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Die Trennung von Vertrag und Sakrament? Eine Anfrage an c. 1117 CIC

Summary: The Legislator, by exempting from canonical form a Catholic who has separated himself from the Church by a formal act (cf. can. 1117), has reinforced a sense of discomfort attendant on the doctrine of the identity of contract and sacrament in marriage. The premises for this doctrine developed historically over time. The sources for canon 1012 § 2 CIC/1917, and consequently also for can. 1055 § 2, demonstrate that this development had much to do with opposition to the attempt of the modern State to appropriate all power over marriage, in the context of Gallicanism and Josephinism. Today's discussion, on the other hand, centres on the implications for marriage of the sacramental theology of the Second Vatican Council, as reflected in can. 840. It is about the celebration of marriage as the visible foundation of the ecclesia domestica. There is therefore room to enquire whether the nonbelieving couple - who neither intend nor explicitly exclude the sacrament - may nonentheless contract a naturally valid marrriage.