Case XXXIII: Marriage in Cases of Emergency

Applied correction from Woywod's opening insert: CASE XXXIII.—Also in this case the "Ne Temere" has been changed in an important point by the Code. Canon 1098 says that whenever the bishop or the pastor or a delegated priest cannot be called nor can the parties go to him and it is foreseen that this condition of affairs will last for a month they can contract marriage in the presence of two witnesses. They need not wait for thirty days.

In cases of emergency, as distinguished from cases in danger of death, the life of either of the candidates for a marriage is not in danger. The emergency is found in the general impossibility in a certain district, province, or country, to have the marriage performed by a parish priest.

Even before the decree Ne temere (of August 2, 1907), various Roman decisions, and interpretations of canonists, had occupied themselves with the question as to what was to be done in a case when the parochus proprius could not be had to perform a marriage ceremony (Gasparri, De Matrim., 1893, II, n. 965 et sequ.; Santi, Praelect. Juris. Con., 1886, lib. IV, tit. III, n. 47 et 48; Aichner, Compend. Jur. Eccles., 1890, p. 661).

The following rules had been adopted:

1. If the Catholic parish priest is not obtainable for the marriage ceremony the parties can give their consent validly and lawfully before two witnesses (without parish priest, even without any priest), provided, 1. That the emergency must be a universal one (namely for the whole region, not a personal only for the couple). The emergency does not have to be a physical one, a moral one suffices, The latter would be the case, if the parish priest can only be had difficillime and periculosissime (not difficile or periculose); so Pius VI to the Bishop of Geneva, October 25, 1793. Circumstances like the presence of an impediment, or the personal infirmity of one of the contracting parties, do not constitute of themselves cases of emergency; nor the fact that one or more parish priests refuse to assist.

2. This emergency must be expected to last at least for a month so that the couple would have to postpone their marriage for a month at least (not merely for a few days or weeks).

3. That the parochus proprius or his delegate (curate or assistant) is not to be had.

4. Also the delegation (even by letter) of another priest by the ordinary is not possible.

All these four conditions must prevail together, not merely one or the other. If, for instance, in cases of emergency the delegation of a priest by the bishop is possible, then the couple can not be married merely before two witnesses and without a priest.

Even if in such cases a civil marriage, or a marriage before a Protestant minister are possible, Catholics can nevertheless marry validly and lawfully before merely two witnesses (without an official or clergyman), because the Catholic Church attributes no sacramental effect to the two forms mentioned. A declaration of consent merely between man and woman without witnesses would even in case of emergency be invalid and unlawful. Witnesses must be present. A case where no witnesses can be had is hardly possible, because even seven-year-old children, or women, or relatives, even the unbaptized, etc., may be valid witnesses.

In such a case of emergency a publication of the banns is of course out of the question.

The decree Ne temere, in Num. VIII, has simply assembled the law as expressed in the different Roman decisions and interpretations by canonists. But three new conditions have been added, namely:

1. The case of emergency is now present only when no Catholic parish priest can be had (formerly parochus proprius).

2. The contracting parties must formally declare their consent (formalis consensus); a tacit consent does not suffice. The declaration no doubt can take place not only by words, but also by signs, otherwise deaf mutes or the dumb could not marry.

3. The emergency must at least have lasted a month (conditio a mense jam perseveret). These rules apply also to mixed marriages and marriages with apostates (Num. XI, Par. 1 and 2, of the decree).

Kindred cases of emergency may occur in times of persecution, or in a Kulturkampf, in times of war; in widely extended missionary districts, etc.

Alois Schmöger, D.D.