What is the Catholic position on common law marriage?


#1

My understanding of “common law marriage” is the institution whereby a man and a woman (let’s leave all discussion of “same-sex marriage” out of this thread) move in together, and they present themselves to others as husband and wife, and by doing this they legally become husband and wife, without needing any formal ceremony or marriage license. Common law marriage, as defined, used to be widely recognised in the United States, but nowadays most states have abolished it, and only a handful retain it.

So, let’s consider a man and a woman who live in a state which still recognises common law marriage, and they do this. They’ll legally be recognised as married under the laws of the state in which they live. But would the Church recognise that marriage is valid? Well, obviously, if either the man or the woman are Catholic, the marriage is invalid for lack of canonical form. But what if neither are Catholic–would the Church recognise the marriage as valid in that case?

Suppose neither the man and the woman are Catholic, and then later one of them wants to convert to Catholicism. Would the Church accept their legally recognised pre-conversion common law marriage as valid? Or would it insist on convalidation or radical sanation?

Suppose either or both the man and the woman are Catholic, and they enter into a legally recognised common law marriage, as described. Obviously, their marriage is invalid due to lack of canonical form. (And while the requirement for canonical form can be dispensed, my reading of canon 1127 is that doing so isn’t allowed for common law marriages, since they don’t meet the requirement for a “public celebration” which it imposes.) But could such a marriage be radically sanated? Or is convalidation required?

Finally, some have suggested that the requirement for canonical form be abolished; for example, canon lawyer Edward Peters so argues. I think, whether or not he is right, there can be no doubt that it is a requirement of church-made law not of divine law or natural law, and so the Pope has the power to abolish it if he thought it was prudent to do so. But, if that happened, would it not follow that common law marriages, entered into in those states where they are legally recognised, would be valid even for Catholics?


#2

For the baptized, the consent must be correct for validity, even if the form is dispensed and not Catholic.

If is called de facto unions.
vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001109_de-facto-unions_en.html

From that document:

The Second Vatican Council points out that so-called free love (“amore sic dicto libero”)[13] constitutes a factor that breaks down and destroys marriage because it lacks the constitutive element of conjugal love which is based on the personal and irrevocable consent whereby the spouses give and receive one another mutually, giving rise to a juridical bond and a unit sealed by a public dimension of justice. What the Council calls “free” love, which opposes true conjugal love, was then—and is now—the seed that produces de facto unions. Later, with the speed of today’s socio-cultural changes, it has also given rise to the current projects to confer public status on de facto unions.


#3

Would a couple in a legally recognised common law marriage not have consent? If they freely choose to live together as if they were husband and wife, and if they freely choose to present themselves to others as being husband and wife, and if they do that knowing that under the laws of the state in which they live that those acts are sufficient to marry them, and as a result of doing those acts they are married, have they not through their voluntary actions consented to that marriage? Of course, I can imagine circumstances in which a couple in a common law marriage might not have correct consent–for example, a cohabitating couple might live in a state with common law marriage but be ignorant of its existence, and hence find themselves legally married to each other without ever having intended to be so married; conceivably two people could even end up in a common law marriage in spite of an explicit desire on their part not to marry each other. What I think this means, is we cannot presume that consent to be married is automatically present or absent in a common law marriage, without considering the details of each individual case.

If is called de facto unions.
vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001109_de-facto-unions_en.html

From that document:

The Second Vatican Council points out that so-called free love (“amore sic dicto libero”)[13] constitutes a factor that breaks down and destroys marriage because it lacks the constitutive element of conjugal love which is based on the personal and irrevocable consent whereby the spouses give and receive one another mutually, giving rise to a juridical bond and a unit sealed by a public dimension of justice. What the Council calls “free” love, which opposes true conjugal love, was then—and is now—the seed that produces de facto unions. Later, with the speed of today’s socio-cultural changes, it has also given rise to the current projects to confer public status on de facto unions.

I think, a “de facto” union is legally distinct from a “common law marriage”. For example, Australian law recognises de facto unions–a couple who live together, in a similar way to that in which married couples do, are legally recognised as a de facto couple, and the law treats them for most purposes identically to married couples–however, they are not legally considered to be married. By contrast, a common law marriage, as recognised in a handful of US states, is a legally considered to be marriage, and couples in a common law marriage are legally considered to be just as married as couples married in a civil or religious ceremony are.


#4

OK, I can see that common law marriage is different that what the Vatican document calls de facto: “De facto unions do not imply marital rights and duties, and they do not presume to have the stability that is based on the marriage bond.”

I agree that one could not assume valid consent because a common law marriage does not require that. To form a valid marriage between two that are free to marry, the consent must be free of coercion, and intend an exclusive and lifelong union, open to children.


#5

Lets say the couple in sit down before they make the decision to move in together.
They do want to get married but couldn’t be bothered with getting “a piece of paper”. They both are fully aware that they could be married just by living together for so long.They communicate this knowledge to one another and decide that is how they will be married.

would this be considered consent?


#6

Yes, that would generally be considered consent.

The Church generally recognizes “natural marriages” among non-Catholics as valid marriages, unless you’re talking something like polygamous marriages or concubinage. If a common law married couple were to become Catholic, obviously Father would want to get them married/convalidated in a more formal way. But the bar for natural marriage among non-Catholics, and even among baptized non-Catholics, is not terribly high.


#7

It is consent to something, but may not be proper consent. To form a valid marriage between two that are free to marry, the consent must be free of coercion, and intend an exclusive and lifelong union, open to children.


#8

How many people enter into a marriage with a civil ceremony, or even a church wedding (including Catholic ones), yet lack the intention of an “exclusive and lifelong union, open to children”? I think more and more people enter marriage with the attitude “let’s see if this works out, and if it doesn’t, divorce isn’t hard, then we’ll each be free to try again with somebody else”. I think that was basically the point Pope Francis was trying to make with his “the great majority of sacramental marriages today are not valid” comments (except he was being a bit overly hyperbolic in the process, and unfortunately the controversy induced by his hyperbole distracted from his point)


#9

That raises an interesting question. If the criteria for the validity of a marriage under natural law are more lenient than those under canon law–to what extent is that a requirement imposed by God, and to what extent is that a law of the Church?

Obviously, the Church has the power to impose legal requirements on the faithful which are stricter than those demanded by natural law or by divinely revealed law, and the Pope has the power to alter those Church-made laws from time to time as he judges it prudent to do so. (In particular, the Council of Trent taught that the Church has the power to legislate rules to invalidate marriages which would, but for those rules, be valid marriages.) So, if the Pope thought it was prudent to do so, could he alter canon law so that most or all marriages which would be valid under natural law alone would also be valid under canon law? Or are there some scriptural requirements or other theological reasons which would prevent him from doing so? Is there a scriptural or theological requirement for canon law to be stricter than natural law on this point? (And if there is such a requirement, how far does it extend?)

And then there is the question of whether any such possible alteration would be prudent at the current time or in the future? As I mentioned when I started this thread, Edward Peters argues that the requirement for canonical form should be abolished, which would bring canon law into closer alignment with natural law. I don’t think Peters proposal is likely to be accepted any time soon, because it would remove a major cause for annulments, which would make obtaining an annulment harder, when the current direction appears to be towards making them easier instead. But I’d say in general, the greater the gap between canon law and natural law, the greater the number of possible grounds for annulment will exist, and anyone who would like to see annulments be less frequent should be willing to seriously consider the argument for narrowing that gap.


#10

Yes.

Impediments to marriage fall into two categories: divine law and ecclesial law. The Pope is free to remove any ecclesial law impediments he sees fit. No power can remove divine law impediments. That’s not exactly the same things as “natural law”. I’m not sure exactly how you are using the phrase “natural law”, it seems you are equating it with whatever is civilly valid.


#11

No way of knowing because some spouses are deceitful, and also there is error.


#12

No, I don’t mean by “natural law” whatever is civilly valid. I mean what the Church means by it, which to my understanding is that part of the objective moral law which is knowable through the use of reason alone, unaided by special revelation. (“Divine law” is broader than “natural law”, because divine law includes divine commands which can only be known by means of special revelation, whereas those are excluded from the definition of “natural law”.) The civil law is based on the natural law, but imperfectly so: at times the civil law may prohibit things which the natural law allows, and conversely the civil law may allow things which the natural law prohibits.

The natural law gives the civil authorities a certain degree of leeway to prohibit things which the natural law by itself allows; but that leeway is not unlimited. So, considering the topic of marriage: under natural law first cousins are allowed to marry, but some civil jurisdictions prohibit such marriages, and I would say that is within the (naturally) lawful power of the civil authorities to do that. On the other hand, the natural law says that marriages between a man and a woman of different races is valid, yet some civil jurisdictions (some US states prior to 1967, apartheid South Africa) prohibited such marriages, and I think unlike the case of prohibiting first cousin marriage, this is a morally impermissible addition to the natural law; it exceeds the valid legislative powers of the civil authorities under natural law. (The Church has long opposed anti-miscegenation laws as immoral; the Catholic Bishops of the US submitted an amicus brief against them during the US Supreme Court case of Loving v. Virginia in 1967, and likewise in the 1948 Supreme Court of California case Perez v. Sharp which struck down anti-miscegenation laws in California.)


#13

“Common Law Marriage” is a secular legal term, and only really applies to matters that involve the “state”. So to the church they’re still living in sin :smiley:


#14

I don’t believe that’s true of persons absent Christian Faith. What should be expected of them in regard to marriage to avoid sin? Arguably no more than acting in good conscience which should accord with the natural law.


#15

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