Is lack of commitment in marriage a cause of annulment?

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Photo: Shutterstock
Photo: Shutterstock

Dear Father, Following up what Pope Francis said about many marriages being null because the spouses are caught up in the culture of the provisional and are unable to commit to permanence, would this really be a cause of nullity? 

The first thing to say is that marriage, before being a sacrament, is a natural institution which has existed since Adam and Eve and which people of all civilisations and cultures down the ages have had.

As described in Australian law, it is the union of a man and woman to the exclusion of all others voluntarily entered into for life. Anyone can enter into a valid marriage and the Church regards the marriage of any two non-Catholics of whatever religion as valid, provided it was celebrated in some civilly valid way and there is no natural impediment to it, such as being bound by the bond of a prior marriage.

In short, it is not difficult for someone to enter into a valid marriage.

This applies all the more to Catholics. The Church does not set the standard for validity so high that only highly educated, well informed and strong willed people can reach it.

You don’t need a degree in theology to marry validly! The Church wants everyone to be able to marry validly and so the requirements are easy to meet. The spouses must simply not positively reject any of the essential elements of marriage.

For example, as regards knowledge of what marriage is, Canon 1096, 1 of the Code of Canon Law says that in order for consent to exist the contracting parties must be “at least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of some sexual co-operation”. This is very basic knowledge and everyone who has reached puberty is presumed to have it (cf. Can 1096, 2).

After all, the phrases “until death do us part” and “all the days of my life” given in the exchange of consent in the wedding are well known and are accepted by all couples marrying in the Church.

Even if a person is in error about the indissolubility of marriage, they can still consent validly as long as their error does not “determine the will” (cf. Can 1099). That is, only if this error causes the person to choose something other than true marriage will it lead to invalid consent.

Thus there is a difference between merely thinking that marriage can be dissolved by divorce and marrying with the express intention and condition that it be dissoluble by divorce. In this latter case error determines the will, so that if the marriage broke up and it could be proved that the person had expressed this condition at the time of the wedding, the marriage would be invalid.

Most people marrying in the Church do not have such an intention and, indeed, if the priest or deacon preparing the couple for the wedding were aware that they did, he could not proceed with the wedding. The person or persons with that intention would be denying an essential property of marriage, its indissolubility, and so the marriage would be invalid and it could not go ahead.

This is made clear in Canon 1101, 2, which says that if either of the parties “should by a positive act of the will exclude marriage itself or any essential element of marriage or any essential property, such party contracts invalidly”. Indissolubility is an essential property of marriage. So simply marrying in error about the permanence of marriage does not make it invalid. A positive act of the will to exclude it is needed.

What about the situation Pope Francis describes, where there is a widespread culture of the provisional and, as he said, “the spouses say ‘Yes, for the whole of our life’, but they do not know what they are saying, because they have a different culture. They say it, and they have good will, but they lack true understanding.” Would their marriage be null on this ground? Not easily. The couple do understand that marriage is for life even though they are confused about what this means.

Perhaps nullity could be proved under Canon 1095, 2, which says that among those incapable of contracting marriage are “those who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted”.

Here the couple accept the indissolubility of marriage in theory but they suffer from a grave lack of understanding about what this means in practice and they would be incapable of contracting a true marriage. Some marriages might be null on this ground but certainly not a great majority.