§ 205. Various Kinds of Marriage

In the science of matrimonial law, various kinds of marriage are mentioned, among which the Church regards some as fully canonical (if, of course, they are contracted according to the ecclesiastical prescriptions), declares others subsequently canonical if the relevant matrimonial impediment that existed at their contracting is removed and the prescribed matrimonial conditions are satisfied, while a third group she does not recognize as canonical at all. To the first kind belong the morganatic marriage and the axiomatic marriage; to the second, the marriage by proxy, the putative marriage, and the marriage of conscience; to the third belongs the civil marriage.

1. The morganatic marriage. This is the name given to a marriage contracted between two persons of different social rank, in which the husband or wife—and likewise the children—do not enjoy all those rights as to family standing and inheritance that they would otherwise enjoy in a regular marriage. Even in ancient Roman law such a marriage was looked upon with disfavor, yet it was nevertheless tolerated, just as it continued to be tolerated through the centuries afterward.[1] It is called, among the Germans, a morganatic marriage (matrimonium ad morganaticam) for the reason that in such a marriage the wife, together with her children, had to content herself, out of the husband’s whole estate, only with that which she received as a gift after the first wedding night (Morgengabe, donum matutinale).[2] Such a marriage, moreover, provided only that it was otherwise conducted according to the canonical prescriptions, has always been regarded by the Church as lawful and fully equal to any other regular marriage.

2. The axiomatic marriage. In Greco-Roman legislation, ἀξίωμα ἐν τοῖς ἐπαρχίαις was regarded as an impediment to marriage—that is, it was forbidden to the political governor of a province, and to his male children, to marry any woman belonging to that same province while he held that office.[3] Such a marriage, if contracted, was regarded as unlawful, and could be recognized only once the governor concerned had left the province. The motive for not recognizing such marriages was the preservation of the interests of the public service and its objectivity. From this standpoint the canonists too have sometimes regarded such a marriage as impermissible.[4] But this was only the personal opinion of individual canonists, and the Church recognized the lawfulness of such marriages, provided no other matrimonial impediment was present.

3. Marriage by proxy (per procuratorem) is the name given to a marriage in which the bridegroom and bride do not personally declare their consent to the marriage, but one of them is represented by another empowered person, who signs the marriage contract for the absent spouse in the presence of witnesses. The power of attorney in such a case must be in writing, must contain in detail everything pertaining to such a marriage, and must be approved by the competent authority.[5] The Church can recognize such a marriage contract only once the new spouses personally present themselves to the competent priest and, in the presence of witnesses, confirm their consent to the marriage and receive the blessing of the Church; and only from that moment—provided all the other legal prescriptions concerning marriage have otherwise been satisfied—does the Church recognize such a marriage as canonical.[6]

4. The putative marriage (matrimonium putativum). This is the name given to a marriage that was contracted while some matrimonial impediment existed of which the spouses were unaware, or at least of which one of them was unaware. Such a marriage was regarded as canonical and the children fully legitimate.[7] When the impediment that existed for the marriage is discovered, a subsequent dispensation must at once be sought from the competent authority so that the marriage may be convalidated. In this matter the ecclesiastical authority is always as indulgent as it possibly can be.[8] But if the dispensation cannot be granted at all, and the marriage therefore cannot be convalidated, then that marriage is dissolved, and should a child happen to be born afterward, it can no longer be regarded as legitimate.[9]

5. The marriage of conscience (matrimonium conscientiae) was the name given to a marriage that was contracted in secret, without the prescribed banns and in a hidden place, yet still before a priest and two witnesses. This form of marriage was employed in extraordinary circumstances, and such a marriage was not entered in the ordinary parish register of marriages, but in a special book appointed for that purpose.[10] Since a marriage must be publicly contracted in church, and secret marriages (λαθρογαμία) are strictly condemned in the canons of the Orthodox Church (§ 186), the Church does not recognize these marriages of conscience either.[11]

6. The civil marriage (mariage civil) is a product of the religious and social struggle that arose in Western Europe in the 16th century and reached its culmination at the time of the French Revolution. This marriage is contracted independently of the Church, before a state official. There are no church banns; instead, notice is given by means of a civil proclamation, and the marriage itself is contracted according to the particular form prescribed for that purpose by the civil authority. Civil marriage has been introduced in almost all the states of Western Europe, and in most of those states it is obligatory—that is, only such a marriage is recognized as lawful. It is obligatory also for the Orthodox in the Kingdom of Romania and in Hungary. In some Western states such a marriage is only optional—that is, it is left to the parties to marry either by civil marriage or by church marriage, to which civil consequences are also recognized. In Austria there exists the civil marriage of necessity (Notzivilehe)—that is, for such persons to whom the Church, on account of certain canonically established matrimonial impediments, cannot permit marriage; such persons then contract a civil marriage, provided there is no civil impediment (§ 147, III). Civil marriage is contracted, as we have said, independently of the Church, and accordingly, for the Church, in the sense of the dogmatic and canonical teaching on marriage, such a marriage does not exist, nor can she recognize it. She recognizes only that marriage which is contracted according to the legal prescriptions contained in her own canonical collections; and if those who have already contracted a civil marriage wish that the Church, too, recognize their marital bond, they must be properly married in church.[12]

CHAPTER FOUR. The Corporate Life of the Church.