approach to declarations of nullity
a lecture given on August 28, 1998 by Bishop Tissier de Mallerais
The eternal salvation of souls is
our primary concern, from which two principles flow:
The priest has the duty to sanctify the faithful and, hence, to enable
them to be in a state in which they can sanctify themselves.
Pastoral prudence takes account of individual circumstances and does not
impose an unbearable burden on the faithful.
It follows, as a consequence,
that the priest must both:
Seek to guide the faithful to live in the truth, in the order of God’s
Respect the good faith of those souls who are (probably) in a false
situation, but in good faith, according to the principle that, it is better to
leave them in good faith, than to risk converting their material sin into a
These considerations, combined with the fact that we are often not aware of
the entire situation, and also with the fact that many post-Conciliar
ecclesiastical tribunals deliver judgments based upon true, traditional grounds,
as well as false grounds, means that we cannot automatically declare their
judgments to be invalid. They must be carefully examined.
The following rules are both
practical and canonical, and can guide the traditional priest in counseling his
A sentence pronounced by an official post-Conciliar ecclesiastical
tribunal cannot be, in itself, either accepted or rejected. Its validity will
generally depend upon the legal criteria, or grounds used for the judgment and,
consequently, it will have to be examined in iure, in order to find out if the
grounds were consistent with traditional jurisprudence and, in particular, to
exclude the grounds authorized by canon 1095, 2° & 3°, of the 1983 Code
of Canon Law, namely, lack of due discretion and psychological immaturity.
In principle, if traditional grounds is used, it will not be necessary to
re-examine the case in detail, and it can be accepted as is. However, on
occasion, some flippant tribunals do not examine the facts closely and so it
will be necessary to re-examine the case in facto.
priest will never counsel a person to go to a post-Conciliar
ecclesiastical tribunal. For there is a grave danger of a nullity being
pronounced in iure for one of the doubtful or erroneous grounds approved by the
New Code. It would then be impossible for the person to apply for an annulment
on true grounds and it is difficult for him to accept the Society’s decision,
if he has a post-Conciliar contrary decision.
When the person is not remarried, but questions the validity of his first
marriage, or has asked for and/or received a judgment in favor of nullity from a
post-Conciliar ecclesiastical tribunal, then the priest has the duty of
informing him that such a judgment is not sufficient proof that his marriage is
null and void, and that he cannot in conscience remarry, before submitting his
case to a traditional tribunal.
If, after having received a judgment in favor of nullity from a
post-Conciliar ecclesiastical tribunal, the person has, in good faith, entered
into a second marriage, the priest should leave him in good faith —if he is
still in it, and for this purpose he should:
Not speak publicly of post-Conciliar judgments of nullity.
Not question the faithful in this regard.
Reassure those, who have only a negative doubt, that this is a judgment of
the Church and that they need not be concerned about it.
If a person —who has married a second time after having received judgment
in favor of nullity from a post-Conciliar tribunal —has a positive doubt, either
because he is aware of the dubious grounds which were used in his judgment (in
iure), or because of positive reasons, drawn from the previous marriage, which
make him doubt the validity of the judgment (in facto), then the priest cannot
leave him in doubt, but must attempt to resolve it in favor of the truth. For
this he will:
Warn the person of the possibility of the nullity of the judgment by the
Explain that the doubt can only be resolved by submitting the case to the
Refrain from giving his own personal opinion on the validity of the
judgment, or of the subsequent marriage. His personal opinion is of no juridical
value, and could easily adversely affect the decisions of the party concerned.
Ask for a summary of the case, request that the person obtain a copy of the
judgment of First Instance and prepare a libellus to submit to the Society
An action cannot be introduced before our tribunals, unless the concerned
party agrees in advance to be morally bound by the decision. Hence, at the time
of the citation, after the introductory libellus, the concerned party will be
asked to swear under oath and sign the following promise:
I, ............................................., desirous of obtaining a
decision in conformity with traditional Catholic principles, freely submit my
marriage with ........................... to the tribunals of the Society of
St. Pius X, and I promise:
That I will not attempt to enter any
marriage, religious or civil, until such time as the tribunals of
the Society have rendered a final judgment concerning my freedom to
That I will accept the tribunals’
decision, whatever it is, and that, if it decides against the
nullity of my marriage, I will not marry again or, if already
remarried, I will no longer consider my second partner as a spouse.
That I will not request a judgment or reexamination of my case by a
post-Conciliar ecclesiastical tribunal.
All this I promise and I swear on the Holy Gospels, which I now touch with my
For as long as the Society’s Canonical
Commission has not made a final
judgment that constat or non constat de nullitate matrimonii, the post-Conciliar
tribunal’s judgment of nullity and the subsequent marriage (if it has already
take place) are to be considered as valid. In consequence, the spouses can
request and render the marriage debt and they cannot be refused the sacraments
on account of this subsequent marriage.
The reason for this is that there is a presumption in favor of the judgments
of the Church, which benefit from the presumption of law, and must be accepted
as true and just (canon 1904, °1) unless overturned. This is an application of
the principle melior est conditio possidentis. Even the use of canon 1095 for
the judgment does not remove this presumption, for the faithful are not to be
expected to make such subtle distinctions. Furthermore, there are often other
grounds for nullity, which were neglected for expediency, and it would be unjust
to forbid the use of marriage and to overturn the presumption, before a full
examination had established the reality.
If a process for nullity has been opened with the Society’s tribunals
and the faithful have been warned not to marry again, before the final judgment
of the Canonical Commission, and yet they attempt marriage in a religious or
civil ceremony, the sacraments can be refused and the process for nullity
suspended, subject to the judgment of the superior who constituted the tribunal.