Moral and Canonical Aspect of Marriage

Marriage is that individual union through which man and woman by their reciprocal rights
form one principle of generation. It is effected by their mutual consent to give and accept
each other for the purpo
Marriage, MORAL AND CANONICAL ASPECT OF, Marriage is that individual union
through which man and woman by their reciprocal rights form one principle of generation. It
is effected by their mutual consent to give and accept each other for the purpose of
propagating the human race, of educating their offspring, of sharing life in common, of
supporting each other in undivided conjugal affection by a lasting union.

Contents

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I. MARRIAGE INSTITUTED BY GOD

II. MARRIAGE IN THE CHRISTIAN DISPENSATION
III. MATRIMONIAL COURTS IN THE CHURCH
IV. THE NEW MARRIAGE LEGISLATION
V. MARRIAGE INDISSOLUBLE EXCEPT BY DEATH
VI. MATRIMONIAL CONSENT

I. MARRIAGE INSTITUTED BY GOD

Marriage is a contract and is by its very nature above human law. It was instituted by God,
is subject to the Divine law, and cannot for that reason be rescinded by human law. Those
who contract marriage do so indeed by their own free wills, but they must assume the
contract and its obligations unconditionally. Marriage is natural in purpose, but Divine in
origin. It is sacred, being intended primarily by the Author of life to perpetuate His creative
act and to beget children of God; its secondary ends are mutual society and help, and a
lawful remedy for concupiscence. Human law certainly takes cognizance of marriage, but
marriage not having been established by man, its essential properties cannot be annulled by
such law. Marriage is monogamic and indissoluble; death alone dissolves the union when
consummated.
When men pretend to be the final arbiters of the marriage contract, they base their claim on
the assumption that this contract is merely of human institution and is subject to no laws
above those of man. But human society, both in its primitive and organized form, originated
by marriage, not marriage by human society. Marriage was intended by the Creator for the
propagation of the human race and for the mutual help of husband and wife. The
monogamic and indissoluble properties of marriage were for a time dispensed by Divine
permission. Thus in the patriarchal times of the Old Testament polygamous marriage was
tolerated. The right of dismissal also by the bill of divorce was legal (Deut., xxiv sqq.; Matt.,
xix, 3-12). Still, marriage never lost its sacred character in the Old Dispensation. It
continued a type and figure of marriage in the New Law. Other nations besides the Jews
treated marriage with such regard and ceremony as betoken their belief in its superhuman
character. Evolutionists, indeed, account for marriage by the gregarious habits of human
beings. They consider it a developed social instinct, a matter of utility, convenience, and
decency, a consequence of sexual intercourse, which human society decided to regulate by
law, and thus encourage a state of affairs conducive to the peace and happiness of the race.
They do not deny that the religious feeling latent in the human heart regarding marriage

and the religious ceremonies attendant on its celebration have their utility, but they insist
that marriage is entirely a natural thing. Socialists entertain this same view of marriage;
they deprecate excessive state control of the marriage contract, but would impose the duty
of providing for, and educating, children on the State. The ethical value of marriage is
certainly lowered by such views. Marriage, though contracted to preserve order, would still
remain subject to human caprice. It would not bind the couple to an inseparable union. It
would exclude polyandry, but not polygamy or divorce. By principles borrowed from
Christian tradition, polygamy, strange to say, is proscribed even by those whose ethics of
marriage are naturalistic, evolutionary and socialistic.

II. MARRIAGE IN THE CHRISTIAN DISPENSATION

Christ revoked the dispensation granted in the Mosaic law. He promulgated the original
Divine law of monogamic and indissoluble marriage; in addition, He raised marriage to the
dignity of a sacrament (Gen., ii, 24; Matt., xix, 3 sqq.; Luke, xvi, 15 sqq.; Mark, x, 11 sqq.;
I Cor., vii, 2 sqq.)."If any one should say, matrimony is not truly and properly one of the
seven sacraments of the Gospel law, instituted by Christ, but an invention of man, not
conferring grace, let him be anathema" (Council of Trent, Sess. XXI, can. 1). Under the
Christian law, therefore, the marriage contract and the sacrament are inseparable and
indivisible; for, in virtue of Christ's legislative act, the consent in marriage produces, besides
sanctifying grace, its peculiar sacramental grace. Whenever the marriage contract is duly
made, the sacrament is truly effected. That is undoubtedly the case when both parties to
marriage are by baptism members of the mystical body of Christ, for "This is a great
sacrament; but I speak in Christ and in the church" (Ephes., v, 32). Hence the moral and
canonical aspect of matrimony in the Christian dispensation is necessarily determined by the
sacramental character of the marriage contract.
A. The Church being the Divinely appointed custodian of all sacraments, it belongs to her
jurisdiction to interpret and apply the Divine law of marriage. She cannot repeal or change
that law. Marriage is, in its essential requirements, ever the same, monogamic and
indissoluble. The contract validly made and consummated is dissolved by death alone.
However, the Church must determine what is required for a valid and licit marriage contract.
Doubt in so grave a matter, or uncertainty as to the form and duties of marriage, would be
disastrous for the temporal and spiritual good of individuals and of society. The Church
safeguards the sacramental contract by unremitting solicitude and directs the consciences
and conduct of those who marry by moral teaching and canonical legislation. The procedure
of her courts in cases where the validity or legality of a marriage is involved, is ordered by
admirable insight. The Church derives her power to legislate in matrimonial affairs, not from
the State, but from Christ; and acts, not on sufferance, but by Divine right. She recognizes
the duty of the State to take cognizance of Christian marriage, in order to insure certain
civic effects, but her jurisdiction is superior and of Divine origin.
B. The laws of the Church governing Christian marriage are fundamental and unchangeable
laws; or accidental, circumstantial, and changeable laws. The natural law, Divine revealed
law, and the Apostolic law of marriage are interpreted by the Church, but never repealed or
dispensed from. Circumstantial laws are enacted by the Church, and may vary or be
repealed. Hence disciplinary laws, regulating solemnities to be observed in marriage, and
laws defining qualifications of parties to marry, are not so rigid as to admit of no change, if
the Church sees fit to change them, owing to difference of time and place; the change too
may affect the validity or the legality of a marriage. The Church, therefore, has laid down
the conditions requisite for the validity of the matrimonial consent on the part of those who
marry, and has legislated on their respective rights and duties. The marriage bond is sacred;
married life symbolizes the union between Christ and His Church (Ephes., v, 22 sqq.) and

the Church protects both by such rules as will maintain their Christian characteristics under
all circumstances.
C. The moral law looks to the conduct of those who marry; canon law regulates matrimonial
courts of the Church. There is no marked point of difference between them; they rather
form a complete system of legislation concerning the Sacrament of Marriage. Of course
baptized persons alone receive the sacraments. Some theologians regard a marriage in
which only one party is baptized as a sacrament. Whether those who have been baptized,
but are not members of the body of the Church, or unbaptized persons are exempt from all
purely Church matrimonial law is a disputed question.
D. As citizens of the State, Christians should certainly comply with the civil laws regulating
marriage for certain civil effects, though they must not consider the marriage contract as
something distinct from the sacrament, for the two are inseparable. One result of the
defection from the Church in the sixteenth century was a belief that marriage is a civil
ceremony. The opinion of several canonists, who, wishing to justify this view, taught that
the contract of marriage might possibly be separated from the sacrament, was condemned
in the syllabus of Pius IX in 1864 (numbers 65 and 66). It is likewise erroneous to consider
the priest the minister of the sacrament; he is the authorized witness of the Church to the
contract. The parties contracting really administer the sacrament to themselves.
E. It is historical fact that the Church always recognized the right of the State to legislate in
certain respects concerning marriage, on account of its civil effects. The enactment of laws
fixing the dowry, the right of succession, alimony and other like matters, belongs to the
secular authorities, according to the common teaching of canonists. hen, however, the State
enacts laws inimical to the marriage laws of the Church, practically denying her right to
protect the sacred character of matrimony, she cannot allow her children to submit to such
enactments. She respects the requirements of the State for the marriages of its citizens as
long as those requirements are for the common good, and in keeping with the dignity and
Divine purpose of marriage. Thus, for instance, she recognizes that a defect of mind or a
lack of proper discretion is an impediment to matrimony. Certain defects of body,
particularly impotency, disqualify likewise. The Church, on the other hand, justly expects the
State to treat her laws, such as those of celibacy, with respect (see Schmalzgriiber, vol. IV,
part I, sect. 2; and vol. IX, part II, title 22, for obsolete canonical rules). A marriage is said
to be canonical or civil: canonical, when contracted in accordance with Church law; civil, if
the ordinances of civil law are observed. In addition, we sometimes speak of a secret
marriage, or a marriage of conscience, that is, a marriage of which the banns have not been
published, celebrated by the parish priest and witnesses under bond of secrecy, with the
bishop's permission. A true marriage is one duly contracted and capable of being proved in
the ordinary way; a presumptive marriage, when the law presumes a marriage to exist; a
putative marriage, when it is believed to be valid, but is in reality null and void, owing to the
existence of a hidden diriment impediment.
There is, again, a special kind of marriage which needs explanation here. When a prince or a
member of a ruling house weds a woman of inferior rank, especially if her family is plebeian,
the marriage is generally known as a morganatic marriage. In this case it is as valid and licit
before the Church as any other lawful marriage, but there are certain civil disabilities. First,
the children born in such wedlock have no right to the title or crown of their father, since
those who are to succeed him ought not to suffer from the social disadvantages arising from
the inferior rank of their father's morganatic wife. In some countries, however, the law
concedes a hope of succession to such children if all the direct heirs should die. The
morganatic wife and her children receive, by agreement or stipulation, a dowry and means

of support, the amount being in some countries at the discretion of the king or prince, in
others fixed by law.

III. MATRIMONIAL COURTS IN THE CHURCH

Doubtful marriage cases are decided in courts provided by the canon law for that purpose.
The doubt may arise from a supposed hidden or occult impediment or from a public
impediment. In the former case (occult impediment) the question is decided pro foro interno
in the tribunal of penance or by the penitentiary Apostolic at Rome. In such cases strict
secrecy, similar to that of the confessional, is observed, particularly with regard to names
and places of residence. In the latter case (public impediment) the doubt has always to be
settled pro foro externo in the matrimonial courts; for no general laws can be made to cover
all possible circumstances, and the practical application of the canonical and moral laws of
marriage to actual cases, just as happens with civil laws, involves at times questions de jure
and de facto, which must be settled by competent judges. In every diocese presided over by
a bishop and especially in every metropolitan see, the canon law requires a matrimonial
court. Such a court has no power to legislate, but adjudicates according to the laws and the
precedents of the Roman courts. Bishops of dioceses, national and provincial councils may,
however, enforce stricter observance of the general laws in their respective jurisdictions; if
peculiar circumstances require it, they can legislate against abuses and insist on special
points of law; for instance, they may demand certain qualifications in witnesses to marriage,
and prescribe certain preliminaries for mixed marriages, binding on priest and people under
pain of sin. From the decisions of the diocesan and the metropolitan courts, particularly in
questions involving nullity of marriage, appeal can be taken to the courts of the Holy See.
The decisions of these courts are final, especially when the Holy Father approves them. In
rare cases a reopening is allowed, and then, usually because new evidence is offered. Since
Pius X reorganized the Roman Curia by the Constitution "Sapienti consilio" (June 29, 1908),
such appeals must be made to the congregation, tribunal or office specified in that
Constitution to deal with them: "For the future every question regarding mixed marriages is
to be brought before the Congregation of the Holy Office; likewise, all points which either
directly or indirectly, in fact or in law, refer to the Pauline Privilege" (Answer of the
Congregation of the Consistory to letter of Holy Office, March 27, 1909). (For the procedure
in case of appeals from countries under the jurisdiction of Propaganda, see Sacred
Congregation of Propaganda.)

IV. THE NEW MARRIAGE LEGISLATION

The marriage law, known by its initial words, "Ne temere", went into force on Easter
Sunday, April 18, 1908. The principal changes it made in the Church's matrimonial
legislation relate to clandestine marriages (which it makes null and void for all Catholics of
the Latin Rite) and to questions incidental thereto. The law enacts that a marriage of
Catholics of the Latin Rite is licit and valid only if contracted in the presence of the ordinary,
or the parish priest, or a priest delegated by either, and at least two witnesses. Any priest
may revalidate a sinful or an invalid marriage of those who through sickness, are in serious
danger of death, unless their case is such as admits of no revalidationas for instance, if
they are in holy orders. Again, in the case of those who live in districts where no priest
resides, and who cannot without serious hardship go to one, the new law provides that, if
such condition has lasted a month, they may marry without a priest, but in the presence of
two witnesses, the record of their marriage being properly made as prescribed. The law
makes no exception in favor of mixed marriages, not even when one party is a Catholic of
an Eastern Rite. By a special dispensation, mixed marriagesi.e., both parties being
baptized, one a Protestant, the other a Catholicof Germans marrying within the

boundaries of the German Empire are valid, though clandestinely contracted. A like
dispensation has been granted to Hungarians marrying within the boundaries of Hungary;
and according to the Secretary of the S. Congregation of Sacraments (March 18, 1909),
Croatians, Slavonians, inhabitants of Transylvania, and of Fiume enjoy a similar
dispensation. Catholics of the various Eastern rites, who are in union with the Holy See, are
exempt from the law; likewise all non-Catholics, except those who have been baptized in
the Church, but have fallen away.
The law is not retroactive. Marriages contracted before its promulgation will be adjudicated,
in case of doubt, according to the laws in force at the time and place of marriage. It
simplifies procedure. Former difficulties arising from quasi-domicile are done away with by a
month's residence, even when taken in fraudem legis; the ordinary or the parish priest is
the authorized witness of the Church, and he or a priest, delegated by him by name, can
assist validly at any marriage within his territory, even though the parties come from
without it; though, of course, such ordinary or parish priest needs, and should ask for,
letters of permission from the proper authority to assist licitly at such a marriage. The local
authorities may increase the punishment assigned in the text of the law for any infraction of
this provision. By a decree of the Sacred Congregation of the Sacraments (March 7, 1910),
the power to dispense kings or royal princes from impediments, diriment or impedient is
henceforth reserved in a special manner to the Holy See, and all faculties granted
heretofore in such cases to certain ordinaries are revoked. In the peculiar circumstances of
certain Indian dioceses (see India. Double Jurisdiction), the question has been asked:
Whether for persons residing in India within a double jurisdiction, it is sufficient, in order to
a valid and licit marriage, to stand before the personal parish priest of one or both; or
whether they must also stand before the territorial parish priest. The question having been
referred to the Holy Father, the Congregation of the Sacraments replied, with the
approbation of His Holiness, in view of the peculiar circumstances, affirmatively to the first
part; negatively to the second part.

V. MARRIAGE INDISSOLUBLE EXCEPT BY DEATH

It must again be repeated here that the Church teaches, and has always taught, that death
alone can dissolve a ratified and consummated Christian marriage. When the death of either
party is not proved by such evidence as is required by canon law, there is no permission to
remarry. The instruction "Matrimonii vinculo" (1868) is still strictly followed, as appears from
an answer of the Sacred Congregation of the Sacraments to cases that arose in the
earthquake district in Southern Italy in March, 1910. Marriages ratified but not
consummated by sexual intercourse are sometimes dissolved by the Roman Pontiff in virtue
of his supreme power; sometimes they are dissolved by entrance into the religious life and
by actual profession of solemn vows. Such dissolutions of marriages that are merely ratified
are in no sense subversive of "what God hath joined let no man put asunder" (Matt., xix, 6).
Again the matrimonial courts may find on the evidence adduced that a marriage is null and
void; there may have been a known or a hidden diriment impediment when the marriage
was contracted. In some instances such a marriage is revalidated after securing the
required dispensation, if such be possible, by a renewal of consent in proper form, or,
accepting the previous consent, which was never actually retracted, by remedying the
defect in radice. In other instances, the marriage being by juridical sentence declared null
and void, the parties to it are free to enter new alliances. But that is quite different from
granting a divorce in the case of a valid consummated marriage.

VI. MATRIMONIAL CONSENT

Those who marry do so by signifying their consent to be man and wife. Consent is of the
very essence of marriage, and it is in consequence of their free, deliberate consent that a
man and a woman become husband and wife. Marriage being a contract forming essentially
an indissoluble union, it is important to know whether the consent can be so defective as to
make a marriage morally and canonically invalid.
A. (I) The act of being married is the mutual consenting of the parties, the giving and
accepting of each other. "Thus the wife hath not power of her own body, but the husband.
And in like manner the husband also hath not power of his own body, but the wife" (I Cor.,
vii, 4). It is not sufficient to give the consent internally only, it must be signified by some
outward sign. Canon law does not absolutely require the personal presence of both parties
to marriage; but, one being present, giving his consent to marry the absent party, the
absent party must signify her consent by proxy or by letter. The Sacred Congregation of the
Rota recently decided a marriage to be valid at' which the consent of one party was given
verbally, and that of the other by letter. "Now although matrimony was raised to the dignity
of a sacrament by Christ, it did not lose the nature of a contract; hence, like other contracts,
it is perfected by consent of both parties. There is no obstacle, consequently, to contracting
marriage by letter" (see Acta Apostolicae, Sedis, year 2, vol. II, n 7, April 30, 1910, p.
300). The consent, however, must be signified in such a manner as to make the consent of
both parties clear and unmistakable to the priest and witnesses. The nature of the contract
as well as its consequent duties and properties are independent of the will of the parties
contracting. Hence, if by any implied or expressed condition one or both parties qualify the
contract in its essentials, the contract itself would be vitiated and nullified.
(2) The consent must be free and deliberate. Violence or coercion by fear in a degree so
great as to deprive either party of his freedom to dissent would invalidate the consent given.
The motives that prompt consent may be improper, but still they are compatible with the
freedom required, and hence do not nullify the contract. The fear need not be absolute but if
it be relatively so strong as to prompt external consent while the party dissents internally,
canon law considers the requisite freedom wanting, and the contract null and void (see
"Acta Apostolic Sedis", vol. II, n 8, p. 348, February 26, 1910).
(3) The party or parties giving consent in the act of marriage might be in error as to the
person or quality of person whom they are actually marrying. An error is an impediment
based on natural law. Natural law protects the marriage contract; it requires that the object
of the consent shall be, not only naturally capable of the contract, but personally intended.
The marriage contract requires that the persons contracting should be definite. Ecclesiastical
law confirms this, and even extends its natural limits: if the error is as to the person, the
contract is null and voide.g., if, instead of the girl he consents to marry, her sister were
given in marriage by some accident or fraud. If the error is as to a personal quality, then the
law, to recogniize a plea of non-consent, requires that the quality should have been
absolutely intended by the party contracting, and it must be shown that such quality was a
condition sine qua non of the marriage. Thus, in ancient canon law, if a freeman married a
woman whom he believed to be free while in fact she was a bondwoman, his marriage was
null and void, unless, after discovering his error, he continued to live and cohabit with her.
B. A condition expressed or implied in the marriage contract may regard the past, the
present, or the future. It must be noted, however, that canon law, in foro externo, takes
into account such conditions only as are definitely expressed"De interns non judicat".
Conditions or intentions implied by both or either party consenting in marriage may
establish a case of conscience to be settled in the tribunal of conscience; but the courts take
no cognizance of it. Before the law a marriage is valid until the vitiating condition or
intention is established by certain proof. Hence a possible anomaly: a marriage invalid in

reality, yet valid before the law. In general, conditional consent in marriage is forbidden. A
parish priest may not permit it on his own authority. Parties to a marriage, however, might,
when they make the compact, put conditions, implied or expressed. Would that vitiate the
contract of marriage? If the condition concern the past or the present, the contract is valid if
the condition is verified at that moment, thus: "I take you for my husband, if you are the
man to whom I was betrothed." If the condition regard the future, it must be noted that, if
it frustrates any essential property of marriage, it nullifies the act of marriage; if it
postulates an act against the very nature of marriage, the marriage is null. Again, the
mutual rights acquired and given in marriage being exclusive and perpetual, any condition
added by both or one party to frustrate marriage in its natural consequences nullifies the
contracts. A resolve or intention, however, to sin against the nature of marriage, or to prove
unfaithful, is, of course, no such condition. But a consent in marriage qualified by conditions
such as to avoid procreation or birth of children, to have other wives or husbands
conditions excluding conjugal fidelity, denying the sacrament or perpetuity of the marriage
bondis a radically vitiated consent, and consequently of no value. Thus: "I marry, but you
must avoid having children"; or, "I marry you until I find someone to suit me better." The
condition must be actual, predominant in the will of one or both, denying perpetual union or
interchange of conjugal rights, or at least limiting them, to make the marriage null and void
(Decretals, IV, tit. v, 7).
There might be a sinful agreement between those contracting marriage which likewise
nullifies their marriagee.g., not to have more than one or two children, or not to have any
children at all, until, in the judgment of the contracting parties, circumstances shall enable
them to be provided for; or to divorce and marry someone else whenever they grow tired of
each other. Such an agreement or condition denies the perpetual duties of matrimony, limits
matrimonial rights, suspends the duty consequent on the use and exercise of those rights; if
really made a sine qua non of marriage, it necessarily annuls it; the parties would wish to
enjoy connubial intercourse, but evade its consequences. The agreement to abstain from
the use of conjugal rights is, however, quite different, and does not nullify the marriage
contract. The parties to the marriage fully consent to transfer to each other the conjugal
rights, but, by agreement or vow, oblige themselves to abstain from the actual use of those
rights. Now, if, contrary to their agreement or vow, either party should demand the actual
use of his or her right, it would not be fornication, though a breach of promise or vow. Such
a condition, though possible, is not frequent nor even permissible except in cases of rare
virtue.
Again, Christian marriage being a sacrament as well as a contract, can matrimonial consent
be such as to exclude the sacrament and intend only the contract? Christian marriage being
essentiallya sacrament, as we have seen, any condition made to exclude the sacrament
from the contract would nullify the latter.
JOS. SELINGER