1944 Roman Rota Judgment on the Ends of Marriage

This is a translation of a judgment of the Holy Roman Rota which refers, according to its attributions and conforming to the will of the Supreme Pontiff, to the principles themselves of Canon Law. The publication of this sentence in the Acta Apostolicae Sedis (36th year [1944] pp. 179–200), and the constant use which seems to have been made of it in the addresses of the Holy Father Pius XII, stress the importance of this document, which, though occasioned by a particular case, constitutes an official interpretation of previous texts and the most authoritative act of ecclesiastical jurisprudence as regards to the matter.

THE ORDER OF THE PURPOSES OF MATRIMONY

Extract from the sentence of the Holy Roman Rota, January 22, 1944 (a).

(Exposition of the case.)

(I. Discussion of the request for nullity based on the motive of violence and fear.)

II. — Simulation of Matrimonial consent

9. The Law.

Since the asserted simulation of matrimonial consent, in the present case, is strictly connected with the ends of Matrimony, and the Holy Father gloriously reigning, inaugurating on October 3, 1941, the new juridical year of the Roman Rota, having spoken in regard to the ends of matrimony, inviting the Auditors, as it seems, to go deeper into this question and to it more carefully, it is useful to point out what follows.

Matrimony has a primary and a secondary end. This is evident from the Constitutions and the numerous Encyclicals of the Supreme Pontiffs, from the doctrine of theologians, canonists and moralists, and from the explicit words of Canon Law. Canon 1013, #1, says: “The primary end of Matrimony is the procreation and education of the children; the secondary end is mutual aid and a remedy for concupiscence.” The word finis (“end”) in the above-mentioned sources is taken in a technical sense and means a benefit which is meant to be obtained both on the part of nature and by deliberate intention of the agent. There must also be used in matrimony the well-known distinction between the finis operis and the finis operantis (which can be one or several). The finis operis in matrimony is that benefit which matrimony tends of its very nature to obtain, and which God the Creator gave to the institution of matrimony. If it is true that matrimony “by its very nature is a divine institution” and that “it was governed by laws, confirmed, and elevated by God, the Author Himself of nature, and by the same Restorer of nature, Christ Our Lord,” it follows that “the very institution of matrimony, the ends, the laws and the benefits also come from God” (Encycl. Casti connubii, cf. n. 267). Beside this the finis operantis is that benefit to obtain which the will of the contracting parties tends. It is evident that the finis operantis can coincide with the finis operis; indeed, Pius XI of happy memory expressly warns the contracting parties “to seek in matrimony those very ends for which it was instituted by God” (Ibid., n. 385). The Roman Catechism, treating of the causes which direct men to matrimony, stress in the. first place one of the finis operis, saying: “The prime cause is the society itself between the different sexes, sought by natural instinct and established in the hope of mutual help, so that each one may withstand, more easily with the help of the other, life’s hardships and support the weakness of old age” (cf. Ibid., n. 287, note (a)). But these two ends do not always coincide. Indeed, it can happen that the finis operantis is completely extra or praeter to the finis operis. For example, if the contracting party proposes as the primary end of matrimony the acquirement of riches or the freedom from an evil which would otherwise threaten him. The finis operantis can also be contrary to the finis operis and this happens every time that a person contracting matrimony has in mind a benefit or an end which is repugnant to one or all of the finis operis, namely of matrimony. But now the finis operis must be treated separately.

10. — Matrimony, considered as a work and institution of nature, is a natural society, one and indivisible, specifically distinct from every other human association. It must have therefore a natural finis operis, one and indivisible, specifically proper and distinct from every other end. Now the end, as the Angelic Doctor testifies, “est causis formalis, qua plurium unio peragitur atquc specificatur talis qualis est.” It follows that when several fines operis are assigned to the one and same society, one of these must be prime and principal, by reason of its formal cause, in which the other ends are contained or to which others are added so that the prime cause can the more easily, surely and fully be achieved. It is necessary therefore that among the ends of matrimony there be determined the order, according to which the other finis operis be subordinated to the principal end, which determines the specific nature of matrimony.

11. — A) The primary end of Matrimony.

The primary and principal, one and indivisible finis operis of matrimony which uniquely specifies its nature is the procreation and education of the offspring. This end can be considered a) active, b) passive, c) sub utroque respectu. Considered as active it regards the activity of the wedded couples, namely, the wedded couple inasmuch as they procreate and educate the offspring; intended as passive it regards the offspring inasmuch as they are procreated and educated; taken sub utroque respectu it considers the wedded couple and the offspring together. The secondary ends, then, which are ordained to the primary end, can regard rather one aspect than another — active or passive — but they can also regard in an equal measure both aspects.

12 — a) This objective ordination of matrimony to the primary end which is included in its nature, if it is considered in the order of execution, consists in this that the conjugal union (as much in fieri as in facto esse) contains of its very nature and can supply all that is demanded on the part of human activity and is sufficient to obtain the procreation and the education of the offspring (in a manner suitable to and worthy of human nature). Indeed, Christian marriage, of its very nature, comprises the destination, aptitude and sufficiency to obtain this end, since all those who contract marriage or are already married are united and bound by a reciprocal right, exclusive and perpetual, to effecting acts capable of themselves to generate offspring. Therefore, having placed this right in its true light, considering the vehement urge of the sexual appetite to exercise the generative power, and keeping in mind that it is not lawful to satisfy this appetite outside of marriage, it must necessarily be concluded that the end which is the procreation and the education of the offspring is sufficiently and efficaciously provided for.

13. — This natural ordination to the primary end, this aptitude and sufficiency is achieved in every valid matrimony (even those of the sterile and of the aged) and is so essential that lacking this no marriage can exist or continue to exist. No marriage can be contracted, no marriage can exist if the basic right over the partner’s body relative to the generative acts is not established or does not exist in the wedded couple. If this basic right is wanting or ceases, marriage cannot be contracted, or if it were already contracted, it ceases with the ceasing of this basic right (this happens following a dispensation of a matrimony ratum et non consummatum).

14. — b) No less so than marriage itself, even the conjugal act is subordinated and bound to the primary end, and to such a degree, that the exercise of this act is only permitted if and inasmuch as there is verified and is observed its essential subordination to the primary end of matrimony. This subordination is secured by the fact that husband and wife, when completing the natural conjugal act, can give all that is requested and suffices on the part of human activity for the generation of offspring (the sentence of the Rota, April 25, 1941, before Wynen should be consulted, where there is treated fully this subordination of the conjugal act and of the essentially required elements in copula so that this subordination can be said to be of itself apt for the generation of the offspring).

15. — This subordination to the primary end which exists through its natural structure in the naturally completed conjugal act, is observed and is verified even in the wedded union of sterile persons and of others who for causes extrinsic to the act cannot generate offspring with the natural use of marriage. The following words of Pius XI of happy memory, taken from the Encyclical Casti connubii, refer to such persons: “Nor are husband and wife to be accused of acting against nature if they make use of their right in a proper and natural manner, even though natural causes (owing to circumstances of time or to certain defects) render it impossible for new life to originate. Both matrimony and the use of the matrimonial right have secondary ends — which husband and wife are quite entitled to have in view, so long as the intrinsic nature of the act, and therefore its due subordination to its primary end, is safeguarded” (Encycl. Casti connubii, cf. n. 31).

16. — The Supreme Pontiff gloriously reigning, in his allocution to the Holy Rota, mentioned above, also stresses that the conjugal act is subordinated to the primary end of matrimony; indeed he reproves the manner of those whose writings and judgments either completely separate or isolate beyond due measure the conjugal act from the primary end of matrimony. In the same error fall also those who hold that for the essence of the matrimonial act it is sufficient that such an act be completed in the natural manner in conformity to its external species, even if in its fulfillment it lacks one of the elements which on the part of conjugal activity itself are wholly necessary, and whose absence, if antecedent and incurable, render man incapable of matrimony, according to the constant jurisprudence of the Holy Rota, (cf. the above stated sentence): “for example if the male has not the faculty or the power to emit true seed, namely that which is produced in the genital organs, even if it be deprived of spermatozoa. These are the words of Pius XII: “Two extremes … are to be avoided: on the one hand, to deny practically or to abase excessively the secondary ends of matrimony and the generative act; on the other, to dissolve and separate beyond measure the conjugal act from the primary end, to which according to all its intrinsic structure it is primarily and principally ordained” (Discourse to the Members of the Tribunal of the Holy Roman Rota, October 3, 1941; cf. n. 470).

17. — B) The secondary end of Matrimony

The previously mentioned canon 1013 assigns a double secondary end to matrimony, namely, the mutuum adiutorium and the remedium concupiscentiæ. These ends are fines operis and not only fines operantis.

18. — a) Only a few things need be said of the other secondary end, the remedium concupiscentiæ and of its relation to the primary end. It will be easily understood that of its very nature this end is subordinated to the primary end of generation. Indeed, concupiscence is remedied in matrimony and by means of matrimony with the lawful use of the generative faculty — a use destined, proportioned and subordinated to the primary end of matrimony, in the above mentioned manner. Therefore, even the sedatio concupiscentiæ as a result of conjugal acts, is together with these acts subordinated to the primary end of matrimony.

19. — b) The other secondary end is the mutuum adiutorium, which includes various services and mutual aids between the contracting parties, for example, cohabitation, the same table, the use of material benefits, the acquirement and the administration of the means of subsistence, the most personal help in the various conditions of life, in the psychic and somatic exigencies of life, in the use of the natural faculties and also in the exercise Of the supernatural virtues (cf. Leo XIII, Encycl. Arcanum, n. 156; Pius Xl, Encycl. Casti connubii, nn. 285–287).

20. — Recently, some authors when treating of the ends of matrimony, explain this mutuum adiutorium in a different manner. They hold that inasmuch as “the personal being” of the married couple receives a help and a complement, this evolution and perfection “of the person” of husband and wife is not a secondary but a primary end of matrimony. However, not all of these authors consider the matter in the same light. These newcomers to matrimonial matters stray from true and certain doctrine, without being able to apply solid and proven arguments in favor of their opinions. Putting aside these teachings of some recent authors, therefore, we must now examine the order and the interdependence between the primary and the secondary ends of matrimony, omitting the remedium concupiscentiæ, which we have already treated briefly above.

C) Relation of the secondary end of matrimony with the primary end.

Even outside of matrimony there can be a reciprocal help and common life between two persons of different sex either in the simple case of brother and sister living together, or in virtue of an explicit agreement to lend each other reciprocal help. This reciprocal help and common life, inasmuch as they are called and are proper to matrimony and its secondary finis operis must be considered according to a special property, which distinguishes them from any other community of life, united to reciprocal help. They are, then, distinguished by their internal relation to the primary end, which differentiates the conjugal union from every other human association.

22. — a) This relation between the secondary and the primary end is found first of all in the origin of this primary end in the origin of the corresponding right to mutual aid. It can be demonstrated thus: The immediate and essential object of the matrimonial contract is the exclusive and perpetual right over the body of the partner as regards the acts capable of generating offspring (1917 C.I.C., can. 1081, par. 2; cf. n. 268, note (b)). As a consequence and natural complement of this right, there follows the right to all that without which the right to generate — and consequently to educate — the offspring, cannot be satisfied in a manner suitable to the dignity of human nature. Now it is not possible to satisfy in the above mentioned manner the right to generate and educate the offspring if the right to mutual help is not added to such a principal right, which includes the right to common life, in other words the right to cohabitation, bed and board, and help in all the necessities of life. Let it be noted, however, that it is not a question here of the help lent by fact, but of the right to this mutual adiutorium, indeed, as the principal object of the matrimonial contract is not the “offspring”, but the “right” to beget offspring, so the secondary object is not the mutuum adiutorium but the right to it.

23. — From what has been said up to now it follows that the right to life in common and mutual help is a result of the contracting parties’ primary right to beget offspring. It also follows that a matrimonial contract cannot be concluded, which aims at mutual help and which prescinds at the same time from the given and accepted right to the body: such a contract (not conceding any right on the body) cannot be stipulated between two persons of different sex unless it be outside of marriage. A matrimonial contract attempted in such a manner would be null and would not establish in the contracting parties either a principal or a secondary basis of matrimonial rights. On the contrary, every matrimonial consent to give and accept the right over the body of its very nature, gives rise to the married couple’s right to a life in common and to reciprocal help.

24. — However, since this secondary right does not enter into the principal right as its constitutive part, nor is united to it as its prerequisite condition sine qua non, a matrimonial contract can be concluded which regards the principal right and explicitly denies the secondary end. In particular, as regards cohabitation which is one of the principal benefits united to the secondary end, and of its exclusion in the contract, Wernz-Vidal has to say: “Husband and wife, not being able to satisfy regularly and conveniently the conjugal debt without cohabitation, are, owing to this fundamental right and duty of marital life, also held by an onerous duty not only to observe cohabitation in the same house, but also to participate at the same table and have the same bed, except in cases contemplated by law. This assiduous cohabitation, common bed and board, belongs to the integrity of individual life, not to the essence of conjugal life, and therefore, sometimes, in a particular case, for a reasonable cause, they may be wanting, as in a marriage of conscience, and the obligation of justice to observe these matters admits a certain elasticity” (Ius can. Vol. V, n. 600). Gasparri on the matter teaches: “The greater number of authors maintain that the condition never to live together is against the substance Of matrimony; but if the matrimonial right is truly observed by both parties, we do not think that such a doctrine corresponds to truth, because habitation, bed and board in common do not form part Of the substance Of matrimony; and indeed, a marriage of conscience is permitted, with such a tacit or expressed condition” (De matr. 1932, ed., n. 905).

25. — These rules are to be taken into account also in the case in which the contracting parties, renouncing the secondary end of cohabitation and the mutual aid connected to it, by common consent agree not to make use of the right given and accepted to the body of the other partner. “Just as it is not contradictory to receive a right already suspended as concerns its use in the very acceptance of the right, as happens when two persons bound by the vow of chastity contract matrimony, so there is no contradiction in giving a right whose use is excluded, with the consent given by the other party to such an exclusion” (Wernz-Vidal n. 521, note 46). The inner reason which renders the matter admissible is this “Husband and wife are not obliged ad copulam, unless one or the other party asks for the debt, and one of the parties can renounce to claim this right, obliging himself not to request it; nor are husband and wife obliged to generate offspring positively, but it is sufficient that they do not hinder it positively or kill the offspring” (Wernz-Vidal n. 521). De Smet thus expresses himself: “Nothing prevents on the one hand that reciprocal matrimonial consent, or full mutual power over the other’s body be given, and on the other, that the engaged couple agree between themselves and promise by a distinct act not to use the right they have, in order to preserve chastity. What is excluded is not the right to use this right, but only its exercise” (De spons. et matri., Third ed., n. 156, note 2). While this opinion, according to approved authors, as regards the agreement made by the engaged couple is to be held as common teaching, nevertheless, the authors are not of one mind if the pact not to exercise this right is bound to the consent as a condition sine qua non. Whatever the outcome of this question, the matrimonial contract cannot in this case be declared null, because the question of law is not certain (On this subject cf. Cappello, De matr., Third ed., n.). But, notwithstanding the matters explained above, the following must be added: as in determined circumstances, the firm and definite will not to fulfill can be a sign of defect of will to contract and oblige oneself (this defect must be however demonstrated in another way), likewise the serious and definite will not concede in any way or at any time the right to common life or mutual help, can be a sign more or less well-founded of the lack of intention in the contractant to concede to the other party the principle right over the body, although from this sign alone there can never arise the moral certainty of the lack of will to contract matrimony and to oblige oneself.

26. — From what has been said the following must be concluded. As the right to life in common and all mutual help is in its origin intrinsically dependent on the principal right to the acts of generation and not vice versa; and as in matrimonial rights there exists a determined order, and a determined dependence: likewise must it be said of the ends of matrimony — to which these rights are ordered and in view of which they are conceded by nature — that by reason of their origin they are arranged in a given order and connected between themselves. After having determined the principal and primary end of matrimony, the Author of nature gave matrimony, as an institution of nature, a secondary and complementary end, so that in and by the same institution called marriage, there could and must be satisfied that primary end in a suitable manner.

27. — By way of a corollary it may be added that the well-known definition or, more to the fact, description, which Modestinos gave of Matrimony: “Matrimony is the union of a man and a woman in a lifelong union, the participation of divine and human law” (Dig., lib. XXIIII, II, De ritu nuptiarum, lib. I, Regularum), groups together the elements, essentially constitutive and naturally consequent, without clarifying the order and the dependence between them. Therefore, it is not possible to study the ends of matrimony from this famous description of matrimony, without proceeding with caution and allowing room for necessary distinctions. In reality, as it has been noted above, as in the matrimonial contract “the right to the body” and the “right to aid” are not coordinated on the one plane but remain between themselves as the principal or super-ordered object and the secondary or subordinated object, so the ends as well, corresponding to the rights, are not equally principal or coordinate, but one is principal and the other is secondary and subordinate.

28. — b) The order of dependence and subordination which is described here is not only found in the origin of the secondary right, which is destined to the attainment of the secondary end and which assures this attainment but the same order is pointed out when the marriage is considered in facto esse.

Every man, indeed, being of his very nature a “social being,” needs the help of his fellow man. He finds this help inasmuch as he is a member both of human society in general, and of a determined civil and domestic society in particular. In this common help of all men, there must also be considered the help and complement which one sex (even without any carnal affection and activity) receives from the nature of the other sex. Human society is formed of men and women who exert a reciprocal influence. But this common help cannot constitute the finem operis of matrimony. To constitute this, it must be further determined by a specific element, whence it appears why “mutual help” was assigned to matrimony by the Creator as its finis operis. This specific element again is and must be in relation to the primary end and to the principal right. Hence husband and wife, by the very nature of matrimony, are bound to the primary end of this institution, because, by matrimony, they acquired the right and destination to become “authors of a new life,” procreating and educating children, even if in fact this is not verified.

But to satisfy in a due manner this specific destination, they need a multiple reciprocal help, and that not only as regards generative activity properly so-called, but even as regards the primary end in a complete sense, that is, taken both actively and passively. Indeed, nature desires that those should become “the authors of a new life” who are burdened by numerous demands of nature and life, yet adorned with human dignity. Such being the case nature aids this principal right with various assistances and life in common. This specific note of mutual matrimonial aid, which emanates from the innermost structure of matrimony, is also had in those marriages in which husband and wife do not wish or are unable to reach effective generation. What the Creator placed in natura rei, namely in marriage, does not depend on human will nor is it abolished by an external impediment.

29. — This specific mutual matrimonial aid added to the institution itself of matrimony comprises directly only the aptitude and the destination for every necessary help, assured by means of the transfer of the right properly so-called to such help, and not the actual assistance in itself. On the other hand, however to contract a valid marriage the transfer of the right to such help is not required (cf. n. 24): thus it appears clear that there can be a true marriage, even if husband and wife in reality do not enjoy this assistance which nature intends to give to matrimony. It is, moreover, apparent, why the actual use of mutual aid is not by its nature reserved to the service of the primary right. Mutual matrimonial aid is given by nature rather as a comfort to the person of husband and wife, inasmuch as they are destined to become, not in any kind of way, but in a suitable and worthy manner, “the authors of a new life,” by whom so sustained by due help, the generative activity itself as a result is favored. Indeed, if the persons who generate are placed in a safe position, both them. selves and the children, as regards life’s difficulties and necessities (which grow further still with the birth of children), then the generative activity is well founded for by that fact. Hence it is clear that every reciprocal help, which emanates from marriage without damage to the primary end, is contained within the limits Of the secondary end, and, because of the help and comfort which it gives to the person of husband and wife, it possesses a specific attitude, destination and subordination to the primary end (notwithstanding a certain relative independence which, according to what was said, belongs to the secondary end ).

30. — The matters spoken of up to now of the secondary end of matrimony, considered in facto esse can be thus briefly summarized.

1° The destination and corresponding right to “mutual aid” derive from the nature of and from God’s will, and constitute its secondary finis operis. Therefore they can never be wanting in a true and perfect domestic society, nor are they ever frustrated as long as there exists the marriage itself With it primary end and its principal right.

2° The “mutual assistance”, considered as a secondary end of matrimony in facto esse, is called a dependent end, subordinate in respect to the primary end, since it was an addition made by the Creator to marriage, in view of the primary end. But it is an adjoined and nonconstitutive element ab extra only by reason of the primary end, but not in respect to marriage itself, as if it were an extra-matrimonial end; it is an “intramatrimonial” end, although not of the same degree as the primary end.

3° The aptitude and the right to mutuum adiutorium are not restricted to generative activity nor do they regard it in the first place, but rather they regard the persons who generate, inasmuch as these persons, by the marriage contract, are destined to be able to become authors of a new life.

4° The secondary end has a certain independence, in that in the person of husband and wife it can be verified and brought to effect in those cases in which either temporarily or perpetually the accomplishment of the primary end is impeded. The reason is that the mutuum adiutorium (and equally so the right to it) does not constitute an essential part of the primary right and the primary end. It is rather extra essentiam of the primary right and the primary end, though it be something naturale consequens of it and properly called matrimonial right.

5° Whoever separates the matrimonial mutuum adiutorium taken in the widest sense, from its intrinsic subordination to the primary end not only offends objective truth and the intention of the Creator Himself, but necessarily opens the way to disastrous consequences.

(Discussion of the fact.)

III. — Discussion of the inconsummatio of the marriage. — The Tribunal’s conclusions.

Original: AAS 36 [1944] 179–200: http://www.vatican.va/archive/aas/documents/AAS-36-1944-ocr.pdf#page=179

English Translation: Papal Teaching, Matrimony, Benedictine Monks of Solesmes, tr., Michael J. Byrnes, Boston, Daughters of St. Paul, 1963