An approach to declarations of nullity

Notes from a lecture given on August 28, 1998 by Bishop Tissier de Mallerais

An approach to declarations of nullity

The eternal salvation of souls is our primary concern, from which two principles flow:

  1. The priest has the duty to sanctify the faithful and, hence, to enable them to be in a state in which they can sanctify themselves.  
  2. Pastoral prudence takes account of individual circumstances and does not impose an unbearable burden on the faithful.

It follows, as a consequence, that the priest must both:

  • Seek to guide the faithful to live in the truth, in the order of God’s plan. 
  • Respect the good faith of those souls who are (probably) in a false situation, but in good faith, according to the principle that, it is better to leave them in good faith, than to risk converting their material sin into a formal sin.

These considerations, combined with the fact that we are often not aware of the entire situation, and also with the fact that many post-conciliar ecclesiastical tribunals deliver judgments based upon true, traditional grounds, as well as false grounds, means that we cannot automatically declare their judgments to be invalid. They must be carefully examined.

The following rules are both practical and canonical, and can guide the traditional priest in counseling his faithful:

1. A sentence pronounced by an official post-conciliar ecclesiastical tribunal cannot be, in itself, either accepted or rejected. Its validity will generally depend upon the legal criteria, or grounds used for the judgment and, consequently, it will have to be examined in iure, in order to find out if the grounds were consistent with traditional jurisprudence and, in particular, to exclude the grounds authorized by canon 1095, 2° & 3°, of the 1983 Code of Canon Law, namely, lack of due discretion and psychological immaturity.

In principle, if traditional grounds is used, it will not be necessary to re-examine the case in detail, and it can be accepted as is. However, on occasion, some flippant tribunals do not examine the facts closely and so it will be necessary to re-examine the case in facto.

2. The priest will never counsel a person to go to a post-Conciliar ecclesiastical tribunal. For there is a grave danger of a nullity being pronounced in iure for one of the doubtful or erroneous grounds approved by the New Code. It would then be impossible for the person to apply for an annulment on true grounds and it is difficult for him to accept the Society’s decision, if he has a post-Conciliar contrary decision. 

3. When the person is not remarried, but questions the validity of his first marriage, or has asked for and/or received a judgment in favor of nullity from a post-Conciliar ecclesiastical tribunal, then the priest has the duty of informing him that such a judgment is not sufficient proof that his marriage is null and void, and that he cannot in conscience remarry, before submitting his case to a traditional tribunal. 

4. If, after having received a judgment in favor of nullity from a post-conciliar ecclesiastical tribunal, the person has, in good faith, entered into a second marriage, the priest should leave him in good faith—if he is still in it, and for this purpose he should:

  • Not speak publicly of post-conciliar judgments of nullity.  
  • Not question the faithful in this regard. 
  • Reassure those, who have only a negative doubt, that this is a judgment of the Church and that they need not be concerned about it.

5. If a person—who has married a second time after having received judgment in favor of nullity from a post-conciliar tribunal—has a positive doubt, either because he is aware of the dubious grounds which were used in his judgment (in iure), or because of positive reasons, drawn from the previous marriage, which make him doubt the validity of the judgment (in facto), then the priest cannot leave him in doubt, but must attempt to resolve it in favor of the truth. For this he will:

  • Warn the person of the possibility of the nullity of the judgment by the post-conciliar tribunal.  
  • Explain that the doubt can only be resolved by submitting the case to the Society’s tribunals.  
  • Refrain from giving his own personal opinion on the validity of the judgment, or of the subsequent marriage. His personal opinion is of no juridical value, and could easily adversely affect the decisions of the party concerned. 
  • Ask for a summary of the case, request that the person obtain a copy of the judgment of First Instance and prepare a libellus to submit to the Society tribunals.

6. An action cannot be introduced before our tribunals, unless the concerned party agrees in advance to be morally bound by the decision. Hence, at the time of the citation, after the introductory libellus, the concerned party will be asked to swear under oath and sign the following promise:

I, ............................................., desirous of obtaining a decision in conformity with traditional Catholic principles, freely submit my marriage with ........................... to the tribunals of the Society of St. Pius X, and I promise:

  1. That I will not attempt to enter any marriage, religious or civil, until such time as the tribunals of the Society have rendered a final judgment concerning my freedom to marry.
  2. That I will accept the tribunals’ decision, whatever it is, and that, if it decides against the nullity of my marriage, I will not marry again or, if already remarried, I will no longer consider my second partner as a spouse.
  3. That I will not request a judgment or reexamination of my case by a post-Conciliar ecclesiastical tribunal.

All this I promise and I swear on the Holy Gospels, which I now touch with my hand.

...................................................................(date)

...........................................................(signature)

For as long as the Society’s Canonical Commission has not made a final judgment that constat or non constat de nullitate matrimonii, the post-conciliar tribunal’s judgment of nullity and the subsequent marriage (if it has already take place) are to be considered as valid. In consequence, the spouses can request and render the marriage debt and they cannot be refused the sacraments on account of this subsequent marriage.

The reason for this is that there is a presumption in favor of the judgments of the Church, which benefit from the presumption of law, and must be accepted as true and just (canon 1904, °1) unless overturned. This is an application of the principle melior est conditio possidentis. Even the use of canon 1095 for the judgment does not remove this presumption, for the faithful are not to be expected to make such subtle distinctions. Furthermore, there are often other grounds for nullity, which were neglected for expediency, and it would be unjust to forbid the use of marriage and to overturn the presumption, before a full examination had established the reality.

If a process for nullity has been opened with the Society’s tribunals and the faithful have been warned not to marry again, before the final judgment of the Canonical Commission, and yet they attempt marriage in a religious or civil ceremony, the sacraments can be refused and the process for nullity suspended, subject to the judgment of the superior who constituted the tribunal.