The Canon Law of Marriage

From earliest times, the church had a great deal to say about marriage and the family. 1In pagan cultures in which polygamy, arranged marriages, and oppression of women predominated, the church promoted the idea of monogamous marriage by free consent of both spouses.

It was the great upheaval of the late eleventh and twelfth centuries,

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symbolized by the Papal Revolution, that made it possible to effectuate to a substantial degree ecclesiastical policy concerning marriage and the family. Social and economic factors_________________________________________________________ of which the

Papal Revolution was both a cause and an effect______ played a crucial part: population movements, the

rise of the cities, and the rapid spread of the manorial system helped to break down earlier social formations. Political changes also had an important role: the formation of a single, separate ecclesiastical state headed by the papacy gave the clergy a kind of political power that they had never had before, and in addition the establishment of the universal celibacy of priests helped to lessen th eir personal involvement in tribal kinship relations.

As long as ecclesiastical laws on marriage and the family were largely hortatory, they did not have to be either precise or complete. After they became fully binding, they had to be both. Since all family relationships were henceforth to be based, in legal practice and not only in theory, on the sacrament of marriage, it became necessary to determine the precise nature of that sacrament. The church had long held that no formality was required to effectuate a marriage; the two parties were themselves "ministers of the sacrament of marriage." (The presence of a priest was first made obligatory in the sixteenth century; the common law marriage of English and American law is, in fact, a survival of canon law marriage as it existed before the Council of Trent.) Yet the absence of formality left open the question of exactly how and when a marriage was concluded. Some of the earlier texts had indicated that it was concluded from the moment of the exchange of promises. Others had indicated that it was not concluded until it had been consummated by sexual intercourse. Gratian argued that the traditional analogy between human marriage and the mystical marriage of Christ and the Church required that there be a physical union, a copula carnalis, before the sacrament was complete. Nevertheless, he also stressed the element of free consent, including consent to the physical union. Ultimately, the canon law distinguished among: (1) an exchange of promises to be married in the future, constituting a contract of betrothal, which could be broken in certain cases by either party and could always be dissolved by mutual consent; (2) an exchange of promises to be married in the present, constituting a contract of marriage; and (3) consent to intercourse following the marriage, constituting consummation of the marriage.

The rules concerning consent to a marriage were developed into a

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whole body of contract law. The consent must have been given with a free will. A mistake concerning the identity of the other party, or a mistake concerning some essential and distinctive quality of the other party, prevented the consent and hence nullified the marriage. Duress also nullified the m arriage by interfering with the freedom of consent. It was also ruled that a marriage could not be validly contracted under the influence of fear or fraud.

Here were the foundations not only of the modern law of marriage but also of certain basic elements of modern contract law, namely, the concept of free will and related concepts of mistake, duress, and fraud. In particular, the canonists were able to find a solution to the problem of mistake, which had greatly vexed the Roman jurists quoted in the Digest, by focusing on the question whether the mistaken party would have entered into the marriage if he or she had known the truth.

Canon law also laid down conditions necessary for the validity of a marriage, apart from consent. In the twelfth and thirteenth centuries the regulations as to age imposed by Roman law were maintained in general, but exceptions were permitted in the light of local custom, provided that the parties were able to beget children and to understand the nature of the act they were performing. Impotence at the time of marriage was a cause of nullity, however. Also a marriage between a Christian and a heathen was void, since baptism was a necessary condition for participation in any sacrament. But the church recognized the validity of a marriage between a Catholic and a heretic or a person who had been excommunicated. It also recognized the validity of a marriage between two slaves or between a freeman and a slave or serf.

Canon law in the twelfth and thirteenth centuries simplified and relaxed the earlier rules concerning marriage impediments based on consanguinity and affinity. Also penal impediments such as adultery and abduction were relaxed: the adulterers could cure their crime by marrying, the abductor could marry if he set the rapta free. However, the marriage of priests, which had been valid under the earlier canon law, was declared to be void.

Where the parties married in good faith, without knowledge of an impediment, the canonists held that the children of the marriage were legitimate and that the marriage itself was valid up to the day it was declared null; this was called a putative marriage. Moreover, a marriage could not be annulled without a legal action, and restrictions were placed on those who could bring such an action: if there were no near relatives, preference was given to persons of known prudence. But there was no statute of limitations governing an action for annulment of a marriage, and the party seeking annulment was not barred from bringing an action simply because he had brought one before and had lost.

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In addition to annulment on the ground of lack of consent or impediments, the church permitted judicial separation, called divortium, on the ground of fornication, apostasy, or grave cruelty. However, divorce in the modern sense was not permitted; the sacramental bond, once validly entered into, was considered indissoluble until the death of one of the spouses.

There were two exceptions to this: first, a nonconsummated marriage was dissolved by the entry of one of the parties into a religious order, and could in any case be dissolved by the pope; and second, under certain circumstances a convert to Christianity might divorce his or her spouse who remained heathen.

Finally, canon law offered considerable protection -- as contrasted with the folklaw of the society in which it first developed -- to the female partner in the marriage.

As a subsystem of the canon law, the church's law of marriage rested in part upon a tension between the concept of the marriage sacrament as a voluntary union of two persons in the presence of God and the concept of the marriage sacrament as a legal transaction within the legal system of the church as a corporate entity. On the one hand, there was an emphasis upon the internal disposition of the marriage partners and their personal desires and responses; on the other hand, there was an emphasis upon the institutional authority of the church and upon conformity to social custom and social policy, both ecclesiastical and secular. This tension was reflected in the questions which the ecclesiastical courts had to answer, such as whether a marriage is invalid because of mistake, fraud, or duress; whether a husband may abandon an adulterous wife; whether a wife who marries another, thinking her first husband is dead, must return to the first man when he reappears; and whether a clandestine marriage, contracted with no third party present, is valid. The tension was also reflected in many of the answers which the ecclesiastical courts gave to such questions. It came out clearly in the resolution of the question of the validity of clandestine marriages.

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will of one of the parties has changed, the judge is not to give credence to the confession of the other. Thus the strong policy of social betrothals and of external obligations was affirmed, while the s anctity of sacramental consent was also maintained. Yet the solution_________________________ resting as it does on a fiction in the

law of evidence___ though "systematic," was hardly perfect.

The systematization of family law was made possible by focusing attention upon the jurisdiction -- in the most elementary sense of the power jus dicere ("to speak law") -- of the ecclesiastical authorities over the administration of the sacrament of marriage. The whole structure of substantive family law was formed primarily in terms of "marital causes," which included validity of marriage, nullity of marriage, breach of marriage (divortium), clandestine marriage, promises of marriage, separation from bed and board, legitimacy of children, and marital property. Out of the jurisdiction over marital causes there developed a relatively integrated subsystem of legal standards, principles, concepts, and rules within the system of canon law as a whole. For example, since marriage and not blood relationship was the basis of the family, adopted children of a marriage were to have equal rights with natural children. Children born out of wedlock, however, were "illegitimate" and subject to disabilities, although they could be legitimated by subsequent marriage. While the subsystem of family law had its own structural features, it also shared the structural features of the whole system of canon law. Besides having many important elements in common with contract law, it shared with feudal law -- and with ordination -- the basic concept of the capacity voluntarily, by a sacred vow, to enter into an indissoluble, lifelong relationship whose terms were fixed by law -- in modern terminology, the power by contract to create a status.