Moral Theology / A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities

by John A. McHugh; Charles J. Callan

(a) The word union may be taken actively for the passing act of internal and external consent, and then it refers to marriage in its state of becoming, as it is a contract and (among Christians) a Sacrament; or it may be taken, as it were passively, for the bond that results from the mutual consent pledged by the parties, and then it refers to marriage as a permanent state of life.

(b) The marriage union is conjugal; that is, its end is the procreation and rearing of children, or the making of a family, and it therefore gives the right to the natural acts of generation. A contract which has other ends (e.g., a business agreement of labor or of partnership), or which excludes procreation (e.g., an agreement of onanistic concubinage), is not a marriage.

(c) Marriage is between qualified persons, for certain individuals are excluded by natural, divine or human law from making a valid contract of marriage.

(d) Marriage is between two, one man and one woman. This unity of marriage is its first property, resulting from its nature as a relationship intended primarily for the propagation of the race and its proper upbringing, and secondarily for the peace and contentment of the married couple, their mutual assistance to one another, and their protection against carnal temptations (299). For polyandry is opposed to both these ends, and therefore to natural law, while polygamy does not accord well with the secondary ends of matrimony and is forbidden for all by the law of Christ (“They shall be two in one flesh,” Matt., xix. 3 sqq.). On the permission of polygamy in the later Old Testament ages, see 303, 311.

(e) Marriage obliges the parties to one another for life. This indissolubility of marriage is its second property, and also follows from the natural ends of marriage. For the right propagation of the human race is a matter that concerns not merely the married couple or human society, but also God Himself, who is matrimony’s immediate author and lawgiver, and God has decreed that marriage be unbreakable except in the few instances allowed by Himself: “What God hath joined together let no man put asunder” (Matt., xix. 6). Since the good of marriage is inferior to the good of faith, the divine law permits a dissolution of the bond in the case known as the Pauline Privilege (I Cor., vii. 12-15); similarly, in a very few instances where there is a serious good more important than the preservation of the bond (the faith of a convert from infidelity, the observance of the counsel of chastity, the public welfare), and where the bond itself has not the strength of sacramentality (i.e., in a non-Christian marriage), or has not been consummated in a Christian marriage, the divine law authorizes the Church, the representative of God, to decree a dissolution (see 363, 314). Not only are these cases few, but the conditions are strict (see Canons 1120-1127), and hence these exceptions are no menace to the ends of marriage. But once consummation has been added to consent in a Christian marriage, thereby perfecting the natural contract and extending the sacramental signification from the mystical and severable union of Christ with the soul by grace to the physical and perpetual union of Christ with the Church by the Incarnation, the indissolubility becomes complete and admits of no exception. The bill of divorce under the Mosaic Law seems to have been a true and complete dissolution of the marriage tie, but there is good reason to think that it was a toleration of the Jewish civil code, not a permission given by God. The valid marriages of infidels as such are not subject to the judgment of the Church; and the civil authority has no power to dissolve them (even when they are childless), otherwise individuals and the family and the State will suffer, as experience proves.

2788. Distinctions.—(a) In reference to validity, marriage may be true (i.e., validly contracted), or presumed (i.e., taken by the law to be validly contracted on account of some fact, as when the validity of a marriage was not attacked during the lifetime of the parties), putative (i.e., really invalid, but contracted in good faith by at least one of the spouses and not yet known by both to be certainly null), attempted (i.e., contracted invalidly in bad faith, at least one of the parties being aware of an invalidating impediment).

(b) In reference to perfection, marriage is legitimate (when it is validly contracted between non-baptized persons), ratified or sacramental (when it is celebrated between baptized persons), consummated (when the consent given in the contract is subsequently completed by the conjugal act). It seems that marriage lawfully contracted between a baptized and a non-baptized person is not ratified or sacramental, for, as the consent must be mutual, so should the Sacrament be mutual. But a marriage free from substantial defects is always a Sacrament, even though the contractants do not wish this, when it is contracted between Christians, whether they be Catholics or non-Catholics; and a marriage contracted between non-Christians becomes a Sacrament on the Baptism of the parties.

(c) In reference to its manner, marriage may be clandestine (i.e., not celebrated before the pastor and two witnesses), or secret (i.e., celebrated before the pastor and two witnesses pledged to secrecy, and without the publicity the Church ordinarily requires), public (i.e., celebrated before pastor and witnesses and with publicity such as announcement to the people and registration in the usual marriage book). The secret marriage is also known as a marriage of conscience (Canons 1104-1107).

(d) In reference to the law under which it is performed, marriage is either canonical or civil. A purely civil marriage between Catholics is invalid, as far as the bond is concerned, since their contract, as being a Sacrament, is subject to the Church. But the civil marriage, as far as the purely civil consequences are concerned, is a lawful ceremony, and is obligatory if required by law. A morganatic marriage is made between two persons of unequal condition (e.g., between a king and a plebeian woman) on condition that the inferior spouse and progeny shall not share entirely in the titles and property of the superior spouse.

2789. The Elements of the Contract of Marriage.—(a) The subject-matter of the contract is the conjugal right or the lawful power of exercising with the other party acts suitable for generation.