Article — Prümmer, Manuale Theologiae Moralis
Article III. On The Division Of Matrimony
Preliminary note. Matrimony is not divided in the same manner by diverse authors; indeed, the same division is not always taken in the same sense. For this reason confusions and disputes easily arise, as has in fact already happened concerning the notion of legitimate and ratified matrimony.72 But since there ought not to be a quarrel about words, we explain the following divisions of matrimony, leaving full liberty to anyone who prefers to adduce other divisions and explanations.
We therefore divide matrimony:
72 Cf. Freisen, Geschichte des kanonischen Eherechtes, § 10.
638. 1. Into legitimate, ratified, consummated.
Legitimate matrimony is a matrimonial contract validly entered into by two non-baptized persons.73 Since these persons are not bound by purely ecclesiastical laws (because they are not members of the Church), but are bound by just civil laws and by the natural law, legitimate matrimony can therefore also be defined: a matrimony of non-baptized persons to which no diriment impediment, whether of natural law or of civil law, is opposed; or, still more briefly: every valid matrimony which is not a sacrament.74 Hence it follows that the so-called civil matrimony of Christians is not legitimate matrimony, because it is either valid (for example, the marriages of Protestants), and then it is not only legitimate but also ratified, and a true sacrament; or it is invalid (because of some impediment), and then it is concubinage, at least material.
Ratified matrimony is a matrimonial contract validly entered into by Christians, to which, however, marital carnal intercourse has not yet supervened. Such a matrimony is called ratified because it is ratified by Christ and the Church through the sacrament; for in Christian matrimony the contract cannot be separated from the sacrament.75
Consummated matrimony is that in which carnal intercourse has been had. Two things, however, must be noted here: a) A matrimony is not said to be consummated from the fact that carnal intercourse perhaps preceded the valid matrimony, but only from true marital intercourse, and that apt for generation. Therefore matrimony is not consummated even through onanistic or sodomitical intercourse;76 but it is consummated through any penetration of the vagina made by the male member with seminal emission within it. b) Even the legitimate matrimony of non-baptized persons can be consummated, but it can never be ratified, because it is not a sacrament; but in the case in which both non-baptized spouses receive baptism, by that very fact the matrimony becomes ratified and a sacrament, provided, however, that the matrimonial consent perseveres (concerning which more fully below).
73 Code of Canon Law, c. 1015, § 3. Formerly the matrimony even of Christians was called legitimate if all the legal forms had been observed (cf. c. 17, C. 28, q. 1, and Benedict XIV, De syn. dioec., l. 8, c. 12, n. 5 at the end). Since a valid matrimony between a baptized and a non-baptized person more probably lacks the sacramental character (cf. below, n. 649), such a matrimony also appears to be legitimate, but not ratified.
74 This matter will be treated more fully below, n. 649.
75 Cf. condemned propositions 66 and 73 in the Syllabus of Pius IX, cited above in n. 628, note 1.
76 Cf. Eschbach, Disp. physiol.-theol., disp. 2, c. 2.
639. 2. Into public, clandestine, occult (secret).
Public matrimony is considered to be that which has been contracted in the face of the Church, or in another public manner recognized by the Church as valid. Hence, for example, those marriages are public which have been contracted before two witnesses and the pastor or another competent priest.
Clandestine matrimony77 is a marriage entered into without the presence of the pastor and two witnesses. According to the discipline in force, there are no other valid clandestine marriages (outside a case of grave necessity) except marriages of non-Catholics.78
Occult matrimony (or matrimony of conscience)79 is that which is validly contracted before the pastor and two witnesses, but whose celebration is concealed from the people for a most grave reason. In order that this concealment may be obtained, the banns are omitted; the matrimony is celebrated in a secret place; the Ordinary or pastor and the assisting witnesses are bound to observe secrecy; the matrimony contracted is not recorded in the ordinary register of marriages, but in a special book to be kept in the secret archive of the episcopal curia. A special permission of the bishop is required, however, in order that a matrimony of conscience of this kind may be celebrated licitly.80 The reason for which the bishop can permit such a matrimony is, on the one hand, the moral necessity of entering matrimony and, on the other hand, the moral impossibility of celebrating a public matrimony; for example, if, because of civil laws or other circumstances, someone cannot celebrate a public matrimony, and nevertheless matrimony is necessary in order to provide for the conscience of the contracting parties. Children born or to be born of an occult matrimony, after receiving baptism, are to be inscribed not in the parochial register of the baptized, but in some secret book preserved in the episcopal curia. The obligation of preserving secrecy on the part of the Ordinary ceases if some scandal or grave injury to the sanctity of matrimony is imminent, or if the parents do not take care that the children born be baptized, or neglect the Christian education of the children.81
Matrimony of conscience must by no means be confused with morganatic matrimony,82 which is a legitimate marital union between a person of great nobility and a person of very disparate condition, for example, between a prince and a theatrical actress, entered into with the agreement that, although the matrimony possesses full right before the Church, in the civil forum the wife and the children begotten of her do not fully succeed to the honors, dignities, and goods of the husband.83 The name morganatic matrimony appears to have been taken from the German word Morgengabe, because on the day following the celebration of such a matrimony a morning gift was granted to the wife. Moreover, several things concerning the conditions of morganatic matrimony are still obscure.84 Its practice is greatly limited in our times.85 Its effects, being merely civil, do not touch Christian matrimony itself. When such a case occurs, the pastor should consult his own bishop, who is to decree according to his prudence what is to be done.
77 [According to its native sense, clandestine matrimony signifies a marriage entered into secretly without witnesses, so that legitimate proof does not thereby appear. Later, those marriages were called clandestine which were celebrated without the customary solemnities (cf. De Smet, De sponsal. et matrim., n. 93). Perhaps it would be better if this whole terminology (which, moreover, is no longer found in the new Code) were now omitted, and marriages authentically celebrated in the Catholic Church and marriages validly entered into outside the Catholic Church were distinguished.]
78 Cf. below, n. 754.
79 Gewissensehe.
80 Cf. Benedict XIV, Constitution Satis vobis, November 27, 1741; Leo XIII, Letter to the Bishops of Venice, February 8, 1893; Code of Canon Law, c. 1104.
81 Code of Canon Law, c. 1106.
82 It is also called matrimony ad manum sinistram or ad legem salicam. Cf. Leitner, Lehrb. des Eherechts, p. 76.
83 Cf. Benedict XIV, De syn. dioec., l. 13, c. 23, n. 12.
84 Cf. Staatslexikon, s.v. "Ebenbürtigkeit"; Freisen, Geschichte des kanonischen Eherechtes, § 8; Leitner, loc. cit., § 11.
85 The most famous morganatic matrimony was contracted by Archduke Francis Ferdinand (murdered by a wicked assassination, together with his wife, on June 28, 1914), who on July 1, 1900, took Countess Sophia of Chotek in matrimony, after he had previously renounced for his wife the dignity of empress, and for the children to be born the rights of the kingdom.
640. 3. Into valid, invalid, putative.
Valid (true) matrimony is that to which no diriment impediment is opposed; but if a prohibiting impediment is opposed, the matrimony indeed remains valid, but is illicit.
Invalid (void, null) matrimony is that to which a diriment impediment is opposed; but if the contracting parties nevertheless entered the marriage in bad faith, that matrimony is called attempted.86
Putative matrimony is called that which is indeed in reality invalid because of a diriment impediment, but which was contracted in good faith by at least one of the contracting parties. In order, however, that a matrimony of this kind be recognized by the Church as putative, it is required that the nuptials have been entered into publicly, and neither clandestinely nor while the Church opposed them.87 Offspring born of a putative matrimony of this kind is ordinarily considered legitimate, and indeed both by Canon Law and by several civil laws, for example, in Germany,88 France,89 Austria,90 and Spain.91 As soon as both putative spouses become certain of the nullity of the matrimony, that matrimony ceases to be putative,92 and consequently the putative spouses must then abstain altogether from the use of matrimony.
86 Cf. the excommunication inflicted upon clerics in major orders and solemnly professed religious who attempt matrimony, n. 544.
87 Cf. c. 2, §§ 11-14, X 1, 7, and c. 3, X 4, 3; Council of Trent, sess. 24, c. 1, De reformatione matrimonii.
88 Civil Code, § 1699.
89 Civil Code, arts. 201 ff.
90 Civil Code, § 160.
91 Civil Code, art. 69.
92 Code of Canon Law, c. 1015, § 4.
641. Scholion. On presumed matrimony. Formerly authors discussed presumed matrimony at length, which in the external forum is presumed to exist from some fact until the contrary is clearly proved. Such a presumed matrimony was held to exist chiefly in three cases, namely, if carnal intercourse followed: 1. valid betrothals; 2. a conditional matrimony; 3. a matrimony contracted in impuberty. Presumed matrimony has certainly been abolished in the first and third cases,93 and probably also in the second.94
93 Constitution Consensus of Leo XIII, February 15, 1892; Code of Canon Law, c. 1067, § 1.
94 Cf., however, below, n. 738.