Marriage: a comparative study of canon law and civil law
AUTHOR : C.BASTIN ANITO
Introduction
Marriage is a covenant between the
husband and wife. It is a social and legal relationship for having a family. Civil
law and canon law considers marriage as an indissoluble union. This assignment
is a humble attempt to bring out the important elements on marriage with the
comparative study of both civil and canon law. Since it is a vast topic, here I
limit myself with the available sources. The first chapter enunciates the
historical development of marriage law and some elements regarding marriage.
The second chapter explains about the ecclesiastical procedures for marriage.
The third chapter speaks about the marriage under the Christian marriage act,
1872. This assignment considers only the pre- marital procedures for Christians.
CHAPTER: 1
General elements of christian marriage law
1.1 Historical development of Christian marriage law
The Christian marriage law was not
formulated within a span of time but it was gradually formulated over the period.
Until the tenth centauries, the church tolerated that Christians marry
according to the civil laws of the country in which they belonged. Pope
Innocent III (1198-1216 A.D) ordered that the marriage should be celebrated in
the church. In the twelfth century, the church formulated the legislation on
marriage. It paved the way for the new understanding of marriage. The church
taught that marriage was for life and can be dissolved only by the death of the
one of the spouses. Pope Alexander III (1159-1181) stated that once a Christian
marriage had been consummated by sexual intercourse, no power on earth save
death alone could dissolve the bond”.[1]
This statement strengthened the fidelity in marriage.
The council of Trend (1545-1563)
distinctly rendered the validity of marriage. It declared that marriage should
have taken place in the presence of the parish rector or of another priest
delegated by the parish rector or the ordinary and in the presence of two or
three witnesses. If not, the Holy Synod declares such a contract null and void.
On February 10, 1880, Pope Leo XIII (1878-1903) issued the first encyclical
letter on marriage “Arcanum Divinae sapientiae”. This encyclical letter
emphasized on the power of the church over the marriage of the baptized.
Pope Pius issued the encyclical letter,
Casti connubii, on Dec 31, 1930. He speaks on conjugal love and vocation of
marriage. He refers marriage as a communion of life between husband and wife
and conjugal love is the mutual sanctification of the spouses in the supernatural
order and as the primary cause and reason for marriage. The second Vatican also
echoes the same in its pastoral constitution Gaudium et spes, “the intimate
partnership of life and conjugal love has been established by the creator”.[2]
On this basis of short historical
background of the christian marriage, I shall now discuss the general
principles of Christian marriage law as envisaged by canon law and statutory
enactments of the Indian Christian marriage Act, 1872 and the special marriage
act, 1954.
1.2 marriages as a covenant
Marriage
is contract by which a man and woman agree to live together as husband and
wife. This agreement involves a vow of fidelity. The relationship of husband
and wife is compared with the divine relationship of Yahweh to His people, His
covenant with Israel. In this perspective, marriage may be defined as a graced
covenant of love and fidelity between two persons. Canon 1055 §1 expresses the
nature of marriage as follows : The marriage covenant, by which a man and a
woman establish between themselves a partnership of their whole life, and which
of its own very nature is ordered to the well-being of the spouses and to the
procreation and upbringing of children has been raised by Christ the Lord to
the dignity of a sacrament.
1.3 Marital consent
The
covenantal marriage becomes valid only if there is a mutual exchange of consent
between the spouses. In the civil law, marriage is considered as a contract
between two persons. The Indian contract act, 1872, section13, defined, “a contract
is brought into existence when parties agree upon the same thing in the same
sense”. This act is effected through human consent. The consent is the indispensable integral
element in the creation of a contractual bond. The marriage is a special contract
which demands a total gift of self, the mutual exchange of consent must be a
free act of the will on the part of spouses., Canon
1057 §1 says, “ A marriage is brought into being by the lawfully manifested
consent of persons who are legally capable. This consent cannot be supplied by
any human power.”[3]
**
1.4 marital properties
The consent of the spouses bring the
marriage into existence, it follows that marriage has certain essential
properties. The essence of marital properties is unity and indissolubility. Unity
means that the marriage relationship is an exclusive one, i.e., between one man
and one woman, and it cannot be extended to a third party i.e., a second wife
or husband. The Christian marriage is monogamous. The polygamy, polyandry,
remarriage after divorce while the first party is still alive, is all excluded
in the ecclesiastical law. The Indian Christian marriage act has taken for
granted this principle of monogamy in the Christian marriage. The special
marriage act, 1954, section4, has made it strict rule for a valid marriage that
neither party has a spouse living. According to the Indian divorce act, section
10, bigamy is an offence. Under Christian marriage act, when the church
authorities solemnize the second marriage, it is void if one of the parties to
the so-called marriage has a spouse alive.[4]
Indissolubility
means the marriage relationship endures throughout the life span of the
partners and cannot be dissolved by any human power. The church holds that it
is God’s intention that marriage should be indissoluble (Gen 2:18-24). The
canon 1141 declares, “ A marriage which is ratified and consummated
cannot be dissolved by any human power or by any cause other than death.”
1.5 capacity to marry
Canon 1058 says that all can contract
marriage that is not prohibited by law. There are two affirmations in this
canon, one explicit and another implicit. The explicit statement is that every
person is presumed to have the right to marry, unless the country can
established on legal grounds. The implicit statement is that competent
authorities have the right to forbid marriage.[5]
The capacity to marry is based on
physical capacity, mental capacity and legal capacity which have been explained
in below,
1.5.1 Physical capacity
It includes the person free from any
impediment such as nonage, impotence, consanguinity, crime, abduction etc. the
following impediments are common to both canon law and civil law.
a) Age
Canon
1083 speaks of the age for marriage in the church. According to this law, the
ages require 16 years for man and 14 years for woman. However, in civil law the
age differs. Indian child marriage restraint act, amended in 1978 and the
special marriage act, 1954, section4(c) defines the age for marriage, “the male
has completed the age of twenty-one years and female the age of eighteen
years”.[6]
b) Impotence
The
purpose of marriage is bringing forth the children. The marriage is valid when
the partner impotent before the marriage. Canon 1084 §1 says, “Antecedent
and perpetual impotence to have sexual intercourse, whether on the part of the
man or on that of the woman, whether absolute or relative, by its very nature
invalidates marriage.” This canon prohibits the impotent
person to marry. This marriages are also void under section 19 of the Indian
divorce Act and sec 24 of the special marriage act, section 24 (ii) says, “ the
respondent was impotent at the time of the marriage and at the time of the
institution of the suit.”[7]
c) Existing marriage bond
Bigamy is an offence punishable under
section 4 of the special marriage act. Canon 1085 lays down that a person bound
by the bond of a previous marriage, even if not consummated, invalidly attempts
marriage.
d) Consanguinity
The marriage is valid when the parties
to marry are related by blood. Canon law forbids marriage in all case of direct
line and up to fourth degree in the collateral line.
“Canon 1091 §1 Marriage is
invalid between those related by consanguinity in all degrees of the direct
line, whether ascending or descending, legitimate or natural.
§2 In the collateral line, it is
invalid up to the fourth degree inclusive.
§3 The impediment of consanguinity is
not multiplied.
§4 A marriage is never to be permitted if a doubt exists as to
whether the parties are related by consanguinity in any degree of the direct
line, or in the second degree of the collateral line.”
Similarly, the parties are not within the degree of prohibited
relationship under the special marriage act, section 4.
e) Crime
Canon 1090 §1
prohibites the marriage of the person who committed crime in view of
contracting a marriage. Canon
1090 §1 says, “ One who, with a view to entering marriage with a particular
person, has killed that person’s spouse, or his or her own spouse, invalidly
attempts this marriage.” However, under civil law crimes like
adultry, rape, sodomy etc., are grounded for divorce.
d) Abduction
It
canot be a means for a valid marriage under canon 1089.the civil law also does
not recognise a marriage wherein consent of either party is obtained by
coercion or fraud.
1.5.2 mental capacity
The one of the essential conditions
of the marriage is that the party to marriage should not have been an idiot or
a lunatic under sec 4 (b) (i), “neither party’s incapable of giving a valid
consent to it in consequences of unsoundness of mind.”[8] According
to canon 1095, the person who lacks sufficient reason, lack of discretion of
judgment, causes of psychological nature is incapable of contacting marriage.
1.5.3 Legal capacity:
Baptism and
domicile are the required factors for legal capacity for the marriage.
a)
Baptism:
According to canon law, those who
received baptism can marry in the church. Here an exception is stated, if one
of the party is Christian, the party is given conditional baptism and eligible
to marry in the church. it is also accepted in the civil law, under the Christian
marriage Act, 1872, section 4, “ every marriage between persons, one or both of
whom is a Christian or Christians”. The civil
law defines the Christian as, “the expression ‘Christians’ means persons
professing the Christian religion”.[9] For
instance, one who performs ‘Devika Puja’ at the time of his/her marriage can
not be said to be a Christian marriage.”
b)
Domicile
Domicile or quasi –domicile is one of
the legal capacities for a valid marriage. Domicile is also important in the
civil law.
Chapter-2
canonical procedures for marriage
In
this chapter, I shall discuss what are the forms of celebrating Christian
marriage law, what are the basic requirements for its validity, what is meant
by mixed marriages and secret marriage:
2.1the forms of marriage
It
means the external formalities required in the celebration of marriage. The
marriage is built by the mutual consent of the spouses. When such consent takes
place, the church holds that certain formalities must be present. The council
of Trent in 1563 required the presence of the priest or local ordinary or three
wittness, one of the parties according to their domicile or quasi-domicile.[10]
Canons 1108-1123 provide the forms of the celebration of marriage.
2.1.1 Ordinary canonical form
An
external formality accompanies the consent. This form is assistance of the
authorised priest or deacon and two witnesses. The priest or deacon is to
officially ‘ask and receive’ from the partners the manifestation of consent in
the name of the church. The spouses are the ministers of this sacrament. Canon
1108 clearly explains about the ordinary canonical form.
2.1.2 Extradinary canonical form
Canon 1116 speaks about the extradinary
canonical form. It explains as follows:
“
Canon 1116 §1 If one who, in accordance with the law, is competent to
assist, cannot be present or be approached without grave inconvenience, those
who intend to enter a true marriage can validly and lawfully contract in the
presence of witnesses only:
1° in danger of death;
2° apart from danger of death, provided it is prudently foreseen
that this state of affair will continue
for a month.
§2 In either case, if another priest or deacon is at hand who
can be present, he must be called upon and, together with the witnesses, be
present at the celebration of the marriage, without prejudice to the validity
of the marriage in the presence of only the witnesses.”
Sometimes the priest cannot be present because
of some grave reasons. Therefore, in this situaton, the spouse can marry
infront of one or two witnesses.
2.2 The validity of marriage:
Canon 1066
reminds that the priest or deacon that
the person involved in a marriage should take all steps necessary for the valid
marriage, the pre-nuptial enquiery to find out whetther the parties are
baptiesed , whether they are free to marry, whether there exist any invalidating
factors such as the outright rejection of children, fidelity, or perpetuity or the presence of an impediment or serious psychological disorder
and moral value of the person. [11]Later
on the priest also take into account of the marital consent, the canonical
form, the official witness, the liturgical rite and the registration of
marriage.
2.2.1 The place of marriage
The place for the celebration marriage
is the parish church. Canon 1115 has given the provision as such, “Marriages
are to be celebrated in the parish in which either of the contracting parties
has a domicile or a quasi-domicile or a month’s residence or, if there is
question of vagi, in the parish in which they are actually residing. With the
permission of the proper Ordinary or the proper parish priest, marriages may be
celebrated elsewhere.”
The marriage can be celebrated either
the parish of the bride or the bridegroom. They are free to choose. If they
want to go beyond the boundries, they should request the permission of local ordinary
or parish priest. The spouses need not give any special reason; it is required
only for the pastoral purpose.
2.2.2 The registration of marriage:
It is the
oblication of the priest or one who is taking his place must enter the names of
the contracting parties and witnesses, the place and date of the celebration of
marriage. It must be done according to canon 1121&1. If the marriage is
celebrated according to the extradinary form, deacon or witnesses must inform
to the priest. If the marriage has been contracted with the dispensation from
canonical form, the local ordinary who granted the dispensation, must inscribed
in the marriage register at the curia and at the parish. Canon1122 instructs
the priest concerned may note the marriage in the baptismal register or send
notification to the priest where the baptism was conferred. It can prevent bigamy
and fraudulent unions. By cross checkings, the priest can easily find out
whether or not a person was previously married.
2.3 Mixed marriage:
If a catholic
likes to marry, a non-baptised is known as disparity of cult. If the person
likes to marry, a non-catholic is known as mixed marriage. In the both cases,
they should obtain the dispensation from the local ordinary. Canon 1125
empowers,
“The
local Ordinary can grant this permission if there is a just and reasonable
cause. He is not to grant it unless the following conditions are fulfilled:
1°
the Catholic party is to declare that he or she is prepared to remove dangers
of defecting from the faith, and is to make a sincere promise to do all in his
or her power in order that all the children be baptized and brought up in the
Catholic Church;
2°
the other party is to be informed in good time of these promises to be made by
the Catholic
party,
so that it is certain that he or she is truly aware of the promise and of the
obligation of the Catholic party
3°
both parties are to be instructed about the purposes and essential properties
of marriage,
Which
are not to be excluded by either contactant?”
When
a catholic marries a non- catholic, they are bound to observe the catholic
canonical form. The scope of this norm is to protect the catholic faith and the
conscience of a non- Christian must be respected.
2.4 SECRET marriage
Every
marriage celebration must be solomized publically. The church permits secret celebration of
marriage when the greater spiritual good of the parties demand it. It can be
celebrated in the cause of serious inconvience, loss of reputation and even
harm, to the couple. Canon 1130 to 1132 empowers local ordinary to permit
secret marriage for a grave and urgent cause. The performance of such
celebration must be documented in a special book with the presence of two
witnesses.
Chapter-3
Marriage under the indian christian marriage act, 1872
In this chapter, I shall discuss the forms of
celebration of marriage, the validity of marriage, the registration of marriage
etc., which are clearly discussed as follows.
3.1 The forms of marriage
The Indian Christian
marriagr act, section 5 provides various forms for marriage celebration
3.1.1 Marriage which are purley religions
They
can be solomized only by the priest or clergyman. The catholic and other
denominations celebrated in their respective churches and solominised by their respective
pastors.
3.1.2 Marriage which are purely secular
The marriage
can be solomnized only by a person authorised by the government. The marriage
can be solominised before a marriage registrar under this section.
3.1.3 Marriages which has a mixed character
The marriage
can be solominised by a licensed minister or by licensed laypersons. The
ceremony of those marriages may or may not be religious. These types of
marriages are having the character of mixed marriage. According to the Indian Christian
marriage act, section 5, if any one wants to declare that the marriage is
invalid, he has to prove that marriage was not solomnized by any of the
authorized persons.
3.2 VALID marriage
According to
civil law, marriage is considered to be a contract between two parties. The
following elements should be fulfilled legally in the contracted marriage.
3.2.1 The ceremonies of marriage:
The
ceremonies of marriage have been divded into three categories
i)
If the marriage is
celebrated by a person who has received episcopal ordination or by a clergyman
of the Church of Scotland, all the rules, rites, ceremonies and customs of the
church to which the minister belongs must be observed.
ii)
If the marriage is
celebrated by a licensed minister, then the manner of ceremonies is left to his
discretion.
iii)
If the marriage is
celebrated by the registrar or by some one else in his presence, the choice of
the ceremonies to be observed is left to the parties.[12]
3.2.3 Time and place for solemnizing marriage
According
to the Indian Christian marriage act, section 10, the marriage can be
solominized between the hours of six in the morning and seven in the evening. However,
this prohibition does not apply to a clergyman of the church of Rome under a
general or special license in this behalf. Indian christian marriage act,
section 10 , “ Every marriage under this act shall be solominized between the
hours of six in the morning and seven in the evening”. [13]
Section 11 of this act states that the place
of marriage can be solomnized only in the church, according to the rules,
rites, ceremonies and customs of the particular church.
3.2.3 Registration of marriage
The priest is
required to maintain a register of marriages and they should be sent
periodically to registrar general of marriages as prescribed in part (IV) of
the act. If the marriage is between indian christian, instead of sending the
information to the register and shall keep it safely untill it is exhauted and
pass it on to the successor in office
and when the book is full, send it to
the marriage registrar of the district.
Section 30 provides some insructions for Roman Catholic priest regarding the
registration of marriage, which have, be stated as follows, “person shall
forward quarterly to the registrar general of births, death and marriages
returns of the entries of all marriages registered by him during the three
months next preceeding”.[14]
Conclusion
This assignment helps me to understand about marriage in the
view of both civil and canon law. I hope this work will help me to handle the
problems regarding marriage in the parish. This assignment will be the pastoral
guidance to me in the future. Here, I like to conclude my assignment by stating
that both state and church must work together to protect the institution of
marriage, paying special attention to the common issues, so that the spouses
may benefit socially and spiritually. The civil law and canon laws have
complementary roles to play in fostering the institution of marriage and
family.
Bibliography
1.
Madhu,
Midathala. Marriage laws and family courts act. Hydrerabad: Asia law
house, 2004.
2.
Pinto, William
E. law of marriage and matrimonial reliefs for christian in india.
Bangalore: theological publication in india, 1991.
3.
n[auh[d;>
“,e;jpa
FLk;gr; rl;lk;”. Nryk;:
uh[d; gjpg;gfk; 2009.
4.
Flannery,
Austin. Vatican II. Mumbai: St.Paul's Publication, 2010.
[1]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Theological publications in
India.Bangalore, 1991, pg-3
[2] Austin Flannery, “Vatican II”. St. Paul’s publication, Mumbai, 2010, pg-835-837.
[3] ** All the canon reference quoted in this
scientific work are taken from “The code
of canon law ( New revised English translation)”.Theological publication in
india, Bangalore, 2010.
[4]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Pg-8-9.
[5]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Pg-9.
[6]
Midathala Madhu, “ Marriage law and
family courts Act.” Asia law house. Hyderbad, 2004, pg-125.
[7]
Midathala Madhu, “ Marriage law and
family courts Act.” Pg-134.
[8]
Midathala Madhu, “ Marriage law and
family courts Act.” Pg- 125.
[9]
Midathala Madhu, “ Marriage law and
family courts Act.” Pg-193.
[10]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Pg-20.
[11]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Pg-23.
[12]
William E.Pinto, “Law of marriage and
matrimonial reliefs for christians in India”. Pg-35.
[13]
Midathala Madhu, “ Marriage law and
family courts Act.” Pg-195.
[14]
Midathala Madhu, “ Marriage law and
family courts Act.” Pg-201.
