A lecture given on August 25, 1998 by Bishop Tissier de Mallerais given at the Canon Law Seminar on Marriage Cases at Econe, Switzerland
The legitimacy and status of our tribunals
The declarations of nullity given by post-conciliar ecclesiastical tribunals are often doubtful. Do we have the right to supply for this deficiency, by the means of tribunals functioning within the Society of St. Pius X?
Archbishop Lefebvre foresaw the necessity of creating a Canonical Commission, in particular in order to resolve marriage cases after an initial judgment by the district superior. The following text from a letter that he wrote to the Superior General on January 15, 1991, is quoted in the Society’s Regulations:
Inasmuch as the present Roman authorities are imbued with ecumenism and modernism, and that their decision and the new law are as a whole influenced by these false principles, we must institute authorities to supply for these deficiencies, which faithfully adhere to the Catholic principles of Catholic Tradition and Catholic law. It is the only way to remain faithful to Our Lord Jesus Christ, to the Apostles and to the deposit of the Faith, transmitted to their legitimate successors, who remained faithful until Vatican II."
He continued indicating that these commissions ought to start modestly, according to necessity, and should be a service to help priests resolve difficult cases in their ministry. The central reason for our marriage tribunals is, consequently, that they are necessary for the souls of our traditional faithful.
I. The new legislation on matrimony
The New Code of Canon Law gives a new definition of marriage, canon 1055, °1: "totius vitae consortium ...ad bonum conjugum atque ad prolis generationem et educationem." Note the inversion of ends with respect to the traditional teaching, and the priority given to the spouses’ own good, according to the personalist conception.
The 1917 Code teaches, to the contrary, the distinction of two subordinated ends: finis primarius: procreatio et educatio prolis; et finis secundarius: mutuum adiutorium et remedium concupiscentiae. In the inversion of these ends the New Code makes the ambiguous statement of Vatican II more clear, cf. Gaudium et spes 48, °1: "vinculum sacrum intuitu boni, tum conjugum et prolis, tum societatis ..."
The consequence is that the matrimonial consent is no longer considered as a "ius in corpus, perpetuum et exclusivum, in ordine ad actus per se aptos ad prolis generationem" (canon 1081, °2), but as a "totius vitae consortium" (1983 Code, canon 1055, °1), that is as an interpersonal relationship, which is characterized by certain qualities, which can make it either possible, or difficult, or even impossible (cf. canon 1057, °2 of the 1983 Code).
However, the qualities of this relationship are, according to the traditional conception, outside the marriage contract. Pope Pius XII reaffirmed this, in opposition to novel ideas, when he required that a judgment of the Roman Rota be included in the Acta Apostolicae Sedis (AAS 36 (1944), 172-200). After a reminder of the two ends of marriage, their hierarchy and their subordination, the judgment affirms that:
A matrimonial contract can be validly concluded with respect to the principal right, even if it explicitly excludes secondary rights ...Cohabitation and regular sharing of bed and table belong to the integrity of individual life, but not to the essence of conjugal life ...Common life, sharing dwelling, bed and table do not belong to the substance of marriage ...The well known definition, or rather the description that Modestinus gave of marriage—Marriage is the union of a man and a woman, consortium totius vitae et communicatio iuris divini et humani—lists at the same time elements which constitute it essentially and those which are its natural consequence, without any order of dependence among them being clear. That is why one cannot, from this well know description of marriage, understand the ends of marriage. This can only be done with prudence and making the necessary distinctions. The giving of the right, to this kind of mutual help, is not necessarily required in order to validly contract marriage...."
It is clear that if the "totius vitae consortium" enters into the object of the matrimonial contract, those defects, which render the community of life between the spouses impossible from the beginning, also invalidate the matrimonial pact. It is certainly true that the Church can, by positive law, add new impediments to marriage.
These are, however, changes in rules, which do not indicate a change in the substance of the sacrament of marriage and which determine in a very precise manner the circumstances, which make a person incapable of entering into a marriage contract, in such a way that it is easy to make a judgment on the presence of such impediments, without fear of abuses happening. But this is exactly what is not the case here, for there is a change in the conception of the substance of the sacrament, opening it up to all kinds of abuses.
The following three examples are taken from the 1983 Code of Canon Law:
1. Canon 1095, °2:
Sunt incapaces matrimonium contrahendi.... qui laborant gravi defectu discretionis judicii circa iura et officia matrimonialia essentialia mutuo tradenda et acceptanda."
This is opposed to the traditional teaching, according to which there are only two grounds for nullity, and which come from a defect in the intelligence:
- Ignorance that marriage is "a permanent society between a man and a woman to engender children" (canon 1082, °1), which ignorance is not presumed after puberty.
- Error on the unity or indissolubility of marriage, if it determines the will (cf. canon 1099 of the 1983 Code, which codifies the traditional jurisprudence on this point).
Whereas the traditional teaching is simple and clear, the New Code’s defect of due discretion—that is of immaturity of judgment—necessarily bears on a personal and interpersonal accomplishment of the essential obligations of marriage, which is outside of the traditional object of the marriage contract, and concerns rather the subjective aspect of the matrimonial bond. It is certainly true that the growing immaturity of modern youth often makes their marriages imprudent and unlikely to last. But to establish an incapacity of marrying, on the basis of immaturity, is to invoke a personalist and subjective interpretation of the matrimonial contract, and to open the gate to abuses.
2. Canon 1095, °3:
Sunt incapaces matrimonium contrahendi..qui ob causas naturae psychicae obligationes matrimonii essentiales assumere non valent."
The only physical incapacity that the traditional teaching of the Church recognizes is that of impotency (canon 1068, °1), for it renders impossible the giving of a "ius in corpus in ordine ad actus per se aptos..." (canon 1081, °2). The only mental incapacity is amentia or dementia, which render a subject radically incapable of entering into a contract (cf. canon 1081, °1: "inter personas iure habiles").
Without doubt, there are now many cases of disequilibrium, due in large part to the destruction of the family, which make a permanent marriage union a chancy thing. But who can determine what degree of disequilibrium renders it radically impossible? John Paul II himself has had to remind canon lawyers that such psychological disorders must, in order to invalidate marriage, be "a serious form of anomaly which ...must substantially undermine the capacity of understanding and/or willing of the contracting party" (Address to the Roman Rota, Feb. 5, 1987; AAS 79 (1987), 1457). Despite this reminder, canon 1095, °3 remains an open door to abuses.
3. Canon 1098:
Qui matrimonium init deceptus dolo, ad obtinendum consensum patrato, circa aliquam alterius partis qualitatem, quae suapte natura consortium vitae conjugalis graviter perturbare potest, invalide contrahit."
Until the 1983 Code, deceit was never accepted as a grounds for nullity of marriage, and this in order to protect the permanence of the conjugal bond. However, the authors admit that the Church could introduce, in her positive law, deceit as a grounds, especially if the deceit concerned something necessary to the primary object of marriage, such as the bonum prolis (e.g., one of the spouses deliberately hiding the fact that he/she was sterile).
But canon 1098 of the 1983 Code is much broader than this, and includes such deceit as the hiding of drunkenness, drug addiction, or even an angry temperament, which would make the common life impossible. The personalist inspiration of this new canon is quite clear and such that we cannot accept it. Nor is it our place to reformulate it in a Catholic sense.
Alas, 95% of the declarations of nullity made by post-conciliar tribunals base them on canon 1095. We must consider these judgments as null and void. "Catholic divorce" is even spoken of—so easy is it to obtain a favorable judgment in virtue of this canon.
Very often—even when there are real grounds to establish nullity, but which are difficult to prove—the conciliar tribunal will opt for a declaration, in virtue of canon 1095, as an easy way out. We are told, then, that such a marriage is truly null and void, even if the judgment is defective. Why not simply take advantage of the judgment in favor of nullity, even if it is not correct? To this we must respond that an individual opinion does not suffice and is no more useful than an invalid judgment. There must be a valid judgment of a tribunal to make known the public fact that a person is free to marry.
II. What are traditional Catholic faithful to do?
They do not have the right to go to Conciliar ecclesiastical tribunals. For to do this would be to run a great risk of receiving an invalid declaration of nullity. Any subsequent marriage would be living in sin and would be, effectively, a canonical concubinage.
They cannot, in order to marry again, themselves judge of the nullity of their marriage, or simply be satisfied with the opinion of a priest friend, for marriage is a question of the public good. This would be to open the door to subjectivism and disorder; it would put down the matrimonial bond and further increase the confusion and scandal.
They have, in justice, the right to be certain of the validity of the sacrament which they received at a second marriage and, hence, of the validity of the judgment of nullity. They have, therefore, a right to be protected against the personalist errors which invalidate these sentences. If we do not protect these rights, who will?
Faithful priests and bishops have the duty to defend and protect the marriage bond which is endangered by the new legislation. How are we to accomplish this duty? The faithful, not knowing where else to turn, are in a state of necessity, and their priests and bishops have the duty to help them. In this situation, faithful bishops and our Canonical Commission, founded on the general principles of law which govern the life of the Church, have the powers of supply to judge marriage cases.
III. The doctrinal basis of our powers of supply
1. Canon 20 (1983 Code, canon 19): When there is no determination of law for a particular case, then it must be resolved by taking the rule:
a legibus latis in similibus; a generalibus iuris principiis cum aequitate canonica servatis; iurisprudentia et praxi Curiae Romanae; communi constantique doctorum sententia."
Wernz-Widal explains this:
Ius ergo suppletorium est ius applicandum in particularibus casibus, cum circa illud non habeatur in codice praescriptum quod peculiari illi casui sit applicandum (no. 180)."
2. Three ways of applying this principle exist:
Consultation of parallel places, according to the principle of analogia legis (Wernz-Vidal, no. 181): "per quam iuris dispositio pro aliis casibus applicatur in casu simili de quo lex non disponit". Here the parallel case in the Code is that of impossibility of having recourse to the bishop in order to dispense from an impediment of ecclesiastical law. In danger of death or when omnia parata sunt ad nuptias the parish priest or confessor can dispense (canon 1044 & 1045). This signifies that the Church supplies them with the jurisdiction, ad casum.
Style or jurisprudence of the Roman Curia: A response from the Commission for the interpretation of the Code given on July 29, 1945 (AAS, 34, 241) enables us to extend the disposition of canon 1045 to the case of urgent necessity or when there is "periculum in mora" (cf. canon 81).
Epikeia and the opinion of the docotors with regard to canons 1043 et sq. is thus expressed by Cappello in his treatise De Sacramentiis, III, no. 199:
Si finis legis esset contrarie pro communitate, i.e. si damnum commune inde sequatur, lex non urget, quia merito censetur suspendi ex benigna mentis legislatoris interpretatione."
Thus it is that the legal obligation of having recourse to post-Conciliar tribunals is suspended. However, the obligation of having recourse to a truly Catholic tribunal is not suspended.
3. Given all these considerations, we conclude that our Canonical Commission—in the present case of moral impossibility of having recourse to post-conciliar tribunals—has the right to judge marriage cases. If the Holy See was not as modernist as the tribunals, it would give us this power by Canonical Equity.
In fact, it is more serious a thing to dispense from a diriment impediment in virtue of canon 1045—for this changes the condition of a person and makes him capable of contracting marriage—than to make a declaration of nullity of marriage. For such a declaration does not, in effect, change the condition of the person, but simply makes a statement about the condition that the person was already in ab initio, i.e., from the beginning of the marriage. It is, consequently, only a declaratory power of jurisdiction. If, therefore, the power of supply gives us the authority to dispense in certain cases, how much more does it give us the authority to make a simple declaration of nullity.
IV. The exercise of the right of judging marriage cases
Since our jurisdiction is only a supplied jurisdiction, it has the following properties:
- It is not habitual, but is exercised ad casum, per modum actus. Consequently, our tribunals do not sit in a habitual manner and their members are not named ad universas causas, but only each time that it is necessary ad hoc casum. This is the case even if, for ease of function and to maintain competency and consistency, these are usually or always the same defenders of the bond and the same judges who are named.
- It is not territorial, but personal.
- It depends on the necessity of the faithful, and, consequently, only lasts for as long as the common necessity lasts. It will continue if the impossible were to happen and we could find one or other tribunal to judge marriage cases uniquely according to traditional norms. For in this case, the common necessity would remain.
- It is a true jurisdiction, and not an exemption from the obligation to receive a judgment from the Church. Consequently, we have the power and the duty to pronounce true sentences, which have the potestatem ligandi vel solvendi. They, consequently, are imposed obligatorily on the faithful who request them. The proximate reason for this is that we must be able to tell the faithful what they must do to save their souls—quod debent servare.
- Our judgments are, consequently, not simply private opinions, for these could not possibly suffice when the public good is involved, as it is with every case in which the matrimonial bond is examined. In order to remove the doubt, our tribunals must have authority in the external form.
- This supplied jurisdiction does not usurp any papal authority or divine right. This question could only arise when our judgments in the third instance replace the judgments of the Roman Rota, which acts in the name of the pope when it judges as a tribunal of third instance. However, this is not an usurpation of the pope's power of divine right, since the reservation of this third instance to the pope is but an ecclesiastical law.
- Finally, our judgments, as all our acts of supplied jurisdiction, and the episcopal consecrations of 1988 themselves, will one day have to be confirmed by the Holy See.