2. Antecedents in the ancient civilizations
3. Marriage in Canon Law
4. Civil marriage
5. Similarities and differences matrimonial
The aim of this study is to establish the relationship between two legal regimes that quintessential marriage have been regarded as polar opposites even when they have the slogan to make way for the formation of a family: it does not matter if we speak of civil law or religious marriage, as conceived Portalis and others, agree on some items characteristic of marriage, which will be disaggregated and analyzed in detail later.
From ancient times, marriage has been part of human consciousness as a social as it is, the man must have been part of a family and even as Belluscio points out, the origin of marriage is linked to the family, persist to this day the problem that arises from this process was ignored as historical – social.
While each culture has its peculiar way of understanding marriage, it is clear that this has been a historical development – geographical very important: from ancient Rome to our present-day Mexico from east to west, the marriage was and is one of the topics most studied and least understood of human knowledge about the complexity that represents the many manifestations as comparing cultures in the world, why discuss some of the major cultures around the world, while not directly gave rise to canon law or civil law, if a positive influence (do) or negative (what not to do) with respect to this issue. The people influenced the Hittite Babylonian and Assyrian, coexisting with the Jewish culture these in turn was contemporary Roman law, influencing these to Germany and the Spanish, who immediately came to New Spain and our Mexican civil law, and are coexisting with canon law arising in Europe. Being so long the subject, this study will be implemented to establish the similarities and differences between marriage as an institution and marriage as a sacrament, and the consequences arising from their nature. Similarly we will analyze the historical aspects that influenced the marriage (canon and civil) as we see today.
2. Antecedents in the ancient civilizations
As had already been treated, marriage despite having similarities between different peoples, each of them gives a particular meaning to it, for example, in Babylon, marriage was a contract that reflected the commercial nature of the people, infused saw the marriage of economic factors. For the Hittite people had similarities with the previous marriage, was the most used system of monogamy, but polygamy was a sign of high status as among the Assyrians, differing from other Near Eastern cultures as it does not limits the power of man over his wife and daughters
For the Jewish people marriage is the power characteristics of man over woman who takes the submissive role against his parents and then to his esposocuando marries, with this add-creator of life, and fertility as a blessing from the Lord, attributing to the Jewish woman good qualities of weakness, submission and prudence among others.
“Manis et femine matrimonium conjunctio est et consortium omnis vitae divini et humani juris communicative.” In this way was defined by the Romans of the time Justinian. For these people, marriage was always monogamous, come to respect this in the conspiracy, in the same way were covered betrothal, which was the request and promise of future marriage as between future spouses or between their paterfamilias. Although there was no formality to celebrate the marriage, it was considered a factual situation, you just called marriage and the requirements were:
* Puberty, that in classical law does not require a specific age, but in the Justinian is seven years old.
* Consent of paterfamilias or of the parties if they were alieni iuris
* Who had the ius conubium, or right to contract marriage validly
* That there was no relationship in a straight line, side-by guardianship, curatorship or between kidnapped and kidnapper.
Just as there was nupciae iustae the IV table provided for women who lived with her husband within a year without leaving your side for more than three months, will fall into its domain by adverse possession.
In Germany, ehe B”urgerliche states that a man can not marry before the production of adulthood, a woman can not marry before the age of 16, and an impediment to getting it from relatives in a straight line and related and between people of whom one has had sexual community with parents, ancestors or descendants of the other (art. 1310 of the German Civil Code). The woman takes her husband’s name, and both the right – duty to give and receive food
3. Marriage in Canon Law
Gangi Italian jurist, offers the most comprehensive definition of what marriage is for canon law “Il matrimonio della donna e dell’uomo el’unione per formare a legitimate famiglia. Deratura and Union stabile per Tutta the coniugi dei vitta, sorta form e secondo nelle norme you Stabilite della legge, per il soddisfacimentob Bisogni sessuali dei loro, per the procreazione, la llevamento eleducazione della prole, nonch assistenza per la luro reciprocal. E a union and doratora stabile, e come tale that does distinguish da qualsiasi altra temporary union, a union ed e che ha per fine the constituzione di famiglia legittima one, and if distngue esso dal Percio concubinage. ” As we can see, this definition contains the essential elements of the subject matter.
There are many conceptualizations of marriage as authors have, however, all taken as elements derived from its sacramental nature, and as rightly mentioned Goffi believe that marriage is a sacrament, is to believe that transforms a natural situation in a state of grace, thereby providing the means to live daily in an appropriate way to provide it with two types of grace: (a) sanctifying grace, towards being a sacrament of the living, and (b) sacramental grace, which facilitates compliance husbands of one’s duties your state. All this is summarized by Escriva when he cites “marriages have been grace-the grace of the sacrament, to live all the human and Christian virtues of coexistence, understanding, good humor, l patience, forgiveness , the delicacy in their mutual relations. The important thing is not to give up, do not let them dominate the nervousness, pride and personal prejudice. If so, the husband and wife should grow in interior life and of the Holy aprenmder family to live with refinement by a human motive and supernatural at the same time, the virtues of a Christian home. ”
As a result of the sacramental nature, marriage canon there are two main characteristics: unity and indissolubility.
The first of these has its theological principle in the bible “a man leaves his father and mother and be united to his wife, and they two become one flesh ‘, develop more fully in the Council of Trent unit that defines marriage as “the exclusive union of one man and one woman.” The above principle is not a whim canon, is the regulation of what could be a cause of estrangement between the spouses, so that the family is threatened, and that polyandry affects the question of paternity and its obvious impact on education of children, polygyny while One side hurts the interests of marriage and family peace and the intimate emotional bond between spouses.
Still, there are 720 worldwide polygamous cultures, of which 716 practicing polygyny and polyandry are only four.
Despite being the unit (and the indissolubility) characteristics of sacramental marriage, countless cultures exist in the same feature, it is nn evidence of the Chinese proverb, the typical oriental way, teaches us that both men and women are necessary to raise a family, where as A. Tennyson said “the cause of the woman is the man: both are raised together or succumb.” In conclusion, unity of marriage is understood in two senses: one double and one single person after this, where “the polarity of man and woman under mutual aid or assistance, ie subsidiarity”
The second consequence of marriage is indissoluble sacrament, pudiendola find explicitly in the definition of that which is offered in the canonical code “the matrimonial covenant, by which a man and a woman establish between themselves a partnership of all life, ordained by the very nature to the good of the spouses and the procreation and education of children, was raised by Christ our Lord to the dignity of a sacrament between the baptized “, which takes the view that Latinos were” viri et mulieris individuam coniunctio consuetudinem vitae continens “while Modestino, another Roman jurist, he conceived as” viri et foeminae coniunctio et consortium omnis vitae, divini et humani iuris communicatio ”
As you can see, the marriage since ancient times and denoted the Prohibition to be dissolved, but for the Catholic Church this takes no real value until the beginning of the Christian era, when questioned by the Pharisees, Jesus of Nazareth answered “They have not read at the beginning the Creator made them male and female and said, The man shall leave his father and mother and be united to his wife and they become one flesh So they are no longer two but one flesh. Well what God has joined together, no man separate “teaching that Pius XI in his encyclical Casti Connubii extends and confirms saying that” marriage is not the work of men, but God, and therefore its laws are not subject the human will. ” So that religious marriage is not valid but can be dissolved by the death of a spouse, except time HECA unconsummated marriage, or when it occurs between two unbaptized persons to promote the faith of one of them was baptized after, as well as in the case of the Franciscan rule, which accepts the dissolution of marriage when one spouse wants to enter religious life, provided that the other has not remarried.
The requirements to be met for entering into marriage are, therefore, that at least one spouse is baptized in a state of grace, to carry out the process of preparation for marriage (examination of the spouses and proclamations or reprimands ) and freely express consent obviously. With regard to settling are usually classified as impaired
* Age. “Inability of the man and woman to marry before the age of sixteen and fourteen, respectively” (c. 1083.1). Previously, the impediment was conditional on the completion of intercourse, at present the violation of this canon invariably nullify the marriage. This impediment is of ecclesiastical law and natural.
* Impotence. “Inability to have intercourse” (c. 1084.1). This impediment, through history has been subject to multiple variations on the part of the canon, but in 1983 he gave the classification and enumeration of the kinds of anomalies that do impotence and helpless men and women, classified into background and Therefore (according to their appearance on marriage), temporal and perpetual (depending on whether it can be eradicated by legal means), absolute and relative (depending on if intercourse is not possible with a spouse only, or with any other person), organic or functional (if it depends on anatomical question or disturbance in the function of them, dividing the latter into physical and psychic). However, to constitute an impediment of impotence should possess three characteristics: It is history, perpetual and true.
* Ligamen. “Inability to remarry while remaining the link from a previous marriage, even if not consummated” (c. 1085). No waiver may cease, but only by death.
* Disparity of worship. Mixed marriage, ie, in which one spouse is not Catholic, is regulated by canon 1124 and 1129, is an impediment dispensable by the local bishop (c. 1125) where two requiatos: 1) the Catholic spouse is declared ready to avoid any danger to the faith, and promise to baptize and educate children in the Catholic faith and 2) that the unbaptized are aware of the promises of the other spouse, and to comply with an instruction on the purposes and properties of marriage.
* Holy Orders. “It’s the inability for not able to marry who have received the priestly ordination” (c. 1087). It is based on ecclesiastical celibacy, however, may be dispensable for the Roman Pontiff (c. 291)
* Vote or religious profession. “Impairment that affects those who have made a public vow of chastity in a religious institute (c. 1088). As above, the waiver is reserved to the Pope.
* Rapture. “Violent removal or retention of a woman, intending to marry her” (c. 1089). It originated in the Council of Trent, and to stop the impairment must attend three elements: 1) separation of women from her abductor, 2) placement of women in a safe and free, 3) the safe and free calificactivos make regarding the place and not the mood of women abducted.
* Crime. (C. 1090) Impairment consisting commit murder (by itself or by proxy) against one’s spouse or against those with whom you want to marry.
* Relationship. By consanguinity (c. 1091): straight line and collateral to the fourth grade. Affinity (c. 1092), ie between the consanguineous and consanguineous one another. Public Honesty (c. 1093) when trying to marry among related, but as a matter of concubinage. Legal (c. 1094), when it involves relationship between adopatante and adopted, and among his brothers.
As a result of the sacramental nature of marriage, it can not be dissolved for reasons pasteriores to the (divorce), only can be declared those marriages void from its inception were invalidity because they were not fulfilled all the requirements required by canon law .
4. Civil marriage
By 1852, canonical marriage was sufficient to form a family with that derived from a valid marriage to give her strength, however, then President Benito Juarez Garcia decided to take power in the Catholic Church, instituted civil marriage, same born in Holland in 1850, rather than as a means of reducing the power, there to keep watch over religious dissidents
From the crudest conceptions to complex, civil marriage is the legal form (for State) to start a family, which must meet certain requirements that the legislature has called elements of existence and validity, the first of them ( of existence), are meant to rise to the legal life, while the latter effects fulfill itself, making the revocation.
Elements of existence: to say that a civil marriage is such, must be made with three elements: will, lawful purpose and solemnity. The will or consent must be expressed explicitly with a “yes” because otherwise, will be affected in a manner that induced violence to coerce the freedom of choice would affect the existence of marriage. In order to express freely the will of marriage, should be the person consents to the subject matter, from the beginning of the civil regulation of marriage, there are two main consequences of the marriage act: to found a permanent family or community life, and mutually support should be provided. As an institution regulated by the state, must be complied with the formalities that the law requires:
Elements of validity: the difference between annulment and divorce is precisely the timing of the acts that cause it, the divorce is by subsequent events, while the void, just finding an absence of what was never valid. One of the secondary purposes is procreation, which would be impossible if the reproductive capacity were constrained due to age, why the civil code states that the minimum age for marriage is 14 years for women and 16 years for men. The will of the parties must be absent of defects of the will, they can be reduced to five cases: Error in identity fraud, bad faith, violence or intimidation and injury.
The civil code states that the impediments to marriage are valid: lack of age of consent who is to exercise, relationship, adultery between intending marriage, attempted assassination of former spouses, force or grave fear, drunkenness common, incurable impotence, idiocy or imbecility, marriage subsisting at the time of remarriage
Failure to fulfill these points, the original marriage is void, therefore must declare null and void by a judge of the familiar.
At the time of marriage is changing marital status to married, creating a series of legal implications with regard to the other spouse, property and children.
* The Constitution of the United Mexican States (CPEUM) governs the right of each couple to decide the number and spacing between them, should decide jointly taking into account the ideas and operant behavior.
* The cohabitation, even when not treated as a consequence, it does derive from the daily interaction that gives rise to mutual support between spouses should be.
* Right – duty sex. Sexuality is part of human nature, not as a survival instinct, but consciously and not always having the purpose of procreation.
* Mutual Aid. Is the natural consequence of the above, and refers to the moral and financial support (food), between them and the children.
* Loyalty. It refers to sexual exclusivity and between spouses, even if not enshrined in law explicitly mentions the adultery as grounds for divorce as a crime.
* Legal equality between spouses, which shall be given in economic terms and with regard to procreation.
With regard to children. The rights and obligations of spouses with children are studied by the civil institution called affiliation.
With respect to the property. There are two types of schemes in respect of the goods of marriage, community property, separate property and legal system, which in the state of San Luis Potosi is the latter.
5. Similarities and differences matrimonial
Civil marriage is considered an institution, a legal act provided a legal act mixed and a regular contract or accession while for canon law is a sacrament. It follows the consequences arising regarding the nature, regulation and supervision thereof.
The fact that a religious marriage is sacramental nature determines that it is dissolvable, while civil marriage is a contract sui generis, and thus has the potential to be concluded by mutual consent or liability of a party (divorce .)
Both schemes consider the possibility of annulment, but while one of decrees family court judge (civil), another does the Pope (canon). In both have the same legal consequences, however the causes that give rise to invalidity are different, as the canon law gives priority to psychiatric disorders as causes of it.
Both have the same goals even if the justification is, in some cases, different. Consider mutual aid, procreation, cohabitation and permanent community of life. While civil law allows birth control and the decision of the number and spacing of children, the canonical code it fails, it believes, based on the Genesis, that God will give the children to the extent that he wants.
Since marriage from two points of view each other, will address two theories: natural law and positivism.
Natural law theory in that a religious marriage is a sacrament, the same as for the occasion can be defined as a “mystery” or a “sensible and effective sign of grace, instituted by Jesus Christ, to sanctify our souls,” and if we that for the canonists marriage is equal to the union of Christ with his Church, then “The Church is a Christ like a sacrament or sign and instrument of communion with God, and unity of mankind” that is, according to St. Thomas Aquinas, is “a sign that produces what it means.”
In conclusion, canonical marriage is iusnaturalist because it was an institution created by God and necessary for all men.
With regard to civil marriage is governed by positivist, because the civil laws are sanctioned by the state and therefore have enforceability must be satisfied as it is against the law, a principle enshrined positivism
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