The Relationship between Canon 776 of CCEO and canons 1 -2 of m.p.

Crebrœ Allotœ

Introduction

The promulgated Codex Canonum Ecclesiarum Orientalium (=CCEO)1 can be

styled as the Magna Carta, the first of the kind ever given by the Apostolic See to the
Eastern Churches, and a milestone in the history of the Catholic East. The promulgation of
the new Eastern Code indeed marks the crowning event of the far-fetched venture initiated
by the pastoral solicitude of Pope Pius XI under whose presidency a Commission started
functioning as far back as 1927.2

The Commission gave way in 1929 to another Preparatory Commission of

Cardinals, headed by the eminent canonist, Cardinal P.Gasparri,3 the chief architect of the
1917 Code of Canon Law4 (= CIC/17). Six years later, in 1935, Pope Pius XI appointed a
Pontifical Commission for the Codification of the Eastern Canon Law. By the year 1948
that Pontifical Commission had given shape to a final draft of the entire Code which was
submitted to Pope Pius XII for promulgation. In fact, the promulgation of the Code took
place only piecemeal by separated motu proprios, not, however, covering the entire
legislation.
The Motu proprio, Crebrœ allotœ (= CA), promulgated by Pope Pius XII in 19495
contained the matrimonial legislation which, according to many eminent canonists, was
meant for all Eastern Christians, Catholics and Orthodox. The 131 canons of CA constituted
an almost verbatim reproduction of the corresponding canons of the CIC/17. CA had also

1
Codes canonum Ecclesiarum Orientalium, auctoritate Ioannis Pauli PP. II promulgatus, in AAS 83 (1990),
1033 -1363.
2
Cf. J. VADAKUMCHERRY, “The Marriage Laws in the Code of Canon Law and Code of Canons of the Eastern
Church”, in Studia Canonica, 26 (1992), p. 437.
3
In response to the request of the bishops at the First Vatican Council, Pope Pius X ordered the creation of a
general Roman Catholic canon law codification, which did not exist at that time. He entrusted Pietro Gasparri,
who was aided in the work by Giacomo della Chiesa (the future Benedict XV) and Eugenio Pacelli (the
future Pius XII). Perhaps the ablest canonist in the Roman Curia at the time, the work of codification,
simplification, and modernization of canon law was for the most part the work of Gasparri.
4
Codex Iuris Canonici, Pii X Pontificis Maximi iussu digestus, Benedicti Papae XV auctoriate promulgatus,
in AAS 9 (1917) I, 3-521.
5
Cf. A.A.S. vol. XXXI (1949), n. 2, pp. 89-117.
borrowed from the CIC/17 the same general structure, the same division into twelve
chapters, and an almost identical content in each of the canons.6
Pope John XXIII having had in mind the convocation of the Second Vatican
Council, wanted to have the entire legislation of the universal Church revised and updated
in the light of the Conciliar decrees, and hence stopped promulgation of the remaining parts
of the Eastern Code. Although in 1963, a Pontifical Commission was appointed by Pope
John XXIII for the revision of the Latin Code of 1917, which started functioning only in
1965 under Pope Paul VI. The Pontifical Commission was appointed under the
chairmanship of Cardinal Joseph Parecattil in 1972 by Pope Paul VI for the revision of the
entire legislation of the common law for the Eastern Churches, and the Commission’s work
was launched following the convocation of a Plenary Session of the Commission on 18
March 1974. The final, 1986, draft of the Code, was published in Nuntia, nos. 24-25
(1987/1-2). The final draft was again revised by the Plenary Session of the members of the
Commission held 3-14 November 1988. On 18 October 1990 Pope John Paul II
promulgated the Eastern Code entitled, Codex canonum ecclesiarum orientalium — Code
of Canons of the Eastern Churches.7
The CCEO has adopted the schematic structure of division into titles, chapters,
articles, and canons. The division into titles would indeed recall the ancient classical
canonical collections of the Eastern Churches. The ninety-one canons on marriage, cc. 776-
866, are contained in title XVI, “Divine Worship and especially the Sacraments,” in chapter
VII, “Marriage,” the canons being distributed in eight articles. Six chapters of the previous
legislation, CA, have been dropped, namely, those dealing with impediments in general,
impedient impediments, secret celebration of marriage, time and place of marriage, effects
of marriage, and second marriages, and the pertinent canons were included in articles on
physical persons, diriment impediments in general, mixed marriages, form of celebration of
marriage, and in the preliminary canons respectively. Although the impediment of mixed
marriage has been lifted in the revised legislation, it is however treated in a separate article
owing to the special pastoral problem it entails.8

6
Cf. J. VADAKUMCHERRY, «The Marriage Laws», pp. 438-439
7
Cf. D. Faltin, «La Codificazione del Diritto Orientale», in La Sacra Congregazione per le Chiese Orientale
nel Cinquantesimo della Fondazione 1917-1967 , Rome, 1969, pp 127-128
8
Cf. J. VADAKUMCHERRY, «The Marriage Laws», p. 441.
1. Motu proprio, Crebrae Allotae

In CA dated February 22 1949, His Holiness Pope Pius XII published and promulgated a
Code of law for the Eastern Church which on 2 May 1949 became the sole law governing
marriages of Catholics of the various Eastern Rites. Though the bulk of the legislation
represents a modern version of the ancient juridical traditions and customs of the Near East,
in some instances circumstances necessitated certain changes, some call it radical changes,
which did not meet with the wholehearted approval of the interested parties.9
The Holy See also realized that in order to assure a sound administration of the law
and in order to give the administrators a maximum of certainty, drastic steps had to be taken
with regard to those portions of the existing law which were not incorporated into the new
draft. Hence, in no uncertain terms and in a most sweeping manner the Holy Father
abrogated all existing canonical provisions not incorporated in or contrary to the provisions
in the new Code. This abrogative clause includes all legitimate customs and all canonical
provisions whether they emanated from a local, provincial or ecumenical synod. It also
includes all general as well as particular regulations issued by former Popes and the various
Roman Congregations.
In other words, regardless of what the laws or legitimate customs may have been, as
of May 2, 1949, the only law governing marriages of Eastern rite Catholics is the law
promulgated in CA. It is a indubitable juridical fact that the sole law that governed
marriages of Eastern Rite Catholics was the one published and promulgated in the CA, and
hence all other canonical provisions on marriage, including those of the decree Cum data
fuerit became ineffective as of May 2, 1949, except for those instances in which the new
law allows for some practice based on legitimate custom or an existing particular law.10

1.1 Provisions in Crebrae Aliatae

In reading over the canons of the 1949 legislation, the striking impression is the general
verbatim adherence to the terminology of the canons of the Latin Code CIC/17, although
numerous variations could be noted.11 CA also borrowed the same general structure and the
same division into 12 chapters from CIC/17. The content of the canons was almost
identical. This of course does not mean that the legislation of the CA does not have its

9
S. GULOVICH, «The Motu proprio Crebrae allaîae», in The Jurist, 9 (1950), p. 344.
10
S. GULOVICH, «The Motu proprio Crebrae allaîae», p. 344.
11
S. GULOVICH, «The Motu proprio Crebrae allaîae», p. 346.
limitations. With all due respect for the learnedness, prudence and juridical ability of the
codifiers, the first Code on marriage did contain several obscure points. The reason for this
difference is not only the wish of the Church to uphold genuine Eastern tradition, but also
the different actual situation of Eastern Non-Catholic compared with that of non-Catholic
Occidentals, chiefly Protestants. Among the latter, many are found to be not baptized at all,
or baptized invalidly, so that marriages among them would often be invalid. Eastern non-
Catholic on the contrary did not desert the ancient doctrinal tradition concerning the
sacraments; generally speaking, they baptize validly, and there are no more non-baptized
persons found among them than among Catholics. Marriages with the non-baptized are, in
accordance with local custom, rarer than among Catholics. The Church, therefore, had no
motive for exempting them from the diriment impediment of disparity of worship.12

While c. 1070, § 1 of the 1917 Code exempts non-Catholics from the diriment impediment
of disparity of worship when they marry among themselves, c. 60 § 1 of CA affirms the
ancient tradition of the East as well as of the West that marriages between baptized and non-
baptized persons are invalid, except if a dispensation has been granted by legitimate
ecclesiastical authority. It follows that the baptized non-Catholics referred to in CA must be
Oriental non-Catholics. CA expressed thus clearly that there is a dividing wall not only
between Western and Eastern Catholics, but also between Western and Eastern Non-
Catholic.13 Hence, in adjudicating marriage nullity cases of non-Catholics, it should be
determined in what sect they were baptized. If the denomination traces its origin to the Latin
Church, those who received baptism in this denomination are subject to the CIC. If it traces
to the ancient Eastern Churches, those who were baptized in such a denomination are
subject to CA.14

While the 1917 Code (c. 1094) establishes as essential elements of the marriage form the
presence of the qualified priest and two witnesses at the moment when the parties, requested
by the priest, exchange their consent, CA (c. 85) adds for Eastern Catholics a third element:
the blessing bestowed upon them by the assisting priest. This is an affirmation of the

12
Cf. V.J. POSPISHIL, Inter-ritual Canon Law Problems in the United States and Canada, Chesapeake City,
Maryland, St. Basil’s, 1955, p. 101.
13
Cf. V.J. POSPISHIL, Inter-ritual Canon Law, p.100.
14
Cf. V.J. POSPISHIL, Inter-ritual Canon Law, p. 101.
Eastern tradition, uniform in this point, at least during the last centuries, that the act of
exchange of consent must be accompanied by a religious, liturgical celebration. 15

Canon 5 was a reproduction of c. 1016 of the 1917 Code. With regard to CA there was a
question as to whether the Code applied only to the Eastern Catholics or also to other
Eastern Christians not in full communion with Rome. Until the Second Vatican Council it
was a common opinion that CA was binding not only on the Eastern Churches of the
Catholic fold but also on baptized Eastern non-Catholics as well. The only exception
allowed in this regard was related to the canonical form of the marriage.16

Hence, the Eastern Churches not in full communion with the Catholic Church were bound
by all the canons that existed in those Churches prior to the schism; and all the laws
Legitimately promulgated for Eastern Christians since the separation of the Churches,
whether common to all Catholics or special to the particular Ritual Churches.17 At this time,
the Catholic Church did not attribute any legitimate jurisdiction to the hierarchy in the
Orthodox Churches after their separation. Consequently, those Eastern Christians were
considered not bound by the canonical legislation of their own Orthodox Church if this had
been promulgated after the separation.18

It is to be noted that before CA was promulgated, a marriage between an Eastern Catholic

and an Orthodox celebrated before an orthodox priest was considered valid and a true
sacrament by the Catholic Church, with the exception of marriages in the territories where
the Eastern Catholics were subject to the canonical form prescribed by the Decree of
Tametsi or the Decree Ne ternere.19 But CA created a new situation with regard to the
canonical form of marriage between a Catholic and a non-Catholic of an Eastern rite, a

15
Cf. V.J. POSPISHIL, Inter-ritual Canon Law, p. 122.
16
CA c. 90 § 1-2; Cf. also J. PRADER, «De iure quo regitur matrimonium baptizatonim acatholicorum: ius
conditum et ius condendum», in Periodica, 67(1978), p. 135; B. FRANCK, «Evolution récente du droit et de la
jurisprudence catholiques touchant la validité d'un mariage entre les chrétiens acatholiques dont I'un appartient
à l'Orthodoxie», in Revue de Droit Canonique, 27(1977), p. 277
17
Cf. A. COUSSA, Epitome Praelecfionurn de Iure Ecclesiasrico Orientali, vol. 1, Romae, Typis Polyglottis
Vaticanis, 1948, pp. 11-15.
18
Cf. J.T. KANLAMPARAMBIL, Competence of the Catholic Church in Mixed Marriages: The New Vision of
the Oriental Code, (Doctoral Thesis), Rome, Pontificium Athenaeurn Sanctae Crucis, 1997, p. 61.
19
Cf. J. PRADER, «II matrimonio in Oriente e Occidente», in Kanonica, 1(1992), p. 135.
.
situation which continued up to the Second Vatican Council Decree Orientalium
Ecclesiarurn. The canonical form laid down by CA in canons 53 and 85 stated that a
marriage between a Catholic and a non-Catholic of an Eastern rite was valid only if it was
celebrated before a Catholic priest. It required two conditions: the presence of the Catholic
priest to ask for and receive the consent, and the blessing of the priest, at least, as part of the
sacred rites.20

With this disposition legislation decided to extend to the whole Church the norms contained
in the Latin Code. This was apparently done without evaluating sufficiently the
consequences it could affect in an Eastern environment, where practices were diverse, or
without considering whether the norms would contribute to the equilibrium achieved after
great efforts. The Eastern are more interested in the sacred rite, rather than in the problems
of canonical form. Orthodox Churches could not understand why a marriage celebrated in
their rite could not be considered valid by the Catholic Church. The consequence was that
when the non-Catholic party did not accept the conditions put forward by CA, and he/she
entered into a marriage celebrated in front of the Orthodox minister, that marriage was
considered invalid by the Catholic Church only for this reason. In order to resolve this
difficulty, the Catholic Church conceded slowly to the Patriarchs and to the Ordinaries more
ample facilities to give dispensations, but such measures were only partially effective.21

There were, however, many provisions which either differ from or are not contained in the
Latin Code. One of these was that the priest had to be of the same rite as the contracting
parties or, if of a different rite, must have proper delegation; another was that all marriages,
including mixed marriages, had to be solemnized in conjunction with a Sacre ritus.22 This
was an affirmation of the Oriental tradition, uniform in this point at least during the last
centuries, that the act of exchange of consent must be accompanied by a religious, liturgical
celebration.23 As to the blessing itself, required by c. 85 $2 as an essential part of the
Oriental marriage form, the Redaction Commission resolved on May 3, 1953 that any

20
Cf. B. GIANESIN, «Matrimoni misti tra Catholici e Orthodossi di Grecia», in R. C OPPOLA, (ed.), Incontro fia
Canoni d'Oriente e d 'Occidente, vol. 2, Bari, 1994, p. 494.
21
Cf. J.T. KANLAMPARAMBIL, «Competence of the Catholic Church», p. 63.
22
Cf. S.C. GULOVICH, «The Motu Proprio Crebrae Allatae», pp 348, 355.
23
Cf. V.J. POSPISHIL, «Inter-ritual Canon Law», p. 122.
blessing suffered, as far as validity was concerned, and no special liturgical act was
required.24

2. The Eastern Code of 1990 (CCEO)

As mentioned above, on 10 June 1972 the Pontifical Commission for the Revision of the
25
Code of Eastern Canon Law was set up by Pope Paul VI. At the first plenary session of
the Commission in March 1974, the Pope asked it to revive the law “according to the mind
of the Fathers of the Second Vatican Council and also in the genuine Oriental tradition.”26
The canons on marriage were assigned to one group.27 In June 1980 a proposed schema on
the Sacrament, including marriage, was sent for comment to the Eastern hierarchs, the
Roman Curia, Oriental religious superiors, and Eastern ecclesiastical faculties. After the
study group assessed the replies of these bodies, a new schema of the entire code, including
the revision section on marriage was sent by the Secretariat in 1981 to the membership of
the Code Commission for comment. Their responses helped to form the third draft which
was discussed and approved by the Commission in plenary session in November 1988. This
final draft was sent to the Pope for his consideration in January 1989.28 After papal review,
the new Eastern Code was promulgated on 18 December, 1990 and became effective on 1
October, 1991. The New code came as the second or revised law on marriage.

3. The Relation between Canon 776 of CCEO and Canons 1 & 2 of CA

Pope Pius XII by his CA, dated February 22, 1949 published the first marriage law
for the Eastern Church. On 18 October 1990 Pope John Paul II promulgated the Eastern
Code entitled, Codex canonum ecclesiarum orientalium — Code of Canons of the Eastern
Churches.29 The new code contained ninety-one canons on marriage, cc. 776-866, in title
XVI, “Divine Worship and especially the Sacraments,” in chapter VII, “Marriage,” the
24
AAS, 45(1953), p. 313; Cf. V.J. P OSPISHIL, «Inter-ritual Canon Law», p. 123.
25
See Nunita, no. 3 (1976), p. 11
26
PAUL VI, Allocution of the Members of the Pontifical Commision for the Revision of the Code or Oriental
Canon Law, 18 March 1974, in ibid., no. 1 (1975), pp. 6-7.
27
For the list of the Original members of the coetus de matrimonio, see ibid., no 1 (1973), p.18. the relator
was J. Prader.
28
Cf. “Le osservazioni dei memberi dell Commissione allo Schema Codicis Canonici orientalis e le resposte del
Coetus de expensione observationum”, in Nuntia, no 28 (1989), pp. 3-128.
29
Cf. D. Faltin, «La Codificazione del Diritto Orientale», in La Sacra Congregazione per le Chiese Orientale
nel Cinquantesimo della Fondazione 1917-1967 , Rome, 1969, pp 127-128
canons being distributed in eight articles. This was the second code on marriage after the
CA. The introductory canon 776 CCEO and Canons 1 & 2 of CA gives us not a definition
of marriage, but an description of marriage, which is the subject matter of this paper; the
relation between Canon 776 of CCEO and Canons 1 & 2 of CA.
CCEO M.P Crebrae allatae
Can. 77630 Can. 131
§1. The matrimonial covenant, established by the § 1. Christ our Lord elevated the very contract of
Creator and ordered by His laws, by which a man marriage between baptized person to the dignity of
and woman by an irrevocable personal consent sacrament.
establish between themselves a partnership of the
whole of life, is by its nature ordered toward the
good of the spouses and the generation and education
of the offspring.
§2. From the institution of Christ a valid marriage § 2. Therefore, it is impossible for a valid contract of
between baptized persons is by that very fact a marriage between baptized persons to exist without
sacrament, by which the spouses, in the image of an being by that fact a sacrament.
indefectible union of Christ with the Church, are
united by God and, as it were, consecrated and
strengthened by sacramental grace.
§3. The essential properties of marriage are unity and
indissolubility, which in a marriage between baptized
persons obtain a special firmness in virtue of the
sacrament
Can . 232
§ 1. The primary goal of marriage is the procreation
and education of children; The secondary end is
mutual help and the allaying of concupiscence.
§ 2. The essential properties of marriage are unity
and indissolubility, which acquire a special
firmness in Christian marriage by reason of its
sacramental character.

30
Can. 776. § 1. Matrimoniale foedus a Creatore conditum eiusque legibus instructum, quo vir et mulier
irrevocabili consensu personali totius vitae consortium inter se constituunt, indole sua naturali ad bonum
coniugum ac ad filiorum generationem et educationem ordinatur; § 2. Ex Christi institutione matrimonium
validum inter baptizatos eo ipso est sacramentum, quo coniuges ad imaginem indefectibilis unionis Christi
cum Ecclesia a Deo uniuntur gratiaque sacramentali veluti consecrantur et roborantur; § 3. Essentiales
matrimonii proprietates sunt unitas et indissolubilitas, quae in matrimonio inter baptizatos specialem obtinent
firmitatem rationesacramenti.
31
Motu Proprio Crebrae Allatae can 1 § 1. Christus Dominus ad sacramenti dignitatem evexit ipsum
contractum matrimonialem inter baptizatos; § 2. Quare inter baptizatos nequit matrimonialis contractus validus
consistere, quin sit eo ipso sacramentum.

32
Motu Proprio Crebrae Allatae can 2 § 1. Matrimonii finis primarius est procreatio atque educatio prolis;
secundarius mutuum adiutorium et remedium concupiscentiae; § 2. Essentiales matrimonii proprietates sunt
unitas et indissolubilitas, quae in matrimonio christiano peculiarem obtinent firmitatem ratione sacramenti.
3.1 Marriage as a Sacrament

In their treatment of the sacramentality of Christian marriage, the two Codes show great
divergence, both in the depiction of sacramentality itself and in the description of the
relationship between the natural reality of marriage and the sacrament.

CCEO M.P Crebrae allatae

Can. 776 Can. 1
§1. The matrimonial covenant, established by the § 1. Christ our Lord elevated the very contract of
Creator and ordered by His laws, by which a man marriage between baptized person to the dignity of
and woman by an irrevocable personal consent sacrament.
establish between themselves a partnership of the
whole of life, is by its nature ordered toward the
good of the spouses and the generation and education
of the offspring.
§2. From the institution of Christ a valid marriage § 2. Therefore, it is impossible for a valid contract of
between baptized persons is by that very fact a marriage between baptized persons to exist without
sacrament, by which the spouses, in the image of an being by that fact a sacrament.
indefectible union of Christ with the Church, are
united by God and, as it were, consecrated and
strengthened by sacramental grace.

In CCEO c. 776, natural marriage (§ 1) is distinguished clearly from sacramental marriage

(§ 2). In other words, marriage in general is treated separately from the sacrament. So the
Eastern text keeps the order of creation in a paragraph separate from the order of
redemption, unlike the CA c. 1 which mixes both by declaring that the natural covenant has
been raised to the dignity of a sacrament.33
In CCEO c. 776, the bond of sacramental marriage is portrayed as an image of the union
between Christ and the Church. Unlike the CA, the symbolism of the spouses’ union
receives explicit mention. In February 1977, the Latin parvus coetus did not accept texts
that made reference to the marriage of the baptized being a sign of the union between Christ
and the Church; no explanation was given for the study group’s difficulties with such
redactions. Canon 776 § 2 uses the term sacramemum in two senses: first, in the biblical
and patristic sense of an insertion into the paschal mysteries of the union of Christ and the
Church (reflecting the thinking of Eastern theology); then, in the second sense, as an
efficacious sign of Christ's grace.
Reflecting the thinking of the Eastern Churches the canon is saying that the sacrament
arises not only from the will of the parties, but also from the will of Christ.34 The creation
of a concrete marriage depends on two peoples’ consent, but the essence of sacramental
marriage is God-given. God works through and unites the pair (a Deo uniuntur).
Nonetheless, in this Eastern canon specifically concerned with the sacrament of Christian
marriage, there is no mention of the action of the Holy Spirit, which one might have
expected. In this regard, the Eastern theology found in the Eastern Code’s canons on the
33
P.J Connolly, The Nature of Marriage as proposed in the Codex Iuris Canonici and in the Codex Canonum
Ecclesiarum Orientalium, Saint Paul University, Canada, 1995, p.232
34
See J. PRADER, "Die Ehebegriff im Orientalischen Kodex: Unterschicdliche Bestimungen zwischen dem
CCEO und CIC", in Archi v fur katholisches Kirchenrecht, 160 (1991), pp. 409-410.
nature of marriage tends to be subtle rather than explicit. The Eastern Churches have seen
the action of the Holy Spirit as taking place through the intervention of the priest. The
notion of the divine action uniting the couple is not found in the Latin Code.
When it comes to the notion of "consecration" in the Oriental Code, Gaudium et spes
statement that Christian spouses are "strengthened and, as it were, consecrated" by the
sacrament of marriage has been changed in canon 776 § 2 to the declaration that the spouses
are "as it were, consecrated and strengthened by sacramental grace." The word veluti is
applied to both consecrantur and roborantur, and the reference is to the grace of the
sacrament rather than to the sacrament itself. 35

3.2 Marriage as Covenant and Contract

In describing marriage, c.776 of CCEO follows Vatican II in designation marriage as a

“covenant,” rather than as a “contract” as mentioned in c. 1 of CA.36 It is not, however, as
consistent as Gaudium et spes in its use of covenant language. In fact, CCEO refers to
marriage as a “covenant” in only three canons; but it uses contractual language in reference
to marriage much time. This contractual emphasis in the revised code ism in part, the result
of the long canonical tradition that, at least since the middle ages, has understood marriage
according to the model of a Roman law consensual contract. This was a contract form
which obligations arose not from the exchange of a verbal formula or from the handing over
of the object of the contract, but from the agreement of the will of the consenting
contractant.
The Code’s juxtaposition of covenantal and contractual language and the predominance of
the latter also reflect the fact that its drafters saw “covenant” and contract’ as
interchangeable terms. In response to an objection for a code commission members to use
od both “convent” and “contract” in what would become can 776, The Secretariat
responded: the term “contract” and “convent” are used in one and the same sense, indeed
deliberately, so that it may be more clearly evident that the matrimonial covenant
concerning which Gaudium et spes speaks can be constituted foe the baptised in no other
way than through a contract, even if it is sui generis. Orsy observes “This new relationship
if the movement from contract to covenant is considered as a move to a higher viewpoint.

35
P.J Connolly, The Nature of Marriage, pp .233-234
36
The Latin code refers to the martrimonial contract (see cc. 1055/2 and 1108, /2). While canonical doctrine
requires an appraisal of the marriage in the context of contractual law, it is clear that it is a unique kind of
contract, i.e., one that communicates the grace of Christ. To emphasize this unique quality of the Marriage, the
Eastern code employs the term matrimonial covenant. Avoiding the use of the phrase to contract marriage, the
Eastern code refers to the celebration of marriage (see CCEO 828,/1)
Nothing is lost, everything is enriched; contract is contained in the covenant but does not
exhaust it”. When one considers the decisive role played by the contractual model in
articulating the Church’s understanding of marriage since the Middle Ages, however, it is
difficult to be sanguime about the predominance of contractual language about marriage in
the revised code. A the very least, this predominance could possibly eviscerate the conciliar
teaching on marriage as a covenant by providing a license to use the Roman law of
contracts, understood as the natural law, as the interpretive key for the revised code.

“Covenant” has at least three advantages over “contract” as the prime analogue for
articulating any understanding of marriage.

(1) A first advantage of the covenant analogy is that a covenant is a sacred reality, while a
contract is essential secular in nature. Although “covenant” was also used for ordinary pacts
between peoples, it was the term chosen by the Old Testament authors to designate the
faithful and loving relationship between Yahweh and his chosen people Israel. Especially in
the prophetic book, this covenant was analogized to a marriage to which Yahweh and his
people, a marriage to which Yahweh was unfailing faithful but to which his people were
chronically unfaithful. This covenantal analogy was carried forward in the New Testament,
especially in Eh. 5, where the love of husband and wife is called a “great foreshadowing”
that “refers to Christ and the Church.”
Marriage was first assimilated to a contract not in classical Roman law, but in the
works of the commentators in Roman law as early as the twelfth century revival of the study
of Roman law at Bologna. Once introduction by secular legal scholars, the contractual
model for marriage spread “by a sort of contagion” first among canonists and then among
theologians after the triumph of the theory that marriage was established by consent alone.
Although it was recognized that marriage was a unique contract, the use of the contractual
model encouraged theologians and cannot to employ the tools of the Roman law of
contracts to analyze marriage. While this sort of analysis fostered juridical clarity and was
useful for adjudicating concrete marriage case, it also opened the door for a legalistic
approach to marriage and inhibited the development of a genuinely theological
understanding of marriage.
2) The covenantal model of marriage, while recognizing that marriage gives rise to mutual
rights and obligations, places primary emphasis on the mutual personal commitment of the
spouses. Thus, it is an apt vehicle for expressing the personalist dimension of marriage
stressed by Gaudium et spes and the post conciliar magisterium. The contractual model, on
the other hand, emphasizes the right and obligations that are mutually given and accepted to
constitute marriage and, when these rights and obligation are overemphasized, the personal
dimension of marriage can be altogether or at least largely lost from view.
3) As a result of its emphasis on rights and obligations, the contractual model has
encouraged a narrow focus on matrimonium in fieri, the moment when marriage and its
attendant right and obligations come into being. This primary focus has historically led to a
relative neglect of matrimonium in facto esse, the spouses’ living out of their marital
commitment amid the vicissitudes of daily life. One consequence of this neglect is that the
Church has invested considerably fewer resources and has had considerably less success in
developing progress to assist couples in living out their marriage. 37 The covenantal model
with its emphasis on the personal aspects of marriage can foster more balanced attention to
both dimensions of marriage and more effective pastoral support to the married.

3.3 A Partnership of the whole of Life

By describing marriage as a partnership of consortium of the whole of life, the revised code
retrieves the classic Roman law definition of the jurist Modestinus. Although the term
consortium defies precise translation, it connotes a close association or community of
persons who share a common lot. Less intimate than a communion (communion), a
consortium is more than a partnership (societas) for business purpose. The qualification of
this consortium as one “of the whole of life” underscores that the spouse’s destinies are
inextricably intertwined “in good times and in bad, in sickness and in health.
The canonist spoke of marriage not as a consortium, but as a communion, a more intimate
union of mind and hearts. However, the term consortium was preferred to the term
communion. The reason given was that the term consortium was less ambiguous than
communio and better rooted in the juridical tradition. Nerveless, Communion was the term
preferred by John Paul II in his 1982 apostolic exhortation Familiaris consortio

37
J. Provost, “ Marriage Prepration in the New Code: Canon 1063 and the Novus Habitus Mentis,” in Isu
Sequitur Vitam, ed. J. Provost and K. Walf (Louvain:Leuven University, 1991, p. 190
3.4 The Ends of Marriage

To say that marriage is, by its nature, ordered to the good of the spouses and the procreation
and education of offspring means that, as a natural institution, marriage has certain ends or
finalities that are embedded in the nature of the institution itself (fines operis) and are
independent of the will or intention of the spouses (fines operantis). Since the achievement
of the ends of marriage is somewhat beyond the power of the spouses, the failure to attain
them does not in itself affect the validity of a marriage. For example, even though marriage
is ordered to the procreation and education of offspring, childless marriages are presumed to
be valid. However, if one or both parties exclude this essential end of marriage from their
consent (i.e refuse to give and accept the right to these ends) by a positive act of the will,
they contact invalidly.38

Unlike the 1917 code, the revised code does not propose a hierarchical ordering of the ends
of marriage. Neither the good of the spouse nor the procreation and education of offspring is
designated as the primary end of marriage. Instead, both are equally essential to and
inseparable in marriage. Since the nascent Church’s struggle with Gnosticism, it has taught
that the procreation and education of offspring is an essential end of marriage. While
primary emphasis has traditionally been given to the procreation of offspring, their nature
and education are equally important. Parents have both the obligation and the right to see to
“the physical, social, cultural, moral, and religious education of their offspring”. This
education is to take place in “a family atmosphere so animated with love and reverence for
God and others that a well-rounded personal and social development will be fostered among
the children. For this reason, Christian parents’ efforts to provide for the formation of their
children are “truly a ‘ministry’ of the church at the service of building up her members.
The 1917 code did not speak of the good of the spouses as an end of marriage. It spoke
rather of “mutual assistance and the remedy of concupiscence” as the secondary end of
marriage. The Second Vatican Council employed the phrase “the good do the spouses”, but
it used the phrase to explain why the bond od marriage “does not depend on human
decision” but is, of its nature, perpetual. In speaking of conjugal love, however, Gaudium et
spes taught:

38
Cf. FC 18-21
Fully human as it is, in being willed by one person for another, such love embraces the good
of the entire person [totius personae bonum] and is therefore capable of endowing human
expressions with a particular dignity and of ennobling them as special features and
manifestations of married friendship.39

This love embracing the good of the whole person of the spouse prompts their “preserving
endeavor to bring each other to the state of perfection40
While canonist agrees that the good of the spouses is an end of marriage, the relative
novelty of the phrase has led them to disagree about how this good fits into the systematic
structure of marriage. Some note that, while the Augustinian “goods” identify inherent
properties of marriage that make it good, the good of the spouse is an end of marriage or an
orientation towards the personal good od the spouses themselves. For them the good of the
spouses includes, but is richer than, the mutual assistance and remedy of concupiscence
mentioned in the 1917 code. It “consists in the growth and maturing of the spouses as
persons, through the aids, comforts and consolations, but also the demands and hardship, of
conjugal life, when lived according to God’s plan. As such, the good of the spouses gives
rise to a right that marriage be lived out in accord with the three traditional bona, but not to
the good that accrues to the parties when the goods of children, fidelity and sacrament are
lived out faithfully in good times and in bad.

Other canonists have objected that such reductionism is contrary to the intent of the code
commission and the mainstream of Rotal jurisprudence before and since the promulgation
of the revised code. They propose instead that the good of the spouses is a fourth bonum
distinct from but complementary of the tree traditional “goods” of marriages first articulated
by Augustine. For them the good of the spouse consist in conjugal love and gives rise to the
right to a loving relationship.

Those who would reduce the content of the good of the spouses to the commitment to the
three traditional “goods” object that conjugal love “cannot be the bonum coniugum, because
love is not an end of marriage but an ingredient necessary for marriage to succeed, and a
successful marriage is a sign of the achievement of the “good of the spouses.” It is certainly
true that a successful marriage is hardly imaginable without the presence of genuine love.

39
GS, 49
40
PIUS XI encl. Casti connubii, December 30, 1930, AAS 22 (1930) p. 548
Nevertheless, the fact that conjugal love is an essential ingredient of a successful marriage
does not imply that it cannot also be the end of marriage, something to which marriage is
ordered by its very nature.

3.5 The Essential Properties of Marriage

The §3 of c.776 of CCEO reiterate what § 2 of c. 2 of CA, spoke of the essential properties
of marriage. It is a continuation of the radically sacramental point of view with which the
legislator has sought to begin the general treatment of marriage. In fact, both these
paragraphs in c. 776§ 1 and CCEO and c. 1 CA, establishes the identity between marriage
and the sacramental reality. In §3 of c.776 of CCEO and § 2 of c. 2 of CA we fins the
application, by way of affirmation, of what the elevation of marriage to the status of a
sacrament entails. The exposition is clear and linear: in the first clauses, it is established in a
direct and categorical way, that “the essential properties of marriage are unity and
indissolubility.” This affirmation implies the following presuppositions:
a) The canon is referring to matrimonium in facto esse, given that these properties cannot
be predicated of marriage in matrimonium in fieri, at least not without importance
specifications and nuances which refer to its realization in marriage in facto41;
b) The marriage which is being treated is natural marriage, every marriage, independently
of its elevation to the order of grace. This is demonstrated by the specific content of the
subordinate relative clause which follows and closes the text of the §3 of c.776 of CCEO
and § 2 of c. 2 of CA.
c) The essence pf marriage has properties;
d) These properties consist of the unique and indissoluble character of the bond, since the
bond constitutes the formal principal of the essence;
e) Only these noted can be considered as essential properties; and

41
From a juridical point of view, bonum fidei was initially seen as an obligation of the
married state (matrimonium in facto esse) , but gradually it came to denote the obligations
arising from the right to fidelity exchanged in marital consent (matrimonium in fieri). In this
way, the perpetual and exclusive right/ obligation to those acts proper to conjugal life
became designated as the only essential juridical content of bonum fidei, whereas the
exclusion of other elements covered by the term did not affect the validity of matrimonial
consent.
f) It does not preclude that marriage can have other properties, not is the importance that
these possible properties could have from an objective or subjective point of view treated,
but it is establishes, by exclusion, that they cannot be considered essential properties. 42

3.5.1 Unity
Let’s analyzing the property of unity in marriage
a) Unity and marriage “in fieri”
In the dynamic perspective of marriage in fieri, it can be said that the will of establishing a
partnership is concretized in the act of “wanting to be a spouse,” that is, of wanting to give
oneself and to be received as there wife or husband, such a will is not capable of being
multiplied. The reason for this is that someone who wants to give himself in a dimension,
such as the sexual, which totally embraces his person, and who desire to receive the other as
a gift equal to himself, cannot, at the same time, want to do this in respect to the third party.
On one hand, this dimension, as the object of the act of the will, cannot be either divided or
shared precisely because it is personal. On the other hand, the dignity of the subject does not
permit a split between his sexual dimension and his personal being, in such a way that the
same person gives himself simultaneously the various persons. Thus, just as the sexual
dimension, being man and woman is realized in the person and “is exhausted” in him,
likewise the condition of being a spouse “is exhausted” in the person.

b) Unity and marriage “in facto esse”

In the typical perspective on marriage in facto esse, the question of unity as a property
should be seen in relation to the essence, properties and ends. Regarding the essence, found
in the relationship of the bond which is established between the spouses in constituting
themselves as spouses, it can be said that the bond cannot be multiplied because there
cannot exist two title of justice in respect to the same object which are at the same time full
titles. If these bonds are distinct, at least one of them will not be a conjugal bond. If one
claims that they are equal they cannot coexist because it is not possible to live as spouse in a
duplicate way, or to have such a spouse, the condition of totality proper to the subject and to
the object of the pact would be lacking. In every case, moreover, the multiplication of bonds
would produce problems of justices that are impossible to rectify

42
 c) Unity and conjugal fidelity
In the Magisterium and in canonical doctrine and jurisprudence, fidelity had benn
considered as a characteristic included in unity, or at least, as comparable to it. In this
regard, it is fitting to point out some precisions
a) The specific intention against unity consist in wanting to have various conjugal bonds at
the same time; on the other hand, the intention against fidelity can be understood in two
ways; as a fault against the commitment established in the conjugal pact, or as the will of
the contracting party to continue freely making use of his sexual condition in order to share
it with persons other than his spouse;
b) The first of the intentions against fidelity contemplate, without anything further, adultery
as a fact, refers to marriage in facto esse, and does not break the bond although it can be the
cause for a separation between the spouses; the second case refers to marriage in fieri,
affects the very act of the will constitutive of the pact, and produces its nullity; c)
c) When comparing the cases of an intention against unity and an intention against fidelity,
we are always referring, as is obvious, to the marital will of marriage in fieri;
d) The reason for the usual identification, or at least, and more precisely, comparison, of the
usual identification against unity and against fidelity are rooted in the fact that both unity
and fidelity have for their object the direct protection of the same good: the exclusivity of
conjugal life; and
e) The different lies in that in the case of an intention against unity the contracting party
claims a faculty of establishing ulterior bonds, while in the case of an intention against
fidelity he does not claim this; the similarity lies in that, also in this second case, the
contracting party deliberately wants to continue making use of his personal dimension,
which he is now constituting someone else as co-possessor of. In short, in both cases the
contracting party is not giving himself fully as his spouse. Contrariwise he seeks to keep the
fulfillment or the non-fulfillment of what he has theoretically promised in the sphere of the
free disposition of his will, as a true right.

3.5.2 Indissolubility

a) Indissolubility and marriage "in fieri"

With respect to indissolubility, if we examine the perspective of marriage in fieri, we can
consider that act of marital will which leaves open one's self-donation in the dimension of
time cannot be complete; it cannot exhaust the sphere of conjugality; it cannot be fully
anchored in one's personal character. The richness of the person is such, and the ontic
structure that makes marriage possible is rooted in it, that it is not possible to give oneself
while reserving the duration of the bond, that what gives rise to the conjugal pact is
precisely a relationship, like filiation, or motherhood and fatherhood, sustained in this
structure which exists in the order being, The marital will does no consist in wanting to
"play the role of a spouse," but rather in wanting to be a spouse," and relationships
established in the order of being are fixed in the person and perdure in him).
To want dissolubility is to seek to remain as master of the donation which has been effected,
which, consequently, is not a full donation. It is at root, wanting to have the very existence
of the bond, regarding its ends, depend upon one’s own exclusive will, and as if it were a
subjective right.

b) Indissolubility and marriage “in facto esse”

In the perspective of marriage in facto esse, the motive that corresponds to the essence and
the ends can also be commented. The bond, in fact. although originated exclusively by the
will of the parties, once established cannot not be broken by the will of the spouses
themselves or by others. The reason for this is that the object of the pact does not consist, of
an arbitrary choice determined by the contracting parties or by positive law, but rather is
established upon the very structure of the person, and it is established through putting into
action a potency of nature. Certainly one is completely free to effect or not the actualization
of this "union of natures," but once it has come into being, the bond is constituted with the
force and necessity of nature itself.43
From the point of view of the good of the spouses, it must be noted, in the first place, that
the process of collaboration in the perfecting of the other, and of one's own perfection in
carrying out this task, cannot exist with the alleged dissolution of the bond and the cessation
of the condition of being spouses.44 For this reason this end of marriage, in as much as it is
an ordination of the essence, requires indissolubility. When there is, however, a collapse of
conjugal life together, neither the essence of the relationship established between the
spouses nor its ordinations or ends is modified.45 The maintenance of the bond, in spite of
everything, constitutes a greater good, given that even the situation of collapse in mutual

43
cf. CIC cc. 1134, 1141.
44

45
cf. CIC cc. 1151—1155.
marital life does not suppose an absolute failure of the person as such, rather, it can be lived
according to the dignity of the personal subject. The breaking of the bond, does not respect
this dignity.
In regard to the good of offspring as an end of marriage, it is fitting, in certain measure, to
refer back to what we have pointed out concerning unity. To this must be added the effect
which can be had in the children upon seeing multiplied not only the conjugal bonds of their
parents, even though this be in a "successive" way, but also the specious relationship of
fatherhood or motherhood in their regard, and the alleged multiplication of relatives,
(especially of likewise specious brothers and sisters).

Conclusion

In line with the personalistic vision of the Second Vatican Council, CCEO calls marriage a
"covenant". From the analysis, this seems a better team than "contract" to describe marriage
as found in the c. 1 of CA. Perhaps in this area the Latin Church could have learned from
the East, and have dropped "contract" completely. Unlike CA, the "defining" canons of
CCEO characterise marriage as a consortium totius vitae; a "communion of life" is an
essential component of this perpetual and exclusive partnership. By simply adopting the
conciliar expression sese mutuo tradunt et accipiunt, the CCEO do not spell out any further
the rights and obligations exchanged in marriage consent; in other words, the formal object
of consent is not delineated beyond the statement that it is the consortium totius vitae.
Nevertheless, from the canons we have been able to identify the bonum prolis and the
bonum comiugum as essential elements of the formal object, while the essential properties
of marriage are indissolubility and unity (in the broad sense of exclusivity).

For Christian marriage, sacramentality is considered akin to an essential element or

property. What has not been settled in jurisprudence is the meaning of the educario prolis
within the bonum prolis, and the essence of the bonum coniugum. Likewise, outside of the
perpetual and exclusive right to conjugal acts performed in a natural human manner, the
extent of the essential bonum fidei has not yet been agreed upon. Moreover, the precise role
of love in marriage remains an area of debate in canonical doctrine.

The Eastern Code’s more theological approach is shown in the way canon 776 clearly
distinguishes natural marriage from sacramental marriage, and then in its description of the
symbolism of the Christian couple’s union. The CCEO employ the notion of "consecration",
in its "constitutional" canons. The CCEO has a "three-fold" view of marriage’s nature: the
divine role is clearly enunciated, whereas CA outlook is more clearly legal and focusses on
the couple's consent. Even the inseparability principle is more theologically nuanced and
expressed in terms which don’t convey quite the same rigid automatism apparent in CA.

However, the Eastern Code has no mention of the Holy Spirit in its canons on marriage’s
nature. Furthermore, while the Oriental canon 776 is certainly expressive of the role of the
Creator, it is not completely faithful to Gaudium et spes 48 in several ways, thus losing
some of its richness, especially the idea —- communicated so clearly in the conciliar text —
that the laws which govern marriage emanate from and are part of its divinely-given
essential structure and nature (a concept also found throughout the post-conciliar
magisterium). In addition, the Eastern Code fails to be true to Oriental tradition by not
including the notion of the Church’s blessing in the "defining" canons. A point which needs
to be developed in doctrine is how the axiom matrimonium facit consensus partium, of
Western canonical origin but also taught by Popes, fits (or indeed doesn’t fit) into the
Eastern doctrine concerning marriage’s formation.