I am a Parish Priest and I am sometimes presented with problems of couples—claiming irreconcilable difference—who “in conscience” think that their marriage was invalid from the start. At times their recounting of the circumstances are so compelling, that even I am tempted to agree with them, more so if either spouse has already moved on to a new union, which has subsequently born fruit in the form of a new and happy family. How do I resolve this dilemma?
A. Notion and point of controversy
Your dilemma in fact illustrates one of the hottest issues in Matrimonial Law Canon in the last two decades of the 20th Century, so brilliantly resolved by John Paul II in his annual address to the Roman Rota on 29.I. 2004.
Can. 1060 of the Code of Canon Law states: 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. Though the canon clearly establishes the presumption of validity of a canonically celebrated marriage, the continued applica¬bility of such a juridic presumption has been contested.
The problem stems in part from the very redaction of c.1060, in which the causal particle “consequently” (quare in the original Latin) seems to suggests that the reason for the presumption of validity of a marriage (duly celebrated or peacefully accepted and consequently placed in doubt) is the favor iuris (presumption of law) enjoyed by mar¬riage. Thus, this doctrine has been attacked from the point of view of the validity of the favor matrimonii, i.e., the favor iuris enjoyed by marriage itself.
B. clarifying Can. 1060: Removing the Red Herring.
Before addressing the attacks against the favor matrimonii itself, it is good to remove the red herring, by making the conceptual distinction between the two parts of c.1060:
1st Part: Marriage enjoys the favor of the law. This is the canonical declaration of the favor matrimonii.
2nd Part: When doubt exists, the validity of a marriage is to be upheld until the contrary is proven. This actually constitutes the canonical declaration of the presumption of validity of a marriage duly celebrated canonically or hitherto peacefully accepted.
It is important to realize that the foundation of the presumption of validity of a duly celebrated canonical marriage is not the favor matrimonii. Rather, it is simply an application to the case of canonical marriage of a general presumption that constitutes a principle in all juridic systems: The presumption of validity of a juridic act whose external (juridically relevant) elements have been verified correct, as expressed in c.124, §2: A juridic act correctly placed with respect to its external elements is presumed to be valid.
This is what is know in Law as a juridic presumption—i.e., a link established by law between a certain fact (the external elements of given juridic reality), which is called the factical index or basis of the presumption, and that juridic reality, which is called the presumed fact.
On the other hand, as John Paul IIin the aforementioned address to the Roman Rota on 29.I.2004points out “this presumption cannot be interpreted as the mere protection of appearances or of the status quo as such, since the possibility of contesting the act is also provided for, within reasonable limits. Rather, what appears outwardly to be correctly placed, to the extent that it is lawful, deserves initially to be considered valid and, consequently, to be upheld by law since this external reference point is the only one which the legal system realistically provides to discern situations which must be safeguarded. To hypothesize the opposite, that is, the obligation to provide positive proof of the validity of the respective acts, would mean exposing the subjects to a demand that would be almost impossible to achieve.”
C. Arguments against the Favor Matrimonii
John Paul II, in the aforementioned address, outlined the attacks against the principles enunciated by c.1060 as follows:
1. Skepticism vs. Validity of Consent at Present Times. To some people, [the favor matrimonii] seems to be anchored in social and cultural situations of the past, in which the request to marry in accordance with canon law had normally implied that those engaged to be married understood and accepted the true nature of marriage. In the crisis that marks the institution of marriage todaythose people holdthe very validity of the consent may often be jeopard¬ized, due to various forms of incapacity or to the absence of the essential properties. Thus, these critics wonder if it might not be correct to presume the invalidity of the marriage contracted rather than its validity. In this perspective, the favor matrimonii, they say, should give way to the favor personae [favoring whatever is good for the spouses], the favor veritatis subiecti [favoring whatever is subjectively good for the spouses] or the favor libertatis [respecting the freedom of the spouses to opt out of a marriage bond].
2. Skepticism vs. Process of Ascertaining the Validity of a Marriage. Often the real problem is not so much the presumption in words as the overall vision of a marriage itself; hence, the process to ascertain the validity of its celebration is put in doubt. In this regard, a more or less open scepticism has been inferred as to the human ability to recognize the truth about the validity of a marriage. In this area too, a renewed confidence in human reason is necessary with regard both to the essential aspects of marriage and to the specific circumstances of each union.
3. Failure of Marriage Argument. Finally is the argument which holds that the failure of conjugal life implies the invalidity of the marriage. Unfortunately, this erroneous assertion is sometimes so forceful as to become a generalized prejudice that leads people to seek grounds for nullity as a merely formal justification of a pronouncement that is actually based on the empirical factor of matrimonial failure. This unjust formalism of those who are opposed to the traditional favor matrimonii can lead them to forget that, in accordance with human experience marked by sin, even a valid marriage can fail because of the spouses' own misuse of freedom.
D. logical and conceptual flaws of the arguments against the Favor Matrimonii
After clarifying the real basis of the presumptio iuris for the validity of a duly-celebrated canonical marriage, we can reduce the objections to the favor matrimonii to two:
1. Favor matrimonii vs. favor personae seu favor veritatis subiecti. The confrontation that some authors make between the favor matrimonii and the so-called favor personae or favor veritatis subiecti belies a reductive vision of the favor matrimonii, understood almost exclusively in its abstract or institutional sense, disconnected from any concrete marriage, which is always founded on the truth of an authentic marital consent legitimately manifested between two capable persons. We have to recall that the favor matrimonii is simply the juridical protection of a very personal rightthe ius connubii of the spousesand the truth of a very real and concrete marriage.
At the same time, such objection often belies an equally narrow view of the so-called favor personae or favor veritatis subiecti which often refers only to the person of the spouse or spouses who are pretending the declaration of nullity of a marriage, disregarding those who hold its validity or who may be interested in its eventual convalidation.
2. Favor matrimonii vs. favor libertatis. More absurd still is the contraposition made by other authors between the favor iuris enjoyed by marriage and an erroneous application of the general principle in dubio pro libertate, according to which one must not burden anyone with an obligation unless such obligation is certain. However, such objectors forget that the principle in dubio pro libertate operates only when there is no opposing presumption based on a certain fact, such as the common good which is the case in the favor matrimonii.
On the other hand, what they claim as the right to freedom of the spouses almost always refers to the futurei.e., a liberation from past commitmentsdisregarding the obvious fact that such commitments were made in the exercise of their own freedom in the first place. It is interesting to understand favor matrimonii precisely from the point of view of the freedom of the spousesi.e., the protection of their ius connubii which had already been exercised (and exhausted) when they validly contracted marriage.
In the end we have to conclude with John Paul II that “the problem concerns the concept of marriage seen in a global vision of reality. The essential dimension of the justness of marriage, which is based on an intrinsically juridical reality, is replaced by empirical viewpoints of a sociological, psychological, etc. kind, as well as by various forms of juridical positivism. Without in any way belittling the valid contributions of sociology, psychology or psychiatry, it cannot be forgotten that an authentically juridical consideration of marriage requires a metaphysical vision of the human person and of the conjugal relationship. Without this ontological foundation the institution of marriage becomes merely an extrinsic superstructure, the result of the Law and of social conditioning, which limits the freedom of the person to fulfill him or herself.
It is necessary instead to rediscover the truth, goodness and beauty of the marriage institution. Since it is the work of God himself, through human nature and the freedom of consent of the engaged couple, marriage remains an indissoluble personal reality, a bond of justice and love, linked from eternity to the plan of salvation and raised in the fullness of time to the dignity of a Christian sacrament. It is this reality that the Church and the world must encourage! This is the true favor matrimonii!”
Finally, as to the concrete problem at hand, we have to remind everyone that nobody can decide unilaterally—neither can a couple agree on their own—that a marriage contracted canonically suffers invalidity on whatever ground. It is for the competent ecclesiastical tribunal, after all the parties have been listened to, to judge the case and declare the validity or invalidity of the marriage.