Those who Are Subject to the Juridic Forms

651. 1. The following are held:

a. Catholics about to marry, whenever they enter matrimony with each other. By Catholics are understood all baptized in the Catholic Church and those converted to it from heresy or schism, although either these or those afterward defected from it.

b. Catholics, if they contract with acatholics, whether baptized or not baptized, even after dispensation has been obtained from the impediment of mixed religion or disparity of cult.

c. Orientals who contract with Latins are held by this form.

2. The following are not held, or contract validly without any form:

a. Catholics of Eastern rites, whether they enter matrimony with each other or with any acatholic (Eastern or Latin).

b. Acatholics who enter matrimony with each other. By acatholics are understood a. those who never belonged to the Catholic Church either through baptism in the Catholic Church or through conversion to the Catholic Church; b. those who, born of acatholics, although baptized in the Catholic Church, from infancy grew up in heresy or schism or infidelity or without any religion.²

¹ Cn. 1099.

² Cn. 1099, 3.

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.

§ 3. Non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of betrothal or marriage."

51. "All those baptized in the Catholic Church, and converts, although they later defected." The law, therefore, is universal for every place, with consequently any other contrary law or custom, whether general or particular, abolished.

52. "All those baptized in the Catholic Church." The Decree is not extended to Catholics of the Eastern rite. Sacred Congregation of the Council, February 1, 1908. Therefore marriages of Catholics among themselves are valid, or their mixed marriages, if namely they contract with a schismatic or heretic, even when the form of the Decree is not observed. Nevertheless a marriage contracted by a Catholic of the Latin rite with a Catholic of the Eastern rite is not valid if the form established by the Decree Ne temere is not observed. Sacred Congregation of the Council, March 28, 1908. Cf. moreover the things which were said above concerning the Ruthenians, n. 30, paragraphs 2 and 3. Whether those also are bound by the aforesaid Decree who, born of non-Catholic parents, were baptized as Catholics and from earliest age grew up heretically, infideliter, or according to the rite of atheists, has not yet been defined, and recourse must be had in individual cases. Holy Office, March 31, 1911.

53. "Later defected": after baptism in the Catholic Church, or after conversion to it. Even in the German Empire, Catholics who have gone over to a heretical or schismatic sect, or converts to the Catholic faith who afterwards defected from it, even in youth or infancy, in order to contract validly with a Catholic person, must employ the form established in the Decree Ne temere, namely in such a way that they must contract before the pastor and at least two witnesses. Sacred Congregation of the Council, February 1, 1908. And the reason is that the Decree Provida, which alone is excepted, regards only marriages of heretics among themselves and with Catholics. Cf. n. 55.

54. "For the same Catholics, if with baptized non-Catholics," and accordingly all marriages of mixed religion, saving the exception indicated, are subject to this law. "Mixed religion." Those things remain unchanged which have been established for such nuptials, to be celebrated without the Catholic rite and outside the church. Cf. what was said above, n. 18, paragraph "By a Decree." "If with non-Catholics." Under the name of non-Catholics are also comprehended schismatics and heretics of the Eastern rites. Sacred Congregation of the Council, March 28, 1908.

55. "Unless for some particular place or region the Holy See has otherwise established." Only the Constitution Provida of Pius X, January 18, 1906, for the German Empire is comprehended. Nor are the other Indults and Declarations regarding the impediment of clandestinity by any means comprehended. Sacred Congregation of the Sacraments, February 1, 1908. But the aforesaid Constitution Provida was extended, as regards mixed marriages, to the Kingdom of Hungary. Sacred Congregation of the Sacraments, February 9, 1909.

56. After the extension of the Constitution Provida to the Kingdom of Hungary, between Germany and Hungary, as regards the validity of clandestine mixed marriages, a reciprocal relation is not had, such that two spouses both born in the Kingdom of Hungary do not validly contract, even clandestinely, in Germany, and, vice versa, two spouses both born in Germany do not validly enter a mixed clandestine marriage in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909. Nor likewise does one born in Germany with one born in the Kingdom of Hungary validly enter a mixed marriage either in Germany or in the Kingdom of Hungary. But, in any case, both spouses must have been born in Germany, or respectively in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909.

57. Heretics and schismatics, all of them, on the other hand, are not bound by the present Decree. They can validly contract betrothal and marriage in any place whatever.

58. "Let the present Decree be held as lawfully published and promulgated by its transmission to the local Ordinaries; and let the things disposed in it begin everywhere to have the force of law from the day of the solemn Pasch of the Resurrection of Our Lord Jesus Christ in the next year, 1908.

Meanwhile let all local Ordinaries take care that this Decree be published among the people as soon as possible, and explained in the individual parochial churches of their dioceses, so that it may be duly known by all.

These presents to have force by special mandate of our Most Holy Lord Pius, Pope X, anything whatsoever to the contrary, even things worthy of particular mention, notwithstanding."

59. "Everywhere to have the force of law." The Decree, therefore, has the force of a universal law in the whole Church. It is considered published and promulgated by its very transmission to the local Ordinaries. It abolishes any contrary law and custom whatsoever, even particular, anything whatsoever worthy of particular mention notwithstanding. Finally, its obligation begins from the day of the solemn Pasch of the Resurrection of the present year 1908, that is from April 19, from the beginning of that day, which is from midnight after the preceding day. Hence Ordinaries are warned to take care that this Decree be published among the people as soon as possible, and moreover be explained in the individual parochial churches of their dioceses; for this is altogether necessary so that the aforesaid Decree may be duly known and observed by all.

1018. 2° On the subject of the Tridentine law. Principle: The law of clandestinity was at once local and personal.

(A) Insofar as it was local, it directly affected the territory in which it had been promulgated, and indirectly all who were staying there, or were traveling through the territory, even if they had no domicile or quasi-domicile there.

(B) Insofar as it was personal, it directly bound subjects, so that they could not validly contract in an exempt territory (where the law was not in force), if they went to this territory in fraud of the law, that is, for the purpose of marrying, without the intention of acquiring there a domicile or quasi-domicile.

(C) But when those about to marry dwelt in diverse places, a marriage celebrated without the Tridentine form was valid in a place where Tametsi was not in force, if one of the betrothed had there his domicile or quasi-domicile; for the privilege of one was communicated to the other.

1027. 1° Extension of the law. (A) The decree Ne temere and the Code have now been promulgated for the whole world. But they do not reach, at least directly, Orientals, who, from immemorial custom and with can. 1 approving, are not subject to disciplinary laws unless they are included by express declaration.

1028. (B) But in the Latin Church, can. 1099 declares who are subject to this law, namely:

(a) All baptized in the Catholic Church, when they contract among themselves, even if afterwards they have fallen away from the faith; - that is, all who by Baptism itself are freely enrolled in the Catholic Church, if adults are in question; with parents consenting, if little children are in question; but not those who are baptized by a heretical or schismatic minister by the will of the parents, even if the parents were Catholic; nor, at least more probably, the children of non-Catholics who, with the parents unaware and unwilling, were baptized by a Catholic maidservant. But the doubtfully baptized, with respect to marriage, are presumed validly baptized.

(b) All also who have been converted from heresy or schism and already baptized; but not the children of converts, unless they themselves also embrace the Catholic faith. - This holds good even if afterwards they fall away from the faith, because it is not fitting that this defection profit them.

(c) All likewise the aforesaid Catholics or converts, when they contract with non-Catholics, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult¹. Likewise Catholics who contract with Orientals. - Thus the discipline is reformed by which an immune party communicated his immunity to the other, while on the contrary today the bound party communicates his bond to the other.

¹ By the Constitution Provida (January 18, 1906), Pius X had exempted any mixed marriages to be contracted in Germany from the decree Ne temere. But that exemption is to be considered abrogated according to the mind of can. 6, 1° (Pontifical Commission, December 9, 1917).

(d) But non-Catholics, whether baptized or not baptized, are by no means subject to the law of clandestinity when they contract among themselves; therefore under this head the marriages of non-Catholics will not be invalid, which, as regards form, are subject only to natural and civil law. But if a baptized non-Catholic party contracts with an infidel, the marriage will be null from the impediment of disparity of cult, which has by no means been removed (above, n. 924).

Those bound to observe the prescribed form are:

754. 1. "all baptized in the Catholic Church and those converted to her from heresy or schism, although either the former or the latter afterward defected from her, whenever they enter matrimony with one another";

2. "the same persons, if they contract matrimony with non-Catholics, whether baptized or non-baptized";

3. "Orientals, if they contract with Latins bound to this form." -

"Non-Catholics, whether baptized or non-baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of matrimony; likewise 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."⁷

Explanation. To 1. It is not so clear how the words "baptized in the Catholic Church" are to be understood. Saving a better opinion, all those who at the time of baptism were destined for Catholic worship by parents or guardians or others legitimately disposing of them are judged to have been baptized in the Catholic Church.⁸ Hence, for example, an infant of Catholic parents, baptized in necessity by a Jewish physician, is judged baptized in the Catholic Church. But if an infant of Protestant parents is baptized by the same physician, that infant is not judged baptized in the Catholic Church. If Catholic parents were to have an infant baptized by a Protestant minister and afterward educated in heresy, the infant is not judged baptized in the Catholic Church. But if parents who entered matrimony with a dispensation from the impediment of mixed religion or disparity of worship (but not Catholic parents) were to have an infant baptized in the Catholic Church but afterward educated in heresy, the infant is judged as a heretic.⁹

To 2. Mixed marriages, in which one party is Catholic but the other non-Catholic (whether baptized or non-baptized), must be celebrated in precisely the same essential form as purely Catholic marriages.

⁷ Code of Canon Law, can. 1099.

⁸ Van den Acker, Decr. "Ne temere"², p. 101 f., thinks almost the same; Cappello, De sacr. III, n. 411; Wernz-Vidal, Ius can. V, n. 551.

⁹ Cf. Holy Office, November 17, 1835, and April 6, 1859, and Pontifical Commission, July 20, 1929 (Acta Ap. Sed. XXI, 573); this declaration is not extensive but declarative (Pontifical Commission, July 25, 1931: Acta Ap. Sed. XXIII, 388).

756. To 3. Although the Code of Canon Law ordinarily does not bind Orientals, nevertheless it binds them here accidentally because of the Latin party. This follows from those things which we said above concerning the individuality of the matrimonial contract. For if there is an impediment on the part of one contracting party, the matrimony can no longer be validly contracted. But in these cases there is an impediment on the part of the Latin Catholic, who cannot contract unless the prescribed form is observed. Therefore such mixed marriages are invalid.¹⁰

Note. In former times there was much dispute concerning the validity of marriages celebrated by non-Catholics without the Tridentine form; today this controversy is ended, since the marriages of non-Catholics, if they contract among themselves, are valid, provided that no diriment impediment other than the defect of the required assistance of the parish priest stands in the way, for example, the impediment of bond, impotence, relationship, and so forth. Schismatics¹¹ are also held as non-Catholics, as are those born of non-Catholics (among whom are included those born of apostates and of those who are or were enrolled in an atheistic sect^11a), even if baptized in the Catholic Church, who grew up outside the Catholic religion from infancy.

From what has been said it follows that the following are certainly not bound by the prescribed form, provided that they contract among themselves:

a) all born and educated in heresy or schism;

b) all Catholics of an Oriental rite.¹²

¹⁰ "Whether a matrimony contracted by a Catholic of the Latin rite with a Catholic of an Oriental rite is valid when the form established by the Decree Ne temere has not been observed? - Negatively." Thus the Sacred Congregation of the Council, March 28, 1908, ad 1.

¹¹ Sacred Congregation of the Council, March 28, 1908.

^11a Pontifical Commission, February 17, 1930 (Acta Ap. Sed. XXII, 195), and July 30, 1934 (Acta Ap. Sed. XXVI, 494).

¹² "Whether Catholics of an Oriental rite are also bound by the Decree Ne temere? - Negatively." Thus the Sacred Congregation of the Council, February 1, 1908, ad 1. Sometimes, however, the Decree Ne temere was extended to the faithful of an Oriental rite. Thus, for example, by the Sacred Congregation for the Propagation of the Faith on May 5, 1911, this Decree was extended to the Ruthenian dioceses of the Province of Galicia.

227. • I. Principle.

Ecclesiastical law of itself obliges all the baptized, even non-Catholics, unless the Church herself excepts certain persons from her law.

In fact the Church grants exceptions in favor of certain persons with respect to the obligation of observing the external form in the celebration of matrimony.

228. • II. Statute of canon law.

"The following are bound to observe the form established above:

1° All those baptized in the Catholic Church and those converted to it from heresy or schism, although whether the former or the latter they afterwards defected from it, whenever they enter matrimony among themselves.

2° The same persons of whom above, if they contract matrimony with non-Catholics, whether baptized or non-baptized, even after a dispensation from the impediment of mixed religion or disparity of worship has been obtained.

3° Orientals, if they contract with Latins bound to this form." (Can. 1099, § 1.)

Therefore the following are bound:

a) Those baptized in the Catholic Church and belonging to the Latin rite.

1. Which persons are baptized in the Catholic Church, see above n. 119.

2. Those born of non-Catholics are excepted who were indeed baptized in the Catholic Church, but from infantile age, i.e., before the completion of the seventh year (can. 88, § 3), grew up in heresy or schism or unbelief or without any religion. (Can. 1099, § 2.)

3. But children born of Catholic parents are not dispensed, who, as above, were educated outside the Catholic religion.¹ But they are dispensed if either parent was non-Catholic.²

¹ Capello, cited work, nn. 700, 1° and 701, 3°; Vermeersch-Creusen, cited work, t. II, n. 407.

² Pont. Comm. ad Cod. can. auth. inter. II, De matr. acath., 20 Jul. 1929, A.A.S. 1929, p. 573.

4. If doubt exists concerning baptism or concerning its validity, a matrimony celebrated without the form of the Code is judged valid whenever the other party is one of those dispensed from the law.

b) Those converted to the Catholic Church, if they are of the Latin rite.

Which persons they are, cf. above n. 120.

c) All the aforesaid are bound to the form of the Code, whether they contract among themselves or with those who are immune from that form.

229. • III. Who are immune from the law.

a) Non-baptized persons.

b) Those baptized in a heterodox sect and never converted.

c) Those baptized in the Catholic Church, but at the same time born of non-Catholics and educated outside the Catholic Church from infantile age.

d) Eastern Catholics.

Nevertheless the following are excepted:

1. Ruthenians, who are bound to observe the form of the decree Ne Temere.

2. Maronites, among whom the Tridentine form is in force.

230. • IV. All exempt persons are bound to the juridical form if they contract with a non-exempt party.

850. Who are held to observing the juridic form. - Canon 1099 says:

"§ 1. To observing the form established above are held:

1° All baptized in the Catholic Church and converted to it from heresy or schism, although either the former or the latter afterward defected from it, as often as they enter matrimony among themselves;

2° The same, of whom above, if they contract matrimony with non-Catholics, whether baptized or not baptized, even after a dispensation has been obtained from the impediment of mixed religion or disparity of worship;

3° Orientals, if they contract with Latins bound by this form." 1

Therefore, to the law prescribing juridic form:

1° All of the Latin rite, baptized in the Catholic Church, are held, namely those who, with regard to the end of the one acting, i.e., of the one baptizing or commanding Baptism, are baptized in order to the Catholic Church, or formally with this end, that they be joined to the external communion of the Catholic Church; such are:

a) infants whom parents or those holding their place take care to have baptized that they may become members of the Catholic Church,

b) infants born of Catholic parents and privately baptized in a case of necessity,

c) adults who by their own will receive Baptism with the intention that they be joined to the Catholic Church.

2° Converts to the Catholic Church from heresy or schism are also held, namely those who of their own accord have professed the Catholic faith; and non-Catholics baptized who from infancy, i.e., at least from the first use of reason, in fact were educated in the Catholic faith: provided they are of the Latin rite.

1. Hence a woman who, by force of can. 98, § 4, declares that she wishes in entering matrimony to pass to the Oriental rite of the man, is held to the form of the celebration of matrimony (com. int., April 29, 1940).

3° All these are held, even if afterward they defected from the Catholic Church.

4° They are held as often as they contract either among themselves, or with all others who are immune from the law, whether Orientals or non-Catholics, even with dispensation from the impediment of mixed religion or disparity of worship. For the party immune from the law does not communicate his immunity to the other party, but the party bound communicates the bond to the other, who then is held per accidens.

5° All are held in the whole world.

"§ 2. But the prescription of § 1, n. 1, remaining firm, non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere held to observing the Catholic form of matrimony."

The second part of this paragraph, "likewise those born of non-Catholics, although baptized in the Catholic Church, who from infancy have grown up in heresy or schism, or infidelity, or without any religion, as often as they contract with a non-Catholic party," was abrogated by the motu proprio Decretum Ne temere of Aug. 1, 1948. From Jan. 1, 1949, therefore, all baptized in the Catholic Church are held to observing the canonical form of matrimony. Since, however, that law does not have retroactive force, the second part of can. 1099, § 2 retains its force for those who contracted matrimony before Jan. 1, 1949.

Therefore from observing the juridic form:

1° Immune are: a) the non-baptized; b) those baptized in a heretical or schismatic sect and never converted; c) Catholics of Oriental rite, unless by special law they are bound to this.

2° They are immune only while they contract among themselves, or with a non-Catholic party who likewise is immune from the law, and indeed wherever they are dwelling.

3° Those baptized in the Catholic Church are not immune, whether they were born of Catholics or of non-Catholics, although from infancy they were educated outside the Church.

851. Notice concerning marriages formerly celebrated. - The legislation of the Code does not have retroactive effect; hence concerning the validity of marriages celebrated before the Code, judgment must be made according to Tridentine law, or, from April 19, 1908, according to the provisional legislation of the decree Ne temere, Aug. 2, 1907.

Especially three things are to be attended to:

1° According to Tridentine law, the assisting pastor was the proper pastor, namely of domicile or quasi-domicile of either of the future spouses; now it is the pastor of the place.

2° Tridentine law, where it had been promulgated, was of itself obligatory for marriages of heretics among themselves; the new law excepts these.

3° In certain regions dispensation had been made from Tridentine law both for marriages of heretics and for mixed marriages; now the presence of the pastor is universally required in mixed marriages.