C.

1055 and The Sacramentality of Marriage: An examination of the ius vigens

For canonists and pastors of souls the Sacrament of Marriage looms large in terms of
preparation, counselling, paperwork, and annulments, for priests and people alike marriage
brings joy and pain. When the Code of Canon Law is opened to examine the law on marriage the
eye of the canonist falls first upon canon 1055 that begins title seven on marriage, and it is
possible that some might overlook this introductory canon as being a theological gloss which
(whilst interesting or even edifying) does not actually affect the succeeding canons. This
approach, though understandable for those who work with these canons on a daily basis may
fail to appreciate the canonical import of this introductory canon. It is crucial, however, that
any theological or canonical undertaking involving the Sacrament of Marriage must consider of
what the sacramentality of marriage consists.
This article is a source critical examination of canon 1055 §§1-2 concerning the
sacramentality of marriage, as well as an analysis of different scholarly views on the meaning
and role of this canon in the ius vigens. From this analysis the connection between contract and
sacrament will be discussed with reference to the so-called doctrine of inseparability. In
examining the sources of canon 1055 it will be demonstrated that this is not merely a matter of
positive ecclesiastical law, but the doctrine of the Church. Then finally this article will discuss
the sacramental dignity of marriage in canons 1099 and 1101 §2, with specific reference to the
theological and canonical debates during the drafting of these canons before the promulgation
of the 1983 Code of Canon Law in order to examine and analyse how the doctrine of the
sacramentality of marriage is instantiated in the law of the Church.

§1. CANON 1055 §§1-2

Canon 1055 begins the title on marriage, and the first paragraph states, “The marriage
covenant, by which a man and a woman establish between themselves a partnership of their
whole life, and which of its own very nature is ordered to the well-being of the spouses and to
the procreation and upbringing of children, has, between the baptised, been raised by Christ
the Lord to the dignity of a sacrament.”1 Paragraph two adds, “Consequently, a valid marriage
contract cannot exist between baptised persons without its being by that very fact a
sacrament.”2 It should be noted at the outset that whilst the first paragraph of this canon draws
heavily on the theology of the Second Vatican Council, particularly paragraph 48 of Gaudium et
Spes,3 the specific references to the sacramentality of marriage are almost identical between the
1983 and 1917 codes of canon law,4 and the second paragraph is identical; however, the move
away from the use of contractual terms to the “marriage covenant”5 is significant and will be
discussed below. Whilst the theology of the Second Vatican Council regarding the partnership
of the whole of life and the good of the spouses is by no means irrelevant to the

1 Ed. Ernest Caparros et al., Code of Canon Law Annotated (Montreal: Wilson & Lafleur, 1993); unless otherwise
stated translations of canons from the 1983 Code of Canon Law are taken from this text. The Latin text of the
canons from the 1983 Code of Canon Law are taken from: Codex Iuris Canonici auctoritate Ioannis Pauli PP. II
promulgatus (Vatican City: Libreria Editrice Vaticana, 1983).
“Matrimoniale foedus, quo vir et mulier inter se totius vitae consortium constituunt, indole sua naturali ad
bonum coniugum atque ad prolis generationem et educationem ordinatum, a Christo Domino ad sacramenti
dignitatem inter baptizatos evectum est.”
2 “Quare inter baptizatos nequit matrimonialis contractus validus consistere, quin sit eo ipso sacramentum.”
3 Vatican II, pastoral constitution Gaudium et spes, December 7, 1965, AAS 58 (1966), 1025-1115, paragraph 48.
4 C. 1012 §1 of the CIC 1917 states, “Christus Dominus ad sacramenti dignitatem evexit ipsum contractum
matrimonialem inter baptizatos”, and the parallel part of c. 1055 §1 is different simply in grammar. It is, perhaps,
noteworthy that the new elements from Gaudium et Spes are all contained in a subordinate clause, with the only
other difference between the canons being the CIC 1983’s use of foedus rather than contractus.
5 C. 1055 §1, “Matrimoniale foedus”.

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sacramentality of marriage the analysis of the sacramentality of marriage here does not
primarily concern those new elements in canon 1055.

1.A. SOURCES OF CANON 1055

Given the almost identical parallel between canon 1055 §1 of the 1983 Code and canon
1012 §1 of the 1917 Code regarding the sacramentality of marriage, and the verbatim
repetition of canon 1012 §2 of the 1917 Code in canon 1055 §2 of the 1983 Code the analysis
of the sources of this canon will examine several of the sources cited by Cardinal Gasparri in
the official annotated edition of the 1917 Code6 and contained in the Fontes7. This analysis will
provide the historical, theological, and canonical background to the sacramentality of marriage
which is the central focus of this article. However, it is first necessary to note a point sagely
made by J. A. Nowak (1978), “It is extremely important, moreover, when examining in retrospect
any particular moment of this self-revelation, that a distinction be constantly kept in the
forefront of our mind between the occasion of a doctrinal statement and the cause of that
statement”.8 Here the author is remarking that every doctrinal (and also canonical) statement
whether conciliar, papal, or dominical has an historical circumstance, and understanding this
particular historical circumstance is important; however, the particular historical circumstance is
not necessarily the cause of the statement in such a way that changing historical circumstances
necessitate abandoning the utility or meaningfulness of these statements. An analysis, or even
overview, of all the texts cited by Cardinal Gasparri falls outside the scope of this work, but
given their importance this article will analyse the relevant citations from the Council of Trent,
Pope Bl Pius IX and Pope Leo XIII.9

1.A.1. The Council of Trent

The first Tridentine text cited by Cardinal Gasparri is canon one of the seventh session
of the Council of Trent (1547) which simply states, “If anyone shall say that the sacraments of
the New Law were not all instituted by Jesus Christ our Lord, or that there are more or less
than seven, namely, baptism, confirmation, Eucharist, penance, extreme unction, order,
matrimony, or even that anyone of these seven is not truly and strictly speaking a sacrament: let
him be anathema.”10 The doctrine of marriage was also treated in the twenty-fourth session
(1563), in which the legitimacy of the Church establishing diriment impediments was asserted,11
and the condemnation is found of those who asserted that, “matrimonial causes do not belong
to ecclesiastical judges”,12 amongst other canons.13 E. Schillebeeckx (1965) stated that the
Council of Trent did not here assert the radical unity of the contract and sacrament as was later
claimed by some authors.14 This point is echoed by M. G. Lawler (1991) who notes that Trent
defines marriage as a sacrament, and not specifically the marriage contract. He adds that this

6 Codex iuris canonici Pii X Pontificis Maximi iussu digestus, Benedicti Papae XV auctoritate promulgatus / praefatione, fontium
annotatione et indice analytico- alphabetico ab em̄ o Petro Card. Gasparri auctus (Rome: Typis Polyglottis Vaticanis, 1948).
7 Codicis iuris canonici fontes / cura em̄ i Petri Card. Gasparri editi, 9 vols. (Rome: Typis Polyglottis Vaticanis, 1923-1939)
[hereafter: Fontes].
8 James A. Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, Studia Canonica 13
(1978), 315-363 (316); emphases in the original.
9 For an analysis of the other citations please see: R. C. Finn, “Faith and the Sacrament of Marriage: General
Conclusions from an Historical Study”, in Marriage Studies III: Reflections in Canon Law and Marriage, ed. T. P. Doyle
(Washington DC: Canon Law Society of America, 1985), 95-111; Nowak, “Inseparability of Marriage and
Contract in Marriages of the Baptised”; E. Schillebeeckx, Marriage: Human Reality and Saving Mystery (New York:
Sheed and Ward, 1965).; P. J. Elliott, What God Has Joined: The Sacramentality of Marriage (Eugene, OR; Wipf and
Stock, 2010).
10 DS 844.
11 DS 974.
12 DS 982.
13 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 326.
14 E. Schillebeeckx, Marriage: Human Reality and Saving Mystery (New York: Sheed and Ward, 1965), 752-753.

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was not a mistake, but that the Council fathers were clear here, and in other areas, in intending
to leave certain matters open for further theological debate.15 However, it must be noted that
whilst canon one of the seventh session does not define the marriage contract as a sacrament
per se, other canons of the Council do refer to the “contract of marriage”,16 therefore it is clear
that the notion of the marriage contract was not foreign to the Council fathers. L. Orsy (1980)
importantly notes that the difference between contract and covenant is not necessarily great:
covenant is a form of contract, and both are inadequate in some respects and point to the same
external sign by which the sacrament is identified, “covenant” in the world of theology and
“contract” in the world of law:

It follows that, as long as we are moving in the world of law, it matters

little if the exchange of promises is called contract or covenant, provided
it is understood that the word refers to the external sign through which
the mystery is identified. If we are moving in the world of theological
reflection, either term, contract or covenant, is inadequate to describe
the reality.17

The decree Tametsi of the Council of Trent would influence the discussion of the
sacramentality of marriage, as the decree introduced (for validity) the requirement of the
presence of the parish priest (or ordinary or delegate) and two witnesses, therefore outlawing
so-called clandestine marriages.18 This is the predecessor of the requirement of canonical form
present in the current Code (c. 1108 §1). However, it should be made clear that the requirement
for the canonical form of marriage admits of dispensation (c. 1127 §2), and exception in cases
of grave inconvenience (c. 1116). The requirement for the canonical form of marriage, whilst it
had a mixed reception in the years after the Council of Trent, has become so common that
many people, including some commentators, speak as if a religious rite of marriage is necessary
for the validity of the marriages of Catholics. C. Burke (1993) states, “Before the Council of
Trent when clandestine marriages were frequent and valid, many people entering such
marriages had probably no sense or intention of performing a religious rite; theirs were
nevertheless true sacramental marriages.”19 He clarifies that Trent did not change the
sacramental rite of marriage as that requires simply the valid exchange of consent between two
Christians, but added a requirement by virtue of positive ecclesiastical law, therefore in a strict
sense the requirement of canonical form is, “completely irrelevant” to the question of the
sacramentality of marriage.20

1.A.2. Pope Bl Pius IX

In the intervening years between the Council of Trent and the election of Pope Pius IX
in 1846 one of the major theological developments concerning the sacramentality of marriage
was St Robert Bellarmine’s language of “elevation” with regard to the sacrament, and it is this

15 Michael Lawler, “Faith, Contract, and Sacrament in Christian Marriage: A Theological Approach”, Theological
Studies 52 (1991), 712-731 (726); this view is shared by Susan Wood, “The Marriage of Baptized Nonbelievers:
Faith, Contract, and Sacrament”, Theological Studies 48 (1987), 279-301 (288).
16 Canon three of the 24th session (1563), DS 973; cf. Nowak, “Inseparability of Marriage and Contract in
Marriages of the Baptised”, 328.
17 L. Orsy, ‘Christian Marriage: Doctrine and Law Glossae on Canons 1012-1015’, The Jurist 40 (1980), 292.
18 From session 24 of the Council of Trent (1563), DS 990-992.
19 Cormac Burke, “The Sacramentality of Marriage: Theological Reflections”, Annales theologici 7 (1993), 47-69
(52).
20 Ibid., 53.

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language that we find in the current Code.21 However, there had been various other important
political and ecclesiastical events, particularly the rise of secular (or temporal) power in the
sphere of religion, not simply in Protestantism, but in the movements of Gallicanism,
Febronianism and Josephism. In various times and in various ways these movements
endeavoured to grant to the secular rulers greater power, including in the area of marriage law,
to which the ecclesiastical response was to confirm Church power and authority over marriage,
and emphasise the sacramental nature of the matrimonial contract,22 such that in 1817 the Holy
Office issued an instruction to the Prefect of the Missions in Martinique stating that the
inseparability of sacrament and contract in marriages between the baptised is Catholic dogma.23
Cardinal Gasparri includes in the fontes for this canon many documents issued by Bl Pius
IX. In September 1852 Pius IX wrote to King Victor Emmanuel II (not yet king of Italy) who
had allowed civil marriage in his territories, and the pope stated,

It is a dogma of Faith that matrimony has been raised to the dignity of a

Sacrament by Our Lord Jesus Christ, and it is a doctrine of the Catholic
Church that the Sacrament is not an accidental quality added to the
contract, but is the very essence of matrimony so much so that the
conjugal bond is not legitimate if there is not the Matrimony-Sacrament,
but a mere concubinage.24

Later that same month the pope delivered the allocution Acerbissimum vobiscum, in a
secret consistory, directed at a situation that arose because of the civil authorities in New
Granada, Colombia. The pope stated that every marriage amongst the faithful was necessarily a
sacrament at one and the same time, that any other relationship is not a sacrament and is
therefore concubinage.25 Acerbissimum also claims as heresy the teaching that for Catholics the
sacrament can be divided from the contract.26 G. J. Pothier (2008) adds that this allocution of
Pius IX is important because it seems to include marriages not simply of Catholics but between
all the baptised. This is also borne out in another citation by Cardinal Gasparri: an instruction
from the Congregation for the Propagation of the Faith sent to Greek-Romanian Bishops in
1858, in which La Lettera is quoted verbatim, and applied to marriages not simply between
Catholics but all Christians. The instruction emphasises that the Congregation viewed La
Lettera as not simply addressing a particular problem with the then King of Sardinia, but having
wider theological and canonical implications, emphasising that the teaching expressed therein
was not mere prudential policy but Catholic doctrine.27 K. Boccafola (2014) cites Acerbissimum
as evidence that the inseparability of contract and sacrament, “has been authoritatively taught
by the ordinary magisterium.”28 Pius IX would also incorporate this teaching into his encyclical

21 C. 1055 §1; cf. Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 331. For more
information on the canonical and theological import of this language of elevation see: Eugenio Corecco,
‘L’inseparabilità tra contratto matriomoniale e sacramento, alla luce del principio scolastico “Gratia perficit, non
destruit naturam” in Ius et Communio. Scritti di diritto canonico, eds. Graziano Borgonovo and Arturo Cattaneo
(Casale Monferrato, Italy: Edizioni Piemme, 1997), vol. II, 446-515.
22 Cf.: Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 332-339.
23 Ibid, 339-340, notably this instruction was sent before the reign of Pope Bl Pius IX.
24 Pius IX, “La Lettera”, (19 September 1852), quoted in M. J. Byrnes, Matrimony: Papal Teachings (Boston, MA:
Daughters of St. Paul, 1963), 107.
25 Byrnes, Matrimony: Papal Teachings, 110; DS 1640; cf. also, Pothier, On the Sacramentality of Marriage: the Divergence
of Canon Law and Theology and the Inability to Maintain the Presumption of Facere Quod Facit Ecclesia, 35.
26 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 344.
27 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 345; Pothier, On the
Sacramentality of Marriage: the Divergence of Canon Law and Theology and the Inability to Maintain the Presumption of Facere
Quod Facit Ecclesia, 35.
28 Kenneth Boccafola, “Lack of Faith and Its Effect on the Validity of the Matrimonial Consent of the
Baptized”, The Jurist 74 (2014), 59-78 (63), footnote 11.
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Quanta Cura, the so-called ‘Syllabus of Errors’.29 Nowak states that so strong was the growing
belief in the inseparability of sacrament and contract in marriages between the baptised, that
there was a move for this to be defined at the First Vatican Council; however, the Theological
Commission advised against this as it was not explicitly revealed in revelation.30

1.A.3. Pope Leo XIII

The teachings of Pope Pius IX would be taken up, almost immediately, by Pope Leo
XIII. His encyclical Inscrutabili, issued in 1878, would re-affirm that the contract of matrimony
was raised to the dignity of a sacrament,31 and condemn attempts to equate a merely civil
contract with the sacrament of marriage.32 In a document addressed to several Italian bishops
in 1879, Ci Siamo,33 he would disavow any separation of contract and sacrament between the
baptised and any attempt by the state to commandeer authority over the sacrament. This
attempt, he stated, is, “founded on a dogmatic error many times condemned”.34 Most
important, however, would be his encyclical Arcanum divinae sapientiae issued in 1880, this
document would make it clear that the sacramentality of marriage is not to be viewed or
construed as a component of marriage. Leo XIII wrote,

Hence it is clear that among Christians every true marriage is, in itself
and by itself, a sacrament; and that nothing can be further from the truth
than to say that the sacrament is a certain added ornament, or outward
endowment, which can be separated and torn away from the contract at
the caprice of man. 35

and:

Let no one, then, be deceived by the distinction which some civil jurists
have so strongly insisted upon - the distinction, namely, by virtue of
which they sever the matrimonial contract from the sacrament, with
intent to hand over the contract to the power and will of the rulers of
the State, while reserving questions concerning the sacrament of the

29 The following error is condemned, “A true marriage can exist between Christians by virtue of a purely civil
contract; and it is false to assert that the contract of marriage between Christians is always a sacrament; or, that
there is no contract if the sacrament is excluded”, DS 1773.
30 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 349-350; in any case the
proposed document on marriage would never be discussed as the Council was suspended because of the
invasion of the Papal States. For more information see: Corecco, ‘Il sacerdote, ministro del matrimonio?’ in Ius et
Communio. Scritti di diritto canonico, vol. II, 349-445.
31 Pope Leo XIII, encyclical Inscrutabili dei consilio, April 21, 1878, paragraph 14: “Our Lord Jesus Christ, by raising
to the dignity of a sacrament the contract of matrimony, in which He would have His own union with the
Church typified, not only made the marriage tie more holy, but, in addition, provided efficacious sources of aid
for parents and children alike” http://w2.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-
xiii_enc_21041878_inscrutabili-dei-consilio.html [accessed 21 Feb 2019].
32 Ibid.: “But when impious laws, setting at naught the sanctity of this great sacrament, put it on the same
footing of mere civil contracts, the lamentable result followed, that, outraging the dignity of Christian
matrimony, citizens made use of legalized concubinage in place of marriage”.
33 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 351; in Ci Siamo he would
also write: “What judgement is to be formed of a Catholic state which throws overboard the sacred principles
and the wise enactments of the Christian law on matrimony, and sets about the wretched job of creating a
marital morality all its own…”, quoted in: R. Hittinger, “Pope Leo XIII (1810-1903)” in The Teachings of Modern
Roman Catholicism on Law, Politics and Human Nature, J. Witte Jr, F. S. Alexander eds. (New York: Columbia
University Press, 2007), 61.
34 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 352.
35 Pope Leo XIII, Arcanum divinae sapientiae, 24; translation from: http://w2.vatican.va/content/leo-xiii/en/
encyclicals/documents/hf_l-xiii_enc_10021880_arcanum.html [accessed 21 Feb 2019].
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 Church. A distinction, or rather severance, of this kind cannot be
approved; for certain it is that in Christian marriage the contract is
inseparable from the sacrament, and that, for this reason, the contract
cannot be true and legitimate without being a sacrament as well. For
Christ our Lord added to marriage the dignity of a sacrament; but
marriage is the contract itself, whenever that contract is lawfully
concluded.36

Echoing this teaching Burke (1993) states that sacramentality is, “a supernatural force that
permeates and vivifies each and every one of the natural elements and properties of marriage,
raising them to the order of supernatural meaning and efficacy.”37
In this encyclical, as Nowak notes, the Pope, “synthesised centuries of doctrinal
development in the area of marriage.”38 This teaching would be repeated in other documents
throughout the reign of Leo XIII,39 including in one of his final documents, Dum multa tristitia,
issued in 1902 one year before his death; here Pope Leo XIII would provide a, “veritable
paradigm of the doctrine of inseparability”,40 clarifying and emphasising three key points: that
Christ raised marriage between the baptised to the dignity of a sacrament; that each and every
marriage between the baptised is a sacrament; that the sacramental principle cannot be
separated from the contractual principle in any way.41

1.B. CANON 1012 OF 1917 CODE OF CANON LAW AND CANON 1055 OF THE 1983 CODE OF
CANON LAW
The three principles that clearly emerge by the end of Pope Leo XIII’s reign were
codified in the 1917 Code of Canon Law; paragraph one of canon 1012 states, “Christ the Lord
raised the marriage contract itself to the dignity of a sacrament among the baptized”,42 and the
second paragraph adds, “Therefore among the baptized there can be no valid contract of
marriage without its also being a sacrament.”43 Given the almost identical textual reproduction
of the parts referring to the sacramentality of marriage in the 1983 Code of Canon Law
commentary on the canons will be analysed together.44 Commenting on canon 1012 §1 of the
1917 Code of Canon Law Orsy (1980) states that this canon does not direct action in any way,
and so it is not, strictly speaking, a legal text, but rather a theological statement.45 He goes on to
say that it is anachronistic to say that the Lord raised the marriage of the baptised to the dignity
of a sacrament, much less the contract,46 and so the law is not making an historical claim but a

36 Ibid., 23.
37Burke, “The Sacramentality of Marriage: Theological Reflections”, 49.
38 Nowak, “Inseparability of Marriage and Contract in Marriages of the Baptised”, 354.
39 See also: Pope Leo XIII, Arcanum, 19, “Marriage has God for its Author, and was from the very beginning a
kind of foreshadowing of the Incarnation of His Son; and therefore there abides in it a something holy and
religious; not extraneous, but innate; not derived from men, but implanted by nature.” And: Ibid., Nowak,
“Inseparability of Marriage and Contract in Marriages of the Baptised”, 355-358.
40 Ibid., 359.
41 Pope Leo XIII, encyclical Dum multa, December 24, 1902, paragraph 2: http://w2.vatican.va/content/leo-xiii/
en/encyclicals/documents/hf_l-xiii_enc_24121902_dum-multa.html [accessed 24th June 2018].
42 All translations of the CIC 17 are taken from this text unless otherwise stated: E. Peters, The 1917 or Pio-
Benedictine Code of Canon Law: in English Translation with Extensive Scholarly Apparatus (San Francisco: Ignatius Press,
2001), 351; CIC 17 c. 1012 §1: “Christus Dominus ad sacramenti dignitatem evexit ipsum contractum
matrimonialem inter baptizatos.”
43 CIC 17 c. 1012 §1: “Quare inter baptizatos nequit matrimonialis contractus validus consistere, quin sit eo ipso
sacramentum.”
44 Cf. Finn, “Faith and the Sacrament of Marriage: General Conclusions from an Historical Study”, 95.
45 Orsy, “Christian Marriage: Doctrine and Law Glossae on Canons 1012-1015”, 284-285.
46 Here should be repeated that the only textual difference outside of the subordinate clause of CIC 83 c. 1055
§1 is that this code refers to the foedus rather than contractum of CIC 17 c. 1012 §1.
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proclamation of belief, “It is a quiet profession of faith…That is, the literary form of our text
is proclamation of doctrine”.47 Referring to canon 1012 §2 of the 1917 Code48 Orsy comments
on the Latin double negative, “nequit…quin sit…In positive English, this means that whenever
there is contract there is sacrament” between the baptised.49 However, he goes on to say that it
is not immediately clear from the text whether this refers to the essential order of things that
can be, or the existential order of things that are. To put this another way, according to Orsy, it
is not immediately clear from the law whether the legislator is saying that there are not any valid
non-sacramental marriages, or that there cannot be any valid non-sacramental marriages.
However, this does become clear when consistere is construed as existere. One notes that consistere
is also the word used by Pope Leo XII in Arcanum, “atque ideo non posse contractum verum et
legitimum consistere, quin sit eo ipso sacramentum”.50 Moving on from this Orsy states that
this canon only makes sense when the baptised are believers, he goes to discuss whether
baptised nonbelievers can have sacramental marriages, and if not whether they can have valid
natural (which is to say non-sacramental) marriages. At this point it suffices to note that not
only are valid non-sacramental marriages not envisaged by canon 1055 §2 (and canon 1012 §2
of the 1917 Code), but actually ruled out.
T. J. Green (1980) comments on the revised schema De Matrimonio, published in 1980, in
which the coetus on marriage law had revised some elements of the 1975 schema on sacramental
law to take into account submissions by various groups and individuals.51 Norm One of this
schema would become canon 1055 of the 1983 Code. Green notes, as a matter of concern, that
the provisions of canon 1012 of the 1917 Code on the identity of sacrament and contract in
marriages between the baptised is reproduced exactly, not taking into account what he believes
to be the insights of the propositions of the International Theological Commission in 1977
concerning the marriages of baptised nonbelievers. His concern is that the coetus should not
have simply reproduced the norm if they were unable to make a decision on the
appropriateness of the doctrine of inseparability.52 However, Donal Kelly (1995) notes that the
Revision Commission explicitly stated that the, “law must reflect the teaching of the Church’s
magisterium as it stands.”53 This is not a decision not to make a decision, but rather a decision
that law should reflect doctrine.
Lawler (1991) comments on the significance of the word quare which begins canon 1055
§2. He states that the particle implies consequence from canon 1055 §1 and is thus usually
translated as “consequently”; however, he does not believe that §2 necessarily follows from §1
since, the author avers, the Council of Trent did not define that the contract of marriage had
been raised to the dignity of a marriage, but sought to leave this open. It suffices to note that
Lawler does appear to be correct in his belief that the omission of contractual language by
Council of Trent deliberately left the debate open,54 even though contractual language was used
in other canons on marriage.55 The particle quare seems to emphasise that very point made
above, that the doctrine of inseparability is a consequence of the sacramentality of marriage
and this doctrinal point has been translated into the law of the Church.

47 Orsy, “Christian Marriage: Doctrine and Law Glossae on Canons 1012-1015”, 288.
48 Which is textually identical to canon 1055 §2 of the 1983 Code.
49 Orsy, “Christian Marriage: Doctrine and Law Glossae on Canons 1012-1015”, 295.
50 Fontes, vol. 3, 160, “and that, for this reason, the contract cannot be true and legitimate without being a
sacrament as well.” Arcanum 23.
51 Thomas J. Green, “The Revised Schema de Matrimonio: Text and Reflections”, The Jurist 40 (1980), 63; Codex
luris Canonici, Schema Patribus Commissionis Reservatum (Rome: Libreria Editrice Vaticana, 1980).
52 Thomas J. Green, “The Revised Schema de Matrimonio: Text and Reflections”, The Jurist 40 (1980), 57-127
(65).
53 Donal Kelly, “Marriage” in Ed. Gerard Sheehy et al., The Canon Law: Letter and Spirit (Collegeville, MN:
Liturgical Press, 1995), 573.
54 DS 844.
55 Canon three of the 24th session (1563), DS 973.

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 In summary, it is clear that in canon 1055 that the supreme legislator asserts that every
marriage between the baptised is a sacrament, such that no valid marital contract can exist
between the baptised without it being a sacrament. It has been demonstrated that this is not
merely an assertion of positive ecclesiastical law, but relates to the teaching of the Church.56
This teaching was not invented by Pope Pius IX, even though it was in the nineteenth century
that it found its clearest form. It seems sage to repeat the comment of Nowak that a distinction
must be made between the historical circumstance in which teaching arises and its cause. The
doctrine of inseparability took its clearest form in the tumultuous Church and state tussles of
the eighteenth and nineteenth centuries; however, the brief overview provided above should
indicate that this historical circumstance was not the cause of the teaching, so much as was the
desire of popes, and others, to elucidate the Church’s teaching on the sacrament of marriage in
the face of civil interference. Though, at the same time it is clear that not all authors agree with
this view as R. C. Finn (1985) states that the pronouncements of popes Pius IX and Leo XIII
cannot be disentangled from their historical circumstances.57 In the next section some
theological and canonical corollaries of this teaching, commonly called the doctrine of
inseparability, will be explored.

§2. THE DOCTRINE OF INSEPARABILITY

M. Pompedda (1990) begins by noting the statement from Leo XIII’s Arcanum that, “for
certain it is that in Christian marriage the contract is inseparable from the sacrament, and that,
for this reason, the contract cannot be true and legitimate without being a sacrament as well.”58
However, he also notes that this does not solve all the theological and canonical questions
regarding this teaching, commonly called the doctrine of inseparability. This teaching centres
on the unity of the order of creation and the order of redemption for baptised persons
entering marriage, so that for them the contract and sacrament are “one and the same reality,
the same thing.”59 Pompedda concurs with Burke (1993) that “inseparability” does not, or
should not, imply two things that are joined together in such a way that they cannot be again
separated but rather some form of identity between the two elements,60 though Pompedda
does justify the “notional distinction” between contract and sacrament, though not the
distinction as between two elements.61 In seeking to decide whether it is better to describe the
relationship between sacrament and contract as “inseparable” or “identical” the
aforementioned points by Burke and Pompedda must be borne in mind equally. The former
term may suggest two separated elements brought together that they may not be separated
again, and the latter may deny any even notional distinction between sacrament and contract.
Therefore, insofar as both terms are somewhat inadequate it seems best to use both words, and
specifying what aspects of the doctrine is being emphasised or proposed in each particular
instance.

56 Cf.: Pompedda, “Faith and the Sacrament of Marriage Lack of Faith and Matrimonial Consent: Juridical
Aspects”, 37; Burke, “The Sacramentality of Marriage: Canonical Reflections”, 554-556.
57 R. C. Finn, “Faith and the Sacrament of Marriage: General Conclusions from an Historical Study”, in Marriage
Studies III: Reflections in Canon Law and Marriage, ed. T. P. Doyle (Washington DC: Canon Law Society of America,
1985), 95-111 (107).
58 Mario F. Pompedda, “Faith and the Sacramentality of Marriage — Lack of Faith and Matrimonial Consent:
Juridical Aspects”, in Marriage Studies IV: Reflections in Canon Law and Theology, ed. John A. Alesandro (Washington,
DC: Canon Law Society of America, 1990), 32-65 (37), citing Leo XIII, Arcanum, 23.
59 Ibid., 38.
60 Ibid.; Burke, “The Sacramentality of Marriage: Theological Reflections”, 67.
61 Pompedda, “Faith and the Sacrament of Marriage Lack of Faith and Matrimonial Consent: Juridical Aspects”,
38.
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 Various authors, including Finn,62 Lawler,63 Himes,64 and Orsy65 raise the question of
whether further discussion and investigation of the doctrine of inseparability could provide
justification for the possibility of valid non-sacramental marriages between the baptised.
Cuenin (1978) refers to this as the “all or nothing”66 problem, that the baptised nonbeliever
must accept the sacrament of marriage or no marriage at all. He proposes that the doctrine of
inseparability, or doctrine of identity, between contract and sacrament, can only be understood
as meaningful, “within the context of faith.”67 Cunningham (1982) describes the doctrine as
leading to the “false notion of automatic sacramentality”68 which he hoped would be
abandoned. Doyle (1985) discusses the feasibility of having “welcomed civil marriage” in the
Church,69 as does de Naurois (1982).70 De Naurois identifies three particular reasons why the
Church should, or must, in some form recognise as valid, but non-sacramental, the marriages
of baptised nonbelievers: the right to confidentiality, the right to religious liberty, and the right
to marriage.71 According to the author the first right entails that an individual may only be
admitted or refused the celebration of Christian marriage on the basis of some external criteria
rather than “inquisition”; the second right suggests a right of baptised Catholics to dissent or
apostatise. The third right, also discussed by other authors, concerns the right of all people,
including baptised nonbelievers, to marry, “The right to marriage necessarily implies the right
which couples have to recognition, to investiture by the Church, with procedures which deal
with each juridical situation.”72 Whilst these points cannot be answered individually, it seems
necessary to identify one clear weakness in de Naurois’ argumentation: he seems to believe the
right to marriage involves the right to whatever the parties, or society, construe as marriage.73
Since he believes the baptised nonbeliever has this right he considers canon 1055 §2 to infringe
this right. Wood specifically refers to arguments made on the basis of religious freedom or a
right to marry, and she correctly identifies that this conception of religious freedom, and
freedom to choose more generally, is a freedom regardless of content.74 Baptised nonbelievers
continue to have the right to marry, what they do not have is the right to marry according to
their own conception of marriage.
Pompedda identifies two different lines of thought in the debate over the issues
associated with the marriages of baptised nonbelievers. The first group, “defend the identity
and the inseparability of the marriage contract and the sacrament”,75 and the second group,
“believe in, or at least put forward in discussion this identity, and decisively defend the
separability of the two”.76 Belonging to the first group he identifies the following theologians

62 Finn, “Faith and the Sacrament of Marriage: General Conclusions from an Historical Survey”, 103.
63 Lawler, “Faith, Contract, and Sacrament in Christian Marriage: A Theological Approach”, 713.
64 Michael J. Himes, “The Intrinsic Sacramentality of Marriage: The Theological Ground for the Inseparability
of Validity and Sacramentality in Marriage”, The Jurist 50 (1990), 198-220 (220).
65 Orsy, “Faith Sacrament, Contract, and Christian Marriage: Disputed Questions”, 397.
66 Walter H. Cuenin, “The Marriage of Baptized Non-Believers: Questions of Faith, Sacrament, and Law”,
CLSA Proceedings 40 (1978), 38-48 (39).
67 Ibid., 42.
68 Richard G. Cunningham, “Marriage and the Nescient Catholic: Questions of Faith and Sacrament”, in Marriage
Studies II: Reflections in Canon Law and Theology, ed. Thomas P. Doyle (Washington, DC: Canon Law Society of
America, 1982), 20-37 (23).
69 Thomas Doyle, “The Theology of Marriage: Where We Are Today”, Studia Canonica 19 (1985), 83.
70 Louis de Naurois, “Marriage of Baptised Persons Who Do Not Have Faith”, in Marriage Studies II: Reflections in
Canon Law and Theology, ed. Thomas P. Doyle (Washington, DC: Canon Law Society of America, 1982), 38-59.
71 Louis de Naurois, “Marriage of Baptized Persons Who Do Not Have Faith”, 52.
72 Ibid.
73 “Because of its social dimension marriage can be defined only in relation to the social structure from which
the couple has requested investiture”, Ibid, 51.
74 Wood, “The Marriage of Baptized Nonbelievers: Faith, Contract, and Sacrament”, 293.
75 Pompedda, “Faith and the Sacramentality of Marriage — Lack of Faith and Matrimonial Consent: Juridical
Aspects”, 76.
76 Ibid.

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and canonists: Adnes, Arboleda, Bersini, Bertrams, Cerri, Corecco, Flatten, Hervada, Navarrete,
Nowak, Pinto, Gomez, Robleda. Belonging to the second group: Araud, Aubert, de Baciocchi,
Garcia Barabarena, Castano, Kelly, Manazanares, Wachenheim, Sequiera, De Paoli, and
Grasso.77
Pompedda further adds that the “first and foremost”78 juridic consequence of the
doctrine of inseparability, note the doctrine not simply its legislative formulation, is the
inadmissibility of the possibility of a valid natural, but non-sacramental marriage between
baptised persons. This is regarded not as mere positive ecclesiastical law, but the teaching of the
Church. As A. Stankiewicz (2004) notes, “Inseparability…in the theological-canonical and
jurisprudential context has the category of truth of proxima fidei, or at least of Catholic doctrine
and theologica certa”.79 Urbano Navarrete wrote:

Christ the Lord so disposed the order of providence so that whoever is

consecrated to the Trinity and is made a sharer of the priesthood of
Christ through baptism, if he should enter a conjugal covenant, this
covenant will have for him the nature of a sign, but of a sign not in the
same sense which applies to any marriage, but in the peculiar and specific
sense which pertains to the salvific and eschatological order in which the
baptized person has already been inserted through baptism, and
therefore the sacrament is already constituted.80

This is what Burke simply refers to as, “reality”.81 It is not within the power of the
human will to change reality, because the human will is not absolutely sovereign. To deny the
human will the ability to change reality is not to deny its dignity, but to assert that the will must
act within the realm of those things that are possible. It is, “the necessary human condition of
having to work within reality.”82 This reality is, specifically, the reality of the individual’s
baptism, and the reality of Christ’s institution of the sacrament of marriage. In another work,
Burke discusses the difference between marriage and the other sacraments, based on the raising
or elevation of marriage in the sacrament. In the sacrament of baptism a minister who seeks
only to wash, even though he uses the correct formula, does not baptise, there is no sacrament:
“Our Lord did not will that every ablution of Christians be a sacrament: but this is exactly what
He did will of every marriage between Christians. Sacramentality is a consequence not of their
will, but of their condition as Christians incorporated into the economy of Salvation”.83 Burke
provides a host of quotations from rotal jurisprudence to justify this position, the following is
typical and noteworthy: “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.”84 It can be seen, therefore, that, as Pompedda observes, the
sacramentality of marriage and the doctrine of inseparability are fundamentally linked, such
that the doctrine of inseparability is a, “direct consequence of the dogma of the sacramentality

77 Ibid.
78 Ibid., 40.
79 A. Stankiewicz, “La giurisprudenza in tema di esclusione della sacramentalità del matrimonio”, in Matrimonio e
Sacramento (Rome: Citta del Vaticano, 2004), 96. See also: P. Palazzini, “Il Sacramento del Matrimonio”, in I
Sacramenti (Roma: Coletti, 1959) 756, who states that this teaching is fidei proxima.
80 Urbano Navarrete, “Dialogus”, Periodica 67 (1978), 86.
81 Cormac Burke, Cormac Burke, “The Sacramentality of Marriage: Canonical Reflections”, Monitor Ecclesiasticus
119 (1994), 545-565 (549).
82 Ibid.
83 Burke, “The Sacramentality of Marriage: Theological Reflections”, 68.
84 C. Staffa (5 August 1949), quoted in Cormac Burke, “The Sacramentality of Marriage: Canonical Reflections”,
546; this is discussed further below.
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of Christian marriage.”85 The language of the doctrine may have arisen in a given age but it is
not simply a reflection of that age’s concerns.
One final point concerns the use of the word “contract” with regard to the doctrine of
inseparability. It should be recalled that the distinction between contract and covenant is not
necessarily as significant as some authors might state, but it is certain that the use of the word
“contract” in canon 1055 §2 and with regard to the doctrine of inseparability might be seen as
being opposed to a covenantal understanding of marriage. However, the use of the word
‘contract’ in this instance, primarily refers to the defined consensual origin of marriage. Burke
(1993) points out that not only is the concept of inseparability inappropriate in so much as it
implies formerly separable elements that are now made inseparable, but that the word
“contract” here is misleading in this debate, “as if it were tied up necessarily with
“contractualist” theories of marriage”.86 The doctrine of inseparability does not primarily
concern a contractualist theory of marriage, but rather the nature of marriage itself between
the baptised. In order to avoid this confusion the term bond will be used rather than contract.

§3. SACRAMENTAL DIGNITY IN CANONS 1099 AND 1101 §2

Having discussed the sacramentality of marriage, canon 1055, and the doctrine of
inseparability, this article will conclude the examination of the sacramentality of marriage by
looking at the phrase “sacramental dignity” in the context of canons 1099 and 1101 §2. This
section will seek only to analyse the process by which the phrase “sacramental dignity”87 came
to be included in canon 1099 and not included in canon 1101§ §2 as a means of exploring one
particular facet of how the sacramentality of marriage, and the doctrine of inseparability, is
instantiated in the ius vigens.
Canon 1084 of the 1917 Code of Canon Law stated, “Simple error concerning the unity
of marriage or its indissolubility or its sacramental dignity, even if it gave rise to the contract,
does not vitiate matrimonial consent.”88 It was therefore a negative norm expressing the fact
that non-simple error89 about unity, indissolubility or sacramental dignity could vitiate consent.
This would seem to be a simple and obvious corollary of canon 1012 §2 of the 1917 Code;
however, when it came to canon 1086 §2 on simulation in the 1917 Code there was no mention
of sacramental dignity, but of exclusion of “some essential property of marriage”,90 which
canon 1013 had previously defined as unity and indissolubility.
When the coetus on marriage met under the auspices of the Commission for the Revision
of the Code in 1966 it held that mentioning sacramental dignity in canon 1084 on error but not
in canon 1086 §2 on simulation was a discrepancy that needed to be corrected. The coetus
proposed correcting this discrepancy not by adding “sacramental dignity” to the new canon on
simulation but deleting it from the canon on error,

Error about sacramental dignity, as long as both baptized contracting

parties intend to contract an exclusive and indissoluble marriage, has no
effect since that marriage is a sacrament independent of the will of the
parties-unless, of course, they placed, as a true condition to their

85 Pompedda, “Faith and the Sacramentality of Marriage — Lack of Faith and Matrimonial Consent: Juridical
Aspects”, 76.
86 Burke, “The Sacramentality of Marriage: Theological Reflections”, 67.
87 C. 1099 “sacramentalem dignitatem”.
88 “Simplex error circa matrimonii unitatem vel indissolubilitatem aut sacramentalem dignitatem, etsi det causam
contractui, non vitiat consensum matrimonialem.”
89 Simple error is error that does not determine the will, cf. Boccafola, “Lack of Faith and Its Effect on the
Validity of the Matrimonial Consent of the Baptized”, 71.
90 Canon 1086 §2 of the 1917 Code: “At si alterutra vel utraque pars positivo voluntatis actu excludat
matrimonium ipsum, aut omne ius ad coniugalem actum, vel essentialem aliquam matrimonii proprietatem,
invalide contrahit.”
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 consent, the exclusion of the sacrament, in such a way that they did not
want the marriage if it were a sacrament; this, however, is irrelevant in
terms of this canon.91

Following the recommendations of the 1966 coetus came the publication of the 1975
Schema on the Sacraments, which followed the recommendations of the 1966 coetus and made no
mention of sacramental dignity in its canon on error.92 Comments and observations were then
made on the 1975 schema and so the coetus on marriage met again in 1977, the coetus considered
the proposal that the phrase “sacramental dignity” be re-inserted into the proposed canon on
error as in the 1917 Code. This proposal was discussed, however the vote was tied (three voting
to approve the change, three voting against, and two abstentions) and therefore the proposed
change failed.93 An important moment came in 1978 when Zenon Grocholewski published an
article disagreeing with the then predominant view that sacramentality can only be excluded if
the party excludes marriage itself, stating, “It seems to me that sacramentality can be excluded
in the same way and with the same effects as the exclusion of unity and indissolubility.”94 This
is to say that just as one does not have to reject marriage per se to exclude indissolubility, but one
can exclude indissolubility on its own by a positive act of the will and therefore simulate
marriage, and so with sacramentality. He saw the 1917 Code as being inconsistent in
mentioning sacramental dignity in canon 1084 on error but not canon 1086 §2 on simulation
and proposed that the new canon on simulation list sacramental dignity alongside unity and
indissolubility.95 He wrote that, “it seems necessary that besides the exclusion of the other
elements, the exclusion of sacramental dignity should be made explicit.”96 In June 1980 the
Commission for the Revision of the Code published a new schema for the whole code;
however, Grocholewski’s proposal was not heeded and there was no mention of sacramental
dignity in either canon on error or simulation.97
In 1981 the Commission published a document called the Relatio,98 this was a report
containing comments and observations of the commissions, consultors, and some other
bodies. In this document note was made that the Sacred Congregation for the Doctrine of the
Faith had requested the phrase “sacramental dignity” be inserted into the canon on error, and
Archbishop Jose Falcao, a member of the Congregation, had also asked for the phrase to be
inserted into the canon on simulation. Both requests were granted, and so Grocholewski’s
argument seemed decisive.99 However, in October 1981 the Plenary Session of the Commission
for the Revision of the Code was held, the so-called Congregatio Plenaria, and the phrase
“sacramental dignity” was discussed at length. Cardinal Höffner of Cologne proposed

91 From Communicationes 3 (1971), 76; quoted in Lawrence G. Wrenn, “Sacramentality and the Invalidity of
Marriage”, The Jurist 60 (2000), 205-232 (207).
92 Wrenn, “Sacramentality and the Invalidity of Marriage”, 207.
93 Communicationes 9 (1977), 373-374; Wrenn, “Sacramentality and the Invalidity of Marriage”, 208; J. Fox, “A
General Synthesis of the Work of the Pontifical Commission for the Revision of the Code of Canon Law”, The
Jurist 48 (1988), 823.
94 Zenon Grocholewski, “Crisis doctrinae et iurisprudentiae rotalis circa exclusionem dignitatis sacramentalis in
contractu matrimoniali” Periodica 67 (1978), 295; translation by Daniel Faltin, “The Exclusion of the
Sacramentality of Marriage with Particular Reference to the Marriage of Baptized Non Believers”, in Marriage
Studies IV: Reflections in Canon Law and Theology, ed. John A. Alesandro (Washington, DC: Canon Law Society of
America, 1990), 66-104 (91).
95 Grocholewski, “Crisis doctrinae et iurisprudentiae rotalis circa exclusionem dignitatis sacramentalis in
contractu matrimoniali”, 293-294.
96 Ibid. 295; translation in Wrenn, “Sacramentality and the Invalidity of Marriage”.
97 Wrenn, “Sacramentality and the Invalidity of Marriage”, 210.
98 The Relatio was published later in Communicationes, volumes 14 (1982), 15 (1983), 16 (1984); cf. Wrenn,
“Sacramentality and the Invalidity of Marriage”, 211.
99 Communicationes 15 (1983), 233; cited in Pothier, On the Sacramentality of Marriage: the Divergence of Canon Law and
Theology and the Inability to Maintain the Presumption of Facere Quod Facit Ecclesia, 28.
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removing the phrase for largely ecumenical reasons, but Archbishop Castillo Lara, secretary to
the commission, followed Grocholewski and argued that the doctrine of inseparability
demanded coherence between the three canons in question,100 and further that this was a
matter of doctrine not simply of law and added, “I believe that theologically the proposed
suppression cannot be admitted.”101 Cardinal Felici intervened with a letter from the Prefect of
the Sacred Congregation for the Doctrine of the Faith, Cardinal Franjo Seper, in which the
Congregatio Plenaria was requested to insert the words “sacramental dignity” into the canons on
error and simulation. Cardinal Felici therefore called for a vote, but Wrenn (2000) notes that,
“before finishing his sentence” Cardinal Felici became aware that Cardinal Joseph Ratzinger,
then Archbishop of Munich, wished to speak. Cardinal Ratzinger noted that there was no strict
doctrinal problem with including the phrase in the canons, as proposed by Cardinal Seper, but
that he believed that it would give the impression of declaring invalid Protestant unions and
making mixed marriages between Catholics and non-Catholics very difficult. Therefore, he
proposed the phrase be included in the canon on error, but not directly in the canon on
simulation, “In this way, said Ratzinger, the doctrine is stated and stated clearly (in the error
canon) but not in an offensive way that would create great difficulties.”102 Then the Congreagatio
voted thirty-nine out of forty-four voted to retain the phrase in the canon on error of law, and
thirty-five voted to delete the words from the canon on simulation. It was, however, understood
to be included in the words “marriage itself ” or “some essential element”.103
It is possible that this debate described above regarding the phrase “sacramental dignity”
in canons 1099 and 1101 §2 of the 1983 Code may seem somewhat irrelevant to the issues
being explored in this article. However, it is vitally important to demonstrate, in one specific
way, the impact that the doctrine of inseparability had in the process of drafting the current law
of the Church. Moreover, in this debate the interplay between pastoral concerns and the
concerns of doctrine and canon law that would eventually lead to a compromise being put into
the law itself can be seen. Since this article concerns the sacramentality of marriages between
the baptised it is precisely relevant to examine how this doctrine is instantiated in the law of the
Church. As a whole this article has described and analysed the content and context of canon
1055 §2, the sacramentality of marriage and the so-called doctrine of inseparability. Canon
1055 §2 excludes the possibility of non-sacramental marriages between the baptised, and this is
not mere positive ecclesiastical law but the doctrine of the Church.

§4. CONCLUSION
It is hoped that the foregoing discussion of canon 1055 and the sacramentality of
marriage will provide a useful background to one of the first things that is stated about
marriage between the baptised: that is a sacrament. To assert the sacramentality of marriage is
not simply a repetition of dogma, but rather a statement of the living theological and canonical
reality in which millions find themselves in. A proper canonical and theological understanding
of the background and implications of the sacramentality must undergird any exploration or
analysis of this sacrament. Failure to understand what it means for canon 1055 to assert that
every marriage between the baptised is a sacrament, and failure to understand the sources and
context of this canon, can only lead to superficiality and error. Whilst it is undoubtedly true
that we may say much more about marriage than that it is a sacrament, if we do not at least
understand what we mean we say that, then our endeavour is doomed form the beginning.

100 These are the canons stating the doctrine of inseparability (CIC17 c. 1012 §2), the canon on error (CIC17 c.
1084) and the canon on simulation (CIC17 c. 1086 §2).
101 Wrenn, “Sacramentality and the Invalidity of Marriage”, 212; citing: Pontificium Consilium de Legum
Textibus Interpretandis, Congregatio Plenaria diebus 20-29 octobris 1981 habita (Rome: Typis Polyglottis Vaticanis,
1991),452-460.
102 Ibid., 214.
103 Ibid.

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