Describe the nature, qualities and essential object of matrimonial consent according to Canon law and Canonical Doctrine. Comment on the required capacity of the parties to give a valid consent.

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                University of Malta

                Aloysius Bianchi

Canon 1057.1 of the Code of Canon Law states, “A marriage is brought by into being by the lawfully manifested consent of persons who are legally capable this consent cannot be supplied by any human power”

  1. Describe the nature, qualities and essential object of matrimonial consent according to Canon law and Canonical Doctrine
  2. Comment on the required capacity of the parties to give a valid consent.

                         Canon 1057.2 defines what matrimonial consent is, an act of will by which a man and a woman by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage.

                         Natural capacity, capacitas, is the capacity of the parties to posit a human act. So the consent must be from both parties and it must be an act of will. Consent cannot be feigned. It has to be deliberate and free, a deliberate act, which is a result of a series of internal acts to thought. It has to be free as well, meaning not forced upon the parties. A marriage is brought into being by the lawfully manifested consent of persons who are legally capable. This consent cannot be supplied by any human power.(Canon 1057.1) It has to be externally manifested: society needs to know. Consent must be mutual.

                         In Gaudium et spes (par.48) one finds, “The intimate partnership of married life and love has been established by the Creator and qualified by His laws. It is rooted in the conjugal covenant of irrevocable personal consent”. Marriage is not something that was invented by man, but is a natural right derived from natural law. When referring to marriage as a natural institution we mean that the foundations of marriage are pre-given, they are inherent to the human nature, and therefore cannot be modified.

                        From the above quote one can see that marriage albeit described as a covenant does not lose its character as a contract based on the consent exchanged between the two partners: Il qofol tal-ghaqda taz-zwieg qieghed fl-‘iva’ li r-ragel u l-mara jaghtu lil xulxin meta jizzewgu precizament bil-hsieb taz-zwieg. Dan hu l-kunsens.. Permezz tal-bdil ta’ dam il-kunsens tibda ssehh rabta qaddisa li twassal ghal ghaqda ntima ta’ hajja u mhabba bejn ragel u mara, imhabba miftuha ghat-tnissil ta’ hajja gdida fl-ulied  . The Church holds the exchange of consent between the spouses to be the indispensable element that “makes the marriage.” If consent is lacking there is no marriage.

                      The consent given in marriage is directed towards the setting up of a covenant of life and love between the couple through the fulfillment of the obligations of marriage. The capacity must be measured against and be in proportion to the object of consent (i.e. the fulfilling of the essential obligations of marriage) which is going to be posited.  What are the essential obligations of marriage? One can utter that the essential obligations of matrimony are all those elements which have reference to one or more of the elements that constitute marriage:-

                      These obligations include: The obligation concerning the conjugal act of carnal union, as bodily union and basis of procreation; the obligation of the community of life and love as an expression of the union between man and woman, mutual well-being, which is inseparable from the provision of an environment conductive to the reception and education of children,; and the obligation to receive and bring up children within the context of a conjugal community. It is important to remember that these essential obligations must be mutual, permanent, continuous, exclusive and irrevocable so that there would be an incapacity if one of the contracting parties should be, due to psychological cause, incapable of assuming these obligations with the essential characteristics. 

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                        The contracting parties must therefore possess the capacity to fulfill these obligations of marriage, because marriage is a contract based on the consent exchanged between the two partners and a contract by its very nature, cannot exist without an object on which agreement is reached. “In marriage there is a contract whereby one is bound to pay the other the marital debt; wherefore just as in other contracts, the bond is unfitting if a person bind himself to what he cannot give or do, so the marriage ...

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