Civil Marriage

CIVIL MARRIAGE. —

1. Definition and various types

Civil marriage is obligatory or necessary if it must be contracted before the civil official and solely in accordance with civil laws, under penalty of having no civil ef-

fects; such is the case in France, Germany, Hungary, Portugal, Switzerland, the Netherlands, Denmark, Norway, Sweden, Luxembourg, Brazil, Argentina, and various Republics of South America. In many of these nations, the precedence of civil marriage over religious marriage is also established, with penalties attached (cf. France, Switzerland, Germany, where a qualification is provided in art. 20 of the Concordat, etc.).

It is free or optional if everyone may contract it either before a minister of religion, in accordance with civil and ecclesiastical laws, or before the civil official, solely in accordance with civil laws; such is the case in England and in the United States of North America, with the authorization of the civil official.

It is subsidiary if civil law permits it to be contracted before the civil official by those who profess no religion and by Christian subjects in general who, not having a religious community, likewise have no minister of religion authorized to receive their matrimonial consent; or if, although there is a legitimate minister of religion, he justly refuses to assist at the Marriage because of some impediment not dispensed from but unrelated to civil law; such is the case in Greece, Bulgaria, Austria, certain Republics of South America, the province of Québec (Canada), and today, after the changes introduced, though in the opposite sense in their respective Civil Codes, in Spain and the Republic of S. Marino.

2. Historical notes. — In Catholic countries, a certain form of civil marriage was first introduced in the Netherlands and West Frisia in 1580, for reasons of tolerance and as an optional form for the Reformed, but obligatory for dissenters. These provisions were extended in 1656 to the whole of the Netherlands. For reasons instead of principle, civil marriage was instituted in England, Scotland, and Ireland in 1653, almost as a means of relieving the Church of a temporal concern. But this was quite different from the civil marriage that took hold with the French Revolution, since this legislation was in no way a denial of the religious principles governing Marriage. The premises of civil marriage, as it was subsequently implemented by the French Revolution, originated in the sixteenth century, with the doctrine of the distinction between the contract and the Sacrament of Marriage, characteristic of the regalists and Gallicans. If marriage involves a contract distinct from the Sacrament, it can be regulated, like all other contracts, by the State. On the basis of this principle, jurists of the eighteenth and nineteenth centuries, under the further impulse of the Enlightenment, rationalism, and secularism in general, elaborated the theory of civil marriage, which between 1781 and 1792 was implemented in numerous States hitherto regarded as Catholic or Christian.

A secularization of marriage, even though it was not yet civil marriage, took place under Joseph II, who acted under the influence of the principles set out above. The edicts of 1781 on the rights of bishops to grant dispensations without recourse to Rome; those of 16 Jan. 1783 (Austria) and 28 Sept. 1784 (the Netherlands), which reserved to the State everything concerning the civil contract and to the civil courts the adjudication of matrimonial cases, and which regarded the priest who had blessed the Marriage as a public official—edicts imitated in Tuscany under Leopold II in 1786—were the most advanced steps along this path. In France too, the monarchy, though more covertly, and the Parliaments, more openly, had made considerable progress along it, in fact restricting the field of the Church’s competence, even though that competence was theoretically recognized and respected. The edict of the Parliament of Paris of Nov. 1787, by regulating the civil status of the marriages of non-Catholics, provided the final practical precedent for civil marriage. This was sanctioned for the first time in the French Constitution of 3–14 Sept. 1791 (title II, art. 7), followed by new and purely civil legislation on marriage with the introduction of divorce.

When the First Consul, Napoléon, undertook the codification of the civil laws, matrimonial laws became the subject of discussion, but civil marriage ultimately entered the Code (arts. 63–76; 144–228) in all three promulgations (1804, 1807, 1816). Indeed, chiefly through the influence of this Code, civil marriage became part of other legislations: in 1818 in Belgium, in 1855 in the Canton of Ticino, in 1864 in Romania, in 1868 in Austria, in 1874 in Prussia (with the new Code, civil marriage received a new regulation throughout Germany), in 1776 throughout Switzerland, in 1888 in Argentina, in 1890 in Brazil, in 1895 in Hungary, in 1897 in S. Domingo and Peru, etc. The introduction of civil marriage in the countries of the Bolshevik bloc was prompted by very different influences.

3. Civil marriage in Italy. — Following the French conquest, the Napoleonic Code, which incorporated the institution of civil marriage, was extended to Italy.

The institution, however, was completely disregarded and indeed aroused lively repugnance among all social classes. After Napoléon fell, the Italian States substantially returned to recognition of religious Marriage. The new Codes that followed (Kingdom of the Two Sicilies, 1819; Parma, 1820; Albertine, 1837) made no changes in this matter. An attempt to introduce civil marriage was made in Piedmont through art. 7 of the Siccardi Law of 9 Apr. 1850 and the subsequent government bill of 126 articles, which passed the Chamber but was rejected in the Senate by a single vote (1852). Thirteen years later, however (1865), after the unification of the Kingdom of Italy, the new Civil Code entered into force; in its articles it made civil marriage an institution of the State (title V, section II, art. 55 added).

With the Lateran Pacts (11 Feb. 1929) between the Holy See and Italy, the regulation of marriage underwent a radical transformation through art. 34 of the Concordat and its applications in Italian legislation.

These provisions did not, however, abolish civil marriage, currently regulated by title VI (arts. 79–230) of the new Civil Code, but merely transformed it from obligatory to optional, creating two types of marriage if the rules of substantive law relating to it are considered; and three if one considers the rules governing the form for the civil effects also recognized in Marriage celebrated before ministers of recognized religions.

4. Catholic doctrine. — The Church disapproves of and condemns civil marriage for the baptized, as an attack upon her own rights and upon freedom of conscience, and as a source of incalculable harm to public morality. Indeed, among the baptized there can be no Marriage that is not at the same time a Sacrament (can. 1012), so that every marital union of Catholics outside the Sacrament of Marriage is intrinsically perverse and reprehensible as true and simple concubinage.

Nevertheless, where civil marriage is obligatory, the faithful may contract it licitly, provided that they intend to perform a purely civil ceremony. Indeed, they are obliged to perform this act in order to avert the danger of serious harm to themselves and to their offspring. If possible, they must first contract religious Marriage; and if they must first perform the civil act, they may not cohabit until the religious Marriage, because by the civil act alone they are not yet true spouses (S. Penitentiary, 15 Dec. 1865).

With the same intention of carrying out a purely civil ceremony, the civil official may also licitly attend such a Matrimonio. It is disputed whether he may attend it even when he knows that the parties will not subsequently celebrate the Matrimonio religioso, or that a divine or ecclesiastical impediment stands in the way of this Matrimonio. The prevailing opinion, however, is that such attendance, since it is not intrinsically evil, may also be licit for a proportionately grave reason, which, especially in the second case, ought to be extremely grave.

For those, on the other hand, who voluntarily contract m. c., especially if they are clerics bound by ecclesiastical celibacy, the Church imposes severe penalties.

Clerics already in major Orders, and those who contract m. c. with them, incur excommunication latae sententiae reserved simpliciter to the Holy See (can. 2388 § 1), instantly (ipso facto) forfeit every ecclesiastical office (can. 188 n. 5), and, if, after being admonished, they give no sign of repentance, must be degraded (can. 2388 § 1). If they are religious, they are to be considered legitimately dismissed (can. 646 § 1, n. 3).

Finally, laymen bound by a previous Matrimonio religioso who presume to contract another marriage, even only civilly, are thereby infamous and, if they persist, must be excommunicated or subjected to a personal interdict (can. 2356).