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The Theology and the Form of Marriage. Notes taken from DCA 5125 Matrimonial Law 1: Marriage Consent (cc. 1055-1062), and DCA 5126a PREPARATION FOR MARRIAGE, IMPEDIMENTS, FORM, MIXED MARRIAGES AND EFFECTS OF MARRIAGE
(cc. 1063-1094, 1108-1140)Winter 2011,
with permission from Prof. Francis Morrisey, O.M.I., JCD
and Prof. John Huels, JCD.
Notes for personal and private use of RC military chaplains. Any reproduction is forbidden without the express permission of the author.
I. THE NATURE OF CHRISTIAN MARRIAGE - CANONICAL NORMS
(cc. 1055-1062)
1. Constitutive elements of marriage (c. 1055)
2. The properties of marriage (c. 1056)
3. The nature of matrimonial consent (c. 1057)
4. The subjective right to marriage (c. 1058)
5. Applicable legal norms (c. 1059)
6. The juridical status of a celebrated marriage (c. 1060)
7. Types of marriages (c. 1061)
8. Canonical engagements (c. 1062)
INTRODUCTION
1. The course within the general programme
Among the canons of Book IV on the Church's mission of sanctifying, the canons on marriage have a privileged position. Indeed, the celebration of marriage touches most Christians in their daily lives.
In addition, we must recognize the fact that the ministry of canonists is often identified today with the tribunal apostolate carried out for those persons whose marriage has been unsuccessful. For this reason, the canons take on an importance that they would not normally have in an overall perspective of law. But, because of this particular importance, special attention must be given to the canons which canonists use on an almost daily basis as they carry out their ministry.
For these reasons, and other similar ones, we must examine canons 1055-1062 and 1095-1107 very attentively.
2. Special focus of the course
The aim of this session of this workshop is to help you attain a thorough knowledge of the norms of canons 1055-1062 and 1095-1107. Continued reading on your part will enable us to alleviate the misery of many Catholics who wish to regularize their situation before the church. This is the particular meaning of this course.
I. THE NATURE OF CHRISTIAN MARRIAGE - CONCILIAR TEACHINGS
Introduction
In recent years there have been a number of significant developments in the understanding of the nature of Christian marriage. These are centered on three particular areas of concern:
1) While marriage was formerly considered as a contract requiring the same fundamental conditions for validity as any other contract, today it is presented as a covenant or pact establishing an intimate partnership of conjugal life and love. The covenant dimension adds to the contract, what could be called the "faith" and the "long-range dimensions" of the agreement.
2) It was generally taught that the primary end of marriage was the procreation and education of children, while the secondary ends were mutual help and remedy to concupiscence (see 1917 Code, c. 1013). Today, following the teachings of the encyclical "Humanae Vitae", conjugal love is considered as an essential element of marriage, without reference to primary or secondary ends. The 1983 Code of Canon Law will speak of this reality in terms of the "bonum coniugum". In other words, the personal dimension of marriage now takes on special significance.
3) The essential giving in marriage was the right to those acts apt for the generation of children (the "ius in corpus"). Today, the emphasis is placed on the total giving of self ("donatio") rather than just on the right to physical acts. Therefore, instead of considering marriage simply as a union of two bodies, it is now presented in terms of a union of two persons. ("Person" includes the body, but it also entails the mind, heart, emotions, etc.). This last change is significant, because while many persons might be able to effect a union of bodies, they are unable to bring about a union of minds, and thus are unable to enter into sacramental marriage.
The development of a renewed theology of marriage was also the result of the acceptance or recognition of the contribution that the psychological and psychiatric sciences, as well as all the behavioural sciences, have given us as we strive to understand better the structure and make-up of the total human person.
1. The background texts
(Note: many of the ideas in this section, and in the following one, were originally taken from R. SANSON, "Jurisprudence for Marriage: Based on Doctrine", in Studia Canonica, 10(1976), pp. 5-36).
In 1963, after the Council had begun its deliberations, but before Gaudium et Spes, Ford and Kelly (Fundamental Moral Theology, Vol. II) taught that conjugal love was an essential end of marriage: "Conjugal love is the virtue by which man and wife wish to communicate to each other the benefits proper to marriage" (p. 110). Among these benefits, they list "the sharing of each other's lives in the work to which the very instinct of parental love impel father and mother" (ibid.).
2. Humanae vitae
In 1968, Paul VI issued the encyclical Humanae vitae. Unfortunately, the beautiful theology of conjugal love which it contains was effectively ignored because of the "birth control debate". Pope Paul did not use the terms "ends" at all. Instead, he gave the characteristics of human love; the first time, it seems, that an official document of the magisterium applies the new understanding of marriage initiated by the council.
The encyclical gives five characteristics of conjugal love (Nos. 9-10):
- it must be fully human, that is an expression of the senses and of the spirit, arising from the unity of heart and soul, presented in the light of an integral vision of human perfection;
- it must be total, generously sharing everything, with oblative love that excludes selfishness and undue reservations;
- it must be faithful and exclusive until death.
- it must be fruitful, that is, ordained toward the raising up of new life;
- it must be moral, in the sense that the responsible exercise of parenthood implies that husband and wife recognize fully their own duties toward God, toward themselves, toward the family and toward society, in a correct hierarchy of values.
This teaching was explicitly repeated by Paul VI in his addresses of May 4, 1970 and February 9, 1976.
4. Rotal jurisprudence and decisions of other tribunals
It was on February 25, 1969, that a decision by Msgr. Lucien Anné brought the conciliar teaching to the level of law and marked an important breakthrough in juridical practice.
While Anné had broken the ice in this matter, the sailing was still not smooth. Indeed, for a short period of time, it seems that other Rotal judges did not care to admit this new interpretation of law.
Yet, in spite of these hesitations, we can safely state that the notion of conjugal love is accepted in jurisprudence under the heading of the bonum coniugum which some reputable authors interpret as the capacity to commit oneself for life and the capacity to share much of life with a partner.
The interrelated fundamental finality of marriage can be seen -- not in the mere multiplication of human life, nor in the human development of spouses -- but rather in the fulfilment and diffusion of a value which transcends and incorporates these particular aspects: love, in imitation of its supreme source, God, Who is love.
a. The rights and duties of the community of conjugal life
In the Rotal decision given by Msgr. Anné on February 25, 1969, he mentions the rights pertaining to the "consortium vitae coniugalis" as outlined in Gaudium et Spes, No. 48. Yet, no detailed analysis was given of the rights which could be considered essential to any Christian marriage in the true sense of the word, and as described in Humanae vitae.
An attempt to do so was made in a decision given by the Montreal Appeal Tribunal, April 20, 1972; the substance of this decision was reprinted in Studia Canonica, 6(1972), pp. 99-104, G. LESAGE, "The `Consortium Vitae Coniugalis': Nature and Applications." Father Lesage listed some fifteen elements, the absence of which to a vital degree would deprive the partner of an essential right of marriage. They included:
1) Balance and maturity required for truly human conduct (the person taken as an individual must be able to function as a rational being).
- maturity of personal conduct in the relationships of daily life;
- self-mastery, which is indispensable for any reasonable and human conduct;
- stability of conduct and ability to adapt to circumstances.
2) The relationship of interpersonal and heterosexual friendship (the person must be capable of acting as a social being).
- oblative love, which is seeking not only for egotistical satisfaction, but for the good and happiness of the partner;
- respect for the personality or sensitivity of the partner, both in the affective and sexual orders;
- kindness and gentleness of character and manners in mutual relationships.
3) The aptitude to cooperate sufficiently for conjugal assistance (the person must be capable of hetero- sexual and conjugal love)
- the respect for Christian morality and for the partner's conscience in sexual and conjugal relationships;
- respective responsibility of husband and wife in conjugal friendship;
- mastery of passions, impulses or irrational instincts which would place mutual understanding or life in peril.
4) Mental balance and the sense of responsibility required for the material welfare of the family
- respective responsibility of both husband and wife in providing for the material
well-being of the home, stability in employment, budgetary foresight, etc;
- mutual sharing and consultation on important points of conjugal and family life;
- objectivity and realism in the evaluation of happenings and events of family or conjugal life;
- lucidity in the choice and determination of the ends and means to attain them.
5) Psychic capacity to participate, each party in his or her own way, in promoting the welfare of the children (the person must be capable of being a parent)
- moral and psychological responsibility in the generation of children;
- parental responsibility in the care for, love and education of children.
The simple absence of one or many of the above would not, of course, signify automatically the nullity of a marriage. Rather, the court must determine that the spouse (or both of them) was RADICALLY UNABLE, in spite of good will, to meet these needs sufficiently and was thus depriving the partner of an essential right (or element) of Christian marriage; the person is incapable of fulfilling the object of the promise, and, consequently, enters into an invalid union.
Such a listing can be of assistance when it is question of determining that a person was unable to assume the essential responsibilities of marriage (cf. c. 1095, 3˚).
b) Community of life and cohabitation
In the decision of the Apostolic Signatura mentioned above (November 29, 1975), community of life is identified with cohabitation.
Personally, I find it very hard to accept such an opinion, since cohabitation is a material fact (e.g., living under one roof); community of life is identified with sharing and interpersonal relations.
c) The elements of the community of conjugal life and love, as based on the characteristics of conjugal love
In the period of uncertainty between the Council and the promulgation of the 1983 Code, another possible explanation of the rights of the community of life was found in a decision c. Morrisey, June 11, 1975, in Studia Canonica, 9(1975), pp.184-187.
The basis of this approach lay in the fact that the human person is to be a "rational animal" (fully human...).
Then, the person must be seen as a social being (total...).
On a third level, the person must be capable of heterosexual friendship (moral...).
Fourthly, the person must be capable of conjugal relationships (faithful and exclusive...).
Fifthly, the person must be capable of being a parent (fruitful...).
5. The Catechism of the Catholic Church
The articles of the Catechism of the Catholic Church summarize in an exceptional fashion the conciliar teachings, as well as the basic principles of the Code. Indeed, Art. 1601, which begins the section, is a direct quote from canon 1055, §1.
The entire section (NN. 1601-1666) must be read carefully since it serves as a base for the correct interpretation of the canons which follow.
CONCLUSION
The conciliar teaching has had far-reaching effects on the under-standing of the nature of Christian marriage. This understanding has extended into the juridical field, particularly in three areas:
- the understanding of marriage as a covenant;
- the recognition of the significance of conjugal love;
- the identification of marriage with a community of life and love.
As can be seen, the transposition of the conciliar teaching to the juridical level was not always been a smooth one. However, although the basic doctrine is in peaceful possession now, there are still some judges and writers who seem to share a nostalgia for the former positions. Nevertheless, we will be on good solid ground using the position taken by the 1983 Code. It is this teaching which we shall now examine.
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The Canons
Can. 1055 §1 The marriage covenant, by which a man and a woman establish between
themselves a partnership of their whole life, and which of its own very nature is ordered
to the well-being of the spouses and to the procreation and upbringing of children, has,
between the baptised, been raised by Christ the Lord to the dignity of a sacrament.
§2 Consequently, a valid marriage contract cannot exist between baptised persons
without its being by that very fact a sacrament.
Can. 1056 The essential properties of marriage are unity and indissolubility; in christian
marriage they acquire a distinctive firmness by reason of the sacrament.
Can. 1057 §1 A marriage is brought into being by the lawfully manifested consent of
persons who are legally capable. This consent cannot be supplied by any human power.
§2 Matrimonial consent is an act of will by which a man and a woman by an
irrevocable covenant mutually give and accept one another for the purpose of establishing
a marriage.
Can. 1058 All can contract marriage who are not prohibited by law.
Can. 1059 The marriage of catholics, even if only one party is baptised, is governed not
only by divine law but also by canon law, without prejudice to the competence of the
civil authority in respect of the merely civil effects of the marriage.
Can. 1060 Marriage enjoys the favour of law. Consequently, in doubt the validity of a
marriage must be upheld until the contrary is proven.
Can. 1061 §1 A valid marriage between baptised persons is said to be merely ratified, if it