Scholion. On Conditional Matrimony

Of the conditions which can be added to the matrimonial contract, some are not repugnant to the substance of matrimony,¹ others are repugnant to it as restricting the rights essentially annexed to matrimony.² We shall speak of each separately; and after these have been treated, we shall add certain things about matrimony under mode, cause, or demonstration.

¹ I contract with you if you are a virgin.

² I contract with you if you abstain from intercourse.

I. Conditions not repugnant to the substance of matrimony. 1. Matrimony under a condition concerning the past¹ or the present² is valid or not valid according as the condition has been fulfilled or not fulfilled (canon 1092, 4°). But the licit use of matrimony is suspended until there is certainty about the fulfillment (St. Alphonsus VI, 890).

2. Matrimony under a condition concerning the future is to be judged thus:

a) If the condition is concerning the future necessary³, when it is known as such, the matrimony is valid at once, unless the contracting parties intend to suspend the matrimony until the event of the condition. In the external forum this condition is held as not added (canon 1092, 1°), that is, the matrimony is judged valid at once unless the suspensive intention is proved (St. Alphonsus VI, 891).

b) If the condition is concerning the future impossible,⁴ when it is known as such, the matrimony is null if it is seriously placed. In the external forum this condition likewise is held as not added (canon 1092, 1°), or the contracting party is presumed to have willed matrimony until the contrary is proved (St. Alphonsus VI, 891).

c) If the condition is concerning the future contingent, the following must be said:

α) If the condition is licit,⁵ the validity of the matrimony is suspended (canon 1092, 3°; St. Alphonsus VI, 892).

β) If the condition is base⁶ and is seriously placed, according to many the matrimony is simply null, but more probably only the validity is suspended (vol. I, n. 849). In the external forum this condition too is held as not added (canon 1092, 1°; St. Alphonsus VI, 891).

¹ I contract with you if you have done this or that.

² I contract with you if you are noble.

³ I contract with you if the sun will rise tomorrow.

⁴ I contract with you if you extinguish the sun.

⁵ I contract with you if the parents have died.

⁶ I contract with you if you have admitted intercourse.

II. Conditions repugnant to the substance of matrimony. Concerning these canon 1092, 2° says: "A condition once placed and not revoked, if it concerns the future against the substance of matrimony, renders it invalid." Gregory IX hands down the same doctrine more fully: "If conditions against the substance of marriage are inserted, for example if one says to the other: I contract with you, if you avoid generation of offspring; or: until I find another richer in honor or means; or: if for gain you hand yourself over to be adulterated, the matrimonial contract, however favorable it may be, lacks effect."¹ Therefore:

1. Conditions against the substance of matrimony are those which are repugnant to the object of the matrimonial contract, that is:

a) Either to the right over the body of the consort, in other words, to the right to acts of themselves apt for generation, as if you say: I contract with you if you abstain from intercourse; if you perform it onanistically.

b) Or to the exclusive right over the body of the consort, or to the unity of matrimony, as if you say: I contract with you if you hand yourself over to be adulterated for gain.

c) Or to the perpetual right over the body of the consort, or to the indissolubility of matrimony, as if you say: I contract with you if, after one or another offspring has been procreated, you abstain from intercourse, or from intercourse rightly performed; or: We contract until domestic life is disturbed or until we marry others, and similar things (St. Alphonsus VI, 881, 882).

Corollary I. Conditions which are opposed to the moral or religious good of offspring are not against the substance of matrimony, and therefore do not invalidate it; as if you say: I contract with you if you educate the offspring in unbelief, in heresy. The reason for the assertion is that the said condition is not repugnant to the object of the matrimonial contract. Add that the Church has indeed reproved marriages of this kind, but has never declared them invalid. Finally, if the contrary opinion were admitted, even marriages contracted under the condition of educating offspring in other delicts would be invalid; and so far as I know no one has admitted this.

Corollary II. Nor are conditions which are opposed to the physical good of offspring against the substance of matrimony, as if you say: I contract with you if you procure an abortion, if you cast away or kill the child once born. The reason again is that not even a condition of this kind is repugnant to the object of the contract.

2. The conditions set forth under 1 are repugnant to the substance of matrimony if they truly remove or diminish the right itself to arise from the matrimonial contract, or if they are placed as to be fulfilled from justice, or if they are brought into a pact, or at least are so intended that the contracting party positively intends to contract in such a way and not otherwise. The reason is that the said conditions understood thus prevent consent to the object of the matrimonial contract (n. 700).

If the aforesaid conditions are not brought into a pact, and neither party in another way restricts consent to the object of the matrimonial contract, the matrimony is valid. Therefore the following do not stand in the way of validity:

a) A mere will or purpose, or even some agreement without a pact, whether of abstaining from intercourse, or of performing it onanistically, or of procreating one or another offspring and abusing matrimony otherwise, or of abstaining from intercourse rightly performed until they have arrived at better fortune, etc.

b) The mere purpose of preserving perpetual continence in matrimony.

c) A simple promise, by which the contracting parties bind themselves from fidelity alone to preserve continence.

d) A vow of preserving chastity, by which either or both parties bind themselves, or attempt to bind themselves, to God alone.

Question 1. Whether a condition made by pact of preserving perpetual continence is repugnant to the substance of matrimony and therefore invalidates it?

Response. Some affirm, because matrimony essentially hands over the right to the use of the body of the consort. But this right is excluded by the aforesaid pact. Therefore such a pact destroys the object of the matrimonial contract.²

Others judge that matrimony of this kind can be valid, because that pact can be so intended that it leaves the radical or bound right, excluding only the expedit right to the use of the body. But, they say, the former alone, not the latter, belongs to the substance of matrimony; and they think this must be drawn from the fact that, while the conjugal bond remains, the expedit right is lost through adultery, or even through a pact of preserving chastity entered after matrimony has been contracted (cf. St. Alphonsus VI, 881, 1°, 882, 1°).

Question 2. Whether a condition made by pact of abstaining from intercourse for a time, for example until they have arrived at better fortune, or of having intercourse only when conception is less probable, is repugnant to the substance of matrimony and therefore invalidates it?

Response. Speaking theoretically, one can respond what was responded to the preceding question. But in practice it is to be observed: 1° in the case in which there is a true pact, and it, as commonly happens, is not added from a motive of virtue, the matrimony is invalid, since in practice both the expedit and the radical right are limited.

Note. "Pastors should never admit these conditional marriages without a most urgent cause, on account of the many inconveniences and difficulties which can afterwards occur against their validity" (St. Alphonsus VI, 892).

¹ C. ult. De conditionibus appositis in desponsatione vel in aliis contractibus; cf. Collectanea de Propaganda Fide, n. 222, n. 100, 1327 to doubt 3, 1465.

² Some undeservedly try to prove this opinion from the fact that the Blessed Virgin Mary, who had vowed perpetual virginity, in order licitly to contract with St. Joseph, had to enter a pact of preserving chastity. For to contract licitly it sufficed that she knew certainly, whether naturally or by revelation, for example concerning virginity never to be lost, that her spouse would not use matrimony.

III. Matrimony entered under a mode is valid. For a mode supposes a contract complete in its being, to which it is added. Nevertheless matrimony is invalid: 1° if the mode, or rather quasi-mode, added is repugnant to the substance of matrimony and is brought into a pact, as: "I contract with you, but you must abstain from right intercourse"; 2° if both parties or either party positively intends that he or she be bound only in that way, and not otherwise. The reason is that then something substantial of the object is excluded, so that consent to it is lacking. But in these cases it is not a question of a mode properly so called, since, as was said, it supposes a completed contract.

Note. Matrimonial consent once furnished perseveres until it is revoked; and it is presumed to persevere until its revocation is established. This holds even if the matrimony was entered invalidly by reason of an impediment (canon 1093).