The exclusio boni prolis as a ground for the declaration of nullity of marriage : doctrine and jurisprudence

Abstract

More than sixteen centuries ago, around the 4th century, St. Augustine of Hippo coined the term tria bona or, as they are better known, the three goods of marriage, being thus called bona matrimonii. So traditional has it been to refer to each of the essential features of marriage as a bonum – bonum sacramenti (the bond of indissoluble unity or permanence), bonum fidei (the good of fidelity), and bonum prolis (the good of offspring) - that the word bona, in reference to marriage, has become for many a working term with a purely technical connotation. The procreative aspect of marriage, that is, the prospect of having children of one’s own, is one of the aspirations of human nature. However, this is not always the case due to the fact that in some cases a couple may decide to exclude children from their marriage. The Church is aware that not every apparent marital bond was in fact validly contracted, and therefore justice demands that such invalid ‘marriage’ be declared never to have existed. Therefore if while pronouncing the proper words of consent, a person positively excludes one of the bona, this is termed ‘simulation’, and if such exclusion is proved, the Church’s tribunal will declare such a ‘marriage’ null. This dissertation deals with the jurisprudential and doctrinal aspects of the bonum prolis, including case law from the ecclesiastical tribunals of local and foreign jurisdictions, together with the Church’s teaching relevant to the subject in question. The first chapter The Concept of Bonum Prolis in the 1917 Code of Canon Law gives a brief outline of the doctrine and jurisprudence on bonum prolis as it was envisaged and conceived in 1917 Code of Canon Law. Reference is also made to the concept of right of use and use of the right and also the effects of the exclusion of this bonum as a ground of nullity. The second chapter The Concept of Bonum Prolis in the 1983 Code of Canon Law deals with doctrine and jurisprudence of bonum prolis and the developments if any brought about by the promulgation of the most recent Code of Canon Law of 1983. Reference is made to the notions of conjugal self-gift, bonum coniugum, educatio prolis and procreatio prolis.The third chapter Bonum Prolis: Elements, Nature and Obligations give an in depth picture of the essential elements and also on the nature of the bonum prolis together with a reference to Canon 1095. The fourth chapter The Exclusion of the Bonum Prolis and its Invalidating Effect deals with the bonum prolis and with the issue of simulation whether total, partial, absolute or temporary. The fifth chapter Bonum Prolis and the Legal, Ethical and Moral Issues, deals with other collateral issues related to bonum prolis amongst which the use of contraceptive means and methods of birth control, and other issues of modern society. Most of the information collected for this dissertation was accessed through the internet, which proved to be a vital source. This dissertation is also backed by information which I collected from many legal and theological books and journals, newspapers and other relevant sources of information.