Mar 15, 2016

Marriage Law Revisited — Part II

Editor’s Note: This article is the second of two parts on the canonical components of marriage law. See Marriage Law Revisited — Part I here.

What is an “annulment”?

First, there is no such term as “annulment” appearing in the official documents of the Church on the matter. It is an unfortunate popular term that has brought confusion to what is really happening. The more precise term is a “declaration of nullity,” that is, an official declaration by the appropriate authority in the Church that the act of marrying between a specific man and woman was an invalid act of marrying due to a lack or defect regarding the required capacity, consent, or (for Catholic marriages) canonical form necessary to establish marriage.

It is important to keep in mind that the process of investigation has one and only one goal – to determine whether the act of marrying was valid or not. Note that it is not for determining sacramentality (see Part I), nor is it to assess fault, nor is it an instrument to be used for the purpose of healing or reconciliation with the Church. While these can be elements that surface during the process, the sole purpose is to see if it is possible to arrive at moral certainty (cf. canon 1608) that the required capacity, consent, or canonical form was lacking or defective in the act of marrying. Where the judge(s) can arrive at moral certainty for this, a declaration is to be issued. Where it is not possible, regardless of how one may feel about the parties or their situations, the presumption of the validity of the marriage must be upheld (cf. canon 1060).

Thus, the procedure is a fact-finding procedure and not an adversarial one. While some have tried to characterize the declaration of nullity procedure as an expression of “mercy,” it can only be an instrument of mercy insofar as it is based on truth. Where this is forgotten, whether by those outside or inside the Church, sometimes even by canonists or those who work in Matrimonial Tribunals, the result is confusion and frustration and the temptation to see the Church’s procedure as simply “Catholic divorce.” It remains to be seen whether the recent changes to the declaration of nullity procedures will assist in the recovery of a proper understanding of the Church’s process or add to its misunderstanding.

What makes a marriage valid or invalid?

There are two categories of things that are required to make any act of marrying valid – namely, the parties must have the requisite capacity to enter into marriage and the parties must exchange the requisite consent. For Catholic marriages, a third requirement of marrying according to canonical form is also required. Each of these requirements have certain specific, necessary elements to them that must be present. According to canon 10, the elements that affect validity are expressly established in the CIC in order to leave no doubt as to which elements affect validity.

Unfortunately, many see marriage preparation and pre-marital paperwork as “hoops” to jumped through, not realizing that these are designed to assure that the elements of capacity, consent, canonical form, and other pastoral issues are properly met so that there can be a valid, licit, and fruitful celebration of marriage by the parties (cf. canon 1066).

What are the elements of “capacity” that can impede a valid act of marrying?

In order to marry validly, a person must have the proper capacity to marry. “Diriment impediments” are impediments that render a person unqualified to contract marriage validly (canon 1073). An exhaustive list of these is found in canons 1083-1094, which also contain more specific explanations of each of them and their invalidating elements.

The specific diriment impediments that make a person lack the capacity to marry validly are: insufficient age, impotence (note that “sterility” is not an impediment), prior bond (currently already married), disparity of worship (a baptized Catholic cannot marry a non-baptized person), holy orders, public perpetual vow of chastity in a religious institute, abduction, crime (killing or cooperation in the killing of a spouse in order to marry), consanguinity (forbidding marriage between family members in the direct line of descent or up to and including first cousins in the collateral line of relations), affinity (in-laws) in the direct line, public propriety (notorious concubinage), adoption, and, prior to the 1983 CIC, formal spiritual relationship between the parties such as a godparent and godchild. (Spiritual relationship is still an impediment for Eastern Rite Catholics, cf. Code of Canons of the Eastern Churches (CCEC), canon 811).

Note that four of these, because they are considered to be of the natural law of marriage, apply to all persons, whether a baptized Catholic or not, and cannot be dispensed (canon 86). These include: being below the age of reason, impotence, prior bond, and certain degrees of consanguinity (e.g. a parent can never be dispensed to marry a child). All the other diriment impediments, because they are ecclesiastical laws issued out of the pastoral prudence of the Church, can be dispensed in a particular case by the discretion of the proper ecclesiastical authority under the conditions of canons 85-87. That is why, for example, a Catholic who wishes to marry a non-baptized person – normally invalid under the diriment impediment of disparity of worship (canon 1086) – must obtain a dispensation by the proper ecclesiastical authority in order to marry validly, since this impediment is of ecclesiastical and not natural law. Contrarily, since it is of the natural law of marriage that marriage involves only one man and one woman, no ecclesiastical authority can ever dispense a person who is already married to marry an additional other person (prior bond, cf. canons 1085 and 86). In the same way, no authority can ever dispense someone to marry another person of the same sex.

What are the elements of “consent” that can impede a valid act of marrying?

According to the natural law of marriage, consent by the parties is the act by which marriage is established (canon 1057). As in capacity, there are elements that can impede valid consent. Found in canons 1095-1103, these are: lack of sufficient use of reason, possessing a grave defect of discretion of judgment concerning matrimonial rights and duties (i.e., a psychic (commonly referred to as “mental”) defect rendering a person incapable to discern or choose marriage), psychic inability to assume the obligations of marriage, ignorance of certain essential elements of marriage (as listed in canon 1096), error of person, error of quality of person principally intended, error of law determining the will, dolus (“trickery”), total simulation of the marriage consent, partial simulation of marriage consent (i.e., having an active intention against children, fidelity, permanence, or the good of the spouse in this particular marriage), marrying under condition, force, or grave fear. Like diriment impediments, each of these has various requirements that go with them in order to determine if that certain defect of consent is present. Because consent is considered to be of the natural law of marriage, these apply to all persons, whether Catholic or not. Consent cannot be dispensed.

What are the elements of “canonical form” that can impede a valid act of marrying?

Since the time of the Council of Trent, the Church has also required that, for validity, all Latin Catholic marriages must be done according to “canonical form.” (Eastern Catholic canon law contains slightly different requirements for canonical form, cf. CCEC, canon 828ff). While there used to be a canonical exception for those who left the Church by a formal act, numerous difficulties encountered over the years in assessing what exactly constituted a sufficient, formal act of defection from the Church led Pope Benedict XVI in October of 2009 to declare in “Omnium in mentem” that canonical form binds all Catholics regardless of whether one has left the Church or not – i.e., once a Catholic, a person is always bound to marry according to canonical form, regardless. (Canon 1127 addresses the special case of a Catholic marrying a non-Catholic party of an Eastern Rite).

Latin Catholic canonical form requires that a Latin Catholic marry in the active presence of a validly deputed Catholic minister (priest or deacon) with faculty or permission to do so, who actively asks for and receives the consent of the parties in the name of the Church, and in the presence of two witnesses (cf. canons 1108 and 1116).

The Rite of Marriage is the liturgical expression of the exchange of consent and contains within it the elements to manifest the consent of the parties and the canonical form of the Church (cf. canons 1119-1120).

While some notable canon lawyers have speculated on whether the time has come to drop the requirement of Catholics marrying according to canonical form, the ecclesiastical law of nearly half a millenium requiring Catholics to marry according to canonical form remains for validity since the Church still sees it as a serious pastoral advantage to involve the pastoral care and representation of the wider Church in the marriage of her members. In addition, sacramental marriage is a liturgical act and therefore it is appropriate that it be celebrated in the public liturgy of the Church. These and other reasons are cited in CCC 1631.

Nevertheless, under certain serious circumstances, canonical form can be dispensed (canons 1127 §§2-3 and 1079) such as, for example, situations involving possible animosity from extended, non-Catholic family members.

What about other elements, such as the place of the marriage celebration?

While marrying according to canonical form affects the validity of marriage, the place of where the marriage is celebrated is not part of canonical form and thus does not affect the validity of marriage. Nevertheless, because the place of marriage is incredibly important to the liceity of the celebration of marriage, the CIC explicitly regulates where marriages can take place (canons 1118-1120). The place of marriage serves as an important reminder that marriage is not simply a personal endeavor but rather is a public institution that impacts the well-being of both human and Christian society (cf. CCC 1603; GS 47 §1), and, in many cases, is also a sacrament which by its nature is public (cf. CCC 1069-1071, 1134, 1140).

It should be noted that the popular phrase “getting married in the Church” only confuses the issue of canonical form and marrying in a Catholic church building or chapel (place of marriage). Because of this equivocal use of the term “church,” the use of this popular phrase should be avoided. More appropriately phrased, what is meant is “getting married validly according to canonical form” or “getting married validly according to the laws of the Church.”

What happens when someone gets a marriage “blessed” in the Church?

Having a marriage “blessed” in the Church is also another unfortunate popular term that only confuses what is truly going on. What is happening is a “convalidation” (cf. canons 1156- 1160). Sometimes it’s the case that an act of marrying was invalid due to an impediment that ceases or due to a lack or defect of canonical form. Though an exchange of consent was attempted – the couple attempted to marry – nonetheless, the act of marrying was invalid. In most cases, it is necessary that the exchange of consent now be done again according to canonical form in order for the act of marrying to be now a valid one. In this sense, it is contracting marriage anew (cf. canon 1160). Since it is to be done according to canonical form, the Rite of Marriage is used.

What is a “radical sanation”?

In certain circumstances, a marriage invalid due to an invalid act of marrying can be granted a “radical sanation,” that is, a convalidation without the requirement of the renewal of consent (canons 1161-1165). The competent authority to grant this is usually the diocesan bishop (canon 1165 §2) who has the discretion to decide if a regular “convalidation” cannot be done due to some serious reason. Various other conditions must be present as listed in canons 1162-1163 such as the absence of any natural law impediments. Serious reasons for a diocesan bishop to grant a radical sanation could include situations where a nonCatholic party refuses to go through the convalidation ceremony, refuses to renew their consent, or harbors animosity towards the Catholic Church.

A radical sanation, if granted, includes a dispensation of any other dispensable impediments and has retroactive canonical effects.


The Church’s law on marriage, both canonical and liturgical, are products of centuries of her lived, pastoral experience. Quite contrary to the “pharisaical” norms that obscure the beauty of marriage and go soft on it in a supposed pastoral sensitivity that runs against the law of God (cf. Mt 19:1-9), the Church’s matrimonial laws carry within them a wisdom developed over the ages. This wisdom seeks to protect the sanctity of marriage and to let its sublime mystery shine as a witness to the world. Oftentimes, the Church’s laws on marriage gently yet firmly challenge cultural drifts that have resulted from the fallen state of humanity, felt keenly in the conjugal relationship between man and woman. The Christian faithful in the Body of Christ, the Church, are especially called to witness to this great mystery of marriage. By recovering a much-needed clarity of understanding of the Church’s teachings and laws on marriage, those in the Body of Christ, especially those called to minister to marriage and family life, can greatly help to preserve the sanctity of marriage, defend its validity, and cultivate its growth for the good of the family, the Church, and the world.

Benedict Nguyen is a canon and civil lawyer and serves as the Canonical Counsel & Theological Adviser for the Diocese of Corpus Christi (Texas). He also serves as an adjunct professor for the Avila Institute for Spiritual Formation.

Benedict Nguyen

Benedict Nguyen is a canon and civil lawyer and serves as the Canonical Counsel & Theological Adviser for the Diocese of Corpus Christi (Texas). He also serves as an adjunct professor for the Avila Institute for Spiritual Formation.