MARRIAGE LEGISLATION (CANON LAW)

The valid law of Matrimony found in the 1983 Code of canon law, is significantly different from that of the 1917 Code. The inspiration for the change derives from the documents of Vatican Council II. The Pastoral Constitution on the Church in the Modern World (Gaudium et spes ) which proclaimed marriage to be a covenant or foedus, ordered for the mutual help of the spouses and for the procreation and education of children. Other important documents, such as the Decree on Ecumenism (Unitatis redintegratio ), which acknowledged the existence of Christian churches and ecclesiastical communities outside of the Catholic Church, the Declaration on Religious Freedom (Dignitatis humanae ), which upheld the value of the individual conscience, and above all, the Dogmatic Constitution on the Church (Lumen gentium ), which declared the universal call of the faithful to holiness, no matter what their state of life, each had its specific impact on the 1983 legislation on marriage. Each took a major step toward the integration of canonical traditions with the vision of the council. For detailed information about the 1983 law on marriage, a commentary should be consulted, but the spirit of the 1983 norms can be summed up in a few points.

Significant Changes. The law has been inserted into a broader theological context. Since the 12th century, canon law has used the model of Roman consensual contract to define marriage. Now the principal model is Yahweh's covenant (alliance) with his people, or Christ's union with his Church. The idea of "religious covenant" dominates the definition of marriage and provides an important hermeneutical principle for the interpretation of the new body of laws: their full and correct meaning can be grasped only if they are read and explained in their proper theological context. Although the Code continues to use the term "contract," it no longer regards it as an adequate description of Christian marriage.

The doctrine of a hierarchy of ends has been abandoned. Previously, the law viewed procreation and education of children as the primary ends of marriage; mutual help and remedy of concupiscence were its secondary purpose. In practice, however, it gave much greater importance and support to the former than to the latter. The new code presents marriage as ordered to the same ends, but it does not grant priority to either of them, although interestingly, it does treat of mutual help first (c.1055). This shift in the understanding of ends echoes throughout the marriage canons: the importance of a close union, consortium, between the spouses has been given new prominence in the legal order.

There is a new openness in the law towards the findings of empirical psychology. This is most obvious in the rule that those who lack the capacity, due to psychological causes, to fulfill their matrimonial obligations cannot contract validly, (cf. c. 1095n.3). While canon law is competent to define the obligations, it has no competence to discover the psychological causes of the inability to fulfill the obligations. For this it must turn to the science of medicine.

The law is animated by new ecumenical spirit. Mixed religion is no longer an impediment to marriage, hence no dispensation is required for a Catholic to marry a non-Catholic Christian, although a more easily obtainable permission is still necessary. The Catholic party alone should make the promise that the Children will be educated in the Catholic faith, but he or she is bound by such a promise "as far as it can be done" (pro viribus ), that is, without doing violence to the conscience of the non-Catholic partner. Further, in the case of a "mixed marriage" the local ordinary can grant a dispensation from the canonical form, provided the marriage will be celebrated in some public form. The invalidating impediment of "disparity of cult" (marriage between a Catholic and a non-baptized person) remains, but once the necessary dispensation has been granted, analogous accommodations can be made regarding the baptism and education of the children and the celebration of the marriage.

The new law is simpler than the old, and the number of impediments have been reduced. There are no prohibiting impediments any more; 12 invalidating impediments remain, but the scope of several of them has been diminished. The dispensing power of the local ordinary has also been extended. The rules for the celebration of the marriage (e.g., place and time) are now much simpler; and it is easier to delegate a priest stranger to the parish or the diocese to receive the consent of the parties.

In general, the 1983 code represents a shift towards a more personalistic and less institutional approach to marriage. The old law was conceived with the goal of protecting the indissolubility of marriage even if that meant little attention would be paid to the personal disposition of the parties, such as their mistaken knowledge, their acting under duress, or their lack of maturity. The new law continues to uphold the permanency of marital commitment, but it goes a long way toward providing remedies in case of misguided or defective consent.

The complexity of the procedural norms in nullity cases have been reduced. Provided the diocesan tribunals take advantage of the new rules, the "trials" can be made more expeditious. The law allows the judges to give more weight to the depositions of the parties, and in exceptional circumstances it allows one (not three, as usual) judge to conduct the case and to decide it. It also permits the substitution of a "review" of the first sentence instead of a formal trial by an appellate court.

Remaining Uncertainties. On balance the 1983 code as a whole is a significant improvement over the 1917 code. Some notable problems, however, remain. Christian marriages are not distinguished with sufficient clarity from natural marriages. The result is that the unique character and effects of the sacramental covenant between the parties, and between God and the couple, remain obscured. This leads to some ambivalence, e.g., the code states that all marriages are indissoluble, yet it provides ways and means to dissolve any natural marriage "for the sake of the faith"; methodologically it would have been better to speak of the indissolubility of the Christian covenant only.

The drafters of the new law did not find a solution for the case of the baptized unbelievers. According to sound theology, faith is necessary for the valid reception of a Sacrament. According to canon law, the reception of the Sacrament is necessary for the valid marriage of baptized persons, believers or not. This divergence between doctrine and law creates an absurd situation: the Church appears to be forcing the Sacrament on unbelievers.

The code displays an uneasy and precarious compromise between the principles of medieval metaphysical psychology and the findings of modern empirical psychiatry. Scholastic philosophy based on Aristotle's theories assumes a much sharper distinction between the "faculties of the soul" (that is, between the mind and the will) than the modern student of the human psyche accepts. Yet, the validity of a marriage must be determined, to a significant extent, by applying the ancient conceptions. The result is an uneven administration of justice.

There is still more centralization than necessary. For no apparent theological reason, most of the ordinary cases of the "privilege of the faith" cannot be handled by the diocesan bishop but must be submitted to the Holy See, which usually means expense and delay. The law offers no assurance of the speedy resolution of nullity cases, and the parties have no remedy in case of delays. The result is again an uneven administration of justice, depending on local circumstances. In general, the procedure still remains cumbersome, demanding an outlay in personnel, energy, and money that many churches, especially in developing countries, can ill afford.

Bibliography: j. p. beal et. al., eds. The New Commentary on the Code of Canon Law (New York 2000). t. mackin, Marriage in the Catholic Church: Divorce and Remarriage (New York 1984). r. malone and j. r. connery, eds., Contemporary Perspectives on Christian Marriage: Propositions and Papers from the International Theological Commission (Chicago 1984). l. orsy, Marriage in Canon Law: Text and Comments, Reflections and Questions (Wilmington, Del. 1986), b. a. siegle, Marriage According to the New Code of Canon Law (New York 1986). l. wrenn, Annulments (4th rev. ed. Wash., D.C. 1983). i. gramunt, j. hervada and l. wauck, Canons and Commentaries on Marriage (Collegeville 1987). l. wrenn, The Invalid Marriage (Washington, DC 1998). r. m. sable, ed. Incapacity for Marriage: Jurisprudence and Interpretation (Rome 1987).

[l. m. orsy/eds.]