Hypothetical annulment question

[Phemie]

I almost asked you about this earlier because I remember you mentioning the process in your diocese.

But I know that here in the USA the tribunal does review such cases I was wondering what kind of documentation is produced.

Having dealt with this while helping a couple in another diocese finish the Tribunal process so they could get married in our parish, she required a certified copy of the registration of marriage which indicates where the marriage was celebrated and by whom (rather than the marriage certificate which usually only shows the town and the date), the divorce papers to show she was no longer legally married and her certificate of baptism which showed no record of marriage. The document that came to us from her diocese was not a “Decree of Nullity” but just a form saying she was free to marry with a check mark at the appropriate reason.

 

[dans0622]

Dan,

Your scenario is not at all possible.

The person’s “freedom to marry” is determined at the time of the marriage itself.

The fact that a marriage is later determined to be an invalid attempt, does not mean that the decree of nullity is retroactive in a way that causes one party to have been free-to-marry in the past.

In your scenario, the declaration of nullity (Steve-Sue) comes AFTER Steve attempts marriage with Barbara. At the time of the Steve-Barbara marriage, Steve was not free to marry. Therefore Steves’s attempt to marry Barbara was still invalid because at the time of the ceremony (Steve-Barb), he was still bound by his prior marriage to Sue.

What you’ve described is simply impossible.

Hello FrDavid96,

It seems you are looking at a decree of nullity as an “annulment” that only has an effect from the moment of publication and then foward in time. That’s not the way it works. A declaration of nullity does not make someone free to marry at the moment it was published. It declares a state that does and has always existed.

If Steve and Sue’s marriage is declared null/invalid, it always was such, ab initio. (Using that little bit of Latin ought to make me seem intelligent.) Therefore, Steve and Sue were declared to have never been bound to that “marriage.” How can they be impeded by a marriage bond that never existed?

Thanks for your time.

Dan

 

[TheMc]

Hello FrDavid96,

It seems you are looking at a decree of nullity as an “annulment” that only has an effect from the moment of publication and then foward in time. That’s not the way it works. A declaration of nullity does not make someone free to marry at the moment it was published. It declares a state that does and has always existed.

If Steve and Sue’s marriage is declared null/invalid, it always was such, ab initio. (Using that little bit of Latin ought to make me seem intelligent.) Therefore, Steve and Sue were declared to have never been bound to that “marriage.” How can they be impeded by a marriage bond that never existed?

Thanks for your time.

Dan

Agreed. Doesn’t an annulment simply state what is already true, instead of changing anything?

 

[1ke]

Agreed. Doesn’t an annulment simply state what is already true, instead of changing anything?

It doesn’t matter if the prior bond is later found to be null. Ligamen applies at the time the second marriage is contracted.

Can. 1085 §1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

§2. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly.

In other words, the Church already thought of that.

 

[1ke]

Unknown to that Tribunal, a year earlier, Sue wished to marry Robert, a free-to-marry Catholic and become Catholic herself. She presented a petition to the tribunal asking that her marriage to Steve be declared invalid because she intended to exclude children from their marriage. This is proven and the marriage was declared invalid from the beginning due to this defect in her marital consent.

It cannot be “unknown” to the Tribunal. In order to pursue a ligamen case, you must have all sacramental records. The nullity declaration is part of Sue and Steve’s sacramental records.

Since Steve hates Barbara and knows his canon law, as soon as his marriage to Barbara is declared invalid, he runs to the appeal tribunal and challenges the declaration of nullity (he has 15 days to do this). He says "this sentence was given on the basis of my supposed prior bond to Sue. The Church has definitively declared that there was never such a prior bond (he produces the documentation).

This is not correct. At the time they attempted marriage, a prior bond did exist. Canon 1085 covers this. Even if later proven invalid, ligamen existed *at the time *the parties attempted to contract the second marriage.

Can. 1085 §1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

§2. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly.

This sentence is clearly based on proofs that have now been shown to be false." It seems to me that the appeal tribunal would have to agree with Steve and “throw out” the decree that said the Steve-Barbara marriage was invalid. In that case, Barbara’s recourse would be to present her case to the tribunal again, based on some other ground of invalidity.

Nope. The putative marriage created the impediment of ligamen, per canon 1085.

I wonder if this makes any sense. It is rather convoluted but it has to be, in order to happen. Could it happen? Yes.

Yes it makes sense and yes the Church has a canon that covers it.

 

[Just_Lurking]

There are two questions here:

Q1. Does a putative but invalid prior bond invalidate a subsequent marriage of Catholics?

Q2. Does a putative but invalid prior bond invalidate a subsequent marriage of non-Catholics?

I agree with our canon lawyer dans0622 that the answer to both questions is “no”. For Q1, the subsequent marriage is illicit but not invalid, which is what canon 1085 §2 states.

 

[FrDavid96]

Hello FrDavid96,

It seems you are looking at a decree of nullity as an “annulment” that only has an effect from the moment of publication and then foward in time. That’s not the way it works. A declaration of nullity does not make someone free to marry at the moment it was published. It declares a state that does and has always existed.

If Steve and Sue’s marriage is declared null/invalid, it always was such, ab initio. (Using that little bit of Latin ought to make me seem intelligent.) Therefore, Steve and Sue were declared to have never been bound to that “marriage.” How can they be impeded by a marriage bond that never existed?

Thanks for your time.

Dan

Dan,

I can assure you that I do know how it works. That’s why I spend years in the Seminary learning it and years practicing it.

1Ke already quoted the canon so I won’t repeat it.

I will explain it though.

At the time of the second marriage in your scenario, one party was not free to marry because the first marriage (I think it was Steve/Sue?) had not yet been declared null. Steve attempted marriage, but he was still bound by the first marriage. The key word here is that he was “bound” by the first marriage. He could not give himself an annulment. He had to wait until the Church declared his first marriage to be an invalid attempt before he could contract that second marriage.

You are correct in saying that a declaration of nullity states that no true/valid marriage ever existed. However, the point is that even though we later learn that the first marriage was an invalid attempt, at the time of the second marriage, the first one still enjoyed the favor of the law (it was still presumed to be valid), and therefore Steve was not free to marry again. He is still bound by the first marriage until a marriage tribunal (or administrative decision, etc) declares the first one invalid and says that he is free to marry.

 

[FrDavid96]

There are two questions here:

Q1. Does a putative but invalid prior bond invalidate a subsequent marriage of Catholics?

Q2. Does a putative but invalid prior bond invalidate a subsequent marriage of non-Catholics?

I agree with our canon lawyer dans0622 that the answer to both questions is “no”. For Q1, the subsequent marriage is illicit but not invalid, which is what canon 1085 §2 states.

Bear with me here.

The answer to both questions is yes.

It is yes because of how you phrased the question.

Given (because it was in your question) that the marriage is putative that means that it has not yet been proven to be invalid; therefore it enjoys the favor of the law. That means that a second marriage cannot be validly contracted.

Only after the (attempted) marriage has been declared null (by either the formal process or an administrative decision) are the parties free to marry. Before that happens, they are both still bound by the first marriage. The fact that the first marriage might later be declared null doesn’t change this–even if we can say that it “certainly would” be declared null, it doesn’t change.

Keep in mind that canon 1085 says that one who is bound by a previous marriage invalidly attempts marriage, not just illicitly.

 

[NewEnglandPriest]

Can. 1085 §1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

§2. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly.

Here is the commentary on this canon from the Canon Law Society of America:

To avoid confusion and uncertainty about the validity of second and subsequent marriages, canon 1085 §2 prohibits the celebration of a new marriage until the nullity or dissolution of all the party’s previous marriages is legitimately proven…Whether or not it should be classified as an impediment, the prohibition does not invalidate marriage entered into in violation of it and does not bind non-Catholics when they marry amongst themselves. If a Catholic remarries according to canonical form after a divorce but before a declaration of nullity, the marriage is illicit but valid and need not be convalidated after the previous marriage is declared null…

Those who maintain that canon 1085 §2 establishes a distinct impediment of ecclesiastical law have advanced a novel approach to dealing in a tribunal setting with a petitioner who has multiple marriages. They propose that the tribunal declare the petitioner’s second and subsequent marriages invalid on the ground of the impediment of prior bond and then declare nullity of the first union, the presumed source of the impediment, on the ground of some defect of consent. This approach, while convenient, has been “directly condemned” by the Apostolic Signatura as having “no trace in law or approved doctrine.” A tribunal must deal with each of a petitioner’s marriages as a separate case on its own merits.

 

[FrDavid96]

Can. 1085 §1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

§2. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly.

Here is the commentary on this canon from the Canon Law Society of America:

Do you have a link to that section of The Impediment of Ligamen and Multiple Marriages by Morrissey?
How about a link to
RRAO 1987.60?

 

[NewEnglandPriest]

Do you have a link to that section of The Impediment of Ligamen and Multiple Marriages by Morrissey?
How about a link to
RRAO 1987.60?

I was just quoting from the Commentary in the canon law book I had in my office.
Oddly, the CLSA webpage has the 1986 RRAO but not the 87…

However, I did find this on the internet:

heideggerm1.blogspot.com/2011/02/issue-of-ligamen-and-catholic-marriage.html

One relevant case involves Joseph, Irene, et. al. Joseph contracted marriage in the Catholic Church with Ella on January 15, 1931. He then married Gratia in the presence of a Protestant minister on January 11, 1936. Styling himself a bachelor, he contracted marriage in the Catholic Church with Irene on September 9, 1936. When she became aware of her spouse’s marital history, Irene obtained a civil divorce and petitioned for a declaration of nullity on the grounds of ligamen. She received an affirmative decision in the first instance and a negative decision in the second. The case there was heard coram Wynen. Wynen insisted that if a serious doubt arises about the validity of a first marriage, then the decision about the validity of the second must be held in suspense until this doubt is resolved. The second marriage would be valid (assuming the parties gave naturally sufficient consent) if the first was invalid. The auditor states that the “marriage which Joseph and Irene contracted with each other on September 9, 1936 must be declared invalid if it is evident that the man at the time was bound by another valid marriage.” In fact, Joseph’s marriage to Ella was invalid by reason of nonage on her part; hence, his marriage to Irene could not be annulled on grounds of ligamen. The Rota did not consider it relevant that Joseph’s first marriage had not yet been declared invalid. If anyone were bound by an ecclesiastical impediment of ligamen, a baptized Roman Catholic certainly would be, but the Rota’s analysis of this case provides no support for this hypothesis.

Its obviously the old code, but still relevant to some extent.

 

[Vico]

From 2004: greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=00BxjR

Father Mike, I was following this paragraph from “The Impediment of Ligamen in Multiple Marriages,” a JCL thesis by Rev. Mark Pautler:
When a Catholic attempts marriage in the presence of a civil or non-Catholic minister, assuming no dispensation from canonical form has been granted, such a union would be considered a nullum marriage: an invalid marriage which lacks the species or appearance of marriage and which does not enjoy the presumption of validity. No judicial process is required for the spouses to separate and they are able to contract new marriages.

 

[NewEnglandPriest]

From 2004: greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=00BxjR

Father Mike, I was following this paragraph from “The Impediment of Ligamen in Multiple Marriages,” a JCL thesis by Rev. Mark Pautler:
When a Catholic attempts marriage in the presence of a civil or non-Catholic minister, assuming no dispensation from canonical form has been granted, such a union would be considered a nullum marriage: an invalid marriage which lacks the species or appearance of marriage and which does not enjoy the presumption of validity. No judicial process is required for the spouses to separate and they are able to contract new marriages.

That’s something that is not in dispute…

 

[Vico]

That’s something that is not in dispute…

Sorry, I thought FrDavid96 was looking for such.

 

[FrDavid96]

Sorry, I thought FrDavid96 was looking for such.

On a different thread.

The point I was making with regard to that is that the civil marriage is not merely “presumed” invalid–it has to be a known fact not a presumption, because a presumption by the very definition of the word means that one does not know all the facts involved.

I would say that in Fr M.P.'s thesis (the one just quoted) that he is referring to an attempted marriage after (and specifically not before) the facts are established as such. He’s also speaking in general terms (that’s the context) about marriage he’s not writing about a particular situation.

It’s one thing to talk about hypotheticals and general situations, but when it comes to a real-life situation, the Church does not deal in presumptions and assumptions but in actual proven facts.

We can say that “a marriage w/o dispensation from form” is invalid.

However if we’re talking about the “the marriage of John Doe and Jane Smith” we don’t make presumptions but wait until the facts are known and proven. This is true even if the burden of proof is rather easy to meet. But it still has to be met.

 

[Katmomdo]

*Assume all parties are Catholic.

Let’s sat A and B are married in the Church but divorce.
Neither seeks an annulment.
B then re-marries to C.
B and C also divorce but C seeks an annulment and gains it on the basis of the prior marriage between A and B.
A then seeks to annul the marriage of A and B and gains it.
What would happen then to the annulment of B and C’s marriage - can an annulment be rescinded? Or would the validity of A and B’s marriage have been investigated as part of the first annulment (B and C)? So is this situation even possible?

Sorry for the complicated nature of the question. My knowledge of annulments and the processes is very limited so there may be some very obvious answer.

---

Emily

It seems to me that the marriage of B&C is not valid in the Church as there was an impediment and that their marriage may fall under the process of Ligumen. i.e “B” was not free to marry at the time of the marriage to “C”.*

 

[Katmomdo]

*Assume all parties are Catholic.

Let’s sat A and B are married in the Church but divorce.
Neither seeks an annulment.
B then re-marries to C.
B and C also divorce but C seeks an annulment and gains it on the basis of the prior marriage between A and B.
A then seeks to annul the marriage of A and B and gains it.
What would happen then to the annulment of B and C’s marriage - can an annulment be rescinded? Or would the validity of A and B’s marriage have been investigated as part of the first annulment (B and C)? So is this situation even possible?

Sorry for the complicated nature of the question. My knowledge of annulments and the processes is very limited so there may be some very obvious answer.

---

Emily

It seems to me that the marriage of B&C is not valid in the Church as there was an impediment and that their marriage may fall under the process of Ligamen. i.e “B” was not free to marry at the time of the marriage to “C”.*

 

[Vico]

On a different thread.

The point I was making with regard to that is that the civil marriage is not merely “presumed” invalid–it has to be a known fact not a presumption, because a presumption by the very definition of the word means that one does not know all the facts involved.

I would say that in Fr M.P.'s thesis (the one just quoted) that he is referring to an attempted marriage after (and specifically not before) the facts are established as such. He’s also speaking in general terms (that’s the context) about marriage he’s not writing about a particular situation.

It’s one thing to talk about hypotheticals and general situations, but when it comes to a real-life situation, the Church does not deal in presumptions and assumptions but in actual proven facts.

We can say that “a marriage w/o dispensation from form” is invalid.

However if we’re talking about the “the marriage of John Doe and Jane Smith” we don’t make presumptions but wait until the facts are known and proven. This is true even if the burden of proof is rather easy to meet. But it still has to be met.

Thank you for the clarification.