Chapter V. The Marriage Contract

Marriage may be defined as a contract between a man and a woman by which they give each other the right to exercise the acts requisite for the procreation of children, and bind themselves to live indissolubly together. Living in accordance with this contract constitutes the state of marriage.

The primary end of marriage is the procreation of children for the preservation and increase of the race; besides this there are also the secondary ends of mutual society and help, and a lawful outlet for concupiscence. The Fathers and councils mention a threefold good in marriage: that of children, that of mutual fidelity, and that of the sacrament, or an indissoluble and holy union, typified by the union between Christ and his Spouse the Church.

It is the teaching of the Church, defined by the Council of Trent, that marriage between baptized Christians is a sacrament, and so Christ our Lord, though he did not institute marriage, yet raised it to the dignity of a sacrament of the New Law, causing the marriage contract to be productive of grace ex opere operato whenever it is worthily entered into by baptized Christians. Between these the contract is the sacrament, there is no real distinction between them, and among Christians a marriage cannot be valid without being also a sacrament (Can. 1012, 1013).

There are certain technical terms used by theologians to designate different kinds of marriage, and it will be well to give them here.

A valid marriage between non-baptized persons is called legitimate; when it is perfected by the use of marital rights it becomes consummated; a valid marriage between Christians not yet consummated is said to be a ratified marriage.

A true marriage is one that has been validly contracted and which can be proved by suitable arguments; a presumptive marriage is one presumed by law; a putative marriage is one thought to have been validly contracted by at least one of the parties, until both parties become certain of its invalidity (Can, 1015).

A canonical marriage is one celebrated according to the laws of the Church; a civil marriage is contracted according to the laws of the State; a secret marriage, or a marriage of conscience, is one celebrated without banns by the bishop’s leave before the parish priest and witnesses who are bound to secrecy; a morganatic marriage is contracted by a person of rank with one of inferior position in life on condition that she and her children are excluded from the rank of the father.

Marriage is rooted in human nature; it was instituted by God and raised by our Lord to the dignity of a Christian sacrament; and so of course it is honourable and its use is lawful. The marital rights, or the debt as St Paul calls it,¹ is the matter of the matrimonial contract, and therefore the right to use marriage is of its essence, and without it marriage cannot exist. However, marriage does not necessarily imply the exercise of the right which it gives, any more than the ownership of a house implies the use of it. Our Lady and St Joseph were really married though our Lady always remained a virgin.

Although marriage is lawful and honourable, yet all are not commanded to marry. A man may remain a bachelor if he please, and many women remain single without their having the option of being married. The Church, following St Paul, teaches that the state of celibacy, or virginity, voluntarily chosen in order to render a more whole-hearted service to God, is more perfect than the state of marriage. Our Lord himself said that there are some who refrain from marriage for the sake of the kingdom of heaven, and he added, ‘“‘ He that can take, let him take it.” At the same time he said, “All men take not this word, but they to whom it is given.” And certainly for some who are strongly inclined by nature to the pleasures of the flesh, or who have fostered their passions by indulgence, the word of St Paul remains true: “It is better to marry than to be burnt.”

¹ Matt. xix 11.

The efficient cause of marriage, as of all contracts, is the consent of the parties lawfully expressed outwardly by sensible signs. That consent must be mutual, referring to the present, not to the future; it must be deliberate and voluntary, and expressed by suitable signs; not only because it is a bilateral contract, but also because it is a sacrament, which is essentially an outward sign of invisible grace.

For the validity of the contract any suitable signs by word, or writing, or nods, would suffice. The contract is valid when entered into by proxy, by letter, or by other means of communication between the absent.¹

Ordinarily, for the lawful celebration of marriage the parties must be present with each other, and all must be done in accordance with what is laid down in the Ritual and in law.

Anyone who having entered into the contract of marriage afterward asserted that he had only feigned consent would not be listened to in the external forum. In the forum of conscience he should be told that he must give a real and internal consent, as that is practically the only way to repair the injury which by his fraud he has inflicted on the other party. If such a case occurred, it would not be necessary to go through the form of marriage again; all that would be required would be for the defaulting party to make good the expression of his consent (Can. 1135).

¹ 1 Cor. vii 3.

Marriage should be contracted absolutely, but if in any particular case it is contracted under condition, we must distinguish various cases to see how the condition will affect its validity.

(a) A marriage contracted under a condition which has reference to the past or to the present and is verified, as, “I agree to marry you if you are a maid,” is valid, but it will not be lawful to use marital rights until it is known whether the condition is verified or not. If the condition is not verified, the contract is invalid.

(b) An explicit condition against the essence of marriage which has reference to the future makes it null and void for want of true consent to marriage. ‘Thus the conditions, “ I marry you if you agree to have no offspring,” or, “‘ Until I find a more suitable partner,” or, “ If you will sell yourself for money,” make the marriage null and void; for such conditions destroy the perpetual and exclusive right, the transference of which is of the essence of the contract of marriage.

(c) If nothing against the substance of marriage is expressed in the contract, but one or both of the parties intends to do something which is against the essence of marriage, such an intention will vitiate the contract or not, according as it excludes marital rights or only implies a determination to abuse them. Thus if a man intended to have two wives on a footing of perfect equality, he would be married to neither of them; but if he intended really to be married to one and was also bent on keeping a concubine, his marriage with the first would be valid. Similarly, if two were to marry with the intention of living together in virginity, the marriage would be null and void if there was no transference of marital rights; if their intention excluded only the use of marital rights, the marriage would be valid.

The validity of marriage contracted with mutually opposed intentions will depend on which is predominant, or on which - would be chosen if their mutually destructive character were known and realized. And so, if a baptized person wants to be married but does not want the sacrament of matrimony, he will be married if that is the predominant intention; he will not be married if the intention to exclude the sacrament is predominant (Can. 1092).