Civil Marriage

CIVIL MARRIAGE. - 1. Notion and different kinds. - Civil marriage is that contracted before the civil official and according to the 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, while in other States it is not. Hence the different kinds of civil marriage.

Civil marriage is obligatory or necessary, if it must be contracted before the civil official and only according to the civil laws, under penalty of not having the civil effects; thus in France, in Germany, in Hungary, in Portugal, in Switzerland, in Holland, in Denmark, in Norway, in Sweden, in Luxembourg, in Brazil, in Argentina and in various Republics of South America. In many of these nations the precedence of civil marriage over religious marriage is also established, with the imposition of penalties (cf. France, Switzerland, Germany, where there is a tempering in art. 20 of the Concordat, etc.).

It is free or optional, if all may contract it either before the minister of worship, according to the civil and ecclesiastical laws, or before the civil official, only according to the civil laws; thus in England and in the United States of North America, with the license of the civil official.

It is subsidiary, if the 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 worship authorized to receive their matrimonial consent; or if, although there is a legitimate minister of worship, he justly refuses to assist at the Marriage by reason of some impediment not dispensed, but extraneous to the civil law; thus in Greece, in Bulgaria, in Austria, in some Republics of South America, in the province of Québec (Canada), and today, after the modifications made, though in an opposite sense in the respective civil Codes, in Spain and in the Republic of San Marino.

2. Historical notes

In Catholic countries a certain kind of civil marriage was first introduced in Holland and in West Frisia in 1580 for reasons of tolerance and as optional for the Reformed, while obligatory for dissenters. These provisions were extended in 1656 to all the Netherlands. For reasons, however, of principle, the institution of civil marriage took place in England, Scotland, Ireland in 1653, almost to exempt the Church from a temporal business. But it was quite another thing from the civil marriage that took hold with the French Revolution, inasmuch as this legislation was by no means a denial of the religious principles that govern Marriage. The premises of civil marriage, as it was later implemented by the French Revolution, find their origins in the 16th century, with the doctrine of the distinction of the contract from the Sacrament of Marriage, proper to the regalists and the Gallicans. If in marriage there 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, still under the impulse of the Enlightenment, of rationalism and of laicism in general, elaborated the theory of civil marriage, which between 1781 and 1792 had its implementation in numerous States until then held to be Catholic or Christian.

A laicization of marriage, even if it is not yet civil marriage, occurs with Joseph II, who acts 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, of 16 Jan. 1783 (Austria) and of 28 Sept. 1784 (Netherlands) which reserve to the State everything concerning the civil contract, and to the 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 which also in France the monarchy had made considerable progress, more covertly, and the Parliaments, more openly, in fact restricting the field of competence of the Church, even if theoretically recognized and respected. The edict of the Parliament of Paris of Nov. 1787, going so far as to regulate the civil status of the marriages of non-Catholics, posed the last practical antecedent of civil marriage. This was sanctioned for the first time in the French Constitution of 3-14 Sept. 1791 (tit. II, art. 7), which was followed by a new and purely civil legislation of marriage with the introduction of divorce.

When the first consul, Napoleon, undertook the codification of the civil laws, the matrimonial laws were the object 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, through the influence of this Code especially, 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 ordering throughout Germany), in 1776 in the whole of Switzerland, in 1888 in Argentina, in 1890 in Brazil, in 1895 in Hungary, in 1897 in S. Domingo and in Peru, etc. The introduction of civil marriage in the countries of the Bolshevik league answers to quite other influences.

3. Civil marriage in Italy

Following the French conquest, the Napoleonic Code, which accepted the institution of civil marriage, was extended to Italy.

The fact, however, was completely ignored, indeed it aroused in all social classes a lively repugnance. Once Napoleon fell, the Italian States substantially returned to the recognition of religious Marriage. The new Codes that came afterwards (Kingdom of the Two Sicilies, 1819; Parma, 1820; Albertine, 1837) brought no changes on the subject. An attempt to introduce civil marriage occurred in Piedmont with art. 7 of the Siccardi law of 9 Apr. 1850 and with the subsequent government bill 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 (tit. V, sec. II, art. 55 ff.).

With the Lateran Pacts (11 Feb. 1929) between the Holy See and Italy, the ordering 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, currently regulated by tit. VI (arts. 79-230) of the new civil Code, but have only transformed it from obligatory to optional, creating two kinds 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 the civil effects recognized also for Marriage celebrated before the ministers of the admitted cults.

4. Catholic doctrine

The Church reproves and condemns civil marriage for the baptized, as an attack on its own rights and on freedom of conscience, as a source of incalculable harm for public morality. In fact 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 a true and simple concubinage.

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

With the same intention of performing a purely civil ceremony, the civil official may also lawfully attend such a Marriage. It is debated whether he may attend it even when he knows that the contracting parties will not afterward celebrate the religious Marriage, or that a impediment of divine or ecclesiastical law stands in the way of this Marriage. The prevailing opinion, however, is that such attendance, not being intrinsically evil, can also be lawful for a proportionately grave cause, which, especially in the second case, would have to be most grave.

For those, on the other hand, who voluntarily contract civil marriage, especially if they are clerics bound to ecclesiastical celibacy, the Church imposes grave penalties.

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

Laypersons finally, bound by a previous religious Marriage, who presume to contract again even only civilly, are for that very reason infamous and, if they persist, must be excommunicated or struck with personal interdict (can. 2356).

Pietro Palazzini