We are grown up children of a father who abandoned us years ago and started another family. Now our father is sickly and often says his end is near but remains with his second family because (we suppose) the children are much younger there and therefore need a father more than we do. Which family has a right to claim his body when he dies? Is this the decision of those left behind or the deceased’s, assuming that he has expressed his desire on the matter in a last will and testament? Not that we want him to die so soon, but we believe it is wise to foresee and to prevent an embarrassing situation should he die with the second family.
Earlier, our mother had offered to file for annulment but our father refused, so what are they now when he is with another woman? Are the children of the second union legitimate by Church standards?
Sorry we ask so many questions, but we would like to be guided on what is proper to do. Please interpret the Canon Law for us; we are not very familiar with terms and we find the Code of Canon Law hard to read. Thank you, Father.
Civil Law Prevails
Here we have another case of Civil Law prevailing over Canon Law, since the disposition of the body of a deceased is a matter of the temporal order and temporal common good. Without detriment to a different judgment by the competent civil authority or a different disposition by Civil Law, the normal thing would be that the disposition of the body of a deceased person follows what that person had laid down in his Last Will and Testament. In any case, this is a matter best consulted with a civil lawyer.
Nevertheless, in what is relevant to Canon Law in the present case and consultation, the following can be said.
Presumption of Validity of a Marriage Duly Celebrated
Can. 1060 — Marriage enjoys the favor of the law; consequently, when a doubt exists the validity of a marriage is to be upheld until the contrary is proven.
Unless the invalidity of the first and original marriage in the present case is definitively declared by competent ecclesiastical tribunals after due process—i.e., after concurring sentences by the tribunal of the first and second instances—the original couple remain husband and wife in the eyes of God and of the Church.
Thus, any posterior marriage would be invalid by reason of the impediment of an existing marriage bond (c.1085). In other words, in the present case, a second canonical marriage could not have been validly celebrated (although presumably a civil marriage could have been, subsequent to a civil declaration of marriage nullity or civil annulment of the first and original marriage). This is clearly laid down by the Code of Canon Law:
Can. 1085 — §1. A person who is held to the bond of a prior marriage, even if it has not been consummated, invalidly attempts (a posterior) marriage.
§2. Even if the prior marriage is invalid or dissolved for any reason whatsoever, it is not on that account permitted to contract another before the nullity or the dissolution of the prior marriage has been legitimately and certainly established.
What this means is that only after the first and original marriage has been duly declared invalid by the competent ecclesiastical tribunals—i.e., by concurring sentences of a Tribunal of First Instance and an Appellate Tribunal—can a subsequent canonical marriage take place validly.
Conclusion: Illegitimacy of the Children of the Second Union
Since there would have been no valid canonical marriage to speak of in the second union, the children born therefrom would be absolutely illegitimate by Church standards, being children born out of wedlock.
As a final word, however, it would be good to keep in mind that the children of the second union—though illegitimate—have rights, both as persons and as natural children of their father: rights however that cannot be equiparated with the rights of the legitimate children, without detriment to the reality and sanctity of canonical marriage itself.