On the sacramentality of marriage : the divergence of canon law and theology and the inability to maintain the presumption of facere quod facit ecclesia

Abstract

The CIC/83, the living law (ius vigens) of the Latin Catholic Church, contains 110 canons on marriage in cc. 1055 – 1165. [The 1990 Code of Canons of the Eastern Churches contains a similar section, cc. 776 – 866]. The sacred canons, in general, are a compilation of theological statements that are presented in juridical terms. The canons on marriage, like those of the other sacraments, commence with a theological statement defining the essence of the sacrament. The first canon, c. 1055, states that (§1) the marriage covenant, for the baptized, has been raised to the dignity of a sacrament by Christ the Lord and that (§2) a valid marriage contract cannot exist between baptized persons without being a sacrament. A requirement of c. 1099 is that one must not be in error (error iuris) concerning the unity, indissolubility, or the sacramental dignity of marriage. Additionally, c. 1101, §2 states that when by a positive act of the will one excludes marriage itself or an essential element or an essential property, that marriage is invalid. The expectation of cc. 1099 and 1101, therefore, is that sacramentality be included at the time of exchange of consent. From the time of the scholastics, contract and sacrament have been identified as one for the baptized, hearkening to a time when civil legislation attempted to subvert the authority and oversight of the Church regarding (sacramental) marriage. At the Second Vatican Council, the constitution Gaudium et spes reinterpreted marriage as a covenantal relationship between man and woman. A covenant and a contract are not identical terms. More importantly, marriage was again seen as a covenant, and as a covenant, for the baptized, it Father Glen J. Pothier 2 is sacramental. Sacrosanctum Concilium, which set forth principles for the reform of the sacramental and liturgical life of the Latin Church, stated that sacraments presuppose faith. The International Theological Commission identified that there are members of the baptized faithful, Catholic or non- Catholic, who are unbelievers, who may have been baptized as children but have had no further faith elucidation, or, as members of non-Catholic ecclesial communities, do not believe in the seven sacraments of the Catholic Church, or, in particular, that marriage is a sacrament. Such persons would not, then, understand that sacramentality must be exchanged on the day of marriage. Rotal jurisprudence has reflected this change. In addition to the presumption that sacraments require faith, another presumption exists when the Church expects that the baptized marry according to the mind of the Church (the mens Ecclesiae), that is, facere quod facit Ecclesia, ([by] doing what the Church does). But in a society that is weakened by divorce, secularism, and a lack of understanding of what the Catholic Church understands by the sacrament of marriage, this presumption needs to be reexamined. Through research on the historical development of theological and canonical principles, and by means of independent studies of large groups of baptized Catholics and non-Catholics, it becomes increasingly clear that the theologico-juridico principles of c. 1055 and the sacramentality of marriage must be revisited.