History 442/542 Witches in Europe:  Power and Belief, 1300-1750

Canon Law on Marriage

During the period of the Gregorian Reforms, canon law on marriage underwent profound transformations. These can be summarized briefly:

• With regard to marriage and divorce, the legislation of the eleventh and twelfth centuries implanted firmly the doctrine of marital indissolubility; the only permissible grounds for divorce and remarriage were impotence, incest (i.e., marriage within the forbidden degrees of consanguinity and affinity), and adultery. This threatened to end the widespread practice of divorce; it also encouraged the church to assert its judicial authority over marriage law; and it diminished the ability of family and kin to control marriage independently.
• The forbidden degrees of consanguinity and affinity remained high, although the ban was reduced from seven degrees to four. The cummulative effect of this, of course, was to encourage exogamy--i.e., marriage outside one's native community--and the growth of supralocal marriage markets.
• The reforms codified a trend toward monogamy, already well under way by the turn of the millenium, which supplanted earlier forms of polygynous plural marriage, such as Friedelehen (a form of second-class marriage).
• The canonists also asserted authority over the sexual practices of laypeople: the reform-era legislation was generally milder than earlier regulations, but continued to uphold the notion that sex for any purpose other than procreation within marriage was sinful. All nonmarital sex was condemned as criminal; all homosexual intercourse was forbidden.
• Finally, the reform legislation reinforced and implemented long-standing prohibitions against clerical marriage and concubinage.

With its emphases on the necessity of consent and on sex as a positive good in marriage, and this conceptualization represented a departure from the hostility and revulsion toward sexuality that characterized the writings of many earlier canonists. As it developed after Gratian, canon law also distinguished between two kinds of vows, and weighed them differently depending on whether these vows had been consummated sexually.

1. “Present Vows” (sponsalia per verba de praesenti)
Present vows were an exchange of promises in the present, for the present, between consenting male and female (i.e., "I, Margot, take you, Hannes, to be my husband now and forever"). In general, these were thought to constitute a valid marriage, even if the vows were exchanged in secret and without the consent of parents and kin.

• If present vows were consummated, i.e, if they were sealed spiritually through sex, they constituted a valid marriage and were therefore indissoluble.
• If present vows were left unconsummated, the union could still be dissolved if (a) one of the two parties entered a monastery (i.e., took a higher vow) or (b) the pope granted a dispensation from the requirements of canon law.

• Therefore they could be dissolved by mutual consent of the parties involved;
• If one of the two made present vows with somebody else (i.e., took a higher vow);
• If one of the two moved to a foreign land;
• If one of the two had sex with somebody else;
• If one of the two became a heretic or an apostate; or
• If one of the two became a leper.

At the same time, however, canon law also insisted that marriages should be public; the Fourth Lateran Council banned clandestine marriages. The Council's intent had been to provide an effective means of enforcing consanguinity laws: by making marriage public, incest impediments might come to light more easily. The Council also intended to counteract the problems caused by a definition of marriage based on consent and sex: in a court of law, it was difficult to prove or disprove whether the parties to a marriage had exchanged vows consensually or consummated the union freely. Also, a prior secret marriage could invalidate a later, public one. And this, in turn, threatened marriage the social functions of marriage as a tool of alliance-making and property transfer. As James A. Brundage notes,

The upper classes sought to make their marriages as public and as splendid as possible, not only as a matter of honor and social obligation, but also to assure that property transactions connected with the marriage would be honored.