Case LXXXV: Marriage Contracted Conditionally

Case.—Claudius and Bertha wish to marry, but fear to undertake the burden of rearing a family. They marry, therefore, with the private understanding that they shall have no children for at least five years, and that the number of their children thereafter shall not exceed three.

Question.—It is asked whether this marriage was valid.

Solution.—A contract to which an immoral condition is attached is by the law of nature invalid, at least as long as the condition has not been fulfilled, if the condition have reference to the future, since no one can oblige himself to sin. In the case of the marriage contract it is not lawful for the parties to attach to their consent any condition—especially any that regards the future, unless there be most urgent reason for such action; a condition, however, that is possible and not opposed to good morals, does not as such render the marriage contract invalid. Such a conditional consent would be an agreement whereby the parties would transfer to each other the conjugal rights under the proviso that they would never exercise these rights. If some theologians regard such a marriage as invalid, this is only because they hold that the promise to practice continency is inconsistent with the right to conjugal intercourse, ‘and consequently opposed to the nature of marriage.

In the case of Claudius and Bertha, therefore, if their agreement bound them to abstain from the use of marriage before and after a certain time and nothing more, such agreement did not invalidate their marriage, unless one prefers the opinion that an engagement to practice continency, perpetual or temporary, is a denial of the rights to perpetual conjugal intercourse. But the condition by which the couple qualified their consent seems to have been of a very different nature. As the purpose of their prenuptial agreement was to evade the consequences of the marriage act rather than to practice continency, it may be assumed that they intended to limit the number of their children by unlawful means. Such a stipulation is plainly repugnant to good morals, and, therefore, by reason of the principle stated in the beginning it would seem that the marriage of Claudius and Bertha should be invalid. But the positive law has provided that for the marriage contract only those immoral conditions are nullifying which are opposed to the substance of matrimony. “If conditions against the substance of marriage are inserted, for example if one says to the other: I contract with you provided that you avoid the generation of offspring, or until I find another richer in honor or wealth, or provided that you give yourself to adultery for gain, the marriage contract, however favorable it may be, lacks effect. Although other conditions added in marriage, if they are shameful or impossible, ought because of its favor to be regarded as not added” (Decretals iv, tit. 5, 7). A condition that positively and expressly excludes an essential obligation of matrimony, whether intended by one or by both parties, renders the marriage of no effect; for without its substantial obligations matrimony cannot even be conceived.

In the agreement of Claudius and Bertha the condition is not merely sinful, it is opposed to the procreation of children. But the substance of marriage, as the words quoted declare, includes the generation of children (bonum prolis), indissolubility (bonum sacramenti), and conjugal fidelity (bonum fidei).

But here we must distinguish between the rights of marriage and their use, between the duties of marriage and their exercise.

According to St. Thomas (4 Sent. d. 31. q. 1. a. 3.) the essence of marriage does not depend on its use or on the fulfilment of its obligations, but on the intention to acquire the rights and to assume the obligations of the married state. This is the common and certain opinion. Now as Claudius and Bertha are not ignorant of the nature and duties of marriage and as they “wish to marry,” their agreement excludes not the right to, but the exercise of the lawful use of marriage, not the matrimonial obligation, but its fulfillment. Hence it appears that their marriage was valid. Of course if the parties had intended the pre-nuptial agreement as a conditio sine qua non of their marriage consent and if they had wished to exclude the rights and obligations that are inherent to the marriage contract, the ceremony they took part in would not have been a true marriage defectu consensus. Their consent would have depended on a condition that was immoral and opposed to the nature of marriage.

As a general rule marriages contracted with the understanding that the parties are to practice birth control, although sinful because of the intended abuse of marriage, are not thereby rendered invalid. The intention to become man and wife usually outweighs any opposing intention. “If a condition is added against the good of offspring—for example, provided that we avoid the generation of offspring until we have become richer; provided that after one or two children we exclude offspring—the intention of the spouses must be investigated: if they intend to exclude the right to the lawful use of marriage, the contract is invalid, because they do not grant a perpetual right over their own body in relation to generation, which nevertheless is essential to the essence of marriage; but if, as generally happens, the intention of handing over that right prevails, with a secondary intention of abusing marriage, the contract is valid.” (Tanquerey, Syn. Theol. Moral., I, p. 427).