Medieval Church In Western Europe Marriage Law, Theory And Practice

This dissertation, which bases on the studies of Chinese and overseas scholars, examines the marriage theory and practice of canon law in medieval Europe. From the perspective of theory and practice, it deals with the marriage formation, nuptial process, matrimonial impediments and the dissolution of marriage of medieval canon law, which borrows much from Roman law and Germanic law on marriage. This dissertation is divided into seven parts.The introduction sketches out the studies of the classical canon law.Chapter I outlines formulation of the five classical works in classical canon law, which includes Decretum by Gratian, Decretales Gregorii IX by Raymundus, Liber sextus, Constitutiones Clementiae and Shappuis' Extravagantes communes. It also summarizes the sources and literature of the Canon law——glossa ordinaria, lecturae, summae——and decretists and decrtalists. In addition, the chapter treats the formulation of the marriage theory and the jurisdiction of canon law.In chapterⅡ, I turn to the marriage formation theory in medieval canon law, initiating from the rules of Roman law and Germanic law. The consent between two persons play decisive role in the marriage formation in canon law. Therefore, only the exchange of word of the present consent, no ceremony, no witness, even no parents or feudal lord's approval, forms a valid marriage. Furthermore, the future consent followed by intercourse also constitutes a marriage. Nevertheless, the marriage formation theory is challenged by the old marriage customs. The medieval people usually regard what the church consider a valid marriage an invalid one. The jurisdiction of church court is also rejected by the traditional ideas. Some people think that they can manage their own marriage affairs without the church interference. What constitute a marriage is ambiguous in practice. As a result, many actions in church court are involved in the enforcement of a marriage.ChapterⅢconcerns the nuptial process. Compared with the betrothal of Roman law and Germanic law, canon law gives it more significance, and regard it the future consent to be married. Betrothal must be enforced unless there is an impediment. Although the church encourages the people to perform the ceremony, it is not necessary for a valid marriage. Even if no people witness the exchange of consent, the spouses'agreement is sufficient for a marriage. As a result, many people did not perform the ceremony in accord with what church rules. These marriages are so-called clandestine marriage. Many factors contribute to the clandestine marriage. The most important reason is that the church regard the clandestine marriage is a valid one.Chapter IV treats the marriage impediments. There are similarities between Roman law, Germanic law and canon law. Canon law recognizes the validity of the marriage between free men and slaves, which break away with the rules of Roman law and Germanic law. It demonstrates that the Christian doctrines, all men are equal and marriage is a sacramentum, are working. In canon law, the marriage between Christian and Jews and the cleric marriage are forbidden. Concubine is opposed by canon law. In practice, few marriages are dissolved for the consanguinity and affinity impediments. Divorces by coercion are unusual. These phenomena show that canon law is strictly abided. Maybe it ascribes to church court strict proof rules.Chapter V deals with the dissolution of marriage. In Roman law and Germanic law, if there is good reason, the marriage can be dissolved. Those who dissolve marriage without good reason can get penalty. But the marriage can be dissolved. Although the marriage theory of canon law is framed on the Roman institutions, they differ with Roman law. The essential difference lies in that the marriage is indissoluble in canon law, because it is the sacramentum as the baptism. Divorces are not permitted except for the adultery. If one spouse is alive, the other is forbidden to remarry. In practice, there are 3 ways to end the marriage. First, when one spouse is dead, the other can remarry. The second is divorce a mensa et thoro, the marriage bond remains, they cannot remarry. The third is divorce a vinculo, it regards that the marriage is annul from the beginning. In practice, there are some cases involving the remarriage after partner's death. The cases of divorce a mensa et thoro due to force are uncommon. The divorce a vinculo cases bringing to church court are usually multi-party suits. The suit is a three-cornered affair, with two or more plaintiffs and one defendant, all claiming a valid contract of marriage (usually a clandestine marriage) with the same person. It is a bigamous marriage in the modern sense. The number of multi-party suit is substantial. But the absolute amount of the divorce cases is small. Most of them end by compromise.The last part is a conclusion. It concludes that the medieval canon law is systematical in both legislation and jurisdiction, and it has both inheritance and innovation. Basing on the Roman law and Germanic law, Canon law incorporates many rules of these two laws. Canon law simplifies the formation of marriage by only stressing the importance of free agreement. It regards the marriage both a contract and a sacramentum, which leading the marriage to an indissoluble bond. In practice, the marriage theory of Canon law is implemented in some parts of Latin Europe. The church court is rapid and flexible in dealing with suits. But not all descriptions in the law are abided. Many factors are influential to marriage. Though Canon law takes an important step toward free marriage, which founded the affection marriage, it can not shape a marriage alone. Other elements outside the law, such as the political and family benefit, the economic status of the persons, also have an influential effect on marriage.