Unhappy Marriage, Invalid Marriage?

The reasons behind the rise in the number of declarations of nullity over the past half-century are manifold: a wave of antinomianism followed the Second Vatican Council, leading to laxity in the application of canon law, and a false sense of mercy—which assumes that affirmative decrees are more “pastoral”—continues to influence legal proceedings. However, there is a more fundamental problem that cannot be rectified by simply providing better formation to canonists or more strictly following procedural law. The very definition of marriage has undergone a substantial change with the promulgation of the 1983 Code of Canon Law, and this—in conjunction with the introduction of newly-worded grounds of nullity—ultimately makes it difficult to defend the validity of a marriage when it is unhappy, leading to an epidemic of de facto Catholic divorces.

The 1917 Code of Canon Law defined marriage as a contract (c. 1012 §1) established by a man and a woman through exchanging the exclusive and perpetual right over the body as regards the act suitable for the generation of offspring (c. 1081 §2). This is reinforced by the specification that the primary end of marriage is the procreation and education of offspring, and that the secondary end is the mutual good of spouses and the lawful remedy for concupiscence (c. 1013 §1). The 1983 Code, by contrast, redefines marriage as a “covenant by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring” (c. 1055 §1). In addition, canon 1057 §2 defines matrimonial consent as “an act of the will by which a man and a woman mutually give and accept each other through an irrevocable covenant in order to establish marriage.”

While it is not inaccurate to use the word “covenant” if it is interpreted to mean a solemn contract, these two canons contribute to obscuring the minimum requirements for validity. In reality, the “partnership of the whole of life” that canon 1055 §1 speaks of is the result of the marriage contract and does not constitute the actual object of consent. The object itself consists of exchanging the primary right over the body, as mentioned earlier, and the relationship between the two persons and the secondary rights to “cohabitation and regular sharing of bed and table”¹ are merely consequences of the contract. The partnership, and thus, the secondary rights, are now regarded as essential for consent, and canon 1057 §2 reinforces this error by defining consent as the giving and accepting of each other, which implies that validity is contingent upon the parties’ ability to live together peaceably. Certainly, they should strive to “mutually give and accept each other” to have a happy marriage, but this is a matter quite distinct from validity, which is not affected by the exclusion of secondary rights.

The destruction of the distinction between primary and secondary rights sets the stage for the now-infamous canon 1095, which states that “those who suffer from a lack of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted” (2°) or “who are not able to assume the essential obligations of marriage for causes of a psychic nature” (3°) cannot validly consent to marriage. These terms are vague and previously unknown in canonical tradition, and despite Raymond Cardinal Burke’s call for “lack of discretion of judgment” to be interpreted simply as “insanity,”² most tribunals have continued to invoke alleged psychological immaturity as a ground of nullity. However, the root of the problem does not lie with the new—or newly-worded, if one subscribes to Cardinal Burke’s interpretation—grounds of nullity, but once again, relates back to the essential definition of marriage. Having established new definitions of marriage and consent with canons 1055 and 1057, tribunals can now abuse canon 1095, specifically 2°, to dubiously declare null any unhappy marriage.

The term “lack of discretion of judgment” appears to have been borrowed from an equivalent concept in penal law and applied—rather unsatisfactorily—to marriage law. There is a certain parallel between the ability to commit a canonical delict and the ability to enter into the marriage contract because both of these acts require the use of reason. Those who habitually lack the use of reason are equivalent to infants in law (c. 99) and considered not responsible for themselves; thus, it makes sense for canon 1095 1° to declare that “those who lack the sufficient use of reason” are “incapable of contracting marriage.” Likewise, canon 1322 states that those “who habitually lack the use of reason are considered to be incapable of a delict.” Such persons cannot be subject to a penalty when they have violated a law or precept (c. 1323 6°), while those who had the imperfect use of reason or who lacked it based on drunkenness or mental disturbance can only be subject to a tempered penalty or a penance (c. 1324 §1, 1° and 2°).

Canon 1095 1° corresponds to the former scenario, while canon 1095 2° is equivalent to the latter, in which case there is a “lack of discretion of judgment.” But while it is logical to draw a certain parallel between penal law and marriage law, this is where the similarities end. Poor judgment may render someone less culpable for violating a law or precept, but matrimonial consent cannot be given to a greater or lesser degree. Now that secondary rights are considered to affect validity, however, it becomes possible to argue that one of the parties gave “imperfect” consent by excluding a secondary right, rendering the marriage invalid. A case can now be made on the basis of psychological problems, a lack of maturity, or poor judgment that a man was unable to consent to marriage due to an inability to live peaceably with his wife, causing problems in the relationship and the sharing of bed and board. There is now considered to be no marriage when one party is unable or unwilling to provide some kind of mutual help to the other insofar as the secondary rights are concerned, even if there is nothing preventing him or her from satisfying the marital debt itself, which is the primary right and duty of marriage.

While canon 1095 is the most egregious example, other grounds of nullity can also become problematic when interpreted in light of the false theology of canons 1055 and 1057. For example, canon 1098 states that if one party deceived the other by malice in order to obtain consent, then the marriage is null if this concerns “some quality…which by its very nature can gravely disturb the partnership of conjugal life.” The word “conjugal” specifically refers to the sexual union; thus, canon 1098 would apply if, for example, one maliciously hid his sterility from the other (cf. c. 1084 §3). However, canon 1098 does not simply speak of “conjugal life,” but of the “partnership of conjugal life,” which may be interpreted to refer to the relationship between the couple. Thus, more qualities can be considered: a drinking problem, a gambling addiction, or even a generally unpleasant temperament that renders a person difficult to live with.

Almost anything that bothers one party can be falsely construed as a potentially invalidating factor, and if it can be demonstrated that there was a malicious effort to hide this before marriage, then a declaration of nullity can be considered. Common sense shows that there is a difference between hiding one’s infertility and hiding one’s gambling addiction from a prospective spouse, but the conflation of these two is only the logical result of inaccurately defining marital consent as the giving of oneself in a relationship. A woman who would have never consented to a relationship with a man if she had known of his gambling can argue that her consent was defective if he maliciously hid this to obtain consent. However, none of this affects whether primary right would have been exchanged, unlike a case in which a woman knows that she would have never given the man the right over her body had she been aware of his infertility beforehand.

Due to these theological problems, it is all too easy for tribunals nowadays to equate an unhappy marriage with an invalid one, as though no one who possesses character flaws can be capable of marriage—and this is the primary driving force behind the outlandish number of declarations of nullity granted each year. Many in the Church are coming to understand the damage that canon 1095 has caused, and some have—in line with Cardinal Burke’s scholarship—opted for a stricter interpretation of the law. But while these are encouraging signs, it remains that the nullity crisis cannot be solved simply by demanding that the law be properly interpreted and strictly followed, if it is the law itself which is defective and enabling these de facto “Catholic divorces.” Ultimately, the solution lies in a return to sound theology on marriage, along with a restoration of the fontes of canon law and a proper sense of respect for canonical tradition.

1. Pius XII, Acta Apostolicae Sedis (1944), 172-200.

2. R. L. Burke, “Lack of Discretion of Judgment: Canonical Doctrine and Legislation.” The Jurist, 45 (1985).