The Power of the Pastor and of the Priest Assisting at Marriage according to the Norm of Canon 1098, N. 2

610. 1. In urgent danger of death, the parish priest, the priest assisting at the matrimony, and also the confessor, who ordinarily will be the assisting priest, have the same faculty of dispensing and under the same conditions as the ordinary himself.¹

a. In this case, if there is time for recourse to the ordinary, recourse is necessary.

b. The confessor possesses the same faculties for the internal forum, but only in sacramental confession. Nevertheless, if he is at the same time the assisting priest, he possesses the faculty also for the external forum.

c. The parish priest and assisting priest must inform the ordinary of the place concerning the dispensation granted for the external forum and take care that the same be inscribed in the marriage book.²

2. In urgent necessity, namely, where all things have already been prepared for the nuptials and the matrimony, or (if the matter concerns a contracted matrimony) the convalidation, cannot be deferred without probable danger of grave evil until dispensation is obtained from the Holy See, the parish priest, the assisting priest, or the confessor possess the same faculty.³

Since this case formerly was not without difficulties and was solved in diverse ways by authors, it was circulated under the name of the perplexed case. But now, after the very ample faculty of dispensing has been granted, every difficulty vanishes and the case ceases to be perplexed. I shall set forth distinctly what the parish priest, etc., must do in this case.

¹ Cn. 1044.

² Cn. 1046.

³ Cn. 1045.

611. 1. If he discovers a public impediment, e.g., of consanguinity, the impediment must be revealed and the matrimony deferred until dispensation has been obtained; for this can be done without scandal and infamy of the betrothed.

2. If the impediment is occult and indispensable (e.g., of bond), the matrimony must be omitted, whatever inconvenience may follow from the omission, unless the circumstances are of such a kind that the impediment cannot be revealed to those about to marry without most grave inconvenience to a third party.

3. If the impediment is dispensable, this faculty of dispensing is now granted:¹

a. Dispensation can be granted in all impediments of ecclesiastical law, whether public or occult, even multiple, with only those arising from the order of priesthood and from affinity in the direct line (when the matrimony has been consummated) excepted; yet scandal being removed and cautions furnished, if dispensation is given in disparity of cult or in mixed religion.

b. He can dispense:

The ordinary of the place, his subjects wherever they are staying and all actually dwelling in his own territory;

The parish priest and the priest who assists at the matrimony, but only in occult cases and if the ordinary cannot be approached either at all or only with danger of violating secrecy.

The confessor, but only for the internal forum and in the act of sacramental confession.

c. The same faculty has force also for the convalidation of a matrimony already contracted, if the same danger exists in delay and there is no time for recourse to the Holy See.

d. The parish priest and priest should immediately make the ordinary of the place certain concerning the dispensation granted; this is not required from the confessor, who has dispensed only for the internal forum.

If the impediment in which the parish priest or assisting priest has dispensed afterward becomes public, nothing further is required, because the dispensation was granted also for the external forum; but if the impediment in which the confessor dispensed afterward becomes public, dispensation for the external forum must be sought, since it was given only for the internal forum.

¹ Cn. 1045.

I. When danger of death urges, both the pastor and the priest who assists at marriage according to the norm of canon 1098, n. 2, can dispense, the things that must be posited being posited, concerning the form and all impediments of which in canon 1043. They can dispense, I say: the pastor his own subjects dwelling anywhere and all actually staying in his own territory; the assisting priest those whose marriage he assists; nevertheless, by both, the things to be observed being observed (canon 1044). It is said:

1. They can dispense, and indeed both for contracting and for convalidating marriage.

2. The things that must be posited being posited; namely, it is required that not even the local Ordinary can be approached. If the Vicar General can be approached, this must be done, because he comes under the name of the local Ordinary. If another delegated by the Ordinary, who can dispense, is present or can be approached, they are not bound to have recourse to him, because he is not the Ordinary of the place.

3. Nevertheless, by both, the things to be observed being observed, i.e., they can dispense with scandal removed and cautions furnished, if the dispensation is granted concerning disparity of cult or mixed religion (p. 658).

Note. The pastor or assisting priest dispenses for both the external and internal forum.

If the impediment is public, the dispensation is to be granted publicly, i.e., at least before witnesses, unless it is granted concerning the form; and then the pastor or assisting priest is immediately to inform the local Ordinary about the dispensation granted, and it is to be noted in the marriage book (canon 1046).

If the impediment is occult, the pastor or assisting priest dispenses in the non-sacramental internal forum; and the dispensation granted is to be noted in the secret book of marriages, preserved in the episcopal curia, nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public (canon 1047).

II. As often as an impediment is detected when all things are already prepared for the nuptials, the pastor, and likewise the priest assisting at marriage according to the norm of canon 1098, n. 2, can dispense, the things that must be posited being posited, concerning all impediments of which in canon 1043, but only for occult cases. They can dispense, I say, the same persons of whom in canon 1044, nevertheless by both, the things to be observed being observed (canon 1045, § 3, compared with 1045, §§ 1 and 2).

1. They can dispense both for contracting and for convalidating marriage (canon 1045, § 3, compared with 1045, § 2).

2. The things that must be posited being posited; namely, it is required that the marriage cannot be deferred without probable danger of grave evil, and that the local Ordinary either cannot be approached, or cannot be approached without danger of violation of secrecy.

3. Concerning all impediments of which in canon 1043; likewise, sufficiently probably, concerning the form (p. 657).

4. But only for occult cases. By occult cases are understood cases in which the impediment, of whatever nature it may be, is at least occult in fact.²

5. Nevertheless, by both, the things to be observed being observed, i.e., they can dispense with scandal removed and cautions furnished, if the dispensation is granted concerning disparity of cult or mixed religion (p. 658).

Note. The pastor or assisting priest dispenses for both the external and internal forum. But since there is question of occult cases, the dispensation is to be granted in the non-sacramental internal forum; and the dispensation granted is to be noted in the secret book of marriages, preserved in the episcopal curia, nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public (canon 1047).

Question 1. Whether a priest delegated by the pastor to assist at marriage has the same faculty of dispensing as the pastor himself.

Response. Some affirm, because the delegate as it were puts on the person of the one delegating, and therefore in these circumstances the same power is presumed to have been granted to him. Others better deny it, because canons 1044 and 1045 are silent concerning him, indeed implicitly exclude him by determining to whom the faculty of dispensing is granted. In practice, when delegating someone to assist, the pastor should grant him the faculty of dispensing as a precaution.

Question 2. Whether the pastor can delegate his faculty to another.

Response. Some deny it, because the aforesaid faculty does not emanate from the office itself, and therefore is not formally annexed to it, but is delegated by law. But it seems that it must be affirmed, because, with canon 197, § 1 considered, for ordinary power it suffices that the faculty be annexed to the office by the law itself, whether it emanates from it or does not emanate from it. At least the Church supplies.

Question 3. Whether the priest assisting according to the norm of canon 1098, n. 2 can delegate his faculty to another.

Response. It must be denied, because as such he lacks an office, and therefore has only delegated power; and because he is delegated by law, he cannot subdelegate. Moreover, a faculty of delegating of this sort would not come into use for him, because another priest assisting in this way also receives the faculty from law; these things also hold concerning the confessor.

¹ There is discussion of the cases in which marriage can be contracted before witnesses alone (n. 738 sq.).

² Pontifical Commission, December 28, 1927, ad III (A.A.S. 1928, p. 61).

188. • I. In danger of death.

a) The parish priest has the same power as the Ordinary, but restricted to cases in which not even the local Ordinary can be approached. (Can. 1044.)

What we said above at n. 185, 2 and 3 concerning the nature and scope of the power of the local Ordinary here must be applied altogether to the parish priest.

b) The same faculty belongs to the priest who, the parish priest or his delegate being absent or impeded, assists at matrimony according to the norm of can. 1098. (Can. 1044.)

c) Does a priest legitimately delegated by the Ordinary or by the parish priest to assist at matrimony enjoy the same power?

R. The Code indeed is silent, but several judge that there is here place for the application of can. 200 § 1, since in the case the delegate cannot assist without the concession of dispensation. By conceding delegation, the parish priest or Ordinary is held implicitly to delegate his faculty of dispensing.¹

¹ Capello, cited work, n. 236.

189. • II. In other urgent cases.

a) The parish priest enjoys the same faculty as the Ordinary, in the circumstances explained above at n. 186, restricted nevertheless to occult cases and to those in which not even the local Ordinary can be approached, or only with danger of violation of secrecy. (Can. 1045, § 3.)

1. "Occult cases" must be understood of any impediment occult by fact, even if by its nature it is public. This has now become certain from the response of the Commission for authentically interpreting the Canons of the Code, on the 28th day of December 1927.²

² Acta Apostolicae Sedis, 1928, p. 61. III, Concerning matrimonial dispensations.

2. Secrecy is not here restricted to sacramental secrecy.

b) A similar faculty is granted to the priest assisting at matrimony according to the norm of can. 1098 2°, i.e., when outside danger of death the parish priest or Ordinary or delegated priest who would assist at matrimony cannot be had or approached without grave inconvenience, and it is prudently foreseen that this condition of affairs will last for a month. (Can. 1098.)

c) What we said above at n. 188, c, concerning a priest delegated to assist in danger of death, also has force here.

190. • III. The parish priest or priest assisting at matrimony should at once inform the local Ordinary concerning the dispensation granted for the external forum; and it should be noted in the book of matrimonies. (Can. 1046.)

922. The power of the pastor and confessor. - Pastors, confessors, or other priests of themselves have no power concerning matrimonial impediments; nevertheless it is sometimes granted to them by common law, on account of special necessity, and by special indult.

A. From common law: 1° When danger of death urges, and only for cases in which not even the Ordinary of the place can be approached, the same faculty of dispensing as he has is possessed both by the pastor, and by the priest who assists at the matrimony in extraordinary form, and by the confessor, but this latter for the internal forum in the act of sacramental confession only. Thus can. 1044.

It is said: a) the same faculty as the Ordinary, i.e., of dispensing both from the form of celebration and from all impediments of ecclesiastical law, public and occult, even multiple, - with only two excepted, namely from the order of the presbyterate and from affinity in the direct line, the matrimony having been consummated, - but only with scandal removed, and the usual cautions furnished;

b) is possessed by the pastor, - the priest assisting at matrimony in extraordinary form, when the pastor cannot be had and approached, - and the confessor, but only in the act of sacramental confession: the pastor indeed toward his own subjects wherever they are staying and all actually dwelling in his own territory; the priest assisting at matrimony toward those whose matrimony he assists; the confessor toward penitents. Whether a priest legitimately delegated by the Ordinary or pastor to assist at matrimony enjoys the same power can be doubted theoretically, because the Code is silent; nevertheless practically it can be affirmed, because according to can. 200, § 1, together with delegated power those things are understood to be granted without which it could not be exercised, whence by granting delegation the pastor or Ordinary is judged implicitly to delegate his faculty of dispensing;

c) but only for cases in which not even the Ordinary of the place can be approached, namely by ordinary means.

2° In urgent necessity, whenever an impediment is detected when everything has already been prepared for the nuptials, and matrimony (likewise its convalidation) cannot be deferred without probable danger of grave evil until a dispensation is obtained from the Holy See, the same persons enjoy the same faculty as the Ordinary, but only for occult cases in which not even the Ordinary of the place can be approached, or not except with danger of violation of secrecy. Thus can. 1045, § 3.

It is said: a) the same faculty as the Ordinary, i.e., of dispensing over all impediments of ecclesiastical law listed above and under the same cautions, but not over the form of celebration of matrimony;

b) the same persons enjoy it, namely, the pastor, the priest assisting at matrimony in extraordinary form, and the confessor, likewise a priest delegated by the pastor or Ordinary to assist: but the confessor, as it seems, only for the internal forum and only in the act of sacramental confession, as is clear from can. 1044 to which can. 1045, § 3 refers; although some extend the power of the confessor to the extra-sacramental forum, because in that canon the restriction is not explicitly placed;

c) only for occult cases, i.e., not only for impediments occult by their nature, but also for impediments public by their nature but occult in fact (com. int., Dec. 28, 1927);

d) in which not even the Ordinary of the place can be approached, or not except with danger of violation of secrecy, namely when the Ordinary cannot be approached by ordinary means, or not without danger of violating secrecy, even non-sacramental.

B. By special indult sometimes the faculty of dispensing over certain impediments is delegated to priests, whether by a particular indult by which the execution of a dispensation is committed to them, or also by a general indult for a definite time: thus especially to confessors for the internal forum only.