Point II. On the Requisites for a Pastor or Local Ordinary to Assist Licitly at Marriage

In order that a pastor or local Ordinary assist licitly, it is required: 1° that the free status of the contracting parties be established, and indeed according to the norm of law; 2° that there be established the domicile or quasi-domicile, or monthly residence, or, if it is a question of a vagrant, the actual residence of either contracting party in the place of marriage.

If neither party has in the place of marriage, but each or either party about to contract has elsewhere, a domicile or quasi-domicile or monthly residence, the permission of the pastor or Ordinary of the domicile or quasi-domicile or monthly residence is needed. If neither has elsewhere a domicile or quasi-domicile or monthly residence, no one's permission is required; and this holds even if each or either has actual residence elsewhere.

In any case it is to be held as the rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses; but the marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor.

Finally, a pastor who assists at marriage without the permission required by law does not make the stole fees his own, and he is to remit them to the proper pastor of the contracting parties (canon 1097). It is said:

I. In order that a pastor or local Ordinary assist licitly, it is required: 1° that the free status of the contracting parties be established, and indeed according to the norm of law; concerning these things compare what was said in n. 682; it is required 2° that there be established the domicile or quasi-domicile, or monthly residence, or, if it is a question of a vagrant, the actual residence of either contracting party in the place of marriage. It is said:

1. Domicile or quasi-domicile. The notion, division, acquisition, and loss both of domicile and of quasi-domicile have been set forth in vol. I, n. 123. It is helpful here to add the following:

a) Someone can have two, indeed several, proper domiciles, namely by living equally in different places with the intention of acting thus perpetually. But whether someone lives equally in several places or not is to be judged more from the manner in which he has established himself here or there than from equality of time during which he stays in different parishes. It is certain that mathematically equal residence is not required.

b) Someone can have a proper domicile and a proper quasi-domicile, for example if, for a cause requiring at least six months, he goes elsewhere with the intention, once the business is finished, of returning to the place of perpetual habitation.

c) Someone can more probably have two proper quasi-domiciles; for example if a person goes to Rome in order to pursue studies there for four years, and meanwhile betakes himself to another place with the intention of remaining there for seven months and then returning to Rome. In the case he has a quasi-domicile in that other place, as is clear; likewise he retains the quasi-domicile at Rome, because it is not lost except by departure from the place with the intention of not returning.

d) A wife and a minor who has passed infancy can have legal domicile in one place and proper quasi-domicile in another.

e) A wife after the death of her husband and a minor who has become of age retain: the former, the domicile of the husband; the latter, the domicile of the one to whom he was subject. They retain, I say, that domicile, formerly legal, as voluntary, as long as they preserve the intention of remaining there.

2. Monthly residence; concerning which note:

a) The fact of monthly residence is required, but also suffices. The intention of extending residence through a month neither suffices nor is required; only the fact, and in no way the mind, is attended to, as is deduced both from the character of this legislation and from the words employed. Nor is habitation required, but residence suffices, whether in the manner of an inhabitant or in the manner of a guest, worker, etc. Besides this, residence must be taken according to common estimation. Now: 1° one who inhabits some place, for example in the paternal home, according to common estimation resides there, even if daily, either by day or by night, he spends time elsewhere, as if by day or by night he works in the factory of another municipality; 2° one who inhabits nowhere, but is accustomed to spend the day in one place and the night elsewhere, is rather said to reside where he is accustomed to spend the night. Finally, it is all the same whether someone resides in a place as a Catholic or as a non-Catholic.¹

b) The time of monthly residence is to be computed thus. Since a starting term is assigned, a month is taken as it is in the calendar, for example from February 1 up to February 28 or 29. And because the starting term does not coincide, or at least is not judged by law to coincide, with the beginning of the day, the first day is not computed, and the time is ended when the last day of the same number has been completed, for example from March 25 up to April 25 completed. But if the month lacks a day of the same number, the time is ended when the last day of the month has been completed, for example from January 30 up to February 28 or 29 completed (canon 34, § 3, 1°, 3°, 4°).

c) Residence must be continuous, at least morally. Now absence of one or another day and night does not seem to stand in the way of continuity. And this holds rather probably even if someone has gone away with the intention of not returning; for intention, as was said above, seems in no way to have to be attended to. Besides this, if absence of one or another day does not stand in the way of continuation, neither must it be compensated by other days added.

d) Finally, it is clear that residence must be continued up to the contracting of marriage. Otherwise there is not monthly residence, but there was monthly residence.

3. Actual residence. By this is understood, as is clear from canon 1097, § 1, 3°, residence for a time of some moment, so that someone can be said to have somewhere a seat of residence. Now residence of this kind by either of the contracting parties suffices if it is a question of a vagrant, that is, of one who nowhere has domicile or quasi-domicile. But if it is a question of a vagrant, it suffices whether both parties or only one party is vagrant. Note, however, that in this case there is required for assisting the permission of the Bishop or his delegate, of which canon 1032 speaks (n. 695).

4. The place of marriage with respect to the pastor is the parish committed to him; with respect to the Bishop, Vicar, and Prefect Apostolic, it is both any parish of the diocese, or respectively quasi-parish of the vicariate or prefecture, and the diocese, vicariate, or prefecture as such.

II. If neither party has in the place of marriage, but each or either party about to contract has elsewhere, a domicile or quasi-domicile or monthly residence, the permission of the pastor or Ordinary of the domicile or quasi-domicile or monthly residence is needed. If neither has elsewhere a domicile or quasi-domicile or monthly residence, no one's permission is required, and this holds even if each or either has actual residence elsewhere. I said:

1. No one's permission is required; except, however, that permission of which canon 1032 speaks (n. 695).

2. And this holds even if each or either has actual residence elsewhere. For in the case there is not required the permission of the pastor or Ordinary of domicile, quasi-domicile, or monthly residence, because these are not had; nor the permission of the pastor or Ordinary of actual residence, because it is prescribed nowhere. Therefore the pastor of the place in which the vagrant is licitly assists, always with due regard for the permission of which canon 1032 speaks (n. 695). Moreover note:

a) The required permission can be granted as much orally as in writing, as much expressly as tacitly. Permission reasonably presumed also suffices, if it cannot conveniently be sought; in which case, however, it is fitting after the fact to warn the proper pastor. Finally, in a case of grave necessity no permission is required, for example if without grave inconvenience permission cannot be obtained in time. The reason is that the permission of which we speak is not delegation, which is necessary for validity.

b) Nothing prevents pastors of some city from conferring on one another, for the sake of convenience, a general permission of assisting.

III. In any case it is to be held as the rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses; but the marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor. Now the law of celebrating marriage before the pastor of the bride does not oblige under grave sin; indeed there are those who, unless particular law presses the matter more urgently, recognize no obligation strictly so called. But any just cause excuses; and if it is present, there is no obligation of seeking permission from the pastor of the bride, although it is fitting to warn him.

IV. Finally, a pastor who assists at marriage without the permission required by law does not make the stole fees his own, and he is to remit them to the proper pastor of the contracting parties.

Stole fees are understood as those things which are owed to the pastor as such from the celebration of marriage in that parish; to these do not belong the Mass stipend, gifts given by the contracting parties from friendship, etc.

This penalty of latae sententiae, which is incurred even before a declaratory sentence, regards only pastors, not delegated priests; nor is this penalty incurred by a pastor who took part in the marriage of vagrants without recourse to the Bishop; nor by a pastor who took part in marriage while the pastor of the bride was passed over without just cause.

If several proper pastors are had, the pastor of the bride seems to be preferred to the pastor of the bridegroom. If the bride has several pastors, the stole rights are to be divided among the different pastors (cf. canon 1236, § 2).

Finally, one who without just cause remitted the stole fees in part or whole is not bound to restitution. He is not bound by force of ecclesiastical law, which is not understood of fruits not received. Nor is he bound by force of natural law, since he did not impede another either from a good to which he already had a right, or by an unjust means from a good to which he did not yet have a right. Yet he must restore who "has defrauded to such a point that the stole fees which would be given by the contracting parties he has arranged to be presented to himself under another title, for example, of a Mass stipend, because thus he is deservedly judged virtually to have received the stole fees; and therefore he is bound to remit them to the proper pastor of the contracting parties."²

POINT III.

¹ Cf. response of the Sacred Congregation of the Sacraments, January 28, 1906, by which assistance given by a certain pastor is declared illicit, not because one party before conversion had resided in his parish, but because the residence was interrupted.

² Van de Burct-Schaepman, n. 241.