+Feast of All Saints+
Prayer Intention for November
That each day of this month all prayer associates recite a prayer of their choice for the Poor Souls
Marriage is a very complex subject requiring careful study and the clarification of many fine distinctions. Those critiquing this difficult canonical work would do well to let the author complete the explanation of the current situation before arriving prematurely at any conclusions. Those involved in serious research, especially, should know that one proceeds from the general to the particular. What is presented below will not answer all questions but should serve to help readers better understand points mentioned in the previous two blog posts. Because of the confusion created by our critics, we must make certain the following is understood.
- We speak here only of marriage between two certainly baptized Catholics.
- In cases of marriage, doubtful baptisms are presumed to be valid until proven otherwise.
- The Church teaches that the marriages of those not Catholic are valid, but not fruitful regarding grace and not recognized by the Church as valid Catholic marriages. This would include Traditionalist and Novus Ordo marriages since these sects are schismatic.
- The marriage of two Catholics acting in a time period when no Catholic priest is available appear to be invalid if held as a religious ceremony before a non-Catholic minister in a non-Catholic church.
- It cannot be admitted that an after-the-fact invocation of Can. 1098 as a kind of “supplied jurisdiction” or application of epikeia can be said to validate Novus Ordo or Traditionalist marriages given the implications of Can. 2319.
- The only situation anticipated in these discussions is that of a Traditionalist or Novus Ordo person who decides to become a pray-at-home Catholic, renounces his/her previous errors, makes a Profession of Faith, arrives at moral certainty that the marriage was not valid and now wishes to rectify matters.
Excommunication for marriage by a non-Catholic minister
In an article on Can. 1098 for “The Jurist,” pgs. 168-69, 1954, we read: “Nothing prevents an action that complies with the requirements of the law from being valid. They may also marry before a non-Catholic minister, not as a minister of religion but as an official empowered by civil law to witness marriages; he must not be allowed to use any religious ceremony, as is seen in Canon 1063” (The History and Application of Canon 1098, John De Reeper, MHF). Can. 1063 was officially interpreted by Pope Pius XII as will be seen below.
Traditionalists do not comply with the requirements of the law; they marry in a religious ceremony before their “priests” as ministers of religion. They marry before them believing they are priests when they are not, which alone invalidates the act, (Can. 104): “Error annuls an action, when the error concerns the substance of the action or amounts to a conditio sine qua non — that is to say, if the action would not have been done except for the error [in this case that the minister was a valid Catholic priest authorized to witness marriages]; otherwise the action is valid, unless the law states otherwise…” (Can. 104). “Error of law or a fact, if it is substantial, renders an act null and void. The same is true if the error, though not substantial by nature, is made so by a condition sine qua non. Any other error leaves the act valid unless the law provides otherwise” (Revs. Bouscaren-Ellis, Canon Law, a Text and Commentary, 1946).
If it had been possible for Traditionalists to understand that the men officiating at their marriage could not be official witnesses as the Church requires for validity; or (validly) or licitly celebrate a nuptial mass; or validly hear their confession before the wedding; if this had been explained to them and understood, would they really have gone through with it? The condition sine qua non here is a valid priest actually delegated for the ceremony by a valid bishop. Can. 1094 makes this a condition of validity for the marriage. Traditionalists believed themselves married before a certainly valid priest, but this was not the case; it was an error, amounting to fraud. Furthermore, the canonists Woywod-Smith, under the heading: Mixed Marriages Before Non-Catholic Minister…,” (Can. 2319 ° 2167) state that: “Many commentators restrict the penalty to Catholics who marry a non-Catholic, but some commentators (Cappello, others) assert that the penalty is incurred also by two Catholics who give or renew the marriage consent before a non-Catholic minister as minister of religion. Two Catholics who marry before a non-Catholic minister are guilty of the offence of Can. 2316…” [IF, in fulfilling Can. 1098, they avail themselves of a non-Catholic religious ceremony when they could merely have gone to a justice of the peace].
“The Third Plenary Council of Baltimore punished with ipso facto excommunication reserved to the local ordinary Catholics who contracted or attempted to contract marriage before the minister of any non-Catholic sect. The law of the Code has superseded the particular law of the Council of Baltimore insofar as the marriage of a Catholic with a non-Catholic before a non-Catholic minister is concerned. But the law of that Council remains, we believe, WITH REFERENCE TO THE MARRIAGE, OR RATHER ATTEMPTED MARRIAGE, of two Catholics before a non-Catholic minister, for the Code does not punish the offense of two Catholics with a latae sententiae censure [Can. 2316 is considered to be a ferendae sententiae censure]. Canon 2221 empowers the legislators to enforce both the divine and ecclesiastical laws with penalties or to increase the penalty decreed by law (Canon 2244,°2085).” Rev. Ignatius Szal writes in his Communication of Catholics with Schismatics (1948) that the Council of Baltimore excommunication additionally applies because it is a particular law considered as still in effect under Can. 6 no. 5 of the Code. Since this excommunication is mentioned under Can. 1063, it is considered to be retained in the Code.
Under Can. 1098, Woywod comments regarding the use of a non-Catholic minister: “The parties are justified in going to a justice of the peace or any other official of the government who is entitled to witness marriages so that their marriage may have the recognition of the civil law. They can also marry before a non-Catholic minister, not as a minister of religion but as an official entitled by civil law to witness marriages. They must not allow him to use any religious ceremony… If they can without great difficulty approach a civil official entitled to witness marriages, there is no reason to go to the non-Catholic minister.”
Woywod-Smith seem to be explaining above that because no latae sententiae sentence is prescribed for two Catholics marrying in a religious ceremony before a non-Catholic minister, this is only an attempted marriage; otherwise the two parties would only be subject to the one excommunication under Can. 1063. Under Can. 2316, both parties also are guilty of an act of communicatio in sacris and incur ipso facto the censure for suspicion of heresy. After six months, if the parties have become aware of their delict and its consequences but have not amended, they are considered formal heretics (Can. 2315). The two citations below mention both marriages actually contracted (mixed marriage, which according to a 1925 private decision of the Sacred Congregation of the Sacraments is valid but illicit) and attempted marriage (between two Catholics).
“To approach a non-Catholic minister as such for marriage is to communicate formally with him in sacred things. Such action is a manifest participation in the sacred things of non-Catholics, and a recognition of their cult. All those who formally co-operate in the non-Catholic marriage ceremony of a Catholic are likewise guilty of the sin of religious communication. Some co-operators can incur the excommunication which is incurred by Catholics contracting or attempting such a marriage. Those who command, and all others who so induce the consummation of a delict, or so concur in it in any way, that the delict would not have been perpetrated without the command or concurrence are bound by the censure.'” (Rev. John R. Bancroft, C.SS.R., J.C.B., S.T.L., Communication. in Religious Worship with Non-Catholics, 1946).
Pope Pius XII clarifies the application of Can. 2319 §1 as follows:
Qualifying Clause of Canon 2319 §1 no. 1 Expunged
Pope Pius XII, Motu proprio, 25 December 1953 AAS 46-88
“The good of the Church demands that we take all possible care that the stability of Canon Law be not endangered by the uncertain opinions and conjectures of private parties regarding the true sense of the canons and that interpretations which rest on subtleties and cavils against the clear will of the of the legislator do not result in undue indulgence toward violators of the law, a thing which disrupts the nerve of ecclesiastical discipline. But certain interpreters of the sacred canons, paying too little attention to these considerations, have extenuated the force of canon 2319 §1, no. 1 and, relying too much on the prescription of Canon 1063 §1 to which it makes reference, have taught that not every marriage contracted or attempted by Catholics before a non-Catholic minister is punished by excommunication reserved to the Ordinary.
Accordingly, lest the faithful, no longer fearing the penalty, might dare to commit such crime We, after consulting the most eminent and most reverend fathers of the Supreme Sacred Congregation of the Holy Office, of Our own motion and in the plenitude of Our Apostolic authority, decreed and ordained that the words “Contra praescriptum canonis 1063 §1” be expunged from Canon 2319 §1 no. 1. We order also that this Apostolic letter, given of Our own motion, be published in the Acta Apostolicae Sedis.”
This seems to indicate that both those contracting mixed marriage AND those attempting marriage do incur the excommunication. The separate treatment of those who have contracted marriage and attempted marriage indicates that here Pope Pius XII is considering two distinct situations. The question asked in the 1925 decision on mixed marriage was: “Is mixed marriage before a Protestant minister valid if conditions of Canon 1098 for marriage before witnesses only are verified?” Reply: if all the conditions which are required by Canon 1098 for the validity of marriages before witnesses only are verified, the circumstances that such marriages were blessed in a non-Catholic church is an argument not against validity but against licitness.” (Canon Law Digest, Vol. IV, Can. 1098). This does not indicate that these marriages, however, were celebrated in a Protestant or schismatic ceremony; only that they were celebrated before a Protestant minister without the proper dispensation required before marrying a non-Catholic at that time. Yet according to what Woywod-Smith state above, this same application of Can. 1098 would not apply to the marriage of two Catholics.
But Can. 1014 states marriage is always presumed to be valid
Yes it does, but presumption must yield to truth. The truth here seems to be that two baptized Catholics presenting before a non-Catholic minister and engaging in a religious ceremony only attempt marriage; there IS no presumption that it ever existed. Novus Ordo adherents and Traditionalists almost always solemnize marriage in a flashy religious ceremony. Yet they are not commissioned to be, nor could they ever be so commissioned, as official witnesses for the true Church under Can. 1094. They are non-Catholic sects claiming to be Catholic, just as the Anglicans long claimed to be. It would be ridiculous to think that two baptized Catholics could expect to be joined in a valid Catholic union outside their own Church that results in an excommunication excluding them from Church membership and reception of the sacraments.
Renewal of consent
This is covered under Canons 1136 and 1137. Canon 1136 states: “A marriage which is invalid through lack of consent is validated if the party who did not consent now gives his consent provided the consent of the other party continues. If the lack of consent was merely internal it suffices that the party who did not consent now gives consent by an internal act. If the lack of consent was manifested also outwardly, it is necessary to renew the consent outwardly, either in the form prescribed by law, when the absence of consent was public, or in some private and secret but external manner if the lack of consent was occult.” Woywod-Smith comment:” In the chapter dealing with matrimonial consent, (Canons 1081-93), the Code treats of the various forms of defective consent: consent vitiated by ignorance, by error, by fear and force and by a condition attached.” This is where Can. 104 enters in, regarding error but also indirectly a condition.
One who marries believing the minister consulted is a witness acting in the official capacity of the Church when this is not the case has made an error that nullifies the act performed; that of giving consent according to the laws of the Church. Were it not for the fact that these attempted marriages involved a participation in a non-Catholic ceremony, they might be said to be valid; but almost always an actual ceremony is involved. The condition sine qua non for the validity of a Catholic marriage is a true priest possessing the proper delegation by the Church to officiate at the marriage. Technically these marriages are invalid for lack of form: they are only attempted marriages. But one is not aware of this unless it is first realized that the Novus Ordo and Traditionalist sects are not able to validly witness marriages followed by a religious ceremony. And this is not to mention that in the external forum one incurs an excommunication and suspicion of heresy. As Woywod-Smith note under Can. 1098 °1120: “The Church does not dispense in cases of necessity from invalidating laws,” and resorting to a religious ceremony in a non-Catholic Church invalidates the attempted marriage.
Canon 1137 reads: “To validate a marriage which was nullified by a defect in the form it must be contracted again in the legitimate form.” Woywod-Smith comment: “If the parties were married outside the Church, if the priest who witnessed the marriage was not properly qualified, or if two qualified witnesses were not present, the marriage is null and void, and such a marriage can be validated in no other way then by the observance of the prescribed form of marriage. The rule here stated is now general application for all marriages in which at least one of the parties is subject to the law of the Code on the form of marriage. If one of the parties cannot be persuaded to validate the marriage before the authorized priest and witnesses, as happens quite frequently in mixed marriages contracted outside the Church, nothing remains but to get the sanatio in radice to validate the marriage.” And this is available first from the bishop, then the pope, which sadly are not available to us. This covers marriages before Novus Ordo and Traditionalist ministers who were not qualified witnesses and whose ceremonies are not Catholic.
Some canonists have opined that Can.1098 and the China exemptions automatically legitimate all these marriages or prove them able to be legitimated. This may have been true when we still had a true pope and bishops, in a sort of supplied jurisdiction manner, but it is not true today. Can. 1098 is an exception to the law and is to be interpreted strictly. Canon 19 states: “Laws which… establish an exception to the law must be interpreted in a strict sense.” Woywod-Smith comment: “These classes of laws are considered odious. It may seem strange that a law which contains an exception from the general law is called odious whereas in fact it may be very acceptable. However, it is a recognized principle of legislation to favor the universal or common law and to discourage exceptions. Archbishop Cicognani writes in his Canon Law that: “Things deviating from the common law are in no respect to be drawn into precedent. That which is granted gratuitously to one person ought not to be drawn into precedent by others; for whatever is granted to a person contrary to the common law is odious even though the exception be established by law.”
Of course today, Can. 1098 is the only law Catholics can observe, where, as a general rule, while the Church still existed, it was resorted to only occasionally. But it could never be used to “cover” those marriages which the Church holds to be only attempted, not actual. And as we will show below in the appendix, the China exemptions only apply to us today to a certain extent. For they too are exceptions to the law permitted under certain circumstances and cannot be stretched beyond the intended will of the legislator. Next, we will see where all the above leaves us in regard to marriage today.
We are not worried here about those who will remain in the Novus Ordo or Traditionalist sects and believe themselves to be married in the Catholic Church. They marry validly in their own sects but are not Catholic; they are not members of the Church, nor are they married in the Catholic Church. If both parties, baptized in the Catholic Church and married in a solemn ceremony by a Novus Ordo or a Traditionalist minister should leave one of these sects or another non-Catholic sect to pray at home, they would need to observe the following order, adapted from Pastoral Companion, Fr. Honoratus Bonzelet, O.F.M., 1939:
- If there are serious doubts concerning Baptism in a particular case, conditional baptism may be given. Otherwise, a renewal of baptismal vows.
- A profession of faith must be made.
- This must be followed by an examination of conscience and a Perfect Act of Contrition, then Spiritual Communion.
- The couple must publicly renew their consent under Can. 1098, before two (preferably Catholic) witnesses and keep a record of the ceremony. In a Can. 1098 ceremony, any civil official or judge, even a ship’s captain, could witness the marriage. But ideally a Catholic male friend can officiate and witness the recital of the vows. The marriage can then be registered with the state. It can be a marriage (or renewal of vows) just as lovely as any other marriage ceremony.
- A three-year period of penance and amendment should begin, to satisfiy canonical requirements regarding return from heresy and schism.
Should one party wish not to renew consent but promises not to molest the faith of the one staying at home and agree that the children are to be raised outside these sects, the consent of the Catholic party wishing to pray at home is sufficient. If this is not possible, then the one converting may proceed as though there was never a marriage to begin with, because this is what Canon Law teaches. All cases would need to be submitted to the Holy See for examination and rectification should a true pope ever be elected, but that is highly unlikely. Catholics must abide by the marriage laws of the Church, not cater to the feelings or perceived needs of those involved in non-Catholic sects, offering them assurances that all is well when this is far from the case. Pope Pius XII says we must obey the laws of the Church if we wish to be counted as members of the Mystical Body (Mystici Corporis).
There are concerns about the motives of certain individuals calling themselves pray-at-home Catholics, and they are justified. Fr. Bonzelet writes: “Converts should be received with great care, especially if they are strangers to the pastor. The pastor should above all try to ascertain their motives. If material considerations (intended marriage) are compelling motives, he should apprise them that such motives are not sufficient. He should not, however, for that reason refuse to instruct them, since grace often builds up on extrinsic and natural motives.” There is no longer anyone to “vet” those who seemingly wish to leave these non-Catholic sects. There are deep concerns about those claiming to be newly converted given the fact that some might simply pretend to convert, then leave and publicly denounce those praying at home to shame them; or simulate conversion solely to justify leaving a spouse. All of this must rest solely on the consciences of those reading what is written here – no one is demanding that anyone do anything. Each person must decide for themselves what is true for their own situation. This was made clear from the beginning. Free will is just that — we answer to God for all our choices. This is why it is suggested that anyone wishing to become a pray-at-home Catholic spend three years on probation so to speak, but all of this must be on the honor system. The Internet is no guarantee of anything. We can only tell readers what the Church teaches and after that, we are at the mercy of the good will and honesty of others.
Marriage decision of the Holy Office issued for China During Communist Rule
We do not (yet) live in a Communist country and are still free to follow many of the Church’s laws that did not and could not apply to the Chinese. The Church was especially concerned that the cautiones or promise that the children be baptized and educated as Catholics be at least given sincerely at the time of the marriage, even if they could not later be fulfilled.
Can the China law be applied to marriages taking place today, now that its existence is known? Only very cautiously and to the extent that is necessary. This is because the reply to the original decree explains that the positive law must be observed whenever it is able to be observed. The need for canonical form and even the witnesses is lifted in rare cases where Communist oppression was at its worst, according to one Spanish canonist, but we can easily use the correct form under Can. 1098 and find witnesses, even if they are non-Catholics. The lifting of the impediments is what mainly applies here, because there is no one to determine when or if they may be lifted and no appeal to Rome is now possible. Can the decree “retroactively” apply to past cases? Only if there is a question of impediments and whether or not they applied at the time of the marriage. This seems to be in harmony with the decree.
Here the distinction must be made between a declaratory decision or decree by the Holy See and an authentic interpretation. On Dec. 21, 1949, the Holy Office explained that the decree on China given in January of that year: “…has the nature of a declarative interpretation and hence can be applied retroactively and in other territories only to the extent that it deals with prescriptions of positive law which in view of extraordinary circumstances in the territory cannot be observed as to other matters it has the character of a positive provision which is not retroactive nor applicable in territories not mentioned in the decree” (Canon Law Digest, Vol. IV, p. 330).
Abp. Amleto Cicognani in his Canon Law explains that: “Interpretation is authoritative if it is given by a superior who possesses public authority. Laws are authoritatively interpreted by the lawmaker and his successor and by those to whom the lawmaker has committed the power to interpret the laws (Can. 17 §1). Cicognani goes on to explain that interpretation is merely declarative when it explains “terms of the law which are in themselves certain; declaratory properly so-called when it explains really doubtful and obscure terms of law,” which it does in this case. An authentic interpretation of the Code can be given only by the commission set up by Pope Benedict XV for the authentic interpretation of canon law. Can. 17 §2 reads further: “The authoritative interpretation of the law, given in the form of law, has the same force as the law itself; if it merely declares the meaning of the words of the law that were certain in themselves the interpretation need not be promulgated, and it has retroactive effect; if the interpretation restricts or extends the original law or explains a doubtful law, such interpretation does not have retroactive effect and must be promulgated.” The China decree is the latter.
This Dec. 21, 1949 reply was private and appears never to have been officially promulgated, as it is not appended to the Code, nor is it listed as being entered into the Acta Apostolica Sedis. Therefore it does not actually have the force of law accorded to the canons. The canons must apply first, whenever they can be obeyed and only in emergency circumstances beyond the lifting of impediments would the China decree be able to be extended to cover marital situations. And while these impediments can be said to have been retroactively lifted in all cases, this does not change the fact that two Catholics marrying before a non-Catholic minister in a religious ceremony only attempt marriage and additionally incur suspicion of heresy under Can. 2316, in addition to excommunication under 2319 §1.