I went online for a quick definition of abduction. One definition from Cambridge stated abduction as “the act of making a person go somewhere with you, especially using threats or violence.” This definition is enough for our discussion.
Canon 1089 states, “No marriage can exist between a man and a woman who has been abducted or at least detained with a view of contracting marriage with her unless the woman chooses marriage of her own accord after she has been separated from the captor and established in a safe and free place.”
It is an established principle of the Church that personal consent of the parties alone constitutes marriage.
This is expressly stated in Canon 1057 §1 – “The consent of the parties, legitimately manifested between persons qualified by law, makes marriage; no human power is able to supply.”
Various decretals of twelfth century popes insist that “consent not cohabitation makes a marriage.” In other words, it is not enough to declare a union as marriage based on the mere fact of cohabitation. What is needed to make any union marriage is the consent of both parties legitimately manifested and expressed.
The consent which establishes marriage must also be given freely. Canon 219 states, “All the Christian faithful have the right to be free from any kind of coercion in choosing a state of life.” This canon affirms the essential equality of all people and the right to exercise their universal and inviolable rights.
These rights include their right to follow their vocation. It is worthy of note that, God the creator endowed human beings with free will – the freedom to choose what we want (and, of course, face the consequences). If even the Creator cannot restrict us in our choices, then no one should assume that right.
In Ghana, we sometimes hear of situations where marriages are arranged for people without their consent.
It becomes even more worrisome when young women are violently abducted and forced into marriages. When this kind of situation arises, the freedom of consent is called into question.
Indeed, it may be argued that the lady in question has consented to the marriage in her predicament. This argument cannot be sustained, because as long as she remains in abduction, she lacks the freedom to consent to marriage.
Looking at the text of the canon, it can be seen that the impediment arises when a woman is abducted or kidnapped against her will. This impediment can also arise in a situation where an abducted or kidnapped woman is retained in a place to which the abductor has access.
In fact, some canonists hold that “the abductee could even be detained in her own home if the abductor has free access to it” (John P. Beal et al). In other words, there must be full and uninhibited freedom on the part of the woman. It is as if to say she must be fully in charge of her life.
The impediment of abduction is not about situations of elopement or seduction. In these cases, the woman voluntarily cooperates in the whole enterprise. The impediment of abduction involves some amount of violence. This can be physical, as in a situation where force is applied, or moral, as in a situation of threatening to harm the woman’s family members or her reputation.
The violence can be inflicted by the abductor himself or by others acting as his agents.
Another important thing to note is that, the abduction must be motivated by a particular reason, and in this case marriage. If the abduction has nothing to do with marriage, then we cannot talk of the impediment of marriage.
The impediment ceases when the abducted woman is set free from detention and placed in a safe environment. This means she is free from the abductor’s power over her, and is able to live her life without fear of any harm.
The moment the woman is set free from her abduction and placed in a safe place, then she would be able to freely decide whether to marry her onetime abductor or not. The impediment does not arise if she freely chooses to marry him.
The impediment of abduction is an ecclesiastical law which can be dispensed by the local ordinary, even when the woman is still in abduction. That notwithstanding, it is strongly recommended not to grant such dispensation, bearing in mind the lack of freedom of the woman.
Authored by Rev. Fr. JP Tindana
(Accra, Ghana)// AGNUS-DEI MEDIA