Chapter — The Casuist
Case XV: A Roman Catholic Marries an Oriental Schismatic
Titius, a Catholic belonging to the Roman rite, marries Bertha, who belongs to an Oriental schismatic rite, before a schismatic priest.
- Is the marriage valid?
- Is Titius excommunicated?
- Is the case reserved?
Answer.—1. The marriage is invalid, because of the diriment impediment arising from failure to observe the form established by the decree “Ne temere”. The new marriage law, as contained in the decree, “Ne temere,” binds all Catholics of the Latin rite: (a) When contracting marriage between themselves; (b) when contracting with non-Catholics, either baptized or unbaptized, unless the Holy See makes an exception for a particular country, as it has done for Germany; (c) when contracting with Catholics of an Oriental rite. Catholics belonging to the Oriental rites are not bound by the provisions of the “Ne temere” if they marry persons belonging to an Oriental rite. It is only when they contract marriage with Latin Catholics that they are indirectly bound by the new law, because the Latin Catholic is bound by it. The Congregation of the Council was asked last year:
Is a marriage contracted by a Catholic of the Latin rite with a Catholic of an Oriental rite valid when the form established by the decree “Ne temere” has not been observed?
The answer given on March 28, 1908, was: No.
In the bull Allate sunt of Pope Benedict XIV, it is expressly stated that the Orientals are not bound by new pontifical decrees, except in the following three cases: (a) When dogmas of faith are defined; (b) when the decree mentions expressly the Orientals; (c) when the Orientals are implicitly included in a pontifical decree, as they are in the bull of Leo X, in the V. Council of the Lateran, forbidding an appeal from the Pope to a future general council.
As the decree “Ne temere” is not dogmatic but only disciplinary, and as no mention is made of the Orientals, they are not bound by its provisions. Under the former marriage laws of the Church, contained in the “Tametst’ of the Council of Trent, the principle obtained that in the matter of clandestinity, if one of the parties to the marriage contract was not bound by the law of clandestinity, he communicated that privilege to the party that was bound by the law, propter individuitatem contractus. That principle no longer holds under the new law, but the general principle of the law obtains that a contract is null and void, if one of the parties to it is incompetent.
The Catholic of the Latin rite, being incompetent to contract marriage validly, except he contract before a Catholic priest having jurisdiction over the locality where the marriage takes place, his marriage to a Catholic of an Oriental rite will be null and void, unless it be contracted in that way. A fortiori, if the Oriental Catholic belong to a schismatic rite, as in the present case. As Titius was not married in the presence of the parish priest of the district, but by a schismatic priest, it is very evident that his marriage is invalid.
- Is Titius excommunicated?
Yes, Titius, by being married by a schismatic Oriental priest, has incurred excommunication. The Holy Office has repeatedly declared that Catholics who contract marriage before non-Catholic ministers of the Gospel incur excommunication.
S. Officium, August 28, 1888; May 11, 1892.
The theologians do not agree as to why such Catholics incur excommunication. Some maintain that it is because by contracting marriage before a non-Catholic minister Catholics become patrons and abettors of heresy. Others contend that Catholics, by marrying before non-Catholic ministers profess themselves, by implication, believers in heresy in foro externo and are therefore excommunicated; because receiving the Sacraments from heretics according to an heretical rite is looked upon as an implicit profession of heresy, and the bull, “Apostolicae sedis,” of Pius IX, 1869, declares that all who believe heretics, and their receivers, supporters, and in general any of their defenders, incur excommunication.
In like manner, the III. Pl. Council of Baltimore, tit. iv, cap. I, n. 127, decrees:
“Catholics who, before a minister of any non-Catholic sect, have contracted or attempted marriage outside their own diocese, in any state or territory under the authority of the prelates who are present at this council or ought to be present, incur an excommunication reserved to the bishop.”
This excommunication was not abrogated by the new marriage law of the “Ne temere.” It is still in force, and as Titius was married by a schismatic priest, he naturally incurred it.
- Is the case reserved? Yes, the case is reserved to the bishop. The Council of Baltimore just quoted, expressly reserves the excommunication of Catholics, who contract marriage before non-Catholic ministers of the Gospel, to the bishop, “Episcopo reservatam,” says the Council, “from which, however, any of the said Ordinaries may absolve, either personally or through a priest delegated for this purpose. But if they have offended in this way in their own diocese, we decree that they are by the fact itself bound by an excommunication which, unless without evasion of the law they approach another bishop, is reserved to their Ordinary. ”
Titius must apply to his own bishop to be freed from the excommunication, unless, without any intention of cheating the law, he apply to another bishop. In this latter case any bishop can remove the excommunication.