It’s a common remark to hear that one spouse has her/his marriage declared null while the other did not obtain ecclesiastical annulment. Can that really happen? Can a person get his/her marriage declared null while the other partner remains validly married?

A vetitum prohibits the remarriage of one or both parties within the Catholic Church only- Ann Marie Mangion

The short answer is no because since marriage applies to both spouses one cannot be married while the other is not. Therefore, in the case of an ecclesiastical annulment, there are only two possibilities: either the marriage is declared null or it is not.

Sometimes there is the misconception that what the vetitum (prohibition) means is that it does not grant the decree of nullity to the person on whom it was imposed. Although this is not correct, the reality that one party is able to marry while the other cannot still permeates this misconception and that is precisely why some retain the wrong belief that one party has had the marriage declared null while the other had not.

The vetitum prohibits the party who has such an order imposed on him/her from contracting marriage within the Catholic Church.

Why is the vetitum imposed?

The vetitum is not imposed on every party. It is only imposed on the party whom the tribunal believes that if s/he marries again such marriage would also be declared null due to the existence of grave and just causes, such as an absolute and perpetual impotence or a permanent psychic incapacity.

For the vetitum to be imposed in situations where simulation was found to subsist, the person must be declared to have a policy that is significantly at odds with the Church’s position on marriage. The vetitum can also be removed if such cause ceases to exist and, thus, the said person will subsequently be allowed to get married within the Catholic Church.

A vetitum prohibits the remarriage of one or both parties within the Catholic Church only. It does not prevent the said party from contracting a civil marriage.

Lindsay L. Abbate states that “this seems paradoxical because an annulled marriage theoretically never took place, thus, the parties should logically be permitted to ‘remarry’ within the Church” (What God Has Joined ‘Let’ Man Put Asunder: Ireland’s Struggle Between Canon And Common Law Relating To Divorce, 16 Emory International Law Review (2002) 583-637, 591.).

She adds that the party who was given a vetitum is still “not freed from the spiritual bond” since s/he is still not permitted to remarry within the Church.

According to the Marriage Act 1975, the civil legal system does not include the equivalent of the vetitum as expressed in Canonical law, jurisprudence and teachings. Therefore, the vetitum as expressed in Catholic legal teachings remains within the realm of Canon law.

However, that does not mean that there are not certain prohibitive elements in the Maltese civil marriage. Since civil law does not define what a marriage is, it substantiates civil marriage law by imposing restrictions that effectively ban certain marriages.

For example, article 3 of the Marriage Act states that marriage cannot be contracted between persons below 16 years of age and that where a person is “incapable of contracting by reason of infirmity of mind, whether interdicted or not” the marriage would be void. Bigamy is also disallowed in civil law.

However, the term vetitum refers to a “prohibition” and in civil marriage law the term “prohibition” is only mentioned in article 5 where marriage cannot be contracted within prohibited degrees. For example, a marriage cannot be contracted between a father and his daughter, or between brothers and sisters, or between persons related through marriage within the direct line, such as a stepmother and her stepson, or between the adoptive parent and his or her adopted child.

Therefore, since the vetitum prohibits the person subjected to a vetitum from getting married within the Church, does that amount to a breach of his human rights, that is, of article 12 of the European Convention of Human Rights, the right to marry?

Article 12 states the following: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”.

Persons subject to a vetitum are still allowed to get married civilly. However, by stopping a person from getting married within the Church, is the right to marry being breached, even though s/he is permitted to obtain a civil marriage? What if that person adamantly wants to get married within the Church, is his/her right to marry being breached?

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.