Article Four. On the Power of the Church Over Matrimony.

513. On the Power Itself. Since the few laws which exist from natural and divine law concerning matrimony do not suffice for ordering this contract, equally frequent and entangled with difficulties, it is asked whether God has entrusted the power of making laws concerning matrimony to ecclesiastical or civil authority. But to the Church and to it alone, not by concession of civil authority but by its own right, belongs power over the marriages of the faithful.¹ And indeed, to the Church and to it alone there has been committed by God the power of administering the sacraments and therefore of determining what is required for validly and licitly conferring and receiving the sacraments; but the matrimonial contract is a sacrament; therefore it pertains to the Church alone to determine what is required for validly and licitly entering the matrimonial contract. From this general canon it is inferred in species that the Church alone has power:

a. of positively prescribing conditions (rite, solemnities), which are required for the valid and licit celebration of matrimony;

b. of establishing diriment impediments;

c. of establishing prohibiting impediments;

d. of adjudicating matrimonial causes, and indeed:

concerning the value and nullity of matrimony, whether to be contracted or already contracted;

concerning the dissolution of matrimony;

concerning the separation of spouses from bed and table; for there is question of judging an obligation which immediately arises from matrimony itself;

concerning the legitimacy of offspring; for there is question of an effect which immediately results from valid matrimony.

Note. a. Concerning this matter a threefold error must be noted.

The error of Protestants, who deny that matrimony is a sacrament, and accordingly adjudge the power of ordering matrimony, as a simple contract, to civil authority.

The error of those Catholics who concede that matrimony is a sacrament, but in it really distinguish contract from sacrament and contend that the contract is subject to civil power alone, but the sacrament to ecclesiastical power. But if the Church in fact for centuries, by establishing diriment impediments, has exercised power over the matrimonial contract, they say this arose from usurpation and tacit concession of rulers.

The error of those Catholics who indeed do not really distinguish between contract and sacrament, but nevertheless attribute the power of establishing diriment impediments both to the Church and also, with the Church consenting, to the civil power. But if in fact the Church alone establishes diriment impediments, this was done, they say, because the Church reserved this power to itself.

b. Against these errors the certain doctrine of the Church must be urged. In matrimony the aspect of sacrament cannot be separated from the aspect of contract. Therefore the power of ordering matrimony, by making laws concerning it, belongs to the Church alone.

This power of the Church does not belong to it from concession of rulers, nor from a positive law by which the Church reserved this power to itself, but from divine law immediately granted to it by Christ the Lord.

Article Five.. On the Power of Civil Authority Over Matrimony.

The power of civil authority must be considered in relation to the matrimony of the faithful and in relation to the matrimony of infidels. Moreover the supreme ruler whose power over matrimony is to be examined can himself be faithful or infidel.

¹ Cn. 1016.

514. Over the Marriages of the Faithful. 1. Civil power has no right with respect to the marriages of the faithful, and consequently it can establish neither diriment nor prohibiting impediments, nor decree anything concerning the essential effects of matrimony; therefore it cannot effect that marriages of the faithful are per se either invalid or illicit. Reason dictates this, and the declaration of the Church confirms it.¹

But if civil power nevertheless establishes something concerning matrimony which is not evil in itself, the faithful not only can licitly comply with it, but it must also be enjoined upon them to observe the conditions which civil power prescribes for valid or licit matrimony; not because those conditions directly oblige in conscience, but lest the marriages of the faithful lack civil effects to the detriment of themselves and their children. Therefore indirectly, from charity toward themselves and their children, they are held to observe those laws.

2. Although civil authority cannot exercise influence over the essential effects of matrimony, nevertheless it can rule the civil effects of matrimony by its own power.² The reason for the first: he who judges concerning the matrimony itself and its value must also judge concerning those things which necessarily follow from it. The reason for the second: since matrimony is a social contract, it also produces civil rights and obligations, which are commonly called civil effects; now civil power, and it alone, makes laws concerning these effects, that is, can determine them and for a just cause deny them to certain marriages.

a. Some effects of matrimony are essential, others civil. Essential effects are: the obligation of cohabiting, paternal power over children, and the legitimacy of offspring. These effects are called essential because they necessarily follow from the matrimonial contract itself. The civil effects of matrimony, which by proper right pertain to political power, are: the contract of the spouses concerning temporal goods; the right of wife and children to participate in the goods, dignities, and titles of the husband or father; the right of succeeding as legitimate heir to the goods of the deceased; the amount of dowry, the amount of the legitimate portion, etc.

b. Political laws by which the civil effects of matrimony are ruled oblige in conscience; for they are laws made by competent authority for the common good; therefore nothing is lacking to them by which they would fail to oblige in conscience.

c. Which marriages are valid and which invalid, political power must learn from the Church; now to marriages which are held valid by the Church, it is held per se to grant civil effects, and to those which are held invalid by the Church, it is held per se to deny them. But if a matrimony which is valid in the face of the Church were truly contrary to the common good, political power cannot deny civil effects to such matrimony, but it must be left to the Church itself to meet the difficulty.

¹ Cn. 1016. Cf. Pesch VII, n. 881.

² Cn. 1016.

515. Over the Marriages of Infidels.¹

a. The practical importance of this question increases day by day; for not only do Catholic missionaries continually enter new regions of infidels and lead their inhabitants to the Christian faith, but the lands of infidels are from time to time also subjected to the power of Christian rulers; indeed among the faithful themselves the number of those who do not even care to have their children baptized grows day by day; these therefore live in the manner of infidels.

b. There is controversy whether the marriages of infidels are subject to civil power. The older theologians indeed, Sanchez, Pirhing, Schmalzgrueber, Suarez, etc., defended the affirmative opinion as true and certain. Afterward, however, especially in the past century, several theologians, Perrone, Taparelli, Liberatore, Zigliara, etc., attacked this doctrine, denying to civil authority the power of making laws concerning the matrimonial contract of infidels. Today nevertheless the affirmative opinion has again become common among theologians; D'Annibale, Ballerini, Gasparri, Lehmkuhl, Rosset, De Becker, Leitner, Wernz, and others uphold it. Yet not all explain it in the same way; for some think that civil authority by its own right can make laws concerning the marriages of its infidel subjects, since matrimony is a natural contract; others, on the contrary, teach that civil authority indeed by its own right rules the marriages of infidels, but not by force of merely civil power, since matrimony is a sacred thing, but by force of religious power, which in an infidel ruler is connected with that power. For in a society in which there is no religious authority distinct from civil authority, it belongs to the civil power to order sacred things, not as it is civil, but as it is at the same time religious. Finally, others think that civil authority can order the marriages of infidels not by its own right, but by a right devolved per accidens; for since in society there must be a power which can order the matrimonial contract, but the religious authority to which that power properly belongs does not exist in an infidel ruler, that power is devolved per accidens and by reason of necessity to the authority which alone legitimately presides there, namely to civil authority.

Assertion. Civil power has the right of ruling marriages of infidels among themselves; therefore it can establish diriment and prohibiting impediments, provided they are not opposed to natural law, and it can also adjudicate their matrimonial causes.

The arguments for this opinion are these.

1. The matrimony of infidels is a natural contract; but every natural contract, besides the norms of natural and divine law, is ruled by the laws of civil power; therefore the matrimony of infidels is ruled by the laws of civil power, whether by its own right or by a transferred right, just as also an oath and sacrifice in societies of this kind are ruled by civil authority.

2. Besides the norms of natural and divine law, matrimony requires several positive laws; for innumerable inconveniences would follow if the marriages of infidels were ruled by the laws of natural and divine law alone; therefore there must be an authority which makes laws concerning the marriages of infidels; but besides civil authority there is no other which can make laws of this kind.

3. Although the Church has not explicitly manifested its mind concerning this question, nevertheless it favors this opinion; for from the declarations of the sacred congregations it is gathered that it holds as invalid the marriages of infidels to which a diriment impediment established by civil power stands opposed.² Hence it is that missionaries also in places of infidels judge the marriages of those who are converted to the faith according to this opinion.³

Question Two.. On the Properties of Matrimony.

There are two principal properties of matrimony which arise from its nature: the unity and the indissolubility of matrimony.⁴

¹ Cf. Resemans, De competentia civili in vinculum coniugale infidelium (Rome: Desclee, 1887). Leitner, p. 26 ff.

² S. C. de Propaganda Fide, June 26, 1820.

³ Gasparri I, n. 284. Wernz IV, n. 75 ff.

⁴ Cn. 1013, 2.