Civil Marriage

That this sentence is altogether illicit is plain from several Decisions of the S. Penitentiary and of the S. U. Inquisition concerning this matter. It is asked whether it is intrinsically illicit? It must altogether be responded affirmatively.

For first, if there is any law which contains something against natural and divine law, it is certainly the law of divorce as to the bond itself of matrimony. But "if the writing of a law contains something against natural law, it is unjust and does not have the force of obliging.... And therefore one must not judge according to such laws," St. Thomas, 2.2, q. 60, a. 6, ad 1; otherwise judgment would be made according to injustice and against natural and divine law, which certainly is intrinsically illicit. Nor certainly is it less intrinsically illicit in this matter of matrimony than in any other matter of temporal good and property for a judge to give sentence against natural and divine law.

It is intrinsically illicit for the parties to seek a sentence against natural and divine law. Consequently it is intrinsically illicit for an advocate to seek and patronize this same sentence; for the advocate holds himself on the part of the client and represents the client. Therefore much more is it intrinsically illicit to give a sentence against natural and divine law. But again, a sentence of divorce against the bond of matrimony, indissoluble by natural and divine law, is a sentence against the same natural and divine law.

The law itself of divorce is intrinsically illicit and iniquitous. Therefore the sentence of divorce is still more intrinsically illicit and iniquitous. Surely law is of itself quasi speculative-practical. Insofar as it is considered speculatively, the enunciation of a law that is illicit and iniquitous is not illicit, but false and absurd. But insofar as it is inspected practically, then indeed it is illicit and evil. Moreover the sentence of the judge is what constitutes it de facto practical, or practical-practical. "The sentence of a judge is, as it were, a certain particular law in some particular fact." St. Thomas, 2.2, q. 67, a. 1, c.

This intrinsic malice is evidently confirmed from various Decisions of the S. U. Inquisition; for such a sentence is said to deflect from the principles of natural law and to be repugnant to divine law.

Nor indeed do the reasons of the adversaries prove anything. They say first that that sentence is not intrinsically evil if it is considered in itself and by reason of itself, namely by reason of the act itself: because the judge does nothing other than declare the law in a particular case. But it is not intrinsically evil to declare that which an iniquitous law contains. But this reason has no force at all. For the judge does not declare the law in just any way, but declares it authentically and authoritatively, defining or determining the just, or the right, in a particular case. St. Thomas, 2.2, q. 60, a. 1, c. It is intrinsically evil authoritatively and juridically to declare, not indeed speculatively, but altogether practically, that that is just which in itself is unjust, that that is right which in itself is injury. Men, Aristotle says, and after Aristotle St. Thomas, l.c., flee to the judge as to a certain animated justice. In the present case the judge is nothing except animated injustice. By this reason brought forward by the adversaries, it would also be proved that judges under the Roman Emperors could licitly have condemned Christians, because in reality they were doing nothing other than merely declaring, in a particular case, the edicts of the Emperors.

Hence another reason is dissolved, namely that in the case about which there is question, the cooperation of the judge with sin is only material and by no means of itself efficacious, which, a grave cause intervening, is lawful. The new matrimony to be entered depends only on the will of the parties, who can abuse that sentence. Although the cooperation of the judge is only material, nevertheless the yielding of his own office, which is brought forward as an excusing cause, is certainly not a sufficient cause for giving honorable color to so great a damage, which comes both upon families and upon society itself from that most impious law of divorce, as is established by experience itself. But the cooperation of the judge is by its nature formal and of itself efficacious, although the second act of the new matrimony, or adultery, depends on the free will itself of the parties. It is by its nature formal, because all that it is tends toward making a faculty on the part of the law of flying to other nuptials, which thing is certainly most iniquitous in itself. It is by its nature efficacious, because the aforesaid faculty of marrying on the part of the law, in a particular case and in a determined person, is only the effect of the sentence of the judge. And if, the sentence of divorce having been pronounced, one spouse flies de facto to other nuptials, the other spouse objecting and pleading exception, the latter objects and pleads exception in vain; by the law itself and by the very sentence of the judge the other spouse is protected and fortified in his adultery. "Judgment," says the Angelic Doctor, 2.2, q. 60, a. 6, ad 1, "imports a certain impulsion, and therefore it is unjust that someone be judged by him who does not have public authority." And the same Angelic Doctor, l.c., q. 67, a. 1, says: "The sentence of a judge is, as it were, a certain particular law in some particular fact. And therefore, just as a general law ought to have coercive force..., so also the sentence of a judge ought to have coercive force, through which each party is constrained to observe the sentence of the judge; otherwise the judgment would not be efficacious." It matters little or nothing that adultery de facto depends on the free will of the parties. If a judge were to make a faculty for iniquitous and impious men of killing Clerics and despoiling Churches, would he not cooperate formally and efficaciously, although in act and de facto, because the judge does not command and compel to that killing and despoiling, the aforesaid killing and despoiling would depend on the free choice of those criminal men? Finally, in our case it is so true that by the law and the sentence of the judge there is made a faculty and civil right of flying to other nuptials, that, when these have been contracted, that right is now acquired by the new spouse; so that, during that new marriage, return to one's own and true spouse is prohibited; and the new spouse will always be able juridically to invoke the favor of the law conceded to himself.

n. 8.

Nor indeed does it have force to insist by saying that the judge can privately warn the parties concerning natural and divine law; indeed that in the Consideranda preceding the Sentence he can very well assert the Catholic doctrine concerning this matter. Whence it is that his Sentence in reality will be nothing except a mere exterior ceremony, and a certain solemnity, or rather a mere formality without any force and strength. A prior admonition privately made by the judge, even an expression of the doctrine of the Church in the Consideranda preceding the Sentence, does not change the intrinsic nature of the sentence; indeed it shows more the iniquity of this, against which the judge wishes to protest. That protest and admonition privately made is of a private person. The sentence is of a juridical and public person. In a judge of this sort there is had a true practical contradiction. For as judge he sanctions by his sentence that very thing which as a Christian faithful person he affirms to be against natural and divine law. The contradiction grows, as is plain, if that protest and admonition is placed in the very Consideranda preceding the sentence, which always remains an authentic, juridical, authoritative definition or determination not of the just or of right, but of the unjust and of injury. By this very sentence of his the judge openly confesses that he is not an interpreter of justice, but an interpreter of injustice by public authority. St. Thomas, 2.2, q. 60, aa. 5, 6; q. 67, aa. 1-2. And this certainly is intrinsically illicit.

n. 9.

Nor again does it have force to insist that that Sentence of the Judge is nothing except a mere permission. And as liberty of cults is permitted, so also Divorce can be permitted. This reasoning, if it proves anything, proves also that the Law itself of Divorce is not intrinsically evil. Indeed this is what it properly and directly proves. For the judge, as the adversaries themselves assert, does nothing other than merely declare and apply the law in a particular case. Therefore either they must say that that Law, as it is de facto, is not intrinsically evil, or they must confess that the Sentence of the judge also is intrinsically evil. Besides, if the action of the Syndic who pronounces the dissolution of the bond of true matrimony, or the validity of a second marriage, notwithstanding the first true and legitimate matrimony, is intrinsically evil, as even the adversaries themselves affirm, how is the Sentence of the judge not intrinsically evil, which gives that faculty to the Syndic, and to the parties the right of demanding that declaration from the Syndic? Can the execution of some action be intrinsically illicit without either the ratification, or the mandate, or the right conferred for that action being intrinsically illicit? Then the parity of liberty of worship would have force, when, as for liberty of cults, so for divorce the law would be a mere permission, i.e., a negative permission, namely insofar as, although the Legislator held divorce as a crime, he nevertheless tolerated it and did not punish it in certain determined circumstances, lest graver damage in detriment of the Republic should thence follow. Cf. St. Thomas, 2.2, q. 10, a. 11. But the law of divorce, as it is had de facto, is indeed a permission of divorce, but a positive permission, authorizing divorce, giving a civil right of divorce, and making power of flying to other nuptials before the civil magistrate himself, who holds the new marriage as ratified.

n. 10.

Others, who sustain the contrary manner of opinion, bring forward another reason. They say that the aforesaid Sentence is not intrinsically evil if its object is considered; acts are specified from the object. For indeed the object of that sentence is not the bond of matrimony to be dissolved, or simply the civil faculty made of flying to other nuptials, but only the civil advantages and effects which that sentence removes, or of which that sentence deprives the matrimony otherwise indissoluble, by defining the cessation of civil rights. But this is asserted altogether falsely. The intrinsic, immediate Object of the Sentence of the judge, specifying the same Sentence, is the intrinsic, immediate Object itself of the Law. This is established from the very nature of judicial Sentence, from the most manifest doctrine of all Theologians, especially of St. Thomas. For the judge, by his judgment or sentence, does nothing else than authoritatively interpret the law, define and determine the law in a particular case. Wherefore either it must be said that the Law of Divorce itself is not intrinsically illicit; or if that is intrinsically illicit, the Sentence of Divorce also is intrinsically illicit. Let the Angel of the School be heard: "He who brings forth judgment interprets in a certain way the dictum of the law, by applying it to a particular business. But since it belongs to the same authority to interpret the law and to establish the law, just as a law cannot be established except by public authority, so neither can judgment be brought forth except by public authority," etc. 2.2, q. 60, a. 6. The Angel of Our School teaches the same in the preceding article, where he says that judgment is the definition or determination of the just, or of written law, in which natural law or positive law is contained. This same is the mind of the Angelic Doctor, when he says that the sentence of a judge is, as it were, a certain particular law in some particular fact, ibid., q. 67, a. 1. For the sentence of a judge is not the particular law of the judge by simply constituting law, but by applying, defining, and determining in a particular case the law already constituted by the legislator.

n. 11.

It is insisted and asserted that that Sentence reaches only the civil contract, not the contract-sacrament; namely that contract, or species of contract, which is really distinct from the sacramental Contract and has place before the civil magistrate. The Law, not attending to the Sacrament, has this contract as matrimony; which nevertheless truly is not matrimony. Hence the Sentence of divorce does not have for its object divorce from the bond, but only denial of the protection of civil law. This insistence and assertion affirms in reality the same thing as the preceding assertion; for in other words it establishes that the object of that Sentence is the denial of civil effects and rights. Wherefore this insistence and assertion is altogether false, as was the preceding affirmation. For legislators bringing a law of divorce, although impious men, nevertheless are not so foolish that, leaving matrimony, which is the foundation of those civil rights, untouched, they would nevertheless deny the rights flowing from it; but, dissolving matrimony itself, by civilly making power of flying to other nuptials, they consequently deny the protection of law as to civil rights. Therefore the intrinsic immediate object of that law is the bond itself of matrimony, whence also it receives its name and is called the Law of Divorce. Therefore the object of the Sentence of the judge is the same, since it belongs to the judge not to establish law, but to pronounce judgment according to written law, by applying it to a particular case. Thus indeed the Fathers of the Provincial Council of Quebec understood the matter. For they say: "Not without great sorrow of soul, or rather horror, did the Fathers of this Provincial Synod learn that certain legislators of this region had most recently proposed that a Court of divorce be constituted, whose office would be TO PRONOUNCE DIVORCE FROM THE BOND on account of the cause of adultery." Thus also the Bishop of St. Gallen understood the matter, who proposed the doubt concerning this matter to the Sacred Congregation. For he says that, by that most recent law of the Helvetic Confederation, "marriages even of Catholics under certain very slight reasons can be dissolved perpetually, and DISSOLVED AS TO THE BOND, so that litigating spouses of this sort, after the sentence of divorce of the secular judges has been given, can pass, if they wish, to contracting other marriages." But then the same Most Reverend Bishop of St. Gallen enunciated the sixth Doubt thus: "Whether the same Catholic judges and advocates, according to the recent law of Helvetia, can with safe conscience propose THE BOND OF MATRIMONY AS TO BE DISSOLVED, or declare it AS DISSOLVED, and also declare that spouses of this sort can pass to contracting another marriage," etc. Likewise the Most Reverend Fathers, the Bishops of the Gauls, understood the matter. For, after a Letter had been received from the S. R. and U. I., in which it was said that "it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes, which pertain to Ecclesiastical power, in France... provided that... they never bring forth a sentence, nor defend one to be brought forth, or provoke or excite to one repugnant to divine or ecclesiastical law;" a doubt was proposed by the Most Reverend Bishops: "Whether correct is the interpretation diffused through the Gauls, and also given in print, according to which the judge satisfies the aforesaid condition, who, although some matrimony is valid before the Church, abstracts from that true matrimony with constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that in mind he intends to rupture only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard these alone?" Namely, the Most Reverend Fathers understood very well that the Law of Divorce regards true Matrimony itself, and consequently that the Sentence of Divorce reaches objectively the bond itself of Matrimony. Hence by right and deservedly they doubted concerning satisfaction of that condition of doing nothing against divine or ecclesiastical law, by that subjective abstraction. To this doubt the S. R. and U. I. responded: Negatively. Nor indeed could it respond otherwise, for that subjective abstraction and intention is retracted by the objective action itself, namely by that pronouncement of the Sentence of Divorce. And hence it is plain that the same also was the mind of the Sacred Congregation itself. For it could not deny for any other reason that this interpretation was correct, except insofar as it held as ratified and firm that the Law of Divorce and the Sentence of Divorce objectively reach, intrinsically and immediately, the very bond of Matrimony to be dissolved. This same mind the same Sacred Congregation disclosed to the Bishop of St. Gallen. For saying that it can be tolerated that Catholics act in the civil forum in the parts of advocate and actor in this cause of Divorce, besides other limitations, it added this: provided that "the Sentence of this tribunal has no other effect than the aforesaid separation," namely as to bed and board, just causes standing. Therefore the Sacred Congregation understood that that Sentence of itself can have also another effect, namely Divorce from the very bond of Matrimony, which, besides, is established from the whole tenor of that Response. Finally the aforesaid Congregation of the Holy Inquisition, in the Letter to the Bishops of France, says that judges ought to be so disposed in soul "both concerning the validity and nullity of marriage, and concerning the separation of bodies... that they never bring forth a Sentence... repugnant to divine or ecclesiastical law." Therefore the Most Eminent Fathers openly suppose that the object of that Sentence in the case is no other than both the very validity and nullity of marriage, and the separation of bodies.

n. 12.

Nor should it be objected that intrinsic illicitness cannot at least be deduced from the Decisions of the Sacred Congregation, since it uses the disjunctive particle or, saying that that Sentence is "repugnant to divine or ecclesiastical law." It is responded, 1st, although in the Letter to the Bishops of France the S. C. uses the disjunctive particle, nevertheless in the response to the Bishop of Southwark and St. Gallen it uses the copulative particle and, saying that nothing in the case ought to be done "which deflects from the principles of natural AND ecclesiastical law." It is responded, 2nd, that there was a reason why the S. C. used in the letter to the Bishops of France the disjunctive particle. For there was question not of the simple object of that Sentence, but of the complex object. There was question not only of divorce from the bond, but also of divorce from cohabitation and bed; wherefore it was well added with the disjunctive particle that the Sentence could be repugnant to divine or ecclesiastical law. This is the whole text: "provided that they be so disposed in soul both concerning the validity and nullity of marriage, and concerning the separation of bodies, concerning which causes they are compelled to judge, that they never bring forth a sentence... repugnant to divine or ecclesiastical law." A sentence against the validity and bond of matrimony is always repugnant to divine law; for by divine law that bond is constituted. But a sentence concerning separation of bodies can sometimes be repugnant to ecclesiastical law only, since many things in this matter have been constituted by the merely positive law of the Church. Nor does the Church, by tolerating that lay judges handle matrimonial causes, also make power for them of altogether putting aside ecclesiastical laws. In the Response, on the contrary, to the Bishop of Southwark and St. Gallen, there was question of the simple object of that Sentence, of the dissolution of the bond, and then the Sacred Congregation employs the copulative particle. For not only by divine law but also by ecclesiastical law does that bond stand. The whole text is of the following tenor: "Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking the dissolution of the bond? The Response was: Provided that the Bishop is assured of the probity of the advocate, and provided that the advocate does nothing which deflects from the principles of natural AND ecclesiastical law, it can be tolerated." But the Letter which also is brought forward against this conclusion, to the Nuncio of the Holy See in Belgium and to the Minister of foreign affairs in the same Belgium, proves nothing. For that letter enunciates the fact only, but has nothing concerning the doctrine itself of the matter.

n. 13.

Finally it is objected: because otherwise a good judge, to the great detriment of Society, would have to desert his office, and a bad judge certainly would be substituted for him; because if a Catholic judge does not pronounce this sentence, another impious judge will give it; because many Catholic judges now act in this way. It is responded to the 1st: It is not a detriment to Society that judges, in order to defend public justice and honesty, yield even their own office. It is not a detriment to Society that, among so many depraved examples of those who rule and govern Society, there are a few who adorn it by a good and praiseworthy example with so great inconvenience to themselves, others seeking the things that are their own, but they the things that are of Jesus Christ. It is a detriment to Society that by the cooperation of most honorable judges themselves Cities are filled with divorces and families are dissolved. It is responded to the 2nd: That others act badly is certainly not a reason why we also should do the same evil. Rather by our example, our principles and doctrines, let us impede also the evil of others. It is responded to the 3rd: That many Catholic judges also so act in good faith surely does not prove that they act rightly objectively. And as regards them, right prudence and a greater evil to be avoided, in determined circumstances of places and times, can counsel silence at least for a time. On the contrary, many and by far more hold the matter as illicit, and illicit by the natural law itself. Moreover secular judges ought not to teach theologians, but theologians ought to teach secular judges what in this matter is lawful and what is illicit.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 24 passages

92. On the Provincial Prefect, on Judges, on the Mayor

To Ferdinandus, a most pious man, prefect of a province, there was committed the execution of the Decree that religious families be expelled from that same province over which he presides. But if he refused to execute it, he himself would have to resign from office, and another prefect, altogether wicked, would be substituted in his place, who certainly will immediately, and more harshly, execute that Decree.

Q. Can Ferdinandus execute the aforesaid Decree, by commanding that even by military force, where there is need, religious be expelled from their own houses?

R. Negatively. For 1. it does not seem that, in circumstances of this sort, the Church yields its right, of the free existence of religious Orders and of ecclesiastical immunity. 2. It indeed does not appear how a most pious man can command the execution of so iniquitous and unjust a Decree without public scandal. 3. If that reason, which is the principal one, of resigning the office, were valid for a prefect on whom the burden of execution of the Decree falls, then it would also have to be said that the supreme minister of the Government himself, issuing such a Decree, would be excused, if otherwise he would have to yield his office. For if that mandate of execution is iniquitous, unjust, and scandalous, much more is the Decree itself iniquitous, unjust, and scandalous. Moreover there is no one who will ever excuse the supreme minister of the Government by that reason, that otherwise he would have to yield his office. Otherwise, now by similar Decrees he could with impunity attack any other right of the Church, which directly yields to public damage of Religion: for any minister who refused to sign Decrees of this sort would certainly be forced to resign his office. But that another is not lacking who would perform this evil and worse cannot render lawful that which is intrinsically illicit, by reason of scandal, by reason of hatred against Religion, by reason of injury against the legitimate liberty of the Church, the Church indeed being reasonably unwilling and contradicting.

Festus, a pastor, on account of a grave and urgent cause of death, joined in marriage Caius and Sempronia, concubinaries, although they had not previously contracted civil marriage before the civil magistrate. Festus is accused, as guilty of a violated law, before a judge, an excellent man and fervent Catholic. Hence the judge, very doubtful, approaches his confessor, asking from him whether he ought to resign his office, or whether he can render a condemnatory sentence against the pastor.

Q. What as to the Case?

R. The judge must first take care in every way to absolve the pastor in the case, and declare him innocent. For the pastor acted legitimately per se. Indeed he acted legitimately even with that law of precedence of civil marriage standing. For a law is subject to legitimate epikeia, and in the Case legitimate epikeia appears. If in no way can the judge render a sentence for the pastor, nor can he himself decline the judgment, he does not then seem to be held to yield his office. For although there is question of a law altogether harsh and unjust, nevertheless the matter is not intrinsically evil, and, where it cannot be done otherwise, it is tolerated; and so neither is it intrinsically evil to commit it to execution. Nor likewise is it intrinsically evil to condemn the pastor to some monetary fine, e.g., in the Case, precisely on account of the law not observed, prescinding from the aforesaid epikeia which civil law and the practice of the forum do not admit. For then one altogether innocent is not condemned, at least according to the appearance and form of the judgment, but one guilty of a violated law, namely according to the presumption of the external forum and according to the things brought forward and proved. But the pastor, on account of a greater harm both of the judge and of the community, if another wicked judge would have to be substituted, is reasonably judged to yield his own right as to the aforesaid fine to be paid. Wherefore in the Case the grave harm of the judge, who otherwise would have to resign office, and at the same time the grave harm of the community, which would certainly be present if a wicked judge were substituted, seems to prevail. But the judge must take care in the Case to decree as small a fine as possible, and in the preliminary considerations of the sentence to remove any insinuation injurious against the pastor, so that both every scandal may be removed, and the sentence itself may sufficiently be understood to yield only to the rigor of the law, which does not admit legitimate epikeia from elsewhere. — I. M. 19.

Augustinus and Dominicus, confessors, without any scruple absolve all judges who render a sentence of divorce, according to the more recent laws, in matrimonial causes. For they say that here there is no question of a thing intrinsically illicit, but only positively prohibited by the Church; and positive laws do not obligate with great inconvenience. Besides, the judge does nothing else except merely declare the law, which is an act indifferent of itself. Wherefore the cooperation of the judge toward the sin of the parties is merely material, which is lawful for a grave cause. Besides, the judge can well admonish the parties either privately, or even in the Considerations of the sentence, concerning the real indissolubility of marriage. Whence the aforesaid sentence will be nothing except a certain mere permission and denial of civil action; and in truth it regards nothing except the civil effects of marriage; and it in no way touches the sacrament of marriage itself, but only the civil contract of marriage.

Q. What as to the Case?

R. Augustinus and Dominicus are deceived. For there is question of a thing intrinsically illicit, by natural and divine right, and not only by ecclesiastical right. For divorce from the bond of matrimony, according to the more recent laws, is opposed to natural and divine right. Besides, the judge rendering sentence does not merely declare the law, but declares authoritatively and practically, so that from that sen- tence civil rights and civil obligations flow, which, speaking per se, have force also in the forum of conscience, namely when that sentence is legitimate and just. Therefore the cooperation of the judge toward the aforesaid divorce in the Case is not merely material, but formal; nor remote, but proximate, since it itself is what gives the parties the faculty of divorce. But that the judge admonishes the parties privately, or even in the Considerations of the following sentence, does not change the intrinsic nature of that sentence, but rather shows its illicitness more. A sentence of this sort is not a mere permission and denial of civil action, since that sentence makes a civil right or civil power, namely according to that iniquitous law of divorce, of contracting other marriages, so that he who is bound by this second marriage must be held by the judge himself, not as an adulterer, but as one legitimately bound by civil marriage. Lastly, it is altogether most false that that sentence regards only the civil effects of marriage, since otherwise the law of divorce would have been altogether useless; for those effects were already governed by the law of civil marriage. Therefore, as that law of divorce regards divorce itself from the bond, so consequently does the sentence of divorce delivered by the judge by force of that law. It is one thing indeed that that sentence regards only civil effects, which is false; another, that the civil effects, where that law now prevails, depend on that sentence, so that unless the sentence of divorce is first obtained, there cannot be had separation of bodies and goods. Lastly, it is plain that, since the aforesaid law and sentence touches divorce from the bond itself, in reality they do not touch only the civil contract of marriage, but most truly the sacrament of marriage itself.

And indeed, if what is asserted were true, namely that that sentence of divorce regards only the civil effects of marriage, then either the Holy Office or the Sacred Penitentiary, from whom it has been sought very often, would have permitted at least spouses to invoke that sentence of civil divorce, in the case of avoiding very grave damage; and, on the contrary, the response has always been: It is not lawful. Cf. Ferraris, Supplementum, v. Divortium, Commentary on the Sentence of Divorce to be rendered by a lay judge as to the bond of matrimony.

Armandus and Armanda, spouses, since they could not obtain a sentence of divorce in Italy because of the absence of such a law in Italy, go to France; there they first obtain naturalization, or civil status, and then in court they obtain a sentence of divorce. Having returned to Italy, they ask in court that the judge in Italy confirm the sentence rendered in France. — Can the aforesaid judge in Italy confirm that French sentence?

R. In the negative. In no way can the judge in Italy furnish this, either by natural law or by positive civil law. Concerning natural law, cf. here n. 3.

As regards civil law, it is easily proved, because from C. I. 56, 148, one bound by marriage cannot contract another marriage, and marriage ceases only by the death of the spouse. But one independent State cannot impose upon another State, likewise independent, its own law permitting an act prohibited in that State, when that act regards natural and public honesty, good morals, and public order, as the indissolubility of marriage is. Hence it is that whether Armandus and Armanda are Italians, or are also French, that sentence of divorce pronounced by a French judge cannot be held ratified by an Italian judge. It is added in the Case that there is open fraud against the law, and no one’s own fraud ought to patronize him.

The ship William Brown, directed from the port of Liverpool to Philadelphia, suffered shipwreck in the month of June in the year 1841. Many sailors and many travelers were saved in a small boat. But since the sea was stormy, in order to lighten the boat, which otherwise they feared would sink, the sailors cast the travelers into the sea. The matter then having been brought before a judge, the accused were acquitted in court, since otherwise all would certainly have perished.

It is asked: What must be judged concerning the sentence of the judge in the Case?

R. It was certainly in no way lawful for the sailors to cast the travelers into the sea. For this in fact was nothing else than to kill innocent men by private authority. But the fact that all otherwise would have perished does not make their homicide honorable, since the death of all would then have happened only by a natural misfortune, which certainly they could not prevent by the death of some. Therefore the sentence of the judge, wholly absolving the sailors as not guilty of homicide, was not legitimate. In the Case the judge ought indeed to have condemned the sailors as true homicides, but to a punishment milder than the ordinary one, on account of the grave circumstance of the shipwreck of all, which in the case certainly attenuated the offense. It would certainly have been wholly another thing if, in that danger, lest all should perish, some should have cast themselves into the sea, lest the boat be sunk by the multitude. For this “is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves.” Thus Lessius writes about one who permits to another the plank occupied by himself, de Iust. et Iur. l. 2, c. 9, d. 6, n. 31: “In a shipwreck,” he says, “you can permit to another a plank not yet occupied by you, indeed even one occupied, and commit yourself to the waves, even if there is no hope of escaping, as Victoria and Peter Navarrus teach; for this is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves. Here note that he who first occupied the thing in such an event is not held to admit another, but can hinder him, unless it is sufficient for both; if they occupied it at the same time, it must be decided by lot, unless one wishes voluntarily to yield to the other.” Kenrick, Theol. Mor., Mechlin, 1890, tr. 3, c. 9, nn. 111, 134.

Gerulfas, a mayor, assists at the civil marriage of two betrothed persons who both are bound by a previous marriage, but have already been separated from their own spouses by sentence of divorce according to the law in force. Gerulfas contends that he himself can licitly do this, because his assistance is merely a certain civil ceremony.

It is asked: What as to the Case?

R. Gerulfas acts wholly illicitly. For his presence is not a merely civil ceremony; but it is a certain solemnity of law, furnishing civil authority, in the particular Case set forth, to legal adultery, or to adultery contracted according to the norm of civil laws. This is further established from the Responses of the S. C. and of the S. Penitentiary. Cf. Enchir. Mor. 19. And, since the mayor, in the aforesaid Case, not only posits an intrinsically illicit act, but also one unjust against the prior legitimate wife and legitimate children, he is held to compensation for damages if the adulterer refuses to compensate them. For by that unjust act the mayor effectively influences those damages.

Nor indeed does it avail to object that civil marriage in the Case is not intrinsically illicit; whence it could at least be permitted in some very grave and very rare case. For civil marriage, since it is not true marriage, of itself does not hinder a man from fulfilling the obligations of the prior legitimate marriage. This is not true; for in order that in fact a man, for example, may return after a civil marriage to his legitimate wife, the consent of the other party is necessary. Therefore that civil marriage is an act of itself and by its nature legally sanctioning adultery against ecclesiastical and legitimate marriage. — Of a mayor of this sort it cannot be said, as is prescribed by the S. Penitentiary on 20 March 1855, that he does nothing against the sanctity of marriage and the necessity of contracting it before the Church. Of a mayor of this sort it cannot be said, as is held from the same S. Penitentiary, that he removes scandal, since on the contrary he confirms it by his own act.

Torquatus, a mayor, a fervent Catholic, assists at the civil marriage of Tullius and Tullia, whom he knows neither to have contracted canonical marriage previously, nor to wish to contract it afterwards. Torquatus cannot deny his assistance; for otherwise he will be liable both to a grave fine and to deposition from office.

It is asked: What as to the Case?

R. Torquatus, in the Case, can assist at the aforesaid marriage. For to the aforesaid case the S. Penitentiary, 20 March 1855, responded: “That it can be tolerated, provided that civil officials in drawing up acts of this sort intend to exercise a merely civil ceremony, and do nothing or advise nothing against the sanctity of marriage and the necessity of contracting it before the Church; rather, that they exhort them to contract it before the Church itself; having before their eyes the most holy laws of our Religion, and the letters of Benedict XIV, Redditae sunt nobis, concerning which, for removing scandal, they should admonish the contracting parties. But as regards cases in which it appears that the faithful, approaching the civil ceremony, are ill-disposed, and will not celebrate before the Church the marriage which regularly ought to have been premised, but will remain in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by St. Alphonsus, l. 2, tr. 3, c. 2, dub. 5, art. 3, concerning cooperation.” Moreover in the aforesaid letters Benedict XIV teaches that, when Catholics present themselves to the civil magistrate, they exercise a merely civil act, and that marriage must be celebrated before a Catholic minister and two witnesses; otherwise they will never be legitimate spouses, nor ever legitimate offspring.

Ch. II, Art. III, § 2, I. On Civil Marriage · Ch. III, Appendix. What is to be Observed in Practice concerning Civil Marriage and Civil Divorce

Now St. Alphonsus teaches this concerning cooperation in the place cited: “It must be said that that cooperation is formal which concurs with the evil will of another and cannot be without sin; but that is material which concurs only with the evil action of another, apart from the intention of the cooperator. And this is licit when the action of itself is good and indifferent, and when there is present a just cause proportionate to the gravity of the sin of the other and to the proximity of the concurrence which is furnished for the execution of the sin.” Cf. I. M. v. 1, 440. Moreover Torquatus the mayor does not cooperate formally in the case with the depraved will of Tullius and Tullia, either by intention, as is supposed, or by action; for the act of the mayor is, in the Case, a merely civil ceremony, furnishing of itself force to a marriage contracted or to be contracted, as to civil effects. For by civil law those things can be ordered and administered which marriages of themselves bring in the civil order, the marriage itself being left untouched, which among Christians is governed by the laws of the Church. But that Tullius and Tullia have neither previously contracted marriage, nor wish afterwards to contract marriage, is only from their depraved will. The cooperation of the mayor is merely material, by an act, as appears, not only indifferent, but of itself honorable and licit, which the aforesaid betrothed persons abuse only from their own malice. Nor indeed is a just and proportionate cause lacking, such as certainly is both the grave fine to which the mayor would otherwise be subjected, and his deposition from office, which would redound to the grave private harm of the mayor himself and to the common harm of society itself; because otherwise honorable and religious public officials would, to the public harm, be replaced by depraved and unjust officials.

Tanquerey

Adolphe Tanquerey, S.S. — 36 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Appendix: On Civil Law with Respect to Marriage

n. 1104.

I. Principles on the Manner of Acting with Respect to Civil Laws Concerning Marriage.

Principle I: Those about to marry can faithfully observe, and regularly ought to observe, the prescriptions of civil law concerning the celebration of marriage, which are not opposed to divine or ecclesiastical law, especially if upon them depends the value of the marriage in the civil forum.

¹ De Angelis, lib. IV, tit. 1, n. 13-14; Feije, n. 780-785; Haine, q. 173-175; Gasparri, n. 1210-1231; Aertnys, n. 473.

(A) For this is deservedly inferred from the Instruction of the S. Penitentiary concerning civil marriage, January 15, 1866, where it is said²: "Nevertheless, for avoiding vexations and penalties, and on account of the good of offspring, which otherwise would by no means be held as legitimate by the lay power, and also for averting the danger of polygamy, it seems opportune and expedient that the same Faithful, after they have legitimately contracted marriage before the Church, present themselves to perform the act prescribed by law, yet with that intention (as Benedict XIV teaches in the Brief of September 17, 1746, Redditae sunt Nobis), that in presenting themselves to the Government Official they do nothing else than perform the civil ceremony."

² Apud Acta S. Sedis, I, p. 508-512. - This is confirmed from the decree of the Holy Office, January 12, 1881 (Collect. P. F., n. 1550): "Missionaries must take care that those who are going to contract marriage observe even civil prescriptions, which are conducive to conserving the moral order as regards the civil effects of marriage."

(B) For although the State cannot by its own right make laws, for Christian subjects, concerning the matrimonial bond, it can fortify ecclesiastical laws, either all or some, with civil sanction; it can besides, by its own right, establish laws concerning civil effects separable from the bond of marriage. Moreover, if the State has made laws in a matrimonial matter, which require certain solemnities so that marriage may not lack its civil effects, and which otherwise do not stand in the way of divine and ecclesiastical law, certainly spouses may obey these; indeed this seems opportune and expedient, as the S. Penitentiary says: (a) for avoiding vexations and penalties which the State inflicts upon violators of laws; (b) on account of the good of offspring, which otherwise would not be held as legitimate by civil law; (c) for averting the danger of polygamy, since in reality some are deterred from this vice by fear of civil laws.

n. 1105.

Corollaries: (a) Where there is had the marriage which they call civil, it is not only licit, but expedient, that the faithful present themselves before the civil magistrate, so that before the law they may be held as true spouses and their children as legitimate; provided, however, that they rightly understand that this is not true marriage, where Tametsi is in force, but a merely civil act, by which they show their submission toward the laws.

When the laws permit this, the faithful must first contract before the Church, and afterward complete the civil act. But if the law prescribes the inverse order, as in France, or grave necessity demands it, the spouses can indeed first present themselves before the civil magistrate; but "then all diligence must be used, so that the marriage be contracted before the Church as soon as possible, and meanwhile the contracting parties remain separated."¹

¹ Instr. S. Penit., l. c., p. 511-512.

In the United States of America, religious marriage is held as valid before civil law; but in most States a license is required from a public official before proceeding licitly to marriage; and besides, the minister before whom the nuptials have been celebrated is bound, within a defined time, in writing, to make known to the official designated by law the marriage entered; which indeed, as consonant with reason, must be carefully observed.

n. 1106.

(b) Where there are civil impediments, especially diriment ones, which are not recognized as such by the Church, pastors should not easily admit to contracting marriage those who are held by civil law as incapable: both because these are not considered by the State as legitimate spouses, and because pastors celebrating such unions can be punished by law, not without scandal of the faithful. "In this matter they will have to use much caution and prudence, and to seek the counsel of the Ordinary; and let him not be easy in consenting; but in graver cases let him consult this sacred Tribunal."¹

¹ Instr. S. Penit., l. c., p. 511. - This rule is practical in some of the United States of America, where marriages between whites and blacks or indigenous persons are most strictly prohibited.

n. 1107.

Principle II: If the precepts of civil law are intrinsically repugnant to divine or ecclesiastical right, it is not licit actively to execute them. For this follows from what has been said in the Treatise on Laws. Hence spouses who, after obtaining a civil divorce, fly to new nuptials sin gravely, although by civil law they may be able to do this: for a law of this kind is altogether contrary to the divine law of the indissolubility of marriage. But if divorce is sought without the intention of marrying again, the matter is disputed (above n. 751).

But if someone passively cooperates in the execution of an unjust law, e.g., if a civil magistrate assists at a civil marriage by office, when he certainly knows that the contracting parties do not wish to enter marriage before the Church (where Tametsi is in force), or that they are bound by a prior bond, it is disputed whether this manner of acting is gravely illicit, as has already been said, n. 760.

n. 1108.

II. Principal Civil Laws Concerning Marriage in England and the United States.

1° As regards betrothals. (A) In England, these things are to be noted concerning betrothals: "A promise to marry at a future time, which, like other contracts, gives a right of action for damages in case of its violation, is not binding on the defendant unless he or she be of the full age which the law provides for other cases of contract, viz. twenty-one years; and where there are mutual promises to marry made by two persons, one of the age of twenty-one, and the other under that age, the first is bound by the contract so as to be liable to an action if it be broken; but on the part of the minor, it used to be voidable; and it is now void."²

² Stephen's Commentaries, 12th ed. London, 1895, vol. II, p. 252.

n. 1109.

(B) In the United States of America: (a) "If an infant below the marriageable age and a competent person agree to intermarry, the contract is void because it is an attempted violation of the law. But after the marriageable age has arrived, a marriage by the infant may sometimes be beneficial to him; therefore, as to him, the agreement to marry with an adult will be, not void, but voidable. And within familiar principles it cannot be enforced against the infant, who may rely on his non-age to avoid it; but the infant's action for its breach by the adult is in no degree impaired by the fact of infancy."¹

¹ Bishop, New Comment. on Marriage, Divorce and Separation, Chicago, 1891, vol. I, § 206.

(b) "Parties in too near consanguinity, being by law incapable of intermarriage, cannot bind themselves by a mutual promise to marry."²

² Bishop, I, § 203.

(c) "When marriageable persons conduct toward each other as engaged parties commonly do, and as those who are not engaged do not, the reasonable and fair inference is that they are in fact what they thus hold themselves out to be, engaged; and in a breach-of-promise suit the jury is justifiable in so finding."³

³ Bishop, § 197.

(d) "When one party has agreed to marry the other under the presumable inducement of a controlling fact supposed to exist while it did not, or when such a fact existed at the time of the promise but was afterward reversed, or when the other's fraudulent representation of something even less important entrapped him into the promise, he may rescind the agreement, first giving an expressed or implied due notice, where the thing was not within the knowledge of the other."⁴ - "Any conduct by one of the parties, amounting to actual fraud, will justify the other, who has been entrapped by it, in withdrawing from the agreement."⁵ - If parties to a marriage promise mutually to relinquish it, the release by each is a consideration for that by the other, and neither can afterward maintain a breach-of-promise suit.⁶ - "And after the bargain is entered into, ill conduct in one of them, of a nature and to a degree not quite definable, yet far less than would be required for a divorce after marriage, will justify the other in rescinding it. So likewise may either rescind it for any supervening incapacity in himself or in the other to fulfil the special duties of marriage."⁷

⁴ Bishop, § 216.

⁵ Bishop, § 224.

⁶ Bishop, § 225.

⁷ Bishop, § 235.

(e) "Damages for the breach are not restricted to such as can be measured by the rule of dollars and cents, but, beyond this, the jury may give what seems reasonable in compensation for wounded feelings, for disgrace and shame, for loss of position in society and other like evils coming as natural and probable consequences of the breach, or of the special circumstances in which the breach was committed."¹

¹ Bishop, l. c.

n. 1110.

2° On the celebration of marriage. (A) In England many conditions are required for the celebration of marriage, especially as regards Catholics, who do not wish to marry in Anglican churches². (a) "Persons desiring to be married in a Catholic church must obtain the Registrar's certificate; they may also obtain from him a licence permitting the marriage to be solemnized with less delay, for a fee of thirty shillings and ten shillings stamp duty."

² We take these rules from the work: A Manual of the Law specially affecting Catholics, by W. S. Lilly and J. E. P. Wallis, London, 1893, p. 54-57. Since it is difficult for the poor to follow all these prescriptions, not a few live in concubinage: hence the Catholic Bishops of England earnestly requested that certain of them be abolished or changed, ibid., p. 191-195. - Cf. Stephen, II, p. 252-265.

"In the first place, notice must be given in the form prescribed in the Act by one of the parties to the Superintendent Registrar of the District where they shall have dwelt for the preceding seven days, fifteen days if the marriage is to be by licence; or, if they dwell in different districts, then the Registrar of each District, unless the marriage is to be by licence, when notice to one Superintendent Registrar is sufficient. A copy of the notice is entered by the Registrar in the Marriage Notice Book, which is open, at all reasonable times, without fee to all persons desirous of inspecting it. Either the original notice, or a copy thereof, under the hand of the Superintendent Registrar, must be affixed in a conspicuous place in his office. And for every such notice he is entitled to a fee of one shilling (6 & 7 Will. 4, c. 85, SS. 4, 5; and 19 & 20 Vict. c. 119 S. 3)."

(b) "One whole day after the entry of this notice, if the marriage is to be solemnized by licence, or twenty-one days after, if it is to be solemnized without licence, the Superintendant Registrar, upon the demand of the party by whom notice was given, issues a certificate in the form provided by the Act, showing that the requisite notice has been given, and that the issue of the certificate has not been forbidden by any authorised person, and for this certificate a fee of one shilling is payable (6 & 7 Will. 4, c. 85, S. 7, and 19 & 20 Vict. c. 119, S. 4)."

(c) "The marriage may then be celebrated in the Catholic church duly registered for the solemnization of marriages, which is specified in the notice and which must, as a rule, be in the district of the residence of one of the parties. But it must be celebrated in the presence of a Registrar of the district in which the church is situated, and of two or more credible witnesses, and a fee of five shillings - ten if the marriage is by licence - is payable to the Registrar for his attendance (6 & 7 Will. 4, c. 85, SS. 18, 20, 22.) The Act further provides that in some part of the ceremony, and in the presence of the Registrar, each of the parties shall declare: "I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D.," and that each of the parties shall say to the other: "I call upon these persons, here present, to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband)."

(d) "The celebration of the marriage must take place within three calendar months next after the day of the entry of the notice. Should a certificate of marriage ("The Marriage Lines") be desired, it may be procured from the Registrar-General, or Superintendent Registrar, upon payment of a fee of two shillings and sixpence (6 & 7 Will. 4, c. 85. SS. 35, 36)."

(e) "The clergy should take note that by S. 39 a priest would be guilty of felony if he knowingly solemnized a marriage in England in any other place than the registered building specified in the notice and certificate, or in a registered building in the absence of a Registrar of the district."

(f) It is provided by 19 & 20 Vict. c. 119, S. 12, that "if the parties to any marriage contracted at the registry office of any district shall desire to add the religious ceremony ordained or used by the church or persuasion of which such parties shall be members to the marriage so contracted, it shall be competent for them to present themselves for that purpose to a clergyman or minister of the church or persuasion of which such parties shall be members, having given notice to such clergyman or minister of their intention to do so; and such clergyman or minister, upon the production of their certificate of marriage before the Superintendent Registrar, and upon the payment of the customary fees (if any), may, if he shall see fit, in the church or chapel whereof he is the regular minister, by himself, or by some minister nominated by him, read or celebrate the marriage service of the persuasion to which such minister shall belong."

n. 1111.

(B) In the United States of America, by common law no solemnity is required for the validity of matrimonial consent; but by particular law in most States, for liceity, under various penalties, certain conditions are prescribed¹:

¹ We borrow the summary of American law from Browne, Elements of the Law of Domestic Relations, Boston, 1890, p. 9-12. - Cf. Bishop, § 293-449.

(a) "At common law marriage is a civil contract, to which consent alone is essential. It requires no legal forms nor religious solemnities, nor special mode of proof. The common rule is, that in the absence of statutory regulation, consent per verba de praesenti with or without consummation, or per verba de futuro with consummation, constitutes a valid marriage... In New York, Illinois, and Rhode Island, it is now held that mere verba de futuro, although followed by consummation, do not constitute a valid marriage."

(b) "Although in most if not all of the United States there are statutes regulating the celebration of marriage, and inflicting penalties on all who disobey the regulations, yet it is generally considered that in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be absolutely void, or that none but certain magistrates or ministers shall celebrate a marriage, any marriage regularly made according to the common law, without observing the statutory regulations would be still a valid marriage."

(c) "An assent to a ceremony understood on both sides to be given in jest, even if the clergyman is in earnest, will not constitute a valid marriage; but otherwise, if one of the parties is in earnest; and where one party procures a mock ceremony to be performed by one falsely personating a clergyman, it will bind both if the other assents in good faith."

(d) "Intercourse illicit in its commencement will be presumed always so to continue, and no marriage can be presumed from it. Without express proof of words of consent a valid marriage may be predicated of cohabitation, acknowledgment of a marriage by the parties, receptions of them by relatives and friends and in society as husband and wife. Even though it may invalidate a subsequent marriage. But not as against a prior ceremonial marriage."

(C) When nuptials are celebrated in a foreign region by English or Americans, they are valid, provided that the rite customarily employed in that region has been observed, and otherwise they are truly capable of contracting, according to English or American laws¹.

¹ Browne, p. 12; Stephen, p. 264-265.

n. 1112.

3° On the mutual rights and offices of husband and wife. These are substantially the same in England as in America². (a) Rights of the husband: "The rights of a husband, in and over his wife, are two: obedience and service. The husband has the legal control of the person of his wife, and may put moderate restraints upon her liberty, if her conduct be such as to require it. If he changes his domicile, it is her duty to follow him. If she elopes and abandons him without cause, he may compel her to return. But he has no right to chastise her or to use physical violence toward her, except so far as is necessary to prevent her from doing violence to himself or others. The services of the wife, and the result thereof, also belong to the husband, at common law; though in some States, by Statute, he is entitled to the result of her service only as a trustee, and holds them for her use."

² W. C. Robinson, Elementary Law, Boston, 1882, p. 112-113, gives a summary of these.

(b) Rights of the wife: "The rights of the wife, in and from the husband, are also two: protection and support. Whatever he may lawfully do in his own defence he may do, and is naturally obliged to do, in defence of her. It is his duty to provide her with necessaries according to her station in life, and, if he refuses to do so, she may contract for them in his name, and she may still contract debts for her necessaries in his name. This right will be forfeited by the wife if she elopes with an adulterer, or if she abandons her husband without cause and does not repent and offer to return to him. But the husband is not bound to support the wife out of his family, if he provides for her and treats her properly there; and, in all cases, persons supplying a wife with necessaries, without the consent of the husband, are bound to make inquiries, and, even after such inquiries, if they supply her, they do it at their peril."

n. 1113.

4° On semi-full divorce, or separation from bed and board. (A) In England: "A judicial separation (in lieu of the divorce a mensa et toro) may now be decreed, on the petition of either husband or wife; and this decree has all the effect that belonged to the old divorce a mensa et toro; and judicial separation may be decreed on the ground of adultery, or cruelty; or on the ground of desertion without cause for two years and upwards; and during the continuance of the decree, the wife acquires, as to property and for many other purposes, the condition of a feme sole¹."

¹ Stephen, II, p. 285-286.

n. 1114.

(B) In the United States of America, divorce from bed and board is not recognized by common law, but by the Statutes of many States². The causes on account of which it is granted are diverse according to the diverse States³. The following are recognized in almost all⁴:

² "Limited divorce exists in the following states: Alabama, Arkansas, Delaware, District of Columbia, Georgia, Kentucky, Louisiana, Maryland, Michigan, Minnesota (in favor of wife only), Nebraska, New Jersey, New York, North Carolina, Pennsylvania (in favor of wife only), Rhode Island, Tennessee (in favor of wife only), Virginia, West Virginia, Wisconsin." (A report on Marriage and Divorce, by Carroll D. Wright, Washington, 1891, p. 115.)

³ C. D. Wright enumerates these, op. cit., p. 89-112.

⁴ Browne, p. 64-66.

(a) "Cruel and inhuman treatment. This must be such as renders the life or health of the plaintiff unsafe. Words of menace creating a reasonable apprehension of bodily violence will suffice. It need not be personal; unmercifully whipping her child in the wife's presence and in spite of her entreaties will suffice. But mere bad temper, or conduct producing annoyance, discontent, and disgust, is not enough. Nor does mere intoxication, occasional or frequent, constitute cruel or inhuman treatment. Nor an angry expulsion of the wife under suspicion of infidelity. Nor refusal to permit her to attend her own church. A single cruel act does not constitute cruelty of treatment. But when accompanied by circumstances indicative of a probability of repetition, it may warrant a divorce."

(b) "Such conduct as renders it unsafe and improper to cohabit. "Unsafe" means a reasonable apprehension of bodily injury. As subjecting the wife to excessive sexual intercourse."

(c) "Abandonment and refusal or neglect to provide. These must concur. The neglect must be wilful. Denial of sexual intercourse is not utter desertion; nor desertion, nor cruelty. On a suit by a husband for separation for abandonment, the wife may be awarded a separation for cruelty."

(d) As regards the alimony of the wife, these things also are to be noted: "Pending the suit the court may grant the wife a pecuniary provision from the husband to enable her to live separately from him, which is called alimony; and also compel him to pay her counsel fees to enable her to wage or defend the suit. On granting her a divorce the court may also impose alimony, and order the husband to make provision for supporting the children."

n. 1115.

5° On full divorce. (A) In England: (a) "A divorce or dissolution of the marriage... may also now be obtained on the petition of either husband or wife; and where he is the petitioner, it may be on the ground that since the marriage she has been guilty of adultery; but where she is the petitioner, it may only be on the ground that he has since the marriage been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of unnatural crime, or of adultery coupled with such cruelty as would, without adultery, have formerly entitled her to a divorce a mensa et toro; or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. But no divorce can be decreed, if the petitioner (whether husband or wife) has been accessory to, or connived at, or has condoned the adultery; or if the petition is presented or prosecuted by collusion; and the court is not bound to decree the divorce, if the petitioner has been guilty of adultery during the marriage; or of cruelty; or of desertion or wilful separation; or of such wilful neglect or misconduct as has conduced to the adultery; or if there has been undue delay (remaining unexplained) in presenting the petition."¹

¹ Stephen, p. 286.

(b) "A decree of nullity of marriage may also be obtained on any ground which would formerly have justified a divorce a vinculo,"² viz. disability; lack of legal age, of mental capacity, etc.

² Stephen, p. 288.

n. 1116.

(B) In the United States of America, the laws are altogether diverse according to the diverse States; therefore we can hand down only those things which are more common. (a) "Nullity of contract... For this divorce there are generally five causes: lack of legal age, former marriage, lack of mental capacity, force or fraud, and impotence... It may now be said generally, that marriages coming within these prohibitions are usually valid until pronounced void, and the children are legitimate. It has been held, however, that a judgment annulling a marriage contracted by an insane party is unnecessary. The lack of mental capacity and the impotence, to justify a divorce, must have existed at the time of the marriage."¹

¹ Browne, p. 62-63.

(b) Among the principal causes which in various States suffice for divorce properly so called, the following are enumerated²: adultery, a cause in all the states and territories; pregnancy of wife at time of marriage, unknown to husband; abandonment, desertion, wilful absence; disappearance, absence without being heard from; cruelty, actual violence or apprehension thereof, inhuman treatment³; failure or neglect of husband to provide for wife; drunkenness (habitual), conviction of felony or infamous crime, sentence to imprisonment.

² Cf. C. D. Wright, op. cit., p. 89-115.

³ How broadly this cause of divorce extends can be understood from the various examples which C. D. Wright reports, p. 172-178: "Defendant does not wash himself, thereby inflicting on plaintiff great mental anguish... Defendant has accused plaintiff's sister of stealing, thereby sorely wounding plaintiff's feelings... Defendant violently upbraided plaintiff and said to him: You are no man at all; thus causing him mental suffering and anguish... Defendant pulled plaintiff out of bed by his whiskers, etc. etc."

(c) In relation to adultery, these things are worthy of note: "But a divorce for this cause will never be granted where the offence was committed by the procurement or connivance of the complainant; or has been forgiven and the parties have voluntarily cohabited with knowledge of its commission, which is called condonation; or the complainant has also been guilty of the like offence, so that the defendant, if innocent, might have a divorce therefor, which is called recrimination."⁴

⁴ Browne, p. 63.

(d) "Generally the defendant, on judgment passing against him, is prohibited from remarrying during the plaintiff's life. But this provision has no extra-territorial effect. It is held that a marriage within this State in violation of this injunction subjects the prohibited party to the penalties of bigamy."⁵

⁵ Browne, p. 64.

n. 1117.

On matrimonial impediments. (A) In England they are reduced to four⁶:

⁶ Ap. Stephen, p. 248-252.

(a) "The first of them, namely, a prior marriage still subsisting, wants no particular observation, excepting this, that the second marriage is to all intents and purposes void."

(b) "Insanity, or want of reason, is the second civil disability... and accordingly, by our law, it is established that a marriage contracted under circumstances of duress overpowering the will is void; also, that the marriage of a lunatic, not being in a lucid interval, is absolutely void."

(c) "The third civil incapacity is that in respect of proximity of relationship, - whether of consanguinity or of affinity... The only marriages which are now illegal in respect of proximity of degree (as being either contrary to God's law or within the Levitical degrees), are the following, viz. - those between persons in the ascending and descending line in infinitum, - and those between collaterals to the third degree inclusive, according to the mode of computation in the civil law; which reckons the sum of the degrees from, (but exclusively of), one of the persons related, up to the common stock and so down to the other person. Moreover, the prohibitions in the case of collaterals extend not only to consanguinei, or those related by blood, but to affines, or those related by marriage; e.g. a man can marry neither his sister, nor his deceased wife's sister, for both are related to him in the second degree; nor his sister's daughter, nor his deceased wife's sister's daughter, for both are in the third degree; but he may marry his first cousin, for she is in the fourth degree."

(d) "The want of age... It is not necessary to the contract of marriage that the parties should have attained their full age of twenty-one; for a male person is enabled by law to consent to matrimony at the age of fourteen, and a female at the age of twelve, subject (where subject) to the consent of their parents or guardians; and, indeed, even though the male be under fourteen, or the girl under twelve, the marriage is not absolutely void, but is inchoate only and imperfect; and either of the parties, upon coming to the proper age for his or her consent, may in such latter case disagree to (and so avoid) the marriage; but a marriage between people, either of whom is under the age of seven years, is absolutely void."

n. 1118.

(B) In the United States of America, the impediments are various according to the various States; those which are common to almost all are referred to seven heads:

(a) "Law forbids the marriage of near relations. The degrees of consanguinity called the prohibited degrees are defined by the laws of the different States. In Maryland, for instance, a man shall not marry his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's daughter, or sister's daughter. A woman shall not marry her corresponding relatives."¹

¹ Cf. C. D. Wright, p. 31-35, where the laws of various States are enumerated.

(b) "Social condition. At common law, and in England, race color, and social rank constitute no impediment to marriage. In this country United States, in many States marriage is by statute forbidden between whites and negroes or Indians."¹

¹ Browne, p. 3.

(c) "Mental capacity. An intelligent consent is essential to a valid marriage. Hence an idiot or lunatic cannot contract marriage. So of other persons who have not the capacity to understand the duties and obligations of the relation. The test usually applied in the courts is that of fitness for the general transactions of life... Marriage contracted during temporary insanity is void; but marriage contracted during a lucid interval is valid; except when provided, as in England and in some of our States, by statute, that it is void during an unrevoked commission of lunacy. Drunkenness does not incapacitate, unless so great that the party does not know what he is about. Deaf and dumb persons, formerly classed as idiots, may now, it is held, contract a valid marriage."²

² Browne, p. 3-4.

(d) "Physical capacity. Where impotence exists there can be no valid marriage. But impotence means physical incapacity; not mere coldness, reluctance or unwillingness, or even absolute refusal to consent to sexual connection. Barrenness constitutes no incapacity, nor does any malformation not preventing copulation, nor any curable disability. The impotency must have existed at the time of the marriage."³

³ Browne, p. 5.

(e) "Age. The common law fixes an age of consent for a valid marriage at 14 in males and 12 in females... A marriage, either party to which was under the age of consent, may be ratified, on arriving at that age, by consent implied from continued intercourse or slight circumstances. Consent of parents is not necessary to the marriage of minors. In some States such marriages are forbidden without being declared void, and penalties are denounced for celebrating or contracting them."⁴

⁴ Browne, p. 5-6.

(f) "Prior marriage. Polygamy or bigamy is denounced as a crime by all christian communities... At common law the subsequent marriage is void ab initio, but statutes have relaxed this rule by declaring that such marriages shall be void only from the time when so pronounced by the decree of a competent court."⁵

⁵ Browne, p. 6.

(g) "Force or Fraud. Kent says "a marriage procured by force or fraud is void ab initio, and may be treated as void by every court in which its validity may be incidentally drawn in question." So says Schouler. But this has recently been denied, and it has been held that such a marriage can only be avoided by the person defrauded, in his lifetime. Statutes have changed the rule in some States, and attached the invalidity of the time of a decree of nullity.

"Force implies physical restraint; fraud implies deception. The general rule is that the force must be such as would naturally serve to overcome the will. The question of the amount of force depends upon circumstances... A marriage procured by illegal arrest may be avoided, and so where the arrest was legal but malicious. But when a man under legal arrest for seduction reluctantly marries the woman the marriage will not be set aside.

"The fraud which will avoid a marriage must go to the essence of the contract... So fraudulent representations by one party as to birth, age, social position, fortune, health, manners, or character will not suffice... A false personation would undoubtedly avoid the marriage."¹

¹ Browne, p. 7-8.

n. 1119.

1° On betrothals. The civil Code is silent concerning betrothals, and jurists hold that promises of future marriage do not have obligatory force. "Nevertheless, the tribunals every day condemn to damages and interest that one of the betrothed who fails in his promise without legitimate reasons: the judge sovereignly assesses the legitimacy of the reason. Damages and interest are allotted by application of art. 1392. The promise of marriage is without doubt null. But that one of the betrothed who, after having made such a promise, withdraws capriciously, makes himself guilty of a civil delict or of a quasi-delict: of a civil delict, if there is fraud on his part, of a quasi-delict, if there is only heedlessness; he must be condemned to repair the material or even moral prejudice of which he is the author. The material prejudice will consist in the expenses made by the abandoned betrothed with a view to the conclusion of the marriage; the moral prejudice, in the injury brought to his reputation."³

² Carriere, II, n. 936-1026; Theol. Claromont., n. 325-335; Gasparri, n. 1211-1220; Allegre, Code civil commente, 6th ed., Paris, 1897, I, p. 74-82; Baudry-Lacantinerie, Precis de Droit Civil, 7th ed., Paris, 1899, t. I, n. 483-936.

³ Baud. Lac. n. 484.

n. 1120.

2° On the celebration of marriage. (A) Before the marriage, banns must be promulgated: (a) "Before the celebration of marriage, the officer of the civil state shall make a publication by means of a notice posted at the door of the common house. This publication shall state the given names, names, professions, domiciles, and residence of the future spouses, their quality of being majors or minors, and the given names, names, professions, and domiciles of their fathers and mothers. It shall state, besides, the days, places, and hours when it was made: It shall be inscribed upon a single register, numbered and initialed as is said in article 41, and deposited at the end of each year at the registry of the tribunal of the arrondissement."¹

¹ Code civil, art. 63. We give here the corrections made by the law of June 21, 1907.

(b) "The notice foreseen in the preceding article shall remain posted at the door of the common house for ten days, which must comprise two Sundays. The marriage cannot be celebrated before the tenth day from and not including that of the publication."²

² Art. 165.

(c) "If the marriage has not been celebrated within the year, counting from the expiration of the time-limit of the publication, it can no longer be celebrated except after a new publication made in the form above."³

³ Art. 64.

n. 1121.

(B) As regards the celebration itself of marriage: (a) "Marriage shall be celebrated publicly before the officer of the civil state of the commune where one of the spouses shall have his domicile or his residence on the date of the publication foreseen by art. 63, and, in case of dispensation from publication, on the date of the dispensation foreseen in art. 169 below."⁴

⁴ Art. 65.

(b) "Marriage shall be celebrated in the commune where one of the two spouses shall have his domicile, or his residence established by at least one month of continuous habitation on the date of the publication foreseen by the law."⁵

⁵ Art. 74.

(c) "On the day designated by the parties after the time-limits of the publications, the officer of the civil state, in the common house, in the presence of four witnesses, relatives or non-relatives, shall read to the parties the above-mentioned documents, relating to their state and to the formalities of marriage, and ch. VI of the title on Marriage concerning the respective rights and duties of the spouses. He shall receive from each party, one after the other, the declaration that they wish to take each other for husband and wife; he shall pronounce, in the name of the law, that they are united by marriage, and he shall draw up an act of it on the spot."⁶

⁶ Art. 76.

(d) "There shall be stated, in the act of marriage: 1° the given names, names, professions, age, places of birth and domicile of the spouses; - 2° whether they are majors or minors; - 3° the given names, names, professions, and domiciles of the fathers and mothers; - 4° the consent of the fathers and mothers, grandfathers and grandmothers, and that of the Family Council, in the cases in which they are required; - 5° the notification prescribed by article 151, if it has been made; - 6° the oppositions, if there have been any; their removal, or the mention that there has been no opposition; - 7° the declaration of the contracting parties to take each other for spouses, and the pronouncement of their union by the public officer; - 8° the given names, names, age, professions, and domiciles of the witnesses, and their declaration, if they are relatives or affines of the parties, on which side and in what degree; - 9° the declaration made upon the interpellation prescribed by the preceding article that a marriage contract has or has not been made, and, insofar as possible, the date of the contract, if it exists, as well as the names and place of residence of the notary who received it; all under penalty against the officer of the fine fixed by art. 50. - Mention shall be made of the celebration of the marriage in the margin of the birth act of the spouses."¹

¹ Art. 76.

(e) "A marriage contracted in a foreign country between French persons, and between French persons and foreigners, shall be valid, if it has been celebrated in the forms used in the country, provided that it has been preceded by the publication prescribed by article 63, under the title of Acts of the civil state, and that the French person has not contravened the dispositions contained in the preceding chapter. - The same shall hold for a marriage contracted in a foreign country between a French man and a foreign woman, if it has been celebrated by the diplomatic agents or by the consuls of France, conformably to French laws. - Within three months after the return of the French person to the territory of the Republic, the act of celebration of the marriage contracted in a foreign country shall be transcribed upon the public register of marriages of the place of his domicile."²

² Art. 170-171. - It is disputed among jurists whether a marriage entered without conditions of this kind is valid or not; cf. Baud. Lac. n. 555-557.

(f) These things also are to be noted by priests: "Every minister of a cult who shall proceed to the religious ceremonies of a marriage without its having been justified to him by an act of marriage previously received by the officers of the civil state shall be punished, for the first time, by a fine of 16 francs to 100 francs. - In case of new contraventions of the kind expressed in the preceding article, the minister of the cult who has committed them shall be punished, namely: for the first relapse, by imprisonment from two to five years; and for the second, by detention."³

³ Code penal, art. 199-200.

n. 1122.

3° On the mutual rights and offices of spouses. (a) "The spouses owe each other mutually fidelity, aid, assistance. - The husband owes protection to the woman; the woman, obedience to her husband. - The woman is obliged to dwell with the husband, and to follow him wherever he judges it suitable to reside: the husband is obliged to receive her, and to furnish her everything that is necessary for the needs of life, according to his resources and his state."⁴

⁴ Code civil, art. 212-214. - The aid in question consists in the furnishing, in kind or in money, of things necessary for life. The obligation of paying alimentary support is imposed, at the cessation of common life, when one of the two spouses is without resources, - when the husband refuses to receive his wife at the conjugal domicile, - when the husband forces his wife to leave the conjugal domicile by the bad treatment which he makes her undergo. Cf. Baud. Lac. n. 715-716.

n. 1123.

4° On matrimonial impediments. (A) Age: "A man before eighteen completed years, a woman before fifteen completed years, cannot contract marriage. - Nevertheless it is permitted to the President of the Republic to grant dispensations from age for grave reasons."¹ - The cause most frequently invoked is the pregnancy of the woman: malice has supplied age.

¹ Code civil, art. 144-145.

(B) Defect of consent. (a) "There is no marriage when there is no consent."²

² Art. 146.

(b) Now error concerning the person invalidates consent: "When there has been error in the person, the marriage can be attacked only by that one of the two spouses who was induced into error. - In the case of the preceding article, the petition for nullity is no longer receivable whenever there has been continued cohabitation for six months after the spouse acquired his full liberty, or after the error was recognized by him."³

³ Code civil, art. 180-181.

(c) Likewise perpetual insanity, by force of art. 489: "The major who is in an habitual state of imbecility, dementia, or fury must be interdicted, even when this state presents lucid intervals."

(d) And also force and fear: "Thus a young man surprised in flagrant delict with a young girl promises to marry her, and in fact marries her, under the influence of a threat of death which is made to him by the father of the young girl. The spouse subjected to violence can demand the nullity of the marriage." - "Abduction is no longer today, as formerly, a diriment impediment of marriage. Only the abducted person can cause the nullity of the marriage which she had contracted with her abductor to be pronounced, if she succeeds in demonstrating that her consent was not free."⁴

⁴ Baudry-Lac. nn. 588, 590.

(e) Bond: "One cannot contract a second marriage before the dissolution of the first." - "Marriage is dissolved: 1° by the death of one of the two spouses; 2° by divorce legally pronounced." - "A woman cannot contract a new marriage except after 300 completed days from the dissolution of the preceding marriage." - "A divorced woman can remarry immediately after the transcription of the judgment or decree which pronounced the divorce, if nevertheless 300 days have already elapsed since there intervened, in the instance which led to the divorce, the ordinance which authorized the petitioner spouse to have a separate residence." (Law of August 9, 1919.)

⁵ Code civil, art. 147, 227, 228, 296. - Bond is indeed a diriment impediment, but the prohibition of marrying before ten months from the dissolution of the prior marriage is only impedient. - Besides, bigamy is punished by grave penalties. (Code penal, art. 340.)

n. 1124.

(C) Defect of the consent of parents: (a) "The son and the daughter who have not attained the age of twenty-one completed years cannot contract marriage without the consent of their father and mother. In case of dissent, the consent of the father suffices. - If one of the two is dead, or if he is in the impossibility of manifesting his will, the consent of the other suffices. - If the father and the mother are dead, or if they are in the impossibility of manifesting their will, the grandfathers and grandmothers replace them. If there is dissent between the two lines, this division shall carry consent."¹

¹ Code civil, art. 148-150.

(b) "Children who have attained the age of twenty-one completed years and up to the age of thirty completed years are bound to justify the consent of their father and mother. In default of this consent, the interested party shall have notified, in the forms foreseen in article 154, the projected union to his father and mother or to that one of the two whose consent has not been obtained. Thirty clear days after justification of this notification, one shall proceed to the celebration of the marriage."²

² Art. 151.

(c) "If there is dissent between parents divorced or separated from bed and board, the consent of that one of the two spouses in whose favor the divorce or separation shall have been pronounced and who shall have obtained the custody of the child shall suffice. For lack of uniting these two conditions, that one of the father and mother who shall consent to the marriage can cite the other before the Tribunal of first instance sitting in the Chamber of Council; the competent Tribunal shall be that of the person who has the custody of the child; it shall decide in public audience and in last resort."³

³ Art. 152.

(d) "The notification prescribed by article 151 shall be made at the request of the interested party by a notary acting without the concurrence of a second notary or of witnesses. This act, visaed for stamp and registered gratis, shall state the given names, names, professions, domiciles, and residences of the future spouses, of their fathers and mothers, as well as the place where the marriage shall be celebrated. It shall also contain a declaration that this notification is made to them in view of obtaining their consent and that, in default of it, one shall proceed to the celebration of the marriage at the expiration of the period of thirty clear days."⁴

⁴ Art. 154.

(e) "The natural child legally recognized who has not attained the age of 21 completed years cannot contract marriage without having the consent of that one of his father and mother who recognized him or of the one and the other if he was recognized by both. - In case of dissent, the consent of the parent who shall exercise paternal power suffices. If one of the two is dead or if he is in the impossibility of manifesting his will, the consent of the other suffices.⁵ The dispositions contained in articles 151, 153, 154, and 155 are applicable to the natural child after the age of 21 completed years. - The natural child who has not been recognized, and that one who, after having been recognized, has lost his father and mother, or whose father and mother cannot manifest their will, cannot, before the age of twenty-one completed years, marry except after having obtained the consent of the Family Council."¹

⁵ Art. 158, modified by the law of March 10, 1913.

¹ Art. 159.

(f) "If there is neither father nor mother, nor grandfathers nor grandmothers, or if they all find themselves in the impossibility of manifesting their will, sons or daughters minor of twenty-one years cannot contract marriage without the consent of the Family Council." - The minor of 21 years who would be ignorant of the place of the death or of the domicile of those of his ascendants whose consent is required for his marriage shall swear that the place of the death or that of the last domicile of his ascendants is unknown to him.²

² Art. 160, modified by the law of 1913.

n. 1125.

(D) Kinship and affinity: (a) "In the direct line, marriage is prohibited between all legitimate or natural ascendants and descendants, and affines in the same line."³

³ Art. 161. - Affinity does not cease by the death of the spouse who produced it.

(b) "In the collateral line, marriage is prohibited between brother and sister, legitimate or natural. It is prohibited between affines in the same degree when the marriage which produced the affinity has been dissolved by divorce (Law of July 1, 1914). - Marriage is also prohibited between uncle and niece, aunt and nephew. - Nevertheless it is permitted to the President of the Republic to lift, for grave causes, the prohibitions carried by article 162 concerning marriages between brothers-in-law and sisters-in-law, and by article 163 concerning marriages between uncle and niece, aunt and nephew."⁴

⁴ Art. 162-164. - Jurisprudence admits more and more that art. 163 also opposes marriage between the great-uncle and the grand-niece, the great-aunt and the grand-nephew. Cf. Baud. Lac. n. 523. But the Court of Cassation judges that marriage is permitted between an uncle and his natural niece, just as between an aunt and her natural nephew.

(c) "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children who could come to the adopter later; between the adopted and the spouse of the adopter, and reciprocally between the adopter and the spouse of the adopted."⁵

⁵ Art. 348.

(E) Defect of legal solemnity: (a) "The declaration of the parties which establishes their free and voluntary consent; and that of the officer of the civil state, who pronounces in the name of the law that the conjugal union is formed, are substantial formalities without the fulfillment of which there could not be marriage."⁶

⁶ Court of Cassation, ap. Baud. Lac., n. 582, 3°.

(b) "Every marriage which has not been contracted publicly, and which has not been celebrated before the competent public officer, can be attacked by the spouses themselves, by the father and mother, by the ascendants, and by all those who have a born and actual interest, as well as by the public ministry."¹

¹ Art. 191. - "Every contravention of the rules concerning publicity does not necessarily render the marriage null as clandestine. The judge has here a power of appreciation which does not belong to him for the other causes of nullity." (Baud. Lac., n. 627). - "The incompetence of the officer of the civil state who has celebrated a marriage does not necessarily entail its nullity... The judge is invested with a discretionary power to appreciate the gravity of the violation, whether of the rules of competence or of the rules of publicity." (Baud. Lac., n. 630).

n. 1126.

From this it follows that there are some canonical impediments which are not acknowledged by civil law; such are impotence, spiritual kinship, public honesty, disparity of cult, vow, order², crime, abduction, clandestinity. Yet if impotence is such that the sex of the person cannot be determined, the marriage can be declared null. Likewise, if an abducted person can prove that her consent was extorted by force by the abductor, the marriage is invalidated. But other impediments which are admitted are not understood in the same way by civil law and by canon law; besides, there are civil impediments, such as the consent of parents, which the Church does not have as diriment. To this priests must pay attention, lest a marriage be readily contracted valid in the civil forum and invalid in the ecclesiastical forum, or vice versa.

² On February 26, 1878, the Court of Cassation had judged that priesthood is a diriment impediment of marriage; a decree of the same Court, dated January 25, 1888, rendered a contrary decision. Cf. Baud. Lac., n. 529.

n. 1127.

5° On full divorce. (A) The causes of divorce: (a) "The husband can demand divorce on account of adultery of his wife. - The wife can demand divorce on account of adultery of her husband."³

³ Art. 229-230.

(b) "The spouses can reciprocally demand divorce for excesses, acts of cruelty, or grave injuries of one of them toward the other."⁴

⁴ Art. 231. - By exces one must understand attacks brought by one spouse against the life of his consort or acts placing the life of the latter in danger. By grave injuries one understands only those which are the manifest expression of an evil, deliberate, and permanent sentiment.

(c) "The condemnation of one of the spouses to an afflictive and infamous penalty shall be for the other spouse a cause of divorce."⁵

⁵ Art. 232.

(d) "When separation from bed and board shall have lasted three years, the judgment can be converted into a judgment of divorce upon the petition formed by one of the spouses."⁶

⁶ Art. 310. Cf. Baud. Lac., 798-893.

(B) The procedure of divorce is clearly indicated in articles 234-252; the effects in articles 295-304. Article 298 is abrogated, which established a kind of diriment impediment: "In the case of divorce admitted in court on account of adultery, the guilty spouse can never marry his accomplice."

n. 1128.

6° On semi-full divorce. (a) "In the case where there is place for a petition for divorce, it shall be free to the spouses to form a petition for separation from bed and board."¹

¹ Art. 306.

(b) "Separation from bed and board always entails separation of goods. It has besides the effect of restoring to the woman the full exercise of her civil capacity, without her needing to have recourse to the authorization of her husband or of justice."²

² Art. 311. Law of February 6, 1893, completing this article.

IV. Principal Italian Civil Laws concerning Marriage.

n. 1129.

1° On betrothals. (a) "The mutual promise of future marriage produces no legal obligation to contract it, nor to execute what may have been agreed for the case of non-fulfillment of the same. - (b) If the promise was made by public act or by private writing by one who is of age, or by a minor authorized by the persons whose concurrence is necessary for the celebration of marriage, or if it appears from the publications ordered by the officer of the civil state, the promisor who refuses to execute it without just motive is obliged to compensate the other party for the expenses made on account of the promised marriage. The demand, however, is no longer admissible after one year from the day on which the promise ought to have been executed."³

³ Cod. civile, art. 53-54.

n. 1130.

2° On the celebration of marriage. (a) "The celebration of marriage must be preceded by two publications to be made under the care of the officer of the civil state. - The publications must be made in the commune in which each of the spouses has his residence. If the present residence has lasted for less than one year, the publications must also be made in the commune of the preceding residence. The publications are made at the door of the communal house on two successive Sundays. The act shall remain posted in the interval between one publication and the other, and for three following days. - Marriage cannot be celebrated before the fourth day from the last publication. - The publications are considered as not having occurred, if the marriage is not celebrated within the term of the one hundred eighty following days."⁴

⁴ Art. 70-72, 76-77.

(b) "Marriage must be celebrated in the communal house and publicly before the officer of the civil state of the commune where one of the spouses has his domicile or residence. - On the day indicated by the parties, the officer of the civil state, in the presence of two witnesses, even relatives, shall read to the spouses articles 130, 131, and 132 of this title; he shall receive from each of the parties personally, one after the other, the declaration that they wish respectively to take each other as husband and wife, and immediately thereafter he shall pronounce in the name of the law that they are united in marriage. - The declaration of the spouses that they take each other respectively as husband and wife cannot be subjected either to a term or to a condition."¹

¹ Art. 93-95.

(c) "Marriage performed in a foreign country between citizens, or between a citizen and a foreigner, is valid, provided that it is celebrated according to the forms established in that country, and the citizen has not contravened the dispositions contained in the second section of the first chapter of this title. The publications must also be made in the kingdom according to the norm of articles 70 and 71. If the citizen spouse has no residence in the kingdom, the publications shall be made in the commune of the last domicile. - The citizen who has contracted marriage in a foreign country must, within three months from his return into the kingdom, have it inscribed in the registers of the civil state of the commune where he shall have fixed his residence, under penalty of a fine extendable to one hundred lire."²

² Art. 100-101.

n. 1131.

3° On the mutual rights and offices of spouses. "Marriage imposes upon the spouses the reciprocal obligation of cohabitation, fidelity, and assistance. - The husband is head of the family: the wife follows his civil condition, assumes his surname, and is obliged to accompany him wherever he believes it opportune to fix his residence. - The husband has the duty of protecting the wife, of keeping her with himself, and of supplying her all that is necessary for the needs of life in proportion to his substance. The wife must contribute to the maintenance of the husband, if he does not have sufficient means. - The obligation of the husband to supply aliment to the wife ceases when the wife, having withdrawn without just cause from the conjugal domicile, refuses to return there."³

³ Art. 130-133.

n. 1132.

4° On the impediments of marriage. (a) "A man cannot contract marriage before he has completed eighteen years, nor a woman before she has completed fifteen years."⁴

⁴ Art. 55.

(b) "He who is bound by a preceding marriage cannot contract other nuptials."⁵

⁵ Art. 56.

(c) "A woman cannot contract a new marriage except after ten months have elapsed from the dissolution or from the annulment of the preceding marriage, excepting the case expressed in article 107 (impotence). This prohibition ceases from the day on which the woman has given birth."⁶

⁶ Art. 57.

(d) "In the direct line marriage is forbidden between all legitimate or natural ascendants and descendants and the affines of the same line. - In the collateral line marriage is forbidden 1° between sisters and brothers, legitimate or natural, 2° between affines in the same degree, 3° between uncle and niece, aunt and nephew."¹

¹ Art. 58-59.

(e) "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same person; between the adopted and the children born later to the adopter; between the adopted and the spouse of the adopter, and between the adopter and the spouse of the adopted."²

² Art. 60.

(f) "Those interdicted on account of infirmity of mind cannot contract marriage."³

³ Art. 61.

(g) "He who in criminal judgment was convicted as guilty party or accomplice of voluntary homicide committed, failed, or attempted upon the person of one of the spouses cannot be united in marriage with the other spouse."⁴

⁴ Art. 62.

(h) "The son who has not completed twenty-five years, the daughter who has not completed twenty-one years, cannot contract marriage without the consent of the father and mother. If the parents are discordant, the consent of the father is sufficient. If one of the parents is dead or in the impossibility of manifesting his own will, the consent of the other is enough. For the marriage of an adoptive son who has not completed twenty-one years, besides the consent of the parents, the consent of the adopter is necessary. - If the father and the mother should be dead or in the impossibility of manifesting their will, minors of twenty-one years cannot contract marriage without the consent of the grandfathers and grandmothers: if the grandfather and grandmother of the same line are discordant, the consent of the grandfather is enough. Disagreement between the two lines is equivalent to consent. - If there exist no parents, nor adopter, nor grandfathers nor grandmothers, or if none of these is in the possibility of manifesting his own will, minors of twenty-one years cannot contract marriage without the consent of the family council."⁵

⁵ Art. 63-65.

(i) "A marriage contracted in contravention of articles 55, 56, 58, 59, 60, and 62 can be impugned by the spouses, by the nearest ascendants, by the public minister, and by all those who have a legitimate and actual interest in it. By the same persons the marriage celebrated before an incompetent officer of the civil state or without the presence of the required witnesses can be impugned. After one year has elapsed from the celebration of the marriage, the demand of nullity for incompetence of the officer of the civil state is no longer admitted."⁶

⁶ Art. 104.

(j) "Marriage can be impugned by that one of the spouses whose consent was not free. When there was error in the person, the action of nullity can be promoted by that one of the spouses who was induced into error. - The demand of nullity for the causes expressed in the preceding article is no longer admissible if there was continued cohabitation for one month after the spouse recovered his full liberty or knew the error."¹

¹ Art. 105-106.

(k) "Manifest and perpetual impotence, when it is prior to marriage, can be proposed as a cause of nullity by the other spouse."²

² Art. 107.

n. 1133.

5° On separation from bed and board. (a) "Separation can be demanded on account of adultery and voluntary abandonment, and on account of excesses, cruelty, threats, and grave injuries. An action for separation on account of the adultery of the husband is not admitted, except when he keeps a concubine in the house or notoriously in another place, or when circumstances concur such that the fact constitutes a grave injury to the wife. - Separation can also be demanded against the spouse who has been condemned to a criminal penalty, except in the case that the sentence is prior to the marriage and the other spouse was aware of it. - The wife can ask separation when the husband, without any just motive, does not fix a residence, or, having the means, refuses to fix it in a manner suitable to her condition."³

³ Art. 150-152.

(b) "Reconciliation extinguishes the right of asking separation; it also induces the abandonment of the demand which had been proposed."⁴

⁴ Art. 153.

Up to this time no full divorce is permitted.

V. Principal Civil Laws concerning Marriage in Germany.

N.B. "§ 1588. Ecclesiastical obligations in respect to marriage are not touched by the prescriptions of this section."

⁵ A summary of the new civil law concerning matrimonial matters, in force in Germany, is to be read ap. Pelt, Canoniste, XXIII, 1900, p. 321-331.

n. 1134.

1° On betrothals. "§ 1297. From a betrothal one cannot sue for entering into marriage. The promise of a penalty for the case that entry into marriage does not take place is null."

n. 1135.

2° On the impediments of marriage. (A) Diriment impediments. (a) Defect of solemnity: "§ 1324. A marriage is null, if at the celebration of marriage the form prescribed in § 1317 has not been observed. If the marriage has been entered in the marriage register and the spouses, after the celebration of marriage, have lived with each other as spouses for ten years, or, if one of them died before, until his death, yet at least three years, then the marriage is to be regarded as valid from the beginning. This prescription finds no application if, at the expiration of the ten years or at the time of the death of one spouse, the action of nullity has been brought."

(b) Defect of capacity: "§ 1325. A marriage is null if one of the spouses at the time of the celebration of marriage was incapable of transacting business or was in a state of unconsciousness or of a passing disturbance of mental activity. - The marriage is to be regarded as valid from the beginning if the spouse confirms it after the removal of the incapacity of transacting business, the unconsciousness, or the disturbance of mental capacity, before it has been declared null or dissolved. The confirmation does not need the form prescribed for the celebration of marriage."

(c) Bond: "§ 1326. A marriage is null if one of the spouses at the time of the celebration of marriage was living with a third party in a valid marriage."

(d) Consanguinity and affinity: "§ 1327. A marriage is null if it has been contracted between relatives or affines contrary to the prohibition of § 1310, paragraph 1."

(e) Crime: "§ 1328. A marriage is null if it was prohibited because of adultery according to § 1312. If afterward liberation from the prescription of § 1312 is granted, then the marriage is to be regarded as valid from the beginning."

(f) Defect of age: "§ 1331. A marriage can be contested by the spouse who, at the time of the celebration of marriage, or in the case of § 1325 at the time of confirmation, was restricted in capacity for transacting business, if the celebration of marriage or the confirmation occurred without the consent of his legal representative."

(g) Error and fraud: "§ 1332. A marriage can be contested by the spouse who, at the celebration of marriage, did not know that it was a matter of a celebration of marriage, or who indeed knew this, but did not wish to give a declaration that he wished to enter marriage. - § 1333. A marriage can be contested by the spouse who at the celebration of marriage erred concerning the person of the other spouse or concerning such personal qualities of the other spouse as, with knowledge of the state of the matter and with an intelligent weighing of the essence of marriage, would have kept him from entering marriage. - § 1334. A marriage can be contested by the spouse who was determined to enter marriage by fraudulent deception concerning such circumstances as, with knowledge of the state of the matter and with an intelligent weighing of the essence of marriage, would have kept him from entering marriage. If the deception was not perpetrated by the other spouse, then the marriage is contestable only if this one knew the deception at the celebration of marriage. Contestation does not take place on the ground of a deception concerning property relations."

(h) Fear: "§ 1335. A marriage can be contested by the spouse who was unlawfully determined to enter marriage by threat."

N.B. "§ 1343. If a contestable marriage is contested, it is to be regarded as null from the beginning.

"The nullity of a contestable marriage which has been contested by way of action cannot, so long as the marriage has not been declared null or dissolved, be asserted in any other way."

n. 1136.

(B) Impedient impediments. (a) Defect of age: "§ 1303. A man may not enter marriage before the entrance of majority, nor a woman before the completion of the 16th year of life. - Liberation from this prescription can be granted to a woman."

(b) Defect of the consent of parents: "§ 1305. A legitimate child, until the completion of the twenty-first year of life, needs the consent of the father for entering marriage; an illegitimate child, until the same age of life, needs the consent of the mother. The mother takes the place of the father if the father is dead or if the rights arising from paternity according to § 1701 do not belong to him. A child declared legitimate does not need the consent of the mother even if the father is dead. - It is equivalent to the death of the father or of the mother if they are permanently incapable of giving a declaration or if their residence is permanently unknown."

(c) Illicit affinity and consanguinity: "§ 1310, 2°. A marriage may not be contracted between persons of whom one has had sexual intercourse with parents, ancestors, or descendants of the other.

"§ 1310, 3°. Relationship in the sense of these prescriptions exists also between an illegitimate child and his descendants on the one side, and the father and his relatives on the other side."

(d) Legal kinship: "§ 1311. He who has adopted another in the place of a child may not enter marriage with him or his descendants so long as the juridical relation founded by the adoption exists."

(e) Certain special matters concerning widows, minors, soldiers, banns: "§ 1313. A woman may enter a new marriage only ten months after the dissolution or declaration of nullity of her former marriage, unless she has meanwhile given birth. Liberation from this prescription can be granted.

"§ 1314. Whoever has a legitimate child who is a minor or who stands under his guardianship may enter a marriage only after the guardianship court has given him a certificate that he has fulfilled the obligations designated in § 1669 or that they are not incumbent upon him. - If, in the case of continued community of goods, a descendant entitled to a share is a minor or under guardianship, the surviving spouse may enter a marriage only after the guardianship court has given him a certificate that he has fulfilled the obligations designated in § 1493, paragraph 2, or that they are not incumbent upon him.

"§ 1315. Military persons or such state officials for whom, according to the laws of the state, a special permission is required for entering marriage, may not enter marriage without the prescribed permission.

"Foreigners for whom, according to the laws of the state, a permission or certificate is required for entering marriage may not enter marriage without this permission or without this certificate.

"§ 1316. The celebration of marriage ought to be preceded by a bann. The bann loses its force if the marriage is not contracted within six months after the execution of the bann.

"The bann may be omitted if the life-threatening illness of one of the betrothed does not permit delay of the celebration of marriage.

"Liberation from the bann can be granted."

n. 1137.

3° On divorce. (a) Adultery, bigamy, and the sin of impurity against nature are a sufficient cause of divorce, provided nevertheless that the other spouse has not consented to or cooperated in these crimes: "§ 1565. A spouse can sue for divorce if the other spouse makes himself guilty of adultery, or of an act punishable according to §§ 171, 175 of the penal code.

"The right of the spouse to divorce is excluded if he consents to the adultery or to the punishable act, or makes himself guilty of participation."

(b) "§ 1566. A spouse can sue for divorce if the other spouse seeks after his life."

(c) "§ 1567. A spouse can sue for divorce if the other spouse has maliciously deserted him. Malicious desertion is present only: 1° if a spouse, after he has been condemned by final judgment to restore domestic community, for one year has not obeyed the judgment, against the will of the other spouse, with malicious intention; 2° if a spouse, for one year, against the will of the other spouse and with malicious intention, has kept himself away from the domestic community and the prerequisites for public service against him have existed for a period of one year. - Divorce is inadmissible in the case of paragraph 2, n. 2, if the prerequisites for public service no longer exist at the close of the oral hearing on which the judgment is issued."

(d) "§ 1568. A spouse can sue for divorce if the other spouse, by grave violation of the duties founded by marriage, or by dishonorable or immoral behavior, has culpably caused so deep a disturbance of the conjugal relation that the continuation of the marriage cannot be expected of the spouse. Gross ill-treatment also counts as a grave violation of duties."

(e) "§ 1569. A spouse can sue for divorce if the other spouse has fallen into mental illness, the illness has lasted at least three years during the marriage and has reached such a degree that the spiritual community between the spouses has been removed, and every prospect of restoration of this community is also excluded.

N.B. "§ 1570. The right to divorce ceases in the cases of §§ 1565 to 1568 by pardon."

"§ 1571. The action for divorce must be brought, in the cases of §§ 1565 to 1568, within six months from the time at which the spouse obtains knowledge of the ground of divorce. The action is excluded if ten years have elapsed since the occurrence of the ground of divorce. The period does not run so long as the domestic community of the spouses is removed. If the spouse entitled to the action is summoned by the other spouse either to restore the domestic community or to bring the action, then the period runs from the receipt of the summons. The citation to the term of reconciliation is equivalent to bringing the action. The citation loses its effect if the spouse entitled to the action does not appear at the term of reconciliation, or if three months have elapsed after the end of the reconciliation procedure and the action has not previously been brought. To the running of the six-month and the three-month period the prescriptions of §§ 203, 206, applying to prescription, are correspondingly applied."

n. 1138.

4° On separation as to bed and habitation. "§ 1575, 1° The spouse who is entitled to sue for divorce can, instead of divorce, sue for removal of the conjugal community. If the other spouse petitions that the marriage, if the action is founded, be dissolved by divorce, then judgment is to be given for divorce.

"§ 1586. If, according to § 1575, the conjugal community is removed, then the effects connected with divorce enter in, yet the entering of a new marriage is excluded. The prescriptions concerning the nullity and contestability of marriage find application as if the judgment had not been issued.

"§ 1575, 2° For the action for removal of the conjugal community the prescriptions of §§ 1573-1574 hold. - § 1576. If judgment has been given for removal of the conjugal community, then each of the spouses can, on the ground of the judgment, petition for divorce, unless after the issuing of the judgment the conjugal community has been restored. The prescriptions of §§ 1570 to 1574 find no application; if the marriage is dissolved by divorce, then the spouse declared guilty is to be declared guilty also in the judgment of divorce."

n. 1139.

We conclude the exposition of civil law and the Treatise on Marriage with these words of Leo XIII¹: "Since these things are so, all governors and administrators of public affairs, if they had wished to follow reason, wisdom, and the very utility of peoples, ought to have preferred that the sacred laws concerning marriage remain untouched, and to have employed the assistance offered by the Church for the protection of morals and the prosperity of families, rather than to call the Church herself into suspicion of enmity, and into a false and unjust accusation of violated civil right."

¹ Encycl. Arcanum.

Vermeersch, What Is Marriage?

Arthur Vermeersch, S.J. — 9 passages

Vermeersch, What Is Marriage?, Part Two: The Attack on Ma…, The Campaign Against the Sacrament

n. 140.

In What Direction Is the Principal Effort of the Enemies of Christian Marriage Put Forth?

According to the Encyclical the principal attack is against marriage as a Sacrament. The Holy Father says:¹ And now considering that the third blessing, which is that of the Sacrament, far surpasses the other two, we should not be surprised to find that this, because of its outstanding excellence, is much more sharply attacked by the same people.

¹ P. 45.

n. 141.

By What Tactics?

By tactics in which we can distinguish three steps: the denial of the sacred character of marriage; the assault upon its indissolubility; and the relegation of marriage to the rank of profane and civil affairs.

n. 142.

How Is the Denial of the Sacred Character of Marriage Formulated?

By regarding the marriage which is called civil as the real marriage, which can later be supplemented by a religious ceremony, a nuptial blessing, which is in no way essential.¹

¹ Pp. 45, 46.

n. 143.

Is it Impossible for the Civil Ceremony to Be the True Nuptial Contract?

It is impossible in this sense, that the declaration of a civil magistrate can never form the bond, whose only efficient cause is the exchange of consent by the two parties themselves. For non-baptized persons the civil contract may be the real contract in this sense that the competent authority — and according to a common opinion, that is, for those cases, the civil authority — can require on pain of nullity that the exchange of consent be given in the presence of a civil magistrate and two witnesses; just as the Church, since the Council of Trent, and now under the Code of Canon Law, requires on pain of nullity for marriages between two Catholics and between a Catholic and a non-Catholic, that the exchange of consent be given regularly in the presence of an authorized priest and two witnesses. We say this is required regularly, because the Code provides for certain cases in which the marriage may be validly contracted before any two witnesses, without the presence of a priest.

n. 144.

Is it Not the Nuptial Blessing Which Is the Sacred Element in a Marriage?

Although the nuptial blessing is a sacred ceremony, which, through the prayer of the Church, is a means of actual graces, yet it does not constitute the sacred element which is essential to marriage.

n. 145.

Where Is That Element?

It is in the mutual consent of the parties to the marriage.

n. 146.

Is the Sacred Character Peculiar to Christian Marriage?

A marriage between Christians is the only marriage which is a Sacrament; but in a lower degree every marriage contains something sacred, “put there,” says Leo XIII, “by nature herself.”

n. 147.

How Do You Prove That This Sacred Element Exists in Every Marriage?

We prove it from the unanimous consent of the peoples who have introduced a religious rite into the conjugal union; from the Divine origin of the institution of marriage; from

the end of marriage, which is to bring up for God the children that may be born, and to lead the spouses themselves to God by the mutual help which they give each other; finally from the mysterious alliance between God and the spouses in human generation, God creating and infusing the spiritual soul into the body prepared by the parents.¹ Leo XIII adds this more profound supernatural reason: “because marriage was from the beginning like an image of the Incarnation of the Word of God” (Encyclical "Arcanum”). The sacramental character gives besides to Christian marriage a new dignity or nobility in which the Apostle St. Paul recognizes a great mystery in Christ and in the Church (Ephes. v. 32). The conjugal community cannot derive entirely from the created natural order, either its end or its means. Its principal end, the generation of children, cannot be attained unless God, the Creator of the spirit, intervene in the paternal function and complete it by the creation of the soul. By that very fact, marriage, even in its natural reality, overflows the confines of this world and surpasses the forces of this world. From this point of view alone, every marriage is a mystery. Then, consider its interior structure. We find there a sensible, corporal side, and a moral, spiritual side. Inasmuch as it is placed in the sphere of the senses, marriage is in danger of losing itself by sinking into animality. It must cry for help from above to escape from the preponderance of the corporal element. On its moral and spiritual side, it is more than a simple alliance of mind and heart; it implies the mutual self-surrender of two persons destined to be welded together in one flesh, a thing, which is done in all security and purity only with the Divine good pleasure. Hence, even a purely natural marriage possesses a mystic character, and is a sacred and holy thing. According to the admirable expression of Leo XIII it is a foreshadowing of the Incarnation of the Son of God. Nowhere is man less autonomous than in marriage. Autonomy, by cutting the secret roots of its life, its special relation to God, makes marriage unrecognizable, reduces it to nothing.² What shall we say now of the supernatural elevation of Christian marriage by the sacramental character with which

Christ has endowed the consent which gives it birth? What shall we say of the mission which belongs as a consequence to Christian spouses to represent by their union and love the Union of Christ and His Church? Listen to this exhortation which the Ritual used in Germany addresses to the bride and groom in the ceremony of marriage: Just as Christ never abandons His Church, so you must never forsake each other, but ever remain faithfully united until death. And just as Christ sanctifies His Church, so too each of you should work for the sanctification of the other. As Christ loves His Church, and protects and cares for her, so the husband should love his wife, and protect her, and care for her with fidelity even unto the sacrifice of self; and as the Church is subject to Christ as to her head, so too the wife should obey her husband in all that is necessary, right, and fitting. And both should, in faithful unity, raise their children for Christ and for His holy Church. Consequently, as Dr. Riedel observes,³ the Sacrament of matrimony confers on the partners a grace which perfects their natural love, a grace which cements their indissoluble unity, which helps them to sanctify each other, and enables them to fulfil their duty in regard to their children.

¹ Pp. 46, 47.

² These thoughts are borrowed almost literally from the fine address which Mr. Karl Adam delivered at the general assembly of German Catholics held at Freiburg in Brisgau in 1929. It was published by Herder under the title, Die Sakramentale Weihe der Ehe.

³ Brautunterricht, p. 3 (Herder, 1929).

n. 148.

Why Do You Ascribe the Sacramental Character to “Marriage Between Christians” and not Only to Marriage Between Catholics?

Because marriage between Christians whom heresy or schism has separated from the true and only Catholic Church, is a Sacrament just as much as that between Catholics, provided the parties have been validly baptized.

Vermeersch, On Chastity

Arthur Vermeersch, S.J. — 47 passages

Ch. II, Art. III, § 2, I. On Civil Marriage

n. 120.

An improper notion of civil marriage.

120. - By an improper usage, a marriage can be called civil when, in addition to the value which it has before God, civil protection and effects have been attributed to it. In this sense, in Spain and Ireland, a religious marriage, since it is sanctioned by law, could be called civil.

n. ¶634.

You would also improperly call civil a marriage which is contracted before a civil official without a priest, when and where, by ecclesiastical law itself, it is contracted in this way at least validly or even licitly. Before the decree Tametsi, in the Middle Ages, not a few marriages were celebrated before a notary ¹, nor was the Council of Trent far from admitting a notary as a necessary witness, being content with public celebration alone. And now canon 1098 of the new Code permits celebration without a pastor or priest, under certain conditions, because of necessity or in order to avoid a grave inconvenience.

¹ On this notion and the whole subject of civil marriage, compare Wernz, vol. 4, nos. 200-206.

n. ¶635.

The proper notion,

But, properly speaking, civil marriage is said to be that which, with every religious consideration neglected, depends in its existence and in its effects upon the form and conditions prescribed by civil law.

n. ¶636.

and its various rationale.

Now the law can merely offer this marriage to those who want it, or impose it either upon all or upon those who are not Christians or who live alienated from religion. Hence civil marriage is optional, necessary, or subsidiary.

n. ¶637.

The law itself can be enacted from a philosophical thesis, because the civil ruler is held to possess an innate competence to establish it; or by way of a practical settlement by which, every question of right having been set aside, on account of religious and philosophical dissensions it is agreed among the dissenting parties that civil protection and rights should adhere to this artificial institution (concerning which each person may think whatever he pleases). A law of this kind is then part of that civil toleration which, although by no means desirable in itself, can be observed in order to avoid greater evils or obtain a greater good. Compare the letter of Leo XIII, Immortale Dei, November 1, 1885.

n. 121.

Historical summary.

121. - The foundation of an institution of this kind was laid by Luther, through his doctrines by which, after denying the sacred nature of marriage, he subjected even the matrimony of Christians fully to rulers. But it was first established in Holland and Friesland by the law of April 1, 1580, when there was a retreat from the excessive harassment of Catholics and of others who dissented from the Calvinist sect. For the option was given to all these either to celebrate marriages before a Calvinist minister or before a civil magistrate. In the year 1656 this law was extended to all the federated States of Holland, and it remained in force there until, in 1795, the French regime prevailed also in Holland and Belgium. In England, the law of August 24, 1653, subsequently promulgated for Scotland and Ireland, commanded that all contract civilly. Yet the fortune of the institution in that region was various, so that now, since the years 1826-1836, milder laws are in force there than in most other parts of Europe. For under the law of 1836 the option is given of celebrating marriage either before a minister of one's own religion (Anglican or dissenting) or before a civil magistrate alone (a registrar). But in Ireland, under the laws of 1844 and 1863, and in Scotland, under the laws of 1844 and 1863, it is enough that a marriage duly contracted be inscribed in the civil registers. Indeed, this difference now exists between England and Ireland: in Ireland "registration" is commanded only under a penalty, with the validity and efficacy of a Catholic marriage remaining untouched; whereas in England a civil registrar - a character which, however, every Anglican minister at the same time possesses and which a Catholic minister can acquire - must be present at the marriage in order that it may be recognized civilly.

n. ¶638.

A not dissimilar option of contracting either before a suitable minister of religion or before a competent civil magistrate (a justice of the peace) is granted in the United States of North America, although the obligation of procuring registration in the civil records is laid upon the parties.

n. ¶639.

For a long time in France even Protestants had to contract before a Catholic pastor in order to obtain civil effects for their marriage. But the French law of September 20, 1792, commanded the civil celebration of marriage for all. From there it was introduced into Belgium and Holland; and, especially from the year 1848, when it began to be proclaimed as "the palladium of modern liberty and a distinctive mark proper to the liberal State," it invaded very many regions. It has been in force in Italy since 1865 ², in the Austrian Empire since 1868 ³, and throughout Germany since 1875 ⁴; it is sanctioned by article 118 of the Swiss Civil Code of 1907. The Spanish Code of 1889 ⁵ and the Portuguese Code ⁶ of 1867 recognize a twofold marriage: canonical, which all who profess the Catholic faith must contract, and civil for others. But although canonical marriage is of itself governed by canonical laws, nevertheless each law also prohibited certain marriages even for Catholics. Yet not all laws establish what the fundamental law of Belgium requires, that the civil ceremony precede the religious celebration. Thus the Italian Code does not require it.

² Civil Code, article 93.

³ Law of May 25, 1868.

⁴ Code, articles 1317-1318.

⁵ Civil Code, article 42 and following.

⁶ Civil Code, article 1057 and following.

n. ¶640.

Therefore, religious toleration introduced the institution of civil marriage; political secularism, or secular intolerance, imposed it upon unwilling Catholics.

n. 122.

Defense.

122. - 1. They attempt to defend the institution of civil marriage juridically and philosophically by various arguments. Some, especially certain Catholics, separating the contract from the sacrament, considered matrimony, insofar as it is a contract, subject to the civil power. And because they thought that the sacrament acceded to a valid contract as its form, they concluded that the civil power was able by its law efficaciously to prevent the conferral of the sacrament. This error of theologians, rejected many years ago ⁷, is also rejected by canon 1012 of the Code of Canon Law, in these words: "Christ the Lord raised the very matrimonial contract between the baptized to the dignity of a sacrament."

⁷ Compare Denzinger, Enchiridion, nos. 1766, 1773, and 1854, and the dogmatic treatises on matrimony, for example, Franzelin, Palmieri, and Huarte, S.J.

n. ¶641.

2. Others, abusing an adulterated notion of a mixed question ⁸, claim for the State the full right to govern all matters which contribute to the public utility of the State.

⁸ Compare the dogmatic treatises on the Church or the canonical treatises on ecclesiastical public law.

n. ¶642.

3. Finally, others appeal to principles concerning the complete independence of the State from the Church, the separation of Church and State, and the equal indifference of the State toward all religions; or they even reduce religion to private matters, after denying its social constitution. Religion, according to them, is a private opinion to which the State must show only so much reverence as can be reconciled with its own care of the common good.

n. ¶643.

And they pronounce their opinion in a very absolute manner. "Citizens," says Laurent, the celebrated professor of Ghent, "belong to the fatherland independently of every religion: it is therefore for the civil law to establish their status" ⁹.

⁹ Cours de droit civil, II, 262, 265.

n. ¶644.

The magistrate De Meulenaere, although he is far less averse to the Catholic Church, speaks no less absolutely: "Civil marriage has entered absolutely into the customs of the countries governed by the Napoleonic Code... its necessity needs no justification" ¹⁰.

¹⁰ Code civil allemand et loi d'introduction, traduits et annotés, on article 1317.

n. 123.

Moral judgment on the matter.

123. - The antiquated error of Catholics concerning civil marriage as the matter of the sacrament having been omitted, truth requires that we judge briefly as follows concerning the civil marriage of more recent philosophers or jurists:

n. ¶645.

1. Civil marriage, insofar as it has been substituted in place of religious celebration, contains a profanation of matrimony which, being opposed to the truth of the matter ¹¹ and contrary to reverence for marriage, is very greatly opposed to the common good of families and of human society.

¹¹ Compare what was said above concerning the sacred nature of matrimony, no. 108.

n. ¶646.

2. Insofar as it is part of a more universal plan of "secularizing" minds, morals, and customs, it contains an impiety harmful to the Church and to religion and most greatly to be detested. For while citizens continually see ecclesiastical laws held in the least account, no present advantage arising from their observance, and no harm arising from their violation, they easily neglect and contemn ecclesiastical authority itself and religion itself, and incline in mind toward indifferentism.

n. ¶647.

Moreover, while that fictitious celebration of marriage before a civil magistrate, who seems to join the spouses in a solemn tone ¹², is constantly presented to the eyes of citizens, and while all efficacy of legitimate matrimony is attributed to that empty ceremony, errors concerning the competence of the civil power are spread and are so confirmed that the Church appears by her decrees concerning matrimony no longer to vindicate her own rights but to usurp those of another. Thus, in Laurent, the Church is represented as raging with an insane ambition to invade another's province. By this means, however, minds are turned away from the Church herself.

¹² In article 1318 of the German Code, they wished in some measure to temper the force of the formula usurped by the civil magistrate by these words: "By force of the law they are henceforth regarded as lawful spouses." Compare De Meulenaere, on article 1318.

n. ¶648.

3. Finally, insofar as it inevitably undermines the estimation and firmness of marriage, this institution, since it is otherwise connected with divorce, is to be abhorred by us more than the civil law of divorce itself.

n. 124.

The prudent manner of acting for Catholics.

124. - It remains now for us to examine what manner of acting is to be recommended to Catholics in this matter.

n. ¶649.

1. First of all, they must especially take care that, on account of a certain secondary advantage of easier and more accurate "registration," they do not become praisers of an institution which almost entirely falls back upon a fiction that is empty in itself and pernicious to the Church and to public morals.

n. ¶650.

We can confidently refute the alleged necessity of uniform and universal registration by showing how easily it can be obtained without this apparatus of a pretended celebration, and how it is obtained in America and England. Have these great republics experienced the necessity of this institution? Is it not enough for attaining this end that a penal law command this registration? As our present customs stand (however matters may have been in the past), no sane person will neglect this registration through which his status is established civilly.

n. ¶651.

2. Since a manner of speaking acts upon the very convictions of the mind, let them also take care that a more accurate usage of words become established.

n. ¶652.

What do we now observe in laws, in written books, and all too often in the announcements of those about to marry? The name of marriage is reserved for the civil ceremony, while religious matrimony is distinguished by the name of a ceremony or of a nuptial blessing ¹³. Therefore, let Catholics abstain from the words "nuptial blessing," and, reversing the manner of speech instead, let them speak of religious matrimony and of the civil solemnity (formalité).

¹³ Thus in the Belgian Constitution itself.

n. ¶653.

3. Let Catholics about to marry remember that they cannot have the intention of contracting true matrimony before the civil magistrate, but that this intention must be reserved for the ecclesiastical celebration ¹⁴.

¹⁴ On the contrary, since the Protestants of Germany regard civil marriage as true marriage, it is inculcated in them that before a minister of religion they should conceive no intention of contracting, but only of declaring the marriage already made. Compare Real-Encyclopaedie für protestantische Theologie und Kirche, V. Ehrenfeucht, vol. 4, p. 79, ed. 1879.

n. ¶654.

You will ask whether this reservation of consent can occasion any civil harm or difficulty for Catholics.

n. ¶655.

This must be denied without hesitation. For the law concerning civil marriage must be reconciled with the fundamental principle of modern law which men alienated from the Catholic faith defend as the palladium of modern emancipation, that is, with the civil toleration of religions and liberty of conscience. If Catholics were not permitted without penalty to will to assume the moral obligations of marriage only when they can assume them honorably, the Catholic religion would in truth be oppressed, far from being freely exercised.

n. ¶656.

Moreover, the consent which Catholics express before the civil magistrate is not merely fictitious. For they truly consent that the civil effects of marriage and the whole civil law (insofar as it is not repugnant to divine law) be applied to their matrimony. This is always sufficient so that the agreement cannot be invalidated on account of the alleged defect of consent. How much more is the same sufficient in this matter, which is so closely connected with civil toleration, as they call it. Otherwise, those who now deny and repudiate every matrimonial bond because they profess the doctrine of free love would be incapable of a valid civil marriage.

n. ¶657.

What of the fact that nullity on account of defective consent ordinarily affords no ground for a public action or for one brought by anyone other than the contracting party himself or those who can act for him?

n. ¶658.

What common sense proclaims we know to be confirmed by the judgment of jurists.

n. ¶659.

Therefore, it is not to be permitted that the liberty of Catholics in this matter be diminished by a certain juridical cunning; rather, every attempt of this kind is to be resisted firmly from the beginning.

n. ¶660.

4. There is indeed no hope at present that the institution of civil marriage will be suppressed. And since there are so many in our States who are alienated from religion, it does not seem that the use of a similar institution can in practice be denied to them. Wherefore it is rather to be attempted that, according to the example of Ireland and the United States of America, the option of either a religious or a civil form be given, with a general precept added that care be taken for contracted marriages to be entered in the public records immediately, or within a brief space of time. It ought also to be among the desires of Catholics that a law of this kind be enacted as though by a common counsel of the Church and the State, or at least with the Holy See approving it in some manner: there is no reason to doubt the consent of the Holy See to a law of this kind.

n. 125.

Are those who wish matrimony to be released from every positive law to be assisted?

125. - You will now ask on this occasion whether it is expedient to favor the plans of those who strive to have matrimony assigned to merely private matters.

n. ¶661.

We doubt it greatly. Certainly, by this road civil marriage will be suppressed, but through an error which departs more greatly from the truth and will exercise a worse efficacy upon morals. Wherefore we rather advise that Catholics defend the public nature of the matrimonial contract, and join themselves as allies to those who wish civil marriage to be preserved in order to protect morals, provided that they are willing to concede to us the faculty of contracting merely religiously. But if they deny this, it will then be better in itself for Catholics to favor and assist neither party.

Ch. III, Appendix. What is to be Observed in Practice concerning Civil Marriage and Civil Divorce

n. 285.

To what extent Catholics can comply with the law concerning civil marriage.

285. - Although the question of civil marriage and civil divorce has its proper place in the treatise on Matrimony, nevertheless, because of the force which institutions of this kind exert upon chastity itself, we discussed each argument theoretically in the former part; it is useful here to say in a few words what Catholics can or ought to do in this matter.

n. ¶1523.

Therefore, Catholics not only can but also must comply with the law concerning civil marriage: both in order that they may obtain civil protection for their marriage celebrated or to be celebrated before the Church and confer upon their offspring the civil benefits of legitimate marriage, and in order that by their voluntary compliance they may take care not to give the civil power a pretext or occasion for promulgating prescriptions which would be more contrary to ecclesiastical laws ¹. Cf. the response of the Holy Office, January 12, 1881; the instruction of the Sacred Penitentiary, January 15, 1886. And the opinion of the doctors is in agreement.

¹ The neglect of certain faithful persons was the occasion for the fundamental law of Belgium to prescribe that "civil nuptials are to be placed before the nuptial blessing."

n. ¶1524.

Nevertheless, they cannot approach the civil magistrate with the intention of attempting to contract a true matrimonial covenant before him; rather, they must wish merely to place their union under civil protection and reserve the intention of celebrating marriage for the day or hour at which they express consent before the minister of the Church.

n. ¶1525.

Moreover, insofar as it can be done, they will impede civil divorce and defend the rights of the Church over the marriages of baptized persons.

n. 286.

What civil magistrates may do.

286. - It is disputed whether or not, in regions where the civil law has introduced divorce, it is lawful for magistrates to apply that law to parties petitioning for it, so that judges render a sentence for divorce and officials designated by law, for example, syndics, assist at new nuptials. In this controversy, the influence of local circumstances appears not inconsiderable. For approved authors who write in Italy or in a region which is free from a law of divorce are accustomed to answer more severely than inhabitants of regions where such a law has been received into custom. Nor ought we to wonder at this. Where that law does not exist, Catholic writers must strive by every effort, and by the very severity of their reprobation, that it not be introduced; but where it is so established that no hope of suppressing it shines forth, they are more solicitous about the possible manner in which good magistrates can both remain such and discharge their office. Yet even those who defend the stricter position, if they speak moderately, for example, the Most Illustrious Dr. Rosset ², acknowledge that the opinion which denies the intrinsic unlawfulness of the cooperation of a magistrate is defended by distinguished patrons. Cardinal Gasparri, who nevertheless professes that he inclines toward the stricter position, says that not a few prelates who are learned, pious, prudent, and most devoted to the Apostolic See, in Germany, England, America, and France, "retain the more benign opinion, whether in theory or in practice, at least as probable ³." And he alleges Lehmkuhl (II, 921, note) as the principal author of that opinion.

² De sacramento matrimonii, vol. 6, no. 4084.

³ De matrimonio, vol. 2, no. 1554.

n. ¶1526.

To say what we think, this question does not have a universal solution.

…and 7 more passages — all of them are listed on the topic page.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 11 passages

Vol. III, Pt. II, Tr. X, Chapter X. On Civil Matrimony and Civil Divorce · Vol. III, Pt. II, Tr. X, Ch. X, Article I. On Civil Matrimony · Vol. III, Pt. II, Tr. X, Ch. X, Article II. On Civil Divorce

Vol. III, Pt. II, Tr. X, Chapter X. On Civil Matrimony and Civil Divorce

n. ¶115.

This chapter is divided into two articles: 1. on civil matrimony; 2. on civil divorce.

Vol. III, Pt. II, Tr. X, Ch. X, Article I. On Civil Matrimony

n. 885.

885. Notion. Civil matrimony is a marital contract (even of Christians) entered before a civil magistrate.

It is called a marital contract, that is, one regarding all marital rights and not merely agreements concerning civil effects and the administration of goods. Accordingly, civil matrimony strictly so called is not present if the betrothed have the sole intention of declaring to the civil magistrate their marital union already effected or soon to be effected, thereby assuming merely civil burdens and rights for themselves and their future offspring.³²⁶

Division. Civil matrimony introduced by modern governments is customarily divided in three ways:

1. Necessary or obligatory civil matrimony,³²⁷ which is prescribed by the civil government under grave penalties for all persons about to marry. Civil matrimony of this obligatory kind exists today in several regions, for example, in Germany, France, Holland, Hungary, Belgium, Switzerland, and Italy. The civil government takes no account of ecclesiastical matrimony or of impediments established by the Church, but judges the entire matrimonial contract in its tribunal according only to the civil laws in force.

2. Facultative civil matrimony,³²⁸ which is had if all persons about to marry, even Christians, are permitted the choice of celebrating matrimony either before the parish priest or a minister of worship legitimately authorized by the civil and ecclesiastical authority, or before the civil magistrate alone, only the civil laws being observed. Civil matrimony of this facultative kind is in force in England, North America, and other states.

3. Subsidiary civil matrimony,³²⁹ which is accepted as valid by the civil government when persons about to marry either cannot or will not contract matrimony in the face of the Church. Civil matrimony of this subsidiary kind is now in force in Spain and Poland,³³⁰ and takes the place of ecclesiastical matrimony. Such matrimony is contracted: a) by non-baptized persons, who are not subject to ecclesiastical jurisdiction; b) by heretics who do not acknowledge the jurisdiction of the Catholic Church; c) by Catholics who wish to contract matrimony although a diriment impediment stands in the way.

Not much need be said concerning the history of civil matrimony. Before the so-called "Reformation" of the sixteenth century, civil matrimony was entirely unknown. It seems to have been introduced for the first time in Holland and Friesland on April 1, 1580. In England, a law concerning civil matrimony was promulgated on August 24, 1653. In France, necessary civil matrimony was prescribed for all citizens of France on September 20, 1792. At the present time civil matrimony is in force in some manner in almost all regions, as is evident from the things said above.

³²⁶ Wernz-Vidal, Ius can. V, n. 583.

³²⁷ "Obligatory or compulsory civil matrimony" (Die obligatorische oder Zwangszivilehe).

³²⁸ "Facultative or elective civil matrimony" (Die fakultative oder Wahlzivilehe).

³²⁹ "Emergency civil matrimony or substitute civil matrimony" (Notzivilehe oder Ersatzzivilehe).

³³⁰ Subsidiary civil matrimony for Protestants also exists in a few other lands. In Russia, Denmark, and Sweden a species of subsidiary civil matrimony is granted.

n. 886.

886. Principle 1. Civil matrimony in the sense explained above cannot be acknowledged by the Church as a true matrimony between Christians; accordingly, it is neither a sacrament nor does it produce any canonical effects.

The discussion concerns only the matrimony of Christians. For non-baptized unbelievers are not subject to the jurisdiction of the Church; and accordingly, since their marriages must nevertheless be governed by some visible authority, the opinion of many is that, by the law of devolution, the civil power can govern the marriages of unbelievers, provided that nothing contrary to natural and divine law is established.³³¹ Therefore, unbelievers can validly and licitly contract a civil matrimony which is not opposed to natural and divine law.³³² But the Church has always condemned the civil matrimony of Christians; hence proposition 73 was proscribed in the Syllabus of Pius IX: "By virtue of a merely civil contract there can exist between Christians a matrimony properly so called."³³³

There are several reasons why the Church has always condemned civil matrimony, of which the principal ones are: 1. through civil matrimony the right of the Church is injured, for she alone has power over the marriages of Christians, inasmuch as they are sacraments; 2. civil matrimony renders matrimony a truly profane affair and a merely profane contract, as Luther taught in express words;³³⁴ 3. it fosters indifferentism among Christians because mixed or other illicit marriages are thereby often concluded; 4. it fosters divorces, for civil marriages are dissolved as easily as they are contracted; hence, where civil matrimony has been introduced, there civil divorce from the matrimonial bond is also in force, with a few regions excepted;³³⁵ 5. Christians are compelled to perform an action which they acknowledge either as something evil or as something not at all obligatory in conscience.

³³¹ Cf. above, n. 651.

³³² Cf. Gasparri, De matrim., n. 1221.

³³³ Denz., n. 1773.

³³⁴ "Because wedding and the married state are a worldly affair, it does not belong to us clergy and ministers of the Church to regulate it." Traubüchlein, cited in Leitner, Lehrb. d. kirchl. Eherechtes, 81.

³³⁵ Cf. below, n. 890.

n. 887.

887. Principle 2. Christians about to marry can licitly, and indeed must for a reasonable cause, observe the statutes of civil law concerning the celebration of matrimony, provided that the intention of receiving the sacrament of matrimony itself before the civil magistrate is excluded.³³⁶

All teach thus. Leo XIII himself says in the celebrated Encyclical Arcanum: "It is of the greatest concern to the spouses to have all these things well known; they ought also to have them approved and impressed upon their minds, so that it may be permissible for them in this matter to conform to the laws, the Church herself not refusing, since she wills and desires that the effects of marriages be secure in every respect and that no harm be brought upon the children."

Therefore, Christians about to marry must intend nothing before the civil magistrate other than merely civil effects for themselves and their offspring,³³⁷ nor can they therefore be accused of having committed fraud or falsehood, since the civil laws intend nothing beyond civil effects in civil matrimony. In regions where civil law requires that civil matrimony be contracted before ecclesiastical matrimony, this is indeed licit; but every diligence must be used so that matrimony before the Church may be contracted as soon as possible and, in the meantime, the contracting parties may remain separated.³³⁸ Therefore, persons about to marry should not enter civil matrimony before all things have been prepared so that matrimony before the Church can certainly be celebrated as soon as possible. For several examples are not lacking in which, after civil matrimony had been contracted, one or the other of the betrothed refused to contract before the Church.

Note. Parish priests must know thoroughly the statutes of the civil law of their country so that they may be able rightly to instruct the faithful with what intention and in what mind those statutes can and ought to be observed. Likewise, this knowledge is necessary lest great harms arise to the parish priest himself and to the Catholic religion from the transgression of these statutes.

³³⁶ Code of Canon Law, can. 1003, § 3.

³³⁷ Benedict XIV, Brief Redditae sunt nobis, September 17, 1746.

³³⁸ Sacred Penitentiary, January 15, 1866.

n. 888.

888. Effects and penalties of civil matrimony. Civil matrimony as such is considered a foul concubinage for Christians and therefore induces all the penalties inflicted upon concubinage. Hence: 1. the impediment of public propriety arises;³³⁹ 2. civil matrimony contracted and consummated after the civil divorce of another legitimate matrimony induces the impediment of crime³⁴⁰ and infamy of law because of bigamy;³⁴¹ 3. if any offspring is born from a union of this kind, it, as born from a wife who is not legitimate, is illegitimate in the eyes of God and the Church;³⁴² 4. persons living in an invalid civil matrimony are regarded as public sinners, for they are concubinaries,³⁴³ and accordingly cannot be admitted either to receive the sacraments, to ecclesiastical burial, or to legitimate acts;³⁴⁴ 5. clerics constituted in sacred orders or regulars of either sex after solemn vows who presume to contract civil matrimony, as well as all who presume to enter matrimony with the aforesaid persons, incur excommunication simply reserved to the Apostolic See and other penalties. This excommunication, however, is reserved to the Ordinaries if it is a question of the civil matrimony of a simply professed religious.³⁴⁵

Although civil matrimony as such is concubinage, nevertheless, insofar as it is contracted with true marital consent and without other diriment impediments, it is valid under those conditions in which clandestine marriages are valid. Hence, for example, civil marriages contracted between non-Catholics who have true marital consent and are bound by no other diriment impediment are valid. The same was true of mixed civil marriages contracted in Germany and Hungary before May 18, 1918.

In practice a great difficulty arises in determining whether marital consent was truly present in the celebration of a civil matrimony. A distinction must be made. Ordinarily, the presumption stands for insufficient consent, and consequently for the invalidity of the civil matrimony, if it was contracted by a true Catholic who fulfills the duties of religion;³⁴⁶ contrariwise, the presumption stands for the validity of the consent and of the civil matrimony if it was entered by an indifferent Catholic or a heretic who explicitly neglects the celebration of matrimony in the face of the Church. Therefore, in each case the absence of sufficient marital consent must be proved.

³³⁹ Cf. above, n. 845.

³⁴⁰ Cf. above, n. 825.

³⁴¹ Can. 2356.

³⁴² Benedict XIV, loc. cit., § 3.

³⁴³ The Sacred Penitentiary said on January 18, 1866: "He would be a true concubinary who should presume to persist in matrimony by the force of the civil act alone."

³⁴⁴ Code of Canon Law, can. 2357, § 2.

³⁴⁵ Ibid., can. 2388; can. 188; can. 646; can. 985.

³⁴⁶ The Sacred Roman Rota declared on February 23, 1912 the nullity of a certain mixed civil matrimony contracted in Germany because true consent was lacking (Acta Apost. Sed. IV, 392). The same in the Argentine case, November 18, 1918 (Acta Apost. Sed. XI, 358).

n. 889.

889. You ask: Is it permissible to assist at a civil matrimony as an official of the magistracy or as a witness?

The answer is:

1. If the persons about to marry themselves, as well as the official of the magistracy and the witnesses at the civil matrimony, intend nothing other than a merely civil act with merely civil effects, certainly no one sins. Thus teach all. But if the persons about to marry, with an evil will, contract civil matrimony intending in that act a true and valid matrimony, the persons about to marry themselves certainly sin gravely; nevertheless, for a grave cause the civil magistrate can assist at this evil act as a minister of the government. The reason is that such assistance is nothing but material cooperation in the sin of another, which can be rendered for a grave and proportionate cause. Thus also a parish priest can for a grave cause assist at the gravely illicit matrimony of a public sinner; thus it is permissible for a grave cause to rent a room to a prostitute prepared to commit many sins in that room.³⁴⁷

2. The difficulty is greater if the civil magistrate knows for certain that the persons about to marry are entering a matrimony entirely invalid, for example, because of a civil divorce previously obtained or because of other diriment impediments. Even in this case the civil magistrate can, for a most grave cause, assist at the civil matrimony, unless, however, this has been expressly prohibited for some region by ecclesiastical authority. Modern authors commonly teach thus, for example, Gasparri,³⁴⁸ Génicot,³⁴⁹ Lehmkuhl,³⁵⁰ Noldin,³⁵¹ De Smet,³⁵² Gennari,³⁵³ Wernz-Vidal,³⁵⁴ etc. The reason is that such assistance is indeed proximate cooperation in the sin of another, but it does not seem to be something intrinsically evil. For civil matrimony is customarily considered by modern governments, at least Catholic governments, as a juridical formality instituted chiefly to prevent greater evils.

Now, because of hatred of religion, atheism, or other causes, many persons about to marry today refuse to enter matrimony before the Church; on the other hand, because of the so-called "freedom of worship" everywhere in force, alas, the government cannot compel persons about to marry to present themselves in the face of the Church; nor is it morally possible to establish one set of laws for good Catholics and another for irreligious persons. Therefore, in order to avoid those pernicious free unions between persons of different sex, governments are almost compelled to establish some juridical formality which all inhabitants, whether baptized or non-baptized, who wish to contract matrimony must observe absolutely. After this formality has been completed, they are regarded by the government as spouses having the rights and burdens of true spouses.

Therefore, if otherwise great harm would arise to himself or to religion, the civil magistrate can assist at this formality as an authorized witness without implicitly intending or concerning himself with the moral effects following from the formality of civil matrimony. This assistance seems to have some likeness to the action of a servant who places his shoulder beneath, or carries a ladder for, a master ascending to commit fornication. Now St. Alphonsus³⁵⁵ does not hold this action of the servant to be intrinsically evil. Why should the same not be said of the assistance of a magistrate who cooperates less proximately in fornication than does a servant submitting his shoulders to his ascending master?

That this assistance is not in reality an intrinsically evil act seems sufficiently clear. For that act is not intrinsically evil which is not always evil but sometimes good or indifferent. But the assistance of a mayor at civil matrimony is not always an evil act, for example, when he offers his assistance to persons about to marry who will nothing illicit. Therefore, this assistance is not something intrinsically evil but licit when a sufficient cause is present.

A sufficient cause seems to be present if otherwise the mayor would have to resign his office with great harm to himself or even to the Catholic religion. For it would be a truly great harm to the Catholic religion if no good Catholic could now discharge the office of civil magistrate.

I said above, however, that this assistance is not licit if it has been prohibited by ecclesiastical authority for some region. For it belongs to ecclesiastical authority to judge whether in some region there truly are sufficient causes to render honorable so grave a cooperation in the sins of others. In particular cases the Sacred Congregations have several times responded that such assistance is not licit.³⁵⁶ De Smet,³⁵⁷ however, prudently warns: "If there are some who think the action of the mayor intrinsically evil, let them hold this as a norm: that they leave the aforesaid magistrates in good faith, but direct those who inquire to the Ordinary."

³⁴⁷ Cf. above, I, n. 622, on cooperation.

³⁴⁸ De matrim., n. 1231.

³⁴⁹ Theol. mor. II, 562, under 4.

³⁵⁰ Theol. mor. II, n. 952, note.

³⁵¹ De sacr., n. 681.

³⁵² De sponsal. et matrim., n. 406.

³⁵³ Consultazioni mor. (1902), consultation 41.

³⁵⁴ Ius can. V, n. 591.

³⁵⁵ Theol. mor., bk. 2, n. 66.

³⁵⁶ See the responses of the Holy Office and the Sacred Penitentiary in Gasparri, loc. cit., n. 1229 ff., and in Denz., n. 1865.

³⁵⁷ Loc. cit., n. 406.

Vol. III, Pt. II, Tr. X, Ch. X, Article II. On Civil Divorce

n. 890.

890. Notion. Civil divorce is called a separation of spouses pronounced by the civil power.

Just as in divorce pronounced by the Church there are two species, one perfect, or as regards the matrimonial bond, the other imperfect, or as regards habitation and bed, so also a twofold civil divorce is distinguished: one as regards the bond, so that it is permissible to celebrate new nuptials; the other as regards separation of bodies alone.

In some regions there exists only civil divorce as regards the bond, for example, in Romania, Serbia, Denmark, several states of North America, and partly in Switzerland, where imperfect divorce is indeed permitted, but not beyond three years.³⁵⁸ In other regions, however, only imperfect divorce or separation of spouses is permitted, for example, in Spain, Portugal, Italy, Argentina, Chile, and also in one state of North America, namely, South Carolina.³⁵⁹ Finally, there are several regions in which civil law permits either divorce, namely, either as regards the bond or as regards habitation alone, as in Germany, France, Belgium, England, and some states of North America. In Austria only separation as regards habitation is permitted to Catholics, but divorce as regards the bond is also permitted to other inhabitants.

³⁵⁸ Cf. Swiss Civil Code, art. 148, and Tuor, Einführung in das Schweiz. Zivilgesetz, 126.

³⁵⁹ Cf. Schulze, Eherecht und Ehegesetzgebung in den Vereinigten Staaten, in Linzer Theol. Quartalschrift (1909), 748 ff.

n. 891.

891. Principle. A civil law permitting perfect divorce is iniquitous and to be most gravely condemned.³⁶⁰

Against this law militate the same reasons which were adduced above against laws concerning civil matrimony. Moreover, as experience proves, the worst effects for religion and good morals follow from civil divorce: the mutual love and inviolate fidelity of spouses are diminished; the education of offspring is endangered; adulteries, quarrels, material losses, and crimes of every kind spring forth from it. Hence, the more frequent divorces are in some region, the worse the morals seen to flourish there.

Moral corollaries.

³⁶⁰ Cf. Constitution Arcanum. An Instruction of the Holy Office, December 21, 1901, admonishes the bishops of Italy to oppose strongly the introduction of divorce into the Civil Code.

n. 892.

892. 1. Concerning spouses. a) It is never permissible for Christians to seek the civil divorce of any valid matrimony for the purpose of being permitted to pass to other nuptials. The reason is that something intrinsically evil would be sought, as being directly opposed to the indissolubility of Christian matrimony.

b) For a grave cause it is permissible to seek imperfect divorce or separation of bodies from a civil tribunal. Such is now the common opinion among authors.³⁶¹ Concerning this matter the Holy Office established on December 19, 1860: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics perform in that forum the parts of plaintiff and advocate, provided that just causes of separation are present in the judgment of the bishop."

To the question, however, whether a husband could seek divorce from an adulterous wife while intending only to break merely civil effects, when no other means was available for obtaining the repudiation of paternity concerning adulterine children and their exclusion from the share of legitimate offspring, the Sacred Penitentiary responded on June 30, 1892: "Let the petitioner consult approved authors."³⁶² From this response it seems to follow that not only separation of bodies, but even perfect divorce in a case of most grave necessity, may licitly be sought from a civil judge; for a) the question concerned a true divorce, and b) approved authors teach that not only imperfect divorce, but even perfect civil divorce, is licit if no other means is at hand for preventing grave harms.

Hence, in those regions in which separation of bodies alone does not exist, a Catholic spouse can, when a grave cause is present and the permission of the bishop has been obtained, directly solicit a civil divorce for the purpose, not indeed of attempting new nuptials, but of obtaining the merely civil effects of divorce. The reason is that to seek civil divorce does not seem to be something intrinsically evil. Therefore, unless a special prohibition of the Church is present, it is permissible to act thus.

³⁶¹ De Smet, De sponsal. et matrim., n. 401; Noldin-Schmitt, De sacr., 17th ed., n. 671; Lehmkuhl, Theol. mor. II, n. 922, note.

³⁶² Cited in De Smet, loc. cit.

n. 893.

893. 2. Concerning the civil judge. Among all Catholic authors the following are established:

a) The civil judge must acknowledge his incompetence in matters which touch the sacrament of matrimony.

b) The judge can in no way render judgment concerning civil divorce if a special prohibition of the Church exists in some region.

c) The civil judge can protect the indissolubility of matrimony and reject spouses soliciting civil divorce; likewise, he can decree the perfect civil divorce of some matrimony which either was null in itself, for example, the civil matrimony of Catholics, or was previously dissolved by the Church as regards the bond.

d) The civil judge cannot pronounce the perfect divorce of any Christian matrimony without a most grave cause. The reason is that the judge cannot cooperate in some evil action, such as divorce, without a grave necessitating cause.

It is sharply disputed whether, even when a most grave cause exists, the civil judge can licitly pronounce civil divorce while intending only the civil effects of dissolution. Several authors, among whom Bucceroni³⁶³ and Gasparri³⁶⁴ are prominent, teach that the judicial pronouncement of the civil divorce of a Christian matrimony is an intrinsically evil act and therefore is never licit. Other authors, however, among whom are De Smet,³⁶⁵ Noldin-Schmitt,³⁶⁶ Lehmkuhl,³⁶⁷ Göpfert,³⁶⁸ Marc,³⁶⁹ Waffelaert,³⁷⁰ Ballerini-Palmieri,³⁷¹ De Becker,³⁷² Génicot,³⁷³ Grandclaude,³⁷⁴ and Leitner,³⁷⁵ teach that this pronouncement of divorce is not an intrinsically evil action and is therefore licit in grave necessity.

This second opinion seems to be solidly probable not only extrinsically, because of the authority of the doctors, but also intrinsically; and therefore a Catholic judge cannot be obliged to resign his office rather than pronounce a sentence of divorce. For the pronouncement of divorce made by a judge with regard to civil effects alone is not intrinsically evil either by reason of its object or by reason of circumstances necessarily connected with it.

Indeed, it is not intrinsically evil by reason of its object; for through the pronouncement of divorce nothing else is done except that a matrimony legitimate before God is deprived of civil effects and legal recognition, and legal impunity is granted to the spouses if they wish to enter a new civil matrimony. All these things, however, do not seem to be intrinsically evil when a grave necessitating cause is present, because in all these things the judge does not at all touch the very nature of Christian matrimony, but only the civil bond which was contracted in the civil matrimony. Or, in other words: Civil divorce is nothing other than the destruction of civil matrimony. Now, just as the destruction of civil matrimony for an entire region is not something intrinsically evil by reason of its object, so a fortiori the destruction of civil matrimony in a particular case through a divorce pronounced by a judge is not intrinsically evil.

Nor is a sentence of divorce intrinsically evil by reason of circumstances necessarily connected with it. For, supposing the clearly expressed will of the judge to touch nothing but the civil effects of matrimony, no other evil circumstances can be connected with the sentence of divorce except scandal to the people and cooperation in the sins of others. Certainly, grave scandal can sometimes arise from a sentence of divorce, especially if divorce had hitherto been unheard of in some region and a new law of divorce was enacted in hatred of religion. Then a sentence of divorce could certainly be expressly prohibited by ecclesiastical authority. But if the law of divorce has already been in force for a long time in some region and is often applied, as is usually the case in several states of Europe, then a Catholic judge, pressed by necessity, causes no true scandal by pronouncing divorce. For all know that the judge cannot act otherwise unless he wishes to lose his office.

Nor is a sentence of divorce intrinsically evil by reason of cooperation in the sins of others, both because this cooperation is not so proximate and because it is permissible for a most grave cause to cooperate in the sin of another, provided that this cooperation is not rendered through an action intrinsically evil by reason of its object.

These things being so, a Catholic judge is not to be disturbed if, pressed by most grave necessity, he pronounces a sentence of divorce, provided that no special prohibition of ecclesiastical authority stands in the way and provided that he openly professes that he dissolves only the civil effects of the matrimony.³⁷⁶ This opinion indeed receives great strength from a response of the Sacred Penitentiary given on September 24, 1887 to the Bishop of Luçon: "To the question whether a mayor can pronounce a divorce which he is compelled to pronounce under penalty of resigning his office, on the supposition that he openly professes the incompetence of the civil judge in a matrimonial matter and the ineffectiveness of the divorce as regards the bond, the response is that it can be tolerated that the petitioner, the mayor, proceed to the act concerning which the petition was made."³⁷⁷

The Holy Office, however, wrote to the Bishop of St. Gall in Switzerland on April 3, 1877 that judges ought to have recourse in individual cases. From these two responses it seems manifestly to follow that a sentence of civil divorce is not something intrinsically evil; for otherwise the Sacred Penitentiary could not have tolerated it, and the Holy Office could not fittingly have prescribed recourse for individual cases. For what need is there of consultative recourse if it is clear from the outset that a sentence of divorce is intrinsically, and therefore always, evil?

We are not unaware, indeed, that there also exist certain responses of the Holy Office, for example, those of June 26, 1885 and May 27, 1886, from which it rather follows that a sentence of civil divorce is intrinsically evil; but the answer is that these decrees were particular by reason of the peculiar circumstances present. For it is certain and admitted by all that hitherto no general decree of ecclesiastical authority concerning this controversy exists; indeed, the Holy See has deliberately abstained from settling the question to this day. Therefore, an apodictic argument for the stricter opinion cannot be taken from authority. In practice, then, it is permissible to follow the benign opinion, since it is solidly probable both intrinsically and extrinsically.³⁷⁸ It is nevertheless to be desired that all Catholics, and especially deputies, labor strenuously to reform civil legislation, so that no public official may now be compelled to pronounce the civil divorce of a valid matrimony.

³⁶³ Theol. mor. II, n. 983.

³⁶⁴ De matrim., n. 1248, where he says that he inclines to the stricter opinion.

³⁶⁵ Loc. cit., n. 393.

³⁶⁶ De sacr., n. 669.

³⁶⁷ Theol. mor. II, n. 921, note.

³⁶⁸ Moraltheol. III, n. 284.

³⁶⁹ Instit. mor. II, n. 2126.

³⁷⁰ Sur la coopération, 66.

³⁷¹ Opus theol. mor. VI, n. 819 ff.

³⁷² De matrim., 426 ff.

³⁷³ Theol. mor. II, n. 561.

³⁷⁴ Règles pratiques touchant la coopération au divorce civil, 8.

³⁷⁵ Lehrb. d. kirchl. Eherechtes, 618.

³⁷⁶ For Germany and Holland this opinion seems morally certain, since in their civil codes it is clearly stated that ecclesiastical statutes concerning matrimony are not at all touched by civil legislation. Dutch Code, art. 83; German Civil Code, § 1588: "The ecclesiastical obligations with respect to marriage are not affected by the provisions of this section." Aertnys, Theol. mor., bk. 3, n. 522, is also of this opinion, although for other regions he defends the stricter opinion.

³⁷⁷ Cited in De Smet, De sponsal. et matrim., n. 398.

³⁷⁸ Thus also Linneborn, Grundriß des Eherechtes, 2nd ed., § 4.

n. 894.

894. 3. Concerning advocates. Almost the same holds for advocates as was said concerning judges. For if the sentence of divorce itself is not something intrinsically evil, it is permissible not only to pronounce it when grave necessity exists, but also to plead in its support. Nevertheless, a sufficient necessitating cause is more rarely present for an advocate than for a judge. For an advocate is accustomed to undertake a divorce case freely, not by force of office. Nevertheless, it can happen that even for an advocate there exists a sufficient cause for seeking the divorce of his client, especially if an imperfect divorce has already been obtained in an ecclesiastical tribunal.³⁷⁹ For the rest, in practice a confessor ought not to disturb Catholic advocates who cannot decline the office of plaintiff in a divorce without most grave inconvenience, provided that no scandal arises therefrom and merely civil effects are openly intended.

Scholion. It would remain for us to treat the judicial process in matrimonial cases; but because this whole matter pertains to canon law and cannot be treated sufficiently in a brief Manual of Moral Theology, we refer the reader to the canonists who treat this matter expressly, for example, to Wernz-Vidal, Ius can. V, seventh part; to Linneborn, Grundriß des Eherechtes, §§ 59–66; and to our Manual of Canon Law, q. 537 ff.

³⁷⁹ Cf. Holy Office, December 19, 1860.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 57 passages

Ch. II, § B. Concerning Certain Si…, Q. II, Which Is Opposed to Spiritual Goods · Ch. X, Article II: Concerning Civil Divorce

Ch. II, § B. Concerning Certain Si…, Q. II, Which Is Opposed to Spiritual Goods

n. ¶4815.

VIII. The case of merely civil marriage is reduced to concubinage. - Merely civil marriage entered by Catholics, since it is not a valid contract of marriage, nor a legitimate union, is nothing but concubinage; hence the same principles set forth above are generally to be applied in the case.

n. ¶4816.

Nevertheless there can be a special difficulty if spouses joined by a valid marriage, after obtaining civil divorce, have attempted a new marriage before the civil law; this is not only invalid, but, while the legitimate counterpart is living, cannot be convalidated. Hence separation without doubt is of itself altogether to be urged; indeed, if it can be done, civil divorce of the second marriage will have to be obtained. But these things do not always seem possible, for example on account of offspring born and hence the danger of evil education or also scandal to be furnished to the offspring, or on account of great detriments in temporal goods, or also on account of infamy if those joined are held by all as legitimate spouses. Therefore then at least they are to be separated from the bed, and to be as cohabitants brother and sister. And therefore this new question arose: can spouses who, after obtaining civil divorce, have entered a new civil marriage, be admitted to the sacraments if they cohabit as brother and sister and the nullity of the marriage is unknown?

n. ¶4817.

Concerning this question we were not able to find anything explicit in manuals of moral theology; they are wont to state the general principle without exception: those joined by civil marriage give public scandal, and consequently cannot be admitted to the sacraments unless the scandal has ceased by separation and has been sufficiently repaired. Schmitt alone, in the recent edition of Noldin's moral work, II, n. 677, puts a certain restriction, saying: "at most, if the fact were wholly occult, and in that place they were commonly held to be joined by true marriage, it could be permitted for a grave cause that, continence being preserved, they dwell together." He indeed does not add that they can be admitted to the sacraments, but perhaps this can be held as implicitly contained in these words. But that this is lawful was affirmed in the periodical L'ami du clerge, 1926, p. 424, if namely separation is morally impossible, the fact is altogether occult, and there is no danger that it will be manifested, for example if those joined have gone away into a far distant region or live unknown in a very great city, since then in reality there is no scandal. From this it happened in certain regions, especially in France, that some confessors applied this manner of acting to cases wholly occult in a great city; but certain ones, proceeding more imprudently, are reported to have dared to admit to the sacraments also those who only propose to live as brother and sister and strive for this, although at times they carnally couple.

n. ¶4818.

Concerning this case it seems that one must speak thus. Regularly indeed it cannot be done thus. But given a wholly occult case, and one in which there would be no danger of manifestation, not even then would it belong to the confessor to pass sentence concerning it; for the cohabitation of those civilly joined is an external and public fact, which does not pertain to the internal forum of confession but to the external forum and consequently is subject to the judgment of public authority; moreover the case concerns very grave causes, which it is in no way opportune to leave to the mind of individual confessors, but it is better to refer them to ecclesiastical authority; but so that in this matter a certain uniform and constant practice, as is fitting, can be had, the Ordinary is not to be approached, but the matter will have to be submitted to the Sacred Penitentiary, to which otherwise recourse must be had if any wish to obtain absolution from infamy of law, which by the fact itself they incurred from merely civil marriage (can. 2356). To the Sacred Penitentiary, we say, because the matter concerns an occult case; for if it were public, it would pertain to the Holy Office.

n. ¶4819.

The Sacred Penitentiary will diligently inquire about three things:

n. ¶4820.

about the absence of danger of protestation and manifestation on the part of the abandoned spouse, and of injury perhaps inflicted upon that spouse and not repaired;

n. ¶4821.

about the absence of every danger of manifestation of occult scandal. Certain ones falsely assert that in the case there is truly no scandal. Passive scandal indeed is lacking because of ignorance; but active scandal is by no means taken away. It consists in this, that the woman continues to bear the name of the man, that both in contempt of divine law remain together as spouses, and that in addition they publicly live in a proximate occasion of sin. Nor does it suffice that they conceive the purpose of living as brother and sister, because that is not an apt means of taking away scandal: namely the fact of cohabitation of those who are civilly joined is of itself an evil example and necessarily inducing to evil. And although here and now it does not induce to evil, as being unknown, this is wholly per accidens, because it is always of itself inductive: an external fact of itself less right, furnishing an occasion of spiritual ruin, and which, being of itself public and notorious, is apt to be spread and to move others to sin;

n. ¶4822.

about the practical possibility of cohabiting as brother and sister; hence it will subject those joined to a long probation, for example of one year, during which time they must show continence faithfully preserved.

n. ¶4823.

These things being verified, the Sacred Penitentiary will exceptionally be able to grant permission of admitting them to reception of the sacraments.

n. ¶4824.

This seems the prudent and right solution of the aforesaid case; and we can affirm that this solution is approved as right in the Sacred Penitentiary itself.

n. ¶4825.

We wish to insist somewhat on the great inconveniences and dangers which would threaten if the aforesaid new practice of certain confessors were spread or greatly extended. The danger, namely:

n. ¶4826.

lest spouses or confessors no longer seek a means of completing real separation;

n. ¶4827.

lest to spouses who promise to cohabit as brother and sister, but do not fulfill the promise, absolution nevertheless be granted under the pretext that they are in a morally necessary occasion;

n. ¶4828.

lest esteem be diminished for that great evil which is merely civil marriage;

n. ¶4829.

lest the fact not remain occult but the practice be spread in public: for since such a fact does not easily remain secret, when cases are multiplied the probability of revelation increases;

n. ¶4830.

finally, lest the practice be extended too much. A simple warning of theologians does not meet this danger: that it can be done thus only very rarely. For since there are confessors not sufficiently prudent, this is not so rare, it will easily happen that several, in our times very inclined to laxer benignity, will imagine that precisely that very rare case occurs to them, and thus the practice would be unduly multiplied.

Ch. X, Article II: Concerning Civil Divorce

n. 277.

- I. In our days among many nations God and Christ are exiled from public life. The state is judged to have every power, without being bound in any way to attend to divine or ecclesiastical laws. And thus civil matrimony and civil divorce have been instituted against the rights of God and of the Church. Concerning civil matrimony there is no great difficulty. Not only can the faithful admit it, provided they do not attribute to it any effect with respect to matrimony itself beyond the acquisition of civil rights, but they are altogether to be invited to fulfill that formality, on account of procuring the temporal good of the spouses themselves and of the offspring to be born.

n. ¶6969.

But concerning civil divorce a graver difficulty remains: namely whether it is licit for Catholics both to petition for it, and to pronounce it as judge, and finally to join civilly those who are kept back from new nuptials by the impediment of bond.

n. 278.

- II. Notion of civil divorce.

n. ¶6971.

a) Civil divorce is the dissolution of civil matrimony even with respect to the bond, so that the spouses can freely contract another matrimony.

n. ¶6972.

b) But note well that in the intention of the legislator, at least in Belgium and in France, civil matrimony is considered as true and indeed the only matrimony, to such an extent that matrimony contracted before the Church only, the law holds as concubinage, and the children born from such a union as illegitimate.

n. 279.

- III. What must be thought concerning the law permitting divorce.

n. ¶6974.

No one of the Catholics can doubt that that law is most evil, as usurping the rights of the Church, which alone is competent to render judgment in matrimonial causes, and, what is still worse, as sacrilegiously contending to break the matrimonial bond, against the precepts of divine law itself.

n. 280.

- IV. What concerning the sentence itself of perfect divorce.

n. ¶6976.

a) There is a great dispute among authors whether such a sentence is intrinsically and essentially evil, so that for no cause, although most grave and most urgent, can it be rendered by a judge or petitioned for by spouses.

n. ¶6977.

b) Nevertheless, that essential malice seems to be absent from a sentence of divorce, so that sometimes under certain conditions, with conscience unharmed, it can both be pronounced by a judge and be sought by spouses and advocates.

n. ¶6978.

For such essential malice appears neither with respect to the very object of the sentence, nor with respect to the circumstances necessarily annexed.

n. ¶6979.

Not with respect to the object. For a sentence of divorce is of itself nothing other than the destruction of civil matrimony, or the privation of legal recognition and civil effects for the matrimony. Now nothing there seems to be essentially evil.

n. ¶6980.

Not with respect to the circumstances necessarily conjoined: For if the judge clearly expresses his will of touching only the civil effects of matrimony, no other evil circumstances can be conjoined with the sentence of divorce except scandal for the people and cooperation in the sins of others.

n. ¶6981.

Such scandal is not present in most European nations, where the law of divorce has been in force for a long time and is constantly applied, if the judge or spouses or advocate, driven by true necessity, render or seek such a sentence.

n. ¶6982.

But with respect to cooperation in the sins of others, the cooperation is not so proximate, and since it is not by an action evil of itself, it can be excused from a most grave cause.¹

¹ Prümmer, cited work, nn. 901 and 902.

n. 281.

- V. What concerning the judge in relation to the sentence of divorce.

n. ¶6984.

a) He can pronounce divorce whenever the matrimony of which there is question is certainly invalid, as being merely civil between those who are bound to canonical form, or when its nullity has been declared by ecclesiastical authority, or it has legitimately been dissolved with respect to the bond.

n. ¶6985.

b) He can take up the cause so that he may repel the petition for divorce.

n. ¶6986.

c) If, however, he is compelled to put aside the office of judge unless he is willing to judge the cause of divorce, and he cannot repel the petition of the plaintiffs, he seems able to pronounce the sentence of divorce, provided he protests that he wishes to touch only the civil effects.

n. 282.

- VI. What concerning the plaintiff in a divorce cause.

n. ¶6988.

a) Divorce can be petitioned for in the case of an invalid matrimony, and insofar as necessary one declared such by the Church, or legitimately dissolved with respect to the bond.

n. ¶6989.

b) The plaintiff sins most gravely if he intends the dissolution of the matrimonial bond itself or to obtain freedom of entering other nuptials.

n. ¶6990.

c) Even if he seeks only the civil effects, generally one petitioning for civil divorce sins gravely.

n. ¶6991.

d) If, however, most grave causes for petitioning for divorce are present, the plaintiff does not seem able to be condemned, provided he obtains the permission of the local Ordinary.

…and 17 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 101 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, First Part: On Matrimony I…, Question Six: On the Governance of Matrimony · Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, Fourth Part: On the Obliga…, Appendix: On Matrimony in Civil Legislation

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, First Part: On Matrimony I…, Question Six: On the Governance of Matrimony

823. State of the question. - The governance of matrimony brings with it the right and power of commanding, judging, and punishing in matrimonial things and causes. It affects not only matrimony itself in its coming to be and in its fact of being, but also all things which antecedently, concomitantly, or subsequently are connected with it, which are required for it or impede it, and its obligations and effects, whether inseparable or separable, whether spiritual and moral, or temporal or civil. But since matrimony is ordered to a manifold good: to the private good of the spouses, to the good of the family, and also to the public good of civil society and of the Church, it follows that it can be subject to diverse governance. The words of St. Thomas are very well known, c. Gent. IV, 78: "It is fitting that... it be directed by diverse authorities. Therefore, insofar as it is ordered to the good of nature, which is the perpetuity of the species, it is directed to its end by nature inclining toward this end, and thus it is said to be an office of nature. But insofar as it is ordered to the political good, it is subject to the governance of civil law. But insofar as it is ordered to the good of the Church, it is fitting that it be subject to ecclesiastical governance." Hence it is asked under what diverse aspect it pertains to ecclesiastical and civil governance; for it is not enough to say that it is governed by natural and divine law: since this is for the most part vague, indeterminate, and incomplete, it must be determined and completed by human social authority.

Now then:

A. As to the matrimony of Christians:

1° Luther and other Protestants taught that it is not a sacrament but a civil and political contract, and therefore that matrimonial causes pertain to secular judges; for which reason not the Church, but only the civil power, can establish impediments diriment of matrimony. This the Council of Trent condemned, sess. 24, can. 3 and 4.

2° In the seventeenth century, Marcus Antonius de Dominis, an apostate, in the book De Republica Christiana (a. 1617), and Launoy, a Parisian doctor, in the work De regia in matrimonium potestate, said that the sacrament and the matrimonial contract are altogether distinct; that the Church can make determinations concerning the sacrament, but not concerning the contract, except from the consent of princes; that the contract, namely, as being merely civil, is subject to the political power, and that when it is itself made invalid, the sacrament does not subsist, since the matter is lacking. And Launoy adds that the Tridentine canons are disciplinary, not dogmatic. This system the Holy See condemned, September 10, 1668.

3° In the middle of the eighteenth century, many civil jurists and also the Jansenists and their Synod of Pistoia, celebrated in 1786, propagated the same doctrine, which Pius VI condemned in 1794; and during the course of the French disturbance, legislation came forth which considers matrimony as a merely civil act. This error, renewed by Fr. de Paula Vigil, a priest of Lima in the Peruvian republic, and by Nuytz, a professor of Turin, Pius IX respectively condemned on June 10 and August 22, 1851, and in the Syllabus, props. 68-70.

4° Several Catholics, as P. Soto, Catharinus, Sanchez, Pichler, Zech, formerly held that matrimony is subject to a twofold governance: namely, of the Church insofar as it is a sacrament, and of the civil law insofar as it is a contract, and not only as to merely civil effects, but also as to liceity and validity, so that, just as the Church, the civil power also itself could establish prohibiting or diriment impediments.

B. As to the matrimony of unbelievers, which cannot be subject to the authority of the Church, several Catholics also denied to the civil authority every power over it, under the pretext that by nature it is not profane but religious and sacred.

C. As to mixed matrimony, between a faithful person and an unbeliever, it can be asked why it is subject to the power of the Church, and, even granting this, whether it is not at the same time subject to the civil authority to which the unbeliever is subject.

824. Principle I. The matrimony of the baptized is governed by law not only natural and divine, but also canonical, with the competence of the civil power preserved concerning the merely civil effects of the same matrimony. Thus can. 1016.

1° That the Church can govern the matrimony of the baptized is of faith from the Council of Trent, sess. 24, can. 3, 4, 9 and 12; these canons are not merely disciplinary but dogmatic, since they do not treat of those things which are to be done, but of the very power of the Church, and intend "to exterminate the heresies and errors of schismatics"; - that it does this by its own and native right, not by a right derived from the civil power, is clear from the Constitution of Pius VI Auctorem fidei, in the propositions of the Synod of Pistoia 59 and 60, where the opposite doctrine is condemned as heretical and subversive of the canons of the Council of Trent, and from props. Syll. 68-70.

This is proved from the manner of acting of Christ and the Apostles (Mt. V and XIX; Lk. XII, 14; I Cor. VII); - from the practice of the Church at least from the sixth century, exercised for the most part without the connivance of the civil power, as Leo XIII shows in the encyclical Arcanum; - and from the nature of the thing, because matrimony is a sacred thing, as being a sacrament, and for this reason subject to the power of the Church.

2° That the Church governs the matrimony of the baptized by full and exclusive right is certain from Pius VI interpreting the Council of Trent, can. 12, thus, and declaring that all matrimonial causes pertain to the Church alone (September 16, 1788); likewise from prop. 74 of the Syllabus, from the encyclical of Leo XIII Arcanum, and from can. 1960.

This is proved both from the continual practice of the Church, which never acknowledged this power in princes; - and from the fact that the matrimonial contract itself was elevated to the dignity of a sacrament, whence the civil power could not govern the contract without by that very fact touching the sacrament, but sacraments are not subject to temporal power; - and because it implies a contradiction for the same matter to be subject to two supreme and independent powers, since they could establish contrary things.

Nor is it an obstacle that matrimony is ordered not only to spiritual but also to bodily good; because the Church, in governing matrimony, can and ought to attend not only to spiritual but also at the same time to bodily good.

3° That the civil power by its own right is competent as to merely civil effects is certain, as is clear from the nature of the thing itself and from the formal recognition of the Church.

This is proved from the fact that civil effects in the present matter are not understood as effects of the temporal order essential to matrimony and inseparable from it, but as merely civil and separable effects. But these depend essentially on civil law itself, such as the dowry of the wife, the nuptial gift, the governance of temporal goods, hereditary succession at least for the greater part, civil privileges, etc. Whence, from the nature of the thing, they are governed by the civil power by its own right; and only if they are treated incidentally and accessorily can they also be known and defined by the ecclesiastical judge from his own power (can. 1961).

From the things said, they are accustomed to conclude that the governance of the matrimony of the baptized, civil effects excepted, pertains exclusively to the Church by divine right; and that, by that very fact that the conjugal contract was carried up to the dignity of a sacrament, the right of the civil power over it was withdrawn, on account namely of the concurrence of a higher right to which it ought to yield. Hence the opinion of several Scholastics now seems to have been abandoned (as Sanchez, the Salmanticenses, Billuart), who said that matrimony as a sacrament is governed by the Church, but as a contract is of itself governed by the civil power; but that the Church can, if it has judged it opportune, call matrimonial causes to itself and reserve them to itself, and has done this, and therefore now those causes pertain exclusively to it by ecclesiastical law. For this opinion would be reconciled with difficulty with the words of Leo XIII: "the dignity of the sacrament must be considered, by whose accession the marriages of Christians have become far most noble. But concerning the sacraments to establish and command, so from the will of Christ, the Church alone can and ought to do, that it is plainly absurd that even the least part of its power has been transferred to the governors of the civil state." Nevertheless we confess that, for satisfying several of the arguments adduced, it is strictly sufficient that the right belong to the Church of reserving all matrimonial matters to itself.

n. 825.

825. Principle II. The matrimony of unbelievers is governed not only by natural and divine law, but also by civil law. - That the governance of these marriages pertains exclusively to the civil power, with natural and divine law preserved, is clear from various documents of the Church, e.g., S. Off., October 29, 1739 and September 20, 1854; S. C. P. F., October 8, 1631 and June 26, 1820; - that it pertains to it of itself and by its own right seems truer.

n. 825.

This is proved: a) because to the civil power pertains the right of governing natural contracts insofar as they have importance for the common good, but the matrimony of unbelievers is a natural contract which has the greatest importance for the common good; - b) because it is necessary for the common good that matrimony be governed by positive human law, since natural and divine law is too indeterminate; whence great inconveniences would follow if the marriages of unbelievers were subject only to the laws and impediments of natural and divine law: but it cannot be governed except by the civil power, since the Church cannot have any jurisdiction over unbelievers and their marriages. Whence among all nations, at least cultivated ones, there has been civil legislation concerning marriages.

n. 825.

Nor is it an obstacle to this that matrimony of itself naturally is something sacred and religious. For a) it is not intrinsically sacred but merely extrinsically (n. 775, 4°); b) in the natural order there would not be a twofold perfect society, one civil, the other religious, as now in the supernatural order the Church exists; but there would be one society which would care for all human affairs for leading men into happiness. But since unbelievers do not actually pertain to the supernatural order and to the Church, the right of caring for all things has not ceased for them in the civil power, just as from it has been taken away the care of Christians concerning religious affairs.

826. Principle III. Mixed matrimony, between a faithful person and an unbeliever, on the part of the faithful person is governed by canon law; but whether besides this, on the part of the unbeliever, it is also governed by civil law, can be doubted.

1° That the Church can govern matrimony between a faithful person and an unbeliever, and indeed by its own right, is certain from the very constant practice of the Church, and from various canons, e.g., 1119 sq., 1036, § 3, 1070, 1962.

It is proved because the matrimony of a faithful person connaturally and of itself is a sacrament, ordered to the good of the Church; whence it is to be governed by the law of the Church, by which the faithful person is directly bound, while the unbeliever is touched indirectly, insofar as the matrimony does not limp.

It is no obstacle that in the case the matrimony is not a sacrament; for this is merely per accidens, on account of the unbeliever in whom there is an obstacle, namely, the absence of Baptism. Rather, it is the inchoation of a sacrament, because on the part of the faithful person all things necessary for it are posited, and it is in a state altogether proximate to completion, so that when the Baptism of the other party accedes, by that very fact a perfect sacrament exists.

2° That the Church can exclusively govern matrimony between a faithful party and an unbelieving party is the opinion of many, because it is impossible that one individual matrimony be governed by two distinct powers; but in the collision of rights the higher right of the Church prevails, to which it is necessary that the lower right of civil society yield.

Nevertheless several teach that a matrimony of this kind is governed both by the Church and by the civil power, whence they hold that it is impeded both by ecclesiastical impediments which directly touch the faithful person, indirectly the unbeliever, and by impediments, if there are any, established by civil law, which directly bind the unbeliever, indirectly the faithful person, insofar as the matrimony does not limp.

827. Corollaries. - From the foregoing it follows:

1° That the civil power cannot determine concerning the value, liceity, or essential effects of the matrimony of Christians, nor prescribe conditions, form, or solemnity for the celebration of matrimony or espousals, because those things are reserved to the Church, but can touch only separable temporal effects, or merely civil effects; - the contrary holds for the matrimony of unbelievers.

2° Nor can it establish diriment impediments or even merely prohibiting ones for the marriages of Christians; - the contrary holds for unbelievers.

3° Nor can it abrogate impediments established by the Church or dispense in them.

4° Consequently, it cannot directly and absolutely prohibit matrimony to the baptized, even for eugenic reasons, lest namely offspring be contaminated by hereditary infirmity to the detriment of the people; - indeed, neither can it do this for unbelievers, just as neither can the Church do it for the baptized, because it is against the primary natural right which each one has from nature to matrimony, antecedently to every human society; - nevertheless, in matter subject to itself it can establish something (e.g., the imprisonment of a guilty person) by which indirectly and per accidens someone is impeded from entering matrimony.

5° Nor can it impose upon the baptized (although it can advise) a medical examination or inspection as a condition without which matrimony is interdicted or not recognized, or is deprived of its effects, because this is equivalently to establish an impediment and to prohibit matrimony; and therefore neither can it do this to unbelievers, if it would imply the interdiction of matrimony for those for whom the testimony of a physician would not be favorable; - the contrary holds if it were done only to urge the natural obligation of revealing harmful defects to the other party before matrimony, without inhibition of matrimony, although even this does not seem opportune.

6° On the contrary, it can promote and urge the very laws of the Church concerning matrimony, and punish crimes which are opposed to the moral law concerning matrimony, such as adultery, polygamy, divorce, insofar as they are opposed to the common good, with due subordination, however, to the power of the Church; - yet not directly in order to matrimony itself.

7° Laws passed by the civil power beyond its competence are invalid and of themselves do not bind in conscience.