Differences between lack of consent and simulation of consent in canon law
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Executive summary
Canon law treats consent not merely as a formal utterance but as the substantive act that creates marriage; when that act is defective the marriage can be declared null, and two principal species of defect are distinguished—cases where consent is lacking because of incapacity, error, fraud or coercion, and cases where consent is simulated, meaning the person outwardly manifests consent while deliberately excluding marriage or essential elements of it [1] [2]. The practical and juridical difference turns on whether the internal act of will was absent or incapacitated (lack of consent) versus present but moved to a different end (simulation), and each carries distinct canonical criteria and evidentiary implications for a declaration of nullity [3] [4].
1. What “consent” means and why it matters
Canon law regards mutual consent as the very act that “makes” marriage: the celebration has no juridical effect if valid consent is missing, so tribunals focus first on the existence and quality of that internal act of will rather than on external ceremonies alone [1] [3]. This theological-juridical premise underpins why both lack of consent and simulation are treated as grounds for nullity: if the consent that is essential to marriage is defective in prescribed ways, the union is considered void ab initio and can be the subject of a canonical nullity process [3] [4].
2. Lack of consent: incapacity, error, fraud, force and fear
“Lack of consent” in the canonical schema typically denotes situations where a person cannot validly give the internal act of consent—because of psychological incapacity (Canon 1095), error about the person (Canon 1097), deceit (Canon 1098), or because consent was obtained by force or grave fear (Canon 1103)—so the will is either absent or rendered incapable of the concrete choice to marry [2] [5] [3]. In such cases the defect is one of capacity or knowledge: the party did not really possess the requisite freedom or correct understanding to intend marriage, and tribunals look for clinical, factual or circumstantial evidence of that incapacity or deception [2] [5].
3. Simulation of consent: saying yes while meaning no
Simulation differs in kind: it describes an internal, positive decision to exclude marriage or an essential property of it even while externally manifesting the words or signs of consent—total simulation is intending not to marry at all, while partial simulation excludes particular essentials such as fidelity, permanence (indissolubility), or openness to children (Canon 1101 §2) [5] [4] [6]. The simulant intends a different end—for example to obtain sexual access, civil benefits, or legitimize a child—so the will exists but is ordered to something other than conjugal self-giving as the law understands it [7] [2].
4. How tribunals distinguish the two in practice
Practically, tribunals analyze whether the internal act of will was absent/defective (lack of consent) or present but directed elsewhere (simulation), a distinction that shapes the type of proof and the kinds of evidence admitted: medical or psychological expert evidence is often marshaled for incapacity, whereas contextual indicators—statements of intent, behavior before and after the rite, motives like immigration or cohabitation, and refusal to renew consent at later validation—are cited to support claims of simulation [2] [7] [8]. Canon law also presumes internal consent accords with external manifestation, so claimants must overcome that presumption with substantive proof tailored to the ground alleged [9].
5. Consequences and canonical commentary
Both defects can yield a declaration of nullity, and canonists stress nuanced limits: the exclusion of essential properties by a positive act of the will (simulation) is explicitly listed in Canon 1101 §2, while incapacity and error are treated under other canons; commentators caution that mere difficulty in loving does not equate to incapacity, and that simulation requires proof of a deliberate, contrary will—not simply lack of affection [9] [4]. Canonical texts and diocesan handbooks provide evidentiary examples (e.g., motives like immigration or outright statements of intent) but procedural particulars and standards of proof vary and are not exhaustively summarized in the provided materials [7] [8].