The following is the conference given by His Lordship Tissier de Mallerais, President of the Canonical Commission, on the 24th of August 1998 during the canonical session held at Ecône and which appeared in the October 1998 Cor Unum. This exposé will help colleagues to better understand the foundation of our matrimonial tribunals which are a supplied authority conceived by Mgr Lefebvre.
[The original conference was given in French; the translation to English was done by Fr Jean Violette, SSPX].
Annulments granted by Novus ordo tribunals are often doubtful. Do we have the right to “supply” them with tribunals of the SSPX?
Archbishop Lefebvre [in his letter of 15 January 1991 to the Superior General, Fr. Schmidberger] had foreseen the creation of a Canonical Commission, in particular to resolve marriage cases after a first judgement given by the District Superior. The authority of our founder suffices for us to accept these instances in the same way as we have accepted the episcopal consecrations of 1988.
[The above-quoted letter of Archbishop Lefebvre does not mention marriage annulments at all, nor does it mention any District Superior judging marriage cases.]
But is this does not dispense us from trying to give a doctrinal justification for the existence and work of our tribunals.
We will see that the main reason like that of the episcopal consecrations is the case of necessity of the traditional faithful.
I. New definition of marriage:
a) Object of the matrimonial consent: it is no longer strictly defined as "jus in corpus, perpetuum et exclusivum in ordine ad actus per se aptos ad prolis generationem" [a right to the body, a right both perpetual and exclusive, for the purpose of performing the actions apt by their nature to procreate children] (can 1081 §2, 1917 Code of Canon Law), but vaguely described as "mutua traditio et acceptatio viri et mulieris ad constituendum matrimonium" [mutually giving and accepting one another for the purpose of establishing a marriage] (can. 1057 §2, 1983 Code of Canon Law). The object of the consent is thus unduly extended to the secondary elements which are non the less integral parts of marriage that is the "totius vitae consortium" [a partnership of their whole life] (can. 1055, 1983 Code of Canon Law)
b) Reversal of the two ends of marriage: Code of 1917: "finis primarius, procreatio et educatio prolis; finis secundarius: mutuum adjutorium et remedium concupiscentiae" [the primary object of marriage is the procreation and education of offspring; the secondary purpose is mutual assistance and the remedy of concupiscence] (can. 1013 §1). The new code: ... "ad bonum conjugum atque ad prolis generationem et educationem" [to the well-being of the spouses and the procreation and education of children] (1055 §1, 1983 Code of Canon Law).
Consequently the community of life enters, according to the new legislation, as a part and a principal part, of the matrimonial consent, and with it the inter-personal relationship between the spouses, i.e. their cohabitation, good understanding and mutual development.
But, according to the traditional concept, this is not part of the matrimonial pact as Pius XII reaffirmed against the innovators in 1944 by having inserted in the Acta Apostolicae Sedis a sentence of the Roman Rota [ASS 36 (1944), 172-200], which restates the hierarchy of the two ends of marriage and reaffirms that the "assiduous cohabitation, common bed and board, belongs to the integrity of individual life, not to the essence of conjugal life." (Papal Teaching Series, Matrimony, Solesmes, Appendix #24 - 29 p.550 - 556)
2. New defects of consent render marriage invalid.
It is obvious that if the "bonum conjugum" [the well-being of the spouses] and the "totius vitae consortium" [a partnership of their whole life] enter the object of the matrimonial contract, the defects, which from the beginning render the common life of the spouses impossible — and no longer solely the rendering of the "jus in corpus" [right to the body] - will render the marriage contract invalid. Therefore the new legislation introduces new impediments to contract marriage.
Of course the Church can always add, by positive dispositions, new impediments to marriage, but these are 1) positive laws not a change in the nature of things and consequently of the substance of marriage, 2) dispositions which determine clearly the inabilities in such a way that a judgement on the presence of such impediments is easily pronounced without fear of abuse. But precisely, such is not the case here; we have a change to the substance of the marriage and the door is open to every abuse as we will see.
Traditionally on the side of the intelligence only the following render the marriage invalid: 1) Ignorance of what marriage is: "a permanent society between a man and a woman for the procreation of children." (can. 1082 §1, 1917 Code); and this ignorance is not presumed after puberty. 2) Error concerning "unity or indissolubility or the sacramental dignity of marriage" if it determines the will (can. 1099, 1983 Code, codifying the traditional jurisprudence).
That is all. It is clear. But this "defectu discretionis judicii" [grave lack of discretionary judgement] that is to say lack of maturity in judgement concerns necessarily personal fulfillment, nay inter personal fulfillment as an essential obligations of marriage, which is traditionally outside the object of the matrimonial contract and concern the subjective aspect of the matrimonial bond. Certainly the growing lack of maturity in young people often render marriage less viable and imprudent, but to establish an incapacity on the grounds of lack of maturity is to put forward a personalist and subjective conception of the marriage contract and open the door to abuses. Only a stricter impediment of age would be an objective remedy.
Traditionally the Church only recognizes physical inability: impotentia [impotence] (can. 1068 §1, 1917 Code) which makes it impossible to render the "jus in corpus in ordine ad actus aptos..." [right to the body for the purpose of performing the actions apt...] (can. 1081 §2, 1917 Code). The only mental inability is "amentia vel dementia" [insanity], which render the subject radically incapable of contracting. (cf. can. 1081 § 1, 1917 Code "inter personas jure habiles" [between parties qualified thereto by law]).
Certainly cases of imbalance due to the destruction of the family are
frequent, which render the permanent union risky. But who will determine
what degree of imbalance makes contracting radically impossible? John Paul
II himself had to remind canonists that such psychic disorders must 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 78, 1987, p1457).
In its formulation can. 1095 n.3 remains an open door to abuses.
Until the new code, fraud was never admitted as matter for annulment; and this was to protect the permanence of the marriage bond. But authors such as Hanstein (in Kanonisches Eherecht, F. Schöningh, Paderborn, 1958, §33, p. 153) say the Church could by a positive law admit it: which would be legitimate when the fraud can jeopardize the primary end of marriage eg. fraud concerning sterility of one of the spouses; and this is what the new code has done: sterilitas, non dirimit, sed dolus circa sterilitatem [sterility doesn't invalidate, but fraud concerning sterility does] (cf. 1084 §3, 1983 Code).
But can. 1098 (1983 Code) is much too broad: fraud concerning drunkenness, drug addiction, - even an irascible character could be causes for annulment! We see here the conciliar personalist inspiration of this new canon. To reformulate it in a Catholic sense does not belong to us:
a) 80% of annulments granted by Novus ordo tribunals are granted in virtue of canon 1095! and therefore are invalid judgements since they rest on a rule incapable of ruling. Certain commentators even speak of "Catholic divorce" because it is so easy to obtain such judgements.
b) In cases where the grounds for annulments are serious but difficult to prove a tribunal invokes canon 1095 as an easy solution. But one could object: Since in this case the marriage is truly null why are we not able to take advantage of the easy sentence even if it is incorrect? Answer: in order to confirm the freedom to marry of a person a valid judgement is necessary, not a private appreciation plus an invalid judgement.
1. The faithful do not have the right to go to the Novus ordo tribunal, because they run the great risk of obtaining an invalid annulment, of remarrying and thus of taking the easy way out and living in sin, in "canonical concubinage"!
2. They cannot judge their own cause declaring their marriage invalid nor can they be content with the private appreciation of a priest friend (even traditional). This would be opening the door to subjectivism and disorder, exposing the marriage to contempt and only serve to increase the evil.
3. In justice they have the right to be sure the sacrament they receive a second time is valid. They therefore have a right to know that the declaration of nullity of their first marriage is valid, and be protected against personalist errors which invalidate these declarations. Who will do them justice?
4. Faithful priests and bishops have the duty of defending and protecting the marriage bond imperilled by the new legislation. How will they fulfil this duty?
To summarize: on the one hand the faithful not finding whom they can
go to are in the state of necessity and on the other hand faithful priests
and bishops have the duty to come to their help.
In this situation, the faithful bishops (Dom Licinio in Campos) and
our canonical commission founded according to the general principles of
law which govern the life of the Church, have supplied jurisdiction to
judge matrimonial cases.
1. can. 20 (1917 Code; also can. 19 in 1983 Code) says that if the law does not 'foresee a certain case, the case must be solved according to the norms "a legibus latis in similibus; generalibus juris principiis cum aequitate canonica servatis; jurisprudentia et praxi Curiae Romanae; communi constantique doctorum sententia" ' [taken from laws given in similar cases, from the general principles of law applied with the mildness proper to Canon Law, from the manner and the custom of handling similar cases in the Roman Curia, and from the common and accepted teaching of doctors]. (As Wernz and Vidal say : "jus ergo suppletorium est jus applicandum in particularibus casibus, cum circa illud non habeatur in codice prescriptum quod peculiari illi casui sit applicandum" n. 180). [therefore to supplement the law the law is to be applied in particular cases, when the rule to be applied in an extraordinary case is not found in the law]
2. Application — three things occur:
a) parallel place ie. the "analogia legalis" [analogy of law] (Wernz-Vidal n. 181): "per quam juris dispositio pro aliis casibus applicatur simili de quo lex non disponit" [through which the disposition of the law for other cases is applied in a similar way concerning what the law does not dispose]. Here the parallel place is the case when it is impossible to have recourse to the local bishop for the dispensation of a diriment impediment of ecclesiastical law: "in danger of death" or "quando omnia sunt parata ad nuptias" [when all is prepared for the wedding] the parish priest or confessor can dispense (can. 1044 -1045). This means the Church gives them supplied jurisdiction ad casum [for particular cases].
b) Practice (jurisprudence) of the Roman Curia: an answer from the Commission for the interpretation of the Code of July 29 1942 (AAS 34, 241) allows the extension of the dispositions of can. 1045 to the case of urgent necessity where there is "periculum in mora" [danger to morals] (cf. Can. 81)
c) Epikeia and the opinion of doctors concerning canon 1043 sq., but which also applies elsewhere: (Cappello, Tractatus de Sacramentis III ii. 199: "Si finis legis cesset contrarie pro communitate, ie si damnum commune inde sequatur, lex non urget, quia merito censetur suspendi ex benigna mentis legislatoris interpretatione" [If the object of the law remains in a way contrary to the community, that is if a damage would commonly follow from it, the law does not oblige, because it is thought to have ceased out of the kindly interpretation of the mind of the legislator].) This is the case of being obliged to have recourse to modernist tribunals. But if the obligation of recurring to modernist tribunals ceases, the obligation of recurring to some tribunal remains.
3. By joining all these elements we can infer that our canonical commission
in the actual case of impossibility of having recourse to the official
tribunals, has the power to judge matrimonial cases (we can say that the
Holy See, if it were not as modernist as the tribunals, would give us this
jurisdiction).
It is graver to dispense from a diriment impediment (which change the
condition of the person who from incapable becomes capable of contracting
marriage) than it is to declare a marriage invalid (which does not change
the condition of the person, but merely states a fact existing from the
beginning). It is only a declarative power of jurisdiction. So if supplied
jurisdiction is given to us to dispense, a fortiori it is given to us to
judge.
4. The institution of marriage tribunals in the orb of Tradition is
especially justified by the fact that:
a) their authority will be more easily accepted than a private opinion,
b) thus it will not be necessary to reject doubtful or contrary private
opinions,
c) many judges and instances are necessary in order to proceed prudently
and according to the spirit and letter of the law,
d) in the present case of necessity, a priest receives supplied jurisdiction
for what a priest can normally do by himself and not for what he cannot
normally do. But judging matrimonial cases is not normally done by a priest
but by the bishop or the authorities he has delegated.
In all this the rule "in as much as and no more than" applies: The Church supplies jurisdiction in favour of the faithful in as much as it is necessary and no more than is necessary.
As we have said our jurisdiction is supplied. Here are its properties:
a) It is not habitual, but only ad casum per modum actus [for individual cases and means of action]. Consequently we do not have standing tribunals, nor are their members named ad universas causas [for every reason], but on the contrary each time ad hoc, appointed by the canonical commission, even if for practical reasons and because experienced and competent persons are needed, the judges and defender of the bond are always the same.
b) The jurisdiction is not territorial but personal.
c) It depends on the necessity of the faithful ie., it lasts as long as the state of common necessity lasts, even if, per impossibile [through impossible circumstances], an official tribunal judging according to traditional norms could be found.
d) It is a true jurisdiction and not an exemption from the law and the
obligation the faithful have of receiving a judgement. Therefore we have
the power and the duty of handing down true sentences having potestatem
ligandi vet solvendi [the power of binding and loosing]. Our sentences
are therefore binding. The proximate reason is that we must be able to
tell the faithful what they must follow, quod debent servare. [what
they must obey]
Our sentences are not mere private opinions because such an opinion
do not suffice when the common good is at stake; and the common good is
at stake in every case where the matrimonial bond is discussed. To resolve
the doubt authority in the external forum is necessary.
e) This jurisdiction does not usurp any of the powers the Pope has of divine right. It is true that our sentences in the third instance replace the sentences of the Roman Rota which acts in the Pope’s name as third instance tribunals. But this is not an usurpation of divine right of the Pope because the fact that this third instance is reserved to the Pope is of ecclesiastical law.
f) Finally our sentences like all our acts of supplied jurisdiction and the episcopal consecrations of 1988 and 1991 etc., will ultimately need to be confirmed by the Holy See:
Pastoral charity aims at the sanctification of souls: prima lex salus
animarum [the salvation of souls is the highest law]; but pastoral
prudence does not impose unbearable burdens on souls. (Matt 23:4).
Consequently the pastor seeks to place souls in the truth regarding
God’s laws and the validity of marriage, but he will sometimes prefer leaving
souls in their good faith if they err in good faith concerning their matrimonial
situation, when he fears they will not accept to regularize it and so would
live in bad faith.
On the other hand marriage annulments given by official tribunals (we
can call them Novus ordo sentences) cannot be considered invalid Ipso
facto or valid without examination.
From this follows the following rules:
1. A Novus ordo sentence can neither be accepted nor rejected a priori. Its validity depends on the criteria used. It must be examined in jure [according to the law].
2. The priest must never advise the faithful to go to a Novus ordo tribunal for fear of an invalid declaration because it would be founded in jure [according to the law]. on erroneous or doubtful criteria of the new code.
3. If the person is not remarried, but has a doubt or denounces the validity of the first marriage or announces that the annulment case has been introduced in the Novus ordo tribunal, or that the said tribunal had given an annulment: the priest must warn that Novus ordo annulments are not sufficient proof of nullity of marriage and that he or she cannot remarry until we have studied the case.
4. If the person after a Novus ordo annulment has remarried the priest will leave him or her in good faith if he or she is in good faith. With this in view: a) he will never publicly speak of Novus ordo annulments, b) he will not interrogate the faithful on this matter, c) if asked by a person who has only a negative doubt the priest will reassure him.
5. If a remarried person has a positive doubt concerning a Novus ordo
annulment the priest must help him resolve the doubt. For this he will:
a) warn her about the possibility of an invalid annulment granted by
Novus ordo tribunal,
b) explain that for this reason and according to our practice, the
case has to be presented to the canonical commission.
6. To present any case before the commission the priest will:
a) have the case explained to him,
b) ask for the Novus ordo sentence or at least the tribunal document
indicating the "caput nullitatis" [the foundation for nullity],
c) transmit the information and the sentence to the commission who
will send a questionnaire destined to introduce the cause,
d) he does not give an opinion regarding the validity or invalidity
of the judgement or the marriage.
7. The cause can only be introduced if the person accepts to be morally bound by the decision. This is why the priest will ask him/her to make the following promise:
The promise to be sworn by
those who want their marriages annulled by the SSPX:
I the undersigned ________________________________________________
at the time of submitting my marriage case with __________________________
to the canonical commission of the SSPX promise:
A) (if such is the case) I will not attempt marriage either religious or civil before the final sentence.
B) I will conform myself to the decision of the canonical commission and consequently if it is negative I will not remarry, or (if such is the case) I will no longer consider my second spouse as my spouse.
C) I will not approach a Novus ordo official tribunal for the purpose of having my case examined or judged.
This I promise and swear having my hand on the Holy Gospels.
Date __________________________
Place __________________________
Signed _________________________
8. As long as the tribunal designated by the canonical commission has not handed an executory sentence "constat de nullitate matrimonii" [declaration of nullity of marriage], the second marriage contracted after a Novus ordo annulment (if it has taken place) is presumed valid and consequently the spouses of the second marriage can ask for and render the marital right and receive the sacraments.
9. But if the annulment proceedings have been introduced with the canonical commission and, having been warned not to remarry before our final sentence allows it, the person remarries or contracts a civil union, the sacraments must be denied and according to the judgement of the superior who has convened the tribunal the procedure may be stopped.