Rev. Augustine Mendonca
One of the areas of ecclesiastical legislation which has undergone pastorally and juridically meaningful changes is the law on marriage contained in the Code of Canon Law of 1983. The significance of these changes consists in the fact that they concern the most involved pastoral ministries in the Church today.
The fundamental doctrinal principles and the inspiration underlying the revision of matrimonial legislation are drawn from the teaching of Vatican II. The pastoral constitution on the Church in the Modern World, Gaudium et Spes, of December 7, 1965, 1forms the basic source of renewal in marriage law. This conciliar document, after elucidating magnificently the dignity of the human person and the redemptive role of the human person in the world, presents, in its nos, 48-50, certain key points of Church doctrine on the nature of marriage.2
The teaching or the Second Vatican Council on marriage is not something that the Church suddenly discovered out of the blue.3 At the theological level, the Church has always upheld the moral duty of the spouses to cooperate in each other’s spiritual and personal growth; it has constantly stressed the fact that conjugal union is not limited to the sexual sphere.4
It has also insisted on the spiritual value of marriage as an act of love and as a sacrament. As U. Navarrete points out, the Church’s theological, ethical, and juridical doctrine of marriage evolved mainly within the framework of the three conceptual and partially coinciding structures: the three blessings (the tria bona: bonum prolis, fidei and sacramenti) , its inner structure (the essential properties of unity and indissolubility), and its intrinsic finality (the essential properties of unity and indissolubility), and its intrinsic finality (the two hierarchically ordered ends of procreation and mutual support)5 the conceptual framework of the tria bona seems to have been best suited for the development of the pastoral doctrine on marriage as other marital values, such as conjugal companionship, conjugal friendship, mutual help, and remedy for weakness, can be subsumed into it.6
1. GS n. 48-52
2. AAS 58 (1966) 1067-1-75
3. Leo XIII, Arcanum divine sapientiae in AAS 12 (1879-1880) 385-402, Pius XI, Casti connubi in AAS 22 (1930) 539-592
4. See Casti connubii, pp. 548-550
5. See U. Navarrete, Structura iuridica matrimonii secundum Concilium Vaticanum II: momentum Iuridica amoris coniugalis, Roma, PUG, 1968, p. 17
6. Ibid, pp. 19-20
The juridical formulation of the doctrine on the tria bona took on a specific pattern of development. The canonist began to interpret the presence or absence of the bona as a measure of the validity of marriage. The bona became identified with the essence of marriage quoad obligations, and in order to enter marriage validly the spouses were juridically obliged to include them in their marital consent.
Canonically, the juridical consent of marriage came to be distinguished between the essential, the integrating, and the accidental elements of the bona, and the conclusion derived there from was: “The essential good is understood as that minimum which the contracting parties must intend, even implicitly, to elicit matrimonial consent sufficient for the establishment of marriage.” At the juridical level, therefore, the object of consent, and consequently, the juridical essence of marriage, was finally reduced to the simple element of intercourse insofar as it is ordered to children in a relationship characterized by perpetuity and exclusivity.
When we compare these theological and canonical developments in light of the conciliar teaching on marriage, we can state that Vatican II has provided, both to doctrine and to jurisprudence, the inspiration and impetus to rethink the juridical problems of marriage, especially by spearheading a deeper investigation into the meaning of conjugal society (matrimonium in facto esse). This has proved to be the theological foundation for the juridical determination of elements which are essential to marriage at the very moment in which the conjugal bond (vinculum coniugale) is established. A brief and systematic analysis of relevant canons on marriage shows that the canonical legislator has provided to the object of matrimonial consent the widest possible scope on which canonical jurisprudence can build its future development.
The new Code does not specify directly the essence of marriage. Canon 1134 stipulates that a valid matrimonial consent gives rise to a perpetual and exclusive bond between the spouses and this bond, between two Christians, is sanctified by a special sacrament. Canon 1135 speaks of the “equal duty and right to those things which pertain to the partnership of conjugal life”. These two canons do not specify the elements which are essential t conjugal partnership.
Canon 1095, 2-3, refers to the essential rights and duties and essential obligations, but does not indicate what these rights/duties/obligations are. Canon 1056 mentions two essential properties of marriage. Canon 1101, $2, which presents various hypotheses of simulated consent, alludes to essential elements and properties exclusion of which by a positive act of the will by either or both parties invalidates marriage. Moreover, C. 1099 implies that error concerning the essential properties (unity and indissolubility) or sacramental dignity of matrimony causes its nullity if it determines the will.
From these canons we can conclude that the essence of marriage is not limited to the properties, but it comprehends also the essential elements toward which the sposes have mutual rights and obligations. Therefore, we can legitimately say that tose rights//duties/obligations are essential which are related either to “properties” or to “essential elements” of marriage. Again, the “essential elements” remain undetermined in the Code. However, the Legislator has provided the minimum required for valid matrimonial consent (i.e., the content or object of consent) from which doctrine and jurisprudence can gradually identify the essential elements of matrimony.
As indicated earlier, the content or object of consent specified in the 1917 Code was the “perpetual and exclusive right to the body for acts per se apt for the generation of offspring” (c. 1081, $2). In the new Code, the Legislator reaffirms the basic juridical principle that consent of the parties is the intrinsic efficient cause of marriage (c. 1057, $1) and declares that the constitution of marriage, arising from the will of the parties through an irrevocable covenant of mutual self-giving and accepting, is the object of consent (c. 1057. $2).
Two sexually distinct persons themselves are the material object of the conjugal covenant, while the formal object is the constitution of marriage. The meaning and the content of this formal object is to be determined through an analysis of c. 1055. $ 1.
Canon 1055, $ 1 of the new Code describes marriage only incidentally, but properly, while attempting to determine the object of the conjugal covenant which constitutes between a man and a woman a partnership of the whole of life. In this canon, we have at the same time both the object of conjugal covenant and the definition of marriage itself. According to the mind of the Legislator, therefore, the contractants must look in their marital consent the special juridical contract defined by the norms of canons discussed above.
Even though the Legislator has not directly and formally declared all he essential elements (essence) of marriage, he has done so at least indirectly and substantially in those canons. In other words, cc. 1055, $ 1; 1056; 1095; 1099; 1101,$ 2; 1134; 1135 and 1136 seem to provide the minimum from which doctrine and jurisprudence can draw relevant juridical principles on the essence or essential rights and obligations of marriage.
In light of these canons and of the doctrine presented in Gaudium et Spes, we can say that, at this point in time, the essential rights and obligations of marriage are to be related to the four bona, namely bonum coniugum, bonum prolis, bonum fidei, and bonum sacramenti, and the essential properties of unity and indissolubility as well as the sacramental dignity are to be examined within the context of these bona.
In this study, therefore, I propose to look into the essence of marriage from a theological and juridical point of view, in order to identify the essential components of marriage which specifically have juridical value. The themes and concepts will be derived directly from the conciliar document Gaudium et Spes and these will be examined within the context of the new legislation and emerging jurisprudence. The essence of marriage will be studies, therefore, under the following themes:
– Intima communitas vitae conjugalis (sec. 1, “The Intimate Community of Conjugal Life);
– Amor conjugalis (sect. 2, “Conjugal Love”);
– Foedus coniugale (sect.3, “The Conjugal Covenant”);
– Bonum coniugum (sect. 4, “The Good of the spouse”);
– Bonum prolis (sect. 5, “ The Good of the offspring”);
– Bonum fidei (sect. 6, “ The Good of the Fidelity (Unity) “);
– Bonum sacramenti (sect. 7, “The Good of the Sacrament (Indissolubility)”);
– Dingnitas matrimonii (sect.8, “Sacramental Dignity”);
– Bonum societatis (sect. 9, “The Good of Society”);
– The essential attributes of “exclusivity” and “perpetuity” common to all essential rights and obligations flowing from the essence of the conjugal bond (sect. 10, “The Exclusivity and Perpetuity of the consortium”).
1- THE INTIMATE COMMUNITY OF CONJUGAL LIFE
The principal purpose of Vatican II in presenting the pastoral constitution Gaudium et Spes was to engage in a dialogue with the world in a language intelligible to human-kind about the dignity of the human person and the role of the human person in the world as well as to present to the world those things which call forth special attention to marriage and family. In view of these deeply pastoral concerns, the Council Fathers decided to describe marriage in basic human terms as “an intimate community o conjugal life and love.” This expression has profound biblical connotation as the union of spouses is described in the Bible in terms of “two become one flesh” (Gn 2: 18), a natural institution ordered to partnership and procreation.
The underlying concept expresses the equality between partners and a permanent union principally of minds and hearts of the spouses. In the context of the New Testament, the complementary or partnership aspect of conjugal life linked intrinsically to permanency is seen as the Creator’s will “at the beginning.” This biblical notion, reaffirmed in Gaudium et Spes, was intended by the Legislator to be incorporated into the new Code.
On October 20, 1977, during the 5th general session of the Synod of Bishops, it was decided that the notion of marriage as envisaged in Gaudium et Spes must be presented in the new Code in a descriptive and oblique way and it must concern matrimonium in fieri and its essential elements only. The Synod Fathers also agreed that the term coniunctio vita or other expressions, e.g., consortium vitae, communio vitae, must be incorporated into the notion of marriage as long as terms giving rise to erroneous interpretations in jurisprudence are avoided. There was also majority support to accord juridical value to the concept underlying coniunctio vitae in so far as if concerns the validity of consent (matrimonium in fieri ) and not the validity of matrimonium in facto esse.
The decision was made because of the discussion that had already emerged concerning the description of marriage proposed by the preparatory Commission in 1966 which read: “(Marriage is) an intimate union (coniunctio) of the whole of life between a man and a woman by its nature ordered toward the good of the spouses and the procreation and education of offspring.” The intention of the preparatory Commission was to incorporate onto law the conciliar concept of marriage and it did so by adopting the juridical term coniunctio from Roman law instead of communitas or communio of Gaudium et Spes.
The expression of “conjugal love” was dropped right from this stage of canonical development of the juridical notion of marriage. On February 21, 1977, the coetus working on matrimonial legislation came up with the following formula: “Marriage is an intimate union (coniunctio) of the whole of life between a man and a woman by its nature ordered toward the good of the spouses and the procreation and education of offspring.” The term coniunctio vitae remained even though the end of the union saw a substantial change. The 1980 Schema of the Code, however, contained a modified version of the same and it read:
The matrimonial covenant, by which a man and woman establish between themselves a communion (communion) of the whole of life, is by its nature ordered toward the good of the spouses and procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.
In this canon, four elements are introduces; first, instead of matrimonium of the 1977 Schema, “matrimonial covenant” is used: second, in the place of coniunctio, communion is introduced; third, ordination of the marriage toward the good of spouses is affirmed, and fourth, the sacramentality of marriage is mentioned.
During the ensuing deliberations on this matter, the coetus, came to the conclusion that the term consortium was better suited to express the notion of marriage. Therefore, the Pontifical Commission for the Revision of the Code of Canon Law introduced it in the 1981 Relatio in order to remove the ambiguity surrounding the expression communio and also to express the notion of marriage in juridically more precise term because of its traditional roots:
In order to avoid the ambiguity, which might possibly be caused by the word “communio” used in the Schema not always with the same meaning, it seems preferable to use the word “consortium” which expresses better the matrimonial life and has stronger support in juridical tradition.
In view of this reason, the Code Commission changed totius vitae communio to totius vitae consortium which has been retained in c. 1055. $1 of the new Code. The term consortium as well as communion and consuetude were used in the 1917 Code to signify only cohabitation. In 1977 only one consultor argued that consortium was best suited to designate the reality of marriage. By the time consortium was incorporated into the final draft, the earlier terms coniunction and communion were eliminated from the draft formulations of c. 1055, $1.
Even though the expression consortium totius vitae is not found in Gaudium et Spes, it has deep roots in theologico-juridical tradition. In this regard D. Fellhauer states that consortium is a concept which underlies the “traditional” definition of Roman law and it could be regarded as the equivalent of “Conjugal society” or “marital association,” an association which was not adequately described by carnal copula, although it was certainly ordered to it and ultimately specified by it. It included the traditional bona and other “more personal elements” which were not juridically identified.
By including this concept in c. 1055, $1, the Legislator accords it juridical significance as it does with marriage itself. The question that now remains to be answered is: What does consortium totius vitae really mean?
As indicated earlier, in the initial stages of the development of c. 1055, $1, the Code Commission considered coniunctio, communion, and consortium as identical and apt to express the notion of marriage. The Commission did not seem to have examined the differences underlying these terms.
In his recent study of these terms, J. Huber concludes that the term coniunctio denotes union of the bodies and mind (a personal fusion), that is matrimonium consummatum while communio, a term used in the new Code to describe theological relations, includes the totality of rights and duties of marriage, common living, communion of minds, excluding communion of bodies. This term could have been used in the description of marriage to express the totality of all marital rights and duties. Then its use in other canons would have given to greater confusion. Whereas, consortium denotes communion of goods, of life, and of fortune to be maintained perpetually. The aspect of indissolubility and perpetuity of the essential rights and obligations of marriage would be included in this concept. In all its aspects, therefore, Huber says that the term consortium is best suited to describe marital state juridically.
Neither Roman Law nor Canon Law have defined marital consortium. This reflects the legal wisdom which holds that law generally does not define because definition of fundamental concepts tends to freeze their meaning and deny them flexibility. Since marriage is a natural, human reality, the meaning and elements of consortium must be understood and interpreted according to the culture and customs of the people. Therefore, we must say that the concept of consortium remains open-ended so that doctrine and jurisprudence will have ample scope to gradually identify its constitutive elements.
Navarrete expresses accurately the mind of the Code Commission when he says that the concept underlying the term consortium stands for marriage itself or for the totality of the rights and obligations of marriage. Taken in this total sense, as in c. 1055, $1, consortium would include two things: a) communion of bodies, that is, the exclusive and perpetual right over the body for acts which are naturally apt for the generation of offspring with all rights and duties related to it; b) communion of souls (of persons), that is, the right to mutuum adiutorium understood in its more profound biblical sense.
In this communion of souls (persons), the union of affective, psychological, and spiritual dimensions of the spouses involved takes place. This complementary fusion or integration of spouses is what Navarrete calles mutuum audiutorium, understood in the biblical sense. This interpersonal integration or union at the core of their being is communion vitae.
On the juridical plane, therefore, consortium vitae stands for matrimonium in facto esse (marital community) or for the sum total of all the rights and obligations, of marriage. Whereas, communion understood only in the sense explained above constitutes an essential right and obligation, distinct from each and from the sum total of all other rights and obligations essential to matrimonial institution. In other words, the right to “interpersonal relationship” (communio vitae) is the first essential element of consortium. Jurisprudence seems to have confirmed this principle.
In his oft-cited decision of February 25, 1969, L. Anne points out that the formulations of Vatican II, this is, intima communitas vitae et amoris coniugalis, looks not to the mere fact of establishing a community of life, but be the right and obligation to it which has as its most specific element a most intimate union of persons which confirms that marriage, in its foundation, is a most personal relationship.
The conciliar formula describing marriage has the adjective coniugalis qualifying vitae and amoris: intima communitas vitae et amoris coniugalis. this was intended to make more specific the intimate union of spouses because an intimate union can be present in other interpersonal relationships as well. The new Code does not use this adjective to qualify consortium except in c. 1098. Commenting on this canon Huber says that the term consortium is used only in matrimonial legislation and the adjective coniugalis in c. 1098 seems superfluous.
This argument, in my opinion, is in agreement with the principles of interpretation given in c. 17. In light of the conciliar formula, the adjective coniugalis has a very specific relationship (communio vitae) implied in consortium is specifically “conjugal”, that is, “an intimate relationship between two sexually distinct persons as spouses. “Therefore, communio vitae understood in this sense is a specific and essential element of consortium and the spouses have a right to it. In a brief but systematic study of the evolution of c. 1101, $2, of the new Code, G. Sheehy concludes that the “right to communion of life” is an essential element of marriage and exclusion of this right by a positive act of the will invalidates marriage.
If “communion of life” is understood as an element of consortium totius vitae, that is an “intimate interpersonal relationship” or, in Anne’s words, “most intimate union of two sexually distinct persons”, Sheehy is right. As Navarrete has pointed out, the intention of the Code Commission was to consider communio vitae as one of several essential elements of marriage and not as the totality of essential rights.
In this case, a tribunal may adjudicate a marriage case proposed on grounds of partial simulation, that is, exclusion of the right to “communion of life.” But, for reasons explained above, we cannot say that consortium totius vitae is an element of marriage distinct from other elements. The concept represents the totality of rights and obligations of marriage. In other words, in the new Code it is the juridical equivalent of marriage itself and its exclusion by a positive act of the will would amount to total simulation.
In brief, the theological description of marriage is beautifully expressed in Gaudium et Spes as an “intimate community of conjugal life and love”, and it is juridically presented in the new Code as a “partnership of the whole of life.” In juridical language it stands for all rights and obligations essential to matrimonial institution (matrimonium in facto esse). Whereas, “communion of life” understood in the profound biblical sense, that is, “an intimate relationship between two sexually distinct persons”, is an essential element of the consortium totius vitae.
2 – CONJUGAL LOVE
Possibly, the most characteristic note of the doctrinal exposition on marriage contained in Gaudium et Spes is the importance attributed to conjugal love which is perceived as value in itself, a value that is fully human, personal and total (no. 49). True and genuine conjugal love is an expression of the total self-gift of one to the other. It pervades the whole of life of the spouses, and is not one-sidedly restricted to conjugal acts. The conjugal act, indeed, is the culminating expression of that love and of its continual growth. The Council taught that marriage and married love are essentially and intrinsically ordered to the raising up of new life (no. 50). Because of its all pervading influence in married life, the Council described marriage itself in terms of “conjugal love” as specifying element (no. 48).
The Church’s emphasis on the importance of conjugal love in married life has always been constant and unwavering. In his encyclical Arcanum of February 10, 1880, Leo XIII placed conjugal love among the categories of rights and obligations of marriage. Pius XI, in his encyclical Casti connubii of December 31, 1930, gave primacy to love in marriage – not juridically as an end of marriage, but a primacy of honour. The goal of conjugal love and action flowing from it is to bring spouses toward the fulfillment of the potential in them that is interior and most characteristically human.
Pius XI, however, was careful not to accord conjugal love the status of the primary end of marriage even though one may be strongly inclined to read between lines that such love pertains to the very essence of marriage. In his allocution of October 29, 1951 to the Italian Catholic Union of Midwives, Pius XII acknowledged conjugal love as one of the essential secondary ends of marriage. Paul VI, in his encyclical Humanae Vitae of the July 25, 1968, described conjugal love as fully human, total and exclusive, and fecund.
The centrality of conjugal love in marriage life was emphasized in this magisterial teaching. In his apostolic exhortation of November 22, 1981, John Paul II spoke of marriage and family forming a communion of persons, serving life, participation in the formation of society and sharing in the life of the Church. He expressed the role of conjugal love in marriage as follows:
(….) without love the family is not a community of persons, in the same way, without love the family cannot live, grow and perfect itself as a community of persons (….) The love between husband and wife and, in a derivatory and broader way, the love between members of the same family – between parents and children, brothers and sisters and relatives and members of the household – is given life and sustenance by an increasing inner dynamism leading the family to even deeper and more intense community, which is the foundation and soul of the community of marriage and the family.
John Paul II goes on to say that the communion of marriage is established by the communion of the spouses. There is no doubt, therefore, that conjugal love exalted so highly in Gaudium et Spes holds a central place in marriage. But this important element of a conjugal life has not been recognized as an essential juridical element of marriage.
According to the approach or methodology used in the application of law, for an element to have any juridical significance it must be objectively demonstrable. In such an approach, “conjugal love” which is something intimate and changing did not seem to provide a reliable and stable test of its presence or absence in marriage. Nevertheless, in his affirmative decision of October 30, 1970, V. Fagiolo affirmed “conjugal love” as an essential element of the communion of life.
He specifically stated that where conjugal love is lacking either consent is not free, or it is not internal, or it excludes or limits the object which must be integral, to have a valid marriage. Conjugal love is identical to conjugal self-giving which is same as consent. In brief, conjugal love has a definite juridical significance not only in regard to the very essence of marriage. Here, I believe, theology and jurisprudence (law) are best expressed. Nevertheless, this does not seem to be the definitive answer to the controversy surrounding the juridical recognition of conjugal love in marriage.
No one will probably question the fact that “love” is an important element in marriage. But whether love is that element without which a marital union cannot begin to be is debatable. In certain cultures, for example, where the system of arranged marriages is a fact of life, marital unions often begin without love but with a potential or aptitude for it. Can marriages contracted in such cultures be regarded as non-existent or non-sacramental merely because there was no love at the beginning? P. Palmer expresses this question more pointedly when he says:
My quarrel is only with the wording of the decision which speaks of the “lack of conjugal love” instead of the more precise “refusal to love.” There have been and there will be many cultures in which engaged couples meet for the first time on the day of the marriage. This does not prevent them from pledging their love and undivided affection, even though love might be lacking at the time the covenant is entered.
Since the decision caram Fagiolo was appealed and judged subsequently coram Palazzini. The discussion on the issue seems to have picked up steam. In his sentence, P. Palazzini admitted the integrative value of conjugal love in bonum fidei, but denied it any essential juridical value. Palazzini’s arguments were based on Navarrete’s view according to which conjugal love is an “a juridical” or “metajuridical” element with no juridical importance. According to Navarrete, conjugal love is only an “integrative” and not a “constitutive” component of marriage.
In his address to the officials of the Rota, February 9, 1976, Paul VI made his personal intervention in this discussion and said that conjugal love is a force of the psychological order and, therefore, “conjugal love does not enter the purview of law.
Consequently he stated:
We must, therefore, reject without qualification the idea that if a subjective element (conjugal love especially) is lacking in a marriage, the marriage ceases to exist as a juridical reality which originated in a consent once and for all efficacious. No, the juridical reality continues to exist in complete independence of love. It remains even though love may have totally disappeared.
But the juridical controversy seems to be far from being closed at this time. In view of the change introduced in c. 1101, &1, of the new Code, conjugal love can still be considered as an essential element of marriage to which spouses have mutual right/obligation. Several authors have argued in favour of considering conjugal love as an essential element of “consortium totius vitae”. For example, Z. Grocholewski says that the element of amor benevolentiae can assume essential juridical importance to the extent in comes under the dominion of the will. In view of the nature of marriage as communio vitae, conjugal love is inseparably joined to marriage and should be accorded juridical importance in the same manner as the ordination of offspring and unity and indissolubility. Thus when this aspect of love (more accurately: the right to that essential nucleus of love) is excluded from matrimonial consent, the marriage itself should be declared null.
Similarly, G. Versaldi, after distinguishing rational, human love (equivalent to amor benevolentiae ) from genital (erotic) and affective love, concludes that the former, insofar as it expresses the will to enter into the “communion of life” with another person, always has juridical importance, because it has an essential role to play in presenting the object of consent. Without this love, Versaldi says, there cannot be a valid marriage. L. Wrenn, who prefers to define love as “an affective tendency toward another person which is dialogical in nature and which involves union with the other,” offers five reasons in favour of recognizing the juridical significance of conjugal love in marriage. He argues that the “essence of the bonum coniugum consists in the ius ad amorem.
Matrimonial consent is “essentially an act of love” through which the spouses “mutually give and accept each other” (c. 1057 $2) which, Wrenn maintains, is precisely what love is.
In light of the magisterial and conciliar teaching on marriage, conjugal love seems to acquire juridical relevance within the context of bonum coniugum. From the perspective of law, therefore, it is not any love, but love which is specifically ordered to the good of spouses and of offspring as an expressionof the “consortium totius vitae” is considered. This gives conjugal love an institutional or juridical character taking it out of the sphere of merely erotica or affective attraction and giving it stability as an element of bonum coniugum. If we consider conjugal love as an element of bonum coniugum, we must also admit that the meaning and, consequently, its elements may vary from one culture or society to another. Nevertheless, the principle enunciated by Wrenn with regard to the place of conjugal love in bonum coniugum is worth nothing here. He says:
Our position does not claim that love is essential to marriage. Rather it claims first that the right to the bonum coniusgum consists is part of the essential object of marital consent, and second, that the bonum coniugum consists not in partnership, companionship, caring, etc., but rather in the love of the parties for each other.
What is pledged at the time of consent is to love each other. Once this is done with sufficient understanding and willing, the marriage is valid and remains valid even if their love and commitment later disappears. In brief, from a theological perspective, conjugal love, that is, the love between two sexually distinct persons which is specifically ordered to the good of spouses and of offspring is of the essence of marriage. This is confirmed by magisterial pronouncements and conciliar teaching on marriage. In juridical language awe can express the same theological principle as follows; the right to that conjugal love which is ordered to the good of the spouses and of offspring is an essential element of marriage.
3- THE CONJUGAL COVENANT
At least for the last six centuries the official juridical language has described marriage almost exclusively in terms of a contract. This term was introduced into the vocabulary of marriage during the Scholastic period, that is, in the 12th century. Prior to this period, marriage was regarded as a covenant. The covenant idea of marriage expressed the love and fidelity mutually vowed and pledged by the spouses. On the other hand, the contract idea seems to have better expressed the exchange of rights and obligations in a juridical agreement.
In strictly juridical terms, therefore, what is exchanged in the matrimonial contract are the rights and duties specific to marriage as determined in law. The conciliar teaching presents marriage as a “covenant” or “pact” (foedus) through which an “intimate community of conjugal life and love” is established. This conjugal covenant symbolizes the covenant God made with his chosen people in its essential aspects. The term “covenant”, therefore, is intended to bring out the sacred dimensions and the element of mystery of marriage. Two great covenant virtues of God: his faith promise and loving kindness are the heart of this divine covenant.
The personalistic the aspect of marriage seems to be best expressed through this term. Writing on the appropriateness of the term “covenant” in lieu of “contract” or “institution,” W. Kasper says:
The most suitable word, then, would seem to be the biblical term “covenant”, which was also used in the documents of the Second Vatican Council. “Covenant” expresses the personal character of the consensus better than “contract” or “institution”. It is also able to express the legitimate intention of marriage, its public character which is contained in the term “contract”. A covenant is both private and public. The covenant of marriage is not only a personal bond or covenant of love it is also a public and legal matter concerning the whole community of believers. This is, of course, why the covenant is normally concluded in facie ecclesiae.
In a covenantal relationship, therefore, the emphasis is on love and intimate relationship, on fidelity and life companionship, on the spirit rather than simply on external acts and legal formalities. The term “covenant” expresses in a more existential way the theological, cultural and personal aspects of marriage. The Council, therefore, decided to incorporate the strictly legal elements of the contractual nature of marriage into a sacred context. L. Orsy observes that the contractual elements can be still recognized in the exchange of promises, but that exchange can no longer, not even in Canon Law, be adequately defined as a contract.
During the revision of the matrimonial legislation, there was overwhelming support for the use of the conciliar term “covenant” in c. 1055, $2, of the new Code. In the draft of this canon, the term “contract” was used and, when the Code Commission was asked to change it to “covenant,” the relator responded:
The term “contract” and “covenant” are used in one and the same sense, and this deliberately, to show that the matrimonial covenant of which Gaudium et Spes clearly speaks can be instituted in no other way for the baptized than through a contract, even though it is a contract of a special kind. The word therefore, shall remain.
The new Code uses both terms in c. 1055 to signify the same reality. Nevertheless, there is a significant change in the designation of the object of the covenant or contract. The Code no longer speaks of the “right to the body” as that object but marriage itself through the mutual self-gift of the partners (c. 1057, $2). This gift has two joint objects: “the good of spouses and of offspring” (i.e., procreation and education) (c. 1055, $1). With this deeply personalistic view expressed through the biblical term “covenant”, the Council truly enriched the content of matrimonial consent.
Does the term itself (Covenant) have any juridical significance? Orsy says that in law both terms “covenant” are used interchangeably. Therefore, he concludes: “It follows that, as long as we are moving in the world of law, it matters little if the exchange of promises is called contract or covenant, provided it is understood that the word refers to the external sign through which the mystery is identified.” Nevertheless, there is no doubt that the term “covenant” recapitulates the personalistic view of marriage expressed so beautifully in Gaudium et Spes and in the canons of the new Code on marriage. The term expresses the theological and juridical content of marriage in biblical language and provides a universal basis for doctrine and jurisprudence to focus their research and study on the personalistic, religious, and socio-cultural aspects of marriage.
4. THE GOOD OF THE SPOUSES
In C. 1013, $1, of the 1917 Code, we find explicit recognition of “mutual help and remedy of concupiscence” as the secondary end of marriage which could have been juridically translated into the element of bonum coniugum. But this end seems to have had no direct juridical import in the development of jurisprudence. The emphasis was exclusively on the primary end of marriage, that is, the good of offspring. In No. 48 of Gaudium et Spes, the Second Vatican Council expressly states that marriage is an institution ordered “for the good of the spouses, of the children, and of the society.” The various ends of marriage “have a very important bearing on (…) the personal development (…) of every member of the family. Therefore, the man and the woman (…) through intimate union of their persons and tasks offer to each other mutual assistance and service and experience and deepen the sense of their unity daily.”
Furthermore, speaking on the effect of married love on personal enrichment, the Council says: “conjugal love is eminently human because it is directed from one person to another b the affection rooted in the will and embraces the good of the whole person; it can enrich bodily and spiritual sentiments with a unique dignity and enable them as the special elements and sigs of conjugal friendship.”
The essence of the conciliar teaching underlying these statements consists in the reaffirmation of the good of the spouses to be attained principally in and through conjugal life. Herein we find direct recognition of the good of spouses as an element of marriage so beautifully expressed by Pius XI in is encyclical Casti connubii. There he says:
This outward expression of love in the home demands not only mutual help but must go further; it must have as its primary purpose that man and wife help each other day by day in forming and perfecting themselves in the interior life, so that through their partnership in life they may advance even more and more in virtue, and above all that they may grow in true love towards God and their neighbour, on which indeed “dependeth the whole Law of the Prophets.”
The good of the spouses is identified here in three specific areas, namely in their interior life (emotional and psychological integration), in their spiritual life (growth in their personal relationship with God), and finally in social life (extension of their personal integration to the society). This personal and interpersonal growth or perfection of the spouses. Pius XI maintains, is the “primary cause and reason of marriage”.
This mutual interior formation of the spouses, this serious effort to perfect each other, can in all truth be said to be as the Roman Catechism teachers, the primary cause and reason for marriage, if marriage is to be considered not in the stricter sense as an institution for the procreation and education of offspring, but in a wider meaning of a communion of every aspect of life, a community, a society.
Even though the significance and intent of Casti Connubii were more pastoral, moral and doctrinal, we can say that the foundation for later juridical recognition of bonum coniugum was already present in it. In a similar vein, Paul VI in his encyclical Humanae Vitae says: “By means of the reciprocal personal gift of self, proper and exclusive to them, husband and wife tend towards the communion of their beings in view of mutual perfection to collaborate with God in the generation and education of the new life.”
The apostolic exhortation Familiaris Consortio of John Paul II also emphasizes the fact that the conjugal union dependent upon the equal dignity and responsibility of spouses, and the moral criterion for the authenticity of their relationship is the measure in which they can achieve their personal fulfillment in genuine self-giving. It should be clear from this brief analysis of the magisterial teaching on marriage that the good of the spouses holds central place among the ends of marriage. The doctrinal statements, however, while exalting the personal and interpersonal perfection of the spouses in marriage, do not directly indicate the specific elements of this bonum, nor do they provide us with an objective criterion to determine its presence or absence, or the degree of perfection necessary to form conjugal life. Nevertheless, these pronouncements provide the theological foundation for canonical development on the matter.
The theologically based prescriptions of the new Code on marriage no doubt reflect the spirit and doctrine of Gaudium et Spes concerning the juridical recognition of bonum coniugum. The Code Commission deliberately rejected the request that the hierarchy of ends be restored in the new Code; moreover, it also dismissed the objections against the introduction of bonum coniugum in c. 1055,$1, saying that its basis is found in the conciliar teaching on marriage as a covenant, a term rich in interpersonal meaning. Cardinal P. Felici’s response:
The expression “for the good of spouses” must remain. The ordering of marriage to the good of spouses is indeed an essential element of the matrimonial covenant and not the subjective end of those marrying.
Now the Legislator explicitly endorses the juridical relevance of the “good of spouses” (bonum coniugum) by explicitly listening it in the first place noting that the partnership of the whole of life is by its very nature ordered to good of spouses and the procreation and education of offspring. “Canonical writers have begun to study the nature and implications of this bonum to jurisprudence. There is agreement among authors with regard to the juridical value of bonum coniugum. Wren, for example, says: “in light of the Second Vatican Council and of the 1983 Code, the answer is crystal clear. The answer is that besides the three bona recognized prior to Vatican II, we now know that there is a fourth bonum which is equally essential to marriage, namely the bonum coniugum.”
Since canonical reflections are just in the process of being formulated, we do not have any clear identification of the essence of bonum coniugum. As Orsy points out, it is an all-embracing expression implying physical, emotional intellectual and spiritual well-being of the couple. L. De Luca says that the “good of spouses” ought to be seen, above all, as the spiritual good of the spouses.
Wren discusses six of the more obvious qualities that might constitute the essence of “bonum coniugum”, namely partnership, benevolence, companionship, friendship, caring, and love. I have no doubt that other qualities or elements of this bonum will be proposed in future studies. But to what extent these or other qualities or elements will be recognized by jurisprudence as essential to bonum coniugum is quite a different question. Jurisprudence, with help from other auxiliary sciences, will have to determine the essence of this bonum. At the same time one must not forget the fact that the specific good of the spouses might differ from culture to culture. A general checklist of elements may not be helpful in determining the essence of bonum coniugum.
We know that a human person is a psychobiological and spiritual being not totally amenable to scientific studies. Any description of the good of the spouses must take into account the totality of the human person and the duality of conjugal relationship. The term bonum coniugum refers to the good of both spouses and, therefore, to achieve this common good, each partner must be committed to the promotion o the good of the other. As Orsy says, “to enter marriage with the purpose of personal fulfillment only is to bring into it the seed of destruction; a person doing so would not be dedicated to the true value of the married state.”
In determining the essence of bonum coniugum one must consider the physical, emotional, mental, sexual and spiritual well-being of both spouses because both Scripture and magisterial teaching focus on the perfection and fulfillment of the whole person of the spouses. In married state both spouses have the right/ obligation to a reasonable degree of fulfillment of their being.
5. THE GOOD OF THE OFFSPRING
The Second Vatican Council spoke eloquently on bonum prolis in Gaudium et Spes. It said. “By its very nature, the institution of marriage and conjugal love are ordered toward the procreation and education of offspring, and it is in them that they find their crowning glory.” Again in No. 50 we read: “Marriage and conjugal love are by nature ordered to the procreation and education of offspring. Indeed, children are the supreme gift of marriage and they greatly contribute to the good of parents themselves”. In his encyclical Humanae Vitae, Paul VI reaffirmed this intrinsic orientation of marriage and conjugal love by saying that conjugal love is creative of new life. “for it is not exhausted by the loving communion between husband and wife, but also continues to be beyond this to bring new life into being”.
John Paul II echoes the same teaching in Familiaris Consortio where he says:
This totality which is required by conjugal love also corre sponds to the demands of responsible fertility. This fertility is directed to the generation of a human being, and so by its nature it surpasses the purely biological order and involves a whole series of personal values.
In his reaffirmation of the teaching of the primacy of the procreative and formative aspects of bonum prolis, Pius XI had said that “amongst the blessings (bona) of marriage, the child holds first place” and this blessing “is not completed by the mere begetting of them, but something else must be added, namely the proper education of offspring”. He goes on to say that the children should be “begotten lovingly and educated religiously.”
According to magisterial teaching, therefore, the bonum prolis is an essential component of the partnership of the whole of life and it consists of “procreation” and “education” of the child. These two elements are essentially united. In the first place spouses are to be open to procreation of children. Once the child is conceived, they must preserve it through birth and nurture it through their loving care. As T. Doyle says, procreation involves more than the physical r biological dimension of the sexual relationship. Procreation, he rightly points out, is a process which is completed by nurture and is dependent on the total union of the man and woman in an ongoing love relationship.
These theological reflections are to be translated into juridical language. The Legislator had included “procreation” and “education” of the offspring in the primary end of marriage (c. 1013, $1, of the 1917 Code). However, when consent was legally defined, it was the exclusive and perpetual right to acts ordered to the generation of children that came to be the juridical object of matrimonial consent (c. 1081, $1, of the same Code). The second element, namely the “education of the offspring,” was excluded from the realm of the object of consent. Even jurisprudence tended to avoid this issue as it became evident that the concept of “education” was too broad to be juridically defined. Education indeed includes more than providing for the physical needs of the child. The parents are to attend to the child’s emotional, moral and spiritual needs as well. Again these aspects too were viewed as juridically indefinable.
The new Code remains commendably open-ended with regard to this matter. The partnership of the whole of life is ordered to the “procreation and education of offspring”. There is no mention of the right to conjugal acts ordered to procreation in the canon on matrimonial consent (c. 1057, $2). The material object of consent is the very persons of the spouses while the formal object is the “constitution of marriage”. Marriage as a partnership is a complex of rights and obligations flowing from or related to bonum coniugum and bonum prolis (cc. 1055, $1; 1135; 1136). As a matter of fact, therefore, this complex of rights and obligations is the formal object of matrimonial consent and not just the right to conjugal acts ordered to procreation. The bonum prolis as an element of marriage is not limited to procreative acts alone as there are other acts which constitute that bonum. Canon 1136 reads: “Parents have the most serious duty and the primary right to do all in their power to see to the physical, social, cultural, moral and religious upbringing of their children”.
This canon reflects the Church’s genuine desire for wholesome upbringing and education of children. It is the task of doctrine and jurisprudence to define which of these aspects would be juridically relevant. The tradition and more recent jurisprudence has indentified certain elements related to the procreative and formative aspects of bonum prolis which have juridical import. In the first place, there is the traditionally recognized right and obligation to conjugal acts which are naturally open to the generation of offspring. The spouses do not have the right to offspring, but they have the right to conjugal acts open to procreation.
Secondly, the right to the “good of offspring” also implies that it is not sufficient to give the right to conjugal acts open to procreation, but it is also necessary to preserve the child from the moment of its conception. This right may be denied, for instance, if every pregnancy is terminated either deliberately or due to some serious psychopathological causes. Thirdly, the right to the “good of offspring” is not to be restricted only to its physical well-being, but should also encompass social, cultural, moral, and religious upbringing of the child.
A child is not merely a biological and physical entity, but a person with a profoundly moral and spiritual dimension. The wholesome education of the child ought to comprise these aspects. Therefore, when this right to wholesome education (formation) of the child is denied in the partnership for whatever reason. The right to the “good of offspring” itself should be regarded as denied. Further studies should focus on the cultural aspects of bonum prolis because its “formative” aspects may differ from culture to culture.
6. THE GOOD OF FIDELITY (UNITY)
The Second Vatican Council says: “The intimate union, as a mutual self-gift of two persons, and the good of children demand total fidelity from the spouses (…)”. In this statement, the Council places the element of fidelity in conjugal relationship at the very heart of the consortium totius vitae. In other words, conjugal fidelity is essential to the good of the spouses and the good of the children. As a sign of Christ’s union with the Church, conjugal fidelity is at the same time law and ideal, and demands an equal commitment from both spouses.
From a historical point of view, St. Augustine was the first one to call conjugal fidelity the bonum fidei. And this subsequently became part of the juridical vocabulary of canonists. According to him, the bonum fidei is rooted in the faith in Christ and is closely related to bonum prolis and bonum sacramenti because together they realise the total good of marriage.
Bonum fidei does not consist only in rendering the debitum coniugale but also in preserving the intimate friendship between the spouses manifested by generous and constant mutual concern. Therefore, for St. Augustine, bonum fidei denoted total mutual dedication, the sustaining element of conjugal union and the means by which marriage comes to completion. According to St. Augustine and St. Thomas, “unity” unitas is implied in bonum fidei, but the two notions are not coextensive.
The violation of unity of marriage takes place when one takes more than one spouse (polygamy), while bonum fidei is violated by adultery. However, both St. Augustine and St. Thomas do not consider “unity” a separate bonum in itself, although there is some overlapping between it and bonum fidei.
From a juridical point of view, bonum fidei was initially seen as an obligation of the married state (matrimonium in factoesse) , but gradually it came to denote the obligations arising from the right to fidelity exchanged in marital consent (matrimonium in fieri). In this way, the perpetual and exclusive right/ obligation to those acts proper to conjugal life became designated as the only essential juridical content of bonum fidei, whereas the exclusion of other elements covered by the term did not affect the validity of matrimonial consent.
According to Navarrete, the essence of bonum fidei includes besides unity of the bond, the right/obligation to : a) the debitum coniugale to be demanded and given (exigendum et praestandum); and b) the mutual fidelity, that is, exclusivity as it pertains to acts proper to conjugal life. The first right/obligation pertains also to bonum prolis; but while in the bonum prolis, the right to conjugal acts is considered as the right to acts naturally apt for the procreation of offspring, in bonum fidei, the same right to conjugal acts is considered rather as the right to sexuality to be exercised in a human and exclusive manner.
In Casti Connubii, Pius XI linked bonum fidei to conjugal perfection and expanded its content. He considered the mutual perfection of the spouses essential to Christian marriage and centered it upon bonum fidei. He stated:
There, then, are the elements which compose the blessing of conjugal faith, unity, chastity, charity, honourable obedience, which are at the same time an enumeration of the benefits which are bestowed on husband and wife in their married state, benefits by which the peace, the dignity and happiness of matrimony are securely preserved and fostered.
As we have seen earlier, in the teaching of Gaudium et Spes, the bonum fidei is related to the “intimate union” of the spouses effected by their irrevocable personal consent. It is, therefore, not restricted to the exclusivity of conjugal acts only. It must be now regarded as directly related to the bodily and spiritual union of the spouses.
However, nowhere in Gaudium et Spes is there any indication to the effect that this intimate union (bodily and spiritual) of the spouses constitutes an essential element of bonum fidei. But, as we have already seen jurisprudence has in fact recognized “intimate interpersonal relationship” as an essential element of consortium totius vitae.
Navarrete expresses the present jurisprudential approaches to unity and fidelity as follows:
You might perhaps say that the right to fidelity is included in the property of unity. But it should be noted this property connotes only the unicity of the bond. Therefore, only the one who reserves to himself the right to have more than one wife (or husband) in the strictly polygamous sense contracts invalidity due to the exclusion of the property of unity even though not all wives would enjoy the same rights and the same degree of honor in married life. The one who actually intends to marry only one wife and yet reserves to himself herself the right to commit adultery or excludes the obligation to conjugal fidelity also contracts invalidly, but not because of the exclusion of the property of unity since he/she truly does not exclude it.
The new Code does not explicitly speak of bonum fidei. Canon 1056 reiterates the old principle that unity is one of the essential properties of marriage. But as we have seen above, unity is not the same as bonum fidei, and in light of the teaching of Vatican II we cannot say that bonum fidei is restricted only to the element of conjugal acts.
Canon 1101, $2, which lays down the principle with regard to simulation also does not specifically mention bonum fidei but it says that a marriage can be rendered null by the positive exclusion of “some essential element” of marriage. As we have seen so far, bonum fidei has always been regarded as an essential component of conjugal relationship and, therefore, it is to be regarded as such even in the new Code. Because of the new way of understanding marriage based on conciliar teaching, the judicial scope of this element is much wider now than in the past.
Thus for example, De Luca argues that the right to bonum fidei must be regarded as excluded in the case of a spouse who reserved the right to homosexual relationship. Rotal jurisprudence has not acknowledged the juridical significance of such a reservation because the right of the spouse to the other’s body is limited to those acts which are per se apt for the generation of offspring and this is not verified in the above hypothesis. De Luca says that this argument is not convincing because the new Code derives its juridical content from Vatican II which speaks of the fact that the parties “give and accept each other (Gaudium et Spes) no. 48; c. 1057, $2), indicating that there is an integral self-gift of one spouse to another which seems to be excluded through the reservation of the right to homosexual relationship”.
The brief, bonum fidei, understood as “conjugal fidelity”, has always been regarded both in theology and canon law as an essential component of marriage. The property of “unity” and bonum fidei are two distinct elements, “unity” signifying the unicity of the bond and bonum fidei denoting exclusivity of extramarital relationship (conjugal acts), and now it includes also the other essential elements of consortium totius vitae.
7. THE GOOD TO THE SACRAMENT (INDISOLUBILITY)
In the same statement in which it affirms “total fidelity” between spouses, Vatican II also stresses the “unbreakable unity between them” . This ‘unbreakable unity’ (indissolubility) is demanded by both the ‘intimate union’ of the spouses “as a mutual self-gift of two persons, and the good of children.” Again the Council relates this “good of sacrament” to the “good of spouses” when it says that marriage as “an indissoluble covenant between two persons and the good of children demands that the mutual love of the spouses be properly manifested, that it grow and mature”. Thus the conciliar teaching reconfirms the intrinsic relationship between the three essential bona of matrimony.
According to St. Augustine, to whom the theology of the three matrimonial bona owes its origin, bonum sacramenti essentially meant “inseparability and indissolubility” of marriage. For him even a natural marriage contract was sacred that is, the bonum sacramenti denoted the sacred character which every marriage enjoyed. Taking the lead from St. Augustine, doctrine and jurisprudence have consistently understood and expounded on bonum sacramenti as “indissolubility of marriage”.
Together with the other matrimonial bona, the “good of the sacrament” pertains to the essence of marriage in facto esse that is, to matrimonial institution. But, when we deal with the validity of marriage the essential bona are considered not insofar as they constitute the marriage but as they should be contained in the object of consent. Therefore, marriage will remain valid even if the parties, after having given their consent should violate the bona. However, marriage will be invalid if either or both parties have excluded anyone of the essential bona (this is, if the parties have not granted, even implicitly, the rights and correlative obligations which constitute the essence of these bona), even if they should remain faithful to each other until death and fulfill all the obligations of their conjugal life.
The essence of bonum sacramenti is indissolubility of the bond. Questions have been raised with regard to the relationship between this bonum and sacramentality of marriage. Some authors hold that “indissolubility” and “sacramentality” are contained in the bonum sacramenti for Christians. On the other hand, others maintain that bonum sacramenti consists only of “indissolubility” and therefore, they exclude from it the sacramentality of marriage. Canonical jurisprudence has indeed followed this position and has centered of its investigation on indissolubility as the essence of bonum sacramenti.
Grocholewski points out that “sacramentality” is a unique element of the marriage between two Christians and, therefore, it should be a bonum of Christian marriage in its own right. For Christians, the sacramentality of marriage is the means of sanctification. According to this view therefore, the essence of bonum sacramenti is the “indissolubility of the bond”, which Grocholewski calls “bonum vinculi” or “bonum indissolubilitatis”, and this is essentially distinct from “sacramentality”. The new Code reaffirms the principle that indissolubility is an essential property of marriage (c. 1056) and whoever excludes this property) c. 1101, $2), either by placing a term on the marriage or by placing a resolutive clause, contracts invalidly even if he/she intends to terminate marriage through divorce. This principle was in toto contained in C. 1086, $2, of the 1917 Code. Therefore, there is nothing new in the new Code in regard to this point. However, there is a significant change in the connection between the exclusion of bonum sacramenti and “error” of law.
Canon 1101, $1, states that the internal consent of the mind is presumed to be in agreement with words or signs employed in celebrating marriage. In this prescription is the presumption that the external words or signs are an indication of assent or intention “of doing what the Church does”. The second paragraph of the same canon states that a positive act of the will excluding an essential property (e.g., indissolubility) invalidates marriage. As De Luca insightfully points out, the central problem which is present in every case of simulation but particularly evident in the case of exclusion bonum sacramenti, is that of determining at what point the positive act of the will, or the personal state f mind of the simulator required by C. 1101, & 2, prevails over the legal presumption contained in the same canon.
In the past, canonical jurisprudence had made the neat distinction between the sphere of the intellect and the sphere of the will (based on c. 1084 of the 1917 Code), and required a positive act of the will against the substance of marriage before a marriage could be declared null. But the present trend in jurisprudence is to weigh first the state of the mind of the person at the time of contracting marriage rather than start with the legal presumption that the party had contracted a true marriage. This approach is particularly applicable to people who live in certain cultural, spiritual (religious), and social contexts which foster marital values contrary to those taught by the Church. By focusing on error pervicax rather than error simplex, jurisprudence has moved beyond the prescription of C. 1084 of the same 1917 Code with regard to indissolubility. In other words, error pervicax in now regarded as identical to a positive act of the will.
Canonical jurisprudence, therefore, admits that “an erroneous concept about indissolubility” or “divorce mentality” could constitute a valid basis for presuming the exclusion of indissolubility. This admission is based on the psychological fact that, because of the unity of the human spirit, a person normally wishes that which he truly believes. Therefore, even if the external words seem contrary to such an inner disposition of the mind, the content of his intent will be marriage as he conceives it. In this situation, the concept of marriage in the mind of the spouse would be the content of his/her intent. Many cases of a truly conscientious adherence to a religious belief, philosophy of life (as in the case of hippies), cultural values, etc., which are contrary to the Christian concept of marriage, and especially of indissolubility, would fall under this category.
Canon 1099 of the new Code has a significantly modified version of c. 1084 of the 1917 Code. The latter stipulated that error about unity or indissolubility, even if it is causam dans is irrelevant to the nullity of marriage. But, according to the new canon, error concerning the indissolubility, of marriage vitiates consent whenever it determines the will. In light of this canon, therefore, divorce mentality or conscientious adherence to values contrary to the Christian view of marriage can be regarded as an error which normally “determines the will.”
8. SACRAMENTAL DIGNITY
In its teaching on the sacramental nature of marriage, Vatican II says that Christ “encounters Christian spouses through the sacrament of marriage”. It adds that “authentic conjugal love is assumed into divine love and is enriched by the redemptive virtue of Christ and the salvific action of the Church so that the spouses may be effectively led to God and helped and strengthened in their sublime role as father and mother”. This sacrament, the Council affirms, is the source of sanctification of the spouses and of the family as through it they are strengthened and consecrated for the duties and dignity of their state. Furthermore, through this sacrament Christ’s spirit penetrates their whole being and are helped to further their own perfection and mutual sanctification. In these sublime words, the Council upholds the unique nature of Christian marriage, that is, an intimate union gifted with grace and divine love. Therefore, sacramental dignity of Christian marriage is a specific element distinct from other bona of marriage.
The sacramental nature of marriage confirms and strengthens the indissolubility of marriage. There is a reciprocal constitutive relationship between indissolubility and sacramentality of Christian marriage. From a theological point of view, the sacramental nature of marriage constitutes the final ground although not the only ground for its indissolubility. Does sacramental dignity of marriage have any juridical significance in relation to the nullity of marriage? The new Code reaffirms both the sacramentality (c. 1055, $1) as well as the inseparability of marriage and sacrament (c. 1055, $2). Canon 1012, $1 of the 1917 Code had also stated that Christian marriage is a sacrament.
In the past both law and jurisprudence looked almost exclusively to the contractual aspect of marriage considering sacramentality of marriage as a necessary corollary of the contract. The canonical reasoning behind this was that even if the spouses did not intend to receive the sacrament, the contract would nevertheless be valid. Even though someone might have excluded the sacramentality of marriage, one could not automatically conclude the nullity of marriage itself because the essential requisites for the existence of marriage according to the natural law would still be presumed present by reason of the fact that the parties placed their own marriage under the sign of something sacred and so, presumably, “had the intention of doing what Christians do”.
The new Code seems to have opened up the possibility of viewing “sacramental dignity” as an essential element or property marriage. Canon 1101, $2 of the new Code recognizes the nullity of marriage in the case of exclusion of one of the essential elements or properties of marriage. Even though c. 1056 does not designate “sacramentality” of marriage as an essential property, by interpreting c. 1099 we can legitimately include it either as a “property” (c. 1056) or as an “essential element” of marriage (c. 1101, $2). Canon 1099 states that error of law about unity or indissolubility or sacramental dignity of marriage does not imply nullity as long as that error “does not determine the will”. From the implication of these last words one can reasonably conclude that the new code attributes to sacramental dignity a status equal to that of unity and indissolubility. Therefore, De Luca concludes that “sacramental dignity” may be regarded as one of the “essential properties” of marriage (c. 1056). Once this is admitted, either by virtue of exclusion of “sacramentality” as an “essential element” or as an “essential property” or by virtue of error about “sacramentality”, a marriage can be regarded as invalid. In his scientific reflections on the juridical structure of marriage according to Vatican II, Navarrete had concluded.
It is evidential that the Council presupposes and with sufficient clarity implies that the marriage between Christians cannot exist without it being a sacrament at the same time because Christ has raised to sacramental dignity every valid marriage between two Baptized persons. Consequently, sacramentality constitutes an “essential good” bonum essential of a Christian marriage. Baptized persons cannot enter into a valid marriage if by a positive act of the will they exclude from their consent the sacrament of marriage just as any contractant excludes the indissolubility of marriage.
The hypotheses involving the situations above may be verified in persons who are baptized but have no faith or indeed are actually hostile to the Church or the Catholic religion. A habitual intention may be presupposed in these situations. In a marriage case involving a baptized person who had no faith, recourse cannot be had to the presumption that everyone who enters marriage by means of a religious ceremony has the “general intention of doing what the Church does.”
It is important to note that during the process of the revision of the Code there was deliberate attempt to include “sacramentality” as an essential element of marriage. But during the Plenary Session of the Code Commission. October 20-29, 1981, the clause “aut sacramentalem dignitatem” which was introduced into c. 1055, $2, of the 1981 Relatio was dropped in order to respect the view of those Christians who do not consider marriage as a sacrament. Nevertheless, in virtue of cc. 1099 and 1101, $2, of the new Code, the juridical relevance of the “sacramental dignity” of marriage as an essential property or as an essential element of Christian marriage can be justified.
9. THE GOOD OF SOCIETY
In no. 48 of Gaudium et Spes, the Council Fathers specifically mentioned, besides bonum coniugum and bonum prolis, also bonum societatis. Moreover, they also spoke of “other goods and ends” which are of greatest importance to the personal growth of each member of the family, to the good of the family and of the entire human society. Since the purpose of the Constitution was to enter into a dialogue with the world at large, the Council Fathers did not want to introduce technical terms and specifications of various “goods” and “ends” of marriage. The fact to be noted here is that the Church acknowledges values present on marriage as a natural institution. Therefore, in no. 50 of Gaudium et Spes it expressly states that these goods are not to be neglected. In these statements, the Council affirms that other ends of marriage, e.g., the good of family and society, are not to be neglected or underestimated; on the contrary, they are to be accorded due value and consideration. Even though the Council itself did not specify these goods or ends, it has provided to canonical doctrine and jurisprudence the basis for looking beyond the traditional bona and fines matrimonii. The general principles provided in matrimonial legislation must be applicable to different aspect s of marriage as it is found in different cultures and societies.
In certain cultures, for example, the good of the family or of the tribal unit has a principal place in the institution of marriage. The purpose of marriage is defined in terms of this good. Therefore, in light of the teaching of Gaudium et Spes, can this good be accorded juridical relevance in Canon Law? Furthermore, c. 1084, $3, states that “sterility neither prohibits nor invalidates marriage”. This is a merely ecclesiastical law. In certain cultures in Africa, for example, the consequences of sterility and, hence, its importance in marriage, are not seen in the same way as seen by the Church. In those cultures, marriage has a purpose beyond the good of the spouses. Therefore, those cultures attribute to “sterility” an important value which seems to amount to a juridical impediment to marriage. The conjugal relationship is primarily ordered toward the continuance and strengthening of the family and tribal unit. I believe that we have not reached a point where these values (good or ends) can be given juridical impediment to marriage. The conjugal; relationship is primarily ordered toward the continuance and strengthening of the family and tribal unity. I believe that we have not reached a point where these values (good or ends) can be given juridical relevance in Canon Law. Nevertheless, the future development of doctrine and jurisprudence ought to take into consideration these and other values intrinsic to marriage as found in different cultures and societies.
10. THE EXCLUSIVITY AND PERPETUITY OF THE CONSORTIUM
Traditional canonical jurisprudence has attributed exclusively the qualities of ‘exclusivity’ and ‘perpetuity’ to the right to conjugal acts apt for the generation of offspring. In recent years, the jurisprudential approach to these qualities has widened the scope of their application. In essence, they are now being related to all essential rights and obligations of marriage. Thus, for example, the right and correlative obligation to conjugal relationship and conjugal acts are exclusive. According to this principle, the spouses may not deliberately exclude or be incapable of honoring this obligation as may happen in certain cases of sexual dysfunctions or personality disorders. Similarly, the correlative obligation to conjugal (interpersonal and heterosexual) relationship is perpetual. This relationship is, by its very nature, lifelong and therefore, the right to it is perpetual. In other words, the spouses have the mutual right and obligation to the perpetuity of the conjugal relationship. This implies that the right and obligation of interpersonal heterosexual relationship and conjugal intercourse are perpetual and exclusive.
The formal object of matrimonial consent is the complex of essential marital rights and obligations. These right and obligations which constitute the essence of consortium totius vitae are exclusive and perpetual. Either a positive act of the will excluding or limiting, or an inability to honour the requirement of exclusivity and perpetuity of the essential marital obligations would amount to invalidity of the matrimonial consent.
Theology is the matrix or foundation of Canon Law. This implies that the foundation concepts are disciplinary norms governing Church’s activities must be drawn from and based on sound theological postulates. The ecclesiastical legislation contained in the new Code may be characterized as a fair approximation of the doctrine contained in the document of Vatican II. This is particularly true of matrimonial legislation of the new Code, which reflects the fundamental doctrinal principles enunciated in Gautium et Spes. In this document, the Council described marriage as “an intimate community of conjugal life and love”, reiterated the basic juridical principle that consent is the efficient cause of marriage, declared clearly that this “intimate community” is by its nature ordered to the good of the spouses and to the traditional tria bona, including the sacramental dignity of marriage. All these elements have been diligently incorporated into the new Code.
Since cc. 1055; 1056; 1095; 1099; 1101, $2; 1134; 1135; 1136 are largely open-ended, there is ample room for wider doctrinal and jurisprudential developments. In this study, have tried to indentify some of the juridical elements which can be regarded as essential to marriage. these are: a) The intimate community of life, juridically translated into “intimate interpersonal relationship”; b) Conjugal love; c) The good of the spouses; d) the good of the offspring; e) The good of fidelity (unity); f) The good of the sacrament (indissolubility); g) Sacramental dignity; h) The good of the society; i) The exclusivity and perpetuity of the consortium. This is not an exhaustive list of all the possible essential elements of marriage. But they are logically drawn from their theological and juridical sources. From a juridical point of view, therefore, each spouse would have the exclusive and perpetual right to each of these elements. It must be noted here, however, that some of the elements mentioned above consist of several components without which the elements themselves cannot exist. For example, the element of the good of offspring consists of physical, moral, spiritual, and cultural well-being of the child. Each aspect constitutes an essential component of that good. In view of the multiplicity of components, each element needs more in-depth study.
Since the description of marriage in the new Code is sufficiently open ended, it necessitates, on the part of Canonists, serious research and study of the essential elements. This task would necessarily involve integration of the valid and dependable conclusions of medical and behavioural sciences into canonical doctrine and jurisprudence. This, I believe, cannot be done without mature scientific discretion on the part of canonists.