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GAZETTE
SEPTEMBER 1978,
A third situation is where one of the parties insists upon
making use of contraceptives whenever intercourse takes
place and this insistence on contraceptives is quite clearly
and upon the person's own admission so as to avoid all
possibility of allowing the wife to have children. In each of
these three situations the marriage would be invalid
because one of the parties refused the right "to acts which
of themselves are suitable for the generation of children".
What is vital in the examination of any marriage case is
that the intention to exclude rights to proper conjugal acts
is shown to exist at the time of the wedding, because if the
intention was only formulated after the wedding has taken
place then the right would not be excluded from the
contract of marriage. It is only when it is so excluded
would the marriage be invalid. Also, a mere intention at
the time of the marriage of refusing the rights to such acts
already conferred would not render the union null and
void; for example, where contrary to the wife's wishes the
husband makes use of contraceptives on some or even
most occasions of intercourse.
(ii)
The Intention of Excluding The Indissolubility of
Marriage:
The consent given to the marriage is a consent
to a permanent and indissoluble union. Although a couple
may not even turn their minds to these essential properties
of marriage, nonetheless it is assumed that that is their
general intention. What would be required to have the
marriage declared null and void would be showing that
the person concerned had a specific and a clear and
formulated intention to exclude the property of
indissolubility from the marriage. Mere ignorance of the
fact that the marriage is permanent would not be
sufficient.
(iii) The Intention of Excluding Fidelity from the
Marriage:
If either the unity or fidelity of the marriage is
excluded by one of the parties then the marriage is invalid.
Amongst other things, the couple are presumed to exclude
as incompatible with a proper married relationship the
possibility of marriage to a third party during the lifetime
of the two partners, or to exclude illicit relationships with
other persons. The difficulty in this type of ground is the
possibility of a distinction between the right of fidelity
conferred or undertaken and the abuse of that right e.g. it
is possible to intend at the time of the marriage to be
faithful to one partner and yet during the marriage to
commit adultery. This is merely an example of the
violation of an obligation and does not indicate that the
obligation of fidelity has not been undertaken.
(iv)
Conditions:
As already stated, there can be two
general sorts of conditions, the one sort that affects the
right to conjugal acts or the permanence or fidelity of
marriage, and the other sort that has no connection with
these essential properties. Where the conditions are
related to the essential properties of marriage they are
dealt with in the same way as intentions against those
properties: e
.g.
in a case where someone formulated the
intention, "I intend to exclude the property of permanence
frommymarriage", he could also formulate thecondition "I
ammarrying on the condition that I can terminate this union
if the marriage breaks down".
There can, however, be other kinds of conditions which
are not connected with these properties. The Code of
Canon Law states that three types of conditions are
presumed not to have been seriously made unless the
contrary is shown: (a) a future necessary condition (e.g. I
will marry you if the sun rises to-morrow); (b) a future
immoral condition (e.g. I will marry you if you will poison
your mother); and, (c) a condition which makes the
marriage consent depend on an impossibility. Generally,
therefore, the rule is that if a condition is necessary,
immoral or impossible it is regarded as having no effect
whatsoever upon the marriage consent without very clear
proof to the contrary.
If, however, a condition which is quite harmless and
certainly possible of fulfilment is placed as a
sine qua non
to
the marriage consent and the marriage consent is
dependant upon the realisation of that condition prior to
such consent coming into existence (e.g. a person could
say that he marries on the condition that all the children
should be baptised and brought up as Catholics) then if
this condition is not fulfilled the marriage is null and void.
It will be appreciated that if such a condition is attached
to the person's consent this has the effect of suspending
the marriage i.e. the marriage does not legally come about
until such time as the condition has been fulfilled.
It is for this reason that the Church legislates against
such a condition and why a priest who is to conduct a
ceremony of marriage is instructed to discover whether
the parties are entering marriage without conditions.
C.
Consent Which is Forced
In a case where "force and fear" is alleged it is still
assumed that consent has been given. What has to be
established is whether the force and fear was such as to
remove a person's freedom in contracting a marriage. The
Code of Canon Law (c. 1087) provides that a marriage is
invalid on the grounds of force and fear when such force
and fear was unjustly caused by an external agent, to free
himself from which the person was compelled to choose
the escape offered by marriage. Nowadays, it is highly
unlikely that the marriage could take place in
circumstances where a person is physically forced to go
to the altar (e.g. at gunpoint), but there are other
circumstances in which the force is not physical but
rather a moral compulsion and where to all outward
appearances the person concerned goes to the marriage
quite freely. Such moral compulsion or force exercises
upon the person concerned an influence which is spoken
of as fear and is the reason why the grounds for this type
of case are always stated as "force and fear".
For this ground to annul the marriage the fear must be
grave. Fear is considered to be "absolutely grave" if the
"evil that is threatened or feared is considered by
everyone as an absolutely grave harm"; for example,
death or mutilation, or serious loss of good name or
infamy. On the other hand, a much lesser degree of fear
existing on someone else might have, to all intents and
purposes, exactly the same result as absolutely grave fear.
This latter is often called "relatively grave" fear. When a
marriage tribunal is considering such a ground the gravity
of the fear and the condition, temperament or character of
the person concerned must all be carefully studied. One
indication of the gravity of the fear is to see whether the
person concerned took any steps, however ineffectual, to
liberate himself from the moral pressure exerted. There is
another form of fear, described as "reverential" fear, which
exists when one fears the indignation of a parent or
superior or guardian even though there may be no blows
or threats. Clearly, this type of fear is fairly slight, but if
in fact it amounts, for a particular person, to relatively
grave fear, and, coming from an external source, is
unjustly caused and leaves the person no liberty of choice
but to marry, then it would invalidate the marriage.
The fear must be caused by an external agent as
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