Q: I read “Marriage and Annulment,” in which you state that “children who are born of a valid or of a putative marriage are legitimate,” and that “a putative marriage is one into which at least one of the spouses entered in good faith.” Could you please explain this further? I’m in the midst of an ongoing discussion-dispute with a friend who left the Church because her husband got an annulment. She insists it means the Church is saying her children are illegitimate, and she refuses to accept this. I don’t know how to respond to this argument and could use some pointers… –Gabe
A: There is a lot of confusion regarding the illegitimacy—or not—of children born to parents whose marriage is later declared null by a Catholic marriage tribunal. On the surface, it seems obvious: obtaining a declaration of nullity of your marriage means that you were never married, as your marriage was invalid from the very start. And if you were never married, but had children together … that means the children aren’t legitimate, right? After all, “illegitimate children” are those whose parents are not married!
Superficially, this may appear to be a perfectly logical argument—but in reality, as was briefly touched on in “Can Children Have Any Input in Their Parents’ Annulment Proceedings?” it contains a tremendous theological flaw. At issue here is the Church’s understanding of what makes a marriage, and the undeniable fact that one spouse might be just going through the motions, saying whatever needs to be said at the wedding, without meaning any of it … while the other might give theologically flawless consent. Marital consent has been discussed many times before in this space (in “Contraception and Marriage Validity,” “Canon Law and Fraudulent Marriages,” and “Sacraments and Personal Identity,” among others), but let’s quickly review the basics and then the answer to Gabe’s question should make sense.
In “Marriage and Annulment,” cited by Gabe, we saw that consent makes a marriage. Contrary to popular understanding, the Catholic sacrament of matrimony is not administered by the cleric who celebrates the wedding! Other Catholic sacraments, like baptism, confirmation or anointing of the sick, are administered by the bishop, priest or other officiating minister—and since the Catholic clergy know what is required for validity when they administer a sacrament, we routinely presume that they have the requisite intention when they do so. As any Catholic theology student should be able to tell you, when the right intention is combined with proper matter and form, they all together make a sacrament valid.
But in the case of Catholic marriage, the sacrament is being administered by the spouses themselves, to each other, when they exchange consent. It is critical for validity, therefore, that they both have the right intention. A perfectly formed act of consent by only one of the spouses is insufficient to make the marriage valid, if the other spouse’s consent was defective or even nonexistent (i.e., if he/she was merely mouthing the words without meaning them).
This is, incidentally, one reason why marriage-annulment cases can frequently become so acrimonious. In many cases the spouse who seeks a declaration of nullity is the one who was at fault, because his/her defective consent (or lack of consent altogether) is what the marriage tribunal establishes to have invalidated the marriage. But if the other spouse, whose consent may have been given correctly, doesn’t want the marriage annulled, he/she may object vociferously that “I know this is a real marriage!” (See “Can I Get an Annulment, If My Ex-Spouse Refuses to Cooperate?” for more on this kind of scenario.) What can complicate the equation immensely and cause a lot of heartache is that from his/her point of view, this may technically be true: as already mentioned, one spouse can indeed intend to enter a marriage exactly as the Church understands it—while the other spouse can invalidate the whole thing with his/her faulty consent.
This is where the concept of a putative marriage fits in. Canon 1061.3 defines the term, explaining that a putative marriage is an invalid marriage with at least one party who celebrated it in good faith. Note that while we’ve been speaking here about the defective consent of one of the spouses, there are other reasons why an invalid marriage can be a putative one: for example, it could also happen that an impediment exists at the time of the wedding, which neither spouse was aware of—or, if they were aware of it, they didn’t realize was enough to invalidate the marriage. A concrete example should help to illustrate this.
Let’s pretend that Margaret and Henry are both 14-year-old Catholics and they want to get married. In their country, however, the civil law does not permit the marriage of anyone younger than 16 years of age; but somehow they manage to convince a priest that they are both 16 and he then celebrates their wedding. Imagine that in their region of the world, marrying at this age is culturally quite common, and so the priest is doing nothing out of the ordinary by agreeing to their marriage.
But let’s say that while Margaret and Henry know that the State required them to be older than their 14 years, they had no knowledge whatsoever of the Church’s age requirement as found in canon 1083.1, which says that for validity, a couple cannot marry unless the man is at least 16 years old and the woman is 14. (See “Can a Catholic Ever Elope?” and “What Does it Mean to Have Your Marriage Blessed? (Part II)” for more on this marriage impediment.) In other words, they entered into what is in fact an invalid marriage in the eyes of the Church, but they both did so in good faith. This sort of situation does not involve defective consent, but it nevertheless meets the definition of a putative marriage.
Now let’s return to reality, focusing on the scenario which Gabe describes, and the legitimacy (or not) of the children born of his friend’s invalid marriage. Gabe tells us that the friend’s husband has already obtained a declaration of nullity of their marriage, which of course means that they were never really married in the eyes of the Church. We don’t know the precise reason(s) why this marriage was found to be null; but if it involved a finding of defective consent on the part of only one of the spouses, or the presence of an invalidating impediment that was not known to at least one of the spouses … that would indicate that the other spouse may very well have entered into the marriage in perfectly good faith, and have given proper consent to the marriage (even if the other one didn’t). In these circumstances, their invalid marriage could be said to have been a putative one.
Canon 1137 declares that in the eyes of the Church, the children conceived or born of a valid or a putative marriage are legitimate. That’s because even though something happened to render the marriage invalid, there was still at least one spouse who genuinely intended it to be a real marriage from the start!
So when, in the eyes of the Church, are the children of invalid marriages considered to be illegitimate? Even without knowing any more canon law than has already been provided here, readers may be able logically to deduce the answer. Imagine a marriage which is found to be null by a diocesan marriage tribunal, on the grounds that both spouses simulated consent. Let’s say that both bride and groom went through with a Catholic wedding, not because they intended to be married in the Catholic sense of the term, but for some other reason. For example, maybe their parents object strenuously to their living together without the benefit of marriage, and the two don’t want to be disinherited by their families as a result—so before and during the wedding they go through the motions, and pretend to acquiesce in everything the Church teaches, without actually intending any of it. Or perhaps one spouse is a foreigner in an illegal immigration status, and is looking for a way to remain legally in the country—and the other spouse agrees to a wedding simply to help him/her out. There are plenty of possible reasons why a man and a woman might both “fake” a Catholic marriage, with both spouses declining to consent to any of it! While the term is not found in the Code of Canon Law (but cf. c. 1101.2), canonists refer to this as total simulation.
In this kind of situation, it’s impossible to say that at least one spouse gave consent correctly and intended a marriage in good faith—because neither of them did. The whole thing was a complete sham, and so this cannot be said to be a putative marriage. Consequently, any children born of their union would not be considered by the Church to be legitimate, as per canon 1137, mentioned above.
While we’re on the subject, what difference does it make, practically speaking, whether the Church considers children to be illegitimate or not? Nowadays, you could certainly say that the social relevance of legitimate/illegitimate birth is far less than it once was. (To cite one example, we saw in “Why Would an Illegitimate Man Be Barred From the Priesthood?” that in years gone by, the Church did not want to ordain illegitimate men as priests.) But bear in mind that culturally, the Catholic Church’s position on your status as a legitimate/illegitimate child may still make a huge difference in the particular society where you live. Who knows, maybe the person whom you someday want to marry will reject you solely because the Church says you’re not legitimate!
But on top of that, depending on where in the world you are located, the Catholic Church’s position on issues such as illegitimacy can have civil effects—if your civil government has signed a concordat with the Vatican that provides for this. We took a look at how concordats work in “Why is the Marriage Tribunal Insisting That I First Need a Divorce?” It’s possible that Country X has a concordat with the Vatican, which says (among many other things) that the Church’s finding as to the legitimacy/illegitimacy of an individual will be accepted by civil authorities. If so, then perhaps the Church’s position will affect the person’s ability to inherit from his/her father’s family under civil law—which in the case of a wealthy family could have an enormous impact on the child in question. In short, it’s not safe to presume that just because (il)legitimacy isn’t a big deal in your nation, the situation is necessarily the same worldwide.
So what’s the final answer to Gabe’s question? Well, as already mentioned, we don’t know the grounds for the annulment of his friend’s marriage; but if it was found to be null because of defective consent on the part of only one of the spouses, it’s fairly safe to conclude that this was a putative marriage—in which case the couple’s children are indeed considered legitimate in the eyes of the Catholic Church. Here’s hoping that Gabe now has the factual information he needs, to explain to his friend what canon law really says on this matter, and to allay her concerns about the legitimacy of her children.
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