CanonLaw.info

Dr. Edward Peters

To work for the proper implementation of canon law is to play an extraordinarily

constructive role in continuing the redemptive mission of Christ. Pope St. John Paul II

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Marriage Sacrament and Law (AT 746)

Notices ►

The supplemental reading projects are as follows: (1) Read and summarize in 200 to 400 words the USCCB, pastoral letter on "Marriage: Love and Life in the Divine Plan" (17 nov 2009), Origins 39/26 (3 dec 2009) 417-434, on-line here; (2) read Francis (reg. 2013-), ap. exh. Amoris laetitia (19 mar 2016), Acta Apostolicae Sedis 108 (2016) 311-446, pdf here, chapter 8, and present the three best points made in that controversial chapter and the three most problematic points made therein. Both projects due not later than 12:00 noon on April 22 (exam day) and may be submitted in hardcopy (personally or to my mail box) or by email attachment (no Google docs!)

Quick

links

• Orientation

• Capacity

• Scripture

• Consent

• Magisterium

• Form

• Preambulatory

• Selected Topics

General remarks

Note: Before consulting this page see my Master Page for Sacred Heart Major Seminary Students, here.

Overview: This course presents the fundamental doctrinal and canonical aspects of the Sacrament of Matrimony.

Class meets: Mondays, 1:00 pm to 3:50 pm, Room 113.

Required texts: No texts need be purchased for this course, but students will need access to:

• Catechism of the Catholic Church (1992/1997) esp. 1601-1666 and 2331-2400, text available on-line here (1601-1666) and here (2331-2400).

• Canon Law Society of America, Code of Canon Law, Latin-English Edition, New English Translation (Canon Law Society of America, 2012) ISBN: 1-932208-32-1. This volume is either (a) out of print, very out-of-date, and generally over-priced in the used book mark or (b) as revised as recently as 2023, quite expensive, and increasingly out-of-date. A hardcopy, however, is on reserve in the Szoka Library and the text of the law is available on-line, here.

• Scriptural, magisterial, and/or scholarly materials listed below.

Class format: Interactive lecture, sequentially, on the materials listed below. This course focuses on the original sources (i.e., Sacred Scripture, Magisterium, the Code) of Catholic doctrine and law of marriage with an eye toward modeling for students how to plumb these original sources themselves for information and inspiration in coming years.

Course grading: Two exams consisting of multiple choice, true/false, fill-in-the-blank, and short answer questions focusing on required readings and matters listed below and/or discussed in class.

Course Outcome: Upon completion of this course the successful student will have a grasp of the development of the Sacrament of Marriage in the Catholic theological tradition and an appreciation of the canon law of marriage law currently in force and how it applies in a pastoral context.

SHMS Bulletin description: This course provides an historical study of the development of the Sacrament of Marriage in the Catholic theological tradition from biblical times until today, and an examination of marriage law with attention to the canonical and pastoral considerations involved in the preparation for marriage, the annulment and dissolution of marriage, and the ecclesial procedures used in issuing decrees of nullity. Included will be contemporary and ecumenical issues. 3 credits. (Prerequisites: MNS 300, AT 780, or AT 550).

Other Resources

Bibliography

In addition to the standard canonical commentaries, scholarly works useful for graduate-level study of Catholic matrimonial doctrine and law include:

• André Villeneuve (Canadian layman, 1969-), Divine Marriage from Eden to the End of Days, (Wipf & Stock, 2021) 321 pp. ▪ Outstanding study based on dissertation work, Scripturally grounded, not a quick read but a rewarding one.

• Christian Brugger (American layman, 1964-), The Indissolubility of Marriage & the Council of Trent, (Catholic University of America, 2017) 295 pp. ▪ Review: E. Peters, Studia Canonica 52 (2018) 636-638.

• Perry Cahall (American layman, 1974-), The Mystery of Marriage: a theology of the body and the sacrament, (Hillenbrand Books, 2016) 490 pp. ▪ Perhaps the best recent work with an eye toward pastoral applications.

• R. Dodaro, ed., Remaining in the Truth of Christ: Marriage and Communion in the Catholic Church, (Ignatius, 2014) 324 pp. ▪ Outstanding essays by leading prelates and scholars; as it happened, this book was also apparently the object of a Vatican mail theft scheme during the 2015 Synod on Marriage (details here) upon which I commented at Peters' Blog, 26 feb 2015 (2), here.

• Ramón García de Haro (Spanish priest, 1931-1996), Marriage in the Documents of the Magisterium: a course in the theology of marriage, (Ignatius, 1993) 435 pp., W. May trans. of Haro, Matrimonio & Famiglia nei Documenti del Magisterio: corso di teologia matrimoniale (1989). ▪ Resource text with good commentary.

• Victor Pospishil (Austrian/American Ukrainian priest, 1915-2006), Eastern Catholic Marriage Law, (Saint Maron Publications, 1991) 532 pp. ▪ As titled.

• Urbano Navarrete [Cortés] (Italian Jesuit, 1920-2010), Structura iuridica matrimonii secundum Concilium Vaticanum II: momentum iuridicum amoris conjugalis, (Gregoriana, no date) 155 pp., reprinted from Periodica 56 (1967) 357-383, 554-578, and 57 (1968) 131-167, 169-216. ▪ As titled.

• Edward Schillebeeckx (Belgian Dominican, 1914-2009), Marriage: Human Reality and Saving Mystery, (Sheed & Ward, 1965) in 2 vols., anon. trans. of Schillebeeckx, Het Huwelijk: aardse werkelijkheid en heilsmysterie (1963). ▪ Controversies provoked by Schillebeeckx's later work have caused unfortunate neglect of this fine study of marriage.

• Louis Epstein (Lithuanian/American rabbi, 1887-1949), Marriage Laws in the Bible and the Talmud, (Harvard, 1942) 362 pp. ▪ Not an overview of or introduction to general Jewish marriage law but rather an examination of key related matters such as polygamy, concubinage, and levirate marriage. Useful for its contrasts to positive marriage law which is assumed throughout.

• George Joyce (English Jesuit, 1864-1943), Christian Marriage: an historical and doctrinal study, (Sheed & Ward, 1933) 632 pages. ▪ Review: G. Osterle, Ius Pontificium 14 (1934) 237-238. ▪ Excellent narration of the, how to put it?, pre-personalist understanding of marriage.

• Pietro Gasparri (Italian prelate, 1850-1934), Tractatus Canonicus de Matrimonio [1892], (Typis Polyglottis Vaticanis, 9th ed., 1932) in 2 vols. ▪ Probably the most famous canonical treatise on marriage ever written and certainly one of the all-time classics of canon law.

• Adhémar Esmein (French layman, 1848-1913), Le Mariage en Droit Canonique [1891], (Recueil Sirey, rev. by R. Génestal, 1929/1935) in 2 vols. ▪ As titled.

Orientation

Relationship between doctrine of marriage and canon law of marriage.

• No area of Church doctrine has been more influenced by Church law than has marriage. Even today, the opening paragraph of the Catechism's presentation of the sacrament marriage begins with a verbatim quote from Canon 1055 § 1 of the Western Code of Canon Law: "CCC 1601. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament."

Some key distinctions:

Marriage vs. Matrimony, or, Sine matrimonio nullum Matrimonium.

Marriage (matrimonium in facto esse) vs. Wedding (matrimonium in fieri)

Marriage vs. Valid Marriage

Divorce vs. Dissolution vs. Annulment

exual Intercourse vs. Conjugal Relations

Required readings:

• Peters' blog, 18 mar 2021, here. ▪ An overview of some key terms and distinctions.

Scripture

(RSV)

Old Testament

Genesis II: 21-24. So the LORD God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh; and the rib which the LORD God had taken from the man he made into a woman and brought her to the man. Then the man said, “This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man.” Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.

Genesis I: 27. So God created man in his own image, in the image of God he created him; male and female he created them. And God blessed them, and God said to them, 'Be fruitful and multiply, and fill the earth and subdue it....'

Deut. XXIV: 1-3. When a man takes a wife and marries her, if then she finds no favor in his eyes because he has found some indecency in her, and he writes her a bill of divorce and puts it in her hand and sends her out of his house, and she departs out of his house, and if she goes and becomes another man's wife, and the latter husband dislikes her and writes her a bill of divorce and puts it in her hand and sends her out of his house, or if the latter husband dies, who took her to be his wife, then her former husband, who sent her away, may not take her again to be his wife, after she has been defiled...

Malachi II: 14-16. ... [T]he Lord was witness to the covenant between you and the wife of your youth, to whom you have been faithless, though she is your companion and your wife by covenant. Has not the one God made and sustained for us the spirit of life? And what does he desire? Godly offspring. So take heed to yourselves, and let none be faithless to the wife of his youth. For I hate divorce, says the Lord the God of Israel, and covering one's garment with violence, says the Lord of hosts. So take heed to yourselves and do not be faithless.

New Testament

Matthew XIX: 3-9. And Pharisees came up to him and tested him by asking, ‘Is it lawful to divorce one's wife for any cause?’ He answered, ‘Have you not read that he who made them from the beginning made them male and female, and said, For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh? So they are no longer two but one flesh. What therefore God has joined together, let not man put asunder.’ They said to him, ‘Why then did Moses command one to give a certificate of divorce, and to put her away?’ He said to them, ‘For your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so. And I say to you: whoever divorces his wife, except for unchastity, and marries another, commits adultery; and he who marries a divorced woman, commits adultery.’

Matthew V: 31-32. It was also said, Whoever divorces his wife, let him give her a certificate of divorce. But I say to you that every one who divorces his wife, except on the ground of unchastity, makes her an adulteress; and whoever marries a divorced woman commits adultery.

Mark X: 2-12. And Pharisees came up and in order to test him asked, ‘Is it lawful for a man to divorce his wife?’ He answered them, ‘What did Moses command you?’ They said, ‘Moses allowed a man to write a certificate of divorce, and to put her away.’ But Jesus said to them, ‘For your hardness of heart he wrote you this commandment. But from the beginning of creation, God made them male and female. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one. So they are no longer two but one. What therefore God has joined together, let not man put asunder.’ And in the house the disciples asked him again about this matter. And he said to them, ‘Whoever divorces his wife and marries another, commits adultery against her; and if she divorces her husband and marries another, she commits adultery.’

Luke XVI: 18. Every one who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery.

Ephesians V: 21-33. Be subject to one another out of reverence for Christ. Wives, be subject to your husbands, as to the Lord. For the husband is the head of the wife as Christ is the head of the church, his body, and is himself its Savior. As the church is subject to Christ, so let wives also be subject in everything to their husbands. Husbands, love your wives, as Christ loved the church and gave himself up for her, that he might sanctify her, having cleansed her by the washing of water with the word, that he might present the church to himself in splendor, without spot or wrinkle or any such thing, that she might be holy and without blemish. Even so husbands should love their wives as their own bodies. He who loves his wife loves himself. For no man ever hates his own flesh, but nourishes and cherishes it, as Christ does the church, because we are members of his body. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. This mystery is a profound one, and I am saying that it refers to Christ and the church; however, let each one of you love his wife as himself, and let the wife see that she respects her husband.

Romans VII: 2-3. Thus a married woman is bound by law to her husband as long as he lives; but if her husband dies she is discharged from the law concerning her husband. Accordingly, she will be called an adulteress if she lives with another man while her husband is alive. But if her husband dies she is free from that law, and if she marries another man she is not an adulteress.

 • 1917 CIC 1142. Although chaste widowhood is more honorable, nevertheless, second and subsequent marriages are valid and licit, with due regard for the prescription of Canon 1069 § 2.

 • 1917 CIC 1143. A woman who has once received a solemn nuptial blessing cannot accept it again in subsequent weddings.

Magisterium

Tridentine

Council of Trent, Sess. XIV (11 nov 1563), On Marriage, Waterworth trans on-line here.

DOCTRINE ON THE SACRAMENT OF MATRIMONY (sub Pius IV, 11 nov 1563)

The first parent of the human race, under the influence of the divine Spirit, pronounced the bond of matrimony perpetual and indissoluble, when he said “This now is bone of my bones, and flesh of my flesh. Wherefore a man shall leave father and mother, and shall cleave to his wife, and they shall be two in one flesh.”

But, that by this bond two only are united and joined together, our Lord taught more plainly, when rehearsing those last words as having been uttered by God, He said, therefore now they are not two, but one flesh; and straightway confirmed the firmness of that tie, proclaimed so long before by Adam, by these words; What therefore God hath joined together, let no man put asunder.

But, the grace which might perfect that natural love, and confirm that indissoluble union, and sanctify the married, Christ Himself, the institutor and perfecter of the venerable sacraments, merited for us by His passion; as the Apostle Paul intimates, saying: Husbands love your wives, as Christ also loved the Church, and delivered himself up for it; adding shortly after, This is a great sacrament, but I speak in Christ and in the Church.

Whereas therefore matrimony, in the evangelical law, excels in grace, through Christ, the ancient marriages; with reason have our holy Fathers, the Councils, and the tradition of the universal Church, always taught, that it is to be numbered amongst the sacraments of the new law; against which, impious men of this age raging, have not only had false notions touching this venerable sacrament, but, introducing according to their wont, under the pretext of the Gospel, a carnal liberty, they have by word and writing asserted, not without great injury to the faithful of Christ, many things alien from the sentiment of the Catholic Church, and from the usage approved of since the times of the apostles; the holy and universal Synod wishing to meet the rashness of these men, has thought it proper, lest their pernicious contagion may draw more after it, that the more remarkable heresies and errors of the above-named schismatics be exterminated, by decreeing against the said heretics and their errors the following anathemas.

ON THE SACRAMENT OF MATRIMONY

CANON I ─ If anyone says, that matrimony is not truly and properly one of the seven sacraments of the evangelic law, (a sacrament) instituted by Christ the Lord; but that it has been invented by men in the Church; and that it does not confer grace; let him be anathema.

CANON II ─ If anyone says, that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law; let him be anathema.

CANON III ─ If anyone says, that those degrees only of consanguinity and affinity, which are set down in Leviticus, can hinder matrimony from being contracted, and dissolve it when contracted; and that the Church cannot dispense in some of those degrees, or establish that others may hinder and dissolve it ; let him be anathema.

CANON IV ─ If anyone says, that the Church could not establish impediments dissolving marriage; or that she has erred in establishing them; let him be anathema.

CANON V ─ If anyone says, that on account of heresy, or irksome cohabitation, or the affected absence of one of the parties, the bond of matrimony may be dissolved; let him be anathema.

CANON VI ─ If anyone says, that matrimony contracted, but not consummated, is not dissolved by the solemn profession of religion by one of the married parties; let him be anathema.

CANON VlI ─ If anyone says, that the Church has erred, in that she hath taught, and doth teach, in accordance with the evangelical and apostolical doctrine, that the bond of matrimony cannot be dissolved on account of the adultery of one of the married parties; and that both, or even the innocent one who gave not occasion to the adultery, cannot contract another marriage, during the life-time of the other; and, that he is guilty of adultery, who, having put away the adulteress, shall take another wife, as also she, who, having put away the adulterer, shall take another husband; let him be anathema.

CANON VIII ─ If anyone says, that the Church errs, in that she declares that, for many causes, a separation may take place between husband and wife, in regard of bed, or in regard of cohabitation, for a determinate or for an indeterminate period; let him be anathema.

CANON IX ─ If anyone says, that clerics constituted in sacred orders, or Regulars, who have solemnly professed chastity, are able to contract marriage, and that being contracted it is valid, notwithstanding the ecclesiastical law, or vow; and that the contrary is no thing else than to condemn marriage; and, that all who do not feel that they have the gift of chastity, even though they have made a vow thereof, may contract marriage; let him be anathema: seeing that God refuses not that gift to those who ask for it rightly, neither does He suffer us to be tempted above that which we are able.

CANON X ─ If anyone says, that the marriage state is to be placed above the state of virginity, or of celibacy, and that it is not better and more blessed to remain in virginity, or in celibacy, than to be united in matrimony; let him be anathema.

CANON XI ─ If anyone says, that the prohibition of the solemnization of marriages at certain times of the year, is a tyrannical superstition, derived from the superstition of the heathen; or, condemn the benedictions and other ceremonies which the Church makes use of therein; let him be anathema.

CANON XII ─ If anyone says, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema.

Modern magisterial

Required readings:

• Leo XIII (reg. 1878-1903), enc. Arcanum divinae sapientiae (10 feb 1880), Acta Sanctae Sedis 12 (1880) 385-402, Eng. trans. in C. Carlen ed., The Papal Encyclicals, in 5 vols. (Pierian Press, 1990) II: 29-40, Vatican trans. on-line here.

• Second Vatican Council, const. Gaudium et spes (7 dec 1965), Acta Apostolicae Sedis 58 (1966) 1025-1120; Eng. trans. in A. Flannery, ed., Vatican Council II: The Conciliar and Post-Conciliar Documents (Catholic Book Publishing, 1975) 903-1001, Vatican trans. on-line here, nn. 46-52.

• Paul VI (reg. 1963-1978), enc. Humanae vitae (25 iul 1968), Acta Apostolicae Sedis 60 (1968) 481-503, Eng. trans. in C. Carlen ed., The Papal Encyclicals, in 5 vols. (Pierian Press, 1990) IV: 223-233, Vatican trans. on-line here.

Background readings:

• Pius XI (reg. 1922-1939), enc. Casti connubii (31 dec 1930), Acta Apostolicae Sedis 22 (1930) 539-592, et Acta Apostolicae Sedis 22 (1930) 604, Eng. trans. in C. Carlen ed., The Papal Encyclicals, in 5 vols. (Pierian Press, 1990) III: 391-414, Vatican trans. on-line here.

• St. John Paul II (reg. 1978-2005), ap. exhort. Familiaris consortio (22 nov 1981), Acta Apostolicae Sedis 74 (1982) 81-191, Vatican trans. on-line here.

• USCCB, past. let. "Marriage: Love and Life in the Divine Plan" (17 nov 2009), Origins 39/26 (3 dec 2009) 417-434, on-line here.

• Francis (reg. 2013-), ap. exh. Amoris laetitia (19 mar 2016), Acta Apostolicae Sedis 108 (2016) 311-446, pdf here.

But, required readings re Amoris:

• Edward Peters, "The canonical position of Amoris laetitia", Fellowship of Catholic Scholars Quarterly 40/1-2 (Spring-Summer, 2017) 15-19, pdf here. ▪ The 'Communion event' involves two actors doing two different things in accord with two different laws; Amoris is not a legislative document; the only 'internal forum solution' here is the brother-sister relationship.

• Peters' Blog, 13 jan 2017, here. ▪ The implementation of Amoris laetitia VIII by the bishops of Malta is nothing short of a disaster.

Canon Law

Background norms

Canon 1. The canons of this Code regard only the Latin Church.

Canon 18. Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.

Canon 213. The Christian faithful have the right to receive assistance from the sacred pastors out of the spiritual goods of the Church, especially the word of God and the sacraments.

Canon 219. All the Christian faithful have the right to be free from any kind of coercion in choosing a state of life.

Canon 223. ... § 2. In view of the common good, ecclesiastical authority can direct the exercise of rights which are proper to the Christian faithful.

Canon 841. Since the sacraments are the same for the whole Church and belong to the divine deposit, it is only for the supreme authority of the Church to approve or define the requirements for their validity; it is for the same or another competent authority ... to decide what pertains to their licit celebration, administration, and reception and to the order to be observed in their celebration.

Canon 843. § 1. Sacred ministers cannot deny the sacraments to those who seek them at appropriate times, are properly disposed, and are not prohibited by law from receiving them. § 2. Pastors of souls and other members of the Christian faithful, according to their respective ecclesiastical function, have the duty to take care that those who seek the sacraments are prepared to receive them by proper evangelization and catechetical instruction, attentive to the norms issued by competent authority.

Pre-ambulatory

Book IV, Title VII, Marriage

1983 CIC 1055. § 1. The matrimonial covenant, by which a man and a woman establish between themselves a consortium of the whole of life which, by its nature, is ordered to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized. § 2. Therefore a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament. ▪ Olim, 1917 CIC 1012-1013.

• 1917 CIC 1013 § 1. The primary end of marriage is the procreation and education of children; the secondary [end] is mutual support and a remedy for concupiscence.

1983 CIC 1062. § 1. A promise of marriage, whether unilateral or bilateral, which is called an engagement, is governed by the particular law established by the conference of bishops, after it has considered any existing customs and civil laws. § 2. A promise to marry does not give rise to an action to seek the celebration of marriage; an action to repair damages, however, does arise if warranted. ▪ Olim, 1917 CIC 1017; Orientalis, 1990 CCEO 782.

Background readings:

• USCCB, compl. norm re Canon 1062 § 1 (01 dec 1999), here. ▪ Summary: The episcopal conference intends to issue no norms on engagements.

• See Shorter Book of Blessings, 167-186. (BBB: 195-214)

Title VII, Chapter I, Pastoral care and things that must precede marriage

1983 CIC 1063-1072, on-line here.

Background readings:

• Pont. Council for the Family (Lòpez Trujillo), doc. "La preparazione al matrimonio" (13 mai 1996), EV 15: 481-513. ▪ Eng. on-line here. Summary: Guidelines on preparation for the sacrament of Marriage.

• USCCB, compl. norm re Canon 1067 (20 dec 2000), here. ▪ Summary: Matters to be addressed and documentation to be assembled as part of marriage preparation.

• Edward Peters, "Too young to marry", America (22-29 Jun 1996) 14-16, here.

Capacity

Title VII, Chapter II, Diriment impediments

1983 CIC 1073. Impediment renders person unqualified for marriage

Required readings:

• Peters' Blog, 11 sep 2014, here. ▪ Cohabitation is not an impediment to marriage but pastorally it is poor preparation for marriage.

1983 CIC 1074. Provable impediments are public, others occult

1983 CIC 1075. Only supreme authority of Church can declare matrimonial impediments or prohibitions

1983 CIC 1076. Customs introducing or negating impediments are reprobated

1983 CIC 1077. Prohibition ('vetitum') of marriage

Scholion on dispensations

1983 CIC 1078. General provisions on dispensation

1983 CIC 1079. Dispensations in urgent danger of death

1983 CIC 1080. Last-minute ('omnia parata') dispensations

1983 CIC 1081. Notification concerning external forum dispensation

1983 CIC 1082. Notation of some internal forum dispensation to be noted to in secret archives

Title VII, Chapter III, Specific diriment impediments

1983 CIC 1083. Nonage

1983 CIC 1084. Impotence

1983 CIC 1085. Prior bond

Background readings:

• Gerhard Müller (Cong. for the Doctrine of the Faith), art. expl. Matrimonii indissolubilitatem necnon disceptationem de divortio separatis novas nuptias civiliter ineuntibus [23 oct 2013], Communicationes 45 (2013) 329-340 (Italian). ▪ Eng. trans. on-line here. Summary: Overview of Church teaching on indissolubility of marriage and consequences of entering post-divorce pseudo-marriage.

Omnium 1086. Disparity of cult

Background readings:

• Benedict XVI (reg. 2005-2013), m.p. Omnium in mentem (26 oct 2009), AAS 102 (2010) 8-10. ▪ Eng. trans. on-line here. Summary: Eliminates recognition of formal defection as exempting from the requirements of the canon.

• Pont. Council for the Pastoral Care of Migrants and Itinerant People (Hamoa), instr. Erga migrantes (3 mai 2004), AAS 96 (2004) 762-822. ▪ Eng. trans. on-line here, esp. nn. 67-68.

• USCCB (Committee for Ecumenical and Interreligious Affairs) & Islamic Circle of North America, doc. "Marriage: Roman Catholic and Sunni Muslim Perspectives" (2010) 105 pp. ▪ Eng. on-line here.

1983 CIC 1087. Orders

1983 CIC 1088. Vow of chastity

1983 CIC 1089. Abduction

• Note: CCEO 806 extends the impediment to cases involving the kidnapping of man/groom.

1983 CIC 1090. Crime

1983 CIC 1091. Consanguinity

Queen Victoria & Prince Albert

Edgar Allan Poe & Virginia Clemm

1983 CIC 1092. Affinity

• Note: CCEO 809 extends the impediment to second degree collateral relations.

1983 CIC 1093. Public propriety

• Note: CCEO 810 expressly extends the impediment to cases of common life after invalid marriage.

1983 CIC 1094. Adoption

Consent

Title VII, Chapter IV, Matrimonial consent

1983 CIC 1095 n. 1. Sufficient use of reason required for consent to marriage

• Note: The Catholic University of America published translations of the eleven Rotal sentences that served as sources for 1095 n. 1 in Jurist 54 (1994) before the Holy See forbade further translations.

1983 CIC 1095 n. 2. Grave defect of discretion of judgment concerning marriage

1983 CIC 1095 n. 3. Incapacity to assume essential obligations of marriage

1983 CIC 1096. Ignorance

1983 CIC 1097. Error of person

1983 CIC 1098. Fraud

1983 CIC 1099. Error concerning substance of marriage

1983 CIC 1100. Knowledge or opinion of nullity does not necessarily exclude marriage consent

1983 CIC 1101. Simulation

Scholion on Pre-Nuptial Agreements

Required readings:

• Peters' Blog, 18 feb 2014, here. ▪ Pre-nuptial agreements should be assessed on their content not on their genre.

1983 CIC 1102. Conditional consent

• Note: CCEO 826 invalidates marriage entered subject to any condition.

1983 CIC 1103. Force and fear

Background readings:

• PCLT (Castillo Lara), resp. ad dub. re Can. 1103 (23 apr 1987), AAS 79 (1987) 1132. ▪ Latin on-line here. Summary: Canon 1103 applies to non-Catholics.

1983 CIC 1104. Presence of parties and expression of consent required for marriage

1983 CIC 1105. Weddings by proxy

1983 CIC 1106. Use of interpreters at wedding

1983 CIC 1107. Consent presumed effective notwithstanding impediments and defect of form

Form

Title VII, Chapter V, Form of the celebration of marriage

Note: While some of my discussion of canonical form occurs in writings listed on this page most of my treatment of this issue appears at E. Peters, wbp Eliminating canonical form for marriage, here.

De Concordia 1108. Imposition of canonical form for marriage

Background readings:

• Francis (reg. 2013-), m.p. De concordia inter Codices (31 mai 2016), AAS 108 (2016) 602-606. ▪ Eng. trans. on-line here. Summary: Makes several textual changes to western canon law so as to bring about uniformity in matters involving Eastern Catholics, here, adding § 3 whereby presence of priest is required if wedding involves Eastern Christian.

De Concordia 1109. General qualifications of official witness

Background readings:

• Francis (reg. 2013-), m.p. De concordia inter Codices (31 mai 2016), AAS 108 (2016) 602-606. ▪ Eng. trans. on-line here. Summary: Makes several textual changes to western canon law so as to bring about uniformity in matters involving Eastern Catholics, here, clarifying requirement that at least one party belong to Western Church.

1983 CIC 1110. Personal ordinaries and pastors as official witness

1983 CIC 1111. Delegation of faculties to serve as official witness marriage

De Concordia 1112. Laity as official witness

Background readings:

• Francis (reg. 2013-), m.p. De concordia inter Codices (31 mai 2016), AAS 108 (2016) 602-606. ▪ Eng. trans. on-line here. Summary: Makes several textual changes to western canon law so as to bring about uniformity in matters involving Eastern Catholics, here, adding references to Canon 1108 § 3.

• USCCB, compl. norm re Canon 1112 (≠ mar 1990), here. ▪ Summary: Episcopal conference recommends that Holy See view with favor requests from US bishops to permit laity to witness weddings.

1983 CIC 1113. Prerequisites to special delegation

1983 CIC 1114. Verification of free status to marry

1983 CIC 1115. Preference for parishes where one party has contacts for wedding

De Concordia 1116. Extraordinary form of marriage

Background readings:

• Francis (reg. 2013-), m.p. De concordia inter Codices (31 mai 2016), AAS 108 (2016) 602-606. ▪ Eng. trans. on-line here. Summary: Makes several textual changes to western canon law so as to bring about uniformity in matters involving Eastern Catholics, here, adding § 3.

Omnium 1117. Subjects of canonical form for marriage

Background readings:

• Benedict XVI (reg. 2005-2013), m.p. Omnium in mentem (26 oct 2009), AAS 102 (2010) 8-10. ▪ Eng. trans. on-line here. Summary: Eliminates recognition of formal defection as exempting from the requirements of the canon.

1983 CIC 1118. Place of wedding

1983 CIC 1119. Liturgical books to be observed in marrying

1983 CIC 1120. Canonical form still required even if episcopal conference develops a rite of marriage

1983 CIC 1121. Recordation of weddings in place of wedding

1983 CIC 1122. Recordation of wedding baptismal registers

1983 CIC 1123. Notification of convalidation, nullity, or dissolution

Selected topics

Title VII, Chapter VI, Mixed marriages

• 1917 CIC 1060. Most severely does the Church prohibit everywhere that marriage be entered into by two baptized persons, one of whom is catholic, and the other belonging to a heretical or schismatic sect; indeed, if there is a danger of perversion to the catholic spouse and children, that marriage is forbidden even by divine law.

• 1917 CIC 1061. § 1. The Church does not dispense from the impediment of mixed religion, unless: 1.° Just and grave causes so urge; 2.° The non-catholic spouse gives a precaution to remove the danger of perversion from the catholic spouse, and from both spouses [there is a promise] that all children will be baptized only catholic and so educated; 3.° There is moral certitude the cautions will be implemented. § 2. These cautions are regularly required in writing.

• 1917 CIC 1062. The catholic spouse is bound by the obligation of prudently taking care for the conversion of the non-catholic spouse.

Omnium 1124. Requirement of permission for mixed marriage

Background readings:

• Benedict XVI (reg. 2005-2013), m.p. Omnium in mentem (26 oct 2009), AAS 102 (2010) 8-10. ▪ Eng. trans. on-line here. Summary: Eliminates recognition of formal defection as exempting from the requirements of the canon.

1983 CIC 1125. Conditions for permission for mixed marriage

1983 CIC 1126. Role of episcopal conference

Background readings:

• USCCB, compl. norm re Canon 1126 (21 oct 1983), here. ▪ Summary: Norms of 16 November 1970 continue in force and should be renewed and republished for clarity.

De Concordia 1127 § 1. Special rules for Orthodox

Background readings:

• Francis (reg. 2013-), m.p. De concordia inter Codices (31 mai 2016), AAS 108 (2016) 602-606. ▪ Eng. trans. on-line here, changing words "ministri sacri" to "sacerdotis".

1983 CIC 1127 § 2. Possible dispensation from canonical form

Background readings:

• USCCB, compl. norm re Canon 1127 § 2 (21 oct 1983), here. ▪ Summary: Norms of 16 November 1970 continue in force except that ordinary of place of wedding can no longer dispense from canonical form.

1983 CIC 1127 § 3. Prohibition of double or divided ceremonies

1983 CIC 1128. Spiritual assistance to those in mixed marriage

1983 CIC 1129. Norms for mixed marriage apply to disparity of cult marriages as well

Title VII, Chapter VII, Marriage secretly celebrated

1983 CIC 1130-1133.

"Hard cases make bad law." Oliver Wendell Holmes, Northern Securities v US (1904).

Background readings:

• Peter Stravinskas, "Some questions about the Biden's 1977 Catholic wedding", Catholic World Report On-Line, (27 jan 2023), here.

Title VII, Chapter VIII, Effects of marriage

1983 CIC 1134. Conjugal bond

1983 CIC 1135. Spousal rights and duties

1983 CIC 1136. Parental rights and duties

1983 CIC 1137-1140. Legitimacy

Background readings:

• Edward Peters, "The canonical presumption of spousal paternity", Periodica de re Canonica 95 (2006) 307-342, pdf here.

Title VII, Chapter IX, Separation of the spouses

Article 1, Dissolution of the Bond

1983 CIC 1141. Ratified and consummated marriage is dissolved only by death

Required readings:

• Peters' Blog, 02 jan 2018, here. ▪ The 'absolute prohibition of divorce' alleged here could apply, at most, to consummated Matrimony.

• PCLT (***), "Il potere del Papa e il matrimonio dei battezzati" (11 nov 1998), Communicationes 30 (1998) 217-221. ▪ Eng. trans. on-line here. Summary: No power on earth, not even papal, can dissolve a ratified consummated marriage.

1983 CIC 1142. Papal dissolutions and the Petrine privilege

• Cong. for the Doctrine of the Faith (Ratzinger), doc. Potestas Ecclesiae (30 apr 2001), Enchridion Vaticanum 20: 402-423. ▪ Eng. trans. on-line here. Summary: Norms for seeking papal dissolution of marriage in favor of the faith, replacing 1973 norms.

Required readings:

• Edward Peters, "Is the 'Petrine Privilege' an exception to Church teaching on the indissolubility of marriage?", Catholic World Report Dispatch (16 Jan 2018), here.

Comment: While I distinguish between “Petrines” in cases of non-sacramental marriages and “papal dissolutions” in regard to non-consummated marriages most canonists do not make that distinction and Canons 1142 and 1150 seem unconcerned about it as well, perhaps because the sole authority acting in both cases is the Roman Pontiff. Dissolution of non-consummated Christian marriage consequent to religious profession (see 1917 CIC 1119) did not survive into the 1983 Code but is assured by Trent.

1983 CIC 1143-1147. Pauline privilege

• I Corinthians VII: 12-15 (RSV). To the rest I say, not the Lord, that if any brother has a wife who is an unbeliever, and she consents to live with him, he should not divorce her. If any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him. For the unbelieving husband is consecrated through his wife, and the unbelieving wife is consecrated through her husband. Otherwise, your children would be unclean, but as it is they are holy. But if the unbelieving partner desires to separate, let it be so; in such a case the brother or sister is not bound. For God has called us to peace.

Required readings:

• Edward Peters, "Is the 'Pauline Privilege' an exception to Church teaching on the indissolubility of marriage?", Catholic World Report Dispatch (10 Jan 2018), here.

1983 CIC 1148-1149. Special missions cases

1983 CIC 1150. "In a doubtful matter the privilege of the faith possess the favor of law."

Article 2, Separation with the bond remaining

1983 CIC 1151-1155.

Background readings:

• Edward Peters, "Do Catholics need ecclesiastical permission to divorce?", Fellowship of Catholic Scholars Quarterly 40/1-2 (Spring-Summer, 2017) 61-64, pdf here.

Title VII, Chapter X, Convalidation of marriage

1983 CIC 1156-1160. Simple convalidation

1983 CIC 1161-1165. Radical sanation

The nullity process

• Francis (reg. 2013-), m.p. Mitis Iudex (15 aug 2015), AAS 107 (2015) 958-970. ▪ Eng. trans. on-line here. Summary: Major reorganization of matrimonial procedures, including elimination of mandatory second instance and introduction of factors deemed sufficient to allow 'expedited hearing' of cases.

• The Holy See's interest in American nullity procedures pre-dates the famous 'American Procedural Norms' of 1970. Consider, e.g., Sebastian Bach Smith (American priest, 1845-1895), The Marriage Process in the United States (Benziger, 1893) 5, wherein: "Down to the year 1884, marriage disputes, even those involving the validity of marriages already contracted, were, as a rule, decided, with us, by the bishop, or also by rectors of parishes, and sometimes even by assistant priests, without any judicial formalities whatever. This mode of procedure was naturally open to serious inconveniences, and was calculated to imperil, in many cases, the stability and indissolubility of marriages. To obviate these disadvantages, the [Sacred Congregation for the Propagation of the Faith], in 1884, issued the instruction Causae matrimoniales for this country.” The procedures Smith references are available here: [Sacred Congregation for the Propagation of the Faith], instr. Causae matrimoniales (1884), in P. Gasparri & J. Serédi, eds., Codicis Iuris Canonici Fontes, in 9 vols., (Typis Polyglottis Vaticanis, 1923-1949) VII: 479-492, Doc. 4901.

See also [Sacred Congregation of the Council], dec. Ne temere (2 aug 1907), in P. Gasparri & J. Serédi, eds., Codicis Iuris Canonici Fontes, in 9 vols., (Typis Polyglottis Vaticanis, 1923-1949) VI: 867-870, Doc. 4340. See generally, Charles Cronin (English priest, 1871-1942), The New Matrimonial Legislation [1908], 2nd ed., (Washbourne/Benziger) 190.

Other materials

Lecture resumes here.