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Canon Law for Today

By Rev. Frank Morrisey

Rev. Frank Morrisey

What are some of the reasons why a person could obtain a declaration of nullity of marriage in the church?

There are three general reasons why a marriage can be declared null by a church tribunal. The first concerns the existence of an impediment from which no dispensation had been obtained prior to the wedding. The second relates to the absence of the formalities required for the celebration of a marriage, as, for instance, when a person marries “outside the church.” The third and most common reason is a defect of consent on one or both of the parties.

The procedures to be used in these instances will vary according to the type of case being studied. In the case of an impediment (such as marrying one’s first cousin without a dispensation), it suffices to have proof of the facts. When the canonical formalities were lacking, a very simple procedure can be used and the matter resolved directly. But, when it comes to cases of defect of consent, the procedures are more detailed because, in most instances, we are dealing with internal matters and not simply with facts that can be readily verified.

Cases of defect of consent are usually divided into three categories: lack of psychological capacity, lack of knowledge, and lack of will.

Those cases relating to psychological issues are, in turn, also divided into three sections: 1) lack of the use of reason — either permanent or temporary (as in the case of a person who is high on drugs at the time of the wedding); 2) lack of discretion of judgment; and these issues usually relate to immaturity, lack of internal freedom, and lack of understanding of the commitment to be made; 3) The third category relates to those who, because of a psychological cause, are unable to assume the essential obligations of marriage (say, for instance, a person who is totally homosexually inclined, but entered into marriage solely for purposes of public appearance). In almost all of these cases, the intervention of a psychiatrist or a psychologist is required.

Cases relating to lack of knowledge are much rarer. They concern ignorance of the nature of marriage, error, and fraud. An error could, hypothetically, occur if one party had never met the other before the wedding — as could occur in cases of arranged marriages that we find in some countries. There could also be an error in the situation of a woman who married a man because she said she was pregnant by him but, when the baby is born, it is obviously of another race and the husband could not have been the father.

Cases of fraud lead to error but, in such instances, there is a specific action taken to deceive the other partner. Such cases could concern an alleged pregnancy, absence of HIV infection, lack of freedom to marry, and so forth.

The third type of lack of consent cases concerns a lack of will. Thus we have cases of total simulation, where a party goes through a wedding ceremony for some other purpose, such as to receive resident status in a country or to be eligible for educational loans. Simulation can also be partial (excluding one of the essential elements or properties of marriage). In this case, a person could exclude permanence (such as in the case of a trial marriage) or openness to children; likewise, fidelity could be excluded.

A newer ground recognized by the courts in recent years concerns the exclusion of the good of the other party. We sometimes find this in instances where the parties are from different cultures and the expectations of the husband in relation to his wife are not those of the wife, who expects equality in the marriage. There could also be cases of conditional consent, but these are extremely rare in Canada.

The final case would be force and fear, where a person feels that the only way to escape from an intolerable situation is to go through the marriage ceremony.

The marriage courts base their findings on the state of mind of the person at the time that consent was given, not on facts that arise some 20 years later. Of course, the medical experts can help the tribunal understand that certain situations were latent at the time of the wedding, but hadn’t yet manifested themselves. Nevertheless, they were there and exerted their influence, even if the party was unaware of the fact.

The understanding of the grounds can vary with new medical discoveries. For instance, it is only in the past 50 years or so that the psychological grounds listed above were recognized as valid grounds of nullity.

There are also a few instances where a marriage can be dissolved by the pope, as in cases of non-consummation, or of a non-sacramental marriage, but these are quite technical in their nature and call for careful consideration.

The tribunal ministry is, obviously, very delicate, since it deals with internal matters, which are not readily visible to others. It sometimes takes time for a party to come to the realization of the fact that something was radically wrong with the union itself. The tribunal process can be very liberating in such instances.

Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 26th article in a series.