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I'm confused about the details of how the concepts of "putative marriage", "valid marriage", and "invalid marriage" are related in the context of Roman Catholic canon law in medieval times vs. today.

My understanding is that today, a declaration of annulment in the context of the Roman Catholic church is equivalent to an assertion that no valid marriage ever existed between the two parties involved. Here is a description from the website of the United States Conference of Catholic Bishops:

What is an annulment? [...] a Church tribunal (a Catholic Church court) declares that a marriage thought to be valid according to Church law actually fell short of at least one of the essential elements required for a binding union. [...] Why does the Catholic Church require every divorced person who wishes to marry in the Catholic Church, or who wishes to become Catholic, to obtain a declaration of nullity? [...] The tribunal process seeks to determine if something essential was missing at the moment of consent, that is, the time of the wedding. If so, the Church can declare that a valid marriage was never actually brought about on the wedding day.

However, the answer by sempaiscuba to "In medieval Europe, were children born in an annulled marriage automatically illegitimate?" pointed to a quote from Harold J. Berman that contradicts what I thought (I've added a bit more of the surrounding quote that I find relevant to my question):

Where the parties married in good faith, without knowledge of an impediment, the canonists held that the children of the marriage were legitimate and that the marriage itself was valid up to the day it was declared null; this was called a putative marriage.

(page 228)

Berman, Harold J: Law and Revolution, the Formation of the Western Legal Tradition, Harvard University Press, 2009

(Please note, I'm not concerned here with the topic of the legitimacy of the children in such a situation, as modern sources that I've found agree that these children are not considered illegitimate.)

Has there been a change in canonists' definition of annulment, and it was previously understood that a putative marriage was in fact valid up until it was annulled? Or is it possible that Berman slightly misworded his statement here, and putative marriages were not considered in retrospect to have ever actually been valid, but only to have been entitled to the presumption of validity until determined to be null? I would appreciate anyone who can give a pointer to historical primary sources, or to secondary sources other than Berman that address this topic.

When I mentioned my confusion in the comments, sempaiscuba presented an interesting argument to support Berman's wording:

In 1149 Pope Eugene III issued a bull confirming Eleanor of Aquitaine's] marriage to Louis VII was valid. In 1152 it was annulled (with the approval of Pope Eugene) on the grounds of consanguinity.

However, I don't think this answers my question because it seems possible to interpret this as meaning that at the time of the bull, Eugene III presumed the marriage to be valid, and then later on he considered that it had never been valid.

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    (conceptual answer): the fact that the marriage did not exist does NOT imply that legally, all of its consequences must be erased. The most obvious issue is about property: If the couple bought stuff together, the law may justly recognize shared property rights even if afterwards it was found they were never married. About legitimacy: in many places/times, bastardy would legally diminish his rights (inheritance). If legally he is considered legitimate, this has no doctrinal relevance. Also, nullity does not imply guilty (unless somebody acted in bad-faith).
    – Luiz
    Jun 17 at 14:33
  • It sounds to me like you're looking for a religious answer to an economic question. In earlier times inheritance mattered a lot and being illegitimated didn't just mean loss of some money when Daddy dies, but the loss of lands, title and perhaps life. It might trigger a civil war. It was far more important to keep inheritance stable back then, so that older son Edward need not necessarily rebel when his father puts his mother aside.
    – Mark Olson
    Jun 17 at 16:00
  • @MarkOlson: As I said in the question post, "I'm not concerned here with the topic of the legitimacy of the children". In canon law, a putative marriage undisputedly confers legitimacy on the offspring of the putative marriage: my question is whether canonists ever held that, as Berman puts it, "the marriage itself was valid up to the day it was declared null", or whether putative marriage was considered to have never been valid (but the offspring are considered legitimate because at the time of their birth, the invalid marriage was presumed to be valid).
    – sumelic
    Jun 19 at 4:57
  • I realize that you are not interested in children's legitimacy, but inheritance -- which depends on legitimacy -- was for millennia the driving force behind how society organizes marriage. Religious issues were very important, but still in the long run secondary. I don't think you can understand the canon on its own.
    – Mark Olson
    Jun 19 at 12:27

1 Answer 1

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No, it's been consistent.

The 1917 Code of Canon Law, which consolidated canon law dating back to the Decretals of Gratian (12th cen.), defines putative marriage:

Canon 1015 § 4. Invalid marriage is called putative if it has been celebrated in good faith by at least one of the parties, until both parties are convinced of its nullity.
cf. 1983 CIC 1061

Also:

Canon 1014. Marriage enjoys the favor of law; therefore in doubt the validity of marriage is to be upheld until the contrary is proved
cf. 1983 CIC 1060

Berman isn't being precise; he should've said: "the marriage itself was [thought to be] valid up to the day it was declared null". A declaration of nullity ("annulment") cannot change a valid marriage into an invalid one (Mt. 19:6: "…What therefore God hath joined together, let no man put asunder."); it only declares there was never actually a valid marriage to begin with.

See:


Regarding legitimacy:

Canon 1114. Those children are legitimate who are conceived or born of a valid or putative marriage unless the parents, because of a solemn religious profession or the taking up of sacred orders, had been, at the time of conception, prohibited from using the marriage contracted earlier.
cf. 1983 CIC 1137

See also:

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