St. Paul in Ephesians 5:25-33 emphasises the Sacramental aspect of marriage. Paul compares marriage to Christ’s covenant with His Church, highlighting mutual love, submission and sacrifice.
In Matthew 19:9; and Mat. 5:32 Jesus answered the Pharisees, “and I say to you: whoever divorces his wife except for unchastity, and marries another, commits adultery”; “…and whoever marries a divorced woman commits adultery”.
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 is 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. Since two baptized persons male and female participate in the sacrifice Jesus rendered for his church the bride, in order to make her holy and then she can offer herself as a worthy sacrifice to the heavenly Father.
1.5.1 It’s the Marriage Bond sealed by God and marital love mingled with Divine love even the Church has no power to disapprove this wisdom.
1.5.2 Its grace received from the Sacrament to perfect the couple’s love, strengthen their indissolubility.
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.
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 affected 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.
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). For which proper dispensation is obligatory. Dispensation given means the Church tolerates.
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 among the non-catholic ministers. Unless the authorized witness viz. A Catholic Cleric 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 eighteenth 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. They should be aware in the Christian sense of what they are witnessing; thus it is good to avoid non-Christian witnesses.
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.
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 person’s 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.
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, paedophilia, bestiality, necrophilia, trans-vest-ism, trans-sexual-ism, etc.
– 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.
– 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”.
– 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.
– 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.
– 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 bonum fidei, contra bonum sacramenti, contra bonum prolis, contra bonum coniugum.
– 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.
– 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.
The Petrine Privilege originated in the early Christian Church, when pagans converted to Christianity. This privilege allowed the Pope to dissolve a non-sacramental marriage, facilitating the convert’s integration in to the Christian community.
This procedure may apply where both partners were unbaptized. If one party later converts and is baptized, he or she has the right to practice the faith. Nevertheless, if the unbeliever hinders the other party to practice his or her faith, then the Pauline Privilege come to his or her rescue. In 1Cor. 7:15 Paul encourages the new believer to live with the unbelieving spouse. However, if the situation becomes intolerable then in this circumstance the preservation of faith takes priority over the marriage bond, which is only a “natural bond” and therefore can be broken if it is ‘for the good of the faith’. They can either breakup or A Christian sacramental marriage dissolves the natural bond of their first marriage.
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.
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 21 and for women 18 completed).
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.
It is one 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 un-baptized people who were validly married to one another in accordance with the civil laws or customs of their own religion or 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.
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 un-baptized 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 in writing. As Disparity of cult is not a Sacrament the marriage ceremony should be held either before or after the Holy Mass and not during the Holy Mass.
There needs to be express permission from the competent authority if two baptized persons, one who belongs to the Catholic Faith while the other belongs to a Church or Ecclesial Community not in full communion with the Catholic Church want to get married in the Catholic Church. The local Ordinary is not to grant permission unless the following conditions are fulfilled:
1° the Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith and is to make a sincere promise to do all in his or her power so that all offspring are baptized and brought up in the Catholic Church;
2° the other party is to be informed at an appropriate time about the promises which the Catholic party is to make, in such a way that it is certain that he or she is truly aware of the promise and obligation of the Catholic party;
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).
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, dispensation from the impediment is 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.
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.
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.
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.
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.
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.
A Tribunal, also known as an Ecclesiastical Tribunal, is a formal institution within the Catholic Church that handles canonical cases, disputes and appeals. It is a judicial body that applies Canon law to issues involving injustices and causes. Its purpose is to resolve disputes, controversies, protect rights and justice, provide pastoral care and guidance. Its major work involves the review of failed marriages. It is the judicial arm of the Bishop, the Diocesan Tribunal cooperates in his ministry, namely, “the salvation of souls, which is the supreme law of the Church; i.e., Justice tempered with Mercy” (canon 1752).
| Assists the Diocesan Bishop: | The Judicial Vicar assists the bishop in exercising judicial power |
|---|---|
| Tribunal Chief Judge: | Presides over the diocesan tribunal, ensuring its proper functioning |
| As Judge: | Decides cases, either alone or as part of a collegiate tribunal |
| Assign Individual cases | To individual Judges by rotation to hear and process individual cases |
| Instructor: | Conducts preliminary investigations and gathers evidence |
| Consulter: | Provides expert advice to the bishop and tribunal officials. |
The Judicial Vicar heads the Tribunal of the Diocese, which is charged with the administration of justice. Although most of the cases brought before the tribunal involve challenges to the canonical validity of the marriage, the church court also acts as the competent forum for other issues, including penal matters as per Book VI.
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 12 to 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.
According to the new revised legislation the tribunal of any place can take up the cause. There is no jurisdiction limits. If a spouse from Pondicherry marries the other from say Vellore the jurisdiction is applicable to the Pondicherry Tribunal or the Vellore Tribunal. However the other side judicial Vicar has to be informed that the nullity case is registered first here in Pondicherry, to avoid duplication.
This means a ground is chosen under its circumstances, the pros and cons of both the parties along with the testimony of their witnesses will be analyzed and proceeds to the next process.
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 12 to 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.
The New Tribunal Law and Procedures Pertaining to the Marriage Nullity Cases.
September 8, 2015, marked history of the Church with promulgation of the new procedural norms and the new law pertaining to marriage nullity cases handled by the diocesan tribunals. Pope Francis issued that day two documents describing these changes: Mitis Iudex Dominus Iesus [MI] (Lord Jesus the Gentle Judge) for the Latin Church and Mitis et Misericors Iesus (Gentle and Merciful Jesus) for the Catholic Churches of Eastern Rites. Though the changes introduced only 14 new articles on procedural rules, and 20 new canons (1671-1691) out of 1752 total canons in the 1983 Code of Canon Law, they significantly alter current Tribunal operations.
Now we are coming to a complete new process introduced to canon law by Pope Francis: the shorter process of nullity case in the Tribunal. The new process envisions that AFTER the case was accepted by Tribunal the grounds and proofs are so clear that within next 30 days the bishop may decide on it. His decision would become an executable sentence after additional appeal period of 15 days.
(1) The first condition to qualify for this process is an agreement (positive, not presumed) of BOTH parties to request nullity process (c. 1683 MI). Without such an agreement case cannot be admitted to the shorter process.
(2) In addition, the couple has to use an advocate or parish priest to help them with gathering evidence that needs to be submitted with their application for nullity process (c. 1684 MI). That means that some nullity grounds might be suspected by the advocate who will help the couple to gather proper documents, witnesses, medical records, etc., prior to petition.
(3) Judicial Vicar reviews every case that comes to the Tribunal (c. 1676 MI) and if he sees proper evidence, he accepts the case, directs it to the ordinary or the shorter process, and notifies the Defender of the Bond giving him/her 15 days to express his or her views on the petition. After these 15 days, the Judicial Vicar formulates the grounds for the nullity case (c. 1685 MI) and the famous 30-day clock starts!
To summarize the shorter process, if all evidence is present and submitted at the time of petition, and if there is no appeal or other special circumstances, the shorter process takes about 90 days from submission of the case to the end of the appeal time. Again, to qualify for such process both parties: the Petitioner and the Respondent have to agree to it explicitly. Grounds have to be clearly supported by the evidence. If even one of these conditions is not fulfilled, the case will be automatically directed to the ordinary process.
The documentary process for marriage nullity, as outlined in Mitis Iudex Dominus Iesus (MIDI), involves the following steps: Can. 1504-1512.
1. Couple submits petition to diocesan tribunal. 2. Includes personal and marriage details. 3. Specifies grounds for nullity.
1. Baptismal certificates (Catholic parties). 2. Marriage certificate. 3. Civil Divorce decree. 4. Birth certificates (children, if applicable). 5. Witness statements.
1. Tribunal assesses validity of petition. 2. Reviews documents. 3. Conducts initial interviews.
1. Bishop or judicial vicar gathers evidence. 2. Interviews witnesses. 3. Collects additional documents.
1. Bishop or single judge declares nullity. 2. Includes reasons for decision.
1. Optional appeal to metropolitan tribunal. 2. Review of decision.
1. Final decision on nullity. 2. Communicated to parties.
1. Initial petition: 1-3 months. 2. Preliminary investigation: 2-4 months. 3. Instruction: 3-6 months. 4. Decree of nullity: 1-2 months. 5. Appeal (optional): 2-4 months.
1. Seek professional guidance. 2. Gather required documents. 3. Be prepared for interviews. 4. Cooperate with tribunal.
1. Judicial Vicar: Oversees process. 2. Defender of the Bond: Protects marriage validity. 3. Promoter of Justice: Ensures fairness.
The Judicial Vicar, Ecclesiastical Matrimonial Tribunal, Archbishop’s House, #206, Cathedral Street, Puducherry – 605 001 INDIA.
Holiday
we are dedicated to fostering a loving and inclusive community rooted in the teachings of Jesus Christ.
© 2024 pondicherryarchdiocese.org, All rights reserved.
Sign up to our newsletter