From a reader…
QUAERITUR:
If two Catholics marry, have children, divorce, and then successfully obtain a decree of nullity, are the children then considered illegitimate in the eyes of the Church?
This is a concern regarding an acquaintance of mine who I am trying to encourage to come back to the Church.
I am glad this question came up. It is good to clarify this once and for all.
Even in the modern age there are cases in which a child is conceived before marriage and the parents then hastily marry to make sure the child is “legitimate”. Years later, after a divorce and a nullity case has been presented, one parent strenuously objects to the decree: “Annulment? The Church is making my child into a bastard!”
That isn’t, of course, the case, and that must be explained.
And one must, at all costs, resist asking in return: “Where was your concern about ‘legitimacy’ in the back of your VW Minibus with your girlfriend?”
Here’s the deal.
Both the outdated 1917 Code of Canon Law (and the old Catholic Encyclopedia at New Advent) use similar language as in can. 1137 of the current, 1983 Code. Can. 1114 of the 1917 Code states,
“Those children are legitimate who are conceived or born of a valid or putative marriage…”
Even though a marriage could later be declared null, at the time of conception the marriage was putatively valid.
Children born in these circumstances have legitimate status, which cannot be taken away from them.
The current, 1983 Code places no restrictions on children born to unmarried parents. I am sure that the Eastern Code is the same, though I don’t have the references to hand.
A larger question is, why is “legitimacy” a concern? Are children who are born to unmarried parents somehow less important, less worthy?
The former restrictions that were in place were, for the most part, concessions to secular society which may have been otherwise scandalized. I suspect that they also had to do with names and inheritance, etc.
Would we be in a better place today if society were we still scandalized by pre- and extramarital sexual activity? Such is the new norm. Not only. All manner of perverse activities are the new norm and, if you don’t agree to call them normal and even good, then you are hissed down and marginalized.
But I digress.
Our moral rejection of such pre-marital and extra-marital should not descend upon the innocent children born of parents who sin.
Now, before someone jumps in to say “But Father! But Father! Therefore, by your reasoning, we should never punish babies of less-than-sanctioned unions by not baptizing them! And… and… you hate Vatican II! ”
That, however, is a different question and it won’t be a matter of discussion here. This was about legitimacy.
No, really.
The moderation queue is ON.
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The Eastern Code has no corollary to c. 1137. So, the term is not even found in that Code. Legitimacy is entirely a legal matter. The law can determine what it is and what it means, not individual citizens or Catholics. Nevertheless, it is relatively common for people to say that a declaration of nullity will make children illegitimate. No, actually it will not. It is really as simple as c. 1137. If an individual wants to make up his own definition of “legitimacy” that’s fine. But, the Church’s definition is what it is.
Dan
The concept of legitimacy was also relevant for suitability to ordination: illegitimacy was an impediment. [That’s all gone.]
Surely you’re right, Father. Legitimacy was primarily a matter of concern for inheritance law. As such it was always more important to those with property than to the poor, right up to and including aristocrats and royalty where legitimacy effected the inheritance of titles, power and authority as well as property.
Culturally it is almost ignored as a concept now in the West, being neither an impediment to political office, contracts of marriage or anything else. But for those to whom it does matter, as you stated annulment has no effect on the legitimacy of children of the invalid union.
“Are children who are born to unmarried parents somehow less important, less worthy?”
This totally doesn’t bother me now, but it was something that really bothered me when I was nine and my mother divorced my father, and then bothered me more when their marriage was annulled a year or so later. I’d heard from several people that my parents’ divorce and annulment made me, my brother, and my sister illegitimate, and I guess the word “illegitimate” has such negative connotations that the way they flung it around, it definitely made me feel like it reflected on me, as if it made me less of a person — and all this in an already very painful time of my life. And then I was even angrier about the divorce because of it. So I wish I’d had a clear answer like this twenty-five years ago! Would’ve helped tremendously.
Fr. Z, as usual, you’ve taken a thorny subject and crystallized the discussion, making the issues clear. Thanks for all you do!
Thanks for a lucid explanation (that was how I’d heard it, so I was glad not to have any new confusions today).
I wonder: if/when we set out to futher define “rights of children” that make binding claims on each parent and on society’s treatment of the marriage and the family, including a moral obligation to protect those rights civilly, will we not need “legitimacy” as a category for determining who holds what obligations?
I raise this more with a view to thinking what “past” things may yet prove needful in present and future efforts, than to trying to describe the past; but it seems to me that “legitimate” parentage means that specific parents have conferred specific rights on that child, a thing parents *should* care about doing for the sake of the child?
It seems to me that an underdeveloped (or radically atrophied) sense of the family’s concrete meaning and the importance of the civil effects of marriage and parentage drained “legitimate” of most of its concrete meaning, leaving only the “stigma” explanation. Really, of course, exactly the opposite *should* have happened: we should constantly be workign to erase the “stigma” for children while preserving and reinforcing the real claims that marriage and parentage give children (and thus married parents) against family, church, and civil society.
Am I way off base, here?