Article I. On the Nature of Marriage

Marriage can be considered in two ways, namely as contract and as sacrament. Considered as contract, it is a covenant by which a man and a woman legitimately hand over to each other dominion over their bodies in order to acts apt of themselves for the generation of offspring, and oblige themselves to an undivided society of life. But considered as sacrament it is defined: a sacrament of the New Law conferring grace for sanctifying the legitimate union of man and woman and for piously receiving and holy educating offspring.

§ 1. The primary end of Marriage is the procreation and education of offspring; the secondary end is mutual assistance and the remedy of concupiscence (Can. 1013).

Marriage is divided in many ways, for it is:

1°. In fieri or in facto esse. - Marriage in fieri is said to be the actual contract itself, which is perfected by the mutual consent of man and woman. But the continuing wedlock in the bond which comes from the matrimonial contract is called in facto esse.

2°. § 1. A valid marriage of the baptized is called ratified, if it has not yet been completed by consummation; ratified and consummated, if between the spouses there has taken place the conjugal act to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh.

§ 2. Once marriage has been celebrated, if the spouses have cohabited together, consummation is presumed until the contrary is proved.

§ 3. A marriage validly celebrated between non-baptized persons is called legitimate.

§ 4. An invalid marriage is called putative if it has been celebrated in good faith by at least one party, until each party becomes certain of its nullity (Can. 1015).

I say 1°. Marriage of Christians celebrated by a legitimate rite is a true sacrament, properly so called, of the New Law. It is established from Trent, sess. 24, can. 1, where it is said: "If anyone shall say that Marriage is not truly and properly one of the seven sacraments of the Evangelical Law instituted by Christ the Lord, but invented by men in the Church, and that it does not confer grace, let him be anathema."

And from Canon 1012:

§ 1. Christ the Lord raised the matrimonial contract itself between the baptized to the dignity of a sacrament.

§ 2. Wherefore, among the baptized there cannot exist a valid matrimonial contract without its being by that very fact a sacrament (Can. 1012).

I say 2°. § 1. The consent of the parties, legitimately manifested between persons capable by law, makes marriage; and this consent cannot be supplied by any human power.

§ 2. Matrimonial consent is an act of the will by which each party hands over and accepts the right over the body, perpetual and exclusive, in order to acts apt of themselves for the generation of offspring (Can. 1081).

C. 1, C. xxvii, q. 2: Intercourse does not make Marriage, but the will; C. 2, ibid.: Let the consent alone of those whose conjunctions are at issue suffice according to the laws. If this consent alone should perhaps be lacking in nuptials, all other things, even when celebrated with intercourse itself, are frustrated.

Every bilateral contract is constituted by the consent of parties capable of entering this contract. But marriage is a bilateral contract. Therefore marriage too is constituted by the consent of parties capable of entering it. Hence Eugene IV in the const. Exultate Deo: "The seventh is the Sacrament of Marriage, which is the sign of the conjunction of Christ and the Church according to the Apostle saying: this sacrament is great in Christ and in the Church. The efficient cause of marriage regularly is mutual consent, expressed by words concerning the present." And the error of the Armenians is condemned: "Also that among the Armenians there is no certain form of words expressing matrimonial consent between husband and wife; indeed many are compelled by parents and friends to come to the Church so that marriage may be made between them, and although one or both say that they do not wish to be matrimonially joined to each other, nevertheless marriage is made between them in the face of the Church." Thus Benedict XII to the Armenians, in the year 1341.

Besides, just as no contract can exist without consent, so neither can Marriage. Moreover, consent in every bilateral contract is an act of the will by which each party hands over and accepts that right which is proper to the contract. But the right proper to the matrimonial contract is the perpetual and exclusive right over the body in order to acts apt for generation. Therefore consent in marriage is an act of the will by which each party hands over and accepts a perpetual and exclusive right over the body in order to acts apt for generation. Consent must be mutual, perfectly deliberate, and manifested by external signs. The reason is that Marriage is a contract or covenant between a man and a woman, inducing a most grave obligation.

I say 3°. § 1. The internal consent of the mind is always presumed to be conformable to the words or signs employed in celebrating marriage.

§ 2. But if either party or each party by a positive act of the will excludes marriage itself, or every right to the conjugal act, or some essential property of marriage, he contracts invalidly (Can. 1086).

No one is to be judged to have said what he did not think in mind. The judge must take words according to their common signification; and even if the betrothed man proves that he had previously protested that he would not do the things which he says, nor wished to be understood according to the words, because he was going to speak fictitiously, he could recede from that will and express true consent into marriage; indeed he also seems to have acted thus according to that which he publicly did. Hence he is not believed, because interpretation must be made against him who employs deceit. Certainly in the forum of conscience one can believe him who accuses himself of fictitious consent; but in the external forum it is a question of administering justice according to assertions. Truly difficult is the proof of fictitious consent.

He enters a contract invalidly who excludes it by a positive act. Therefore he who by a positive act excludes every right to the conjugal act does not have matrimonial consent; but he who does not have matrimonial consent does not enter a valid marriage. He who by a positive act excludes the unity of marriage does not hand over and accept an exclusive right over the body; but such a one does not have matrimonial consent. He who by a positive act of the will also excludes indissolubility does not hand over and accept a perpetual right; but he who does not hand over a perpetual right does not have matrimonial consent.

I say 4°. Marriage enjoys the favor of law; wherefore in doubt one must stand for the validity of marriage, until the contrary is proved, with the prescription of Can. 1127 preserved (Can. 1014).¹

The marriage of the baptized is ruled not only by divine law, but also by canon law, with the competence of civil power preserved concerning the merely civil effects of the same marriage (Can. 1016).

¹ Cf. Addenda, p. 1129, n. 89.

Question 1. Must consent be expressed in words?

Resp. § 2. The betrothed are to express matrimonial consent in words; nor is it licit for them to employ equivalent signs, if they are able to speak (Can. 1088).

Words are to be employed for liceity; for the paragraph does not speak about validity.

Question 2. Does consent through a procurator suffice?

Resp. Affirmatively, provided the required conditions are present, because marriage has the whole nature of a contract; but any contract can be made through a procurator. Hence Canon 1088, § 1: For contracting marriage validly it is necessary that the contracting parties be present either by themselves or through a procurator; and the Roman Ritual, tit. VII, c. 2, n. 2: "Nor does the consent of one suffice, but it must be of both, and expressed by some visible sign, whether it is made by themselves or through a procurator." Personal presence now seems to be required except in the case of a procurator duly employed. But the conditions are declared in the following canon:

§ 1. With diocesan statutes added upon this matter remaining firm, in order that marriage through a procurator be entered validly, there is required a special mandate for contracting with a certain person, signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses.

§ 2. If the mandator does not know how to write, this is to be noted in the mandate itself, and another witness is to be added who himself also signs the writing; otherwise the mandate is invalid.

§ 3. If, before the procurator has contracted in the name of the mandator, this latter has revoked the mandate or has fallen into insanity, the marriage is invalid, although either the procurator or the other contracting party was ignorant of these things.

§ 4. In order that the marriage be valid, the procurator must perform his office himself in person (Can. 1089).

Question 3. Is Marriage entered under a condition valid?

Resp. It is certain that it is valid if the condition is concerning the past or concerning the present and is verified. The reason is that that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the sacrament. But if an honorable and possible condition concerning the future is added, then certainly the Marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present. But once the condition has been fulfilled, the Marriage is valid; since a conditioned contract, once the condition has been fulfilled, passes into absolute, and by that very fact is valid by reason of the sacrament, because among Christians the contract of Marriage cannot be separated from the sacrament. - Although Marriage is firm even if the condition is fulfilled while the contracting parties are ignorant, nevertheless they themselves cannot use marriage before receiving knowledge of this fulfillment; otherwise at least in will and intention they would commit fornication. - Cf. S. Alphonsus, n. 890; Baller. note (a) and (b), p. 719.

Question 4. Is marriage entered under a condition concerning a necessary or impossible or immoral future thing, but not against the substance of marriage, valid?

Resp. The marriage is valid, because such a condition is held as not added. - Cf. Can. 1092.

A condition once placed and not revoked:

1°. If it is concerning the future and is necessary or impossible or immoral, but not against the substance of marriage, let it be held as not added (Can. 1092).

Consent concerning a necessary future thing is held in law as equivalent to consent concerning the present; and hence, by the addition of a condition concerning a necessary future thing, marriage is neither suspended nor vitiated, but immediately begins to be valid as if it had been contracted purely and without any condition; for example, I contract with you if tomorrow the sun rises.

In the same way the contract is not suspended if it is concerning an impossible thing; for unless certain indications to the contrary are present, in so grave an affair the contracting parties are deemed truly and seriously to wish to do something and not playfully. And thus in the chapter which is called notable and much allegable, Gregory IX says: "If conditions against the substance of wedlock are inserted, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another more worthy in honor or resources; or if for gain you hand yourself over to adultery; the matrimonial contract, however favorable it may be, lacks effect. Although other conditions placed in marriage, if they were immoral or impossible, ought on account of its favor to be held as not added." C. 7, X, IV, 5.

Question 5. Is marriage entered under an immoral condition against the substance of marriage valid?

Resp. Negatively; thus the new Code decrees the matter: A condition once placed and not revoked, if it is concerning the future against the substance of marriage, renders it invalid (Can. 1092, 2°).

Because then consent in the substance of the contract, which is altogether required, is not had. Consent into a perpetual and exclusive right is not had; therefore neither consent into marriage. Therefore, when contracting is done truly with a condition against the essence of wedlock, certainly the marriage is null; as when by heretics a formula is employed under that explicit condition that this marriage can be dissolved in the case of adultery, then it can no longer happen that error concerning marriage has been absorbed by the general will of contracting according to the intention of Christ. For marriages between co-parties, say heretical ones, can be valid with a concomitant error concerning its indissolubility, when, as very often happens, the will of contracting marriage according to the intention of Christ prevails, and that error is absorbed in this intention. But if it is certainly established that a condition has been added to the substance of marriage, and especially to indissolubility or perpetuity, such nuptials are invalid. Cf. S. Off., 18 Dec. 1872; 9 Dec. 1874; 2 Oct. 1860; 29 Nov. 1882.

It will have to be investigated whether a condition contrary to the perpetuity and indissolubility of the conjugal bond, in some manner, directly or indirectly, explicitly or implicitly, was brought into the pact by the contracting parties, or whether the marriage was contracted with a depraved will of not consenting to a perpetual bond.

Question 6. Is it licit to enter marriage through an interpreter?

Resp. Marriage can also be contracted through an interpreter (Can. 1090).

Just as in other contracts a notary and witnesses can be sufficiently informed through an interpreter, so in this case the pastor and witnesses are informed concerning consent through an interpreter.

Question 7. Is consent presumed to persevere?

Resp. Even if marriage has been entered invalidly by reason of an impediment, the consent given is presumed to persevere until its revocation has been established (Can. 1093).

Question 8. Is it licit for a pastor to assist at a marriage to be contracted through a procurator or interpreter without the permission of the Ordinary?

Resp. The pastor is not to assist at a marriage to be contracted through a procurator or through an interpreter, unless there is a just cause and it is in no way licit to doubt the authenticity of the mandate or the trustworthiness of the interpreter, and, if time allows, the permission of the Ordinary has been had (Can. 1091).

The reason for this canon is clear from the necessity of driving away every error in so grave a matter. Therefore the pastor, before he assists, must be certain concerning the just cause of this manner of contracting, concerning the authenticity of the mandate, and concerning the trustworthiness of the interpreter; nor ought he to assist without the permission of the Ordinary.

Question 9. What is that which the contracting parties must not be ignorant of?

Resp. § 1. In order that matrimonial consent can be had, it is necessary that the contracting parties at least not be ignorant that marriage is a permanent society between a man and a woman for procreating children.

§ 2. This ignorance is not presumed after puberty (Can. 1082).

For without an act of the will no consent is possible; but there is no desire of a thing unknown, nothing willed unless known; and therefore, in order that there can be consent, the one consenting must not be ignorant of that into which he consents. Thus Pirhing, book IV, title 1, sect. 1, n. 85, places among the things necessary for wedlock knowledge or the judgment of discretion, by which one understands what he does.

By law sufficient discretion is presumed in those who have arrived at puberty.