The Gazette 1978

SEPTEMBER 1978,

GAZETTE

(e.g. a person was browbeaten into marriage, or where strong pressure or even grave fear existed); (c) that the circumstances surrounding the marriage point towards simulation as a possibility (e.g. if a man deserted his wife directly after the wedding and disappeared, or where he stated to other people after the ceremony that it had been a farce because he had not intended to marry); and, (d) that there is evidence from persons other than the parties who can support and confirm the statement and allegations made by the parties. B. Partial Simulation. Under this heading two further terms, namely "condition" and "intention", must be considered. It is possible for someone to marry with the intention of excluding from his consent some vital element which is involved in the contract of marriage (i.e. excluding one of the vital elements of permanence, fidelity, and openness to children). If one of those elements is excluded, then the marriage would be null and void. An "intention" is a firm and positive act of the will whereby one of the essential elements is excluded; it is not a mere thought about the possibility of some such exclusion but a firm and positive act of will expressed before the marriage. On the other hand, a "condition" is a clause or stipulation which proposes that the essential obligations of marriage should either be qualified or nullified under certain given circumstances; for example a person may make a condition that no consent is given to the marriage unless the couple live in the house of the bride's parents; then, unless such a condition is fulfilled, the union would be null and void. Therefore, although an intention must relate to some essential element of the marriage contract for there to be any possibility of invalidity, a condition can relate either to an essential element of the marriage or to something entirely unconnected with the marriage. In cases where an intention or a condition has been made against one of the essential properties of marriage it could be said that there is some consent present but it is not sufficient. It is in this sense that certain grounds come under the general heading of "partial simulation". However, it must be appreciated that if some essential element has been ruled out of the consent then to all intents and purposes there is not merely insufficient consent but, since the consent is one and undivided, there is no consent at all to a Christian marriage as such. A person either gives consent which is whole and entire or he does not give proper consent at all. This is why such a marriage can be declared null and void. The Code of Canon Law gives a short definition of "consent", as "the act of will by which each party gives and accepts a perpetual and exclusive right over the body for acts which of themselves are suitable for the generation of children" (Canon 1081, para. 2). This definition incorporates the three basic elements which are, a right to conjugal acts, a right which is perpetual and a right which is exclusive. The exclusion of any or all of these three elements from the marriage contract means that the consent of the party concerned is defective and the union would be null and void. (i) The Intention of Excluding The Right to Conjugal Acts: There are a number of different situations which are covered by this statement. One situation is where a man absolutely refuses his wife intercourse for some reason. Another situation is where one of the parties insists that intercourse should take place only within the "safe" period. 137

marriage. Certain of these impediments are regarded as being based on the Divine Law i.e. the law established by God, with Church laws merely restating them. Other laws concerning marriage are ones which have been made by the Church and are called ecclesiastical laws. Impediments which, when not dispensed, render a marriage null and void, are termed diriment impediments. Impediments of Divine origin cannot be dispensed, but some of the impediments of ecclesiastical origin can be dispensed. (d) Sacramentality: The marriage will be a sacrament when both parties to it are baptised, i.e. both are members of the Christian community. Equally, if both parties are baptised after the marriage has been celebrated their existing marriage thereby becomes a sacrament. Though a marriage may not be a sacrament it is nonetheless assumed to be valid and binding and the couple who are parties to a non-sacramental union are nonetheless bound to a permanent union. However, where the marriage is not a sacrament the Pope has power, which he can exercise in very special circumstances, to dissolve a non- sacramental union which has already broken down. This power of the Pope is often referred to as the "Petrine Privilege". (e) Consummation: If a sacramental and valid marriage has not been consummated it is possible to have a dispensation of it by the Pope. The local marriage tribunal acting on behalf of the Holy See acts in an administrative capacity in that type of case and assembles indications and proof that the marriage in question has not been consummated. (0 Lack of Form: As already stated Catholics are bound to the form of marriage (i.e. before a priest and two witnesses) unless there is a dispensation. Where a marriage takes place without such a dispensation whether in a Church of another denomination or in a register office it is regarded as not being a marriage conforming to the law of the Church and would be invalid. At present there is much discussion about this law and especially whether it should be retained. This is a situation in which a person, though he appears to give consent to his marriage, in fact does not give internal consent. When consent is completely withheld the marriage is null and void. The term given to this type of situation is "simulated consent" or "total simulation". For such a marriage to be proved null and void, the firm intention of not contracting the marriage, despite all external signs to the contrary, must be demonstrated by means of witnesses who knew about these facts before, during and after the wedding. The law of the Code of Canon Law is clearly that the presumption must be against such simulation and very clear proof must exist before a tribunal can rule that the marriage in question is invalid. For total simulation to be proved Church jurisprudence demands four basic requirements — (a) that there is some statement made by the person who simulated his consent (e.g. the person concerned made a statement admitting the simulation just after the wedding ceremony, and there is a witness to testify to this); (b) that there is some reasonable explanation for the simulation, 2 The Grounds for Nullity — Consent A. Total Simulation