Article I: The Notion of Matrimony

1. • I. Definition.

a) The same name "matrimony" designates two things, connected indeed, since one is the cause of the other, but truly diverse. For it is necessary to distinguish matrimony in fieri and matrimony in facto esse, which differ from one another as a transitory action differs from the permanent effect which that action produces.

b) Matrimony in fieri is an entirely singular contract, and at least in some manner sacred,¹ by which a man and a woman legitimately hand over to each other the exclusive and perpetual right over the body, in order to acts of themselves apt for generation.

¹ Leo XIII, Arcanum, 10 February 1880.

Matrimony in facto esse is the perpetual bond produced from the matrimonial contract, which joins the man and the woman into one society of life for fulfilling conjugal offices.

c) Those definitions are valid for every matrimony. But our Savior has raised the matrimony of the baptized to the dignity of a sacrament of the New Law, so that it is unlawful to distinguish in Christian matrimony the contract and the sacrament as two things; rather, the contract itself is the sacrament.

2. • II. Essence of matrimony.

a) Although the mutual right to carnal union is the formal object of matrimonial consent, nevertheless the union itself as exercised does not in any way pertain to the essence of matrimony. For there was a true matrimony between Adam and Eve while they were still dwelling in Paradise; likewise there was a true matrimony of the Blessed Virgin Mary with St. Joseph; and nevertheless in neither case did carnal union intervene.

Moreover this is the perpetual and certain doctrine of the Fathers and Theologians.

b) The essence of matrimony in fieri consists in mutual consent outwardly manifested, by which a man and a woman mutually hand over and accept the mutual, exclusive, and perpetual right over the body, in order to acts of themselves apt for generation.

If such a right is not conferred, there is no matrimony, since that right is the formal object in the matrimonial contract.

c) The essence of matrimony in facto esse, or the matrimonial state, consists in the perpetual obligation of the spouses to render mutually to each other the offices which are owed from the legitimate matrimonial contract.

3. • III. Division of matrimony.

Matrimony can be distinguished in many ways:

a) Into legitimate, ratified, ratified and consummated.

That is called legitimate which is "matrimony validly celebrated between non-baptized persons" (can. 1015, § 3).

That is called ratified which is "a valid matrimony of baptized persons... if it has not yet been completed by consummation" (can. 1015, § 1).

"Ratified and consummated, if between the spouses there has taken place the conjugal act, to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh" (ibid.).

b) Into public, secret, and clandestine.

It is public when it is celebrated in the face of the Church and in the form established by the Church, whether for the ordinary case or for extraordinary cases.

Secret matrimony, or matrimony of conscience, is indeed celebrated in the form prescribed by the Church, but is kept hidden, with the proclamations and registration in the parish books omitted.

Clandestine matrimony is one which is celebrated outside the form prescribed by the Church, namely, without the intervention of the parish priest or Ordinary or delegated priest and two witnesses in ordinary cases, or at least of two witnesses in extraordinary cases.

As will be explained more fully below, clandestine matrimony is always invalid, unless it is a question of matrimony of unbelievers, or of those baptized or educated outside the Catholic Church and never converted to it, when they contract among themselves, or also unless there has been a legitimate dispensation from the form of celebrating matrimony.

c) Into valid, invalid, putative.

It is valid when all the conditions required for validity are fulfilled.

It is invalid when some condition necessary for validity is lacking.

It is called putative when it is "an invalid matrimony..., if it was celebrated in good faith by at least one party, until each party becomes certain of its nullity" (can. 1015, § 4).

4. • IV. Goods of matrimony.

Three goods of matrimony are assigned, which honor the conjugal state and make it supernaturally meritorious, and which are customarily expressed in these words: offspring, fidelity, sacrament.

a) Offspring, i.e., "to be received and educated for the worship of God."

b) Fidelity, "which one spouse ought to preserve for the other."

c) Sacrament, i.e., "the indivisibility of matrimony, because of this, that it signifies the indivisible union of Christ and the Church" (Council of Florence, Decree for the Armenians. Denz. n. 702).

As we shall see below, a matrimony is invalid in which there has been attached a condition excluding one of these essential goods of matrimony.

5. • V. Ends of matrimony.

"The primary end of matrimony is the procreation and education of offspring; the secondary end is mutual aid and a remedy for concupiscence" (can. 1013, § 1).

It is licit to contract matrimony while intending the secondary end, even if the primary end cannot be obtained.

6. • VI. Matrimonial legislation.

a) Divine law, whether natural or positive, governs all matrimony, even of unbelievers, unless nevertheless there is question of matrimony as sacrament.

The reason is evident: all men are subjects of God.

b) The matrimony of the baptized is governed besides by ecclesiastical law.

Nor are heretics and schismatics exempt from that law, because baptism makes them subjects of the Church, unless insofar as the Church intends and declares them to be exempt.

c) The matrimony of non-baptized persons, if they contract among themselves, is not subject to ecclesiastical law, since they do not depend upon the Church.

d) If, however, an unbeliever contracts with a baptized person, he is subject to ecclesiastical law by reason of the other party.

e) The civil power has no right of establishing diriment or prohibiting impediments with respect to the baptized, "saving the competence of the civil power concerning the merely civil effects of the same matrimony" (can. 1016).

f) More probably, the civil power has the right of establishing impediments, even diriment impediments, for the marriages of unbelievers, if they contract among themselves.

g) No right seems to belong to the civil power for establishing impediments when an unbeliever contracts with a baptized party.