Chapter II. Fuller Exposition

The fuller exposition is contained chiefly in the development of the properties of matrimonial consent itself. Now on each side there is required consent that is true, fully deliberate, sufficiently free from ignorance, error, force, and fear, external, made known to the other party, and simultaneous. It is said:

I. True or internal, in other words, there is required an act of the will of contracting matrimony (cf. canons 1081 and 1086).

In the internal forum, one asserting that he or she consented only fictitiously must be believed according to the truthfulness of the person. In the external forum, fiction is not admitted unless it is proved (canon 1086, § 1); and this commonly will be very difficult.

One who consents fictitiously sins against justice unless he is unjustly forced to matrimony; but with sufficient probability he does not commit sacrilege unless there is abuse of the sacred rite. The reason is that, because of defect of consent, the sacrament which could be violated is lacking (St. Alphonsus VI, 62). But he is bound: 1° to abstain from those things which are licit only for spouses; 2° not to contract matrimony with another before an ecclesiastical judge has declared according to the norm prescribed by law that the prior nuptials were null; 3° to repair the damage caused by the fiction, unless someone has been unjustly forced to matrimony. Now commonly he cannot repair the damage except by now consenting truly. The reason is that the deceived party commonly will not be able to enter another matrimony, because the fiction, and therefore the nullity of the prior nuptials, commonly will not be able to be proved. And from this very fact another reason for now consenting truly is added, namely the danger of incontinence which otherwise would arise from a cohabitation to be prolonged. Finally, if perhaps offspring has been received, the good of this offspring also requires matrimony. Nevertheless, one who consented fictitiously is excused from furnishing true consent: 1° if he was unjustly forced to matrimony, in which case he is not even bound to repair the damage; 2° if the other party also consented fictitiously, or if that party renounced his or her right; 3° if much greater damages are foreseen as about to arise from a true matrimony, in which case the damage must be repaired in another way (St. Alphonsus VI, 887, 1113).

II. Fully deliberate; as was said about contracts generally (vol. I, n. 834). Hence a matrimony contracted by one insane, sleeping, or plainly drunk would be invalid. With regard to those half-drunk and those more or less foolish, the validity will easily be doubtful. The insane who have lucid intervals are sometimes, at that time, sufficiently in possession of reason; nevertheless, as St. Thomas teaches (Supplement, q. 58, a. 2), "it is not safe that he contract matrimony, because he would not know how to educate offspring." Sometimes, however, matrimony of this kind is rightly commended, for example for legitimating offspring. Meanwhile this kind of matrimony will more easily be advised where the man is insane in this way than where the woman is, on account of the greater danger to offspring on the part of an insane woman. If each is insane in this way, matrimony between them can scarcely, or hardly at all, be licit. If some just cause for admitting such an insane person to matrimony seems to be present, the matter will prudently be brought to the Ordinary.¹

¹ Thus approximately Dens, De matrimonio, n. 97.

III. Sufficiently free from ignorance; concerning which observe that ignorance differs from error. Ignorance is the mere defect of knowledge, and does not import an opinion or judgment; error, however, imports an opinion or judgment, and a false one. Now ignorance of the matrimonial object invalidates consent, because the will is not borne toward the unknown. Hence:

Corollary I. Those who are ignorant that matrimony is a permanent society between man and woman for procreating children contract invalidly (canon 1082, § 1). This ignorance is not presumed after puberty (canon 1082, § 2). It is said permanent; by this word indissolubility properly so called, or the essential property of matrimony, is not understood; otherwise the Code would also make mention of other equally essential properties, for example unity. But there is understood some permanence which must last more or less, and is supposed in every society.

Corollary II. Those who are ignorant that the procreation of offspring is obtained by means of bodily union seem to contract invalidly, because there is ignorance of the object, that is, of the right over the body in order to procreating children.

Corollary III. Those who are ignorant only of the mode of union or intercourse have sufficient knowledge of the object, because the said ignorance does not prevent them, by explicitly handing over the right over the body in order to procreation, from at least implicitly handing over the right to acts of themselves apt for generation. Thus also the Sacred Congregation of the Council.¹ The aforesaid things hold even if someone, once the truth was known, would not have entered matrimony, since the question is not what someone would have done, but what he did.

¹ March 15, 1856; December 18, 1869.

IV. Sufficiently free from error. Error can regard the object of matrimony or its properties, the person or that person's qualities, and finally the value of the matrimony. Now:

1. Error concerning the object of matrimony invalidates the matrimonial contract, because then the will is borne toward an object diverse from the object of the matrimonial contract, so that consent to the object of matrimony is lacking.

Corollary I. The following contract invalidly: 1° those who judge that matrimony is not ordered to procreating children; 2° those who judge that children are procreated in a way other than by bodily union, for example by union of minds.

Corollary II. Those who err only concerning the mode of bodily union contract validly.

2. Simple error concerning the unity or dissolubility of matrimony, or its sacramental dignity, even if it gives cause to the contract, does not vitiate consent (canon 1084). The reason is that in the case there is not error concerning the object of the matrimonial contract taken simply, but only concerning that which in the object is quasi-secondary or consequent; in other words, one does not err concerning the right over the body of the consort, but either concerning the exclusive or perpetual right, or concerning the dignity intrinsic to matrimonial consent. But such error does not prevent the one consenting to the right over the body from consenting at least implicitly to the exclusive and perpetual right, and to the dignity intrinsic to the consent (cf. St. Thomas, Supplement, q. 51, a. 2, ad 2). It was said:

a) Simple error; for one contracts invalidly if either or both parties by a positive act of the will exclude some essential property of matrimony (canon 1086, § 2), or, if it is a question of baptized persons, the sacramentality of matrimony. Hence the Holy See has several times declared invalid the marriages of those heretics who, with the rite by which they enter nuptials considered, explicitly or implicitly stipulate that matrimony will be dissolved in the case of adultery.¹

b) Even if it gives cause to the contract; for the question is only what someone did, not what he would have done if the error had been absent.

3. Error concerning the person renders matrimony invalid (canon 1083, § 1); and this holds whether the error is invincible or vincible, antecedent or giving cause to the contract, or merely concomitant. The reason is that in the case consent is borne toward an object diverse from the object of the present contract: for consent regards the right over the body, for example, of Peter, while the object of the present contract is the right over the body, for example, of Paul. Therefore consent to the object of this contract is lacking.

4. Error concerning a quality² of a person commonly does not invalidate matrimony; and this holds even if the error gave cause to the contract and was induced by fraud. The reason is that such error does not prevent consent to the substance of the object. Canon 1083, § 2 is consonant.

I said commonly does not invalidate matrimony; for it invalidates it:

a) If error of quality redounds into error of person (canon 1083, § 2, 1°). But this has place when the quality about which there is error distinguishes the person from every other, and the contracting party determines for himself the person with whom he intends to contract precisely through that quality; as if someone intends to contract with the first-born daughter of a prince, and externally contracts with another whom he erroneously thinks to be the first-born (St. Alphonsus VI, 1010, 1013, 1015).

b) If a free person contracts matrimony with a person whom he thinks free, while on the contrary that person is a slave, with slavery properly so called. Thus by force of positive ecclesiastical law (canon 1083, § 2, 2°). But slavery properly so called is required, that is, one which extends so far that a human being can be bought and sold like an irrational animal, according to works (St. Alphonsus VI, 1017, 1018; vol. I, p. 537).

Question. Whether the matrimony is valid if a free unbelieving person, from error, married a faithful person who is a slave?

Response. Many deny, because the law does not distinguish. Others affirm, because the impediment in the case seems to affect no party: not the unbelieving party, because he or she is not subject to the Church; nor the faithful party, since the impediment seems to have been constituted in favor only of the free party who errs.

5. Finally, knowledge or opinion of the nullity of the matrimony does not necessarily exclude matrimonial consent (canon 1085). The reason is that such knowledge or opinion does not necessarily prevent someone, as far as is from himself, from having the will to contract. If the case occurs, one must see whether the contracting party in fact, as far as was from himself, intended matrimony. But if that had place, the matrimony was valid at once if the opinion was false; if it was true, the matrimony can afterwards be convalidated. But if the contracting party, with knowledge or opinion of nullity, intends concubinage or a simple civil ceremony, consent is lacking. I said intends, because it does not stand in the way of validity that someone merely judges³ it to be concubinage or a mere ceremony. In practice one more easily doubts about the intention of contracting true matrimony if it is a question of well-instructed Catholics who for some reason contract merely civilly, see a mere ceremony in a matrimony of this kind, and therefore more easily do not seek matrimony properly so called but only legal convenience. Indifferent and not well-instructed Catholics are more easily presumed to contract validly; a fortiori non-Catholics.⁴

¹ Holy Office, April 6, 1843 (Collectanea, n. 965).

² If the one erring binds his consent to the quality as to a condition without which not, the matrimony is certainly invalid; not, however, by reason of error, but on account of the lacking condition.

³ Sacred Congregation of Propaganda Fide, October 1, 1785 (Collectanea, n. 580).

⁴ Holy Office, July 2, 1897, to the Archbishop of Cologne.

V. Sufficiently free from force and fear. Concerning this canon 1087 says: "Matrimony entered by reason of force or grave fear inflicted from without and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, is also invalid. No other fear, even if it gives cause to the contract, carries with it the nullity of matrimony." Therefore:

1. Absolute force renders matrimony invalid; since in the case the external act is posited under physical coercion, with the mind resisting completely, consent of the will is lacking. With regard to force or violence in a qualified sense (vol. I, n. 28), the things said about the full deliberation required, and the things to be said about fear, suffice.

2. With regard to fear,¹ these things hold:

a) Grave fear, inflicted from without and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, dirimently impedes this matrimony (canon 1087, § 1), at least by canon law. It is said:

α) Grave fear; either absolutely or relatively to the person on whom the fear has been inflicted. It makes no difference whether someone fears a grave evil for himself or for those intimately joined to him.

β) Inflicted from without; that is, by a free cause. Hence, for example, a matrimony entered from fear lest life otherwise be hard would be valid.

γ) Inflicted unjustly. Now fear is certainly inflicted unjustly if someone uses an unjust means, or by an unjust means extorts matrimony whether owed or not owed, or, as others state the same thing, if the one inflicting fear does not have the right of executing what he threatens; as if a father, who catches a young man acting basely with his daughter, threatens him with death unless he marries her.

It is disputed whether fear is inflicted unjustly if someone by a means not unjust in itself extorts matrimony not owed, or if the one inflicting fear indeed has the right of executing what he threatens, but does not have a right to matrimony; as if a girl should threaten a young homicidal man that she will denounce him to the judge unless he marries her, or if a physician, who is bound only from charity to undertake the care of a sick girl, denies his help unless the girl marries him.

Response. Some affirm, because one acts unjustly who through grave fear tries to obtain that to which he has no right, for example matrimony. Others deny, because one does not act unjustly who offers to another a means, for example the choice of matrimony, by which he may avoid a damage which can be inflicted on him without injustice. But it seems one must distinguish thus: If the avoidance of the imminent evil, for example denunciation to the judge or denial of medical care, is esteemed to be of as much value as the choice of matrimony, the answer seems to have to be denied, because an unjust pact is not had. Otherwise, if the avoidance of the imminent evil is not worth so much, then the pact is unjust (cf. St. Alphonsus VI, 1051, 1053).

δ) From which, in order that one may free himself, he is compelled to choose matrimony. These things are certainly verified, and therefore the matrimony is certainly invalidated, if fear is inflicted for extorting matrimony with the one inflicting the fear. Likewise it seems invalid if fear is inflicted for extorting matrimony with someone other than the one inflicting the fear, because there is in reality coercion to matrimony itself.

But it is controverted whether it is necessary that fear be inflicted for extorting matrimony, or whether the intention of matrimony on the part of the one fearing the evil suffices, who in matrimony sees a necessary remedy against a greater evil to be avoided. Some deny that fear inflicted for extorting matrimony is required, and draw the reason from the tenor of the Code, "from which in order that one, etc." But the affirmative answer seems to have to be given, because before the Code it was taught with sufficient commonness that fear inflicted for extorting matrimony was required. Now the Code is not presumed to have departed from the old disposition unless the tenor of the law sufficiently signifies this; and the latter does not have place, since the canon can well be harmonized with the old disposition and be understood thus: "from which, in order that one may free himself, he is compelled to choose matrimony," namely because the fear is inflicted precisely for extorting matrimony. If fear is inflicted for another end, one is not so properly compelled to the choice of matrimony (St. Alphonsus VI, 1049).

ε) At least by canon law. It is disputed whether also by natural law, so that the described fear would also invalidate the marriages of unbelievers. Some deny, because fear does not impede consent simply voluntary into the contract. Others affirm, because a contract caused by gravely injurious fear and irrescindable, and therefore such that the grave injury which was the cause of the contract cannot be repaired, seems to have to be excluded. But if the prior opinion is admitted, such a contract would be had, namely matrimony, since it cannot be rescinded. St. Thomas admits the latter opinion (Supplement, q. 47, a. 3; cf. St. Alphonsus VI, 1054; Homo Apostolicus, tr. 18, n. 64).

Objection. If the latter opinion is admitted, even fear not inflicted for extorting matrimony would invalidate it, because such fear would also involve an injury which could no longer be repaired.

Response. Fear not inflicted for extorting matrimony indeed involves an injury, but one independent of matrimony, of which it was only the occasion, not the cause; but an injury independent of matrimony can be repaired even if the matrimony is valid and can no longer be rescinded.

Question. Whether, with canon law alone considered, matrimony is valid if the party who suffered fear is an unbeliever?

Response. Many deny, because the law does not distinguish. Others affirm, because the impediment in the case seems to affect no party: not the unbelieving party, because he or she is not subject to the Church; nor the faithful party, since the impediment seems to have been constituted in favor only of the party who suffered fear.

With natural law considered, the said matrimony is held by many to be invalid, according to the things set forth.

b) No other fear, for example light fear, or grave fear but justly inflicted, carries with it the nullity of matrimony, even if it gives cause to the contract (canon 1087, § 2). This is clear if the speech is about fear justly inflicted; if it is a question of fear lightly unjust, it is deduced from the fact that, on the one hand, fear does not impede simply voluntary consent, and on the other hand the reparation of a light injury is not to be valued so highly that on account of it, if excluded, the contract must be called invalid (St. Alphonsus VI, 1055). Furthermore note:

α) One who through grave and unjust fear forces another to matrimony sins gravely both against justice and, on account of the nullity of the sacrament, against religion. Therefore he is bound to repair the injury, even, if it cannot be repaired in another way, by convalidating the matrimony, at the will of the one who suffered fear (St. Alphonsus VI, 1057).

β) The Church never dispenses in the impediment of fear, because the dispensation would confirm the injury inflicted on the party who suffered fear, and would bring it about that the one inflicting fear would receive advantage from his crime.

How matrimony contracted from fear can be convalidated will be explained later.

¹ What fear is and in how many ways it is distinguished, see vol. I, nn. 838 and 839.

VI. External or manifest (canon 1081, § 1); this quality is required both because matrimony is a contract (vol. I, n. 834), and so that it may be a sacrament, for a sacrament does not subsist without a sensible sign. If someone consented externally but not internally, to revalidate the matrimony it suffices afterwards to supply internal consent. Moreover, for validity it does not matter whether consent is expressed by words or by another sign, for example by a nod. Indeed, of itself even silence, for example on the part of the bride, with the circumstances considered, can be a manifestation of consent.

As to liceity, however, from the precept of the Church it is required that "the spouses express matrimonial consent by words; nor is it licit for them to use equivalent signs if they can speak" (canon 1088, § 2). This obligation seems grave.

VII. Made known to the other party; and indeed by the contracting party or in his name, as was explained in vol. I, n. 834.

VIII. Simultaneous, because otherwise they do not truly consent into one. Nevertheless it suffices that one consent while the consent of the other persists (vol. I, n. 834).

Corollary I. Matrimony, like other contracts, can also be contracted between absent persons, for example through a mere messenger, by letters, by means of telephone or telegraph. But this now cannot be done by those who are bound by the ecclesiastical form, for "to contract matrimony validly it is necessary that the contracting parties be present either personally or through a procurator" (canon 1088, § 1).

Corollary II. Matrimony, just like other contracts, can also be entered through a procurator (the cited canon). But from canon 1089, without prejudice to diocesan statutes added on this matter,¹ for matrimony to be validly entered through a procurator, it is required:

1° That the procurator have a special mandate to contract with a certain person (§ 1).

2° That the mandate be signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses. If the mandator does not know how to write, this is to be noted in the mandate itself and another witness is to be added, who also signs the writing; otherwise the mandate is invalid (§ 2).

3° That, before the procurator has contracted in the name of the mandator, the latter has not revoked the mandate nor fallen into insanity; because then the matrimony is invalid, although either the procurator or the other contracting party may have been ignorant of these things (§ 3).

4° That the procurator perform his office personally (§ 4). Hence the procurator cannot delegate another, nor, as it seems, can this faculty be granted to him by the mandator.

Note. When matrimony is to be contracted through a procurator or through an interpreter, the pastor is not to assist unless there is a just cause and it is in no way licit to doubt about the authenticity of the mandate or the trustworthiness of the interpreter, after having obtained, if time permits, the license of the Ordinary (canon 1091).

¹ Statutes added on this matter do not regard validity.