Article One. On the Nature and Properties of Consent.

625. Matrimonial consent is an act of the will by which a man and a woman, capable by law, mutually hand over to and accept from each other the perpetual and exclusive right over the body in order to the conjugal act.

a. As all other contracts, so also matrimony can be considered in fieri, or as it is an act of the will inducing the conjugal state, and in facto esse, as it is the conjugal state produced by that very act, and it is defined as the legitimate union of man and woman for generating and educating offspring.

b. Persons capable by law are said to be those persons for whom neither from natural law nor from positive law there stands opposed an impediment by which their matrimony is rendered invalid or illicit, and therefore persons who can validly and licitly enter matrimony.

c. Right over the body: by these words is signified the object of the matrimonial contract, which St. Paul suggests by these words: the woman does not have power over her own body, but the man; and likewise the man does not have power over his own body, but the woman.¹ This mutual right and, what coheres with it, mutual office, is signified if the object of the matrimonial contract is said to be: an indivisible fellowship of life, which essentially consists in that very right and office; integrally it also contains common bed and cohabitation.

d. Therefore the essential object of the matrimonial contract is the right and power over the body, but only insofar as it is of itself apt for the conjugal act, or for generating offspring. Namely, there must be distinguished the right and power over the body of the spouse insofar as it is apt for the act of generation, which is the right of using the body for the conjugal act, and the use or exercise of the right through the conjugal act itself. Now the first pertains to the essential object of the matrimonial contract; the other, however, is not required for its essence, and therefore, the essence of matrimony being saved, can be excluded from the object of the matrimonial contract.

e. Since each spouse hands over to the other the right over his or her own body in relation to generation, not only against chastity but also against justice does one sin who, after matrimony has been entered, either himself abuses his body or grants the use of his body to another outsider.

¹ 1 Cor. 7, 4.

626. Its Necessity and Sufficiency. 1. Matrimonial consent is plainly necessary and essential for entering matrimony, so that it can never be supplied by any human power.¹

2. Matrimonial consent is sufficient for constituting matrimony; carnal copula is not required for this: for matrimony essentially consists rather in the union of souls than in the mingling of bodies.

There are those who affirm that mutual consent does not suffice for entering true matrimony unless carnal copula is added, since copula performed with marital affection constitutes true and properly so-called matrimony. For they think that matrimony is not a consensual contract, which is perfected by mutual consent, but a real one, which is perfected by mutual handing over of bodies through carnal copula. But this theory (copula theory) does not agree with the doctrine of the Catholic Church.

By the very fact that two persons capable by law have legitimately manifested their consent to entering matrimony, matrimony is contracted. Thus the new Code has it: matrimony is made by the consent of the parties, legitimately manifested between persons capable by law.²

a. If, besides internal consent, carnal copula were essentially required for entering matrimony, it would have the character of an external sign by which consent would be externally manifested both to the other contracting party and to the community (the Church). But such a sign is known to be necessary neither for the other party nor for the community. Not for the other party, since matrimonial consent is sufficiently manifested by words or other signs without carnal copula; not for the community, because for proving the contract the Church admits witnesses.

¹ Cn. 1081, 1.

² Cn. 1081, 2.

627. Properties. Since matrimonial consent is essentially a bilateral onerous contract, it must have the same qualities which are generally required for contracts of this sort. It must be a. true, b. deliberate, c. mutual, d. manifested by a sensible sign, e. entered between capable persons. If even one of these is lacking, the matrimony is null.

1. True, or internal (not merely external or fictitious), by which spouses wish mutually to hand over and accept power over the body in order to the generation of offspring. But implicit consent suffices, provided nothing of those things is excluded which pertain to the essence of the matrimonial contract.

a. One who contracts fictitiously, that is, externally utters words expressing consent, but without the intention of contracting or of handing over the right to the conjugal act, contracts invalidly: for when consent is lacking, even on the part of only one party, there is no contract.¹

b. If someone says that he or she consented fictitiously: in the external forum no faith is given to that person unless he proves it; for internal consent of mind is always presumed conformable to the words and signs used in celebrating matrimony.² In the internal forum that person is held to abstain from seeking and rendering the debt until he or she consents, and ordinarily is also held to place true consent so that the injury inflicted on the other party may be repaired. The party who placed true consent is not held to believe the other who asserts that he or she consented fictitiously, even if that party confirms it by oath; therefore he or she would licitly seek the debt until the defect of consent is established.

¹ Cn. 1086, 2.

² Cn. 1086, 1.

628. 2. Deliberate, that is, placed with full advertence of mind and perfect consent of the will, because the matrimonial contract induces a grave obligation. But no one is judged voluntarily to take on a grave obligation unless he fully and perfectly consents.

a. Therefore those who either habitually or actually, that is, at the time at which they enter matrimony, are not capable of perfectly human acts, cannot validly contract:

Infants, the perpetually insane, and the habitually demented, who, although they have some use of reason, nevertheless do not use that deliberation which is required for mortal sin. If, however, they have lucid intervals in which they are capable of perfectly human acts, they can validly contract at that time.

The drunk, the half-asleep, the hypnotized, etc., who by reason of drunkenness, sleep, etc., lack perfect use of reason; nevertheless, those who suffer from some monomania can validly enter matrimony, provided the use of reason is not disturbed concerning matrimony.

b. Those who indeed know that matrimony is a permanent society between man and woman instituted for having children, but are ignorant of how children are procreated, contract validly, because they implicitly consent to true matrimony: for they will a society instituted for having children; therefore they also will the means or act necessary for this.¹

¹ Cf. Cn. 1082, 1.

629. 3. Mutual, that is, placed by each party: for the matrimonial contract is a bilateral onerous contract which imposes obligation on each side; but it cannot induce obligation on each side unless each wills it: for no one can be obligated by a contract unless he himself wills.

a. The mutual consent of the contracting parties must be simultaneous, but it is not required that it be physically simultaneous, that is, that it be elicited by each at the same time. It suffices that it be morally simultaneous, that is, that the consent of one still persists when the other manifests his or her consent: for the nature of a contract and the nature of a sacrament do not require a greater simultaneity and union than this moral one. Not the nature of a contract: for if the consent of one, once elicited, has not been revoked and therefore morally endures, the consent of the other can join itself to it, and therefore constitute mutual consent. Not the nature of a sacrament, because it suffices that matter and form coexist together with that simultaneity which the nature of the sacrament requires; but the nature of this sacrament, since it consists in a contract, does not require any other simultaneity except moral simultaneity.

b. To the question how much time can intervene between the consent of one and of the other so that they are still judged morally simultaneous, there is not one response of authors. For some judge that any interval of time whatever can intervene; others seven years; others three years; and others finally one year, without moral simultaneity of the consents being impeded, provided the prior consent has not been revoked nor elicited only for a determinate time. Two things seem certain in this matter: that consent is judged tacitly revoked by the lapse of a long time unless it virtually endures in some external effect; and that how long consent once elicited endures must be determined not absolutely but relatively, namely with account taken of the particular circumstances which effect that consent perseveres now longer, now more briefly.¹

¹ Cf. Sanchez, l. 2, disp. 32, n. 6.

630. 4. Legitimately manifested: for entering valid matrimony, both by reason of the contract and chiefly by reason of the sacrament (which essentially consists in a sensible sign), internal consent does not suffice, but external consent, manifested by a sensible sign, is required.

No determinate sign is required by natural law, but by ecclesiastical law it is prescribed that consent be expressed by words.¹ But those who cannot speak may use equivalent signs: handing over of a ring, extension of the hand, inclination of the head, etc.

If either of the contracting parties uses an unknown language, consent can validly and licitly be manifested through an interpreter.² But it is required a. that a just cause be present; b. that it not be licit to doubt the fidelity of the interpreter; and c. if time allows, that the license of the ordinary be had.

¹ Cn. 1088, 2.

² Cn. 1090.

631. 5. Persons capable by law of contracting validly and licitly are a man and a woman bound by no diriment or impedient impediment. There was indeed discussion of impediments above; here only it is asked whether matrimony is valid if by the contracting parties a. a diriment impediment is unknown, b. doubted, c. falsely thought to be present.

1. If an impediment is present in reality, although unknown by one or by each contracting party, the matrimony is null, whatever the ignorance may be, whether of law or of fact: for ignorance indeed excuses from sin against a prohibiting law, but cannot effect that an act be valid against an invalidating law.

2. If in reality no impediment is present, but nevertheless one or each contracting party doubts or suspects that perhaps some impediment exists between them, the matrimony is valid: for these are judged to give consent under a condition concerning the present: if I am capable; but since the condition is verified, the consent becomes absolute and valid.

3. If one or each contracting party certainly persuades himself or herself that a diriment impediment is present, although nevertheless none exists between them, the matrimony can be valid: "knowledge or opinion of the nullity of matrimony does not necessarily exclude matrimonial consent."¹ From these words it seems to be supposed that the contracting parties consent as much as they can, or wish to contract if it is possible; in reality, however, it is possible.

In practice the contracting parties must be diligently examined concerning the intention with which they entered the matrimonial contract.

¹ Cn. 1085.

632. 6. Matrimony is an indivisible contract (unteilbar). Since matrimony by its nature is a contract, and a bilateral one, what is established concerning other contracts of this sort has force concerning it: it is indivisible, that is, valid or invalid for each party, so that it cannot limp, or be valid for only one party.

If therefore invalid consent is manifested on the part of one party, or if one party is incapable of contracting, or entangled by a diriment impediment, the matrimony is invalid for each party: for from the nature of the indivisibility of the contract, the incapable party, so to speak, communicates incapacity to the other party, but the capable party by no means can communicate capability to the incapable party. But if it happens that the capable party communicates capability to the other party, this is not done from the indivisibility of the contract, but from the disposition of positive law. The disposition of law hitherto in force, by force of which one of the betrothed exempt from the Tridentine form communicated his or her exemption to the other, was removed by the decree Ne temere, so that now the party who is held to the prescribed form draws to himself or herself the party who is not held to the form.¹

¹ Boeckenhoff, De individuitate matrimonii (Berlin: Germania, 1901).

633. Presence of the Contracting Parties. For validly entering matrimony it is necessary that the contracting parties be present either themselves in person or through a proxy.¹ As other contracts, so also matrimony entered through a proxy has force, whether one or each contracts through a proxy, provided the required conditions are present.² For although for valid matrimony the proper and personal consent of the contracting parties themselves is required, nevertheless they can manifest this consent also through another. But this can be done licitly only from a just cause, if the authenticity of the mandate is established and, if time permits, license of the ordinary is present.³

Four conditions are required in order that matrimony can be validly entered through a proxy:

a. That the proxy has received a special mandate for contracting with a determinate person, which must be signed by the mandating person and either by the parish priest or ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses. If the mandating person does not know how to write, this must be noted in the mandate itself and another witness added, who also signs the writing himself; otherwise the mandate is invalid.

b. That the mandating person has not revoked the mandate before the matrimony was contracted, and has not fallen into insanity. In this case the matrimony is invalid, although either the proxy or the other contracting party was ignorant of these things.

c. That the proxy perform his office by himself.

d. That diocesan statutes be observed, if any moreover exist concerning this matter.

¹ Cn. 1088.

² Cn. 1089.

³ Cn. 1091.