Case LXXXIV: A Marriage with Several Obstacles

Case.—Anna had during the life of her feeble husband Lewis repeatedly broken her marriage vow with the frivolous and irreligious Charles, who had even promised to marry her as soon as Lewis died. When Anna became a widow she desired to set her conscience at rest, and proposed to Charles that he either marry her, or cease all relations. Charles declined to marry her, and so she broke with him altogether. Then Anna received a favorable offer of marriage and intended to accept it. Charles, hearing of it, wanted from motives of jealousy to prevent Anna from becoming the wife of another man, and, seeking and gaining her favor again, devised a perfidious scheme. He knew that Anna from conscientious grounds would only marry in church, and he had repeatedly declared to her that for him the church ceremony appeared a mere formality and of no value; the only binding marriage for him was a civil marriage, one which, however, he was not willing to enter. Nevertheless, he consented to a church wedding. Anna, who doubted his honorable intentions, and had reason to fear that he would abandon her after the wedding and only occasionally live with her, told him and several friends that she would consent to the marriage on condition that Charles would lead the life of a married man according to the Catholic idea, and that this honorable married life should, for family reasons, begin after the approaching wedding of a daughter of Anna. Charles hesitated at first to accept the condition of married life, but finally gave his consent, even in writing. Thereupon the day was set for the ceremony. On the way to church Charles insisted that Anna promise upon oath that the copula was to take place in such manner that all prospect of having children was excluded. Anna was shocked at this proposition, but saw no escape, everything being ready for the wedding, so she complied, but for fear of disappointment she renewed mentally during the ceremony her previously made condition of honorable married life. After leaving the church Charles went his way, Anna returning home alone. On rare occasions Charles visited Anna, but declared, both in writing and verbally, that he had given only a feigned consent to the marriage, in order to prevent her marrying someone else. When, six months later, Anna’s daughter married, and thus the condition put by Anna and accepted by Charles, of living their married life together, was realized, Charles would not hear of it despite Anna’s pleadings, and so they came to a final break. Now Anna wishes to have her marriage to Charles under the conditions named declared invalid.

Question.—Quid ad casum?

Solution.—It appears from the facts stated, that several diriment impediments exist to the marriage between Charles and Anna, but their presence must be proved to establish the invalidity of the marriage. Not less than four impediments here come into consideration. Namely (1) that of the conditio; (2) that of the withheld or simulated consent (simulatio seu fictio consensus); (3) of the condition contrary to the nature of wedlock, and, finally, (4) that of crime. If even one of these obstacles can be proved with moral certainty, then the marriage in the case is null and void.

I. The obstacle of the conditio. Like every other contract, that of marriage may have a condition added to it. By a condition in the strict sense we understand an addition to the contract by which its obligations are held in abeyance until the future event of the condition takes place (conditio de futuro). Conditions of the present or of the past are conditions in the improper sense, since a marriage under such conditions either at once exists or not, according as the conditioned circumstance, although unknown to the contracting parties, either exists or does not exist. With the conditio de futuro, however, as long as the condition has not been fulfilled, marriage is not effected but simply remains in abeyance, for which reason the married couple have to refrain from conjugal intercourse until the fulfilling of the condition. If the condition is realized, the consent to marriage is valid and hence the marriage concluded; if, however, the condition does not materialize, then there is no marriage, and if the parties nevertheless wish to keep their union in existence, they must make a new marriage contract. Under a condition de futuro the contracting parties must arrange for the realization of the condition, must at least not impede its fulfilment. Should, however, one of the parties before the fulfilling of the condition enter unconditionally into a second marriage, then, on account of the obligation of waiting for the entrance of the condition, this marriage would be unlawful, yet at once valid, as the first conditional marriage is no marriage before the fulfilment of the condition. On this matter Gasparri (De Matrimonio, 3, cap. IV, parte II, n. 987 seq.) says briefly and plainly: A condition concerning a contingent future event suspends consent until the event is verified.... Therefore a marriage contracted under such a condition is meanwhile invalid and is, as it were, in suspense, since the consent bound to that condition has not yet been given and remains in suspense. Each party is bound to see to the fulfillment of the condition, or at least not to impede it.... A marriage, when the condition has not been fulfilled for any reason, vanishes through defect of consent, as is evident; but when the condition has been fulfilled, it is valid from the moment of fulfillment and then becomes a sacrament, although it is thereafter carried back by a fiction of law to the moment of celebration. It is to be remarked that after fulfilment of the condition, as most Canonists teach, a renewal of the consent, either privately or before the pastor and two witnesses, is not necessary.

In this case, Anna had added to her marriage contract with Charles the lawful and possible condition: “I take you as my husband if after the wedding of my daughter you will begin to live with me in honorable wedlock.” Charles consented to this condition. The marriage contracted under this condition is invalid if with moral certainty three things can be proved; namely: (1) That Anna before the marriage really imposed the condition actualiter. (2) That she never renounced actualiter the condition imposed, that therefore the condition at the moment of marrying continued virtualiter (a merely habitual condition would not suffice), and, (3) that the condition was not fulfilled. As is apparent from the facti species Anna is decidedly in a position to produce the threefold proof. For she published before the wedding the condition not only to her fiancé Charles, but also to some friends, who can testify to this fact. She never renounced the condition imposed, but renewed the same mentally during the ceremony. The condition, as already stated, was not kept. Hence the marriage may be regarded in the given case as null and void. It does not alter the case that before the fulfilment of the condition, sexual intercourse was voluntarily had between Charles and Anna. True, the law holds that the performance of the copula carnalis means relinquishment of the condition. Wernz teaches even positively: “One who, before a condition concerning the future has been fulfilled, consummates the marriage by freely admitted intercourse is presumed by a presumption of law and by the law itself to have renounced the condition.’ The same view is held by other weighty Canonists, such as Gasparri, Kutschker, Scherer, Aichner, and others. This presumption, however, was abolished by a decree of Leo XIII. “Consensus mutuus,” of February 15, 1892. Whether the abolition of this presumption may be extended to a condition de futuro of a contracted marriage, is not positively agreed upon by the Canonists, but several of them reply affirmatively to the question. Thus D’Annibale, with regard to the decree mentioned, declares: “As long as it is unknown whether the condition concerning the future exists or has existed, it is unlawful to consummate the marriage unless the spouses withdraw from the condition. But if in the meantime they have intercourse, today they are no longer presumed to withdraw from the condition and to contract unconditionally, even where the Tridentine decree is not in force.” The same is taught by Ballerini-Palmieri. That the presumption in question permits of a contrary proof is assumed by Leitner, who says “Sexual intercourse practised prior to the fulfilment of a condition between two persons, who gave a conditional consent to marriage, implies renouncement of the condition, unless the will to the contrary is positively present.” Similarly other authorities.

In fact, it is not clear why the copula carnalis should in itself be a renouncement of the imposed condition. Couples may practice unlawful sexual intercourse without intending or wishing to renounce the condition imposed. Cohabitation of itself is not to be regarded as relinquishment of the condition. We cannot assert, for instance, that the copula carnalis implies renouncement of the condition when this renouncement is expressly excluded. And again, if a doubt exists as to the intention with which the copula was practised, then the continuance of the condition must be presumed, if its revocation can not be proved. For in such case must be applied the rule in law: “In doubt, the condition of the possessor is the better one.” The condition, however, is in possession as long as renouncement of the same is not established. If, therefore, Anna can prove that she did not intend to renounce the condition by permitting the copula, but persevered in the same, then her marriage to Charles is invalid because of non-fulfilment of the condition. We may even suppose that Anna, far from wishing to renounce the condition, permitted the copula in order to move Charles to the fulfilment of the condition. Finally, it is also to be observed that the copula carnalis, in order to imply renouncement of the condition, must be practised more et affectu conjugali; however, this is not to be assumed in the foregoing case, because Charles, as we shall proceed to show, probably added a condition contrary to the nature of matrimony. That, moreover, Anna did not renounce the conditionis best seen in the fact that she continued to insist upon its fulfilment, and at last, upon the day when the condition was to be complied with, namely on her daughter’s wedding-day, broke completely with Charles and since then had no further sexual intercourse with him. There is hardly any doubt, therefore, that Anna’s marriage to Charles, because of the non-fulfilment of the imposed and accepted condition is null and void.*

II. The second impediment to be taken into consideration in the case is the withheld or simulated consent (simulatio sive fictio consensus). This exists if one or both of the parties conform to the exterior forms of contracting marriage, but inwardly have no thought of entering upon a true marriage, or indeed exclude all such intention. That a feigned consent can never produce a real marriage, is evident. Of course the lack of consent is difficult to prove in the external forum, but such proof is by no means impossible. This proof of simulatio and fictio may be shown

_ *In a quite similar case the Roman Rota decided some time ago for the invalidity of a marriage, a fresh proof that the consummation of marriage before the fulfilment of a condition does not imply renouncement of the same. from the cause of the simulation, also from the circumstances which preceded the marriage, followed it, or accompanied it. Now we know from the facts of the case that Charles, an irreligious man, detested any kind of marriage, particularly a church marriage, which he regarded as an empty ceremony and not binding, and only married the Catholic Anna in church to make impossible her union with another man. We may conclude, therefore, that Charles misused the church marriage, fro an extent at least, as a means for his concupiscence. As a matter of fact Charles abandoned Anna right after the ceremony, thereafter occasionally visiting her to gratify his passion. Charles’ hypocritical and deceitful intentions cannot be denied, and therefore, when in addition Charles declared in writing and verbally that he never intended a real marriage according to Catholic ideas, the proof of his feigned consent and therewith the invalidity of the marriage is well established.

III. In the third place there comes into consideration in our case the impediment of the condition against the nature of marriage. When on the way to church Anna was made to promise Charles that the copula take place in such manner as to prevent child-bearing, this was a condition contra bonum prolis. The fact of this condition is admitted by both parties and therewith the marriage is rendered invalid in the inner forum. For its invalidity in the external forum the condition imposed must be proved with moral certitude. For this are required argumenta, quae prudentem virum, attentis circumstantiis occurrentibus, certum reddere valent. It is accepted generally that an admission made by the parties to the marriage at the investigation, or even earlier, after consummation of the marriage, is not admissible as proof against the validity of the marriage. But certainly there may exist exceptions to this rule. Such an exception could exist, if the understanding was made under circumstances that exclude all suspicion of untruth. This appears to be the fact in our case. Charles despised Catholic marriage; for him the only valid bond was a civil marriage, and this he refused to enter. He cared nothing about the invalidity of the church marriage. From these circumstances we may conclude that a condition against the natural aim of matrimony was imposed, namely against the bonum prolis. Nevertheless the facts of the case as presented do not offer proof of this condition with moral certitude.

IV. There remains now the fourth impediment, namely the impediment of crime ex adulterio et promissione matrimonii, to be briefly considered. It is evident in our case that there was a complete material and formal adultery. Anna during the life of her lawful husband had copula carnalis perfecta with Charles. Both parties considered the intercourse adulterous. To the adultery was added on Charles’ part the promise of future marriage; but whether this promise was seriously intended is very doubtful with a man of Charles’ views. Therefore it may have been only a resolution or wish, which does not suffice for the existence of the impedimentum criminis. And even if a serious promise of marriage was made by Charles, it is not plain whether Anna accepted the promise. Hence it is not certain whether in the given case the impedimentum criminis exists. In the case before us the marriage is invalid because of the added, but unfulfilled condition, and because of the feigned consent. For the existence of the two other obstacles (pactio contra substantiam matrimonii, and impedimentum criminis) proof cannot be furnished.