Canon Law Marriage - Extra notes PDF

Preview

Summary

Extra notes...

Description

Canon Law Marriage The three requirements for a valid marriage (if any fail then the marriage will be invalid) are: 1.

Freedom in giving consent o

Consent will be null if given because of...   

2.

Force of grave fear Defect of internal freedom Fraud

Genuine conjugal intentionality o

Conjugal intentionality will be null in cases of   

3.

Error Condition Exclusion

Capacity to marry o

Capacity to marry will be null if a party to the marriage had    

Insufficient use of reason Grave defect of discretion of judgment The inability to assume the essential obligation of marriage Ignorance

Marriage Impediments (if the any of the below factors are present, a marriage will be also be considered either invalid or illicit)  Invalid/void = failure to meet the requirements to enter validly into matrimony and thus a marriage never existed  Illicit = against the law but valid nonetheless         

Consanguinity, affinity, public propriety and adoption (invalid/void) Age (invalid/void) Orders (invalid/void) Disparity of cult (invalid/void) Vow of Chastity (illicit) Abduction (invalid/void) Crime/ uxoricide (invalid/void) Prior bond (invalid/void) Impotence (invalid/void)

1)

Invalidating consent a.

Force of grave fear i.

Serious pressures by third parties that induce accepting an unwanted marriage for fear of suffering greater evils

ii.

Can. 1103 prescribes the invalidity of marriage celebrated, not only from violence but also from gave fear from the outside influences, even unintentionally, in order to free the person from those things that make them see themselves constrained to marry

iii.

Three factors that need to be considered are gravity, extrinsic nature, and unavoidability of the fear (Can. 1103)

iv.

b.

1.

Gravity  evaluate the objectivity of the evil or threat by referring to the person who exerts the compulsion and the one who suffers it

2.

Extrinsic nature  can fear be inferred i.e suspicio metus

3.

Unavoidability  the invalidating fear must needle the perception of marriage in the mind of those who suffer it as the only alternative to avoid evil

Specific conditions of age, economic autonomy, or other factors may be relevant to establish the real possibility of the victim of the fear of avoiding the evil that would fall on him rejecting marriage

Defect of internal freedom

c.

2)

i.

The faithful have the freedom to choose their state of life (Can. 219)

ii.

Lacking inner freedom the person himself becomes the sole author of his own fear, which presents itself to him with such force that it prevents him from adequate deliberation and self determination

iii.

This head takes its power from Can. 1095 n 2 (grave lack of discretion of judgment) since the grave limitation of internal freedom in choosing is an integral element of deliberative inability

iv.

Internal pressures mean those that the contractor exercises on himself, imposing on himself the marriage for reasons that are not born out of love but rather from psychological weakness at that given moment like to resolve an unplanned pregnancy, or for the fear of remaining alone

Fraud i.

Can. 1098 established that whoever intentionally contracts a deceiving marriage with fraud, aimed at obtaining consent invalidly contracts said marriage

ii.

Done through either misrepresentation or concealment of fundamental information

iii.

Whether performed in an active form or in a form of omission, presents intentionality as the most decisive factor since the deception is posed against one of the spouses in order to obtain their consent

iv.

Everyone has an obligation to dutifully inform their future spouse about aspects of themselves that have an objective projection on the communion of married life

Invalidating conjugal intentionality a.

b.

Error i.

Error of person = to enter a valid marriage, one must know the person he or she is marrying. In other words, marital consent is exchanged with a specific man or woman and it is essential to have true knowledge of who that person is. If one spouse made a substantial error in judgment concerning the true identity of the intended spouse, or in other words married the wrong person, this ground could be considered. The error in question is not about details of personality or behaviour, but a serious error about the identity of the other spouse. Use of this ground is extremely rare in this country and culture (Can 1097 n 1)

ii.

Error about a quality of a person = To enter a valid marriage, one must know the essential qualities of the person he or she is marrying. If, at the time of marriage, one spouse was mistaken about a quality directly and principally intended in the other spouse (almost as a condition for marriage) then this ground could be considered. This ground might apply if you or your former spouse intended to marry someone who possessed a certain quality (perhaps of a moral, social, physical, religious, psychological, or legal nature) and the primary reason for entering this marriage was the belief that the intended spouse possessed that quality. The intended quality must be of such a magnitude that without it, the person would not have married the other (Canon 1097 n 2) .

Condition i.

The current code states that marriage cannot be validly contracted because of conditions, suggests a lack of solidity in the relationship and are a result of doubts, or are manifestation of a lack in willingness to engage married life

ii.

Future condition  To enter a valid marriage, a person must have no reservation or future condition. The spouses are required to give total and free consent to marry one another. If a person enters marriage while waiting to see if in the future a certain condition will be fulfilled or not (e.g., that one’s spouse will change religions in the future, or enter a certain profession, or will bear a child) the marriage was invalid. Often a condition is attached because of doubts about the intended spouse. This ground can be considered if one or both of the spouses entered marriage with an expressed condition based on some event in the future (can 1102 n 1) Did either you or your former spouse attach any condition concerning the future to your marriage (for instance, I will marry you on the condition that: …we will always live in this area,.. you will complete your medical degree, …you will become Catholic, …we will have a child together”)? Did you sign a prenuptial agreement, thinking that divorce was an option if a future condition were not met? If you answered yes to either question, would the marriage have been called off if the other spouse did not agree to the condition? Did you marry with doubts about your former spouse which caused you to attach a condition to the marriage working out in the future? Did the condition remain unfulfilled, and if so, did this lead to the final separation or divorce?

iii.

Past Condition  To enter a valid marriage, a person must give free and unconditional consent. A past condition concerns the existence or non-existence of a fact, typically concerning the spouse’s past. Placing such a past condition on the marriage raises serious questions, and it invalidates marriage when it is proven that the condition, upon which the marriage decision depended, was not fulfilled at the time of marriage. Often, a condition is place because of doubts concerning the intended spouse. This ground may be considered when one or both spouses entered the marriage with an expressed condition based on something from the past (can 1102 n 2)

Did either you or your former spouse attach any condition concerning the past to your marriage (for instance, “I will marry you on the condition that: …you were never married before, …you have finished college, …you were never in jail, …you never abused drugs before”)? Did you sign a pre-nuptial agreement or any other document regarding a past condition? Would the marriage have been called off if the condition weren’t fulfilled? Did you marry with any doubts about your former spouse that caused you to place a condition? Did the condition remain unfulfilled, and if so, was this a reason for the separation? Present Condition  To enter a valid marriage, a person must give free and unconditional consent. A present condition concerns the existence or non-existence of a fact or circumstance in the present time (e.g., a medical condition, career, a character or trait). Often, a condition is placed because of doubts concerning the intended spouse. Placing such a condition on marriage raises serious questions, and it invalidates marriage when it is proven that the condition, upon which the marriage decision depended, was not fulfilled at the time the marriage was entered. This ground may be considered when one or both spouses entered the marriage with an expressed condition based on something present or absent at the time of the wedding (Can 1102 n 2) Did either you or your former spouse attach any condition concerning the present to your marriage (for example, I will marry you on the condition that: …you do not have a sexually-transmitted disease, …you are the father/mother of my child, …you are virgin, …you do not abused drugs or alcohol, …you are free of debt”)? Did you sign a pre-nuptial agreement or any other document regarding this condition for marriage? Did you marry with doubts about your former spouse that caused you to place a condition? Would the marriage have been called off is the condition had been discovered to be unmet or false? Did the condition remain unfulfilled, and if so, was this a reason for the separation or divorce

iv.

c.

3)

Exclusions i.

Marriage is accessed for instrumental purposes or for some goal other than love, unity and the good of the spouses

ii.

The party or parties involved entered the marriage and excluded essential elements

iii.

Total simulation of marriage  To simulate consent means to say one thing externally, but to intend something quite different internally. Total simulation of marriage means that one or both spouses, at the time of marriage, did not intend to enter a real marriage. Instead, something quite different was intended. This ground may be considered if one or both spouses “pretended” to marry, and not intend to enter a genuine, lasting marriage. Was this an arranged marriage, that is, you and your former spouse were “told” to marry by someone else such as your parents? Did you and your former spouse agree to marry for some reason other than being in love and wanting to marry one another? (Can 1101)

iv.

Intention against the good of permanence  A valid marriage includes three essential “goods” — children, fidelity and permanence. If one or both spouses entered marriage with the intention to exclude the lifelong permanence of marriage, this ground can be considered. Marriage, by its very nature, is a permanent partnership which cannot be broken or dissolved by the spouses themselves. The marriage is invalid if one enters it with the intention to make the marriage only temporary, to keep divorce and remarriage as an option, or reserving the right to decide at any time to end the marriage (Can 1101)

v.

Condition Against the good of children  To enter a valid marriage, a person must place no conditions or limits on the essential elements of marriage, which includes a radical openness to children. This ground can be considered if one or both the spouses placed a condition on child-bearing, such as a limit on the number of children to be born in the marriage. The condition must be present from the beginning of the marriage, and measures must have been taken to ensure that the condition was, in fact, met (can 1101)

vi.

Intention against the good of fidelity  A Valid Marriage includes three essential “good”– children, fidelity and permanence. If one or both spouses entered marriage with the intention to exclude absolute fidelity, this ground can be considered. Fidelity or exclusivity in marriage means to have only one’s intended spouse as a sexual partner for life. Absolute fidelity prohibits openness to any other sexual relationships. When one enters marriage with the intention of excluding such absolute fidelity, (in other words remaining open to the possibility or thinking that they may choose whether to have other sexual partners), then the marriage is invalid. It is important to note that what invalidates the marriage is the intention present from the beginning, to permit infidelity – not actual infidelity. Adultery itself is not a ground of nullity (can 1101)

Invalidating Capacity to marry a.

Insufficient use of reason i. ii. iii.

The contractor accesses the celebration in a mental state that is not up to the gravity of the act (can 1095, n.1) Such incapacity may derive from a permanent psychological condition or temporary one The cognitive sphere is taken into consideration, meaning the intellectual faculty of the person: the act of consensual will is in any case necessary compromise, since an adequate cognition is lacking; consent then cannot be considered a proper human act, meaning a voluntary, free and responsible act

b.

Grave defect of discretion of judgment i.

c.

To enter a valid marriage, a person must have use of sound reason and mature judgment. This means that the person is making a prudent and free decision, after careful judgment, to enter marriage with a particular person, and that the decision is not impulsive or without forethought. If one or both spouses either lacked sufficient knowledge of marriage or failed to exercise mature judgment in choosing to marry, this ground can be considered. Because it requires a grave lack of discretion of judgment, this ground may be difficult to prove (can 1095 n 2).

Ignorance i.

Lack of preparation and psychological capacity to face the complexity of the conjugal option (Can 1096)

ii.

To enter a valid marriage, a person must have some basic knowledge (i.e., not be ignorant) of what marriage is all about. A necessary element of that knowledge is to know that marriage is a permanent partnership between a man and a woman. If a person truly has no knowledge that marriage is such a partnership, because of tragic or extremely dysfunctional circumstances in his or her personal or family background, this ground may apply.

iii.

To enter a valid marriage, a person must have some basic knowledge (i.e., not be ignorant) of what marriage is all about. A necessary element of that knowledge is to know that marriage by its nature involves openness to children by means of sexual cooperation between the spouses. Although such ignorance is not presumed in persons beyond the age of puberty, this ground may be considered if one or both spouses were truly ignorant of this fact.

The Marriage Impediments (preventing marriage or invalidating it) 1)

Consanguinity, affinity, public propriety and adoption (non-dispensable impediment) a.

Consanguinity i. ii.

b.

Affinity i.

c.

2)

3)

Parties are related by marriage in a prohibited degree (Can 1092) (dispensable by the bishop)

Public Propriety

i.

d.

Parties are closely related by blood (Can 1091 n 1) Consanguinity is a fifty-dollar word that means blood relationship. In the direct line (fatherdaughter, grandfather-granddaughter, mother-son, grandmother-grandson), marriage is never allowed. There are also non-direct lines of relationship; there are stringent rules governing these, too. Generally speaking, marriage is not permitted by those up to (and including) “the fourth-degree of consanguinity” (or as it might be put in common English: you can’t marry your first cousin or anyone closer in blood relation. In terms of these non-direct lines, the Church breaks it down this way: the second degree of consanguinity refers to brothers/sisters; the third degree refers to uncles/nieces and aunts/nephews; and the fourth-degree refers to first cousins. Beyond this point marriage is permissible.

The parties are "related" by notorious concubinage. (Example: A man and a woman live together without marrying; this impediment prevents the man marrying the woman's mother or daughter–but not the woman herself–even if the cohabiting relationship has ended or the woman has died (Can 1093). (dispensable by the bishop)

Adoption i.

The parties are related by adoption (Can 1094) (dispensable by the bishop)

i.

The new code has maintained the same requirements for age of the engaged, meaning fourteen years for the woman and sixteen for the man (can 1083) (dispensable by the bishop)

ii.

Age is calculated according to can 203

iii.

Still possible to validate a marriage if age is not met later on, either through the renewal of consent (can 1156 – 1159) or with the root remediation without renewal of consent, provided this persists ( can 1161 – 1165)

Age

Orders i.

Found in can 1087

4)

6)

iv.

The impediment is effective only if the ordination was validly conferred, but the declaration of nullity of the ordination is possible only through a canonical process (can 1708 – 1712)

v.

The sacred order is a perpetual impediment (can 290) and does not end with the mere loss of the clerical status resulting from the penalty of dismissal, but the dispensation of celibacy can be obtained, reserved only to the Roman Pontiff (can 1078) (can be dispensed but only through the permission of the pope)

b.

The impediment can be dispensed by the ordinary, can 1125, can 1126, if the following conditions are met (dispensable by the bishop) : i.

The catholic party promises to preserve the faith

ii.

Catholic party will do the utmost to educate the offspring of the union in the ways of the Catholic faith and informing the non-Catholic party of this intention

Mixed marriage is no longer considered an impediment. A catholic and non-catholic baptised can marry and it will be considered the fulfilment of a sacrament. A prior license issued by the ordinary is required to celebrate the marriage licitly.

Vow of Chastity a.

The code adopts the perpetuity and the public character of the vow as the only criterion (can 1192) (can be dispensed by the pope)

b.

The vow issued in a religious institute gives rise to the impediment so that consecrated persons in secular institutions (can 710), members of societies of apostolic life (can 731) and hermits (can 603) are not bound by this impediment

Abduction One of the parties has been abducted with a view of contracting marriage can 1089 (can be dispensed with by the bishop)

Crime or Uxoricide Impediment arises due to the (direct or complacent) imputation of the crime of having killed one’s own spouse or that of the person with whom one intends to contact a new union (can 1090) (can be dispensed by the pope)

Prior Bond a.

9)

Scope of the impediment concerns the existing orders in the current disci...