Section — Merkelbach, Pastoral Questions
§ 5. Force and Fear
- I. Notion.
a) Force can be defined: "the exterior impulse of a greater thing which cannot be repelled."
Fear is: "trepidation of mind by reason of an instant or future danger."
b) Fear is distinguished:
1° Into antecedent fear, i.e., that which is the cause of the operation which is said to be done from fear; and concomitant fear, which does not influence the operation but exists together with it. And such an operation is said to be done with fear.
2° Into fear from without, i.e., that which is inflicted by an external cause; and from within, i.e., that whose cause is internal to the one suffering fear.
3° Into just fear, namely when the evil which is feared can be inflicted by strict right, justice being uninjured; and unjust fear, when the infliction of that evil would injure justice.
4° Into grave fear, which is present when these two things concur at once: a grave evil, either absolutely or relatively to the person who suffers fear, and an imminent danger of that evil, at least in the opinion of the one fearing, without there being at hand another means of escaping than to choose that which he would not will; light fear, namely when the two things aforesaid are not verified; reverential fear, which is the fear of incurring the indignation of parents or superiors. Of itself it is light, but from circumstances it can become grave.
II. Concerning the influence of force and fear upon matrimonial consent.
- a) Absolute force renders matrimony contracted under its influence invalid by natural law itself.
The reason is that physical violence excludes every human act and therefore every consent of the will.
- b) "Matrimony entered into on account of... grave fear, inflicted from without and unjustly, is invalid." (Can. 1086 § 1.)
Therefore five conditions must be present in order that fear invalidate matrimonial consent:
1°) Fear must be grave, either absolutely or relatively.
In doubt it is reputed light, because matrimony enjoys the favor of law.
2°) It must have been brought from without, and indeed by a free cause.
It matters little what person is the one causing the fear.
3°) It must be unjust as to substance, or at least as to mode.
Fear is unjust as to substance when the threatened punishment is unjust. It is unjust as to mode when the punishment itself is just, but the order of law is not observed.
4°) It must be in order to matrimony, i.e., such that in order to free himself from it one is compelled to choose matrimony.
It matters little whether one is compelled by fear to a determinate matrimony or to matrimony in general.
But authors dispute whether there is required in the author of the fear an intention of extorting consent or not.
Most assert the necessity of this intention.1
1 De Smedt, De sponsalibus et matrimonio, n. 537. - Vlaming, Praelectiones de Jure matrimoniali, ed. alt. 1920, n. 539. - Marc-Gesterman, Institutiones morales Alphonsianae, ed. 18., t. II, n. 1979, 4°. - Prummer, op. cit., n° 795.
Others, and more truly, as it seems to us, deny that such an intention is required.2 For the words of the Code, "fear from which, in order that one may free himself, he is compelled to choose matrimony" (Can. 1087 § 1), abstract from the aforesaid intention.
2 Capello, De matrimonio, n° 606, 4°. - Vermeersch-Creusen, op. cit., n. 377 d).
Practically almost always an intention of this kind will be found in him who inflicts the fear. But it can also happen that fear is inflicted not precisely for extorting consent, and yet no other way lies open besides entering matrimony by which someone can free himself from a grave and unjust evil. In such consent the words of the canon seem altogether to be verified, and therefore the matrimony is invalid.
Whatever may be the case concerning that controversy, it is always necessary that, on the part of the one suffering threats, matrimony appear as the single means of freeing himself or his own from a grave and unjust evil.
5°) The fear must persevere in the act of the celebration of matrimony. Therefore if the party who suffered fear puts it aside before matrimony is celebrated and consents freely, the matrimony is valid.
- III. By what law fear dirimently impedes matrimony.
a) If the fear is so great that it takes away the use of reason and free choice, by natural law there is no matrimony.
b) All agree that grave fear, clothed with the other conditions stated above, dirimently impedes matrimony from ecclesiastical law.
c) But whether fear dirimently impedes matrimony also from natural law is disputed. St. Thomas affirms it. In fact, in the impediment of fear the Church never dispenses.
- IV. What concerning the matrimony of the non-baptized which is contracted from fear clothed as above.
a) If an unbeliever contracts with a faithful party, there is no matrimony, whether the faithful or the unbelieving party suffers the fear.
b) The same holds if civil law declares invalid matrimony contracted from fear.
c) Outside this twofold case, such matrimony contracted by unbelievers is doubtful, because probably that impediment is of natural law.