Case XXV: Are Informal Betrothals Binding in Conscience?

Applied correction from Woywod's opening insert: Case XXV.—The answer to this case is made absolutely certain by Canon 1017 of the Code which reads: "The promise of marriage whether by one party only or mutual is null and void both in conscience and in the external forum unless it is made in writing, signed by the parties and either the local pastor or the bishop, or two private witnesses."

Of the commentators who affirm this, HEINER expresses himself most clearly, and therefore his argument may here be repeated: “As every positive promise engenders under natural law an obligation, and for this reason is binding in conscience and before God, there can be hardly a doubt that even a secret promise to marry is, of its own force, binding in conscience. Although, owing to the positive law, such a secret promise to marry has no legal operation and can not be enforced pro foro externo, this fact changes nothing in the consequences which a promise of this kind begets by virtue of its existence. The law declares invalid the marriage-promise without formal betrothal, not, however, the promise with the intention to take upon one’s self the obligation to enter a prospective marriage, even though this promise is by the legislator declared invalid. In conscience one party is bound to keep such a promise to the other, and to redeem his promise either by formal betrothal or by marriage.”

This argument can not be regarded as proving its point. An informal marriage promise is under the natural law binding, no doubt, but so is the informal marriage. And yet the informal marriage is without doubt invalid, because “owing to the positive law such marriage has no legal operation,” it contracts no matrimonial union pro foro externo, and begets no marriage rights nor duties whatsoever, thus depriving the contract of any value it may have by virtue of the natural law. The appeal to the natural law proves nothing therefore.

On the contrary we would conclude, and we believe correctly so:

If in consequence of the Church’s legislation, governing the forum externum and internum, there ensues from the repudiation of an act, of itself valid according to the natural law, its nullity and ineffectiveness for the forum internum, there must result, if the Church repudiates also the agreement to perform this act, a fortiori also nullity and ineffectiveness of the agreement for the forum internum That the Church has exercised her authority over betrothals pro foro interno is known to every canonist. The bond formed by the betrothal is, in and of itself, easily dissolved, even simply by mutual consent without any particular reason. It is difficult to believe that the words of a certain ecclesiastical law, which in all its other paragraphs undoubtedly does bind in the forum internum, should in its first paragraph, despite its plain wording, refer merely to the forum externum.

One single ground might seemingly be mentioned in support of their claim, but none of the commentators refer to it. The first article says: Ea tantum sponsalia HABENTUR valida, while in the third article we find: Ea tantum matrimonia valida SUNT. However, habentur and sunt are only different terms that have here the same meaning, for alone those betrothals made under observance of the lawful form are valid, because the Church repudiates the informal ones, and deprives them of all value and force. If—and in this all commentators are unanimous, from an informal betrothal not even the fides sponsalitia follows, and therefore a transgression against the holy purity does not involve a breach of faith and a violation of justice (iustitia commutativa) toward the innocent party, then it is difficult to perceive how there can be an obligation in conscience.

The law says: “an informal marriage promise is not a betrothal,” such an informal betrothal can not therefore be a promise with the intention of assuming an obligation, and can not, therefore, be of value and binding in conscience. The position of the commentators who defend the obligation incurred by informal betrothal does not seem consistent. Either they must concede to an informal engagement all effects pro foro interno, which proceed from the natural law, therefore fidelitas and fides (sponsalitia or otherwise) with iustitia commutativa and invalidity of a subsequent betrothal stante priori—three grave obligations therefore, or they must admit that none of the effects, not even the minor obligation of fidelitas, result for the forum internum. VERMEERSCH, in his excellent commentary, supports this view.

Cardinal Gennari refers, moreover, to the introduction of the decree, where are set forth the dangers of informal betrothal, as: first, inducements to sin and the reason why inexperienced girls are deceived; afterward, dissensions and inextricable lawsuits, and concludes with good reason that if informal betrothals were binding in conscience, all these dangers which the legislator intended to set aside would remain, and the legislator obviously can not intend this. Finally he cites from Cardinal Gasparri’s work (De Matrim., n. 78) a decision of the Congregation for Extraordinary Ecclesiastical Affairs. Leo XIII had ordained for so-called Latin America a certain written form for the validity of a betrothal, and to the question whether betrothals without this written form were in those countries binding, at least in conscience, the Congregation, on January 5, 1902, handed down the answer, confirmed by the Pope: The aforesaid betrothals are valid in neither forum.

No confessor has therefore the right to construe any obligation whatsoever from an informal betrothal. If a liability is incurred by one who has entered an informal betrothal, it can not originate from the betrothal (there is no betrothal), but only from some other incidental aspect of the act, for instance the informal betrothal may have been a means to deceive, or to lead into sin.

For this reason it is important to draw the attention of the people to the fact that those who are not willing to make the formal declaration of betrothal are open to suspicion that they have no earnest, no honorable intention. The faithful should be enlightened, likewise, that formal betrothals are not valid if there is an impediment (except the one of forbidden times) and such betrothals become valid only upon the removal of the impediment. For that which a person can not do valide or licite, he can not either validly promise to do.