Case LXXXVIII: Questions Regarding Mixed Marriages

Case.—Bertha, a Catholic young lady, asks Paul, her pastor, to obtain the necessary dispensation in order that she may marry Ezekias, a Methodist. At the same time she informs Paul that Ezekias refuses to make any promises in regard to the future Catholic Baptism and training of the children that may be born after the marriage. Paul declares that it will be useless to apply to the bishop for a dispensation, unless Ezekias consents to make the pre-nuptial promises, which are always required of non-Catholics who desire to marry Catholics. Ezekias refuses to make the promises; then he and Bertha contract a civil marriage before a magistrate on May 2, 1912. Two months later Bertha repented, and anxious to have her marriage legalized in the eyes of the Church, applies to Paul for relief, stating that Ezekias refuses either to appear before the priest for a marriage ceremony, or to make any promises. Paul applies to the bishop for a sanatio in radice. Questions:

1. Is it always necessary to require the pre-nuptial promises in cases of mixed marriages?

2. May the bishops in the United States in any circumstances allow a priest to officiate at a mixed marriage when the non-Catholic party obstinately refuses to make the pre-nuptial promises?

3. What is meant by the material presence of a pastor at a mixed marriage under certain circumstances?

4. Did Paul the pastor act prudently in the case as proposed?

5. Could a bishop in the United States give a Sanatio in radice in the case as proposed?

Solution: 1. It is necessary always in cases of mixed marriage to require the pre-nuptial promises (cautiones) by which the non-Catholic party agrees to the religious liberty of the Catholic spouse and the Catholic education of their children. This is required not only by ecclesiastical legislation but also by the natural and divine law. “For since not only ecclesiastical law but also the natural and divine law altogether forbids a person, in contracting marriage, rashly to expose himself or his future offspring to the danger of perversion, it is thereby plainly evident that the aforesaid guarantees are employed for this reason: that the same natural and divine law may be kept safe and intact’ (Pius VIII, to Archbishop of Cologne, Mar. 27, 1830). Ecclesiastical legislation may and should require that those promises be made in writing and signed by the parties promising.

2. In a letter of Gregory XVI. to the bishops of Hungary (April 30, 1841) it was declared that in cases of mixed marriage when the cautiones are obstinately refused and the marriage cannot be prevented without danger of greater evil and scandal and detriment to religion, and it is deemed better for the good of the Church and the common welfare that the marriage should take place before the priest rather than before a heretical minister, “then the Catholic parish priest or another priest acting in his place may be present at those nuptials by material presence alone, with every ecclesiastical rite excluded.” The bishops of the United States have not requested a concession such as was made to the bishops of Hungary, and the Holy See has not made such a concession for our country. It cannot be said, then, that our bishops have the right to judge whether they can allow the assistentia passiva, as Rome seems to reserve the judgment to its own tribunal in all doubtful cases of this particular kind. A decree of the Holy Office of August 5, 1916, declares that passive assistance of pastors at mixed marriages can be tolerated only in the places for which concessions were made before the “Ne Temere.” Hence marriages contracted in such manner elsewhere are according to this decree not only illicit, but also invalid. The same Sacred Congregation decided Dec. 22, 1916, that when the non-Catholic party is willing to wed before the parish priest but refuses to make the customary promises in favor of the Catholic religion, validation must be obtained through a sanatio in radice rather than through a dispensation with renewal of consent in the passive presence of the parish priest. Cf., however, what is said under No. 5.

3. By material or passive assistance it is meant that the priest assists merely as a witness, gives no sign of approval and performs no ecclesiastical rite. Hence the sacred vestments should not be used, the words “Ego vos conjungo, etc.” should not be pronounced, the blessings of the ring, prayers, Mass and nuptial blessing should be omitted.

Whether the asking and receiving of consent would constitute formal or active assistance on the part of the priest is not certain. The Holy Office declared June 21, 1912, that in case of mixed marriage when the cautiones are obstinately refused, the prescription of the “Ne Temere” requiring for validity that the expression of consent be asked and received no longer holds. From this it seems most probable that such action on the part of the priest would be more than material or passive assistance. Nevertheless there seems to be some reason for holding that, since the persons to be married make the contract (the priest not being the minister), to ask: “Wilt thou take, etc?” would be nothing more than saying: “You wish to be married; then join hands and say these words: ‘I, N., take, etc.’” Certainly the presence would be merely material if the priest omitting the “Wilt thou take, etc?” began by telling the couple to join hands and say: “I, N., take thee, etc.” and continued as directed in the “modus assistendi matrimoniis mixtis,” as in the Baltimore Ritual. Whether the priest asked the parties to repeat the words after him, or made them read from a book, would not be important, as in either case his assistance would be merely material.

4. Paul acted imprudently if he did not refer the case to the bishop. If he thought that the marriage could not be prevented, his duty was: 1st, to try to obtain the promises; 2nd, in case of refusal, to lay the matter before the bishop. In countries where instructions have been given, it is decided that the bishops may allow the priest to assist materialiter.

5. The former faculties of the bishops did not comprehend this new impediment of the forum of marriage. Canon 1139 of the new Codex provides that marriages can be sanated in radice, even when the requisite form has not been observed. It does not grant this faculty to bishops, however, but simply states that such marriages can be made legitimate. Hence the faculty has to be applied for. Some bishops in the United States, e. g., Cardinal Farley of New York, have the faculty to grant a sanatio in radice for a marriage attempted, cum impedimento mixtae religionis vel disparitatis cultus, before a magistrate or a non-Catholic minister. Such sanation may be granted inscia parte acatholica, if it be impossible to get a renewal of the consent with the cautiones. There is good authority for holding, likewise, that a bishop who does not possess these or similar faculties may act, nevertheless, as though he did, if there be grave necessity of such action, e. g., if prompt recourse to the Holy See is impossible and the case cannot suffer such delay without causing great harm. Canon 81 of the new Code reads: “Ordinaries below the Roman Pontiff cannot dispense from the general laws of the Church, not even in a particular case, unless this power has been explicitly or implicitly granted to them, or unless recourse to the Holy See is difficult and at the same time there is danger of grave harm in delay, and the matter concerns a dispensation which the Apostolic See is accustomed to grant.” However the decree of Dec. 27, 1916, mentioned above states that a bishop, notwithstanding his faculty of sanatio in radice, cannot make use of it in case the non-Catholic party is willing to appear before the priest, but is entirely unwilling to make the promises.