Roman Rota, Decision coram Yaacoub, “Defective Convalidation,” 19 July 2007.
PROCEDURES TO BE FOLLOWED IN DECLARATIONS OF INVALID CONVALIDATIONA large number of Tribunals has reported that the Apostolic Signatura has over the past year or so been cautioning Tribunals about the way in which such cases should be adjudicated.
When the officers of the CLSA visited the Rota in Rome in May 2008, they asked for and were provided with a Definitive Sentence for publication which is of considerable interest. In his letter forwarding the sentence, Rev. Paul Counce noted: “It is the decision which flowed from a concession of the favor of new hearing by the Signatura. The 2005 decree of the latter was published in Periodica, and fundamentally objected to the way in which the Rota and subordinate Tribunals had been handling cases on the grounds of Defective Convalidation. The publication of the decree was accompanied by voluminous commentary thereon (80+ pages) by now-Cardinal Navarrete.”
Father Augustine Mendonça, who is presenting a seminar on this topic at the 2008 CLSA convention, has prepared the following translation and sanitized the specific references to render them anonymous. The Latin text of the In Iure section is included immediately after the English translation. At the end of the Sentence we are also printing a sample of the letters sent from the Signatura to a number of Bishops.
Defective Convalidation Decision coram Yaacoub19 July 2007
1 — The Facts1. Brian Cabrini, the petitioner in the case, and Juliana Brown, the respondent, both Catholics, who had received accurate formation in the true faith, attempted marriage before a civil magistrate, that is to say, before a “Justice of the Peace.”
Three months later, after completing also the canonical investigation including even the pastoral preparation of the parties to properly and fruitfully contract marriage, the parties finally manifested their conjugal consent in the canonical rite before the Associate Pastor of their parish of St. Helena, which was situated within the territory of the diocese of Antioch. The officiating priest was endowed with the necessary faculties. And one cannot deny that the parties at the time were deeply in sincere and unconditional love for each other.
2. Already during their studies at the college, which was situated in the city of Antioch, the two young people developed first a friendly and then a love relationship. The parties were so physically attracted toward each other that they indulged in sexual relationship which resulted in the woman’s pregnancy. Following this they entered into a civil marriage. Then, in order not to remain in a sinful state, they sought a canonical marriage.
The marriage was gifted with several children. The partnership of conjugal union lasted a long time, however not without problems, dissensions, arguments and marital difficulties between the parties, and with the passage of time these problems became worse, which finally led to their definitive separation. Seven years later the petitioner obtained a civil divorce.
3. Because there was no possibility of reconciliation between the parties, the petitioner presented the introductory libellus before the tribunal of Antioch, competent by reason of the place of marriage, by which he sought a declaration of nullity of his marriage with the respondent due to consensual incapacity on his own part.
In order to avoid any suspicion because of the condition of the petitioner, by Decree of the Supreme Tribunal of the Apostolic Signatura, the case was transferred to the tribunal of Smyrna to be judged in the first grade of jurisdiction, where a judicial college was constituted and the libellus was admitted. Then the doubt was determined by decree according to the formula: “Whether the marriage of Brian Cabrini and Juliana Brown was null on the ground of lack of discretion of judgment on the part of the Petitioner or Defective convalidation on the part of the Petitioner or defective convalidation on the part of the Respondent.”
When the instruction of the case was completed through a judicial examination of the parties and of twelve witnesses who were introduced, as well as through the acquisition of pertinent documents, the acts were published. Then, after obtaining the observations both of the defender of the bond and of the parties as well as of the advocates of the parties, the first instance tribunal that was approached pronounced a decision partly in favor of the petitioner’s wishes, that is, “There is no proof of nullity of marriage in the case either due to defect of discretion of judgment in the petitioner or due to defect of convalidation on his part. On the other hand, there is proof of nullity of marriage due to defect of convalidation of consent on the respondent’s part.
4. After the sentence was published and the parties were notified of it, the respondent raised a complaint of nullity against this sentence before the first instance tribunal of Smyrna. The same tribunal by decree upheld the validity of the sentence of first instance.
Then the woman herself appealed to Our Apostolic Tribunal against the affirmative sentence of first instance, that is, against the ground of invalid convalidation of consent on the part of the woman respondent. After fulfilling the requirements of law, the Fathers of the Turnus, and having considered the votum of the defender of the bond, admitted the case to an ordinary examination.
The Turnus by decree determined the doubt on the only ground that had received the affirmative decision according to the following formula: “Whether there is proof of nullity of marriage in the case due to defect of the new act of the will on the part of the woman respondent in convalidating the marriage (can. 1156, §2; 1157 CIC).
After the new Ponens was appointed in the place of the preceding one, a supplementary instruction of the case was carried out. After the acts were published and the observations of the defender of the bond and briefs of the advocates of the parties were exchanged, the Rotal Turnus issued an affirmative decision, that is, “There is proof of nullity of marriage in the case due to a defect of convalidation of consent on the part of the woman respondent,” thus fully confirming the appealed decision of Smyrna.
5. The defender of the bond was not satisfied with this. He presented a reasoned recourse to obtain a new proposition of the case. After the briefs of the advocates of the parties as well as of the defender of the bond were presented, the Rotal Turnus by decree rejected the requested new proposition of the case.
However, the defender himself placed recourse against the said Rotal decree before the Supreme Tribunal of the Apostolic Signatura to obtain a new proposal of the case. Therefore, through the letter of the Dean the acts were transmitted to the Supreme Tribunal of the Apostolic Signatura, which, after carefully weighing everything required by law, by decree stated: “A new proposition of the cause in the case must be granted and is in fact granted.”
By order of the Dean addressed to the Ponens, after this decree was communicated to the defender of the bond and to the advocates, a Turnus was constituted by the decree of the same Dean to adjudicate the cause anew.
The doubt was determined by decree under the following formula: “Whether there is proof of nullity of marriage in the case on the ground of defect of convalidation of matrimonial consent on the part of the woman respondent.” And after having received the written defenses of the parties, similarly having obtained the observations of the depute defender of the bond, and after these have been reviewed by the principal defender of the bond, we ought to respond to this doubt.
2 — The LawDefective Convalidation
6. The consent of the parties legitimately manifested between persons qualified by law, makes marriage; no human power is able to supply it. This principle must be upheld in light of the prescript of both the old Code of Canon Law (c. 1081, §1) and the present Code (c. 1057, §1). Paul VI said the following concerning matrimonial consent: “In virtue of this well-known principle, a marriage exists at the moment when the spouses express a juridically valid matrimonial consent. ... Consequently, once the consent has produced its juridical effect, it automatically becomes irrevocable and lacks power to destroy what it created” (Paul VI, Allocution to the Roman Rota, 9 February 1976, in AAS, 68 , p. 206).
If one of those who marry is a baptized Catholic, the conjugal consent must be presented according to the canonical form (c. 1099 CIC/17; c. 1117 CIC/83).
7. A merely apparent and invalid marriage can be verified when, according to canon law, the juridic effect of a marriage that was celebrated can be deficient in three ways, namely when there was a diriment impediment (c. 1113 CIC/17; 1156 CIC/83), or a true internal consent was deficient in either party (c. 1136 CIC/17; c. 1156 CIC/83), or the canonical form that was used was defective (c. 1137 CIC/17; c. 1160 CIC/83).
Because in these cases the marriage is invalid and the spouses continue to live together, canon law provides two ways in which to regularize it, namely either through simple convalidation or through radical sanation.
Simple convalidation is applied if the marriage was invalid either because of a diriment impediment or because of defect of consent. And in the case of an impediment the marriage is convalidated by the cessation of or by a dispensation from the impediment together with a renewal of consent on the part of the one conscious of the impediment. In case of a defect of consent, “if the party who did not consent now consents, provided that the consent given by the other party perseveres” (cf. c. 1136 CIC/17; c. 1159 CIC/83). However, if the defect of consent was also external and could be proven, it is necessary that the consent is given in canonical form (c. 1136, §3 CIC/17; c. 1159, §3 CIC/83). Likewise, a marriage that is invalid because of defective canonical form, to be valid, it must be contracted in canonical form (cf. c. 1137 CIC/17; c. 1160 CIC/83).
For a valid simple convalidation, ecclesiastical law requires the renewal of consent, that is, for a true matrimonial bond to arise at the moment of convalidation, “a new act of the will concerning marriage which is known to have been null from the beginning” (c. 1134 CIC/17) is necessary. A similar determination is provided in c. 1156 of CIC/83.
“Ecclesiastical law requires this renewal for the validity of [the convalidation] even if each party gave consent at the beginning and did not revoke it afterwards” (c. 1333, §2 CIC/17; c. 1156, §2 CIC/83).
8. However, the question whether the institute of convalidation, understood in the strict sense, can be applied to a marriage where there was total lack of the required canonical form, is disputed.
For, if a Catholic party attempts marriage before a civil authority or a minister of another religion (i.e., without dispensation from the canonical form), such a celebration obviously lacks all elements of the canonical form and it is rightly described as an “inexistent marriage,” because it does not have any semblance or figure of marriage.
In the case of a civil marriage of those baptized in the Catholic Church or received into it, if, according to the present law, they have not defected from it by a formal act (c. 1117 CIC/83), the marriage is certainly null and it is clear that the nullity depends on the defect of due form; but many experts in canon law prefer rather to speak of an inexistent marriage in the case.
As evidenced by the writings of many authors truly expert in canonical matters, the long canonical tradition holds that, in the strict sense, the expression and the institute of “convalidation” cannot in any way be applied to the marriage of a Catholic party celebrated simply civilly and without observing the canonical form. For, the fundamental requisite and limit for the application of convalidation is always an invalid marriage. The marriage of a Catholic party celebrated only civilly, without dispensation from the canonical form, does not meet the precise definition of an invalid marriage because such a civil marriage does not in any way have the semblance or figure of a true marriage.
“Convalidation of marriage is an act whereby that which had only the appearance of a true marriage becomes real, when what was deficient in it before is now supplied” (T. Vlaming, Praelectiones iuris canonici, vol. II, p. 349, n. 760). And so, “Simple convalidation of marriage is an act by which an invalid marriage is rendered valid with the renewal of consent” (P. Gasparri, Tractatus canonicus de matrimonio, ed. nova ad mentem Codicis I.C., vol. II, In Civitate Vaticana, Typis polyglottis Vaticanis, 1932, p. 253, n. 1189).
“Convalidation of marriage is an act by which a marriage that was celebrated before according to the prescribed form, but invalid because of some defect of the form itself or of consent, or because of a diriment impediment, is sanated and becomes valid. Therefore, there is no convalidation properly so-called unless there is at least a semblance of a true marriage. Nor can one speak of convalidation if it is a matter of a marriage that was validly but only illicitly celebrated” (M. Conte a Coronata, Institutiones iuris canonici ad usum utriusque cleri et scholarum. De sacramentis tractatus canonicus, tomus III, De matrimonio et de sacramentalibus, Romae, Marietti, 1957, p. 933).
In the same way, Wernz–Vidal wrote: “Convalidation of a marriage is an act whereby a marriage previously celebrated invalidly, but with the appearance of legitimacy and form, is so restored that it acquires its validity” (F.X. Wernz – P. Vidal, Ius canonicum, tomus V, Ius matrimoniale, 3a ed., Romae, Apud Aedes Universitatis Gregorianae, 1946, p. 852, n. 652).
According to A.C. Jemolo, “... today it is certain that a civil marriage of Catholics is, as far as the Church is concerned, inexistent as a marriage, and not just a null marriage because of a defect of form; therefore, one cannot speak of a simple convalidation. Between Catholics, the canon is applicable only in cases of a marriage null because it was contracted before a bishop or a parish priest who celebrated outside their territory, or who lacked one of the conditions indicated in c. 1095, §1, or before a priest who had no permission or with an invalid permission or with a permission subject to a condition that had not been verified, or without the presence of witnesses” (A.C. Jemolo, Il matrimonio nel diritto canonico, Milano, Francesco Varaldi, 1941, p. 307, n. 165).
“For Jemolo, therefore, if we understand his mind correctly, in the case of a merely civil marriage of Catholics, convalidation not only does not happen, nor can it happen because, one cannot speak, in the case, of a true first celebration of marriage. In other words, the canon must be applied where the form was deficient, and not where it was totally lacking” (decision c. Funghini, 30 June 1988, in RRT Dec., 80 , pp. 440-441, n. 2).
Also F. Galtieri, versed in oriental language, states: “One convalidates an invalid marriage; the absence of marriage is not a null marriage. Therefore, one cannot speak of convalidation when it is a matter of regularizing a situation of two persons who have been living in a concubinage” (F. Galtier, Le mariage: discipline orientale et discipline occidentale, [Beyrouth, Université St. Joseph, Faculté de Théologie], 1950, p. 357).
In light of these views, it seems very difficult to speak in absolute terms of a civil marriage as inexistent as far as the Church is concerned, because the same marriage, provided that it was entered into with marital affection and the consent given under the appearance and external figure of a lawful marriage perseveres, can be radically sanated according to c. 1139, §1 CIC/17 (c. 1162, §1 CIC/83).
According to the mind of the cited canon, therefore, we must say that we are dealing more correctly with a juridically inefficacious marriage.
In fact, one can admit without difficulty that the contractants, even if they are baptized in the Catholic Church or converted to it from heresy or schism, when marrying before the civil authority really want to become true spouses in the internal and external forum. Their consent, however, which might have been naturally sufficient, is juridically inefficacious in the absence of the necessary canonical form, by which they are bound under the penalty of nullity of the marriage in virtue of c. 1099, 1o (cf. c. 1117 CIC/83).
9. The mind of the Legislator, therefore, seems to exclude simple convalidation for civil marriages, because the canonical form is totally absent in them.
For, in the 1980 schema drafted by the Pontifical Commission for the Revision of the Code of Canon Law, it was declared in c. 1014, which corresponds to c. 1061 of the Code presently in force: “§4. Also a civilly contracted marriage, which is invalid due to defect of canonical form, is understood as an invalid marriage.” But later this paragraph was omitted, and the Secretary responded to the omission as follows: “As to §4: It is suppressed, because it is really possible to lead to erroneous conclusions, nor does its omission impede radical sanation, which can be granted even if the marriage is null” (Communicationes, 15 , p. 224).
Indeed, the present Code on radical sanation speaks of the form that was not observed, “[dispensation] from canonical form, if it was not observed” (c. 1161, §1), because in simple convalidation there is a figure of “defect of form” (cf. c. 1160 CIC/83). Thus it brings out the distinction between the absence of canonical form and the defect of canonical form.
Therefore, even in the present Code, the marriage of a Catholic party celebrated only civilly or before a minister of another religion is not considered to have the semblance and form of a true marriage, because such a ceremony is not even regarded as a putative marriage. Thus, an inquiry or investigation of such a previous marriage does not require the use of an actual judicial process for declaring the nullity. In such cases, the only requirement is that the parish priest or the delegate of the Ordinary, through some administrative investigation according to cc. 1066-1067, attains moral certitude concerning the effective free status of the one marrying before she/he is permitted to have a canonical celebration of a sacramental marriage (cf. Pontifical Commission for the Authentic Interpretation of the Code of Canon Law, Response, 26 June 1984, n. II, in AAS, 76 , p. 747).
For this reason, in the case of a Catholic who celebrates a civil marriage, there is total absence of the canonical form, and consequently, simple convalidation, in the strict sense, cannot be used in such a case.
10. However, there are some who think that the civil marriage of those who are bound to observe the canonical form (cf. 1099 CIC/17) can be sanated through simple convalidation because some public form is observed and, therefore, it is a matter of a defect of form rather than an absence of form: “I maintain ... that in our Code the so-called civil marriage may be convalidated (whether in a simple form or in a radical sanation” (G. Montini, “La convalidazione del matrimonio: semplice; sanazione in radice,” in Quaderni della Mendola, 3, Matrimonio e disciplina ecclesiastica, Milano, 1996, p. 192).
L. Chiappetta states: “A religious marriage is the one celebrated in the canonical form prescribed by the Church. A civil marriage is the one contracted in a form prescribed by the State, before a public magistrate or official. Such a marriage moreover is legitimate, if the contractants are not baptized (c. 1015, §3 CIC/17); illegitmate, if it is attempted by persons bound to the canonical form in accord with the norm of c. 1117” (L. Chiappetta, Il matrimonio nella nuova legislazione canonica e concordataria, manuale giuridico-pastorale, Roma, Edizioni Dehoniane, 1990, pp. 15-16, n. 34).
“The defect of form can be verified in several ways: absence of a minister competent in virtue of ordinary or delegated faculty (unless the Church ‘supplies’ the lack of necessary faculty according to the norm of c. 144), absence of witnesses or even of one of them. The civil marriage itself can be regarded as a marriage null because of defect of form” ( ibid., p. 400, n. 1160).
Wernz-Vidal, therefore, correctly note: “In virtue of the modern law, in a civil marriage a man and a woman, by means of a true and proper bilateral contract, mutually give to each other certain perpetual right to the use of the body for the purpose of generating and educating the offspring” (Wernz-Vidal, Ius matrimoniale, p. 736, n. 583).
Therefore, if the absence of any legitimate form, which can indeed be radically sanated (cf. c. 1139, §1 CIC/17), is also admitted under the category of defect of canonical form, simple convalidation would be applicable also to marriages entered into through a civil ritual only.
11. However, as in every case, the illustrious doctor of canon law, Cardinal Urbano Navarrete, after conducting an accurate study of the entire question, has recently reached the following conclusion in the article: “A proposito del decreto della Segnatura Apostolica del 23 novembre 2005,” in Periodica, 96 (2007), p. 333: “Anyway, from whatever has been said so far, the following important conclusion can be drawn: according to the interpretation consistent with all the canons on convalidation and according to the very wording of cc. 1156-1158/83 (cc. 1133-1135/17), the ecclesiastical law concerning the obligation to renew the consent for the validity of simple convalidation, limits itself to the case of nullity ‘due to a diriment impediment’. If any confusion should remain, one would at least be certain that this is a question of a doubtful law, and then the first part of c. 14 should be applied, ‘Laws, even invalidating and disqualifying ones, do not oblige when there is a doubt of law,’ a norm that is particularly binding with respect to those who should apply the laws on the administration of justice in the Church, with the prospect of a risk of committing injustice to passive subjects. Precisely for this reason, according to my opinion, in the present state of legislation it is not in conformity with the law in force to demand the renewal of consent, according to the meaning of cc. 1156-1157/83 (cc. 1133-1135/17), in the invalidities ‘due to defect of consent’ (cc. 1159/93; c. 1136/17), nor in those ‘due to defect of form’ (c. 1160; c. 1137/17).”
Rotal jurisprudence affirms the same; for example, we read in a sentence coram Huber: “In short, we are not dealing in the case before us with the convalidation of an invalid marriage, but with a new canonical celebration of marriage. In fact, as far as the Church in concerned, a civil marriage is by no means regarded as null or putative, because it is deemed to be simply non-existent. For, convalidation is admitted only when a marriage is null because of a canonical cause or defect; but this can in no way be admitted in the case of an inexistent marriage, as in a case of civil marriage. ‘Convalidation of marriage is an act by which a marriage that was celebrated before under a legitimate semblance and form, but invalidly, is so restored that it acquires its validity’ (Wernz– Vidal, Ius matrimoniale, p. 852, n. 652).’
“Unfortunately, some confusion is created by the fact that in some particular Churches, the expression ‘convalidatio’ (v.d. ‘convalidation’) or the expression ‘benedictio’ (v.d. ‘blessing’) for canonical marriage celebrated after a prior civil or non-Catholic ceremony, are taken in an improper sense ...
“In a strict sense, therefore, it is lawful in the case to speak of a new celebration of marriage, or, more correctly, of a first (and certainly before the Church, the only) celebration of marriage (decision c. Huber, nn. 5-6).
12. Therefore, in order to clear away the inefficacy of a merely civil ceremony, the very same requisites necessary for the first celebration of any marriage of a Catholic party are required, that is to say, actual de praesenti consent of the parties, manifested properly through the legitimate canonical form and absence of an obstacle of some diriment impediment. It makes no difference if we call this a first, new or renewed consent, provided that it is clear to everyone that there is an actual, effective matrimonial consent, present at the moment of celebrating the canonical wedding.
For, already in the canonical celebration which clears away the inefficacy of the merely civil celebration (cf. c. 1160), that is, in the first and true nuptial celebration, it is necessary, at least externally, that the words expressing true consent are pronounced. Thus, the condition of that marriage is the same as the one to be fulfilled in every marriage, namely it is governed by the prescript of c. 1101, §1: “The internal consent of the mind is presumed to conform to the words and signs used in celebrating the marriage.”
Nor is it permitted, for the sake of creative interpretation and use in a broader sense of the well defined canonical term ‘convalidation,’ to reverse the burden of proof entirely so that the judges and the defender of the bond, instead of the petitioner, are forced to demonstrate the new and renewed consent in the parties, for in this case also, the marriage that was properly celebrated possesses the favour of law (c. 1060).
“Whenever there is a repeated celebration in canonical form of a marriage that was inefficacious because of lack of legitimate form, there is necessarily present, in the very words of the canonical form that is used, a new expression, that is, an external manifestation, of the consent. Hence, it is up to the petitioner to prove that the consent given during the canonical ceremony (and therefore, de facto the very new act of consent) was not a true, and actual act of matrimonial consent de praesenti. Evidently, the will to give and receive at this moment and from this moment in perpetuity all the essential rights-duties of marriage is considered the consent de praesenti. Therefore, the real question in these cases precisely is whether or not there is total simulation. For, the nullity in this case is claimed either because it is believed that the party had really not given or received the true matrimonial consent at the moment of canonical celebration, because he/she had remained content with the consent already given during the civil ceremony, or because it is determined that the party had consciously simulated, refusing to present the consent at that moment and unwilling to recognize any efficacy and validity to the canonical ceremony” (decision c. Boccafola, 12 March 1998, in RRT Dec., 90 , pp. 233-234, n. 12).
13. It is necessary that consent is legitimately manifested, and for Catholics it is done according to the canonical form (cf. c. 1081, §1 CIC/17). Consent is an act of the will, which can turn toward the object of the contract also implicitly.
Total simulation of consent is perpetrated also “by simulation of the matrimonial will,” and one who does this “gives no consent to it, because he/she positively did not want to give consent when he/she could have done so, that is, when he/she had the intention not to contract, but, as we usually say, he/she prefers to play act; or more precisely if someone positively excludes the intention to contract, that is, rejects the intention to contract, or someone who completely lacks the matrimonial will” (A. Stankiewicz, “De iurisprudentia rotali recentiore circa simulationem totalem et partialem,” in Monitor ecclesiasticus, 122 , pp. 210-211).
The matrimonial contract is governed by natural, evangelical and canonical laws; for this reason, the Magisterium of the Church always taught that a marriage between the baptized is indissoluble. The conjugal communion is distinguished not only by its unity but also by its indissolubility: “And this intimate union, as a mutual giving of two persons, and the good of children, demand total fidelity from the spouses and require an unbreakable unity between them” (Second Vatican Council, Constitution on the Church in the Modern World, Gaudium et spes, n. 48).
Therefore, canon law received this Magisterial teaching and declares: “The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament” (c. 1056).
Also c. 1057, §1 determines: “The consent of the parties, legitimately manifested between persons qualified by law, makes marriage; no human power is able to supply this consent”; for, in celebrating marriage, a truly matrimonial consent is necessary on the part of both spouses; therefore, this consent is necessary to establish marriage with its essential elements. And §2 of the same canon states: “Matrimonial consent is an act of the will by which a man and a woman mutually give and accept each other through an irrevocable consent in order to establish marriage.” Especially because, “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized” (c. 1055, §1).
Hence, c. 1101 confirms: “§1. The internal consent of the mind is presumed to conform to the words or signs used in celebrating the marriage. §2. If, however, either or both of the parties by a positive act of the will exclude marriage itself, some essential element of marriage, or some essential property of marriage, the party contracts invalidly.”
“Feigning, that is, simulation of matrimonial consent is verified when a contractant externally pronounces seriously and properly the words which express consent, but he/she does not have it internally” (Gasparri, Tractatus canonicus de matrimonio, vol. II, p. 36, n. 814).
Simulation is a dissonance between the declaration of the will and the internal will, which impedes the composition of consent, without which marriage cannot arise. Therefore, the act of the will should be sincere.
Simulation consists in a positive act of the will by which a contractant excludes marriage itself, or some essential element or some essential property of marriage. One who simulates consent contracts marriage invalidly and, while he/she externally pronounces the words of consent, internally however by a positive act of the will excludes marriage itself, or all right to conjugal act, or some essential property of marriage (c. 1101, §2).
One who simulates totally does not want to contract marriage; one who excludes some good wants to contract but intends a marriage as conceived by him/her self.
“Therefore, a revocable consent, given for a time only, is not valid to establish marriage, because it denies the right of perpetuity. In fact, indissolubility by its nature does not permit the distinction between the right and its exercise, and a contractant who determines by a positive act of the will to enter into a marriage that is merely dissoluble, to be dissolved according to his/her whim, by that very fact excludes the essential property of indissolubility from matrimonial consent and, therefore, contracts invalidly” (decision c. Di Felice, 31 November 1981, in RRT Dec., 73 , p. 530, n. 3).
Simulation by a positive act of the will should be proved in the juridical forum.
14. Canon 1101, §2 of CIC/83 also states: “If, however, either or both of the parties by a positive act of the will exclude marriage itself ... contracts invalidly.”
“Thus, someone can exclude marriage itself not only by refusing, by a positive act of the will, to elicit the internal consent ... but also by pursuing some other end totally alien, that is, extrinsic, to marriage, as the principal and exclusive object of consent; which likewise, although it is less properly called total simulation, juridically assumes a semblance of fiction” (decision c. Anné, 13 November 1962, in RRT Dec., 54 , pp. 591-592, n. 2).
Every contract, therefore, even matrimonial contract, has its own cause. And this cause must be diligently “distinguished from the motive by which the contractants are led to enter into a juridic contract, that is, from an extrinsic end.
“The cause of matrimonial contract cannot be anything other than the mutual giving and accepting of the perpetual and exclusive right to the body for acts per se apt for the generation and education of offspring ... When this cause is lacking, namely, if a contractant exclusively intends to contract something essentially different from marriage, the matrimonial contract collapses and it is only ‘a naked and imaginary’ reason, which “is regarded as not being done’ ...” (ibid.).
In order to perpetrate this form of simulation, that is, fiction, it is not sufficient to contract solely for some other cause, that is, for an end extrinsic to marriage, but it is necessary that the very object of marriage be simultaneously excluded by a positive act of the will, namely, the true juridic cause of the matrimonial contract, which, according to c. 1101, §2, is called marriage itself.
And the cited sentence coram Anné states: “The invalidity of marriage, however, does not follow in case of mere absence of an explicit intention to contract marriage. For, the external expression itself becomes consent through the positive act of the will, and ‘the internal consent of the mind is always presumed to conform to the words or signs used in celebrating the marriage’ (c. 1086, §1), and this presumption cannot be overturned except through proof of a contrary positive act of the will [...]” (ibid.).
Original Latin Text of the In Iure Section: de defectuosa convalidatione6. Matrimonium facit partium consensus inter personas iure habiles legitime manifestatus, qui nulla potestate humana suppleri valet. Idque tenendum est, attento praescripto sive veteris Codicis Iuris Canonici (can. 1081, §1) sive vigentis (can. 1057, §1). De consensu matrimoniali Paulus VI affirmavit: “Vi huius principii, omnibus probe cogniti, matrimonium exsistit eo ipso temporis momento, quo coniuges matrimonialem consensum praestant iuridice validum ... Quod fit ut, cum semel effectum iuridicum creaverit seu vinculum matrimoniale, huiusmodi consensus irrevocabilis evadat ac virtute careat id, quod peperit, destruendi” (Paulus VI, Allocutio ad Rotam Romanam, diei 9 februarii 1976, in AAS, 68 , p. 206).
Si alteruter nubentium catholice baptizatus sit coniugalis consensus praestandus est iuxta canonicam formam (can. 1099 CIC/17; can. 1117 CIC/83).
7. Matrimonium mere apparens ac invalidum verificari potest cum, iuxta legem canonicam, tripliciter deficere possit iuridicus effectus celebrati matrimonii, cum nempe adfuerit impedimentum dirimens (can. 1133 CIC/17; can. 1156 CIC/83), vel defuerit ab alterutra parte verus interior consensus (can. 1136 CIC/17; can. 1158 CIC/83), vel canonica forma observata vitiata fuerit (can. 1137 CIC/17; can. 1160 CIC/83).
Cum hisce in casibus invalidum sit matrimonium et coniuges pergant in ducenda cohabitatione, dupliciter cavet canonica lex, scilicet vel per simplicem convalidationem vel per sanationem in radice.
Convalidatio simplex applicatur si matrimonium irritum fuit vel ob impedimentum dirimens vel ob defectum consensus, et nuptiae convalidantur – in casu impedimenti, – per cessationem vel dispensationem impedimenti una cum renovatione consensus saltem illius partis impedimenti consciae – in casu defectus consensus –, “si pars quae non consenserat, iam consentiat, dummodo consensus ab altera parte praestitus perseveret” (cfr. can. 1136 §1 CIC/17; can. 1159 §1 CIC/83); Attamen, si defectus consensus etiam externus fuerit ac probari posset, necesse est ut consensus forma canonica praestetur (can. 1159 §3 CIC/83, can. 1136, § 3 CIC/17). Similiter, matrimonium irritum ob formam canonicam vitiose celebratam, ut validum fiat, forma canonica contrahi debet (can. 1160 CIC/83).
Pro convalidatione simplici, iure ecclesiastico ad validitatem, requiritur renovatio consensus, i.e., ut verum vinculum matrimoniale momento convalidationis oriatur requiritur “novus voluntatis actus in matrimonium quod constet ab initio nullum fuisse” (can. 1134 CIC/17). Similiter statuit c. 1156 CIC/83.
“Haec renovatio iure ecclesiastico requiritur ad validitatem, etiamsi, initio utraque pars consensum praestiterit nec postea revocaverit” (can. 1333, § 2 CIC/17; can. 1156, § 2 CIC/83).
8. Nihilominus, quaestio disputatur utrum institutum convalidationis, stricto sensu intellectae, applicetur matrimonio ubi adfuerit totalis carentia requisitae formae canonicae. Nam si pars catholica matrimonium attentet coram auctoritate civili vel ministro alius religionis (i.e., sine dispensatione a forma canonica), talis celebratio manifeste caret qualicumque elemento formae canonicae ac recte describitur veluti ‘matrimonium inexistens’, cum nullo modo habet speciem vel figuram veri matrimonii.
In casu matrimonii civilis baptizatorum in Ecclesia catholica vel in eamdem receptorum, si iure vigenti actu formali ab ea non defecerint (can. 1117 CIC/83), matrimonium utique nullum est et patet nullitatem pendere ex defectu debitae formae, sed plures periti in lege canonica potius de matrimonio inexsistenti, in casu, loqui malunt.
Longa traditio canonica, ut testatur scriptis plurium auctorum re vera peritorum in re canonica, tenet, sensu stricto, locutionem ac institutum “convalidationis” nullo modo applicari potest nuptiis partis catholicae mere civiliter celebratis ac sine observantia formae canonicae. Nam requisitum fundamentale ac terminus a quo ut convalidatio sit applicanda, est semper matrimonium invalidum; matrimonium catholicae partis mere civiliter celebratum, sine dispensatione a forma canonica, haud implet praecisam definitionem matrimonii invalidi quia tale civile matrimonium nullo modo habeat speciem vel figuram veri matrimonii.
“Matrimonii convalidatio est actus quo id quod matrimonii veri nonnisi speciem habebat, tale fit reapse, suppleto quod ad hoc ei antea deerat” (T. Vlaming, Praelectiones iuris canonici, vol. II, p. 349, n. 760). Et ita: “Simplex matrimonii convalidatio est actus quo matrimonium invalidum redditur validum cum renovato consensu” (P. Gasparri, Tractatus canonicus de matrimonio, ed. nova ad mentem Codicis I.C., vol. II, In Civitate Vaticana, Typis polyglottis Vaticanis, 1932, p. 253, n. 1189);
“Convalidatio matrimonii est actus quo matrimonium ante praescripta forma celebratum, at invalidum ob aliquod vitium ipsius formae vel consensus, vel ob aliquod impedimentum dirimens, sanatur et validum fit. Non habetur proinde proprie dicta convalidatio nisi habeatur saltem species veri matrimonii. Nec item sermo esse potest de convalidatione si agatur de matrimonio valide sed solum illicite celebrato” (M. Conte a Coronata, Institutiones iuris canonici ad usum utriusque cleri et scholarum. De sacramentis tractatus canonicus, tomus III, De matrimonio et de sacramentalibus, 3a ed., Romae, Marietti, 1957, p. 933).
Simili modo Wernz– Vidal: “Convalidatio matrimonii est actus quo matrimonium ante sub legitima specie et forma, sed nulliter celebratum, ita restauratur ut suum consequatur valorem” (F.X. Wernz – P. Vidal, Ius canonicum, tomus V, Ius matrimoniale, 3a ed., Romae, Apud Aedes Universitatis Gregorianae, 1946, p. 852, n. 652).
Ita iuxta A.C. Jemolo: “... oggi certo che il matrimonio civile dei cattolici é per la Chiesa inesistente come matrimonio, e non già nullo per difetto di forma, sicche non puo parlarsi di convalidazione semplice. Tra i cattolici, il canone può quindi avere applicazione solo nei casi di matrimonio nullo per essere stato contratto dinanzi ad un vescovo o ad un parroco che celebrasse fuori del suo territorio, o che versasse in alcuna delle condizioni indicate nel can. 1095, §1, o ad un sacerdote privo di licenza o con licenza nulla o sottoposta a condizione non verificatasi, o senza la presenza dei testimoni” (A.C. Jemolo, Il matrimonio nel diritto canonico, Milano, Francesco Varaldi, 1941, p. 307, n. 165).
“Pro Jemolo igitur, si bene intelligimus eius mentem, in casu matrimonii mere civilis catholicorum, convalidatio non tantum non habet locum, sed nec habere potest cum, in casu, nullatenus de una vera prima matrimonii celebratione loquendum est. Aliis verbis canon applicandus est ubi vitiosa fuerit forma, non autem ubi omnino absens” (decisio coram Funghini, diei 30 iunii 1988, in RRT Dec., 80 , pp. 440-441, n. 2).
Etiam F. Galtier, orientali sermone doctus, affirmat: “On convalide un mariage invalide; l’ absence de mariage n’est pas un mariage nul. On ne peut donc parler de convalidation quand il s’agit de regulariser la situation de deux personnes qui se sont installées dans la concubinage” (F. Gaitier, Le mariage: discipline orientale et discipline occidentale, [Beyrouth, Université St. Joseph, Faculté de Théologie], 1950, p. 357).
Quibus attentis absolute loqui de matrimonio civili uti inexistenti pro Ecclesia arduum videtur eo vel magis quod idem, dummodo initum fuerit affectu maritali et consensus sub specie et figura extrinseca iusti matrimonii datus perseveret, iuxta canonem 1139, §1 CIC/17, sanari potest in radice.
Ad mentem citati canonis dicendum proinde rectius agi de matrimonio iuridice inefficaci.
Sine negotio admitti enim potest contrahentes, quamvis in ecc1esia catholica baptizatos vel ad eam ex haeresi aut schismate conversos, coram magistratu civili revera velle fieri pro foro interno et externo veri coniuges. Eorum vero consensus, qui naturaliter sufficiens esset, est iuridice inefficax: deficiente necessaria forma canonica, quibus iidem vi canonis 1099, §1 CIC/17 (c. 1162, §1 CIC/83) sub poena nullitatis matrimonii obstringuntur.
9. Mens Legislatoris dein excludere videtur convalidationem simplicem pro matrimoniis civilibus, quia in ipsis abest prorsus forma canonica.
Nam, in schemate anni 1980 redacto a Pontificia Commissione Codici Iuris Canonici Recognoscendo, in can. 1014, qui respondet can. 1061 Codicis nunc vigentis, edicebatur: “§4. Matrimonium invalidum intelligitur etiam matrimonium civiliter contractum, quod est propter defectum formae canonicae invalidum.” Attamen, deinde haec paragraphus delata est, atque ad rem Secretaria respondit: “Ad §4: Supprimitur, nam revera potest ad conclusiones erroneas ducere, neque eius omissio obstat sanationi in radice quae concedi potest etiam si matrimonium sit nullum” (Communicationes, 15 , p. 224).
Et reapse Codex vigens pro sanatione in radice loquitur de non servata forma canonica “a forma canonica, si servata non fuerit” (can. 1161, § 1), cum vero in convalidatione simplici habeatur figura “defectus formae” (cf. can. 1160), distinctione allata inter absentiam formae canonicae et defectum formae canomcae.
Ideo, etiam in vigente Codice, partis catholicae matrimonium tantummodo civiliter vel apud ministrum alius religionis celebratum haud censetur habere figuram ac speciem veri matrimonii, cum talis caerimonia ne putativum quidem matrimonium consideretur. Ita, inquisitio vel investigatio de aliquo tali priore matrimonio minime requirit usum actualis processus iudicialis pro declaranda nullitate; in talibus casibus requiritur tantummodo ut parochus vel delegatus Ordinarii per aliquam investigationem administrativam iuxta cann. 1066-1067 se moraliter certum reddat de effectivo statu libero nupturientis, antequam ei permittatur canonica celebratio Sacramenti matrimonii (cfr. Responsio Pontificiae Commissionis pro Codici Iuris Canonici Authentice Interpretando, diei 26 iunii 1984, n. II, in AAS, 76 , p. 747).
In casu ergo catholici qui matrimonium civile celebrat, totalis absentia formae canonicae habetur, ac proinde convalidatio – simplex, stricto sensu, in huiusmodi casu haberi nequit.
10. Attamen, sunt aliqui qui censent matrimonium civile illorum qui ad formam canonicam servandam astricti sunt (cf. 1099 CIC/l7) per convalidationem simplicem sanari posse, quia in ipso aliqua forma publica servata est, ac proinde de defectu formae canonicae agitur, potius quam de absentia formae: “Ritengo ... che nel nostro codice il c.d. matrimonio civile sia convalidabile (sia in forma semplice sia in sanazione in radice)” (G. Montini, “La convalidazione del matrimonio: semplice; sanazione in radice,” in Quaderni della Mendola, 3: Matrimonio e disciplina ecclesiastica, Milano, 1996, p. 192).
Aloisius Chiappetta affirmat: “Il matrimonio religioso è quello celebrato nella forma canonica prescritta dalla Chiesa. Il matrimonio civile [è] quello contratto nella forma prescritta dallo Stato, dinanzi al pubblico magistrato o funzionario. Tale matrimonio è per altro legittimo, se i contraenti non sono battezzati (can. 1015, §3 CIC/17); illegittimo, se attentato da persone tenute alla forma canonica, a norma del can. 1117” (L. Chiappetta, Il matrimonio nella nuova legislazione canonica e concordataria, manuale giuridico-pastorale, Roma, Edizioni Dehoniane, 1990, p. 400, n. 1160).
“Il difetto di forma può verificarsi in più modi: assenza del ministro competente per facoltà ordinaria o delegata (tranne che la Chiesa ‘supplisca’ la mancanza della facoltà necessaria, a norma del can. 144), assenza dei testimoni o anche di uno di essi. Lo stesso matrimonio civile può essere considerato un matrimonio nullo per difetto di forma” (ibid., pp. 15-16, n. 34).
Recte igitur animadverterat Wernz–Vidal: “Ex iure moderno in matrimonio civili vir et mulier vero et proprio contractu bilaterali sibi mutuo tradunt ius quoddam perpetuum ad usum corporis in ordine ad generandam et educandam prolem” (Wernz-Vidal, Ius matrimoniale, p. 736, n. 583).
Si ergo etiam absentia cuiuslibet legitimae formae, quae quidem in radice sanari potest (cfr. can. 1139, §1 CIC/17), sub categoria defectus formae canonicae reciperetur, etiam ad matrimonia, tantum per ritum civilem inita, convalidatio simplex pertineret.
11. Utcumque ac in omni casu, illustris doctor iuris canonici, Urbanus Cardinalis Navarrete, post accuratum examen totius quaestionis, nuper hanc conclusionem pertingit, scribens in articulo, “A proposito del decreto della Segnatura Apostolica del 23 novembre 2005,” in Periodica, 96 (2007), p. 333: “Ad ogni modo da quanto detto risulta questa conclusione importante: secondo l’interpretazione congruente con tutti i canoni sulla convalidazione e secondo pure la lettera stessa dei cann. 1156-1158/83 (cann. 1133-1135/17), la legge ecclesiastica sull’obbligo di rinnovare il consenso per la validità della convalidazione semplice, si limita soltanto al caso di nullità ‘ob impedimentum dirimens’. Se restasse qualche perplessità, per lo meno sarebbe certo che si tratta di una legge dubbia, e allora si deve applicare la prima parte del can. 14, ‘Leges etiam irritantes ed inhabilitantes in dubio iuris non urgent’, norma che è particolarmente obbligante rispetto a coloro che debbono applicare le leggi riguardanti l’amministrazione della giustizia nella Chiesa, sotto il rischio di commettere ingiustizie ai soggetti passivi. Proprio per questo, a mio parere, nello stato attuale della legislazione non è conforme al diritto vigente esigere la rinnovazione del consenso, ai sensi dei cann. 1156-1157/83 (cann. 1133-1135/17), nelle invalidità ‘ob defectum consensus’ (can. 1159/83; can. 1136/17) ne in quelle ‘ob defectum formae’ (cann. 1160/83; can. 1137/17).”
Idem affirmat jurisprudentia Rotalis, e. g. in sententia coram Huber: “In specie nostra, prorsus, haud agitur de convalidatione invalidi matrimonii, sed de nova matrimonii canonica celebratione. Matrimonium civile, enim, pro Ecclesia minime nullum vel putativum retinetur, quia simpliciter inexistens putatur. Convalidatio etenim admittitur solummodo cum matrimonium, ob causam vel vitium canonicum, nullum sit; at hoc minime dari potest in casu matrimonii inexistentis, sicut in casu matrimonii civilis: ‘Convalidatio matrimonii est actus quo matrimonium ante sub legitima specie et forma, sed nulliter celebratum, ita restauratur, ut suum consequatur valorem’ (Wernz – Vidal, Ius matrimoniale, p. 852, n. 652).
“Proh dolor aliqua confusio gignitur ex facto quod in aliquibus Ecclesiis particularibus, vox ‘convalidatio’ (v.d. ‘convalidation’) vel vox ‘benedictio’ (v.d. ‘blessing’) pro matrimoniis canonicis celebratis post aliquam praehabitam caeremoniam civilem vel non catholicam, sensu improprio sumuntur ...’
“Stricto sensu, igitur, fas est in casu loqui de nova matrimonii celebratione, vel, rectius, de prima (et quidem in facie Ecclesiae, unica) matrimonii celebratione (sententia coram Huber, nn. 5-6).
12. Ideo, pro inefficacita merae civilis caerimoniae purganda requiruntur illa eadem requisita utpote pro prima celebratione qualiscumque matrimonii partis catholicae, i.e., actualis consensus de praesenti partium, rite manifestatus per legitimam formam canonicam atque absentia obicis alicuius impedimenti dirimentis. Nihil differt si nominemus hunc consensum primum, novum vel renovatum, dummodo omnibus palam sit adesse actualem, effectivum consensum matrimonialem, praesentem momento celebrationis canonicarum nuptiarum.
Nam iam in canonica celebratione quae purget inefficacitatem celebrationis merae civilis (cfr. c. 1160), seu in prima ac vera celebratione nuptiali, requiritur, saltern modo exteriore, pronuntiatio verborum verum consensum exprimentium. Ita, conditio illius matrimonii est eadem ac illa quae pro omni matrimonio adimplenda est, scilicet regitur praescriptione c. 1101: “Internus animi consensus praesumitur conformis verbis vel signis in celebrando matrimonio adhibitis.”
Nec licet, gratia creativae interpretationis ac usus in sensu largiore iam bene determinati termini canonici ‘convalidationis’, omnino obvertere onus probandi ita ut dein, in vice actoris, iudicibus vel Defensori vinculi oporteat demonstrare novum ac renovatum consensum in partibus, nam etiam in hoc casu, matrimonium rite celebratum gaudet favore iuris (c. 1060).
“Quotiescumque enim habetur iterata celebratio in forma canonica nuptiarum inefficacium ob carentiam legitimae formae, necessarie adest, ex ipsissimis verbis formae canonicae celebratae adhibitis, nova expressio, seu externa manifestatio, consensus. Exinde remanet actori demonstrare consensum traditum in caerimonia canonica (ac proinde, de facto, ipsum novum actum consensus) haud fuisse verum, et actualem actum consensus matrimonialis de praesenti. Consensus de praesenti, scilicet, consideratur voluntas tradendi ac accipiendi hoc momento atque ab hoc momento usque in perpetuum omnia iura-officia essentialia matrimonialia. Ideoque, vera quaestio in his casibus est praecise utrum adsit vel non totalis simulatio consensus. Nam nullitas in casu postulatur sive quia censetur partem haud revera tradidisse vel accepisse verum consensum matrimonialem momento celebrationis canonicae, cum tranquille quieverit consensui iam in caerimonia civili dato, sive quia aestimatur partem conscie simulavisse, refutantem praestare consensum illo momento atque nolentem recognoscere ullam efficacitatem ac validitatem caerimoniae canonicae” (decisio c. Boccafola, diei martii 1998, in RRT Dec., 90 , pp. 233-234, n. 12)
13. Consensus quidem manifestetur legitime, et pro catholicis iuxta formam canonicam, opus est (cfr. can. 1081, §1 CIC/17); consensus est actus voluntatis, qui etiam implicite in obiectum contractus vertere potest.
Simulatio totalis consensus quidem patratur etiam “per simulationem voluntatis matrimonialis,” et hoc facit “qui nullum in idem consensum praestat, cum noluerit positive, dum posset, consensum praestare, seu cum animum habet non contrahendi, sed, ut dici solet, comoediam agere mavult; vel pressius si quis positive excludit animum contrahendi, seu reicit intentionem contrahendi, aut cui deest matrimonialis voluntas” (A. Stankiewicz, “De iurisprudentia rotali recentiore circa simulationem totalem et partialem,” in Monitor ecclesiasticus, 122 , pp. 210-211).
Contractus matrimonialis regitur legibus naturalibus, evangelicis et canonicis, idcirco Magisterium Ecclesiae semper docuit matrimonium inter baptizatos esse indissolubile. Coniugalis communio non solum unitate sua est insignis, sed etiam indissolubilitate: “Quae intima unio, utpote mutua duarum personarum donatio, sicut et bonum liberorum, plenam coniugum fidem exigunt et indissolubilem eorum unitatem urgent” (Concilium Vaticanum Secundum, Const. Past. Gaudium et spes, n. 48).
Quapropter lex canonica hanc Magisterii doctrinam recepit et edicit: “Essentiales matrimonii proprietates sunt unitas et indissolubilitas, quae in matrimonio christiano ratione sacramenti peculiarem obtinent firmitatem” (can. 1056).
Etiam can. 1057, §1 statuit: “Matrimonium facit partium consensus inter personas iure habiles legitime manifestatus, qui nulla potestate humana suppleri valet,” nam, in celebrando coniugio, requiritur consensus vere matrimonialis ex parte utriusque nupturientis, quapropter hic consensus sit oportet ad constituendum connubium cum eiusdem essentialibus elementis. Atque eiusdem canonis §2 statuit: “Consensus matrimonialis est actus voluntatis, quo vir et mulier foedere irrevocabili sese mutuo tradunt et accipiunt ad constituendum matrimonium.” Praesertim quia: “Matrimoniale foedus, quo vir et mulier inter se totius vitae consortium constituunt, indole sua naturali ad bonum coniugum atque ad prolis generationem et educationem ordinatum, a Christo Domino ad sacramenti dignitatem inter baptizatos evectum est” (can. 1055, §1).
Exinde can. 1101 sancit: “§1. Internus animi consensus praesumitur conformis verbis vel signis in celebrando matrimonio adhibitis. § 2. At si alterutra vel utraque pars positivo voluntatis actu excludat matrimonium ipsum vel matrimonii essentiale aliquod elementum, vel essentialem aliquam proprietatem, invalide contrahit.”
“Fictio seu simulatio consensus matrimonialis tunc verificatur, quando contrahens externe quidem verba consensum exprimentia serio et rite profert, sed interne illum non habet” (Gasparri, Tractatus canonicus de matrimonio, vol. II, p. 36, n. 814).
Simulatio est discordia inter declarationem voluntatis et internam voluntatem, quae impedit compositionem consensus, sine quo matrimonium oriri non potest. Ita actus voluntatis debet esse sincerus.
Simulatio consistit in positivo actu voluntatis, quo nupturiens excludit matrimonium ipsum, vel matrimonii essentiale aliquod elementum vel essentialem aliquam proprietatem. Invalide matrimonium contrahit qui consensum simulat et, dum consensus verba externe profert, interne autem positivo voluntatis actu excludit matrimonium ipsum, aut omne ius ad coniugalem actum, vel essentialem aliquam matrimonii proprietatem (can. 1101 §2).
Qui totaliter simulat, ipse nullum vult contrahere matrimonium, qui excludit aliquod bonum, vult contrahere sed intendit matrimonium utpote a se conceptum.
“Consensus ideo revocabilis, solummodo ad tempus praestitus, haud validus est ad matrimonium constituendum, quia ius perpetuitatis coniugii denegat. Etenim indissolubilitas suapte natura distinctionem iuris ab eiusdem exercitio non permittit atque nupturiens, positivo voluntatis actu statuens coniugium mere solubile inire iuxta suum arbitrium solvendum, eo ipso excludit essentialem proprietatem indissolubilitatis e matrimoniali consensu ac proinde invalide contrahit” (decisio coram Di Felice, diei 31 novembris 1981, in RRT Dec., 73 , p. 530, n. 3).
Simulatio per positivum actum voluntatis in foro iudiciali probari debet.
14. Etiam statuit can. 1101 §2 CIC/83: “Si alterutra vel utraque pars positivo voluntatis actu excludit matrimonium ipsum ... invalide contrahit.”
“Ita, ipsum matrimonium excludere quidam potest, non tantum renuendo, actu positivo voluntatis, consensum internum ponere ... sed etiam prosequendo alium finem a matrimonio omnino alienum seu extrinsecum tamquam obiectum principale et exclusivum consensus; quod pariter, quamvis minus proprie simulatio totalis nuncupatur, potius iuridice speciem fictionis induit” (decisio coram Anné, diei 13 novembris 1962, in RRT Dec., 54 , pp. 591-592, n. 2).
Omnis contractus ideoque et matrimonialis contractus habet suam causam. Quae causa sedulo “distinguenda est a motivo quo contrahentes ad negotium iuridicum ineundum ducuntur seu a fine extrinseco. Causa matrimonialis contractus esse nequit nisi mutua traditio et acceptatio iuris in corpus perpetuum et exclusivum in ordine ad actus per se aptos ad prolis generationem et educationem ... Hac deficiente causa, nempe si contrahens aliud paciscendum exclusive intendit a matrimonio essentialiter diversum, ruit contractus matrimonialis et est tantum ‘nuda et imaginaria’ ratio, quae ‘pro non facta est’ ...” (ibid.).
Ad hanc speciem simulationis totalis seu fictionis patrandam non sufficit nuptias contrahere ex sola alia causa seu ob finem matrimonio extrinsecum, sed requiritur, ut simul excludatur actu postivo voluntatis obiectum ipsum matrimonii, nempe vera causa iuridica contractus matrimonialis, quae iuxta can. 1101 §2, ipsum matrimonium nuncupatur.
Et statuit citata sententia coram Anne: “Non sequitur autem invaliditas matrimonii in casu merae absentiae intentionis explicitae contrahendi matrimonium. Nam ipsa expressio externa consensus fit per actum positivum voluntatis et ‘internus animi consensus semper praesumitur conformis verbis vel signis in celebrando matrimonio adhibitis’, (can. 1086 §1), quae praesumptio refelli nequit nisi per probationem actus positivi voluntatis contrarii [...]” (ibid.).
3 — The Argument15. First of all, we must distinguish by the following observations: a) In the first process before the Tribunal of Smyrna, there were three grounds of nullity: defect of discretion of judgment on the part of the petitioner, and also “defective convalidation” on the part of both parties. The decision in the first grade of jurisdiction was affirmative only in favor of “defective convalidation” on the part of the respondent, who presented an appeal to the Roman Rota against only the affirmative part of the sentence, that is, against the ground of “defective convalidation.” b) By its decree, the Rotal Turnus admitted the cause to an ordinary examination of the second grade and, because the respondent had appealed against the affirmative part of the sentence, the ground of “defective convalidation” on the part of the woman was the only ground determined in the second grade, and the doubt was formulated as follows: “Whether there is proof nullity of marriage in the case due to defect of a new act of the will on the part of the woman respondent in convalidating the marriage (can. 1156, §2; 1157).” c) In fact, such a formulation of the doubt is incorrect for another reason, because it cites only the canons of the present Code of Canon Law; but the marriage in question was celebrated under the 1917 Code of Canon Law, that is to say, in accord with the norm of c. 1099, §1,1o of that law, and this canon obliges all persons baptized in the Catholic Church to observe the canonical form in contracting marriage; and this form is established in c. 1094 of the 1917 Code: “Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either of them and at least two witnesses ...”
Because the Rotal Turnus had confirmed the sentence rendered at the first grade;
because the Supreme Tribunal of the Apostolic Signatura has granted a new proposition of the cause in the case, we must now proceed before this Apostolic Tribunal according to the norm of c. 1640 of the Code of Canon Law considered together with articles 267, §§2 and 3; 293, §2, of the Instruction Dignitas connubii;
having seen the appeal of the respondent against the affirmative part of the sentence at the first grade, that is, against the ground of “defective convalidation”;
having seen the concession of the Supreme Tribunal of the Apostolic Signatura of a new proposition of the cause concerning the existence or not of the convalidation of matrimonial consent on the part of the woman respondent;
The present Rotal Turnus should determine the doubt according to the only ground that was appealed and according to the concession of the proposition by the Supreme Tribunal of the Apostolic Signatura given concerning the existence or not of the convalidation of matrimonial consent on the part of the woman respondent. Therefore, the doubt was determined under this formula: “Whether there is proof of nullity of marriage in the case on the ground of defect of convalidation of matrimonial consent on the part of the woman respondent.”
However, the petitioner could appeal in the future against the grounds negatively dismissed in the first grade of jurisdiction, that is, against the defect of discretion of judgment and against the defect of the convalidation of consent on the part of the same petitioner.
16. The parties first contracted a civil marriage and three months later they celebrated a religious wedding.
The marriage lasted several years and several children were born of the union. The breakup of the marriage must be attributed to the infidelities of the petitioner, who also sought a civil divorce and then married his lover. However, the respondent, who is a very devout Catholic, preserved conjugal fidelity, because “if I didn’t feel I was married I would have done the same thing he did.”
The woman respondent strenuously opposed the declaration of nullity of the marriage and did not understand, “what I might have said in the (preliminary) deposition that I gave that might make anyone assume that I did not take the vows seriously.” And she added: “If I had not thought that in order to be truly married to my husband Brian I needed to be married in the church, I would not have taken the vows.”
The woman repeated: “I took the vows seriously and thought they were valid when I made them, just as I consider them to be valid now.” And besides, “There was no pressure from any source to marry within the church. The decision to do so was totally ours.”
The woman evidently still considers herself validly married in the Church.
17. It is evident from the acts that the woman had loved the petitioner very much. She said: “I mean, I was so enamored with this guy, you know, he was my whole life.” And the brother of the petitioner fully confirms this: “She had an incredible crush on him but he did not with her. He did not reciprocate.”
The woman distinguishes quite well between a civil and religious marriage.
She argues that she was fully aware of the marriage that was celebrated before the Church: “I have never stopped loving my husband ... Because we were married in the Church, I never felt that I could remarry.”
In fact, in celebrating the religious marriage, “Fr. Concessao had us say all our marriage vows again and blessed us. I mean they were the same words that the other man had asked us. Except, he blessed us and then we could go to communion and stuff.”
To the question of the judge: “Did you mean them when you said them again?”, the respondent replied: “Yeah. I wouldn’t have said them otherwise. I mean I would have done it twice if I didn’t mean it.”
Note the manifestation of the true matrimonial consent of the respondent, although she had to add: “As far as I was concerned, I was already married.”
18. The respondent repeatedly confessed that she wanted to be Brian Cabrini’s wife; and she in fact states that she had intended to accept conjugal duties in both ceremonies, civil as well as religious: “What Fr. Concessao would do in the Church was to sanctify our marriage vows. Seeing that Brian was going to be posted overseas, we wanted everything ‘taken care of’ in case he was killed so that we could meet each other in heaven. In both the ceremonies of marriage I had with Brian, I never had any reservations about the permanence of the vows I was taking or that I could ever get out of the marriage.”
The woman reports that she had decided together with her spouse to enter into a canonical marriage after they had celebrated the civil ceremony both because Brian was going to be posted overseas where a war was being fought, and because they wanted to avoid any conflict with the man’s mother: “We wanted to be married because he was going to go. And she didn’t want him to marry me ... So we went and we got married at the justice of the peace ... Then when he was supposed to go overseas, that’s when we went to Fr. Concessao ... because Brian’s mother didn’t want us to get married ... I was going to marry this man. I had a ring from him. We had talked about it. We wanted children. We wanted to be together ... we wanted to get everything straight.”
19. The woman’s conviction that she had contracted marriage twice does not stand in the way of the validity of the religious marriage: “I felt I was his wife in the time that we were married by a justice of the peace, and the same words that the justice of the peace said to us, were the exact same ones Fr. Concessao said. So to me it was that, I was just kind of doing it all over again.”
The distinction of the religious marriage from the civil marriage has been expressed by the respondent many times and in various words: “It just seemed to me that it just straightened all out”; “it gave sanctity to the vows we had made.
And kind of to me I thought, ‘Well, you must love me a lot. You’re marrying me twice’ ... it made it all straight with everybody ... with God, ... with everybody ... my father was happier, because they’re very Catholic ...”
The woman knew that “the approval of the Church” was lacking in the civil marriage. She defined the religious marriage: “Just like the frosting on the cake.” And still: “At the time we wanted the marriage sanctified by the Church as my husband Brian was about to be sent overseas to fight in the war.” For, “seeing that Brian was going overseas to fight, we wanted everything ‘taken care of’ in case he was killed so that we could meet each other in heaven.”
20. The religious celebration, was in fact, sought out by both parties, and the respondent even asked for permission from her Pastor: “We went to Fr. Concessao ... I had to get a dispensation from our parish of Our Lady of Hope,” and she even signed the documents of the matrimonial process: “We filled out some papers.”
Juliana Brown diligently recalls the absolutely private ceremony: “He made arrangements to be married on a date that ... Father could marry us, in the little chapel. There in St. Joseph. And my sister and her fiancé stood up for us.”
According to what we have recalled in the law section, the nullity may be proven if a party has really not given or received the true matrimonial consent at the moment of canonical celebration, because he/she had remained content with the consent already given during the civil ceremony, or if a party consciously simulated, refusing to present the consent at that moment and unwilling to recognize any efficacy and validity to the canonical ceremony.
The woman, as we have seen, really gave and received a true matrimonial consent at the moment of the canonical celebration: “I wouldn’t have said them otherwise. I mean I wouldn’t have done it twice if I didn’t mean it.”
The woman, therefore, was not content with the consent already given in the civil ceremony, but she again, that is, “twice,” gave consent. Nor did she consciously simulate, but she deeply loved the petitioner, she freely manifested her consent “twice” and acknowledged the full efficacy and validity of the canonical ceremony, as it has emerged from all of the acts of the cause.
Therefore, one cannot say that the respondent fought for the validity of the civil marriage, as the sentence of the first grade stated erroneously based on a Rotal sentence coram Rogers: “A person who not only is unaware of the invalidity of the prior marriage but really fights for its validity is that much more certainly prevented from positing a new consent.”
Also the Rotal sentence of the second grade did not reach a correct conclusion: “If indeed, while the woman fights, and even strenuously, for the validity of the civil bond, then there is absolutely no possibility for arguing that she had given a new consent in the canonical celebration, which was intended by her at the most as a shadow only to simply confirm the civil union she had celebrated before.”
Therefore, it is not possible to accept the affirmation of the same sentence: “... the mind and the will of the woman was altogether extraneous and foreign to marry the man, because she thought that she was already married.”
21. In fact, the woman sincerely believed that she was validly married to the man already on the day the civil marriage was celebrated. But, she added: “I quite frankly considered myself married to him from the very moment that we had any sexual activity, which was about a month and a half before we were married.” She repeated this statement before the judge: “... I honestly, truthfully felt married to Brian from the time that we were intimate.”
The woman, without any knowledge of canon law, wanted only to signify by those words that, by their very first sexual intercourse, she considered herself firmly joined to the man she loved, as if united in marriage. Certainly not united by a civil union, “which she in fact contracted before a civil official,” as the Rotal decree erroneously interpreted the woman’s confession.”
In celebrating the religious marriage, the woman certainly had the intention at least “of doing what the Church does,” which is sufficient for a contractant to enter into a valid marriage before the Church
A distinction seems to have been made by the respondent between a civil marriage and a marriage before the Church, as if she had not manifested her marital consent during the religious ceremony: “I’ve stayed and gone along with the Church’s rule because I felt I was married ... first he marries me then he gets sanctified by the Church”; but she notes that the same words of conjugal consent were expressed in both ceremonies implicitly asserting that she had expressed the same words of the conjugal consent also before the sacred minister: “Fr. Concessao had us say all our marriage vows again and blessed us. I mean they were the same words that the other man had asked us. Except, he blessed us and then we could go to communion and stuff.”
In her observations after the publication of the acts, the woman declares that her true marriage happened before the Church, and this proves that she really gave her consent for the marriage before the assisting priest: “The church marriage was the real marriage”; and she shows her will to celebrate the canonical marriage because she took the initiative: “His mother did not make the arrangements. We went in person, and spoke to Fr. Concessao ... I prepared for marriage.”
The woman also declares in candid words that she chose to celebrate the marriage in the church: “It’s not true that it was Brian’s mother’s insistence that we got married in the Church.”
22. The principal question concerns the intention of the respondent in the act of the canonical celebration, because it appears that, for her, her marriage was present already in the act of the civil celebration, and in fact she intended to give herself to the man when she had the first sexual intercourse with him: “I honestly, truthfully felt married to Brian from the time that we were intimate ... I was already married.”
She confessed to the interviewing judge that she had not elicited a new consent; according to the woman, the religious rite had completed the act performed before the civil magistrate: “Just like the frosting on the cake.”
However, the will to elicit the act with knowledge and awareness is evident from the concise description: “I remember sitting down in this little room. You go in St. Joseph’s ... We came back, we signed these papers that he had us fill out ... We discussed getting married in the Church. He had us fill out papers. We signed them. He explained what we were signing. That’s when we made the appointment to get married. Approximately two weeks later, we got married.”
Both noted something new after the canonical celebration of the marriage, because it was only after the wedding was celebrated in the church that they established their cohabitation and went on a honeymoon: “We took a week and a half honeymoon together after the Church marriage ... we had no honeymoon after our civil marriage.” “So it had to be that we got the little apartment, probably in May.”
In fact, Juliana had understood the Christian meaning of the celebration of marriage: “I would have encouraged him as strongly as possible, to go and get married in the Church, ... the approval of the Church ... if you weren’t finished and married in the Church, and something happened to him, where would he be? I couldn’t be with him”; and she gave the wedding ring to the man only during the religious celebration: “I went and bought Brian the wedding ring, and that was the first time he wore the ring, when I put it on his finger.”
23. The defect of matrimonial consent on the part of the woman at the moment of the canonical celebration of her marriage is not proven from the acts of the cause.
a) First of all, there is no judicial confession of the simulating party. The woman never confessed that she did not want to renew consent. For, the woman wanted to celebrate the marriage with the man she loved before the Church; she freely expressed her consent before the priest.
The explanation of the second instance sentence of the Rota in support of its own thesis concerning the absence of a true consent is that the woman did not give, according to the judges, a new, that is, a renewed consent. Nevertheless, in each case the consent was truly present at that time of the mutual giving over, because it would have been expressed in the liturgical formula, and no reason is given for considering its exclusion through a positive act of the will of the woman. No reason in fact is put forth for asserting such a tenacious adherence of the woman to her consent given already in the civil ceremony so that she would have felt compelled to feign and to exclude her consent during the canonical wedding. One could think of this in the case of a non-Catholic or non-religious person, who does not want to submit self in any way to the governance of the Church. However, in our case, the opinion of the woman concerning the integrity and validity of a merely civil marriage is only a simple error which did not in any way determine her will.
The words of the woman used before the judge express in popular language simple “feelings” of a person who was completely devoid of any knowledge of canon law. Her understanding of the origin of the marital bond from the sexual relationships she had, cannot be accepted by us as a juridic fact; nor her understanding of the true marital affection arisen from a mere civil celebration.
b) There is no extra-judicial confession on the part of the one simulating.
The man knows nothing about the exclusion of consent in the woman at that moment. The man spoke of some formality in accepting the religious marriage, in order to confirm the civil ceremony, but he knows nothing concerning the woman’s intention: “I was going through this marriage in the Church because it was part of the formality and it was to please my mom and dad ... It was just something that had to be done ... I did not consider that a new union was created. .. I felt that the Church service confirmed the civil ceremony ... I have no idea how my former spouse felt at the time.” The woman never confessed to her spouse, throughout their marriage, that she refused internal assent while she was pronouncing her matrimonial consent in the canonical form.
The witnesses are not able to report anything about the intention of the woman.
One witness expresses only his personal opinion: “I don’t think it meant one thing to her,” and in fact the same witness reports that Juliana was stubborn in her will to marry Brian: “I think her main thing was marrying Brian.” The wife of that witness also spoke of the same will, although she had known her only after she had been married: “I’ve heard that she wanted to marry Brian and she made up her mind that’s what she was going to do and she’d do it any way she could.”
Another witness, one of the petitioner’s siblings, who was fourteen years old at the time of the wedding, reports with utmost honesty, that he had never spoken with the respondent concerning the significance she had attributed to the religious celebration of marriage, and he thinks that the customs of that age had played an important role in the choice of the religious celebration after the civil ceremony had already been performed.
The witness Frank Samure also reports that the respondent was firm in her intention to marry the petitioner: “She also said that she was not going to wait the length of time to get married that Brian wanted ... I know she became pregnant on purpose ... she was not going to wait until Brian had completed college to get married.”
Another witness only adds general information concerning the circumstances of place and time in which the parties celebrated their marriage.
In fact, the woman herself states: “... when I married my husband 41 years ago, I did so because I loved him, I did so in good faith. I still care for him and consider him my husband.” Many times the woman affirms that she wanted to renew her matrimonial consent: “I was doing it over again,” and “in both ceremonies of marriage I had with Brian, I never had any reservations about the permanence of the vows I was taking...”
c) There are no proofs in support of any reason proportionate to the denial of consent.
d) The circumstances militate in favor of the validity of the exchange of consent.
Both parties were Catholic, educated in Catholic schools, from religiously observant families. The premarital instruction of the parties was conducted by a priest truly expert in pastoral practice, who was strictly observing the canonical regulations.
The marriage lasted several years and was blessed with the birth of several children.
Therefore, the will of the woman respondent to marry is quite clear; thus whether the case is examined under the species of convalidation, or, and this is more correct, judged under the species of total simulation, there is no proof of a defect of consent, because Juliana intended to give herself to the man as his wife in the celebration before the Church, and because she considered herself united to the man already at the time of their civil marriage, such an intention should be considered as an implicit consent, and in fact actual, to enter into the marriage before the Church.
Having explained everything both in law and in fact, We, the undersigned Auditors of the Turnus, sitting for the Tribunal and having only God before our eyes, having invoked the name of Christ, decide, declare and definitively sentence responding to the proposed doubt: Negatively, that is, there is no proof of nullity of marriage in the case on the grounds of defect of convalidation of the matrimonial consent on the part of the woman respondent.
Thus we pronounce and also commit to the local Ordinaries and administrators of the Tribunal, to whom it pertains, that they communicate this Our definitive sentence to all parties, who have interest in this case, with respect to all effects of law.
Given in Rome, at the seat of the Tribunal of the Roman Rota on 19 July 2007.
Kenneth E. BOCCAFOLA
Roman Rota, Decision coram Yaacoub, “Defective Convalidation,” 19 July 2007, CLSA, Roman Replies and Advisory Opinions, 2008, 24-54. English translation by Rev. Augustine Mendonça, JCD. Translated and published with permission of the Dean of the Roman Rota.