Article I. On the Nature of Matrimony

1545. - Definition. Matrimony can be considered in two ways, namely as contract, and as Sacrament.

1° Matrimony as contract is a convention by which a man and a woman legitimately hand over to one another 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.

2° Matrimony as Sacrament is defined: A Sacrament of the new law conferring grace for sanctifying the legitimate conjunction of man and woman, and for piously receiving offspring and educating it holily.

But Matrimony is of precept as regards the community in general, but not as regards the individual members of the same, except accidentally on account of some other debt of justice or charity, for instance for legitimating offspring, for repairing the damage of defloration, or if someone were unwilling to employ other means for preserving continence. L. IV. 209.

1546. - Division. Matrimony can be considered both as regards the conjunction 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 man and woman. But the continuing wedlock in the bond which proceeds from the matrimonial contract is called in facto esse.

2° Legitimate, ratified, and consummated. Matrimony is called legitimate when it is contracted according to the norm of natural and civil law, yet does not have the ratification of the Church or the character of a Sacrament, such as was once entered in the law of nature and the Mosaic law, and even now is entered among Jews and Gentiles. - Matrimony is ratified when it is contracted between Christians entangled by no impediment, between whom, however, after the contract, conjugal intercourse has not yet intervened. It is called ratified because not only nature and civil law, but also the Church approves it and holds it ratified. - Matrimony is called consummated when it has been completed by the copula of the spouses had after Matrimony has been contracted, and that, for the internal forum, probably perfected on each side; such copula is always presumed in the external forum, and in doubt is to be presumed also for the internal forum.¹

3° True, presumed, and putative.

It is called true when it has really and validly been contracted, and as such is proved by some one of those arguments by which other affairs also are wont to be proved, of which kind is the testimony of the Pastor or others, the book of Marriages, the confession of the spouses, etc.

It is called presumed when it is presumed by law; and this presumption of law has place especially in a threefold case, but only in places where the decree of Trent concerning the form of Matrimony is not in force, namely: 1° when, after betrothals absolutely entered between two capable persons, copula has followed, even if imperfect;² for then the consent concerning the future is presumed to have passed into consent concerning the present, and the copula is presumed to have been admitted with conjugal affection.³ 2° When, after betrothals entered under a condition, before the event of that condition, carnal intercourse has intervened between the betrothed persons; for then the Church presumes that the betrothed persons have receded from the condition, and therefore have wished purely and absolutely to contract Matrimony.¹ 3° When, after betrothals concerning the present invalidly contracted by the impubes (in whom malice does not supply age), signs of ratified consent intervene between the same persons when they have attained puberty; of which kind are not only carnal copula, but also kisses, embraces, cohabitation, etc.²

Finally, Matrimony is called putative when it is thought to have been legitimately contracted, while nevertheless on the side of the thing, on account of some latent impediment, it is null. The Doctors therefore inquire concerning this, that it may be clear when it has the force of legitimating offspring thence received, and the other effects of law. Moreover two things are necessary for this: 1° that it was contracted in good faith at least by one of the spouses, who was unaware of the impediment.³ Indeed neither error of law, nor doubt concerning the value of the Matrimony, excludes this good faith, as Covarruvias⁴ proves; but in doubt this good faith is presumed. 2° That the Matrimony was contracted publicly and in the face of the Church, i.e. before the Pastor and witnesses, and with the denunciations premitted, or at least dispensed.⁵

4° Canonical, political or civil, of conscience, and morganatic.

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

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 Matrimony indeed is canonically valid, yet civilly is reputed illegitimate, and accordingly lacks civil effects.

Matrimony of conscience is celebrated secretly before the Pastor or another priest deputed by the Bishop, with two faithful witnesses, the banns omitted. Besides a most urgent cause (e.g. Matrimony to be contracted by concubinaries who are held as legitimate spouses), there is also required the license of the Bishop, to whom there must be sent a written document of the Matrimony so celebrated; this is to be kept by him and inscribed in the book of secret Matrimonies, with those things observed which Benedict XIV prescribes on this matter in the constitution Satis vobis, November 17, 1741, §§ 10, 11.¹

Morganatic Matrimony is that which a noble man enters before the Pastor and witnesses, with dispensation from the banns obtained, with a woman of a lower order, with this condition added: that both the woman and the children to be born from that Matrimony can acquire nothing of the right which coheres with the nobility of the man, and that they be content with those things which are necessary for living, or with a nuptial gift, or with a certain portion of goods determined by antenuptial agreement.²

1547. Principles. - I. The Matrimony of Christians, celebrated by the legitimate rite, is a true and properly so called Sacrament of the new law. See the arguments among the Dogmaticians.

II. For the validity of Matrimony there is required true consent on the part of each contracting party; because Matrimony, as contract, is a convention between a man and a woman: but consent constitutes the essence of convention.

III. But the consent must be:

1° Mutual; for it consists in a contract, which is essentially the consent of two, 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 there are made only betrothals, not Matrimony.³

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 freely and fully consents. This is clear from Canon Law, which invalidates Marriages contracted from grave fear, as will be said below concerning impediments.

4° Manifested by external signs; because every convention among men ought to be known by some external sign; for convention necessarily supposes mutual acceptance among the contracting parties.

1548. Questions. - Quaer. 1° What manner is to be observed with those faithful who, in those places of our Provinces where the Tridentine decree concerning the form of Matrimony is not in force, after absolute and valid betrothals and copula had with one party, either wish to enter, or have entered, nuptials with another either civilly or in the face of the Church?

Resp. The copula was had either with marital affection, or with fornicatorial affection. - If with marital affection, they are to be prohibited from any other Matrimony. The reason is clear from what was said n. 1546. 3°. Yet in the external forum they would be compelled to remain with her with whom they had contracted nuptials in the face of the Church, if they could not prove the copula had with the first; but they could exercise no carnal intercourse with the second. - If with fornicatorial affection, distinguish between the external forum and the internal. - If the copula has been brought into the external forum, they could be held by the ecclesiastical judge as in the likeness of legitimate spouses, and therefore be prohibited from any other Matrimony, and, if they had already contracted nuptials with another, be compelled to return to the first, with whom, nevertheless, they will be able to exercise no carnal intercourse. The reason is because in the external forum a delict is not presumed, and therefore the copula is presumed to have been had with marital affection. - But that carnal intercourse cannot be exercised with the first is from this, that the copula, although presumed to have been had with marital affection, in reality was had with fornicatorial affection. - If there is question of the internal forum, the Matrimony with the other will be valid, and also licit, if a legitimate occasion for dissolving the preceding betrothals has offered itself. - See the Instruction of the Congregation de Propaganda Fide, p. LXV sq., which was communicated also to the Bishop of Alton, for the information of one recurring. Likewise Heiss.¹

Note. - 1° In the question it is said: after VALID betrothals; for while, e.g., Titius, after having contracted betrothals with Anna, contracted betrothals with Maria against Anna's will, and then knew each woman, that copula had with Maria could not be a sign of Matrimony contracted with her, because the betrothals with her were null; but that copula had with Anna could be a sign of Matrimony contracted with her; for although he had the will of receding from her betrothals by contracting betrothals with Maria, yet in fact he did not recede, and having copula with her, he must be judged to have approved the aforesaid contract and to have amended the attempted recession.²

2° For the internal forum the persuasion of the penitent that he can enter a valid Matrimony with another, in doubt, will be an argument that the copula was had with fornicatorial affection.

Quaer. 2° Must consent be expressed in words?

Resp. 1° Negatively, as regards validity, because by natural law in a contract it suffices that consent be certainly expressed by some sign,¹ e.g. by marital cohabitation or by writing.

Resp. 2° Affirmatively, as regards liceity, because otherwise one would act against the Rubric and the custom of the Church. Nevertheless it does not seem to exceed a venial sin if words are not employed; indeed shame or another reasonable cause would excuse from every fault.²

Quaer. 3° Does consent through a procurator suffice?

Resp. 1° As regards validity, affirmatively, provided the required conditions are present, because Matrimony has the whole character of a natural contract. But any contract can be made through a procurator.

But the conditions for contracting Matrimony in that mode are the same as those which are required for valid betrothals to be contracted in that mode (see n. 1528. q. 6°); to which, for places where the decree of Trent concerning the form of Matrimony is in force, there is to be added this sixth: that the procurator appear with the other party before the Pastor and two witnesses.

Resp. 2° As regards liceity, negatively, unless a very grave cause urges. The reason is because this mode of contracting is contrary to the ordinary practice of the Church, and scarcely are Marriages so made among others than Princes and Magnates. Hence the Pastor ought not by his own authority to bless Matrimonies of this kind, as is clear from the practice of the Church and the Ritual.³

Quaer. 4° Is Matrimony entered UNDER A CONDITION valid?

Resp. 1° It is certain that it is valid if the condition is concerning the past or concerning the present, and it is verified. The reason is because that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the Sacrament.⁴

Resp. 2° If an honest and possible condition concerning the future is added, I say: 1° The Matrimony is not perfected until the condition is fulfilled; because the contract ought to transfer a mutual right over the bodies concerning the present, as I said n. 1547, and hence, if one before the verification of the condition retracts consent, the Matrimony is null, since at the time in which the contract is perfected, mutual consent is lacking. I say: 2° But when the condition has been fulfilled, the Matrimony is valid; because a conditioned contract, when the condition has been accomplished, 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 disjoined from the Sacrament. Hence more probably there is then no need of new consent; nevertheless more advisedly it is renewed.¹ (35) p. 423.

Quaer. 5° Is it licit to contract with conditioned consent?

Resp. Negatively. Such a mode of contracting is illicit, especially if the condition is concerning the future, unless perhaps, as St. Alphonsus² has it, there is present a most urgent cause which does not suffer delay, as if there is question of Matrimony with a dying person for legitimating offspring, in a case in which the death of the prior spouse is doubtful. The reason is because many and grave inconveniences can easily follow from such a mode of contracting, namely scandal, quarrels, complications, difficulties, etc. - Thus the more common opinion.

Quaer. 6° Is Matrimony entered under a base condition valid?

Things to be noted beforehand. - As regards the ends of Matrimony they distinguish: 1° intrinsic essential ends, namely a) the mutual handing over of bodies with the obligation of rendering the debt, if the other asks by right, and b) the indissoluble bond; - 2° intrinsic accidental ends, and indeed, as primary, the procreation of offspring; as secondary, the remedy of concupiscence; - 3° extrinsic accidental ends, as are, e.g., the peace of families, the obtaining of riches, etc.

Moreover the positive exclusion of essential ends in the celebration of nuptials renders Matrimony void; but not of itself the exclusion of accidental ends; indeed principally (with the relation of works to God saved) to seek nuptials either as a remedy of concupiscence (without, however, the end of procreating offspring being excluded), or on account of an extrinsic end, provided it is in itself honest, is no sin.³

With these things noted beforehand:

Resp. 1° Negatively, if the condition is repugnant to the substance or essence of Matrimony, namely to its threefold good, i.e. 1° to the good of Sacrament; 2° to the good of fidelity; 3° to the good of offspring; as it would be if the spouses, in contracting Matrimony, excluded the generation of offspring in the very use of Matrimony (but not if, out of love of continence, they excluded the use itself), or fidelity in marriage, or perpetuity in Matrimony. But for this it is required that a condition of this kind (namely for the external forum) be expressly posited, as is done in the formula of certain sects, by which perpetuity is excluded,¹ and that the spouses intend in mind to oblige themselves in no other way. But the Matrimony will be valid if this condition has itself concomitantly, and therefore is not the motive why the Matrimony is contracted, and otherwise there is present some general will of validly contracting. - Hence:

a) "The error of non-Catholics, by which very many think marriages can be dissolved by reason of adultery, or on some other account, by the authority of the State, does not obstruct the value of the contract; for the intention of contracting according to the law of nature and of Christ is stronger."

b) Matrimony is valid, although one of the spouses afterwards says that he had been ignorant of the Matrimonial debt, and, this having been known, affirms that he would not have entered Matrimony.²

c) The marriages of former "slaves, if the condition were added, 'so long as you shall have conducted yourself well,' are void."³

d) There was related to me the case of those contracting Matrimony before a magistrate or little heretical minister for this reason, that they believed the bond would thus be dissoluble, persuaded that it would be indissoluble if they contracted before a priest, whose ministry for that precise reason they did not use. I do not at all doubt that this Matrimony is null in the internal forum; for in this case error has itself antecedently to the contract, or they did not wish to enter any Matrimony other than a dissoluble one. But for the external forum, it would have to be clear concerning that matter from the confession or declaration of each spouse, against which the presumption of collusion does not militate. But if, as can easily happen among us, the confession of one party cannot be had, either because it is unknown where the party is, or because he refuses to appear, the sworn declaration of the other seems to suffice.⁴

Resp. 2° But if the base or impossible condition is not repugnant to the substance of Matrimony, distinguish. 1° It is judged valid in the external forum, unless the condition is proved to have been seriously posited; the reason is because in that case the condition is held as not added. 2° As regards the internal forum, distinguish. If it has been indubitably and seriously posited, it will be invalid: otherwise not. But in doubt a condition of this kind is presumed either not to have been posited, or not seriously, since in doubt judgment must always be made in favor of the value of Matrimony. Cf. n. 870. 2°. (36) p. 424.

Quaer. 7° What must be done if someone says that he consented fictitiously?

Resp. 1° As regards the external forum, faith is not given to him, unless either from the circumstances it is clear that he was deceived by fraud or induced by grave fear to contract, or by conjectures (which nevertheless is most difficult) fictitious consent is sufficiently proved. The reason is because it cannot be supposed that he who freely entered Matrimony consented fictitiously.

Resp. 2° As regards the internal forum, he who asserts that he consented fictitiously is to be obliged 1° to abstain from asking and rendering the debt until he truly consents; 2° ordinarily also to posit true consent, that thus he may repair the injury brought upon the other party. I say: ordinarily, because if the other party consents to separation, or fiction intervened also on the part of this party, or no damage is going to come to the party, or he who consented fictitiously was forced to contract, he is not held to supply consent.²

Besides, the spouse who posited true assent is not obliged to believe the other asserting that he consented fictitiously, even though he confirmed it by oath; and therefore would licitly ask the debt until the defect of consent was sufficiently proved.³

Quaer. 8° Is the consent of parents required for the validity or liceity of the matrimonial contract?

Resp. 1° As regards validity, negatively altogether; because the consent of parents is required neither by natural nor positive law. And 1° not by natural law; because the contracting parties have power over their own body, nor do parents have power over the body of their children in order to Matrimony; otherwise they could void the Marriages of these, whether justly or unjustly, which is altogether repugnant and adverse to the common sense of men. 2° Nor by positive law; for Trent¹ struck with anathema those who "falsely affirm that Marriages contracted by children of a family without the consent of parents are void, and that parents can make them ratified or void." But if civil law required the consent of parents for the value of Matrimony, its force would extend only to merely civil effects.² - Thus commonly all Catholic Theologians. Cf. n. 425.

Resp. 2° As regards liceity, affirmatively, generally speaking. This is clear from natural law, because children owe parents honor, reverence, and obedience, especially in those things which look to the whole family, of which kind is Matrimony, upon which very often depend the honor and peace of families, etc.

Quaer. 9° Can children sometimes contract Matrimony against the will of parents?

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

Quaer. 10° What must be done by the confessor or Pastor when children of a family wish to enter Matrimony against the will of parents?

Resp. 1° As regards the confessor, if he judges the reclamation of the parents just, he will persuade the children to accommodate themselves to the will of the parents. But if they are unwilling, and the conditions required by law in some State do not obstruct, he ought not to disturb them; for it would be imprudent, in a matter so difficult, to constitute himself judge between the father or mother and their children. Thus Gousset³ practically resolves the matter. But if the children, while the parents are unjustly opposing Matrimony, "betake themselves outside the limits of the State ... for contracting nuptials, or seek by another compact to evade the penalties of the laws, with truth uninjured, they do not seem to be blamed; otherwise if they accomplish the matter by false oath or false witnesses." Thus Kenrick.⁴

Resp. 2° As regards the Pastor, he ought not to assist at Matrimony unless the conditions prescribed by civil law have been fulfilled, on account of the inconveniences otherwise going to arise. See n. 426. q. 4°. R. II. a).