§ 180. Marital Jurisdiction

In the early times of the Church, and for several centuries afterward, marriage had only civil significance and was subject to civil jurisdiction, without any direct relation to the Church. The Christian contracted marriage according to the existing civil laws, and that marriage, if only it was consonant with the prescriptions of the law, if it was iustum matrimonium, the Church recognized without any objection. Alongside this civil marriage there also existed church marriage, which the parties contracted before the bishop and priests.[1] But such a marriage had no civil consequences whatsoever in the Greco-Roman state, and was regarded before the civil court as though it did not exist. For this reason, in order that it might also have civil significance, it had to be performed according to the prescriptions of civil law, independently of church marriage. In this state of affairs, the Church herself recommended civil marriage to her faithful for the sake of their proper civil relations, and only afterward required of them that they come to the priests, that they might bless their marriage.

The first step toward the rapprochement of civil marriage with church marriage was taken in the first half of the sixth century by the emperor Justinian, with regard to the marriage of persons of the middle estate in the Greco-Roman state. Leaving in place, with regard to the marriage of persons of the higher estate, the earlier formalities of civil law, and, with regard to the lower estate, allowing them to marry as before and without formalities, Justinian permitted persons of the middle estate to go to some church and there declare to the church ekdikos their wish concerning marriage. This ekdikos would then summon three or four priests of the same church, and would draw up a written document about it, which, after recording the day and everything else pertaining to the marriage, would be signed by him, the spouses, and the priests. This document, which from that day was to be kept in the church treasury, served as proof that the marriage had truly been contracted, and this marriage had the same significance as a marriage contracted before the civil authority.[2] This law of Justinian, although it subjected the contracting of marriages to the oversight of the Church only in part, nevertheless opened the way toward that rapprochement of civil marriage with church marriage which, by the very essence of marriage itself and by its Christian significance, had to come about. Threatening penalties for public violation of natural and civil rights, the laws of the state have no power at all against secret violation of those same rights, especially in married and family life, which is more or less hidden from the oversight of the state and society. If the laws of the state often have need of religious sanction for their proper execution, they have such need inescapably in marital and family relations, which depend chiefly on the conscience of man. For this reason the pagan lawgivers of ancient times also, in regulating marital and family relations, did not confine themselves to the ordinance that marriage must be contracted according to the civil laws established for it, but required that it also be consecrated by religion, and performed with the established religious rites.[3] This, moreover, was the case in the Roman state of the most ancient period; but this gradually afterward fell out of use. When the former strictness of morals, which religion maintained in marriage, began to decline in the state, the existing laws began to seem burdensome, and were therefore abandoned by the lawgivers who followed. Only Christianity was able—and this only after several centuries of its existence and its influence upon the world—to restore marriage to the position to which nature had appointed it.

After that law of Justinian, church marriage gradually began to spread everywhere in the Greco-Roman state,[4] until at last, in 893, the emperor Leo the Wise issued a special law by which he ordained that only that marriage which the Church blesses should be considered a lawful marriage.[5] Soon after this, this law was extended also to the lower estate, which had not been included in that law of Leo.[6] The Patriarch of Constantinople Athanasius and the emperor Andronicus Palaeologus once for all prescribed that no marriage might be contracted without the knowledge and blessing of the parish priest concerned.[7] Thus established, Christian marriage had within itself the significance of both church and civil marriage, and the act of marriage itself quite naturally passed into the competence of the Church, which had the right to give or withhold her blessing to one marriage or another.

[…]cannot regard as invalid a marriage which the Church recognizes as valid. 4. Only the Church has the right to judge concerning the validity or invalidity of marriage as a sacrament, while the state has the right to judge concerning marriage only as a public contract. 5. In questions concerning marital impediments, and dispensation from those impediments, and the convalidation of marriage, Church and state act by agreement, and each regards the ordinances of the other as binding upon itself. 6. Questions concerning the dissolution of marriage fall within the competence of the ecclesiastical court, while property relations in matrimonial suits are decided by the civil court.[8]

II. THE CONTRACTING OF MARRIAGE.