A Doubtfully Valid Marriage

If there is doubt concerning the validity of the marriage, the truth must be investigated, except in the case in which the investigation is foreseen to be useless. Now:

I. During the due investigation, the one doubting cannot ask the debt; he is nevertheless bound to render it if the other party does not doubt and therefore asks in good faith; and this holds as long as he is not certain or almost certain of the nullity of the marriage; nor is he bound to warn the other party. - If both parties doubt, neither can ask or render the debt (St. Alphonsus VI, 903).

II. If the doubt perseveres after the due investigation, or already before investigation appears invincible:

1. One who entered the marriage in good faith, that is, without doubt concerning its validity or at least without fault, can also ask the debt; he can ask, however, as long as he is not certain or almost certain of the nullity of the marriage. The reason is that the common good requires that, in doubt concerning the validity of an act placed in good faith, one can act as if the act placed were valid. - The same, for the same reason, holds with sufficient probability even if the marriage was contracted in bad faith. Yet make exception, for both hypotheses, for the case in which there is doubt about the death of a prior spouse; this exception is deduced from chapter 2, De secundis nuptiis, from the Sacred Congregation for the Propagation of the Faith, 1792,¹ and from the fact that a marriage previously contracted and probably persisting prevails over a doubtful later marriage (St. Alphonsus VI, 904-907). Make exception, moreover, for the case in which the marriage is doubtful because the parties are probably related by blood in some degree of the direct line, for example father and daughter, or in the first degree of the collateral line, that is, brother and sister, because then marriage is prohibited (cf. can. 1076, § 3).

2. The one doubting is bound to render the debt as long as he is not certain or almost certain of the nullity of the marriage. Make exception: 1. if there is doubt concerning the death of a prior spouse and the partner asks the debt in bad faith; otherwise, if he or she asks it in good faith (chapter 2, De secundis nuptiis); 2. the case in which the marriage is doubtful because the parties are probably related by blood in some degree of the direct line or in the first degree of the collateral line.

¹ Cf. Bucceroni, Enchiridion morale, n. 833.

"... Moreover the Most Eminent Fathers observed that Missionaries, as to the marriages of infidels of that region, seem to have fallen into this opinion also, that in doubt one must stand for the invalidity of marriage; and this to such an extent that the party who seeks Baptism must be repelled from Baptism unless either he separates from the other party, or renews the marriage with the same, even if she who seeks Baptism is in good faith, and it does not stand through her that the marriage cannot be renewed: which things indeed cannot easily be approved. For you know that in marriages the contrary principle flourishes, that is: in doubt one must stand for the validity of marriage. But although it is sometimes equitable to recede from this principle, namely when, as for the most part happens in the marriages of infidels, the question concerns the fact, whether indeed marriage was ever contracted or not; nevertheless even in this case one must not immediately hasten to the contrary principle. For first it must be seen whether the marriage concerning whose existence the Missionary doubts can deservedly put forward possession for itself. For if this happens, the Missionary would wrongly judge that he must stand for its invalidity, since the rights of possession are to be observed until the contrary is clearly established. But the Most Eminent Fathers wished this to be noticed all the more because from those things which you narrate it appears that cases of this sort are very frequent. For you say that it often happens that the woman who seeks Baptism is in good faith, and therefore judges herself to be a true and legitimate wife; and likewise that the others suffer no scandal from her union with her man, and therefore they also judge that she is in a just marriage; but the unbelieving man, although he says nothing openly, nevertheless does not contradict either the opinion of the woman or that of the people, and deals with her as with a true wife: and these things moreover are of such a kind that they seem to vindicate for their union the name and possession of marriage." Instr. S. O. 18 Dec. 1877. Zitelli, De Dispens. Matrim., Rome 1884, p. 112.

“...Moreover, the Most Eminent Fathers observed that the missionaries, with respect to the Marriages of the unbelievers of that region, seem also to have come to this opinion: that in doubt one must stand for the invalidity of the Marriage, and indeed to such an extent that the party who seeks Baptism ought to be repelled from Baptism unless that party either separates from the other party or renews the Marriage with that party, even if the one who seeks Baptism is in good faith and it does not stand in that party’s way that the Marriage cannot be renewed. These things certainly cannot easily be approved. For you know that in Marriages the contrary principle is in force, namely: in doubt one must stand for the validity of the Marriage. Although it is sometimes equitable to depart from this principle—namely, when, as very often happens in Marriages of unbelievers, the question concerns a fact, whether the Marriage was ever contracted or not—nevertheless, even in this case one must not immediately hasten to the contrary principle. For first it must be seen whether the Marriage concerning whose existence the missionary doubts can deservedly claim possession in its favor. If this occurs, the missionary would judge wrongly that he ought to stand for invalidity, since the rights of possession are to be preserved until the contrary is clearly established. The Most Eminent Fathers wished this to be observed all the more because, from the things which you relate, it appears that cases of this kind are very frequent. For you say that it often happens that the woman who seeks Baptism is in good faith and therefore judges herself to be a true and legitimate wife; and likewise that the others suffer no scandal from her union with her husband, and therefore they too judge her to be in a just union; while the unbelieving man, although he says nothing openly, nevertheless neither contradicts the opinion of the woman nor that of the people, and deals with her as with a true wife. These things, moreover, are of such a kind that they seem to vindicate for their union the name and possession of Matrimony.” Instruction of the Holy Office, 18 December 1872; C. 1300.

“Moreover, in this matter let the judge know that Matrimony is of itself a certain solemn and public fact which must always be judged valid unless evident reasons demonstrate its nullity. Therefore, every effort and diligence must indeed be employed so that those reasons may be collected, but a judgment against a Marriage is never to be pronounced unless their totality excludes every prudent doubt concerning the existence of the impediment.” Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 40; A. S. S., vol. 18, p. 381.

A doubt having been proposed concerning the Marriage of polygamous unbelievers—whether it was to be regarded as valid, since it was not sufficiently established that consent to a true Marriage had been given—the Holy Office responded on 17 August 1898: One must stand for the Marriage, whether consummated or non-consummated, which was celebrated first in time with those ceremonies employed according to the custom of the country which, according to the common estimation of the region, sufficiently express the mutual present consent of the spouses. But if, after suitable investigations have been made, it is not established that the contracting parties or the young women in question gave true present matrimonial consent, and therefore the validity of the Marriage celebrated first in time is prudently doubted, provision was made by the Decree of 18 May 1892, response to 2, which reads as follows:

“If, after a diligent examination has been instituted, the Marriage with the first woman, who has already been baptized, is found valid, the pagans in question are altogether bound to return to her. But if she has not been baptized, by force of article 2 of Formula I it will suffice to interpellate her as to whether she wishes to be converted. But where she is unwilling to be converted, or the validity of the Marriage with the first woman is seriously doubted, they can marry any woman, provided that she is baptized, consent having been renewed.”

“...1. I ask whether, in relation to the validity or nullity of a contracted Marriage, the conferral or non-conferral of Baptism, when it is unknown, is to be determined from the principle of presumption?...—2. When the conferral of Baptism is unknown, is the principle of presumption rightly applied, in relation to the validity of a contracted Marriage, in the following articles?

“1. If the non-Catholic party or parties had parents belonging to a sect which rejects Baptism, Baptism is not to be presumed.

“2. The same is to be resolved if they had parents belonging to a sect which does not admit the Baptism of infants, or in which it is not conferred except upon adults—for example, upon those who have already attained the thirtieth year of age—as is the case in the sect of the Baptists.

“3. The same is likewise to be resolved if they had parents who, while living, professed that they wished to belong to no sect and that they honored the Supreme Being, as they say, by upright morals rather than by any particular worship.

“4. If they had parents belonging to a sect which regards Baptism as necessary, or in which it is at least ordinarily administered, and if those parents were zealous in their sect, Baptism is to be presumed. But what if the parents were negligent in their sect, or belonged to a sect which indeed does not reject Baptism but does not regard it as necessary and in which it is not ordinarily administered? In either or both cases, is Baptism to be presumed or not?

“5. If, according to the sect of only one parent and that parent’s zealous disposition of mind as described above, the presumption favors Baptism, and that parent in fact and undoubtedly had the principal part in the education of the offspring, Baptism is to be presumed.

“Resolve the same if, after an inquiry has been made, it is unknown or is not sufficiently established whether that parent had the principal part; for Baptism is to be presumed in relation to Matrimony, since a union once entered into is to be judged valid so long as an obstacle does not disclose itself. But what if it is certainly established that the sect and disposition of mind of the parent who in fact and undoubtedly had the principal part in the education did not favor Baptism, while the sect and disposition of mind of the other parent favored it?

“6. In a case in which no presumption militates in favor of Baptism, the rule is to be applied: a fact is not presumed, but must be proved. The application of this rule in these United States, where among non-Catholics there are very many who care little or nothing about conferring Baptism upon their infants, ought perhaps with greater reason to have place than in many other regions.

“The aforesaid questions are proposed as principal ones for this reason: that from their solution there may be had a norm according to which it is possible to proceed safely, especially in these cases: 1. When, of two non-Catholic parties separated from each other as above, one requests to be received into the bosom of the Church and desires to pass to other nuptials. 2. When the Catholic party, separated as above from the non-Catholic party, requests to be joined to another, or, already joined to another, desires to be admitted to the Sacraments.

“Response. To 1: Affirmative, but after an investigation has been carried out in each case.

“To 2, namely: When the conferral of Baptism is unknown, is the principle of presumption rightly applied, in relation to the validity of a contracted Marriage, in the following articles? They responded: Affirmative with regard to the first, second, and third articles, and with regard to the first part of the fourth and the first part of the fifth number; but in this last article, after the words had the principal part, let there be added: and the other spouse is not known to have been positively opposed to the conferral of Baptism, Baptism is to be presumed. In the remaining cases noted in the second part of number five, recourse is to be had to the Holy See, with all the circumstances of things, places, and persons, and the other matters relevant to the affair, having been set forth. To 6: Provided for in the preceding responses.” Holy Office, 1 August 1883, to the Bishop of Savannah.

235. - A graver question must be raised concerning those who have a doubt not to be disregarded about the validity of their marriage: what use of marriage can they make, and what must they avoid?

Here we examine only a doubt concerning the validity of the marriage contract. For in our treatise, which is not about marriage but about chastity, the question does not come up for consideration as to how far it is permitted to enter the matrimonial covenant with a doubtful impediment.

The difficulty and obscurity of the question, as must also be observed in the argument of probabilism in general, proceeds from this: while three states of mind - affirming, denying, and doubting - are clearly distinguished, there can be only two resolutions of the will: I shall act or I shall not act, so that no mean can be placed between action and omission. Wherefore, the practical conclusion cannot be perfectly adapted to the cognition of the intellect, but at first appearance will seem either more severe or more benign: more severe, if, in the case, you say to Titius, "You are forbidden to dismiss Caia, who perhaps is your wife, yet you cannot have carnal intercourse with her"; more benign, if you answer the same man, "You can freely use a woman who perhaps is not yours, who perhaps belongs to another."

But if the other spouse requests the conjugal debt, especially if he is in good faith and does not doubt, a perplexing case arises: for by denying the debt, the danger of injustice is incurred; by conceding the debt, the danger of fornication or adultery (and therefore also of injustice) is incurred.

A prudent use of a reflex principle is therefore to be applied here. Now, in order that we may distinguish the cases:

1. Before a serious investigation of the matter, or unless he can render the marriage certain by a dispensation (which he must then do), the one doubting, on his own part, must abstain from every active use of marriage, perfect or imperfect; for with a conscience which would be vitiated by a vincible doubt, he would expose himself to fornication or adultery.

In the meantime, however, he can and must render the debt to the other party who is in good faith. "When conscience strikes the soul from a probable and discreet belief, although not an evident and manifest one, he can indeed render the debt, but he ought not to request it, lest in either matter he commit an offense either against the law of marriage or against the judgment of conscience." Thus Innocent III himself authentically resolved the case in chapter Inquisitioni, 44, De sent. excomm. (V, 39).

Nor is he bound to disturb the good faith of the other party by an admonition which would often be full of inconveniences.

As the rationale for the reply, Sanchez alleges a perplexing case in which the lesser evil, that is, the danger of fornication, is to be chosen before the greater evil, or the danger of injustice ¹⁰. This rationale seems to have less force when the cause of the doubt is a preceding marriage perhaps not dissolved by death. For then the danger of injustice toward the prior spouse is added to the danger of fornicatory intercourse ¹¹. But possession in good faith gives to the spouse requesting a certain right which, according to the opinion of Sanchez, prevails over the right of the prior spouse, which he calls uncertain because it belongs to an uncertain subject, that is, one perhaps not living (De matrimonio, book 2, disputation 42, no. 6). Wherefore, concerning one who contracted a second marriage before the death of the prior spouse was established for him, the Pontiff decreed: "If anyone... still thinks that the death of the prior spouse is to be doubted by him, let him not deny the debt to the one who married him when she requests it, yet let him know that it is by no means to be exacted by himself" [chapter Dominus, 2, De secundis nuptiis (IV, 21)].

¹⁰ De matrimonio, book 2, disputation 41, no. 45.

¹¹ St. Alphonsus, book 6, no. 903.

But if, as Sanchez rightly excepts, the spouse who does not doubt has been deprived of the right of requesting, for example, because of adultery, the doubting spouse cannot assent when that spouse requests.

For then the danger of injustice disappears; only the danger of fornication remains, and this can and must be avoided by denying intercourse.

It is evident that, if the doubt is common to both, every use of marriage must be suspended before an investigation or an obtained dispensation.

2. After the inquiry has been made, if the doubt has become invincible - and the matter stands in the same way if from the beginning it is demonstrated that an inquiry will be fruitless or useless ¹² - the opin- ion which St. Alphonsus ¹³ judges by far the more common and more probable permits every use of marriage, even active and spontaneous use, to those who married in good faith; and this on account of the right of possession, which, according to the opinion that St. Alphonsus ¹⁴ holds sufficiently probable and defends with arguments, is admitted to remain even if, apart from possession, another probable rationale for the validity of the marriage is lacking, provided it is not morally established that the marriage is null. Therefore, the force of a positive argument for nullity will have to be weighed.

¹² Sanchez, De matrimonio, book 2, disputation 41, no. 47.

¹³ Book 6, no. 904. But, from the sixth edition, he seems to hold otherwise concerning one who doubts, even on account of probable reasons, the death of the prior spouse, because the prior marriage then possesses.

¹⁴ Ibid., no. 905.

3. If a marriage was contracted with a doubt concerning an impediment, or in bad faith, so long as it is not a question of the impediment of a bond, after a fruitless investigation a probable opinion permits the use of marriage to persons married in this way. Although they cannot allege good possession, they are nevertheless protected by the principle: "In doubt, one must stand for the validity of the act"; this has greater force concerning a favorable cause such as marriage. This seems sufficiently proved even to St. Alphonsus, book 6, no. 906.

This opinion becomes common when a probable rationale for the validity of the marriage can be adduced. Thus Sanchez and others cited by St. Alphonsus, loc. cit. For it is manifest that the possession itself, formally begun badly, confers no advantage.

4. But if it is a question of a doubtful impediment of a bond, many ¹⁵ deny active use to either one who doubts, or every use of marriage to both when both doubt.

¹⁵ For example, Lehmkuhl, Theologia moralis, II, 1076, 1077; De Smet, De sponsalibus, etc., no. 238.

Yet not a few concede use in an invincible doubt if a probable rationale for validity can be alleged. "Because," says Sanchez ¹⁶ - who, according to Lugo ¹⁷, treated this whole matter excellently - "in morals it is enough to embrace a probable opinion." For even if - thus we think the argument should be perfected somewhat - the probability of the death of the prior spouse is only a probability of fact, from it comes about that the spouses have a probable right, and weighty authors permit that probable right to be satisfied. For we are dealing with a matter of justice. It is a question of a thing which cannot be divided among several, so that the solution by division must also be excluded.

¹⁶ De matrimonio, book 2, disputation 42, no. 9.

¹⁷ De iustitia, disputation 17, no. 87.

Come now, in a matter of justice, a probable right, although it does not excuse occult compensation, or does not permit a thing to be taken from another who possesses it, nevertheless permits one who holds the thing to enjoy it, provided he is prepared to return it, in the state in which it is found, to him who proves a certain right ¹⁸.

¹⁸ Lugo, De iustitia, disputation 17, no. 91.

It therefore seems consonant with reason that we concede the same in this matter. Certainly, the danger of intercourse with one who is not one's own is not excluded; but even if they contracted in good faith, that danger fully subsists. Therefore, by what certain argument will you bring it about that spouses ought to neglect their probably acquired right because of the uncertain right of another? Why would you afflict the other party, who for the most part exists free from every other bond, with that severe penalty by which, since he is permitted neither to leave the spouse nor to enjoy that spouse, he is compelled to observe perfect continence? Does not the very rationale of the common good demand that continence not be imposed upon the unwilling beyond what is strictly required? Wherefore, that indulgence by which, after a sinful celebration, the use of marriage is permitted to those who have a probable right and are situated in invincible doubt is not a mere favor granted to one who sins, but is that rationale of composing rights which does not omit to provide for the common utility. Sanchez ¹⁹, Bonacina ²⁰, Sporer ²¹, Roncaglia ²², and the Salmanticenses ²³ did not see an argument by which these spouses ought to abstain from the use of marriage; St. Alphonsus did not see one in the first five editions of his moral theology, nor in his work Homo apostolicus ²⁴; Ballerini did not see one ²⁵. R. P. Noldin ²⁶ likewise, with another distinc- tion omitted, judges that the use of marriage is lawful for those who are situated in invincible doubt.

¹⁹ De matrimonio, book 2, disputation 42, no. 9.

²⁰ De matrimonio, question 4, point 4, no. 10.

²¹ Treatise 1, chapter 1, no. 77.

²² Treatise 21, last question, sole chapter, question 6, response 2.

²³ De matrimonio, treatise 9, chapter 15, no. 48.

²⁴ Cf. the note of Gaude's edition at no. 906.

²⁵ Opus theologicum morale, vol. 6, treatise 10, no. 424.

²⁶ De sexto praecepto et usu matrimonii, no. 98.

Observe finally, if only one contracted with doubtful faith, how little severity benefits the prior spouse (if he exists). For then all permit the debt to be rendered to the other when requesting. But once the unilateral active use of marriage has been conceded, how will it benefit the prior spouse if the other is prohibited from requesting the debt?

And this restriction of rights will often be inconvenient and unwelcome to the other spouse; indeed, if a wife in good faith is protected by the privilege, it does not suffice that she be able to make a request from which she is of herself impeded by modesty.

You Will Resolve. - 1°. He who in good faith believes that his spouse is dead, while in fact she is living, and hastens to other nuptials, does not indeed sin, but contracts invalidly and is bound to return to the prior spouse when she appears.

2°. For entering a new Marriage, the mere absence of the spouse, however great it may be, is not sufficient; but arguments of death are required which make true moral certitude.

3°. This moral certitude required by law is not had through rumor, even public rumor, unless it is supported by some positive argument, nor through one single witness, unless other conjectures are present, concerning which it belongs to the Bishop alone to judge. - Hence in doubt one must always have recourse to the Bishop; but he, while the doubt remains, cannot permit the celebration of Marriage, but must transmit the whole cause, insofar as there is need, to the Holy See.

4°. By special law and reason, especially among us, recourse must be had to the Ordinary when it is a question of Marriage to be entered by wanderers and foreigners. - Cf. Council of Trent, sess. 24, cap. 7. - Kenrick, n. 193.¹

Note. - What must be done when a woman desires to enter new nuptials from the fact that her husband gave his name to the military and has not returned, you may see in the Second Plenary Council of Baltimore, n. 328. Consult also the Instruction given for proving the death of a spouse in the Third Plenary Council of Baltimore, Appendix p. 258.²

¹ Cf. Addenda, p. 1120, n. 75.

² Cf. Addenda, p. 1117, n. 70.

§ 1. A marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null.

§ 2. If the party at the time of the contracted marriage was commonly held as baptized, or his baptism was doubtful, one must stand, according to the norm of can. 1014, for the validity of the marriage, until it is certainly proved that one party was baptized, but the other was not baptized (Can. 1070).

Titius and Titia, spouses and adherents of the religion of the Anglican sect, asked Caius, a priest, to receive them into the Catholic Church. Inquiring about their Baptism, Caius found that Titia probably had been baptized, but Titius certainly never had been; furthermore, they were joined in the third degree of consanguinity. Since, however, according to a certain recent theologian those probably baptized are certainly subject to the laws of the Church, Caius judged that a dispensation must first be sought so that at least now Titius and Titia might enter a valid marriage. Another priest, however, thought that the marriage had been valid from the beginning. Hence it is asked:

1. What is to be thought of the opinion of that recent theologian?

2. Who are subject to the matrimonial laws of the Church?

3. In doubt about Baptism, what must be pronounced concerning the validity of a marriage?

4. What is to be said of the case?

1. What is to be thought of the opinion referred to? The opinion is that of Lehmkuhl: “ Are those doubtfully baptized subject by divine law to the jurisdiction of the Church?”¹ Of this opinion Fr. Wernz writes: “ But such a principle does not seem hitherto to have been generally admitted by the doctors, nor do the reasons adduced seem effective to all. It is also difficult to understand how anyone is truly and objectively bound by the invalidating laws of the Church although only subjective doubts exist concerning his baptism, and he perhaps objectively lacks the baptismal character, which by divine law is the sole foundation of the dependence of any man as a subject upon ecclesiastical laws.”¹ Génicot says: “ We think it truer that a mere presumption is found there which the Church follows in adjudicating matrimonial causes.”²

1 Theol. Moral., vol. ii, 426 nota.

1 Jus Decretalium, iv, 508 nota (33).

1 Theol. Moral., vol. ii, 488 nota.

2 Wernz, Jus Decret., lib. iv, n. 507.

2. Who are subject to the matrimonial laws of the Church?

All those who are baptized, even schismatics and heretics, unless the Church has made an exception, as she has done with regard to the law of clandestinity.

3. In a case of doubtful baptism what is to be said about the validity of marriage?

The general rule is: “ A doubtful Baptism, whether from a doubt of law or of fact, is to be held valid in relation to the validity of a marriage contracted or to be contracted.”³ The rule, which has frequently been formulated and acted on by the Roman Congregations, more probably lays down a presumption which is followed as long as the doubt remains, but which must yield to the truth if it becomes manifest.

4. The case. Titia probably had been baptized; Titius certainly had not been baptized, and this fact we presume to have been publicly known at the time of their marriage, not to have been detected now for the first time. The marriage was invalid. “ Those who have been validly or doubtfully baptized are subject also to diriment impediments of ecclesiastical law. ... But it can happen that one party has been validly or doubtfully baptized, but the other invalidly. In this case their marriage will be null on account of disparity of worship ” (S. O.⁴ Feb. 1891. A. S. S. XXVI, 62). Titia was also subject to the impediment of consanguinity, and so the marriage was also invalid on this head. Caius should leave them in good faith about the validity of their marriage, apply for a dispensation from consanguinity in the third degree in the case of converts already married, and after he has received them into the Church and obtained the dispensation, get them to renew their consent before the parish priest and two witnesses.