Case XIX: The Marriage Tie

Applied correction from Woywod's opening insert: CASE XIX must be placed in the time before the "Ne temere" decree came into force, viz., 19 April, 1908. As regards the statement on page 80 about the marriage contracted against the bona essentialia of marriage the New Code in Canon 1086 says very plainly: "If one or both parties by a positive act of the will exclude marriage itself or all right to the conjugal relations or any of the essential qualities of the marriage (which are its unity, indissolubility and the primary purpose of marriage) the marriage is invalid."

Titus, without the least scruple of conscience, has changed his religion a number of times, for the sake of worldly gain. At present, however, he is back in the Catholic Church, and to all appearances, for good. It happens now that he ruins a poor Catholic girl, and she becomes a mother. She insists on his marrying her. He agrees, but on one condition only, namely, that they both go over to Calvinism first, and as members of the church of Calvin, get married. For, says Titus, in case this marriage turns out a failure, and we should wish to have it dissolved, we can get a divorce very easily in the Calvinistic church. And so it happens. They both become Calvinists, and as members of the Calvinistic church are married by the preacher. But the marriage turns out badly. Titus abuses the wife, until at last she is compelled to seek a divorce in the civil courts. The divorce is granted and the woman leaves Titus for good.

She remains single for some time, and then falls in love with a Catholic man, whom she finally marries before a civil magistrate. Some time after this she goes to the priest and begs to be received back into the Catholic Church, and to have this, her second marriage, made or declared valid by the Church.

The question is, What is to be done under the circumstances?

Answer.—In order that Lucy's second marriage, i. e., with the Catholic man, be a possibly valid marriage at all, before God and the Church, it must be proven that Lucy's first marriage, i. e., Calvinistic marriage with Titus, was invalid from its very inception. For if the first marriage was at any time valid and consummated, then it can not be dissolved, quoad vinculum, by any power on earth.

However, there are good grounds for suspecting that Lucy's first marriage, that is, her Calvinistic marriage with Titus, was invalid from the very start. The view non-Catholics take of marriage, namely, that for specified reasons it may be dissolved, quoad vinculum, does not necessarily render the marriage of non-Catholics invalid. For their prime purpose is to contract a real and true marriage. Their belief that marriage is dissoluble is only a concomitant error. But when the main purpose of the contracting parties is to contract a dissoluble marriage, then the marriage rights themselves, which constitute the subject matter of the marriage contract, and which are mutually transferred in marriage, are materially and substantially vitiated and destroyed. There is a real and substantial defect present in the contract, a so-called shameful condition which reaches into the substance of Marriage (Lehmkuhl, II., n. 688).

According to the Canon Law, the shameful conditions contrary to the substance of marriage, when incorporated into an agreement, render the marriage null and void. In like manner, the Instruction issued under Gregory XVI. to the bishops of Hungary, April 30, 1841, on mixed marriages, holds indeed for the validity, generally, of such marriages, notwithstanding the false opinion of Protestants on the dissolubility of marriage; still this same Instruction calls attention to the fact that the Congr. of the Holy Office, October 2, 1680, to the question: “Whether a marriage contracted between a Catholic woman and a schismatic with the intention of violating or dissolving the marriage is valid,” gave the following answer: “If these things were incorporated into the agreement, or if the marriages were contracted under that condition, they are null; otherwise, they are valid” (Denziger, Enchiridion, n. 1485).

In the case before us there is no question of a mixed marriage. But the grounds for its eventual invalidity are not to be sought for in its character of mixed marriage, as such, but in the false view of non-Catholics concerning the object and conditions of the marriage consent, which false view of Protestants may easily enter into and affect substantially the object and conditions of the marriage consent.

This was true in the case of Titus. He stated expressly that he wished to contract a dissoluble marriage. It was for this express purpose that he joined the Calvinistic church—that his marriage might be more easily dissolved in case he should, in the future, desire its annulment. There is no room, therefore, to doubt the invalidity of the marriage between Titus and Lucy. And consequently there is no room for questioning Lucy's ability to contract a valid marriage with the Catholic man and to be received back into the Church. As marriages of baptized persons before a civil magistrate, though mortally sinful, are nevertheless valid in most places, where the Tridentine Decree, "Tametsi," has not been published, this second marriage of Lucy to a Catholic, before a civil magistrate, was a true marriage before God and conscience, although mortally sinful, provided only Lucy and the Catholic man intended, at the time, to enter into a true and valid marriage contract, binding before God and in conscience. But the whole case should be brought before the Ordinary of the Diocese, who will name the conditions on which Lucy will be reconciled with the Church.

But if Lucy's marriage with the Catholic man before the magistrate was not looked upon by them as a real marriage, but only as a civil ceremony, prescribed by law, as happens in some countries, then, of course, Lucy's marriage to the Catholic, before the magistrate, was no marriage. The pastor should not lend his countenance to it, nor bless it, before he has laid the whole matter before the bishop. It is the bishop's office to determine the invalidity of Lucy's first marriage, with Titus, because that marriage had all the appearances of a valid contract "in foro externo" and before the public. Only after competent Church authority shall have declared it invalid can Lucy proceed to a second marriage. It will be necessary, however, to produce satisfactory proof of Titus' intention, when he married Lucy, of forming a dissoluble union only.