|Jan Steen: Marriage of Tobias and Sarah|
Edward Schillebeeckx in his book "Marriage. Human Reality and Saving Mystery" makes the point that considered in relation to the marriage customs of the ancient near east and Phoenicia in particular,
"[…] it immediately becomes apparent that faith in Yahweh in effect “desacralised” or secularised marriage – took it out of a purely religious sphere and set it squarely in the human secular sphere."Historically, the restriction of the sacramental nature of marriage to the religious rite has the consequence that the state may then presume to exercise absolute control over the civil contract. However, Peter Elliot in his book "What God Has Joined" made an important and helpful distinction in response to Schillebeeckx, saying that we should:
"give a respectful regard to Marriage before Christ as a created reality, rather than a 'secular reality'."This applies also to marriages of non-Catholics (Christian or not) which are recognised by the Church if the couple have exchanged vows. The principle in Roman law was nuptias non concubitus sed consensus facit. (Consent, not sexual intercourse makes marriage.) Similarly, in the Church, it has always been recognised that it is the consent which is the matter and form of the sacrament of matrimony and not the priestly blessing, and that the spouses minister the sacrament to each other. (Among the Orthodox, a different view has prevailed, especially since the 19th century, making the blessing the actual form of the rite, but there is evidence of many earlier Orthodox theologians accepting the older view that it is the consent which is essential.)
In the Catholic Church today, it is common for couples to be married even though one spouse is not baptised. In such a case, the priest applies to the Bishop for a dispensation from the (invalidating) impediment of "Disparity of Cult." This is routinely given when the Catholic has signed a form saying that they will do all in their power within the unity of their marriage, to have the children baptised and brought up as Catholics. They can then be married according to the rites of the Church. However, what is often forgotten (for example in the choice of prayers) is that this is not a sacramental marriage.
A non-baptised person is not capable of receiving any other sacrament. Nor are they able to minister the sacrament of matrimony. The sacrament cannot therefore be received by the Catholic party. This fact is recognised by the Church's legislation in that there are certain circumstances when such a marriage can be dissolved, whereas a valid (and consummated) sacramental marriage can never be dissolved. Nevertheless, a non-sacramental marriage is recognised as a valid union, a reality created by God at the beginning of the human race, natural and good.
(In the case of a mixed marriage between a Catholic and a validly baptised Christian who is not in communion with Rome, there is no invalidating impediment. The Parish Priest is required to obtain the same undertaking about the upbringing of the children and then formally give permission for the marriage to take place, but if he were to forget, it would not invalidate the marriage. The Catholic and the non-Catholic but baptised spouse would contract a valid and sacramental marriage.)
So there is no question of the Church retreating to "religious marriage" as opposed to "civil marriage." We simply don't accept that there is any such thing as a "purely civil marriage." Any valid marriage - whether sacramental or not - is a union created by God and subject to the jurisdiction of the Church as the Council of Trent teaches. (See: Luther, Trent and getting out of state marriage.)
This might sound an outlandish claim and indeed, for prudential reasons, the Church nowadays does not attempt to intervene in the civil jurisdiction which is exercised over marriage. However, there are common examples of where the Church does exercise her jurisdiction. For example, if Caius, an Anglican, wishes to marry Livia, a Catholic, but was previously married to Claudia, another Anglican, he can apply to the matrimonial tribunal of the Diocese for the first marriage to be investigated and the Church will often grant a decree of nullity. If Caius and Claudia were both non-baptised people married in the Register Office, a similar process might take place, or a case brought for dissolution of the marriage on the grounds of the Pauline privilege. In such cases, the Church is exercising her jurisdiction over civil marriage without reference to the state.
It is true that currently, in these cases, the tribunals insist that a civil divorce be obtained. Again, this is a purely prudential decision on the part of the Church to prevent the tribunal being drawn into any subsequent civil litigation. The point is that the Church recognises sacramental marriages between non-Catholic Christians as well as natural, non-sacramental marriages where one or both spouses is not baptised - and exercises jurisdiction in relation to such marriages.
Paul Priest (On the Side of the Angels) has raised the question of whether it is now right for us to co-operate with the civil arrangements for marriage, since marriage likely to be re-defined in such a way that it would give scandal etc. if we were to to co-operate with it. It would not be formal co-operation, and I am of the view that it would be legitimate material co-operation, especially if we are given no option in civil law to conduct marriages without couples previously or subsequently going through the civil arrangements for marriage. In fact, we have for some time co-operated with civil arrangements for marriage that allow for "no-fault" divorce through mutual consent. That is clean contrary to the teaching of the Church but we accept that couples can register their marriages civilly, having completed the Catholic pre-nuptial enquiry and assented to the indissolubility of marriage. If the SSM Bill is passed, couples going through the civil registration would also have to assent, at least implicitly, to the truth that marriage is a union between a man and a woman.
Neil Addison (Religion Law Blog) helpfully pointed out that under s75 of the Marriage Act (1949) it is a criminal offence for anyone to solemnise a Marriage otherwise than in accordance with the Act. Paul Priest suggests that the (fairly common) process of convalidating invalid marriages (when the couples take the vows again in the canonical form) would therefore be illegal - though in fact no effort has been made to prosecute priests for solemnising such marriages. Perhaps this could be got round by saying that the state has already recognised the marriage. However, as Neil Addison pointed out even more pertinently, Muslims routinely solemnise marriages without the marriage being registered under the civil law. (See for example: Muslim Marriages (Again)). Neil is keen to insist that Muslims should conduct their marriages within the terms of the Marriage Act (1949), something that they could do without much inconvenience and without contravening the Islamic faith.
Now that marriage is being re-defined before our eyes, I think that the whole question is up in the air again. I would like to see a situation where a couple could celebrate their marriage (not "religious marriage", just marriage - for the reasons I have already given) and then afterwards sign the civil partnership schedule if they wish to benefit from the civil benefits that the state may make available from time to time. But this would require a change to the Marriage Act (1949) and to the Civil Partnerships Act (2004). The compromise I will probably have to put up with is de-registering the Church and having the Registrar come to do the civil registration - as happened before 1949.
A note for commenters
I am sorry that this is rather a long and complex post, but I thought is would be good to have something for people to refer to. Do by all means correct me if I am mistaken in civil or canon law, and add your own thoughts. However on this post especially, forgive me if I do ask that you read the post carefully before commenting. Marriage is a pitfall for the unwary theologian or canon lawyer. (And as ever, I insist proudly: I am not a canonist, I am a dogmatist.)