Case 8. An Unhappy Marriage

Anna, an Anglican, asked Titius, a priest, to admit her into the Church. While instructing her, Titius discovered that she was very unhappy because of the frequent adulteries and cruelty of her husband, who often openly advises her to procure a divorce if it pleases her, for he would be content, since he would not have entered marriage unless it were dissoluble; Anna remembers that he also said this before marriage. Titius judges that it would benefit both the soul and the body of Anna and of their two children more if she could obtain a divorce; indeed, he doubts whether Anna lawfully leads a married life because of the doubtful validity of the marriage. Hence it is asked:

1. Is it lawful to seek a divorce in a civil court?

2. Can marriage be rendered invalid because of an attached condition, and when?

3. What is to be said of the case?

1. Is it allowed to petition in the civil court for divorce?

If the bishop judge that there is a good reason for asking for a judicial separation in the civil court this may be done in England and in the United States. If the ecclesiastical court has previously decided that a marriage was null and void, the case may be taken into the civil court to obtain a declaration of nullity in that court also. If the marriage was and remains valid no one can ask for a divorce with the intention of marrying again during the lifetime of the first spouse. It is probable that in England and in the United States a Catholic may petition in the civil court for a divorce with the intention of obtaining the civil effects of divorce, not of marrying again.¹

1 Manual of Moral Theology, vol. ii, 281 ff.

2. May a marriage be invalid on account of an annexed condition, and when?

If an express condition against the essence of marriage be added to the contract the marriage is null and void for want of consent. For the same reason if one of the parties only marries under a tacit condition which is against the essence of marriage, it will also be null and void.²

2 Ibid., 271 f.

3. The case. Ann’s Anglican husband said before and after marriage that he would not have married unless he knew that marriage could be dissolved. The marriage, as we must suppose, was contracted in the ordinary way, nothing being said in the act of marriage about these dispositions of the husband. In the external forum at least the marriage must be pronounced valid according to the rule laid down by Pius VI: “If indeed no express condition of this kind, repugnant to the substance of marriage, was appended, although the contracting parties generally intend to contract according to the tenets of a sect or of a law granting dissolution of the conjugal bond, the marriage must nevertheless be judged to have been validly contracted. ” (Litt. ad Archiep. Prag.¹¹ Jul. 1789).

The same solution must be given even for the internal forum unless it is certain that at the time of contracting it the husband had no intention of contracting absolutely and for life.¹

1 Génicot, vol. ii, 459.

The only remedy therefore available for Ann would be to petition for judicial separation, or, if there is any special reason for it, for a divorce, with the intention only of benefiting by its civil effects; but such remedies as a rule are rather to be tolerated than suggested by a confessor or parish priest.