§ 1. On the Qualities of Matrimonial Consent

Matrimonial consent must be:

1. true, that is, not fictitious or simulated or jocular.

732. For each contracting party must have the true and sincere intention of handing over to the other a right over his or her own body in relation to generation. For this reason a union between a man and a woman made for other ends, for example, for mutual solace and protection alone, for obtaining only the wealth of the other party, and so forth, is not a true matrimony. - A fiction or simulation of matrimonial consent is present when one contracting party externally indeed seriously and duly pronounces the words or other signs expressing consent, but interiorly has an entirely different intention. The intention of such a simulator can be threefold: 1. of not contracting at all; 2. of contracting indeed, but not binding oneself; 3. of contracting and binding oneself indeed, but not fulfilling the obligations that arise. This third simulation is indeed gravely sinful, because it is a notable unjust deception of the other party, but it does not invalidate the matrimony contracted, because the essence of matrimony consists in sincere consent to contract. But the first and second simulation invalidate matrimony, because true matrimonial consent is then not present.

Since the internal consent of the mind is always presumed to conform to the words or signs employed in celebrating the matrimony,⁵¹² in the external forum such fictions are not acknowledged except after clear proof, which indeed is quite difficult. For even the sworn affirmation of one or both spouses does not suffice, but other witnesses or indications so certain that no reasonable doubt concerning the existing fiction remains are required.

You will ask: a) Whether one who consents fictitiously in a Christian matrimony is guilty of sacrilege properly so called. Some affirm it, for example, Pirhing,⁵¹³ Schmalzgrueber,⁵¹⁴ and Marc,⁵¹⁵ because he simulates the sacrament of matrimony, which is true sacrilege, from which not even grave fear excuses, as is evident from proposition 29 condemned by Innocent XI: "Urgent grave fear is a just cause for simulating the administration of the sacraments."⁵¹⁶ - Other authors more probably deny it, for example, St. Alphonsus,⁵¹⁷ D'Annibale,⁵¹⁸ Gasparri,⁵¹⁹ and so forth. The reason is that the simulation of a sacrament, which is sacrilege, is present only when someone indeed posits the matter and form of the sacrament, but withholds the internal intention of administering a true sacrament, such that the entire rite is vain and null. But one who fictitiously consents in matrimony posits no matter and form of the sacrament of matrimony, because he destroys the matrimonial contract itself, which is the matter and form of this sacrament, and therefore he does not properly simulate the sacrament of matrimony. This reason acquires still greater force from what is soon to be said.

b) Is it ever lawful to give fictitious matrimonial consent? Affirmatively, provided that a grave cause is present. Such is the common opinion.⁵²⁰ Hence, for example, it is lawful to give fictitious consent if someone is compelled by grave unjust fear to enter matrimony, or if someone discovers that he is bound by some diriment but dispensable impediment when all things are already prepared for the nuptials and the matrimony can neither be deferred nor a dispensation obtained here and now. But if in these cases it is lawful to give fictitious consent, it is evident of itself that not every fictitious matrimonial consent is true sacrilege, because it is never lawful to commit sacrilege.

c) To what is one bound who has consented fictitiously with grave fault? First, he cannot seek or render the conjugal debt. This is evident, because such an act would be foul fornication. Then he is bound to repair the unjust harm that he inflicted upon the other party by deceiving that party. Unless great harms are feared from convalidating the matrimony, he is bound to give true consent as soon as possible, so that the matrimony becomes legitimate. The reason is that when two freely contract, with one party proceeding sincerely, the other party is likewise bound to proceed sincerely.⁵²¹

⁵¹² Code of Canon Law, can. 1086, § 1.

⁵¹³ In 4, tit. 1, n. 97.

⁵¹⁴ In 4, tit. 1, n. 230.

⁵¹⁵ Instit. mor., n. 1978.

⁵¹⁶ Denz., n. 1179.

⁵¹⁷ Theol. mor., l. 6, n. 62.

⁵¹⁸ Summula Theol. mor. III, § 295.

⁵¹⁹ De matrim. II, n. 795.

⁵²⁰ Cf. St. Alphonsus, Theol. mor., l. 6, nn. 62 and 887; Marc, loc. cit. Milante seems to be almost the only one who denies this.

⁵²¹ Cf. Billuart, De matrim., n. 2.

733. 2. free and deliberate.

That matrimonial consent must be free is evident from the ancient Corpus of Law:⁵²² "Matrimony is contracted by consent alone, and when inquiry is made concerning that consent, the one whose mind is to be investigated ought to enjoy full security, lest through fear that person say that what he hates is pleasing to him, and the outcome which is accustomed to proceed from unwilling nuptials follow." - St. Thomas⁵²³ offers two reasons on account of which matrimonial consent ought to enjoy full liberty: a) because matrimony signifies the union of the Church with Christ. But this union is a free union of love. Therefore likewise in every matrimony there ought to be a free union of love. b) The bond of matrimony is perpetual. Hence that which is repugnant to perpetuity takes away matrimony. But fear which befalls a constant man takes away the perpetuity of a contract, because restitutio in integrum can be sought. And therefore this coercion of fear which befalls a constant man takes away matrimony. - The matrimonial yoke, although willingly assumed, is already hard; but it becomes cruel servitude when it is coerced.

Since the matrimonial contract is a most grave matter, previous serious deliberation with perfect knowledge is moreover required. Wherefore if someone is insane or drunk or hypnotized, he does not have sufficient deliberation for giving valid matrimonial consent, and a matrimony perhaps entered in this way is null.

Force, fear, and error are opposed to the necessary liberty and deliberation; these will be treated more fully below.

3. concerning the present.

As was said above, the essence of matrimony consists in consent given concerning the present; therefore consent concerning the future does not suffice.

⁵²² c. 14, X 4, 1.

⁵²³ Suppl., q. 47, a. 3.

734. 4. mutual and simultaneous.

Matrimony is a bilateral contract, for which it is altogether required that both contracting parties give mutual consent. Therefore it does not suffice that one alone give consent, but it is required that both contracting parties give and accept consent. Then it is necessary that the handing over and acceptance of the consents be simultaneous. Nevertheless, a moral union suffices. Hence, for example, if Caius says to Sempronia: I take you in matrimony, and Sempronia here and now responds nothing, but deliberates and after an hour says to Caius, who is waiting: I too take you in matrimony, such consent is sufficiently simultaneous. In practice, according to the discipline now in force, a question concerning the simultaneity of consent can rarely arise. But in ancient times, when marriages were not rarely contracted through a proxy, this question was of greater importance.

735. 5. externally and legitimately manifested.

The Council of Florence declared in the Decree for the Armenians: "The efficient cause of matrimony regularly is mutual consent expressed by words concerning the present."⁵²⁴ - This word "regularly" does not pertain to mutual consent, which must be present not only regularly but always, but to "expressed by words concerning the present." For although in extraordinary cases matrimonial consent can be expressed by any intelligible external sign, for example, by writings, nods, or a proxy, nevertheless regularly it must be expressed through clearly pronounced words. Hence the parish priest assisting at the matrimony is to require from those about to marry that they express consent not only by nods or tears but also by clear words, because otherwise many inconveniences can arise, as experience testifies. Innocent III⁵²⁵ said: "Matrimony is truly contracted through the legitimate consent of the man and woman, but as far as the Church is concerned words expressing consent concerning the present are necessary; for the deaf and mute can contract matrimony through mutual consent without words." From this some deduce that words expressing consent are prescribed by the Church under grave obligation. More probably, however, this ecclesiastical precept binds only under light obligation. Thus St. Alphonsus,⁵²⁶ who adds: "But modesty or another reasonable cause would well excuse from such a fault." In our times, indeed, modesty alone does not seem to be a sufficient cause for abstaining from words expressing matrimonial consent. For the Code of Canon Law, can. 1088, simply establishes: "The betrothed are to express matrimonial consent by words; nor is it lawful for them to employ equivalent signs if they can speak."⁵²⁷ - Moreover, the parish priest himself is commanded, in receiving the consent of those about to marry, to employ that formula of words which is prescribed in the statutes of each diocese. For the Council of Trent⁵²⁸ established: "The parish priest, having questioned the man and woman and understood their mutual consent, is either to say: 'I join you together in matrimony, in the name of the Father and of the Son and of the Holy Spirit,' or is to employ other words according to the received rite of each province." - Matrimonial consent is legitimately manifested when all those things prescribed by ecclesiastical law, both as regards liceity and as regards validity, are observed. All these things will be treated below, when there is discussion of the celebration of matrimony.

⁵²⁴ Denz., n. 702.

⁵²⁵ c. 25, X 4, 1.

⁵²⁶ Theol. mor., l. 6, n. 888.

⁵²⁷ Can. 1088, § 2.

⁵²⁸ Sess. 24, c. 1, de reform.

736. Scholion. On the manifestation of consent through a proxy.⁵²⁹ A few things are to be said concerning this matter, since in present times it is not so practical, because it rarely happens.

For the validity of such a matrimony it is required:

1. that there be a special mandate for contracting with a determinate person. This mandate must be signed: a) by the mandating party himself; but if he does not know how to write, this is to be noted in the mandate and another witness is to be added who signs the document; b) or by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either one, or by two witnesses.

2. that, before the proxy contracts in the name of the mandating party, the mandating party has not revoked the mandate or fallen into insanity.

3. that the proxy exercise his office personally and not through another subdelegated person.

Moreover, it is prescribed: a) that diocesan statutes perhaps enacted concerning this matter be observed; b) that a just cause be present; c) that the permission of the Ordinary be had if time permits.

Matrimony can also be contracted through an interpreter, but not also through letters, since the Code of Canon Law⁵³⁰ generally establishes: "For contracting matrimony validly, it is necessary that the contracting parties be present either personally or through a proxy." But if matrimony is contracted through letters, the contracting parties are not present.

6. absolute and not conditional.

Authors warn that the matrimonial contract cannot licitly be entered under a condition unless the bishop has expressly permitted this for most grave reasons. In our times such permission is scarcely ever found.⁵³¹ But it happens not so rarely that those about to marry on their own authority place conditions in contracting matrimony; by this unhappy manner of acting the very validity of the matrimony is placed in danger. Hence certain brief rules drawn from the Code of Canon Law, can. 1092, are indicated here for discerning whether a matrimony entered conditionally is valid or not. But we omit several cases adduced by older authors which today have scarcely any practical utility. For suspensive, resolutory, and interpretative conditions are customarily distinguished.⁵³²

⁵²⁹ Cf. Code of Canon Law, can. 1089-1091.

⁵³⁰ Can. 1088, § 1.

⁵³¹ Cf. Austrian Instruction, § 55.

⁵³² Cf. above, II, n. 261.