The Effects of Marriage; Legitimacy

640. 1. Legitimacy. Which children are legitimate. Children conceived or born from a valid or putative matrimony are legitimate.¹

a. Children born from a valid matrimony are not judged legitimate if the use of that matrimony was prohibited to the parents at the time of conception because of solemn religious profession or sacred order received. This disposition was made by the Church as a penalty for this crime: for by natural and civil law children of this sort are legitimate.

b. For solving the doubt whether offspring was born from legitimate conjugal commerce, the principle of Roman law adopted by the Church is applied: the father is he whom just nuptials show. Hence children born from a wife are presumed to have the husband as father until the contrary is proved by evident arguments.² Wherefore children are presumed legitimate who were born at least after six months from the day of the celebrated matrimony, or within ten months from the day of dissolved conjugal life.³ These limits were constituted with account taken of the extreme limits between which, as experience testifies, birth and conception can be distant from each other.

¹ Cn. 1114.

² Cn. 1115, 1.

³ Cn. 1115, 2.

641. 2. Legitimation. Through subsequent matrimony, a. whether true or putative, whether newly contracted or convalidated, even if not consummated (as if it is contracted at the point of death), all natural children (but not spurious children) are legitimated, b. provided the parents were capable of contracting matrimony between themselves at the time of the conception or pregnancy or birth of the children.¹

a. Children born outside matrimony from persons between whom, at the time of conception or pregnancy or birth, matrimony could have been made are called natural; others are called spurious, who are either adulterine or incestuous.

b. Legitimation follows contracted matrimony from the very disposition of law, without the consent of the parents or any other positive act.

2. Children legitimated through subsequent matrimony, with regard to canonical effects, are equated in all things to legitimate children, unless something else has been expressly provided.²

Therefore they are not irregular, so that without dispensation they can be promoted to sacred orders and other ecclesiastical dignities. But by law it has been expressly provided that they remain incapable of the cardinalate, episcopate, abbacy, or prelature nullius.

¹ Cn. 1116.

² Cn. 1117.

I. Division of effects. The effects of matrimony are divided:

1. By reason of connection, into inseparable and separable effects. Inseparable effects are those which spontaneously and necessarily flow from valid matrimony. Such are, for example, that true spouses must be held as such; that there arises between the spouses a bond by its nature perpetual and exclusive (canon 1110); that each spouse from the very beginning of matrimony has an equal right and duty with regard to the acts proper to conjugal life (canon 1111), etc. Separable effects are those which accrue to matrimony accidentally or extrinsically; and they are called ecclesiastical or civil, according as they draw their origin from canon law or from civil law. Ecclesiastical effects are, for example, that, unless something else has been provided by special law, the wife becomes a participant in the status of the husband with regard to canonical effects (canon 1112), the right of ecclesiastical patronage granted to the father of a family, etc. Civil effects are, for example, nobility coming to the other spouse or to offspring, the right of political suffrage belonging to the father of a family.

2. By reason of the participants, into effects common to each spouse, and effects proper to the husband, to the wife, or to the children.

II. The different effects of matrimony. 1. Effects common to each spouse are:

a) A bond by its nature perpetual and exclusive (canon 1110).

b) An equal right and duty with regard to the acts proper to conjugal life (canon 1111).

c) The obligation of caring according to one's powers for the education of offspring, both religious and moral and physical and civil, and also of providing for their temporal good (canon 1113).

2. Effects proper to the husband are: marital power over the wife, and the power of the father over the children.

3. Effects proper to the wife are: subjection to the husband; likewise participation in the status of the husband with regard to canonical effects, unless by special law something else has been provided (canon 1112), for example that she enjoys the domicile of her husband (canon 93, § 1), etc.

4. The effect especially proper to children is legitimacy; but concerning this and concerning matters akin to it, because they recur so often, we shall speak particularly in the scholion.

We shall speak of legitimacy, of legitimate children, of illegitimate children, and of legitimation.

I. Legitimacy is the quality of legitimate or legitimated offspring, which produces certain determinate effects to be set forth later.

II. Legitimate children. With natural law considered, legitimate children are those conceived from a valid marriage. But with canon law considered, legitimate children are, with the things to be excepted excepted:

1. Those conceived from a valid or putative marriage.¹ It is said from a marriage, that is, from a mother joined in marriage and from the man to whom she is joined in marriage (canon 1114).

2. Those born from a valid or putative marriage, even if the parents at the time of conception had not yet entered marriage.

3. Those carried in the womb while there is a marriage between the pregnant woman and the father of the offspring, even if conception had place before the marriage, and the father or mother dies before the birth of the offspring, so that the offspring was neither conceived nor born from marriage. The aforesaid are to be called legitimate because of parity of reason, or, if you prefer, because of the formal equality of this case with the case of offspring merely born from marriage; hence canon 1114 is judged to comprehend them also.

I said with the things to be excepted excepted, because those are illegitimate who were conceived or born from a valid or putative marriage of parents for whom, because of solemn profession or a sacred Order received, the use of a previously contracted marriage was prohibited at the time of conception (canon 1114). Note: previously contracted; hence offspring born from a marriage entered between one bound by solemn vow and another, but with a dispensation, even if perhaps conceived before the marriage, is not illegitimate, because it is not a question of a marriage contracted before the vow. Moreover note:

a) Those conceived or born in marriage, that is, from a mother joined in marriage, are held to have been conceived or born from marriage, that is, from the mother and from the man to whom she is joined in marriage, and therefore are held as legitimate, unless the contrary is proved by evident arguments (canon 1115, § 1). This is proved, for example, by showing that intercourse did not have place during the time useful for conception, that is, from the 300th day to the 180th day before birth,² for example because of illness or because of absence. The declaration of the man or of the woman, even if confirmed by oath, does not suffice. I said: they are held as legitimate, but not of themselves from an ordinary presumption of law, since this is restricted only to some. Namely:

b) Those conceived or born in marriage are presumed to have been conceived or born from marriage, and consequently are presumed legitimate, if they were born at least after six months from the day the marriage was celebrated, or within ten months from the day conjugal life was dissolved (canon 1115, § 2). If a child is born within six months from the day conjugal life was dissolved, and the man at once denied that the offspring born was his, and other things also support the truth of the assertion, the presumption favors the man, and the burden of proving that he, that is, the man, is the father, rests on the other party.

c) In doubt whether offspring was conceived or born in marriage, for example exposed children, it seems that the offspring must be held legitimate; since it seems it must be held as conceived and born in marriage, and likewise from marriage, because a delict is not presumed; this being supposed, it must also be held legitimate unless the contrary is proved.

¹ An invalid marriage is called putative if it was celebrated in good faith by at least one party, until each party becomes certain of its nullity (canon 1015, § 4). It is disputed whether a marriage invalid because of defect of form can ever be held as putative.

² The useful time is computed in this way because birth commonly has place between 180 and 300 days after conception.

III. Illegitimate children. 1. Notion. Illegitimate children are: 1° those who were neither conceived nor born from a valid or putative marriage, nor carried in the womb while there was a marriage between the pregnant woman and the father of the offspring; 2° those conceived or born from a valid or putative marriage of parents for whom, because of solemn profession or because an Order had been received, the use of the previously contracted marriage was prohibited at the time of conception.

2. Division. Illegitimate children are distinguished into natural and spurious. Natural children are those who were procreated by parents who at the time either of conception or of birth or in the interval between the two could have been joined by valid marriage; moreover it suffices that they could have been so joined through a dispensation obtained.

Spurious children are those who were procreated by parents who, because of a diriment impediment not removed during the whole time from conception up to birth, could not have contracted valid marriage with each other.

Spurious children are subdivided into adulterine, sacrilegious, incestuous, nefarious, and simply spurious. Adulterine children are those born from adultery; sacrilegious, those born from a solemnly professed man or woman, or from a cleric constituted in sacred orders; incestuous, those born from consanguineous or affinal relatives in the prohibited degrees; nefarious, those procreated from consanguineous persons in the direct line. The rest are called simply spurious.

3. The effects of illegitimacy are:

a) Illegitimate persons are irregular by defect (canon 984, 1°), and therefore can licitly receive neither orders, whether major or minor, nor tonsure, and they are prohibited from exercising orders received (canon 968); hence they also cannot be admitted by the Ordinary into the seminary (canon 1363, § 1).

b) Illegitimate persons are kept from the Cardinalate (canon 232, § 2, 1°), from the Episcopate (canon 331, § 1, 1°), from the office of Abbot or Prelate nullius (canon 320, § 2), or from the office of major Superior in religious institutes (canon 504; cf. canon 488, 8°).

c) Illegitimate persons destined for the priesthood, as being irregular, cannot be admitted to the novitiate (canon 542, 2°).

¹ Cf. Schmitz, Die Stellung der unehelichen Kinder im geltenden kanonischen Recht; Mulders in Ned. Kath. Stemmen, 1931, p. 15 sq. and p. 33 sq.

IV. Legitimation. 1. Modes of legitimating. Legitimation is made, or can be made, as follows:

a) Through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even if not consummated, offspring is made legitimate, provided the parents were able to contract marriage with each other at the time of conception, or of pregnancy, or of birth (canon 1116), in other words, natural offspring is made legitimate. Therefore observe that offspring is also legitimated if a parent, after another marriage, contracts nuptials with the other parent of the offspring. Nevertheless, it is required that each be a parent of the offspring; but the consent of the offspring is not demanded; indeed legitimation would have place even if the offspring itself opposed its legitimation.

b) Through a dispensation granted over a diriment impediment, whether from ordinary power or from delegated power through a general indult, simply spurious and incestuous offspring is legitimated by that very fact, if any has already been born or conceived; it is not legitimated through a dispensation granted from delegated power through a rescript in particular cases (canon 1051). It is said:

alpha) Through a dispensation granted either from ordinary power or from delegated power through a general indult. The case obtains if the Holy See dispenses in gracious form, that is, without an executor; likewise if the Ordinary dispenses by force of canon 1043 or canon 1045, or of quinquennial faculties; likewise if the pastor dispenses by force of canon 1044 or canon 1045, § 3; likewise if the Holy See indeed dispenses in commissorial form, but with a necessary executor required, because then the Holy See itself also dispenses (vol. I, n. 209). In the case, however, with the formulas which the Sacred Congregation of the Sacraments uses being considered, it is imposed on the executor that he "decree and declare the offspring legitimate."

beta) Simply spurious and incestuous offspring is legitimated. Adulterine and sacrilegious offspring are excepted; nefarious offspring is not legitimated, because in such a marriage a dispensation is not granted.

gamma) If any has already been born or conceived: understand, as is clear, offspring which is truly illegitimate. Hence by offspring already conceived is to be understood offspring already conceived, but neither born nor carried in the womb after the marriage with dispensation was contracted or convalidated; for if it is born, or at least carried in the womb, after the marriage so contracted or convalidated, the offspring is legitimate, and therefore is not legitimated. But by dispensation there is legitimated offspring born before the dispensation; likewise offspring born after the dispensation but before marriage, whether this marriage is afterwards contracted, or is not contracted because of death, or, so others say, because of a cause independent of the will of the petitioners, or, so others say, for any cause whatever. The obvious sense of the law, which declares that offspring is legitimated by dispensation from the impediment, favors the last opinion.

delta) It is not legitimated through a dispensation granted from delegated power through a rescript in particular cases; this obtains, for example, if the Holy See dispenses in commissorial form with a voluntary executor required. For then the executor is delegated to dispense through a particular rescript.

Corollary I. If a diriment impediment to marriage is removed without dispensation, for example by the passage of time if the impediment of age was standing in the way, offspring is not legitimated by the very fact that the marriage is convalidated; rather there is need of a special rescript.¹

Corollary II. Where marriage is sanated in the root, illegitimate offspring is legitimated by force of the sanated marriage, if it is a question of natural offspring; by force of the dispensation which sanation in the root carries with it, if there is question of simply spurious or incestuous offspring.

c) Through a special rescript of the Holy See any illegitimate offspring can be legitimated. A rescript of this kind is granted for the external forum by the Sacred Congregation of the Sacraments or, if one party is non-Catholic, by the Holy Office; for the internal forum, by the Sacred Penitentiary.

2. Effects of legitimation. a) Children legitimated through subsequent marriage, as regards canonical effects, are in all things equated with legitimate children, unless something else has been expressly provided (canon 1117). Now it has been expressly provided that children, even if they have been legitimated through subsequent marriage, are kept from the Cardinalate (canon 232, § 2, 1°), from the Episcopate, and from the dignity of Abbot or Prelate nullius (canons 331, § 1, 1°; 320, § 2).

b) Children legitimated through dispensation or through a special rescript of the Holy See seem to be equated in all things with legitimate children, unless something else has been provided by common law or in the grant of the dispensation or in the special rescript. Now by common law it has been provided that children legitimated through dispensation or through a special rescript are kept from the Cardinalate, from the Episcopate, and from the dignity of Abbot or Prelate nullius (canon 331, § 1, 1°; canon 320, § 2). This must be deduced from the fact that canon 331, § 1, 1° declares: "legitimated even through subsequent marriage"; hence a fortiori if a son has been legitimated in another way.

c) If an illegitimate person is legitimated through sanation in the root, all effects of illegitimacy are removed, unless something else has been provided in the written grant. For sanation in the root carries with it, by a fiction of law, that the marriage is judged to have been valid from the beginning, as regards canonical effects (canon 1138), one of which certainly is the legitimacy of offspring. Hence those legitimated in this way are not of themselves kept even from the Cardinalate, the Episcopate, and the dignity of Abbot or Prelate nullius.

Note 1. Particular effects of illegitimacy, for example irregularity in relation to receiving Orders, can also be removed through dispensation. Besides, some particular effects are also removed in another way: thus, for example, irregularity for receiving Orders is also removed through solemn religious profession, but not inability, for example, for the office of major Superior (canon 504).

Note 2. It is very expedient that the legitimation of offspring and the mode by which this has been granted be noted by the pastor in the baptismal book, and therefore be signified to the respective pastor by the one who has obtained the legitimation.

¹ Pontifical Commission, December 6 (A.A.S. 1931, p. 25).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another legitimation is made by rescript of the Holy See.

Matrimony legitimately contracted induces several effects, both with respect to the rights and obligations of the spouses, and concerning the children who are born from that matrimony, whom it constitutes legitimate.

262. • I. Notion.

a) Legitimacy is the juridical condition of children whose birth is conformable to the prescriptions of the laws.

Legitimacy is distinguished in the ecclesiastical forum and in the civil forum. For someone can be held legitimate by the Church and illegitimate by the civil authority, and vice versa.

Here we shall treat only of legitimacy in the ecclesiastical forum.

b) Legitimation is an act of the law or of the prince, i.e., of the Roman Pontiff, by which an illegitimate child obtains the rights of a legitimate one, either wholly or in part.

263. • II. What things are required for legitimacy of birth.

"Children conceived or born from a valid or putative matrimony are legitimate, unless, on account of solemn religious profession or sacred order received by the parents, the use of matrimony previously contracted was prohibited at the time of conception." (Can. 1144.)

a) Not only those who were conceived from a valid or putative matrimony, but also those who were conceived before matrimony and born after the valid or putative matrimony of the parents, are legitimate by full right.

b) An exception is given which is very rarely verified. For if from two spouses joined by valid matrimony, even consummated, each or either has pronounced solemn vows, or the husband has legitimately received sacred orders, if afterwards, notwithstanding the vow or sacred Order, they have had carnal intercourse, the child born from such intercourse will be illegitimate.

264. • III. Proof of legitimacy.

a) "The father is he whom just nuptials demonstrate, unless the contrary is proved by evident arguments." (Can. 1115.)

1. A child born of a legitimate wife is held by the law as the child of the husband, if the husband does not reject paternity.

2. Even if the husband refuses to acknowledge the child as his own, or the wife confesses adultery, a child of this kind is held as legitimate by the Church until the contrary is proved by evident arguments, as is, e.g., the continuous absence of the husband from the tenth month to the completed sixth month before the birth of the child.

b) Nevertheless the aforesaid presumption has no place, so that the husband can reject paternity, if the child is born before six months from the day of the celebrated matrimony or after ten months from the day of dissolved conjugal life. (Can. 1115, § 2.) In this case the burden of proving legitimacy falls upon the child.

The reason is that scarcely any offspring is born before 180 or after 300 days from conception. If the child is born before six months, he cannot be the husband's except from fornication; if after ten months from the day of dissolved conjugal life, he cannot be the husband's except on the hypothesis of gestation contrary to the laws of nature, or of sexual intercourse between separated spouses. Now such hypotheses cannot be presumed. And therefore then legitimacy is not presumed and must be proved, unless the husband acquiesces by silence.¹

¹ Vermeersch-Creusen, cited work, t. II, n. 420.

265. • IV. Diverse modes of illegitimacy.

Illegitimate children are distinguished into:

1. natural children, namely those who have been born from simple fornication.

2. spurious children, namely those who have been born from adultery, sacrilege, i.e., from a person bound by a solemn or solemnized vow, or from incest.

266. • V. Legitimation of children.

Legitimacy is conferred in a twofold way: either by the law itself which declares legitimation annexed to some fact, or by a rescript of the Supreme Pontiff.

a) Legitimation is had by the fact itself:

1. "Through the subsequent matrimony of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated." (Can. 1116.)

1. But this condition is required: that "the parents were capable of contracting matrimony between themselves at the time of conception, or pregnancy, or birth." (Ibid.) But if in none of those times, namely conception, gestation, or birth, the parents were free from a diriment impediment, subsequent matrimony does not confer legitimacy.

2. "Children legitimated through subsequent matrimony, as far as canonical effects are concerned, are in all things equated to legitimate children, unless something else has been expressly provided." (Can. 1117.)

But the law excludes those thus legitimated only from the office of Cardinal, Bishop, Abbot nullius, or Prelate nullius. (Can. 232, § 2, 1°; Can. 331, § 1, 1°; Can. 320, § 2.)

2. Through solemn profession in a religious Order.

But legitimation of this kind is altogether partial, because it only removes the irregularity for orders which comes from illegitimacy. An illegitimate person solemnly professed can receive sacred orders, but he does not become suitable for the office of major superior (can. 504), or a fortiori of cardinal, bishop, or abbot or prelate nullius. (Canons cited above, § 2.)

3. Through sanation in the root of the matrimony.

Those who become legitimate from the sanation of matrimony in the root seem to be fully assimilated to legitimate persons, since by a fiction of law they are considered as legitimate from the beginning, and therefore, contrary to those legitimated through subsequent matrimony, able to become Cardinals and Bishops.²

² Vermeersch-Creusen, cited work, t. II, n. 455, 4.

4. Through dispensation from the impediments of matrimony, granted from ordinary power or delegated by a general indult. Adulterous or sacrilegious offspring, however, are excepted from legitimation. (Can. 1051.)

b) Legitimation can be conceded by rescript of the Supreme Pontiff or of the Congregations which are organs of his supreme power.

Then the extension of the grace conceded is to be measured from the tenor of the rescript.

S. Th., Suppl. q. 42, a. 3; q. 49 and q. 65, a. 1.

792. The effects of matrimony are some natural, others supernatural: for some belong to it insofar as it is a contract, others insofar as it is a sacrament. The natural effects are perfected by the supernatural, so that they are found in Christian matrimony in a much more perfect way.

793. The natural effects are the three intrinsic goods of matrimony, which are enumerated by St. Augustine, De bono coni. I, 32: "All these are goods, on account of which nuptials are good: offspring, fidelity, sacrament." This doctrine was commonly received by the Scholastics and adopted by the Council of Florence. The good of offspring is its procreation, education, and religious instruction. The good of fidelity is the mutual faithfulness which spouses owe to each other, by which positively one renders the conjugal debt to the other, and negatively neither is commingled with another person. The good of the sacrament, i.e., of the sacred sign, is the firmness and indissolubility which matrimony has by reason of its sacred signification, insofar as it is a sign representing the indissoluble union of Christ and the Church; whence it belongs also to the matrimony of unbelievers, although the firmness is stronger in the sacramental matrimony of the faithful. Thus Augustine, De Gen. ad litt. IX, 7:

"In fidelity it is attended to that, apart from the conjugal bond, there be no lying together with another man or another woman; in offspring, that it be received lovingly, nourished kindly, educated religiously; in sacrament, however, that the marriage not be separated, and that one dismissed, male or female, not be joined to another even for the sake of offspring. This is as it were the rule of nuptials, by which either the fecundity of nature is adorned or the depravity of incontinence is ruled."

St. Thomas observes, q. 49, a. 3, that among these three goods the third, namely, the good of the sacrament, is more worthy, and also more essential if it is considered in itself, because indissolubility is an essential property of matrimony according to itself, which cannot be lacking from its being, while offspring and fidelity, if considered in themselves, pertain to the use of matrimony and can be lacking. But if offspring and fidelity are considered according as they are in their principles, so that for offspring there is taken the intention of offspring, and for fidelity the duty of preserving fidelity, thus they are essential in such a way that without them matrimony cannot exist; - indeed thus offspring is first and most essential in matrimony, and fidelity second, and sacrament third. In the same way, it is more essential to man to have the being of nature than the being of grace, although the being of grace is more worthy.

794. The supernatural effect of matrimony is grace unitive of souls and restraining of concupiscence. - This the Council of Trent, sess. 24, explains: "Grace... which would perfect natural... love, and confirm indissoluble unity, and sanctify spouses (as generators, namely, so that they might be able to educate children to holiness), Christ himself, the institutor and perfecter of the venerable sacraments, merited for us by his passion."

Matrimony confers:

1° Habitual grace making one pleasing, which is of faith from the Council of Trent, sess. 24, can. 1, just as for the other sacraments: per se indeed second grace, because the sacrament was not instituted for blotting out sins but for sanctifying spouses; per accidens, however, probably first grace, if it is received in good faith by a contrite sinner who judges himself disposed. For it is fitting that those who ought to multiply and educate the children of God should themselves also be constituted children of God through grace.

2° Special sacramental grace, which supplies to grace making one pleasing a special help and a habitual vigor of powers assisting toward fulfilling the offices of marriage holily and moderating concupiscence, which draws back from these offices. Namely, it is given for conserving and perfecting conjugal love, for preserving fidelity and conjugal chastity integrally, for educating offspring well, and for bearing the other burdens of matrimony.

3° Consequently, a right to actual graces necessary for this end, to be obtained at opportune times throughout the whole of life.

Therefore, by receiving the sacrament of matrimony, the faithful, says Pius XI, "open for themselves the treasure of sacramental grace, from which they may draw supernatural powers for faithfully, holily, and perseveringly fulfilling, even to death, their duties and offices.

"For this sacrament, in those who do not place an obstacle, as they say, not only a) increases the permanent principle of supernatural life, namely, sanctifying grace, but also b) adds peculiar gifts, good motions of soul, seeds of grace, by increasing and perfecting the powers of nature, so that spouses may be able not only to understand by reason, but intimately to savor and firmly to hold, efficaciously to will and to fulfill in deed, whatever pertains to the conjugal state and its ends and offices; c) finally, it grants them a right to actual help to be obtained as often as they need it for fulfilling the duties of this state."

Here, besides the very grace making one pleasing, several things are indicated: peculiar added gifts, which rather indicate permanent habitual powers; - good motions, which are inspirations of actual grace; - seeds of grace, which seem to be the seeds of both deposited in the soul and afterward to be stirred up; - finally, the right to special actual help, but to be obtained by prayer, when it is more necessary.

But just as, the Pontiff continues, through Baptism and Order a man is deputed and consecrated by an indelible character to sacred duties, so by the conjugal bond, which in Christians is truly sacred, they are permanently deputed and as it were consecrated to the offices of Christian matrimony: not indeed by a character, because it is not a physical seal and does not grant sacred power, but by a bond of the moral order, which nevertheless is a permanent title to the sacramental grace necessary to spouses. From this it seems necessary to conclude that this sacrament revives during the whole time of marriage, in the case in which an obstacle is present and is removed.

795. Observations. - 1. Matrimony and its use are made honorable by its three goods, as Billuart shows from St. Thomas, diss. 4, a. 1: "No wise man ought to sustain any loss except for some recompense of an equal or better good. But in Matrimony several losses are incurred, several damages and inconveniences, which are compensated by these three assigned goods. Therefore. The minor is proved: Three chief damages and inconveniences are incurred in matrimony: 1st, lust, and from it the resulting detriment of the use of reason, debility of body, and dullness of the senses; and this damage is compensated by the good of offspring, or the procreation of children by whom the human race is propagated and God is perpetually worshiped. - The 2nd damage is the troublesome solicitude of pleasing the co-party, of receiving, conceiving, bearing, educating offspring, and providing for the things of the family; and this damage is compensated by the good of fidelity, by which one is held to render the debt to the other, nor can one be commingled with another. - The 3rd damage is a certain perpetual subjection or servitude by which the man is bound to the woman and the woman to the man; and that damage is compensated by the good of the sacrament, i.e., of the indissoluble bond, by which spouses represent the conjunction of Christ with the Church, and are held to love each other, as Christ loved the Church... Although this damage is much more compensated by the good of the sacrament properly taken for the efficacious sign of grace, insofar as it sanctifies spouses, confers on them supernatural helps for loving each other, and for sweetly and faithfully performing the other matrimonial duties and burdens even to the end of life."

Yet these goods are not an extrinsic cause excusing per accidens, on the part of the agent, something which otherwise would be evil; but they are "of the notion of matrimony," which on the part of the act is made honorable by these things intrinsic to it, "as though causing in it the honorableness which belongs to it according to itself," as St. Thomas says, q. 49, a. 1, ad 2.

2. The aforesaid goods, although they ought to be present in every matrimony, nevertheless are in Christian matrimony in a much more perfect way, as is luminously clear from the encyclical of Pius XI Casti connubii.

3. Moreover, the goods are of such great moment that sins opposed to them are mortal from their genus, and the exclusion of their obligation or debt from the contract of marriage would render it invalid.

4. In the cited encyclical Pius XI is wholly occupied in declaring the three goods, and in denouncing opposed errors and vices: a) To the good of offspring are opposed conjugal onanism, attack upon the life of offspring, unjust prohibition of marriage, or sterilization for eugenic reasons. - b) To the good of fidelity, adulterous violation of conjugal chastity, emancipation of the woman or violation of her subordination to the man, and violation of conjugal love. - c) To the good of the sacrament, secularization of matrimony, mixed marriages, and divorce.

Question 2. Who are legitimate children?

Resp. Legitimate are children conceived or born from a valid or putative marriage, unless the use of the marriage previously contracted was prohibited to the parents at the time of conception on account of solemn religious profession or a sacred order received (Can. 1114).

Those conceived or born from a valid marriage entered without a diriment impediment, or from an invalid marriage which nevertheless was celebrated in good faith by at least one party and hence is called putative, are legitimate unless conception occurred at a time when, on account of solemn religious profession or sacred order, the use of Marriage was prohibited. Therefore offspring sacrilegiously conceived, because the parent is a solemnly professed religious or in Sacred Orders, is not legitimate.

Question 4. What offspring is legitimated through subsequent marriage?

Resp. Through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated, offspring is made legitimate, provided the parents were capable of contracting marriage between themselves at the time of conception, or of pregnancy, or of nativity (Can. 1116).

The threefold time is to be noted, of conception, pregnancy, or nativity, in which the parents must be capable of contracting. Although they were incapable at the time of conception, provided they afterward became capable, the children are legitimated by the aforesaid subsequent marriage. Thus offspring born at a time when the parents were joined in marriage is legitimate, although at the time of conception they were incapable on account of some diriment impediment.¹

Legitimated children, as far as concerns canonical effects, are in all things equated with legitimate children, unless something else has been expressly provided (Can. 1117). Thus, for example, such persons are capable for tonsure, minor and sacred orders, and dignities in the Church; but not for the Cardinalate or Episcopate. Therefore, excepting certain prelatures, those legitimated are simply assimilated to legitimate children.

¹ Cf. Addenda, p. 1117, n. 69.