Jacques Maritain Center :
Elements of Moral Theology
Matrimony may be defined as the permanent union of one man and one woman, legitimately made, for the generation and education of children, and for mutual service in the family life. Such a union is a law of nature; not that there is any physical force bringing it about, but because man is naturally inclined to it, and, by his own free will, his uncorrupted nature will lead him to such a union. The family is prior in time to the state, and even more necessary for the continuance and well-being of society and the individual. If man is by nature a "social animal," still more is he by nature a member of a family (Nic. Eth. viii. 12). The family is essential to the well-being of man; for, first, the man and the woman are mutually dependent upon one another for bodily and spiritual service, as well as for the exercise of natural affections; and, next, children must not only be brought into existence for the continuance of the human race, but they must be supported, educated, and assisted in the early part of their life through many years they need to be counselled and guided even when they begin to be independent of their parents; and all this requires a determined parentage, such as is wholly inconsistent with that promiscuous concubinage which characterizes many lower species of animals.
Anthropologists may find perversions of this law of nature among some barbarous tribes; hut this fact constitutes no argument against the existence of the law, since science cannot well close its eyes to the actual corruption and degradation of no small portion of the human race. To assert that all which actually exists among men is natural, is a patent absurdity which needs no refutation by Moral Theology.
Because matrimony is a law of nature, it does not follow that all are required to marry when they reach suitable age. What is necessary for the perfection of the individual is binding on all. But that which is required by society in general is naturally distributed, one doing this, and another that. So it may be true, and it is true, that some may serve the community in other ways than by marrying, finding elsewhere the "vocation" to which God has called them.
A life-long contract. Other contracts between man and man may be for a limited time, but the natural aims and results of this contract of matrimony distinguish it and make it life-long.
Concubinage, or the union of man and woman outside of matrimony and for a limited time, is contrary to the law of nature, and is therefore per se one of those deadly sins which exclude from the kingdom of God. It voluntarily fails of those ends which the God of nature intends. Its aim may be merely sensuous gratification, or it may be evading the responsibilities which follow the production of children, whose welfare requires a life-long care. Either way, or in both ways, one of nature's primary laws is violated. And this is per se mortal sin; because the bonds of charity between man and man are broken, and equally so those between man and God, whose primary law is violated.
A fortiori, promiscuous fornication is violation of nature's law, and mortal sin (1 Cor. vi. 9).
The Catholic Church found the civilized world polluted far and wide by every conceivable violation of the law of nature; but she renewed the law of nature as part of her discipline, and grace to obey it was given.
But matrimony is not subject only to the law of nature. Since this permanent union of the man and woman must be voluntarily entered upon, it involves a contract of which society must take cognizance, and the family thus formed is one of the units which constitute the state, and becomes subject to its just laws, both in the creation of the contract and in the further ordering of the partnership. And, finally, marriage, as a sacrament of the Christian Church, becomes Holy Matrimony, and the definition given above needs to be completed thus: "Matrimony is a permanent union," etc., having power of conferring on the parties to it sanctifying grace for due fulfilment of its objects.
Thus, Holy Matrimony is, at the same time, a contract of which civil law and morals take cognizance, and a sacrament out of which spring special obligations.
As a contract, it is a free and voluntary agreement between two parties entering into life-long partnership, giving one another nuptial rights, mutually promising to fulfil all those duties, and receiving all those rights, which are essential to the existence of a family. See the betrothal in the marriage service.
As a sacrament, if duly received, it confers grace for the sanctification of this union, for faithful execution of the promises made, and specially for its great object -- the holy education of children as the children of God (Tert., ad Uxor. ii. 8; 5. Ignat., ad Polyc. ii.).
The word sacrament is, of course, now used in its wider sense of (1) "an outward and visible sign (2) of an inward and spiritual grace given unto us, ordained by Christ as (3) a means whereby we receive the same, and a pledge to assure us thereof." But if we attempt to follow the medi~val theologians in their scholastic distinction of matter and form, we may find them not at one among themselves, and involve ourselves in needless confusion.
It is sufficient to observe that mutual consent, expressed by words or other outward signs, is the efficient cause of the contract, and the outward part of the sacrament. Each of the two parties gives and receives rights in relation to the other (1 Cor. vii. 4). This is not a promise concerning the future; such a promise is an espousal or betrothal. The contract of marriage is de praesenti; its words are "I [now] take thee to my wedded wife." The spiritual grace sanctifies the contract, and gives the needful means that the persons concerned "may surely perform and keep the vow and covenant betwixt them made."
This sacrament makes the marriage indissoluble except by death. What God has joined man cannot put asunder. But as a contract, although it be for life, the state may have the same control over marriage as over other contracts.
The subject of this sacrament is any baptized person having no impediment. Baptism is the door to the Christian life, and those who have not entered by that door, though capable of making the marriage contract with its accompanying obligations, are not capable of making a Christian marriage. Denying this principle of Moral Theology is denying the existence of anything distinctive in Christian marriage.
Hence, it follows that if the sacrament confer grace, or create any added obligations over and above those of the civil contract of marriage, that grace and those obligations are absent from the union of a Christian with an unbaptized person, or of two unbaptized persons. Such a marriage, under the requisite conditions, is altogether valid as a contract; but it seems to be eminently improper for a priest to give the nuptial benediction which is intended for those who have united themselves in Holy Matrimony.
The marriage of one of the faithful with one who belongs to some heretical sect, stands on a different footing. For, as such a person has been introduced into the Christian fold by holy Baptism duly administered, the same person is capable of receiving a valid sacrament in Holy Matrimony; and we may trust that the inward grace is not absent from one who devoutly asks for it.
But the obligations of the Church to the offspring of such a marriage are part of her law received from God (1 Cor. vii. 14). hence, on account of the practical difficulties in the way of fulfilling those duties, the Church is bound to discourage such marriages between the faithful and those who are, outwardly at least, separated from the fold (2 Cor. vi. 14).
Since Holy Matrimony is a "sacrament of the living," one who receives the grace must have no unrepented sin burdening his conscience.
Who is the minister of this sacrament? We can only reply, the parties to the contract themselves. For, as a contract, whether publicly or privately made, it is binding, and need not be repeated. Suppose, then, that one or both of the two parties, at the time of making the contract, were outside of Christ's Church if converted, they will not be remarried; their baptism gives them a claim to the nuptial benediction; but their already valid contract now takes the character, obligations, and grace of such a marriage as they would have celebrated at first had they been wedded in God's Church.{1}
Suppose, again, that in ignorance or heedlessness two baptized persons -- e.g., a runaway couple -- have gone to a justice of the peace for a civil cermony, or, in some State of the Union where such a form is valid, have taken one another for man and wife, in the presence of two or three witnesses. The contract will be valid, we suppose; then the union is that of Holy Matrimony, and cannot be repeated with the Church's service, for the parties are already married. The nature of the contract, and ils social relations, require that it be in the presence of witnesses. Marriage, accordingly, in the presence of a Protestant minister or of a justice of the peace is valid, confers the rights, creates the duties, and cannot be repeated.
What the Church adds in her marriage service is the benediction of the priest (the parish priest of one or other of the two parties. No other without license can lawfully give it. Canons of American Church, title i., can. 12; Canons of 1603, No. 62).
This benediction may follow, or it may precede, the civil recognition of the marriage contract.
Note that a deacon has received no such power to bless in God's name.
Conditions of honourable and holy Matrimony. There are three goods which distinguish Holy Matrimony, and separate it from fornication and concubinage: (1) The sacrament which makes it honourable, holy, and indissoluble by any earthly power in state or church; (2) fidelity to a promise made to "keep only unto" one so long as life lasts; (3) children as the gift of God, to be nurtured for His service. These three, of which the first is chief, separate the spiritual union of Christians in Holy Matrimony from the fleshly union of beasts and fornicators. The law of conjugal debt is laid down in God's word, 1 Cor. vii. 3-5. And note the sin of refusing obedience to it, in order to avoid the burden of offspring.
Betrothal is a true, deliberate, mutual promise, duly expressed, that this contract will, within a reasonable period, be made. Such promise may be either public (of which the first part of the Anglican marriage service retains the form) or private; but it is subject at the time only to the conditions requisite for lawful matrimony. Such espousals, commonly treated so lightly, are binding both in law and in morals. Law, therefore, not only punishes for pecuniary loss, but gives exemplary damages if such promise be violated.
Careless promises, however, respecting the future may possibly be no true betrothal; although civil law may discourage such by giving damages for "breach of promise."
The contract must be fulfilled within reasonable time; that is implied in the act of betrothal.
How is such an "engagement" dissolved? (1) Long-continued absence of either one of the two parties certainly releases the other, if it be so desired, for the contract was not made subject to the serious injury of either of them. (2) Grave and permanent disease releases, for a serious change of circumstances may annul any contract de futuro, in foro conscientiae. (3) Since the parties promise to give nuptial rights to one another, unchaste conduct in either will release the innocent from the promise made. (4) The contract de futuro may be dissolved by mutual consent -- e.g., when the parties discover their "incompatibility." (5) Although the marriage of either to a third person is unlawful, yet if done it annuls the betrothal previously made. (6) The extreme youth of the betrothed, or either of them, may render the promise void, because it required full use of judgment and will to bind one's self for life-long obligations.
Even if the betrothal were confirmed by an oath, it would be dissolved under these conditions.
But ordinary misfortunes are not a just plea for release from the promise formally made and accepted. Herein civil law seems to be essentially just.
(Qu. 1. Suppose that one of the parties to the "engagement" find it impossible to take the marriage vow to "love," etc., is the other bound to release from the contract, while securing damages for breach of promise? (See Irving's case, found in Froude's Life of Carlyle.) Qu. 2. Can a priest lawfully bless a marriage with a third party when the previous contract has not been released?
Qu. 3. Suppose that seduction has followed promise of marriage, is it a "constructive" marriage? It may be so construed in an exterior tribunal, nothing appearing to the contrary, because the consummation of marriage may be supposed to have followed mutual consent to the bond. But in foro conscientiae a promise concerning the future is not a valid marriage bond, and the act charged is simply the deadly sin of fornication. But usually the only reparation possible is, of course, the solemnization of marriage between the guilty persons.
Qu. 4. Suppose that parents refuse their assent after the betrothal? Minors certainly sin gravely if they engage themselves without parents' consent, and the contract is void. But if the parties be of full age, judgment must be made between the reverence due to parents' counsel and the rights of children to order their own life.)
How is the contract of marriage made? (1) Consent must be mutual and de praesenti; (2) it must be voluntary and deliberate consent; (3) it must be manifested by outward signs. If these three be all the requisite conditions of valid matrimony, it follows that a contract of this kind secretly made, though it is grave violation of the laws of God and man, and in the case of Christians forfeits all claim to the blessing of the sacrament, yet is a valid marriage, gives the rights and creates the obligations of matrimony, and must not be repeated. Although there is contempt of God, yet the two parties have the disposal of their own persons, and of all that marriage requires. The evil results following from such marriage without witnesses are too apparent to call for any justification of the laws of Church and State in this matter.
A conditional consent to the contract, though highly improper, would not invalidate the contract or the sacrament (1) if the condition be verified, and (2) be not inconsistent with the ends of matrimony. Thus, if the condition were that the nuptial debt shall not be paid, there would be no marriage. Again, if the condition affect simply the past or present, the marriage stands if the condition prove true. If the condition be de futuro -- e.g., "I now marry you if you make your will in my favor within six months," or "if you join the Church," the marriage is not perfected until the conditions of it are fulfilled. Needless to say that no priest of the Church can lawfully have any share in such a conditional contract.
A more difficult question is that of fictitious consent. If both parties have "married in joke," conscience can find in the fictitious contract no obligation; although external tribunals, considering how easily this pretext for dissolving marriage may be fraudulently employed, may be slow in accepting it. If the parties have treated one another as man and wife, this must be held to be true inward consent to the outward contract.
A more difficult case is where there has been sincere consent on one side and fictitious consent is asserted on the other. Certainly the parties are bound to separate until the error is rectified. If the reputed marriage have been consummated there is the obligation of giving a true consent to the contract.
(Qu.: If the marriage be not consummated, can the parties in such a case have the contract annulled by mutual consent?)
The consent may be given for some base end, as when one marries in order to get a fortune; but this does not affect the outward contract or the sacrament. There is valid matrimony without the grace which God gives to a devout seeker for it. So far the case is parallel to that of one who baptizes for pay, or who simoniacally buys the sacraments. The evil end is accidental to the sacrament; it belongs to the contracting party, not to God's institution.
Marriage of minors. Consent of parents is not necessary for a valid contract, since by the law of nature parents have not power over their children's souls and bodies in such a life-long relation as matrimony involves. If they had, they could also make void a marriage vow, which is absurd to maintain. But reverence and obedience may make such a marriage unlawful before God, as before the state. And the priest gravely sins against God and against society who marries a minor without the parents' consent, except under pressure of the gravest moral necessity -- e.g., gravida puella.
It will be remembered that contracts in general made by minors are not bound on them by law, though the other party, if adult, is so bound; and the former, not the latter, can sue for breach of promise (Blackst. i. 436).
Yet, in conscience, if the minor have full possession of his powers of judgment, and the contract be not an injurious one, he is morally bound to fulfil it when he reaches age of independence. And this principle includes the contract of marriage.
Impediments to valid marriage may arise from the law of nature, and no human power can alter it or remove them. Impediments to marriage, as a sacrament of the Church, may arise from God's revealed law binding on His Church. And, finally, as a social state, marriage may be prohibited by civil laws, which vary in different places and ages of the world. This distinction among impediments is important to observe in considering them.
It will be understood that these impediments must exist as such at the time of celebrating the nuptial rite. If any of them should afterwards occur, it would not annul a valid marriage.
Impediments to matrimony may be (1) only prohibitory, "impedientia;" i.e., the marriage is unlawful, but it is valid when made.
(1) Prohibitory impediments are: (a) lack of consent from parents in the case of minors, which has already been noticed; (b) previous espousals, when the party to them has not been released from the contract, also noticed above; (c) clandestine marriage. Since marriage involves social relations, the state may require security for a public contract, and violation of such laws will constitute an unlawful clandestine marriage. And it is certainly an obligation of the priest to conform to civil law in this matter, and in all others where the law of the state does not contravene the law of the Church, which is supreme in matters of religion, and Christian matrimony is certainly a matter of religion. If the two authorities oppose one another, the conscientious priest can only say, "We must obey God rather than man."
But the Church herself, also, has always strictly regulated this matter of the publicity of Holy Matrimony. The English canon, requiring three publications of the banns, fixing the hour between eight and twelve in the forenoon, the place as the parish church of one of the parties, sufficientlv shows that the English Church forbids clandestine marriage. The American Church, tolerating the absence of most of these precautions, has certainly not abolished them all. For the parish priest, according to her canon, is still the only lawful minister, in this as in any other religious rite; although license may be said to be tacitly given when he knows of the interference of another and does not protest against it. Clandestine marriage, then, must be defined as marriage celebrated without due cognizance of (1) the Church, (2) the State, and (3) -- in the case of minors -- the parents. Clandestine marriage is grave sin in the parties and in a priest who sanctions it, except under the gravest necessity.
(Qu.: Is it not an unlawful clandestine marriage when the parties leave the State or the parish in order to evade the civil or the ecclesiastical law?)
(d) There are certain seasons of the Christian year when the marriage of Christians, with its accompanying festivities, is unbecoming. Such seasons as Lent and Advent, therefore, are by the ancient ecclesiastical law of the Anglican Church prohibited seasons; and although toleration of contrary custom may be held to be virtual abrogation of a purely positive law, yet, the reason for it still remaining, it must be held to be at least decent that the marriage at such seasons shall, if celebrated at all, be as quiet and private as the nature of the service admits. (e) A vow of celibacy, not duly released, is a prohibitory impediment. (Qu.: (f) If civil law bind the priest, when it is not in conflict with higher law, may not prohibitory impediments arise from this source?)
(2) Impedimenta dirimentia. These make a marriage, in the view of the Church, void ab initio, although some of them may render it simply voidable in common law; i.e., the rights of marriage last until the sentence of the court annulling the marriage. Thus the children, if any, will be legitimate, etc.
These impediments, so far as Christian marriage is concerned, rest upon the law of the Church, for she has authority from Christ in this matter, since such authority is necessary for the government of the Christian society. The law of the state she cannot recognize, if any such law should interfere with her duty to the souls which are under her authority. For the Church alone has power in matters of religion, power to bind and to loose (S. Matt. xviii. 18).
The state, on the other hand, regulates only the outward civil contract, with its results. The education of children, therefore, involves the same principles; they are destined to become citizens of the state, but they are already, by baptism, members of the household of God. The state has the right to demand that they be duly prepared for future citizenship, but the Church has the obligation and power to train them as members of the society to which they belong. If the Church does her duty to her children, what the state requires will be duly provided for, and the state will have no further claim in the matter.
Invincible ignorance of an existing impediment does not render the marriage valid, for there was not in the beginning any true contract of marriage, and the law is not conditioned by the knowledge or the ignorance of those who are subject to it.
And, furthermore, although prescription may establish various civil claims -- e.g., in this case those of children -- no lapse of time can make wrong to become right, or render valid a union which was never Christian marriage at all. Separation a thoro appears to be the only alternative in such a ease. The hardship of it is parallel with that of physical or mental disease.
These impediments, it will be observed, directly and primarily affect the nuptial contract; indirectly; and secondarily, the marriage sacrament. They are
(a) Error. This is either substantial or "accidental" -- that is, it either concerns the person, or the qualities of the person. If the error were of the former kind, there was never any true contract, and the marriage was void ab initio. For consent is the cause of matrimony, as we have seen; and what avoids consent, avoids matrimony. But consent, the act of the will, presupposes an understanding of what is consented to. This being absent, there is no true consent. This is the law of nature respecting contracts in general.
But there may be error, even with accompanying fraud, respecting the qualities of the person married. The person is poor, sickly, quarrelsome, of intemperate habits, a widow, a false nobleman, etc. None of these things affect the essence of the contract, and it must stand, even if it would not have been made in case the circumstances were known. This is the law of both Church and state.
(b) Consanguinity is the natural relationship of those descended from the same father or mother, or both. As an impediment to marriage, it depends partly upon the law of nature, partly on Divinely revealed law, and partly upon human positive law. And these may establish different degrees of prohibitory consanguinity.
Observe that the question of legitimate descent does not enter into consideration.
The line of cognation is either direct or collateral; direct, as between parent and child; collateral, as between brother and sister. The student of the subject is liable to be confused at first in the numbering of degrees, since the civil law numbers in different mode from the canon law. It will be convenient for our purpose to adopt the degrees of the civil code, which reckons the number of persons concerned. Thus, either grandchild or sister stands in the second degree; first cousins, in the third degree, etc.
According to the canon law, as will be seen in the accompanying table, brothers and sisters are related in the first degree, first cousins in the second degree; the reckoning being made from the middle line. It will appear from the table that by ascending one more degree, and then descending to right and left, we should have cognates in the fourth degree, and so on. (See table of degrees.)
In the direct line, ascending and descending, consanguinity avoids marriage indefinitely. This is ruled by the law of nature. For the relation of husband and wife is inconsistent with that of parent and child. But the Divine revealed law goes further, and protects the family relation by prohibiting marriage to those who are ordinarily associated already by the intimate ties of the family. In other words, marriage is prohibited within the third degree, inclusive (degrees of civil law). This is the Levitical code, and the law of the Anglican Church, and courts of common law will treat such marriages as voidable (Blackst. i. 434).
It will be observed that half-brothers and sisters count as those related through the same father and mother.
Positive canon law has varied in extending still further prohibited degrees. The modern Roman Church prohibits marriage within the fourth degree, inclusive (canonical degrees); but the law being merely a positive ecclesiastical regulation grounded on the already existing intimacy of the relatives, dispensation from it may be obtained when good reasons are presented.
The Church cannot claim the power of dispensing from Divine law; and the question must therefore present itself how far this law extends. Beyond brothers and sisters (i.e., second degree), the question may possibly belong to positive ecclesiastical law.
(c) Affinity. This is created by conjugal union, whether licit or illicit. The Divine law says, "They are no more twain, but one flesh" (S. Matt. xix. 6). The husband becomes related to his wife's family as he is connected by blood with his own. And the wife takes the same position with respect to her husband's relatives. Affinity, therefore, according to the law of the Anglican Church and the common law, follows the same rules with consanguinity. The death of husband or wife leaves affinity unchanged, because, like consanguinity, it depends upon a past act which is unalterable; sc., that man and wife have been conjoined and become one flesh; not that they are so conjoined.
S. Paul explicitly extends the principle here involved to unlawful concubinage (1 Cor. vi. 16).
This seems to rest upon a law of nature. For if affinity create no such cognation, a man might marry his stepmother, which Revelation declares to be an abomination (Lev. xviii. 8). At the same time it is to be noticed that the limit of prohibitory degrees of affinity seems to be a question of positive Church law. And as the bond is not so close as that of consanguinity, marriages may be allowed in the one which would be prohibited in the other. So the Roman canons, extending prohibited affinity to the fourth degree (canonical degrees) in case of lawful union, set the limit at the second degree in case of unlawful union.
No affinity is created between the blood relations of husband and wife. Two brothers may marry two sisters, or father and son may marry mother and daughter; or the father may marry the daughter and his son may marry the mother, etc. "Affinitas non parit affinitatem."
(d) Fear or force. For our purpose these are the same, since we mean by either of them an excessive disturbance of mind through fear of present or future danger of life or person. Such an excessive fear avoids marriage when the cause is external, the force unjust, and impelling to the contract. If these conditions be absent, fear does not annul the contract.
Parents may urge an unwelcome marriage upon a child. If a daughter were overwhelmed with fear of her parents' dIspleasure, it might be maintained that there was no free consent. But, on the other hand, the pressure exerted may be that of arguments and persuasions, and then the compulsion will be a moral force, not that which constitutes a true impediment to valid marriage.
The violence which avoids marriage is the carrying off of a woman under protest for the purpose of marriage.
If threats be used against a seducer to compel his promised marriage with his victim, the force is not unjust and the contract is valid.
(e) Impotence. Physical impotence or mental malady will annul the contract of matrimony; in the former case, because of impossibility of fulfilling all of its obligations; in the latter case, because no contract is made, since that implies a deliberate and intelligent consent. Physical impotence, however, will not be a bar to a valid sacrament, if it be known to the parties married.
Since the contract is for life, neither of these, if it follow after marriage, can annul what has once been validly done.
(f) Age. Under seven years of age, a pretended marriage is absolutely void ab initio. Over that age it is voidable; i.e., the party concerned, on reaching the age of legal consent or marriageable age, may annul the contract. The age at which marriage becomes valid, though unlawful -- i.e., the age of "legal consent" -- is fixed by Church law and the common law at fourteen for males, and twelve for females. But note the changes made by laws in some of the United States. (See Blackst. i. 436.)
(g) Crime. Formal adultery -- i.e., the crime committed with knowledge of an existing marriage relation -- is a bar to matrimony between the guilty parties. Two adulterers may not marry at the death of husband or wife.
Or if the lawful partner be murdered in order to marry another; if there were mutual conspiracy, it would be profaning holy things to give the Church's benediction on such a contract.
(Qu.: Suppose, in either of these cases, repentance, confession, absolution?)
(ii) Disparity of religion. This can be no impediment to a valid civil contract sanctioned by the laws of the state to which the parties belong. But the case is altered if we have before us the Christian union which the Church contemplates. An unbaptized person is incapable of entering into it. Matrimony with such a person is not the sacrament of Holy Matrimony. The Church cannot give her benediction upon the union, and the priest who should consciously repeat the words in such a case would be guilty of a profane fiction (2 Cor. vi. 14). For Christian marriage has for one of its chief goods the training of children as the children of God; which, in the case supposed, is excluded by the wilful rejection of the baptismal covenant.
But since the contract lawfully made is valid matrimony so far as it goes, though it be imperfect matrimony from the Christian point of view, two wedded unbelievers received into Christ's fold will not be remarried, but may receive the nuptial benediction.
(Qu.: On the other hand, if the state annul their contract, will the Church regard it as binding on their conscience if they be converted to the Christian faith?)
Special difficulties of conscience occur where one partner in the marriage tie is converted to the Christian faith and is baptized, while the other is not. Frequent as such cases are, the moral conditions vary extremely, and this brief manual is not the place for their discussion. Only it must be insisted on that laws of nature and the moral law of God are irreversible by any human power. And they are binding even on those who are ignorant of them, for they could know them if they would. On the other hand, ecclesiastical positive law can be suspended, the power of dispensation being in the Church which makes the law, and the exercise of that power in general being in the ordinary of the diocese where the case occurs. Such cases being frequent in the early Church, are partly ruled by S. Paul (1 Cor. vii.). The convert may not separate from the unbeliever, if no serious hindrance to the Christian life arise from the union; children in such a family have claims which the Church must recognize, etc.
(Qu. 1. Suppose that the marriage has been one within the prohibited degrees. If it be prohibited by the Divine law, it remains unlawful. If prohibited only by the positive law of the Church, it may be sanctioned by the power of dispensation.
Qu. 2. Suppose, again, the frequent case of a convert where a second civil marriage has been consummated while there is still living a previously married husband or wife, the state having annulled the first contract. There has been no sacrament of Holy Matrimony in either marriage. What does the law of nature require concerning the permanence of the marriage tie, and can the state dispense from the law of nature?
Qu. 3. Suppose that one of two so divorced parties becomes a convert to the Christian faith, is that person free to marry in the Lord if the unbeliever have fundamentally broken the marriage vow?)
Denunciation of impediments. This is an obligation on every one who has reasonable ground of suspicion of their existence, whether those impediments are "impedientia" or "dirimentia." (See the preface to the Anglican marriage service.) Not even an oath to keep the objection secret will be binding against grave injury done to the community or to a third person.
(Qu. 1. Suppose a confidential communication officially made to the physician, the lawyer, the priest, not in confession, is not this a possible exception?
Qu. 2. Suppose that grave injury will be done to the revealer of the impediment?)
One credible witness presenting an impediment, even impediens, must stop the ceremony until the case can be investigated, due security for indemnification being provided. (See the rubric in the marriage service.)
Doubtful cases. Suppose that the parties to the proposed union are in doubt respecting the existence of an impediment to their union. The doubt may concern an impediment arising (1) from Divine law or the law of nature; or, (2) from positive ecclesiastical law. The first will require moral certainty for a favourable decision, for the Church cannot supply the defect by her power of dispensation; e.g., one supposes that his partner is dead (Enoch Arden). If the fact be not so, however strong has been the probability of it, and whatever civil authority may have decided, the second union will be no Christian marriage.
But, in the second case, if doubt remain after careful inquiry, and the doubt concern the fact, not the law, the marriage cannot be celebrated. But if the same doubt arise after marriage, under the same conditions the marriage must he regarded as valid.
(Qu.: A case of special difficulty is where a marriage, invalid according to Divinely revealed law, hts been already contracted in good faith -- say, before the conversion of the party to it -- and children's claims, etc., have arisen from it, and there is probability of infamy, scandal, etc., if its nullity be publicly exposed. Shall the material sin be left? Is the case like that of restitution due, when the debtor is in good faith? In such a case may restitution be left unrequired, if it be foreseen that admonition will work grave injury, and effect no countervailing good?
A plain exception to the laxer course, if it be admitted at all, is (1) when the public good overrules the advantage of an individual; (2) when the penitent's conscience is alarmed and asks the question of moral obligation and validity of marriage. Then, if the marriage were by Divine law void ab initio, let the penitent live as if unmarried.)
Rehabilitation. This is the perfecting of Christian marriage between parties who have lived together as man and wife. Its principles are implied in what has been already written, but they may be summed up in this place as follows:
(1) If there have been no true consent to matrimony, on one side or on both, such consent may be given privately, or before confidential witnesses, and the nuptial benediction received.
(2) If clandestine marriage have been duly blessed by a priest, the form is empty of blessing, but repentance may restore it. Or if there have leen a ceremony, binding, indeed, on conscience, but celebrated by some justice of the peace, some Protestant minister, or other person who cannot give the nuptial benediction, there may be a private perfecting of the marriage in the presence of confidential witnesses, without scandal or loss of good name. (Say, the latter part of the marriage service, "I pronounce, etc.," together with the blessing.)
(3) Suppose that public scandal has already been given by the conduct of the parties; their duty requires them to make public reparation by a public ceremony.
(Qu.: Suppose that only one of the two consents to this reparation; may not the bishop give dispensation, and a private ceremony be celebrated?)
(4) Again, there may have been an impediment known to exist at the tine of marriage, so that the ceremony was null ab initio, and this impediment may have been afterwards removed. In such a case, the consent of the parties can be privately renewed; or, if the impediment be publicly known, the consent can be renewed before witnesses; that is, the marriage service which was null before will be duly celebrated.
The inseparability of man and wife is part of the law of nature (S. Matt. xix. 4-6). God has joined them so that "they are no more twain, but one flesh;" and "what God hath [so] joined, let not man put asunder." Children are the common good of man and wife; the family relation is in its very nature a permanent one; and as this requires the indissoluble union of man and wife, such a union is part of nature's law.
But only the law of Christ has restored that perfect law of nature to its due perfection.
But if this be true of the marriage contract, much rather is it true of the sacrament of Holy Matrimony in the Church, a mystical representation of the inseparable union of Christ and the Church. In the life-time of husband or wife it is impossible for the other to be married again. The ceremony is a nullity (1 Cor. vii. 10, 39). Many of the United States confound divorce a vinculo with divorce a mensa et thoro. But the distinction is fundamental in Moral Theology, and well guarded in common law also.
Divorce a vinculo is based on impedimenta dirimentia, which must have existed at the time of the pretended nuptial contract. The Western Church, at least, including the Anglican canon law, allows no such divorce for crime occurring after marriage (Blackat. i. 441).
But compare the canon of the American Church, title ii. 13 "No minister of this Church shall solemnize matrimony in any case where there is a divorced wife or husband of either party still living; but this canon shall not be held to apply to the innocent party in a divorce for the cause of adultery," etc. This may seem to be sanctioning such a marriage "by indirection."
Per contra, in this difficult question note the arguments of S. Augustine, De Adult. Conjug. (comparing with his Retract.) i. 6, 7, ad. fin., 22 ad fin.; ii. 1, etc. He seems to know no Church discipline in the matter; and naturally so, for marriages with unbelievers (as standing on a different basis), common as they were, would tend to confuse legislation. But he thinks that S. Matthew gives no warrant for remarriage.{2}
Does the innocent party cease to be spouse because of the other's guilt? Can an evil-doer thus annul a bilateral contract? If so, the guilty also is free to marry (the ordinary course in the United States). Divorce a there is not divorce a vinculo (a distinction easy to be overlooked in the ordinary quotations from primitive sources). Objection may be made (ii. 10) that this law of indissolubility is a severe one for the innocent. But incurable disease or any separation a mensa et thoro is equally so. A contentions, offensive, imperious wife is sent away; a good wife is abandoned by a drunken sot; is there freedom on both sides in such a case because of the manifest hardship? (Cp. Canon of 1603, No. 107.)
To the same effect S. Augustine argues in De Bono Conjug., c. 7. The law of God is not subject to the varying and imperfect human law.
Divorce a thoro, whether sanctioned by the state or privately made, is certainly lawful for grave causes, for a serious breach of contract by one of the two parties may release the other from its obligations. The state does not make the divorce, but sanctions it with reference to the civil rights involved. This separation is permitted, not commanded (S. Matt. v. 32). The innocent may pardon the offence, even in case of adultery, not as condoning sin, but as forgiving the penitent; for divorce is not a penalty for the innocent (Duct. Dubitant. I. iv. 8).
There are cases, however, when sound morals will forbid a separation, even in case of adultery; e.g., both parties may be equally guilty in this respect; or the innocent may have condoned the offence by subsequent cohabitation; or, after long absence, it may have been supposed that the absent partner is dead, etc.
This separation for good and sufficient reasons may be made by mutual consent, provided there be no danger of incontinence, or other grave injury.
Grave danger to body or soul -- e.g., danger of perversion or apostasy -- may even make separation become a positive duty. At the same time, it may be well to caution the inexperienced priest not to lend a ready ear to all complaints, especially of wives, but to remember that his once is that of peace-maker, not of encouraging separation and neglect of vows, where the other course is possible.
It will not be overlooked that man and woman in making the marriage contract are on a footing of absolute equality, and any breach of that contract is in itself of the same criminality, whether husband or wife be the guilty party, although the wife's sin may involve more injurious consequences, and so become a graver offence.
{1} This view is controverted. But the question will not take a practical shape when the law of the Church is obeyed.
{2} In S. Matt. xix. 9, the adultery of the wife is understood to be the ground of the putting her away, not the justification of a second marriage.