Valid & Invalid Consent in Marriage

Stuart James at eChurch blog (@eChurchBlog on Twitter) has asked a question: "does Canon Law forbid the mentally ill to marry?"

The answer is no, but this post is an attempt to address that question in a little more detail, however in order to understand the answer, we need to layer a bit of information first; we need to understand what the Church considers marriage and what it deems valid and invalid consent to marriage, as well as a little about what canon law is for.

Marriage is a natural right and it includes the right to contract marriage and the right to choose a partner freely. As marriage is a state of life sanctified by a special sacrament it is obviously of great importance (cf. LG 35). By choosing to marry according to the teaching and precepts of the Catholic Church, and holding to the rights and responsibilities such a covenantal relationship conveys the married couple are free to adhere fully to Jesus. For example, Joseph Ratzinger, in his book Daughter of Zion (San Francisco: Ignatius, 1983), speaks of marriage as the form of the mutual relationship between husband and wife that results from the covenant, the fundamental human relationship upon which all human history is based. (p. 23).  When these principles form the foundations which constitute a marriage, the resultant example and witness such a Christian family demonstrates to society, accuses the world of sin by its ontological reality, it’s profound beauty also enlightens and informs those who are seeking truth. (cf. LG 35).

Freedom then, can be seen as a vital constitutive element in human relationships. We need to be free to adhere, to consent to bestow and accept each other, and it is this which constitutes the indispensable element that makes marriage: concensus facit matrimonium (cf. GS 48, Canon 1057 § 1). It is in this context that one can begin to understand the importance and relevance of Canon Law in regard to marriage. When we consider Canon Law in the light of the Church as communio (Gk: koinonia), one may understand how the will of Christ, ut omnes unum sint, (“that they may all be one, even as thou, Father, art in me, and I in thee, that they also may be in us” Jn 17:21) is the origin of the Church’s juridical elements. (cf. Ferme, B., Gabiola, J., The Code of Canon Law (Birmingham: Maryvale, 1998), p. 3. Keeping in mind that marriage is far richer, for both civil society and Church, than its juridical component alone may suggest, I want to try in this post, to investigate the rationale behind the provisions in the code of Canon Law that deal with matrimonial consent. I will thus describe the conditions required for valid consent and the circumstances that may render consent invalid.


Canon Law has long considered the moment in a marriage when the two parties become husband and wife.  When considering the body of knowledge incorporated into the Church’s understanding of canonical marriage, it is worth considering the deep and extensive understanding it benefits from through centuries of careful development, which have lent the process great juridical coherence. 

The relevance of conjugal intercourse within the contractual process was debated for centuries by canon lawyers. The elements of marriage as a sacrament needed to be balanced in this debate, thus by the middle of the 13th century, the efficient cause of marriage had been identified as the mutual consent expressed in words. Marriage is brought into being by the lawfully manifested consent of juridically capable parties according to the code of 1983 (Canon 1057). This means that there is no essential difference between a consummated or yet to be consummated marriage as it is the matrimonial consent that fully brings about the juridical marriage bond. This constitutes a revision of the 1917 code which took the object of marital consent to be ius in corporis, expanding the concept beyond the merely biological function to incorporate the giving and receiving of the whole person in order to establish marriage (cf. Beal, J. P., Corridem, J.A., Green, T. J., (Editors), New Commentary on the Code of Canon Law (New York: Paulist Press, 2000), p. 1252). This totality of mutual giving was expressed by Vatican II as 

“rooted in the conjugal covenant of irrevocable personal consent. Hence by that human act whereby spouses mutually bestow and accept each other a relationship arises which by divine will and in the eyes of society too is a lasting one.” —GS 48

This “external manifestation of internal consent” prescribed by canon 1104 also must be received by the Church’s authority (Canon 1108) by taking place before the local Ordinary or parish priest or the priest or deacon delegated by either of them. The commitment being made must be understood. Canon 1057 explains matrimonial consent as an act of the will by which a man and a woman mutually give and receive each other in an irrevocable covenant in order to establish a marriage. As expressed in the quote from Gaudiem et Spes above, this mutual bestowing or self-donation, refers specifically to the conjugal aspect of the human person. Thus it is a self-donation of sexual capacity which involve a union of life and love open to children and subject to unity and indissolubility.

Canon Law holds to the assumption that the internal commitment of a party conforms to the words or external signs used (Canon 1101). This is reflected in most legal systems, which presume this as a point of common sense, indeed, whether you are religious or not, it is demonstrable that what you outwardly say in a marriage ceremony necessarily has an internal effect: you become legally married. The “favour of the law” is enjoyed by marriage so that the law dictates for the validity of the marriage till the contrary is proven. Canon Law could possibly be accused of focussing or emphasising on the external elements of consent, perhaps seeming over legalistic, were it not for the earnest primacy placed on internal consent. The best way to demonstrate the emphasis placed on this is by consideration of anomalies of consent.

Defective Consent

Defective consent is related to the volitional, cognitive or critical faculties. The concern of the law is that the essential information about marriage is understood. It is a consortium between a man and a woman, a heterosexual partnership requiring mutual support, cooperation and companionship. That this partnership is permanent; that it is a stable relationship that perdures. This relationship must be “ordered towards the procreation of children by some form of sexual cooperation” (Canon 1096). This means that if one party or another did not know about the necessity of sexual intercourse in order to have children the consent would be substantially vitiated. For this reason, the canon expressly states that such ignorance is not presumed after puberty. In 1988 and 1989, Pope John Paul II removed any ambiguity attached to canon 1095 with respect to defects affecting the exercise of the intellect. He asserted that the canon referred to the power to reason—the faculty to judge, and the power to discern. This clarified that canon 1095 refers to defects of the faculty or power to pass discretionary judgements due to a lack of capacity to truly commit. Ignorance, in this context, means a lack of knowledge concerning the substance of a thing, whilst error means defective knowledge about an element of that particular thing. Ignorance thus prevents choice because it makes it impossible to illicit judgement whilst error leads to a false choice as it leads to a false judgement concerning a known object. However, canon 1099 does not state that error regarding the unity, the indissolubility or the sacramentality of marriage is sufficient to vitiate matrimonial consent, unless this error is what determines the will. This is a common contemporary problem, so many marriages end in divorce in today’s society, the media coverage and secular social opinion could possibly mean that a person could be under the erroneous understanding that marriages break up and that the marriage they are entering into may well end in divorce, which would dissolve the marriage, dependent on the arbitrary will of either party. It can be stated with some confidence that contemporary society frequently misunderstands the sacramental reality of marriage, choosing to see it purely on human terms. The sacramental element is perceived as a formality, or an irrelevance and not taken seriously. The question is does this error about indissolubility prevent a person from eliciting at consent an intention to be faithful for life? Love inclines people to wish everlasting permanence for their marriage and to take the decision that they will be faithful to the other party in spite of whatever obstacles may have to be overcome, even if the other party were not to be faithful.

It is clear that this would mean that the person’s will would not be affected by the error, even though they might be aware of the possibility of divorce and consider that this would dissolve the marriage bond, the intention at the point of consent was to make a lifelong commitment. The decision to marry has not been mitigated and their remains a over-riding desire for a permanent, procreative union, thus this error does not vitiate consent. This is known, in Canon Law, as simple error.

An alternative scenario could be that a person was convinced to marry because they could dissolve the marriage and try a new marriage with someone else. In this instance, it could be that it is the error that has provided the vital impetus to marry, like a safety net or a get out clause. At the moment of consent, the decision for marriage was made with under the influence of error. This “stubborn error” (error pervicax) does not remain speculative; it becomes practical and affects the decision to the point of “determining” it.  Thus the consent is insufficient for marriage, the stubborn error influences the will vitiating the marriage bond.

Another type of error that invalidates a marriage would be in respect to the person. Canon 1097 warns of the risk of finding oneself married to a different person than was intended. Although this may seem very unlikely in contemporary society, although it is possible where the betrothed couple have restricted access to each other (Jacobs marriage to Leah for example would be invalid for just this reason). This canon also addresses error regarding a certain perceived trait or characteristic of an intended marriage partner. So where one anticipates one is marrying because the prospective spouse is perceived as having a certain social standing, or perhaps as being particularly devout, rich, or similar, and this does not turn out to be true, one might be shocked and unhappy. The discovery of this error may lead one to be unhappy about the marriage, however the marriage with that individual has not been truly rejected, thus the consent is valid. There is, however, an exception to this rule where the perceived quality takes precedence over the person, in other words, where the quality is the principal reason for the marriage. An example of this could be virginity, especially in a cultural context where virginity was considered vital in order that a marriage be considered valid. In this instance, it could be asserted that the virginity of the bride was “directly and principally intended.” (Canon 1097)

A further type of error is detailed in canon 1098, where a person might deliberately conceal the presence (or indeed, absence) of certain qualities about themselves in order to obtain consent. The canon itself states it:

…a person contracts invalidly who enters marriage deceived by malice (deceptus dolo), perpetrated to obtain consent, concerning some quality of the other party, which by its very nature can gravely disturb the partnership of conjugal life. (Canon 1098)

This means concealing a condition such as sterility, mental illness, some genetic abnormality, a bi-sexual orientation, alcoholism, a criminal record or a serious life-threatening condition such as AIDS (cf. Canon 1098). Of course, the spouse may forgive such deception, it is only in a circumstance where the discovery of the fraud causes the marriage to irrevocably breakdown that consent is considered defective and the marriage thus invalid. Consent is not an exchange of abstract rights but the emotional and psychological union of two persons, an exchange of these persons themselves. However a marriage needs to be built on mutual trust and it may conceivably be altered significantly by a deception such as this so as to be rendered completely non-existent.

With regards to the will, defects concern simulation, condition, fear or force. Faith is one of the fundamental realities of human social contact, exercised as much in our relationships with each other as in respect of the unseen heavenly reality of the Triune God. If a person says something, it is presumed to be true. In the same way, canon law anticipates that any outward expression of consent reflects the internal consent of the will. This is expressed in canon 1101, §1. Simulated consent, then, is explained in §2 of the same canon as a perversion of the internal intention, that is that the positive movement of the will of one or both parties contradicts what they purport to commit to, i.e. marriage itself. If one party states “yes I do” but actually makes an internal rejection of the form of marriage, marriage is excluded by an act of the will. A deep-seated error which influences the will can be the basis for a denial not only of the right to indissolubility but also of the rights to marital fidelity and potentially procreative intercourse.

Consent is similarly vitiated if one or other party wishes to contract a marriage with “special features”; bigamy or a marriage ad experimentum. Here the person involved is actually rejecting marriage and choosing instead some other pseudo-institution. This is called partial simulation.

Condition may invalidate marriage in an situation where the outcome is beyond the control of either party. “I will marry you if you bear me a son” for example, is invalid (canon 1102 §1). Such a condition is incompatible with the totality of self-giving of the spouses as well as threatening the principle of indissolubility integral to marital consent. Canon law has dealt with this by pre-empting such action, and partners may have beforehand knowledge of what they are doing. Canon 1102 emphasises the invalidity of a marriage where conditions about future events are included in the consent. The code does mitigate that conditions that ensure a spouse is a virgin, or does not have a hereditary disease are only conditions is a partial way, thus this canon also states that, when the consent includes a conditioning concerning the past or the present, the marriage is valid or not according to whether the basis of condition exists or not. Either way it is clear in the code that the placing of conditions is imprudent and so it states these “cannot be placed licitly without the written permission of the local ordinary.” (Canon 1102 §3).

The last defect of will is force; “grave fear or force imposed from outside causes the nullity of the marriage” (Canon 1103). The freedom to choose a spouse and whether one enters into the married state or not are fundamental human rights. Force or grave fear must necessarily be inflicted from outside the person, natural or intrinsic causes (illness or remorse for example) are not included here,  but where it does, even if imposed unintentionally, but which results in the person being compelled to choose marriage in order to be free from coercion or fear of violence causes the nullity of such a marriage (Canon 1103). Marriage is built on a mutual free exchange of love and trust of the spouses, forced consent due to external pressure—be it physical threats of actual bodily harm, or some form of psychological coercion—contradicts the nature of marriage and is thus unjust. Grave and persistent indignation of a father or superior may induce a reverential fear that vitiates in practice a free consent to marriage.

Finally, the code makes provision for people who have a lack of capacity for consent and these are listed in canon 1095 of the 1983 Code as being incapable of contracting marriage. Since valid consent results from the harmonious interaction of a person’s mental faculties, these being the cognitive, the critical and the volitional, one must be capable of a conscious, responsible and free act of will in order to consent to marriage. Because of this, canon 1095 states that those “who lack sufficient use of reason”, or “suffer from grave lack of discretion of judgement”, or are unable to assume “the essential obligations of marriage due to causes of a psychic nature” are incapable of contracting marriage. Lack of sufficient use of reason includes children under the age of seven or those who, at the moment of consent suffer a psychic disturbance on account of hypnosis, alcohol, intoxication, effects of drugs, etc. This amounts to a person’s ability to reason, to know right from wrong. If at the time of the wedding, one person or other is incapable of knowing right from wrong, valid consent is impossible.

Additionally, discretion of judgement is important as it concerns the emotional and psychological immaturity of a person. Being of canonical age, has this person grasped the full extent of the degree of the commitment they are about to make? One might advise you are a long time married, thus it is essential that one understands “the essential matrimonial rights and duties mutually to be handed over and accepted” (Canon 1095 §2 and 1055). Another scenario might include persons who, unlike the last category mentioned above, would not take their marriage vows lightly, have been thoroughly and carefully prepared to receive the sacrament and indeed could be perfectly aware of the seriousness of marriage obligations, and yet, because of some deep rooted psychological flaw, consistently fail to fulfil their essential marriage duties. Whilst this canon deals with the obvious examples of homosexuality, alcoholism or nymphomania, it also takes into account psychic anomalies or personality disorders such as O.C.D. (Obsessive Compulsive Disorder). This was clarified by Pope John Paul II in 1987, who stated that this must mean incapacity and not just difficulty with regard to manifesting consent. (cf. John Paul II, aloc, Feb 5th, 1987 AAS 79 (1987), 1457 as cited in Beal, J. P., et al, op. Cit., p. 1303).

Incapacity for Marriage through lack of sufficient Reason (Canon 1095 § 1).

This canon refers to those who lack sufficient reason for marriage. It concerns those whose mental disability is so severe that they are incapable of performing a human act (in theological speak). As consent is an act of the will (cf. canon 1057 § 2), it has to be a human act, knowingly and willingly performed, and not just an act of man. There has to be a minimum of knowledge and freedom; otherwise it would not be a deliberate or a voluntary act, it would not be an act of the will. Someone so mentally disabled as not to know where he or she is or what they are doing or to know it only in a seriously distorted manner, could not marry validly. § 2 of this canon deals with grave lack of due discretion for marriage and is still dealing with those 'incapable of contracting marriage', as is all canon 1095. It notes that it is not intellectual ability as such which is at issue, although, canonically both intellect and will are required for consent (an act of the will—canon 1057 § 2), but the assessment, evaluation and choice which are implied in consent. people who suffer from a lower than basic intellect can and do know what they are doing, they can will to get married and indeed, do so. This is the normal state of things. On the other hand, it can be that a great intellectual does not grasp in anything like an adequate manner what is implied in marriage. No generalisations are to be made on the basis of intellectual ability or lack of it. Nor is it the case that an exhaustive knowledge of the theology of canon law of marriage is needed; people should not be ignorant of the fact that marriage implies sexual relationships (canon 1096), but extensive theoretical knowledge is not required for people to be able to marry validly.

What is at stake her is more of an evaluative or critical knowledge, an awareness of the importance of what is being undertaken, an appreciation of the significance of what is being done in getting married, at least to a minimal extent. When even that minimum is lacking, judgement or discretion is seriously defective, matrimonial consent is not exchanged. People are not expected to be able to foretell the future or to plan it in rigorous detail; it is marriage as such which is at stake.

To conclude, the law upholds the essential nature of marriage as an intimate partnership of married life and love, established by the Creator and qualified by His laws, rooted in the conjugal covenant of irrevocable personal consent (GS 48). Marriage requires the free, mutual and full consent of the betrothed in order to work, it must be rooted in this unhindered desire to give oneself and to receive another completely. It is this giving that echoes God’s complete pouring out of Himself for us on the Cross, and within this environment that we become fruitful and bring forth new life.

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