Case LXXIV: The Impediment of Clandestinity

The following somewhat complicated marriage case was laid by an episcopal curia before the Sacred Officium for decision.

The answer given by the Congregatio S. Officii, Seu Inquisitionis, differs somewhat from the opinions of the consulted theologians, and is, one might say, astonishingly simple. We give the case according to the Analecta ecclesiastica.

Caius, a Catholic of the diocese of N., contracted, thirteen years ago and in the town of A., where the Tridentinum has been promulgated, a marriage with Titia before a non-Catholic minister, and had with her several children. Tortured by remorse, he wished to re-validate this marriage, but a great obstacle stands in the way. Titia had, twenty-five years ago, been married to a Lutheran, Sempronius, which marriage, however, had been dissolved in court fourteen years ago. Titia and Sempronius, both non-Catholics, lived at that time in the town B., where the Concilium Tridentinum had been published at a time when a separate Protestant community already existed, and they arranged in this town everything necessary for marriage; the ceremony, however, did not take place in B., but in the town of C., before the, for this act, delegated non-Catholic minister; immediately after the wedding they returned to B. and there lived peacefully, becoming the parents of two children. Their happiness was destroyed by the husband’s faithlessness, and the court granted divorce on this ground. It is to be noted that in the town B., where the consensus was given, the Tridentinum had been published at a time when no Protestant community existed there. Caius now asks that the marriage between Titia and Sempronius be declared invalid on the impediment of clandestinity, thus making it possible for him to contract marriage with Titia.

As we see it is a matter here of two marriages. The marriage between Caius and Titia is without doubt invalid, because of clandestinity, and for this reason Caius wishes re-validation. To this re-validation is opposed the first marriage between Titia and Sempronius, which, presuming that it was valid, could not be dissolved by the court. The question, therefore, is: Was the marriage between Titia and Sempronius valid or not?

In the episcopal curia opinions were divided. The majority of counselors held the marriage to be invalid on account of the obstacle of clandestinity; it had been contracted in a place where the Decretum Tametsi was in force, but before a non-Catholic minister, Furthermore, they claimed that: in this case the decree of the Sacred Officium, of June 5, 1889, finds application, according to which a marriage contracted clandestinely in a locality where the Tridentinum exists in force, can, setting aside other prescribed formalities, be pronounced invalid by the ordinary, without a second decision being necessary.

Other diocesan counselors held for various reasons that the marriage in question was valid.

The Theologus capitularis gave his votum as follows: 1. The first question is, was the marriage between Sempronius and Titia valid, or not? 2. If undoubtedly invalid, then of course the decretum S. Officii, of June 5, 1889, finds application and episcopal curia can definitely pronounce the invalidity. 3. I hold, in opposition to others, that for a certainty the marriage in the town C. was contracted invalidly, because in that place the Decretum Tametsi was published, and one must maintain the principle: Locus regit actum. 4. Because, however, without observing the Tridentine form they could in B. have contracted the marriage validly, the question is whether they have not really contracted the marriage upon their return there according to the law: mutual marital consent manifested in the present constitutes marriage. The Jus Decretalium, which is based upon the natural law, still exists in force in all places where the Tridentinum has not been published. This consensus is not dependent upon a verbal declaration, and GASPARRI therefore writes: “What signs or acts sufficiently express consent cannot be indicated by a general rule. We have elsewhere declared that carnal intercourse, had in certain circumstances, sufficiently expresses marital consent” (Tract. Can. de Matr., n. 831).

From undoubted facts the marriage between Sempronius and Titia appears valid. We reason thus: the two gave their consent before the non-Catholic minister in the town C., where the Tridentinum existed. This consent was of course invalid, and for this reason the marriage contracted in that place was likewise invalid, but solely on account of clandestinity, not on account of lack of consensus. Then they returned to their home in the town B., where they were free from the Tridentine law. The consensus still continued, because on their return they considered themselves married, lived a long time in peace and reared children, certainly not affectu fornicario, which would have to be proved, but animo maritali. Of course not intercourse but consent makes marriage. It is probable that they gave this consent, by word or sign, upon their return, but it is certain that this consent found sufficient expression at the moment when, with marital intention, they had carnal intercourse for the first time in the town B.. The interior marriage consent was present, because they believed themselves wedded, the exterior sign of the consensus was added through the copula; therefore a valid clandestine marriage was contracted. To this argument can not be opposed the decree Consensus mutuus of Leo XIII, February 15, 1892. Through this decree only the previously existing praesumptio iuris et de iure is removed, namely, the praesumptio: valid betrothals pass into a valid marriage through subsequent carnal intercourse had with marital intention.

The Pope by this decree did not in the least wish to abolish clandestine marriages in territories where the Tridentinum does not exist; nor did he desire to deprive in these territories couples of the possibility of having intercourse with marital intention and contracting marriage, In individual cases, therefore, it is to be ascertained whether the betrothed had intercourse with marital consent or not. In our case a moral certainty is present that Sempronius and Titia upon returning to B. had intercourse with marital intention. Hence all conditions are present for a valid marriage; the intrinsic consensus, which certainly continued, expressed exteriorly by the copula; likewise the lack of any obstacle. Therefore they contracted a valid marriage; at the very least it is not evident that the marriage was an invalid one.

The Defensor Matrimonii held as follows: Sempronius and Titia had their domicile at B., where the Conc. Tridentinum was promulgated, but at a time when at that place there was a separate Protestant community. Although REIFFENSTUEL is of the opinion that in such localities the Tridentine law binds Protestants, this opinion is now abandoned, and the Congregation of the Council has repeatedly recognized such marriages as valid. Sempronius and Titia, therefore, might have contracted the marriage in B. without observing the Tridentine form. As a matter of fact the wedding took place at C., where a Protestant community had existed for only about sixty years; they returned to B. and lived peacefully for several years. For validity, as also for invalidity, there seem to be weighty grounds.

A. Reasons for the validity:

1. Many authors have regarded all Protestant marriages as valid, even though the Tridentine form has not been observed (Compare AICHNER, J. Eccl. (edit. 7), p. 664; and BENEDICT XIV, de Synodo dioec., I, VI, c. 6, n. 4).

2. At any rate Sempronius and Titia could in B. without observing the Tridentine form validly contract the marriage by mutual marital consent expressed; this could take place also through intercourse had with marital intention. The Defensor Matrimonii alludes here to the argument which the Theologus capitularis emphasizes.

3. The Tridentine law is personal and local; insofar as it is personal Sempronius and Titia were unhampered! inasmuch as it is local, there occur exceptions, as a pastor may marry his parishioners in a locality where they have not their domicile. It appears then that Sempronius and Titia could contract their marriage in C.

4. There is the principle: No one can be obliged to the impossible. It was impossible for both to go to a Catholic priest. Of course this impossibilitas must exist for the community, not merely for the individual. For it is a matter of a lex irritans, which considers the inconvenience of the community, but not of an individual.

B. Reasons for the invalidity:

1. The marriage in C. was evidently invalid, because the Tridentinum existed there as a law, binding also for Protestants. The Tridentine law is local and personal; now if Sempronius and Titia could contract the marriage in B. without observing the Tridentine form, they could not do so in C, because the place governs the act. This law admits of no exception because it is a lex irritans.

2. It can not be urged that the marriage was valid because consummated in B. The consent from the very beginning was invalid and would not become valid by mere carnal intercourse. Both believed they had been married, and in B. did not renew the consent, neither expressly nor through the consummation of their marriage. At any rate, the Defensor concludes, the solution is not evident, and hence’ the case should be laid before the Apostolic See.

The answer of the Congregatio S. Officii, Seu Inquisitionis, was as follows:

Most Illustrious and Most Reverend Lord!

By letters dated April 27 of this year, Your Excellency proposed the following doubts:

1. Whether the marriage entered into by Titia with Sempronius before a non-Catholic minister in the town C., prepared for and continued in the town B., is established as valid, or can be declared invalid by an ecclesiastical judge on the ground of clandestinity?

2. Whether the Catholic Caius, after such a declaration has first been made, can contract a legitimate marriage, with all requirements observed, in the face of the Church with the same non-Catholic Titia, by whom he has already begotten two children?

The matter was referred to the Most Eminent Lord Cardinals, Inquisitors General together with me, who in a General Congregation held on Wednesday, July 29, decreed that the answer should be:

To 1. The marriage in the case, all things considered, is null; provided it be established by an oath to be taken by the woman that consent (the parties knowing the nullity of the prior consent) was not renewed in a place where the Tridentine decree is not in force.

To 2. Once it has been established, as above, that the woman is free with respect to her marriage to the Catholic Caius, let the Most Reverend Lord Bishop first take care that the woman herself be converted; otherwise let him petition His Holiness for a dispensation from the impediment of mixed religion, after the cautions have been given in the Curia and after the Catholic man has first been absolved from censures because of the marriage attempted before a heretical minister.

This resolution of their Eminences having been approved by Our Most Holy Lord on the following Friday, the 31st of the said month, I transmit to Your Excellency the corresponding rescript enclosed herein, and meanwhile I pray the Lord for every blessing upon you.

Of Your Excellency as a brother

Rome, August 16, 1896. L. M. Card. Parocchi.

In the letter referred to was contained the faculty of dispensing from the impediment of mixed religion and of absolving Caius from censures.

We would add the following remarks:

1. As is clear from the decision, the Congregatio S. Off. regarded the marriage contracted in C. as invalid. A new proof that in localities where the Tridentinum was proclaimed at a time when no Protestant community there existed, the Protestants were bound by the lex Tridentina. Even the objection that Sempronius and Titia could not possibly go to a Catholic priest is not taken into consideration, because it is a question of lex irritans, which admits of no exception per epikiam. Note also: the marriage in C. was invalid although the couple came from B., where the Tridentinum did not exist for them. Therefore LEHMKUHL (Theol. Moral, II, n. 780 nota) is quite correct when he objects to CARRIERE’s opinion, who maintains: “the marriage of those who reside in a place where the Tridentine law is not in force, but while traveling contract in a place where it is in force, is more probably valid.”

2. Not even by the consummation of the marriage in B. per copulam was the same rendered valid “For consent, not intercourse, makes marriage.” This consensus was from the very beginning invalid and that which does not subsist in law is not made firm by the passage of time. They consummated the marriage in the false presumption that they had been married, not to contract the marriage. This defeats the clever interpretation of the Theologus capitularis.

3. The two might have contracted a clandestine marriage in the town B.; for the Theologus capitularis was correct in maintaining that through the decree Consensus mutuus only the matrimonium praesumtum is abrogated, but not the matrimonium clandestinum, for localities where the Tridentinum does not exist. For this reason the Congregatio requires from Titia the oath that she never expressly renewed the consent in B., knowing that the consent given in C. had been invalid.

The decision of the S. Congregatio elucidates various mooted points and is a guide for the decision of similar cases.

Ign. Rieder, D.D.