Article III: The Form Permitted by the Code in Extraordinary Cases

222. • I. The Code posits two cases in which one can validly and licitly depart from the customary celebration of matrimony.

"If the parish priest or Ordinary or delegated priest who are to assist at matrimony according to the norm of cc. 1095, 1096 cannot be had or approached without grave inconvenience:

1° In danger of death matrimony before witnesses alone is valid and licit; and also outside danger of death, provided it is prudently foreseen that that condition of things will endure for a month;

2° In either case, if another priest is at hand who can be present, he must be called and, with the witnesses, assist at the matrimony, the validity of the union before witnesses alone remaining intact." (Can. 1098.)

223. • II. The former case: in danger of death.

a) Three conditions are required:

1. Danger of death.

The danger suffices, as we have already said above at n. 185, 1, 1°, from whatever cause, threatening either of the contracting parties, grave, certain, or seriously probable. Error in estimating the danger does not harm the validity of the matrimony.

It matters little what the motive cause of the matrimony is.

2. A grave inconvenience preventing the parish priest or Ordinary or delegated priest from being had or approached.

Any grave inconvenience suffices, spiritual or temporal, affecting either the parties, or the priest, or a third person, so that the parish priest is considered unable to be had or approached.

3. Presence of two witnesses.

There must be at least two witnesses, as in the ordinary celebration of matrimony, and they must conduct themselves in the same way.

b) 1. If another priest who can be present is at hand, he must be called and must assist with the witnesses, even if bound by censure, provided he is not, however, a vitandus.

2. Nevertheless this is not prescribed under penalty of invalidity of the matrimony.

3. Such a priest has the very ample faculty regarding dispensation from impediments, as was said above at n. 188 b).

4. If such a priest is lacking and there is a diriment impediment of ecclesiastical law, concerning which the Church is accustomed to dispense, probably the union can be validly celebrated, the ecclesiastical law ceasing in conflict with the natural law.¹

¹ Capello, cited work, n. 692, 4.

224. • III. The other case: outside danger of death.

a) Three conditions are required:

1. A grave inconvenience preventing the parish priest or Ordinary or delegated priest from being had or approached.

As above, n. 223, a) 2.

2. A prudent estimate that that condition of things will endure for a month.

1. It makes no difference whether the qualified witness has been absent for a long or a short time. It suffices that it is prudently to be presumed that he will not be present within a month, although in fact that foresight may be erroneous.

2. The month must be continuous and complete.

3. The nuptials are valid, even if the nupturients have acted in fraud of the law.

3. Presence of two witnesses.

225. • IV. What sort of absence of the qualified witness suffices so that there is place for the celebration of matrimony with witnesses alone?

This question of very great moment was disputed among authors: namely, whether matrimony is valid without the intervention of the parish priest or delegated priest, when the parish priest indeed can be approached or summoned, but refuses to celebrate the matrimony, e.g., because the civil law forbids him to celebrate it, in a case in which the nupturients have not been joined by civil matrimony and cannot be joined.

And indeed the greater part of authors judged that such a matrimony was altogether valid, since here at least the law obliging matrimony to be celebrated before the parish priest was doubtful.

But on the 10th day of the month of March 1928, the Pontifical Commission for the authentic interpretation of the Code of Canon Law promulgated a response which altogether settles the cause. "Q. Whether canon 1098 is to be understood so that it refers only to the physical absence of the parish priest or local Ordinary.

R. In the affirmative."²

² A.A.S., XX, 1928, p. 120.

Therefore now there is no doubt that such matrimonies to be celebrated henceforth are altogether invalid. But it seems that those which had been celebrated in such a way beforehand were valid, on account of the doubtful character of the law.

226. • V. As in danger of death, so also in other cases, another priest must be called if he is at hand, so that he may assist at the matrimony with the witnesses. Cf. n. 223, 3. b.