Case XXXII: Marriage in Danger of Death

Applied correction from Woywod's opening insert: Case XXXII.—The New Code somewhat modifies the "Ne Temere" for marriages in danger of death. Canon 1098 states that if the pastor or a properly delegated priest cannot be had the parties can contract marriage validly and licitly in the presence of two witnesses. If a priest not authorized to assist at marriages can be called the Code wants him to be present but in any case the two witnesses are sufficient for validity.

The question of the faculty to dispense from impediments of marriage in danger of death is determined by Canons 1043 and 1044. The bishop can in such cases dispense from the form of marriage and from any impediment except the priesthood and the affinity in the direct line. If a dispensation from mixed religion or disparity of cult is given the promises must be made. Under the same circumstances and only in cases where the bishop cannot be reached the pastor has the same faculties and also the priest who might be called to assist at a marriage as in the above quoted Canon 1098. Finally the confessor also has these faculties but only for the internal forum and in sacramental confession.

The Roman decree Ne temere, of August 2, 1907, brings about a moderation in the form of the marriage consent declared in imminente mortis periculo (Num. VII, of the decree). The term deathbed marriage would no longer cover such a case. The decree does not speak of dangerously ill, such as, for instance, is the requirement for Extreme Unction. Periculum mortis may be present even without illness, in the case of those, for example, who are condemned to death, of soldiers before battle, of shipwrecked, in time of persecution when Catholics are threatened with death.

Before the decree Ne temere, Canon Law knew of no universally valid moderation of the Tridentine form prescribed in danger of death. Even in periculo mortis a marriage was only valid if contracted before the parochus proprius and at least two witnesses. On February 20, 1888, however, exception was made by Pope Leo XIII for aegroti (not therefore for shipwrecked, etc.), in danger of death, if there was no longer time to apply to Rome, but only in these two instances, namely: 1. In the event of a civil marriage, and 2. In the case of concubinage. For other cases (the case, for instance, of repairing the reputation of a woman with whom the man now in danger of death does not live) the exemption does not apply. In these two cases, then, the diocesan ordinary can dispense from all impediments to marriage (except the order of the presbyterate and affinity in the direct line arising from lawful intercourse); with faculty to delegate a parish priest, an assistant or other priest. According to the decision of the S. Cong. Officii, of December 13, 1899, the ordinary on the strength of these exceptions can dispense even from the impediment of clandestinity (Acta S. Sed., 1899-1900, p. 500; 1907, pp. 546 and 547). Thus the ordinary is empowered in such cases to dispense through any priest to the effect that a couple may be validly married without the presence of parish priest and witnesses. This decree of Leo XIII is not superseded by the decree Ne temere, because Num. VII of the new decree of Pius X is a lex generalis, but the decree of Leo XIII a lex specialis. Lex generalis non derogat speciali. Other exemptions from the form of marriage consent in danger of death did not exist before Easter, 1908.

The new decree of Pius X effected, after Easter 1908, a universally valid moderation in the form of marriage in danger of death, in so far as the marriage is valid and lawful if it takes place before any (Catholic) priest and two witnesses. Thus the parish priest of the domicile (parochus proprius), or the parish priest of the place where the marriage is entered, are not required to assist, not even a parish priest. Any priest, may he be curate, chaplain, professor of theology, spiritual director, etc., may perform such a marriage ceremony validly and lawfully. Without witnesses, however, the priest alone assisting, the marriage would be both invalid and unlawful; it would be so also before two witnesses without a priest. That witnesses are required absolutely and invariably is wisely ordained by the Church, as in such cases, with publicity excluded, a partly unconscious, dying patient might often, and for very questionable reasons, be hurriedly married to some one (Acta S. Sed., 1907, p. 573). Furthermore the precept is calculated to protect the priest against charges of unbecoming conduct, or of undue influence. Witnesses are easily obtainable, the nurses for instance. The provision that any priest may be chosen is no doubt made because such a marriage may be resolved upon when a priest is there to administer the last Sacraments, during a sick call of the priest, on occasion of a visit by a befriended priest, or in an emergency case in hospital or prison when the chaplain but not the parish priest is within call, etc.

In order, however, that such a marriage in danger of death be valid and lawful the following conditions are provided:

1. There must be lack of time to apply for delegation to the ordinary or to the parish priest, or to summon them or a delegated priest (the curate for instance). If time permits of securing delegation from the ordinary, or to summon the parish priest or his delegate, then such a marriage performed by another priest would be invalid and unlawful.

2. The ceremony must be desired to set at peace the conscience (ad consulendum conscientiae) and (if there are pre-nuptial children) to legitimize the children. Ad consulendum conscientiae will apply usually in cases of civil marriage or of concubinage. Unfortunately it is not stated in the decree whose conscience may be appeased. Does it apply only to the conscience of the dying person (or one in danger), or has a priest the right to proceed if it is only a question of the peace of conscience of the (healthy) mistress of one in danger, or the peace of conscience of respectable parents who urge to have matters settled? The peace of conscience referred to is probably that of the dying, or one in danger, because the approaching step into eternity makes him fearful and he has not much time to put things in order; the other persons are only threatened in their reputation or material welfare. The decree manifests solicitude for the children, not for other relatives. The danger of financial loss or impairment of honor is not mentioned in the decree as sufficient reason for a facilitation of the marriage form.

Regard for peace of conscience, and therewith the validity and lawfulness of the facilitated form are absent, if the one in danger is not disposed to contrition or penance (an irreligious person for instance whose conscience does not much trouble him): In such case the marriage could not take place before a casual priest unless it were for the legitimizing of children. When it is only a question of legitimizing children, but not of appeasing the conscience of the one in danger, one might doubt according to the strict wording of the decree whether a casual priest could perform the ceremony, because it says ad consulendum conscientiae ET (not vel) prolis legitimationi. In my opinion the et has here, as in frequent other instances, the same meaning as vel, because it would not be just to let the children suffer for the father’s indifference, and the decree manifests special solicitude for the children. What is to be done when concern is had only for a legacy, material advantage, reputation of the persons not in danger, or in a case of insistence by relatives, in brief, when the purpose has nothing in common with peace of conscience or the legitimizing of children? In such cases it would seem that a casual priest cannot validly and lawfully perform the ceremony. Solicitude for peace of conscience will not be a valid reason, either, when the case is one of an existing marriage, which is invalid on account of a secret impediment, if this fact is not known to the one in danger and can not be communicated to him (in which case the children are legitimate). Ad consulendum conscientiae would, furthermore, not furnish a valid reason if the one in danger by means of the facilitated form simply wished to hurry the matter unnecessarily, or, on account of personal antipathy, did not wish to be married by the parish priest or his assistant, or for any other similar unworthy reason.

The new decree does not exclusively mention the two cases: Validation of a civil marriage or of a concubinage. Other cases may be presumed, in which a dying person (one in danger) wishes to set his conscience at rest by a marriage, for instance a person feels impelled by conscience (in consequence perhaps of an admonition by the Confessarius) to marry the person whom he has seduced, from whom he lives apart and who has borne him no children; or he has become engaged honorably and wishes to carry out his promise on his deathbed, or the one in danger wishes to make a certain restitution by marrying.

In the decree Ne temere it is not required that the marriage in the facilitated form, in cases of danger of death, must be performed secretly, i. e., with two confidential witnesses and excluding all publicity. Secrecy or publicity is left to the priest’s good judgment.

Of marriage banns in such cases the decree makes no mention. If, in so urgent a case, the priest had to apply first of all for dispensation, the facilitated form would become illusory, because parish priest or assistant might just as quickly be summoned, or a delegation from the ordinary obtained.

The regulations concerning the marriage in danger of death find application also in cases of mixed marriages (Catholics and Protest: ants), or of marriages of apostate Catholics. In these cases the stipulation concerning the Catholic education of the children must not be overlooked (Num. XI, Par. 1 and 2, of the decree).

If the decree of Leo XIII, of February 29, 1888, is still in force, along with the decree of Pius X, of August 2, 1907, what distinction is to be made in corresponding cases?

The distinction is as follows:

1. The decree of Pius X is a universal one and applicable for every kind of danger of death, therefore, for instance, also for shipwrecked and for criminals sentenced to death; that of Leo XIII is a special one and applicable only to the sick.

2. Pius X decrees regardless of impediments; Leo XIII refers to cases in which an impediment is present and a dispensation necessary.

3. Leo XIII decreed only for the legalizing of a civil marriage or a concubinage (therefore, for instance, not including the case of one who wishes to marry a seduced person living apart from him); the decree of Pius X has for its general purpose the appeasing of the conscience and legitimizing of children.

4. Leo XIII speaks of gravissimum mortis periculum; the decree of Pius X is less restricted and ordains for imminente mortis periculo.

5. Leo XIII makes it a condition that there is not sufficient time to apply to Rome; Pius X requires only that, if possible, the ordinary or parish priest be summoned.

6. Leo XIII renders possible (by dispensation from the impediment of clandestinity) a marriage even without priest and without witnesses; Pius X prescribes for the validity and lawfulness at least a priest and two witnesses.

7. In order that a priest may avail himself of the decree of Leo XIII (to grant dispensation) he must be delegated by the ordinary; in order to assist at the marriage according to the new decree of Pius X no episcopal authorization is necessary, because just those cases are intended in which there is no time to apply for delegation. Therefore, if in a marriage in danger of death an impediment to marriage were present (for example relationship), then both decrees are applicable: The casual priest must apply to the ordinary for a dispensation from the impediment, otherwise the marriage would be invalid on account of the existing obstacle; and the local parish priest must be beyond reach, otherwise the marriage would be invalid on account of the form (unless the priest, to whom is granted the faculty of dispensation, is by the ordinary at the same time delegated to perform the marriage).

A Roman Consultor of the Cong. S. Concilii remarks in his opinion on the new decree: “This celebration of marriage at the point of death does not seem to be absolutely required for salvation” (Acta S. Sed., 1907, p. 574). The decree itself does not say marriage OUGHT TO BE CONTRACTED, but MAY BE.

Alois Schmöger, D.D.