Catholic Encyclopedia (1913)/Moral and Canonical Aspect of Marriage

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Catholic Encyclopedia
Moral and Canonical Aspect of Marriage by Joseph Selinger
103694Catholic Encyclopedia — Moral and Canonical Aspect of MarriageJoseph Selinger

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.


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 It was instituted by God, is subject to the Divine law, and cannot for that reason be rescinded by human law.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.


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. 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. When, 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 Schmalzgrüber, 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.


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" (29 June, 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, 27 March, 1909). (For the procedure in case of appeals from countries under the jurisdiction of Propaganda, see PROPAGANDA.)


The marriage law, known by its initial words, "Ne temere", went into force on Easter Sunday, 18 April, 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 revalidation - as 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 favour of mixed marriages, not even when one party is a Catholic of an Eastern Rite. By a special dispensation, mixed marriages - i. e., both parties being baptized, one a Protestant, the other a Catholic - of 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 (18 March, 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 (7 March, 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.


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 re-marry. 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.


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. (1) 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 Apostolicæ Sedis, year 2, vol. II, no. 7, 30 April, 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 Apostolicæ Sedis", vol. II, n† 8, p. 348, 26 Feb., 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 void - e. 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 recognize 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 internis 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 bond - is 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 marriage - e. 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 essentially a sacrament, as we have seen, any condition made to exclude the sacrament from the contract would nullify the latter.

Besides innumerable Latin text-books on moral and canon law in which marriage is discussed, and many treatises in other languages on the same subject, the following are mentioned as being more accessible to English and American readers: SLATER, A Manual of Moral Theology, with notes by MARTIN on American legislation, II (New York, Cincinnati, Chicago, 1909), v, vii, xii; DEVINE, The Law of Christian Marriage (New York 1908), 47-127; CRONIN, The New Matrimonial Legislation; LECKY, History of European Morals, II (London, 1877); BISHOP, Commentaries on the Law of Marriage and Divorce, I (Boston, 1881); AMRAN, The Jewish Law of Divorce according to Bible and Talmud; BEBEL, Die Frau und Sozialismus (50th ed.).