Article XV. Clandestinity

A clandestine marriage is one that is contracted without the solemnities which are prescribed by the Church, so that a civil marriage before the registrar, a marriage in private, and a marriage before a priest not duly authorized to assist at it, are all clandestine marriages. Such a marriage always was and is gravely sinful, because it is forbidden by the Church on account of the great evils which frequently are the consequence, and because marriage is a sacrament and it should be received with fitting solemnity in the Church. Moreover, the Council of ‘Trent by the decree Tametsi¹ made clandestine marriages invalid in all places where the decree has been published according to the directions therein laid down. These will be best set forth in the words of the Council itself. The Council says: “And that these so wholesome injunctions may not be unknown to any, it enjoins on all ordinaries that they as soon as possible make it their care that this decree be published and explained to the people in every parish church of their respective dioceses; and that this be done as often as may be during the first year, and afterwards as often as they shall judge it expedient. It ordains, moreover, that this decree shall begin to be in force in each parish at the expiration of thirty days, to be counted from the day of its first publication made in the said parish.”

This decree was duly published in the parishes of Catholic countries like Italy, France, and Spain, and consequently in a those countries it bound all baptized persons, Protestant as well as Catholic. In Protestant countries like England, Scotland, and Norway it was not published at all, and bound neither Catholics nor Protestants. In countries like Ireland and Holland it bound Catholics but not Protestants. In these latter countries mixed marriages were declared to be exempt from the decree. This varying discipline led to inextricable confusion, and more marriages were invalid on account of clandestinity than from any other cause. To remedy these evils the Sacred Congregation of the Council issued its decree Ne temere on August 2, 1907, and it began to have the force of law for Catholics in the Western Church on Easter Sunday, April 19, 1908. With a few changes the Code has adopted the provisions of the Ne temere decree, and so now the impediment of clandestinity may be described as follows: Only those marriages are valid which are contracted before the parish priest of the place or the local Ordinary or a priest delegated by either of them and at least two witnesses.

The parish priest and the Ordinary of the place validly assist at a marriage:

(a) Only from the day of taking canonical possession of their benefice or entering upon their office, unless by sentence they have been excommunicated, interdicted, or suspended from office, or declared to be such.

(b) Only within the limits of their territory; and within the limits of their territory they assist validly not only at the marriages of their subjects, but also of such as are not their subjects.

(c) Provided that not being compelled by violence or grave fear they demand and receive the consent of the contracting parties.

The parish priest and the local Ordinary who can validly assist at a marriage can also grant leave to another priest so that within the limits of their own territory he may validly assist at the marriage (Can. 1094, 1095).

This leave to assist at a marriage ought to be given expressly to a particular priest for a particular marriage, otherwise it is invalid; so that all general delegations are excluded, unless there is question of curates (vicarii cooperatores) for the parish which they serve.

The parish priest or the local Ordinary should not grant this leave unless everything has been done which the law requires for the proof of the freedom of the parties to marry (Can. 1096).

Moreover, the parish priest or the local Ordinary assist lawfully at a marriage:

(a) When they are satisfied according to law as to the freedom of the parties to marry.

(b) When, moreover, they are satisfied as to the domicile or quasi-domicile or of a month’s stay, or, if there is question of a homeless person, of the actual staying of one of the contracting parties in the place of marriage.

(c) If the conditions just mentioned be wanting, the priest must have the leave of the parish priest or of the local Ordinary of the domicile or quasi-domicile or month’s stay of one of the contracting parties, unless there is question of homeless persons who are moving about and staying nowhere, or there is a grave necessity which excuses from asking leave.

In all cases let it be the rule that marriage be celebrated before the parish priest of the bride unless there be some good reason to the contrary.

A parish priest who assists at a marriage without the required leave has no right to the stole fee, and he should send it to the proper parish priest of the contracting parties (Can. 1097).

If a parish priest or a local Ordinary or a priest delegated by one of them cannot be had or approached without serious inconvenience to assist at marriage:

(a) In danger of death marriage contracted before witnesses alone is valid and lawful; and also at other times provided that a prudent judgement be formed that the same state of things will last for a month.

(b) In both cases if there is another priest who can assist he ought to be called and assist at the marriage, but if this is not done the marriage before witnesses alone is valid (Can. 1098).

All who have been baptized in the Catholic Church are bound to observe this form of marriage, as well as all converts to it from heresy or schism; even though they afterwards fall away from it. All these are bound to observe the form laid down even when they contract marriage with non-Catholics, or with Catholics of the Oriental rites. But non-Catholics, whether baptized or not, are nowhere bound to observe it when they marry among themselves, nor are those born of non-Catholic parents but baptized in the Catholic Church, who from the age of infancy have grown up in heresy, schism, or infidelity, or without any religion at all, when they contract marriage with a non-Catholic (Can. 1099).

‘Canon 1103 prescribes that when marriage has been celebrated the parish priest or one who takes his place should enter the marriage in the Marriage book as soon as possible. He should also make the proper entry in the Baptism book if either or both of the parties were baptized in his parish, otherwise he must send notice of the marriage to the parish priest of Baptism in order that he may make the entry in the Baptism book.

When marriage has been contracted in case of necessity without the presence of the parish priest or his delegate, if another priest was present, he and the witnesses are jointly and severally bound with the contracting parties to see that the entries of the marriage are made in the proper books as soon as possible.

¹ Sess, xxiv, c. 1, de ref. Matr.