Montesquieu
 

XXVI.13 In which case one must follow, with respect to marriages, the laws of the religion, and in which case one must follow the civil laws

It has hap­pe­ned in every coun­try and in all times that reli­gion has made mar­ria­ges its busi­ness. Once cer­tain things have been regar­ded as impure or illi­cit, des­pite the fact they were neces­sary, reli­gion had to be cal­led in to legi­ti­mate them in one case and reject them in the others.

On the other hand, mar­ria­ges being of all human actions the one which is of grea­test concern to society, they had of course to be regu­la­ted by civil laws.

Everything that concerns the cha­rac­ter of mar­riage, its form, the man­ner of contrac­ting it, the fecun­dity it pro­cu­res, which has led all peo­ples to unders­tand that it was the object of a par­ti­cu­lar bene­dic­tion which, while not always apper­tai­ning to it, depen­ded on cer­tain super­ior favors – all this falls within the com­pe­tence of reli­gion.

The conse­quen­ces of that union as it rela­tes to pro­perty, to mutual advan­ta­ges, to eve­ry­thing connec­ted to the new family, to the one from which it sprang, to the one that will be born – all these are the busi­ness of the civil laws.

As one of the impor­tant pur­po­ses of mar­riage is to remove all the uncer­tain­ties of ille­gi­ti­mate conjunc­tions, reli­gion puts its stamp on it, and civil laws add their own, so as to confer all the authen­ti­city pos­si­ble. Thus, in addi­tion to the condi­tions that reli­gion demands for the mar­riage to be valid, civil laws can require still others.

What gives the civil laws this power is that they are added marks, and not contra­dic­tory marks. The law of reli­gion calls for cer­tain cere­mo­nies, and the civil laws call for the consent of the fathers ; in so doing, they are asking for some­thing more, but they are asking for nothing contrary.

It fol­lows from this that it is up to reli­gious law to decide whe­ther the bond shall be indis­so­lu­ble or not : for if the reli­gious laws had esta­bli­shed the bond as indis­so­lu­ble, and the civil laws had ruled that it can be bro­ken, those would be two contra­dic­tory things.

Sometimes the marks imprin­ted on mar­riage by civil laws are not abso­lu­tely neces­sary, such as those esta­bli­shed by the laws which, ins­tead of nul­li­fying the mar­riage, have been content to punish those who contrac­ted it.

Among the Romans, the Papian laws decla­red ille­gi­ti­mate the mar­ria­ges they pro­hi­bi­ted, and merely sub­jec­ted them to penal­ties1 ; and the sena­tus consul­tum issued on the speech of the empe­ror Mark Anthony decla­red them null and void : there was no lon­ger any mar­riage, wife, dowry, or hus­band.2 Civil law deci­des accor­ding to the cir­cum­stan­ces ; some­ti­mes it focu­ses on repai­ring the damage, some­ti­mes on pre­ven­ting it.

See what I have said on this subject in chapter xxi of the book on laws in their relation to the number of inhabitants [Book XXIII].

See law 16 following in Ritu Nuptiarum, and law 3, §1, also in the Digest, De donationibus inter virum et uxorem.