Introduction

Canon 1141 states that  marriage which is ratified and consummated cannot be dissolved by any humanpower or by any cause other than death. However, Canon
1142  gives an exception that a (ratified but)  non-consummatedmarriage between baptizedpersons or between a baptizedparty and an unbaptizedparty can be dissolved by the RomanPontiff for a just reason, at the request of both parties or of either party, even if the other is unwilling

 The author will explain briefly the meaning of non-consummation and give some historical instances of the dispensation of the marital bond of non-consummated marriage. He will then deal with the canonical process of dispensation of non-consummated marriage with some sample cases of non-consummated marriages which were dispensed in record time.
Preliminaries
Non-consummation of marriage.
For a marriage to be regarded as consummated, the couples are to engage in a sexual intercourse after the valid celebration of the marriage. The code of Canon law states the required modo of this conjugal act that qualifies it be a consummation of a particular marriage. Canon
1061 §1 articulates that a validmarriage between baptizedpersons is said to be merelyratified, if it is not consummated; ratified and consummated, if the spouses have in a humanmannerengaged together in a conjugalact in itself apt for the generation of offspring. To this actmarriage is by its natureordered and by it the spouses become one flesh. [1]

This means that for the marriage to be consummated the spouses must have sexual intercourse together and in a manner that is human and is geared towards procreation. There should be no use of contraceptives or any instruments that can render the act unnatural. In the absence of the conjugal act which is apt for bearing of children even if it does not result in conception, the marriage is not consummated. The fact that the husband may be sterile or the woman may barren is canonically irrelevant in this case.[2]
Canonical provisions for the process of dispensation of non-consummated marriage

The third chapter of Book VII of the 1983 Code of Canon law deals with the process of dispensation of ratified but non-consummated marriage in ten canons (cc 1697-1706)[3]

History of dispensation of non-consummated marriage

It was Pope Alexander III (1159 – 1181) who contributed much to the teaching of the church on marriage. He settled the controversy between the schools of Paris and Bologna concerning essentials of marriage. He gave approval to the teaching of the doctors of Paris that marriage is contracted by the consent of the parties (per verba de praesenti), while he rejected the teaching of the canonists of Bologna that until consummation the parties are not strictly speaking married, and that the consent is no more than a solemn engagement to enter the married state.[4]

The school of Bologna put forward a number of reasons on account for which a man might cancel the matrimonium initiatum, in order to be free to remarry. However, Pope Alexander III, though regarded the consent to be the effective cause of marriage, gave a teaching that not until the marriage is consummated the bond was capable of dissolution. It was not indeed, as Bolognese doctors had held, open to the parties to break their contract of their own accord in certain recognized cases. But where there was sufficient reason, the Pope could authorize dissolution of the marital bond.

Pope Alexander III believed that such dispensations were not without precedent. He gave an interpretation of the much canvassed letter of Gregory II to St. Boniface, in which permission is granted for a man whose wife has been attacked by incurable sickness to take another partner. He also dealt with a case in which one partner of a non-consummated marriage had entered the religious life and permission was granted to the other partner to remarry,[5] while for some unrecorded reason he refused a similar request from another applicant.[6]

 Similarly, the pope granted a dispensation from a matrimonium ratem on the ground of supervenient affinity.[7] Also, on two occasions, he exercised the same right on the ground of antecedent impotency.

 In the French church impotency was regarded as a diriment impediment to marriage, but in the Italian church, there was a different view. The Italian church regarded impotency not as a diriment impediment but valid, and the parties were to be exhorted to live as brother and sister.[8] The Pope recommended the Italian practice as more correct, but at the same time was in favor of the practice of the French church. He allowed remarriage to persons who had separated from a partner incapable of the conjugal act.[9]Only to a small extent did Pope Alexander’s successors apply the principles which he had laid down.

Pope Urban III (1185-1187) dissolved a non-consummated marriage, where the bride had been attacked by leprosy.[10] One of the decretals in which the permission was granted, known as Ex Publico, is of special importance. In that decretal, the Pope stated the doctrinal reasons which justify the step.  According to the words of Our Lord Jesus Christ, it is not lawful for a man to dismiss his wife except for the cause of fornication. These words were viewed as the sacred utterance of Jesus Christ and were to be understood as applying to those whose marriage has been consummated.[11] The Pope, in other words, taught that only when man and wife have in fact become “one flesh” is marriage altogether indissoluble and that where the condition is unfulfilled, the church has power to loose the bond; meaning there cannot be a dissolution except through the church’s sentence. [12]

 Pope Gregory VIII (1187) , during his short pontificate granted a dispensation on the ground of impotency,[13]although, Clement III, his immediate successor, within a year, refused a similar request and bade the bishop forbid the parties by threat of excommunication to separate from each other. [14]

 Innocent III (1198- 1216) seemed to have been opposed to any dissolution of marriage. With regard to impotency ,he accepted, the French view and held it as a diriment impediment to marriage, rendering the marriage invalid ab initio.

Gregory IX (1227- 1241) restricted the scope of the dispensation of non-consummated marriage within a narrow limits. He published in the church’s official code, that dispensation of non-consummated marriage is only permitted through religious profession, and on that ground alone.


 Moreover, the decisions regarding dispensation of non-consummated marriage of the previous Popes, which made for various views underwent amendment at the hands of Raymond of Penafort, such that impotency was treated as diriment impediment, and the letters in which Alexander III recognized the French practice as valid for that country, appeared in a form which gave them general force, and no more local force.

 The system embodied in the Decretals of Gregory IX seems to have been accepted by subsequent Popes and the dissolution of matrimonia rata seems to have ceased, except in the case of religious profession and was not held to need a papal permission. Not until the reign of Martin V ( 1417- 1431) do we hear of any further dispensation of non-consummated marriage. However, it is possibly doubtless that some of the Popes might have exercised the right of dispensing non-consummated marriage, but the evidence of the fact is wanting.[15]

 PROCESS FOR THE DISPENSATION FROM A RATIFIED AND NON-CONSUMMATED MARRIAGE

 The process is meant for dissolving a non-consummated marriage. We can refer to this process as dispensation as it appears in the Code of Canon Law. The parties have the right to seek this dispensation; no other person can claim any right to seek dispensation for the couples. This process is not a judicial one, rather it is administrative. The diocesan Bishop can ask an instructor to deal with the case usually at a diocesan level. 

 THE PETITION
Who can seek the dispensation?
The spouses alone, or one of them even if the other is unwilling, have the righ to seek the favor of a dispensation from a ratified and non-consummated marriage. No other person can do this on their behalf or on behalf of one of them. There is need to petition the diocesan Bishop for this dispensation. However, if the case of non-consummation arises during the course of judicial process of nullity of marriage, it is then withdrawn from the judicial platform and forwarded to be processed as an administrative act by the Bishop or by his lawful delegate.

 Who can grant the dispensation?

 It is only through the judgment of the Apostolic See, that dispensation of non-consummation is executed. The Apostolic See is the only person who can give judgment: on the fact of the non-consummation of a marriage and the fact of the existence of a just reason for granting the dispensation. When the case has been properly instructed at local level, the petition and the acts are sent to the Congregation for Divine Worship and the Discipline of the Sacraments, which recommend to the Pope the granting of the dispensation. The dispensation per se is given by only the Roman Pontiff, who by virtue of the vicarious power he wields from Christ as a Vicar of Christ can dissolves the marital bond of ratified but non-consummated marriage.

 INSTRUCTION OF THE CASE OF NON-CONSUMMATION

 Who accepts the petition? 

 The diocesan Bishop of the place of domicile or quasi-domicile of the spouse-petitioner is the competent authority to accept the petition for the dispensation of non-consummated marriage. The diocesan Bishop examines the request and if it contains reason(s) to justify its instruction he arranges for the instruction of the case. 

 Cases with special difficulties

 If the proposed case has special difficulties of a juridical or moral order, the diocesan Bishop is to consult the Apostolic See. Recourse to the Apostolic See is available against the decree of a Bishop who rejects the petition. 

 The competent tribunal/Instructor
The Bishop is to assign the instruction of these processes, in a stable manner or case by case, to his own tribunal or to that of another diocese, or to a suitable priest. He can entrust the instruction of the process to an ecclesiastical tribunal or to a suitable priest. It does not matter whether the instruction is carried out in a diocesan tribunal or one pertaining to another diocese. The liberty of the Bishop in choosing tribunal to instruct the process also extends to the possibility choosing a suitable priest in a stable manner or for individual cases.[16]

 In case a judicial plea has been introduced to seek declaration of the nullity of the same marriage, the instruction of the process is not to be assigned to a different tribunal but to the same tribunal which started the process. If doubt about non-consummation surfaces during the course of a trial of matrimonial nullity, independent of the controversy which is being dealt with within the trial, especially if it is a case in which the nullity is examined due to impotency, the tribunal can examine the case of non-consummation due to impotency.[17]   The participation the defender of the bond in these processes is necessary and eh must be given the opportunity to intervene. Tough an advocate is not admitted, the Bishop can, because of the difficulty of a case, allow the petitioner or respondent to have the assistance of an expert in law to assist as an advisor.[18]

 In the course of the instruction of the process both parties are to be heard. As far as possible, the provisions of the collection of evidence in the ordinary contentious process and in cases of nullity of marriage are to be followed. The essential facts that must be proven are the fact of non-consummation and the fact of sufficient reasons or just causes. 

 The circular letter De processu gives a series of norms which are relative to the instruction stage during which the couples and their dispositions in the process are relevant. Testimonies concerning the credibility of the parties and their witnesses should be obtained with the help of their pastors.[19]

 Non-appearance of the parties in the process must conform with the norm of law and be sated in the acts.[20] The parties and their witnesses (the number of witnesses to involve in the process depends on the judgment of the instructor) [21]must take oath to tell the truth[22] and answer questions posed by the instructor and the defender of the bond servatio modo praescripto.[23] In questioning the woman concerning non-consummation the instructor should engage the service of a medical doctor whom he must name ex-officio.[24]

Testimonies of witnesses

 The witnesses should give a moral argument about:
i)what they heard on the parts of the spouses, their relatives, or others regarding non-consummation.
ii)when they heard such declarations
iii)how they arrived at a knowledge of the facts   

 Experts’ reports
Experts should give physical arguments. One or more experts should be involved in producing physical arguments for or against non-consummation. A report of one expert can be sufficient;   however, it is better to resort to two or more. 

 In case of discrepancy between the reports of two or more experts, the person more expert than the ordinary expert (the peritissimus), the one who is supremely expert over all others will be named to settle the question.[25] The experts also take the oath before discharging their function. They should be given the acts of the case and any other relevant documents.

 The corporal inspection of the woman will only occur if it is necessary to attain moral certitude concerning non-consummation. It can be omitted if the moral argument leads to moral certitude of the instructor. If the instructor judges that other medical questionings should be made privately, the resulting documents and certifications should be added to the acts of the case.[26]

 Publication of the acts

There should be no publication of the acts; except if the instructor or the tribunal sees that, because of the evidence submitted, a serious obstacle stands in the way of the plea of the petitioner or the exception of the respondent, he can prudently make it known to the party concerned. To the party requesting it the judge can show a document, which has been presented as evidence, which has been received, and he can set a time for the production of arguments.

 TRANSMISSION OF THE ACTS TO THE BISHOP

The tribunal as an administrative body or the instructor must complete instructing the case super rato and then forward the acts to the diocesan Bishop together with the petition for dispensation, the comments of the defender of the bond and the voto of the tribunal/instructor.

Upon reception of the acts and other documents, the Bishop must add his personal opinion with regards to the facts of non-consummation and the favorable ground for the dispensation.[27]

 TRANSMISSION OF THE ACTS TO THE HOLY SEE

The Bishop is to transmit all the acts to the Apostolic See, together with his voto and the comments of the defender of the bond. If, in the judgment of the Apostolic See, a supplementary instruction is required, this will be notified to the Bishop, with a statement of the items on which the acts are to be supplemented. If the answer of the Apostolic See is that the non-consummation is not proven from the evidence produced, then the expert in law can examine the acts of the case, but not the voto of the Bishop, in the tribunal office, in order to decide whether anything further of relevance can be brought forward to justify another submission of the petition.[28]

 RESCRIPT OF DISPENSATION

The rescript of dispensation is sent by the Apostolic See to Bishop. The Bishop is to notify the parties of the rescript, and direct the parish priest of the place where the marriage was contracted and of the place where the baptism was received, to make a note of the granting of the dispensation in the registers of marriage and baptism.[29]

 SAMPLES OF DISPENSED NON-CONSUMMATED MARRIAGE
[30]

1. A and B were married as Roman Catholics in 1994; H was still in the army, and decided they should not have children until they had a home of their own. One attempt to consummate the marriage failed. Three years later, H sought dispensation on the grounds of W's refusal to consummate the marriage.

2. Throughout the marriage, H insisted on intercourse only by coitus interruptus in spite of W's repeated protests: W's parents had been first cousins and H was determined that W should not conceive, and therefore they could not consummate their marriage and they sought dispensation.

3. D and E married, and found W was physically unable to consummate the marriage. E underwent surgery and they tried again, but were prevented by W's emotional state. H then declined to try further and D petitioned for annulment on the grounds of non-consummation.

ENDNOTESnd P had a sexual relationship until G was sent to prison. They married while he was in prison, but he rused to consummate the marriage at the time and later said he did not want to live with P even after he was r
[1]Can. 1061 §1. Matrimonium inter baptizatos validum dicitur ratum tantum, si non est consummatum; ratum et consummatum, si coniuges inter se humano modo posuerunt coniugalem actum per se aptum ad prolis generationem, ad quem natura sua ordinatur matrimonium, et quo coniuges fiunt una caro.
[2]Cfr. c. 1084 §3. Sterilitas matrimonium nec prohibet nec dirimit, firmo praescripto can. 1098.
[3] See Appendix
[4] Cfr. George Hayford Joyce, Christian Marriage: An Historical and Doctrinal Study, SHEED AND Ward, London & New York, 1933. p. 427.
[5] Cfr. c.2,Comp, I, III, xxviii-c.2, X, III, xxiii; c.7, Comp, I, III, xxviii- c.7, X, III, xxxii.
[6] Cfr. c.5 (7), Comp, I. IV, iv  “ Sane quanquam mulieri desponsate et a viro nondum cognitate liceat ad religioem transpire, aliam tamen non potes ducere in uxoem” .
[7] Cfr. c.3. Comp, II, IV, xiii- c.2, X, IV, xiii.
[8] Cfr. c.2, Comp. II., IV, ix- c.4, X, IV, xv.
[9] Cfr. c.3. Comp. I, IV, xvi- c.2, X, IV, xv, c.1, Comp., II, IV. Ix- c.3, X,IV, xv;  Cfr. George Hayford Joyce, Christian Marriage: An Historical and Doctrinal Study, SHEED AND Ward, London & New York, 1933. p. 429.
[10] Cfr. c.3, Comp., I, IV, viii,- c.3, X, IV, iii  Qiua postulasti, unum sipost sponsalia (de futuro) inter legitimas personas contracta, antequam mulier a viro traducatur, alter eorum leprae morbum incurrat, alius ad consummandam copulam compelli debeat: Respondemus quod ad eam accipiendam cogi non debet, cum nondum inter eos fuerit matrimonium consummatum.
[11] Ibid, p. 428.
[12] Cfr. c.5 (7), Comp. I, IV, iv. Quia quanvis exinde sit diversa quorundam sentential et non eadem consuetude Ecclesiae, tutuis tamen videntur, ut primum habere debeat quam secundam, cum a prima sine judicio Ecclesiae separari non debeat.
[13] Cfr. c.2, Comp. II, II, x- c.4, X, II, xix;  George Hayford Joyce, Christian, op. cit.
[14] C. 4; Comp. I IV, xvi; George Hayford  Joyce, Christian, po. Cit. p. 430.
[15] Ibid.
[16] Cfr. Ernest carparros, (ed) Exegetical Commentary on the Cod of Canon law, Vol VI/2, Wilson & lafleur, Monstreal, 2004. p. 199; SCWD, Litt. De processu super matrimonio rato et non-consummato, No. 7
[17] Cfr. c. 1963. 2 CIC/1917; O. Buttinelli, “Le procedure per lo scioglimento del vinculo matrimoniale. II processo di dispenso del matrimonio rato et non-consummato. Le face davanti al Vescovo diocesano”in I procedimienti speciali nel diritto canonico (Vatican City, 1992) p. 114.
[18]The procedure is administrative seeking a favor, not a judicial one to obtain a right
[19] SCDW,  Litt. De processu super matrimonio rato et non-consummato , Dec 1986, # 8 in Comm. 20 ( 1988). p.  80.
[20] Cfr. can. 1592.
[21] Cfr.  SCDW,  Litt , op cit. # 13.
[22] C. 1532.
[23] Loc. cit.   #11;  Cfr. cc.  1564 1561,.
[24] Cfr.. SCDW,  Litt, op. cit.  # 12
[25]  Ibid, # 20
[26] Ibid, #19
[27] Cfr. SCSDW, Litt,  op cit.  # 7
[28] Cfr. can.  1705. 1.
[29] Cfr. can. 1706
[30] These samples were extracted from an archived documents whose identities are withheld by the author  and for the sake of anonymity of  the parties involved in the said cases, their names were replaced with letters which do not even  point to their initials.

 


Comments

11/04/2010 10:31

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