Chapter I. Betrothal

THE seventh sacrament of the Christian Church is Marriage, and because it is usually preceded by an engagement to marry, we will first treat of betrothal. Betrothal may be defined as a mutual promise of future marriage between persons who may marry lawfully.

It is a mutual promise or a bilateral contract between a man and a woman, and the conditions which are required for the validity of any bilateral contract are requisite for betrothal. There must be a serious, voluntary, and deliberate intention to enter into the agreement: Mere unmeaning flirtation, or the expression of a wish by the man that he could make the woman his wife, does not make a betrothal. Anything which destroys the voluntariness of the act will prevent it from being a valid contract. Substantial mistake about its nature or about the identity of the other party to the contract, and probably even mistake about some unessential quality in the other party, if it were the motive for entering into the contract, would make it null and void. As grave and unjustly caused fear is a diriment impediment to marriage, so, too, it prevents a valid engagement to marry.

The promise must be deliberate, made with full knowledge and advertence to the serious step which is being taken. There must be, as divines say, the deliberateness about the act which is necessary to commit a grave sin. The mutual consent of the parties must be expressed by words, writing, or other suitable sign. The acceptance by a woman of a ring from a man who has asked her to be his wife is a sufficient expression of consent and concludes the contract.

For many years past a special law has existed in Spain by virtue of which no betrothal is valid unless attested by a formal document in writing. In the year 1900 this law was extended to the whole of Spanish America, and by the decree of the Sacred Congregation of the Council, August 2, 1907, no betrothal between Catholics or in which one of the parties is a Catholic is valid in conscience or in law or has any canonical effects unless it is contracted in writing and is signed by the parties, and also signed either by the parish priest, or by the local ordinary, or at least by two witnesses. If either of the parties or both of them are unable to write, the fact should be noted in the document, and another witness must be added who will sign the document together with the priest, or the local ordinary, or the two witnesses mentioned above. This decree binds all Catholics of the Latin rite throughout the world, and takes effect from Easter Sunday, April 19, 1908 (Can. 1017).

The term parish priest in this decree is used to designate not only him who is lawfully placed in charge of a canonically erected parish, but in countries where there are no canonically erected parishes the priest to whom the cure of souls in a definite district is lawfully entrusted, and who is equivalent to a parish priest, and in missions where as yet the districts are not definitely marked out all priests who in any place have the general cure of souls assigned them by the superior of the mission.

The parties must be capable of entering into a lawful marriage at any rate at the time contemplated when the engagement is made. For a promise to do something which is impossible or unlawful has no binding force, and so if at the time contemplated there will still be some diriment or prohibitory impediment between the parties, an engagement to marry is void.

A valid contract to marry at a future time when the parties will be free to do so may be entered into by those who are now hindered by some impediment. And so children under age, though incapable of marrying, may enter into a valid betrothal. According to the old canon law, even their parents might make a valid engagement for them, if they were present and did not express dissent; or, if absent, afterward ratified the contract. The decree of August 2, 1907, abolishes this rule, as also the presumption of law by which marriage attempted by children under age was presumed to be a valid engagement to marry.

Some authors applied that presumption to the case of clandestine civil marriages contracted in places subject to the decree Tametsi of the Council of Trent. They held that although such a marriage was null and void, yet it had the effects of a betrothal, as in the case of those under age. Leo XIII, however, by a decree dated March 17, 1879, decided that a clandestine marriage has not the effects of a betrothal even if the parties intended that it should have.

Betrothal of children under seven is presumed to be amend for want of the use of reason, but if it is proved that the parties to the contract had sufficient use of reason in spite of their tender age, the engagement will be valid; malice is then said to supply for the want of age.

Betrothal under condition, as, “I will marry you if I can earn £200 a year,” is lawful, and follows per se the ordinary rules of conditional contracts. Such a betrothal will impose on the party who enters into it an obligation to do what he can to fulfil the condition, and when the condition is fulfilled the engagement will become valid and binding without any renewal of consent. Similarly, an engagement in this form, “1 will marry you if I reach the age of twenty-one,” will become a binding engagement on attaining that age. On the contrary, an engagement under an impossible condition is null and void from the commencement. And so, if two parties between whom there is a diriment impediment, which either cannot be dispensed or for which a dispensation is not usually given, enter into an engagement under the form, “I will marry you if we can get a dispensation,”’ there will be no valid contract. It is much controverted among canonists and divines whether the same is to be said when the impediment is one for which a dispensation can be, and usually is, granted. If cousins, for example, entered into an engagement under the form, “‘ I will marry you if I can get a dispensation,” what would be the effect of such an engagement? ‘There would, of course, be an obligation to ask for a dispensation; but if it were got, would there be a valid betrothal by virtue of the conditional engagement, or would the parties have to renew their consent ? Many authors maintain that in this case there is no valid betrothal without a renewal of consent. For proof of their view they point out that the parties were not free to enter on an engagement to marry on account of the diriment impediment between them; that it is unbecoming to contract on condition that the superior grant a dispensation from the law which should be observed by all; and that when the question has been submitted to Rome the decision has uniformly been in favour of this view. On the other hand, many good authors hold that there is nothing in these reasons to prohibit us from applying to such cases the ordinary doctrine concerning conditional contracts, and so the general question remains undecided and uncertain. Both opinions are theologically probable.