Article V: On the Essence of Matrimony

S. Th., Suppl., q. 41, a. 1; q. 42, a. 1, ad 5, and a. 4; q. 44, a. 1; q. 45, a. 1 and 2; q. 48, a. 1; III, q. 29.

772. State of the question. - Matrimony can be regarded in becoming, i.e., in the act by which it is entered or the convention by which it is constituted; and in fact, or in the constituted state.

A. Concerning matrimony in becoming, 1. formerly several thought that carnal intercourse was required for its essence, saying that matrimony is begun in espousal or consent, but that it does not yet exist as perfect except by real handing over exercised in intercourse. Whence the name: copula-theory.

Thus Julian the Pelagian, Hincmar of Rheims, Ivo of Chartres, Algerus of Liege, Gratian, and many canonists, especially of the school of Bologna, among whom was Master Roland;¹ against St. Peter Damian, and the theologians, especially of the Parisian school with Peter Lombard, who taught that matrimony is constituted by mutual consent alone. But Roland, created Pontiff under the name of Alexander III, as to substance sanctioned the doctrine of the Parisian school; but according to the opinion of Bologna he established that ratified and non-consummated matrimony is not perfectly indissoluble.

¹ The opinion afterward is attributed to Wyclif and certain Protestants; Freisen again began to defend it, Geschichte d. Kan. Eherechts, § 3, but afterward retracted it.

2. Others have been unwilling for it to be called a contract, or have been found hesitant to affirm this, both among the ancients, at the time when the definitive juridical and scholastic doctrine of matrimony had not yet been formed, and also among more recent authors; indeed, "not a few more recent writers... shrink from the word contract, as if such a name either were unbecoming to matrimony, or inserted a less right concept of matrimony."²

² Gasparri, De Matrimonio, n. 3.

The immediate end, they say, of the act of entering matrimony is not an obligation, but a consortium of life whose obligations are determined not by the will of those contracting but by the law itself. For from the fact that they called it a contract, not a few falsely deduced that matrimony is dissoluble by the will of those contracting and is ruled by the civil power, after the manner of other contracts. Whence it is not a contract, neither real nor merely consensual, but a state, an institution, a society.

Roman law never uses the word contract; St. Thomas, who had hesitantly called it a contract in the Commentary on the Sentences, in the Summa contra Gentiles no longer says this, but simply says that it is a conjunction. And although ecclesiastical documents speak of a contract, they take that contract in a broader sense; but in the entirely proper sense, and better, it is not called a contract.³

³ Thus many modern jurists in Germany, such as Scherer, Vering, Laemmer, Schulte, Breda; and in France. On this matter there can be consulted: Desforges, Etude historique sur la formation du mariage en droit romain et francais; Lefebvre, Le mariage civil n'est-il qu'un contrat? in Nouv. Rev. historique du droit, 1902; Hauriou, Precis de droit constitutionnel, 1930; G. Renard, La doctrine de l'institution; and in Vie intell., 1931: La doctrine institutionnelle du mariage; Le Fur, Le droit naturel et la theorie de l'institution; Delos, in Bull. Thom., 1930-33.

But Catholic doctrine holds that matrimony a) negatively: does not consist in carnal intercourse, but b) positively: in mutual consent externally manifested. Whence it is not a real contract, but a consensual contract.

B. Matrimony in fact is the effect resulting from the matrimonial contract or from matrimony in becoming: the very state introduced by the contract, the permanent society which is effected by consent, which is the cause of matrimony. Now it is asked in what precisely the essence of this state consists, or in what it essentially consists.

There are many things which pertain to matrimony: mutual consent, external expression of consent, mutual handing over, mutual power over the body of the partner, the nexus and permanent bond between man and woman, the mutual right to acts of themselves apt for generation or to undivided life, the obligation and offices of undivided life, the very association of life, the use of matrimony. Several of these pertain to the cause of matrimony or to the contract, which is matrimony in becoming, and therefore do not constitute it in fact, as the first three; but it is asked which among the remaining things is the very essence of the matrimonial state.

773. Thesis I. Matrimony in becoming is a contract, not real but consensual, essentially consisting in mutual consent, externally manifested and unable to be supplied, unto conjugal life, by which namely man and woman mutually hand over their bodies to each other in order to acts of themselves apt for generation; whence, although it essentially implies order to carnal intercourse, nevertheless this does not pertain to its essence or substantial integrity (can. 1081). - That matrimony, even among the baptized, is essentially a contract, is certain from the encyclical of Leo XIII Arcanum and from the encyclical of Pius XI Casti connubii; but that carnal intercourse does not pertain to its essence is common and certain doctrine, from the decree of Alexander III.

It is proved: A. That carnal intercourse does not pertain to the essence of matrimony is clear from universal tradition, which is established:

1. from the Fathers: Origen, hom. 6 on Luke; Basil, On the holy generation of Christ 3-5; Ambrose, De inst. virg. VI, 42; Jerome, against Helvidius, 4; Augustine, De bon. coni. I, 2; De nupt. et conc. I, 11; against Julian 5, 12; Pope Siricius, ep. 1 and 9;

2. from the fact that they themselves and then theologians generally teach that true matrimony existed between Adam and Eve in the earthly paradise, and between the Blessed Virgin Mary and St. Joseph (Mt. I, 20; Lk. II, 5, 48);

3. from the doctrine of Councils and Pontiffs: thus Nicholas I in the response to the Bulgarians, c. 3; the Council of Florence, saying: "the efficient cause of matrimony regularly is mutual consent expressed by words of the present"; the Council of Trent, asserting that clandestine marriages made by free consent were ratified and true marriages, sess. 24, de ref., c. 1, and that ratified non-consummated matrimony is dissolved by solemn profession of religion, can. 6;

4. from the rule of law: "Not concubitus but consent makes nuptials," and from can. 1081 and 1015, § 1;

5. from the common persuasion of the faithful, indeed of men: that a man and a woman come together without sin because they are spouses, and that they are not spouses because they come together.

B. That matrimony is a true contract is established, since it is a mutual consent unto the same juridical agreement, or consent inducing obligation in both parties from commutative justice, namely, consent into the same obligations of the matrimonial state and of undivided conjugal life. As is constantly affirmed, for example, by Innocent III, in the Decretals of Gratian, c. 26, X, IV, 1; the Council of Trent, sess. 24, de ref., c. 1; Pius VI, July 11, 1789; Pius IX, Syllabus, prop. 66 and 73; Leo XIII, enc. Arcanum; Pius XI, enc. Casti connubii; and the Code of Canon Law, can. 1012, § 1 and 2; can. 1015, § 1. That so constant a doctrine is to be understood in a broader sense, not of a properly so-called contract, could seem temerarious.

The material object of the contract is the bodies, or, as St. Thomas says, the very persons of the contracting parties: "legitimate persons for contracting," he says, q. 45, a. 5. The formal object is the association of undivided life to which they obligate themselves by the conjugal bond, which comprises the mutual, exclusive, and perpetual right over the body of the other for acts of themselves apt for generation.

Hence although matrimony cannot be valid unless it confers at least a radical right to carnal intercourse, nevertheless the use of this right or the fulfillment of the matrimonial obligation does not pertain to its essence, just as neither does the use of the thing about which one contracts pertain to the essence of a contract.⁴

⁴ Roman law indeed does not use the word contract, but jurists say "to contract matrimony," and commentators said contract. - Among ecclesiastical writers, Ambrose says, De inst. virg., c. VI: "Not the deflowering of a virgin makes marriage, but the conjugal pact." The same doctrine is handed down by the Decree of Gratian, p. 2, c. 27, q. 2, can. 5. Peter Lombard, in IV Sent. d. 27, c. 3, uses the expression: conjugal pact; moreover by comparing betrothals and matrimony, he says that betrothals are a promise concerning the future, matrimony a promise concerning the present, and consequently this is a contract just as that is. Likewise Abelard, Ep. Th. chr., c. 31: confederation concerning marriage to be contracted. Likewise St. Raymond, in Summa, IV, t. 2, § 2; St. Bonaventure, in IV, d. 27, a. 2, q. 1 and d. 29, a. un. q. 3; St. Albert the Great, in IV, d. 27, a. 4, 6, 7 and 8, say contract. And this doctrine occurs throughout St. Thomas: thus for example q. 45, a. 1 and 2: the matrimonial conjunction is made in the manner of obligation in material contracts; and a. 2: in matrimony a contract is made between man and woman; and a. 3, ad 2: also in other contracts; and a. 5: in occult matrimony the due matter is preserved, because there are legitimate persons there for contracting. And q. 47, a. 1: in matrimony there is a certain contract; and a. 3: fear takes away the perpetuity of the contract, and therefore... takes away matrimony; and a. 5: in other contracts obligation is made under a condition..., therefore since matrimony is a contract... And q. 49, a. 3, concerning the goods of matrimony it is said that they are caused from the very conjugal pact. And q. 50, impediments diriment the contract on the part of the contract, or on the part of those contracting: in the first way, since the contract of matrimony is made through voluntary consent, which is taken away by ignorance and by violence. And q. 51, a. 2: just as purchase is a certain contract, so also is matrimony; q. 52, a. 1: in the contract of matrimony one is obligated to the other to render the debt; ignorance of impotence takes away the contract; q. 53, a. 1: one contracting matrimony after a simple vow of continence sins; nevertheless because it is a true contract...; q. 58, a. 1: in matrimony there is a certain contract... whence as in other contracts; similarly a. 3; and a. 5: matrimony, since it is made through the manner of a certain contract, etc. Therefore the Holy Doctor by no means spoke hesitantly, as someone has said. But if in the Summa contra Gentiles he does not speak of contract, the reason is that he does not explain the whole doctrine of matrimony, but has relatively few things, namely, concerning the state of matrimony in fact and concerning unity and indissolubility, but nothing concerning the cause and matrimony in becoming.

774. They object: A. against the first part. Intercourse is of the essence of matrimony.

For 1. Christian matrimony signifies the union of Christ with the Church; but this union is not signified except by carnal conjunction; therefore carnal conjunction pertains to the essence of matrimony. - Resp. I distinguish: Christian matrimony signifies the union of Christ with the Church through grace and charity, or a moral union, I concede; it signifies physical union, I subdistinguish: through the mediation of conjugal intercourse, I concede; essentially, I deny.

2. St. Paul explains this union, Eph. V, 31 sq.: "They shall be two in one flesh; this is a great sacrament. But I speak: in Christ and in the Church"; therefore carnal union pertains to the essence of matrimony. - Resp. The words: they shall be two in one flesh, do not necessarily nor first signify carnal union, but the indissoluble bond between spouses with a right to the body of the partner, and the bond of love by which he loves her as his own flesh. For the Apostle alludes to the words of Adam: "This now is bone of my bones and flesh of my flesh... wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh," i.e., in one principle of generation. This is also verified before the spouses exercise intercourse; whence in these words carnal intercourse is not directly treated.

3. Matrimony is in the office of generation and as a remedy of concupiscence; but neither is had except through intercourse; therefore intercourse pertains to the essence of matrimony. - Resp. I deny the consequence, because the attainment of the end of some thing is not of its essence.

Therefore carnal intercourse is only of the secondary and accidental integrity of matrimony (q. 42, a. 4).

B. against the other part. Matrimony is not a properly so-called contract, but an institution and society.

For 1. A contract immediately produces obligations and rights; the matrimonial convention immediately produces a state. - Resp.: matrimony is at the same time a state and a contract; essentially and in being it is an institution and society, but causally and in becoming it is a true contract. For matrimony immediately produces the conjugal state, but as obligatory, and all its obligations. It also grants power and right: it grants property of the body, namely, dominion over the body of the partner. Therefore it is a true contract.

2. A contract is an act which produces obligation only between the contracting parties, and indeed between equals, and immutably; matrimony produces obligations also in others, is hierarchical, and over the course of centuries has adapted itself to various circumstances. - Resp. Matrimony immediately produces obligation in the contracting parties, mediately and consequently in others; it is between equals as to the essential right and primary object, carnal intercourse, although spouses are not equal as to domestic life; it is immutable in essentials, although it has undergone accidental modifications. Other contracts also can mediately obligate a third party, as lease; institute a hierarchy, as for example a contract of service; nor are they always immutable in all things.

3. If matrimony were a contract, it could be dissolved by mutual consent, as contracts can, and be ruled by the civil power after the manner of other contracts. - Resp. I distinguish: if it were a contract of merely human institution concerning temporal things, I concede; if it were a natural contract instituted by God, especially not merely profane, but religious in some sense, I deny.

775. Corollaries. - From the foregoing the following things are drawn:

1. Matrimony is a contract, because essentially it is the consent of two persons in the same thing, and indeed perfectly bilateral.

2. It is a most excellent contract, both by reason of the object, which is nothing less than the very persons of the contracting parties, and by reason of the end, which is the legitimate procreation of offspring and their education unto the worship of God.

3. It is a natural contract, as indicated and imposed by nature itself.

4. Yet therefore it is not merely profane, but of its own accord is religious, says Leo XIII, and this independently of sacramental dignity; namely, it is religious and sacred, not indeed intrinsically and essentially, but according to an extrinsic reason, in the present supernatural order: both by reason of its immediately divine origin; and by reason of the signification of a sacred thing, which is an adumbration of the union of the incarnate Word with human nature; and by reason of the end to which it is ordered, namely, to procreate and educate children for God unto the beatific vision; and, Pius XI adds: "from the same natural office of marriage, instituted by the most provident mind of God the Creator, that it should be as it were a certain vehicle for transmitting life, by which parents serve the divine omnipotence as it were as ministers." Wherefore it is "intimately joined with religion and the order of sacred things," and by this reason, Leo XIII says, "there is in it something sacred and religious, not adventitious, but innate, not received from men but implanted by nature." And therefore the monuments of antiquity and the customs and institutions of peoples testify that matrimony is a thing joined with religion and sanctity, and that it was not accustomed to be done without religious ceremonies.

5. It is a contract not merely private, as being ordered not primarily to the good of the contracting parties but to the common good; its character does not depend on free convention, but is determined by nature and the author of nature.

6. It is a singular contract, both because matrimonial consent can be supplied by no human law (can. 1081, § 1), and because its laws, as instituted by God and nature, cannot be subject to human laws or decrees or to the contrary agreement of the spouses themselves, and because it is of itself perpetual and indissoluble.

7. Therefore matrimony "is constituted by divine and human will together: from God are the very institution, ends, laws, goods of matrimony; but with God giving and assisting, from men there is, through the generous handing over of one's own person to the other for the whole time of life, each particular matrimony (between this man, namely, and this woman), joined with the offices and goods established by God." Thus Pius XI.

776. Thesis II. Matrimony in fact essentially consists in the formal nexus or bond of the moral order, of itself permanent, which arises from the contract, or in the relation of conjunction, by which spouses are united and bound to each other and formally are spouses or husband and wife; from which further there is had the mutual right of demanding, just as the mutual obligation of preserving fidelity and fulfilling the duties of marriage.

The doctrine is indicated in Scripture. Gen. II, 24: "man... shall cleave to his wife: and they shall be two in one flesh"; alluding to which Christ says, Mt. XIX, 6: "What therefore God has joined, let not man separate." And the Apostle, I Cor. VII, holds matrimony as a bond or tie, by which a man is bound to his wife (v. 27), and a woman is bound for as much time as her husband lives (v. 39).

Similarly in the documents of Tradition, for example, Alexander III: "Since matrimony is a conjunction of male and female..."; the Council of Florence says: "the bond of matrimony... perpetual," and Trent, sess. 24, says: "the perpetual and indissoluble nexus of matrimony," by which "bond two only are joined and united, Christ the Lord taught more openly... and immediately confirmed the firmness of the same nexus..."

It is proved from the natural ordination of matrimony, according to St. Thomas, q. 44, a. 1:

1. Matrimony is a conjunction: "Conjunction implies a certain uniting; whence wherever there is a uniting of some things, there is some conjunction. But those things which are ordered to one thing are said to be united in order to that, as many men are united to the executing of one military service or business, from which they are called fellow-soldiers to each other, or business partners. And therefore since through matrimony certain persons are ordered to one generation and education of offspring, and again to one domestic life, it is established that in matrimony there is some conjunction, according to which they are called husband and wife; and such a conjunction, from the fact that it is ordered to one thing, is matrimony." Hence Gen. II, 24: "they shall be two in one flesh."

2. This conjunction is in the genus of relation: "Relation is according to that by which certain things are referred to each other. But according to matrimony certain persons are referred to each other: for the man is called the husband of the wife, and the wife the wife of the husband. Therefore matrimony is in the genus of relation, nor is it anything other than conjunction" namely, to one end, that is, to one generation and education of offspring, and to one domestic life.

The aforesaid "relation which is matrimony, from one side has unity in both extremes, namely, on the part of the cause (namely final), because it is ordered to the same generation in number; but on the part of the subject it has diversity according to number, and therefore this relation is one on the part of the cause, and multiple on the part of the subject. And according as it is multiple on the part of the subject, it is signified by these names: wife and husband; but according as it is one, it is signified by this name: matrimony" (ad 3).

They object: Matrimony is not a conjunction. For a bond is distinguished from the conjunction itself. Whence, if it is a bond, it is not a conjunction. - Resp. Matrimony is a bond formally and not effectively; and therefore it is the conjunction itself (ad 1). Namely, bond is not taken causally for the thing which binds: thus it would be the contract; but it is the passive conjunction resulting from the causal bond.

777. Corollaries. - Hence it is understood:

1. How rightly matrimony is defined as a conjunction, and indeed marital, by which they are husband and wife, because this conjugal bond has its foundation and arises from the mutual handing over made, and not from the mere promise concerning the future, as the obligating bond which arises from betrothals.

2. Just as every society formally is a relation or conjunction of those united, so also is conjugal society. Whether it is a relation of reason or a real relation is disputed, as for society; more commonly they teach that it is real.

3. Yet it is a special relation, of the moral order, importing mutual rights and obligations.

4. It is a mutual relation, whence the adage: Matrimony cannot limp. As St. Thomas says, q. 47, a. 4: "since matrimony is a certain relation, and a relation cannot arise in one of the extremes without this, that it come to be in the other, therefore whatever impedes matrimony in one impedes it in the other, because it cannot be that someone be the husband of a non-wife, or that someone be a wife not having a husband, just as neither can there be a mother not having a son; and therefore it is commonly said that matrimony does not limp."

Hence an unbeliever, although he is not held by the impediments and matrimonial laws of ecclesiastical right, nevertheless, even after a dispensation has been obtained upon the impediment of disparity of cult, cannot validly contract matrimony with a Catholic party unless he observes the statutes of canon law: for by these the faithful party is bound, and therefore indirectly the unbeliever.

5. Among all the things related above which pertain to matrimony, matrimony is understood not to consist essentially:

a) neither in mutual consent, whether external or internal, nor in the mutual handing over of bodies, because those things pass away while matrimony remains;

b) nor in the mutual right to intercourse or in its office, because the right to intercourse, or the office, is something consequent upon constituted matrimony, and can be taken away while matrimony remains: for therefore spouses have the right to intercourse, or the obligation, because they have been joined in matrimony;

c) nor in the use of marriage or intercourse, because use and operation supposes essence. Whence St. Thomas, q. 42, a. 4: "therefore carnal commingling will be of the second integrity of matrimony (which consists in operation), and not of the first," which is in the being of the thing.

6. Matrimony does not consist in the union of souls, as is attributed to Fichte, which is required that matrimony turn out well: for mutual love is a necessary condition that matrimony obtain happy effects and for sustaining its burdens. Whence St. Thomas, q. 44, a. 1: "The conjunction of bodies and of souls follows upon matrimony." Sometimes, however, union of souls is understood as the very mutual consent to matrimony.

7. Nor a fortiori does it consist in communion of goods of fortune, although this at least in some measure is of fittingness.

8. Several modern manuals do not always speak rightly when they say that the bond consists of mutual right and obligation, or that the essence of conjugal life consists in mutual right and obligation; but it ought to be said that the essence of matrimony or the bond carries with it right and obligation and that these result from it. - Unless by the name of obligation there is understood the bond by which they are obligated to each other, or a radical obligation or tie, in which sense St. Thomas seems to speak, q. 41, a. 1 and q. 42, a. 1, ad 5.

778. Observation. - Since according to essence it is the conjugal bond, matrimony is said of this most properly and essentially; of the contract only causally, which properly is not matrimony but the cause of matrimony. Whence matrimony is more a bond than a contract.