The Catholic Lawyer

Volume 1 Number 4 Volume 1, October 1955, Number 4 Article 8

Nullity of in Ecclesiastical Courts

John B. Gest

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NULLITY OF MARRIAGE IN ECCLESIASTICAL COURTS

JOHN B. GEST*

A ANY LAWYERS have had some indirect experience with marriage cases in which one or both of the parties has been in a proceeding in a Court of the Roman for a of marriage. Legal periodicals usually do not discuss such proceedings and it has been suggested that a resum6 of the law and practice involved should be of interest to members of the Bar. The law, the terminology and the procedure (largely influenced by Roman law), are all quite different from that to which we are accustomed in our civil courts in this country. It is well at the start to state some fundamental ideas. The Code of Law was promulgated by Benedict XV,' effective May 19, 1918, and a very few amendments have been added. It has been decreed that the Code is the sole source of , that is, of positive ecclesi- astical law, for the rite of the Church. The Church claims jurisdiction over all baptized persons, and its legislation with respect to marriage applies to all in which one or both parties are validly baptized,

"Member of the Pennsylvania Bar. The Code of Canon Law is, for the most part, a codification of already existing law found in many different sources, including , , Councils, decisions of the Rota and Papal Constitutions and Bulls. It may be superfluous to remind lawyers that nullity either does or does not exist ab initio, and so it is incorrect to speak of a canon law court nullifying or invalidating a marriage. When the issue is validity, the court's decision is that nullity, from the time of marriage, has or has not been proven. For those interested in the cultural background of Canon Law, see "History of the Sources of Canon Law," Part I, of Canon Law, by Archbishop Cicognani (References). While the decisions of the Ecclesiastical Courts have no bearing on the civil status of marriage in this country, it is otherwise in some foreign countries, which give such decrees binding effect in civil law. OCTOBER, 1955 whether Catholic or not. Certain provisions the state to change the essential nature of of the law are, however, expressly limited marriage or to give the right of remarriage to those baptized in the Catholic Church, to any one who has been validly married, as, for example, those prescribing the "Form during the life of the spouse. In the case of of Marriage," which will be discussed later. unconsummated marriage, and of non- It is important to bear in mind that the sacramental marriage (that is, when one or various provisions of the Code are some- both of the parties are unbaptized), the times: (a) explanations or applications of Church claims the right under authority of natural law principles, as when the purposes Scripture and tradition to dissolve such and essential qualities of marriage are stated marriages under certain conditions. One of -(b) the same as to divine positive law, these concerns what is called the Pauline as in statements concerning the sacramental privilege. However, these are unusual and character of marriage, and-(c) purely pos- involve principles not within the scope of itive (ecclesiastical) legislation, as, for this article, which is concerned solely with example, the provisions for certain impedi- declaration of nullity. ments and certain validating conditions, When one of the parties is baptized, the when such impediments or conditions would Church does not recognize any right in the not exist in the absence of legislation. The state to set up conditions for the validity of natural law and the divine positive law the marriage. It does, however, recognize cannot be changed, but the Church can the right of the state to pass reasonable laws change and dispense from her own laws. providing for the civil effects of all mar- Marriage is held to be a contract having riages. In the case of the marriage of two its origin in the natural law. The canon law unbaptized parties canon law does not apply states that the primary object of marriage except to the extent that it is an application is the procreation and education of off- of natural law principles. In such case the spring, and secondary purposes are mutual Church recognizes the right of the state to assistance and the remedy of concupiscence. prescribe conditions for the validity of mar- The essential qualities of marriage are unity riage not inconsistent, of course, with na- and indissolubility. tural law. And in such marriages, that is of the unbaptized, the validity of the marriage The Church holds that marriage is always would be dependent upon conformity with a sacrament when validly contracted by two requirements of the natural law, and the baptized persons.' This includes all validly laws of the state in which the marriage took baptized persons, Protestant as well as place provided the latter do not contravene Catholic. When one or both of the parties natural law principles. In general, natural are unbaptized, the marriage is not sacra- law would require contractual capacity of mental, but it is nonetheless a natural con- the parties, free mutual consent manifested, tract. It is held to be beyond the power of and freedom from natural impediments such 2 A sacrament is defined as an outward sign insti- as existing marriage, or -very tuted by Christ to give grace. The Church teaches much as would be required at common law that there are seven sacraments, , Confir- in our civil courts. mation, Holy Eucharist, Penance, Extreme Unc- tion, Holy Orders and Matrimony. Invalidity of the marriage of baptized THE CATHOLIC LAWYER

persons may result from (a) the existence Some impediments exist purely by reason of an impediment, (b) defect of consent or, of ecclesiastical legislation (canon law) and (c) in the case of those baptized in the a dispensation therefrom can be granted for Catholic Church, from failure to observe the a sufficiently grave cause. form of marriage prescribed by Canon Law. (or worship), i.e., between a baptized Cath- olic and an unbaptized person, is an exam- Impediments pie. Affinity is another example, as when a Under canon law the impediments to man obtains a dispensation to marry his marriage are: deceased wife's sister.' The impediment of existing valid marriage may be taken as an 1. Impedient (impeding) impediments, example of one from which a dispensation which make marriage unlawful but not cannot be granted because it exists under invalid; and divine law independently of legislation. 2. Diriment (from the Latin dirimere, to destroy, frustrate, take apart) impediments Matrimonial Consent which render a marriage invalid. Canon law requires that the consent of As this discussion is confined to nullity the parties be duly manifested. This consent cases, we are not here concerned with the is a free act of the will by which the parties first class, impedient impediments.' mutually give the perpetual and exclusive Diriment impediments (which invalidate right to the acts suitable for the procreation marriage) are those concerning age, impo- of children. tency,' existing valid marriage bond, dis- The law provides that error as to the per- parity of cult, holy orders, solemn vows, son renders a marriage invalid. An error, certain kinds of abduction, crime (i.e., however, as to a quality, for example, adultery or conjugicide, both under specified wealth, lineage, virtue, which did not conditions), consanguinity, affinity, public amount to an error of the person, would not propriety and spiritual and legal relation- invalidate the marriage. ship.' Error as to the unity, indissolubility, or sacramental character of marriage does not vitiate the consent. However, it is provided The two classes of impediments are analogous to the conditions in civil law, some affecting lawful- in the Code that if one or both of the parties ness, and others the validity, of the marriage. An by a postive act of the will excludes marriage example of the first class (impediment), is a simple or an essential property of marriage the vow of celibacy by a layman. contract would be null. The distinction is Sterility is not an impediment of any kind. important. For example, if one mistakenly It is impossible in the space available to discuss these terms except very generally. Consanguinity relates to marriage of second cousins or closer parties incapable of marrying on account of legal relatives. Affinity relates to marriage with first adoption. The Canon Law adopts the civil law in cousins or closer relatives of a deceased spouse. this impediment. Disparity of Cult is in marriage forbids the marriage of a man between a baptized Catholic and an unbaptized with the close relatives of one with whom he has person. lived in public or notorious concubinage. Spiritual ' Henry VIII argued unsuccessfully that his mar- relationship exists between a baptized person and riage to his deceased brother's widow was against the minister and sponsors at the baptism. Legal natural law and that the dispensation was therefore relationship exists where the civil law declares invalid. OCTOBER, 1955

believes that and remarriage are The Code also lays down certain princi- consistent with the nature of marriage, his ples or rules for determining the validity of marriage is valid. That is an interpretive marriage when a condition is placed upon error in the understanding, and is not in the the consent. will. But if he understands that marriage is Failure to meet the canon law require- indissoluble and deliberately restricts his ments relating to consent is broadly spoken intention by excluding that essential of mar- of as an impediment, but the correct desig- riage, then his marriage is invalid by defect nation is a defect of consent. of consent.'

The law further provides that marriage is Form of Marriage null when it is contracted because of vio- The Code contains provisions concerning lence or grave fear, caused unjustly by an the "Form of Marriage," obligatory on per- external agent, to free himself from which sons baptized in the Catholic Church, as a one is compelled to choose marriage. necessary condition for validity. This re- The parties to the marriage must be pres- quires the presence, under ordinary circum- ent, either personally or by proxy, and the stances, of a duly authorized priest and two matrimonial consent must be manifested by witnesses. That is why the marriage of a words if the parties can speak; otherwise, Catholic before a minister, judge or other signs are used. is invalid. The requirement of the form of marriage ' Two cases which attracted much attention may be cited to illustrate the difference between an inter- (presence of priest and two witnesses) is pretive misunderstanding of the nature of marriage only binding on those baptized in the Catho- on the one hand, and the wilful exclusion of the lic Church and therefore only affects mar- essential quality of permanence on the other. In 1895 Count de Castellane married Anna riages in which one or both of the parties are Gould. After eleven years she secured a divorce baptized Catholics. Since the form of mar- and remarried. The Count sought a declaration of riage is a requirement of ecclesiastical law, nullity on the ground of a condition contrary to the perpetuity of the bond placed by Anna before and not of natural law, a dispensation can and at the time of marriage. There was a great deal be obtained under certain conditions. And of testimony showing that the bride believed in the so far as concerns form, the marriages of possibility of divorce. After much study the final other than Catholics are valid if they satisfy decision of the Rota was that there was not a positive act of the will or conditio sine qua non natural law requirements (and also State excluding a perpetual union. This was an inter- requirements in cases in which neither party pretive error. is baptized).' The Marconi case was different. In 1905 he had married Beatrice O'Brien. They were divorced in 1924. There was an explicit pre-nuptial agreement Before the "," in 1908, canon between the couple and between the groom and law did not require the presence of the priest as a the bride's mother that there would be a divorce condition for validity of Catholic marriage in should the union not prove happy. In other words large parts of this country, and prior to a change their contract of marriage was made with a reser- in the code effective January 1, 1949, it was not vation of the right to divorce. This was not an required of a baptized Catholic whose parents interpretive error and the marriage was held in- were not Catholic and who had not been brought valid. up as a Catholic. (Condensed from Ayrinhac-Lydon, 230, 231, Marriage is in the free exchange of consent of see References). the parties, mutually expressed; in sacramental THE CATHOLIC LAWYER

The Court There is a Promoter of Justice, usually Each is bound to have a tribunal appointed permanently, for each diocese. for hearing and deciding ecclesiastical cases. His duty is to intervene in cases in which It is presided over by the Officialis (Presi- the public good is concerned and to safe- dent Judge) appointed by the Bishop, and guard procedural law. associated with him may be one or more The Defensor Vinculi, or Defender of the Vice-Officiales (Judges). There are also a Bond, is appointed by the Bishop either number of Synodal, or pro-Synodal judges.!' permanently or for a particular case. His Nullity cases, except where they can be presence is usually required at the exam- determined by summary process (see Pro- ination of witnesses, although he may be cedure, infra) are tried by a court of three excused at the discretion of the . His Judges (Collegiate Tribunal). One of the duty is to present all facts and argument in Judges must be the Officialis, or a Vice- favor of the validity of the marriage, and to Officialis (Presiding Judge). He may desig- prepare the questions to be presented to all nate a Ponens whose duty is to report on who are cited to give testimony in the case." the case and write the Sentence (or Judg- ment). There are also Procurators (attorneys) and advocates available. In this country they An Auditor is appointed, either perma- nently or for a particular case. He is usually to those concerned with reform of our Divorce chosen from among the Judges. He sum- Law. In a note in the University of Pennsylvania mons and examines witnesses, and has such Law Review, June, 1953, p. 1204, The Administra- other duties as may be assigned to him by tion of Divorce, it is said: "It is apparent that many masters seriously the terms of the mandate of his appointment, misapprehend their statutory function. Many law- for example, to sign citations, examine and yers conceive the function of the master to be compare documents and administer oaths. merely to decide whether a case has been made out; even judges are sometimes inclined to con- His position is somewhat like that of a sider it sufficient that the interests of both parties Master in our civil divorce practice, but in have been protected, overlooking the state's inter- forwarding the record to the Judges he does est in the matter. Some lawyers even feel that the not make findings, conclusions or recom- master should aid the plaintiff in the presentation of his case and the occasional master who diligently mendations." probes the plaintiff's allegations is likely to find himself the object of other lawyers' criticism for marriages the parties are the ministers of the sacra- treating the plaintiff 'like a defendant in a criminal ment. The presence of the priest and the witnesses trial'." (1222, 1223). are validating requirements by legislation, not by natural or divine law. " The duties of the suggest Marriage defective in required form is often those of the Proctor in the English Court. It is said referred to as "clandestine." in the same note (supra) that: Synodal judges are those appointed at a diocesan "... In England the public interest is protected Synod which is an extraordinary convocation of by an officer known as the Proctor, who inter- venes, instructs the diocese, presided over by the Bishop. He is the counsel when so directed by the court and sole legislator. Prosynodal judges are those ap- investigates the possible existence of pointed between Synods. The term of office of collusion. In the United States less than half the these judges is for ten years unless a Synod is jurisdictions have any provision for an office which held sooner. resembles the Proctor, and those statutory provi- sions which 'The duties of the Auditor should be of interest do exist generally cut down the scope of the office." (1224) OCTOBER, 1955 are always members of the clergy. A Pro- parties unless they have been the cause of curator (attorney) is appointed for each the impediment. The Promoter of Justice case from the list of advocates, with author- may impugn the marriage in the case of ity to represent the Libellant, and to accept impediments of a public nature, or when a service of notice and other papers. One may marriage has been denounced by a party not be appointed for the Respondent. One or entitled to impugn it and the public good more advocates may also be appointed to demands it. file briefs and present argument on points When a party believes there is ground to of law involved. question the validity of his or her marriage These officers of the Court usually have the advice of the local priest is usu- degrees in canon law and have been trained ally sought. The party is then referred to the in Rome or in the Graduate School of the Officialis and he in turn will designate one Catholic University of America. of the advocates to make a preliminary re- There is also at each trial a Notary desig- port. The party may, however, go directly nated by the Presiding Judge. His duty is to to any of the advocates in the first instance.' commit the questions and answers to writ- An Auditor is then appointed. He makes ing, to attest the record and certify copies, a preliminary report on the facts as sub- to be present at the drafting of process and mitted and the competency (jurisdiction) of its discussion and so forth. the Court and submits the same to the Offi- cialis. If there is probable cause for the The Proceeding action, the Libellant signs a mandate to an There are two procedures for a declara- attorney, similar to a power of attorney, and tion of nullity, their applicability depending one or more advocates may be appointed. upon the nature of the case. The more sim- A libel is prepared, signed by the plaintiff ple form, summary process, applies to cases or the attorney, and filed with the Officialis. in which it is known from sure and authentic He then designates the collegiate tribunal documents that a marriage was made invalid of three judges and they determine the juris- by an impediment of disparity of cult, holy dictional question and the right of the plain- orders, of chastity, previous tiff to act and they either accept or reject the marriage bond, consanguinity, affinity or libel. If the libel is rejected for defects which spiritual relationship, and it is certain that can be corrected, an amended libel may be no dispensation has been obtained. Then the filed. Bishop or his delegate can declare the nullity The examination of the parties and wit- of the marriage after summoning the parties nesses is conducted by the Auditor. The and giving the Defender of the Bond an opportunity to examine into the case. "The names and addresses of all the members of By far the greater number of declarations the court and the advocates for the Philadelphia diocese are published in the Catholic Directory in of nullity are under this summary process. Philadelphia. No doubt similar publicity is effec- All other cases go before the tribunal of tive in all . Parties seeking advice should three Judges. be referred to the Officialis. or one of the Advo- cates. The investigation of a case of invalidity of A marriage may be impugned (i.e., va- marriage includes the question of a possible valida- lidity questioned) by one or both of the tion having taken place. THE CATHOLIC LAWYER

Judges do not attend. The Promoter, the nesses might be directed, and other judges Defender and the Notary are present, and can be appointed. In nullity of marriage the only one witness at a time. Ordinarily the sentence is "Constat de Nullitate" when parties (with their attorneys or advocates) nullity is proved, or "Non Constat de N'ul- are not admitted while not actually testi- litate" when nullity is not proved. fying, but exceptions to this rule may be The Instructions issued from Rome pro- made in the discretion of the Auditor. Ques- vide that if an impediment is of such a nature tions, which may be supplemented by the that the consent of the consort suffices to Auditor, are prepared in writing by the remove the obstacle to the marriage, the Defender of the Bond in advance of the Officialis should submit the matter to the trial and submitted in a sealed envelope and Bishop, who, according to circumstances, opened by the Auditor in the Court room. may instruct the pastor or other priest to The Procurator and the Promoter of Justice seek to induce the consort to validate the may also submit questions to the Defender marriage.1 of the Bond for submission by the latter to If the court of first instance decides that the Auditor, and further questions may be the marriage is invalid, the Defender of the presented during the examination. Bond is obliged to appeal to another court. The Notary commits to writing all the This is usually the Metropolitan (Arch- questions and answers. Each witness is bishop's) Court, unless this court was the sworn both before testifying and after read- court of first instance, in which case the ing the answers, or having them read to him, Court of Appeal would be that of the and signing the written record. The oath is particular Bishop or Archbishop whose similar to that of our civil courts and affir- court has been chosen by the Archbishop mation is acceptable on the part of any wit- and approved by the Holy See as a perma- nesses who are opposed to swearing. nent Court of Appeal for such cases. The After the completion of the hearing or appeal can be taken directly to the Rota. hearings, a brief is prepared by the Procu- If the Court of Appeal confirms the sen- rator (attorney) representing the party in tence of the court of first instance against action (plaintiff), and one or more of the the validity of the marriage, the Defender advocates may file briefs. The defendant or of the Bond may acquiesce, unless he con- his attorney may also file a brief. These are scientiously thinks that a further appeal delivered to the Defender of the Bond and ought to be taken. he prepares a brief presenting any reason- If there is no appeal from the second judg- able grounds in favor of the marriage, and ment of invalidity within ten days, then the submits the record and briefs to the Court. parties are free to marry. The result of the The judges then study the record and briefs and each separately prepares an opin- "Referring to our civil divorce law, the above mentioned note "The Administration of Divorce" ion. They then meet at a fixed time, and after states: discussion, if an agreement is reached the "One fault with present divorce procedure is sentence (judgment) is written by the the absence of any provision for an attempt to heal the marital rift. This need has been recognized by Ponens (Recording Judge). If no decision recent proposals for reforming divorce proced- can be reached, further examination of wit- ure. .." (1224) OCTOBER, 1955

trial is noted on the baptismal and marriage The rights of the poor are carefully pro- records of the parties. The opinions of the tected. Canon Law provides that those who diocesan judges are preserved and kept are unable to bear the expense of their case secret for ten years and then destroyed. have a right to be relieved of all costs, and those who are partially unable have a right The expenses borne by the parties in a to a reduction of the costs. There is a roll nullity case are established by the court, and of advocates entitled to practice in the Rota. they are actually less than the clerical ex- Their fees are quite moderate and are all penses of the trial and considerably less regulated by a schedule. Some laymen, espe- than the expense of a civil divorce case. The cially trained in canon law, are on the roll of judges receive no compensation other than advocates. The sentences, i.e., the decrees, their regular salaries as priests. Parties who with review of facts and law, are published certify that they cannot pay are exempt. In in bound volumes after ten years from date the summary process referred to the fee is of deliverance. nominal and, again, does not cover the actual expense. The records of the Rota decisions for 1953, published in the May, 1954, issue of the official "," show The Rota that 172 cases involving the validity of Appeals may be taken from the Diocesan marriage were decided in that year. Nullity Court to the Rota in Rome, which is the highest court of appeal. This consists of six- teen judges who are Doctors of Theology coercion, threatened that a refusal to marry the and of Canon Law and they are known as groom would cause her death through heart Auditors. They hear matrimonial trials in failure and practically imprisoned the bride in order to force her to marry him. The Court held groups of three or more judges, but cases that the marriage was contracted because of grave may also be heard by the entire court. Ad- fear within the meaning of the Code of Canon vocates appear for the parties and file Law. A question raised was whether cohabitation had not supplied consent. On this the law provides briefs.' that for validation of an invalid marriage the re- newal of consent must be a new act of the will ratifying a marriage known to have been null. In " The decisions of the Rota have not always had the absence of this knowledge there is only a a good press in this country and misunderstanding continuance of the same consent. There was no has often resulted. An example is the famous proof or presumption of such knowledge and no Marlborough-Vanderbilt case which attracted at- validation since the requirements for validation tention on account of the prominence of the par- had not been met. (It should be noted again that ties. the Code of Canon Law not only states natural In 1894 Consuelo Vanderbilt married the Duke law but legislates positive law). (See Ayrinhac- of Marlborough in an Episcopalian Church in Lydon, para 215, References). New York. There was discord from the beginning. The cynical suggestion that money had anything A separation took place in 1905 and a civil divorce to do with the case should be easily dispelled. was obtained in 1920. After both had remarried. Consuelo Vanderbilt Balson, the plaintiff in the Consuelo, in 1926, brought a proceeding for nul- case, writes in "The Glitter and the Gold" that lity in the Court of the Catholic Diocese of South- the accusation is completely false, saying:-"Coun- wark. The decision was for nullity. It was appealed sel fees and costs of collecting evidence were the to the Rota and affirmed. There was ample testi- only disbursements and were much less than the mony showing that the bride's mother used charges of a real divorce." THE CATHOLIC LAWYER

Affirmat Negative was declared proven in 65 cases and not ive (Nullity proven in 107 cases.'" Basis of Nullity (Nullityy) Not Proved) Total Defects of Consent: The following further facts concerning Force and Fear .... 21 33 54 these 172 cases may be of interest: Insanity ...... 1 Cases in which the advocate collected Defect of Liberty... I a fee ...... 106 Simulated Consent. 9 Cases in which no fees or costs were Conditions collected ...... 66 (Unspecified) . . 3 12 15 Intention or Condi- Total ...... 172 tion Affirmative decisions with fee ...... 40 Against Unity of Negative decisions with fee ...... 66 Marriage .... 3 4 7 Affirmative decisions (nullity) without Against Indissol- fee or costs ...... 25 ubility ...... 17 9 26 Negative decisions (nullity not proved) Against Pro- without fee or costs ...... 41 creation ..... 23 36 59 Total ...... 172 Total ..... 83 126 209 The breakdown on the basis of averred causes of nullity was as follows: The total of 209 exceeds the total cases of 172 because more than one ground was averred in a number of cases, and the deci- Negative Affirmative (Nullity sion is simply that nullity is or is not proven Basis of Nullity (Nullity) Not Proved) Total on one of the claimed bases. Impediments: Bond of previous REFFERENCES marriage ...... 2 1 3 Cicognani, Amleto Giovanni, Canon Law, Consanguinity .... - 1 I Dolphin Press (1934). Affinity ...... - 1 I Doheny, William J., C.S.C., Canonical Pro- cedure in Marriage Cases, Formal, Bruce Impotency ...... 3 16 19 Pub. Co. (1948). Woywood, Stanislaus, O.F.M., A Practical The analysis of the 1954 figures are not available Commentary on the Code of Canon Law, as this goes to press, but the totals are available Jos. E. Wagner, Inc. (1952). unofficially: Ayrinhac-Lydon, Marriage Legislation in the 245 marriage cases were decided by the Rota in New Code of Canon Law, Benziger Bros. 1954 of which the decision was affirmative (nul- (1940). lity proven) in 131, and negative (nullity not proven) in 114 cases. Of the total of 245, 55 were Bouscaren, T. Lincoln, S.J., The Canon Law free cases. Digest, Bruce Pub. Co.