Article II: Banns and Various Things Which Must Be Premised to Matrimony

— One must proceed from this principle: "Before matrimony is celebrated, it must be established that nothing stands in the way of its valid and licit celebration" (c. 1019, §1).

Exception. In danger of death, however, when other proofs are lacking, "unless contrary indications are present, the sworn affirmation of the contracting parties suffices, that they have been baptized and are detained by no impediment" (c. 1019, §2).

— Obligations of the pastor. The pastor, therefore, and not the betrothed, insofar as the obligation is merely canonical, since the betrothed in certain adjuncts can marry without the pastor; and indeed the pastor who has the right of assisting at the marriage, therefore, for the most part, the pastor of the bride, must, at an opportune time:

1. diligently, in a general manner, investigate whether anything stands in the way of the marriage to be contracted (c. 1020, §1).

The investigation concerning free status and concerning free consent is to be made even by a pastor to whom these things are morally established (Vlaming, Pract. iur. matr., I, 139).

Relying, however, on c. 1020, §3, which declares that it pertains to the Ordinary to prescribe prudent norms for the investigation by pastors, the Ordinary seems able to recall that investigation to his Curia, at least if, because of the adjuncts, that seems prudently to be counseled. We are confirmed by the response of the Sacred Congregation of the Council, February 1, 1908, by which, after the decree Ne temere, the law or custom was declared to be preserved by which the acts by which the free status of the contracting parties is established had to be performed by the episcopal Curia, and then permission was given to pastors of assisting at marriages (cf. Ojetti, In ius antepianum et pianum ex decr. Ne temere, n. 93, or our De forma Sponsalium et matrimonii, ed. 5, n. 55). This is done with admirable order in the Neapolitan Curia.

2. to interrogate the betrothed, even separately and cautiously, concerning impediments, concerning free consent, especially of the woman, concerning instruction in Christian doctrine, "unless because of the quality of the persons, this last interrogation appears useless" (c. 1020, §2).

It can appear useless either from the manifest instruction of the betrothed, or even from a mind hostile to religion. Yet let this latter not easily be presumed where there is the custom of an examination in catechism. For those who admit religious nuptials are accustomed then also to assent to the customary conditions; and one must beware lest, by excessive timidity, usages perish which certainly are to be approved. "Let him carefully teach ignorant betrothed persons," answered the Commission of the Code, June 2-3, 1918, "at least the first elements of Christian doctrine: but if they refuse, there is no place for rejecting them from marriage, according to the norm of c. 1066" (Periodica, IX, 150). According to the norm of c. 1066, that is, after the Ordinary has been consulted, who will settle the matter;

3. to observe the prescriptions by the Ordinary. For he can command several things here (c. 1020, §3), even when the investigation remains committed to the pastor;

4. to request testimony of baptism, even from a Protestant (c. 1021, §1);

5. since c. 1021, §2 warns that Catholics not yet confirmed should receive the sacrament of Confirmation before they are admitted to matrimony, if they can do so without grave inconvenience, the pastor will care for this also according to his powers;

6. to teach the betrothed their duties (c. 1033). How much it will help that here he have prepared a little book of pleasing form and easy reading, where the things which are permitted and not permitted in matrimony are proposed distinctly and at the same time prudently, with the duties concerning the instruction of children and also hygienic counsels concerning contagions and children added!

7. to warn minors by birth, insofar as there is need, lest they enter nuptials without the knowledge or with the reasonable unwillingness of parents; "but if they refuse, let him not assist at their marriage, unless the local Ordinary has first been consulted" (c. 1034);

8. to exhort those about to marry vehemently "that before the celebration of matrimony they diligently confess their sins and piously receive the Most Holy Eucharist" (c. 1033).

From the common law itself, the pastor can deny his assistance to a spouse who has refused to confess, if he is a public sinner (for example because of notorious omission of the Easter precept), or if he refuses confession in contempt of the Church, or if the omission will have been scandalous (cf. S. C. C. in Moguntina, August 28, 1852).

Confession prescribed by particular law cannot be converted into an impediment. Wherefore occult sinners who have refused to confess their sins are not to be excluded from matrimony.

A difficulty foreseen in a particular case is to be exposed to the Ordinary in good time. When a difficulty urges, assistance at matrimony cannot be refused, if he has been an occult sinner. Vlaming, I, p. 182; Linneborn, p. 83;

9. to make proclamations of the banns.

— On banns. 1. Banns, from a word which in the Middle Ages designated both jurisdiction and the territory of jurisdiction, and an edict and its proclamation, are public denunciations of a future marriage between definite persons, made authoritatively, with a tacit command made to the faithful of revealing impediments if any seem to stand in the way of the marriage.

2. These publications are to be made by the pastor whom domicile or quasi-domicile, or, if it is a question of a transient or of someone who has only diocesan domicile or quasi-domicile, at least present stay has made proper (cc. 94 and 1023). If there are several proper pastors, they are to be made by all.

Besides, if, after puberty, a party has stayed in another place (it is not said in another parish) for six months, the matter is to be proposed to the Ordinary, who will see what it is expedient to do.

The words of canon 1023, §2, "in another place" are understood by Vlaming, op. cit. I, 171, note 2, as "in another parish," because in §1 the banns are said to be made by the proper pastor. But the very difficulty of executing this canon, on account of which many, and Vlaming himself, think that one can depart from literal observance and stand by particular law, persuades us of the broader sense of the word, which in other respects is its proper sense.

If a positive suspicion of an impediment has arisen, the Ordinary will have to be warned; he also, for a briefer time of stay, will command proclamations, or in another way will take care that the suspicion be removed: before the suspicion has been removed, the marriage is illicit.

If, because of the plurality of journeys and the distance of regions, it will have been too difficult to gather the customary proofs by proclamations, it will be permitted to the Ordinary to provide otherwise and to admit other proofs, not excluding a supplementary oath (Response, June 2-3, 1918, Periodica, IX, p. 150, 4).

3. A twofold mode of banns is admitted today. Either by oral publications, on three continuous Sundays and other feasts of precept, in church, during the solemnities of Masses or during other divine offices to which the people frequently come (c. 1024); or, if the Ordinary has preferred it, by public affixing at the doors of the parochial church or another church, of the names of the contracting parties, for the space of at least eight days, so that in this space two feast days of precept are included (c. 1025).

With the permission of the Ordinary, feast days even abrogated can be understood.

4. Banns are to be made for marriages between Catholics alone. Yet the Ordinary can permit that future mixed marriages be proclaimed (between a non-Catholic or infidel party and a Catholic party), scandal having been removed, after ecclesiastical dispensations have been obtained, and with the religion of the non-Catholic party kept silent (c. 1026).

5. Banns produce the effect of positively obliging the faithful, not excluding the betrothed, of revealing or reporting impediments before marriage, either to the pastor or to the Ordinary. Impediments are to be denounced even if occult and unable to be proved. After the marriage has been celebrated, only the natural obligation remains. From making the denunciation there excuse: a) a secret entrusted by reason of office, for the sake of seeking counsel; b) harm proportioned to the very gravity of the impediment and to the consequences of silence.

It can happen that, in silence, marriage between natural brother and sister or between father and his own daughter can be permitted, if the woman, conscious of this matter, cannot reveal it without the greatest disgrace of her own (cf. De Smet, De sponsalibus et matrimonio, n. 69).

Other pastors must immediately make the pastor who must assist at the marriage more certain concerning the outcome of the investigations or proclamations (c. 1029).

6. Not the pastor indeed, but the proper Ordinary of those about to marry, can dispense from banns. And if there are several proper Ordinaries, dispensation pertains to that proper Ordinary in whose diocese the marriage will be celebrated; but if the marriage is going to be outside the proper dioceses, any proper Ordinary can dispense (c. 1028).

That dispensation must be given if it is necessary for avoiding grave harm, for example, malicious hindering of the marriage, a delay that is scandalous, defamatory, or dangerous to the constancy of the party (cf. Ferreres, II, 946); it can be given, if there is no suspicion of an impediment, or if it is removed in another way, and the celebration of the marriage is urgent. And it is clear that a lesser cause suffices for partial dispensation than for complete. Princes generally are held as dispensed; magnates can more easily be dispensed.

— After the investigation and banns have been completed: 1. the marriage is not to be celebrated immediately, but of itself, from the last proclamation, three days must run. Yet a reasonable cause, which excuses from that delay, is permitted to the prudent judgment of the pastor himself;

2. but before he has received all documents, the pastor cannot assist at the marriage;

3. after six months from the publications made, unless marriage has intervened, the banns are to be repeated, unless something else seems good to the local Ordinary;

4. if no impediment has been detected, neither doubtful nor certain, the pastor, after the publications have been completed, is to admit the parties to the celebration of marriage (c. 1031, §1);

5. when a certain impediment has been detected, if the impediment is occult, the pastor is to carry out or complete the publications, and, withholding names, refer the matter to the Ordinary or to the Sacred Penitentiary. If it is public and is detected before the proclamations have begun, the pastor will proceed no further until the impediment is removed, even if he knows that dispensation for the forum of conscience alone has been obtained; if it is detected after some publication has been made, the pastor is to complete the publications and refer the matter to the Ordinary (c. 1030, §2).

— In special cases provision is made in this way: that the pastor, after applying his own diligences, should approach the Ordinary for advice and obey his commands. Thus it is prescribed that he do this:

1. if, the matter having been accurately investigated, he has prudently judged that a doubt concerning the existence of an impediment survives (c. 1031, §1);

2. except in a case of necessity, if one of those about to marry is a transient, that is, has nowhere domicile or quasi-domicile (c. 1032). We think that this must be done even if the wholly transient person has a monthly stay in the parish;

3. if it is a question of mixed marriage, "where he certainly knows" that the spouses have approached or will approach, whether by themselves or through a proxy, a non-Catholic minister, as one devoted to sacred things, for furnishing or renewing matrimonial consent. For they are always prohibited under grave obligation from doing this. For the sake of civil effects, a non-Catholic minister who functions only in the office of a civil official is not forbidden to be approached (c. 1063);

4. if one of those about to marry has notoriously either cast off the Catholic faith... or is ascribed to societies condemned by the Church (c. 1065);

5. "if a public sinner or one notoriously bound by censure refuses before marriage to approach sacramental confession or to be reconciled with the Church" (c. 1066);

6. if the marriage is to be contracted by proxy and time is available (c. 1091).

— I. What sponsals are. A promise of marriage can be unilateral, obliging from fidelity or justice, and bilateral. Sponsals are a voluntary, deliberate, mutual promise of future marriage between persons able by law. For each forum the condition of validity is that it be made by writing signed by the parties and by the pastor or local Ordinary or by two witnesses. If either or both parties do not know how to write or cannot, this must be noted for validity; and another witness must sign the act. From sponsals there arises only an action concerning damages.

II. What matrimony is. 1. In becoming, it is the contract itself and, among the baptized, the sacrament by which man and woman legitimately hand over to each other their bodies, primarily for the end of procreating and educating offspring, secondarily for mutual help and a remedy of concupiscence.

The remote matter of the sacrament is the bodies of the contracting parties, but the proximate matter is the handing over which is expressed by consent. This consent, insofar as it expresses acceptance, is at the same time the form. The ministers are the contracting parties themselves. The res et sacramentum is the sacred bond of mutual obligation.

In fact being, it is the very bond induced by the contract. The properties of matrimony, thus properly so called, are unity and indissolubility, which by reason of the sacrament have greater firmness.

2. Of how many kinds matrimony is. It is ratified when, confirmed by the sacramental character, it has not yet been completed by consummation; ratified and consummated if among Christians it has been perfected by the conjugal act. Legitimate, properly today, is a valid marriage of non-baptized persons; sometimes it is said of every valid marriage; civil, which, whether true or fictitious, satisfies the conditions of civil law. Public marriage is contracted openly in the face of the Church; occult or of conscience is celebrated secretly before the pastor and two secret witnesses; clandestine is contracted even openly without pastor and witnesses canonically required.

In doubt, matrimony is presumed valid; in favor of the faith, one can stand for the nullity of matrimony in doubt.

III. Things to be premised to matrimony. Excepting danger of death, in which, unless there are contrary indications, the sworn affirmation of the contracting parties concerning their baptism and free state suffices, before marriage it must be juridically established that nothing stands in the way of the celebration. Therefore the pastor to whom assistance belongs must diligently investigate whether something stands in the way, interrogate the spouses, and dispose them. Banns are to be proclaimed by every proper pastor on three continuous Sundays or feasts, if the marriage is made between two Catholics. In place of public denunciations, the Ordinary can permit public affixing at the doors of the church of the names of the contracting parties for at least eight days, so that two feast days of precept are included. The Ordinary can dispense from banns; and in every difficulty and doubt, the pastor must approach him for advice.