Title XVIII: Who Can Accuse a Marriage or Testify against It

Latin source headnote: When the bond of marriage is at issue, while the defendant is contumaciously absent, witnesses concerning an impediment to the marriage can be received, provided that they are lawful; and sentence is rendered according to their statements.

Alexander III, to the Bishop of Paris.

It was reported to us on your behalf that, when the father of a certain girl had given her in marriage to a certain citizen of Paris, the husband, after some years during which he remained with his wife, departed from the city through fear of death on account of the homicide which he committed. But now it is said and seems capable of being lawfully proved that the father of the aforesaid girl held the young man for baptism and, what is more, raised him from the sacred font; but although sought by your letters, he has not yet been able to be found, even though five years have passed. Moreover, because concerning this your fraternity considered that we should be consulted, we respond to your consultation in this manner: if the young man and the girl were [together] for some years without question, those who now accuse the aforesaid marriage do not seem to be free from suspicion. Moreover, if what is asserted is manifest, or lawful accusers and witnesses appear superior to every exception, after the young man has been sought with every diligence, even if he cannot be found, you will be able to receive witnesses and terminate the judgment by a canonical end. Yet you are to proceed in such a way that you do not seem in any way to prefer any affection or temporal advantage to justice. Indeed, those with whose knowledge and silence the marriage was contracted are not thereafter to be heard against it.

Latin source headnote: Accusation and testimony in a matrimonial case ought to be made personally and not through letters.

Clement III.

It was asked of us on behalf of your church whether persons who utter nothing in their own voice concerning an accusation of marriage ought to be admitted through the writing of a small document alone. To this we respond that in such matters the writing is of no moment for rendering sentence, except as to presumption, unless other lawful supports concur. Moreover, because this also was added to the consultation, we respond accordingly that those who were present at the betrothals and, when questioned, kept silent are not afterward to be received if they wish to confess anything against the marriage, unless they wish to say something about those things which in truth they learned afterward, concerning which it is established that at the time of the interrogation made they knew nothing. In what manner an oath is to be received from those who accuse a marriage or make some protest, and after how many years certain persons are to be heard in an accusation of marriage, we did not consider should be annexed to the present letters, both because the form of this oath appears diligently expressed in nearly all the canons, and because, on account of the variety of cases and the diversities of persons, a fixed limit concerning a span of years cannot be prescribed for these matters. [Given at the Lateran.]

Latin source headnote: In a matrimonial case, blood relatives and parents can testify concerning consanguinity and the contract.

Pope Clement III, to the Bishop of Florence.

It seems to us that the second woman whom he married contrary to the prohibition of the Church is not his wife, even if he had not betrothed the first. For the authority of both divine and human law proclaims that what has been done contrary to the interdict and order of the Church is not to be held ratified, as being disordered. Therefore, because the woman whom he irregularly brought in over the first is not his wife, since the prohibition resists, he is to be compelled to receive the woman to whom he swore and whom he betrothed, and from whom he begot offspring, so that the sanctity of the oath is not held in contempt, the faith mutually promised is preserved, the offspring is nurtured and educated in the worship of God, and others are not thereby able to take occasion for perjuring themselves and deceiving others. But that parents, brothers, and blood relatives of both sexes are admitted in testimony concerning their own people for joining or dissolving a marriage is approved by both ancient custom and the laws, and is likewise approved by both divine and human laws. For this reason especially parents are received, and, if the parents are lacking, the nearer relatives are admitted, because each person endeavors to know his genealogy both from witnesses and documents and also from the recital of his elders. Therefore, because they know better than others, they are especially admitted. They are likewise received in testimony for the purpose of joining a marriage. For who ought to be received more fittingly than those who know better, and whose interest it is, in such a way that, if they have not been present and have not furnished consent, according to the laws no marriage is made? But what is read—“a father is not to be received in the case of a son, nor a son in the case of a father”—is true in criminal cases and contracts; but for joining and disjoining marriage, by the prerogative of the marriage itself and because it is a favorable matter, they are fittingly admitted.

Latin source headnote: A woman betrothed unwillingly, but afterward known voluntarily, is not heard against the marriage.

The same.

Moreover, you added that someone contracted with a certain girl not yet marriageable, who, finally reaching the bounds of age and being known by him several times, after four or five years had elapsed from the aforesaid age, protested against the marriage, asserting that from the beginning she had always dissented from him, and she proves what she says through witnesses illustrious in reputation and conduct. Therefore, in this case we judge that she ought not to be heard against the marriage, since, reaching the lawful year before she was known, she did not protest when she could have done so. For just as before lawful consent, which is expected in the twelfth year according to canon law, she was able to dissent, so, after at a lawful time she consented even once to carnal union, it is not doubted that by ratification she imposed silence upon herself concerning this. [Again a certain man, etc. Compare chapter 6, Who Are Clerics or Vowed Persons, IV. 6.]

Latin source headnote: One who accuses a marriage for gain is repelled.

Innocent III, to the Archbishop, the Provost, and the Prior of Saint Mary of the Albanians at Genoa.

At the representation of M. of Canula, a citizen of Genoa, it was declared to our apostolate that, when he had lawfully married N., S., the mother of the woman herself, endeavored to accuse the marriage in order to extort money from him. And although wicked works cannot answer her understanding, nevertheless she wishes to have money so that she may desist [henceforth] from accusation of the same marriage. Therefore, since indulgence is not to be granted to the malice of men, by apostolic writings we command your discretion that, if it is so, repelling the woman herself from accusation of the same marriage, you impose silence upon her concerning this. [You, brother, etc. Given at the Lateran, on the seventeenth day before the Kalends of July, 1204.]

Latin source headnote: One who kept silent at the time of the proclamation is repelled from accusation of a marriage, unless he was reasonably ignorant of the proclamation, or swears that he learned the matter anew and that he does not object to it maliciously.

The same.

When in your diocese—(And below: [Compare chapter 30, On Tithes, III. 30.]) But if after a marriage has been contracted some accuser appears, although he did not come forth publicly when the banns were proclaimed in the churches according to custom, it can deservedly be asked whether the voice of his accusation ought to be admitted. Concerning this we considered that a distinction should be made as follows: if, at the time of the aforesaid proclamation, the one who attacks those now joined was outside the diocese, or otherwise the proclamation could not come to his knowledge—as, for example, if, laboring under the heat of excessive infirmity, he suffered exile from a sound mind, or was constituted in years so tender that his age was not able to suffice for comprehension of such things, or was impeded by another lawful cause—his accusation ought to be heard. Otherwise, since it is reasonably presumed that, while present in that diocese, he was by no means ignorant of the proclamation publicly made, he is without doubt to be repelled as suspect, unless he has affirmed by his own oath that he afterward learned the things which he objects and that he does not proceed to this from malice; because then, even if he learned from those who kept silent at the time of the proclamation, the approach to accusing ought not to be closed to him, since, even if the fault contracted from such silence excluded them from an attack of this kind, nevertheless this man could not be removed, since he is not culpable. [But whether, etc. Compare chapter 44, On Witnesses, II. 22. Given at the Lateran, on the fourth day before the Kalends of November, in the fifteenth year of our pontificate, 1212.]