Betrothal of the Prepubescent
A father contracts a betrothal for a minor son; when he matures, it does not bind unless he consents to it.
Hormisdas to Bishop Eusebius.
Your Fraternity asked us that if a father who wants to contract marriage for his adult son can do so if the son will not consent to the betrothal. We say that he cannot if the son does not consent in some way.
But if the son is not yet an adult, and his will cannot be known, his father may give him to whomever he wishes in marriage, and when the son reaches maturity, he must fulfill this obligation entirely.
Two prepubescents, or a prepubescent and one older, are not to be married, except for the sake of peace.
Where there is no consent [cf. C. 30 q. 2 c. 1]. (And following:) By the authority of this decree, we strictly prohibit for the future that either or both, who have not arrived at the age determined by the laws or the canons, be joined in marriage; unless there is a very urgent need that the union be tolerated for the sake of peace.
One reaches majority for marriage when one has the bodily capacity and can procreate children.
Pubescents are called from ``pubis,'' that is, they are named from the pudenda of the body when these places first bring forth soft hair.
Some think puberty depends on age, that is, when a boy has completed fourteen years he is pubescent, even when he becomes pubescent very late. But he certainly is pubescent when he shows puberty from the appearance of his body and is able to procreate. Girls are pubescent who can bear during the years of puberty.
The impediment of public propriety does not arise for minors below the age of seven, unless there is consent after the age of seven, whether by a prepubescent or one in puberty. Subsequent affinity dissolves preceding betrothal for a future date.
We have received Your Fraternity's letter from whose import we gather that a certain man, a parishioner of yours by the name of A., when he was of mature age, betrothed a certain girl in her cradle. With the passing of time, A. had relations with the girl's mother and took her as wife. You wondered whether this marriage should stand and so asked our counsel about it.
To your question we reply as follows: If the man took the girl's mother as wife before the girl had completed her seventh year, you may dissolve that marriage and permit the man liberty to keep the woman as his wife. Such betrothals made in the cradle are null.
But if the man took the girl's mother as wife after the girl had completed her seventh year, do not hesitate to promulgate a decree of divorce between them, since betrothals after this age are approved by custom, nor may you permit the man to take the mother's daughter as wife.
Betrothals void through defect of consent do not create an impediment of public propriety. Other betrothals do, even if they have been lawfully dissolved.
There has come before us a nobleman W., the son of G., with a letter from you. From its import we gather that he had betrothed a certain nobleman's daughter while she was a minor. She did not consent to this later, and before she had reached marriageable age, a divorce was decreed between them. Time then passed, the girl's father died, and W. united himself in marriage with her mother.
You refused to permit this act, and so solicitously warned him to send her away. Then, because he refused to heed your warning, you imposed on him the bond of excommunication. At length, you received from him a pledge to come before us and strictly observe whatever we decreed on this matter. Then you, at our command, pronounced him free and sent him to us with your letter.
In our presence W. has explained to us that he had betrothed that girl when she was under the age of seven, and that later, before she came to marriageable age, she absolutely refused to consent to take W. as husband. So, she came before you, with W. and her father, in whose power she still was. When you heard from the girl's own mouth and learned from her and her father that she did not want W. as her husband, you immediately pronounced in plenary synod that he was publicly free from this betrothal.
Some years passed, and the girl's father died. Then, our most beloved son in Christ, Henry, the king of the English, gave the girl's mother to W. as his wife. In order to quiet discords that had arisen between his blood relatives and the woman's blood relatives. W. received her and solemnly betrothed her. Then, he took her in marriage without opposition from the Church and procreated children from her. The girl herself was married to another man.
Although your letter says that this girl was a minor when the betrothal occurred, yet it makes a difference whether she was a minor close to the age fit for marriage or was under seven. So we by apostolic writing command Your Fraternity to diligently investigate the truth of the matter. If you determine that the girl was not yet seven when she was betrothed to W. and afterwards did not consent to him, and that you freed W. from this betrothal, command that the marriage between W. and the girl's mother to be observed inviolably. Announce that their offspring are legitimate, for, as Your Discretion is not ignorant, betrothals and marriages cannot be made before the age of seven, especially if consent afterwards is not given.
If the girl had completed her seventh year before [this] betrothal, it would rightly seem indecent for the man to take a mother whose daughter he had betrothed, even though the man was rightly freed from his betrothal to the daughter because she would not consent to him.
But, if it seems to you that by his remaining with the girl's mother, the disputes that arose between their blood relatives which are now quieted will be prevented from breaking out again, you can overlook this and tolerate it with equanimity. If, he has taken her as wife with the Church's permission the children he has from her may not be prohibited from inheriting from either their father or mother.
If a prepubescent, betrothed and handed over, asks permission to marry another who is in majority, she is not to be heard if the man swears that he has known her. Nor is she to be heard if she has not reached majority, but has been shown to be close to puberty. Betrothal with a prepubescent over the age of seven gives rise to the impediment of public propriety.
Alexander III to the Bishop of Norwich.
Your letter reports that a certain girl below marriageable age had been promised as wife to a certain man, and that she was given, her parents asserting that she was of lawful age. when she arrived at marriageable age she asked permission to marry another, asserting that she had never consented to this husband.
The man asserts to the contrary that, although the girl may not have reached her twelfth year when she was given to him as wife, she was close to it, because he knew her by carnal intercourse. She says that she did not have intercourse with the man. Hence you have asked us whether she can marry another.
We reply to your question as follows: The Decretum [C. 33 q. 1 c. 3] explicitly says that, if a husband claims to have known his wife, and the wife denies it, the man is presumed to be telling the truth. Therefore, the man, who says he knew this woman, is to be believed if he testifies to this under oath.
If, being around eleven or twelve, she was almost of age, and was betrothed with her own assent at the will of her parents, was blessed, and was known by the man, she ought not to be separated, especially since her parents claimed that she was of lawful age.
But, if the girl was betrothed below marriageable age or close to that age, and blessed and given, it is not lawful for the man who betrothed her to take any of her blood relations as wife. For it is not right for one betrothed to join with his betrothed's blood relations [in marriage].
If those older than seven contract betrothal, neither can break it before puberty. So for the first. The one under puberty can later take another. So for the second. But, if at the time of contracting one has already reached puberty, that one may not break the betrothal, although the other may. So for the third.
Alexander III to the Bishop of Bath.
When a betrothal is contracted below the age fit for marriage, and one or both object before reaching the age for contracting marriage and demand to be separated, such are not to be heard.
But if the same betrothal had been contracted when one had reached puberty and the other was still below it, and the minor objected after coming of age and refused to consent to the other, they can be separated by a decree of the Church.
But a woman who has reached marriageable age and marries a man not yet of age for contracting marriage cannot later reject or divorce him since she has already consented to him, unless perchance the one she married absolutely refuses to consent to her after he reaches lawful age.
Prepubescents contracting betrothal may not be separated before puberty, but after puberty they may if they reject the betrothal, unless they have had carnal intercourse.
Your Discretion has asked us whether those joined under the name of marriage, before marriageable age, or before one of them arrived at an age fit for marriage may lawfully withdraw from the marriage.
We reply to your inquiry as follows: By the authority of the Holy Fathers, those below marriageable age cannot give conjugal consent and so must wait until lawful age. Then the marriage will either be confirmed or, if they do not wish to stay together, they will be separated, unless they have already had carnal intercourse, because this can sometimes occur before puberty.
But if the same betrothal . . . , as in the previous capitulum.
Minors capable of matrimony are bound by the contract of matrimony, unless they were coerced.
Some are betrothed while minors and are given and joined in marriage, but, with the passage of time, they seek a divorce, alleging their minority or the force applied to them by parents.
To you inquiry about this in your present letter, we reply: If they were so near to that age that they could have each other by carnal intercourse, they should not be separated from each other by reason of minority if one has consented to the other, for their malice will supply for age.
But, whatever their age, they can excuse themselves because of the force inflicted on them, unless they gave consent after being forced.
[And that . . . . (Cf. X 2.23.11.)]
A contract before puberty, even with attempted carnal intercourse, does not create matrimony.
We have received, transmitted to us by Your Fraternity, testimony in a marriage case between a young man H. and a woman G. Having diligently inspected the testimony, and more fully understood it, it plainly shows us that the young man had not reached his twelfth year when he took G. as wife. And although, as both confess, he attempted to have her sexually, yet the woman believes that she remained a virgin.
When he arrived at the age of fourteen he left the woman. Now that he is seventeen, she wants to claim him as her husband. The man at seventeen refuses to receive her. You did not wish to give sentence before consulting us on this case.
Therefore, to your question, we reply as follows: If the woman cannot prove by competent witnesses that after the age of fourteen, or at the end of his fourteenth year, the young man consented to her, you can and ought to free him from the woman's claim, having received his oath that, when he came to lawful age, he did not consent to her as his wife. You ought then to grant both permission to make other vows.
If an unwilling adult contracts betrothal with a minor, she is not bound to take him until he reaches adult age.
Urban III to the Archbishop of Pisa.
From Your Fraternity's letter we gather that a certain girl of twelve was sworn and betrothed to a certain boy of nine or ten. With the passing of time, by the will of her parents rather than her own, as she asserts, she was taken to the home of the boy's father, and there, protesting and resisting, as you say you have heard from her lips, and forced by the arguments and the threats of the parents, she stayed for a year or more. Then she left and returned home.
Admonished by her mother, and later by you, as you assert, she completely refused to return to him, asserting that she did not, and still does not, want him as a husband. She now asks permission to marry another. The boy, as you letter says, had not yet reached the age of fourteen, nor did he ever have access carnally to the girl.
Therefore, we reply to Your Discretion as follows: If the girl is warned zealously by you to wait until the boy completes his fourteenth year of age, and will not wait in accord with your warning, you may, by our authority, give her the liberty and permission to take another man as husband, in accord with what has been stipulated.
Betrothal contracted with a minor under seven, is validated by mutual cohabitation after the age of seven and creates the impediment of public propriety. It is dissolved, however, by a marriage in the present.
We gather that in your diocese two children, William and Wilhemina, were joined in marriage, the boy being six and the girl seven, and they remained together for three years. But then the girl's father took her from her betrothed and joined her to another man by the name of M., with whom she remained quietly for seven years. He then abandoned her because he believed that she had another husband, the man to whom she was first betrothed.
But the first betrothed, reaching the age of discretion, sought permission from your predecessor P. to contract with another. He took a certain S., the first's cousin, as wife. Although he stayed with her for some time, he did not know her carnally, as he admits, although she asserts that he did.
Wilhemina's father, when he saw her abandoned by her second husband, used force to compel William, whom she had first betrothed, to put away S. (the father's niece) entirely and to return to his betrothed Wilhemina. As it is reported, he then cohabited with her for two years.
You ask us to tell you what to do in this matter. Therefore we briefly reply: Their immature age being an impediment, there was no marriage between William and Wilhemina. After she married another, he could take another as wife, but he took S., who was the cousin of the woman. Whether he had known her or not, he could not live with S. because of the impediment of public propriety. Nor should he return to the first, because she was lawfully joined to another.
(And below:) Since the husband is the head of the wife [1 Cor. 11:2], and William says that he had not previously know S., as said above, he can take another as wife if he wishes, and S. can be joined with a lawful husband. But, after their separation, penance is to be imposed on both for a time, to avoid scandal to the people.
But if it is lawfully determined that he had relations with S. before or after, neither may be given permission to contract while the other is alive. Wilhemina, then, will remain with M. But fitting penance should be imposed on M., who on his own initiative and without a judgment from the Church, evilly dismissed Wilhemina.
One may move that a marriage is null because it was contracted with a minor under seven, but one may give evidence of this impediment to prevent it being contracted later.
Innocent III to C. and P., Sons of the
To dissolve the marriage contract between I., the son of the nobleman Leo [de' Monumenti] and a certain S., the daughter of Matthew [de' Fortebrachi], you proposed before us and our brothers, that, since the girl had not reached seven, no marriage or betrothal could be contracted with her. The blood relatives did not give their assent, which is particularly required in such matters.
Even if they were of sufficient age, and the blood relatives had assented, these persons could still not lawfully contract marriage because of the obstacle of consanguineous descent. The accusation of consanguinity was made on behalf of the girl, and the grades of consanguinity were computed for both the young man and the girl. Since she wished to prove consanguinity by competent witnesses, I. presented a defense in which he attempted in numerous ways to bar your accusation.
His defense has been debated at length by both. Having heard and understood everything presented, and taken counsel of our brothers, we pronounce by interlocutory decree: Neither matrimony nor betrothal was contracted between the young man and the girl because the girl was clearly not yet seven. Therefore, the accusation is not legitimate, since there was nothing which could be lawfully moved. But consanguinity can be moved to prohibit contracting marriage.
Therefore, we assign a deadline, the next Feast of All Saints, to prove this accusation lawfully, observing that defenses have been proposed and will be proposed.
By apostolic authority we firmly prohibit anything to be done to the girl to prevent her from proceeding in this business so long as the accusation has not been withdrawn, or these things proved by judicial process. If, against our prohibition, anything is attempted in prejudice of her, we declare it null and entirely lacking in force.
If anyone using language in the present tense contracts with a prepubescent, for which the deficiency of age is not supplied, their matrimony is considered null, but betrothal is contracted, especially if a dowry has been given.
Your letter presented to us sets out that a certain noble man betrothed his daughter, who was about twelve, to a certain noble man, who gave her a dowry, and both mutually consented. But while the marriage was somewhat delayed, the girl's father went the way of all flesh. When he had passed from human affairs, the girl's uncle joined her to another man in marriage. The one who had first betrothed her contracted with her mother.
Your predecessor, noting that he could not remain with her whose daughter he had lawfully betrothed, promulgated a decree of divorce between them. After the second man, who had taken the girl as wife, died, she married a third while he who betrothed her first was still alive.
They then humbly decided to ask you whether they could lawfully remain together. You, after deliberation, replied that, while the first betrothed was alive, she could not lawfully unite with another. Yet, because your church asked you to consult the Apostolic See about this, you have humbly asked us to grant you a rescript on this.
However, from what is written above, we cannot determine with certainty the girl's age when she betrothed the man, since it says that she was "about twelve.'' Nor can we determine with certainty whether she then had sufficient discretion to compensate for her youth. So we reply to Your Fraternity as follows: If the girl was then of marriageable age and there was lawful consent in the present between her and the first man, lawful matrimony was undoubtedly contracted between them, even if carnal intercourse did not follow.
But if the girl was not of marriageable age when the man betrothed her, and her discretion did not make up for her age, they undoubtedly contracted betrothal, not marriage, even though the man gave the girl a dowry.
Therefore, if, as in the first case, she contracted marriage with him, she cannot rightly contract a conjugal bond with another while he is alive. But if, as in the second case, only a betrothal was contracted between them, the marriage celebrated between her and that other man must be held lawful, provided there was no other canonical obstruction.
[Given at Rome in St. Peter's, in our ninth year, 10 May 1206.]