By Dr. Keith Borg – Partner
Marriage is based upon a ‘pact’ entered into by the contracting parties; a distinction is to be drawn between this same ‘pact’ and the ‘relationship’ existing between the parties.
The former is the genesis of the latter. Both ‘pact’ and ‘relationship’ are correlated by a link of cause and effect. The traditional nomenclature appears therefore eloquent when distinguishing between matrimonium in fieri on the one hand and matrimonium in facto esse on the other. The latter refers to the marriage in its ‘being’, that is, the stable ‘relationship’ or reality being lived out. The former refers to the marriage in its ‘becoming’, that is, the initial constitutive moment when the relationship or reality is brought into ‘pact’. Such correlation has been explained in the following words: “[…] causa efficiens matrimonii est consensus […] expressus […]” ~ St. Thomas Aquinas.
Matrimonium in fieri is therefore the one and same inseparable reality of sacrament and marriage under the term foedus (covenant) and contractus (contract).
‘Covenant’ involves, in essence, personal commitment and excludes the idea of revocation; ‘foedus’ includes specific contractual obligations, which it, at the same time transcends.
As such, ‘covenant’ implies substantial change and adds significant elements to the term ‘contract’. The term ‘covenant’ adds a biblical connotation: the content of the alliance to which the spouses freely consent.
Of the essence to the covenant or contract is the exchange of consent, which is the efficient cause of marriage. Consent confirms a choice, a personal and non-transferable human act. Consent cannot but be actus voluntatis: a knowledgeable action (nihil volitum nisi praecognitum), free and voluntary, by virtue of which two subjects endowed with faith uti singuli intend to unite in communitate omnis vitae, determining a unity in the nature of the same contracting parties. As such, no human law can recognise a marriage as valid if such is vitiated by a substantial defect in consent and thereby rendered null under natural law.
Importantly, a particular choice is defined, and made to differ from all other choices by the object around which the same choice is centred. Spouses explicitly “[…] consent to marriage and implicitly to the mutual yielding of the right over the acts proper to marriage […]” ~ St. Thomas Aquinas.
As per the teachings of His Holiness Pope John Paul II, Marriage is a communion personarum, a common union of two persons (male and female), a permanent joining of two embodied persons who, retain their individuality and complementary qualities and establish a unity between themselves (una caro), which unity is marriage.
The permanent marriage bond is a moral entity formed by a mutual and irrevocably permanent commitment to seek the common good proper to marriage. By being a habit of love, this commitment sets the will to seek the good of another person; by being a habit of justice, this commitment sets the will to seek the same good due by reason of a contractual agreement.
The right to marriage, or ius connubii, constitutes a natural right of the human person; it comprises not only the right to contract marriage but also the right to choose one’s spouse freely. The capacity or ability to contract marriage similarly flows from the nature of the person and therefore from natural law. Such is not granted by human law, which can merely regulate it, even to the extent, in certain cases, of limiting or removing the ability of the person to exercise this right. As such marriage may only be limited for grave and just reasons and restrictive laws are to be interpreted in the strict sense.