§ 182. Betrothal

Betrothal (μνηστεία, obručenie, sponsalia) is the mutual promise of a male and a female person that they will enter into marriage.[1] Betrothal, which today is prescribed by the Church to precede the wedding, is taken from Roman law. Under that law, betrothal was regularly performed as soon as it was decided that a marriage would be contracted. For the marriage itself it had no juridical significance, for although it might be beyond all doubt that after the betrothal was performed the marriage would follow, and although the promise had been made mutually and before witnesses, the betrothed persons were still not unconditionally bound to keep that promise and to marry, but each was free to withdraw the promise given and to enter into marriage with another person. This was the logical consequence of that fundamental teaching of Roman law, that marriage too could be dissolved as soon as one party wished it. Moreover, whoever contracted a new betrothal without formally declaring that he renounced the earlier one was, by law, subject to infamy, and besides this, if gifts had also been involved at the betrothal, he had to return twice as much as he had received, while he had no right to demand back his own gift.[2]

Just as the Church required of her faithful that marriage might be contracted only with her blessing, so she required the same also with regard to betrothal; and just as she had subjected marriage itself to her jurisdiction, so likewise she subjected betrothal to that same jurisdiction. The freedom of Roman law to withdraw from the promise at betrothal at will, the Church restricted from the very beginning of her legislative activity, and by her blessing gave to betrothal a morally binding significance similar to that of marriage itself. In the canons of Basil the Great we already find the thought expressed that betrothal must be strictly kept and binding upon everyone who contracts it;[3] and the Council in Trullo, by its 98th canon, prescribes the penalty of adultery for anyone who marries a woman betrothed to another, while her betrothed is still alive. This ordinance of the Council in Trullo passed thereafter, in the main, into the Greco-Roman civil legal collections as well.[4] This strictness with regard to betrothal was mitigated by the emperor Leo the Wise, who by two of his laws prescribed that only such persons might become betrothed as had reached the age established by law for marriage, so that their promises given at betrothal might be firmer, and less exposed to the danger of being broken; and at the same time he ordained that betrothal must be just as firm as the marital bond, and that it could be dissolved only for such causes as would also dissolve a marriage.[5] This was afterward confirmed by a special law of the emperor Alexius I Comnenus, with regard to a synodal ordinance under the Patriarch John VIII Xiphilinus, according to which the impediment of kinship, and the marital impediment arising from kinship, was to be regarded at betrothal exactly as at marriage.[6] Whoever was betrothed according to the church rite, if his betrothed should die and he afterward marries another, is regarded as one entering into a second marriage, as though he had been in marriage with the first betrothed.[7]

Having adopted for church life the betrothal of Roman law, the Church gave, in that betrothal, her blessing to that promise (ἐπαγγελία) which is mentioned in the Roman-law definition of betrothal, and with such a blessing this promise became holy, as one made before God and received by God. In this sense betrothal is the beginning of marriage itself, for in it already exists that necessary condition which constitutes the essence of marriage itself, namely, the mutual consent to a common life of one male and one female person.[8] For this reason both the Old Testament and the New Testament law regard a betrothed woman as the wife of her betrothed. Moses calls “the wife of his neighbor” a girl who was betrothed to a man;[9] and in the Gospel the Most Holy Virgin, who was only betrothed to Joseph, is called “his wife,” and he “her husband.”[10] And that one who marries a betrothed girl while her betrothed is alive is punished as an adulterer, and not merely as a fornicator, is seen from the 98th canon of the Council in Trullo.[11] With regard to the time between betrothal and marriage, neither church nor civil legislation has determined anything precise. This was left to the will of the betrothed persons, who generally allowed some time to pass after the betrothal before the wedding, following in this the prescription of the laws of that time, that the two could not be performed at one and the same time, since these are two things different in their essence.[12] Later, in order to avoid the cases spoken of by the aforementioned Trullan canon, it was established that betrothal (obručenje) should be performed together with the wedding.[13]