Q: I was explaining the basic notions about marriage to a group of teens and they created a hypothetical scenario: A couple is on a trip in their boat. One morning the wife awakes and notices that her husband is gone. After an intense search, the Coast Guard concludes that he fell off the boat and died, although the body was not recovered.
Two years later, the lady marries again in Church, because her husband was declared dead. But later the first husband reappears and says he was kidnapped by pirates and just got liberated. Which of the two men is the legitimate husband? Which marriage gets the declaration of nullity? Teens have a very creative imagination and I am not qualified to provide a decent answer to that scenario. –Javier
A: Javier’s clever teenagers might think they have stumped the Catholic Church by inventing a novel situation, but in fact the scenario they describe is far from unique. Particularly in wartime, any Catholic whose soldier-spouse is missing in action and presumed dead will encounter the very same problem, if he/she eventually remarries and the first spouse later turns up alive after all. That’s why the Church has beat these teens to the punch, and has already explained the proper procedure to use in the Code of Canon Law. Let’s take a look.
First of all, as we’ve seen many times before in this space, Catholic theology holds that marriage is for life, and canon law always follows theology. Once one has validly married, and the marriage has been consummated, only death can dissolve it (c. 1141; see also “Canon Law and Consummating a Marriage” for more on dissolving an unconsummated marriage).
Javier’s teenagers are on-target when they envision that the wife in their imaginary scenario must obtain an official declaration that her husband is presumed dead. In this type of case, since there is no direct official evidence of the husband’s death (such as an ordinary civil death certificate, or a record in a parish registry attesting to a funeral), canonically the wife does not have the authority to decide on her own that she is now a widow and free to remarry in the Church. More is needed, and canon 1707 explains what procedurally must be done.
The first paragraph of this canon notes that whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not regarded as free from the bond of marriage until the diocesan bishop issues a declaration that death is presumed. The next paragraph provides a general description of what the bishop has to do: he can only make such a declaration after investigating the circumstances, hearing the testimony of witnesses and reviewing other relevant evidence—and reaching “moral certainty” concerning the death of the spouse (c. 1707.2).
Moral certitude is a concept that comes up rather frequently in moral theology, and also in the canons of the code pertaining to court procedures. This term could be said to be the theological approximation of the civil-law standard of “beyond a shadow of a doubt.” In other words, the Church acknowledges that the decision-maker is neither omniscient nor a mind-reader, so unless he actually witnessed an incident himself, he can’t necessarily know the truth with 100% empirical assurance. As a human being, with all the limitations that we humans have, the most he can do in many situations is to conclude that based on the existing proofs, he is truly certain that X is the truth. The possibility always exists, however slight, that he is wrong! But in many cases, practically speaking, achieving moral certitude is the best that any mere mortal can do—so the Church accepts it as sufficient.
And issuing a declaration of the presumed death of a spouse is one of these cases. The same canon 1707.2 just mentioned also notes specifically that the mere absence of a spouse, even for a very long period, does not in itself constitute sufficient evidence that he/she may be dead, so more proof is needed. A couple of concrete examples may serve to illustrate this more clearly.
Let’s say that Margaret’s husband Jeff is a soldier fighting the enemy in a tropical jungle. Several of his fellow servicemen saw him running ahead of them before he totally disappeared from view. They discover a pool of quicksand in the area where Jeff was running, and since it encompasses the whole area, there is no conceivable way he could have avoided it. There’s no body and no eyewitness evidence, but Jeff must have fallen into the quicksand, because he couldn’t have gone anywhere else! If Margaret later wants to remarry in the Church, the testimony of her husband’s fellow-soldiers, and a description of the terrain involved, might easily convince her bishop to issue the declaration of presumed death required by canon 1707.
But not every case is going to be so clear. To take another example, let’s imagine that Sally and Mark have been married for several years, and one day Mark comes home from work to discover that Sally has completely disappeared. There is no evidence of foul play, and even after an extensive search the police cannot locate any sign of her. Sally simply vanished without a trace! Now let’s say that after three years, and no news about Sally, Mark wants to remarry in the Church. Can he?
As sad as it may seem, under such circumstances the diocesan bishop would be hard-pressed to issue a declaration of Sally’s presumed death. It’s quite possible that despite the lack of evidence, Sally was abducted and killed—but it’s just as possible that Sally secretly decided to leave her husband and has run off with another man. Sally may be alive and well—and, having successfully evaded the police searches, she may be living a new life in a far-away city. Given the total lack of evidence either way, it’s difficult to envision a bishop finding any grounds for moral certitude in such a case.
Now we’ve seen in general how the process should work. But to return to Javier’s question, let’s imagine that a spouse has indeed obtained a declaration of presumed death of a spouse, and has remarried in the Church. At some point after the second marriage, the first spouse turns up, very much alive! What happens now?
The answer to this reasonable question is actually not spelled out in the code—because it follows logically from the Catholic theological understanding of what marriage is all about. As was noted at the beginning, the Church teaches that marriage is for life, and so if the first spouse is really still alive, then the marriage has not ended! Therefore if the (very human) bishop has reasonably—yet erroneously—concluded after an appropriate investigation that the spouse must be dead, and the survivor remarried, the second marriage is in fact not valid. Note that this is certainly not the fault of any of the parties involved.
So if the original spouse later turns up, the non-widow(er) has to separate from the second spouse and return to the first. Obviously this is going to be a very painful experience for all three of them! But despite everybody’s good faith, and regardless of what the remarried spouse might personally prefer to do, there is just no way that the second marriage is valid. That’s because only death—and not a piece of paper from the bishop—can actually dissolve the first marriage. “No death” means “no dissolution.” It’s as simple as that.
While this tragic set of circumstances fortunately doesn’t happen every day, the scenario does arise frequently enough that the Church determined it was best to spell out the right way to handle it from a procedural standpoint. Combine the procedure explained in the code, with Catholic teaching on the indissolubility of marriage, and Javier’s teenagers have the answer to their very good question.