Jan 1, 2016

Marriage Law Revisited — Part I

Recently, several events in the Catholic Church have triggered a renewed interest in her teachings and laws concerning marriage. The XIV Ordinary General Assembly of the Synod of Bishops on the Family along with the revisions to the procedure for the declaration of marriage nullity process (popularly so-called “annulment”) promulgated by Pope Francis in two apostolic letters issued motu proprio entitled “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus” for the Latin and Eastern Churches, respectively, have caused a plethora of articles, reports, and opinion pieces to be published. The upcoming promulgation of the 2nd edition of the Rite of Marriage will no doubt add to this interest.

A quick survey of recent commentaries on marriage in both popular and academic Catholic publications – not to mention the secular media – display dramatically varying levels of accuracy. These in turn reveal some alarming misunderstandings among many regarding the Church’s doctrines and regulations on marriage and the reasons for them. Such confusion shows that there remains a great need to recover a clarity of understanding when it comes to the Church’s teachings and laws on marriage, even and especially among Catholics, if the various marital situations that are encountered in pastoral ministry are to be addressed effectively.

While not intending to be comprehensive, the following represent a number of aspects concerning the reality of marriage in Catholic theology, canon law, and liturgy that bear revisiting so that the beauty of the Church’s teachings and laws on marriage can be better understood not as obstacles to marriage but rather as reflections and guarantors of it.

Why does the Church regulate marriage with canon law?

Unfortunately, many both inside and outside the Church misunderstand the role of canon law – and for that matter liturgical law – in the life of the Church and concerning marriage. They view law simply as regulations determined by the authority of the lawgiver – whether a collective group or an individual authority – that can be changed or manipulated at will. Often called “legal positivism,” this is not how the Church views the role of law in her life. In fact, the Catechism of the Catholic Church (CCC) explicitly reminds us that even the supreme authority in the Church cannot, for example, change liturgical laws arbitrarily (CCC 1125).

Pope St. John Paul II in promulgating the 1983 Code of Canon Law (CIC) clarifies that the Code, i.e. Church law, is not a substitute for faith, grace, charisms, and charity but rather its purpose is to create an order in the Church where these elements can flourish.

Thus, concerning marriage, the purpose of Church law is not to obstruct it or make things more difficult; rather, its purpose is to put into practice and safeguard what we believe about marriage. Whether canonical or liturgical law, the Church’s regulations on marriage seek to reflect faithfully her teachings on marriage, safeguard them, and put them into practice. At times, they are sober reminders that marriage is not just something that is a personal matter between the will of the parties, as pop culture would have us believe, but rather a profound reality with social, ecclesial, and even sacramental effects.

What is the definition of marriage?

Surprisingly, it is in the CIC that the Church gives what is arguably the most beautiful and profound definition of marriage. In fact, the CCC at the beginning of its section on matrimony (CCC 1601) simply quotes this definition from canon law.

In canon 1055, the Church teaches that “(§1) the matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized. (§2) For this reason, a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament.”

In this profound definition, we find in summary form the main aspects of what constitutes marriage naturally and what constitutes it sacramentally.

Natural Marriage and Sacramental Marriage – What’s the Difference?

This is perhaps one of the most commonly misunderstood distinctions regarding the Church’s teachings on marriage. Failing to understand this distinction has caused serious confusion in many of the discussions regarding especially the declaration of nullity process and its reform.

In a nutshell, “natural marriage” is a marriage that a man and a woman have when they enter into a marital relationship containing all the natural elements that God has put into what marriage is. Thus, even if they are not baptized Christians, they are truly a husband and a wife.

A “sacramental marriage” (i.e. “Christian marriage”) is when two baptized persons have a valid natural marriage and, because they are baptized, that marriage is now also a sacrament of the Church with all that it means to be a true sacrament.

It is important to remember that marriage is first a “natural institution,” that is, it is established by God as a good in creation, endowing it with its own proper laws (cf. CCC 1603-1605 and “Gaudium et spes” 48).” Written by God into the nature of man and woman, the common and permanent characteristics of marriage can be seen and understood by all. However, like other aspects of the natural moral law, it is not always transparent everywhere and with the same clarity due to ignorance, cultural biases, sin, etc. Nonetheless, where these natural law elements of marriage are followed, a human person, whether baptized or not, is able to enter into a true, valid marital relationship as God designed it to be. Contrarily, where any one of these natural aspects is missing, the relationship cannot be considered a valid marriage because it would lack an essential element that would have established it as a true act of marrying.

Canon 1055 lists these natural law elements – that is, elements that are essential to the nature of any marriage – to include being between one man and one woman, established by and between themselves (through consent), as a partnership for the whole of life, for the good of the spouses and the procreation and education of offspring, i.e. with the proper “ends” and “essential properties” of marriage (discussed below.) Thus, whether a person is Catholic or not, baptized or not, to have a valid marriage, these natural law elements must be present. If they are, the marriage is a valid natural marriage. If they are not, the marriage cannot be considered valid.

Through Original Sin, the world, including the natural institution of marriage, is affected by disorder (cf. CCC 1606-1608). Into this fallen world, Jesus Christ, the long-awaited Messiah whose relationship with his People is seen as a nuptial covenant (cf. CCC 1612), raises the natural institution of marriage to the dignity of a sacrament (cf. CCC 1613).

Thus, the marriage of two baptized persons, in addition to being a valid natural marriage, is now one of the seven sacraments of the Church with all that being a sacrament entails, including being an efficacious sign of Christ’s presence, a channel of the grace of the Paschal Mystery of Christ, etc. (cf. CCC 1641-1642).

Since baptism is the gateway to the sacraments and is necessary for the valid reception of the other sacraments (cf. canon 849), it is necessary that both parties in a marriage be baptized in order for their valid natural marriage to be also a sacrament of the Church. In fact, canon 1055 §2 reminds us that a valid matrimonial contract (i.e. a valid natural marriage) cannot exist between baptized persons without it also being a sacrament, thus becoming “Christian marriage” or “sacramental marriage.” When this is the case, the essential properties of marriage, namely unity and indissolubility, obtain a special firmness by reason of the sacramental graces involved (cf. canon 1056).

Valid and Invalid, Licit and Illicit Marriage – What’s the Difference?

A valid marriage is a marriage in which the act of marrying had with it all the necessary essential aspects to establish the parties as husband and wife, resulting in all the juridic effects (i.e. the rights and duties) that go with being a married person.

For those who are not Catholic, this means that all the natural law elements necessary for a valid natural marriage must be present. For Catholics and those marrying Catholics (cf. canon 11 and 1059), aside from the natural law marriage requirements, the Church asks that these follow some additional laws designed for the valid, licit, and fruitful celebration of marriage, which between the baptized, is also a sacrament of the Church (cf. canon 1066). Some of these are so important that the Church has made them requirements for validity – that is, if not followed, the man and woman walk down the aisle as single persons.

Other requirements are for liceity – that is, if not followed, though the man and woman walk down the aisle as husband and wife, the fruitfulness of the celebration and good order in the Church’s life have not been well served. Not to be taken lightly, the effects of illiceity exist to varying degrees of detriment to the life of the parties and the Church depending on the seriousness of the illiceity.

So that there is no question, elements that are required for validity are either expressly established in Church law (cf. canon 10) or are constitutive elements, such as the requirement of having a man and a woman for marriage.

What are the “ends” and the “essential properties” of marriage?

Without getting into a technical discussion of the traditional formulation of the “ends of marriage” versus the current expression of it, the updated CIC as well the CCC, following “Gaudium et spes” 48, express the “ends of marriage” – that is, what marriage is “for” – as being “ordered by its nature to the good of the spouses and (atque) the procreation and education of offspring” (canon 1055 and CCC 1601). What this means is that the nature of marriage is designed by God for these purposes.

Aside from the “ends of marriage,” the nature of marriage also reveals that there are “essential properties” built into it by God. These properties the CIC lists explicitly as “unity and indissolubility” which obtain a “special firmness” when the marriage is also a sacramental one (canon 1056) by reason of the sacramental graces involved.

From both the “ends” and the “properties” of marriage, St. Augustine and others after him famously summarized that there are certain “goods” essential to the nature of marriage, namely the bonum prolis (the “good of offspring”), the bonum fidei (the “good of exclusivity”), and the bonum sacramenti (the “good of indissolubility”), and the bonum coniugum (the “good of the spouse”).

Because the act of exchanging consent is what establishes marriage (canon 1057), where a party intentionally and actively excludes the essential ends of marriage or any one of the essential properties of marriage, in other words intentionally excluding from one’s consent the “goods” of marriage, a valid act of marrying cannot be said to have happened to have happened.

Does the Church have norms for marriage preparation?

One of the more notable topics that arose from the discussions at the XIV Ordinary General Assembly of the Synod of Bishops on the Family was the call for an improvement regarding how marriage preparation is done. What many do not realize is that the Code of Canon Law already has a beautiful vision of pastoral care and those things that must precede the celebration of marriage. According to the poignant canon 1063, pastors of souls and the ecclesiastical community – i.e., all of us – are called to offer assistance to those preparing for marriage and those who are in the matrimonial state. It is interesting to note that canon law views marriage preparation as beginning much earlier than has been popularly envisioned. Currently, marriage preparation is seen as beginning when a couple becomes engaged. Canon 1063, 1°, however, envisions a much more remote preparation for marriage with proper preaching and catechesis adapted to minors, youth, and adults using all forms of social what the CIC envisions as pastoral care for marriage both in the preparation for and the living out of this sacrament.

Benedict Nguyen

Benedict Nguyen is a canon and civil lawyer and serves as the Canonical Counsel & Theological Adviser for the Diocese of Corpus Christi (Texas). He also serves as an adjunct professor for the Avila Institute for Spiritual Formation.