Treatise: On Matrimony

S. Th., Suppl., q. 44.

746. The last sacrament is Matrimony. - As human society, as to bodily life, must be ruled by superiors and propagated and perpetuated by generation, so the sacrament of Order provides for the propagation of sacred ministers who must preside over the spiritual society of the Church, but Matrimony is the sacrament by which provision is supernaturally made for the bodily propagation of the Church of Christ. "Propagators and orderers of bodily life," says St. Thomas, c. Gent. IV, 58, "are regarded according to two things, namely, according to natural origin, which pertains to parents; and according to political rule, through which the peaceful life of man is preserved, and this pertains to kings and princes. Thus, therefore, it is in the spiritual life. For there are some propagators and conservers of the spiritual life according to spiritual ministry only, to which the sacrament of Order pertains; but some according to the bodily and spiritual together, which is done through the sacrament of Matrimony, by which man and woman come together for generating offspring and educating them for divine worship."

747. Matrimony according to the name is as if matris munium, i.e., the function or office of the mother, because a woman therefore marries that she may become a mother, and childbirth is more burdensome for her than for the father; since, says Gregory IX, l. III Decr. t. 33, c. 2, the child still an infant is known to need maternal solace more than paternal, and to have been burdensome to the mother before birth, painful in birth, laborious after birth... and from this the legitimate joining of male and female is called matrimony rather than patrimony. Patrimony, on the contrary, designates the external goods necessary to the family, because it belongs to the father or man to seek sustenance.

Thus a) matrimony is named according to effect;

b) according to the essence, which is the conjunction of man and woman, it is called wedlock (coniugium), i.e., the conjunction of two under the same yoke, because man and woman are bound, as it were, to one yoke, since they subject themselves to one and the same bond for bearing together the burdens of matrimony; likewise consortium, because they are joined among themselves by the closest society of bodies and souls, participants in the same lot or condition;

c) according to the cause, however, which is betrothal or the solemnity of the contract by which it is perfected: marriage (connubium) or nuptials (nuptiae) (from cloud or veil), because in antiquity the bride, when she was handed over to the man, covered her head with a veil, for the sake of modesty and submission.¹

¹ Nuptials sometimes, however, specially signified the solemnities and festivities joined with the matrimonial contract, or even the conjugal intercourse itself.

748. The real definition of Matrimony is handed down by the Scholastics after the Master of the Sentences, l. IV, d. 27: The marital conjunction of man and woman between legitimate persons, retaining an undivided manner of life. It is said:

1. conjunction, as the genus, which word is taken either causally, actively and in becoming, for the transient act of mutual consent, or the contract by which man and woman promise conjugal fidelity to each other; or essentially, as it were passively and in fact, for the conjugal society and state, or the permanent bond which results from mutual consent;

2. marital, as the specific difference taken from the proper end: namely, man and woman are joined into one legitimate principle of generation, and thus matrimony is distinguished from every other conjunction, for example, filial, fraternal, friendly, business, etc.; it is called marital from the husband, because the husband is the head of the matrimonial conjunction;

3. of man and woman, so that the subject of matrimony may be signified, which requires diversity of sexes;

4. between legitimate persons, so that the condition of the subject may be indicated, namely, that they are fit for contracting and impeded by no law or entangled by no impediment;

5. retaining an undivided manner of life, by which are signified the two properties of matrimony: unity and indissolubility, namely, that one undivided life, i.e., of one man and one woman, is retained perpetually and indissolubly until the death of either.

But since the very essence of matrimony among the baptized has been elevated to the dignity of a sacrament, the definition of the sacrament is the same; but that this may be signified explicitly, there can be added to the definition: and signifying the grace necessary for spouses to be conferred.

In most recent times another definition is accustomed to be handed down: a legitimate convention or union between a man and a woman, conferring upon them a mutual, perpetual, and exclusive right, both to acts of themselves apt for generation and to the consortium of common life.

Thus conformably to can. 1081, § 2, and 1128. It is said:

1. convention or union, which, if taken actively, i.e., for the act or mutual consent by which man and woman join themselves, will be matrimony in becoming; if it is taken passively, i.e., for the permanent moral bond which arises from that mutual consent, it will be matrimony in fact;

2. legitimate, i.e., entered according to the laws, both natural and positive, to which the contracting persons are subject and by which their contract is either confirmed or invalidated; but persons who according to those laws can validly and licitly enter matrimony are called capable by law;

3. between a man and a woman, by which words the subject of this contract is designated, which requires diversity of sexes according to the ordination of nature;

4. conferring a right to acts of themselves apt for the generation of offspring, by which words is designated the essential object, or the right to an act of itself apt for generation, and the primary end of matrimony, namely, the procreation of offspring and consequent education.

Let it be noted, however, that for the essence of matrimony a right to acts serving generation suffices, although there is not the use of that right, as in the matrimony of the Blessed Virgin and St. Joseph; or although accidentally generation does not in fact follow, as in sterile matrimony. Therefore let there be carefully distinguished: a) the right of using the body of the spouse for the conjugal act, which is called the right of asking the debt; b) the exercise or use of this right, which does not pertain to the essence of matrimony.

5. and to the consortium of common life, which is the secondary end of matrimony.

Among the Scholastics, as we have seen, the object and end of matrimony is called an undivided manner of life, which consists essentially in the mutual right and office as to bodies in order to the conjugal act; integrally, however, it also contains a common bed, table, and cohabitation.

749. Qualifications of matrimony and various divisions. - Matrimony can be entered between baptized persons, and then it is called Christian, and if it is valid, it is a sacrament; or between non-baptized persons, and then it is a merely natural contract, and exists only as it is in the office of nature. Hence:

A. By reason of property and dignity, the former, if it is valid, is called ratified (ratum) (bezegeld), i.e., firm, made firm by the ratification, approbation, and sacrament of the Church; the latter between non-baptized persons, if it is valid, is called legitimate (wettelijk).

Each, by reason of effect, is consummated (voltrokken of geslachtelijk voltooid).

Thus, if after matrimony has been entered a conjugal act has taken place between the spouses, to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh, i.e., carnal intercourse of itself apt for generation; in this case Christian matrimony is called ratified and consummated (can. 1015).

B. By reason of celebration, matrimony is 1. public, i.e., authentic, which is celebrated publicly in the face of the Church, i.e., after proclamations have been premised, the form prescribed by the Church being observed; and it is a) solemn, which is done with the accidental solemnity of nuptial blessing and festivity, or b) less solemn, in which only the substantial solemnities are observed;

2. clandestine, which has been contracted with the prescribed form omitted;

3. occult, which, the prescribed form being observed but the proclamations omitted, is contracted secretly, and is called a marriage of conscience if it is done by that law that it ought not be published and manifested.

Only from a most grave and most urgent cause, and by the local Ordinary himself - the vicar general being excluded without a special mandate - can it be permitted that a marriage of conscience be entered (can. 1104), namely, if there is a moral necessity of now entering matrimony for consulting the difficulties of conscience, and at the same time there is a moral impossibility of celebrating it publicly because of civil law or other circumstances. In which case, the Ordinary, pastor, and assisting witnesses are bound under grave sin to secrecy; and also the other spouse, if the other does not consent to publication (can. 1105). The contracted matrimony is not inscribed in the ordinary book of marriages, but in a special book to be kept in the secret archive of the episcopal curia; likewise children born or to be born, after Baptism has been received, are not to be inscribed in the parish book of the baptized, but in the secret book preserved in the episcopal Curia (can. 1107). The obligation of preserving secrecy on the part of the Ordinary ceases: a) if some scandal or grave injury against the sanctity of matrimony threatens; b) or if the parents do not take care that children received from such a matrimony be baptized; c) or if they take care that they be baptized with false names expressed, without meanwhile providing to the Ordinary within thirty days notice of the offspring received and baptized with a sincere indication of the parents; d) or if they neglect the Christian education of the children (can. 1106).

From a marriage of conscience differs a morganatic marriage, which is contracted by a noble man with a woman of more humble condition, by this agreement, that both the wife and the children born from it, content with congruous sustenance or a certain part of goods, are excluded from dignities, titles, and succession of goods.

C. By reason of validity, it is 1. true or valid, which has been entered with all the conditions required for validity, and therefore without a diriment impediment, and it is licit or illicit, according as every prohibition or impeding impediment is also absent, or on the contrary is present; - or 2. invalid, null, or void: this, however, can be a) attempted when it is entered in bad faith, by both parties or by either party, dissembling, for example, an impediment; or b) putative when it has been celebrated before the Church in good faith, at least on one side, until the nullity is certainly established to both, and this suffices for the legitimacy of the offspring - Comm. I. C., June 26, 1949.

Moreover matrimony is called presumed, which does not exist, but by law, a certain fact having been posited, is presumed as existing (cf. can. 1972), as if two contract externally but one internally refuses to give consent. Thus formerly, once intercourse had taken place between the betrothed, by law they were presumed to have consented to matrimony.

750. Division of the treatise. - Since the sacrament of Matrimony is nothing other than the very contract which by the institution of Christ has been made a sacred sign and cause of grace, after each has been spoken of according to itself, we shall speak of both together as to the remaining things. But the treatise is divided into four parts.

The first part is: On Matrimony itself, namely, 1. on Matrimony as it is in the office of nature: a) on origin, b) on precept, c) on honesty, d) on ends, and e) on the essence of matrimony; - 2. on Matrimony as it is a sacrament: a) on institution, b) on the essence and constitutive parts, c) on the minister; - 3. on the effects and goods of Matrimony; - 4. on the cause of Matrimony or on consent: a) on the qualities, and b) on the defects of consent; - 5. on the properties of Matrimony: a) on unity, b) on indissolubility; - 6. on the governance of Matrimony.

The second part is: On the celebration of Matrimony: 1. on preparation for Matrimony or on betrothals; - 2. on the preliminaries to Matrimony or on the proclamation of banns; - 3. on the rite itself or form of celebration.

The third part is: On the impediments of Matrimony: 1. on impediments in general; - 2. on impeding impediments; - 3. on diriment impediments: a) on age, b) on impotence, c) on bond, d) on disparity of cult, e) on order and vow, f) on abduction and crime, g) on carnal, spiritual, and legal kinship, h) on affinity and public honesty; - 4. on dispensation from impediments; - 5. on convalidation of Matrimony.

The fourth part is: On the obligations of spouses: 1. on the conjugal debt: a) on the liceity of conjugal intercourse, b) on its circumstances, c) on acts connected with it, d) on excess, and e) on defect in the use of marriage; - 2. on cohabitation; - 3. on mutual love and assistance.

There is added an appendix on matrimony in civil legislation.

More recent authors for the most part follow the chronological order of time, or the order of the code of canon law; but since it is not the logical order conformable to the very nature of things, but either chosen for a peculiar end, it does not furnish the foundation for a truly scientific division, nor is it suited to a synthetic exposition.

751. Importance of the treatise. - This is clear a) generally from the fact that, if the source and origin of the family and of the whole human society consists in matrimony, as Leo XIII says in the encyclical Arcanum, then on the honesty and sanctity of matrimony the salvation of the whole society depends: namely, of the family, the State, and the Church; whence, the sanctity of marriage having been violated, history proves that peoples have collapsed into immorality and irreligiosity; - b) specially, because in our times enemies of religion and of all human society especially attack the very "principle and foundation of human fellowship," as Pius XI says in the encyclical Casti connubii, and its sanctity. Therefore it belongs to the priest to defend and promote it for the public and private good together.

Hence in the pastoral ministry the treatise on Matrimony is one of the more useful and more necessary; for which reason priests must know very well the doctrine, obligations, and laws of matrimony. This indeed is not easy: for marriage presents an altogether varied aspect, not only ethical, but also social, dogmatic, pastoral, liturgical, and juridical, since it is ruled by canon law together with civil law.²

² On Matrimony the following can usefully be consulted, besides the two encyclicals of Leo XIII, Arcanum, Feb. 10, 1880, and of Pius XI, Casti connubii, Dec. 31, 1930: St. Thomas, in Suppl., qq. 41-68; c. Gent. III, 122-126; 136-137, and IV, 78, with commentators such as Ferrariensis, Sylvius, Gonet, and Billuart; P. Ledesma, De magno Matrimonii sacramento; Th. Sanchez, De sancto Matrimonii sacramento; De Smet, De Sponsalibus et Matrimonio; Tanquerey, De Matrimonio, in his dogmatic and moral theology; Rosset, De Sacramento Matrimonii, a dogmatic, moral, canonical, liturgical, and judicial treatise; Vermeersch, De Castitate, and Th. M. III and IV; Theologia Mechliniensis, Tractatus de Matrimonio, 7th ed. edited by A. Gougnard; Dict. de Theol., art. Mariage.

Especially for more speculative questions: Palmieri, De Matrimonio; Billot, Hugon, Diekamp and other dogmaticians; Dermine, La doctrine du Mariage chretien; J. Leclercq, La Famille; G. Renard, La Theorie de l'institution; A. W. Hoegen, Over den zin van het Huwelijk, een moraal-theologische studie.

For moral and practical questions: St. Alphonsus, Marc, Aertnijs-Damen, Ballerini, Lehmkuhl, Haine, Genicot-Salsmans, Noldin-Schmitt, Prummer, etc.; Chretien, Praelectiones de Matrimonio.

Among canonists: St. Raymundus de Pennafort; Reiffenstuel; Feye, De Impedimentis et Dispensationibus matrimonialibus; De Becker, De Sponsalibus et Matrimonio; Gasparri, Tractatus canonicus de Matrimonio, 1892; new ed. after the code, 1932; Vlaming, Praelectiones de iure matrimoniali; Chelodi, Ius matrimoniale; Wernz-Vidal, Ius canonicum, V; Cappello, Tractatus canonico-moralis de Sacramentis, III; Blat, Commentarium textus Codicis iuris canonici, III; Claeys-Bouaert and Simenon, Manuale Iuris canonici, II; Schaeffer, Das Eherecht nach dem Codex; Knecht, Grundriss des Eherechts; v. Scherer, Handbuch des Kirchenrechts, II; Linneborn, Grundriss des Eherechts nach dem Codex iuris canonici; Leitner, Lehrbuch des Kirch. Eherechtes; Triebs, Praktisches Handbuch des geltenden Eherechts; Vromant, De Matrimonio.

Among more practical little works: Durieux, Le Mariage en Droit canonique; Salmon, De Matrimonii sacramento tractatus pastoralis; De Smet, Praxis matrimonialis ad usum parochi et confessarii (new ed. edited by Verhamme); Bender, Huwelijk en Huwelijksbeletselen; Tunnissen and Vlaming, Huwelijkswetgeving der Katholieke Kerk; Rud. Geis, Sexualethik; Schilgen, Im Dienste des Schopfers; Payen, De Matrimonio in missionibus.

Among commentators on the encyclical Casti connubii: Villain of Action populaire, L'Encyclique sur le Mariage chretien "Casti connubii"; Vermeersch, Catechisme du Mariage chretien d'apres l'encyclique Casti connubii; Rud. Geis, Die Ehe-Enzyklika Pius XI Casti connubii; v. Acken, De Ehe-Enzyklika Pius XI bearbeitet in Frage und Antwort; B. Lavaud, Le monde moderne et le mariage chretien.

Among orators: Monsabre, Le Mariage.