Marriage

MARRIAGE. - Considered historically, it may be defined as the union of man and woman for the purpose of the propagation and education of the human race. And since this purpose could not rightly be achieved if the relations between the two sexes were not subject to a discipline, from the most ancient times, by the very necessity of nature, one witnesses among all peoples the establishment of a juridical-social institution which is precisely marriage.

The word marriage comes from the Latin matris munus or munium, which indicates the relevant part of the woman in the family. Other names: conjugium (Lat. coniugium), which the Catechism of Trent (part 2, ch. 6, 8) explains: « quia mulier cum viro quasi uno iugo astringitur »; connubium (Lat. connubium, from nubere, to veil, from the custom of placing the flammeum on the bride's head); from the same root comes the word nuptials (Lat. nuptiae).

I. MARRIAGE AS A SACRAMENT.

It is the Sacrament that prepares the new candidates for the kingdom of God. It has its origin (marriage in fieri) in the mutual and free consent of two persons of different sex, who unite in perpetuity, for the purpose of procreating and educating offspring for the worship of God. From the mutual consent is born the indissoluble bond between the spouses (marriage in facto esse).

I. MARRIAGE IN DOGMATIC THEOLOGY. SACRAMENTAL NATURE OF MARRIAGE

The Sacraments of the New Law are sensible signs productive of Grace, instituted by Jesus Christ (v. SACRAMENT). Since M. is a natural institution, which has been in force since the origins of humanity, it is necessary to search the sources of Revelation to see whether its positive elevation to the supernatural order as an efficacious sign of Grace is established.

1. Scripture

In the first pages of the Bible the structure of M. is outlined as a natural institution (Gen. 1:27-28; 2:18-24), whose constitutive elements are clearly indicated: a) instituted as an officium naturae resulting from the nature of the sexes and their mutual attraction; God added a positive confirmation to it: "Et creavit Deus hominem ad imaginem suam; ad imaginem Dei creavit illum, masculum et feminam creavit eos. Benedixitque illi Deus et ait: crescite et multiplicamini et replete terram" (ibid., 1:27-28); b) it is characterized by two fundamental qualities: unity and indissolubility: "Quamobrem relinquet homo patrem suum et matrem et adhaerebit uxori suae; et erunt duo in carne una" (ibid., 2:24); c) it is oriented toward the primary end of procreation: "Crescite et multiplicamini et replete terram" (ibid., 1:28; cf. Tob. 8:9) and toward the secondary end of mutual help: "Dixitque quoque Dominus Deus: non est bonum hominem esse solum, faciamus ei adiutorium simile sibi" (Gen. 2:18); d) it carries from its origins something sacred (cf. Prov. 2:17; Tob. 8:9; P. Heinisch, Teologia del Vecchio Testamento, Italian trans., Rome 1950, p. 217), which all peoples recognized in the religious ceremonies with which they surrounded marriage.

From the old to the new Adam the primitive unity and indissolubility were not always observed, not even among the chosen people, which, because of its hard neck, obtained from God himself a temporary dispensation (cf. Heinisch, op. cit., pp. 220-22), nor, even less, among the pagans, who, abandoned to divorce and polygamy, soon descended to that low moral level from which Jesus Christ came to free the world. He in fact first restored M. to its primitive purity, bringing back into force the law of unity (Mt. 19:9; Mk. 10:11; Lk. 16:18) and of indissolubility: "Quod Deus coniunxit, homo non separet" (Mt. 19:6), then elevated it to the dignity of a Sacrament.

This elevation, foreshadowed in Christ's manner of acting (cf. Leo XIII, encyclical Arcanum divinae sapientiae, 10 Feb. 1880), is more clearly suggested by St. Paul, in the celebrated text of Eph. 5:22-28, where, after saying that a man must love his spouse as Christ loved the Church, he adds: "For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh (καὶ ἔσονται οἱ δύο εἰς σάρκα μίαν). This mystery is great, but I speak with reference to Christ and the Church (τὸ μυστήριον τοῦτο μέγα ἐστίν, ἐγὼ δὲ λέγω εἰς Χριστὸν καὶ εἰς τὴν Ἐκκλησίαν). Nevertheless, let each one of you love his wife as himself, and let the wife reverence her husband."

Much discussed is the phrase: "Sacramentum hoc, mysterium magnum est, ego autem dico in Christo et in Ecclesia" (v. 32). Cajetan, G. Estius, B. Giustiniani, above all L. Godefroy (Mariage dans l'Écriture, in DThC, IX, coll. 2066-71), I. Vosté (Commentarius in epist. ad Eph., 2nd ed., Rome 1932, pp. 272-88) and F. Amiot (L'enseignement de st Paul, II, Paris 1938, p. 8) hold that from this text no proof can be deduced in favor of the sacramental nature of M., since the verse must be referred to the mystery of the union of Christ with the Church, of which the primitive institution of M. was a symbol (figure, typus). But, as F. Prat observes (La teologia di s. Paolo, Italian trans., II, Turin 1937, p. 270), this hypothesis does not seem admissible, since it supposes an intolerable tautology: this mystery, that is, the union of Christ with the Church, is great, in relation to Christ and the Church. Therefore the majority of interpreters refer μυστήριον to M. and see in it the foundation of a biblical proof of its sacramental nature. The demonstrative process, very varied, can be reduced to three types of argumentation: a) Ex analogia fidei. - Sacred signs follow the nature of the supernatural economy to which they belong; in the Old Testament they did not have sanctifying efficacy (Gal. 4:9: "infirma et egena elementa"), but were only images and figures futurorum bonorum; in the New Testament, on the contrary, they have received from God, through the merits of the Redeemer, a supernatural virtue, with which they penetrate the conscience, sanctifying it (cf. Heb. 9-10). In Eph. 5:32 there is question of a sacred sign, which had its origin in creation and which endures in the Redemption (St. Paul in fact speaks to Christians and extols the moral greatness of their M. considered as a sacred sign); it must therefore be held that in the Old Testament M. was a symbol ordained by God to signify the future union of Christ with the Church (signum prognosticum, without any sanctifying efficacy), and that in the New Testament it remains, by divine will, as a sign of a reality already accomplished on the Cross, the mystical marriage of Christ with the Church; it is therefore a signum rememorativum, which, belonging to the New Law, possesses the prerogative of sanctifying interiorly (signum demonstrativum Gratiae). Nor should the different orientation that M. acquires in the successive states of the Law and of Grace make an impression. If circumcision had been preserved by Jesus Christ as a sign of his covenant with humanity, there would be reason to think that it would have become a Sacrament in the strict sense. Turned toward the past and no longer toward the future, it would have changed meaning and direction, it would have become capable of effectively producing the Grace of the interior covenant between God and souls, whereas, abandoned as a natural element, it lost all value at the death of Christ. Thus M., which under the Law was the type and figure of the future union of Christ with the Church, changed meaning (because God preserved it in ratione signi) when this union was consummated on Golgotha; from prophetic it became commemorative, from speculative practical, from inert efficacious.

This kind of argumentation, developed with warmth by D. Palmieri (De M. christiano, Rome 1880, pp. 62-70), was accepted by H. Hurter (Theologiae dogmaticae compendium, III, Innsbruck 1900, p. 592), L. Billot (De Sacramentis, II, 7th ed., Rome 1930, pp. 346-50), L. Lercher-F. Dander (Institutiones theologiae dogmaticae, IV, II, Innsbruck 1949, pp. 336-39) and by many others.

b) Ex oneribus. - Christian spouses, in their mutual relations, must be inspired by the relations that prevail between Christ and the Church: on the one hand, respectful submission even to the point of sacrifice (Eph. 5:22-24), on the other, love and devotion even to death (ibid., 25-29). The gravity of these supernatural obligations (cf. Mt. 19:10) implies a corresponding source of graces and divine aids. St. Paul indeed supposes that the souls of Christian spouses are immersed in an atmosphere of heavenly helps, when he exhorts them, with such warmth, to imitate the relations of Christ with the Church, of which their M. is the emblem. This argument is common to all theologians (v., e.g., M. Cordovani, Il Santificatore, 2nd ed., Rome 1946, p. 364 ff.).

c) Ex parallelismo. - Christian M. receives its fisionomia from the mystery of the union of Christ with the Church, of which, according to St. Paul, it is the living image. It is not merely an exemplar that remains outside, on the margins of the mystical nuptials of Christ, but a copy, a reproduction sprouted from that union, impregnated with the same essence, which not only represents but reproduces, active and efficient within itself, the mystery of the relations of Christ with the Church. The two Christian spouses, already members of the Mystical Body, strengthen in their supernatural union the bonds existing between Christ and the Church, of whose mystical marriage they become an offshoot and a prolongation. The living expression and the concrete actualization of the union of Christ with the Church, in order to realize perfectly what it signifies, must necessarily reproduce and incarnate its fundamental lines and distinctive notes, namely unity, indissolubility and holiness.

This proof, touched upon with his usual depth by M.-G. Scheeben (I misteri del cristianesimo, Ital. trans., Brescia 1949, pp. 445-46), has been developed by J. Fischer (Ehe und Jungfräulichheit im Neuen Test., Münster 1919, p. 44), I. B. Colon (Paul [saint], in DThC, XI, coll. 2421-22), C. Adam (La dignità sacramentale del M., Ital. trans., Milan 1935, p. 16), B. Bartmann (Manuale di teologia dogmatica, Ital. trans., III, Alba 1950, p. 350), J. Huby (Les Épîtres de la captivité, 13th ed., Paris 1947, pp. 246-248). These arguments, while not being decisive and not regarded as such by their authors, possess a character of marked probability, which fully accounts for the studied phrase of the Council of Trent: «Paulus innuit» (Denz-U, 969).

2. THE HOLY FATHERS

The Church lived the doctrine of St. Paul before explaining it scientifically. In practice it regarded M. as a negotium sanctum, wrapped in the shadows of the mystery of Christ. St. Ignatius of Antioch, at the beginning of the 2nd century, attests that the M. of the faithful was celebrated with the authorization of the bishop: «Decet ut sponsi et sponsae de sententia episcopi coniugium faciant, ut nuptiae secundum Dominum sint, non secundum cupiditatem. Omnia ad honorem Dei fiant» (Ad Polyc., 5, 1). Tertullian, reporting what was already in use from the 2nd century, precisely enumerates the interventions of the Church in the celebration of M.: «Unde sufficiamus ad enarrandam felicitatem eius Matrimonii, quod Ecclesia conciliat et confirmat oblatio et obsignat benedictio, Angeli renuntiant, Pater rato habet?» (Ad uxorem, 2, 9: PL 1, 1415). From this text it appears that M. was not only solemnized coram Ecclesia («de sententia episcopi, Ecclesia conciliat»), but was already surrounded by the most august rites: the offering of the Eucharistic sacrifice (oblatio) and the priestly blessing (benedictio), of which there is an explicit testimony in the Praedestinatus, 3, 31: «Sacerdotes nuptiarum initia consecrantes et in Dei mysteriis sociantes» (cf. St. Ambrose, Ep. 19, 7: PL 16, 98). The original grafting of the nuptiarum sollemnia into the actio liturgica was demanded by the persuasion which the Church subsequently explicitly manifested in its Sacramentaries and Euchologia, in which it placed M. among the true and proper Sacraments, and formulated prayers that expressly attribute to Christian marriage the efficacy of Grace (cf. D. Palmieri, De Matrimonio christiano, Rome 1880, pp. 54-55; L. Duchesne, Origines du culte chrétien, 2nd ed., Paris 1898, pp. 413-19; A. Villien, Les Sacraments. Histoire et liturgie, 2nd ed., ibid. 1931, pp. 335-402).

The same idea is developed in the archaeological monuments. There the Christian spouses are commonly represented in the act of extending their hands to each other; between them is placed as a sign of the mutual union (always conceived within the sphere of Grace) either the hand of the Lord surrounded by Constantinian monograms, sometimes followed by an inscription (e.g., in the sarcophagus of Tolentino: «Quos paribus meritis iunxit M. dulci Omnipotens Dominus»), or the gemmed column symbol of the Church, or Jesus standing in the midst of the spouses with the inscription: Θεοῦ Χάρις, or Christ, regarded as the «Pronubus» of the nuptials of his faithful, e.g., in the Albani fragment, according to the explanation of St. Paulinus of Nola: «Absit ab his thalamis vani lascivia vulgi Iuno, Cupido, Venus, nomina luxuriae. Sancta sacerdotis veneranda pignora pacto iunguntur; coeunt pax, pudor et pietas... Tali lege suis nubentibus adstat Iesus Pronubus» (Carm., XXV, p-12, 151: PL 51, 633-636; cf. O. Marucchi, La santità del M. confermata dagli antichi monumenti cristiani, Rome 1902; G. Wilpert, La fede della Chiesa nascente secondo i monumenti dell'arte funeraria antica, Vatican City 1928, pp. 249-55).

Parallel to the liturgical and archaeological tradition, of a predominantly practical nature, is the theoretical rethinking of the evangelical and Pauline motifs concerning M. From the 3rd to the 5th century three concepts are constantly repeated: a) the Christian M. is the symbol of the union of Christ with the Church (Clement of Alexandria, Strom., 3, 12: PG 8, 1186; Origen, Fragm. in Io., 3, 29: CB, IV, 520; id., Hom. II in Num.: PG 12, 643; Chrysostom, Hom. 40 in Eph.: ibid., 62, 140; St. Hilary of Poitiers, Tractatus de mysteriis, 3: CSEL, 65, 4-5; St. Ambrose, Ep., 76: PL 16, 399; Ambrosiaster, In Eph., 5, 31: ibid., 17, 399); b) to which is connected the infusion of Grace: «Si ratum est apud Deum Matrimonium... habens iam ex parte divinae Gratiae patrocinium» (Tertullian, Ad uxorem, 2, 7: PL 1, 1229); «Deus quidem est, qui duo in unum compegit... et quoniam coniunctionis auctor est Deus, propterea iis inest Gratia, quia Deo coniuncti sunt; quod non ignorans Paulus connubium. Verbo Dei consentaneum gratiam esse pronuntiat» (Origen, In Mt., 14, 16: PG 13, 1229; cf. St. Epiphanius, Haeres, 51, 30: ibid., 41, 941; St. Innocent, Ep., 36: PL 20, 602; St. Cyril of Alexandria, In Io., 2, 1: PG 73, 224); c) whose elevation to the order of Grace took place at Cana of Galilee, where the Redeemer perfected the work of the Creator: «In Cana Galileae externae sunt celebratae nuptiae... ut quod deerat emendaret ac iucundissimi vini suavitate mulceret et Gratia» (St. Epiphanius, Haeres, 51, 30: PG 41, 941); «Cum nuptiae celebrantur... adest quidam Mater Salvatoris, sed et ipse cum discipulis suis invitatus venit... ut generationis humanae principium sanctificaree» (St. Cyril of Alexandria, In Io., 2, 1: PG 73, 224); «Vadit ad nuptias Dei Filius ut, quas dudum potestate constituit, tunc praesentiae suae benedictione sanctificee» (St. Maximus of Turin, Hom., 23: PL 57, 274; cf. Theodoret of Cyrrhus, Haeret. fabularum compendium, 5, 25: PG 83, 537; St. John Damascene, De fide orthod., 4, 24: ibid., 94, 1209).

St. Augustine, a fervent defender of the lawfulness of M. against the Manichaeans and Jovinian, was concerned to bring to light the tripartitum bonum: fides, proles, Sacramentum (De nuptiis et concupiscentia, 11: PL 44, 421; De bono coniugali, 24, 32: ibid., 40, 394). Fixing his attention on the last point of the trilogy (Sacramentum), St. Augustine develops at length the Pauline symbolism (cf. B. Alves Pereira, La doctrine du Mariage selon 1st Augustin, Paris 1930, pp. 184-223) and constantly concludes that the res Sacramenti is the indissolubility of M., which imitates in a perfect manner the inseparability of the mystical nuptials of Christ with the Church: «Huius procul dubio Sacramenti res est ut mas et foemina connubio copulati, quamdiu vivunt, inseparabiliter perseverent» (De nuptiis et concupiscentia, 1, 10: PL 44, 420); «Bonum nuptiarum, quod ad populum Dei pertains to the people of God, is also in the holiness of the Sacrament, through which it is even unlawful for one who departs by divorce to marry another" (De bono coniugali, 24, 31: ibid., 40, 394). The bond of Christian spouses (res Sacramenti) is so profound that it can be compared to the indelible character of Baptism and of Orders (ibid.). In this perspective Grace is seen in M. only in outline, as the ultimate region (to which perhaps the word sanctitas alludes) of the bond of the spouses, the perfect image of the union of Christ with the Church. But St. Augustine must not be isolated from the other Fathers, whose teaching he accepted, and even less from the African writers, especially from Tertullian, whose doctrinal tradition he continued.

3. Scholastics

The teaching of the Fathers, in its particular Augustinian formulation, became common. Transmitted to the Middle Ages in the rapid synthesis of St. Isidore of Seville (De ecclesiasticis officiis, 2, 20: PL 83, 812), it re-emerged timidly in the 9th-11th centuries, to establish itself vigorously, even amid the modifications and expansions it underwent, through the theological and canonical works of the 12th century: Hugh of Amiens (Contra haereticos, 3, 4: PL 192, 1289), Abelard (Epitome theologiae, 31: ibid. 178, 1747), Hugh of St. Victor (De Sacramentis: ibid. 176, 481-82, 494: with a singular distinction between Sacramentum maius and minus), Honorius of Autun (Elucidarium, 2, 16: ibid. 172, 1147), Peter Lombard (IV Sent., d. 26, c. 6), in whose work an entire systematic treatment de Matrimonio is already sketched out, which, perfected by St. Bonaventure and by St. Thomas, became the classical doctrine of Catholic theology.

Once the speculation on the intimate meaning of the Sacrament of the New Law had matured from the middle of the 12th century, implying the inseparable concept of sign and cause (id. officiis quod significat), it was applied to M. Thus the occasion arose to affirm, in scientific form, what the tradition of the Fathers, drawn from biblical sources, had taught in a simple and popular manner. The application did not occur without conflicts: in the 12th century Abelard, while recognizing in M. the dignity of magnae rei Sacramentum, held it to be a Sacrament that was not spiritual and therefore "non alicuius meriti ad salutem, sed propter inconvenientiam ad salutem concessum" (Epitome theologiae, 28: PL 178, 1738); whereas Hugh of St. Victor considered it a true source of Grace (De Sacramentis, II, 2, C. 8: ibid. 186, 496).

This doctrinal oscillation continued for a century (from 1150 to 1250) among canonists and theologians and was definitively eliminated by the clear teaching of St. Thomas (IV Sent., d. 26, q. 2, a. 3), whose efficacy was not diminished by the tenacious resistance of Olivi and Durandus, since, received in the Decretum pro Armeniis (Denz-U, 695 and 702), it became the authentic doctrine of the Church.

For centuries already the Roman pontiffs had numbered M. among the true and proper Sacraments of the New Law: in the Second Lateran Council (1139) and the Veronese under Lucius III (1184), in the Epist. ad Umbertum (1198) and in the Professio fidei Waldensibus praescripta (1208) of Innocent III, in the Professio fidei M. Palaeologo proposita (1274) of Gregory X, in the condemnation of the Fraticelli (1318) by John XXII (Denz-U, 367, 402, 406, 424, 465, 490).

4. Protestant errors

It is against this centuries-old and solemn teaching that the bold innovations of Luther clashed: "Never does one read that anyone who has taken a wife has received the Grace of God. Indeed not even the symbol was instituted by God in M... Let M. therefore be understood as an allegory of the union of Christ and the Church, but not as a Sacrament instituted by God; it is a Sacrament introduced into the Church by men through ignorance of things and words" (De captivitate Babylonica, 7, in M. Luther, Scritti politici, edited by G. Panzieri Saija, Turin 1949, pp. 314, 317). For the "reformer" M. is an absolute necessity of life, like drinking and eating, regulated therefore by merely human laws, and thus to be regarded as an exclusively civil affair: ein weltlich Ding (cf. A. Kawerau, Die Reformation und die Ehe, Halle 1892; L. Cristiani, Du lutheranisme au protestantisme, Paris 1911, pp. 181-82; J. Piquier, Luther, in DThC, IX, coll. 1276-82). These ideas were shared by all the Protestants, particularly by Calvin
(cf. Institutio christianae religionis, 4, 19), who in the commentary on the Letter to the Ephesians stigmatized the
Catholic teaching as crassae ignorantiae hallucinatio (Opera Calvini,
in Corpus reformatorum, LXXIX, 227).

5. Council of Trent

Against this distortion
of the truth the Catholic theologians of the sixteenth century fought with ardor and erudition (cf. V. Zollini, De Matrimonii Sacramento novatorum errores, catholicorum
explanationes, Rome 1943; unpublished thesis of the Athenaeum of
Propaganda Fide) and the Council of Trent issued its solemn definitions,
sess. XXIV (11 Nov. 1563), which
vigorously affirmed the sacramental nature of
M., treating moreover of its properties (Denz-U,
969-82). The limpid and precise formulas of Trent,
a happy epilogue of Christian tradition, which brought so much
vexation to the regalists and the Febronians, ardent
"secularizers" of M., were taken up and illustrated,
according to the needs of the times, by Pius VI against
Scipione Ricci (Denz-U, 1556-60), by Pius IX, in the
Syllabus (ibid., 1765-76); by Leo XIII in the encyclical
Arcanum divinae sapientiae, 10 Feb. 1880 (ed. F.
Hürt, Rome 1942), of which the concision of the wording and the robustness of the formulas are famous; by Pius X
in the decree Lamentabili, against the modernists (Denz-U,
2251); by Pius XI in the classic encyclical Casti connubii,
31 Dec. 1930 (ed. F. Hürt, Rome 1942).

Ehe in den ersten drei Jahrhunderten, Berlino 1927; L. Godefroy,
Mariage dans les Pères, in DThC, IX, coll. 2077-2123; P. R. Pivano, De essentia Matrim. ad mentem Patrum, in Rass. di morale
e diritto, 4 (1938), pp. 216-36; 5 (1935), pp. 132-55; A. Reuter,
S. Augustini doctrina de bonis Matrim., Roma 1942; N. Lado-
mérzak, St Augustin docteur du Mariage chrétien, ivi 1942. 3) Scolastici: F. Falk, Die Ehe am Ausgang des Mittelalters, Magonza
1908; I. de Guibert, Le texte de Guillaume de Paris sur l'essence
du Sacrement du Mariage, in Recherches de science religieuse,
5 (1914), pp. 422-27; G. Le Bras, La doctrine du Mariage chez les
théologiens et les canonistes depuis l'an mille, in DThC, IX, coll. 2123-
2313 (conspicuo per la vastità e la profondità dell'indagine); L.
Miesery, Le Mariage, in st Thomas d'Aquin, Somme théologique
(ed. Revue des jeunes), 2 voll., Parigi 1930, nell'appendice di
ambedue i volumi; P. Abellan, El fin y la significación sacramental
del Matrimonio desde s. Anselmo asta Guillermo de Auxerre,
Granata 1939; V. Fagiolo, Il Sacramento del M. in s. Bonaventura,
Roma 1946 (tesi inedita dell'Ateneo Lateranense). 4) Protestanti: E. Safeld, Luthers Lehre von der Ehe, Lipsia 1882; S. Baranovski, Luthers Lehre von der Ehe, Posen 1913; J. Fourey,
Le protestantisme français et le Mariage, Parigi 1925; F. Wendel,
Le Mariage à Strasbourg à l'époque de la Réforme (1560-1621),
Strasburgo 1928; id., Calvin. Vie et doctrine, Parigi 1950; J. Paquier, Luther, in DThC, IX, coll. 1276-83. 5) Trattati classici: P. Ledesma, De magno Matrim. Sacramento, Venezia 1595;
R. Bellarmino, De Matrim., ivi 1599; Th. Sanchez, De s. Ma-trim. Sacramento, Anversa 1617; B. Pontius, De Sacramento Ma-trim., Salamanca 1624; I. Perrone, De Matrim. christiano, 3 voll.,
Roma 1858; M. P. Rosset, De Sacramento Matrim., 6 voll.,
Parigi 1895-96. 6) Studi recenti: I. Bilz, Die Ehe im Lichte
der katholischen Glaubenslehre, 2e ed., Friburgo in Br. 1920;
A. De Smet, De sponsalibus et Matrim., 4e ed., Bruges 1927;
I. Dermine, La doctrine du Mariage chrétien, 2e ed., Lovanio
1928; G. Kisslstein, De Matrim. sacramentalitate, in Rev. eclé-
siat. de Liège, 24 (1932-33), pp. 246-49; A. Koch, Symbolismus
der Ehe, in Stimmen der Zeit, 124 (1932-33), pp. 336-38; P. Doncoeur, La sainteté du Mariage chrétien, in Études, 236 (1938),
pp. 38-55; P. Carré, Compagnon d'éternité, Parigi 1939; A. Christian, Le Sacrement est grand, ivi 1939; C. Boyer, Synopsis
prædectorium de Matrim., Roma 1942; B. Lavaud, Mariage. Nature humaine et Grâce divine, Friburgo 1942; A. Piolanti, De
Sacramentis, 2e ed., Roma 1947, pp. 432-51; E. Boissard, Questions théologiques sur le Mariage, Parigi 1948; F. Taymans
d'Experson, La Ste Trinité et les Sacrements, Bruxelles-Parigi
1949, pp. 93-107; A. Piolanti, Dignità del M. cristiano, in Tabor,
4 (1949), pp. 202-206; P. Colli, La pericopa paolina ad Eph. 3,
37, in the interpretation of the Holy Fathers and of the Council of Trent, Parma 1931.
Antonio Piolanti

II. NATURE OF THE SACRAMENT OF MARRIAGE

1. Contract and Sacrament

Regarding the nature of this Sacrament, the fundamental question, on which all the others logically depend, concerns the relationship in which the contract and the Sacrament stand: namely, whether the marriage of Christians, before being a Sacrament, must be considered as a contract, in such a way that two successive elements can be distinguished in it, the first of which must be considered as the necessary foundation of the second; or whether instead the contract remains totally permeated by the Sacrament.

The conception that separates the contract from the Sacrament entered doctrine late, and had proponents down to the 19th century, for reasons not always of a theological order. Some theologians contributed to it in good faith, who certainly did not foresee the disastrous fruits that would derive from it.

The first was Melchior Cano (Opera theologica, II, Rome 1900, ch. 8), according to whom the marriage contract is nothing but the matter of the Sacrament, to which the blessing of the priest as minister is added as the sacramental form. This led directly to holding that a marriage bond that was not a Sacrament was conceivable: and he himself asserted this without ambiguity. The Spanish theologian had many followers down to the threshold of the 19th century (e.g., Sylvius, Estius, Tournely, and Benedict XIV himself, before he became pope).

The theory of Vásquez and of the Salmanticenses led to the same conclusion, according to which the two elements are certainly linked to each other, but the contract retains its natural value in the case that the betrothed intended to conclude only a contract: it would therefore remain in their power to separate the contract from the Sacrament.

Some modern theologians and canonists, Gallican and Josephinist (e.g., M. A. de Dominis, Launoy, Nuyts), separated the contract from the Sacrament even more. They held that between these two elements there existed only extrinsic relations, inasmuch as the blessing of the priest would be added externally to the contract. Through the work of these theologians the distinction descended from the theological terrain to the political one, lending a valid argument to the claims of the State in matrimonial matters. In this way the modern civil marriage was favored.

According to Catholic teaching, however, in Christian marriage the contract and the Sacrament, while being logically distinct, are really identified, since "Christ the Lord raised to the dignity of a Sacrament the marriage contract itself between the baptized" (CIC, can. 1012 § 1). The contract, therefore, from the plane of officium naturae is raised to the order of Grace, in such a way that this sublimation of value permeates the contract integrally. A vivisection is not conceivable, whereby the contract remains in the zone of nature, and the Sacrament accedes, as it were, to perfect it. Therefore the CIC declares that "between the baptized there cannot exist a valid contract that is not at the same time a Sacrament" (can. 1012 § 2).

Such doctrine, while not being proposed in the official teaching of the Church tamquam divinitus revelata, is nonetheless certain; indeed it has been judged proxima fidei by the S. R. Rota (AAS, 11 [1919], p. 933). Moreover the Fathers ignored the distinction, as did the theologians before the 16th century. Furthermore Eugene IV in the Decretum pro Armenis implicitly affirmed that the marriage contract and the Sacrament in the faithful are not two distinct things (Denz-U, 702). The same concept is presupposed by the Council of Trent, which attributed sacramental value to clandestine marriages celebrated before the decree Tametsi (Denz-U, 990); and it is validly defended by Pius IX in a brief to the King of Sardinia (1852) and furthermore in the allocation Acerbissimum vobiscum of 27 Sept. 1852 (Denz-U, 1640) and in the condemnation of the contrary errors contained in propositions 66 and 73 of the Syllabus (Denz-U, 1766, 1773); by Leo XIII in the encyclical Arcanum (10 Feb. 1880: Denz-U, n. 1854) and by Pius XI in the encyclical Casti connubii (31 Dec. 1930: ibid., n. 2237).

2. Matter and form

Since the Sacrament is nothing other than the natural contract elevated to the order of Grace, it follows that the constitutive elements of the Sacrament must be identified with the constitutive elements of the contract itself. The sensible sign of the Sacrament of marriage is therefore constituted by the mutual consent of the two spouses. The words that express this consent are considered as matter, inasmuch as they contain the donation of one party to the other, and as form, inasmuch as they imply the acceptance of this donation.

However, the formality of determined words is not required, because Christ did not require as the sensible sign of this Sacrament anything other than what is necessary to constitute the human contract: any sign whatsoever, by which the internal consent is expressed, is therefore sufficient.

Such doctrine, formulated by Bellarmine, by Suárez, by Sánchez, is commonly held by almost all modern theologians, and recurs in the constitution Paucis itself, of 19 March 1758, of Benedict XIV. The words of the Council of Florence cannot be opposed to it, which establishes a threefold element for the constitution of the Sacrament "rebus tamquam materia, verbis tamquam forma et persona ministri," on the basis of which some theologians maintained that the matter is the bodies, and the form is the words with which the contracting parties mutually transfer to each other the ius in corpus. In marriage in fact, as in the Sacrament of Penance, there does not exist a matter properly so called. The bodies of the contracting parties do not constitute the contract, but are rather its object (materia remota circa quam). The contract is formally concluded by the fact that the parties externally express their consent. In this consists the sensible sign of the Sacrament of marriage (cf. St. Thomas, IV Sent., d. 26, q. 1, a. 1, sol. 2). In a second moment there are distinguished, by analogy with the other Sacraments, a determinable element and a determining one, that is a mutual donation and a mutual acceptance of the right over the body, respectively called matter and form.

The theologians who consider the priest as the minister of the Sacrament of marriage hold that the contract is the matter, and the words of the blessing are the form that seals and confirms the contract. It has already been noted how such an opinion starts from an untenable principle. Its supporters bring as an argument the words of the Ritual "Ego coniungo vos," but it must be observed that these do not exist in the more ancient Rituals, and that the Council of Trent left their use optional and permitted other somewhat different formulas (Denz-U, 990). This would not have been established, if the Church had recognized in these words the sacramental form of marriage.

3. Ministers

The ministers of the Sacrament of marriage are the contracting parties themselves: given the inseparability of the Sacrament from the contract, whoever makes the contract also makes the Sacrament. The priest celebrates the rite, not the marriage; his assistance is only that of a qualified witness, who receives the consent of the spouses in the name of the Church.

The Fathers emphasized the blessing of the Church and required it, but nothing suggests that in the blessing they saw the necessary form: in fact they never denied the validity of clandestine marriages. Scholasticism had an identical point of view. St. Thomas considered the blessing of the priest as a sacramental. Marriage is accomplished by mutual consent (Sum. Theol., Suppl., q. 45, a. 5), and this conception among the scholastics is all the more noteworthy, inasmuch as they placed great emphasis on the action of the priest in the Sacrament.

The Council of Trent presupposed the same doctrine, since, although it imposed the contracting of marriage before the parish priest and two witnesses, it nevertheless did not contest the validity of clandestine marriages (Denz-U, 990). Pius X, in the constitution Provida (18 Jan. 1906) on marriage, required the Tridentine form, but in the case of a prolonged absence of the priest, declared that marriage can be contracted validly and licitly before two lay witnesses (Denz-U, 2069). The Code established: "Matrimonium facit partium consensus in personae iure habiles legitime manifestatus" (can. 1081). Consequently the contrary opinion of Melchior Cano, of the Gallicans and Josephinists, which once had many adherents, is today totally abandoned.

4. Subject

The subject capable of receiving marriage "validly" is only the baptized person who has no diriment impediments.

To receive it "licitly and fruitfully," the absence of impedient impediments and the state of grace are required. A marriage contracted with impedient impediments is valid, but grace is not conferred, by reason of the obstacle placed by grave sin at the moment of the conclusion of the contract. As for the state of grace, it is required because marriage is a sacrament of the living; such a state can be procured either by perfect contrition or by confession. Although the state of grace obtained through the sacrament of Penance is prescribed only for the Eucharist, the CIC nevertheless orders that the parish priest exhort the betrothed to confess their sins and to receive Holy Communion piously before the celebration of the marriage (can. 1033).

There can be no valid marriage between baptized persons that is not at the same time also a sacrament: this holds true even when the contracting parties are not aware of it, or wish to contract a valid marriage with the exclusion of the sacrament, or were of the belief that marriage is not a sacrament. Therefore not only Catholics receive the sacrament, but also heretics, schismatics and apostates. On this there is no controversy. Debated, on the other hand, is the question whether the sacrament exists when two unbelieving spouses are converted and baptized. According to some, an express or tacit renewal of consent is required; according to others, such a marriage can never be raised to the dignity of a sacrament. Today the opinion already defended by Bellarmine (De Matrim. Sacramento, ch. 5) prevails, according to which such a marriage becomes a sacrament in the very act in which the two spouses receive Baptism. Bellarmine has been followed by Sánchez, Perrone, Pesch, Billot, Cappello, De Smet, Wernz-Vidal. This opinion has a biblical foundation, since the words of St. Paul to the Ephesians (Eph. 5:32) were addressed to Christians, many of whom had certainly married in unbelief; it is also founded theologically, if one considers that the efficient cause of the sacramental bond in marriage between baptized persons is the natural consent of the faithful, and that therefore the sacramental character of the marriage of unbelievers is opposed only by the lack of Baptism; when this supervenes, the permanent bond is raised to signify the union of Christ with the Church, and nothing is lacking to such a marriage for the general principle to apply to it: "Matrimonium inter christianos est Sacramentum." A new consent, necessary for the sacrament to exist, is to be excluded, because Baptism does not dissolve but leaves in force the previous marriage; there is therefore a single marriage always persevering, in which the original consent always retains its value.

A different conclusion prevails in the case of a marriage contracted between a baptized person and an unbeliever. There are those who hold that such a marriage is a sacrament for the faithful party (Sasse, Rosset, Pesch). Others affirm this when the dispensation from the impediment of disparity of cult has intervened. But the most common opinion does not admit this splitting: if the sacrament does not exist, as is most certain, for the unbelieving spouse, then, by reason of the inseparability of the contract and the sacrament, the sacrament cannot exist even for the faithful spouse (Wernz-Vidal, Cappello, Noldin, Gasparri).

5. Effects

The effects of this sacrament consist in the formation of the sacramental bond, in the increase of sanctifying grace, and in the right to all actual graces necessary for living the married state in a Christian manner.

The conjugal bond constitutes the res et Sacramentum; it serves as the dispositive cause for the infusion of grace, and it perseveres until it is legitimately dissolved. The conferral of sanctifying grace is a truth of faith defined by the Council of Trent in sess. VII, can. 6, 8 (Denz-U, 849, 851) and XXIV, can. 1 (Denz-U, 791). It is a matter of second grace, because marriage, symbolizing the union of Christ with the Church, is a sacrament of the living. When it is received knowingly in a state of mortal sin, it is valid if all the other conditions are present, but illicit. Grace in that case revives afterwards, when the obstacle is removed. If, on the other hand, it is received in a state of sin unknowingly, it produces "per accidens" the first justification through attrition.

The right to special actual graces constitutes one of the aspects of sacramental grace, proper to this sacrament, through which the spouses are enabled to attain the high purposes of married life. Already St. Paul alludes to the negative effect of the moderation of concupiscence: "To avoid immorality, let each man have his own wife, and each woman have her own husband" (1 Cor. 7:2; cf. 1 Thess. 4:4-5). The Council of Trent further recalls, among the effects wrought by the sacrament, the perfecting of natural love and the consolidation of the indissoluble unity, by which the spouses are sanctified, just as the bond that unites Christ with the Church is a bond of charity and holiness (Denz-U, 969). Casti connubii speaks of living marriage "whose efficacious power, although it does not imprint a character, is nevertheless permanent." In this regard the encyclical comments on a text of St. Robert Bellarmine: "The sacrament of marriage is similar to the Eucharist, which is a sacrament not only while it is being made, but also while it endures; because, as long as the spouses live, their union is always the sacrament of Christ and the Church" (De Matr., II, 6). Therefore all acts that translate into practice, that continue and ratify in particulars the mutual gift, that is, everything that among the spouses is a manifestation of sanctified love, is a source of grace. In this way the state of marriage can be eminently sanctifying.

6. Powers of the Church

The marriage of the faithful is always a sacrament, and the power to administer the sacraments was conferred exclusively by Jesus Christ on his Church; to it therefore belongs the proper, exclusive, independent right to determine what is necessary for the valid and licit celebration of Christian marriage (can. 1038).

In particular, there fall within the specific powers of the Church: a) to interpret and declare in an authentic and exclusive form (not to derogate from and dispense with without an express mandate of God) the divine law, by virtue of its power of magisterium (can. 1322); b) to determine the diriment and impedient impediments, and to prescribe the conditions required for the licit and valid celebration of marriage; c) to proceed and to pass sentence on all matrimonial causes concerning the existence, validity, effects and dissolution of betrothals and of marriage itself, and concerning conjugal separation; d) to compel delinquent spouses, even with penalties, to observe its laws and its sentences. These powers of the Church extend indirectly also over the unbeliever, whenever the latter wishes to contract marriage with a baptized person; hence the law that directly binds one of the contracting parties also indirectly binds the other. In such a case, the Baptism of one party suffices to determine the competence of the Church in the matter.

From this it follows that the State has no power whatsoever over the lawfulness or validity of the marriage of the faithful, for whom the Sacrament is not distinguished from the contract. It can only: a) lay down certain conditions, civilly binding, for those who wish to contract marriage, provided that this is required by the public good and does not conflict with divine and canon law; b) legislate on the temporal effects, which are separable from the substance of marriage. In this its competence is proper and exclusive.

The exercise of this power of the Church is already found in St. Paul (I Cor. 5); from the earliest centuries the Church asserted these rights of hers, independent of the civil power, so that during the Middle Ages canon law became prevalent, if not exclusive. There was no lack of resistance on the part of princes, and of errors on the part of canonists and regalist theologians. The Protestants, considering marriage no longer as a Sacrament but as a simple contract, made it depend exclusively on the civil jurisdiction. But there was no lack of theologians (Sánchez, Soto, Billuart) who, while holding the contract inseparable from the Sacrament for the faithful, granted to both authorities their own proper right over marriage, unless the Church wished to reserve to herself, as she did reserve, the right to establish exclusivity. But even in this case the State was granted the right to establish prohibitive impediments, reserving the diriment ones to the Church.

La dottrina cattolica emerge da numerose ed esplicite dichiarazioni dell'insegnamento ufficiale della Chiesa: Concilio Tridentino (sess. XXIV, cann. 3, 4, 9, 12); Pio VI, Errores Synodi pistorienis, propp. 58-60 (Denz-U, 1558-60); Breve ad archiep. Trevirensem, 1782; Ep. ad episc. Motulensem, 1788; Pio IX, Syllabus, propp. 68-70 (Denz-U, 1768-70); Leone XIII, encicl. Arcanum; Pio XI, encicl. Casti connubii; CIC, cann. 1016, 1038, 1040, 1960-61.

BIBLI: Intorno alle questioni che riguardano la materia, la forma, il ministro, il soggetto e gli effetti di questo Sacramento: oltre alle opere citate nella bibl. antecedente: W. Sulerzski, Wer ist Minister bei dem Suhr, der Ehe?, Posen 1881; J. B. Sasse, De Sacramenti Ecclesiae, II, Friburgo in Br. 1898, p. 383 sgg.; C. Pesch, Praelectiones dogmaticae, VII, ivi 1920, n. 758 sgg.; L. Billot, De Ecclesiae Sacramentis, II, 7ª ed., Roma 1920, p. 361 sgg.; C. Pumar Cornes, De forma Sacramenti Matrimonii, Compostella 1930; anon., Quelle est la matière, la forme et le ministre du Sacrement du Mariage?, in L'Ami du clergé, 1931, p. 787 sgg.; F. Cappello, Tractatus canonico-moralis de Sacramenti, V, 6ª ed., Torino 1930, p. 27 sgg. Intorno si rapportò tra contratto e Sacramento: A. Roskovany, Matrimonium in

Ecclesia catholica, II, Augusta-Agria 1887, p. 467 sgg.; M. Covillard, Le Mariage considéré comme contrat civil dans l'histoire du droit français, Parigi 1889, p. 38 sgg.; E. Glasson, Le mariage de Gaston d'Orléans avec Marguerite de Lorraine, ivi 1896; J. Basdevant, Des rapports de l'Église et de l'État dans la législation du Concile de Trente au Code civil, ivi 1900, pp. 26-28, 106-22; G. Caviglioli, La precedenza del m. civile durante il Regno Italico, Novara 1914; G. Serviez, De quelques recherches concernant le Mariage contrat-Sacrement et plus particulièrement de la doctrine augustinienne des biens du Mariage, Parigi 1928; F. Gasparri, Tractatus canonicus de Matrimonio, I, 2ᵉ ed., Roma 1932, pp. 31-34. Circa il potere della Chiesa sul M. dei fedeli; J. Perrone, De Matrimonio christiano, II, Roma 1858, pp. 3-132; F. Huszar, De potestate Ecclesiae circa Matrimonium, ivi 1900; E. Grzymala, Ratio sacra in Matrimonio canonico et civili, Roma 1933; G. Stocchiero, Il M. in Italia, 5ᵉ ed., Vicenza 1946, p. 42 sgg.

Guglielmo Zannoni

III. PURPOSES OF MARRIAGE

1. The data of Revelation

It has already been mentioned how God himself establishes the natural foundations of marriage, promulgating its laws and determining its purposes in procreation and mutual help (Gen. 1:26-31; 2:7-25).

These concepts are recalled elsewhere in the books of the Old and New Testaments. St. Paul's doctrine on this point has a particular importance, since it indicates another purpose for which God ordained the institution of marriage after original sin, namely the remedy for concupiscence. In the first Epistle to the Corinthians, speaking of widows and the unmarried, he says: "It is good for them if they remain as I am; but if they cannot practice continence, let them marry; for it is better to marry than to burn" (7:8-9); furthermore: "It is good for a man not to touch a woman; yet, to avoid fornication, let each man have his own wife and each woman her own husband" (ibid. 7:1-2). And after teaching that it is good to abstain from marital relations in order to devote oneself to prayer, he adds: "Then come together again, so that Satan may not tempt you because of your incontinence" (ibid. 7:5). These revealed data, sober and profound, were later developed by Catholic tradition into systematic doctrine.

2. Essential ends of marriage in the doctrine of the Church

Starting from the lines traced by Sacred Scripture, Catholic teaching has always been in agreement in assigning to marriage three essential ends: the generation and education of offspring, mutual help, and the tempering of concupiscence. The generation and education of offspring is a purpose which, on the basis of the sacred text, is first brought into relief by Catholic tradition. The thought of the Fathers is summarized by St. Augustine: "That marriage is contracted for the sake of offspring, the Apostle thus bears witness: I will that the younger women marry (1 Tim. 5:14). And as if someone were to say to him: And why?, he immediately adds: To bear children and be mothers of families" (De bono coniug., ch. 24, n. 32; cf. encyclical Casti Connubii, Denz-U, n. 2226 ff.).

In marriage, man and woman, beyond the continuation of the race, seek and find the companion of life. Marriage, in fact, through the intimate, total, definitive union of the two spouses, offers to each of them the complement for which they naturally aspire: a precious material and spiritual support, which constitutes for the generality of men the providential means of their personal and social perfection, of their moral progress and of their sanctification. There is also talk of the "completion" or "perfecting" of the spouses. These terms well express the idea of a void filled, of fullness, of equilibrium of the whole being aroused by mutual love. Hence in the spouses there arise joy, dedication to the beloved person and to the home, courage in the hour of trial, and the harmonious and complete development of their own personality.

In addition to the mutuum adiutorium, in marriage there is added, in the present order, the remedium concupiscentiae. The concupiscence of the flesh, in fact, is not only a providential impulse toward the satisfaction of a need of nature, but, after original sin, it is often a dangerous deviation of the natural impulse, inasmuch as it rises up against the governance of reason and drives man toward the disordered use of sensual pleasure; theology has regarded it as a vulnus naturae: the legitimate remedy for wounded nature is marriage, which, while tempering the ardor of passion, checks concupiscence, ordering it to the noble end of procreation.

3. Relationship among the ends of marriage

Among the ends of marriage there is no opposition, but harmony. The spouses, in fact, in seeking mutual completion, contribute to the well-being of society; on the other hand, the procreation and education of children benefits not only the State and the Church, but also comes to cement conjugal love with new bonds.

These ends, however, are not on the same plane and equal among themselves: there exists a hierarchical relationship, whereby one is higher and more important than the other. "The primary end of marriage is the procreation and education of offspring; the secondary end, mutual help and the remedy of concupiscence" (CIC, can. 1013 § 1). This statement is a synthesis of the traditional doctrine of the Church. In fact, following the Fathers, the theologians, moralists and canonists prior to the CIC moved constantly within this acquired doctrinal schema. In particular, no one held that the primary end of marriage is other than the procreation and education of offspring: only Hugh of St. Victor substituted for it the union of love between man and woman, from which there derives, as a consequence, the generative function of the spouses (cf. M. Abellan, El fin y la significación sacramental del matrimonio, desde s. Anselmo hasta Guillermo de Auxerre, Granada 1939). St. Thomas called it the "most essential end," without which marriage can neither be understood nor defined: "Proles est essentialissimum in Matrimonio; et secundo fides, et tertio Sacramentum" (Sum. Theol., Suppl., q. 49, a. 3). Thus the Church also did after the CIC. The Casti connubii of Pius XI (Dec. 31, 1930) reaffirmed "what is also effectively expressed in the Code of canon law," referring to can. 1013 § 1. Moreover, it is nature that leads to this hierarchy of relationships: only offspring, in fact, can be considered as the natural term to which the very difference of temperaments has been ordained, corresponding to the different functions of man and woman within the sphere of the family. The matter is still more evident if one considers the remedy of concupiscence. To wish to separate this end from procreation means to invert the order established by God, according to which the pleasure conjoined with the use of marriage is by its nature a providential means to facilitate for the spouses the task of propagating the human race, and almost to counterbalance its grave responsibilities.

It must further be emphasized that the three ends are subordinate, but distinct and absolutely irreducible. The secondary end, that is, does not exhaust itself in being simply a means, an instrument, even of the principal end, but preserves its character as an end, although subordinate to another which is principal; that is, it is not something accessory and accidental that is added to the essence of marriage, but belongs to the substance of the institution and of the Sacrament, and therefore is pursuable for itself. This explains how in certain periods, in which the primary end is absolutely and temporarily unrealizable, marriage and its use remain reasonable and lawful, since there continues to exist an end sufficient to give them a reason for being. The marital union, however, deprived then "per accidens" of its higher end, toward which it does not cease to be oriented in its intimate constitution, is imperfect without its ultimate crowning.

4. New theories and authoritative reconfirmations of traditional doctrine

Recently, however, an attempt has been made to give primary prominence to the psychological and affective element of the conjugal society, which must be a full communion of souls between two spouses. In Italy, among others, B. Brugi (L'art. 107 del Codice civile italiano e lo scopo del M., in Rivista intern. di filosofia del diritto, 5 [1925], pp. 113 ff.); L. Cornaggia Medici (Dell'essenza del M., in Il diritto eccles., 39 [1928], p. 398 ff.); G. Viglino (Oggetto e fine primario del M., in Diritto eccles., 40 [1928], p. 142 ff.) oriented themselves toward this current. In Germany, mention should be made of Von Hildebrand (Die Ehe, Munich 1928), N. Rocholl (Die Ehe als gewetes Leben, Dulmen 1936), above all H. Doms (Vom Sinn und Zweck der Ehe, Breslau 1935), and B. Krempel (Die Zweckfrage der Ehe in neue Beheuchtung begriffen aus dem Wesen der beiden Geschlechter im Lichte der Beziehungslehre des hl. Thomas, Benzinger 1941).

Among the reasons that led to this abandonment of the traditional position, the psychological motive prevails, that is, the sincere desire to introduce into marriage a higher note of spirituality. The canonistic conception does not seem sufficient, because, according to them, it would reduce marriage to a specifically sexual function, diminishing its spirituality and reducing it to something material and almost vulgar. Therefore the current doctrine is held to be outdated, since it would be linked to the state of the biological sciences of the 13th century, and hence must be brought up to date with the progress of psychological studies.

These theories threatened to produce doctrinal and practical aberrations in a matter that, more than any other, demands clarity of terms and of concept. For these reasons the Church deemed it opportune to reaffirm the immutable principles of her doctrine. A first intervention came on 3 Oct. 1941, with the address that Pius XII delivered to the S. Rota: "Two tendencies are to be avoided: the one which, in examining the constitutive elements of the act of generation, gives weight solely to the primary end of marriage, as if the secondary end did not exist, or at least were not a finis operis established by the very Ordainer of nature; and the one which considers the secondary end as equally principal, detaching it from its essenziale subordinazione al fine primario, il che, per logica necessità, condurrebbe a funeste conseguenze» (AAS, 38 [1941], p. 423).

The Holy Office, in a decree dated 1 April 1944 (AAS, 36 [1944], p. 103), insists on the dangerousness of the new way of thinking, deliberately devised to encourage errors and uncertainties. This was amply demonstrated by the authors who defended the traditional line. According to them, it is already a serious assertion to interpret can.

1913 § 1 as a simple pastoral formula. But the errors are not limited to this. To mention a few: 1) if the principal purpose of marriage is the completion of the spouses, and offspring is merely a means to that end, it follows that the latter could be sacrificed when it might constitute a threat to the mother's life. 2) Considering marriage, moreover, as an essential perfecting of human life, almost that outside of marriage man remains incomplete, there follows a depreciation of virtuous celibacy, or of the priestly and religious state, against the traditional doctrine of the Church. 3) Likewise, the intrinsic gravity of onanism, so decisively asserted by the Church, does not remain sufficiently explained, inasmuch as it is precisely opposed to the primary end of marriage.

According to the latest directives of the ecclesiastical magisterium, the wording and meaning of the terms must be preserved: primary end and secondary end, and it must be affirmed that the secondary ends are subordinate to the primary one, and not independent.

II. MARRIAGE AMONG PRIMITIVE PEOPLES.

I. PURPOSE AND SOCIAL IMPORTANCE

Frazer, having set out the so-called conceptional theory of the origin of totemism, a theory founded on certain explorations by Spencer and Gillen among the primitives of central Australia, and by Rivers among those of the Banks Islands in Melanesia, concluded from it that «the origin of totemism is a barbarous ignorance of the physical process by which men and animals reproduce their species; in particular, it is ignorance of the role of the man in the procreation of a child».

It is clear that, once this evolutionist thesis of Frazer is admitted, marriage was not instituted and cannot be contracted by primitives for the generation of offspring, but rather for egoistic ends. But this hypothesis of Frazer is unfounded. First, because it attributes to primitives a childish mentality, whereas today, with the fall of Lévy-Bruhl's prelogism and alogism, it has been demonstrated that the primitive mentality is fundamentally similar to our own. Second, the aforementioned peoples are not ethnologically the most ancient. Third, the facts considered relate only to those peoples and, as Granet has observed, may appear an ethnological curiosity limited to an isolated civilization and of fairly small size. Fourth, even very recent research (e.g., J. Haeckel) has clarified better that these peoples of Australia have, on the contrary, the true concept of paternity and a high idea of the origin of life. The same has been observed among the ethnologically most ancient peoples, called gatherers. Indeed, their attentive spirit of observation has even succeeded in establishing the time most favorable to conception. Thus among the African Pygmies of the Ituri (P. Schebesta) and among the Tungus reindeer herders (Shirokogoroff). Precisely because primitives know the necessity of marriage for obtaining offspring, they regard marriage as the foundation and increase of society itself. According to the said Pygmies, motherhood is the greatest desire of woman, offspring is the purpose of the family; they consider marriage an act of social importance; the principal idea they have of it is that of the continuity and progressive increase of the population.

II. IMPEDIMENTS

In contracting marriage, all primitive peoples observe a whole complex of rules and rites, which form an important part of their traditional cultural heritage. The matrimonial impediments are principally consanguinity, affinity, and, where the practice of adoption exists (Andamanese), spiritual kinship. The degree of these impediments and sometimes even the persons to whom they refer vary in every type of civilization, and even among peoples of the same type of civilization (v. EXOGAMY; INCEST; KINSHIP). Among those primitive peoples where monogamy is the rule, another matrimonial impediment is a marriage already contracted

(Karaya of Brazil; v. INDISSOLUBILITY OF MARRIAGE AND DIVORCE). Age, which where initiation exists begins after it, constitutes an impediment only to the use of marriage.

III. ENGAGEMENT

The marriage of primitive peoples ordinarily involves two main, clearly distinct acts: betrothal, which is its beginning, and the wedding, which is its conclusion and realization. Marriage ought to reconcile all the many interests involved, that is, those of the spouses, who must live together and raise the offspring at least in early childhood, that is, until the children are separated from the family and placed in the common houses of the young men and young women, where this custom exists; and the interests of the two related clans, which are social and economic interests. Now, here too the greatest variety is observed among peoples of equal or different civilization. Among the Tungus, for example, there exist three forms of betrothal:

1) made by the parents, if the children are still small; 2) likewise made by the parents, with consultation of the adult children; 3) made directly by the young man and the young woman, according to their mutual sympathy and love, with the due formalities reserved to the parents, subject then possibly to abduction. Among the Bambuti Pygmies of the Ituri all interests are harmonized, or end up being harmonized. Marriage is normally contracted out of the mutual sympathy of the man and the woman, but since it is primarily a contract between family and family (Sippe), it is not officially recognized unless it proves to be economically and socially well founded. Among the Andamanese, on the other hand, who are likewise gatherers, the betrothal is concluded by the parents or by the guardian, that is, by the adoptive parent, when the children are still small. After a brief formal cohabitation for the purpose of notification, the betrothed will not marry until physical maturity is reached; but any infidelity of the betrothed is regarded as a crime.

Among other peoples, ethnologically more recent than the gatherers, the freedom of the man and the woman to contract marriage, with due exceptions, is little or not at all respected. One of these exceptions is the betrothal concluded directly by the young people at the common so-called spring festivals, to which great ethnological importance has been attributed, having been arbitrarily considered as "mass marriages" and remnants of primitive promiscuity. These festivals survive among many primitive peoples of Asia and formerly existed also among Chinese and Japanese peasants. The aforementioned interpretation of them on the part of evolutionist ethnology falls before the observation of the fact that such festivals, even in their present form, so complex, are clearly related to individual marriage, and derive from the initiation of the youth. Note, moreover, that the true and proper betrothal takes place after the preliminary one made by the parents, from the infancy of the children, with which it is often in conflict. In fact, the civilization of these peoples is a cross between the matriarchal agricultural one and that of the pastoralists and totemists.

Various forms of betrothal exist in the matriarchate (v. DIRITTO. IX; MATRIARCATO).

The strangest form of betrothal has been observed among the totemic peoples of central Australia. According to their highly complicated kinship system, every man has a primary right over the daughters of one or more women and secondary rights over the daughters of many other women. The first agreements are made before the birth of the man and sometimes even before the birth of the future mother-in-law. The parties concerned sometimes introduce modifications to the original agreement, which is not done without long discussions. But when a man has reached twenty or twenty-five years of age, the agreement may be called definitive: he knows with certainty who his future spouse will be. She, then, can be no more than a year or two old; and therefore he must wait until she has reached the proper age, which is held to be that of fourteen.

IV. GIFTS, DOWRY AND COMPERA OF THE BRIDE

Among many primitive peoples, at the betrothal and at the marriage and, when a long time elapses between the one and the other, as in the previously considered case of the Australian totemists, at determined times gifts must be exchanged from one family to the other according to the traditional uses and customs proper to every civilized people. The meaning of these gifts is very varied. It can be primarily symbolic and auspicious. Among the islanders of the Woodlark Islands in Melanesia, for example, the gift is a sign of the proposal of marriage and, if accepted, of its approval or conclusion. The gifts can also constitute a participation of the two families in the expenses of the marriage and in what is necessary to set up a new family. Among the Andamanese, for example, and according to Man, at the marriage useful gifts must be offered. Among the aforementioned Tungus, the clan of the groom must give to the clan of the bride for the marriage a determined number of reindeer, or of horses or of other animals, or else money and other gifts. This is called calim.

The bride, however, receives from her own clan a dowry of equal value, that is, animals and feminine personal effects. As a general rule, the dowry is considered as the private property of the woman, of which she can dispose almost without any control, with the right to take it away when she should leave the clan of the husband, except in the case of determined crimes. Then it is inherited by her daughter. In the marriage said to be of exchange of women between two or three clans, the calim is not given. It varies in value according to the different tribes, but also according to the personal, family and domestic qualities of the bride. The same is observed among the Manchus and the Buryats. These peoples deny that, in giving the calim, they intend to buy the bride. Truly it cannot be called a purchase proper, given that the dowry is equivalent to the calim. With the dowry, moreover, the bride brings all that is needed to found a family.

But among many other primitive peoples there exists a true purchase of the bride, as though she were a beast or any ordinary thing. For example, in Cameroon (French Equatorial Africa) the father promises his daughter three or four times, that is, each time that a buyer presents himself with a higher price, having himself given a larger advance payment by each one, which allows him to make compensation for the damages of a refused betrothal. The custom is supremely deleterious, not only on the social plane but on the moral one, because, given the broad familiarities that the betrothal permits, the girl, passing from one to the other of her betrothed, is often satisfied with the variety of her experiences and moreover considers herself very glorious for having been able to please so many times, with a large sequel of quarrels and disputes.

V. THE WEDDING

It can be very simple and of a private family character, or extremely complicated because of the many religious and superstitious beliefs and practices that pervade it, and because of the social festivities, lasting even several days, that it entails, at which dances, songs, music are performed and occasional speeches are made. Among the Andamanese, for example, the wedding, as Man expressly notes, has no religious character, the help and blessing of God are not invoked, but it is merely a public social and juridical act.

Among the islanders of Woodlark the wedding is a family act. When the betrothed have reached sexual maturity, the relatives lead the bride to the house of the groom, where a banquet is held. Sometimes, instead, it is enough for the spouses to eat together and go together into the countryside. Similarly among the Australian totemists there is no special wedding ceremony: the betrothed is led in the evening to her betrothed, for whom she and her relatives build a hut, where they will live together as husband and wife.

Among the Pygmies of the Ituri no ceremony is performed for the individual marriage. However, some groups have the custom of the double wedding, which in essence comes down to this: the families of the spouses gather in the forest, where they hold three days of feasting and dancing. There is the handing over of the spouses, who then, meeting, look each other fixedly in the eyes, to signify that they are contracting a kinship that binds them in destiny. The elders address words of exhortation to them: that they be friendly toward all, especially toward the old and the children; that they procure food; that they be docile and gentle; from now on they may live in peace and beget children. For very many other peoples, however, the wedding has, besides the ethical and social character, also a religious one. For example, among the T'u jen (a Turco-Mongol people of Kansu in northwestern China), the wedding is a great and solemn social manifestation, during which many ceremonies and symbolic rites are performed. But the properly nuptial rite is directed by the grandfather of the groom and, in his absence, by his maternal uncle. He orders the prostrations to the God of heaven and to the spirits, then to the parents of the groom and to the relatives of the groom and of the bride, and invokes the blessing upon the new couple.

Among the Kachin in Burma the celebrant recites the legend of the first human couple; among the Lolo, the legend of the flood, in which the surviving brother and sister unite by the will of God. These peoples thus link every marriage with the first human marriage. They themselves and many others require from the spouses also the sacrifice to the ancestors of the family in which the wedding takes place. A sacrifice which, for those peoples who are accustomed to carry out the betrothal during the spring festivals (among some peoples also on the occasion of funerals, for example, among the Karen of Burma), does not have a definitive character for conjugal life. For until the first child is born, the bride either returns to her father's house and pays some brief visits to the groom's house at set times, or stays with the groom, but behaving outwardly in a manner as if they were not spouses, never exchanging a word in public. Such a marriage could be defined as temporary or conditional. When, however, the betrothal festivities fall into disuse or are abolished, the marriage marks the true beginning of the couple's stable life. So that for these peoples, as well as for those others who permit premarital relations to the young, once the marriage has taken place, what Malinowski observed among the islanders of the Trobriands in Melanesia holds true: "The marriage bond, once contracted, is firm and exclusive, at least in the ideal of the law, the morality and the custom of the tribe."

VI. SECOND MARRIAGES AND FORMS OF MARRIAGE

Second marriages are not forbidden: but the greatest respect is shown, as Man noted among the Andamanese, for those who, remaining in widowhood and living chastely, preserve their esteem and their love for the deceased spouse; they are moreover judged outright badly if the widowed person is very advanced in age. They become obligatory, on the other hand, among those peoples where the custom of the levirate exists, as among the Sifan (Tibetans), the Tungus, the Buryats, the Koryaks, the Chukchi, the Aleuts, the Amerindians, the ancient Xianbei, the Huns, etc.

There are, finally, several forms of marriage: monogamy, polygamy, polyandry, which have a very different cultural significance (v., in addition to FAMILY, the respective particular entries).

VII. ORIGINS OF MARRIAGE

According to evolutionist ethnologists there was once a time when men did not know marriage and the laws that regulate the institution, but lived in sexual promiscuity, like animals. Morgan, in his scale of the evolutionary history of marriage, calls this phase the "stage of agamy." The reasons adduced to support this thesis are ultimately those put forward by Frazer, but these are arguments which, as has been seen above, prove unfounded in the light of the latest results of science.

According to the belief of primitive peoples, especially those ethnologically most ancient, marriage was instituted by God, who created the first human couple, or even, according to some peoples, several human couples, but always in couples, and forbade incest (v.). This belief is confirmed by the majority of ethnologists and linguists, who on the basis of sound scientific reasons recognize the monogamy of the human race.

III. HISTORY OF MARRIAGE

I. AMONG THE ANCIENT HEBREWS

In the first pages of the Bible (Gen. 2:18-24) marriage is presented as the union between man and woman, willed by God for the reproduction of the species (ibid. 1:27 ff.) and for the mutual advantage of the two individuals (ibid. 2:20).

Its monogamous character also emerges from the note of wonder with which the appearance of polygamy is described (ibid. 4:19). Nevertheless, in the patriarchal period (Jacob) and the monarchic period (David, Solomon) the practice of a man marrying several women (polygyny) is held to be legitimate and approved by God. After the exile the custom must have slowly disappeared; in New Testament times monogamous union in practice predominated even in aristocratic circles.

Although allusions to accessory or ceremonial elements are not lacking (cf. Gen. 29:22, 27; Ecclus. 14:10; Ps. 18:6; Is. 61:10; Jer. 7:34; 16:9; Cant. 3:11; I Mach. 9:37; Mt. 25:1 etc.), in the Bible only in Tob. 8:24 is there mention of a written document drawn up at the time of the marriage.

The custom, however, appears widespread in the diaspora. Some specimens have been discovered in the Elephantine papyri (cf. A. Cowley, Aramaic papyri of the fifth century b. C., Oxford 1923, nos. 15, 18, pp. 44-50, 54-56). As to the content of such a writing, various conjectures are possible. In the code of Hammurabi (§ 128), on the other hand, the validity of marriage is made subordinate to the drawing up of a written contract. It is difficult to speak of a free contract stipulated by the individuals concerned. Among the Hebrews, as among other Semites, it was the parents who decided the fate of their children (cf. Gen. 24:2-4; 28:1 ff.; Eccl. 7:27); occasionally the effective intention of a young man to marry a girl not pleasing to his parents is recalled (Gen. 28:6-9; Jud. 14:2 ff.). Much less freedom was recognized for a daughter, whose consent, however, was sometimes sought (cf. Gen. 24:57).

In Hebrew law there is mention of a sum or its equivalent in kind, which the bridegroom must deliver to the father of the betrothed (cf. Gen. 34:12; Ex. 22:16; I Sam. 18:25; Hos. 3:2). In Deut. 22:28 ff. the price is set at 50 shekels, which the seducer of a virgin must pay to her father before marrying her. In the code of Hammurabi too (§§ 138, 139, 164) a purchase price (ti-fa-tu) is mentioned. The difficulty of comparisons with the customs of other related peoples and the uncertainty of the meaning of the Hebrew term mōhar, by which this price is designated in Gen. 34:12; Ex. 22:16; I Sam. 18:25, have caused a diversity of explanations among the various authors. Some see in the mōhar the essential element of the marriage contract, considered as a purchase of the woman, or as a pretium pudicitiae (Eberharter, Neubauer, Zolli, Neufeld) or as a simple obligatory gift (Heinisch, Kalt, Burrows, Nötscher, etc.). Undoubtedly, from the various marriages described, from the context of the three passages recalled above and from the comparison with the procedures for true commercial transactions, it does not seem legitimate to deduce that the marriage represents the effect of a sale. Besides the mōhar, the bridegroom offered other gifts (cf. Gen. 24:53; 34:12). The bride too brought a dowry, of which she retained ownership (ibid. 24:53; cf. code of Hammurabi, §§ 142, 149, 150, 156, 162, 163, 172, 173). If the dowry included a slave as the husband's concubine (cf. Gen. 16:3; 24:59, 61; 29:24, 29), the mistress retained her right over her (ibid. 16:6; cf. code of Hammurabi, §§ 144, 146, 147).

While the seducer is obliged to marry a young woman he has violated (Ex. 22:16) without the possibility of divorcing her (Deut. 22:29), the girl's virginity is a conditio sine qua non for the validity of the marriage. Responsibility begins with the betrothal. A young woman who unites with a strange man is already condemned to death as an adulteress (Gen. 38:24). Such severity suggests that even for the young man who does not keep his promise of marriage, at least a pecuniary penalty was reserved, similar to that sanctioned in the code of Hammurabi (§ 159).

In Sacred Scripture no minimum age of the spouses is specified. From the average observed in Egypt and from Talmudic statements (Abhōth, V, 24; ed. Goldschmidt, VII, p. 1171) one may conclude that men married around the age of 18-20, while for girls even an earlier age sufficed. Regarding matrimonial impediments, Hebrew law is generally concerned only with kinship and nationality. In the most ancient period the practice prevailed of marrying even between half-brothers and half-sisters (cf. Gen. 20:12; II Sam. 13:13) and between cousins (cf. Gen. 24:15, 47; 28:2, 18 ff.). In Leviticus marriages between blood relatives are forbidden, and in particular with one's own mother or with the father (Lev. 18:7), with the stepmother (ibid. 18:8; 20:11; cf. Deut. 22:30; 27:20), with the half-sister (Lev. 18:9; 20:17; cf. Deut. 27:22; II Sam. 13:1 ff.), with the paternal and maternal aunt (Lev. 18:12 f.; 20:19), with the daughter-in-law (ibid. 18:15), with the sister-in-law (ibid. 18:16; 20:21), with the stepdaughter (ibid. 18:17), with the daughter of one's own son or of one's wife (ibid. 18:17) and with the mother-in-law (ibid. 20:14). The law against marriage between brothers-in-law had an exception in the case where one died without children; the brother of the deceased was obliged to marry the widow in order to perpetuate his name, and the firstborn of such a marriage was considered juridically the son of the deceased himself (v. LEVIRATE).

There is also insistence on reproving marriage with foreign women as a cause of religious syncretism and moral corruption (cf. Gen. 28:6-9; Jud. 3:5 f.; I Kings 11:1 f.; Mal. 2:11 f.; Esd. 9:1 ff.; Neh. 10:30; 13:23-25). In a particular way the prohibition applied to the various Canaanite populations of Palestine or of the neighboring regions (cf. Ex. 34:11-16; Deut. 7:1-4). But in the most ancient times such a law appears less rigorous (cf. Gen. 34:14; 41:45; Ex. 2:21; Jud. 3:6; 14:3, 10; Ruth 1:4). Even Moses had a Midianite as his wife (Ex. 2:21; Num. 12:1). After the exile, on the other hand, the exclusion becomes ever more rigorous, as appears from the books of Ezra and Nehemiah and from Talmudic tradition. An evolution is also noted in the practice of marrying two sisters, as Jacob did; in Lev. 18:18 simultaneous union with such persons is forbidden. A particular severity was required for the morality of the future wives of priests (ibid. 21:7). The high priest could marry only an Israelite virgin (ibid. 21:13 f.). A divorced woman who had subsequently remarried was forbidden a new marriage with her first husband (Deut. 24:4); a young heiress was permitted to unite only with one of the same tribe (Num. 36:6 ff.).

The law against consanguineous marriages explains the horror of incestuous relations (cf. Gen. 19:30-37; 35:22; 49:4; Lev. 20:11 ff.; Deut. 27:20, 22 f.; Ex. 22:11). The holiness of marriage, with evident allusion to the primitive monogamous form, stands out from the constant use in the prophets and in the Song of Songs of representing the union between God and the chosen people with the metaphor of the bond existing between man and woman. In the same writings idolatry is described as a most grievous sin of spiritual adultery. In the Mosaic law very severe penalties are sanctioned against adulterers, particularly when the woman is guilty (cf. Gen. 39:7-20; Ex. 20:14, 17; Lev. 18:20; 20:10; Deut. 22:22; II Sam. 11:2 ff.; Jer. 5:8 ff.; Ex. 23:20; Hos. 4:2). It is the severity found in other Semitic legislations (cf. code of Hammurabi, § 129; Hittite and Middle Assyrian laws in G. Furlani, Leggi dell'Asia anteriore antica, Rome 1920, pp. 87, 96-99). Even for the mere suspicion of adultery the woman was subjected to a terrible judgment of God (Num. 5:12 ff.; cf. code of Hammurabi, § 132).

From the account in Gen. 2:24 it follows that the union between man and woman was considered indissoluble. However, in time the right of divorce was recognized for the husband (Deut. 24:1-4). The generic motivation ("something shameful"), given as the cause of the separation, lent itself to a flexible interpretation. In fact, it is known that around the New Testament era some rabbis of the school of Hillel were very indulgent in this regard (cf. Gittin, IX, 10; ed. L. Goldschmidt, V. Berlin 1930, p. 687). At that time the right to divorce was practically recognized for women as well (Mk. 10:12; Acts 24:24; cf. Flavius Josephus, Antiq. Iud., XX, 141-43). Jesus Christ, recalling the ancient law, declared that God tolerated the contrary practice because of the "stiff neck" of the Jews (cf. Mt. 19:8).

Finally, mention should be made of the texts that recommend perfect conjugal fidelity (Prov. 5:15-20; 6:24-35; 23:26-28; Eccl. 9:1-13; Mal. 2:14 ff., etc.) or describe the ideal wife (Prov. 31:10-31; Eccl. 26:1-24) in opposition to the perverse one (Eccl. 25:17-36). For the preference of the married state over celibacy cf. Judg. 11:37.

Angelo Penna

II. IN ROMAN LAW

Marriage is the cohabitation of a man and a woman with the intention of being husband and wife (affectio maritalis); such intention must be lasting, in the sense that it is not sufficient for it to exist at the moment when the marriage is entered into, but it must be maintained, so that its ceasing entails the dissolution of the marriage itself.

The definitions of Roman marriage, one by Modestinus (D. 23, 2, 1): "Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio"; the other contained in the Institutes of Justinian (1, 9, 1): "... viri et mulieris coniunctio individuum consuetudinem vitae continens", show how the will of the spouses tends to establish a communion of life at least intentionally perpetual; marriage, in fact, is not conceived by the Romans as a transitory relationship, even though it may cease with the ending of the affectio maritalis.

Roman marriage has been exactly compared to possession (possessory theory of marriage), since, in the one and the other institution, there is the coexistence of two elements, one material (respectively cohabitation and availability of the thing possessed), the other spiritual (affectio maritalis and animus possidendi); with this difference, that while in possession the material element acquires greater prominence, in marriage the spiritual one is instead more important.

In the most ancient period marriage was accompanied by the woman's departure from her family of origin and her subjection to the power (manus) of the head of the family into which she entered by reason of the marriage itself, through particular legal transactions (confarreatio, coemptio) or, in the absence of these, as a result of the woman's remaining under that power for a year (usus). From this, however, one must not deduce — something that is also confirmed by very recent research — that the Romans knew two types of marriage, one cum manu and one sine manu; the subjection of the woman to the manus is a fact distinct and separate from the marriage, to such an extent that, even after the marriage is dissolved, to free the woman from the manus a specific legal transaction is necessary, contrary to the one employed for the subjection.

In relation to and as a consequence of its structure, Roman marriage lacks a legally determined form for its conclusion, even though it is, as is natural, accompanied by ceremonies and rites (this is still true in the Justinianic age, even if in that age the priestly eulogia was often present). It would in fact be inconceivable to have obligatory recourse to determined formalities to give life to a union that, at any moment, can cease through a change of will even of only one of the contracting parties. Thus Roman marriage can also be contracted between absent persons, who manifest the intention of establishing the conjugal society by any suitable means (for example, by letter), while the woman enters the husband's house, thereby bringing into being the objective element of cohabitation. As regards proof of the intentional element, this is given by the declarations of the spouses or of friends, but even more by the honor matrimonii, which is precisely the externally appreciable manifestation of the affectio maritalis, and which consists in the fact that the spouses treat each other publicly as such, with the woman's participation in the social position of the husband. Equally free from formalities was divorce, even though, from a certain period onward, usage and legislation sought to impose the observance of determined solemnities.

The conception of marriage as an exclusively de facto relationship became altered in the Justinianic age, in which there emerges the tendency to attribute to the merely initial consent the effect of constituting the marriage. This in relation to the Christian ideas that were exercising ever greater influence; and which, if they did not succeed in imposing themselves completely in the legislation of Justinian (who confirmed, albeit with broad mitigations, the lawfulness of divorce), nevertheless exercised a wide influence on the imperial norms.

The requirements for Roman marriage may thus be summarized: connubium, that is, the reciprocal capacity to contract a legally valid marriage; natural capacity, for which the attainment of puberty is necessary (14 years for the man and 12 for the woman) and by which marriages are, in Justinianic law, forbidden to eunuchs; consent of the spouses and of the paterfamilias (at first essential, then of ever more reduced importance, both because it was progressively limited to a passive assent, and because, in Justinianic law, the authorization of the magistrate can be substituted for such consent); consent of the father, if he is not the paterfamilias, inasmuch as the children born from the marriage of one of his descendants may later be subjected to his power.

Furthermore, one who is bound by another marriage, one who is a slave and, under Justinianic law, one who has made a vow of chastity or has received the major orders cannot contract marriage. Alongside these prohibitions, which have general validity, there are others of a relative nature, which prevent marriages between determined persons (kinship and affinity, adultery, abduction, relations of guardianship and of public office).

The marriage rite of the Romans culminated in the dextrarum iunctio (v.) of the spouses in the presence of a woman (pronuba) who was elderly and married only once (univira). In classical art this figure is often replaced by the diademed figure of Iuno Pronuba, the goddess charged with the protection of marriages. The early Christians, in the first marriage scenes depicted on sarcophagi, found no difficulty in inserting this image among those of the spouses; it appears in fact in the first third of the 4th century in a sarcophagus now in the cathedral of Vescovo, in another now preserved in the Museum of the Camposanto Teutonico, in a fragment walled into the Villa Doria Pamphili and finally in a grandiose sarcophagus now in the Lateran Museum. The presence of Juno on these Christian sarcophagi is evidently due to the fact that she had completely lost her character as a goddess, had nothing mythological left, and the figure was by then devoid of its original meaning. After the first third of the 4th century the image of Juno disappears entirely, or is replaced, as in a fragment from Villa Albani of the Theodosian age, by the figure of Christ himself, of "Iesus Pronubus" as St. Paulinus of Nola calls him (Carm., XXV, vv. 151-52).

Giuseppe Bovini

III. IN CANON LAW.

1. Up to the Council of Trent

The historical development of marriage in the legislation of the Church must be divided into two great periods: that prior to the Council of Trent, and that which runs from Trent to the Ne temere (which entered into force on 19 April 1908) and, then, to the current regulation of the CIC for the Western Church and to the motu proprio Crebrae Allatae of 12 March 1949 for the Eastern Church. It has been correctly observed that the first period is by far the most important from the scientific point of view, since in it all the various controversies unfold that have so preoccupied and interested historians, jurists and theologians.

Canonical doctrine on the matter developed very slowly alongside the lay legal systems, and only in the 11th-13th centuries is there a decisive orientation among writers and legislators to replace the norms of ecclesiastical source entirely for the common law and to affirm the exclusivity of the Church's iurisdictio. This has led to the common belief that the canonical order up to the Council of Trent limited itself, in matrimonial matters, to receiving and adapting the principles handed down by Roman law, especially Justinianic law, which in turn had been influenced by early Christian doctrine. A deeper investigation, however, requires bringing to light the profound gap that separates the Roman conception, even the post-classical one, from the Christian one regarding marriage; for while in Roman law marriage was a factual relationship based on cohabitation and continuous consent, the Church, on the other hand, followed from the very beginning the principle handed down by the New Testament and could not disregard the importance of the initial consent that gives rise to a status independent of the persistence of the parties' will and to the sublime grafting of that status into the supernatural life; so that, while it concealed the profound innovations introduced by respecting the ancient forms, it forced the institution to modify itself and to evolve according to the basic idea, namely that marriage, closely joined to the psychological and physiological needs of man, had been transformed into an act productive of participation in the divine life, that is, into a Sacrament that is at the same time a contract.

It has been correctly emphasized that the first scientific treatment of canonical marriage is to be sought in the patristic literature (D'Avack); the Fathers, indeed, although starting from the conviction that the best state and the one most conformable to the Christian ideal was that of chastity and continence (nuptiae terram replent, virginitas paradisum: St. Jerome, Adversus Iovinianum, I: PL. 23, 246), justified marriage ethically as a means for the propagation of the human race and for avoiding the dangers of incontinence, and placed the accent on the honestas and bonitas of the institution as a remedium concupiscentiae. On these foundations was formed St. Augustine's doctrine of the three bona of marriage, « which bring it about that the sexual act comes to constitute at the same time a concubitus utilis, because directed to the natural purpose of the generatio prolis, a concubitus singularis, because performed only with one's own spouse, and finally a concubitus inseparabilis because performed always with that spouse alone » (D'Avack).

In this long period, therefore, the Church, although decisively setting out to uproot the Roman and Germanic concepts on the matter, limited itself to laying down particular norms, such as, for example, those on impediments, on degrees of kinship, on incests, on adulteries, on divorces, on begun marriages, etc.; holding the faithful accountable for violations of these apparently uncoordinated precepts. One may therefore observe that up to the 10th century the Church's interference in marriage has a character that is more than anything else disciplinary. In this same period and in the one immediately following, there is controversy concerning the sacramentality of the bond, the separability of the contract from the Sacrament, the determination of the minister of the Sacrament, the value of the copula carnalis. Hincmar of Reims (Ep., XXII: PL. 126, 137) reaches the conclusion that since the Sacrament arises only between the baptized, only marriages between the baptized are indissoluble, provided they are followed by the copula.

The theory that the copula was necessary for the perfection of marriage was accepted by Gratian, who, starting from the distinction between coniugium initiatum (the giving of mere consent however manifested) and coniugium ratum, which according to his terminology would exist only after the copula, concluded: « sciendum est quod coniugium desponsatione initiatur commixtione perficitur... unde inter sponsum et sponsam coniugium est sed initiatum, inter copulatos est coniugium ratum » (Decretum, c. 34, C. XXVII, q. 2). Consequently the master of the Bolognese canonistic school maintained the prevalence of a subsequent desponsatio followed by copula over the first one concluded with another person sola verbis (c. 1, C. XXVII, q. 2). This conception, taken up by the decretists and in particular by Paucapalea, Stephen of Tournai and Rufinus, was, on the other hand, decisively opposed by the school of Paris and especially by Peter Lombard, who defined marriage as a verborum obligatio elevated to a Sacrament and perfected independently of the copula. As is well known, the official doctrine of the Church has denied that consummation pertains to the essence of marriage, basing itself also on a clear statement of St. Thomas (Sum. Theol., III, suppl., q. 42, art. 4). Nevertheless the so-called copula theory weighed heavily on the evolution of canonical doctrine in matrimonial matters and probably accentuated the confusion, characteristic of this period, between betrothal (consensus de futuro) and marriage (consensus de praesenti); it gave rise to the singular institution of presumed marriage (v. below) and indirectly contributed to the affirmation of the dissolution of a ratified but unconsummated marriage by solemn profession and, subsequently, by pontifical dispensation (v. below).

Another problem hotly debated in medieval practice and doctrine was that concerning the necessity of a form of marriage; in fact, while on the one hand it was affirmed that matrimonium facit voluntas and that such voluntas could be objectified in any manner (a Romanist principle), on the other hand the need was felt to determine the initial moment of the constitution of the bond through the manifestation of the conclusive volition of the betrothed (cf. Sum. Theol., III, suppl., q. 45, art. 5).

It must be noted that the vast majority of modern scholars has resolutely denied that before the Council of Trent one could speak of a form of canonical marriage, although clandestine marriages were severely prohibited; this opinion is founded, besides on the conclusions of Gratian and the decretists, on passages of various authoritative decretists, among them the Hostiensis. But recent research allows us to observe that, although express legislative provisions were lacking (with the exception of the obligation sanctioned by the Fourth Lateran Council of 1215 to have the banns of marriage precede the conclusion of marriage in order to ascertain the possible existence of diriment impediments), the orientation of many canonists was to prescribe to private autonomy the manner of manifestation of matrimonial consent. In fact, from the Licet praeter of Alexander III (c. 3, X, 4, 4), from the Tuae fraternitati of Innocent III (c. 25, X, 4, 1), from a passage of Innocent IV ("matrimonii Sacramentum non solum consensum sed verba"), it may be inferred that, even before the Council of Trent, the prevailing doctrine held that the marriage contract had to be concluded with a direct and unequivocal manifestation of consent through the publice pronouncement of the verba de praesenti, which was considered the ordinary form of celebration, adaptable to any type of marriage, as is confirmed by an almost universally observed practice. On the other hand, since the iter of legislative systematization had not yet been completed, there was recognized, by way of exception, the validity of presumed marriage (the consensus de futuro followed by copula counted, through a conversion of the transaction, as consensus de praesenti), of marriage by proxy, and of that concluded per signa by the mute or the deaf, as well as of so-called clandestine marriages (v. below). As regards the blessing of the priest, the Latin Church, while exhorting the faithful to give their consent in facie Ecclesiae and to attend the sacred rite that concluded with the blessing, did not intend to prescribe, even after the Council of Trent, the observance of this requirement ad validitatem, but only ad solemnitatem. Some historians have, moreover, pointed out that "the rite of the priestly blessing must have been far more widespread in Italy in the 13th-15th centuries than is commonly believed" (Marongiu).

2. From the Council of Trent to current legislation

The greatest elaboration of the matrimonial matter came about through the work of the decretalists, to whom are owed the framing and resolution of the principal problems, including that of the potestas in Matrimonium over which the Church fought a centuries-long struggle with the States. Even a superficial examination of the discussions held at the Council of Trent suffices to realize the importance of the conceptions elaborated by the decretalists. Thus the Fathers of the Council resolved the grave controversial questions, such as the full coincidence of the elements of the transaction with the elements of the Sacrament, the value of marriages contracted between baptized persons and infidels with the consequent proclamation of the unfitness of the infidel for the Sacrament and of the differentiation between disparity of worship and mixta religio (already announced by Uguccio, Patience and Guglielmo Durante), the determination of certain impediments, among them abduction, the non-essentiality of the consent of relatives (a truly revolutionary pronouncement dictated by the favor matrimonii), the obligatory nature of the form of celebration.

The Council of Trent, having first proclaimed the divine origin of the institution and its indissolubility and exclusivity, affirmed that monogamy is a principle of divine law, that the Church has the power to establish diriment impediments even for degrees of consanguinity and affinity other than those provided by Leviticus, that marriage is indissoluble even in the case of heresy, of molesta cohabitatio, affectata absentia and adultery, that separation quod thorum seu quod cohabitationem is permitted; that the cognizance of matrimonial causes belongs exclusively to ecclesiastical tribunals, that a ratified and non-consummated marriage can be dissolved for religious profession. The canones super reformatione, of which the most important from the innovative point of view was the Tametsi, decreed that before the celebration three banns should be published in Ecclesia on feast days during solemn Mass (only at a later period was it permitted that the banns could also be published by posting on the church door) and that the exchange of consents should take place before the personal parish priest of the spouses-to-be (testis qualificatus) and at least two communes witnesses; that the celebration having taken place should be certified in the appropriate parish book (c. 1). The impediment deriving from spiritual kinship was limited to the bond between the baptized or confirmed person and his parents with the godparent and with the baptizer or confirmer (c. 2); the impediment of public honesty arose from valid betrothal only within the first degree of kinship (c. 3); the impediment of affinity arising from fornication was limited to the first two degrees of consanguinity (c. 4); the prohibition of cohabitation struck spouses who had knowingly contracted marriage within the prohibited degrees (c. 5); the impediment of abduction was present until the abducted woman had regained her freedom and the abductor, even in the case of marriage, had the duty to provide her with a dowry (c. 6); parish priests were forbidden to assist at the marriages of vagi without prior verification of free status and the authorization of the bishop (c. 7); concubinaries who, after three admonitions by ecclesiastical authority, had not put an end to their sinful state were to be excommunicated (c. 8); excommunication ipso facto was to strike those who had coerced subditos suos vel quoscumque alios into marriage (c. 9); the ancient prohibition of weddings between Advent and Epiphany, Ash Wednesday and the octave of Easter was reconfirmed (c. 10).

As is well known, the provisions of the Tametsi entered into force only where it was published and consequently in many regions, especially in the north and east of Europe, the earlier provisions remained in force. Moreover, even in places where the Tridentine decree entered into force various interpretative questions arose, among which the following are particularly to be remembered: 1) whether a marriage celebrated with a defect of form was valid so as to give rise to betrothal (negative answer); 2) whether the principle enunciated in the decretals Veniens of Alexander III and Is qui fidem of Gregory IX on presumed marriage was still applicable (negative answer); 3) whether marriages contracted with the omission of the banns were to be considered clandestine (negative answer); 4) whether so-called surprise marriages were valid, that is, when the parish priest had assisted invito (affirmative answer).

The most important legislative sources after Trent are: the Ad compescendum of Sixtus V (30 Oct. 1586, Bullarium of Cocquelines, vol. IV, pars IV, p. 267) which imposed severe sanctions on those spouses who had separated without the verifying authorization of the judge; the brief Cum frequenter of the same Pontiff to the nuncio of Spain (27 June 1587; Bullarium cit., loc. cit., p. 319) which established the principles concerning the sexual capacity of man; the Magnum in Cristo of Urban VIII (20 June 1637, Bullarium cit., vol. VI, pars II, p. 103) which established grave penalties against those guilty of bigamy; the Declaratio benedictina of Benedict XIV (4 Nov. 1741, Bullarium Benedicti XIV, I, p. 53) which recognized in Belgium and Holland the validity of marriages contracted in any form by non-Catholic baptized persons among themselves and by a Catholic with a non-Catholic, notwithstanding their illicit nature. Of the same Pontiff, a distinguished canonist, there are to be remembered the Satis vobis (17 Nov. 1741, Bullarium cit., I, p. 54) which establishes the general principles on the subject of clandestine marriages, after having brought to light their grave inconveniences, the Apostolici Ministerii (16 Sept. 1747, Bullarium cit., II, p. 199) which had as its object the application of the Pauline privilege with particular regard to converted Jews; the brief Singularis vobis (9 Feb. 1749, Bullarium cit., III, p. 2) concerning the validity of a marriage contracted between a baptized non-Catholic and an infidel who has converted.

Pius VI, with the Auctorem Fidei of 28 Aug. 1794 (Bullarium edited by Spezia, vol. IX, p. 395) confirmed the Church's exclusive right to determine diriment impediments and to exercise the faculty of dispensation, and condemned the proposition of the Synod of Pistoia, which demanded from the civil authority the modification of certain impediments, defining the proposal of the aforementioned Synod as «libertatis, ac potestatis Ecclesiae subversiva, Tridentino contraria, ac haereticali supra damnato principio profecta». With regard to the question of mixed marriages, which can be framed within the theme of the juridical condition of non-Catholics, one should recall the brief Quantopere of Clement XIII (16 Nov. 1763, Bullarium cit., vol. II, p. 425), by which the bishop of Strasbourg was urged to ensure that in Alsace the ecclesiastical laws on marriage remained in force; the Summa iugiter studio of Gregory XVI (27 May 1832, Acta Gregorii XVI edited by Bernasconi, I, p. 140), by which the Bavarian parish priests were forbidden to assist at mixed marriages without a dispensation from the impediment of mixtae religionis; and the epistle Quas vestro of the same Pontiff (30 Apr. 1841; Acta cit., III, p. 122), according to which mixed marriages are tolerable with the proper precautions, but the parish priest may intervene only as a witness, without celebrating the sacred rite and omitting the blessing.

The fundamental principles in matrimonial matters were reaffirmed and confirmed by Pius IX, in the part of the Syllabus devoted to the errores de matrimonio christiano, and by Leo XIII, in the encyclical Arcanum divinae sapientiae of 10 Feb. 1880 (Leonis XIII Pont. maximi Acta, II, Rome 1882, p. 10 ff.).

Finally, on 2 Aug. 1907 the decree Ne temere was published, which entered into force for the entire Latin Church on 19 Apr. 1908. The essential modifications introduced by it were: a) the transformation of the competence of the bishop or parish priest from personal to territorial, and therefore only intra limites sui territorii, whereby the power of the Ordinary and of the personal parish priest of the spouses to assist anywhere at the marriage they contracted ceased; b) the participation of the bishop or parish priest, no longer passive but active, inasmuch as they not only had to excipere the consent of the spouses-to-be but could no longer assist at a marriage inviti, vel ex metu, coactione, fraude detenti, with the consequent impossibility of so-called surprise marriages; c) the bishop or parish priest could not validly assist at the celebration if they were not in legitimate possession of their office or if they were excommunicated or suspended by name; d) the obligatory nature of the form also for mixed marriages and for non-Catholics baptized in Catholicism, nisi pro aliquo particulari loco aut regione uliter a S. Sede sit statutum; e) in the case that the marriage was celebrated by another priest, he had to be furnished with an express delegation from the territorial bishop or parish priest.

The publication of Ne temere induced doctrine to confront the problem of the juridical qualification of the participation of the bishop or parish priest in marriage, since if, on the basis of the Tametsi, there was no doubt that the celebrant presented himself as a testis qualificatus, with the aforementioned modifications the question has been asked whether the powers of the parish priest or bishop in assisting at marriage fall within the potestas iurisdictionis or not. The prevailing and more authoritative doctrine denies it (Gasparri); nevertheless it has been specified that «quam ius assistendi non sit proprio actus iurisdictionis, et assimilatur, tum quia vi officii obtinetur, tum quia delegari potest» (Cappello, De matrimonio, II, § 932; cf. S. R. Rotae decisiones, 1937, dec. 8 coram Winen). A part of doctrine has remained seriously perplexed about the correctness of this opinion (cf. Connell, De intima natura assistentiae matrimoniali, Rome 1940, and most recently, P. Gismondi, I poteri del parroco e del vescovo nella celebrazione del M., in Studi Del Giudice, Milan 1951, p. 315).

As is well known, the norms sanctioned by the Council of Trent and the modifications of Ne temere were substantially received by the CIC (v. below, § IV).

The Church has finally laid down, with the motu proprio Crebrae sillatae of 12 March 1949 (AAS, 41 [1949], p. 89 ff.), the new discipline of marriage for the Eastern Church, which presents itself, as Ne temere did in its time, as an anticipation of the forthcoming codification for the Eastern Church. The intention of the ecclesiastical legislator was to unify the discipline in the Eastern Church with that of the Latin Church; nevertheless some essential differences have remained, among which the preeminent one is that sanctioned in can. 85 § 2, whereby the sacred rite is raised to a condition for the valid formation of the bond. It follows that the administration of a sacramental (blessing) is grafted onto the procedure through which the natural consent manifested by the spouses produces its juridical effects.

Pietro Gismondi

3. Clandestine marriage

a) Concept of clandestinity. — The etymology of clandestine is commonly found in the word clam or in its diminutive clanculum, from which comes the verb clanculare, that is, to hide. Clandestine marriage, originally, would therefore indicate the marriage contracted in secret, without witnesses, such as not to allow juridical proof. Subsequently, those contracted without the customary solemnities, and those not preceded by the due banns, according to what the Fourth Lateran Council had prescribed, came to be called clandestine marriages.

The expression «to contract marriage in facie ecclesiae» or «ad valvas, ad fores Ecclesiae» has its own origin. Among the nuptial customs of the Middle Ages was that of presenting oneself before the Church to express consent in the presence of the priest and to receive his blessing; in some cathedrals there was a door reserved for these ceremonies, the marriage door, often adorned with symbolic sculptures. Such a custom remained in France and in England until the 16th century. After the Council of Trent, the concept of clandestinity underwent a change; it came to mean the marriage contracted without the form established by the Council and, subsequently, by the decree Ne temere.

In order to speak of a clandestine marriage, it is not enough that it be contracted in the form of a pure bilateral consent, devoid of solemnity and publicity; there is also implicitly required the existence of laws or customs that in some way condemn or censure unions thus contracted, without for that reason rendering them null. The validity of a clandestine marriage derives from respect for the essential elements; the condemnation derives instead from neglecting the secondary or accessory elements, that is, all those things that are not ad essentialia but, as the Scholastics express it, are de honestate, de decentia, de convenientia.

b) First historical foundations of clandestine marriage. — The practice of contracting clandestine marriage is founded on the concept of consensual marriage, such as was held also among the Romans.

The Church intervened as early as the 3rd century against the imperial laws limiting the right of nature, in order to permit clandestine marriage to Roman matrons who, given their social position, could marry only a clarissimus. The biting criticism made on this point by Hippolytus against Pope Callistus in the celebrated controversy is well known (Philosophumena, IX, 12: PG, 16, 3385-88). At the time when the Church, together with the Christian emperors, is no longer outside the State, through provisions mostly conciliar, efforts are made to establish the formalities of the contract in order to prevent clandestine unions, which were not free from drawbacks. Clandestine marriages, considered valid according to the doctrinal premises set out above, but at the same time unlawful, in fact opening the way to polygamy and giving the contracting parties occasion to disregard the impediments that the Church deemed it opportune to establish against the contracting of marriage in certain cases, could not fail to concern the Church from remote ages.

In the centuries of Scholasticism, the affirmation of the consensual theory, which, insisting on pure patristic tradition, recognizes in consent the effect of constituting marriage a sacrament, does nothing but affirm doctrinally the institution of clandestinity. By the followers of this theory, just as consummation is not required for the validity of marriage, so legal formalities are not required.

Not that important value is not attributed to these formalities. Hugh of St. Victor clearly emphasizes their importance in furnishing proof of the marriage having taken place. But, like all the followers of the consensual theory, he too accepts such dangers as an inevitable effect (De Sacramentis christ. fidei, cap. 6, 488: PL 176, 479-520).

Gratian, although belonging to another school, recognizes the validity of clandestine marriages, but reveals the importance of the nuptial blessing with regard to proof of the marriage. Indeed, he finds the reason for the prohibition of clandestine marriages precisely in this difficulty of proof (17, C 27, q. 1). For Peter Lombard too, the blessing and the nuptial ceremonies, although not being essential elements for constituting the sacrament, give the marriage itself decorum and solemnity (Sent. IV, D. 28, C 2). This becomes the common doctrine.

c) Clandestine marriages at the Council of Trent. — A fierce struggle against the validity of clandestine marriages admitted by the Church comes from the Reformers.

Clandestinity in Luther is understood in the sense of a marriage contracted without the consent of the parents and also in the sense of a marriage contracted without publicity. Against these two forms of clandestinity he struggles strenuously, claiming for parents the right to intervene with their authority in the marriages of their children and also attributing to them a power to have marriages annulled. Against the possible abuses of parents, however, he permits, as a work of conciliation, the intervention of the authority, of the parish priest and of good friends. Conceiving marriage as a public state, Luther wants it to be contracted publicly, before the community and in the presence of witnesses. Nor will it be the Church that has the exclusive right to make the marriage public or existing in itself. Calvin and Monner too are against clandestine marriages, inasmuch as along with the consent of the contracting parties they require the consent of the parents for the constitution of the bond. Monner (De matrimonio, Jena 1604, pp. 11-14, 44-69, 83) finds the justification for this in natural and civil law, as well as in canon law itself and in customs. By all these the struggle against clandestinity is conducted and imposed at too high a price: renunciation of the whole traditional doctrine, exclusion of ecclesiastical competence, exaggerated interference of parents in the marriages of their children, publicity of marriage outside the ecclesiastical sphere.

On the Catholic side too the drawbacks of clandestine marriages were noted, and it was wished to remedy them, but without touching in any way the traditional doctrine on marriage. As a remedy, greater efforts are made to ensure the publicity and solemnity of the contract, unlike the Protestants who insist by preference on the competence of parents over the marriages of their children, after having denied it to the Church. The Council of Trent concerned itself with clandestine marriages during its transfer to Bologna, and precisely in Sept. 1547, and at Trent in 1563. The measure that was to put an end to the institution of clandestinity, although intrinsically disciplinary in nature, encountered very grave difficulties because the solution of this question was seen in the light of the immutability of sacramental dogma. This difficulty, which forced the Tridentine Fathers to return as many as four times to the same decree, was championed by a small minority that insisted on the incompetence of the Church to change the essential constitutive elements of the sacrament. It seemed to this minority that the nullification of clandestine marriages amounted to denying value to consent, considered under various aspects as matter and form of the sacrament itself. No small difficulty was also found in determining the legitimate term, referring to the expression of consent: legitimate consent. The opponents of the decree Tametsi made it coincide with the spontaneous requirements, flowing from the natural capacity and the freedom to contract, sanctioned by the law of nature, while its supporters concluded from this traditional term the duty of the Church to prescribe the legal and social norms for such legitimacy.

The decree Tametsi (sess. XXIV, cap. 1: Denz-U, n. 990), which abolishes clandestine marriages, opens with affirmations of a historico-dogmatic nature. It affirms the validity of clandestine marriages contracted in the past, inasmuch as they are founded on the element of the free expression of consent between the contracting parties. This is against what had been asserted by the Reformers of the 16th century. As for clandestine marriages contracted sine consensu parentum, having affirmed, in principle and by historico-dogmatic evaluation, their validity, the decree condemns this form of contracting on account of the very bad consequences deriving from such unions. The decree then indicates the reasons that moved the Council to modify the discipline on clandestinity. These are the ease offered by clandestine marriages for breaking the sacramental bond, the possibility of effecting divorce in public form, perhaps under the shield of the Church's blessing, the state of grave sin engendered by all this in the contracting parties.

The disciplinary provisions studied and issued in the decree fit into the channel of tradition. They concern the obligation of the banns, already established in the Fourth Lateran Council, and the prescription of the ritual form of blessing for the celebration of marriage. The presence of the proper parish priest or of a duly authorized priest is also ordered, as well as the presence of at least two witnesses for the exchange of consent between the contracting parties. Contravening these norms entails the nullity of the act performed, which would remain a mere attempted marriage, inasmuch as the decree intends to render the contracting parties: «omnino inhabile... et huiusmodi contractus irritus et nullus».

It is above all to the credit of the aforementioned decree that it transformed marriage from a simple contract — requiring no determinate forms for its stipulation — into a solemn contract, and at the same time definitively made impossible the perfection of the contract through copulation. The asserted solemnity of the contract in relation to the Church, which according to the contingent opportunities of time and place regulates marriage as a contract, places the latter, as is easy to perceive, in a dynamic position and of a sui generis variability. The dependence of the origin of marriage on the law of nature is not denied, nor is the sacred, special, divine character of marriage, by which it becomes a contract more sacred than human. A way is found, however, to overcome this static position, reflecting the invariability of the law of nature itself regarding marriage, without thereby denying it totally. For the theologian, beyond the juridical fact, what matters is the manner in which the nullity of the act is brought about, on account of the necessary sacramental-theological repercussions. The manner is clearly indicated in the personal incapacity.

It is the contracting parties themselves who are rendered directly incapable of contracting; at the same time every act performed by those same persons in regard to marriage is declared and rendered null.

The dogmatic-sacramental question concerning the generic or specific determination of the constitutive elements of the Sacrament by the divine institutor remains implied and unresolved. Consequently, the question of the Church's competence over those same elements is left unresolved. It is not by chance that the decree uses the word contractus rather than consensus. The invalidation was directed directly at the contract rather than at the consent, inasmuch as the latter was considered the direct matter of the Sacrament.

At the Council the question was also raised whether the nullification of clandestinity operated directly upon the personal incapacity, and indirectly upon the nullification of the contract. It is certain that the two modes are expressed in distinct form and had their supporters throughout the conciliar debates. Between the one and the other proposed mode no particle of causality is found (as is found instead in the schema of 7 Aug.), which could determine the causative pre-eminence of one mode over the other and consequently establish which of the two modes has a direct or indirect function for the purposes of the nullification. The nullification of clandestinity has a preventive function with regard to contracting marriage. It does not seem, therefore, that one can speak of a direct nullification of the contract — which will have no way of existing — and of an indirect incapacity of the persons, who in their legal incapacity cannot contract a valid marriage. From this it follows that the nullification of the contract — a human element — entails the nullification of the Sacrament. One must, however, understand this well: this sacramental nullification does not involve in itself the Sacrament in its intangibility, according to the already known theses of sacramental theology, nor does it enter into the debated question of the Church's relative competence concerning the matter and form of the Sacraments.

The opinion is acceptable that a clandestine marriage, as a Sacrament, is nullified by the decree. But such nullification, as has been said, would be only remote and indirect, inasmuch as the contract, the necessary substratum of the Sacrament, comes to be destroyed in its juridical value. The variability concerning the Sacrament, consequently, such as may appear in the disciplinary diversity across the ages, does not formally affect it. What is involved in reality is a purely material mutability. The merit of the Council of Trent lies in this solution, which was reached after laborious sessions.

d) Clandestinity after the Council of Trent. — The decree Tametsi, with regard to clandestine marriage, nevertheless left two difficulties, which for over a century made themselves felt in the Church. First of all, clandestine marriages, by virtue of the same decree, still had the possibility of being realized in those zones where the decree Tametsi had not been published. There was no lack of particular provisions in this regard concerning mixed marriages between Catholics and non-Catholics, all of which sometimes gave rise to doubts and uncertainties about the very validity of the marriages that were contracted (cf. the declaration of Benedict XIV of 4 Nov. 1741 on clandestine marriages in Belgium and Holland, Denz-U, nos. 1452-57).

On the other hand, the decree Tametsi required that marriage be celebrated before the "proper" parish priest. It was not always easy to determine, through the domicile and quasi-domicile of the contracting parties, the "proper" parish priest. The difficulties increased for so-called vagrants, and there was no lack, when the occasion arose, of those who knew how to speculate on such a state of affairs and on such uncertainties, so that the real validity of marriage itself was threatened. Matrimonial causes of nullity ex capite clandestinitatis were frequent. The starting point was taken from the fact that the spouses did not have domicile or quasi-domicile in the parish where they had celebrated the wedding at the time of the marriage. The intention of avoiding such inconveniences and such causes gave rise to the compilation of the decree Ne temere; it was the bishops themselves who requested from the Apostolic See a greater determination in the matter.

The decree Ne temere of 2 Aug. 1907 of Pius X (who already in the previous year, 18 Jan. 1906, had expressed himself on the validity of clandestine marriages in Germany: Denz-U, 1991-94), which entered into force at Easter of 1908, if on the one hand it extended to all Catholics the law abolishing clandestine marriages, on the other hand made territorial the competence of the parish priest in validly assisting at any marriage within the ambit of his own parish.

The CIC, in can. 1094, confirms the discipline of the decree Ne temere. But it removes the exception, provided by the decree itself, in the case of marriage between a Catholic party and a non-Catholic party (where the Tridentine form is also required in ordinary cases) nisi pro aliquo particulari loco aut regione aliter a S. Sede sit statutum. The only exceptions remain those provided by the same can. 1094 and listed in can. 1098 concerning cases of necessity and danger of death, and in can. 1099, 3°, where the decisions of the S. Congregation of the Council — of 1 Feb. and 28 March 1908 — are reaffirmed, namely not to apply the aforementioned norms to Catholics of the Oriental rite, except when they contract marriage with Latins.

However, can. 85 De disciplina Sacramenti matrimonii pro Ecclesia Orientali — promulgated with the motu proprio of Pius XII on 22 Feb. 1949 — is perfectly parallel to can. 1094 of the CIC, so that the form of the clandestine contract cannot subsist. The competence of the parish priest and of the hierarch, according to can. 86 § 1, no. 2, is made territorial as already for the Latins by the decree Ne temere.

Salvatore Cassisa

4. Presumed marriage

A figure that has disappeared from the current canonical order, presumed marriage, in the law of the Decretals, was that in which — according to a definition of Giovanni Andrea (ad c. 32, X, IV, 1 n. 6) — even lacking the true consent on the part of the contracting parties, these were nonetheless considered as spouses and compelled to cohabit, as if they had really consented, their consent being presumed from certain probable conjectures. In other words, it was a marriage whose existence was presumed objectively by law on the basis of a determinate fact, which was interpreted as implicitly containing matrimonial consent; more briefly, a marriage that held by presumption of law.

a) The typical, and most commonly recalled, example of presumed marriage was that which occurred when, after valid betrothal (v.), sexual union took place between the betrothed. In that case, by the mere fact of the copula carnalis between the betrothed, the betrothal was transformed into a true marriage, without the need for any manifestation of consent, and without any contrary will being able to oppose this result.

But other hypotheses of presumed marriage were not lacking, and such were those in which the spouses, after having contracted marriage under a condition de futuro, had carnal relations before the condition was purified, that is, fulfilled or failed; or that in which, an invalid marriage having been celebrated by those below the age of puberty because of the impediment of age, the parties, after reaching puberty, ratified it by copula or by other signs, such as embraces, etc. And in general even marriages null by another impediment were presumed validated if copula intervened after the cessation of the impediment, or, if null by defect of consent, were presumed, following the copula, validated by renewal of the consent itself.

This institution is naturally comprehensible only by reference to the absence, in the ancient matrimonial discipline, of the necessity of determinate solemn forms for a valid constitution of the bond, for whose existence the sole consent of the parties was necessary and sufficient. Granted therefore that for the validity of marriage any form whatever of manifestation of the agreement of the contracting parties sufficed, so that even clandestine marriages, however reproved and condemned, were held valid, it is explained how a doctrine could arise which, in order to affirm the subsistence of a valid marriage, held it possible to supply for the lack of an express manifestation of consent with a presumption of its existence drawn by conjecture from determinate facts, among which the concubitus of the spouses was decisive above all.

The presumption was iuris et de iure (and for some doctors, such as Panormitanus, it was outright a fictio iuris); therefore no proof to the contrary was admitted (licet praesumptum matrimonium videatur, contra praesumptionem tamen huiusmodi non est probatio admittenda; c. 30, X, IV, 1); indeed, even if the parties, before performing the copula, had declared that they had no intention whatever of contracting marriage in that way, according to the dominant opinion it would not have been possible to avoid the marriage itself being held legally contracted. And the reason why it was taught that not even the preventive proof constituted by the protestatio could be admitted against the presumption (just as the parties were not admitted post factum to prove that they had performed the copula for mere fornication, that is, with a fornicatory and not a marital mind), was essentially that proofs of such a kind would have violated the principle whereby nemo auditur suam turpitudinem allegans, while by the presumption itself the copula was deprived of the sinful character that it would otherwise necessarily have assumed: ne dicamus, as Covarrubias observed, copulam illam carnalem esse mortale peccatum, quod dubio procul dicendum esset, nisi in sponsum et sponsam animarum affectio coniugalis praesenti consensu daretur: nec praesumendum delictum est (I, 120). It was always difficult, however, to explain how the absoluteness of the presumption and the refusal to recognize any value in any proof, even a pre-constituted one, of the lack of consent, could be reconciled with the uncontested principle that the essential and irreplaceable element for the formation of marriage is in every case a true consent, indeed a consent de praesenti (that is, one that contains the will to give life to the marriage forthwith) and not a simple consent de futuro (that is, the will to conclude the marriage in the future).

b) According to some authors (Esmein) the institution — at least in its typical application, whereby betrothal was forthwith transformed into marriage by effect of the copula between the betrothed — would be explained historically as a survival of Gratian's theory: Coniugium desponsatione initiatur comnixione perficitur. So true is this that the decretalists held that when the copula carnalis preceded the sponsalia de futuro, that is, the two factors succeeded one another in the reverse order to that normally envisaged for the perfection of presumed marriage, this did not take place. This explanation, however, seems extraneous to the motives adduced by the traditional doctrine. Be that as it may, among the reasons that practically justified the institution, and counseled its maintenance even after the purely consensual conception of marriage had definitively overcome Gratian's conception of the copulatheory, was that, of profound morality, which aimed at preventing one of the betrothed from being able to abuse the other with impunity.

c) There always subsisted, however, a fundamental difficulty, which from the outset had given rise to quite grave inconveniences. The presumption that gave life to presumed marriage, especially because of its absolute character, which excluded any proof to the contrary even if in reality the parties, in performing the copula, had had no marital mind, held only for the external forum; but it could evidently have no efficacy in the internal forum, where fictions or presumptions de iure are not admissible concerning the validity or otherwise of a Sacrament or the licitness of an act, or the evaluation in general of the intentional element of the subject. Therefore it was not possible, in cases in which the true matrimonial consent was really lacking, to recognize value in the internal forum to the presumption de iure and consequently to hold the marriage equally existing, in the face of the fundamental teaching of the Church that matrimonial consent cannot be supplied by any human power and is therefore indispensable to the valid constitution of the sacramental bond. Hence one and the same marriage could at the same time be considered valid in the external forum and null in the internal one, with the consequence that one who — having performed the copula without a marital mind — knew in conscience that he was not a true spouse, could not cohabit with the other party, even if, given the absolute presumption operating in the external forum, the ecclesiastical judge had compelled him to do so under penalty of censures. The conflict then became still more grave and irremediable when one of the parties bound by a presumed marriage without true consent subsequently contracted a true marriage with another person. In that case there was a first marriage valid in the external forum but null in the internal forum, and a second marriage valid in the internal forum and null in the external one.

Some canonists, even of a late period, such as Barbosa, in order to eliminate this anomaly arising from the conflict between the two fora, maintained that from a presumed M. [marriage], even if consent were in reality lacking, a diriment impediment could arise, which would therefore have rendered the second M. null also in the internal forum. But the theory was rejected by the official doctrine of the Church, which, until the abolition of the institution, applied integrally the distinction between the internal and external forum (S.C.P.F. 17 Jan. 1821, Collectanea, I, 1907, 438). Therefore a presumed M., even if contracted with a fornicatory intent, had to be held valid in the external forum, and the judge could oblige the parties to treat each other as spouses, forbidding them other marriages, while in the internal forum the confessor had to enjoin the parties to suffer rather the penalty of excommunication inflicted in the external forum than to persevere in a cohabitation that in conscience was sinful, and to adhere to the second M., the true one, contracted affectu maritali. A principle already affirmed by Innocent III (1209), for the case of certain knowledge in the internal forum of an impediment to an M. held valid in the external one: Debet potius excommunicationis sententiam humiliter sustinere quam per carnale commercium peccatum operiri mortale (c. 44, X, de sent. excomm., V, 39).

d) The presumed M. which, as said above, could juridically subsist — in the typical hypothesis of betrothal followed by copula — insofar as a solemn form of celebration was not prescribed, began to disappear in the countries where the decree Tametsi of the Council of Trent (sess. XXIV, de ref. matr. c. 1) had been published, by effect of the norms of that decree which sanctioned the nullity of clandestine M., imposing a substantial form for the validity of M. It therefore persisted in the non-Tridentine countries, such as England, Scotland, Denmark, Sweden, in part of Germany and of Alsace, as well as in all the mission countries. There remained moreover still in force everywhere the other species of presumed M., different from the typical one mentioned above, namely that of the conditional M. followed by copula, and the M. invalid through occult nullity, when it was followed by copula after the cessation of the impediment.

The total disappearance of the institution from canon law occurred, as regards betrothal followed by copula, with the decree of Leo XIII: Consensus mutum of 13 Feb. 1892 (ASS, 24 [1891-92], p. 441), which declared abolished everywhere, even for causes anterior to the promulgation of the decree, the presumption: copula sponsalibus superveniens non amplius ex iuris praesumptione coniugalis contractus censentur, nec pro legitimo matrimonio agnoscatur seu declaretur. The decree made no mention of the other hypotheses of presumed M., in which the copula had the function of validating the consent or of revoking the condition previously imposed, but an authoritative part of the doctrine (Gasparri) held that these too should be considered abrogated. In any case, with the codification, the figure of the presumed M. has totally disappeared from the matrimonial law of the Church, as generally every presumption iuris et de iure in the matter. Only for the case of death of one or both spouses before the M. is impugned, can. 1972 provides that the M. is presumed valid, excluding every proof to the contrary unless an incidental question arises; with which last reservation it is evident that in practice the presumption is emptied of every effective character of absoluteness. There remain effective instead the other presumptions iuris tantum (cann. 1014, 1070 § 2, 1082 § 2, 1086 § 1, 1093) which, respecting the consensual doctrine on which the matrimonial system of the Church hinges, provide at the same time to guarantee in the widest manner the firmness of the bond.

e) In civil legislations there are sometimes found norms that can be brought close to the ancient canonical discipline of the presumed M. Thus it was in the Swedish law of 1734, which remained in force until 1920, and for which the maternity of the betrothed woman meant, should the betrothed persist in his refusal to marry her, that the woman was declared his legitimate wife with the relative patrimonial rights. It has also been noted (Ciprotti) how the norms now common in current civil laws, which establish terms of prescription or of forfeiture for the exercise of actions of impugnment of M., often amount to the admission of cases of presumed M. And indeed in the Italian Civil Code there is no lack of provisions that can confirm this impression (cf. lib. 1, tit. VI, sec. 6), at least in reference to the hypotheses of the conditional M. or of the M. null through invalid consent subsequently validated by the copula (it is obvious that no parallelism could instead be established with the other, and principal, canonical hypothesis of betrothal followed by concubitus). But these are approximations of always extremely relative value and difficult to reduce to a single conceptual and logical scheme, given the fundamental diversity of the principles that inform respectively the civil and the canonical system with regard to the evaluation of the consensual element as an essential factor in the constitution of the matrimonial bond.

IV. LAW AND MORAL THEOLOGY.

morganatic. - VI. Putative M. - VII. M. ratified and not consummated. - VIII. Use of M.

I. CANON LAW

1. Notion

Marriage can be considered juridically, as has been noted in the dogmatic treatment, under two different aspects: as a transient act or as a permanent state. The first, called matrimonium in fieri, is the constitutive act of the conjugal society, that is, the marriage contract. The second, called matrimonium in facto esse, is the conjugal society once constituted, that is, the marriage relationship. In other words, the matrimonium in fieri is the initial moment of the conjugal state or matrimonium in facto esse.

The juridical discipline of marriage could therefore theoretically be organized in relation to these two moments: linking to the first everything concerning the requirements of capacity and form necessary for the constitution of a valid marriage transaction, that is, of the contract-Sacrament, and to the second everything concerning the regime of the bond, its effects in the relations between the spouses and between these and their offspring, separation and dissolution. In the canonical system, however, it should be noted that juridical interest is predominantly, if not almost exclusively, concentrated on the first moment, or constitutive act. And this both because of the permanent and definitive efficacy attributed to the initial consent of the spouses and the consequent proscription of divorce, and because, while the Church affirms its exclusive competence and jurisdiction over what concerns the formation of the bond between Christians insofar as this is inseparably contract-Sacrament, once the bond is constituted it considers its regime essentially under the theological-moral profile, of the internal forum; and it leaves to the State the task of regulating its civil effects, sometimes permitting, as in the Italian Concordat, that it regulate aspects that are not purely civil as well, such as that of separation.

2. Dogmatic foundations

For a clear understanding of the principles of canon law in this matter, one must always keep in mind the dogmatic foundations on which the institution of marriage is based according to Catholic doctrine; namely, that marriage was instituted and restored by God and that the contract has been elevated to the dignity of a Sacrament.

To marriage thus considered three great goods are connected, which in a rigorous sense also constitute three heads of obligations: proles, fides, sacramentum. The bonum prolis consists in the procreation and Christian education of offspring; the bonum fidei in the fidelity that each of the spouses owes to the other in the fulfillment of the marriage contract, that is, in the exclusive right and reciprocal obligation of each of them ad officia coniugalia toward the other; it further requires true love and mutual help, and a hierarchical family order (encyclical Casti connubii, 1); the bonum sacramenti in the indissolubility of the marriage bond and in the communion of life; absolute indissolubility for a ratified and consummated marriage, whereas it may exceptionally cease for marriages that are ratified but not yet consummated. This doctrine of the bona matrimonii is of fundamental importance from the juridical aspect, as will be seen further on, especially for the determination of the validity of consent.

3. Requirements

For the constitution of a valid marriage relationship (which may be, but not necessarily, preceded by the contract of promise of marriage; v. SPONSALI) the following requirements are needed: capacity; consent or matrimonial will; the legitimate form of the manifestation of consent, that is, of the celebration. These requirements, analogous in their generic formulation to those of every other contract, must however be understood in relation to the very peculiar nature and juridical discipline of the institution of marriage. They must therefore not be evaluated by the standard of other juridical transactions, but according to the special principles laid down for this matter.

4. Matrimonial capacity and impediments

This observation holds above all in regard to the requirement of capacity. The general principle is that all may contract marriage when they are not forbidden by law (can. 1035), that is, when the peculiar obstacles foreseen by law in opposition to the valid existence of marriage do not exist. Therefore matrimonial capacity is not to be assessed on the basis of ordinary juridical capacity, but in relation to the existence or non-existence of such obstacles, called impediments, or conditions relative to the persons of the contracting parties. In the law prior to the CIC, under the name of impediment were included both the causes that constituted obstacles to marriage depending on the personal condition of the contracting parties (ex parte personae), and those that constituted grounds for invalidation of marriage depending on defects of the will (ex parte consensus) or of the form of celebration (ex parte formae). Their list was customarily expressed in mnemonic verses, of which here is one of the versions most used after the Council of Trent: « Error, conditio, votum, cognatio, crimen, / Cultus disparitas, vis, ordo, ligamen, honestas, / Aetas, affinis, si clandestinus et impos, / Raptave sit mulier loco nec reddita tuto: / Haec facienda vetant connubia, facta retractant ». To these impediments, called diriment, because they cause nullity of marriage, is added the list of merely impedient impediments, that is, those that do not render the marriage null but only illicit: « Ecclesiae vetitum; nec non tempus feriatum / atque catechismus, sponsalia, iungito votum, / Impedient fieri, permittunt facta teneri », later reduced to those contained in the little verse « sacratum tempus, vetitum, sponsalia, votum ».

In the system of the CIC, on the other hand, although the word impediment is still occasionally used in a broad sense, more rationally whatever pertains to the validity or otherwise of consent or of the form of celebration is considered distinctly from the circumstances inherent in the persons of the contracting parties and which may limit matrimonial capacity. Only the latter are now called, in the proper sense, impediments, and from their examination are deduced, by a contrario reasoning, the requirements of capacity needed for the validity of marriage.

Impediments are customarily classified under various points of view (cans. 1036-42), but of such distinctions two above all have fundamental importance here. The first and essential is that already mentioned, between impedient impediments (which induce a grave prohibition against contracting marriage and therefore render it illicit, but not invalid if the marriage has nonetheless been celebrated), and diriment impediments (which not only forbid contracting marriage, but prevent its valid celebration, and if the marriage has nonetheless been contracted, produce its invalidity: can. 1036). Another distinction is that between impediments of divine law and impediments of human or ecclesiastical law, according to whether they are established by divine law (natural or positive), or by laws of the Church. This distinction is also of capital importance because as a rule impediments of human or ecclesiastical law can be dispensed, but not those of divine law. Only the supreme authority of the Church, that is, the Pontiff, has the right to declare authentically when divine law impedes or diriments marriage (can. 1038). From impediments must be distinguished individual prohibitions, which can be established for a determined marriage, temporarily and for a just cause, by the local Ordinaries (can. 1039 § 1). Their effect is simply prohibitive, and therefore renders the marriage illicit but not invalid. Only the Holy See can add to such a prohibition the irritant clause, that is, the sanction of invalidity, in the case of non-observance of the prohibition itself (can. 1039 § 2).

The impedient impediments, more numerous in ancient law and in the law prior to Trent, are reduced in the current system to two: 1) the simple vow of virginity, of perfect chastity, of not marrying, of receiving Holy Orders and of embracing the religious state (v. VOTO); 2) mixed religion (v.). To these two a third impediment may eventually be added, legal cognation (v. COGNAZIONE).

In current law the diriment impediments number twelve of general law, plus a thirteenth of particular law, for those places where it is held to be such by civil law. They are age (v.); impotence (v.); disparity of worship (v.); a previous M. (v. LIGAMEN); Holy Orders (v. ORDINE); solemn religious profession and that of professed religious of simple vows to which, by indult of the Holy See, the power of invalidating marriage was added (can. 132 § 2); abduction (v.); crime, that is, qualified adultery (v. CRIMINE); consanguinity (v.); affinity (v.); public propriety (v.); legal and spiritual cognation (v. COGNAZIONE, I and II; see also IMPEDIMENTI, II, 1).

For those among the impediments that are dispensable, those competent to dispense are the Supreme Pontiff and anyone who has been granted the faculty by him either by common law or by special indult of the Holy See (can. 1040). The Pontiff exercises his power to dispense either personally (in the case of sovereigns or royal princes) or through organs of the Roman Curia (Congregation for the Discipline of the Sacraments; Sacred Penitentiary; Congregation of the Holy Office; Congregation for the Eastern Church), depending on whether it is a matter of the internal or the external forum, and depending on the impediments (v. cann. 247 § 3; 249 § 1; 251 § 3; 257 § 3; 259 § 1). Bishops may grant dispensations from matrimonial impediments either by ordinary power, that is, attributed to them by common law (as in the case of danger of death, or of an impediment discovered on the eve of the marriage; v. cann. 1043-45) or by delegated power, that is, attributed to them by special indult of the Holy See. Analogous powers belong also to the parish priest, to the priest who assists at the M. and to the confessor (but to the latter only for the internal forum in the act of sacramental confession), in cases in which recourse to the local Ordinary is not possible (cann. 1044, 1045 § 3; v. IMPEDIMENTI, II, 1).

5. Matrimonial consent

The second of the requirements demanded for the existence of a valid M., namely the consent or matrimonial will on the part of the contracting parties, is defined as the "act of the will by which each of the two parties confers and receives the right over the body, perpetual and exclusive, in order to the acts of themselves apt for the generation of offspring" (can. 1081 § 2). Upon this consensual element the entire canonical institution of marriage is built with rigorous coherence. With the union of the consents the M. becomes perfect, without consummation being required. The consent of the contracting parties, which cannot be supplied by any human power (can. 1081 § 1), must be given by persons who have the capacity for it, that is, who, besides not being in any of the above-seen conditions constituting an impediment, are endowed with sufficient capacity of understanding and willing, and are therefore not deprived of reason, whether for transitory causes (drunkenness, hypnotism, somnambulism) or for permanent causes (dementia, paranoia, etc.). It is obvious that, for the validity of the consent, the contracting parties must not be ignorant at least that the M. is a permanent society between man and woman for the procreation of children (but such ignorance after puberty is not presumed).

The contract is invalid if one or both parties exclude by a positive act of the will, even merely internal, the M. itself, or every right to the conjugal act or some essential property of the M. (can. 1086 § 2). However, a precise intention is required, that is, as the CIC expressly says, a positive act of the will excluding some essential property of the Sacrament, and an accessory or secondary thought in the aforesaid sense is not sufficient to determine invalidity, nor is the simple desire nor the intention not to fulfill the obligations assumed.

The validity of the M. can moreover be impaired, under the aspect of consent, for other causes dependent on defects in the process of formation or determination of the will, or on discordances between the manifested will and the internal will. In the description and evaluation of such elements, however, matrimonial discipline follows peculiar criteria that differentiate it clearly from that relating to other contracts, to whose concepts therefore one cannot ordinarily, in this matter, make sure reference. Thus, in regard to the defect of consent through error (v.), the CIC, besides the typical case of error about the identity of the person (where there is rather an absolute defect of consent, through discordance between the manifestation of will and the real will), considers as affecting the validity of the M. only error about a quality that redounds into error about the person (such would be the quality that serves to individuate the person), or that by which a free person contracts M. with a slave woman, believing her free (can. 1085). Error of law (error iuris) about the unity or the indissolubility of the M., or about its sacramental dignity, does not invalidate the consent, even if it gives cause to the contract (can. 1084), but only that consisting in ignorance of the essence of the M. (v. can. 1052).

Consent can also be vitiated by violence or fear (v.) that has influenced the determination of the matrimonial will, provided that certain extremes concur. The M. contracted through violence or grave fear (ab vim vel metum gravem) inflicted from outside and unjustly (ab extrinseco et iniuste) and to free oneself from which someone is constrained to choose the M. is invalid (can. 1087). Thus the fear that lacks gravity is not influential, such as the simple reverential fear toward parents (unless it is a matter of qualified reverential fear, that is, threats of grave evils intervene, or maltreatment or reproaches, so as to make life in the paternal home impossible); thus too the fear that does not come from outside, such as that of supernatural punishments, etc.; thus finally the fear that, although grave, is inflicted for a just cause, for example, to constrain the seducer to marry the seduced woman, provided that the threat does not exceed measure and is therefore unjust quoad modum.

The law establishes as a general rule that the consent or interior will (internus animi consensus) is always presumed to conform to the words or signs used in the celebration of the M. (can. 1086 § 1). Such a presumption, however, is iuris tantum, and therefore can be overcome by contrary proof by which it is demonstrated that the real will was discordant from that manifested, which renders the M. invalid. Such is the case of simulation, which occurs when the contracting party externally feigns to wish to contract, expressing seriously and in ritual manner a consent, which instead he does not have internally. Whether in the case of bilateral simulation, that is, when the parties in agreement among themselves feign to contract M. in order instead to achieve another purpose (for example, to obtain a change of citizenship, etc.), or in the case of unilateral simulation, or mental reservation, when only one of the parties thus contracts, deceiving the other party who is unaware, the M. is invalid. The same effects as simulation are produced by jest (iocus), although this is a hypothesis today very difficult to occur.

The function of the central element attributed to consent in Christian marriage means that canon law also takes into consideration the cases in which it is given with the addition of some modality or accessory determination on the part of the contracting parties, who intend to make the validity or the subsistence, or the permanence of the bond, depend upon it. Absolutely excluded are conditions of this last kind, that is, resolutory conditions (because they are contrary to the principle of indissolubility); but it is admitted, within certain limits, that consent may be conditioned, with suspensive effect on the marriage, or with the effect of making its subsistence or validity depend on the existence or non-existence of determinate circumstances, generically called conditions. These, however, include both true suspensive conditions (that is, the determination of a future and uncertain event [v. CONDIZIONE]) and so-called improper conditions, consisting in the determination of past or present facts of whose existence the parties are uncertain, or by the addition to the consent, as indissolubly connected to it, of agreements concerning the future.

Their effects (always when the condition attached has not subsequently been revoked) are notably different. The CIC distinguishes conditions de futuro and de praeterito vel de praesenti. Proper conditions, or those relating to lawful future facts, suspend the validity of the M. (can. 1092, no. 3). While the condition is pending, married life is not permitted; if the condition is fulfilled, the M. is valid and all its effects immediately follow, without need to renew the consent; if the condition is not fulfilled, the M. is null. If, however, it concerns necessary future facts (e.g., if the sun rises tomorrow), or impossible ones (e.g., if you touch the sky with your finger), or base ones but not contrary to the substance of the M. (e.g., if you kill), the condition is considered as not attached (can. 1092, no. 1). If, on the other hand, it concerns conditions contrary to the substance of the M., they render it invalid (can. 1092, no. 2). Such are those that exclude the ius in corpus, or those contrary or irreconcilable with the three bona of the M.

As for improper conditions de praeterito vel de praesenti, the M. will be valid or not, depending on whether the fact made the condition exists or not (can. 1092, no. 4). In this way, personal qualities of the other party may be assumed as conditions, whose existence or non-existence would otherwise be irrelevant to determining the nullity of the M. on the ground of error, if not expressly made a condition.

6. The celebration of the M

The third requirement for the existence of a valid M., the celebration, did not have a uniform discipline until a relatively recent era. Until the Council of Trent there was no general norm prescribing a determined essential form for the validity of the M. It was established by the famous decree Tametsi (sess. XXIV, c. I, de reform. matr.), in which, in order to eliminate the inconveniences that had occurred in the past, it was established that the M. (called clandestine [v. above]) not contracted before one's own parish priest or another priest, with the license of this one or of the Ordinary, and before at least two witnesses, was not only illicit but also invalid. The failure to promulgate the Tridentine decree in many regions meant that it was not applicable everywhere; hence this point of canonical matrimonial law remained regulated differently in various countries depending on whether or not the decree had been published there. This inequality ceased only at the beginning of this century, with the decree of 2 Aug. 1907, Ne temere, of Pius X, by which the form established by the Council of Trent was extended to all Catholics and also to M. between Catholics and non-Catholics. The CIC accepted almost integrally the norms of the decree Ne temere.

Before the M. is celebrated, it must be established that nothing stands in the way of its valid and licit celebration (can. 1019 § 1). To this end (except in the case of danger of death, can. 1019 § 2), the observance of certain preliminary forms is prescribed: the investigations (v.) or prematrimonial process and the banns (v.). Once these formalities have been fulfilled without any impediment appearing to exist, the celebration may proceed in the ordinary form. This consists in the express manifestation of consent before the parish priest or the Ordinary of the place or a priest delegated by one of these and in the presence of two witnesses. For the determination of the competence to assist validly and licitly at the M. on the part of the parish priest or the Ordinary (whose juridical figure is properly that of qualified witness of the M., the ministers being, as is known, the spouses) the CIC lays down various norms (cans. 1094-1097). As a general rule the M. must be celebrated before the parish priest of the bride unless there is just cause to the contrary (can. 1097 § 2). No particular requirements are demanded for the witnesses; it is only necessary that they have the use of reason and be in a position to testify to the giving of consent. The contracting parties must be present either personally or through a proxy (cans. 1088 § 1, 1089, 1091); the use of an interpreter is permitted (cans. 1090, 1091).

Besides the ordinary form of celebration, two extraordinary forms are admitted in exceptional cases: a) the M. before the witnesses only, which can occur in danger of death (M. in extremis), when it is not possible without grave inconvenience to have the presence of the parish priest or the bishop or a delegate of theirs, or even outside danger of death, when likewise it is not possible to have such presence and it is foreseen that the absence of one of the aforesaid ecclesiastics will last for a month (can. 1098); b) the M. of conscience (v. below), also called secret or occult M., which is contracted without banns, in secret, before one's own parish priest or another priest delegated by the Ordinary and two witnesses (can. 1104). It must be authorized by the Ordinary, who cannot permit it except for a most grave cause, and it entails the obligation of keeping the secret on the part of the assisting priest, the witnesses, the Ordinary and his successors, and also of the spouse, if the other does not consent to the disclosure (cans. 1104, 1105). The obligation of secrecy on the part of the bishop ceases if scandal or injury to the sanctity of the M. derives from it, or if the parents fail in their obligations toward the children (can. 1106).

7. Effects of the M. Separation. Dissolution

From a valid M. arise particular juridical effects, both in the relations of the spouses and in that of the offspring. The former are: the creation of a bond by its nature perpetual and exclusive (can. 1110); the respective right and duty to the conjugal debt (can. 1111); the participation, unless otherwise established by special law, of the woman in the status of the husband (can. 1112); the most grave obligation of providing for the education of the offspring, whether religious or moral, whether physical or civil (can. 1113). To these effects, called canonical, are also added those purely civil (mere civiles), which is to say those that are not, like the preceding, essential to the M. and inevitably connected to it (e.g., those inherent in dowry relations, etc.), and which are regulated by civil law. With respect to the offspring the M. has moreover the effect of determining the legitimacy of the children conceived or born in it, unless solemn religious profession or sacred Orders forbade the parents the use of the M. previously contracted (can. 1114; v. PROLE).

A valid M. ratified and consummated cannot be dissolved by any human power or for any cause, apart from death (can. 1118). The M. not consummated between baptized persons or between a baptized person and an unbeliever is dissolved ipso iure by the solemn religious profession of one of the spouses and, outside this case, can also be dissolved by dispensation granted by the Holy See for a just cause, and upon the request of one or both parties (can. 1119). As for the legitimate M. of the unbaptized, although it too is considered by the Church as rigorously indissoluble, it can by way of exception be dissolved following the Baptism of one of the spouses, in favor of the faith, by virtue of the Pauline Privilege (v.).

Divorce, as dissolution of marriage, is therefore not admitted by canon law (v. INDISSOLUBILITY). Spouses may instead, for just reasons, while the bond always remains firm, be freed from the obligation of the communion of life that marriage imposes, by means of the suspension of marital cohabitation or separation (separatio; sometimes also called, in the sources and in writers, divortium). Canon law regulates (cann. 1129-32) the cases and the ways in which separation may be granted, which is not left to the simple discretion of the parties, but must always be justified by a just cause (v. CONIUGI, diritti e doveri dei).

8. The null marriage: convalidation and declaration of nullity

When a case of nullity of marriage occurs, in which either the parties do not wish to obtain, or there can be no place for, either simple convalidation or the other more favorable form of convalidation constituted by radical sanation (v. CONVALIDAZIONE, II), the guiltless parties, as well as the ecclesiastical authority in the case of impediments that are public by their nature, may request that the nullity be declared judicially.

Although in the canonical system there is no place for the distinction, which is made in civil-law doctrine, between a non-existent marriage and a merely annullable marriage, and therefore the lack of any one of the requisites necessary for the valid existence of marriage always produces its absolute nullity (the expressions invalid, null, void marriage are to be understood in the CIC as substantially equivalent), nevertheless the parties are not permitted, even in the subjective certainty of the nullity of the previous marriage, to contract another before such nullity is legitimately and certainly established (can. 1969 § 2). To this end a pronouncement of the ecclesiastical judge is necessary, who alone is competent to hear cases relating to marriage between baptized persons, Catholics and non-Catholics, or in which even only one of the parties is baptized (can. 1960; v. below: M. rato non consumato and Nullità).

II. ITALIAN CONCORDAT LAW

1. The concordatory recognition of canonical marriage

The juridical relevance of canonical marriage in the state order — which had already ceased with the institution of civil marriage, which had reduced the former to a purely religious act devoid of juridical effect — found ample recognition through art. 34 of the Lateran Concordat. With this provision (subsequently supplemented, respectively, on the part of the Italian State by an implementing law dated 27 May 1929, no. 847, and on the part of the Holy See by an instruction of the Sacred Congregation of the Discipline of the Sacraments to Ordinaries dated 1 July 1929), a complex juridical system was brought into being which, while recognizing in principle civil effect for the canonical matrimonial regulation for those who voluntarily submit to it through Catholic religious celebration, lays down particular norms so that such juridical effect may be attained, both as regards the conditions for the constitution and validity of the bond, and as regards the pronouncements of nullity or of dissolution of the bond itself.

The fundamental declaration expressed in art. 34, that the Italian State "recognizes to the sacrament of marriage, as regulated by canon law, its civil effects" (later replaced in the implementing law by the more restrictive mention of marriage "celebrated before a minister of the Catholic cult" producing, "from the day of transcription, the same effects as civil marriage"), has brought about in the first place the consequence that civil marriage ceased to be the only form of marriage having juridical effect before the State, as it was in the system of the Code of 1865, while nevertheless continuing to exist as the ordinary form of non-confessional celebration. A form which therefore remains still open, from the merely legal aspect, to anyone who wishes to adopt it, but which for Catholics is severely prohibited, since they are gravely obliged to celebrate religious marriage, and exclusively this, so that "should they dare to contract civilly they will be treated as public sinners" (art. 1, instruction of 1 July 1929 of the Sacred Congregation of the Discipline of the Sacraments).

Another fundamental consequence is that, although Catholic religious marriage and civil marriage are declared equated as to civil effects, there is nevertheless a great difference between the two, since the former is regulated by canon law and the latter only by the Civil Code, both as regards the requirements for the formation and validity of the bond, and as regards the competence to deal with controversies relating to its nullity or dissolution, which is devolved to the organs of the Church for canonical marriages, while that of the state organs remains firm for civil ones. Since then the State, taking no interest in the possible celebration of merely religious marriages, does not in any case admit the existence of more than one marriage having civil effects between the same subjects, or between one of them and a third person, whoever is already united by civil marriage may not contract religious marriage with civil effects with the same or with another person. The Church, moreover, to obviate the possibility that one who has contracted only religiously may then contract another civil marriage, does not as a rule consent that religious marriage be celebrated without civil effects.

2. Transcription: juridical nature, requirements, forms

In order that Catholic religious marriage have civil effects, it is necessary that it be transcribed in the registers of the civil status. This transcription, says the ministerial report on the implementing law, "is not a simple probative registration, but constitutes the essential act for the attribution of civil effects, since in the absence of transcription the canonical marriage would remain purely a religious act and it would be of no avail to prove its celebration"; however, once effected, the transcription retroacts to the moment of celebration. It must therefore be considered as the formality to whose fulfillment the law subordinates the production of the civil juridical effects of canonical marriage; it functions not as an autonomous act but as a condicio iuris, upon the occurrence of which the canonical marriage produces, from its celebration, the very effects of civil marriage.

The law, while leaving, in conformity with art. 34 of the Concordat, the requirements for the existence and validity of this religious marriage to be regulated by canon law and subject to the exclusive appraisal of the ecclesiastical authority, nevertheless establishes norms whose observance is indispensable in order that transcription may be arrived at. Therefore, in order that a canonical marriage may be validly transcribed, or may, if in any case transcribed, attain and maintain the civil effects of transcription, it is required: a) that it have been celebrated in the presence of a minister of the Catholic cult (but on the absolute necessity of this requirement and therefore on the non-transcribability of marriage contracted coram solis testibus, there is discussion); b) that one of the three following cases not occur: 1) that even only one of the persons united in marriage be bound by another marriage valid for civil effects; 2) that the persons united in marriage be already bound to each other by a marriage valid for civil effects; 3) that the marriage have been contracted by a person interdicted for infirmity of mind. Once these conditions are satisfied, the religious marriage must be transcribed, independently of the existence or otherwise of the other conditions of existence or validity provided by law for civil marriages, on which therefore all inquiry remains precluded. Naturally there is also excluded, at the stage of transcription, all inquiry into the existence or otherwise of impediments or of other causes of canonical nullity. This latter ascertainment belongs in truth to the competent religious authority, which must proceed to it as a rule before the celebration. Since art. 34 requires that immediately after the celebration the parish priest illustrate to the spouses the civil effects of marriage by reading the articles of the Civil Code relating to the duties of spouses, it has been asked whether here too it is a matter of a condition sine qua non for transcription; but it does not seem that an affirmative answer should be given, unless, in some particular case, the absence of such reading proves to be determined by the express intention of excluding the civil effects of marriage.

In relation to art. 34 of the Concordat, which provides that the publications of marriage be made both in the parish church and in the town hall, the implementing law (arts. 6-7) has laid down in this regard various norms for the request and execution of such publications, the observance of which, and the consequent issuance by the civil status officer of a certificate attesting that nothing appears to him to stand in the way of the celebration, constitutes the normal preliminary curriculum to be followed for the celebration of a religious marriage destined to be transcribed, and which assures a priori its transcription within twenty-four hours of the communication of the act of marriage to the civil status officer.

3. Late transcription

If however this normal procedure has not been followed, transcription may nevertheless be obtained, but subject to prior ascertainment (for which the law lays down specific norms) that one of the three circumstances recalled above does not exist, whose absence constitutes an indispensable condition for a valid transcription (art. 12).

The transmission of the act of religious marriage to the civil status officer for transcription is, according to the Instru-

tion of the Sacred Congregation of the Sacraments, is as a rule obligatory, and the parish priest must proceed with it ex officio within five days, even independently of the will of the contracting parties, save for certain exceptions permitted by the Church. If, however, even apart from such permitted exceptions, the transcription has been omitted for any other reason whatsoever, the law allows that it may be carried out subsequently at any time, and not only at the request of the parties, but of anyone having an interest therein. This is always provided that the conditions established by law existed at the time of the celebration of the marriage, and have not subsequently ceased to exist. Moreover, if the transcription is requested after the five days from the celebration have elapsed, it does not prejudice the rights legitimately acquired by third parties (art. 14). This late transcription may also be requested in the case where the religious marriage had not been transcribed because it was contracted by a person under interdiction for mental infirmity, if there has been cohabitation for one month after the interdiction was revoked (art. 14, para. 1; cf. art. 119 of the Civil Code).

4. Annulment of the transcription and nullity of the marriage

The transcription of the marriage, once it has taken place, may be challenged on one of the grounds mentioned in art. 12 of the law, that is, the three well-known circumstances that peremptorily preclude its validity: a previous civilly valid marriage with a third person; a civil marriage between the same parties; interdiction for mental infirmity (except in the case of cohabitation for one month after the revocation of the interdiction). To such challenges there apply (art. 16) the provisions of the Civil Code, which determine who are the persons entitled to act for the challenge of a civil marriage, and who may therefore also bring the action to challenge the transcription of the religious marriage, in order to obtain its annulment. A lively debate has been conducted concerning the possibility of obtaining the annulment of the transcription also on grounds other than the three mentioned, and in particular for interdiction declared after the celebration and transcription of the marriage, or for the so-called natural incapacity provided for by art. 120 of the Civil Code, that is, the incapacity to understand or to will on the part of one of the spouses, even though not interdicted at the time of the marriage. The affirmative thesis (which in fact could be charged, among other things, with opening the way to easy frauds against the principle of the indissolubility of marriage, especially if by means of pronouncements of foreign tribunals) was rightly rejected by the Court of Cassation in joint sessions. In effect, the prohibitions against proceeding to transcription and the corresponding grounds of annulment admitted by the matrimonial law in art. 12 constitute derogations from the general principle laid down by art. 34 of the Concordat, which recognizes civil effects for canonical marriage; derogations that cannot be extended to hypotheses other than those expressly provided for by law, and which are in themselves characterized by the fact that each of them essentially presupposes the already established pre-existence of a determinate juridical status (civil marriage or declaration of interdiction) held to be incompatible with a transcription destined to give civil effects to a bond that the law could not admit. On the other hand, mental infirmity constitutes in itself a defect of consent that falls among the grounds of nullity of canonical marriage, over which the ecclesiastical tribunals are exclusively competent.

Independently of the existence or otherwise of grounds that render the transcription invalid because it was made contrary to the norms of the civil law regulating the institution, it may happen that the religious marriage, after its transcription, is declared null by the competent organs of ecclesiastical jurisdiction, or is dissolved for non-consummation, in conformity with the canonical norms. For these cases the Concordat and the law lay down the norms to be followed so that the relevant ecclesiastical measures and sentences become enforceable for civil effects. Such measures or sentences, once made enforceable, are to be annotated in the margin of the marriage record (art. 17, last paragraph), of which all civil effects thereupon cease; retroactively, that is, from the moment of the celebration, in the case of a declaration of nullity, and from the date of the dissolution, in the case of a dispensation of a ratified and non-consummated marriage. In both hypotheses, that is, both that in which the transcription is annulled for non-observance of the norms of the civil law, and that in which an ecclesiastical sentence declaring the nullity of the religious marriage is made enforceable, when the marriage has been contracted in good faith, it produces with regard to the spouses and the children the effects of a putative marriage (v. below).

5. Pre-Concordat marriages

The Concordat principle that recognizes civil efficacy for canonical marriage and for the relevant ecclesiastical jurisdiction was extended by the matrimonial law in part also to earlier marriages. Thus it was permitted that, under given conditions, marriages celebrated with the religious rite alone even before the law of 27 May 1929 be transcribed, although with the civil effects running from the day of the transcription and not from that of the celebration (art. 21). On the other hand, it was admitted for marriages contracted with the double rite, civil and religious, before the Concordat, that the pronouncement of nullity or the measure of dispensation for non-consummation of the religious marriage produce, in determinate circumstances, their effect also with regard to the civil marriage contracted between the same persons (art. 22).

6. Nature of the state's recognition of canonical marriage

The recognition of civil effects for canonical marriage and the relevant devolution to ecclesiastical jurisdiction of causes of nullity and of dispensation have given rise to a major question concerning the figure of such recognition, that is, the title on the basis of which the norms of canonical matrimonial law exert their efficacy in the legal order of the State. It has been asked in particular whether, by effect of the Concordat norm, there has or has not been a reception (receptive or material reference) of canonical matrimonial law into Italian law, some affirming and others denying it, who maintained instead that it was a simple formal or non-receptive reference. Others again hold that one cannot speak even of a formal reference, but of a civil recognition of canonical laws issued by the Church in the sphere of its own autonomy, while still others attempt different explanations. Without entering here into this question, which is largely academic and rendered particularly arduous by the conceptual and terminological uncertainty of the starting notions, it is important nevertheless to note that the recognition of juridical efficacy in the Italian legal order for the canonical matrimonial order, however one may wish to qualify or classify it, cannot, by the very clear letter and spirit of the Concordat provision, be understood as limited to the canonical norms in force at the moment when that recognition was implemented, but refers to canon law as an autonomous system, in the reality of the historical moment and in the possibilities of future development, that is, as it is and as it could be modified subsequently by the ecclesiastical legislator.

Roma 1932; G. Le Bras, Mariage, in DThC, IX, col. 2044
sgg.; A. Vermeersch, Cathelisme du Mariage chrétien d'après
l'encycl. « Casti connubii », 2ª ed., Bruges-Parigi 1934; G. Cavigioli, Guida allo studio canonico-morale del trattato « de matrimonio », 2ª ed., Torino s. d. (1941); A. C. Jemolo, Il M.
nel diritto canonico, Milano 1941; J. Hellen, Tractatus de matrimonio, 9ª ed., Malines 1945; A. Martin, Le Mariage, Rennes
1946; A. Bertola, Il M. religioso, 2ª ed., Torino 1946; M. Conte
A. Coronata, Institutiones iuris canonici: De Sacramentis, III,
Torino-Roma 1946; E. F. Regatillo, Ius Sacramentarium, II,
Santander 1946; F. X. Wernz-P. Vidal, Ius canonicum, V. Ius matrimoniale, 3ª ed. curata da Ph. Aguirre, Roma 1946; I. Chelodi - P. Ciprotti, Ius canonicum de matrimonio, 5ª ed., Vicenza
1947; F. M. Cappello, Tractatus canonico-moralis de Sacramentis,
III: De matrimonio, Torino-Roma 1947; V. Del Giudice, Nozioni di diritto canonico, 8ª ed., Milano 1948, pp. 105-58;
C. de Clercq, Des Sacraments (Traité de droit canonique publ.
sous la direction de R. Naz, II, 1, 3ª), Parigi 1948; O. Giacchi,
Il consenso nel M. canonico, Milano 1950. - II. Diritto concordatario: A. Ravà, Il M. secondo il nuovo ordinamento italiano, Padova 1929; A. Grisostomi Marini, Il diritto matrimoniale nelle re-centi disposizioni legislative, Roma 1929; F. Vassalli, Lezioni di
diritto matrimoniale, Padova 1932; C. Badì, Sistema del diritto matrimoniale italiano, in Diritto ecclesiastico, 43 (1932), pp. 3-97;
D. Schiappoli, Il M. secondo il diritto canonico e la legislazione
concordataria italiana, Napoli 1932; G. Rossi, La celebrazione
of M. in Italy after the Concordat, Turin n.d. (1935); A. Ravà,
Lezioni di diritto civile sul m., 3ª ed., Padova 1935; C. Rebuttati,
L'ordinamento matrimoniale concordatario, Roma 1940; P. Bova,
M. concordatario e sue controversie, Milano 1943; V. Del Giudice, Il M. nel diritto canonico e nel diritto concordatario italiano,
ivi 1946; L. Spinelli, La trascrizione del M. canonico, Roma
1950; A. C. Jemolo, Il M., in Trattato di diritto civile, sotto la direzione di F. Vassalli, Torino 1951.

Arnaldo Bertola

III. SECOND MARRIAGES

These are marriages contracted after the bond of the previous marriage has been dissolved, even if in order of time they are the third, fourth or further ones. In this regard one still speaks of polyandry or successive polygamy and, according to the number of previous wives, of bigamy, trigamy, etc.

Divine and ecclesiastical law regard second marriages as valid and lawful, provided that the bond of the first marriage has been dissolved with certainty. Nevertheless, discussions arose and there were contrasts between the discipline of the Latin and the Eastern Church.

1. Historical notes

The teaching of Jesus is silent on this point, but the apostle Paul is explicit on the lawfulness of second marriages, since the marriage bond is dissolved by the death of the spouse (Rom. 7:3; 1 Cor. 7:39). Therefore, while praising chaste widowhood as a more perfect state of life, he does not impose it (1 Cor. 7:8); indeed, to young widows he advises marriage again (1 Tim. 5:14). And only in the candidate for the episcopate does he require, for various reasons, that he be "unius uxoris vir" (Tit. 1:5-7; 1 Tim. 3:3).

Perfectly in accord with the teaching of the Apostle is The Shepherd of Hermas, who writes in Rome about a century later (Mand. 4, 4, 1st ed. F. X. Funck, Patres Apostolici, I, Tübingen 1901, p. 480). But already a few years afterwards (ca. 177), in the East, Athenagoras calls second marriages "a decent adultery" (Legatio, 33: PG 6, 967). Two tendencies are evident, one more benign, the other more rigid. The latter was formed within the bosom of Catholic tradition, outside the heretical movements, through an exaggerated interpretation of the unitas carnis and of the symbolism of marriage as a figure of the union of Christ with the Church, preached by St. Paul (Eph. 5:23-32).

In the tradition one must distinguish between East and West and, within the East itself, between the doctrinal attitude of the Fathers and the ecclesiastical legislation on the matter. The Greek councils of earliest antiquity do not forbid second marriages, though they subject bigamists to a penance of a certain duration, perhaps to preserve some outward propriety and to give satisfaction to the more rigid current. This is formed by certain Fathers who, for the aforementioned reasons, and in the effort to tend toward a higher moral perfection, consider second marriages as scarcely decorous, going so far, the most extreme among them, as to condemn them.

This does not happen in the West, as long as one remains within orthodoxy: the condemnation of second marriages is proper only to heretics (Montanists, Novatians, etc.), even though some canons that subject bigamists, trigamists, etc. to penance were received into the canonical collections and penitential books. In this regard the attitude of Tertullian is significant. In his work Ad uxorem (l. 1: PL 1, 1386-1400) he admits (a. 190-206) second marriages, though with reservations and while exhorting his wife not to contract them in the event of his death. In the second work Exortatio castitatis (ch. 7-8: PL 2, 970-73) the disapproval of second marriages is accentuated (a. 208-11); but already, though relying on frivolous motives, he casts a certain discredit even on first marriages. In the De monogamia (ch. 14: PL 2, 1000), by then a Montanist [after 213], he formally condemns every new marriage, but with puerile reasons (all Christians are brothers) and also dangerous ones (marriage is a lesser evil, tolerated by God only). Tertullian's voice, however, is no longer that of tradition, which in the West would later make itself heard with St. Ambrose (De viduis, 11, 68: PL 16, 267-68), with St. Jerome (Ep. 48, 9: PL 22, 499-500), with St. Augustine especially (De bono viduitatis, 12, 15: PL 50, 439), with Pope Gelasius (Ep. 14, ch. 22: PL 69, 49), all favorable to second marriages, even if these are called: solatia miseriae... non laudes continentiae (St. Jerome, Ep. 48, 18: PL 22, 508).

The Councils of the West, held at Elvira (ca. 300), at Arles (a. 314) and at Vaison (a. 442) do not speak of second marriages. Only the Council of Orange (a. 441) has in it a mention that is not one of reprobation (can. 25). In the East too there is no lack of Fathers who consider second marriages entirely lawful. Thus Clement of Alexandria (Stromata, 3, 12: PG 8, 1186 ff.), thus Epiphanius (Adversus haereses, 59, 4: PG 41, 1024-25). But the rigorist current finds an echo especially among the Cappadocians and draws strength from their authority. St. Basil, who calls trigamy by the name of fornication (πορνεία), subjects bigamists and trigamists to various degrees of penance (Ep. can. 1st, can. 4: PG 32, 673). St. Gregory of Nazianzus goes so far as to say that second marriages after the death of the spouse are simply tolerated and that third marriages, in the same case, are a παρανομία, that is, an iniquitas or fault (Orat., XXXVII, 7, 8: PG 36, 292).

This opposition to second marriages properly so called will not be prolonged beyond the 4th century. Already St. John Chrysostom limits himself to discouraging only second marriages (In Mt., Hom. XVII, 4: PG 57, 259-60), but trigamy and tetragamy will continue to be considered unlawful. In Eastern canonical legislation the Council of Ancyra (a. 314) has only a mention of the year of penance prescribed for bigamists (can. 19). Similar mentions are found again in the Council of Neocaesarea (aa. 214-25), cann. 3, 7; in the Council of Laodicea (aa. 343-81), can. 1. But the penance is restricted to a brief period and is not an absolute condemnation. So true is this that already the Nicene Council (a. 325) requires in the retractation of the Cathars (Novatians) the admission of the lawfulness of second marriages (can. 18: Denz-U, 55). This tendency to consider bigamists, trigamists, etc. as penitents passed into the Penitentials, in use also in the West, so much so that there is a trace of it also in the Decretum of Burchard (tit. 23, ch. 2).

But already in this same period the Roman Pontiffs in the case (aa. 907-20) of the Eastern emperor Leo VI, reproached by the Greeks for his fourth marriage, take his side. And they do not allow themselves to be induced to set a limit to the right to contract successive marriages, while in the East fourth marriages are formally condemned and even third marriages are viewed with disfavor (A. Fliche-V. Martin, Hist. de l'Église, VII, s. l. 1948, p. 119 ff.). Controversies of this kind occurred subsequently in the Russian and Serbian Church, by then outside unity, but the question of tetragamy was never taken into consideration at Rome, except in moments of reunion with the dissidents (M. Jugie, Theologia dogmatica christianorum orientalium, II, Paris 1930, p. 468 ff.).

From the time of Gratian in the West, although the ancient canons were not unknown (c. 7, 10, C. 31), no one any longer thought of applying the penitential canons relating to successive polygamists, and the Glossa interpreted can. 3 of the Council of Neocaesarea, which imposed penance on bigamists, as if it were a matter of simultaneous bigamy (Glossa ad 9, C. 31).

Almost contemporaneously, in the profession of faith imposed by Innocent III on the Waldensians (ep. Eius exemplis, 18 December 1208), it is commanded to assert "nec etiam secunda et ulteriora matrimonia condemnamus" (Denz-U, 424). The same profession was submitted to the Greeks by Innocent IV (ep. Sub catholicae of 6 March 1254, § 3, n. 20; Denz-U, 455), to Michael Palaiologos at the Second Council of Lyon (Ecumenical XIV) of 1274 (Denz-U, 465; the Greek version, however, mentions only second and third marriages: M. Jugie, op. cit., II, p. 469), in the libellus Iam dudum (n. 49) transmitted to the Armenians in the year 1341 by Benedict XII (Denz-U, 541) and again to them in the Decretum pro Armenis (Mansi 31, 1054). However, just as the Eastern Church denied the "coronation" to those who contracted second marriages (cf. M. Jugie, op. cit., II, p. 467), so the Western Church denied them the solemn blessing (Nicholas I, Respons. ad cons. Bulgar., a. 866, n. 3; PL 119, 979). This practice was, however, modified in the sense that, if the woman was in her first marriage, even if the husband was a widower, the blessing was not denied. This is already attested by Bernard of Pavia (Summa decretalium, ed. E. A. T. Laspeyres, Ratisbon 1861, p. 194) and by the Glossa to the Gregorian Decretals (ad c. 3, X, 4, 21), and it is still to be observed today, if in use in the region (Rituale Romanum, VII, c. 1, n. 18).

The Church itself did not accept in the common law (for particular law, cf., for example, the Poenitentiale Theodori [Pseudo-Theodore], I, II, cap. 12, § 9) the impediment of the tempus lugendi, introduced by the Roman laws and accepted with modifications in many modern legislations. For the irregularity arising from second marriages, v. BIGAMIA.

2. Present discipline

It is the same as that enunciated by St. Paul and reaffirmed again in the Council of Trent (Sess. XXVI, can. 10): a chaste widowhood is preferable, but second marriages are lawful (can. 1142); before contracting them, every possible doubt about the cessation of the first bond is to be removed (cann. 1142, 1069 § 2; v. LIGAMEN; MORTE, effetti giuridici).

The Church does not prescribe any interval of time between the cessation of the preceding M. and the celebration of the subsequent one; it recommends, however, observing the customs and usages of the place. In Italy, by the Concordat, it is not lawful without the license of the Ordinary to admit the widow to M. before ten months or before childbirth (instr. of the S. Congr. of the Sacraments, 1 July 1929).

As has been said, it is forbidden to give the blessing to a widow who contracts a new marriage (can. 1143, Rituale Romanum, tit. VII, c. 1, n. 18).

Pietro Palazzini

IV. MARRIAGE OF CONSCIENCE

A marriage of conscience, or secret marriage, sometimes also called less perfect (in relation to external formalities), is one that is contracted with the omission of the banns, before witnesses and one's own parish priest or a priest delegated by the Ordinary, all of whom are bound by the obligation of secrecy until the reason for that same secrecy ceases. It is therefore not to be confused with the clandestine marriage (v. above), contracted without the presence of the parish priest and the two witnesses, today possible only for non-Catholics.

The exact notion concerning such marriages must be sought in the works of Benedict XIV, in whose time they had come very much into use, whereas before there had been scarcely any trace of them, as he himself affirmed in a votum written when the matter was first proposed to the Sacred Congregation of the Council. The discussions then held on the subject persuaded them to defer judgment concerning the requirements for lawfully contracting such marriages (cf. Benedict XIV, De Synodo dioecesana, 13, 23, n. 12, in Opera omnia, XI, Prato 1844, p. 654).

Raised to the pontifical throne, Benedict XIV, with his constitution Satis vobis of 27 November 1751 (ibid., XV, ivi 1845, pp. 113-16), clearly set out the state of the question and prescribed with his customary precision the norms to be observed in practice.

The same legislation is in force today, because the principles passed from the constitution into the CIC (cann. 1004-1007). First of all, no one is permitted to celebrate marriage in this manner without the permission of the local Ordinary, the vicar general being excluded as well unless he has a special mandate (can. 1104). The Ordinary must use this faculty only when there are most grave and urgent reasons. The reason for this provision is quite clear, if one reflects that with this kind of marriage the dangers that led Trent to declare clandestine marriages null can resurface.

To these inconveniences others are added today through the operation of civil laws concerning the validity of marriage and the legitimacy of offspring. But at the same time the present age, while subjecting the marriage of conscience to new dangers, has also brought about new situations in which it appears necessary. Therefore the CIC has willed neither the abolition of the marriage of conscience nor its excessive facilitation, but rare and motivated concessions; it requires, that is, that there be reasons such that the marriage cannot be omitted or delayed, nor can it be celebrated publicly.

What in concrete terms the sufficient reasons are is precisely the crux of the question and the source of so many difficulties. The new legislator is silent on the matter. According to the doctrine of Benedict XIV, a reason exists in the case in which the man and the woman live publicly as if truly married, without any suspicion of crime, while in reality they live in secret concubinage (constitution Satis vobis, n. 6). Most modern authors, however, contest that in this case there is a true marriage of conscience; indeed the married state (matrimonium in facto esse) of these spouses is not at all secret. The act, however (matrimonium in fieri), by which this marriage is celebrated, remains secret and must remain so, in order not to harm the reputation of the spouses and to avoid scandal among the people. And under this aspect such a marriage is called a marriage of conscience.

Modern canonists list other reasons that can be deemed sufficient for a marriage of conscience. Thus, for example, the case of the soldier prevented from marrying the woman to whom he is already bound by marital affection and with whom he intends to continue living and by whom he has had children, because she is without a dowry. The same must be said of the son still under his family's authority, who finds himself in the same situation, while his relatives, without reason, obstruct his wishes. But much in this depends on the customs of different places and on prevailing opinions. Hence the necessity of an exact evaluation of the condition of the prospective spouses, of their character, of the disposition of their minds, of the customs of the place and of the entire situation; above all it is necessary to keep in mind whether there has already been between them a communion of life, from which one could withdraw only with grave harm.

In general it is necessary that the reasons requiring the marriage of conscience be transient, especially when offspring already exist or probably will; otherwise the difficulties are increased. The permission for a marriage of conscience carries with it of itself the obligation of secrecy for all participants and for the successors themselves of the assisting priest and of the Ordinary (can. 1105). The obligation of secrecy ceases on the part of the latter when a grave scandal should arise among the faithful, who, not knowing of the celebration of the marriage, would see the two treating each other and acting as true spouses. It also ceases upon the occurrence of a grave injury against the sanctity of marriage, with the attempt, for example, by one of the two spouses, or by both, at a new marriage; or if the parents should neglect to have the children baptized or should have them baptized under false names, without the Ordinary within thirty days having notice of the offspring born and baptized with the true names of the parents, or should neglect the Christian education of the children (can. 1106).

To be sure, the CIC does not speak of a special promise to be made by the contracting parties in this sense; but besides this being clearly expressed by Benedict XIV, who is the source of the CIC, the very nature of the matter requires that they know and accept all the burdens annexed and connected with the favor granted to them. The spouses may then at any time, but always by mutual agreement, make their marriage known, since the secrecy is preserved solely in their favor. Finally, the marriage of conscience must not be recorded in the usual book of marriages and baptisms, but in a special book to be kept in the secret Archive of the Curia (cann. 1107, 379).

Pietro Palazzini

V. MORGANATIC MARRIAGE

The name of morganatic marriage probably derives from the word morgengabe or from morgangeba, which was the gift given by the husband to the wife after the first wedding night, almost a pretium pudicitiae, or, according to others, as a sign of the consummation of the marriage: in morganatic marriage, in fact, the wife and the offspring did not come to share in the goods and the dignity respectively of the husband or of the father, except in small part, in the manner of the so-called morning gift, ad instar solius doni mattutini. Others derive the term from the Gothic morgan (= to restrict), or from the German morgen (in which case the morning marriage would be contrasted with the solemn one of full day); or from the phrase à la fée morgane, the latter etymology being very questionable and unverified.

A marriage contracted between a man of most noble or royal lineage and a woman of humble origins is called morganatic, with the condition that, while the marriage is fully valid before the Church, in the civil sphere the wife is excluded from sharing in the dignity of the husband, and the children from all honors and titles, as well as, at least in part, from the succession to the paternal goods.

It is also called disparagium (marriage between unequals), as opposed to aparagium marriage (that is, between equals); marriage ad sinistram manum or ad legem salicam. From what has been said, it is clear that the existence of morganatic marriage depends completely on the law, according as, in the various countries, the distinction is known or not, with different effects, between ordinary marriages and those contracted by various nobles with women of inferior origin.

Morganatic marriage is of barbarian origin; traces of it are in fact found in the Lombard legislation under Liutprand (Leges Langobardorum, tit. V, ch. 1) and in feudal customs (Liber de usibus feudorum, l. II, tit. 29). The Salic law reaffirms the feudal customs (tit. XLVI, sect. IV) and so does the Codex Friderici (part 1, book II, tit. III, art. 2). Austria and Germany were, one might say, the classic lands of such marriages: from there customs and laws radiated to the rest of Europe (cf. the Savoyard legislation of the 18th century: A. Pertile, Storia del diritto italiano, III, Turin 1894, p. 290, note 27).

From the last century there are remembered in Austria the marriages of Maria Luisa, daughter of Francis I and widow of Napoleon I, who married the count of Neipperg; that of Archduke Francis Ferdinand of Austria, son of Ferdinand, brother of Emperor Francis Joseph, with the countess Sofia Chotek of Chotkiova. In Germany there is remembered the marriage of Prince Albert, brother of Emperor William, with the countess Rosalia Hohenau de Ranche; in tsarist Russia that of Grand Duke Michael Mikhailovich, cousin of Tsar Nicholas II, with the countess Sofia Marenberg-Torby. In France there is the celebrated case of the marriage of Louis XIV with Madame de Maintenon; but French legislation was always hostile to morganatic marriage. In the House of Savoy too morganatic marriages are remembered, such as that of Victor Emmanuel II with the countess of Mirafiori Rosa Vercellana and that of Prince Eugene of Carignano-Savoy with the countess of Villafranca-Soissons, Felicita Crosio.

Nowadays only sovereign houses or families of the high nobility equated to them by the imperial act of 8 June 1818, the federal decision of 19 June 1825 and the acts of the Congress of Aix-la-Chapelle adhere to morganatic marriage. Present-day legal systems (cf. the Italian, French, etc. civil codes) are contrary to morganatic marriage, which is disappearing. The German code admits it for certain families. In the ecclesiastical forum morganatic marriage is considered like any other marriage and produces all canonical effects: the restrictions concern only the civil effects. As regards canon law, one must be careful not to confuse morganatic marriage with marriage of conscience (v. above), although at times they coincide. The distinction in fact appears on the one hand from the fact that morganatic marriage can be celebrated openly and publicly, with the customary solemnity and concourse of people; and this means that a marriage of conscience is not morganatic, if the man does not belong, for example, to the nobility of a certain determined rank, to which the civil law applies the special provision concerning morganatic marriages, or if in the civil code on which it depends the distinction between morganatic marriage and other marriages is not admitted, and therefore different civil effects are not established.

On the other hand, in places where morganatic marriage is recognized by the civil law, it sometimes coincides with marriage of conscience. Indeed it often happens that a morganatic marriage is celebrated as one of conscience, since the reasons for concealing the wedding more easily arise in the families of the great and of princes.

Pietro Palazzini

VI. PUTATIVE MARRIAGE

The institution of putative marriage — which can be defined generically as an invalid marriage contracted in good faith — was created by canon law for the purpose of mitigating, especially with regard to the offspring, the rigorous consequences of the nullity of marriage.

1. The general logical premise for marriage to produce the juridical effects inherent in it, whether with regard to the parties or with regard to the children born of their union, is that the marriage itself be valid, that is, brought into being with the observance of all the requirements of capacity, consent and form demanded by law in order legitimately to give life to the matrimonial act, and — if between baptized persons — to the corresponding Sacrament. Therefore, if the marriage is invalid owing to the presence of some impediment or is in any case unlawfully contracted, neither can the spouses be called such, nor can the children be considered legitimate. To this rigorous principle, formulated as an absolute rule in Roman law (C. V, 5, 6), canonical doctrine held that an exception must be made in the case of good faith on the part of the spouses, when they had contracted marriage in ignorance of its defect, and were therefore under the persuasion that they were legitimately joined. Already Peter Lombard clearly reports (Sentent., l. IV, D. 41, C) the opinion of doctors who, though diverging in their juridical evaluation of the relationship created by the invalid marriage contracted in ignorance, are agreed in the conclusion that recognizes the legitimacy of the children. This maxim is finally sanctioned in the law of the decretals (cc. 2, 8, 10, 14, X, qui filii sint legitimi, IV, 17).

It was thus established that, if one of the two spouses had been in good faith at the moment of the contract, the marriage, although null, produces all the effects of a legitimate or valid marriage for the whole time preceding the declaration of nullity and for the children born or conceived in that period. A condition normally required, however, besides good faith, was that the marriage be contracted in facie or in conspectu Ecclesiae; a clandestine marriage (v. above) could as a rule not give rise to a putative marriage (c. 3, X, de cland. despons., IV, 3). On these bases the doctrine of the institution thus came to be delineated, but the questions concerning the exact determination of the two requirements needed to constitute it did not fail to arise: good faith, and celebration in facie Ecclesiae. Regarding good faith, the opinion became consolidated that that of one of the spouses alone sufficed — whence the theory that it should be considered independently for the two spouses was rejected, according to which the child would have had to be declared legitimate only with regard to the spouse ignorans — (monstruosum esset aliquem pro parte fore legitimum pro parte illegitimum) — the rule was fixed in the sense that to constitute it there sufficed not only ignorance or error of fact, but also error of law, provided it was valde probabilis et iustus. The maxim was moreover accepted that, in doubt whether the parties had been ignorant of the impediment or not, good faith was presumed; according to some, however, only in the case of error of fact and not also in that of error of law. Finally, always consistently with the fundamental purpose determining the formation of the institution, that is, the favor owed to innocent children, the concept of good faith was broadened to the point of being held compatible with an initial doubt concerning the validity of the marriage (nam qui dubitat est in bona fide) and of maintaining its effects, when it existed initially, even after the contestation of the suit concerning the existence of an impediment, so that the children born subsequently were called legitimate, provided they were conceived before the sentence of nullity.

As for the other requirement of celebration in facie Ecclesiae, which would have excluded the possibility of considering as putative a marriage vitiated by clandestinity, it naturally follows the variations that the notion of the latter underwent up to the Council of Trent. Therefore, whereas in the earlier law it sufficed to constitute celebration in facie Ecclesiae that it take place publicly, in conspectu fidelium or cohadunatis amicis, and, after the Fourth Lateran Council (1215), observed the formality of the publications or banns prescribed by it, after Trent the form established by it is required, that is, the presence of the parish priest and of the witnesses. Nevertheless authors are not agreed in holding that in the law prior to the CIC celebration coram Ecclesia was a mandatory requirement for giving rise to a putative marriage; and in any case the opinion seems more plausible according to which the condition in question was always implicit in relation to the requirement of good faith; in the sense, that is, that by effect of the clandestinity of the celebration, good faith was no longer presumed, but rather bad faith.

The effects of putative marriage, at first limited to the legitimacy of the offspring, gradually came to be extended also to the patrimonial relations between the spouses, guaranteeing to the party in good faith the advantages that would have had to derive to it from a valid marriage.

2. The CIC has maintained the figure of putative marriage in its essential traits. It formally qualifies as such every invalid marriage celebrated in good faith by at least one of the parties, and until both have acquired certainty of the nullity (can. 1015 § 4). In this definition there is no mention, as can be seen, of the necessity of celebration coram Ecclesia, for which reason the prevailing doctrine interpreted this norm in the broadest sense — also in conformity with the rules of the most correct juridical hermeneutics —, referring it therefore to every marriage contracted in good faith, independently of celebration or not in the canonical form. However, a responsum of the Commission for the authentic interpretation of the CIC dated 26 Jan. 1949 declared that the word celebratum used by can. 1015 § 4 was to be understood as referring only to marriages celebrated coram Ecclesia. In this way the provision of the CIC has come to have a strongly restrictive interpretation, which would seem to exclude among other things the possibility of configuring putative marriage in the case of marriage between non-Catholics; but although it has been sought to justify such a responsum as a return to the genuine and original concept of putative marriage in the law ante Codicem, an authoritative part of the doctrine has not failed to observe that, not only — as has been seen — is it far from being settled that the principle affirmed by the responsum really corresponds to the doctrine ante Codicem, but that moreover the responsum itself seems to be in contrast with the age-old tendency of the Church to eliminate clandestinity as a ground of nullity of marriage between non-Catholics and mixed parties, considering as legitimate all those marriages that have formam et figuram matrimonii according to local customs, and furthermore with the spirit of generosity in favor of the offspring that inspired the rise and evolution of the institution in canon law.

The effects of putative marriage foreseen by the CIC are those of causing the children conceived or born from it to be considered legitimate in the same way as children conceived or born from a valid marriage, that is, provided the parents were not forbidden the use of marriage at the time of conception by effect of solemn religious profession or of sacred Order (can. 1114). Likewise putative marriage, even if not consummated, has the effect of legitimating the offspring born previously, in the same manner as a valid marriage, that is, provided the parents were capable of contracting marriage with each other at the time of conception, of pregnancy or of birth (can. 1116).

Putative marriage ceases to be such when both parties acquire certainty of the nullity (can. 1015 § 4); with the effect that the offspring conceived subsequently is no longer considered legitimate, under can. 1114, as is that born or conceived previously.

3. The institution of putative marriage, elaborated by canon law and from there passed into common law and deeply embedded in the practice of various countries, was also adopted in its constitutive principles by modern legislations, particularly in the French Civil Code and in the codes that derived from it more or less directly. While some legal systems, such as the Swiss one, ensure favorable treatment for children born of a null marriage without regard to the good faith of the parents, the consideration of this element has remained essential in those legislations which, like those mentioned above, have adopted the figure of putative marriage.

The current Italian Civil Code provides in this regard that a marriage declared null, when it has been contracted in good faith, has, with respect to the spouses, until the judgment pronouncing the nullity, the effects of a valid marriage. These effects are produced also with respect to children born or conceived during the marriage declared null as well as with respect to children born before the marriage who have been acknowledged prior to the judgment declaring the nullity. If only one of the spouses has been in good faith, the effects hold only in favor of that spouse and the children. If both parents have been in bad faith, the children born or conceived during the marriage have the status of acknowledged natural children, in the cases in which acknowledgment is permitted (art. 128). The same effects obtain in the case in which the consent of a spouse has been extorted by violence, and they are produced with respect to the spouse who suffered the violence and the children; as for the other spouse, they hold only in the case that the latter was in good faith (art. 129).

With these provisions, which have the effect of removing from the judge's pronouncement declaring the marriage null the retroactive effect that would logically follow from it, the declaration of nullity or annulment (it is well known that for civil marriage, unlike canonical marriage, the two concepts must be distinguished) is substantially equated to a dissolution that prevents the production of new effects but preserves those already produced.

For there to be a putative marriage according to the Civil Code, it seems beyond doubt that there is required first of all the existence of some essential element that excludes the case of a non-existent marriage and in any case that no form whatsoever of celebration has been lacking, that is, as has also been said, that there has been a formal investiture in the juridical relationship of marriage. It is debated whether one may speak of putative marriage for civil effects in the case of a religious marriage not transcribed: Italian doctrine is divided on this point. French jurisprudence, on the other hand, has recognized as putative marriage also one contracted in good faith before a priest.

As for the requirement of good faith, here too, echoing the old disputes on the matter, points of conflict are not lacking. The prevailing opinion today seems to be that good faith (which exists whenever the spouses, or at least one of them, in contracting the marriage were ignorant — whether through an error of fact or an error of law — of the existence of the cause of nullity) is presumed, and therefore need not be demonstrated, by the general principle of the presumption of good faith. But there are those who doubt that in this case such a principle can be applied, since here good faith is precisely taken into consideration by the law for the granting of exceptional rights. Others still make a distinction between error of fact and error of law, admitting the presumption of good faith only for the former and not for the latter, in deference to the principle nemo censetur ignorare ius, which would in turn give rise to a contrary presumption. Also controversial is the assessment to be made of doubt regarding the existence of the cause of nullity, etc. In any case, unlike in current canon law, where, as has been seen, a putative marriage remains such only until both spouses attain certainty of the nullity (cann. 1015 § 4, 1114), in civil law the rule mala fides superveniens non nocet applies, so that it is sufficient that there be good faith at the moment of celebration for the effects of putative marriage to be produced and to persist until the judgment pronouncing the nullity (art. 128). These effects are produced even if the nullity of the marriage has been declared after the death of one of the spouses, in which case the surviving spouse in good faith is entitled to the same inheritance rights attributed to a spouse in the case of a valid marriage (art. 528). However, if the deceased spouse was bound at the time of death by a valid marriage (that is, in the hypothesis of bigamy), the putative spouse is excluded from inheritance rights, and this for the obvious purpose of eliminating the possibility of two spouses, one true and one putative, sharing in the succession.

Arnaldo Bertola

VII. RATIFIED AND UNCONSUMMATED MARRIAGE

A ratified marriage, according to can. 1015 § 1, is a valid marriage of baptized persons, if it has not yet been completed by consummation. It is called ratified not only in opposition to a consummated marriage, but more properly because, being endowed with sacramental character, the Church sanctions it: « cum ratum habet » (cf. P. Gasparri, De Matrimonio, I, Vatican City 1932, n. 41). A ratified and consummated marriage exists when the conjugal act, to which marriage is by its nature ordered, has taken place between the spouses (can. 1015 § 1).

A marriage validly contracted between non-baptized persons is called "legitimate": if the copula has occurred, "legitimate and consummated." If the copula follows a legitimate marriage which has become ratified through the reception of Baptism by both spouses, then this marriage is called "consummated and ratified."

These are the formulas used by the CIC and by modern canonists, which in the texts of ancient law have instead a varied and fluctuating sense. Ratified marriage is taken to mean now the valid and licit marriage of the faithful, now the valid marriage, now the invalid one, although celebrated according to the Tridentine form, and sometimes the marriage neither valid nor licit. More commonly, a valid but not licit marriage was called "simply ratified," and the marriage of the faithful, valid and licit through observance of the rite of the Church, was called "legitimate and ratified": thus in Gratian (17, C. 28, q. 1). The Council of Trent called clandestine marriages, celebrated by the faithful before their prohibition, "true and ratified" marriages (Sess. 24, cap. 1, de ref.). Various authors prior to the CIC call ratified the non-consummated marriages not only of the faithful, but also of the non-baptized.

According to can. 1118, which summarizes the teaching of the sources of tradition, in order for a marriage to be absolutely indissoluble (v. INDISSOLUBILITY) two conditions are required, namely the sacramental character and consummation: if either is lacking, absolute indissolubility no longer obtains. It is therefore not repugnant that the Roman pontiff should have the power to dissolve the bond of a marriage that has not been consummated, provided that one party, through the reception of Baptism, is subject to the jurisdiction of the Church; and that the bond should likewise be dissolved by solemn religious profession, by constitution of the law itself (can. 1119).

1. The dissolution of a ratified marriage by solemn religious profession

a) Historical notes. — In the history of the Church there exist examples of holy and pious persons who, after celebrating the nuptials and before consummating them, left their partner in the world to consecrate themselves to God. Such gestures have elicited the praise of sacred writers and of the Church.

Leaving aside the example of St. Thecla, reported by late writers (St. Ambrose: De virginitate, 2, 3, 19; PL 16, 223; St. Epiphanius: Adversus haereses, 3, 2, haer. 78, n. 16; PG 42, 726), and that of St. Cecilia, there is the example, narrated by St. Augustine (Confessions, 8, 6; PL 32, 755-56), of the two courtiers who, on reading the life of St. Anthony, abandoned the world, while their spouses too offered their virginity to God. Very well known is the legend of St. Alexis (v.), a noble Roman who, having fled on the evening of his nuptials, led the life of an ascetic in Edessa. Similar is the legend of the hermit Macarius (26, C. 27, q. 2), of St. Leonard, of St. Odius, queen of England (J. Clericatus, Decisiones sacramentales, II, De Matrimonii Sacramento, decis. XIV, Ancona 1757, p. 53 ff.) and of the other English queen Ethelthryth (Bede, Hist. eccl., 4, 19; PL 95, 201), with the variation that in these last two cases it is the woman who abandons the world. But in all these examples either the historical value of the facts narrated is not established, or it is doubtful whether what is involved is the breaking of betrothals rather than true and proper ratified marriages, or there is no certainty that the partner, remaining in the world, entered into second nuptials.

Outside of properly ecclesiastical tradition, in Justinian Roman legislation monastic profession (in agreement with the Fathers and councils) is numbered among the matrimonial impediments (Nov. 5, 8; 123, 1): simple entry into the monastery is held to be a just cause for the dissolution of betrothals (ibid., 123, 34, 40); indeed (and this in disagreement with ecclesiastical authority) monastic profession is considered a just cause for the dissolution of marriage (cf. C. I, 3, 52 [53] § 15; C. I, 3, 54 [56] § 4; Nov. 5, 5; 22, 5; 117, 12; 123, 40).

Returning to strictly ecclesiastical tradition, and leaving aside other references of no great clarity that are encountered in tradition regarding the dissolution of a ratified marriage (cf. 27, 28, C. 27, q. 2; Bernard of Pavia, Summa de Matrim., ed. Laspeyres 1860, p. 299), the first who spoke of it explicitly is Alexander III, formerly Magister Rolandus at Bologna, in two decretals addressed to the archbishop of Salerno (a. 1180) and to the bishop of Brescia (2, 7, X, 3, 32). He expressly admits that the partner, remaining in the world, may enter into new nuptials («ad secunda vota transire»), and a third decretal creates no difficulty, moreover not collected in the Gregorian Decretals, but only in the first ancient compilation (c. 5, de sponsa duorum, IV, 4), in which it would appear that the contrary is asserted, because the denial here is not absolute, but conditional (dine iudicio Ecclesiae).

The doctrine of Alexander III is then confirmed by Innocent III (14, X, 3, 32) and becomes dogmatic definition in the Council of Trent (sess. XXIV, de Sacr. Matr., can. 6), which sought to break the audacity of the false reformers, who devalued the efficacy of religious profession. Today it is received, as has been mentioned, in can. 1119, which decrees that a non-consummated marriage between baptized persons, or between one baptized party and another non-baptized party, is dissolved ipso iure by solemn religious profession.

b) Conditions required. - α) The non-consummation of the marriage. - In what consummation consists will be said further on. It is opportune now to observe that the marriage upon which solemn profession exercises its efficacy may be: either ratified and non-consummated, if the spouses are both baptized and Catholic or one Catholic and the other non-Catholic; or doubtfully ratified and non-consummated (given the controversy concerning the sacramental character of these marriages), if the spouses are one baptized and the other non-baptized, and have contracted either with a dispensation from disparity of cult or, the baptized party being non-Catholic, have been able to contract without need of dispensation (can. 1070 § 1), before the baptized party converted and passed to solemn religious vows.

Still a ratified marriage is a marriage already legitimate, not consummated either before or after the conversion and Baptism of both spouses: doubtfully ratified is the same marriage, under the same conditions, after the conversion and Baptism of one of the spouses. Upon these, solemn religious profession can without doubt exercise its efficacy. It is controverted instead whether a marriage, validly contracted and consummated in infidelity, but no longer consummated after the conversion and Baptism of both parties, can be dissolved by solemn profession. In theory the two opinions, negative and affirmative, remain even today in conflict and balance each other: in practice, however, both agree in requiring recourse to the Holy See.

β) Emission of solemn profession. - Since there is express mention of solemn profession, neither the vow to enter religion, nor entry into religion, nor the assumption of the religious habit, nor the profession of simple vows, nor the conferral of the sacred Order of the subdiaconate, nor the vow of chastity emitted on this occasion or independently in the world, produces any effect. There is mention furthermore of a true and therefore valid profession, that is, one in which all the formalities required ad validitatem have been observed (can. 572 §§ 1-2).

Among the other formalities required for the validity of the profession is that a novitiate valid according to cann. 555 and 542 must precede it. By virtue of the latter can. 542, n. 1, the admission to the novitiate of persons bound by M. is not valid without a pontifical dispensation; this dispensation must therefore precede it. Further, for the validity of the solemn profession, the simple profession must have preceded it by at least three years (can. 574). To spare the spouse who remains in the world all this waiting, the Holy See can grant either a dispensation from the three years of simple profession (Declaration of the Sacred Congregation super statu Regularium, 25 Jan. 1861) or a dispensation from the ratified but non-consummated M.

For all these reasons, cases in which non-consummated M. are dissolved by the effect of solemn profession are extremely rare. For the profession to be such, it must be made in a regular Order, taken in the strict sense, and must include the vow of perfect chastity. Thus certain military Orders with a vow of conjugal chastity or of abstinence from second marriages are excluded.

Also excluded (despite some contrary opinion of ancient authors) is the simple profession made in the Society of Jesus, notwithstanding that it has an invalidating effect upon a future M. (cf. A. Ballerini-D. Palmieri, Opus theol. morale, VI, 3rd ed., Prato 1900, n. 479 ff.). Finally excluded is the simple profession made in institutes of nuns in France and Belgium, which, although they have vows that are solemn by institute, make only simple vows, except in the case where, according to the Decree of the Sacred Congregation of Religious of 23 June 1933, they have obtained the faculty of making solemn vows (AAS, 15 [1923], p. 357. Today it is the desire of the Holy See that solemn vows be restored everywhere: Sponsa Christi, AAS, 43 [1951], p. 5 ff.).

The dissolution of the marriage bond takes place at the very moment when the solemn profession is made. It is natural that, for the free status of the other spouse, both the non-consummation and the solemn profession must be established by an authentic document.

γ) The law on which the dissolution of the ratified M. by solemn profession is based. - Some of the most ancient authors (Durandus, Cajetan, the Salmanticenses, etc.) assert that this happens by natural law, since there is an opposition between the two states; others (Benedict XIV, Sánchez, Perrone, Palmieri) by positive-divine or immediate law, since it is a privilege granted by Christ; others finally (Suárez, Schmalzgrueber, Wernz, Gasparri, Gietti, etc., and this is the common opinion) by ecclesiastical law. This power of the Church, however, is vicarious or ministerial and not proper. In other words, the Church, on whom the solemnity of vows alone depends, by virtue of the ministerial power granted to her by Christ, has by her own constitution established that the solemn religious profession is always to be regarded as a just cause for the dissolution of the bond of a non-consummated M.

The dogmatic canon of the Council of Trent does not insurmountably stand in the way of this opinion, inasmuch as it is possible that a truth not be revealed and yet be taught infallibly by the Church. Consequently nothing prevents the Church from establishing that a non-consummated M. be dissolved ipso iure for other general causes besides solemn profession.

2. The dissolution of the ratified and non-consummated M. by pontifical dispensation

a) Historical notes. - Already with Alexander III (1159-81) there began the explicit claim to the pontifical power of being able to dissolve a non-consummated M. (the reply of St. Gregory II, s. 726, to Bishop Boniface: 18, C. 37, q. 7, seems rather a case of impotence). Alexander III, in fact, taking a middle way between the theory of copula (Bolognese School, to which he had adhered as a teacher) and the theory of consent (School of Paris), taught as Pontiff that the ratified M., although it has the character of a true M. and Sacrament, can be dissolved only by vow of chastity (2, 7, X, III, 32) and by supervening affinity, at least public: in which second case he permitted the contracting of a new marriage (2, X, III, 32). By this he showed that he considered the non-consummated M., with respect to the dissolution of the bond, as subject to the power and jurisdiction of the Church. Two later pontiffs did the same, Urban III (1185-87) and Innocent III (1198-1218) in their decretals (14, X, II, 32; c. 3 Comp. I, 4, 8; 3, X, IV, 8). Nevertheless none of these Pontiffs affirms the pontifical power of dissolving a non-consummated M. by way of dispensation in a particular case.

The first traces of this doctrine can be found in the canonists, from Pascapalea (Summa über das Decretum..., ed. Schulte, Giessen 1890, p. 114), to Alanus, to Vincentius Hispanus (Glossa ad c. 7, X, III, 32, in Corpus iuris canonici, I, Lyon 1517, p. 271), to Hostiensis, to Panormitanus, etc. It cannot, however, be proved by historical arguments that dispensations from the ratified M. were granted in particular cases (setting aside dissolution by solemn religious profession) before Martin V (1417-31) and Eugene IV, who granted some of these dispensations, as St. Antoninus of Florence attests (Summa theologica, Verona 1740, part 3, tit. 1, cap. 21, 3), who saw the relevant bulls. In the 16th century the Church often made use of this power, while theologians and canonists ranged themselves for and against. The negative opinion, which argued especially from the non-use before Martin V and from the impossibility for the Roman pontiff of dispensing in natural and divine law, although defended by great theologians (St. Bonaventure, Scotus, D. Soto, Pontius, Reiffenstuel, Billuart, etc.), gradually gave way to the prevailing of the affirmative opinion, which, besides the aforementioned canonists, was defended by St. Antoninus, Cajetan, Azpilcueta, Sánchez, Suárez, Schmalzgrueber, Benedict XIV, Perrone, Ballerini, etc., and had above all the support of the constant and continuous use of the Roman pontiffs. Once the fact, many times repeated, of the dispensation granted by the popes is placed beyond doubt, it is easy to pass to the law, given the divine assistance of Christ to his Church.

Now examples of this kind occurred under Alexander VI (Pastor, III, p. 506 in the case of St. Joan, queen of France, besides the other case, though obscure for several reasons, of Lucrezia Borgia, ibid., p. 376), under Paul III and Pius IV (M. de Azpilcueta, Manuale confessariorum et poenitentium, 22, 21, Rome 1573, p. 319), under Gregory XIII (H. Henriquez, Theologiae moralis summa, I, 11, 8, 11, Venice 1600, p. 663 note). Clement VIII had the question of the pope's power in the matter examined by a commission of canonists and theologians, which on 16 July 1599 expressed itself favorably (D. Ursaia, Disceptationes ecclesiasticae, II, ibid. 1724, p. 1, disc. 3, nn. 10-11). Under Paul V there were new examples of dispensation (P. Fagnanus, Commentaria in I lib. Decretalium, de off. iud., I, 61, ibid. 1942, p. 552). Likewise under Urban VIII (V. De Iustis, De disp. Matrim., II, 10, 17, Lucca 1726, p. 292). Under the succeeding popes they increased more and more (cf. C. Cosci, De separat. tori con., I, 1, 16, 4-8, Rome 1773, p. 149; S. Pallottini, Collectio concludorum..., S. Congr. Concilio..., VII, ibid. 1893, p. 542 ff.; J. Perrone, De Matrimonio christ., III, ibid. 1858, p. 509).

Today the existence of the power of the Roman Pontiff over the dissolution of the ratified and non-consummated M., although it is not of faith, belongs to Catholic doctrine, by the express teaching of the CIC (cf. can. 249 § 3, 1119) and the subsequent decree of the Sacred Congregation of the Sacraments of 7 May 1923.

b) Nature of the dispensation and pontifical power over the ratum. — This is not a dispensation in the strict sense according to can. 80, but in the broad sense. The Roman Pontiff in fact does not act in his own name, but by virtue of vicarious or ministerial power, that is, in the name of Christ himself, whose place he takes. The dispensation does not come about directly, by removing the obligation of the natural and positive-divine law, but by acting upon the human act proceeding from the free wills by which the bond was caused, with a certain remission ex parte materiae. The effect is a dissolution of the bond: a decree of nullity is something altogether different.

The dissolution of the ratum in current law is reserved to the Roman Pontiff, who grants the grace of dispensation immediately by himself. Reserved to him also is the process necessary to obtain it, a process that he ordinarily entrusts to residential bishops through the Sacred Congregation of the Sacraments. There were examples in the past of delegation to bishops of the faculty to grant the dissolution of the ratum, and even theoretically nothing prevents the pontiff from exercising his vicarious power through others; nevertheless, according to the more common opinion, bishops do not have ordinary power over this subject.

Regarding the scope of pontifical power in the dissolution of the ratum, can. 1119 determines: "the unconsummated marriage between baptized persons or between one baptized party and another unbaptized party is dissolved...". Consequently there can be dissolved: the ratum marriage between baptized Catholics; the unconsummated mixed marriage; the legitimate marriage that was consummated and then became ratum through the Baptism of both spouses; the marriage contracted with a dispensation from disparity of cult; the marriage of two non-Catholics, one of whom was baptized outside the Catholic Church (cf. can. 1070 § 1); the marriage of two spouses, one of whom is converted but does not wish to avail himself of the Pauline privilege, nor to cohabit peacefully, in favor of the unbelieving spouse (at least according to the more common opinion). This dispensation is given upon the request of both parties or of one party alone, even if the other is opposed (can. 1119). To them alone belongs the right to request it (can. 1973), but according to a not improbable opinion it is admitted that, in special cases, there may be a just and proportionate cause for dispensation even when both spouses are unaware of the dispensation or declare themselves opposed to it.

3. Conditions required for obtaining the dispensation. Manner of granting it. — a) Just and proportionate cause. — Since this concerns a bond indissoluble by natural and divine law, from which the Roman Pontiff can dispense only by vicarious power, the concurrence of a just and proportionate cause is necessary, so that the exercise of the power held may be for the edification and not the destruction of the Church.

The cause must be reasonable and grave: it is not required, however, that it be of public utility. Among the just causes admitted as legitimate by practice are irremediable discord of minds, fear of scandal, of quarrels, civil divorce or legal separation, semi-full proof of fear, of impotence, etc.

b) Non-consummation. — A marriage is said to be unconsummated if the conjugal act has not taken place between the spouses. This act is the conjugal copula, through which the unity of the flesh is brought about between the spouses (Gen. 2:24; 1 Cor. 6:16): such unity is not obtained by incomplete acts that have taken place between the spouses. Only that copula which considers the human action performed according to the physical laws of nature is consummative of marriage (therefore not the onanistic copula, nor so-called artificial fertilization), even if it has no actual regard for the generation of offspring. From this it follows that not even for the external and judicial forum is the conception of offspring in every case a peremptory and decisive argument for consummation. For the consummation of marriage the act must take place after its celebration. Therefore a fornication or adulterous relationship before the marriage is not consummation. A presumption founded on what commonly happens, given the ordinary circumstances, establishes that, once the celebration of the marriage has occurred, if the spouses have cohabited, consummation is always presumed, until the contrary is proved (can. 1015 § 2).

The Church, benignly assenting to the request of the spouses (the one who asks is called the petitioner, the other party the respondent), examines their case in the external forum, to see whether there exists proof of the non-consummation of the marriage, which is based on a twofold argument: the moral argument and the physical one.

The ascertainment is made by means of a special administrative process that is conducted especially according to cann. 1976-82 and the decree Catholica doctrina of the Sacred Congregation of the Sacraments, 7 May 1923 (AAS, 15 [1929], p. 389 ff.), supplemented by the Instruction of 27 March 1929 (ibid., 21 [1929], p. 490 ff.) of the same Sacred Congregation and by the decree of the Holy Office of 12 June 1942 (ibid., 34 [1942], pp. 200-202). In earlier law, specific norms for the dissolution of the ratum were contained in the Instructions of the Sacred Congregation of the Council, 22 Aug. 1840 and of the Holy Office in 1858 (P. Gasparri, CIC Fontes, IV, Rome 1926, nos. 846, 1976); besides other generic prescriptions, to be found in documents concerning matrimonial processes in general.

The arguments that serve to discover the truth in these cases are principally: 1) the sworn confession of the two spouses, which forms only the beginning and the basis in favor of the non-consummation of the marriage (can. 1975 § 2; reg. 50-57); 2) the deposition of the so-called witnesses septimae manus (normally 7 on one side and 7 on the other, chosen preferably from among blood relatives and relatives by marriage), and that of witnesses introduced ex officio (predominantly witnesses de scientia) or at the request of the parties: a deposition constituting an argument of credibility that adds value to the depositions of the spouses (cann. 1975 §§ 1-2; reg. 58-63, 66-74); 3) the corporal examination made by experts in the manner determined by the CIC (cann. 1976-81) and by the Instruction (regs. 84-95), unless from the circumstances it appears useless. This examination must detect that anatomical state of the body in general and of the genital organs in particular which is proper to a woman who has not yet had complete carnal union. It can also be extended to the man in cases of suspected impotence (reg. 84 § 2); 4) authentic documents, public or private, even extra-judicial, of any kind, that explain and corroborate the depositions made (reg. 75-78); 5) indications and presumptions (can. 1825; reg. 65, 79-83), which can be slight, grave and most grave.

The Holy See, while reserving to itself the granting of the dispensation, ordinarily entrusts the instruction of the process to the bishops competent by territory (the instruction is conducted by a single judge with the intervention of the defender of the bond and a notary [cann. 1966-67, reg. 21-30] and concludes with the vote of the bishop) and the examination, depending on the case, to the Sacred Congregation of the Sacraments, in the normal course (can. 249 § 3), to the Congregation for the Oriental Church (which has issued its own instruction on the matter, dated 10 June 1935: AAS, 32 [1935], p. 333 ff.), if one or both parties belong to the Oriental rite (can. 257 § 2), to the Congregation of the Holy Office, in the case that at least one party is non-Catholic (can. 247 § 3: reply of 18-27 Jan. 1928, AAS, 20 [1928], p. 75), to a special commission, establishable according to can. 1962, to the Tribunal of the Sacred Roman Rota (can. 249 § 3) always by delegation, at least ex iure, according to can. 1963 § 2 (some authors do not exclude recourse also to the Sacred Penitentiary, through the authority that had already instructed the process, in the case of a truly occult fact, which cannot be dealt with in the external forum: cf. can. 285 § 1).

If during a nullity process, whether on grounds of impotence or on another title, a very probable doubt of non-consummation should incidentally arise, the spouses are granted the faculty to request the dispensation from the ratum, and the judge, in that case, benefits from a delegation a iure for the instruction of the case (can. 1963 § 2: reg. 3-4). The rescript is issued in gracious form (thus being executive in itself) by the prefect of the Sacred Congregation of the Sacraments or by another cardinal who replaces him, and by the secretary or undersecretary of the same Sacred Congregation (reg. 102). If the circumstances set forth do not correspond to reality, the pontifical dispensation is null, the marriage is not dissolved, and all marriages eventually contracted thereafter have no validity (reg. 103, can. 41).

The rescript of dispensation from the ratum carries with it a particular concession: the dispensation from the impediment of crimen (v.) in the form arising from adultery with a promise or with an attempt at marriage (can. 1053: reg. 104, deccr. Sacred Congregation of the Sacraments, 3 June 1912). The effect of the dispensation is the dissolution of the bond and the freedom to contract anew, except in the case of the addition of the clause forbidding the passage to another marriage in regard to the spouse doubtfully impotent (vetito viro - vel mulieri - transitu ad alias nuptias). All the other juridical effects follow, but ex nunc (from the moment of the dissolution by the Roman pontiff), not ex tunc.

c) The dispensation from non-consummated marriage in Italian concordat law. - The Italian State recognizes the competence of the ecclesiastical tribunals and dicasteries in matters of dispensation from the ratum. For execution, the measures, with the relative decrees of the Supreme Tribunal of the Signature, must be transmitted to the Court of Appeal having territorial jurisdiction, which by ordinance will render them executive for civil effects, ordering that they be annotated in the registers of the civil status, in the margin of the act of marriage (Concordat with Italy, 11 Feb. 1929, art. 34: law of 27 May 1929, no. 847, at art. 17).

The recognition is extended also to civil marriages contracted before the entry into force of the aforesaid law (ibid., art. 22), requiring however in these cases (and here is the contrast with the canonical norms) the petition of both spouses. It must further be noted that art. 34, like the Italian implementing law, speaks only of dispensation "from the ratum and non-consummated marriage." Nevertheless the doctrine, now that some contrary voice has been dispelled, is agreed in including in that wording also the dispensation of a marriage that is only non-consummated, without being ratum, and the dissolution by effect of solemn religious profession (cf. A. Piola, Lo scioglimento del M. per inconsunzione, in Diritto ecclesiastico, 14 [1934], pp. 272-73, 274 note 9, where the contrary authors are also cited). Moreover, although the civil law does not expressly specify the time at which even the civil marriage must be considered dissolved, the dissolution of the latter must be considered as having occurred simultaneously with the canonical one and not from the date of the measure of the Court of Appeal, because the Italian law cannot limit the efficacy of the measure of the Holy See (cf. C. Rebuttati, L'ordinamento matrimoniale concordatario, in Diritto ecclesiastico, 50 [1939], p. 539; contra: M. Falco, Corso di diritto ecclesiastico, II, Padua 1938, pp. 219-20).

Other controversies have arisen in Italian jurisprudence on the matter. A first one concerns the possibility of the guardian of a person interdicted for mental infirmity or of the curator of an absent person presenting the petition required for the executability of the pontifical dispensation for civil effects. A large part of the doctrine is contrary, given the highly personal character of the faculty that the spouses have to forward a petition for dissolution (art. 22 of the cited law), but there is some contrary case law (Court of Appeal of Bologna, Dec. 1934, in Diritto eccles., 46 [1935], p. 22). Another controversy concerns the possibility of the spouses revoking the consent previously expressed in the petition to the Holy See, at the moment of the filing of the formal petition to the Court of Appeal, thus halting the executability of the judgment (cf. C. Rebuttati, op. cit., p. 541 ff.).

It has also been asked whether the petition of both spouses is required only to obtain executability in voluntary jurisdiction, there remaining the possibility for the sole requesting party to demand it in adversarial proceedings against the other. The distinction, denied by some, is reasonably accepted by others (cf., e.g., L. Capalti, La funzione giudiziaria negli effetti civili del M. pre-concordatarii, in Foro italiano, 55 [1930], p. 579 ff.; contra: F. Vassalli, Il foro civile e il foro eccles. nelle questioni di nullità..., in Riv. di dir. proc. civ., 7 [1930], 11, p. 310 ff.). It has then been asked whether the petition of the spouses must be addressed directly to the Court of Appeal or may also be transmitted to it by the ecclesiastical authority (in this second sense: L. Capalti, Istanza di parte e trasmissione d'ufficio negli effetti civili del M. prec., in Diritto eccles., 41 [1930], p. 453 ff.; contra: A. C. Jemolo, Tribunali della Chiesa e tribunale dello Stato nel regime degli Accordi Lateranensi, in Archivio giuridico, 102 [1929], p. 138 ff.).

Italian jurisprudence still does not know how to give an exact account of the nature of the dissolution of a non-consummated marriage, which, being new to it, cannot be reduced to similar institutions of civil law. Certainly such a dispensation cannot be considered as a cause declaratory of nullity, nor reduced to dissolution by death, nor assimilated to a decree of divorce; but it is to be considered as an institution of its own, as it is considered by the Church in its CIC. It follows as a consequence that there must be attributed to it that nature and efficacy proper to canon law, without resorting to analogy with other similar institutions.

Also the questions about effects, on which different orientations have arisen both in jurisprudence and in doctrine, must be resolved in the light of these principles, so as not to fall into illogicality and incongruities. Thus it will be necessary to conclude that offspring born extra torum, before the dispensation from the ratum, retains the character of adulterine and therefore is not recognizable through a subsequent marriage, whereas that born of extramarital relations after the granting of the dispensation is certainly recognizable (cf. cann. 1116, 7053); that the donations propter nuptias of a marriage dissolved by dispensation are recoverable under art. 785 of the Italian Civil Code because they were made in anticipation of a lasting and indissoluble marriage, which comes to be lacking. The same will be said of donations between spouses before the dispensation, under art. 781 of the Italian Civil Code. The fruits of the dowry also seem recoverable from the outset, whereas the registration tax paid for allowances made in consideration of the marriage does not seem to be.

In another field, in the penal sphere, it will have to be said that the carnal union with another person, bound by a valid marriage later dispensed, constitutes the crime of adultery or of concubinage (art. 559-560 of the Italian Penal Code): the same will be said for the crime of bigamy (art. 556). It will be said that the crime of violation of the obligations of family assistance (art. 570 of the Italian Penal Code) subsists if committed in the time between the celebration of the marriage and the dispensation.

Pietro Palazzini

VIII. USE OF MARRIAGE

1. Principles

The use of marriage, even after original sin, notwithstanding the fervor of the concupiscence that accompanies it, is entirely honorable (cf. Gen. 1:28; cann. III, 1081 § 2, 1015 § 1).

The objective rectitude of such use is necessarily subordinated to the intrinsic purposes of marriage and to the hierarchy of those purposes. Therefore, since the procreation and education of offspring are at the basis of the order established by God for the union of the two sexes, everything that proves directly contrary to this order, by depriving the conjugal act of its natural tendency toward generation, is intrinsically unlawful, and therefore justifiable for no reason. On the contrary, where this order is respected, the act is not unlawful, even if infertile, since it can equally attain the other purposes that justify it.

In this regard, it must in fact be borne in mind that what is imposed on man is the observance of the order, not the attainment of the end toward which it tends: this indeed depends not only on the action of man, but also on that of nature, which is not only not subject to the individual's will, but many times escapes even his knowledge.

Objective consideration is not the only thing that influences the concrete ethical evaluation of the use of marriage in individual cases: as in all other activities of man, it is necessary to bear in mind the circumstances of the act; from the subjective aspect, the consideration of the end is preeminent.

2. Some applications

At the request of the other spouse, one is obliged to render the conjugal debt under pain of grave sin (I Cor. 7:3); refusal is only a venial sin (unless the other spouse is exposed to the danger of incontinence), when the requesting party easily renounces his or her request, or the rendering is only deferred for a short time, or the refusal occurs rarely. Moreover, at times, refusal can be legitimate, given the existence of certain excusing causes, such as voluntary adultery not condoned by the requesting party, grave neglect in the obligations of maintaining the family, the lack even temporary of the use of reason, exaggeration in requests.

In the use of marriage, one cannot fail to take into account, also by reason of its primary purpose, the physical health of future offspring and the rights of offspring already conceived. The judgment in individual cases must be made taking all circumstances into account.

It can, in general, be said that the graver the danger and the harm that is feared, the graver must be the cause that justifies its permission. Thus, other conditions being equal, the probable harm to offspring already conceived weighs more heavily on the ethical evaluation of the act than the probable harm to the future product of conception; and this both because of the very uncertainty of the latter, and because one cannot speak of injuries to the rights of one who does not yet exist; indeed, if one were to take into account solely such a future subject, one could, with regard to him, apply the principle melius est esse quam non esse. But there is also the health of the stock to take into account, that is, the common good; and whenever the future offspring can be provided for in a better manner, the very primary purpose of marriage requires that this be attended to.

Another circumstance to be evaluated for the right use of marriage is the danger of harm to the health of one of the two spouses. Even in this case, in which the right deriving from the mutual traditio proper to marriage is not urgent, the concrete solution of the countless situations that can arise must be sought in the prudent application of the principles that govern human activity and define its responsibility. Above all, it is necessary never to lose sight of the hierarchy of values and the order of charity.

A question much debated in recent times is that concerning the lawfulness of so-called periodic continence, that is, the use of marriage reserved to the periods or cycles that, according to certain calculations and particular theories, are foreseen as infertile (agenesic time); on this point v. STERILITÀ.

Of a quite different nature is temporary continence, suggested by the concordant desire of the spouses to devote themselves more freely to prayer, to which the Apostle's discreet counsel refers, followed, however, immediately by the prudent reminder of the concrete and ordered reality of life ("but then be together again as before"), so that what was ordered to the perfecting of the spirit may not turn into temptation (I Cor. 3-6). On the lawfulness of artificial insemination, v. the appropriate entry. On the lawfulness of the use of marriage in case of doubtful validity of the contract, v. CONVALIDAZIONE; in case of a vow, v. under this headword.

3. Sins of spouses

Everything that is not effectively ordered or is not objectively orderable to the primary end established by God for the union of the two sexes constitutes a substantial violation of the order and is therefore a sin. Since, on the other hand, this is an order essential for man, given that the preservation and propagation of the human race depend on it, the sin is grave, because it is directly and essentially opposed to charity.

The order can be violated either within the sphere of conjugal life and in contrast with its rights and its laws, or outside it (v. LUSSURIA). Within the sphere of conjugal life, all contraceptive, Malthusian practices constitute grave fault, whatever the means or manner used to render the union sterile. Their direct opposition to the primary end of marriage renders them intrinsically unlawful, and therefore unjustifiable, whatever the motive that suggests them (v. NEO-MALTHOSIANISMO).

As for the innocent spouse, who not rarely suffers the sin rather than being its cause, he commits no fault if, for a truly grave reason, he permits the perversion of the due order, provided that the act is not intrinsically corrupted from the beginning, but derives its malice from the subsequent fraud of the other spouse, and provided that, mindful even in such a case of the laws of charity, he does not neglect to dissuade the spouse from sin. If, on the other hand, the act were intrinsically vitiated from the beginning, it is his duty to oppose it positively and to repel the snare no differently than any other assault on virtue.

Any extra-conjugal experience on the part of one of the two spouses, even if incomplete, is a grave fault and constitutes the specific sin of adultery (v.). And since the affection cannot be considered extraneous to marriage, that is, to the mutua traditio—indeed it is its spiritual and in a certain sense principal element—conjugal fidelity can be betrayed even only spiritually, through affective relations of a non-sexual order with other persons (spiritual adultery).

Pietro Palazzini

V. LITURGY OF MARRIAGE

In the ancient Christian Church there was no special rite for the celebration of marriage. The betrothal and the nuptial ceremonies took place without the active intervention of a priest, within the family, with the rite used in civil life. Only, in place of the pagan sacrifice, the Mass and the solemn nuptial blessing were added in the presence of the faithful. Later, the marriage contract was made with the intervention of the priest, first outside, then inside the church, an innovation which brought in its wake the ancient nuptial rites. In the current rite, therefore, two parts are distinguished: the first consists of the rites that accompany and solemnize the manifestation of consent, the second, complementary, is composed of the Mass and the blessing.

Already St. Ignatius the martyr desires that the marriage of Christians be made with the counsel of the bishop (according to H. Lietzmann, also with his active intervention). Tertullian (Ad uxor., 11, 8) clearly distinguishes the approval of the marriage on the part of the Church ("Ecclesia conciliat"), the offering of the spouses ("confirmat oblatio") and their blessing ("obsignat benedictio"), that is, the family betrothal approved by the Church, and the Mass with the special nuptial blessing; he alludes to the betrothal ring, to the kiss of the spouses, to the crowning and to the escort to the house of the spouse. St. Ambrose speaks of the veil (flammeum) that is imposed on the bride. From this veil, the action is called "velatio nuptialis," and even the word "nuptialis" seems to derive from this action "nubere" ("obnubilatio"). The Sacramentaries offer not the rites, but the prayers of the nuptial Mass and of the blessing; for example, the so-called Sacramentarium Leonianum, the Gelasianum vetus, contained in cod. Reginensis 316 of the Vatican Library.

The first description of the rites is found in the reply of Pope Nicholas I (d. 867) to the Bulgarians (Responsa ad consulta Bulgarorum, 3). A distinction is made between the preliminary acts and the complementary acts. The preliminary acts, which took place at home, contain three things: a) the betrothal, that is, the mutual promise of the future M., the manifestation of the consent of the betrothed and of the parents, b) the delivery of the arrha, that is, of the ring from the groom to the bride, c) the signing of the agreements in the presence of the witnesses, the delivery of the nuptial tablets or the assignment of the dowry. The complementary acts, or the properly nuptial parts, are: a) the celebration of the Mass before the betrothed, who take part in the offering and in the Communion, b) the blessing together with the address, c) at the exit from the church, the crowning. All these rites correspond well to the rites of the ancient Romans, that is, to the rites of the betrothal, of the preparation for the M. and to the rites of the M. itself. The Church accepted the customs already in use, purifying them of what was unbecoming and making them more august. But these rites were only the solemnity of the M., the solemnization of the M. contracted outside the church by "the sole mutual consent" (Nicholas I).

These rites are observed even today in the celebration of the M., with this difference, that the rite of the M. today includes both the rites of the betrothal and those of the wedding. Of particular importance is the manifestation of consent, the only substantial element of the M. In ancient times, both pre-Christian and Christian (for example, by Pope Nicholas I), consent was given among the ceremonies of the betrothal, not among those of the wedding. But after the year 1000 (it is not possible to specify when), people began to introduce the explicit manifestation of consent into the act of the M. itself, with a certain variety: either the contracting parties pronounced (either alone or together with the blessing priest) the consent, or the priest questioned (once or three times) the contracting parties and they answered. To the questioning and answering of the contracting parties the priest added a solemn formula of ratification in the name of God: "Ego coniungo vos in matrimonium in nomine..." (E. Martène, Ordo Rotomag. sec. XIII, in Antiquae Ecclesiae ritus, II, p. 367).

A rite already used by the ancients, not mentioned by Pope Nicholas I, was the joining of the right hands. In Tob. 7, 15 Raguel joins the hands of Tobias and Sarah; among the Romans, on the day of the solemnity of the m., the "pronuba" told the spouses to give each other their hands. Even today, in the Church, at the manifestation of consent, the priest tells the spouses to give each other the right hand; then, according to some rites, he wraps them with the stole, pronounces the solemn words of ratification and sprinkles them with holy water. The delivery of the ring, among the Romans and also under Pope Nicholas I, being part of the betrothal, passed among the ceremonies of the M., before or after the consent; the priest blessed the ring, handed it to the groom to slip it on the bride's finger and then ratified the consent. In some regions not only does the groom put the ring on the bride, but the bride also on the groom.

The intervention of the Church in the celebration of the M. began when the tutelary M. ceased, that is, when the bride herself could give herself in M. without the intervention of the natural tutor, that is, of the father. A threefold phase must be noted: the M. before or outside the church in the presence of a priest who recited a prayer, then with the intervention of the priest as elected tutor instead of the natural tutor, and finally with the intervention of the priest to establish and request the manifestation of consent. From the 12th century local synods or councils (Trier 1227, Prague 1350, Magdeburg 1370) prohibited lay M.s without the intervention of the Church. Finally the Council of Trent prescribed the assistance of the parish priest; the new CIC (can. 1095 § 1 ad 3) orders that the parish priest ask for and receive the consent ("requirant excipiantque contrahentium consensum"). The act of M. is composed of two parts: a) the questioning by the priest regarding the manifestation of consent, b) the consent itself of the spouses. The betrothal ring has become the nuptial or conjugal ring. Then follow the religious and complementary parts, the Mass and the solemn nuptial blessing. Previously the votive Mass was said, for example, of the Most Holy Trinity, adding to it the prayers proper for the spouses, then the votive Mass pro sponsis. The nuptial blessing, a prerogative of the bride's first marriage, is already found in the very ancient Sacramentaries; it took place after the Pater noster. During the blessing the veil was imposed on the bride, the most conspicuous ceremony of the M. among the ancient Romans, retained also by Christian spouses, while afterwards it yielded the first place to the delivery of the ring. And also the very ancient ceremony of the crowning of the spouses with flowers disappeared; it was performed after the Mass, when the spouses came out of the church. Today it lives on in the flowers with which the bride is customarily adorned when she presents herself at the church. After the Benedicamus Domino, the priest pronounces once again a special blessing on the spouses for their earthly and eternal happiness. Where special or local rites have been preserved in contracting the M., they may be used.

An ancient rite is the blessing and the use of the nuptial drink, presented to the spouses as a symbol of Christian charity. In the evening of the nuptial day their bridal bed is then blessed, using since the 10th century a formula that is already found in the Missal of Bobbio (8th century).

Pietro Siffrin

MARRIAGE IN THE ORIENTAL LITURGIES

In the marriage rites of today one still clearly sees distinguished, although joined together, the two ancient parts that compose them: the first may be called betrothal, espousal, and is characterized by the giving of the ring; the second is the wedding with the particular rite of the crowning.

In ancient times, and still recently in the Semitic world, these two parts were celebrated separately, and a very long time, even many years, could elapse between the two ceremonies. And that betrothal was not a rescindable promise of a future M., but with that rite the beginning of the M. was had, already with its property of indissolubility, while the right of cohabitation was obtained only with the rite of the crowning. Even before proceeding to the rite of the ring, the priest assured himself of the consent of the spouses; in the West this expression of consent followed by the rite of the ring became the sacramental rite, because the consent of two Christians constitutes the contract raised to the dignity of a Sacrament, and the nuptial blessing given during Holy Mass was considered as a non-obligatory sacramental. On the contrary, in the East even the crowning has always been regarded at least as a conditio sine qua non of the Sacrament, and the new Oriental Code (can. 85 § 2) takes account of this concept where it requires for the validity of the M. the intervention of the priest advisentis ac benedicentis (cf. AAS, 41 [1949], p. 107).

In the Byzantine rite, according to the Euchologion of the Greeks, the first part is composed of the great collect with special petitions followed by two prayers, then by the giving of the rings with a formula, and by a final prayer. The second part also begins with the great collect, with other special petitions, followed by three nuptial prayers; then the priest imposes the crowns with a formula and gives a triple blessing; after this there is a kind of Mass of the Presanctified, that is: Epistle, Gospel, Litanies, Pater Noster with a prayer of inclination, in ancient times the admonition: « Praesantificata sanctis » with Holy Communion, today the partaking of a cup of wine; there follows the procession around the table before which the ceremony is performed, then the deposition of the crowns, which in ancient times was done on the eighth day after the M.; then two more prayers, the kiss of the newlyweds and the dismissal.

The Euchologion of Benedict XIV (Rome 1754), in the initial rubric, prescribes that the Priest question the spouses about their free consent. The Trebnik of the Russians and Serbs gives the formula of this question but places it at the beginning of the second part (the first time in the Trebnik of Mohyla, Kiev 1646). In the Trebnik of the Ruthenians (from the reformed edition of Lviv 1720 onward) the structure of the rite was overturned (suppression of the first part; but an abbreviated rite of the ring is inserted among the nuptial prayers and an oath on the book of the Gospel is added before the crowning); the Malì Trebnik of Rome (1946) restored the clear division between the two ancient parts.

In the other Oriental rites, although very different from one another, one can observe a development, which today seems exaggerated, of prayers and hymns in the ceremony of the crowning, but which well highlights the solemnity of this act constitutive of the Christian family.

Alfonso Raes