The declarations of nullity given by post-Conciliar ecclesiastical tribunals
are often doubtful. Do we have the right to supply for this deficiency, by the
means of tribunals functioning within the Society of St. Pius X?
Archbishop Lefebvre foresaw the necessity of creating a Canonical Commission,
in particular in order to resolve marriage cases after an initial judgment by
the district superior. The following text from a letter that he wrote to the
Superior General on January 15, 1991, is quoted in the Society’s Regulations:
Inasmuch as the present Roman
authorities are imbued with ecumenism and modernism, and that their decision and
the new law are as a whole influenced by these false principles, we must
institute authorities to supply for these deficiencies, which faithfully adhere
to the Catholic principles of Catholic Tradition and Catholic law. It is the
only way to remain faithful to Our Lord Jesus Christ, to the Apostles and to the
deposit of the Faith, transmitted to their legitimate successors, who remained
faithful until Vatican II.
He continued indicating that
these commissions ought to start modestly, according to necessity, and should be
a service to help priests resolve difficult cases in their ministry. The central
reason for our marriage tribunals is, consequently, that they are necessary for
the souls of our traditional faithful.
I. The new
legislation on matrimony
The New Code of Canon Law gives a new definition of marriage,
"totius vitae consortium ...ad bonum conjugum atque ad prolis generationem
et educationem." Note the inversion of ends with respect to the
traditional teaching, and the priority given to the spouses’ own good,
according to the personalist conception.
The 1917 Code teaches, to the contrary, the distinction of two subordinated
ends: finis primarius: procreatio et educatio prolis; et finis secundarius:
mutuum adiutorium et remedium concupiscentiae. In the inversion of these
ends the New Code makes the ambiguous statement of Vatican II more clear, cf. Gaudium
et spes 48, °1: "vinculum sacrum intuitu boni, tum conjugum et
prolis, tum societatis ..."
The consequence is that the matrimonial consent is no longer considered as a "ius
in corpus, perpetuum et exclusivum, in ordine ad actus per se aptos ad prolis
generationem" (canon 1081, °2), but as a "totius vitae
consortium" (1983 Code, canon 1055, °1), that is as an interpersonal
relationship, which is characterized by certain qualities, which can make it
either possible, or difficult, or even impossible (cf. canon 1057, °2 of the
However, the qualities of this relationship are, according to the traditional
conception, outside the marriage contract. Pope Pius XII reaffirmed this, in
opposition to novel ideas, when he required that a judgment of the Roman Rota be
included in the Acta Apostolicae Sedis (AAS 36 (1944), 172-200). After a
reminder of the two ends of marriage, their hierarchy and their subordination,
the judgment affirms that:
A matrimonial contract can be validly concluded with respect to the
principal right, even if it explicitly excludes secondary rights ...Cohabitation
and regular sharing of bed and table belong to the integrity of individual life,
but not to the essence of conjugal life ...Common life, sharing dwelling, bed and
table do not belong to the substance of marriage ...The well known definition, or
rather the description that Modestinus gave of marriage —Marriage is the union
of a man and a woman, consortium totius vitae et communicatio iuris divini et
humani —lists at the same time elements which constitute it essentially and
those which are its natural consequence, without any order of dependence among
them being clear. That is why one cannot, from this well know description of
marriage, understand the ends of marriage. This can only be done with prudence
and making the necessary distinctions. The giving of the right, to this kind of
mutual help, is not necessarily required in order to validly contract
It is clear that if the "totius vitae consortium" enters
into the object of the matrimonial contract, those defects, which render the
community of life between the spouses impossible from the beginning, also
invalidate the matrimonial pact. It is certainly true that the Church can, by
positive law, add new impediments to marriage.
These are, however, changes in
rules, which do not indicate a change in the substance of the sacrament of
marriage and which determine in a very precise manner the circumstances, which
make a person incapable of entering into a marriage contract, in such a way that
it is easy to make a judgment on the presence of such impediments, without fear
of abuses happening. But this is exactly what is not the case here, for there is
a change in the conception of the substance of the sacrament, opening it up to
all kinds of abuses.
The following three examples are taken from the
1983 Code of Canon Law:
1. Canon 1095, °2:
Sunt incapaces matrimonium contrahendi.... qui
laborant gravi defectu discretionis judicii circa iura et officia matrimonialia
essentialia mutuo tradenda et acceptanda.
This is opposed to the traditional teaching, according to which there are
only two grounds for nullity, and which come from a defect in the intelligence:
Ignorance that marriage is "a permanent society between a man and a
woman to engender children" (canon 1082, °1), which ignorance is not
presumed after puberty.
Error on the unity or indissolubility of marriage, if it determines the
will (cf. canon 1099 of the 1983 Code, which codifies the traditional
jurisprudence on this point).
Whereas the traditional teaching is simple and clear, the
New Code’s defect
of due discretion - that is of immaturity of judgment - necessarily bears on a
personal and interpersonal accomplishment of the essential obligations of
marriage, which is outside of the traditional object of the marriage contract,
and concerns rather the subjective aspect of the matrimonial bond. It is
certainly true that the growing immaturity of modern youth often makes their
marriages imprudent and unlikely to last. But to establish an incapacity of
marrying, on the basis of immaturity, is to invoke a personalist and subjective
interpretation of the matrimonial contract, and to open the gate to abuses.
2. Canon 1095, °3:
Sunt incapaces matrimonium contrahendi..qui ob
causas naturae psychicae obligationes matrimonii essentiales assumere non valent.
The only physical incapacity that the traditional teaching of the Church
recognizes is that of impotency (canon 1068, °1), for it renders impossible the
giving of a "ius in corpus in ordine ad actus per se aptos... (canon
1081, °2). The only mental incapacity is amentia or dementia,
which render a subject radically incapable of entering into a contract (cf.
canon 1081, °1: "inter personas iure habiles").
Without doubt, there are now many cases of disequilibrium, due in large part
to the destruction of the family, which make a permanent marriage union a chancy
thing. But who can determine what degree of disequilibrium renders it radically
impossible? John Paul II himself has had to remind canon lawyers that such
psychological disorders must, in order to invalidate marriage, 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 79 (1987), 1457). Despite this reminder,
1095, °3 remains an open door to abuses.
3. Canon 1098:
Qui matrimonium init deceptus dolo, ad obtinendum
consensum patrato, circa aliquam alterius partis qualitatem, quae suapte natura
consortium vitae conjugalis graviter perturbare potest, invalide contrahit.
Until the 1983 Code, deceit was never accepted as a grounds for nullity of
marriage, and this in order to protect the permanence of the conjugal bond.
However, the authors admit that the Church could introduce, in her positive law,
deceit as a grounds, especially if the deceit concerned something necessary to
the primary object of marriage, such as the bonum prolis (e.g., one of the
spouses deliberately hiding the fact that he/she was sterile).
But canon 1098 of the 1983 Code is much broader than this, and includes such
deceit as the hiding of drunkenness, drug addiction, or even an angry
temperament, which would make the common life impossible. The personalist
inspiration of this new canon is quite clear and such that we cannot accept it.
Nor is it our place to reformulate it in a Catholic sense.
Alas, 95% of the declarations of nullity made by post-conciliar tribunals
base them on canon 1095. We must consider these judgments as null and void.
"Catholic divorce" is even spoken of - so easy is it to obtain a
favorable judgment in virtue of this canon.
Very often - even when there are real grounds to establish nullity, but which
are difficult to prove - the conciliar tribunal will opt for a declaration, in
virtue of canon 1095, as an easy way out. We are told, then, that such a
marriage is truly null and void, even if the judgment is defective. Why not
simply take advantage of the judgment in favor of nullity, even if it is not
correct? To this we must respond that an individual opinion does not suffice and
is no more useful than an invalid judgment. There must be a valid judgment of a
tribunal to make known the public fact that a person is free to marry.
II. What are
traditional Catholic faithful to do?
They do not have the right to go to
Conciliar ecclesiastical tribunals.
For to do this would be to run a great risk of receiving an invalid declaration
of nullity. Any subsequent marriage would be living in sin and would be,
effectively, a canonical concubinage.
They cannot, in order to marry again, themselves judge of the nullity of
their marriage, or simply be satisfied with the opinion of a priest friend, for
marriage is a question of the public good. This would be to open the door to
subjectivism and disorder; it would put down the matrimonial bond and further
increase the confusion and scandal.
They have, in justice, the right to be certain of the validity of the
sacrament which they received at a second marriage and, hence, of the validity
of the judgment of nullity. They have, therefore, a right to be protected
against the personalist errors which invalidate these sentences. If we do not
protect these rights, who will?
Faithful priests and bishops have the duty to defend and protect the
marriage bond which is endangered by the new legislation. How are we to
accomplish this duty? The faithful, not knowing where else to turn, are in a
state of necessity, and their priests and bishops have the duty to help
them. In this situation, faithful bishops and our Canonical
Commission, founded on the general principles of law which govern the life of
the Church, have the powers of supply to judge marriage cases.
doctrinal basis of our powers of supply
1. Canon 20 (1983 Code,
canon 19): When there is no determination of law for
a particular case, then it must be resolved by taking the rule:
legibus latis in similibus; a generalibus iuris principiis cum aequitate
canonica servatis; iurisprudentia et praxi Curiae Romanae; communi constantique
Wernz-Widal explains this:
Ius ergo suppletorium est ius applicandum
in particularibus casibus, cum circa illud non habeatur in codice praescriptum
quod peculiari illi casui sit applicandum (no. 180).
2. Three ways of applying this principle exist:
Consultation of parallel places, according to the principle of analogia
legis (Wernz-Vidal, no. 181): "per quam iuris dispositio pro
aliis casibus applicatur in casu simili de quo lex non disponit". Here
the parallel case in the Code is that of impossibility of having recourse
to the bishop in order to dispense from an impediment of ecclesiastical law. In
danger of death or when omnia parata sunt ad nuptias the parish priest or
confessor can dispense (canon 1044 & 1045). This signifies that the Church
supplies them with the jurisdiction, ad casum.
Style or jurisprudence of the
Roman Curia: A response from the Commission for the interpretation of the
Code given on July 29, 1945 (AAS, 34, 241) enables us to extend the
disposition of canon 1045 to the case of urgent necessity or when there is "periculum
in mora" (cf. canon 81).
Epikeia and the opinion of
the docotors with regard to canons 1043 et sq. is thus expressed by
Cappello in his treatise De Sacramentiis, III, no. 199: "Si
finis legis esset contrarie pro communitate, i.e. si damnum commune inde
sequatur, lex non urget, quia merito censetur suspendi ex benigna mentis
legislatoris interpretatione". Thus it is that the legal obligation of
having recourse to post-Conciliar tribunals is suspended. However, the
obligation of having recourse to a truly Catholic tribunal is not suspended.
3. Given all these
considerations, we conclude that our Canonical Commission - in the present case
of moral impossibility of having recourse to post-conciliar tribunals - has the
right to judge marriage cases. If the Holy See was not as modernist as the
tribunals, it would give us this power by Canonical Equity.
In fact, it is more serious a
thing to dispense from a diriment impediment in virtue of canon 1045 - for this
changes the condition of a person and makes him capable of contracting marriage
- than to make a declaration of nullity of marriage. For such a declaration
does not, in effect, change the condition of the person, but simply makes a
statement about the condition that the person was already in ab initio,
i.e., from the beginning of the marriage. It is, consequently, only
a declaratory power of jurisdiction. If, therefore, the power of supply
gives us the authority to dispense in certain cases, how much more does it give
us the authority to make a simple declaration of nullity.
The exercise of the right of judging marriage cases
Since our jurisdiction is only a
supplied jurisdiction, it has the following properties:
It is not habitual, but is exercised ad casum, per
modum actus. Consequently, our tribunals do not sit in a habitual
manner and their members are not named ad universas causas, but only each
time that it is necessary ad hoc casum. This is the case even if,
for ease of function and to maintain competency and consistency, these are
usually or always the same defenders of the bond and the same judges who are
It is not territorial, but personal.
It depends on the necessity of the faithful, and,
consequently, only lasts for as long as the common necessity lasts. It
will continue if the impossible were to happen and we could find one or other
tribunal to judge marriage cases uniquely according to traditional norms.
For in this case, the common necessity would remain.
It is a true jurisdiction, and not an exemption from the
obligation to receive a judgment from the Church. Consequently, we
have the power and the duty to pronounce true sentences, which have the
potestatem ligandi vel solvendi. They, consequently, are imposed
obligatorily on the faithful who request them. The proximate reason for
this is that we must be able to tell the faithful what they must do to save
their souls - quod debent servare.
Our judgments are, consequently, not simply private opinions, for these could
not possibly suffice when the public good is involved, as it is with every case
in which the matrimonial bond is examined. In order to remove the doubt,
our tribunals must have authority in the external form.
This supplied jurisdiction does not usurp any papal
authority or divine right. This question could only arise when our
judgments in the third instance replace the judgments of the Roman Rota, which
acts in the name of the pope when it judges as a tribunal of third instance.
However, this is not an usurpation of the pope's power of divine right, since
the reservation of this third instance to the pope is but an ecclesiastical law.
Finally, our judgments, as all our acts of supplied
jurisdiction, and the episcopal consecrations of 1988 themselves, will one day
have to be confirmed by the Holy See.