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Dr. Edward Peters 

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Updated

9 January 2018

Marriage Sacrament and Law (AT 746)

SHMS

Students


Notices

Next reading assignments:

 

Tridentine canons.

Catechism of the Catholic Church (1992/1997) 1601-1666 and 2331-2400.

Arcanum divinae sapientiae (10 feb 1880).

Gaudium et spes (7 dec 1965) nn. 46-52.

 


General remarks

 

 

 

 

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

 

Class meets: Mondays 6:00 PM to 9:15 PM, Room 112.

 

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

 

  the Catechism of the Catholic Church (1992/1997) esp. 1601-1666 and 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;

 

  the Scriptural and magisterial documents listed below.

 

Class format: Interactive lecture.

 

Course grading: Two exams consisting of multiple choice, true/false, fill-in-the-blank, and short answer questions.

 

Additional remarks

 

Course Description (SHMS Bulletin): 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. (Prerequisites: MNS 300, AT 780, or AT 550).

 

This course focuses directly 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 for information and inspiration in coming years.

 

Other Resources

 

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

 

  Perry Cahall, The Mystery of Marriage: a theology of the body and the sacrament (Hillenbrand Books, 2016) 490 pp.

 

  R. Dodaro, ed., Remaining in the Truth of Christ: Marriage and Communion in the Catholic Church (Ignatius, 2014) 324 pp.

 

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

 

  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’s Matrimonio & Famiglia nei Documenti del Magisterio: corso di teologia matrimoniale (1989).

 

  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.

 

  Pietro Gasparri (Italian prelate, 1850-1934), Tractatus Canonicus de Matrimonio [1892], in 2 vols., 9th ed. (Typis Polyglottis Vaticanis, 1932).

 

  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.

 

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

 


Orientation

 

Terms:

  • Marriage vs. Matrimony

  • Marriage vs. Wedding

  • Divorce vs. Annulment

  • Divorce vs. Dissolution

Relationship between doctrine of marriage and canon law of marriage.

 

Sine matrimonio nullum Matrimonium.

 


Sacred Scripture

(RSV)

 

 

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....'

 

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.

 

Deut. XIV: 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...

 

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.

 

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.

 

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.

 

I Corinthians VII: 12-15. 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. 

 


Magisterium

 

Conciliar

 

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.

 


Magisterium

 

Papal

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.

 

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.

 

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.

 

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.

 


Teaching documents

 

Other

 

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.


Canon Law

Canon 1055. § 1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature 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. For this reason, a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament.

 

Canon 1056. The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament.

  • CCEO 776. § 1. The matrimonial covenant, established by the Creator and ordered by His laws, by which a man and woman by an irrevocable personal consent establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the generation and education of the offspring. § 2. From the institution of Christ a valid marriage between baptized persons is by that very fact a sacrament, by which the spouses, in the image of an indefectible union of Christ with the Church, are united by God and, as it were, consecrated and strengthened by sacramental grace. § 3. The essential properties of marriage are unity and indissolubility, which in a marriage between baptized persons obtain a special firmness in virtue of the sacrament.

Canon 1057. § 1. The consent of the parties, legitimately manifested between persons qualified by law, makes marriage; no human power is able to supply this consent. § 2. Matrimonial consent is an act of the will by which a man and a woman mutually give and accept each other through an irrevocable covenant in order to establish marriage.

 

Canon 1058. All persons who are not prohibited by law can contract marriage.

 

Canon 1059. Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage.

 

Canon 1060. Marriage possesses the favor of law; therefore, in a case of doubt, the validity of a marriage must be upheld until the contrary is proven.

 

Canon 1061. § 1. A valid marriage between the baptized is called ratum tantum if it has not been consummated; it is called ratum et consummatum if the spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh. § 2. After a marriage has been celebrated, if the spouses have lived together consummation is presumed until the contrary is proven. § 3. An invalid marriage is called putative if at least one party celebrated it in good faith, until both parties become certain of its nullity.

 

   

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