Notre Dame Law Review Volume 29 | Issue 3 Article 3 5-1-1954 Grounds for Nullifying Catholic Marriages Albert L. Schlitzer Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Albert L. Schlitzer, Grounds for Nullifying Catholic Marriages, 29 Notre Dame L. Rev. 390 (1954). Available at: http://scholarship.law.nd.edu/ndlr/vol29/iss3/3 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE GROUNDS FOR NULLIFYING CATHOLIC MARRIAGES Since marriage is a contract, it falls under the regulation of law. What is special about Catholic marriages is that two perfect societies - the Church and the State - both have an interest and claim in them. The State often makes claim to a jurisdiction over the matrimonial contract of those who are baptized beyond its competence in the judgment of the Church. Yet, the Church does acknowledge a twofold juris- diction over this contract - jurisdictions which do not con- flict with each other, but, rather, have each their own proper area of competence.' One whose profession is the practice of civil law may feel that he would do well to leave to the legal experts of the Church whatever pertains to Canon law in the marriage con- tract. However, while it is true that for the most part he must leave the actual practice of Canon law to those authorized to act in the ecclesiastical courts, yet he will undoubtedly meet with situations in which he can be of greater help to his clients, if he possesses a fairly adequate knowledge of the laws of the Church on marriage. Concern for the status of Catholic clients with respect to the discipline of the Church should be felt, of course, by every Catholic lawyer, but conscientious non-Catholic lawyers also will want to do all in their power to counsel their Catholic clients in a manner that conforms to the law of the Church. For this reason a brief survey of the regulations of Canon law seems to have a rightful place in a journal devoted to civil law. Futhermore, the alert lawyer cannot help but occasionally cast a critical eye on the legal practice in the ecclesiastical courts. He may hear or read slurs against the Church in the manner in which it handles marriage cases. A few months ago I CODEX IuRis CANONICI, canon 1016 (1918). (390) CATHOLIC MARRIAGES a group of Anglican clergymen cast suspicion on the very integrity of the Catholic Church on the question of marriage. They claimed that there is:2 ... a certain duplicity which is to be detected in the Roman Catholic official mind.... The Roman Church officially upholds the plain teaching of Christ against remarriage after divorce. But in practice it allows it by means of various legal devices - chiefly by multiplying the possible reasons for annulment. Thus the Roman Church manages to gain on the one hand the reputation for strictness, but on the other is able to allow the remarriage of those it particularly desires to please. Instead of stirring up angry resentment, charges such as this can awaken Catholics to their need to know better and more fully the practice of their Church. As a matter of fact, some- times these attacks from outsiders bring out in the open matters that secretly trouble uninformed individuals within the fold. For example, well known people, such as movie stars, are married in the sanctuary of Catholic churches. They have been married at least once before, and their former partner is still living. The newspapers give the event great publicity. Catholics shake their heads shocked and puzzled: how come? Does the Church indeed accomodate its laws to favor wealth and renown? Does the Catholic Church, as these Anglican clergymen charge, cunningly provide for the remarriage of those who are unhappy in their present marriage by "multiplying the pos- sible reasons for annulment"? There is no denying that the legal obstacles which the Church lays down to prevent certain persons from marrying, constitute grounds for an annulment where they are discovered after the ceremony. Call them, if you will, loopholes that weaken the close grip of the presumed marriage bond. But it is sheer nonsense to assert that the Church sets up these obstacles to the validity of the marriage contract with the express purpose of multiplying reasons for 2 INFALrIBLE FALmAcmS, by "Some Priests of the Anglican Communion," quoted in Time, Oct. 26, 1953, p. 69, col. 2. NOTRE DAME LAWYER dissolving the marriages of those whom it desires to please. By laying down these obstacles the Church is looking to the good of the sacrament of matrimony and of religion, not to the weakening of the permanence of the marriage contract. I. Nullifying CausesResulting from Defects in the Act ContractingMatrimony Church Law decrees that the legitimately manifested con- sent of the parties themselves, who meet all the requirements of the law, brings the marriage into existence.' It adds im- mediately that no human power can substitute for this con- sent. Since the will of the man and the woman who join in wedlock has such an essential role in bringing about the mar- riage, the Church has the duty to set forth in law the require- ments for their act of consent to be legally binding. Con- sequently, the Church has written into its Law that certain kinds of error or ignorance,4 certain types of exclusion of full consent,' and certain kinds of fear6 render the matrimonial contract invalid. There is no need here to go into the technical refinements of Canon Law on these points. Suffice to say that not every kind of error, nor every kind of fear, stands in the way of the validity of the contract. Nor does the mere claim of the couple that they did not have the serious will to contract marriage as understood by the Catholic Church suffice to procure from the Church the declaration of nullity. All must be proved accord- ing to the strictest legal standards. The courts of the Church take the stand that the marriage must be held as valid until proven otherwise.' The whole burden of proof rests on those who attack the validity of the matrimonial contract; they must furnish convincing evidence for their case. 3 CODEX IURIS CANONICI, canon 1081 (1918). 4 Id., canons 1082-85. 5 Id., canon 1086. 6 Id., canon 1087. 7 Id., canon 1014. CATHOLIC MARRIAGES A point of particular interest here is that in these matters the Church has done hardly more than to express in legal terminology what the nature of every contract in general, and the conjugal contract in particular, demands. Civil societies legislate on the conditions requisite for the validity of con- tracts. They carefully frame laws in order to safeguard the freedom of consent on the part of the contracting parties. The society which is the Church does the same. For contracts to be binding in it, as well as in civil society, they must meet the requirements laid down by law. It goes without saying that because of the precise conditions laid down in the laws of both societies, it will happen occasionally in both that contracts will be found to be invalid due to failure to meet all the required conditions. Surely no one will accuse the State of laying down these strict requirements for the validity of con- tracts in order to give plenty of opportunity for the lawyers of interested parties to discover reasons why the courts should declare contracts invalid. All the less reason is there for sug- gesting that the Church enacts these laws in order to multiply "the possible reasons for annulment" of the marriages of those whom it particularly "desires to please." Civil law often requires for the validity of legal documents that they be witnessed and signed before a duly authorized notary. The Church exacts a similar action in the conjugal contract. Every Catholic who wishes to marry must satisfy the "Form" established by the Church, that is, his conjugal contract must be witnessed by a priest duly authorized to act in that capacity, usually the parish priest. This legislation of the church stems from her doctrinal teaching that, when the parties to the contract are baptized, marriage is a sacrament and consequently an act not only affecting religion but having deeply religious significance in itself. The Church feels that it has the duty to impress upon its members this truth. In hold- ing them to the "Form," it says in effect to the couple that they must start their married life at the altar, because they NOTRE DAME LAWYER will not be able to live well in married life except through the divine helps gathered from the altar. The Church believes firmly that the marriage of one of its members is so deeply involved in its own proper faith and worship, that the attempt of a Catholic to contract marriage before a non-Catholic minister of religion is a serious offense against the faith and the unity of the Church. For this reason it not only refuses to recognize the validity of such a contract, but also excommunicates the offender.' Everyone who has been baptized a Catholic, or who has been converted to the Church is bound to comply with the "Form" of marriage. Failure to meet this requirement renders the marriage contract invalid.' Here we find another cause for the Church authoritatively to declare some marriages null and void.