The Gazette 1978

GAZETTE

SEPTEMBER 1978,

marriage. Certain of these impediments are regarded as

being based on the Divine Law i.e. the law established by

God, with Church laws merely restating them.

Other laws concerning marriage are ones which have

been made by the Church and are called ecclesiastical

laws. Impediments which, when not dispensed, render a

marriage null and void, are termed diriment impediments.

Impediments of Divine origin cannot be dispensed, but

some of the impediments of ecclesiastical origin can be

dispensed.

(d)

Sacramentality:

The marriage will be a sacrament

when both parties to it are baptised, i.e. both are members

of the Christian community. Equally, if both parties are

baptised after the marriage has been celebrated their

existing marriage thereby becomes a sacrament. Though

a marriage may not be a sacrament it is nonetheless

assumed to be valid and binding and the couple who are

parties to a non-sacramental union are nonetheless bound

to a permanent union. However, where the marriage is

not a sacrament the Pope has power, which he can

exercise in very special circumstances, to dissolve a non-

sacramental union which has already broken down. This

power of the Pope is often referred to as the "Petrine

Privilege".

(e)

Consummation:

If a sacramental and valid marriage

has not been consummated it is possible to have a

dispensation of it by the Pope. The local marriage tribunal

acting on behalf of the Holy See acts in an administrative

capacity in that type of case and assembles indications

and proof that the marriage in question has not been

consummated.

Lack of Form:

As already stated Catholics are

bound to the form of marriage (i.e. before a priest and two

witnesses) unless there is a dispensation. Where a

marriage takes place without such a dispensation whether

in a Church of another denomination or in a register

office it is regarded as not being a marriage conforming to

the law of the Church and would be invalid. At present

there is much discussion about this law and especially

whether it should be retained.

2 The Grounds for Nullity — Consent

Total Simulation

This is a situation in which a person, though he

appears to give consent to his marriage, in fact does not

give internal consent. When consent is completely

withheld the marriage is null and void. The term given to

this type of situation is "simulated consent" or "total

simulation". For such a marriage to be proved null and

void, the firm intention of not contracting the marriage,

despite all external signs to the contrary, must be

demonstrated by means of witnesses who knew about

these facts before, during and after the wedding. The law

of the Code of Canon Law is clearly that the presumption

must be against such simulation and very clear proof

must exist before a tribunal can rule that the marriage in

question is invalid. For total simulation to be proved

Church jurisprudence demands four basic requirements —

(a) that there is some statement made by the person who

simulated his consent (e.g. the person concerned made a

statement admitting the simulation just after the wedding

ceremony, and there is a witness to testify to this); (b) that

there is some reasonable explanation for the simulation,

(e.g. a person was browbeaten into marriage, or where

strong pressure or even grave fear existed); (c) that the

circumstances surrounding the marriage point towards

simulation as a possibility (e.g. if a man deserted his wife

directly after the wedding and disappeared, or where he

stated to other people after the ceremony that it had been

a farce because he had not intended to marry); and, (d)

that there is evidence from persons other than the parties

who can support and confirm the statement and

allegations made by the parties.

Partial Simulation.

Under this heading two further terms, namely

"condition" and "intention", must be considered. It is

possible for someone to marry with the intention of

excluding from his consent some vital element which is

involved in the contract of marriage (i.e. excluding one of

the vital elements of permanence, fidelity, and openness to

children). If one of those elements is excluded, then the

marriage would be null and void. An "intention" is a firm

and positive act of the will whereby one of the essential

elements is excluded; it is not a mere thought about the

possibility of some such exclusion but a firm and positive

act of will expressed before the marriage. On the other

hand, a "condition" is a clause or stipulation which

proposes that the essential obligations of marriage should

either be qualified or nullified under certain given

circumstances; for example a person may make a

condition that no consent is given to the marriage unless

the couple live in the house of the bride's parents; then,

unless such a condition is fulfilled, the union would be null

and void.

Therefore, although an intention must relate to some

essential element of the marriage contract for there to be

any possibility of invalidity, a condition can relate either

to an essential element of the marriage or to something

entirely unconnected with the marriage. In cases where an

intention or a condition has been made against one of the

essential properties of marriage it could be said that there

is some consent present but it is not sufficient. It is in this

sense that certain grounds come under the general

heading of "partial simulation". However, it must be

appreciated that if some essential element has been ruled

out of the consent then to all intents and purposes there is

not merely insufficient consent but, since the consent is

one and undivided, there is no consent at all to a

Christian marriage as such. A person either gives consent

which is whole and entire or he does not give proper

consent at all. This is why such a marriage can be

declared null and void.

The Code of Canon Law gives a short definition of

"consent", as "the act of will by which each party gives

and accepts a perpetual and exclusive right over the body

for acts which of themselves are suitable for the

generation of children" (Canon 1081, para. 2). This

definition incorporates the three basic elements which are,

a right to conjugal acts, a right which is perpetual and a

right which is exclusive. The exclusion of any or all of

these three elements from the marriage contract means

that the consent of the party concerned is defective and

the union would be null and void.

(i)

The Intention of Excluding The Right to Conjugal

Acts:

There are a number of different situations which are

covered by this statement. One situation is where a man

absolutely refuses his wife intercourse for some reason.

Another situation is where one of the parties insists that

intercourse should take place only within the "safe" period.

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