Was There A Legitimate Manifestation Of The Ministers' Consent?

Once again, three factors are to be kept in mind regarding a valid sacrament of marriage. The law states that marriage is brought about (c. 1057) through:

the consent of the parties (the bride and groom)
legitimately manifested,
by those qualified according to the law (again, the bride and the groom).
Once the bride and groom exchange their vows, the marriage (c. 1055) that takes place is legally presumed (c. 1060) to be a valid sacrament. Yet if enough information is brought forward to indicate otherwise, the presumption of validity will yield to a declaration of nullity. For instance, if it is determined that the consent of the parties was not legitimately manifested, then marriage was NOT brought about.

The manner in which consent is manifested

Now we move away from the consent of the parties. We are no longer scrutinizing the act of the ministers' wills. Rather the tribunal investigation is concerned with the official who witnessed the exchange of consent.

As the Catechism of the Catholic Church states: "The priest (or deacon) who assists at the celebration of a marriage receives the consent of the spouses in the name of the Church and gives the blessings of the Church. The presence of the Church's minister (and also the witnesses) visibly expresses the fact that marriage is an ecclesial reality (CCC, 1630)."

From external observances it is presumed that the parties' consent was legitimately manifested in the presence of a duly appointed priest or deacon. In other words the proper form governing marriage had been observed (cc. 1108-1123, 1127).

What is this "proper form" of marriage? Well, a baptized Catholic, who has not left the church by a formal act, must exchange consent in the presence of an authorized church official (unless this requirement is dispensed). In most cases this means that a Catholic is married in the presence of a duly appointed priest or deacon. The presence of this official is required for VALIDITY (c. 1108).

The faith community presumes that the official was indeed duly appointed to witness the minister's exchange of consent. A tribunal investigation which seeks to determine the opposite is called a proceeding regarding a "defect of form." Cases that require this type of investigation are rare.

The ministers' consent is not called into question, but rather the authority of the official who witnessed the consent is questioned. If it is proven after the fact that the official lacked authority, the marriage is declared null by reason of a defect of form. In other words marriage was NOT brought about as the official lacked the proper authority to witness the ceremony.

An example of a defect of form

In 1991, two Catholics, Tom and MaryBeth, wished to marry in her parish church in the presence of her uncle, Father Bill Suspension. Father Bill was from the mid-West. Three months before the wedding he had presented all of his credentials to the pastor and everything was in order. Indeed the wedding ceremony took place and was enjoyed by all. The presumption (c. 1060) was that a valid sacramental marriage (c. 1055) had been brought about (c. 1057).

Unfortunately two years later the couple divorced. Tom petitioned the church for a declaration of nullity based on "defect of form." It appears that after the divorce Tom was shocked to discover that Father Bill had been suspended from the ministry two weeks before the wedding. Therefore he was no longer authorized to witness marriages. The priest hadn't told anyone because he was embarrassed by these circumstances.

The tribunal investigation uncovers that this was indeed the case. Since the church official lacked the authority to witness the union, the marriage is declared null by reason of a defect of form. In other words marriage was NOT brought about as the official lacked the proper authority to witness the marriage. There had been no duly appointed official present.

Marriages of non-Catholic Christians (Protestant marriages)

Baptized Protestants are not bound by the form of marriage, i.e., they do not have to exchange their consent in the presence of a Catholic official. A baptized Catholic who left the church by a formal act and married after the year 1983 (the year the present code of law went into effect) is not bound by the form of marriage either.

The Catholic Church considers marriages of Protestants to be valid marriages. So if two Lutherans marry in the Lutheran church in the presence of a Lutheran minister, the Catholic Church recognizes this as a valid sacrament of marriage. If an Episcopalian man marries a Presbyterian woman before a Justice of the Peace, the Catholic Church recognizes this as a valid sacrament of marriage.

This is consistent with our theological understanding of marriage. Once the two ministers (baptized Christians) have exchanged their consent a valid, sacramental marriage (c. 1055) has been brought about. Indeed how odd it would be if the faith community only recognized the marriages of Roman Catholics as valid sacraments. Baptism is the foundation of the Christian life (CCC, 1213 & 1617).

However, once the Catholic Church recognizes a marriage as a valid sacrament, any question of invalidity must come before a church tribunal. Marriage is both a private and public reality. An investigation of validity concerning a Protestant marriage occurs if a subsequent marriage involves a Catholic. The faith community at large is concerned for its individual members. The marriage of any member of the Church affects all the members (c. 1059).

So if two Lutherans marry and subsequently divorce, and the divorced man now wishes to marry a Catholic woman, he is not free to do so. He would only become free if the Church issued a declaration of nullity for his first marriage. Nearly twenty percent of formal marriage cases pending before the Boston Tribunal pertain to marriages of non-Catholic Christians.

Lack of form cases

This type of case is not judicial in nature, but rather administrative. In other words no judgment is required to overturn a presumption of validity. The invalidity of the marriage is obvious from the start.

As stated, a baptized Catholic, who has not left the church by a formal act must marry in the presence of a church official. This is the form of marriage and it is required for validity (cc. 1108-1123, 1127). If the proper form, being married in the presence of a priest or deacon, is not followed on the wedding day, the faith community does not recognize the union as a marriage. There is no presumption of validity in this instance. So there is no presumption in law to overturn.

For example, if two baptized Catholics decide to marry in the presence of a Justice of the Peace, instead of a priest, they have not observed the form of marriage. By choosing not to observe the proper form of marriage, they have chosen not to have their union recognized as a valid marriage by the faith community.

A good deal of the work for the initiation of these cases is done on the parish level. Parochial ministers gather documents to establish that the parties did not follow the proper form at the time of the wedding ceremony. The documents also establish the civil marriage in question was never subsequently validated in a church ceremony. After this administrative process is completed by the tribunal there is an opportunity to admonish parents regarding the fulfillment their parental obligations to the children born of the union. The Boston tribunal handles many of these cases each year.

After the administrative process is completed, either party would be free to marry in the Church. Neither is bound to the previous union because there was never a sacramental marriage in effect. Remember, marriage is brought about (c. 1057) through: (1) the consent of the parties (the bride and groom), (2) legitimately manifested, (3) by those qualified according to the law (again, the bride and the groom). From the outset it was never legally presumed that marriage had been brought about, as the parties never observed the correct form of marriage when they exchanged consent.

Next, the ministers' legal qualifications to place consent ...