The Canonical Defender, Prof. Ed Peters, has on his excellent blog In The Light Of The Law, an interesting post about marriage and presumption of death.
I suspect that this issue could include also military combatants who are MIA.
Thus, Prof. Peters:
Arthur Gerald Jones, declared dead in 1986 some seven years after he had simply disappeared under ambiguous circumstances, was recently found alive and well, working under the name of Joseph Richard Sandelli. Jones, whose religious affiliation was not identified, was married with children when he vanished, and it seems that he has not remarried since then, but, as technological advances make more likely the discovery of other erroneous declarations of death, the Jones-qua-Sandelli episode occasions three quick points about the canon law of “presumed death” per Canon 1707.
1. A civil certificate of presumed death is not sufficient basis for a bishop to declare a “survivor’s” freedom to marry in the face of a prior marriage per Canon 1085. An ecclesiastical determination of presumed death must be made.
2. In making that ecclesiastical determination, a bishop find evidence (albeit not proof) of actual death, and not merely of absence, however protracted.
For example, a man books a passage on ship, but he never shows up at the dock, and is not heard from again, even for many years. Such a fact pattern is insufficient for a canonical declaration of presumed death because there is no evidence that the man died. Alternatively, a man books a passage on ship and is seen on the ship before it sinks at sea with loss of life. He is not heard from after the shipwreck. That would be much closer to providing a basis for an ecclesiastical declaration of presumed death, because circumstances pointing to death are present.
3. If a spouse remarries after having received an ecclesiastical declaration of presumed death, but the original spouse is later found alive, the second marriage is null and a petition declaring such nullity should be filed, if necessary, by the promoter of justice per Canon 1674.
Read more about the canon law of “presumed death”: CLSA New Comm (2000) at 1798-1799 or GB & I Comm (1985) at 949.
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So, if a person wanted to make sure that the person divorcing them could never re-marry they simply could vanish and thus force the spouse they abandoned to remain single? Good thing that isn’t widely known or it might get abused.
KAS, I can’t see this getting abused too much. If the abandoned spouse has sufficient reason to believe that the marriage was null, he has the right to petition for a declaration of nullity. If the abandoning spouse has truly “dropped off the radar” and cannot be located, the Petitioner can still petition for a declaration of nullity, and, in some cases, a curator can be appointed to ensure that the rights of the Respondent are respected insofaras possible.
This is a major difference between Canon Law and the contemporary civil laws of many Nations. Many Nations that allow for the civil dissolution of the civil marriage bond also consider that a declaration of presumed death dissolves the bond. So that divorce is not the only civil form of dissolution.
For instance, in Brazilian Civil Law, if a person, a soldier missing in action, for example, were to be formally presumed dead by a Court of Law, and if the “surviving” spouse were then to contract another marriage, and if later the soldier were to appear alive, the first marriage would be considered dissolved as of the date of the presumption of death, and the second marriage would be considered valid in the eyes of civil law. In other words, even a wrong declaration of presumed death, if made in good faith, dissolves the civil marriage bond, and prevails over the reappearence of the person presumed dead.
Of course, a Catholic “surviving spouse” in that situation could decide to get a civil divorce from the second spouse so as to remarry the first spouse, but civil law would see that as a new marriage.
This works this way because civil law marriage no longer functions based on the logic of indissolubility of the bond that is at the foundation of the norms of canon law. So the civil law regulations opt to protect the “juridic security” and stability of the new situation by considering the old marriage dissolved even if the assumption that led in good faith to the first spouse being declared presumed dead is proven false.
Canon Law, of course, has a different appreciation of the situation, based on Divine Law. Not even the Church can dissolve a valid and consummated Sacramental marriage. Ecclesiastical law lacks that authority, because the inflexible rule of indissolubility forms part of Divine Law, it is willed by God and is a symbol of the bond that unites Christ and His Church.
So, in such a situation, the Catholic who remarried under a false assumption is to leave the second marriage, because it is in reality a null marriage, and is expected to resume married life with his or her true spouse.
I seem to recall that the English in naval battles would accept a sea burial or a ‘lost at sea’ scenario enabling the widow to remarry without the presence of a body.
This differed with the French who would return the bodies of thier dead from naval battles. They would store them in the ballast hold and return to port.
Prof. Basto,
Thank you for answering my unasked question. From a practical perspective what is to be done about things like children and property? In our modern world how does one go about reconciling children from two spouses if a wrongly declared dead spouse returns? How is marital property from the new spouse treated? While these things are obviously not common, we see that they do happen.
I have a friend who is originally from Bavaria that this issue is why he is not a practicing Catholic. His father was in the German army in WWII and went off to the Eastern Front where he was never heard from again. His mother, left with young kids tried to get something worked out so she could marry, but was told no. (The details of what exactly was tried, I don’t know) But this fellow is bitter about it to this day. However, he does have several photos of the Pope up in his restaurant.