marriage

Summary

MARRIAGE: a COVENANT by which a MAN and a WOMAN establish between themselves a PARTNERSHIP for the whole of life (canon 1057).

• ESSENTIAL PROPERTIES: (1) UNITY (FIDEI); (2) INDISSOLUBILITY (SACRAAMENTI) canon 1055; Properties are descriptive.
  

• ELEMENTS: (1) GOOD OF SPOUSES; (2) PROCREATION & EDUCATION of children (canon 1056); Elements are constitutive.
  

• Who can contract: any one not prohibited by law (canon 1058).
  

• Ratified: valid and sacramental marriage (canon 1061).
  

• Presumption: Consummated Marriage enjoys the favor of the law; contrary must be proven, canon 1060.
  

• Putative: an invalid marriage which has been celebrated in good faith by at least one of the parties ,canon 1061§3.

Assistance: 1) Remote – preaching, catechesis, 2) Proximate – personal preparation (engagement), 3) Liturgical – fruitful liturgy, 4) After Marriage – continuing help to married couples.

Permission of local ordinary is needed to assist at marriages (canon 1071): 1) of transients, 2) marriages not recognized by civil law, 3) marriage of one bound by natural obligations toward another party or children (not necessarily by virtue of marriage), 4) marriage of one who has notoriously rejected Catholic faith, 5) marriage of one bound by a censure, 6) marriage of a minor child when parents are unaware of or are opposed to it, 7) marriage entered into by proxy.
Diriment impediment: an impediment which renders a person incapable of validly contracting marriage (canon 1073).

• DISPENSING from impediments (canon 1078): Local ordinary for his subjects wherever they are. All persons present in the territory of a local authority.
  

• PUBLIC: can be proven in external forum (note, in sanctions, public means that it is generally known, not provable) canon 1073.
  

• OCCULT: can’t be proven in the external forum (note, in sanctions, occult means that it is generally not known) canon 1074.
  

• Only the supreme authority can establish invalidating impediments (canon 1074).
  

• Can dispense all ecclesiastical law impediments, except those RESERVED TO APOSTOLIC SEE.
  

• Reserved impediments (canon 1078§2): 1) Impediment arising from ORDERS; 2) Impediment arising from the PUBLIC PERPETUAL VOW of CHASTITY in a religious institute of pontifical right; 3) CRIME. Latter two can be dispensed in danger of death, not orders (canon 1080).
  

• In danger of death: Local ordinary can dispense his own subjects as well as those in his territory from: 1) Form; 2) Each and every impediment (public or occult); 3) Except presbyteral orders.
  

• When local ordinary cannot be reached, these same impediments can be dispensed by (canon 1079§2): 1) Pastor; 2) Properly delegated sacred ministers; 3) Priest or deacon who present at a 1116 marriage; 4) Confessor (for occult impediments).
  

• Omnia Parata (canon 1080).
  

• Local ordinary, and if occult case (pastor, properly delegated sacred minister, priest or deacon present at a 1115.2 marriage, (confessor).
  

• All impediments except: 1) Public perpetual vow of chastity in a religious institute of pontifical right. 2) Orders.

Diriment Impediments Specifically.

1. Age = woman under 14; man under 16; (canon 1083).
   

2. Antecedent & perpetual impotence (divine law); (canon 1084).
   

3. Prior Bond (divine law) (canon 1085).
   

4. Disparity of Cult (canon 1086).
   

5. Holy Orders (reserved) (canon 1087).
   

6. Public Perpetual vow of chastity in a religious institute (reserved) (canon 1088).
   

7. Abduction (canon 1089).
   

8. Coniugicide (reserved) (canon 1090).
   

9. Consanguinity (all direct line &2nd degree collateral are divine law) (canon 1091).
   

10. Affinity (arises from a valid marriage) (canon 1092).
    

11. Propriety (from an invalid marriage or concubinage) (canon 1093).
    

12. Adoption (canon 1094).

    Divine law impediments: impotence, prior bond, consanguinity; reserved impediments: orders, vows, crime.
    

3 ways to Nullify. 1) Invalid Consent, 2) Impediment, 3) Defect or Lack of Form.

Invalid Matrimonial Consent:

1. Incapacity (1095): lack of reason; grave lack of discretion of judgment; incapable due to causes of psychic nature.
   

2. Ignorance that marriage is permanent consortium between man and a woman ordered toward procreation by sexual cooperation (canon 1096).
   

3. Error of person (canon 1097§1).
   

4. Error of quality directly and principally intended (canon 1097§2).
   

5. Dolus (malicious fraud) in order to obtain consent concerning a quality which can seriously disturb the partnership (canon 1098).
   

6. Error of law if it determines the will (canon 1099).
   

7. Simulation (canon 1101) §2 can be total or partial: 1) Against children; 2) Against fidelity; 3) Against permanence. Simulation can be corrected, even privately (canon 1157).
   

8. Condition concerning the future (canon 1102).
   

9. Force/fear (canon 1103).
   

10. Invalid convalidation: done without a new act of the will/no renewal of consent (canon 1157).

Ordinary Form: A person competent to assist at marriage asks for and receives the consent of the parties in the presence of two witnesses (canon 1108).

• Competent to Assist (canon 1108): 1) Local Ordinary; 2) Pastor; 3) Priest or deacon delegated by local ordinary or pastor. Must be within their territory for their subjects and non-subjects. 4) Lay People can assist (canon 1112): bishop can delegate lay persons upon the favorable opinion of the episcopal conference and the permission of the Holy See.
  

• Extraordinary Form: IN DANGER OF DEATH, or when it is FORESEEN that a PERSON COMPETENT to assist at marriage cannot be present for MORE THAN A MONTH, the parties can exchange consent in the presence of two witnesses (canon 1116).
  

• The local ordinary or pastor can give a faculty to assist at marriage, but it must be to a specified person and for a specific marriage, unless it is a general delegation: then it must be to a specific person and in writing.
  

• Marriage can be celebrated where one has a DOMICILE, quasi-domicile, or MONTH LONG RESIDENCE. Transients need permission of the local ordinary. Marriages can be celebrated elsewhere with the permission of the proper ordinary or pastor.
  

• Place of marriage: in a parish church; w/the permission of the local ordinary in another church or oratory or some other suitable place (NOTE: NO SUCH PERMISSION NEEDED IN MARRIAGES BETWEEN A CATHOLIC AND A NON-BAPTIZED PERSON) canon 118§3.
  

• Note: Form is required for validity, unless the marriage takes place in an oriental rite not in union w/the Catholic Church before a sacred minister (for validity, before a sacred minister) canon 1127.
  

• THE LOCAL ORDINARY OF THE CATHOLIC PARTY HAS THE RIGHT TO DISPENSE FROM FORM IN INDIVIDUAL CASES. (Note that this is stricter than dispensing from impediments which can be done by the local ordinary of the Catholic and the local ordinary of Catholics present in their territory at the time of dispensation). 2 Catholics cannot be dispensed.
  

• The local ordinary (above) is to consult the ordinary of the place of marriage; some public form of celebration is required for validity.
  

• FIVE DIFFERENCES IN CANONICAL FORM FOR MARRIAGE FROM THE 17/CIC TO THE 83/CIC: 1) Deacons may assist at marriage (canon 1108§1), 2) Priests and deacons may be given general delegation to assist at marriage (canon 1111), 3) Laypersons can assist at marriage under certain circumstances (canon 1112), 4) A catholic who leaves the church by a formal act is not bound by canonical form (canon 1117), 5) When marrying an Eastern non-Catholic, form binds only for liceity (1127§1).

  Mixed Marriages (canon 1124): Permission of local ordinary necessary. (Needs just & reasonable cause). Requirements: 1) Catholic declares that DANGERS OF FALLING AWAY FROM the Catholic faith will be removed; 2) Catholic PROMISES TO DO ALL IN HIS/HER POWER TO BAPTIZE & REAR children in Catholic Church; 3) The NON-CATHOLIC PARTY IS INFORMED of the Catholic’s declaration and promise; 4) INSTRUCTION on the ENDS & PROPERTIES of marriage.

Effect of marriage (canon 1134): 2) PERPETUAL AND EXCLUSIVE BOND; 2) OBLIGATIONS AND RIGHTS to those things which pertain to the partnership of conjugal life.

A RATIFIED (valid, sacramental) and CONSUMMATED marriage CANNOT BE DISSOLVED BY any human power or for ANY REASON OTHER THAN DEATH.

Ways to dissolve other types of marriages: 1) Ratum non-consummatum marriages (Pope) canon 1142; 2) Pauline Privilege (the new marriage) 1143-44; 3) Petrine Privilege (Favor of Faith; Pope) outside code; 4) Baptism during separation (captivity or persecution) canon 1149; 5) Death.

Pauline Privilege (canons 1143-44): 1) 2 UNBAPTIZED persons at the time of marriage; 2) ONE CONVERTS to Christianity (or wants to); 3) A second marriage is envisioned; 4) The bishop declares the second union dissolves the first.

Petrine Privilege / Favor of the Faith. 1) 1 or 2 UNBAPTIZED persons and there is no CONVERSION; 2) Catholic wants to marry and one remains unbaptized; no sexual cooperation after baptism; 3) This is sent to the Holy See.

Convalidation: (1) Simple convalidation; (2) Radical Sanation

• Simple Convalidation. (canon 1156ff): A marriage which is invalid due to problems w/consent, impediment or form. RENEWAL OF CONSENT is required. This renewal of consent is a NEW ACT of the will (canon 1157).
  

• Radical Sanation. (canon 1161): Convaliadation without renewal OF consent with a dispensation from impediment or canonical form. BUT CONSENT MUST BE PERDURING (canon 1163). Granted by: Apostolic See or diocesan bishop in individual cases (canon 1165§§1-2). But diocesan bishop cannot grant radical sanation when the impediment is (1) orders; (2) public perpetual vow of chastity in a religious institute; (3) crime; (4) divine law impediment which has ceased to exist (ligamen).

Tribunal

1. Ordinary.
   

2. The Judicial Vicar is in charge of the entire tribunal. Be a priest at least licenciate.
   

3. Adjunct Judicial Vicars: replace the above.
   

4. Judges: can be cleric or lay
   

5. Presiding Judge in charge of a particular case, a deacon may serve as presiding judge
   

6. Judge ponens (relator) is to present the cause in the meeting of the college and write the decision can be a lay judge.
   

7. Auditors gathers testimonies, may be a judge or another person.
   

8. Assessor is a consultant who helps judge interpret the evidence on occasion.
   

9. Promoter of justice who is bound by office to safeguard the public good
   

10. Defender of the bond proposes any kind of proofs, responses, exceptions and observations to protect the bond.
    

11. Notary takes part in every process and whose signature is necessary for the validity of the acts.

Study Questions (canons 1055-1165)

• What are the two ends of marriage (canon 1055)?
  

• What are the essential properties of marriage (canon 1056)?
  

• What makes a marriage (canon 1057)?
  

• Who can contract marriage (canon 1058)?
  

• Give one consequence of the fact that marriage enjoys the favor of law (canon 1060).
  

• What is a ratum tantum marriage and a ratum et consummatum marriage? Is a ratum tantum marriage valid (canon 1061 §1)?
  

• What sacraments should a Catholic receive prior to receiving the sacrament of marriage (canon 1065 §§1 and 2)?
  

• Give a few examples of cases in which a minister is not to assist at a marriage without the permission of the local ordinary (canon 1071)?
  

• Broadly speaking, what are the three ways in which a marriage can be declared null. These are addressed in chapters III, IV, and V of this title.
  

• What is a diriment impediment (canon 1073)?
  

• Who can dispense from diriment impediments that are not reserved to the Apostolic See (canon 1078 §1)?
  

• Which impediments are reserved to the Apostolic See (canon 1078 §2)?
  

• What impediments are not dispensed? Which impediment does the code say is not dispensed (canon 1078 §3)? What other impediments are not dispensed because they are of divine law (canon 1084 §1, 1085 §1, and see also canon 1083)?
  

• Who is inhabilis of contracting marriage (canon 1073)? Who is incapax of contracting marriage (canon 1095)?
  

• What ages affect the valid celebration of marriage (canon 1083)?
  

• What effect does impotence and sterility have on the ability of a person to enter marriage (canon 1084)?
  

• Explain the impediments of consanguinity, affinity, public propriety, and adoption (canons 1091-1094).
  

• Distinguish the three types of persons who are incapable of marrying in canon 1095.
  

• Of what must a person be ignorant to render a marriage invalid (canon 1096 §1)?
  

• Of what must a person be in error to render a marriage invalid (canons 1097 §§1 and 2, and 1099)?
  

• Explain the difference between the grounds of error of quality of person and fraud (canons 1097 §2 and 1098).
  

• Explain the difference between a determining error concerning indissolubility and simulation against permanence (canons 1099 and 1101).
  

• Describe the act of the will on the part of the simulator that renders a marriage invalid using the terms: absolute, hypothetical, explicit, implicit, actual, virtual, habitual, interpretive, and/or a mere inclination (canon 1101).
  

• How does a condition placed by one of the parties affect the validity of a marriage (canon 1102)?
  

• How does force or fear render a marriage invalid (canon 1103)?
  

• What is required for the valid marriage of a Catholic according to canonical form (canon 1108 §1)?
  

• Who has the faculty to witness a marriage by office (canons 1109 and 1110)?
  

• What form is necessary for a valid marriage between non-Catholics?
  

• What effect does the defection of a Catholic from the Church by a formal act have on a Catholic's ability to marry validly (canons 1086 §1, 1117, 1124)?
  

• What is required for the local ordinary to grant a permission for mixed marriage (canon 1125)?
  

• What is the difference between the impediment of disparity of cult and the required permission for mixed marriage (canons 1086 §1 and 1124)?
  

• Who can dispense the canonical form of marriage for a Catholic party? (canon 1127)
  

• Who can dissolve a marriage between two baptized persons that is ratum et consummatum (canon 1141)?
  

• Who can dissolve a non-consummated marriage (canon 1142)?
  

• What privilege is used to dissolve a marriage of two non-baptized persons (canon 1143 ff)?
  

• What privilege is used to dissolve a marriage of two persons, one of whom is baptized and one of whom is non-baptized (see canon 1150)?
  

• What is required of the parties for the convalidation of a marriage which is publicly known to be invalid (canons 1157 and 1158 §1)?
  

• What is a radical sanation (canon 1161)?
  

• Who can grant a radical sanation (canon 1165)?
  

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Canon 1088

Can. 1088 Those who are bound by a public perpetual vow of chastity in a religious institute invalidly attempt marriage.

IC XL 79/00, 73-98: P. Pellegrino: L'impedimento del voto pubblico perpetuo di castità in un istituto religioso nel nuovo diritto matrimoniale canonico (can. 1088 CIC; can. 805 CCEO). (Article) [86 2001/2] Ius Canonici.

IE XI 1/99, 193-222: P. Etzi: L'impedimento di voto (can. 1088 CJC): sua origine e qualificazione giuridica. (Article) [83 2000/1] Ius Ecclesiale

RDC 55 2/05, 325-339: Rémy Lebrun: L'empêchement du canon 1088. (Article) [100 2008/2]

CpR LXXVIII 4/97, 361-392: J. Abbass: Dismissal from Religious Institutes of the Latin and Eastern Catholic Churches. (Article) [84 2000/2]

CpR LXXIX 1/98, 121-151: J. Abbass: Transfer to another religious institute in the Latin and Eastern Catholic Churches. (Article) [84 2000/2]

// prohibitive impediment of simple vows 1058, diriment impediment of solemn vows 1073, and SJ diriment. private vows CIC83 1192 now an issue, not simple and solemn.
Vow must be perpetual // vow. not otehr bonds of 573.2 & 712. there was thought to have it based on all three vows. Said to be divine law impediment since vow is to God. But it's juridical law that prohibits. dispensation reserved to pope. MP de episcoporum muneribus, IX 12 of 1966.

Religiosu attempts marriage gets sanction 1394; and is ipso facto expelled: 694.1,2. And also equity and charity.

Can. 1394 §1 Without prejudice to the provisions of can. 194, §1, n. 3, a cleric who attempts marriage, even if only civilly, incurs a latae sententiae suspension. If, after warning, he has not reformed and continues to give scandal, he can be progressively punished by deprivations, or even by dismissal from the clerical state.
§2 Without prejudice to the provisions of can. 694, a religious in perpetual vows who is not a cleric but who attempts marriage, even if only civilly, incurs a latae sententiae interdict.

Canon 1394

CLSN 128/01, 25-30: G. Read: Archbishop Milingo. (Document and Article) [90 2003/2] Canon Law Society Newsletter, London.

Comm XXIX l/97, 17-18: Acta Consilii: Dichiarazione. (Document) [80 1998/2] Communicationes, Rome.

IE IX 2/97, 825-826: Pontificio Consiglio per l'Interpretazione dei Testi Legislativi: Dichiarazione, 19 maggio 1997. (Document) [82 1999/2] Ius Ecclesiae, Milan.

Canons 1394-1395

AA XIII (2006), 137-155: Javier Fronza: El celibato – don, propuesta y tarea (la necesaria madurez humana y el derecho). (Article) [99 2008/1] —Anuario Argentino de Derecho Canónico, Buenos Aires.

Can. 694 §1 A member is to be considered automatically dismissed if he or she:
1° has notoriously defected from the catholic faith;
2° has contracted marriage or attempted to do so, even civilly.
§2 In these cases the major Superior with his or her council must, after collecting the evidence, without delay make a declaration of the fact, so that the dismissal is juridically established.

RfR 61 5/02, 546-551: E. McDonough: Automatic Dismissal. (Article) [90 2003/2]

CpR LXXXI 1-2/00, 67-95: D. Borek: La dimissione dei religiosi a norma del can. 694 del Codice del 1983: è una pena espiatoria "latae sententiae"? (Article) [86 2001/2]

Canon 1112

Can. 1112 §1 Where there are no priests and deacons, the diocesan Bishop can delegate lay persons to assist at marriages, if the Episcopal Conference has given its prior approval and the permission of the Holy See has been obtained.
§2 A suitable lay person is to be selected, capable of giving instruction to those who are getting married, and fitted to conduct the marriage liturgy properly.

BEF LXXXI 846/05, 285-294: J. González: Invalid Delegation of a Religious Sister to Assist at Marriages? (Consultation) [95 2006/1] Boletin Eclesiastico de Filipinas, Manila.

RR 2005, 59-60: Eileen C. Jaramillo: Married Couple Entering into Religious Life. (Opinion) [96 2006/2]

Can. 643 §1 The following are invalidly admitted to the novitiate:
1° One who has not yet completed the seventeenth year of age;
2° a spouse, while the marriage lasts;
3° one who is currently bound by a sacred bond to some institute of consecrated life, or is incorporated in some society of apostolic life, without prejudice to can. 684;
4° one who enters the institute through force, fear or deceit, or whom the Superior accepts under the same influences;
5° one who has concealed his or her incorporation in an institute of consecrated life or society of apostolic life.
§2 An institute’s own law can constitute other impediments even for the validity of admission, or attach other conditions.

CIC17 542.1; conexos 587, 642, 735.2

Clerics

Canon 1087

CLSN 112/97, 40-44: G. Read: A Comment on the Recent Circular Letter from the Congregation for Divine Worship and the Discipline of the Sacraments concerning Dispensation from Priestly Obligations and of Deacons from the Impediment of Orders. (Article) [81 1999/1]

RR 2003, 21-22: Congregation for Divine Worship and the Discipline of the Sacraments: Divorced Permanent Deacon Seeking Declaration of Nullity and Remarriage Refused Permission to Continue in Ministry. (Document) [94 2005/2]

Previously 1072 of CIC 17, repeated also for married deacons, but see anglicans who come over and eastern discipline.

CCEO:

Canon 450 - Without prejudice to prescriptions of the typicon which require more, the following cannot be validly admitted to the novitiate:

1° non-Catholics;


2° those who have been punished with canonical penalties except those mentioned in can. 1426, §1;


3° those, who are under imminent threat of a serious penalty on account of a crime of which they are legitimately accused;


4° those who are under 18 years of age, except if it is the case of a monastery which has temporary profession, in which instance 17 years of age is sufficient;


5° those who are entering the monastery induced by force, grave fear or by fraud or those, who are admitted by a superior induced in the same way;


6° spouses, during a marriage;


7° those who are held by the bond of religious profession or by another sacred bond to an institute of consecrated life, unless it is a case of lawful transfer.

Canon 497 - §1. A member shall be held dismissed from the monastery by the law itself, who:

1° has publicly rejected the Catholic faith;


2° has celebrated or attempted marriage, even only a civil one.


§2. The superior of the monastery sui iuris, having consulted the council, shall in such cases without delay, after collecting the proofs, issue a declaration on the facts so that the dismissal is juridically established, and he or she shall inform the authority to whom the monastery is immediately subject of this as soon as possible.

Canon 762 - §1. The following are impeded from receiving sacred orders:

1° a person who labors under some form of insanity or other psychic defect due to which, after consultation with experts, he is judged incapable of rightly carrying out the ministry;


2° a person who has committed the delict of apostasy, heresy or schism;


3° a person who has attempted marriage, even only a civil one, either while he was impeded from entering marriage due to an existing matrimonial bond, sacred orders or a public perpetual vow of chastity, or with a woman bound by a valid marriage or by the same type of vow;


4° a person who has committed voluntary homicide or who has procured a completed abortion and all persons who positively cooperated in either;


5° a person who has seriously and maliciously mutilated himself or another person or a person who has attempted suicide;


6° a person who has performed an act of orders which has been reserved to those who are in the order of episcopacy or presbyterate while the person either lacked that order or had been forbidden its exercise by a Canonical penalty.


7° a person who holds an office or position of administration which is forbidden to clerics and for which he must render an account until he becomes free by relinquishing the office and position of administration and has rendered an account of it;


8° a neophyte, unless he has been sufficiently proven in the judgment of the hierarch.


§2. The acts which are mentioned in 1, nn. 2-6 do not produce impediments unless they were serious and external sins perpetrated after baptism.

Canon 769 - §1. The authority who admits a candidate for sacred ordination should obtain:

1° the declaration which is mentioned in can. 761, also a certificate of the last sacred ordination or, if it is the case of the first sacred ordination, a certificate of baptism and chrismation with holy myron;


2° if the candidate is married, a certificate of marriage and the written consent of his wife;


3° a certificate of completed studies;


4° testimonial letters of the rector of the seminary or the superior of the institute of consecrated life or the presbyter in whose care the candidate was entrusted outside the seminary, of the good morals of the candidate;


5° the testimonial letters which are mentioned in can. 771, §3;


6° testimonial letters, if it is considered expedient, of other eparchial bishops or superiors of institutes of consecrated life, where the candidate resided for some time, concerning the qualities of the candidate and his freedom from all canonical impediments.


§2. These documents are to be kept in the archive of the same authority.

Canon 795 - §1. The local hierarch can dispense the Christian faithful subject to him wherever they are as well as other Christian faithful enrolled in another Church sui iuris actually present within the territorial boundaries of his eparchy from impediments of ecclesiastical law except those which follow:

1° holy orders;


2° public perpetual vows of chastity in a religious institute, unless it is a case of congregations of eparchial right;


3° conjugicide.


§2. Dispensation from these impediments is reserved to the Apostolic See; however, the patriarch can dispense from the impediment of conjugicide as well as of the one of public perpetual vow of chastity made in congregations of any juridical condition.


§3. A dispensation is never given from the impediment of consanguinity in the direct line or in the second degree of the collateral line.

Canon 804 - Persons who are in holy orders invalidly attempt marriage.

Canon 805 - Persons who are bound by a public perpetual vow of chastity in a religious institute invalidly attempt marriage.

Canon 976 - §1. One is removed from an ecclesiastical office by the law itself:

1° who has lost the clerical state;


2° who has publicly defected from the Catholic faith or from the communion of the Catholic Church;


3° a cleric who has attempted marriage even if only civilly.


§2. The removal from office referred to in 1, nn. 2 and 3 can be enforced only if it is established by the declaration of a competent authority.

Canon 1453 - §1. A cleric who lives in concubinage or gives permanent scandal by publicly sinning against chastity is to be punished with a suspension, to which, other penalties can be gradually added up to deposition, if he persists in the offense.

§2. A cleric who attempts a forbidden marriage is to be deposed.


§3. A religious who has taken a public and perpetual vow of chastity and is not in holy orders, is to be punished with an appropriate penalty if he or she committed these offenses.