Morals of the Church
Library › Wouters, Manual of Moral Theology › Volume II › Book III. On the Aids of the Christian Life, or on the Sacraments › Treatise VIII. On Matrimony › Dissertation II. On Matrimony Itself › Part II. On Matrimony, Insofar as It Is a Sacrament, Particularly › Section II. On the Ministration of the Sacrament of Matrimony and the Form of its Celebration › Chapter I. On the Juridic Form › Article I. On the Ordinary Juridic Form

Section — Wouters, Manual of Moral Theology

§ I. Summary Exposition

734.

The ordinary juridic form, required for the validity of marriage, is that it be contracted before the pastor or local Ordinary or a priest delegated by either of them, and at least two witnesses (canon 1094). But the presence of those assisting must be simultaneous, physical, and moral. It is said:

I. That it be contracted before the pastor or local Ordinary or a priest delegated by either of them. Now:

  1. Under the name of pastor here come:

a) The priest to whom a parish has been conferred as a title, with the care of souls to be exercised under the authority of the local Ordinary (canon 451, § 1).

b) The actual parochial vicar, who supplies the place of the moral person to whom habitual care belongs (cf. canon 471).

c) Quasi-pastors, who govern quasi-parishes.1

d) Chaplains of soldiers, whether major or minor, insofar as they are equated with pastors; this is gathered from the particular prescriptions of the Holy See (canon 451, § 3).

e) Chaplains or rectors of pious places of any kind exempt from parochial care, provided that full parochial power has been committed to them, are counted as pastors, but only for the persons entrusted to them and in the place over which they preside.2 The power belongs exclusively to the rector if the place is entirely exempt; otherwise it is cumulative with the pastor of the place (cf. canon 464, § 2).

f) Parochial vicars who are furnished with full parochial power, namely:

alpha) A substituted vicar holding the place in all things of a pastor absent for more than a week, approved by the Ordinary (canon 465, §§ 4 and 5; canon 474). The substitute, if he is the vicar of a religious pastor, must also be approved by the religious Superior, but this is not required for the validity of assistance.3

beta) A supplying priest who takes the place in all things of a pastor departing for a sudden and grave cause for more than a week (canon 465, § 5; canon 474),4 but not a supplying priest of a pastor departing for a shorter time.

gamma) A supplying priest designated by the Ordinary and exercising in all things the place of a pastor who, by sentence, is to be deprived of the benefice, but who has recourse to the Holy See (canon 474; canon 1923, § 2).

delta) A vicar administrator, namely one constituted when a parish is vacant, formerly called deservitor (canon 472, 1°).

epsilon) A vicar cooperator, the first or the older in office, or the nearer pastor; likewise the superior of the house who, before the appointment of an administrator, meanwhile assumes the governance of the parish, unless provision has been made otherwise (canon 472, § 2).

eta) An assistant vicar constituted by the local Ordinary who supplies in all things the place of a pastor unequal to duly carrying out his duties (canon 475).

Note 1. A vicar cooperator, of whom canon 476 speaks, of himself does not come under the name of pastor, although he enjoys general delegation. For, as is clear from the terms themselves, he is without the power proper to a pastor, that is, ordinary power, and has only delegated power.

Note 2. In mission regions where there are not quasi-parishes, all missionaries are cooperators of the Vicar or Prefect, and therefore with his delegation, whether general or particular, they can validly and licitly assist at marriage.5

Note 3. In mission regions where several missionaries divide some part of the territory among themselves into distinct stations, which they administer under one Superior of the central station, that superior is not held as quasi-pastor of the whole territory unless the care of souls of the whole district is truly and immediately committed to him.

  1. Under the name of local Ordinary in law come, unless someone is expressly excepted, besides the Roman Pontiff, each for his own territory: the residential Bishop, Abbot or Prelate nullius and their Vicar General, Administrator, Vicar and Prefect Apostolic, and likewise those who, when the aforesaid are lacking, succeed meanwhile in governance by prescription of law or by approved constitutions (canon 198).

  2. A priest delegated by either of them; concerning these, particular mention is made in n. 737 sq.

  3. And at least two witnesses. Now:

a) As regards validity, persons of any kind can be taken as witnesses, provided they actually enjoy the use of reason and are capable of testifying. Nor does canon 1757, § 1 stand in the way, since it indeed excludes the impubescent, but speaks only of witnesses in judgment. Heretics, excommunicated persons, and infamous persons are not licitly employed. Particularly with regard to heretics, the Holy Office6 declared "that they are not to be employed; nevertheless they can be tolerated by the Ordinary for a grave cause, provided scandal is absent."

b) Neither for validity nor of itself for liceity is it required that the witnesses designated have been warned beforehand or asked about the marriage to be contracted. Practically, however, they should be determined and asked before the marriage, because after the nuptials have been entered their names must be recorded by the pastor. The fact that the witnesses are forced does not impair validity.

c) It does not seem to be required that witnesses be formally assumed, in other words, that the contracting parties employ them as such, or at least contract conscious of their presence; rather it suffices that the witnesses can testify to the marriage contracted. For this opinion is favored both by the text of the law, which requires only that the marriage be contracted before witnesses, and by its end, which is that witnesses can testify to the contract of marriage. This end is indeed obtained even through witnesses who have not been formally employed. There is added the response of the Sacred Congregation of Propaganda Fide.7

II. The presence of those assisting must be simultaneous, physical, and moral. It is said:

  1. Simultaneous. For it is required that all be able to testify to one and the same act of marrying. Moreover, that a presence of this kind is required is sufficiently signified by the words: "Before the pastor... and at least two witnesses."

  2. Physical or bodily. For it is established that the marriage must be contracted "before the pastor and at least two witnesses." But physical presence is not constituted by communication set up by means of telephone or telescope.

  3. Moral, or such that at least from the circumstances they perceive that marriage is being contracted between these persons. This can be done even if someone lacks hearing or sight, but not if he is deprived of both sight and hearing.

1 Parts of an apostolic vicariate and apostolic prefecture, if a particular rector has been assigned to them, are called quasi-parishes (canon 216, § 3). But the erection of a quasi-parish is made by decree of the Ordinary, in which the limits of the territory are clearly described; and once it has been constituted, the rights and obligations of the quasi-pastor immediately arise.

2 Sacred Congregation of the Council, February 1, 1908, ad X.

3 Cf. Pontifical Commission, July 14, 1922, V, ad 1-3 (A.A.S. 1922, p. 527).

4 Cf. Pontifical Commission, July 14, 1922, V, ad 4 (A.A.S. 1922, p. 527).

5 Sacred Congregation of Propaganda Fide, July 25, 1920.

6 August 19, 1891.

7 July 2, 1827, ad II (Collectanea, n. 794).

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