Question — Merkelbach, Summa Theologiae Moralis
Question Two: On the Preliminaries to Matrimony and on the Proclamations of Banns
836. Matter to be treated. - Before matrimony is celebrated, it must be established that nothing stands in the way of its valid and licit celebration (can. 1019, § 1). But the manner in which this must be established by positive arguments is diverse in danger of death and outside this danger.
a) In danger of death, if other proofs cannot be had, there suffices, unless contrary indications are present, the sworn affirmation of the contracting parties that they are baptized and are held by no impediment (can. 1019, § 2).
b) Outside danger of death, the pastor is bound by office 1) to institute the examination of the spouses (can. 1020, § 1); and 2) publicly to announce the matrimony through the publications of banns (can. 1022): lest namely any matrimony ever be contracted whose valid or licit celebration something would impede.
837. The examination of the spouses is to be instituted, so that it may be established that nothing stands in the way of the matrimony to be celebrated by the spouses, whereby it could not be celebrated validly and licitly. Concerning this, the following ordinances of law are to be attended to.
I. "The pastor to whom belongs the right of assisting at the matrimony, at a suitable time beforehand, shall diligently investigate whether anything stands in the way of the matrimony to be contracted" (can. 1020, § 1).
The pastor, by force of his office, is bound under grave matter to make that investigation, because he is bound to procure those things which are required for the valid and licit administration of the sacraments; whence he is bound to do this to whom belongs the right of assisting at the matrimony, and indeed at a suitable time beforehand, i.e., before the proclamations are publicly announced, and diligently, because the matter is one of great moment. Let him personally carry out the examination, unless a just cause excuses him.
But if the right of assisting at the matrimony belongs to several, the pastor of the bride is to be preferred; but with his consent the pastor of the groom also can institute the examination and procure the other necessary things. And if the groom is impeded from going to the place of the bride for undergoing the examination, his pastor, at the request of the pastor of the bride, institutes the examination and transmits testimony of it to the pastor of the bride. These things also could be introduced by usage or perhaps by a particular statute of the diocese.
Before he proceeds to the examination, the pastor should first inquire: a) whether in fact he has the right of assisting at the matrimony, or at least of examining the spouses; b) in which parishes the publications are to be made; c) whether the future spouses are of their own right or minors, namely, in order to the consent of parents.
II. "Let him question both the groom and the bride, also separately and cautiously,
1° whether they are held by any impediment,
2° whether they give consent freely, especially the woman,
3° and whether they are sufficiently instructed in Christian doctrine, unless by reason of the quality of the persons this last questioning appears useless" (can. 1020, § 2).
And so the examination is to be instituted:
1° Concerning diriment and impeding impediments, and indeed always, even as far as possible in danger of death: first in the presence of the spouses together for public impediments, then with the groom and bride separately and prudently for occult impediments, especially if they imply sin, concerning which the pastor could prudently warn that there is no obligation of revealing to him an infamous impediment, but that it can also be declared to a confessor who will procure the dispensation.
The pastor should diligently investigate concerning the degree of consanguinity or affinity by which perhaps the future spouses are joined, and should carefully explore whether they are bound by the impediment of bond. Wherefore, if the case requires, inquiry should be made concerning the death of a preceding spouse, concerning a sentence of nullity of matrimony, concerning a dispensation over ratified and non-consummated matrimony, all legitimate documents relevant to the matter having been gathered (S. C. Sacr., June 29, 1941).
Nor should inquiry be made only concerning impediments properly so called, but concerning all things which can stand in the way of entering matrimony licitly, such as apostasy from the Church, enrollment in a condemned society, the state of a public sinner or a notorious censure, reasonable opposition of parents (can. 1065, 1066, 1034), a pledge made to others, a civil formality not yet fulfilled or a legal license to be obtained, etc.
2° Always also concerning the liberty of matrimony, especially with the bride, namely, concerning the free choice of matrimony and with such a person, so that neither party enters the union deceived by simplicity or fraud, nor seduced by importunate prayers or occasions, nor coerced by force and fear.
Nor should he acquiesce when perhaps negative responses have been given by them, the S. Cong. Sacr. warns on June 29, 1941, but he should also carry out other investigations for more securely proving the liberty of consent. Pastors should carefully weigh that one of the principal heads of nullity of marriages which are brought to ecclesiastical tribunals consists in force or fear having been brought to bear.
If in some place there are found those who presume to enter nuptials with some condition or intention added, whether suspensive or invalidating of consent, the pastor should strive with every effort to turn the future spouses away from adding conditions of this kind to matrimony, and to induce them to retract those perhaps already added. But as to the legitimate addition of some condition concerning the future, present, or past, the pastor should consult the Ordinary and obey his commands.
3° Concerning Christian doctrine, which is never to be omitted, unless the pastor knows with certainty from elsewhere that the spouses are sufficiently instructed. Let him inquire:
a) Concerning necessary knowledge, both generally 1. of truths which must be known by necessity of means and of precept, which spouses ought to know not only for their own salvation, but also for the salvation of future offspring to be educated by them; - and especially 2. of the obligations and ends of the conjugal state. Therefore "let the pastor not omit, according to the diverse condition of persons, to teach the spouses the sanctity (and indissolubility) of the sacrament of matrimony, the mutual obligations of spouses, and the obligations of parents toward offspring" (can. 1033); nevertheless this instruction is not always to be made together with the examination itself of the spouses, but sometimes can more opportunely be deferred so that it may be done shortly before matrimony.
But if someone is found ignorant of Christian doctrine, the pastor should teach him, or see that he is taught, at least the first elements of Christian doctrine; but if he refuses, he is not for that reason to be rejected from matrimony (com. int., June 2, 1918): for he is not a public sinner.
b) Furthermore, concerning Baptism. "Unless Baptism was conferred in his own territory, the pastor shall require the testimony of Baptism from both parties, or from the Catholic party only, if there is question of matrimony to be contracted with dispensation from the impediment of disparity of worship" (can. 1021, § 1); whence, if there is question of matrimony of mixed religion, the testimony of Baptism must also be required from the non-Catholic party.
The code also adds: "Catholics who have not yet received the sacrament of Confirmation shall receive it, before they are admitted to matrimony, if they can do this without grave inconvenience" (can. 1021, § 2), because afterward it is less easily received and more frequently neglected. Concerning the sacraments inquiry must be made, legitimate documents having been gathered. The testimony of Baptism ought to be recent, nor written before six months prior to the matrimony being entered. 1 (S. C. Sacr., June 29, 1941).
But if testimony concerning Baptism received cannot be had, the affirmation of one witness above every exception, or the oath of the subject himself, if he received the sacrament in adult age, suffices (can. 779). Nevertheless the pastor should not easily believe the affirmation, even sworn, of the future spouses that they have been baptized, unless this is certainly established to him from elsewhere; and let him seek the testimony of the pastor of the place of origin of the future spouses (S. C. Sacr., June 29, 1941). But if every proof should be lacking or, investigation having been made, a probable doubt concerning the validity of Baptism should remain, the Catholic would have to be rebaptized under condition; and if certainly he had not been baptized, or certainly not validly, he would have to be baptized absolutely.
c) Finally, concerning the preparation for matrimony through the reception of the sacraments. The pastor should "vehemently exhort" the spouses "that before the celebration of matrimony they diligently confess their sins and piously receive the most holy Eucharist" (can. 1033).
III. "It belongs to the Ordinary of the place to give peculiar norms for an investigation of this kind by the pastor" (can. 1020, § 3).
Therefore he can prescribe the manner to be followed in inquiring concerning impediments or in examining spouses, and diocesan statutes issued concerning this matter retain their force.
- The testimony of Baptism is required to be recent, which also greatly serves for detecting impediments, since in more recent time in the book of the baptized there are also noted matrimony, if they have entered any, or subdiaconate received, or solemn profession (can. 470, § 2).
838. The law concerning publications of banns. - Banna, which word in German signified an edict of jurisdiction and consequently a public proclamation, are understood here as the public announcements of future matrimony between persons, which must be premised to its celebration so that impediments perhaps standing in the way may be detected more securely and more easily.
The law was introduced by custom, which the Fourth Lateran Council, c. 51, extended to the universal Church, prescribing one proclamation; but the Council of Trent, sess. 24, c. 1 de ref., n. 7, established that three proclamations be made, which the code of law confirmed, can. 1024. It obliges under grave matter, because it greatly conduces to an end of great moment: namely, of avoiding clandestine marriages, detecting occult impediments, and preventing children from contracting marriages against the will of parents. Whence to omit three proclamations without urgent necessity is a grave sin, indeed even to omit two, unless perhaps the danger of a latent impediment is absent; to omit one is light by reason of smallness of matter.
The law obliges all Catholics, even if the matrimony to be contracted is publicly known and it is established that no impediment is present, because the law is passed for forestalling a common danger (can. 21). There are excepted marriages of princes, which are not usually published, and cases of urgent necessity, as if in danger of death matrimony had to be contracted for legitimating offspring. Mixed marriages, however, to be celebrated with dispensation from the impediment of disparity of worship or of mixed religion, by law are not to be published, unless the Ordinary according to his prudence, scandal having been removed, has judged it opportune to permit this, or unless by particular law this is tolerated somewhere; in which case mention of the religion of the non-Catholic party should be omitted (can. 1026).
839. Circumstances of banns. - A. Time. "Publications are to be made on three continuous Sundays and other days of precept in the church during the solemnities of Masses, or during other divine offices to which the people come in numbers" (can. 1024).
Therefore publications must be made:
1° on three Sundays or feasts of precept, on which the obligation of assisting at Mass is imposed on the faithful;
2° continuous, namely, with no feast day omitted: it would be only venial, or, if a reasonable cause exists, no sin, to omit one intermediate feast day;
3° in church, which of itself is to be understood as parochial, during the solemnities of Masses or during other offices, provided that the people are usually present in numbers.
Hence: a) Announcements of themselves cannot be made on feast days suppressed in the place where they are made, even if they are celebrated with a great attendance of people; unless perhaps somewhere there is a centenary custom tolerated by the Ordinary, or unless in a particular case he dispenses.
b) Nor a fortiori on a non-festal day or outside church, on the occasion of some religious solemnity, unless in an urgent case, or from a dispensation of the Ordinary conceded for a particular case, provided the concourse of people is great, so that the end of the law is attained.
c) A pastor who in Mass forgot to make the announcement to be made, or proclaimed the names of the spouses in such a way that they were not understood by the hearers, can make the due proclamation at vespers or defer it to the following feast day.
B. Form. Publications of themselves must be made by living voice and in the vernacular speech; per accidens "the local Ordinary can, for his territory, substitute for the publications a public affixing, at the doors of the parochial church or another church, of the names of the contracting parties for a space of at least eight days, yet so that, in this space, two feast days of precept are included" (can. 1025).
The form is varied in various dioceses according to the diverse customs or statutes of places. For affixing, a place well conspicuous is to be chosen. 1
C. Place. Proclamations are to be made:
1° Of themselves, in the parish of the proper pastor (can. 1023, § 1), and indeed of both the groom and the bride. But the proper pastor is he in whose parish they have domicile or quasi-domicile; or, if there is question of wanderers or of those who have only diocesan domicile or quasi-domicile, actual residence.
Hence: a) If the future spouses belong to the same parish and in it alone have domicile or quasi-domicile, in it alone must the proclamations be made; - unless sometimes per accidens, if before this one of the two stayed in another place for six months, as will be said under 2°.
b) If they are of diverse parishes, then proclamations must be made in the church of each.
c) If one or each has several domiciles, or domicile with quasi-domicile, or several quasi-domiciles, in all these places also must the proclamations be made; as can easily happen for minors living outside the paternal home, for soldiers, students, servants, etc.
d) Proclamations are no longer to be made in the place of origin or of actual residence, if they are not the place of domicile or quasi-domicile; - unless per accidens if it is prescribed by particular statutes or by the Ordinary.
2° Per accidens, also outside the parish, if the party has stayed in another place for six months after having attained puberty: then the pastor should set forth the matter to the Ordinary, who according to his prudence either requires that publications be made there, or prescribes that other proofs or conjectures concerning liberty of state be gathered (can. 1023, § 2).
Notice: a) If there is some suspicion concerning a contracted impediment, the pastor should consult the Ordinary even for a shorter residence, who should not permit the matrimony unless first the suspicion is removed according to the norm of § 2 (can. 1023, § 3).
b) In these cases, the number of proclamations is to be determined by the Ordinary.
c) If the party has stayed in very far and distant regions, from which, so that regular attestation of liberty of state may be had, a longer time is required, and yet the celebration of matrimony is urgent, the Ordinary according to his prudent judgment can prescribe a supplementary oath (whether by the party or by witnesses), as we know from the response of the com. int., June 2, 1918, and from the instruction of the Congregation of the Sacraments, June 4, 1921.
Moreover, in this matter the ordinances of the particular Statutes are also to be considered. 1
Let it be noted that the pastor can make the proclamations by himself or through another.
- Thus in the Council of Mechlin, n. 206, for Belgium it is established concerning the case in which someone has stayed outside the parish for six months: "It belongs to the pastor, in individual cases, diligently to investigate whether anything stands in the way of the celebration of matrimony. But if, after inquiry has been made, it is established to him, by public ecclesiastical or civil documents, by private testimonies or documents worthy of faith, together with the sworn affirmation of the contracting parties themselves, that nothing stands in the way of the matrimony and especially that the future spouses are free, the pastor is not bound to set forth the matter to the Ordinary, nor are publications to be made in another parish.
"But if, after diligent investigation, there is doubt or suspicion concerning the existence of an impediment, let him consult the Ordinary and follow his precepts."
- The provincial Council of Mechlin established for all Belgium, decr. 208: "For publications there can be partly substituted a public affixing at the doors of the parochial church of the names of the contracting parties, according namely to this norm:
"1° The names of each of the contracting parties must be proclaimed from the pulpit at least once, on a Sunday or feast of precept.
"2° In place of two publications, there can be made an affixing at the doors of the parochial church for a space of at least eight days, yet so that in this space two Sundays or feasts of precept are included, even if the prescribed publication is made on one of these Sundays or feasts.
"But the affixing is to be made in a place altogether conspicuous."
840. Obligation of revealing impediments. - Regularly "all the faithful are bound to reveal impediments, if they know any, to the pastor or local Ordinary before the celebration of matrimony" (can. 1027); but impediments are to be understood in the broad sense, or all things which stand in the way of celebrating matrimony.
The obligation is grave, because the end of the law is of great moment, namely, to prevent illicit and invalid marriages, by which irreverence would be done to the sacrament and damages would arise for the marrying parties and children, and also for the public good itself. Whence the obligation proceeds not only from positive but also from natural law.
All are obligated, of whatever sex, age, or place they may be, even if only one person knows some impediment and cannot juridically prove it, or the impediment is occult, provided that it is known with true probability. Yet there are causes excusing:
1° Uselessness of revelation, as if the pastor already knows the impediment, or dispensation from it has been made in the forum of conscience, or the revelation is foreseen certainly not to be going to profit.
2° Another efficacious means, such as the admonition of the spouses that they either desist from matrimony or solicit a dispensation. This admonition must always be premised where the impediment arises from an occult sin and is infamous, provided it is hoped that it will profit and time is not urgent; otherwise the impediment should be revealed to the pastor immediately.
3° Grave proportionate damage, whether one's own or that of others, for example scandal. But he who knows the impediment is then bound to impede the matrimony as much as he can.
4° The sacramental secret, and also an official secret by reason of the common good, unless revelation is necessary for protecting an innocent person against the unjust aggression of him who entrusted the secret; - but not a natural secret, nor one promised even under oath, nor even one simply entrusted, because a secret does not oblige to the detriment of the common good or to the damage of a third party.
One excused by a secret is bound, if he can, to warn the future spouses.
841. Dispensation of banns. - Not only the Supreme Pontiff, but also "the proper local Ordinary, according to his prudent judgment, can dispense from publications to be made, even in another diocese, from a legitimate cause. If there are several proper Ordinaries, that one has the right of dispensing in whose diocese the matrimony is celebrated; but if the matrimony is entered outside the proper dioceses, any proper Ordinary can dispense" (can. 1028).
Therefore he can dispense:
1° Only the proper Ordinary; therefore a dispensation conceded by a non-proper Ordinary is invalid, even if the matrimony is celebrated in his diocese.
2° From a legitimate cause; otherwise the dispensation is invalid, because the Ordinary dispenses in the law of a superior.
A proportionate cause is required, and therefore:
1° The lesser, the greater probability or moral certainty is present concerning the absence of any impediment whatever.
a) If it is morally established that there is no impediment, any reasonable cause, indeed the very petition of the spouses, can be a sufficient cause of dispensing even from all publications.
b) But if a positive doubt is present concerning some impediment, of itself and generally the Ordinary is in no way able to dispense from all publications.
c) Finally, if neither moral certainty concerning absence nor positive doubt concerning the existence of an impediment is had, the Ordinary can dispense for various causes.
2° The greater, the more or all the banns are remitted. But some causes are necessary, on account of which the Ordinary is bound to dispense; others are gracious, on account of which he can dispense.
Necessary causes, on account of which he is bound to dispense, are grave damage to be avoided or a notable good to be obtained; namely:
a) danger lest the matrimony be maliciously impeded, i.e., without just cause;
b) danger of infamy or scandal, as if concubinarii, who are held as legitimate spouses, wish to enter matrimony;
c) danger lest the groom abandon a girl deflowered by him;
d) danger of death, while offspring are to be legitimated or the salvation of the dying person more securely procured;
e) urgent necessity of departing with continual danger of incontinence;
f) birth imminent before the announcements have been made;
g) danger lest the spouses be content with civil matrimony alone.
Gracious causes, on account of which he can dispense rather than is bound to, are:
a) great disproportion in the respective age or condition of the spouses, which exposes them to mockery;
b) nobility of the future spouses, whose relations are more known, and whose nuptials do not take place without great deliberation and publicity;
c) every legitimate reason for anticipating matrimony, especially if it is morally established that there is no impediment.
These latter causes for the most part legitimate only a partial dispensation; but the prior ones, with urgent necessity, legitimate even a total dispensation.
Dispensation of the banns does not dispense from the announcement of impediments, nor from the obligation of inquiring concerning them; rather this seems to be more urged, unless it is established that no impediments are present.
The pastor cannot dispense, unless he receives delegation from the Ordinary for this; in certain regions, as in Belgium, vicars forane or deans are usually delegated for dispensing over one or two proclamations. In urgent necessity, the pastor can declare that the law of banns does not oblige with so great an inconvenience.
Thus:
1° if there is danger in delay and the Ordinary cannot be approached;
2° if a solemnly celebrated matrimony, afterward because of an impediment found, must be convalidated by renewed consent;
3° if because of public disturbance announcements cannot be made;
842. Office of the pastor. - When publications have begun or have been completed, either a doubt can have arisen concerning some impediment, - or a certain impediment has been detected, - or none has been detected, neither certain nor doubtful.
A. "When a doubt has arisen concerning the existence of some impediment:
1° The pastor should investigate the matter more accurately, questioning under oath at least two witnesses worthy of faith, provided there is not question of an impediment from whose knowledge infamy would arise for the parties, and, if it is necessary, the parties themselves also.
2° He should carry out or complete the publications, if the doubt arose before the publications were begun or completed.
3° Let him not assist at the matrimony, without the Ordinary being consulted, if he has prudently judged that the doubt still remains" (can. 1031, § 1).
B. "When a certain impediment has been detected:
1° If the impediment is occult, the pastor should carry out or finish the publications, and refer the matter, suppressing the names, to the local Ordinary or to the Sacred Penitentiary.
2° If it is public and is detected before the publications have begun, the pastor should proceed no further until the impediment is removed, even if he knows that dispensation for the forum of conscience only has been obtained; if it is detected after the first or second publication, the pastor should complete the publications and refer the matter to the Ordinary" (can. 1031, § 2).
C. "Finally, if no impediment has been detected, neither doubtful nor certain:
The pastor, the publications having been completed, shall admit the parties to the celebration of matrimony" (can. 1031, § 3).
843. Notices. - 1. "When the investigations and publications have been completed, let the pastor not assist at matrimony before he has received all necessary documents, and besides this, unless a reasonable cause demands otherwise, three days have passed from the last publication" (can. 1030, § 1). Whence if the last publication took place on Sunday, matrimony of itself can be contracted only on Thursday, conformably to can. 34, § 3, 3°.
The required documents are: a) the testimony of Baptism of the groom from another parish; b) authentic attestation concerning the banns proclaimed in another parish and concerning free state; c) in a special case, testimony concerning a dispensation obtained over an impediment, concerning the death of a prior spouse, concerning nullity of matrimony, concerning non-consummation of ratified matrimony and its dissolution, concerning those things which regard the Pauline privilege.
Per accidens there can be required: from civil law, testimony concerning civil formalities fulfilled; from particular law, testimony of confession.
- When the future spouses are of diverse dioceses, transmission of the documents of the completed inquiry to the pastor of the bride should always be made through the channel of the chancery of the episcopal Curia of the diocese of the groom; and vice versa through the episcopal chancery of the bride, if it should sometimes happen that the pastor of the groom is to assist at the matrimony (S. C. Sacr., June 29, 1941).
When the pastors of the future spouses are of diverse dioceses, the same Sacred Congregation further commands that the pastor not proceed to assisting at the matrimony unless he first obtains the license (nihil obstat) of his episcopal Curia.
That the matter may proceed more accurately, the pastor should send to the Curia, and indeed at a suitable time beforehand, all prematrimonial documents together with a copy furnished with all the notices concerning which there is evidence from the documents. This copy, fortified with the nihil obstat, the pastor should use if at some time he grants to a priest, otherwise furnished with legitimate faculty, license of assisting at matrimony perhaps to be contracted outside the parish, and afterward it should be carefully preserved in the archive of the parish where the nuptials were entered.
- "If matrimony has not been contracted within six months, the publications are to be repeated, unless it seems otherwise to the local Ordinary" (can. 1030).
The judgment of the Ordinary can be brought forth, whether by a general declaration for certain conditions verified, or by a particular response.
Wanderers are those who nowhere have domicile or quasi-domicile, even if they are already staying in the parish for a month: thus conformably to can. 91; yet probably excepted are those who are wanderers merely momentarily, as being those who, having recently left domicile, are on the way to occupying another: the end of the law, just as the text of the Council of Trent, sess. 24, c. 1, from which it is taken, regards those habitually wandering. But because the end of the law is greater certainty of free state, a license must be obtained, even if only one of the spouses is a wanderer; which generally will be more opportunely obtained after the examination of the spouses but before the publications.