442CanonLawonMarriage

Canon Law on Marriage: A Primer

Image: The Arnolfini Marriage (1434), by Jan van Eyck (c. 1395-c. 1441) WebMuseum of Art.

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 had been 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.

This left open the question of how a marriage came into being. This matter was given much sharper definition in Gratian's Decretum (ca. 1140). Gratian tended to regard marriage as a process with two stages: (a) in initiation, the couple exchanged freely-consenting vows of marriage, which created a spiritual union between them; in the (b) completion or perfection of the marriage, the couple created a physical union by consummating their bond sexually. Both stages were necessary to complete a marriage: no sexual union constituted marriage without consent to marry, just as no marriage as wholly formed without sexual union. Indeed, for Gratian it was sexual intercourse that transformed the union into a "sacrament" and made a marriage indissoluable. If marriage was situated between three kinds of union -- sexual, spiritual, and social -- Gratian's Decretum shifted definitions strongly toward the first of these. But not to the neglect of consent: only a marriage freely entered was valid, if both parties were at least seven years old, both were Christian, and neither were bound by an oath of chastity. This

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.

2. “Future Vows” (sponsalia per verba de futuro)
Slightly more complicated were future vows of marriage exchanged between consenting parties (i.e., "I, Margot, promise to take you, Hannes, to be my husband at such-and-such a date"). Future vows were obligating, but did not constitute a marriage for the present.

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.

In this system, the social dimension of marriage got short shrift: Gratian was no enthusiast for clandestine marriage, but his emphasis on consent and sexual consummation left little room for parental consent or the need for public, ceremonial marriage. Indeed, Gratiann's emphasis on consent grew stronger: Pope Alexander III (1159-1181) ruled that future vows, if they were given freely and consummated sexually, constituted an indissoluable marriage. Neither parental or kin-group consent, nor dowries, nor publicity were needed to complete a marital union.

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.

From 1215 on, therefore, canon law on marriage formed between the sometimes contradictory requirements of consent and publicity, which may explain the hesitance of theologians to affirm the sacramentality of marriage unequivocally. Albert the Great (c. 1200-1280) allowed it, but only because the sacrament helped married people achieve the goals of marriage (Brundage, 432). Duns Scotus (1270-1308) solved the problem by distinguishing two types of marriage: by itself, free mutual consent created a valid marriage, but only a church ceremony established sacramental marriage. Others absorbed sacramentality into Gratian's two stages: in the first stage, a couple received sacramental grace when they exchanged vows, in the second when they consummated the union sexually. The view which ultimately prevailed, however, was that of Thomas Aquinas, who affirmed that marriage was a sacrament and that the exchange of consent itself conferred grace (Brundage, 433).

James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987); Merry Wiesner-Hanks, Christianity and Sexuality in the Early Modern World: Regulating Desire, Reforming Practice (London: Routledge, 2000); Ruth Mazo Karras, Sexuality in Medieval Europe: Doing unto Others (London: Routledge, 2005).