"Discovering an Impediment Right Before the Wedding." An article on this when this situation actually happened

  • Thread starter Thread starter mdgspencer
  • Start date Start date
Status
Not open for further replies.
Not a good article… Where is the “dislike” button?

Dan
 
Ay-yai-yai.

This article is so horrible! And a JCL wrote it?! Yikes, even worse.
 
I’ve used some links to this site before (to articles that were actually correct), but i haven’t read through a lot of the content.

But after this… I won’t ever link to it again!
 
Wasn’t it clarified by a dubium back in the 1940s that Canon 1060, or whatever the number was in the old Code, did not apply to a marriage celebrated outside the Church without a dispensation?
 
Last edited:
Phemie said:
Wasn’t it clarified by a dubium back in the 1940s that Canon 1060, or whatever the number was in the old Code, did not apply to a marriage celebrated outside the Church without a dispensation?
Click to expand...
The canon law was revised in 1983 which abrogated the 1917 canon law.

1983 CIC
Canon 1060 Marriage enjoys the favour of law. Consequently, in doubt the validity of a marriage must be upheld until the contrary is proven.
Click to expand...
So there is doubt until the civil marriage and divorce certificates are presented along with proof that at the time of the civil marriage one of them was Catholic. So she would still need to file paperwork to get an official Church decree stating that this previous union had a “lack of form” and thus was not a marriage and that could be done by the pastor. See the Military Archdiocese note on the matter:

 
Canon 1060 is inapplicable to lack of form cases because such unions lack the semblance of validity under canon law. They are handled by an administrative prenuptial investigation rather than a judicial process involving an official petition, citation of the other Party, etc, culminating in a sentence passed by a judge. Any decree would simply be written to confirm the Party’s freedom to marry, rather than to declare the nullity of the civil union, which never enjoyed the favour of the law to begin with.
[/quote]

As posted, the pastor could do it. It is not assumed that the marriage was invalid. The freedom to marry is not known before the documentation is presented and the Church acts. The Church does not know if either of them were Catholic at the time of the civil marriage or if there were prior marriages and divorces.
 
Last edited:
…which is not the same as saying that the marriage does not enjoy the favour of the law, and so validity is not upheld until the contrary is proved. This is because once the facts are presented (a Catholic attempted marriage in a civil union without dispensation from canonical form), no further proofs or argumentation is needed to arrive at the conclusion of invalidity. There is no judicial process, and thus, there is no declaration of nullity.
Vico said:
As posted, the pastor could do it.
Click to expand...
That is true, but it is not the problem that everyone on this thread is pointing out. The author also claims that without an “annulment” of her civil union, the woman in question would attempt marriage invalidly her second time—which is simply untrue.
[/quote]

I think you mean this that cannon lawyer wrote about the parish priest handling the marriage application:
… it is very possible that he himself could declare her first marriage to be null for lack of canonical form right away …
Click to expand...
The diocese of Bridgeport has this on their form for Petition for Declaration of Nullity Lack of Canonical Form Canon 1108:
The nullity of marriage due to lack of canonical form (Canon 1108) occurs when a Catholic does not marry before a Catholic priest or deacon and two witnesses. For example, when a Catholic marries in another non-Catholic or non-Orthodox church, or before a Justice of the Peace or another ceremony, without proper dispensation from the canonical form of the Roman Catholic Church. Such a marriage is declared null by the Diocesan Tribunal after examining proper documentation submitted with this petition. Only a priest or a deacon, after interviewing the Petitioner, may submit this form. There is no fee associated with the process.
Click to expand...
http://www.dob-tribunal.com/uploads/4/4/8/1/44818299/lack_of_canonical_form.pdf

Form from Archdiocese of Denver:
I, the undersigned Petitioner, hereby request the Metropolitan Tribunal of the Archdiocese of Denver to investigate my marriage to the respondent listed previously, based on the information provided with this petition, according to the Catholic Church Law. If the facts and law warrant such a decision, I ask that it be declared null from the beginning on the ground of Lack of Canonical Form.
Click to expand...

Diocese of Baker
When a wedding occurs and at least one party is a baptized Catholic, the exchange of vows must be received on behalf of the Church by a Catholic priest or deacon and in the presence of two witnesses. Marriage nullity may be decreed if the proper canonical form is not observed, without a dispensation. In the Diocese of Baker, a Decree of Nullity for Lack of Canonical Form is issued by the Office of the Tribunal.
Click to expand...
https://www.dioceseofbaker.org/types-of-cases
 
Last edited:
…in which case, the decision of the pastor would not be a declaration of nullity.

Also, it’s “canon lawyer”. 😉
Vico said:
The diocese of Bridgeport has this on their form for Petition for Declaration of Nullity Lack of Canonical Form Canon 1108:
Click to expand...
Some dioceses do require lack of form cases to be handled by the Tribunal, but this does not mean that judicial processes are necessary. Nor is investigating a lack of form case truly a judicial process anyway, as a conclusion is arrived at by looking at the facts of the case—established by the necessary documentation—without the need for additional proofs or argumentation. The defender of the bond does not participate.

I don’t understand why you insist on arguing about this, as there is nothing to argue about. If you have a problem with the favour granted by the PCLT, take it up with the PCLT.
[/quote]

What does PCLT mean?

Did it appear to you to be an argument? I am posting what the Church has published. Note also that there is the matter of defection (rare) that if a Catholic formally defected from the Catholic Church between November 27, 1983 and December 1, 2010, he or she is not bound by Canonical Form.
 
Last edited:
Vico said:
40.png
Phemie:
Wasn’t it clarified by a dubium back in the 1940s that Canon 1060, or whatever the number was in the old Code, did not apply to a marriage celebrated outside the Church without a dispensation?
Click to expand...
The canon law was revised in 1983 which abrogated the 1917 canon law.

1983 CIC
Canon 1060 Marriage enjoys the favour of law. Consequently, in doubt the validity of a marriage must be upheld until the contrary is proven.
Click to expand...
So there is doubt until the civil marriage and divorce certificates are presented along with proof that at the time of the civil marriage one of them was Catholic. So she would still need to file paperwork to get an official Church decree stating that this previous union had a “lack of form” and thus was not a marriage and that could be done by the pastor. See the Military Archdiocese note on the matter:

http://files.milarch.org/forms/peti...f-nullity-due-to-a-lack-of-canonical-form.pdf
Click to expand...
The canon on presumption of validity didn’t change, though, only the canon’s number changed. So if the previous canon didn’t apply to marriages outside the church, why would Canon 1060, simply a renumbering, apply to them?
 
The Pontifical Council for the Interpretation of Legislative Texts, which has explicitly declared that the judicial process is not necessary for lack of form cases.
Vico said:
I am posting what the Church has published.
Click to expand...
A few documents from a few dioceses hardly constitute “what the Church has published”. To be clear, those documents aren’t even laws, not even particular law governing their respective dioceses. Furthermore, a lot of forms like the ones you posted are written in a manner so that laity untrained in canon law can understand it, even if it means not making distinctions and using the word “annulment”, which is technically incorrect terminology. A bad practice in my opinion, but it does happen.

In any case, to pull some documents issued by some dioceses off the Internet hardly demonstrates that canon 1060—in general—applies to lack of form cases. It does not apply. Period. To say otherwise is erroneous, and exactly the same error of the canonist whose article is posted in the OP. Other posters seem to recognise this…
[/quote]

I wrote: “It is not assumed that the marriage was invalid,” and you pointed out that is was not the same as Canon 1060. I gave no objection to your comment, so there is no insistence.

Note that in the posted forms none refer to Canon 1060. Those forms are to show the common practice and what the application is called in practice.
 
Phemie said:
…
The canon on presumption of validity didn’t change, though, only the canon’s number changed. So if the previous canon didn’t apply to marriages outside the church, why would Canon 1060, simply a renumbering, apply to them?
Click to expand...
I would like to read the thing you refer to so I might understand it. A difference in 1983 code is that those Latin Catholics (not eastern Catholic) that formally defected were not bound to canonical form, so there could be a civil valid marriage for them.

The two codes you refer to are shown below, 1014 and 1060:

1917 CIC
Can 1014. Matrimonium gaudet favore iuris; quare in dubio standum est pro valore matrimonii, donec contrarium probetur, salvo praescripto can. 1127.

Can 1127. In re dubia privilegium fidei gaudet favore iuris.
Click to expand...
1983 CIC
Can 1060 Matrimonium gaudet favore iuris; quare in dubio standum est pro valore matrimonii, donec contrarium probetur.

Can 1127. In re dubia privilegium fidei gaudet favore iuris.
Click to expand...
Dignitas Connubii
Art. 5 – § 1. Causes of the nullity of marriage can be decided only through the sentence of a competent tribunal.

§ 2. However, the Apostolic Signatura enjoys the faculty of deciding by decree cases of the nullity of marriage in which the nullity appears evident; but if they require a more detailed study or investigation the Signatura is to remit them to a competent tribunal or another tribunal, if need be, which is to handle the cause according to the ordinary procedure of the law.

§ 3. However, in order to establish the free state of those who, while bound to observe the canonical form of marriage according to can. 1117, attempted marriage before a civil official or non-Catholic minister, it is sufficient to use the prematrimonial investigation in accordance with cann. 1066-1071(15).
Click to expand...
http://www.vatican.va/roman_curia/p...trptxt_doc_20050125_dignitas-connubii_en.html
 
Phemie said:
Wasn’t it clarified by a dubium back in the 1940s that Canon 1060, or whatever the number was in the old Code, did not apply to a marriage celebrated outside the Church without a dispensation?
Click to expand...
You are on the right track but the topic of the response was not c. 1060 or c. 1014 of the 1917 Code, which deals with marriage and the “favor of law.” The clarification was on what marriages can be called “putative” and the referenced canon was c. 1015.4 (1917 Code). Does a marriage have to be “celebrated” before the Church (i.e., in accord with the requirements of canonical form) in order to be called “putative”? The answer was “yes.”

The 1983 Code defines putative marriage in c. 1061.3 and the response (which was from January, 1949) still holds. So-called “lack of form” marriages are not putative marriages since they are not “celebrated.”

Relating this to c. 1060, a putative marriage enjoys the favor of law (even though it is, by definition, invalid). A “lack of form” union, however, is not even (in law) an invalid marriage. It does not enjoy the favor of law because, in the law of the Church, it doesn’t exist.

Dan
 
mdgspencer said:
She did not tell her priest she was civilly married because she did not think it mattered”…
Click to expand...
I don’t see how this can be possible. Civil papers are asked for a Church wedding, and a marriage is noted in a birth certificate. Unless it is not the case in all countries…
 
acanonlawyer said:
…
So-called “lack of form” marriages are not putative marriages since they are not “celebrated.”
…
Click to expand...
So then, in the case of a formally defected Catholic that married a non-Catholic civilly (at a time when the canon law did not require the canonical form between November 27, 1983 and December 1, 2010), the marriage would have the favor of law, having been celebrated in an acceptable non-Catholic form.
 
Vico said:
So then, in the case of a formally defected Catholic that married a non-Catholic civilly (at a time when the canon law did not require the canonical form between November 27, 1983 and December 1, 2010), the marriage would have the favor of law, having been celebrated in an acceptable non-Catholic form.
Click to expand...
Yes. That is true.

Dan
 
Status
Not open for further replies.
Back
Top