Some object to the incorporation of formal contract into natural marriage. They say that, since marriage is prior in time to the state, state sanction by contractual enforceability is an ahistoric superfluity. In their view, the state should get out of the matrimonial contract business altogether and leave natural marriage in its natural state.
Marriage must be ratified by formal contract for the same
reason that private contracts must be made under legal conditions. People can
make an agreement to do anything they want any time they want without the
approbation of the law, but with such approbation it becomes legally enforceable,
thus adding an external, communal element in which the agreement must be
respected and an additional guarantor of its duration.
A fortiori the matrimonial contract must it be made in a context wherein the “’til
death do us part”—an essential property of marriage as “indissolubility” (cf. Canon
1056, 1983 CIC)—becomes legally enforceable, for two persons could agree to
totally give themselves to each other for the rest of their lives and thereby constitute
a natural marriage, but without the element of legal enforceability, there is a
de facto get-out-of-jail-free card that precludes the full realization of
the lifelong irrevocability of the matrimonial contract, arguably impeding
authentic matrimonial consent.
Then there is the inherently communal element of marriage, since it is upon
marriage that the state and all other communities are founded. That the
matrimonial contract takes place in the context of a legal community in which
such contract has binding force and judicial enforceability corresponds to the inherently
communal nature of marriage.
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