Benedict XVI's Declaratio does not enjoy a juridical presumption of validity

Introito 

Benedict XVI: Pope “Emeritus”?: A standing demonstration

Before the eyes of many –big and little, old and young, experts and laymen, laity and clergy, coming both from the centers and the peripheries of culture and religion–, two facts parade today, which, given their notorious nature, will be taken here, not as an object of description/explanation/assessment, but as a starting point for the examination of a further problem.

What facts are we talking about? For those who have had the opportunity to read –at least– the book Benedict XVI: Pope “Emeritus”?[i], the answer is implicitly anticipated in the title of this introito: we are talking about, on the one hand, the demonstrated nonexistence/invalidity –attention to the exchange of words, which we will return to later–, both of H.H. Benedict XVI’s (hereon BXVI)  “resignation” as well as of Cardinal Jorge Mario Bergoglio’s (hereon JMB) “election” to the pontificate, and on the other hand, the fallacious/insufficient nature of the arguments with which some have repeatedly tried to distort[ii], always without success[iii], such demonstration. In summary, we are talking about a substantial juridical reality that to date can be considered as definitive: BXVI has never ceased to be, and will remain until his death, the only true Pope of the Catholic Church (and therefore Francis is, and will be until his death or his eventual “resignation” –read, voluntary cessation of the usurpation of the Apostolic See–, an anti-Pope).

And what would be the further problem announced? Nothing less than the flip side, of a formal juridical nature, of the indicated reality, expressible through the following questions: is it legitimate for the faithful to “discover”, accept and proclaim that it is Benedict and not Francis the legitimate Pope, even when the competent ecclesiastical authority has not issued an official declaration in this regard? Do not the aforementioned juridical acts of “resignation” and “election” enjoy a presumption of validity, in such a way that, to all effects, the entire Church must submit to them until such an official declaration is made? Is not adhering to BXVI as Vicar of Christ the equivalent of usurping ecclesiastical authority and omitting due process, to the point of incurring schism? Ultimately, given the substantial juridical reality in question, would it not correspond to the faithful, simply, to keep silent, pray and love?

Except for the first question, our answer is always a resounding NO. To tell the truth, we already offered this refusal in the document Adversus Fallacies..., where, noting that Francis has been from the beginning a Papa dubius (and therefore a Papa nullus) –or, what amounts to the same thing, that in his case the pacifica universalis ecclesiae adhaesio has not been configured–, we argued: “How to demand obedience, then, with regard to a doubtful Pope (Francis)? How to expect, under these conditions, that the faithful refrain from investigating who the true Pope is, and from forging and expressing a judgment on the matter? Is it not a right and a duty of every Catholic (of every man, even) to seek the truth and adhere to it once found, especially in matters that concern ecclesial communion and, therefore, eternal salvation? For the rest, will we be unable to see that the demonstration and defense of the truth logically precede its official declaration by any ecclesial authority? What would Saint Catherine of Siena, Saint Vincent Ferrer and Saint Bernard of Clairvaux say about this?”. Additionally, in the same document we warned of the dangers contained in the fallacy according to which only an eventual successor of Francis could put an end to the (anti)papal question: “Let us also note the trap behind the argument under analysis: if Francis is an anti-Pope (and he is), the “next Pope” would be nothing less than another anti-Pope, since he would be elected by cardinals invalidly appointed by Francis. In this sense, to hope that the “next Pope” may solve the problem is simply illusory”[iv].

Now, although the preceding lines are clear and satisfactory from a logical and historical point of view, the technical question –the presumption of validity of juridical acts– remains to be elucidated, and its development requires specific canonical references and explanations. We will dedicate ourselves to this below, not without first exposing, with the help of examples, the position of those who take refuge behind said presumption.

Problem setting

The duty to adhere the Church’s public judgment: the marriage contract/sacrament as a “paradigm”

Let us pose the problem in the own words of one of our “adversaries” –Ryan Grant[v]–:

“External Forum […] This leads us to the next consideration. The papacy is a public office. Its reception is public, and a resignation of that office is publicly manifested. That means the presumption is on the validity of the resignation until it is proven otherwise in the external forum. That is, the resignation must be shown to be false in ecclesiastical courts – not on a blog, not on Facebook, and not in the formal declaration of some layman or even a cleric. Propter metum. Now let us consider the argument of fear or duress [under which, supposedly, BXVI acted when “resigning”] that is often alleged. Proponents of this argument may quote Canon 188: «A resignation submitted out of grave fear, which has been unjustly inflicted, or because of fraud, substantial error or simony is invalid by the law itself». The difficulty is that in all acts done out of fear, there is in fact a consent to the act that is, in principle, actual consent. This is attested to also in Canon Law: «An act placed because of grave fear, which has been unjustly inflicted, or because of fraud is valid unless the law makes some other provision; but such an act can be rescinded by the decision of a judge, either at the instance of an injured party, or at that party’s successor’s in law, or ex officio» [canon 125 §2 of the Code of Canon Law, hereon CCL]. The import of this is that if the pope were pressured by some nebulous fear, arising from some nebulous threat, as certain blogs have opined, it would be necessary for this to be shown in a canonical court, by that party or someone succeeding to his claims, and at that point, when this fear is demonstrated in the external forum, then, and only then, could we have such a confirmation” (emphasis added).

And to abound in arguments, the columnist offers us an analogy with the contract/sacrament of marriage:

“The consequence of individual laity «definitively declaring» Benedict’s resignation to be invalid, on their own authority, is not at all different from a man who discovers that his marriage is invalid due to some impediment. Even if he were one hundred percent correct and this impediment were as plain as the summer sun, he cannot just run off and marry some other woman unless the Church has granted him a declaration of nullity, which is a judgment in the external forum. In other words, because the sacrament of matrimony is a public act, not unlike taking the office of the papacy or renouncing it, any defects affecting validity must be publicly adjudicated by the Church through the annulment process so that a definitive judgment will be issued and those concerned will have moral certitude on the matter”.

These considerations, in what specifically refers to the matrimonial contract/sacrament, correspond to the content of the Letter to the bishops of the Catholic Church concerning the reception of Holy Communion by the divorced and remarried members of the faithful[vi], issued on September 14, 1994 by the Congregation for the Doctrine of the Faith, which in its pertinent sections indicates:

“The mistaken conviction of a divorced and remarried person that he may receive Holy Communion normally presupposes that personal conscience is considered in the final analysis to be able, on the basis of one’s own convictions, to come to a decision about the existence or absence of a previous marriage and the value of the new union. However, such a position is inadmissible. Marriage, in fact, because it is both the image of the spousal relationship between Christ and his Church as well as the fundamental core and an important factor in the life of civil society, is essentially a public reality.

It is certainly true that a judgment about one’s own dispositions for the reception of Holy Communion must be made by a properly formed moral conscience. But it is equally true that the consent that is the foundation of marriage is not simply a private decision since it creates a specifically ecclesial and social situation for the spouses, both individually and as a couple. Thus the judgment of conscience of one’s own marital situation does not regard only the immediate relationship between man and God, as if one could prescind [sic] from the Church’s mediation, that also includes canonical laws binding in conscience. Not to recognize this essential aspect would mean in fact to deny that marriage is a reality of the Church, that is to say, a sacrament.

In inviting pastors to distinguish carefully the various situations of the divorced and remarried, the Exhortation Familiaris Consortio recalls the case of those who are subjectively certain in conscience that their previous marriage, irreparably broken, had never been valid. It must be discerned with certainty by means of the external forum established by the Church whether there is objectively such a nullity of marriage. The discipline of the Church, while it confirms the exclusive competence of ecclesiastical tribunals with respect to the examination of the validity of the marriage of Catholics, also offers new ways to demonstrate the nullity of a previous marriage, in order to exclude as far as possible every divergence between the truth verifiable in the judicial process and the objective truth known by a correct conscience.

Adherence to the Church’s judgment and observance of the existing discipline concerning the obligation of canonical form necessary for the validity of the marriage of Catholics are what truly contribute to the spiritual welfare of the faithful concerned. […]

[…] In pastoral action one must do everything possible to ensure that this is understood not to be a matter of discrimination but only of absolute fidelity to the will of Christ who has restored and entrusted to us anew the indissolubility of marriage as a gift of the Creator. […]” (emphasis added).

Well, what do we have to say with regard to these approaches?

An indispensable distinction

Internal requirements vs. external requirements of the juridical act

Since we are talking about juridical acts, we must in the first place ask ourselves what a juridical act is, always placing ourselves in the ecclesial context. In a simple way, we can define the juridical act as the socially recognizable manifestation of a decision, which is accepted by the norms of objective law (be it, in this case, divine or merely ecclesiastical) as a source of creation, modification or extinction of juridical relationships. From this definition it is possible to decompose the juridical act into its internal (essential, constitutive, structural or defining) elements, that is, those that make up its very nature, that are part of its definition or conceptualization, in such a way that, lacking any of them, one could not even properly speak of a “juridical act”. Thus, for a juridical act (in general) to exist, there must be a subject –or several, depending on the case–, an object (the “juridical goods” or situations with respect to which the subject(s) is (are) deciding, and the content of the decision adopted), a will or consent (the acquiescence that the subject(s) grants to the decision) and a form (a way of social expression of consent, which can be imperatively determined by objective law –in solemn juridical acts– or left to the choice of the subject(s) –in free-form juridical acts–).

Let us now formulate some (merely rhetorical) questions that will help us to better understand the essential nature of the requirements or elements mentioned. Could one imagine a juridical act (contract) of sale and purchase celebrated by a single subject? Or a sale and purchase agreement in which the subjects do not designate, in a clear and determined way, the good that will be transferred by the seller? Or a (contract/sacrament of) marriage where the contracting parties remain inert and do not manifest any positive will when faced with the question “do you accept?”? In none of these three events would the juridical act arise: they would be, in other words, non-existent juridical acts due to the lack of some internal or essential element (subjects, object, consent, respectively).

Now, there is another set of requirements or elements, not anymore internal (essential, constitutive etc.) but external, which are necessary, not for the juridical act to emerge (reach existence), but for it to be judged as accordant or harmonious with the (contingent) positive requirements of a certain juridical system (be it the canonical, for example, or that of a national State), in such a way that its effects may never be “annihilated” by the competent authorities or, contrario sensu, can be always recognized/endorsed/protected by them. Among these requirements are: the capacity of the subject(s) of the act (linked to qualities such as experience, maturity, responsibility, discernment, communication skills etc.), the lawfulness of the object (commonly associated with moral considerations), the freedom of consent (in general, it is required that consent is not vitiated by error, coercion or malice) and the completeness of the form (in the case of solemn acts, the formality imposed by law must be punctually fulfilled).

The conceptual difference between one and another set of elements or requirements is obvious. Could one compare, just to say something, a sale celebrated by a single subject, with a sale celebrated by two subjects one of which is insane? Or a sale that lacks a specific object (good to be transferred), with another that has, as its object, a nuclear weapon whose circulation is prohibited by the applicable juridical system? Or, finally, would there be similarity between a marriage in which the contracting parties completely abstain from answering to the famous “do you accept?”, and another where the spouses have been forced or coerced to say “yes, I accept”?

In purely theoretical terms, it is obvious that the first assumptions of each of the proposed questions account for non-existent juridical acts; in the second cases, on the other hand, the qualification of the applicable juridical sanction is not so clear: nullity, invalidity, vice of nullity/invalidity, rescindibility?

Terminological problems arise, not only because each juridical system offers different solutions before the absence of any of the external elements of the act, but also because it is not unusual to find inaccuracies/ambiguities/inconsistencies within the same juridical system –to the extent in which, for example, the normative provision of the internal and external requirements of the act is not always consigned in a discriminated and orderly manner–, all of which causes, in turn, a certain chaos in the doctrinal language[vii]. Thus, we see how canon 124 § 1 of the CCL neither defines the juridical act nor does it expressly categorize the multiple requirements or elements –it only enumerates them indistinctly–, thus leaving to the doctrine[viii] the work of theorizing/systematization. Let us observe, in effect, the literality of the indicated canon, as well as the corresponding doctrinal comment:

“For a juridical act to be valid it is required that the act has been performed by a capable person and includes the elements that essentially constitute that act, as well as the formalities and requirements imposed by law for the validity of the act”[ix].

“This c. does not properly define the juridical act, but refers to its presuppositions and to the elements required for its existence and validity. As a presupposition of the juridical act is the ability or capacity. Among the requirements, there are distinguished those which belong to the essence or nature of the act and which are its constituent elements, and those that are required by positive law for its validity. If the constituent or essential elements are missing, the act is invalid due to lack of existence (non-existent act). Thus, as a human act, the juridical act must be free (with the exercise of intelligence and will) and must have an adequate object (which the juridical doctrine calls cause, and which is the intended social result); in default of will or essential object, the act would be non-existent. In addition, positive law may require other formalities (form) and conditions that do not affect the existence of the act, but without whose presence the act would be null ipso iure (invalidity), or at least could be annulled by a judge's ruling (rescindibility). Such requirements of positive law can also affect the conditions of capacity, since, for the existence of this, natural law only requires the necessary discretion of judgment, according to the object and nature of the act”[x].

Apart from any possible terminological judgment on the transcribed paragraphs, the truth is that they account for two indisputably different situations: on the one hand, the “invalidity due to non-existence”, when “the constitutive or essential elements” of the act are missing, that is, “in the absence of [human] will [which presupposes the intervention of one or more subjects] or essential object”, and on the other hand, the invalidity or nullity ipso iure, or rescindibility, due to the absence of the elements “required by positive law… that do not affect the existence of the act”, that is, due to the lack of external elements.

From all the above we can then conclude that there are certain requirements or elements that, due to the very nature of things (ex natura rei), before and independently from any specific provision of positive law, must necessarily converge for any juridical act in general (or a particular type of juridical act) to exist.

But ... what is this conclusion useful for, faced with the (anti)papal question that occupies us?

To get out of the deception soon...

The false analogy

Let us return to the hypotheses offered by Mr. Grant, referring, respectively, to a possible “grave fear unjustly inflicted” in BXVI’s “resignation”, and to a null marriage contract/sacrament due to some impediment –circumstances that, according to our author, only from their eventual formal declaration by means of a ruling of nullity of the respective act, issued by the competent ecclesiastical authority, would determine the official breaking of the presumption of validity and therefore acquire binding force and moral certainty for the interested parties–.

If we learned something in the preceding section of this writing, we can see that both hypotheses start –although without the technical details– from the basis that the internal elements of the act are satisfied, but the external elements are not: in the first hypotheses, the fault would consist in the lack of freedom in the “resignee’s” consent; in the second, the fault would be the presence of impediments in the contracting parties.

But... attention! Here comes the quid of our dissertation:

As might be remembered, in our book (Benedict XVI: Pope “Emeritus”?) we emphatically and repeatedly argued –and demonstrated– that BXVI’s “resignation” was null/non-existent, not because of the lack of any external requirement or element of the act –as would be precisely the lack of freedom in the Pope’s consent, due, for example, to “substantial error” or “grave fear unjustly inflicted”– but because of the lack of (nothing less than) its object –which is, as we have seen, an internal element–. Do not forget that in said work we established that the object of H.H. BXVI’s “resignation” (manifested in his famous Declaratio) never corresponded to the charge/ecclesiastical office (munus) of Roman Pontiff –dimension of ownership, of juridical positioning within the ecclesiastical structure– but, instead, to the exercise of some functions (ministerium) associated with that charge/office –practical dimension, service–, and therefore, if the pontificate did not exist as an object, the necessary consequence must be the non-existence of an alleged juridical act of resignation from the pontificate –non-existence that, according to the later demonstrations of our work, was deliberately “designed” by the Pope, who wanted to depart only de facto from the government of the Vatican, leaving, however, behind him an appearance of legal resignation–. Finally, do not forget either that we expressly set out our rejection of the thesis that BXVI’s resignation was null due to the vice of consent called “substantial error”[xi], and clarified that, lacking a true act of resignation from the pontificate on BXVI's part, the principle of subtraction of matter prevented us from considering the presence or absence of freedom in the consent of such a (nonexistent) act's author –so, we proceeded to examine whether or not the Pope acted freely by departing de facto from the Vatican, and in the face of this consideration, we ended up concluding in a positive sense–.

This means that our canonical demonstration on the nullity/non-existence of BXVI’s “resignation” from the pontificate, based on the lack of an object –internal element of the act–, has nothing to do with the hypotheses proposed by Grant, based on the lack of free consent of the resigning Pope, due to “grave fear unjustly inflicted”, and on the presence of some impediment in the spouses –external elements of the act–, and precisely for this reason is not subject to the conclusion that the cited writer determines for such hypotheses, that is, the applicability of the presumption of validity of the juridical act, destructible only by a nullity ruling, issued by the competent authority. Anyone that, proceeding analogically from Grant’s reasoning, wanted to silence our canonical demonstration in light of this presumption, would inevitably fall into the fallacy of false analogy (see Appendix, figure 3).

Let us dig a little deeper: what if, instead of a possibly vitiated consent (due to fear) in Benedict’s “resignation”, Grant had raised a (hypothetical) absolute lack of consent (due, for example, to an impersonation of the Pope, both in the signing of the Declaratio and in the public communication of its content)? Or if, instead of an impediment in one of the spouses, he had referred a case where the contracting parties were, not man and woman, but, to say something, man and horse, man and man, woman and woman, or, two women and one man, one dog and three cats etc.? Would the presumption of validity be applicable to these hypotheses, which reflect a clear non-existence of the juridical act due to the lack of its internal elements –such as consent and subjects, respectively–? And then, given that, in the (apparent) act of resignation from the pontificate that is “officially” attributed to BXVI, we have demonstrated the non-existence due to an absolute lack of object –internal element of the act–, shall we apply such a presumption? Of course not!

The examples and reasoning considered so far allow us to intuit this rule: the presumption in question applies exclusively to those acts that, although may lack some external element, fully meet the internal requirements –those necessary for the existence, whether of any juridical act, in general, or of certain types of acts in particular–[xii].

Now, in order to overcome intuitions, we would ask: is there, in canon law, a specific provision that collects and endorses the reasoning and examples that we have developed? And to this we would happily reply: yes, it does exist!, and it is nothing less than the aforementioned canon 124, this time in its § 2, which we will deal with immediately.

The missing piece: canon 124 § 2 and the nonexistence ex natura rei

Having eyes do you not see?

The cited norm, and its respective comment, are of the following tenor (emphasis added):

“The juridical act duly performed with respect to its external elements is presumed valid”.

“The § 2 of this c. establishes a presumption of validity in favor of the external appearance of juridical acts. It is a presumption iuris tantum that cannot be invoked if the lack of the essential constitutive elements of the act is proven”.

Truly, things could not be otherwise. The NON-BEING, that which naturally (ex natura rei, by the very nature of things, by the very structure of reality), EXISTS NOT, could never be considered as valid.

Let us return to the situation of the man who “marries” his horse (unfortunately, in our times it would not be impossible for this to happen, nor for the temple, the witnesses, the priest –even “Catholic”– and the rite to mediate in the matter). If the man in question regained his reason and decided to contract a Catholic marriage with a woman, would there be someone in his right mind who would demand, based on canon 1085 of the CCL[xiii], the prior official declaration of nullity of this “equine union”? And what if the preceding “union” were man-man? Non-existence ex natura rei: by definition, there is no marriage if it is not between two subjects of different sex.

And let us get back to our point: if we have demonstrated that BXVI never referred his “resignation” to his charge/ecclesiastical office of Pope, why do some demand from us, in order to consider that our adherence to him as Pope is legitimate, an official declaration of the nullity of the act? To this demand we respond, non-existence ex natura rei: by definition, there cannot be an act of resignation from the pontificate that does not have the pontificate as its object. It is a simple exercise of conceptualization, of natural reason, that does not require any juridical-institutional apparatus.

Thus, it is not true that, in the absence of a ruling to the contrary, issued by the competent authority, we must recognize in Francis the current Vicar of Christ: demonstrated –as it is– the natural non-existence of BXVI’s “resignation” due to the lack of object, neither this “act” nor the subsequent “election” of Cardinal Bergoglio enjoys any presumption of validity. Benedict is still the Pope; natura authorizes us to proclaim it, and that’s enough.

Having eyes do you not see?

APPENDIX

Figure 1

Figure 2

Figure 3

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Notes

[i] In addition to its original in Spanish (https://mybook.to/BenedictoTP), the book is today available in three other languages: Portuguese (https://mybook.to/BentoTP), English (https://mybook.to/BenedictTP) and Italian (https://mybook.to/BenedettoTP).

[ii] Cf. https://www.lifesitenews.com/news/did-benedict-really-resign-gaenswein-burke-and-brandmueller-weigh-in/; https://romalocutaest.com/2021/04/10/being-wrong-the-ontology-of-the-bip-argument/; https://onepeterfive.com/benevacantists/; https://youtu.be/00v9WHmwxpY; https://www.youtube.com/watch?v=GiC0EcRXEzI&t=3s.

[iii] Cf. “Adversus Fallacies: A reply in defense of the book Benedict XVI: Pope “Emeritus”?”: https://katejon.com.br/wordpress/?p=2167#.YT_JW1VKjIU (Spanish); https://katejon.com.br/wordpress/?p=2179#.YT_JeVVKjIU (Portuguese); https://katejon.com.br/wordpress/?p=2175#.YT_JdFVKjIU (English).

[iv] Those who insist that "Catholics are not in a position to criticize/judge Pope Francis; on the contrary, we have the duty to pray for him, so that he may be a “good Pope” and confirm his brothers in the faith", commit the fallacy of begging the question: they (gratuitously) include as a premise the proposition to be demonstrated –that Francis is a true Pope–. The fact is that, from the general and abstract duty of every Catholic to pray for every (true) Pope, in no way can it be deduced that a specific person, Jorge Mario Bergoglio, is the true Pope, in an also specific historical period.

Now, given that in our book ("Benedict XVI: Pope “Emeritus”?”) we have offered ample support –not satisfactorily refuted so far– of the opposite proposition –that is, that Francis is not really the Pope–, we can allow ourselves a bit of humor: expecting Francis to be a good Pope is, from a logical point of view, equivalent to talking about the bald children of childless Antonio! If Antonio is childless, it is not possible to speak of his bald, hairy, tall, short, skinny, fat children, for the obvious reason that, lacking the subject (the children), there is no room for the adjectives (bald, hairy etc.). In the same way, if Francis is not Pope –and the reminder of the Catholic duty to pray for the Pope, whoever he may be, does not undermine this denial– there is no point in proclaiming that he is a “bad Pope” or expecting him to be a “good Pope”. Again: lacking in Francis the juridical position of Roman Pontiff, qualifications about the performance of such a position become logically impossible. Subtraction of matter, this is called.

[v] https://onepeterfive.com/benevacantists/.

[vi] https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_14091994_rec-holy-comm-by-divorced_en.html.

[vii] Cf. TORRES-DULCE LIFANTE, Miguel Ángel. La subsanación de la nulidad procesal canónica. In: Cuadernos Doctorales, Vol. 6 (1988); pp. 519-577. [consulted 13 sep. 2021] Available on: https://core.ac.uk/download/pdf/83562427.pdf.

[viii] Which, as known, constitutes an auxiliary or subsidiary source of canon law (canon 19 of the CCL).

[ix] Cf., both for this and for future canons in reference: CÓDIGO DE DERECHO CANÓNICO. 6ª ed. Pamplona: Ediciones Universidad de Navarra S.A., 2001.

[x] Ibid., comment of Dr. Eduardo Molano, Ordinary Professor of Constitutional Canon Law, Faculty of Canon Law of the University of Navarra.

[xi] For a complete rebuttal of the "substantial error" theory, see: https://old.patrickcoffin.media/his-holiness-benedict-xvis-declaratio-and-the-myth-of-substantial-error-part-i/; https://old.patrickcoffin.media/his-holiness-benedict-xvis-declaratio-and-the-myth-of-substantial-error-part-ii/; https://old.patrickcoffin.media/his-holiness-benedicts-declaratio-and-the-myth-of-substantial-error-part-iii/; https://www.patrickcoffin.media/his-holiness-benedicts-declaratio-and-the-myth-of-substantial-error-part-iv/; https://old.patrickcoffin.media/his-holiness-benedicts-declaratio-and-the-myth-of-substantial-error-part-v/

[xii] At the end of the present article, we include as an appendix the graphic illustration of the preceding explanations.

[xiii] “§ 1. A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage.

§ 2. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly”.

[xiv] In general –for any juridical act–, a horse is not a subject of law.

[xv] The plurality of subjects is a structural requirement in every juridical act of sale.

[xvi] The sex disparity between the contracting subjects is a structural requirement in the matrimonial contract/sacrament.