Question — Merkelbach, Summa Theologiae Moralis
Question Three: On the Form or Rite of the Celebration of Matrimony
844. General principle. - For the validity of the conjugal contract, from the nature of the thing there suffices deliberate mutual consent manifested in any way whatever; but by positive law conditions and formalities can be required for liceity or for validity: for it concerns the public good, namely, that a contract of such great moment not be entered unless it can be proved. Hence it has come about that among almost all peoples nuptial consent has been adorned with solemnities, and has been clothed with a varied liturgical or juridic form. Conditions and formalities can be prescribed by the civil power in the marriages of unbelievers; but in the marriages of Christians they are reserved to the power of the Church (n. 827, 1°). Therefore, just as the civil law can require a solemn form for the validity of a contract, or prescribe conditions for the validity of a testament, so the Church can establish a form as a necessary condition that matrimony be valid.
From what has been said it follows that clandestine matrimony, namely, which juridically cannot be proved by witnesses, is not of itself and by natural law invalid, indeed not even illicit. Before the Council of Trent no form had been prescribed for the validity of matrimony, and clandestine marriages entered without witnesses were not invalid; nevertheless the Church always held them as regularly, and excepting exceptional circumstances, altogether illicit, as is clear from Innocent III and from the decree itself of the Council of Trent confessing this, sess. 24, de ref., c. 1: "Holy Mother Church, for most just causes, has always detested and prohibited them," on account of the great dangers and inconveniences which are wont to be joined to private unions.
- Hence from the beginnings of the Church the Fathers require that matrimony be entered before the Church. Thus, for example, Ignatius, ad Polyc. 5; Tertullian, de Pud. 4.
That it might more efficaciously remove clandestine marriages and their inconveniences, the Council of Trent, in the year 1564, established this law: "Those who shall attempt to contract matrimony otherwise than in the presence of the pastor, or of another priest with the license of the pastor himself or of the Ordinary, and of two or three witnesses, the holy synod renders wholly incapable of so contracting, and decrees contracts of this kind to be invalid and null." Thus it decreed lest spouses afterward could with impunity turn aside to other nuptials, nor be compelled to remain with an illegitimate spouse on account of earlier nuptials unknown.
But the Tridentine decree was not obligatory except in individual parishes where it had been promulgated, which in many places was not done. Hence in several regions it did not oblige, and in certain others it was dispensed in for marriages either of heretics or mixed marriages, so that those entered clandestinely were valid. Wherefore there existed a great diversity in matrimonial legislation for the various parts of the Church.
To remove this diversity, a new discipline was introduced and became obligatory from April 19, 1908, by which matrimony not entered before the pastor or Ordinary, or a priest delegated for this, and two witnesses, would be everywhere null, certain exceptions being preserved; and this was admitted almost unchanged into the new Code of law. And thus uniformity was obtained in the whole Latin Church. Yet there is a certain difference between the new law and the Tridentine law, because in the latter clandestinity was an incapacity of the person for contracting matrimony, whereas now it is rather a defect of the juridic form required for the validity of the contract, and therefore it no longer constitutes an impediment taken in the stricter sense.
They object that the Church cannot change the matter and form of the sacraments instituted by Christ, and therefore cannot make it so that a valid clandestine matrimony is invalid. - But the Church does not change the matter and form of matrimony, which is the legitimate and valid contract between baptized persons; rather it posits the conditions required for this, that the contract be legitimate and valid: when these, namely, have been posited, the matter and form are present; and when they have not been posited, the matter and form of the sacrament are no longer had. In the same way, the Church cannot make it that the absolution of a priest enjoying jurisdiction is not the sacrament of Penance, but it can establish the conditions required that he have jurisdiction and so absolve validly, or on the contrary, if those are lacking, invalidly.
845. Principle I. The ordinary juridic form, required for the validity of matrimony, is the presence, together with two witnesses, of the Ordinary or pastor of that place in which the matrimony is celebrated. - This is established from can. 1094: "Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either of them, and at least two witnesses, according to the rules expressed in the canons which follow, and with the exceptions preserved of which in can. 1098-1099."
1° The Ordinary of the place or the pastor is required. By the name of pastor are understood both the pastor properly so called, or the priest to whom a parish has been conferred in title or stably, with the care of souls to be exercised under the authority of the local Ordinary (can. 451, § 1), and all who in law are equated with the pastor.
Equated with the pastor are:
1° Quasi-pastors, who administer quasi-parishes, or parts of an apostolic vicariate or apostolic prefecture to which a particular rector has been assigned (can. 451, § 2).
2° Parochial vicars, if they have been furnished with full parochial power (ibid.). These are:
a) The vicar curate, who rules a parish whose habitual care belongs to a moral person (can. 471).
b) The substituted vicar, who in all things holds the place of the pastor, whether he is to be deprived of the benefice and has recourse to the Holy See, or is absent for more than a week, and for this has been designated and approved by the Ordinary; or even before the approval of the Ordinary if the pastor departs for a sudden and grave cause for more than a week (can. 465, § 4 and 5, and 1923, § 2, together with 474; com. int., July 14, 1922).
c) The vicar oeconomus or administrator, who, when the parish is vacant, is constituted for its governance; and also the first cooperator vicar or the one older in office, or the neighboring pastor, or the superior of the religious house, according to the cases, who before the constitution of the oeconomus, unless it has been otherwise provided, meanwhile assumes the governance of the vacant parish (can. 472).
d) The vicar adjutor constituted by the Ordinary of the place, who in all things supplies the place of the pastor unequal to duly fulfilling his duties (can. 475).
But not simple cooperator vicars, who nevertheless can be generally delegated by the Ordinary for assisting; but this is not usually done ordinarily or everywhere.
3° Personal pastors who do not exercise jurisdiction over a determinate territory, but over determinate persons. Such are also considered those who together with another pastor in the same place exercise the care of souls with respect to determinate persons of some nationality, language, or rite; likewise chaplains or rectors of pious places exempt from parochial jurisdiction, if they are endowed with full parochial power, but only with respect to the persons entrusted to them and in the place where they exercise jurisdiction (S. C. C., Feb. 1, 1908); - whether also chaplains of soldiers, depends on peculiar prescriptions and is diverse in diverse regions.
2° At least two witnesses are required. In them no special quality is required by law; hence all are validly assumed, provided here and now they enjoy the use of reason and are capable of testifying. Non-Catholics, excommunicated persons, interdicted persons, and infamous persons are not licitly assumed, as the Holy Office declared concerning heretics, Aug. 19, 1891, unless a grave cause is present and scandal has been removed.
It is not required 1) that the witnesses be designated, forewarned, or asked concerning the matrimony to be contracted; nor 2) that they have an express intention of performing the office of witness; nor 3) that they assist freely, i.e., not coerced or fraudulently induced; nor 4) that the contracting parties formally assume them as witnesses, or even be conscious of their presence. It suffices that the witnesses be able to testify concerning the matrimony contracted; hence, if the witnesses are ignorant of the language, if an interpreter explains the words expressing consent, the matrimony is valid.
3° The presence of the pastor and of the witnesses is required: a) simultaneous, so that all can testify to the same act of marrying; b) physical or corporal, so that the witnesses are present by sight and hearing, and, holding themselves in the immediate surroundings or at a small distance, can connaturally perceive by sight or hearing what is being done; hence communication by telephone or telescope does not suffice; c) moral, so that at least from the circumstances they perceive that matrimony is being contracted between such determinate persons.
Hence there are excluded the insane, the perfectly drunk, those lacking the use of reason, and those who are blind and deaf at the same time; but not those who are only blind or only deaf.
846. Conditions required on the part of the pastor for valid assistance are enumerated in can. 1095, § 1:
"The pastor and the local Ordinary validly assist at matrimony:
1° Only from the day of canonical possession of the benefice having been obtained according to the norm of the canons..., or of office having been begun, unless by sentence they have been excommunicated or interdicted or suspended from office, or declared such;
2° Within the limits only of their territory; in which they validly assist at the marriages not only of their subjects, but also of non-subjects;
3° Provided that, constrained neither by force nor by grave fear, they request and receive the consent of the contracting parties."
Therefore three things are to be attended to:
A. As to time, assistance is valid from the day of canonical possession of the benefice or of office having been begun.
Now: 1° Canonical possession of the benefice, for bishops, is had as soon as in the diocese itself, by themselves or by procurator, they have shown the apostolic letters to the chapter of the cathedral church (can. 334, § 3); for others it is done according to the manner prescribed by particular law or introduced by legitimate custom (can. 1444, § 1).
2° Office having been begun is required for those who do not have a benefice, but only an office, such as the vicar general of the bishop, and the substituted or adjutor vicar of the pastor: it suffices, namely, that the one duly named begin to exercise the office at the time prefixed for this.
3° Valid assistance ceases by the very removal from office or benefice, and also by excommunication, interdict, or suspension from office, after sentence; but not by suspension from sacred things or from jurisdiction.
Let it be noted: a) Even a putative pastor or Ordinary validly assists, namely one who is not such on account of an occult defect, but by common error is reputed to be such: for the Church supplies his power in common error (can. 209); likewise a pastor whose censure passed by sentence is unknown to the parishioners.
b) Likewise in a positive and probable doubt of law or fact concerning his competence for assisting at matrimony (ibid.), because in this case also the Church supplies.
c) Not however, as it seems, an intruded pastor or Ordinary, who neither is such nor has been named such by legitimate authority, even if invalidly, but has been instituted by an illegitimate power, for example, the civil power.
B. As to place, the assistance of the pastor or Ordinary is valid within the boundaries of his territory.
Therefore: 1° Within the boundaries of his own territory he validly assists at the matrimony of all, even non-subjects; outside those boundaries, of none, even subjects.
2° In exempt houses and churches which are situated in his territory, he also validly assists, because they are exempt only by reason of persons (S. C. Sacr., March 12, 1910); it is otherwise if certain institutes have the privilege of extraterritoriality.
3° Where several pastors cumulatively possess the same territory, namely by reason of diverse language, rite, or nation, each one validly assists in the whole territory (S. C. C., Feb. 1, 1908), unless it has been otherwise established by particular law.
4° Personal pastors having jurisdiction only over determinate persons or families: if they are constituted for a determinate territory, they validly assist only in that territory and only for their own subjects; on the contrary, if their competence is restricted by no territory, they validly assist everywhere at the marriages of their subjects.
5° Rectors of pious places, who enjoy full parochial power, cannot assist except at the marriages of their own subjects and only in the place where they exercise jurisdiction (S. C. C., Feb. 1, 1908).
Let the difference from the Tridentine law be noted: according to it, the proper pastor of subjects was bound to assist at matrimony everywhere on earth, so that it was a personal law; but now the pastor validly assists in his territory alone at the matrimony even of non-subjects, so that the law is now territorial.
C. As to mode, it is necessary that the pastor or Ordinary, constrained by no force nor grave fear, request the consent of the contracting parties.
Hence: 1° Force and grave fear, whether brought by the contracting parties or by another, even not unjustly for extorting assistance, invalidates this assistance; but not fear arising from within or from another event, or ordered to the very observance of the law, nor deceit or fraud, even if they were the cause of the assistance.
2° Merely passive assistance of the pastor does not suffice, but active assistance is required: it does not suffice that the contracting parties issue consent before the pastor noticing it, but he himself must by a positive act inquire after and receive their consent.
Let it be noted: a) It makes no difference for validity whether the pastor inquires after consent by himself or through an interpreter, by words or writing or a sign.
b) By the Tridentine law only the passive assistance of the pastor was required, and thus spouses unexpectedly appearing before him and with witnesses, and eliciting consent contrary to his will, contracted validly; this inconvenience is now avoided, since the actual law requires active parts of the pastor, so that if he resists, the consent issued is not valid.
847. Conditions required on the part of the pastor for licit assistance are indicated by can. 1097:
"§ 1. But the pastor or the local Ordinary assist licitly at matrimony:
1° When the free state of the contracting parties has been established to him according to the norm of law (n. 836-842);
2° When, moreover, the domicile or quasi-domicile or monthly residence, or, if there is question of a wanderer, the actual residence of one of the contracting parties in the place of matrimony has been established;
3° When, if the conditions of which in n. 2 are lacking, the license has been had of the pastor or Ordinary of the domicile or quasi-domicile or monthly residence of either contracting party, unless the matter concerns wanderers actually itinerant, who nowhere have a seat of residence, or a grave necessity intervenes which excuses from seeking the license."
Here the following is to be observed: 1° Domicile or quasi-domicile is not required; monthly residence in the parish suffices for the pastor licitly to assist.
2° For that, intention of residing is neither required nor sufficient; but the real fact of residence for a continuous month suffices and is required; nor is dwelling required, but residence in the manner of a guest or worker also suffices.
3° Residence morally continuous suffices, to which the absence of one or another day and night does not seem to be an obstacle, indeed not even absence during the day alone; but it must be continued up to the day of matrimony.
4° The month seems to be computed as in the calendar, so that the first day is not counted and the time is ended when the day of the same number of the following month has been completed (for example, from the 15th to the 15th completed); and if such a number is not had, the time is ended when the last day of the following month has been completed (for example, Jan. 30 to Feb. 28, Aug. 31 to Sept. 30). Some, however, take the month as a continuous space of 30 days.
5° Actual residence, which under certain given conditions suffices, is to be understood as residence for a time of some moment, so that someone can be said to have there a seat of residence.
6° The license required in the case in which neither contracting party has domicile, quasi-domicile, or monthly residence in the place where he wishes to marry can be conceded orally or in writing, expressly or tacitly, indeed generally, or even be reasonably presumed; in which case it is fitting to warn the proper pastor.
7° Grave necessity excuses from seeking the license, namely notable inconvenience on the part of the pastor or of the future spouses, such as the necessity of departing on account of imminent danger, danger of death, an error of domicile detected at the last hour, concubinage to be ended or forestalled when time for recourse is lacking.
"§ 2. In any case let it be held as the rule that matrimony be celebrated before the pastor of the bride, unless a just cause excuses; but marriages of Catholics of mixed rite, unless something else is provided by particular law, are to be celebrated in the rite of the man and before his pastor."
A twofold obligatory rule is established:
1st. That matrimony be celebrated before the pastor of the bride. This obliges only under light matter, and a reasonable cause excuses from it, as if the bride is non-Catholic, or the pastor of the groom is a relative of either contracting party, or the house of the groom more easily permits the nuptials to be carried out, or several marriages are celebrated on the same day in the same family, or the parochial church of the groom is near the house and the church of the bride very remote, etc. Such a just cause standing, no license is required from the pastor of the bride, although it is fitting to warn him.
2nd. That matrimony of Catholics of mixed rite be celebrated in the rite and before the pastor of the man. Unless, however, it is otherwise established by particular law, or it is not licit by reason of canon 1099, § 1, 3°, as if a man of some Oriental rite, in which the Latin form of celebrating matrimony is not observed, contracts with a woman of the Latin rite who according to canon 1099 etc. is held to the form. (Cf. Response of the Commission for the Interpretation of the Code on July 8, 1948; Acta Apostolicae Sedis, XL, 1948, p. 386.)
"§ 3. The pastor who assists at matrimony without the license required by law does not make the stole emoluments his own, and he shall remit them to the proper pastor of the contracting parties."
The emoluments to be returned are:
- Only those which are owed to the pastor as such from the very celebration of matrimony, but not the stipend of the Mass celebrated, or gifts made from friendship, or those paid to the ministers and the church.
- They are to be returned by justice, and indeed before the sentence of a judge, because the law prevents the pastor from making the emoluments his own, i.e., from acquiring dominion over them.
- They are to be returned to the pastor of the bride; if there are several pastors, let them be divided among them, or perhaps they can be given to the one who would otherwise have assisted.
- They are not to be restored by the pastor if he acted from a reasonably presumed license, or if he did not have to seek the license because grave necessity excused.
- Nor perhaps are they to be restored if the pastor remitted them without a just cause, because the law seems to be understood concerning fruits received; unless, however, he fraudulently took care that they be handed over to him under another title.
848. Principle II. The competent pastor or local Ordinary can delegate another priest, who can validly assist at matrimony in his place. - Thus can. 1095, § 2: "The pastor and local Ordinary who can validly assist at matrimony can also give license to another priest to assist validly at matrimony within the boundaries of their territory."
The local Ordinary and the pastor can delegate; under the name of pastor come all those indicated above (n. 845), who therefore all have the power of delegating (com. int., May 20, 1923); - but not cooperator vicars unless they have been generally delegated for assisting at marriages (ibid.).
Nevertheless: 1) The Ordinary and the pastor cannot delegate unless they themselves can validly assist; hence
a) delegation outside the boundaries of their territory is not valid;
b) nor is it valid if they are excommunicated, interdicted, or suspended from office and sentence has intervened;
c) those personal pastors who are bound to no territory, just as they can assist at marriages, so also they have the power to delegate everywhere on earth.
- The delegate cannot subdelegate, unless the delegator has expressly conceded this faculty to him, or unless the delegate has been generally delegated for assisting at marriages (com. int., Dec. 28, 1927).
A. The conditions for the validity of delegation are enumerated in can. 1096, § 1: "The license of assisting at matrimony... must be given expressly to a determinate priest for a determinate marriage, with any general delegations excluded, unless there is question of cooperator vicars for the parish to which they are attached; otherwise it is invalid."
Therefore it is necessary: 1° That the delegate be any priest whatsoever, even if he is not furnished with special qualities, for example, is not approved for the care of souls.
2° That he be a determinate priest, although not known to the delegator; hence a license given to the spouses of choosing the priest whom they should prefer would be invalid, or to any religious to be designated by the superior (S. C. Sacr., March 12, 1910), or of subdelegating someone indeterminate; nevertheless delegation of several is valid, for example, of all staying in the parish. It matters little how the determination is made: by name, title, or office of the contracting parties, by the hour or place of celebration, immediately or through another, for example, the groom, who notifies the delegation.
3° That he be determined to a determinate marriage, or several determinate marriages; but not for assisting at all marriages or at a certain category of marriages or at those which are to be contracted this month, unless there is question of cooperator vicars. For these, but only for the parish which they serve, can be generally delegated to all or to a certain category of marriages; although by common law, by the very fact that they are constituted cooperators, they are not generally delegated.
4° The delegation must be given expressly, whether in writing, or by words, or by nods or another explicit or implicit sign, or even by the work of telegraph or telephone; tacit, presumed, interpretative delegation is not valid, a fortiori not mere toleration or ratihabition after the assistance. Hence substantial error impedes delegation, namely, error concerning the very person of the one to be delegated or of the future spouses.
5° The delegation must be known to the delegate and accepted by him at least implicitly; unless, however, the delegation is conceded by law or by statute.
Let it be noted: a) That the delegate may validly assist at matrimony, he must conduct himself in the same way as the delegator must proceed, and within the boundaries of the territory of the delegator he must inquire after and receive consent.
c) Delegation ceases when the mandate has been completed; when the time has elapsed or the number of cases for which it had been conceded has been exhausted; when the final cause of the delegation ceases; by revocation made by the delegator and directly intimated to the delegate; but not by the death or resolved death of the delegator, unless this had been expressly established (cf. can. 207).
d) In common error the Church supplies, if someone is commonly thought to have the faculty of assisting.
B. The conditions for licitly delegating are indicated by can. 1096, § 2: "Let the pastor or local Ordinary not concede license, unless all things have been completed which the law establishes for proving liberty of state."
Therefore not unless the examination of the spouses, investigations, and denunciations have been carried out. Moreover, that the delegated priest may assist licitly, he must observe all things which are to be observed by the pastor, as was said in n. 847.
849. Principle III. The extraordinary juridic form, in defect of the Ordinary or pastor or delegated priest, sometimes sufficient for validity, is the presence alone of two witnesses. - This is established from can. 1098:
"If the pastor or Ordinary or delegated priest who assists at matrimony 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 this condition of things will last for a month;
2° In either case, if another priest is at hand who can be present, he must be called and assist at the matrimony together with the witnesses, the validity of the union before witnesses alone being preserved."
Therefore: A. For validity, the extraordinary form or presence of two witnesses can suffice only if grave inconvenience stands in the way so that the pastor or Ordinary or delegated priest cannot be had or approached.
There suffices 1) any grave inconvenience whatever, spiritual or temporal, whether it directly affects the parties, or the priest (Commission for the Interpretation of the Code, May 3, 1945), provided that this inconvenience is an impediment to the physical presence of the Ordinary or pastor (Commission I. C., March 10, 1928), even if they are not absent from the place but materially present there (Commission I. C., July 25, 1931). Such are considered: the incarceration of a future spouse joined to the impossibility of having a competent priest, the closure of all approaches in time of war, residence in a remote region where no competent priest is present, a long journey joined to the aforesaid impossibility, etc.; - on the contrary, the mere refusal of the pastor does not suffice, nor any material damage whatever; whether a grave civil prohibition suffices can happen (rescript S. C. Sacr., April 24, 1935, to ep. Met.), but it seems to depend on the nature and gravity of the inconvenience; yet in practice, on account of many inconveniences easily arising, in individual cases recourse must be made to the competent ecclesiastical authority, as has been declared several times. 1
- Personal impossibility suffices and is required; common or local impossibility is not required, nor does common impossibility suffice if personal impossibility is lacking. Therefore that impossibility can arise not only from defect or scarcity of priests, but also from persecution, from epidemic, from the reputation of a penitent to be preserved, from grave inconvenience to the minister to be feared on a journey, etc.
- No special cause is required; any motive whatever for entering matrimony suffices.
B. The aforesaid impossibility standing, matrimony so entered is valid in only two cases, besides the case of a legitimate dispensation obtained over the assistance of the pastor. The cases are: danger of death, and impossibility which with moral certitude is foreseen to last for a month.
1° Danger of death, grave or proximate, from any cause whatever, threatening either of the contracting parties, certain or very probable, so that an error in estimating the danger does not harm the validity of the matrimony, provided the estimation is prudent.
2° Outside danger of death, if it is prudently foreseen that this condition of things will last for a month. In the case:
a) It is not required that that condition of things have already lasted for a month, or that the pastor has been absent for a long time; it suffices that it is prudently to be presumed that he will not be present within a month, even if in fact the estimation is erroneous.
b) Yet a probable presumption does not suffice; moral certitude is required, from notoriety or from inquiry, concerning the continuance of the same condition of things, nor does the fact of the pastor's absence suffice (com. int., Nov. 10, 1925).
c) The month must be continuous and complete: it seems to be taken as in the calendar (n. 847, § 1); some, however, take it for a space of 30 days.
d) The nuptials are valid, even if the future spouses have acted in fraud of the law, deliberately deferring matrimony to the time at which the competent priest would be absent, or transferring themselves to a place where a competent priest cannot be had or approached.
- Cf. I. De Becker, De recto sensu can. 1098, in Eph. Theol. Lov., 1932; Conc. Mechl. IV, decr. 214. - Some judge that this impossibility subsists, even if the pastor or Ordinary could be reached by means of telegraph or telephone, or by automobile, because these are extraordinary means. But that such means are still extraordinary can deservedly be doubted. An extraordinary means would be an airplane.
C. For licitly entering matrimony in these cases, it is required that another priest, if he is at hand, be called and assist with the witnesses.
The priest is prescribed to be called, but not under penalty of invalidity; it suffices that he assist merely passively, and he need not inquire after the consent, just as neither must the witnesses do this. But every priest is to be called, even one under censure, but not a vitandus. In danger of death, a priest has a broad faculty of dispensing over impediments, as will be said in n. 922.
"§ 1. To observing the form established above are held:
1° All baptized in the Catholic Church and converted to it from heresy or schism, although either the former or the latter afterward defected from it, as often as they enter matrimony among themselves;
2° The same, of whom above, if they contract matrimony with non-Catholics, whether baptized or not baptized, even after a dispensation has been obtained from the impediment of mixed religion or disparity of worship;
3° Orientals, if they contract with Latins bound by this form." 1
Therefore, to the law prescribing juridic form:
1° All of the Latin rite, baptized in the Catholic Church, are held, namely those who, with regard to the end of the one acting, i.e., of the one baptizing or commanding Baptism, are baptized in order to the Catholic Church, or formally with this end, that they be joined to the external communion of the Catholic Church; such are:
a) infants whom parents or those holding their place take care to have baptized that they may become members of the Catholic Church,
b) infants born of Catholic parents and privately baptized in a case of necessity,
c) adults who by their own will receive Baptism with the intention that they be joined to the Catholic Church.
2° Converts to the Catholic Church from heresy or schism are also held, namely those who of their own accord have professed the Catholic faith; and non-Catholics baptized who from infancy, i.e., at least from the first use of reason, in fact were educated in the Catholic faith: provided they are of the Latin rite.
- Hence a woman who, by force of can. 98, § 4, declares that she wishes in entering matrimony to pass to the Oriental rite of the man, is held to the form of the celebration of matrimony (com. int., April 29, 1940).
3° All these are held, even if afterward they defected from the Catholic Church.
4° They are held as often as they contract either among themselves, or with all others who are immune from the law, whether Orientals or non-Catholics, even with dispensation from the impediment of mixed religion or disparity of worship. For the party immune from the law does not communicate his immunity to the other party, but the party bound communicates the bond to the other, who then is held per accidens.
5° All are held in the whole world.
"§ 2. But the prescription of § 1, n. 1, remaining firm, non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere held to observing the Catholic form of matrimony."
The second part of this paragraph, "likewise those born of non-Catholics, although baptized in the Catholic Church, who from infancy have grown up in heresy or schism, or infidelity, or without any religion, as often as they contract with a non-Catholic party," was abrogated by the motu proprio Decretum Ne temere of Aug. 1, 1948. From Jan. 1, 1949, therefore, all baptized in the Catholic Church are held to observing the canonical form of matrimony. Since, however, that law does not have retroactive force, the second part of can. 1099, § 2 retains its force for those who contracted matrimony before Jan. 1, 1949.
Therefore from observing the juridic form:
1° Immune are: a) the non-baptized; b) those baptized in a heretical or schismatic sect and never converted; c) Catholics of Oriental rite, unless by special law they are bound to this.
2° They are immune only while they contract among themselves, or with a non-Catholic party who likewise is immune from the law, and indeed wherever they are dwelling.
3° Those baptized in the Catholic Church are not immune, whether they were born of Catholics or of non-Catholics, although from infancy they were educated outside the Church.
851. Notice concerning marriages formerly celebrated. - The legislation of the Code does not have retroactive effect; hence concerning the validity of marriages celebrated before the Code, judgment must be made according to Tridentine law, or, from April 19, 1908, according to the provisional legislation of the decree Ne temere, Aug. 2, 1907.
Especially three things are to be attended to:
1° According to Tridentine law, the assisting pastor was the proper pastor, namely of domicile or quasi-domicile of either of the future spouses; now it is the pastor of the place.
2° Tridentine law, where it had been promulgated, was of itself obligatory for marriages of heretics among themselves; the new law excepts these.
3° In certain regions dispensation had been made from Tridentine law both for marriages of heretics and for mixed marriages; now the presence of the pastor is universally required in mixed marriages.
852. The liturgical form to be observed. - By the name of liturgical form is understood the complex of rites and ceremonies which accompany the celebration of Christian matrimony and which are prescribed in ritual books approved by the Church or are received by laudable customs. Concerning this, can. 1100 prescribes:
"Outside a case of necessity, in the celebration of matrimony let there be observed the rites prescribed in ritual books approved by the Church or received by laudable customs."
A. The liturgical form is found in the Roman Ritual, tit. 7, c. 2; it comprises three things: the first is the interrogation concerning mutual consent and the pronouncing of the copulative formula, the hands of the spouses being joined, under the words: I join you in matrimony in the name of the Father and of the Son and of the Holy Spirit, or by other similar words according to the received usage of each place; the second is the blessing and handing over of the ring; the third is the solemn blessing with the Mass for the groom and bride.
There is a grave obligation of observing the liturgical form from the Council of Trent, sess. 7, can. 13, and from various decrees of the S. C. C., even in second nuptials. Hence one who without legitimate cause omitted the whole ceremony would sin gravely; and Catholics who in a case of necessity have contracted matrimony without ceremonies ought to take care that these be supplied as soon as possible, in which case the formula I join you... is omitted.
B. With the ceremonies is connected the solemn blessing, which, after matrimony has been celebrated, is imparted to the spouses during the solemnities of Mass, according to the rite of the Roman Missal in the Mass for the groom and bride. Yet this blessing is not strictly prescribed, whence there are also certain places where it is more rarely conceded. Concerning it, can. 1101 says:
"§ 1. Let the pastor take care that the spouses receive the solemn blessing, which can be given to them even after they have lived for a long time in matrimony, but only in Mass, the special rubric being observed and the closed time excepted.
"§ 2. Only that priest can give the solemn blessing, by himself or through another, who can validly and licitly assist at matrimony." For it is a function reserved to the pastor.
Let it be noted: a) The blessing can be given only in Mass and indeed by the celebrant (S. Off., Aug. 31, 1881).
b) The blessing must be omitted:
1° in the closed time, namely, from the first Sunday of Advent to the Nativity of the Lord inclusively, and from Ash Wednesday to Easter of the Resurrection inclusively; which they say is prescribed under grave matter, unless the Ordinary grants license;
3° when the woman has already received the blessing in preceding nuptials (can. 1143); indeed there are places in which the blessing cannot be conceded even to widowed men, which according to the ritual seems still to be observed (tit. 7, c. 1, n. 18);
4° when only one Mass is celebrated in the rite of the dead, and on the day of the commemoration of all the faithful; because in a Mass of requiem such a blessing cannot be received (S. Off., Sept. 3, 1817); in which case it can be remitted to another day;
5° on account of a general interdict affecting the place, or a particular interdict affecting the church in which the nuptials are celebrated (can. 2271, 2° and 2272, § 3, 2°);
6° when matrimony is entered with one notoriously excommunicated (S. Poen., Dec. 10, 1860).
c) The Mass for the groom and bride is prohibited on Sundays, feasts of the first and second class, privileged octaves of the first and second order, privileged ferias, and vigils of the Nativity, Epiphany, and Pentecost; but if the nuptial blessing can be given from license of the Ordinary, the Mass of the day is to be said with the prayer for the spouses added.
d) Nothing prohibits one priest from inquiring after and receiving the matrimonial consent, and another from celebrating Mass and imparting the solemn blessing, provided they have the due competence.
"In marriages between a Catholic party and a non-Catholic party, the interrogations concerning consent must be made according to the prescription of can. 1095, § 1, n. 3. But all sacred rites are prohibited; but if graver evils are foreseen from this prohibition, the Ordinary can permit some of the customary ecclesiastical ceremonies, always excluding the celebration of Mass."
Therefore in mixed marriages:
1° The priest must always inquire after and receive the consent even from the non-Catholic party; nor does merely passive assistance suffice for validity (com. int., March 10, 1928).
2° All sacred rites are of themselves prohibited, such as the use of sacred vestment, a sermon properly so called, the blessing of the ring, the blessing of the nuptials, celebration in church, etc.
3° For avoiding graver evils, such as hatred toward the Catholic religion, danger of a merely civil union or of the perversion of the Catholic party, celebration of the nuptials before a non-Catholic minister, etc., the Ordinary can concede certain ceremonies, but not the celebration of Mass nor consequently the solemn blessing connected with it.
Notice: a) The priest who celebrates Mass for the groom and bride is not bound to apply it to them, unless it has been specially contracted thus.
b) At the end of the Roman Ritual is found the formula of the nuptial blessing to be used when Mass is not said, and the formula of prayers which can be recited if the blessing is not permitted. Yet these cannot be imparted except from a special indult.
853. The time and place of celebration are determined in the code of law:
A. "Matrimony can be contracted at any time of the year. Only the solemn blessing of nuptials is forbidden from the first Sunday of Advent up to the day of the Nativity of the Lord inclusively, and from Ash Wednesday up to Easter Sunday inclusively. Yet local Ordinaries can, with liturgical laws preserved, permit it even in the aforesaid times from a just cause, the spouses having been warned that they abstain from excessive pomp" (can. 1108).
Therefore: 1) There no longer exists a prohibiting impediment, namely the forbidden time, which in certain places in the closed time prohibited marriages; nevertheless, by particular law they can be prohibited at certain hours, for example, evening or night hours.
- The solemn blessing can be conceded by the Ordinary, with liturgical laws preserved concerning the Mass for the spouses sometimes not to be said.
- Then, in the forbidden time, there must be abstention from pomp, such as the sound of bells, public festivity, splendid adornment of the church, solemn escorting of the bride with dances and music. Moderate signs of joy are not forbidden.
B. "Matrimony between Catholics is to be celebrated in the parochial church; but in another church or oratory, whether public or semi-public, it can be celebrated only with the license of the local Ordinary or pastor" (can. 1109, § 1).
Nevertheless: 1° "Local Ordinaries can permit matrimony to be celebrated in private houses only in some extraordinary case and with a just and reasonable cause always acceding; but in churches or oratories either of a seminary or of religious women, let Ordinaries not permit this unless necessity is urgent and suitable cautions have been applied" (can. 1109, § 2). An extraordinary case can be inability or difficulty of going to church, or necessity of secretly convalidating a matrimony; urgent necessity, the destruction of the parochial church.
2° "But marriages between a Catholic party and a non-Catholic party are to be celebrated outside church; but if the Ordinary prudently judges that this cannot be observed without graver evils arising, it is committed to his prudent judgment to dispense in this matter, yet the prescription of can. 1102, § 2 remaining firm," namely, concerning Mass not to be permitted (can. 1109, § 3).
854. Observations concerning the inscription of celebrated matrimony. - Let the following ordinances be noted:
1° "When matrimony has been celebrated, the pastor or the one who holds his place shall as soon as possible write in the book of marriages the names of the spouses and witnesses, the place and day of the matrimony celebrated, and other things according to the manner prescribed in the ritual books and by his proper Ordinary; and this even if another priest, delegated either by him or by the Ordinary, assisted at the matrimony" (can. 1103, § 1).
2° "Moreover... the pastor shall also note in the book of the baptized that the spouse contracted matrimony on such a day in his parish. But if the spouse was baptized elsewhere, the pastor of the matrimony shall transmit notice of the contract entered to the pastor of Baptism, either by himself or through the episcopal curia, so that the matrimony may be entered into the book of the baptized" (can. 1103, § 2).
This latter pastor should transcribe the notices received in his book of the baptized, and send written notice of the transcription having been carried out to the pastor who assisted at the matrimony. But he should not acquiesce until he has received this notice; and once received, he should attach it to the bundle of documents of the celebrated matrimony.
3° "As often as matrimony is contracted according to the norm of can. 1098 (i.e., under the extraordinary form), the priest, if he assisted at it, otherwise the witnesses, are held in solidum with the contracting parties to take care that the union entered be noted in the prescribed books as soon as possible" (can. 1103, § 3).