Article I. On the Nature of Matrimony

744. Definition. - Matrimony can be considered in two ways, namely, as a contract and as a Sacrament.

1. Matrimony as a contract is an agreement by which a man and a woman legitimately hand over to each other dominion over their bodies in relation to acts of themselves apt for the generation of offspring, and they obligate themselves to an undivided partnership of life.

2. Matrimony as a Sacrament is defined as a Sacrament of the New Law conferring grace for sanctifying the legitimate union of a man and a woman and for piously receiving and holily educating offspring.

745. Division. - Matrimony 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:

1. In fieri or in facto esse. Matrimony in fieri is called the actual contract itself which is perfected by the mutual consent of the man and woman. Matrimony in facto esse is called the marriage persevering in the bond which proceeds from the matrimonial contract.

2. Legitimate, ratified, and consummated. A legitimate matrimony is said to be that which is contracted according to the norm of natural and civil law but does not have the ratification of the Church or the nature of a Sacrament, such as was formerly entered under the law of nature and the Mosaic law and is now also entered among Jews and gentiles. A ratified matrimony is one contracted between Christians bound by no impediment, between whom, however, conjugal intercourse has not yet occurred after the contract. It is called ratified because not only nature and civil law but also the Church approves and ratifies it. A consummated matrimony is said to be that which has been completed by the intercourse of the spouses; this must be understood not only of a ratified but also of a merely legitimate matrimony ¹.

¹ This distinction of matrimony into legitimate, ratified, and consummated must be carefully retained as being of the greatest importance, as will appear below.

Meanwhile, observe that two things are required in order that a matrimony can be called consummated: 1. that the carnal union be perfect and sufficient for generation, so that (as is contained in chapter Verum 2, On the Conversion of Married Persons) the spouses have together been made one flesh. Therefore, that union would not suffice by which, although the integrity of bodily virginity had been taken from the woman, nevertheless generation could not follow because a suitable emission of male seed was lacking; 2. that a legitimate consent or ratified matrimony preceded a union of this kind. Therefore, intercourse had before the matrimonial contract does not cause the matrimony afterward contracted to be considered consummated, and consequently will produce neither indissolubility nor the other effects of a consummated matrimony. Whence you conclude that one who, bound by a vow of religion, has violated a woman can marry her and afterward (unless another cause prevents it) enter the religion vowed, if after he married her he did not know her again. - See Schmalzgrueber, book 4, title 1, nos. 227-228.

Of no small importance for the use of Theologians is another distinction of matrimony into true, presumed, and putative.

That is called true which was in fact and validly contracted and is proved as such by any of those arguments by which other matters are customarily proved, such as the testimony of the Pastor or others, the register of marriages, the confession of the spouses, the prolonged cohabitation of an honorable woman, etc. Concerning these, see Schmalzgrueber (book 4, title 1, no. 233), with whom observe that lighter proofs suffice when there is question of sustaining a matrimony than when the matter concerns dissolving it.

That is called presumed which is presumed by law; this legal presumption has place especially in three cases. First, when, in places where the Tridentine decree concerning the form of matrimony does not have 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 the intercourse is presumed to have been admitted with a conjugal affection. Concerning this most grave question, see Schmalzgrueber (book 4, title 1, from no. 115), Pirhing (same title, no. 27), and especially Barbosa (on chapter Is qui, same title, no. 3 and following). Second, when, after betrothals entered under a condition and before the occurrence of the condition, carnal intercourse intervened between the betrothed persons; for the Church (we speak while abstracting from the aforesaid Tridentine Decree concerning form, etc.) then presumes that the betrothed persons withdrew from the condition and therefore wished to contract matrimony purely and absolutely. This is evident from chapter Per tuas 6, On Conditions Apposed. Third, when, after a betrothal concerning the present invalidly contracted by minors before puberty (in whom malice does not supply for age), signs of ratified consent intervene between the same persons when they have attained puberty; signs of this kind are not only carnal intercourse but also kisses, embraces, cohabitation, etc. This is evident from the sole chapter, section Idem quoque, On the Betrothal of Minors, in the Sixth Book. This case, however, also can have place only where the aforesaid Tridentine Decree does not have force. - See Schmalzgrueber, book 4, title 1, no. 234.

Finally, a matrimony is called putative which is considered legitimately contracted although, in reality, it is null because of some latent impediment. The Doctors therefore inquire concerning it in order that it may be established when it has the force of legitimating offspring conceived therefrom and the other effects of law. Two things are required for this: first, that it was contracted in good faith by at least one of the spouses, who was ignorant of the impediment. Thus in chapter Ex tenore 14, title Who Are Legitimate Children. Neither an error of law nor a doubt concerning the validity of the matrimony excludes this good faith, as Covarruvias proves (On Betrothals, part 2, chapter 8, section 1, no. 9); but in doubt this good faith is presumed. Second, that the matrimony was contracted publicly and in the face of the Church, that is, before the Pastor and witnesses, with the denunciations having been premised or at least dispensed from. See the final chapter, On Clandestine Betrothals, section 1.

Another distinction of matrimony into canonical, political or civil, and of conscience must also be remembered.

They call that canonical in which all things concur which are prescribed for matrimony by the sacred Canons.

They call that political or civil in which those things also concur which are required by civil law, namely, certain solemnities, dotal agreements, etc.; without these, a matrimony is indeed canonically valid but is regarded as illegitimate civilly and therefore lacks civil effects.

Finally, a matrimony of conscience, or morganatic matrimony, is called a legitimate union of a man with a woman of inferior condition entered with this agreement: that the wife and children born therefrom are content with the nuptial gift or another fixed portion appointed at the time of the betrothals and abstain from the other ancestral and paternal goods, together with titles, dignities, and insignia. Concerning this, Jurists must be consulted. - See Schmalzgrueber, book 4, title 1, from no. 236.

746. Principles. - I. Matrimony of Christians celebrated by the legitimate rite is a true and properly so-called Sacrament of the New Law. This is proved: first, from the Epistle of St. Paul to the Ephesians, chapter 5, verse 32, where he says: This is a great Sacrament, but I speak in Christ and in the Church. Second, from the Council of Trent, session 24, canon 1: If anyone shall say that matrimony is not truly and properly one of the seven Sacraments of the evangelical law instituted by Christ the Lord, but was invented by men in the Church, and that it does not confer grace, let him be anathema. From St. Augustine (On the Good of Marriage, chapter 18): In the nuptials of Christians, the sanctity of the Sacrament has more force than the fecundity of the womb.

II. True consent on the part of each contracting party is required for the validity of matrimony, because matrimony, as a contract, is an agreement between a man and a woman; but consent constitutes the essence of an agreement.

747. • III. Consent, however, must be:

1. Mutual, for it consists in a contract which is essentially the consent of two persons, or mutual consent. Hence, if it is lacking on one side, the matrimony will be null.

2. Concerning the present, because by a promise concerning the future only betrothals, not matrimony, are made. This is also deduced from chapter Si inter 31, On Betrothals and Matrimony.

3. Deliberate and voluntary, because it is a contract concerning a grave matter and therefore induces a grave obligation; but no one is considered to impose a grave obligation upon himself unless he consents freely and fully. This is established from Canon law, which invalidates marriages contracted from grave fear, as will be said below concerning impediments.

4. Manifested by external signs, because every agreement among men must be made known by some external sign; for an agreement necessarily supposes mutual acceptance among the contracting parties.

748. Questions. - QUESTION 1. Must consent be expressed in words?

Reply 1. No, as regards validity, because by natural law it suffices in a contract that consent be expressed by some certain sign. - St. Ligorius, no. 887.

Reply 2. Yes, as regards liceity, because otherwise the rubric and the custom of the Church would be acted against. Nevertheless, it does not appear to exceed a venial sin if words are not employed; indeed, modesty or another reasonable cause would excuse from all fault ². - St. Ligorius, no. 888.

² Certainly, if there is question of mute or deaf persons, it is manifest that signs other than words must be used.

749. • QUESTION 2. Does consent through a procurator suffice?

Reply 1. As regards validity, yes, provided the required conditions are present, because matrimony has the whole nature of a natural contract. But any contract can be made through a procurator.

The conditions for contracting matrimony in that manner are: first, that the procurator execute the mandate personally; second, that the mandator has not revoked the mandate; third, that the procurator appear with the other party before the Pastor and two witnesses ³.

³ Compare what we said above (note on no. 722) concerning betrothals contracted through a procurator.

Reply 2. As regards liceity, no, unless a very grave cause urges. The reason is that this manner of contracting is contrary to the ordinary practice of the Church, and marriages are scarcely made in this way among any others than Princes and Magnates. Hence the Pastor must not bless marriages of this kind by his own authority, as is established from the practice of the Church and the Rituals. - St. Ligorius, no. 888.

750. • QUESTION 3. Is a matrimony entered UNDER A CONDITION valid?

Reply 1. It is certain that it is valid if the condition concerns the past or the present and is verified. The reason is that this conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the validity of the Sacrament ⁴. - See St. Ligorius, no. 890.

⁴ This has force even if the contracting parties are ignorant that the condition is fulfilled. The reason is that they bound their consent not to knowledge of the condition but to its existence; nevertheless, they cannot use the matrimony before receiving notice that the condition exists, since otherwise they would place themselves in danger of fornication. Concerning this, see the history narrated by Fagnanus (on the final chapter, On Conditions Apposed, no. 13) and Schmalzgrueber (book 4, title 5, no. 40).

Reply 2. If an honorable and possible condition concerning the future is added, I say, first: the matrimony is not perfected until the condition is fulfilled, because the contract must transfer a mutual right over the bodies concerning the present, as was said above. I say, second: when the condition has been fulfilled, the matrimony is valid; for a conditioned contract, when the condition has been fulfilled, passes into an absolute contract and by that very fact is valid by reason of the Sacrament, because among Christians the contract of matrimony cannot be separated from the Sacrament ⁵.

⁵ That a conditional matrimony immediately becomes perfect without new consent when the condition is fulfilled is the most received opinion of the Canonists. Thus Fagnanus (on chapter Super eo, On Conditions Apposed, no. 3), who adds that this opinion of the Canonists is observed in the Curia even after the Council of Trent and therefore must in no way be departed from in counseling and judging.

751. • QUESTION 4. Is it licit to contract with conditioned consent?

Reply. No. Such a manner of contracting is illicit, especially if the condition concerns the future, unless perhaps, as St. Ligorius has it, no. 892, a most urgent cause is present. The reason is that many and grave inconveniences can easily follow from such a manner of contracting, namely, scandal, quarrels, perplexities, difficulties, etc. - Thus the Theologians commonly.

752. • QUESTION 5. Is a matrimony entered under a base condition valid?

Reply 1. No, if this condition is repugnant to the substance or essence of matrimony, namely, to its threefold good, that is: first, the good of the Sacrament; second, the good of Fidelity; third, the good of offspring. This would happen if the betrothed persons, in contracting matrimony, excluded the generation of offspring ⁶, fidelity in the marriage, or perpetuity in matrimony. But for this it is required that a condition of this kind be expressly apposed and that the betrothed persons intend in mind to obligate themselves in no other way. The matrimony will be valid, however, if this condition is concomitant and therefore is not the motive why the matrimony is contracted, and there is otherwise some general will of contracting validly ⁷.

⁶ The question has been raised whether a condition which indeed excludes the good of offspring but is not base, rather honorable, is an obstacle to the validity of matrimony; for example, when someone adds to the contract the condition: if you live with me in chastity or perpetual continence.

And there were some who denied that matrimony is thus valid. See Gonzalez on chapter Si conditiones 7, On Conditions Apposed, no. 8 and following. They were led especially by this reason: that the contract of matrimony essentially denotes consent to the handing over of the body for conjugal use; but since this handing over imports the obligation of rendering the debt, that is, of furnishing the use of one's own body to the other, with whom by force of the contract the power over that same body remains, surely either there will be no contract, or certainly the one contracting must consent to conjugal use.

But a purpose of continence plainly excludes consent of this kind; and a fortiori this must be said of one who contracts with a firm will of keeping a vow of chastity which perhaps he made, since he does not have that consent otherwise essential to the matrimonial contract, nor can he have it without sin if he wishes to use the period of two months granted for deliberating. Finally, a fortiori, there will be no contract of matrimony if this very thing is reduced to an agreement or condition. And from this arises a difficulty also concerning the matrimony of the Virgin Mother of God with St. Joseph, and of others concerning whom ecclesiastical history speaks; for example, St. Pulcheria, who chose Marcian Augustus as her spouse with the virginity which she had vowed to God preserved.

But it is shown without difficulty that the apposition of that condition is no obstacle to matrimony being validly contracted, and therefore to a right over one's own body being truly handed over to the other and at the same time the obligation proper to matrimony concerning the rendering of the debt being undertaken.

And indeed it is certain that the purpose of not consummating matrimony is no obstacle to the validity of matrimony as regards one who has the intention either of passing over to Religion and professing in it or at least of suspending the execution of the conjugal obligation if he wishes to use the period of two months granted for deliberating concerning that matter. And now it does not pertain to the matter to dispute when this is licit or illicit; meanwhile, it must be held certain that a matrimony of this kind is valid and therefore that the handing over and power over one's own body which constitute the substance of matrimony are given to the other.

You will perhaps say that in this case the substance of matrimony is preserved, and the right granted is therefore by no means injured, because the nature of the contract itself bears this, which implicitly has this condition inserted; but no one is considered to obligate himself beyond what the nature of the contract bears, and consequently no further right is acquired by the other party.

But I say that this is not the sole reason for which, with the right of the other preserved, the obligation of rendering the debt can be suspended. I now omit that the bond of matrimony, with that obligation remaining suspended, endures not only through the two months granted for deliberating but throughout the whole period of religious novitiate. But to touch the matter more closely, can that which the laws of the Church grant not equally be furnished by the voluntary concession of him to whom the right over the body of the other belongs? What prevents the contracting parties themselves from agreeing by common consent upon not only two months but years in which they may deliberate? Why could they not suspend by agreement the execution of their own right also for another cause, for example, until the husband has obtained an office sufficient for supporting offspring? Why could they not agree upon a matrimony not to be consummated except after the fortieth or fiftieth year? And if this, why not also throughout the whole of life?

In a matrimony which is made with an agreement of continence, namely, a twofold contract manifestly intervenes: the one proper to matrimony, by which power over one's own body is mutually handed over to the other; the other, by which the spouses mutually yield the use or exercise of this right. Nor does it matter that they agree concerning the exercise or use of their own right before rather than after the matrimony has been entered. For there is no reason why that cannot first be promised which I can afterward licitly furnish. But, as we all acknowledge, after matrimony has been entered the spouses can licitly yield the use of matrimony; therefore they can also promise this beforehand.

I said promise, because in reality before the contract of matrimony they do not renounce the right over the body of the other; for renunciation or abdication of use has place only after the power of using has been acquired. Therefore, they promise only that they will renounce it, or, if you prefer, they promise that they will so contract matrimony that at the same time they abdicate its use. But these things do not conflict with each other, since, if an abdication of this kind can be made after the contract, it can also be made in the contract itself. Thus one who buys a house can indeed in the very act of contracting yield the use of that house to the seller.

Nor can it be said that a contract of this kind so lacks every effect that it is in some way deprived of the nature and force of a contract. For: first, one who contracts in this way remains incapable, by force of the matrimonial bond, of contracting with another person; second, if the spouses themselves afterward change their purpose and wish to be united, they will not be fornicators; third, likewise, if the husband who, for example, by agreement permitted his wife the condition of chastity, inflicts force upon her, he will indeed sin against justice because he violates the agreement, or at least will violate the virtue of fidelity because he broke his promise, but he cannot be called a fornicator; fourth, if each spouse not only grants continence to the other but both also vow it to God and afterward do not keep the vow, they will sin against the virtue of religion but not against the virtue of chastity; fifth, if either makes his or her body available to an outsider, that spouse is guilty of violated matrimonial fidelity and consequently is held to be an adulterer; sixth, finally (which it is strange is little observed by those who treat this question), when someone consents in contracting to a condition of chastity, does that person not use the matrimonial right especially? Just as one who buys a house exercises his right over it no less if he uses it by inhabiting it himself than if, unwilling to use it himself, he grants its use to another either for a time or in perpetuity; so surely, when someone voluntarily yields the use of his right over the body of the other, by this very fact he must be considered to have the right and power and to exercise it. For no one legitimately yields anything except that which he has in his power, and by yielding its use he evidently exercises that power. Therefore, it is false that through a condition of preserving chastity apposed to and accepted in matrimony, a contract is entered which has no force and no effect and therefore casts off the nature of a contract.

You have both older and more recent Doctors cited for this doctrine in Rebellus (part 2, book 2, question 10, section 3, no. 19), Clericatus (On Matrimony, decision 3, no. 21, and decision 20, no. 21), Schmalzgrueber (book 4, title 5, no. 119), and Benedict XIV (On the Diocesan Synod, book 13, chapter 22, no. 11), who nevertheless adds that it is altogether necessary for the patrons of this doctrine to inquire diligently concerning the strength and subsistence of this opinion, as though a Herculean labor were required to defend it, or as though no one had yet brought forward anything solid for it! He himself merely opposes the citation of Schmalzgrueber, who otherwise concedes that the same opinion is probable. Moreover, the whole armory which Schmalzgrueber himself opposes (l.c., no. 121) consists in this: that through the apposition of such a condition, the contracting parties exclude the right of the other over their own bodies and the implicit consent to rendering conjugal acts, since by force of it they are obligated neither to demand nor render intercourse. The whole force of this argument, as is evident, is situated in the fallacy by which a right is confused with the exercise of the right, and therefore the renunciation of use with the nonexistence of the right. Are not spouses equally obligated neither to demand nor render the debt if both bind themselves to a religious Order by solemn vow? And if this obligation excluded the right over the body of the other, why is either of them who has intercourse with an outside person an adulterer and why does that person sin against justice? Again, if the obligation neither to demand nor render intercourse excludes the right over the body of the other, how will a matrimony be valid when two persons bound by a simple vow of chastity contract? Let us conclude: a contracting party indeed cannot agree concerning those things which by the order of nature cannot be absent from the contract and by force of the contract are inalienable, such as the right over the body of the other; but in those things whose use is indeed licit but neither commanded nor inalienable, it is false that the contracting parties cannot agree upon abdication.

⁷ That saying of Horace has surely happened to the Author in this place: While I labor to be brief, I become obscure. Therefore, a distinction must be made between an express condition apposed to the contract and a merely internal intention.

When an intention or condition contrary to the substance of matrimony is expressly apposed or reduced to an agreement, it is certain from the final chapter, On Conditions Apposed, that the matrimony is invalid in both forums; and the Apostolic See has declared this several times, as will appear below. Nor is that which the Author adds then required, namely, that the betrothed persons intend to obligate themselves in no other manner. For, as Lugo observes (On the Sacraments, disputation 8, no. 128), a matrimony cannot be valid unless someone sufficiently expresses internal consent externally by words or other signs. But in the aforesaid case (namely, an express condition contrary to the essential goods of matrimony), consent in no way appears to be expressed externally when rather the opposite is signified. Therefore, a valid matrimony cannot be had. Except, however, from the common opinion, the case in which that condition is added by only one of the betrothed persons while the other contradicts it, because if the former proceeds to the contract notwithstanding the contradiction of the latter, the former is presumed, in favor of matrimony, to have withdrawn from that condition. Indeed, there are some who think the same must be said when the other is silent at the apposition of a condition of this kind. For in this case also the silent party is presumed, in favor of matrimony, to contradict. - Schmalzgrueber, book 4, title 5, no. 116.

But if there is question of a merely internal bad intention, this can be understood in two ways: either the contracting party is so disposed in mind that he is altogether unwilling to undertake one of those obligations which pertain to the substance of matrimony; or he indeed has the intention of truly contracting matrimony and therefore of undertaking all the obligations proper to matrimony, although he is not prepared to fulfill them, for example, by breaking off an impure friendship with another woman.

If it is accepted in this latter sense, the matrimony is valid according to the opinion of all, and that for both forums. Although one will easily observe that the obligation which concerns the good of the Sacrament, that is, the indissolubility of matrimony, is scarcely, or scarcely at all, capable of the aforesaid distinction, so that it can be undertaken together with an intention of not observing it, unless perhaps we think that the case pertains here of one who intends to leave his wife after some time and secretly to marry another elsewhere while conscious and certain that the prior bond remains.

But if the matter is understood in the former sense, then even if the bad intention is not reduced to an agreement, nevertheless it per se invalidates the contract as regards the forum of conscience. The reason is evident, because the contract of matrimony from its essence requires consent to those obligations. Therefore, whoever has an intention excluding any one of those obligations by that very fact excludes the essence of matrimony, and consequently the matrimony is null. See Sanchez (On Matrimony, book 2, disputation 29, no. 12), who after St. Thomas clearly explains this doctrine, afterward received by all.

I said per se, for another distinction also has place here which the Author also indicates somewhat obscurely: whether this intention is concomitant with or antecedent to the contract. This distinction must be considered diligently because of consequences of the gravest importance as regards practice. And indeed, since, for example, the indissolubility of the bond pertains to the essence of matrimony, what must be said of those who contract with the intention of establishing a divorce not only as regards bed but also as regards the bond, or of giving the wife a bill of repudiation, as the Jews are accustomed to do according to the Mosaic law? A case of this kind is certainly so far from being imaginary that there is a most frequent occasion of this question, because the opinion of the dissolubility of matrimony also flourishes among the schismatic Greeks because of adultery, and the same custom has prevailed among several Protestant heretics; and finally, the same faculty is given to spouses in many places by civil law, to say nothing now of infidels, whether Jews, Mohammedans, or idolaters. Therefore, it ought not to be surprising if those who contract matrimony in these circumstances at the same time have the intention of dissolving the matrimony because of the aforesaid causes and circumstances.

Cardinal De Lugo proposes the resolution of the question according to the twofold case of the distinction from the common doctrine thus (On the Sacraments, disputation 8, nos. 131-132): If the spouses know that repudiation is permitted in their republic, but at the time of the contract have not added this limitation, that they obligate themselves only under this respect, then, if that knowledge which they had concerning the use of repudiation was antecedent, that is, if they therefore contracted because they knew repudiation to be permitted and otherwise would not have contracted, they now appear to have been unwilling to obligate themselves simply to perpetuity. And therefore judgment must incline to the nullity of the matrimony.... But if the contracting parties were altogether ignorant whether the bond would be perpetual, or if they believed it even to be dissoluble but did not limit their intention at the time of the contract to that estimation, but had a general will of contracting a valid matrimony so that that ignorance or estimation was concomitant, since they would equally contract even without it, then the matrimony appears valid and is to be observed. And the things which the same Author discusses at length (l.c., from no. 120 to no. 130) are plainly worthy of being read, so that he may explain how a twofold contrary will can concur and which, as the more efficacious, must be said to prevail. There he also explains what that will is which is more general than the other (which the Author also indicates) and which is therefore more efficacious. You have the counterparts of these things also in Schmalzgrueber (book 4, title 1, nos. 302-304), where he asks whether the matrimony of a baptized person who wishes to celebrate it under the nature of a contract but not under the nature of a Sacrament, and therefore contracts with an intention excluding the Sacrament, must be called valid; and much more extensively (book 4, title 19, nos. 164-176), where he inquires into the case of Lugo itself.

These things, however, as was premised, have force for the forum of conscience; for in the external forum it is always presumed that that more general will of contracting legitimate matrimony was present, and therefore that any error adverse to the substance of matrimony was merely concomitant, until the contrary is proved. Benedict XIV reports from the consensus of the Doctors the general doctrine upon which this practice of the external forum rests thus (On the Diocesan Synod, book 13, chapter 22, no. 7): If that express condition concerning matrimony to be dissolved because of adultery was by no means apposed, however much the contracting parties were in this error, that the bond of matrimony could be dissolved through adultery, nevertheless there is place for the presumption that, when they wished to enter matrimony as it was instituted by Christ, they wished to contract it altogether perpetual and indissoluble even upon the intervention of adultery; namely, the general will which we have stated, concerning entering matrimony according to the institution of Christ, prevails and in some way absorbs that private error. Hence it happens that the matrimony so contracted remains valid and firm. But where the contracting parties in the matrimonial contract itself apposed an express condition concerning dissolving the matrimony as regards the bond in the case of adultery, it can no longer happen that the particular error remains absorbed by the general will of contracting matrimony as it was instituted by Christ the Lord; but rather a general will of this kind is extinguished and suffocated by the particular error which manifestly prevails and dominates. And hence arises the nullity of the matrimony in contracting which there was apposed

a condition contrary to its very substance. He soon confirms this doctrine in each sense by cited Declarations of the Sacred Congregations.

We find it proposed no less clearly in the Letters which Pius VI gave to the Archbishop of Prague on July 11, 1789: If a legal condition (he says) of dissolving the conjugal bond for the cited causes is apposed to matrimony through an express agreement, the matrimony must be called null and invalid from the beginning, nor could a conjugal bond have arisen therefrom; but an altogether illicit union was agreed upon, which each party, especially the Catholic party, is altogether bound to abandon by the law of Christ. But if no express condition of this kind repugnant to the substance of matrimony was apposed, although the contracting parties generally intend to contract according to the decrees of a sect or law granting the dissolution of the conjugal bond, nevertheless the matrimony must be considered validly contracted, and therefore a perpetual conjugal bond arose which can be dissolved by no civil law and no authority of non-Catholic consistories; and consequently the faculty of passing to other nuptials can be granted neither to the parties and much less to the Catholic party.

Pius VI gives the reason for the resolution, no differently from Benedict XIV, thus: Nor is there lacking an intrinsic reason why the intention of contracting according to the decrees of a sect asserting, or of a law permitting, the dissolution of matrimony does not impede its validity, provided it is not reduced to an agreement. For from this very fact that non-Catholics, deceived by a vain error, judge that the dissolution of matrimony for those causes is by no means repugnant to the law of Christ, it comes about that in their mind, because of that false estimation, the intention of contracting according to laws of this kind or the decrees of a sect by no means excludes the primary intention of contracting according to the divine law confirmed by Christ. Therefore this will remains in the act of contracting, and from it flows and is determined the nature of the consent which is actually furnished. Moreover, consent furnished according to the law of Christ is apt and sufficient for the validity of matrimony unless another canonical impediment stands in the way.

These things, however (as Benedict XIV has it in the text cited above), must always be referred to the presumption by which the practice of the external forum is governed. For by these things the Pontiff did not intend to define that true consent cannot be lacking even when that condition is not reduced to an agreement, just as, namely, the case of feigned consent is not excluded when the indissolubility of a marriage contracted between Catholics is determined generally. Therefore, as regards the forum of conscience, it always remains to be examined whether that bad intention is antecedent to the contract or only concomitant. For if the contracting parties so enter matrimony that they bind their intention to the error concerning the dissolubility of marriage alone and are altogether unwilling to contract except under the condition of dissolubility, the matrimony is null even if the condition is not reduced to an agreement, because they are unwilling to contract otherwise than dissolubly. Schmalzgrueber (book 4, title 19, no. 70) shows that this doctrine is common to the Theologians and Canonists. Indeed, if it were established from the confession of both spouses that they did not have the intention of contracting in another manner, this would suffice for the matrimony to be declared null even in the external forum, unless there were a presumption of collusion. And if this intention was present in only one of the spouses, it will suffice for that spouse in the external forum; indeed, it will also suffice for the other party if reasons of such a kind concur which prudently persuade that the former is not lying. See Sanchez (book 2, disputation 45, nos. 4-12, and book 5, disputation 12, no. 5) and Lugo (On the Sacraments, disputation 8, no. 130).

But in doubt whether someone had that general and efficacious will of making the matrimony altogether valid, judgment must be made in favor of the contract, that it be valid.

The reason is that everyone is presumed to wish to execute a valid contract unless the contrary is proved, according to the common doctrine of the Jurists; and this will have place a fortiori in the case of matrimony, which is more favorable. Thus Lugo (On the Sacraments, disputation 8, no. 136).

Reply 2. But if the base condition is not repugnant to the substance of matrimony, distinguish: first, it is considered valid in the external forum because there the condition is held as not added; second, it is disputed as regards the forum of conscience, as in other contracts. Ordinarily, however, it is not considered a condition sine qua non, but a mere purpose or promise independent of the matrimonial contract, and therefore the consent is not judged suspended under a base condition unless this is altogether established, as was said in the first reply. - St. Ligorius, no. 891 ⁸.

⁸ The base condition of which the Author now speaks, like an impossible condition, is in reality held as not added only when it is doubtful whether the contracting parties added it seriously or in jest. For since in doubt judgment must be made, according to the norm of law, in favor of the validity of the matrimony, deservedly in this doubt also the Church presumes in favor of matrimony that the condition was not seriously added; deservedly, I say, lest perhaps those who are legitimately united be separated and be joined to others through illegitimate marriages. Nevertheless, since this presumption is only one of law, and not also de iure, it can therefore be overcome by reasons brought forward to the contrary. - Schmalzgrueber, book 4, title 5, no. 64.

It is not held as not added, however: first, if the contracting parties regard it as honorable; second, if it is otherwise established that the condition was seriously added by the contracting parties, and therefore that consent was not furnished except under its occurrence; for the presumption then yields to the truth, and therefore, if the condition does not occur, there will be no matrimony because of the defect of consent, which the Church certainly cannot supply; third, if both contracting parties, or at least one of them, were ignorant of the Constitution which holds conditions of this kind as not added; for it cannot then be said that, because they knew this condition to be rejected by the Church, they therefore contracted absolutely, since they wished to receive the Sacraments according to the intention of the Church. This has force only when the contracting parties know both that the condition is base and that it is not admitted by the Church.

But insofar as the Author adds that, as regards the forum of conscience, it is disputed whether the matrimony, once the base condition is fulfilled, must be held valid, just as in other contracts concerning base matter, see what we said at no. 760 of volume I, where we showed that the opinion denying the validity of these contracts is supported only by the coloring of false citations.

753. • QUESTION 6. What must be done if someone says that he consented fictitiously?

Reply 1. As regards the external forum, credence is not given to him unless it is evident from the circumstances that he was either deceived by fraud or induced to contract by grave fear; for it cannot be supposed that one who freely entered matrimony consented fictitiously.

Reply 2. As regards the internal forum, one who asserts that he consented fictitiously must be obliged: first, to abstain from demanding and rendering the debt until he has truly consented; second, ordinarily also to furnish true consent, so that he may thus repair the injury inflicted upon the other party. I say ordinarily, because if the other party consents to separation, or if he himself was compelled to contract, he is not bound to supply consent ⁹. - Decretals, book 4, title On Conditions, final chapter.

⁹ The deceiver is not bound to marry the deceived woman also in the following cases. First, if the deceiver has already entered matrimony with another; for although he cannot prove to the judge the fiction as regards the other matrimony, and therefore the judge compels him, even under threatened excommunication, to cohabit with the woman believed to be his spouse, he must rather endure this censure, which would not bind the soul, than mingle carnally with the first betrothed woman, as is evident from chapter Inquisitioni tuae 44, On the Sentence of Excommunication. Second, if fraud intervened also on the other side, for example, if she falsely boasted that she was a virgin; for the deception is then compensated by deception. Yet La Croix (book 6, part 3, no. 258), and after him St. Alphonsus (book 6, no. 887), without reason refers the declaration of the Sacred Congregation of the Council to this case. See Thesaurus Resolutionum S. Congregationis Concilii, volume 3, pages 161-165. Third, if no harm came to the deceived party; or if the deceived party, once the deception is known, admits another compensation; or even if the harm inflicted can be compensated in another manner. Fourth, if the contracting party gave manifest indications of fictitious consent; for then the other party ought to attribute the deception rather to himself than to the other. The Doctors refer here the case in which the deceiver is of a much higher condition and state; for from this an indication of deception can become evident to the other party, although this is admitted with difficulty where the contract is celebrated before the Pastor. But an immense disparity can also excuse the deceiver for another reason, namely, because of the unhappy outcome, scandals, and other inconveniences which are rightly feared from such a marriage.

Moreover, the most grave obligation of entering matrimony with true consent easily manifests itself, not only because otherwise there is grave sin against the reverence due to the Sacrament, but because through the injury most grave harm is inflicted upon the other party. For since the fiction can be proved only with the greatest difficulty in the external forum, other nuptials are not permitted to the deceived party, and therefore this alone remains to her: either to enter Religion or to remain unmarried in the world.

Moreover, the spouse who furnished true assent is not bound to believe the other asserting that he consented fictitiously, unless he confirmed it by oath; and therefore the spouse could licitly demand the debt until the defect of consent were evidently proved. - Sacred Congregation of the Council, February 24, 1720.

754. • QUESTION 7. Is the consent of parents required for the validity or liceity of the matrimonial contract?

Reply 1. As regards validity, altogether no, because the consent of parents is required neither by natural nor by positive law. First, not by natural law, because the contracting parties have power over their own bodies, while parents do not have power over the bodies of their children in relation to matrimony; otherwise they could invalidate their marriages, whether justly or unjustly, which is altogether repugnant and opposed to the common sense of men. Second, neither by positive law; for the Council of Trent, session 24, chapter 1, struck with anathema those who falsely affirm that marriages contracted by children of a family without the consent of their parents are invalid and that parents can make them ratified or invalid. But if civil law requires the consent of parents for the validity of matrimony, its force extends only to merely civil effects. - Thus commonly all Catholic Theologians.

Reply 2. As regards liceity, yes, speaking generally. This is established: first, from natural law, because children owe honor, reverence, and obedience to their parents, especially in those things which concern the whole family, such as matrimony, upon which the honor and peace of families very often depend, etc.; second, from the Council of Trent (ibid.), where it is said: The holy Church of God has always detested and prohibited those marriages (entered without parental consent) ¹⁰.

¹⁰ These words of the Council of Trent refer rather to clandestine marriages, in which there is never lacking a reason why they should be prohibited.

755. • QUESTION 8. Can children ever contract matrimony against the will of their parents?

Reply. Yes, if the parents unjustly refuse consent. But since in this matter children of a family easily deceive themselves, before celebrating the nuptials they ought to consult prudent men and especially Confessors, lest in so grave a matter, full of such great dangers, they act imprudently while trusting their own judgment.

756. • QUESTION 9. What must a Confessor or Pastor do when children of a family wish to enter matrimony against the will of their parents?

Reply 1. As regards the Confessor, speaking generally, he ought to defend the part of the parents to the best of his ability; for generally the presumption is considered to favor them. Nevertheless, if the children, moved by a grave reason and with the legal conditions observed, persist in entering matrimony, they do not appear to be disturbed. - Thus commonly with Gousset.

Reply 2. As regards the Pastor, he ought not to assist at the matrimony unless the conditions prescribed by civil law have been fulfilled, because they are not opposed to the Church. - Gousset, no. 839.