MARRIAGE PREPARATION COURSE

Lesson Nine

 

Civil Law Concerning Marriage

 

 

    Marriage is essentially a contract by which a man and a woman dedicate themselves to each other for life for the purpose of founding a home. This contract is made and becomes legal at the moment of marriage, when the bridal couple exchange the "I will" whereby they pledge themselves to each other.

 

    Our Lord Jesus Christ raised this very contract of marriage, made between two baptized people, to the dignity of a Sacrament (Canon 1012, 1). Every marriage of two baptized, people is therefore a Sacrament; that is, no contract of marriage between two baptized persons can possibly exist without being a Sacrament (Canon 1012, 2).

 

    As is the case with all the Sacraments, Our Lord has entrusted this Sacrament-contract to the care and administration of His Church. Thus, since the marriage of two baptized people is always a Sacrament, it belongs to God, and not to the civil authorities or governments which, therefore, have no right to make laws concerning the Sacrament contract of marriage. The civil authorities have no more jurisdiction over the Sacrament of marriage than they have the right to decide how and when we must be baptized or confirmed or go to Confession. It is a matter entirely outside of their jurisdiction.

 

    And yet although the Sacrament of marriage is a supernatural institution, it nevertheless does have a direct bearing on the things of this world. The economic aspect, for example, holds an important and basic role in family life (lesson 6); the legal aspect, that is the civil laws which clearly establish the economic and social bases of the family, merits similar and equivalent recognition. Public authorities have, therefore, the right and the duty to make laws which regulate the temporal rights and liabilities arising out of marriage. For this reason, the authorities have enacted many statutes concerning the proprietary rights of husband and wife. In formulating laws concerning marriage, the chief concern of the civil authorities should be the social well-being and civic welfare of the new family unit that has been formed.

 

    However a complicated problem arises in respect to this division of authority. The first is that, in many countries, the civil power has regulated not only the temporal effects of marriage but has also passed laws affecting the very nature of marriage itself. Some of these laws (for example, those respecting divorce, etc.) are entirely contrary to natural laws; some others are not so strongly opposed to the laws of the Church; still others coincide with those of the Church.

 

    In order to regulate the celebrations of marriage between non-baptized persons, civil laws can and must be enacted. In the case of baptized persons, however, a conflict may follow: on the one hand, their marriage, being a Sacrament, has to be regulated by the laws of the Catholic Church; on the other hand, these persons find themselves. under an obligation to submit also to civil laws which are not always in agreement with the laws of their Church. For instance, even though some states refuse to do so, the Catholic Church will nevertheless always recognize as valid a marriage between a white and a colored person both of whom are baptized; She will also recognize as valid a proper marriage between Catholics who have attained the canonical age for marriage (girl 14, boy 16) even if the law of a state or province requires different minimum ages (for example: 16 and 18). Again the Catholic Church will never recognize as valid the so-called "re-marriage" of a divorced person (whose first marriage was really valid) with any other person. It follows therefore that in certain cases a marriage will be considered as valid by the Catholic Church and invalid by the State, or invalid by the Catholic Church and valid by the State.

 

    What, then, should be the attitude of Catholics entering into marriage in these countries where, not only the temporal results of marriage but, in addition, the very celebration of marriage itself, are all determined by civil law? As a general principle, members of the Catholic Church should abide by the laws of their state or province or country as long as these laws are not opposed to the teachings of their faith. (For example: although marriage between a Catholic boy of 16 and a Catholic girl of 14 would be regarded as valid by the Church, some states nevertheless would consider such a marriage as invalid. In such a case, it is of the utmost importance that Catholic people should comply with the law of their state or province in order to avoid the complications that would result from infringing upon civil laws that forbid them to marry.)

 

    Difficulties arise also from the fact that in certain countries, the laws of various provinces or states are at variance with one another. Because of this situation, it is impossible for us to give here, even in an abridged form, all the various laws governing the celebration of marriage in these countries. Moreover, for the majority of those contemplating marriage, a detailed knowledge of all these laws is unnecessary. However, a supplement will supply you with the pertinent laws of your own state or province.

 

    In this present lesson we shall content ourselves with a brief explanation of the general principles which Catholics should always keep in mind, not solely for the immediate purpose of their own marriage, but also as very precious information for use in every-day life. For many Catholics, the teachings of their Church and her attitude towards marriage are the subject of daily attack through the press, in the office, or in the factory. Too often it is to be deplored that, in matters concerning marriage, Catholics are not sufficiently informed and are left speechless because they themselves do not know clearly what to answer to these charges against the Church.

 

    The present lesson is divided as follows: 1) legal steps preliminary to marriage; 2) civil impediments to marriage; 3) legal status of husband and wife; 4) annulment, separation, divorce; 5) last will and testament. This last item may cause some surprise to students since it seems to be in such contrast to marriage itself which is really a new point of beginning in life. It must be kept in mind, however, that, if the bride and groom really desire a solid economic basis for the home that they are establishing and for their future married life, then the founding of that home will also bring with it consequences that after their death will be beyond their control. It is of no small importance that in the event of death each spouse should be prepared to leave to his family and to his partner not only the sweet memory of happy years spent together, but also, as a token of foresight and love, an estate, unhampered by legal complications, and sufficient to meet the needs of those who survive him. For this purpose and for this reason, each partner should draw up a last will and testament.

 

 

I. LEGAL STEPS PRELIMINARY TO MARRIAGE

 

    The various requirements of the civil law (whether state, provincial, or federal) prior to the celebration of marriage may be classified under the following headings 1) Declaration of intention to marry; 2) Marriage license; 3) Approval of the parents (or guardians, etc.) as regards the marriage of a minor; 4) Investigations to be made before a marriage license is granted; 5) Capacity to marry. We shall deal with these successively.

 

1) DECLARATION OF INTENTION TO MARRY

    Ecclesiastical law already has a law of this sort (see Lesson 8), obliging these parties to have their promise of marriage publicized in their own Church at least. This publication is called the proclamation or calling of the banns.

 

    Many countries and states have a law of their own somewhat similar to this law of the Church. Some states simply require that the publishing of the banns be made in a church a certain number of times. These laws also determine the number of days that must elapse between the calling of the banns and the wedding itself.

 

    In place of the calling of the banns, many states and provinces require instead that the prospective parties notify the civil authorities of their intention to marry. The purpose of this law is twofold: a) to prevent the celebration of unprepared marriages; b) to allow time necessary for the civil authorities to investigate the capacity of both parties to contract a valid marriage. While Catholic parties resident in these states are not dispensed from the calling of the banns in their church, they nevertheless must comply also with the requirements of their civil laws. This notification or declaration of intention to marry, made by the parties to the civil authorities, is different from the marriage license which in some states is often called "certificate of intention" or "certificate".

 

2) THE MARRIAGE LICENSE

    Besides the public proclamation of marriage or its declaration to civil authorities, all the states of the United States and most of the provinces of Canada require that a license be issued to the contracting parties before their marriage may be performed. This marriage license or certificate may be defined as a document issued to the parties by the civil authorities and establishing 1) that these same authorities have been notified of the intention of such parties to contract marriage; 2) that, as far as civil law is concerned, no obstacle to such marriage exists; 3) consequently, that the marriage may be performed by an authorized minister. This license must be obtained by both parties or by one only, depending upon the laws of that particular state or province. It must be handed to the priest (or minister, or civil officer) before he may perform the marriage ceremony. There are a few exceptions to this law but they need not be mentioned here. Furthermore, there is no uniformity in the laws regarding the validity of a marriage performed without a license. Some states positively declare it invalid; others have a dubious law regarding this point; others consider these marriages as valid but illicit.

    Generally speaking, the application for a license is made in writing, and the party (or parties) must answer certain questions, e.g. age; domicile, parents, racial origin. In many cases, there are questions concerning the health of the parties, especially as regards venereal and tubercular afflictions. Enquiry is also made as to the existence of (civil) impediments or conditions that would make the marriage invalid or illicit.

 

    The marriage license is issued by the official specially designated by law for that purpose. He may be the town, city, or county clerk, or judge of such and such a court. In most places, whenever a license is issued, it remains valid forever. Some states, however, restrict its validity to 30, 60, or 90 days, or a year, after which time another license must be obtained if the marriage has not yet been celebrated.

    A license is issued for the performance of a marriage within the territorial limits only of the state granting the license. There may be even further restrictions as to the place where or as to the person in whose presence it may be performed.

 

3) APPROVAL OF PARENTS OR GUARDIANS

    According to the laws of the Church, a pastor, when requested to marry a couple one (or both) of whom has not yet reached the age of maturity (21 years according to ecclesiastical law), should first exhort them not to marry without the knowledge or against the reasonable opposition of their parents (Canon 1034). The pastor is then the judge as to whether this opposition of the parents is reasonable or not.

 

    In most states of the United States and provinces of Canada, those persons who have not yet reached the age of 21 for men, and 18 for women, require the consent of their parents. A few states vary in the matter of the age, more often for women than for men. Many states require the consent of both father and mother but, usually, the fatherís consent prevails. Again, in many states the guardianís consent has to be obtained if the father or mother is (mentally) deficient. In certain circumstances determined b! law, the approval of another person, e.g. a judge, is required when, for example, the parents who live outside the state are not citizens of the country. Lastly, there are certain cases in which such approval is not required: the second marriage of a widow or widower (who is under the legal age limit); when the woman legitimately lives outside her parentsí home.

 

4) INVESTIGATION TO BE MADE

    In both canonical and civil law, investigations have to be made before a marriage may be performed. For this investigation the obligation rests first upon the pastor for the canonical investigation, and for the civil investigation upon the public official who issues the license. (An outline of this canonical investigation [prenuptial enquiry] has already been given in Lesson 8.) It is also the duty of the pastor to find out if the requirements of the civil law have been duly fulfilled. The main reason for this is to avert from himself and from the engaged couple the very severe penalties incurred by those who act contrary to the civil law. At the same time, it is the Churchís desire that civil laws be observed, provided that they are honest in themselves, e.g. laws establishing a higher age than that required by the Church for its members.

 

    Not only is the pastor under an obligation of charity towards himself and towards the couple to make such investigations concerning the requirements of civil law, but in some states this obligation is imposed by the civil law itself, sometimes under very heavy penalty. In other states, it suffices for him to be shown the marriage license issued to the couple coming to be married. As these investigations (Canonical and civil) concern the pastor even more than the couple themselves, no further explanation seems necessary here.

 

5) CAPACITY TO MARRY

    Canon Law (1018) requires that, before a marriage may be performed, evidence must be established that nothing is opposed to its valid or licit celebration. Thus there is the obligation for the pastor to have the certitude that neither party is already bound by a former marriage. Hence the previously mentioned enquiry demanded by the Church.

 

    The civil laws of different states or provinces ar-3 at great variance as to the methods by which the knowledge of this freedom to contract marriage is to be obtained. Ordinarily, a solemn declaration by the man and woman is considered sufficient. Some states require the testimony of other persons. Some states also a require a bond, that is, a certain sum of money to be deposited as proof of the capacity of the parties to contract marriage. (It is very strange, however, that in most states of the United States a divorced person is not obliged to show a special attestation of the preceding divorce.) Finally, in the case of re-marriage by a person whose husband or wife is deceased, most states are satisfied with a solemn declaration of liberty.

 

 

II. CIVIL IMPEDIMENTS

 

1) GENERAL IDEA

    Most marriage impediments as determined by civil law closely resemble those established by the laws of the Catholic Church. The main difference between them, however, lies in the fact that civil impediments, as a general rule, do not always have the same clear-cut effects as have the canonical impediments. Whereas canonical impediments render a marriage either invalid or illicit, certain civil laws on the other hand are not so definite when, for instance, they state that such or such marriages are "forbidden". Thus, a marriage may be forbidden and invalid, or forbidden and valid though illicit.

 

    Sometimes, marriages are contracted despite specific impediments; in certain states, the law declares such marriages to be void or voidable. The word void leaves no doubt whatsoever as to its meaning which corresponds to the word invalid as used by the Church. The word voidable has various meanings: In civil law, it may mean an invalid marriage the invalidity of which, for various reasons, has to be declared by the courts. It may also mean a valid marriage that can be annulled by civil authority. Evidently, and please note, this last idea (that a valid marriage can be annulled by civil authorities) cannot be accepted by the Church. Divorce is an example of a valid marriage annulled by civil authorities. (It still remains a valid marriage "until death do us part" despite seeming annulment by the civil authority.)

 

    As has already been noted in this lesson, the Catholic Church recognizes the power of any state to enact laws affecting the marriage of non-baptized persons among themselves, provided that these laws be not opposed to the laws of God. But, as these laws are enacted by the state with the intention of binding all citizens, it is the will of the Church that Catholics should obey these laws as long as they are not opposed to the teachings of the Church. This point must be kept in mind while reading the following paragraphs. For more specific data, we refer our students to the laws of their own particular state or province.

 

2) IMPEDIMENTS COMMON TO BOTH CHURCH AND STATE

1) Age: There is no uniformity in the laws of the provinces or states regarding the impediment of age (or, "non-age" as it is often called) or regarding its effects on the marriages performed despite this impediment. Some laws regard such a marriage as absolutely void; others, as simply voidable (rescindable). Some states have no impediment of age and regard the "non-age" not as an impediment but as grounds for divorce.

 

2) Impotence: Impotence, as an impediment to marriage, has already been defined in Lesson 8. Usually, there is no great difference between impotence as defined by the Church and impotence as defined by the civil laws of the various provinces or states. Most of these civil laws, in fact, distinguish between impotence (inability to have sexual relations) and sterility (incapability of becoming parents) and regard only impotence but not sterility as an impediment to a valid marriage or as grounds for divorce. Some civil laws use the word "impotence"; others have the term "physical incapacity" which may mean the same thing but which may also (and dangerously) be extended to such other defects as might fall within the scope of that term, e.g. diseases, etc., which might thereby come to be regarded as impediments to marriage.

 

    One matter worthy of note must be mentioned here: Vasectomy is a surgical operation by which the internal seminal canal in the male is cut, thus preventing the passage of the seed but at the same time leaving the man with the possibility of having sexual (though barren) intercourse. Vasectomy is one form of sterilization. If performed before marriage and if the condition cannot be remedied, this operation is regarded by the Church as a case of impotence (and therefore, a diriment impediment). Civil law, on the other hand, considers it as a mere case of barrenness, and therefore no impediment to marriage.

 

3) Bond: By this impediment, a person who is already married cannot validly marry any other party. (See lesson 8). Such is the law of the Church, as it is also the law of practically all modem countries. Bigamy or polygamy is therefore a forbidden practice. So far, there is full agreement in Church and State laws concerning this point. The difference arises, however, when it comes to a matter of interpreting the law: Since the impediment of bond is based on the existence of a previous and still existing valid marriage, discrepancies in the interpretation of the law will arise when the State, by granting a "divorce", assumes a power that it does not possess, and "legally" dissolves a bond which the Church regards as still existing. As a result, there are cases in which a person contracting a second marriage is regarded by the Church as bigamous, although not so regarded by the State. The contrary may also happen if, for example, a second marriage is contracted by a person whose first marriage, while regarded as valid by the State, is regarded by the Church as invalid on account of some ecclesiastical diriment impediment.

 

    Other cases also occur in which some states regard as valid the second marriage of a person whose first marriage still exists but who has been abandoned by his or her partner for a certain determined number of years. This amounts to an implicit divorce, and is not in accordance with the laws of the Church. Each particular case, therefore, must be studied in the light of both Church and State legislation if embarrassing conflicts are to be avoided.

 

4) Consanguinity and Affinity: In 1534, England, under Henry VIII, broke its ties with Rome. Immediately after the separation, the British Parliament undertook the modification of the then existing ecclesiastical laws concerning consanguinity and affinity. Shortly afterwards, the Anglican Archbishop, Parker, compiled a table known as "Archbishop Parkerís Table of Degrees of Consanguinity and Affinity" which has been a standard since the time of its adoption, in 1563, as a law of the Church of England.

 

    In all English-speaking countries today, this table, despite various modifications, is still considered a standard for lawmakers, especially in matters having to do with consanguinity; as for affinity, many countries and states have either modified its provisions or suppressed them entirely.

 

    It is a point worth noting that, contrary to canon law which "counts the degrees" (See Lesson 8), civil laws are satisfied most of the time with the mere enumeration of those persons between whom a marriage cannot be contracted on account of consanguinity or affinity. Thus, civil law will state: "A man may not marry his sister, his fatherís sister, etc."

5) Crime: The impediment of crime (already mentioned under ecclesiastical impediments, Lesson 8) exists also in civil law. Here, however, it has a broader scope: It may be understood either as an impediment between two accomplices in adultery, or as an impediment between two accomplices in conjugicide (bringing about the death of oneís spouse), or as an impediment between two persons one of whom has been granted a divorce on grounds of adultery or on any other grounds. The laws of each country, state, or province, have to be taken into account before it can be determined whether this impediment renders a marriage a) void, or b) simply forbidden, or c) whether it is solely grounds for divorce since many laws recognize some major crimes as a basis for a petition for divorce.

 

6) Legal adoption: According to ecclesiastical law, (lesson 8) wherever legal adoption constitutes a civil impediment to marriage, it constitutes also an ecclesiastical impediment and to the same extent. That is, if legal adoption makes a marriage legally invalid, it renders it invalid in the eyes of the Church also. If the state regards this marriage as valid though illicit, the Church also regards it as valid though illicit. If legal adoption is not considered as an impediment by the state, neither does the Church consider it as such in those countries (See Lesson 8).

 

3) PURELY CIVIL IMPEDIMENTS

    Besides these impediments recognized by both Church and State (though often with different meanings), there are a few other impediments determined exclusively by civil laws. Among these are: a) disparity of blood; b) disease; c) drunkenness.

 

a) Disparity of Blood: This impediment forbids, usually under heavy penalty, the marriage of a "white" to a "colored" person (ex: African, Asiatic, or Indian descent). All theologians agree, (and it is the unvarying doctrine of the Church) that such an impediment has no binding power whatsoever in the case of a baptized person. However, "where such inter-marriages are prohibited by law, as they are in several states of the U.S.A., the Church bids her ministers to respect the law and to do all that is in their power to dissuade persons from entering into such unions." LaFarge, S.J.: "Inter-racial Justice", pp. 145-146.

 

b) Disease: Christian love for oneís neighbor should deter any person who is afflicted with a contagious disease, from contracting marriage. This is especially true when the disease is of a hereditary nature; in such a case, it may even amount to a grievous obligation to forego marriage. Nevertheless, the Church, respectful of the dignity and liberty of man, has never made this obligation a formal impediment. Even civil legislation had never done so until, within recent years, under the pressure of the self-styled and so-called eugenic movement, some countries enacted various laws to prevent such marriages or to render them fruitless through sterilization. The Catholic Church, be it noted, strongly endorses any measures that further the safeguarding of health, but She does insist that these measures be measures that respect manís inalienable dignity and liberty. Thus, the Catholic Church will look with favor upon the idea of a pre-marital medical examination BUT She will oppose this idea if the results of this examination are to be later used as grounds for rendering the marriage "legally" invalid or void.

    Among the diseases that have been finding their way into the laws of the State, the .post frequently noted are epilepsy, tuberculosis, and venereal diseases. (The question of venereal diseases will be dealt with in Lesson 13.)

 

c) Drunkenness: It is generally admitted in both ecclesiastical and civil law that a marriage contracted while in a drunken condition is valid or invalid depending upon whether the contracting party is actually mentally capable or incapable of contracting marriage. According to ecclesiastical law, the whole question is one of full knowledge of oneís actions. Some civil laws go so far as to indirectly forbid the marriage of habitual drunkards (even if actually sober) by forbidding officials to grant them a marriage license. Furthermore, in most cases, a minister is forbidden under heavy penalty to perform the marriage of a person actually under the influence of alcohol (or narcotics). A few states extend this provision even to the case of habitual drunkards.

 

 

III. LEGAL STATUS OF HUSBAND AND WIFE

 

    Since, as we have already explained, the economic aspect of family life has such a basic importance for the stability and welfare of the family, the legal element that determines and governs it is of no less importance. It is not surprising therefore that law-makers have given this problem so much attention since the beginning of human society. Experience and thought have forced them to elaborate various systems of laws that tend to give to the family a definite and stable constitution, and that also determine the power and responsibility of both husband and wife in economic and related matters.

 

    A nationís general attitude towards the family is perhaps most clearly reflected in the legal status it accords to the husband and wife, and more specifically in its recognition of the dignity and rights of woman.

 

    Broadly speaking, the various legal systems now in force throughout Western civilization may be traced back to the two great systems of laws which form the backbone of western culture: the Roman Law; and Common Law. Of these, the former has extended its influence throughout most of Continental Europe (especially the Latin countries) and, through emigration, to certain parts of North, Central, and South America. The Common Law, supplemented by statutory laws, still fundamentally prevails in all English speaking countries. Nevertheless, these two great legal systems have not been without influence, one upon the other, with the result that certain Common Law characteristics have found their way into the laws of countries whose legal system is based on the Roman Law. Moreover, the Common Law of England (and other Common Law jurisdictions) relating to marriage has its origin in the Canon Law or Church Law.

 

    In dealing with the legal status of husband and wife, both systems of law stress the following points: 1) personal rights; 2) property rights; 3) rights respecting children. However, since this present lesson has been compiled primarily for the benefit of American and English-speaking Canadian students, the following paragraphs will be directed towards an explanation of the legal status of the husband and wife in these countries.

 

1) BASIC COMMON LAW PRINCIPLE

    Originally, under Common Law, the husband and wife were considered as but one person, legally speaking, .... and that one person was the husband. As a result, the womanís property became the husbandís property, and she could make no contracts. On the other hand, the husband could make no gifts nor grants to his wife because, after all, she was himself (they being considered as one person). This status of woman was gradually modified during the course of the centuries until today her legal status has changed to a point where in many places she is regarded as almost the equal of man in the matter of civil rights.

 

2) MAIN APPLICATIONS

1) Personal rights: a) Upon marrying, the woman assumes her husbandís name, although generally speaking, without obligation to do so. b) The husband is regarded as the head of the household, and may determine the place of residence of the family. c) Contrary to the old law, a wife is answerable for her crimes and torts (civil wrongs) unless committed in the presence or at the order of her husband. d) In most jurisdictions, the wife can sue personally for injuries which may have been caused by a third person. Her husband also can sue personally in her stead for injuries done to his wife by a third person. e) In most jurisdictions, a woman cannot sue her husband for damages from beating, although she can institute criminal proceedings against him. Ordinarily, a wife cannot sue her husband for slander, libel, negligence, or assault. f) The wife has the right to financial support by her husband in proportion to his income. An exception is sometimes made if the wife by her misconduct forfeits her right to this support. g) As to naturalization: In the United States: The foreign wife of an American citizen retains her former nationality; she must be naturalized if she wishes to become an American citizen. One year of residence is required before such naturalization may be obtained. In Canada: A Canadian woman has the right to retain her Canadian nationality even though she may marry a man of another nationality. A foreign woman who marries a Canadian qualifies for Canadian citizenship after one year of residence in Canada.

 

2) Property rights: Generally speaking, the method of regulating the ownership and administration of property after marriage is determined by two major legal systems: the Community Property (or joint ownership) System, and the Personal Property (or personal ownership) System. These two basic systems can be traced back to the Roman Law and the Common Law, but they have been modified to such an extent that, at present, no two countries, states or provinces have identical legislation in this matter. In fact, in some states, provinces, or countries, both systems co-exist, and their terms are modifiable by special prenuptial or nuptial agreements . We must, as a consequence, be satisfied here with a general explanation of these two basic systems.

 

a) Community Property System: Under this system, the couple each with the other jointly owns and shares all belongings. Thus, each partner gives all he (she) possesses and all he (she) may yet acquire in order to increase the total wealth for their common benefit. In case of dissolution of their "partnership," the total wealth is usually divided equally. All things considered, the Community Property System is the simplest, the most reasonable, and the most just: It is the simplest since the two partners give, each to the other, all they own without any reservations. It is the most reasonable since, the two having decided to become partners for life in both body and soul, such a system acts as a formal statement of their mutual trust and good will, and completes their partnership by including their material goods as well. Finally, it is the most just system since each partner derives equal benefit from the arrangement. In this way, their union will be perfected, not only by the spirit of their hearts, but also by their joint pursuit of material prosperity. Worldly interests, then, instead of dividing them (as is sometimes sadly the case), can help to bind them together in closer harmony. This system is derived from the Civil or Roman Law, and obtains in Continental Europe, in a few of the states of the United States, and in one Canadian province (Quebec).

 

    The Community Property System has certain disadvantages, however: Should the husband go bankrupt or make a bad business deal, all his wifeís possessions as well as his own are in danger of being lost, thus depriving her of the portion to which she had a legitimate right. In addition, the laws of succession concerning commonly owned goods are more complicated and costly.

 

b) Personal Property System: In this system, the married couple form an association, a partnership, but they make an exception for their material belongings: Each keeps his or her own property; the other has no rights over it. In this way, each partner is independent of the other from the point of view of material goods. What each earns, each keeps.

 

    The most striking disadvantage of this system is that the husband has what he earns while the wife, since she does not bring wealth from outside the home, is at a decided disadvantage. Let us take as an example the case of a young middle-class couple who are just embarking on their matrimonial life: Since they are just starting out, they have but few belongings, and sometimes the wife has none at all. The wife, by marrying, loses all capacity of earning a living since her proper role consists in taking care of the home. With separate ownership of goods, she would then remain penniless for her entire future life. She would draw not one penny from this matrimonial partnership in which she has nevertheless invested all her physical, intellectual, and moral energies. Legal means had to be devised, therefore, to rectify to some extent this evident lack of balance. These means consist of, 1st: the wifeís right to be supported by her husband; 2nd: other means which various jurisdictions may allow, such as bequests of insurance policies, sums of money, household goods, etc. The husbandís will, carefully and wisely made, constitutes another proof of his devotion by making adequate provision for his wifeís security in the event that he predeceases her.

 

    On the other hand, the Personal Property System possesses great advantages and, as a result, most states and countries have adopted it. Personal property, or separation of goods, favors the business man, protecting him from the risk of complete disaster for his family. He risks only what belongs to him so that, in case anything happens that his goods become liable to seizure, his wife nevertheless is able to retain what is her own share (any goods she holds in her own name) since their belongings are divided and separately owned. This is an important point in favor of the Personal Property System; it is deserving of serious consideration. At the same time, the man engaged in business and commerce needs all his credit. This he will secure more readily if the tradesmen who cidvance money to him know that in the event of his death they will not have to seek payment through a long-drawn. out succession of proceedings involving minors and children. They are much more willing to negotiate loans with him on the guarantee of his own personal unattached wealth.

 

    As stated above, most states and provinces have adopted the Personal Property System (or separation of goods) as their one standard system. In some jurisdictions where the Community Property (or joint ownership) System exists, this last system is not necessarily imposed upon the partners, but leaves them free either 1) to take this Community Property System, purely and simply as described in the respective laws of these jurisdictions; or 2) to choose the Personal Property System; or 3) to make special prenuptial agreements that in reality create some sort of "made to order" system, provided that its provisions do not run contrary to law.

 

    As a general rule, however, in those places where the Community Property System does not exist, the law also permits special nuptial agreements that may somewhat modify the Personal Property System. In any event, the important point to be emphasized here is that, before making the final decision, a lawyer should be consulted. With his experience and thorough knowledge of law, he can be of great help to you in making your final choice. To be stressed also is that all your decisions and all your arrangements should be made before marriage because as a general rule 1) these cannot be changed after your marriage, and 2) if you do not make any special arrangement beforehand concerning your ownership of goods, one matrimonial system will automatically become yours for life; this will be the Community Property System or the Personal Property System ... whichever is enforced by the laws of your particular state or province.

 

 

IV DECLARATION OF NULLITY, SEPARATION, DIVORCE

 

1) GENERAL PRINCIPLES

    The Catholic Churchís inflexible and never-changing attitude towards divorce and problems related to it is common knowledge to all. At the same time, this attitude is widely misunderstood and as widely misinterpreted.

 

    Fundamental explanations of this attitude on the part of the Catholic Church have already been given in Lesson 8. At this point, we are offering further information, not so much for the personal use or benefit of our students, but rather so that they may be better able to explain and, if necessary, defend the Churchís attitude on that turbulent question. It is important, therefore, that from the outset all should be agreed on the meaning of certain basic words (declaration of nullity, separation, divorce) that are at the very root of all discussions.

1) Declaration of nullity: By this is meant here an act of the legal authority by which a so-called "marriage" is declared officially never to have existed even from its supposed beginning. By this declaration of nullity, the judge (whether ecclesiastical or civil) declares that such a marriage, despite the appearances of a real and valid marriage, and sometimes even despite the good faith of both parties, has nevertheless never been valid on account of some impediment to its validity or lack of consent, etc.

 

2) Separation: Though the word "separation" may have different meanings, we shall use it here as meaning an act by which two persons validly married remain in the bonds of their union but are, however, released from certain obligations regularly attached to the bond of marriage. These obligations are a) the obligation of community of life; b) the obligation regarding marital relations. The separation may be a) perpetual or temporary; b) regarding only marital relations ("separation of bed") or regarding the whole community of life (separation of bed and board); c) private (voluntary) or decreed by public authority.

 

3) Divorce: By this word "divorce" is meant here an act of the legal authority by which a valid marriage is actually dissolved. (We know, of course, that it is not dissolved in the sight of God despite the pronouncement by a judge of the civil jurisdiction.) A divorce is, therefore, entirely different from a declaration of nullity because a declaration of nullity simply declares the marriage never to have existed; divorce is also different from a separation as explained above because such a separation still recognizes the permanent existence of the marriage-bond and pronounces only on the consequences; divorce, on the other hand, claims to destroy that very bond.

 

2) LAWS OF THE CHURCH

    The Catholic Church teaches the following concerning:

1) Declaration of Nullity: a) The right to make a declaration of nullity of a marriage between baptized persons (even if only one of the persons is baptized) belongs exclusively to the ecclesiastical tribunal. b) In order to prevent conflicts between civil and ecclesiastical authorities, it is of the utmost importance that, before a declaration of nullity is issued by the ecclesiastical judge, a similar declaration of nullity or a divorce (civil divorce) be obtained from civil authorities. Such a civil declaration of nullity, or a divorce, must not be sought from civil authorities without the permission of the ecclesiastical tribunal. (See Lesson 8, page 186.)

 

2) Separation: The Catholic Church recognizes that a separation (as explained above) may be justified and legitimate in the following circumstances a) adultery committed by one party gives to the other, the innocent party, the right to a separation from bed and board. The conditions are:

i) that this adultery is certain

ii) that it is formal (i.e. the one who is committing adultery must know that he is committing adultery), culpable, freely committed

iii) that it has not been forgiven explicitly or tacitly by the innocent party. Adultery committed under these conditions gives the right to a separation. If, however, both the partners in the marriage are guilty of adultery, both forfeit any right to a separation. This right does not create an obligation to separate. On the contrary, Christian love should rather incline the innocent party to forgive and strive to bring about the reform of the guilty party.

 

b) Heresy or apostasy of one party, when such heresy or apostasy comes after marriage, is a sufficient cause for separation. c) A serious danger to the soul or body is also a sufficient cause for separation. An example of a serious danger to the soul: if one party constantly solicits the other party to commit mortal sins: birth prevention, prostitution, stealing, etc. It is, however, rarely expedient to procure a separation in such cases as there are other ways of offsetting such solicitation. Examples of a serious danger to the body: constant fights at home due to the character of the other party, his (her) sinful negligence of family duties, etc., a dangerous contagious disease which one party has contracted through his (her) own sinful fault.

 

3) Divorce: In order to clearly understand the position of the Catholic Church regarding divorce, we must first distinguish between a consummated marriage and a non-consummated marriage. A consummated marriage is a valid marriage that has been followed by sexual intercourse. A non-consummated marriage is a valid marriage that has not been followed by sexual intercourse. With this distinction as our starting point, we may condense the Churchís teachings as follows

1st )No civil authority whatsoever has the power to dissolve or break the bonds of a valid marriage, either consummated or non-consummated.

2nd )No human authority, either ecclesiastical or civil, has the power to dissolve or break the bonds of a valid and consummated marriage.

3rd ) The Catholic Church, on account of the divine powers that She has received from God, has the instrumental power to dissolve the bonds of a valid marriage but only in the following cases:

 

a) In the case of the Pauline Privilege: This privilege, under the authority directly conceded to the Church by God, permits the dissolution of the bonds of a marriage between a baptized and a non-baptized person (even if this marriage has been consummated) under certain conditions

i) when the non-baptized person refuses to dwell peacefully with the baptized person, or ii) when the non-baptized person abandons his (her) partner. N.B. The case of the Pauline Privilege does not apply if the marriage between the baptized and the non-baptized person has taken place with the Churchís dispensation from the impediment of disparity of cult;

 

b) In the case of a special dispensation from the Pope: Such a dispensation of the Sovereign Pontiff can dissolve the valid but not-consummated marriage of baptized persons.

 

c) In the case of a solemn Religious Profession: It is a dogma of the Catholic Faith that a valid but non-consummated marriage is completely dissolved by the solemn religious profession of one of the two partners.

 

4th.) The Catholic Church does not recognize as valid the marriage of a Catholic party with a Catholic or a non-Catholic party if this "marriage" is performed outside the Catholic Church, i.e. when it is performed by a Protestant minister, by a Justice of the Peace, etc. Such a marriage has the following effects:

  1. It is regarded by the Church as public concubinage.
  2. The children born of this union are illegitimate.
  3. The "married" couple are to be regarded as public sinners and cannot be admitted to the Sacraments nor can they be given a Catholic burial service (See Lesson 8, page 181).

 

5th ) The Catholic Church regards the civil law permitting divorce as a law against the law of God which stands for the indissolubility of marriage.

 

6th ) A Catholic party would be entitled to avail himself (herself) of this law of divorce in one case only: if the Catholic Church has already recognized his (her) marriage as invalid.

 

3) STATE LAWS CONCERNING NULLITY, SEPARATION AND DIVORCE

1) Nullity: The right to obtain a declaration of nullity by the civil court depends upon the special laws of the state or province. In some instances, this right to seek a declaration of nullity is granted only to both partners. Some other civil laws grant this right only to an innocent party; in some other cases the guardian or the parents of a minor are granted the right to attack this marriage in the civil courts.

 

2) Separation: The civil laws of various provinces and states do not interpret the word "separation" as we have defined it above. Some of these civil laws ignore or even forbid such a separation and, in its stead, offer divorce as the only solution. Some other civil laws grant only to the wife the right to seek a legal separation; still other civil laws grant this same right to seek a separation under conditions very similar to those required by the Church in such petitions (See Page 213).

 

3) Divorce: a) The laws of most states of the United States and of most of the provinces of Canada are at variance with the teachings of the Catholic Church on the matter of divorce. b) All states of the United States except South Carolina have laws and courts for the granting of divorce. Even the State of New York, which is said to grant divorce only on the grounds of adultery, has other legal machinery that allows the annulment or dissolution of the marriage bond for other reasons. The words are different but the effect is the same. c) In Canada, all the Provinces except Quebec, have laws and courts for the granting of divorces. In Prince Edward Island, although a statute (still in force) set up a provincial court for divorce, that court has refused to exercise jurisdiction for many years. People of Quebec and Prince Edward Island may however be divorced but only by a special act of the Parliament of Canada.

 

 

V. LAST WILL AND TESTAMENT

 

    More than most contracts of civil law, which are temporary and short-lived acts, the last will and testament merit serious study since they are a final act, the last important act of a manís life as regards his material possessions. In this section we shall deal with 1) the nature and characteristics of the will; 2) its importance; 3) the various kinds of wills; 4) practical cases.

 

1) NATURE AND CHARACTERISTICS

a) Nature: Technically, the last will and the testament are two different things. However, in everyday language the distinction is seldom observed and, throughout this present lesson, the word will is being used as having the general meaning of a legal documentary instrument by which a person regulates the rights of others over his or her property after death.

 

    The will is not to be regarded as an evil omen, nor as a sad and woeful thing. It is a simple act of foresight and love. You love your wife, your husband, your children, your beneficiaries, whoever they may be, and you desire that after your death they may derive every benefit possible from the possessions which you may leave behind. You then face the situation squarely, and distribute your possessions in such a way that all may receive what may be of greatest service to them. This is what the will is.

 

b) Characteristics:

1) Deed of gift: By the will you divest yourself of all your property, to be effective at your death. Until that moment you continue to enjoy your property and to dispose of it as you please. Your beneficiaries receive only what you leave.

 

2) Deed is unilateral (one-sided) and revocable: The will is not an agreement between two people; it is the statement of the will of one person only, and is effective only upon the death of that person. The person making the will is not bound by his will: He can revoke it at any time up to the last moment of his life. Only the last will is valid.

 

3) Unlimited liberty of the testator: In most countries, the law allows the testator unlimited freedom in making out his will. Thus, he is free to dispose of his property to whomsoever he wishes, and in the proportion that he wishes within certain limits set by law and insofar as such disposition is not contrary to public order or to good morals. For example, the legislative authorities of some places have enacted that, where a testator fails to make adequate provision in his will for dependants, payment of certain allowances may be ordered by a court of competent jurisdiction.

 

2) IMPORTANCE OF THE WILL

a) Importance for the testator: Every intelligent man wants his property to be well disposed of after his death, and to prevent it from falling into undeserving or careless, indifferent hands. Usually, too, he is the one who best knows the needs of those around him, the weakness of one, the experience and sagacity of the other, the greater or less ability of each to earn a living. For this reason, he owes it to himself to employ the surest means at his disposal to protect his loved ones, thus living on in his role as father of the family, as devoted parent and provider. A well considered will, soundly constructed, is a monument erected by the testator to his own intelligence and to the goodness of his heart. It can give security to the entire family. By contrast, however, a badly thought out or informal will, or the complete absence of any will whatsoever, is frequently disastrous for some of his intended beneficiaries. Where an individual fails to make a will and dies intestate, it is left to legislative authorities to say how his property will be distributed upon his or her death. A word of caution: "home-made" wills can be dangerous instruments, providing the subject-matter for a lawsuit. The legal costs that follow may result in the diminution or total absorption of the estate. All this can be avoided if the testator seeks competent legal advice when making his or her will.

 

b) Importance for the legatees: That man is rare indeed who has no occasion for some particular concern towards some special one among his family or his friends. Perhaps the object of this special solicitude may be an infirm or sick child; it may be one whom nature has not so lavishly endowed as others; it might be an incorrigible spendthrift, or some rash person who makes costly blunders or business deals that would swallow up more than the amount of his inheritance. It could be a wife who is absolutely incapable of managing business matters. Many other such cases could be noted but, in brief, it is evident that in these cases justice does not call for the usual equal division of property. In fact, unusual precautions must often be taken to prevent the dissipation of the property through ignorance, wastefulness, etc. The importance of the well made will is reflected in the happy or unhappy condition of many a legatee. Frequently, a blow that might have been disastrous to an entire family has been averted by the foresight and wisdom of the testator, characteristics that now live after him in the happiness of those for whom he had made wise and prudent provision.

 

3) VARIOUS KINDS OF WILLS

    Although there are various forms of wills, nevertheless not all of these forms are considered as acceptable by the different states, provinces, or countries. There are 1) the nuncupative will: This is an oral statement by the testator to two or more witnesses who, within a reasonable time thereafter, reduce the statement to writing, and sign as witnesses. Nuncupative wills are permitted by law only in the case of soldiers and sailors, on actual service. In the case of civilians, some states permit them but with very considerable restrictions. 2) the holograph will: This is a will which has been all written by the testator in his own hand, and dated and signed by him. The holograph will is permitted in the Province of Quebec and in about one-third of the states of the United States. 3) the Common Law will: This is a document signed by the testator in the presence of two witnesses (Many states require the presence of three witnesses.) who must also sign in the presence of the testator and of each other. 4) the will "made as a public document": In this will, the wording is made by a notary and read by him to the testator in the presence of another notary or before two witnesses, and is signed by all of these in the presence of all. There are possible variations to this arrangement; however, this kind of will being peculiar solely to one Canadian province (Quebec), no further development is necessary here. 5) the "mystic" will: This is a will signed by the testator then enclosed in a sealed envelope and presented to and subscribed by a notary together with three witnesses. The "mystic" will is permitted in Louisiana only.

 

4) PRACTICAL CASES

a) In most jurisdictions, gifts made in a will to a beneficiary who also signs as a witness are void. Care must be taken, therefore, not to solicit the services as a witness of anyone upon whom a benefit is conferred in your will.

 

b) Emergency cases: It does happen that in an emergency you might be compelled to make out your own will, either alone (holograph will) where the law permits it, or according to the Common Law form (Common Law Will). In such circumstances, there are several precautions which must be observed:

 

1) Express yourself simply: Your last wishes will be clearer and easier to execute.

 

2) Do not use words when you do not know their exact meaning: e.g. untransferable, unseizable, usufruct, fiduciary, etc. Otherwise, you risk creating inextricable situations.

 

3) After making the particular bequests which distribute stated objects, always make a residuary clause which disposes of all that is left over (residue) of your property: "The rest, residue and remainder of my estate I leave unto..."

 

4) Never make two wills within one document. For example, never make your will within the same document that contains your wifeís will.

5) Use blank paper. Difficulties may arise from the use of letterheads or papers containing other marks.

 

6) Make sure to sign your name and have the witnesses sign at the very end of the will and add nothing below your signature.