Article II. On The Intrinsic Nature Of The Matrimonial Contract

630. Since every good definition ought adequately to describe the essence of the thing defined, after the definition of matrimony has been explained, the question is proposed by authors: what properly is the formal constitutive of matrimony, or what primarily and fundamentally constitutes the essence of matrimony. Two theories have been devised to resolve this question, namely, the copular theory and the consensual theory. The former teaches that the essence of matrimony consists in the union of bodies, that is, in carnal intercourse itself, so that matrimony is not a true and perfect matrimony before carnal intercourse has been performed. Thus teach Julian, the disciple of Pelagius, Hincmar of Reims, Gratian, John Wycliffe, several Protestants, John of Faenza, and perhaps certain other ancient Catholics cited by Freisen,⁴⁸ who himself also defended this theory, but afterward (in 1892) retracted it, at least in some manner. The second theory asserts that the essence of matrimony consists in the union of wills, that is, in the consent of the contracting parties, and consequently that a true and perfect matrimony exists even if carnal intercourse is not had between the spouses. Almost all Catholics now teach thus. To elucidate this matter we posit three propositions:

⁴⁸ Ibid., p. 151 ff. Already in the time of Alexander III (1159-1181), matrimony was held to be "true and indissoluble" before carnal intercourse had been performed, "although," says the Pope, "others think otherwise, and it also was at times judged otherwise by certain of Our predecessors" (c. 3, X 4, 4). The school of Bologna especially appears to have stood for the copular theory.

631. Proposition 1. Carnal intercourse itself is not required for the essence of matrimony.

Proof a) From two biblical examples. There was a true matrimony both between Adam and Eve while still living in paradise, and between the Blessed Virgin Mary and St. Joseph. But in neither case did carnal intercourse intervene. Therefore carnal intercourse does not pertain to the essence of a true and perfect matrimony. Most commonly all theologians teach that matrimony was instituted in paradise. Now it is certain that matrimony was not consummated in paradise, because offspring generated in paradise before sin would not have had original sin. But such offspring without original sin never existed. Almost all authors, both ancient and modern, teach that a true matrimony existed between the Blessed Virgin and St. Joseph.⁴⁹ Freisen himself admits this. For in the Gospel it is said by the angel to Joseph: "Do not fear to take Mary your wife."⁵⁰ But it is certain by faith that Mary was a virgin both before and after childbirth.⁵¹ Therefore carnal intercourse is not required for the essence of matrimony.

Proof b) From the Holy Fathers. St. Ambrose⁵² says: "It is not the defloration of virginity that makes marriage, but the conjugal compact"; and St. John Chrysostom⁵³ teaches: "Intercourse does not make marriage, but the will." St. Thomas⁵⁴ responds to the question whether the consent which makes marriage is consent to carnal intercourse: "Those spoke well who said that to consent to marriage is consent to carnal intercourse implicitly, not explicitly." This, Sylvius says,⁵⁵ is consequently not to be understood as though there were at least a virtual purpose of carnal intercourse, but because it is consent to that power in which such intercourse is contained implicitly, as act in potency. Blessed Albert the Great especially attacks the copular theory vehemently and teaches simply: "It must be said that matrimony is perfected by consent."⁵⁶

Proof c) From the Roman Catechism, p. II, c. 8, where § 8 is entitled: "Intercourse is not required for a true matrimony."

Proof d) From the Code of Canon Law, which says absolutely in c. 1081: "The consent of the parties, legitimately manifested between persons capable by law, makes matrimony." Nothing, therefore, is said concerning the necessity of marital intercourse.

You will object 1. Christian matrimony signifies the real union of Christ with the Church. But this union is not signified except through the carnal union of the spouses. Therefore carnal union pertains to the essence of matrimony.

I respond by distinguishing the major: Christian matrimony signifies the real union of Christ with the Church through love and the influx of graces, which signify a moral union, I concede; it signifies the physical union of Christ with the Church, I deny; and I deny the consequence.

You will object 2. St. Paul, speaking of spouses, says: "They shall be two in one flesh; this is a great sacrament. But I speak in Christ and in the Church."⁵⁷ Therefore carnal union pertains to the essence of matrimony.

I respond: These words, "They shall be two in one flesh," do not necessarily signify carnal union, but the indissoluble bond existing between the spouses; for St. Paul here evidently alludes to the words: "And Adam said: This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken out of man. Wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh."⁵⁸ But from these words nothing can be concluded concerning carnal intercourse. See other objections and their solutions in Billuart.⁵⁹

⁴⁹ Cf. S. theol. 3, q. 29, a. 2.

⁵⁰ Matt. 1:20.

⁵¹ Epistle of Pope Siricius on the perpetual virginity of Mary (Denz., n. 91; cf. ibid., nn. 256, 993).

⁵² It is contained in c. 5, C. 27, q. 2. Similar things are contained in c. 9, C. 27, q. 2, from St. Augustine, De bono coniugali, l. 1, c. 2.

⁵³ c. 1, C. 27, q. 2.

⁵⁴ Suppl., q. 48, a. 1.

⁵⁵ Commentary on this place, namely, Suppl., q. 48, a. 1; cf. also Suppl., q. 44, a. 1.

⁵⁶ In 4, dist. 26, a. 15.

⁵⁷ Eph. 5:31 ff.

⁵⁸ Gen. 2:23 ff.

⁵⁹ De matrimonio, diss. 3, a. 5.

632. Proposition 2. The essence of matrimony in fieri (and consequently also of the sacrament of matrimony) consists in mutual consent externally manifested, or in the matrimonial contract.

That even Christian matrimony is a true and proper bilateral contract, although singular and sui generis, is today, after the Encyclical Arcanum cited above, so certain that the contrary assertion of a few authors is rash.⁶⁰ The reason is that in matrimony all things are found which are necessary for a true contract. A contract is customarily defined: "The agreement and consent of two or more in the same thing."⁶¹ Now in matrimony there is the free consent of two, namely, of those about to marry, in the same thing, namely, in conjugal life. But the qualities of this matrimonial consent will be treated below.

⁶⁰ Cf. Gasparri, De matrimonio, n. 202 ff.

⁶¹ l. 1, § 2, D. De pactis II, 14.

633. The material object of this contract is the persons themselves who contract.

The formal object is the manner of life. Philosophers call the material object the thing about which action is taken; the formal object is that one among the diverse formalities existing in the thing which is principally intended. Thus in one and the same material thing there can be a manifold formal object; for example, one and the same house, considered as the material object, when it is sold, is subject to the formal object of a contract of sale; when it is leased, it is subject to the formal object of a contract of lease. For in the former case ownership is principally intended, but in the latter only the use of the house. In contracting matrimony each spouse must principally⁶² intend (or at least not exclude) a mutual, exclusive, and perpetual right to the body of the other with an order to generation. Therefore such a right is the formal object of the matrimonial contract; and if such a right were excluded, the matrimony would be null and invalid from the beginning. But once matrimony has been contracted and such a right has been truly granted, nothing prevents that right from never being reduced to practice, or even from being perpetually suspended with regard to actual exercise, for example, when the spouses by common consent emit a vow of perpetual continence, or when, after adultery committed by one spouse, the innocent party refuses to render the conjugal debt (concerning which more fully below).

⁶² Nothing prevents the spouses from having other accidental intentions, for example, of preserving the honor or fortune of the family, of having a remedy for concupiscence, etc.

634. Matrimony is a plainly singular and sui generis contract, for:

a) every true and legitimate matrimony is a sacred contract.

Hence even the legitimate matrimony of pagans is called by Leo XIII in the Encyclical Arcanum: "sacred by its own force, its own nature, and of its own accord." The reason is both because the immediate author of matrimony is God, and because matrimony even from the beginning was a certain foreshadowing of the Incarnation. The history of peoples also openly demonstrates that nuptials were always held as something sacred, and therefore were celebrated with religious ceremonies, unless the peoples had fallen into the abyss of immorality. Thus Leo XIII in the often-cited Encyclical Arcanum deservedly says: "Both the monuments of antiquity and the customs and institutions of peoples testify, ... in the minds of all of whom it is evident that it had been formed and anticipated that, when they thought of matrimony, there occurred the form of a thing joined with religion and sanctity. For this reason nuptials among them were often accustomed to be performed not without religious ceremonies, the authority of pontiffs, and the ministry of priests."⁶³ From the sanctity of matrimony it follows that the matrimonial contract cannot, like other human contracts, be clothed with arbitrary conditions or dissolved at the will of the contracting parties; for those things which are ordained by God Himself and by the natural law cannot be arbitrarily changed by men.

Note. The sanctity of the matrimonial contract must be greatly inculcated, especially in our days, when, from civil marriage introduced almost everywhere on earth and from frequent divorces, the danger has arisen that the people may consider matrimony as any other human contract. The sorrowful experience of all peoples and all ages proves more than sufficiently that divorces, and even adulteries, increase day by day because matrimony is no longer sufficiently considered as something sacred and immediately instituted by God. Hence every priest should strive with all his strength to inculcate the sanctity of matrimony in the hearts of men.

⁶³ There is no leisure to treat the history of matrimony here. The history of matrimony is the history of morality. The more sacred marriages are held by a people, the better are its morals; and the more frequently matrimony is disfigured by adulteries and divorces, the more its morals are ruined. Leitner treated the history of matrimony (Eherecht; Geschichte der nichtsakramentalen Ehe). Westermarck (History of Human Marriage) wrote in a Darwinistic sense.

635. b) The matrimonial contract is by divine law a bilateral and indivisible contract, which cannot limp.

The Angelic Doctor writes on the matter:⁶⁴ "Since matrimony is a certain relation, and a relation cannot arise in one of the extremes without its arising in the other, therefore whatever impedes matrimony in one impedes it in the other, because it cannot be that someone is a husband who is not the husband of a wife, or that someone is a wife not having a husband, just as neither can there be a mother not having a son; and therefore it is commonly said that matrimony does not limp." This principle, "Matrimony cannot limp," understood in this negative sense, must be carefully attended to in practice, and it was employed both by the celebrated Decree Ne temere XI, § 2, and by the Code of Canon Law, c. 1036, § 3, in this sense explained above by St. Thomas. For the Code establishes (loc. cit.): "Although an impediment is present on the part of only one party, nevertheless it renders the matrimony either illicit or invalid." Formerly it was much disputed whether this principle could also be taken in a positive sense, so that if one of the contracting parties were capable, that party could communicate this capability to the other party. This question indeed was of great moment in the impediment of clandestinity, in which this principle could truly be applied in a positive sense;⁶⁵ today, however, after the Decree Ne temere, it has lost practical utility. For the negative response is certain,⁶⁶ at least for marriages contracted after that Decree. Therefore the following practical conclusion is easily deduced:

An infidel, although not bound by matrimonial impediments of purely ecclesiastical law,⁶⁷ nevertheless, even after obtaining a dispensation from the impediment of disparity of cult, cannot validly contract matrimony with a Catholic unless he observes the statutes of the Code of Canon Law. The reason is that the Catholic is bound by these statutes, and consequently the infidel also indirectly.

⁶⁴ Suppl., q. 47, a. 1.

⁶⁵ Cf. Sacred Roman Rota, in the Mohilev case, April 18, 1916 (Acta Apost. Sed. VIII, 422).

⁶⁶ Cf. Boeckenhoff, Dissertatio de individuitate matrimonii, Berlin 1901.

⁶⁷ Cf. below, n. 651.

636. Proposition 3. The essence of matrimony in facto esse consists in a bond permanent of itself, which arises from a legitimate matrimonial contract.⁶⁸

Billuart writes excellently on this matter:⁶⁹ "Matrimony in facto esse does not consist essentially in mutual or external consent, nor in the mutual handing over of bodies, because these pass away while the matrimony remains; nor in a mutual right to intercourse, both because that right to intercourse is something consequent upon matrimony already constituted, for the spouses have a right to intercourse because they are joined in matrimony; and because matrimony subsists without that right, as in those who by mutual consent bind themselves to preserve continence, unless perhaps you understand the radical right, which is nothing other than the formal and passive bond or union.... I said: in the formal bond, because the bond is not taken causally for the thing which binds; for thus it is the contract, but for the formal mode and bond, or the passive union resulting from the causal bond, which St. Thomas, q. 44, a. 1, places in the relation of the persons joined."

⁶⁸ Cf. Roman Catechism, p. 1, c. 8, q. 4.

⁶⁹ De matrimonio, diss. 1, a. 1.

637. Scholion. There is no reason for us to speak of the necessity and moral goodness of matrimony. For from what has been said it manifestly follows that matrimony is necessary for the human race and is something morally good in itself. For God commanded men in paradise: "Increase and multiply."⁷⁰ Moreover, the suitable propagation of the human race is impossible without legitimate matrimony. For not only the physical generation of offspring is required, which indeed can be had without matrimony, but also the bodily and spiritual education of the offspring born. This education indeed is morally impossible unless the father and mother are joined in legitimate matrimony and with united strength provide for the welfare of the offspring. Furthermore, true family life and the mutual love of men perish without marriages. Hence the error of certain Socialists and Mormons is most wicked, who wish to abolish all marriages and proclaim so-called free or promiscuous love. But although matrimony is something morally good and necessary for the whole human race, it does not therefore follow that every capable man must contract matrimony. For the propagation of the human race is already had so sufficiently that from the celibacy of a certain few men, not only does no harm arise, but rather the greatest utility. By accident, however, an obligation to enter matrimony can also be incumbent upon some determinate man, for example, to repair damage inflicted, to fulfill a promise made, etc. There is no leisure here to speak of the utility and excellence of virginity.⁷¹

⁷⁰ Gen. 1:28.

⁷¹ Cf. S. theol. 2, 2, q. 152, aa. 2 and 4, and above, II, n. 659.