Requirement for civil marriage contract?

[tee_eff_em]

I have been inspired to start a new thread by this topic, [thread=989771]RCIA and antecedant marriage.thread] (not exactly what we have been discussing, but similar).

tee

 

[Gorgias]

You have quite thoroughly misunderstood the Church’s teachings and discipline concerning marriage.

Umm… I don’t think so; but, I’m willing to consider that I’m mistaken.

All marriage ceremonies conducted according to proper civil and/or ecclesiastical form give rise to presumptively valid marriages

Hmm… from the very first sentence, your assertion isn’t true. A marriage that has proper civil form but not proper ecclesiastical form is not a “presumptively valid marriage” – it is an invalid marriage. But, let’s look further at your claims…

But if some requirement of validity is lacking (free will, intention of all the ends of marriage, etc.) the “marriage” never takes place, it is invalid from the very start, and is only treated as valid because we don’t have all the information necessary to ascertain its invalidity. We are only led to think (putare => putative) such a marriage valid due to incomplete information, but its invalidity is an objective fact regardless of whether we ever become aware of it or not.

Let’s try a thought experiment: a couple marries – seemingly validly – but one spouse does not intend permanence. However, that spouse is hit by lightning as s/he exits the church and dies. Will the Church ever declare that marriage ‘invalid’? Of course not; it cannot – the marriage has ended. Therefore, will the spouses ever be certain that the marriage is invalid? No, they cannot. Therefore, without that certainty, the marriage can never be claimed to be invalid (remember – invalidity only occurs with the certainty of the nullity by both spouses). So, on the face of it, it seems that your assertion fails.

Putative marriages are invalid marriages that have yet to be revealed as such (the canon was already cited here for your benefit).

Not quite: as I’ve shown, there are marriages that are formally invalid, but can never reach material nullity. So, putative marriages are only those which will (eventually) be known to be certainly null by both spouses, but are ‘putative’ with respect to the time in which neither or only spouse knows them certainly to be invalid.

Once we have declared a marriage to be invalid, we no longer have grounds to reckoning it a true marriage, thus it ceases to be putative.

This is where I’m willing to be corrected. My understanding of ‘putative’ marriages is that this is a description of the understanding of the validity of a marriage at a particular time, not an understanding that is absolute and unchanging. That is, if a marriage will eventually be known certainly by both spouses as ‘null’, then it is ‘putative’ in that timeframe in which neither or only one spouse knew it to be null.

(Incidentally, this is why ‘putative’ marriages give rise to legitimate children, as attested by the canons. The marriage – objectively – might eventually be known to have been null; but, at the time of the birth of the child, that marriage is (minimally) putative, and therefore, the child is not illegitimate. Otherwise, a subsequent finding of nullity would retroactively make the child(ren) of the marriage illegitimate – which the canons reject.)

Not all invalid marriages are putative, because some do not give the appearance of a valid marriage, e.g., Catholics who marry without canonical form enjoy no presumption of validity because they obviously have not married.

Agreed – a ‘lack of form’ marriage is never putative, and always invalid. Another way of saying what you’re trying to say is that “not all invalid marriages are at some point putative.” Fair enough?

Thus … you are wrong to claim that our use of the term “presumption” implies no uncertainty about the validity of a marriage.

No, and that’s not what I’m attempting to assert: what the use of ‘presumption’ implies is only that we cannot claim a marriage to be ‘invalid’ or even ‘putative’ while the spouses are still married (civilly).

Since validity depends, again, on hidden variables ultimately unknowable to mortal men

Not true. If this were the case, then no marriage could ever be declared ‘null’.

On balance, I’m not convinced by your arguments. Perhaps we might try to work on a common understanding of the term ‘putative marriage’?

 

[Vico]

The way you put it – that “there is never absolute certainty” of the validity of any marriage – you seem to be saying that all (seemingly valid) marriages are putative. That is incorrect. The only marriages that are ‘putative’ are ones that have already been proven invalid. Therefore, saying that marriages are ‘presumed’ valid doesn’t mean “we’re not certain they’re valid”, but rather “we’re calling these marriages ‘valid’”, period!

It would not be putative if it was in reality valid. I am saying one never knows with absolutly certainty what it really is. Rather than “already been proven invalid”, the canon states that it is putative from the time of celebration until both are certain of its nullity. Reference: “An invalid marriage is called putative if at least one party celebrated it in good faith, until both parties become certain of its nullity.”

They would be certain of its nullity, per the Church, upon a finding. Yet, annulments have also been overturned.

Catholic Encyclopedia has:

Putative (Latin, putativus supposed) signifies that which is commonly thought, reputed, or believed. A putative marriage, consequently, in canon law is a matrimonial alliance which is commonly reputed to be valid, and is sincerely believed by one at least of the contracting parties to be so in the eyes of the Church, because entered into in good faith; but which in reality is null and void, owing to the existence of a diriment impediment. The Church too in her external forum recognizes such a marriage, until its invalidity be proved; and concedes to the children born thereof the rights of legitimacy.

 

[Gorgias]

It would not be putative if it was in reality valid.

No – it is not called ‘putative’ until it is known to be null; that is, it is not called ‘putative’ until *after *it is known to have been invalid from the beginning. Once it is known, with certainty, to be invalid, then the period of time in which it was thought to be valid by both spouses (in the case of defect of form, for example) or by one spouse (in the case of defect of consent, for example) the marriage is referred to as ‘putative’. If a marriage is never found to be invalid, then it was never ‘putative’ at any time throughout the marriage. The standard is not “objectively valid”, it is “known with certainty to be null”. If it doesn’t rise to the standard of the latter, it can never be called ‘putative’.

I am saying one never knows with absolutly certainty what it really is.

And in that, you are mistaken. If “one never knows”, then it would be impossible to declare a marriage null.

Rather than “already been proven invalid”, the canon states that it is putative from the time of celebration until both are certain of its nullity.

Not for all marriages, however – only for marriages which (eventually) are known to be null.

Reference: “An invalid marriage is called putative if at least one party celebrated it in good faith, until both parties become certain of its nullity.”

Thank you for proving my point. It is only invalid marriages (that is, marriages known to be null by both spouses) that can be referred to as having been ‘putative’ for some period of time – not all marriages (and certainly, not any marriages “presumed to be valid”) can be called ‘putative’. Thanks for helping clarify your misunderstanding.

 

[Vico]

No – it is not called ‘putative’ until it is known to be null; that is, it is not called ‘putative’ until *after *it is known to have been invalid from the beginning. Once it is known, with certainty, to be invalid, then the period of time in which it was thought to be valid by both spouses (in the case of defect of form, for example) or by one spouse (in the case of defect of consent, for example) the marriage is referred to as ‘putative’. If a marriage is never found to be invalid, then it was never ‘putative’ at any time throughout the marriage. The standard is not “objectively valid”, it is “known with certainty to be null”. If it doesn’t rise to the standard of the latter, it can never be called ‘putative’.

And in that, you are mistaken. If “one never knows”, then it would be impossible to declare a marriage null.

Not for all marriages, however – only for marriages which (eventually) are known to be null.

Thank you for proving my point. It is only invalid marriages (that is, marriages known to be null by both spouses) that can be referred to as having been ‘putative’ for some period of time – not all marriages (and certainly, not any marriages “presumed to be valid”) can be called ‘putative’. Thanks for helping clarify your misunderstanding.

You are speaking of when it is called something, not the reality. The canon says that a marriage may be putative beginning from its celebration. Similarly there is a legal fiction of a retroactive convalidation which is valid from the celebration, but in reality is from the grant.

Marriages that are annulled are sometimes reversed. This shows that it is a best effort to determine the validity not an absolute certainty. It does not require absolute certainty to consider a marriage valid or invalid.

 

[pragmatist91]

Rau, I will address your response point by point. Yes, I am more comfortable with the sola scripture approach. In previous centuries, the Church abused its power. That’s the main reason there was a Protestant Reformation to begin with. I will again repeat my previous point. Before the time of Jesus Christ, Church and state were often one entity. In most of those early civilizations people did not have to worry about losing everything in the event of a separation. That’s why such a setup was reasonable in ancient times. Family law opens the door to sinful behavior because one spouse (typically the woman) can betray her husband (cheat on him, murder his unborn child, etc) and then take at least 1/2 his stuff (even if she was working sporadically). Under current family law, there is very little accountability. In my opinion, the local police department should enforce the physical separation and the local courts should divide property based on who was earning income. So if a woman was a stay at home mom and the man was earning 100% of the income, he would keep everything and she would not get any of the property. I completely oppose trans-spousal child support and alimony. If a woman can’t support herself or her child, then child support and spousal support should come directly from the government coffers. Child custody should be awarded to the parent who can best afford to support the child, as long as there is no concrete evidence of abuse (he said, she said should not count). There is no doubt that such policy shifts would mandate a significant expansion of the welfare state. But in the US, we already have a tiny welfare system as is and such changes are long overdue. At this point, all 3 routes you listed are on the table. The route I select would really depend on the situation and the type of girl I was with.

Gorgias, the problem with the authoritative approach is that the Church has abused its power in the past. We lost untold numbers of people with the sale of indulgences, various wars waged by the medieval papal state, lavish clergy lifestyles, sex scandals, etc. Plenty of militant atheists say that the Catholic religion is just a deception used to keep marginalized people in their place and prevent leftist economic reforms. The fact that the Church continues to stand by all these impractical teachings is not helping the situation. There are plenty of people who were harmed by the family courts. There are plenty of people who were harmed by other Church policies. The discussion to reform the Church needs to start now, not when US Catholics make up 3% of the US population. Nowadays, more and more men are rejecting marriage entirely because THEY are the ones at the mercy of the family court system if the marriage goes down. This problem is not limited to the Catholic population, but for most of the West. Regarding the validity of marriage, you guys are missing my point. The point I’m making is that most Catholics will get a divorce if the other spouse pushes their buttons enough, even if it’s for a reason not authorized by Canon law.

Lou, yes the possibility of a divorce is a strong deterrent for many young men of all walks of life (not just Catholic). In the West, it is one reason (not the only reason) why marriage and birth rates are declining. This is a serious problem that will continue to get worse until both the Church and state get the message and realize that they have to make marriage an attractive deal to men. If the Catholic Church relies on religious teachings alone to drive marriage rates, then the problem will continue to get worse. The Church is not the state, so obviously the Pope can’t change any civil laws. However, the Church could make the situation better by saying: “Listen everyone, we know that the family law system in many countries is dysfunctional and a lot of you have been hurt by it. We can’t change the civil laws. But we will allow you to get married in the Church without a contract if you so desire and there will be no hard feelings.” For me to even consider marrying a girl, civilly or not, she would have to meet some really high standards. If I found a girl who met those standards but wanted to get married civilly, I would employ a lot of other tactics to protect myself. I would require a property division prenup (yes even if it “invalidates” the marriage), keep separate finances, maintain an active 2nd passport, make sure that she intends to work full time AND earn at least as much as me, and keep a certain amount of money saved on the side if things ever started going down.

Otjm, like I was tellin Lou, there are plenty of other cards I would have ready up my sleeve if things ever went south. More and more men are turning to cohabitation as an alternative to marriage. It is very possible that the laws on the books will change to reflect this trend. Hence, even avoiding the civil contract may not be enough. But I would be prepared, no questions asked. Also, the Church IS telling people that they have to be willing to destroy themselves if it gives people such insensible marching orders. We are essentially using different words to describe the same basic thing from our different points of view.

 

[SMHW]

In my opinion, the local police department should enforce the physical separation and the local courts should divide property based on who was earning income. So if a woman was a stay at home mom and the man was earning 100% of the income, he would keep everything and she would not get any of the property. I completely oppose trans-spousal child support and alimony. If a woman can’t support herself or her child, then child support and spousal support should come directly from the government coffers. Child custody should be awarded to the parent who can best afford to support the child, as long as there is no concrete evidence of abuse (he said, she said should not count). There is no doubt that such policy shifts would mandate a significant expansion of the welfare state. But in the US, we already have a tiny welfare system as is and such changes are long overdue.

I think this excerpt from your post kind of sums up your opposition to current marriage law.

Unfortunately for you, one of the reasons the Church supports civil rules for marriage is to prevent what you propose.

 

[Rau]

…Family law opens the door to sinful behavior because one spouse (typically the woman) can betray her husband (cheat on him, murder his unborn child, etc) and then take at least 1/2 his stuff (even if she was working sporadically). Under current family law, there is very little accountability.

I am at a loss for words!

In my opinion, the local police department should enforce the physical separation and the local courts should divide property based on who was earning income. So if a woman was a stay at home mom and the man was earning 100% of the income, he would keep everything and she would not get any of the property.

Absent family law of one kind or another - none of this would be possible! You want the law - you just want to work more in your favour! I note the law you prefer is one in which any “stay at home” parent might feel very vulnerable about their choice to put a career on-hold.

I completely oppose trans-spousal child support and alimony.

So what you are saying here is that the child will be punished (less financial support) for the failures of the parents?

If a woman can’t support herself or her child, then child support and spousal support should come directly from the government coffers. Child custody should be awarded to the parent who can best afford to support the child, as long as there is no concrete evidence of abuse (he said, she said should not count).

One wonders how you conclude that one parent should be relieved of all responsibility for the child. That parent may in fact be an adulterous, wealthy father - he gets to take the assets (because the mother put career on hold to devote her time to child-raising and homemaking) and have no responsibility for the child because the court has (correctly) judged the mother the better choice for on-going parenting. Why the father, under your preferred model of the law, would be relieved of all financial responsibility for his child - and the rest of the community should pay instead - is beyond me…

 

[Rau]

…Let’s try a thought experiment: a couple marries – seemingly validly – but one spouse does not intend permanence. However, that spouse is hit by lightning as s/he exits the church and dies. Will the Church ever declare that marriage ‘invalid’? Of course not; it cannot – the marriage has ended. Therefore, will the spouses ever be certain that the marriage is invalid? No, they cannot. Therefore, without that certainty, the marriage can never be claimed to be invalid (remember – invalidity only occurs with the certainty of the nullity by both spouses). So, on the face of it, it seems that your assertion fails.

The basis upon which a statement about validity can (permissibly) be made, and the realities of events, should not be confused. There are objective facts which - properly recognised - render a marriage invalid. The panel does not make the marriage null - they declare that it is so and has been so since its beginning, on account of the objective facts.

However - the Canon Law provides that no one may act on a belief or assumption of invalidity until it is so declared. There are evident practical reasons for that.

If invalidity is determined based on the facts, then it should also be recognised that there can be no *certainty *of reaching a correct conclusion in any declaration, or a decision not to declare nullity. There is no infallibility in the work of the panel. Thus, they will on occasion get it wrong - and while the participants may be bound by that finding, and be required to act accordingly, the facts are unchanged.

Ultimately, this debate on validity is somewhat semantic.

 

[pragmatist91]

SMHW, there is more than one way to crack a walnut. The Church’s requirement for a civil contract is not something that can’t be out-maneuvered.

Rau, why are you at a loss of words? Under the no fault divorce system, a woman can do exactly as I described. There is nothing stopping her from exercising her “right” to have an abortion and then suing the guy for everything he has. I don’t want the law to work in my favor. I want the law to work in favor of the person doing the most financially for a marriage. Who is to say that the law would necessarily be in my favor. In the future, I might be the one who gets laid off and my wife would be the one working until I can get back on my feet. There are cases where women got royally screwed by the family courts because they were making the lions share of the money and the guy was making peanuts or nothing at all. With more women graduating from college than men in the US and a low birth rate, this will become more common. The child will be punished for the actions of the parents regardless of what the law is. I can attest to this first hand as a child of divorce. The question will be how much money will the parents waste on attorney fees if one or both of them drag the case out. If the laws are changed to greatly to reduce/eliminate litigation in court, the parents can focus more on parenting and less on burying each other in mud. Life would have been much easier for me had my mother not been able to use the legal system to financially destroy my father. I did not say one parent should be relieved of all the responsibility. I said that custody should be assigned according to income. In the event one spouse would have most of the money, that spouse would have most of the custody. Each parent would be responsible for supporting the child with their own money while the child is under their care.

Lets use your example of an alleged adulterous father. First, what do you propose as the burden of proof for adultery? A spouse who is desperate to have an edge in the legal battle can always make up a false allegation. Second, men have been financially ruined by adulterous wives before, so why should the state be concerned with male adultery so much? Under my system, unless the wealthy father is a DOCUMENTED drug user or DOCUMENTED violent/unstable person, then the father would be awarded most of the custody. These court ordered psychologists used in the custody process are just another financial drain. Just so you realize, if a father really doesn’t want to take care of his kids, he can always run off to another country that doesn’t have extradition treaties with the US. It’s been done before.

 

[Rau]

…There is nothing stopping her from exercising her “right” to have an abortion and then suing the guy for everything he has.

Abortion is irrelevant to your argument. It is an independent legal fact. Anyone can seek to sue anyone for any amount - their success depends on the facts.

I don’t want the law to work in my favor. I want the law to work in favor of the person doing the most financially for a marriage.

For so long as it is women who get pregnant, give birth, raise the children, and do the lion-share of child rearing and homemaking - then it follows you want the law to work in favour of the man.

The child will be punished for the actions of the parents regardless of what the law is.

Yes, and you seek to make it worse! The facts are that wealth/income is not the primary factor in assigning custody - it is - and should be - what is in the best interests of the child. The non-custodial parent must accept a responsibility toward the child, independent of custody. A child is not a possession - like a car - where the user must accept paying for petrol!

The question will be how much money will the parents waste on attorney fees if one or both of them drag the case out.

This I suspect is true broadly of the US legal system, renown for being highly litigious. Other jurisdictions adopt a particular design of Family Court proceedings that rely to a minimum on litigation, lawyers and formality, and thus are more cost-effective.

I said that custody should be assigned according to income.

There is no reason to believe that would be good plan, since it is not oriented to the best outcome for the child, but rather ignores that and enforces a ping ponging of the child from location to location purely on the basis of parental incomes. Better to put the child’s welfare first in deciding the structure of custody, and then deal with the just financial outcomes. Who the child lives with would seem to have nothing to do with who pays to feed the child, pay the schools fees, clothes, or medical expenses. And your custody-based model fails anyway when the custody is with a parent of limited financial capacity (for any reason). The idea that the other parent should pay nothing, and instead their responsibility (which they are assumed able to meet) should be picked up by the community - is outrageous.