Article II. On the Subject of Marriage

I say 1°. The subject of the sacrament of Marriage is every baptized human being, laboring under no impediment, whether natural or divine or canonical.

With this the Code harmonizes. All can contract marriage who are not prohibited by law (Can. 1035).

I said 1°. every baptized human being; for non-baptized persons are not capable of the sacraments of the Church, as is clear. - I said 2°. laboring under no impediment; for although of itself every baptized human being is a capable subject of the sacrament of Marriage, nevertheless per accidens many are barred from validly contracting Marriage on account of diverse impediments, both of natural law and of divine or ecclesiastical law, as will be said below in its place. Hence:

1°. The marriage of unbelievers, although it can be valid in the nature of a contract, nevertheless is not a sacrament. Indeed, the faithful person himself contracting Marriage with an unbeliever, even by dispensation of the Pope, according to many Doctors does not receive the sacrament. For the sign of the union of Christ with the Church, conferring sacramental grace, consists neither in the union of the man nor in the union of the woman, but in the union of both. Others, however, dissent, and say that the Marriage is then ratified and therefore has the nature of a sacrament on the part of the faithful person. - Cf. Baller. note (a), p. 749.

The Marriage of two unbelievers who are converted becomes a Sacrament when both are baptized, whether this happens successively or simultaneously. Namely, in that case the valid contract takes on the character or nature of a contract of one conjugal union among the faithful, which is a Sacrament; and at the moment of Baptism received by both, the marriage becomes efficacious of the grace itself. Thus with a better judgment preserved.

2°. Heretics and schismatics who, in entering Marriage, accurately and integrally observe the laws of the Church pertaining to the substance of the sacrament contract validly and are fortified by the sacrament, since there is nothing which can obstruct the value of this sacrament. The practice of the Church confirms this very thing, for she in no way compels them to renew consent if, coming to their senses, they return to the unity of the Catholic Church.

I say 2°. The betrothed contracting Marriage ought to be in the state of grace, because Marriage is a sacrament of the living. Those who contract while stained by mortal sin become guilty of sacrilege and do not perceive the sacramental graces necessary for spouses. Probably, however, those graces are only suspended, and, once the obstacle or mortal sin has been removed, they are applied to the soul. For practice, if no fruit is hoped from admonition, it will almost be better not to admonish the unworthy person concerning sacrilege, so that at least thus he sins less; and rather he will be induced to approach confession at least as soon as possible.

I say 3°. From a valid marriage there arises between the spouses a bond by its nature perpetual and exclusive; besides, Christian marriage confers grace on spouses not placing an obstacle (Can. 1110).

I say 4°. To each spouse from the beginning itself of marriage there belongs an equal right and office as regards the acts proper to conjugal life (Can. 1111).¹

I say 5°. Unless something else has been provided by special law, the wife, concerning canonical effects, is made a participant of the status of the husband (Can. 1112).

The woman retains the domicile and honor of the man. Cf. C. 3, de sepulturis, III, 12, in VI°.

Namely, the woman is the companion of the man, neither a handmaid nor a maidservant nor a slave. Unless special law establishes something else, she simply obtains the very status of the husband.

¹ Cf. Addenda, p. 1096, n. 32.

Question 1. Ought the Pastor to require that confession be premised to Marriage, or that a certificate of confession be exhibited by the betrothed?

Resp. He cannot absolutely and of itself require this, unless the synodal law in each diocese or a precept of the Bishop establishes it. The reason is that, although the state of grace is required for receiving this sacrament, nevertheless confession is not necessarily required, since contrition can absolutely suffice for those who are in the state of mortal sin. From another side, it is for the most part not known to the Pastor that the betrothed are not in the state of grace. - Cf. Second Plenary Council of Baltimore, n. 329.

Question 2. Who are legitimate children?

Resp. Legitimate are children conceived or born from a valid or putative marriage, unless the use of the marriage previously contracted was prohibited to the parents at the time of conception on account of solemn religious profession or a sacred order received (Can. 1114).

Those conceived or born from a valid marriage entered without a diriment impediment, or from an invalid marriage which nevertheless was celebrated in good faith by at least one party and hence is called putative, are legitimate unless conception occurred at a time when, on account of solemn religious profession or sacred order, the use of Marriage was prohibited. Therefore offspring sacrilegiously conceived, because the parent is a solemnly professed religious or in Sacred Orders, is not legitimate.

Question 3. Who is to be held as father, and which children are presumed as legitimate?

Resp. § 1. The father is he whom just nuptials demonstrate, unless the contrary is proved by evident arguments.

§ 2. Children are presumed legitimate who were born at least after six months from the day of the celebrated marriage, or within ten months from the day of the dissolved conjugal life (Can. 1115).

The reason for each is found in the necessary protection of the family and of hereditary succession. The first sentence is taken from Roman Law. Nevertheless, it admits proof to the contrary. The other part, in a similar way, provides for offspring and gives a principle for settling controversies, taken from natural law.

Question 4. What offspring is legitimated through subsequent marriage?

Resp. Through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated, offspring is made legitimate, provided the parents were capable of contracting marriage between themselves at the time of conception, or of pregnancy, or of nativity (Can. 1116).

The threefold time is to be noted, of conception, pregnancy, or nativity, in which the parents must be capable of contracting. Although they were incapable at the time of conception, provided they afterward became capable, the children are legitimated by the aforesaid subsequent marriage. Thus offspring born at a time when the parents were joined in marriage is legitimate, although at the time of conception they were incapable on account of some diriment impediment.¹

Legitimated children, as far as concerns canonical effects, are in all things equated with legitimate children, unless something else has been expressly provided (Can. 1117). Thus, for example, such persons are capable for tonsure, minor and sacred orders, and dignities in the Church; but not for the Cardinalate or Episcopate. Therefore, excepting certain prelatures, those legitimated are simply assimilated to legitimate children.

¹ Cf. Addenda, p. 1117, n. 69.