NULLITY of MARRIAGE

New Edition--Revised and Enlarged


F. J. Sheed


SHEED AND WARD--NEW YORK


Copyright SHEED & WARD, INC., 1959


LIBRARY OF CONGRESS CATALOG CARD NUMBER 59-10656



NIHIL OBSTAT: JOHN R. READY
CENSOR LIBRORUM
MAY 22,1959

IMPRIMATUR: +ROBERT F. JOYCE
BISHOP OF BURLINGTON
MAY 28,1959


                    TO THE LAW SCHOOL
               OF THE UNIVERSITY OF SYDNEY
                    THIS SMALL TOKEN
                   OF GREAT GRATITUDE



Preface to the Second Edition

This is not a book on marriage; but only on those cases where
marriage appears to be but is not. It is directly concerned with
the law of the Catholic Church, but in the first edition I
introduced comparisons with the law of England. I have been
asked to introduce comparisons with American Law as well,
because its historic connection with Church Law is considerably
less than England's. As each of the fifty States has its own
marriage law, and it would have been impossible to study them
all, I chose that of New York. New York's Marriage Law was not
taught in the Sydney University Law School in my day, as any
American who chances on this book will guess. But its rules,
like those of England, are stated here only in their general
form, exceptions or modifications not being mentioned where they
would not affect the principle. The subject of the book is
Church Law. The object of the comparison is not to make civil
law and Church law look as much alike as possible, in the hope
that the great mass of similarity may lead to an indulgent
overlooking of the points on which the Church differs; but to
show her laws more clearly by noting how two other codes treat
the same problems. The book's purpose is to show the Church's
law of Nullity as it is--a strong and clearly-defined system,
wonderfully reasoned and consistent with itself. I do not wish
to defend it or prove its rightness, but only to state it; and
this not so much for its own sake as for the light it sheds on
the nature of marriage.

The value of the similarities to be found in the English law 
of Nullity lies in the differences which four hundred years of 
separation have produced in other parts of the marriage law. 
Where two authorities so different in outlook and method apply 
the same law to a given subject as England and Rome do to 
Nullity, it seems probable that the law arises from something 
in the very nature of the subject; and the probability is 
increased by the lesser but still great similarities to be 
found in the Nullity law of New York. Where Church law differs 
from either code of civil law, the non-Catholic will not, I 
trust, assume that the Church is necessarily wrong; unless, 
indeed, he holds that the civil law is perfect--a highly 
mystical view which I have not heard advanced by any 
lawyer in New York or England.

I should like to express my gratitude to Professor Calamari, 
of the Fordham University Law School, who read the book in 
manuscript and made many valuable suggestions on New York Law. 
I must also thank Mr. Richard O'Sullivan Q.C., who made most 
valuable comments on what I had to say of English Law. 
Needless to say this is not a text-book on Canon Law--the body 
of laws and regulations the Church issues for the government 
of her members. The Catholic who has a marriage problem should 
ask a priest to put him in touch with the Matrimonial Court of 
the Diocese. If he does not know a priest, a letter to the 
Bishop will be passed on to an official of the Matrimonial 
Court.



CONTENTS


I. DEFINITIONS
     A. The Nature of Marriage
     B. The Difference between Divorce and Nullity
     C. Nullity of Contract in General

II. THE AUTHORITY OF CHURCH AND STATE

III. GROUNDS OF NULLITY

IV. WHAT WAS AGREED TO WAS NOT MARRIAGE
          (i)     Exclusion of Permanence
          (ii)    Exclusion of Children
          (iii)   Exclusion of the Sacrament

V. THE PARTIES WERE NOT FREE TO MARRY
     A. Where One or Other of the Parties Is Not Free
        to Marry Anyone
          (i)     Spouse Living
          (ii)    Age
          (iii)   Holy Orders
          (iv)    Solemn Religious Vows
          (v)     Impotence

     B. Where the Parties Were Not Free to Marry Each Other
          (i)     Blood Relationship
          (ii)    Affinity
          (iii)   Public Decency
          (iv)    Spiritual Relationship
          (v)     Difference of Cult
          (vi)    Crimen
          (vii)   Abduction

VI. THE PARTIES DID NOT CONSENT
     A. Want of Consent from Want of Knowledge
          (i)     Insanity
          (ii)    Ignorance of What Marriage I
          (iii)   Ignorance of What the Ceremony Was
          (iv)    Error as to the Person

     B. Want of Consent from Causes Affecting the Will
          (i)     Force and Fear
          (ii)    Condition
          (iii)   Simulated Consent

VII. FORM
     A. Form Required by the Church
          (i)     The Priest as Witness
          (ii)    Marriage without a Priest
     B. Mixed Marriages
     C. Form Required by the Civil Authority

VIII. EFFECTS OF A DECREE OF NULLITY
     A. On the Parties
     B. On the Legitimacy of the Offspring

XI. DISSOLUTION OF MARRIAGE
     A. Non-Consummated Marriage
     B. Non-Sacramental Marriage
          (i)     The Pauline Privilege
          (ii)    The Good of Souls
          (iii)   Polygamous Marriages

Appendix A: The Marlborough Case

Appendix B: Figures of Rota Cases

Further Reading

Index of Cases



I. DEFINITIONS


A. THE NATURE OF MARRIAGE

VERY few single phrases can have wrought so much mischief as 
the phrase "Marriage is a contract". The man in the street 
repeats it, without full understanding, knowing nothing of all 
that goes with it in the mind of the expert; he has never 
heard of a contract (nor, indeed, is there one) that cannot be 
brought to an end by the consent of both parties; he therefore 
argues that marriage, too, since it is a contract, must be 
terminable in the same way.

If he puts his argument to a lawyer, he gets an answer. The 
law of England says that marriage is a contract resulting in a 
status;[1] status does not depend upon the will of the citizen, 
but upon the will of the State. One cannot, without the 
State's consent, choose a status; one cannot, without the 
State's consent, vary it. This, from the point of view of 
English law, disposes of the first argument that marriage, 
because it is a contract, should be terminable by the consent 
of the parties; but it still leaves it terminable, since 
status can be varied by the State. In New York the wording is 
different but the effect is the same: as well as the man and 
woman, the State too is a party and acquires a vested interest 
when the married status comes into being.

The Catholic Church gives an answer differing only in one 
word: marriage is a contract resulting not in a status only 
but in a relationship. A man and a woman are free either to 
make or not to make the agreement to marry. But if they make 
it, then God attaches certain consequences to their act. To 
this particular free choice of a man and a woman God has 
attached the consequence that a real relationship comes into 
being.

They have stated their will to be husband and wife: God makes 
them so. This is the sense, and the only sense, of the phrase 
"marriages are made in heaven"; it does not mean, as those who 
quote it bitterly or jestingly seem to think, that matches are 
made in heaven, that God thrusts that man and that woman into 
each other's arms. The man and the woman make the agreement to 
marry: God makes the marriage. They are husband and wife by 
their own consent but by His act.

They are now related to each other--as father to son, or 
brother to sister, but more closely than either of these--in a 
relationship directly made by God. "They are no longer two, 
but one flesh," says Christ Our Lord (Matthew xix.6). Because 
their oneness is a God-made thing, man cannot alter it: "What 
God therefore has joined together," Our Lord continues, "let 
not man put asunder."

God alone can bring a marriage into being; God alone lays down 
the conditions in which it can cease to be. Once a 
relationship is in being, the parties cannot alter these 
conditions; nor can the State; nor can the Church. By God's 
ordinance, marriage is the lifelong union of a man and a woman 
for the propagation of the species. Thus, marriage is not 
terminable, as a contract would be terminable, by the consent 
of the parties; it is not terminable, as a mere status would 
be terminable, by the will of the State.

From this it follows that, while the parties can separate, 
with the husband going to other women, the wife to other men, 
they are still husband and wife because it was God who made 
them so; their ignoring of the oneness leaves the oneness 
untouched: it is beyond their reach, beyond any reach but 
God's. Similarly a declaration by the State that a husband and 
wife are no longer husband and wife--a declaration, that is, 
of divorce--is a mere form of words. The State can say that it 
has broken the marriage-bond between two people; but it has 
not broken it. During the lifetime of the parties they remain 
husband and wife; because that is of the nature of marriage as 
ordained by God.

The failure to understand this teaching of the Catholic Church 
has given rise to much quite irrelevant argument. Those who 
urge that the Church should grant, or, at any rate, permit, 
divorce always do so on the ground that in certain cases it is 
desirable. But to urge that a thing is desirable is no answer 
to a statement that it is impossible. And that is the precise 
truth.

Marriage, then, is a contract resulting in a relationship; 
better still, it is a relationship resulting from a contract.

For when the relationship comes into being the contract has 
done its work; it has produced the relationship of marriage, 
and the parties are now governed in their common life, not by 
the contract (which they made), but by the relationship (which 
God made in ratification of their contract).

The principle that, once married, the parties are bound no 
longer by their agreement but by the nature of marriage, 
belongs to civil law too. The very word "relation" is used--in 
a lesser sense than in Catholic doctrine but sometimes coming 
very close. In a Rhode Island case[2] we find: "Though formed by 
contract, marriage signifies the relation of husband and 
wife.... When formed this relation is no more a contract than 
'fatherhood' or 'sonship' is a contract."

For civil law the relation is not made by God; it is status 
rather than kinship; but there is the same sense that 
something has been brought into being that was beyond the 
power of the parties themselves to produce.

As a practical matter resulting from its being Godmade, 
marriage is not indissoluble just because the parties at their 
wedding made vows of lifelong fidelity. It is indissoluble 
because it is marriage.

The vows are of use as indicating the intention of the parties 
to marry; but if this intention to marry is shown in some 
other way without mention of indissolubility, the marriage is 
still indissoluble; for that is the kind of relation marriage 
is. There are those who would evade the difficulty by allowing 
people who do not wish (or feel strong enough for) a permanent 
union--and who therefore wish to contract a union either for a 
certain period or terminable if they find that they do not 
like it--to marry in a registrar's office without vows or 
promises of lifelong fidelity. This would certainly ensure 
that any subsequent dissolution of partnership would not be a 
breach of faith; but only by making the partnership not a 
marriage at all--because the intention of impermanence 
contradicts the very nature of marriage. God has taught that 
the sort of partnership proposed--of a man and a woman living 
together not married to each other--is sinful.


B. THE DIFFERENCE BETWEEN DIVORCE AND NULLITY

To repeat, marriage is a relationship (God-made) resulting 
from a contract (man-made). These two terms, relationship and 
contract, both of them essential to any understanding of 
marriage, are the subject of two bodies of law: the law of 
divorce concerns the relationship; the law of nullity concerns 
the contract.

The difference between divorce and nullity is therefore about 
as wide as it is possible to conceive. Divorce claims to break 
up a marriage actually in being. Nullity means that the 
marriage never came into being; it is the discovery that the 
contract to marry did not exist. Marriage is not only a 
contract; but it results from a contract, and if there is no 
contract no relationship can result.

In any civilized society that treats of marriage at all, there 
may or may not be a law of divorce; but in every civilized 
society that treats of marriage there is a law of nullity--a 
law governing the conditions under which the marriage contract 
is valid. And a moment's thought will show that this must be 
so, unless either by some odd chance marriage is the one sort 
of contract about whose validity no subsequent question could 
ever possibly arise; or else marriage itself is so strange a 
relationship that any sort of contract--good, bad or 
indifferent--or even the appearance of a contract, will 
suffice to bring it into being.


C. NULLITY OF CONTRACT IN GENERAL

Every contract has certain things essential to it simply as a 
contract: many contracts have in addition a number of 
incidentals, not belonging to contract as such, but attached 
to this or that particular contract by the authority having 
jurisdiction in its sphere.

The essentials concern the parties and the thing they agree to 
do:

     the parties must be free to make the agreement;
     the parties must freely make it;
     the thing they agree to do must be lawful in itself.

The incidentals may roughly be lumped together as the form or 
ceremony. In all the more important contracts the authority 
having jurisdiction insists on some special form.

The absence of an incidental may not be fatal to the contract, 
but it will be if the law insists upon its presence; thus, an 
agreement for the sale of land will not in general be enforced 
by the law of England unless it is in writing and signed; a 
marriage in England is in general not legally valid if it is 
not celebrated before an Anglican minister or a registrar.

The absence of an essential must be fatal. If a contract is 
declared null by any court on the ground that one of the 
essentials was lacking, there is no point in urging that all 
the incidentals were in order.

In this preliminary discussion it may seem slightly pedantic 
to point out that an agreement to do one thing does not make a 
contract to do something different. For example, a court will 
not consider an agreement to lease a house as a contract to 
buy it; nor will an agreement of two people to take each other 
as husband and wife for anything less than their lifetime 
constitute an agreement to marry--marriage being the union of 
one man and one woman for life to the exclusion of all others. 
This is not only the Catholic view. It is a standard 
definition of English Law. It is stated in a New York case, 
Campbell v. Crampton,[3] which says that marriage is: "the civil 
status of one man and one woman, united in law for life, under 
the obligation to discharge to each other and to the community 
those duties which the community, by its laws, imposes". The 
italicized phrase strikes Catholic ears as faintly 
totalitarian.



ENDNOTES

1. Note Apted v. Apted, [1930] P. at p. 260.

2. Ditson v. Ditson, 4 R.I. 87, 101.

3. 8 Abb NC 363, 2F 417.



II. THE AUTHORITY OF CHURCH AND STATE

I HAVE said that in all civilized societies there must be a 
law of nullity of marriage, a law by which one may know 
whether the contract has been entered into or not. A man 
either is married or he is not: and the civil courts, like the 
ecclesiastical courts of the Catholic Church, have from time 
to time to go into the question. There has, of course, to be 
some appearance of marriage or the question could not arise at 
all. When it does arise, the general principles upon which the 
two courts--civil and ecclesiastical-act are very similar. For 
both courts, the one question is: "Are the parties married to 
each other? "--that is: "Was there a valid contract? "

Both the State and the Church are concerned with marriage, and 
both legislate for it. Neither regards it as a mere private 
arrangement which concerns no one but the parties to it. For, 
in its very inception, marriage means the addition to society 
of a new unit, a family; and it adds citizens both to the 
earthly kingdom and to the Kingdom of God.

Yet neither the State nor the Church is the source from which 
marriage draws its being or its validity; neither is entitled 
so to legislate as to alter the nature of marriage. God 
instituted marriage, and the laws governing its coming into 
being are His. The State may embody God's laws in its 
statutes. Further, provided the nature of marriage is not 
violated, the State may make incidental laws to ensure its own 
objects of peace and orderly government and the general well-
being; and such laws are binding. Any laws it may make which 
violate the nature of marriage--as, for instance, by assuming 
that it is terminable in the lifetime of the parties are 
simply of no effect.

So much for the State's power of legislation. Here we come to 
a vital distinction between the baptized and the unbaptized. 
The marriage of the unbaptized is a true relationship which 
cannot be terminated by any civil or ecclesiastical law; but 
that of the baptized is, in addition, a sacrament, and this 
not exceptionally but universally. (The marriage of the 
unbaptized becomes a sacrament once both are baptized.) The 
sacrament is not conferred by the priest: the man and the 
woman are the ministers of the sacrament, conferring it upon 
each other--this is the one sacrament which priests neither 
receive nor administer. Two baptized people cannot have the 
natural relationship only, and exclude the sacrament: for them 
the two things are inseparable.[1] If two baptized Protestants 
marry in church or before the registrar, they receive the 
sacrament though they may never have heard that marriage is a 
sacrament. Therefore, since the marriage of the baptized is 
always a sacrament, it is directly subject to the legislation 
of the Church: for obviously the question "Are A and B (both 
of them baptized) married?" is really a question: "Did A and B 
receive the sacrament of matrimony?"; and to that question 
only the Church can give an answer--the State is not concerned 
with sacraments. But in becoming a sacrament marriage does not 
cease to be marriage, and ecclesiastical law can no more 
violate its nature than can the laws made by the State.

To summarize, the authority of the Church and State to 
legislate on marriage is as follows:

(a) Concerning the unbaptized, as I have shown, the State may 
validly make laws, provided these do not violate the nature of 
marriage; and if the unbaptized do not observe these State 
laws their union is null.

(b) Concerning the baptized, the State may validly make laws, 
provided these do not violate either the nature of marriage or 
such laws as the Church has laid down in this her own sphere.

(c) Concerning the baptized the Church legislates: but her 
legislation must not contradict what belongs to the nature of 
marriage, or what belongs to the nature of sacrament. On both 
points her rules are rather by way of declaring the truth than 
of directly legislating. Provided both are safe, she may 
directly legislate for all baptized (Catholic or not).

This distinction is to be found in all the Church's teaching 
on moral questions. The laws made by God for the government of 
man's soul are not within the Church's power (any more than 
the laws made by God for the government of man's body). She 
can declare them with infallible authority, but she does not 
make them; they are not hers; she has no power over them, and 
she cannot alter them, or even suspend them. Within the 
framework, however, of the law of God, the Church has been 
given by God the power[2] to make what may be regarded as by-
laws, and these are binding upon all her subjects.

Concerning the laws of this second sort, two further points 
may be noted here:

(1) They are her own laws: and therefore (since the laws of 
any legislature are subject to the authority which makes them) 
are under her control: she may alter them as seems good to 
her: for good reason she can dispense individuals from their 
observance.

(2) They bind all the baptized, including non-Catholics, 
unless these are especially excluded. As an example, consider 
what has happened about the impediment of disparity of cult--
the somewhat dimly-lit term invented by Canon lawyers for the 
difference between those who are baptized and those who are 
not. A marriage between a baptized Catholic and an unbaptized 
person is null, unless the Church has granted a dispensation. 
Before the new Code of Canon Law was issued in 1918, the 
impediment applied to all the baptized, non-Catholics as well; 
but under the New Code these last are excluded from its 
effects. In practice, the Church requires for the valid 
marriage of the non-Catholic baptized only that they shall 
follow the law of their State, and this in all that is not 
contrary to marriage. If both non-Catholics are baptized, 
their marriage is a sacrament.

Where two authorities claim to act in the same sphere, there 
is a strong suspicion (usually justified) that one of them is 
trespassing. Historically, it is clear that in England the 
State is the trespasser. For prior to the Reformation, 
marriage was a matter within the Church's sphere. The State 
has simply taken it over. But, in any event, the common notion 
that in obeying the marriage-law of his Church the Catholic is 
disobeying the law of his country is quite mistaken. The truth 
is that while both authorities make statements about marriage, 
the two sets of statements are not so obviously contradictory 
as one might suppose.

Civil law says, in effect, that a particular union of two 
people--for example, when one of them is divorced and has a 
partner living--is not contrary to peace and orderly 
government and the well-being of society, and fulfils the 
State's definition of a marriage. The Church says that the 
same union is harmful to the soul, being contrary to the law 
of God. Neither is really contradicting the other. Civil law 
knows nothing of souls, and does not claim any authority to 
declare the law of God. The State's declaration that a 
particular union is a marriage in its eyes, is not 
contradicted by the Church's statement that it is not a 
marriage in God's. Individual Catholics give respectful 
attention to their country's view that peace and orderly 
government do not suffer from such "marriages"; but knowing, 
from the Church, that the eternal welfare of souls suffers 
from them, they do not contract them. To tell a Catholic that 
the law allows them is simply irrelevant, since the Church 
says they will harm his soul--and the only reassurance civil 
law can give him on the point is that it knows nothing about 
that, either way. It is as though a doctor, prescribing for a 
patient, warned him to avoid roast beef, and the patient 
retorted that the law allows it.

The Catholic therefore is in no sense a disobedient citizen 
for believing the Church--on a point where the law does not 
contradict it. The truth is that Church and State are actually 
talking about two different things. The Church is talking of 
marriage--a relation instituted by God and depending on His 
laws. The State is talking (in effect) of another institution-
-called, somewhat confusingly, by the same name--owing its 
validity and its nature not to God but to the will of the 
State. In England and America, as it happens, the rules 
governing the State's institution are in many points similar 
to the rules governing God's: so much so that:

(a) those who contract the God-given relationship usually 
satisfy the conditions the State lays down for its own 
institution;

(b) those who enter into the institution recognized by the 
State usually--though not always fulfil the conditions laid 
down by God for His.

In other words the State does not as yet forbid Christians to 
do what the law of God requires: or force them to do what the 
law of God forbids.

How long this will continue, no one knows. There are more and 
more marriages recognized by English and American law which 
are not marriages in the eyes of God. For the moment, the 
Church deplores this but need do no more. But if any State 
legislation tried to force upon Catholics practices repugnant 
to God's law of marriage (for example, forcing artificial 
insemination upon the sterile) or to forbid Catholics things 
demanded by God's law (for example, insisting upon 
contraception after a given number of children), the Church 
would be obliged to resist.

The object of this book is simply to set out what the Church's 
marriage-law is--not to defend it or urge its excellence. But 
it seems worth while to suggest two considerations bearing on 
this question of marriage as an institution controlled by the 
State.

The first is this: if marriage is only a relation drawing its 
validity from and controlled by the State, then it really 
ceases to be an institution. It becomes something fluctuating 
and uncertain, varying in meaning and value with the nation's 
spiritual condition, very much as the French franc varies in 
meaning and value with the nation's financial credit. Indeed 
the franc suggests a further comparison, for it fluctuates not 
only with the nation's credit, but with the Government's; and 
marriage equally could vary in value not only with some change 
in the nation's spiritual condition but with a change of 
government or at the mere whim of a legislator. And it is 
important that an institution so basic as marriage should be 
put beyond the reach of those fluctuations and uncertainties 
which are inseparable from the normal working of human 
legislators upon subjects which they regard as entirely their 
own.

The second is more easily stated. All men, when they think of 
"the State", tend to think of their own State. It may not be 
irrelevant, therefore, to remind readers that the question 
whether marriage belongs to the jurisdiction of the Church or 
the State is not simply a question as between the Church and 
their own country. The Church is not of one country or of one 
age. And compared with the marriage-law of--say--Russia in the 
nineteen-twenties or Afghanistan, even a very determined non-
Catholic might prefer that of the Church.

At any rate, we have two authorities legislating on marriage: 
and I propose, in discussing the Church's law of Nullity, to 
make comparisons with the laws of England and of the State of 
New York. To repeat what has already been said in the Preface: 
as this is an essay on the Catholic law of Nullity, the other 
codes being used only for purposes of comparison, I do not set 
out the relevant English and American rules with all possible 
conditions, modifications and exceptions: these are mentioned 
only if they illustrate either a similarity of approach or a 
significant difference.

In general the principles are the same in all three codes: 
being indeed, for the most part, the application to this 
rather special problem, of the general law of contract.

The most striking difference arises from the fact that the 
Church is the Church--a religion, and not the religion of the 
country: the marriage of a priest, for instance, or of a 
person who has taken solemn vows of chastity, or of a Catholic 
with one who is not baptized, is null in Church law, valid in 
English and American law. Other differences lie in the 
application of principles. These I shall consider as they 
arise.

Here I wish simply to emphasize that England and New York have 
a law of nullity, distinct from their law of divorce, and that 
they draw the same distinction between divorce and nullity 
that has already been drawn in this book. Where it is decided 
that a particular matrimonial union is null, both agree with 
the Church in holding that the parties never were married to 
each other at all.



ENDNOTES

1. See pp. 45-6.

2. E.g., Mt. xvi.19; xviii.18.



III. GROUNDS OF NULLITY


NULLITY concerns the contract only: If that is valid, the 
relationship arises and cannot be nullified. Therefore nothing 
that happens only after the marriage has come into being can 
possibly be a ground for a decree of nullity. (Since the 
Matrimonial Causes Act of 1937 there seems to be an exception 
to this rule in English law, non-consummation being now a 
ground for nullity. This is discussed later, page 55.) For 
instance, the fact that the terms of the contract have not 
been kept seems to many a reason for nullifying it. But the 
only question asked by Church or State is: "Was the contract 
properly entered into?" If it was, then there can be no 
question of nullity. The marriage came into being and the 
parties are now governed by the laws of marriage, not by the 
contract: it would simply be untrue, therefore, to say that 
the union never was a marriage--and that is what a decree of 
nullity means. At the risk of wearying readers it must be 
repeated that a decree of nullity does not mean that the 
marriage has been a failure: it means that the marriage never 
existed at all: there was no marriage to be a failure. 

Now, to summarize and apply what was said on pages 9 and 10, 
there may be the appearance of a marriage, yet no real 
marriage for one of the following reasons:

     A. What was agreed to was not marriage.

This would mean that there was not even a contract of 
marriage.

 Assuming that the agreement the parties made was a contract 
of marriage, it might still not be a valid contract upon which 
the relation of marriage would follow, for one of these 
reasons:

     B. The parties were not free to marry.
     C. The parties did not agree freely.

This raises the question of Consent, from which the most 
difficult Nullity cases arise.

     D. The parties did not observe the due form.

There are various ways in which the grounds of Nullity may be 
divided. Here I shall divide them according to these four 
headings: this division, though not altogether scientifically 
unexceptionable, is convenient and covers the ground.

A. Not a contract of marriage:

the exclusion of some essential element--especially 
indissolubility, child-bearing, or (for the baptized) the 
sacrament.

B. The parties were not free

     (i) to marry at all: 
          already married and husband or wife living 
          under age 
          Holy Orders 
          solemn religious vows 
          impotence

     (ii) to marry each other: 
          consanguinity 
          affinity 
          honestas publica 
          spiritual relationship 
          disparity of cult (one a Catholic, 
               the other not baptized) 
          crimen 
          abduction

"Honestas publica" and "crimen" are left in Latin because any 
English translation would mislead. As far as that goes, the 
Latin is misleading too: both are labels for a situation too 
complex to be expressed in one or two words. They will be 
explained later.

C. The parties did not consent: 
     insanity 
     ignorance of what marriage is 
     ignorance of what the ceremony was 
     not the person one thought one was marrying 
     force and fear
     condition attached 
     simulated consent

D. Due form not observed: 
     requirements of the appropriate authority not met

In this list, those under B, which concern freedom to marry, 
are called diriment impediments. "Impediment" is from the 
Latin verb to prevent, "diriment" from the Latin verb to 
nullify or destroy. The other grounds in the list are not 
called impediments, because the person is not prevented from 
making the contract, he simply does not make it. But they are 
diriment--they destroy; where any one of them is present, 
there is no marriage.

There are certain other impediments, called impediment or 
prohibitive, which make a marriage illicit (sinful therefore) 
but not null. Simple vows (not made in a Religious Order)--for 
example, a vow not to marry or to become a priest--are of this 
sort. So is legal adoption where the law of the country makes 
close relationships arising from it a bar to marriage. So is 
difference of religion--the difference between a Catholic and 
a baptized non-Catholic. As this book is on Nullity, these 
need not be discussed.

Some of the diriment impediments listed above are of divine or 
natural law--e.g., the exclusion of one of the essentials of 
marriage, want of consent, impotence, insanity: a man cannot 
have two wives at a time, marriages in the direct ascending 
and descending line are impossible. Others--notably disparity 
of cult, solemn vows, Holy Orders, absence of due form--are of 
ecclesiastical law, introduced by the Church for the better 
regulation of marriage but not of its very nature: from them 
the Church can grant dispensations. Thus the Church could give 
a dispensation removing the impediment set up by spiritual 
relationship or by "crimen," for example, relaxing the 
restrictions against marriage within some at least of the 
prohibited degrees, allowing marriage with one who is not 
baptized, even allowing the marriage of a priest. In some of 
these instances, dispensations are not uncommon; in others 
they are rare and altogether extraordinary. All the 
impediments listed--those of divine law absolutely, the others 
if no dispensation has been obtained--mean that there is no 
marriage.

In a general way it may be said that the grounds of Nullity 
which arise from the nature of man will be found in principle 
in the law of England and in the law of New York. But there 
are considerable differences as to what the law of nature 
actually is especially with regard to indissolubility and 
child-bearing and also with regard to the truth that man is 
not a solitary individual but member of a social order. Some 
of these differences will be considered later in the book. For 
both England and New York, the following list will stand:

     too close relationship 
     bigamy
     under age (16 in England, 18 in New York) 
     insanity 
     impotence 
     want of understanding 
     want of consent 
     want of due form

Both codes make a distinction not found in Church law--at any 
rate in those terms--between marriages void and marriages 
voidable.

In England if, for instance, one at least of the parties is 
under age or officially declared a lunatic, or has a spouse 
living and undivorced, the marriage is void; on other grounds, 
marriage is voidable. The distinction is that voidable 
marriages do, and void marriages do not, require the decision 
of a court that they are null; though it is usually wise to 
seek a court decision in any case.

But once a voidable union is declared null by a competent 
court, it is held to have been void from the beginning. This 
must not be taken too absolutely: consequences can flow from 
it. The children of such marriages, as we shall see, are not 
necessarily illegitimate. In De Reneville v. De Reneville[1] (a 
fascinating case for one who would really study the English 
Law of Nullity) it was held that, until such a union has been 
declared null, the domicile of the wife is that of her 
husband. In this case, as the husband was domiciled in France, 
it was held that his English wife could not petition in 
England for nullity on the ground of his impotence. Since the 
Matrimonial Causes Act of 1950 a wife resident in England for 
three years can petition in such circumstances.

In New York only incest and bigamy make a marriage void, the 
rest voidable. The difference is roughly the same as in 
English law, but in New York a voidable marriage annulled by 
the courts is, according to the Domestic Relations Law of the 
State, void from the date of the court's decision. Does this 
mean that it was valid till that moment? If so, then the 
annulment would be a divorce.

The 1921 case, Matter of Moncrieff's Will,[2] holds that the use 
of the phrase in question in the Revised Statutes (1830) was 
not intended to alter the rule applied by courts of Equity 
that duress and fraud, once proved, made a marriage void from 
the beginning, and that in effect it meant only that the 
marriage must be held valid until the court had acted. But 
such cases as Sleicher v. Sleicher[3] and Gaines v. Jacobsen[4] 
raise, without settling, the question whether this is so.

The two cases deal with a roughly similar set of facts. A wife 
has divorced her first husband, with an agreement that she be 
paid a fixed income unless and until she marries again. The 
woman does marry again and the allowance ceases. The second 
union is annulled. In the first case, the allowance was 
restored, but only from the date of the annulment. In the 
second case the allowance was not restored at all! The reason 
for the difference was that in between the two cases, the law 
made it possible for the wife to get alimony after an 
annulment. Both cases were settled, in fact, not on the 
question of when an annulled marriage becomes void, but on the 
entirely practical principle that a woman should not be 
entitled to support from two men at the same time!

The opinion is ventured by a stranger to New York Law that, in 
general, the annulment of a voidable marriage means that the 
union never was a marriage; yet that it was not a mere nothing 
either, not what lawyers call a "fornicatious union", but a 
real partnership from which certain results flow (under 
section 1140 A. of the Civil Practice Act, for example, a 
woman whose marriage has thus been annulled, may, as we have 
just seen, get alimony).

In Canon Law there is something similar to the distinction 
between void and voidable. Generally no marriage can be 
treated as null until two Church courts have declared it so; 
but some unions are so obviously null--the attempted marriage 
of a priest, for example, or of a person with a spouse living, 
or of a Catholic in a registrar's office--that one decision is 
enough. The Court of the Diocese settles these matters, as 
also where the relationship is too close--by blood or affinity 
or spiritual relation--or where a Catholic has married an 
unbaptized person without a dispensation (see Canon 1990).

But in all other cases there must be two hearings and two 
decisions in favour of nullity. In the Diocesan Court, the 
ecclesiastical court of first instance, there is an official 
called the "Defensor Vinculi"--the Defender of the Marriage 
Bond--a sort of devil's advocate against nullity. If the 
Diocesan Court says the marriage is null, the Defender of the 
Bond must appeal, either to the Court of the Archdiocese or 
the Rota, the Court in Rome which treats of marriage cases. 
Even if the second decision is in favour of nullity, the 
Defender of the Bond may--if his conscience tells him, in 
spite of all, that this is a real marriage--ask for another 
trial, by different judges of the Rota.

All this is a reminder that the Church does not take nullity 
lightly. Where there is certainty, a decree is given. But 
where there is no certainty, it is not: "marriage", says Canon 
Law, "enjoys the favour of the law; when in doubt, a marriage 
is to be considered valid until the contrary is proved" (Canon 
1014). Clearly a social order in which marriages could be 
lightly broken would be a chaos. But in his Allocution of 
October 1941, Pius XII explained that this is to be understood 
only as requiring that the invalidity be proved with moral 
certainty--not, in other words, the sort of proof which 
excludes all imaginable or conceivable doubt. The Pope 
explained the reason why moral certainty is sufficient: "If 
the parties are not in reality bound by any existing bond of 
marriage, they are entitled by natural law to contract 
marriage."


RESTRICTION ON THE GUILTY

We have just noted the statement of Pope Pius XII that an 
ecclesiastical tribunal has no right or power to demand more 
than moral certainty of the invalidity of a marriage; and we 
have noted the reason he gives--namely that those whose union 
is not in fact a marriage are entitled by natural law to 
marry. But the Church treats one class of people as having 
laid themselves open to being denied this natural right. The 
party who was the guilty cause of the alleged nullity of a 
marriage cannot petition for a declaration of its nullity.[5]

Thus he is in a curious position: he may be unmarried, but he 
is debarred from establishing the fact in the eyes of the 
Church, and so cannot contract a valid marriage. In other 
words, to have guiltily impeded one's first marriage is like a 
kind of diriment impediment, not directly invalidating one's 
second marriage, but preventing the declaration of the nullity 
of the first, so that the second cannot take place. This is 
the price a person must pay, the penalty inflicted upon him by 
the Church, for his wrongdoing in the contracting of the first 
union. The regulation is intended also to safeguard, as far as 
is possible, the rights of the wronged party to the union.

Note that this restriction applies only to one who was the 
guilty cause of the impediment or other ground of nullity; one 
who did not know he was acting wrongly would not be affected.

So the guilty party cannot himself petition for nullity. But 
he may place the facts before an official of the diocese 
called the Promoter of Justice. And it is open to this 
official to challenge the validity of the marriage himself.

If the ground on which the validity is impugned is defective 
consent--a positive act of the will excluding marriage, for 
example, or excluding some essential characteristic of 
marriage--then the Promoter of Justice must not at once bring 
suit for nullity, but must urge the parties to make a true act 
of consent, thus validating the original union.

Whether the ground is defective consent or some other, the 
Promoter of Justice may himself decide, as we have said, to 
challenge the validity of the union. The conditions for his 
doing so are set out in the Instructions from the Sacred 
Congregation of Sacraments from which we have been quoting; it 
would be difficult to explain them clearly in the space of 
this book--anyone concerned should consult a priest, who will 
put him in touch with the appropriate authorities.


VALIDATION OF MARRIAGE

Where the impediment which rendered a marriage invalid has 
ceased, all that is needed is a renewal of consent.

If the impediment is publicly known, the consent must be 
renewed before a priest and two witnesses; if it is known only 
to the parties, the consent may be renewed privately; if it is 
known to one only of the parties, then it is sufficient if 
that one renews consent.

Related to this is the "sanatio in radice." This is too large 
a matter for full discussion here. An example must suffice. If 
a Catholic goes through a form of marriage with a non-Catholic 
in a registry office, the normal way of validating the 
marriage would be to go through the correct form before a 
priest. But, if this would be impossible or seriously 
inconvenient, the Holy See can grant a "sanatio in radice" 
without requiring any official act of any kind, even without 
the knowledge of the non-Catholic party, provided that there 
is reasonable assurance that the faith of the Catholic spouse 
or of the children is in no danger. The effect is to make the 
marriage valid "in its root": it is as if it had been valid 
from the beginning. The children born of it are legitimate.

When there is urgent danger of death, marriages may be 
validated by the bishop of the diocese (or the pastor if the 
bishop cannot be got in time) provided that the impediment is 
of ecclesiastical law; but this does not apply if the 
impediment is priesthood or affinity in the direct line. Where 
the marriage is thus validated, any children are legitimated.



ENDNOTES

1. [1948] P. 100 C.A.

2. 235 NY 390.

3. 251 NY 366.

4. 308 NY 216.

5. Sacred Congregation of the Sacraments, "Provida Mater 
Ecclesia," 15 August 1936, "Acta Apostolicae Sedis," pp. 28-
313.



IV. WHAT WAS AGREED TO WAS NOT MARRIAGE

BY this is meant that the man and woman made an agreement, 
only it was an agreement, not to marry, but to enter into some 
other form of union. Marriage is essentially the permanent 
union of a man and a woman for the propagation of the species. 
Any condition made by the parties that contradicts one of the 
essentials of the marriage relationship means that they are 
not contracting to marry, and from an agreement so conditioned 
no marriage can result.


(i) Exclusion of Permanence

The most obvious instance of this is where the man and the 
woman explicitly agree that their marriage shall be terminated 
either at the end of a particular period, or if either of them 
should demand it. This is not an agreement to marry--since 
marriage is the union of a man and a woman for life. If it can 
be proved that such a condition was made, the Church has no 
choice in the matter: there was no contract to marry, 
therefore no marriage resulted. The adequacy of the ceremony, 
the number of children, the years of life together--none of 
these things can alter the fact that the parties were not 
married. This was the ground on which the Marconi Case was 
decided. I summarize the account given in the "Acta 
Apostolicae Sedis" (1927, p. 217):


Guglielmo Marconi in 1903 met and proposed to Beatrice 
O'Brien. She refused him. The following year they met again. 
He proposed and was accepted. Her relations particularly her 
mother--did not welcome the match, as it seemed to them that 
she was not sufficiently in love to live happily with him for 
the rest of her life. Her mother consented to the marriage 
only on his promising not to oppose her seeking a divorce if 
the marriage turned out unhappily. On this condition "sine qua 
non"--accepted by Beatrice O'Brien--the marriage was 
celebrated, in March 1905, before an Anglican minister; for 
though Signor Marconi had been born of a Catholic father and 
baptized in the Catholic faith, he had been brought up by his 
mother as a Protestant, and was in fact an Anglican at the 
time of the marriage."

They lived together--"though neither continuously, nor always 
in the harmony becoming to husband and wife"--till 1918. Then 
they separated, and Signor Marconi later secured a divorce on 
the ground of her adultery. In 1924 he petitioned for a decree 
of nullity from the Diocesan Court at Westminster on the 
ground that the condition made between them at the time the 
marriage was solemnized was contrary to the nature of 
marriage. Evidence of the existence of the condition was given 
by the two parties, by the brother and sister of Beatrice 
O'Brien, and by Marchio Solari, a friend of Signor Marconi.

The petition was successful in the Archdiocese of Westminster, 
and later before the Rota: such a condition (if actually a 
condition and not merely an erroneous belief that marriage 
might safely be entered into since it was dissoluble) means 
that the state the parties agreed to enter was not marriage.


Observe the phrase in brackets. In a 1918 case[1] the law was 
laid down as follows: a mere erroneous belief that marriage is 
dissoluble (even if this is the law of the State or sect to 
which a person belongs) does not invalidate the contract even 
if without that erroneous belief the contract would not have 
been made. But if--and only if--by positive and explicit act 
one party says he wishes to contract a dissoluble marriage, 
then no marriage results.

More recent cases seem to make rather less strict demands. It 
is still held that a mere erroneous belief that marriage can 
be dissolved does not nullify. But a positive act of the will 
excluding indissolubility (or children or fidelity) does, even 
if not made into an explicit condition. This is brought out 
clearly in a decision of the Rota of 23 March 1956.[2] The 
marriage under consideration had taken place in the Church of 
Mount Carmel in the Vicariate Apostolic of Alexandria. Two 
children died in infancy. From 1940 to 1945 the man was a 
prisoner in a concentration camp, and the woman got a civil 
decree of separation. The man asked for and received a decree 
of nullity on the ground that the woman had not intended the 
marriage to be indissoluble. The Rota held that a marriage is 
invalidated not only by an absolute exclusion of 
indissolubility but also by its hypothetical exclusion--a 
positive act of the will that if certain things happen 
dissolution will be sought; that in this case the evidence 
made it clear that the woman's views on the matter at the time 
of the marriage were not merely speculative but practical, not 
merely about marriage as such but about her own marriage; and 
that she was so convinced of her right to divorce that she was 
quite incapable of abandoning her conviction.

Where one party has the intention of contracting a terminable 
marriage without explicitly making it a condition, there is 
one immediate question for the ecclesiastical court. Can the 
existence of this intention (at the time of the marriage of 
course) be proved? Clearly if a person had such an intention 
and never communicated it to anybody, the court could not act 
upon it. But provided the intention can be proved, the 
marriage will be declared null.

So marriage is null where there is a positive intention to 
terminate if--. Earlier the Rota had perhaps gone a little 
further: on a first hearing it refused a decree of nullity, 
but on a second hearing granted it, in a case where a man had 
reserved to himself the right to divorce.

What of non-Catholics living in a society where divorce is so 
frequent as to be almost commonplace? It seems probable that 
many of them no longer regard marriage in itself as 
indissoluble. What matters, however, is not what they think 
about the institution of marriage, but what they intend about 
their own marriage. Only if they can be shown to have 
positively intended a terminable marriage for themselves--
absolutely or conditionally--is their union not a marriage.

There is probably as yet no Western country in which divorce 
is so much a matter of course that it can be presumed that 
those who marry in a registrar's office do so with no 
intention of permanence. But there are countries in which 
things seem to be moving that way--at least towards a point at 
which the onus of proof is on one who asserts the validity of 
such a marriage and not, as at present, on those who deny it.

A careful reading of the two cases quoted will show the 
meaning of the rule that an agreement to contract any but a 
lifelong and exclusive union is not an agreement to marry, and 
that therefore a marriage cannot result from it. The same 
principle holds in English law. In Hyde v. Hyde and 
Woodmansee,[3] a case in England concerning the marriage in 1858 
of two Mormons in Salt Lake City, marriage was defined as "the 
voluntary union for life of one man and one woman to the 
exclusion of all others". A leading case in which this 
definition is applied is In re Bethell, Bethell v. Hildyard.[4]


Bethell married Teepoo, a native woman, in South Africa; the 
wedding was celebrated with all the rites of her tribe; they 
lived together as husband and wife till he was killed; ten 
days later a child was born. In a document signed by him in 
1883, he made some provision for the woman, and the child that 
might be born, out of the proceeds of sale of property owned 
by him in the colony. The English Court held that the union 
was a marriage not in the Christian but in the Baralong sense; 
that the Baralong tribe allowed polygamy; that consequently 
this was not a valid marriage, since according to the law of 
England marriage is the "voluntary union for life of one man 
and one woman to the exclusion of all others".


I quote from the judgment (p. 235):

"The evidence clearly proves that Christopher Bethell intended 
that the relationship between himself and Teepoo should at 
least be that of husband and wife in the sense in which those 
terms are used among the Baralongs. That relationship, 
however, is essentially different from that which bears the 
same name in Christendom, for the Baralong husband is at 
liberty to take more than one wife.... I think that the proper 
inference is that he meant to enter into no higher or other 
union than that which between members of the tribe was 
regarded as a marriage . . . there is nothing to show that 
Teepoo regarded herself as entering into any other union than 
such as prevails among the tribe to which she belongs."

I have italicized certain phrases which are of the utmost 
significance (though, as it chances, some of the legal text-
books appear to have overlooked them). The marriage was null 
in English law not simply because of the custom of polygamy 
among the Baralongs but because the intention of the parties 
was to contract the ordinary Baralong marriage, and such a 
marriage, since it is not the exclusive union of a man and a 
woman for life, is not what English law regards as a marriage 
at all.

A later case bearing closely on this point is Nachimson v. 
Nachimson[5]; it is worth examination because its statement of 
the principle is even clearer.

This was the trial of an issue whether the parties to a suit 
for judicial separation had ever been husband and wife (as 
understood by English law).


They had been married in 1924 in Moscow under the Soviet law 
of 1918. In 1929 the marriage was dissolved, according to 
Russian law as it was then (but is not now), by the man's 
simply giving notice of dissolution at the Russian consulate-
general in Paris: by Russian law marriage could be terminated 
by the desire of one party, and no judge or registrar had any 
option but to record the dissolution. On the first hearing in 
England, Mr. Justice Hill decided that the union was not a 
marriage as understood by the law of England, since it was 
terminable by the desire of the parties. On appeal this 
decision was reversed, and the Russian marriage held to be a 
valid marriage as understood in English law; on the ground 
that the civil law providing for dissolution was not part of 
the marriage contract, and that the condition of dissolution 
did not depend upon any prior agreement between the parties--
in fact, they could not escape from that condition, since it 
was in the law of their country; and they could not have done 
more than they did to acquire the status of husband and wife. 
The woman stated in evidence that when she had married, she 
had intended the union to be for life, and there was no 
evidence that the man had intended otherwise.


It seems that the decision given by the English Court of 
Appeal in this case would equally have been given by the Rota. 
As Lord Justice Lawrence said, any other decision "would 
entail the strange consequence that no valid marriage would 
have been possible in Russia whilst the relevant Russian law 
was in force . . . however much (the parties) might have 
desired to get married or to enter into a union for life".

In short, a State cannot make marriage impossible for its 
subjects merely by itself holding a view of marriage which is 
not the Christian view. The question must always be, not "What 
did the State think about marriage?", but "What did the 
parties intend?" This principle governed the decisions in In 
re Bethell, in Nachimson v. Nachimson, and in more recent 
English cases where nullity--claimed on the ground that 
Russian marriages were invalid because Russian Law does not 
regard living together as of their essence--was refused. It is 
an absolute principle of Church Law. On it the Marconi Case 
was decided.

For English law, the definition of marriage as "the union of 
one man and one woman for life to the exclusion of all others" 
encounters a certain difficulty from the existence of a law of 
divorce. English courts have, of course, held that the 
possibility of divorce is not contrary to the definition, but 
they have never been called upon to decide the precise 
question at issue in the Marconi Case: "Would a condition of 
divorce made prior to or at the time of the marriage-contract 
be sufficient to prevent the definition of marriage from being 
fulfilled and so make the marriage null?" But though English 
courts have never had to decide the point, all three judges in 
the case of Nachimson v. Nachimson expressed opinions which 
seem to suggest that such a prior condition would (as the 
Church courts held) invalidate the marriage. The clearest 
statement was made by Lord Justice Romer:

"None of these difficulties arise except upon the somewhat 
cynical hypothesis[6] that parties intend to contract marriage, 
not for life but only until its dissolution. Lord Brougham 
regarded the intention of the parties as going to the root of 
the matter, and for myself, I prefer to consider each of the 
two persons contracting marriage in this country as intending 
to be bound to one another for life rather than as intending 
to be bound until the other one commits adultery."

As I have said, the point at issue in the Marconi Case has not 
arisen in an English court, or indeed, in a New York court as 
far as I can find. In a 1940 case, Delfino v. Delfino,[7] the 
parties went much further in ruling out anything that could be 
called marriage--the girl persuaded the man to go through a 
form of marriage "to protect her name", promising that they 
would not live together as husband and wife and that she would 
release him by petitioning for divorce or nullity (she to pay 
half the expenses!). In fact she did not keep either promise. 
In the end it was the man who sued for nullity but was refused 
it--not because the Court thought theirs was a real marriage--
simply on the ground that "the conduct of the parties 
constituted a farce and cannot be countenanced". To give the 
nullity sought "would open the door to trial or companionate 
marriage". In 1952 Amsden v. Amsden[8] was a somewhat similar 
case, but with no cohabitation and the nullity was given.

In both cases it was taken for granted that an agreement which 
excludes essentials does not make a marriage. But in both the 
exclusion was far greater than in the Marconi Case. As I have 
said, neither English nor New York courts have had to decide a 
case quite like it. But whatever decision would actually be 
given in these courts--which have to make allowance for the 
fact that civil law allows divorce--there can be only one 
decision for a Church court which holds divorce to be 
impossible. An agreement for a temporary union (however that 
union is to be terminated) is not an agreement to marry.


(ii) Exclusion of Children

There is, however, another form of the general principle that 
marriage will result only from an agreement to marry: if the 
parties explicitly agree that they will invariably practise 
contraception, then they are agreeing to something that 
contradicts the very nature of marriage.

The primary object of the institution of marriage is the 
procreation of children. An agreement which has the prevention 
of procreation as its direct object is, therefore, not an 
agreement to marry; and such a condition, if proved, is ground 
for nullity in the law of the Church. If, in spite of all 
precautions, the woman was found to have conceived, there 
would still be no marriage because what she intended involved 
a denial of marriage's essential nature.

It is to be noted that the Church allows the marriage of 
people who cannot have children--by reason of age, for 
instance--because it is not by their will that the primary 
purpose of marriage is excluded, and the secondary reasons--
companionship, the use of their physical powers, and the 
development of each personality by the other--can still 
operate.

What English law would say about all this was, until recently, 
uncertain. No act of Parliament says what marriage is; and the 
definition adopted by the courts did not help--for, oddly 
enough, while it described marriage as the union of a man and 
a woman for life, by a certain pleasing prudishness it omitted 
to say what the object of the union was: it did not even say 
what the nature of the union was. Two decisions in the forties 
shed light--conflicting light; but as the second was a 
decision of the House of Lords (the court of ultimate appeal 
in such cases) it won the conflict, as far as English courts 
are concerned. The question at issue in each case was not the 
validity of the marriage agreement, but whether the use of 
contraceptives meant that the marriage was not consummated.

In the first case, Cowen v. Cowen,[9] the Court of Appeal 
decided that it meant exactly that, on the ground that one of 
the chief ends of marriage is the procreation of children; and 
this is intentionally frustrated both by the use of 
contraceptives and by "coitus interruptus."

In Baxter v. Baxter[10] the House of Lords took the opposite 
view (at least as regards contraception). Lord Jowett said he 
saw no reason to hold that procreation of children is the 
principal end of marriage: "In any view of Christian marriage 
the essence of the matter is that the children, if there be 
any, should be born into a family, as that word is understood 
in Christendom generally; and in the case of spouses of a 
particular faith that they should be brought up and nurtured 
in that faith."

New York law does regard the carrying on of the race as an end 
of marriage. A Catholic canonist could hardly have put it more 
strongly than it was put in the case of Amsterdam v. 
Amsterdam,[11] where marriage is described as "a mutual and 
voluntary compact . . . suitably ratified, to live together as 
husband and wife until death, with the object of constituting 
a family for the preservation of moral and social purity, the 
continuance of the race, and the propagation of children and 
their nurture, training and preparation for family welfare and 
the general good of society."

All the same, the intention to have no children would not of 
itself make a marriage void by New York law. But the refusal 
to have them might be a cause for annulment as fraud--on the 
ground that, if nothing is said in advance by one party about 
excluding children, the other would be entitled to assume that 
a reasonable effort would be made to have them. In the 1943 
case Schulman v. Schulman[12] the judge said that if nothing had 
been said between the parties before the marriage took place, 
"the silence of the wife warrants the inference that she 
intends to enter into marriage with all the usual 
implications, including willingness to have children". Her 
insistence, after marriage, that she was entitled to decide 
when she should have a child "injects into the contract a 
provision the law does not place there--a mental reservation 
affecting a vital element in the marriage contract". The judge 
refers to Mirizio v. Mirizio[13] (which will be glanced at later 
in a different connection) where the judge who gives the 
majority decision says that refusal of cohabitation "strikes 
at the very basic obligations arising from the marriage 
contract", because cohabitation "is the basis upon which must 
rest the perpetuation of society and civilization . . . if it 
is not to be maintained that we have the alternative either of 
no children or illegitimate children, and the State abhors 
either result". The marriage was annulled on the ground of 
fraud. (The question of fraud will be discussed later; it 
plays a considerable part in New York nullity cases.)


(iii) Exclusion of the Sacrament

It has been said earlier that, for two baptized people, 
marriage is a sacrament: they cannot have the one without the 
other. A definite condition excluding one excludes the other. 
Obviously if, as a result of any of the conditions already 
mentioned, the marriage does not come into being, then there 
is no sacrament. Equally, if there is a definite condition or 
a definite intention to exclude the sacrament, then the 
sacrament is excluded, and there is no marriage. Observe that 
marriage is a sacrament not only for two baptized Catholics 
marrying before a Catholic priest, but for any two baptized 
people marrying in their own Church or in a registrar's 
office. The fact that they do not know that marriage is a 
sacrament does not prevent their receiving it. Nothing would 
do that save a deliberate resolve to exclude the sacrament--a 
resolve they are hardly likely to make given their unawareness 
that marriage is a sacrament. But if they do make that 
resolve, they do not receive the sacrament nor are they 
married. To exclude one of two inseparables is always to 
exclude the other.

The moral of all this section is that no power on earth can 
prevent people making an invalid marriage if they wish to do 
so, because it is they--the parties, not the Church, and not 
the State--who make the contract. The contract is what their 
agreement makes it; and there is no way of preventing people 
omitting something essential or adding something fatal, so 
that the contract they make is not a contract of marriage. The 
Church teaches that people who live together in a union thus 
invalidated are living in sin, unmarried. If she knows of the 
condition beforehand, she can forbid the marriage and refuse 
to solemnize it; but if they do not tell her of the condition, 
she can do nothing about it. Nor can anyone else.



ENDNOTES

1. DeLeffert and Bartels, "Acta Apostolicae Sedis," 1918, p. 
215. 

2. Reported in Bouscaren, "Digest of Canon Law," vol. iv, p. 
332.

3. 1 P.& D. 130

4. 38 Ch. D. 220.

5. [1930] P. 217 C.A.

6. Who knows how long this hypothesis will seem cynical? 

7. 35 NYS 2d 693. 

8. 110 NYS 2d 307.

9. (1945) Times Law Review; reversed in [1946] P. 36 (C.A.).

10. [1948] A.C. 274.

11. 56 NY SUPP 2d 19.

12. 180 Misc 904, 46 NY Supp 2d 158.

13. 242 NY 74, 150 NE 605, 44 ALR 74.



V. THE PARTIES WERE NOT FREE TO MARRY

UNDER this heading come almost all the cases which have no 
place in civil law, though on the whole they present no 
difficulty to the ordinary English or American mind.

For convenience they may be divided into:

     (a)      cases where one or other of the parties is not 
          free to marry anyone;

     (b)      cases where the parties are not free to marry 
          each other.


A. WHERE ONE OR OTHER OF THE PARTIES IS NOT FREE TO MARRY 
ANYONE


(i) Spouse Living

The most obvious case is where one of the parties already has 
a wife or husband living. This is common to both Church law 
and English law. Neither will allow a man to have two wives or 
a woman two husbands, at the same time.

A problem arises where one of them has been married before, 
and has reason to think the first partner is dead, but cannot 
prove it. In English law if one partner is absent for seven 
years continuously, and has not been heard of by the other, 
then the other may marry again without risk of being found 
guilty of bigamy. But if the original party happens to be 
alive, he is still the true husband, and the second ceremony 
is not a marriage. Since the Matrimonial Causes Act of 1950, 
it is permissible for anyone domiciled in England, whose 
partner has thus vanished and who has good ground for thinking 
the partner dead, to approach the court; and if the grounds 
are found reasonable--which may mean at a minimum that the 
petitioning party has made the enquiries possible in the 
circumstances--the court may make a decree allowing death to 
be presumed and dissolving the marriage. Once the decree is 
made absolute, even the reappearance of the absent partner 
does not affect the validity of the second marriage.

In Church law absence alone, even long absence, does not give 
rise to a presumption of death: there must be some evidence 
that the missing partner has died. But it need not be 
absolutely conclusive--it will suffice if the accounts of 
witnesses, for example, or the circumstances in which the 
missing person was last heard of, convince the appropriate 
Church authorities. If the party presumed dead is not dead, 
then the original marriage still stands and the second union 
is not marriage: for the man and woman to cohabit after the 
discovery that the first partner was alive after all would be 
the sin of adultery.

New York also has a rule that a person who has been sentenced 
to imprisonment for life--or sentenced to death, with 
commutation to imprisonment for life--is civilly dead and the 
un-imprisoned spouse can remarry, thus terminating the first 
marriage.

English law complicates its own rule that no one can have two 
spouses at once by allowing divorce and remarriage. But even 
here the divorced parties must tread warily: if one of them 
marries again before the divorce decree is made absolute, the 
second marriage is void.

It may be worth mentioning here the view, not of the Church of 
England but of some Anglicans, that the "innocent" party in a 
divorce who re-marries should be allowed to receive communion, 
just as though he or she were truly married. There is confused 
thinking here. Civil divorce either terminates a marriage or 
it does not. If it does, then there is no problem about either 
party marrying again: innocent of the cause of divorce or 
guilty, each is now single. But if civil divorce does not 
terminate a marriage, then husband and wife are still husband 
and wife: if the "innocent" party marries again--the wife let 
us say, for gallantry--she has two husbands; and however 
innocent she may have been of the original adultery or 
desertion or cruelty (or whatever the cause of divorce was) 
she is now guilty of the sin of bigamy, she is living with a 
man to whom she is not married.

In New York, if a marriage ends in divorce, the party in whose 
favour the divorce is granted is free to marry again when the 
decree has been made final; but the one against whom it is 
granted cannot remarry without the permission of the court, 
which will not be granted till three years have passed, and 
not then without evidence of good conduct.

New York law also differs from Church law and English law by 
not holding absolutely that a person can have only one spouse 
at a time. Reading the cases, one does not easily discover a 
clear principle. Where death has been wrongly presumed and the 
former partner is alive, where divorce in another state is not 
recognized by New York so that the former marriage is still 
valid there, the courts are unwilling to grant a decree of 
nullity to the advantage of one who has behaved badly. They 
give the impression sometimes of acting not upon any view of 
what marriage is but from a natural instinct against letting 
villains profit by their villainy--which is not unlike the 
line the Church takes in not allowing the party who is the 
guilty cause of the impediment to challenge the validity of 
the marriage (see page 29). More profoundly the principle is 
the one brought out in the court's refusal to terminate the 
Delfino marriage (see page 41)--namely that it would be 
against the common good to allow people to make a travesty of 
the law and get away with it. New York regards the common good 
as having a bearing on whether a marriage should or should not 
be declared null, of which there is hardly a trace in English 
law, apart from the feeling that marriages should not lightly 
be declared null. The common good affects the status of 
marriage once it is contracted, but in the question whether 
the contract was validly made practically everything depends 
in English law on what the man and woman did and intended.

In one New York case the man lived with the woman for ten 
years after he knew that the former husband, presumed dead, 
was still alive; he then sued for nullity and did not get it.

There are interesting cases on unrecognized divorce. In one, 
the man paid the costs of a woman's Nevada divorce, knowing 
that New York would not admit it; he married her, sued for 
nullity on this ground, and failed to get it. In another, the 
man arranged and paid for the woman's divorce and married her 
before the divorce was final in order to escape induction into 
the armed forces: he tried for nullity and failed. In recent 
cases the nullity has been granted in these circumstances, but 
the man has been forced to pay alimony.


(ii) Age

Common to all three codes is the principle of a minimum age--
sixteen for boys, fourteen for girls in Church law.

In English law the rule has changed. Till 1929, if either 
party was under seven, the marriage was void; if the boy was 
under fourteen or the girl under twelve, either could confirm 
or repudiate the marriage on reaching fourteen or twelve. The 
Age of Marriage Act of 1929 makes the marriage void if either 
is under sixteen.

In New York a marriage is voidable if either is under the age 
of eighteen. Before the Domestic Relations Law of 1922, a 
marriage was null if either party was under the legal age 
(even if the parents had consented). But now the court will 
consider the facts of the case and decide accordingly; if the 
too young party continues to cohabit after reaching the legal 
age, there will be no voiding of the marriage.


(iii and iv) Holy Orders and Solemn Religious Vows

Peculiar to Church law are the impediments of "ordo" and 
"votum," which render invalid the marriage of men in Holy 
Orders (from and above the rank of subdeacon), and of those 
who have taken Solemn Vows of poverty, chastity and obedience 
in a religious order. There is nothing equivalent to this in 
English law, but a non-Catholic can understand their 
consistency in a Church which forbids the marriage of priests 
and recognizes solemn vows of chastity. These two impediments 
are of ecclesiastical law and the Church can, therefore, 
dispense from them. It seldom does so even for those who have 
not gone beyond subdiaconate or diaconate. Dispensation to 
marry is very rare indeed for those who have been ordained 
priest and is never given to one who has been consecrated 
bishop. (A simple religious vow of chastity, i.e. one not made 
publicly, does not make a marriage null but illicit only, save 
in the case of certain religious orders.)

This may be a convenient place to mention a ground of nullity 
in English law which is not one in the law of the Church. By 
the Royal Marriage Act, if any descendant of George II (other 
than the offspring of princesses who have married foreigners) 
wishes to marry without the consent of the reigning sovereign, 
he cannot do so unless, being over twenty-five, he gives the 
Privy Council a year's notice of his intention; and even then 
he cannot marry if both Houses of Parliament express 
disapprobation. If any such person goes through the form of 
marriage in defiance of these provisions, the marriage is held 
by English law to be null and void.


(v) Impotence

In all three codes, the impotence of the other party not for 
generation, but for intercourse) is a ground for nullity.

The question of impotence is too complex, legally and 
medically, for detailed treatment here. In a general way, all 
three codes are agreed that only inability to have intercourse 
is a ground for nullity. Inability to procreate children, 
whether through age or some physical defect, does not render a 
marriage void. (In a New York case it was decided that 
incapacity for intercourse is no ground of nullity if the 
parties were old at the time of the marriage--the defendant 
was sixty-nine.) To render a marriage null, impotence need not 
be general; it is sufficient if one party is impotent with 
regard to the other (which may be a purely psychological 
incapacity).

In Church law the condition must be shown to be either 
absolutely incurable, or curable only by a dangerous 
operation. This is roughly the law of New York also, but it is 
no longer a requirement of English law. In one case,[1] the 
Roman Rota gave a decree of nullity where intercourse was 
rendered possible to the husband only by the taking of 
aphrodisiacs which deprived him, for the time being, of the 
use of reason.

New problems have arisen since the coming into use of 
artificial insemination. Quite apart from the morality of 
this, Pius XII, in an Allocution of 29 September, 1949,[2] 
states that it does not remove the impediment of impotence. In 
his Address to the Midwives, 29 October, 1951,[3] the Pope 
taught that the union in one flesh of which Our Lord spoke 
does not mean the union of two life germs, which can be 
brought about artificially, but of two persons.

In an English case,[4] a nullity was granted on the ground that 
the husband's incapacity for complete intercourse was not 
remedied by artificial insemination even with his own seed. 
(It is thought by a leading English authority[5] that artificial 
insemination with seed from a third person might not be held 
adultery because there was no bodily contact--an argument not 
unrelated to what the Pope said about union in one flesh. The 
same author reminds us that the use of a third party as donor 
might mean that he was the father, by different mothers, of 
children who, not knowing that he was their father, might 
marry each other incestuously.)

A careful distinction must be drawn between the nullity of a 
marriage on account of impotence and the dissolution of a 
marriage on account of non-consummation. The conditions in 
which a non-consummated marriage can be dissolved by the Pope 
are discussed in Chapter VIII. To summarize--impotence is a 
ground for nullity in all three laws: non-consummation is a 
ground for dissolution in Church law but not in English law; 
until recently non-consummation was not by itself a ground for 
nullity in any of the three codes, since is arises after the 
marriage. But since the Matrimonial Causes Act of 1937, non-
consummation has been a ground for nullity in English law. And 
where there is non-consummation New York courts frequently 
decide for a nullity which they would not have granted had 
there been intercourse.


B. WHERE THE PARTIES WERE NOT FREE TO MARRY EACH OTHER

It is the rule of all three codes, though with differences of 
detail into which we need not enter here, that a marriage is 
null if the parties are too closely related. The relationship 
may be blood-relationship (consanguinity) or relationship by 
marriage (affinity).


(i) Blood-Relationship

In the direct line of ascent and descent, marriage is never 
permissible. A man cannot marry any ancestress or any 
descendant, whether legitimate or not.

In the collateral line--brothers and sisters (whether of the 
whole or half blood) cannot marry one another, nor can first 
cousins or second cousins. Uncles cannot marry nieces, or 
aunts nephews.


(ii) Affinity

By marriage (consummated or not) each partner becomes related 
to the other's blood-relations, though of course the relations 
of one are not related to the relations of the other. But the 
impediment of affinity (New York law knows nothing of it) is 
absolute only in the line of ascent and descent: a man cannot 
marry his dead wife's mother or grandmother or her daughter or 
grand-daughter. In the collateral line the impediment extends 
only as far as first cousins--a man cannot marry his dead 
wife's sister, aunt, niece, or first cousin. (All these 
impediments are listed for the man, they apply to the same 
degrees of relationship for the woman.)

For both blood-relationship and relationship by marriage, 
dispensations can be obtained. In the direct line of 
consanguinity they are never granted; a dispensation for the 
marriage of an uncle and niece would be granted only for very 
strong reasons. Dispensations are granted from the impediment 
of affinity in the collateral line, but rarely in the direct 
line--if a man wanted to marry his dead wife's daughter by a 
previous marriage, for instance.


The impediment of affinity gave rise to the most important 
nullity case in English history. Henry VIII, whatever his 
limitations as a theologian may have been, was not so ill-
instructed as to think that he could secure a divorce. What he 
sought was a decree of nullity, on the ground that he had 
married his deceased brother's wife, Katherine of Aragon.[6] 
Pope Julius II had given a dispensation for Henry's marriage. 
There was a good deal of argument, of which the relevance is 
not obvious (since affinity arises from marriage whether 
consummated or not) as to whether the marriage with Arthur had 
ever been consummated--Katherine said it had not. In any case 
Henry saw that his only chance was to show that Julius II's 
dispensation did not remedy the impediment. His first idea was 
to deny the Pope's power to give a dispensation in such a 
case. The Church can legislate on marriage, provided the God-
given nature of marriage is not infringed; the Pope can 
dispense, therefore, from any impediment that is not of divine 
institution. To show that Julius had no power to grant this 
dispensation, Henry would have had to show that marriage with 
a deceased brother's wife was contrary to divine law. 
Obviously it is not; and his only hope, therefore, was to show 
that the dispensation was invalid, through some irregularity 
of form. This too failed. How Henry to cut that small knot cut 
a greater one the whole world knows.


(iii) Public Decency (honestas publica)

Affinity arises only from marriage. But the Church has 
established another impediment arising from sexual unions 
other than marriage. If two people have lived together either 
in an invalid marriage (consummated or not) or in a liaison 
publicly known--it is regarded as an affront to public decency 
for either to marry the parent or grandparent, child or 
grandchild, of the other.

The next three impediments belong to Church Law only. So 
indeed does the one following them, abduction, though England 
and New York might declare marriages void on its account as 
preventing free consent.


(iv) Spiritual Relationship

This arises from baptism. The recipient of baptism cannot 
marry either a godparent or the person who performed the 
baptism. (For readers unfamiliar with Catholic teaching, it 
may be worth mentioning that it is not only priests who 
baptize. In case of emergency anyone may baptize--man or woman 
or child.)


(v) Difference of Cult

"Disparitas cultus" is the technical name for the difference 
between one who is baptized and one who is not. (It should not 
be confused with "mixta religio"--the difference between a 
Catholic and a baptized non-Catholic.) As we have already 
noted, the impediment of difference of cult no longer applies 
to baptized non-Catholics unless they were at one time members 
of the Church--either having been baptized in it or converted 
to it for a time. But Catholics, in this wide sense, cannot 
validly marry an unbaptized person unless they obtain a 
dispensation.

The conditions on which a dispensation is given are the same 
as for mixed marriage (see Chapter VII). The non-Catholic must 
promise, among other things, that any children of the marriage 
shall be brought up as Catholics. If it is proved that the 
promises were not meant when they were given, then the 
dispensation is null, the impediment of difference of cult 
remains, and the marriage is null. A similar insincerity would 
not invalidate a mixed marriage, since "mixta religio" is not 
a diriment impediment. When a mixed marriage is null it is 
because it was not celebrated by a priest.

Where the unbaptized party gets baptized before the wedding, 
the impediment of disparity is removed and there is no need 
for a dispensation. But if it is proved afterwards that there 
was no intention of receiving the sacrament, that the 
unbaptized one went through the ceremony merely to induce the 
Catholic to marry him, then he is not baptized and the 
marriage is null.

The next impediment, though it does not arise from any 
principle peculiar to Catholicism, belongs to Church law only. 
Therefore it does not affect the unbaptized.


(vi) Crimen

The name is left in Latin as any English translation would be 
misleading. (The Latin word is misleading, too, as we have 
noted, but being in Latin is likely to mislead fewer readers.) 
The impediment arises when the adultery of one party to a 
marriage is accompanied by a threat to the life of the other. 
Thus if A and B are married, and A commits adultery with C, 
and either promises to marry C, or goes through a form of 
marriage with C, or if either of them kills B--then any 
subsequent marriage between A and C is null.

Further if, even without adultery, A unites with C in a plot 
to kill B, a marriage between A and C would be null. The point 
of the law is to protect the unwanted B. A married man's 
adultery may be in itself no more than a yielding to 
temptation involving infidelity to his wife but no actual 
danger to her; but when it is accompanied by a promise of 
marriage, he clearly has in contemplation the death of his 
wife; and an adulterer should not be encouraged to contemplate 
the death of his wife. If it can be shown that the promise of 
marriage was dependent not on the death of the unwanted wife 
but on the possibility of her divorcing A, the impediment 
would not arise. (There is a faint--but only a faint--
suggestion of this in the rule of English law that if X, 
during his marriage with Y, promises to marry Z, and then, 
upon Y's death, refuses to carry out his promise, Z cannot 
succeed against him in an action for breach of promise. The 
law holds such a promise void, as against public policy[7])

Extremely complicated questions can arise--thus, if a man 
kills his wife, not in order to be free to marry his partner 
in adultery, but because of his rage at discovering that his 
wife had been guilty of adultery too, no ecclesiastical 
impediment would arise from the killing (though the civil law 
might interfere with his marital plans by executing or 
imprisoning him). No more is attempted here than to give the 
general notion of the impediment.

The last impediment on our list might seem to belong logically 
in the next chapter, which considers the necessity and the 
conditions of free consent. But Canon Law includes it with the 
impediments.


(vii) Abduction

The technical term is "Raptus." It is laid down by the Council 
of Trent that if a man carries off a woman with intent to 
marry her, he cannot do so--even if she says she is willing--
as long as she remains in his power. To incur impediment, the 
man need not actually remove the woman from her own residence: 
it is sufficient if he has her in his power.

A case in point is given in the "Acta Apostolicae Sedis" 
(1918,p. 207):


Iang-k'eou-tze, a Catholic, lived in Manchuria with her cousin 
Kao, by whom she had a son; ten men, including Francis Wang-i-
chan (also a Catholic), carried her off to the house of Wang's 
family and tried to persuade her to marry him; she escaped 
back to Kao. Five or six armed men brought her back. She said 
she was willing to marry Wang. Four catechists questioned her 
on the day before the marriage, and she said she had no cause 
not to marry him. Four or five armed men guarded her that 
night and during the wedding there were armed guards at the 
church door. It was held that her application for nullity must 
be granted, because whether she was willing or not, this was 
certainly a case of "raptus."


The law does not say what would happen if the woman abducted 
the man; nor does any man appear to have sought a decree of 
nullity on this ground.



ENDNOTES

1. Bouscaren III, 273-4.

2. "Acta Apostolicae Sedis," pp. 41-55.

3. "Acta Apostolicae Sedis," pp. 43-835.

4. R.E.L. v. E.L. (1949), p. 211.

5. Latey, p. 77.

6. See Constant, "La Reforme en Angleterre."

7. See Wilson v. Carnley, [1908] 1 K.B. 729.



VI. THE PARTIES DID NOT CONSENT

PRACTICALLY all the grounds under this heading may be found in 
English and American law as well as in the law of the Church. 
The phrase used by the Canon lawyers, "consensus non 
concubitus facit matrimonium"--consent, not intercourse, makes 
a marriage--would be used by the lawyers of England and New 
York. Nothing whatever is of any use as a substitute for 
consent. No one can be married without his consent; and 
consent is an act of the will, not simply words in the mouth. 
If either party does not consent, the ceremony, however 
splendid, is a mere form, accomplishing nothing.

Marriage is grounded upon a contract between a man and a 
woman; unless they agree to marry each other there is no 
marriage. So far all is simple--no consent, no marriage. But 
cases arise where there is an appearance of consent yet no 
genuine consent. They may arise in one of two ways:

     (a) from want of knowledge;

     (b) from some cause affecting the will.


A. WANT OF CONSENT FROM WANT OF KNOWLEDGE

There will be no agreement to marry if one of the parties is 
insane, or does not know what marriage is, or that he is 
agreeing to marry, or who it is that he is supposed to be 
marrying.


(i) Insanity

Insanity is not listed among the impediments in Canon Law, but 
by natural law it obviously is one; the Church agrees with 
England and New York that an insane man is as incapable of 
making the contract of marriage as of making any other 
contract. Differences among the three codes relate to the 
degrees of mental derangement--lunacy, idiocy, mental defect, 
and so on--and the possibility of lucid intervals. But, in 
all, the question to be settled is whether in this particular 
case this particular person knew what he was doing and could 
be held responsible for it.

The insanity, of course, should have existed at the time of 
the marriage. But cases in the Rota are decided on the 
principle that when it exists before and after, it may 
reasonably be presumed to have existed at the time; and even 
if there were no actual symptoms of insanity till after, 
expert evidence may be able to show that a particular form of 
insanity must have existed before. New York allows an 
annulment even when the insanity occurs after the marriage 
provided it has lasted five years.

Church law allows for valid marriage during lucid intervals, 
so does New York Law; in English Law a lunatic, who has been 
officially declared so or whose estate is managed by trustees 
under the Lunacy Laws, cannot marry even during a lucid 
interval--unless he has meanwhile been officially declared to 
have recovered his sanity. Since the Matrimonial Causes Act of 
1950, a marriage is voidable if one of the parties was, 
unknown to the other, subject to recurrent fits of insanity. 
It has been held sufficient for nullity if one of the parties, 
not insane otherwise, had such delusions on the subject of 
marriage that "there was not a real appreciation of the 
engagement apparently entered into".[1] But in practice the 
probabilities are that the courts of all three codes would 
give very much the same decisions. Certainly Church courts are 
fully aware how unlucid lucid intervals may be.


(ii) Ignorance of What Marriage Is

The parties need not know all the physical details of marriage 
beforehand, but they must at least know that it is for the 
procreation of children, that this is a process in which both 
must take part, and that each is giving a right to the other 
exclusive of all other people.

A case in point is that of Tsi-Tcheng-Lin.[2]


His father bought him a wife, one Maria Hin, aged thirteen. 
Though he was thirty, he did not know what the ceremony was 
all about. He could not do the simplest things of daily life; 
his intelligence was less than that of a boy of seven. Five 
years later she became a Christian. Later still she took a 
lover, by whom she became the mother of several sons. Tsi-
Tcheng-Lin not only did not complain, but saw nothing odd 
about it, welcomed the lover as lover to the house, did not 
know enough of the meaning of marriage to realize that his own 
rights were being infringed. Finally he left her and she 
sought and was granted a decree of nullity on the ground of 
his want of consent. It was held that for the contract of 
marriage, the mere use of reason was not sufficient, but a 
degree of discretion proportioned to the contract--that is, 
one must know, at any rate vaguely, the nature and essential 
properties of marriage.


With this case may be compared the English case of Harrod v. 
Harrod.[3]


This was the case of a deaf and dumb woman. But apart from 
this defect, it was shown that her intelligence was well 
developed (incomparably more, in fact, than Tsi-Tcheng-Lin's). 
The marriage was, therefore, held valid, but the test was 
applied: did the parties sufficiently understand the nature of 
the contract--that is, did they understand that they had 
agreed to cohabit together during their joint lives, and not 
to cohabit with any other person?


(iii) Ignorance of What the Ceremony Was

In the light of all that has been said, it may scarcely be 
necessary to mention that if a person went through a ceremony 
of marriage not knowing what he was doing, then no marriage 
could result. This might happen either through mistake as to 
the nature of the ceremony e.g., thinking it a ceremony of 
betrothal; or through some more general confusion--e.g., from 
drunkenness or somnambulism. In Mehta v. Mehta,[4] the woman was 
granted a decree because she had not known she was being 
married. She thought the ceremony, which was in Hindustani, 
was only one of conversion to the Hindu religion.


(iv) Error as to the Person

If one person goes through the form of marriage with another, 
thinking that other to be some third person, the marriage is 
null. Mere error as to the quality of the person one is 
agreeing to marry--the character, for example, wealth, or 
social standing--does not make the marriage null. The single 
exception in Canon Law is that if one married a slave, not 
knowing that he was one, it would be no marriage. Obviously, a 
slave, owned by, and at the disposal of, a third person, could 
not fulfil the obligations of married life, might indeed be 
sold to a new owner in a distant place. Indeed most countries 
held that a slave could not make any contract.

Until recently English law had no exception at all to the rule 
that only error as to who the person is makes a marriage 
voidable; but two exceptions were introduced by the 
Matrimonial Causes Act of 1937, re-enacted in the Act of 1950. 
A marriage is now voidable if

(a) one person was subject to recurrent fits of insanity or 
epilepsy, or was suffering from venereal disease in a form 
which would render it communicable to the other; or (b) the 
woman was pregnant by some other man. In both cases, the 
marriage is voidable only if the condition was unknown to the 
one now petitioning for nullity.

Observe that both Church law and (with these two exceptions) 
English law proceed on the principle that all that is required 
is that this man and this woman freely consent to marry each 
other. The mere fact that one of them might not have consented 
if he had known certain things about the other--his or her 
temper, for instance, or sexual habits, or solvency--has no 
bearing on the question. And given the importance for society 
of a stable institution of marriage this reasonable.

But there is one element of the general law of contract which 
New York applies to the contract of marriage and the Church 
and England do not: if one party is, by the fraud of the 
other, led to believe something without which he or she would 
not have agreed to marry, then the marriage may be declared 
null upon the petition of the deceived party (the deceiver is 
bound by it unless the other takes action). The fraud may lie 
in assertion of what is false or concealment of information 
that the other party is entitled to have. The author of one 
textbook[5] quotes a dictum to the effect that it is "as easy to 
get an annulment in New York as a divorce anywhere in the 
United States" and goes on to express his own view that "there 
are more general and particular grounds, both in number and 
variety, for marriage annulment in New York than for marriage 
termination in all other States combined". He has counted 150 
grounds under the heading of Fraud or Misrepresentation on 
which marriages have been annulled.

It has been suggested that the reason why New York courts 
declare marriages void for fraud more easily than other States 
is that divorce is much harder to obtain in New York (adultery 
is only ground): annulment for fraud is a way out. Certainly 
other States require that the misrepresentation or concealment 
should concern one of the essentials of the marriage relation, 
whereas New York courts (generally anyhow) require only that 
it should concern some fact or intention, the knowledge of 
which would have prevented a reasonably prudent person from 
going on with the marriage.

Thus the courts of other States have refused to annul a 
marriage where a Catholic was induced to consent by a lying 
statement that the other party's previous spouse, divorced and 
still alive, was dead: this was held not to concern an 
essential of the marriage relation. It is hard to see a New 
York court making such a refusal. Civil marriages have been 
annulled in New York because one party promised that a 
religious ceremony would follow and refused to keep the 
promise--on the ground that the promise was made in bad faith, 
with no intent of keeping it, solely to get the other to 
consent (and there is a curious case[6] where a marriage was 
annulled because the man induced the woman to consent to a 
civil marriage by a promise, not kept, that he would later 
become a Catholic--she must have been an oddly instructed 
Catholic herself).

In New York it now seems established as sufficient that the 
fraudulent pretence must concern a really material fact (in 
one case a pretence to hold a college degree was held not 
material enough!). The plaintiff must satisfy the court that, 
but for the deception, he or she would not have married; and 
the fraud must not be the sort of a lie that a sensible person 
would have discounted.

But it is not possible to define these rules with mathematical 
accuracy.

Courts will differ, judges in the same court will differ. In 
Longten v. Longten[7] it was stated that "misrepresentations 
must be of existing material facts bearing directly upon the 
health and happiness of the one who was misled". A year 
earlier it had been said in Williams v. Williams that the 
grounds "need not concern the essentials of the marriage 
relationship; any fraud is adequate but for which the party 
deceived would not have consented". There seems to be a 
difference at least of emphasis here. One of the difficulties 
in the way of the writer on this subject is that only a tiny 
proportion of the cases in which marriages are declared null 
are the subject of detailed report. Those I have read have 
left me with an impression that the Court of Appeals takes a 
wider view of the fraud that invalidates a contract of 
marriage than some of the lower courts, tending to lessen or 
eliminate the distinction between the contract of marriage and 
contracts generally.

The number of marriages declared null in New York, largely 
because fraud in inducing consent is a ground for nullity, 
will strike a Catholic as astronomical. In the five years 1942 
to 1946, there were 11,128 decrees of nullity[8] in New York 
City alone. And the proportion of the marriages terminated by 
annulment to those terminated by divorce is larger than in 
other States nearly 28% over the five year period, and rising 
(it was 18% in 1942 and 35% in 1946). These were war years of 
course. I have been unable to get comparable figures for more 
recent years. But in the one year 1950, according to the N.A. 
Abstract of Statistical Information, there were 11,700 
marriages terminated in New York State, and lawyers tell me 
that the proportion of annulments to divorces is still very 
high.

Frequently marriages declared null on the ground of fraud in 
New York might have been declared so by an English court or a 
Church court on one of the other grounds. But there is a real 
difference of principle all the same. For Canon Law and the 
law of England, apart from the handful of exceptions already 
stated, free consent makes a marriage, no matter how that 
consent has been induced.


B. WANT OF CONSENT FROM CAUSES AFFECTING THE WILL

For marriage, we have noted, a man and a woman must consent to 
marry each other. The defects of knowledge we have been 
discussing directly affect the last four words "to marry each 
other"--one of the parties not knowing what marriage is, or 
what the ceremony is, or who the other person is, or, in the 
case of insanity, what any of it means.

The causes in the will directly affect the consent itself: one 
of the parties, though uttering consenting words, does not in 
fact consent. The consent is uttered either under compulsion 
(force and fear), or with reservations attached (condition), 
or to gain some other end while excluding marriage 
(simulation).


(i) Force and Fear

There are probably more suits for nullity under this head in 
Church Law and English Law than under any other (in New York 
the commonest ground, as we have seen, is fraud). The general 
principles are common to all three bodies of law. Consent is 
not free--better, it is not consent--if induced by pressures 
or threats. For the resultant fear to be a ground of nullity 
it must be (1) caused by someone else: in 1927 the Rota gave a 
decree of nullity to a man who had been led to the altar at 
the point of a gun; but a man who, having seduced a girl, 
married her through fear of going to Hell if he did not, 
cannot plead this fear, over-mastering as it may have been, as 
a ground for nullity; (2) directed to extorting matrimonial 
consent: if a criminal marries a girl because as his wife she 
cannot give evidence which might hang him, he cannot use his 
fear that the public prosecutor would call her as a witness 
against him as a ground for nullity.

Indeed he would fail in such a plea on another ground as well-
-the fear must be produced by unjust means, it must be fear of 
action which the other person is not justly entitled to carry 
out.

Yet there can be some subtle problems here. In a case decided 
by the Rota (13 August, 1924), a girl married a man because a 
rich grandmother had threatened to withdraw all support if she 
did not. A decree of nullity was given because, though the 
grandmother was entitled to withdraw her support, she was not 
entitled to use the threat of its withdrawal to force consent 
to a marriage. There is a rather difficult line also to be 
drawn in those American States where the law entitles a judge 
to give the man the choice of marrying the girl or going to 
prison. If the man married the girl, his consent would have 
been induced by a threat--but would it have been an unjust 
threat? It is not unjust to attach a prison sentence to 
seduction; it is not unjust to suspend the sentence if the 
seducer marries the victim. But it is not easy to draw a line 
between a man's knowing that marrying a girl will probably 
save him from prison, and a judge's threatening him with 
prison if he does not marry her: though of course if the man 
were wrongly arrested, there would be no problem: the threats 
would nullify the marriage.

Injustice is usually easy enough to see. Thus the Rota gave a 
decision for nullity in a case where the man had threatened to 
tell the girl's parents that she had had intercourse with him, 
and in another where the girl had threatened to commit suicide 
if the man did not marry her. That threat alone would not have 
sufficed, for it was a threat to kill herself not him, but it 
would have exposed the man to infamy, and she had a rather 
dangerous brother. A New York court held a marriage null where 
the man had threatened to kidnap the girl and blow up her 
parents' house.[9]

A decision given by the Rota (10 May, 1918) is most 
instructive.[10]


A native South African girl, captured in a war, uttered some 
kind of matrimonial consent before a priest, though neither 
she nor the man was baptized. Later both were baptized, lived 
together for seven years, had nine children. She never ceased 
to protest against the marriage, but had no means of escaping. 
A daily communicant, she finally renewed her consent under 
threat of refusal of the sacraments if she did not. At first 
opportunity she escaped. The suit was brought by the man, and 
a decree of nullity given on the ground that the woman had 
acted through grave fear.


There is a special mode of fear--reverential fear-arising from 
the respect due to someone (for example, a parent) to whom one 
is subject, but with some such added reason as ceaseless 
beseechings, threats, harsh words, and so on. There is a full 
discussion of force and fear in general and of reverential 
fear in the case of Marguerite Guenard and Joseph Iavelle.[11]


The girl, aged nineteen, did not want to marry the man; 
witnesses deposed that she had shown her dislike very 
strongly, and begged her mother not to force her to marry him. 
The mother, not by argument only, but by threats of driving 
her from the house and even hitting her, had her way. 
Seventeen years later the couple (who had been consistently 
inharmonious) separated. She applied for nullity. The court 
took these facts into account: (1) that the mother admitted 
the pressure she had exerted (the confession of those who 
caused the fear being preferable to all other testimony); (2) 
that the mother was of a domineering character (her husband 
suffered from this as well as her daughter); (3) that the 
daughter was weak, yielding, naturally obedient (it is 
important to note that the question always is--not: "Was the 
pressure enough to influence the average person?", but "Was it 
too much for the individual concerned?").

As to the length of time--seventeen years--that was 
sufficiently explained by the fact that she, in common with 
most other people, knew nothing of the law of nullity.


Another case of this sort is given in the Acta Apostolicae 
Sedis.[12]


Eugenie Le Fortier married Jean-Baptiste Topuzian in 1910. She 
was nineteen. After three years they separated and obtained a 
civil divorce. In 1917 she petitioned for a decree of nullity 
on the ground of force and fear. It was shown that her father 
forced her (1) with threats of not allowing her to go on 
living in his house; (2) with threats of refusing to keep her 
mother--he was anxious to be rid of her that he might be free 
to look after his illegitimate children and their mother. She 
had shown signs of sadness on her wedding-day. The father 
admitted the threats and added that she would never have dared 
to refuse his orders. The petition was granted.


These cases more or less set out the Catholic doctrine on the 
subject. By way of underlining certain points, it is worth 
while noting the case of Virginia Marchese.[13] Here the Rota 
laid down:


(a) That a trifling degree of fear is no ground for nullity--
if, for example, this girl had not been subject to threats, 
but only to arguments.

(b) That consent is sufficient for validity: mere absence of 
love does not invalidate a marriage; it is nowhere laid down 
that marriage must be strongly desired.


Most of us, I imagine, feel a difficulty about marriages in 
countries where the girl's parents invariably choose the 
husband--in some, she does not even see him before the 
wedding. How is her consent free? If this way of arranging 
marriages is so invariable in her world and of such long 
standing, it probably never occurs to her that any other is 
possible. She may hope (for the most part, one imagines, not 
unreasonably) that her parents will make a pleasing choice; 
she may have met the man and disliked him; but either way she 
does not dream of withholding her consent. But if a girl born 
in such a society did learn of other possibilities and decided 
that she simply would not have the man of her parents' choice 
but was forced to all the same, the marriage would be null, 
and would be so declared by a Church court if she could bring 
suit. Short of universal custom, of course, there have been in 
all societies, including Catholic societies, tyrannous parents 
forcing marriages which a Church court would have declared 
null--but the victim either did not know of the law of nullity 
or had not the nerve to invoke it.

A careful statement of the law on force and fear will be found 
in Appendix A, where the Marlborough Case is set out in full. 
For a degree of fear less grave than in the Marlborough Case 
but ground for a nullity decree just the same, see the 
Garraud-Pic Case.[14]

With these Roman cases we may compare certain English cases. 
In Scott v. Sebright,[15] it was laid down that the validity of 
a contract of marriage must be tested like the validity of any 
other contract.[16] In order to have a contract held null and 
void through fear, it is not necessary that the fear should be 
such that a person of ordinary courage and resolution would 
yield to it; if the party in question is incompetent to resist 
pressure improperly brought to bear, then there is not true 
consent, and consequently no contract.

The facts were as follows:


Miss Scott, an heiress, was induced by Sebright, to whom she 
was engaged, to accept bills to the amount of twenty and 
thirty thousand pounds. The discounters threatened her with 
bankruptcy proceedings and Sebright persuaded her that her 
only hope of avoiding ruin was to marry him. Just before the 
ceremony, which took place at a registry office, he threatened 
to shoot her if she showed she was not acting of her own free 
will. After the ceremony the parties separated and the 
marriage was never consummated. Nullity was granted for the 
reasons given above.


It will be observed that the principles on which this case was 
decided would be sufficient to cover the decisions given in 
the Roman cases I have quoted; but the facts show greater 
pressure than either. It is a question, therefore, for whoever 
would compare the two systems, whether an English court would 
consider facts similar to those in the Roman cases sufficient 
to secure nullity. I do not bring the New York courts into the 
comparison, because I have not studied so many of their 
decisions. Summarizing the Rota cases and the English cases I 
have been able to examine, the following statements appear to 
be correct:


(a) The English cases in which nullity was actually granted 
all show a greater degree of pressure than the least that has 
been available to secure a decree of nullity in the Roman 
courts.

(b) In the English cases where nullity has been refused, it 
would seem (though this is, of course, no more than my own 
quite inexpert opinion) that it would equally have been 
refused by the Roman courts.

(c) Thus the least degree of pressure accepted by Roman courts 
lies midway between those refused by English courts and those 
considered sufficient. Nothing quite equivalent appears to 
have come before the English courts.

The case of Clarke v. Stier[17] might easily have come to our 
assistance but for a complication. In this case the girl was 
induced by her mother to go through the ceremony of marriage. 
It was shown that her mother had exercised an abnormal amount 
of control over the girl; and the courts gave a decree of 
nullity; but it does not appear whether this ground would have 
been sufficient if it had not also been shown that the girl 
thought she was merely going through a ceremony of betrothal.

(d) The principle laid down in English cases would, if 
logically applied, cover any nullity decree granted under this 
head by Roman courts.


At any rate the rule is clear enough in all three codes: no 
one must be forced to marry; a degree of pressure which makes 
the consent no longer free invalidates the marriage. Both 
Church and State have two guiding principles: that marriage 
should be free; and that the stability of society demands that 
unions should not be lightly upset. It might not be too broad 
a generalization to say that if there is any difference 
between the two codes it arises because the Church is more 
anxious about the first and the State--England anyhow--about 
the second (though this anxiety is less obvious in the matter 
of divorce!). At any rate a rough working-rule for nullity in 
Church law is to ask the question: "Did A through fear 
contract a marriage which but for that fear A would certainly 
not have contracted?"

Thus not only is it true that no one must be forced to marry; 
the fact is that no one can be forced to marry; the force 
nullifies the consent without which there can be no marriage. 
And all who attach any value to the liberty of the individual 
should be glad that in these three great systems of law it is 
so carefully secured in a relation of such importance.


(ii) Condition

A marriage may be invalidated by a condition made by one of 
the parties that he agrees to marry only on the understanding 
that some particular thing (extrinsic to the marriage contract 
or relation) has not happened or will not happen.

The effect of such a condition, if it refers to the present or 
past, is that if it is fulfilled the marriage comes into 
being; if it is not the marriage is null. If it refers to the 
future, then the marriage does not come into being till it is 
fulfilled.

To affect a marriage the condition must be explicitly attached 
to the consent in such a way that it clearly makes the consent 
provisional. It is not sufficient that it should be a contract 
made at the same time, or an agreement without which the 
matrimonial consent would not have been given. Thus if a party 
says (implicitly or explicitly), "I do consent because, e.g., 
you have made certain statements or promises," then the 
statements or promises give rise to the consent but do not in 
any way limit it. If they are false statements, or promises 
never kept, the consent has been given through error; but 
still it has been given. But if the party says, "I do consent 
provided that, e.g., such and such a thing is true," then he 
has only consented provisionally; a condition made in that 
form means that he has not consented--unless the condition 
happens to be true.

A case of this sort, where nullity was sought on the ground of 
a condition relating to the past which was not fulfilled, is 
the case of B. C. and P. D. in the "Acta Apostolicae Sedis."[18]


Here the woman agreed to marry the man on the explicit 
condition that he had never had a mistress. She left him the 
following year on the discovery that he had had a mistress and 
sought a decree of nullity. This was granted after a long 
argument, on the ground that while a mistaken view held by her 
as to his past career would not invalidate the marriage (even 
if she would not have married but for that view), an actual 
condition certainly did.


In another case the Rota decided for nullity[19] (10 December, 
1927) where a girl had married the man on the explicit 
condition that he was a rich man, and in fact he hadn't a 
penny.

The Church naturally objects strongly to the attaching of 
conditions to matrimonial consent, save in very special 
circumstances; but if the parties make them, and the Church is 
not told, she is quite powerless to do anything about it. If 
the contract is made by the parties to depend on a condition, 
it simply does; the agreement is theirs and no one else's.

The distinction between consent given because of statements or 
promises and consent given conditionally exists equally in 
English law. Moss v. Moss[20] was the case of a man whose wife 
proved to have been pregnant at the time of her marriage to 
him. (since 1937 the pregnancy would be a statutory ground for 
nullity, but it was not then.) His petition for nullity was 
refused for the reason that in the case of the contract of 
marriage it is sufficient that the consent be freely given; 
the contract is not null because the consent was given in 
error, or even through fraud. So far English law agreed with 
the Church. Would it agree equally that a marriage is null if 
the consent is made to depend upon a condition which is not 
fulfilled? Apparently the case has never come before an 
English court; but the judge in Moss v. Moss expressed his 
belief that the Church view was "the correct view of English 
law".

It would seem that in New York conditions, attached to the 
agreement to marry and not complied with, do not directly 
render the agreement void but can often be brought under the 
heading of fraud. A most interesting case is Mirizio v. 
Mirizio.[21] There had been a civil marriage, the woman 
consenting to this only on the man's promise of a Catholic 
ceremony to follow. She refused to cohabit unless the ceremony 
took place: he refused the ceremony: she sued for maintenance 
but did not get it. The Court, by majority, held that her 
refusal to have ordinary marriage relations disqualified her 
from claiming support. However good her reason for refusal 
might seem to her, in the eyes of the Court she was legally 
married. Had she applied for annulment on the ground that she 
had been induced by fraud to consent, she might have got it: 
but by applying for maintenance she asserted the validity of 
the marriage. In the eyes of the Church, as the next chapter 
will make clear, she was not married.


(iii) Simulated Consent

There is another form of defect of consent, where one of the 
parties goes through the form of marriage, with no intention 
whatever of getting married but simply to attain some object 
of his own which cannot be obtained otherwise.

The contract of marriage, because of its special importance to 
the individual and to society, differs in certain ways from 
other contracts. One is that in other contracts the law will 
sometimes presume that a man has done what he ought to have 
done. If he has so acted that the other party is entitled to 
expect his signature to an agreement, for example, the law may 
take his signature as written, even if it is not. This rule is 
not applied to marriage. In a letter of July 11, 1789,[22] Pope 
Pius VI says, "In a civil contract the absence of consent may, 
for certain reasons, be supplied by the law, but no human 
power can do this in the case of marriage."

Thus if one of the parties gives a fictitious external 
consent, then the marriage is invalid.

The Rota gave nullity in a case where the man wanted to have 
sexual relations with the woman for a while, and could not 
have them without pretending to marry her; and in another case 
where the man and woman went through the form of marriage 
solely in order to give a name to their child, and separated 
after the ceremony. (We have already considered cases where 
New York has had to decide upon marriages entered into only 
with the intention of "saving the woman's name", "protecting 
the child".) A New York court gave nullity where the man 
married the woman only to get funds for his education and 
never meant to live with her.

In an English case[23] nullity was decreed where a Hungarian 
woman had married a foreigner as the one way of getting out of 
Hungary. There have been several New York cases where 
foreigners married Americans solely to get into America. They 
are usually declared null, but in one case nullity was refused 
because intercourse had taken place with full knowledge on the 
American's part of what was in the other's mind.

(The situation mentioned above about marrying only to make the 
child legitimate, but with one new element, gave rise to an 
interesting decision by a New York court. In the case of 
Erickson v. Erickson,[24] the parties agreed to marry for the 
same purpose on the same terms; the woman applied for nullity 
on the ground that the man had violated the condition about no 
intercourse: the court refused her plea, holding that the 
condition was against public policy.)

In the nature of things this sort of case is rare--there are 
not so many things that cannot be obtained without a pretense 
of marriage--and where it does happen it is usually hard to 
prove. In the ten years before the publication of the first 
edition of this work (1920-1930), for instance, only eleven 
cases on this ground came before the Rota: of these only three 
were successful (and in one of these cases there were two 
other grounds). Of course, if a ceremony of marriage were gone 
through obviously as a piece of play-acting or pure fooling, 
it would not be valid.

At the risk of wearying readers it seems worth while to 
reiterate what is the very key of the institution of marriage: 
that the parties, by their consent, make it themselves. After 
the decree of nullity given in the Marlborough Case, it was 
reported in the papers--falsely, for all I know--that the 
American Episcopal bishop who officiated at the original 
ceremony in New York regarded the decision as an insult to 
himself. To hold such a view is completely to misunderstand 
the nature of the marriage contract. To criticize a piece of 
furniture is to criticize the carpenter who made it. But the 
officiating cleric does not make the marriage; the parties 
make it. The Marlborough Case would equally have resulted in a 
decree of nullity if the Pope himself had been the celebrant--
and indeed most of the nullity decrees granted by the Church 
are in respect of weddings solemnized by Catholic priests.

The consent of the parties will not make a marriage unless 
certain other conditions rightly imposed by the rightful 
authorities have been satisfied; but there can be no marriage 
without their consent.



ENDNOTES

1. Forster v. Forster (1923) 39 TLR 658; see also Park v. Park 
(1954), P. 89, 112, C.A.

2. "Acta Apostolicae Sedis," 1921, p. 54.

3. (1854) 1 K. & J. 4.

4. 174 L. T. 69.

5. Clevenger, "Annulment of Marriage," p. 29.

6. T. v. T. 197 AD 489, 189 NYS 860.

7. 1940 Misc 22 NYS 2d 827.

8. "Columbia Law Review" (XLVIII), p. 904, footnote.

9. Fratello v. Fratello, 118 Misc 584, 193 NY Supp 865.

10. "Acta Apostolicae Sedis," pp. 11-89.

11. "Acta Apostolicae Sedis," 1918, p. 70.

12. 1920. p. 373.

13. "Acta Apostolicae Sedis," 1918, p. 108.
14. "Acta Apostolicae Sedis," 1916, pp. 9-144.

15. 12 P.D. 21.

16. This rule must not be taken too literally; there are 
exceptions to it--for example concerning the effect or non-
effect of fraud.

17. [1896], P. 1.

18. 1918. p. 388.

19. R.D. 19-517.

20. [1897] P. 263.

21. 242 N-ST 74. 150 NE 605, 44 ALR 74.

22. Quoted in Smet. "Betrothment and Marriage."

23. H. v. H. 1954 P. 263.

24. 48 NY Supp 2d 588.



VII. FORM


BOTH State and Church insist on certain forms being observed: 
in both, there are some forms whose absence is illegal, but 
not fatal to the marriage, and some whose absence is fatal.


A. FORM REQUIRED BY THE CHURCH


(i) The Priest as witness

In the Catholic Church, the form is clearly laid down. since 
the Council of Trent so decided in 1563, a Catholic must be 
married before the parish priest (or his delegate) and two 
other witnesses; otherwise the marriage is clandestine, and 
therefore null. It must be remembered that the priest is only 
a witness; he does not "make" the marriage. He does not confer 
the sacrament; the parties confer the sacrament on each other. 
Therefore the only two people strictly necessary to the 
celebration are the man and woman concerned. Until 1563 no 
formalities were required, only the consent of the parties. 
Some sort of religious ceremony was usually required to make 
the marriage licit, but for validity it was enough that the 
man and woman should make clear that they were now taking, or 
had taken, each other as husband and wife. This, called in 
England common law marriage, was not forbidden by English law 
till 1753. It has been invalid in New York since 1933.

In a relationship of this sort, it is obvious that secrecy or 
semi-secrecy could give rise to problems. The Church now 
insists on the presence of witnesses--one of whom must be the 
bishop of the diocese, or else the parish priest or some 
priest delegated by him.

The chapter "Tametsi" of the Decrees of the Council of Trent, 
which set this out as the form required in the future, was not 
promulgated in Protestant countries, including England, so 
that Catholics could still contract marriages in these 
countries, valid in the eyes of the Church, by consent. This 
gave rise to an interchange of letters between Napoleon and 
Pope Pius VII. In 1803 Napoleon's brother Jerome, aged 
nineteen, had married Eliza Patterson in Baltimore. The 
Bonaparte family made a double effort to get a decree of 
nullity. Jerome's mother protested against the marriage, 
claiming that her son, being under twenty-one, could not 
validly marry without her consent: but the Church does not 
require the consent of parents. Napoleon asked the Pope to 
annul the marriage, one of the grounds he urged being that the 
parish priest was not at the wedding: the Pope replied that 
the decree "Tametsi" had not been promulgated in Baltimore, 
and that it was beyond his power to dissolve a marriage that 
was certainly valid. (The episcopal court of Paris made no 
such difficulty!)

But from 1908 the "Ne Temere" decree, whose rules are nearly, 
though not quite, identical with those of "Tametsi," removed 
this exemption from English-speaking countries and most 
others. The few exceptions have since been abrogated, so that 
the requirement of marriage before the parish priest and two 
witnesses now extends to all Catholics of the Latin rite (save 
where it is impossible, as below). Thus it does not apply to 
the Uniates (except certain Ruthenians). And it does not apply 
to non-Catholics. It does apply to every marriage in which at 
least one of the parties is a Catholic.

The priest is only a witness and not one of the principals. If 
it is not possible to have a priest, and the impossibility is 
likely to continue for a month, or if there is danger of 
death, then the marriage may be performed without a priest. 
Otherwise this form is obligatory on Catholics: any Catholic 
who tries to marry not observing this rule simply is not 
married.

In technical language, his union is null because of 
clandestinity. To modern ears it is a curious word to use 
(English law has it too). A Catholic film star, let us say, 
marries before a Justice of the Peace. The street is blocked 
with sightseers, every newspaper in the country has its 
reporters there, the newsreel cameras do their busy work. In 
due course the actor applies for and gets a decree of nullity 
from the Church on the ground of clandestinity--secrecy, 
hiddenness. The meaning, of course, is that the ceremony was 
not observed by the one witness required for a Catholic 
marriage, the priest; it was hidden from the face of the 
Church.

The most famous case on clandestinity is the so-called divorce 
of Napoleon