Birth control and invalid marriage

[Blue_Horizon]

CCC 1664 Unity, indissolubility, and openness to fertility are essential to marriage. Polygamy is incompatible with the unity of marriage; divorce separates what God has joined together; the refusal of fertility turns married life away from its “supreme gift,” the child (GS 50 § 1).

That is not the most of robust connections to run your conclusion - which is essentially a logical inference from Canon Law but not explicitly stated in Canon Law.

The question hinges on what Canon Law in 1982 by “If, however, either or both of the parties by a positive act of the will exclude marriage itself, some essential element of marriage, or some essential property of marriage, the party contracts invalidly” meant by “essential element”.

You have quoted the CCC which was written much later.
Surely we need to answer this question from the same document if at all possible.
And a quick look just now provides us the answer in Canon 1056.

" 1056 The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament."

No mention of procreation at all. That has been debated previously in the wider Church as you note in GS, but is intentionally excluded here!
This accords with my memory that there has been (and still is) debate and various positions on this point.

I agree that the theology may be evolving to the point that one day a firm intention by both couples not to ever have children may be Canonical grounds for denying the validity of a marriage.

But from the above it seems clear this discipline was not definitively intended in the 1982 Code of Canon Law.

No, because that’s not true and I clearly stated the opposite in my prior post.

I do understand your disagreement. I am asking if you can explain how your interpretation of Canon Law means that a marriage like that of Joseph and Mary today would still not be invalid. They had a permanent intention never to procreate.

 

[tee_eff_em]

I do understand your disagreement. I am asking if you can explain how your interpretation of Canon Law means that a marriage like that of Joseph and Mary today would still not be invalid. They had a permanent intention never to procreate.

I am not sure if this is part of your wider point or not, but I only wish to note:

There is a difference between *openness to fertility *and the intention to procreate. And contrapositively, the *intention never to procreate *is not the same as being not open to fertility.

tee
Has Not Passed the Canon Bar In The Last 24 Hours

 

[dans0622]

Can you quote where canon law defines the essential elements of marriage? …

Hello,

That can’t be done because the Code doesn’t have such a definition, like there is for “essential properties.” The “essential properties” in c. 1056, by the way, are not the same as the “essential elements” of c. 1101.2 (which also mentions essential properties).

“Essential elements” of marriage is a new expression in canon law and since it is not defined in law, what it actually means is left to jurisprudence. In jurisprudence, it is understood that the *ordination *of marriage to the “good of children” and to the “good of the spouses” is/are “essential elements.” There could be other “essential elements”, too, such as the right to the conjugal act and the right to a communion of life (which is, itself, not well-defined).

Dan

 

[Blue_Horizon]

I am not sure if this is part of your wider point or not, but I only wish to note:

There is a difference between *openness to fertility *and the intention to procreate. And contrapositively, the *intention never to procreate *is not the same as being not open to fertility.

tee
Has Not Passed the Canon Bar In The Last 24 Hours

Yes I think you are on to something. However it does seem difficult to theologically justify a marriage where there is a permanent intention never to have children, never to actively till fertile soil. Most would not see openess to fertility logically compatible with that choice. However Aquinas somehow manages to explain this is possible but I probably do not have the intellectual horsepower to be convinced by his arguments on this matter .

Regardless, pastorally I would be extremely reticent to deny marriage to a couple who allegedly intended never to have children of their own. Better to give it a go, people mature.

 

[Blue_Horizon]

Hello,

That can’t be done because the Code doesn’t have such a definition, like there is for “essential properties.” The “essential properties” in c. 1056, by the way, are not the same as the “essential elements” of c. 1101.2 (which also mentions essential properties).

“Essential elements” of marriage is a new expression in canon law and since it is not defined in law, what it actually means is left to jurisprudence. In jurisprudence, it is understood that the *ordination *of marriage to the “good of children” and to the “good of the spouses” is/are “essential elements.” There could be other “essential elements”, too, such as the right to the conjugal act and the right to a communion of life (which is, itself, not well-defined).

Dan

Good point Dan.
This well coincides with my own views that the Church has yet to clearly decide on this matter of validity and the preceeding intention never to have children.

Having re researched the matter with Thomistic commentators I have unearthed some very interesting points that show how complex the matter is.

Aquinas, speaking of Joseph and Mary, seems to state that procreationall intent is implicit in the willingness to give ones partner authority over ones body. And that implicit procreationall intent is not vitiated should ones partner choose never to exercise that authority.
Isn’t that beautiful. Mary would have given up her virginity had Joseph chosen to exercise his rights and even God would have bowed to this as He established this right in marriage Himself. Yet Joseph, responsive to the sensitivities of both Mary and God, freely acceded to their counsel though he could have done otherwise without injustice.

I think the same may hold for Catholic marriages.
So long as the permanent intent not to have children still freely allows the other potential enjoyment of one’s body then procreative intent remains implicit all the same.

Aquinas further adds that procreation is as much about upbringing as it is about production. Therefore the act of rearing Jesus declares the presence of implicit procreative intent even if they reciprocally chose never to have children of each other from the start.

 

[dans0622]

Good point Dan.
This well coincides with my own views that the Church has yet to clearly decide on this matter of validity and the preceeding intention never to have children.
…
Aquinas, speaking of Joseph and Mary, seems to state that procreationall intent is implicit in the willingness to give ones partner authority over ones body. And that implicit procreationall intent is not vitiated should ones partner choose never to exercise that authority.
Isn’t that beautiful. Mary would have given up her virginity had Joseph chosen to exercise his rights and even God would have bowed to this as He established this right in marriage Himself. Yet Joseph, responsive to the sensitivities of both Mary and God, freely acceded to their counsel though he could have done otherwise without injustice.

I think the same may hold for Catholic marriages.
So long as the permanent intent not to have children still freely allows the other potential enjoyment of one’s body then procreative intent remains implicit all the same. …

Yes. That’s the distinction, seen in jurisprudence, between exchanging this “right” of marriage and the exercising of this right. The exchange of the right is necessary but the exercising of the right is not.

As to the question of both parties excluding an essential element/property of marriage (e.g., the good of children), it can happen. I’m involved with a case right now that could very well fit that description and I’ve seen others.

Dan

 

[Blue_Horizon]

Yes. That’s the distinction, seen in jurisprudence, between exchanging this “right” of marriage and the exercising of this right. The exchange of the right is necessary but the exercising of the right is not.

As to the question of both parties excluding an essential element/property of marriage (e.g., the good of children), it can happen. I’m involved with a case right now that could very well fit that description and I’ve seen others.

Dan

While protecting the appellants right to anonymity are you able to give a generic description of the case and the sort of judgement that can be made if found. I gather you are speaking of a Marriage Tribunal and you are a Clinical Psychologist or similar expert witness?

What does “the good of children mean” exactly in your context.

 

[tee_eff_em]

While protecting the appellants right to anonymity are you able to give a generic description of the case and the sort of judgement that can be made if found. I gather you are speaking of a Marriage Tribunal and you are a Clinical Psychologist or similar expert witness?

D’ya ever notice that [user]dans0622[/user] never makes use of my favorite disclaimer*, “I Am Not A Canon Lawyer”? There’s a reason for that.

(* Sometimes I feel like I’m the only one who disclaims such, and/or the only poster who ever gets into trouble when he forgets to do so, but that;s another thread. )

tee

 

[dans0622]

While protecting the appellants right to anonymity are you able to give a generic description of the case and the sort of judgement that can be made if found. I gather you are speaking of a Marriage Tribunal and you are a Clinical Psychologist or similar expert witness?

What does “the good of children mean” exactly in your context.

I have a canon law degree and my typical function is defender of the bond.

As a matter of principle, it seems to me that if one Party can exclude an essential aspect (a non-canonical term but I’ll use it anyway) of marriage, both Parties can. Regarding children, circumstances could be like this:

Two … mature people–let’s say they are about 45 years old–decide to marry. In their “past life”, they have had children. They are of the mind that they are simply “too old” to have more children even though they are still fertile. This was their thinking before they even met. They discuss the matter among themselves and both agree: “we want to do what is necessary to avoid the conception of children. Having children at our age would be unwise and even dangerous. Frankly, the very notion of having children at this time in our lives is quite laughable. Even if you would change your mind about this in the future, there is no way I’d go along with it. This is *my *decision. … Isn’t it great that we agree on this!”

Less common, but still something I’ve seen, is a couple who agree that they will have an “open marriage” and so they exclude fidelity.

Dan

 

[twf]

Hello,

Technically, you’re not talking about an “impediment” but a possible defect in your consent. Regarding the “if he cheats, I divorce” line of thought, that’s not something that necessarily proves that your consent was defective. Even a Catholic can legitimately separate because of adultery.

If you continue to have doubts about your marriage (which I don’t think are warranted, for what it’s worth), talk to a local priest about it.

Dan

Correct me if I’m wrong, but it’s also my understanding that if one partner privately has a doubt about his or her consent (a doubt rather than an obvious glaring impediment), he or she can privately reaffirm the consent at any moment and correct the defect. Isn’t there a provision for this in canon law?

 

[dans0622]

Correct me if I’m wrong, but it’s also my understanding that if one partner privately has a doubt about his or her consent (a doubt rather than an obvious glaring impediment), he or she can privately reaffirm the consent at any moment and correct the defect. Isn’t there a provision for this in canon law?

I’d say it has to go beyond a “doubt” and rise to the level of … moral certainty, let’s say. That’s not to say that a person who has a doubt cannot try to remove that doubt by forming an act of consent that is (more) complete.

You are correct about the substance of what you said, though. If a person’s consent is defective (such that the consent was incapable of “making” marriage), that person can give consent privately and in secret (and this will “make” marriage). This is stated in canon 1159.

The caveat is that if the defect itself can be proven to have been present, then that person has to express consent in accord with canonical form (again, c. 1159). This applies only to Catholics.

Dan

 

[JosephHope]

I think that the Catholic Church should be more understanding in this matter, especially for people who do get married in order to get rid of porn addiction, fornication and other sins but are too poor to afford having children every time they make love because abstinence is a huge virtue but one or the other might succumb into temptation and adultery. It is an extremely delicate topic.

 

[1ke]

I think that the Catholic Church should be more understanding in this matter, especially for people who do get married in order to get rid of porn addiction, fornication and other sins but are too poor to afford having children every time they make love because abstinence is a huge virtue but one or the other might succumb into temptation and adultery. It is an extremely delicate topic.

Lots of people think the Church, and other people, should be more understanding of their sin. That is not the mission of the Church. The Church’s role is to bring people to the truth about their sin, to reconcile them to Christ, and bring people to salvation.

Lots of people like to ignore the latter apart of Matthew’s gospel because they want to pretend God’s judgment isn’t real. Whoa to those of us who fail to heed Christ’s words.

 

[Blue_Horizon]

I have a canon law degree and my typical function is defender of the bond.

As a matter of principle, it seems to me that if one Party can exclude an essential aspect (a non-canonical term but I’ll use it anyway) of marriage, both Parties can. Regarding children, circumstances could be like this:

Two … mature people–let’s say they are about 45 years old–decide to marry. In their “past life”, they have had children. They are of the mind that they are simply “too old” to have more children even though they are still fertile. This was their thinking before they even met. They discuss the matter among themselves and both agree: “we want to do what is necessary to avoid the conception of children. Having children at our age would be unwise and even dangerous. Frankly, the very notion of having children at this time in our lives is quite laughable. Even if you would change your mind about this in the future, there is no way I’d go along with it. This is *my *decision. … Isn’t it great that we agree on this!”

Dan

That sounds a good real world experienced example Dan. To be honest my Catholic intuition is that there is noting of concern here so long as the what is necessary bit was NFP. And even if it was ABC that is a different issue anyway.

Aquinas appears to hold that there are numerous ways to satisfy the not explicit CL “requirement” that marriage is ordered to “having kids.” Simply rearing children would satisfy for him. So this couple, if they continue to look after their offspring (do they ever truly stop needing parental care ) … that in my book would suffice if they ticked all the other boxes of Christian virtue.
Thoughts?

 

[Blue_Horizon]

Lots of people think the Church, and other people, should be more understanding of their sin. That is not the mission of the Church. The Church’s role is to bring people to the truth about their sin, to reconcile them to Christ, and bring people to salvation.

Lots of people like to ignore the latter apart of Matthew’s gospel because they want to pretend God’s judgment isn’t real. Whoa to those of us who fail to heed Christ’s words.

Lots of older brothers love to use God as an excuse for judging their wayward younger brothers who have all the fun and get forgiven too easily at the end.
They must be made to suffer and know their licence is unacceptable because to do otherwise is to make me wonder if all my own moral sacrifices were necessary or whether my own attitude to my Father is what He wants. .

Yet in today’s readings Jesus says he wants mercy not sacrifice.

 

[1ke]

Lots of older brothers love to use God as an excuse for judging their wayward younger brothers who have all the fun and get forgiven too easily at the end.
They must be made to suffer and know their licence is unacceptable because to do otherwise is to make me wonder if all my own moral sacrifices were necessary or whether my own attitude to my Father is what He wants. .

Yet in today’s readings Jesus says he wants mercy not sacrifice.

God’s mercy is found in the Sacrament of Reconciliation.

 

[Blue_Horizon]

I’d say it has to go beyond a “doubt” and rise to the level of … moral certainty, let’s say. That’s not to say that a person who has a doubt cannot try to remove that doubt by forming an act of consent that is (more) complete.

You are correct about the substance of what you said, though. If a person’s consent is defective (such that the consent was incapable of “making” marriage), that person can give consent privately and in secret (and this will “make” marriage). This is stated in canon 1159.

The caveat is that if the defect itself can be proven to have been present, then that person has to express consent in accord with canonical form (again, c. 1159). This applies only to Catholics.

Dan

As Dan suggest, the person has an obligation to do what is possible to turn the doubt into a moral certainty and so the cards may fall either way.

If one becomes more sure over time that the nays have it then Card Ritz was clear what must be done. One must cease treating the other person as ones husband and have this position objectively clarified by a Tribunal.
If the Tribunal is unable to confirm ones own moral certainty (which is not the same as saying the putative marriage is truly valid before God) … then one must still separate otherwise you are violating your own conscience by what is in effect perceived fornication.
And indeed, it could be but maybe for purely technical issues the Tribunal is unable to yet find in your favour.

From my own experience of struggling with such life changing doubts (not marriage) over 10 years…it is a David Goliath situation. The status quo is Goliath, as it should be. So if those doubts are seriously impacting on your well being over a long period of time, if they arose close to the start, if you have been dutiful to your status to the best of your strength…then David is real.
For how could what is unreal arise against such overwhelming pressures to maintain your original “choice”. Clearly something was never right ab initio.

Just some advice from one who has been there.

 

[TravisandJill]

So to clarify, IF unknown to my former Protestant self that during the marriage vows I had some type of defect towards the permanence of marriage or children and consequently my marriage WAS not valid from the start, all that would be required of a person is to renew consent in their mind?

 

[1ke]

So to clarify, IF unknown to my former Protestant self that during the marriage vows I had some type of defect towards the permanence of marriage or children and consequently my marriage WAS not valid from the start, all that would be required of a person is to renew consent in their mind?

Yes.

But PLEASE, PLEASE talk to your pastor about your sensitive conscience. You have expended WAY too much energy on this and your marriage is NOT invalid.

 

[TravisandJill]

Will do 1ke