The Gazette 1978

GAZETTE

SEPTEMBER 1978,

(k) Appeal to Court of Second Instance (1) Further Appeals and Issue of Decree of Nullity (m)Conditions attached to Decree of Nullity (n) Rejection of the Petition (o) Informal or Administrative Procedure. 6. Dispensation of a Non-Consummated Marriage (i) General (ii) Proof of Non-Consummation (iii) Procedure for Obtaining Evidence (iv) Comments on Evidence and Transmission to Rome

(v) Procedure in Rome (vi) Restrictive Clauses 7. Dissolution of The Natural Bond

(i) Power of Pope to Dissolve Non-Sacramental Marriages (ii) Requirements for Petition for Dissolution (iii) Proof of Non-Baptism (iv) Comments on Evidence and Transmission to Rome (v) Discretion of Pope whether to Grant Dissolution.

Marriage Annulment in the Catholic Church

1. General Summary (a) The Scope of Marriage Tribunal Work: There is either a marriage tribunal for each diocese or alternatively, and more commonly nowadays, tribunals arranged on a regional basis covering a number of dioceses in a geographical area. In Ireland, there are four regional marriage tribunals, one based in Dublin for the Archdiocese of Dublin and the Dioceses of Meath, Kildare and Ossory, and Ferns; and others centred in Cork, Galway and Armagh. The sphere of action for the tribunal is fairly restricted, that is restricted within the confines of what the Roman Catholic Church (herein generally referred to as "the Church") believes marriage to be — essentially a union which is indissoluble, provided it is valid, sacramental and consummated. In considering the work of a marriage tribunal, one considers two aspects, firstly, the procedure which must be adopted in the examination of the marriage, its circumstances and the parties to it and, secondly, the law which constitutes the criteria for that examination. Essentially, the law is contained in the Code of Canon Law (1918), but a vast part of the ramifications of what is briefly contained in the Code is contained in another source — namely the jurisprudence of the Church's courts, which is a product of case after case in which the law is explained and refined and developed, leading to a greater understanding of what constitutes marriage and, especially, what creates a bar to a union being a valid marriage. (b) General Principles: Part of the Church's teaching of marriage is that a valid, sacramental and consummated union is indissoluble. This means that two baptised persons who were married in accordance with the law, and whose union has been consummated are bound in an indissoluble union sanctified by God until the death of one of the partners. This applies equally to Roman Catholics (herein generally referred to as "Catholics") and non- Catholics but an additional law to which Catholics must conform is the rule that, without a general or special dispensation, those baptised in the Church must be married before a priest and two witnesses; this rule is termed the "form" of marriage. It is not correct to state that the Church does not recognise a marriage which takes place between two non-Catholics in a marriage 136

register office, because apart from the case of Catholics who are bound to the form of marriage (i.e. before a priest and two witnesses) a marriage can (canonically) take place anywhere. The Church teaches that what makes the marriage is the consent of the partners and assuming consent has been given by both the parties to a marriage the union is valid; and, assuming that the same union is also sacramental and consummated, it is indissoluble. Therefore, the three elements of an indissoluble union in Church law are (i) validity, (ii) sacramentality, and (iii) consummation. Die work of a marriage tribunal centres around the determination of these three elements. (c) Validity: The validity of a marriage depends on the consent of both parties to the marriage. This consent must be an irrevocable personal consent given by the two parties to the union involving a relationship between them which is lasting and permanent, which in no way excludes the possibility of children and which imposes the mutual obligation of total fidelity of one party to the other. Therefore, what a couple consent to when they exchange their promises in marriage are (i) the permanence of the bond, (ii) the right to children within the union, and (iii) the total fidelity imposed on the couple as a result of the other two essentials. These three points are made very clearly in the Pastoral Constitution of the Second Vatican Council, The Church in the Modern World. If any of these three essentials are lacking at the time of the marriage ceremony the marriage would not be valid since the persons concerned had not "consented to Christian marriage". Also if one of the parties at the time of the marriage ceremony was insane which prevented him from giving proper consent to a marriage, then the union for that reason would be null and void; similarly, if the marriage was entered into as a result of force exerted or fear induced on one or other of the parties. All these elements, namely, the complete lack of consent to a Christian marriage, the exclusion of the permanence of marriage, the exclusion of the right to children, the exclusion of fidelity, the inability to consent, and consent obtained as a result of great pressure, are all matters which are the subject of detailed examination in any nullity proceedings in a marriage tribunal. Also, the tribunal would have to give consideration to the question of impediments to the contracting of a