The Validity of Confessions and Marriages
in the chapels of the Society of St. Pius X

A CANONICAL STUDY

by Rev. Ramón Anglés

5. THE EXTRAORDINARY FORM FOR MARRIAGE

5.1. THE CANONS IN ENGLISH

* If the pastor, or the local Ordinary, or a priest delegated by either, who should according to Canons 1095 and 1096 assist at the marriage, cannot be had, or the parties cannot go to him without great inconvenience, the following rules are to be observed:

1. In danger of death, marriage may be validly and licitly contracted in the presence only of two witnesses; even apart from the danger of death marriage may be thus contracted, if it can be prudently foreseen that this state of affairs will continue for a month;

2. In both cases, if there is at hand another priest who can be present at the marriage, he should be called and should assist at the marriage together with the witnesses, without prejudice however to the validity of the marriage contracted only before the witnesses. (Canon 1098)

* #1. If the presence of or access to a person who is competent to assist at marriage in accord with the norm of law is impossible without serious inconvenience, persons intending to enter a true marriage can validly and licitly contract it before witnesses alone:

1. in danger of death;

2. outside the danger of death, as long as it is prudently foreseen that such circumstances will continue for a month.

#2. In either case and with due regard for the validity of a marriage celebrated before witnesses alone, if another priest or deacon who can be present is readily available, he must be called upon and must be present at the celebration of the marriage, along with the witnesses. (New Code Canon 1116)

5.2. NOTIONS

The Church has determined in Canon 1094 (New Code Canon 1108) that the ordinary form for a valid marriage requires the presence of the pastor, or the local Ordinary or a delegated priest, and of at least two witnesses. However, both Codes contemplate exceptions from the ordinary canonical form, in which it is possible for the parties to contract valid and licit marriage before two witnesses, and without the presence of the authorized priest. Canon 1098 (New Code Canon 1116) considers two exceptional cases, of which the second interests us particularly.

* The MAIN CONDITION laid down by the Code in order to permit a marriage without the presence of an authorized priest is expressed in the following very far-reaching terms: Haberi vel adiri nequeat sine gravi incommodo. This grave inconvenience is something which cannot be defined with mathematical accuracy, because much depends on circumstances and conditions; this is the reason why the Code is not more explicit, remaining almost reticent to precise cases.

It must be understood that this difficulty of securing the presence of the priest at the marriage need not be a general or common difficulty, but may be a particular and individual difficulty of the particular priest and couple.

The commonest situation is the one in which the priest is not physically reachable: there is no priest in the region, as it still happens in the immense territories of mission areas; or there is a religious persecution which makes it dangerous for his life to leave his refuge. The authors and the decisions of the Roman Rota clearly state that not only a physical impossibility, but also a MORAL INCONVENIENCE of a spiritual nature for the parties to have recourse to an authorized priest is sufficient to invoke the exception from ordinary canonical form, as long as the other conditions are also existing (danger of death, or physical/moral absence estimated for a month). For us, this is a capital argument.

* The FIRST CASE considers the danger of death on at least one of the parties, when the authorized priest can neither be secured nor approached according to the general aforementioned condition. In such situation, the expression of mutual consent before two witnesses (words or even signs if the parties cannot speak) will be sufficient for a valid and licit marriage.

The danger of death, as we saw in the past article, need not necessarily arise from illness only, for the Code speaks of danger of death generally, from any source. A bona fide belief of the parties that there is a danger of death before the authorized priest can be had is more than sufficient. If a mistake is made in estimating the danger, the marriage remains valid. Furthermore, there is no need of a special reason why the parties want to get married in danger of death, for the law does not require any.

If a priest without faculties is at hand, he is to be called in order to assist at the marriage, even though this is not necessary ad validitatem matrimonii. In virtue of Canons 1043-1046 (New Code Canon 1079) this priest has ample faculties to dispense from all ecclesiastical impediments, excepted the one resulting from the reception of sacred orders. He could also dispense from the forma substantialis, therefore from the need of having two ordinary witnesses.

* The SECOND CASE when permission is given to the parties to marry without observing the ordinary form is the one in which:

1. the authorized priest is physically or morally absent and cannot be had or approached without grave inconvenience, and

2. it is prudently foreseen (praevideatur) that this state of affairs (namely, the difficulty of getting an authorized priest without grave inconvenience) will last for at least ONE MONTH.

When these two conditions concur, the parties do not need to observe the canonical form, even outside the danger of death. Two ordinary witnesses suffice. And, when in extraordinary circumstances even the two witnesses demanded by Canon 1098 cannot be present, and there is no one who can dispense from the forma, the parties may in a case of very grave necessity proceed without the two witnesses. Such is the liberality of the Church, always zealous of the spiritual good of her children, making readily available to them the Sacrament of marriage in exceptional situations.

The first condition has been already briefly explained; the texts in 5.3. will be more explicit and satisfying. But note that the marriage will be null if the belief that the priest cannot be reached is erroneous; so, if the FACT of the physical or moral impossibility was nonexistent, though the parties honestly and inculpably believed that it existed, there is no valid marriage.

The second condition simply requires a prudent and objective estimation, by inquiry or from notoriety of the fact, that the authorized priest will be neither available nor accessible physically or morally without grave inconvenience for at least one month.

It is immaterial if the authorized priest happens to be available within the month, or if the Ordinary shows unexpectedly for a visit. The marriage once celebrated under these conditions remains valid.

Vermeersch, Periodica XIV, 185-186; XV, 45-46, goes even further. According to him, the marriage would be valid whenever the circumstances were such that it could have been prudently foreseen that for at least one month there would be no competent priest available, even if the parties themselves did not foresee this fact nor avail themselves of the opportunity offered to them to obtain a dispensation from the ordinary canonical form.

Miguélez, Comentarios al Código de Derecho Canónico, 1963, II, 507, says that the marriage will be valid even though the parties are firmly persuaded that the state of affairs is to change the next day, as long as reality indicates objectively that it will continue for one month. A hypothetical case, no doubt, but nonetheless revealing clearly the mind of the Church.

The Code adds for the LICEITY of the marriage the same condition mentioned above: if a priest without faculties can be called, he must be called and must assist at the marriage.

The precept obliges the priest and the parties, but its fulfilment only affects the liceity of the marriage, never the validity of its celebration before only two ordinary witnesses.

5.3. SOME TEXTS

* Merkelbach, Summa Theologiae Moralis, 1949, III, # 849: Ad validitatem forma extraordinaria... sufficit: 1) QUODCUMQUE INCOMMODUM GRAVE, SPIRITUALE VEL TEMPORALE, sive partes directe afficiat, sive sacerdotem . . . 2) sufficit et requiritur IMPOSSIBILITAS PERSONALIS, non requiritur communis seu localis, nec sufficit communis si desit personalis... 3) non requiritur specialis causa: quodcumque motivum ineundi matrimonium sufficit.

* Coronata, op. cit. III, 1048: Relative adire nequit si absolute quidem possint sacerdotem adire, at id non posssint sine gravi incommodo sive personali, sive sacerdotis competentis, sive tertiae personae, sive boni publici. Non est necesse ut incommodum grave sit omnibus commune; sufficit incommodum personale quod vel unam contrahentium partem afficiat.

* Regatillo and Zalba, op. cit. III, # 930: Absentia parochi vel ordinarii vel delegati, seu impossibilitas eum habendi vel adeundi, non requiritur iam physica; SUFFICIT MORALIS, quae adest quando parochus vel Ordinarius, licet materialiter praesens, ob grave incommodum matrimonio assistere nequit requirens et excipiens consensum.

*Iidem, ib.: Vocandus est etiam censuratus ante sententiam condemnatoriam vel declaratoriam; post sententiam videtur posse vocari, quia nec sacramentum conficit nec sacramentale, si solum consensum requirat.

* Code Commission, 25 July 1931, as in Bouscaren, op. cit., I, p. 542: The Code Commission was asked: Whether the "physical absence of the pastor or Ordinary" includes also a case where the pastor or Ordinary, although materially present in the place, is unable by reason of grave inconvenience to assist at the marriage asking and receiving the consent of the contracting parties. REPLY: In the affirmative.

* Van Kol, op. cit., II, # 662: Adire vel arcessere testem qualificatum impossibile esse potest, non solum physice, SED ETIAM MORALITER OB GRAVE SC. INCOMMODUM.

* Idem, ib., # 665: Sacerdos iste, qui ex supposito facultate assistendi caret, non prohibetur quominus contrahentium consensum requirat iisque benedictionem nuptialem impertiat, sed neque ad haec tenetur vi huius canonis.

* Wernz and Vidal, Ius Canonicum, V, # 544: Relativa impossibilitas datur cum ad hoc ut habeatur vel adeatur sacerdos competens aut ut obtineatur sacerdoti incompetenti necessaria delegatio sit subeundum GRAVE DAMNUM PHYSICUM VEL MORALE.

* Lazzarato, op. cit, # 926, 5: Impossibilitas parochum habendi vel adeundi est absoluta, si tempus desit omnino aut medium nequaquam suppetat, ut vel nupturientes ad ipsum se conferre vel cum eo convenire possint vel ut ab eodem per epistolam delegatio obtineatur; est RELATIVA, SI NOTABILE DAMNUM physicum vel MORALE . . . PARTIBUS proveniret.

* Idem, ib., 6: Unde sponsi non tenentur magnas sustinere expensas, vel iter valde durum et molestum suscipere, aut PERICULO ALICUIUS GRAVIS DAMNI se exponere, ut testem habeant qualificatum, quamvis forte culpabiliter neglexerint, immo fraudulenter, occasionem, eum commode habendi.

* Idem, # 927, 6: Non sufficit ergo quaelibet subiectiva persuasio, sed IMPOSSIBILITAS requiritur, seu GRAVIS DIFFICULTAS SALTEM MORALIS, innixa fundamento reapse exsistente.

5.4. APPLICATION TO OUR CASE

The most important elucidation to make concerning the application of Canon 1094 (New Code Canon 1108) is the one which regards the grave inconvenience on the part of the couple to be married to approach an authorized priest.

It is proven by the law, the authors and the praxis of the Church that:

1) the grave inconvenience may be on the part of the couple only,

2) the grave inconvenience may be of a moral nature,

3) this grave inconvenience of a moral nature may be a significant moral harm for the parties.

Consequently, the ordinary canonical form for marriage does not apply :

1) when full observance of the law requesting the presence of an authorized priest would involve a danger for the soul, AND

2) at least one of the parties is in danger of death, OR there is a prudent assessment that the state of affairs contemplated in # 1 will continue for at least one month.

It is beyond doubt that traditional Catholic faithful cannot approach a Modernist parish priest who will submit them to a deformed teaching concerning the doctrine of the ends of marriage, or the duty of procreation, or conjugal morals. The New Code (and with it the New Catechism of the Catholic Church) reverts the ends of marriage, and presents them as equal and independent: The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring (New Code Canon 1055,1).

The traditional doctrine expressed in Canon 1013 established an order and subordination among the ends of marriage, as the consultation of any pre-Vatican II moral manual will confirm: The primary purpose of marriage is the procreation and education of children. The secondary purpose is to furnish mutual aid and a remedy for concupiscence. A radical difference indeed!

Such distortion constitutes a very serious danger for the faithful, who can be led to wrong opinions such as the primacy of the common good of the spouses over the duty of procreation and education of the children. It is the open door to justify modern prevalent errors concerning divorce, contraception, sexual behavior, etc.

The faithful who have recourse to a Modernist priest put their very faith in danger of compromising with the post-conciliar Liberal doctrines such as ecumenism and religious liberty, not to mention the myriad of horrors that have issued from the Vatican II revolution and which have affected Catholic beliefs and practice. They are perpetrated in virtually every "modern" parish in the world.

The parties have also the unalienable right to celebrate their union with the Mass for the Spouses according to the traditional Mass, in virtue of Saint Pius V’s Bull Quo Primum Tempore, and not with the New Mass of Paul VI, which "represents, both as a whole and in its details, a striking departure from the Catholic theology of the Mass as it was formulated in Session 22 of the Council of Trent" (Cardinals Ottaviani and Bacci, Short Critical Study of the New Order of the Mass). New Code Canon 214 confirms that: "The faithful have the right to worship God according to the prescriptions of their own rite approved by the legitimate pastors of the Church, and to follow their own form of spiritual life consonant with Church’s teaching."

We cannot forget the danger of scandal. Even though a particular couple may be and remain strong in the faith despite the recourse to the local Modernist priest, their implicit acceptance of a Modernist liturgy or of the deformed Modernist teachings may cause other couples to follow their example and expose their not-so-strong faith to a serious danger. This grave inconvenience for a third party is also a reason to claim exception from the ordinary canonical form (see above Coronata’s text).

The present crisis of faith in the Catholic Church puts our faithful in the precise condition required by Canon 1098 (New Code Canon 1108): they cannot have recourse to any authorized priest without putting their soul in grave danger of compromising, diminishing or even losing their faith.

Therefore, IN DANGER OF DEATH our traditional Catholic faithful can exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid. Furthermore, OUTSIDE THE DANGER OF DEATH, since it is a prudent estimation that the present crisis and the danger for the faith will continue to make it morally impossible for the parties to have access to an authorized priest for more than one month, they may exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid.

For the liceity of the ceremony, our priests if available must be called and must assist, performing the usual ceremonies.

If a doubt remains, since the doubt is founded on solid canonical and theological grounds, it is a positive and probable one. In the occurrence, the Church supplies the necessary jurisdiction according to Canon 209 (New Code Canon 144).