Marriage: History, Requirements, and Legal Aspects

Posted on Jan 5, 2025 in Geology

Marriage

Marriage is the primary social institution established to create a family. It is recognized and legitimized by society. The primary relationship is governed by interpersonal relations, whether between people of the same or different sexes, and can be religious, civil, or both. It involves a sexual relationship protected and supported by the legal system.

Throughout history, marriage has shown variability, including plural or monogamous forms, and relationships between people of the same or different sexes, with varying degrees of formality. It involves acts that are and are not of effect. Acts that are of effect include previous acts (betrothal), simultaneous events (kiss, veil), and subsequent acts (banquet).

The act of marriage is formalized through rites and legal formalities. In ancient Roman marriage, the focus was on procreation (matrimonium, from mater-mother). Roman acts included offerings to guarantee Jupiter, the presence of grooms, witnesses, and/or a priest. It was also a purchase of sorts from the family patriarch, who had the power of the husband.

In canon law (and generally in all religions), marriage is a sacrament, permanent and indissoluble.

In Spain, marriage can currently be contracted civilly or religiously, although this has not always been the case. In 1870, only civil marriage was valid. With the arrival of the Bourbon Restoration in 1875, traditional pressure led to the validation of religious marriage again. During the Second Republic, civil marriage was invalidated, and again after the Civil War (and the rise of General Franco’s power), religious marriage was validated during the dictatorship.

Requirements

Consent.

Consent has not always been a requirement throughout history. It could be given by third parties (the feudal lord, his servants, his direct vassals, etc.). Lack of consent could invalidate the marriage and lead to serious consequences (servitude, loss of titles, etc.).

In Rome, the family patriarch gave consent for those under his power (agnatic or cognate). In primitive and Muslim societies, in the absence of the father, other family members could give consent (if necessary), such as the mother, older brothers, or uncles.

Judicial or administrative authorities could also grant permission, especially if one of the parties was in America or another Spanish territory.

Today, consent is an indispensable requirement in our legislation, and its absence can lead to the annulment of the marriage.

In canon law, consent is also important, as it represents the act of the parties giving themselves to each other. Canon 1905 states that the following are incapable of giving consent:

Those who lack sufficient use of reason, have a severe disability, are sleepwalkers, or are exposed to hypnosis.
Those who have a serious defect in judgment, lacking the distinction between the rights and duties of marriage.
Those who are against homosexual marriage.
Those who give consent due to physical or psychological violence or reverential fear (e.g., pregnancy).

Impediments

Impediments are requirements that invalidate or make a marriage illegal. These include:

Impotence (impotentia coeundi and generandi, physical impotence and sterility, respectively).
Age (in Rome, 14 years for males and 12 for females; in canonical law of 1917, 14 for females and 16 for males). Currently, it is 18 years, although the authority can grant a dispensation from 14 years.
Prior marriage.
Those who belong to sacred orders.
Abduction (in Visigothic times, it was not zero, and the family could even kill the abductor). In canonical law, if abduction existed, the abducted person had to be free and give consent.
Those who have taken a vow of chastity.
Crime (if a spouse killed the other person).
Consanguinity (lineal and collateral). In the second degree, it is generally prohibited, but in the second degree of collateral, cousins are allowed.
Affinity, currently only in the lineal degree.

Betrothal

Betrothal is a reciprocal promise of future marriage. It was not very important in Rome, where forced marriage was common. During the Roman Empire, if the promise was broken, the person had to return what they had received from the spouse. If the spouse was over 10 years old, the return had to be multiplied by four.

In Visigothic law, betrothal enjoyed great protection, even if it was not formalized by permission. Witnesses were sufficient. In medieval canon law, if the betrothal was breached, it was punished with excommunication. Betrothal was so assimilated to marriage that the terms were often confused. To avoid confusion, a distinction was made between betrothal of the future (a mere promise) and betrothal of the present (immediate celebration). After the Council of Trent (16th century), the mere promise became the first step, and our current legal system still allows for compensation for damages caused by breaking the promise.

Separation, Annulment, and Dissolution

Dissolution involves the extinction of a valid marriage and can occur due to:

Death of one of the spouses.
Marriage at term (the term has ended).
Pantanaco (a native Peruvian custom, completed in 1574 by Viceroy Francisco de Toledo).
Repudiation (a unilateral decision by the husband to reject the wife).
Divorce (a bilateral and legal decision through the legal system). This last point is only in the most modern systems. In the first conception, marriage was a contract and could have important legal consequences. It already existed in classical Mesopotamia and Greece. In Rome, it was frequent (without formalities, which appeared later, such as witnesses, ceremonies, etc.). With Justinian, it began to be punished patrimonially if there was no justified cause.

The Church, considering it a sacrament, is against dissolution (especially since the Council of Trent). However, it allowed it in exceptional cases, such as the case of a wife with leprosy.

Protestant churches allow it, as they do not consider marriage a sacrament.

In France, divorce was valid during the French Revolution and under Napoleon’s Civil Code, although it was difficult to obtain. After the Bourbon Restoration (1816), it was invalidated. However, due to pressure, it was validated again in the late 19th century and further in 1975.

In England, the Protestant Reformation validated divorce, but it was believed that a valid marriage was indissoluble. Pressure from Parliament validated it again. In 1857, it was extended to cases of adultery, sodomy, and bestiality. In 1925, it was extended to cases of adultery, sodomy, and bestiality.

In Joshua, it came into force in 1900 for bigamy, adultery, malicious abandonment, mental illness, etc. In 1907, it was extended to concubinage by the husband, insults, insanity, alcoholism, and syphilis. In 1938, it was extended to Nazi causes, but after the war, all these causes were eliminated.

In Switzerland, it was introduced in 1874.

In Spain, with the advent of the Second Republic in 1931, it was included in the Constitution. It was recently published in the Official State Gazette (although it was never implemented). After the Civil War, it was abolished by the Nationalist government in 1938, where only separation was admissible. It was reintroduced in the 1978 Constitution in Article 32, giving rise to Law 30/81 (Ordonez), which was modified by the Aznar government and then by the Zapatero government (which introduced quick divorce). The Church still does not recognize divorce.

Separation does not imply the dissolution of the marriage, although it does not imply the obligation of cohabitation. Nullity means that there was no marriage. The Church only recognizes nullity in the following cases:

Death of one of the spouses.
Non-consummation of the marriage.
Pauline Privilege (dissolution of the natural bond of marriage between two unbaptized people. If one of the parties is baptized while the other is not willing to accept the situation peacefully, the baptized person can enter into a new marriage, dissolving the former marriage).
Petrine Privilege (not in canon law, but an expansion of papal power over marriage).

Cohabitation

Cohabitation refers to permanent relationships with certain marital effects that are not legal. Some sectors allow it as an alternative to marriage. It is a permanent sexual relationship not legitimized or recognized by society. In the legal world, it may or may not be recognized, but it is different from marriage.

In Rome, there were illicit cohabitations that, although they had some coverage, were not legal. Concubines began to have some rights. Marriage was only granted to citizens, so these relationships were considered a form of cohabitation. There was also contubernium, the relationship between slaves.

In Germanic law, it was called”free marriage”

Concubinage was a typical Spanish institution, a relationship between a single man (secular or not) and a woman in conditions of fidelity and permanence. It was considered an inferior state to marriage. The Church began to punish it with excommunication, infamy, deprivation of Christian burial, and inability to hold certain positions. In modern times, it is inadmissible. Certain requirements had to be met:

Only one concubine could be had.
There was an impediment up to the fourth degree of consanguinity.
If the person was of high dignity, the concubine could not be a tavern keeper, a vile person, or the daughter of a slave.
In Castilian courts, concubines were forced to wear saffron, and in the Soria courts, clerics’ concubines had to wear a cloth of a certain color.

Today, the legal system tries to equate cohabitation with marriage.

Property Regimes

A marriage needs economic stability to survive. Initially, the husband bought the wife. After this initial stage, depending on history, the husband offered economic security to the wife (the dowry or arras). The wife could dispose of the dowry if she had children. Later, the dowry became the wife’s property, intended to help with the burdens of marriage. If the marriage was dissolved, the dowry had to be returned to the wife. The wife also had paraphernal property, which she owned and administered, although she could cede it to the husband.

Matrimonial donations were of two types:

General matrimonial donations, which came from the parents of the couple.
Betrothal donations, between the spouses (if the marriage was not celebrated, they were returned).

Once the economic situation was established, the legal regime was a matter of regulation. The following stand out:

Union of property: Common in Rome and some Germanic peoples. All property of both parties was merged, and the husband administered it.
Separation of property: Each party retains ownership and management of their own property.
Community of property: All or part of the property is common to both parties. Its origin dates back to the Visigoths and can be of two types: universal (all property) and limited (part of the property). The most frequent in society is the community of gains, where each spouse retains what they had before the marriage and what they acquired during the marriage for lucrative purposes.
Separation: An intermediate regime between separation and community. During the marriage, it functions as separation of property, and upon dissolution, it functions as a community.