Article I. On Civil Matrimony

885. Notion. Civil matrimony is a marital contract (even of Christians) entered before a civil magistrate.

It is called a marital contract, that is, one regarding all marital rights and not merely agreements concerning civil effects and the administration of goods. Accordingly, civil matrimony strictly so called is not present if the betrothed have the sole intention of declaring to the civil magistrate their marital union already effected or soon to be effected, thereby assuming merely civil burdens and rights for themselves and their future offspring.³²⁶

Division. Civil matrimony introduced by modern governments is customarily divided in three ways:

1. Necessary or obligatory civil matrimony,³²⁷ which is prescribed by the civil government under grave penalties for all persons about to marry. Civil matrimony of this obligatory kind exists today in several regions, for example, in Germany, France, Holland, Hungary, Belgium, Switzerland, and Italy. The civil government takes no account of ecclesiastical matrimony or of impediments established by the Church, but judges the entire matrimonial contract in its tribunal according only to the civil laws in force.

2. Facultative civil matrimony,³²⁸ which is had if all persons about to marry, even Christians, are permitted the choice of celebrating matrimony either before the parish priest or a minister of worship legitimately authorized by the civil and ecclesiastical authority, or before the civil magistrate alone, only the civil laws being observed. Civil matrimony of this facultative kind is in force in England, North America, and other states.

3. Subsidiary civil matrimony,³²⁹ which is accepted as valid by the civil government when persons about to marry either cannot or will not contract matrimony in the face of the Church. Civil matrimony of this subsidiary kind is now in force in Spain and Poland,³³⁰ and takes the place of ecclesiastical matrimony. Such matrimony is contracted: a) by non-baptized persons, who are not subject to ecclesiastical jurisdiction; b) by heretics who do not acknowledge the jurisdiction of the Catholic Church; c) by Catholics who wish to contract matrimony although a diriment impediment stands in the way.

Not much need be said concerning the history of civil matrimony. Before the so-called "Reformation" of the sixteenth century, civil matrimony was entirely unknown. It seems to have been introduced for the first time in Holland and Friesland on April 1, 1580. In England, a law concerning civil matrimony was promulgated on August 24, 1653. In France, necessary civil matrimony was prescribed for all citizens of France on September 20, 1792. At the present time civil matrimony is in force in some manner in almost all regions, as is evident from the things said above.

³²⁶ Wernz-Vidal, Ius can. V, n. 583.

³²⁷ "Obligatory or compulsory civil matrimony" (Die obligatorische oder Zwangszivilehe).

³²⁸ "Facultative or elective civil matrimony" (Die fakultative oder Wahlzivilehe).

³²⁹ "Emergency civil matrimony or substitute civil matrimony" (Notzivilehe oder Ersatzzivilehe).

³³⁰ Subsidiary civil matrimony for Protestants also exists in a few other lands. In Russia, Denmark, and Sweden a species of subsidiary civil matrimony is granted.

886. Principle 1. Civil matrimony in the sense explained above cannot be acknowledged by the Church as a true matrimony between Christians; accordingly, it is neither a sacrament nor does it produce any canonical effects.

The discussion concerns only the matrimony of Christians. For non-baptized unbelievers are not subject to the jurisdiction of the Church; and accordingly, since their marriages must nevertheless be governed by some visible authority, the opinion of many is that, by the law of devolution, the civil power can govern the marriages of unbelievers, provided that nothing contrary to natural and divine law is established.³³¹ Therefore, unbelievers can validly and licitly contract a civil matrimony which is not opposed to natural and divine law.³³² But the Church has always condemned the civil matrimony of Christians; hence proposition 73 was proscribed in the Syllabus of Pius IX: "By virtue of a merely civil contract there can exist between Christians a matrimony properly so called."³³³

There are several reasons why the Church has always condemned civil matrimony, of which the principal ones are: 1. through civil matrimony the right of the Church is injured, for she alone has power over the marriages of Christians, inasmuch as they are sacraments; 2. civil matrimony renders matrimony a truly profane affair and a merely profane contract, as Luther taught in express words;³³⁴ 3. it fosters indifferentism among Christians because mixed or other illicit marriages are thereby often concluded; 4. it fosters divorces, for civil marriages are dissolved as easily as they are contracted; hence, where civil matrimony has been introduced, there civil divorce from the matrimonial bond is also in force, with a few regions excepted;³³⁵ 5. Christians are compelled to perform an action which they acknowledge either as something evil or as something not at all obligatory in conscience.

³³¹ Cf. above, n. 651.

³³² Cf. Gasparri, De matrim., n. 1221.

³³³ Denz., n. 1773.

³³⁴ "Because wedding and the married state are a worldly affair, it does not belong to us clergy and ministers of the Church to regulate it." Traubüchlein, cited in Leitner, Lehrb. d. kirchl. Eherechtes, 81.

³³⁵ Cf. below, n. 890.

887. Principle 2. Christians about to marry can licitly, and indeed must for a reasonable cause, observe the statutes of civil law concerning the celebration of matrimony, provided that the intention of receiving the sacrament of matrimony itself before the civil magistrate is excluded.³³⁶

All teach thus. Leo XIII himself says in the celebrated Encyclical Arcanum: "It is of the greatest concern to the spouses to have all these things well known; they ought also to have them approved and impressed upon their minds, so that it may be permissible for them in this matter to conform to the laws, the Church herself not refusing, since she wills and desires that the effects of marriages be secure in every respect and that no harm be brought upon the children."

Therefore, Christians about to marry must intend nothing before the civil magistrate other than merely civil effects for themselves and their offspring,³³⁷ nor can they therefore be accused of having committed fraud or falsehood, since the civil laws intend nothing beyond civil effects in civil matrimony. In regions where civil law requires that civil matrimony be contracted before ecclesiastical matrimony, this is indeed licit; but every diligence must be used so that matrimony before the Church may be contracted as soon as possible and, in the meantime, the contracting parties may remain separated.³³⁸ Therefore, persons about to marry should not enter civil matrimony before all things have been prepared so that matrimony before the Church can certainly be celebrated as soon as possible. For several examples are not lacking in which, after civil matrimony had been contracted, one or the other of the betrothed refused to contract before the Church.

Note. Parish priests must know thoroughly the statutes of the civil law of their country so that they may be able rightly to instruct the faithful with what intention and in what mind those statutes can and ought to be observed. Likewise, this knowledge is necessary lest great harms arise to the parish priest himself and to the Catholic religion from the transgression of these statutes.

³³⁶ Code of Canon Law, can. 1003, § 3.

³³⁷ Benedict XIV, Brief Redditae sunt nobis, September 17, 1746.

³³⁸ Sacred Penitentiary, January 15, 1866.

888. Effects and penalties of civil matrimony. Civil matrimony as such is considered a foul concubinage for Christians and therefore induces all the penalties inflicted upon concubinage. Hence: 1. the impediment of public propriety arises;³³⁹ 2. civil matrimony contracted and consummated after the civil divorce of another legitimate matrimony induces the impediment of crime³⁴⁰ and infamy of law because of bigamy;³⁴¹ 3. if any offspring is born from a union of this kind, it, as born from a wife who is not legitimate, is illegitimate in the eyes of God and the Church;³⁴² 4. persons living in an invalid civil matrimony are regarded as public sinners, for they are concubinaries,³⁴³ and accordingly cannot be admitted either to receive the sacraments, to ecclesiastical burial, or to legitimate acts;³⁴⁴ 5. clerics constituted in sacred orders or regulars of either sex after solemn vows who presume to contract civil matrimony, as well as all who presume to enter matrimony with the aforesaid persons, incur excommunication simply reserved to the Apostolic See and other penalties. This excommunication, however, is reserved to the Ordinaries if it is a question of the civil matrimony of a simply professed religious.³⁴⁵

Although civil matrimony as such is concubinage, nevertheless, insofar as it is contracted with true marital consent and without other diriment impediments, it is valid under those conditions in which clandestine marriages are valid. Hence, for example, civil marriages contracted between non-Catholics who have true marital consent and are bound by no other diriment impediment are valid. The same was true of mixed civil marriages contracted in Germany and Hungary before May 18, 1918.

In practice a great difficulty arises in determining whether marital consent was truly present in the celebration of a civil matrimony. A distinction must be made. Ordinarily, the presumption stands for insufficient consent, and consequently for the invalidity of the civil matrimony, if it was contracted by a true Catholic who fulfills the duties of religion;³⁴⁶ contrariwise, the presumption stands for the validity of the consent and of the civil matrimony if it was entered by an indifferent Catholic or a heretic who explicitly neglects the celebration of matrimony in the face of the Church. Therefore, in each case the absence of sufficient marital consent must be proved.

³³⁹ Cf. above, n. 845.

³⁴⁰ Cf. above, n. 825.

³⁴¹ Can. 2356.

³⁴² Benedict XIV, loc. cit., § 3.

³⁴³ The Sacred Penitentiary said on January 18, 1866: "He would be a true concubinary who should presume to persist in matrimony by the force of the civil act alone."

³⁴⁴ Code of Canon Law, can. 2357, § 2.

³⁴⁵ Ibid., can. 2388; can. 188; can. 646; can. 985.

³⁴⁶ The Sacred Roman Rota declared on February 23, 1912 the nullity of a certain mixed civil matrimony contracted in Germany because true consent was lacking (Acta Apost. Sed. IV, 392). The same in the Argentine case, November 18, 1918 (Acta Apost. Sed. XI, 358).

889. You ask: Is it permissible to assist at a civil matrimony as an official of the magistracy or as a witness?

The answer is:

1. If the persons about to marry themselves, as well as the official of the magistracy and the witnesses at the civil matrimony, intend nothing other than a merely civil act with merely civil effects, certainly no one sins. Thus teach all. But if the persons about to marry, with an evil will, contract civil matrimony intending in that act a true and valid matrimony, the persons about to marry themselves certainly sin gravely; nevertheless, for a grave cause the civil magistrate can assist at this evil act as a minister of the government. The reason is that such assistance is nothing but material cooperation in the sin of another, which can be rendered for a grave and proportionate cause. Thus also a parish priest can for a grave cause assist at the gravely illicit matrimony of a public sinner; thus it is permissible for a grave cause to rent a room to a prostitute prepared to commit many sins in that room.³⁴⁷

2. The difficulty is greater if the civil magistrate knows for certain that the persons about to marry are entering a matrimony entirely invalid, for example, because of a civil divorce previously obtained or because of other diriment impediments. Even in this case the civil magistrate can, for a most grave cause, assist at the civil matrimony, unless, however, this has been expressly prohibited for some region by ecclesiastical authority. Modern authors commonly teach thus, for example, Gasparri,³⁴⁸ Génicot,³⁴⁹ Lehmkuhl,³⁵⁰ Noldin,³⁵¹ De Smet,³⁵² Gennari,³⁵³ Wernz-Vidal,³⁵⁴ etc. The reason is that such assistance is indeed proximate cooperation in the sin of another, but it does not seem to be something intrinsically evil. For civil matrimony is customarily considered by modern governments, at least Catholic governments, as a juridical formality instituted chiefly to prevent greater evils.

Now, because of hatred of religion, atheism, or other causes, many persons about to marry today refuse to enter matrimony before the Church; on the other hand, because of the so-called "freedom of worship" everywhere in force, alas, the government cannot compel persons about to marry to present themselves in the face of the Church; nor is it morally possible to establish one set of laws for good Catholics and another for irreligious persons. Therefore, in order to avoid those pernicious free unions between persons of different sex, governments are almost compelled to establish some juridical formality which all inhabitants, whether baptized or non-baptized, who wish to contract matrimony must observe absolutely. After this formality has been completed, they are regarded by the government as spouses having the rights and burdens of true spouses.

Therefore, if otherwise great harm would arise to himself or to religion, the civil magistrate can assist at this formality as an authorized witness without implicitly intending or concerning himself with the moral effects following from the formality of civil matrimony. This assistance seems to have some likeness to the action of a servant who places his shoulder beneath, or carries a ladder for, a master ascending to commit fornication. Now St. Alphonsus³⁵⁵ does not hold this action of the servant to be intrinsically evil. Why should the same not be said of the assistance of a magistrate who cooperates less proximately in fornication than does a servant submitting his shoulders to his ascending master?

That this assistance is not in reality an intrinsically evil act seems sufficiently clear. For that act is not intrinsically evil which is not always evil but sometimes good or indifferent. But the assistance of a mayor at civil matrimony is not always an evil act, for example, when he offers his assistance to persons about to marry who will nothing illicit. Therefore, this assistance is not something intrinsically evil but licit when a sufficient cause is present.

A sufficient cause seems to be present if otherwise the mayor would have to resign his office with great harm to himself or even to the Catholic religion. For it would be a truly great harm to the Catholic religion if no good Catholic could now discharge the office of civil magistrate.

I said above, however, that this assistance is not licit if it has been prohibited by ecclesiastical authority for some region. For it belongs to ecclesiastical authority to judge whether in some region there truly are sufficient causes to render honorable so grave a cooperation in the sins of others. In particular cases the Sacred Congregations have several times responded that such assistance is not licit.³⁵⁶ De Smet,³⁵⁷ however, prudently warns: "If there are some who think the action of the mayor intrinsically evil, let them hold this as a norm: that they leave the aforesaid magistrates in good faith, but direct those who inquire to the Ordinary."

³⁴⁷ Cf. above, I, n. 622, on cooperation.

³⁴⁸ De matrim., n. 1231.

³⁴⁹ Theol. mor. II, 562, under 4.

³⁵⁰ Theol. mor. II, n. 952, note.

³⁵¹ De sacr., n. 681.

³⁵² De sponsal. et matrim., n. 406.

³⁵³ Consultazioni mor. (1902), consultation 41.

³⁵⁴ Ius can. V, n. 591.

³⁵⁵ Theol. mor., bk. 2, n. 66.

³⁵⁶ See the responses of the Holy Office and the Sacred Penitentiary in Gasparri, loc. cit., n. 1229 ff., and in Denz., n. 1865.

³⁵⁷ Loc. cit., n. 406.