Case LXXXIX: Error and Matrimonial Consent

Case.—From Paul, pastor, Cecilia asks advice in regard to her marriage with John, the father of her three children. She makes the following statement of the case: Cecilia has been always a Catholic. John, once a Lutheran, was received into the Catholic Church November 25th, 1905, by a priest who administered conditional baptism. In the month of August, 1906, Cecilia and John were united in marriage by a civil magistrate, and to the union there were born three children who have not been baptized. Cecilia feared to go to a priest because John had two previous matrimonial experiences. In the first case, March 10th, 1900, he went through the outward ceremony of a marriage with Anna before a squire, because the father and brother of Anna, a baptized Lutheran, who was soon to be a mother, threatened to shoot him if ‘he did not marry the girl. John declares on oath that before the ceremony he made known to three friends, still alive, that he had no intention of contracting a real marriage. After the ceremony, such as it was, he departed and has not since that time seen Anna, who obtained a divorce on the ground of desertion, and is now living with a husband in California..

Again, on June 10th, 1903, he was married by a Lutheran minister to Letitia, also a Lutheran. John affirms that among Lutherans there was a “general understanding” that married people could be divorced for Scriptural reasons. Letitia was unfaithful. John obtained a divorce in the civil courts. Cecilia accepted the story in all details and married John as stated above, but feared to approach a priest. She and John now wish to receive the Sacrament and to have their children baptized and instructed by her pastor.

Paul, convinced that the two former marriages were invalid, tells Cecilia that all will be well as soon as he can receive authorization to absolve from the sin committed by contracting marriage before a civil magistrate, the sin being reserved to the Bishop in Paul’s diocese, in which also the marriage was contracted.

The chancellor of the diocese warns John that there can be no further proceedings until an examination has been made of the two former marriages.

Questions:

1. Did Paul act prudently in making his statement to Cecilia?

2. Is the sin of contracting or attempting to contract marriage, outside the Church, universally reserved to the Bishop?

3. When and under what circumstances does fear of a grave detriment invalidate the matrimonial contract?

4. What is to be held in regard to marriages contracted with some kind of “understanding” that divorce can be granted for “scriptural” or “statutory” reasons?

5. Will the Church sanction the marriage of John and Cecilia?

6. Should not Paul have said to Cecilia, at once and without hesitation: You cannot receive the Sacrament, and I will not baptize your children unless you cease to live with John, your reputed husband?

Solution:

1. Certainly Paul acted imprudently. Apart from the general rule that no priest should lightly and hurriedly decide serious cases of conscience, the case proposed to Paul called not only for serious consideration, but was one which clearly should have been brought to the attention of the Bishop of the diocese to be examined and decided by him, or by a judge appointed by him in union with the curia for matrimonial cases and in conformity with rules laid down by the “Instructio de Judiciis Ecclesiasticis circa causas Matrimoniales,” printed in the appendix (p. 262) to the Acta et Decreta Conc. Plen. Baltimore, III.

Even when a diocesan Curia Matrimonialis declares a marriage invalid, the Defensor Vinculi must appeal to another curia (Metropolitan). If both decisions are against the validity, the Defensor Vinculi may appeal to the Holy See, and either one of the contracting parties may appeal to the Holy See—which they were free to do from the beginning, if they wished. It is never allowable to contract a new marriage until two decisions have been given against the validity of former ceremonies. (See Instruct. sup. cit., especially par. 25 and par. 30.)

2.a. There is no general decree reserving in all parts of the United States absolution from the sin of contracting or attempting to contract marriage before a civil magistrate, but some bishops make this reservation in their dioceses.

b. By decree of the Third Plenary Council of Baltimore (n.n. 124, 128), the following sins with excommunication are reserved to the ordinary:

(1) Attempt to marry after having received a civil divorce.

(II) Contracting marriage or attempting to contract marriage before a non-Catholic minister.

3. If the law of nature alone be considered, acts done under fear can be voluntary, i. e., they can be done with deliberation. Unless the evil impending or threatened be so great as to deprive one of the use of reason, his acts under fear are voluntary simpliciter (i. e., he really makes up his mind to do the act) and involuntary secundum quid (i. e., under the circumstances he might not do the act).

To protect the freedom of a marriage contract, the Church by positive legislation decrees that marriage contracts made under fear of serious detriment shall be held for null and void.

Canonists and theologians unanimously hold that grave fear is a diriment impediment to matrimony when the following conditions are found:

“That it be inflicted (1) by an external and free cause; (2) unjustly; (3) for the purpose of contracting marriage.” (Sabetti-Barrett, de matrim. n. 905.)

In regard to John’s first venture:;

a. The marriage most probably was invalid ratione metus, for the evil threatened was unjust. The father and brother of the wronged girl could have had recourse to the processes of the law; but had not the right to threaten to shoot John, if he refused to marry the girl.

b. Apart from the question of threats made, if John really did not give consent, certainly there was no marriage. The testimony of disinterested and reliable witnesses would be accepted in ecclesiastical courts. But Paul, the pastor, could not proceed upon the assumption that this marriage was invalid. His duty was to refer this case to the bishop. “Spouses in matrimonial cases are subject to the bishop in whose diocese the husband has domicile.” (Instruct. sup. cit. par. 2.)

4. a. The answer to the fourth question is found in the decision given by the Roman Rota in the famous Castellane-Gould case. The decision was given February 8, 1915. It was published in the Acta Apostolicae Sedis of June 21, 1915. (Ann. VII, Vol. n. 11.) The practical consequences of this important decision, especially in regard to the marriage of non-Catholics, are drawn out in an article: “Are non-Catholic marriages valid?” published in the November, 1915, number of the American Ecclesiastical Review.

The principle on which is based the Rota decision for the validity of the Castellane-Gould marriage is the following: An error (false opinion) about the dissolubility or indissolubility of marriage does not invalidate the marriage contract, unless there be an explicit and absolute act of the will making this error and condition a part of the contract. “A condition against the substance of marriage must be brought into the agreement” is the expression generally used by canonists and theologians treating this question.

“An error concerning the indissolubility of marriage inhering in one’s mind and giving occasion to the contract... does not invalidate the marriage.” (Acta Apos. Sedis sup. cit. p. 304.)

“For a marriage to be invalid, an explicit will is required by which the contracting party intends simply and absolutely to exclude the perpetual bond.” (Ibid. p. 309.) Nothing will supply for the defect of consent; but the Rota declared that in the Castellane-Gould case Miss Gould had two intentions: 1st, to contract marriage; 2nd, to contract a marriage that could be dissolved by divorce. In such cases it is not easy to determine whether the marriage is valid or invalid. “It is a difficult matter to resolve the doubt.” (Ibid. p. 295.) “For there were two contrary wills: the general one, namely, to contract marriage as it was instituted by the Author of nature or by Christ, that is, perpetual and indissoluble; and another, particular one, by which a bond dissoluble because of adultery or other causes is intended” (ibid.). To solve the doubt, the Rota says, it is necessary to apply some rule by which we can determine which intention prevailed, and it adopted the rule laid down by Benedict XIV.: “In the case, the particular will prevails if a condition concerning dissolving the marriage because of adultery was expressly added; but otherwise the general will by which an indissoluble bond is intended prevails, in which the contracting party’s private error remains absorbed.” (Ibid.)

Hence: “The Church holds marriage among Hebrews, infidels, Greeks, Calvinists to be valid, unless the explicit condition of its solubility was made.” (Gasparri. See Amer. Eccl. Review, Nov., 1915, p. 582.) “The marriage of infidels, heretics and schismatics are valid, unless the contracting parties positively intend otherwise and outwardly manifest that they will contract none but a soluble marriage.” (Wernz cited ibid.)

b. Applying this principle to the case of John and Letitia, we must conclude that, granting that the marriage with Anna was invalid, this second marriage was valid, unless it can be proved that one was baptized and the other unbaptized, or that there was another invalidating impediment.

The “general understanding” would not invalidate the marriage unless an explicit agreement that divorce might be obtained was made a part of the contract (in pactum deducta).

5. John and Cecilia cannot obtain the sanction of the Church for their marriage if Letitia is still alive. Had there been no marriage ceremony but the first (with Anna, under threat of death) the Curia Matrimonialis might have given a declaration of nullity.

6. Paul should proceed very cautiously in giving advice to Cecilia: (I) For the baptism of the children all that is required is a reasonable guarantee that they will be brought up as Catholics. (II) In determining what should be said in regard to the separation of John and Cecilia, many things must be considered: a. Are they in good faith or in bad faith? b. Will an admonition from the pastor produce good results? c. Are John and Cecilia in such good dispositions and of such good character that one could rely on their promises to live together as brother and sister? d. Would there be scandal if they continued to live together, being known as man and wife? Paul should pray and seek counsel.