Case XCVI: Marriage Before Two Witnesses

Case.—Xystus (baptized) and Petrina (never baptized) were married some years ago, without the necessary dispensations. A year ago the Ecclesiastical Court declared the union null and void. Petrina accepts this decision, but will not permit Xystus to petition for a divorce. He can marry if he chooses, she says. She will never molest him, but financial reasons render her obstinate in her refusal to give civil freedom to the man whom she was wont to call husband.

Xystus wishes to marry a Catholic lady, but as they cannot obtain the license, the pastor cannot, according to the civil law officiate without danger of imprisonment. After a year’s fruitless argument with Petrina and with the pastor, Xystus takes his young lady to the church and there in the presence of two witnesses they exchange matrimonial consent in the absence of the pastor.

Question.—Is this marriage valid in the eyes of the Church?

Solution.—The marriage law of Pius X. demands the assistance of a competent priest for the validity of marriage. But an exception is made when a competent priest cannot be had, and this condition lasts for a month. The Sacred Congregation of the Sacraments (March 12th, 1910) gave an authentic interpretation of this clause. Marriage can be validly and lawfully contracted, before witnesses alone and without the presence of the competent priest, whenever the engaged parties can neither send for him nor go to him without grave inconvenience, and have already waited for a full month. According to Canon 1098 of the new Code the same privilege may be used whenever it can prudently be foreseen that within the space of a month neither bishop nor pastor nor a delegated priest can be called or approached without serious inconvenience: “In danger of death a marriage contracted before witnesses alone is valid and lawful, and likewise outside danger of death, provided that it is prudently foreseen that this condition of affairs—namely, that the parish priest, local Ordinary, or delegated priest cannot be had or approached without grave inconvenience—will last for a month.” This privilege can be made use of then whenever these two conditions are present, viz.: (1) grave inconvenience, (2) which has lasted for a month or more. Nothing is said concerning the nature of the inconvenience. The requirement is that it be grave and affect the engaged parties, or the priest, or both, whereby they are prevented from going to him or he is prevented from officiating. This applies to individual cases as well as to a general condition existing in some general locality or in some particular nation or nations. Where, then, the pastor, is prevented from assisting at a marriage of his subjects, by reason of the provisions of the civil code, that is when he cannot officiate without subjecting himself to severe penalties, such as imprisonment or fine, the condition of grave inconvenience exists and the privilege may be made use of to contract a valid marriage. It is true that the Congregation of the Council, July 27th, 1908, in answer to the question: “Should provision be made, for the case in which the civil law forbids the parish priest under heavy penalties to assist at a marriage before the civil ceremony, when such cannot take place and, nevertheless, the marriage is absolutely necessary for the salvation of souls?” replied “there is no answer.” But this was anterior to the interpretation of March, 1910, by the Congregation of the Sacraments. Hence the refusal of the Congregation of the Council has no effect on the decision of 1910. Readily enough then it will be allowed that in the case of Xystus there is a very grave inconvenience, a grave civic impediment, which makes it morally impossible for the pastor to assist at the new marriage. Of course the priest could assist and run the risk of punishment by the civil authorities, but he is in no way bound to do this in the present case. As this condition of affairs has lasted more than a month, it must be admitted that Xystus can in foro ecclesiae, contract a valid and licit marriage (provided no canonical impediment exists) in the presence of the two witnesses without the assistance of the pastor. (Cf. De Smet, Betrothment and Marriage, Vol. I, Note 69, sq.)