Excerpt
2
Table of Content
Introduction ... 3
Preliminaries ... 3
Nonconsummation of marriage. ... 3
Canonical provisions for the process of dispensation of nonconsummated marriage... 4
History of dispensation of nonconsummated marriage ... 4
PROCESS FOR THE DISPENSATION FROM A RATIFIED AND NONCONSUMMATED MARRIAGE ... 8
THE PETITION ... 8
Who can seek the dispensation? ... 8
Who can grant the dispensation? ... 9
INSTRUCTION OF THE CASE OF NONCONSUMMATION... 9
Who accepts the petition? ... 9
Cases with special difficulties ... 9
The competent tribunal/Instructor ... 10
Testimonies of witnesses ... 11
Experts' reports ... 12
Publication of the acts ... 13
TRANSMISSION OF THE ACTS TO THE BISHOP ... 13
TRANSMISSION OF THE ACTS TO THE HOLY SEE ... 13
RESCRIPT OF DISPENSATION ... 14
SAMPLES OF DISPENSED NONCONSUMMATED MARRIAGE ... 14
APPENDIX ... 16
3
Introduction
Canon 1141 states that marriage which is ratified and consummated cannot be dissolved
by any human power or by any cause other than death. However,
Canon 1142 gives an
exception that a
(ratified but)
non-consummated marriage between baptized persons or
between a baptized party and anon-baptized party can be dissolved by the Roman Pontiff
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 valid marriage between baptized persons is said to be merely
ratified, if it is not consummated; ratified and consummated, if the spouses have in a human
manner engaged together in a conjugal act in itself apt for the generation of offspring. To this
act marriage is by its nature ordered and by it the spouses become one flesh.
1
This means that
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
4
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 be
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,
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
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
5
Cfr. c.2,Comp, I, III, xxviiic.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.
6
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
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.
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- Ignatius Ayivor (Author), 2010, The Process of Dispensation in The Catholic Church. Non-consummated Marriage, Munich, GRIN Verlag, https://www.grin.com/document/383577
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