CIVIL LAW FAMILY

THE MARRIAGE

PRESENTED TO:
  JORGE HUMBERTO CASTAÑEDA URBANO

PRESENTED BY:
VALERY RIAÑO
NATALIA MELO
DANIEL SANCHEZ
JINATHAN SALAZAR

CENTRAL UNIVERSITY

DEPARTMENT OF LAW AND POLITICAL SCIENCES

Bogota Colombia

2018-I
 THE MARRIAGE

Marriage derives from the Latin voices matris (mother) and munium (burden or
encumbrance); because the mother is attributed the heaviest burden in the procreation
and upbringing of children; because these, according to Papa Gregorio IX, "are for the
mother burdensome before childbirth, painful in childbirth and burdensome after
childbirth."

For De Ruggiero, marriage "is a conjugal society, union not only of bodies but of
souls, which has the character of permanence and perpetuity, which originates in love
and is consolidated in the serene affection that excludes the disorderly passion and the
mere sexual attraction, whose purpose is not only the protection of children and the
perpetuation of the species, but also reciprocal assistance and economic prosperity;
that creates a community of indissoluble life that engenders reciprocal duties between
the spouses and of the spouses with the offspring ".

Portalis, one of the editors of the Napoleonic Code, defines it as "the union of
man and woman to perpetuate the species, to assist and assist each other, to cope
with the weight of life and share a common destiny".

For Josserand, marriage is "the union of man and woman, solemnly hired and in
accordance with the law."

Of the diverse opinions indicated, it can be observed that two elements

essential to the institution prevail in the concept of marriage. One physical, that is, the
conjunction or bodily union of man and woman, and one moral or spiritual, which is the
intention to unite for life, to help each other and to raise the descendants.
 HISTORICAL EVOLUTION

It is necessary to make a brief account of the historical evolution of marriage,

especially because it can be appreciated the profound meaning that this institution has
had through the existence of Humanity.

Sojo Bianco, divided into four periods the history of marriage, and clarifies that it
has not necessarily been exactly the same everywhere and makes the approach from
the point of view of the Western Hemisphere. These are: Primitive Period; Period of
Roman Law, Period of Christianity and Contemporary Period.

1.- It must be admitted that marriage, to reach its current structure, has had to undergo
a long process of evolution and improvement, starting from the most primitive period of
humanity, when it seems that it was common practice for man to be united several
women (polygamy), without ruling out the opposite situation, that is, the union of a
woman with several men (polyandry), although there are not many examples of the
latter. The cessation of nomadic life originates a phenomenon of great interest in the
life of primitive man. The mating of men and women ceases to be a circumstantial fact
and the life of the couple is stabilized in search of solutions to their vital needs and thus
new forms of behavior arise that lead to the formation of the family nucleus, the clan,
the tribe and much later the state, as organizations that will respond to the increasingly
growing needs of man.

2.- With Roman Law, marriage begins to shape towards its current structure. During
the stage of the Archaic Roman Law, the de facto marriage is conserved, but the
extraordinary juridical criterion of this people, confers to this union a special
significance, from the spiritual point of view. Thus, while taking into account the
material element configured by the deduction of the wife in dominis mariti, that is, the
transfer of the wife to the house of the husband to initiate the cohabitation, the spiritual
aspect is given greater importance, to the intention to love and remain united for all life,
called affection marital, whose importance is such that its extinction caused the
dissolution of the marriage bond. Thus, the Roman matrimonial consent had to be
renewed day by day. Consequently, although not indissoluble and it is in this sense
how the definition of Modestito should be understood, that in the Digest, he pointed out
that marriage is "union of man and woman; consortium for life; community of divine and
human rights. "

3.- The period of Christianity, within the history of the evolution of marriage, can be
separated into two stages: the one before the Council of Trent and the one that follows
it. The first begins in the ninth century, when marriage begins to be regulated timidly by
Christian standards, being noted that these are not applied equally everywhere or are
strictly ordered. The process of structuring these norms was slow and gradual,
accentuating as the church gained supporters to impose their views on the secular
power. By the tenth century it is already recognized that the Church is the only source
of authority in matters of marriage and in the twelfth century canonical thinking about
the nature of the marriage bond and the way of constituting it came to be established in
a uniform manner, culminating in the Council of Trento (1542-1563), by which it is
established that all matter relating to the institution of marriage is governed by norms of
canon Law and it is affirmed that it is of the sole competence of the church as regards
the status and condition of persons.

Marriage is elevated to the dignity of a solemn sacrament, the union of the

spouses is the image of the union of Christ with his church and as such indissoluble
"What God unites, man can not separate". Thus, although the bond is born of the free
will of the contracting parties, its consecration before the church elevates it to the
category of an indissoluble sacrament.

4.- This hegemony of the church in relation to marriage, is maintained throughout the
Middle Ages and only begins to decrease during the sixteenth century, without being
able to point to an exact moment of his disappearance, this is accentuated as they
arise Modern States combined with the influence of the Reformation movement,
initiated by Martin Lucero in Germany and soon extending to the entire christian world.
For this Augustinian monk, marriage is not indissoluble; since it is not a sacrament, "but
a mundane, external thing, like clothing, food and the house" and, consequently, it
should not be regulated by the Churches exclusively by secular authority.

In Holland, around 1580, the civil marriage already appears so that those who
are not affiliated with the Catholic Church can legalize their union and in this way the
Civil Power is claiming for itself what concerns marriage, varying of course in different
countries as it varies in the influence the church. In France also appear in the sixteenth
century Ordinances that attribute to the State jurisdiction over some matrimonial
causes, subtracting them from the Ecclesiastical courts, to culminate with the French
Revolution, when the Constitution of 1971 proclaims the principle that marriage is a is a
civil status and non-religious, whose regulation therefore corresponds exclusively to the
civil power; it must be celebrated before the civil authority and registered in the
corresponding books.
 IMPORTANCE OF THE MARRIAGE

Marriage is the fundamental basis of Family Law, since most of the legal
relations that make up this branch of the law, are based or derived in one form or
another of the marriage bond.

Through all times has given special importance to marriage on the part of the
philosophers of the Right, Cicero said that marriage is the principle of society and the
foundation of the public thing (principium urbis et quasi seminarium rei publicae)
"Marriage is the center of the family and the other institutions that are members of the
Family Law are not more than consequences or add-ons that".

KINDS OF MARRIAGE

of the various classifications that have been made of the marriage, the most
important is without a doubt which divides it in religious and civil, held pursuant to the
provisions of the religion professed by the contracting parties or by following the legal
norms in force in the State concerned.

However, it is necessary to know other classifications that through the ages

have been made of this institution, in accordance with different points of view. It is as
well that we are talking about marriage solemn or public and secret or conscience,
according to it or not advertising. According to the social position of the parties, have
been divided into equal and morganatic. By the circumstances in which it is carried out,
in ordinary and extraordinary. When you take into account the carnal aspect, there is
talk of a consummate marriage and marriage. According to its legal value, is void,
voidable or valid. Finally, if you have failed to comply with certain requirements, and
depending on the knowledge or not of these irregularities, classifies the marriage null
and putative.