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Canon Law for Today

By Rev. Frank Morrisey

Rev. Frank Morrisey

The church’s understanding of marriage has evolved through the centuries

There is probably no sector of Canon Law that touches the faithful more directly in their daily life than the section of the code on the sacrament of matrimony. For this reason, a certain number of columns will be dedicated to this important theme.

The church’s understanding of marriage has evolved somewhat through the centuries. For a long period of time, marriage was simply considered as a contract between the spouses for an exchange of rights over each other’s body for acts apt for the generation of children. The law was based on what could be verified externally.

At the time of the Second Vatican Council, however, a new understanding of marriage was put forward in Gaudium et spes. Rather than considering marriage simply to be the union of two bodies, the council spoke of it in terms of the union of two persons. Of course, the notion of person includes the physical dimension, but it also includes the mind and the heart.

What looked like a small change almost immediately had major consequences. Formerly, a marriage was presumed valid if the couple had lived together and had children. But, with the new understanding of “person,” it became obvious that there were many situations where, although there was the union of bodies, there was no union of heart or of mind. In other words, what on the surface appeared to be a valid marriage, oftentimes was not so in fact.

A second change spoke of marriage as a covenant — a partnership between the couple and God. It is no longer seem as a mere contract, but rather as a faith commitment “in the Lord.”

The third change introduced by the council was the focus on the union of the persons. While there still was the exchange of rights over each other’s body, the focus now shifted slightly to encompass what was called “the good of the spouses,” the establishment of a community of conjugal life. Canon Law cannot speak of love, because this is something that cannot be evaluated externally, but the dimension of sharing human affection is certainly one of the major reasons why a couple would wish to marry today.

We have to keep in mind that, in some places, where marriages are often arranged by the parents or by the clan, the couple do not even know each other at the time of the wedding, and so they learn to love the person they married. In North America, our tendency is to marry the person we think we love.

Neither the council nor the code attempted to determine what would be the essential elements of this community of life. These too can vary from culture to culture. This determination became the role of the marriage tribunals in the church, as the judges examined a given situation and compared it to general principles.

The first two canons in the code relating to marriage try to take all these elements and restate them in legal form (canons 1055 - 1056). Thus, they begin by referring to the marriage covenant and then immediately add “between a man and a woman.” The code is not speaking of any other type of union, even though such forms may be recognized civilly. The purpose of the covenant is to establish between the spouses a partnership of their whole life which by its nature is ordered to their well-being and to the generation and education of children. When such a covenant is entered into between two baptized persons (whether or not they be Catholic), such a union is considered to be a sacrament.

Marriage is brought into being through the mutual consent of the parties, and no human power (such as parents or the state) can supply for it.

Once a marriage is celebrated, it is marked by two special properties. The first is its unity, that is, between one man and one woman. This, of course, raises the whole question of simultaneous polygamy as practised in some countries. In North America we often encounter serial polygamy, where one or both spouses have entered into several previous marriages. The second property is its indissolubility, which means that the church does not recognize divorce as a means of putting an end to the covenant established between the parties. In other words, marriage is presumed to last for the life of the couple.

There are, of course, many situations in which, in spite of outward appearances, the wedding did not produce a marriage. There were obstacles preventing the parties from giving their full consent to the commitment. In such instances, the church holds that there never was a sacramental marriage and, consequently, the parties could be declared free to enter into a new union. We shall examine some of these situations in a subsequent article.

The Catholic Church has suffered much to maintain its teaching on the unity and indissolubility of marriage. The Reformation period certainly had this as one of the major factors to be considered and the events surrounding King Henry VIII’s life fit into this context.

The present canons are based on the dignity of the human person, with all its strengths and weaknesses, but also on the capacity of each person to make a commitment for life in the presence of God. This is indeed a noble calling.


Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 21st article in a series.