Case XXXVI: Nullity of a Marriage Owing to Non-Fulfilment of an Imposed Condition

Silvia, when receiving the last Sacraments, confesses that in her younger days she had unlawful relations with her present husband Claudius, but also with one Ignotus, and that her relations with the latter had not been without consequences. A marriage with Claudius offering better prospects she led him to believe that he was responsible for her condition. Accordingly, on this condition, he married her, she declaring that he was the parent of the expected child. They have been married for many years, and more children have been born to them. The child conceived before the marriage is also living.

How about the validity of this marriage?

There can be no impedimentum erroris. According to Canon Law such error is essential only which excludes the necessary consent jure divino (the error conditionis servilis forms an exception)—this would apply in the case of an error of person. The error of person, an error of identity, however, annuls the consent, only under certain suppositions; the intention must be absent. The error in quality, though always accompanying the error of identity, differs essentially from it, and does not take away the validity of the contract, not even if the quality about which there is error is of decisive influence upon the resolution to consent; the consent is not excluded. The important so-called error qualitatis in personam redundans is not merely an error in quality, but a special kind of error in person.

The error in our case is merely an error in quality—Claudius erred concerning the paternity of the child—though the error influenced his resolution.

The marriage is therefore not invalid because of error. Let us inquire whether it is invalid by reason of non-fulfilment of a stipulated condition.

What is understood by a condition? A condition is that which is requisite that something else should take effect. It is apparent from the definition of condition, that, if the condition is not fulfilled, the contract is not intended and therefore not valid, ex jure naturali.

The question is then whether we are dealing in this case with a condition that would abolish the consent, and therewith the validity of the marriage. We are informed that: Claudius married Silvia upon the condition, claimed by her, that he was the parent of her expected child.

Was this a real condition? Did Claudius intend to make the validity of the marriage dependent upon the fact of his paternity, or not?

On the answer to this question the confessor would have to lay stress in his inquiry into the facts. If Claudius made it an actual condition, then the marriage is invalid, even in the case that the condition was not made in the form prescribed by Canon Law, i. e., not explicitly stated before parish priest and witnesses. The neglect of this formality does not make an in jure naturali void marriage a valid one, it only forfeits to the one who imposed the condition the right to claim it in foro externo.

As regards the re-validation of a marriage invalid on account of lack of consent, such does not take place eo ipso by reason of a long cohabitation with the other party. There is necessary an actual, conscious, removal of the lack of intent. In the foregoing case it would mean a conscious renunciation of the imposed condition, and acquainting the other party with the renunciation, the two conditions jure divino requisite for renewal of consent.

That such a renunciation was not made is attested by the fact that Silvia is not conscious of it.

If, therefore, the marriage was entered into under an actual condition, then it has been invalid from the very beginning.

In the solution of this case the all important question is: Had Claudius intended an actual condition, or only had an explicit supposition?

Hubert Gerigk.