Parental Authority and the Problem of Clandestine Marriage in the Later Middle Ages

Abstract

Since the last century canon-legal historians and, more recently, social historians have examined a variety of questions concerning the social and legal aspects of marriage in the later medieval period. Particular significance has been given to the synthesis by Alexander III of existing sacramental and legal opinion concerning marriage in the twelfth century. His synthesis produced a doctrine in which marriage was viewed as a purely consensual union. Any two legally entitled adults could contract marriage by words of mutual consent. A twofold distinction existed in the nature and intent of these words. On the one hand, a binding and immediately effective union was created through the exchange of words of present consent (per verba de praesenti). Neither publicity, nor church solemnization, nor indeed consummation added anything to the validity and permanence of such a contract. On the other hand, a promise to marry was expressed by words of future consent (per verba de futuro), which might be terminated by the agreement of the parties or by a subsequent de praesenti contract. If, however, a de futuro contract was followed by intercourse, it took upon itself the legal mantle of a de praesenti contract, and what was initially only a promise to marry was transformed into a binding marriage.