Consent makes marriage : a comparative study in the Code of Canon Law and the Maltese Civil Law

Abstract

The main theme analysed in the following thesis relates to marriage and matrimonial consent in the Code of Canon Code and in the Maltese Civil Code. This necessarily calls for an appraisal of the definition of marriage and what constitutes a valid marriage, establishing what are the ends and elements of marriage. The manner in which it is constituted both as a contract and a sacrament in canon law whilst only as a contract under civil law will also be undertaken. In this context there will also be the examination of what makes a marriage null, such as restrictions and impediments. A valid marriage also necessitates a valid matrimonial consent and an examination of what forms this consent shall be determined. Reference will be made to the capacity of the parties to give a valid matrimonial consent, what properties does it give rise to and what is the object of the matrimonial consent. This also calls for a clear notion of the defects of matrimonial consent which lead to its nullity. Finally it will be discussed and concluded whether following the examinations made by this thesis, matrimonial consent does in fact constitute the essence of marriage. Throughout the thesis, particular reference is made to the situation as contemplated in both the canonical and civil sphere, together with the similarities and dissimilarities which such a comparison yields. Also, the points mentioned are examined in the light of jurisprudence and doctrine, both from the canonical and civil perspective.