Chapter I: On Matrimonial Consent

Order of discussion. We must treat briefly, imitating the Code, of the notion and necessity of consent, of the conditions necessary for consent, of the mode in which it can be given, and of its perseverance.

— I. Notion and necessity of consent. 1. "Matrimonial consent is an act of the will by which each party gives and accepts the perpetual and exclusive right over the body, in order to acts of themselves apt for the generation of offspring" (c. 1081, §2).

2. But consent can be supplied by no human power, since the sole cause of matrimony is the consent of the parties (c. 1081, §1).

Consent, moreover, is required to be: a) true: feigned consent cannot suffice; that which is feigned to be present is not truly present; b) mutual: each party gives and accepts the body of the other; c) it must give and accept a right over the body, perpetual and exclusive: perpetual, because matrimony is indissoluble; exclusive, because matrimony is of one man with one woman; d) it gives and accepts in order to acts of themselves apt, etc., but not for having offspring expressly and immediately (cf. St. Thomas, Suppl., q. 49, art. 3, c.). From this description are known the conditions contrary to the substance of matrimony: they are opposed to the perpetuity, to the unity of matrimony, to natural copula, and to offspring itself, not to be positively impeded in the use of marriage.

3. What knowledge is required that this consent can be given, we are taught by c. 1082, which nevertheless does not say that what it indicates to be necessary already always suffices. Therefore, at least it is required that matrimony be known to be a stable or permanent society between persons of diverse sex, and this for procreating children. Once the primary end of matrimony is known, the object of matrimony is already reached, which consists in acts of themselves apt for generation. Moreover, matrimony must be known to be a society for procreating children, not simply for obtaining them by some means: therefore it is necessary that the contracting parties know that this happens by some common work, perhaps not distinctly perceived. But one who is content with a confused notion virtually accepts the mode which must be used; let him impute it to himself if later it is discerned to be such as he would not have admitted. But this notion of matrimony would not suffice, by which it would be conceived as a mutual contract for educating together children bought in a market or fallen from heaven.

And since the proximate matter of the contract and sacrament is the handing over of the body for generative acts, with Vlaming, II, 523; Linneborn, §36, p. 269, we judge that, in some rare case, substantial consent can be lacking in a person who did not know that concession to the use of one's own body is contained in matrimony, and who abhorred a concession of this kind more than he admitted conjugal life. Gasparri himself requires that it be known that a man procreates children from a wife. But proof of that ignorance and of a prevailing will will be very laborious in the external forum.

But this ignorance of the nature or object of the contract is not presumed after puberty, but must be proved (c. 1082, §2).

By this canon it is also demonstrated that the reticence of parents is harmful, who deceive marriageable daughters by an artificial ignorance, and rashly hand them over to a bridegroom, often little pious, to be used or abused.

— II. Conditions of consent. Besides the truth of consent, there is also required its immunity from certain vices.

1. First, from error. Yet not every error renders matrimony invalid, but only that error which, with attention to the nature of the contract, is reputed substantial. But although it is to be desired above all that the contract, upon which the morally whole lot of several human persons depends, be infected by no error, nevertheless the necessary stability of a contract whose consequences are irreparable requires that very few causes of nullity have force to invalidate it. Wherefore, besides error, necessarily substantial, concerning the object of the contract, only a threefold error substantially vitiates consent:

a) error concerning the very person to whom one gives faith: concerning the person, that is, not concerning the name or riches, but concerning his or her individual identity, so that one thinks he is contracting with Peter while it is Paul, or with the elder child of such a family, while it is the younger child. This would no longer be that error if he intended to make a pact with the person present, whoever that person may be;

b) error concerning a quality which redounds into error of person. For of itself error concerning a physical, intellectual, or moral quality does not stand in the way of validity. But error concerning a quality which has been expressly required as a condition without which not, redounds into error of person. For if the condition is lacking, no consent of itself is had;

c) error of servile condition, or concerning the freedom of the person, if a free person (therefore not if a slave) contracts with a person whom he thinks free, whether freeborn or emancipated, while that person is held by servitude properly so called.

No other error essentially vitiates matrimonial consent.

Not simple error (if fear is added, or contrary will, see below) concerning the unity of matrimony, or indissolubility, or sacramental dignity (c. 1084); not error concerning virginity, virtue, disposition, riches, nobility of the person, or concerning the paternity of a conceived child, by reason of which matrimony is contracted. Nor does it matter that the error gave cause to the contract, or was mixed with deceit or fraud.

— 2. Consent is required immune from fiction. We have already warned above that feigned consent is altogether ineffective. But internal consent is always presumed to have been conformed to the words or signs.

But, besides the subjectively complete fiction of him who wills nothing, there is a partial fiction from the object, when consent is borne only to an object or contract substantially diverse. Wherefore, "if either or both parties by a positive act of the will exclude matrimony itself, or every right to the conjugal act, or some essential property of matrimony, he contracts invalidly" (c. 1086, §2). Every right to the conjugal act is excluded if she who is named a wife, in the manner of a concubine, can complain of no injury if, even without cause, she is dismissed. Not every right is excluded if it is conceded limited in time or subordinated to the condition of fidelity, etc. But then an essential property of matrimony can easily be excluded. But the excluding will is supposed to be efficacious, which is not destroyed by a contrary prevailing will, as if one should will matrimony, and at the same time that it be dissoluble, while ignorant of the indissolubility of matrimony. Cf. what is to be said below, n. 791, concerning conditional will.

— 3. Consent is demanded immune from a certain force and fear. Not every fear, even one which gives cause to the contract, brings with it the nullity of matrimony, but only force or grave fear inflicted from without and unjustly, from which, that one may free himself, he is compelled to choose matrimony (c. 1087). Therefore invalidating fear must satisfy these conditions:

a) force, under which name comes not only violence strictly so called, but every free extrinsic cause which produces fear, must have effected grave fear, whether such absolutely, which falls upon a steadfast man, or at least such relatively. Grave is that which is overcome with difficulty. Such can be even reverential fear, or the fear of offending persons to whom reverence is owed, especially parents, if threats, importunate prayers, etc., are added;

b) fear must be unjustly inflicted. But it can be unjust from the object or cause, as if the one instilling fear can exact nothing, or at least can in no way exact matrimony; and unjust from the mode alone, as if he cannot legitimately command matrimony in that way. Suppose the father of a deflowered virgin threatens death unless the deflowerer takes her as wife. Indeed, since now no action is given for exacting matrimony itself, every fear inflicted for obtaining matrimony must be called unjust;

c) no other option besides matrimony must have been available to the one suffering fear. This can happen even if the fear was inflicted for another end. Suppose an angry man who wishes to avenge some injury by atrocious revenge; and no other escape appears to a rich young man except the promise of taking the aggressor's daughter.

By what law force and grave fear invalidate matrimony is disputed. Many think this impediment is established by positive law alone, although it is altogether consonant with the wishes of nature. For he who consents from fear nevertheless truly furnishes internal consent; and he could have escaped the necessity itself by feigning consent. Yet others think it repugnant to natural law itself that consent unjustly coerced be sanctioned by the most grave obligation of perpetual matrimony. Grave reasons indeed are alleged for each side. Even one who in a general way admits that acts from grave and unjustly inflicted fear are valid, as c. 103, §1 itself declares, can without absurdity maintain an exception for this contract-sacrament, to which it is so necessary that it be done freely. Nevertheless we shall incline toward the former side. For if it were an impediment of natural law, human positive law seems not to have been going to define so rigorously the conditions of invalidating fear. For that these embrace the whole force of the natural impediment would be difficult to demonstrate.

— III. Presence of the contracting parties. By the positive law of the Code the celebration of matrimony between absent persons, or by letters, is excluded.

The contracting parties, however, can be present either personally or through a procurator (c. 1088). A special mandate is required, given in writing and subscribed as sponsals are, except that, in the present case, the pastor or local Ordinary can delegate a priest to subscribe. The competent Ordinary is the Ordinary of the place in which the mandate is made. If the mandating person does not know how to write, those things are to be observed which are prescribed when the party who promises marriage is ignorant of letters. If the mandating person has revoked the mandate before the marriage, or has fallen into insanity, the procurator, even ignorant of the matter, can no longer contract a valid matrimony for the mandating person. And for validity it is necessary that the procurator execute the mandate personally (c. 1089).

Besides, diocesan statutes concerning the procurator, if any exist, are to be observed. But, contrary to what Noldin, III, 611, thinks, this is not a condition of validity, since Ordinaries cannot fortify their prescriptions or prohibitions concerning matrimony with the sanction of nullity. Cerato, n. 85; Cappello, III, 619, agree.

Matrimony can also be contracted through an interpreter.

The pastor is not to assist at a marriage through a procurator or through an interpreter unless a just cause is present, there is no doubt concerning the authenticity of the mandate or concerning the trustworthiness of the interpreter, and, if time permits, the license of the Ordinary has been obtained.

Both the spouses themselves and the procurator are to express matrimonial consent by words; nor, if they can speak, can they licitly use equivalent signs.

Signs, however, suffice for validity. And thus the whole ceremony sufficiently manifests the consent to the witnesses, even if, because of a certain timidity, the bride does not pronounce in an intelligible tone the single affirmative word which the Roman Ritual demands. For the rest, the Ritual, tit. VII, c. 2, n. 2, did not require anything except some sensible sign expressing consent.

— IV. Conditioned matrimony. Like every contract, matrimony can be made conditionally. Yet this is proper to matrimony, that conditioned consent can always validly be revoked, and that another matrimony contracted absolutely before the condition arrives is valid.

Concerning the difficulty which arises from the efficacy of that illicit retraction before the condition has been purified, the Epitome, II, n. 381, III, can be consulted.

Concerning an appended condition the Code briefly proposes these things:

1. A future condition which is necessary, or impossible, or base, but not contrary to the substance of matrimony, is considered as not added.

Yet the intention of the parties must be observed, who could, through a necessary future condition, defer the very celebration of matrimony to the day on which it has been fulfilled, or clothe a will of not contracting with an impossible condition.

2. A future condition contrary to the substance of matrimony renders it invalid.

Here a condition deduced into the pact must be carefully distinguished from a condition simply conceived. Because, when the condition enters the pact itself, the expressed consent itself is not consent of a true matrimony; matrimony never has validity. For merely internal consent cannot be mutual. And therefore there was declared null the marriage of a non-Catholic, in whose celebration there was read the Gospel by which non-Catholics rely upon admitting perfect divorce in the case of adultery.

But where it has not been deduced into the pact, judgment must be made concerning the validity of matrimony according to the prevailing will.

Finally, a condition must be carefully distinguished from purposes, even mutual ones, of violating the laws of matrimony by adulterous or neo-Malthusian abuse. Indeed, most often those "conventions broadly so called" about avoiding offspring for the first year, etc., are not to be held as true conditions, nor do they impede the validity of matrimony, which was contracted absolutely.

Is a condition appended, indeed deduced into the pact, of preserving continence, repugnant to the substance of matrimony? Although several think that this is repugnant, nevertheless it seems it must be denied, because the right is one thing, the use of the right another. A pact of not using does not take away or impede the handing over of the right, which alone is essential (cf. Noldin, III, 613).

3. A licit future condition suspends the contract. When the condition arrives, matrimony is perfected, and is judged to have had its beginning from the day of the conditioned contract.

4. A condition concerning the past or the present makes matrimony valid or not, according as that which is subject to the condition exists or not (c. 1092, 4°).

— On the perseverance of consent. "Even if matrimony was invalidly entered by reason of an impediment, the consent furnished is presumed to persevere, until its revocation has been established" (c. 1093).

This must be carefully noted for the convalidation of matrimony invalidly celebrated.

— I. Consent is required to be true, mutual, which gives and accepts a perpetual and exclusive right over the body, in order to acts of themselves apt for the generation of offspring (c. 1081). It can be supplied by no human power. Therefore matrimony must be known at least as a stable society between persons of diverse sex, and this for procreating children, by some common work.

It must besides be immune from substantial error, i.e., here, from error concerning the individual identity of the person with whom one contracts; concerning a quality which has been expressly required as a condition sine qua non; concerning servile condition, if the other contracting party is a free person.

It must also be immune from grave fear unjustly inflicted, at least as regards the mode, and "from which, that one may free himself, he is compelled to choose matrimony."

II. It can be made under a licit future condition, and then it suspends the contract, which, once the condition is fulfilled, passes into the absolute. Meanwhile, however, the condition being disregarded, one validly marries another.

A future condition which is necessary or impossible or base but not contrary to the substance of matrimony is considered as not added. If it is future and contrary to the substance of matrimony (offspring, fidelity, or sacrament), it renders it invalid, when it has been deduced into the pact, or prevails over the will of matrimony.

Purposes, even mutual ones, of violating matrimonial duties must be carefully distinguished from a condition.

III. Consent is not necessarily impeded by knowledge of nullity; and once given it is presumed to persevere, until it has been revoked.

IV. Consent must be given between persons present, and therefore matrimony by letters is excluded, but not matrimony through a procurator or through an interpreter. But if time permits, the Ordinary must be consulted. And for liceity consent must be expressed by words.