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            "A matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact". So runs canon 1055, § 2 of the 1983 Code reproducing literally canon 1012, § 2 of the pio-benedictine Code. This word-for-word reproduction is all the more striking in view of the many suggestions and efforts made over the twenty years of drafting of the new Code, to have this paragraph of the old canon 1012 changed. If the suggestions were not accepted in the end, this would seem to be because, while the pastoral concerns behind them were understandable enough, they were not held to correspond to sound theological (and therefore to sound juridic) thinking.

            The firmly established doctrinal principle that "omne inter Christianos iustum coniugium in se et per se esse sacramentum" (cf. Leo XIII, Encyc. Arcanum: Denz. 1854.) has been reflected in traditional rotal jurisprudence holding that if christian spouses exchange true marital consent, then their marriage is sacramental, independently of their faith or of their intention regarding sacramentality (cf. E. Bouchet: "Foi et Sacrements dans la Jurisprudence rotale" Année Canonique 24 (1980), p. 112). As we read in a Sentence coram Stankiewicz of Apr. 29, 1982: "It is undeniable that rotal jurisprudence has often stated that for a valid marriage, faith is not necessary, but consent alone" (RRD, vol. 74, p. 247).

            Passages such as the following are typical: "As long as the consent is given in the prescribed form, by that very fact (the other requirements being met), the sacrament is effected among baptized persons; because when they marry the cause of the sacrament between them depends not on their will but on the will of Christ" (c. Staffa, Aug. 5, 1949: vol. 41, pp. 468-469). "For the sacrament to be effected, nothing else and nothing more needs to be put by the followers of Christ that those elements proper to the essence of the natural contract. Nor, as regards validity, is it pertinent whether the person marrying... has faith in the sacrament of matrimony, or in the existence of God, or in the divine institution of the sacraments; provided he or she does not exclude the contract as it exists in its natural reality, or does not repudiate anything that affects the essence of this contract" (c. Doheny, Feb. 18, 1959: vol. 51, p. 60). "There can be no matrimonial contract between baptized persons which is not a sacrament, and this independently of whatever the contracting parties feel or hold or believe; for the sacrament is brought about by the will of Christ, not by that of the parties, nor by their wishes or opinion or faith. Therefore any Christian, even if lacking in proper faith, even if scorning the sacrament, contracts validly and receives the true sacrament along with the contract, as often as he wishes what pertains to the essence of the contract, or does not positively exclude it" (c. Doheny, Apr. 17, 1961: vol. 53, p. 185). "In order to contract matrimony validly, faith is not needed, but consent alone. Therefore, whenever baptized persons get married, as long as they legitimately fulfil all the elements required by natural law, an indissoluble bond and the sacrament are produced. Because this depends not on the faith of the contracting parties nor on their will, but on the will of Christ. The fact is that there can be no contract between Christians without the sacrament being thereby confected" (c. Pompedda, May 9, 1970: vol. 62, p. 476). "If someone does not want the sacrament, but wants a true conjugal contract in the sight of the Church, he or she really - de facto - does not exclude the sacrament" (c. Fiore, July 17, 1973: vol. 65, p. 593).

            Certain difficulties have been raised in recent times about this traditional position. It has been suggested in some pastoral writing that the freedom of the parties requires the Church to refrain from "forcing" the sacrament on those who do not want it - who should still be recognized the right to a valid marriage, even if it is not sacramental. In the canonical field, attention has been particularly directed to the possible invalidity - by reason of the exclusion of sacramentality - of the marriage between persons who are baptized but who are practical "unbelievers". Since such "unbelievers" lack the intention of "doing what the Church does", it would seem that they cannot receive the sacrament validly. What is being debated here is clearly of no little importance.

            It ought not to be forgotten that the parameters in this question are marked out by theology not by canonical science [1]. Canon law is particularly interested in the elements required for the valid celebration of matrimony. Some of those elements (capacity, freedom...) are of natural or divine law, while others are purely disciplinary, and of merely ecclesiastical law. Among the latter is the need for canonical form; and confusion is bound to arise if it is forgotten how this form is a simple positive law requirement which has no theological significance in itself and is extraneous to the question of sacramentality [2].

The canonical or the liturgical form are not the sacramental form

            By positive law the Church requires, under pain of invalidity, a juridic or canonical form involving the presence of a bishop, priest or deacon (c. 1108, § 1), or even a lay person (c. 1112), who asks and receives the expression of consent in the name of the Church (c. 1108, § 2). According to constant catholic teaching, the person so present - referred to as a "qualified witness"- is in no way a minister of the sacrament. There is also provision for an "extraordinary" canonical form (c. 1116) where, in particular circumstances, marriage can be validly celebrated without the presence of any such "qualified witness" (in all cases two "simple" witnesses should be present).

            The canonical form is not to be confused with the usual liturgical form or rite (whose omission does not invalidate). Neither canonical nor liturgical form is the actual sacramental form, which consists in the manifestation of consent by the parties. According to the habitual teaching of the latin Church (cf. Catechism of the Catholic Church, n. 1623.), the ministers of the sacrament of matrimony are the parties themselves (cf. Council of Florence: Decree for the Armenians, Denz. 702; cf. Denz. 2225). Given the current emphasis on the dignity of the laity, this traditional teaching would seem to merit renewed attention. The peculiar dignity of the spouses is in fact specially shown in their being ministers, and in the non-necessity per se of any intervention of the Church or of any religious rite, in order that matrimony validly celebrated between Christians be a sacrament. Contrary suggestions tend to make christian marriage seem a "gift" of the Church, or something granted through the ministry of the Church (A deeper theological appreciation might say that the spouses "are Church" in the moment of consent: cf. Burke, op. cit. pp. 51ss).

            It is incorrect to suggest that the "extraordinary" form of celebration (c. 1116) is less sacramental than the "ordinary". It is "extraordinary" from the canonical point of view; but there is nothing extraordinary (i.e. nothing abnormal or defective) in its sacramental aspect. It is not even accurate to suggest that it is less of an "ecclesial" or "community" event; that implies an inadequate theological understanding of the ecclesial-community dimension of sacramentality.

            Canon law therefore can only attain an adequate understanding of the sacramentality of marriage if it lets itself be guided by principles drawn from theology. The starting point must be the ontological fact that, by Baptism, a person becomes a "new creature" (2 Cor 5, 17) in Christ [3]. If Christians marry sacramentally, this is by reason of their being "in Christ" through Baptism. "By means of baptism, man and woman are definitively placed within the new and eternal covenant, in the spousal covenant of Christ with the Church. And it is because of this indestructible insertion that the intimate community of conjugal life and love, founded by the Creator, is elevated and assumed into the spousal charity of Christ, sustained and enriched by his redeeming power" (John Paul II: Ap. Exhort. Familiaris Consortio, no. 13).

            It is not simply the expression of marital consent (which in no way differs from the consent given to natural marriage), but the fact that the consent is expressed by baptized persons, which brings about the sacrament (cf. U. Navarrete: "Matrimonio, contratto e sacramento", Monitor Ecclesiasticus 117 (1993), pp. 106-107). We are moving here on the level not of juridical effects, but of ontological realities.

            Canonists seem to find more difficulty than theologians over this matter. This could be due to a failure to bear in mind that the human will is bound by reality. It is indeed inviolable, but is not omnipotent. In other words one must recognize the proper importance of the will; but not any absolute sovereignty on its part. One does not take from the rightful dignity of the will in saying that its effectiveness is limited by its necessary reference to the real order of things. With this in mind it is easier to resolve the "anomaly" which some see in the fact that 'even those who ignore a law are bound by it'. But this is not a question of legalistic anomaly, but of ontological fact: of the necessary human condition of having to work within reality.

            This point seems to be overlooked also by those who find difficulty in what they consider an "automatic" or "mechanical" presentation of the sacramentalization of matrimony [4]. Such objections do not resist theological analysis. Baptism implies an ontological transformation, that does not take from a person's freedom or from the natural attributes or characteristics of his acts, but raises them, endowing them with supernatural efficacy. "I want marriage, but without sacramentality": that could occur only through erasing the sacramental character of Baptism - which is simply not possible [5].

Doing what the Church does/intends

            A major point to be considered is the theological principle defined at the Council of Trent that, for the valid administration of a sacrament, the minister must have "the intention of doing what the Church does" (Session VII, can. 11: Denz. 854). A number of contemporary writers argue that, in a secularized society, such an intention can no longer be presumed among "nominal" Catholics or "baptized unbelievers", who nevertheless seek a church marriage. If they celebrate a church ceremony, but without such intention, then their marriage - it seems - would not be sacramental; must it follow that it is thereby rendered invalid?

            Since the doctrinal principle referred to is unquestioned, it is all important to our discussion to establish how it applies to the sacrament of matrimony. We are immediately faced with a striking but evident point: the requirement of "doing what the Church does" is either inapplicable to the sacrament of marriage, or else, because of the peculiar nature of this sacrament, applies to it in a totally singular way. The fact is that the Church, as such, "does" nothing in the conferral of the sacrament of matrimony (theologically speaking, if one accepts that the contracting parties "are Church", it is possible to say that the Church "is acting" through them). The dispositions of positive ecclesiastical law which affect the valid celebration of marriage, do not take from the fact that, by divine law, matrimony is the one sacrament in which the Church, as such, has nothing to do, for its confection. The Church does not really "celebrate" the sacrament of matrimony. It provides no distinctive liturgical or ecclesiastical ceremony that is, per se, theologically essential to the sacrament. In fact the Church has never made any particular religious rite a condition of validity. It simply requires (as does the civil authority) that marriage be contracted according to certain formalities designed to establish externally the fact of mutual consent; but these formalities need not necessarily include any specifically religious rite whatsoever (cf. canon 1116). It is for social or community reasons that the Church has made its action in "receiving" the consent of the spouses a requirement for validity, but the significance of this measure is purely disciplinary [6], not theological.

            We can take our analysis further. The practical application of the principle, "doing what the Church does", is that the minister must have the internal will of fulfilling the external sacramental rite prescribed by the Church. Is any external rite of matrimony, which is distinctively sacramental, prescribed by the Church? No; the rite consists simply in the valid exchange of consent between the spouses. In other words, it coincides with the "rite" that is required and sufficient for a marriage in its natural (and non-sacramental) entity.

            The religious rite that Catholics usually follow when marrying is the normal setting for the canonical form which, under present discipline, is required for validity. But it is not the sacramental rite. It must be repeated therefore that the principle of "doing what the Church does" is either inapplicable to the sacrament of matrimony, or else - due to the particular nature of this sacrament - has to be understood in a way that is different to how it applies to the other sacraments.

            A passage from Familiaris Consortio is specially noteworthy and helpful here. "When in spite of all efforts, engaged couples show that they reject explicitly and formally what the Church intends when the marriage of baptized persons is celebrated, the pastor of souls cannot admit them to the celebration of marriage" (no. 68).

            Here the Pope does not use the phrase "what the Church does" ("quod facit Ecclesia"); he speaks of what it intends ("quod Ecclesia intendit") [7]. This indeed seems the only accurate way to refer to the matter in relation to matrimony. While the Church "does" nothing in this sacrament, it (insofar as it is present or aware of a marriage taking place) no doubt intends something - that two Christians marry. It intends, in other words, a marriage between two persons who are "in Christ". The question then is: do the spouses intend what the Church intends? Do the spouses intend to marry in Christ? If they intend to marry, they do, because - in virtue of their Baptism - they are in Christ. They intend what the Church intends (just as the Church intends what they intend), and so they have a sufficient sacramental intention [8].

            If one wishes therefore to consider the matter from the viewpoint of the minimum "intentionality" required, one must conclude that the minimum distinctive intention is simply the intention to marry. The intention to receive a sacrament is not necessary. What is needed is not a conscious sacramental intention nor even a religious one, but a simple matrimonial intention. Protestants who marry do not normally have a sacramental intention; and yet theology and canon law have never questioned the validity of their marriages (cf. Reply of the Holy Office of Dec. 28, 1949: Denz. 2304).

            Therefore, in seeking to explain how "baptized unbelievers" can contract matrimony sacramentally, there is no need for an hypothesis that their intention 'can in the end be interpreted as an intention to do all that the Church wishes to be done through the rite'. It is not necessary to attribute to the spouses an interpretative intention to do what is "done" by the (religious) rite; for the rite, we repeat, does not effect the sacrament. Similar unwarranted difficulties will continue to arise unless one keeps the clear theological principle in mind: the reception of the sacrament does not depend on the sacramental intention of the spouses, but on their ontological condition of being Christians.

            A third major point is the question of faith. Is consciously held personal faith required for the valid reception of the sacrament of matrimony? Active and conscious faith is certainly a disposition to be sought in baptized persons wishing to marry in church. If it seems to be lacking, it should, if possible, be induced or encouraged by suitable catechesis. Nevertheless, the presence of such consciously held faith is not a theological condition for the sacramentality of the marriage in question ("To contract matrimony validly, faith is not needed, but consent alone. Therefore, whenever persons who are baptized marry, as long as they legitimately fulfil all that is required by natural law, an indissoluble bond and the sacrament ensue. The fact is that this depends not on the faith of the contracting parties nor on their will, but on the will of Christ." (c. Boccafola, Feb. 15, 1988: vol. 80, p. 89; cf. c. Stankiewicz, Montisvidei, Apr. 25, 1991, nos. 3-4)). Faith is called for if the conjugal union is to be truly holy; and lack of faith undoubtedly impedes the fruitful reception of the sacrament (cf. c. Stankiewicz, June 26, 1986: RRD, vol. 78, pp. 399-400). While these are questions of maximum pastoral importance, it still remains true that the fundamental canonical concern which we are debating is not the fruitful but the valid reception of the sacrament.

            The statement in the Vatican II Constitution on the Liturgy, that the sacraments "presuppose faith" (Sacrosanctum Concilium, no. 59) offers an important principle for pastoral practice, but is clearly not intended as an expression of theological truth (the Baptism of infants does not presuppose faith). Similarly, the indication in no. 7 of the Ordo celebrandi matrimonium, that "the sacrament of matrimony presupposes and requires faith", must be understood as referring to the fruitful but not the valid reception of the sacrament. The admission or otherwise to the celebration of marriage of those who are imperfectly disposed poses problems which are pastoral in nature, not theological or canonical. Familiaris Consortio (no. 68) gives clear guidelines for the solution of these problems.

Sacramentality: an essential element?

            Sacramentality is not a sort of supernatural superstructure added to the natural reality of marriage. It is a mistake to regard it as an essential "property" or a constitutive "element" of christian marriage. A property, such as indissolubility or unity, describes one aspect of the essence, whereas sacramentality transforms the whole essence of marriage [9]. Sacramentality is not a matrimonial property or element, but coincides with marriage itself: matrimonium ipsum, as it exists for those whose souls bear the character of Baptism. It is simply marriage considered from the supernatural point of view. "The sacramental dignity to which... Christ the Lord raised the matrimonial contract is not an element of the institution of marriage that can be considered alongside unity, perpetuity, etc. It is rather the supernatural consideration of matrimony, the point of view from which it is viewed on the supernatural plane" [10]. More exactly still, it is the supernatural configuration of marriage. "The sacrament of matrimony is not something added to (and therefore separable from) the institution of marriage; the sacrament is marriage itself celebrated between baptized persons: ipse contractus, ipsa institutio matrimonialis, ipsum coniugium" (J. Hervada: "La inseparabilidad entre contrato y sacramento en el matrimonio" in Vetera et Nova, Pamplona, 1991, vol. I, p. 801). It should be further noted that canon 1055, § 2 does not speak of the contract "becoming" a sacrament, or "acquiring" the property of sacramentality, but being a sacrament ("quin sit eo ipso sacramentum"). From the doctrinal point of view, therefore, it does not seem correct to treat sacramentality as an essential property of matrimony, or as an essential element, e.g. under c. 1101, § 2 [11].

            Nevertheless a certain tendency has recently appeared to equiparate sacramentality with an essential property or element of matrimony, and to speak of the exclusion of sacramentality as if it were of the same order as the exclusion of unity or indissolubility; and so it becomes a type of partial simulation. Such a thesis, apart from showing a lack of theological rigor, seems to be based on an inadequate reading of cc. 1099 and 1101, § 2.

            The fact is that a person can effectively want a "marriage" deprived of exclusivity or indissolubility. He or she simulates consent to a true marriage, but wants a "semi"-matrimony, that is, a "matrimony" bereft of one of its essential properties. It is in his power to "have" such a "marriage", i.e. one deprived of permanence, for instance, or of exclusiveness. In other words, he wants and chooses something possible (even though what he chooses is not a true marriage). Now if a Christian, in marrying another Christian, does choose a true marriage (exclusive, permanent and open-to-life) but bereft of sacramentality, no grounds of (partial) simulation are present in the consent he profers (he does consent to matrimony in its essential properties and elements). The matter has to be analyzed otherwise. The fact is that he is choosing something impossible, two things that cannot go together: a marriage between Christians that is a true marriage, but that is also a marriage bereft of sacramentality. There are two inherently irreconcilable choices here, and one has therefore to determine which is prevalent; the other necessarily remains without effect. If the implicit prevalent will or choice is to enter a true marriage, then the person's will to exclude sacramentality is ineffective (cf. M. Zalba: "Num aliqualis fides sit necessaria ad matrimonium inter baptizatos celebrandum" Periodica 80 (1991), p. 99). But if his implicit prevalent will is: "I will not have a sacramental marriage; and if entering a true marriage necessarily means receiving the sacrament, I will not enter a true marriage at all", then it is matrimony itself - and not simply one of its properties of elements - that he excludes. The effective exclusion of sacramentality therefore is inaccurately dealt with under the heading of partial simulation. A proper analysis shows that we are dealing with total simulation, by reason of the exclusion not of sacramentality but of matrimonium ipsum [12]. And this in fact is how rotal jurisprudence has habitually handled such cases (c. Pasquazi, July 26, 1960; vol. 52, p. 429; c. Fiore, July 17, 1973; vol. 65, p. 592; c. De Jorio, Apr. 23, 1975; vol. 67, p. 353; c. Stankiewicz, June 26, 1980, no. 4d; c. Serrano, Apr. 18, 1986: vol. 78, pp. 287ss; c. Giannecchini, June 14, 1988: vol. 80, p. 398, etc. cf. Z. Grocholewski: "Crisis doctrinae et iurisprudentiae rotalis circa exclusionem dignitatis sacramentalis in contractu matrimoniali", Periodica, 67 (1978), p. 285).

Faith and error

            A religious or ecclesial or sacramental intention is not required for sacramental marriage. A person's attitude or belief regarding the external religious rite is therefore marginal to the question of whether he receives the sacrament or not. The matter does not seem adequately analyzed in the following passage referring to "baptized unbelievers": "It can happen that out of profane motives they intend to do something altogether profane, despite the religious context; [then] the ecclesial act is fulfilled exteriorly in a correct fashion, but interiorly is neither believed in or wanted. In such a case there is simulation and a total lack of intention" (M. F. Pompedda: "Fede e Sacramento del Matrimonio", Quaderni Rotali II (1987), p. 64). This appears to equate simulation and lack of intention, which does not accord with the principle that simulation implies not a mere lack of intention ("non velle") but a positive contrary intention ("velle non") (cf. c. De Jorio, Oct. 27, 1971, RRD, vol. 63, p. 802; O. Giacchi, op. cit. p. 64). The distinguished author himself in fact seems not altogether happy with the hypothesis of simulation; and so he immediately adds: "at least one is faced with that 'error pervading the person' which essentially undermines the object of the will and therefore deprives it of its value" (Pompedda, op. cit. p. 64). A little later he writes: "when the lack of faith, understood as error about an essential element of consent, is such as to have permeated the person marrying, whose will intends something quite different to a natural institution raised to sacramental dignity, there is lacking that minimum intention (to do what the Church does) required for the validity of any sacrament, and therefore also of matrimony" (ibid., p. 65).

            This suggestion - that error about sacramentality can invalidate consent - demands careful consideration (cfr. G. Versaldi: "Exclusio sacramentalitatis matrimonii ex parte baptizatorum non credentium: error vel potius simulatio?" Periodica 79 (1990) 421-440). A first difficulty has already been pointed out: the inadequacy of applying to matrimony the requisite of "doing what the Church does", in the same way as it is applied to the other sacraments. The concrete argument offered here, however, goes farther, suggesting that lack of faith implies error about sacramentality, and that if the error is deep enough it must be regarded as determining the will (so as to want or accept only a marriage deprived of sacramentality). But is one justified in making lack of faith imply adhesion to erroneous doctrine (Pompedda, op. cit. p. 58)? Lack of faith, after all, can simply mean not having any doctrine or thoughts on the matter (and in this sense is closer to ignorance). The thesis proposed seems to involve not merely an automatic passage from the intellectual plane to the voluntary, but also an attributing to absence of intellectual knowledge - to ignorance - the power to produce an invalidating determination of the will.

            While "error radicatus" is at times invoked to analyze cases of alleged exclusion of indissolubility, one may wonder whether it is legitimate or convincing to apply it to the exclusion of sacramentality. Without forgetting that both the error and its depth must be proved in each case, a rooted conviction that marriage is dissoluble may certainly operate psychologically to facilitate a positive act wanting a 'marriage' deprived of a permanent bond. But in the case of a person who does not believe in the sacramentality of marriage, there would seem to be few psychological factors at work to make him or her positively want a marriage deprived of sacramentality (again we recall that simply to want a non-religious celebration is not the same thing (I think it is generally true that if a person has a deep-rooted error in the matter under discussion, it is about the value of a religious ceremony: but he or she - the person marrying - normally still believes in marriage)).

            It is not easy to determine the practical effect of the disposition of c. 1099: "error concerning the... sacramental dignity of matrimony does not vitiate matrimonial consent so along as it does not determine the will". What is the sense of the phrase, "determine the will", in relation to an error about sacramentality? More concretely, to what can the will be so determined by the error that consent is thereby rendered invalid?

            There does not seem to be any way in which the will could be determined by an error about sacramentality (such as the belief that sacramentality is a property or element of matrimony, or that it depends on the active faith of the parties, or derives from a church or religious ceremony necessarily involving the presence of a priest). A person's will, in the moment of consent, may be, "I want a (true) marriage deprived of sacramentality"; but, as we have noted, such a will is ineffective, because the choice of such a contradictory and impossible combination - a true marriage between two baptized persons which is not sacramental - does not lie within the real power of the contracting party. The will to make this choice certainly reveals an erroneous understanding of what is possible; but in what way could the error can be said to determine the will to invalid consent? Invalidity could only result, not from this erroneous appreciation, but from the subsequent choice that we have noted: "I want a (true) marriage deprived of sacramentality; and if this is not possible and I must have a sacramental marriage, then I don't want a true marriage at all". However it is evident that such a choice, far from being the consequence of an error about sacramentality, shows a definite degree of true appreciation (at least by way of hypothesis) of how marriage between christians and sacramentality relate.

            The real issue continues to be that of which will prevails: the positive will to marry or the positive will to exclude sacramentality. Both theological examination and juridical analysis confirm Gasparri's conclusion: "If the party mentally excludes only the consideration of a sacrament, saying positively in his mind: 'I want marriage, but I do not want the sacrament', the marriage is valid and is a true sacrament. The reason is that the intention of the minister [13] is necessary for placing the sacramental rite (i.e. the matrimonial contract, in our case); but once this has been done, whether this rite has the consideration of a sacrament and produces sacramental effects or not, depends not on the intention of the minister, but on its institution by Christ. However, if the party in his mind says positively (and not merely interpretatively): 'I want marriage, but I do not want the sacrament; otherwise I do not want marriage itself', the marriage would be null, for consent to matrimony itself would be lacking" (De Matrimonio, no. 921).

Sacramentality, an imposition or a gift?

            If active faith is not required for the valid reception of sacramental marriage, does this not mean unwarrantedly imposing a sacrament on those who are ignorant of what they receive, and who - if they did know - might well not want to receive it?

            To my mind, as I have suggested, the vast majority of those who are at times described as "not wanting" the sacrament, simply do not care about it. If there is something they do not want, it is probably the religious rite; but that, we repeat, does not constitute the sacrament. Is there not a certain ambiguity in speaking of the rejection or exclusion of the "istituzionalizzazione religiosa del matrimonio" (Pompedda, op. cit. p. 59)? What the ordinary person would most probably mean by the expression "religious institutionalization of marriage" (if he were ever to use it), is precisely the religious ceremony or rite, rather than the sacramental aspect; it would almost certainly not be the institution of marriage itself.

            To see an imposition in sacramentality shows a failure to appreciate its fundamental nature. Sacramentality is a gift [14]. God can confer his gifts on those who ignore them: life itself, grace, sacramentality in Protestant marriages... To do so is characteristic of his enriching mercy. Can one properly speak of imposing benefits? Regarding marriage between Christians, given the identity of marriage and sacrament, what God does not impose against a person's will is matrimony. But if the person does want a true marriage, then he or she necessarily receives it in its sacramental reality. There is no imposition here but a design of God by which a Christian who marries a Christian receives sacramental graces or the right to them (cf. Burke: op. cit. pp. 63; 69).

            Some of the difficulties proposed in this matter seem artificial rather than real; for instance, when it is argued that the Church, in "imposing" canonical form on baptized non-believers, is showing little respect for their conscientious freedom. But surely the initiative in the matter starts not from the Church, but from the non-believers themselves who seek a "religious" marriage. They may have a complaint to make against their partner or relatives, if the latter insist on marriage "in church", and they are in too weak a position to resist. But they have no complaint to make against the Church which imposes nothing on their conscience.

            One can allow that the non-believer who, after civil marriage, "condescends" to religious marriage to please his or her partner, may well attach no importance to this ceremony, considering it not the "inaugural" celebration of marriage (which, for him, has already been performed) (cf. G. Candelier: "Incroyance et validité du mariage sacramentel" Revue de Droit Canonique 41 (1991), pp. 141-142). But, as long as his marital intention perseveres, this "pro forma" attitude would not invalidate (cf. decis. c. Stankiewicz, June 26, 1986: vol. 78, p. 401). The marital consent, hitherto insufficient because of lack of canonical form, is now sufficient to institute sacramental marriage. To suggest that the marriage would be null not because the person had excluded sacramentality, but because he had "excluded that the religious celebration be a marriage for him" (Candelier, op. cit. p. 142), is to advance a doubtful hypothesis of total simulation; however it has nothing to do with the question of sacramentality.

            It has also been argued that the Church is not showing respect for the conscientious rights of baptized unbelievers, in considering their civil marriage invalid. If they really are nonbelievers, one would expect them to be altogether unconcerned about the Church's view of their marriage, and to regard themselves as totally unaffected by it. If they are convinced that their union is valid, why should they be worried because the Church - in which they do not believe - considers it otherwise? In any case it is clear that no right of theirs is being violated (cfr. J.-P. Schouppe: "Lo «Ius Connubii», diritto della persona e del fedele", in Fidelium Iura 3 (1993), pp. 224-225).

Sacramental marriage - a source of distinctive obligations?

            When one reads that "lack of faith is an obstacle to the assumption of the commitments of marriage deriving from the fact of the sacrament" (S. Gherro, Diritto matrimoniale canonico, Padua, 1985, p. 237), one asks what these "commitments" are beyond those of non-sacramental marriage. One readily admits that lack of faith is an obstacle to grace-assisted fulfilment of marital duties, but not to their assumption. Here once again there is perhaps an unconscious passage from the ascetical-pastoral to the theological-juridical sphere, as well as an idea that lack of faith works as a safeguard against having to assume duties - and not rather as a hindrance to the reception of benefits.

            The possibility has been raised that nullity could result from an incapacity to assume the distinctive matrimonial obligations deriving from its sacramental character. But are there any such distinctive obligations or, more precisely, are there any whose assumption can be considered essential to the constitution of marriage? When we read: "it is not so easy to determine, on the juridic level, which are the peculiar rights and specific obligations that should distinguish christian marriage from any other matrimonial union", we are in full agreement; but are not sure of the relevance of the immediate qualification: "even though on the ontological and also theological level it is easy to envisage and define them" (D. Faltin: "L'esclusione della sacramentalità del matrimonio", in La Simulazione del Consenso Matrimoniale Canonico, Lib. Ed. Vaticana, 1990, p. 93). Christian matrimony certainly gives rise to distinctive moral and ascetical (rather than broadly theological) rights and obligations; but they would have to be specified (which the author here fails to do) before one could examine their juridic relevance. My own opinion is that if it is difficult to pin down the distinctive rights/obligations of christian marriage which are juridically essential, this is because there are none; in other words, the fundamental or constitutive rights/obligations of sacramental marriage are not different to those of natural marriage.

            The same author suggests that disbelief in sacramentality would involve so degraded a concept of marriage as to render a person incapable of valid consent. The incapacity would arise from his or her "abnormal conception of marriage as an ideological option and moral depravation as a pathological life-choice, incompatible with the christian understanding of marriage, with its genuine human values of realization and of elevation in the spiritual dimension of christian matrimony, according to the tenor of c. 1055" (ibid).

            Those who are in error about the sacramental character of christian marriage certainly fail to grasp its full dignity. But it does not follow that their idea of marriage is morally depraved, or marked by a pathologically deficient grasp of the spiritual enrichment that marriage offers. It seems overly pessimistic to suppose that those who simply allege exclusion of sacramentality (and no other ground of nullity), do not have a normal enough concept of marriage and its essential rights and duties, along with a positive sense of its human value.

            Theologically speaking, then, there is no argument for sustaining that faith is a requirement for the valid reception of the sacrament of matrimony. One could add that, from the canonical viewpoint, to posit such a requirement is to advocate the creation of a new matrimonial impediment. Canonical "solutions" that give rise to significant doctrinal difficulties are to be treated with great reserve and examined most thoroughly and prudently [15].

            Questions of discipline, I repeat, should be separated from theological issues. A case can certainly be made for changing positive ecclesiastical law so that baptized (Catholic) non-believers could contract civil marriage validly. Such valid civil marriages would of course be fully sacramental, as has always been true of the marriage of baptized persons not bound by the canonical form. The question therefore can and should be pursued solely as an issue of discipline. To try to turn it into a theological issue - the possible separability in baptized persons of natural and supernatural matrimony - is unjustifiable and only leads to unwarranted confusion.

            So, while one can reasonably call for a change in the current legislation which requires a particular canonical form for the valid celebration of matrimony, it is a very different thing to propose - in effect - the refusal of church marriage to baptized Catholics whom pastors consider as lacking sufficient faith. This would involve a clear violation of ecclesial rights, and would drive not a few persons into irregular, non-sacramental and invalid civil unions.

            The idea that all the "non-religious" aspects of marriage be left to the care of the State does not seem too perspicacious. The modern State is often deficient in a basic natural understanding of marriage itself (divorce, homosexual marriages...), and lacks the apparatus for preparing people to grasp the great human significance of the step involved in marrying - which always retains the character of a religious event (cf. Leo XIII, Encyc. Arcanum, loc. cit. pp. 22-23). The denaturalization of civil marriage is a not insignificant argument for the retention of the canonical form (cf. Baudot, op. cit. pp. 79-80).

            Reference is still at times made to some selected passages in the 1977 documents of the International Theological Commission ("The sacramentality of christian marriage" and "Foedus matrimoniale": Enchiridion Vaticanum, VI, EDB, 1983, pp. 352-397), as if they lent univocal support to certain of the new opinions we have been examining. The fact is that the passages in question are very ambiguous in content, and have never received any type of endorsement from the magisterium; whereas the legitimate pastoral concerns which the documents address have been given an authoritative answer in Familiaris Consortio. I refer the reader to my article, "The Sacramentality of Marriage: theological reflections" (Annales Theologici, 7 (1993), pp. 64-66), where I have examined this point more fully.

            It should be noticed in passing that the issue we are discussing has nothing to do with the merit or otherwise of the term "contract" as applied to matrimony. "Contract" is simply a juridic way of referring to the "institutum naturale", marriage in its natural entity (cf. Hervada, op. cit. p. 800). In this sense, the well known aphorism "qui vult contractum, vult sacramentum", is not quite an adequate synopsis of the matter; it is more appropriate to say: "qui vult matrimonium, recipit sacramentum".

            As I understand it, then, the statement of c. 1055, § 2 - "a matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact" - constitutes not a positive legal requirement subject to possible modification, but a theological declaration of reality, a reality which so circumscribes the baptized person who wants a true marriage, that he or she cannot exclude sacramentality. A person cannot act "ultra vires".

            This serves to confirm our earlier observation: that an alleged case of nullity on the grounds of exclusion of sacramentality is improperly treated as a case of partial simulation. If the plea of nullity is upheld, it is because the exclusion of sacramentality has resolved itself into the exclusion of matrimony itself. The hypothesis therefore must always become one of total simulation.

NOTES

[1] cf. Communicationes, 1977, 122; 1983, 221-222. D. Baudot: "La discussion actuelle sur l'inséparabilité entre le contrat et le sacrement de mariage" L'Année Canonique 30 (1987), pp. 67; 71. C. Burke: "The Sacramentality of Marriage: theological reflections" Annales Theologici, 7 (1993), pp. 47-69.

[2] "the canonical form has in itself nothing to do with the sacrament... When the wills and hearts of baptized persons are in agreement, the sacrament is realized: and the canonical form adds nothing sacramental to it; it is there only in order to authenticate the fact in the eyes of the community, which has a direct interest in the matter because of the eminently social nature of matrimony" J.M. Aubert, Sexualité, amour et mariage, Paris, 1970, p. 105, quoted in P. Barberi: La celebrazione del matrimonio cristiano, Rome, 1982, p. 50.

[3] To argue for a valid non-sacramental marriage between Christians shows a defective understanding not just of the sacrament of matrimony, but particularly of Baptism. Baudot insists that the whole question is essentially theological (not canonical), and can only be understood in virtue of "la relation mystérieuse qui existe entre le baptême et le mariage" (op. cit. p. 67).

[4] "While we ascribe an objective efficaciousness to sacramental reality, it is foreign to Catholic thought to propose an automaticness to any sacrament without implicitly affirming the freedom of man to accept or reject - to sacramentalize or not - the graciousness of God manifested in sacramental being": R.C. Finn: "Faith and the Sacrament of Marriage", in Marriage Studies, III, Washington, 1985, p. 109.

[5] "le baptisé ne peut abolir l'être nouveau originé en lui par le baptême": Dictionnaire de Spiritualité, Beauchesne, Paris 1980. vol. X, 366; cf. T. Rincón Pérez: "Fe y sacramentalidad del matrimonio", in AA.VV. Cuestiones fundamentales sobre matrimonio y familia, Pamplona, 1980, p. 193.

[6] "Finis formae canonicae primarius est ut certo constet publice de celebratione, ne scilicet matrimonia clandestina contrahantur": Communicationes, 8 (1976), p. 32.

[7] cfr. "intentio ministri debet conformari intentioni Ecclesiae": Summa Th., III, q. 64, art 10.

[8] "it is sufficient if the party intends to contract a true marriage, as instituted by God, in which the intention of the Church is contained; and then he or she contracts validly, and by the will of Christ confects and receives the sacrament, even if he or she did not personally intend anything sacred" (c. Giannecchini, June 14, 1988: RRD, vol. 80, p. 392).

[9] In the Encyclical Arcanum, Leo XIII taught that it is false to hold that "the sacrament is a sort of added honor, or an extrinsically annexed property that can be separated or isolated from the contract at man's will" ("esse Sacramentum decus quoddam adiunctum, aut proprietatem allapsam extrinsecus, quae a contractu disiungi ac disparari hominum arbitratu queat": ASS, XII, p. 394). "It is the teaching of the Catholic Church that the sacrament is not an accidental quality added to the contract, but is of the essence of matrimony itself" (Letter of Pius IX to the King of Sardinia, Sept. 9, 1852: in "Acta SS.D.N. Pii PP. IX ex quibus excerptus est Syllabus". Rome, 1865, p. 105).

[10] O. Giacchi: Il Consenso nel Matrimonio Canonico, Milan, 1950, p. 69. "The contract (matrimony) and the sacrament are modes - one natural, the other supernatural - of the very same reality" (c. Boccafola, Feb. 15, 1988: vol. 80, p. 89); "it is evident that in the New Law nothing, besides the dignity of a sacrament, was added to the matrimonial institution, and nothing taken from it: consequently the matrimonial contract is one and the same for all men, of whatever faith, language or customs" (c. Mattioli, Apr. 14, 1956: vol. 48, p. 348).

[11] This suggests that "inseparability" is a less than satisfactory term for summarizing the theological truth that any valid marriage covenant between Christians is a sacrament. "Identification" might be a better word. Inseparability tends to create the impression that valid marriage between Christians and sacramentality are two distinct realities or elements "indissolubly" united, whereas the fact is that marriage and sacrament are identified in the case of Christians in virtue of their Baptism, this identification being due to an ontological factor extrinsic and prior to their matrimonial will. Given a true matrimonial will, their marriage is necessarily sacramental.

[12] "canonical legislation does not regard the exclusion of sacramentality as an autonomous grounds of nullity, along the lines of the exclusion of an essential element or property of matrimony; ecclesiastical jurisprudence customarily assimilates it to the exclusion of 'matrimony itself'": A.M. Abate: "Il Consenso matrimoniale nel nuovo Codice di diritto canonico" Apollinaris, 49 (1986), p. 482.

[13] Gasparri here follows the constant western teaching that the ministers are the spouses themselves; cf. Catechism of the Catholic Church, 1623.

[14] That is why I cannot agree that making the simple fact of Baptism the decisive criterion for sacramentality betrays a lack of "personalist" understanding (cf. J.M. Serrano, "El carácter personal del matrimonio", in Iustus Iudex, Essen 1990, p. 321). To my mind, it is rather the personal dignity deriving from Baptism which enables the parties to receive the gift of sacramentality, and be enriched in receiving it.

[15] As J.M. Aubert acknowledges, the "solution" of recognizing the full natural value - but not the sacramentality - of the civil marriage of baptized unbelievers, poses "graves difficultés doctrinales" ("Foi et sacrement dans le mariage" La Maison-Dieu, 104 (1970), p. 133); cf. T. Rincón Pérez: "Implicaciones doctrinales del matrimonio civil en los cátolicos", Ius Canonicum, 19 (1979), pp. 77ss.