Article III. On Those who Are Subject to the Juridic Forms

I. Subjects of the juridic forms. The following are subject to the juridic forms:

1. Those baptized in the Catholic Church, even if afterwards they have defected from her (canon 1099, § 1, 1°). Except those baptized in the Catholic Church but born of non-Catholics, who from infancy¹ grew up in heresy or schism or infidelity or without any religion (canon 1099, § 2). It is said:

a) Baptized in the Catholic Church. Now those are judged such who were baptized with the intention that they be ascribed to the Catholic Church. This is done if they are baptized in order to the Catholic Church, whether 1° from their own intention, or 2° from the intention, even merely interpretative, of both parents or of either parent or of another to whom the infant to be baptized is subject, even if perhaps the intention of the one baptizing is different; as if the infant of Catholic parents in a case of necessity were baptized by a heretical midwife. The same 3° seems to have to be said if the infant is baptized in order to the Catholic Church from the intention alone of one baptizing legitimately or licitly, even if those who have charge of the infant dissent; as if a Catholic maidservant baptized an infant of infidels placed in danger of death.

b) Born of non-Catholics. Now:

alpha) Under the name of non-Catholics here also come apostates.²

beta) It suffices that either parent be non-Catholic; and this holds even if the cautions according to the norm of canons 1061 and 1071 have been furnished. So from the declaration of the Pontifical Commission; and the same Pontifical Commission responded that this declaration is declarative, not extensive.³

2. Those baptized in a heretical or schismatic sect, but converted to the Catholic Church, even if afterwards they have defected from her (canon 1099, § 1, 1°). Those who were baptized in a heretical or schismatic sect but were educated in the Catholic faith from infancy by parents meanwhile converted, are bound by the law as soon as, having obtained the use of reason, they showed themselves Catholics. According to others, they are converted to the Catholic Church together with the parents.

Corollary. Those who are subject to the juridic forms are bound by them whether they contract with one another or contract with someone who of himself is immune from the aforesaid form. And this holds even if they enter nuptials with a non-Catholic after obtaining a dispensation from the impediment of mixed religion or disparity of cult (canon 1099).⁴ Therefore the principle which commonly obtained before the Pian law no longer holds: the immune party communicates his immunity to the other party. But this principle holds: the bound party communicates his bond to the other party.

¹ That is, already before the completion of the seventh year (canon 88, § 3).

² Pontifical Commission, February 17, 1930 (A.A.S. 1930, p. 195).

³ July 20, 1929 (A.A.S. 1929, p. 513); July 25, 1931 (A.A.S. 1931, p. 388).

⁴ Cf. Sacred Congregation of the Council, March 28, 1908, ad I.

II. Those immune from the juridic forms. Immune from the juridic forms of themselves are:

1. Non-baptized persons.

2. Those baptized in a heretical or schismatic sect, even of Oriental rite, and not converted to the Catholic Church.

3. Those baptized in the Catholic Church, but born of non-Catholics, and from infancy educated in heresy or schism or infidelity or without any religion.

4. Catholics of Oriental rite.¹

Corollary. Those who are immune from the juridic forms are not bound to the same forms only when they contract with someone who is likewise immune;² otherwise, if they contract with a person who is bound to the juridic forms, they are bound (canon 1099).

Here some ask whether a marriage is valid which, after a dispensation in disparity of cult has been obtained, is contracted with the form of civil law neglected, that law by that very fact invalidating a marriage entered without the form.

Most deny it, because the non-baptized party, as being subject to civil law, cannot contract validly without the form having been used. But in order that marriage be valid, it is required that each party be able validly to enter it. Yet the contrary opinion, although in no way certain, is not without probability. For since the marriage of a faithful person is entirely subject to the Church and can be fully governed by her, it is not improbably said that the impediment of civil law, insofar as it regards a marriage to be contracted by an infidel with a faithful person, does not have force, or at least can be removed by the Church. In a word: the power of the Church over the faithful person redounds to the infidel, insofar as the latter is about to contract with the faithful person.³

Note. The exemption from the law formerly in force for Germany and Hungary by force of the constitution Provida was abrogated from May 19, 1918, as a particular law contrary to canon 1099. So, with canon 6 considered.⁴ There are added the responses of the President of the Pontifical Commission⁵ and a similar one of the Pontifical Commission itself.⁶

¹ Canon 1; Sacred Congregation of the Council, February 1, 1908, ad I. The Ruthenians are excepted who belong to the dioceses of the Galician province, namely Lviv, Przemysl, and Stanislaviv; to them the Sacred Congregation of Propaganda Fide extended the decree Ne temere on May 5, 1911. Likewise, by decree of the Sacred Congregation of Propaganda Fide, August 18, 1913, Canadian Ruthenians are excepted, namely from the indicated day for ten years. Besides this, note that not all Catholics who live in the East are Catholics of Oriental rite.

² If, however, they contract with a person of this kind, they are always immune from the juridic forms. The law indeed declares that the following are not bound to the form of marriage: 1° non-Catholics, if they contract with one another; 2° those born of non-Catholics, even if baptized in the Catholic Church, who from infancy grew up in heresy or schism or infidelity or without any religion, whenever they contract with a non-Catholic party. But these things are not to be taken so literally that a marriage entered by the aforesaid, for example with a Catholic of Oriental rite, without the Catholic form, would be held invalid.

³ This opinion is defended by Resemans, De competentia civili in vinculo coniugali infidelium, p. 2; Gasparri, n. 306.

⁴ March 30, 1918.

⁵ In Vlaming, op. cit., n. 226, note.

⁶ The source gives only the abbreviated reference here.