Nullity of Marriage Contested

Anthony Zimmerman
Letter to Editor
Homiletic and Pastoral Review
published Nov. 1997
Reproduced with Permission

Editor: Msgr. Smith's response that "there is no marriage if both parties are emphatic about their intention to have a childless marriage" (June 1997) is not always true.

By marital consent, man and woman give each other the right to live as husband and wife -- the right to acts of sexual intercourse which are by their nature apt for the generation of children. Pope Pius X11, a sharp moral theologian, declared that they marry if they truly give each other the right to such acts, even if they intend not to use those rights.

The Pope recognized that some couples have sufficient reason to avoid having children by using periodic abstinence "even for the entire duration of their marriage" (cf. Address to Midwives, Oct. 29, 1951, 36).

Contrary to Msgr. Smith, Pius X11 here implicitly recognized the validity of marriages in which partners intend to have no children, provided only that they conferred to each other marital rights. The validity remains in its entirety if they intended not to use the rights; if they intended to have a childless marriage.

This principle sheds light on judgments about the validity or nullity of marriage cases. Did the couple who pronounced marriage vows before the altar give each other the right to marital acts, to live with each other as husband and wife? To celebrate their right during the honeymoon? We can presume that people of good will usually do so. Even if they already intended to divorce in future provided things do not work out well, that secondary intention did not necessarily nullify the primary intention to marry. If their primary intention, first and foremost and under all circumstances, was to give each other valid rights to marital acts, they thereby married validly, secondary intentions and wishes not nullifying what is primary. It's like getting on a commercial air flight: if you agree to get on, you go where the plane goes, even if you'd like it to go elsewhere.

But if they came to the altar to deceive the public, to merely obtain legal rights and privileges of married couples - housing, tax benefits - while intending to live with each other as fornicators or adulterers, they did not marry. And if one partner so deceived the other, they did not marry.