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Annulments and divorce
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Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 2:47 pm ]
Post subject:  Annulments and divorce

In the USA one is required to have civilly divorce before an annulment proceeding. While when one is dealing with a couple separated that believes their marriage never to have happened actually, this makes some sense in our country

What about if you do not wish to separate but there is doubt as to the validity of marriage?

In America we have perverted anullments into a matter of the Church sanctioning remarriages (not to mention the dubious grounds tribunals often cite...I remember reading through case studies where, even when a case sounded as if it were grounded, the court issued an annulment on other grounds not present!... and there is the common problem of viewing post marital problems, such as adultery, as "evidence" for annulment when it is usually nothing of the sort)

Well, I was reading a book which state (correctly methinks) that if one were to find out that their marriage was surely invalid they could not ask or render the marital debt (it would be fornication after all)...though the other partner might ask for it if he is ignorant. But then it got into the question of what one could do if they suspected, but weren't sure that their marriage was invalid. Leaving aside its discussion of the licity of sex in such a marriage, it stated (rightly I think) that the partner who suspects such a thing has a duty to investigate it and determine whether an impediment existed or no.

Now say you are married and you suspect that your marriage might be invalid, but it rests not merely on evidence but on some canonical issue so that you need expert help. Would American courts have a way of determining if your marriage was invalid? Of course there is then the question of convalidation if the impediment is removable or no longer existing, but what of it if the impediment is irremovable? You would then have to separate or live as brother and sister, but one would want to be sure before they had to do that, so is there a provision for such cases?

Author:  dinosaur [ Mon Jul 18, 2005 3:21 pm ]
Post subject: 

PED,

I am not entirely certain what you mean by:

Quote:
Now say you are married and you suspect that your marriage might be invalid, but it rests not merely on evidence but on some canonical issue so that you need expert help. Would American courts have a way of determining if your marriage was invalid?


It sounds as if what you're asking is whether a state court could help you determine whether your marriage is valid or not in a Catholic sense, since a civil divorce is required before you can get an annullment (and is that last statement true? You have to get a divorce before you get an annullment? I have no idea how it all works, but it sounds a little strange to me!)

If that is what you're asking then the answer would be "No, a state court would not get into the question of whether you have a valid marriage under Catholic principles, because of the separation of church and state. The ability to determine the validity of a marriage from a Catholic standpoint would rest solely within the Catholic Church, and no secular court in the US would dare try to answer that question."

I remember some time ago a NY court was asked to enforce a provision in a divorce decree between a Jewish couple that specified that the husband had to provide the wife with a "get," or Jewish divorce, which the wife needed to remarry in the faith. When the husband reneged on the promise, the wife sought court enforcement of the issue. The court declined to do so, citing church-state separation. I think the same type of reasoning would hold here - the court would have no competency in the matter.

Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 3:30 pm ]
Post subject: 

dinosaur wrote:
PED,

I am not entirely certain what you mean by:

Quote:
Now say you are married and you suspect that your marriage might be invalid, but it rests not merely on evidence but on some canonical issue so that you need expert help. Would American courts have a way of determining if your marriage was invalid?


It sounds as if what you're asking is whether a state court could help you determine whether your marriage is valid or not in a Catholic sense, since a civil divorce is required before you can get an annullment (and is that last statement true? You have to get a divorce before you get an annullment? I have no idea how it all works, but it sounds a little strange to me!)


American ecclesiatical courts... to be clear, not civil courts

And yes, in America we require divorce first...

Author:  Parizade [ Mon Jul 18, 2005 4:40 pm ]
Post subject: 

It's not always about remarriage. You need to have a previous marriage annulled if you are considering vocations too. That is why I got my letter of nullity taken care of, though I'm still not sure that is where God is calling me.

Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 4:48 pm ]
Post subject: 

Parizade wrote:
It's not always about remarriage. You need to have a previous marriage annulled if you are considering vocations too. That is why I got my letter of nullity taken care of, though I'm still not sure that is where God is calling me.

I understand that. just wondering wrt to those who want to stay married.

Author:  Edward Pothier [ Mon Jul 18, 2005 4:55 pm ]
Post subject:  Re: Annulments and divorce

Pro Ecclesia Dei wrote:
In the USA one is required to have civilly divorce before an annulment proceeding. While when one is dealing with a couple separated that believes their marriage never to have happened actually, this makes some sense in our country

What about if you do not wish to separate but there is doubt as to the validity of marriage?

In America we have perverted anullments into a matter of the Church sanctioning remarriages (not to mention the dubious grounds tribunals often cite...I remember reading through case studies where, even when a case sounded as if it were grounded, the court issued an annulment on other grounds not present!... and there is the common problem of viewing post marital problems, such as adultery, as "evidence" for annulment when it is usually nothing of the sort)

Well, I was reading a book which state (correctly methinks) that if one were to find out that their marriage was surely invalid they could not ask or render the marital debt (it would be fornication after all)...though the other partner might ask for it if he is ignorant. But then it got into the question of what one could do if they suspected, but weren't sure that their marriage was invalid. Leaving aside its discussion of the licity of sex in such a marriage, it stated (rightly I think) that the partner who suspects such a thing has a duty to investigate it and determine whether an impediment existed or no.

Now say you are married and you suspect that your marriage might be invalid, but it rests not merely on evidence but on some canonical issue so that you need expert help. Would American courts have a way of determining if your marriage was invalid? Of course there is then the question of convalidation if the impediment is removable or no longer existing, but what of it if the impediment is irremovable? You would then have to separate or live as brother and sister, but one would want to be sure before they had to do that, so is there a provision for such cases?

Unless I am mistaken, a marriage tribunal never declares that a marriage is valid. It just fails to grant the decree of nullity which would declare the marriage invalid. The marriage is then presumed to be valid, as it was before the tribunal proceedings. If later evidence or witnesses become available, it would be possible to re-file the case.

In terms of the licity of sex in a possibly invalid marriage, I believe that due to the presumption of validity until proven invalid, it would be licit (unless the person in question knowingly withheld information, consent, etc.).


Edward Pothier

Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 5:08 pm ]
Post subject: 

EP, as regards the licity of sex there was a lot of "in this case, but in this case" where I was reading... it depended upon what the suspect impediment was, how strong the doubt of validity was, whether it could be readily resolved, etc. I didn't want to give that part of the answer since it was clear that there was no hard and fast rule...but yeah, in general there is a presumption of good faith here.

So how would one go about clarifying a doubtful marriage?

Author:  Edward Pothier [ Mon Jul 18, 2005 5:16 pm ]
Post subject: 

Pro Ecclesia Dei wrote:

So how would one go about clarifying a doubtful marriage?


It could be that there is no such thing as a "doubtful marriage", at least until it is challenged. It also sounds like a Quantum Mechanics paradox in Physics. The presumption of validity holds, until a tribunal issues a decree of nullity (and sometimes a follow-up tribunal).

Note this is all fairly theoretical to me since I have been happily married for nearly 28 years. My only direct connection with marriage tribunal stuff is that I was once asked to fill out some questions for a couple I knew who later divorced.


Edward Pothier

Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 5:38 pm ]
Post subject: 

Edward Pothier wrote:
Pro Ecclesia Dei wrote:

So how would one go about clarifying a doubtful marriage?


It could be that there is no such thing as a "doubtful marriage", at least until it is challenged. It also sounds like a Quantum Mechanics paradox in Physics. The presumption of validity holds, until a tribunal issues a decree of nullity (and sometimes a follow-up tribunal).


Let's say you found out that your wife was your first cousin (a dispensable impediment).... you would agree that a dispensation would have to be gotten and the marriage convalidated, right?

Let's say that were living in the 1920's.... You were married in 1907 in the Province of Santa Fe. You ae Catholic, your wife protestant. You married in front of a justice of the peace. You discover that unlike the rest of the USA (where the Benedictive privilege ruled until 1908) Santa Fe followed Trent's decrees exactly...even two protestants had to obey canonical form. You married in good faith believing it to be licit at the time but run into this difficulty. Would you not be bound to inquire and have it convalidated if necessary

Of course thinking about it now it is hard to give examples. I mean either (as with the cousin case) it would be clear and you would just need a convalidation or to split (if perhaps it turned out to be a sister...) or it would have to be some odd technical point that I had to revert back 100yrs to think of one. And in that case a conditional convalidation could happen

So maybe this is mostly a moot question in today's day and age.

Author:  Pro Ecclesia Dei [ Mon Jul 18, 2005 5:48 pm ]
Post subject: 

As a last resort I have looked up my old casuitic manuals

It says that it is immoral to have sex if one of the partners knows the marriage is invalid. If one suspects it may be invalid he has a duty to investigate, but says that if it cannot be solved the marriage is assumed valid...but in the mean time it says that the party that doubts the validity can request the marriage debt but can render it...which always has seemed to me an odd distinction that made sense only in the context of when sex might be injurious to one party (eg. in the case that a husband has HIV, since the wife has a remote danger of death she needn't render the debt, but he must render if she request). This distinction seems odd here though...

Author:  Philothea [ Mon Jul 18, 2005 7:48 pm ]
Post subject: 

Pro Ecclesia Dei wrote:
Let's say you found out that your wife was your first cousin (a dispensable impediment).... you would agree that a dispensation would have to be gotten and the marriage convalidated, right?

Let's say that were living in the 1920's.... You were married in 1907 in the Province of Santa Fe. You ae Catholic, your wife protestant. You married in front of a justice of the peace. You discover that unlike the rest of the USA (where the Benedictive privilege ruled until 1908) Santa Fe followed Trent's decrees exactly...even two protestants had to obey canonical form. You married in good faith believing it to be licit at the time but run into this difficulty. Would you not be bound to inquire and have it convalidated if necessary

Of course thinking about it now it is hard to give examples. I mean either (as with the cousin case) it would be clear and you would just need a convalidation or to split (if perhaps it turned out to be a sister...) or it would have to be some odd technical point that I had to revert back 100yrs to think of one. And in that case a conditional convalidation could happen

So maybe this is mostly a moot question in today's day and age.

Even now, if there is an impediment of form, it must be corrected before the people can receive the Sacraments. So say two lapsed Catholics married before a JP--before they could receive any sacraments, they would have to have their marriage blessed in the Church.

Author:  Pro Ecclesia Dei [ Tue Jul 19, 2005 12:04 am ]
Post subject: 

Philothea wrote:
Even now, if there is an impediment of form, it must be corrected before the people can receive the Sacraments. So say two lapsed Catholics married before a JP--before they could receive any sacraments, they would have to have their marriage blessed in the Church.


Okay...how does that address my scenario (it was licit for a Catholic marrying a non Catholic to marry before a JP outside of Santa Fe...where even protestants were bouind to canonical form regardless of whether they were marrying a Catholic or no). My question concerns not when one knows there was an impediment, but when one suspects that there might have been

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