Canon Law and Pastoral Theology of Marriage

Source: FSSPX News

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.

1. Doctrinal and Canonical Context         

1.1 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.”

1.2 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.

1.3 The 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.

1.4 The 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: Ҥ1. 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: 1o in danger of death; 2o 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.

1.5 The 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.

2. Historical Context

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.

2.1 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.

2.2 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.

2.3 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, Abp. 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.

2.4 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.

3. The Content of the Holy See's Letter

During the 1970s and 80s, relations between the Vatican and the SSPX were dominated by a logic of confrontation. Although it had been erected canonically on November 1, 1970, by Bishop Charrière, the work of Archbishop Lefebvre was deprived of that recognition by Bishop Mamie on May 6, 1975.

First consequence: the ordination of the seminarians was deemed illicit and the ordinands were threatened with suspension a divinis.

Second consequence: no diocesan bishop entrusted an apostolate to these priests who were reputedly irregular.

Third consequence: the ministry that these priests conducted was considered illicit.

3.1 A Logic of Acceptance  

Since the election of Pope Francis, the authorities of the Church have changed their approach. Without going over the past again, the Church authorities have gradually recognized the liceity and the validity of the ministry performed by the priests of the SSPX.

First, Confession: “Through my own disposition, I establish that those who during the Holy Year of Mercy approach these priests of the Fraternity of Saint Pius X to celebrate the Sacrament of Reconciliation shall validly and licitly receive the absolution of their sins” (Francis, Letter to Archbishop Fisichella, September 1, 2015).

These arrangements were extended beyond the Year of Mercy: “For the pastoral benefit of these faithful, and trusting in the good will of their priests to strive with God’s help for the recovery of full communion in the Catholic Church, I have personally decided to extend this faculty beyond the Jubilee Year, until further provisions are made” (Francis, Apostolic Letter Misericordia et miseria, November 20, 2016, no. 12).

Next, priestly ordination: “This summer it was confirmed that the Superior General can freely ordain the priests of the Society without having to ask permission from the local bishop” (Bishop Fellay, Interview with TV Libertés, January 29, 2017).

Finally, marriage: “Despite the objective persistence of the canonical irregularity in which for the time being the Society of Saint Pius X finds itself, the Holy Father, following a proposal by the Congregation for the Doctrine of the Faith and the Pontifical Commission Ecclesia Dei, has decided to authorize Local Ordinaries the possibility to grant faculties for the celebration of marriages of faithful who follow the pastoral activity of the Society” (Ecclesia Dei Commission, Letter to Ordinaries, March 27, 2017).

A logic of confrontation is giving way to a logic of acceptance in which the mere appearance of canonical irregularity is not enough to vitiate the ordinations performed by the bishops of the Society nor disqualify the ministry performed by its priests.

3.2 The Interventions of the Bishops

Wishing to see the diocesan bishops join in this step, the Ecclesia Dei Commission “has decided to authorize Local Ordinaries the possibility to grant faculties for the celebration of marriages of faithful who follow the pastoral activity of the Society” (ibid.). Two situations are considered:

“Insofar as possible, the Local Ordinary is to grant the delegation to assist at the marriage to a priest of the Diocese (or in any event, to a fully regular priest), such that the priest may receive the consent of the parties during the marriage rite, followed, in keeping with the liturgy of the Vetus ordo, by the celebration of Mass, which may be celebrated by a priest of the Society.

“Where the above is not possible, or if there are no priests in the Diocese able to receive the consent of the parties, the Ordinary may grant the necessary faculties to the priest of the Society who is also to celebrate the Holy Mass, reminding him of the duty to forward the relevant documents to the Diocesan Curia as soon as possible” (ibid.).

The role attributed to the diocesan bishops in the celebration of marriages by the faithful of the Society may cause astonishment or perhaps uneasiness because the arrangements made by Pope Francis concerning confession did not mention them. How can they be seen as anything but a bad omen for the works of Tradition while at the same time they are being lured with the possibility of a personal prelature?

In truth, Our Lord Jesus Christ founded the Church on the Apostles and the bishops who succeed them. To them the Lord entrusted the mission to teach, sanctify and govern (Mt 28:19). Ordinarily, the apostolate performed by priests who do not belong to the diocese also require the approval of the diocesan bishop. Because of its social dimension, marriage is more directly ordained to the common good of the Church than a sacrament with an individual significance such as Penance. Therefore the celebration of this sacrament is of capital interest to the one who is charged with the common good in the diocese. The recent measures concerning the sacraments administered by the bishops and the priests of the Society of Saint Pius X have a temporary character. If the works of Tradition were to be integrated someday into an episcopal structure, they would then receive from their prelate the authority to hear confessions and to assist at marriages.

3.3 An End to the Crisis?

In the wake of the Council, the adoption of the liturgical reform, and adherence to the conciliar novelties were viewed as criteria for catholicity. Unless they conformed to them, the faithful were doomed to second-class citizenship and the priests became targets of canonical censures.

In order to respond to the state of necessity that was thus created, a substitute apostolate was set up by the priests for the benefit of the faithful. This state of necessity started to recede with the Motu proprio dated July 7, 2007, in which Benedict XVI acknowledged that the Traditional Mass had never been abrogated.

The decisions by Pope Francis relating to the apostolate of the priests of the SSPX accentuate this trend. Logically, the state of necessity is destined to disappear.

Nevertheless, the crisis raging in the Church is far from finished. The question of the degree of authority of the conciliar documents has not been resolved. The responsibility of Vatican Council II in the acceleration of the crisis remains to be evaluated. The reform of the liturgical reform is not yet in sight. And the apparent authorization to admit divorced-and-remarried persons to Holy Communion under certain circumstances only increases the confusion.

To say that the state of necessity is tending to disappear does not mean that the crisis in the Church is over. The transmission of the faith is still problematic, the liturgy—mutilated, confession—neglected, Holy Communion—demeaned. Moreover, contraception is still practiced, preaching is weak, the priesthood and religious life are anemic. In this regard, the priests of the SSPX—whose apostolate is now recognized—have a position and a know-how that could prove to be invaluable in renewing the Christian spirit throughout the Church.