Appendix I. On Civil Matrimony.

677. Definition. Civil matrimony is called matrimonial consent declared before a civil magistrate for this end, that the matrimony be recognized in the civil forum as true and legitimate.

a. Matrimonial consent. Civil authority cannot require that those contracting civilly have the intention of entering true matrimony, but it can require only this, that they perform the rite prescribed by civil authority for this end, that their matrimony be held as true and legitimate. The first is always illicit, but the other is not illicit in itself, provided a true and legitimate matrimony has either already been entered or is soon to be entered. For in itself it is not prohibited that those about to marry appear before a civil magistrate and under a certain rite make him certain concerning the matrimony contracted or to be contracted, so that their matrimony may obtain the effects of legitimate matrimony.

b. That it be recognized as true. In antiquity the civil power itself also recognized as valid those marriages which were considered valid in the forum of the Church, and it attributed civil effects to them. But in recent time it arrogates to itself the right of establishing that matrimony can or must be entered (also) before the civil magistrate, and it holds this matrimony as valid and licit, even if in the forum of the Church it is invalid or illicit because of a diriment or prohibiting impediment.

c. The faithful who contract civil matrimony sin gravely if they intend to enter true matrimony before the civil magistrate; for true matrimony of itself can be entered licitly only in the forum of the Church.

678. Division. A threefold civil matrimony is distinguished: obligatory, facultative, and of necessity.

a. Obligatory civil matrimony (die obligatorische oder Zwangs-Zivilehe) is had when all contracting parties are obliged to furnish matrimonial consent before the civil magistrate so that their matrimony may be held as valid in the civil forum.

In various regions of Europe obligatory civil matrimony now flourishes, namely in Germany, in France, in Italy, in Hungary, in Belgium, in Switzerland.

Where obligatory civil matrimony is prescribed, the civil authority, caring nothing for the matrimonial laws of the Church, holds only the matrimony entered before a civil magistrate as true and valid matrimony. In like manner, in all matrimonial causes, whether they refer to matrimony itself or to betrothals, it attributes competence for judging them to the civil forum alone.

b. Facultative civil matrimony (die fakultative oder Wahl-Zivilehe) is had when to any contracting parties a faculty or option is given of entering matrimony either before the Church or before the civil magistrate. Each matrimony is held as valid in the civil forum, and civil effects are attributed to each.

Facultative civil matrimony flourishes in England and in North America.

c. Civil matrimony of necessity (die Not-Zivilehe) is had when contracting parties are permitted only in a case of necessity to enter matrimony before the civil magistrate.

It is called matrimony of necessity because it is admitted only in a case of necessity. A twofold necessity is distinguished: absolute, when those about to marry cannot contract because an ecclesiastical impediment stands in the way of matrimony which civil law does not recognize; relative, when those about to marry cannot enter ecclesiastical matrimony because they adhere to no religious confession.

Civil matrimony of necessity flourishes in Austria, where those about to marry, who cannot contract in the forum of the Church because of some impediment, are permitted to have the matrimony promulgated by the political power and to enter it before a political official, provided an impediment of civil law does not stand in the way.

679. On the liciety of civil matrimony. 1. The Church rejects and condemns any civil matrimony whatever; therefore she proscribed this proposition: "By force of the merely civil contract, a matrimony of true name can exist between Christians."¹

And indeed she condemns it by right: a. Laws concerning civil matrimony have been issued by an authority to which no right competes concerning matrimony. b. Matrimony is stripped of that sanctity which belongs to it by its own nature, and the same is treated as a merely profane thing. c. Subjects are compelled, against liberty of conscience, to posit an action prohibited by ecclesiastical law. d. The civil power protects illicit unions by its authority. e. The same power unjustly dissolves marriages valid before God and the Church. f. It contemns the rights of the Church and promotes indifferentism, because it admits marriages to which there stands opposed the impediment of mixed religion, indeed even of disparity of cult. g. It promotes the false doctrine by which the contract can be separated from the sacrament.

2. Although any civil matrimony whatsoever is illicit of itself, nevertheless not every species of the same is to be rejected in an equal way.

The least degree of malice belongs to civil matrimony of relative necessity; the greatest to that of absolute necessity. Authors dispute whether obligatory civil matrimony or facultative civil matrimony is more to be reproved.²

3. Obligatory civil matrimony can be entered licitly, provided matrimony in the forum of the Church has either already been entered or is soon to be entered, and the intention of contracting the matrimonial bond itself before the civil magistrate is excluded. For from a just cause it can be permitted that the conditions which civil authority exacts be posited, so that the matrimony may be recognized as valid and endowed with civil effects.

a. Whether the civil act is performed before or after ecclesiastical matrimony, those about to marry are to be admonished that they intend to perform nothing other than a merely civil ceremony, so that civil effects may be attributed to their matrimony.³

b. Where civil law requires that civil matrimony be contracted before ecclesiastical matrimony, this can licitly be done. But it is better that civil matrimony be done after ecclesiastical matrimony has already been entered. For the nature of the thing requires that the principal precede the accessory; but the principal is the matrimony itself, which is contracted before the Church, and the accessory is the civil effects which are attributed to matrimony through civil matrimony. Moreover, in this way the inconveniences which can arise from this are guarded against, namely that one party, after the civil matrimony has already been entered, refuses to contract in the face of the Church.

c. Therefore where civil matrimony must be entered before ecclesiastical matrimony, those about to marry must be admonished: alpha. that they not enter the civil contract before it is certainly established to them that no impediment stands in the way of ecclesiastical matrimony; beta. that in the time which intervenes between civil and ecclesiastical matrimony, they are not spouses but betrothed persons, and therefore must live after the manner of betrothed persons; gamma. that they must take care that each matrimony be celebrated on the same day, or at least that only a slight delay intervene between the two.

4. Ordinarily there exists an indirect obligation of contracting obligatory civil matrimony; for charity both toward themselves and toward future offspring requires that the contracting parties take care that their matrimony be endowed with civil effects.

This indirect obligation is grave or light according as the harms and inconveniences which arise from omitted civil matrimony are great or light. That the faithful may be preserved from these harms, in some regions, e.g. in Belgium, it has been prohibited by the bishops that parish priests assist at marriages unless the performance of civil matrimony has been established.

¹ Cf. Syllabus, n. 33; Encyclical of Leo XIII, Arcanum, 10 Feb. 1880.

² Cf. Schnitzer, p. 65 ff.

³ Benedict XIV, Redditae sunt nobis, 17 Sept. 1746.

680. On the value of civil matrimony. 1. Civil matrimony entered between heretics, and indeed with the intention of contracting true matrimony, is valid, provided some diriment impediment does not stand in the way of it; indeed it is also licit where there is question of marriages of heretics to be contracted among themselves.¹ But if some diriment impediment stands in the way of it, civil matrimony is nothing except shameful concubinage.

2. Civil matrimony entered between Catholics is invalid, however much no other diriment impediment stands in the way, only because it is contracted clandestinely.

a. Those who notoriously live in civil matrimony are to be held as public sinners, because they live in manifest concubinage, and they cannot be admitted to the sacraments unless they first are either separated from one another or joined in the forum of the Church.

b. If those civilly joined present themselves to the parish priest for contracting matrimony in the face of the Church, they must be subjected to the examination of spouses; and if no impediment stands in the way, unless dispensation is sought, their matrimony must be proclaimed, after which they can be joined in the face of the Church.

Note. Mixed civil matrimony is everywhere invalid, unless it has been entered in the face of the Church with the due conditions; the German empire and the kingdom of Hungary are no longer excepted.

3. Since invalid civil matrimony has the character of an attempted matrimony, these things follow from it:

a. If it concurs with adultery, i.e. if one party is married, from it there arises the impediment of crime.

b. Clerics constituted in sacred orders and regulars (or nuns) bound by a solemn vow of chastity, who contract civil matrimony, incur an excommunication reserved to the ordinary.²

c. Clerics and religious who attempt civil matrimony contract irregularity.³

¹ S.C.C., 2 Aug. 1907, n. 11, 3.

² Const. Apostolicae sedis III, 1; Cn. 2388, 2.

³ Cn. 985, 3.

681. Whether magistrates and witnesses can licitly assist at civil matrimony. a. They can licitly assist as often as the faithful appearing before the civil magistrate intend only to make him certain concerning the matrimony contracted or to be contracted; for they assist at a licit act.

b. If it is established that those about to marry from an evil will do not wish to contract ecclesiastical matrimony and intend only the civil one, nevertheless assistance from a grave cause is licit. For to assist as an authorizable witness at an act evil in its own nature is not evil; otherwise neither could the parish priest assist at the matrimony of those who contract sacrilegiously.¹

Causes which can render the cooperation of a magistrate licit do not indeed avail for witnesses; yet sometimes there will be other causes which also make honorable the cooperation of witnesses, such as fear of grave offense of relatives, hope of afterward bringing those civilly joined to celebrate matrimony in the face of the Church, and similar things, especially in great cities, where civil marriages are done more often and move minds little.²

c. There is greater difficulty if a spouse joined in valid matrimony, having obtained a sentence of civil divorce while the partner is still living, attempts to enter civil matrimony. But the assistance of the syndic does not seem to be intrinsically evil even in this case, and therefore it seems to be licit from a most grave cause, especially one of avoiding harm.³

Authors who say that assistance in this case is intrinsically evil argue thus: alpha. an injury is done to the matrimony already existing; beta. the effects of true matrimony are attributed to those about to marry who are not capable of them; gamma. several responses of the Roman congregations declare this assistance altogether illicit.⁴

For the other opinion these things can be adduced: alpha. That injury is inflicted on the prior matrimony only demonstrates that the sin of those contracting civilly in this case is greater, and therefore that a graver cause is required for making honorable the cooperation of the syndic. beta. The formality of civil matrimony is in itself indifferent, provided the syndic declares that it has no value before the Church and in conscience; for the syndic does not attribute civil effects to those about to marry, but performs the formality, upon which having been posited the law considers those about to marry as legitimate spouses and asserts for them the civil rights of true matrimony. gamma. The responses of the congregations do not seem to declare assistance intrinsically evil, but altogether illicit in those particular cases, either because of the scandal of the faithful or because of the defect of a cause making the cooperation honorable.⁵

¹ Cf. Gasparri II, n. 1230, who, pressing the footsteps of St. Alphonsus, defends this opinion.

² Genicot II, 508.

³ Cf. Gasparri II, 1231; Genicot II, n. 562; Lehmkuhl II, n. 725, (n. 952) note.

⁴ Ballerini-Palmieri VI, n. 530 s.

⁵ Cf. Schnitzer, p. 78 ff.; Gennari, Consultazione etc. (Rome, Monitore eccles. 1902) I, cons. 41.