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St. Thomas teaches that "unity pertains to fides, just as inseparability does to sacramentum" (In IV Sent., d. 31, q. 1, art. 2 ad 4). These words, when read in conjunction with those of canon 1056 - "The essential properties of marriage are unity and indissolubility" - , would seem to suggest that just as the "bonum sacramenti" and indissolubility are synomymous, so are the "bonum fidei" and unity.

            It can be further asked if the concept of conjugal "fidelitas" is also synonymous with the "bonum fidei" and with unity. Gasparri implies that, from the theological viewpoint, the three terms are identifiable: "(Theologians) speak of unity as the "good of faith" or fidelity, which implies above all that a person must not presume to contract another marriage, as long as the bond which presently binds him or her has not been dissolved, or to get sexually involved with another person" (De Matrimonio, ed. 1932, vol. I, p. 19).

            The moral-theological and the juridical fields, however, do not always coincide. The moral importance of conjugal fidelity being clear, the question of its status in law must still be examined. Is fidelity a simple moral requirement of conjugal life ("matrimonio in facto esse"), or is the "intentio fidelitatis" also an essential juridical requisite, at least in the constitutive moment of marriage ("matrimonio in fieri")? In other words, is there a strict constitutive juridic right to fidelity?

            In the passage just quoted from Gasparri, one can distinguish two obligations: i.e. during married life: a) not to presume to contract another marriage; b) not to get sexually involved with another person. Allowing that the conjugal covenant imposes both obligations as morally binding, our question becomes: must the "intentio contrahentis" embrace both obligations equally, as essential to the juridical constitution of marriage?

            The intention of not taking another spouse presents no difficulty, there being universal agreement that this is essential to valid consent. The difficulty arises precisely with regard to the "intentio rem sexualem cum tertia persona non habendi". Is such an intention essential for the constitution of marriage? Does the simple "propositum in futuro adulterandi", present at consent, invalidate?

            It seems to me that jurisprudence has never achieved a fully coherent position on this; and further that some jurisprudential trends, which at the time of their appearance were regarded as innovative, correspond to an understanding of marriage - or, more specifically, of the object of matrimonial consent - which is no longer supported by the new Code.

Jurisprudence

            There is a long and strong tradition in rotal jurisprudence, identifying the "bonum fidei" with unity, i.e. with the fact that each partner accepts the other as only spouse. This view maintains that the "bonum fidei" is excluded only if, in consent, the right to conjugal intercourse is not reserved exclusively to one's spouse, but is extendable also to others.

            "Marriage is null, if one of the parties positively rejects the "bonum fidei" or, in other words, the unity of matrimony in its root principle ["in suo principio"] (c. Jullien, Jan 24, 1938: SRRD, vol. 30, p. 63).

            "The "bonum fidei", which is often improperly understood, is violated only if one of the contracting parties, in the celebration of the marriage, intends, besides giving and accepting the right to conjugal acts with the other, to extend the right or obligation to conjugal acts also to some third person" (c. Canestri, July 15, 1941, SRRD, vol. 33, p. 622).

            "The exclusion of the "bonum fidei" or, in other words, of the unity of marriage invalidates only in the case where a contracting perty with a positive act of the will denies his partner exclusive power over his or her body in relation to conjugal acts; not however by the one whose intention is simply to sin against conjugal faith" (c. Wynen, July 20, 1943, SRRD, vol. 35, pp. 626-626; similarly, c. Anné, December 9, 1964: SRRD, vol. 56, p. 912).

            "In order to invalidate marriage on these grounds it is necessary that the contracting party excludes from his or her consent the right itself, as pertaining exclusively to his or her partner, giving this right, in whole or in part, to some third person" (c. Wynen, June 17, 1950, SRRD, vol. 42, p. 383).

            "The (marital) right therefore is only deprived of exclusiveness when the person marrying intends to divide equally with others the "right over the body" related to conjugal acts" (c. Rogers, December 20, 1965, SRRD, vol. 57, p. 967).

            "The person who, by not granting to his or her partner an exclusive right, rejects the unity of the bond, contracts invalidly" (c. Fiore, Nov. 16, 1974: SRRD, vol. 66, p. 750).

            According to this view, therefore, the "bonum fidei" is excluded by the person who does not give exclusive conjugal rights to his or her partner, but reserves the license to establish, during the other's lifetime, a binding relationship of a "conjugal" character, marked by mutual rights and obligations, with a third party. It is true that such an intended relationship must be described as "conjugal" or pseudo-conjugal (cf. SRRD, vol. 49, p. 261, c. Mattioli) because no real marital relationship is established. Similarly the exchange of rights/obligations must be termed pseudo-juridic, because it lacks the moral basis from which alone true juridicity can derive. Nevertheless, the simulator's intention is to enter a form of binding "conjugality" that can be made extensive to various persons.

            This position has been criticised as interpreting the "bonum fidei" in too limited a sense, restricting its effective exclusion to those cases where the simulator's intention is polygamous. A contrasting view has emerged in recent decades and has received a fair measure of support. It identifies the "bonum fidei" not with the juridical property of unity, but rather with the moral obligation of fidelity. Abandoning the traditional formula of "bonum fidei seu unitas", it prefers to make a different equivalence: "bonum fidei seu fidelitas".

De Jorio's thesis

            Arturo De Jorio, the main proponent of this view, argues that fidelity can be observed even by the person who excludes unity; therefore the "bonum fidei" and the unity of marriage do not coincide in meaning. He wrote in a Sentence of July 13, 1968: "Re the exclusion of the "bonum fidei" or fidelity: abstractly speaking, the exclusion of the "bonum fidei" is not to be confused with the exclusion of unity: for someone can exclude unity and at the same time oblige himself to living fidelity with two or three particular women" (SRRD, vol. 60, p. 555). In a 1963 Sentence he had accepted the criterion that the "bonum fidei" signifies "exclusivenes of the right to use the body" (exclusivitas iuris corpore utendi) and is therefore excluded by whoever retains the right "to surrender his or her body to another, or to others, and to have sexual relations with them whenever he or she chooses" (Sent. Oct 30, 1953, c. Mattioli: vol. 45, p. 641-642).

            His conclusion is that the exclusion of this "bonum fidei seu fidelitas" occurs simply if the contracting party does not accept the obligation of "servandi fidei", i.e. does not give his or her spouse the "exclusive right over his or her own body" (Vol. 60, p. 556, n. 8): "which also occurs if he did not give the right to another or to others, but simply reserved to himself the license to have sexual relations indiscriminately with whomever he pleases: in other words, if he did not let himself be bound by the obligation of keeping faith towards his partner" (Jan 10, 1973, vol. 65, p 12. See other De Jorio Sentences in the same line: June 17, 1964; Feb 26, 1969; Oct 27, 1971, etc.). The logical conclusion of this thesis is that the decisive criterion for establishing the exclusion of the "bonum fidei" is the intention to "divide" (with a third party) not the conjugal bond but simply the copula. So in a 1969 Sentence coram Ewers, we read: "it is to the multiplication of the copula, and not of the bond, that attention must be paid" (SRRD, vol. 61, p. 937).

            While much jurisprudence has tended to adopt the De Jorio position, it would seem to be open to a number of serious objections. The first and most radical is the doubt whether it can any longer be properly sustained in the light of the new Code. In developing his thesis, De Jorio (SRRD, vol 55, p. 717) noted that the view hitherto prevailing (identifying the "bonum fidei" with unity, and its invalidating exclusion with the exclusion of an essential property of marriage) was based on a collation of cc. 1013, § 2 and 1086, § 2 of the 1917 Code. He, on the contrary, based his new view on the definition of the object of matrimonial consent, as it was given in c. 1081, § 2 of the same Code: that "act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. Ewers, Feb. 10, 1973: SRRD, vol. 65, p. 88). The 1983 Code, however, gives a totally different definition of the object of matrimonial consent: that "act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage" (c. 1057, § 2). In particular, the new Code relates exclusiveness, not to the "right over the body" (of which it nowhere makes any mention), but to the marriage bond: "From a valid marriage arises a bond between the spouses which by its very nature is perpetual and exclusive..." (c. 1134).

            The result is that the whole canonical basis to the De Jorio thesis would seem to have been undermined. The exclusiveness of the conjugal relationship, in its juridical relevance, is now clearly referred to the bond, not to the copula (the right/obligation of an exclusive copula retains of course all of its moral importance). It is the intention not just of having illicit relations, but of creating a pseudo-marital bond, with another, that is incompatible with the constitutional exclusiveness of a real conjugal bond, and so vitiates the unity of marriage [1]. This has been concisely put in a recent decision coram Giannecchini: "It is necessary that the exclusiveness of the conjugal bond - with the mutual obligation to unity which it implies - be rejected, before one can speak of the exclusion of the right in its principles" (in una Beneventana, May 28, 1985, n. 3).

            The De Jorio thesis tends to reduce the "bonum fidei" to its physical dimension of the right to exclusive intercourse, with scarcely any further qualification. In other words, it focusses attention on the exclusiveness of the physical act, and tends to abstract it from an overall consideration of conjugality. In this it is notably out of harmony with the new Code, where a clear change of emphasis is evident: away from a juridic notion of marriage centered on the "ius in corpus" considered in its mere physical entity; and toward a deeper and more human understanding of what is involved in a true conjugal relationship and bond. The mutual obligation, between husband and wife, to exclusiveness in sexual relations, retains all of its force. But with the new Code one is no longer justified in taking the "ius ad copulam" as the object of marital consent, or as the final canonical criterion by which questions regarding the "bonum fidei" (or the "bonum prolis") should be judged.

            One should note that the thesis in question has in some cases led to a reinterpretation not just of the "bonum fidei", but of the property of unity itself, referring it also to the copula rather than to the bond. So we read in a case coram Bejan: "Unity as an essential property of marrriage should be understood as excluding the multiplication not of the bond but of the copula" (SRRD, vol. 51, p. 397).

The "propositum adulterandi"

            On the practical level, this line of jurisprudence has important consequences, not devoid of difficulties. If consistently and logically applied, it involves the invalidity of every marriage where one of the parties, at the moment of consent, not only foresees that he or she may commit adultery some time in the future, but intends to do so, at least in certain circumstances. In other words, its inherent logic leads to the conclusion that any intention of "rem cum tertia habendi" invalidates.

            Here it runs into difficulties which are more easily avoided under the other position. They are worth examining because I think they suggest that the traditional position, despite the criticism to which it has been subjected, is not only more consistent with the nature of marriage and the teaching of the Church, but also allows certain life situations to be submitted to a finer juridic analysis.

            The "praevisio" or the "propositum adulterandi" has always been a cross for the canonist seeking to determine what invalidates under the heading being considered. Jurisprudence has had to deal with many cases of a person who really intends to marry even though, at the moment of consent, he not only foresees he will not always be sexually faithful to his partner, but in fact means to be unfaithful, in certain circumstances. Judges, even in more recent times, have been hesitant to maintain that such marriages are necessarily invalid (c. Palazzini, Feb. 12, 1969: SRRD, vol. 61, p. 156; c. Pinto, Nov. 28, 1978, vol. 70, p. 529, n. 2; c. Pompedda June 21, 1982, vol. 74, p. 360; c. Pinto, March 6, 1987, n. 5, etc.). The hesitation is understandable enough, since the alternative is the wholesale invalidity of marriages that have not been all that infrequent in history: for instance, of soldiers or sailors who, on marrying, know they will not always be "faithful", and who intend in fact to have sex relations with others, during their long absences from their wives.

            Modern conditions of life make prolonged absences from home, for professional perhaps more than for military reasons, even more frequent than in the past. The question then is of the utmost practical importance: can one give valid matrimonial consent even if one intends, in the event of interruptions of conjugal cohabitation, to satisfy one's sexual "needs" with a third party? We are of course not discussing the evident immorality of such an intention, but the juridical issue of whether it invalidates matrimonial consent.

            If one remains in what has been the mainstream of jurisprudential thinking, one can deal with such cases without special difficulty. Since there is no intention of extending conjugal rights or spousal status to a third party, the one-spouse essence of the "bonum fidei" is not excluded, despite the intention of breaking the moral obligation of conjugal fidelity. As Wynen puts it: "The immoral purpose (of retaining a lover) in no way proves that the contracting party therefore intended to deprive the other spouse of the (marital) right itself... The distinction between a legitimate conjugal union and illicit intercourse with a third person is so firmly embedded in the minds of christians, however loose in morals, that the possibility of intellectual confusion regarding the marital right itself is not to be admittted" (c. Wynen, Apr. 29, 1939: SRRD, vol. 31, p. 255; cf. c. the same Ponens, SRRD, vol. 43, p. 96).

            But if, as De Jorio maintains, not exclusive conjugality but the exclusive copula is at the heart of the "bonum fidei", then it seems impossible to avoid concluding that any marriage contracted with the "propositum adulterandi" is necessarily and always invalid.

            Some already embrace this conclusion. Others seek to avoid it in different ways, particularly by recourse to the over-worked, and much criticized, distinction between the intention to grant a right, and the intention not to respect the right granted. The theory is well known: that only the exclusion of the right - but not the exclusion of the fulfilment of the obligation corresponding to the right - invalidates consent. A former Dean of the Rota has aptly remarked that this distinction is one "which can scarcely be understood [even] by those who are experts in juridical matters" (c. Graziolo, May 11, 1944, SRRD, vol. 36, p. 330). The distinction, nevertheless, is much invoked. So we frequently read phrases to the effect that the intention to commit adultery 'does not violate the obligation of keeping fidelity, but only the fulfilment of the obligation'...

            While much jurisprudence has for long suggested that the thesis according to which one can grant a right whose exercise one excludes is based on the authority of St. Thomas (Suppl., q. 49, art. 3), this can be disputed (De Jorio himself disputes it: SRRD, vol. 55, p. 718). I do not intend to go into this here beyond remarking that St. Thomas' point is surely that one can confer and receive a true mutual right, even though one intends personally not to exercise the right oneself, or to demand the fulfilment, from the other person, of the corresponding obligation that he or she has undertaken (the marriage of Mary and Joseph being an obvious example).

            Marriage is valid even if both spouses of mutual accord renounce the exercise of some marital right, but not if one unilaterally determines never to fulfil some essential obligation. Some rights/obligations can be legitimately considered from the viewpoint of their subject alone; but this is not true of the essential rights/obligations of matrimony, which are necessarily characterized by mutuality. A person can certainly undertake a real personal obligation that he intends to break (celibacy, for instance); but can he properly be said to confer on another a true right - over his own person, for life - when he firmly intends never to fulfil the obligation to respect this right or to allow it to be exercised?

            The identification of the "bonum fidei" with the moral concept of fidelity rather than with the juridic concept of unity, can lead to "elitist" theories of what is necessary for valid marriage. If we hold that the intention of committing adultery on some future occasion necessarily invalidates consent, we are imposing an incapacity for marriage on all those (who are thus deprived of a most basic human right) whose sexual weakness is such that they know and, in certain circumstances (of separation, etc.), intend that they will not be faithful to married chastity. A recent rotal decision formulates just such an incapacity: "Whoever is so given to promiscuity with women that he is not able to be faithful to one wife, cannot enter a valid marriage" (c. Huot, Oct. 30, 1986, n. 9).

            We could remark in passing that this rigid position would in strict logic give grounds to declare the nullity of any marriage where a contractant had a "propositum masturbandi", for, from the moral point of view, masturbation by a spouse is also a sin against conjugal fidelity [2].

            The "bonum fidei" is impoverished, in both its theological and juridical content, if it is reduced to a mere prohibition of adultery. As we read in a decision coram Serrano: "the "bonum fidei" is broader, in its positive content, than a mere prohibition of adultery - which is rather its consequence" (July 25, 1980: RRD,, vol. 72, p. 531).

A re-appraisal

            It seems opportune to make a re-appraisal of the situation, especially in the light of the new definition of the object of marital consent as given by the present Code where it is defined no longer as the "perpetual and exclusive right over the body..., etc.", but as a man and a woman's mutual self-gift in order to establish a marriage.

            What is the juridical content of this "sese tradere/acceptare" which, according to c. 1057, § 2, now makes up the object of marital consent? It is not (and cannot be) the totality of one's "self", but rather that aspect of self which is one's conjugality; and which, while morally calling for many elements that should go to make up the ideal "consortium totius vitae", is essentially specified, from the juridic viewpoint, in the giving of an exclusive and life-long right over one's sexual procreativity. It is these three elements - exclusiveness, procreativity and permanence (the augustinian "bona" of "fides", "proles" and "sacramentum") - which indicate the essentials of the conjugal self-gift and characterize the marriage bond, while the positive exclusion of any one of them invalidates matrimonial consent (cf. coram Burke, Apr. 11, 1988, nn. 5-8: Monitor Ecclesiasticus, CXIV (1989) IV, pp. 469-471).

            One's "self" is indivisible and unrepeatable. It therefore cannot be given to several persons at the same time; it can only be given to one. "I give you my self" is the affirmation that characterizes conjugality. But if one spouse intends to give the same gift of his conjugal self also to other persons - if he proposes to divide his conjugality - , then it is at the most a part of his conjugal self that he gives to each one. In other words, whoever gives his or her conjugal sexuality to different persons contemporaneously, gives it dividedly to each one, and does not give it wholly to any.

            "Such a [conjugal] communion is radically contradicted by polygamy; this, in fact, directly negates the plan of God which was revealed from the beginning, because it is contrary to the equal personal dignity of men and women who in matrimony give themselves with a love that is total and therefore unique and exclusive" (Familaris Consortio, n. 19).

            The "bonum fidei" is rejected if one does not accept the exclusiveness and uniqueness of the conjugal relationship: either by a positive polygamous intention to confer the status of spouse on a third party as well, or else by simply not conferring the status of only spouse on one's partner. Both exclude the essence of conjugal uniqueness. On the contrary, a simple intention "rem cum tertia habendi", however sinful, does not of itself invalidate.

            I therefore cannot agree with De Jorio's conclusion: "We hold it as certain that the "bonum fidei" is excluded, and marriage is therefore invalidly contracted on these grounds, by the woman who, at the moment of consent, intends to have sexual relations also with other men, even though she in no way means to give them a right over her body. In such a case she does not assume the obligation of keeping faith, which we consider to be more than enough to nullify marriage" (Sentence of July 13, 1968, vol. 68, pp. 556-557, n. 10).

            The right given in marital consent cannot be reduced to a mere "ius exclusivum in proprium corpus", as if the essence of marriage consisted in the physical relationship alone. Having lost sight of the conjugal meaning which should characterize intercourse, the De Jorio position raises any intention of physical infidelity to the level of an exclusion of conjugality.

            "Fides" is not just a matter of reserving the "use of one's body" to one person. What invalidates is not the mere intention "carnem dividere", but the intention "coniugalitatem dividere". Prescinding from the moral question, I maintain that there is no juridical incompatibility between the intention to take a husband or a wife, and the intention to continue seeking other sexual outlets. The distinction is brought out in a recent rotal Sentence: "If the petitioner, who was so promiscuous already before marriage, intended to continue having sexual relations with different lovers, it follows from this evil resolution simply that he was not ready to live up to the obligation of fidelity, not that, in the moment of consent, he rejected the obligation by denying conjugal faith to Helen. The conclusion can therefore be rightly drawn that Bruno, despite his immoral ways and promiscuity, knew the practical difference between giving the due "ius in corpus" to his spouse alone, and the habitual intention of continuing, once married, to have intercourse with lovers with whom he had relations before marriage. In other words, we hold that Bruno distinguished between a wife, endowed with matrimonial rights, and a harlot" (c. Masala, Oct. 6, 1981: RRD, vol. 73, pp. 465-466).

            Jurisprudence has been constant in referring partial simulation to the exclusion of some element essential to the constitution of an authentic matrimonial bond. The partial simulator, in other words, intends a bond deprived of one of the "bona" or properties that are essential to true conjugality: a "conjugal" bond deprived of procreativity or permanence or exclusiveness. Nevertheless, he wants a bond of some sort. If he wants no marriage bond at all, then he is guilty not of partial but of total simulation. Therefore when De Jorio says: "those who exclude the "bonum fidei" do not intend to duplicate or multiply [marital] bonds, but rather to free themselves from them" (SRRD, vol. 63, p. 785; cf. vol. 65, p. 12, n. 8), he would really seem to be raising the exclusion of the "bonum fidei" to the level of total simulation.

St. Thomas' mind

            What is St. Thomas' mind on this? His teaching on unity is quite clear: "«And they will be two in one flesh»: i.e. through carnal intercourse by which they become, as it were, one flesh ... From this it seems to follow that it pertains to the nature of the married state that a husband should not have several wives, nor a wife several husbands; because then they would be several - rather than two - in one flesh" (In Genes. cap. II).

            "The one-spouse law is not of human but of divine institution: stamped on the heart, just as those other matters which pertain in any way to the natural law" (Suppl., q. 65, art. 2). A main argument he puts forward is the dignity of marriage and the basic equality between the sexes which demand a one-to-one spousal relationship. "If a wife had just one husband, but the husband several wives, there would not be an equal (interpersonal) relationship of friendship on both sides" (Summa c. Gentiles, III, c. 124).

            His teaching on fides is more nuanced. Just as he does for proles, he distinguishes fides "in se" and fides "in suis principiis". "One can consider fides and proles in two ways. In themselves ("in seipsis"); and so they pertain to the use of matrimony, by which offspring is produced and the conjugal convenant is observed... They can also be considered in their principles ("in suis principiis"); and in this sense proles means the intention of [having] offspring, and fides, the obligation of keeping faith. Without these latter matrimony cannot come into existence, for their presence is required by the very conjugal covenant itself. Therefore, if the consent necessary for marriage were to include something contrary to these, the marriage would not be valid" (Suppl., q. 49, art 3).

            The first part of this is clear enough. Marriage does not always produce children, nor is married fidelity always observed; however, neither fact, in itself, affects validity. But marriage, he says, cannot come into being without "fides in suis principiis". What does St. Thomas mean by this more basic "fides" which must be intended, and which binds with such a radical obligation that its non-acceptance invalidates consent? Does this more fundamental "fides" consist simply in the intention of sexual fidelity, coinciding with the moral obligation of no adultery? Although, prima facie, that might seem to be St. Thomas' meaning, both moral theology and jurisprudence right down to our days have resisted such a conclusion. Sanchez teaches clearly: "It is possible to contract a valid marriage, with the intention of not keeping faith" (De S. Matrimonii Sacramento, L. II, disp. 29, n. 11).

            To analyse St. Thomas' thought properly, we must remember that here he is seeking out the very principles of conjugality: the basic properties of the conjugal union. Marital consent must involve an intention to respect them. Just as one cannot reject the procreative or the indissoluble nature of the conjugal relationship, neither can one reject its exclusive character. It is then that faith which "pertains to unity" - to the unity not just of the marital copula but of the marriage bond - which one must intend to observe: intending, that is, to accept one's partner as unique spouse, and not to break this faith one has pledged by taking another husband or wife.

            The "bonum fidei in suo principio" is therefore to be essentially referred not to mere physical fidelity, but to the oneness of conjugality. In the "Supplementum" (q. 67, art. 3 ad 5), St. Thomas explicitly refers the "singularitas uxoris" to the "bonum fidei", just as elsewhere he speaks of that "singularitas quam in uxore quaerunt" (I-II, q. 28, art. 4). Physical fidelity pertains to fides "in se". The obligation to observe it is unquestioned; but since it does not touch the heart - the very principle - of the marital bond, the intention not to observe it does not, of itself, invalidate consent.

The conjugal act

            Confirmation of this can be drawn from a deeper consideration of the conjugal act. Intercourse, as between spouses, if effected in a truly human way (c. 1061, § 1) - which implies understanding of and respect for the unique manner in which the sharing of personal procreativity unites husband and wife - is a privileged sign of marital self-giving (cf. Gaudium et spes, n. 49). Sexual intercourse however, even between spouses, is not always a sign of a real gift of self. In some cases it may be simply an expression of sexual selfishness; a sign therefore not of giving but rather of seeking self-centered satisfaction. Consequently, there is a copula that is conjugal, and one that is not. And this is true even within marriage. A contraceptive copula does not consummate marriage, for it does not effect true sexual union: "a man and a woman become one flesh in carnal intercourse through the intermingling of their respective procreative elements" [3]

            Similarly, the retention of a "right" to have contraceptive (or other unnatural) intercourse with a third party would not constitute an exclusion of the "bonum fidei". As we read in a Sentence coram Parrillo of August 12, 1929: "Since the exclusive surrender of the body is not given for any purpose whatsoever, but solely for acts which are per se apt for the procreation of offspring, it follows that the intention of surrendering one's body to a third party for different [sexual] acts, and precisely for acts against nature, from which, per se, generation is not possible, is not repugnant to the "bonum fidei" in the strict sense". And he gives the reason: "For in the case of such fornication, there is not that division or parting of the body which theology sees in real or presumed polygamy or polyandry" (SRRD, vol. 21, p. 435-436). Staffa, who quotes this approvingly, holds that marriage is valid if a man puts the condition that he can have contraceptive sex with another woman (De Conditione contra Matrimonii Substantiam, Rome 1955, pp. 21-22). The point is that contraceptive intercourse is not a sharing of conjugality.

            Just as the intention to allow only contraceptive intercourse with one's spouse excludes the "bonum prolis", so the intention to have non-conjugal intercourse with another, does not exclude the "bonum fidei". But even the retention of the "right" to have natural intercourse with a third party would not necessarily exclude the "bonum fidei in suo principio", unless such intercourse was intended precisely as an expression of conjugality. "As a result the exclusion of the "bonum fidei" in its principles is more difficult to prove than other cases of simulation" (c. Parisella, Feb. 14, 1974: SRRD, vol. 66, p. 93).

The obligations of "fides"

            St. Augustine, speaking of "fides" in the context of I Cor., 7, 4, says: "The Apostle allows so great a right to this faith, as to call it «power», saying, «the woman does not have power over her own body, but the man; and similarly the man...»" (De bono coniug., c. 4 (PL 40, 376). The power in question is the power to actualize the conjugal meaning of sexual intercourse. For a person, in the moment of consent, to reserve the right to have intercourse with a third party, being joined to him or her, "not as to a prostitute, but as to a [husband or] wife" (St. Thomas, Suppl., q. 62, art. 2 ad 3) - i.e. as an expression of conjugal love - is that violation of the juridic essence of the "bonum fidei", which excludes the one-to-one aspect of the bond and prevents the constitution of matrimony. To reserve the right to have intercourse with another, simply to satisfy lust (as with a prostitute), or in any case as an expression of non-conjugal love (not as with a husband or wife), is a violation of that moral aspect of the "bonum fidei" which is properly called faithfulness, and which constitutes a continuing value of marriage "in facto esse". Such a reservation, however, does not exclude conjugality.

            Ewers remarks: "with regards to a simulator under this ground, one must examine his will, that is, his purpose of fashioning for himself and celebrating a marriage outside and against the teaching of Christ and the Church. For it is in this departure from the correct order that the nullity of consent is rooted, because its object is so substantially different from the [true] notion of matrimony" (Sent. Oct. 11, 1969, vol 61, p. 937). Exactly; but, as regards the "bonum fidei", what the correct order of matrimonial consent essentially calls for is the right to have a partner who chooses one spouse, not the right to a partner who is above any sexual weakness.

            The duty not to have physical sexual intercourse with anyone but one's spouse is certainly the first - but not the only - grave obligation of married "fidelitas". The obligations of fidelity go farther than that (cf. c. Anné, Dec. 9, 1964, SRRD, vol. 56, p. 913). It could be argued that the spouse who allows a strong affective liaison to develop with a third party, sins more against the conjugal covenant than the one who is guilty of transient physical infidelities. Neither in one case nor in the other, however, can it be said that the intention, present at consent, of engaging in such infidelities, necessarily invalidates. It is the intention not merely to break fidelity, but to exclude conjugality, that nullifies.

            As a recent sentence coram Masala says: the "bonum fidei" is excluded by whoever lays claims to "the power or right to have sexual intercourse with other men or women, as spouses, or who allows the same power to his or her partner. In such cases, there is no acceptance of the obligation of one indissoluble bond with one person" (Sent. Jan. 15, 1985, n. 5).

            It is worth noting that a decision coram De Jorio himself concludes for nullity "ob exclusum bonum fidei", because the petitioner clearly "placed his lover on an equivalent level with his wife...; he showed that he held the two women as equal in right, offering them conjugal life in common, and dividing the right over his body equally between Martina and Maria Cecilia... And therefore, by rejecting unity, he contracted invalidly" (Sent. June 17, 1964: SRRD, vol. 56, p. 501).

            "The obligation of married fidelity pertains partly to the merely ethical order, and partly also to the juridical order" (c. Anné, Dec. 9, 1964, loc. cit.). Therefore, unless jurisprudence is careful in using expressions such as "ius ad fidelitatem", confusion can be created between what is juridically essential and what is morally important. To be accepted as one and only spouse is a juridic right, in the strict sense, which is of the essence of the "bonum fidei" and a constituent right of matrimony "in fieri". If it is excluded from consent, there can be no marriage. Sexual fidelity in conjugal life is indeed a continuing right/obligation of matrimony "in facto esse". If a person, at consent, intends to exclude this right (or to violate the right, once given), this would be a grievous offence against married love and the marriage covenant, but would not necessarily indicate that the essential constitutive right to conjugality had not been given.

            This, I believe, is a more valid explanation of St. Thomas' distinction between "fides in suo principio" and "fides in se". The first refers to the exclusive character of conjugality; it is the rejection of this which violates the "bonum fidei in suo principio". The other is the obligation of maintaining sexual fidelity (mainly, but not only, in the matter of intercourse); this latter - "fides in seipsa" - is a serious obligation of justice. But its violation, even if intended from the start, does not have the juridic consequence of vitiating consent.

            It is to be hoped that jurisprudence will cease to invoke a forced distinction (forced, that is, in its application to matrimonial consent) between the assumption of an obligation and the simultaneous non-acceptance of the obligation to fulfil the obligation. There is nothing forced, however, about a distinction between a juridic obligation (the unity of marriage) whose assumption is essential to valid consent, and a moral obligation (sexual faithfulness) which should be assumed in the moment of consent, but whose non-assumption does not invalidate [4].

            A thesis might possibly be developed, and be acceptable to some, that an exclusion of fidelity (but not of conjugality) could be considered as a partial exclusion of the "bonum fidei", and therefore not invalidating; in the same way as jurisprudence has generally come to accept that a partial exclusion of the "bonum prolis" does not invalidate.

NOTES

[1] It is very arguable that the exclusiveness of the right to the conjugal act has been reabsorbed by the new Code into unity, as an essential property of marriage.

[2] Lehmkuhl: Theol. Moral., II, p. 600, n. 588; Cappello, De Sacramentis, V, n. 806; cf. St. Alphonsus, Theol. Moral. VI, n. 936.

[3] Suppl., q. 55, art. 4 ad 2. St. Thomas here is clearly not using "semen" with the distinctive masculine meaning biology gives it. To my mind, the phrase that Stankiewicz uses - "elementum procreativum" - gives his sense better. See my article, "Matrimonial Consent and the Bonum prolis": Monitor Ecclesiasticus, CXIV (1989) III, p. 399.

[4] "animadvertere oportet quoad exclusionem boni fidei dari notam distinctionem inter exclusionem unitatis coniugii et voluntatem non adimplendi onus fidelitatis coniugalis; facilius enim datur voluntas adulterium perpetrandi quam consensus restrictio ex exclusione boni fidei" (c. Canals, June 5, 1974: SRRD, vol. 66, p. 407, n. 3). What Canals says is well put, precisely because it is much deeper and more accurate than the usual expression and application of the "well-known" distinction.