Canon law of marriage

Indissolubility of Marriage
In 406 two Synods of North Africa, called the 11th Council of Carthage stated, we decree that
according to the e!angelic and a"ostolic disci"line neither a husband dismissed by his wife, nor
a wife dismissed by her husband may marry another# but that they are to remain as they are or to
be reconciled to one another$ if they des"ise this law they ought to be sub%ected to "enance$ and
on this sub%ect a im"erial law out to be "romulgated$ the canon&s teaching on indissolubility
a""ears to be absolute i$e$ it does not allow for any e'ce"tion$ this is im"ortant because they was
and still is, a debate o!er Matther 1()( which has *esus saying, Now i say this to you) anyone
who di!orces his wife+ I am not s"ea,ing of an illicit marriage+ marries another is guilty of
adultery$ the e'"ression illicit marriage is a translation of the -ree, word "roneia.
/$ it is "ossible to translate the this word as adultery$ thus the te't from Matthew could mean that
anyone who di!orces his wife and marries another is guilty of adultery e'ce"t in the case of him
di!orcing his wife because she has committed adultery$ but this -ree, word "orneia can ha!e at
least three other meanings) a relationshi" that is not really a marriage because of some legal
im"ediment# a betrothal# an incestous union which is not a true marriage$ in all these cases the
man would be able to di!orce his wife and marry another without being guilty of adultery for the
sim"le reason that his first marriage was not a real marriage$ 0owe!er we translate the word
"orneia, the canon from the 11th cough of Carthage does not refer to any e'ce"tion to the rule
that a di!orced "erson may not remarry$
In 1(0s, the Council of 2riuli was con!ened in northweast Italy$ 3he 10th canon of the council
e'"licitly teaches that the bond of marriage is indissoluble$ it also states that there is not
e'ce"tion to this rule, not e!en in the case of adultery$ with regard to Matthew&s gos"el the canon
states that a sudy of Saint *erome shows that the gos"el teaches that a man whose wife has
committed adultery is free to dismiss her, but he must not remarry because his first marriage still
e'ists$ 0ence there was no e'ce"tion at all to the indissolubility of marriage$
In summery, from within the church of the 4oman 5m"ire, there emerged slowly two "rinci"les
about marriage and consent$ the first is based u"on 4oman ci!il law, namely that consent ma,es
marriage$ thus marriage does not begin with consummation, or the rece"tion of a "riest&s
blessing$ the second "rinci"le namely that once marital consent has been gi!en it cannot be
withdrawn generally disagreed with 4oman ci!il law$ this second "rinci"le reaffirms that the
understanding that marriage is indissoluble$ 5!entually the church authorities made it clear that
this indissolubility does not allow for e'ce"tions such as cases in!ol!ing adultery$
Archbisho" 0Incmar of 4heims and his em"hasis on consummation$
6hen "o"e Nicholas 1 wrote his re"ly to the 7ulgarian church he has a !ery im"ortant
contem"orary Archbisho" 0incmar of 4heims, who bel office from 849 until his death in 88:$
6hile ;o"e Nicholas was u"holding the centrality of consent alone with regard to the !alidity of
marriage, 0incmar was teaching that marital consent must be followed by se'ual intercourse
without which the marriage is incom"lete$ in his time there was a marriage case in which he was
as,ed to gi!e a theological %udgement$
the case in!ol!ed A<uitanian nobleman named Ste"hen$ 0e married the daughter of 4egimund
another aristocrat$ After the wedding ceremony Ste"hen said that he could not consummate the
marriage$ 0e e'"lained that "rior to the wedding he had had an affair with a close relation of his
intended wife$ 0e thus argued that the marriage was in!alid because of the the im"ediment of
affinity$ 2urthermore, his conscience forbade him to consummate the marriage$ the case had two
im"otent elements$ first there was the alleged im"ediemtn of affinity which if "ro!ed, would
ha!e resulted in the marriage being declared null and !oid$ the second was the fact of non+
consummation$ with regard to the first element, Ste"hen refused to name the relati!e of his wife
with whom he had had the affair$ as a result, the e'istence of the im"ediment of affinity could not
be "ro!ed$ therefore if Ste"hen wanted to be declared free from the obligation of the marriage,
his only ho"e was the fact that the marriage had not been consummated$ accordingly in 860 he
referred the matter to the bisho"s assembled at the Synod of 3ou=y$ 3hey in turn as,ed incmar
for his o"inion$ In res"onse 0incmar wrote concerning the marriage of Ste"hen and the
daughter of Count 4egimund$ In it he gi!e reason why he belie!es that although a marriage
begins with the wedding ceremony, it is not com"lete until it has been consummated se'ually$ for
0incmar se'ual intercourse between s"ouses ma,es their marriage share in the bond that e'ists
between Christ and his church$ he bases his argument on Augustine) not all weddings ma,e the
con%ugal bond, such as those which are not followed by the union of se'es$ Marriages do not
ha!e in themsel!es the symbolism of Christ and the church as the blessed Augustine says if the
s"ouses do not a!ail themsel!es of each other maritally+ that is if the union of the se'es has not
followed u" the marriages$
1:th century 3rance) Marriage is centred on >o!e and created by Consent$
?es"ite Archbisho" 0incmar&s em"hasis on the role of se'ual intercourse within marriage, most
of the Church&s tradition ac,nowledged that it is the consent of the cou"le that brings a marriage
into e'istence$ this understanding had been "resent in the 4oman 5m"ire before Christ and was
ado"ted by the Church though out the 5m"ire$ 5!en in the -ermanic regions consent came to be
understood as the factor necessary to bring a marriage into e'istence although e'ternal "roof was
re<uired$ this a""reciation of mutual consent reached a clima' in 1:th century 2rance$ three great
thin,ers I!o of Chartres, 0ugh of Saint @ictor and ;eter >ombard wrote about the necessity and
the sufficiency of marital consent$
I!o who was bisho" of Chartres from 10(1 sought in his writing di!orce and remarriage$ I!o
used authorities such as ;o"e -regory 11 who "ermitted di!orce and remarriage when one of the
s"ouses is im"otent to argue that im"otence is a ground for dissol!ing a marriage$ I!o howe!er
did not consider im"otence to be an im"ediment to marriage which would ma,e any attem"ted
marriage null and !oid from the beginning$ instead he acce"ts that such a marriage can e'ist but
that it can be dissol!ed in order to allow remarriage$ I!o e'"ands the <uestion of im"otence to
the lac, of se'ual intercourse generally$ I!o cites canon :1 of the 2ran,ish Council of @erberies
which was held around 196$ this canon allows the wife to lea!e her husband if she swears by the
cross that she ne!er had se'ual intercourse with him$ the central issue here is no longer
im"otence but intercourse$ although reference is made to the "ossibility of se"arating no
mention is made of remarriage$ remarriage would be an indication that the first marriage is
actually dissol!ed$ It howe!er seems that I!o regards im"otence to be a ground for dissolution
and thus remarriage$
2or I!o consent alone brings a marriage into e'istence$ 2or a genuine marriage to e'ist, the
cou"le must be of e<ual standing$ if one "arty is free and the other other "arty is a sla!e, a
marriage cannot e'ist between them because they cannot share in the symbolism of the
relationshi" between christ and his church$ I!o was accused by one bisho" of 5!reu' of
dissol!ing certain marriages between free men and sla!es and !is+!ersa$ In his res"onse he
refutes the claim stating that he was not dissol!ing such marriages because they had ne!er
e'isted in the first "lace$ when a sla!e did not di!ulge his or her state and entered the union with
the free "arty, the free "arty lost his status and became a "erson of a lower ran,$ 2or I!o true lo!e
could not wish the other to lose their status of being free hence the marriage could not stand$
howe!er if the free "arty ,nows of the ser!ile ran, of the other at the time of marriage the
marriage after consent holds good$ but if a free man has ta,en a sla!e girl in marriage, he does
not ha!e the freedom to dismiss her if, first ,nowing her condition and consenting, they ha!e
contructed marriage because consent ma,es marriage not intercourse$ the whole of I!o&s
argument is based u"on the "rinci"le of lo!e and so "uts lo!e at the centre of marriage$
0ugh of Saint @ictor) Consent and consummation are im"ortant but only consent is necessary$
In his wor, on the !irginity of the blessed !irgin Mary, in which he u"holds both the !irginity
of Mary as well as the fullness of her marriage he as,s a rhetorical <uestion) for what is
marriage unless it is the lawful fellowshi" between a man and a woman in which it is clear that
each owes himself to the other by mutual consentA
hugh "rimarily describes marriage as fellowshi" %ust as Augustine argues that marriage is for
com"anionshi" and that it is within the com"anionshi" of marriage that lo!e and friendshi" are
e'changed$ 0ugh&s definition of states that this fellowshi" is brought about by the mutual consent
of the cou"le$ through this consent each owes himself or herself to the other$ this owing is to
be considered in two ways, that one certainly reser!es oneself for the other and that one does not
refuse oneself to the other$ one reser!es oneself, that is , after gi!ing consent one does not switch
to another fellowshi"$ one does not refuse, that is one does not se"arate oneself from the
common fellowshi" of one with the other$ each s"ouse gi!es himself or herself to the other in a
faithful and "ermanent way$ hugh em"hasises this "ermanence$ therefore free consent lawfully
gi!en between a man and a woman, which obliges each to the other is that which ma,es
marriage$ and the marriage is the fellowshi" itself, held together by such consent where neither is
released from the debt whilst the other is ali!e$
hugh e'"lains that as well as consent to marriage there is consent to intercourse$ there is one
ma%or difference between the two ty"es of consent$ whereas consent to marriage brings about
the marriage, consent to intercourse is a conse<uence not a "roducer of marriage$ therefore 0ugh
understands the relationshi" between marriage, intercourse and the two ty"es of consent in terms
of cause and effect$ initially there is consent to marriage$ this in turn "roduces marriage$ this
allies to all married cou"les including Mary and *ose"h$ 6hat then follows is that the husband
and wife consent to intercourse$ they do not ha!e to, but if they do then intercourse follows$ In
the case of Mary and *ose"h 0ugh states that this did not ha""en$ 0ence 0ugh u"holds the
!alidity of the marriage of Mary and *ose"h while maintaining the !irginity of Mary$ Intercourse
is de"endent on marriage and not the other way round$ 0ugh regards Mary&s marriage to *ose"h
to be a more genuine and holy marriage because it was held together by the bond of charity and
not by conscu"icence of the flesh or by the flame of lust$
0ugh understands charity and lo!e to be central to marriage$ 0ugh ac,nowledges that inercourse
within marriage is a sacrament of the relationshi" between christ and his church, that is, it
signifies it and share in it$ but he belie!es that the sacrament is greater in the realm of lo!e$ the
%oining of hearts shares in the union of god and the soul$ 3he lo!e in marriage according to 0ugh
does not ha!e to be se'ual although their fellowshi" may find e'"ression in se'ual union$ when
it does it is a sacrament of the bond between christ and his church$ 2Br 0ugh thus marriage is far
more than a lawful occasion for se'# it is a lo!ing union between a man and a woman$ it is a
lo!ing community in which each s"ouse sacrifices himself or herself for the other$ this sacrifice
in!ol!es the whole "erson, body, heart, s"irit and soul$ In his wor, &on the sacrament of
marriage&, he gi!es a definition of marriage) marriage is that fellowshi", which is consecrated
by the co!enant of mutual es"ousal when each by free "romise obliges himself or herself to the
other so that from then on neither may switch to the fellowshi" of another while the other other
s"ouse is ali!e, nor may he or she se"arate from that fellowshi" which is mutually fi'ed$
marriage thus is a fellowshi" brought about by mutual consent of the cou"le$ consent is
necessary and sufficient for the e'istence of a marriage$ 0ugh em"hasises the dimension of lo!e
within marriage in line with Augustine&s !iew that marriage is not good solely because of the
"rocreation of children but also because of the fellowshi" or com"anionshi" that e'ists between
the cou"les$ in marriage the holiness of the sacrament is of far more !alue than the fruitfulness
of the womb$ thus hugh regards marriage without children to be still a marriage$ If one s"ouse is
unfaithful the marriage does not cease to e'ist$ 0owe!er the third good i$e$ the good of the
sacrament must a""ly to all marriages, because e!ery marriage is essentially a fellowshi" which
is a sacrament of the bond between -od and the soul$ if this good should be absent, then it must
be because there is no marriage$
from the definition of marriage used by 0ugh it must be noted that the cou"le&s mutual consent
binds them together for life$ their consent gi!es rise to the indissolubility of their marriage$ this
"ermanent fellowshi" is therefore a sacrament of the "ermanent bond between -od and the soul$
3hus 0ugh is arguing that it is a sacrament because it is indissoluble not that it is indissoluble
because it is a sacrament$ only the consent of christians can "roduce indissoluble marriages$
;eter >ombard) the "innacle of consensual !iew of marriage$
;eter >ombard further interrogated the issue of consent$ he made a distinction between consent
about the future which is seen in the engagement of those who want to get married and consent
about the "resent seen when they actually get married$ marriage is brought into e'istence by
consent about the "resent$ for the efficient cause of marriage is consent, not without
<ualification, but through words e'"ressed, not about the future, but about the "resent$ for it they
consent about the future saying) i will ta,e you later as my husband and i too with you as my
wife this consent is not efficacious of marriage$
;eter also argues li,e hugh that of the three good of Augustine, the good of children and of
fidelity can be se"arated from marriage but the good of the sacrament can&t$ for ;eter consent
alone brings a marriage into e'istence and this !ery consent is the sacrament of Christ&s bond
with his church$ se'ual intercourse enables the body to e'"ress "hysically the consent of the
s"ouses$ with ;eter&s teaching ecclesiastical courts would now regard non consummated
marriages to be as indissoluble as consummated ones$
-ratian
the 1:th century saw the consensual understanding of marriage reach its clima' with ;eter
>ombard of ;aris$ ;aris was howe!er not the only "lace where the <uestion of marriage was
begin considered$ In Italy at 7ologna another great scholar was at wor, and he was -ratian$ 0is
writings ha!e been most influential on the Catholic Church&s understanding of marriage and the
corres"onding canon law to this day$
-ratian who was a mon, came u" with a Concodance of ?iscordant Canons in which he sought
to harmonise the !arious o"inions of church authorities$ the first "art deals with church law, the
rights and "ublications of clergy and the administration of church "ro"erty$ in the second "art he
e'amines marriage among other things while in the third he deals with liturgical issues$
-ratian introduced consummation into the consensual !iew of marriage$ 0e brought the two
schools of thought we s"o,e of earlier with the conclusion that ma triage begins with the consent
of the marriage "artners# this is an initiates marriage$ but the marriage is com"leted by the se'ual
intercourse# this is a confirmed marriage$ 2or -ratian se'ual intercourse is so im"ortant within
marriage that its natural im"ossibility as a result of im"otence means that there can be no
marriage at all$
-ratian also s"ea,s of two unba"tised marrying with one later con!erting recei!ing ba"tism$ if
the other s"ouse refuse to li!e with him or her because of his or her new state the christian "arty
is free to li!e and marry a christian$ this is the ;auline "ri!ilege$
in summery for -ratian it is se'ual intercourse which com"lete marriage ma,ing it an
indissoluble sacrament$ 6Ith -ratian marriage is reduced to the s"ouses ha!ing se'ual rights
o!er each other$ as a result im"otence becomes a serious obstacle to entering marriage$ -ratian
gi!es a strict inter"retation of Matthew 1()(, allowing no e'ce"tions to the rule against di!orce
and remarriage$ des"ite this he inter"rets ;aul broadly "ermitting a con!ert to christianity who
was legitimately married to di!orce and remarry should the unba"tised "arty refuse to remain$
3he Council of 3rent and Marriage
3he 16th century saw the church confronted by may criticisms$ 3he ;rotestant reformation was
seen to gi!e rise to the necessity of affirming that marriage is one of the sacraments instituted by
Christ$ 3he church&s teaching on monogamy was being <uestioned$ Cing 0enry @III of 5ngland
was in dis"ute with 4ome because he wished to remarry$ >uther argued that the church was
wrong to say that adultery does not dissol!e marriage$ 3he church con!ened a council to address
these <uestions among other things$ At the :4th session under ;o"e ;ius the 4th the council
"romulgated its doctrine concerning the sacrament of marriage$ In it, the council teaches that
marriage was from the !ery beginning "er"etual and indissoluble$ 3rent went on to state that
marriage was a sacrament instituted by Christ$ therefore the natural lo!e which e'ists in marriage
was "erfected by the grace of the sacrament$ this grace confirms the indissoluble bond and
sanctifies the s"ouses$ the council u"held the indissolubility of the marriage bond,
the council decree concerning the reform of matrimony 3ametsi "romulgated on 11+11+196D
stated that consent, freely gi!en, creates a marriage$ thus children could genuinely marry without
the consent of their "arents$ this was o""osed to what >uther taught that such "ermission was
necessary for !alidity$ 3ametsi goes on to say that for good reasons the church has forbidden
children to marry without their "arents& "ermission$ that is, although such marriages are !alid,
they are unlawful$ ?es"ite its re%ection of >uther&s "osition regarding the marriage of children,
3ametsi does acce"t that clandestine marriages can gi!e rise to serious abuses$ therefore, as
agreed by the debate, it "ro"oses that in future all marriages be "ublic$ 3ametsi re<uires that the
"arish "riest of the "arties announces "ublicly during mass, on D consecuti!e feast day the names
of those intending to marry$in this way, anyone who ,nows why a marriage should not ta,e "lace
has an o""ortunity to inform the "riest and so "re!ent the wedding$ the marriage according to
3ametsi was to ta,e "lace in the "resence of the cou"le&s "arish "riest and two or three other
witnesses$ without this the marriage is in!alid$ once the "riest had heard the cou"le&s mutual
consent, he was to declare them married and to bestow the church&s blessing$ 3ametsi e'horts
cou"les not to li!e together until they ha!e recei!ed such a blessing$ further the decree instructs
"riests to ,ee" marriage registers that will "ro!ide "roof of marriage$ In 1(01 the Sacred
Congragtion of the Council under ;o"e ;ius E issued its decree Ne temere, which sim"lified the
norms of 3ametsi$ Ne temere introduced the &e'traordinary& form of marriage for when no "riest
is a!ailable for a "eriod of a month$ It allows the e'change of consent in front of two witnesses
alone$
In summery, des"ite the "ractical "roblems with 3ametsi, the Council of 3rent managed to clarify
the church&s teaching on marriage$ It made it clear that the church had %urisdiction o!er marriage
because it is a s"iritual matter$ Marriage was one of the sacraments instituted by Christ$ -I!en its
%urisdiction o!er marriages the Church could thus define im"ediments which "re!ented
marriages as well as dis"ense from them$3rent u"held the ancient teaching that consent made
marriage$ it howe!er taught that mutual consent made marriage but taught that the church had
authority to determine how this consent was to be e'changed$
3he 16th century e'tensions to -ratian&s ;auline ;ri!ilege$
the 16th century gra""led still with the <uestion how indissoluble a created marriage was$ Bn
this sub%ect from the time of -ratian it was seen that St ;aul&s 1st letter to the Corithians
contained a "assage which en%oys a double inter"retation$ one of the inter"retation suggested that
marriage could be dissol!ed, albeit under a strict set of circumstances$ ;aul considers the case of
a non christian married cou"le one of whom conferts to christianity$ the unba"tised s"ouse refuse
to li!e in the christian "arty and lea!es$;aul said that the se"aration could ta,e "lace and that the
christian was no longer tied$ this statement is ambiguous$ was ;aul saying that the christian "arty
although still bound by the marriage did not ha!e to li!e with his or her s"ouse$ Br was ;ual
more radical that is, the christian was no longer bound by the marriage itself and so was free to
remarry$A It had been noted how the 1:th century scholar 0ugh of St @ictor taught that only the
marriages of christians are indissoluble$ the church since the 1: and 1Dth centuries both officialy
and uni!ersally allowed a con!ert to remarry when the unba"tised s"ouse refuses to cohabit
"eacefully$ 3his became ,nown as the ;auline "ri!ilege$ from that time until the "resent two
conditions ha!e been necessary) first marriage is between two non christians, and it is the
unba"tised s"ouse not the con!ert to christianity who is res"onsible for the failure of the
marriage$
Although ;aul "ro!ided a solution to a "articular ty"e of "astoral "roblem, another "roblem had
arisen by the 16th century$ 3he S"anish and ;ortuguese had colonies in South America and the
Indies$ In these areas, the catholic church began to grow in number with many new con!erts$ it
was not uncommon for an unba"tised man to ha!e more than one wife$ if such a man wished to
be ba"tised and enter the catholic church it was necessary for him to ,ee" his first wife and
dismiss the others$ but what if he could not remember which was his first wifeA ;o"e ;aul 111
issued his a"ostolic constitution Altitudo which ga!e a solution$ 30e holy 2ather confirmed the
teaching that the man should ,ee" his first wife$ in cases where he could not remember his first
wife he was free to "ic, any one of his wi!es and dismiss the rest$ the ;a"al solution has many
conse<uences$ it ac,nowledges the !alidity of the man&s first non christian marriage$ as a result
his subse<uent marriages are not recognised# this is why he should choose his first wife$ what is
original about Altitudo is that it "ermits the man to choose any wife if he cannot remember
which was the first$ thus the woman of his choice is not really his wife hence the re<uirement to
go through a form of marriage with her$ what about his first marriageA it is dissol!ed so that he
can marry this other woman$ >i,e the ;auline ;ri!ilege, Altitudo "ermits the dissolution of a non
Christian marriage$ it is not an a""lication of the ;auline ;ri!ilege, howe!er, because it is not
necessary that the first wife either refuse to be ba"tised or to li!e "eacefully with her con!ert
husband$ 0ence ;o"e ;aul introduced a new ground for dissol!ing marriages based u"on the
fact that a marriage between two unba"tised "ersons is not absolutely indissoluble$
the use of the dissolution outlined in Altitudo could gi!e rise to the two following scenarios$ the
first is that the man could actually choose his first wife without ,nowing it$ he would thus go
through a second form of marriage with her$ It could be argued that in such a case the ceremony
would ha!e no effect for he is already married to her$ the second is that the man recei!es
ba"tism and is about to marry a woman who was not not his first wife, when his first wife is also
ba"tised without ,nowing it$ in this case, his first marriage is a christian one, for both he and his
first wife are ba"tised$ 6ould Altitudo allow dissolution of that marriageA It would because the
marriage was not consummated after it became a christian marriage$In this case hence the
dissolution is not based u"on the marriage being a non Christian one but on it being
unconsummated$
7y the end of the 16 century the church&s matrimonial disci"line recognised one ty"e of marriage
which "ossessed absolute indissolubility+ namely a marriage between two ba"tised "ersons
which had been consummated se'ually after both s"ouses had been ba"tised$ such a marriage
could only be dissol!ed by the death of a s"ouse$ conse<uently a marriage might be o"en to
dissolution for e'am"le it it was not christian, if there had been no se'ual intercourse, or if there
was intercourse "rior in the marriage only "rior to both s"ouses recei!ing ba"tism$
3he 1(11 Code of Canon >aw
3he 1(11 code of canon law "romulgated by ;o"e 7enedict E@ and assumed the force of law
the following year$ Canon 101: referred to marriage as a contract. contractum matrimonialem/$
it also stated that a marriage between ba"tised "ersons must always be a sacrament$ canon 101D
stated that the "rimary end of marriage was the "rocreation and education of children$ it went on
to say that the secondary end was mutual hel" and the remedy for concu"iscence$ thus marriage
has the "rimary "ur"ose of generating and educating children$ Its secondary "ur"ose is that it
enables the s"ouses to hel" each other as well as "ro!iding them with a legitimate conte't in
which they can engage in se'ual acti!ity$ canon 101D$1 is in stac, contrast with St Augustine&s
understanding that marriage is for the intimate friendshi" between a man and woman a
friendshi" in which lo!e and charity are shared, a friendshi" which e'ists from the moment they
marry and is not de"endent u"on their ha!ing children$ the canon does not allow for the french
tradition of the 1:th century and its em"hasis on lo!e within marriage$ canon 101D$: e'"lains
that the essential "ro"erties of marriage are unity and indissolubility$ it also notes that in christian
marriages these "ro"erties ac<uire a "articular firmness because such marriages are sacraments$
when canon 101D says that a marriage en%oys unity, it means that the s"ouses& relationshi" is
e'clusi!e and does not allow a third "arty to share in its intimacy$ moreo!er this e'clusi!ity is
"er"etual by !irtue of the marriage being indissoluble$ 3hat is , a"art from the death of the
s"ouse a marriage cannot be dissol!ed to enable the s"ouses to enter new marriages$ 3he same
canon calls a marriage between two unba"tised "ersons legitimate$ behind this definition is the
im"ortant ac,nowledgement that the marriage of two unba"tised "ersons can be !alid$2urther the
canon calls a !alid marriage between two ba"tised "ersons ratified if it has not yet been
com"leted by consummation$ once consummated howe!er the marriage is said to be ratified and
consummated. ratum et consummatum$/$ the way in which this distinction is worded suggests
that an unconsummated Christian marriage is incom"lete$ in fact the first "aragra"h of the same
canon describes se'ual intercourse as the con%ugal act to which the matrimonial contract is
ordered by nature and by which s"ouses become one flesh$ matrimonial consent is defined in
this code as the act of the will by which each "arty gi!es and acce"ts a "er"etual and e'clusi!e
right o!er the body, ordered toward acts which are of themsel!es a"t for the generation of
children$ to gi!e consent one re<uires sufficient ,nowledge so that the indi!idual ,nows what he
or she is consenting. sufficient ,nowledge of each other/and sufficient freedom to gi!e genuine
consent$ canon 10(: allows conditions to be added to matrimonial consent
3he introductory canons we ha!e cited "ro!ide a "icture of how marriage is understood in the
1(11 code$ it is a contract between a man and a woman with the "rimary "ur"ose of ha!ing
children and educating them$ indeed marriage is ordered to the con%ugal act$ it is through this
se'ual act that the s"ouses become one flesh$ consummation com"letes the marriage$ marriage
also "ro!ides an o""ortunity for the s"ouses to hel" one another and offers a remedy for
concu"iscence$$ it is both indissoluble and e'clusi!e of third "arties$ these "ro"erties are more
"ronounced in the marriages of christians because their marriages are sacraments$ 3he 1(11 code
maintains the "rinci"le that consent ma,es marriage$ there is also an o!er em"hasis on the se'ual
dimension of marriage at the e'"ense of lo!e$ In fact se'ual intercourse is so central to marriage
that the marital contract is by nature ordered toward it$ Although the marriage begins with
consent it is not com"ete until there has been se'ual intercourse$ between the ba"tised this
intercourse ma,es "resent the bond between christ and his church$ 3hus a consummated
marriage is absolutely indissoluble$
3he second @atican Council and Marriage$
3he re!ision of the 1(11 code came with the Second @atican Council$ Bf all the Council
document on marriage -audium et S"es offers the fullest treatment$ -S begins by stating that the
well being of each "erson and society de"ends u"on the well being of married life$ it is for this
reason that married cou"les need so much su""ort$ but marriage is undermined in the modern
world by di!orce, "olygamy and a casual attitude towards se'$ -audium et s"ies outlined
"roblems facing married cou"les as selfishness, hedonism and unlawful contrace"tion$ -S "ut
lo!e lo!e at the !ery centre of marriage$ Article 41 states that marriage is a community of lo!e,
while 48 e'"lains that marriage is di!inely instituted and so the lo!e between s"ouses is a share
in Christ&s lo!e for his church$ sMoreo!er it s"ea,s of the intimate sharing of marital life and
lo!e$ 3his was in ,ee"ing with St Augustine&s understanding of the fundamental nature of marital
lo!e$ An indi!idual marriage is rooted in the co!enant of the cou"le$ Article 4( de!elo"s the
conciliar document&s teaching on lo!e$ it says that se'ual intercourse allows such lo!e to be
e'"resses "hysically$ As intercourse must be o"en to children$ then it can be said that marital
lo!e is ordered toward children$ 3he article also states that this lo!e must embrace the whole
"erson+ body and mind$ 2urthermore it must embrace the "erson at all times both good and bad$
3hus it is always "resent in an e'clusi!e way$ Conse<uently marital lo!e e'cludes di!orce and
adultery$ Article 4( seems to actually teach that marital lo!e is more fundamental than the D
goods of Augustine$ 5ach of these goods de"end on marital lo!e, that is this lo!e gi!es rise to
intercourse and so "romotes the good of children and also it is e'clusi!e and so u"holds the good
of unity and fidelity$ finally it is "er"etual and so "reser!es the good of indissolubility$ the
fundamental nature of marital lo!e is also taught by article 90$ it states that this lo!e is so central
to marriage that e!en if a cou"le is unable to ha!e children their marriage retains its character,
!alue and indissolubility$ once again, the council is in accordance with St Augustine who says
that a lo!ing "artnershi" is so central to marriage that it is not de"endent u"on the cou"le ha!ing
children$ 0e goes on to say that this bond of lo!e remains e!en when they grow beyond the age
for ha!ing children$
the marriage co!enant is brought into e'istence by the cou"le&s irre!ocable consent by which
they surrender themsel!es to each other for their own good as well as for the good of any future
children and society$ the use of the word co!enant was meant to mo!e the understanding of
marriage beyond that of the 1(11 of contact which underlined the rights and duties of the man
and woman in the marriage$ the term co!enant was meant to highlight the relationshi" between
what the cou"le are doing and -od&s lo!e for his "eo"le$ the co!enant between -od and his
"eo"le is characterised by an enduring and unconditional lo!e of -od for his "eo"le$ 3his di!ine
element means that -od is always in the marriage to assist the cou"le in the daily realities of
married life$ Article 48 highlights the sacramentality of the marriage bond$ thus christ is "resent
to these cou"les, strengthening their marriage and blessing them$ article 4( s"ea,s among other
things of acts of se'ual intercourse between husband and wife describing them as hour able and
worthy$ these acts bring about an intimate and chaste union $ they gi!e %oy and gratitude as well
as e'"ress "hysically the mutual self gi!ing that is essential to marriage$ the commission writing
the document refused to include a statement saying that marital lo!e does not %ustify intercourse
when it is inde"endent of the intention to "roduce children$
30e 1(8D CBde of canon >aw
Nature of Marriage
Canons 1099 and 1096 both consider the !ery nature of marriage$ Canon 1099 is based u"on
101:)1 and 101D$1 of the 1(11 code $ Canon 101:$1 s"ea,s of christ ha!ing raised marriages of
ba"tised s"ouses to the le!el of a sacrament$ canon 101D$1 s"ea,s of the "rimary and secondary
ends of marriage$ Canon 1099 is also based u"on >umen -entium 11 and 41, A"ostolicam
actuositatem 11 and -S 48$ Article 48 of -S describes marriage as the intimate sharing of
marital life and lo!e$
the writing of the 1(8D code went through many drafts$ 3he 1(66 draft of what e!entually
became canon 1099$1 stated that marriage is an intimate union of the whole life between a man
and a woman which of its !ery nature is ordered to the "rocreation and education of children$
0owe!er unli,e -S 48, the draft omits any reference to marital lo!e$ 3hose drafting where faced
with the "roblem that lo!e is traditionally not a canonical term# it is internal to "eo"le and so
difficult to measure$ 7ut so is marital consent, to which, it will be seen, the marriage canons do
refer$ the first "rinci"le of re!ision was that the code has to be %uridical in nature$ >o!e was not
regarded as a %uridical conce"t, so it was omitted$ 0ence the draft canon&s descri"tion of marriage
only s"ea,s of the intimate sharing of life and not life and lo!e$s
-S 90 describes marriage as a whole manner and communion of life$ while the canon calls it
an intimate union of the whole of life$ there are two "articular similarities$ first the
communion or union of the man and woman is said to be of life$ it is a sharing of their daily
li!es$ second, this communion in!ol!es the whole of life that is, it in!ol!es e!ery as"ect of daily
life at e!ery le!el$ this union is not limited either in sco"e or in de"th$
3he 1(66 draft ma,es reference to "rocreation and education of children showing that !ery early
on in the "rocess of re!ision these dimensions of marriage were regarded as so im"ortant that
they had to be included in the descri"tion of marriage$ 3hus in accordance with conciliar
documents afore+mentioned, the canon needed to stress that marriage is the conte't in which
children are born$ without these children, neither society nor the church on earth will ha!e a
future$ Moreo!er the education of these children is !ital if they are to be good members of
society and the church$ In "articlear unless they are educated in the faith, they will be ignorant of
the means of sal!ation, as well as their role in the churchmission$
3hus, the 1(66 draft indicates that the "rocreation and education of children is im"ortant with
regard to marriage$ the draft does show howe!er, that there is no intention of re"eating the
contro!ersial teaching of canon 101D$1 of the 1(11 code which stated that the "rocreation and
education children is the "rimary end of marriage$ 3he draft is faithful to -S 90 which states
that the em"hasis on the "rocreation and education of children is made while not underestimating
the other ends of marriage$ Although it is accurate to say that the final !ersion of Canon 1099$1
of the 1(8D code uses canon 101D$ 1 of the 1(11 code, as a source it is more accurate to say that
it re"laces it$
In 1(11, the draft for canon 1099$1 was re!ised$ it states marriage co!enant by which a man
and a woman establish between themsel!es an intimate communion of their whole life and which
of its own nature is ordered to the good of the s"ouses and to the "rocreation and education of
children, has between the ba"tised been raised by christ the >ord to the dignity of a sacrament$
this draft is closer to the council&s understanding of marriage than the one in 1(66$ it incor"orates
the term co!enant from article 48 of -S$ It also uses the worm communion from -S 90 as
o""osed to the term union$
3he draft introduces the conce"t of the good of the s"ouses. bonus coniugum/ as one of the ends
of marriage$ 3his e'"ression could also be inter"reted to mean &the well being& of the s"ouses$ Its
insertion is connected with what canon 101D$1 of the 1(11 code called the secondary end of
marriage$ 3his canon desrcibed the secondary "ur"ose of marriage as mutual hel" and a remedy
for concu"iscence$ these elements are absorbed into the more general e'"ression &the good of the
s"ouses&$ 3his new term is also o"en to certain conciliar teaching of >umen -entium 11 for
e'am"le which says that cou"les are to hel" each other attain holiness$ Also -S 48 states that
marriage is to hel" in the "ersonal and s"iritual de!elo"ment of the members of the family$ 3he
e'"ression 7onum Coniugum is sufficiently broad and e!en !ague enough to include many
as"ects of marriage that ha!e not found their way directly into the canons$ for e'am"le, marital
lo!e could fall under this new heading$ Certainly the e'"ression 7onum coniugum seems to be
the closest the com"liers of the new code comes to s"ea,ing of lo!e$ 3hey were aware that the
breadth in meaning of this term would allow ecclesiastical %udges to de!elo" its inter"retation$
In the 1(11 code, canon 101:$1 ga!e the traditional teaching that the marriage of ba"tised
s"ouses is a sacrament$ the 1(11 draft concludes by reacting this$ In doing so the draft is faithful
to -S 48 as well as Casti Connubii and 0Fmanae @itae$ 3he final !ersion of canon 1099$1 as
"romulgated reads 3he marriage co!enant by which a man and a woman establish between
themsel!es a "artnershi" of their whole life, and which of its own nature is ordered to the good
of the s"ouses and to the generation and education of children, has, between the ba"tised been
raised by christ the >ord to the dignity of a sacrament$ the ma%or difference between this final
!ersion and the 1(11 draft is that marriage is no longer described as a communion of the whole
life of the man and woman but as a "artnershi" or sharing. consortium/ of their whole life$ the
main reason for changing is that the word communion is used elsewhere in the code with other
meanings$ 3hey decided to use another word in order to a!oid ambiguity and confusion$ for e$g$
canon (1: s"ea,s of 0oly Communion meaning the 5ucharistic s"ecies and canon DDD$: tal,s of
full communion in the sense of ecclesiastical unity$
the first "aragra"h of 1099 li,e 101: of the 1(11 code says that marriage of the ba"tised is a
sacrament$ the second "aragra"h follows this by stating conse<uently a !alid marriage contract
cannot e'ist between ba"tised "erson without its being by that !ery fact a sacrament$ Canon
1099$: re"ays 101:$: !erbatim$ 3he "re!ious "aragra"h !ery carefully introduced the canons on
marriage by em"loying the much richer term co!enant, in accordance with -S$ 3hose who
drafted the code e'"lained that the use of co!enant was not intended to re"lace contract but to
su""lement it and enrich it because both terms a""ly to marriage$ 3he term contract has legal
connotation suitable for canon law$ for e'am"le it will be seen that canon 1101$: says that a
"arty contracts marriage in!alidly if by a "ositi!e act of the will he or she e'cludes marriage
itself or something essential to it when gi!ing consent$ this is an a""lication of the legal "rinci"le
that a contract is in!alid if a "arty deliberately e'cludes something that is re<uired$
the third "oint to be made about canon 1099$ : is that it reaffirms the teaching that any marriage
between ba"tised s"ouses is by its !ery nature, a sacrament, irres"ecti!e of their own "ersonal
faith$ If the man and woman are the actual ministers of the marriage, bringing it about through
their mutual consent, then to what e'tent is their le!el of faith im"ortantA this <uestion is more
"ertinent in cases where the the cou"le where ba"tised as babies but then had no christian
u"bringing or education$ is it still reasonable to say that their marriage is a sacrament e!en if
they do not understand what a sacrament isA 3he commission res"onsible for the re!ision of this
canon said that the matter was a doctrinal one and not a canonical one$ thus, unless the official
doctrine were to change, the canon would ha!e to retain its traditional meaning$
Canon 1096
3he essential "ro"erties of marriage are unity and indissolubility$ in christian marriage they
ac<uire a distincti!e firmness by reason of the sacraments$ 3he wording is !irtually the same as
canon 101D$: of the 1(11 code$ other sources for this canon are -S 48 and 0umane @itae :9$
3his canon ma,es it clear that indissolubility as a "ro"erty of marriage is as im"ortant as unity$
the terms unity and indissolubility are to be inter"reted as they are in the 1(11 code$ 3hus unity
means that the marriage in!ol!es an e'clusi!e bond between the husband and wife which
e'cludes any third "erson$ Indissolubility means that the marriage is "er"etual so that the born
cannot be bro,en, e'ce"t by the death of one of the s"ouses$ the fact that these "ro"erties are
essential means that they are intrinsic to marriage and not o"tional e'tras$ the cain concludes by
stating that these two "ro"erties are strengthened in the marriages of christians because such
marriages are sacraments$ that is, Christian s"ouses will be hel"ed by -od to li!e u" to the
e'clusi!e and "er"etual nature of marriage$
Canon 1091
Canons 1099 and 1096 describe the !ery nature of marriage$ 7ut what brings a marriage into
e'istenceA 30is is e'"lained by canon 1091$ the first "art reaffirms the im"ortant "rinci"le that it
is consent of the cou"le that brings a marriage into e'istence$ 1091 re"eats 1081$1 0f 1(11
!erbatim$ it states a marriage is brought into being by the lawfully manifested consent of
"ersons who are legally ca"able$ this consent cannot be su""lied by any human "ower$ the
teaching of this canon is "art of the long tradition of the church from St Ambrose, St Isidore and
*ohn Chrystostom$ 3he role of the cou"le&s consent is so essential that no third "arty can su""ly it
for them$ the canon also states that those entering the marriage must be legally ca"able and that
their consent must be lawfully manifested$ the former e'"ression means that they must be free
from any im"ediment to marriage$ the latter means that the consent must be e'changed in
accordance with the form "rescribed by the church$ the second "aragra"h of 1091 describes
matrimonial consent$ its source humane !itae 8 states that marital lo!e is a gift from -od$ who
himself is lo!e$ In marriage s"ouses gi!e themsel!es to each other in an e'clusi!e manner$ In
doing so they com"liment each other and collaborate with -od in the generation and education
of new life$ matrimonial consent is an act of the will by which a man and a woman by an
irre!ocable co!enant mutually gi!e and acce"t one another for the "ur"ose of establishing a
marriage$ the canon gi!es the broadest definition of consent unli,e its "redecessor canon 1081$:
of 1(11$ it sim"ly states that marital consent in!ol!es the mutual gi!ing and acce"ting of the
s"ouses for the "ur"ose of creating a marriage$ unli,e the 1(11 code&s 1081$: this canon does
not limit consent to %ust the se'ual side of marriage$ the 1(11 says matrimonial consent is an
act of the will by which each "arty gi!es and acce"ts a "er"etual and e'clusi!e right o!er the
body, ordered toward acts which are of themsel!es a"t for the generation of children$
the 1(8D&s broader definition of consent as seen in 1091 "ermits an a""reciation of marriage that
is wider and dee"er than %ust a consideration of the se'ual$ the new definition a""lies also to
older cou"les who are beyond child bearing who ha!e married for com"anionshi"$ the broader
definition s"ea,s of marriage as an irre!ocable co!enant$ this means that marriage is continuous$
the use of the word co!enant means that marriage in!ol!es the %oining of two li!es in their
entirety$ thus marriage in!ol!es the ongoing sharing of of e!ery as"ect of life$
Canon 1061
while canon 1061 introduces the role of consent in creating a marriage canon 1061 introduces
the conce"t of consummation$ its first "aragra"h "ro!ides a fundamental distinction between a
non+consummated marriage and a consummated one$ canon 1061$1 concerns a !alid marriage
between two ba"tised "ersons$ from canon 1099 this marriage is considered to be a sacrament$
canon 1061 describes the marriage as ratified. datum/ if it has not been consummated$ if on the
other hand it has been consummated then it is ratified and consummated. ratum et
consummatum/$ canon 1061$1 in full reads, a !alid marriage between ba"tised "erson is said to
be merely ratified, if it is not consummated# ratified and consummated if the s"ouses ha!e in a
human manner engaged together in a con%ugal act in itself a"t for the generation of offs"ring# to
this act marriage is by its nature ordered and by it the s"ouses become one flesh$ Canon 1061
still em"hasises the se'ual dimension of marriage to the detriment of all the other dimensions$ as
was already mentioned Saint augustine said that marriage is good "rimarily because of the
fellowshi" between the s"ouses$ it is within this fellowshi" that lo!e and charity are e'changed$
It has already been seen that I!o of Chartres, 0ugo of Saint @ictor and ;eter >ombabrd wrote of
the centrality of lo!e within marriage$ thus it would be true to say that marriage without lo!e is
incom"lete, but this cannot be said of a marriage that has not been consummated$ there are many
cou"les who ha!e not consummated their marriage "erha"s because of age but who are fulfilled
because their li!es are s"ent e'"ressing their mutual lo!e in other ways$ Indeed -S s"ea,s of
marriage as the intimate sharing of marital life and lo!e and as a whole manner and communion
of life$ thus the se'ual dimension is only one dimension among many in which lo!e can be
e'"ressed$ unfortunately canon 1061$1 still em"hasises the se'ual dimension to the detriment of
all the others$ its final "art is !irtually the same as that of its "redecessor in the 1(11 code$ with
regard to the act of se'ual intercourse, canon 1061$1 states that to this act marriage is by its
nature ordered and by it the s"ouses become one flesh$ while this is true the canon fails to ta,e
into account the broader conte't of marriage that is the mutual self+gi!ing which must ta,e "lace
on a daily basis$ further canon 1061 gi!es conditions which ha!e to be met in order for an act of
se'ual intercourse to be regarded as an act by which the marriage is consummated$$ there are two
conditions$ first the act must be conducted in a human manner. human modo/$ second it must be
a"t for the generation of offs"ring . "er se a"tum ad "roli' generationem/$ with regard to human
manner, this comes from -S 4( which s"ea,s of &the truly human "erformance of these acts&$
. modo !eer human e'erciti/$ if an act is human, then it "ertains to the whole including the will$
hence if an indi!idual is forced to act against his will, then it can be said that his action is not
"erformed in a truly human fashion$ canon 1:9$1 in the boo, on general norms satiates an act
"erformed as a result of force im"osed from outside on a "erson who was <uite unable to resist it
is regarded as not ha!ing ta,en "lace$ this general "rinci"le can be a""lied to marriage$ An act
of se'ual intercourse in which the wife is forced to "artici"ate against her will be her husband
cannot be said to be "erformed in a human manner$ thus such an act cannot be considered to
consummate marriage$ similarly a s"ouse who is hea!ily drugged cannot engage in se'ual
intercourse in a human manner because he or she does not ha!e the use of reason$ that is he or
she is unable to ma,e a true decision about ha!ing intercourse$ the editors of the canon agreed
that a"hrodisiacs are "ermissible to assist intercourse+ "ro!ided that neither s"ouse loses the use
of reason or becomes inca"able of refusing intercourse$ it was not decided whether an act of
intercourse in which the wife suffers gra!e "ain can be regarded as conducted in a truly human
manner$ it is thus a matter of debate whether such a marriage can be said to be consummated in
the canonical sense$ Indeed if se'ual intercourse is to be a truly "hysical e'"ression of the
lo!ing self+gi!ing that is so essential to marriage, then it must be acted out freely$ *ohn ;aul II
s"o,e of human bodies ha!ing a sacramental as"ect+ ma,ing !isible and "artici"ating in what is
in!ible$ that is s"ouses manifest christ&s lo!e for the church and also their marital unity$ they
e'"ress these through their bodies$ it is as if their bodies s"ea, for them, "roclaiming christ&s
lo!e and unity$ %ust as a "ro"het ma,es ,nown the truth about -od, then so their bodies re!eal
the truth about marriage$ it is for this reason that *ohn ;aul Il s"ea,s of the "ro"hetism of the
body$ S"ouses must beha!e in conformity with the truths of marriage# otherwise their bodies act
as false "ro"hets$ if one a""lies this to forced se'ual intercourse then one must conclude that the
forced act of union cannot truly re"resent the genuine total self+gi!ing that marriage in!ol!es$
;o"e *ohn ;aul II also s"o,e of the language of the body$ if this terminology is used then forced
se'ual intercourse is a lie i$e$ it cannot truthfully e'"ress the !oluntary self+gi!ing that is at the
centre of marriage$
the second condition for consummation gi!en by canon 1061 is that intercourse must be a"t for
the generation of offs"ring$ two "eo"le marry and during the course of their time together the
man insists on using a "ro"hylactic sheath. condom/$ indeed he ne!er engages in intercourse
without one$ the relationshi" ends in se"aration and ci!il di!orce$ as no act of intercourse has
been "erformed in a manner a"t for the generation of children it cowld be argued that the
marriage is not consummated canonically and so can be dissol!ed$ 1061$: if the s"ouses ha!e
li!ed together after the celebration of their marriage, consummation is "resumed until the
contrary is "ro!en$ thus if the s"ouse li!ed together after the wedding and dissolution on the
grounds of non+ consummation is being sought, then the onus is on "ro!ing the non+
consummation$ this could be through "hysical e'amination of the woman, or the inter!iew of
the s"ouses and "ossibly witnesses$ if the cou"le ne!er li!ed together after the wedding non
consummation could be argued on the basis of lac, of o""ortunity$
Canon 1061$D an in!alid marriage is said to be "utati!e if it has been celebrated in good faith
by at least one "arty it ceases to be such when both "arties become certain of its nullity$ a
"utati!e marriage is a marriage that is regarded as !alid but intact is in!alid$ the nullity could be
due to an undis"osed im"endiment$
Canon 1011$ .situations re<uiring "ermission of the local ordinary/
e'ce"t in case of necessity, no one is to assist at the following marriages without the "ermission
of the local ordinary$
1$ marriage of transients
B4 @agus is one who has no fi'ed abode .c100/ i$e$ no domicile or <uasi+domicile$ it c"uld be a
result of a mental character disorder ma,ing them inca"able of the stability re<uired in marriage$
others of this nature will re<uire thorough "re"areation
:$ a marriage which cannot be recognised in ci!il law$
where a church marriage will suffer ci!il im"ediment these ha!e to be seriously considered
hence the in!ol!ement of the bisho"$ In South Africa "eo"le of cloud where not allowed to marry
white "eo"le$ today foreigners ha!e to go through a screening "rocess before they are "ermitted$
D$ a marriage of a "erson who is bound by natural obligations toward another "arty or toward
children arising from a "rior union$
des"ite the nullification of a "rior union one may stlll ha!e natural obligations arising from it and
a subse<uent union may "ose serious difficulties to the fulfilment of these obligations$
4$ a marriage of a "erson who has notoriously re%ected the catholic faith$
this is one who "rofesses "ublicly that he or she is no longer a catholic and refuses obedience to
the church and its laws$ this differs from one who has sim"ly abandoned the faith without
"ositi!ely re%ecting it or those who are tem"orarily non "ractising$ the "resum"tion of the law is
that those who ha!e "ublicly re%ected the faith are hostile to it and therefore "ose a danger to the
belie!ing "arty and to the children born from such a union$
9$ a marriage of a "erson who is bound by a censure
;erson who are e'communicated or under interdict are forbidden to recei!e any of the
sacraments$ cf c 1DD1+1DD9$ "roblem here is two fold 1$ can "erson recei!e the sacrament of
marriage in a state of serious sin$ :$ the offence itself may well "ose a serious threat to a
successful marriage co!enant since the co!enant itself im"lies a sharing of faith and some degree
of "artici"ation in the life of the church$
6 a marriage of a minor child when the "arents are unaware of it or are reasonably o""osed to it$
a "erson who has not yet com"leted his or her 18th year is considered a minor cf (1$1$ if one is
such they must be refereed to the local ordinary$ a certain maturity of %udgement is need and this
at times is lac,ing in the those a younger age$ minors also lac, emotional stability and maturity
to handle the challenges of marriage
1$ a marriage to be entered by means of "ro'y cf 1109$
a "ro'y marriage is one which ta,es "lace without the "arties "resent to each other$ one or both
are re"resented by "ersons who who are duly mandated to e'change consent on behalf of the
"arties themsel!es$
1$: the local ordinary is not to grant "ermission for assisting at the marriage of a "erson who has
notoriously re%ected the catholic faith unless the norms of canon 11:9 ha!e been obser!ed
IM;5?IM5N3S IN -5N54A>
A. The meaning of a diriment impediment
An im"ediment is a hinderance or an obstacle which "re!ents something from being done$ the
code of 1(11 distinguished between merely im"edient im"ediments. obstacles or im"ediments
rendering an act merely illicit or unlawful, but not in!alid/ and diriment im"ediments. obstacles
or im"ediments rendering an act not merely illicit or unlawful, but also in!alid/$ A diriment
im"ediment from its root meaning is something that ,ee"s the cou"le di!ided or something that
sto"s the marriage from being created$ the im"edient im"ediment under the 1(11 code of mi'ed
religion no longer e'ists as such, the code now states sim"ly that there must be a "ermission for
the marriage to ta,e "lace and s"ecifies the conditions necessary for this .c 11:9/$ although this
is similar to an im"edient im"ediment, no dis"ensation is needed because there is no im"ediment
from which to dis"ense$ ;ermission is needed for >iceity .lawfulness or legitimacy/
All matrimonial im"ediments in the 1(8D Code are diriment im"ediments$A diriment
im"ediment renders a "erson inca"able of !alidly contracting marriage .c 101D/$ -i!en the basic
right to choose a state of life including marriage .c 1098/ an im"ediemtn has its source in a fact
or in a defect which, affecting the "erson of the future . "otential s"ouses/ renders them
%uridically inca"able of contracting a !alid marriage$
Declaration and establishment of impediments
Bnly the su"reme authority of the church can create or state what is a diriment or in!alidating
im"ediment .1019, 1011$:/# only laws stated to be in!alidating or inca"acitating laws are such
.c10/$ thus no indi!idual bisho" nor other ordinary is ca"able of establishing or declaring
diriment im"ediments to marriage .c101D, 1019, 1011$:/$ only the su"reme authority can
establish other im"ediments for the ba"tised. 1019$:/ as distinct from the declaration of
im"ediments also reser!ed to the su"reme authority .c 1019$1/ Canon law consists of di!ine law,
re!ealed and natural and merely ecclesiastical law$ since the church is bound by di!ine law, it
claims only to declare what that is, whereas ecclesiastical laws are human laws established by
their "ro,emulation by the legitimate authority for its "ro"er sub%ects.c 1/$ Normally merely
ecclesiastical laws bind only catholics . c11/ and in the 1(8D code catholics of the latin rite. c 1/$
305 ?I4IM5N3 IM;5?IM5N3S 3B MA44IA-5 IN -5N54A> distinguish im"ediments
declared by the su"reme authority. di!ine laws/ from those established by the su"reme authority
. ecclesiastical law/$ Im"ediments of di!ine law are declared .c$ 1019$1/$ Most of these a""ly to
all marriages# they state what is necessary for a marriage to be !alid and for a "erson to be
ca"able of marriage, irres"ecti!e of whether or not that "erson is catholic or e!en ba"tised,
whether the marriage is between two catholics, two ba"tised "ersons, one ba"tised and a non
ba"tised "erson or tow non ba"tised "ersons$ ecclesiastical laws normally a""ly to catholics and
here of the latin rite . c 1, c 11/$ 0owe!er the su"reme authority alone can establish other
im"ediments. of ecclesiastical law/ which a""ly to all ba"tised . 1019$:/$ not only those who
marry catholics but in some res"ects e!en the marriages of two ba"tised non catholic christians
with one another whether conducted in a non catholic church or e!en in a register office$ in fact
this will not become a "ractical issue unless one of these "ersons wishes to marry a catholic or
unless one or both of them becomes catholic$
the local ordinary can "rohibit a s"ecific marriage for a limited time for gra!e reasons and only
as long as the reason "ersists . c 1011$ 1/$ 3his does not allow him to establish an im"ediment
not e!en an im"edient im"ediment$ 4ather it is a "astoral de!ice allowing him to dealy a
marriage which seems to be !ery unwise or which might be in!alid, to ensure that matters are
clarified, that there is "ro"er "re"aration$ this ca"acity is limited to his own "ro"er sub%ects,
where!er they are or to those actually "resent in the territory for which he has "ro"er
res"onsibility$
Dispensation from impediments to Matrimony.
A dis"ensation is a rela'ation of a law in a gi!en or "articular case. c$89/ In such a case, the
"erson could marry !alidly$ 0owe!er not all im"ediments to marriage can be dis"ensed$
Im"ediments of di!ine law which only the su"reme authority can declare. declares them, but
does not establish them, since they are established by -od/ cannot be dis"ensed e!en by the
su"reme authority$ those of ecclesiastical law can be dis"ensed, but only if certain conditions are
met and they can only be dis"ensed by certain "ersons$ thus if the conditions re<uired for
dis"ensing are not met or if someone other than a "erson ca"able of dis"ensing attem"ts to
dis"ense or if the act of dis"ensation does not follow re<uirements for !alidity in other res"ects,
the dis"ensation itself will be in!alid and so the marriage conducted on the basis of it will be
in!alid .cc 88+(D/$
?is"ensations from im"ediments then concerns ecclesiastical law$ some im"ediments can be
dis"ensed only by the A"ostolic see . canon 1018$1/ namely those in sacred orders, a "ublic,
"er"etual !ow of chastity in a religious institute of "ontifical right and crime.cc 1018$:, 10(0/$
with these e'ce"tions and noting that dis"ensations form consanguinity in the direct line and u"
to the second degree of the collateral line are ne!er gi!en. 1018$D/$ the local ordinary is usually
the "erson who grants dis"enseations often through a "erson in the diocese designated by the
bisho" for that "er "ose and gi!en the necessary faculties# this could be the chancellor$ the @icar
-enral of the diocese can grant such dis"ensations, since he e'cises ordinary "ower !icariously
or on behalf of the diocesan bisho" by !irtue of his office though out the diocese$ An e"isco"al
!icar can grant such dis"ensations within the area of the diocese for which he has been gi!en
s"ecific res"onsibility by the diocesan bisho"$ the local ordinary only has such "ower of
dis"ensation within his own diocese or for his own "ro"er sub%ects. 1018$1/$ any such
dis"ensations must be for the s"iritual welfare of the faithful . c$88/ and only for a %ust and
reasonable cause . c (0$1/, with strict inter"retation as to circumstances, the law in <uestion
cc(0$1,(:/ and only as long as the moti!ating reason "ersists .c(D/$ 3his affects not only liceity
or lawfulness but !alidity when the legislator himself does not grant the dis"ensation .(0$1/,
although in doubt as to the sufficiency of the reason, the act of dis"ensation is lawful and !alid
.(0$:/$ thus dis"ensation for a catholic to marry a ba"tised non+catholic in a non catholic church
ceases immediately if the non catholic becomes a catholic in the meantime, "recisely because the
condition . non catholic/ has ceased$
In danger of death the local ordinary . c 101($1/ or e!en when he cannot be a""roached other
than by tele"hone . c 101($4/, a "arish "riest or a sacred minister already "ro"erly delegated for
the wedding . cc 101($:#8(/ can dis"ense from all im"ediments of ecclesiastical law, e'ce"t for
im"ediments stemming from sacred orders canon 101($1+:/ and a confessor can dis"ense from
the same im"ediments in the internal forum, if they are occult+ not ca"able of being ,nown
"ublicly . 101($D/$ the case of danger of death is not restricted to the literal fact of danger of
death, but includes serious surgery, being in the war =oneG
similarly "owers of dis"ensation, again e'ce"t from sacred orders and from a "er"etual !ow of
chastity in a religious institute of "ontifical right are "ossessed by the local ordinary and when he
cannot be a""roached by the "arish "riest and by a "ro"erly delegated sacred minister, if an
im"ediment is disco!ered at the last moment and the wedding cannot be deferred without the
li,elihood of gra!e harm. c 1080$1+:/$ these "owers in danger of death or when all is "re"ared do
not e'tend to a "erson delegated to assist at a wedding who is not a sacred minister. cc 101(+
1080/, since both canons e'"ressly limit the "ower to dis"ense e!en on these e'treme cases to
sacred ministers$ 3hus not e!en a lay "ersonn , "ro"erly delegated as the church&s official witness
in the unusual circumstances of c 111:, could e!er !alidly dis"ense from any im"ediment# only
bisho"s, "riests or deacons can e!er dis"ense and then only as s"ecified abo!e, with conditions
strictly inter"reted $ It is further to be noted that "owers of dis"ensation concern a "articular
wedding . c 1018$1, cc88+(D/$
where a dis"ensation from a diriment im"ediment to marriage is !alidly gi!en in such a situation
of emergency, the local ordinary is to be informed immediately, where it concerns a dis"ensation
in the e'ternal forum and the dis"ensation is to be recorded in the church marriage register. c
1081/$ where the im"ediment is occult. cannot be established in the e'ternal forumB and where
the dis"ensation is granted in the internal non+sacramental forum, it is normally to be recorded in
a s"ecial boo, in the secret achie!es of the diocesan curia. c 108:/, unless the a"ostolic
"enitentiary determines otherwise$ this is limited to the non sacramental internal forum, since the
sacramental internal forum is the sacrament of reconciliation and any such record would
ine!itably entail the !iolation of the seal of the confessional$ since a dis"ensation can be gi!en
e!en there, in the case of danger of death and then, ob!iously "recisely by the confessor . canon
101($D/ as c 108: clearly im"lies this is ne!er to be recorded$