Marriage (hypothetical situation)

[catherinette]

So this thread isn’t about a particularly important question, it was just about a hypothetical scenario I was curious about, and I wondered what other people thought. I’m sure most people are familiar with the movie Cast Away (if you haven’t seen it, this is your spoiler alert). In the movie, Tom Hank’s character Chuck is in a relationship with a woman named Kelly, and after he is involved in the plane crash and presumed dead, she moves on and marries another man. For the sake of argument, let’s say Chuck and Kelly had actually been married in a Catholic Church before the plane crash. When he returns, is her responsibility to her new husband, or to Chuck?

My thoughts are that through no fault of her own, she would have been married the second time despite the fact that she wasn’t free to marry since her husband was still alive. Kelly would have been invincibly ignorant of the fact that Chuck was still alive, so she would have not committed any kind of sin in having married the second man and lived with him. But I suppose the second marriage is actually invalid, and she is still married to Chuck.

 

[saskatoon]

kelly would not have sinned by remarrying, since it was a valid reason chuck was dead. However, she would have to leave her second husband after she found out about chuck being alive. I am not sure how a divorce would work in a situation like this, but she would return to chuck since he is still her husband.

 

[Peggy_in_Burien]

Usually someone can be declared legally dead after 5 - 7 years. She would be a widow, at least civally, and allowed to marry again.

Is there something in Canon Law that would forbid her to remarry, since there was no actual proof her husband was dead?

And is there something in Canon Law that actually addresses the situation of her “dead” husband coming back?

This is a fascinating question. Thanks for bringing it up, Catherinette.

 

[Tosk]

She would be able to get an annulment from her second husband since she was not able to get married since she is still married to her first husband. Can’t imagine that the situation has ever come up other than in the movies.

 

[Just_Lurking]

From Theodore Mackin’s Divorce and Remarriage:

The most significant declaration on dissolution and remarriage coming from a Pope in the fifth century is from Leo I. Attila the Hun’s invasion of northern Italy in 452 was a disaster for the Roman army. Its defeat led to captivity for thousands of its officers and men. Some later returned from captivity; some did not. But in either case the bishops of the devastated north were faced with decisions about the painful situation of the wives of the captured soldiers. Could those whose husbands had simply disappeared without verification of death remarry? And what were those wives to do who after remarrying found their husbands returning from captivity?

Bishop Nicetas of Aquileia referred the second of these questions to Leo. The latter wrote in reply that the second unions must be ended, but since the wives had acted in good faith, they were not to be punished. However those who remained with their new consorts and refused to return to their husbands were to be excommunicated.

 

[Tosk]

From Theodore Mackin’s Divorce and Remarriage:

The most significant declaration on dissolution and remarriage coming from a Pope in the fifth century is from Leo I. Attila the Hun’s invasion of northern Italy in 452 was a disaster for the Roman army. Its defeat led to captivity for thousands of its officers and men. Some later returned from captivity; some did not. But in either case the bishops of the devastated north were faced with decisions about the painful situation of the wives of the captured soldiers. Could those whose husbands had simply disappeared without verification of death remarry? And what were those wives to do who after remarrying found their husbands returning from captivity?

Bishop Nicetas of Aquileia referred the second of these questions to Leo. The latter wrote in reply that the second unions must be ended, but since the wives had acted in good faith, they were not to be punished. However those who remained with their new consorts and refused to return to their husbands were to be excommunicated.

Can’t imagine you would really want to take your wife back after she already moved on and married someone else. I imagine in that bizarre situation it would be better to try and annul the first marriage so that the wife can go with her current lover.

 

[Peggy_in_Burien]

What of the poor men who had married the “widows” in good faith? What of any children of those second marriages?

Oh, I feel sorry for the poor woman, who had an abusive first husband, who thought she finally had release from him due to his death! Now she would be forced to go back to this awful situation.

Some how, I think it would only be fair to everyone to say once a person is declared dead, then that person is still “dead” even if they come back later. At least, it should be up to the widow to decide with whom she wishes to remain married. After all, it was done in good faith.

Does the Church have a protocol for declaring a spouse “dead”, in addition to the civil legalities?

 

[Just_Lurking]

Some how, I think it would only be fair to everyone to say once a person is declared dead, then that person is still “dead” even if they come back later.

Fair to everyone except the person who wasn’t really dead, but still lost everything.

Does the Church have a protocol for declaring a spouse “dead”, in addition to the civil legalities?

From canon law (see here):

PROCESS IN THE PRESUMED DEATH OF A SPOUSE

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.

§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.

§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

 

[Peggy_in_Burien]

Fair to everyone except the person who wasn’t really dead, but still lost everything.

From canon law (see here):

PROCESS IN THE PRESUMED DEATH OF A SPOUSE

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.

§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.

§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

Thanks so much for the information. It is a situation I hadn’t really thought about, but have seen as a device in movies.

 

[catherinette]

Fair to everyone except the person who wasn’t really dead, but still lost everything.

From canon law (see here):

PROCESS IN THE PRESUMED DEATH OF A SPOUSE

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.

§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.

§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

Interesting. How does one define moral certitude?

 

[Just_Lurking]

Interesting. How does one define moral certitude?

Can. 1608 §1. For the pronouncement of any sentence, the judge must have moral certitude about the matter to be decided by the sentence.

§2. The judge must derive this certitude from the acts and the proofs.

§3. The judge, however, must appraise the proofs according to the judge’s own conscience, without prejudice to the prescripts of law concerning the efficacy of certain proofs.

§4. A judge who was not able to arrive at this certitude is to pronounce that the right of the petitioner is not established and is to dismiss the respondent as absolved, unless it concerns a case which has the favor of law, in which case the judge must pronounce for that.

Pope Pius XII wrote about moral certitude in the context of annulments in some of his 1940s addresses to the Roman Rota, but they are in Italian. An English summary can be found here:

Judges should not have resort to presumptions when there is sufficient evidence at hand; moral certainty lies between absolute certainty and mere probability; it lies beyond well-founded or reasonable doubt, and is both necessary and sufficient for judgment even in the face of the possibility of achieving absolute certainty in a particular case; it can arise from varied indicators which, taken alone, do not provide moral certainty, but whose coincidence in a case suggests a common origin in truth; moral certainty cannot exist if, objectively speaking, there are probable indications of the contrary in a case; judicial procedures should assist, and not impede, the search for truth, but conflicts in this area are a matter for reference to the legislator; the judge shall apply his own knowledge and conscience in the “free weighing” evidence according to law, but never in such a way as to allow procedural law to overcome his personal certainty about an issue (such conflicts usually being apparent, not real); and, moral certainty admits of degrees depending on the subject matter being weighed.

 

[SaltySirena]

Oh, I feel sorry for the poor woman, who had an abusive first husband, who thought she finally had release from him due to his death! Now she would be forced to go back to this awful situation.

Nice leap, here. Even fictional men struggle under the assumption that they are abusive ogres. Jeez…

 

[Peggy_in_Burien]

Nice leap, here. Even fictional men struggle under the assumption that they are abusive ogres. Jeez…

I don’t know any fictional men…nor do I know any ogres…

I’m not making any leap from anything except the example given by the poster ahead of me. That poster sited a situation in early church times of men being presumed dead in some battle. I only stated the case of a possible woman who may have had an abusive husband. Divorce was just not done in those days, and I am sure she wouldn’t have had an anullment of marriage either. So, maybe this poor woman was just glad to be out from under an abusive husband. I felt sorry for her being forced to return to her first husband if this was the case. I would feel equally sorry for a man being forced to return to an abusive wife. I have known personally of a case of husband abuse by a wife.

I’m not saying all men are abusive. Do not make assumptions about what I am saying. I’m glad you brought this to my attention, so I could correct your assumptions about me!

 

[trayletha]

So if DH ever just disappears it might be a good idea to try to get an annulment before marrying again, even if the missing spouse is declared dead by civil authorities? Then the second marriage would be the valid one - although what are the just reasons for an annulment? Would abandonment be just cause?

 

[Peggy_in_Burien]

So if DH ever just disappears it might be a good idea to try to get an annulment before marrying again, even if the missing spouse is declared dead by civil authorities? Then the second marriage would be the valid one - although what are the just reasons for an annulment? Would abandonment be just cause?

You can’t get an anullment without the civil divorce first. An anullment declares the marriage non-valid. I don’t think abandonment on its own is cause for an anullment. I would think having the spouse missing makes the anullment process that much harder.

 

[catherinette]

So if DH ever just disappears it might be a good idea to try to get an annulment before marrying again, even if the missing spouse is declared dead by civil authorities? Then the second marriage would be the valid one - although what are the just reasons for an annulment? Would abandonment be just cause?

I don’t know all of the details, but I’m pretty sure you can only get an annulment if the marriage can be shown to be invalid. Basically it has to be something that occurred before the marriage took place, such as one of the spouses not being free to marry. Maybe you could prove that the husband or wife intended to abandon the other person before they were married, but I think that would be pretty difficult. I don’t think even abuse or adultery is necessarily grounds for an annulment unless you can prove the spouse never intended to stay faithful to his or her vows at the time when the marriage took place.

 

[SHW]

I do not think that I could ever marry again without knowing for certain that my husband was dead. I do not think that it would be fair to place a “new” husband, and family (perhaps even additional family members born as a result of this new marriage) into this possible albeit unlikely position.

I would find another goal for my life instead of remarrying even if I personally was still young. No one is actually “entitled” to be married.

 

[wcknight]

People feel sorry for the the second - new spouse, but like the movie, the first spouse was a fairly decent person.

IF as in the movie, it was through no fault of their own, the first spouse shows up after a long absence I agree with the Church that the wife should return to the first spouse.

It’s bad enough that some poor smuck has to go through a forced separation from their spouse and family for an extended period of time (IF it is indeed not what he chose to happen). BUT it falls into cruel and unusal punishment realm if he has to come back to a spouse and family that is taken away from him.

I thought the ending to Castaway was just too heart rending. The wife should have took her kid and went back to Tom Hanks. The poor guy had to go through a living h*** for years and he gets deserted by his wife when he returns. That is just too much for anyone to endure.

The Church has the policy right as it is. JMHO

 

[SHW]

I don’t think that Tom (Chuck) was ever legally married (in the movie) before he was “Castaway.”

 

[phoage]

This is not all that hypothetical a situation other than the setting, and one need not go back to ancient or mediaeval history to find examples.

It happened several times in WWII on various Pacific islands. Men were cut off by invasion yet were able to evade capture. I would have to look for the documentation, but in one case an American marine met the American re invaders on the beach as they came ashore to take back the island from the Japanese. In another, the American sailor was actually able to provide information on the Japanese defenses to the Americans to help the invasion planning, On the second case there is an old black and white movie made, I believe called “No Man Is An Island.”

It also happened several times on the Russian Front where neither side was very good about following the Geneva Accords.

What of the poor men who had married the “widows” in good faith? What of any children of those second marriages?

Oh, I feel sorry for the poor woman, who had an abusive first husband, who thought she finally had release from him due to his death! Now she would be forced to go back to this awful situation.

I personally feel for the wife who, having reconciled herself to the loss of the husband and father of her children whom she deeply loved, went o with her life. Now, she has found a second husband whom she has developed a relationship with and is to have it torn apart also.

And the men, both of them, what of them. One has struggled to get back through enormous difficulties to the love of his life, to find that she has moved on. Does she still love him? The new husband, having married a woman, knowing he can never replace her lost love but having built a place in her life in spite of that. Is he now to be cast aside?

This is a tragedy worthy of Shakespeare, or Sophocles.