Marriage and Indissolubility: a Historical Note
Recently in an American diocese, a paraplegic, who was presumably impotent, was refused a Roman Catholic marriage by the parish priest unless the future bridegroom could produce a medical certificate declaring him to be capable or at least, probably capable, of having sexual intercourse. Otherwise, the priest stated, such a marriage could not be canonically or validly performed.
The priest was technically correct, but the local bishop had enough compassion and common sense to find a practical way out of the dilemma: one just does not know about these things until you are married (canonically, the consent exchanged between a man and a woman makes the marriage, and the first act of intercourse "perfects" it); if there is the slightest doubt about the ability to complete the marital act, it should be resolved in favor of the marriage. If the facts prove otherwise, there would be plenty of time later on for one or the other party to seek a church annulment because of absolute impotence which is complete and, presumptively, dates back to the beginning of the marriage (consummation).
But the ruckus created by even the thought that "it was an erection" (as one radio caller put it) which created a Catholic marriage, shows that perhaps even Catholics have been influenced by the loose sexual ethics and easy divorce syndrome in American society. This case raises the very important question of the nature and meaning of marriage for Catholics.
American family law today faces the very same question: what is the nature of marriage? If marriage is but an emotional-love relationship between two human beings, why not permit homosexual or lesbian marriages—something forbidden explicitly or implicitly by the cases and codes of all 50 states? Modern case law seems to skirt this issue by simply defining marriage as "a union between a man and a woman" (e.g., James v. Hallahan, Kentucky, 1973).
But this is to beg the question at issue. We know that marriage is a relationship between humans, hopefully loving and enduring. But a relationship between two people of the same sex? Or between two people, one of whom initially (ab initio) cannot perform sexually? The older cases hint that, somehow, the marital relationship is specified by sexual intercourse for the purpose of procreation. Therein lies, as lawyers put it, the fundamental state interest in promoting marriage between heterosexuals and not, for example, between homosexuals. Society wants to encourage the heterosexual relationship because its whole future is intimately bound up with procreation, family, children, etc. The state therefore orders, protects and promotes this relationship because of that reason and that only. Other forms of relationships (homosexual, unmarried, and even those of sterile or aged couples) are of little interest to the state.
Divorce Becomes A State Concern
This evolution in legal thinking is already present in countries like Australia and states like California. In these places, there is in place a summary procedure for couples who have no minor children, have been married less than two years and have no community assets over $5,000.00. In such a case, they have only to fill out a simple form at the courthouse, wait a short time and they are automatically divorced. No other procedure, no hearing, no lawyers. The interest of the state does not reside with these people. It is only with those married couples with minor children that the heavy machinery of the state comes into action, both in California and Australia, in order to protect and promote the welfare of the minor children.
Now all this may seem terribly unfeeling and legalistic. But these roots of formal marriage go way back in Western society—indeed, in every society whose written legal documents have come down to us; Christians only picked them up from the Roman and Germanic law and refined them here and there in accordance with their Christian doctrine.
One of the difficulties of an analysis of marriage for the modern legal mind is that today we tend to look at marriage as a contract and not as an institution (the two concepts, of course, are not mutually exclusive). A cursory glance at the U. S. Supreme Court's views of marriage in Danforth and Eisenstedt v. Baird will reveal this clearly.
Although this distinction seems terribly academic—marriage as an institution and/or as contract—the reality is that there is a telling difference. To assimilate marriage to an institution (couple) rather than to a contract (individuals) is, in reality, to address both the question of the nature of marriage and its indissolubility. For if marriage is an institution by which a man and woman become a couple; if it is a union of two persons, who by mutual consent enter into a covenant greater than themselves for other purposes (faithful love, children, the future), then divorce is no longer the affair of the individuals involved. In fact, in such a scheme, divorce is not possible, or at least, much more difficult to conceptualize.
In essence, this was the view of the primitive Church, which strengthened the original marital institution created by God by the notion of mysterion or sacrament in Christ. This latter element strengthened—but did not create—the reality of the marital institution. Absolute indissolubility enters exclusively in the marital relationship between Christians, but the nature of marriage is not affected, since, if it is a covenant, divorce is problematic. In referring to the divorce decrees issued by Moses to the Israelites, Christ simply said, "It was not so from the beginning."
Roman Marriage Was A Contract
If, on the other hand, marriage is seen essentially as contract, divorce becomes possible for any number of reasons or for no reason at all (e.g., failure of performance, impossibility or unwillingness of performance, mistake, mutual rescission, etc.). The legitimacy of divorce flows inexorably from this premise of contractual relationship —just as in any other contractual relationship. The Roman law saw marriage as essentially contract—perhaps less than contract—which could be annulled at any time by the will of one or both of the parties for any or no reason at all, with little formality.
Although the early Church had none of these rather precise legal formulations, the reality, which it lived in contradistinction to the prevalent Roman notion of marriage, makes it abundantly clear that the notion of marriage as covenant is well-founded in the Church's living and practice. In distinction, modern American family law has returned to the Roman contractual definition of marriage in the past forty years.
As late as 1962, a scholar on Roman law could make this statement: "From a legal point of view marriage is to us a status, the creation and termination of which are closely regulated by law, and which not only founds a number of rights and duties between the parties but also to some extent affects the relationship of the parties to the rest of the world. A Roman marriage on the other hand, was very largely a social fact, about the creation and termination of which the law had very little to say and which had almost no effect on the legal condition of the parties" (Nicholas, An Introduction to Roman Law, p. 80). After Eisenstadt (1972) Danforth (1976) and Roe (1973), the first part of this quote is untrue; the second part of the quote, with a few additions, is largely true of American law as well (1982).
Modern family law, at least up to 1964, was tributary of both Roman and Canonical law regarding marriage as a consensual relationship or covenant entered for and with the specificity of sexual intercourse for procreation. Vatican II, perhaps, explained this balance best of all: marriage is a loving, permanent relationship between a man and a woman, specified by conjugal love, which is open to the procreation and education of children within a family.
Now this, I will contend, is the heart of marriage as it has come down to us in American law from its Roman, Germanic and Canonical roots. In Western law, the nature of marriage is both loving relationship and institution for the future (children).
What Roman law meant by justae nuptiae (marriage) was that contractual act by which a society of one man and one woman is established for purposes of procreation. From this perspective, Roman law was original in the ancient world, and this originality has persisted in modern American codes of family law.
Roman Law Influenced Western Law
As a durable society, Roman marriage was essentially monogamous. On the other hand, the Oriental codes of the day knew and practiced polygamy. Rome made no such allowances in its legal doctrine. Monogamy was absolute. In fact, for Roman law, monogamy appeared so natural that the jurists did not bother to formulate the doctrine. Roman repression of adultery and bigamy was but a translation of this moral reprobation.
If we pass from the state (status) of marriage to the act, which created it, the originality of Roman marriage appears even more clearly. It is marked by a principle to which the Romans remained faithful all during the centuries. It appears within the earliest codifications of Roman law on marriage and will come to be eclipsed only after the barbarian invasions of the Fourth and Fifth Centuries, A.D. This principle held that marriage was always concluded by an act of the will on the part of both parties at the same time in a mutual exchange.
On the other hand, Oriental codes and marital traditions (including the Jewish) involved long engagements with legal force, buying and selling of brides, notions of womanly virginity, etc. In contrast to these traditions, Roman consent was simple, clear, public and mostly between "almost" equals (men and women).
These two traits of Roman marriage (monogamy, marriage by consent alone) were unknown in the ancient world but were taken up and adopted by the Christianity of the later Empire as well as by the canonical literature of the Middle Ages. From there, as we shall see in a moment, Roman law came to influence all Western law of marriage.
In marriage, in both the Roman and Christian traditions, the essential juridical act was the free and mutual consent of the parties. The only thing to be verified was the sufficiency of the consent to establish the bond. In Classical Roman law as well as in the law of the later Empire, it was necessary that such consent be externalized in some ceremony or act in order that the marriage be publicly known and recognized in order to distinguish it from contubernium (a sexual encounter) and concubinage (informal living arrangement among those incapable of marriage, e.g., slaves). Such a mutual consent, therefore, had to be mutual and external in order to make such a determination.
During its earliest stages, the Church was more dependent on Roman law than contributory. The moral ideas of Christianity in certain domains in family law exercised an undeniable influence. But a true body of Canonical marital law did not exist in the fourth and fifth centuries, which could have been in competition with Roman law. The body of Church law which in fact did slowly evolve around the sixth century was more dependent on Roman consensualism and only later on could it affect marital legislation as the influence of the Church became dominant during the Middle Ages.
Germanic Customs Differed
But there were already some indications in patristic literature in the Fourth and Fifth Centuries, which had some influence later on. The patristic testimonies on consensualism were abundant. These were necessary in order to show the reality of the marriage of the Blessed Virgin. But there were other elements as well.
The patristic accent was put on the external ceremonies (blessing, exchange of rings, written authentication by the local bishop, etc.), which were necessary to avoid clandestine marriages and concubinage. For this reason, the dowry and the religious blessing became important for Christians.
On the other hand, while emphasizing consensualism, the Christian fathers accorded the Copula Carnalis (intercourse) an importance, which was absent in Roman law. Without making it a necessary part of the bond, the Fathers attached great importance on the first intercourse. The Canonists of the Middle Ages would attach much importance to this as well.
Why was this so? Because marriage was now a sacrament, symbol of Christ's union with his bride, the Church, which was permanent, loving, fruitful and indissoluble. Christian marriage, in other words, is symbolic of a greater union, of which this earthly union was a meager analogy. Marriage is sign and symbol; it is sacrament.
The Roman law, of course, had emphasized the notion that marriage existed for procreation. In fact, fruitlessness was one of the earliest reasons for divorce in both the Roman Republic and the Roman Empire. But like modern codes, impotence was a reason for divorce. The difference in modern American codes is that absolute impotence from the beginning of the marriage makes it a case for annulment, not divorce, which is due directly to the Christian influence on marital legislation from the Middle Ages.
The Copula Carnalis (intercourse) took on an important dimension in Germanic marriage which it never had at Rome, but which persisted for centuries in countries of Germanic customs or in countries influenced by them.
In medieval law, for instance, marital authority existed from the Trauung (engagement, or the beginning of marriage) and the husband could from that moment administer the goods of his wife. But only the Copula juridically creates the spousal community. Only from this moment is marriage indissoluble as explained by the Canonists. More of this in a moment.
Such ideas show clearly how different the Germanic customs were from those of Roman law but are close to the themes of patristic literature, specifically in reference to the Copula. These customs were to prevail in medieval Canon law.
Why then did the Christian community give such importance to initial intercourse? The answer lies, not just from the Germanic influence on Canon law, but above all from the Jewish influence. The influence of the Talmud during the first five centuries of our era stated that a man could "acquire" or "sanctify" a woman in one of three ways (Mishna Quiddushin 1.1, Niddah 5.4): by money, by document or by intercourse. They all were valid marriages. Marriage by intercourse was morally inferior, but was an old established mode of marriage.
One can see this marriage by intercourse in the teachings of St. Paul (I Cor. 7:12 ff.) concerning the conversion of two spouses. Paul urges that, though the bond is dissolved, the unbeliever, if he is willing to stay on, should be allowed to do so. Why does he consider the bond dissolved? According to Rabbinic doctrine, a convert was a new being in so real a sense that his previous relationships were all gone. Paul continues this "newness" of being by baptism in Christ.
Suppose, for example, a family converted. In principle, the father could marry his daughter, the mother her son, a brother his sister. They were simply no longer the same persons as before. Since the pagans were apt to view this as an excuse for incest, the Rabbis and St. Paul imposed limitations (see Paul's rebuke to the Corinthian man who abused this freedom and married his stepmother).
How Did The Canonists Synthesize?
If this accounts for Paul's treatment of the convert as untied from all former relationships of life, what of his exhortation not to dismiss the non-converting spouse prepared to stay on? It would be a valid marriage—concluded by intercourse. When a pagan couple became Jewish, though their original marriage was wiped out, in most cases they remained together, intercourse reconstituting the marriage, or more precisely, making a fresh marriage between them. The same happened with Christians in their new birth in Christ (sacrament). Paul expressly refers to this mode of marrying: he explains that when, in accordance with his counsel, convert and non-convert continue as spouses, the latter is "sanctified" by the former. To "sanctify," quiddesh, is a technical word of the conclusion of marriage by intercourse. She makes him her husband once more by "sanctifying" him in intercourse. Thus two Christians who marry always do so as a sacrament between believers, and their intercourse "sanctifies," or concludes, the union.
Such were the complex data, which came to influence the Classical Christian medieval syntheses of Roman law. How did the twelfth century Canonists synthesize all these divergent elements into an integral whole?
First, the Jewish influence (and that of St. Paul) on the influence of intercourse "sanctification" and its symbolic conclusion of marriage has been almost entirely neglected and forgotten. It revives somewhat in the notions of Christian marriage as sacrament and symbol of the indissoluble union of Christ to the Church. But the essential symbol of intercourse, the specificity of the marital union, has been almost lost in the Christian tradition. Perhaps it can be revived in the renewed sense of the "new birth" of the sacrament of Baptism. The newness of Christian conjugal union must also be seen in that light as well.
Indissolubility Is Distinct
Secondly, these syntheses were not faithful to the Roman tradition, in that they concluded marriage in various stages. Or at least, these medieval syntheses tried to join consent and Copula in ways, which were artificial and not understood. In other words, the "why" of the necessity of the Copula for the perfection of Christian marriage was marked but not explained. Thus, we have the famous distinction of the Canonist Gratian (+ 1142) between matrimonium initiatum (exchange of consent) and the matrimonium perfectum (sexual intercourse), which happens only after the marriage and makes it indissoluble. In fact, this doctrine of the Bolognese Monk appears as a simplification as compared with the Germanic notions of the many moments in the formation of marriage. This dualist Canonical solution, while respecting the consensual notion of Roman law, also conserved the Germanic and Jewish notions of the Copula Carnalis, whose influence in the law grew from the latter part of the Roman Empire, for reasons not entirely understood by the Canonical authors.
This Germanic doctrine marked an essential moment in the history of Canon law in this matter. The first decretalists (Canonists) (e.g., Bandinelli) were faithful to this tradition and inspired the now famous distinction between the matrimonium ratum (consent) and matrimonium consumatum (intercourse). The first resulted from the words of exchange between the couple and the second from the Copula Carnalis (intercourse), which held that, although the marriage bond came into being from the consent (Roman consensualism), Christian indissolubility was tied only to the second (intercourse), because only then is the Christological symbolism complete.
Matrimonial consensualism won the day throughout the Western Canon law, which did not, however, come about without difficulties. The Roman Church, of course, was favorable to this view, and Gratian in his magisterial work, the decretum, assembled many texts in its defense. But the second part of this work assembled the contrary authorities, as well as from the practice of the High Middle Ages, which gave the Copula a great importance. His solution was simple: "Marriage is begun by consent but it is perfected by intercourse." The doctrine of the Canonist Huguccio will prevail where the common consensus of the couple creates the bond (ratum), but only the consummation of the marriage will render it absolutely indissoluble (consumatum).
The non-consummation of marriage retained its importance canonically in order to authorize, in appropriate circumstances, the dissolution of the bond. Alexander III permitted this for entering religion. The other cause would be affinity. Papal authority knew of no other causes at the time. It was extended to other causes later on. This came to be known as the "Pauline privilege," but which completely misunderstood the teaching of St. Paul, as we have seen above.
Aside from this curious development, it is easy to see how the ancient Roman simplicity triumphed, namely that the marriage bond is created by the exchange of consent alone.
This consensual view, as the essential legacy of the Christian view of marriage, was incorporated into American law, as well as in case law. For instance, a California case of 1918 states: "Consent is the pervading principle of the law. Marriage is derived from the consent duly authenticated independent of the conjunctio corporum (intercourse); publicity is the publication of that consent; and that consent must go right up to the moment of their taking up life as husband and wife." This is almost a repetition of the traditional Romano-Canonical doctrine.
Although consent alone constitutes the marriage duly publicized before a state official, still the element of consummation plays an important role. Each party must be capable of "consenting and consummating the marriage" (California Civil Code, par. 4110), and this is mentioned twice in that same section. In fact, a decree of annulment can be issued if either party at the time of marriage was "physically incapable of entering into the marriage state, and such incapacity continues, and appears to be incurable" (Ibid.) This too is the persistence of the Canonical Teaching.
The Christian Legacy Is Followed
Civil divorce, of course, means dissolution of the bond of marriage for cause arising after marriage, whereas an annulment proceeding is maintained on the theory that for some cause existing at the time of marriage, no valid marriage ever existed. To constitute grounds for annulment of the marriage, fraudulent intent not to perform an essential duty vital to the marriage state need not exist in the case of physical impossibility (absolute impotence). The test of the California case law is the ability or inability for copulation, not fruitfulness; the inability need be only for normal copulation, not partial, imperfect, unnatural or painful copulation.
In other words, the traditional Romano-Canonical concept of the distinction of matrimonium ratum et consumatum is kept for vital legal effects of civil marriage. Since only the consent constitutes the marriage contract duly solemnized, the discovery of the physical incapacity for copulation later on makes the marriage voidable, not void, and a declaration of judicial intervention (annulment) is necessary. This follows the Canonical teaching of the declaration of nullity given for similar causes in the Canon law. The difference is that a Church annulment declares the marriage void from the beginning, since the bond could not and cannot be perfected.
It is also noteworthy that, just as in the Romano-Canonical doctrine, the exchange of consent in the California code is before a legally authorized officer, not by such an officer. The California code simply states that the parties must declare that they take each other for husband and wife before such an officer. The only requirement is the necessity for such an objective declaration before a legal officer so designated. This is true in all state codes. This follows the Christian legacy that it is the couple who bestow marriage on each other by their mutual consent, not the official or the priest.
It should now be clear how dependent the American civil codes, such as that of California, are upon the ancient Romano-Canonical doctrine. The triumph of the Roman concept of marriage, largely facilitated by its Canonical development, is therefore clear. It is so totally accepted today in our civil codes that it appears to us today as almost "natural." But originally, it was not so. The comparative history of ancient law shows us that it was nothing of the sort. In fact, the teaching of Roman law was an exception in the ancient world. But its judicial value, in spite of the meanderings of the Middle Ages, ended by becoming the basic principle of American matrimonial law.
The Germanic and Canonical traditions also had their influence by emphasizing the specificity of marriage, that is, sexual intercourse. In other words, the nature of marriage is a voluntary established relationship between a man and a woman creating a community for the purpose of having and educating children. The essence of marriage in Western law is relationship (consent), specified by intercourse for love and life (children).
Children Are Our Future
Perhaps none of this will comfort the original paraplegic and the critics of Christian and what has been to date Western marriage. But the ability to have and participate in sexual intercourse involves much more than "an erect penis." It involves our very understanding of the nature of marriage and what it means for the future of any society. Children are our future. Marriage essentially has something to do with that dimension. Whatever other, informal sexual relationships can be tolerated by the law is up to the people to deduce (e.g., Marvin v. Marvin). But marriage between heterosexuals is and must be favored in law because the future of society is found therein. From both a Christian and a secular perspective, the specific relation of marriage is its conjugal dimension, because it involves the oneness of the couple by and through sexual intercourse open to love and life. That is also why Vatican II defined marriage as a union between a man and a woman specified by conjugal love.
© The Homiletic & Pastoral Review, Ignatius Press, 2515 McAllister St., San Francisco, CA 94118, 1-800-651-1531.
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