-1-
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.
2.
3.
4.
5.
6.
7.
8.
Constitutive elements of marriage (c. 1055)
The properties of marriage (c. 1056)
The nature of matrimonial consent (c. 1057)
The subjective right to marriage (c. 1058)
Applicable legal norms (c. 1059)
The juridical status of a celebrated marriage (c. 1060)
Types of marriages (c. 1061)
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.
1
-2-
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.
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.
2
-3-
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.
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.
3
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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.
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.
4
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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.
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;
5
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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.
- 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.
6
-7-
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.
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.184187.
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...).
7
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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.
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.
---
8
-9-
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.
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
is not consummated; ratified and consummated, if the spouses have in a human manner
engaged together in a conjugal act in itself apt for the generation of offspring. To this act
marriage is by its nature ordered and by it the spouses become one flesh.
§2 If the spouses have lived together after the celebration of their marriage,
consummation is presumed until the contrary is proven.
§3 An invalid marriage is said to be putative if it has been celebrated in good faith
9
-10-
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.
by at least one party. It ceases to be such when both parties become certain of its nullity.
Can. 1062 §1 A promise of marriage, whether unilateral or bilateral, called an
engagement, is governed by the particular law which the Episcopal Conference has
enacted, after consideration of such customs and civil laws as may exist.
§2 No right of action to request the celebration of marriage arises from a promise
of marriage, but there does arise an action for such reparation of damages as may be due.
Canons 1055-1062 constitute the basis for the other canonical norms on
marriage. Because of their cultural, doctrinal, pastoral and juridical content, they were
the object of many revisions.
The Commission studied the nature of marriage on numerous occasions; the topic was
even the object of a special session of the Cardinals, May 24, 1977. At that session,
they were asked to decide on the following points:
- is it fitting to have a definition or description of marriage in the new Code? If so,
- would it be fitting to include in this definition the notion of the union of the spouses
(communio, consortium, coniunctio) to express the personal dimension of marriage? If
so,
- what juridical effects would such an element have on the validity of marriage?
The answers to these questions would orientate the work of the Commission in future
sessions. The response was affirmative for the first two questions. It seems that for the
third the Commission was to prepare a text that would not open the door too wide to
declarations of nullity.
10
-11-
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.
The text of canon 1055, §1
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.
The elements of the description of marriage can be laid out in linear
fashion:
-
The matrimonial covenant,
by which a man and a woman
establish between themselves
a partnership of their whole life,
is by its own very nature
ordered toward the well-being (good) of the spouses
and the procreation and education of children;
this covenant between baptized persons
has been raised by Christ the Lord
to the dignity of a sacrament.
The text incorporates the following aspects:
1.
The notion of covenant is included, to be faithful to the council, but without
stating what would be the faith required to make it a covenant "in the
Lord".
2.
When speaking of a "man" and a "woman", the Commmission did not wish
to enter into the debate regarding transsexuals (man - woman). Cf. C.J.
RITTY, "The Transsexual and Marriage", in Studia Canonica, 15(1981),
pp. 441-459).
3.
The word "partnership" (consortium), while being more juridical, is less
personal than "communion"; however, it avoids ambiguity with other forms
of communion found in the Code.
11
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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.
ii.
4.
The words "the good of the spouses" were inserted to cover the reality
underlying conjugal love; but the elements of this "good" were not spelled
out. The 1981 Relatio states that this good is truly an essential element of
marriage (p. 244). At the same time, though, it wished to avoid speaking
of a hierarchy of ends.
5.
The canon does not spell out in what "education" of children could consist.
As in the other cases, this was left to jurisprudence.
6.
The text does not state when Christ raised marriage to the dignity of a
sacrament. Today, most theologians would prefer to state that the
apostolic church, inspired by Christ and guided by the Spirit, had the
capacity to structure the sanctifying institutions of the community (cf. L.
ORSY, loc. cit., p. 394).
7.
The text speaks of marriages between baptized persons, not of marriages
between baptized Catholics, or of marriages between one baptized person
and a non-baptized one.
The text of canon 1055, §2
"Consequently, a valid marriage contract cannot exist between
baptized persons without its being by that very fact a sacrament" (c.
1055, §2).
This text, which has remained unchanged, has raised great debates among
theologians and canonists.
We must recall that the Constitution on the Liturgy, No. 59, states:
The purpose of the sacraments is to sanctify [persons],
to build up the body of Christ, and finally, to give
worship to God. Because they are signs they also instruct.
12
-13-
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.
They not only presuppose faith, but by words and objects
they also nourish, strengthen, and express it; that is why
they are called ‘sacraments of faith'.
There is a possibility of a contradiction between the conciliar teaching and the
norm of canon 1055, §2 which seems to speak of an "automatic" sacramentality
when marriage is celebrated between Christians -- it states (indirectly) that it is
impossible for a Christian to marry unless it is a sacrament; this would appear to
mean that a Christian could not get married unless it were a sacrament, thus
removing the natural right to marriage.
On the other hand, however, the International Theological Commission studied
the question attentively. Its response is quite nuanced (see Origins, 8(19781979), pp. 235-239, at p. 237).
"Just like the other sacraments, matrimony confers grace in the final analysis by
virtue of the action performed by Christ and not only through the faith of the one
receiving it. That, however, does not mean that grace is conferred in the
sacrament of matrimony outside of faith or in the absence of faith. It follows from
this -- according to classical principles -- that faith is presupposed as a "disposing
cause" for receiving the fruitful effect of the sacrament. The validity of marriage,
however, does not imply that this effect is necessarily fruitful.
"The existence today of `baptized non-believers' raises a new theological
problem and a grave pastoral dilemma especially when the lack of, or rather the
rejection of the faith, seems clear. The intention of carrying out what Christ and
the church desire is the minimum condition required before consent is considered
to be a ‘real human act' on the sacramental plane. The problem of the intention
and that of the personal faith of the contracting parties must not be confused, but
they must not be totally separated either.
"In the last analysis the real intention is born from and feeds on living faith.
Where there is no trace of faith (in the sense of `belief' - being disposed to
believe), and no desire for grace or salvation is found, then a real doubt arises as
to whether there is the above-mentioned general and truly sacramental intention
13
-14-
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.
and whether the contracted marriage is validly contracted or not. As was noted,
the personal faith of the contracting parties does not constitute the sacramentality
of matrimony, but the absence of personal faith compromises the validity of the
sacrament.
Personally, I believe that we can more readily accept the canon if we insist on the
word "quare" (consequently, for this reason). This follows par. 1 which spoke of
the covenant ("in the Lord"). Therefore, there could be no sacramental marriage
which was not celebrated "in the Lord".
However, the other problem of the baptized unbeliever still remains. See L. DE
NAUROIS, "Marriage of Baptized Persons Who Do Not Have the Faith", in
Marriage Studies, II, pp. 38-59. Also R.G. CUNNINGHAM, "Marriage and the
Nescient Catholic: Questions of Faith and Sacrament", in Studia Canonica,
15(1981), pp. 263-283.
2.
The properties of marriage (c. 1056)
"The essential properties of marriage are unity and indissolubility; in
Christian marriage they acquire a distinctive firmness by reason of
the sacrament" (c. 1056).
As seen above, this text has remained relatively unchanged since 1917 (c. 1013,§2).
The unity of marriage has traditionally been seen in terms of "marital fidelity",
while its indissolubility has been envisaged in terms of the permanence of the
union.
The canon makes no distinction in the first part between a Christian marriage and
a non-Christian one; thus, the two properties are to be predicated of any
marriage, even a "natural" one.
14
-15-
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.
Although the church has not made exceptions to the norm of unity while the other
spouse is alive (without overlooking the exceptional procedure to be followed in cases
of presumed death -- c. 1707), the norm on indissolubility has been interpreted to mean
that matrimony cannot be dissolved by an intrinsic cause, such as the mutual consent of
the parties themselves.
Furthermore, the Church teaches that the marriage bond cannot be dissolved by any
human authority outside the parties themselves, even by those holding the supreme
natural civil power or by those endowed with highest supernatural power simply as head
of a supernatural society; it can thus be said to be extrinsically indissoluble.
There are cases where the pope intervenes to dissolve marriages that have not been
consummated, or are not ratified. The reasons and procedures followed are the object
of another course.
For now we could note that, taken with canon 1055, canon 1056 provides us with
the four elements that will enter into matrimonial consent:
-
the "bonum prolis" (generation and education of children)
the "bonum conjugum" (conjugal love)
-
the "bonum fidei" (unity) (see C. BURKE, "The Content of the Bonum
Fidei", in The Jurist, 51(1991), pp. 138-154)
the "bonum sacramenti" (indissolubility).
-
This overview of canons 1055-1056 should be completed by referring to canon
776 of the Code of Canons of the Eastern Churches which provides a more
"theological" description of marriage, particularly in paragraph 2:
§1. The matrimonial covenant, established by the Creator and
ordered by His laws, by which a man and woman by an irrevocable
personal consent establish between themselves a partnership of the
whole of life, is by its nature ordered toward the good of the spouses
and the generation and education of the offspring.
15
-16-
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.
§2. From the institution of Christ a valid marriage between baptized
persons is by that very fact a sacrament, by which the spouses, in
the image of an indefectible union of Christ with the Church, are
united by God and, as it were, consecrated and strengthened by
sacramental grace.
§3. The essential properties of marriage are unity and indissolubility,
which in a marriage between baptized persons obtains a special
firmness in virtue of the sacrament.
3.
The nature of matrimonial consent (c. 1057)
"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" (c. 1057, §1).
This canon states in more precise juridical terms the axiom "consent makes
marriage".
This principle is of the highest importance when adjudicating marriage nullity
cases, because if it can be shown that there was no consent, or that the consent
was defective, then there is no marriage.
A marriage may be defective for three reasons:
-
the existence of an impediment,
the lack of prescribed form,
defect of the consent itself, which can be caused either by a lack of
capacity, a lack of knowledge, or a lack of will.
The words "lawfully manifested" apply to any regulations regarding the prescribed form.
Thus, according to canon 1117, certain persons are bound to the canonical form,
others are not.
16
-17-
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.
The canon mentions that consent must be given between persons who are
capable in law of doing so. Canon 1095 lists three categories of persons who are
incapable of contracting matrimony. Others who are incapable, at least at the time,
are those bound by an impediment (c. 1073), until a dispensation has been obtained.
The manifestation of consent may be an explicit act, or at times could be an implicit one
if the parties were not bound by the form.
ii.
Nature of consent
"Matrimonial consent is an act of the 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" (c. 1057, §2).
This is one of the rare canons where an explicit definition is given. The elements are
quite different from those found in c. 1081, §2 of the 1917 Code.
Since consent is an act of the will, it presupposes knowledge and capacity.
The definition incorporates a number of elements taken from conciliar writings or
recent jurisprudence:
-
between a man and a woman
an irrevocable covenant
mutually give and accept one another
to establish a marriage.
The canon as now worded takes into account the fact that many people now
marry after they have passed the age of giving birth to children. The wording is
more open.
Emphasis should be placed on the word "mutually", since consent cannot be
unilateral. Furthermore, it must be given by the spouses (no human power can supply
17
-18-
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.
this consent). Thus, the parents cannot consent on behalf of their children, nor can the
priest or civil authorities.
As worded, the object of consent would be "matrimony", as taught by Christ and the
Church.
4.
The subjective right to marriage (c. 1058)
"All can contract marriage who are not prohibited by law" (c. 1058).
Canon 1058 repeats textually c. 1035 of the 1917 Code.
The right to marry is a natural right, not to be denied unless a valid prohibition of
natural or ecclesiastical law can be proved.
One of the key questions regarding this canon is: how far can the church go in
imposing standards and making demands in the area of preparation for marriage
before it begins to infringe on the basic right to marry?
It is understood that both the Church and the State can establish legitimate
restrictions on the capacity to marry. However, such restrictions must be founded
in serious causes whereby the proposed marriage is shown to be in conflict with
Christian revelation or posing a threat to the common social good.
If a restriction has been imposed, then those imposing it should provide in some way for
the spiritual, emotional and psychological growth of the persons involved so that they
may eventually be capable of entering into marriage.
Canons 1063-1072 outline the procedures to be followed in determining whether or not
a person is capable of entering into marriage (pre-marriage instruction, publications,
etc.).
18
-19-
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.
5.
Applicable legal norms (c. 1059)
"The marriage of Catholics, even if only one party is a Catholic, is
governed not only by divine law but also by canon law, without
prejudice to the competence of civil authority in respect of the
merely civil effects of the marriage" (c. 1059).
The text of this canon is similar to that of canon 1016 (CIC 1917), with the obvious
exception that this norm now applies only to Catholics and not to all the baptized.
Among the civil effects of marriage over which the Church claims no jurisdiction
are such regulations imposed for the protection of the public order, health and
safety: for example, laws requiring a license, registration, etc.
Civil effects are the consequences of marriage in secular life. These are many and
varied, and are mostly inseparable from the substance of marriage: e.g., parental
authority, the rights of husband and wife to cohabit, etc.
Merely civil effects are those civil consequences of marriage which are separable from
its substance; for example, the right of the wife to keep her name or to assume her
husband's name, her right of succession, of dower, etc.
It is the common teaching of canonists that, as regards the non-baptized -- and possibly
even those who are baptized but not Catholics -- the state could lawfully: a) establish
impediments, even such as affect the validity of the marriage; b) prescribe other
conditions, even affecting the validity, such as requisite legal form for valid marriage.
19
-20-
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.
However, even if in other instances the Church claims the right to determine
impediments, etc., citizens of a country are also bound to observe the secular law
unless it is manifestly against the law of God, etc.
The primary application of the canon now lies in the following fact: a Catholic
who wishes to enter into marriage could not claim to be observing only the civil
law regulations and still have a valid marriage.
Since, according to canon 11, only those baptized in the Catholic Church or received
into it are bound by merely ecclesiastical laws, the various impediments established by
canon law (and not by divine law) would not apply to other baptized Christians.
6.
The juridical status of a celebrated marriage (c. 1060)
"Marriage enjoys the favour of law. Consequently, in doubt the
validity of a marriage must be upheld until the contrary is proven" (c.
1060).
DE NAUROIS, L., "Matrimonium gaudet favore iuris", in Revue de droit canonique,
19(1979), pp. 53-73.
Among the canons of the 1917 Code, canon 1014 (now 1060) was one of the most
controversial. Numerous petitions were addressed to the Holy See for a reversal
of the presumption contained in the canon, or for its simple disappearance.
A special session of the Cardinals on the Commission studied this question in
1977 and agreed to maintain the presumption since it favoured stability in society
and was based on the credibility of each person.
We must recognize that we are dealing with a presumption which would cede to
contrary proof. Indeed, the work of the marriage court consists primarily in two things
20
-21-
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.
on the juridical level: stating that the impediment of bond does not exist (if such is the
case) and reversing the general presumption of law in favour of a celebrated marriage.
Since the canon contains a presumption, and not an absolute legal statement,
juridical facts which are stated contrary to the presumption must be proved. It
follows that if a tribunal is unable to reach moral certitude regarding the nullity of
a marriage, it has to uphold the presumed validity of the one that was the object
of the study (cf. c. 1608, §4).
We are dealing here with two different presumptions of law (validity of baptism,
celebration of a wedding); if both are operative, it does not seem necessary to
prove both points. But, as to how the matter should be resolved, there is no
uniformity of thought at the present time.
7.
Types of marriages (c. 1061)
BUCKLEY, J.C., "When is Invalid not Invalid? What is a ‘Matrimonium invalidum'?", in
C.L.S. Newsletter, No. 60, March 1984, pp. 73-79.
WRENN, L., “When is an invalid marriage null?”, in Canon Law Society Newsletter,
1999, No. 119, pp. 6-20.
i.
Ratified and consummated marriage
"§1. A valid marriage between baptized persons is said to be merely
ratified, if it is consummated; ratified and consummated, if the
spouses have in a human manner engaged together in a conjugal act
in itself apt for the generation of offspring: to this act marriage is by
its nature ordered and by it the spouses become one flesh" (canon
1061, §1).
21
-22-
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.
The text of par. 1 closely resembles that of c. 1015, §1 of the 1917 Code. However,
there is one important difference: the words "humano modo" were added when
speaking of consummation.
These words were the object of a special discussion at the level of the Commission (cf.
Communicationes, 9(1977), p. 129). Many people wanted the proposed words removed
since it was felt that they would open the door to too many requests for dissolution of a
non-consummated marriage. However, the Commission decided to retain them to show
clearly that consummation had to be a human act and not just some biological function;
nevertheless, it recognized that the canonical doctrine on this point was clearly
established.
For a marriage to be ratum (ratified, sacramental), three conditions are necessary:
-
lack of impediments
observance of any prescribed form
adequate consent
No reference to faith is included in the understanding of ratum, although such would
now be required, it seems, for a sacramental marriage.
The canon speaks of a marriage between baptized persons, and not of the marriage of
a baptized person, because, as the Commission states, it is not certain that the
marriage of only one baptized person is a sacrament (cf. Communicationes, 9 (1977), p.
129).
For a marriage to be ratum et consummatum, we must add the notion of consummation
("humano modo").
According to the jurisprudence which existed until 1977,
consummation required on the part of the man: erection, penetration and ejaculation in
the wife's vagina of semen elaborated in the testicles. Since the decree of May 23,
1977 (AAS, 69 (1977), p. 426), it is no longer required that the semen be elaborated in
the testicles. In spite of this decree, there is still opposition within the Rota on this
matter (but this is the object of another course). For women, jurisprudence has been
22
-23-
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.
requiring a vagina capable of receiving the husband's penis and which is open on to the
uterus. However, there are other more recent opinions in relation to an artificial vagina,
but since non-consummation cases have to be sent to the Holy See, it seems that the
strict (or more traditional) approach is the one to be followed. The above descriptions
also assist in understanding the impediment of impotence.
ii.
Presumption of consummation
"§2. If the spouses have lived together after the celebration of their
marriage, consummation is presumed until the contrary is proven"
(c. 1061, §2).
It was proposed in the Commission to transfer this norm to Book VII on procedure, but it
was eventually decided to leave the matter where it is.
iii.
Putative marriage
"§3. An invalid marriage is said to be putative if it has been
celebrated in good faith by at least one party. It ceases to be such
when both parties become certain of its nullity" (c. 1061, §3).
In law, children born of a putative marriage are legitimate (c. 1137). Consequently,
if a marriage is declared null, and if at least one of the parties was in good faith,
the children are and remain legitimate.
Because of the presumption of canon 1060, the certainty of the nullity exists only when
the tribunal has given a declaration of nullity.
23
-24-
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.
Canon 1061, §3 is quite important from an emotional point of view when couples
come before the courts. The question of the legitimacy of the children is a very
sensitive one; the answer is simple in law, but does not seem to be so in fact: the
children are and remain legitimate even if the marriage is eventually declared null.
8.
Canonical engagements (c. 1062)
"§1. A promise of marriage, whether unilateral or bilateral, called an
engagement, is governed by the particular law which the Bishops'
Conference has enacted after consideration of such customs and civil
laws as may exist" (c. 1062, §1).
"§2. No right of action to request the celebration of marriage arises from a
promise of marriage, but there does arise an action for such reparation of
harm as may be due" (c. 1062, §2).
In Canada and the U.S.A., there is no custom of having canonical engagements.
Consequently, the canon is of little practical importance in these countries.
However, in other countries (such as the Philippines), it can be relevant. Because of
canon 1057, §1 ("No human power can supply consent"), a person can never be forced
to marry someone, even if a promise were made. However, a suit can be introduced to
recover damages, if any.
CONCLUSION
In this chapter we have studied a number of practical norms that are applied regularly in
matrimonial tribunals.
Canons 1055-1062 are, indeed, among the most important of the Code, practically
speaking, since they are used both when a marriage is being celebrated, and also when
the validity of the marriage in contested.
24
-25-
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.
However, since it is consent that makes marriage, we must now turn to the canons on
consent to study their application in particular cases.
The Form of Marriage
Can. 1108 §1 Only those marriages are valid which are contracted in the presence of the
local Ordinary or parish priest or of the priest or deacon delegated by either of them, who,
in the presence of two witnesses, assists, in accordance however with the rules set out in
the following canons, and without prejudice to the exceptions mentioned in cann. 144,
1112 §1, 1116 and 1127 §§2-3.
§2 Only that person who, being present, asks the contracting parties to manifest
their consent and in the name of the Church receives it, is understood to assist at a
marriage.
THE CANONICAL FORM (notes on the Form of Marriage taken from Prof. J Huels)
There was no standard form for the celebration of marriage in the Church for most
of its history. Jewish and patristic traditions emphasized the betrothal (engagement) as the first
step leading to marriage by consent. In the law of ancient Rome, no form was prescribed for the
contracting of marriage; only the mutual consent of the parties was required. In some periods of
Roman history, there appears to have been a kind of form recognized as creating marriage when
the husband took his wife across the threshold of his house. The man’s giving a ring to the
woman was also a custom dating to Roman times. Another custom was the velatio, the placing of
a veil over the head of the bride. Christians introduced a blessing of the couple and/or a blessing
of the marriage bed.
The Germanic customs are largely unknown but were different from the Roman law.
Among the Germanic tribes, marriage was concluded gradually in two or more stages: a transfer
of money, a promise to marry, cohabitation, and consummation. The first act of marriage was the
Verlohbung, the man’s giving over of gifts to the woman; this indicated the consent, but they did
not begin living together until later. The next step was the Trauung which, among other rites,
25
-26-
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.
included a banquet hosted by the wife’s family followed by the handing over of the woman to
the man. There followed the Beilager, the bedding, done in the presence of witnesses which
created the Eheband, the marriage bond. In Roman law, consent made the marriage; among
the Germanic people, marriage was not concluded until consummation; hence the
importance of the Beilager.
Because of the different traditions, there was little precision in terminology regarding the
exact moment when marriage was contracted. Certain customs and ceremonies arose, but these
were not imposed in the law. The bishops of Rome avoided making uniform legislation on this
matter, and the Roman law requiring only consent took hold in Christianity, though differences
of opinions among Christian theologians existed into the twelfth century. In the late twelfth
century, Pope Alexander III ruled that consent made the marriage, but it was dissoluble
until it had been consummated. This was a blending of the Roman and Germanic traditions, a
compromise between the two dominant cultures of western Christianity at the time.
Over the centuries, the Church exhorted couples to marry before witnesses and to
seek the blessing of the priest. In 1215, the Fourth Lateran Council urged that marriages
be celebrated publicly, in response to the problem of secret marriages of people who
consented to marry against their parents’ wishes and without any kind of public ceremony.
This created family and social instability because such marriages were valid and
indissoluble; consent made the marriage, nothing more. Despite the Church’s admonition,
young people continued to run away and consent to marry each other validly without
family, Church, or societal approval. Another problem was that, since a clandestine
marriage could not be proved, denying that he had given consent was easy for one party.
Therefore, he could abandon the woman and marry someone else publicly.
At the Council of Trent (1545-1563), the major problem regarding marriage
remained that of clandestine marriages. Many fathers at Trent did not believe the Church
had the power to impose a form for validity, because consent alone was the requirement of
the natural law that the Church had always respected. However, the social pressures for a
binding form were so great that Trent finally decreed the first canonical form of marriage,
necessary for validity. It passed with considerable opposition: 135 in favour, 56 opposed, 9
not voting or wanting to leave it to the pope to decide. Trent also decreed that the pastor must
publish banns of marriage on three successive feast days (Sundays/holy days) before the
marriage, so that anyone knowing of an impediment could denounce the marriage.
26
-27-
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.
In its 1563 reform decree, Tametsi (session 24), Trent established the first canonical
form, requiring for the validity of marriage the presence of the pastor or other priest
delegated by the pastor or the local ordinary and at least two witnesses.
The decree of Pius X, Ne temere of 1908 specified that the priest had to assist
actively by asking for and receiving the consent of the parties. This decree also made
provision for the extraordinary form of marriage. This decree contains the law of the canonical
form substantially as it appears in the 1983 Code.
Vatican II introduced a major change affecting the canonical form in calling for the
possibility of deacons to be given the faculty to assist at marriage (Lumen gentium, 29).
Pope Paul VI implemented this in 1967 (motu proprio, Sacrum diaconatus ordinem). Also
important was a change in the law affecting the validity of marriage of a Catholic before an
Eastern non-Catholic priest.
Another important legal development was the possibility of a dispensation from the
canonical form for a mixed marriage. A 1966 instruction of the Congregation for the Doctrine
of the Faith stated: “The canonical form prescribed in c. 1094 [1917 CIC] must be observed in
mixed marriages. This is necessary for validity. If difficulties should arise, the ordinary should
refer the matter to the Holy See, outlining all the circumstances” (no. III). Paul VI’s 1970 motu
proprio Matrimonia mixta, after repeating the necessity of the canonical form, continued: “If
serious difficulties stand in the way of observing the canonical form, local ordinaries have the
right to dispense from the canonical form in mixed marriages; but the bishops’ conference is to
determine norms according to which the said dispensation may be granted licitly and uniformly
within the region or territory of the conference, with the provision that there should always be
some public form of ceremony” (no. 9). The Pontifical Commission for the Interpretation of
Vatican II declared in 1979 that the diocesan bishop, in granting a dispensation from the
canonical form of marriage in a mixed marriage, may limit it by clauses affecting validity.
An authentic interpretation of the Code Commission in 1985 declared that the
dispensation from canonical form in the case of two Catholics marrying is reserved to the
Apostolic See. There is one exception. In 1972, an authentic interpretation determined that, if
serious difficulties prevent the observance of the canonical form, the local ordinary may dispense
from it “if one party is Catholic but the other party was baptized in the Catholic Church but later
defected from the faith and was converted to another confession which is non-Catholic,”(CLD,
VII, p. 750).
27
-28-
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.
By a 1974 instruction of the Congregation for the Discipline of the Sacraments, Pope
Paul VI authorized the competent Roman congregations “to permit local ordinaries, who
have obtained a favourable vote of their episcopal conference and who have presented a
request, to accord to a Catholic who has been personally selected the function of official
witness at marriage” (CLD, VIII, pp. 815-818). In our case this would apply to Pastoral
Associates. This instruction was put into the new Code under C. 1112.
CANON 1108
§1. Ordinarily, a Catholic is bound, for validity, to consent to his or her marriage in
the presence of the officiant who has the faculty to assist at the marriage and two witnesses.
Exceptions to the canonical form exist in the law as specified in paragraph one of the
canon: (1) common error of fact or of law and positive and probable doubt of fact or of
law; (2) marriage before a lay officiant; (3) the extraordinary form of marriage; and (4) a
dispensation from canonical form in a mixed marriage.
The Faculty to Assist, Witnesses
Canon law speaks of the priest or deacon “who assists” at the marriage. The act of
assisting at marriage by the priest, deacon, or lay minister who has the faculty is not an act of the
power of governance. Nevertheless, the same rules for delegation, subdelegation, common error,
etc. in reference to executive power of governance are also applicable to the faculty to assist at
marriage. The priest or deacon who has the faculty is not called the minister of the sacrament,
since the ministers of the sacrament are the husband and wife. The priest or deacon is called the
“qualified,” “authorized,” or “official” witness. This official witness is, however, the minister of
the liturgical rite of marriage, which is a sacramental.
Besides the official witness, there must be, for validity, at least two witnesses with the
use of reason and sufficient discretion to know, understand, and be capable of testifying about
what they are witnessing. Although the normal seven-year-old is capable of validly being a
witness, the custom of the Church is that witnesses should be older, at least adolescents. The
witnesses may be Catholic or non-Catholic. The presence of the witnesses must be simultaneous
(both at the same time), physical, and moral (with consciousness of what is happening). The
purpose of the witnesses is to provide proof that the marriage took place. If only the priest or
deacon were present, he could forget the marriage in later years, or the parties could deny it
against his affirmation and there would be no convincing proof. This would not happen if there
28
-29-
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.
are two witnesses to the marriage whose names are noted in the marriage register. Should there
be any doubts, they could be contacted to testify.
The use of reason required for witnessing means not only the habitual use of reason but
the actual use of reason at the time of the marriage. Someone so drunk that he does not know
what is happening cannot be a witness. The witness must be capable of hearing the consent of the
parties or seeing the consent expressed non-verbally. A deaf person could be a witness only if he
or she were capable of lip reading or if other visual indications of consent were given, such as a
nod of the head. Similarly, a witness must know the language being spoken, unless there is an
interpreter. Any two witnesses suffice; they do not have to be specially chosen and in the bridal
party.
§2. The one assisting at marriage is the person who has the faculty to assist, is
present, asks for the contractants’ manifestation of consent, and receives it in the name of
the Church.
There must be the active presence of the official witness of marriage.1 The way this is done is
prescribed in the marriage ritual for liceity,2 but some form of asking for and receiving the
The Congregation for the Doctrine of the Faith stated: “... for the valid form of a wedding celebration
it is required that the ordinary or the pastor or their delegate should have an active role, that is, that he
truly receive the consent of the spouses and, indeed, of each of the contracting parties; and that,
otherwise, the wedding celebration must be considered invalid.” Reply, 28 November 1975, in CLD, VIII,
pp. 820-821.
1
Asking for consent: “Since it is your intention to enter into marriage, join your right hands and
declare your consent before God and in the presence of the Church.”
2
There is a choice of two formulas for the reception of consent.
A. “May the Lord graciously strengthen the consent you have
declared before the Church and fill you both with blessings from
above. What God has joined together, let no one put asunder.”
B. “May the God of Abraham, the God of Isaac, and the God of
Jacob, the God who fashioned our first parents in paradise and
united them as husband and wife, bless and strengthen in Christ
the covenant you have made in the presence of the Church, that
what God has joined together, no one may ever divide.”
29
-30-
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.
consent is necessary for validity. It must be expressed (by words, sign language, writing, gesture
or posture). Although not an act of governance, the assistance of the priest or deacon at marriage
is a juridic act, and the general norms on juridic acts are applicable to it (cc. 124-126). The priest
or deacon must intend to assist.3 He must at least implicitly ask for and receive the consent of the
parties. Minimally, he must be physically present before the couple to witness their exchange of
consent (which posture implies asking for the consent), and he must make some gesture of its
reception, even if he omits the formula of the marriage rite. The mere fact of recording the
marriage in the parish register would be an implicit act of reception.4
In a mixed marriage in the Catholic Church, it is invalid for a non-Catholic minister
to ask for and receive the consent of either party. Likewise, a Catholic minister should not
do this at a marriage in a non-Catholic church celebrated with a dispensation from form,
although this would not affect validity. It is also invalid for two ministers to receive the
consent, one of the bride the other of the groom. The pastor or delegated minister must
receive the consent of both.5
The need of the parties to manifest consent for validity is stated explicitly in CCEO, c.
837, §1. In the Latin Code, this requirement is implicit in the necessity of the officiant asking for
and receiving the consent, and it is explicit in c. 1057, §1. The parties must consent to marry
each other. Manifestation of consent is not required for the marriage of non-Catholics, unless the
law that binds them, ecclesiastical or civil, requires it for validity.
3
If the assistance were forced, it would be invalid, in accord with c. 125, §1. If the priest or deacon
assists in substantial ignorance or error, it would be invalid; it is likewise invalid if he acts in ignorance or
error which amounts to a condition sine qua non on his assistance (c. 126, §1).
U. NAVARRETE, “Sensus verborum exquirit et recipit manifestationem consensus matrimonialem (c.
1108, §2),” in Periodica, 38 (1994), pp. 611-634.
4
5
CDF, reply, 28 November 1975, in CLD, VIII, pp. 820-821.
30
-31-
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.
Defects of Canonical Form
The canonical form can be defective in many ways due to the parties themselves, the
witnesses, the minister who is assisting, or invalid delegation. Each of the following are defects
that result in the invalidity of the marriage.
1.
Neither party is a Latin Catholic [capable person].
2.
One or both parties did not manifest consent to marry the other party by words or by
some sign [formality of law].
3.
There were no witnesses or only one witness [requirement of law].
4.
Either of the two witnesses lacked the use of reason, or was incapable of hearing or
seeing the manifestation of consent, or could not understand what it meant [incapacity].
5.
The officiant did not assist actively by asking for and receiving the consent of both
parties [required formalities].
6.
The officiant lacked the use of reason at the time of the assistance, for example, due to
inebriation [incapacity].
7.
The officiant was in substantial error or ignorance about what he was doing, for example,
he thought he was only doing a rehearsal instead of the actual wedding.
8.
The officiant was forced into assisting [defects of will].
9.
The faculty was not granted, but the officiant thought it was.
10.
The officiant was outside his territory.
11.
The officiant had a personal jurisdiction and neither of the parties belonged to that
personal jurisdiction.
12.
The officiant had not been given the habitual faculty in writing.
31
-32-
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.
13.
The special delegation had not been given expressly, whether explicitly or implicitly, to a
specified person or persons.
14.
The special delegation had not been given for a specified marriage or marriages.
15.
The subdelegation was granted without permission of the one delegating.
16.
17.
The officiant was not in full communion with the Catholic Church, or had been
suspended or excommunicated and the penalty was imposed or declared.
The pastor or local ordinary was not validly appointed to the office.
18.
The dispensation from canonical form is defective and the marriage invalid:
a. if the dispensation was not given by the local ordinary of the Catholic party;
b. if the dispensation was granted by the local ordinary to two Catholics;
c. if the marriage was not celebrated in some public form;
d. if there was not a just and reasonable cause for the dispensation, taking into account
the circumstances of the case and the gravity of the law (c. 90; “grave difficulties” is for
liceity only);
e. if, in the petition for the dispensation, a false reason was given (obreption) or the truth
was concealed (subreption) (c. 63).
All of the above defects could be sanated. With respect to some of them, the Church might
supply the missing faculty as below, provided consent endures.
32
-33-
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.
Dispensations
As a reminder and in order to have the dispensations for marriage handy the canons
regarding dispensations are listed below.
Can. 1079 §1 When danger of death threatens, the local Ordinary can dispense his own
subjects, wherever they are residing, and all who are actually present in his territory, both
from the form to be observed in the celebration of marriage, and from each and every
impediment of ecclesiastical law, whether public or occult, with the exception of the
impediment arising from the sacred order of priesthood.
§2 In the same circumstances mentioned in §1, but only for cases in which not
even the local Ordinary can be approached, the same faculty of dispensation is possessed
by the parish priest, by a properly delegated sacred minister, and by the priest or deacon
who assists at the marriage in accordance with can. 1116 §2.
§3 In danger of death, the confessor has the power to dispense from occult
impediments for the internal forum, whether within the act of sacramental confession or
outside it.
§4 In the case mentioned in §2, the local Ordinary is considered unable to be
approached if he can be reached only by telegram or by telephone.
Can. 1127 §1 The provisions of can. 1108 are to be observed in regard to the form to be
used in a mixed marriage. If, however, the catholic party contracts marriage with a noncatholic
party of oriental rite, the canonical form of celebration is to be observed for
lawfulness only; for validity, however, the intervention of a sacred minister is required,
while observing the other requirements of law.
§2 If there are grave difficulties in the way of observing the canonical form, the
local Ordinary of the catholic party has the right to dispense from it in individual cases,
having however consulted the Ordinary of the place of the celebration of the marriage;
for validity, however, some public form of celebration is required. It is for the Episcopal
Conference to establish norms whereby this dispensation may be granted in a uniform
manner.
33
-34-
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.
§3 It is forbidden to have, either before or after the canonical celebration in
accordance with §1, another religious celebration of the same marriage for the purpose of
giving or renewing matrimonial consent. Likewise, there is not to be a religious
celebration in which the catholic assistant and a non-catholic minister, each performing
his own rite, ask for the consent of the parties.
--3.
General bibliography
The bibliography on matrimonial consent is obviously quite extensive. It would
not be realistic to list all the works on the topic.
However, three excellent works could be given particular prominence since they
provide good summaries of the Church's teaching and legislation on the matter;
these works were published in the period around the promulgation of the new
Code:
MACKIN, Theodore, S.J., What is Marriage? Marriage in the Catholic Church,
New York, Paulist Press, 1982, viii-366p.
MACKIN, Theodore, S.J., Divorce and Remarriage.
Church, New York, Paulist Press, 1984, ix-565p.
Marriage in the Catholic
ORSY, Ladislas, S.J., Marriage in Canon Law.
Texts and Comments.
Reflections and Questions, Wilmington, Glazier, 1986, 328p.
For the theology of marriage, an excellent work in French was published some
twenty-five years ago; the principles outlined therein are still valid for use in our
courts today:
COMMISSION THEOLOGIQUE INTERNATIONALE, Problmes doctrinaux du
mariage chrétien, Louvain-la-Neuve, 1979, 377 p. (Collection Lex Spiritus vitae,
No. 4).
34
-35-
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.
Among other studies of general interest based on the 1983 Code (or on its
preparatory texts), we could mention the following:
BANARES, Juan Ignacio, "De Matrimonio", in INSTITUTO MARTIN DE
AZPILCUETA, Comentario exégetico al Código de Derecho canónico,
Pamplona, EUNSA, 1996, Vol. III, pp. 1019-1101.
BONNET, L., "La communauté de vie conjugale en droit canonique", in Revue de
droit canonique, (R.D.C.), 37(1987), pp. 32-54.
BRESSOUD, P.O., “Valeurs et limites de la position de l’Église catholique vis-vis des formes de cohabitation contemporaine”, in Intams, 7(2001), pp. 56-66.
BROWN, R., “From Total Simulation to Error Determining the Will”, in Studia
canonica, (35(2001), pp. 151-174.
BURKE, C., “The Object of Matrimonial Consent: A Personalist Analysis”, in
Forum, 9(1998), pp. 39-117.
-----, “Progressive Jurisprudential Thinking”, in The Jurist, 58(1998), pp. 437-478.
CANDELIER, G., “Les apports originaux de Mgr José Maria Serrano Ruiz dans la
jurisprudence Rotale”, in Studia canonica, 30(1996), pp. 437-486.
-----, “Le bonum prolis: doctrine et évolution de la jurisprudence”, in Studia
canonica, 34(2000), pp. 197-246.
CONNOLLY, P., “Contrasts in the Western and Eastern Approaches to
Marriage”, in Studia canonica, 35(2001), pp. 357-402.
DANEELS, F., Le mariage dans le Code de droit canonique, présentation et
commentaire, Luçon, Les cahiers du droit ecclésial, 1984, 68 p.
DOYLE, T.P., ed., Marriage Studies. Reflections in Canon Law and Theology;
Vol. I, Toledo, C.L.S.A., 1980, 155 p.; Vol. II, Washington, C.L.S.A., 1982, 202 p.;
Vol. III, Washington, C.L.S.A., 1985, ix-208 p. (Vol. IV, 1991, edited by J.
Alesandro et al).
35
-36-
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.
GRAHAM, J., “Error”, in CLSA Proceedings, 63(2001), pp. 101-109.
GRAMUNT, I., HERVADA, J., WAUCK, L.A., Canons and Commentaries on
Marriage, Collegeville, The Liturgical Press, 1987, vii-198p.
JORGENSEN, G., ed., Marriage Studies V.
Washington, DC, CLSA, 2004, x-226p.
Sources in Matrimonial Law,
-----, “Culture and Error non simplex – Not so Rare”, in CLSA Proceedings,
62(2000), pp. 153-216.
KELLY, D., "Marriage", in CLSGBI, The Canon Law. Letter and Spirit, Dublin,
Veritas, 1995, pp. 571-578, 610-622.
La nuova legislazione matrimoniale canonica. Il consenso: elementi, difetti, vizi,
Romae, Libr. editrice vaticana, 1986, 208 p. (Coll. Studi giuridici, X).
LUDICKE, K., "Le canon 1095 du C.I.C. 1983 -- Gense et exégse", in
R.D.C., 37(1987), pp. 90-105. (See also the original German text in R.D.C.,
36(1986), pp. 27-57).
MORRISEY, F., "L'évolution du texte des canons 1055 et 1095", in Studia
Canonica, 19(1985), pp. 17-29.
O'LOUGHLIN, B., Marriage, A Covenant and Consortium Totius Vitae: Scriptural
basis, Conciliar teaching and the Revised Code of Canon Law, Ottawa, Saint
Paul University, 1985, xiv-506p. (Doctoral dissertation).
ORSY, L., "Christian Marriage: Doctrine and Law. Glossae on Canons 10121015", in The Jurist, 40(1980), pp. 282-348 (with a bibliography).
-----, "Faith, Sacrament, Contract, and Christian Marriage: Disputed Questions",
in Theological Studies, 43(1982), pp. 379-398.
-----, "Matrimonial Consent in the New Code: Glossae on Canons 1057, 10951103, 1107", in The Jurist, 43(1983), pp. 29-68.
36
-37-
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.
PAGÉ, R., “Marriage: Sacrament of Love or Sacrament of Bond?”, in Studia
canonica, 34(2000), pp. 5-21.
PFNAUSCH, E., “The Good of the Spouses in Rotal Jurisprudence”, in The
Jurist, 56(1996), pp. 527-556.
POMPEDDA, M.F., "Lack of Faith and Matrimonial Consent: Juridical Aspects",
in J. ALESANDRO, ed., Marriage Studies, IV, CLSA, Washington, 1991, pp. 3365.
ROBINSON, G., "Unresolved Questions in the Theology of Marriage", in The
Jurist, 43(1983), pp. 69-102.
-----, Marriage, Divorce and Nullity, Melbourne, Dove, 1984, viii-95p. (French
translation, 1986, Ottawa).
ROBITAILLE, L., “Consent, Culture and the Code”, in Studia canonica, 33(1999),
pp. 125-138.
SABLE, R.M., ed., Incapacity for Marriage. Jurisprudence and Interpretation,
Rome, Pont. Univ. Gregoriana, 1987, xxxii-272p.
SEQUEIRA, J.B., Tout mariage entre baptisés
sacramentel?, Paris, Cerf, 1985, ix-683-lxix p.
est-il
nécessairement
SHERBA, G.M., “Canon 1096: Ignorance as ground for nullity”, in CLSA,
Proceedings, 59(1997), pp. 282-299.
-----, Canon 1096 on Ignorance with Application to Tribunal and Pastoral
Practice, Dissertation.com USA, 2001, 186p.
VILADRICH, P.J., "De consensu matrimoniali", in INSTITUTO MARTIN DE
AZPILCUETA, Comentario exégetico al Código de Derecho canónico,
Pamplona, EUNSA, 1996, Vol. III, pp. 1211-1445.
WOESTMAN, W.H., ed., Simulation of Marriage Consent.
Doctrine.
Jurisprudence. Questionnaires, Ottawa, Saint Paul University, 2000, xii-388p.
37
-38-
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.
-----, “Simulation Revisited”, in CLSA Proceedings, 65(2003), pp. 241-256.
WRENN, L., “Sacramentality and the Invalidity of Marriage”, in The Jurist,
60(2000), pp. 205-232.
----Note: specific bibliography will be indicated for each chapter.
Special bibliography
a.
Declarations of the magisterium and decisions of the Roman Rota
1930, December 31: Encyclical letter "Casti connubii", Pius XI, in A.A.S.,
22(1930), pp. 540-592.
1944, April 1: Decree, S.C. Holy Office, "The Ends of Marriage", in A.A.S.,
36(1944), p. 103.
1965, December 7: Vatican Council II, Constitution "Gaudium et Spes", in
A.A.S., 58(1966), pp. 1025-1120.
1968, July 25: Encyclical letter "Humanae vitae", Paul VI, in A.A.S.,
60(1968), pp. 481-503.
1969, February 25: Rotal decision by Msgr. Lucien Anné, in S.R.R. Dec.,
61(1969), pp. 174-192.
1970, May 4: Allocution to the Teams of Our Lady, Paul VI, in A.A.S.,
62(1970), pp. 428-437.
1973, April 5: Rotal decision by Msgr. José-Maria Serrano-Ruiz, in S.R.R.
Dec., 65(1973), pp. 322-343.
38
-39-
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.
1976, February 9: Allocution to the Roman Rota, Paul VI, in A.A.S.,
68(1976), pp. 204-208.
1981, November 22: Apostolic Exhortation "Familiaris Consortio", John
Paul II, in A.A.S., 74(1982), pp. 82-191.
1983, January 25: Apostolic Constitution "Sacrae Disciplinae Leges",
John Paul II, promulgating the revised Code of Canon Law.
1992, October 11: Catechism of the Catholic Church, NN. 1601-1666 (The
Sacrament of Matrimony)
1994, John Paul II, "Letter to Families", February 2, 1994, in Origins,
23(1993-1994), pp. 637, 639-659, esp. No. 19 ("The Great Mystery"), pp.
653-655.
2001, John Paul II, Allocution to the Roman Rota, “God Himself is the
Author of Marriage” (and marriage as a community of life), February 1,
2001, in W.H. WOESTMAN, ed., Papal Allocutions to the Roman Rota
1939-2002, Ottawa Saint Paul University, 2002, pp. 260-266.
2003, Congregation for the Doctrine of the Faith, “Same-sex Unions
‘Harmful to Society’”, June 3, 2003, in Origins, 33(2003-2004), pp. 177,
179-182.
b.
Commentaries
BURKE, C., "Personnalisme et divers aspects de la jurisprudence", in
Revue de droit canonique, 45(1995), pp. 331-349.
DOMS, H., The Meaning of Marriage, New York, Sheed and Ward, 1939,
xxiv-229p.
39
-40-
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.
FELLHAUER, D., "The Consortium omnis vitae as a Juridical Element of
Marriage", in Studia Canonica, 13(1979), pp. 3-171 (with extensive preCode bibliography).
HUBER, J., "Convictio, Communio, Consortium. Observa- tiones ad
terminologiam notionis matrimonii", in Periodica, 75(1986), pp. 393-408.
LESAGE, G., "The 'Consortium Vitae Conjugalis":
Applications", in Studia Canonica, 6(1972), pp. 99-113.
Nature and
MENDONCA, A., The Theological and Juridical Aspects of Marriage, in
Studia canonica, 22(1988), pp. 265-304.
----, "Recent Rotal Jurisprudence from a Sociocultural Perspective", in
Studia canonica, 29(1995), pp. 29-83, 317-355.
----, “Recent Developments in Rotal Jurisprudence on Error on Fact”, in
Philippiniana Sacra, 36(2001), pp. 413-470.
OKEKE, H., "Care of Christian Marriage and Family Life in Nigeria", in
Studia canonica, 27(1993), pp. 413-433.
PALMER, P., "Christian Marriage: Contract or Covenant?", in Theological
Studies, 33(1972), pp. 617-665.
SERRANO-RUIZ, J.M., "Le droit  la communauté de vie et d'amour
conjugal comme objet du consentement matrimonial", in Studia Canonica,
10(1976), pp. 271-301.
----, "The Personal Character of Marriage. A Swing of the Pendulum", in
R. TORFS, ed., A Swing of the Pendulum. Canon Law in Modern Society,
Leuven, Katholieke Universiteit Leuven, Uitgeveru Peeters, 1996, pp. 3345.
URRUTIA, F., "The Challenges on Canonical Doctrine on Marriage Arising
from Africa", in Studia canonica, 23(1989), pp. 5-26.
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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.
In addition, numerous insights are to be found in the periodical
Communicationes on the canonical definition of marriage (see Chapter II).
For canon 1059.
GRECH, M., “The Harmonisation of the Religious and Civil Dimensions of Canonical
Marriage in Malta”, in Forum, 11(2000), pp. 1-402 (Doctoral dissertation).
INGELS, G., “Competence of the Civil Forum When Examining the Invalidity of
Marriage”, in Roman Replies and CLSA Advisory Opinions, Washington, CLSA, 2003,
pp. 70-73. (In relation to this article, see also J. HUELS, The Pastoral Companion: A
Canon Law Handbook for Catholic Ministry, 3rd ed. rev., Quincy, Franciscan Press,
2002, p. 183).
JEYASEELAN, SJ, “Civil Law Confronts Canon Law”, in Vidyajyoti, 64(2000), pp. 685693; 763-776 (in the situation in India).
S.R.R.Dec., c. DE LANVERSIN, July 16, 1996, in Studia canonica, 36(2002), pp. 517540, on customary marriage in Africa.
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