ASK FATHER: Does a declaration of nullity mean a marriage never existed?

From a reader…

My diocese’s website says, “A declaration of nullity does not say that the marriage never existed,” yet the site also says that a declaration of nullity means “that the marriage was invalid from the moment of the wedding.” These statements seem contradictory. Can it be the case that the marriage both existed and was always invalid, or is one of these statements in error?

The Church refers to a marriage which has been declared null as a “putative marriage”. There was something that resembled a matrimonial covenant, but, in fact, there was really no marriage. Sometimes even well-meaning people speak of the work of an ecclesiastical tribunal as dealing with the sacramentality of marriage, and determining whether or not a specific marriage was sacramental. This is incorrect. Tribunals examine sacramental marriages (marriages between two baptized persons) and natural marriages (those marriages wherein at least one of the parties is non-baptized).

The question before a tribunal is: “Has this marriage been proven to be invalid because of [ENTER SPECIFIC ALLEGATION(S)].”

Let’s not say that the diocesan website is in error, but it is certainly unclear.

A declaration of nullity does say that what appeared to be a marriage for however many years, really wasn’t a marriage. In declaring it to be invalid, the Church does not erase history. There was something there that had the appearance of a marriage. People of good faith were right to treat it as such. If both parties, during the course of the common life, truly thought themselves to be married, then, all things being equal, [read carefully] they were not guilty of the sin of fornication when they engaged in sexual relations with each other. Children born to such a putative marriage are legitimate. This status is not affected by a subsequent dclaration of nullity (can. 1137). Any contracts entered into by the spouses of a putative marriage as spouses remain in effect (subject to the arrangements of the civil law, can. 22).

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14 Responses to ASK FATHER: Does a declaration of nullity mean a marriage never existed?

  1. Nicolas Bellord says:

    Is there not a difference between a marriage that is void ab initio and a voidable marriage? The former is where for instance there is bigamy or incest and the latter where for instance there was force. In the former there is no marriage even putative but in the latter there is a putative marriage which can only be voided at the request of one of the parties. At least that is I think the UK law on nullity which was modelled on Canon Law.

  2. Peregrinator says:

    Tribunals examine sacramental marriages (marriages between two baptized persons) and natural marriages (those marriages wherein at least one of the parties is non-baptized).

    I don’t believe a tribunal has the authority to examine a natural marriage between two people neither of whom has ever been baptized. The Church has jurisdiction over all the baptized and over the unbaptized in their relations with the baptized, so the Church would not have jurisdiction over a natural marriage between two unbaptized people.

  3. acricketchirps says:

    It would seem to me then that two men could not have their so-called marriage annulled since they did not even appear to have marriage which people of good faith could treat as such. Would they be free to walk away from one another, (go to confession), and then contract a genuine marriage?

  4. Volanges says:

    Peregrinator, the Tribunal examines those marriages on two occasions: when someone who is divorced wants to marry a Catholic and when someone who is divorced and remarried wants to be baptized or received into full communion.

  5. Volanges says:

    acricketchirps, the only people who require a decree of nullity (an annulment) are those who were presumed to be in valid marriages. Two men married to each other do not enjoy such a presumption from the Church.

  6. Peregrinator says: I don’t believe a tribunal has the authority to examine a natural marriage between two people neither of whom has ever been baptized. The Church has jurisdiction over all the baptized and over the unbaptized in their relations with the baptized, so the Church would not have jurisdiction over a natural marriage between two unbaptized people.

    It seems to me the Church would have jurisdiction if one of the non-baptized parties to the natural marriage wants to get involved with a Catholic. In that case, there is a baptized person involved, and the question of the non-baptized party’s marital status would have to be resolved.

  7. Gerard Plourde says:

    Dear Nicholas Bellord,

    The concept of voidable marriage exists in the civil law to accomodate the limited areas of civil law in which no valid civil mariage occurred and a marriage is declared null rather than a divorce granted. As you correctly state, degrees of consanguinity would bar marriage ab initio (In the US at least, the church would follow the constraints of the civil law and not allow marriage). The case of nonconsent is different in the two systems. In civil law, later consent would correct the difficiency. However, because in the US, the Marriage Tribunal only becomes involved once a decree of civil divorce has been granted, a clear case of non-consent at the time of the ceremony would also render the Sacrament void ab initio becase it lacked the requisite intent and the marriage would be declared null. Is it also the practice in the UK that a party seeking annulment must first obtain a decree of civil divorce?

    You do raise an interesting hypothetical question, though. Assuming that the couple remains intact, does not seek civil divorce and never asks that the Church determine the validity of their marriage bond does later consent supply the requisite intent to make a marriage that lacked it when celebrated to retroactively make the sarcrament valid?

  8. joan ellen says:

    FWIW department: I doubted that my marriage of 43 years was valid. My husband is gone now over 11 years…and now I know without a doubt that our marriage was as valid as valid could be. A most comforting realization. Just saying. Do not mean to be off topic or to take away from the tone in the well said above comments.

  9. Nicolas Bellord says:

    Gerard Plourde: Yes in England & Wales, at least, the Church requires you to get a civil divorce before you apply for an annulment. I think the idea is that an annulment process before a civil divorce might cause some sort of confusion when getting the civil divorce to do with evidence or something.

    Interesting point about voidable marriages. Is not a voidable marriage sacramental and valid until it is declared void? Perhaps though when both parties are reconciled to the idea of continuing a marriage there could be a conditional marriage like conditional baptism or a renewal of vows?

  10. Nicolas Bellord says: Yes in England & Wales, at least, the Church requires you to get a civil divorce before you apply for an annulment.

    How is this not a scandal?

  11. Paul M. says:

    Nicholas Bellord said: Is not a voidable marriage sacramental and valid until it is declared void?

    No. If the reason that caused the marriage to be “voidable” in the secular system is a reason that would render the marriage invalid under canon law, then the marriage never existed.

    The secular system and the canonical system are different here. The secular system allows some kinds of unlawful marriages to exist so long as someone does not retroactively cancel the marriage. This is the “voidable” marriage. But in canon law, there is no such thing as a retroactively cancelled marriage. It’s either a marriage that existed at the exchanging of vows (valid) or it’s not (invalid).

    Granted, some canonical marriages can be ended for reasons other than death; for instance, the Pauline and Petrine privileges. But those terminate a marriage that existed. They do not retroactively cancel the marriage such that it never existed, which is what happens in the secular system for a voidable marriage.

  12. Daniel W says:

    Paul M, interesting but not quite sufficient.

    The word marriage is used for two distinct realities related as cause and effect. Marriage refers in one sense to the rite or exchange of vows and in another sense to its effect, the marital bond and office. That is, marriage refers in one sense to the joining and in another sense to the join. (Note that you are incorrect to say that the marital bond/office exists AT the exchanging of vows, it only comes into effect afterwards (usually immediately afterwards).

    It is a little simplistic to say that a marriage in canon law is either valid or invalid. Some attempts to marry are simply invalid. However other marriages (in the sense of the rite) are adequate in terms of consent, but something else has been overlooked. These marriages can be convalidated and in some cases this involves “the retroactivity of canonical effects” (c.1161).

    If a marriage is invalid because of divine law, it is “simply” invalid – (ie a marriage attempted between two men, if one of the parties is already married, or between parent and child.) In this case not only is there no marital bond (marriage in the sense of the permanent effect of consent) but there was no real marriage even in the sense of the cause (consent).

    If however a marriage is conditionally invalid because of an unknown impediment that can be dispensed (oops: we didn’t realise we were cousins), then the marriage is not simply invalid, it is only conditionally invalid: ie. it needs to be validated. The marriage (in the sense of the rite) is real but the effect is delayed. There are then two possibilities: if the couple have not since withdrawn marital consent then the marriage (their consent) can be convalidated (sometimes even without them knowing!). However if one or both revoke their consent before convalidation (c.1162), then this effectively voids their marriage (in the sense of marital consent) retroactively.

    It is unjust to compare marriages where the consent was perfectly adequate but a little bit of paperwork was overlooked with attempts at matrimony that are invalid because of divine law (parent/child, polygamy, same-sex etc). Its like comparing the betrothal of St Joseph and Mary (a true marriage which was awaiting validation) with Elton John’s wedding ceremony.

  13. Paul M. says:

    Daniel W, I appreciate your message, but I believe you are interjecting into the consideration of valid/invalid the idea of good faith putative marriages. Father Z discussed it above. There is no moral issue with respect to fornication/concubinage when a couple is in what appears to be a marriage but really is not one.

    I also think you are confusing valid consent with valid marriage. Consent, by itself, is not sufficient for marriage. The parties must also be free to marry and must satisfy the formalities required by law. If those two are lacking, but the consent endures, then there is no marriage, but the Church can dispense the merely ecclesiastical impediments or supply the formalities after the fact. The marriage still will not have existed until the Church takes care of those matters, even if the Church decides to extend its effects retroactively (radical sanction).

    Further, I’m not sure what you mean when you said that the betrothal of Saint Joseph was “awaiting validation.” His kiddushin with the Blessed Virgin was a true marriage that needed no validation. It simply was never consummated. Perhaps you could clarify what you mean there.

  14. Daniel W says:

    Paul M,
    I think we are using “marriage” differently. Marriage translates lots of realities: matrimonium, nuptiae (wedding), sponsalia, kiddushin, etc.
    We confuse people when we restrict the use of the word “marriage” to only mean the reality of matrimonium in facto esse when it clearly means a variety of meanings including matrimonium in fieri.
    The term putative marriage is even more fraught with problems as canon law at present does not have different terms for matrimonium putativum, sponsalia putativa, and other very different terms.

    Kiddushin is a case in point. It is a true marriage in the present awaiting a future condition where the couple are spouses but not to engage in intercourse until the condition is met. Although it is not allowed in current law, such marriages used to be allowed for Catholics – “I marry you now as long as you return from the war within three years.” These true marriages are different from conditional engagement (I promise to marry you if you return from the war within three years). They are also different from marriage conditional on verification of a condition in the present (I marry you assuming you are a virgin).

    Perhaps the analogy of a plant will help. Saying that a seed is not a plant is not quite true as the plant is contained in the seed as the effect is in the cause. A plant seed that is awaiting germination is very different from an ovum that fails to be pollinated. In marriages such as kiddushin, a true marriage is present in a marriage made in the present but where the spouses are awaiting RATIFICATION through fulfilment of a future condition (I marry you now on condition that we celebrate the homecoming within a year). The marriage was ratified by fulfilment of the condition. I agree that I was stretching the use of validation in applying it here. The problem is that the term ratification is now restricted only to apply to baptism. However, the concept of a true marriage awaiting ratification is much broader than is allowed for Catholics at the present time. For example, one used to be able to marry on condition that the marriage COULD be consumated. The spouses were truly married but if intercourse proved impossible for them (relative impotence) then the marriage was void. Nowadays a couple cannot marry based on this future condition and so marriages where permanent relative impotence is discovered to have existed from the time of marriage have to be declared null.