Title VI: On the Effects of Marriage

— I. General matters. 1. Besides the effect of inducing a bond by its nature perpetual and exclusive; of conferring grace on Christian spouses who place no obstacle; of giving to each spouse, and this from the beginning of the marriage, an equal right and office toward the acts proper to conjugal life, marriage, unless something else has been provided by special law, makes the wife, concerning canonical effects, a participant in the status of the husband (cc. 1110-1112).

Before the Code, a spouse was granted a two-month time, during which he or she could refuse the conjugal act, for deliberating about entrance into religion. - A wife does not fully participate in the status of the husband in morganatic marriages. But this is demonstrated more by civil than by canonical effects. A canonical effect could be had if in a certain monastery none are received except daughters of noble condition.

2. Then the Code, c. 1113, inculcates upon parents the most grave obligation of taking care according to their powers for the education of offspring, "both religious and moral, and physical and civil; and also of providing for their temporal good." Finally it treats of the effect of legitimacy and legitimation.

— II. Concerning the effect of legitimacy. 1. Canonically legitimate, and not only legitimated, are held to be children either conceived or born from a valid or putative marriage. Those who are merely born from marriage but conceived before the marriage would not be legitimate of themselves; but by benefit of the law they are held as such.

One exception is made. He who, after a marriage has been validly contracted, receives sacred order in the Latin Church or has made solemn religious profession, is prohibited from every use of marriage: a son who has been conceived in this time, although conceived from marriage, will not have been canonically legitimate (c. 1114).

2. Paternity, which is usually without direct demonstration, is proved by presumption. Hence the prior, "more burdensome presumption": "The father is he whom just nuptials demonstrate" (c. 1116, §1); i.e., a son who is conceived during marriage is imputed to the husband. The Code, however, admits evident contrary arguments. This presumption is completed by this other one: children who have been born at least after six months from the day of the celebrated marriage, or within ten months from the day of dissolved conjugal life, are presumed legitimate (c. 1116, §2). They are presumed legitimate, i.e., they are presumed conceived during marriage.

The explanation is confirmed by agreement with articles 159 and 160 of the Italian Code. But no presumption of law favors him who was born from marriage before six months, so that he be judged the son of the husband. But if, in the very joining of marriage, the father acknowledged the son, he, from c. 1114, will be numbered among the legitimate. - Exposed children are to be held as legitimate, since "the judge in doubt ought to be inclined toward the goods and advantages of the offspring" (Benedict XIV, Redditae, December 19, 1741, §4).

— III. Concerning legitimation. 1. From c. 1116 offspring is made legitimate through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even not consummated, provided that at the time either of conception, or of pregnancy, or of birth, the parents were able (and did not merely think themselves such) to contract marriage between themselves. Therefore it is enough that at one of these moments they were able. Therefore legitimate will become: the son of consanguines who were dispensed during the time of pregnancy; the son conceived from adultery, if, before birth, the marriage which had been injuriously violated had been dissolved, and the parents then celebrated just nuptials.

2. This legitimation perfectly equates sons to legitimate ones, unless something else has expressly been provided (c. 1117). Something else is expressly provided in cc. 232, §2, n. 1; 331, §1, n. 1; 320, §2: they cannot be chosen as Cardinal, bishop, abbot, or prelate nullius.

3. Another mode of legitimating, i.e., rescript of the prince, or disposition of law, must here merely be recalled. This rescript is conceded through the Sacred Congregation of the Sacraments.

— I. Besides grace, marriage gives to each spouse, from the beginning of marriage, an equal right and office toward the proper acts of conjugal life, and makes the wife of herself a participant in the status of the husband.

But it obliges parents to fulfill the offices of piety toward the offspring.

II. Legitimate are children conceived or born from a valid or putative marriage. Except if, after the marriage has been contracted, they were conceived at a time when, in the Latin Church, the parent was prohibited from the conjugal act by sacred order or solemn religious profession. By presumption, a son conceived during marriage is imputed to the husband. But he is presumed conceived during marriage who was born at least six months after the marriage was contracted, or within ten months from dissolved conjugal life.

III. Through subsequent marriage of the parents, a son is legitimated, provided that at the time either of conception, or of pregnancy, or of birth, the parties were able to contract nuptials between themselves. Those thus legitimated are perfectly equated to legitimate ones. Yet they cannot be chosen as Cardinal, Bishop, Abbot, or Prelate Nullius.

Another legitimation is made by rescript of the Holy See.