Invalidity of Marital Consent
ShareThe presumption of the Church favors marriage and the validity of the matrimonial consent given on the wedding day. However, consent may nonetheless be invalid, and thus the object of investigation by a marriage tribunal. The lack of consent of either spouse is sufficient to invalidate the marriage.
The reasons for the invalidity of consent can be grouped under these main causes: mental incapacity, ignorance, error about the person, error about marriage, fraud, knowledge of nullity, simulation, conditioned consent, force or grave fear.
Mental Incapacity
Canon 1095 gives three conditions that would make a person unable to contract marriage from mental incapacity.
1095. They are incapable of contracting marriage:
(1) who lack the sufficient use of reason;
(2) who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted;
(3) who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature.
1. Regarding the use of reason, the Church is saying that a person must have sufficient development of their faculties of intellect and will to be able to judge and to will a truly human act. This is the most basic level of intellectual maturity, but one not found in small children, or in adults who suffer from conditions which affect their powers of reasoning. It takes a pretty grave permanent or transitory condition, however, such as schizophrenia, or alcoholic stupor, to invalidate marriage for lack of reason.
2. Discretion refers to the capacity of intellect and will to specifically evaluate, decide and freely enter marriage. The discretion due any act is proportionate to the seriousness of the act. Marital consent, therefore, requires a proportionally serious maturity of discretion for it to be entered validly. It would be easy, however, to overestimate this, as if perfect discretion is need. The person after puberty is considered capable of marriage unless there is evidence to the contrary (c1096), and then the standard of "grave lack" must be met. As Pope John Paul II made clear in a 1987 address to the Roman Rota (the top marriage court of the Church), only incapacity, not just difficulty, is invalidating. An immature person, for example, may have difficulty but still have the capacity to undertake marriage and assume its essential obligations (a community of life that is exclusive and indissoluble, provides mutual help and support and is ordered to the procreation and education of children). A grossly immature person may indeed be incapable, but that must be proven with respect to marriage at the time of exchanging consent.
3. Finally, there can be a defect due to the inability to actually assume the essential obligations of marriage. A person may have sufficient reason, even sufficient discretion, but have a psychic condition that incapacitates them for fulfilling marriage's essential obligations (the conjugal act, the community of life and love, providing mutual help, and procreating and educating children). As noted by Pope John Paul II regarding the lack of reason, it must be an incapacity not just a difficulty, and it must be present at the time of exchanging consent. Examples of such conditions are psychosexual disorders and personality disorders.
Ignorance
Canon 1096
1. For matrimonial consent to be valid it is necessary that the contracting parties at least not be ignorant that marriage is a permanent consortium between a man and a woman which is ordered toward the procreation of offspring by means of some sexual cooperation.
2. Such ignorance is not presumed after puberty.
The person entering marriage must have actual basic knowledge of the object of marital consent. This need not be an educated or special knowledge of marriage, only that it entails,
a) a consortium, or partnership, to achieve certain goals
b) that it is a permanent partnership, as opposed to temporary or transient,
c) that it is between a man and a woman (persons of the opposite sex)
d) that it is ordered to the procreation of children (raising a family),
e) and it is achieved through some kind of sexual cooperation.
This knowledge is presumed, until proven otherwise, in anyone after puberty (which is presumed in females at age 14 and males at age 16; canon 1083).
Error about the Person
Canon 1097
1. Error concerning the person renders marriage invalid.
2. Error concerning a quality of a person, even if such error is the cause of the contract, does not invalidate matrimony unless this quality was directly and principally intended.
Since marital consent involves marrying a specific person, error about that person may rise to the level of invalidating the consent. This error must be factual, either about the person or the qualities of the person. Factual error about the person renders the consent invalid simply. Thus, when Jacob thought he was marrying Rachel, but in reality it was Leah (Gen. 29), the consent was invalid, though in later accepting the situation he effectively gave consent.
Error concerning the qualities of the person is more common, and more difficult to assess. By itself error about one or several qualities of a person does not invalidate consent, since one is marrying a person, not their qualities. However, consent can be conditioned upon a certain quality of the person, such that one marries for that quality directly and primarily. For example, a man may marry believing the woman to be the mother of his child, a fact which later proves erroneous. If that was the direct and primary reason he married her then his consent was conditioned by that quality. Or, a woman may believe she is marrying into a certain family, and that quality of her fiancé is the principal and direct reason for marrying him. The motive may be specious, but it determines her consent.
On the other hand, many qualities of a person are erroneously evaluated before marriage, or discovered only after marriage, yet one married the person. The fact that "had I only known I would not have married him," would not invalidate the consent. Someone determining their choice of a spouse by a quality obviously makes that evaluation and determination prior to marrying, so that future discoveries, however unfortunate, unless they touch the quality which was the direct and primary object of the consent, do not invalidate it.
Error about Marriage
Canon 1099. Error concerning the unity, indissolubility or sacramental dignity of matrimony does not vitiate matrimonial consent so long as it does not determine the will.
As in the case of error about the qualities of the person error about the properties of marriage does not invalidate consent unless the error conditions the will. The knowledge of marriage that is needed to marry is truly minimal, and as noted earlier is presumed in individuals who have reached puberty. However, there can nonetheless be error on some point which is primary to the consent. For example, a man from a polygamous society marries a Christian without realizing that he may not marry again, as he intends to do. He has a factual error regarding the true nature of marriage, one which is at the heart of his consent.
Fraud
Canon 1098. A person contracts invalidly who enters marriage deceived by fraud, perpetrated to obtain consent, concerning some quality of the other party which of its very nature can seriously disturb the partnership of conjugal life.
Deceit can invalidate consent by causing error in one of the parties to marriage. For this canon to apply there must be an attempt to deceive, either by the other party to marriage or a third party. The error must be of such a kind that it would seriously disturb the community of life which is rightly expected in marriage. A person who is not actually deceived, despite the attempt, or accepts the quality, cannot claim fraud. The error need not be the result of a positive fraud, but can be concealment of some quality which the other party has a right to know and which would either gravely disturb the marriage either objectively (venereal disease, grave illness, addictions to vice) or subjectively, according to the esteem placed on that quality by the deceived party (practicing Catholic, physical fitness). A person who conceals an objectively or subjectively grave quality deprives the other party of freedom in choosing to marry.
Knowledge or Opinion of Nullity
Canon 1100. The knowledge or opinion of the nullity of a marriage does not necessarily exclude matrimonial consent.
This canon is saying two things. First, it is saying that someone entering marriage knowing they are entering an invalid marriage does not by that knowledge or opinion alone exclude consent. For example, one can know that one is marrying invalidly, due to the existence of a previous marital bond, and yet will to marry the other person. The will to marry of the two parties is ineffective at creating the marital bond, however, because of one party's pre-existing bond (ligamen). When the obstacle of the previous bond is removed, such as by a declaration of nullity by the Church or the death of the first spouse, the consent to the new marriage is now unimpeded. Such marriages to be valid must still be convalidated by the bishop; however, it does not require a new act of consent.
Secondly, this canon is saying that sometimes knowledge of invalidity does indeed invalidate a marriage. For example, a man who marries knowing or believing that the marriage is invalid and not intending to marry ("after all its an invalid marriage before God and I can leave her if it doesn't work out"), does not give consent that can be convalidated by the Church if the obstacle is removed. To validly marry the new wife he would have to make a new and valid act of consent, by exchanging vows.
Simulation
Canon 1101
1. The internal consent of the mind is presumed to be in agreement with the words or signs employed in celebrating matrimony.
2. But if either or both parties through a positive act of the will should exclude marriage itself, some essential element or an essential property of marriage, it is invalidly contracted.
When two people stand up before God, the Church and society and exchange vows their words and actions are presumed to be truthful. Truth is the conformity of what the person says or does with what they know and will interiorly. When consent is given falsely and touches on one of the essential elements or properties of marriage that consent is invalid. The person is said to simulate consent.
Marriage itself. Total simulation occurs when one or both of the parties positively intends to not marry. This could be done in order to obtain the sexual rights of marriage, or even to obtain the civil effects of marriage (tax advantages, immigration visa, etc.).
An essential element.
Canon 1055
1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.
2. For this reason a matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact.
Partial simulation occurs when the will of one of the parties positively excludes some essential element of marriage, such as the sexual rights and duties, life in common, or the procreation and education of children.
An essential property.
Canon 1056. The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness in virtue of the sacrament.
Partial simulation also occurs when an essential property of marriage is positively excluded. Someone who intends to have other spouses or other sexual relations excludes unity. Those who intend to take advantage of divorce and remarriage if they so choose exclude indissolubility.
Conditioned Consent
Canon 1102
1. Marriage based on a condition concerning the future cannot be contracted validly.
2. Marriage based on a condition concerning the past or the present is valid or invalid, insofar as the subject matter of the condition exists or not.
3. The condition mentioned in part 2 cannot be placed licitly without the written permission of the local ordinary.
In stating what conditions may be placed on consent this canon also provides for what invalidates. As we have seen, error about a quality of the person which determines the will can invalidate. Likewise, the non-existence of conditions which were imposed on consent invalidates that consent. Previously the Church accepted future conditions on consent (e.g. a male heir), but under the new Code invalidates such conditions by positive law. Conditions concerning the past and present may be imposed with the written consent of the local ordinary (bishop). If that permission is not obtained the condition is valid, but illicit. An example of a present or past condition could be the existence of some quality, such as innocence of crime. A woman marries a man charged with a crime, but who asserts his innocence. She conditions her consent on him being in fact innocent. When he is convicted and sent to prison she obtains a decree of nullity.
A condition can also be made based on past and present behavior, even though it concerns the future. So, for example, a man marries a woman with a past drinking problem based on her promise to live soberly. If her promise was sincere and responsibly made, even though she ultimately breaks it, the marriage is valid. However, if it was insincere and given merely to obtain consent the marriage is invalid.
To be a valid condition it need not be expressed in the vows. However, it must be conveyed either implicitly or explicitly in words or actions. A woman who makes it known she just could not marry a man who was a drunkard has established a condition. His concealment of his drinking would, of course, involve fraud, as well as failing to live up to a condition for marital consent.
Since this is very complex area of the law recourse to the Ordinary is essential for placing an invalidating condition with certainty.
Force or Grave Fear
Canon 1103. A marriage is invalid if it is entered into due to force or grave fear inflicted from outside the person, even when inflicted unintentionally, which is of such a type that the person is compelled to choose matrimony in order to be free from it.
The necessity of determining the will is present in this canon as in so many others already discussed. To avoid physical or psychological force or coercion, a person chooses marriage. Such force would necessarily be grave, since it takes away the freedom to think and will rationally. This gravity could be objective (the threat of death) or subjective (emotional disturbance created by psychological manipulation). The threat must come from outside, as opposed to one's own conscience, and it must be the principal cause of consent. In the case of the reverential fear which children ought to have for their parents or a subordinate for a superior of another kind, to invalidate the consent there must be actual coercion of the person by the parent or superior which is experienced as such, the well-founded fear of earning their grave and lasting displeasure if marriage is refused and the grave fear must actually be the cause of the consent. An example would be the coerced marriage of an unwed mother by her parents, if the other conditions are met.
