What Makes a Marriage Valid?

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By Maria Mercedes van der Ree, Crisis Magazine, Aug. 9, 2017

Maria Mercedes van der ReeMarriage is a sacrament that is regulated by Church law, mainly in the Code of Canon Law of 1983. It is different from the rest of the sacraments, because what makes it valid is mainly marriage consent. A person must want to get married to his spouse, and manifest this will verbally to the priest or deacon at the wedding ceremony. Marriage is defined by the Code in c. 1055, as a covenant between a man and a woman who wish to be together for life, and that has two natural ends: the good of the spouses and the procreation and education of children. How do we enter into this wonderful and sacred reality? Are there any requirements established by the law? The answer is yes, the validity of a canonical marriage rests upon three “pillars”: consent, absence of legal impediments, and canonical form. The law establishes that:

“The consent of the parties, legitimately manifested between persons qualified by law, makes marriage” (1057, §1).

Here, in a nutshell, is the “consensual principle.” But … what does this mean?

Consent Makes Marriage
The first pillar of marriage is consent. It makes marriage, plain and simple (c. 1057, § 1 and Catechism n. 1626). A valid consent though. When is it valid? When it is naturally sufficient and legally efficient. Meaning that it is manifested legitimately by legally able people (persons qualified by law) capable to bind themselves by their marital consent. It is not an either/or but a both/and requirement. Both aspects must be met.

Consent is naturally sufficient when it suffices in itself as binding to each spouse. It is complete as far as the inner will of the spouses. It does not suffer from any vices that may make consent invalid. Those vices would constitute grounds of nullity. There is one marital consent that binds the couple into marriage, which is constituted by each individual consent manifested by each spouse at the altar. To be naturally sufficient, the content of marriage consent must be in accordance with what the Church understands marriage to be, as it is explained in c. 1055.

Consent is called the “efficient cause” of marriage. Without it, there is no marriage. The Catechism explains it well:

  1. 1626: “The Church holds the exchange of consent between the spouses to be the indispensable element that ‘makes marriage.’ If consent is lacking, there is no marriage.”

It has the capability of transforming the inner reality of two people: it transforms them into spouses. Like having a child makes you a parent, consenting to marriage makes you a spouse. This is also the basis for the theory of marriage nullity, when there is no true consent, then there is no marriage, and it may be declared null by the Ecclesiastical Tribunal. What a person consents to is basically accepting the other as a spouse, this is known as conjugality.

Notice the wording of paragraph 2 of c. 1057 which establishes the content of marriage consent:

“Matrimonial consent is an act of the will by which a man and a woman mutually give and accept each other through an irrevocable covenant in order to establish marriage.” (c. 1057§2)

It has been a shift the 1983 Code took from its predecessor, the 1917 Pio-Benedictine Code in this particular issue. Vatican II—and especially the Pastoral Constitution Gaudium et spes—had a lot of influence in this matter. When after the Council, the special groups where established to reform the 1917 Code, the idea was that the theology contained in the Council documents would see a legal form within the new Code. Let’s not forget Pope St. John Paul II was one of the Council’s Fathers, and was the one who promulgated the 1983 Code. So, even though the work for the reformation of the Code began before his pontificate, it was in his pontificate that several key legal texts were promulgated: the 1983 Code of Canon Law (for the Latin rite), the Catechism of the Catholic Church and the Code of Canons for the Eastern Churches (for the Eastern rites).

Let’s go back to the wording. Canon 1057§2 says that the content of marriage consent is the act of the will of a man and a woman to give and accept each other (as spouses) to establish marriage.

Compare it to the previous wording of the 1917 Code, where it was established that marriage consent was the act of the will where the parties agreed to give and accept the rights to the body (ius ad corpus), perpetual and exclusive, for the purpose of performing the actions apt by their nature to procreate children.

This is an example of the iuscorporalism that prevailed in the 1917 Code. The new Code reflects the vision of Vatican II, a personalist one. You accept the other person as your spouse, not merely a perpetual and exclusive right over his/her body to have children. Marriage is broader, it is a greater and more profound reality. As explained in the Catechism:

“The consent consists in a ‘human act by which the partners mutually give themselves to each other’: ‘I take you to be my wife’ – ‘I take you to be my husband.’ This consent that binds the spouses to each other finds its fulfillment in the two ‘becoming one flesh.’” (n. 1627)

By the way, the Theology of the Body of Pope St. John Paul II follows also this line of thinking.

The law establishes that consent cannot be substituted. It is a personal act, a personal decision. Since the times of the Romans, the aphorism nuptias non concubitus sed consensus facit was established, meaning that it was consent and not consummation, what made a marriage valid. The Church teaches that consummation gives a particular firmness to marriage: a sacramental marriage between baptized (ratum) that has been consummated (the spouses have become una caro or one flesh), may not be dissolved, not even by the pope. But it is consent—and not consummation—that makes a marriage legally valid. Take for example the marriage between Our Lady and St. Joseph. The Church acknowledges it is a valid marriage, even though it was never consummated.

Absence of Legal Impediments
Consent is the first pillar. Then, we have absence of legal impediments as the second one. This pertains to the “legally able” requirement of the canon. A person may manifest a truly naturally sufficient marriage consent, but, if he/she is not legally able to enter into marriage, then that consent although naturally sufficient is not legally efficacious and has no legal effects. In other words, it is invalid.

What is an impediment? It is a prohibition to enter into marriage established by the law. It renders a person unqualified to contract marriage validly (c. 1073). Some impediments have their foundation in Divine law (like the consanguinity impediment that prohibits parents marrying their children); others have their foundation in ecclesiastical law (like the sacred orders impediment, that prohibits a priest to marry). They are contemplated in the Code in canons 1083-1094. Impediments are “restrictive” norms, because they restrict the exercise of the right of marriage (to get married). As such, they must be interpreted strictly, as c. 18 establishes. The complete list of impediments is: lack of age, impotence, prior marriage bond, disparity of worship, sacred orders, perpetual vow of chastity, abduction, crime, consanguinity, affinity, public propriety and adoption.

Every person has what is known as ius connubii, or the right to get married (ius is “right” in Latin, a right that is acquired). It is a human right, and is established in c. 1058, when it says, “All persons who are not prohibited by law can contract marriage.” It is also recognized in international law legal instruments. In some cases, this right is restricted to protect a more important end. In the impediments, the person does not renounce the right per se (ius connubii) but the exercise of the right. In other words, one keeps the entitlement of the right, but does not make use of it.

Canonical Form
Marriage consent must be legitimately manifested, this is the third pillar. It makes reference to what is known as “canonical form,” which may be ordinary or, in special cases, extraordinary. It applies to all Catholics (this being reaffirmed by Pope Benedict XVI in his 2009 Motu proprio “Omnium in mentem”), and requires marriage to be celebrated in the presence of a qualified minister (the priest or deacon) who assists the marriage and before two witnesses. The qualified minister must be either the local ordinary (for example the bishop), pastor, or a priest or deacon delegated by either of them. The duty of the minister is to ask and receive the marriage consent from the spouses; he is a public witness of the legal act of marriage, which affects the public good of the Church. Remember that marriage is the only sacrament in which the ministers are the spouses. Here the priest is just a qualified minister, a witness, who blesses the union. The couple gets married because of their own will, their consent legally manifested provided it is naturally sufficient and able to produce legal effects. In the first centuries, before canon law was developed as such, Christians married under the laws of the land where they lived, and sought the blessing of the bishop.

Canonical form as an element of validity of marriage has not always existed. Current canon law establishes that if there is absence of form—unless permitted by law—marriage is null. It has not always been the case as it is not a requisite that comes from Divine law (like consent and some of the impediments), but from ecclesiastical law. It was the “Tametsi Decree” of the Council of Trent, in 1563, which established canonical form as an element of validity of marriage, that was later reaffirmed by the “Ne Temere Decree” of 1907. The rationale behind these decrees was to solve the problems of clandestine marriages that plagued the Middle Ages. It reaffirmed also that manifestation of consent must be verbal or by equivalent signs, not by the sexual act.

Since canonical form does not have its origin in Divine law, one must realize that it may be changed. It has not been the case since the sixteenth century when it was established, but the Pope could modify this if he wished. Until then, it must be observed by all Catholics who wish to enter a valid canonical marriage. Our current Code establishes canonical form in canons 1108-1117. Canonical form takes into account many details, usually unknown by the spouses, like which priest is qualified to be a minister, if he has the proper delegation, etc. Sometimes involuntary mistakes take place and the marriage is null. They may be corrected with the proper legal instruments. It is a matter that should be taken very seriously by the clergy, so all marriages are valid.

Marriage is granted favor iuris, or the favor of the law (c. 1060). This protects marriage and the spouses. It helps preserve their canonical rights. The law establishes a presumption, that is legally binding, in that all marriages celebrated in the Church are considered valid. Thus, validity is always presumed, not nullity. On the contrary, nullity must be proved.



Maria Mercedes van der Ree is a lawyer, who holds a Master of Arts in Theology, with a concentration in Moral Theology and Canon Law, as well as a Master’s degree in Canonical Law of Marriage and a Master’s degree in International Law. She currently is a doctoral candidate in Law at the International University of La Rioja in Spain. She works as an Auditor at the Interdiocesan Ecclesiastical Tribunal in the Archdiocese of Lima, Peru, where she lives with her husband and her four children. She teaches canon law locally and writes in the Canon Law Journal of Peru (Revista Peruana de Derecho Canónico).