Article — Merkelbach, Pastoral Questions
Article I: Concerning Betrothals
- I. Notion.
Betrothals are the mutual promise of future matrimony, legitimately given between capable persons.
- II. Conditions of a valid betrothal contract.
Four conditions are required:
a) A promise, and indeed a true, deliberate one, not extorted by force or by unjust and grave fear.
b) A mutual promise: otherwise there is had not a betrothal contract, which necessarily is bilateral, but a simple promise of matrimony.
c) Capability of the contracting parties: they must be such as at some time can validly and licitly enter matrimony between themselves. For every promise of an impossible or illicit thing is plainly invalid.
d) A written promise.
Before the decree Ne temere, promulgated by the S. C. C. on 2 Aug. 1905 and in force for the whole Latin Church from 19 Apr. 1908, betrothals were valid in whatever way they had been sufficiently manifested from natural law.
But that decree introduced a new discipline, by force of which betrothals are valid in neither forum unless they are: 1. made in writing; 2. with the apposition of the date; 3. duly signed.
- The writing can be drawn up by anyone whatsoever, or even printed with type. An appended condition or a time added for ending the obligation, if the contract is entered with such clauses, must necessarily be expressed in the writing itself.
- The date, or apposition of the day, month, and year, should be indicated of necessity; but the place in which the betrothals are entered should suitably be indicated.1
1 S. C. C., 27 Jul. 1908, ad 2.
- The writing must be signed both by each party who contracts the betrothals, and by the pastor or Ordinary of the place, or by two witnesses.
If one or both contracting parties does not know how to write or cannot write, this is to be recorded in the writing, and then another witness must be added, who with the others indicated above signs the writing.
All who must sign the writing must be assembled together when they fulfill that office.
Nothing prevents betrothals from being contracted by a procurator, since this is prohibited by no law.
- III. Who are comprehended under the name of Ordinary of the place and pastor.
The Ordinary of the place and the pastor, as we have said, are privileged witnesses in a betrothal contract. For the Ordinary of the place or the pastor alone suffices to sign the writing with the contracting parties, while, if they are absent, two signing witnesses are required.
a) Under the name of Ordinary of the place there come, besides the Roman Pontiff, each for his own territory: the residential Bishop, Abbot or Prelate nullius, Vicar General, Administrator, Vicar or Prefect Apostolic, and all who, when the aforesaid are lacking, exercise their office ad interim, e.g., the Capitular Vicar, when the Bishop is dead or removed.
b) Under the name of pastor there come:
- The pastor properly so called.
- The quasi-pastor, i.e., one who governs a quasi-parish or a part of an apostolic Vicariate or Prefecture.
- The vicar curate, i.e., a pastor in a parish whose habitual care pertains to a chapter or monastery.
- The vicar oeconomus, who undertakes the governance of a vacant parish.
- The substitute vicar, i.e., a priest to be approved by the Ordinary of the place, who in all things holds the place of a pastor absent for more than a week.
- The substitute vicar designated by the Ordinary to act in the place of a pastor who, by sentence, is to be deprived of his benefice, but is having recourse to the Holy See.
- According to the cases, either the first assistant vicar or the one senior in office, or the nearer pastor, or the Superior of a religious house, who assumes the governance of the vacant parish before the appointment of an oeconomus, unless provision has been made otherwise.
- The assisting vicar, when he supplies the place of the pastor in all things, or even if he supplies in part, when the care of souls in matrimonial matters is entrusted to him in the letters of deputation.
But assistant vicars, even those having the right of assisting at marriages, cannot supply for the pastor, because that office of assisting at betrothals is not delegable.2
2 S. C. C., 28 Mar. 1908, ad 6.
- The chaplain or rector of a pious place of whatever kind exempt from parochial care, provided full parochial power has been committed to him, but only with regard to the persons entrusted to him and in the place where he presides.3
3 S. C. C., 1 Feb. 1908, ad 10.
The pastor or Ordinary does not validly assist at betrothals unless after having obtained possession of the benefice.4
4 Cf. Capello, op. cit., n° 92.
- IV. Witnesses.
No special quality in them is required by law. It suffices that they be capable of bearing testimony and of signing the writing.
It is not fitting to employ non-Catholics.
- V. What an appended condition effects in a betrothal contract.
a) When a condition concerning the present has been placed, the betrothals are immediately valid or invalid, according as the condition is verified or not.
b) If it concerns a necessary future thing, they are immediately valid.
If it concerns an impossible future thing, they are invalid, unless it is clear that the condition has been added jokingly.
If it concerns a future contingent thing resolutively, e.g., if it is said: We mutually promise matrimony, unless the parents refuse their consent, the betrothals are valid immediately, but, once the resolutive condition has been verified, they are dissolved.
If it concerns a future contingent thing suspensively and honestly, the validity of the contract is suspended, with the obligation of awaiting the event. Once the condition has been verified, the betrothals immediately become absolute by the fact itself. If the condition is not verified, every obligation ceases, unless the condition has been revoked explicitly or implicitly, or the other party has culpably impeded the condition from being verified.
If it concerns a future dishonorable thing and is against the substance of betrothals or of matrimony, the contract is invalid by natural law.
But if the dishonorable condition is not against the substance of betrothals or of matrimony, the betrothals still seem invalid. Nevertheless there are those who defend their validity.5
5 Capello, op. cit., n. 100.
- VI. Concerning the effects of betrothals.
Three are principally assigned:
a) A grave obligation of justice to contract matrimony at the due time.
Nevertheless, under the new law, there is not yet given from betrothals an action before the ecclesiastical tribunal for petitioning the celebration of matrimony, but only for obtaining reparation of damages. (Can. 1017 § 3.)
b) An inability validly to contract betrothals with another person.
c) An inability licitly to contract matrimony with another.
Nevertheless the aforesaid inability is not strictly a canonical impediment, although he sins mortally who, with betrothal faith broken without just cause, contracts matrimony with another person.
- VII. Concerning the dissolution of betrothals.
Betrothals can be legitimately dissolved in various ways:
a) By mutual consent fully free on each side.
b) By a notable change which supervenes, after the betrothals have already been contracted, whether the matter is new or newly known.
A change is judged notable which, if previously known, would have deterred from the betrothals.
A change of this kind can happen: in the goods of the soul, body, status, or fortune, or even in external circumstances, for instance if grave enmities have arisen between the parents of the spouses, etc.
c) By violation of betrothal fidelity on the part of one party: e.g., if one party falls into fornication with another person, or contracts matrimony or betrothals with another, or unduly delays the celebration of matrimony. For then the innocent party is altogether freed.
d) By election of a more perfect state.
For according to all, by natural law itself, in every betrothal contract this implicit condition is always judged to be present: "unless I shall have chosen a more perfect state."
But now one chooses a more perfect state not only who undertakes the religious or clerical state, as all acknowledge, but also one who emits a private vow of perfect chastity, of virginity, of not marrying, of receiving sacred orders, or of entering religion.
The party left behind immediately becomes altogether free. But most teach that the obligation of betrothals revives on the part of the one assuming the more perfect state if afterwards he leaves that state, provided that the more perfect state was, from its nature, temporary.
e) By dispensation of the Supreme Pontiff from a just cause.
For the Pope, who can dispense concerning a ratified non-consummated matrimony, a fortiori has the right of dispensing in the less firm contract of betrothals.