II. On the Nature and Properties of Marriage

What is marriage? - Marriage can be considered in two ways, namely as contract and as sacrament, since it is both. Marriage as contract is an agreement by which a man and a woman legitimately hand over to each other dominion over their bodies in order to acts of themselves apt for the generation of offspring, and oblige themselves to an undivided society of life. Marriage as sacrament is defined: a sacrament of the new law, conferring grace for sanctifying the legitimate union of man and woman, and for piously receiving and holily educating offspring. Trent, sess. 24, Doctrine on the sacrament of marriage, c. 1; Decree of the Holy Office, Lamentabili, July 3, 1907, prop. 51; L. 879, 880; St. Thomas, Suppl. q. 42, q. 44.

Resolutions: Therefore marriage is licit; and its use is licit. It is not, however, necessary for individuals, since it is necessary from its intrinsic nature only for the perfection of the multitude, and not for the perfection of each one. St. Thomas, Suppl. q. 41, a. 2, 3; E. M.

What is the division of marriage? Marriage can be considered both as regards the union of man and woman, and as regards the bond which arises from it. Hence it is called first in fieri or in facto esse. Marriage in fieri is called the actual contract itself, which is perfected by the mutual consent of man and woman. But the marriage persisting in the bond, which comes from the matrimonial contract, is called in facto esse.

Moreover, marriage is distinguished as legitimate, ratified, and consummated. Legitimate marriage is called that which is contracted according to the norm of natural and civil law, but nevertheless does not have the ratification of the Church or the notion of sacrament; such as was formerly entered in the law of nature and the Mosaic law, and is also now entered among Jews and Gentiles. - Ratified marriage is that which is contracted between Christians entangled by no impediment, between whom, however, after the contract, conjugal commerce has not yet intervened. Ratified, because not only nature and civil law, but also the Church approves it and holds it ratified. C. Quanto 7, de Divort. Consummated marriage is called that which has been completed by the intercourse of the spouses; this must be understood not only of ratified marriage, but also of merely legitimate marriage. That marriage may be called consummated, two things are required: 1. that the carnal union be perfect and sufficient for generation, so that, as is had in C. Verum 2, de Conv. coniug., the spouses have been made together one flesh. Therefore that would not suffice from which, although the bodily integrity of virginity had been taken from the woman, nevertheless, because suitable effusion of male seed was lacking, generation could not follow. 2. That legitimate consent or ratified marriage preceded a union of this sort. Therefore intercourse had before the matrimonial contract does not bring it about that the marriage afterward contracted is judged consummated, and therefore neither indissolubility nor the other effects of consummated marriage will be produced. Whence you conclude that he who, bound by a vow of religion, has violated a woman can marry her and then, unless another cause stands in the way, enter the vowed religion, if after he married her, he did not know her again. - Schmalzgrueber, l. 4, t. 1, n. 227, 228.

There is moreover another distinction of marriage into true, presumed, and putative. - True is called that which has really and validly been contracted, and is proved as such by some one of those arguments by which other affairs also are customarily proved, such as the testimony of the parish priest or of others, the book of marriages, the confession of the spouses, long cohabitation of an honorable woman. Lighter proofs suffice when the question concerns sustaining a marriage than when the matter is of dissolving it. Schmalzgrueber, l. 4, t. 1, n. 233.

Presumed is called that which is presumed by law; and this presumption of law has place especially in a threefold case. And 1. when, in places where the Tridentine decree concerning the form of marriage was not in force, after betrothals entered absolutely between two capable persons, carnal intercourse followed between them; for then consent concerning the future is presumed to have passed into consent concerning the present, and intercourse is presumed to have been admitted with conjugal affection. Schmalzgrueber, l. 4, t. 1, n. 115 ff.; Pirhing, e. t., n. 27; Barbosa on Cap. Is qui, e. t., n. 3 ff.; St. Thomas, Suppl. q. 46, a. 2. - 2. When after betrothals entered under a condition, before the event of the same, carnal commerce intervened between the spouses; for the Church, with abstraction made from the aforesaid Tridentine Decree concerning form, then presumes that the spouses receded from the condition, and therefore wished to contract marriage purely and absolutely. This is clear from C. Per tuas 6, de Cond. apposit. - 3. When after betrothals concerning the present invalidly contracted by prepubescents, in whom malice does not supply age, signs of ratified consent intervene between the same after they have attained puberty, such as not only carnal intercourse, but also kisses, embraces, cohabitation, etc. This is clear from C. unic. section idem quoque, de Desp. impub., in 6. Nevertheless this case also can have place only where the aforesaid Tridentine Decree is not in force. Cf. Schmalzgrueber, l. 4, t. 1, n. 234.

But by the Decree of Leo XIII, February 15, 1892, this presumption of law, which at the same time was a presumption de iure, admitting no contrary proof, was abrogated. By this Decree, indeed, the presumption from carnal intercourse is explicitly abrogated. But consequently and implicitly the presumption from other signs, which are of lesser force, must be judged abrogated. The presumption, however, is abrogated. Wherefore, if intercourse, or other signs, really express consent concerning the present from the real intention of the contracting parties, the marriage will still be valid in places where the Tridentine Decree is not in force. - C. H. 83.

Moreover, in the present day from the above-cited Decree Ne temere, this presumed marriage can no longer have place, since for its validity it must altogether be contracted according to the form established in the same Decree, except in those places and among those persons whom the aforesaid Decree does not regard.

Finally putative marriage is called that which is believed to have been legitimately contracted, although nevertheless in the reality of the matter it is null because of some hidden impediment. Concerning this the doctors therefore inquire, so that it may be clear when it has the force of legitimating offspring received from it and other effects of law. Now two things are necessary for this: 1. that it be contracted in good faith by at least one of the spouses, who was ignorant of the impediment.

Thus in C. Ex tenore 14, Qui filii legit. This good faith indeed neither an error of law nor doubt concerning the value of the marriage excludes, as Covarruvias proves, de Spons., p. 2, c. 8, section 1, n. 9. But in doubt this good faith is presumed. 2. That the marriage was contracted publicly and in the face of the Church, that is, before the parish priest and witnesses, and with the denunciations premised, or at least dispensed. Cf. C. fin., de Clandest. desp., section 1.

Another distinction of marriage into canonical, political or civil, and of conscience must also be remembered. They call that marriage canonical in which all things concur which are prescribed by the sacred canons for marriage. - They call that marriage political or civil in which those things also concur which are required by civil law, namely certain solemnities, dotal agreements, etc.; without which marriage is indeed canonically valid, but nevertheless is reputed illegitimate civilly, and therefore in the civil forum it has no action and lacks civil effects, for example, as regards the paternal power of the husband and wife, as regards the succession of children, as regards the dowry of the woman, etc. Marriage of conscience, or morganatic marriage, is called the legitimate union of a man with a woman of inferior condition, entered by this agreement: that the wife and the children born from it are content with the nuptial gift or another certain portion, destined at the time of betrothals, and abstain from the remaining ancestral and paternal goods, together with titles, dignities, and insignia. Schmalzgrueber, l. 4, t. 1, n. 236 ff. - But marriage of conscience or occult marriage is called that which is contracted secretly before the parish priest, or another priest deputed by the Ordinary or parish priest, and two familiar witnesses, who are bound to preserve secrecy. Marriages of this sort, and baptism conferred on children born from them, are noted in a secret book of marriages and baptisms. Care must be taken in them lest the marriage, which is occult, be held with scandal as shameful concubinage, lest the children be judged illegitimate and be deprived of their legitimate portion, and lest their education be neglected. Wherefore it cannot be done without the faculty of the Bishop. Benedict XIV, Const. Satis vobis, November 17, 1741; E. M.

Clandestine marriage: It is marriage celebrated without previous banns; this, without due permission, is illicit. It is also marriage celebrated without the parish priest, or another priest legitimately delegated, and witnesses; and this now, as regards Catholics, is altogether null, unless there is a positive exception, according to the Decree Ne temere. From it no impediment of public honesty is had.

What are the essentials of marriage, insofar as it is a contract? As all contracts, so marriage consists of thing, cause, and consent.

The thing is what is mutually given and accepted: power or right over the body, for coming together, in order to generation. Therefore the commingling itself does not pertain to the essence, but only to its consummation. Hence spouses can licitly abstain from the use of marriage, and wish that no more children be born than they can nourish, provided they do not positively impede them, nor procure abortion.

The cause is the procreation and education of offspring, the primary end of marriage, and the mutual help of the whole of life, the secondary end of marriage, Gen. 1:28. After the sin of Adam, a remedy also for concupiscence is another secondary end of marriage, 1 Cor. 7:2, 5, 9. The generation of offspring is from the primary institution of marriage, the remedy from the secondary institution, which presupposes the former. St. Thomas, Suppl. q. 42, a. 2; C. G., l. 4, c. 78. Hence marriage is licitly contracted as a remedy for concupiscence, provided offspring is not positively excluded, and therefore with the primary end of marriage presupposed, namely the generation of offspring, without which end marriage cannot exist. For that remedy is not to be sought in another thing, but in marriage. - And the same must be asserted of the use itself of marriage for calming concupiscence. St. Thomas, Suppl. q. 49, a. 5, ad 2, opines the contrary. But St. Alphonsus 882 departs from him, and rightly, since this is drawn by a more proper interpretation from the text of St. Paul cited. Likewise it is licit to contract marriage for an honest extrinsic end, for example, to reconcile the peace of families, to preserve love among blood relatives, to preserve the honor of the family, to protect health, etc. The reason is that "this is not disorder, to choose one of the honest secondary ends before the primary end, provided that this is not excluded. But otherwise, if the end is not honest, namely if it is of pleasure, or of desire for riches, or of vain honor." L. 883. Indeed for every right operation it is not necessary that the principal end to which that operation is ordered always actually be intended. It suffices actually to intend other ends to which that operation also by its nature is referred, provided the primary end is not excluded, or something is not positively done contrary to it, or they are subordinated to the primary end, so that another secondary end is not intended as principal, nor the others subordinated to that secondary end.

Finally it is perfected by consent, namely the true will of each concerning the same thing, i.e. the right of coming together, by handing this over on both sides, marriage is contracted. The right of coming together, namely in order to generation. And because marriage is perpetual, if one of them has the purpose of contracting it only for a time, from defect of legitimate will, although not manifested externally, nothing will be done. Wherefore marriage can indeed be given without the good of offspring and without the good of faith, or fidelity, according to themselves; because these two goods of marriage, according to themselves, regard the use of marriage, and the being of a thing does not depend on its use; but marriage cannot be given without the good itself of sacrament or inseparability; for this "pertains to marriage itself according to itself, because from this very fact, that by the conjugal pact spouses mutually hand over to each other power over themselves in perpetuity, it follows that they cannot be separated, and hence it is that marriage is never found without inseparability." St. Thomas, Suppl. q. 49, a. 3. - L. 879, 883; St. Thomas, Suppl. q. 41, a. 1; q. 42, a. 2, 4; q. 44, a. 1; q. 45, a. 1; q. 48, a. 1; q. 49; q. 54, a. 3; q. 58, a. 1, ad 3; 4 D. 2, q. un., a. 4; D. 26, q. 2, a. 4; Commentary on 1 Corinthians, Lect. 1; C. G. 146; C. B. 1325; E. M.

What sort of consent must there be? - Consent must be: 1. Mutual; for marriage consists in a contract, which is essentially the consent of two, or mutual consent. Whence if it is lacking on one side, it will be null. - 2. Concerning the present: because by a promise concerning the future only betrothals are made, not marriage. This is also deduced from C. Si inter 31, de Spons. et matrim. - 3. Deliberate and voluntary: because it is a contract concerning a grave matter, and therefore inducing a grave obligation; but no one is judged to impose a grave obligation on himself unless he consents freely and fully. This is clear from Canon Law, which invalidates marriages contracted from grave fear. - 4. Manifested by external signs, because every agreement among men must be known by some external sign; for agreement necessarily supposes mutual acceptance among those contracting. - St. Thomas, Suppl. q. 45; Lugo, Resp. Mor., l. 1, d. 42; E. M.

Must consent be expressed by words? R. In the negative as regards validity, because by natural law in a contract it suffices that consent be expressed by some certain sign. C. un. section fin., de Despons. impub., in 6; C. Is qui fidem 31, de Spons.; C. Tuae fraternitati 25, de Spons. Wherefore it suffices that consent be externally manifested, for example, by the handing over and acceptance of a ring, and as regards the woman even by silence. L. 882, 887; St. Thomas, Suppl. q. 45, a. 2; q. 47, a. 3. - In the affirmative as regards liceity, because otherwise one would act against the Rubric and the custom of the Church. Yet it does not seem to exceed venial sin if words are not used; indeed shame or another reasonable cause would excuse from every fault. L. 888.

What is to be done if someone says that he consented fictitiously? - As regards the external forum, credence is not given to him, unless from the circumstances it is clear that he was either deceived by fraud or induced by grave fear to contract; for it cannot be supposed that he who freely entered marriage consented fictitiously. - As regards the internal forum, he who asserts that he consented fictitiously must be obliged to abstain from asking and rendering the debt until he has truly consented, and ordinarily also to place true consent, so that he thus repairs the injury inflicted on the other party. Ordinarily, because if the other party consents to separation, or if he himself was forced to contract, he is not bound to supply consent. But it suffices that the consent of the one party accede to the preceding and not revoked consent of the other. Wherefore, if someone before the parish priest and witnesses did not truly consent, he satisfies by consenting afterward.

Besides, the spouse who placed true assent is not obliged to believe the other asserting that he consented fictitiously, unless he confirmed it by oath; and therefore he would licitly ask the debt until the defect of consent was evidently proved. S. C. C., February 24, 1720; St. Thomas, Suppl. q. 45, a. 4, ad 2. But the obligation of entering marriage by true consent easily shows itself to be most grave, not only because otherwise one sins gravely against the reverence owed to the sacrament, but also because by injury a most grave damage is inflicted on the other party. Indeed since in the external forum fiction can be proved with very great difficulty, other nuptials are not permitted to the deceived party, and therefore this one thing remains to that party: either to enter Religion, or to remain unmarried in the world. - L. 887, 1113, 1114; Schmalzgrueber, l. 4, t. 1, n. 265 ff.

Does consent through a procurator suffice? - R. In the affirmative, as regards validity, provided the required conditions are present, because marriage has the whole nature of a natural contract. But any contract can be made through a procurator. - The conditions for contracting marriage in this way are: 1. that the procurator have a special mandate; that the mandate be concerning contracting with a determined person; that he execute the mandate by himself, C. fin., de Proc., in 6, unless he has had an express faculty for this; 2. that the one mandating has not revoked the mandate, neither only mentally, nor even tacitly, for example by celebrating betrothals with another; 3. that the procurator show the written mandate to the parish priest and witnesses: but it also suffices that the mandate be given orally; 4. that he contract marriage before the same, according to the Tridentine form formerly in force, and now also before the parish priest and witnesses according to the Decree Ne temere; it likewise matters nothing that the mandate is given to a man or a woman. For this neither removes nor changes the nature of mandate; 5. that he not exceed the limits of the mandate, if, for example, the condition required by the one mandating is that it be contracted with such a dowry, at such a time, etc. - In the negative as regards liceity, unless a very grave cause urges. The reason is that this mode of contracting is contrary to the ordinary practice of the Church, and marriages are scarcely made thus among any but Princes and Magnates. Hence the parish priest ought not by his own authority to bless marriages of this sort, as is clear from the practice of the Church and the Rituals. - L. 885, 886, 889; Sanchez, l. 5, d. 8, n. 24.

Marriage can likewise licitly be contracted by letter, which is read by the other party before the parish priest and witnesses, declaring at the same time his or her consent. And this also now after the Decree Ne temere. The invitation of the parish priest can well be made by an absent person through a letter, and through a letter read before the other party and witnesses the parish priest can seek the consent of the absent person, and likewise through a letter read before the same witnesses and the other party he can have the offered consent of the absent person and the accepted consent of the other.

Is marriage entered under condition valid? - It is certain that it is valid if the condition is concerning the past or the present, and is verified. The reason is that that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the sacrament. - If an honest and possible condition concerning the future is added, marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present.

But when the condition has been fulfilled, the marriage is valid without new consent, since a conditioned contract, once the condition has been fulfilled, passes into an absolute one, and by that very fact is valid by reason of sacrament, because among Christians the contract of marriage cannot be separated from the sacrament. Without new consent; although many deny this, and from St. Alphonsus 895 probably, it is safer to renew consent. Although the marriage is valid even if the contracting parties are ignorant that the condition has been fulfilled, because the existence of the condition does not depend on knowledge of it, nevertheless they cannot use marriage before receiving notice of its fulfillment; otherwise at least by will and intention they would commit fornication. - A condition impossible from the nature of the thing, or only in fact, is held as not added in the external forum, because in so grave a matter it is presumed not to have been added seriously. C. fin. 7, de Condit. apposit. But because presumption yields to truth, both for the external forum and for the internal forum those cases must be excepted in which the truth certainly opposes and prevails over the presumption. But if there is doubt, then the condition is held for both forums as not added, lest perhaps those who are legitimately joined be separated, and be joined illegitimately to others. - 5.

"But if the condition concerns a necessary future, as that the sun will rise tomorrow, then it is marriage; because such future things are already present in their causes." St. Thomas, 4 D. 29, q. un., a. 3, q. 3; L. Si pupillus 9, section 1, de Novationib. - L. 890, 892, 895; St. Thomas, Suppl. q. 47, a. 5; Schmalzgrueber, l. 4, t. 5, n. 37, 60 ff.

Is it licit to contract with conditioned consent? R. In the negative. Such a mode of contracting is illicit, especially if the condition concerns the future, unless perhaps, as St. Liguori 892 has it, there is a most urgent cause. The reason is that many and grave inconveniences can easily follow from such a mode of contracting, namely ambiguities, difficulties, and from them quarrels and scandals.

Is marriage entered under a shameful condition valid? - If the shameful condition does not repugn to the substance of marriage, the marriage is judged valid in the external forum; for in it the condition is held as not added. C. fin., de Condit. apposit. But because this rests on presumption, hence if from elsewhere it is certain that it was added seriously, and that consent in reality was not given except under its event, then certainly the marriage will be judged valid in neither forum unless the condition happens. But when the condition has been verified, as regards the internal forum it is controverted, as in other contracts. Ordinarily, however, it is not judged a condition sine qua non, but a mere purpose or promise independent of the matrimonial contract, and therefore consent is not judged suspended by such a condition unless this is altogether clear. Besides, in doubt one must always judge in favor of marriage. L. 891. - But the marriage is judged invalid in the internal forum if this condition repugns to the substance or essence of marriage, namely to its threefold essential good, that is, 1. the good of sacrament; 2. the good of faith; 3. the good of offspring; which would happen if the spouses, in contracting marriage, excluded perpetuity in marriage by making divorce, fidelity in marriage by not rendering the debt and by commingling with another, or the generation of offspring by positively impeding it. The reason is that by such a condition, whether added only interiorly in the intention of one or both contracting parties, or only exteriorly, either there is not had, or at least exteriorly there is not expressed, consent to true marriage, since the very substance or essence of marriage is taken away by force of such a condition.

But in the external forum, unless the condition is drawn into an express pact, the presumption is for the value of the marriage, since the cause is favorable and of the common good. - Therefore marriage is invalid, if such a condition repugnant to the substance of marriage is expressly added and drawn into a pact, in both forums, even if interior consent were present, because sufficient exterior consent would be lacking.

C. Si conditiones 7, de Cond. appos. - If the shameful condition does not concern the future, but the present or the past, according to the more common opinion the marriage is valid if the condition is verified, and is not valid if it is not verified. The reason is that such a condition is not properly a condition. L. Institutio 10, section 1, ff. de Condition. institution. - L. 881, 882, 891; St. Thomas, 4 d. 29, q. un., a. 3, q. 3; d. 31, q. 1, a. 3; Schmalzgrueber, l. 4, t. 5, n. 90 ff.; Lugo, de Sacr., d. 8, n. 129; E. M.

Resolutions: If the shameful condition does not affect the contract itself, but affects only the execution of the contract, because they do indeed wish to be bound by marriage, but do not wish to fulfill the offices of marriage, then they sin gravely, but the marriage is valid. - In places where a law of divorce exists, if knowledge of the law has itself antecedently as regards consent, i.e. if they contract for this reason, because they know that this is licit for them, and otherwise they would not contract, the marriage is invalid; but if it has itself concomitantly, because they have the general will of contracting, so that they would contract equally without such knowledge, the marriage is valid.

In the external forum the general will of contracting is always presumed, unless the contrary is proved, as Benedict XIV teaches, de Syn., l. 13, c. 22, n. 7, and as Pius VI declared, Letter to the Archbishop of Prague, July 11, 1789. - If marriage was indeed entered under a condition excluding the good of offspring, but one which is honest, namely under the condition of preserving chastity, the marriage is valid: for consent and object, which are altogether essential to the contract, are still had; for the object is the mutual handing over and power over one's own body. Yet others deny this. And Benedict XIV, l. c., n. 10, reports that a marriage of this sort was declared null by the S. C. C. in a certain particular case. And it seems thus to have to be held if by the aforesaid condition one renounces not merely the use, but the power.

"For that agreement, expressly drawn into a pact, by which the woman abdicated from herself power over the body of the man, and the man likewise power over the body of the woman, is openly contrary to the substance of marriage." Benedict XIV, l. c. And this certainly was verified in the aforesaid case decided by the S. C. - L. 881, 882; Lugo, de Sacr., d. 8, n. 131, 132; Collectanea S. C. de P. F., n. 1291, 1292, 1299, 1301, 1302.

"It must be noted here that a condition differs from a demonstration, cause, mode, and day, because a demonstration, or added cause, for example if someone says, I marry you, who are a virgin, or because you are a virgin, does not vitiate nor suspend marriage, even if the cause is false or shameful, even against the substance of marriage, as Sanchez, l. 5, d. 19, n. 2. For although he would not contract if he knew that she was not a virgin, nevertheless he then gives absolute consent, which is not impeded except by error concerning the substance, or concerning the substantial conditions of marriage. Nor does a mode suspend, if it is said, for example, I marry you so that you may serve me..., even if the mode concerns a shameful or impossible thing, I marry you so that you may kill, etc. The reason is that consent does not depend on a mode, as it depends on a condition. And even if, says Viva with Palaus, the mode is against the substance of marriage, namely, I marry you so that you may commit adultery, etc. But more probably Salmanticenses with Sanchez contradict this, because he who has an intention opposed to the contract does not seem to have the mind of contracting.

But whether an attached day suspends the contract, for example if it is said: I marry you after three days? Sanchez denies. But more probably Viva with Coninck, etc., affirm, because the one contracting then does not intend to place perfect consent except after the third day." L. 896. - St. Thomas, Suppl. q. 48, a. 2; Schmalzgrueber, l. 4, t. 5, n. 136 ff.; Sanchez, l. 5, d. 19, n. 2, 3.

What are the essentials of marriage insofar as it is a sacrament? The sacrament of marriage is not something distinct from the contract of marriage itself, but is the very contract of marriage itself, elevated by Christ our Lord to the being of a sacrament. Pius IX, Allocution, September 27, 1853; propositions 67 and 73 of the Syllabus given by Pius IX. - Hence it is clear that the contracting parties themselves are the ministers and subjects of this sacrament.

Florence, Decree for the Armenians; Trent, sess. 24, C. 1, de R. M. But the matter and form are contained in the contract itself. The remote matter is the bodies themselves or the right over the bodies of the spouses, to be mutually handed over in the contract of marriage in order to generation. But the proximate matter is the mutual handing over of bodies, which is perfected through words or signs expressing consent in the contract; and the form is the mutual acceptance of the contracting parties, expressed by words or signs. - Wherefore among Christians, laboring under no impediment, whether natural, divine, or canonical, there cannot be had a contract of marriage without at the same time having the sacrament of marriage; and conversely, the sacrament cannot exist without the contract. Among Christians, for unbaptized men are not capable of sacraments.

Laboring under no impediment, etc.; for although of itself every baptized human being is a subject capable of the sacrament of marriage, nevertheless accidentally many are barred from validly contracting marriage because of various impediments. - From the aforesaid mutual acceptance and handing over, moreover, the bond of marriage arises, namely the mutual right and obligation over bodies in order to generation, and therefore the union of husband and wife for one generation and education of offspring, and again for one domestic life. - L. 879, 880, 897-899; St. Thomas, 4 d. 26, q. 2, a. 1, ad 1; d. 28, q. 1, a. 3; Suppl. q. 44, a. 1; q. 45, a. 1, 2; q. 48, a. 1; E. M.

Resolutions: The marriage of unbelievers, although it is valid in the notion of contract, nevertheless is not a sacrament. St. Thomas, Suppl. q. 59, a. 2. Whether the marriage of a faithful person with an unbeliever, with the Pope's dispensation acceding, is a sacrament, some deny, others affirm. But a marriage contracted by unbelievers, when both spouses are converted to the faith, passes into a sacrament by the reception of baptism. - Heretics and schismatics who, in entering marriage, observe the laws of the Church as regards the substance of marriage, validly contract and are fortified with the sacrament. - All Christians who are altogether unwilling to receive the sacrament do not validly contract, even if they wish to contract marriage; and if they truly wish to contract marriage, they also receive the sacrament, even if they do not wish to make the sacrament. - Lugo, de Sacr., d. 8, n. 120-130; Schmalzgrueber, l. 4, t. 1, n. 302-304; t. 19, n. 164-176; Ferraris, v. Matrimonium, a. 1, n. 19; Clericatus, de Matr., decis. 4, n. 25.

Is marriage governed by civil or ecclesiastical authority? - Since among Christians the contract itself of marriage is a sacrament, marriage cannot, insofar as it is contract, be governed by civil power, and insofar as it is sacrament, by ecclesiastical power; nor at the same time, insofar as it is contract and sacrament, be governed by both powers, civil and ecclesiastical; but it must be governed exclusively, both as contract and as sacrament, by the authority of the Church.

Wherefore to the Church alone it belongs to establish especially those things which regard the substance of this contract, both as regards the incapacity of persons and as regards the form and solemnity to be constituted, namely as regards diriment impediments to be established. And likewise to the Church alone belong matrimonial causes and causes of betrothals and of other impediments immediately and directly impeding marriage. Trent, sess. 24, c. 4, 12; Benedict XIV, Const. Singulari, sections 7, 9; Leo XIII, Encyclical Arcanum, and Letter to the Bishops of the Province of Venice, February 3, 1893; Syllabus, prop. 68 ff. - But since families are members of Civil Society, hence marriage in Civil Society produces civil rights and obligations, which are called the civil effects of marriage.

Therefore if civil Princes can do anything over marriages, those things only are regarded which are situated in the civil order. Leo XIII, Encyclical Arcanum, and Letter dated February 8, 1893. - But marriage is not a certain civil contract, but is most of all natural. The contract of marriage was instituted by God Himself at the beginning of the world, Gen. 2:18; and furthermore it always was and is a sacred thing, sacred indeed not only by natural law, but also by the supernatural ordination of God. Trent, sess. 24, Doctrine on the Sacrament of Matrimony; Leo XIII, cited Encyclical.

Hence marriage, as regards unbelievers, both as natural contract and as sacred thing, by no means depends on the civil power and jurisdiction of Princes as regards impediments diriment of it, according to the opinion of many grave doctors. But there are other doctors who think that the marriages of unbelievers, since they are not sacraments, and therefore cannot be governed by canon law, lest those contracting be without law in so grave a matter, are governed by the power and jurisdiction of Princes, whether faithful or unbelieving. St. Thomas seems to adhere to this second opinion, 4 d. 39, q. 1, a. 2, ad 3, since "those things which pertain to the law of nature are determinable by positive law; and therefore if by some positive law among those unbelievers marriage with unbelievers of another rite is prohibited, disparity of worship impedes marriage among them." - St. Thomas, Suppl. q. 42, a. 2; 4 d. 34, q. 1, a. 1; Quodl. 5, a. 15; Schmalzgrueber, l. 4, t. 1, n. 360 ff.; t. 18, n. 2-8; Collectanea S. C. de P. F., n. 1089; E. M.

Resolutions: Impediments diriment of marriage are to be taken from Canon Law, by no means from Civil Law, except insofar as the approbation and confirmation of the Church has acceded to this, or insofar as Civil Law is conformable in this matter to Canon Law; from this it is to be corrected where it is discordant. Trent, sess. 24, Decree de R. M., etc.; C. I. 56 ff.; C. G. 161 ff.; C. H. 83 ff.; C. A. 47 ff.; C. B. 1303 ff.

Civil marriage contains nothing illicit in itself, if nothing else is signified by it except "an extrinsic ceremony for fulfilling the forms which are customarily required by civil authority." S. C. C., January 7, 1899. Wherefore in this sense it is permitted. Monit. Eccles., v. 11, p. 389.

Note: Since by present Italian, French, and German Civil Law marriage is not admitted unless civil, namely entered according to civil law, hence, if that is passed over, many grave damages can follow, both spiritual and temporal. Spiritual, because it will be open to one to depart from the other and to enter another civil marriage. Temporal, because the husband is not compelled by law to support the wife, and the children, in no way recognized by law as legitimate, do not succeed to the paternal inheritance by force of civil law in the external forum. Wherefore the civil ceremonies are not to be omitted. And if by civil law the bridegroom and bride are prohibited from marriage, it is not licit to join them in marriage without the command of the Bishop. S. Poenitentiaria, January 15, 1866. Cf. C. I. 70 ff., 93 ff., 721; C. G. 165 ff., 723; C. B. 1317, 1324. - But it is otherwise from C. A. 69 ff., 75 ff., and from C. H. 42 ff., 75 ff. - Cf. V. 1, n. 223, 680; Collectanea S. C. de P. F., n. 1390; E. M.

Civil marriage is not marriage, nor is it equivalent to betrothals, and therefore induces no impediment of public honesty.

Nevertheless, since it has the appearance of marriage, it can be sanated in the root. It is to be contracted before religious marriage by reason of civil effects, lest otherwise grave damages arise. And in this sense civil marriage, insofar as it signifies the civil rite to be observed in it for obtaining its civil effects, contains nothing, as has already been said, which cannot be approved. And when it cannot be contracted, recourse must be made to the Bishop. In particular cases, it can be permitted by the Bishop that first the religious marriage be contracted and then the civil. Therefore the Ordinary can permit religious marriage to be contracted without civil marriage having first been entered, but there is need: that if before this the spouses had been bound by civil marriage, they have obtained legal separation; or, if this cannot be had, that it be morally certain that the other party will never demand civil union before the law; that they promise in writing and before a person delegated by the Ordinary and two witnesses that they will celebrate civil marriage as soon as it can be done; that it be morally certain that those entering marriage are not afterward to be separated from one another. S. C. of Sacraments, March 1909. - Civil marriage, as also mixed marriage or a null marriage contracted ignorantly or knowingly, or the danger of marriage whether civil or mixed, is a canonical cause for obtaining dispensation from some diriment impediment. - Clerics constituted in sacred orders, or Regulars or Nuns after the solemn vow of chastity, presuming to contract marriage, and also all presuming to contract marriage with some one of the aforesaid persons, even merely civilly, incur excommunication reserved to the Ordinary. - Clerics constituted in sacred orders consummating this marriage incur irregularity besides.

Is the state of grace required for the sacrament of marriage? - Spouses contracting marriage must be in the state of grace, because marriage is a sacrament of the living. Those who contract in mortal sin become guilty of sacrilege, and do not receive sacramental graces. Probably, however, those graces are only suspended, and when the obstacle or mortal sin has been removed, they are applied to the soul. - If no fruit is hoped from admonition, it will be better not to admonish the unworthy person concerning the sacrilege, so that at least thus he may sin less; and rather he should be induced at least to approach confession as soon as possible. - L. 894.

Must the parish priest require that a certificate of Confession be exhibited by the spouses? He cannot of himself require this, unless law or a precept of the Bishop establishes it. The reason is that although the state of grace is required for receiving this sacrament, nevertheless Confession is not necessarily required, since contrition can suffice absolutely even for those who are in the state of mortal sin. From another source it is generally not known to the parish priest that the spouses are not in the state of grace. - Where a particular law exists, the parish priest must require testimony of Confession. Nevertheless cases can occur in which this law admits exception, as if marriage has already been contracted civilly, and one party exhibits the required testimony of Confession, etc. And if the bridegroom is not a public sinner, nor is his unworthiness clear, even less grave reasons suffice. Cf. 372 ff.

Must marriage be celebrated in Church, and be blessed by the parish priest at Mass? - It is fitting that marriage be celebrated in Church, and spouses are to be exhorted that they receive the nuptial blessing, which pertains to the solemnity of nuptials, and is altogether distinguished from the rite of celebrating the sacrament of marriage, by which the priest joins the spouses and blesses the ring, and which is contained in the Roman Ritual. The Missal exhibits the nuptial blessing in the Mass for the bridegroom and bride. If they omit it, either they are free from every fault, or certainly from grave fault.

Marriage can be celebrated at any time, even forbidden time, or time of interdict. The nuptial blessing is given only in Mass, and can be given even after marriage has been celebrated, even if the bride approaches pregnant. But it is given by the Bishop alone or by the proper parish priest, only in their own proper territory, and outside forbidden time and interdict. It consists in the Prayers which are had in the Missal: Propitiare, etc., and Deus, qui potestate, etc., to be said before Libera nos; and also Deus Abraham, to be said before the blessing. In Mass; namely, if it can be done, a votive Mass for the bridegroom and bride; this is therefore permitted on any day, except doubles of the first and second class, feast days of precept, and the vigil of Pentecost, and other excepted days. Cf. here 657; but on these days the prescribed commemoration for the bridegroom and bride is to be added to the Mass; and moreover after the Lord's Prayer and Ite Missa est the Prayers are added which are had for this purpose in the Mass for spouses. But once it has been given either to the man or the woman, it cannot be given again in second nuptials. But since that blessing chiefly regards the woman, if the woman has never received it, it can be given, whether she then marries for the first time, or then marries again, where this custom is in force. - C. 1, 3, de Secund. nupt.; Trent, sess. 24, C. 1, de R. M.; Roman Ritual, h. t.; Holy Office, September 1, 1841, Collect. S. C. de P. F., v. 1, n. 938; S. R. C., June 23, 1853; August 14, 1858, Mont. Alb.; May 9, 1893; June 30, 1896; Benedict XIV, Instr. 80, n. 8; L. 984, 988; Collectanea S. C. de P. F., n. 1536, 1537, 1559, 1560, 1561; E. M.

For imparting the nuptial blessing after forbidden time, the presence of both spouses is necessary, and that of the bride alone does not suffice. S. R. C., May 27, 1911, ad 7.

If one party is Catholic and the other has publicly cast off the faith or has enrolled himself in a condemned sect, although he has not also been enrolled in a heretical sect, the matter having been brought to the Bishop, the Bishop can permit the parish priest to assist at the marriage only as an authorized witness, if otherwise grave scandal or damage would arise, with every ecclesiastical rite excluded, and the celebration of Mass altogether excluded, unless the circumstances require otherwise. Holy Office, February 21, 1883; April 23, 1873; E. M.

All priests blessing nuptials, or joining spouses in marriage, without permission of the parish priest of the spouses are suspended until they are absolved by the Ordinary of the aforesaid parish priest. - The blessing after childbirth must be done by the parish priest, if he himself has been requested; it can be done by any Priest, if he likewise has been requested, in any church, after its superior has been informed. It is not to be denied to a woman after childbirth whose offspring died without baptism. A woman who has given birth to an illegitimate child does not have a right to the blessing after childbirth.

Proof of marriage. If legitimate proof of an entered marriage cannot be had, an oath is to be deferred to the parties by which they confirm their own assertion; when this has been furnished, the parties are to be held as joined in legitimate marriage, and their offspring as legitimate. Nevertheless those cases are to be excepted in which the law requires full proof, for example if the question concerns prejudice to another marriage, or receiving orders. But marriage confirmed by oath, as above, is to be inscribed not indeed in the common book of marriages, but in a distinct booklet destined for this purpose. S. C. of Sacraments, March 6, 1911.

What concerning the unity of marriage? The unity of marriage consists in this, that marriage is the union of one man with one woman. - It is certain that polyandry, or the simultaneous union of several men with one woman, conflicts with the natural law, because it is opposed to the chief ends of marriage, namely the generation of offspring and their good education. The seed of several mixed is sterile. Furthermore, the father becomes uncertain, upon whom the education of offspring especially falls. - It is certain that simultaneous polygamy, or the simultaneous union of several women with one man, is prohibited in every case, at least by positive divine law of the New Law, as is clear from Luke 16:18: Everyone who dismisses his wife and marries another commits adultery.

It is likewise clear from Trent, sess. 24, Doctrine on the sacrament of matrimony, c. 2. Moreover, it repugns at least to the peaceful dwelling of spouses, a secondary end of marriage, and renders the education of offspring more difficult. - It is certain that second nuptials and further nuptials are licit both for a man and for a woman even under the Evangelical law. This is clear from the authority and practice of the Church, and also from Sacred Scripture, 1 Cor. 7:39: A woman is bound by the law as long as her husband lives; but if her husband has fallen asleep, she is freed: let her marry whom she wishes, only in the Lord. - St. Thomas, Suppl. q. 63, q. 65; E. M.

What concerning the firmness of marriage, insofar as it regards the bond? - Marriage is indissoluble, i.e. once marriage has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. Proof 1. From the words of Christ, Matt. 19:6: And so they are no longer two, but one flesh. What therefore God has joined, let not man separate. 2. From the words of St. Paul, 1 Cor. 7:10-11: But to those who are joined in marriage I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, let her remain unmarried, or be reconciled to her husband. And let not the husband dismiss the wife. 3. From Trent, sess. 24, c. 5, 7. Therefore even if before consummated marriage a case occurs such that, were it standing, marriage could not have been entered, for example, if the man becomes impotent, if the woman becomes insane, the bond of marriage perseveres. C. 25, caus. 32. - L. 955; St. Thomas, Suppl. q. 67; Collectanea S. C. de P. F., n. 1295; C. B. 1348; E. M.

Is an exception given as regards the aforesaid firmness of marriage? - A threefold case must be excepted. 1. Ratified and non-consummated marriage of Christians can be dissolved, for a grave cause, by dispensation of the Pope, from the power divinely conceded to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.; Benedict XIV, Const. Dei miseratione. Cf. Perrone, de Matr., t. 3, s. 2, c. 6, a. 4. Moreover, this faculty is to be extended to marriages consummated in unbelief, if the spouses after baptism, by which the union becomes ratified, have not again consummated it; and likewise to marriages consummated in unbelief, when the spouse converted and baptized is permitted, by Apostolic Authority, to remain with the wife who was converted and baptized with him, as with a legitimate wife, the others having been dismissed, although she is not his first wife; or, because the absent unbelieving spouse cannot be warned, when it is permitted by Apostolic Authority that the spouse converted to the faith and baptized contract marriage with any faithful person. Indeed this marriage is valid and firm, even if afterward it becomes known that the prior unbelieving spouse could not justly declare his or her will because of an impediment, and had also been converted to the faith at the time the second marriage was contracted. This is most clearly established from the Letters of St. Pius V, August 2, 1571; Gregory XIII, January 25, 1585; Urban VIII, October 20, 1624; September 17, 1627. - Non-consummated, namely by an act of itself suitable for the effect of generation; and consequently, St. Alphonsus 1036, St. Thomas, 4 D. 41, q. 1, a. 1, q. 4, ad 2, by an act perfect on both sides. - Consummated marriage of Christians can in no way be dissolved, Matt. 19:6; Trent, sess. 24, C. 7, de M., and the same must be said if marriage is contracted by a faithful person with an unbeliever from dispensation of the Roman Pontiff. Clement XIII, August 2, 1759; Holy Office, August 1, 1753. - L. 955, 956, 959; Collectanea S. C. de P. F., n. 1308.

Dispensation from ratified non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. The Bishop in this cause cannot, without a special faculty obtained from the S. C. of Sacraments, institute the process. But in other causes the Bishop is the competent judge in first instance.

2. Ratified and non-consummated marriage can be dissolved through the solemn religious profession of one spouse, and this from a special privilege conceded by Christ and declared by the Church. C. Verum, C. Ex parte, de Convers. coniugat.; Trent, sess. 24, c. 6. Solemn: i.e., not of simple vows, even in the Society of Jesus, but solemn vows. Profession; not mere entrance into Religion. - But so that the spouses may deliberate about the use of this privilege, by the law itself they have two months conceded to them after the nuptials, during which time they are not bound to render the debt. C. Verum, C. Ex publico, de Convers. coniug. And "either spouse can licitly deny the debt within the two-month period, although he does not have the intention of entering Religion, because he uses his own right." L. 956. Indeed after that two-month period also, if the marriage has not been consummated even through illicit denial of the debt, this privilege remains. Nor is it impeded by fornication had between the spouses before the celebration of marriage, unless the marriage is necessary for legitimating offspring, or for repairing scandal, or the honor of the bride. If within the two-month period violence is applied, and the marriage is thus consummated while the bride was in fact thinking about embracing religion, although the marriage is now indissoluble, nevertheless the bride can even in this case enter Religion. But he sins who contracts marriage with the intention of entering Religion without warning the other party. - L. 870, 958; St. Thomas, Suppl. q. 61, a. 2, 3; Schmalzgrueber, l. 3, t. 32, n. 11 ff.

There are those who judge that a right of this sort is not conceded except to those who, after nuptials have been contracted and not yet consummated, deliberate about entrance into religion. But in this sense that right would be void, for then immediately after the contract of marriage each one would be bound to render the debt. For who is so mad that, while deliberating about entrance into religion, he would contract marriage?

3. Even consummated marriage of unbelievers can be dissolved from divine concession, when either spouse is converted to the Christian faith, although not Catholic but heretical, through reception of baptism, and the other refuses to cohabit peacefully with him, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or makes an attempt to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, 1 Cor. 7:12-15, where he says: If any brother has an unbelieving wife and she consents to dwell with him, let him not dismiss her...; but if the unbeliever departs, let him depart, for the brother or sister is not subject to servitude in such matters; but God has called us in peace. Innocent III explains the same more fully in C. Quanto 7, de Divortiis. - L. 955, 956; St. Thomas, Suppl. q. 59, a. 3-6; E. M.

Interpellation of the unbelieving spouse is to be made, if the other, while that one remains in unbelief, is converted and wishes to enter a new marriage. Provided it is clear that the spouse is unwilling to live peacefully from that one's response, or from a process at least summary that he or she was unwilling to give any response, or dispensation from making interpellation has been obtained from the Holy See, marriage can be contracted.

Note: Marriage is not dissolved immediately by reception of baptism; Crimes are dissolved in baptism, not marriages, C. Gaudemus 8, de Divortiis, C. Si quis 28, q. 2; but when the converted and baptized spouse enters a new union. Even after intercourse has been had after the conversion of either party, if the other party is unwilling to cohabit peacefully without insult to the Creator, the marriage can still be dissolved, whatever time has elapsed. But when the spouse converted passes to other nuptials, since the prior marriage is now dissolved, even the spouse who remains in unbelief can validly and licitly contract another marriage. - Regularly, from the prescription of the Law, C. Quanto 7, de Divortiis, interpreting the Pauline privilege, But if the unbeliever departs, let him depart, the converted party cannot pass to other vows before the unbeliever, having been interpellated, has either absolutely refused to cohabit with the converted party, or at least has been unwilling to cohabit without insult to the Creator. - If the unbeliever cannot be interpellated, because he or she is far absent and has fled, or lies hidden, several judge, apud Sanchez, l. 7, d. 74, n. 13-15, that interpellation can be omitted, because there is no obligation of impossibilities; nor is there need of it, since it is now clear with moral certainty that the unbelieving spouse is unwilling to be converted, nor willing to live peacefully. Others, with whom Benedict XIV agrees, de Syn., l. 6, c. 4, n. 3, think pontifical dispensation necessary; and the S. C. C., January 17, 1722, adhered to this opinion apud the same Benedict XIV, l. c., and the Holy Office, September 16, 1824. Cf. Collectanea S. C. de P. F., n. 1328. The case would certainly be different if the unbelieving spouse is absent from the spouse by some compulsion and wishes to be joined with that spouse; for then the unbeliever neither departs nor can depart, in which case Apostolic dispensation would be needed for the converted unbeliever, and then indeed in this sense the dispensation from interpellation which is given can be well understood. - When, in some places, by law or custom, in order to remove a peculiar danger of perversion, it is prohibited that the converted party cohabit with the unbeliever unless this one also wishes to be converted to the faith, not only must the unbeliever be interpellated whether he consents to cohabit peacefully, but also whether he wishes to embrace the Christian faith. But if, when the time prefixed by law or custom has elapsed, he has declared that he is unwilling to be converted to the faith, although from another source he would wish to cohabit peacefully, the converted spouse recovers liberty and is permitted to fly to new nuptials. For by the judgment of the Church, according to the circumstances of places, the pertinacity alone of the unbeliever in unbelief is judged to present danger for the perversion of the faithful spouse, and for insult to the Creator. - By the Pauline privilege, it is not conceded to the converted party that he can enter a new marriage with another unbeliever, or even with a catechumen, but only with a baptized faithful person. S. C. de P. F., January 16, 1683; August 7, 1891, Collectanea cit. n. 2183; L. 956, 957; St. Thomas, Suppl. q. 59, a. 3, 6; Benedict XIV, de Syn., l. 13, c. 21; Sanchez, l. 7, d. 73; Monit. Eccles., v. 11, p. 533.

When one of two unbelieving spouses is converted to the faith, the other remaining in unbelief, the converted one can receive sacred orders or profess religion. In the first case the marriage is not dissolved, and therefore if the other spouse is converted, he or she cannot contract a new marriage. Sanchez, l. 7, d. 76, n. 11. But in the other case, "it must altogether be held," says Sanchez, l. c., n. 9, "that the prior consummated marriage is dissolved through profession, just as it would be dissolved through subsequent marriage." - Ferraris, Supplementum, v. Privilegium Paulinum; E. M.

What and of how many kinds is divorce, and by what cause and authority is it licitly made? - Divorce is separation and disjunction. It is threefold: as regards the bond, as regards habitation, as regards the bed. Divorce as regards the bond is that by which the very bond of marriage is dissolved, so that the former spouses can licitly and validly enter another marriage; this is verified in the three cases explained in the preceding number. Divorce as regards habitation is separation merely as regards cohabitation, while the bond of marriage remains. - Divorce as regards the bed is separation regarding the use itself of marriage and the conjugal debt, while again the bond of marriage remains.

A spouse can separate from a spouse as regards habitation and bed: 1. From mutual consent, which is clear of itself, provided the danger of incontinence is absent; whether for a time, because of affairs, or perpetually because of a desire for a more perfect life. 2. Because of adultery of the spouse, on account of violated fidelity, Matt. 5:32; 19:9; 1 Cor. 7:11; C. 4, 5, 8, de Divort. Because of adultery, namely morally certain, not condoned either expressly or implicitly through a conjugal act, not mutual, because then compensation would exist, voluntary, but not committed from violence inflicted, perfect and consummated. Whether also because of sodomy and bestiality? The common opinion affirms, from which St. Alphonsus 362 says one must not withdraw, but he says that it is not really proved. St. Thomas, 4 D. 39, q. 1, a. 1, ad 4. 3. Because of supervening heresy. C. de illa, de Divort. 4. Because of any grave danger of body and soul, can. 28, caus. 1; C. 8, 13, de Rest. spol.; Trent, sess. 24, c. 8; for example, if danger of life, mutilation, enormous or frequent cruelties is imminent; or danger of perversion. - C. I. 148-155.

The aforesaid divorce from bed because of adultery certainly can be made by one's own authority; likewise from bed and habitation, provided that, if the delict is hidden, scandal is absent, which can scarcely be absent; and more truly also because of heresy; and because of the aforesaid danger, if it is proximate and clear. - But no one of himself is bound to make divorce; since neither is anyone bound to this from justice, as is undoubted; nor from charity, which does not urge with grave inconvenience, which is ordinarily inherent in divorces: provision is made besides for one's own and the other's incontinence, and greater scandals are prevented.

Divorce is one thing perpetual, another temporary. Perpetual divorce is of itself divorce made because of adultery, or by the authority of a judge. Once perpetual divorce has been made, the innocent spouse, in whose favor it is, can still call the spouse back to himself or herself whenever he or she wishes; yet he or she is not compelled to admit that spouse, since this is not without grave inconvenience, although the other spouse has been converted to good fruit, or, more probably, has afterward fallen into the same delict, for example, of adultery, whether the divorce was made by one's own authority, or, more truly, by the authority of a judge. But if the divorce is temporary, the spouse is compelled to receive the spouse returned to the faith, C. 6, de Divort., or when the danger because of which he or she separated has now been removed. - L. 960-977; St. Thomas, Suppl. q. 59, a. 3, 6; q. 62; Sanchez, l. 10; Schmalzgrueber, l. 4, t. 19; E. M.

What concerning children to be educated after divorce has been made? - The doctors unanimously establish that children are to be educated with the innocent party. But when the other spouse is an unbeliever or heretic, the offspring must always be educated with the faithful party, although this one is guilty, and this in favor of the faith, from C. fin., de Conv. infid. But the expenses for educating the offspring are to be borne by the father, if he is at fault, Auth. Si pater apud L. 976. But if the mother is at fault, the law establishes nothing; Sanchez, l. 10, d. 20, n. 8, nevertheless judges it equitable that what has been established for the father also be understood for the mother. But if, once divorce has been made, the man retains the dowry, the wife would now seem sufficiently to concur for the education of the offspring. These things according to Roman Law. But now the more recent laws of various places are to be consulted. C. I. 148 ff.; C. G. 229 ff.; C. H. 104 ff.; C. A. 103 ff.; C. B. 1585, 1635, 1636, 1685. - Schmalzgrueber, l. c., n. 181-183.

What concerning a sentence of divorce from the bond to be pronounced by a lay judge? - Where civil law of divorce is in force not only from bed and habitation, but also from the very bond of marriage, spouses cannot, for any reason, petition the sentence of the judge; nor consequently can advocates petition and defend it; nor can judges in any way pronounce it, namely a sentence which repugns to natural, divine, and ecclesiastical law concerning the indissoluble bond of marriage. For there is question of a thing intrinsically illicit. But if by supreme crime spouses have petitioned and obtained from a judge a sentence of this sort of divorce from the very bond of marriage, the civil registrar can in no way admit these spouses to another civil marriage and authorize it by his presence. For then by his authority he would admit them to nothing other than public and legal adultery, which would be protected by the very favor of the law. Hence he would inflict the greatest injury on the pre-existing marriage, and authoritatively declare those capable of the civil effects of marriage who, while the prior marriage still endures, are altogether incapable of these effects. C. B. 1564 ff.; E. M.