The Gazette 1978

GAZETTE

SEPTEMBER 1978,

A third situation is where one of the parties insists upon making use of contraceptives whenever intercourse takes place and this insistence on contraceptives is quite clearly and upon the person's own admission so as to avoid all possibility of allowing the wife to have children. In each of these three situations the marriage would be invalid because one of the parties refused the right "to acts which of themselves are suitable for the generation of children". What is vital in the examination of any marriage case is that the intention to exclude rights to proper conjugal acts is shown to exist at the time of the wedding, because if the intention was only formulated after the wedding has taken place then the right would not be excluded from the contract of marriage. It is only when it is so excluded would the marriage be invalid. Also, a mere intention at the time of the marriage of refusing the rights to such acts already conferred would not render the union null and void; for example, where contrary to the wife's wishes the husband makes use of contraceptives on some or even most occasions of intercourse. (ii) The Intention of Excluding The Indissolubility of Marriage: The consent given to the marriage is a consent to a permanent and indissoluble union. Although a couple may not even turn their minds to these essential properties of marriage, nonetheless it is assumed that that is their general intention. What would be required to have the marriage declared null and void would be showing that the person concerned had a specific and a clear and formulated intention to exclude the property of indissolubility from the marriage. Mere ignorance of the fact that the marriage is permanent would not be sufficient. (iii) The Intention of Excluding Fidelity from the Marriage: If either the unity or fidelity of the marriage is excluded by one of the parties then the marriage is invalid. Amongst other things, the couple are presumed to exclude as incompatible with a proper married relationship the possibility of marriage to a third party during the lifetime of the two partners, or to exclude illicit relationships with other persons. The difficulty in this type of ground is the possibility of a distinction between the right of fidelity conferred or undertaken and the abuse of that right e.g. it is possible to intend at the time of the marriage to be faithful to one partner and yet during the marriage to commit adultery. This is merely an example of the violation of an obligation and does not indicate that the obligation of fidelity has not been undertaken. (iv) Conditions: As already stated, there can be two general sorts of conditions, the one sort that affects the right to conjugal acts or the permanence or fidelity of marriage, and the other sort that has no connection with these essential properties. Where the conditions are related to the essential properties of marriage they are dealt with in the same way as intentions against those properties: e .g. in a case where someone formulated the intention, "I intend to exclude the property of permanence frommymarriage", he could also formulate thecondition "I ammarrying on the condition that I can terminate this union if the marriage breaks down". There can, however, be other kinds of conditions which are not connected with these properties. The Code of Canon Law states that three types of conditions are presumed not to have been seriously made unless the contrary is shown: (a) a future necessary condition (e.g. I will marry you if the sun rises to-morrow); (b) a future immoral condition (e.g. I will marry you if you will poison

your mother); and, (c) a condition which makes the marriage consent depend on an impossibility. Generally, therefore, the rule is that if a condition is necessary, immoral or impossible it is regarded as having no effect whatsoever upon the marriage consent without very clear proof to the contrary. If, however, a condition which is quite harmless and certainly possible of fulfilment is placed as a sine qua non to the marriage consent and the marriage consent is dependant upon the realisation of that condition prior to such consent coming into existence (e.g. a person could say that he marries on the condition that all the children should be baptised and brought up as Catholics) then if this condition is not fulfilled the marriage is null and void. It will be appreciated that if such a condition is attached to the person's consent this has the effect of suspending the marriage i.e. the marriage does not legally come about until such time as the condition has been fulfilled. It is for this reason that the Church legislates against such a condition and why a priest who is to conduct a ceremony of marriage is instructed to discover whether the parties are entering marriage without conditions. C. Consent Which is Forced In a case where "force and fear" is alleged it is still assumed that consent has been given. What has to be established is whether the force and fear was such as to remove a person's freedom in contracting a marriage. The Code of Canon Law (c. 1087) provides that a marriage is invalid on the grounds of force and fear when such force and fear was unjustly caused by an external agent, to free himself from which the person was compelled to choose the escape offered by marriage. Nowadays, it is highly unlikely that the marriage could take place in circumstances where a person is physically forced to go to the altar (e.g. at gunpoint), but there are other circumstances in which the force is not physical but rather a moral compulsion and where to all outward appearances the person concerned goes to the marriage quite freely. Such moral compulsion or force exercises upon the person concerned an influence which is spoken of as fear and is the reason why the grounds for this type of case are always stated as "force and fear". For this ground to annul the marriage the fear must be grave. Fear is considered to be "absolutely grave" if the "evil that is threatened or feared is considered by everyone as an absolutely grave harm"; for example, death or mutilation, or serious loss of good name or infamy. On the other hand, a much lesser degree of fear existing on someone else might have, to all intents and purposes, exactly the same result as absolutely grave fear. This latter is often called "relatively grave" fear. When a marriage tribunal is considering such a ground the gravity of the fear and the condition, temperament or character of the person concerned must all be carefully studied. One indication of the gravity of the fear is to see whether the person concerned took any steps, however ineffectual, to liberate himself from the moral pressure exerted. There is another form of fear, described as "reverential" fear, which exists when one fears the indignation of a parent or superior or guardian even though there may be no blows or threats. Clearly, this type of fear is fairly slight, but if in fact it amounts, for a particular person, to relatively grave fear, and, coming from an external source, is unjustly caused and leaves the person no liberty of choice but to marry, then it would invalidate the marriage. The fear must be caused by an external agent as

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