Definition
A Latin phrase meaning "of the present" or "in the present tense." In legal usage, de praesenti describes words, acts, or agreements that take effect immediately and in the present moment, as distinguished from de futuro, which refers to something promised or anticipated in the future. The phrase appears most often in the law of marriage, where it distinguishes a present declaration of consent — words constituting a marriage at the moment they are spoken — from a promise to marry at a future time.
Note on spelling: The term appears in historical sources as de praesenti, de presenti, and occasionally with variant spellings reflecting manuscript and typographical conventions of the period. Black's 2nd Edition uses a spellings artifact of older typesetting. The standard modern Latin rendering is de praesenti.
Common Confusion
De praesenti is most commonly confused with de futuro (of the future). The distinction was legally decisive in the canon law of marriage: words de praesenti ("I take you as my husband/wife") constituted an immediate, binding marriage. Words de futuro ("I will take you") constituted only a betrothal or promise to marry, which was generally dissoluble. The confusion matters because historical legal sources sometimes describe a de futuro contract followed by sexual intercourse as equivalent to a de praesenti marriage — a rule that collapsed the distinction under specific circumstances and that generated significant litigation in ecclesiastical courts.
Why It Matters in Research
Researchers encounter de praesenti almost exclusively in two contexts: the history of marriage formation and, by extension, any area of law downstream from it — legitimacy, inheritance, dower, and property rights.
The canonical distinction between de praesenti and de futuro was the operative framework for marriage validity in England and much of Europe until legislative reform displaced it. In England, Lord Hardwicke's Act (1753) and later the Marriage Act 1836 moved marriage formation toward formal ceremony requirements, diminishing the practical force of the de praesenti/de futuro distinction in English law. In American jurisdictions, the doctrine retained vitality through the persistence of common law marriage, which courts often analyzed using the de praesenti framework well into the twentieth century.
Trap for historical researchers: Sources from the ecclesiastical court tradition, canon law commentaries, and early common law reporters use de praesenti with technical precision. General legal dictionaries and later American treatises sometimes flatten the distinction or use the phrase loosely to mean any present-tense legal act. Confirm the technical context before assuming the source is deploying the term in its strict canonical sense.
Corpus connections: Because de praesenti intersects with marriage validity, legitimacy of children, and inheritance rights, researchers working in family law history, probate, or property law may need to trace the term across ecclesiastical court records, equity proceedings, and early American case law simultaneously.
Historical Dictionary Support
Black's 2nd Edition provides only a brief cross-reference: "Of the present; in the present tense. See PER VERBA DE PRAESENTI." This is characteristic of Black's treatment of Latin phrases at this edition — the entry functions as a pointer, not a definition. The substantive doctrine lives under PER VERBA DE PRAESENTI, the full phrase describing the words of present consent that formed a valid marriage under canon law.
Historical legal dictionaries generally agree that the phrase is a term of art drawn from canon law and that its primary significance is in marriage formation. What these sources often miss is the procedural history: the de praesenti doctrine was not merely academic — it generated contested litigation over whether parties were validly married, with consequences for property, legitimacy, and succession that rippled through subsequent legal proceedings.
Jurisdictional Note
In American jurisdictions that recognized common law marriage, courts regularly applied the de praesenti framework to assess whether an informal union constituted a valid marriage. Jurisdictions that abolished common law marriage rendered the practical distinction largely moot. Researchers should confirm whether the jurisdiction under study recognized common law marriage during the relevant period before relying on de praesenti analysis in primary sources.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Standards of Review on Appeal (De Novo, Abuse of Discretion, Plain Error) — relevant only for the general concept of "de" Latin phrases in legal usage; not directly on point.
The Law Mind Family Law Encyclopedia: Paternity — De Facto Parent and Psychological Parent Doctrines — tangentially relevant where legitimacy and parent-child status intersect with historical marriage validity questions.
The Law Mind Business Organizations Encyclopedia: Corporate Formation — Defective Incorporation (De Facto, Corporation by Estoppel) — not directly relevant; included only to note the separate legal life of "de facto" as a distinct doctrine.