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A General Introduction
to the Church Law on Marriage
A. N. Dacanay, S.J.

The matter to be considered here is marriage from the point of view of the
law of the Catholic Church; and this law is, in turn, the concrete application of the theology of
marriage such as we had developed in class. The discipline of the sacrament of marriage is governed
by the provisions of the Code of Canon Law [C.1055-1165]. We do not intend to enter into the civil
legislation on marriage contained in the Family Code except to underscore the law of the Church that
the marriage of Catholics, even if only one part is Catholic, is governed not only by divine law but also
by canon law, without prejudice to the competence of the government in respect of the merely civil
effects of marriage.

This belief and, necessarily, general introduction to the somewhat involved matrimonial law of the
church is envisioned to cover four general areas which would be of interest to a non-specialized
readership: [a] basic concepts and notions in the ecclesiastical law on marriage; [b] annulment and
divorce; [c] dissolution of an existing matrimonial bond; [d] various kinds of marriages.

1. Introductory Concepts and General Norms. Under this title, the following questions will be
dealt with: the canonical definition of marriage; consent, the efficient cause of marriage, and its
constitutive elements; the distinction between a marriage that is merely natural and one that is
sacramental; the meaning of indissolubility and the various degrees thereof; the consummation of
marriage; the fundamental distinction that must be made between the declaration of nullity of a
marriage and the dissolution of an existing bond.

1.1 Marriage is defined by the Code as a covenant by which a man and a woman establish between
themselves a partnership of their whole life and which, by its very nature, is ordered to the well
being of the spouses and to the procreation and the upbringing of children.

1.1.1 The understanding of marriage in the new Code moves away from an excessively juridical
model such as was present in the Code of 1917 which saw marriage in an exaggerated manner as a
contract by which a man and a woman exchanged between themselves the right to each other’s body
for those acts which are in themselves proper for the procreation of children [jus in corpus]. The new
Code proceeds from a more personalist perspective, developing as it does, marriage as an intimate
partnership of the whole life [consortium totius vitae].

1.1.2 Further, the present law of the Church refrains, as the council fathers at Vatican II deliberately
refrained, from hierarchically ordering the finalities of marriage [procreative and unitive]. Pre
Vatican II theologians have been explicit, if not actually excessive, in their affirmation that the two
finalities of marriage, namely the procreative and unitive, are hierarchically ordered as primary and
secondary, respectively.

1.2 C.1057.1 determines that the reality of marriage, understood as a partnership of the whole life, is
brought into being and constituted by the irrevocable consent of the parties who are capable
according to the determinations of law, a consent which must further be lawfully manifested.
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According to Catholic doctrine, it is this lawfully manifested consent which is the efficient cause
constitutive of marriage according to natural law. Unless this consent is present, and this consent
cannot be supplied by any other human power except the parties themselves, marriage cannot be
established.

This consent is defined by the Code as an act of the will by which a man and a woman by an
irrevocable covenant give and accept one another for the purpose of establishing marriage. Strictly,
it is an act of the will not some outburst of emotion and feeling. The parties are identified as man and
woman. In the jurisprudence of the Church, this is understood anatomically and physiologically, not
in an emotional or functional or affective sense, thereby excluding homosexual marriages. It is
irrevocable because once the consent is given, it cannot anymore be withdrawn; and once the
marriage is established, it does not anymore depend upon the continuing consent of the parties for
its existence.

1.3 Both theology and canon law make a distinction between marriage as a purely human and natural
reality and marriage as a sacramental reality. C.1055.1 adverts to this distinction. The first
paragraph defines marriage, considered as a human and natural institution prescinding from faith
and revelation, as a covenant by which a man and a woman establish between themselves a
partnership of their whole life and which, by its very nature, is ordered towards the well-being of the
spouses and to the procreation and upbringing of children. This partnership possesses the essential
properties of unity and indissolubility, even when considered merely as a human institution [C1056].
Although, as we shall argue infra, the essential property of indissolubility does not have a monolithic
and univocal meaning for it admits of degrees.

This human and natural institution is intrinsically transformed and elevated into a sacrament by our
Lord. The other sacraments are more clearly sacral. They do not exist except in the context of faith
and revelation. There is no baptism or orders or eucharist or confirmation except as realities
instituted under the new dispensation. Marriage, on the other hand, exists as a human institution,
apart from its establishment as a sacrament. It was taken over and, as it were, baptized and
integrated into the economy of salvation. It is the human reality of marriage that becomes the
sacrament. This affirmation implies two important consequences.

1.3.1 A valid contract cannot exist between baptized persons without its being, by that very fact, also
a sacrament. In other words, if the contracting parties are baptized, the only kind of marriage that
they can contract is a sacramental marriage. Even if they are lapsed Christians and they have
stopped practicing their faith and they do not anymore believe in the sacramentality of the marriage,
but if they are baptized, then their marriage is sacramental. This is one of the most controverted
matters in the Code.

The doctrinal supposition of this thesis is that the sacramentality of marriage [a ratum marriage, in
canonical jargon] does not arise from the intention or will of the parties. It is not as though the will
or intention to contract marriage is one over which, as an option, is superimposed a second and a
specific will, logically distinct from the first, to contract a sacramental union. It is not the case that
there is a choice open to the baptized parties to contract or not to contract a sacramental marriage.
Neither does the sacramentality of the marriage arise from one’s state of grace, or from one’s living
faith, or personal sanctity. The fact that a person does not practice his faith anymore, or has become
an agnostic or an atheist or born-again – these facts are not relevant in determining whether or not
the marriage that he contracts is sacramental, from a strictly juridical point of view.

According to the constant tradition of the Church, the basis of the sacramentality of marriage is not
any of those factors mentioned supra but the sacrament of baptism. By virtue of the ontological
change effected in man, the sacramental character in theological language, this foundational
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consecration of a person to God, the whole man and his entire life and all his activities are now
irrevocably and decisively taken up into the economy of salvation, and so is his marriage. Therefore,
since the basis of the sacramentality of marriage is baptism, a person’s foundational consecration to
God, then the Catholic Church asserts that the marriages of non-Catholic Christians, if they are validly
baptized and provided their marriage is naturally valid, is also sacramental. This, notwithstanding
the fact that they, as a church or ecclesial community, may not believe in the sacramentality of
marriage. Further, if two nonbaptized persons marry and they subsequently receive the sacrament
of baptism, this marriage, contracted when the parties were still nonbaptized, is considered by the
Catholic Church to have become sacramental ipso facto by the baptism of the parties,
notwithstanding the fact that the parties may have separated before their conversion to Christian
faith. Of course, the Church is not in a position to enforce this teaching until one or the other would
wish to marry a Catholic. In this case, the Church will say that the second marriage being
contemplated cannot be contracted not only because of an existing marriage bond, but one that has
become sacramental in the meantime.

1.3.2 A second important consequence of marriage being assumed into the economy of salvation is
expressed in C.1056. The essential properties of marriage are unity and indissolubility, and in a
Christian marriage, they acquire a distinctive firmness by reason of the sacrament. In other words,
all marriages, whether merely natural or sacramental [or ratum, in the language of the law], enjoy
some degree of stability. This is understood by the Church to mean that the couples themselves
cannot, on their own initiative in virtue of their own authority decide to terminate their marriage or
dissolve the bond that was created upon the exchange of their consent. Merely natural marriages,
while they are stable, are not indissoluble because, as a matter of fact, they can be dissolved. On the
other hand, sacramental marriages, by virtue of their being assumed into the economy of salvation,
enjoy a higher degree of stability. Such marriages are more difficult to dissolve. And when such
marriages have become consummated, they become absolutely indissoluble such that only the death
of one or the other can dissolve the bond.

This would be a good opportunity to make the observation that the term “sacramental” is used
slightly differently by theology and by canon law. Mackin uses the term to mean that it is an act of the
Church, that it is salvific, and revelatory. Canon law uses the term sacramental to mean stable and
more difficult to dissolve. In the words of C.1056, the essential properties of marriage are unity and
indissolubility which in Christian marriage obtain a special firmness in virtue of the sacrament.

1.4 From the foregoing, it is possible to extrapolate that there are different degrees of stability,
corresponding more or less to the different kinds of marriages.

(a) The first degree of stability is enjoyed by all marriages. For one thing, the spouses themselves,
after they have established the marriage partnership through the exchange of irrevocable consent,
cannot anymore dissolve that bond they have created. The bond achieves an independent existence,
as it were, and it is not sustained by the continuing consent of the parties. But such a bond is not
absolutely indissoluble because they can be dissolved through certain mechanisms, as we shall
explain infra.

(b) The second degree of indissolubility is enjoyed by sacramental marriages which are not yet
consummated. In the language of C.1056, the essential properties of indissolubility acquire a
distinctive firmness by reason of the sacrament. By virtue of the fact that the union of the two
spouses has now become a sign, if an imperfect one as we shall say, such a marriage becomes more
difficult to dissolve. The spouses themselves certainly cannot dissolve the bond they have created,
but the Church can dissolve such a bond before the union is consummated, albeit only under very
stringent conditions.
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(c) The third degree is absolute indissolubility which belongs to a sacramental marriage which has
been consummated. Such a marriage cannot be dissolved by any human power and that only the
death of one or the other spouse can dissolve such a bond, created by the exchange of consent,
ratified and confirmed by the baptism of the parties, and rendered absolutely indissoluble by the fact
that it has been consummated. The consummation of the marriage is understood by canonical
tradition and jurisprudence to render the marriage the perfect and complete sign of the indissoluble
union of Christ with the Church. This degree of indissolubility is proper to a sacramental marriage [a
valid marriage between two baptized parties] that has been consummated.

For this reason, it is absolutely essential, at least from the point of view of the law, to determine that
such a consummation has taken place and when, because after such time of consummation, the
marriage has become a complete sign of the indissoluble union between Christ and the Church. The
theological argument of Albert the Great: because the significatum [meaning] is indissoluble, so the
signum [sign].

1.5 Consummation and its Effects. Three things are to be treated and explained under this heading:
the meaning of consummation: when is marriage said to be consummated in the juridical sense; and
the effects of consummation.

1.5.1 The canonical consummation of marriage is the completed sexual intercourse between husband
and wife, as qualified by these three formal elements: theological, psychological, and physiological. It
is not enough that the parties have performed between themselves a completed act of sexual
intercourse to consummate the marriage and therefore produced the juridical effects attributed to
the act. Canonical doctrine further requires other elements.

1.5.1.1 Consummation is a technical term in canon law, and it has the sense of consummating, not just
any marriage, but only a sacramental marriage. The theological element then is the valid baptism of
the parties. Unless both parties are baptized, the marriage cannot be said to have been consummated
in this strict juridical sense. If only one party is baptized, the marriage cannot be said to be
consummated and the juridical effects attributed to the act can not be considered to have arisen,
even if the material element of intercourse has in fact been posited. If a couple, married as non-
baptized, receive baptism after they separate, the law of the Church would say that they are still
married to each other, as we mentioned supra. But this marriage is not yet consummated since they,
as baptized persons, have not performed between themselves a completed sexual intercourse.
Although already separated when they converted, their marriage is valid and has become
sacramental upon their baptism, although not yet consummated. Such a marriage may therefore be
dissolved.

1.5.1.2 The juridical consummation of a marriage does not only require the external fact of a natural
copula completed between husband and wife, for other conditions are required. First, the marital act
must be done in a human manner. It must be done with full awareness and advertence, complete
knowledge and free will, considering the seriousness of the juridical effects to which it gives rise. If
the spouses were drunk, or half-conscious, or were high on drugs, their actions cannot be considered
to be distinctly human. Second, it must be done without physical force or violence, for in such a case,
it would not be a human act in the case of the subdued party. While the external act of copula may
have been posited it cannot be a real human act which consummates the marriage and which would
give rise to the grave and permanent juridical effects attributed to it. Third, the marital act must be
done in a marital spirit. To consummate the marriage, it seems necessary that the consent to the act
must be directed not only to the sexual act simply but to the sexual act as marital. If woman
approaches the man, not aware that he is her husband [in the manner of True Lies, for example], the
act would not be considered to have consummated the marriage. While the act of sexual intercourse
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may have been posited materially and externally, it is not formally the act which consummates the
marriage. Such an act can not be considered to have given rise to the juridical affects attributed to it.

1.5.1.3 Physiological Elements. Regarding the physical act itself, the accumulated experience of
ecclesiastical tribunals and jurisprudence have given rise to the following considerations. Of the
male, three things are required: sustained erection, penetration, and ejaculation inside the vagina.
The requirement that erection be sustained is intended to exclude premature ejaculation, in which
hypothesis, penetration would not be possible as the penis would already be detumescent before
penetration could be achieved. Penetration, at least partial, is required. Copula appositiva, where the
sexual organs border on or flank each other in heavy petting but without penetration, would not
consummate the marriage. The third requirement would exclude onanistic intercourse or coitus
interruptus, similarly, when the male suffers from the pathological condition of hypospadia
[malformation of the male sexual organ in which the opening of the urethra is along the underside,
especially if that opening is very near the base], for in this case, ejaculation inside the vagina would
not be possible. Marriages may be dispensed and have been, as a matter of fact, dispensed as non-
consummated even in cases where they may have been conception because of copula appositiva or
coitus interruptus through absorption of the semen. In other words, therefore, there is no necessary
and intrinsic connection between conception and consummation. There could be conception without
the consummation in the juridical sense. It may be observed, and correctly so, that the matter is
considered exclusively from the point of view of the male spouse. Nothing else is required of the
female spouse other than the minimal ability to receive the male member.

1.5.2 When is marriage considered to have been consummated and, therefore, absolutely
indissoluble. The doctrine of the Church is that marriage is considered to have been juridically
consummated by the first completed act of sexual intercourse with the requisite elements as
described supra. But there is a popular and a contrary opinion today which holds that the
consummation of marriage should not be considered simply and exclusively from the point of view of
physical consummation, even when all the abovementioned requisite elements have been verified to
be present. This novel opinion proposes that, considering the serious and far-reaching effects
attributed to it, consummation should be integral and comprehensive, avoiding the limited and
overly biological perspective of a single physical act. The traditional notion is found to be inadequate
because it does not pay sufficient attention to the psychological and existential values. Perhaps, the
matter can be clarified by making a distinction between existential consummation on the one hand
and juridical consummation on the other.

1.5.2.1 As a community of life and love, as a lifelong partnership [consortium totius vitae], conjugal
love and marriage is consummated gradually and progressively by the acts proper to marriage. In
this existential dimension, marriage is never consummated perfectly. It is an on-going and an
unending process.

1.5.2.2 From the juridical point of view, the concern is that there must be a point, clear and well-
defined, in which the process of the constitution of the marriage is considered to have been
completed. There must be a point, defined and unambiguous when marriage with all its juridical
effects is considered to have been fully constituted. Marriage, understood from the model of contract
and covenant where there is an exchange of consent, implies a two-step process: consenting and
delivering the goods. The juridical concern is: when precisely are the covenanting parties
considered to have delivered the goods, when are they considered to have fulfilled a certain
minimum requirement imposed on them by their consent. This point must be well illuminated so
that it is clear when the contract has been fulfilled, at least minimally.

1.5.3 The effects of consummation may be described theologically and juridically. In theological
terms, the consummated marriage is understood to have become the complete and integral sign of
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the indissoluble union between Christ and the Church. Traditional Catholic theology understands all
marriages to be potential signs of this sacred union. A sacramental marriage which has not yet been
consummated, while it has become an actual sign and not just one potentially capable of signifying
the indissoluble union, is not yet a full and integral sign until it is consummated. Only a consummated
union is a sign in a full sense. From this theological argument arises the juridical implication. The
fact that a consummated union has become a full sign of the sacred reality is translated into a
juridical norm: such a marriage cannot anymore be dissolved. This juridical norm is based on and
arises from the theological datum that the consummated union is a full and integral sign of the
indissoluble union between Christ and the Church.

1.6 Various concepts must also be clarified: declaration of nullity [popularly but inaccurately called
annulment], divorce, dissolution of the bond, invalid marriage and a non-existing marriage.

(a) Declaration of nullity. This means that there was an external celebration of marriage, but the
validity of that marriage is being challenged. The declaration will say that even if there was an
external form of marriage, the substance of marriage was not really there. For example, a
transvestite was substituted for the bride. Even if there was the form of marriage, there was really
no marriage from the very beginning. The act of an ecclesiastical court is merely declaratory and
descriptive: there was no marriage from the beginning. It is not as though there was a marriage and
that marriage is being invalidated in virtue of the decision of a church court.

(b) Divorce or Dissolution of the bond. As distinct from the declaration of nullity, divorce or
dissolution of the bond presupposes that there is a bond; the assumption is that there is a valid
marriage. The effect however of the action of the court is to bring that existing bond to an end. From
the point of view of usage, divorce is a term applied to the action of a civil court while dissolution, of
the bond is a term applied to the act of the Church. As we shall explain infra, there are three
mechanisms in the Church to dissolve an existing marriage bond: Pauline privilege, the privilege of
the faith, and the dissolution of a non-consummated marriage.

(c) Invalid and Non-Existent Marriages. An invalid marriage is one which was celebrated in some
kind of a public ceremony and the formal solemnities required for marriage must have been
observed; there is an appearance of marriage. Public ceremony does not mean known by many; it
means it can be proven if necessary. In the concrete, the law of the Church requires that there should
be at least five people present: the bride and the groom, the duly authorized minister of the church
and two witnesses. An inexistent marriage, on the other hand, means that there was no public
celebration. There was no appearance or external form of marriage. If two persons are just
cohabiting, without the benefit of any formal ceremony, that would be an inexistent marriage.
Strictly speaking, the civil form of marriage should be an adequately public form within which
consent could be manifested. However, by positive disposition of church law, the civil form is not
only a defective form in which the consent of parties may be manifested, it is not a form at all for
persons who are bound to observe the laws of the Church.

Finally, a practical consequence of the distinction between an invalid marriage and an inexistent
marriage would be this. A judicial process is required to declare a marriage null and invalid; but you
do not need a formal judicial process to declare that a marriage is inexistent.

Related to the concepts of invalid and an inexistent marriage, something must also be said about an
invalid and an illicit marriage, depending on the law that was violated. Some laws are merely
proscriptive, others are invalidating. C.1124 forbidding the marriage between a Catholic and a non-
Catholic Christian is proscriptive; if a Catholic marries a Methodist for example, the marriage is illicit
because it violated C.1124 but it is a valid marriage. On the other hand, C.1086 forbidding the
marriage of a Catholic and a non-baptized is invalidating; invalidating law goes one step further and
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determines that if such a law is violated, the act posited would not give rise to the juridical effects
attributed to it by law. If a Catholic were to marry a Muslim for example, the marriage would be
invalid.

To say that a marriage is illicit is to say that the marriage “exists” and the bond is created giving rise
to the juridical effects that arise therefrom, notwithstanding the fact that it was contracted in
violation of a law. The husband for example cannot contract another marriage because he is already
bound by this marriage. To say that a marriage is invalid is to say that the “giving of the consent” does
not produce the juridical effects attributed to it by law. If the marriage is invalid, theoretically, either
or both of the spouses could still enter into another union; if they remain in this invalid union, they
would be committing fornication and they would therefore be living in sin.

1.7 Some General Principles. (a) Marriage is a natural right; therefore the church recognizes the
validity of marriages contracted outside of the Catholic Church by non-Catholics. Divorce, however, is
not a natural right and therefore the Church does not recognize dissolutions and annulments except
those that she herself grants. The marriage between two Protestants in a protestant or a civil
ceremony is recognized to be valid by the Church. If an Aglipayan married civilly, having obtained a
civil annulment, attempts to marry a Catholic in a Catholic ceremony, the Church would refuse. The
argument would be that the validity of his first marriage is recognized by the Church, but not the civil
annulment.

(b) Canonical doctrine makes a distinction between a law that is merely ecclesiastical and one that is
of divine origin. Two important consequences follow from this distinction. Merely ecclesiastical laws
apply only to Catholics and they can be dispensed. Divine law applies to everyone and it cannot be
dispensed. The obligation to observe canonical form [marriage in a Catholic ceremony] is an
ecclesiastical law. This is the reason why a civil marriage of a Catholic is invalid, although valid for
non Catholics.

(c) We have made reference above to laws that are invalidating and laws that are merely
proscriptive. The general principle is that a law is invalidating only if it explicitly asserts to be
invalidating; otherwise the law is merely proscriptive.

2. Declaration of Nullity by a Church Tribunal. There are three general grounds on which the
validity of a marriage may be challenged: the consent was given by persons who are not legally
capable [because of the presence of an impediment]; the consent is defective or completely lacking;
the consent was not manifested in a legitimate manner.

2.1 The marriage is invalid if it is contracted by a person who is not legally capable of giving consent
because he is bound by an impediment. An impediment is a condition defined by law to which the
law attributes an invalidating effect. The result of the presence of an impediment on the part of
either or both parties is that the consent originating from such an afflicted person does not produce
the marriage bond that it is supposed to produce. The consent of an undispensed priest, for example,
does not produce the bond that it is supposed to produce because of the impediment of celibacy
attached to orders. There are 12 such impediments that affect the legal capacity of persons to give
consent, and they may be grouped thus: [a] impediments arising from personal capacity to give
consent; [b] impediments arising from crime; [c] impediments arising from relationships.

2.1.1 There are six impediments arising from personal capacity to give consent.

AGE. A man cannot validly give consent before the completion of his 16 th year, nor the woman before
th
the completion of her 14 year. The marriage contracted while either or both of the parties are
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laboring from this impediment does not become automatically validated when the spouses complete
the required age. There must be a new act of consent from the parties in order to validate the
invalidly contracted marriage.

IMPOTENCE. This is a technical term in canon law and it means the inability to consummate the
marriage, and consummation requires: sustained erection, penetration, and ejaculation inside the
vagina. This impediment must be distinguished from sterility which is the inability to procreate, or
even from the common and popular meaning of impotence which is the inability to have or to sustain
an erection.

PREVIOUS BOND. This impediment arises from any validly contracted marriage, whether
sacramental or merely natural. Consequently, even a civilly contracted marriage by those who are
not bound to observe the canonical form would give rise to this impediment. The civilly contracted
marriage between two Protestants is not only valid but is also sacramental. If these two people
obtain a civil divorce and one of them would like to marry a Catholic, the Church will not allow the
second marriage because of the existing prior bond. The Church does not recognize any declaration
of nullity or dissolution of a marriage bond other than those she herself grants.

SACRAMENT OF ORDERS. As an impediment, it arises from a valid ordination. Thus, a deacon, or a

priest, or a bishop, cannot validly marry because of the obligation of celibacy, undertaken through a
vow, which is connected with the sacrament of orders. The impediment affects all those who have
received orders. A married man who is ordained a deacon cannot remarry if he becomes a widower,
or if the marriage is declared null, or if the marriage has been dissolved. Likewise, a pries who may
have been dismissed from the clerical state as a penalty cannot contract a valid marriage unless and
until he is dispensed from the impediment.

PUBLIC PERPETUAL VOW OF CHASTITY. This is the vow made in a religious congregation or
institute [Society of Jesus, Religious of the Assumption, Society of Don Bosco] and it is called public in
the sense that it is official because the vow is formally accepted in the name of the Church. It is
perpetual to distinguish it from the temporary vows [renewed every three years] which are made in
religious congregations before members make the perpetual commitment.

DISPARITY OF CULT. This impediment exists between a Catholic and a non-baptized person. This
would mean that a Catholic cannot marry a Muslim or a Buddhist. The idea behind this impediment
is that differences in religious belief could make the marriage more difficult. Baptism here does not
refer only to Catholic Baptisms but to baptisms even in non Catholic Christian churches which are
recognized and accepted by the Catholic Church. Without going into all the involved details, the
baptism of most protestant churches is accepted by the Church as valid. The two significant
exceptions to these are the baptisms of the Iglesia ni Kristo and the Mormons.

2.1.2 There are two impediments arising from a specific criminal acts related to marriage: abduction
and crime.

ABDUCTION. The juridical configuration of this impediment includes the following conditions: [a]
the woman is abducted and detained against her will [only the abduction of a woman gives rise to
this impediment]; [b] the abducting party does not have to be the man who is contemplating
marriage with the abducted party; it could be some third party; it could even be that he is unaware of
the abduction. The essential point is that the woman is considered not able to elicit a valid consent
while under detention. The impediment ceases when the woman is separated from her abductors
and established in a safe place.
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CONJUNGICIDE. There are two possible hypotheses for this impediment to arise. Person X, for the
purpose of marrying person Y, has brought about the death of Y’s spouse or his/her own either
personally or through another. Because at least one of them is bound by a prior bond, the murder is
perpetrated precisely to free one of the existing bond in order to make the marriage possible,
although the intention to marry does not have to be mutual. The person who committed the crime
contracts the impediment by the act of murder. The two elements of this impediment are: first,
responsibility for the death of the spouse; second, the intention to marry a specific person.

The other situation to give rise to the impediment of conjungicide is the conspiracy to kill one’s own
or the other’s spouse, even it there was, as yet, no intention to marry at the time of the crime, these
conspirators cannot contract marriage between themselves should they decide to marry each other
at some future time.

2.1.3 The impediments arising from relationship are four: consanguinity, affinity, public propriety,
and legal relationship.

CONSANGUINITY. The relationship of consanguinity arises from physical generation, prescinding

therefore from the validity or existence of the marriage. The impediment exists between ascendant
and descendant (the so-called direct line) in any degree and this is never dispensed. X cannot marry
his mother, grandmother great grandmother, his daughter, granddaughter, etc.

Consanguinity also exists in the collateral line, that is, between those who have descended from a
common ancestor, and it invalidates marriages contracted between persons who are related up to
and including the fourth degree collateral, although the impediments between third and fourth
degree collateral relatives can be dispensed.

AFFINITY. This relationship arises from a valid marriage and it exists between the husband and the
blood relatives of the wife, and between the wife and the blood relatives of the husband. It does not
however exist between the blood relatives of the husband and the blood relatives of the wife.

The impediment of affinity exists between a husband and those related by consanguinity in the direct
line in any degree to the wife, and vice versa. The impediment of affinity does not exist in the
collateral line. A man whose wife died cannot marry his deceased wife’s mother, or grandmother, her
daughter [obviously from a previous union], or that daughter’s daughter, although he can marry his
deceased wife’s sister. The older law of the Church has forbidden even this latter collateral. For this
reason, Henry VIII had to get a dispensation to marry Catherine of Aragon, the widow of his older
brother, Arthur. When Catherine of Aragon could not give him the heir he desired and endeavored to
enter a second marriage, he would later claim that the dispensation was invalid.

PUBLIC PROPRIETY. An invalid marriage, or an inexistent one, or even a notorious act of

concubinage establishes some kind of a family relationship somewhat similar to relationships of
affinity, even if there was no marriage, giving rise to an obstacle to marriage, out of a sense of
decency or public propriety. While affinity arises out of a valid marriage, a somewhat similar
relationship arises between the one party and the close blood relatives of the other, even if the union
was merely concubinage or cohabitation.

The impediment arises only after common life has been established. It exists only in the first degree
of the direct line. If Joseph has been cohabiting with Julia and Julia dies, Joseph cannot marry the
mother of Julia nor the daughter of Julia [obviously by a different father], but he can marry her
grandmother or her granddaughter.
196 | A d o l f o D a c a n a y , S . J .

LEGAL RELATIONSHIP. This arises from the act of legal adoption by which a person receives as
his/her own child one who is not so by nature. The relationship, and therefore the relationship
based on it, arises from the adoption according to the civil laws of the land and not just the de facto
living with the family. The impediment exists in the direct line in any degree [the adopted daughter
cannot marry her adoptive father, his father, his grandfather, etc.], and in the collateral line in the
second degree [the adopted daughter cannot marry any of the sons of her adoptive parent, nor any of
the other adopted children].

2.2 The second possible ground on which the validity of a marriage may be challenged is on the
ground that the consent given was defective. The matrimonial consent required for the
establishment of a marriage is understood to have three constitutive elements: [a] intellectual or
cognitive; [b] the volitive and the freedom; and [c] the psychosomatic.

2.2.1 The cognitive element of consent finds its justification in the fact that while consent is an act of
the will, it is a consent that is based on and informed by knowledge. A person gives his consent on
the basis of his understanding. In some cases specified by law, the consent may be invalid if it is
based on erroneous knowledge; while some errors are invalidating, not all errors invalidate the
consent. Error is invalidating in the following instances.

Error about the identity of the person is invalidating. If a person is intending to marry Liza and her
twin was substituted for her, then the marriage is invalid. This situation may seem ridiculous now
but it was not always so, especially in arranged marriages.

Error about the quality of a person is not invalidating unless those qualities were directly intended.
A girl marries her boyfriend who she thinks is a doctor but is actually a medical representative. In
this case, the boyfriend is directly intended, not the quality. Therefore, the error is not invalidating.
A boy wants to marry a virgin and thinks that Romina is a virgin. In this case, the direct object of his
consent is virginity and he thinks that this quality inheres in Romina. If Romina is not a virgin, then
the consent is invalid because it arises from an error about a quality that is directly intended.

The third instance of invalidating error is when a person is deliberately deceived; and the deception
is perpetrated precisely in order to obtain consent because the consent would not be given if the
truth were known; and as a result of the deliberate deception, the victim falls into error about some
quality of the prospective spouse which of its very nature can seriously disrupt the partnership of the
conjugal life. Deception about one’s ability to have children can seriously disrupt the marriage
partnership because it is assumed that persons who enter marriage do expect to have their own
family. Deception about an incurable disease would also be invalidating.

2.2.2 Not only must consent be based on truth and sufficient knowledge, it must be posited freely and
be directed towards a proper object. From this point of view, it is affirmed in a general way that the
consent is defective and therefore invalid when consent is withheld or when it is given under duress.

When consent is withheld, it is called simulation. The presumption of the law is that the internal
consent of the mind conforms to the words or signs used in the celebration of the marriage. This
means that when the bridegroom says “I do” or “Yes, father”, the presumption of the law is that the
bride/groom means yes or that he does. But in some cases, there is no consent. When a person
enters marriage only and exclusively to avoid being charged in court for abduction and rape, and he
has absolutely no intention of establishing the permanent consortium with her, then there is no real
consent. The man merely simulated his consent to get off the hook.

Simulation of consent could also take other forms. When a person reserves to himself, for example,
the right to obtain a divorce if the marriage does not work out; if one or the other party reserves to
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himself/herself the right to have sexual relations with persons other than the proper spouse—in
these cases, the consent given at the time of marriage was a consent not to marriage but to some
other kind of relationship.

Consent is also invalid when it is given under force or duress [vis et metus in the legal jargon, pikot or
shotgun marriage]. In this hypothesis, because of the presence of force and the consequent fear that
the force induces in a person, his freedom is so diminished that consent to the marriage appears to be
the only possible way to escape the threat. In this case, however, it is presumed that the threats are
serious: imprisonment, physical harm, loss of substantial income, irreparable loss of reputation.

A special kind of consent under duress is the consent given when under pressure from parents or
superiors. This is reverential fear, the fear that arises from a relationship of subordination and the
respect due to superiors and parents which are perceived to be violated if the subordinate or
son/daughter were to disobey the wishes of the parent/ superior. In this case, the perceived threat is
not physical, the perceived threat is the displeasure on the part of the parent or superior if a
son/daughter were to refuse to marry the person they approve or recommend. While the
displeasure is not objectively grave in other circumstances, it is qualified and rendered much more
by the special relationship of respect and reverence. This could conceivably be the case in arranged
marriages or even in situation where the culture would demand that the marriage partner be
approved by elders.

2.2.3 Psychosomatic Elements. The invalidity of the consent from this point of view may be
described as the inability to elicit a morally valid and responsible act. On the other hand, an
impediment, which should not be confused with this psychological incapacity is a prohibition
established by law which makes a person’s act juridically invalid. Consent in this latter case is
psychologically defective because of the psychological affliction of the subject from which the
consent proceeded. This psychological incapacity to consent is considered by canon under three
headings: [a] lack of due reason; [b] lack of due discretion; [c] lack of due competence.

2.2.3.1 Lack of DUE REASON. A person is said to have no due reason if they do not have the full use of
their rational faculties. This may be due to a psychological disorder, or by transitory or more
permanent conditions such as toxic or hypnotic states, drunkenness, somnambulism, drug addiction,
alcoholism [not just in the sense of inebriation but in the sense of addiction or dependence],
schizophrenia, mental retardation, etc. These persons, because their rational faculties are so
impaired, are considered not have due reason and are therefore incapable of giving a valid consent.
Even during the so-called lucid intervals, these persons can not emit a valid consent because the
question here is not just the capacity to give consent but the capacity to deliver the goods, to execute
the consent.

2.2.3.2 Lack of DUE DISCRETION. In general, consent is understood to be invalidated by the lack of
due discretion if there is a serious inability to evaluate critically the decision to marry, in the light of
the consequent obligations and responsibilities. In other words, either or both parties have
consented to marry without really weighing his ability to fulfill those things that are required and
expected of him. He has not the ability to determine the seriousness of his obligations, nor the level
of his ability. This is what would be understood in ordinary language as the immature personality.
The psychological disorder is not as grave as what is implied in the lack of due reason.

Some indications of lack of due discretion: teenage marriages, especially when compounded by the
fact that the girl is pregnant, with or without parental pressure to marry; a person gets married
because that is his/her way of escaping an undesirable situation at home. There are cases when a
couple may have already cohabited for some months or even years, and they have found that they are
198 | A d o l f o D a c a n a y , S . J .

really unable to get along with each other, and there is so much discrepancy, etc., and yet they find
themselves marrying after that because they feel they have to marry.

Cause or combination of causes that give rise to this lack of due discretion: the parties are quite
young, there is some identity or personality disorder of at least a moderate degree. Some of the
extrinsic factors that may give rise to this situation: premarital pregnancy, unhappy/burdensome
circumstances in the parental home with the desire to escape it, fear—even one that is self-
generated, embarrassment.

The result of the lack of due discretion; the person is deprived as a result of what is a combination of
extrinsic pressure and intrinsic pressure. Lack of due discretion does not always involve personality
or identity disorder as some may lead us to think. Sometimes, the lack of due discretion is caused by
predominantly extrinsic causes coupled with ordinary immaturity.

2.2.2.2 Lack of DUE COMPETENCE. The consent of the person here is considered to be defective
because he is afflicted with some kind of a psychic difficulty that he could not make good what he
consented to in marriage. In other words, the consent is understood to be invalid because he cannot
deliver the goods that he agreed to deliver by virtue of the exchange of consent.

There is a real inability to commit one’s self to the essentials of marriage, or to assume the
obligations of the marriage state. Some psycho-sexual disorders and other disorders of the
personality can be the psychic cause of this inability to render what is due to the other by virtue of
the contract: fidelity, community of life and love, rendering of mutual help. The canon seems to
contemplate a true psychological disorder which incapacitates a person from fulfilling the
responsibilities that he has taken upon himself by virtue of the contract, not merely rendering the
fulfillment difficult but really impossible.

A nymphomaniac was considered incapable of fulfilling the essential marital obligation of fidelity, for
which reason, her consent is considered to be invalid [coram Sabattani 21 June 1957 in SRRD 49
(1957), 500 – 513]. In a similar manner, a marriage was declared null because the husband was
incapable, almost constitutionally as it were, of fulfilling marital obligations by reason of his
homosexuality [coram Lefebvre 2 Dec 1967 in SRRD 59 (19670, 803].

The formal object of consent to which the spouses commit themselves was understood to be more
than jus in corpus. It is the right to a community of a whole life [consortium totius vitae]. Such a right
exceeds the mere external fact of cohabitation. It requires the ability to develop a lifelong personal
relationship. The capacity for marriage thus involves the capacity for a mature interpersonal
relationship: the ability to accept each other as a distinct person, to relate to each other in a manner
specific to marriage. This capacity for marriage presupposes the development of an adult and
integrated personality.

2.3 The third possible ground on which the validity of a marriage can be challenged is the defect of
form. The canonical form of marriage are the formalities or juridical solemnities which are required
in the expression of consent, such that if the form is defective or absent altogether, the validity of the
juridical act itself is affected.

According to C. 1108, only those marriages are valid which are contracted in the presence of the local
ordinary or parish priest, or of the priest or deacon delegated by either of them, who in the presence
of two witnesses asks the contracting parties to manifest their consent and in the name of the church
accepts it. The authority of the local ordinary and that of the parish priest is understood to be
territorial. This means that they do not have the authority to officiate at marriage outside their
jurisdictions, the local ordinary out of his diocese, the pastor out of his parish. If and when priests
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who do not have this authority have to officiate at weddings, they need to be delegated or authorized
by the pastor usually. Without this delegated authority, the marriage would be null and void for
defect of form.

This obligation to observe the canonical form is merely an ecclesiastical law, and is therefore binding
only on Catholics. When a Catholic marries a non-Catholic, whether a protestant or even a non-
Christian, the Catholic party is required, for validity, to have the marriage solemnized according to
the canonical form. In case, there is difficulty, for example with the sensibilities of the non-Catholic
party, the Catholic party can asked to be dispensed from this obligation to observe the form, a
permission which is usually and easily granted because the church recognizes that marriage is a
natural right. In this case, the marriage may then be celebrated elsewhere, either before a Protestant
minister or even civilly in a case where one the parties is a non-baptized.

The marriage may be invalid for defect of form if there is only one witness, for example; or it can be
invalid because the priest who officiated at the wedding did not have the required faculty or
delegation to perform that marriage. For example, Jesuit who officiates at a wedding in della Strada
without delegation of authority from Fr. Lim, or another priest who officiates in San Agustin without
again the proper delegation. Notice therefore that not just any priest can celebrate the marriage. If
he does not have the proper delegation, he has to obtain it for the validity of the marriage.

The requirement for form is rooted in the desire of the church to protect the parties. Before the
Council of Trent, there was no such requirement. If two persons consented, marriage was considered
to have been established, and they can start living together. There was of course the inherent danger
that the person may have been married before, but the people could not know that since there was
no official celebration, or it could not be proven because there were no records.

The procedure for declaring the nullity of a marriage for defect of form is relatively simple. All that
needs to be determined is whether the priest who officiated at the wedding has this delegation, of
which reason this delegation should always be given in writing. If there is no authorization, the
tribunal by a documentary process will declare the marriage null and void for lack of form.

3. Dissolution of the Bond. We already have had occasion to say supra that what the Church
normally does is not to terminate a valid marriage but simply to declare, descriptively rather than
efficaciously, the marriage to have been null from the very beginning and that there was no marriage
really, even if there may have been the appearance of one.

We also had pointed out that there are three kinds of marriages with a level of indissolubility proper
to each. Under this rubric, the affirmation was made that only the sacramental and consummated
marriage enjoys absolute indissolubility. In other words, other categories of marriages [merely
natural, or even one that is sacramental that is not yet consummated], even when valid, can be
dissolved and have been dissolved by the Church.

A natural marriage can be dissolved by virtue of the Pauline privilege. This mechanism applies only
to natural bonds, and it is dissolved when one of the parties converts to the Christianity, and the
party that remained pagan refuses cohabitation with the converted party. When the converted party
contracts a second marriage, the first bond is dissolved ipso facto, that is, by and in the very act of
contracting the second marriage.

A sacramental marriage that has not been consummated can also be dissolved by the Roman Pontiff.
This is called the dissolution super rato in canonical jargon. In other words, there is an existing
sacramental bond, which however has not been consummated. This existing and valid sacramental
but non-consummated union can be dissolved.
200 | A d o l f o D a c a n a y , S . J .

These acts of the church of declaring the marriage null, or of dissolving an existing union either by
virtue of the Pauline privilege or of the procedure called the dissolution super rato do not however
have any civil effects. A marriage performed in the church produces two effects: the sacramental
and the civil. The priest, when he officiates at a wedding, does not act only in the name of the church.
He also acts in the name of the State, for which reason he likewise obtains a license to officiate at
marriages from the state. However, the declarations of nullity or the dissolutions of existing bonds
done by the church do not produce those same effects civilly. When the church declares a marriage
null or dissolves an existing bond, the state does not recognize those effects and therefore, in the eyes
of the state, those marriage continue to bind.

If those parties, whose marriages were declared null or have been dissolved by the Church, were to
contract second marriages [hopefully to other parties!], such marriages would only be sacramental,
and they would not be civilly valid. The first marriage is what continues to bind civilly. The second
one would be purely sacramental.

4. Special Kinds of Marriages. There are two kinds of marriages which a Catholic may contract but
which is not the usual kind: mixed marriage which is a marriage with a non-Catholic Christian;
disparity of cult marriage which is one with a non-baptized person.

4.1 Mixed Marriage. This kind of marriage, such as we described, is forbidden to Catholics and may
not be contracted without the permission of the local ordinary [i.e., the bishop]. And this local
ordinary is not to grant this permission unless these conditions are fulfilled:

i] the Catholic party must declare that he/she is prepared to remove dangers of falling away from the
faith; he/she must make a sincere promise to do everything to have all the children baptized and
brought up in the Catholic church;

ii] the other party is to be informed at an appropriate time of these promises with the Catholic party
has to make so that it is clear that the other party is aware of the obligation and promise of the
Catholic party;

iii] both parties are to be instructed of the essential ends and properties of marriage which are not to
be excluded by either party.

It was pointed out supra that a Catholic is bound to observe the canonical form of marriage even
when the other party is not Catholic. If there are serious difficulties to the observance of the
canonical form, the Catholic party may be dispensed from this obligation although there has to be
some kind of a public celebration for the validity of the marriage.

Regarding mixed marriages, it is forbidden to have another religious celebration of the same
marriage to express or renew matrimonial consent before or after the canonical celebration. It is
likewise forbidden to have one religious celebration in which a Catholic and a non-Catholic minister
assisting together but following their respective rituals, ask for the consent of the parties.

If a Catholic party were to marry a non-Catholic party in a non-Catholic ceremony without first
having obtained the proper permissions and dispensation, the marriage would be invalid, not
however because it is mixed contracted without permission, but because the canonical from he is
required to observe was not observed.

4.2 Disparity of Cult. We had already seen supra [2.1.1] that a marriage contracted between a
Catholic and a non-baptized party is an invalid marriage, by reason of the impediment. This kind of
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marriage may be allowed, and the impediments dispensed from, if the same guarantees are given and
the same conditions fulfilled as those required in a mixed marriage.

The following observations must be made. First, when a Catholic party is allowed to marry a non-
Catholic party, the non-Catholic party is being allowed to contract a non-sacramental marriage.
Technically therefore, he is contracting a marriage that is not absolutely indissoluble, it being a mere
natural marriage. The fact that it may be celebrated in a Catholic Church does not make it a
sacramental union. Second, if the marriage were to be celebrated in a non-Catholic ceremony, the
Catholic party will need two dispensations: the dispensation from the impediment of disparity of
cult, and from his obligation to observe the canonical form.

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