| Newsletter Archive |
| June 2004 July 2004 August 2004 September 2004 |
WHO NEEDS DELEGATION?
The March 2004 Newsletter discussed the Canonical Form for marriages
in which at least one of the parties is Catholic. (Canonical form is
the valid form by which Catholics marry.) That article stated that canonical
form in the Roman Catholic Church requires that:
· those baptized in the Catholic Church, and those received into the Catholic
Church after baptism, marry in the presence of the local ordinary (bishop, vicar
general, etc.) of the place in which the marriage takes place OR in the presence
of the pastor of the place in which the marriage takes place (provided that at
least one of the parties is of the latin rite) OR in the presence of a priest
or deacon properly delegated OR by another properly delegated person (See canons
1108 ff.);
· those baptized in the Catholic Church, and those received into the Catholic
Church after baptism, marry in the presence of two witnesses. (See canon 1108.)
Sometimes people are confused about who may validly assist (officiate) at marriages in which at least one of the persons is Catholic. The law is clear that the pastor of a parish, by virtue of his office, validly assists (officiates) at marriages within his territory, provided that one of the parties is Catholic and that parochial vicars and deacons assigned to a parish validly assist at such marriages within the their parish territory in virtue of their diocesan faculties.
There are certain situations, however, when a Catholic minister needs
delegation by the proper authority to validly assist at a marriage. (N.B.
Failure to observe the laws of valid assistance at marriage jeopardizes
the validity of the marriage itself!) And, since valid assistance at
marriages is territorial, the following should be kept in mind:
1. Any pastor, parochial vicar or parish deacon who assists at a marriage outside
of his own territory, even if the parties are his own parishioners, needs delegation
from the pastor of the Catholic church where the marriage is celebrated. Otherwise
the marriage would be invalid.
2. Any priest or deacon who is not assigned by the bishop to a particular parish
and who wishes to assist at a marriage, needs delegation from the pastor of
the Catholic church where the marriage is celebrated. Otherwise, the marriage
would be invalid.
3. Any pastor, parochial vicar or parish deacon, or any priest or deacon not
assigned by the bishop to a particular parish, who has received permission
to assist at the marriage of a Catholic in a non-Catholic Church or chapel,
must also obtain delegation from the pastor of the parish in whose territory
the church or chapel is located.
Although delegation for a single marriage may be granted verbally, a written statement of delegation provides proof that the delegation was properly given, should it ever be questioned. It is likewise important that the fact of the delegation be recorded in the marriage register. It should also be recorded on the Pre-Marital Investigation Form.
FOR THE FUTURE
Future Topics:
The Rights of the Respondent
Abuse
Cohabitation/Pre-marital Sex
Dispensations and Permissions
Preparation for Re-marriage
What Makes for a Healthy Marriage?
THE INTERVIEW
As a part of this process, you and your former spouse will be asked to provide testimony concerning each of you and your relationship with each other. Sometimes this process brings healing to one or both parties involved in a failed relationship. Some persons are able to learn more about themselves and their former spouse and find some healing as they address personal issues that remained unresolved in their lives. Some find healing when they pursue those unresolved issues through pastoral and/or psychological counseling. And some find healing simply because the process leads to some closure in their lives.
Sometimes, however, this process does not bring the kind of healing and resolution a person seeks in his or her life. This may be true both for the person requesting the annulment (known as the petitioner) and the former spouse (known as the respondent), especially a respondent who does not believe that the marriage is invalid, or one who was injured by the petitioner.
The process of investigating the possible invalidity
of your marriage involves looking at times in your past that may have
been hurtful and distressing. Questions
will be asked about your and your former spouse's family of origin and
developmental and teenage years. This
may surface events and psychological issues you have not thought of,
or have not wanted to think of, for many years: e.g., physical, emotional
or sexual abuse; psychological illness, drug or alcohol abuse; family
crisis. Questions will be
asked about your relationship during the dating and courtship of you
and your former spouse: e.g., strengths and weaknesses of the relationship;
intentions regarding permanence, fidelity and openness to children; reservations
or concerns about getting married. And
some questions will be asked about the married life of you and your former
spouse: e.g., the quality of your relationship; the seriousness of the
problems that led up to the separation and divorce.
If you believe that such a line of questioning will pose emotional or psychological difficulty for you, please consult with your parish pastoral minister and/or a psychological counselor before proceeding further with this process. The staff of the Rochester Tribunal seeks to provide a helping atmosphere for both petitioners and respondents. We would hope that all would find healing through this process, but we know that this is not always possible. And we wanted you to be aware of our concerns.
TOPICAL INDEX
February 2004 through January 2005
Annulment Process
February 2004 Can the Tribunal Help Me?
Children
August 2004 Legitimacy of Children of an Invalid Marriage
Competence (jurisdiction) of the Tribunal
June 2004 Which Tribunal Is Competent to Receive My Petition?
Form (Canonical) for Catholic Marriage
March 2004 Canonical Form of Marriage
How long does it take to get an annulment?
December 2004 Annulment Process: How Long Does It Take?
Interfaith Marriages
November 2004 Interfaith Weddings
New Marriages after an Annulment
July 2004 Restrictions on Future Marriages
Reasons for Declaring a Marriage Invalid
April 2004 What Makes a Marriage Invalid?
May 2004 What Makes a Marriage Invalid? – Part II
Rite of Christian Initiation for Adults (RCIA)
September 2004 RCIA Process and Annulments
October 2004 RCIA Process and Annulments - Q & A for Pastoral Ministers
Witnesses
January 2005 Witnesses in Marriage Nullity and Dissolution Cases
April 2005
DELEGATION
WHO MAY OFFICIATE AT THE MARRIAGE OF CATHOLICS?
The Catechism of the Catholic Church gives a clear statement regarding the minister of the sacrament of marriage in the Latin (Roman Catholic) Church. Paragraph 1623 states “According to the Latin tradition, the spouses as ministers of Christ’s grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church.” This is consistent with the understanding that “Marriage is brought about by the consent of the parties” (Canon 1057).
Nonetheless, because marriage is a public act, the Catholic Church requires that there be witnesses to the marriage and that one of them be an official witness of the Church who asks for the spouses’ statement of consent and receives it on behalf of the Church. This official witness is usually a bishop, priest or deacon with the power to do so.
Canon Law defines who may be the official witness at the marriages of Catholics. Although there are some exceptions described by the laws of the Catholic Church, according to Canon 1108 of the 1983 Code of Canon Law, those baptized in the Catholic Church, and those received into the Catholic Church after baptism are to marry in the presence of the local ordinary (bishop, vicar general, etc.) of the place (diocesan territory) in which the marriage takes place OR in the presence of the pastor of the place (parish territory) in which the marriage takes place (provided that at least one of the parties is of the Latin rite) OR in the presence of another priest or deacon properly delegated OR by another properly delegated person (cf. canon 1112).
The ordinary power to act as the Catholic Church’s official witness is attached to one’s office. Within the jurisdiction (boundaries) of one’s legal responsibility, a bishop, vicar general or pastor of a parish may act as the official witness of the Church. Otherwise, he would need delegation – power to act granted by the person who has the authority to do so – in order to validly officiate at a marriage. Should a bishop, priest or deacon not have the power to officiate at a marriage by virtue of his office, and fail to obtain the necessary delegation, the marriage would be considered invalid due to a defect in “canonical form”, i.e., the absence of an official witness who lacks the authority to act on behalf of the Church in that particular place.
The Catholic Church, always concerned about the pastoral needs of its members, and mindful of the right to marry of all who are capable of marriage and free to do so in accord with divine and ecclesiastical (Church) law, makes many provisions for circumstances when canonical form cannot be observed, or needs to be dispensed from. However, for the sake of this article, we are considering the usual circumstances of couples wishing to marry in the Catholic Church.
Who may officiate and where?
1. The bishop of the diocese has ordinary power to officiate (i.e.,
be the official witness) at any marriage (1) in which at least
one of the parties is baptized in the Roman Catholic Church, or
received into the Roman Catholic Church after baptism, (2) anyplace
within the geographical boundaries of his diocese. This is also
true for his vicars general. The bishop (or someone empowered by
him to grant delegations) and his vicars general may also delegate
another bishop, priest or deacon, to officiate at any marriage
within those same geographical boundaries. For example, the Bishop
of Rochester could officiate at a marriage at St. Mary’s
Church, Elmira, NY by virtue of his office. That church is within
the geographical territory in which he has jurisdiction. However,
if he wanted to officiate at a marriage in the Cathedral of the
Diocese of Buffalo, he would need the delegation of the Bishop
of Buffalo in order for the marriage to be valid, even if one or
both of the parties were residents of the Diocese of Rochester.
2. The pastor of a parish has ordinary power to officiate at marriages (1) in which at least one of the parties is baptized in the Roman Catholic Church, or received into the Roman Catholic Church after baptism, (2) only within the geographical boundaries of his parish. He would need delegation from the proper authority in order to officiate at a marriage celebrated somewhere else, even if it was the marriage of one of his own parishioners. For example, John is planning to marry Sally. John is parishioner of St. Luke’s Parish where Father Smith is the pastor. Father Smith may officiate at this marriage as long as he does so within the geographical boundaries of St. Luke’s Parish. However, if he were asked to officiate at the marriage at Sally’s parish, St. Mary’s, he would need the delegation of her pastor, or of another person with the authority to delegate, in order to officiate validly at the marriage.
3. All parochial vicars and other priests formally assigned to a parish in the Diocese of Rochester are granted the faculty (power) to assist at marriages in which at least one of the parties is baptized in the Roman Catholic Church, or received into the Roman Catholic Church after baptism, only within the geographical boundaries of the parishes to which they are assigned (cf. Presbyteral Faculties, Pastoral Faculty 10)
4. A parish deacon, in the Diocese of Rochester, by virtue of the faculties (powers) granted him by the Bishop at the time he is assigned to a parish, has the authority to officiate at marriages in which at least one of the parties is baptized in the Roman Catholic Church, or received into the Roman Catholic Church after baptism, only within the geographical boundaries of the parish to which he has been assigned by the Bishop of Rochester. (cf. Faculties for Deacons, #1)
5. Other priests and deacons who are assigned to special ministries (e.g., prisons, health care facilities, etc.) always need delegation from the proper authority whenever they officiate at a marriage in which at least one of the parties is baptized in the Roman Catholic Church, or received into the Roman Catholic Church after baptism, unless they have been given general delegation for marriages at their place of assignment at the time of their appointments (e.g., college chaplains).
WITNESSES IN MARRIAGE NULLITY AND DISSOLUTION CASES
The Church recognizes the goodness of people and their natural integrity to
tell the truth. However, when dealing with trials concerning the public good,
Church law dictates that it is insufficient to prove an allegation on the
merit of testimony given only by the Petitioner and the Respondent. Canon
1536, paragraph 2 states:
In cases which regard the public good, however, a judicial confession and declarations
of the parties which are not confessions can have a probative force which the
judge must evaluate together with the other circumstances of the case; the
force of full proof cannot be attributed to them, however, unless other elements
are present which thoroughly corroborate them.
Church law allows for a variety of other forms of proof to corroborate the testimony of the parties. These corroborating proofs include the testimony or affidavits of witnesses proposed by the parties or, ex officio, by the judge(s). In a marriage nullity case, witnesses would include family, friends and other persons who know the background of the parties and their relationship. In a marriage dissolution case, witnesses are usually family members who know about the parties’ religious background and about their marriage.
Another category of witness who may prove helpful in a marriage nullity case is the Expert Witness. The Expert Witness is a person who has special knowledge about, or expertise in, a particular area that is of importance to the case. In most instances this would be a professional in the field of mental health. Character witnesses may also be helpful in a given case. A character witness is a person who can testify to the truthfulness and moral quality of one of the parties, or one of the other witnesses.
Petitioners and Respondents are asked to provide the names and addresses of the witnesses they wish the Court to question. The questioning of the witnesses usually takes place after the judge(s) has determined the grounds (reasons) for the possible invalidity of the marriage. In this way, the questioning can better address the issues raised by the parties in their testimony. A letter is sent to the witnesses explaining that the Petitioner has asked the Tribunal to investigate the possible invalidity of his or her marriage to the Respondent, and that one of the parties has asked that the witness participate in the process. The Church’s law clearly states the seriousness with which the witness should respond to this invitation. Canon 1557 indicates that a witness who chooses to decline the invitation to participate is “to inform the judge of the reason for the absence.” Canon 1562, paragraph 1, instructs the judge “to call to the attention of the witness the grave obligation to speak the whole truth and only the truth.” Paragraph 2 of that same canon reminds the judge to administer an oath to tell the truth or, minimally, to confirm that what they have stated is the truth. However, if the witness refuses to do so, the judge may accept the witness’ statements without the oath.
Witnesses in a marriage nullity case will be asked questions about each of the parties: their families of origin, their personal histories, their personalities and their understandings of marriage. They will also be asked questions about the parties’ dating and courtship and about their married life. Witnesses may also be asked to give an opinion concerning each party’s readiness to enter a new marriage. Witnesses in a marriage dissolution case will be asked about the parties’ religious background at the time of the marriage and during their married life, as well as the religious background of the Petitioner’s intended new spouse. Witnesses may also be asked to give some observations concerning the reasons for the failure of the marriage.
It is important that witnesses understand that, although their testimony is confidential and used only for the purposes of the Courts’ investigation, the Petitioner and the Respondent have the right to defend their good names and their opinions about the possible invalidity of their marriage. Thus, Church Law grants them, and their advocates, the right to review the proofs presented in a marriage nullity case, including the testimony of the witnesses. However, Church law recognizes that there are circumstances where it may be harmful should one or both parties review certain statements made by one or more of the witnesses. Canon 1598, paragraph 1 states: “In cases pertaining to the public good to avoid a most grave danger the judge can decree that a specific act must be shown to no one; the judge is to take care, however, that the right of defense always remains intact.” If a witness has a particular concern about his or her testimony and believes that one or both of the parties should be denied the right to review some or all of the witness’ testimony, he or she should make this known to the judge(s), specifying those concerns that lead to the request.
Choosing good witnesses is key to an investigation that provides the Court with the fullest and clearest understanding of the issues. This enables the Court to reach a decision that is objective and consistent with the truth. Petitioners and Respondents should speak with the people they wish to be witnesses prior to submitting their names to determine the person’s willingness to participate. Petitioners and Respondents should encourage their witnesses to be as complete as possible in responding to the questions posed, even if it seems that their answers may shed a negative light on one or both of the parties. Finally, Petitioners and Respondents should not try to “coach” witnesses in the responses they will give to the Tribunal’s questions
Annulment Process: HOW LONG DOES IT TAKE?
Once a person submits to the Tribunal of the Roman Catholic diocese of Rochester a petition to have his or her prior marriage declared invalid, the petition is reviewed to determine what type of process is necessary and whether the Rochester Tribunal has competence to judge the case. The following article addresses Formal Cases for Nullity. Other types of cases usually, but not always, take less time.
This outline is included to assist you in situating the progress of your case. The time frames must always be considered somewhat flexible, due to unforeseen circumstances, retreats, vacations, conferences and the like. A helpful book is Marriage, Divorce and Nullity by Bishop Geoffrey Robinson. It is published by Liturgical Press and should be available through most religious goods stores.
Once it has been determined that the petitioner is presenting a Formal Case for Nullity:
1. An INVITATION TO PRESENT MARITAL HISTORY is sent to the petitioner. The marital history is usually presented by way of an interview with a Tribunal staff person. Once the petitioner has presented the marital history, the petition is ready to be accepted or rejected. (The marital history includes the background of each other parties, the history of their dating and courtship and the history of their marriage or common life.) The amount of time necessary for this process depends on how quickly a petitioner responds to the invitation to present the marital history and the availability of trained personnel to assist in this process.
2. CITATION OF THE PARTIES. Both the petitioner and the respondent (former spouse) are notified that the Rochester Tribunal has accepted the petition and will conduct the appropriate investigation into the possible invalidity of the marriage. The respondent is invited to participate, to indicate his or her agreement or disagreement with the allegation of invalidity and to give his or her testimony regarding the parties and their relationship. The respondent is given at least three weeks in which to respond. If he or she participates and gives testimony, this may take longer.
3. JOINDER OF ISSUES, or setting the grounds to be investigated. The judge considers the statements of the parties and determines which area of the Church’s law regarding marriage is most clearly addressed in the allegation that the marriage is invalid. The Court may wish to consider more than one issue and, thus, more than one ground may be determined. The parties, including the Defender of the Bond, are notified of this determination and given two weeks in which to raise any concerns or objections. This entire phase may take two to three weeks to complete before moving to the next phase. (PLEASE NOTE: The determination of grounds is not a determination that the marriage is invalid but a statement of what area of the law will be considered in the investigation of the possible invalidity of the marriage.)
4. INSTRUCTION OF THE CASE, or the gathering of witness testimony and other additional proofs. Both parties are invited to provide the names and addresses of persons who are knowledgeable about their backgrounds, the background of their dating and courtship and the history of the marriage. Witnesses may be family members and/or friends. Since the marriage is either valid or invalid at the time of the exchange of vows, it is important that among the witnesses presented there be persons who knew the parties prior to the wedding. This phase of the case typically takes one to two months.
5. PUBLICATION OF THE ACTS, or notification of the participating parties that they may exercise their right to review the proofs available to the Court in reaching a decision. The parties may provide a response, or Rejoinder, to what has been presented, and also to suggest further witnesses or proofs. Participating parties are allowed two weeks to respond to the invitation to review the Acts, however, the actual review and response may extend the process well beyond this time.
6. DISCUSSION OF THE MERITS OF THE CASE. The Defender of the Bond, and the parties themselves, or their advocates, if they so choose, provide arguments for or against the alleged invalidity of the marriage based on the proofs and the laws of the Catholic Church regarding the grounds previously determined. This may take from two to four weeks.
7. SENTENCING, or decision. The arguments indicated above are submitted to the judge(s) who then decides whether there is moral certitude that the law and the proofs have overturned the presumption that the marriage is valid. If there is moral certitude of this, an AFFIRMATIVE decision is given. If not, a NEGATIVE decision is given. Sentencing typically takes two to four weeks.
8. MANDATORY REVIEW or APPEAL. An Affirmative decision must receive a mandatory review by the appellate Court for the Diocese of Rochester, the Interdiocesan Tribunal of the Province of New York. The parties have three weeks in which to lodge an appeal. If the first decision is confirmed by the Interdiocesan Tribunal of the Province of New York, the marriage is declared invalid and the parties are free to marry in the Catholic Church. (The Interdiocesan Tribunal of the Province of New York usually completes a case one to two months after the first decision, unless there is an appeal.) A Negative decision by the Rochester Tribunal ends the case unless the decision is appealed. Either an Affirmative or Negative decision by the Rochester Tribunal may be appealed to the Interdiocesan Tribunal of the Province of New York or to the Roman Rota. (Decisions by the Interdiocesan Tribunal of the Province of New York or by the Roman Rota are open to further appeals.)
The time frames offered above are minimal and tentative and presume no interruption or opposition in the process. A typical case would take from six to nine months to complete, including the confirmation of the Interdiocesan Tribunal of the Province of New York. However, coordinating schedules and observing the necessary time frames can add several more weeks to the actual amount of time that may be required. Of course, if the decision is appealed, it may take much longer.
INTERFAITH WEDDINGS
Today, many women and men enter marriages with persons of different faith backgrounds and practices. This poses many challenges to the spouses as each one seeks to grow in his and her own faith and continue the religious practices that are a part of his and her relationship with God, while at the same time fostering the unity and love that is an expression of the marital covenant. The challenges grow when children enter the marriage: In what religious tradition will they be raised? How will spouses of different traditions support one another in the spiritual growth of their children? These questions, and others similar to them, need to be addressed by the couple before they wed, lest the lived experience of their married life be troubled with religious disagreements and frustration.
When Catholics marry Christians of Churches not in union with the Catholic Church, or persons who are not baptized in any Christian Church, one of the first situations they face is the wedding ceremony itself. How can they best celebrate the wedding ceremony in a way that reflects the Catholic teachings and traditions while still respecting and honoring the traditions of the faith of the other spouse? In this regard, they must consider whether or not the marriage celebration should include the Eucharist (Mass).
Since the Second Vatican Council, the Church has encouraged the celebration of the sacraments within the sacred rites (ceremonies) of the Eucharist. However, there are many pastoral concerns that need to be addressed when making a decision about the celebration of the Eucharist at a particular wedding. For example: Is a priest available on the date and at the time the couple wishes to marry? Is the Eucharist an important part of the lives of the parties, and/or their families? What is the impact of celebrating the Eucharist on the sense of hospitality presented when the marriage brings together spouses of different church backgrounds? What if one of the parties is not baptized?
The following does not propose to be a comprehensive study of this question but will suggest some sources available in gaining a pastoral understanding of the issue and the principles to be applied.
The Rite of Marriage envisions three different rites (ceremonies) for the celebrations of marriage: (1) during the celebration of the Eucharist, (2) outside of the celebration of the Eucharist and (3) Marriage between a Catholic and a non-baptized person.
WHEN A CATHOLIC MARRIES A CATHOLIC
Current Church practice states that the normal celebration for marriage between two Catholics is to take place during the celebration of the Eucharist. Of course, as Reverend John M. Huels, a noted expert in canon (church) law, notes, there are also reasons for choosing not to do so. For example: (1) when a deacon is presiding at the marriage; (2) when the priest is already presiding at the celebration of the Eucharist twice on a weekday, or three times on a Sunday or Holy Day; (3) when one or both parties, or even their families, are not practicing their faith. We might add to these reasons: when a priest is not available.
WHEN A CATHOLIC MARRIES A BAPTIZED PERSON OF ANOTHER CHRISTIAN CHURCH
When a Catholic marries a baptized non-Catholic, hereafter referred to as the Christian spouse, the marriage may take place within the celebration of the Eucharist, if the situation warrants it, with the permission of the bishop. In the Diocese of Rochester, this permission may be presumed. Of course, there is the concern about who may receive Holy Communion at such a celebration.
The universal law of the Catholic Church allows that:
- If the Christian spouse is a baptized member of an Eastern Church not in union with Rome, commonly referred to as Orthodox, he or she is permitted to receive Holy Communion if he or she requests this of his or her own accord. However, one must be sensitive to the laws and customs of the Eastern Church that may restrict its own members from receiving Holy Communion in other Churches.
- If the Christian spouse is a baptized member of another Christian
Church or ecclesial community, he or she is permitted to receive Holy
Communion:
A) in danger of death, and/or
B) in other situations of grave and pressing need, provided that:|
• the person is unable to have recourse for the reception of Holy Communion to a minister of his or her own Church
• the person asks to receive on his or her own initiative
• the person manifests Catholic faith in the Eucharist
• the person is properly disposed.
The Sacrament of Marriage, so expressive of the unity of the spouses, seems to be a situation of grave and pressing need. Since the Christian spouse is not able to request Holy Communion from his or her own minister if the celebration takes place in the Catholic Church, if this person, during the preparation for marriage, freely requests to receive Holy Communion at the Wedding Mass, and has the same basic faith in the Eucharist as taught by the Catholic Church, he or she may receive Holy Communion, provided that he or she is properly disposed (e.g., not be aware of any serious sin, etc.).
But what of the baptized wedding guests who are not Catholic? The same conditions hold for any baptized persons who are members of Churches and ecclesial communities not in communion with the Catholic Church. Members of Eastern Churches not in union with Rome are welcome to receive if they so request. So, too, may other baptized Christians who ask of their own volition and fulfill the other requirements. However, since this request is envisioned as having been made prior to the celebration, it is not permitted to give a general invitation to receive Holy Communion at the time of the wedding celebration. Such an invitation is contrary to the spirit of ecumenical dialogue and contrary to the Catholic Church’s teaching about the Eucharist as a sign of unity already present. It may also create an uncomfortable situation for those who choose not to receive Holy Communion for whatever reason. (On this issue, see John M. Huels, Disputed Questions in Theology Today, 1988, Liturgical Training Publications, pp. 101-109 and More Disputed Questions in Theology Today, 1996, Liturgical Training Publications, pp. 113-127.)
WHEN A CATHOLIC MARRIES A NON-BAPTIZED PERSON
When a Catholic marries a non-baptized person, or when a catechumen
(a person preparing for baptism in the Catholic Church) marries in the
Catholic Church, the third rite is to be observed. This is a celebration
of the marriage outside the celebration of the Eucharist. (N.B. When
a Catholic marries a person who is not baptized, the marriage is not
considered a sacrament. It is valid, recognized and celebrated by the
Church as blessed by God, but is considered to be a natural union not
a sacramental union. If the non-baptized person is later baptized, the
marriage becomes a sacrament at the time of the baptism.)
The Church has made great strides in ecumenism. It asks that we respect the ecclesial background of persons of other faiths and no faith, who marry Catholics, and that we respect our own understanding of the sacraments that we celebrate. The instructions described above help us to understand both our similarities and differences. They are concerned with respecting these same similarities and differences.
The following sources are recommended to further your understanding of this topic:
- Directory for the Application of Principles and Norms of Ecumenism, Pontifical Council for the Promotion of Christian Unity, 1993. (Please note the year for this document as there were previous Directories issued.) Paragraphs 143-160 provide excellent information regarding ”Mixed Marriages” which it defines as marriages “between a Catholic and a baptized Christian who is not in full communion with the Catholic Church.” (paragraph 143) Paragraphs 122-136 discuss the situations and conditions that might allow for the reception of Holy Communion by a baptized, non-Catholic Christian.
- The Pastoral Companion A Canon Law Handbook for Catholic Ministry by Reverend John M. Huels, OSM, JCD (1995, Franciscan Press). Pages 264-270 include a good overview of what rites should be observed for various wedding situations.
- Preparation for the Sacrament of Marriage, Pontifical Council for the Family, 1996. Paragraphs 60-73 discuss the celebration of Marriage.
- Rite of Marriage, Congregation of Rites, 1969. This Introduction to the various rites for the celebration of marriage is a good resource, particularly paragraphs 8-11.
- “Eucharist Sign and Source of Christian Unity” by Thomas Richstatter, O.F.M. in Catholic Update, published by St. Anthony Messenger Press, May 2000.
This month’s Newsetter was adapted from two articles in the 2000 issues of LegalUpdates, vol. 9, no. 1 and 2, a publication of the Diocesan Legal Services, Diocese of Rochester
RCIA PROCESS AND ANNULMENTS
Q&A
For Pastoral Ministers
Last
months Newsletter highlighted some important issues surrounding
those wishing to celebrate the Sacraments of Christian Initiation. This
month we present Questions and Answers that we think will be helpful
for those persons who are seeking Baptism or Reception into Full
Communion and Confirmation.
HOW
OLD MUST I BE TO BEGIN THE RCIA PROCESS?
Anyone who has reached the use of reason (usually 7 years of age) should follow the general pattern of the ordinary catechumenate as far as possible. They should receive the Sacraments of Baptism, Confirmation and Eucharist at the Easter Vigil, together with the older catechumens.
WHAT
IF I HAVE BEEN BAPTIZED IN ANOTHER RELIGION?
- Obtain
a baptismal certificate or sworn affidavit regarding that baptism.
- Those
baptized in one of the Orthodox Churches (Greek, , Coptic, Ukrainian,
Armenian, etc.,) are to be received into full communion in the
corresponding Eastern Ritual Church. Please
consult the Chancery.
- Those
baptized in Episcopal, Methodist, Lutheran, or Presbyterian Churches: If
the fact of baptism is certain, the baptism is presumed to be valid. Rebaptism,
even conditional, is not permitted. When
received into the Catholic Church, they are to be confirmed and
admitted to the Eucharist.
- Baptisms
in other churches or ecclesial communities, or even privately,
apart from those listed above, are not automatically accepted as
valid and needed to be examined. For
example, in the case of Baptist baptism, it must be shown that
the baptism was administered in the name of the Trinity, and also
that true baptism took place and not just "dedication." If
conditional baptism is necessary, this must be celebrated privately
rather than at a public liturgical assembly of the community. Reception into Full Communion and Confirmation should
take place later at the Sunday Eucharist of the community or at
the Easter Vigil. The
minister of Reception into Full Communion and Confirmation should
be the same as the minister of conditional baptism.
WHAT
IF I WAS PREVIOUSLY CONFIRMED IN ANOTHER CHRISTIAN CHURCH OR ECCLESIAL
COMMUNITY?
The validity of Confirmation in other Christian faiths is not recognized (unless the person has been confirmed in an Orthodox faith - in this case consult the Chancery.) Upon Reception into Full Communion the person is be confirmed prior to receiving Holy Communion.
WHAT
IF I HAVE BEEN MARRIED MORE THAN ONCE, OR MY PRESENT SPOUSE WAS MARRIED
BEFORE?
- A
person who is presently married and wishes to celebrate Baptism
in the Catholic Church or Reception into Full Communion and Confirmation
needs to sure that his or her present marriage is valid. If
you, and/or your present spouse, have been married before, you
and/or your present spouse are presumed to be bound to the previous
marriage and were not free to enter your current marriage. Your
current marriage is presumed to be invalid and you and your present
spouse are not permitted to receive the sacraments of the Catholic
Church until, and unless the marital irregularity can be resolved.
- Resolution of this circumstance may often be resolved through a judicial or administrative process (often referred to as an "annulment") proving that a prior marriage was in fact invalid, or, in certain special circumstances, may be dissolved. Then the present marriage may be convalidated in the Catholic Church, if necessary, and you may celebrate Baptism in the Catholic Church or Reception into Full Communion and Confirmation.
WHAT
IF I AM DIVORCED, AND/OR MY PRESENT FIANCÉ(E) IS DIVORCED?
If
you are presently engaged and wish celebrate Baptism in the Catholic
Church or Reception into Full Communion and Confirmation, and you
are presently divorced, or your fiancé(e) is presently divorced,
you face a particularly difficult situation. Although
divorced persons are not prohibited from receiving the Sacraments
of the Catholic Church, should they attempt a new marriage, they
and/or the Catholic person they marry may be asked to refrain from
receiving the sacraments. Previously married persons are presumed to be bound to the
first marriage as long as the previous spouse lives. He
or she is not free to enter a new valid marriage unless the prior
marriage(s) have been declared invalid by a Church judicial or administrative
process (often referred to as an "annulment") or, in special circumstances,
declared dissolved by the Catholic Church. The
new marriage, absent the judicial or administrative process mentioned
above, is presumed to be invalid and the parties are not permitted
to receive the sacraments of the Catholic Church until, and unless
the marital irregularity can be resolved.
WHAT
IF MY SPOUSE AND I HAVE ONLY BEEN MARRIED TO EACH OTHER BUT OUR MARRIAGE
WAS NOT IN THE CATHOLIC CHURCH?
- If
one of you was Catholic at the time of the marriage, the Catholic
Church does not recognize your marriage as valid, unless there
had been some dispensation (relaxing) of the law regarding the
form of marriage Catholics must observe. You will probably need to have your marriage convalidated
in the Catholic Church.
- If
neither of you was Catholic at the time of your marriage, neither
of you was bound to observe Catholic law regarding the form of
marriage and the Catholic Church recognizes the validity of your
present marriage, as long as neither of you had been married before. You
need do nothing further.
WHAT
IF I AM DIVORCED AND HAVE NOT REMARRIED?
Although
divorced persons are not prohibited from receiving the Sacraments
of the Catholic Church, should they attempt a new marriage, they
and/or the Catholic person they marry may be asked to refrain from
receiving the sacraments. Previously
married persons are presumed to be bound to the first marriage as
long as the previous spouse lives. He
or she is not free to enter a new valid marriage unless the prior
marriage(s) have been declared invalid by a Church judicial or administrative
process (often referred to as an "annulment") or, in special circumstances,
declared dissolved by the Catholic Church. It
is, therefore, usually advisable to obtain a decree of nullity prior
to celebrating Baptism in the Catholic Church or Reception into Full
Communion and Confirmation. Since each person's situation and circumstances are unique,
it is best to consult with your parish pastoral minister in this
regard.
WHAT
IF I AM DIVORCED AND MY FORMER SPOUSE HAS DIED?
Your marriage ended with the death of your former spouse. You need only show proof of his or her death.
RCIA PROCESS AND ANNULMENTS
Each year many people seek to celebrate the Sacraments of Christian Initiation at the Easter Vigil. The Church provides a process, The Rite of Christian Initiation for Adults, in order that they may be properly prepared to enter into the fullness of these sacraments. Part of this process considers their canonical standing in light of the Church's teaching regarding who may receive the various sacraments. For example, a person who is baptized in the Episcopal Church is considered to be validly baptized and would not be "re-baptized", even conditionally, unless there was some doubt regarding the baptism.
One area that is sometimes confusing for persons seeking baptism or admission to full communion in the Catholic Church is the Catholic Church's teaching regarding a valid marriage. In this regard, it is important for the Pastoral Minister preparing persons in the RCIA process to ask the prospective catechumens and candidates questions about their marital status that will enable the Pastoral Minister to determine the canonical status of those persons' present or past marriages.
In the very near future the Tribunal will be posting a Q&A to assist Pastoral Ministers in determining when there may be a canonical issue that needs to be addressed before a person may be baptized or received into full communion. For now, however, as rule of thumb please do the following:
If the prospective catechumen or candidate is presently married, ask:
- Is this his or her first marriage? (Religious or civil.)
- Is the current marriage his or her present spouse's first marriage? (Religious or civil.)
- If one of the parties of the present marriage is Catholic, was the marriage celebrated in accord with Catholic form or with a dispensation from that form?
If the answer to any of these questions is no, further investigation needs to be done to see if there is need for canonical resolution to possible delays in proceeding with baptism or reception into full communion.
If the prospective catechumen or candidate is not presently married, ask:
- Is he or she presently divorced?
- Is he or she presently dating or engaged to someone who was previously married?
If the answer to either of these questions is yes, further investigation needs to be done to see if there is need for canonical resolution to possible delays in proceeding with baptism or reception into full communion.
LEGITIMACY
OF CHILDREN OF AN INVALID MARRIAGE
The
question is often asked: What
about the children of a marriage that has been declared invalid (null)
by the Catholic Church - are they now illegitimate?
In
former times, legitimacy or illegitimacy had a much greater effect
on one's standing in both Church and civil law. Many
countries followed the Church laws in this regard. Legitimacy
affected one's rights to succession and inheritance. It also affected the obligations borne by the legitimate parents
of the offspring.
Today
legitimacy still affects the way civil law is applied in a particular
situation. For example, civil inheritance laws and laws governing financial
obligations after a civil divorce affect the rights of offspring. However,
universal Church law no longer imposes any negative restrictions upon
illegitimate children. (Particular
laws for a given diocese or specific groups or persons within the Church,
or concordat laws between Church and state, may still impose some restrictions.)
Nonetheless,
the Church does address the issue of legitimacy in its law. Canon
1137 of the current Code of Canon Law states: "The children
conceived or born of a valid or putative marriage are legitimate." Canon 1061, paragraph 3, describes a "putative marriage" and
states: "An invalid marriage is called putative if it has been celebrated
in good faith by at least one of the parties, until both parties become
certain of its nullity." This
means that any children born prior to the spouses' certainty that the
marriage invalid are, by law, considered to be legitimate.
(See
commentary on both canons in New Commentary on the Code of Canon
Law, ed. Beal, J, Coriden, J., Green, T., Paulist Press, Mahwah,
NJ, 2000.)
The
majority of petitions presented to Tribunals by persons seeking a decree
of invalidity of a previous union concern marriages that were celebrated
in good faith by at least one of the parties. If
the conclusion of the Court is that the marriage is, in fact, invalid,
the children remain the legitimate offspring and heirs of their parents. There
is no change in their status. The
Church is concerned for the well-being and natural rights of these
children and emphasizes this in Canon 1071, paragraph 1, number 3. This
law states that, except in the case of an emergency, no person is to
officiate at "a marriage of a person who is bound by natural obligations
towards . children arising from a prior union" unless the local ordinary
has first granted permission.
There
are circumstances when a marriage is not celebrated in good faith by
either of the parties or is celebrated without regard to the prevailing
laws regarding the form of marriage. Children
born of such a marriage may not be considered legitimate in law until
it becomes valid. Nonetheless, the natural obligations of the biological parents
remain and Canon 1071, paragraph 1, number 3 still applies.
The laws of the Church regarding legitimacy of children show the Church's concern for the care and proper upbringing of children. They provide a clear statement of the status of children when the marriage of their parents has been found to be invalid. Clearly, the Church's teaching is that children are legitimate even though their parent's marriage is latter declared to be invalid though the Church annulment process.
RESTRICTIONS ON FUTURE MARRIAGES
Once the testimonies and proofs have been presented to the Court, the judge or judges, proceed to a determination regarding the allegation that the marriage is invalid. The conclusions of the Court are written in a document known as the Sentence. The Sentence also contains the pertinent data relative to the relationship of the parties, a discussion of the Law described in the Grounds for the alleged nullity, and the application of that Law to the proofs and testimonies. The Sentence may also contain a Restriction on the future marriage of either or both parties.
Each year, the judges of our Tribunal impose restrictions on the future marriages of petitioners and respondents whom they believe need some extra pastoral and/or other professional assistance prior to entering a new conjugal relationship. These parties are notified of the restrictions and a notation is made on the notifications of nullity issued to their churches of baptism and marriage.
Restrictions may be imposed for a number of different reasons. For example, it may be that the person has an erroneous understanding of one or more of the bona (goods) of marriage (e.g., permanence, fidelity, openness to children) and placed a wrong or contrary intention at the time of consent. In such a case, the Court might impose a restriction of Pastoral Counseling. This would entail special counseling by a pastoral minister who could instruct the party concerning the Church’s teaching regarding the bona of marriage and the intent that is required for a valid marriage. Or, it might be that the Court observed that the testimony regarding one of the parties leads to the conclusion that the person has certain psychological issues (e.g., psychological illness, addictions) that directly affect the health of an interpersonal relationship. In such a case, the Court might impose a restriction of Psychological Counseling. This would involve meeting(s) with a mental health professional to discuss the concerns of the Court and an evaluation to determine the readiness of the person to enter into a healthy conjugal union.
Restrictions are not punishments. They are meant to help persons to enter healthy and permanent marital relationships and to avoid a recurrence of the past harmful behaviors. They are also sometimes meant to protect prospective new partners from behaviors that might be harmful to them or to the relationship. Restrictions can also help pastoral ministers in preparing parties for future marriages.
If your marriage has been declared invalid and you have been notified of such a restriction, please call the Tribunal so that one of the judges may discuss with you the meaning of that restriction and what you need to do before marrying in the Catholic Church.
WHICH TRIBUNAL IS COMPETENT TO RECEIVE MY PETITION?
Not every Tribunal is competent (has jurisdiction) to accept every petition it receives. The following summary will be helpful in deciding how to proceed with a particular case.
DECREES OF INVALIDITY (Formal and Documentary Processes)
Canon 1673 of the Code of Canon Law (1983) specifies the competent Tribunals for petitions for declarations of invalidity of marriages. The Tribunal of the territory where the marriage was celebrated and the Tribunal of the territory where the respondent (the former spouse) resides are always competent. The Tribunal of the petitioner is competent only if (1) both the petitioner and the respondent reside within the territory of the same Conference of Catholic Bishops AND (2) the Judicial Vicar of the respondent grants permission after having consulted with the respondent. Finally, the tribunal of the place where most of the testimony may be collected can declare itself competent with the permission of the judicial vicar of the respondent after having heard any objections the respondent may have to this.
DECREES REGARDING LACK OF CANONICAL FORM
This is not a judicial process. Petitions may be made to the Tribunal of the Diocese of Rochester, or to any other Tribunal.
PAULINE PRIVLEGE and DISSOLOUTION OF THE MARRIAGE BOND IN FAVOR OF THE FAITH
This is not a judicial process. Petitions for the Pauline Privilege are made through the petitioner's Bishop or his delegate for this process. Currently, in the Diocese of Rochester, the petition is made through the Bishop's delegate, the Judicial Vicar of the Diocese. Petitions for the Dissolution of the Marriage Bond in Favor of the Faith are made to the Holy Father (the Pope). However, the preparation of these cases is under the care of any Bishop or his delegate. In the Diocese of Rochester, application for this process is made through the Tribunal.
May 2004 Newsletter
WHAT MAKES A MARRIAGE INVALID?
Part II
Last month's Newsletter began a discussion
of possible areas of nullity in a marriage. This
month's Newsletter continues that theme and takes up the topic
of LACK OF PROPER CONSENT. Canon
1057 states that the consent of the parties is what brings about a marriage. However,
this consent may be flawed for many different reasons. This
could lead to invalid consent and an invalid marriage. [Remember,
a marriage is presumed to be valid unless otherwise proven. The
fact that a marriage proved troublesome to or difficult for one or both
of the parties does not necessarily mean that the marriage is invalid. Nor
does the fact of a divorce make a marriage invalid. These
may be indicators of areas you may wish to pursue further in considering
the possible invalidity of a marriage.]
LACK OF CONSENT (Canons 1095-1107)
The overwhelming majority of marriage nullity cases
are judged on grounds pertaining to a lack of proper consent at the time
of the exchange of marriage vows. According
to canon law, consent makes marriage. Where
there is a failure on the part of one or both parties to give the full
consent required by the law, the marriage is invalid. These
grounds fall into three categories: defects
of consent, defects of knowledge, and defects of the will.
A. DEFECTS
OF CONSENT
1. LACK
OF REASON - to enter a valid marriage a person must have
sufficient reason to know what he or she is doing. A
grave lack of reason can cause the marriage to be invalid. This
lack of reason can be either a permanent or a transitory condition.
2. GRAVE
LACK OF DISCRETION OF JUDGEMENT - to enter a valid marriage,
persons not only need to be able to understand the rights and obligations
of marriage but also need to be able to judge their own ability,
and that of their intended spouses, to give and receive those same
rights and obligations. If
there are conditions that seriously affect this judgment process
in an adverse manner, a person's ability to give consent is diminished. This may be to such a degree as to void the consent itself. The
Courts look at emotional immaturity, lack of internal freedom and
many other psychological factors that may affect judgment.
3. INCAPACITY
TO ASSUME THE ESSENTIAL OBLIGATIONS OF MARRIAGE DUE TO REASONS OF
A PSYCHOLOGICAL NATURE - if there is a true psychological
illness present that deprives one or both of the spouses of the ability
to assume and carry out the essential obligations of marriage, the
marriage may be invalid. A
person cannot consent to something that he or she is not capable
of fulfilling.
B. DEFECTS
OF KNOWLEDGE
1. IGNORANCE - A marriage is invalid if a person is ignorant that marriage is:
a. a permanent relationship
b. between a man and a woman
c. ordered for the procreation of children through some form of sexual cooperation
Since such ignorance is not
presumed once a person reaches puberty, it must be proven that, in a
particular case one or both of the spouses actually was ignorant of one
or all of the above facts.
2. ERROR - A marriage is invalid if a person
a. is in error about the very person he or she is marrying. (e.g., I think I am marryingone twin but in fact marry the other.) OR
b. is in error about a quality
of the other person if that quality was directly and principally intended
(e.g., I will marry you because I believe that you are the mother of
my child. The truth is that
you are not the mother of my child.)
3. DECEIT - A marriage is invalid if a person enters marriage deceived by another.
a. The deception may be either by the other spouse or by some third party.
b. The deception must be for the purpose of gaining the person's consent to the marriage.
c. The deception must be about some quality of the other party which of its very nature can seriously injure the conjugal partnership.
4. SIMPLE ERROR - Error about unity, indissolubility or the sacramental dignity of marriage DOES NOT make a marriage invalid UNLESS such error determines the will.
C. DEFECTS
OF THE WILL
Canon 1057 states that the consent of the parties is what brings about a marriage. It also states that consent is an act of the will. Canon 1101.1 states that internal consent is presumed to conform to a persons outward words and actions, i.e., what a person says and does is what that person intends. However, it is possible that a person's external actions belie his or her actual will.
1. SIMULATION invalidates marriage
a. Full simulation occurs when a person, by a positive act of the will, excludes marriage itself. (E.g., one person pretends to marry another in order to gain admittance to a country.)
b. Partial simulation occurs when a person, by a positive act of the will, excludes an essential element or property of marriage. (E.g., I exclude your right to a permanent relationship.) The essential elements of marriage are the good of children and the good of the spouses. The essential properties of marriage are unity (fidelity), indissolubility (permanence) and sacramentality.
2. FORCE AND GRAVE FEAR invalidates marriage if
a. it is imposed from a source outside the person himself or herself;
b. it is either intentional or not intentional;
c. it is something from which the person judges there is no escape other than to enter the marriage. One thing to look for in such a situation is the actual aversion the person has to the marriage. If this aversion is strong and the person still consents to the marriage there is a good reason to suspect the invalidity of the marriage.
3. CONDITIONAL CONSENT - the consent depends on the presence of the condition. The condition must be so important that the person rates it higher than the marriage itself.
a. Marriage based on a condition about the future is invalid.
b. Marriage based on a condition about the past or present may be either valid or invalid depending upon whether or not the matter of the condition exists.
c. The condition mentioned in b cannot be placed licitly without the written permission of the local ordinary.
SOME HELPFUL RESOURCES
BEAL, John P, CORIDEN, James A, GREEN, Thomas J. New Commentary on the Code of Canon Law. Mahwah, NJ: Paulist Press, 2000
FOSTER, Michael Smith. Annulment The Wedding That Was. Mahwah, NJ: Paulist Press, 1999.
KEEFE, Jeffrey. Why the Church Is Granting More Annulments. Cincinnati, OH: St. Anthony Messenger Press CATHOLIC UPDATE CU 1080, 1980. (This has been updated to reflect the 1983 Code of Canon Law.)
McKENNA, Kevin E. A Concise Guide to Canon Law A Practical Handbook for Pastoral Ministers. Notre Dame, IN: Ave Maria Press. Inc., 2000
ORSY, Ladislaus. Marriage in Canon Law. Texts and Comments, Reflections and Questions. Wilmington, DE: Michael Glazier, Inc., 1986.
ROBINSON, Geoffrey. Marriage, Divorce & Nullity. A Guide to the Annulment Process in the Catholic Church. Collegeville, MN: The Liturgical Press, 1993.
April
2004 Newsletter
WHAT
MAKES A MARRIAGE INVALID?
This month's Newsletter discusses
possible areas of nullity in a marriage. Remember,
a marriage is presumed to be valid unless otherwise proven. The
fact that a marriage proved troublesome to or difficult for one or
both of the parties does not necessarily mean that the marriage is
invalid. Nor does the
fact of a divorce make a marriage invalid. These
may be indicators of areas you may wish to pursue further in considering
the possible invalidity of a marriage.
There are three areas of concern when
looking at the possible nullity of a marriage: LACK
OF CANONICAL FORM, IMPEDIMENTS TO MARRIAGE and LACK OF CONSENT. You
will find the pertinent law in the 1983 Code
of Canon Law, canons 1055-1165. A
good commentary will also prove helpful. The
Canon Law Society of America publishes one for the entire code.
Reverend Ladislaus Orsy, SJ has written a commentary on marriage law alone (Marriage in Canon Law). The following is a summary of most of the areas you should consider.
LACK OF CANONICAL FORM - (Canons
1108-1123)
The Church has established certain norms regarding the observance of canonical form by Catholic persons wishing to be married. Canonical form requires that consent be given in the presence of the local Ordinary, the pastor of the parish or a lawfully delegated priest or deacon and in the presence of two witnesses. If the Catholic party does not receive a dispensation from canonical form and canonical form is not observed, then the Catholic Church does not recognize the marriage and the two parties are free to marry once one of them has submitted the documents needed to prove that canonical form was not observed. The required documents are: recent baptismal record of the Catholic party; transcript of the marriage record that includes the name and title of the officiant; decree of absolute divorce. Once the lack of canonical form has been proven, a decree of freedom to marry is issued. Please note: this is NOT a declaration of nullity. [See the March 2004, Newsletter for a more in depth discussion of Canonical Form.]
IMPEDIMENTS TO MARRY (Canons 1073-1094)
An impediment is a circumstance that
renders the marriage invalid or illicit. Impediments
are either of divine law or of ecclesiastical law. Only
the supreme authority of the Church can declare when a divine impediment
prohibits or invalidates a marriage and only that same authority can
establish other impediments for those who are baptized. (See
canon 1075.) All persons
are bound to divine impediments. Only
Catholics are bound to ecclesiastical (Church) impediments, unless
otherwise stated. (Ecclesiastical
laws often affect those who are not Catholic but wish to marry a Catholic.)
Impediments are either ABSOLUTE or RELATIVE. They
are absolute if they describe a situation in which the person is impeded
from marriage to any person (e.g., a person who is in Sacred Orders
may not marry any person). They
are relative if they describe a situation in which the person is impeded
from marriage to a particular person (e.g., a man may not marry his
mother but he may marry his next door neighbor).
The
Impediments:
1. AGE. A man must be 16 years old; a woman must be 14 years old. This
is the same as the law of the 1917 Code. However,
a particular Conference of Bishops could determine a different age
for their territory, something to consider when dealing with marriages
celebrated outside of the USA.
2. IMPOTENCE. The inability to engage
in normal intercourse in a human manner must have been present before
the exchange of vows and it must be a permanent condition. However,
the impotence may be either absolute (impotent with any partner) or
relative (impotent only with a particular partner).
3. PRIOR
VALID BOND. The
Church presumes the validity of any marriage celebrated in a lawful
manner. If a Catholic
party is involved, the lawful manner requires the observance of
canonical form. If
neither party is Catholic, some other legitimate manner of celebration
would apply. A valid
previous marriage impedes a new marriage as long as both parties
live.
4. DISPARITY
OF CULT. If
a Catholic attempts to marry an unbaptized person without the required
dispensation, the marriage is invalid.
5. SACRED
ORDERS. A
Catholic priest, deacon or bishop may not marry.
6. PUBLIC
PERPETUAL VOW OF CHASTITY IN A RELIGIOUS INSTITUTE. Every
word in this impediment is important. A private vow
may morally oblige a person to remain celibate but it does not
invalidate a marriage.
7. ABDUCTION. If a man abducts a woman with the intention of marrying her,
and attempts to do so, the marriage is invalid.
8. CRIME
(CRIMEN). This
occurs when a person murders, or causes to be murdered, his/her
own spouse or that of another, with the intention of marrying the
other person. This
is somewhat different from the 1917 Code which included adultery
as a part of crimen.
9. KINSHIP. This includes a number of impediments based on relationships. This
is not an easy one and differs somewhat from the 1917 Code.
a. Related
by blood in a direct line. (E.g.,
Mother to son, Grandfather to granddaughter.) There is no dispensation
for this.
b. Related
by blood in a collateral line up to the 4th degree. (E.g., brother to sister, aunt to nephew.) May
be dispensed in 3rd and 4th degree.
c. Affinity
in the direct line. (Relationships
between in-laws.) May be dispensed.
d. Adoption
- in the direct line or in the collateral line to the 2nd degree. May
be dispensed.
e. Public
Propriety - in the first degree of the direct line of consanguinity. (E.g.,
persons who wish to marry the relatives of a person with whom they
have cohabited.) May be dispensed.
Some examples
of the various relationships:
DIRECT LINE/BLOOD
- a man to his mother, grandmother, daughter, etc.
COLLATERAL
LINE/BLOOD - a woman to brother, uncle, cousin, etc.
AFFINITY/DIRECT
LINE - a man to his wife's mother, wife's grandmother, wife's daughter
Next month the Tribunal Newsletter will
discuss common and not-so-common consensual grounds for marriage nullity.
March 2004 Newsletter
Canonical
Form of Marriage
What
it is and how it affects the canonical status of persons?
-
What is the canonical form for marriage?
Canonical
form is the
valid form by which Roman Catholics marry. It
requires that:
[Of
course there are exceptions to this law. You will rarely see them but check out canons 126 (common
error) and 1116 (impossibility of properly delegated person).]
2.Who
may dispense from the obligation of canonical
form?
The
local ordinary (diocesan bishop, vicar general), or one delegated
by him, may dispense from this obligation.
-
Who is obligated to follow canonical form for marriage?
The
law of the Roman Catholic Church in effect since November 29, 1983,
obliges:
[Prior
to this date but after January 1, 1949, all Roman Catholic persons,
whether or not they left the Catholic Church by a formal act, were
obliged to follow proper canonical form. Prior
to January 1, 1949, but after May 19, 1918, those baptized of non-Catholic
parents in the Catholic Church, but raised in another Church or without any
religion were also exempt from canonical
form.]
-
What is the marital status of persons obligated to canonical form who have not observed it?
The
Catholic Church does not recognize their marriages. They
remain free to marry in the Catholic Church, provided they are
not bound to some other valid marriage or vow.
-
What is necessary in order to validate a marriage where canonical form has not been observed?
Such
a marriage may be validated in two different ways.
- What
is necessary to prove the freedom of a person to enter a new
marriage when a previous marriage, now ended, suffers from
a lack or defect of canonical form?
- That canonical
form was either totally ignored or was flawed in someway. For
example, if one of the parties was Catholic and the officiant
of the marriage was a justice of the peace, there would be
an absence of canonical form unless a dispensation had been
granted by the Catholic party's local ordinary.
(Revised from LEGAL UPDATE [March 2001, vol. 10, no. 1], Diocese of Rochester)
February 2004 Newsletter
CAN
THE TRIBUNAL HELP ME?
I
WAS MARRIED AND DIVORCED.
I WANT TO MARRY AGAIN.
The
Tribunal is an Ecclesiastical (Church) Court for the Roman Catholic
Church, which adjudicates matters of Church law and discipline. Although
Tribunals may be entrusted with many judicial matters, most of the
ministry of the Tribunals in the United States addresses issues concerning
the freedom of people to marry in the Catholic Church.
The
Church teaches that people, once validly married, are not free to
marry again so long as both parties live. The
Church presumes that a marriage is valid unless otherwise proven,
and this is true of marriages of Catholics and non-Catholics alike.
When
marriages fail and one or both parties wish to enter into a new union
in the Catholic Church they must confront the issue of the validity
of their previous marriage. If
one of the parties has some reason to doubt the validity of that
marriage he or she can ask the Tribunal to hear the cause and investigate
the possibility that the marriage was invalid from its very beginning
or that there is some other reason why the parties might be free
to marry again.
The
annulment process is not the only process by which persons may be
declared free to marry even though they have been previously married. For
example, it may be that the person is free to marry in the Catholic
Church because the previous marriage lacked the required canonical
form.
A
lack of canonical form is the situation where a Catholic has married
contrary to the law of the Catholic Church. That
law requires that a Catholic marry before two witnesses and a duly
delegated representative of the Church. This
representative is usually a bishop, priest or deacon. Thus, a marriage involving a Catholic which is celebrated
in another manner, without a dispensation from the proper ecclesiastical
authority, and which has not been later validated by the Church,
would not be recognized as binding by the Catholic Church. Should
such a marriage end in divorce and should either of the parties wish
to marry in the Catholic Church, he or she would simply file with
the Tribunal the appropriate petition (available at every parish)
and submit a baptismal record for the Catholic party, a transcript
of the marriage record showing the name and office of the person
who officiated, and a decree of absolute divorce or civil annulment. The
petition is reviewed and, if the required proofs are present, a document
of freedom to marry is issued. This usually takes
less than one week to complete.
The
Tribunal also addresses issues of valid, non-sacramental marriages. Any
time two baptized persons marry, whether or not either is Catholic,
the marriage is considered to be a sacrament. However,
anytime one or both of the parties is not baptized, even if one is
Catholic, and even if the marriage is celebrated in the Catholic
Church, it is not a sacrament. Valid
non-sacramental marriages may be dissolved, according to Church teaching,
in two ways - Pauline Privilege and Dissolution of the Marriage Bond
In Favor of the Faith (Petrine Privilege).
Most
of the petitions are formal causes for a declaration of invalidity
(annulment) of the marriage. As
stated earlier, the Church presumes that a lawfully celebrated marriage
is valid. In this regard
the Church respects the right to marry of each person who is capable
of doing so. The Church also acknowledges that those who are not subject
to the laws of the Catholic Church do not have to follow merely Church
law regarding the way in which the marriage must be celebrated, unless
of course he or she is marrying a Catholic. The
Church does, however, hold that there are natural and God-given laws
that apply to everyone in the matter of a valid marriage. A
person who has once married and now seeks to marry in the Catholic
Church must show his or her freedom to marry. Thus,
the party must prove that the marriage, which appeared to have been
valid, is in fact not.
There
are many reasons for which a marriage may be invalid.
 |
There are impediments of Church and natural law. These are obstacles that prevent the marriage vows from being effective. Some may be dispensed from; others may not. Some examples:
|
||||||||
|
There may be a lack of capacity to marry.
|
||||||||
|
There may be a contrary intention.
|
||||||||
|
There may be force and fear, and certain types of
deceit.
|
If
a person believes that his or her marriage is invalid from the very
beginning due to one of the possible causes for invalidity, he or
she may ask the Tribunal to study the proposed reasons, listen to
the proofs and make a judgment concerning the issues. Because
a marriage involves two persons, the petitioner's former spouse,
known as the respondent, has a right to respond to the claim of invalidity
and is invited to participate in the process. The
petitioner is asked to provide witnesses who can attest to the situations
that support the claim of nullity. The
respondent may also submit witnesses. The
testimony of the petitioner, respondent and witnesses is confidential
to the Tribunal and to the two parties. These records are not available to the civil courts, to the
media or to other persons external to the ecclesiastical (Church)
process.
Once
the proofs are gathered, the Defender of the Bond, who is charged
with the role of pointing to those elements that suggest the validity
if the marriage, reviews the material and presents his or her comments
to the judges. The judges
then weigh the evidence and arguments presented and makes a decision
as to whether or not there is sufficient proof to support the allegation
that the marriage is invalid.
If
the decision is affirmative, the case automatically goes to
the next higher Court for review and possible confirmation. If the decision of the first Court is confirmed, the marriage
is declared invalid and both parties are free to marry in the Catholic
Church. Parties have
the right to appeal the decision of either Court.
People
often ask how long such a process takes - they usually mean, "When
can we set the date for our new marriages?" There
is no simple answer to this question. It
depends on the participation of the former spouse and the availability
of quality testimony. It
also depends on whether or not an opposing party wishes to appeal
the decision of the Court. It
is also important to remember that the final judgment could be that
the invalidity is not proven. The
Tribunal examines the evidence presented and makes the best decision
it can, based upon the law and the testimony. No
date for a new marriage in the Catholic Church may be set
before a decision is given because the decision may in fact be negative.
Having
said that, we can also say that a great many of our cases take from
four to six months before the first Court reaches a decision and
about another two months before the Second Court has reached its
decision.
The
Church wishes to protect the sanctity of marriage. The Church also seeks the Truth and desires to assist people
in living their lives as God calls them. If
the marriage was not valid, people have a right to know that they
are free to marry. This
process is not just for the rich and the famous. (In
fact, the fees assessed cover only a portion of the actual costs
and may be partially or totally waived if there is sufficient financial
hardship.) Nor is it
just for Catholics. Often,
those of other faiths apply for a declaration of invalidity in order
to marry a Catholic in the Catholic Church, or to be admitted into
full communion in the Catholic Church.
A
declaration of invalidity is not a divorce. A
divorce declares that a presumed valid marriage is now ended; a
declaration of invalidity declares that the marriage never was
valid according to the laws of the Catholic Church. It
means that a relationship celebrated in good faith in some formal
ceremony was lacking in some essential element and that this lack
caused the marriage to be invalid from day one. Such
a marriage is called putative - "thought to be valid." It
does not mean that there was nothing at all. A
relationship existed. This
relationship had civil standing. The
children of the marriage are legitimate. There are legal
obligations of spouses and parents. There are also
moral obligations of the spouses toward each other and parents
toward their children.
