Marriage According to the 1983 Code of Canon Law and the State of Necessity

August 16, 2017
Source: District of the USA

In this second part of a study on Canon Law and Pastoral Practice with SSPX Marriages, Fr. Knittel examines the 1983 Code and the state of necessity today.

Part two of the following theological and canonical study, prepared by Father François Knittel, addresses some recent controversies of the status of marriages celebrated by priests of the Society of Saint Pius X. In this second part, Father begins by looking at the 1983 Code of Canon Law before proceeding to a thorough examination of why the crisis in the Catholic Church has prompted the Society’s priests to celebrate marriages due to a state of necessity. A third part to this study will follow next week.  


Review Part 1 of this Series

1983 Code of Canon Law

The Code of Canon Law published in 1983 substantially repeats the 1917 discipline:

As for the principle:

Only those marriages are valid which are contracted in the presence of the local Ordinary or parish priest or of the priest or deacon delegated by either of them, who, in the presence of two witnesses, assists....”
(can. 1108 §1).

As for the exceptions:

§1. If one who, in accordance with the law, is competent to assist, cannot be present or be approached without grave inconvenience, those who intend to enter a true marriage can validly and lawfully contract in the presence of witnesses only:

  1. in danger of death;
  2. apart from danger of death, provided it is prudently foreseen that this state of affairs will continue for a month.

“§2. In either case, if another priest or deacon is at hand who can be present, he must be called upon and, together with the witnesses, be present at the celebration of the marriage, without prejudice to the validity of the marriage in the presence of only the witnesses”
(can. 1116).

The only novelty in the discipline promulgated in 1983 is the fact that a deacon can be the Church’s authorized witness.

Social Character of Marriage

Marriage is one of the seven sacraments instituted by Our Lord Jesus Christ in order to confer or increase divine life in souls. Ordinarily, the minister and the beneficiary of the sacrament are not identical: one person baptizes or confirms, and another is baptized or is confirmed. In the specific case of marriage, the ministers of the sacrament are also those who benefit from it: the betrothed who exchange their consent. That said, since the Council of Trent, the Church has demanded for the validity of the consent not only the presence of two witnesses, but also the presence of an authorized witness—the bishop, the pastor, or their delegate.

The social character of marriage is thus highlighted and the uncertainties connected with clandestine marriages are avoided. Since the supreme law of the Church is the salvation of souls, the canonical discipline allows two exceptions to the rule: the case of danger of death and persistent difficulty in finding an authorized witness. In these circumstances, the exchange of consent is licit and valid in the presence of only two witnesses. The assistance of a priest—without ordinary or delegated jurisdiction—is nevertheless recommended. The recent letter from the Ecclesia Dei Commission relating to marriages celebrated by the priests of the SSPX is situated in this doctrinal and canonical context. But it is also situated in an historical context that is advisable to recall briefly.

The Crisis in the Church

The convocation and the conduct of Vatican Council II were the occasion for Archbishop Marcel Lefebvre to measure the depth and the extent of the crisis into which the Church was sinking. The priesthood, religious life, the apostolate, the liturgy, catechism, social doctrine, natural-law and Gospel morality, the exercise of authority—no area of Catholic life escaped from being called into question and shipwrecked. Romano Amerio documents this in his masterpiece Iota Unum, subtitled A Study of Changes in the Catholic Church in the XXth Century. Far from giving in to fatalism, Lefebvre seized every opportunity to influence the course of events and to alert Catholics.

Besides his role in the Coetus Internationalis Patrum [International Group of Fathers] during the Council, he increased his oral and written warnings to Church authorities, to his confreres, and to the faithful. We mention for the record his interventions at the Council published in I Accuse the Council, his article “To Remain a Good Catholic Must One Become Protestant?” composed on October 11, 1964, and published on June 5, 1970, his letter to Cardinal Ottaviani dated December 20, 1966, and his participation in the composition of the “Short Critical Examination of the New Mass” published in Spring 1969.

A Priestly Work

Certain that the priesthood was an important means of overcoming the crisis, encouraged by the faithful, and begged by candidates to the priesthood, Archbishop Lefebvre decided to found a work, the ultimate purpose of which is “the priesthood and all that pertains to it and nothing but what concerns it; i.e., the priesthood as Our Lord Jesus Christ willed it when He said: ‘Do this in memory of Me’” (Statutes of the Society of Saint Pius X, no. II-1). The SSPX became a work of the Church by virtue of the approval received from Bishop François Charrière, Bishop of Fribourg, Geneva, and Lausanne, on November 1, 1970.

Once formed and ordained, the priests of the Society are intended to conduct their apostolate in the dioceses that are willing to welcome them:

Parish ministry, preaching parish missions, without geographical limits, are other works to which the Society is devoted. These ministries will be the subject of contracts with the local Ordinaries so as to permit the Society to carry out its apostolate according to its particular grace”
(ibid., no. III-5).

In contrast to all those who expected a renewal of the Church through the combined effect of the liturgical reform and the conciliar documents, Lefebvre and his work stood by the traditional liturgy and rejected the conciliar novelties (ecumenism, religious liberty, and collegiality). This attitude earned for the seminary in Écône a canonical visitation initiated by Pope Paul VI (November 11-13, 1974), which resulted in the illicit suppression of the Society by Bishop Mamie on May 6, 1975.

Archbishop Lefebvre at Ecône, at about the time of the canonical visitation in 1974.

A State of Emergency

The consequences of this first injustice were swift.

First, Cardinal Jean Villot commanded diocesan bishops to deny all incardination to the seminarians in Écône. Lacking affiliation with a diocese or a religious congregation in good standing, these seminarians could not be ordained licitly. If they disregarded the interdict, they would incur suspension a divinis (i.e. be forbidden to celebrate Mass and to administer the sacraments) and the one who ordained them would incur suspension a collatione ordinum (be forbidden to ordain). That is what happened after the ordinations on June 29, 1976.

Second, no diocese agreed to entrust an apostolate to the priests ordained by Lefebvre, because of the canonical penalty imposed on them. At the same time, many of the faithful who were devoted to the traditional liturgy and Catholic doctrine found themselves without a pastor, wandering from parish to parish in search of liturgy, preaching, catechesis, and pastoral ministry that were in keeping with the traditional practice of the Church. Logically, the shepherds without sheep and the sheep without shepherds would join forces within the framework of a substitute apostolate, while awaiting better times.

Third, after hoping for a long time for the help of other bishops to ordain his seminarians and to confirm the faithful, Archbishop Lefebvre saw that he was forced by necessity to provide himself with successors. He proceeded to the episcopal consecrations on June 30, 1988, which incurred for the consecrators and those who were consecrated the penalty of excommunication and for all those who followed them—priests and faithful—the suspicion of being schismatic.

Marriage and the State of Necessity

This painful situation led traditional priests and faithful to wonder about the canonical framework for marriages. Faithful to the precepts of the Council of Trent, initially they turned to the rare benevolent pastors who still held appointments. Some of them agreed to receive personally the consent of the spouses, while others delegated the priests of the SSPX for this purpose. But the gradual disappearance of these pastors definitively shut the door to traditional marriages celebrated in the presence of an authorized witness. Couples then found themselves in the situation where it was impossible to find within a reasonable interval a priest with jurisdiction who would prepare them for marriage according to the doctrine of the Church and would celebrate the Mass according to the traditional rite.

As authorized by the 1917 and 1983 Codes of Canon Law, they then exchanged their consent in the presence of two witnesses, while making sure that a priest of the Society made the canonical inquest, provided marriage preparation, assisted at their engagement, and celebrated their wedding Mass. A document attesting to this and signed by the betrothed and the priest was included in the marriage file.