A Survey of Traditional Canon Law & the Pastoral Theology of Marriage

August 09, 2017
Source: District of the USA
Illustration of the Council of Trent, which mandated a witness for marriages.

In this first part of a three-part study on Canon Law and Pastoral Practice with SSPX Marriages, Fr. Knittel provides a historical survey of this issue.

On April 4, 2017, the Vatican published a document dated March 27 concerning marriages celebrated by the priests of the Society of Saint Pius X (SSPX). In it, at the instruction of Pope Francis, Cardinal Gerhard Müller—Prefect of the Congregation for the Doctrine of the Faith—and Archbishop Guido Pozzo—Secretary of the Ecclesia Dei Commission—invite bishops to facilitate the celebration of these marriages in their respective dioceses. The document recalls that, in the traditional rite, the exchange of consent precedes the celebration of Mass. In all cases, the priests of the Society are authorized to celebrate the nuptial Mass according to the traditional rite. On the other hand, the exchange of consent can be received either by a priest mandated for this purpose by the diocesan bishop or by the priest of the Society who in that case receives delegation from him directly.

The Decree of the Council of Trent

Until the Council of Trent, couples who exchanged their consent in the absence of any witness—priest or laymen—validly contracted marriage. This practice was not contrary to the doctrine of the Church, because the future spouses are ministers of the sacrament and the consent given and received constitutes the matter and the form of the sacrament although the practice created difficulties. Prior to their exchange, the intended spouses could prove to be unfit to contract a marriage by reason of an impediment. Now on the one hand, there can be no dispensation from certain impediments and, on the other hand, obtaining the dispensation is a necessary prerequisite for the validity of the consent in the case of a diriment impediment.

After their exchange, one of the spouses could claim to have given his or her consent under constraint or conditionally. In the absence of witnesses, this affirmation was difficult to verify and prove. The persistent uncertainty that hung over the validity of clandestine marriages was a serious danger for the contracting parties and for the Church. Scrupulous about the social dimension of marriage, the Council of Trent requires henceforth the presence of a witness who is authorized to receive the consents and declares clandestine marriages null and void in its Decree Tametsi dated November 11, 1563:

The Holy Council now renders incapable of marriage any who may attempt to contract marriage otherwise than in the presence of the parish priest or another priest, with the permission of the parish priest or the Ordinary, and two or three witnesses; and it decrees that such contracts are null and invalid and renders them so by this Decree.”

The Decree of St. Pius X

St. Pius X confirms this discipline in the Decree Ne temere published by the Congregation of the Council on August 2, 1907:

Only those marriages are valid that are contracted in the presence of the pastor or the local Ordinary, or a priest delegated by either one of the two, and at least two witnesses”
(no. III).

The Decree makes sure however that respect for the rule is not enforced to the detriment of the spiritual good of the future spouses:

In case of danger of death:

If the danger of death is imminent, when the pastor or local Ordinary, or a priest delegated by either one of the two, cannot be obtained, out of consideration for the conscience of the betrothed and if occasion warrants for legitimizing offspring, marriage can be validly and licitly contracted in the presence of any priest and two witnesses”
(no. VII).

In the prolonged absence of any authorized witness:

If it happens that in some region the pastor or local Ordinary or priest delegated by them, before whom marriage can be celebrated, cannot be obtained and this state of affairs has now endured for a month, the marriage can be validly and licitly entered upon after a formal consent has been given by the betrothed before two witnesses”
(no. VIII).

Since the presence of two witnesses for the validity of the marriage allows no exception, clandestine marriages remain invalid.

1917 Code of Canon Law

Prepared by St. Pius X and published by Benedict XV, the 1917 Code of Canon Law repeats and clarifies the earlier canonical discipline with regard to the exchange of consent with a view to marriage. The principle spelled out by the Tridentine Decree is reaffirmed:

Only those marriages are valid that are contracted in the presence of the pastor or the local Ordinary, or a priest delegated by either one of the two, and two witnesses, according to the rules expressed in the following canons...”
(can. 1094).

The exceptions foreseen by the Decree of Pius X are also repeated:

If the pastor or Ordinary or delegated priest who assists at marriage according to the norm of Canons 1095 and 1096 cannot be had or cannot be present without grave inconvenience:

  1. In danger of death marriage is contracted validly and licitly in the presence only of witnesses; and outside of danger of death provided it is prudently foreseen that this condition will perdure for one month;
  2. In either case, if another priest can be present, he shall be called and together with the witnesses must assist at marriage, with due regard for conjugal validity solely in the presence of witnesses
    (can. 1098).

Compared to the earlier discipline, the 1917 Code of Canon Law modifies in two points the rules for the exception foreseen outside of danger of death:

  • Whereas formerly it was necessary that the absence of the authorized witness should be certified for a month, it is now enough for it to be foreseeable.
  • Notwithstanding the validity of exchange of consent in the presence of only two witnesses, the presence of a priest—even one without ordinary or delegated jurisdiction to assist at the marriage—is henceforth recommended. The priest can thus prepare the fiancés, verify the absence of any impediment, if necessary ask for the dispensations, and make sure that the consent is free and unconditional.