The Validity of a Marriage is Determined by Proper Consent

marriage2Marriage as we know it today originated in the twelfth-century. It was the result of the efforts of the Gregorian reform movement to wrestle full jurisdiction over marriage from the pagan-influenced customs of the feudal nobility. The latter treated marriage as means of forming strategic alliances with other families, or as a way of keeping wealth within an extended family. Arranged marriages precluded consent which often meant that it precluded love. They were often arranged before the child (usually the daughter) had even reached adolescence.

Church authorities used a variety of strategies to accomplish its goals, one of which was that fact that within Latin Christendom it was the Church that determined whether a particular marriage was valid or not. People wanted their marriage to be valid; it determined the legitimacy of their children and their ability to inherit. The Church knew this. But its problem was that it did not possess a uniform definition of what constituted a valid marriage.

The ecclesiastical courts in Italy at the time ruled a marriage as valid if it was consummated. Bologna was the center of canon law and this was the generally accepted conclusion among the canonists. In France, the courts determined a marriage to be valid if it was effected by mutual consent. Paris was the center for theological studies and the French theologians clashed with the canonists on this matter.

Historian James Brundage has written extensively about this debate. In Law, Sex, and Christian Society in Medieval Europe he notes that in Italy at the time (mid-twelfth century) if a couple had publically consented to marriage, they were acknowledged as being married. However, if subsequently, before they had consummated the relationship, the wife had engaged in intercourse with another man, she was henceforth married to the man with whom she’d had intercourse. Consummation determined the validity of the marriage.

In the French courts, in spite of the fornication, the woman would still be married to the man she originally consented to marry. This debate was decided once and for all by Pope Alexander III (1159-1181), who, despite being a canon lawyer himself and trained in Bologna, chose the French definition of a valid marriage. A marriage that was not yet consummated could be dissolved and the couple could remarry, but consent alone constituted its validity. The elevation in importance of consent was the priority of the reformers in order to bring an end to the nobility’s stranglehold on the institution.

In his recent remarks, Pope Francis appears to be defining marriage differently. He seems to claim that if subconsciously there was no commitment to the marriage’s indissolubility, even though it was affirmed in a ceremony, then it is possible that the marriage is not valid:

“It’s provisional, and because of this the great majority of our sacramental marriages are null. Because they say ‘yes, for the rest of my life!’ but they don’t know what they are saying. Because they have a different culture. They say it, they have good will, but they don’t know.”

This is a significant departure from Church teaching on marriage.


One thought on “The Validity of a Marriage is Determined by Proper Consent

  1. For a Catholic, The Validity of a Marriage is Determined inter alia by Proper Consent.

    Can. 1059 [] Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law</b but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage.


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