From Contract to Covenant: Evolution of the Church’s Understanding of Marriage

Since our Lord first raised marriage from a natural institution to a sacrament, the Church’s understanding of marriage has evolved rather significantly. For example, most societies historically rooted in Christianity no longer consider women to be chattel or possessions of their husbands.

Marriage as a Contract

Such was not the case when Christ walked the earth. Thus the status of women has improved within society and the institution of marriage as the Church deepened her understanding of marriage throughout the centuries.

An example of this comes to mind from the Middle Ages, when secret marriages plagued society. To explain: It was not uncommon for an errant knight to seduce a young maiden after an evening of wine and song. The couple would find a secluded milieu to exchange their wedding vows and then consummate their marriage. (Think of the scene from the movie Braveheart where Mel Gibson’s character goes into the night forest and privately exchanges his wedding vows with the object of his love.) The following morning, the woman would press rights as spouse while the knight would deny having contracted the marriage. Lacking any witnesses to the wedding, the situation would end in his word versus hers. Or in another common scenario, a traveling merchant or entertainer would keep a different wife in each town along his regular route.

Of course this led to much chaos within both society and the institution of marriage. More often than not, the woman bore the brunt the confusion. She was the one left pregnant. She was the party who suffered from financial loss and a loss of reputation. Thus in response to these various evils caused by secret marriage, the Church instituted, after much debate, the canonical form of marriage for validity.

Basically, the Church now required marriage to be contracted before a qualified witness for the Church, namely a priest. Inspired by Jewish law, the Church also now required the presence of two additional witnesses. In the years to come, this would provide additional protection and stability for women who entered into the Sacrament of Holy Matrimony. With two outside individuals and a pastoral agent of the Church acting as public witnesses to the wedding vows, the future husband would be bound to carry out his promises at the altar. If he attempted to renege on his word after the fact, which often happened with secret marriages, these outside witnesses could be brought forth to publicly testify about the existence of the marriage.

Yet the Church’s understanding of marriage did not cease to develop after the Council of Trent. After all, as a sacrament marriage is an important part of the Church’s Tradition and not merely a museum piece. Therefore, the theology of marriage continued its organic development throughout the centuries and both men and women continued to benefit from the Church’s deepened understanding of the nature of marriage. Nevertheless, these theological developments were relatively minor until the Second Vatican Council.

Marriage as a Covenant

With the Second Vatican Council and the post-conciliar era, three important developments arose within the Church’s theology of marriage. The first is that our understanding of marriage evolved from that of a contract to that of a covenant.

Under the 1917 Code of Canon Law, canon 1012 and all subsequent canons on matrimonial jurisprudence speak of the marriage contract. To provide background: the Church, at least in the West, had borrowed the language of contract from the ancient Roman legal system when expounding upon her theology of marriage. In practice, for a long time in the Church, this meant that so long as you stood in the right place and said the right thing (form and the exchange of consent), you were married. Regardless of how the partnership worked out or the purpose for which each party entered into the marriage, as long as the individuals were free to marry and intended to contract a marriage (i.e. permanent, faithful, open to children), the principal parties found themselves bound to the marital contract.

Come the 1983 Code of Canon Law, the Church firmly introduced the language of covenant into matrimonial jurisprudence. In fact, the word covenant is most pronounced in canon 1055, which for canonists is the theological canon that defines marriage as it is to be understood within canon law in the Latin Church. The definition is as follows: “§1. 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 baptized, been raised by Christ the Lord to the dignity of a sacrament.”

Similarly, the 1990 Code of Canons of the Eastern Churches (CCEO), promulgated for our Eastern Catholic brethren, also adopts the language of covenant. CCEO canon 776 §1 defines marriage as follows: “The matrimonial covenant, established by the Creator and ordered by His laws, by which a man and a woman by an irrevocable personal consent establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the generation and education of the offspring.”

As one discerns from these two canons, a covenant gives rise to a much deeper relationship than does a contract. Intrinsic to a covenant is the welfare of the other person, who in this case is the intended spouse. Thus the New Catholic Encyclopedia provides us with the following insight into the word covenant: “The theology of the covenant in the Bible is consistently a theology of divine promise. Whether in a profane or a sacred sense, the sacred authors utilize the berit [Hebrew for “covenant”] to trace the line of salvation history toward its divinely willed goal.” In essence, the biblical idea of a covenant is that of a strong pact between humans or between God and humans, in which each promises to assist the other towards a common goal.

Not Every Wedding Makes a Marriage

How does this differ from the theology of contract? In answering this question, let us borrow an example from a certain Italian canonist who found this whole concept of contract problematic when applied to the sacrament of marriage. In discussing his concerns, he proposed the following hypothetical situation to his students:

There are two feuding mafia families — one has a son and one has a daughter. Let us anglicize the story somewhat and name these two individuals Romeo Hatfield and Juliet McCoy. One day, Romeo concocts a plan through which he intends to use Juliet in order to attack the foundation of the McCoy family. He decides to court her until she accepts his marriage proposal, at which point he would “stand in the right place and say the right things.” He promises her fidelity and exclusivity. He gives her lots of children, and when these children come of age he introduces them to the family business. In short, he enters into the marriage with the intention to fulfill all the contractual obligations required of him by the Church.

Yet he also intends to make this marriage a living hell for Juliet. In order to avenge his family in their feud against the McCoy family, Romeo beats Juliet down emotionally and breaks her apart as a human being. He belittles her and mistreats her daily, and he physically abuses her whenever he knows he will get away with it. Is this truly a marriage, as the Church ought to understand this sacrament?

The Italian canonist who proposed this hypothetical situation did not believe so, and neither did many of his students. Yet at the time he proposed this hypothetical situation, many canonists did. In short, if we understand marriage exclusively as a contract, then Romeo met and fulfilled all the requisite intentions in exchanging his wedding vows with Juliet. He intended to remain faithful so long as both parties lived, and he fully intended to bring children into the relationship. Therefore, under the contractual model of marriage, this would be a highly abusive marriage, but nevertheless a valid marriage.

Essentially, most canonists of the time held a “lowest common denominator” approach to marriage. So pervasive was this approach that many well-intentioned pastors counselled abused women to go home to their abusive husbands merely because the couple were “married,” meaning they had stood in the right place and said the right things during a wedding ceremony.

This does not hold, however, when we understand marriage as a covenant. After all, when the mutual welfare of the spouses enters into the Church’s understanding of marriage, how can the aforementioned relationship between Romeo and Juliet rise to the level of marriage? In other words, not every wedding makes a marriage.

Partnership and the Good of the Spouses

And thus we encounter two other important developments in matrimonial theology and jurisprudence since the closing of the Second Vatican Council. These are the recognition of marriage as a partnership, and the recognition of the good of the spouses as an essential element of marriage. This, in turn, establishes marriage as a communion of life and love.

We are all familiar with St. Paul’s injunction: “Wives, be subject to your husbands, as to the Lord. For the husband is the head of the wife as Christ is the head of the church, His body, and is Himself its Saviour. As the church is subject to Christ, so let wives also be subject in everything to their husbands” (Eph 5: 22-24). In the past, this scriptural passage has unfortunately been used to excuse everything from domestic violence to the subjection of women within the institution of marriage.

Yet within the context of St. Paul’s writings, it touches upon the matrimonial theology of partnership, mutual welfare of the spouses, and communion of life and love. The verse prefacing this passage is clear — “Be subject to one another out of reverence for Christ” (Eph 5: 21) — as is the passage that comes afterward: “Husbands, love your wives, as Christ loved the church and gave himself up for her…. Even so husbands should love their wives as their own bodies. He who loves his wife loves himself. For no man ever hates his own flesh, but nourishes and cherishes it, as Christ does the church…” (Eph 5: 25, 28-29).

In short, the marital partnership is implicit in St. Paul’s injunction that husbands and wives be subject to one another out of reverence for Christ. Similarly, communion of life and love is implied within this passage. St. Paul teaches that a husband’s love to which a wife subjects herself should be a self-sacrificing reflection of how Christ loves the Church. For just as Christ laid down His life for the Church out of a deep love for us, so too should a husband lay down his life for his wife if love requires it. Obviously, such a tremendous love rules out domestic violence, belittling and other forms of marital abuse. For one should never abuse and belittle one’s own flesh.

The partnership is a covenant between a man and a woman. If both these individuals are baptized, then the marital covenant is also by that very fact a sacrament, meaning that each party promises to assist the other toward the mutual goal of salvation. A sacramental marriage is therefore a visible sign of God's love in the world. The couple finds in their relationship a source of God's grace, and through their partnership they assist one another in coming closer to God.

The spouses establish a covenant of marriage through their marital consent, by which they intend to establish between themselves a partnership for the whole of life. This means each spouse will assist and support the other in all areas of their common life, the best he or she is able, so long as the other spouse is alive.

For this reason marriage is permanent (indissoluble) and exclusive (monogamous). The goal of this covenant, by its nature, is the mutual welfare of the spouses (physically, emotionally, and spiritually) as well as openness to the procreation, welfare, and education of children. The Church commonly refers to the good of the spouses and the good of children as the two elements of marriage.

Prior to the Second Vatican Council, although implicit in St. Paul’s theology of marriage and well-understood among our Eastern Catholic brethren, the good of the spouses was not clearly articulated in Western theology. Under the theology of marriage as a contract, Latin Catholics spoke of the primary and secondary ends of marriage — the primary end being the procreation of children, and the secondary end being the remedy of concupiscence. Under the theology of marriage as a covenant, however, the entire Church now better understands the good of children (both their procreation and their upbringing) and the good of spouses as the two equal co-ends of marriage.

Communion of Life and Love

Yet this understanding of marriage is not new, nor is it exclusive to sacramental marriages among the baptized. Rather, this understanding of natural marriage is implicit in the text of Genesis 2:18-25, which teaches that God's will has established all marriage. True marriage is heterosexual (between a man and a woman); it is monogamous (one man and one woman); it is exclusive (the two form a new and unique relationship; the two become one); and it is permanent (if the two become one, this new union cannot be divided; a conclusion Christ confirms in Matthew 19:3-12).

The ends of marriage are also taught in Genesis. First, we read there how God told Adam and Eve to “be fruitful and multiply” (Gn 1: 27-28). Thus marriage is about “fruitfulness,” or bringing children into the world and raising them to maturity (procreation and education). In addition, we read in Genesis 2:18-25 that God created all the animals and brought them before Adam to be named. But a “suitable partner” was not found for him among them. So God created the woman, and Adam responded: “This at last is bone of my bones and flesh of my flesh” (v. 23).

This passage confirms what the Church teaches about marriage: that it involves the partners being suitable for each other through the sharing of strengths and weaknesses. When Adam says, “bone of my bone,” he means, “this one is strong where I am strong.” And when he says, “flesh of my flesh,” he means, “this one is weak where I am weak.” And so we see the Old Testament basis for marriage as a partnership ordered toward the good of the spouses.

This brings us back to the idea of marriage as a partnership of life and love (communio vitae). As holders of ecclesiastical offices within our respective dioceses' marriage tribunals, both authors deal with broken marriages on a daily basis. When we examine marriages to determine whether they are valid, we look at the consent of each party to the marriage, asking ourselves whether this consent measured up to the Church's teachings on marriage.

Communion of life and love plays an important part of this investigation. The consent necessary to contract marriage requires the parties be capable of either choosing or living out marriage as a partnership of life and love. It requires that each party know each other well enough to create partnership of life and love. It requires that the parties know that marriage is a partnership of life and love. It requires that they be willing to enter into a partnership of life and love. In fact, recent rotal jurisprudence suggests that to exclude this partnership of life and love is to exclude marriage in its entirety.

In conclusion, the Church’s theology of marriage significantly evolved after the closing of the Second Vatican Council. These theological developments continue to benefit husbands and wives, as well as the institution of marriage itself. Yet the foundation for our deepened understanding of marriage is nothing knew; we find it implicitly taught in Holy Scripture, whether in the Genesis narrative of the Old Testament or St. Paul’s teaching in Ephesians.

© Copyright 2005 Catholic Exchange

Pete Vere is a doctoral student with the Faculty of Canon Law at Saint Paul University. He recently co-authored Surprised by Canon Law: 150 Questions Catholics Ask About Canon Law (Servant Books) with Michael Trueman and More Catholic Than the Pope (Our Sunday Visitor) with Patrick Madrid. He lives with his wife and two daughters in Ottawa, Canada.

Jacqui Rapp came into full communion with the Church in 1995 while in law school, and then completed her canon law studies from Saint Paul University in 1998. She worked for the Archdiocese of Louisville until her daughter, Alexandra, was born in 2002. Jacqui is now a work-at-home-mom, doing canonical consulting and writing on canon law, marriage and family issues.

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