Commentary by John Farrell
See also William Marshner, “Divorce or Annulment?”
Marriage Has Been Redefined
From Randy Engel’s Theology of the Body: A Study in Modernism
What the major differences between the canons on marriage found in the 1917 Code of Canon law and the 1983 revised version?
Fundamentally, the former embraces an “institutional” and “procreative” model of marriage and the latter represents a “personalist” model as envisioned by the Conciliar Fathers and by John Paul II. The contrast between the two is immediately evidence in their respective canons.
In the opening canons of the Sacrament of Matrimony of the 1917 Code (Book III, Part I, Title VII) we read:
Canon 1012. Christ our Lord raised the actual marriage contract between baptized persons to the dignity of a sacremnt. Wherefore, there can be no valid matrimonial contract between baptized persons which is not also necessarily a sacrament.
Canon 1013. The primary purpose of marriage is the procreation and education of children. The secondary purpose is to furnish mutual aid and remedy for concupiscence. The essential characteristics of marriage are its unity and indissolubility, which obtain a special stability in Christian Marriage by virtue of the sacrament…
Canon 1015. A valid marriage of the baptized is called ratified if consummation has not yet been completed. It is called ratified and consummated if between the spouses the conjugal act has taken place, to which the contract is ordered by its nature and by which the spouses become one flesh.
Canon 1081. Matrimonial consent is the act of the will by which both parties give and receive a perpetual and exclusive right over each other’s body (ius in corpus) for the purpose of acts which are suitable of themselves for the procreation of offspring.
Contrast this with the following canons of the 1983 Code (Book IV, Part I, Title VII):
Canon 1055. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole life and which is ordered by its nature to the good of the spouses (bonum conjugum) and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.
Canon 1057. 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.
Canon 1061. A valid marriage between the baptized is called ratified only if it has not been consummated; it is called ratified and consummated if the spouses have performed between themselves in a human fashion (se humano modo) a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh.
Note that in Canon 1055 a new end–bonum conjugum or the “good of the spouses” is created and given first place, but is undefined. Obviously, the entire concept of “remedy for concupiscence” has been eliminated.
John Farrell commentary: All consummated marriages end at death. Almost all American nullity cases are based on defective consent (canon 1095). This means one lacked due discretion/capacity for what was essential (to the object of consent). Essential has been redefined by the Spirit of Vatican II to include almost anything regarding relationship dynamics. Pre-Vatican II, one needed to be able to simply “mate.” In post Vatican II praxis, one must be able to “soul mate.” So today if the interpersonal relationship was less than desired, one can get a c. 1095 annulment (incapacity to consummate in a human manner). Now that consummation has been redefined in the 1983 code to include ‘in a human manner,’ the garden variety consummation just won’t do any more. When people hear this, they detect fraud because of what their bishop never told them about consummation.
“The new criteria [for consummation] must also include a union of mind, soul and affections.” – Randy Engel, Theology of the Body: A Study in Modernism
“Warmth, tenderness, self-sacrifice, responsibility, cooperativeness, good manners—nobody knows where the list ends.” – William Marshner, Annulment or Divorce?
On the Authority of the Bishop Regarding Marriage Cases
Council of Trent
CANON VIII. If any one saith, that the Church errs, in that she declares that, for many causes, a separation may take place between husband and wife, in regard of bed, or in regard of cohabitation, for a determinate or for an indeterminate period; let him be anathema.
CANON XII. If any one saith, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema. Session XXIV, 11 November 1543
Pius VI
[T]hese cases pertain to the tribunal of the Church alone for no other reason than because the marriage contract is truly and properly one of the seven sacraments. Epistle “Deessemus nobis,” to the Bishop of Motula, Sept. 16, 1788
Pius IX
We say nothing about that other decree in which, after completely despising the mystery, dignity, and sanctity of the sacrament of matrimony; after utterly ignoring and distorting its institution and nature; and after completely spurning the power of the Church over the same sacrament, it was proposed, according to the already condemned errors of heretics, and against the teaching of the Catholic Church, that marriage should be considered as a civil contract only, and that divorce, strictly speaking, should be sanctioned in various cases (Denzinger n.1767); and that all matrimonial cases should be deferred to lay tribunals and be judged by them (Denzinger n.1774); because no Catholic is ignorant or cannot know that matrimony is truly and properly one of the seven sacraments of the evangelical law, instituted by Christ the Lord, and that for that reason, there can be no marriage between the faithful without there being at one and the same time a sacrament, and that, therefore, any other union of man and woman among Christians, except the sacramental union, even if contracted under the power of any civil law, is nothing else than a disgraceful and death-bringing concubinage very frequently condemned by the Church, and, hence, that the sacrament can never be separated from the conjugal agreement (Denzinger n. 1773), and that it pertains absolutely to the power of the Church to discern those things which can pertain in any way to the same matrimony. – “Acerbissimum vobiscum,” Sept. 27, 1857
The conditions under which the seeking of a civil separation (the so-called “separate maintenance”) is tolerated are set down in a response of the Sacred Congregation of the Holy Office: “..there must be present just causes for the separation in the Judgment of the bishop..” – Holy Office, 1860
Leo XIII
[M]arriage is holy by its own power, in its own nature, and of itself, it ought not to be regulated and administered by the will of civil rulers, but by the divine authority of the Church, which alone in sacred matters professes the office of teaching. – Arcanum, 1880
Council of Baltimore III, 1884
We command all (i.e. baptized) married persons that they must not go to the civil courts to obtain a separation from bed and board without previously receiving permission from the ecclesiastical authority. Should anyone attempt this, let him know that he incurs the guilt of grave sin and that he is to be punished as the bishop shall decide. – Article 126
Synod of Rhode Island IV, 1957
Under pain of mortal sin Catholics may not approach the civil courts to obtain a civil separation, divorce or annulment, unless Our explicit permission has been given to them to do so. – No. 262. §1
Synod Portland, 1957
Husbands and wives who in disregard of divine and ecclesiastical law live apart are to be admonished to resume life in common; should they refuse, they should be denounced to the Ordinary.
Because of the very serious prohibition of church law, as well as because of the considerable scandal involved, the faithful shall be informed that no suit for civil divorce may be open unless permission of the Ordinary will have previously been obtained.
All marriage cases are to be referred to the Chancery Office by the parish priest of the plaintiff. Decrees 53, 310 and 312
Diocese of Lincoln, 1997
Validly married Catholics are strictly forbidden to institute civil divorce proceedings for a decree of separate maintenance or divorce without the previous authorization from the Ordinary. – Article 5.12.2
Canon law 1983 code
Can. 1692§2. Where an ecclesiastical decision has no civil effects or if a civil sentence is not contrary to divine law, the bishop of the diocese of the residence of the spouses, after having weighed the special circumstances, can grant permission to approach the civil forum.
Can. 1671 Marriage cases of the baptized belong to the ecclesiastical judge by proper right.
Can. 1401 By proper and exclusive right the Church adjudicates: the violation of ecclesiastical laws and all those matters in which there is a question of sin, in what pertains to the determination of culpability and the imposition of ecclesiastical penalties.
Can. 1696 Cases of separation of spouses also concern the public good; the promotor of justice must, therefore, always intervene, in accordance with can. 1433.