### CIVIL MARRIAGE
#### 1. Definition and Different Types
Civil marriage is that contracted before a civil official and in accordance with civil law. After the French Revolution, it became established in almost all nations, with the sole difference that in certain States religious marriage is also recognized as civil marriage, whereas in other States it is not. Hence the different types of civil marriage.
Civil marriage is obligatory or necessary if it must be contracted before a civil official and solely in accordance with civil laws, under penalty of not having civil effects; this is the case in France, Germany, Hungary, Portugal, Switzerland, Holland, Denmark, Norway, Sweden, Luxembourg, Brazil, Argentina, and various republics of South America. In many of these nations, precedence of civil marriage over religious marriage is also established with the threat of penalties (cf. France, Switzerland, Germany, where there is a mitigation in art. 26 of the Concordat, etc.).
It is free or optional if all may contract it either before a minister of religion, in accordance with civil and ecclesiastical laws, or before a civil official, solely in accordance with civil laws; this is the case in England and in the United States of North America, with the license of the civil official.
It is subsidiary if civil law permits it to be contracted before a civil official by those who profess no religion and by Christian subjects in general who, not having a religious community, also lack a minister of religion authorized to receive their matrimonial consent; or if, even though there is a legitimate minister of religion, he justly refuses to assist at the marriage due to some impediment not dispensed from, but extraneous to civil law; this is the case in Greece, Bulgaria, Austria, some republics of South America, the province of Quebec (Canada), and today, after modifications made in an opposite sense in their respective civil codes, in Spain and in the Republic of San Marino.
#### 2. Historical Notes
In Catholic countries a certain type of civil marriage was first introduced in Holland and in the Western provinces in 1580 for reasons of tolerance and as optional for the Reformed, but obligatory for dissenters. These provisions were extended in 1656 to all the Netherlands. In England, Scotland, and Ireland, on the other hand, civil marriage was instituted in 1653 for reasons of principle, almost to relieve the Church of a temporal matter. But it was quite different from the civil marriage that took hold with the French Revolution, inasmuch as this legislation was not at all a negation of the religious principles that govern marriage. The premises of civil marriage, as it was later implemented by the French Revolution, have their origins in the 16th century, with the doctrine of the distinction between the contract and the Sacrament of Marriage, characteristic of regalists and Gallicans. If marriage is a contract distinct from the Sacrament, it can be regulated, like all other contracts, by the State. With this principle, the jurists of the 18th-19th centuries, under the impulse of Enlightenment, rationalism, and secularism in general, developed the theory of civil marriage, which between 1781 and 1792 was implemented in numerous States hitherto considered Catholic or Christian.
A secularization of marriage, even if it was not yet civil marriage, occurred with Joseph II, who acted under the influence of the principles outlined above. The edicts of 1781 on the rights of bishops to grant dispensations without recourse to Rome, of 16 January 1783 (Austria) and of 28 September 1784 (Netherlands), which reserve to the State all that pertains to the civil contract and to civil tribunals the judgment of matrimonial causes, and consider the priest who has blessed the marriage as a public official—edicts imitated in Tuscany under Leopold II in 1786—are the most advanced steps along this path. Along this path, too, in France the monarchy, more covertly, and the Parliaments, more openly, had made considerable progress, in fact restricting the field of competence of the Church, even if theoretically recognized and respected. The edict of the Parliament of Paris of November 1787, going so far as to regulate the civil status of marriages of non-Catholics, provided the last practical antecedent of civil marriage. This was sanctioned for the first time in the French Constitution of 3-14 September 1791 (title II, art. 7), which was followed by new and purely civil legislation on marriage with the introduction of divorce.
When the First Consul, Napoleon, undertook the codification of civil laws, matrimonial laws were the subject of discussion, but civil marriage ended up being included in the Code (arts. 63-76; 144-228) in all three promulgations (1804, 1807, 1816). Indeed, above all through the influence of this Code, civil marriage entered into 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 in the entire Switzerland, in 1888 in Argentina, in 1890 in Brazil, in 1895 in Hungary, in 1897 in San Domingo and Peru, etc. The introduction of civil marriage in the countries of the Bolshevik league responded to quite different influences.
#### 3. Civil Marriage in Italy
Following the French conquest, the Napoleonic Code, which included the institution of civil marriage, was extended to Italy.
The fact, however, was completely ignored, indeed it aroused lively repugnance in all social classes. With the fall of Napoleon, the Italian States returned substantially to the recognition of religious marriage. The new Codes that followed (Kingdom of the Two Sicilies, 1819; Parma, 1820; Albertine, 1837) did not bring modifications on the subject. An attempt to introduce civil marriage was made in Piedmont with art. 7 of the Siccardi Law of 9 April 1850 and with the subsequent government project of 126 articles, which passed to 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 came into force, which in its articles made civil marriage an institution of the State (title V, sect. II, art. 35 et seq.).
With the Lateran Pacts (11 February 1929) between the Holy See and Italy, the regulation of marriage underwent a radical transformation, with art. 34 of the Concordat and its applications in Italian legislation.
These provisions, however, did not abolish civil marriage, which is currently regulated by title VI (arts. 79-230) of the new Civil Code, but transformed it from obligatory to optional, creating two types of marriage if one considers the norms of substantive law relating to it; and three, if one considers the norms that regulate the form for civil effects recognized also for marriages celebrated before the ministers of admitted cults.
#### 4. Catholic Doctrine
The Church reproves and condemns civil marriage for the baptized as an attack on its rights and on 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 also a Sacrament (can. 1012), so that every marital union of Catholics outside the Sacrament of Marriage is intrinsically perverse and reprehensible as a true and simple concubinage.
However, where civil marriage is obligatory, the faithful may contract it licitly, provided they intend to perform a purely civil ceremony. Indeed, they are bound to perform this act 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 religious marriage is contracted, because with the civil act alone they are not yet true spouses (S. Penitenziera, 15 December 1865).
With the same intention of performing a purely civil ceremony, a civil official may lawfully attend such a marriage. There is debate over whether he may attend when he knows that the contracting parties will not subsequently celebrate a religious marriage, or when such a marriage is opposed by a divine or ecclesiastical impediment. The prevailing opinion, however, is that such attendance, being not intrinsically evil, may also be lawful for a proportionately grave reason, which, especially in the second case, should be most serious.
For those, on the other hand, who voluntarily contract a civil marriage—especially if they are clerics bound by ecclesiastical celibacy—the Church imposes severe penalties.
Clerics already in major orders and those who contract a civil marriage with them incur a latae sententiae excommunication reserved simply to the Holy See (can. 2388 § 1), automatically (ipso facto) lose every ecclesiastical office (can. 188 n. 5), and if, after admonition, they do not show signs of repentance, must be degraded (can. 2388 § 1). If they are religious, they are to be considered lawfully dismissed (can. 646 § 1, n. 3).
Laypersons finally, bound by a previous religious marriage, who presume to contract another, even only civilly, are thereby infamous and, if they persist, must be excommunicated or struck with a personal interdict (can. 2356).