07. The Object of Consent and the Ends of Marriage

            Matrimonial consent indeed confers a fundamental and constitutional right to marriage with its essential properties. But it confers no such equivalent right to the achievement of the ends of marriage. Each spouse can claim as a right the acceptance of marriage, in its essential integrity, by the other. Neither can claim the end of marriage as a right.

            Regarding the procreational end of matrimony, jurisprudence holds that marital consent involves the giving/accepting of the right to the "bonum prolis", a right, that is, to physical actions ordered to procreation, as well as to a positive mental disposition in its regard. In fact, it is generally accepted that conjugal consent involves the exchange of a right/obligation not only to conjugal acts open to life, but also to the acceptance of offspring that may in fact be conceived from these acts (cfr. c. Bejan, Nov. 9, 1961: vol. 53, p. 496; c. De Jorio, Dec. 18, 1963: vol. 55, p. 911; Feb. 19, 1966: vol. 58, p. 97; c. Pinto, Nov. 12, 1973, vol. 65, 726-727; c. Stankiewicz, July 29, 1980, vol. 72, p. 562, etc.).

            Here there is need to maintain great precision in the ideas and terminology used. There is a "ius ad bonum prolis". There is no "ius ad prolem", although some careless jurisprudence has at times spoken of it. "The marriage contract does not confer this right [to have a child], because its object is not "the child", but those 'natural acts' which are apt to engender a new life and have that scope" (Pius XII, Address, May 19, 1956: AAS 48 (1956), 471). "The child is not something due, and cannot be regarded as an object of ownership. It is rather a gift, the "greatest" gift of marriage and the one that is most freely given" (Congregation for the Doctrine of the Faith: Instruction on Respect for Human Life, 1987, no. II, B. 8. cf. Catechism of the Catholic Church, no. 2378). It would seem in consequence that one cannot properly speak either of a right to the "good of the spouses", that other end to which, according to c. 1055, § 1, marriage is ordered. But since the "bonum coniugum" merits deeper consideration, this can be better done in a chapter apart.

            As we read in a Sentence coram Raad of April 14, 1975: "one must point out that the ends of matrimony or of the contracting parties, do not constitute essential elements of the object of consent, as some authors and judges think. They argue that whoever is incapable of the end, is incapable of entering matrimony and eliciting valid consent. To refute this theory it is enough to recall can. 1068 § 2: "Sterility neither invalidates nor prohibits marriage". What is said of the principal end of matrimony, can be said a fortiori of the other ends" (R.R.Dec., vol. 67, p. 243). Similarly we read in a more recent Sentence coram Pompedda: "videtur matrimonii vel contrahentis fines non constituere elementa essentialia consensus" (Apr. 11, 1988: R.R.Dec., vol. 80, p. 200).

            In effect, while marriage as an institution tends to definite ends, and the spouses must accept the constitutive elements which are directed to those ends, therre are no grounds for saying that they must have an effective capacity to achieve the ends. Regarding procreation, this is quite clear. There is no absolute or essential juridic obligation to procreate. A valid marriage can exist even though actual procreation is excluded. Pius XII taught that, given sufficient reason and as long as the "ius in corpus" is handed over, spouses could be justified in avoiding procreation even for the whole duration of marriage ("Serious motives can exempt from that obligatory and positive mission ["of providing for the conservation of mankind"] even for a long period, even indeed for the entire duration of the marriage...": AAS 43 (1951), 846.).

            Since the ends of marriage fall outside its essence, I do not think it is correct to wish to determine essential rights/obligations in function of those ends; they must be determined rather in function of the essence, and its essential properties (which do enter the essence, inasmuch as they describe aspects of the essence). No one can claim - as something due to him from another - what is not properly or fully within the power of that other to grant. We repeat, therefore: while each party has the right that the other accept marriage in its essential integrity (with its essential properties), neither can claim the end(s) of marriage as a right.

            If actual procreation is not an essential obligation of matrimony, does the same not hold good, a fortiori, for the education of offspring? Personally I tend to agree with the view that regards education of children as an obligation rooted directly in paternity rather than in matrimony. It is certainly a common opinion that the education of children is an effect of marriage, rather than one of its essential obligations (cfr. G. Barberini: "Sull'applicabilità del can. 1095 al tossicodependente" Il Diritto Ecclesiastico 96 (1985), p. 164.). However that may be, it is certainly difficult to give a juridic measure for the extent of this obligation. There are other difficulties: would one, for instance, hold that a man under sentence of death, or suffering from a terminal illness from which he will surely die within a few months, cannot give valid consent because he will be incapable of participating in the education of any child born of this brief conjugal union?

The "bonum coniugum" [2]

            Now we can turn our attention to the "good of the spouses", which c. 1055 presents as the other end of matrimony, on an equal footing with the procreation/education of children. If we follow the logic indicated above, it seems that one ought not properly speak of a right to the "bonum coniugum" (Although Hervada maintains the contrary, he finds a certain difficulty in assigning a juridic category to the "bonum coniugum", in the sense in which he understands it: "Obligaciones esenciales..." loc. cit., pp. 31-39.). But, before we examine this question - whether the "bonum coniugum" gives rise to any essential and constitutive right/obligation, deriving from matrimonial consent and distinct from those essential r/o we have established - our first concern should be to establish the juridic content of the "bonum coniugum" itself. This is all the more necessary in that while we are obviously dealing with a term of the greatest practical importance (inasmuch as it is used in the 1983 Code to describe one of the ends of marriage), the term itself, as can be seen from its history, is quite new in juridical usage.

            Until the preparatory work for the post-Vatican II Code began, the expression "bonum coniugum" is seldom to be found in canonical writing or in magisterial documents. In 1977 it was accepted by the Pontifical Commission for the new Code into the draft of what was to become canon 1055. The Consultors of the Commission, however, gave no indication of its exact meaning, beyond the fact that it was regarded as expressing the "personal end" of marriage (cfr. Communicationes, 1977, p. 123.), to be taken (as was later clarified) in the objective sense of a "finis operis", and not in a subjective sense of a simple "finis operantis" (ib. 1983, 221.). Its legal standing was in any case confirmed by its incorporation into the description of matrimony given by can. 1055. The term nevertheless is mentioned rather rarely in rotal jurisprudence of the following years (see, for instance, c. Pinto, December 18, 1979, Feb. 12, 1982, November 9, 1984; c. Giannecchini, June 22, 1984; c. Stankiewicz, Jan. 28, 1985; c. Pompedda, Jan. 29, 1985; c. Huot, Oct. 2, 1986; c. Bruno, Feb. 23, 1990; c. Colagiovanni, April 23, 1991.), and very little attempt is made to analyze its juridical content (cfr. C. Burke: op. cit. The Jurist, vol. 49 (1989:2), pp. 704ss.).

            It is important to establish how this term fits into the traditional scheme that distinguishes between essence, properties and ends of marriage. Some have suggested that the "bonum coniugum" is a fourth "bonum matrimoniale", to be ranged along with the traditional three "bona" that were first formulated by St. Augustine (See Sentence c. Pinto, of May 27, 1983, (Monitor Ecclesiasticus, 1985, pp. 329-330). See also Wrenn, Lawrence G.: "Refining the Essence of Marriage", The Jurist, 46 (1986) 2, p. 536.). This would clearly place it in the line of a property of marriage.

            This does not stand up to analysis. It is particularly important here not to let the similarity of terms confound our juridical perceptions. In the augustinian view, the three "bona" refer to "goods" of the married state: they are positive features of matrimony that give it dignity. Marriage is good because it is characterized by faithfulness, permanence and fruitfulness. Each "bonum" is predicated of or attributed to marriage. Offspring is a "bonum matrimonii" and so is exclusiveness or permanence. It is evident then that St. Augustine is speaking of the values or essential properties of marriage, not therefore of its ends or finalities.

            It helps if we present this schematically:

            - bonum fidei: "fides" is a "bonum" or attribute of matrimony;

            - bonum prolis:"proles" ("in suis principiis"; i.e. procreativity.) is a "bonum" or attribute of matrimony;

            - bonum sacramenti: indissolubility is similarly a "bonum" or attribute of matrimony.

            Here we immediately see that we cannot proceed to add the "bonum coniugum" to this list; it would make no sense to say that "coniuges" - the spouses - are a "bonum" of matrimony. The fact is that the term "bonum coniugum" does not express a value or property or attribute of marriage, in any sense parallel to that of the augustinian "goods". The "bonum" of this new term is referred not to marriage (as if it were a value that makes marriage good), but to the spouses (as involving something that is good for them); it denotes not a property of marriage (a "bonum matrimonii"), but something - the "good" or welfare of the spouses - which marriage should cause or lead to. It seems obvious, then, that the "bonum coniugum" is in the line not of property ("The bonum coniugum", says F. Bersini, "has nothing to do with the augustinian bona": Il Nuovo Diritto Canonico Matrimoniale, Turin, 1985, p. 10.) but of finality. Matrimony, which is an institution characterized by exclusivity, permanence and procreativity, tends to the good of the spouses just as it tends to the actual procreation of offspring. It is striking in fact that doubt should arise about this, since it is quite clearly expressed by canon 1055: "the matrimonial covenant ... is by its nature ordered toward the good of the spouses and toward the procreation and education of offspring". And the ordination spoken of here is an ordination to the natural and inherents ends of matrimony.

            It should be obvious also from what we said in the last chapter that to make the "bonum coniugum" coincide with marital love is untenable. Love is not so much a constitutive part of the "bonum coniugum" as a factor which, if properly lived, tends to the good of the spouses. Marriage, after all, is normally the consequence of love, hence it appears as a motive as much at least as an end of matrimony. Further, love and marriage are in the same operative order, as being directed to the same ends. Gaudium et Spes said so in relation to procreation: "By its very nature the institution of marriage and married love is ordered to the procreation and education of children..."; "Marriage and married love are by nature ordered to the procreation and education of children" (nos. 48; 50). Subsequent magisterium, particularly in the formulation of canon 1055, seems to give good grounds to amplify these affirmations of Gaudium et Spes, in the sense that marriage and married love are ordered to the "good of the spouses" - the other institutional end of matrimony - no less than to procreation.

The juridic content of the "bonum coniugum"

            Regarding the juridic content of the "bonum coniugum", we could here suggest some partial and tentative ideas (cfr. sent. c. Burke of Nov. 26, 1992: Ephemerides Iuris Canonici, XLIX 1993 (1-3), pp. 303-312.).

            A Sentence coram Pinto, of Dec. 18, 1979, referring to the good of "the spouse" as the so-called personal secondary end of matrimony, suggested that the rights/obligations which make up this good "are referred to in the [1917] Code as the 'mutual aid and the remedy of concupiscence', and in the draft for the new Code of marriage law as the 'right to the communion of life' which comprises those rights that pertain to the essential interpersonal relations of the spouses" (R.R.Dec., vol. 71, p. 588). Along rather similar lines, a sentence c. Pompedda of April 11, 1988 holds it necessary that the "good of the spouses - of which alone the Code speaks, making no further reference to the right to communion of life - is to be understood and brought about through the right (and corresponding obligation) to the communion of life: the latter being understood in its broader meaning, ideally inspired by [? "ad"] that conjugal love on which the Second Vatican Counsil so insisted, and juridically expressed through the rights/obligations affecting that distinctive behavior which flows as requisite and sufficient from the very nature of marriage, in the interpersonal relations proper to the spouses and having juridic importance" (vol. 80, p. 202). Another sentence places the "bonum coniugum" in the constitution of "the community of life and love" (c. Colagiovanni, Apr. 23, 1991, Romana, n. 10.).

            We have already recalled that the proposal of a "ius ad vitae communionem" was not accepted into the new Code, being considered redundant, that is equivalent to a "ius ad matrimonium ipsum". It therefore does not seem that a juridic analysis of this "right" can yield new essential rights/ obligations that derive from consent. To simply state that this "right" embraces those which affect "essential interpersonal relations" does not provide any deeper jurisprudential insight - unless one specifies which interpersonal relations (beyond those included in the three "bona") are juridically essential to marriage: a specification which has not yet been achieved

            Some sentences of Pinto offer another specification which seems lacking in depth. Once again using a peculiar singular ("bonum coniugis"), he makes it consist in a mutual psycho-sexual "integration" ("bonum coniugis, in mutua essentiali integratione psycho-sexuali consistens...": Feb. 12, 1982: R.R.Dec., vol. 74, p. 67.). Elsewhere, placing the bonum coniugum among the essential obligations of marriage, he describes it as "intimate union of persons and deeds by which the spouses find that psycho-sexual complementarity without which the "consortium" of matrimonial life could not exist" (Feb. 20, 1987: Ius Ecclesiae, 1-2 (1989), p. 573); or, he says, it consists in the right of each spouse to find in the other "his or her specific psychological psycho-sexual complement of a true spouse" (May 27, 1983: Monitor Ecclesiasticus 110 (1985-III), p. 329). This is surely to assign a very circumscribed and passing scope - the attaining of a relative complementarity - to the good that marriage should originate for husband and wife.

            Another opinion would relate the "bonum coniugum" to the achievement of at least a minimum degree of satisfactory personal relationship between the spouses: "the good of the spouses, which is an essential element of matrimony, implying the capacity of fashioning at least a tolerable interpersonal relationship with one's future spouse" (c. Bruno: Feb. 23, 1990, R.R.Dec. vol. 82, p. 140); this again does not seem to be a sufficient analysis.

            Some maintain that the former secondary ends of matrimony, - "mutual aid" and "remedy of concupiscence" - which find no mention in the Code, are contained in the "bonum coniugum" ["The "remedium concupiscentiae" and the "mutuum adiutorium" are now included in the "bonum coniugum"...": F. Bersini, op. cit., p. 18; cfr. David E. Fellhauser: "The consortium omnis vitae as a Juridical Element of Marriage", Studia Canonica 13 (1979), pp. 50-54]. I prefer to think that we have abandoned the concept of the "remedium concupiscentiae"; and that the "bonum coniugum" is in fact much broader than the "mutuum adiutorium" (cfr. C. Burke: "Marriage: a personalist or an institutional understanding?" Communio, 1992-2, pp. 294-296.).

            Since, as we have already mentioned, we have to deal here with a new concept in canonical usage, the effort to establish its juridic meaning and content (a task of the greatest importance) needs in the first place to give due attention to the sources (or "Fontes") indicated in the 1989 annotated edition of the Code (Libreria Editrice Vaticana, 1989.). Among the sources Casti connubii is first noted; and also several magisterial documents of Pius XII among them the Address of October 29, 1951 where the Pope spoke of the "personal perfectioning of the spouses" as a [secondary] end of matrimony (AAS 43 (1951), 848-849.). As is natural, Gaudium et Spes, no. 48 is cited as another soures, and also nos. 11 and 41 of Lumen Gentium as well as no. 11 of Apostolicam Actuositatem. Gaudium et Spes speaks in terms of the human and supernatural growth of the spouses: "Husband and wife ... help and serve each other by their married partnership; they become conscious of their unity and experience it more deeply from day to day ... Fulfilling their conjugal and family role... they increasingly further their own perfection and their mutual sanctification". Lumen Gentium, especially in no. 11, insists on the supernatural aspect of this reality: "Christian spouses help one another to attain holiness in their married life and in the accepting and rearing of their children"; and the Decree on the Apostolate of Lay People does the same: "Christian spouses are for each other... cooperators of grace and witnesses of the faith".

The essence of the "bonum coniugum"

            As regards the essence of the "good of the spouses", my opinion therefore is that one must seem it in the line of the maturing of the spouses (cfr. Rinaldo Bertolino: op. cit., pp. 119ss.), for this life and for the life that is to come; that is (to follow the words of Casti connubii, their "mutual interior formation", their "constant concern to help one another mutually towards perfection" (AAS 22 (1930), 548.).

            Therefore the idea of making the "good of the spouse" consist in a mere characterial "compatibility" between the spouses (The already mentioned sentence of Msgr. Pinto of Feb 20, 1987 seems to over-limit the scope of the "bonum coniugum" by defining it in terms of mutual complementarity, and not in function of the deeper and ultimate object of human existence.), or in the achievement of a comfortable conjugal life, untroubled by any tensions, scarcely seems to be in harmony with a christian understanding of the real good of the spouses. There is more to be said for a line of analysis that harmonizes the "bonum coniugum" with the demands of the reciprocal self-gift that is faithful, permanent and open-to-life. Such an approach also frees the "good of the spouses" from anthropologically narrow interpretations that tend to consider it from an over-subjective and individualist point of view.

            The "bonum coniugum" in its most objective sense is in fact furthered by the efforts of the spouses to live their mutual matrimonial commitment in full conjugal fidelity, to love each other perseveringly all the days of their lives, with the demanding generosity involved in this dedication to one another and to the children that God has sent them.

            As should be evident, the bonum coniugum "is achieved not only through the consolations of married life, but also and especially through its demands. In this way we see how the "bonum coniugum" (an end of marriage) connects naturally with the augustinian "bona" (properties of marriage). In fact it seems correct to say that, more than anything else in marriage, acceptance of those traditional "goods" and respect for the obligations they involve, creates the conditions that favor the good of the spouses. One can therefore conclude that the augustinian bona which fundamentally characterize marriage, also provide the basic structure on which the "bonum coniugum" can be built" (Sent. Nov. 26, 1992 coram Burke, in una Armachana, n. 13).

            Gaudium et Spes, in keeping with Casti connubii, teaches that indissolubility favors the "bonum coniugum"[1]; the point of this surely being that all the effort and sacrifice involved in being faithful to the unbreakable character of the bond - in good times and in bad, etc. - serves to develop and perfect the personalities of the spouses. Mention has already been made of Paul VI's incisive teaching as to how God has endowed marriage with "its own laws, which spouses are normally very happy to acknowledge and value, but which in any case they should accept for their own good" (AAS 68 (1976), 207.). And John Paul II, also speaking to the Roman Rota, has made the point that in any christian understanding, "it is possible to fulfil the meaning of the conjugal union, expressed in the reciprocal donation of the spouses, only through a continuous effort that includes renunciation and sacrifice" (AAS 79 (1987), 1456.).

            In practice, the crises through which all marriages pass can be overcome only if the spouses attain a proper understanding of the true nature of their "good" - the "bonum coniugum" - and the latter's intimate dependence on the nature and demands of the three agustinina "bona".

            The danger of applying reductive criteria to the "bonum coniugum" becomes more apparent if one considers the case where someone loves and chooses to marry a totally handicapped and disabled person, who is incapable of working and earning a living, or of even minimally taking care of himself or herself. No one would deny the right of a person to make such a marital choice. Yet it could be asked: what material contribution will the disabled individual be able to make to the "good of the spouses"? None, it might be answered for it is clear that, materially, he or she is going to be a burden to the other spouse. Yet again who would assert that he or she cannot contribute spiritually (with a contribution whose value escapes human or legal measurement) to that good? Equality of physical burdens or of material contributions within married life cannot in fact be made main parameters of the "bonum coniugum", since it is not adequately defined in material or economic terms, or capacity for work or for earning one's own living, etc.

The relationship between the good of the spouses and procreation

            Gaudium et Spes itself establishes a direct connection between the "bonum prolis" and the "bonum coniugum" when it states that "children greatly contribute to the good of their parents" (no. 50). Children enrich their parents' lives in many ways, above all through the generous dedication they tend to evoke in them.

            The personalism of open-to-life intercourse, as we saw in an earlier chapter, unites the spouses in a singular fashion. No obstacle being placed to the genuine union of their complementary sexuality, such personalism leads to a true deepening of community between husband and wife and furthers their "good". Contraceptive intercourse is fraught with an individualism that separates husband and wife and frustrates the authentic "bonum coniugum".

            In considering the conjugal act through which the spouses become "one flesh", we sought to make a deeper analysis of that fundamental truth asserted by Paul VI in Humanae Vitae: that it is not licit to separate the unitive and the procreative aspects of the act. True christian personalism leads to a similar conclusion as regards the instituzional ends of matrimony: the "bonum coniugum" amd the procreation-education of children. There is a natural and intrinsic connection also between these two ends; they are intimately interconnected, and the pursuit of one should help the attainment of the other, by which it is at one and the same time conditioned and served (cfr. "Marriage: a personalist or an institutional understanding?": Communio 1992-III, pp. 301-303.).

            The desire for self-realization, just as that for self-perpetuation, are common to almost all persons. While these yearnings undoubtedly carry with them strong personalist overtones, it is also true that the personalism they involve is often threatened by simple self-centeredness. One notes the particularity in the conjugal act that, while it tends in a special way to self-affirmation and self-perpetuation, these tendencies are raised to a higher level by the generous and oblative nature of the act. The act does not tend to the affirmation or perpetuation of each of the spouses's "self" considered in isolation, but precisely to the perpetuation of something common to both together and absolutely intimate to them: the love which unites and binds them. The union of their two "I"s in "one flesh", by means of the conjugal act, tends to become incarnated in a new "I", reflection and expression of their marital love. What can be more unique, as a mode of self-realization, than the generation of their own child - another person, in all of its unrepeatability - fruit of the self-gift which each spouse makes to the other?

            Awareness of the procreative character of the conjugal act and respect for its integral nature perfects its unique contribution to the "good" of each spouse, maturing and "realizing" each one of them and binding them together. Each child is then a visible incarnated link fortifying the conjugal bond whose strength is so essential for the fulfillment and genuine good of the spouses.

            The conjugal act, when carried out "in a human way" (cfr. c. 1061, § 1; GS 49.), powerfully aids the "bonum coniugum". This "human" character of conjugal sexual intercourse calls first of all for a truly human understanding of the reasons why the act unites the spouses, and then respect for this intrinsic nature and function of the act. Contrariwise, the "bonum coniugum" is undermined by anti-natural sexual intercourse, which contradicts both the specific meaning and dignity of the conjugal relationship, as well as the distinctive spousal identity of husband and wife.

            When one looks not only at procreation but also at the education of children, one can immediately see how their role as educators favors the good of the spouses of its very nature. Education of the children cannot be - ought not to be - an activity of just one of the parents. It should involve both, in constant and harmonious cooperation. Such cooperation is in fact an expression of the "consortium vitae", reflected in a joint family undertaking. It calls on the parents to achieve a community of action, of points of view, of criteria, of orientation in the ongoing process of educating each of their children in freedom and personal responsibility (always respecting the distinctive personality God has given each one), and to maintain a united home.

            It is obvious that such a family community - such unity of ideas and of practice - cannot be achieved without the constant exercise of the will by each of the spouses, so as to subordinate strictly personal interests to the good of the family. So again we see the spouses involved in a constant process of personal maturing.

            The same can be said for the efforts, which not infrequently demand heroic generosity, to meet the material or financial needs of the family.

Is there a right to the "bonum coniugum"?

            Does there exists, as it is at times suggested (A.M. Abate: "Il Consenso Matrimoniale": Apollinaris, 59 (1986), pp. 475-476; Sent. c. Pompedda of April 11, 1988), a right to the good of the spouses, a "ius ad bonum coniugum"? It seems to me that, in virtue of the same critical reasons we have brought to bear on an alleged "ius ad prolem" or "ius ad procreationem", the answer must be negative.

            There is no right to offspring - to actual procreation - although there is a right to the "bonum prolis": i.e. a right of access to one's spouse's procreative power by means of the conjugal act. As can be seen, there is a finely balanced connection between that constitutive attribute of consent - the gift of procreativity - from which essential rights/obligations arise, and the possible but non-essential consequence of that gift: actual procreation (One has to distinguish "inter consecutionem finis et ordinationem ad finem: consecutio finis est contractui extrinseca; ordinatio ad finem... est contractui intrinseca et essentialis" D. Staffa, De conditione contra matrimonii substantiam, ed. 2, n. 9, nota 37.). Therefore the actual achievement of that end of marriage which is the procreation of offspring, cannot be treated as if it were the object of an essential right/obligation; nor can the failure to achieve it be a cause of the nullity of marriage. Sterility - that is, the incapacity for procreating and so attaining one of the principal ends of the conjugal partnership - does not in fact invalidate marriage. It is for this reason that one cannot correctly speak of a "ius ad prolem", a right to children (There exists a "ius ad procreativitatem" - to what the other can give - , because the willingness to procreate lies within the other party's power; but there is no "ius ad prolem", because actual procreation does not lie fully within the power of the other party: it always remains a gift of God.).

            For quite similar reasons it seems questionable to me that one can properly speak of a juridic right to the "bonum coniugum" (No doubt one can always speak of an "ordinatio ad procreationem" or of an "ordinatio ad bonum coniugum", as essential elements of matrimony; it is not however clear that these "orderings" give rise to any new and autonomous right - essential to the constitution of marriage - that would be independent from those deriving from the three traditional "bona".); nor do I see the way to a proper juridic determination of autonomous essential rights/obligations deriving from the "bonum coniugum" (cfr. Sent. Nov. 26, 1992 coram Burke, in una Armachana, nn. 14ss.).

            Marriage is ordered in fact both to the "good of the spouses" and to the procreation/education of children (c. 1055, § 1). But if, as Raad points out in the sentence of April 14, 1975 already referred to, an incapacity to effectively generate does not invalidate marriage, neither, it would seem, does an incapacity to achieve the "bonum coniugum" (The "bonum coniugum", rather than as an essential obligation, would seem better classifed as an effect of marriage; as an effect, concretely, of the observance of the essential obligations involved in the three augustinian "bona".). One has the right to what must be given by the other; not to what marriage itself may or may not give, for this latter gift depends not just on the spouses but ultimately on God. Sometimes God's plan for the good of the spouses involves a childless marriage; and it not infrequently seems to involve a union where personality differences create tensions between the spouses that can pull the marriage apart - unless they have recourse to prayer and sacrifice so as to learn to get on together. The analysis of this point necessarily depends on how one understands the good for the spouses which by divine design should derive from marriage.

            Husband and wife should mutually confer on each other essential rights that tend to their "good" as spouses: rights that derive in the last analysis from the three augustinian "bona". Each of them in fact has a moral obligation to strive for the achievement of the "bonum coniugum". Within the sphere of our present interest, however, it can be said that neither of them can claim that good as a juridic right, as something owed to him or her by the other; the reason being basically because the actual achievement of this "good" surpasses the will of the other person and depends above all on the will and design of God.

            We have recalled the teaching of Pius XII that, despite the importance of the procreative end of marriage, actual procreation of children can be avoided, even for a life-time. From the moral point of view, there must be serious reasons to justify such a decision (cfr. Humanae Vitae, no. 16), while from the point of view of justice, it must be by mutual accord between the spouses. If the decision to totally avoid having offspring were unilateral (and pre-marital), the marriage would certainly be invalid, as involving simulated consent. As always in the case of unilateral simulation, not only is the consent juridically insufficient of itself to constitute matrimony, but the right of the other party has been gravely violated by deceit.

            Positive unilateral exclusion of the "bonum coniugum" would certainly invalidate, but seems in practice to coincide with exclusion of one or all of the three "bona". "Rather than speak of a right to the "bonum coniugum", one may consider the good of the spouses (just as one may consider procreation) as a source of rights or obligations. However, it would seem that the only legal measure of what is essentially involved in such rights/obligations is provided by the three augustinian "bona". From a juridic standpoint, the "bonum coniugum" gives rise to no other essential rights/obligations. So, while it is clear that the exclusion of the "bonum coniugum" invalidates (as does the exclusion of offspring), it is not clear that such exclusion comprises anything substantial not already contained in the three "bona". Therefore possible claims of nullity due to "the exclusion of the good of the spouses" are more properly formulated in terms of typical grounds of total or partial simulation" (Sentence of Nov. 26, 1992, coram Burke, in una Armachana, n. 15). Other possible violations that might relate to the "bonum coniugum", would seem to be covered by c. 1098 on deceit.

            The fundamental right which the spouses possess is the right to the "traditio coniugalis suiipsius", made without reserve inasmuch as concerns those three essential aspects: exclusiveness, permanence, and openness-to-life. It is precisely this conjugal donation - made and accepted in all it implies - which tends to the "good" of the spouse.

            These reflections can help throw some light on the issue of the "bonum coniugum" in certain matrimonial situations that we will briefly mention here (even though, properly speaking, this leads us out of the strictly juridic field and into that which is moral or pastoral). Situations, for instance, where love is no longer easy - where on the contrary it seems to have ceased or to have "died" - and the spouses are tempted to abandon the effort to keep their conjugal life going. In such a situation, the "bonum coniugum" is truly promoted by the effort of each one to understand the other and to maintain their life together, rejecting the temptation to take "the easy way out". It is precisely that easy way out which can frustrate the good of the spouses, that is, their maturing as persons, while the harder choice is the one that matures them most. The words of Paul VI, "having started as a spontaneous sentiment, love becomes a binding duty", offer the key to understanding how the "bonum coniugum" is intensely realized if the spouses respond to the demands of such a situation. Each one of the two should graduate from the facility of a spontaneously felt love to the maturity of a fully willed dedication; if they are capable of progressing this sense, the "bonum coniugum" develops with great effect.

            Marriage involves a choice and a commitment. The matrimonial choice should be generous not selfish. The Code edited by the Canon Law Society of America remarks that "the unselfish giving in the context of the marital community promotes the natural and spiritual good of the spouses" (The Code of Canon Law: A Text and Commentary, 1985, p. 740.). As Pope John Paul II said to the Rota in 1987: "it is only possible to fulfil the meaning of the conjugal union, expressed in the reciprocal donation of the spouses, through a continuous effort that includes renunciation and sacrifice" (AAS vol. 79 (1987), 1456.).

            God has wished faithfulness and indissolubility to be essential properties of marriage. Sacrifice is needed in order to give oneself faithfully to one's spouse; and it is no less needed to give oneself throughout the whole of a lifetime, and equally so in order to have and educate children. So, these overall sacrifices make up an important part of God's plan for the "good of the spouses", for their perfectioning through marriage.

            In short, then, the spouses who have attained conjugal maturity by passing through difficulties and obstacles and learning to live together, are faithful to their "good" as God has wished it.

            What can one say of the really shipwrecked marriage where for instance one of the spouses reneges on his or her conjugal commitment and walks out on the other? Is it possible to continue to speak of the "good of the spouses" in such a context? Or must one conclude, as would appear, that it also has been totally wrecked?

            As regards the reneging spouse, certainly the marriage would scarcely seem capable of working any longer toward his or her "good". Yet it can still work powerfully for the good of the other, if he or she remains true to the marriage bond. If that fidelity is maintained, moreover, it may in God's providence act as a call to repentance, as a force of salvation, for the unfaithful spouse, perhaps in his or her very last moment on earth - when one's definitive "bonum" is about to be decided.

            That the positive potential of such situations can be grasped only in the light of the christian challenge of the Cross, does not in any way weaken the analysis. If it is true that the positive potential may never be actually realized, this simply reflects the risk and mystery of human freedom.

            The "bonum coniugum" is simply the ultimate result to which marriage tends when it is lived according to the essential elements characterizing the bond through which the spouses freely consent to unite themselves to one another: permanence, uniqueness, procreativity (So, while there is no right to the "bonum coniugum", there is a right to those essential properties of marriage - the three augustinian "bona" - on which the realization of the "bonum coniugum" mainly depends.).

            We could here add some brief ideas about the exclusion of the "bonum coniugum", a topic whose analysis offers no small difficulties. It is evident that the good of the spouses is frustrated by the person who excludes indissolubility or exclusiveness of offspring. However, in such cases, the marriage is null by reason of the exclusion of one of the traditional "bona" rather than by that of the "bonum coniugum": the exclusion of the end ("good of the spouses") is absorbed in the exclusion of the essential property.

            It is arguable that the "bonum coniugum" is excluded by the person who conceals from the other party some personal circumstance (a serious illness, for example) that will necessarily undermine their conjugal relationship. But here again we are before a case which, if juridic rigor is observed, should be treated under another heading: that of fraud (c. 1098). Likewise, if we examine the incapacity for accepting the demands of the "bonum coniugum", this would seem to coincide with the incapacity to assume the essential rights/obligations of matrimony (c. 1095, 3° ).

            It may well be due to the very nature of the phenomenon that few cases are met where matrimonial consent is invalid because of the exclusion of the "bonum coniugum", understood as an autonomous grounds of nullity. Nevertheless, it seems obvious that the good of the spouses is excluded by the person who marries with the intention of perverting his or her partner, of getting him or her to apostatize from the faith, to live an immoral life, etc. Exclusion would certainly also be involved if one party intended to deprive the other of some fundamental human dignity: his or her physical or moral freedom, etc. Without being pushed to such unlikely extremes as the famous "Jemolo case", one could no doubt come up with other possible cases (cfr. "The Bonum Coniugum and the Bonum Prolis; Ends or Properties of Marriage?": The Jurist 49 (1989), p. 708.).


            As we end our study, we would suggest that the married personalism which conciliar thought has introduced into canon law has marked clear progress - but not a break - with respect to the past. If c. 1057, § 2 is undeniably different in form, to its counterpart in the 1917 Code, it is much less so in its substance. Our study in fact suggests that while the understanding of marriage as involving personal sexual self-donation is certainly facilitated by the new formula, the essence of what is involved in matrimonial consent (i.e. its object) remains, as one might expect, the same. In confirmation of this is the unresolved difficulty found in pinpointing essential rights, deriving from consent, different from those that emanate from the three augustinian "goods". The consideration of the new formula, however, has helped us attain a deeper understanding of the personalist aspects of these goods.


[1] "for the good of the spouses, of the children, and of society this sacred bond no longer depends on human decision" (Gaudium et Spes, no. 48). "The number and importance of the benefits which flow from the indissolubility of matrimony cannot escape anyone who gives even a brief consideration either to the good of the spouses and the children or to the welfare of human society": Casti connubii (AAS 22 (1930), 553).

[2] cfr. the author's study: "The "Bonum Coniugum" and the "Bonum Prolis"; Ends or Properties of Marriage?" The Jurist, 49 (1989):2, pp. 705-709.