Supreme Tribunal of the Apostolic Signatura, Letter to the Archdiocese of Chicago concerning so-called “defective convalidations,” 17 December 2007.


Supremo tribunale della Segnatura apostolica

Prot. N. 1034/07 SAT

185/07 ES

Defective convalidation

19 December 2007

Your Eminence,

The Supreme Tribunal of the Apostolic Signatura has the task of promoting the correct administration of justice in the Church, of exercising oversight over the same (cf. artt. 121 and 124, n. 1, Ap. Const. Pastor bonus), and of safeguarding a correct jurisprudence (cf. art. 17, §1 of its Special Norms).

After studying some decrees issued by the Court of Appeals, Province of Chicago, and a sentence issued at first instance by the Metropolitan Tribunal of the Archdiocese of Chicago, on the ground of defective convalidation, this Apostolic Signatura considers it advisable to offer some clarifications that will enable both Tribunals to check the correctness of their jurisprudence and to judge such cases without error.

1. In these cases one must keep in mind the presumptions iuris which govern every marriage, namely:

* a marriage is presumed to be valid until the contrary is proven (cf. can. 1060);

* the internal consent is presumed to be in conformity with the signs or words used in the celebration of the marriage (cf. can. 1101, §1).

The application of these presumptions to a marriage celebrated in the canonical form lead to some conclusions:

* the consent expressed according to the canonical form must be presumed valid, until the contrary is proven;

* the proof of a defect of consent in view of a declaration of the nullity of marriage must therefore follow the usual criteria, taking into account the established Rotal jurisprudence that has developed secure models of proof regarding defects or flaws of consent.

2. Can. 1160 refers to the convalidation of a marriage contracted invalidly because of a defect in the canonical form. The prevailing doctrine does not consider said canon to regard also an attempted civil marriage or one attempted in a non Catholic rite, in those cases in which at least one party was bound to the canonical form. In fact, no judicial process is required for the declaration of nullity of such an attempted marriage. In any event, one must remember that in such a case a celebration in the canonical form is required.

3. The requirement of can. 1157 refers clearly to the convalidation of a marriage which is invalid because of a diriment impediment (cf. can. 1156, §1) and not to the convalidation of a marriage which is null because of a defect in the canonical form.

At times it is claimed that from the psychological point of view there cannot be a matrimonial consent when one does not know or at least suppose that the attempted marriage was null. In this regard, it is important to keep in mind that:

* psychologically it is sufficient to have a vague understanding that the attempted civil marriage or the one attempted in a non Catholic rite lacked some element which the Catholic Church considers significant;

* this sufficient understanding does not require that the parties know how to explain it in a technical canonical manner, nor does this sufficient understanding exclude the possibility that on the emotional level the parties continue to attribute some value (e.g., existential or in civil law) to the preceding union, for example, by celebrating its anniversary;

* nor is it required that the parties be able to explain in a technical canonical manner what happened in the celebration of the marriage in the canonical form; even when they use certain non technical expressions such as “blessing” to describe it, one must presume, until the contrary has been proven, that in the celebration in the canonical form consent was duly expressed and given;

* even when a party considered the celebration of the marriage in the canonical form to have no value, can. 1100 should be considered: “The knowledge or opinion of the nullity of a marriage does not necessarily exclude matrimonial consent.”

Your Eminence is kindly asked to share this letter with the Judges, the Defenders of the Bond, the Promoter of Justice and Advocates who work at the Court of Appeals, Province of Chicago and at the Metropolitan Tribunal of the Archdiocese of Chicago, and to see that both Tribunals follow these directives in handling such cases.

Taking the occasion to express to Your Eminence my sentiments of respect and esteem, I remain

Devotedly Yours,

Agostino Cardinal VALLINI

Prefect

Velasio DE PAOLIS, C.S.

Secretary




Supreme Tribunal of the Apostolic Signatura, Letter to the Archdiocese of Chicago concerning so-called “defective convalidations,” 17 December 2007, CLSA, Roman Replies and Advisory Opinions, 2008, 54-56.