Chapter — The Casuist
Case XXXI: The Validity of Marriages Among Non-Catholics of the Same Denomination
While the priest has nothing to do with the marriage ceremony in such cases, he will have to inquire into the validity of such unions if one or both parties after their marriage adopt the Catholic faith. For this inquiry he must regard not only the new decree Ne temere, but sometimes the previous law.
If such a marriage was entered before Easter, 1908, its validity is to be judged according to the older law.
When in the following the assistance of a Catholic parish priest is required it is to be understood to mean parish priest and at least two witnesses.
- Marriage among Protestants (schismatics). Before the decree Ne temere the following distinctions were made:
(a) In non-Tridentine territories such marriages were undoubtedly valid regardless of the attendance of a Catholic priest.
(b) For certain districts special laws have been promulgated (so
‘for Hungary, Belgium, Holland, Germany), which made such marriages valid, but unlawful.
(c) For Tridentine territory marriages entered by two Protestants are variously viewed by canonists, who are not agreed as to whether the presence of the Catholic parish priest was necessary for their validity or not. The Roman canonists and Congregations declare themselves for the necessity of the Tridentine form in the case of such marriages.
The decree Ne temere puts an end to all doubts by deciding that marriages among Protestants (schismatics) may after Easter, 1908, be validly contracted throughout the world without a Catholic priest.
It no longer seems to require the assistance of a Catholic priest even for lawfulness, because it says “nowhere are they bound to the Catholic form of marriage.”
, 2 Marriages among Jews (unbaptized).
Ecclesia non judicat de iis, qui foris sunt. Jews who marry Jews were bound invariably by the jus naturae and divinum only, and never by Canon Law. Hence at no time Jews and unbaptized were bound by the Tridentine form of marriage, not even in Tridentine territory. Also under the new decree they marry validly and lawfully without parish priest and two witnesses (Num. XI, Par. 3, of the decree). Heathens, Mohammedans, in brief all unbaptized are in reference to the marriage laws classed with Jews.
- Marriages among apostates.
‘Apostates are former Catholics or Protestants (schismatics) who have renounced their Christian faith; whether they have embraced another form of religion, or whether they live as free thinkers, is immaterial for the technical appellation. According to the former law apostates (without distinction as to whether they had formerly been Catholics or Protestants) were considered by the marriage laws the same as heretics. Therefore marriages of apostates were subject to the (above mentioned) regulations concerning marriages among Protestants. A distinction was made between Tridentine and non-Tridentine territory.
The new law is toward former Catholics more severe than toward apostate Protestants. If two apostate Catholics marry, their marriage can everywhere only be validly contracted before a Catholic parish priest (Num. XI, Par. 1, of the decree). If two apostate Protestants enter into matrimony the union is valid and lawful without a Catholic priest (Num. XI, Par. 3, of the decree). Should an apostate Catholic desire to wed an apostate Protestant, then as a rule a valid ceremony can take place only before a Catholic priest; exception being made only for exempted places (Num. XI, Par. 2, of the decree).
What if such persons present themselves before a Catholic parish priest to be married? What is he to do? The impediment of religio mixta is not present, for in that regard both parties are regarded as heretics. Neither is there the impedimentum disparitatis cultus. The ratio dubitandi is in this case really only, (a) the excommunication, of the candidates for Matrimony, preventing the reception of a Sacrament of the living, and, (b) the co-operation of the priest at an unlawful wedding of this kind. Hence the priest will endeavor first of all to reclaim the apostate persons for the true religion, that they may be absolved from the censure. Should this be futile, then he must lay the case before his Bishop. Pope Pius VI in a similar case gives to the ordinary instructions to apply to Rome (Aichner, Comp. Jur. Eccl., 1890, p. 666, nota 28). The case is really analogous to the marrying of impenitent candidates whom the priest tries in vain to bring to a proper frame of mind. Hence the Bishop could in my opinion, in an urgent case, even give of his own authority the decision warranted by the circumstances.
- Marriages among infidels.
Three kinds of infidels may here be distinguished: Those who formerly were Catholics, those who were Protestants (schismatics), and, former Jews or persons from childhood without Baptism and religion.
If both infidel parties are former Catholics, their marriage before the decree Ne temere was regarded the same as the union of two Protestants; the new law regards the marriage only as valid, everywhere, if performed before a Catholic priest (Num. XI, Par. 1, of the decree). When two infidels, former Protestants, marry, the old law likewise regarded them the same as Protestants. Corresponding to the new decree they can validly and lawfully marry everywhere without a Catholic priest (Num. XI, Par. 3, of the decree).
Two unbaptized infidels could formerly, and can now, be validly and lawfully married without a Catholic priest (Num. XI, Par. 3, of the decree).
An infidel who has been a Catholic, married to an infidel formerly a Protestant, are according to the older law regarded the same as Protestants. Under the decree Ne temere they can only be validly married before a Catholic priest, except in exempted places (Num. XI, Par. 2, of the decree). The impediment of religio mixta is not present here because both are regarded as heretics; neither of course the impediment disparitatis cultus.
If a former Catholic, now infidel, wishes to wed an unbaptized infidel party, the former Canon Law regarded it the same as a marriage between Protestant and Jew. The new law requires for the validity of the ceremony that it shall take place before a Catholic parish priest except in exempted places (Num. XI, Par. 2, of the decree). In this case the impediment disparitatis cultus is not to be overlooked.
The marriage between an infidel, former Protestant, and an unbaptized infidel was by the older rule regarded the same as a marriage between Protestant and Jew. The new decree allows their union as valid everywhere without a Catholic parish priest (Num. XI, Par. 3, of the decree), provided the impediment of disparitas cultus has been removed.
Should infidels who formerly were Catholics or Protestants come to a Catholic parish priest to be married, our remarks above, under marriages of apostates, about such a contingency would also apply in this case.
Alois Schmöger, D.D.