…That separation and remarriage of the separated parties may not take place merely on account of private convictions of the invalidity of a supposed marriage, but only in consequence of an ecclesiastical judgement was taught by Alexander III and Innocent III in IV Decretal., xix, 3 and II Decretal., xiii, 13. In earlier centuries the summary decision of the bishops sufficed; at present the Constitution of Benedict XIV, “Dei miseratione”, 3 November, 1741, must be followed. This prescribes that in matrimonial cases a “defender of the matrimonial tie” (defensor matrimonii) must be appointed. If the decision is for the validity of the marriage, there need be no appeal in the second instance. The parties can be satisfied with the first decision and continued in married life. If the decision is for the invalidity of the marriage, an appeal must be entered, and sometimes even a second appeal to the court of third instance, so that it is only after two concordant decisions on the invalidity of marriage in question that itcan be regarded as invalid, and the parties are allowed to proceed to another marriage. (Cf. III Conc. plen. Baltim., App. 262 sqq.; Conc. Americ. latin., II, n. 16; Laurentius, “Instit. iuris eccl.”, 2nd ed., n. 696 sqq.; Wernz, “Jusdecretal.”, IV, n. 744 sqq.) Sometimes, however, in missionary countries, Apostolic prefects are permitted to give summary decision of cases in which two concordant opinions of approved theologians or canonists pronounce the invalidity of the marriage to be beyond doubt. Moreover, in cases of evident nullity, because of a manifest impediment of blood-relationship or affinity, of previous marriage, of the absence of form, of lack of baptism on the part of one party, a second sentence of nullity is no longer demanded (Decr. of the Holy Office, 5 June, 1889, and 16 June, 1894. Cf. Acta S. Sedis, XXVII, 141; also Decr. of the Holy Office, 27 March, 1901, Acta S. Sedis, XXXIII, 765). The court of first instance in the process of nullication is the episcopal court of the diocese, of second instance the metropolitan court, of third instance the Roman See. Sometimes, however, Rome designates for the third instance a metropolitan see of the country in question (Laurentius, above, 697, not. 6). No one, however, is prohibited from immediate application in the first instance to the Holy See. Custom reserves to the Holy See matrimonial cases of reigning princes.
In the Decretals the declaration of nullity is treated under the title “De Divortiis”. But it is important that these matters should be carefully distinguished from one another. The lack of exact distinction between the expressions “declaration of invalidity” and “divorce”, and the different treatment of invalid marriages at different periods, may lead to incorrect judgements of ecclesiastical decisions. Decisions of particular Churches are too easily regarded as dissolutions of valid marriages, where in fact they were only declarations of nullity; and even papal decisions, like those of Gregory II communicated to St. Boniface
"( martyred 5 June, 755)" and of Alexander III to Bishop of Amiens, are looked on by some writers as permissions granted by the popes to Frankish Churches to dissolve a valid marriage in certain cases. The decision of Gregory II, in the year 726, was embodied in the collection of Gratian (C. xxxii, Q. vii, c. xviii), and is printed in “Mon. Germ. Hist.”, III: Epist. (Epist. Merovingici et Karolini ævi I), p. 276; the decision of Alexander III is given in the Decretals as pars decisa, i.e., a part of the papal letter (IV Decretal., xv, 2) left out in the Decretal itself. In both cases there was question of a declaration of the invalidity of a marriage which was invalid from the very beginning because of antecedent impotence. A certain concession to Frankish Churches was, however, made in these cases. Accoding to Roman custom such supposed husband and wife were not separated, but were bound to live together as brother and sister. In Frankish Churches, however, a separation was pronouced and permission to contract another marriage was allowed to the one not afflicted with absolute impotence. This custom Alexander III granted to the Frankish Churches for the future. If therefore, the union in question is spoken of a legitima conjunctio, or even as a legitimum matrimonium, this is done only on account of the external form of the marriage contract. That in such cases a diriment impediment according to the natural law was present, and an actual marriage was impossible, was well understod by the pope. He says this expressly in the part of his letter that has been embodied in the Decretals (IV Decretal., xv, 2. Cf. Sägmüller, “Die Ehe Heinrichs II” in the Tübingen “Theol. Quartalschr.”, LXXXVII, 1905, 84 sqq.). That in similar cases decision has been given sometimes for separation and sometimes against it, need excite no surprise, for even at the present day the ecclesiastical idea of impotence on the part of the woman is not fully settled (cf. controversy in “The American Eccl. Review”, XXVIII, 51 sqq.).
From the Catholic Encyelopedia 1907
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