Appendix: On Matrimony in Civil Legislation

975. Civil matrimony is commonly called the marital contract celebrated before a civil magistrate and according to the prescriptions of civil law, and receiving force in the civil forum from the observance of the civil form alone, apart from every intervention and sanction of a religious society.

It occurs under a threefold species, and therefore is:

1° Obligatory, when it is imposed upon all indiscriminately, and all contracting parties are obliged to exhibit matrimonial consent before the civil magistrate, that their matrimony may be held as valid in the civil forum. So in many regions of Europe. And although they also can freely enter religious matrimony, nevertheless that, as a merely private matter, has no effect in the civil forum, which does not care about the matrimonial laws of the Church; indeed sometimes it is prohibited by law that religious matrimony be celebrated before civil matrimony.

2° Facultative, when to any contracting parties whatever a faculty or option is given of entering religious or civil matrimony, and of celebrating it either before a religious society or before the civil magistrate, so that each is held as valid in the civil forum and civil effects are attributed to each. So in England and in several States of North America, and also, after the concordat recently entered, in Italy.

3° Subsidiary or of necessity, when only in a case of necessity are the contracting parties permitted to enter matrimony before the civil magistrate, either because they do not have religious matrimony, as certain infidels or irreligious and indifferent persons, or because they are found incapable for religious nuptials. So it was in Austria, and now it is in Spain.

Now then:

A. As to validity:

1° Civil matrimony, both of infidels and of non-Catholics baptized outside the Catholic Church and not converted to it, contracting among themselves, is valid, provided they have the intention of entering true matrimony and no diriment impediment by which they are bound stands in the way.

2° Civil matrimony of Catholics among themselves, or between a Catholic party and a non-Catholic or infidel party, is invalid matrimony, by this fact alone, that it is not celebrated in the due form, namely before the pastor and two witnesses.

3° Civil matrimony cannot be, in the intention of Catholics, except matrimonial consent entered before the civil magistrate for this end, that matrimony may be acknowledged in the civil forum as true and legitimate and may obtain civil effects.

Hence: a) Catholics gravely sin who intend to enter true matrimony before the civil magistrate, and those who notoriously live in civil matrimony are to be held as public sinners, as living in base concubinage (S. Poen., Jan. 15, 1866), nor can they be admitted to the sacraments, unless first they either separate from each other or are joined in the forum of the Church.

b) Those civilly joined who intend to contract before the Church are to be subjected to the examination of spouses before the pastor, and their matrimony, if there is no grave reason for dispensing in this matter, is to be publicly proclaimed.

c) Civil matrimony entered exclusively has the nature of an attempted matrimony; whence if it concurs with adultery, because one party is married, from it there arises the impediment of crime (can. 1075, § 1); but if it is with cohabitation, the impediment of public honesty (can. 1078). And thence clerics in sacred orders and religious incur excommunication, indeed also those who contract with them (can. 2388).

B. As to liceity:

1° The Church rejects and condemns that merely civil matrimony can be valid or suffice for Christians; and she has proscribed this proposition, the 33rd of the Syllabus: By force of a merely civil contract there can exist among Christians a matrimony of true name. Whence it is illicit to enter civil matrimony from the intention of contracting the conjugal bond itself before the civil magistrate.

2° Nevertheless civil matrimony can be licitly entered, provided matrimony has been entered in the forum of the Church or is soon to be entered, and the intention is restricted to placing the conditions required that this matrimony be acknowledged as valid and endowed with civil effects.

3° Indeed regularly there arises an indirect obligation of contracting civil matrimony, where it is obligatory, because charity urges the contracting parties, both for themselves and for their children, to see to it that matrimony is endowed with civil effects. So S. Poen., Jan. 15, 1866.

It is preferable to contract ecclesiastical matrimony before civil matrimony. So of itself; but where this is prohibited by law, those about to be married should be warned:

a) not to enter the civil contract before it is certainly established that no impediment stands in the way of their matrimony;

b) that in the time which intervenes between civil and religious matrimony, they are not spouses, nor therefore can they act as spouses;

c) that care must be taken by them that each matrimony be celebrated on the same day, or at least that only a very slight delay intervene between the two, as S. Poen. says in the instruction cited.

C. As to the cooperation furnished by the civil magistrate and witnesses:

They can licitly assist at civil matrimony:

1° Whenever the faithful, appearing before the civil magistrate, intend only to obtain recognition of matrimony and to make the magistrate more certain concerning the matrimony contracted or to be contracted, because they intend and do nothing except what is licit.

2° Even if the contracting Catholic parties intend to enter only civil matrimony, provided a grave cause of assisting is present; for to assist as witness at an evil act is not from its nature always intrinsically evil, but is licit from a proportionate cause.

3° Indeed it does not always seem illicit if contracting parties affected by an impediment intend to enter an invalid matrimony, or if a spouse joined by valid matrimony, after a sentence of civil divorce has been obtained, while the other party is still living, attempts to enter civil matrimony: provided there is a most grave cause of avoiding damage, at least if the magistrate declares that he intends only the civil ceremony and does not care about validity in conscience and before the Church, or if this signification is sufficiently made known from the circumstances. This will appear more from what is to be said below, where we treat civil divorce. So of itself, and unless a greater evil should follow.

976. The stipulations of civil law concerning the conditions of matrimony are various according to the various regions, so that in a work of a general character it does not seem expedient to descend to the particularities of laws. They concern betrothals, preparation for matrimony such as the consent of parents and proclamations to be made, the form of celebration, the mutual rights and offices of spouses, the conditions required for consent, the capacity of persons, and impediments. Now then, the stipulations of civil law:

1° As to marriages of infidels, are valid, because in the case the civil power is competent; unless they contradict natural or divine law.

2° As to marriages of the faithful, of themselves they are not valid, because in these the civil power has no competence; excepting those which concern merely civil effects.

3° Nevertheless, by accident, they can rightly establish something as to the matter, and thus have force, insofar namely as they confirm natural, divine, or canonical law, or are conformable to them.

4° It is not licit for the faithful to observe them from an intention of acknowledging the competence of the civil power in this matter.

5° Generally, however, for avoiding inconveniences, they are to be observed insofar as they are not opposed to natural, divine, and ecclesiastical law, especially if the validity of matrimony in the civil forum depends upon them; but with that intention that the faithful do nothing other than carry out the civil ceremony.

Many stipulations concern marital or paternal power, the legitimacy of children, the regime of goods, inheritance, the capacity of the wife and of minors, etc., but these regard the virtue of justice.

977. Civil divorce (divorce civil; burgerlijke echtscheiding) is called that which is pronounced by a civil magistrate according to the prescriptions of civil law, so that in the civil forum the bond of contracted matrimony is considered now not to exist and therefore there is faculty of entering new nuptials. Now then, just as civil matrimony exists in several regions, so also civil divorce exists; concerning which these things must be noted.

A. As to validity, civil divorce:

1° Does not dissolve matrimony itself in conscience and before God, nor the matrimony of infidels, since this by its nature is indissoluble and God has not given civil law the power of dissolving it.

2° Nevertheless it can by accident declare the truth, namely if the matrimony in fact is null or has legitimately been dissolved in the cases indicated above, n. 818-821.

3° It validly dissolves a merely civil contract, so that matrimony is no longer endowed with merely civil effects which depend solely upon civil law.

B. As to liceity, the law conceding civil divorce to spouses joined by true matrimony is iniquitous, because it involves a twofold error and injury against the exclusive competence of the Church over the matrimonial bond, and against the indissolubility of ratified and consummated matrimony, and, by favoring divorces, it brings in consequences harmful to individuals, families, and society. Nevertheless:

1° It is licit, even for a Catholic party, to petition for divorce, and for the magistrate to pronounce it, when only civil matrimony is present, because the matrimony namely is not true and, for Catholics, has been declared invalid by the Church, or because it has legitimately been dissolved by the authority of the Church; provided it is not done from the mind of acknowledging the competence of the civil forum, but for the one end that civil liberty of entering new nuptials may be acquired (S. Off., Sept. 9, 1823).

2° Likewise it is licit to defend the bond of true matrimony against the party who seeks civil divorce, and to deny divorce, provided nothing is done which turns aside from the principles of natural and canonical law (S. Off., May 20, 1860; Apr. 3, 1877; June 24, 1885).

3° Indeed it does not always seem illicit to petition for and pronounce civil divorce, because it is not proved to be intrinsically evil, although it is an act of evil sound which must be made honorable; whence it will not be licit unless a) the intention of acknowledging the competence of the civil forum is absent, b) a cause altogether grave is present of avoiding an evil which otherwise cannot be avoided, c) it is not done from the intention of contracting other nuptials, d) nor from it follows a greater evil to be avoided.

Several, however, have taught that it is intrinsically evil, and that it is never licit to petition for or pronounce divorce. Civil divorce, they say, from its nature brings in the civil liberty of the parties, pronounces that true spouses henceforth before civil law have no matrimonial right or office toward each other and that the children will be illegitimate, that matrimony with a third person will be valid, and that there will be legitimate relations and legitimate children with all the consequences. But while the sacred bond of matrimony exists, that civil liberty of the parties is intrinsically evil. Therefore civil divorce is intrinsically evil. And indeed, if the law sanctioning divorce is iniquitous, likewise the sentence pronouncing it.

Others, however, judge that civil divorce is not intrinsically evil, so that for a just cause it can sometimes be petitioned for or pronounced, and they reason thus: Civil divorce is the dissolution of the civil bond alone, altogether distinct from the sacred bond; it is the dissolution of a bond not really existing and the denial of merely civil effects. But the dissolution of a bond not really existing is of itself morally indifferent, for just as civil matrimony is an act indifferent of itself with respect to sacred matrimony, so of itself is the annulment of that act indifferent. Therefore civil divorce is of itself morally indifferent; although by reason of circumstances it is often evil. - But the law is iniquitous from the intention of the legislator and from its depraved consequences; but the intention of the legislator does not fall under the law, and in the execution of the law can be separated from it; while the harmful consequences can be absent in a particular case, or be compensated by attaining a greater good or avoiding an evil, so that there is sufficient reason for permitting them.

Nor has the question been solved from authority; for the decisions of the Apostolic See, although they have been given several times, nevertheless do not seem to settle the matter, nor are they general, but rather concern particular cases. Several are more severe (for example S. Off., June 25, 1885, and May 27, 1886), but can be explained by the special circumstances of graver scandal or of cooperation in introducing the law of divorce passed from a hostile mind toward the Church, as in France; but also certain ones are milder, and specifically for Belgium, where the law has existed for a long time and was not passed from a hostile mind, through the apostolic nuncio the response was given that by the more severe declaration given for France nothing had been changed in Belgium (Sept. 14, 1886).

C. As to the cooperation furnished to civil divorce by magistrates, advocates, procurators, and other officials:

Since the petitioning for and pronouncing of civil divorce is not intrinsically evil and sometimes can be done licitly, the material cooperation furnished to it can also be licit, not only in that case in which the petition or pronouncement is licit, but even if it is illicit: provided the cooperation is mediate, a proportionately grave cause is present, and there is not a greater evil or scandal to be avoided.

D. In practice, it is certain that many and most grave evils follow from civil divorce; for from it false notions grow strong concerning the competence of the civil judge as to matrimonial causes, indeed concerning the indissolubility of matrimony; besides, effects are denied to valid matrimony, some of which flow from natural and divine law, such as the legitimacy of children afterwards begotten; finally a new civil matrimony is permitted with all civil effects.

Wherefore, that such effects can be permitted, a grave and proportionate cause is required. But this can sometimes be present both for the spouses themselves, and for advocates and procurators, and also for judges. For it greatly concerns the Church and the republic that men constituted in these offices be truly and practically Catholic. Besides this reason of the common good, reasons of the private order can urge, whether as to temporal goods, or as to the support and education of the family, or as to obtaining legitimate separation in places where the law grants no other except divorce properly so called. Therefore:

1° The cooperation of a judge morally compelled either to pronounce a sentence of divorce or to resign his office is excused, at least if he warns that he does not wish to touch anything except civil effects, or if this is sufficiently known; unless, however, a greater scandal is feared which must altogether be avoided.

2° The cooperation of a procurator and advocate is excused when either they themselves are morally compelled to act or at least the parties themselves act licitly in petitioning for divorce; but the cooperation of an advocate who freely undertakes a cause of divorce illicitly introduced is not excused, for the evils which we said follow from civil divorce are not compensated by the money which the advocate could gain.

3° Indeed the parties themselves in most grave circumstances can licitly petition for divorce in order to avoid most grave evils, for example when civil divorce appears as the one means of preventing adulterine illegitimate children from being introduced into the family. Similarly, when the tribunal would give the education of the children to the dishonest and guilty spouse, unless the innocent party first petitioned for divorce, or if the innocent party feared insufficient support in the mere separation of bodies.

But it must be acknowledged:

a) That many reasons which Catholic parties bring forward in petitioning for divorce are not sufficiently founded, and that Catholic advocates themselves do not always sufficiently weigh the gravity of the motives to be required. Whence, mindful of the decisions of the Apostolic See, they should be accustomed to have recourse to the authority of the Ordinary and ask from it in particular cases whether the introduction of a cause of divorce can be made with a safe conscience.

b) Especially in Belgium, since already the same rights and privileges generally can be obtained by separation from bed and habitation as by divorce, a sufficient cause of petitioning for divorce can hardly exist; nevertheless in a rare case it is not altogether impossible, and therefore, for judging whether a sufficient reason is present, recourse must be had to the Ordinary, as the Provincial Council of Mechlin prescribes, n. 81.

c) This also holds for France. There, however, by reason of scandal, a stricter practice had been enjoined, and therefore: whether and in what cases, with circumstances perhaps changed, it can now be licit to follow the more benign practice, this does not pertain to private persons to judge, but to the bishops, to whom therefore recourse must be had in individual cases.

On these matters Kiselstein deserves to be inspected, in Rev. Eccl. de Liege, 1923 and July 1927.

978. Separation from bed and habitation, or, as it is called, of bodies and goods (separation de corps et de biens), or from bed and table (scheiding van tafel en bed), where it is sanctioned by civil law, can a fortiori be licitly sought, not however with the mind of acknowledging the competence of the civil forum as to marriages of the faithful. Hence it is licit for the Catholic party juridically to seek separation, and for the judge to pronounce it, when there is a just cause approved by the Ordinary, another tribunal cannot be approached so that the separation may have force in the civil forum, and there is no other effect than the said separation (S. Off., Dec. 19, 1860, and Apr. 3, 1877).

979. Corollary. - If any have obtained divorce without the license of the Ordinary, pastors and confessors:

1° Should induce them to repent of the fault committed.

2° Should command the party who petitioned for divorce to procure reconciliation as far as possible, if this is morally possible and there is no sufficient cause of bodily separation.

3° Otherwise, recourse must be had to the Ordinary so that the party can be admitted to the sacraments, because separation pertains to the external forum, as being a public fact.

4° But if they have entered a new civil matrimony, they are by the fact itself infamous by infamy of law (can. 2356), they are deprived of ecclesiastical burial (can. 2357, § 2 with 1240, § 1, 6°), and they cannot be admitted to the sacraments, not even in death, unless they have ceased from concubinage and repaired the scandal; but this scandal consists in the fact that the woman continues to bear the name of the man, that both remain together in contempt of divine law, and that besides they are publicly placed in the proximate occasion of sin.

Regularly, it is not enough that they conceive the purpose of living as brother and sister, which in practice is hardly brought to execution and therefore cannot be presumed to be carried out, and which is not an apt means of removing scandal: for the fact of cohabitation of those who are civilly joined is a depraved example, of itself and necessarily inducing to evil. He who desires more should approach our Questions on Various Sins to be Remedied in Sacramental Confession, c. II, B, q. 2, VIII.