Marriage: a comparative study of canon law and civil law

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.

FOOT NOTES:

---

[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.