Canon Law vs. Illinois State Law on Marriage

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Prepared by Fr. Jason Gray, December 21, 2005
Copyright © 2005 by Fr. Jason Gray
All rights reserved

Other persons are permitted to copy, distribute, or display this work with the following provisions:  Reproduction of this work must contain proper attribution to the author.  No reproduction of this work is allowed for commercial purposes.  This text may not be used to produce a derivative work, whether by altering, transforming, or building on this text.  Other permissions to copy, distribute, display, or reprint this work require the expressed permission of the author.  This document is cited as follows:

Gray, Jason A., Canon Law vs. Illinois State Law on Marriage; available from http://www.jgray.org/docs/IL_marriage.html; Internet; accessed 1 January 2006.

              

To whom does the law apply?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
Any marriage in which even one party is Catholic is governed by Canon Law (c. 1059).  Any person who is a baptized Catholic or received into the Catholic Church, and has not defected from the Church by a formal act, must marry according to canonical form (c. 1117).  A Catholic may be dispensed from canonical form for a just cause (c. 1127 §2). The state law on marriage applies to all marriages contracted in Illinois (750 ILCS 5/213).  The law also applies to a person who resides and intends to continue residing in the Illinois (750 ILCS 5/216).

How does civil and ecclesiastical legislation recognize each other?

Civil authorities are competent to define the merely civil effects of marriage (c. 1059).  Marriages that cannot be recognized according to civil law cannot be celebrated without the permission of the local ordinary (c. 1071 §1 2º). The state recognizes the right of a minister to solemnize a marriage according to the prescriptions of a religious denomination (750 ILCS 5/209 (a)).

What makes a marriage?

The exchange of consent by both parties, in the sense of the marital "covenant" (cc. 1055 §1 and 1057 §1). The exchange of consent by both parties, in the sense of the marital "contract."

What are the essential properties of marriage?

The essential properties of marriage are unity and indissolubility (c. 1056).  It can also be said that essential elements of marriage are the good of the spouses and the procreation and education of children (c. 1055 §1).  The marriage between two baptized persons is also a sacrament, which makes sacramentality an essential element of the marriage of the baptized (c. 1055 §2). The essentials of marriage are not defined in state law.  However, a person who enters a marriage deceived by fraud about the essentials of marriage may petition for the marriage to be declared invalid (750 ILCS 5/301 (1)).

When can a person marry?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
Any man and woman can freely marry at the age of majority which is 18 (c. 97 §1). Any man and woman can freely marry at the age of 18.
The minimum age for marriage is 16 for a man and 14 for a woman (c. 1083 §1).  The conference of bishops can establish a higher age for licit marriage, although this has not been done in the United States (c. 1083 §2). The minimum age for marriage is 16 (750 ILCS 5/203 (1)).
However, a minor may marry only with the permission of the local ordinary when the parents are unaware or reasonably opposed (c. 1071 §1 6º).  Pastors are urged to discourage minors from seeking marriage (c. 1072). A minor may marry with the consent of both parents or, in their absence, a judge (750 ILCS 5/203 (1)).  Before a judge gives permission, he must determine that the person is able to assume the responsibilities of marriage and that marriage will serve the parties' best interests (750 ILCS 5/208).

Who is a person prohibited from marrying?

No one may marry any direct ancestor or descendant by blood, i.e. parent, grandparent, child, or grandchild (c. 1091 §1). Same (750 ILCS 5/212 (a) (2)).
No one may marry a blood relative up to and including the fourth degree, i.e. first cousin (c. 1091 §2). Same (750 ILCS 5/212 (a) (2) and (3)).
Impediments of consanguinity in the third and fourth degree of the collateral line may be dispensed by the local ordinary (c. 1078 §3).  This could affect aunts, uncles, nieces, nephews, and first cousins. First cousins may be married if they are not able to have children or are both over the age of 50 (750 ILCS 5/212 (a) (4)).
No adopted child may marry anyone in the direct line of the adoptive family, i.e. adoptive parent, or grandparent.  No adopted child may marry any adoptive relative of the second decree of the collateral line, i.e. an adoptive sibling (c. 1094). Same (750 ILCS 5/212 (a) (2)).
Impediments of adoption may be dispensed by the local ordinary (c. 1078 §1). There is no exception nor dispensation in Illinois for the impediment of adoption.
No one may marry anyone in the direct line related by affinity.  For example, a man may not marry his step-mother, mother-in-law, step-daughter, daughter-in-law, and so forth (c. 1092). Impediments of affinity are not mentioned in Illinois law.
A person who establishes a relationship of public propriety may not marry that person's father, mother, son or daughter.  Public propriety is the public and notorious establishment of common life with another person without the benefit of a marriage (c. 1093). Impediments of public propriety are not mentioned in Illinois law.  Illinois does not recognize Common Law marriages nor any legal relationship between two unmarried persons who live together (750 ILCS 5/214).
Impediments of affinity and public propriety may be dispensed by the local ordinary (c. 1078 §1). Because affinity and public propriety are not impediments in Illinois law, there is no dispensation needed with respect to state law.

May two persons of the same sex marry?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
No.  Marriage is between a man and a woman (c. 1055 §1). Marriage is between a man and a woman (750 ILCS 5/201).  Two persons of the same sex may not validly marry (750 ILCS 5/212 (a) (5)).  The marriage of two persons of the same sex is against the public policy of the state of Illinois (750 ILCS 5/213.1).  Illinois has passed the Defense of Marriage Act and is not required to recognize gay marriages solemnized in other states.

What other impediments to marriage are there?

A marriage is invalid when one of the parties is impotent (c. 1084 §1).  While a person must be capable of consummating the marriage, sterility is not an impediment (c. 1084 §3). A marriage may be invalidated if one party is impotent (750 ILCS 5/301 (2) and 401 (a) (1)).
A marriage is invalid when one of the parties is bound by a previous marriage (c. 1085 §1). A person is prohibited from marriage when bound by a previous marriage (750 ILCS 5/212 (a) (1)).
A marriage is invalid when one of the parties is abducted and forced into marriage (c. 1089), or deceived by malice or fraud (c. 1098). A marriage may be invalidated if one party enters marriage by force or by fraud involving the essentials of marriage (750 ILCS 5/301 (1)).
A marriage is not valid due to the impediment of crime—the murder of one's spouse or another's spouse in order to marry (c. 1090).  The dispensation of the impediment of crime is reserved to the Holy See (c. 1078 §2). The canonical definition of "crime" is not specifically mentioned in state law.  However, a marriage may be dissolved if one of the parties has been convicted of any felony or infamous crime (750 ILCS 5/401 (a) (1)).
A marriage is not valid due to the impediment of holy orders (c. 1087), vow of chastity (c. 1088), or disparity of cult—the marriage of a Catholic and a non-baptized person (c. 1086).  The dispensation of the impediments of holy orders and vow of chastity are reserved to the Holy See (c. 1078 §2). These are not impediments in state law.
The permission of the local ordinary is required before anyone assists at the marriage of transients (c. 1071 §1 1º), the marriage of a person who has notoriously rejected the Catholic faith (c. 1071 §1 4º), or a person who is under a censure (c. 1071 §1 5º). These marriages are not prohibited under state law.
The local ordinary can prohibit a marriage for a time for a grave cause (c. 1077 §1). Marriage cannot be prohibited by a state official if the parties are qualified to marry.
The marriage of a Catholic with a baptized non-Catholic requires the permission of the local ordinary for liceity but not for validity (cc. 1124-1125). Religious affiliation is not relevant to marriage in state law.

Does a couple have a right to marry if not barred by impediments?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
Yes.  Those not prohibited can contract marriage (c. 1058).  The pastor has a responsibility to prepare parishioners who seek marriage (c. 1063).  The faithful are bound to reveal any impediments which they know of (c. 1069). Yes.  The county clerk is bound to issue a marriage license to those who are qualified (750 ILCS 5/203).

What is required for the celebration of marriage?

Before a couple is married, they must be pastorally prepared.  After the marriage, it must be recorded. A marriage must be licensed, solemnized and registered.
Pastors must prepare couples for marriage (c. 1063).  The norms of the conference of bishops must be followed to determine that the parties are free to marry (c. 1067).  Before the celebration of marriage, it must be clear that it will be valid and licit (c. 1066).  It is encouraged that Catholics be confirmed and approach penance and Eucharist before marrying (c. 1065). A marriage license is issued by the county clerk after the legally required information and the signature of both parties has been obtained (750 ILCS 5/203).
A man and woman, at least one of whom is Catholic (c. 1117), may marry according to the approved rite of marriage with adaptations by the conference of bishops (cc. 1119-1120).  A minister with faculties must receive the vows in the presence of two witnesses (c. 1108). The solemnization of a marriage is done by a public official or according to the formula prescribed by the religious denomination (750 ILCS 5/209).
The marriage must be recorded in the marriage register of the parish and the baptismal registers of the parties (cc. 1121-1123). The registration of the marriage occurs with the marriage license is returned to the county clerk (750 ILCS 5/210).

Where may a marriage be celebrated?

A Catholic who marries a baptized person must marry in a church or oratory unless the local ordinary permits otherwise.  A Catholic who marries a non-baptized person may marry in a church or another suitable place (c. 1118). State law does not require a marriage to be solemnized in any particular place within the state.

May a person marry by proxy?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
There is provision for marriage by proxy if permitted in civil law (cc. 1104-1105). Marriage by proxy is not permitted in Illinois.

Who is qualified to celebrate (solemnize) a marriage?

The parish pastor or a cleric in good standing with proper delegation validly assists at a marriage (cc. 1108-1111). Any minister recognized by the Catholic Church is qualified to solemnize a Catholic marriage of any couple in Illinois who have obtained a marriage license.  The minister does not need to be from Illinois.  The state further authorizes judges, retired judges, some county clerks and some other public officials as merely civil officiants of marriage (750 ILCS 5/209 (a)).
With the prior approval of the conference of bishops and the Holy See, a diocesan bishop can delegate lay persons to receive the vows of couples wishing to marry (c. 1112 §1). State law does not require that the minister be a cleric, but only that the minister be recognized by the religious denomination.
If necessary, the minister can be assisted by a trustworthy interpreter in witnessing a marriage (c. 1106). State law does not mention the use of an interpreter.  The presence of an interpreter would not change the validity of the marriage provided that a qualified minister was present to solemnize the marriage.

Who is not qualified to celebrate (solemnize) a marriage?

A cleric who does not have the faculties for marriage by office or by delegation cannot validly assist at a marriage (c. 1108 §1).  A marriage is invalid if one of the parties is canonically impeded from marriage (c. 1073).  A cleric who does not verify the free status of the parties and the permission of the pastor celebrates illicitly (c. 1114). A minister that is disqualified in church law from celebrating a marriage is also disqualified in state law.  Such a marriage is not civilly invalid provided that the couple believed the minister to be qualified to solemnize a marriage in the state of Illinois (750 ILCS 5/209).  The state of Illinois does not recognize any cleric as a merely civil officiant of a marriage.

What responsibilities exist to the ex-spouse and children from a previous marriage?

A person is bound to meet the natural obligations from a prior bond (even if declared invalid) before entering a second marriage.  Such a marriage requires the permission of the local ordinary (c. 1071 §1 3º). A person is bound to meet the natural obligations from a prior bond according to the norm of law, as spelled out in the civil decree of divorce (750 ILCS 5/505 et al.)

How is domicile defined?

Church Law (1983 Code of Canon Law)
Illinois Compiled Statutes (750 ILCS 5/)
Domicile is acquired by residence in a place with the intention of remaining there permanently.  Quasi-domicile is acquired by residence in a place with the intention of remaining there for at least three months.  Even apart from the person's intention, a domicile is acquired by a person's de facto presence for five years.  A quasi-domicile is acquired by a person's de facto presence for three months (c. 102). A person who resides and intends to continue to reside in Illinois has domicile in the state of Illinois (750 ILCS 5/216).

What importance is the domicile of the parties?

A person belongs to a parish and acquires a proper pastor on the basis of his or her domicile or quasi-domicile (c. 107 §1).  A marriage should be celebrated in the parish in which one of the parties has domicile, quasi-domicile, or at least month long residence.  A marriage can be celebrated in another church with the permission of the proper ordinary or proper pastor which is required for liceity (cc. 1115 and 1118 §1). A person with domicile in Illinois must obey the Illinois law on marriage.  A person with domicile in Illinois is prohibited by law from going to another state to enter a marriage that is prohibited under Illinois law (750 ILCS 5/216).  Similarly, a person from another state is prohibited from coming to Illinois to enter a marriage that is prohibited in their state of domicile (750 ILCS 5/217).  Such marriages are civilly invalid.  Ordinarily, the county clerk verifies that the parties are free to marry in civil law (750 ILCS 5/218).
The local ordinary can grant a dispensation for any Catholic with domicile in his diocese or who is actually present in his diocese (c. 1078 §1).  These canons have an implication for marriages in which one of the parties lives in a different diocese from the diocese where the wedding will be celebrated.  A Catholic party needing a dispensation must receive it from his diocese of domicile for validity.  In an exceptional case, a dispensation can be granted by the diocese in which the party is actually present at the time the dispensation is granted. The dispensation of impediments is not mentioned under state law.

Is there a penalty for celebrating an invalid marriage?

A cleric who knowingly celebrates an invalid marriage may be subject to penalties in accord with the norms of Canon Law.  The invalid marriage may be rectified by a subsequent convalidation or by a radical sanation (c. 1161). A person who violates the provisions of state marriage law is guilty of a Class B misdemeanor (750 ILCS 5/215).  This can occur by solemnizing a marriage known to be invalid, solemnizing a marriage without a marriage license, or failing to return the license after the marriage is solemnized.