Professional Documents
Culture Documents
Lesson Nine
Our Lord Jesus Christ raised this very contract of marriage, made between
two baptized people, to the dignity of a Sacrament (Canon 1012, 1). Every
marriage of two baptized, people is therefore a Sacrament; that is, no
contract of marriage between two baptized persons can possibly exist
without being a Sacrament (Canon 1012, 2).
As is the case with all the Sacraments, Our Lord has entrusted this
Sacrament-contract to the care and administration of His Church. Thus, since
the marriage of two baptized people is always a Sacrament, it belongs to
God, and not to the civil authorities or governments which, therefore, have
no right to make laws concerning the Sacrament contract of marriage. The
civil authorities have no more jurisdiction over the Sacrament of marriage
than they have the right to decide how and when we must be baptized or
confirmed or go to Confession. It is a matter entirely outside of their
jurisdiction.
Difficulties arise also from the fact that in certain countries, the laws of
various provinces or states are at variance with one another. Because of this
situation, it is impossible for us to give here, even in an abridged form, all
the various laws governing the celebration of marriage in these countries.
Moreover, for the majority of those contemplating marriage, a detailed
In place of the calling of the banns, many states and provinces require
instead that the prospective parties notify the civil authorities of their
intention to marry. The purpose of this law is twofold: a) to prevent the
celebration of unprepared marriages; b) to allow time necessary for the civil
authorities to investigate the capacity of both parties to contract a valid
marriage. While Catholic parties resident in these states are not dispensed
from the calling of the banns in their church, they nevertheless must comply
also with the requirements of their civil laws. This notification or declaration
of intention to marry, made by the parties to the civil authorities, is different
from the marriage license which in some states is often called “certificate of
intention” or “certificate”.
In most states of the United States and provinces of Canada, those persons
who have not yet reached the age of 21 for men, and 18 for women, require
the consent of their parents. A few states vary in the matter of the age, more
often for women than for men. Many states require the consent of both
father and mother but, usually, the father’s consent prevails. Again, in many
states the guardian’s consent has to be obtained if the father or mother is
(mentally) deficient. In certain circumstances determined b! law, the
approval of another person, e.g. a judge, is required when, for example, the
parents who live outside the state are not citizens of the country. Lastly,
there are certain cases in which such approval is not required: the second
marriage of a widow or widower (who is under the legal age limit); when the
woman legitimately lives outside her parents’ home.
4) INVESTIGATION TO BE MADE
In both canonical and civil law, investigations have to be made before a
marriage may be performed. For this investigation the obligation rests first
upon the pastor for the canonical investigation, and for the civil investigation
upon the public official who issues the license. (An outline of this canonical
investigation [prenuptial enquiry] has already been given in Lesson 8.) It is
also the duty of the pastor to find out if the requirements of the civil law
have been duly fulfilled. The main reason for this is to avert from himself and
from the engaged couple the very severe penalties incurred by those who
act contrary to the civil law. At the same time, it is the Church’s desire that
civil laws be observed, provided that they are honest in themselves, e.g.
Not only is the pastor under an obligation of charity towards himself and
towards the couple to make such investigations concerning the requirements
of civil law, but in some states this obligation is imposed by the civil law
itself, sometimes under very heavy penalty. In other states, it suffices for him
to be shown the marriage license issued to the couple coming to be married.
As these investigations (Canonical and civil) concern the pastor even more
than the couple themselves, no further explanation seems necessary here.
5) CAPACITY TO MARRY
Canon Law (1018) requires that, before a marriage may be performed,
evidence must be established that nothing is opposed to its valid or licit
celebration. Thus there is the obligation for the pastor to have the certitude
that neither party is already bound by a former marriage. Hence the
previously mentioned enquiry demanded by the Church.
The civil laws of different states or provinces ar-3 at great variance as to the
methods by which the knowledge of this freedom to contract marriage is to
be obtained. Ordinarily, a solemn declaration by the man and woman is
considered sufficient. Some states require the testimony of other persons.
Some states also a require a bond, that is, a certain sum of money to be
deposited as proof of the capacity of the parties to contract marriage. (It is
very strange, however, that in most states of the United States a divorced
person is not obliged to show a special attestation of the preceding divorce.)
Finally, in the case of re-marriage by a person whose husband or wife is
deceased, most states are satisfied with a solemn declaration of liberty.
1) GENERAL IDEA
Most marriage impediments as determined by civil law closely resemble
those established by the laws of the Catholic Church. The main difference
between them, however, lies in the fact that civil impediments, as a general
rule, do not always have the same clear-cut effects as have the canonical
impediments. Whereas canonical impediments render a marriage either
invalid or illicit, certain civil laws on the other hand are not so definite when,
for instance, they state that such or such marriages are “forbidden”. Thus, a
marriage may be forbidden and invalid, or forbidden and valid though illicit.
As has already been noted in this lesson, the Catholic Church recognizes the
power of any state to enact laws affecting the marriage of non-baptized
persons among themselves, provided that these laws be not opposed to the
laws of God. But, as these laws are enacted by the state with the intention of
binding all citizens, it is the will of the Church that Catholics should obey
these laws as long as they are not opposed to the teachings of the Church.
This point must be kept in mind while reading the following paragraphs. For
more specific data, we refer our students to the laws of their own particular
state or province.
Other cases also occur in which some states regard as valid the second
marriage of a person whose first marriage still exists but who has been
abandoned by his or her partner for a certain determined number of years.
This amounts to an implicit divorce, and is not in accordance with the laws of
the Church. Each particular case, therefore, must be studied in the light of
both Church and State legislation if embarrassing conflicts are to be avoided.
It is a point worth noting that, contrary to canon law which “counts the
degrees” (See Lesson 8), civil laws are satisfied most of the time with the
mere enumeration of those persons between whom a marriage cannot be
contracted on account of consanguinity or affinity. Thus, civil law will state:
“A man may not marry his sister, his father’s sister, etc.”
b) Disease: Christian love for one’s neighbor should deter any person who is
afflicted with a contagious disease, from contracting marriage. This is
especially true when the disease is of a hereditary nature; in such a case, it
may even amount to a grievous obligation to forego marriage. Nevertheless,
the Church, respectful of the dignity and liberty of man, has never made this
obligation a formal impediment. Even civil legislation had never done so
until, within recent years, under the pressure of the self-styled and so-called
eugenic movement, some countries enacted various laws to prevent such
marriages or to render them fruitless through sterilization. The Catholic
Church, be it noted, strongly endorses any measures that further the
safeguarding of health, but She does insist that these measures be measures
that respect man’s inalienable dignity and liberty. Thus, the Catholic Church
will look with favor upon the idea of a pre-marital medical examination BUT
She will oppose this idea if the results of this examination are to be later
used as grounds for rendering the marriage “legally” invalid or void.
Among the diseases that have been finding their way into the laws of the
State, the .post frequently noted are epilepsy, tuberculosis, and venereal
diseases. (The question of venereal diseases will be dealt with in Lesson 13.)
Since, as we have already explained, the economic aspect of family life has
such a basic importance for the stability and welfare of the family, the legal
element that determines and governs it is of no less importance. It is not
surprising therefore that law-makers have given this problem so much
attention since the beginning of human society. Experience and thought have
forced them to elaborate various systems of laws that tend to give to the
Broadly speaking, the various legal systems now in force throughout Western
civilization may be traced back to the two great systems of laws which form
the backbone of western culture: the Roman Law; and Common Law. Of
these, the former has extended its influence throughout most of Continental
Europe (especially the Latin countries) and, through emigration, to certain
parts of North, Central, and South America. The Common Law, supplemented
by statutory laws, still fundamentally prevails in all English speaking
countries. Nevertheless, these two great legal systems have not been
without influence, one upon the other, with the result that certain Common
Law characteristics have found their way into the laws of countries whose
legal system is based on the Roman Law. Moreover, the Common Law of
England (and other Common Law jurisdictions) relating to marriage has its
origin in the Canon Law or Church Law.
In dealing with the legal status of husband and wife, both systems of law
stress the following points: 1) personal rights; 2) property rights; 3) rights
respecting children. However, since this present lesson has been compiled
primarily for the benefit of American and English-speaking Canadian
students, the following paragraphs will be directed towards an explanation of
the legal status of the husband and wife in these countries.
2) MAIN APPLICATIONS
1) Personal rights: a) Upon marrying, the woman assumes her husband’s
name, although generally speaking, without obligation to do so. b) The
husband is regarded as the head of the household, and may determine the
place of residence of the family. c) Contrary to the old law, a wife is
a) Community Property System: Under this system, the couple each with the
other jointly owns and shares all belongings. Thus, each partner gives all he
(she) possesses and all he (she) may yet acquire in order to increase the
total wealth for their common benefit. In case of dissolution of their
“partnership,” the total wealth is usually divided equally. All things
considered, the Community Property System is the simplest, the most
reasonable, and the most just: It is the simplest since the two partners give,
each to the other, all they own without any reservations. It is the most
reasonable since, the two having decided to become partners for life in both
body and soul, such a system acts as a formal statement of their mutual
trust and good will, and completes their partnership by including their
material goods as well. Finally, it is the most just system since each partner
derives equal benefit from the arrangement. In this way, their union will be
perfected, not only by the spirit of their hearts, but also by their joint pursuit
of material prosperity. Worldly interests, then, instead of dividing them (as is
The most striking disadvantage of this system is that the husband has what
he earns while the wife, since she does not bring wealth from outside the
home, is at a decided disadvantage. Let us take as an example the case of a
young middle-class couple who are just embarking on their matrimonial life:
Since they are just starting out, they have but few belongings, and
sometimes the wife has none at all. The wife, by marrying, loses all capacity
of earning a living since her proper role consists in taking care of the home.
With separate ownership of goods, she would then remain penniless for her
entire future life. She would draw not one penny from this matrimonial
partnership in which she has nevertheless invested all her physical,
intellectual, and moral energies. Legal means had to be devised, therefore,
to rectify to some extent this evident lack of balance. These means consist
of, 1st: the wife’s right to be supported by her husband; 2nd: other means
which various jurisdictions may allow, such as bequests of insurance policies,
sums of money, household goods, etc. The husband’s will, carefully and
wisely made, constitutes another proof of his devotion by making adequate
provision for his wife’s security in the event that he predeceases her.
As stated above, most states and provinces have adopted the Personal
Property System (or separation of goods) as their one standard system. In
some jurisdictions where the Community Property (or joint ownership)
System exists, this last system is not necessarily imposed upon the partners,
but leaves them free either 1) to take this Community Property System,
purely and simply as described in the respective laws of these jurisdictions;
or 2) to choose the Personal Property System; or 3) to make special
prenuptial agreements that in reality create some sort of “made to order”
system, provided that its provisions do not run contrary to law.
1) GENERAL PRINCIPLES
The Catholic Church’s inflexible and never-changing attitude towards divorce
and problems related to it is common knowledge to all. At the same time,
this attitude is widely misunderstood and as widely misinterpreted.
a) In the case of the Pauline Privilege: This privilege, under the authority
directly conceded to the Church by God, permits the dissolution of the bonds
4th.) The Catholic Church does not recognize as valid the marriage of a
Catholic party with a Catholic or a non-Catholic party if this “marriage” is
performed outside the Catholic Church, i.e. when it is performed by a
Protestant minister, by a Justice of the Peace, etc. Such a marriage has the
following effects:
i) It is regarded by the Church as public concubinage.
ii) The children born of this union are illegitimate.
iii) The “married” couple are to be regarded as public sinners and
cannot be admitted to the Sacraments nor can they be given a
Catholic burial service (See Lesson 8, page 181).
5th ) The Catholic Church regards the civil law permitting divorce as a law
against the law of God which stands for the indissolubility of marriage.
6th ) A Catholic party would be entitled to avail himself (herself) of this law of
divorce in one case only: if the Catholic Church has already recognized his
(her) marriage as invalid.
3) Divorce: a) The laws of most states of the United States and of most of
the provinces of Canada are at variance with the teachings of the Catholic
Church on the matter of divorce. b) All states of the United States except
South Carolina have laws and courts for the granting of divorce. Even the
State of New York, which is said to grant divorce only on the grounds of
adultery, has other legal machinery that allows the annulment or dissolution
of the marriage bond for other reasons. The words are different but the effect
is the same. c) In Canada, all the Provinces except Quebec, have laws and
courts for the granting of divorces. In Prince Edward Island, although a
statute (still in force) set up a provincial court for divorce, that court has
refused to exercise jurisdiction for many years. People of Quebec and Prince
Edward Island may however be divorced but only by a special act of the
Parliament of Canada.
More than most contracts of civil law, which are temporary and short-lived
acts, the last will and testament merit serious study since they are a final
act, the last important act of a man’s life as regards his material possessions.
In this section we shall deal with 1) the nature and characteristics of the will;
2) its importance; 3) the various kinds of wills; 4) practical cases.
The will is not to be regarded as an evil omen, nor as a sad and woeful thing.
It is a simple act of foresight and love. You love your wife, your husband, your
children, your beneficiaries, whoever they may be, and you desire that after
your death they may derive every benefit possible from the possessions
b) Characteristics:
1) Deed of gift: By the will you divest yourself of all your property, to be
effective at your death. Until that moment you continue to enjoy your
property and to dispose of it as you please. Your beneficiaries receive only
what you leave.
3) Unlimited liberty of the testator: In most countries, the law allows the
testator unlimited freedom in making out his will. Thus, he is free to dispose
of his property to whomsoever he wishes, and in the proportion that he
wishes within certain limits set by law and insofar as such disposition is not
contrary to public order or to good morals. For example, the legislative
authorities of some places have enacted that, where a testator fails to make
adequate provision in his will for dependants, payment of certain allowances
may be ordered by a court of competent jurisdiction.
b) Importance for the legatees: That man is rare indeed who has no
occasion for some particular concern towards some special one among his
family or his friends. Perhaps the object of this special solicitude may be an
infirm or sick child; it may be one whom nature has not so lavishly endowed
as others; it might be an incorrigible spendthrift, or some rash person who
makes costly blunders or business deals that would swallow up more than
the amount of his inheritance. It could be a wife who is absolutely incapable
of managing business matters. Many other such cases could be noted but, in
brief, it is evident that in these cases justice does not call for the usual equal
division of property. In fact, unusual precautions must often be taken to
prevent the dissipation of the property through ignorance, wastefulness, etc.
The importance of the well made will is reflected in the happy or unhappy
condition of many a legatee. Frequently, a blow that might have been
disastrous to an entire family has been averted by the foresight and wisdom
of the testator, characteristics that now live after him in the happiness of
those for whom he had made wise and prudent provision.
4) PRACTICAL CASES
1) Express yourself simply: Your last wishes will be clearer and easier to
execute.
2) Do not use words when you do not know their exact meaning: e.g.
untransferable, unseizable, usufruct, fiduciary, etc. Otherwise, you risk
creating inextricable situations.
4) Never make two wills within one document. For example, never make your
will within the same document that contains your wife’s will.
5) Use blank paper. Difficulties may arise from the use of letterheads or
papers containing other marks.
6) Make sure to sign your name and have the witnesses sign at the very end
of the will and add nothing below your signature.