The Gazette 1978

GAZETTE

SEPTEMBER 1978,

(k) Appeal to Court of Second Instance

(1) Further Appeals and Issue of Decree of Nullity

(m)Conditions attached to Decree of Nullity

(n) Rejection of the Petition

(o) Informal or Administrative Procedure.

6. Dispensation of a Non-Consummated Marriage

(i) General

(ii) Proof of Non-Consummation

(iii) Procedure for Obtaining Evidence

(iv) Comments on Evidence and Transmission to

Rome

(v) Procedure in Rome

(vi) Restrictive Clauses

7. Dissolution of The Natural Bond

(i) Power of Pope to Dissolve Non-Sacramental

Marriages

(ii) Requirements for Petition for Dissolution

(iii) Proof of Non-Baptism

(iv) Comments on Evidence and Transmission to

Rome

(v) Discretion of Pope whether to Grant

Dissolution.

Marriage Annulment in

the Catholic Church

1. General Summary

(a)

The Scope of Marriage Tribunal Work:

There is

either a marriage tribunal for each diocese or

alternatively, and more commonly nowadays, tribunals

arranged on a regional basis covering a number of

dioceses in a geographical area. In Ireland, there are four

regional marriage tribunals, one based in Dublin for the

Archdiocese of Dublin and the Dioceses of Meath,

Kildare and Ossory, and Ferns; and others centred in

Cork, Galway and Armagh. The sphere of action for the

tribunal is fairly restricted, that is restricted within the

confines of what the Roman Catholic Church (herein

generally referred to as "the Church") believes marriage

to be — essentially a union which is indissoluble,

provided it is valid, sacramental and consummated. In

considering the work of a marriage tribunal, one

considers two aspects, firstly, the procedure which must

be adopted in the examination of the marriage, its

circumstances and the parties to it and, secondly, the law

which constitutes the criteria for that examination.

Essentially, the law is contained in the Code of Canon

Law (1918), but a vast part of the ramifications of what is

briefly contained in the Code is contained in another

source — namely the jurisprudence of the Church's

courts, which is a product of case after case in which the

law is explained and refined and developed, leading to a

greater understanding of what constitutes marriage and,

especially, what creates a bar to a union being a valid

marriage.

(b)

General Principles:

Part of the Church's teaching

of marriage is that a valid, sacramental and consummated

union is indissoluble. This means that two baptised

persons who were married in accordance with the law,

and whose union has been consummated are bound in an

indissoluble union sanctified by God until the death of one

of the partners. This applies equally to Roman Catholics

(herein generally referred to as "Catholics") and non-

Catholics but an additional law to which Catholics must

conform is the rule that, without a general or special

dispensation, those baptised in the Church must be

married before a priest and two witnesses; this rule is

termed the "form" of marriage. It is not correct to state

that the Church does not recognise a marriage which

takes place between two non-Catholics in a marriage

136

who are bound to the form of marriage (i.e. before a priest

and two witnesses) a marriage can (canonically) take

place anywhere. The Church teaches that what makes the

marriage is the consent of the partners and assuming

consent has been given by both the parties to a marriage

the union is valid; and, assuming that the same union is

also sacramental and consummated, it is indissoluble.

Therefore, the three elements of an indissoluble union in

Church law are (i) validity, (ii) sacramentality, and (iii)

consummation. Die work of a marriage tribunal centres

around the determination of these three elements.

(c)

Validity:

The validity of a marriage depends on the

consent of both parties to the marriage. This consent

must be an irrevocable personal consent given by the two

parties to the union involving a relationship between them

which is lasting and permanent, which in no way excludes

the possibility of children and which imposes the mutual

obligation of total fidelity of one party to the other.

Therefore, what a couple consent to when they exchange

their promises in marriage are (i) the permanence of the

bond, (ii) the right to children within the union, and (iii)

the total fidelity imposed on the couple as a result of the

other two essentials. These three points are made very

clearly in the Pastoral Constitution of the Second Vatican

Council,

The Church in the Modern World.

If any of

these three essentials are lacking at the time of the

marriage ceremony the marriage would not be valid since

the persons concerned had not "consented to Christian

marriage". Also if one of the parties at the time of the

marriage ceremony was insane which prevented him from

giving proper consent to a marriage, then the union for

that reason would be null and void; similarly, if the

marriage was entered into as a result of force exerted or

fear induced on one or other of the parties.

All these elements, namely, the complete lack of

consent to a Christian marriage, the exclusion of the

permanence of marriage, the exclusion of the right to

children, the exclusion of fidelity, the inability to consent,

and consent obtained as a result of great pressure, are all

matters which are the subject of detailed examination in

any nullity proceedings in a marriage tribunal.

Also, the tribunal would have to give consideration to

the question of impediments to the contracting of a