§ 181. The Principal Conditions of Marriage

When marital jurisdiction became the exclusive affair of the Church, all those canonical prescriptions which had existed from the beginning of the Church were applied in matters of marriage, and the Church’s legislation now developed and supplemented them with new prescriptions, so that the lawfulness and sanctity of marriage might be secured on every side. In view of the significance of marriage in civil law as well, the Church always issued her prescriptions in connection with the existing civil laws, insofar as those laws agreed with the ethical significance of marriage. This applies especially to the general principal conditions of marriage, without which marriage cannot lawfully exist. Among these principal conditions the first is:

1. The mutual consent of those entering into marriage. This consent consists in a male person and a female person declaring, in a manner recognized as valid by law, their free will to enter into the union that constitutes marriage.[1] Accordingly marriage is regarded as contracted at the moment when the will of that male person and that female person receives outward expression and becomes a public, mutual consent. And in order that this mutual will may in fact be the basis of the marital bond, it must correspond to all those legal prescriptions which in general are required for every lawful contract—first, that the contracting parties possess all the moral qualities necessary for this, and further, with regard to the purpose of marriage, that they possess all the physical qualities as well; and only when all these moral and physical qualities exist, and when the mutual consent has been declared in the form prescribed by law, does it then serve as the basis of marriage, and thereby the first fundamental condition of marriage is answered. Connected with this first condition are the following:

2. The prescribed age for marriage. In order that mutual consent to marriage may have a real basis, it is necessary, according to the ethical and physical purpose of marriage, that the persons wishing to enter into marriage be of such an age of life as would guarantee the attainment of the purpose of marriage. Both Roman and church legislation require that both the male and female must have reached mature age (ἥβη, pubertas) if they wish to contract a lawful marriage. Roman law, after various fluctuations on this question, established that a young man must be 14 years old and a girl 12 years old, when they wish to marry.[2] The Church adopted these years for marriage, and made them law through several synodal decisions.[3] In more recent times this has been regulated by civil legislation, and the Church, in the states concerned, follows the prescriptions of the civil legislation on this question.[4]

Just as the age from which a male and female may enter into marriage is prescribed, so also the age after which they may no longer enter into marriage is prescribed. This is prescribed both for the physical purpose of marriage and for the ethical purpose. By the canons, a man of 70 years may not marry, nor a woman of 60 years.[5] Such persons do not, under normal circumstances, have the possibility of attaining the physical purpose of marriage on account of their age, and still less can such a marriage be justified from the ethical side.[6] For this same reason the Church also forbids marriage between persons who differ greatly from one another in age, that is, between an old man and a young girl, and vice versa.[7]

3. Normal mental condition. This is absolutely necessary in order that the first and principal condition of a lawful marriage can be fulfilled, that is, that the parties be able consciously to declare mutual consent to marriage. If a normal mental condition is required of everyone who wishes to contract any contract with another person, this must be required all the more of one who is to contract such a contract as marriage, in which the divine meets with the human right. In view of this, both civil and church legislation do not permit one who is possessed, mad, or feebleminded to enter into marriage, for such persons cannot have consciousness of what they are doing, nor can they know what legal obligations they are undertaking.[8] But persons are not deprived of the right to marry who only sometimes show that they are not in a normal mental state, and in whom madness is not constant. Here belong those illnesses which only temporarily cloud a person’s reason, while otherwise he is of sound mind—for example, epilepsy, chronic somnolence, and the like. From the ethical side, marriage is even recommended for such persons, for the healthy spouse will help the feebleminded spouse in life and thereby ease that person’s own life.[9] Likewise it is permitted for the deaf, the mute, and the blind to marry, for the lack of one sense or another does not prevent a person from being able to think sensibly and freely declare consent to marriage.[10]

4. Capacity to perform the marital duty. Apart from the begetting of children, which does not always depend on the will of the spouses, it is an essential purpose of marriage that husband and wife be able to satisfy their natural inclinations toward each other, that is, to be in complete carnal union with one another. Whoever suffers from incapacity (impotentia) to satisfy this marital purpose cannot contract marriage, and accordingly the capacity for that satisfaction constitutes one of the principal conditions of marriage.[11]

5. The consent of elders. This marital condition applies only to minors in the civil sense[12], and further to those who, though of age, stand—by decision of the competent authority and when need requires—under parental or guardianship authority. As in the old civil and church law, so also in the more recent legislation, the consent of parents or guardians is strictly required for every marriage into which someone without an independent position in society, or someone who, on account of some physical or mental deficiency, is not competent to contract a lawful contract, would wish to enter. Greco-Roman legislation is strict in its ordinances on this point,[13] and church legislation, in view of the Christian character which it gave to marriage, had to be even stricter in its ordinances on this question. Basil the Great, in his 42nd canon, calls every marriage contracted without the consent of elders fornication.[14] This canon, together with all the prescriptions of Greco-Roman legislation that agree with the ordinance of that canon, is found in all the canonical collections of the Orthodox Church.[15] This same thing is prescribed also by today’s civil legislation in the states concerned.[16]

These conditions for marriage which we have now set out must be strictly observed, for they constitute the essential side of marriage itself, and if these conditions are absent marriage cannot exist, either in the civil or in the church relation. Besides these conditions, for the lawfulness of a marriage there must be nothing else that in law is called a marital impediment. We speak of these marital impediments in section III of this chapter.