Church accidentals, not essentials, change to prevent moral and legal problems
by Msgr. Pedro Lopez-Gallo
Photo Caption: Pope Pius X, pictured here, issued a decree in 1907 codifying the juridical form of marriage that is in use today. ( wikipedia.org )
When I was studying in Rome at the Angelicum – the famous university dedicated to St. Thomas Aquinas – and preparing my doctoral thesis in sacred theology, I was fascinated by the writings of Cardinal John Henry Newman.
It was exhilarating to learn from him the Church, unchanging in essentials, must be ever changing in accidentals. Even the essentials – doctrinal dogma and tradition – are living entities, unchanging but always developing as the changing world asks new questions.
The words Ne Temere (lest perhaps) are the opening words of the decree which concerns the juridical form required to celebrate a Catholic marriage. After consultation, with the commission of cardinals assigned the task of codifying the law of the Church, this decree was issued by Pope Pius X Aug. 2, 1907, to take effect on Easter Sunday, April 1908.
The Council of Trent had established a new discipline of marriage for the changing times, but did not abolish the essential element – that a man and woman administer the sacrament to each other. Until then, couples lived as man and wife after their betrothal and the priest’s blessing was not required.
I feel that we are re-living this debate.
The controversies arising from the pontifical exhortation of Pope Francis, Amoris Laetitia, will probably drag on at least until the next pontificate, unless Francis convokes an ecumenical council to repeal false interpretations. Certainly, we are entering a new phase.
The Tametsi decree of the 24th session of the Council of Trent established a juridical form necessary for the validity of marriage. It says: “Those who shall attempt to contract marriage otherwise than in the presence of the parish priest or of another priest authorised by the parish priest or by the ordinary and in the presence of two or three witnesses, the holy synod renders absolutely incapable of thus contracting marriage and declares such contracts invalid and null, as by the present decree it invalidates and annuls them.
Despite the Tametsi decree, and despite further clarifications from the Roman congregations and the wide faculties given to ordinaries and their delegates, there still remained great need for further amplification and legislation in the Church with regard to the form of marriage.
Clandestine marriages continued to be contracted and this often condemned practice presented many moral as well as legal problems. The decree Tametsi had not been published everywhere and doubts remained concerning the proper pastor before whom a marriage was to be contracted. Finally, the decree had made no exception from the law for baptized non-Catholics.
The last difficulty had been somewhat alleviated by the decree Matrimonia Quae in Locis of Benedict XIV, which exempted baptized non-Catholics from the juridical form of marriage. In his declaration, Benedict XIV referred to the widespread doubts and anxieties that troubled bishops, pastors, and missionaries concerning the validity of marriages with non-Catholics, and mixed marriages.
To settle the various difficulties once and for all while abolishing any contrary law or custom, the Ne Temere decree made the following provisions:
All Latin rite Catholics were bound to the juridical form of marriage when they married Catholics.
Non-Catholics were exempted when they married among themselves.
The “communication of privilege” was abolished, so Catholics were bound to the juridical form when they married non-Catholics.
The juridical form required the presence of the local ordinary, or pastor, or priest delegated by either. All of them could validly assist at all marriages within the territorial limits of their respective jurisdictions plus two witnesses were required.
In imminent danger of death, if neither the ordinary nor the pastor could be present, marriage could be contracted validly before any priest and the two witnesses, for the sake of peace of conscience or the legitimation of offspring.
In places where the local ordinary, priest or his delegate could not be present and this absence had endured for at least a month, marriage could be contracted before two witnesses without the presence of a priest.
The legislation on the canonical form of marriage as laid down by this decree was later substantially adopted by the Code of Canon Law which went into effect in 1918.
The one major difference between the new legislation and the Ne Temere decree concerned persons who had been baptised in the Catholic Church but who later lost their identification with the Catholic faith. The Ne Temere decree made no exception for these persons with regard to the canonical form of marriage.
The Code provided for them in canon 1099.2 exempted non-Catholics who had been baptised in the Catholic Church – provided that one or both of their parents were non-Catholic and provided they were raised from infancy outside the Catholic Church.