Marriage law of the Catholic Church

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The marriage law of the Catholic Church believes that marriage is one of God willed natural institution ( institution 's) between a man and a woman. Marriage is for teaching of the Catholic Church and the Orthodox churches one of Jesus Christ employed sacrament .

Basics of ecclesiastical marriage law

The church wedding

Marriage in the Church Doctrine

In the Council of Trent (1545–1563), in response to the Reformation, the sacramentality of marriage and the exclusive legal competence of the Church for marriage are confirmed. The essence of marriage is not dogmatically deepened in the Tridentinum . More important for the council was the introduction of the ecclesiastical formal requirement as a condition of the validity of Christian marriages, combined with the prohibition of secret marriages and the introduction of ecclesiastical baptismal and trauma records ( church books ).

It was not until the 19th century that the debate about liberalism and secularism led to increased theological reflection on the nature of marriage. Statements made by teachers about marriage can be found in the encyclicals Arcanum divinae sapientiae (1880) and in Casti connubii (1930).

The Second Vatican Council deals with marriage in particular in the Pastoral Constitution Gaudium et Spes , nos. 47–51. In a further development of the previous teaching, the Second Vatican Council sets new accents. Point 48 emphasizes the cohabitation of the spouses and includes it in the definition of marriage. Furthermore, the marital partner relationship is emphasized here as a way of meeting Christ and "as the personal concretion of the New Covenant".

The CIC regulates the material marriage law in Book IV of the Sanctification Service of the Church , Title VII Marriage in Canons 1085–1165. The formal marriage law (ecclesiastical marriage process law) is generally regulated in the VII. Book Processes and there specifically in Title III Special Types of Proceedings , Title I Marriage Processes in the canons 1671–1707. The substantive marriage law is regulated in the CIC as follows:

  • 0) General basic norms (can. 1055-1062)
  • 1) Pastoral care and preparation for marriage (can. 1063-1072)
  • 2) The dividing obstacles in general (can. 1073-1082)
  • 3) The dividing obstacles in detail (can. 1083-1094)
  • 4) Marital consensus (can. 1095–1107)
  • 5) Form of marriage (can. 1108–1123)
  • 6) Mixed marriages (can. 1124–1129)
  • 7) Secret marriage (can. 1130–1133)
  • 8) Effects of marriage (can. 1134–1140)
  • 9) Separation of the spouses (can. 1141–1155)
  • 10) Marriage Validation (1156–1165)

Insofar as this is necessary as a preliminary question to assess the possibility of a marriage or the effectiveness of a marriage of a Catholic, the Roman Catholic Church also has to assess the validity of any actions between non-baptized or between non-Catholics who are fundamentally not subject to ecclesiastical jurisdiction. In the post-conciliar ecclesiastical marriage legislation, the formal requirement of Catholic canon law for non-Catholic Christians was no longer required as a criterion for the validity of the marriage. Until 2010, Catholics who had left the Catholic Church were also exempt from the formal requirement. The latter led to very complicated case constellations and was therefore in the Motu proprio Omnium in mentem of Pope Benedict XVI. abolished again.

The right of the Catholic Church to regulate marriage

The regulatory power of the Catholic Church

Because of the sacramental character of marriage, the Catholic Church prescribes the conditions for a valid marriage for its believers. A state authority to regulate is not recognized. From the point of view of the Catholic Church, state civil marriage is not an effective marriage for Catholic Christians who fall under its legislative competence, unless, in exceptional cases, a purely civil marriage is permitted by the Church. The regulation of the purely civil effects of marriage, which is regarded as being within the jurisdiction of secular power, is something else.

This is reflected in Canon 1059:

"The marriage of Catholics, even if only one partner is Catholic, is based not only on divine law, but also on church law, without prejudice to the jurisdiction of secular authority with regard to the purely civil effects of this marriage."

According to the teaching of the Church, a state marriage is not an effective marriage for Catholics. Without exception, this only comes about through the dispensing of the marriage sacrament. On the other hand, there may be exceptions ( dispensation ) from the formal obligation of church weddings , but in this case the marriage before the registrar (or the evangelical clergyman) is considered sacramental.

Regulations between the Catholic Church and the respective state

The canon law of the Catholic Church regulates the prerequisites and the legal consequences of marriage insofar as it is relevant for Catholics. State marriage law is not recognized as binding by the church for people who are subject to papal jurisdiction. The relationship between church and state marriage law is regulated in more detail within the framework of contracts ( concordats ) between the Catholic Church (the Holy See ) and the states.

Bismarck sat in the church struggle in the German Reich , the civil marriage by. The chronological sequence of civil and church weddings was regulated in Article 26 between the Holy See and the German Reich in the State Church Treaty , known as the Reich Concordat , concluded in 1933 . Thereafter, until December 31, 2008, spouses were forbidden to marry in church without having previously "married" in a civil registry office. By violating the prohibition of religious pre-marriage , they had up to that point constituted an administrative offense. The regulations from the Reich Concordat continue to exist. The German Bishops' Conference stipulates that spouses are encouraged to ensure that their status is regulated by the state. The German bishops have issued regulations for church weddings without civil weddings .

Details:

Nature and characteristics of marriage

Marriage as an institution under natural law

The Catholic Church regards marriage as an institution resulting from human nature, the nature and characteristics of which result from the personal love between man and woman and their fundamental openness to children.

The Catholic Church regards the fact that marriage is only possible and fundamentally indissoluble between man and woman as a consequence of human nature created by God.

Marriage as a contract sui generis and a union of the spouses

In the case of marriage, a distinction has to be made between the origin (the marriage contract ) and the resulting legal relationship between the spouses (the marriage bond ). The marriage is established by a contract between the spouses. This contract is called marriage consensus ( contractus matrimonialis , can. 1055 § 2). In the Church Code of 1917 (CIC 1917) the "contract model" prevailed. "Since this purely legal category was recognized as too narrow and not entirely applicable, the marriage was called a contractus sui generis (contract of its own kind)."

Under the influence of the Second Vatican Council, marriage is now also a covenant in the 1983 Church Code (CIC 1983) ( marriage covenant , matrimoniale foedus , can. § 1055 § 1). In this way, on the one hand, the personal dimension of marriage and, on the other hand, "the image of marriage for the covenant of God with man (New Testament: for the covenant of Christ with the Church)" is emphasized.

Marriage as a sacrament

According to the teaching of the Catholic Church, marriage between the baptized is a sacrament . According to can. 1055 § 1 the "marriage covenant ... between the baptized by Christ the Lord was raised to the dignity of a sacrament" and in can. 1055 § 2 states “Therefore there can be no valid marriage contract between the baptized without it being a sacrament at the same time.” This was expressly confirmed at the Council of Trent as a reaction to the opposing views of the reformers. Therefore, the marriages of baptized non-Catholics are also considered sacramental.

The giver of the sacrament of marriage

According to the prevailing view in the Catholic Church, the donors of the marriage sacrament are the spouses themselves.

However, the question of who givers the sacrament of marriage is controversial and the opinion is as follows:

(A) There is a human giver of the sacrament of marriage.
(AI) The married couple give themselves the sacrament of marriage.
(AI 1) The priest or deacon is only a qualified witness.
(AI 2) The priestly / diaconal participation is a condition of validity.
(A II) The priest or deacon bestows the sacrament of marriage.
(B) There is no human giver of marriage: Christ alone makes the marriage covenant a sacrament.

According to the prevailing view in the Catholic Church, the bride and groom themselves are the dispensers of the sacrament of marriage (AI 1). The view AI 2 is only sporadically, the view A II was in the older literature and the view (B) is - probably only sporadically - represented by Lüdicke, whereby it should be noted that ultimately Christ is always considered to be the giver of the sacraments.

According to the prevailing opinion in the Orthodox Church (A II) applies, that is, the priest or the bishop is the giver of the sacrament of marriage.

The sacramentality of marriage in problematic cases

According to the Catholic understanding, every marriage between the baptized is a sacrament, even if they are evangelical or have left the Catholic Church and also if the spouses do not understand this according to their own understanding.

If, with the prevailing doctrine, one sees the spouses themselves as the dispensers of the marriage sacrament, then the general doctrine of the sacraments, for the effectiveness of the administration of a sacrament, requires the intention to do as the church does .

Pope John Paul II stated in his 1981 encyclical Familiaris consortio :

"68. […] The sacrament of marriage has this special feature over the others: As a sacrament it comprises a reality that is already present in the order of creation; it is the same marriage covenant that the Creator made “in the beginning”. If a man and a woman therefore decide to enter into a marriage with each other in the sense of this plan of creation, that is, to commit themselves to lifelong love and unconditional fidelity for their entire life through their irrevocable marriage promise, then in this decision is actually if also not quite consciously, to contain an attitude of deep obedience to the will of God that could not exist without his grace. You are therefore already on a real path of salvation, which the celebration of the sacrament and the immediate preparation for it can complement and bring to its goal, since the right intention is there. "

"[...] The mere fact that the request for a church wedding also includes social motives does not justify a possible rejection on the part of the pastors. In addition, as the Second Vatican Council teaches, the sacraments, through liturgical words and rites, nourish and strengthen faith, that faith to which the bride and groom already strive through their right intention, which will certainly find further help and support in Christ's grace . "

This is applied to all the baptized: Neither the lack of knowledge of sacramentality, nor a lack of churchliness, nor a lack of faith, but only the formal positive rejection of the sacramentality of marriage by a non-Catholic baptized person excludes sacramentality. It follows from this that only in this case a reason for ineffectiveness according to can. 1101 § 2 (marriage nullity) is present.

The goals of marriage

Canon 1013 § 1 of the CIC of 1917 named the procreation and upbringing of offspring as the primary purpose of marriage and “mutual help and remedy against desire” as the secondary purpose. The new, more personalistic perspective since the Second Vatican Council at the latest finds its expression in the CIC of 1983 in a new emphasis. The welfare of the spouses and the procreation and upbringing of offspring are cited without expressly specifying a hierarchical relationship (can. 1055 § 1); the welfare of the spouses is mentioned first.

The characteristics of marriage

In can. 1056 says: “The essential characteristics of marriage are unity and indissolubility, which in Christian marriage acquire a special firmness with regard to the sacrament.” Unity and indissolubility are considered essential characteristics of every marriage, not just marriage between Catholics.

Unity of marriage means that a marriage can only exist between one man and one woman at a time. This contradicts both the simultaneous (synchronous) as well as the temporally subsequent (successive) double or multiple marriage.

The indissolubility of marriage concerns the legal marriage bond of the spouses. This is to be distinguished from the actual - temporary or permanent - separation with a permanent marriage bond (cann. 1151–1155). Marriage nullity , including marriage annulment, must be distinguished from the legal dissolution of the marriage bond .

According to can. 1141 absolutely only in the case of a valid, consummated and sacramental marriage. This means that a valid marriage can also be dissolved if it was either not consummated or, in exceptional cases, in favor of the faith (if a partner converts) if it is a non-sacramental marriage between the unbaptized, even if it was consummated. Unbaptized divorced persons cannot enter into a new valid marriage with a Catholic partner because they are bound by the nature of the marriage through the civil marriage.

Preparation for marriage

The engagement

According to can. 1062 § 2, as in national law, due to a betrothal, an action can be taken not to get married, but rather to claim damages. Details of the engagement are based on can. 1062 § 1 according to the particular law of the bishops' conferences, taking into account local and worldly circumstances.

Pastoral care and preparation for marriage

According to can. 1063–1072 to be prepared for marriage through pastoral care. Catholics who have not yet received the Sacrament of Confirmation should be fired before they are married (can. 1065 § 1). The bride and groom are strongly advised to go to confession and communion (can. 1065 § 2).

Before entering into a marriage it must be certain that nothing stands in the way of a valid and permitted marriage (can. 1066). For this purpose, a bridal exam (can. 1067) is carried out. The result of the bridal exam is recorded in Germany in the marriage preparation protocol . Any obstacles to marriage must be communicated by the faithful (can. 1069).

In certain cases the marriage requires the prior permission of the local ordinary ( diocesan bishop ). In can. 1071 it says:

"Apart from emergencies, nobody is allowed to assist without the permission of the local ordinary:
1 ° at the marriage of the homeless;
2 ° in the event of a marriage that cannot be recognized or undertaken in accordance with secular law;
3 ° at the marriage of a person who has natural obligations towards another partner or towards children from a previous marriage;
4 ° at the marriage of those who have clearly apostate from the Catholic faith;
5 ° in the event of the marriage of a person who has been given a penalty ;
6 ° in the event of the marriage of a minor who wants to marry without the knowledge or against the justified objection of the parents;
7 ° at the time of marriage, which according to can. 1105 is to be carried out by a representative.
The local ordinary may only give permission to assist in the marriage of a person who has clearly apostate from the Catholic faith if the prescriptions of can. 1125 are fulfilled accordingly. "

According to can. In 1072 "pastors have to be concerned about preventing young people from entering into marriage as long as they have not reached the age at which marriage is customary according to national custom."

The coming about of the marriage

The marriage consensus

Marriage necessarily presupposes the mutually expressed will to want to enter into a marriage (marriage consensus): "The marriage consensus is the act of will through which man and woman give and accept one another in an irrevocable covenant in order to establish a marriage." (Canon 1057 § 1.)

Inability to marry

According to can. 1058 anyone can marry who is not legally prevented from doing so.

Can. 1095 regulates aspects of the ability to marry. One also speaks of psychologically conditioned ability to marry . Conceptually and systematically, can. 1,095 inaccurate since he firstly the question of the legal transaction accountability ( marriage volitional ) and on the other the psychological possibility of marriage guidance (double leadership ability) governs.

The ability to marry is in Can. 1095 regulated as follows:

"Incapable of entering into a marriage are those:
1 / who do not have a sufficient use of reason;
2 / who suffer from a serious lack of judgment with regard to the essential marital rights and duties which are mutually transferable and to be assumed. "

Decisiveness of the inner will

In contrast to the legal business doctrine of the German Civil Code (BGB), according to church law it is not the objective declaration that suggests a certain legal transaction will based on the recipient horizon, but the real will of the parties. This leads to the possibility that, unlike in accordance with Section 116 of the German Civil Code, a secret reservation regarding certain contents of the marriage leads to the ineffectiveness, i.e. the nullity of the marriage.

According to Can. 1101 § 1, however, the presumption of a valid will to enter into marriage applies:

"It is believed that the internal marriage consensus corresponds to the words or signs used in the marriage."

Lack of consensus

A lack of consensus can lead to an invalid marriage. They are set out in cann. 1096-1103 regulated. The details are shown under Marriage Consensus .

Form of explanation

The marriage is concluded orally, if necessary by means of equivalent signs (Can. 1104 § 2). The help of an interpreter is given in Can. 1106 regulated.

Possibility of representation

According to Can. 1104 § 1 applies: "For a valid conclusion of a marriage it is necessary that the couple are present at the same time, either in person or through a representative." The more detailed requirements for a marriage contract conclusion by a representative are in Can. 1105 executed.

Principle of the public

The marriage is usually done in public. This may only be waived in emergencies (see below) or "for a serious and urgent reason" (can. 1130), whereby the secret marriage must also take place with the assistance of a church representative in the presence of witnesses (can. 1131).

The incapacity for marriage

Newly accepted into the CIC in 1983 is Can. 1095 the psychologically conditioned inability to marry in the narrower sense, also called inability to marry .

The corresponding regulation is:

"Incapable of entering into a marriage are those: [...]
3 ° who are unable to take on essential marriage obligations due to their psychological nature. "

The regulation is based on the general principle that a (here: subjectively) impossible declaration of intent is ineffective. Since marriage law is not about responsibility or compensation, this principle - unlike in the case of the BGB - is applied without restriction.

Obstacles to marriage

Obstacles to marriage prevent a marriage from taking place in accordance with canonical law, regardless of the will of those involved and of compliance with the formal requirements of the marriage.

They are in can. 1083-1094 regulated in more detail.

Reservation of permission for mixed marriages

The CIC distinguishes the mixed marriage between the baptized and the mixed marriage of a Catholic with an unbaptized.

Mixed marriage between Catholics and the baptized

Mixed marriages are only permitted with express permission. This follows from Can. 1124:

“The marriage between two baptized persons, one of whom has been baptized in the Catholic Church or has been accepted into it after baptism, but the other partner belongs to a church or ecclesial community that is not in full communion with the Catholic Church prohibited without the express permission of the competent authority. "

The requirements for a permit arise from Can. 1125:

“The local ordinary can grant such permission when there is a just and reasonable cause; He may only grant it if the following conditions are met:
1 / the Catholic partner must declare himself ready to remove the dangers of apostasy and he must make a sincere promise to do everything possible to ensure that all his children in the Catholic Church to be baptized and brought up;
2 ° of these promises which the Catholic partner has to make, the other partner is to be informed in good time so that it is certain that he really knows about the promise and the commitment of the Catholic partner;
3 ° both partners are to be shown the purposes and essential characteristics of the marriage, which neither of the two parties may exclude. "

According to Can. In 1126 the Bishops' Conference has to regulate the modalities of the necessary declarations in detail.

Mixed marriage between Catholics and the unbaptized

The marriage of an unbaptized is according to Can. 1086 § 1 an impediment to marriage:

"A marriage between two persons, one of whom was baptized in or accepted into the Catholic Church, but the other is unbaptized, is invalid."

However, one can dispense from this obstacle under the same conditions as in the case of mixed marriage between a Catholic and a baptized person:

“There may only be dispensation from this obstacle if the conditions of cann. 1125 and 1126 are fulfilled. "

The presumption rule of Can. 1086 § 3 to be observed:

“If at the time of the marriage a partner was generally considered to be baptized, or if his baptism was in doubt, then according to can. 1060 to presume the validity of the marriage until the certain proof is produced that one partner is baptized, but the other is not baptized. "

The form of marriage

General

Compliance with the form of marriage prescribed by church law (canonical form) is compulsory for a Catholic who has not apostoned from the church through a formal act, even if the other partner is not a Catholic or a non-baptized (can. 1059, 1117).

Since the Council of Trent , in order to avoid secret marriages - about which the husband in particular no longer wants to know - the duty of the bride and groom to marry with the assistance of a representative of the Catholic Church has been prescribed (can. 1108 § 1) (canonical marriage ( can. 1127 § 3) - in the narrower sense). In emergencies, under certain conditions, a marriage without church marriage assistance before witnesses can be sufficient (can. 1116).

An exemption from adhering to the form of canonical marriage is possible in individual cases in the case of the marriage of a Catholic with another baptized person (can. 1127 § 2) (mixed marriages of different denominations) if this is opposed by considerable difficulties.

The canonical form of marriage as a rule

According to can. 1108 § 1, the assistance of a competent church representative and the presence of two witnesses are a prerequisite for the validity of a marriage.

An ecclesiastical representative by virtue of his own right (original) can be a bishop or a priest (can. 1109, 1110) or - by delegation - a priest or a deacon (can. 1111 § 2), in rare exceptional cases also a commissioned layperson (can . 1112) be. A local ordinary or pastor has the original authority to assist in marriage within the boundaries of their territory, provided they are not excommunicated , interdicted or suspended from office (can. 1109); a staff ordinary or pastor within the limits of their area (can. 1110).

In cases of delegation (can. 1111) proof of the unmarried status of the bride and groom (can. 1113) and, in the case of general delegation, the permission of the delegating pastor (can. 1114) must be ensured. As a rule, the marriage is to be made in the parish of the main or secondary residence, with the permission of the local pastor also elsewhere (can. 1115).

The exemption from the canonical form of marriage in exceptional cases

Emergencies

For emergencies, the minimum requirements for marriage are given in can. 1116 regulated as follows:

"§ 1. If no one can be brought in or approached without serious disadvantage who is responsible for marriage assistance in accordance with the law, those who want to enter into a true marriage can conclude it validly and legally before the witnesses:

1 ° in danger of death;
2 ° outside the danger of death, provided that it can be reasonably foreseen that these conditions will last for one month.
§ 2. In both cases, if another priest or deacon can be present, he or she must be called and present at the marriage together with the witnesses, regardless of the validity of the marriage in front of the witnesses. "
Mixed marriages

For mixed marriages between the baptized, the need to adhere to the canonical form of marriage is a prerequisite for the validity of a marriage (can. 1127 § 1 in conjunction with can. 1108).

In the case of a mixed marriage between the baptized, a second religious ceremony before or after the canonical marriage is not permitted:

“It is forbidden to hold another religious wedding ceremony before or after the canonical marriage in accordance with § 1 to give or renew the marriage consensus; Likewise, no religious celebration may take place at which the Catholic assistant and the non-Catholic official at the same time, each in his own rite, ask for the consensus of the partners. "

When a Catholic is married to a non-Catholic according to the oriental rite, according to can. 1108 to adhere to the canonical form of marriage. Non-compliance, however, does not lead to invalidity if the other legal provisions are observed and a spiritual minister cooperates (can. 1127 § 1).

According to can. 1127 § 2, in the case of mixed marriages between the baptized, the canonical form of marriage can be dispensed with:

"§ 2. If there are considerable difficulties in adhering to the canonical form, the local ordinary of the Catholic partner has the right to dispense from it in individual cases, but only after consulting the ordinary of the place of marriage and without prejudice to the adherence to any public marriage form required for validity; it is the task of the Bishops' Conference to issue regulations according to which the aforementioned dispensation is to be granted in a uniform manner. "

In the case of mixed marriages of different religions, the provisions on the form of marriage apply accordingly in the case of mixed marriages of different confessions, whereby the need for permission according to can. 1086 § 1 must be observed.

Notification and certification obligations

After the marriage, those in can. 1121–1123 more closely regulated information and notarization obligations.

The termination of a marriage

General

"But what God has connected, man must not separate."

- NT , Mt 19.6  EU

This biblical statement means according to the Catholic understanding that a valid and sexually consummated marriage (cf.. Can 1061 § 1. CIC ) between baptized only by the death can be resolved ( cann 1141-1143. CIC , cann 853 f.. CCEO ; objective indissolubility). However, it is possible

In cases of marriage breakdown or adultery or the like, in particular cases of hardship (for example in the case of a “ cuckoo child ” or manifest violence ), the church only admits the “separation of table and bed” ( lat. Separatio quoad torum et mensam ), but not the divorce too.

With regard to the termination of a marriage, a distinction must be made between the legal and the factual level. A separation with a permanent marriage does not end the legal marriage, but only the actual cohabitation of the spouses. It is (only) under the conditions of cann. 1151–1155 allowed. With regard to the existence of a marriage legal relationship (marriage bond), a distinction must be made between the question of whether a marriage bond is effective at all and the other question whether a validly agreed marriage bond can be dissolved. While the non-existence of a legal relationship is only determined, a dissolving legal structure is required in the case of an effective marriage.

According to both state marriage law (in Germany) and church marriage law, the (bogus) spouses neither have the right to establish the non-existence of a real marriage nor the right to unilateral (termination, contestation) or mutual legal dissolution (annulment contract). This can only be done by a competent state or here church body. To this extent there is an absolutely subjective indissolubility of marriage.

The declaration of invalidity

The so-called marriage annulment is the determination of the nullity of a marriage by judicial or administrative channels. It is not a dissolution of an existing marriage (divorce), but the determination that a valid marriage did not materialize.

A marriage can be annulled for three reasons, namely when it is concluded

  1. there was a separating impediment to marriage (impedimentum dirimens) - or
  2. one or both partners lacked the required will to marry (defectus consensus) - see also marriage consensus - or
  3. the prescribed form of marriage was not observed (defectus formae) .

There are four types of procedure:

  1. the ordinary court proceedings ( cann. 1671 ff. , 1501 ff. CIC / cann. 1357 ff. , 1185 ff. CCEO , processus ordinarius )
  2. judicial proceedings on the basis of documents ( cann. 1688–90 CIC / cann. 1374–76 CCEO , processus documentalis ; cf. also document process )
  3. since the end of 2015 the so-called shorter marriage process before the bishop ( cann. 1683–87 CIC / cann. 1369–73 CCEO , processus matrimonialis brevior coram episcopo ; cf. Mitis Iudex Dominus Iesus ); the Pope as Bishop of Rome made his first decision in the shorter procedure on July 13, 2017
  4. the determination of the nullity of marriage by administrative means in the case of informal (i.e. usually only secular) marriages of formal Catholics ( cann. 1066 f. CIC / cann. 784 f. CCEO ).

Worldwide, a total of 56,890 first-instance court decisions were issued in marriage nullity cases in 2017 (90.6% of them in the ordinary procedure, 6.4% in the document procedure and 3.0% in the shorter procedure). In 86% of the cases it was decided in favor of nullity ( pro nullitate ). In Germany there were a total of 867 first-instance decisions (85% pro nullitate ), in Austria 164 (79% p. N. ) And in Switzerland 74 (88% p. N. ). In contrast, the number of applications for dissolution of marriage was due to non-enforcement world with only 242 in Germany at 13. By comparison Weltlicherseits there was in Germany in 2016 a total of 162,397 divorces ( § 1564 et seq. BGB and 118) marriage waivers for initial defects ( § 1313 et seq. BGB).

For further details see under: Marriage nullity (canon law) .

The validation of an ineffective marriage

General

The validation (convalidation) relates to a marriage that was previously only apparently valid, but actually invalid. The real reason of all canonical marriage law is to prevent invalid marriages as far as possible; nevertheless it happens

  • that the marriage will of one or both partners was deficient or
  • that the marriage has become invalid due to an impediment to marriage or a lack of form

In view of the sacramental dignity of marriage (can. 1055) and its great importance both for the ecclesial community and for the salvation of the soul of those concerned, void marriages represent serious impairments in the life of the spouse, the children and the Church, at least in retrospect if possible need to be eliminated.

The way of separating the partners, whose marriage did not come about validly, is in many cases neither good nor possible, since as a rule, marriages which have not come about validly also result in natural legal obligations, which one cannot and may not do away with without further ado. Can. 1676 advises the marriage judge to try beforehand to get the married couple to validate their marriage, if possible, and to reestablish the conjugal union if he believes there is hope.

requirements

1) The conceptualization of a marriage presupposes at least the outward appearance of a marriage. A mere cohabitation can therefore not be validated, but it can always be a union which at the time should be constituted as a marriage through a public declaration of consent (also before the registry office).

2) The wedlock of the bride and groom is the effective cause of every marriage (can. 1057) therefore the indispensable condition for every validation of a void marriage is that the wedlock of both partners continues to exist. If a partner's initially existing wedlock lapses (revoked) in the course of the marriage, any validation is impossible.

3) In general, it is a prerequisite for convalidation to be able to remedy the ground of invalidity that caused the marriage to be invalid.

The reason for nullity is remedied either by omission (e.g. death of the former spouse) or dispensation. If there is an irreversible reason for the nullity of marriage (e.g. close blood relationship), the marriage cannot of course be validated.

4) Canon law knows two ways of validation:

a) The normal way is the simple validation (convalidatio simplex) , that is the validation through a renewal of the consensus (cann. 1156–1160). This path is always possible if the obstacle to the validity no longer exists. The renewal of the consensus brings about the validity of the marriage ex nunc.

b) The second possibility is healing in the root (sanatio in radice) (cann. 1161–1165). If the will of the marriage is clearly declared and validly continues, and the corresponding obstacle has been removed, the church can in certain cases declare the marriage to be valid by a sovereign act without the spouses having to do anything. The meaning of the sanatio consists u. a. in that marriage is valid ex tunc.

The simple validation

a) A marriage that did not come about validly because of an obstacle to marriage that existed at the time of the marriage can only be validated if the separating obstacle has either disappeared of its own accord (insufficient age, death of the first spouse) or has been removed by subsequent dispensation (religious difference , Sisterhood) (can. 1156 § 1).

b) A marriage that is invalid because of a lack of consensus is made valid if the partner who has not given a (valid) consensus (e.g. because of the exclusion of marital fidelity, indissolubility, offspring or because of a relevant error about a central characteristic in the personality of the other partner etc.), now gives the consensus, provided that the consensus reached by the other partner continues (can. 1159 § 1).

c) The convalidatio simplex is carried out by renewing the consensus of one or both partners; it is actually an act of marriage. The renewal of the consensus must be a new positive act of the will to marry, which the partner must perform who knows or even believes that he is living in an invalid marriage (can. 1157).

d) The form of renewal of the consensus depends on whether the obstacle to marriage or the original lack of will can be proven (is obvious, certain is certain) or not.

  • If it can be proven, the canonical form of marriage must be observed (can. 1158 § 1).
  • If it cannot be proven but is known to both partners, both have to perform the act of renewing the consensus without being tied to a specific form.
  • If the obstacle is known only to one part, then his private renewal of the consensus results in a valid marriage, provided that the other part still maintains his will to marry (can. 1158 § 2).

(Evidence is given if the obstacle in the external legal area is known in such a way that the nullity of the marriage could be proven on the basis of this obstacle.)

e) The meaning of the renewal of the consensus lies in a very conscious new, final, irrevocable, sacramental yes to the spouse before God and the Church. Such a decision of both partners here and now can have a wonderful, “healing” effect for the whole of the marriage and family (“I will marry you again today!”). It is for this reason that consensus renewal is also the normal way of validating a marriage; the sanatio in radice should rather remain the exception for which there is a weighty reason.

The healing in the root (sanatio in radice)

a) Healing in the root (sanatio in radice) is that form of validation that takes place through a sovereign act without the need for a renewal of the consensus of the partners (can. 1161 § 1). Since these do not have to be active, it can (in special cases!) U. It can even be undertaken without the knowledge of one or both partners (can. 1164). The sovereign cure the root causes ab initio the validity of the hitherto marriage duly contracted and also contains a dispensation from a possibly present (dispensablen) impediment to marriage and / or of the form mandatory, if it was at that time violated.

The prerequisite for marriage healing in the root is that at this point in time both partners have sufficient marital will (can. 1162), and that any obstacle that may be present is dispensable (can. 1163 § 2) (originally it was a natural law, not dispensable obstacle acted (e.g. marriage after divorced marriage, consanguinity) then no healing in the root is possible, even if the former partner has died in the meantime, only a renewal of the consensus)

b) Since the marriage will of the bride and groom is the effective cause of the marriage covenant (can. 1057 § 1), a marriage healing in the root cannot be validly carried out, if only one partner lacks the sufficient marital will; It does not matter whether the will of the marriage was absent from the beginning or was defective or whether the originally existing will of the marriage was later revoked (can. 1162 § 1).

Conversely, if an originally defective marital will was later replaced by a sufficient one, the marriage can be rehabilitated from the point at which the consensus is improved (can. 1062 § 2) if the marital will of the other partner is still intact. Therefore, marriage healing may only be undertaken if there is a likelihood that both partners want to continue a real (good) married life (approx. 1161 § 3).

c) The bishop is responsible (written request to the vicariate general).

The dissolution of an existing marriage

The principle of the indissolubility of marriage (can. 1141) applies unreservedly only to a valid, completed sacramental marriage ( matrimonium ratum et consummatum , can. 1061 § 1). There are limited exceptions for unfulfilled and non-baptized marriages in which one spouse becomes a Christian.

These concern exclusively

  • in the case of a valid but not consummated marriage, be it in the case of a marriage between non-baptized persons or in the case of a baptized spouse ( matrimonium ratum tantum , can. 1061 § 1);
  • the case of the dissolution of a valid marriage between the non-baptized "in favor of faith".

The dissolution of an incomplete marriage

According to can. In 1142, an incomplete marriage can be dissolved by the Pope “for a just cause”. A non-consummate marriage (matrimonium non consummatum) is a marriage in which, according to the marriage consensus, no sexual intercourse has taken place between the spouses. However, sexual intercourse with contraceptives is not considered to be a marriage (making the distinction between mechanical and other contraceptives is outdated).

The dissolution of a non-sacramental marriage in favor of faith

Non-sacramental marriages, i.e. marriages between non-baptized spouses, may in exceptional cases in favor of the faith of a partner who has become Christian, in accordance with cann. 1143–1150 and in corresponding cases not expressly regulated by law.

Effects of a marriage

The effects of marriage are described in cann. 1134–1140 regulated

The spouses themselves concern cann. 1134–1135:

"Can. 1134 A valid marriage creates a bond between the spouses which by its nature is lifelong and exclusive; In a Christian marriage the spouses are strengthened by a special sacrament and, as it were, consecrated for the duties and dignity of their class. "

"Can. 1135 - Both spouses have the same duty and the same right with regard to the community of conjugal life. "

The upbringing of children speaks can. 1136 to:

"Can. 1136 - The parents have the very strict duty and the first priority right to take care of the physical, social and cultural as well as the moral and religious upbringing of their children. "

The legitimacy of children from a canonical perspective cann. 1137-1140:

"Can. 1137 - The children conceived or born in a valid marriage or in a putative marriage are legitimate. "

"Can. 1138 - § 1. The father is the one whom the lawful marriage proves as such, unless the contrary is proven on the basis of convincing arguments. "

"§ 2. Those children are presumed to be legitimate if they were born at least 180 days after the date of the marriage ceremony or within 300 days after the day of the dissolution of the marital union."

"Can. 1139 - Illegitimate children are legitimized by the subsequent marriage of the parents, be it a valid marriage or a putative marriage, or by a rescript of the Holy See. "

"Can. 1140 - With regard to the canonical effects, the legitimized children are equated with the legitimate children in everything unless the law expressly provides otherwise. "

Procedural matters

The church marriage process

The determination of the nullity of a marriage (marriage annulment) is incumbent on the Church alone. The formal marriage law (ecclesiastical marriage process law) is generally regulated in the VII. Book Processes and there specifically in Title III Special Types of Proceedings , Title I Marriage Processes in the canons 1671–1707.

The presumption for the validity of the marriage

According to can. In 1060 the marriage is assigned to the favor iuris:

"Can. 1060 - Marriage enjoys legal favor, therefore, in case of doubt, the validity of the marriage must be adhered to until the opposite is proven. "

Thus, the nullity proceedings are de facto conducted against the presumption of validity.

If the fact of the marriage is certain, the validity of the marriage must first be assumed. Anyone who claims the nullity of their marriage bears the burden of proof. If he produces the proof, the marriage can be declared null and void (Constat de nullitate matrimonii) . If the proof fails, the action must be dismissed even in case of doubt; the judgment then reads: Non constat de nullitate matrimonii .

The need to prove that the marriage did not materialize can mean that an objectively ineffective marriage is not declared ineffective for procedural reasons (because the invalidity cannot be proven). This is no different under state law in corresponding cases. The consequence of this, however, cannot be that the legal presumption of can. Abolish 1060. In such a case, numerous marriages that are in fact validly concluded would be invalidated. The meaning of the presumption of can. 1060 ultimately depends on ecclesiastical practice and the assessment of evidence by the ecclesiastical court. This does not completely rule out the falling apart of the outer and inner areas, but it is limited to a few cases.

According to two apostolic letters from Pope Francis from September 2015, from December 8, 2015, a first instance can under certain circumstances already declare a marriage null and void, so that a second instance is no longer required in every case.

See also

literature

Individual evidence

  1. ^ So Wolfgang Thönissen, In: Thönissen, Wolfgang (Hrsg.): Lexikon der Ökumene und Konfessionskunde. Herder: Freiburg i. Br. 2007: marriage. Sacrament of marriage, to 2.
  2. ↑ http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651207_gaudium-et-spes_ge.html
  3. ^ Klaus Lüdicke, in: Lüdicke, Klaus (Ed.): Munster Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1059 note 9 (at the end)
  4. ↑ a b c Klaus Lüdicke: Munster Commentary on Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1055 note 5
  5. ↑ References from Klaus Lüdicke: Munster Commentary on Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1055 note 64 with further references.
  6. ↑ Klaus Lüdicke: Munster Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1055 note 66
  7. ^ Theodor Nikolaou, in: Thönissen, Wolfgang (Hrsg.): Lexikon der Ökumene und Konfessionskunde. Herder: Freiburg i. Br. 2007: Ehe, re 3 a), col. 291
  8. ↑ Klaus Lüdicke: Munster Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1055 note 61
  9. ↑ Cf. Klaus Lüdicke: Munster Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1055 note 68
  10. ↑ http://stjosef.at/dokumente/familiaris_consortio.htm#Zweiter%20Teil
  11. ↑ Mixed marriage. In: bz-bx.net. Diocese of Bozen-Brixen, accessed on April 2, 2014 .
  12. ↑ See also Klaus Lüdicke: Munster Commentary on Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1095 note 9
  13. ↑ With Klaus Lüdicke, in: Lüdicke, Klaus (Ed.): Munster Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Can. 1095 note 8
  14. ^ Theodor Schmalz : Encyclopedia of the common law . Friedrich Nicolovius , Königsberg 1790, p. 147 ( limited preview in Google Book Search [accessed November 27, 2019]).
  15. ↑ Sentencia proceso breve 13 de julio 2017 (text in Latin and Spanish)
  16. ↑ cf. Pontificia Commissio Codici Iuris Canonici Authentice Interpretando , AAS 76 (1983) 747
  17. ↑ Annuarium Statisticum Ecclesiae 2017 (published 2019), p. 421 ff.
  18. ↑ Federal Statistical Office : Fachserie 1, Reihe 1.4 (2016, published on July 4, 2018)
  19. ↑ The section on convalidation essentially follows the commentary by Klaus Lüdecke, in: Lüdicke, Klaus (Hrsg.): Münsterischer Commentary on the Codex Iuris Canonici. Ludgerus: Essen, loose leaf August / 2010, Cann. 1156 ff.
  20. ↑ The remarks on can. 1060 essentially follow the commentary by Klaus Lüdicke, in: Klaus Lüdicke (Ed.): Munster Commentary on the Codex Iuris Canonici. Loose leaf. Ludgerus, Essen, August / 2010, Can. 1060
  21. ^ Kölner Stadtanzeiger: Pope Francis facilitates marriage annulments, September 2015