+Twentieth Sunday after Pentecost+
Over the years, many have submitted questions about marriage issues asking what they should do in these times when there is no priest, bishop or pope to consult regarding one’s marital status and no real guidance on what one should do. Years ago, a decision was discovered in the Canon Law Digest (Vol. III, Can. 1067 and Vol. IV, Can. 1071) that simplified matters, stating that in emergency situations such as existed under Communist rule in China in the 1940s, all impediments to marriage are lifted save for those of affinity and marriage to one in Orders or a religious under perpetual vows (which is not applicable today). Even the usual form for marriage seems not to be necessary for validity (although it should always be used by Catholics whenever possible). The Holy Office determined that this decision also could be applied to any region suffering the same circumstances (absence of priests and difficulty of obtaining dispensations) and this certainly applies to us today. (See the article on these papal decisions at https://www.betrayedcatholics.com/spiritual-sacraments-mass-of-st-john/; subhead Matrimony).
Those already praying at home who now are seeking release from marital situations or suffering from anxiety about the validity of their marriages will be surprised to learn that they are not considered validly married under Canon Law if they were married by a Traditional or Novus Ordo minister whom they believed to be a true priest, but who in fact could not validly witness the marriage. This is stated in Can. 1094: “Those marriages only are valid which are contracted either before a pastor or the local ordinary or a priest delegated by either and at least two witnesses…” The law considered only priests subject to their bishop and delegated to celebrate marriage by a bishop in communion with the Roman Pontiff as true and lawful pastors, to whom the parties were subject. Since this was not the case, these marriages were invalid. HOWEVER, THOSE WISHING TO REMAIN IN THEIR MARRIAGES NEED ONLY REPEAT THEIR VOWS USING THE LINK ABOVE TO RENEW THEIR CONSENT. It is as simple as that.
The above assessment of validity is based on the fact that scarcely anyone, if anyone at all, knew of the concessions granted to China and its application to those of us today until about 2015. Therefore, they believed they must be validly married under the current 1917 Code of Canon Law. The fact that this law was not made known to them as the Holy See desired is proof itself, at least on the part of Traditionalists, that the marriages they officiated at were the product of deceit, since these “pastors” pretended to lift impediments that never needed lifting and presented as lawful minsters of the Church when they were not. This in itself would invalidate the marriage under Can. 104 as an act of fraud, outside anything governed by Can. 1094.
Those truly unable to remain in marriages apparently invalid under Can. 1094 may today consider themselves free to leave or divorce civilly, if married in the Novus Ordo or by a Traditionalist cleric. First, however, every effort should be made to resolve any problems in the marriage, especially where children are involved, and simply repeat vows according to the Can. 1098 exception. Where this is not possible, the Catholic is free to marry any partner, Catholic or not, as long as the promises are sincerely given to raise the children Catholic and that the non-Catholic will never interfere with the Catholic spouse’s practice of religion. This should be secured by a pre-nuptial agreement. The person conducting the marriage ceremony should invoke Can. 1098 in the presence of two witnesses (Catholic, whenever possible) and use the Catholic form of marriage prior to any civil registration of the marriage. The Church advises that the marriage also be registered with the civil authorities, although some disagree with this recommendation. But without civil record, it could happen that if problems arise with the marriage in the future, it would be difficult to prove it actually took place.
Marriage in the Catholic Church has the presumption of validity, provided that it is celebrated according to the laws of the Church. The question is: who would the Church of 1958 consider as Catholic and married within the Church?
Marriage cases usually decided by the diocese
The above is the simplest avenue to deciding many cases today. But other instances involving contested marital consent and the application of the Pauline and Petrine Privilege is an entirely different matter. Except in the case of the Pauline Privilege, doubtful baptisms are to be considered valid unless positively proven otherwise Decision. On Can. 1070, Canon Law Digest, Vol. III; T. Lincoln Bouscaren, 1954; AAS 41-650). Such matters were referred to the diocesan courts and the cases were treated much like they currently are treated in family courts today, with all the same legal formalities observed, only in an entirely Catholic fashion. Appeals of these decisions were forwarded to the Roman Rota or the Roman Pontiff. Had Traditionalists done for the faithful what should have been done and tried to supply for the many difficulties they would face without a true pope, instead of focusing entirely on the Mass and Sacraments (which could not be provided without grave sin), some legal substitute for determining cases today might have been possible, but of course this is not the case.
This leaves those wishing to convert, to resolve their marriage situations and to remarry in an intolerable situation. Marriage is a natural right, and grave sins can result if men and women are denied this right. On the other hand, grave sin results if one marries and is still judged by the Church to already be married. Because authoritative and educated decisions in these matters cannot now be obtained, (and no, Traditionalist “bishops” have no jurisdiction or expertise of any kind to decide such matters), what are Catholics wishing to keep the faith at home and remain faithful to do? It seems that in this matter, given that the Church in the China emergency lifted all her impediments save a few, that the natural right to marry would prevail over existing Church law. “Strict disciplinary laws are imposed by Holy Mother Church upon her children, and they are all for their own welfare. As soon, however, as they would militate unduly against their welfare, the Church is willing to adapt to embarrassing circumstances mitigating her apparently inflexible laws for the benefit of her children” (John De Reeper, MHF, The Jurist, April 1954, Vol. 2: The History and Application of Canon 1098). This is reflected in the Church’s emergency laws for China.
Vacantis Apostolicae Sedis, Pius XII’s papal election law governing us during an interregnum, forbids any alteration or dispensation from the canons. We also know, from following the principles that a probable opinion cannot be used concerning the validity of the Sacraments, that such also would be the case regarding marriage. Yet probable opinions differ from moral certainty, which is what must be reached in marital cases. And Pope Pius XII has decided it is not necessary to arrive at a high degree of moral certainty in these marriage cases, (since moral certainty admits of degrees). He also states that the judge should reconcile his opinion with the common opinion of well-educated people (Canon Law Digest, Vol. III, T. Lincoln Bouscaren, S.J., S.T.D., LL.B., 1954; AAS 34-338). In another address, the pope further teaches that civil tribunals can decide cases of nullity regarding marriages and that the Church will accept these as valid (Ibid., p. 654, AAS 38-391). However, most states do not treat all of the same causes for nullity that the Church will allow, so those not treated would need to be considered separately. Nor does the state today accept the full moral implications of the causes of nullity; in fact much of the time these are not considered at all, or are considered only to a certain extent, or in a negative way. Pope Pius XII further explains moral certainty below.
Pope Pius XII differentiates between moral certainty and probability
“According to Can.1869 §1, in order that the judge may be able to pronounce his decision there is required moral certainty regarding the facts of the case which is to be decided. Now this certainty, based on the constancy of the laws and practices which govern human life, admits of various degrees. There is absolute certainty in which all possible doubt as to the truth of the fact and the unreality of the contrary is entirely excluded. Such absolute certainty, however, is not necessary in order to pronounce the judgment. In many cases it is humanly unattainable; to require it would be to demand of the judge and of the parties something which is unreasonable. It would put an intolerable burden on the administration of justice and would very seriously obstruct it.
“In contrast to this supreme degree of certitude, common speech often designates as certain a cognition which strictly speaking does not merit to be so-called but should rather be classed as a greater or lesser probability because it does not exclude all reasonable doubt but leaves a foundation for the fear of error. This probability or quasi-certainty does not afford a sufficient basis for a judicial sentence regarding the objective truth of the fact. In such a case, that is when the lack of certainty regarding the fact at issue forbids pronouncing a positive judgment on the merits of the case, the law and especially the rules of procedure supply the judge with obligatory norms of action in which presumptions of law and rules regarding the favor of the law have a decisive importance. The judge cannot afford to ignore these rules of law and procedure. Yet it would be an exaggerated and wrong application of these norms and as it were a false interpretation of the mind of the legislator were the judge to seek recourse to them when there is not only a quasi-certainty but certitude in the proper and true sense. There are no presumptions nor favor of law as against the truth and a sure knowledge thereof.
“Between the two extremes of absolute certainty and quasi-certainty or probability is that moral certainty which is usually involved in the cases submitted to your court and of which we principally wish to speak. It is characterized on the positive side by the exclusion of well-founded and reasonable doubt and in this respect it is essentially distinguished from the quasi-certainty which has been mentioned, On the negative side, it does admit the absolute possibility of the contrary and in this it differs from absolute certainty, the certainty of which We are now speaking. It is necessary and sufficient for the rendering of a judgment even though in the particular case it would be possible either directly or indirectly to reach absolute certainty. Only thus is it possible to have a regular and orderly administration of justice going forward without useless delays and without laying excessive burdens on the tribunal as well as on the parties.
“Sometimes moral certainty is derived only from an aggregate of indications and proofs which taken singly do not provide the foundation for true certitude but which when taken together no longer leave room for any reasonable doubt on the part of a man of sound judgment. This is in no sense a passage from probability to certainty through a simple cumulation of probabilities which would amount to an illegitimate transit from one species to another essentially different one. It is rather to recognize that the simultaneous presence of all these separate indications proofs can have a sufficient basis only in the existence of a common origin or foundation from which they spring — that is, an objective truth and reality. In this case, therefore, certainty arises from the wise application of a principle which is absolutely secure and universally valid; namely, the principle of a sufficient reason… This moral certainty with an objective foundation does not exist if there are, on the other side, — that is in favor of the reality of the contrary — motives which a sound, serious and competent judgment pronounces to be at least in some way worthy of attention and which consequently make it necessary to admit the contrary is not only absolutely possible, but also in a certain sense probable” (Ibid. C.L. Digest III, AAS 34-338).
Cumulative circumstantial and other evidence, then, can lead to certainty in such matters and does not involve the use of a probable opinion regarding the validity of marriage. Hypothetical examples of such cumulative evidence are as follows:
Case 1: Miriam, a Catholic, marries Mark a Lutheran who before the marriage declares that he will marry her only on the condition that she agrees to use birth control. Miriam’s aunt overhears Mark propose this requirement and objects, but Miriam does not believe that her future husband is serious. They marry under Can. 1098, and when he later deserts her because she refuses to use contraceptives, he tells friends in a public place that he is not a “baby machine” and won’t stay with a woman who saddles him with a passel of kids. Mark does not deny he asked Miriam to use birth control and will not return to the marriage. Miriam requests an annulment.
Case 2: John a Catholic and Thelma a non-Catholic discover that Thelma is pregnant, and Thelma demands that he marry her. John is reluctant to marry and gets drunk the day of the scheduled wedding. The two marry with a dispensation for mixed marriage, and later John learns that Thelma had been with another man and the child is not his. John leaves Thelma because he believes the wedding was a sham and now wishes to remarry.
Case 3: Douglas, a Catholic, becomes engaged to Louise, a Fundamentalist. Louise tells him she has suffered some problems with drugs in the past but is now clean and promises she will not return to her former habit. They marry before a Traditionalist “priest” and after a few years of marriage Louise returns to her drug habit. She becomes increasingly irrational and commits petty crimes. She neglects the children of the marriage. Douglas divorces her to protect the children but would like to provide them with a good Catholic stepmother.
In all the above cases, provided trustworthy witnesses are willing to sign and notarize affidavits for the complainant and there is no evidence to contradict these statements, there seems no reason to believe that these marriages were ever valid, owing to a sinful future condition, fraud, marriage before a schismatic and drug-induced insanity. All these types of cases have been heard before the chancery or the Roman Rota and were determined to be invalid. Other than the law for China, there is no law governing how such cases should be handled when there can be no recourse to the diocesan courts. This situation falls under Can. 20 which reads: “If there is no explicit provision concerning some affair either in the general or in the particular law, a norm of action is to be taken (unless there is question of applying a penalty) from laws given in similar cases, from the general principles of law applied with the equity proper to Canon law, from the manner and practice of the Roman Curia and from the common and constant teaching of approved authors.”
It would seem that the best way to document these cases in an objective manner is to have a paralegal work up the evidence and prepare it in legal form as though it would be submitted into evidence in court. Discovery would need to be requested from the opposing party. The mind of the legislator is exhibited in the emergency laws for China. Many decisions issued on nullity, especially, from pre-1959 cases, are available for comparison. Appeal cases decided by the Roman Rota also are available. All that is needed for proof of the Can.1094 invalidity is a certificate of marriage signed by a Traditionalist and a notarized statement that there has been no previous or subsequent marriage, accompanied by a marriage license search for all 50 states. But of course, all this is based on whether or not the individuals seeking such marital remediation have truly embraced the pray-at-home position. This would include signing a profession of faith, at least starting the three-year probation period and formally pledging to abstain from attendance at any type of Traditionalist or other non-Catholic ceremonies. Otherwise they would be classified as validly married in a non-Catholic church as non-Catholics.
Ideally, Catholics would first need to complete their three-year probationary period before proceeding any further with remedying their marital situation. But because this could involve sin where a marital situation is in dispute, it is not practical. There is no formal organization among pray-at-home Catholics: all is done according to the honor system. Some have only pretended to embrace the pray-at-home position in order either to gain some sort of advantage or for reasons unknown; this is on them. You can fool others, but God will always know your true intentions. One marriage situation yet to be covered is that which falls under the Pauline Privilege or the privilege of faith. These cases depend entirely on the good will of the ones who wish to invoke this privilege, and therefore will be more difficult to gauge.
The Pauline Privilege
In the Canon Law commentary by Revs. Woywod-Smith, the header over Can. 1127 reads: “In doubtful cases the Pauline Privilege has the favor of the law.” This means, under Can. 1120, that even if some of the facts are doubtful in cases where the Pauline Privilege is invoked, the privilege still applies. This privilege applies, however, only to those unbaptized at the time of the marriage, although one is later baptized a Catholic. These marriages may be considered dissolved in favor of the one who converts, provided the unbaptized partner 1) does not wish to convert and be baptized and 2) will not live peacefully with the other party if not baptized, meaning he or she will not interfere with the other’s practice of the Catholic faith. These two conditions are called interpellations and can be established by the convert with the testimony of two witnesses (Can. 1122).
The Catholic party is free to marry if the answer to the interpellations is in the negative, unless, after Baptism, he or she has given the unbaptized party just cause for separation (Can. 1123). Doubts may often arise about the validity of the marriage contracted in infidelity; the person of the first wife, (which may be one of several wives); the validity of the baptism of one party; the sincerity of the unbaptized party to live peacefully with the converted party; about sufficient reasons for dispensation form the interpellations (in certain cases); about the existence of the marriage contracted or about verification of all the conditions required to apply the Pauline Privilege. The Pauline privilege cannot be invoked if one of the parties was validly baptized at the time of the marriage. And civil divorce often complicates matters. Since any insoluble complications would need to be referred to the Rota or the Roman Pontiff, only the simplest of cases under these canons would be able to be resolved, and many of these cases today are anything but simple.
Applying the above remedies
We must all work out our salvation in fear and trembling, and in these times this Scripture verse is more applicable to us than ever before. This author can provide necessary past case information from various sources and offer technical assistance, but in no way can any opinion on these matters be ventured. This is strictly a matter of conscience on the part of the parties involved. Strict honesty and due diligence in conducting the investigations described above is the only guarantee that they will be acceptable to God, and that any unions which may follow will enjoy His favor and approval. Being willing to abandon any attempts to reconcile such marriages when the proof clearly shows that moral certainty cannot be achieved must be fully understood and accepted before ever embarking on the task of investigating them. For it means accepting as God’s will a situation which may seem difficult or impossible, such as living together as brother and sister or permanent separation. Yet with fervent prayer and God’s help there is always a way to survive such situations as a Catholic.
For those who are able to reconcile their marital situation, the task is not over. They then must study the Church’s true teachings concerning marriage and realize that the modern idea of marriage presented today, while practiced by many calling themselves Catholic, is so far removed from what Christ desires for His Church that it can end only in grave sin. Natural Family Planning, condemned by many of those professing to be Traditional Catholics, is only one of such modern ideas. And yet if a very serious reason exists to use this method, and this author considers family economics and the many dangers present to children in this time serious reasons, it can be used and in certain cases should be used. Abstinence from marital relations, when no danger of impurity concerning either partner exists, is key to strengthening both the will and serving as a safeguard to marital purity. This is true even when there is no hope of procreation. Below we will find Pope Pius XII’s teaching on marital purity and the discussion of marital relations among Catholics most helpful in determining what the Catholic attitude should be.
Pope Pius XII speaks on marital purity
Much discussion has appeared in the past several years on the Internet concerning certain sexual practices in marriage, particularly regarding the teachings of St. Alphonsus Liguori. From personal experience, some of these translations of St. Alphonsus have been unreliable and one, at least, even reversed what he actually taught. And yet Pope Pius XII warned authors in 1951 that: “Not a few authors treating of conjugal life frequently descend without reserve to describing openly and minutely all its details: moreover, some of them describe, praise and recommend a certain act” (which the Church forbids). “Lest it fail in its duty in regard to so grave a matter, which concerns the sanctity of marriage and the salvation of souls, the Supreme Congregation of the Holy Office, by express mandate of His Holiness by divine Providence Pope Pius XII, issues a serious warning to all the aforesaid writers that they desist from acting in this way. It also earnestly exhorts the sacred pastors to maintain a strict vigilance over these matters and apply solicitously the appropriate remedies” (AAS 44-546; Canon Law Digest, Vol. 3, Can. 1081).This should put an end to all such online discussion of these matters, although sadly it probably will not do so.
In another address listed in the same volume cited above, under Can. 1111, from an October 1951 address to Italian Catholic midwives, the Pope wrote:
“[Married couples] must contain themselves within the bounds of just moderation. Just as in the enjoyment of food and drink, so in their sexual pleasure they must not abandon themselves without restraint to the impulse of the senses. The right norm is therefore as follows: only in marriage and on condition [that procreation is not excluded] is the desire and enjoyment of that pleasure and satisfaction licit. For the pleasure is subject to the law which governs the action from which it springs and not vice versa; that is, the law is not subordinate to the pleasure. And this law so conformed to reason applies not only to the substance of the action, but also to its circumstances, so that even though the substance of the act be not perverted there can be sin in the manner in which it is performed.
“The transgression of this norm is as old as original sin but today there is danger of losing sight of the fundamental principle itself. For at the present time, it is a common thing — even on the part of some Catholics — to maintain, in speech and writing, the necessary autonomy, the proper end and proper value of sexuality and its use, independently of the purpose of generating a new life. Those who hold such views would subject the order established by God to a re-examination and a new norm. If nature had intended exclusively or at least primarily the mutual giving of the spouses one to another and their mutual possession of one another enjoying pleasure, and if it had destined that act only for the purpose of enriching their personal experience with the highest possible felicity and not in order to stimulate them to service of life, the Creator would have adopted a different design in the formation and constitution of the natural act.
“A flood of hedonism is pouring over the world threatening to engulf every aspect of married life in a rising tide of hedonistic thoughts, desires and acts, not without serious danger and grave harm to the primary duty of married persons. This anti-Christian hedonism is often unblushingly erected into a doctrine inculcating the eager desire to intensify without limits the pleasure experienced in the preparation and performance of the conjugal act as though in marital relations the whole moral law consisted in the regular performance of the ACT itself and all the rest, no matter how it were done, were justified by the outpouring of mutual affection sanctified by the Sacrament of marriage meriting praise and reward before God and in conscience.
“The dignity of man, the dignity of the Christian which imposed some restraint on the exercises of sensuality these count for nothing with them… [However], the gravity and sanctity of the Christian moral law do not permit an unbridled satisfaction of the sexual instinct and the exclusive quest of pleasure and enjoyment; nor that man endowed with reason should permit himself to be dominated by passion to that extent, either as regards the substance of the act or its circumstances… The happiness of marriage is in direct proportion to the mutual respect the parties show for each other, even in their most intimate relations. Not that they judge to be immoral and consequently refuse what nature offers and what the Creator has given them, but because THIS RESPECT AND MUTUAL ESTEEM WHICH IT FOSTERS IS ONE OF THE SOUNDEST ELEMENTS OF A LOVE THAT IS PURE AND FOR THAT VERY REASON ALL THE MORE TENDER.”
THAT is true marital love! May all who endeavor to achieve it never forget this beloved pope’s most important words.