The Children Are Legitimate

When a marriage of parents is declared null by the church many people are confused about its impact upon the legitimacy of the children. In fact a judicial sentence which declares the nullity of a marriage does not affect the legitimacy of children born of that union. Any statement or belief to the contrary is simply wrong.

Tragically for children, it is a common misconception that a declaration of nullity renders them illegitimate in the eyes of the faith community. The laws of the Catholic Church clearly state that this is not the case (canons 1137 & 1138). I believe the misconception is derived from two perspectives.

First, this harmful fallacy is derived from the use of the word "annulment." The word is inappropriate when discussing proceedings of nullity before a church tribunal. In fact, the word annulment is not used in the law of the church. Rather, a trial proceeding which declares the nullity of marriage (canons 1673, 1677.3, 1682, 1684 & 1690) is more aptly referred to by the term, "declaration of nullity".

The word annulment implies that you are taking "something" and wiping it away. When this erroneous word is applied to a declaration of nullity, it signifies that the entire relationship between the spouses is wiped away or erased, including the legitimacy of children. This is one reason the word is wrong and not used in church law. Rather a marriage that is declared null is thereafter referred to as a putative, or "supposed," marriage (canon 1061.3). It was a marriage contracted in violation of an impediment, condition or defective consent, but in good faith on the part of one or both of the contracting parties.

Second, the misappropriation of the term illegitimate indicates a misunderstanding of legitimacy. Legitimacy is a legal term, or construct, that is held by many legal systems throughout the world. The term indicates knowledge of a child's paternity. The maternity of a child [the Latin word for mother is "mater"] is obvious. The issue of the child's paternity [the Latin word for father is "pater"] can be less so. The term legitimacy connotes that a child's father is the husband of the child's mother at the time of birth. In no way could a declaration of nullity deny a child's paternity. At the time of birth, the legally presumed relationship between the child's father and mother was indeed that of husband and wife. A declaration of nullity does not deny this. Since there was a putative marriage, the legitimacy of the child cannot be affected.

Legitimacy is one of the first issues addressed to parties who are involved in tribunal procedures regarding marriage. The misconception is so pervasive that it needs to be confronted. Unfortunately, it is not uncommon for spouses who have obtained a civil divorce to continue ex-spousal hostilities in the post divorce situation. These hostilities can surface in the parental relationship, and clearly the children suffer. There are few things more heart-wrenching to tribunal officials than to discover that a child has been told by a parent that the Church is going to render him or her "illegitimate" through the granting of a declaration of nullity. Informed parents who make such a statement have allowed anger at another adult to triumph over the well-being of the child.

The church promotes the dignity of children in many arenas, including its legal structures. It is imperative to state clearly and unambiguously that children born of a marriage that has been declared null are legitimate. There is no room for misconceptions.

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