Defect of form (canon law)
As informality in is Catholic canon law , in particular the lack of necessary for a canonically valid marriage among Catholics canonical form of marriage called. The obligation for Catholics to adhere to this form is called the formal obligation .
term
In principle, canon law does not use the general legal term “ lack of form ” differently than the legal language of secular law or other legal systems does. The great importance of the form of marriage for the marriage law of the Catholic Church and the weight that marriage law has in the legal practice of the Roman Catholic Church have led to the fact that this term is particularly present and well-known in the field of Catholic legal language in its special marriage law meaning .
Formal requirement
The canonical form of marriage - introduced by the decree Tam etsi (1563) of the Council of Trent - prescribes that a marriage can only be made by two legally qualified persons of different sex with the assistance of the local ordinary , the local pastor or one of the two delegated priests or deacons can be concluded before two witnesses (can. 1108 CIC ). As early as the Fourth Lateran Council (1215) in its 51st canon, secret marriages without public notice were forbidden. The purpose of the formal obligation was originally to get rid of the prevalent practice of secret "clandestine marriages" (marriages without witnesses) that could not be controlled by the church and to be able to check the marriage ability of the bride and groom in advance in order to avoid double marriages .
Since the formal requirement is an ecclesiastical law, it basically only applies to those legal subjects who are subject to ecclesiastical law. Until the Second Vatican Council , the Roman Catholic Church took the view that canon law was universally valid for all Christians of the Latin tradition . For this reason , marriages of baptized believers outside the canonical form - for example in the churches of the Reformation - were not recognized as valid marriages by the Catholics for a long time, but were regarded as mere concubinates. In contrast, the new code of law (CIC) of 1983 represents the legal principle according to which the laws of the church - always insofar as they contain no generally binding over-positive (“ divine ”) law - are only binding for its own members. According to today's Catholic view, non-Catholic Christians in particular are not subject to the formal requirement. This is significant insofar as a marriage concluded, for example, among Protestant Christians without adherence to the Catholic form (e.g. before the Protestant pastor or just civil ) is now valid according to the Catholic view, provided there are no other obstacles, and therefore ( since every marriage between Christians is regarded as sacramental and indissoluble) a church (Catholic) remarriage is excluded.
If, on the other hand, a person with formal requirements is signed, d. H. a Roman Catholic Christian, marriage without appropriate dispensation (exemption from the formal requirement) in a non-Catholic form, this marriage is not legally valid. In this case, there is nothing to prevent a later church (Catholic) remarriage because, according to the Catholic view, the person was not married at all.
Current scope
An important legal change was made in this context with the entry into force of the Motu Proprios Omnium in mentem (December 2009) of Pope Benedict XVI. given. Until then, Catholics who had “fallen away” from the church through a so-called “formal act” (including Catholics who had left the church after a long time prevailing legal opinion in Germany) were expressly exempt from the formal obligation. In practice, this meant that a resigned Catholic who did not marry another baptized Christian in the church, but only in a civil ceremony, automatically (and usually without knowledge or will) entered into an indissoluble, sacramental marriage in the Catholic understanding (and thus after a civil divorce could not remarry in church even though he had never formally married in church before). There was no violation of the formal requirement, which would have led to the invalidity of the first marriage under church law, as a result of the aforementioned exception rule.
This unequal treatment of left and non-left Catholics was eliminated by the most recent Motu Proprio by removing all references to the “formal act” of apostasy by the church from the CIC, so that such a formal exit from the Catholic Church no longer exists today . All Christians baptized or joined the Catholic Church (including resigned or “apostate” Catholics who have renounced the Church in public) have been subject to the Catholic formal obligation at marriage since 2010 without distinction. A purely civil marriage by Catholics is therefore always invalid from the point of view of Catholic canon law, regardless of whether they are active members of the church or Catholics who have resigned.
The treatment of older cases of resigned Catholics who married a Christian between the entry into force of the CIC on November 27, 1983 and the amendment to the law on April 8, 2010, while not complying with the formal requirement is inconsistent. Due to the non-retroactivity of adverse legal provisions in ecclesiastical law, the regulation in effect at the time of their marriage is in principle still applicable to them; marriages are therefore not considered invalid in the Archdiocese of Cologne because of a lack of form and are therefore considered indissoluble. This legal opinion is based on the German Bishops' Conference adhering to the assessment of leaving the church as a formal separation from the church ( schism ), which led to automatic excommunication and thus, according to the old law, to exemption from the formal obligation. Since the request for recognition of a formal deficiency is usually in the background of the desire to enter into a new church marriage, the question is discussed to what extent a retroactive application of the new regulation would actually be a legal act that weighs on the applicant and does not favor the applicant, which the retroactive effect is not more exclusions.
Consequences of a lack of form
Living together in a canonically invalid marriage is from the standpoint of traditional church morals which cohabiting same. Although a certain binding force is no longer denied to such a partnership, even on the part of the church, a man and a woman who live together without a valid marriage can still not go to the sacraments until this circumstance, which the church has qualified as a “public nuisance”, is resolved ( e.g. for communion ). This applies to Catholics who are purely civilly married as well as to couples living together completely unmarried.
The question of whether only civilly married Catholics who left the church at the time of their civil marriage before 2010 are also affected by the church penalty has not yet been canonically clarified. Normally, it is only relevant if a re-entry into the Catholic Church has taken place in the meantime, since according to the prevailing opinion so far, the publicly recorded exit from the church entails automatic excommunication and thus exclusion from receiving the sacraments. However, this legal opinion has been questioned more and more frequently in recent years due to statements by the Holy See (for example in the case of canon lawyer Hartmut Zapp ).
Dispensation from the formal requirement
The local Catholic ordinary can exempt from the formal requirement before the marriage if there are serious reasons (e.g. the other partner refuses to enter into a church marriage). In addition, there was already in the old church law before 1983 a number of special cases (e.g. danger to life or inability to reach a competent priest) specified by the new law ( can. 1116 CIC ), in which the marriage is considered valid if the form is not adhered to, even without prior dispensation (so-called note closure). Likewise, a marriage not entered into by the church can be recognized retrospectively (so-called sanatio in radice , i.e. “validation from the beginning”), provided that the will of both partners continues at the time of validation.
See also
Individual evidence
- ↑ Defect of form - marriage without church wedding. Information on the website of the Archbishop's Office of Cologne, accessed in November 2019.
- ↑ Catholic Catechism of the Dioceses of Germany. Herder & Co GmbH, Freiburg (Breisgau) 1955, p. 186.
