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Eccelesiastical Marimonial Tribunal

Providing expert guidance and compassionate support throughout the process of ecclesiastical marriage annulments with a deep understanding of Church laws.

The Sacrament Of Marriage And The Marriage Nullity Cases

Introduction

The Code of Canon Law has devoted 111 Canons (1055-1165) to marriage, more than any other Sacrament in Book IV, “The Sanctifying Office of the Church”. In Book VII, “Process”, there are 352 Canons (1400-1752) and among them a good number of Canons speak about the procedures for the marriage nullity cases. Hence there are some 400 Canons in the Code, which speak about the Sacrament of marriage and marriage nullity cases.

1– The Tribunal And The Marriage Nullity Cases

1.1 What is a Tribunal?

The Tribunal is a Church court, which is essentially about rendering justice while applying the Church’s Canon Law. In other words, the Tribunal is a judicial body and a pastoral ministry of the Church, which deals with issues involving injustices and any cases that might need the interpretation of the Church’s own Law. In most dioceses its major work involves the review of failed marriages.

1.2 What is an annulment or a declaration of invalidity of marriage?

The Tribunal is a Church court, which is essentially about rendering justice while applying the Church’s Canon Law. In other words, the Tribunal is a judicial body and a pastoral ministry of the Church, which deals with issues involving injustices and any cases that might need the interpretation of the Church’s own Law. In most dioceses its major work involves the review of failed marriages.

1.3 Does an annulment make the children of this marriage illegitimate?

No. The law of the Church clearly states: “Children conceived or born of a valid or putative marriage are legitimate” (Canon 1137). A putative marriage is one that was entered into with good faith on the part of at least one of the parties. Since virtually all marriages are entered into with good faith on the part of one of the parties, we can say with confidence that the status of children is not affected by the granting of a Declaration of Nullity. It is important to note that a declaration of nullity does not excuse either parent from his/her natural obligations toward the children or the other spouse. The Church will ask for assurance that the obligations of child and spousal support are being met prior to authorizing a new marriage.

1.4 Is the Respondent called for the enquiry?

Yes. An annulment, though usually sought by only one party to a marriage, has the same effect on both parties, that is, it frees each party from any ecclesiastical / canonical bond of marriage, which was thought to have existed. The Tribunal has a canonical obligation to contact the Respondent and invite him/her to present his/her “side” of the marriage to the Tribunal. A marriage nullity case may not proceed unless the Tribunal has the opportunity to contact the Respondent who alone decides whether to co-operate with the Tribunal or not. A marriage nullity case can proceed to conclusion without the Respondent’s involvement, but not without his/her having been contacted.

1.5 What about the witnesses?

At least three persons who have known the Petitioner and the Respondent well during their courtship, at the time of the marriage and into the early part of the marriage and are willing to be interviewed must be named by the Petitioner as Witnesses. The Respondent may also nominate Witnesses. In some cases there may be medical, psychological, and/or psychiatric reports available shedding light on a marriage, which may be requested by the Tribunal.

1.6 Does an annulment have any civil effect?

The declaration of invalidity of marriage (annulment) does not have any civil effect in India on anyone, the parties or their offspring. There are no civil effects regarding child custody, alimony, property rights, etc.

1.7 Should one have to have a civil decree of divorce before he/she begins annulment proceedings?

It is presumed that, when a person approaches the Tribunal, all avenues of reconciliation have been attempted and proven unsuccessful. While not absolutely necessary prior to initiating a case of nullity of marriage, a civil decree of divorce provides the Tribunal with the assurance that the common life of the couple has been terminated in an irretrievable fashion. A decree of divorce will be requested before a final decision is reached in a marriage nullity case.

1.8 How to start the procedure?

In the Archdiocese of Pondicherry &Cuddalore any person who wishes to clarify his/her status in the Church can approach the Tribunal office. If the Tribunal of the Archdiocese of Pondicherry &Cuddalore has the competence to take up the case, then the person, who approaches the Tribunal office, will be asked to submit his/her petition for annulment. He/she will be directed to attach the following documents along with his/her petition:
  • The original Marriage Certificate (not a photocopy)
  • The original Baptism Certificate of the Petitioner (not a photocopy)
  • The original Baptism Certificate of the Respondent (not a photocopy)
  • The photocopy of their civil divorce decree
  • Any other document that is relevant for the case

1.9 How the case is conducted?

After acceptance and the formulation of the joinder of issues the Tribunal will collect the deposition from the parties (Petitioner and Respondent) and will collect the testimony from the Witnesses. Then if it is believed that all likely testimony has been received, both parties will be notified and given the opportunity to come to Tribunal office to review the case file, to provide additional information, to propose more witnesses, etc. Then the case will be concluded and given to the Defender of the Bond, whose role is to argue everything in favour of the Bond of marriage. After the Defender of the Bond has finished the review and brief, the case will be presented to the Judge for a decision. Once the decision is rendered the parties will be notified and given two weeks to review the sentence and/or to appeal. After that period, if no appeal is initiated, the case will be sent to the Appeal Tribunal for the mandatory review/confirmation. If the Appeal Tribunal confirms the decision the parties will be notified and a certificate of annulment will be issued to the parties.

1.10 How long does the procedure take?

Each case is dealt with individually. Due to the great number of cases and other factors, such as the requirements of the Church’s procedural laws, time cannot be specified. It is currently estimated that the processing of a given case will take at least 18 months from the date the case is submitted to the Tribunal. While the Tribunal will process each and every case as efficiently as possible, this time estimate is not a guarantee.

2 – The Sacrament Of Marriage

2.1 The nature of marriage(C 1055 §1)

Marriage is a Covenant. It is a Sacrament between the baptized. It is a partnership for the whole of life and its ends are 1) the good of the spouses, and 2) the procreation and education of the children.

2.2 The essential properties of marriage(C 1056)

They are Unity and Indissolubility.

Unity – It means that marriage is an exclusive relationship between one man and one woman. In marriage, a man and a woman mutually give and accept each other. To include anyone else within this privileged sphere of marital intimacy violates the unity proper to marriage. Hence all forms of polygamy, whether it be polygyny, where one man has several wives, polyandry where one woman has several husbands, or so-called ‘group marriages’ where several men ‘marry’ several women are against the Unity.

Indissolubility – It means that it is a perpetual relationship, which not only should not be terminated but also cannot be terminated, even if the couple’s existential relationship is irretrievably broken. Christian sacramental marriage reflects the unbreakable union of Christ with his Church.

2.3 What brings marriage into being?(C 1057)

  1. Consent by both parties makes the marriage. Consent is the efficient cause that brings marriage into being. Hence a real act of consent by both parties is absolutely necessary for a marriage and no human power, parents, family, state or church can supply this consent. Matrimonial consent is an act of the will by which a man and a woman mutually give and accept each other.
  2. The consent must be ‘lawfully manifested’. Marriage is not merely a private matter between the spouses but has important implications for the whole of society. Accordingly, entrance into it is effected not by a purely private exchange of consent, but by a public ceremony involving certain legal or customary formalities. For Latin Catholics, legitimate manifestation of consent normally entails the observance of the Canonical Form.
  3. The parties who exchange the consent in marriage must be ‘legally capable of marriage’. The law has established a number of impediments to marriage, which disqualify persons either from any marriage (for example, the impediment arising from sacred orders) or from particular marriages (for example, the impediment of consanguinity).
Hence to these three requirements correspond, in general terms, the three ways in which a marriage may be invalid – 1) defect of consent, 2) defect of canonical form, 3) the existence of the impediments.

2.4 Diriment impediments (CC 1073-1094)

A diriment Impediment is a circumstance that bars a person from marrying. It renders a person ineligible either for any marriage or for a particular marriage. They invalidate attempted marriages even when the parties bound by them are ignorant of or in error about them and their effects.
The impediments derive either from divine law or from ecclesiastical law. The divine law impediments bind all persons, whether they are baptized or not, whether they marry Catholics or not. But the ecclesiastical law impediments bind only Catholics and non-Catholics who marry them. The divine law impediments are not subject to dispensations. But the ecclesiastical law impediments are subject to dispensation.
  • Lack of Age
To give valid consent, a person must possess sufficient intellectual and emotional maturity to appreciate and assume the responsibility for lifelong obligations and the physical maturity to consummate the marriage by sexual relations. The minimum age for marriage for men is sixteen and for women fourteen. The marriages entered into before these minimum ages are invalid. Since the impediment of lack age is a matter of ecclesiastical law the local ordinary can dispense from the impediment for a sufficiently grave cause, but prudence suggests that such dispensations should not be granted. (According our Indian Civil Law the minimum age for marriage for men is twenty-one and for women eighteen).
  • Impotence
It is the incapacity of a spouse to perform a complete conjugal act. To be potent, a man must have a penis, be capable of maintaining an erection long enough to penetrate the vagina at least partially, and to ejaculate there; a woman must have a vagina and be capable of receiving the erect penis. The impotence can be organic and functional. The organic impotence results from the absence, malformation, or underdevelopment of the genital organs, which renders the completion of intercourse impossible. The functional impotence results from a nervous or psychological condition that prevents the person from completing the act of sexual intercourse despite his or her possessions of intact genital organs. The impotence may be either absolute or relative. Absolute impotence prevents marital relations with any partner and the Relative impotence renders one incapable of marital relations only with some partners. To invalidate marriage, impotence must be both antecedent to the exchange of consent and perpetual. Since the impediment of impotence is intimately connected to the essential purposes of marriage, it is generally considered to derive from divine natural law. Therefore it is not subject to dispensation. While impotence, the incapacity to complete a conjugal act, invalidates marriage, sterility, the incapacity to generate offspring does not invalidate marriage.
  • Prior Marriage Bond
It is one both of natural law and of divine positive law, based upon the essential properties of marriage, namely unity and indissolubility. Accordingly a dispensation from it may not in any circumstance be granted, by either Church or State: this is so even in respect of two unbaptized people who were validly married to one another in accordance with the civil laws or customs of their own country or region. If the previous marriage is invalid or for any reason dissolved, a further marriage may not lawfully take place unless the appropriate authority will have possession of clear proof that the earlier marriage was declared invalid or was lawfully dissolved.
  • Disparity of Cult
This impediment invalidates a marriage between a baptized catholic and an unbaptized person. The reason for the impediment is twofold: 1) the difficulty the catholic partner may encounter in practising his or her faith, and 2) the danger that children of the marriage may not be brought up as Catholics; at a deeper level, because such a marriage is not sacramental, it does not fully mirror either the covenant between God and his people or the relationship between Christ and the Church as Christian marriage should. Since it is an ecclesiastical law dispensation can be granted to permit a Catholic to marry an unbaptized person if there is sufficient assurance that the proposed marriage will not pose a threat to the Catholic’s ability to continue the practice of his or her faith and to hand on the Catholic faith to their children. This assurance is to be given by the Catholic party in the form of promise.
  • Sacred Orders
The impediment of sacred orders arises from the valid reception of the orders of bishop, presbyter, and deacon. In ordinary circumstances, dispensations from the impediment of sacred orders are reserved to the Apostolic See. The Apostolic See does not grant dispensations to those ordained to the episcopate. Dispensations from the impediment arising from the order of presbyter are normally granted only by the pope as part of the process of returning to the lay state (CC 290 3º, 291).
  • Perpetual Vow of Chastity
In order to give rise to the impediment, the Vow of Chastity must fulfil three requirements: 1) It must be public – that is, accepted in the name of the Church by a lawful superior, 2) It must be perpetual – that is, taken until death, as distinct from a temporary vow which is taken only for a determined period, 3) It must be taken in a religious institute. In ordinary circumstances, dispensations from the impediment are reserved to the Apostolic See for members of pontifical right institutes and to the local ordinary for members of diocesan right institutes. In danger of death situations, local ordinaries can also dispense members of pontifical right institutes, and when the local ordinary is unavailable, pastors and the others mentioned in Canon 1079 §2 can dispense members of all religious institutes.
  • Abduction
A girl is abducted or at least detained by a man with a view of contracting marriage with her. This impediment applies only to women. This impediment makes it clear that as long as a woman remains in the control of her abductor, she lacks the freedom to consent to marriage with him. It is an ecclesiastical law impediment. Although the local ordinary could dispense from this impediment it is not easy to see what circumstances would justify him in doing so.
  • Crime
The crime that gives rise to an impediment to marriage is conjugicide (coniugicide). 1) The impediment arises when, for the sake of marriage with a definite person, one murders his or her own spouse or the spouse of that other person. It is not required that the other person participate in or even be aware of the murderer’s actions and intent. What required is that one’s actions actually bring about the death of a spouse and that the murder is carried out for the purpose of marrying a certain person. Thus, the impediment does not arise from the accidental killing of one’s own or another person’s spouse. Nor is it sufficient that one murder one’s own spouse for the purpose of becoming free to re-marry in general; the murder must open the way to a marriage with a definite person. 2) The impediment of crime also arises when two people conspire to bring about the death of the spouse of one of them. In ordinary circumstances, a dispensation from the impediment is reserved to the Apostolic See, which does not usually grant the dispensation when the facts on which it is based are public. In danger of death situations, the impediment can be dispensed by the local ordinary and, when he is not accessible, by pastors and the others mentioned in Canon 1079 §2.
  • Consanguinity
Consanguinity is the blood relationship between persons who descend, either legitimately or illegitimately, from a common ancestor. It invalidates marriage in all degrees of the direct line (father-daughter-granddaughter) and up to the fourth degree of the collateral line inclusive (first cousins). Consanguinity in any degree of the direct line is a divine law impediment and that consanguinity in the third and fourth degrees of the collateral line is an ecclesiastical law impediment. Hence the local ordinary can dispense from the impediment in the third (uncle-niece) and fourth degree (first cousins) of the collateral line.
  • Affinity
While the impediment of consanguinity arises from a blood relationship, the impediment of affinity is based on a marital relationship. Affinity arises from a valid marriage, whether it is consummated or not, between the man and the blood relatives of the woman and between the woman and the blood relatives of the man. It does not arise, however, between the blood relatives of the man and those of the woman. Like consanguinity, affinity is computed in lines and degrees. A person is related by affinity to his or her spouse’s blood relatives in the same line and degree as his or her spouse is related to them by consanguinity. Thus, a man is related to his wife’s mother in the first degree of the direct line and a woman is related to her husband’s brother in the second degree of the collateral line. The impediment of affinity invalidates marriage in all degrees of the direct line. The local ordinary has the power to dispense from it. However, he should have a very serious reason for doing so; under the previous law a dispensation from affinity in the first degree of the direct line was granted only very rarely and in extraordinary circumstances.
  • Public Propriety
It is similar to the impediment of affinity in that it affects a man and the blood relatives of his partner, and vice versa. The basis for affinity is a valid marriage; the basis for the impediment of public propriety is a stable union other than marriage. The parties are living together after an invalid marriage, or from simple cohabitation without any ceremony; the cohabitation must be notorious and public, well known to the people. The impediment of public propriety invalidates marriage between the man and the blood relatives of the woman and the woman and the blood relatives of the man, but only in the first degree of the direct line. That is, the impediment invalidates a marriage between the man and the woman’s mother or daughter from another union and between the woman and the man’s father or son from another union. Since it is an impediment of ecclesiastical law and can be dispensed by the local ordinary in ordinary circumstances and in the extraordinary circumstances by those mentioned in Canons 1079-1080.
  • Adoption
The impediment invalidates marriage between the adopted person and those related to him or her by adoption in all degrees of the direct line and up to the second degree of the collateral line. That is, adopted persons cannot validly marry their adoptive parents and grandparents or their adoptive brothers and sisters. The impediment of adoptive relationship does not arise unless there is first an adoption recognized by civil law. Since it is an impediment of ecclesiastical law the local ordinary can dispense from it as can those mentioned in Canons 1079-1080 in the circumstances foreseen in those canons.

2.5 The Elements of Canonical Form (C 1108)

When a Catholic enters marriage, the Church ordinarily recognizes the union as valid only if the Canonical Form of marriage is observed in its celebration. In other words, one must exchange marital consent in the presence of an authorized minister of the Church and at least two additional witnesses. The authorized ministers are 1) the local ordinary, 2) the parish priest, 3) a priest delegated by either of the above, 4) a deacon delegated by the local ordinary or the parish priest. The authorized witness of a marriage must be not only physically present but also an active and willing participant in the event. This active participation involves asking the spouses to manifest their consent and receiving that consent in the name of the Church. The authorized witness must ask for and receive the consent of both parties, even if one of them is not a catholic. When other priests or deacons or, in the case of mixed marriages, non-catholic ministers are present, the responsibility for asking for and receiving the consent of the spouses is not to be divided. Unless the authorized witness alone asks for and receives the spouses’ consent, the marriage is invalid. Other ministers merely observe the exchange of consent, but they can be given other appropriate liturgical roles in the celebration.
Two additional witnesses – the presence of them is as essential for the valid celebration of a marriage as the presence of an authorized minister. The Code does not stipulate any detailed qualifications for them. To function as witnesses they should possess the use of reason and be capable of understanding the events they are witnessing. Although no minimum age is specified for these witnesses, those who have not completed their fourteenth year may not serve as witnesses in canonical processes. Clearly excluded from the function of witness are those who are insane, intoxicated, or severely developmentally disabled.

2.6 Matrimonial consent (CC 1095-1107)

Since consent alone brings marriage into existence, substantial defects in consent render the marriage invalid. Although titled, “Matrimonial Consent”, this part is devoted primarily to enumerate the invalidating defects of consent, the ‘dark’ or ‘shadow’ side of matrimonial consent.
  • Consensual Incapacity (C 1095)

Canon 1095 says, “The following are incapable of contracting marriage: 1º those who lack the sufficient use of reason; 2º those who suffer from a grave lack of discretionary judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted; 3º those who, because of a psychological nature, are unable to assume the essential obligations of marriage”.

  • Lack of sufficient use:
Without the use of reason a person cannot know what marriage is or what he or she is purporting to undertake in getting married. The person is incapable of a responsible human act and so cannot consent validly. If a person lacks the fundamental ability to know then he cannot consent validly. Such a lack may result from a more or less permanent condition such as severe mental handicap, a psychotic mental illness or brain damage, or it may be due to a temporary deprival of intellectual function caused that is by drunkenness or drug abuse.
  • Lack of Due Discretion:
A person may possess sufficient use of reason to have a rudimentary and abstract understanding of marriage and its obligations and to intend marriage so understood but still be incapable of consent, if he or she lacks the ability to deliberate critically about this choice in the concrete. The following can affect a persons discretionary judgment – very low intelligence, brain damage, mental illness, personality disorder, the influence of alcohol or other drugs, serious psychological pressure due to pregnancy, etc.
Inability to assume the essential obligations of marriage due to psychic causes: The defect lies not in the elements of consent itself but in its object. What is at issue is not the person’s capacity for critical deliberation, but his or her inability to put into effect one or more of the rights and obligations given and accepted in consent. This inability is due to psychic causes. There are some psychosexual abnormalities, which make a person incapable to assume the essential obligations of marriage. They are, Nymphomania, Satyriasis, Sadism, Homosexuality, Lesbianism, Masochism, pedophilia, bestiality, necrophilia, trans-vest-ism, trans-sexual-ism, etc.
  • Ignorance (C 1096)
If an error about the unity, indissolubility, or sacramental dignity of marriage does determine the will of the person then such person’s consent is invalid.
  • Error of Law (C 1099)
Canon 1095 says, “The following are incapable of contracting marriage: 1º those who lack the sufficient use of reason; 2º those who suffer from a grave lack of discretionary judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted; 3º those who, because of a psychological nature, are unable to assume the essential obligations of marriage”.
  • 4. Error of Person (C 1097 §1)
Error of person, that is, error regarding the identity of the person, directly concerns the substance of the act of matrimonial consent. In consenting to marriage a person consents to marry this person, not any other. So if A consents to marry B and, by some means or other, C is substituted for B without A’s knowledge, there is no marriage.
  • 5. Error of Quality of the Person (C 1097 §2)
Error about a quality of a person invalidates consent only if that quality was directly and principally intended. Thus, when a woman marries a man whom she erroneously believes to be a physician, her error does not invalidate her consent unless the quality of ‘being a physician’ was so important to her that she intended the quality more than the person of her spouse and, if the quality was not present, she did not want the marriage.
  • 6. Deceit (C 1098)
When one spouse has been deprived of knowledge of an important quality of the other by deceit, what is given and accepted in consent is incomplete or truncated. Thus, the material object of consent is defective. The following are the essential elements in the case of deceit: 1) deceit must be employed to secure the other party’s consent to marriage, 2) the deceit must bear on a quality of the person ‘which by its very nature can gravely disturb the partnership of conjugal life’, 3) the quality must be present (or absent) at the time of consent, 4) the deceived person must be unaware that the quality that is the object of the deceit is (or is not) present in the other person.
  • 6. Deceit (C 1098)
If one or both parties by a positive act of will exclude marriage itself or any essential element of marriage or any essential property, such party contracts marriage invalidly. Total simulation occurs where a person goes through a form of marriage but, at the same time, intends to take on none of the obligations involved in marriage; such a person goes through the external form of marriage for some purpose extraneous to marriage, for example, a marriage of convenience for the sole purpose of obtaining citizenship in a country when there is no real intention of ever establishing a partnership of life. Partial simulation occurs where a party excludes from the act of consent some essential element or essential property of marriage – contra bonumfidei, contra bonumsacramenti, contra bonumprolis, contra bonumconiugum.
  • 6. Deceit (C 1098)
All marriages entered into with a condition concerning the future are invalid. The recognition that consent whose validity was made dependent on some future contingency is incompatible with consent. Allowing a future condition to suspend the validity of marriage is, a corrupting yeast, that is, a device that undermines the principle of the indissolubility of the matrimonial bond and introduces into marriage a stat of uncertainty that is absolutely alien to and therefore incompatible with it.
  • 6. Deceit (C 1098)
Consent extracted by physical force is always invalid since the individual concerned is deprived of any freedom to do otherwise. Consent given under the influence of fear may be invalid if the qualifications contained in the canon are verified in the particular circumstances. In order to vitiate marital consent, the fear must be grave, it must be imposed from outside and it must be the cause of the marriage.

Conclusion

Though it requires more time to study about the sacrament of marriage and the marriage nullity cases yet we have tried our level best to give here at least a gist of what the Code speaks on marriage and marriage nullity cases and how we process a case in our tribunal.

Archdiocese Of Pondicherry - Cuddalore Marriage Tribunal Office

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