Understanding Marriage: A Legal and Historical Perspective
ITEM 4: Marriage in General
1. Matrimony and Right
No legal institution produces as many legal effects as marriage. At the beginning of the study of marriage, we must address two erroneous views:
a) Panajurídica:
The belief that marriage is only a legal link, sustained by feelings. It was said that marriage is an island that the sea of law should cherish but not absorb.
b) Panasociológica:
The belief that marriage is only sociological, meaning that marriage is not what the law says but what spouses want it to be.
Western marriage signifies a legal relationship that meets certain standards. In the third century, the jurist Modestinus stated that marriage is between a man and a woman, is forever, and is regulated by a series of laws. The characteristics of this marriage are:
- Monogamy: Between two people of different sexes, although tetragamy was allowed in the East. This type of marriage is in decline due to pressure from the West.
- Heterosexuality: This is creating a problem due to pressure from homosexual groups.
- Stable: One can never marry for a term or terms. Once a marriage is celebrated, it becomes a legal link and inseparable in the Catholic Church, with small exceptions like annulment.
- Consensual: No one can be forced to marry against their will. Marriage depends on the free choice of spouses and must be formalized by a priest.
- Purpose: The purpose is procreation under a formalized family link.
2. The Constituents of Western Marriage
They are basically two:
* 1. Christian Conception
Canon law, when it took shape, adjusted Roman law, including in matrimonial matters. In the 3rd and 4th centuries, canon law succeeded in changing the initial Roman conception of marriage. For the Romans, marriage was a situation of fact supported by affectio maritalis. When love disappeared, the marriage was over. For canon law, marriage is an indestructible legal bond, independent of the will of the parties. In canon law, there is freedom to contract; in Roman law, there is freedom to contract and to undo.
Jesus said that man would join with a woman and they would become one flesh.
The Christian element has three sources:
- The Patristic: Laid the moral foundations.
- The Scholastic: Laid the theological foundations.
- The Decrees or Decretals: Laid the legal foundations.
* 2. Secularization of Marriage
This period can be easily divided into three historical stages:
- Protestant Reformation: Luther left marriage in the hands of the state, considering it a civil matter. At first, there were laws on civil marriage, such as the Law of 1581 in the Netherlands and the law in England in 1653 by Cromwell.
- The Enlightenment and the French Revolution: Fleeing from the sacred. For the French constitution, marriage was a civil contract. The marriage was the same but the Church was replaced by the Court, the priest by the judge, and the Bible by the Civil Code. Divorce was allowed.
- Realism: A current introduced in Catholic countries. It recognized that marriage is a natural contract and a sacrament that could be regulated by the state. This was the case in Spain.
3. The Legal Definition of Marriage
When marriage was formed, lawyers were asked about its legal nature. They found three sources: lex, contractus, and delictus. They ended up rejecting lex because there was no general law, and they also thought that marriage was not a crime. They came to understand marriage as a contract. The contract began to be patrimonialized, serving more for property obligations than personal ones. The contract, in turn, enhanced its inextricable facet. Thus, the idea began to develop that marriage was not a contract but an institution. Therefore, the first conclusion we draw is that marriage is an institution or a specific contract of family law.
There are legal business contracts and real consensus contracts. The latter require the delivery of something. Great jurists have different opinions about whether marriage belonged to one type of contract or the other. Pope Alexander III, disagreeing with his teacher, said that marriage was a consensual contract, but added that if the marriage was not consummated, it could be dissolved by the Pope.
So, it is a legal business, but its consummation adds a consensual element. In addition, there are formal and informal legal businesses. For a long time, until 1563, marriage could be informal. In 1563, it was established that marriage had to be performed before a priest and two witnesses, thus formalizing marriage. Marriage is a consensual, formal legal business.
4. Marriage Systems
: The approach followed by each State to the diversity of marriage. According to the aspects of marriage, the marriage can be: * A) According to the constitutive aspect can be .- Monists: they can be of two types: if a marriage celebrated before a civil religion, there is a penalty . The marriage does not have the status of marriage. In France and Belgium there are criminal penalties. In other countries it is not given much importance to religious marriage before or after the civil, although the state does not recognize religious marriage. This is the case in many South American countries like Chile, Peru … it happens in Israel or the Vatican. In these places there is no civil marriage.
– Dualists: systems where there are two marriages, civil and religious. Only worth a kind of religious ceremony. Examples Portugal and Costa Rica found that only recognize the canon. – Pluralistic: in these systems, in principle, the marriage can be either civil or religious. There are more religious freedom and we must distinguish three types1. The Anglo-Saxons as Australia, USA and England to allow the marriage method is chosen, but it governs the state fund. Therefore, there is a free choice of shape. Is a state regulated age, invalidity … 2. The rate, which usually belong to Arab countries. In this way it regulates and the background of different faiths, according to which it belongs marriage. Every marriage is governed by a religious state. 3. The joint, typical of Spain and Italy. Here canonical marriages since 1992 are worth it too as Jewish, Muslim and Protestant. The previous record that follows so that the person can marry, what makes the Church a religious marriage, in other faiths does the State. In the background, the canon is effective.