Lack of Form - Illicit versus Invalid


#1

I am looking for theological underpinning of why marriage of Catholics outside of the church is invalid rather than simply illicit. In reading Tametsi from the council of Trent, the primary purpose was to keep clandestine marriages from taking place and hence requiring them to be performed as a public act. It also prescribes the publishing of banns of marriage which are no longer required so this seems more a mater of discipline rather than doctrine.

I guess I am trying to understand the theological basis of why a marriage between two protestants could be valid if they are married by a justice of the peace, while those same two people if they are Catholic would be in an invalid marriage. This seems to be more a matter of canon law rather than a sacramental impedance so why is it not simple illicit for Catholics to marry outside the canonical form?

I am familiar with canon law in regard to this as well as having read Tamesi and Ne Temere, but none of these explain the sacramental theology on why canonical form has only been required for the last 450 years. If it wasn’t an impediment for the first 1500 years, why is it now?

Just looking to understand how canonical form impacts the confection of the sacrament of matrimony. Any one that can point me to a discussion on the sacramental theology behind this would be great.


#2

[quote="Usige, post:1, topic:310482"]
...

Just looking to understand how canonical form impacts the confection of the sacrament of matrimony. Any one that can point me to a discussion on the sacramental theology behind this would be great.

[/quote]

Hello,

I don't know of any such discussion and can think of no theology (sacramental or otherwise) which is behind the requirement of canonical form. It is a matter of law for Catholics and the Pope could change it tomorrow without using any theological rationale. That is my opinion, anyway.

Dan


#3

Correct.

I am not sure where you got the idea banns are no longer required.

Can.* 1067 The conference of bishops is to establish norms about the examination of spouses and about the marriage banns or other opportune means to accomplish the investigations necessary before marriage. After these norms have been diligently observed, the pastor can proceed to assist at the marriage.

There are many items in canon law that create an impediment to valid marriage that are not divine law, for example Canon 1083 regarding age, canons regarding affinity, . Other canons merely codify divine law, stating what exists, such as Canon 1083 regarding impotence.

Because through her power to bind and loose, the Church takes care to protect her members.

Perhaps reading the Commentary on the Code of Canon Law regarding the nature and effects of impediments. Particularly Canon 1073 regarding diriment impediments. Those bound by an impediment such as this one are generally capable of marriage, but are legally disqualified from it in this instance. Impediments restrict the natural right to marry in the interest of the good of the Church or the individual.

That answers your question as to why non-Catholics marry validly when they marry civilly. They are not impeded by the law of the Church since ecclesial law does not govern them and they have a natural right to marry.

Divine law impediments bind all persons, ecclesial impediments bind Catholics. Divine law impediments cannot be dispensed, while ecclesial laws can be dispensed.

Remember, also, that the Church teaches that a valid marriage between the baptized is by that fact a sacrament (by the fact of their baptism). So it is validity that is key, sacramentality is a function of being baptized. So, two individuals in a valid natural marriage who become baptized automatically have a sacramental marriage-- they take no action, speak no vows anew, do not require any blessing by the Church.


#4

The issue is very fundamental. Most people understand diriment impediments (though they may not know the Catholic terminology), and they apply to everyone.

That's not where the confusion lies. The confusion lies in the application of divine law. Divine law requirements for marriage are very simple: the exchange of consent between two persons capable of marriage (i.e., no diriment impediments present). People get confused when the Church enacts ecclesial law that effectively supercedes divine law. This is a subject that has interested and confounded me personally, and have not yet received a coherent answer from religious leaders or others.


#5

Hello,

I would only say that it is the capable parties’ *properly manifested *exchange of consent that makes marriage. There has to be some external sign/action/word which makes the internal consent of the mind apparent to the parties and, by extension, society at large. I think it is well within the right of the state and Church to lay down regulations as to how a “citizen’s” consent must be expressed. So, I don’t see it as ecclesiastical law “superceding” divine law–divine law does not explain how consent is to be made known, only that consent makes marriage. Ecclesiastical law determines how this divine law is exercised in practice.

Similar “applications” of divine law can be seen in other Sacraments. For example, the need for priests to have a “faculty” in order to absolve and (at least in the Latin Church) confirm. Divine law says nothing about these faculties.

Dan


#6

Divine Law in and of itself is enough for some (non-Catholics) and not for others (Catholics). Divine Law is also sufficient in and of itself for validity of some sacraments (Holy Orders, Baptism, etc.), but not others (Marriage). This confounds me.

Clandestine marriages are an utter non-issue in today’s world. The problems lie more with Baptism, and to a lesser extent Holy Orders. It would seem to me that if the Church can make Divine Law not sufficient in and of itself via ecclesiastical law, the same should be done where the real issues lie today: Baptism and Holy Orders.


#7

My understanding is that marriage has a history as a legal contract prior to being elevated to a sacrament by Christ. The requirements for the validity of such a contract can therefore be modified by the Church. In a similar way, the faculties or other requirements for the juridic act that is part of the Sacrament of Penance can be regulated by the Church.

These are in contrast to e.g. the Eucharist or baptism, where regardless of new rules the Church may introduce, the sacrament is still valid if it meets the conditions required yesterday, or last year, or hundreds of years ago.


#8

[quote="Usige, post:1, topic:310482"]
I am looking for theological underpinning of why marriage of Catholics outside of the church is invalid rather than simply illicit. In reading Tametsi from the council of Trent, the primary purpose was to keep clandestine marriages from taking place and hence requiring them to be performed as a public act. It also prescribes the publishing of banns of marriage which are no longer required so this seems more a mater of discipline rather than doctrine.

I guess I am trying to understand the theological basis of why a marriage between two protestants could be valid if they are married by a justice of the peace, while those same two people if they are Catholic would be in an invalid marriage. This seems to be more a matter of canon law rather than a sacramental impedance so why is it not simple illicit for Catholics to marry outside the canonical form?

I am familiar with canon law in regard to this as well as having read Tamesi and Ne Temere, but none of these explain the sacramental theology on why canonical form has only been required for the last 450 years. If it wasn't an impediment for the first 1500 years, why is it now?

Just looking to understand how canonical form impacts the confection of the sacrament of matrimony. Any one that can point me to a discussion on the sacramental theology behind this would be great.

[/quote]

The Church is the safeguard of faith and morals, and has the authority to bind and loosen sins. All of the Holy Mysteries (sacraments) of the Catholic Church must be celebrated by Catholics, with valid matter, form, and intention according to what the Church has determined and which has varied with place and time. Non-Catholics are not bound to the merely ecclesiastical disciplines of the Catholic Church, but are bound to those of their particular church or ecclesial community, and of course to divine laws.


#9

Thanks for everyone's replies. I had never looked at it as an impediment since I kinda think of those as immutable states (eg permanent impotence, consanguinity, etc). It never registered that a specific act (or lack of act) would be an impediment.


#10

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