An unusual marriage question

[Mark1970]

A friend came out with an unusual scenario as we were talking after Mass this morning, I didn’t really know the answer. We left the discussion with the view that it may be better to discuss the idea with people who may have a better view.

This is the hypothetical situation as presented by my friend. Two Catholic enter into a valid marriage, in the Catholic Church. There is no reason for this marriage to be considered invalid in any respect - so the validity isn’t an issue. At some point, either the husband or wife disappears - as in a “missing person” kind of disappearance. After whatever period of time the person is declared legally dead. The remaining person then desires to enter into a second marriage, which they believe possible as the missing spouse is believed dead. They remarry and the marriage takes place in Church with the assumption that it is perfectly OK to do so. But then sometime after the second marriage, the first spouse, the one presumed dead, reappears. The question is what would be the status of the second marriage?

I was unsure what the answer to this would be. I did think that perhaps the Church would advise against a second marriage while the status of the first marriage was in doubt.

Any suggestions? I know this is a purely hypothetical situation and some people don’t like replying to such a question but it would be interesting to know people’s thoughts.

 

[FrDavid96]

See:

Tennyson’s poem Enoch Arden

Movies Too Many Husbands and My Favorite Wife and Somethings Got to Give and Move Over Darling.

 

[FrDavid96]

A friend came out with an unusual scenario as we were talking after Mass this morning, I didn’t really know the answer. We left the discussion with the view that it may be better to discuss the idea with people who may have a better view.

This is the hypothetical situation as presented by my friend. Two Catholic enter into a valid marriage, in the Catholic Church. There is no reason for this marriage to be considered invalid in any respect - so the validity isn’t an issue. At some point, either the husband or wife disappears - as in a “missing person” kind of disappearance. After whatever period of time the person is declared legally dead. The remaining person then desires to enter into a second marriage, which they believe possible as the missing spouse is believed dead. They remarry and the marriage takes place in Church with the assumption that it is perfectly OK to do so. But then sometime after the second marriage, the first spouse, the one presumed dead, reappears. The question is what would be the status of the second marriage?

I was unsure what the answer to this would be. I did think that perhaps the Church would advise against a second marriage while the status of the first marriage was in doubt.

Any suggestions? I know this is a purely hypothetical situation and some people don’t like replying to such a question but it would be interesting to know people’s thoughts.

The second time is an invalid attempt at marriage.

When someone’s spouse is still living, and further attempt at marriage is invalid. This does not depend on whether or not there is some misunderstanding or misinformation, but on the objective fact that the spouse is alive.

Yes, the Church does “advise” against a 2nd marriage while the “status of the first one is in doubt”; however that’s not exactly how the Church sees it. Instead, the first marriage “enjoys the favor of the law” and is always presumed to be valid until the contrary is proven. Now, if one spouse is dead, that is simply a matter of proving the death, which in turn proves that the marriage has ended.

For proof-of-death, the Church accepts a government death certificate*. That allows the surviving spouse to proceed with a 2nd marriage.

If it is later found that the first spouse is alive, then the 2nd marriage is actually an invalid-attempt.

In such a case, no one would be considered culpable, but still the second attempt is an invalid attempt. Period.

---

• I say the Church accepts a death certificate, that doesn’t mean that’s the only way.

 

[on_the_hill]

Does anyone know the **legal **status of the first marriage if the first spouse turns out to be alive?

Second question: The first spouse is never presumed dead, but simply walked out of the marriage, relocated to another country, declared that she had no interest in maintaining the marriage, and had essentially no contact with the remaining spouse for the rest of his life? Could an annulment have been granted? Is abandonment grounds for annulment?

This is based on a real-life situation I’m familiar with.

 

[Kielbasi]

Does anyone know the **legal **status of the first marriage if the first spouse turns out to be alive?
.

I’m sure that varies according to whatever jurisdiction that the principals live in.

 

[St_Francis]

Does anyone know the **legal **status of the first marriage if the first spouse turns out to be alive?

Second question: The first spouse is never presumed dead, but simply walked out of the marriage, relocated to another country, declared that she had no interest in maintaining the marriage, and had essentially no contact with the remaining spouse for the rest of his life? Could an annulment have been granted? Is abandonment grounds for annulment?

This is based on a real-life situation I’m familiar with.

Annullment is based on the situation at the time of the wedding, when the sacrament of marriage was entered into by the two people. Later actions *might *provide evidence that the marriage was entered into improperly, but can not be a reason to annull the marriage.

 

[1ke]

At some point, either the husband or wife disappears - as in a “missing person” kind of disappearance. After whatever period of time the person is declared legally dead.

The process the Church uses in determining freedom to marry in a presumed death situation is found here:

vatican.va/archive/ENG1104/__P6S.HTM

It’s important to note that long time absence is not sufficient under 1707.2 even though it is sufficient in some civil jurisdictions.

The question is what would be the status of the second marriage?

See the Commentary on the New Code of Canon Law, pg. 1798. The second attempt at marriage is invalid and conjugal living should cease.

 

[angell1]

Annullment is based on the situation at the time of the wedding, when the sacrament of marriage was entered into by the two people. Later actions *might *provide evidence that the marriage was entered into improperly, but can not be a reason to annull the marriage.

exactly, if the wife has entered the marriage with that kind of thinking, for example, if they wanted to use the marriage to get citizenship in a country and was just pretending to be sincere and had no intention of honouring the marriage vows, it is definitely possible. however, this may not always be the case, it really depends on the situation.

 

[Mark1970]

Yes, the Church does “advise” against a 2nd marriage while the “status of the first one is in doubt”; however that’s not exactly how the Church sees it. Instead, the first marriage “enjoys the favor of the law” and is always presumed to be valid until the contrary is proven. Now, if one spouse is dead, that is simply a matter of proving the death, which in turn proves that the marriage has ended…

So my understanding of that would be, in the situation described, until the death of the missing person could be proved, the church would presume the missing spouse is still alive and that the first marriage still exists.

 

[on_the_hill]

Annullment is based on the situation at the time of the wedding, when the sacrament of marriage was entered into by the two people. Later actions *might *provide evidence that the marriage was entered into improperly, but can not be a reason to annull the marriage.

exactly, if the wife has entered the marriage with that kind of thinking, for example, if they wanted to use the marriage to get citizenship in a country and was just pretending to be sincere and had no intention of honouring the marriage vows, it is definitely possible. however, this may not always be the case, it really depends on the situation.

Thanks for the answers.
I have no idea as to the background of the marriage. I only know what I’ve been told by the jilted husband’s family. They were married, had a child, the wife took some college courses that led to an overseas study abroad program, and she decided to never come back to the U.S. Never saw the child again.

 

[FrDavid96]

Does anyone know the **legal **status of the first marriage if the first spouse turns out to be alive?

Second question: The first spouse is never presumed dead, but simply walked out of the marriage, relocated to another country, declared that she had no interest in maintaining the marriage, and had essentially no contact with the remaining spouse for the rest of his life? Could an annulment have been granted? Is abandonment grounds for annulment?

This is based on a real-life situation I’m familiar with.

No, abandonment is not grounds for annulment.

A declaration of nullity is a finding that there was never a valid marriage in the first place. It is not a finding that a marriage has somehow ended.

 

[FrDavid96]

The process the Church uses in determining freedom to marry in a presumed death situation is found here:

vatican.va/archive/ENG1104/__P6S.HTM

…

Yes, but…

…the OPs scenario included the statement that the civil authorities had actually issued a death certificate (“declared legally dead”) , so canon 1707 wouldn’t apply to the question.

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document…

Still, the canon does answer the followup question.

1707.2 …The absence of a spouse alone, even for a long time, is not sufficient.

 

[FrDavid96]

So my understanding of that would be, in the situation described, until the death of the missing person could be proved, the church would presume the missing spouse is still alive and that the first marriage still exists.

Yes, but that wasn’t the question. The OP said that the spouse is “legally dead” which is just another way of saying that the death is “proved” at least legally, even if it turns out not to be true.

Keep in mind though, that while the Church begins by presuming that the spouse is still alive, there is a procedure for the Church to presume the death of the first spouse. Once that happens, then a second marriage can (usually) go forward.

Remember that canon law is world-wide. In most developed countries, there is a legal procedure for declaring a missing person legally dead. I doubt that any bishop in a country where such a procedure reliably exists would make such a declaration on his own, rather than wait for the civil authorities to do so. The situation would have to be very extreme and unusual for a bishop to do that.

 

[on_the_hill]

Yes, but…

…the OPs scenario included the statement that the civil authorities had actually issued a death certificate (“declared legally dead”) , so canon 1707 wouldn’t apply to the question.

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document…

Still, the canon does answer the followup question.

1707.2 …The absence of a spouse alone, even for a long time, is not sufficient.

Oy vey. Now I’m confused. Civil authorities issue a death certificate and the surviving spouse remarries. The legally dead spouse reappears. Is the first marriage still null?

 

[FrDavid96]

Oy vey. Now I’m confused. Civil authorities issue a death certificate and the surviving spouse remarries. The legally dead spouse reappears. Is the first marriage still null?

No. The first marriage was never null. That’s exactly what I’ve been posting.

If the first spouse is alive, the marriage continues. A valid consummated marriage between 2 baptized persons only ends when one spouse dies.

If the spouse who was presumed to be dead turns out to be alive, then that makes the second marriage an invalid attempt. (Again, that’s what I posted earlier).

How are you confused?

 

[FrDavid96]

Oy vey. Now I’m confused. Civil authorities issue a death certificate and the surviving spouse remarries. The legally dead spouse reappears. Is the first marriage still null?

OK. I know why you’re confused.

Context is everything.

In my post, I wrote that canon 1707 would not apply to the OPs question.

This is a simple matter of a principle I learned in high school—one that was drilled into me by a very good teacher “Answer the question. Answer the question. Answer the question.”

The OP specified that the civil authorities do declare a person legally dead in the original question. Canon 1707 addresses a situation where the civil authorities do not declare a person legally dead. Therefore, canon 1707 doesn’t apply to the question.

Having said that, canon 1707 does contribute to the broader conversation; it’s merely not relevant to the original question.

Now does that make more sense?

 

[Gorgias]

Yes, but…

…the OPs scenario included the statement that the civil authorities had actually issued a death certificate (“declared legally dead”) , so canon 1707 wouldn’t apply to the question.

Hmm… that doesn’t seem to fit the situation. The OP’s scenario seems to speak to a civil declaration of death in absentia – that is, that there isn’t certainty. (In such a case, a subsequent finding that the person is actually alive would nullify the civil declaration.)

By this standard, then, 1707 would apply – since the death isn’t ‘proven’, but merely ‘asserted’ by the courts, it would be necessary for the diocesan bishop to attain moral certitude of the death. If he is unable to make such an assertion, then the subsequent marriage cannot be celebrated.

 

[1ke]

Hmm… that doesn’t seem to fit the situation. The OP’s scenario seems to speak to a civil declaration of death in absentia – that is, that there isn’t certainty. (In such a case, a subsequent finding that the person is actually alive would nullify the civil declaration.)

By this standard, then, 1707 would apply – since the death isn’t ‘proven’, but merely ‘asserted’ by the courts, it would be necessary for the diocesan bishop to attain moral certitude of the death. If he is unable to make such an assertion, then the subsequent marriage cannot be celebrated.

I agree. That is what the commentary seems to be pointing to as well.

Walked out and never came back and went down with the ship are entirely different scenarios.

 

[FrDavid96]

Hmm… that doesn’t seem to fit the situation. The OP’s scenario seems to speak to a civil declaration of death in absentia – that is, that there isn’t certainty. (In such a case, a subsequent finding that the person is actually alive would nullify the civil declaration.)

By this standard, then, 1707 would apply – since the death isn’t ‘proven’, but merely ‘asserted’ by the courts, it would be necessary for the diocesan bishop to attain moral certitude of the death. If he is unable to make such an assertion, then the subsequent marriage cannot be celebrated.

The OP wrote

…At some point, either the husband or wife disappears - as in a “missing person” kind of disappearance. After whatever period of time the person is declared legally dead…

The OP did not ask about someone who moves away and breaks off contact; but about a “missing person kind of disappearance.”

Therefore, canon 1707 does not apply, because canon 1707 addresses what happens when there is an absence of the civil authorities declaring the person dead.

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after the diocesan bishop has issued a declaration of presumed death.

It’s really quite simple or …
do I need to explain the definition of the word “cannot” ?? which is the word used in canon 1707

This is a prime example of how discussions here can get ridiculous and how people become argumentative simply for the sake of being argumentative.

You are not addressing the OPs question. You are addressing a variation on the question which was posed much later, about someone who goes away on vacation and doesn’t come back—apparently, by choice.

 

[FrDavid96]

I agree. That is what the commentary seems to be pointing to as well.

Walked out and never came back and went down with the ship are entirely different scenarios.

You are trying to defend the indefensible.

Read the OPs question. Clearly the question is about someone who disappears in a missing person scenario and is declared legally dead; it was not a question about someone who walked out and never came back.

Read the question.

Answer the question.

It’s elementary.