02. The "gift of self" as object of matrimonial consent?

Marriage can evidently be explained only in function of sexual attraction between man and woman. It is equally evident however that this attraction works at a higher level than a merely animal sexual urge (cfr. Insegnamenti di Giovanni Paolo II, II, 2 (1979), p. 1214.). Animals do not marry; only humans do so. Animals mate, usually in a casual and temporal way, simply to satisfy a sexual instinct. The norm for human mating, on the contrary, is permanent and exclusive, with the idea of establishing a family and a home. Behind this one has to see not a mere sexual, but a conjugal, instinct which is the peculiarly human force that spurs men and women to marry. "One should recall the opinion of St. Thomas that man is inclined to marriage by his nature. This is to be understood not only as to the carrying out of the carnal copula, but also to the leading of that common life instituted by divine ordination when God made man male and female. For man is not endowed just with a sexual instinct, but also with those other virtues by which he can perfect conjugal life" (c. Agustoni, May 27, 1980: R.R.Dec., vol. 72, p. 404; cfr. c. Burke, April 19, 1988: vol. 80, p. 251, n. 2; Dec. 6 1989: vol. 81, p. 744, n. 3). Today, more than ever, in studying marriage, it is important not to overlook the presence and peculiarity of this conjugal instinct. If one ignores it, it is easy to conclude that that marriage does not correspond to any requirement or tendency of human nature, but is basically something artificial, a mere conventional way of formalizing sexual companionship - that may appeal to some, but others may just as logically omit or reject.

            Man and woman can be drawn together by a merely physical attraction. If however the attraction between them is of the type that activates the conjugal instinct - which tends towards marriage - it does not logically remain simply on the merely physical level. A relationship normally arises between them that is also and especially affective. Step by step it tends to increase in intensity; the two people concerned feel that they are in love, that they are made for one another; and at some stage they probably get engaged. But, up unto a decisive moment, they can break off the relationship between them. That decisive moment is the exchange of matrimonial consent. Once they consent to marry one another, they introduce a new element into their relationship: that of justice. The former elements drawing them together - attraction, affection, love (or perhaps mere interest) - now coalesce into a juridical commitment and bond. By consenting to be husband and wife, they mutually confer rights and acquire obligations, both due in justice and both of a permanent nature. Canon law pays special attention to these rights and obligations, and to the act of consent from which they derive.

            "Matrimonium facit partium consensus" (Marriage is brought about through the consent of the parties") so says canon 1057 § 1, echoing c. 1081 of the 1017 Code. This age-old principle (Petrus Lombardus: Sententiarum lib. IV, dist. 27, n. 3; S. Thomas: Sent. IV, dist. 27, q. 1, art. 2; dist. 28, a. 4, sol. 1; Suppl., q. 45, art. 1; q. 48, art. 1; S. Bonaventura: In IV, d. 28, a. unicus, q. 6.; etc.) was subjected to some temporary, though scarcely deep questioning, in the immediate post-Vatican II period. The Apostolic Signatura noted the questioning in a Sentence of Nov. 29, 1975, and in rejecting it insisted that the principle remains a "fundamental principle of natural law" ("principium fundamentale iuris naturale": Periodica, 66 (1977), 301.). The new Code seemed to close what remained of the brief debate with its simple restatement of the principle.

            Since marriage constitutes a man and a woman in a permanent and totally unique interpersonal relationship, it is clear that nothing but the free consent of each one suffices to establish it. And so canon 1057 goes on to say that no human power can take the place of personal consent. Consent, therefore, in which is to be found the causal efficacy of the conjugal alliance, is central to any juridical consideration of matrimony. We can examine it from one of two angles:

            - the person who consents (the subject), looking specially to his or her capacity, knowledge, freedom, etc. The person must freely want to consent, and must be capable of doing so.

            - what he or she consents to (the object). What the person consents to must truly be marriage.

            It is the latter - the object of matrimonial consent - that concerns us here. If marriage is a free agreement between a man and a womna, what is it that they agree to?

            What do the spouses consent to? Obviously they consent to marry, and to marry a particular person. In this sense, the object of matrimonial consent is marriage itself: "I consent to marriage with this particular person".

            St Thomas in fact begins his analysis of consent affirming that "the consent which makes marriage, is consent to marriage" ("consensus qui matrimonium facit, est consensus in matrimonium": Suppl., q. 48, art. 1.). But after this affirmation of what is obvious, he goes on in his habitual fashion to deepen his analysis. We also feel the need to go deeper. For, after all, to say that the object of matrimonial consent is marriage itself is not very enlightening from a juridic viewpoint which is mainly concerned to analyse the conjugal commitment so as to see what it essentially involves, and in particular to see what specific, and above all essential, rights and obligations consent gives rise to.

            This is not a question of merely speculative interest. It is of the utmost ecclesial and pastoral concern. Marriage after all is a matter of vital importance for the good of individuals and of society. People thinking of marriage need to know and weigh the rights and obligations it involves, so that they either accept them as part of marriage, or else do not marry because they are not prepared to accept them. After all, if they do go through a form of marriage without accepting them, then of course we have a case of nullity on our hands.

            Our task, then, is to determine: when a person marries, what does he or she bind himself or herself to do? What is the object of his or her consent, regarded above all from the angle of the essential rights and obligations (i.e. those that can be the object of legal claims) which derive from it?

1917 and 1983

            The differences between the pio-benedictine Code of Canon Law and the 1983 Code are especially striking in the area of our study. Canon 1057 of the new Code corresponds to can. 1081 of the old. Completing the first paragraphs, we read: "Marriage is brought about through the consent of the parties, legitimately manifested between persons who are capable according to law of giving consent; no human power can replace this consent" ("Matrimonium facit partium consensus inter personas iure habiles legitime manifestatus, qui nulla humana potestate suppleri valet".).

            While this paragraph is identical in each case, paragraph two in its 1983 version would seem to mark one of the most important changes in the whole of matrimonial law.

            The old Code was cut and dried on our topic: matrimonial consent involves, above all, the exchange of one concrete right: "Matrimonial consent is the act of the will by which each party gives and accepts a perpetual and a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" ("Consensus matrimonialis est actus voluntatis quo utraque pars tradit et acceptat ius in corpus, perpetuum et exclusivum, in ordine ad actos per se aptos ad prolis generationem": c. 1081, § 2.).

            Canon 1057, § 2 of the present Code specifies the object of marriage consent in different terms: "Matrimonial consent is an 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 marriage" ("Consensus matrimonialis est actus voluntatis, quo vir et mulier foedere irrevocabili sese mutuo tradunt et accipiunt ad constituendum matrimonium".). Thus marriage appears as the consequence of the reciprocal gift of self, which would be the object of consent.

            Therefore in the 1917 Code, consent involved a "traditio iuris": the granting of an essential right - the "ius in corpus"... In the 1983 Code, consent involves rather a "traditio suiipsius". Now the object is the gift of one's self. We are thus faced with two formulations of the object of matrimonial consent that seem strikingly different - so much so that it is hard to discover any relationship, any logical connection, or any evident point of development between the two. And yet, as we know, science seldom proceeds by total ruptures with the past. True progress - in canonical science no less than in other fields - usually shows many points of continuity with what has gone before. It is something we would do well to remember in pursuing our present subject.

            Let us make some preliminary comments on these two different formulations. As object of matrimonial consent, the "ius in corpus" possessed a very well defined juridic content, and the rights and duties it led to were quite clear. This of course was the natural result of decades of attentive consideration in jurisprudence and doctrine.

            The juridic concept of the "ius in corpus" was therefore precise. To many persons it also appeared as very poor, suggesting an exclusively corporal and biological view of conjugal sexuality. The object of consent seems to be reduced to the right to the physical act of intercourse.

            The concept of self-giving ("traditio suiipsius") is much richer and, in the line of the personalism of Vatican II, seems to suggest an understanding of marriage closer to its human reality, concretely to the desire for self-donation characteristic of the conjugal instinct. The older formula objectivised the other spouse: it seemed to be his or her body alone that was the object of consent. The new formula brings out that it is in their own very persons that the spouses pledge themselves to one another. In line with the personalism of Vatican II, it seems to offer a view of marriage that is closer to its human reality, and concretely to the desire for self-gift that is characteristic of the conjugal instinct.

            However, the precise juridical significance and content of this formulation are by no means immediately clear - which is logical enough since we are still in the initial stages of its analysis.

            It can come as no surprise therefore to find that the new formula has provoked diverse reactions and criticisms. On the rotal level, some judges at times give the impression that they see no substantial difference in the new formula, and continue to define the object of consent in terms of c. 1081, § 2 of the 1917 Code. We read for instance, "Matrimonial consent is the act of the will whereby the parties mutually give and accept a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (c. Fiore, Dec. 4, 1984, R.R.Dec., p. 593; cfr. c. Huot, June 26, 1984, ib. vol. 76, p. 433; July 26, 1984, ibid. p. 500; Decree c. Masala, March 5, 1985, n. 5; c. Funghini, April 17, 1991, vol. 83, p. 249). A Sentence coram Huot of May 2, 1985 insists that the formula of c. 1081, § 2 of the old Code "is substantially renewed in the new" (vol. 77, p. 225). Another decision, coram Agustoni, of Oct. 15, 1985, citing the old formula, comments: "The new Code contracted the way of expressing things, but did not change the object of consent, nor could it change since it is a question of a covenant based on natural law" (vol. 77, p. 437; cfr. c. Di Felice, Nov. 8, 1986, vol. 78, p. 599.). The same basic line, although with some enrichment, seems to be followed by the principle offered by a more recent sentence: "The formal and substantial object of matrimonial consent is above all and necessarily the perpetual and exclusive right over the body with regard to acts apt in themselves for the generation of offspring, the right to the consortium and communion of the whole of life, by which the conjugal state is created and the good of the spouses obtained, with due observance of fidelity and the perpetuity of the bond" (c. Funghini, Nov. 8, 1989: vol. 81, p. 659).

            Others go to different extremes. One Sentence seems to reject totally the concept of "giving oneself" as being juridically meaningless: "In fact, as is evident to all, no one disposes of himself to the extent that he can juridically give himself to another, and much less can someone juridically accept another as his own" (c. Egan, March 29, 1984, vol. 76, p. 205). Another appears to assign no apparent limit to the extent of the matrimonial self-gift: "Matrimony is indeed the mutual, full and perfect [self-]donation of the contracting parties" (c. Bruno, Dec. 17, 1982, vol. 74, p. 648). Again we are told that consent requires "the donation of persons in their intimate structure and interior truth... [Whoever consents to marriage] must give himself or herself fully and completely to the other spouse" (c. Di Felice, Jan. 14, 1978: vol. 70, p. 17).

            Still others, preferring to depart from any parallel analysis between the 1917 and the 1983 formulations, seem to ignore the phrase "mutually give and accept each other" and see the object of matrimonial consent in the finality of this "self-giving": the "establishment of matrimony" (cfr. c. De Lanversin, Feb. 28, 1984, vol. 76, p. 146, n. 6; cfr. c. Pompedda, Dec. 4, 1984, ibid. p. 573: "consensus obiectum, quod est constituendum matrimonium (cfr. can. 1057, § 2)").. So we read: "The material object [of consent]... is no longer the ius in corpus but it is the establishment of matrimony" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in AA.VV. Incapacity for Marriage, P.U.G., Rome 1987, p. 183.). This makes the object of consent not what the spouses exchange, but the finality of this exchange: the "consortium totius vitae" of c. 1055, § 1. It seems to bypass the analysis of the "se tradere".

            It is hard not find something of a tautology in such approaches ("the object of matrimonial consent is the establishment of matrimony"), which doubtfully offers a real analysis of the question. The recourse of drawing the object of consent ultimately from c. 1055, § 1, rather than from a deeper examination of c. 1057, § 2, suggests a reluctance to embark on the personalist-juridic analysis that the deliberate formulation of c. 1057, § 2 logically calls for. But such an analysis must surely be attempted. Just as St. Thomas first says that 'matrimonial consent means consent to matrimony', and then goes on to a more precise analysis, we too must seek to progress from the general and obvious, to the more subtle but essential content that lies beneath.

            If we wish to determine the content of the expression - "sese mutuo tradunt et accipiunt" - , it would be helpful to turn to Gaudium et Spes, 48, whence it has been taken. We are there told that it is "from the human act by which the partners mutually give and accept one another" that the institution of marriage receives its stability, confirmed by divine law ("...actu humano, quo coniuges sese mutuo tradunt atque accipiunt, institutum ordinatione divina firmum oritur".). Gaudium et Spes, it must be remembered, is a pastoral constitution and not a juridical document (cfr. Sentence of the Signatura Apostolica of Nov. 29, 1975, coram Staffa: Periodica, 66 (1977) 305.); and no doubt the conciliar fathers (at least the canonists among them) were aware that time would be necessary to establish the juridical value to be attributed to the phrase, "sese tradunt", so filled with personalist overtones. However, taking the conciliar text as it is, the simple answer to the question what is the object of matrimonial consent understood in this formula, seems to be that it is the spouses themselves (In the Sentence just mentioned, the Signatura, commenting Gaudium et Spes 48, says "obiectum consensus declaratur esse coniuges ipsos": ibid. 306); and that, with regards to the rights/duties deriving from consent so understood, each spouse has the right to receive the gift of the other's self, and the duty to give his or her own self in return.

            However it may be rightly objected that this simple reply is also to say what is obvious, and marks no real advance in our study. One can certainly wonder whether the concept of the "donum suiipsius" is susceptible of an adequate analysis for canonical praxis. Does such a concept permit us to specify, in juridical terms, the content of marital rights and duties? Therein lies the whole of the problem.

            The fact is that the notion of a "gift of oneself" or of the "mutual donation of persons", is not really as simple as it seems. "Traditio suiipsius" or "donatio personarum" (cfr. c. Pompedda, July 3, 1979, vol. 71, 388, n. 17; c. Raad, April 14, 1975, vol. 67, p. 240, n. 7.), are clearly concepts not to be understood in a wholly literal sense (cfr. c. Pinto, May 31, 1985, vol. 77, p. 281.). A Sentence coram Pinto, of May 31, 1985, insists on this point. Referring to the formula of Gaudium et Spes - "sese mutuo tradunt at accipiunt" - now incorporated into can. 1057, § 2, he observes: "this formula in no way implies that the formal and essential object of consent is no longer the essential matrimonial rights and duties given and accepted, but rather the persons themselves... From what we have said it is clear that we cannot agree with the sentence under appeal when it states that the object of consent has been changed inasmuch as it would no longer be rights and duties, but the very persons of the spouses" [1].

            The reason is clear. A true gift implies the transfer, from the giver to the receiver, of ownership of what is given. But it is obvious that each spouse does not transfer ownership of his or her person to the other (John Paul II insists on the impossibility "of one person's appropriating and taking possession of another" Insegnamenti di Giovanni Paolo II, VII,1 (1984), 1617.). Such a transfer would in fact be impossible because no one is absolute "owner" of his or her person or "self". Similarly, the spouse receiving the conjugal gift does not become owner of the "self" of the other, entitled to dispose of it as he or she wishes. No spouse owns the other: not the "self" of the other, not even the body of the other.

            Working within the terms of the law in force up to 1983, jurisprudence was careful not to speak of a "traditio corporis" - a handing over of the body - , but of a "traditio iuris" - a handing over of a right, specifically of a "ius in corpus", a right over the body. The moralist, D'Annibale, expressed the reason clearly: "through marriage one does not come to possess the body of one's spouse, in the sense of owning it; one acquires a right of use in its regard" ("per matrimonium, non corpus alterius acquiritur, quod esset dominium acquirere, sed ius eius utendi" Summ. Theol. Mor., Roma, 1908, vol. III, p. 368): cfr. St. Thomas: "vir per matrimonium non dat sui corporis potestatem uxori quantum ad omnia, sed solum quantum ad illa quae matrimonium requirit" (Suppl., q. 65, art. 2 ad 6).

            For these reasons there seems to be a lack of juridic precision in affirmations such as: "conjugal love is true when it is total, with the perpetual donation of soul and body" ("Adest verus amor coniugalis... [cum sit] totalis cum perpetua donatione animae et corporis...": c. Bruno, July 19, 1991: R.R.Dec., vol. 83, p. 466...). If by marriage one spouse does not become owner of the body of the other, less still does he or she acquire ownership of the other's person (cfr. St. Thomas: "one spouse is not obliged to the other as his or her possession, but in virtue of a definite partnership" ("unus coniugum non obligatur alteri quasi possessio eius... sed per modum societatis cuiusdam"): Suppl., q. 59, art. 4 ad 1).). It would seem therefore that the notion of the "traditio personarum" needs to be juridically refined into that of the handing over of a "ius in personam": a right over some personal element so proper to the individual, so "representative" of him or her, that its "traditio/acceptatio" constitutes the conjugal gift of self measurable in juridical terms.

            Urbano Navarrette affirms that "the proposition 'coniuges sese mutuo tradunt atque accipiunt', can be accepted only if it is referred to a specified gift and acceptance, since it is repugnant to the autonomy and dignity of the human person to be the object of a simple donation. The donation of one's person necessarily affects only the person's activity but not the person himself. And not even all of a person's activity can be the object of a gift, since there are areas of one's own activity that are absolutely untransferable, for instance, activity concerning one's religious duties. The object of mutual donation is necessarily limited to certain actions and undertakings of the person, even if, in the case of the donation proper to the conjugal pact, these touch the most intimate and vital areas of the person and in a certain way pledge the whole life of the spouses" ("Consenso Matrimoniale e Amore Coniugale", in AA.VV. L'Amore Coniugale, Lib. Ed. Vaticana, 1971, p. 211.). In this line we cannot consider acceptable the formula proposed by S. Lener in the same work - "ius ad personam coniugis" ("L'Oggetto del Consenso e l'Amore nel Matrimonio"; in op. cit. L'Amore Coniugale, p. 257.) - but a "ius in personam" (cfr. Rinaldo Bertolino: Matrimonio Canonico e 'Bonum Coniugum' (Giappichelli, Torino, 1995), pp. 103ss).

            What would such a "right over the person" involve? This is the analysis to which we are called. I feel that by pursuit of this line of investigation, we can achieve an understanding and expression of the object of marital consent, firmly rooted in the married personalism of Vatican II and marked at the same time by strong links of continuity with the salient features of traditional thinking on this matter.

            In trying to determine what this right includes, one must be clear both about what a "gift" is and about what "conjugality" means. "Gift" implies a definitive and permanent donation of something, with a concession of proprietary rights. If no proprietary right is transferred, one is dealing with a simple loan, rather than a gift.

            "Conjugality" implies a relationship between a man and a woman that, along with being permanent, is exclusive: on a "one-to-one" basis (the same gift cannot be made to several persons at the same time). It is clear however that two persons could enter on an exclusive and permanent relationship (e.g. of friendship), without this being conjugal. Conjugality calls for another specific element, which is that of sexuality. The conjugal gift of self must have the effect of establishing an exclusive, permanent and sexual relationship. And yet our list is not yet exhausted; two further elements must be added. The conjugal relationship must be open to the procreative possibilities of sexuality; and (also precisely as consequence of this) it must be heterosexual, that is between man and woman.

            These last two points have become particularly important today, because of claims to the legitimacy both of non-procreative conjugality and (more recently) of homosexual "marriages". Both claims, it should be noted, are made in the name of a new and more personalist understanding of sexuality; and they are not unrelated. If the argument is legitimate that there can be a true marital relationship between a man and a woman, without any necessary reference to the procreative aspect of their sexual complementarity, it is hard to see what cogent objections can be offered to the argument that an active homosexual relationship can be established on a valid "marital" basis of similar self-giving.

            It would then seem that the first step we must take in analyzing the conjugal self-gift - so as more precisely to determine its object and the rights/duties deriving from it - is to examine the relation between conjugality and procreativity: between the conjugal self-gift and open-to-life sexuality.


[1] "quae formula... minime implicat consensus obiectum formale et essentiale iam non esse iura et officia matrimonialia essentialia tradita et accepta, sed potius personas ipsas... Ex dictis apparet nos concordare non posse cum sententia appellata cum affirmat consensus obiectum mutatum fuisse quatenus iam non essent iura et oficia, sed coniugum personae ipsae": vol. 77, p. 281. Msgr. Anné seemed earlier to open up an interesting avenue when he wrote: "the 'mutual donation of persons' and other such phrases which occur either in Gaudium et Spes or in Humanae Vitae, are more correctly interpreted as the 'giving and accepting of the right to the partnership of life'..." ("'mutua personarum donatio' similesque locutiones, quae occurrunt sive in Const. Gaudium et spes, sive in Litt. Encycl. Humanae vitae, rectius interpretantur uti 'traditio et acceptatio iuris ad... vitae consortium'...": Apr. 26, 1977: R.R.Dec., vol. 69, p. 222). But he did not follow up with the essential analysis of this 'consortium vitae'.