Article I: Notions, Divisions, Favor of Law

— 1. Sponsals for the future are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future marriage, between persons able by law. Before the Code, the individual words of the definition had to be weighed accurately, because sponsals, but not a diverse promise of marriage, induced the ecclesiastical impediment of public honesty, prohibiting marriage with any other person whatever, and diriming marriage with blood-relatives in the first degree of the bridegroom or bride. Both canonical impediments have now been removed. Wherefore, for marriages celebrated after the Code in force, this is no longer to be attended to, so that sponsals themselves have been reduced to the common genus of promises obliging from fidelity or justice. Therefore the Code reserves no chapter for sponsals, but c. 1017 joins various forms of promise, subjecting them all to a common condition of validity and effect.

2. For the promise can be unilateral, or of one person without a counter-promise, or bilateral, or of both; and, especially when it is unilateral, it can oblige from mere fidelity, or confer a right on the other, so that its violation is strictly injurious.

But the common condition of validity, for each forum, is that it be made by writing signed by the parties, that is, by the one promising and the one accepting or counter-promising, and either by the pastor or local Ordinary, or by at least two witnesses. If either or both parties do not know how to write or physically cannot, this must be noted for validity in the writing itself, and another witness (one) is to be added, who with the above-mentioned witnesses signs the writing.

The canonical effect, however, even of a valid promise obliging from justice, is only this: that damages from the violated promise are to be repaired. For this an action is given, but no longer for seeking the celebration of marriage (c. 1017). Thus, having imitated civil Codes, the canonical Code consults more for the liberty of marriages.

An invalid promise will not even give an action for repairing damages, unless because of unjust means employed, such as force and fear, and deceit.

It is clear besides that the general conditions of validity and dissolution of every contract or promise are to be observed. For the rest, cf. T. IV, nn. 23-29, the moral part.

— Notion of matrimony. Matrimony can be considered either in becoming or in fact being.

1. In becoming, the efficacious cause of the union is taken: it is the matrimonial contract, which among the baptized itself has been raised to the dignity of a sacrament, so that among the baptized a valid contract cannot subsist without being by that very fact a sacrament (c. 1012). It can be described as: the contract, and among the baptized the sacrament, by which man and woman legitimately hand over to each other their bodies, primarily for the end of procreating and educating offspring, secondarily for mutual help and a remedy of concupiscence (c. 1013, §1). The remote matter of the sacrament is the bodies of the contracting parties to be mutually handed over, or the mutual right over the body of the other. The proximate matter, and that from which, is the mutual handing over of bodies, which is contained in consent expressed by external signs.

The form is the same consent, insofar as it has the character of acceptance.

The minister is not the priest: it is the contracting parties themselves, because they posit the matter and form.

The competent priest is an "authorized" witness, or one endowed with authority, commanded by law.

Matrimony between a baptized party and a non-baptized party, although not a few still contend that it is a sacrament in the baptized party, should rather, with the more common opinion, be held as a mere contract, because that sacrament does not seem able to consist imperfectly in one; because the non-baptized party does not seem able to administer that sacrament to another; and because matrimony contracted in infidelity, even if it is consummated after the baptism of one party, allows place for the Pauline privilege. (Cf. these reasons in Wernz, Ius Decr., IV, 11 and note 95.)

2. Matrimony in fact being designates formally the union itself, or the very bond induced by the contract. It is matrimony more properly so called, whose "properties are unity and indissolubility, which in Christian matrimony obtain peculiar firmness by reason of the sacrament" (c. 1013, §2).

The res et sacramentum is, according to Cardinal Billot (De sacramentis, th. VI), the sacred bond of the mutual obligation of man and woman; Fr. de la Taille also places it in the conjugal bond, which, as he adds, is the symbol of the conjunction between Christ and the Church, redeemed from the corruption of the flesh of sin through the death of Christ (Mysterium Fidei, p. 581, note).

— Division. 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. If the spouses have cohabited, consummation is presumed, until the contrary is proved" (c. 1015).

Sanchez thought that by every reception of the virile seed into the uterus of the wife matrimony was consummated; nor does Sanchez doubt concerning that conclusion; today they rather judge that insemination in perfect copula is required (or with penetration into the female vessel. Cf. De Smet, De sponsalibus, etc., n. 157 and our De castitate, nn. 77-87).

It is called ratified insofar as it is confirmed or ratified by the sacramental character. Yet there are those who call ratified the matrimony of a baptized person with a non-baptized party if the license of the Church has acceded (cf. De Smet, n. 157). These suppose that in one person there can be a sacrament. The Code, abstaining from the doctrinal question, deliberately uses a manner not very perspicuous in the aforesaid c. 1015.

2. "Matrimony validly celebrated between non-baptized persons is called legitimate" (c. 1015, §3), or legitimate only. Sometimes every valid matrimony is said to be legitimate (cf. v. g. c. 1075).

3. Matrimony can be either true or valid, or invalid. "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" (c. 1015, §4).

Therefore a doubt which supervenes on good faith does not take away the character of putative matrimony.

4. Matrimony is called canonical and political or civil, according as it satisfies only the conditions required by canonical law, or also the conditions prescribed by civil law for obtaining civil effects. Of itself, civil law ought to join civil effects to canonical matrimony, although the civil power is competent concerning civil effects.

Sometimes civil, or merely civil, is called a matrimony which, although to the contracting Catholic party it is fictitious, satisfies only the conditions of civil law.

5. Matrimony is also distinguished as public, which is publicly celebrated in the face of the Church, and occult or of conscience, which, denunciations being omitted, is contracted secretly before only the pastor and two discreet witnesses (cf. c. 1104). From marriage of conscience differs morganatic marriage, which is made between persons of unequal condition with the agreement that the wife and children, content with a certain donation⁽¹⁾, remain without share in the dignity and patrimony of the man; and clandestine marriage, which, without a pastor as qualified witness, or without the other two witnesses besides the pastor canonically required, is celebrated even openly, for example before a civil magistrate.

When accidental solemnities are added, matrimony merits the special name of solemn nuptials.

⁽¹⁾ The name is taken from Morgengabe, a morning gift, because the effects in the family matter are reduced to a certain donation.

— "Matrimony enjoys the favor of law; wherefore, in doubt, one must stand for the value of matrimony, until the contrary is proved, saving the prescription of c. 1127" (c. 1014). That is, this presumption yields to the privilege of the faith, which from c. 1127, even in a doubtful matter, enjoys the favor of law, so that for the utility of the faith one can stand for the nullity of a doubtful matrimony.