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The Canonical Form of Marriage

By Theodore Davey, CP

It is impossible to understand the Catholic canon law of marriage, and especially the canonical form, without some idea of its history. Any system of law is subject to the law of history, which means, in effect, that as our understanding of a particular institution develops, the law protecting or promoting that institution must change also. In addition, laws must change in response to legitimate needs that emerge in societies at different times, in different cultures, and in different places.

The canon law of the Catholic Church has come to us from the distant past, being formulated into a system with its own terminology about the year 1140 in Northern Italy, by a legal genius known to us as Master Gratian. And it will continue into a future of which we are almost entirely ignorant. The one thing that we can be certain about is that change, sometimes radical, will be part of that future history. On the surface, to a beginner the canon law might look rigid and unyielding, but since its purpose is to help and guide a living body of human beings, it too is a living thing.

The Church acquired exclusive control over marriage in the eleventh century. That epoch saw the beginning of the crystallisation of canon law teaching on marriage and of the idea of marriage as a sacrament in the proper sense of the word, and no longer simply as "something sacred". Up till then people had let themselves be guided pragmatically by the Scriptures and the Fathers. This paper concerns what is technically known as the canonical form of marriage. One can never have an adequate interpretation of canon law without some knowledge of its history. So I shall try to describe what the canonical form of marriage is, what history lies behind today's formulation, and what are the problems posed by the form, as well as the benefits still flowing from it.

What is the canonical form of marriage?

First, what is the canonical form? According to canon 1108, para. 1, it is the requirement for validity of marriage, that when a Catholic marries another Catholic or when a Catholic marries a non-Catholic, such a marriage must be contracted in the presence of the local bishop or the local parish priest (or a priest or deacon delegated by either of them), with the assistance of two witnesses. The principle here is the territorial one, in the sense that outside his diocese or parish neither the bishop nor parish priest can validly act. The use of the words "valid" and "validity" signifies that the Catholic Church will not recognise as substantially adequate the marriages of those bound by the form if contracted outside the form. The presence of the bishop or parish priest is different from that of the two witnesses, since the former are deputed to request the parties to declare their consent and to receive it in the name of the Church, whereas the witnesses need no special appointment; anyone who is present and who sees and hears and understands what is happening can be a witness.

There would seem to be no special difficulty about the Catholic Church insisting that her members should observe the canonical form. To marry is an external, social event, in which the welfare of two individual persons is conflated with the welfare of the social group to which they belong. Any civil community regards with concern the marriages of its members, since even in our age, where the primacy of the individual is seen as paramount, and marriage as a personal individual decision, such a marriage has considerable social significance and consequences. We are witnessing in the Western world marital breakdown of such proportions that one respected doctor and researcher, Jack Dominian, has called it the greatest social pathology of the age.

It is the canon law's insistence that the canonical form must still be observed when Catholics marry persons not of their faith (or indeed of no faith at all) that is the source of tension, providing the rationale for this paper.

The problem of clandestine marriages

The Western Church always taught that the constitutive factor of marriage lay not in the blessing of the priest but in the mutual consent of the partners, and that this sufficed to form a marriage though no priest were present. However, it was natural for Christians to want their marriages blessed, and little by little the Church came to require the public religious celebration of marriage with increasing stringency and under pain of ecclesiastical penalties. But, and this is significant, even when her desires were ignored, she never questioned the validity of the union. Even when in the Greek Church in the ninth century it was declared that marriages contracted without the Church's blessing were null and void, this novelty was not accepted in the West. Throughout the High Middle Ages, attempts were made to impose a witnessed ceremony. But it was never urged that this should be done simply to have the priest's blessing and attendance. Gratian sums up the situation in his time: "Marriages which are contracted secretly are not denied to be marriages, nor is a dissolution of the union ordered, if they can be established by the confession of both parties. But they are forbidden, for should one of the parties repent of the marriage, the judge cannot accept the confession of the other person as proof of the marriage."

And there you have the problem: clandestine marriages, the plague of Church and State down to the Council of Trent. It is important to understand the exact meaning of the word "clandestine". In essence it refers to a marriage whose existence cannot be proved before the law. The marriage exists (because of the principle that consent makes the marriage); the parties know they are spouses to one another. But the Church or the State does not "know" this because it cannot verify it. The marriage is hidden or secret (clandestinum) in the face of the Church.

Such a marriage was possible in the Catholic Church because her authorities refused for centuries to require as a condition for the validity of the marital consent that its expression by the parties be witnessed. As Mackin points out in his book What is Marriage? (1982), clandestine marriages took place because men and women - and boys and girls - took advantage of this refusal and exchanged consent wholly outside the presence of third parties, or in the presence of third parties sworn never to verify their witness of the exchange. In Western Christian history, men and women did this for a variety of reasons. But the principal reason was their desire to marry partners of their own choice instead of partners chosen for them by their families.

Marriages made in secret with no witnesses who could attest them were a source of the greatest evil for the social fabric. It happened regularly that a man who had pledged himself in marriage secretly quickly changed his mind, and afterwards made things worse by a new marriage publicly celebrated, this time with all due solemnity. The difficulty was now insurmountable because the true wife (and children) could do nothing. If her unsupported word were accepted that she had been married to the man who had now proceeded to a second, public, marriage, then all future marriages would have been put at risk, since any unscrupulous men or women could perjure themselves to the effect that the bridegroom was her husband.

So in the years before the Council of Trent it can be said that people should marry in the canonical form for lawfulness, but not for validity. And the meaning of canonical form was variously understood before Trent. For instance, in some areas it was customary to celebrate a wedding with a considerable gathering of friends and acquaintances, without ecclesiastical ceremony. This was held to be a marriage "in the face of the Church", "Church" being understood as an assembly of the faithful. In such circumstances, the canonists held that a marriage carried out with the usual celebrations could rightly be described as having been solemnised before the Church.

The Council of Trent

By the time the Council of Trent began its deliberations, the Reformers had introduced their own terminology. A public marriage was one undertaken with the consent of the parents, otherwise it was clandestine and invalid. The principal reason for this was the Church's sense of limitation in her own authority. To marry is one of the most fundamental rights of a man and a woman. Not only must any reason for limiting the exercise of this right be a most serious one, but if it were agreed to set conditions to the right to marry, the conditions could be laid down effectively. The Church acknowledged that no one but the spouses can create the marriage, and this by their own acts of consent. Should she, could she, invent a new condition for the validity of the consent, one that clearly did not come from divine revelation, not from tradition, and certainly not from canonical precedent? Some of the bishops held that voiding the efficacy of otherwise sufficient marital consent as a punishment for violating the law would be a disproportionate sanction. Decreeing persons to be legally incapable of creating a marriage only because they refused to have a positively imposed form of witness also seemed disproportionate to some of the Council members, since all declarations of legal incapacity had until that time been grounded either in positive divine law (for instance, the incapacity of a married man to marry bigamously) or in natural law (the incapacity of an impotent man for marrying). Some of the ablest theologians at Trent held that, where the sacraments were concerned, the conditions for validity had been fixed by Christ himself, and that the Church could not alter them. If all that God requires for marriage is that two people, who are free to do so, express consent, then how could the Church nullify that consent because of the absence of procedural points of law?

The decree Tametsi introduced "canonical form"

Trent finally took action about clandestine marriage in November 1563 in the twenty-fourth and final session of the Council. What were approved in this final session were a doctrinal statement, twelve canons and the decree Tametsi that tried to put an end to unwitnessed marriages. What this decree said was:

1 Clandestine marriages created by the consent of the parties are true and ratified (sacramental) marriages as long as the Church does not invalidate them.

2 The Church has always condemned such marriages. But now it is evident that condemnation and prohibition have not overcome disobedience, and grave harm has come from such clandestinity.

3 The decree of the Fourth Lateran Council that the banns of marriage be published on three consecutive days of public worship in the parish of the engaged is renewed; and if no legitimate impediment is found, the marriage is to take place, with the man and woman declaring their consent before the parish priest.

4 The Council declares and makes incapable of contracting marriage any persons who attempt to do so without having as witnesses the parish priest of the place or some priest delegated by him or by the bishop, along with two or three witnesses. The Council declares marriages attempted without these witnesses to be null and void.

This idea of the parish priest of the parties and two witnesses seems originally to have been the idea of the French king, who sent envoys to the Council requesting this "form". The involvement of the parish priest did not imply that the priest had a ministerial function in marriage, but was simply to stress the need for adequate registration of marriages, since in many districts the local priest would be the only literate person, and therefore the only one able to discharge the office of registrar.

Sixty of the ablest bishops opposed the decree to the end, for the reasons I have indicated about the limitation on the power of the Church in this matter, although the Pope had expressed himself pleased with it. And some handed in a written record of their disagreement, to be preserved in the archives for posterity to see how strongly they felt.

All baptised persons, whether Catholic or non-Catholic, came within the scope of the Tametsi law. However, despite the cogency of its reasoning, the Council of Trent in practice did not make the juridical form absolutely binding. The decree was not of obligation unless it was promulgated in the parish of the parties, and even then its effect was not produced until thirty days after its promulgation, and it was not promulgated in countries predominantly non-Catholic, for instance in England. Two hundred years later Pope Benedict XIV relaxed the Tridentine law by exempting non-Catholics from the canonical form when they married among themselves or married Catholics. In fact, it was only in August 1907 when the decree Ne temere made its appearance, becoming effective in 1908, that the canonical form became universally effective for Catholics.

Should canonical form be abolished?

So it will be appreciated that the canonical form has had a very chequered history. When it became known that the revision of the code of canon law was under way, some canon lawyers began to argue in favour of the abolition of canonical form. This was not to say that they wanted to return to the confusion of pre-Tridentine days, however, with deserted wives and children, the main social evil Trent set out to remedy. They argued that one of the great objections to clandestine marriages is the fact that there is no objective proof, no records. And it was from this situation that all the evils had arisen. But this argument does not have the force it once had. Civil law in all countries today requires the registering of marriages. Then the validity of the matrimonial covenant would cease to depend on a technical formality. It would prevent some Catholics from using the canonical form or absence of it as a device for trial marriage. If the marriage turns out well, they have it convalidated by the priest. If it turns out badly, they get a civil divorce and a declaration of freedom to marry again in the Church, which gives scandal to well-intentioned Catholics who have obeyed the marriage laws of the Church. It is hardly conducive to people's pastoral good when those obedient to the law have to suffer which those who disobey the law derive notable benefit from it.

As well, with the abolition of canonical form the validity of a marriage would be judged much more on the basis of true facts: that is, whether or not the couple have come together and are living together with marital affection. So the validity of a marriage would not depend strictly on the momentary disposition of the parties at the time of the exchange of the promises. Another point in favour of abolition is that those who have not married in church would not feel themselves to be cut off from the Church, nor would the community regard them as such.

The final argument in favour of abolition is the ecumenical one: the existing law seems to favour intolerance - non-Catholics are compelled to contract marriage in a Catholic setting, according to a Catholic legal form (unless a dispensation has been obtained).

Disadvantages of abolition

On the other hand, the abolition of the canonical form would have disadvantages. If the couple did not wish for an ecclesiastical ceremony, the Church would have little opportunity for pastoral contact before the marriage, and would have no possibility of investigating if the conditions for a lifelong marriage are present.

The Church would have no official record of all the marriages of Catholics, only of those which were celebrated in the canonical form. As well, there could be widespread uncertainty about the validity of the marriages of those Catholics who have not opted for a religious ceremony in the Catholic Church.

But the biggest argument in favour of retaining the canonical form seems to be the following: the liturgical form of the ceremony, and therefore its celebration in and before the Catholic Church, remains the most proper one, and this is especially true because of the doctrine of "marrying in Christ", not primarily because the canonical form alone can give sufficient guarantee of preparation for marriage, and for ecclesiastical registration of marriage, although these are important and not to be underrated. It is rather because we may not separate the liturgical celebration from the canonical form, as in practice they are not separate: they coincide. For Catholics, a marriage outside the Church is not the normal expression of the action which they are in fact performing. It can scarcely be held nowadays that the change made from a profane ceremony, or none at all, to an ecclesial one was simply a question about the Church's juridical power. It was rather the spontaneous recognition that a church was the natural place for celebrating a Christian wedding. The pastoral, canonical and administrative considerations which are involved are indeed of importance, but they are secondary.

The debate continues

Looking at these arguments it is difficult for a canon lawyer to say which side is the stronger, those who favour the retention of the canonical form when Catholics marry among themselves or marry non-Catholics, or those who would abolish it. In practice the trend presently seems to be to retain the form, but with modifications. Canon law says that: "If there are grave difficulties in the way of observing the canonical form, the local bishop of the Catholic party has the right to dispense from it in individual cases", although when that happens some public form of celebration is required. And it is up to the episcopal conference of a country to establish norms to make sure dispensations are given in a uniform manner [canon 1127]. As Orsy remarks, "There are strong arguments for further relaxations of the law of the canonical form. Whether or not such a process of relaxation should lead to the law's eventual abolition, could well remain a disputed question; not all the evidence is in as yet." One of the principles governing the code of canon law is that pastoral care should be its hallmark. Perhaps whatever can be reasonably provided by pastoral care should not be the object of canonical legislation.