Consensual Incapacity to Marry

978-1-58731-134-5
Forthcoming Books
Cloth $30
240 pages. Feb 2020 pub date.

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Consensual Incapacity to Marry

Godfrey-Howell, Catherine

Marriage will always be a subject of law and of great interest to both legal scholars and sociologists alike because the anthropology that support marriage perceives justice to be a particular reality. With respect to realization of justice in marriage, the Catholic intellectual tradition has identified a legal category that does not exist anywhere else––namely, the consensual incapacity to marry. The Code of Canon Law promulgated in 1983 contains a juridical innovation (canon 1095), but this has not yet been fully digested by American canonists. Furthermore, its application reveals a vast disconnect with historical exegesis. In the last fifty years, American canonical practice in the sphere of marriage law has lost its foundation. The consequences of this include mechanisms of judgment that are rendered incoherent although not inactive––in other words, the application of law in the Catholic Church moves forward without a clear indication of its anthropological basis. Canon law, then, must either be oppressive or absolutelymeaningless.

There is one canon in particular that in its formula of consensual incapacity to marry is the center of the attempt to define and resolve this question: canon 1095. As of this moment, however, there is no comprehensive treatment of this canon in its current usage and how it developed into positive law after hundreds of years of implicit reference to the grounds for marriage nullity that it now indicates. Professors of canon law, members of the Roman Curia and judicial bodies acknowledge that more than a general response to this crisis of law and marriage what might be needed most is a revision of this single canon. They furthermore acknowledge that American canonical practice is perhaps the most influential in the world. A profile of this canon in American jurisprudence is fundamental and demanded presently.

There are over one hundred tribunals of varying functions, over two hundred seminaries and more than five thousand seminarians (each year), seventy million Catholics and tens of millions of these Catholics call their vocation marriage. The question of marriage validity is eternal––both with respect to its relation to an historical past as well as individual present day unions. The readership is vast and this book will be included in syllabi in seminaries, Catholic universities and other faculties of sociology, religion and law. It will be a reference guide in tribunals and studied in the course of legislative reform, but it will also be accessible to both scholars and laypersons. The question of consensual incapacity is asked tens of thousands of times each year anew and there is not yet a definitive study that provides answers and guidance for further development of this notion. Another example of the longevity of this work: the manual it will effectively replace was in print for twenty years with five editions (L. Wrenn, 1970, CUA).