The Law on Marriage: Interritual Marriage Law Problems: English Translation and Differential Commentary [0.0]

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CODE OF ORIENTAL CANON LAW

THE IAW ON MARRIAGE INTERRTTUAL MARRIAGE

LAW PROBLEMS

ENGLISH TRANSLATION AND DIFFERENTIAL COMMENTARY

By VICTOR J. POSPISHIL J.C.D., Sc.Eccl.Orient.L.

Archeparchy of Philadelphia

UNIVERSE EDITIONS CHICAGO 1962

NIHIL OBSTAT. Chicago, 111., February 7,1962.

(Rev.) RAYMOND KOSTIUK, J.C.D. Censor Deputatus

IMPRIMATUR.

Chicago, Ill., February 7, 1962. t JAROSLAV GABRO

BISHOP OF CHICAGO, ILL.

Printed by ALLEGHENY-KISKI PRINTING CO. Freeport, Pennsylvania, U. S. A. 1962 46

TO

MY

MOTHER

ON HER SEVENTIETH BIRTHDAY

FOREWORD Numerous request for copies of our book Interritual Canon Law Problems in the United States and Canada, published in 1955, the entire edition of which was quite soon sold out, induced us to prepare this book, which is a revised and augmented version of the part on marriage law, and in which interritual canonical problems have received prominent consideration. While the scope of our book mentioned above was applied solely to legal relationships possible on the North American continent, the viewpoint of the present work is larger, and the principles discussed in it have more general validity in respect to other places and rites.

In the commentary to the Motu Proprio Crebrae Allatae we have not satisfied ourselves with a selection of canons but have given attention to them all, although we had to limit ourselves to the explication of those aspects in which Oriental marriage law differs from the marriage law of the Latin rite Code of Canon Law, and which are not commented at all or only cursorily in the commentaries on general marriage law. Each section is preceded by a survey of the contents of each canon. Along with that, the relationship of that canon to the CIC was noted by the sign If this sign is followed by the simple citation of a canon, as, e.g., ““ c. 1078 CIC”, this means that there is no change involved to be taken notice of. If is followed by “cf”, as, e.g., “= cf. c. 1078 CIC”, this signifies that some changes were made, and that the canons are not substantially identical. Whether the changes should be con­ sidered consequential can be found out from the subsequent commentary, and also by turning to the text of the canon and by comparing it with the text of the corresponding canon of the CIC. Whenever the difference needed explanation, such information was given following the canon or some of its paragraphs or numbers. Whenever Oriental canons had no parallel in the CIC, this was designated by “new” after the sign Canons not transferred from the CIC into the new codification were mentioned in that place of the canons of the Motu Proprio where they could have been expected. 6

To satisfy the growing interest in the law of the dissident Oriental Churches, reference to its principles was made in not a few instances, without attempting thoroughness, which was left to the scholarly works listed in the bibliography.

No diocesan chancery probably in the world has as much experience accumulated in the solution of problems of Oriental marriage law, es­ pecially in respect to interritual matrimonial relationships, as that of the Byzantine Rite Ukrainian Archeparchy of Philadelphia, Pennsylvania, U. S. A. We considered it therefore useful to quote extensively canons on marriage law from the Statutes promulgated by the First Archeparchial Convocation celebrated in Philadelphia in 1959.

Being destined rather for the use of the pastoral clergy, scholarly aims had to cede consideration to more practical reflections, the more so because the work on this book had to share with pastoral duties the time available to the author. However, the list of books and articles in the bibliography will enable the user of this book to reach its sources.

Corrections and suggestions are requested and will be sincerely ap­ preciated. Gratitude is hereby expressed to the many priests from all continents who have furnished the author with suggestions and cases, which in turn have made it possible to revise, amend and augment the present work.

Easter 1962, Ford City, Pa., 514 Ninth Street Victor J. Pospishil

7

CONTENTS

GENERAL INTRODUCTION FOREWORD ............................................................................................ BIBLIOGRAPHY .................................................................................... THE CODIFICATION OF THE CANON LAW OF THE ORIEN­ TAL CHURCHES (The Motu Propria Crebrae Allatae, Sol­ licitudinem Nostram, Postquam Apostolics, Cleri Sanctitati .... Rites in general ............................................................................ ORIENTAL RITE CATHOLICS AND THEIR HIERARCHICAL SUBDIVISIONS THROUGHOUT THE WORLD.................... ORIENTAL RITE CATHOLICS IN UNITED STATES & CANADA THE RUTHENIAN (UKRAINIAN) GROUP...................................... ACQUISITION AND CHANGE OF RITE: ACQUISITION OF RITE (Acquisition of Rite by Adults Acquisition of Rite by Children) ................................................. TRANSFER OF RITE (Transfer Between Rites - Transfer Between Disciplines of the Same Rite - Transfer of Wife to Rite of Husband - Conversion of Oriental Dissidents, Pro­ testants and Infidels - Formal Requirements)..............................

33

THE MOTU PROPRIO CREBRAE ALLATAE··

37

PRELIMINARY CONCEPTS (cc.1-5) 1. Nature of Marriage (c.l)..................................................... 39 2. Ends and Purposes and Essential Properties of Marriage (c.2) 3. Special Legal Protection of Marriage (c.3).............................. 4. Definitions of Terms of Marriage Law (c.4).......................... S, Competence of Church and State Over Marriage (c.5)........ BETROTHAL (cc.6-7) .......................................................................... INSTRUCTION OF THE FAITHFUL IN MARRIAGE LAW (c.8)

40 40 41 42 44 45

6 13 17 19

21 24 26 29

CHAPTER I: WHAT PRECEDES THE MARRIAGES CON­ TRACT, ESPECIALLY THE MARRIAGE BANNS (cc.9-24) PRELIMINARY INVESTIGATION (cc.9-10): .................................... PROOF OF BAPTISM (c.ll #1) ....................................................... PROOF OF CONFIRMATION (c.ll #2).......................................... THE MARRIAGE BANNS (cc.12-16,18).............................................. OBLIGATION TO REVEAL IMPEDIMENTS (c.17)...................... INVESTIGATION OF OTHER PASTORS (c.19).............................. DECISION TO ASSIST AT MARRIAGE (c.20).................................. PROCEDURE WHEN IMPEDIMENT DISCOVERED (c.21) .... ASSISTANCE AT MARRIAGES OF VAGI (c.22).............................. INSTRUCTION OF PARTIES, RECEPTION OF SACRAMENTS (c.23) ..................................................................... MARRIAGES OF MINORS (c.24) ........................................................

8

46 50 52 53 55 56 57 57 58

58 59

CHAPTER H. MATRIMONIAL IMPEDIMENTS IN GENERAL (cc.25-30): THE RIGHT TO MARRIAGE (c.25)...................................................... PROHIBITIVE AND DIRIMENT IMPEDIMENTS (c.26) .......... PUBLIC AND OCCULT IMPEDIMENTS (c.27)..............................

60 60 61

DISPENSATION OF IMPEDIMENTS (c.3L47)s MAJOR AND MINOR IMPEDIMENTS (c.31) .............................. 64 ORDINARY POWER OF DISPENSATION BELOW THE ROMAN PONTIFF (c.32) ....................................................................... 65 1. LOCAL HIERARCHS:...................................................................... 66 The Local Hierarch as Dispensator (General Survey).............. 66 Limits of the Local Ordinary’s Power of Dispensation.............. 67 2. PATRIARCHS (Limits of the Patriarch’s Ordinary Power of Dispensation) ............................................................................. 69 3. ORDINARY COMPETENT FOR DISPENSATIONS IF THE PAR­ TIES BELONG TO DIFFERENT RITES AND DIOCESES .. 72 4. LATIN RITE ORDINARIES AS DISPENSATORS FOR ORIENTAL RITE FAITHFUL ............................................ 73 5. CAN DISSIDENT ORIENTAL HIERARCHS GRANT DISPENSATIONS? ................................................................... 75 POWER OF DISPENSATION IN DANGER OF DEATH (cc.33-34) 76 POWER OF DISPENSATION IN CASE OF URGENCY (c.35) .... 77 CANON 35 CREBRAE ALLATAE AND CANON 81 C.I.C............. 78 RECORDING OF DISPENSATION (cc.36-37) .................................. 79 CONCURRENCE OF POWER OF DISPENSATION (cc.38-40) .. 80 IMPLICIT LEGITIMATION, IMPLICIT DISPENSATION, AND THE IMPEDIMENTS OF CONSANGUINITY AND AFFINITY (cc.41-43) ....................................................................... 83 DISPENSATION FROM MINOR IMPEDIMENTS (c.44).............. 82 EXECUTION, FEE, AND FORM OF RESCRIPT (cc.45-47)........ 83

CHAPTER HI: PROHIBITIVE IMPEDIMENTS (cc.48-56): SIMPLE VOWS (c.48) ............................................................................. 84 GUARDIANSHIP AND ADOPTION (c.49) ...................................... 85 MIXED RELIGION AND MARRIAGES WITH OBJECTIONABLE CATHOLICS (cc.50-56) .......................................................... 86

CHAPTER TVs DIRIMENT IMPEDIMENTS (cc.57-71): NONAGE (c.57) ....................................................................................... IMPOTENCE (c.58) ................................................................................. BOND OF PREVIOUS MARRIAGE (c.59) ........................................ DISPARITY OF WORSHIP (cc.60-61)................................................. 1. DIFFERENCE BETWEEN CREBRAE ALLATAE AND THE LATIN CODE .............................................................. 91

88 88 89 91

9

2. DISPENSATION FROM THE IMPEDIMENT..................... 93 3. CHANGE OF RITE OF NON-CATHOLICS AND THE IMPEDIMENT OF DISPARITY OF WORSHIP: (1) General Considerations .............................................................. 94 (2) Transfer - Oriental Dissident Denomination to Protestantism 95 (3) Transfer - Protestantism to Oriental Dissident Denomination 95 (4) Transfer Between An Oriental Dissident Denomination and Protestantism as Affecting Offspring.................................... 98 SACRED ORDERS (c.62): 1. CELIBACY IN THE ORIENTAL CHURCHES.................. 99 2. ORIENTAL RITE CLERGY IN THE UNITED STATES .. 102 3. ORIENTAL RITE CLERGY IN LATIN RITE DIOCESES .. 103 4. ORDINATION BY DISSIDENT BISHOPS .......................... 104 SOLEMN OR MAJOR PROFESSION (c.63): 1. THE LAW ON ORIENTAL RELIGIOUS.............................. 106 2. LEGAL CHARACTERISTICS OF ORIENT. MONACHISM 109 3. RELIGIOUS PROFESSION .................................................... 110 ABDUCTION (c.64)................................................................................ Ill CRIME (c.65)........................................................................................... Ill CONSANGUINITY (c.66) .................................. 112 AFFINITY (cc.67, 68):............................................................................ 115 1. THREE SPECIES OF AFFINITY............................................ 116 2. NON-CATHOLIC ORIENTALS AND THE VARIOUS SPECIES OF AFFINITY....................................................... 120 3. INTERRITUAL DIFFERENCES CONCERNING CONSANGUINITY AND AFFINITY................................. 121 PUBLIC PROPRIETY (c.69) ................................................................. 124 SPIRITUAL RELATIONSHIP (c.70)..................................................... 124 GUARDIANSHIP AND ADOPTION (c.71)................................... 125

CHAPTER Vs MATRIMONIAL CONSENT (cc.72-84)s NECESSITY AND DEFINITION (c.72)............................................. REQUISITE KNOWLEDGE (c.73)....................................................... ERROR (cc.74, 75)................................................................................. KNOWLEDGE OR BELIEF REGARDING THE VALIDITY OF MARRIAGE (c.76).................................................................... QUALITY OF CONSENT (c.77)........................................................... FORCE AND GRAVE FEAR (c.78)..................................................... EXPRESSION OF CONSENT (c.79)................................................... MARRIAGE BY PROXY (cc.80-82)....................................................... CONDITIONAL CONSENT (c.83) ................................................... DURATION OF CONSENT (c.84) ..................................................... 10

126 126 127

127 127 128 129 129 131 132

CHAPTER VI: FORM OF MARRIAGE (cc.85-92): REQUISITES OF VALID ASSISTANCE (c.85) .............................. 1. MARRIAGE FORM IN GENERAL........................................ 2. THE LITURGICAL BLESSING AS ESSENTIAL ELE­ MENT OF THE FORM............................................................. 3. NATURE OF LITURGICAL BLESSING.............................. 4. LITURGICAL BLESSING & MIXED RITE MARRIAGES.. 5. DISPENSATION OF MARRIAGE FORM............................

CLERICS AUTHORIZED TO ASSIST AT MARRIAGE (c.86 # 1): 1. GENERAL CONSIDERATIONS .............................................. 2. THE PLACE OF ASSISTANCE AS AN ESSENTIAL ELEMENT OF THE MARRIAGE FORM............................ 3. MODO SINT SUI RITUS........................................................... 4. ASSISTANCE AT MARRIAGE OF NON-SUBJECT CATHOLICS WITH BAPTIZED NON-CATHOLICS..... 145 5. MARRIAGES ASSISTED BY FALLEN-AWAY PRIESTS ..

133 134 135 136 138 138

139 140 142

147

ASSISTANCE AT MARRIAGE OF CATHOLICS OF DIFFERENT RITES (c.86 ## 2-5): ........................................................... 152 1. LATIN RITE ORDINARIES AND PASTORS AND MAR­ RIAGES OF ORIENTAL RITE CATHOLICS...................... 152 2. SUPPLETORY JURISDICTION OVER ORIENTAL CATHO­ LICS IN TERRITORY WITH MULTIPLE HIERARCHY .. 155 3. MARRIAGES OF FAITHFUL UNDER JURISDICTION OF A DIFFERENT RITE: (1) General Principle......................................................................... 157 (2) The Marriages of Faithful and the Hierarch of a Different Rite (Episcopal Delegate - Pastors of Their Rite - Special Vicar General)...................................................................... 158 DELEGATION OF THE FACULTY OF ASSISTANCE (c.87) .... 160

REQUISITES FOR LAWFUL ASSISTANCE (c.88): 1. GENERAL CONSIDERATIONS.............................................. 2. THE PASTOR COMPETENT FOR LAWFUL ASSISTANCE I) General Considerations ............................................................. 2) Marriages of Parties of the Same Rite...................................... 3) Marriages of Catholics with Non-Catholics............................ (4) Mixed Rite Marriages ...............................................................

S

163

164 165 167 167

THE EXTRAORDINARY MARRIAGE FORM (c.89): 1. GENERAL CONSIDERATIONS ........................................ 173 2. SOVIET MARRIAGES............................................................... 173

PERSONS SUBJECT TO THE MARRIAGE FORM (c.90): 1. CONVERSION AND MARRIAGE FORM .................. 175 2. CATHOLIC OR NON-CATHOLIC ORIENTALS?.............. 178 3. AB ACATHOLICIS NATI (c.1099 # 2 CIC - NE TEMERE) 180 11

4. MARRIAGES OF CATHOLIC ORIENTALS CONTRACTED OUTSIDE THE CHURCH BEFORE MAY 2, 1949: (1) Preliminary Considerations...................................................... 182 (2) Marriages contracted in the United States and Canada .... 183 (3) Marriages Contracted Outside the United States and Canada 185 (4) Clandestine Marriages of Ukrainians - Ruthenians Con­ tracted in Europe Prior to May 2,1949 (Tametsi - Ne Temere - Form of CIC - Must Such Marriage be Convalidate?) .. 186 THE LITURGICAL RITE OF MARRIAGE (c.91): 1. LITURGICAL FORMULARIES OF ORIENTAL RITES .. 190 2. CANON LAW ON THE LITURGICAL FORM: (1) Curtailment of the Liturgical Form......................................... 191 (2) The Liturgical Form of Mixed Marriages.............................. 192 (3) Marriage Blessing Separated from Marriage Assistance .... 193 (4) Nuptial Divine Liturgy............................................................ 194 THE RECORDING OF MARRIAGE (c.92)....................................... 194

CHAPTER VH: THE SECRET MARRIAGE (cc.93-96) DEFINITION, OBLIGATION TO SECRECY, RECORDING

196

CHAPTER VIH: TIME AND PLACE OF THE MARRIAGE RITE (cc.97,98) DAYS ON WHICH THE MARRIAGE RITE MAY BE PERFORMED (c.97) ............................................................... 197 PLACE OF MARRIAGE RITE (c.98)........................................... 199

CHAPTER IX: THE EFFECTS OF MARRIAGE (cc.98-106): PRIMARY EFFECTS, MUTUAL RIGHTS AND DUTIES, WIFE ACQUIRES STATUS OF HUSBAND, DUTIES OF PARENTS TOWARDS CHILDREN (cc.99-102) ........................ 200 LEGITIMACY OF CHILDREN (cc.103-106) ............................ 201

CHAPTER X: THE SEPARATION OF THE SPOUSES: ARTICLE ONE: DISSOLUTION OF THE BOND cc.107-116) 202 ARTICLE TWO: SEPARATION FROM BED, TABLE AND HABITATION (cc.117-121)......................................................... 206

CHAPTER XI: CONVALIDATION OF MARRIAGE: ARTICLE ONE: SIMPLE CONVALIDATION (cc.122-126) .. 208 ARTICLE TWO: THE SANATIO IN RADICE (cc.127-130) .. 211

HAPTER XH: SUCCEEDING MARRIAGES (c.131) .... 212 LPHABETICAL INDEX .....................................

213

BIBLIOGRAPHY Because of the limited scope of this book, directed chiefly to the pastoral clergy, reference to the works listed below was made only in specific instances.

ABBREVIATIONS — Acta Apostolicae Sedis, Commentarium Officiale, Rome (since 1909). A.S.S. — Acta Sanctae Sedis, 41 vols., Rome, 1865 - 1908. CrAU = Motu proprio Crebrae Allatae, AAS, March 12, 1949, 89-119. CIO — Codex luris Canonici Pii X Pontificis Maximi iussu digestum Benedicti Papae XV auctoritate promulgatus, Vatican, 1933. AAS

BOOKS AND ARTICLES Augustine, Charles, O.S.B., The Canonical and Civil Status of Catholic Parishes in the United States, St. Louis, Mo. (B. Herder Book Co.), 1926. Bastnagel, C.V., “Undelegated Assistance at Marriage”, The Jurist, 1960, 55-62. Blanchard, Carlos, “Documentary Evidence in Informal Marriage Cases”, The Jurist, 1954, 453-463. Boudreaux, Warren L., The “ab acatholicis natf of Canon 1099, # 2. The Catholic University of America Canon Law Studies, Washington, The Catholic University of America Press, 1946. Bouscaren, T. Lincoln, The Canon Law Digest, Milwaukee, Bruce, I. vol. 1934; II. vol. 1943; III. vol. 1954; IV. vol. 1958. Bouscaren, T. Lincoln, S.J., and Adam C. Ellis, S.J., Canon Law, A Text and Commentary, Milwaukee, Bruce, 2nd Ed., 1951. Cappello, Felix M., S.J., De Sacramentis, Vol. I. De Sacramentis in genere; De Baptismo, Confirmatione et Eucharistia, Ed. 4-a, Torino, 1945. De Sacramentis, Vol. II: De Poenitentia, Torino, 1944. De Sacramentis, Vol. VI: De Matrimonio, Torino, 1947. Cicognani, Amleto, Commentarium ad Librum Primum Codicis luris Canonici, recognitum et auctum a Dino Staffa, 2 vols., Rome, 1939, 1942. 13

Collectanea S. Congregationis de Propaganda Fide, 2 vols., Rome, 1907. Conway, J.D., “A Comparative Glance at the Latin and the Oriental Marriage Discipline,” The Jurist, 1949, 316-324. Coussa, Aeacius, B.A., Epitome Praelectionum de lure Ecclesiastico Orientali, Vol. I. Grottaferrata. 1948. Vol. II. De Monachis (etc.), Venice, 1941. Vol. III. De Matrimonio, Rome, Pontificium Institutum Utriusque luris, 1950. "An Orientales schismatici legibus matrimonialibus Ecclesiae Lat­ inae teneantur,” Apollinaris, 1938, 121-125. Dausend, Hugo, Das interrituelle Recht im Codex luris Canonici, Pader­ born, (Schoningh), 1939. De Clercq, C., "De ritu et adscriptione ritui apud Orientales Catholicos,” Ephemerides Liturgicae, 1932, 473-480. Un nouveau droit canonique oriental du marriage. Extract 480, Archives d’histoire du droit oriental, t.IV, Paris, 1949. Diederichs, Michael F., The Jurisdiction of the Latin Ordinaries over their Oriental Subjects, The Catholic University of America Canon Law Studies, The Catholic University of America Press, Washington, D.C., 1946. Disparity of Cult and Determination of Rite, The Jurist, 1960, 218219. Duslde, John A., The Canonical Status of Orientals in the United States, The Catholic University of America Canon Law Studies, The Catholic University of America Press, Washington, D.C., 1928. Englert, C.C., C.SS.R., "Orientals and the Parish Priest,” The Homiletic and Pastoral Review, 1941, 35-39. Galtier, F., S.J., Le Marriage, Discipline Orientale et discipline Occiden­ tale, La Reforme du 2 Mai 1949, Universite’ St. Joseph de Beyrouth, Faculte’ de Theologie, Beyrouth, 1950. Gulovich, Stephen, "Matrimonial Laws of the Eastern Catholic Churches”, The Jurist, 1944, 200-245. “Byzantine Slavonic Catholics and the Latin Clergy,” The Homiletic and Pastoral Review, 1945, 517-527, 586-596. Herman, Emil, S.J., "De Ritu in lure Canonico,” Orientalia Christiana, 1933, 96-158. “Adnotationes ad M. P. Crebrae Allatae Sunt,” Periodica de Re Morali Canonica Liturgica, Rome, 1949, 43-125. “Adnotationes in responsa”, Monitor Ecclesiasticus, 1953, 579. “Celibat des clercs”, IL en droit oriental, in Dictionnaire du Droit Canonique, IH. v., column 155. Jaros, J., “Decretum pro spirituali administratione Ordinariatuum GraecoRuthenorum in Foederatis Civitatibus Americae Septentrionalis,” Apollinaris, 1942, 28-32. Komar, M., “The Marriage Law of the Eastern Church” (Ukrainian), Logos, 1950, 33-42, 119-122, 186-193, 264-268; 1951, 52-58, 174-179, 254-261; 1952, 20-26, 186-193, 252-259; 1953, 22-28, 92-99, 169-177. 14

Ledit, Joseph, S.J., Praelectiones de lure Canonico Orientali, L’ Univer­ sité’ Laval, Quebec, 1943. Mac Kenzie, Eric, The Canonical Status of the Ruthenian Rite in the United States, The Catholic University of America, Washington, D.C., 1919. Marbach, Joseph Francis, Marriage Legislation for the Catholics of the Oriental Rites in the United States and Canada, The Catholic University of America Canon Law Studies, The Catholic University of America Press, Washington, D.C., 1946. “Some Marriage Questions Concerning Orientals in this Country and in Canada,” The Jurist, 1949, 17-49. “The Recent Instruction of the Sacred Consistorial Congregation Regarding Military Ordinariates,” Reprint from The Jurist, XII, No. 2, April 1952. Maroto, P., “De regendis fidelibus diversorum rituum permixtim in eodem territorio degentibus,” Apollinaris, 1933, 179-184. Mastsuh, Basil, Ecclesiastical Marriage Law (Ukrainian), Peremyshl, 1910. Moersdorf, K., “Streiflichter zum neuen Verfassungsrecht der Ostkirche,” Muenchener Theologische Zeitschrift, 1957, 235 ss. Noldin - Schmitt - Heinzel, Summa Theologiae Moralis, vol. Ill, Innsbruck, 1955. Petrani, Alexius, De Relatione luridica inter Diversos Ritus in Ecclesia Catholica, Torino (Marietti), 1930. “Fideles ad ritus orientales pertinentes,” Apollinaris, 1939, 94-102. Ploechl, Willibald, “Non-solemn baptism and determination of rite,” The Jurist, 1945, 359-388. Quinquennial faculties extended by the S. Congregation for the Oriental Church to Latin Ordinaries,” The Jurist, 1946, 73-76. “The Change of Rite in matrimonio ineundo vel durante,” The Jurist, 1946, 275-304. Pospishil, Victor J., Interritual Canon Law Problems in the United States and Canada, Chesapeake City, Md., 1955. Code of Oriental Canon Law. The Law on Persons: Rites - Persons in general - Clergy and Hierarchy - Monks and Religious - Laity; Ford City, Pa., 1960. Pujol, Clemens, S.J., De Religiosis Orientalibus Ad Normam luris Vigentis, Rome, 1957. Quigley, Joseph A.M., “The Extraordinary Minister of the Sacrament of Confirmation,” Reprint from The Jurist, XIV, No. 2, April 1954. Raes, A., S.J., Introductio in Liturgiam Orientalem, Rome, 1947. Le Mariage, sa celebration et sa spiritualité’ dans les Eglises d’Orient, Editions de Chevetogne, 1958. Rezac, I., SJ., “De nova legislatione matrimoniali,” Orientalia Christiana Periodica, Vol. XX, 1954, 371-405. Roberts, Rufus P., S.J., Matrimonial Legislation in Latin and Oriental Canon Law, The Newman Press, Westminster, Md., 1961. 15

Sadlowsld, E., Dissolution of Marriages Celebrated coram Ecclesia with a Dispensation from the Impediment of Disparity of Cult by the Supreme Authority of the Church in Favor of the Faith, Washington, D.C., The Canon Law Society of America, 1959. Schudlo, Michael, C.SS.R., “To which Rite must our dissident brethren and the Eastern heretics return?” (Ukrainian), Logos (Meadowvale, Ont., Canada), October - December 1954, 277-279. Sipos, Stephanus, “Possintne Latini coram parocho oriental! matrimonium celebrare?”, Jus Pontificium, 1939, 97-99. Souam, R., A.A., Praxis Missionarii in Oriente servata, Paris, 1911. Staffa, Dino, “De transitu ad alium Ritum,” Apollinaris, 1940, 182-189. Statutes of the Archeparchy of Philadelphia, enacted and promulgated by the Most Reverend Metropolitan Constantine Bohachevsky, S.T.D., Archbishop of Philadephia, Philadelphia, Pa., 1959. Szentinnai, Alexander, “The Legal Language of the New Canon Law of the Oriental Churches”, The Jurist, 1962, 39-70. Trivisonno, Michael, “Chancery Matters Involving Different Rites”, The Jurist, 1961, 263-270. Wojnar, Meletius, O.S.B.M., “The Code of Oriental Canon Law De Ritibus Orientalibus and De Personis”, The Jurist, 1959, 212-245; 277-299; 413-464. Wuyts, A., S.J., “Le nouveau droit matrimonial des Orientaux,” Nouvelle Revue Theologique, Sept.-Oct. 1949, 829-839.

16

THE CODIFICATION OF THE CANON LAW

OF THE ORIENTAL CHURCHES The necessity of a unified Code of Oriental canon law, and in general of a thorough revision of the entire legislation, was recognized as early as in the last century. The successful codification of the law of the Latin rite Church induced Pope Pius XI to begin in 1929 the preparation for such a codification. The commission of cardinals appointed to this end was headed by the great jurist Cardinal Pietro Gasparri, while the important task of co-ordinating the efforts of the co-workers was organ­ ized by the Secretary of the Commission, then Assessor of the Sacred Congregation for the Oriental Church, and at the present time the Secretary of State, Cardinal Amleto Giovanni Cicognani, professor at the School of Canon Law of the Lateran University. The work of codi­ fication was continued by Cardinal Acacius Coussa, a Basilian monk of the Melkites of the Byzantine rite, professor of Oriental Canon law at the same University, author of several text books on Oriental canon law, and presently Secretary of the Sacred Congregation for the Oriental Church, as well as Secretary of the Commission for the Codification of the Oriental Canon Law. The difficult task of compiling the whole code is not yet terminated. However, because of the urgent need of some communities of Oriental rite, parts of the Oriental law have been promulgated in the form of separate motu proprios, a way of introducing the new law used also in the Latin rite Church prior to the promulgation of the CIC. Four motu proprios have been so far promulgated: 1. The Motu Proprio Crebrae A 11 a t a e

From a practical standpoint, this is the most important legislative act. It contains the matrimonial law of the Oriental Church, and was promulgated February 22, 1949 (AAS, 1949, 89-119), taking effect from the 2nd of May of the same year. As a whole, the motu proprio follows the CIC. It differs from it in several features: (1) Whatever was different in the law of the Eastern Churches had to be considered at every step of the codification. (2) The latinity received more attention than did that of the CIC, and the termi­ nology was corrected in some places (cf. Szentirmai, op. cit.). (3) Due consideration was given to the authoritative interpretations issued by the respective papal commissions since the promulgation of the CIC. (4) We find in several places additions which also clarify the meaning of the corresponding text of the CIC. Such additions and corrections, though formally enacted only for Oriental Catholics, concern materially also 17

Latin rite Catholics, because they influence the interpretation of the corresponding passages of the CIC, clarifying disputed interpretations. Crebrae Allatae establishes for the first time a common matrimonial law for all Orientals. At present, however, in evaluating marriages entered into before May 2, 1949, we are still obliged to go back to the former matrimonial legislation of the various Oriental rites. Because of the plur­ ality of rites and their subgroups, independent from each other in legis­ lative matters, this is often an arduous task. The present book contains a translation of all canons of CrAll and a commentary of those legal aspects which differ from the marriage law contained in CIC. 2. The Motu Proprio Sollicitudinem Nostram

This motu proprio was promulgated January 6, 1950 (AAS, 1950, 5120), and went into effect January 6, 1951. It contains the procedural law in 576 canons, a larger number than the 446 canons (cc. 1552-1998) of the CIC. A French translation with a brief commentary was published by F. Galtier, S. J. (Code Oriental de Procedure Ecclesiastique. Traduc­ tion annotee, Beyrouth, 1951). 3. The Motu Proprio P o s t q u a m Apostolicis

It was promulgated February 9,1952, (AAS, 1952, 65-150), and went into effect November 21, 1952. It concerns the following legal matters: (1) Monks and Other Religious (cc.1-231 = cc.487-681 CIC). (2) Temporal Property of the Church (cc.232-301 = cc.1495-1551

(3) A Glossary of Canonical Terms (cc.302-335). In regard to the section on the temporal goods of the Church, it must be said that it is the part which deviates least from the CIC. The Law on Religious had, naturally, to take into consideration the peculiarities of the Oriental Churches, which have preserved many features of the early monachism of the East. The law on the religious has been exhaustively treated in a commentary by Clemens Pujol, S.J., De Religiosis Orientalibus Ad Norman luris Vigentis, Rome, 1957. 4. The Motu Proprio Cleri S a n c t i t a t i

It was promulgated June 11,1957 (AAS, 1957, 433-603) to take legal effect from March 25,1958. With this most recent statute the whole Law on Persons has been published. The motu proprio contains, after an in­ troductory section on the Eastern Rites (cc.1-15). the general norms con­ cerning all physical and moral persons (cc.16-37), the law on clerics in general and in particular (cc.38-526), and on the laity (cc.527-558). The greater number of canons (558) in comparison with the CIC (442) was necessitated by the insertion of three chapters on the patriarchs, major archbishops, and their synods (136 canons). The contents of this motu proprio and the part on the law of the religious of the motu proprio Postquam Apostolicis were the subject of a book by this author, namely: Victor J. Pospishil, Code of Oriental Canon Law: The Law on Persons, Ford City, Pa., 1960 (XVI, 345).

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RITES IN GENERAL Various groups can be distinguished within the church. If we apply liturgical criteria and group the faithful in accordance with the peculiar liturgical formularies, usages, ceremonies, etc., they make use in their worship, the division will be according to liturgical rites. However, we are here primarily concerned with canonical divisions of the Church, that is, with groups of the faithful who are governed by the same rules and regulations of canon law, and which, being peculiar to them, dis­ tinguish them from the faithful who have, at least in some matters, dif­ ferent canonical rules and regulations. Since these groups may be differentiated from each other not only by a peculiar system of canon law but also by peculiar forms of worship the term rite is often used in a liturgical sense even where it denotes a canonical division. This is the cause of much confusion. If subdivisions exist within one of these great liturgical rites, i.e., groups of faithful who have some particular canonical order, and perhaps their own hierarchical organization, which sets them apart from other groups of faithful belonging to the same rite, we call such a group a discipline, although it could be called in some instances with equal jus­ tification a rite. Further subdivisions of a discipline are called by us jurisdictions. On the American continent, for instance, a division exists in respect to the Ruthenian discipline of the Byzantine rite, the faithful of which discipline is divided into the two jurisdictions of the Ukrain­ ian Ecclesiastical Province of Philadelphia, and the Apostolic Exarchy of Pittsburgh. The best definition of the term rite from the canonical standpoint was given by Emil Herman, S.J. (De conceptu “ritus”, p. 339): "A rite is a group of faithful who are governed by laws and customs of their own, based on ancient traditions, not only in regard to liturgical matters, but also in respect to the canonical order, and which group is acknowledged by the Holy See as autonomous and distinct from others” Rite, as referring to forms of worship, designates the whole system of ceremonies, texts, patterns, etc., of divine services of a certain group of faithful. Parallel with the development of a distinct liturgical rite, a particular Church often evolved a distinct legal system also; thus die term rite is applied to the sum of legal regulations peculiar to that par­ ticular Church. All liturgical rites do not possess a distinct system of canon law. The Latin rite Church is the only one having but one system of law, repre­

19

sented by the Code of Canon Law, although, as far as the liturgical rite is concerned, the Latin rite Church is divided in several groups: the Roman, Ambrosian, Mozarabic, Carthusian, Dominican rite, the Rite of Lyons, and others. Among Oriental rites we find Churches with the same liturgical forms but somewhat different legal systems, as the various disciplines within the Byzantine rite, although these differences cede more ond more to the unifying force of the recent codification of the Oriental canon law. Language of worship is of no importance at all in defining a rite. There are some Latin rite Catholics who use the Roman rite but in the Old-Slavonic language, and several Oriental rites of disparate origin make use of the same language, Greek, Arabic, English. The latest designation of rite is to be found in c.303 # 1 of Postquam Apostolicis, where five Oriental rites are enumerated: “The Oriental rites which the canons treat are the Alexandrian, the Antiochene, that of Constantinople, the Chaldean and the Armen­ ian, and other rites which the Church either expressly or tacitly re­ cognizes as sui juris.”

From this enumeration of rites have been omitted groups of Orien­ tal Catholics such as the Copts, Ethiopians, Maronites, Malabarians, and others, who very often have been called and treated in documents of the Holy See as autonomous rites. This intentional omission was the reason why we in our book Interritual Canon Law Problems in the United States and Canada (p. 12) expressed the opinion that these subdivisions of the five original rites should not be considered rites themselves. How­ ever, reappraisal of the use of term ritus, which is a sign of the legislators intention, especially in many places of Cleri Sanctitati, induced us to admit that this does not apply in all instances. While, e. g., in the sec­ tion concerning the interritual relationship, especially the transfer from one rite to another, the term rite can more strictly be conceded only to the five original rites, in other sections it is used in such a way as to be applicable to the last subdivision of a rite. It seems that the enumeration of c.303 # 1 of five rites is merely a historic reminiscence, with no practical consequences. The new codification has not removed the undefinite and ambiguous use of the term rite encountered in so many legislative documents prior to the codification. We are again back to the definition of E. Herman, S.J., the last part of which, as the most signifi­ cant for our purposes, was taken into c.303 # 1, that a rite is a "group acknowledged by the Holy See as autonomous and distinct from others.”

We continue therefore to speak, e.g., of the Byzantine rite as an aut­ onomous group, but at the same time we apply this criterion also to the Melkite Patriarchate, which is only a part of the original Byzantine rite. We might find several autonomous groups within a rite which were separated hierarchically from each other for centuries, but which were often treated as one unit by the Holy See in legislative matters. This was the case with the so-called Ruthenians, who comprise Ukrainian, Subcarpathian, Hungarian and Croatian dioceses. Should we apply the term rite to them as a whole, or directly to each part, or to the whole as well as to each part? 20

Although the number of rites will vary in accordance with the cri­ teria adopted by various authors, we can say that this problem will lose its importance with the progressing codification of Oriental canon law. It is true that there are more matters in Oriental canon law relegated to particular law than in the Latin rite canon law, but just as we do not consider parts of the Western Church to be separate rites because they have their own particular law, so likewise we should not apply the cat­ egory of rite to every group of the Oriental Church. The codification and the creation of a common code for all Oriental Churches is at the same time also an unification of law, which implies also the elimination of certain differences among the rites, and a reservation of the canonical term “rite” to the more important subdivisions of the five liturgical rites, in addition to some splinter groups which have served their ties with their Mother Church in the East for many centuries.

ORIENTAL RITE CATHOLICS

AND THEIR HIERARCHICAL SUBDIVISIONS THROUGHOUT THE WORLD There are 140 ecclesiastical districts of various hierarchical rank, which can be classified in the following manner: Six patriarchs, besides being the heads of their respective Churches or patriarchates, administer each his own patriarchal diocese. Nine minor administrative units are ruled by the patriarchs with the help of patri­ archal vicars, usually titular bishops. The title of metropolitan is worn by 23 bishops, of whom only six have suffragan bishops, i.e., are heads of ecclesiastical provinces; the rest are titular metropolitans. Eight bishops of dioceses are distinguished by the title of archbishop without being metropolitans. Simple residential bishops are numbered 53, in addition to 13 apos­ tolic exarchs of episcopal rank, counting here also Latin rite bishops who have such jurisdiction over Oriental rite Catholics. There are also two ordinariates, four apostolic administrators and visitors, and one exarchical monastery (abbey nullius). I. THE RITE OF ALEXANDRIA

The Latin rite Archbishops of Paris (France, Rio de Janeiro (Brazil) and Buenos Aires (Argentina) are the ordinaries for all Oriental rite faith­ ful in their nations.

1. The Coptic Patriarchate of Alexandria (Egypt) consists of four dioceses; the patriarchal diocese, and three others in Assiut, Minya,and Thebe (Luqsor). 2. The Ethiopian hierarchy consists of the Archdiocese of Addis Abeba (Ethiopia) and the dioceses of Adigrat and Asmara. 21

II. THE RITE OF ANTIOCH (WEST SYRIAN RITE) 1. The Syrian Patriarchate of Antioch comprises eight dioceses: the patriarchal diocese, the metropolitan dioceses of Aleppo, Bagdad, Da­ mascus, Emesa and Mossul, and the (simple) dioceses of Hassatche and Mardin (Amida). The patriarch has in addition three vicars with episcopal rank in Egypt, Lebanon and Palestine. 2. The Maronite Patriarchate of Antioch has ten dioceses: the pat­ riarchal diocese, the metropolitan diocese of Beyrouth, and the (simple) bishops of Aleppo, Baalbek, Cairo, Cyprus, Damascus, ‘ Gibail-Betrun, Saida-Tyre, Sarba, Tripolis (Lebanon). There is also an Apostolic Ad­ ministration of Laodicea for the Maronites. The Maronites of Brazil are under the jurisdiction of the Latin rite Archbishop of Rio de Janeiro, who is represented by a vicar general of that rite. 3. The Malankarian Ecclesiastical Province in India has one metro­ politan in Trivandrum and a bishop in Tiruvalla. IH. THE RITE OF CONSTANTINOPLE OR BYZANTINE RITE 1. The Melkite Patriarchate of Antioch, Alexandria and Jerusalem is composed of the following administrative units: the patriarchal diocese; bishops with the title of metropolitans in Aleppo, Beyrouth (and Gibail), Bosra (and Haurun), Damascus, Emesa, Tyre. The Melkites in the Jordinian Kingdom are under the Archbishop of Petra and Philadelphia. There are bishops in Akka, Baalbek, Baniyas, Saida, Tripolis (Lebanon), Zahle. The patriarch has also vicars in Alexandria, Cairo, Jerusalem and Constantinople. The Melkites of Brazil are governed by a bishop of their rite in his capacity of vicar general of the Latin rite Archbishop of Rio de Janeiro. 2. The dioceses of the Ukrainians and others of the Ruthenian discipline: (1) Ukraine (formerly Galicia): the Metropolitan-Archbishop of Lwiw had two suffragan bishops in Peremyshl and Stanislaviw. There was also an Apostolic Exarchy for the Ukrainians of the Lemkiwshchyna. (2) The Ecclesiastical Province of Canada is composed of the Metropolitan-Archbishop of Winnipeg and the bishops of Edmonton, Saskatoon, and Toronto. (3) The Ecclesiastical Province of the United States of America comprises at the present time the Metropolitan-Archbishop of Phila­ delphia, Pa., the Bishop of Stamford, Conn., and the Bishop of St. Nicholas of Chicago, Ill. (4) The Byzantine Catholics of the Subcarpathic region were organized in the dioceses of Munkachevo (Uzhorod), now in the Ukrainian Soviet Republic, and Preshov (Slovakia), and the Apostolic Exarchy of Miskolc (Hungary). (5) The Apostolic Exarchy for the Ruthenians from the Sub­ carpathic region, Hungary and Yugoslavia in the United States of America has its seat in Pittsburgh, Pa. (6) The Apostolic Exarchy for the Ukrainians in Australia, Tasmania and New Zealand has a bishop with residence in Mel­ bourne, Australia. 22

(7) The Apostolic Exarchy for the Ukrainians in Germany has a bishop whose seat is in Munich, Bavaria. (8) The Ukrainians in Holland, Belgium and the Scandinavian countries are under the spiritual care of the Apostolic Visitor, whose residence is in Rome, Italy. (9) The Ukrainians of Brazil are under the jurisdiction of the Latin rite Archbishop of Rio de Janeiro, who is the ordinary for all Oriental rite Catholics in that nation. He has an Ukrainian titular bishop as auxiliary. (10) The Ukrainians in Austria are under the Latin rite Arch­ bishop of Vienna as ordinary of their parish in Vienna, the territory of which is coterminal with the Austrian Republic. (11) The Ukrainians in France are under the jurisdiction of an Apostolic Exarch, a Ukrainian titular bishop, whose residence is in Paris. (12) The Ukrainians of England and Wales are subject to the Apostolic Exarch who is the Latin rite Archbishop of Westminster, aided by an auxiliary bishop of that nation. (13) The Ukrainians of Argentina are subject to the Latin rite Archbishop of Buenos Aires as ordinary for all Oriental rite Catholics in that country, who is assisted by an Ukrainian auxiliary bishop.

3. The Magyars of the Byzantine rite in Hungary have a bishop and diocese in Haydudorogh, with residence in Nyiregyhaza. 4. The Croats, Rusines, Ukrainians, Macedonians and Romanians of Yugoslavia have a bishop in Krizhevtsy (Croatia). 5. The Romanian Ecclesiastical Province is composed of the Metropolitan-Archbishop of Fagarasi-Alba Julia, and the bishops of Cluj, Oradea Mare, Lugoj, and Maramures. 6. For the Italians of the Byzantine rite, who are remnants of the Greeks of Southern Italy and Albanian settlers, there are two dioceses: Lungro (Calabria) and Piana degli Albanesi (Sicily), as well as the Exarchical Monastery (Abbey nullius) of St. Mary of Grottaferrata.

7. For the Greeks of the Byzantine rite there are two apostolic exarchies with bishops as titulars in Athens (Greece) and Constantinople (Turkey). 8. The Bulgarians of the Byzantine rite are under an apostolic exarch with bishop’s rank in Sofia (Bulgaria). 9. For the Russians of the Byzantine rite there is no episcopal jurisdiction extant at this time, but they are subject to the local Latin rite ordinaries. A titular bishop is at the present time residing in Rome as ordaining prelate.

10. The Byelorussians of the Byzantine rite have an apostolic visitor, a titular bishop, who resides in London (Great Britain). 11. The Apostolic Administrator of Southern Albania was in charge of the few Catholics of the Byzantine rite in Albania.

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IV. THE CHALDEAN OR EAST SYRIAN RITE

1. The Patriarchate of Babylon of the Chaldeans in Irak, Iran, Lebanon, and other countries of the Near East, is composed, besides the patriarchal diocese, of five dioceses, whose titulars are distinguished by tire title of metropolitans, in Bagdad, Kerkuk, Mossul, Sena, Urmia. There is one archbishop of Bassorah, and nine dioceses with bishops in Akra, Aleppo, Amadia, Amida (Diabekir), Beyrouth, Mardin, Salmas, Seert, Zakho. The patriarch has vicars with episcopal rank in Con­ stantinople and in Egypt.

2. The Syro-Malabarian Ecclesiastical Provinces in India are com­ posed of two metropolitans in Changanacherry and Emakulum, and five bishops in Kothamangalem, Kottayam, Palai, Tellicherry, Trichur. V. THE ARMENIAN RITE

1. The Patriarchate of Cilicia of the Armenians with residence in Lebanon has five archbishops in Aleppo, Bagdad, Constantinople, Mardin and Sivas, and sixteen dioceses of Adana, Alexandria, Amida (Diabekir), Ankara, Artwin, Beyrouth, Prusa, Kayseri, Erzerum, Ispahan, Kamechlie, Karput, Marask, Mytilene, Musk, Trebizond. Most of these dioceses are without titulars on account of the extermination of the Armenians by the Turks during World War I. There is a patriarchal vicar in Jerusalem. A patriarchal vicar represents the patriarch in the United States, without exercising jurisdiction over the clergy and faithful, who are subject to the local Latin rite bishops. 2. The Archdiocese in Lwiw (Ukraine).

3. The Ordinariate for the Armenians in Greece, with residence in Athens. 4. The Ordinariate for the Armenians in Romania, with residence in Cherla. 5. Apostolic Exarchy for the Armenians in France.

ORIENTAL RITE CATHOLICS IN THE UNITED STATES AND CANADA Catholics of various Eastern rites in these two countries may be divided into two groups:

1. those who are subject to the local Latin rite ordinaries, viz., all Oriental Catholics with the exception of the Ruthenians (Ukrainians). Such Orientals subject to the Latin rite ordinaries can be placed into three classes: (1) those who have parishes of their own rite; according to The Catholic Directory 1961 there are in the United States such Oriental rite parishes: 6 Armenian, 1 Byelorussian, 2 Chaldean, 25 Melkite, 17 Romanian, 5 Russian, 44 Maronite; 24

(2) those who belong to the local Latin rite parish, although they are also visited and supervised by priests of their rite under the jurisdiction of the Latin rite ordinary; (3) those who have no ecclesiastical organization at all, i.e., who do not form groups numerically strong enough to establish parishes. 2. Those who have their own ecclesiastical hierarchy: the Ukrain­ ians and Ruthenians of the Byzantine rite. A great confusion reigns in the ranks of the Catholic faithful as well as among the clergy when it comes to distinguish various Oriental rites represented on the American continent. Several observations are in place: The terminology commonly employed in denoting different groups of Oriental rite Christians has no nationalistic or political significance, i.e., it does not imply any specific ethnic origin. Melkites and Maronites, although of different rites, are of die same Arabian nationality, while under the name of Ruthenians are included Catholics from several nations. Terms used for denoting national or ethnic extraction are often insufficient to distinguish various Eastern rite Catholics from the Near East: Lebanese, as applied to those who came from the Lebanon Re­ public, could include besides Maronites also Melkites, Catholics of the Syrian group of the Antiochene rite, and even Chaldeans. Syrians may be called all those who came from die Syrian Republic, regardless of rite. The Arabian language is of no help in establishing the rite to which a person belongs, since it is spoken by all Oriental Christians in Syria, Lebanon, Palestine, Iraq and Egypt, all of whom consider themselves as belonging to the Arabian nation. Numerically strongest is the Byzantine rite, i.e., those Catholics who follow the liturgical formularies developed in Constantinople, and who adopted the canon law of the Patriarchate of Constantinople. The an­ cient name of die city of Constantinople was Byzantion, which term is used to denote the whole culture which had its seat in this city during the Middle Ages. However, since during diis epoch die city carried the name of Constantine the Great, the rite developed in these centuries is more accurately called that of Constantinople. The term Byzantine is however so widely accepted for this period of history that we continue calling the rite by this name. Since the various groups of the Byzantine rite created during the centuries particular laws, rules and regulations, for some section of law at least, independently from each odier, we have to distinguish sub­ divisions of the Byzantine rite, disciplines of canon law. The following are represented in the United States and Canada: 1. The Ruthenian discipline, numerically the most important, of which we shall say more in a separate paragraph. 2. The Melkite discipline. Those Christians in Syria, Palestine and Egypt who remained loyal to die Byzantine Empire and the Byzantine Church, when other natives fell away forming the dissident denomi­ nations of the Monophysites and Monothelites, were called Melkites (royalists). The liturgical language of the Melkites is today mosdy Arabic and partiy Greek, and in this country also English. 25

3. The Romanian discipline. Byzantine rite Catholics of this dis­ cipline on the American continent came from a section of Europe which prior to 1918 was a part of the Hungarian half of the former AustroHungarian Monarchy. After World War I their territory in Europe was united with Romania, and only a few remained in Hungary and Yugo­ slavia. Their liturgical language is the vernacular Romanian. 4. The Russian and Beylarussian discipline. Approximately one to two thousand persons belong to this group in the United States and Canada.

THE RUTHENIAN - UKRAINIAN GROUP The world Ruthenian is not the best choice for the purpose of legal terminology. It seems to allude to some ethnic entity, but there is no such nation, people, language or country which could be designated by this name. It came in use only in modem times, in order to give a com­ mon name to those people of the Byzantine rite who inhabited a region in Europe situated roughly between Lithuania in the North and the Car­ pathian mountains in the South. The common bond among them was the fact that they spoke Slavic languages or dialects which were not too different from each other, and permitted communication among them, especially by the use of the lingua franca of the eastern Slavs, the ChurchSlavonic language. During the last and the current centuries the nations which belong to this group grew in national conscientiousness and are known as White Russians (Byelorussians) in the North; Ukrainians, Slovaks, and the disappearing Carpatho-Russians and Rusines in the South. To make the confusion greater, the term Ruthenian, as far as canon law is concerned, was later extended to other peoples who are of entirely different origin, or merely distantly ethnically related, namely: 1. The Magyars of the Byzantine rite, with the vernacular as their liturgical language. The Hungarians, or more correctly Magyars, were exposed to the cultural and ecclesiastical influence of the Byzantine rite during the earlier part of the Middle Ages, and this rite had its followers in Hungary, but later ceded entirely to the Latin rite. By way of national assimiliation a part of the Slavic peoples from the Carpathian mountains and of Romanians in the eastern part of Hungary became in the XVIII. and XIX. centuries Magyars, introduced the vernacular as the liturgical language, and established their own ecclesiastical organization, the Diocese of Haydudorogh. 2. The Slovaks of the Byzantine rite, who are closely related, both in origin and language, to their Ukrainian and Subcarpathian neighbors. 3. The Croats of the Byzantine rite belong to the Slavic ethnic group, but are only distantly related to the Ukrainians and Slovaks. Croats live in Croatia, now a part of the federation of Yugoslavia. Being an iso­ lated group of the Byzantine rite, liturgically and canonically identical

26

to the larger group of the Catholic Slavs of the Byzantine rite, the Holy See included them in many, but not in all, legislative acts which were is­ sued for the whole group of the so-called Ruthenians. In the United States and Canada the Ruthenians have their own hi­ erarchical organization, with the exception of those enrolled in the armed forces of the respective nation. While the ecclesiastical jurisdiction over civilians in both countries is divided and two or three jurisdictions are coexistent in the same territory, the jurisdiction of the major and minor chaplains in the various branches of the armed forces extends to all Catholics without distinction as to rites. In the United States they are separated into two groups or jurisdic­ tions, existing in the same territory, by a personal criterion: 1. The Ukrainian Ecclesiastical Province of Philadelphia is com­ posed of the Archdiocese of Philadelphia, Pa., the Diocese of Stamford, Conn., and die Diocese of St. Nicholas of Chicago, Ill., and has jurisdicover all Ukrainians who trace dieir ancestry to the Austrian half of the former Austro-Hungarian Monarchy, in addition to all those persons who actually and lawfully are today attached to die congregations and parishes of these dioceses. 2. The Byzantine rite Apostolic Exarchy of Pittsburgh, Pa., has jurisdiction over those Catholics who came from the Hungarian half of the former Austro-Hungarian Monarchy, which territory is now a part of Hungary, Slovakia, Croatia, Yugoslavia, and the Ukrainian Soviet Re­ public. It is impossible to draw an accurate line of demarcation between the subjects of the two jurisdictions. The Apostolic See permitted in 1916 diat the parishes be organized into two groups according to the European extraction of the faithful. Already before that date many con­ gregations had split and erected separate parishes for those from Galicia and diose from die Subcarpathic region respectively. This continued to some extent in such circumstances where the number of a certain group was sufficiendy great to permit a second independent parish for that particular group. In places where one group was too small to erect a parish of their own, diey remained attached to the existing parish. Some parishes and mission congregations joined the hierarchical or­ ganization of one group despite the fact diat the majority of the mem­ bers, or even all of diem, came from die odier extraction. The reason was not rarely the influence of the priest in charge at the time. Naturally, that in not a few cases of “mixed” marriages wives per­ suaded their husbands to join rather the church of their own affiliation instead that they follow the husbands’ extraction. All tiiese circumstances were known to the Holy See from the very beginning, and they are evidence that the original separation was not to be carried out according to individual persons or families, but rather dealt with whole parishes, only where and when such a division was possible and feasible. The faithful of both jurisdictions, i.e., of the Ukrainian dioceses and of the Apostolic Exarchy of Pittsburgh, are of the same ethnic origin. Their language, with the exception of the Magyars, Croats and the Slovaks, is the same, save differences of dialect as occur in every lan­ guage. 27

The faithful of the Archeparchy of Philadelphia, of the Dioceses of Stamford and St. Nicholas of Chicago are Ukrainians, by far the largest group of Oriental rite Catholics. The Ukrainian nation are a people of some forty millions who inhabit the southern part of Eastern Europe, northward from the Black Sea. They are now united in the Ukrainian Socialist Soviet Republic, a member of the U.S.S.R., and are akin to other Slavic nations, as the Russians, Poles, Slovaks, etc. The Ukrainian lan­ guage belongs to die East Slavic language branch, distinguished from other languages of the same branch, as, e.g., the Russian language, in the same way as Italian, French, Spanish are differentiated among them­ selves. The group of Ukrainians, Rusines, Slovaks, Croats, Magyars, have in certain aspects of canon law the same particular law, and are in this respect only called by the name of Ruthenians. Some of them, especially the Ukrainians, object violently to the use of this term, since this was imposed on them by the former Austro-Hungarian Monarchy with the intention of separating them from those Ukrainians who were at that time under the rule of the Russian tsar. Considering, however, that no other term is equally satisfying in canon law, it cannot be discarded completely, provided any meaning of ethnic origin is excluded from it. Even the Holy See tries to avoid it and prefers the term Ukrainian whenever reference is made to them alone. Greek-Ruthenian is a pleonasm, the addition of Greek being un­ necessary since all Ruthenians are of the same Byzantine or Greek rite. Byzantine-Slavonic is incorrect, because it is derived from the litur­ gical language, which however is not common to all Ruthenians, some employing Magyar or English, and there are nations, belonging to the Byzantine-Slavonic group, as the Russians, Bulgarians, Serbs, Byelorus­ sians, who do not belong to the Ruthenian canonical discipline. It is also incorrect to use the designation of Greek-Catholic as a synonym for Ruthenian, because Greek-Catholic applies to all Byzantine rite Catholics, i.e., not only to Ruthenians, but also to Romanians, Mel­ kites, and others. The same is to be said of the name Byzantine Catholic.

In Canada the Ruthenians and Ukrainians are subject to the Ukrain­ ian Ecclesiastical Province of Winnipeg, Manitoba, composed of the Archdiocese of Winnipeg, and the Dioceses of Edmonton, Alta, Saskato­ on, Sask., and Toronto, Ont. Since the great majority of the immigrants came from Western Ukrainia (Galicia), and only a small number from Hungarian provinces, a division as found in the United States into two groups was never considered advisable, and they all are united in the same ecclesiastical organization, although separate parishes for Slovaks were erected.

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ACQUISITION AND CHANGE OF RITE ACQUISITION OF RITE Many legal relationships in marriage law depend for their validity upon the rite to which a person belongs. It is therefore important at least to summarize here the rules of how a baptized person becomes the member of a certain rite. These rules were codified anew in the Motu proprio Cleri Sanctitati, from which various canons will be quoted in this connection. Every Catholic, and also every baptized non-Catholic, belongs as such to one of the ritual divisions of the Church, to one, and only to one, of the various rites of the Church. Canon 6. # 1. Among the various rites a person belongs to that one according to the ceremonies of which he has been legitimate­ ly baptized.

The principle enunciated here is of little practical value when the membership of children in a rite is to be determined, since (1) the de­ finition of what is a legitimate baptism is not given here but in the fol­ lowing canons, and (2) there are several exceptions in which the baptism might legitimately be administered in another rite without producing the effect suggested in # 1. The rule is clearer if expressed by saying that a child wlio received baptism belongs io the rite predetermined by law, irrespective of the rite of the minister or the ceremonies. Only in case the rite of the parents cannot be established shall it be presumed that the rite of baptism is the rite to which the child belongs. # 2. If the baptism was administered by a minister of another rite in case of grave necessity, when a priest of the proper rite could not be present, or because of some other just reason with the permission of the proper Hierarch, or because of fraud, the person thus baptized shall be regarded as belonging to that rite according to the ceremonies of which he ought to have been baptized.

When becoming a member of the Church one acquires automatically also membership in one of the rites. Baptism is the door to the Church and therefore also the mode of entering a rite. Non-Catholics, as far as they were baptized in their respective denomination, belong also in a sense to one of the rites of die Church. Those who received baptism in a denomination which traces its origin to the Latin Church, as do the various Protestant groups, to the Latin rite, while those who were baptized in one of the Oriental dissident Churches belong to the cor­ responding Oriental Catholic rite. 29

1. ACQUISITION OF RITE BY ADULTS (1) Formal Conversion Adult converts may enter the rite of their choice by accepting bap­ tism in that rite. In this matter, persons who have reached legal puberty, are adults (c. 17 # 2 Cleri Sanctitati). The formal reception into a certain rite of the Church may be effected also by a priest of another rite, provided the person baptized has manifested the desire to join a rite different from that of the receiving priest. A non-Catholic who never belonged to the Church may make a free choice of rite in entering the Church, and it is immaterial whether he was baptized or not outside the Church. The same freedom is ac­ corded to those non-Catholics who are children of Catholic parents. Fallen-away Catholics in reconciling themselves with the Church have to return to the rite to which they belonged before their apostasy. This follows from the general principles of law that one cannot obtain by an illegal act what others can receive only as a grace, as well as from positive declarations of the Holy See. (2) Informal Conversion

A non-Catholic who was baptized outside the Church may become a Catholic not only by going through the formal act of reception by pro­ fession of Faith, the regular and prescribed mode of joining the Church, but also by conclusive acts, which by their nature have the same meaning, that is, acceptance of the Faith and submission to the ecclesiastical authority. Such determinative acts will be the reception of sacra­ ments. Cases are not rare in practice, as, e.g., if Charles, a dissident Oriental, joins his stepmother in attending the Catholic Church, re­ ceiving sacraments, etc., without having sought the assistance of any priest. We do not consider the attendance at church services and instruction classes alone, even for a long time, without the reception of sacraments, as a conclusive act capable of proving one’s decision to join the Church, because there can be no true conviction and acceptance of Faith if the reception of the annual Holy Communion is rejected. From this category come numerous marriage cases among Oriental Catholics in the United States and Canada. The first generation of the immigrants not rarely joined schismatic churches because of the lack of Catholic priests of their rite and language. Some returned later, others, having abandoned the schismatic organization, remained unaffiliated with any religious denomination. Their children, baptized in a schis­ matic Oriental or in a Protestant church, later contracted marriages out­ side the Church, divorced sometimes their mates, and often wish to enter into a new marriage with a Catholic. They claim to have as children re­ ceived sacraments, to have frequented Catholic religious instruction, and similar acts which would be equivalent to an informal conversion, and thereby make them subject to the Catholic marriage form, leading thus to an annulment of their first marriage and consequent permission to contract a new, Catholic marriage.

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Not rarely this is true and sufficient proofs can be gathered. If the sacraments were received in a church of the Latin rite, such informal converts are to be considered Latin rite Catholics even if their parents should originally have been Catholics of an Oriental rite. When a convert is received into the Church by a specific rite, either by formal conversion, i.e., by being received by a duly authorized priest, or by an informal conversion, when he became a Catholic by simply joining the Church and placing such undeniable acts of adherence as, e. g., the reception of sacraments, there is a simple presumption that he joined that particular rite on his own choice. This presumption can be overcome, disproved, by acts contrary to such an assumption, as, e.g., that he frequented later the church of that Catholic rite to which he belonged as a non-Catholic. Even if a convert should have made a choice against the Catholic rite in which he was received, and this choice was not recorded, or if he claims that he did not know of his right to make such a choice, he cannot effect a transfer of rite without the intervention of ecclesiastical authority, similarly as one who is bound by an apparently invalid marriage bond cannot contract a new one before die invalidity of the first has been established according to the pertinent procedural regulations.

2. ACQUISITION OF RITE BY CHILDREN Children follow the rite of their parents. We have to distinguish such cases: (1) When both parents are Catholics belonging to the same rite; all children are to be baptized in die rite of their parents. (2) When both parents, validly married, are Catholics but of dif­ ferent rites, all children, without distinction of sex, follow the father in his rite. It is of no concern in which rite the parents* marriage was con­ tracted. The above rule applies also in the case of posthumous children, i.e., those who were bom after their legitimate father’s death. (3) When one parent is a Catholic while the other is a non-Cadiolic, all children follow the Catholic parent in his rite. Fallen-away Catholics, i.e., those who at the moment of the baptism of their children profess by positive acts adherence to some other faith or denomination, are to be considered non-Catholics in this matter. In case the apostate parent returns to the Faith (and his former rite) children as yet not emancipated in matters of rite, i.e., before having reached legal puberty, follow the father in his rite, or the mother, if he remains outside the Church, in analogy to the case with which c. 10 deals. Should in a mixed marriage the non-Catholic parent - who never belonged to the Catholic Church - later become a convert and choose a rite different from that of his wife, the children follow their father in the rite he chooses if they have not yet reached legal puberty. The principle that only the rite of the Catholic parent is to be taken into consideration applies also to the case of a non-Catholic parent be­ longing to some dissident Oriental rite group, who demands from his 31

Catholic spouse that the child be baptized in the Catholic Oriental rite corresponding to his own dissident affiliation but different from the rite of the Catholic spouse.

(4) An illegitimate child follows the rite of his mother. Should the mother later marry the father, the infant follows his rite if the father is a Catholic. While common law has no provision for the case of illegi­ timate children, particular law follows our opinion, as that of the Ukrain­ ians from Galicia (Fontes, VII, n. 4859), in the United States relative to the Ruthenians-Ukrainians (Cum Data Fuerit, Art. 43) and in Canada /¿raed-Rutheni Ritus, Art. 48). Catholics living in an invalid marital union can bear only illegitimate children, who follow the rite of the mother. Should the marriage of the parents be convalidated later, the children under legal puberty follow the rite of the father, while the older ones can change their rite only with the permission of the Apostolic See. (5) Should the child of non-Catholic or unknown parents be offered for baptism to a Catholic priest, and he, morally certain that the child will be reared as a Catholic, administers baptism, the child will belong to the rite of the administering priest, which means that non-Catholic par­ ents may have their child baptized in the rite of their choice, whether they themselves remain non-Catholics or embrace the Faith in some other Catholic rite. If the baptism was administered in danger of death by a lay person, or, in the absence of a priest of the rite selected by the non-Catholic parents, by a priest of another rite, their intention alone is decisive. (6) If several Catholics of different rites come in some legal con­ nection with a child of unknown parents, i.e., a foundling, or if it is the case of a child not-yet baptized which is to be adopted, the child should be, according to our opinion, baptized in the rite of that person or institution which is ultimately to assume the responsibility for his upbringing. This means that the mere accidental relationship as be­ tween the child and the person discovering or sheltering him for a short time is of no importance at all.

(7) Baptism administered to children of Catholics against the above rules does not influence their membership in a certain rite. They be­ long not to the rite in the ceremonies of which they were baptized, but to the rite in the ceremonies of which they should have been lawfully baptized (c. 98 # 1 CIC). This applies also to the case when baptism had to be administered in the Latin rite because no priest of the re­ spective Oriental rite was available.

(8) In case the baptism could be administered in the proper rite without difficulty, but for certain reasons, such as, e.g., to please rela­ tives of whose good will the parents expect special benefits, it can be permitted that the child be baptized in a rite other than that prescribed by law. The granting of a permission for such a baptism was, in the CIC, reserved to the Apostolic See, but in c. 6 # 2 it can be given now by the bishop in whose rite the child ought to be baptized. The administration of baptism in these circumstances does not constitute a change of rite, and the child will belong to the rite prescribed by law. 32

TRANSFER OF RITE Canon 8. #1. No one can validly transfer to another rite, nor after a lawful transfer return to the former rite, without permission of the Apostolic See.

1. Transfer Between Rites As rites are here understood the five rites enumerated in c. 303 #1 of Postquam Apostolicis, in addition to the Latin rite. Even if Cleri Sanctitati accords the status of ritus sometimes to subdivisions of the original rites, we do not consider them to be understood as independent rites in the meaning of the present canon. No change of rite is valid in the eyes of the law except if negotiated in conformity with the respective prescription of canon law. The re­ ception of sacraments in another rite, even if exclusive and protracted for a long time, does not effect a change of rite (c. 98 # 4 CIC). According to c.8 #1 the transfer or change from one rite to another can be effected only by the Apostolic See, not counting here the ex­ ceptions mentioned in cc. 9 and 10. (2 ) Transfer Between Disciplines of the Same Rite In regard to change of rite the concept of rite is taken from c. 303 # 1 of Postquam Apostolicis, where as rites are enumerated: the Alex­ andrian, that of Antioch, that of Constantinople, usually called Byzantine, the Chaldean and the Armenian rite. No change of rite is involved when a Catholic transfers from one subdivision of a rite to another, as (1) from the Coptic to the Ethiopian discipline, and vice versa, both subdivisions of the Alexandrian rite; (2) from the Syrian to the Maronite or the Malankarian disciplines, all subdivisions of the rite of Antioch; (3) from the Chaldean to the Malabarian discipline, which have a common origin; (4) from one discipline of the Byzantine rite to another of the same rite.

Though the passing from one such subdivison to another of the same rite is not a change of rite, the consent of the respective ordinaries will be necessary if both subdivisons have separate parishes, because the jurisdiction of the respective pastors is by explicit act limited and re­ stricted to one only group. When a transfer of rite between two patriarchates of the same origi­ nal rite is contemplated, as, e.g., between the Syrian and the Maronite, the consent of both patriarchs should be requested and be sufficient. Applying these principles to conditions in the United States and Canada, we have to consider the following possibilities: (1) An Oriental Catholic wishes to transfer himself from one dis­ cipline to another discipline of the same rite, and both communities are subject to the same local Latin rite ordinary, as, e.g., when a Melkite wishes to join a Romanian parish. No permission is required provided there is no parish of one’s own discipline accessible. However, if an Oriental Catholic does not wish to join the local parish of his own dis­ cipline but one of another, he needs the consent of the local Latin rite ordinary. 33

(2) An Oriental Catholic wishes to change one discipline of the same rite with another discipline, but the two communities are under the jurisdiction of different ordinaries. Such a problem would arise, e.g., if a Romanian of the Byzantine rite wishes to join a parish of one of the Byzantine rite Ukrainian dioceses. He needs the consent of both bishops. Since the change from one jurisdiction to another of the same rite and discipline does not influence the validity of acts, we refer to the dis­ cussion of this problem in our book on The Law on Persons (p. 34). (3) Transfer of Wife to the Rite of Husb and Canon 9. A wife who belongs to another rite is at liberty to join the rite of her husband at the time of marriage or during its duration. When the marriage has been dissolved she is free to resume her own rite.

A wife may aggregate herself to the rite of her husband without needing any special permission. This is to be understood as a complete transfer of rite, and not as a mere temporal accommodation to different liturgical rules and regulations. The declaration of transfer to the rite of the husband made at the time of the wedding does not affect the laws governing the marriage form, i.e., the transfer takes legal effect from die moment of the exchange of vows, but not sooner (Interpretation Commission April 29, 1940, AAS 1940, 212). (4) Children of Parents Transferred to Another Rite Canon 10. If the father lawfully transfers to another rite, or, in a mixed marriage, the Catholic mother, the children who have not yet reached the age of puberty are by law itself transferred to the same rite.

Legal puberty is reached according to c. 17 #2 by males when they have completed their fourteenth, by females when they have com­ pleted their twelfth year of age. In submitting a request for transfer of rite, children under this age have not to be included in the petition, while those who are older must apply for themselves. By analogy, illegitimate children of a non-Catholic father, who him­ self becomes a Catholic in a rite different from that of the mother of the children, automatically change their rite when the marriage of their par­ ents is contracted, or at the time when their father made his conversion, provided they did not yet reach puberty, in which case they would have to apply to the S. Congregation for the Oriental Church for themselves. 5. Conversion of Dissident Orientals Canon 11. # 1.,Baptized non-Catholics of an Eastern rite may embrace the rite they prefer when they are admitted into the Catholic Church; however, it is desired that they retain their own rite.

# 2. A cleric who in virtue of delegated power received a bap­ tized non-Catholic of an Eastern rite into a rite of the Catholic Church different from the cleric’s own, shall inform the Hierarch of

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of the rite assumed. It is expedient also that he seek the advice of the mentioned Hierarch before he receives him.

It is the wish of the Holy See that such persons be informed of the opportunity given them by the Church to remain in their native rite. Catholics of Oriental rites not rarely express the conviction that the Church ought to compel Oriental dissidents to remain in their rite when they join the Catholic Church. However, such a strict attitude would not only antagonize prospective converts, who often had only a nominal con­ nection with the rite of their ancestors, but would also invite reciprocal application of the same principle to converts from Protestantism, per­ mitting them to join the Church only in the Latin rite of their ancestors. Such a consequence would not be at all to the advantage of Catholic Orientals. Canon 8. #2. Among the reasons on account of which transfer to another rite is usually granted the return to the rite of one’s ances­ tors is eminent.

Because of the influence of the Latin rite on Oriental rite converts in the past, the Holy See grants them very easily permission to return to the rite of their forefathers.

6. Conversion of Protestants The permission granted to baptized Oriental dissidents to choose any rite in entering the Church could mistakenly be understood as granting them a special privilege which is denied to other non-Catholics, notably to baptized Protestants, especially since they belong in a certain sense to the Latin rite. This would be an erroneous conclusion. Any person is free in all actions and omissions except if limitations to personal liberty have been set by divine or human law. This principle is valid also within canon law. Consequently, a validly baptized person, regardless of religious affiliation, would be entitled to change from one rite to another, were it not for certain limitations established by the Church. These restrictions of freedom ought to be interpreted strictly. Such curtailment has been established by c.8. This canon speaks of ‘no­ body” being able to transfer to another rite without the permission of the Holy See. This is to be understood, in the light of preceding laws and the teaching of canonists, as regarding baptized Catholics only, i.e., baptized persons who are or have been at one time in communion with the Church, and excludes thereby dissident Orientals as well as Protestants and other non-Catholic Christians. No provision having been made for dissident Orientals and Protestants, they are free to change from one rite to an­ other, as long as they are outside the communion of the Church, or at the moment of aggregating themselves to the visible organization of the Church headed by the Roman Pontiff. The legal capabilities of Protestants to join an Oriental rite at their conversion to the Catholic Church was acknowledged and practiced always on the American continent as well as in other parts of the world. Various offices of the Holy See rendered decisions in numerous marriage cases of such Protestants, in which the question of validity would have been resolved differently had Protestants not been entitled to join Ori­ ental rites. 35

7. Conversion of Infidels Canon 12. A non-baptized person may freely choose the rite in embracing the Faith.

8. Formal Requirements of Transfer of Rite Canon 13. # 1. Except when the rescript of the Apostolic See orders otherwise, the transfer to another rite takes legal effect from the moment of the declaration made before the proper Hierarch or pastor of the new rite or before a priest delegated by either of them and two witnesses, with the exception of a transfer which takes place at the time of entering marriage, which shall be preceded by a written declaration of the wife.

# 2. This declaration shall be recorded without delay in the bap­ tismal register, and shall be brought by the pastor of the new rite to the knowledge of the pastor of the parish where the baptism of the person who changed rite was to be recorded according to canon law, in order that the change of rite might be mentioned in the baptismal register, and in the case of a further transfer of rite, also the pastor of the rite which was held in the meantime shall be informed.

The applicant, possibly his wife, and all their children who are of legal puberty and had joined them in the request, will then in the pre­ sence of the pastor or a priest delegated by him and two other witnesses sign a declaration to the effect that they accept the decree of the Holy See and that they will consider themselves from now on as belonging to this rite. The applicant, the receiving priest and the witnesses affix their signatures. Any other ceremony or sacred rite, as, e.g., the reception of sacraments, cannot be joined with such a declaration because it would create the impression as if the transfer of rite is a kind of conversion to the faith, and debase the dignity of a Catholic rite. The transfer of rite shall be recorded in the baptismal register of the church where it had taken place. It is also a duty of the receiving pastor to notify the pastors of the churches where the applicants and their children have been baptized, and request them to make such an anno­ tation in the baptismal register. They should not omit to forward the protocol number of files and the date of issuance of the decree of the S. Congregation to have it recorded in the baptismal register. If this information is not furnished, the pastor is not bound to consider the in­ formation as genuine. In the case of a convert baptized outside the church this notification is to be sent to the church where he was received into the Church. The question at which time the transfer of rite becomes legally ef­ fective is now definitely answered. Except the S. Congregation for the Oriental Church should decree otherwise, the transfer is accomplished at the moment of the declaration of the applicant that he goes through with his intention.

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THE MOTU PROPRIO CREBRAE

ALLATAE

ON THE DISCIPLINE OF THE SACRAMENT OF MATRIMONY FOR THE ORIENTAL CHURCH POPE PIUS XII

WE FREQUENTLY OBTAINED, especially during these last years, petitions from our delegates as well as from the holy hierarchs of the Oriental Church, in which We were requested, while the codi­ fication of the laws of the Oriental Church is not very far from com­ pletion, to agree to the insisting petitions and to promulgate without further delay some chapters of these laws of great importance, in order to meet with efficient protection the serious and dangerous cir­ cumstances in which several parts of the fold of Christ, which follow the Oriental rite, are constituted.

Therefore, after having carefully and maturely reflected all in the Lord, with full knowledge and hy fullness of the apostolic authori­ ty, We resolve and decree that these canons which concern the discipline of the sacrament of matrimony shall now be published. For indeed, in the very beginning, when the first studies for the preparation of the Code were commenced, Peter Gasparri, Cardinal Priest of the Holy Roman Church, President of the Council for the Preparation of the Canonical Code for the Oriental Church, having in view the facility and frequent necessity which connect the peoples and nations of the whole earth for the very expedite means of communications of our epoch, consulted, in his letter of the fif­ teenth of the month of September of the year 1930, the holy pastors of the Oriental Church, asking them whether, in order to satisfy the desire expressed from many places before the Apostolic See, it would be expedient to have, as far as possible, the ecclesiastical discipline concerning the matrimonial impediments and the form of the mar­ riage contract uniformly defined. This was demanded because, on account of the mentioned facility of communications on land and sea, marriages between persons of mixed rite occurred more frequently, and also in order to have completely removed all uncertainty con­ cerning the validity of marriage which was prejudicing their sanctity.

Therefore, the Council for the preparation of the Canonical Code for the Oriental Church, giving attention to the well*deliberated ans­ wers of the mentioned holy pastors, which showed the nearly unani­ mous approval of all, after having reported this to the last Pope and Our Immediate Predecessor of blessed memory, submitted these canons for Our approbation, which We on the strength of Our apostolic authority approve.

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(Here follows the text of the 131 canons On the Sacrament of Matrimony). We now promulgate by this Apostolic Letter, given on Our own accord, the above mentioned canons, bestowing upon them legal force for all the faithful of the Oriental Church, wherever they may be on earth, and though they may be subject to a prelate of a different rite. Forthwith, when in virtue of this Apostolic Letter the mentioned canons come in force, any statute, whether general or particular or special, even issued by synods which received approval in special form, any prescription and custom hitherto in force, either general or particular, is deprived of its legal force, so that the dis­ cipline of the sacrament of matrimony shall be ruled only by the same canons; and particular law too contrary to them shall have no more force, unless and as far as it is conceded by them.

In order that the knowledge of this Our will come in time to all who are interested, We wish and order that this Apostolic Letter, given on Our own accord, shall begin to be executed from the second day of the month of May of the year 1949, on the feast of St. Athan­ asius, Bishop and Doctor, and nothing contrary shall hinder, though worthy of the most special mention. Given in Rome at St. Peter’s, on the 22nd day of the month of February, on the feast of the Cathedra of St. Peter in Antioch, in the year 1949, the tenth of Our pontificate.

POPE PIUS XH

The concluding words of the Motu Proprio contain several import­ ant juridical provisions: 1. The new law on marriage extends its legal force to all Oriental rite Christians, whether Catholic or dissident.

2. Laws in force before the new codification are abrogated, in­ cluding those enacted by the Roman Pontiffs, with the exception of par­ ticular laws which are expressly permitted in the Motu Proprio to con­ tinue their validity. CrAll mentions such particular laws in canons: 7; 12; 32 # 2; 46,68 ## 2, 3; 88 # 2 and # 3; 97. 3. The legal force of CrAll began May 2, 1949, to be reckoned ac­ cording to the Gregorian calendar, the only one which the Roman Curia follows. Our commentary to these 131 canons treats only points of difference between the marriage law of the Latin rite Church, codified in the CIC, and that of CrAll. Also developments following the promulgation of the CIC, evidenced by such pronouncements of the Holy See as the authentic interpretations issued by the various papal commissions on problems of canon law, as well as those found in the writings of canonists, were taken into consideration whenever it was deemed advisable for a better under­ standing of the new codification. Numerous remarks were suggested by the experience gained from the application of the new marriage law on the American continent, especially to interritual relationships. 38

PRELIMINARY CONCEPTS Nature of Marriage (c. 1 = c. 1012 CIC) Ends, Purpose and Essential Properties of Marriage (c. 2 = c. 1013 CIC) Special Legal Protection of Marriage (c. 3 = c. 1014 CIC) Definition of Terms of Marriage Law (c. 4 = c. 1015 CIC) Relationship Between Divine Law, Canon Law and Civil Law (c. 5 = c. 1016 CIC)

NATURE OF MARRIAGE Canon 1. # 1. Christ the Lord raised the matrimonial contract itself between baptized persons to the dignity of a sacrament.

Oriental dissidents regard matrimony as one of the seven sacraments. They have never maintained that it is a mere contract of civil law. No dissident ecclesiastical authority has defined what constitutes form and matter of the sacrament, but their theologians and canonists consider the assisting priest as the minister of the sacrament. No solution is pro­ vided for the situation of Christians, desirous of contracting marriage, who are deprived of the ministrations of a priest, as it happens now so frequently in countries dominated by Communists. # 2. Consequently, between baptized persons there can be no valid matrimonial contract unless it is at the same time a sacrament.

Non-Catholic Oriental Christians administer as a rule the sacrament of baptism validly. While among some Protestants ideas have crept in which deny the sacramental character of the baptismal rite, and thereby make it doubtful whether their religious ministers actually elicit the right intention of conferring a sacrament when they administer baptism, no such movement has been discovered among dissident Orientals, and die Church accepts their baptismal rite as valid administration of the sacra­ ment. When the Church is called upon to judge the validity of a marriage entered into by two Oriental dissidents, the same principles are to be applied as in the case of a marriage of two Catholics. Should there have been granted a divorce of the marriage under question by the dissident ecclesiastical authority, such action would be of no legal value, not only because the Church does not acknowledge full divorce, considering it prohibited by divine law, but also because the non-Catholic, dissident ecclesiastical authority possesses no true jurisdiction according to Catholic dogmatical propositions, inasmuch as such jurisdiction can be received solely through communion with and subjection to the Roman Pontiff as Vicar of Christ on earth. The same is to be said in respect to possible decrees of annulment issued by dissident ecclesiastical authorities, either by administrative de­ cisions or by court sentences. It is not denied that the marriage in question could be invalid according to divine law, or ecclesiastical law as acknowledged by the Catholic Church. Therefore, material findings of a dissident authority can be accepted as evidence. However, in order that such declarations of nullity be accepted by any Catholic ordinary or pastor, a formal decision of a Catholic ecclesiastical tribunal or of the S. Congregation of the Holy Office will be needed.

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ENDS AND PURPOSES, AND THE ESSENTIAL PROPERTIES OF MARRIAGE Canon 2. # 1. The primary end of marriage is the procreation and upbringing of offspring; the secondary is mutual assistance and the remedy of concupiscence. # 2. The essential properties of marriage are unity and in­ dissolubility, which in the Christian marriage receive a peculiar firmness by reason of the sacrament.

The principle that a valid marriage, sacramental or not, entered within the Church or outside, cannot be dissolved by human power, ad­ mits some exceptions: (1) a sacramental marriage which was not consummated by sexual intercourse can be dissolved by the Roman Pontiff (cf. can. 108); (2) a non-sacramental marriage can be dissolved in virtue of the Pauline Privilege and the Privilege of the Faith (cf. can. 109-116). All Oriental dissidents permit the complete dissolution of the mar­ riage bond and remarriage, not differently horn Protestants. In spite of admitting the possibility of divorce, Oriental dissidents regard marriage a perpetual, not a temporary union. However, while Protestants con­ sider marriage to come wholly under the power of the state, and valid divorce decrees thus emanate from state courts, the Oriental dissidents assign jurisdiction in matrimonial matters exclusively to the Church and to ecclesiastical tribunals. When non-Catholics wish to contract a Catholic marriage after they have obtained a divorce decree separating them from their former spouses, they allege to have never contracted an indissoluble marriage; that, when they entered into the marriage before their minister or priest or before a civil magistrate, they were aware of the possibility of divorcing their spouse if married life should prove unsatisfactory. As long as their awareness of this possibility was a mere hypothetical opinion, it is superseded by the general intention of initiating a legal bond for life (cf. can. 76). Only if the dissolubility of the marriage in question was stipulated by at least one party as a necessary condition will the validity of the marriage be affected (cf. can. 83).

SPECIAL LEGAL PROTECTION OF MARRIAGE Canon 3. Marriage enjoys the favor of law; consequently, in a doubt the validity of marriage shall be upheld until the contrary is proved, without prejudice to what is stated in can. 116.

The Church does not dare to dissolve a doubtfully valid sacra­ mental marriage for fear that the divine law forbidding divorce could be violated. In the case of two marriages in which the validity of the second is dependent on that of the first, i.e., the second is only valid if the first was invalid. If it cannot be ascertained whether the first marriage was valid, the first shall be presumed valid and the second invalid, pro­ vided the case is being resolved according to the rules of procedure (Code Commission, AAS, 1947, p.374, June 26, 1947). 40

This shall be illustrated by an example: Basil, a Latin rite Catholic, married Catherine, a Latin rite Catholic, in 1920 in Russia before a civil official, in a region where there had never been a Catholic church. It could not be ascertained whether an authorized priest was available to them or not, i.e., whether the ordinary marriage form was binding or the extraordinary marriage form (cf.c.1098 n.2 CIC) was sufficient. Basil divorced Catherine in 1922, and married Olga, a Byzantine rite Catholic, in Poland before a Catholic priest, to whom he had concealed his first marriage. The marriage Basil - Olga was dissolved by a civil court in 1936. Catherine had died in 1932. Basil wishes to convalidate his third marriage with Ann, a Catholic. This can be done only if his second marriage with Olga was invalid. The validity of the marriage Basil - Olga will depend on the validity of the marriage Basil - Catherine. Since diligent inquires could not resolve the doubt, the marriage Basil - Catherine was declared presumptively valid, although dissolved by the death of Catherine, the marriage Basil - Olga was conseqently decreed invalid because of the divine impediment of ligamen, and the ecclesiastical impediment of crime, and the marriage Basil - Anna was permitted to be convalidated.

DEFINITIONS OF TERMS OF MARRIAGE LAW Canon 4. # 1. A valid marriage of baptized persons is called r a t u m if it has not yet been consummated by conjugal inter­ course; ratum et consummatum if conjugal inter­ course has taken place between the spouses to which the matrimonial contract of its nature tends and by which the spouses become one flesh. # 2. After the matrimonial contract has been concluded, if the spouses have lived together, consummation is presumed until the contrary is proved.

# 3. The valid marriage contracted between unbaptized per­ sons is called legitimum. # 4. An invalid marriage is called putativum if it has been contracted in good faith by at least one of the parties before the Church, until both parties become certain of its invalidity.

Canon 1015 # 4 CIC established as one of the essential elements of a putative marriage that it was considered valid in good faith by at least one party. It was doubtful whether the concept of putative marriage could be applied to all marriages indiscriminately, or only to Catholic marriages. The Code Commission had on January 26, 1949 (AAS, 1949, p.158) decided that only marriages entered into before the Church shall be regarded as putative. The present codification has taken cognizance of this change by adding in this paragraph the words “coram Ecclesia” after‘celebratum”. The chief legal consequence of the fact that a marriage can now be considered putative, i.e., certainly invalid, but at the time of celebration regarded valid by at least one party, concerns the legitimacy of the children bom during the period the good faith perdured. 41

According to F. Cappello, SJ. (De Matrimonio, p.730), the condition that the putative marriage be celebrated “coram Ecclesia” is fulfilled in either way, if contracted before an authorized priest and two witnesses, i.e., with observation of the ordinary ecclesiastical marriage form (c.1094 CIC or c.85 CrAll), or according to the provisions of the extraordinary marriage form (c.1098 CIC or c.89 CrAll) before two witnesses alone.

COMPETENCE OF CHURCH AND STATE

OVER MARRIAGE Canon 5. The marriage of baptized persons is ruled not only by Divine Law but also by Canon Law, save for the competency of the civil authority in regard to mere civil effects of marriage.

This dogmatic postulate is recognized also by the various Oriental dissidents, and their bishops have usually established matrimonial tri­ bunals. However, since they admit the possibility of complete divorce and remarriage, these tribunals are chiefly concerned with that part of marriage law which governs the reasons for permitting a perpetual sep­ aration. The paramount interest in divorce grounds obscures the impor­ tance of other parts of ecclesiastical marriage law, as, e.g., on the per­ sonal impediments or defects of consent, which retain only a mere theo­ retical significance.

Since most governments are set up according to the principles of a pluralistic society, and the various religious denominations, including the Catholic Church, are treated as associations of private law, the state does not take cognizance at all or only to a limited degree of the ecclesi­ astical marriage law. This is different in countries of the Near East, where so-called Personal Statutes are in force. These personal statutes are in existence in most countries where Islam is the religion of the majority of the population. According to the teachings of Mohammed and Islam there is no distinction between the civil and the religious spheres, and no priesthood is admitted. All citizens of the country should be of the faith­ ful, although non-islamic possessors of the sacred book, the Christians and Jews, should be granted tolerance. Because of the theocratical char­ acter of such a society, there is no need, e.g., of a state law on marriage, because such laws are already provided by religion, i.e., Islam. It was realized that citizens who are Jews and Christians could not be obliged to the same laws as Mohammedans, especially those laws which concern domestic relationships, as marriage, inheritance, parent­ children relations, etc. It was therefore permitted to the various Christian and Jewish communities to regulate such matters of their adherents according to their own laws, the so-called Personal Statutes. The idea of modern European legal systems, that the same laws should oblige all citizens without distinctions in every aspect of their lives, is still alien to such countries as Egypt, Syria, Lebanon, Irak, Israel, etc. In the most recent times, some branches of law, as, e.g., commerce, criminal offenses and their punishment, have been codified in one or the other country,

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but when, e.g., a Christian desires to have his marriage declared null, he can achieve it only before an ecclesiastical court of his denomination, since there is, strictly speaking, no civil court having jurisdiction over him in this matter. Because there are no ecclesiastical superiors in the Islamic society, and religion is represented only by the head of the state and by profes­ sional teachers, hierarchs, encountered by the Mohammedans upon con­ quering Christian countries, were regarded as civil heads of their com­ munities. That they were only superiors in the realm of religion was beyond the understanding of the Islamic conquerors. The Arabs and Turks acknowledged the patriarchs as supreme heads of their people even in civil matters, and ruled the Christians even in civil affairs not directly, but mediately through their religious superiors, the patriarchs and bishops. The hierarchy, especially the patriarchs, achieved the status of high-ranking civil magistrates, gained great power, prestige and re­ sponsibility, and became true ethnarchs of their people. They not only administered justice even in criminal cases, but became also the tax col­ lectors, and as such responsible to the civil government.

The whole legal situation for each community was defined in the Personal Statutes, so called because they regulated their personal legal status, and they concerned them only as persons belonging to that com­ munity, without consideration of the territory. A large part of the laws coming under the heading of personal statutes for Oriental Catholics are contained in the codification of the Oriental canon law. The reason the marriage law was promulgated as the first part of the codification was the necessity of speedily providing a unified law for all Eastern Catholics at a time when there was the dangerous threat that the state, e.g., Egypt, could place them under a state marriage law, which would have been nothing else than the Islamic religious law. The state could have made use of the excuse that the Catholics had no such clearly codi­ fied statute as is needed for a normal dispensation of justice. Since nearly all countries of the Near East have communities of several Oriental Catholic rites, it is of importance that their interpre­ tation and application of common laws belonging to personal statutes be the same, lest the situation of Catholics be jeopardized before the Islamic state because of divergencies in the application of laws that have legal force also in the civil sphere. Patriarchs are therefore urged to achieve this harmony by taking mutual counsel: Motu Proprio Cleri Sanctitati: Canon 271. # 1. Personal statutes must be observed in regions where they are in force not only in mat­ ters in which they agree with canon law, including the particular law, but also in other matters, provided there is no specific norm of canon law regarding the respective matter, and the personal statutes are not contrary to divine or canon law.

# 2. If several patriarchs make use in the same locality of the power given to them in personal statutes, it is advisable that they take counsel with each other in resolving matters of importance. # 3. The patriarch may exercise the authority of a civil magis­ trate if this is in accordance with the approved custom.

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THE BETROTHAL Legal Form (c.6 # # 1, 2 = cf.c.1017 # # 1, 2 CIC) Legal Consequences (c.6 # 3 = c.1017 # 3 CIC) Formal Requirements (c.7 = new)

Canon 6. # 1. The promise of marriage, although bilateral, that is, a betrothal, is invalid in both forums, unless it has been made before the pastor, or before the local hierarch, or before a priest delegated with the power of assistance by either of them.

There are several differences from the corresponding text of the CIC: (1) The unilateral promise of marriage, according to which one party binds himself to marry the other, while the latter does not bind herself (himself), is not mentioned since it was not known in the Christian East. However, it is possible, and its existence is not excluded theoretically, although it is not a betrothal in the meaning of Oriental Canon Law. (2) The CIC demands that the betrothal be recorded in a written act, minutes be drawn up, while the present canon does not require it, (3) since the presence of the hierarch or of the pastor is not facul­ tative (as in the CIC) but mandatory. The CIC requires the presence either of the local ordinary or of the pastor or, satisfied even with less, of at least two witnesses. (4) The presence of witnesses is not required. Since Oriental rites have a special liturgical formulary of betrothal, the performance of this ceremony and its recording in the appropriate register ensures the char­ acter of publicity and the possibility of proving it at any time. (5) The local hierarch or the pastor can delegate their authority to another priest, according to the same rules that apply to the delegation of the marriage assistance. When the parties to a betrothal belong to different rites, e.g., to the Latin rite and to the Byzantine rite, the form of either rite can be follow­ ed (Coussa, De Matrimonio, p. 16). There can be no “mixed” betrothals, i.e., between a Catholic and a non-Catholic before a dispensation has been obtained for the marriage. Even after the dispensation was received, no religious rite shall be per­ formed. # 2. 1. That pastor, or local Hierarch, or priest delegated by either of them, assists validly at a promise of marriage, who ac­ cording to can. 86, 87 assists validly at marriage. 2. Who has assisted at a promise of marriage is obliged to take care that its celebration be recorded in the book of engagements.

The CIC does not designate the competent pastor, and even a bet­ rothal assisted at by a pastor of a rite to which neither party belongs would be valid, although illicit, provided he is within his territory. CrAll empowers only that pastor who will be competent for the marriage assist­ ance. 44

The recording of the betrothal obviates the necessity of drawing up a special instrument, as envisaged by the CIC; according to Oriental law, the oral betrothal is sufficient. # 3. Yet, the promise of marriage does not entitle to an action requesting the contracting of marriage.. It entitles, however, to an action for indemnification because of damages, if such is due.

Can. 1017 # 3 has an insertion stating that no action for a suit is granted in the case of a breach of promise to marry “even if it was valid and no just reason excuses from keeping it”. The omission in the Oriental law is explained by Coussa (De Matrimomo, p.182) with the intention to leave the matter for further treatment to particular law, and also because theologians are divided on the question as to whether any obligation re­ sults from a betrothal. CIC and CrAll are conform in their intention to preclude an action in court instituted solely for the purpose to urge the contracting of the marriage. Canon 7. The priest assisting at the promise of marriage shall not omit to bestow on the Catholic betrothed the blessing prescribed by the liturgical books, if particular law provides so.

In order to be canonically valid, the betrothal must have been con­ tracted according to the juridical form established by law; the liturgical blessing is precribed only for lawfullness.

While the liturgical marriage rite is to be given also to marriages of Oriental rite Catholics with non-Catholics (c.91), differently from the CIC (c.1102 # 2), the liturgical blessing of betrothal shall be imparted only when both parties are Catholics.

Not all Oriental groups demand for the validity of the betrothal that a liturgical rite be followed. In evolving the liturgical formulary of betrothal, its legal import was gradually equalized to that of marriage, including indissolubility. As a consequence, parties avoided it, to re­ tain full freedom of action as to a possible rescinding of the contract, and entered into mere secular engagement contracts. The liturgical rite of betrothal was, however, not abandoned but joined with that of marriage. This is the situation in the Byzantine rite.

GENERAL INSTRUCTION OF THE FAITHFUL IN MARRIAGE LAW (c.8 = c.1018 CIC) Canon 8. The pastor shall not fail prudently to impart to the faithful instructions concerning the sacrament of matrimony and its impediments.

The Archieparchial Statutes of the Byzantine Rite Archdiocese of Philadelphia (U.S.A.) have the following provision in this matter:

Canon 356. Pastors shall instruct their parishioners on the sacra­ ment of matrimony and on all the moral and legal requirements for a valid, lawful, and successful marriage. 45

CHAPTER I. ACTS WHICH HAVE TO PRECEDE THE

MARRIAGE RITE, ESPECIALLY THE MARRIAGE RANNS (cc.9 - 24) The Preliminary Investigation: 1. General Obligation (c.9 = c.1019 CIC) 2. Questioning of the Parties (c.10 = c.1020 CIC) Proof of Baptism and Confirmation (c.ll = c.1021 CIC) The Marriage Banns: 1. General Obligation (c.12 = c.1022 CIC) 2. Places Where the Banns are to be Announced (c.13 = c.1023 CIC) 3. Time of Banns (c.14 = c.1024 CIC) 4. Written Banns (c.15 = c.1025 CIC) 5. Prohibition of Banns for Mixed Marriages (c.16 = c.1026 CIC) 6. Dispensation from Banns (c.18 = c.1028 CIC) Obligation to Reveal Impediments (c.17 = c.1027 CIC) Investigations by Other Pastors (c.19 = c.1029 CIC) Decision to Assist at Marriage (c.20 = c.1030 CIC) Procedure When Impediment Discovered (c.21 = c.1031 CIC) Assistance at Marriages of Vagi (c.22 = c.1032 CIC) Individual Instruction of the Parties - Reception of Sacraments (c.23 = c.1033 CIC) Marriages of Minors (c.24 = c.1034 CIC)

OBLIGATION OF PRELIMINARY INVESTIGATION Canon 9. # 1. Before marriage is contracted, it must be certain that there is nothing standing in the way of its valid and licit cele­ bration. # 2. In danger of death, if other proofs are not available, it suf­ fices, unless there are indications to the contrary, that the contracting parties affirm under oath that they were baptized and that they are not bound by any impediment.

The instruction of the S. Congregation of the Sacraments of June 29, 1941 (AAS, 1941, p.297), which regulates in detail the legal formalities that are to precede marriage, does not oblige Oriental rite ordinaries and dioceses. It is advisable to pay attention in the course of the prenuptial in­ vestigation to the rite a person might lawfully belong to, and not rely solely on the baptism certificate. If the baptism was administered

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against the law, e.g., in the rite of the mother instead in the Catholic father s rite, the child will belong to his rite. Should such a Catholic marry a unbaptized person, the marriage assistance by a pastor of the rite in which he or she was baptized could be invalid, as well as the dis­ pensation obtained for the marriage. The Diocese of Cleveland has therefore included in the Pre-Nuptial Investigation Form this question: ‘Was there any Eastern Rite in your family background? - (If yes, the priest should determine and indicate if the person is a child of a canon­ ically valid marriage?)” (Trivisonno, p.264). For most refugees from the countries behind the Iron Curtain it is extremely difficult and time consuming, and very often impossible, to procure the documents which are usually required from persons who present themselves to a pastor for the purpose of contracting marriages. Communist authorities do not issue any documents for use of people they call traitors, and they have enacted such prohibitions also to Catholic priests and pastors. Taking this difficulty into consideration, ample credibility should be accorded to affirmations made to attest the free status of such persons and the absence of legal impediments. After all, the chief advantage, perhaps the only one, of receiving the blessing of the Church to a marriage in nations which permit or require a civil mar­ riage ceremony will be a spiritual one, and the conscious attempt of a marriage they know to be invalid before God would thus bring them no benefit. If strict demands to fulfill the pertinent formalistic requirements, although justified as a general rule, should make it too difficult to be married in Church, they will satisfy themselves with a civil marriage, without fear of incurring, in most cases, in their community social ostracism or other non-religious disadvantages. Canon 10. # 1. The pastor who is entitled to assist at the mar­ riage shall inquire, in convenient time before, whether there is any­ thing opposing the marriage contract.

The Statutes of the Archdiocese of Philadelphia (Byzantine Rite) have the following prescription: Canon 359. Before setting a definite date for the celebration of marriage, all persons intending to contract marriage shall notify their pastor at least one month before the marriage is to take place. Canon 360. The proper pastor of the parties desiring to contract marriage is bound: a) to ascertain their freedom to marry; b) to obtain the necessary dispensations; c) to publish the banns and d) to realize the fulfillment of all other legal requirements before assisting at the mar­ riage or issuing any letters granting permission for the marriage to be contracted elsewhere. The proper pastor for conducting the prenuptial investigation is to be determined according to the canons below. # 2. He shall question the bridegroom as well as the bride, also apart from each other and cautiously, whether they, especially the woman, give the consent freely, and whether they are sufficiently instructed in Christian doctrine, unless for personal qualities this last question appears useless.

The purpose of the interrogation is: (1) to discover the existence of impediments affecting die person as such;

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(2) to establish that both parties will give a free and genuine con­ sent; (3) that they are adequately instructed in the faith. # 3. It is in the responsibility of the local Hierarch to prescribe special rules for such an investigation of the pastor.

The Instruction of die S. Congregation for the Sacraments of June 29, 1941 (AAS, 1941, p.297) on the rules to be followed by pastors and ordinaries in the prenuptial investigation does not oblige the Oriental rite dioceses. The tenor of c.10 has been enlarged by the Archieparchial Statutes of the Byzantine Rite Archdiocese of Philadelphia to cover the many possibilities with which Ukrainian Catholic pastors are confronted in the United States or Canada on account of the recent immigration from Europe. Since they might be useful to other pastors too, they are quoted here in their entirety: Canon 365. The freedom of a party to contract marriage shall be resolved with the aide of the following principles: A person is free to marry: 1. if he has neither contracted a valid marriage nor renounced such a right, i.e., he did not belong to the religious or to the clerical state; 2. if his previous marriage was dissolved by the death of his partner; 3. if he is free from dll diriment and prohibitive impediments; 4. if he contracted an invalid marriage by not observing the canon­ ical form of marriage; 5. if his previous marriage was dissolved by an eparchial tribunal or by the Apostolic See. In cases 4 and 5, the nihil obstat of the Chancery is necessary for assisting at the marriage. In cases 1, 2 and 3, the matter shall be re­ solved by the pastor. If a doubt arises, it shall be forwarded to the Chancery for decision. Canon 366. Proof of the free status of unmarried persons shall be ascertained as follows: 1. The principal proof is the baptismal certificate issued not more than six months prior to the prenuptial investigation, wherein it is ex­ plicitly stated that there is no annotation in the church records regarding a contracted marriage. 2. The baptismal certificate with the aforesaid annotation, along with a negative result in regard to the banns and the prenuptial investi­ gation, will ordinarily be sufficient for establishing the freedom of the parties to contract marriage. 3. If it is impossible to obtain a baptismal certificate, other docu­ ments should be sought which would prove that a previous bond of mar­ riage does not exist. In the absence of such documents, the very nature of this matter, viz., the proving of a negative fact, demands that any and as many documents be gathered which would permit a declaration of a person's free status with moral certitude. Therefore, it is the duty of the parties themselves to submit as many proofs as possible, e.g., a declar­ ation from the pastor of each of the parties who personally knows either 48

party or the families to such an extent that he can affirm the free status. The probatory value of each document must be carefully ascertained. 4. Other documents issued by ecclesiastical or civil authorities may also serve as proof of freedom to marry. Such documents, however, may be considered as proof only if the pastor is certain of their authenticity. A document, either public or private, in which a declar­ ation was made by a party at a time when he did not contemplate con­ tracting marriage may also be accepted as a form of proof. 5. Considering the punishment which can be inflicted upon one who submits false statements under oath to a civil officer, a certain pro­ batory value may also be conceded to a marriage license, especially when submitted in addition to the recorded testimony of witnesses, e.g., if in a license it is clearly stated that the party is unmarried or is a widower (widow). A license which states that the party is “single” cannot be taken into consideration, since this term is also applied to persons who have been granted a civil divorce or annulment. 6. Though a negative result in regard to the banns is acceptable, i.e., when no one has reported anything that would prevent the marriage from being contracted, it can only be regarded as supporting proof. 7. An important proof is the recorded and sworn testimony of wit­ nesses who have means of knowing that to which they testify and who are worthy of credence: (1) The less personal interest witnesses have in the result of an in­ quiry, the more value is to be given to their testimony. Preference is to be given to persons who are not connected by family ties with the parties in question. However, it may happen that only the members of the family are acquainted with the personal circumstances of a person. Therefore, they cannot always be excluded from rendering testimony. The two parties, on the other hand, can never be witnesses for each other. (2) It will not suffice for a witness to state his personal convictions in regard to a given party, for example: “I swear that Eve is free to marry and that she has not contracted any marriage”, but he must state the particular circumstances, e.g., time, place, source, etc., which would prove his assertion. Examples of depositions (I) “I can testify that Adam is free to marry, and that he did not contract any marriage either in a Catholic or a non-Catholic church or before a civil authority, because I am from the same vil­ lage. I often met him during our stay in Germany. I and many other persons at the concentration camp in Berlin heard him say that he was single. I also saw the official records on the ship as well as his personal documents. Everywhere he was listed as unmarried. Since I have been in such circumstances where I necessarily would have known of his possible marriage, I exclude any such possibility.” (II) “I have known Vladimir only four years. He always in­ troduced himself as a bachelor and was listed with the single men at the camp where he lived. His late brother also spoke and acted in such a way that I never had any doubt that Vladimir was a bach­ elor.” 49

(Ill) “I did not personally know Olga before arriving in this country. My late sister, who attended the same classes at teachers college, told me that Olga remained single to the great surprise of all since she had many opportunities to marry. I personally know that Olga is a pious Catholic and frequently receives the sacraments. Therefore, I would exclude the possibility that she contracted mar­ riage elsewhere or that she is concealing the truth in such an impor­ tant matter.” (3) Since the value of testimony not only depends upon the source or the external circumstances, i.e., the actual conditions of time, place, etc., from which or by which the alleged statements are known to the witness, but also upon his veracity, the pastor shall add his own opinion to the deposition signed by the witness, for example: “John Petriw is a registered member of this parish; participates in the services; receives the sacraments; and enjoys a good reputation among the faithful.” In regard to the proof for the establishing the death of a spouse of a person who wishes to remarry, cf. the commentary to c.59.

PROOF OF BAPTISM Canon 11. # 1. Unless the baptism was administered in his own territory, the pastor shall demand the certificate of baptism from both parties, or of the Catholic party alone, if it is the case of a marriage which is to be contracted with a dispensation from the impediment of disparity of worship.

The contents of this paragraph have been enlarged by the Synodal Statutes of Philadelphia in the following manner to apply to the situa­ tion on the American continent: Canon 362. Baptism shall be proved according to the following principles: 1. Unless the baptism is recorded in the baptismal register of the parish where the prenuptial investigation is to be conducted, Catholics must produce a certificate of baptism not older than six months, since an annotation on the certificate as copied from the baptismal register has some bearing on the free status of the person in question. 2. If non-Catholics claim to have been baptized, they shall prove this by a proper document. The majority of non-Catholic sects admin­ ister the sacrament of baptism in such a manner that the Catholic Church must consider its validity dubious. The Church finds it necessary to grant a dispensation from the impediment of disparity of worship along with a dispensation from the impediment of mixed religion. Consequ­ ently, whether a non-Catholic is or is not baptized is of minor import­ ance. Therefore, as a rule, a certificate of baptism is accepted, but not requested from Protestants. However, if it is readily available, such a document is to be obtained from non-Catholics of an Oriental rite, since their baptism is generally considered valid. For such parties solely a dispensation from the impediment of mixed religion shall be requested from the Metropolitan.

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3. Neither party to a marriage shall be compelled to procure a document which would again expose one or both of them to the influence of a non-Catholic priest or minister. 4. If it is impossible to obtain a certificate of baptism, an inter­ rogatory shall be composed in order to obtain facts which would reason­ ably permit the presumption of baptism. The interrogatory shall not be limited to general questions, but include specific questions pertinent to the case, since a witness, devoid of an official capacity, is neither al­ lowed nor entitled to testify by making general allegations: viz. “I swear that Adam is baptized," but has to state accurately what, how, from whom, and from what point in time he had come by the information he is offering. Examples of depositions (I) “I know that Adam is baptized because he attended the same school and classes with me. There were only Catholics in our village, and they were all baptized. Adam received the sacraments from the hand of our priest, who had served there some twenty years, though he had not baptized him. However, he certainly knew that Adam was baptized, because he had to submit a list of all the child­ ren of the parish prepared from the baptism-confirmation register to the public school authorities." (II) “As his mother and sister, Bohdan always declared himself a Catholic of our rite. He participated in our worship; privately he spoke about the church and about the religious life in his native village; received the sacraments; etc." (Ill) “I know that I was baptized and confirmed immediately after my birth. I know this to be true because my parents told me so. I remember also my godparents, with whom I exchanged the customary signs of affection between godchild and godparents. I had three brothers and two sisters - all of whom were baptized just as everyone else in our village." 5. Parents and other members of the family ordinarily are the best witnesses for testifying to the reception of baptism. Even the person whose baptism is to be proved is not excluded if other witnesses are not available, especially if he received baptism as an adult. 6. Whenever proofs or witnesses are unavailable, and a person offers as proof only the mere statement of having been baptized, i.e., he does not know either the place or the time, the baptism is to be considered as not having been proved and should be conditionally conferred with the permission of the Chancery. This only applies to Catholics. If the same question arises in regard to the baptism of a non-Catholic, a dis­ pensation from the impediment of disparity of worship should be ob­ tained. 7. If an authentic document is produced, or if witnesses are availa­ ble who without any difficulty furnish all facts referring to time, place, minister, sponsor, etc., the baptism is to be considered fully proved. In all other cases, the matter shall be submitted to the Chancery. 8. In the danger of death, if other proofs are not available and if contrary indications are absent, it suffices that the parties affirm under oath that they were baptized. 51

PROOF OF CONFIRMATION # 2. Catholics who have not yet received the sacrament of con* firmation shall receive it before being admitted to marriage, if they can do so without great inconvenience.

In those Oriental rites in which priests enjoy the faculty of admini­ stering confirmation, faithful of the rite of such priests should receive the sacraments of confirmation. However, the administration of confir­ mation separately from baptism is reserved to the bishop, (cf.c.503, 1 of Cleri Sanctitati), who usually will readily delegate the priest or pastor.

The Archieparchial Statutes of Philadelphia order in this matter: Canon 363. That a party to a marriage has received the sacrament of confirmation shall be ascertained by applying the following principles: 1. Catholics who have not yet received the sacrament of confir­ mation should receive it before they are permitted to contract marriage. Catholics of our rite, who perhaps were baptized by a Latin rite priest, shall be confirmed before they contract marriage, according to the Can­ ons governing confirmation. Catholics of another rite, especially of one in which the administration of confirmation is reserved to a bishop, shall be admonished to receive it as soon as possible. 2. Since confirmation is not essential for salvation, and canon law does not consider it indispensable for the contracting of marriage, it is not necessary to demand proof of confirmation with the same strictness as in the case of baptism. As a rule, the simple statement of the party will be sufficient. 3. Non-Catholics shall not be interrogated on the reception of con­ firmation, even though their religious sect may acknowledge the sacrament. The Synodal Statutes of Philadelphia grant a general delegation to priests to administer confirmation separately from baptism, without the need of a previous permission from the Chancery, to converts who are widowed or unmarried non-CathoUcs desirous to enter the Church prior to contracting marriage with an unmarried or widowed Catholic. In all other cases the administration of confirmation separately from baptism is reserved to the bishop. In respect to converts from Eastern dissident communities, who in general administer the sacrament of confirmation validly, the following norms have been established by can.265 of the Philadelphia Statutes: 1. Converts who affirm that they have been confirmed in an Eastern dissident community of Europe, Asia, or Africa, shall not be re­ confirmed, except if they are to receive holy orders or expressly so desire. 2. Converts who affirm that they have been confirmed in an Eastern dissident community of the Americas, as a rule, shall be con­ ditionally re-confirmed, inasmuch as not a few of their priests were in­ validly ordained or did not use Holy Myro blessed by a validly con­ secrated bishop. However, if there is proof that they belonged to a community which preserved Apostolic succession, they shall not be re­ confirmed, except if they are to receive holy orders or expressly so desire. 52

3. Converts from an Eastern dissident community whose baptism has been proven, but whose confirmation can neither be established nor denied, shall be presumed to be confirmed validly or doubtfully ac­ cording to paragraphs 1 and 2, except if they are to receive holy orders, in which event confirmation shall be administered conditionally.

OBLIGATION OF MARRIAGE BANNS Canon 12. The pastor shall announce publicly between which persons marriage is to be contracted, if particular law demands it.

While the law of the Latin rite Church knows the marriage banns as a general obligation everywhere. Oriental law makes them dependent on particular law. The following groups have obligatory marriage banns: Maronites, Malabarians, Malankarians, and from among the Byzantine rite groups: the Ukrainians, Ruthenians, Romanians, Croatians, Magyars, Russians, Italians.

PLACE OF MARRIAGE BANNS Canon 13. # 1. The marriage banns are to be announced by the parties* own pastor. #2. If a party has lived in another place for six months after having reached puberty, the pastor shall refer the matter to the Hierarch, who may, at his discretion, either demand that the banns be announced there, or prescribe that other proofs or evidence con­ cerning his free status be procured. # 3. If there is any suspicion that an impediment had been contracted, the pastor shall consult the Hierarch, even if the sojourn was shorter, who shall not permit the marriage until the suspicion has been removed according to # 2.

In order to implement the foregoing demand of law, the Synodal Statutes of Philadelphia have established the following rules:

Canon 374. The intention of two Catholics to contract marriage shall be brought to the knowledge of the faithful as follows: 1. It shall be announced in the parishes where each of the parties have a domicile or quasi-domicile. 2. If a party is unable to procure a recent baptismal certificate to which an annotation was added in regard to the existence or the non­ existence of a previous marriage, the banns shall be announced in every parish in which the parties had resided at least six months after they reached the age of fourteen, otherwise proof of the free status shall be established according to the foregoing canons.

Canon 375. If the parties belong to different parishes, the pastor who conducts the prenuptial investigation shall request in writing the pastor of the other parish to publish banns, forwarding at the same time all pertinent information for their proper publication. The pastor of the other parish shall begin the publication of the banns at once, and within three days after the last announcement shall inform in writing the pastor who made the request. 53

TIME OF MARRIAGE BANNS Canon 14. The banns are to be announced in the church on three consecutive Sundays and other holydays of obligation, during divine services which are attended by numerous faithful.

The Byzantine Rite Archdiocese of Philadelphia has prescribed in its Synodal Statutes the following form for the banns: Canon 377. For the sake of uniformity, and in order to fulfill the purpose of the publication of the banns, the following form shall be used: “A.B., son of C.B. and D.E., Byzantine rite Catholic, unmarried, of Philadelphia, and F.G., daughter of H.G. and I.K., Latin rite Catholic, widow after the late L.M., of New York. This is the first (second, third) announcement. Anyone having knowledge of any impediment to the proposed marriage has an obligation in conscience to make it known to the pastor as soon as possible”

WRITTEN MARRIAGE BANNS Canon 15. The local Hierarch may substitute in his territory for the banns the affixing of the names of the parties at the doors of the parish church, or of another church, for a time of at least eight days, yet so that this period includes two holydays of obligation.

Equivalent to having the banns announced by affiche on the church doors, but more efficient, since the notification comes printed into the hands of each parishioner, is the following manner permitted in the Philadelphia Synodal Statutes:

Canon 376. If a pastor regularly publishes a weekly bulletin for his parishioners, it is permissible to publish the banns in the bulletin for three consecutive issues. To each announcement, in either the oral or printed form, must be attached a summons calling upon the faithful to report at once the existence of any diriment or prohibitive impediment to the pastor.

BANNS IN MIXED MARRIAGES Canon 16. Banns of marriages which are to be contracted with dispensation from the impediment of disparity of worship or of mixed religion shall not be announced, unless the local Hierarch, scandal having been removed, in his discretion deems it proper to permit them, provided that the apostolic dispensation has preceded, except in the case of can.32, and reference to the religion of the non>Catholic party is omitted.

Since European Oriental dissidents also know of the institution of marriage banns, dissident parties to a mixed marriage sometime request, motivated by social considerations, that their marriage be announced in the church as other pure Catholic marriages. This can be granted by the bishop provided bad example is not given.

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The reference to can.32, of which there is no equivalent found in the corresponding c.1026 CIC, concerns hierarchs below the Roman Pontiff who are empowered to grant marriage dispensations in virtue of ordinary jurisdiction.

DENUNCIATION OF IMPEDIMENTS Canon 17. All the faithful are obliged to reveal impediments, if they know such, either to the pastor or the local Hierarch prior to the celebration of the marriage.

DISPENSATION FROM BANNS Canon 18. # 1. The proper local Hierarch is entitled to dispense according to his prudent judgment for a legitimate reason from the publication of banns also in another eparchy. # 2. If there are several proper Hierarchs, it is for him to dispense in whose eparchy the marriage is to take place; and if the marriage is to be entered into outside the proper eparchies, the proper Hierarch of either of them.

Interpretation issued by the Pontifical Commission for the Redaction of the Code of Oriental Canon Law on May 3, 1953 (AAS, 1953, 312):

Question I: Can a local Hierarch in whose eparchy the mar­ riage will be celebrated relieve from the marriage banns, in accord­ ance with can.18 # 2, parties subject to the law, who, however, be­ long to different rites? Answer: Affirmative, provided he is the proper Hierarch of that (party) who is in need of the dispensation. Question II: Can a local Hierarch in whose eparchy the mar­ riage will be celebrated dispense from marriage banns, in accordance with can.18, # 2, parties belonging to the rite of the Hierarch, who nevertheless is not their own Hierarch? Answer: Negative.

This authentic interpretation regulates the granting of dispensations from the announcements of banns in the case of parties belonging to different rites, or in the case in which they belong to the same rite but tide marriage is to be celebrated in another diocese. If it is a mixed rite marriage, the ordinary in whose diocese the mar­ riage is to be celebrated can grant such a dispensation. Therefore, if the groom is a Ukrainian of the Byzantine rite and the bride of the Latin rite, the Ukrainian Byzantine rite bishop only can grant the dispensation, since the marriage is to be assisted by a pastor of his jurisdiction. If with dispensation from the Holy See (Apostolic Delegate) the marriage is to be performed by a Latin rite pastor, his bishop will be competent to grant a dispensation from all or any banns. In the case the mixed rite marriage or one in which both parties are of the same rite is to be celebrated before a pastor of another diocese, who is not a proper pastor of either of the parties because of domicile, 55

quasi-domicile or monthly sojourn, the dispensation from the banns can­ not be granted lawfully by this pastor s ordinary. The reason for this limitation is probably the desire of the legislator to reserve the granting of such a dispensation to those ordinaries who are presumed to have better access to information concerning the parties.

Example: John is a Byzantine rite Catholic with domicile in To­ ronto, Ontario, Canada. He wishes to marry Catherine, a Latin rite Catholic, from Hamilton, Ontario, Canada. Since the bride is preg­ nant they decide to get married by a Byzantine rite pastor in the surroundings of Buffalo, N.Y. If a dispensation from banns is desired, it can be granted only by the Byzantine rite Bishop of Toronto, and not by the Byzantine rite Bishop of Stamford, Conn., U.S.A., who has Juris­ diction over the Byzantine rite pastor in Buffalo, N. Y.

INFORMATION ON INVESTIGATION Canon 19. If another pastor performed the investigation or the banns, he shall inform concerning the result at once by an authentic document the pastor who is to assist at the marriage.

This canon applies especially to the situation in which the parties to a marriage belong to different rites (dioceses). The marriage will be performed by the pastor of the bridegroom. If the parties are able to appear together before his pastor, it will be sufficient if the bride submits to him whatever documents her own pastor has given her: a recent bap­ tism certificate; perhaps a confirmation certificate; a document attesting the reception of First Holy Communion, etc. Should it not be possible for the parties to present themselves to­ gether before the pastor of the bridegroom because of the distance of the latter s residence from that of the bride, the prenuptial investigation can be performed for the bride alone, or even for both parties, by her pastor, who is obliged to notify the pastor of die bridegroom of its results. In either possibility, the pastor of the bride too is to announce the marriage banns for her, and has to notify of their outcome the pastor who is to assist at the marriage. If the prenuptial investigation had been taken care of by the latter, the pastor of the bride will announce the banns only after he has received a letter from the other pastor requesting it. When the pastors involved belong to different dioceses, then, ac­ cording to the Instruction of the S. Congregation for the Sacraments of June 29, 1941, the pastor transmitting die documents and information must do it through the chancery of his own diocese. The chancery adds its own nihil obstat. Since the mentioned Instruction does not apply to Catholics of Oriental rites, the Byzantine rite bishops in the United States and Canada do not demand compliance with it, and their pastors will accept from Latin rite pastors or Byzantine rite pastors of another diocese the results of the prenuptial investigation and the pertinent documents without the mediation of a chancery. 56

DECISION OF GRANTING ASSISTANCE Canon 20. # 1. After the investigation and the banns have been completed, the pastor shall not assist at the marriage until he has received all the necessary documents, and, moreover, three days have passed since the last of the banns, unless a good reason de­ mands otherwise. # 2. If the marriage has not been contracted within six months, the banns are to be repeated, unless the local Hierarch decides other­ wise.

The three days which ought to elapse between the last publication of the banns and the wedding can be shortened if in the judgement of the pastor the free status of the party is ascertained beyond a reasonable doubt, and, in addition, there is a sufficient reason submitted by the parties for an immediate marriage ceremony. It is the right of the pastor himself to make such a decision, not of the priest who actually will assist at the marriage with a delegation from the pastor. Nor does the pastor need permission from the ordinary.

DISCOVERY OF IMPEDIMENTS Canon 21. #1. When a doubt has arisen concerning the exist­ ence of an impediment: 1. The pastor shall investigate the matter more thoroughly by questioning under oath at least two trustworthy witnesses, provided there is not a question of an impediment which by publication would cause infamy to the parties; and, if it should be necessary, question­ ing the parties themselves; 2. He shall continue or complete the banns, if the doubt arose before the banns were begun or completed; .. 3. He shall not assist at the marriage without consulting the Hierarch, if he prudently judges that the doubt still remains.

# 2. When a definite impediment has been discovered: 1. if the impediment is secret, the pastor shall continue or complete the banns and refer the matter to the local Hierarch or to the Sacred Penitentiary, not giving the (true) names; 2. if it is public and is discovered before the banns are begun, the pastor shall not proceed further until the impediment is removed, though he may know that a dispensation for the internal forum solely had been obtained; if it is discovered after the first or second banns, the pastor shall complete the banns and refer the matter to the Hier­ arch. # 3. Finally, if no impediment was discovered, either doubtful or certain, the pastor shall, after completing the banns, admit the parties to contract marriage.

As impediments mentioned in this canon are to be understood not only the diriment and prohibitive impediments affecting the person as such, as defined in can.26 ss., but every fact that would render the mar­ riage invalid or illicit, including also any defect in the consent (cf.can. 73 ss.) 57

MARRIAGES OF VAGI Canon 22. The pastor shall not assist at the marriage of v a g i, that is, of those who nowhere have a domicile or quasidomicile, except in the case of necessity, unless he, after having referred the matter to the local Hierarch or the priest delegated by him, obtained permission to assist.

The previous permission of the ordinary or his delegate for assisting at a marriage of vagi is only for the normal case; should there be some danger in delay, the pastor himself can resolve die problem.

INSTRUCTION AND THE RECEPTION OF SACRAMENTS Canon 23. The pastor shall not omit, with due regard to the different condition of persons, to instruct the betrothed on the sanctity of the sacrament of matrimony, the mutual obligation of the spouses and the obligations of parents toward their offspring. He shall also gravely admonish them to confess accurately their sins before the celebration of the wedding and piously receive the Divine Eucharist.

While the reception of the sacrament of penance has to precede the wedding, Holy Communion can be received both before or after the actual exchange of consent. Sacramental confession can precede the marriage ceremony by a considerable time, and this is sometimes even advisable if thereby a hid­ den impediment could be discovered. Concerning the pre-marriage instruction and the reception of the sacraments, the following norms were enacted by the First Synod of Philadelphia: Canon 379. Before the celebration of the marriage the pastor shall prudently instruct the parties on the rights and obligations of the married state. There shall be at least two adequate instructions given to Catholic couples and at least six instructions if one of the parties is a non-Catholic. It shall be demanded of the non-Catholic party to be present at all the instructions, in order that he may become acquainted with the religious obligations of his intended spouse.

Canon 380. Priests are forbidden to give to those about to contract marriage descriptive instructions, either oral or written, on the physical aspects of marriage; they shall arrange “Cana Conferences” on the more intimate aspects of married life. These conferences are to be conducted by competent Catholic laymen, preferably physicians, under the vigilance of the pastor.. Married couples may also be invited to attend thesa conferences. Canon 364. The reception of the Holy Eucharist shall be governed by the following rules: 1. The pastor shall insist that the parties confess their sins and re­ ceive the Holy Eucharist before contracting marriage. 2. Proof of having received First Holy Communion is not to be re­ quested solely for the sake of obtaining a proof of the reception of this 58

sacrament, since the parties (or the Catholic party) will receive the sacrament prior to the celebration of the marriage, but in order to have assurance that they are instructed in the truths of the Faith. 3. Because pastors in some churches did not keep accurate records of those who received First Holy Communion, as for other reasons, it will at times be impossible to obtain a proper document. In such cases a statement from the parties will be sufficient.

Canon 396. The witnesses, the ushers, the bridesmaids and other members of the bridal party shall be exhorted to carry on the prevalent custom of receiving the sacraments of penance and Holy Eucharist together with the parties.

MARRIAGES OF MINORS Canon 24. The pastor shall earnestly warn minors not to enter marriage without knowledge or against reasonable objections of their parents. If they persist, he shall not assist at their marriage unless he has previously consulted with the local Hierarch.

Majority is reached in Latin rite canon law with the completion of the 21.year of age (c.88 # 1 CIC). In Oriental law a person comes of major age with the completion of the 18.year, unless particular law should establish a higher age (c.17 # 1 of Cleri Sanctitati). The Byzantine rite Catholics of the United States and Canada have no specific legis­ lation in this matter. Parents should be given opportunity to voice objections against a marriage of a minor. It would not be mandatory to urge that parents express their opinion, but if there is a suspicion that they might have valid objections, it should be insisted that they make contact with the pastor.

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CHAPTER TWO:

MATRIMONIAL IMPEDIMENTS IN GENERAL (cc.25 - 30)

The Right to Marriage (c.25 = c.1035 CIC) Prohibitive and Diriment Impediments (c.26 = c.1036 CIC) Public and Occult Impediments (c.27 = c.1037 CIC) Power to Establish Impediments: 1. The Supreme Authority of the Church (c.28 = c.1038 CIC) 2. The Local Hierarchs (c.29 = c.1039 CIC) 3. Legal Custom (c.30 = c.1041 CIC)

THE RIGHT TO MARRIAGE Canon 25. All persons may contract marriage who are not for­ bidden by law.

The law which governs, in accordance with Catholic dogmatic principles, the marriages of baptized persons is either if divine origin, the so-called natural law (exemplified by the rules concerning the va­ lidity of the marriage consent) and the positive divine law (e.g., the diriment impediment of the marriage bond), or of human, ecclesiastical, origin, as most prohibitive and diriment impediments. The marriage law of the Church is today entirely general or common law, applying to all her parts, as the different rites, and all members alike; particular law is very rarely permitted to continue in this province of canon law (cf.c.10 # 3; c.15). Civil law is admitted by the Church only for determining mere civil effects of the marriage contract (c.5).

PROHIBITIVE AND DIRIMENT IMPEDIMENTS Canon 26. # 1. A prohibitive impediment contains a grave prohibition to contract a marriage; it does not, however, render it invalid if contracted regardless of the impediment.

The new codification has substituted the “impedient” impediments of the CIC, which actually did not impede the marriage but only forbade it, with the term “prohibitive” impediments (impedimentum prohibens), # 2. A diriment impediment both definitely forbids the contract­ ing of marriage as well as prevents it from being contracted validly.

The term “matrimonial impediment” can include all circumstances that have a bearing on the validity or lawfulness of a marriage. This broad meaning was narrowed down by the CIC to comprise only such

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circumstances that are attached by the law to persons as such. The validity or lawfulness of a marriage will therefore depend on these cir­ cumstances: 1. Prohibitive and diriment impediments established by the Church, and defined, for the Eastern rite Churches, in CrAll (cc.48-71). 2. Presence or absence of defects in the consent (cc.72-84). 3. Observation of the form of marriage contract, prescribed as es­ sential requirement by the Church (cc.85-98). In examining the validity of a specific marriage contract, we proceed from the more patent to the more concealed circumstances. First we put the form to a test. If we are satisfied with its validity, we proceed to ex­ amine the personal qualifications of the parties; and only lastly our inquiry turns to the consent, a most difficult undertaking, since it con­ cerns acts which are hidden in the innermost sanctum of each marriage partner. # 3. An impediment renders the marriage either illicit or in* valid though it exists only on one side.

Paragraph 3 refers, among others, also to certain mixed rite mar­ riages, when the impediment exists only in the rite of one partner, an occurrence of which more is said in connection with c.66 (consanguinity).

PUBLIC AND OCCULT IMPEDIMENTS Canon 27. An impediment is considered public if it arises from a public fact or if it can be proved by other means in the external forum; otherwise it is occult.

Impediments can be public or occult. Some impediments are public by their nature, because they are a sequel of a fact that usually can be established in the external forum: 1. by a public document (c.339 Sollicitudinem Nostram — c.1816 CIC); 2. by testimony of a qualified witness upon official acts (c.314 # 1 Sollicitudinem Nostram = c.1791 # 1 CIC); 3. by testimony of two or three trustworthy persons (c.314 # 2 Sollicitudinem Nostram = c.1791 # 2 CIC). The following impediments qualify in this category: mixed religion, nonage, disparity of cult, religious profession, holy orders, ligamen, abduction, legitimate consanguinity and affinity, public propriety, the first kind of the impediment of crime, adoption. Other impediments are by their nature occult since they are kept secret, although in exceptional circumstances they might be proved in the external forum. Such impediments are impotence, private vows, the second and third kind of the impediment of crime, illegitimate consanquinity and affinity. Impediments by nature public can be in a specific case occult, and impediments by nature occult can be in fact public. However, marriage law does not always apply the same notion of publicity to various situ­ ations:

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1. In respect to the renewal of consent in a marriage invalid be­ cause of an impediment, the concept of the public or occult impediment (cc.124, 125 # 3 = cc.1135, 1136 # 3 CIC) must be stricly applied: if the impediment can speculatively be proved in the external forum, the consent is to be renewed according to the above canons. 2. In respect to other contingencies, as, e.g., the marriage banns (cf.c.21 = c.1131 CIC), dispensations from impediments (cc.32-35 — cc. 1043-1045 CIC; c.37 = c.1047 CIC; c.39 # 2 = c.1049 # 2 CIC; c.40 — c.1050 CIC; c.45 = c.1055 CIC), an impediment will be public only if it is in fact public. Thus impediments which by their nature are public, because they can be established from offical recordings, can in a given case be considered occult, even though they are known to a few discreet persons (Code Commission, Dec. 28, 1927-AAS, 1928, 61). In respect to impediments which for any reason are not known as such, i.e., that they constitute an obstacle to marriage (e.g., consanguinity of the 2/4 degree according to Oriental marriage law), the Code Com­ mission has decreed that such an impediment will be public if the fact (the mentioned blood relationship) is public (June 25, 1932 - AAS, 1932, p.284). This decision has been incorporated in the wording of can. 27.

ESTABLISHMENT OF IMPEDIMENTS Canon 28. # 1. The supreme authority of the Church alone is empowered to declare authentically in which cases divine law forbids or annuls marriage. # 2. The same supreme authority alone is entitled to establish other prohibitive or diriment matrimonial impediments for baptized persons by way either of universal or particular law.

Up to Crebrae Allatae the highest authority of Oriental rites, usually the patriarch with the patriarchal synod, or metropolitans independent of a patriarch together with a provincial synod, could establish mat­ rimonial impediments, or at least define them according to the particular traditions formed in that rite. This power to legislate on impediments, as well as to interpret authentically their limits, is now reserved to the Roman Pontiff alone or with the possible assistance of an ecumenical council. CrAll permits in some instances the existence of particular law in the realm of marriage law. Two possibilities can be distinguished: (1) Existing peculiarities are permitted to continue in their legal force. Such an example are the second and third species of affinity de­ fined in c.68 # 2, 3. Changes in respect to such particular law, as.e.g., fined in c.68 # 2, 3. Changes in respect to such particular law, as.e.g., its abolition, can be made only by the supreme authority of the Church, the Roman Pontiff and the ecumenical council. (2) Sometimes it is left to particular law to define legislative needs, as, e.g., in cc.12; 32 # 2; 46, etc. In such cases the highest authority of that respective rite or hierarchical organization, possibly the patriarch with the patriarchal synod, is empowered to decide the problem.

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CrAll has in this place omitted a canon corresponding to c.1040 CIC, which says: “No one except the Roman Pontiff can abrogate or derogate from impediments of ecclesiastical law, whether they be impedient or diriment; nor dispense from the same, unless this power has been given either by common law or by a special indult from the Apostolic See? There was no need for this canon in CrAll because the principles enunciated in c.28 cover satisfactorily also the instances mentioned in c. 1040 CIC.

VETO OF MARRIAGE Canon 29. # 1. The local Hierarchs can forbid in a particular case any one staying in their territory, and their subjects also out­ side their territory, to marry, but only for a time, for a just reason, and during its duration.

# 2. Only the Apostolic See is empowered to attach a diriment clause to the prohibition.

Local ordinaries have the power to demand that all or certain land of marriage cases be submitted to their scrutiny before celebration. However, they would exceed these boundaries if they should decree that a certain kind of marriage case be held up, as, e.g., that all mar­ riages of minors be delayed for six months if the bride is pregnant. The intention of the ordinary can be laudable, because not rarely are young people forced into marrying each other solely because of the pregnancy. A postponement of half a year will usually clarify the situation and separate the case of true marriage intent from the others. However, a general order of this kind is beyond the legislative power of local or­ dinaries, since it is equivalent to the establishment of a new impediment. Precepts of this kind in individual cases would be in his competence.

LEGAL CUSTOM AND IMPEDIMENTS Canon 30. A custom which introduces a new impediment, or one contrary to existing impediments, is rejected.

Most of the matrimonial impediments of the Eastern Churches had their beginning as laws in custom. The Fathers of the Church in their writings, and the various synods, especially the ecumenical ones, in their definitions, tried to elevate them to the clarity of written laws, but not always with success. They failed very often clearly and unambiguously to determine whether these impediments were prohibitive or diriment. If one compares the legislation and judicature of the Eastern dissident Churches among each other, which are the historic successors of the ancient legislation, significant differences in the definition and in the extension of various impediments are found, a state which the more is embarassing since they all profess to interpret the law common to the ancient Eastern Church. It is therefore an important advance that in the Catholic Church the question of matrimonial impediments, their establishment, abrogation, interpretation, dispensation, is united under die jurisdiction and supervision of the Holy See of Rome. 63

DISPENSATION OF MATRIMONIAL IMPEDIMENTS (cc.31 · 47) Major and Minor Impediments (c.31 = c.1042 CIC) Ordinary Power of Dispensation of Hierarchs (c.32 = new) Power of Dispensation in Danger of Death: 1. Local Hierarchs (c.33 = c.1043 CIC) 2. Other Priests (c.34 = c.1044 CIC) Power of Dispensation in case of Urgency: 1. Local Hierarchs (c.35 ## 1, 2, 4 = c.1045 ## 1, 2, 4 CIC) 2. Other Priests (c.35 # 3; c.36 = c.1045 # 3; c.1046 CIC) Power of Dispensation of the S. Penitentiary (c.37 = c.1047 CIC) Use of Power of Dispensation: 1. Concurrence with Power of Apostolic See or Patriarch (c.38 = c.1048 CIC) 2. Dispensation from Multiple Impediments (c.39 = c.1049 CIC) 3. Concurrence of Public and Occult Impediments (c.40 = c.1050 CIC) Implicit Legitimation of Children (c.41 = c.1051 CIC) Implicit Dispensation from the Impediments of Consanguinity and Affinity (c.42 = c.1052 CIC) Implicit Dispensation from the Impediment of Crime (c.43 = c.1053 CIC) Dispensation from Minor Impediments (c.44 = c.1054 CIC) Execution of Rescript of Dispensation (c.45 = c.1055 CIC) Fee for Dispensation (c.46 = c.1056 CIC) Mentioning of Authority Granting Dispensation (c.47 = c.1057 CIC)

MAJOR AND MINOR IMPEDIMENTS Canon 31. # 1. Impediments of minor degree are: 1. Consanguinity in the sixth degree of the collateral line; 2. Affinity, as mentioned in can.67 # 1, n.l, in the fourth degree of the collateral line; and that one mentioned in the same canon # 1, nn.2, 3, in any degree; 3. Public propriety in the second degree; 4. Spiritual relationship; 5. Guardianship and relationship resulting from adoption, as mentioned in can.71; 6. Crime arising from adultery with the promise or the attempt of marriage even by a mere civil act.

# 2. The remaining diriment impediments are of major degree.

Interpretation issued by the Pontifical Commission for the Redaction of the Code of Oriental Canon Law on May 3, 1953 (AAS, 1953, 312): 64

Question: Of which degree is to be regarded in single cases an impediment which, because of the difference between Oriental and Latin computation, is in accordance with can.31 of major or minor degree? Answer: The degree of an impediment is to be reckoned in ac­ cordance with the discipline to which the Hierarch belonged who granted the dispensation. Paragraph 2 of this canon differs from its counterpart in the CIC in that it declares as major impediments only those diriment impediments which are not mentioned in # 1, while c.1042 # 2 does not distinguish, and defines as major impediments simply all others, i.e., thereby including involuntarily also the prohibitive (impedient) impediments. This distinction finds application in the question of validity of dis­ pensations vitiated on account of false statements or intentional omission made by petitioners (cf.c.44). The degrees of consanguinity, affinity and public propriety are to be computed according to the rules of c.24 of Cleri Sanctitati (cf. comentary to c.66). It should be pointed out that c.1042 - 62 CIC did not enumerate here the legal relationship resulting from adoption (c.70 — c.1079 CIC). In the case of parties belonging to two rites in which the impediment of consanguinity or affinity extends to different degrees the law of the Hierarch granting the dispensation is to be attended to when in a given case a decision is to be made whether the impediment is of minor or of major degree.

ORDINARY POWER OF DISPENSATION Canon 32. # 1. Except in the case of more extensive faculties which may pertain to them because of a privilege or a particular law, the local Hierarchs, but not the Syncellus without a special mandate, are entitled, provided that a canonical reason exists, to dispense their own subjects from prohibitive impediments, with the exception of the impediments arising from mixed religion or from a vow taken in a minor or simple profession made in a religious institute of papal or patriarchal law, and from the following diriment impediments: 1. from the impediment of consanguinity in the fifth and sixth degree of the collateral line; 2. from the impediment of affinity, mentioned in can.67, # 1, n.l, in the fourth degree of the collateral line, and from the impedi* ments mentioned in the same canon # 1, nn.2, 3, in any degree; 3. from the impediment of public propriety in the second de* gree; 4. from the impediment of spiritual relationship; 5. from the impediment of legal relationship and guardianship; 6. outside the patriarchate, from the impediment of nonage, but not beyond two full years.

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THE ORDINARY POWER OF GRANTING DISPENSATIONS BELOW THE ROMAN PONTIFF

1. LOCAL HIERARCHS Oriental matrimonial legislation contains an innovation in respect to the power of local ordinaries to grant dispensations. While in accord­ ance with the CIC ordinaries must receive the power of dispensation from the Holy See either in virtue of the Quinquennial Faculties or by rescript in specific cases, CrAll assigns to them the ordinary, although vicarious, power of granting certain dispensations from the above enu­ merated impediments and degrees of impediments. Which prelates are considered local hierarchs in canon law is de­ fined in c.306 # 2 of Postquam Apostolicis: 1. Under the term of Hierarch, besides the Roman Pontiff, are understood, unless expressly excluded, in relation to the territory of each of them: the resident bishop; the exarch who is in charge of his own territory; the apostolic as well as the patriarchal and archi­ épiscopal exarch who is in charge of a territory not his own; the permanently appointed apostolic administrator; the syncellus, the judicial power excepted unless he has received a special mandate; the temporarily appointed apostolic administrator; and all those who in case of vacancy in these offices are to succeed in the government according to rules of law or approved statutes. In respect to their subjects, the major superiors in exempt monasteries and in exempt clerical institutes are also Hierarchs. 2. By the term of local Hierarchs are meant all persons enu­ merated above except the religious superiors.

THE LOCAL ORDINARY AS DISPENSATOR (A General Survey)

1. In normal cases (1) In virtue of ordinary power from the impediments enumerated in c.32 # 1 (cf. below); (2) in virtue of the Quinquennial Faculties; (3) in virtue of power received by rescripts either from the Holy See (S. Congregation for the Oriental Church or from the Holy Office), the patriarch or the apostolic legate. 2. In urgent cases From all impediments of ecclesiastical institution, with the exception of the order of presbyterate, and affinity in the direct line if the marriage from which the impediment arose had been consummated (cf.c.35 # 1). 3. In danger of death From all impediments as in urgent cases, and from the marriage form itself (cf.c.33). 4. In breakdown of communication with the Roman Pontiff From all impediments as mentioned above and from the marriage form, provided there is danger of great harm and neither the Holy See nor the respective legate can be approached. 66

LIMITS OF THE ORIENTAL ORDINARY’S POWER OF DISPENSATION (c.32 # 1)

I. IN RESPECT TO THE IMPEDIMENTS Ordinaries can dispense from 1. Prohibitive Impediments: (1) private vows of virginity, of perfect chastity, of not marrying, of embracing religious life, and of receiving the subdiaconate or a major order in rites in which clerics are obliged to celibacy (cf.c.48 # 1, n.2); (2) guardianship or legal relationship (c.49); (3) public vow of chastity taken in a religious institute of episcopal right (c.190 # 1 Postquam Apostolicis). 2. Diriment Impediments: (1) The fifth and sixth degree of consanguinity in the collateral line (cf.c.66 CrAll and c.24 Cleri Sanctitati); (2) the affinity mentioned in c.67 # 1 in the fourth degree of the oblique line and from the other kinds of affinity mentioned in # 1, nn.2 and 3, of the same canon, in all degrees (cf. also c.68 and c.25 Cleri Sanctitati). (3) the second degree of public propriety (c.69 CrAll); (4) spiritual relationship as defined in c.70; (5) guardianship and legal relationship as defined in c.71; (6) nonage (cf.c.57) up to two years, but only if the ordinary is independent of a patriarch, although perhaps subject to a metropolitan. The ordinary power of local hierarchs can be even more extensive in virtue of possible privileges or of particular law. The latter remark of c.32 # 1 refers probably to the possibility that one or the other faculty enjoyed by the patriarch could be transferred permanently to local hierarchs of the patriarchate.

II. IN RESPECT TO THE PLACE OF EXERCISE OF THIS POWER

The ordinary can make use of this faculty everywhere, also outside the territorial limits of his diocese, provided the recipient of the dispen­ sation is a subject of his.

IN RESPECT TO THE RECIPIENTS OF DISPENSA­ TIONS The ordinary can make use of this power at the request of all: 1. subjects, whether they are actually staying at the moment in his territory or not. Subjects are all those faithful of his rite who possess a domicile or quasi-domicile in his territory, acquired and held in accor­ dance with the rules established in cc.20-22 Cleri Sanctitati ( — cc.9294 CIC) and c.304 Postquam Apostolicis ( = c.91 CIC); 2. vagi, i.e., those who have nowhere a domicile or quasi-domicile and are therefore subject to the ordinary of the place of actual sojourn (c.22 # 4 Cleri Sanctitati); III.

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3. as to peregrins, i.e., those who have elsewhere a domicile or quasi-domicile but not in the territory in which they are at the moment, a problem arises: (1) while c.32 # 3 expressly grants to patriarchs the power to dis­ pense peregrins (“et in omnes sui ritus fideles in patriarchatu actu degen­ tes, etsi domicilium vel quasi-domicilium in aliqua eparchia patriarchatus non habeant”), # 1 speaks only of “proprios subditos” in defining the dispensative power of local hierarchs. The silence can be understood as denying such faculty to them. (2) Can.201 # 1 CIC says that “the power of jurisdiction can directly be exercised only over subjects”, while c.22 # 1 Cleri Sanctitati (c.94 # 1 CIC) rules that one becomes a subject of an ordinary or pastor in virtue of domicile or quasi-domicile. Can. 142 # 1 Cleri Sanctitati, which is the counterpart to c.201 # 1 CIC, has an important addition: “unless expressly stipulated otherwise”. This could refer, e.g., to the power of the patriarch as mentioned in c.32 # 3. Since no such express extension is mentioned in # 1 tn regard to the ordinaries, it can be concluded that they cannot grant in virtue of c.32 # 1 matrimonial dispensations to per­ egrins. (3) However, such eminent canonists as Coussa, Maroto, CicognaniStaffa (cf. Coussa, De Matrimonio, p.55) argue in the affirmative: since it is a dispensation from general laws which affect subjects and peregrins alike, the latter ought not to be deprived of the opportunity offered to the former, to receive such dispensations from the local hierarch. The doctrine was adopted, e.g., in a decision of die S.Roman Rota, defended by such reasoning: “Agitur namque de lege generali Ecclesiae cui et peregrini sunt subiecti, in loco ubi viget (c.14 # 1, 3^); itaque vel ratione transitus, non quidem Ordinarium sed Superiorem certe sortiuntur, seu subditi fiunt quoad harum legum observantiam et ea quae observantiam consequuntur, ut sunt sanctio poenalis, et ob rationem contrarii, dispen­ satio” (ci.Coussa, De Matrimonio, Annot.138, p.55). (4) Whatever side one should take, it cannot be denied that there exists a dubium iuris, which is to be resolved in accordance with c.152 Cleri Sanctitati (c.209 CIC), i.e., “in dubio positivo et probabili sive iuris sive facti, iurisdictionem supplet Ecclesia in foro tum externo tum in­ terno” should the dispensation that was granted be doubtful as to its validity. Also c.15 CIC applies here. (5) A sojourn of one month permits the pastor to assist at the mar­ riage of peregrins (c.88 # 1, n.2), but does not make the peregrin a sub­ ject of the local ordinary. IV. IN RESPECT TO DELEGATION OF THE POWER

The dispensative power of c.32 # 1 is not automatically enjoyed by the vicar general (syncellus), although it can be granted to him by a special mandate. When the syncellus received such a delegation he exer­ cises the faculty in virtue of ordinary power (c.434 Cleri Sanctitati). Ordinary jurisdiction can be delegated to others totally (ad universitatem causarum) or in part, unless the law expressly provides to the contrary (c.140 # 1 Cleri Sanctitati); such a contrary provision was added to c.32 in its # 6. 68

V. IN RESPECT TO CANONICAL CAUSE

The power of local ordinaries to grant dispensations according to c.32 # 1 is an act of jurisdiction connected by law with their office, but it is a power originally belonging to the supreme authority in the Church, the Apostolic See and the ecumenical councils, the sole authors of the laws establishing matrimonial impediments. The exercise of it by or­ dinaries is therefore an act of ordinary vicarious jurisdiction. An ecclesiastical superior below the legislator granting dispensations in virtue of vicarious jurisdiction would act invalidly were he to exercise it without canonical cause (c.84 # 1 CIC).

2.

PATRIARCHS

# 2. A patriarch, save for more extensive faculties belonging to him by privilege or by particular law, in addition to the faculty mentioned in # 1, can dispense: 1. from the impediment of nonage, but not beyond two full years;

2. from the impediment of crime mentioned in c.65, n.l; 3. from the impediment of consanguinity in the fourth degree of the collateral line; 4. from the impediment of affinity mentioned in can.67 # 1, n.l, in the second and the more distant degrees of the collateral line;

5. from the form of the marriage contract in the case mentioned in can.90 # 1, n.2, but only for a very grave reason. # 3. The patriarch can exercise the power granted or acknow* ledged to him in ## 1, 2, over his own subjects everywhere, and over every one of the faithful of his rite who are actually staying in his patriarchate, though they have neither their domicile or quasi­ domicile in an eparchy of the patriarchate.

# 4. From other impediments the dispensation is reserved to the Apostolic See.

Because of their eminent position, sanctioned by the most venerable tradition of the Church, patriarchs have been granted ample faculties of dispensing from matrimonial impediments. Catholic patriarchs enjoy a power far more extensive than do their dissident counterparts. The ancient Eastern Churches did not know the concept of dispensation, i.e., relaxation of laws in individual cases. Practical necessity forced even the dissident Churches to grant matrimonial dispensations, although only within narrow limits. The application of such dispensations is not left to the free and personal exercise by the patriarch and other dissident hierarchs; they are forced to obtain the consent of their permanent synods or consistories. 69

LIMITS OF THE PATRIARCH’S ORDINARY POWER OF GRANTING DISPENSATIONS

I. IN RESPECT TO THE IMPEDIMENTS

The faculty of dispensing from matrimonial impediments accorded to patriarchs in # 2 comprises: I. Prohibitive Impediments: (1) the private vow of virginity, of perfect chastity, of not marrying, of embracing religious life, and of receiving the subdiaconate or a major order in rites in which clerics are obliged to celibacy (cf.c.48 # 1, n.2); (2) guardianship or legal relationship (c.49); (3) the public vow of chastity taken in a religious institute that does not enjoy papal exemption (c.188 # 1, n.2, Postquam Apostolicis). 2. Diriment Impediments: (1) nonage up to two years; (2) the public vow of chastity resulting from religious profession, even if it is the’ case of major (solemn) vows, provided the religious in­ stitute does not enjoy papal exemption (c.188 # 1, n.2, Postquam Apos­ tolicis). While in the canon law of the Latin rite Church all religious institutes with solemn vows enjoy papal exemption (c.615 CIC), in Orien­ tal canon law there are institutes with solemn vows (major profession) subject to the patriarch or even to the bishop (c.162 ss.Postquam Apos­ tolicis). Because of the existence of an intermediary hierarchical authority between the bishop and the Roman Pontiff, namely, the patriarch, there are more classes of relationships of religious institutes to the different degrees of hierarchy. Not all are actually in existence at this time, but theoretically the following are possible: I. Monasteries, in which the ancient rules and traditions of Eastern monachism are observed, could have the following juridical conditions: 1. A single monastery or confederation of monasteries of papal right, endowed with papal exemption. 2. A single monastery or confederation of monasteries of papal right, but without enjoying papal exemption. 3. Stauropegial monasteries or monasteries of patriarchal right 4. A monastery of eparchial (diocesan) right. II. Orders, in which major or solemn profession is made, but the constitution of which is that found in Latin rite orders: 1. Order of papal right, endowed with papal exemption. 2. Order of papal right, without papal exemption. 3. Order of patriarchal right. HI. Congregations, in which the members take minor or simple profession: 1. Congregation of papal right, endowed with papal exemption. 2. Congregation of papal right, without papal exemption. 3. Congregation of patriarchal right. 4. Congregation of eparchial right. 70

(3) the first kind of the impediment of crime (c.65, n.l); (4) the fourth, fifth and sixth degree of consanguinity in the col­ lateral line; (5) the second and the further degrees of the first kind of affinity (cf.c.67 # 1, n.l) and of all degrees of die second and third kind of af­ finity (c.67 # 1, nn.2, 3); (6) the second degree of public propriety; (7) spiritual relationship; (8) guardianship and legal relationship. 3. Marriage Form: The patriarch enjoys also the faculty to dispense from the form of the marriage contract established in c.90 # 1, n.2. He is admonished to make use of it only in extraordinary circumstances. In accordance with the axiom that who has the power to do more can also do less, he could, e.g., reduce the marriage form in justified in­ stances to the assistance of the pastor alone. Such a need occurs at the return of fallen-away Catholics who have contracted marriage before a dissident priest, and who cannot be persuaded now to go through the same ceremony again before a Catholic priest (cf. about this problem the commentary to c.91). In addition to the above enumerated impediments, from which the patriarch can dispense on the basis of ordinary (vicarious) jurisdiction, he could possess more ample ordinary power of dispensation in virtue of a special privilege, granted by the Holy See to die patriarchate, in addition to delegated power (Quinquennial and other faculties).

II. IN RESPECT TO THE RECIPIENTS The patriarch can grant dispensations to all subjects, i.e., members of his rite who have a domicile or quasi-domicile in any eparchy or exarchy of his patriarchate, wherever they are staying, and to all vagi. He can in addition also grant to individuals of his rite who at the moment are staying within an eparchy or exarchy of his patriarchate, although they are peregrins, i.e., have their domicile and quasi-domicile outside the patriarchate (#3), where they are subject to ordinaries of another rite or to ordinaries of the same rite who, however, are not under the jurisdiction of the patriarch.

III. IN RESPECT TO DELEGATION OF THE POWER The patriarch cannot appoint a syncellus (vicar general) to sub­ stitute him in his patriarchal jurisdiction (c.241 Cleri Sanctitati), since his authority is strictly personal. However, he can delegate his dispen­ sative faculties according to the general principles of delegation of juris­ diction (c.140 # 1 Cleri Sanctitati), IV. IN RESPECT TO CANONICAL CAUSE What was said in regard to local hierarchs concerning the necessity of a canonical cause in the granting of dispensations applies equally to patriarchs, because their power is also below that of the sole legislator, the Roman Pontiff. 71

3. WHICH ORDINARY IS COMPETENT FOR GRANTING DISPENSATIONS WHEN THE PARTIES BELONG TO DIFFERENT RITES AND DIOCESES # 5. If the parties belong to different eparchies of the same rite or of different rites, the dispensation is to be petitioned from the Hierarch of the man, and if the man is a non-Catholic, from the Hierarch of the woman.

Interpretation issued by the Pontifical Commission for the Redaction of the Code of Oriental Canon Law on May 3, 1953 (AAS, 1953, 312 and 313): Question I: Do the words of can.32 # 5, "the dispensation is to be petitioned from the Hierarch of the man9 exclude the power of the womans Hierarch to grant validly a dispensation from an impediment which affects only her? Answer: Negative.

Question II: Is the rule of can.32 # 5 to be applied when the contrahents are of the same rite but belong to eparchies of different rites? Answer: Affirmative. If the impediment is affecting solely one party, as, e.g., vow or non­ age, the dispensation is to be requested and granted by the proper or­ dinary of that party. If it is a correlative impediment, as, e.g., con­ sanguinity, affinity, etc., the principles of c.32 # 5 apply, as set forth below. The same holds true in the case of an impediment which is cor­ relative but exists only in the rite of one party. The various kinds of affinity (cf.c.67), which constitute impediments only in some Oriental rites, could serve as an example. The ordinary competent for dispen­ sation is to be determined according to c.32 # 5, even if the impediment does not exist in his rite (Galtier, p.76). “Rite” refers here not only to the great divisions of the Church,, as Byzantine, Armenian, Latin rite, but also to the subdivisions of a rite, as, e.g., in regard to the Byzantine rite, the Romanian or Melkite dis­ cipline, and in the case of Ruthenians going even farther, to the two jurisdictions of that discipline in the United States, the Ukrainian Ec­ clesiastical Province of Philadelphia and the Apostolic Exarchy of Pitts­ burgh. Since the wording of # 5 of c.32 was not considered clear enough, the Pontifical Commission for the Redaction of the Code of Oriental Canon Law issued an interpretation on May 3,1953 (AAS, 1953, 312-313), which is translated above. E. Herman, S.J. (Monitor Ecclesiasticus, 1953, p.579) summarized the rules of c.32 # 5 in the following way: 1. Both parties belong to the same rite and the same diocese: the ordinary of that diocese is competent. 2. Both parties belong to the same rite, but to different dioceses of the same rite: the dispensation is to be petitioned from the ordinary of the man, and, if he is a non-Catholic, from the ordinary of the woman. This refers, e.g., to the case of two Ruthenians of whom one is under the 72

jurisdiction of the Archdiocese of Philadelphia (Byzantine rite) while the other is under the jurisdiction of the Apostolic Exarch of Pittsburgh. However, c.88 # 3 CrAll permits in marriages of two Orientals of dif­ ferent rites, disciplines or jurisdictions that the competence can be de­ cided by lawful custom, and since the approved custom among Ruthenians demands that the marriage be entered into before the pastor of the bride, the above statement accordingly has to be corrected, so that in marriages of two Ruthenians the ordinary of the bride is competent to grant dispensations. 3. Both parties belong to the same rite, but to different dioceses of different rites: dispensation is to be requested from the ordinary of the man, if he is a Catholic. Practical cases under this heading can occur only if an Oriental, who is under the jurisdiction of a Latin rite ordinary, wishes to marry an Oriental of his own rite who is subject to an ordinary of the same rite, that is, a marriage between, e.g., the United States or Canada and a diocese in the Near East. 4. Both parties are of different rites but belong to the same diocese: the ordinary of that diocese is competent. 5. The parties are of different rites and belong to different dioceses of the same rite: the ordinary of the man is competent, if the latter is a Catholic. Such cases occur, e.g., in the United States when a Latin rite Catholic wishes to marry an Oriental Catholic who is under the juris­ diction of another Latin rite ordinary. 6. The parties belong to different rites and different dioceses of different rites: the ordinary of the man is to be approached for dispen­ sation. Under this heading come all cases where a subject of a Latin rite diocese and one of the Byzantine rite dioceses in the United States or in Canada are involved. # 6. He who is delegated for all cases does not enjoy the faculty to subdelegate unless it has been granted to him in particular cases.

In regard to the delegation of the faculty of dispensation enjoyed by local hierarchs and patriarchs cf. what is said above.

4.

LATIN RITE ORDINARIES AS DISPENSATORS FOR ORIENTAL RITE FAITHFUL

Latin rite ordinaries are not permitted to grant dispensations to non­ subject Oriental Catholics except (1) if it is the case of a mixed rite marriage and the groom is either of the Latin rite or of an Oriental rite over which the Latin rite ordinary has jurisdiction (c.32 # 5), or (2) if both parties belong to Oriental rites which are under the jurisdiction of the ordinary. Dispensations granted to non-subject Orientals, even if based on Quinquennial Faculties, are invalid. In the United States and Canada this will especially apply to instances in which: (1) both parties are subjects of the Byzantine rite bishops; (2) one party is a Byzantine rite Ruthenian (Ukrainian) Catholic while the other is a dissident Byzantine rite Ruthenian (Ukrainian);

73

(3) one party is a Byzantine rite Ruthenian (Ukrainian) Catholic while the other is a non-baptized person. If one party is a non-subject Oriental Catholic, while the other is a baptized Protestant, the dispen­ sation granted by the Latin rite ordinary will be valid since he has juris­ diction over baptized Protestants, but he would act unlawfully. Even if the dispensation is invalid, it does not follow that the mar­ riage is invalid too; this will depend on whether the impediment is a prohibitive or a diriment one (cf. the commentary to c.60). According to the opinion of Coussa (De Matrimonio, p.56), Latin rite ordinaries do not enjoy in regard to their Oriental rite subjects die ordinary power of dispensation accorded to Oriental rite local ordinaries in c.32 # 1 CrAll, since this power in ordinaries below the Roman Pon­ tiff and patriarchs is only an Oriental peculiarity. However, Latin rite ordinaries will enjoy the same and more extensive power in virtue of the Quinquennial Faculties, and according to cc.33 and 35 in danger of death and in urgent situations. Latin rite ordinaries who enjoy the power of granting dispensations from the degrees of the first species of affinity, i.e., that mentioned in c.1077 CIC, in virtue of Quinquennial Faculties can dispense also from the other two species of affinity (c.68 # # 2, 3, CrAll) their Oriental rite subjects according to the axiom that qui potest maius potest etiam minus. The problem of Latin rite ordinaries who grant matrimonial dispen­ sations to their Oriental rite subjects in virtue of Quinquennial Faculties received from S.Congregations who in part have no jurisdiction over Oriental Catholics is now resolved in the affirmative. The difficulty resulted from c.257 CIC ( — c.195 Cleri Sanctitati), which says that jurisdiction over Oriental rite Catholics is reserved to die S.Congregation for the Oriental Church, with the exception of matters coming under the jurisdiction of the Holy Office, the S.Penitentiary, and some other S. Congregations which have no connection with matrimonial matters. From this could follow that faculties originating from other S.Congregations, notably that for the Sacraments, have no bearing at all on Orientals, and Latin rite ordinaries could not use them in favor of their Oriental rite faithful. In the discussion of this problem Duskie, Gulovich, Ploechl, and Her­ man took part. Diederichs (The Jurisdiction, p.48) concludes: “Accord­ ingly the most feasible solution of this problem is for the Latin ordinaries who have Oriental subjects to ask the Sacred Congregation for the Ori­ ental Church to extend die use of these faculties also to their Oriental subjects.” Since this is not often done, another solution was proposed, consisting in a revision of the interpretation of c.257 # 1 CIC (= c.195 Cleri Sane· titati). The primary purpose of this canon was to reserve matters per­ taining to Orientals to a Sacred Congregation competent by speciali­ zation with such matters. There is no reason for such a reservation in cases where the Oriental rite as such does not enter the decision of a case, as in a dispensation from a marriage impediment. We can assume that the legislator granted to the S.Congregation for the Sacraments the necessary power since he knows the state of things existing for such a

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long time. This thesis was also held by Marbach (Marriage Legislation, p.223 ss). Another argument can be taken from the wording of c. 257 # 1. If it alone would be considered decisive, the implications would be more farreaching, because the Latin rite ordinaries could not make use of such faculties even in case of two of their subjects of whom one is of the Latin rite while the other belongs to the Oriental rite, because the exclusive competence of the S. Congregation for the Oriental Church in all such mixed matter is clearly established in c.257 # 1. The problem was given a decision by a letter of Cardinal Eugene Tisserant, then Secretary of the S.Congregation for the Oriental Church, dated July 24, 1948, and addressed to Archbishop Cushing of Boston. The text was published by J.F. Marbach in The Jurist (1949, 48-49). Hie Cardinal declared in that particular marriage case, the Latin rite ordinary was allowed to make use of the Quinquennial Faculties received from the S. Congregation for the Sacraments for Latin rite faithful also in favor of Orientals under his jurisdiction. This decision was made with reference to Art.9 of Orientalium Dignitas, No difficulty exists, of course, for Latin rite Ordinaries to dispense their Oriental rite subjects in virtue of c.81 CIC, if and when such rare circumstances occur.

5.

CAN DISSIDENT ORIENTAL HIERARCHS GRANT DISPENSATIONS?

The dissident Eastern Churches have retained so much of the doc­ trinal treasure of the Church, and their hierarchy has preserved the apostolic succession of valid orders, that not rarely is the question brought up, whether dissident bishops enjoy the power of granting dis­ pensations from the laws of the Church. In order to clarify this problem, it must first be stated that for Christ­ ians in the sphere of religion only those rules and regulations are laws, that is, have legal force, which are either issued by the Church, i.e., the Church headed by the Roman Pontiff, or at least have expressly or tacitly been approved by him if they come from some other material source. This is a consequence of fundamental dogmatical axioms taught by the Catholic Church. Dissident Orientals are bound by the canons in which they have been included, as it is the case with CrAll, and by those which antedate their separation from the Church. Possible dispensations granted among dissidents can therefore refer only to these laws, and in no in­ stance to some laws or regulations which have as their authors dissident synods, patriarchs or other bishops. Relative to marriage legislation, which now is contained for all Ori­ entals, Catholics as well as non-Catholic, in CrAll, the exercise of power of dispensation has to follow the law itself. A dispensation, for example, accorded by a dissident patriarch to an Oriental to marry a non-baptized person could not be valid because even Catholic Oriental hierarchs need to receive from the Roman Pontiff a special faculty for such dispen­ sations. It would be absurd to concede to non-Catholic bishops more power of dispensation than to Catholic ones. 75

Another reason for excluding the power of dispensation among dis­ sident Orientals is the principle that non-Catholic religious organizations and their functionaries, even if they should possess valid orders, have no legal standing whatsoever. The hierarchy of the dissident Orientals pos­ sesses no jurisdiction in the external forum, which fact precludes valid dispensation from the laws of the Church (Bibliography concerning this question may be found at Coussa, Epitome, I., p.24). This would be in­ consistent with the maxim that such jurisdiction gives the right, not only the mere power, to govern the faithful, and consequently the duty of the latter to obey their ecclesiastical superiors. Part of the jurisdiction in the external forum is die faculty authoritatively to teach and expound the Christian doctrine; to admit the existence of such power in dissidents, would be absurd (cf. St. Thomas Aquinas, II-II, q.XXXIX, Art.3). It is true that for the internal, sacramental forum for absolving from sins jurisdiction is supplied to the dissident clergy by the Church in order not to prevent the salvation of those souls who subjectively are innocent of schism or heresy. This does therefore not contradict the above estab­ lished lack of jurisdiction in the external forum, nor does the fact that sacraments administered by dissidents are generally efficacious, since jurisdiction is not needed at all, or is supplied tacitly in the case of con­ firmation. Should dissident Orientals join the Church by profession of Faith, their marriages will be valid except if there was a diriment impediment from which the dispensation had been granted by a dissident ecclesias­ tical authority.

POWER OF DISPENSATION IN DANGER OF DEATH Canon 33. When danger of death urges, the local Hierarch can, in order to promote peace of conscience, and, if it is the case, for the legitimation of the offspring, dispense from the form which is to be observed in contracting marriage, as well as from all and every single impediment of ecclesiastical law, public as well as occult, also multiple, with the exception of the impediments arising from the holy order of presbyterate, and from affinity, as mentioned in can. 68 # 1, in direct line, arising from consummated marriage — his subjects wherever they are staying, and all those who are actually staying in his own territory, if scandal is removed, and, in the case when a dispensation from the impediment of disparity of worship or of mixed religion is to be granted, after the prescribed guarantees have been given.

The contents of this and the following canon have been treated in the commentary to can.32. On the dispensation from the form cf.c.85. Canon 34. # 1. In the same circumstances as mentioned in can.33, and only in cases when not even the local Hierarch can be approached, the pastor as well as the vicar cooperator and the priest who assists at the marriage in accordance with can.89, n.2, and also the confessor, but the latter only for the internal forum in sacra­ mental confession, enjoy the same faculties to dispense.

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# 2. In the case mentioned in # 1, it is supposed that the local Hierarch cannot be approached if it is possible to reach him only by telegraph or telephone.

In accordance with c.34 # 1 the vicar cooperator or assistant pastor (curate) enjoys the same power of dispensation in cases of danger of death and in urgent cases (can.35 # 3) which is assigned to the pastor himself, regardless of whether delegation to assist at marriages has been granted to him or not. Example: Father Jacob was assigned as assistant to a parish and had received no delegation from the bishop or the diocesan statutes to assist at marriages. When he arrived at the rectory, the pastor was absent for two days. Father Jacob had therefore not yet received de­ legation from him for assisting at marriages when he was called to the hospital, where he was confronted with the necessity of convalidating the attempted marriage of Joseph with Anne, removing first the im­ pediment of crime. Father Jacob granted in accordance with c.34 # 1 the necessary dis­ pensation from the diriment impediment of crime and, since he had no power of assistance, he dispensed also in virtue of the same canon from the ecclesiastical marriage form (c.33). He blessed then their marriage, being aware that this "assistance” had no juridical but only a mere re­ ligious, liturgical, character, the same which is assigned to the “assisting” priest in c.89 (c.1098 CIC). Paragraph 2 of c.34 has no counterpart in the CIC. It contains a principle long ago adopted in moral theology and confirmed in a reply of the Code Commission on November 12, 1922 (AAS, 1922, 662).

POWER OF DISPENSATION IN CASE OF URGENCY Canon 35. # 1. The local Hierarchs can under the conditions stated at the end of can.33 grant a dispensation from all the impedi­ ments mentioned in can.33 as often as an impediment is discovered, or, although in advance known, the Hierarch or the pastor only then came to know it when everything has been prepared for the mar­ riage, and the marriage cannot be delayed, without the risk of a probable great harm, until a dispensation from the Apostolic See or from the patriarch has been obtained in regard to impediments from which he can dispense.

The Code Commission had issued an interpretation March 1, 1921 (AAS, 1921, 177) that the urgency mentioned in this paragraph could be invoked also in the case in which the impediment was known to the parties or other persons but came to the knowledge of the ordinary or pastor only when everything was set for the marriage. Neither makes it a difference whether the impediment was hidden unintentionally or maliciously. The power of dispensation is granted not only when the Holy See (or the patriarch) cannot be approached at all, but also when this is dif­ ficult; in other words, when ordinary mail service is interrupted, or when

77

a reply from Rome, using the public mail service, could not be received in time. # 2. This faculty holds good also for the convalidation of a marriage already contracted, if the same danger in delay exists and there is not enough time to have recourse to the Apostolic See or to the patriarch in regard to impediments from which he can dispense.

The serious harm which is mentioned as a possible occurrence if the convalidation is delayed because of the necessity to have recourse to the Holy See or the patriarch is verified also if it is of a spiritual nature, as, e.g., incontinence; scandal because the invalidity is publicly known. # 3. All who are mentioned in can.34 # 1 enjoy the faculties in the same circumstances under the conditions of the same canon, but only if the case according to its nature, or in fact only, is occult, and not even the local Hierarch can be approached according to can.34, or only with the risk of violating a secret.

The insertion of “sub eiusdem canonis clausulis”, which is not found in c.1045 # 3, refers back to c.34 # 1 (c.1044 # 1 CIC), but has as only sequel that the meaning, otherwise clear, has been made even more ex­ plicit. The meaning of the occult case was enlarged by the addition of “natura sua vel tantum facto”, which corresponds to the declaration of the Code Commission of December 28, 1927 (AAS, 1928, 61). Such dis­ pensations can be granted not only from impediments that are by nature occult, but also from those which are by nature public but in fact are in the respective instance occult (cf. commentary to c.27). # 4. The power of the Hierarchs to dispense from the form to be observed in contracting marriage and from impediments of ecclesiastical law from which the Apostolic See is accustomed to dispense, is not abolished by the faculty contained in # 1 when an application to the Apostolic See or to a legate of the Roman Pontiff endowed with the necessary faculty is difficult, and at the same time there is danger of serious harm in delay.

The ordinary can grant dispensations usually conceded by the Ro­ man Pontiff even in the case in which not everything is prepared for the wedding, but there is danger in delaying it (Code Commission, July 12, 1942, Ad.I - AAS, 1942, 241). The question whether the ordinary can dispense from the marriage form itself, which is mentioned in c. 1943 but not in c.1045 CIC, was re­ solved in this paragraph affirmatively in this sense: that he can permit a marriage to be contracted without observance of the form if neither the Holy See, the patriarch nor a delegate of either can be reached.

CANON 35 CREBRAE ALLATAE AND CANON 81 OF THE LATIN CODE Canon 81 grants to ordinaries the power of dispensing from general laws of the Church, provided it is a case of a dispensation which the Church is wont to grant, whenever recourse to the Holy See is difficult 78

because the delay would probably result in proportionally serious harm. This canon received special scrutiny and application during World War II, and is also applicable today, e.g., in the conditions existing for the Church in countries oppressed by Communist dictatorships.

While c.81 CIC grants power of dispensation in regard to all gen­ eral laws of the Church, c.35 CrAll grants dispensative faculties in re­ lationship to matrimonial impediments and the marriage form. How­ ever, c.81 CIC limits the faculty to dispensations usually granted by the Holy See, while c.35 CrAll assigns wider limits, excluding only certain, expressly enumerated impediments or degrees of impediments.

According to an interpretation of the Code Commission of Jan. 26, 1949 (AAS, 1949, 158) the Holy See does not grant usually, although she does so sporadically, dispensations from the obligation of celibacy re­ sulting from the orders of deacon and subdeacon, and from religious vows reserved to the Apostolic See. However, since these impediments are not excluded from the ordinary’s power of dispensation in c.35 (or c.33) CrAll, they can make use of it whenever the conditions of c.35 are verified. While c.35 CrAll refers to the case when a marriage or convalidation of a marital union was in preparation, c.81 can be made use of also in the case when no arrangements had been made as yet, but when there is probable harm to be expected from the delay. The ordinary can make use of the faculties of c.34 # 4 only if recourse to the Apostolic See is difficult and serious disadvantage would result from the delay. This difficulty does not exist whenever the ordinary could easily reach the representative of the Holy See for that region (nuncio, inter-nuncio, apostoHc delegate), according to a decision of the Code Commission of June 26,1947 (AAS, 1947, 374), if the legate has an opportunity to forward the request to the Holy See.

What, however, is the ordinary’s power in the case where not even through the legate of the Holy See a reply could be received in time, but the dispensation could be obtained from the legate himself, to whom such faculties were granted? Several canonists (E. Regatillo, S.J., A. Van Hove, L. Rodrigo, S.J.) hold that the ordinary need not apply to the legate, but may grant the dispensation himself in virtue of c.81 CIC (cf. R. P. Roberts, S.J., p.24).

NOTIFICATION OF ORDINARY Canon 36. The pastor, the vicar cooperator or the priest men­ tioned in can.34 shall at once notify the local Hierarch of the dis­ pensation granted for the external forum; it shall also be recorded in the marriage register.

The insertion of the vicar cooperator, not contained in the cor­ responding c.1046, was needed because of the power of dispensation granted to him in c.34 CrAll.

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POWER OF THE S. PENITENTIARY Canon 37. Unless the rescript of the Sacred Penitentiary or of the patriarch or the local Hierarch, within the limits of the com­ petence of each one of them, disposes otherwise, the dispensation from an occult impediment granted for the non-sacramental internal forum is to be recorded in a book which shall be diligently kept in the secret archives of the chancery, and there is no need of another dispensation in the external forum although afterwards the occult impediment became public; this is, however, necessary if the dis­ pensation was granted for the internal sacramental forum only.

The additions to the text of this canon, not found in c.1047 CIC, were necessitated because of the ordinary power of dispensation enjoyed by Oriental rite patriarchs and local ordinaries (cf.c.32).

CONCURRENCE OF POWER OF DISPENSATION Canon 38. # 1. If the petition for a dispensation has been sent to the Apostolic See, the local Hierarchs shall not make use of their faculties, if they have such, except for a serious and urgent reason, in which case they shall immediately inform the Apostolic See of it. # 2. The same shall be observed by the local Hierarchs subject to a patriarch, if the petition for a dispensation has been sent to the patriarch.

If a reply from the Holy See or the patriarch has not yet arrived while the circumstances defined in cc.33 or 35 have been verified, the ordinary can make use of his power of dispensation at once. Since the patriarch is not included in the definition of “local Hier­ arch** (c.306 # 1, n.2, of Postquam Apostolicis), it can be questioned if he is obliged to await the decision of the Holy See before making use of his dispensative faculties when it is not a grave and urgent matter. Coussa (De Matrimonio, p.70) extends the obligation defined in c.38 also to patriarchs. Local hierarchs are not forbidden to request dispensations from the Roman Pontiff even if they could receive them from their patriarch, al­ though the fact that either the law or the Roman Pontiff have granted to the patriarch such power is an indication that bishops subject to him ought to apply themselves to their immediate superior.

DISPENSATION FROM MULTIPLE IMPEDIMENTS Canon 39. # 1. In marriages, whether already contracted or to be contracted, he who enjoys a general indult for dispensing from a certain impediment can dispense from it although the same impedi­ ment is multiple, unless the indult itself expressly provides otherwise. # 2. He who has a general indult to dispense from several impediments of different kinds, either diriment or prohibitive, can dispense from these impediments even though they are public and occult in one and the same case.

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PUBLIC AND OCCULT IMPEDIMENTS Canon 40. If with one or more public impediments from which somebody can dispense on the strength of an indult there occurs another impediment from which he cannot dispense, the superior who can dispense from all has to be approached for all of them. If, however, the impediment or impediments from which he can dispense are discovered only after dispensation has been petitioned from this superior, he may make use of his faculties.

Because Oriental rite patriarchs and local Hierarchs possess also ordinary power of dispensation, and c.40 speaks of dispensative faculties enjoyed in virtue of an indult, they are not prevented, in the case of con­ currence of several impediments, from granting dispensations from im­ pediments for which they enjoy ordinary power of dispensation, and can apply to the superior authority only for those for which neither their ordinary nor their delegated powers are sufficient.

IMPLICIT LEGITIMATION Canon 41. By a dispensation from a diriment impediment granted in virtue of ordinary power delegated in the form of a gen­ eral indult, yet not by means of a rescript in particular cases, the legitimation of the offspring is also granted, if already born or con­ ceived by those to whom the dispensation was granted, except, how­ ever, the adulterous and sacrilegious one.

IMPLICIT DISPENSATIONS Canon 42. The dispensation from the impediment of consanguin­ ity or affinity, granted for some degree of the impediment, is valid, although in the petition or in the concession there occurred an error concerning the degree, provided the degree that actually exists is inferior, or though another impediment of the same species of equal or inferior degree has been concealed.

When a couple to be married are multiple blood relations, i.e., be­ cause they have more than one common ancestor, or if they are related by multiple affinity, which is a sequel of multiple consanguinity, the multiplicity of these impediments is to be stated in the petition for dis­ pensation. If some of the impediments were not mentioned, in good or bad faith, the dispensation granted will be valid provided it regards the same kind of impediment, and a degree equal or higher to the one not mentioned; if the dispensation was granted for a lower degree, the im­ pediment of the higher degree is not dispensed. However, if it is a minor impediment, the dispensation will always be valid (cf.c.44). The question was asked whether c.1052 CIC should be understood in such a manner: that the dispensation granted under these conditions, i.e., when another impediment of the same species in an equal or an in­ ferior degree was concealed, in good or bad faith, is simply valid, or that, in addition to its valid dispensation, also the other impediment can be

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regarded as dispensed. The Code Commission answered July 8, 1948 (AAS, 1948, 346) that a new dispensation for the other impediment (of equal or lower degree) need not be requested. Although this reply was not inserted in c.42, the decision of the Code Commission holds true also for the Oriental Church (Coussa, De Matri­ monio, p.72). The generosity of c.42 (c.1052 CIC) was not known to the canon law before the CIC, and dispensations granted by Oriental rite hierarchs before May 2, 1949, must be judged in accordance with the old law, as it was done in several instances by the S.Roman Rota (cLGaltier, pp.94 -95). In cases of Oriental rite parties related by multiple consanguinity dispensations had been obtained from the higher degree of the impedi­ ment, but not from the lower degree. The S.R.Rota declared such mar­ riages invalid on account of the remaining undispensed diriment impedi­ ment (SRR. Decisiones, 1934, (XXVI), Dec. LVII, p.488 ss; 1937 (XXIX), Dec. XVI, No.3, p.160). Canon 43. The dispensation given by the Apostolic See from the matrimonium ratum et consummatum, or the permission to enter a new marriage on account of the presumed death of the spouse, even though given by someone inferior to the Apostolic See who is entitled to, always includes the dispensation from the impedi­ ment mentioned in can.65, n.l, if it is needed.

Can.1053 CIC decrees that an implicit dispensation from the first species of the impediment of crime (c.65, n.l = c.1075, n.l, CIC), i.e., adultery with marriage either promised or attempted, is always auto­ matically conceded when the Holy See has granted a dispensative dis­ solution of a non-consummated sacramental marriage, or has issued a presumptive declaration of death of a spouse. Can. 43 has an addition which extends this automatic dispensation also to the permission grant­ ed by other authorities, i.e., the patriarch or the local hierarch, to enter a new marriage because of the presumption that the other spouse has died. The Code Commission declared March 26, 1952 (AAS, 1952, 496) that this extension has validity also for the Latin rite Church.

MINOR IMPEDIMENTS Canon 44. A dispensation granted from a minor impediment is not invalidated by deception or by concealment, although the one sole motive advanced in the petition is false.

The present canon abrogates in the instance of minor matrimonial impediments the general principle that a dispensation granted by a su­ perior who is not the lawgiver is invalid if any canonical cause was ab­ sent. Such dispensations will be valid, although unlawful, even though the only reason for the dispensation was maliciously non-existent. It does not matter whether such dispensations from matrimonial impediments were granted by the local Hierarch (the normal case), the patriarch or the Holy See. Which matrimonial impediments are minor is defined in c.31. It could happen that in a mixed rite marriage a minor impediment ac­ 82

cording to the Latin canon law is a major one according to Oriental law, as, e.g., consanguinity of 2/3 degree Latin computation — fifth degree Oriental computation. The validity of a dispensation granted under the conditions contemplated in c.44, i.e., presence of deception or conceal­ ment of sole motive submitted in petition, will then depend on whether the dispensing ordinary is of the Latin rite ( = minor impediment) or of an Oriental rite ( = major impediment).

FORMAL REQUIREMENTS Canon 45. Dispensations from public impediments forwarded to the Hierarch of the petitioners shall be executed by the Hierarch who gave the letters of recommendation or who forwarded the peti­ tion to the Apostolic See or to the patriarch, though by the time the dispensation is to receive execution the parties have left the domicile or quasi-domicile in that eparchy and have gone to another eparchy with the intention of not returning again; the Hierarch of the place, however, where they wish to contract the marriage is to be informed of it. Canon 46. With the exception of a small offering for the ex­ pense of the chancery for dispensations in favor of those who are not poor, the local Hierarchs and their officials cannot exact any fee on the occassion of granting a dispensation, and every contrary custom is to be considered abolished, unless they have obtained an explicit permission from the Apostolic See to do so, or unless it has been determined or sanctioned by approved synods. If they unlawfully exact anything, they are obliged to restitution.

Canon 47. He who grants a dispensation in virtue of delegated power shall make explicit mention of the indult of the delegating superior.

The sole differences found in these canons in comparison with their counterparts in the CIC are an expression of the need to take cogni­ zance of the fact peculiar to Oriental marriage law, whereby delegated power of granting matrimonial dispensations can originate not only from the Apostolic See but also from die patriarch and even from the local ordinary (in virtue of c.32).

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CHAPTER THREE

THE PROHIBITIVE IMPEDIMENTS (cc.48 - 56) Simple Vows (c.48 = cf.c.1058 CIC) Guardianship and Adoption (c.49 = c.1059 CIC) Mixed Religion: 1. General Prohibition (c.50 = c.1060 CIC) 2. Conditions for Dispensation (c.51 = c.1061 CIC) 3. Obligation to Convert Spouse (c.52 = c.1062 CIC) 4. Prohibition of Non*Catholic Rites (c.53 = c.1063 CIC) 5. Duties of Pastors Concerning Mixed Marriages (c.54 = C.1064 CIC) Marriages with Lapsed Catholics and Members of Condemned Socie­ ties (c.55 = c.1065 CIC) Marriages with Public Sinners (c.56 = c.1066 CIC)

SIMPLE VOWS Canon 48. # 1. Marriage is forbidden because of 1. a public vow of perfect chastity taken in simple or minor profession; 2. a private vow of virginity, of perfect chastity, of not marrying, of embracing religious life, and of receiving the subdiaconate, or a major order, in those rites where clerics after the reception of the order of subdiaconate are obliged to observe sacred celibacy. # 2. No vow, except a solemn vow, that is, which is taken in major profession, invalidates marriage, unless it has been so established for particular cases by a special act of the Apostolic See.

The Oriental codification has changed the expression impedimentum impediens, which actually did not impede marriage, to impedimentum prohibens, which is more in agreement with the legal implications. Another textual change was the express distinction introduced in the canon between the public vow of chastity, which is taken solely in the religious profession, and the various private vows the object of which excludes marriage. The term of “rite”, as mentioned in # 1, n.2, is ambiguous. Some­ times it refers to a group different from any other in its historical origin, liturgical rite, hierarchical organization, e.g., the Armenian rite, the Coptic rite, and others. At other times it may cover perhaps only a single ecclesiastical province or a diocese of a larger rite. While the Byzantine rite as such permits the clergy to continue marriages entered 84

into before receiving the order of subdeacon, certain subdivisions of the Byzantine rite, as, e.g., the Ukrainian dioceses in the United States, are ordaining only unmarried candidates, celibate or widowers. Other groups again may promote to the order of permanent subdeacon or deacon married men, while the presbyterate is reserved to celibate or widowed candidates. Whether therefore in a given case the vow of becoming a Byzantine rite priest will constitute an impediment in the meaning of c.48 will depend entirely on the intentions of the can­ didate who has made it, or on the local circumstances in which he made it. It is also not clear whether the policy of ordaining only un­ married candidates, as followed in a certain subgroup of a rite, does establish the impediment. We would suggest that only decisions of the Holy See, expressly excluding absolutely the ordination of married candidates, or confirmation of such synodal decrees by the same authority, would be a sufficient foundation of the impediment. Mere directions that married men should not be ordained, or that unmarried ones should be preferred, would not constitute the impediment.

GUARDIANSHIP AND ADOPTION Canon 49. In those countries in which by civil law marriage is forbidden on account of guardianship or legal relationship re­ sulting from adoption marriage is by canon law unlawful.

There are two kinds of legal relationships: one resulting from adoption, and another as a consequence of guardianship. Witness to the importance attached to legal relationships in the Christian East are the liturgical formularies of prayers for the blessing of the act of adoption. Legal relationship based on adoption is called that kind of quasi­ blood relationship which results between the person adopted on one side, and the adopting person on the other side, as well as his relations by blood (consanguinity) and marriage (affinity). This legal relation­ ship constitutes in some nations a matrimonial impediment according to civil law, either a diriment impediment or a prohibitive one. Depend­ ing on the respective law, it will impede or forbid marriage to a closer or further degree of consanguinity or affinity, in the direct line as well as in the oblique. Similar legislation forbids or impedes in some countries marriage between the guardian and his ward, and perhaps even between the guardian and his blood relations, e.g., his son or daughter and the ward. Whenever civil law establishes legal relationship resulting from adoption or guardianship as a marriage impediment, it will also exist for the realm of canon law. Whether it will be a diriment impediment (cf.c.71), or a prohibitive one, will depend on the tenor of the respec­ tive civil legislation. As long as the impediment exists according to civil law, dispensation from the ecclesiastical matrimonial impediment can be granted for Catholics (and other baptized persons) only by the Church. This holds true even in the case where civil law authorities too grant dispensations. However, in some countries the civil matrimonial impediment can be

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removed indirectly: with the permission of a court or an administrative agency the adoption or the guardianship as such can be dissolved, thereby removing the basis for the impediment itself. Such a pro­ cedure removes also the ecclesiastical matrimonial impediment. Adoption is a diriment impediment in the Commonwealth of Puerto Rico, but not in any other part of the United States.

MIXED RELIGION Canon 50. The Church forbids most severely everywhere the entering of marriages between two baptized persons, one of whom is a Catholic, the other a member of a heretical or schismatical sect. If there is danger of perversion for the Catholic spouse or the offspring, such a marriage is forbidden already by divine law itself. Canon 51. #1. The Church does not dispense from the impedi­ ment of mixed religion unless: 1. just and grave reasons urge; 2. the non-Catholic party has given guarantees to remove all danger of perversion to the Catholic spouse, and both spouses to have all offspring baptized and reared only as Catholics; 3. there is moral certainty that the guarantees will be fulfilled. # 2. The guarantees are as a rule to be given in writing. Canon 52. The Catholic spouse has the obligation prudently to strive after the conversion of the non-Catholic spouse.

The legislation concerning marriages with non-Catholics follows principles based on divine law. The Oriental Catholic Churches have in the matter of such marriages therefore adopted a legislation identical to that of the Latin rite Church as established in the CIC. Canon 53. # 1. Although the dispensation from the imped­ iment of mixed religion has been obtained from the Church, the parties cannot approach, before or after the marriage has been entered into before the Church, either in person or through proxy, a non-Catholic minister in his ecclesiastical capacity to give or renew the marriage consent.

# 2. If the pastor knows for certain that the parties will violate or have already violated this law, he shall not assist at their marriage, except for very grave reasons, only after scandal has been removed and the Hierarch has been previously consulted. # 3. It is not disapproved if the spouses, because civil law decrees so, appear also before a non-Catholic minister who acts solely in his capacity of a governmental official, and this only in performing the civil act, in order to ensure the civil legal effects.

A Catholic priest can also sometimes be placed in the position to function as a mere representative of the civil government, with exclu­ sion of his religious character. This will happen, e.g., in the United States, when a Catholic couple divorced from each other and then return again 86

to common life. In order to regain the civil legal effects of married people they must take out a new marriage license. The Catholic priest, who does not have to be necessarily the pastor, will in such a case function solely as civil magistrate, witness their exchange of consent as an act de praesenti, record their marriage in the books for this pur­ pose, notify the state official in charge of recording marriages, but will refrain from any religious rite, which would be superfluous. Canon 54. Hierarchs and other pastors of souls shall: 1. deter the faithful as much as they can from mixed mar­ riages. 2. If they cannot prevent them, they shall by all means see to it that they are not entered into contrary to the laws of God and the Church. 3. After a mixed marriage has been contracted in their own or in the territory of others, they shall earnestly watch that the parties live up to their given promises.

The last section of the corresponding c.1064 CIC was omitted: “In assisting at such marriages (the ordinary and other pastors of souls) are to observe the prescription of c.1102”. The cited canon permits the liturgical rite for mixed marriages only as an exception. Oriental tradition does not know a marriage contracted without a liturgical rite, and assigns the same liturgical form to all marriages alike. Canon 55. # 1. The faithful shall be discouraged from con­ tracting marriages likewise with those who have notoriously either abandoned the Catholic faith, though they might not have joined a non-Catholic sect, or have enrolled in societies condemned by the Church.

# 2. The pastor shall not assist at the mentioned marriages without having consulted with the Hierarch, who, considering all the circumstances of the case, may permit him to assist at the marriage, provided a grave reason urges, and the Hierarch judges according to his prudent opinion that the Catholic education of the entire off­ spring and the removal of the danger of perversion to the other party is sufficiently assured. Canon 56. If a public sinner or a person notoriously affected by a censure refuses previously to go to confession or to be recounciled with the Church, the pastor shall not assist at his marriage, unless a grave reason urges, concerning which he shall consult with the Hierarch if it can be done.

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CHAPTER FOUR

THE DIRIMENT IMPEDIMENTS (c.57 - 71)

Nonage (c.57 = c.1067 CIC) Impotence (c.58 = c.1068 CIC) Bond of Previous Marriage (c.59 = c.1069 CIC) Disparity of Worship (cc.60, 61 = cc.1070, 1071 CIC) Sacred Orders (c.62 = c.1072 CIC) Solemn or Major Profession (c.63 = c.1073 CIC) Abduction (c.64 = c.1074 CIC) Crime (c.65 = c.1075 CIC) Consanguinity (c.66 = c.1076 CIC) Affinity (cc.67, 68 = cf.cc.1077, 97 CIC) Public Propriety (c.69 = c.1078 CIC) Spiritual Relationship (c.70 = c.1079 CIC) Guardianship and Adoption (c.71 = c. 1080 CIC)

NONAGE Canon 57. # 1. A man before completing his sixteenth year of age, a woman before her fourteenth year of age, also completed, cannot validly enter marriage.

# 2. Though marriage contracted after the mentioned age is valid, the pastors of souls shall take care to dissuade young people from contracting marriage at an earlier age than is commonly the recognized custom of the respective country.

Here belongs also what is said in the commentary to c.24.

IMPOTENCE Canon 58. # 1. Antecedent and perpetual impotence, either on the part of the man or the woman, whether known to the other or not, and whether absolute or relative, annuls marriage by the law of nature itself. # 2. If the impediment of impotence is doubtful on account either of a doubt as to law, or of a doubt as to fact, the marriage is not to be hindered.

# 3. Sterility neither invalidates nor forbids marriage.

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LIGAMEN Canon 59. # 1. Who is held by the bond of a previous mar­ riage, though a non-consummated one, attempts marriage invalidly, without prejudice to the Privilege of the Faith. # 2. Though the previous marriage be invalid or dissolved for any reason, it is still not permitted to contract another before by legal and certain proof the invalidity or the dissolution of the first has been established.

There can be no difference between the Oriental and the Latin rite Churches on the impediment of the marriage bond. According to the authentic declaration of the Catholic Church the teaching of the Gospel is to be understood in the sense that a valid and consummated marriage of two baptized persons cannot be dissolved by any human authority, civil or ecclesiastical. The question which evidence shall be considered sufficient to prove the presumed death of a spouse is not easy to answer in the numerous cases of recent immigrants to the United States and Canada who came from countries behind the Iron Curtain. Since the resumption of postal communication with the Soviet Union it is now possible to receive pri­ vate letters, usually worded very cautiously. Considering that the per­ sons requesting in the United States and Canada permission to be mar­ ried in Church on the basis of a presumed death of their spouses do so mainly out of spiritual, religious motives, the formal procedural require­ ments can and ought be simplified, and proofs accepted which would be regarded insufficient in a normal judicial procedure. We have to distinguish two procedures different as to their aim: (1) One is the gathering of evidence to proof the death of a spouse in the absence of public documents, ecclesiastical or civil. There is no doubt that the death has occurred, time and place are known, but no document is available. It is necessary in such cases to furnish proofs, e.g., testimony of witnesses, which will supplement and replace the lacking documentary evidence. (2) The other is the weighing of conjectures, set up on the strength of testimony of witnesses, various documents, etc., which will permit to draw a reasonable conclusion that the spouse has died, although the fact of his death has remained unknown. The lack of any word, letter, report, information, from the spouse can reasonably be explained only as caused by his death. This is the procedure of granting permission to remarry in view of a presumption of death. The Archdiocese of Philadelphia (Byzantine rite) has summarized its experience gathered in the dealing with cases of lacking documents and of presumption of death in the following rules contained in the Statutes of 1959: “7. Proofs of freedom to marry of widowed persons Canon 367. Documentary proof of death of a spouse shall be proved according to the following principles: 1. The most direct way of proving that a previous marriage was dissolved by death is by an ecclesiastical certificate of death or another authentic document. 89

2. Besides documents issued by ecclesiastical authorities, documents issued by civil authorities may also be accepted, e.g., a death certificate from the Bureau of Vital Statistics, from a public hospital, from a con­ sulate, from a military agency, etc. This document must contain all the facts of death: person, place, time, cause, without reference to any other source, and if the deceased was a Catholic, the reason for the unavailab­ ility of an ecclesiastical certificate must be given. Moreover, if issued by an authority outside of the United States, this document shall be sub­ mitted to the Chancery for examination.

Canon 368. Proof of death of a spouse by the testimony of witnesses shall be established according to the following rules: 1. If the fact of death is certain, but a document by which it could be proved is unobtainable, the testimony of witnesses who have know­ ledge of the death can be accepted as proof. This is not a “Declaration of Presumed Death”, in which the death is declared to have taken place by virtue of a presumption, i.e., a reasonable conclusion drawn from known facts surrounding an uncertain matter. 2. At least two reliable witnesses are required, but one may be suf­ ficient, if his deposition contains all the necessary facts and his trust­ worthiness as a witness cannot be challenged. 3. Preference is to be given to eyewitnesses; hearsay witnesses may also be admitted, depending upon the nature of their testimony and in­ dividual credibility. 4. The deposition is to be submitted to the Chancery for exami­ nation and confirmation. Examples of Depositions (I) “I know that before World War II Bohdan was a widower. He had mentioned it to me in 1938. I heard the same thing from his sister and her husband sometime during the War. I remember being told that his wife died from typhoid fever.” (II) "I know that Adam died because I attended his funeral. It took place in Vienna during the Easter season of 1943. I did not see his dead body, since I hardly arrived in time to accompany, to­ gether with his family and friends, the casket bearing his body to the grave at the Central Cemetery. The funeral services were con­ ducted by Father Nashta, who is still residing in Vienna.” (Ill) “I know that Eve died, because my sister Ann, who worked at the same factory with her, told me so. Although she did not attend the funeral, she collected money from the employees at the factory for a wreath. The employees who attended the funeral and placed the wreath upon the grave related this to Ann, who in turn told it to me.” (IV) “From my own experience I know that Elias is dead. He was a commissioned officer of the same unit in which I was a non­ commissioned officer. Although there were many of us, I knew him well because he and I attended a special class for tank drivers. About February 25,1944, we had to cross the Dniper river. During the fighting I stumbled upon his body near a demolished hospital. Though a large portion of his skull was shattered, I was able to re­ 96

cognize him distinctly, because his face and other parts of his body were not disfigured. The men frequently spoke of the manner in which he was killed”

Canon 369. The declaration of presumed death of a spouse is gov­ erned by the following norms: 1. If an attempt to obtain a declaration of presumed death is being made, but no witnesses to the alleged death are available, or the testi­ mony of the witnesses introduced is irrelevant or mutually contradictory, the matter shall be submitted to the Chancery. 2. In order hat a declaration of death may be pronounced with moral certitude by virtue of a presumption, it is necessary that the diverse circumstances surrounding a persons prolonged absence would not reasonably allow a contrary conclusion. 3. A declaration of presumed death issued by civil authorities does not have any juridical value or force before the Church. Nevertheless, ecclesiastical authorities make use of the evidence gathered by the civil authorities as proof for establishing the presumed death if the evidence meets with the requirements of canon law.”

DISPARITY OF WORSHIP Canon 60. # 1. The marriage contracted by a non-baptized with a baptized person is null. #2. If a party at the time of the marriage was commonly held to have been baptized, or if his baptism was doubtful, the validity of the marriage, according to the rule of canon 3, shall be upheld until it is proved with certainty that one party was baptized and the other was not baptized.

Canon 61. The prescriptions of canons 50 - 54 for mixed mar­ riages are to be applied also to marriages which are opposed by the impediment of disparity of worship.

1. DIFFERENCE BETWEEN CREBRAE ALLATAE AND THE LATIN CODE

While in c.1070 # 1 CIC all non-Catholics are exempt from the diri­ ment impediment of disparity of worship when they marry among them­ selves, c.60 # 1 affirms the ancient tradition of the East as well as of the West (up to the promulgation of the CIC): that marriages between bap­ tized and non-baptized persons are invalid, except if a dispensation has been granted by legitimate ecclesiastical authority. The diriment impediment of worship disparity did not exist, of course, in the first days of Christianity, primarily because there were not enough baptized faithful for a convenient choice of marriage partners, and marriages with non-baptized were consequently unavoidable. The prohibitive impediment of divine law existed, however, always, forbid­ ding marriage if there was danger of perversion in faith to the Catholic party or the offspring. 91

Legitimate ecclesiastical authority with power of granting dispen­ sations exists, according to the dogmatic principles of the legislator of Crebrae Allatae, only in the Catholic Church. Dissident bishops, even though perhaps validly ordained, have no power of granting dispen­ sations. Actually, Oriental dissidents usually do not dispense from this impediment, and insist rather that the non-baptized party to a marriage receive first baptism. Disparity of worship is a diriment impediment not only for Cath­ olics of Oriental rites, but also for non-Catholic Orientals as well. CrAll is the marriage law for all persons baptized in an Oriental rite, Cath­ olics as well as non-Catholics. Can.60 #1 does not restrict the impedi­ ment to marriages of non-baptized persons with Catholics, but invalidates all marriages where one person is baptized, i.e., in any Catholic or non­ Catholic Oriental rite or group, and the other person is not baptized. This is based on the dogmatic postulate that baptism validly conferred by anyone makes the baptized person a member of the Catholic Church, and thereby automatically also subject to all laws enacted by the Church, unless the Church has not expressly declared them immune and exempt from some laws, as, e.g., this was done in reference to the obligatory marriage form (cf.c.90 # 2). The reason for this difference between the CIC and CrAll is not only the wish of the Church to uphold genuine Oriental tradition, but also the different actual situation of non-Catholic Orientals compared with that of non-Catholic Occidentals, chiefly Protestants. Among the latter many are found to be not baptized at all, or baptized invalidly, so that marriages among them would often be invalid. This was also the reason why the legislator changed the law in force before the CIC and made them in c.1070 # 1 CIC exempt from the impediment of disparity of worship. Non-Catholic Orientals on the contrary did not desert die ancient doctrinal tradition concerning the sacraments, they baptize validly, and there are no more non-baptized persons found among them than among Catholics. Marriages with non-baptized persons are, in accordance with local custom, rarer than among Cath­ olics. The Church had therefore no motive for exempting them from the diriment impediment of disparity of worship. How can we establish whether a non-Catholic marriage is gov­ erned by c.60 # 1 CrAll or by c. 1070 # 1 CIC? We have to find out whether the non-Catholic was baptized in an Oriental or an Occidental non-Catholic denomination. This can be determined by answering the question: was it a sect which split from the Eastern or the Western Church? If the denomination traces its origin to the Latin rite Church, those who received baptism in this denomination are subject to the CIC. If it is a religious organization which originated from the ancient Orien­ tal Churches, those who were baptized in such a denomination are sub­ ject to the marriage law applied to Oriental Catholics. Practical consequences of this distinction are important, as it is shown in the following example: Eve, a non-baptized Protestant, married John, a baptized non-Catholic Oriental, before a justice of the peace. They afterwards divorced, and she intends to marry a Catholic. Since John as a baptized Oriental was bound by c.60 # 1 CrAll, Eve’s mar­ riage to him was invalid, and she may marry again in the Catholic Church.

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The line of separation between the two groups of baptized non­ Catholics as drawn by the difference between c.60 # 1 CrAll and c.1070 # 1 CIC, is the affirmation of another principle of great theoretical and practical implications, namely, that the CIC is not the law of the Church as such, but only or primarily of the Latin rite Church. It is true that the CIC contains many prescriptions which apply also to Orientals, but as a whole it is not a supra-ritual law, and although it contains in some instances inter-ritual law, it is but the code of laws of the Latin rite. A further consequence is the justified assumption that there exist rites in a juridical sense not only within the Church, i.e., that organization which actually acknowledges the primacy of the Roman Pontiff, but also outside the Church. As to Orientals, this was already established by several legislative acts of the Holy See issued during the 19th century. 2. DISPENSATION FROM THE IMPEDIMENT

Dispensation from the impediment of c.60 # 1 can be granted to Orientals, in virtue of general or special faculties of the Holy See, only by that local ordinary who has jurisdiction over them. If we apply this to the United States and Canada, Latin rite ordinaries will validly grant such dispensations only to those Orientals who are subject to their jur­ isdiction. Dispensations granted by them to subjects of the Byzantine rite (Ruthenian-Ukrainian) dioceses are invalid. Replies of the Holy Office to several Latin rite ordinaries, in resolving marriage cases brought before the Holy See, have confirmed the principle that the faculties granted them by the Roman Pontiff and his offices can be used by the ordinaries only in respect to persons not exempt from their jurisdiction (cf. The Jurist, 1960, p.82). Since Byzantine rite (UkrainianRuthenian) Catholics are in these two countries under the exclusive jurisdiction of their own bishops, they can benefit from apostolic fac­ ulties only through their own ordinaries. The situation is analogous in Great Britain, where the Archbishop of Westminster is Apostolic Exarch for the Byzantine rite Ukrainians. His jurisdiction as an Exarch extends beyond the territorial limits of his own Archdiocese, and comprises England and Wales. By tacit concession also the Catholic Ukrainians in Scotland are governed by him through his Syncellus or Vicar General, a Byzantine rite Ukrainian bishop. We shall apply these principles in a few examples: 1. Basil, a Byzantine rite (Ruthenian) Catholic, raised since child­ hood in the Latin rite, was granted dispensation from disparity of wor­ ship by the Latin rite ordinary of the church he had always attended. His marriage with Juliet, a non-baptized Protestant, terminated soon in divorce. Basil wished to marry then Elizabeth, a Catholic Latin rite girl. The Holy Office declared the marriage Basil-Juliet invalid because of the diriment impediment of disparity of worship, the dispensation of the Latin rite ordinary having been granted invalidly, since neither party was his subject. 2. A chaplain of die Armed Forces of the United States assisted at the marriage of Walter, who declared himself a baptized Protestant, and Eve, a Byzantine rite (Ukrainian) Catholic. Dispensation from the 93

prohibitive impediment of mixed religion et ad cautelam from the diriment impediment of disparity of worship had been requested and obtained from the local Latin rite bishop. Walter and Eve separated and contracted new marriages, both with Catholics. Walter contended then that he was actually unbaptized, and that he had declared himself a baptized Protestant in the belief this would facilitate the granting of the dispensation. While the assistance at the marriage was validly performed, since chaplains of the Armed Forces of the United States have jurisdiction over all Catholics regardless of rite, the dispensation was invalid. Since his non-baptism could be proved, and because the dispensa­ tion was invalidly granted to persons of whom neither was the subject of the Latin rite ordinary, both could be permitted to convalidate their invalid unions. Had the chaplain requested and obtained the same dispensation from the military ordinary, the marriage would have been valid, inasmuch as the latter enjoys jurisdiction over all Catholics irrespective of rite.

3. CHANGE OF RITE OF NON-CATHOLICS AS AFFECTING THE IMPEDIMENT OF DISPARITY OF WORSHIP (1) General Considerations

As we have seen previously, a clear line of division exists between baptized non-Catholics subject to Oriental rite legislation, and non­ Catholics subject to the CIC. Is it now possible for a person belonging to one group to change over to the other? In respect to disparity of worship, such a transfer would mean that the person would be obliged to the diriment impediment according to his personal choice. A person is considered a Protestant if he received valid baptism in a sect that derives its origin from the Latin Church. If the baptism was administered in an organization which belongs or derives its existence from the Eastern Churches, the person will be a dissident Oriental. The application of this principle is sometimes difficult. It is obvious that the so called Old-Ritualists (Staroviertsy), which separated from the Russian dissident Church, will belong to the group of Oriental dissidents. How­ ever, many of the other sects which originated in the Russian Empire, and which were, at least originally composed of adherents of that Church, will have to be regarded as Protestants, on account of their tenets, al­ though they did not have connections with any particular Protestant denomination. If a non-Catholic was re-baptized at the occasion of change to some other denomination, the first baptism will have to be taken into consider­ ation when his legal status is to be ascertained, provided it was validly administered, the decision of which is to be rendered according to the principles of Catholic dogmatic theology and canon law. Therefore, doubtfully valid baptism, as that administered in many Protestant groups, will be regarded as valid in judging the validity of a previously contrac­ ted marriage, in accordance with the legal axiom established by the Holy Office on December 28, 1948 (AAS, 1949, 650). 94

A transfer from one rite to another could be lawfully accomplished either by an act of legitimate ecclesiastical authority or by a personal decision. Since among non-Catholics there is no legitimate ecclesiastical authority, a permission for such a transfer could not have been granted by anybody. As to a transfer decreed by a personal decision, this could be done if not forbidden by the Church, according to the legal maxime that man enjoys full freedom of action except if limited in specific in­ stances by divine or human law.

(2) Transfer from an Oriental Dissident Denomination to Protestantism Oriental dissidents cannot validly become Protestants, in the meaning of Catholic canon law. Even if they profess Protestantism, they will be considered to be subject to the laws of that Eastern rite ac­ cording to which they have received valid baptism. We derive this limitation of personal rights from the prohibition enacted by the Holy See in an instruction of the S. Congregation for the Propagation of the Faith to the Apostolic Delegate in Mesopotamia (July 15, 1876 - Collect­ anea II, n.1458). Various Protestant missionary societies were working with great financial means in the Near East. They had some success in forming hybrid Protestant-Oriental rite communities from among non­ Catholic Orientals of some size in India, Armenia, Egypt, and in what is today Irak. The Holy See decreed in this connection tiiat a transfer from an Oriental non-Catholic community to Protestantism is, as far as legal consequences are concerned, invalid and non-existent. The reason adduced was “quoniam ex professione haeresis vel schismatis nullum ius oriri potest; sed censendus est (haereticus vel schismaticus orientalis ritus) in orientali ritu (manere), quem antea sequebatur.” Such persons have thus to be considered subject to the laws applying to non-Catholics who originate from the Eastern Church. Example: Mary, a Catholic, intends to marry Nicholas. The latter was baptized as a child in the Russian dissident Church. He came with his widowed father to the United States, where he joined the Protestant denomination of his step-mother. He married later before a minister of his sect Sarah, a non-baptized Jewess. After obtaining a divorce, he wishes to marry Mary. Since his transfer to Protestantism was invalid, he comes under Oriental rite matrimonial legislation, precisely under c.60 # 1, which renders his marriage to Sarah invalid on account of disparity of worship. While the limitations of transfer from one rite to another at the monent of joining the Catholic Church, decreed in the old law for Ori­ ental dissidents, have been revoked (c.ll # 1), the restrictions imposed on Oriental dissidents in respect to affiliation with a Protestant sect con­ tinue in their legal force.

(3) Transfer from Protestantism to an Oriental Dissident Denomination We do not know of any positive legislative act which forbids or makes such a transfer invalid. We do not consider such a step invali­ dated by some general principle of canon law. We regard the existing prohibition of transfer from rite to rite within the Church without law­

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ful authorization a measure justified in our own epoch. There was no such rule in antiquity, and it cannot be excluded that in time to come this prohibition will prove itself superfluous. We find, therefore, no­ thing which prevents Protestants from becoming legally - according to the principles of Catholic canon law - dissident Orientals. Our discussion refers only to such Protestants who have received baptism in their denomination. Those who profess themselves Protest­ ants without being actually baptized, whose number is increasing on the American continent, are canonically to be regarded as non-baptized in­ fidels, not differing in that from pagans, Jews, and others. The question whether validly baptized Protestants can change their legal affiliation to a non-Catholic Oriental community is connected to a certain degree with the answer to a related problem: whether Protest­ ants, in becoming converts of the Catholic Church, can freely choose any Catholic rite, or whether they must become Catholics of the Latin rite. Our opinion is that their freedom of choice of rite is not limited.

Can. 11 # 1 Cleri Sanctitati states that “baptized non-Catholics of an Eastern rite may embrace the rite they prefer when they are admitted in­ to the Catholic Church..From this the conclusion was drawn that Protestants have no such freedom of choice; in other words, that they cannot abandon the Latin rite in submitting to the Church (cf. Meletius M. Wojnar, O.S.B.M., The Jurist, 1959, p.233). We consider this an er­ roneous proposition for the following considerations: Any person is free in all actions and omissions except if limitations have been set by divine or human law. This principle is valid also with­ in canon law. Consequently, a validly baptized person, regardless of his religious affiliation, would be entitled to change from one rite to another, were it not for certain limitations established by the Church. These restrictions of the freedom of persons ought be interpreted strictly. Such curtailment has been established by c.8. This canon speaks of “nobody” being able to transfer to another rite without the permission of the Holy See. This is to be understood, in the light of preceding laws and the teaching of canonists, as regarding baptized Catholics, i.e., bap­ tized persons who are or have been at any time of their life in commun­ ion with the Church, in person or through their parents, and excludes thereby dissident Orientals as well as Protestants, and other non-Catholic Christians. No provision having been made for Protestants, they are free to change from one rite to another, as long as they are outside the com­ munion of the Church, or at the moment of aggregating themselves to the visible organization of the Church headed by the Roman Pontiff. Canon 11 # 1 Cleri Sanctitati is not a special grant of a privilege to dissident Orientals, withheld from Protestants, but its insertion is to be explained by reference to the law preceding Cleri Sanctitati. The S. Congregation for the Propagation of the Faith had granted Oriental dis­ sidents permission to choose any Oriental, but not the Latin rite, in en­ tering the Church. Leo XIII conceded in Orientalium Dignitas (1894) that they may become Latin rite Catholics only exceptionally, if they made the aggregation to the Latin rite a necessary condition of their joining the Church. Canon 11 # 1 is therefore to be regarded an ex­ plicit abrogation of these limitations.

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Since Cleri Sanditati did not establish any specific limitation to baptized non-Catholics as to a free choice of rite when they join the Church, the stipulation of c.ll # 1 was not needed, strictly speaking. However, to prevent some canonists from invoking the above mentioned limitations decreed in the last century, and demanding that Oriental dis­ sidents retain their native rite, a reminder was appropriate, and was given in this place. Therefore, baptized non-Catholics, without consideration in which denomination they have received baptism, may choose any rite in en­ tering the Church. Oriental dissidents are urged to retain the rite in which they were baptized, while no such exhortation was given for Pro­ testants. While there would be valid reasons for curtailing the freedom of Oriental dissidents in choosing a rite, there are none as far as baptized Protestants are concerned, since they abandoned a long time ago all the genuine characteristics of the Latin rite from which their denominations once originated. If the Church considered it justified to grant complete liberty to the Oriental dissidents in this matter, it was the more appro­ priate to do the same in respect to Protestants or other baptized non­ Catholics of Western extraction. Oriental dissidents have not only faithfully preserved the common liturgical tradition, but have retained also the canonical structure which defines the separate existence of a rite. Nothing similar can be found among Protestants, and a preservation of their status before conversion would be meaningless. Our opinion is also supported by the fact that Protestants are being constantly received into the Catholic Church of the various Oriental rites, in accordance with the general persuasion of both the Latin rite as well as of the Oriental rite ordinaries, clergy and faithful that such reception into Oriental rites is justified and lawful. This practice has been going on in the United States and Canada for nearly a century. Numerous cases had to be submitted to agencies of the Holy See because of the need to clear up the legal capacity of such Protestants either to con­ tract a new or to convalidate an existing marital union with a Cath­ olic partner, without that there was ever voiced any objection to the legality of receiving Protestants into an Oriental rite. The question whether Protestant baptism is valid or not as such does not enter into the problem, especially after the Holy Office has declared on December 28,1949 (Bouscaren, C. L. Digest, III, 423) that the baptism administered in certain Protestant sects (Disciples of Christ, Presby­ terians, Congregationalists, Baptists, Methodists) is not to be presumed invalid in deciding the validity of marriage because of a possible defect in the intention on the part of the minister, unless this was established in a particular case. Therefore, every Protestant marriage will be assumed valid in examining the validity of a marriage entered by a person bap­ tized in some Protestant denomination. We are here concerned only with the question: can such a baptized Protestant, by transferring himself from his Protestant denomination to a non-Catholic Oriental community, leave the legal sphere of the marriage law of the Latin rite Church and aggregate himself to that of the Oriental marriage law? When a Protestant joins an Oriental non-Catholic denomination he may be received with or without re-baptism. Since it is commonly 97

known that non-Catholic Orientals receive baptized Protestants always with administering to them baptism and confirmation, we shall consider only this case. It is therefore our opinion that a baptized Protestant who was re­ ceived into a non-Catholic Oriental community by baptism becomes in canon law an Oriental non-Catholic. The validity of a marriage he may afterwards enter into is to be examined according to Oriental canon law. He will no longer be exempt from the diriment impediment of disparity of worship. Example: In marrying Olga, the baptized Protestant Charles joined the Russian dissident Church of his wife, where he was received with baptism and confirmation. He marries after Olga’s death Mildred, a non-baptized Protestant, before a Protestant minister. After they di­ vorced, Mildred wishes to marry a Catholic. Her marriage to Charles will be invalid if he was bound to c.60 # 1 and valid if he was subject to c.1070 # 1 CIC. It depends on whether he transferred himself validly from Protestantism to die Oriental dissi­ dent denomination. If he became legally an Oriental, though non-Catholic, his marriage to Mildred was invalid. According to our opinion, he was an Oriental when he married Mildred, and his marriage to her was invalid because of the indispensed diriment impediment of disparity of worship. In passing it should be said that a dispensative dissolution of Mil­ dred’s marriage to Charles could be obtained in virtue of the Privilege of the Faith if she decides to enter the Church. 4. TRANSFER BETWEEN AN ORIENTAL DISSIDENT DENOMINATION AND PROTESTANTISM AS AFFECTING THE OFFSPRING

We discussed in the preceding section the legal consequences which accompany the transfer of a dissident Oriental to a Protestant sect. We saw that such a transfer is rendered impossible and inefficacious by positive laws of the Church. In this chapter we shall discuss the question whether this legal disability of dissident Orientals to become Protest­ ants - as far as canon law is concerned - extends also to their offspring. Example: Vahan, a dissident Armenian, joined the Armenian Pro­ testant Church. His son George was baptized in this denomination. They came later to Canada. George married before a minister Mar­ garet, a non-baptized Protestant, but divorced her later. He intends now to marry Ann, a Catholic. If George was a dissident Oriental, his marriage to Margaret was invalid because of the diriment impediment of disparity of worship c.60 # 1 CrAH). If he, however, was a Protestant, c.1070 # 1 CIC is to be applied, and the marriage George-Margaret was valid, precluding thereby a marriage to Ann, except by application of the Privilege of the Faith. In our opinion children of Orientals may validly become Protestants, if they were not received in an Oriental dissident community. Once a person received baptism in an Oriental dissident organization, he cannot transfer himself to Protestantism; of course, always legally speaking, 98

Children and offspring of dissident Orientals thus may become Protest­ ants (cECoussa, Epitome, I., p.35) and thereby change from the realm of Oriental canon law to that of the Latin rite canon law. Continuing the above given example, George is to be considered a Protestant, since he himself had not been baptized in the dissident com­ munity of his father. Consequently, he will be incapable of entering into marriage with Ann. His marriage to Margaret could be dissolved by application of the Privilege of the Faith. 5.

CANON 60 # 1 AND CANON 90 # 1

Can.90 defines those who are subject to the Catholic marriage form of CrAll. The second paragraph of the same canon declares that bap­ tized non-Catholics are not bound to a marriage form even in the case where they are contracting marriages with non-baptized non-Catholics. This seems contrary to c.60 # 1, because such marriages would be pre­ vented by the diriment impediment of disparity of worship, from which only authorities of the Catholic Church can grant a dispensation, and the insertion, therefore, of the phrase “non-baptized non-Catholics” seems superfluous. However, this was rightly deemed necessary for two reasons: 1. According to canonists, the impediment of disparity of worship may cease in extreme circumstances, namely, in which a baptized person has no reasonable choice at all of a mate from among baptized persons e.g., in missionary regions, especially during persecutions, when ther is no possibility of applying for the needed dispensation from the dir ment impediment of disparity of worship. For such cases it had to I stated that the Catholic marriage form is not binding, or, in other word] that marriages entered under such circumstances by non-Catholics wil not be invalid because of the lack of form or because of the absence of a dispensation. 2. In order to be consistent, the cases of marriages between bap­ tized and non-baptized non-Catholics had to be included in the exemp­ tion from the marriage form, because their absence would necessarily have been construed as indication that they are bound to the form in virtue of the general maxim that baptized Catholics are subject to all Church laws unless they are expressly exempt.

SACRED ORDERS Canon 62. # 1. Clerics in major orders attempt marriage in­ validly.

# 2. The force to render marriage invalid is attached to the subdiaconate just as to major orders.

1. CELIBACY IN THE ORIENTAL CHURCH

Very early in the history of the Eastern Churches can be found ex­ amples of strict prohibitions issued by emperors and synods to the higher clergy, deacons, priests and bishops, to enter marriage after they had 99

been ordained, even after their wives have died. It is not clear, however, whether marriages contracted against such legislation were considered always invalid or only unlawful. Subsequent centuries clarified the pro­ blem to the extent that there was no Catholic and hardly any dissident Oriental group which would have permitted to deacons or priests to marry after the ordination, whether it had been received in the celibate or in the married state. This legal situation was codified in the present canon. In addition, it is uniformly established now for all Oriental rite groups alike that the ordination of a subdeacon, though remaining a minor order, is also a diriment matrimonial impediment. Some dissident groups, especially those who were eager to attract celibate Catholic priests, employ a legal subterfuge of dubious logic. In view of the doctrine of some dissident theologians that there is no in­ delible character conferred in the sacrament of holy orders, church authorities grant to priests, widowed or celibate monks, desirous to marry, a reduction to the lay state. Once they are again lay men, they regain the rights of lay men, i.e., to contract a valid marriage. This procedure was used by the Russian Church already in the 17.century, and was some­ times connected with a penal degradation from the order and expulsion from the clergy. The question of obligatory celibacy is a point of difference between the Oriental Churches and the Latin rite Church. The new codification in Cleri Sanctitati treats the problem in several canons: Canon 68. fits better with teries, as it is Eastern as well

The celibacy of the clergy, which corresponds and their state and the celebration of the divine mys­ witnessed by the unanimous tradition of both the as the Latin Church, shall be held in esteem by all.

The Christian East retained the apostolic custom of ordaining mar­ ried candidates, but hand in hand with this indulgence to human frailty a high appreciation of the celibate state was no less an ideal in the East than in the West. The reference to the appropriateness of celibacy in relation to the celebration of the divine mysteries is probably an allusion to the demand of the liturgical rubrics in most Eastern rites, directed to the married clergy, to abstain from marital intercourse before the celebration of Mass, i.e., from the preceding evening. Mass is as a rule among dissidents still celebrated only on Sundays and holydays. The Catholic married clergy followed the custom of the latin rite of celebrating daily, and could not comply with the request of the ancient tradition. According to a decree of the Apostolic See celibate clergy must be given preference over the married clergy in appointments to parishes (S. Congregation for the Propagation of the Faith, September 2, 1647). Canon 69. No one can be promoted to the episcopal order who is not celibate or lawfully freed from bonds of marriage.

From St. Paul’s adminition that bishops shall be but men who have been married once, and from other ancient sources, we know that bishops were often married men, engaged in secular business, living with their families. However, married bishops disappeared in the East quite early, and in later centuries the episcopacy was exclusively recruited from among the monks.

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The reunited Catholic Orientals followed this practice in the begin* ning, but after a vaccilation returned to the custom of the post apostolic era, permitting candidates for the episcopacy to be assumed from among the celibate or widowed secular clergy, as well as from among the re­ ligious. Canon 70. Subdeacons and all clerics ordained to major orders are forbidden to marry to the extent that according to law they be­ come incapable of contracting marriage.

Candidates who are to be ordained as married men must enter into marriage before the reception of the subdiaconate. The subdiaconate was definitely established as a diriment impediment by CrAll; it remains, however, a minor order. Widowed priests, deacons or subdeacons are not permitted to remarry, nor can they validly do so. Canon 71. In regard to married men who wish to be admitted to the subdiaconate or major orders, either absolutely or with a dis­ pensation either from the patriarch or the local Hierarch, but not from a syncellus, or even in regard to those who are to be excluded from their reception, these Apostolic Letters do not change anything in the present discipline of each Eastern rite.

The Apostolic See has rarely demanded or authoritatively suggested to groups of Oriental Catholics in regions where they are settled since antiquity to follow the Latin rite example and to introduce obligator} celibacy. However, the preeminence of the celibate state influenced ini dividuals and the episcopate of various Catholic communities of the Easl to adopt either exclusive celibacy, or make the ordination of celibate candidates the normal case, while the exceptional ordination of a mar­ ried man is permitted only with a special dispensation either of the pat­ riarch or of the bishop. Emil Herman, S.J., distinguishes the various Catholic Oriental Churches into three groups (“Celibat des clercs”, II.en droit oriental, in Dictionaire du Droit Canonique, III.v., column 155): 1. Total or absolute celibacy exists among the Malabarians in India, where it was introduced by custom, under die influence of the Latin rite. 2. Limited or relative celibacy is observed in various rites. Married men are admitted to higher orders only with a foregoing dispensation, preference being given to celibate candidates: (1) Among the Ethiopians the Hierarch can grant such a dispen­ sation. (2) Among the Syrians a dispensation from the patriarch is needed for the diaconate and presbyterate, while candidates who stay forever subdeacons can be ordained without patriarchal dispensation (Synod of Sharfeh, 1888). (3) Among the Copts permission for the ordination of married men must be obtained from the patriarch (Synod of Alexandria, 1898). All these Churches receive into the clergy married priests and dea­ cons who come from dissident Oriental groups. 3. 'Without general laws on celibacy: The other Oriental Catholic groups have no prohibition, which would uniformly apply to all dioceses, 101

to ordain married candidates, and follow the ancient tradition of the Christian East. Regional prohibitions are known, as for the United States and Canada, where only celibate or widowed candidates may be or­ dained. Among the Byzantine rite Catholics in Italy, Greece and Turkey re­ cently only celibate candidates were ordained. In some other rites the major part of the clergy remains celibate, since preference is given to such candidates, as among the Maronites, or the number of clerics be­ longing to religious institutes surpasses that of the secular clergy, as among the Melkites. Among the Romanians, Croats, Ruthenes in the Subcarpathic re­ gion, Magyars (Hungarians), Bulgarians, Armenians, Chaldeans, the majority of the clergy are married men. The situation in the three Ukrainian dioceses of Western Ukraine or Galicia (Lwiw, Peremyshl, Stanislawiw) was somewhat different. In the diocese of Peremyshl and that of Stainislawiw only celibate candidates were ordained after World War I. In Lwiw preference was given to celibate candidates, but married ones were also ordained, provided the support of the future family was assured, usually by the prospect of a vacant benefice to be conferred on the candidate, in addition to a cor­ responding dowry possessed by his wife. Such a change of the lawful order, usually decreed by the hierarchy assembled in a synod, must be distinguished from the decision of single bishops, although perhaps assembled in an episcopal conference, to give preference to celibate candidates to the extent that married men were wholly excluded from ordination in that dioceses. Such was the situation, e.g., in the above mentioned two Ukrainian dioceses of Peremyshl and Stanislawiw. This kind of arrangement can be changed at any time by the respective bishop, especially if the number of celibate candidates should become insufficient to provide for the needs of the faithful. Canon 71 of Cleri Sanctitati does not change the present legal situ­ ation, but leaves it in the sphere of particular law, although the con­ clusion must be drawn that the Holy See does not wish to impose celibacy on the Eastern Catholic Churches as an obligatory measure. However, whenever the exclusion of married candidates is not absolute, but de­ pending on a dispensation to be granted by the patriarch or the bishop, such dispensations shall not be granted by the syncellus, and conse­ quently the bishop or patriarch shall not assign such power to his syncellus, but should exercise it in person.

2. ORIENTAL CLERGY IN THE UNITED STATES The question of married or celibate clergy in the United States and Canada was and is still a difficult problem, that has not yet found a so­ lution. The Holy See demanded from the very beginning of the im­ migration of Oriental rite clergy into these two countries that they be celibate, or if they were widowers, that they come without their children. This rule was adopted at the insistence of the Latin rite hierarchy, but proved to be disastrous for the future of the Oriental Catholics on the American continent, especially the Ukrainians. Since the number of celi­ bate clerics in the countries where the immigrants came from was very

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scant, and they were mostly in positions of higher responsibility, only married priests could come to minister among their co-nationals, and even they only in a limited number. They were often rejected by the Latin rite clergy and ordinaries. The faithful sought refuge in schis­ matic churches organized by the Russian Orthodox Church. The Rus­ sian bishops provided them with priests by ordaining simple men from among them, who had no schooling except some training in liturgical singing. The dearth of priests among the Catholics was the decisive reason why so many left the Church, and why more that four-fifths of the Slavic non-Catholic Orientals in the United States are former Catho­ lics and their descendants. The situation is such today that in the United States and in Canada only celibate or widowed candidates are ordained. However, still the majority of the Ukrainian clergy are married. After World War II, be­ cause no other region was capable of accepting and employing several hundred married Ukrainian priests, refugees from behind the Iron Cur­ tain, the Sacred Congregation for the Oriental Church suspended the prohibition and permitted married priests to come with their families to the United States and Canada, directing the few celibates to other coun­ tries with Ukrainian immigrants where married clergy could not be ac­ cepted, as Australia, Argentina, Brazil. Because of the lack of celibate candidates in Canada, and the great need of priests in the wake of the new immigration, several married men, who were graduates of the School of Theology of the Ukrainian Seminary in Lwiw (Western Ukraine) before World War II, but had not been or­ dained for lack of available employment, have been recently (1958) or­ dained in Europe by Ukrainian bishops with the consent of the Sacred Congregation, in order to return for work in Canada. The letter of the prohibition of ordaining married candidates on the American continent was thus preserved. Canon 72. 1. In those rites in which married clergy are not permitted, clerics below subdeacons can indeed enter into a mar* riage, but, unless the marriage was invalid on account of their being forced or because of fear, they cease by law itself to belong to the clerical state. 2. A married man who without apostolic dispensation received the subdiaconate or major orders, even though in good faith, is for­ bidden to exercise such orders. Canon 73. Clerics, even those married, must excel in the virtue of chastity. Those who sin against chastity shall be punished ac­ cording to the rules of law.

3. ORIENTAL CLERGY IN LATIN RITE DIOCESES

Candidates for the priesthood who belong to an Oriental rite cannot be accepted in a Latin rite seminary except when they are to be trained for priests in their native rite. A Latin rite bishop cannot lawfully ordain an Oriental without an indult from the S.Congregation for the Oriental Church (c.955 # 2 CIC). This would be now granted easily, provided there is no bishop of that rite available in that region. The attitude of the Holy See has changed 103

in this respect considerably, and even consecrations of Oriental bishops by Latin rite bishops have occurred. The Latin rite ordinary may also send his Oriental subjects with proper dismissorial letters for ordination to a bishop of the candidate’s rite. An indult of the Holy See is required in two cases: 1. if the ordin­ ary himself wishes to ordain a candidate of another rite; 2. if he wishes to send the candidate to a bishop of an Oriental rite different from that of the candidate’s own. In those regions, in which it is not permitted to ordain married can­ didates of Oriental rites, although in other parts of the Church of the respective rite married men are permitted to take orders, Latin rite ordin­ aries would have to make sure that die candidate is either single or that his previous marriage was dissolved. This applies, e.g., to die United States and Canada (cf. S. Congregation Prop. F. May 10, 1892; S. Con­ gregation for the Oriental Church, December 23, 1929). Should a candidate be ordained to the priesthood in a rite different from that to which he legally belonged, in contravention of the canonical regulations, his situation would have to be examined by the S. Congre­ gation for the Oriental Church. There is a tendency on the part of the Holy See to be more strict in matters of rite with candidates to the priest­ hood than with other faithful. While according to the CIC a candidate may apply to any diocese and is not obliged to offer his services to the ordinary of his own dio­ cese, as long as he was not incardinated at least by receiving the tonsure, another rule is to be applied to candidates from the Byzantine rite dio­ ceses in the United States and Canada. The S. Congregation for the Oriental Church accepted for practical use the opinion of one of her consultors that in such cases the Apostolic Constitution of November 4, 1694, Speculatores, of Pope Innocent XII (Fontes, I., n.258) is to be fol­ lowed, which provides that a candidate is bound to offer himself first to his own local ordinary. Only if he was rejected, he may apply to some other local ordinary. 4. ORDINATION BY DISSIDENT BISHOPS

In respect to ordinations conferred by dissident Orientals, it is our opinion that they do not constitute the diriment impediment of ordi­ nation. It is true that ordination to the diaconate at least became a diri­ ment impediment before the separation of the Eastern from the Western Church, and that Eastern dissident bishops administer ordination validly. However, in order that the diriment impediment come into effect, it would be necessary that the ordaining prelate be commissioned by the Church to make use of his ordaining power in virtue of his apostolic succession. Accordingly, we must exclude all consequences possibly resulting in law from an ordination conferred by a prelate who is sus­ pended from the exercise of his episcopal order either by law or by sentence. Ordinations conferred by dissident Orientals or by Jansenist bishops (Church of Utrecht), although generally valid, would not change the legal status of the ordained man in the external forum, although as far as the sacrament is concerned he could be a valid priest or bishop. His clerical state is ignored by the Church, and the exercise of such or­ ders is forbidden by c.2372.

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There is another consideration supporting the same view: since the right to enter marriage is based on divine law, a person can be deprived of it by ecclesiastical law only if he freely and unconditionally consented to this curtailment of his right. Among most Oriental dissidents there prevails today the practice of permitting clerics and religious to enter marriage by returning them to the lay state. A dissident candidate for orders is necessarily under the impression that he will be permitted to enter into a new marriage if he so choose, provided he leaves the clergy. His consent to the legal consequences of the diriment impediment of or­ dination, therefore, is never as unconditional as it is that of a candidate in the Catholic Church. Since the permission to return to the lay state, because it comes from the dissident denominational authority, which has no ecclesiastical jurisdiction in the external forum, is of no legal value, his private decision to leave the clergy and to marry will be suf­ ficient. We conclude therefore, that a deacon, priest or bishop who re­ ceived orders outside the Church is not bound by the diriment imped­ iment of ordination. Whether such a man would be permitted to exer­ cise his orders on conversion, is a question of fact to be resolved ex­ clusively by the Holy See. A favorable acceptance of his request is not to be expected, since most Oriental dissidents exclude such men from tlie ranks of the clergy, even if they should accept the validity of their marriages. (Bibliography concerning this problem may be found at Marbach, Marriage Legislation, p.244, Ann. 101). This problem has some practical application in the United States and Canada. Among the dissident Byzantine rite groups, which were formed by apostates from the Catholic Church during the time when there was no Catholic hierarchy established for them and the dearth of priests was extreme, there are a number of priests who would consider a return to the Catholic Church if their personal situation could find a solution acceptable to them. They were bom and baptized sometimes in the Catholic Church at a time when their parents had not yet left the Church. Having become de facto members of a dissident organization as infants, they married there, and later took orders, mostly from a validly consecrated bishop. However, the baptism received in the Catholic Church made them subject to the ecclesiastical marriage form of Ne Temere, and their marriages before dissident priests are thus considered invalid for lack of the prescribed form. Now, if their (sacramentally valid) ordination made them subject to the diriment impediment of holy orders, they could not convalidate their invalid marriages. We, as explained above, deny the existence of the impediment, and therefore consider them free to convalidate their marriage in the same manner as other Catholics can do. However, there is also the expedient of a sanatio in radice, to be granted by the Holy See, and this was done repeatedly, on condition that such a convert can­ not exercise the priestly order but be received as a lay man. The Holy Office usually formulated and conceded the following alternative: either convalidation of the marriage by sanatio in radice and return to the lay state, or recognition of the priestly order and permanent separation from their wives. It must be emphasized that a sanatio in radice of an invalid marriage of such a priest, which is actually a contracting of a marriage after - in

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time - the reception of the order, is not completely equivalent to a dis­ pensation from the diriment impediment of the presbyterate, as it was granted by the Holy See to priests during the reign of Queen Mary Tudor (1553 - 1558), who had married during the persecution inflicted upon the Church by King Henry VIII, and after the French Revolution in favor of priests who had contracted marriages during the preceding disorder. The difference is in the fact that these converts from Oriental dissident communities, even if they had been former Catholics, had attempted such marriages before they were ordained priests, while the above men­ tioned general dispensations were granted to men who had contracted marriages as priests ordained in the Catholic Church. As it is to be expected, not many prospective converts are willing to accept the alternative either to revert to the lay state or to separate from their wives and families if they wish to remain priests at their return to the Catholic Church. We submit therefore another solution: Since the ordination to such candidates was conferred unlawfully, though validly, the diriment impediment of ordination does not enter into the problem at all. Consequently, they are free to convalidate their marriage accord­ ing to the general rules of the Catholic Church. After this has been done, the Holy See could then examine the second question: whether their ordination was valid, and whether they ought be accepted into the clergy of the Church. Although the two problems: invalidity and convalidation of mar­ riage, and the sacramental validity or ordination conferred outside the Church, are found joined in one person, they are legally two distinct issues, which can and should be resolved separately.

SOLEMN OR MAJOR PROFESSION Canon 63. Marriage is attempted invalidly by religions bound by solemn or major profession, as well as by those who have taken the vow of chastity outside of major profession, with which, how­ ever, is connected by a special prescription of the Apostolic See the power of invalidating marriage.

1. THE LAW ON ORIENTAL RELIGIOUS The present legislation of the Eastern Catholic Churches on the religious state is contained in the Motu Proprio Postquam Apostolicis. The expression “solemn or major profession” refers to the dualistic char­ acter of that legislation. As other institutions of the Church, so also re­ ligious life in community spread from the Christian East to the whole Church. But while in the Western Church it ramified in a gamut of various organizations, such as orders, congregations, societies without vows, dedicated to the most disparate tasks, in the Church in the East it never developed far from the beginnings of monachism in the Egyptian desert. Among Catholics, a number of religious institutes were estab­ lished according to Latin rite canon law principles, and others, originally Oriental religious, accepted the norms taken from the same source. Only

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a few Catholic, but all dissident groups retained the characteristics of contemplative monks or nuns, and are governed by legal principles developed and defined during the first millenium. The codification of the Oriental law on religious was urgently need­ ed, not only because of the intention to produce a complete code of the entire Oriental canon law, but also to help the remnants of genuine Ori­ ental tradition among the religious preserve, and sometimes recreate, their Oriental characteristics. Because of the uncertainty as to what consti­ tutes essential Eastern tradition, and what was a dispensable borrowing from the Western Church, Oriental religious drifted farther and farther toward the Latin rite norms of religious life. The new codification in Postquam Apostolicis has permitted that Oriental religious life be or­ ganized both according to the Eastern as well as Western traditions. A clear line is drawn: on one side is a complete preservation of the genuine ideals and norms of Oriental monachism, on the other side are the nu­ merous religious institutes which could hardly be engaged in such vari­ egated activities, indispensable to the Church in the circumstances of modem life, were it not for their institutional setup according to Western principles. Although it is true that the Christian East has preserved the ancient structure of contemplative life, we must say that the same ideal is pur­ sued in the Latin rite Church by many monastical orders. However, essential organizational changes have been introduced, such as the estab­ lishing of classes among the members, of temporary or non-solemn profession, etc. Since it was the avowed purpose of the codification to preserve the genuine Oriental tradition in every branch of Church life, nay even to restore it where it had been subjected to the extraneous influence of the Western Church, Postquam Apostolicis had to make all such provisions which would permit the continued existence of the mon­ astic state according to its ancient legal structure. On the other hand, it could not be overlooked that the religious in­ stitutes of the Catholic Oriental Churches had undergone since their reunions with the Holy See of Rome a profound influence of the Latin rite canon law. This should not be explained as a blind imitation, but is to be understood as an adoption and an adaptation of organizational features which had proven themselves as better suitable to tasks to which Oriental religious were called in novel situations. From monks leading a contemplative life in somewhat remote monasteries, living under the obedience of a superior elected for life, they were forced by circumstances to become missionaries and preachers, settled in a larger number of small residences in the midst of cities and towns. Such a way of life could not be conveniently reconciled with the stabilitas loci, with local superiors elected for life, or without introducing a legal distinction between the monks capable of intellectual pursuits and those suitable only for manual work. In consequence of such circumstances, most Oriental Catholic religious organized themselves into orders, with local superiors usually appointed for a certain number of years, with a central novitiate and house of studies, with a superior general, and with major superiors in charge of a number of monasteries, who received the corresponding title of provincials or protohegoumenoi, etc. That this transformation was

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justified and beneficial towards the goals of the religious state is demon* strated by the history, e.g., of the U&ainian Order of St. Basil the Great, which, after a temporary decline in the 19th century, was reorganized, and before World War II was close to becoming an Oriental rite religious institute represented in several branches of the Byzantine rite, with a Ukrainian, Slovak, Hungarian, Yugoslav, Subcarpathian, American, Ca­ nadian, Brazilian province or vice-province. Another group of Oriental religious institutes was organized from the very beginning according to Latin rite forms, namely, the various congregations of men and women established during the last centuries. They never experienced a structural transformation from the Oriental monastic tradition to that of the Latin rite, but received from the very be­ ginning the features of Latin rite religious institutes. The XIX century saw a number of Latin rite orders and congregations form Oriental rite branches of their institutes. The Redemptorists, the Jesuits, the Benedictines, the Franciscans (Observants and Conventuals), the Assumptionists, and others, have provinces or similar subdivisions of Oriental rite. Although they endeavor to conform to the genuine Oriental traditions as closely as possible, they are governing their houses and membership according to the norms which they have in common with the Latin rite members of their institutes. There are Latin rite orders and congregations which have started towards the establishment of Oriental rite branches, either by accepting into their membership Oriental rite candidates, who retain and practice their own rite, or by permitting some members to transfer to an Oriental rite, perpetually or temporarily. The Church was thereby placed in a situation where it was found necessary on one hand to materialize the desire of favoring the continu­ ation or revival of the ancient and genuine monastic traditions of the Eastern Churches, and on the other hand there was a need to provide legal norms for those institutes which had adopted the more modem structural features of Latin rite institutes. The only solution was to in­ troduce into the codification a dualistic character. For nearly every single institution special and separate norms for both kinds of religious insti­ tutes had to be defined. In order to hold the provisions apart and not to confuse them, it is therefore necessary to pay close attention to the defi­ nitions of legal terms in Postquam Apostolicis, since some fundamental ones have received a meaning quite different from that found in CIC, as, e.g., monk, monastery, exemption, and several others. The S.Congregation for the Oriental Church granted, after the pro­ mulgation of the motu proprio, to Oriental rite religious institutes the opportunity once for all of chosing whether they would declare them­ selves for the category of monks, and then follow all pertinent legal norms, or would retain their present legal conditions as orders or con­ gregations. Most institutes found it not feasible to return to Oriental monastic forms because of the necessity of radical changes in their activities, which would have caused serious damage to numerous apos­ tolic undertakings.

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2. LEGAL CHARACTERISTICS OF ORIENTAL MONASTICISM

Because of the increased interest in the Christian East and its pe­ culiar institutions, a brief description of the legal characteristics of Oriental monachism is given here: 1. There is no division of the religious into organizations, as orders, congregations, institutes without vows, etc., but one only monastic state, to which belong all monks and nuns. To be a monk or nun has the same meaning as if a man belongs to the clergy, which knows different degrees but only one clerical state. 2. The organizational unit of the monastic state is the indepen­ dent monastery (monasterium sui iuris), represented by the superior with the council composed of the monks or their elected representatives. Since the monastery is a self-contained unit, it has its own novitiate and house of studies. 3. Members of a monastery may be permitted to lead the life of anachorets or hermits, which frees them from some communal obliga­ tions, but does not withdraw them from the authority of the superior. 4. Monasteries may form higher organizations, federations, for the more efficient attainment of certain common goals, without losing there­ by their individual independence. 5. The superior of an independent monastery, being elected for life, receives a liturgical blessing after which he is entitled to confer on his subjects the minor orders. 6. The monastic state is not a clerical nor a lay institute, but sim­ ply a monastic institute. Members possess in general equal rights, except that for certain offices, as, e.g., for that of the superior, the clerical state and the order of priesthood may be required. 7. Postulancy or a definite period of trial preceding the novitiate is not known in the East. 8. Monks and nuns, as a general rule, do not make temporary pro­ fession, but after a novitiate of three years they are admitted at once to perpetual vows. 9. Although every profession is perpetual and solemn, in the mean­ ing of canon law, there are degrees of profession, the minor and the major habit or scheme, referring to degrees of ascetical obligations to which a monk or a nun can oblige himself. 10. The chief duty of a monk or nun is to lead a contemplative life, with special emphasis on the solemn celebration of the divine office, which is an obligation of the community as such and not of the single member. 11. Because there are no classes among the members of a monas­ tery, nor such organizations as orders, all monks wear the same habit, with the exception of differences following the degrees of profession, as spoken of in point 9. 12. Monasteries are as a rule subject to the local Hierarch, who is entitled to supervise the faithful observance of the monastic discipline. 13. Patriarchs enjoy the privilege of stauropegia, i.e., to exempt a monastery, under certain conditions, from the jurisdiction of the local Hierarch and subject it to their own immediate authority. 109

14. Since there is no division into orders or congregations or other institutes, the transfer from one monastery to another does not, in general, affect the legal status of the monk or nun. He always stays a member of the one monastic state. Repetition of novitiate or profession are not demanded by common law.

3. RELIGIOUS PROFESSION As a consequence of the need to provide both for orders, i.e., reli­ gious institutes with solemn vows, organized according to Latin rite principles, and for religious institutes of Oriental monks or nuns, who make “major profession”, c.63 of CrAll includes both of them.

Postquam Apostolicis has the following definitions: Canon 315. Major profession comprises both the monastical profession as well as the profession made in orders, which is equated to the monastical one. Every other profession is called minor pro­ fession.

Major profession is equivalent, as far as juridical effects are con­ cerned, to the solemn profession of CIO. Minor profession is every tem­ porary profession, and the perpetual vows taken as simple profession either by all members of a congregation, or by some members of an order. Eastern monks make major profession, to be pronunced after the novitiate. The only minor profession among Eastern monks and nuns is that mentioned in c.108: Canon 108. Whoever in monasteries, after having completed the triennium of novitiate, is admitted to religious profession, but has not yet reached the age required by law for the major profession, must make without delay temporary profession in the same monastery, which will be valid till he has reached the legal age, except if the interval between the end of the novitiate and the prescribed age is shorter than six months; in this case the superior of an independent monastery can decide that the temporary profession be omitted.

Another question arises concerning converts who have made mon­ astic profession as dissidents.and wish to contract a Catholic marriage. According to our opinion, they are not bound by public vows and the matrimonial impediment does not apply to them, since the superior re­ ceiving them was not “legitimate” according to the requirements of canon law. One could still argue that the religious, while being a non-Catholic, had established some special relationship between himself and God to whom he made his profession, and which relationship continues to bind him even after he became a Catholic. This is not denied, but such vows will be of a strictly private character, not public vows in the meaning of canon law, and therefore cannot constitute the diriment impediment. Having been taken outside the Church, it is questionable whether these private vows will come under the reach of c.48, i.e., constitute the pro­ hibitive impediment to marriage. 110

ABDUCTION Canon 64. # 1. Between the abductor and the woman who has been abducted with the purpose of marriage there can be no mar­ riage as long as the woman remains in the power of the abductor.

# 2. If the abducted, after having been separated from the abductor and placed in a safe and free place, consents to marry him, the impediment ceases. # 3. As far as the nullity of marriage is concerned, the for­ cible detention of the woman is held equivalent to abduction, namely, when the man by force detains the woman with the purpose of mar­ riage in the place where she is staying or to which she came volun­ tarily.

GRIME Canon 65. Marriage cannot be contracted validly by those: 1. who during the same valid marriage have committed adul­ tery together and exchanged mutual promise of contracting marriage or attempted marriage itself, be it even by a mere civil act; 2. who during the same valid marriage have committed adul­ tery together and one of whom has murdered the spouse; 3. who by mutual physical or moral cooperation cause, even without adultery, the death of the spouse.

The expression ‘legitimate marriage’* of c.1075 CIC is replaced with “valid marriage”, which does not change the meaning. It is true that the term “matrimonium legitimum” was defined in c.1015 # 3 CIC as a mar­ riage of two unbaptized persons. This definition could for obvious rea­ sons not be extented to c.1075 nor to other places in the CIC where “legitimate marriage” was mentioned (cf., e.g., c.331 # 1, n.l, CIC). Concerning the implicit dispensation from this impediment see c.43. Oriental dissidents admit the possibility of complete divorce of a valid marriage bond. If an Oriental dissident obtained such a divorce and remarried, his relationship to his second spouse is not necessarily to be qualified as adultery, since subjectively he believes to be living in marriage, not concubinage. Consequently, their marriage would not be invalid because of the diriment impediment of crime, since an essential element is lacking: offectus adulterinus = mortal sin = crime = diriment impediment. Example: Basil, a Byzantine rite dissident, married in 1924 Xenia, a Byzantine rite dissident. They divorced in 1932. Basil remarried in 1934 Sonia, a Byzantine rite dissident, after he had obtained a sentence of the tribunal of his ecclesiastical affiliation. Xenia died in 1941. Basil and Sonia desire to become Catholics. The marriage Basil-Sonia will be invalid because of the diriment impediment of crime only if they consid­ ered their marriage an adulterous union because Xenia was still alive. Ill

CONSANGUINITY Canon 66. # 1. In the direct line of consanguinity marriage is invalid between all ascendants and descendants, both the legitimate as well as the natural ones. # 2. In the collateral line, it is invalid to the sixth degree in­ clusively, in such a manner, however, that the impediment to mar­ riage is multiplied as often as the common progenitor is multiplied. # 3. Never shall marriage be permitted if there is any doubt as to whether the parties are blood relations in any degree of the direct line, or in the second degree of the collateral line.

# 4. 1. Consanguinity is to be reckoned by means of lines and degrees: 2. in the direct line there are as many degrees as there are persons, subtracting the progenitor; 3. in the collateral line there are as many degrees as there are persons in both lines, subtracting the progenitor.

Corresponding to the arrangement in the CIC (c.96), the definition of consanguinity as such, independently from marriage law, is contained in c.24 Cleri Sanctitati, which is identical with #4 of this canon. The definition of consanguinity is needed in other branches of canon law too, as, e.g., in establishing requirements for certain offices (c.177 # 2, n.3, Cleri Sanctitati = c.232 #2, n. 3, CIC; c.433 # 2 Cleri Sanctitati =c. 367 # 2 CIC; c.263 # 2 Postquam Apostolicis — c.1520 # 2 CIC), in con­ nection with the rendering of testimony in trials of relatives (c.279 # 3, n.3, Sollicitudinem Nostram — c.1757 # 3 CIC; c.481 Sollicitudinem Nostram - c.1974 CIC), etc.

Roman law reckoned the degrees of relationship by counting the persons in both lines, excluding the common progenitor. There were as many degrees as persons less one. This computation remained in the Eastern Churches and was also accepted by the civil law system of modern times. The Latin rite Church adopted the Germanic compu­ tation, which is stil preserved in the CIC. Eastern Catholics follow the Eastern computation according to CrAll. There is no difference in computing degrees in the direct line, but only in the collateral or branch lines. While Eastern computation counts in establishing the degrees of relationship the number of persons on both sides, Western computation reckons it by counting the persons of one line only, and if the lines are inequal, of the longer branch. Both systems of computation have some shortcomings. The Eastern computation is sometimes vague, because, e.g., the fifth degree could be the first touching the fourth, as well as the second touching the third. Since, however, in practice a case of relationship 1/4 (e.g., between a man and his great-grandniece) will not likely happen, greater accuracy in not needed. The Western computation is also not accurate enough and has to be supplied by giving the number of the persons of the other line, e.g., 3/2.

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There is no difference between Oriental and Latin canon law in re­ gard to the extension of consanguinity as matrimonial impediment in the direct line. In respect to the collateral or branch line, consanguinity is in the Oriental matrimonial law a diriment impediment to the sixth de­ gree (Eastern computation) inclusive. There is no difference if both col­ lateral lines are equal, but only if one is longer, in which case there are three relationships which solely in Oriental canon law create an imped­ iment, namely: fifth degree touching the first (highly improbable occur­ rence), fourth degree touching the first or the second. Nine possible cases could arise which are according to Western computation: 1/1 1/2 1/3 1/4 1/5 2/2 2/3 2/4 3/3

— — — — — — — — —

brother - sister Adam-niece Adam - grandniece Adam - great-grandniece Adam - great-great-grandniece first cousins Adam - his cousin s daughter Adam - his cousin s granddaughter second cousins.

Degrees Eastern: 3· Western: 2/U

Degrees Eastern: 4. Western: 2/2.

Degree: Eastern: 5. Western: 3/2.

Degree: Eastern: 6. Western: 3/3*

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Degree: Eastern: 6. Western: 4/2·

From the last figure we see that there is a degree of relationship which in the latin rite is no impediment at all, while in Oriental rites it still prevents a valid marriage.

The impediment of consanguinity may be a multiple one only if the common ancestor is multiplied. This may happen on account of the fol­ lowing occurrences: 1. The blood relations have, besides the common progenitor, one or more common ancestors:

Adam is twice related by consanguinity to Eve because they have not only (1) as common progenitor, but also (2) as common ancestor. Adam

2. Among the ancestors of the blood relations was one who mar­ ried successively two blood relations:

Adam

114

Eve

Adam is twice related by consanguinity to Eve because they have, besides their common progenitor (1), also a common ancestor (2) who was first married to (3) and later to her sister (4)·

3. The blood relations among the ancestors married two persons who were also blood relations:

Adam

Eve

Adam is twice related by consanguinity to Eve because Adam’s father and Eve’s moth­ er were brother and sister, as we11 as Eve1s father and Adam’s mother·

AFFINITY Canon 67. # 1. 1. Affinity as defined in can.68 # 1 invalidates marriage in the direct line in any degree, in the collateral line to the fourth degree inclusively. 2. Affinity as defined in can.68 # 2 invalidates marriage to the fourth degree inclusively. 3. Affinity as defined in can.68 # 3 invalidates marriage in the first degree.

# 2. The impediment of affinity mentioned in can.68 # 1, n.l, is multiplied: 1. as often as is multiplied the impediment of consanguinity from which it proceeds; 2. by a second or successive marriage entered into with a blood relation of the deceased spouse.

The general definition of affinity is needed not only in marriage law, but also in other branches of canon law, since affines are sometimes excluded from holding together certain offices, testifying in court, etc. (cf., e.g., c.481 Sollicitudinem Nostram — c.1974 CIC; c.277 Sollicitudinem Nostram = c.1755 # 2, n.2, CIC; c.263 # 2 Postquam Apostolicis = c. 1520 # 2 CIC). As this definition is found in the CIC among the in­ troductory canons (c.97), so also in Oriental canon law it is inserted in that part of the codification which later will correspond to the Second Book on Persons of the CIC. The corresponding definition is contained in Cleri Sanctitati, c.25. This canon was promulgated only in 1957, and CrAll, published in 1948, had for the purpose of marriage law to offer the same definition, which was done in the above quoted c.68, in all identical with c.25 Cleri Sanctitati,

1. SPECIES OF AFFINITY The Oriental marriage law knows three kinds of affinity: 115

1. FIRST SPECIES OF AFFINITY (FROM DIGENEIA) Canon 68. # 1. 1. Affinity from digeneia arises from a valid marriage although not consummated; 2. it exists between each spouse and the blood relations of the other; 3. in that line and degree in which someone is a blood relation of one of the spouses, he is in affinity with the other.

Affinity between one spouse and the blood relations of the other. This is the only one known in Latin canon law of today (c.97 # 2). It arises from a valid marriage only, whether it was consummated or not. This species of affinity exists among all Orientals, and is an imped­ iment in the direct line in all degrees, and in the collateral line to the fourth degree inclusive (c.67 # 1, n.l). The following examples may occur in practice:

Eve

Koo

Nicholas

Adam wishes to marry Anna, his I late wife Eve's Anna daughter from a former marriage with the late Nicholas« ..Degree of affinity: First degree of the direct line.

Adam

Adam

Adam

Adam

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2.oo

Adam wishes to mar­ ry Anna, a sister of his late wife Eve. Degree of affinity: Eastern: 2. Western: 1· Adam wishes to mar­ ry Anna, niece of his late wife Eve; or Adam wishes to mar· ry Anna, aunt of his late wife Eve. Degree of affinity: Eastern: 3· Western: 2/U

Adam

Adam wishes to mar­ ry Anna, first cous­ in of his late wife Eve. Degree of affinity: Eastern: 4. Western: 2.

Adam wishes to mar­ ry Anna, grandniece of his late wife Eve. (or: grandaunt of his late wife Eve).

Degree of affinity: Eastern: 4. Western: j/U No impediment in CIC.

This last case would not be an impediment in accordance with Latin rite marriage law (c.1077 # 1).

Affinity may exist also as a multiple impediment (c.67 # 2). Such a multiplication occurs: 1. as often as the impediment of consanguinity from which the af­ finity arose is a multiple one; 2. if a spouse married successively several blood relations.

Adam * l.oo Efe I____ 2.00

After the death of his first wife Eve Adam married with a dispensation her Rose sister Anna, and after her death wishes to marry Rose, Eve’s and Anna’s niece.

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2. SECOND SPECIES OF AFFINITY. # 2. 1. By particular law affinity of digeneia mentioned in # 1, n.l, arises also between the blood relations of the husband and the blood relations of the wife; 2. it is to be reckoned in such a manner that there are as many degrees as result from the sum of the degrees of consanguinity by which both affines are distant from the spouses from whose marriage the affinity arose.

This is the impediment which exists between blood relations of one spouse and blood relations of the other. This kind of affinity is an im­ pediment only to the fourth degree inclusive (c.67 # 1, n.2). It exists among the following Oriental disciplines and subdivisions of disciplines (cfr. Coussa, De Matrimonio, p.133): Chaldeans, Melkites, Romanians, Bulgarians, Russians, Greeks from Greece and Turkey, Ethiopians. It is never a multiple impediment. The local ordinary has ordinary power to dispense from this land of affinity in any degree (c.32 # 1, n.2).

The degree of affinity is established by adding the degrees of con­ sanguinity of the person in question in respect to one spouse to the de­ grees of consanguinity existing between the other spouse and the other person in question. Adam married Anna. Joseph, Anna’s brother, wishes to marry Eve, Adam’s sister. Computation: Adam-Eve: 2.degree aonsangu. plus Anna-Joseph: 2.degree consangu. = Joseph-Eve: 4.degree affin.(2.spec·)

3. THIRD SPECIES OF AFFINITY # 3. 1. By particular law affinity, moreover, results from t r i g e n e i a , that is, from two valid marriages, although not consummated, when two persons contracted marriage: (a) with the same third person, after the previous marriage had been dissolved, with one after the other; or (b) with two persons who were blood relations. 2. Affinity resulting from trigeneia exists between each of the spouses and those who are related in affinity with the other party by way of the second marriage on strength of digeneia. 3. This affinity between one spouse and those who are in af­ finity with the other is to be reckoned in such a manner that those who are by the second marriage in affinity with the husband by way of digeneia are in the same degree in affinity with the wife in trigeneia, and vice versa.

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4. When this affinity exists between the blood relations of the one spouse and those in affinity with the other, it is reckoned in such a manner that there are as many degrees as result from the sum of degrees of the consanguinity as well as of the affinity from dige n e i a , by which both of the affines are distant from the spouses whose marriage the affinity arose from.

This species arises from two marriages but affects three marriages, namely, also the now contemplated and impeded one ( = trigeneia). It is the relationship which exists between relations by affinity of one spouse and blood relations of the other spouse. Such a connection of persons results in two cases: 1. When two persons successively are married to the same third person: Anna

3-co

Peter

2.oo

Eve

l.oo

Mic

r

Peter married the widow Eve who had a son Leo by her late hus­ band Michael. After Eve’s death Peter marries Anna, but soon dies. Now Anna intends to marry Leo. Between them exists the impediment of affinity arising from trigeneia. The degreee depends on the degree of affinity of Anna’s late husband Peter to Leo. The degree of Peter’s affinity to Leo in turn depends on the degree of consanguinty of Peter’s first wife to Leo. Since Eve was Leo’s mother ( = first degree of consanguinity), Peter is in simple affinity with Leo in the first degree, and Anna is in the same degree of affinity arising from trigeneia. 2. When two persons are successively married to two persons who were blood relations: Anna

2.oo

Nicholas

1«oo. Helen

1___________ I Catherine

3·«

Joseph

Nicholas marries Anna after Helen’s death by whom he had a daughter Catherine. Nicholas and Catherine are killed in an accident. Anna intends to marry Joseph, widower of Catherine. The degree of affinity depends on Nicholas’ degree of consanguinity to Catherine, and Joseph’s degree of affinity to Nicholas. The result is affinity from trigeneia of the first degree. Affinity from trigeneia exists today only among the Catholic Rus­ sians, Bulgarians, and Greeks from Greece and Turkey (Coussa, De Matrimonio, p.133). It exists also among many dissident Oriental groups. The impediment does not exceed the first degree (c.67 # 1, n.3), and is never a multiple one. The local ordinary has power of granting dispen­ sations.

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Trigeneia as a form of affinity has legal importance only in mar­ riage law. In other legal relationship mention is made solely to “affinitas” and “affinis”, without a further distinction into species. An­ cient Byzantine canon law considered only affinity ex digeneia, and dissident Byzantine law too, e.g., excludes from testifying in court actions only those who are related by affinity ex digeneia from giving testi­ mony in matrimonial trials. It seems that this should appply also in this dubium iuris (cf. Szentirmai, p.49). Latin rite ordinaries who enjoy the power of granting dispensations from the degrees of the first species of affinity, i.e., that mentioned in c.1077 CIC, in virtue of Quinquennial Faculties can dispense also from die other two species of affinity (c.68 ## 2,3,CrAll) their Oriental rite subjects according to the axiom that qui potest maius potest etiam minus. 2. NON-CATHOLIC ORIENTALS AND THE VARIOUS SPECIES OF AFFINITY

In dealing with Orientals who as non-Catholics had entered into marriages we must not forget that they were obliged to observe the respective canons concerning the impediment of affinity. The difficulty which here arises, as far as the impediment of affinity is concerned, re­ sults from the differentiation among Catholic Orientals not only in rites, but also in subgroups of various levels. While, for example, the ancient legislation for the Byzantine rite contained all three kinds of affinity, today some Catholic divisions of this rite have abolished one or the other of them, as the Ruthenians, who retained only the first kind of affinity, the Melkites and Romanians, who discarded affinity from trigeneia, etc. In solving the marriage problems of non-Catholic Orientals, we must find the law applying to their situation in the matter of affinity. The following possibilities could come into consideration: 1. The law of the CIC does not apply since CrAll is the law for all Orientals, Catholic as well as dissident. 2. The law of the corresponding Catholic Oriental community does not apply either. It must be stated that all Catholic Oriental Churches have dissident, non-Catholic, parrallel counterparts, which were left be­ hind in the schism when a certain group reunited with the Catholic Church. The Maronites are an unique exception among Oriental Christ­ ians in that all of them are Catholics. The reasons for rejecting this second possibility are the following: there is no presumption that in issuing laws for the benefit of a particu­ lar Catholic Oriental community the Church intended to oblige also the non-Catholic group of the same rite. The reason for denying the existence of such a presumption is the disproportion between the situation of most Catholic Oriental communities and the corresponding dissident organi­ zation, chiefly in the number of adherents. Catholic communities started usually with a very small number of faithful, eager to be reunited, some­ times without any hierarchy, not seldom after the territory in which they were living came under a different government. The circumstances of life for the Catholic community became in virtue of such events a wholly different one from that of the remaining dissident Church. Legislative 120

measures issued for the benefit of such a Catholic community have often been inapplicable to the respective dissident remainder. It is true that the Church has the power to subject non-Catholics as well as Catho­ lics to her legislation, and, as far as general laws are concerned, there is a presumption that all baptized persons are included in general legis­ lation unless they were expressly exempted. Relative to particular law, such a presumption does not exist. CrAll, of course, being a general law, has legal force for all Orientals, Catholic as well as dissident, unless the latter have been expressly excluded, as in c.90 # 2, in respect to the form of marriage, or in case in which the existence of particular legislation is expressly sanctioned. Such an explicit permission, that particular law can be continued, was given in respect to the second and the third species of affinity (c.68 # # 2,3,). On the other hand, particular law en­ acted for a single Oriental community, does not necessarilv extend to the dissident counterpart. E.g., among Ruthenians there exists only the first species of affinity. The remaining species became obsolete by contrary legal custom. This abrogation took place after the reunion, with the tacit, at least, approval of the Holy See. The elimination of the other kinds of affinity among Ruthenians does not, however, extend to the parent body which they left in returning to the Church. An Ukrainian dissident from Eastern Ukraine, therefore, does not come under the particular law of Catholic Ukrainians in regard to the impediment of affinity. We follow in this discussion the weighty arguments of A. Coussa (De Matrimonio, pp.11-15). He shows the inconvenience of the contrary assumption with such reasoning: 1. Dissidents are entitled to choose in entering the Church what­ ever rite they prefer. In other words, they are not bound to retain the ritual allegiance of their non-Catholic days. 2. Dissident communities are generally permitted in returning to the Church to retain their hierarchy and their actual legislation. 3. It would be practically impossible to apply all the laws for a Catholic community to its Oriental counterpart, because in the past many Catholic Oriental groups were exposed to a strong influence of the Latin rite canon law, creating differences between them and their dissident brethren of the same extraction, who often retained the ancient tradition of their rite. 4. Offices of the Holy See did not actually apply to problematic cases of dissident Orientals laws of the corresponding Catholic rite, but die general discipline (sana disciplina) of that rite, which dates back to the times before the schism. We add a further reason. There is still the possibility of a legal custom, either introducing or abrogating law, which arose in a schismatic or heretic community, to receive die sanction of the Church. It is clear that no legal custom can develop without approval of lawful authority. In reference to dissident Orientals, such an approval was indirecdy gran­ ted by the Holy See when the now Catholic community began its new existence. In the beginning they did not change as a rule the discipline which was in force at the moment of the reunion, and lived for a shorter or longer time in accordance with the same disciplinary legislation exist­ ing in their dissident counterpart, and only later - usually under the in­ fluence of the Latin rite - did they make changes. The explicit or implicit 121

approval which the Holy See granted later to a Catholic group to change the original law did not extend to the dissident counterpart, who there­ fore continued lawfully to apply the ancient legislation of the undivided Church. We will be able to distinguish several periods in the legislative history of a certain Catholic or dissident Oriental group: 1. Time of the undivided Church before the schism. 2. Time of legal developments during the schism. 3. Return of a part of the community to the Catholic Church: dis­ ciplinary peculiarities formed during the schism are retained and receive express or tacit approval of the Holy See. 4. The Catholic group makes changes in the discipline formed during the 2nd and approved during the 3rd period. Such a division into periods of legislative evolution explains how it is possible that dissident Orientals can be governed by particular law which was abrogated in the corresponding Catholic counterpart. The second and third species of affinity became diriment matri­ monial impediments before the separation of the Eastern from the West­ ern Church. However, even if laws were enacted later during the schis­ matic period, they could have received implicit sanction and approval by the Church when a certain part reunited with the Apostolic See of Rome. The observance by a Catholic Oriental community under the auspices of the Holy See of written or unwritten laws, which came into existence during the period of schism, even if such laws were later abrogated for this specific community, is to be considered as tacit approval by legiti­ mate authority. To illustrate the problem of this discussion, let us consider an exam­ ple from the largest group of the Byzantine rite Catholics, the Ukrainians. They belong in many aspects of particular law to the Ruthenian group of this rite in accordance with the nomenclature used by the Holy See. Their non-Catholic brethren of the same national extraction, the dissident Ukrainians, in number several times more, generally are not to be consid­ ered as being comprehended in the particular law for the Ruthenians, since they were not attached to the legal province of the Ruthenian discipline in the last centuries. The validity of a marriage of such an Ukrainian would have to be judged in accordance with the unmitigated Byzantine rite discipline. We may therefore conclude: that the validity of marriages of dis­ sident Orientals, whether contracted before CrAll or at the present time, are to be judged, as far as the various species of the impediment of af­ finity are concerned, according to the discipline of the ancient Church of that rite before the separation, and according to those later changes which were expressly or tacitly approved by the Church for the whole group, Catholic and dissident. 3. INTERRITUAL DIFFERENCES CONCERNING THE EXTENSION OF THE IMPEDIMENTS OF CONSANGUINITY AND AFFINITY

As explained above, there are cases of consanguinity and affinity which constitute only in one or the other rite a diriment impediment, 122

while they may not be impediments in another rite. What is to be done if two persons of different rites, according to one of which their blood relationship or affinity constitutes an impediment while the other does not have it as an impediment, wish to marry each other? Such cases may occur between two Oriental rites or even between two groups of the same Oriental rite. We shall here for practical pur­ poses consider only the possibility of a Latin rite Catholic being involved with an Oriental rite Catholic. As to consanguinuity, the only practical case would be such an example:

Adam intends to marry Eve, his blood relation in the sixth degree according to the Eastern computation, which constitutes a diriment im­ pediment (c.66 # 2). According to c.1076 # 2 CIC this consanguinuity is not an impediment, since the longer collateral line is already of the fourth degree (4/2).

As to the impediment of affinity, we could encounter such a case:

Peter oo (Byz.Hte)

E

Anna (Latin rite) Peter, of the Byzantine rite, intends to marry Anna, of the Latin rite, grandniece of his late wife Eve. According to Eastern computation affinity of the fourth degree is a diriment impediment (c.67 # 1), while c.1077 # 1 CIC does not con­ sider it as such (3/1). In the above cases one party is bound by the impediment while the other would be free to enter marriage with the first party. Which law prevails, the one establishing the impediment, or the other favoring free­ dom from it? F. Cappello, S.J. (De Matrimonio, p.487-488) advocated the principle of communication of freedom from the Latin rite party to the Oriental rite party, and in case this should be rejected, he proposed

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to consider the problem a doubt of law to which c.15 CIC should be applied, i.e., that the law does not oblige. E. Herman, SJ. demands that each party has first to remove all obstacles affecting his person regardless of the other party before being able to contract marriage. Dispensations can be granted by the local ordinary either in virtue of ordinary power, if he is of the Oriental rite, or of delegated faculties, which usually will be even more ample.

PUBLIC PROPRIETY Canon 69. The impediment of public propriety arises from an invalid marriage, whether consummated or not, and from notorious and public concubinage, and invalidates marriage in the first and second degree of the direct line between the man and the blood re­ lations of the woman, and vice versa.

Dispensation from the second degree can be granted by the local Hierarch in virtue of his ordinary power (c.32).

SPIRITUAL RELATIONSHIP Canon 70. # 1. Only the spiritual relationship mentioned in # 2 invalidates marriage. # 2. 1. By way of baptism the sponsor contracts spiritual re­ lationship with the baptized person and his parents. 2. When baptism is to be repeated conditionally, the sponsor does not contract spiritual relationship, unless the same has been employed again.

The impediment of spiritual relationship exists for Orientals only between the godparents on the one side and the godchild and his parents on the other (levans, levatus, levatique parentes). Thus Adam cannot marry Eve, his godchild, or her mother Anna. Cases of spiritual relationship may occur also between Catholics of different rites. Because the Latin rite marriage law does not consider the relationship between the godparents and the parents of the godchild an impediment, conflict of law may result, to be resolved according to the principles treated in connection with consanguinuity and affinity. No impediment exists between the baptized person and the person that baptized him. The reason is an historical one. Baptism admin­ istered by someone who was not an ordained deacon or priest was so rare in the East that the legislator did not consider the case of a baptism conferred by a lay person. The Church again did not consider it op­ portune to introduce into the new Oriental matrimonial legislation an element not found in the tradition of the Christian East. If baptism is conditionally administered, that is, repeated on con­ dition that the first one was not valid, spiritual relationship is estab­ lished only if the same godparent acted at both occasions.

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Not rarely is found among the Oriental rite faithful the mistaken belief that the godparents must be of necessity a man and woman, and that a married couple cannot serve together in the capacity of god­ parents at the same baptism. This is a reminiscence of the supervenient spiritual relationship (cognatio spiritualis superveniens) of the old canon law, which could render the spouses related to each other and thereby forbid matrimonial intercourse between them (cf. Cappello, De Matri­ monio, p.531,ss.) The matrimonial impediment resulting from confirmation is not mentioned in CrAll, and confirmation, although creating spiritual re­ lationship, does not forbid or invalidate marriage, as it did in the pre­ ceding law of, e.g., the Ukrainians (Synod of Zamost). Of course, one should remember that Oriental Christians usually administer the sacra­ ments of baptism and confirmation together, and if they are separated by chance, they try to employ the same godparents. Among some dissidents (Greeks, Russians, Syrian Jacobites, Ethiop­ ians, Nestorians) is known still another form of spiritual relationship as substrate of a matrimonial impediment, namely, that between the wit­ nesses to the marriage assistance, called sponsors, the parents of the nupturients, and their offspring (cf. Coussa, De Matrimonio, p. 159).

GUARDIANSHIP AND ADOPTION Canon 71. Those who are considered incapable to enter mar­ riage between themselves by civil law on account of guardianship or of legal relationship resulting from adoption cannot under canon law validly contract marriage between themselves.

What was said in connection with the prohibitive impediment of legal relationships (c.49) applies also when it is a diriment impediment according to civil law.

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CHAPTER FIVE THE MATRIMONIAL CONSENT (CC.72-84)

Necessity and Definition (c.72 = c.1081 CIC Requisite Knowledge (c.73 = c.1082 CIC) Error of Fact (c.74 = c.1083 CIC) Error of Law Regarding Essential Properties of Marriage (c.75 = c.1084 CIC) Knowledge or Belief Regarding the Validity of Marriage (c.76 = c.1085 CIC) Necessity for Interior Consent (c.77 = c.1086 CIC) Force or Grave Fear (c.78 = c.1087 CIC) Manner of Expressing Consent (c.79 = c.1088 CIC) Marriage by Proxy: 1. Permission of local Hierarch (c.80 = cf.c.1091 CIC) 2. Mandate Appointing Proxy (c.81 = c.1089 CIC) 3. Form of Marriage by Proxy (c.82 = new) Conditional Consent (c.83 = cf.c.1092 CIC) Duration of Consent (c.84 a c.1093 CIC)

NECESSITY AND DEFINITION Canon 72. # 1. Marriage is effected by the consent of the par­ ties, legally manifested between persons who are qualified by law, which cannot be supplemented by any human authority. # 2. The matrimonial consent is an act of the will by which either party gives and accepts the right to the body, both perpetual and exclusive, in regard to actions apt by their nature to procreate offspring.

Dissident canonists and theologians, as well as modem codifications of the dissident marriage law, as, e.g., that of the Serbian Patriarchate, are of the opinion that the sacrament of matrimony is administered by the priest, without whose blessing there can be no valid Christian mar­ riage. They do not take cognizance of situations, as those which exist today in so many places behind the Iron Curtain, where a Driest is per­ manently unavailable to the faithful, who would be therefore perpet­ ually barred from contracting marriage. There is no provision for an extraordinary marriage form in the dissident marriage law as it is in the Catholic Church (c.1098 CIC; c.89 CrAll). Whatever success communism has found in such countries may be partially explained by the stubborn neglect of the vital needs of the faithful as shown by the dissident ecclesiastical authority.

REQUISITE KNOWLEDGE Canon 73. # 1. In order to have matrimonial consent, it is necessary that the contracting parties know at least that marriage is a permanent union between man and woman for begetting children. # 2. Such ignorance is not presumed after puberty.

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ERROR Canon 74. # 1. Error concerning the person renders the mar­ riage invalid.

# 2. Error concerning a quality of the person, though it is the motive of the contract, only invalidates marriage:

1 . if the error concerning a quality amounts to an error con­ cerning the person; 2 . if a free person contracts marriage with a person whom he (she) believes to be free, while, on the contrary, she (he) is a slave in the strict meaning of slavery. Canon 75. Simple error concerning the unity or indissolubility or sacramental dignity of marriage, though it was the motive of the contract, does not vitiate the matrimonial consent.

Canon 76. Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent.

During World War II and the years immediately following, a num­ ber of Byzantine rite Catholics, emigrees from countries occupied by the communists, contracted marriage outside the Church either before a civil magistrate or a non-Catholic minister of religion. Very often these marriages cannot be declared null since a dubium iuris does not permit an unequivocal answer to the question whether an obligatory marriage form bound them in a particular country. They themselves claim with great sincerity to have been convinced that their marriages were invalid because they had never heard in their home country that Catholics could marry outside the Church. Unfortunately, their pleas for an annulment must be rejected in view of the axiom ennunciated in canon 76: their opinion or conviction cannot be taken into consideration as long as they intended to contract a true marriage. Only if they should have excluded by a positive act an es­ sential element of the matrimonial contract, as, e.g., the sacramentality, or the permanency, can they seek an annulment. However, in such a case it is extremely difficult to collect the evidence demanded by ¿he strict rules of judicial procedure.

QUALITY OF CONSENT Canon 77. # 1. The internal consent of the mind is always presumed to correspond to the words or signs used in the celebration of marriage.

# 2. However, if either one or both parties exclude by a posi­ tive act of the will marriage itself or every right to the conjugal act or any essential property of marriage, they contract invalidly.

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FORCE AND FEAR Canon 78. # 1. Invalid is also a marriage entered into be­ cause of force or grave fear, from without and unjustly brought to bear in order to extort the consent. # 2. No other fear, although it is the motive of the contract, carries with it the nullity of marriage.

This canon does not consider the case where a person gave the ex­ ternal signs of consent only, remaining internally opposed, as for in­ stance, if by violent means someone were forced to sign a mandate by which he appointed another person to enter into marriage for him by proxy. The same is to be said if by bodily force someone is compelled to utter the words of consent in church while his will was opposed to the marriage. In such cases no consent was given at all, and the marriage was invalid in virtue of c.77 # 1, since the simple presumption therein stated does not apply in the case, that is, what was given was not a con­ sent at all. Can. 78, on the contrary, applies to the case where a person actually consented to a marriage, giving, however, the consent solely because he considered it the only way to relieve himself from fear. Comparing # 1 of c.78 with # 1 of c.1087 CIC, we find an impor­ tant difference: Canon 1087. # 1. Also invalid is a marriage entered into because of force or grave fear, from without and unjustly brought to bear, by which one was forced to choose marriage as means to free himself (a quo ut quis se liberet, eligere cogatur matrimonium). Canon 78. # 1. Also invalid is a marriage entered into because of force or grave fear, from without and unjustly brought to bear, in order to extort the consent (ad extorquendum consensum). The text as found in c.78 conforms to the definition contained in legal sources prior to CIC, and also to the formula employed by the canon law of the Latin rite Church before the CIC. This ancient definition was to be inserted also in the CIC, but was substituted at the last minute by the formula of c.1087, because it was thought to express better the prevailing doctrine of canonists. The discussion of canonists centered around the problem: is it neces­ sary for the fear that invalidates the marriage contract to be intended by its author to effect the entering of marriage (direct fear), or is it suf­ ficient that the contracting of marriage was the effect of fear even if its author did not have in mind such a consequence (indirect fear). Example: Rose is expecting a child whose father is Charles. James, Rose’s father, threatens to kill Charles if he can find him and expresses most violently his opposition to a possible marriage between Charles and Rose. Charles does not love Rose anymore, but fearing for his life, he arranges to marry her, in the right assumption that James would not endanger his life. Later, the temper of James having calmed down, Charles wishes to have his marriage annulled as invalid because of indirect fear. In such cases, shall not only the intention of him who was subject to threats, or also that of the author of the threats be taken into consid­ eration? According to c.1087 # 1 it is necessary to inquire only into the intention of the party who suffered the fear. If he entered marriage because it was the only way to relieve him from the threats, provided

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they were grave, extrinsic, and unjustly brought to bear upon him, it is unimportant whether the intention of the person threatening was directed to effect the entering of the marriage, or had some other aim. This does not hold for Orientals. Can.78 # 1 states differently, name­ ly, that such fear invalidates marriage which was caused by violence or threats brought to bear upon a person with the intention to induce him to give his marriage consent (metus consultus).

EXPRESSION OF CONSENT Canon 79. # 1. For contracting marriage validly it is necessary for the parties to be present either in person or by proxy. # 2. The parties must express their consent in words, and are not allowed to use equivalent signs if they are able to speak.

Not all Oriental Churches have inserted appropriate formulas in the marriage rite for the expression of the consent. Such easily ascertainable facts, as the coming to the church, the submitting to the wedding cere­ mony, etc., were regarded sufficient manifestations of the consent. How­ ever, according to # 2 the consent should lawfully be expressed by word of mouth. It would not be strictly required that they exchange consent solely after having been requested by the assisting priest; it is sufficient if the exchange of consent is formulated as a part of the marriage rite, as, e.g., the recitation of an oath of fidelity to each other. Persons in­ capable of talking are permitted validly and lawfully to give their consent by equivalent signs.

MARRIAGE RY PROXY Canon 80. # 1. Marriage cannot be contracted by proxy unless in a specific case the local Hierarch granted permission in writing. # 2. The local Hierarch may grant such a permission only in case of necessity, that is, if the parties for a grave reason cannot appear together before the priest. Canon 81. # 1. Unless eparchial statutes are more exacting, in order to contract marriage validly by proxy, a special mandate is required for contracting with a certain person, signed by the mandator and either by the pastor or the Hierarch of the place in which the mandate is given, or by a priest delegated by either, or by at least two witnesses. # 2. If the mandator does not know how to write, this shall be noted in the mandate and another witness shall be added who shall also sign the document; otherwise the mandate is void. # 3. If the mandator revokes the mandate or becomes insane before the proxy has contracted (marriage) on his behalf, the mar* riage is invalid though neither the proxy nor the other contracting party knew it. # 4. In order that the marriage be valid, the proxy must be appointed by the mandator himself, and the proxy must execute the mandate in person.

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Canon 82. # 1. In order to contract marriage by proxy validly, it is necessary to observe the prescriptions of c.85 and 86. # 2. At the time of establishing their common living the parties ought not to neglect to receive the blessing mentioned in c.91 from the priest designated by these canons.

The prevalent opinion among most theologians as well as among the faithful of the Christian East for centuries was that the sacrament of matrimony is administered by the assisting priest. This opinion was held also by Catholic Orientals, and still prevails as far as non-Catholic Orientals are concerned. It is therefore, understandable that the Eastern Churches did not favor marriage by proxy, in which the blessing of the priest cannot be bestowed upon the true contracting parties. Necessity, however, could not overlook this possibility of resolving serious problems of the faithful in special circumstances of life, and the Church permitted therefore in the present codification that marriages be contracted by proxy, establishing, however, certain restrictions which we do not find in the CIC. A marriage by proxy may be entered into solely with the permission of the local ordinary, who shall grant it only in case of necessity (c.80). The written permission of the ordinary, however, is necessary solely for the lawful celebration of a marriage by proxy. As to the mandate itself, we find c.81 identical with c.1089 CIC, except that in # 4 of c.81 there is incorporated the decision of the Inter­ pretation Commission of May 31, 1948, (AAS, 1948, 302), which excludes the possibility that a party could delegate somebody else who. would then appoint the proxy; the contracting party himself has to do that.

In assisting at a marriage by proxy, the priest has to observe the essential form defined in c.85 and 86 (c.82), which includes also some blessing, since this is an essential part of the Oriental marriage form (c.85). From c.82 # 2 it follows that the liturgical form to be observed at a wedding by proxy differs from that of a normal wedding, because it is demanded that the couple shall after coming together receive the usual blessing bestowed upon the bridegroom and bride. This second event has, of course, no canonical effect, since the marriage was already entered into by proxy, but is only of liturgical and spiritual importance. How shall the priest who is to assist at the wedding by proxy know which part of the rite of marriage is to be used and which is to be omit­ ted? The same difficulty exists for the priest who is later to bestow the liturgical blessing upon the couple. If he is a Latin rite priest, he could employ the usual formulary of marriage from the Roman Ritual for the first celebration, and for the liturgical blessing the benedictio sollemnis (c.1101 # 1), which is to be given during Mass. In Oriental rites the pos­ sibility of such a separation is generally not provided for. A priest, e.g., of the Ruthenian (Ukrainian) discipline of the Byzantine rite should use the normal marriage rite for a marriage by proxy, not omitting any part of it. When the couple later demands the liturgical blessing, the priest could make use of the same formulary, leaving out only the inquiry con­ cerning the consent. It would not be necessary to omit the solemn oath taken by the parties. 130

Marriage by proxy is, e.g., not attempted by United States citizens for the reason that the federal government does not accept it as equiva­ lent to a marriage de praesenti in so far as acquisition of citizenship is concerned, until the marriage has been actually consummated, and some states of ihe Union do not permit it at all. American citizens cannot make it possible for aliens abroad to enter the country by marrying them by proxy. In the case of citizens who are sojourning abroad and intend to marry a person residing in the United States, they would have to conform to the formalities of the place of the marriage by proxy. Canon 1090 CIC ^Marriage can also be contracted through an inter­ preter”) was omitted from CrAU. Cardinal Coussa (De Matrimonio, p.178, Ann. (725) ) alleges as the reason that the Christian East did not know such a possibility. However, whenever an interpreter should be indispen­ sable for establishing communication between the assisting priest, the parties and the witnesses, he can validly be employed.

CONDITIONAL CONSENT Canon 83. Marriage cannot be contracted on condition.

As every contract, so the marriage contract too is affected in its validity by conditions agreed by the parties. However, when we inspect c.83 we find only the laconic prohibition of stipulating conditions, in­ stead of the distinctions we find in the corresponding c.1092 of the CIC. It is, therefore, important to know what consequences follow a mar­ riage of Orientals entered into with certain conditions stipulated by the parties. In a general way, we may say that, although c.83 contains an unqualified prohibition of any condition, natural law nevertheless can­ not be abolished. The Church can forbid the illicit apposition of condi­ tions to the marriage contract. She cannot, however, declare them invalid if they actually have been added by the parties and are true conditions sine qua non. The rules of c.1092 CIC, which reflect the natural law, have, therefore, to be applied also to Oriental marriages (E. Herman, S.J., quoted by F. Galtier, S. J., p.215). A. Coussa (De Matrimonio, p.180) simplifies the problem in such a way that he distinguishes two possibilities: if the condition does not af­ fect the substance of the contract, it remains without any juridical effect at all, and is considered non-existent. If the condition affected the sub­ stance itself of the contract, the question arises whether a consent was given at all (“quaestio fieri poterit de ipso consensu praestito vel minus”). A. Coussa’s simple formula seems, however, not to fit every kind of condition. If the condition concerns the past or present, no difficulty at all arises in so far as the validity of marriage is concerned. If the con­ ditions regards the future, the following possibilities may materialize: 1. If the condition is either a necessary one, or impossible, or sinful, but not against the essence of marriage, it is considered as not added to the contract, which means that the marriage is valid. 2. If the condition is against the essence of marriage, it renders the marriage invalid; in other words, no real consent was given, or more

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correctly, no marriage consent was given, since the object of the consent was incompatible with marriage. 3. If the condition is of the future and lawful, it suspends the va­ lidity of the marriage. Lawfulness is here considered as inherent in the object of the condition, not in the act of stipulating the condition, which is certainly unlawful in view of c.83. In this case there is a difference of opinion between A. Coussa and E. Herman. The former - as far as may be inferred from his words would consider the addition of the condition as forbidden, and if added seriously, would consider the consent as non-existent. E. Herman and J. Rezac, S.J. (op.cit., p.390) regard the rules of c.1098 CIC to be defin­ itions of natural law, which consequently cannot be abolished by the Church. This opinion seems to us better founded, because of the in­ admissible consequences of A. Coussa’s opinion. If, e.g., Adam married Eve on condition that her father gives him a certain dowry, then the va­ lidity of the marriage remains, according to c.1098 CIC, suspended until the condition was either fulfilled or was retracted. A. Coussa seems to consider the consent as invalid or non-existent, if it is the case of a true condition, from which it would follow that the consent would have to be repeated, even if the condition has materialized, that is, at the time the dowry is handed over. It should be added, that in the question of a condition affecting the validity of marriage, there can be no difference between the law of the Oriental Churches and that of the Latin rite.

DURATION OF CONSENT Canon 84. Though marriage was contracted invalidly on account of an impediment, the given consent is presumed to persevere until its revocation is established.

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CHAPTER SIX:

THE FORM OF MARRIAGE (cc.85 - 92)

Requisites for Valid Assistance (c.85 =c.l094 CIC) Clerics Authorized to Assist at Marriage: 1. With Ordinary Power (c.86 = c.1095 CIC) 2. With Delegated Power (c.87 = cf.c.l096 CIC) Requisites for Lawful Assistance (c.88 = c.1097 CIC) The Extraordinary Marriage Form (c.89 = c.1098 CIC) Persons Subject to the Marriage Form (c.90 = c.1099 CIC) The Liturgical Rite of Marriage (c.91 = c.1100 CIC) The Recording of Marriage (c.92 = c.1103 CIC)

REQUISITES FOR VALID ASSISTANCE Canon 85. # 1. Only those marriages are valid which are con· tracted with a sacred rite, either before the pastor or the local Hierarch or a priest who received from either of them the faculty to assist at the marriage, and before at least two witnesses; in con· formity, however, with the prescriptions of the following canons, and save for the exceptions mentioned in cc.89, 90.

# 2. As to the effect mentioned in # 1, the rite is to be con· sidered sacred because of the intervention itself of the assisting and blessing priest.

Interpretation issued by the Pontifical Commission for the Redac­ tion of the Code of Oriental Canon Law on January 8, 1953 (AAS, 1953, 104): Question I: Must a priest of the Latin rite, while lawfully as­ sisting at marriages between a Catholic party of Oriental rite and a non-Catholic party, either baptized or non-baptized, observe the pre­ scriptions of canon 1102 if 2 CIC, or the prescription of can.85 of the Apostolic Letter “ C r e b r a All at a e sunt**? Answer: Affirmative in respect to the first part, negative in res­ pect to the second. Question II: Must a priest of Oriental rite, while lawfully as­ sisting at marriages between a Catholic party of Latin rite and a non-Catholic party, either baptized or non-baptized, observe the prescription of can.1102 # 2 CIC, or the prescription of canon 85 of the Apostolic Letter * * C r eb r a e All at a e sunt”? Answer: Negative in respect to the first part, affirmative in respect to the second.

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Interpretation issued by the Pontifical Commission for the Redac­ tion of the Code of Oriental Canon Law on May 3, 1953 (AAS, 1953, 313): Question: Is the word “blessing? in can.85 # 2 to be understood as a simple blessing, or is a certain liturgical rite required? Answer: Affirmative in respect to the first part, negative to the second.

1.

MARRIAGE FORMS IN GENERAL

In discussing ecclesiastical marriage forms of the past often not suf­ ficient attention is paid to the fact that they must be distinguished in ac­ cordance with the legal sanctions which were attached to each of them. Although in centuries past a marriage entered with willful disregard of an obligatory ecclesiastical marriage form was gravely sinful, the mar­ riage itself could have been valid.

The marriage ceremony in the Ancient World was a public contract also, and an occasion for a religious rite. However, no public offical, re­ ligious or secular, was commissioned to represent the state. The Church of the Apostolic era had therefore no special interest in strictly demanding that the marriage contract be concluded in the church and in a liturgical rite, particularly when the parties alone were the ministers of the sacra­ mental action. Nonetheless, it was ruled very early that no marriage should be celebrated without the bishop (St. Ignatius the Martyr to St. Polycarp, 107 A.D.). This does not mean the establishment of an ec­ clesiastical form, but merely that the presence or approval of the bishop should be secured.

Tertullian (197-217) spoke of a liturgical rite of marriage, and ec­ clesiastical legislators of the following centuries are even more explicit; without it they considered a marriage contracted outside the Church in­ valid. Later centuries made it even clearer: who ever married without an ecclesiastical rite committed a sinful act, which sometimes was even punished by an excommunication latae sententiae, but the marriage was thereby not invaliditated. This was an obligatory ecclesiastical marriage form, which was not, however, sanctioned with invalidity of the mar­ riage contract In some parts of the Oriental Church the liturgical marriage form was made obligatory for the marriages only of the nobility or freemen while serfs could marry without the ceremony of coronation.

The last stage of the development of the marriage form, i.e., when it became obligatory and its neglect invalidated the marriage contract, was reached in the Latin rite Church with the Council of Trent (Decree Tametsi). However, even here a limitation remained: Tametsi was not in force everywhere, but solely in certain places. Only the Motu Proprio Ne Temere (1907) and the CIC (1917) made the obligatory marriage form with a sanction of invalidity applicable everywhere for Latin rite Catholics. This strict obligatory form was established also for all Orien­ tal Catholics by the motu proprio CrAll (1949). 134

2. THE LITURGICAL BLESSING AS ESSENTIAL ELEMENT OF THE FORM (c.85)

While the CIO (c.1094) establishes as essential elements of the mar­ riage form the presence of the qualified priest and two witnesses at the moment when the parties, requested by the priest, exchange their con­ sent, CrAll (c.85) adds for Oriental Catholics a third element: the bles­ sing bestowed upon them by the assisting priest. This is an affirmation of the Oriental tradition, uniform in this point, at least during the last centuries, that the act of exchange of consent must be accompanied by a religious, liturgical celebration.

ORIENTAL DISSIDENTS AND OBLIGATORY MARRIAGE FORM Today all Oriental dissidents demand the blessing of the priest as an essential requirement, and they consider marriages contracted without a priest’s intervention invalid. However, this "obligatory” form has no legal standing, according to the principles of Catholic canon law, because it was established as obligatory, i.e., with irritating sanction, after the separation from the Catholic Church, within a community which had lost its legislative authority in virtue of its separation from the Roman Pon­ tiff. Today in the contracting of marriages Oriental dissidents observe a very elaborate ritual, quite identical with that in force among their Catholic counterpart. Since they have a hierarchical organization, which exercises jurisdiction sometimes recognized even by the Catholic Church, there is sometimes the erroneous opinion advanced that marriages entered into by Oriental dissidents without the observance of the religious form prescribed or accepted in their rite should be considered invalid by the Catholic Church too. Marriages of Orientals from the U.S.S.R., who themselves were bap­ tized in the dissident denomination, but who entered marriages solely be­ fore a governmental official, can readily serve as an example. When they later, having divorced their mate, wish to marry a Catholic, must their civil marriage be considered valid, or perhaps invalid because of lack of the form prescribed in their denomination? This problem can refer only to marriages entered into before May 3, 1949, since now it is clear that non-Catholics are not bound by any mar­ riage form. In order to answer this question one should keep in mind the fol­ lowing distinctions: there is no Oriental dissident community which does not possess a liturgical marriage ceremony or form. However, it does not follow that such a liturgical form is or was also obligatory. And even if it is obligatory, as it is at least in recent times, we must ask: what is the sanction attached to this law, be it written or customary? While it is true that all dissident Orientals today demand from their faithful that they enter their marriages before a priest and witnesses, it does not necessarily follow that marriages contracted without the assist­ ance of a priest are always considered by them invalid. However, even if their laws should demand such a religious form for the validity of the marriage, it must be proved that such legislative 135

authority had been granted by the Church, either by specific enactment or by tacit recognition of a legal custom. Neither of these has ever been done. The Church established an universally obligatory marriage form for herself only as late as at the Council of Trent. The argument has been brought forward that the obligatory mar­ riage form among dissident Orientals may have been in existence before the schism and therefore continues its legal force which it acquired in Catholic days. However, the studies of E. Herman, S.J., on the historical evolution of the marriage form within the most numerous Oriental group, the Byzantine rite (“De benedictione nuptiali quid statuerit ius byzantinum sive ecclesiasticum sive civile”, Orientalia Christiana Periodica, 1938, 189-234) showed the conviction that the act of exchanging consent must be accompanied by a religious, liturgical rite, was not persistent through all the times or did not apply to all classes of the faithful, and was never general practice in all places. The same is to be said with even more validity for the other Oriental rites. It might be advanced that the Oriental dissidents by themselves could evolve a legal custom introducing an obligatory marriage form, sanctioning that marriages contracted in defiance of it be null and void. Although this would have to be proved in each single community, the argument can never be raised higher than to a mere hypothesis. Practi­ cally it was never adopted or followed by any office of the Catholic Church, and will not contribute to the solution of problems in practice, i.e., will not overcome the presumption enunciated in c.3 CrAll (c.1014 CIC): in dubio standum est pro valore matrimonii.

3. NATURE OF LITURGICAL BLESSING As to the blessing itself, required by c.85 # 2, as an essential part of the Oriental marriage form, the Pontifical Commission for the Re­ daction of the Oriental Code resolved (cf.text above) that any blessing suffices, as far as the validity is in question, and no specific liturgical act is required. For the lawful assistance at marriage the respective liturgical formularies are to be followed. Many dissident Orientals consider the solemn coronation of the spouses, which consists in an imposition of wreaths or crowns on their heads by the priest, the essen­ tial fom of marriage,' an assumption not substantiated by historical docu­ mentation, although the coronation ceremony belongs to the oldest parts of the marriage rite. This blessing may be sufficiently represented by the recitation of a prayer containing such benediction, and it would not be required that it be bestowed upon the parties with the sign of the cross, as it is men­ tioned by A. Coussa ^solo signo crucis” - De Matrimonio, p.195). We consider also unfounded the assumption of F. Galtier, S.J. (p.237) that the “blessing” refers not to a specific act on the part of the priest, but only to the general attitude with which he performs the act of assistance. The consequence of the hypothesis is that if a priest as­ sists at a marriage in accordance with c. 1102 # 2, he has from the very onset no intention of bestowing any blessing. In assisting at other mar­ riages, he approaches the ceremony with a different attitude, that is, that of a “benedicentis”. Should he, therefore, be prevented immediately fol­

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lowing the exchange of consent from continuing and giving his blessing, his assistance would nevertheless have been complete, according to F. Galtier. The text of the blessing must be appropriate to marriage. The St. Blase blessing of throats, for example, would be utterly inadequate, be­ cause it is not related to marriage. Neither would the blessing given during the Mass accompanying die wedding be adequate. Also such general blessings, which take the place of social greetings, as, e.g., “God bless you”, would be insufficient. The same is to be said of the church­ ing or blessing of the bride after the wedding ceremony, customary in the Byzantine rite. Concerning marriage by proxy, the assisting priest has to bestow a blessing upon the contracting party and the proxy, since this is an es­ sential element of the Oriental marriage form (cf. the section on marriage by proxy). 4.

LITURGICAL BLESSING AND MIXED RITE MARRIAGES

As stated above, there is no place in the sphere of Oriental marriage law for a marriage rite without any blessing, the customary way of mar­ riages entered into in the Latin rite with a dispensation from the impedi­ ments of mixed religion or disparity of worship. What is to be done in cases where a Catholic priest is to assist at marriages of faithful of another rite? Is he supposed to follow the rite of the parties or his own? And if he follows his rite, whether the marriage assisted by him without any blessing will be valid if the parties are of Oriental rite. This question has found an answer in the interpretation of the Pontifical Commission for the Redaction of the Oriental Code of Canon Law of January 8, 1953 (cf. text above). It was decreed that a Catholic priest always follows his own rite when he assists at marriage, without consideration of the rite or rites of the parties. This corresponds to the legal maxim, sanctioned by the approval of centuries, that locus regit actum, i.e., that legal formalities of a juridical act follow local require­ ments (c.14 # 1, n.2, CIC) (A. Wuyts, S.J., p.838). In cases where both parties are Catholics of the same rite or of dif­ ferent rites, no difficulty would arise, because the priest will make use of his entire marriage ritual, which in every rite contains the needed benediction required by c.85 for marriages of Oriental Catholics. No complication can result in case where an Oriental rite priest is to marry a Catholic with a non-Catholic, because he has to follow completely the same liturgical formulary he uses for a marriage of two Catholics (c.91). However, c.1102 CIC, which establishes for marriages of Catholics with non-Catholics a special formulary, consisting only of the essential inquiry as to the consent, while all sacri ritus are excluded, has no counterpart in Cr.All. Nevertheless, in view of the mentioned authoritative interpreta­ tion, a Latin rite pastor who is for some reason to assist at a marriage of an Oriental rite Catholic with a non-Catholic person, has to follow his own form, in accordance with the regulations of his diocese and the decisions of his ordinary. 137

5. DISPENSATION FROM THE MARRIAGE FORM OR

PARTS OF IT Ordinaries and pastors are sometimes confronted with the need to bend backward in order to induce Catholic parties to an invalid mar­ riage to convalidate their invalid union. There are still numerous in­ stances of Byzantine rite couples, or of mixed marriages, who had their marriage blessed by a non-Catholic priest, especially during the difficult times of extreme dearth of Catholic priests of their rite in the wake of World War I. Usually one party is very much desirous of becoming re­ conciled with the Church, to which the other generally is favorably dis­ posed, although refusing to take part in any new marriage ceremony, which, after all, would be a duplication of the identical marriage rite they had undergone many years before.

In the case of such a refusal the ordinary could make use of his Quinquennial Faculties and grant a sanatio in radice. However, it is also possible to take another measure by permitting the pastor to request and receive the marriage consent in forma de praesenti from the couple with­ out the embarrassing presence of witnesses. This would be a dispen­ sation from a part of the essential requirements of the ecclesiastical mar­ riage form. It can be granted only if possible scandal is removed, as, e.g., in the normal case, when the couple is considered by everybody as married in Church. The bishops have the power to dispense from the obligatory marriage form only in virtue of c.33 (danger of death) and c.35 . (urgent case). However, if they enjoy the faculty of granting a sanatio in radice according to the Quinquennial Faculties, which is a total dis­ pensation of all formal requirements, they can certainly grant also a dispensation that gives less, in accordance with the axiom: qui potest maius potest etiam minus.

An instance of such a dispensation in extraordinary circumstances presented itself to an ordinary under the following details: A couple of emigrants from the Ukraine, then residing in Germany, had planned to get married before their immigration to the United States. However, the demands of the pedantic civil magistrate for documentary proof of their free status was such that they were unable to satisfy them in the precarious situation in which they were living. Their priest, who could not assist at their marriage out of fear of reprisals from the state law which punishes a minister of religion should he marry anyone with­ out a preceding civil marriage ceremony, decided to help them by is­ suing a false certificate of marriage, according to which it appeared that they had been married while still living in their native country. They were admonished to straighten out their situation with an ecclesiastical marriage after they had arrived in the United States.

However, when they approached a priest in the United States and became aware that they would have to apply for a civil marriage license, they became frightened lest the United States government should dis­ cover their fraud and subject them to deportation proceedings. With the permission of the ordinary they were married by the pastor with­ out the presence of any other witnesses, in order not to jeopardize the

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secret. As to the requirements of civil law, it was explained to them that the state where the marriage took place granted recognition to com­ mon law marriages. For the existence of such a common law marriage there could be hardly any proof better than an ecclesiastical marriage document, should once such evidence be demanded from them.

CLERICS AUTHORIZED TO ASSIST AT MARRIAGES Canon 86. # 1. The pastor and the local Hierarch assist valid­ ly at a marriage: 1. Only from the day on which they lawfully entered upon the administration of their benefice, or from their entrance into office, provided they have not been excommunicated or interdicted or sus­ pended from office, or been so declared by sentence;

1.

GENERAL CONSIDERATIONS

Oriental rite pastors can validly assist at marriages from the moment of their appointment, although they do so lawfully only after they have taken possession of the office according to the rides of particular law. Oriental rite bishops acquire the same power by canonical provision, provided they possess the episcopal consecration (ct.Coussa, De Matri­ monio, p.197, Ann.805). Cleri Sanctitati Canon 396 # 2 decrees: “Having received episcopal consecration, the bishop: 1. Obtains episcopal jur­ isdiction ...” According to traditional Eastern mentality it is the epis­ copal ordination which makes the priest a bishop, and not the granting of episcopal jurisdiction as such. Cleri Sanctitati has accepted this view in several instances, one of which is embodied in this canon: episcopal jurisdiction can be exercised only after the priest has actually received episcopal consecration. However, he could take possession of the diocese before his consecration, because only in that case would the consecration itself confer upon him jurisdiction. If he has not entered into his office he would obtain by consecration only radical jurisdiction, of which he could make use solely after having taken possession of the diocese.

As to pastors, Cleri Sanctitati decrees in c.502: “From the moment of the canonical appointment, the pastor assumes the care of souls, which he is not permitted to exercise before he has, according to the rules of particular law, taken possession of the government of the parish ...” Oriental law lacks in its genuine form the idea of benefice, and therefore also that of taking possession of the benefice or office in a bodily man­ ner. The present canon has substituted for it canonical provision. It is left to particular law to establish rules according to which the pastor shall assume the administration of his office. However, for the validity of his acts only the fact of his having been appointed is significant, and jurisdictional acts, as, e.g., marriage assistance, performed before the formal assuming of administration, will be valid, although unlawful. 139

2. THE PLACE OF ASSISTANCE AS AN ESSENTIAL ELEMENT OF THE MARRIAGE FORM (c.86 # l,n.2) 2. Only within the limits of their territory, whether the con­ tracting parties are subjects or not, provided they belong to his rite; 3. Provided they are not coerced by force or grave fear to ask for and to receive the consent of the contracting parties.

According to c.86 #2 the faculty of assisting at marriages can be validly exercised only under certain limitations: 1. At least one party must be of the rite of the local ordinary or pastor. To be of the rite of the local ordinary or pastor denotes here actual or possible juridical dependency upon either one or both of them. Thus, limiting our discussion to the situation in the United States and Canada, which is reduplicated in many other places, especially in the Near East, and excluding the problem of a mere lawful assistance, a Latin rite pastor can validly assist at a marriage: (1) of two Latin rite Catholics; (2) of any Latin rite Catholic and an Oriental rite Catholic, though the latter has his own pastor in the place; (3) in which one or both parties are Oriental rite Catholics who have no pastor of their own available. A more detailed treatment of this question will be found in the fol­ lowing chapter. 2. The faculty of assisting can be exercised only within the topo­ graphical limits of the territory of the ordinary or pastor. We must, however, withhold, in accordance with the decision of the Commission for the Codification of the Oriental Canon Law of July 8,1952 (AAS, 1952, 552), all those places which, although situated within die territorial limits of the diocese or parish, are ‘places of the exclusive jurisdiction” (loca exclusivae jurisdictionis) of another ecclesiastical au­ thority: Question I: Do the pastor and local Hierarch in virtue of can.86, # 1, No.2, assist at marriages of faithful of his rite within the boundaries of his territory lawfully and validly also in places which are exclusively of another rite, provided the express consent either of the Ordinary, or the pastor, or the rector of the aforesaid places was given? Answer: Affirmative. Question II: Is the interpretation given in Answer I a declara­ tive or extensive one? Answer: Negative in respect to the first part, affirmative tn respect to the second. Which places are to be regarded as coming under exclusive juris­ diction was not defined in any document of the Holy See. The present Secretary of the S. Congregation for the Oriental Church, Cardinal Acacius Coussa, enumerates as such “churches, the bishops residence, rectories, hospitals, diocesan schools in the strict sense (i.e., erected by the authority of the bishop chiefly for the faithful of his rite)” (De Matrimonio, p.197).

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This coarctation of the pastors power of assistance would also apply to such places which belong to his rite but are part of another jurisdiction of that rite. As an example may serve, e.g., the case of a Melkite (Byzan­ tine rite) priest in the United States, where the Melkites are under the jurisdiction of the Latin rite ordinaries, who wishes to assist at a mar­ riage of two Melkites in a Byzantine rite church which is under the jurisdiction of one of the Ukrainian (Ruthenian) bishops. Although he is of the same liturgical rite, and would perhaps employ the same formu­ lary and language (English), he needs still the consent of the Ukrainian (Ruthenian) pastor or ordinary for a valid marriage assistance. It should not be understood as if these places were entirely with­ drawn from the territory of the local diocese or parish, because of their dedication to the purposes of another jurisdiction, but only that the faculty of assisting at marriage depends in its validity upon the express consent of the other jurisdiction. The required consent is an essential condition stipulated by law for the validity of the marriage. Another example: Basil, a pastor of a Byzantine rite diocese in the United States or in Canada, wishes to marry a couple, both of whom belong to his rite and jurisdiction. Since it is inconvenient to travel to his church, he marries them in a Latin rite college chapel in the place of their residence, which is not a parish church, where he is permitted by the rector to celebrate a private Mass. If Basil received only permission for celebrating Mass, his assistance was invalid. If the rector of the chapel consented also to ihe celebration of the marriage, the couple will be validly married. From this example it is clear that the consent to be granted does not confer any power of assistance, which the rector of a Latin rite col­ lege oratory could not have possessed, not even in respect to Latin rite faithful, but is only an essential condition established by law. It ought to be stated that this innovation in marriage law is more than a peculiarity of Oriental canon law. It is by nature reciprocal and automatically a part of the marriage law of the Latin rite Church. The necessary consent may be granted either by the ordinary or the pastor, or if it is the case of a building other than a parish church, by the respective rector of the institution. Also, those who are delegates of the pastor, ordinary, or rector, can also validly grant this consent. Since the consent is not equivalent to a conferral of power of assistance, any representative of the aforegoing will be entitled to grant it, even if he should not enjoy power of assistance. In hospitals and schools, the competent rector wil be that priest who is in charge of the main church or oratory, or who is entitled to decide in matters of liturgical services. Thus, in a school directed by an organi­ zation of lay men or women the chaplain of the oratory of the school or of the adjoining convent is entitled to give such permission. In case of doubt, e.g., when the small community has a chapel but no appointed chaplain, the local pastor will be considered competent to grant the re­ quired consent. The consent can be given either for each single case or for all cases until revocation. Is it enough to give the consent to any pastor of the other jurisdiction, or must it be granted to an expressly determined priest? Considering the analogy between this consent and the delegation 141

of the faculty of assistance, the consent is to be given to a determined priest. However, implicit determination would be sufficient. Byzantine rite pastors on the American continent begin sometimes the organization of a new parish from an existing Latin rite parish. If the consent to make use of the church, hall, school chapel, etc., was granted for all parochial purposes by the local ordinary or pastor, it may refer to every priest ap­ pointed to the same charge by the Byzantine rite bishop. In rendering its interpretation of c.86 # 1, n.2, the Pontifical Com­ mission for the Redaction of the Oriental Code of Canon Law established not only that the assistance at marriage within the territory of the parish, but in a place of exclusive jurisdiction of another diocese, die express con­ sent of the ordinary, pastor or rector is required for validity, but also that this interpretation does not partake of the nature of a declarative inter­ pretation. A declarative interpretation simply explains the law according to a meaning which was certainly included and needed only further clari­ fication by the legislator. The present interpretation was declared to be an extensive one, i.e., which by its nature was not included in the law, and is nothing else but an extension of the law to a similar case. Because an extensive interpretation is tantamount to a new law, it needs promul­ gation, and has no retroactive legal force (c.17 # 2 CIC). Therefore, should cases come up in which the validity is disputed because the priest had assisted at the marriage in a place of exclusive jurisdiction without receiving the required consent, tire date on which the above mentioned authentic interpretation was promulgated (July 8, 1952) will be of importance. Marriages contracted before that day under the mentioned circumstances cannot be impugned on that account. This coarctation of the territorial jurisdiction of the ordinary and pastor is a significant change in the canon law of the entire Church, the Latin rite included. It was foreshadowed by earlier decisions of the S.Congregation for the Oriental Church, which decided in a letter dated August 23, 1932 (Prot. 541/32); that “an Oriental priest, approved for hearing confessions by the ordinary of his own rite, cannot exercise such faculties, validly and lawfully, within the territory and in places subject to the exclusive jurisdiction of another ordinary of a different rite, unless the latter has granted it to him expressly.” An identical decree was issued by the S.Congregation for the Propagation of the Faith (ci.Bouscaren, C. L. Digest, IL, p.197). 3. MODO SINT SUI RITUS The wording of c.1085 # 1, n.2, points out that an ordinary and pas­ tor can validly assist within their territory at all marriages not only of their own subjects, but also of non-subjects (non subditorum). Does this apply to all Catholics or only to Catholics of the pastor’s own rite? The answer of canonists writing immediately after the promulgation of the CIC reflected the conviction, then prevailing, that the CIC was “the” law of the Church, a supra-ritual legislation. Canon 1 which excluded matters of Oriental rites from die CIC was first understood as granting to the Oriental Catholic Church the right to establish their own peculiar legal system, which however, would be related to the law of the CIC in the same manner as in a community particular law is related to general law. The consequent answer to the above question could thus only affirm that the Latin rite pastor would assist validly at marriages of all faithful, regardless of rite.

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It should be said at once, that if at least one party is a Catholic of the pastor s rite, or a non-Catholic who received baptism in a denom­ ination that traces its origin to the pastors rite, the marriage assistance will certainly be valid. Validity will thus be affected only if both parties are Catholics of a rite and jurisdiction different from that of the assisting pastor, or if one party is a non-Catholic over whom the pastor has no jurisdiction, or an unbaptized person, while the other is a Catholic of a rite and jurisdiction different from that of the pastor. More profound studies into the nature of the legal systems of the Catholic Oriental Churches in their relationship to the law of the other parts of the Church established the principle that each Oriental Catho­ lic Church possesses her own canon law, which is of equal standing in the Church with the law of the CIC. Consequently, the jurisdiction of Oriental rite pastors is not in its nature different from that of Latin rite pastors; it is territorial and personal in the same meaning in all rites. Latin rite pastors cannot therefore have cummulative jurisdiction with Orient­ al rite pastors in the same territory, nor can they assist at marriages of those who are not their subjects but of another rite and jurisdiction. From the perfect equality in law of Oriental and Latin rite pastors it fol­ lows that the term non subditorum must be supplemented with the phrase modo sint sui ritus, as it was done in c.86 # 1, n.2, CrAll. The principle that Oriental parishes are territorial in their relation­ ship with Latin rite parishes in the same territory, and that the former are not in the nature of Latin rite national parishes, holds true even though the same Oriental rite parishes are in the relationship to each other very often national or personal parishes. The prohibition of c.21€ # 4 CIC, to erect parishes according to personal criteria (national extrac­ tion, language, race) without an indult of the Holy See was only recently enacted for the Oriental Churches in c.160 # 4 Cleri Sanctitati. Up till now the Byzantine rite bishops, as well as some Latin rite ordinaries, could and did erect in one territory several Oriental parishes of the same rite or subdivision of rite, dividing the faithful according to personal criteria. The Byzantine rite dioceses on the American continent have thus in some places separate parishes according to national extraction or language (Ukrainian, Rusine, Magyar, Slovak, Croatian). When a schis­ matic congregation returned to the Church, it was sometimes necessary to permit its separate existence in a place where another parish of the same jurisdiction and national extraction was established. In one instance the new immigrants to the United States did not wish to be joined in the same parish with the immigrants of longer standing in this country. Although such Oriental rite parishes have in their mutual relation­ ship the character of personal parishes, in their relationship to the local Latin rite parishes they are to be considered territorial parishes. The premise, therefore, of exclusive equality of all rites, which does not grant power of assistance to pastors of any rite for marriages of non­ subjects, has found expression in c.86 # 1, n.2, by the addition of modo sint sui ritus (provided they are of his rite). From this it follows that if the Oriental pastor assists without specific delegation at the marriage of two Latin rite Catholics, such a marriage is not valid. A further con­ clusion, to be drawn from the principle that pastors of the various rites of the Church should be equal in law, at least as far as the faculty of

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assisting at marriages is concerned, is that Latin rite pastors without specific delegation assist invalidly at a marriage of two Oriental rite Catholics who are not their subjects (cfr. Rezac, op.cit., p.392). The words of c.86 # 1, n.2, were, however, still not considered enough for those who inferred from c.1095 # 1, n.2, CIC for Latin rite pastors the power of assistance at marriages of non-subjects even if they are Oriental rite Catholics who have their own pastors. It was questioned whether the coarctation “modo sint sui ritus” is to be extended to the CIC, or whether it was a peculiarity of the Oriental canon law. The Pon­ tifical Commission for the Redaction of the Oriental Code issued there­ fore on May 3, 1953 (AAS, 1953, 313) the authoritative interpretation quoted above, in which it is expressly said that neither can a Latin rite pastor validly assist at a marriage of two Oriental rite Catholics, nor an Oriental rite pastor at a marriage of two Latin rite faithful. The assistance of a pastor at a marriage of Catholics of different rites will be invalid: 1. If both Catholic parties were not of the pastor’s rite, i.e., not his subjects, as e.g., if a Ruthenian (Ukrainian) and a Melkite Catholic in the United States wish to enter into marriage in a place where both have a pastor of their own residing or at least available. 2. If one party is a Catholic not subject to the jurisdiction of the pastor while the other party is a infidel, i.e., a person who never received baptism. The problem of unauthorized assistance at the marriage of a non-subject Catholic with a baptized non-Catholic is treated in the fol­ lowing section of Rus chapter. 3. If the assisting priest did not become by law a suppletory pastor of the faithful of that rite. Oriental rite Catholics are subject to the local ordinary of another rite if they are outside the territory of their own rite and have no hierarch of their own (c.22 # 3 Cleri Sanctitati). If there are several local ordinaries co-existent in the same territory, then the question to which one Orientals are subject, is to be decided by the Holy See. In the United States and Canada the case of multiple jurisdiction in the same territory is verified. There are in the United States three co-existent, and in Canada two, namely the local Latin rite ordinaries and the Byzantine rite bishops. Melkites or Romanians, for instance, both belonging to the Byzantine rite, do not have their own hierarchy. Are they then sub­ ject to the local Latin rite ordinaries or to the Byzantine rite Ukrainian (Ruthenian) bishops? Though the latter are of the same rite, the Holy See nevertheless saw fit to subject Melkites and Romanians, as well as all other non-Ruthenian (Ukrainian) Orientals, to the local Latin rite ordinaries (Letter of May 30, 1925, of the Sacred Congregation for the Oriental Church to the Apostolic Delegate in Washington; cfx.Duskie, p.67). Here it should be mentioned that a priest with general delegation to assist at marriage (c.87 # 3), granted to him by his Latin rite ordinary for the benefit of all or certain Oriental rites within the diocese, enjoys concurrent jurisdiction over them together with the local pastors, who are not deprived of the power to assist validly at such marriages. How­ ever, if that delegate would be at the same time the pastor for all or some

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Orientals in the diocese, then his faculty of assistance as a pastor would exclude the cummulative jurisdiction of the Latin rite pastors. Marriages which were assisted before the promulgation of CrAll by pastors who lacked, in accordance with the above established prin­ ciples, the power of assistance, cannot simply be declared null and void. Although there were several canonists who already then restricted the faculty of assistance of pastors in regard to “non subditorum” to Catholics of their own rite and/or jurisdiction, still the numerical majority made no such distinction in their works. Their opinion was devoid of internal probability, but on account of their number and reputation possessed external probability. Such a state could be the foundation for supplied jurisdiction. This shall be illustrated by an example: Father Mark, a Latin rite pastor in N., married Basil and Xenia, two Byzantine rite (Ukrainian) Catholics, in 1936, without receiving any delegation, even though there were two Byzantine rite (Ukrainian) pari­ shes in N. There can be no doubt that Father Mark lacked the original power of assistance, since neither party was under his jurisdiction. However, the mentioned opinion held by some canonists extending the meaning of non subditorum even to Catholics of another rite and jurisdiction, could be a sufficient cause for supplied jurisdiction, since such an error was held by many Catholics, faithful and clergy. 4. THE ASSISTANCE AT MARRIAGE OF NON-SUBJECT CATHOLICS WITH BAPTIZED NON-CATHOLICS Cases are not rare of Catholics of an Oriental rite who, in marrying a baptized non-Catholic, usually a member of some Protestant sect, does not wish to celebrate his marriage before a priest of his own rite, al­ though one is available in the place, but approaches for this purpose the local Latin rite pastor. The probable reason for doing so is to be found in peculiar circumstances of his life which made him estranged to his own rite, or which he perhaps has never practiced. Although Latin rite pastors are obliged to refuse any assistance to such an infringement of the law, we are not concerned with the moral theological aspect of the problem. We do not treat either the case in which the Latin rite pastor obtained first permission from the Holy See, or its representative, for such a mar­ riage, and then received delegation from the competent Oriental rite pastor. The only problem here discussed is: whether the assistance of the Latin rite pastor to such a marriage is valid even in the absence of a delegation and permission from the Oriental rite pastor, his ordinary, or higher authorities. Since in the case contemplated the non-Catholic party is baptized, the question whether dispensation from the prohibitive impediment of mixed religion was granted, and by which ordinary, need not be discus­ sed, because it does not affect the validity of assistance. Here is an example: Mark, a Ukrainian Catholic, wishes to marry Grace, a baptized Protestant, before the local Latin rite pastor in Los Angeles, where a Ukrainian pastor is available. If the Latin rite pastor assists at the marriage without delegation either from the local Ukrainian pastor or from the latter’s bishop, will the marriage be valid? 145

In our opinion, the assistance would be valid. We consider baptized non-Catholics to be subjects of die respective territorial jurisdiction, that is: if they received baptism in a denomination that traces its origin to die Latin rite Church, then such non-Catholics come under the juris­ diction of die local Latin rite hierarchical organization, i.e., of the ter­ ritorial ordinary and pastor of diat place. If such non-Catholics received baptism in an Oriental dissident community, they are subjects of the respective Oriental rite pastor and ordinary, and in places where such are not available, they come under the care of the local Latin rite juris­ diction. The reason for this assumption is the general principle of canon law that no subject of the Church can be left without ecclesiastical superiors. Since every baptism, administered in whatsoever religious organization, Catholic or non-Catholic, makes a person a member and subject of the Church, and because authorities of non-Catholic religious organizations have no legal standing in the eyes of the Catholic Church, in virtue of dogmatical propositions that ecclesiastical superiors of whatsoever rank derive their right and power only through their immediate or mediate appointment by the Church, non-Catholics, provided they are baptized, have to be considered as under the care and jurisdiction of Catholic ecclesiastical superiors. If, therefore, baptized non-Catholics have no lawful superiors other than the Catholic hierarchy, then in matrimonal matters they necessarily come under the jurisdiction of the local pastors and ordinaries appointed by the Church, in accordance with their mem­ bership in a certain rite. This principle will be of importance when we are called to judge the validity of a marriage assistance performed in such circumstances: Olga, a Ukrainian Catholic, married William, a baptized Lutheran, before the Latin rite pastor of his place of residence, although there was a Ukrainian parish in the same place. The assisting pastor had hopes that William would soon join the Church in his rite. The couple divorced later, and now Olga wanted to marry Charles, a Catholic of the Latin rite, be­ fore the same pastor. They motivated their request by alleging that the pastor had not been competent for the marriage assistance, and had not received any permission or delegation. However, from the above expoun­ ded principles it follows, that the marriage Olga-William was valid, or at least doubtful, and is therefore sanctioned by c.1014 CIC: in dubio standum est pro vdliditate matrimonii. We have spoken in this chapter only of valid assistance, and this does not apply to the question of lawful assistance. As far as the latter is concerned, we consider as the only lawful competent pastor for as­ sisting at the marriage of a Catholic and a baptized non-Catholic the pastor of the Catholic party. This is the general practice of the Church, justified by the consideration that die interest of the Church and of the Catholic party are much better protected if that pastor assists at the mar­ riage who had a personal relationship to the Catholic party. This is only a general presumption which is capable of an exemp­ tion, as, e.g., in the case where a Catholic wishes to transfer his residence after the wedding to the domicile of the non-Catholic party. In such circumstances the Catholic pastor of the place of domicile of the non­ Catholic party will acquire the right to assist at their marriage either 146

by a stay of the Catholic party in his territory for at least a month, or by receiving permission from the pastor of the Catholic party. The solution of a case by the Sacred Consistorial Congregation (January 28, 1916), published in the Acta Apostolicae Sedis (1916, 64-66), would seem to consider both pastors, that of the Catholic party as well as die Catholic pastor of the place of the baptized non-Catholic, equally competent for a lawful assistance. However, since in the case the non­ Catholic party was already a convert to the Church at the time of the celebration of marriage, the question was confined rather to the problem whether the minimum requirement, a stay of one month, could begin with the day of arrival of the non-Catholic party in that particular place, or only with the day of taking the profession of faith as a convert. Because of this limitation in the formulation of the problem, the case and the solution must be considered not analogous with the case of the marriage of a Catholic with a baptized non-Catholic.

5.

MARRIAGES ASSISTED BY FALLEN-AWAY PRIESTS

In order that the following discussion may be understood, it is neces­ sary to relate some events in the past of the Byzantine rite Ukrainian (Ruthenian) dioceses in the United States and Canada. The establishment of an ecclesiastical organization for the so-called Ruthenian Catholics on the North American continent was seriously impaired from the very beginning by several shortcomings. The most important was the lack of their own ordinary. The immigrants were un­ able to establish an amiable relationship with the Latin rite clergy, chiefly because of their ignorance of the English language. Attached to their native rite without having enough priests of their rite, and there­ fore in constant fear of being absorbed by the more numerous Latin rite Catholics, they were an easy prey of anti-Catholic propaganda spread among them by Protestant sects, and especially by the Russian dissident Church. The latter had experience in missionary activity on the American continent since the second part of the 18th century. The Russian Church had also a cheap remedy for the pressing lack of priests of the Byzantine rite: they ordained anyone who was capable of performing liturgical services, without demanding moral or educational qualities in the can­ didate. For the numerous communities of Ruthenians, deprived of priests of their own rite, the Russian Church, subsidized by the Tsar, ordained through its bishops simple men to the priesthood. Since a large number of the immigrants were illiterate and the divine services were not per­ formed differently from those to which they were used in their Catholic home country, they often may not have been aware at all of the change, or at least did not grasp the import of having accepted a priest from a non-Catholic bishop. Often these priests readily and easily submitted to the authority of a Catholic bishop, who was compelled to accept them, being unable to replace them with better educated priests, if he did not want to lose the whole congregation. The confusion was accentuated by the arbitrary manner these and other priests exchanged their charges on their own accord, without seeking the approval of their Latin rite or­ dinaries. The first bishop of the Ruthenians in the United States, Soter S. Ortynsky, O.S.B.M., who arrived from Europe in 1907, had not yet suc­ 147

ceeded in organizing his flock when World War II broke out and severed all connections with the dioceses of origin, the only source of clergy for the immigrants. Bishop Soter died in 1916, and soon afterwards the United States and the Tsar became allies. This precipated a new wave of attacks by the Russian dissident Church against all those who were Catholics, branding them “Austrians”, i.e., followers of the common enemy, since all the Ruthenians had arrived from various provinces of the AustroHungarian Monarchy. The two apostolic administrators, simple priests lacking episcopal dignity, had not the necessary authority and possi­ bility to take corresponding countermeasures, especially because of lack of priests. With the destruction of the old order in Europe after World War I and the resurrection of new nations, nationalistic problems rendered the ecclesiastical confusion among the Ruthenians even greater. New schis­ matic organizations stepped on the side of the Russian dissident hierarchy. Some Catholic priests, dissatisfied with the measures taken against them, joined schismatic movements. Others withdrew from the obedience of their superiors for a shorter or longer period of time, prefering to head congregations independent from any higher ecclesiastical affiliation, sometimes returning again, sometimes permanently remaining outside the Church. A few, mostly simple men, who were ordained by dissident bishops, changed sides several times, which permits us to assume that they subjectively were not wholly conscious of the seriousness of their actions. In respect to the faithful, it must be said that they often did not understand the gravity of changing affiliation. Not rarely they might not even have been aware of such changes on account of the identity of the external features of worship in Catholic and dissident churches. Marriages entered into by such Ruthenians during these turbulent years are sometimes impugned because of lack of jurisdiction in the priest. E.g., Adam and Eve, both of the Byzantine rite, were married in A. by Father James, who had fallen away, married and joined a non­ Catholic organization, taking with him for a short time his congregation. Adam divorced Eve and wished now to enter a new Catholic marriage. He claims that Father James was a schismatic in 1920 and had been re­ moved from office. Research in the meager records of the chancery archives did not solve the problem. It was merely established that the priest in question became a schismatic and was suspended from office approximately at the time of the wedding, i.e., a period from several weeks before to several weeks after the wedding. Since there remained an unsoluble doubt as to the validity of the marriage, no declaration of nullity could be issued. Again, the Church in A., was founded as a Catholic parish, but from 1920 to 1932 it was administered by a non-Catholic priest, when together with its pastor it returned to the Church. What is to be said of marriages celebrated during this time? Again, the small congregation in B. was for several years virtually without pastoral care because no priest was available. Father Adam, a former dissident priest who had become a convert, being suspended by the ordinary, left his charge and took over the care of the congregation in B. It seems that he received no authorization for this from the ordi­ 148

nary; the archives at least contains no pertinent document. He left when a Catholic priest came to replace him. While Father Adam was in B. he assisted at the marriage of Philip. The latter divorced his wife, and attempted a marriage with another Catholic. Desirous of convalidating this marriage, he wishes to obtain a declaration of nullity of the marriage assisted by Father Adam because of lack of the required faculty of assisting at marriage. What possibilty is there of declaring invalid marriages assisted under the described circumstances? Although there may happen cases in which such a declaration can be granted, in most cases this will be impossible for several reasons: Difficult times made it impossible to keep accurate chancery records, and it is therefore often not possible to ascertain whether a certain priest was in good standing with his bishop or whether he held a valid ap­ pointment to the charge in question, i.e., whether he enjoyed the power of assistance in a certain place at a certain time. If the Official Catholic Directory of the United States listed a certain parish during those years, it can be safely assumed that the priest listed was in possession of the necessary faculty. However, from the absence of a priest’s name or parish from the Official Catholic Directory it does not necessarily fol­ low that he was deprived of such power, because of the very deficient information available to the editors. The archives of the chanceries too are very incomplete for those years. A pastor loses his power to assist at marriages in a parish either by being deprived of his office by legitimate ecclesiastical authority, or by being excommunicated, interdicted or suspended by condemnatory or declaratory sentence. Such a step was often avoided or delayed, at least for a certain time, by the ordinary in order to give the congregation or the priest time for reconsideration or repentance. Due to such con­ ditions, especially the lack of official documents, it is often impossible to establish the accurate day a priest or parish fell away. In granting declarations of nullity it will be necessary to make care­ ful investigation whether the marriage in question has been perhaps convalidated by a sanatio in radice. When an entire congregation returned, or at least the majority, marriages entered into invalidly because of lack of the faculty of assistance in the assisting pastors could have been convalidated either by a general sanatio in radice, which did not mention any marriage in particular; or by a general sanatio in radice of all such marriages, however, individually listed; or, finally, by a sanatio in radice of marriages only of those who expressly applied for it. More often no­ thing was done at all, and the possible invalidity of such marriages has not been removed till the present day. The difficulty of establishing whether a church, congregation, or priest, were Catholic in the legal meaning at a certain time, and, conse­ quently, whether the marriage in question was validly assisted at, is en­ hanced by the fact that non-Catholic Oriental denominations readily call themselves “Catholic”, “Greek-Catholic”, etc. Some of them may formerly have belonged to the Church, retaining now their Catholic name; others may never have had any connection with the Roman Pon­ tiff. The Russian dissident Church in the United States and Canada,

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then, as now, subsidized by die Russian government, used the designation of “Catholic” in these countries with the purpose of easier deceiving Catholic faithful. The solution of cases where the nullity of a marriage is claimed be­ cause of lack of the assistance faculty in the assisting priest is even more complicated by the fact that in not a few cases the congregation may not have been aware that it had been led away from the Church by their pastor. Some priests continued to make the liturgical mention of the Catholic metropolitan in Europe, and they purposely used the word “Catholic” at every opportunity, making their faithful believe that they were still members of the Catholic Church.

However, the most serious obstacle to a declaration of nullity of the aforementioned marriages is now placed by the application of c.152 Cleri Sanditati (c.209 CIC) to the assistance at marriage. The authority of marriage assistance is not a jurisdiction, although the rules concerning jurisdiction apply by analogy also to the marriage assistance. By a de­ cision of the Code Interpretation Commission of March 26, 1952 (AAS, 1952, 497) the prescription of c.209 CIC, concerning the cases when the Church supplies automatically the jurisdiction lacking in an ecclesiastical official, has to be applied also to marriage assistance. In respect to the discussed topic, this refers to the case of common error (error communis). It is not our intention to evolve here the doctrine of common error. We limit ourselves to give some principles which will sufficiently illumi­ nate the problem, leaving more detailed treatment to the proper manual of marriage law (e.g., Cappello, De poenitentia, pp.309-313); id., De Matrimonio, pp.654-657; cf. also C. V. Bastnagel, Undelegated Assistance at Marriage, The Jurist, 1960, pp.55-62).

Common error is the erroneous conviction of the faithful that their priest enjoys the faculty of assisting at marriages. It is an erroneous judgment, resulting from the fact (e.g., his taking actual possession of the pastoral duties) as such, and it is therefore not necessary that a certain number actually erred by drawing the erroneous conclusion as to the priest’s possession of the faculty. Provided the fact exists, and that it may supply the necessary justi­ fication to the faithful for assuming the existence in the priest of a legal title to exercise the faculty of assistance, the Church will supply the de­ fect even in the case if some of the faithful should be well aware of the total lack of any legal title. Common error differs from mere ignorance in that the latter is not based upon a critical consideration, a reasonable conclusion, but is a mere assumption. General erroneous beliefs are also insufficient. It would thus not constitute common error if some of the faithful mistakenly think that all priests are in possession of the faculty of assistance. If they, how­ ever, assume that a certain priest enjoys such power because of some fact ( = title), although he does not do so, the case of c.209 would mate­ rialize. Since it is not required that the priest possesses any title justifying the existence of the fact which induces the faithful into error, even an illegal intruder could receive automatically the necessary power.

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The effect of c.209 CIC and its Oriental counterpart is justified by the demands of common good. This will not be verified if it concerns only one or another case. Error communis supposes that there was a certain number of cases which led to the formulation of the error, al­ though the automatic suppletion begins its force with the first instance of the series of marriage assistance. It is also not demanded that the priest himself be in error. The Church supplies the necessary faculty of assistance also in the case when he is well aware and certain of his lacking the aforementioned faculty; this is done because of the good of the community. The faithful necessarily base their judgement on the assumption that the priest in question possesses a valid title, i.e., authorization from the proper ecclesiastical superior. This ecclesiastical authority can be only the ordinary appointed by the Roman Pontiff. Subjective good faith on the part of the faithful is not sufficient. Their conviction that a dissident bishop enjoys the same faculty, would not constitute the common error contemplated in c.209 CIC. Their external rejection of the legitimate ecclesiastastical authority is presumed as corresponding with their mental conviction, and destroys therefore their good faith. From these principles it follows that a marriage performed by a former Catholic priest, or by a non-Catholic priest in a supposedly Catholic parish, may be declared null and void because of the defect of the faculty of assistance only if 1. it is established beyond reasonable doubt that the assisting priest had no legal title to exercise the faculty in question; and, simultaneously, 2. it is equally clearly proven that the faithful were aware of the defect in the assisting priest. This will most easily occur, if, e.g., they broke away from the Catholic parish and established a schismatic con­ gregation of their own. In many cases a reasonable doubt will remain as to whether the Church had not automatically rendered valid the assistance at marriage by supplying the lacking faculty. In such a doubt, the validity of the marriage is to be presumed (c.3 CrAll; c.1014 CIC) and no declaration of nullity can be granted. The usual procedure in solving problems of a possibly invalid as­ sistance will be a formal judicial trial. The administrative declaration of nullity has no place in such cases because it supposes that the marriage had no speciem seu figuram matrimonii (cf.AAS, 1919, 479). The sum­ mary trial by a diocesan tribunal is equally excluded because it supposes that the evidence submitted consists in unexceptionable documentation (c498 Sollicitudinem Nostram; c.1990 CIC; cf.also Carlos Blanchard, Documentary Evidence in Informal Marriage Cases, The Jurist, 1954, 453-563).

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ASSISTANCE AT MARRIAGE OF CATHOLICS

OF DIFFERENT RITES #2. At a marriage of faithful who belong to different rites that local Hierarch and that pastor can validly assist who according to # 3, n.2-4, is their own Hierarch or pastor. # 3. 1. Unless decreed otherwise, everyone acquires by domi­ cile as well as by quasi-domicile the pastor and the Hierarch of his own rite. 2. When the faithful of a certain rite do not have a pastor, their Hierarch shall assign the pastor of another rite, who is to as­ sume their care after the same Hierarch has obtained the consent of the Hierarch of the pastor so assigned. 3. Outside of the territory of one’s rite, in case there is no Hier­ arch of that rite, the local Hierarch is to be considered as the proper one. If there are several, he shall be considered the proper Hier­ arch who has been assigned by the Apostolic See, or, after having obtained its consent, by the patriarch, if according to particular law the care of faithful of his rite outside the patriarchate has been en­ trusted to him. 4. The proper pastor or Hierarch of a vagus is the pastor or Hierarch of his own rite having jurisdiction in the place where the vagus is actually staying; in case there is no pastor or Hierarch of his rite, the rules contained in n.2, 3, shall be observed. 5. The proper pastor also of those who have only an eparchial domicile or quasi-domicile is the pastor of the place where they are actually staying.

1. LATIN RITE ORDINARIES AND PASTORS AND MARRIAGES OF ORIENTAL RITE CATHOLICS (GENERAL PRINCIPLES) The normal care of souls is exercised by a pastoral ministry of two levels at least, namely, the immediate pastors or parish priests, and the supervisory pastors or bishops. This system of pastoral care must be an efficient one. If the number of faithful of some rite and of their parishes is so small as not to justify the erection of an episcopal authority of their rite in the form of a diocese, apostolic vicariate, prefecture, exarchy, it becomes necessary to subject the faithful and pastors to the supervision of bishops of another rite existing in that region. This maxim was legally established in Cleri Sanctitati: Canon 5. Clerics and religious, including exempt religious, who carry out their ministry in regions in which a rite different from their own is the only existing one, or, on account of the number of faithful, prevalent to such a degree that in public estimation it is considered as alone existing, shall depend on and be subject to the local Hierarch of that rite in all matters pertaining to the sacred ministry.

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Although such an arrangement means in most instances that Oriental rite Catholics are subjects of ordinaries of the Latin rite, there are several areas where Latin rite faithful and their immediate pastors are subject to the jurisdiction of local Oriental rite bishops. It is not excluded that the forthcoming ecumenical council will make similar arrangements for more areas of the Church, especially in the Near East, where the ancient pat­ riarchates are to be expected to receive exclusive jurisdiction. Whenever Oriental rite Catholics outside their patriarchate are in such a minority that no hierarchy of their own can be erected for them, they will, as a rule, be subjected to the local rite ordinary. Cleri Sanctitati decrees: Canon 22. # 3. Outside the territory of their own rite, in the absence of a hierarch of their own, the Hierarch of the place shall be regarded their proper Hierarch.

This norm is applied whenever no hierarchy of their own is estab­ lished for a specific Oriental rite group, as, e.g., for all Eastern rite Cath­ olics in the United States and Canada, with the exception of the Ukrain­ ian (Ruthenian) Byzantine rite Catholics, for whom eight dioceses and apostolic exarchies are erected. A “territory of their own rite” is one where at least an exarchy is established for that specific Oriental rite group. Thus, in respect to the Ukrainians (Ruthenians) on the North American continent, the United States and Canada are such an Oriental territory (cf.c.303 # 1, n.3, Postquam Apostolicis). An “Oriental territory” should be distinguished from an “Oriental region*, which is a place where the respective Oriental rite was observed since ancient times, although perhaps at the present time no hierarchical organization exists there (n.2 of above cited canon). Most Catholic Orientals in the United States and Canada, to exem­ plify the principle with the situation in one region, form only few and numerically shall local groups, or, although numbering larger groups, are very distant from each other. The erection of a hierarchy of their own was not deemed advisable up till now except for the Ruthenians (Ukrainians.) Distance again prevents the respective hierarchy in the Near East from taking efficient care of the clergy and the faithful on the American continent. For this reason Oriental Catholics were assigned to the care of the local Latin rite ordinaries, and, if necessary, of Latin rite pastors. The subjection of Oriental rite Catholics to the local Latin rite clergy is not decreed because of any preeminence of that rite over Oriental rites. We find the reversed situation, e.g., in Italy, where the Byzantine rite bishops of Lungro (Calabria) and Piana dei Greci (Sicily) are not only the ordinaries of their Byzantine rite faithful but also of the Latin rite Catholics residing in their episcopal cities. Where there are several local ordinaries in the same place, the Apostol­ ic See, or in exceptional cases the patriarch, will decide which of the local ordinaries is to be considered the one to whom the faithful of a certain rite will be subject (cf.c.216 # 2, n.2; c.260 # 1, n.2, a; cc.260,261, Cleri Sanctitati). In the United States and Canada we find two and even three local ordinaries in the same territory, namely the Latin rite bishops, the

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Ukrainian Byzantine rite bishops, and (in the United States) the Apostolic Exarch of Pittsburgh. By many acts of the Holy See it has been made clear that all Oriental Catholics, with the exception of the Ukrainians (Ruthenians), are subject to the Latin rite ordinaries. The same principle may be indirectly deduced from other decrees of various offices of the Holy See, especially those which state that the Ruthenians (Ukrainians) in the United States and Canada are exempt from the jurisdiction of the Latin rite ordinary, which subjection is there­ fore to be inferred as the normal rule. Other decisions to the same effect are found in Bouscaren (C.L. Digest: 1:4, 17-24; 11:5-6). The subjection of Orientals to the local Latin rite ordinaries is how­ ever limited. All that concerns peculiarities of rite is to be preserved, and interference of the ordinary is excluded. Catholics are held to the laws of their rite everywhere. Orientals are therefore bound by the disciplinary laws of the local Latin rite only as long as the observance of these laws is not detrimental to their respective rite. The Latin rite ordinaries enjoy in regard to their Oriental rite faithful the same dis­ pensative power which ordinaries of their own rite would enjoy. They are, therefore, entitled to dispense also from prescriptions of the particu­ lar law of that respective rite, as, e.g., established by legal custom, pro­ vincial and patriarchal synods, etc. In regard to marriage, it is necessary to distinguish the relationship and possible jurisdiction of Latin rite pastors over Orientals: whether these Oriental rite Catholics are in general subject to the Latin rite ordinary, or whether they have an ordinary of their own rite in the same territory. These questions are answered in a separate article. Although they will treat the problems as they are materialized in the United States and Canada, it is clear that the principles of solution will have general validity, and be equally applicable in other parts of the world. Another possibility of organizing the pastoral care of Oriental Catho­ lic in the diaspora is mentioned in Cleri Sanctitati: Canon 22. # 2. When the faithful of a rite do not have a pastor of their own rite, their hierarch shall appoint a pastor of another rite, who shall assume their care, after the same Hierarch had obtained the consent of the Hierarch of the appointed pastor.

Again, taking the example from the American continent, the above # 2 would apply to the Ukrainian (Ruthenian) dioceses. However, it does not seem that the Ukrainian (Ruthenian) bishops have ever appointed supplementary pastors with general delegation from among the clergy of the Latin rite. The possible reason was twofold: there are no numeri­ cally significant organized bodies of such faithful without a priest of their own rite; and, on account of the speedy means of transportation availa­ ble in these countries, individuals and smaller groups can easily have re­ course to a priest of their rite, if they care. Single cases have been taken care of by Latin rite pastors very frequently, who received a specific delegation each time for this purpose.

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2. HAVE LATIN RITE PASTORS SUPPLETORY JURISDICTION OVER ORIENTAL CATHOLICS IN A TERRITORY WITH MULTIPLE HIERARCHY?

We have here to distinguish two kinds of organized setups: Oriental Catholics under the jurisdiction of Latin rite ordinaries, of whom the fol­ lowing article treats, and Oriental Catholics who have their own dioceses or exarchies co-existent in the same territory with Latin rite dioceses or apostolic vicariates. In discussing the situation of the latter group, we must again limit ourselves to tile circumstances encountered in the United States and Canada, where at the side of Latin rite dioceses there are found Ukrainian (Ruthenian) dioceses and apostolic exarchies. However, the principles employed to resolve problems originating from this symbiosis can be applied everywhere, mutatis mutandis. The question which is of interest here is the following: does the Latin rite pastor acquire suppletory jurisdiction over subjects of the Ukrainian (Ruthenian) dioceses and apostolic exarchies in places where their own pastors are not available to them. The few hundred thousands of such Oriental rite Catholics are not rarely residing in places from which the nearest pastor of their jurisdiction is hundreds of miles distant. A practical importance of the answer to the above question concerns the validity of marriage assistance and the obligation of observing the ecclesiastical form of marriage. It must be stated at once that some cases of assistance at marriage are outside our consideration, since the problem of validity will not arise, but only perhaps that of lawfulness: 1. Marriages of Ruthenian (Ukrainian) Catholics before the Latin rite pastor after he received proper delegation from the Byzantine rite bishop or pastor. 2. Marriages of Ruthenian (Ukrainian) Catholics with Latin rite Catholics, because the Latin rite pastor possesses the necessary power of assistance even if the Byzantine rite pastor ought have been ap­ proached for lawfulness. 3. Marriages of Ruthenian (Ukrainian) Catholics with baptized Protestants, since also in this case the Latin rite pastor possesses jur­ isdiction over the baptized Protestant. 4. Marriages of Ruthenian (Ukrainian) Catholics with dissident Orientals who received baptism in an Oriental denomination the Cath­ olic counterpart of which is under the jurisdiction of the Latin rite ordin­ ary. For example, the case of a dissident Syrian of the Byzantine rite; the corresponding Catholic Oriental group, the Byzantine rite Melkites, are subject to the Latin rite bishops of the United States and Canada. This applies only to places where the Latin rite bishop has not erected a Melkite parish, because in that case the Latin rite pastors have no jurisdiction over them. The validity of the following kinds of marriages will depend upon our answer to the question whether the Latin rite pastor in the above circumstances has suppletory power: 5. Marriages between two Ruthenians (Ukrainians) of the Byzan­ tine rite before a Latin rite pastor without specific delegation.

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6. Marriages between Ruthenian (Ukrainian) Catholics and non­ Catholic Ruthenian (Ukrainian) before a Latin rite pastor without specific delegation. 7. Marriages between Ruthenian (Ukrainian) Catholics and non­ baptized persons before a Latin rite pastor without specific delegation. In none of the three cases (5., 6. and 7.) comes either party under the regular jurisdiction of the Latin rite pastor. We maintained in our book Interritual Canon Law Problems in the United States and Canada (p.21) that Oriental rite Catholics are in case of inavailability of their own pastors subject to the Latin rite clergy even in the territories where they have their own hierarchy. A study of Cleri Sanctitati, which legislates the hierarchical structure of the Orien­ tal Catholic Churches, did not disclose any specific principle of law which would support such an assumption. The lack in the most recent part of the codification of a provision which would grant by virtue of law itself to Latin rite pastors suppletory jurisdiction in such situations should be an indication that the only source of jurisdiction would be the authoriza­ tion from the respective Ruthenian (Ukrainian) ordinary, granted in each single case, or for all cases in the meaning of can.22 # 2 Cleri Sanctitati. However, as far as it is known, general delegations have not been granted to Latin rite pastors as a group in this country and in Canada by the Ruthenian (Ukrainian) ordinaries. Yet, there is one additional general principle of law which can be invoked, namely, legal custom. It has been always the conviction of the Ruthenian (Ukrainian) Catholic faithful as well as of the clergy of all Catholic rites that in such a situation the faithful of one rite is obliged to seek the ministrations of the clergy of another rite, and that marriages entered into in the United States and Canada must always be witnessed by a priest. In addition it must be said that the above mentioned three classes of marriages would be always valid if assisted at by Latin rite pastors in the defined circumstances in virtue of c.89 of Crebrae Allatae on the extra­ ordinary ecclesiastical marriage form. The only remaining problem would be the case where marriages of classes 3, 4, 5 and 6 were entered into before a civil magistrate or a non-Catholic minister. We are inclined to regard them as invalid because we consider the Byzantine rite Ruthe­ nian (Ukrainian) Catholics obliged to have recourse to the Latin rite pastors in such circumstances. However, even such cases cannot easily arise if we adopt a modem view of the circumstances which are contemplated in the extraordinary ecclesiastical marriage form. The invailability of the proper pastor, his inaccessibility, should be judged according to the circumstances of life in this our times on the American continent. Consequently, considering on one hand the means of speedy transportation which are at the dis­ posal of everyone at not too great an expense, and on the other hand the importance of marriage as a contract from which the parties will draw benefits for a whole lifetime, it is not to be regarded as a great incon­ venience if we demand that they should approach a pastor or Hierarch of their own jurisdiction, although either of them might reside hundreds of miles afar. The same diligence can be expected in this matter which is employed by average people when they seek a competent surgeon for

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a major operation. A similar expenditure of effort and time can be ex** pected from one entering into the holy state of matrimony. We need not feel sorry for them because of the possible inconvenience, since they can avoid it by approaching the local Latin rite pastor who could easily obtain the necessary delegation. In conclusion, our answer is the following: In places where Ruthenian (Ukrainian) Catholics have no pastor of their own jurisdiction available they come under the suppletory jurisdiction of the Latin rite pastor in force of a legal custom observed before and since the indepen­ dent Byzantine rite jurisdiction on the American continent was establi­ shed. For the lawfulness, and sometimes also for the validity, of dispen­ sations needed for such marriages, the Byzantine rite ordinary must be approached. Marriages entered into in such circumstances without the observance of the obligatory ecclesiastical marriage form will be invalid. The Latin rite pastor needs for the lawful assistance at such marriages the permission of the Byzantine rite bishop. 3. THE MARRIAGES OF FAITHFUL UNDER THE JURISDICTION OF HIERARCHS OF A DIFFERENT RITE

(1) General Principle While the net of the Latin rite hierarchical organization, as dioceses, apostolic vicariates and prefectures, independent missions, etc., is quite dense and distributed over the entire globe, no Oriental Catholics are found in many regions, and no hierarchical organization has been provided for them in many places. However, it is a maxim of paramount import that the faithful have to be everywhere under the care of ecclesiastical superiors, who are their shepherds This care is exercised not only by pastors but also by bishops. Such supervision must be efficient, not merely nominal. Cleri Sanctitati orders: Canon 22. # 3. Outside the territory of their own rite, in the absence of a hierarch of that rite, the Hierarch of the place shall be regarded their proper Hierarch. If there are more than one, that one shall be the proper Hierarch, whom the Apostolic See has designated...”

The same norm was enacted in c.5 of the Motu Proprio: Canon 5. Clerics and religious, including exempt religious, who carry out their ministry in regions in which a rite different from their own is the only existing one, or, on account of the number of the faithful, prevalent to such a degree that in public estimation it is considered as alone existing, shall depend on and be subject to the local Hierarch of that rite in all matters pertaining to the sacred ministry.

The above quoted c.22 # 3 uses the term of “territory of their own rite.” This refers to places where at least an exarchy was established for that specific Oriental group (c.303 # 1, n.3, Postquam Apostolicis), i.e., where a hierarchy was erected for them. Such an “Oriental territory”

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is to be distinguished from an “Oriental region*, which are those places where the respective Oriental rite was observed since ancient times, although no hierarchial structure exists there at the present time (c.303 # 1, n.2 Postquam Apostolicis). Where there are several local ordinaries in the same place, the Apos­ tolic See, or in exceptional cases the patriarch, will decide which of the local ordinaries is to be considered die one to whom the faithful of a certain rite will be subject. In the United States and Canada we find two and even three local ordinaries in the same territory, namely, the Latin rite bishops, the Ukrainian Byzantine rite bishops, and (in the United States) the Apostolic Exarch of Pittsburgh. By many acts of the Holy See it has been made clear that all Oriental Catholics, with the exception of the Ruthenians, are subject to the Latin rite ordinaries.

(2) The Marriages of Faithful and the Hierarch of a Different Rite Depending on the number and need of the faithful of a rite dif­ ferent from that of the local ordinary, we can distinguish several stages in the pastoral organization for such faithful provided by the ordinary:

(a) Without Any Separate Organization If the scarce number of Oriental faithful does not warrant a pastoral organization of their own, they are direct subjects of the local pastors of the rite of the ordinary. This norm holds also in the case where a pastor of another Oriental rite, subject to the same Latin rite ordinary, is available to them; Orient­ al rite Catholics are still under the jurisdiction of the Latin rite local pastor. Provided the ordinary has not decided differently, the Latin rite pastor to whom Oriental rite Catholics without a pastor of their own will be subject is die territorial pastor of the place, excluding thereby na­ tional pastors. (b) Episcopal Delegate If Oriental Catholics are in considerable numbers in the diocese, without that they form a nucleus capable of becoming the center of a parish of their own, the bishop can appoint a special delegate, who will be in charge of the marriage affairs of Oriental Catholics, and who will thereby possess the faculty of assisting at their marriages (c.87 # 3 CrAll). This is a canonical institution not found in the Latin rite Church. General power of assisting at marriage is enjoyed only by ordinaries (bishop, vicar general) within the entire diocese, and by pastors within their parish. The CIC permits the granting of general delegation (ad universitatem causarum) to assist at marriages only to the vicar coopera­ tor, and this is limited to the boundaries of the parish to which he is assigned. Other priests cannot validly receive such a general delegation. This principle was again established by the decision of the Interpretation Commission on January 25, 1943 (AAS, 1953, 58), denying the pos­ sibility of granting such a general delegation to a special delegate of the bishop, for example, the chancellor of the diocese. Crebrae Allatae had to take into account the peculiar circumstances in which Oriental Catholics live in many places, and it allowed therefore in c.87 # 3 that an ordinary who has under his care Oriental Catholics 158

of a rite different from his own can grant such a general delegation to any priest. Such a priest may be the pastor or rector of an Oriental rite church, or he may be a priest who is in general charge of some or all Orientals within a diocese. The rite to which the priest himself belongs does not enter into consideration. The ordinary may appoint not only one but several such delegates. He may divide among them his diocese into certain territorial sections, or he may delegate them for the entire diocese, but limit them to one or more rites. The bishop could also appoint such a delegate for those sections where parishes of that particular rite are not erected, and not for the whole diocese. The appointment of such special delegates for one or all Oriental rites does not take away the faculty of assistance enjoyed by the local territorial pastors who are otherwise competent, but confers only con­ current faculties. It is a rule in marriage law that powers delegated by the ordinary and powers possessed by pastors are cummulative, not ex­ cluding each other (Galtier, p.257).

(c) Pastors of Their Own Rite When the situation of an Oriental rite group in the diocese is so far stabilized as to warrant making them independent, the ordinary will erect a parish for them. Can.216 # 3 CIG ( = c.160 # 4,n.l, Cleri Sanetitati) is no obstacle as long as the parish was intended as a territorial parish. Being a territorial parish means that the pastor will have exclu­ sive jurisdiction over his faithful, and the Latin rite pastor or any other pastors who had taken care of them before, whether they were territorial pastors or not, loose thereby their power of assistance (Galtier, p.257). The bishop cannot stipulate that the faithful can choose whether to have their marriages performed in the parish of their own rite or in Latin rite parishes situated within the same territory. Such a condition would be equivalent to the erection of a personal or national parish, for which the bishop needs an indult of the Holy See (c.160 # 4, n.l, Cleri Sanctitati). Such Oriental parishes may be established either for one rite, or for one subdivision of a rite, or for several subdivisions together. This latter could be done if the number of each group of faithful does not permit the erection of separate parishes, but joined together it would be pos­ sible, and the discrepancies of rite, language, extraction are not too great, as between Syrians and Maronites. Catholics on the American continent rarely make use of this possibility, while dissidents often start the erec­ tion of a congregation by joining with followers of the same rite, often of widely disparate extraction, as Arabs, Romanians, Serbs, Russians, all of the Byzantine rite. The Latin rite ordinary may, in establishing an Oriental rite parish, assign to it definite territorial limits, which ordinarily cannot be omitted if there is more than one parish of the same kind in the diocese. If no limits have been established, the parish is presumed coterminal with the diocese, i.e., has the territorial boundaries of the diocese. (d) Vicar General The IV Lateran Council (1215), having in mind the ecclesiastical situation of Cyprus, occupied by the Crusaders, demanded that the Latin

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rite bishops appoint a vicar or auxiliary bishop if the number of Oriental faithful of the diocese warranted it. The appointment of more than one vicar general in a Latin diocese because of “rituum diversitas” was men­ tioned in c.366 # 3 CIC. The same provision was made in Cleri Sanctitati: Canon 432. # 4.1. If in a diocese of the Latin rite there are com­ munities of faithful of the Oriental rite, a syncellus shall be appointed to take care of them. If possible, he should be of an Eastern rite, otherwise a Latin rite priest may be appointed, who is qualified and well versed in Oriental matters. 2. This syncellus should show complete charity and prudent zeal towards baptized non-Catholics of the Oriental rite.

No such vicar general exists at this time in any Latin rite diocese of the United States or Canada. The Archdiocese of Philadelphia had several decades ago a special vicar general for Oriental rite Catholics. The reason for not making use of the appointment of such a vicar gen­ eral is the small number of Oriental faithful under the jurisdiction of the individual Latin rite ordinary; none of them has more than seven parishes under his jurisdiction. In other parts of the world, several Latin rite ordinaries are aided by such Oriental rite vicar generals in the care of their Oriental rite faithful. This is the case in Brazil, Argentina, Great Britain, and other places, where the Holy See has given them auxiliary bishops for the Ukrainian Catholics, who are mostly vicar generals of the chief bishop of the country, who himself is invested with the dignity of apostolic exarch for that particular group of Catholics.

THE DELEGATION OF THE FACULTY OF ASSISTANCE Canon 87. # 1. 1. The pastor and the local Hierarch who can validly assist at marriage can also grant the faculty to another priest to assist within the limits of their territory at a determined marriage, provided they do it expressly and the priest has been determined. They can also grant to the same priest the power to subdelegate another specified priest to assist at that marriage.

Three kinds of acts of will are mentioned in marriage law as pro­ ceeding from ordinaries or pastors in connection with the assistance of marriage: 1. They are sometimes transmitting the power or authority of validly assisting at marriages in their territory to another priest. This is properly called delegation, or subdelegation if a delegated priest was interposed. 2. They are sometimes requested to grant their consent that the marriage be celebrated elsewhere, in a place where some other pastor has the faculty of assistance. This is now called licentia (c.88 # 3). 3. They are sometimes asked to permit the celebration of a mar­ riage assisted by a priest of another co-territorial jurisdiction in their own

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churches or oratories; this permission is named consensus (Oriental Code Commission, July 6, 1952). It was confusing that c.1096 CIC called the delegation a licentia, and there was also no accepted term for the power or authority resting in the ordinary or pastor. Not rarely it was said of the pastor that he had no jurisdiction, or even that he lacked “delegation”. Can.87 therefore calls this right of the ordinary, pastor, and priests delegated by them, “facultas assistendi matrimoniis”, and has omitted the equivocal use of licentia. 2. The vicar cooperator can also obtain the general faculty to assist at marriages from the pastor or the local Hierarch; once it has been obtained, he enjoys the faculty to subdelegate as in n.l.

3. A faculty granted against the prescription of n.l,2, is void.

Can. 140 Cleri Sanctitati (c.199 CIC) defines the rules according to which jurisdiction may be transmitted by delegation and subdelegation. Although the faculty of assisting at marriages is strictly speaking not jurisdiction, nevertheless the same rules apply by analogy also to the authority to assist at marriage as authoritative witness. In accordance with the above mentioned rules, the ordinary and the pastor, i.e., all those priests who come in law under the definition of “pastor” in matters of marriage, may delegate the faculty of assisting at marriage to other priests on these conditions: 1. General delegation for assisting at all marriages may be given only to the vicar cooperator, and this delegation is limited to the parish to which he is assigned. 2. Special delegation for assisting at certain, determined marriages may be granted to a determined priest. 3. Any priest in good standing and capable of performing the rite is qualified of being delegated. Priests of another rite can also receive such delegation, provided they perform the marriage ceremony according to the rite of the delegating ordinary or pastor. If they were to celebrate the marriage according to their own rite, different from that of the Catholic bridegroom, they would need an apostolic dispensation. 4. The ordinary or parish-priest (parochus) who delegates a deter­ mined priest for a determined marriage may grant the power to subdele­ gate a definite priest for the same marriage. This is from the reply of the Code Commission of December 28, 1927 (AAS, 1928, 61): “Whether a pastor or ordinary of the place, who in accordance with can.1096 # 1, has designated a certain priest to assist at a certain marriage can also give him permission to subdelegate another certain priest to assist at the same marriage. Reply: In the affirmative”. Does it follow from the above decision that the vicar cooperator too, provided he possesses general delegation, can in subdelegating a deter­ mined priest to a certain marriage grant to him the faculty to subdele­ gate another priest to be determined by the latter? Example: Father Andrew, the pastor, left the parish for three days. Father Benedict, his vicar cooperator, who received general delegation for assisting at all marriages, is supposed to assist at the marriage of a couple. However, he too is called away. He asks therefore Father Charles,

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the superior of a convent, to substitute for him, but receives an indecisive answer. Father Charles fears himself to be prevented from coming, and asks permission to send a priest whom he will choose later. Can Father Benedict subdelegate Father Charles and grant to him the faculty to sub­ delegate another priest determined solely by Father Charles? Can. 140 # 4 CrAU (c.199 # 5 CIC) says only that “no subdelegated power can be further subdelegated unless this was expressly permitted.” The problem is therefore: who is the one entitled to grant the mentioned permission: that one who holds the power in virtue of his office ( — or­ dinary power), in our case the ordinary and pastor, or also those who enjoy it in virtue of a general delegation, i.e., also a vicar cooperator? Some canonists conceded the right to grant the permission referred to in c.199 # 5 CIC only to those who possess the power of assisting at mar­ riage in virtue of their office. This seemed to exclude vicars cooperator, who need a special delegation to enjoy the same faculty. However, some canonists were inclined to consider the vicar cooperator’s power of as­ sisting at marriage as belonging to his office, although in its valid exercise conditioned upon the granting of the specific consent on the part either of the ordinary, of the diocesan statutes, or the pastor. The opinions being divided, it was not sure whether a vicar cooperator could safely grant to a priest subdelegated by him to assist at marriage the permission to subdelegate another choosen by the subdelegated priest himself. CrAll resolved the problem by granting in c.87 # 1, n.2, to the vicar cooperator the same right which is enjoyed by the ordinary and the pastor, i.e., once he has received the general delegation for assisting at marriage, he may subdelegate another expressly determined priest and grant to him the faculty in virtue of which the subdelegated priest may himself choose another priest to substitute for him. # 2. The faculty mentioned in # 1, n.l, shall not be granted until all the requirements established by law in regard to the proving of the free status have been satisfied. # 3. Local Hierarchs who according to law have the administra* tion of faithful of a different rite can grant to rectors of churches of any Oriental rite, or to other priests who have the care of faithful deprived of a pastor of their own rite, the general faculty to assist at marriages of the faithful of an Oriental rite, though it is a rite different from that of the rector or priest.

This difference between the CIC and CrAll, namely, the creating of the institution of an episcopal delegate in rebus matrimonialibus, was treated in the foregoing chapter on the faithful under the jurisdiction of hierarchs of a different rite. The right to grant general delegations for the assistance at marriage is conceded to ordinaries only in respect to faithful of another rite; for the Catholics of their own rite they cannot appoint such delegates. A religious who preached many missions in a Byzantine diocese on the North American continent was charged and empowered by the bishop with the task to convalidate the many marriages, invalidly attempted by the faithful in schismatic churches of that rite, of which he became cog­ nizant during his successful preaching tours.

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As he related it, whenever he found out in the confessional that a marriage was invalid because of the lack of the proper form, he enjoined the penitent to approach him in the sacristy with his or her spouse. There he requested and received simply their consent in the presence of the sexton and another person, took down the necessary information, and without any further religious ceremony dismissed them. At the end of the mission he submitted the information to the pastor for recording it in the marriage register. These convalidations were invalid at least for one reason, namely, the lack of the proper delegation for each from the pastor. Since the mis­ sionary did not impart any blessing in connection with the exchange of consent, the obligatory Oriental rite marriage form was not observed, and marriages contracted after May 2, 1949, must be considered invalid also for this reason.

REQUISITES FOR LAWFUL ASSISTANCE Canon 88. # 1. The pastor, however, and the local Hierarch as* sist lawfully at a marriage: 1. after the free status of the contracting parties has been legal* ly ascertained according to law;

2. after moreover the domicile or quasi-domicile or a stay of one month or, in case of a vagus, the actual sojourn of either party in the place of the marriage has been ascertained;

3. in the case of deficiency of the conditions defined in n.2, after having obtained the permission of the pastor or the Hierarch of the domicile or quasi-domicile or of the place of the monthly sojourn of one of the spouses, unless it is the case of vagi who are actually traveling and have nowhere a place of sojourn, or there is grave necessity which excuses from asking the permission.

# 2. The pastor has to have moreover, if particular law de­ mands it, the permission of the local Hierarch to assist lawfully at a marriage.

1.

GENERAL CONSIDERATIONS

Some Oriental rite communities demand for each marriage assistance the preceding approval of the bishop. One should not forget that in the Oriental Churches the marriage banns are an obligation of particular law only (cf.c.12 CrAll), and closer supervision by the bishop feasible due to the smallness of the dioceses. This rule was established for the Copts by a decree of the S.Con* gregation for the Propagation of the Faith on March 15, 1790 (Col­ lectanea, I, p.373). It was also observed in dioceses of the Melkite Patriarchate (Galtier, p.262). The Synod of Lebanon (1720) ordered for the Maronites that for a marriage in which one party belongs to another diocese the lawful per­ formance of the marriage banns is to be attested by the ordinary in whose territory the marriage ought to be contracted, who shall also grant a written permission to procede to the marriage rite (Galtier, ib.).

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A similar prescription became common law in the Latin rite Church by being incorporated in # 4 of the decree of the S.Congregation for the Sacraments of June 29,1941 (AAS, 1941, p.297). However, this instruction was not extended to the Oriental Catholic Churches.

2. THE PASTOR COMPETENT FOR LAWFUL ASSISTANCE # 3. A marriage shall be celebrated before the pastor of the bridegroom unless either legal custom provides otherwise or a just reason excuses. Marriages of Catholics of mixed rite, however, are to be celebrated in the rite of the man and before his pastor, unless the man, having his domicile or quasi-domicile in an Oriental region, consents to have the marriage celebrated in the rite of the bride and before her pastor.

Interpretation issued by the Pontifical Commission for the Redaction of the Code of Oriental Canon Law on May 3, 1953 (AAS, 1953, 313): Question: Does the prescription of can.88 # 3 “... marriages of Catholics of mixed rite are to be celebrated in the rite of the man and before his pastor” annul the prescription of can.1097 # 2 CIC "... marriages of Catholics of mixed rite, except the case where particular law states otherwise, are to be celebrated in the rite of the man and before his pastor ...”? Answer: Affirmative. # 4. The pastor who assists at a marriage without the permis­ sion required by law does not make the stole fee his property and is obliged to forward it to the proper pastor of the contracting parties.

(1) GENERAL CONSIDERATIONS Can.88 # 3 CrAll declares that the marriage of two Catholics of the same rite should be celebrated (celebretur) before the parish priest of the groom, unless legitimate custom decrees otherwise, or a just cause excuses; the marriage of two Catholic of mixed rite is to be celebrated (celebranda sunt) in the rite of the groom and before his parish priest. In deciding which pastor is competent to assist at a marriage, at­ tention is to be paid to the following criteria: 1. The domiciles, quasi-domiciles and the place of sojourn of one month of the bridegroom. He has a free choice in this respect, granted to him by the law. Important financial and social considerations might prompt him to elect, e.g., of having his marriage celebrated in a quasidomicile instead in the place of a domicile. He can make use of his choice even if he should thereby create an impossibility to have his mar­ riage blessed by a priest of his rite; he might prefer a quasi-domicile where perhaps there is no pastor of his rite available. This will work in many instances against the interests of the Oriental rites, but the legislator has given no possibility to curtail the bridegroom’s right of choice from among his domiciles and quasi-domiciles. 2. The rite of the bridegroom is the next consideration. It enjoys precedence over the right of his pastor of another rite. The demand of the legislator to have the marriage performed in the Oriental rite of the bridegroom is of privileged import. The law stipulates that the marriage 164

shall be celebrated in the rite of the bridegroom, not satisfying itself with ordering solely that it be before the pastor of the bridegroom. There­ fore, in the event that the pastor of the bridegroom is of another rite, the marriage is to be celebrated before the pastor of the bride, provided he is of the rite of the bridegroom. Example: Adam, a Melkite Catholic, resides in A., where he is a sub­ ject of the local Latin rite pastor, since there is no Melkite pastor in the entire diocese. Adam wishes to marry Xenia, a Melkite Catholic, re­ siding in B., where she is a subject of the local Melkite pastor. The mar­ riage is to be assisted in the Melkite rite by the pastor of B. However, if the parties have sufficient reason to celebrate the wed­ ding in A. instead of in distant B., they would be permitted to do so, in which case the Latin rite pastor of A. will be competent. 3. Finally, among the various pastors of another rite, or among the several possible pastors of the rite of the bridegroom, that one possesses the right of assistance who is his own pastor, again to be decided in ac­ cordance with the rules on the acquisition and loss of domiciles, quasi­ domiciles and the sojourn of one month (cc.220-22 Cleri Sanctitati; cc.9295 CIC). (2) MARRIAGES OF PARTIES OF THE SAME RITE From the general considerations on the meaning of the legal term ritus we know that it is still undefined and varies in its application in different contexts. As far as marriage assistance is concerned, it must be emphasized that the faculty is assigned to pastors not with respect to their liturgical rite but rather to the jurisdictional organization to which they belong. What we mean is this: Melkite, Romanian, Maronite, or Ukrainian pastors enjoy the faculty of assistance not inasmuch as they are members of the Byzantine rite, but insofar as they belong to a cer­ tain diocese; the Melkite, Romanian, Maronite, and other Oriental pas­ tors, to the respective Latin rite diocese, the Ukrainian or Ruthenian pastors to their own dioceses. A Melkite pastor, e.g., would be therefore incompetent to assist at the marriage of Ukrainian Catholics, and if the one party is of the Latin rite or an unbaptized person, his assistance would be invalid, in spite of the fact that the Melkite pastor is of the Byzantine rite and makes use perhaps of the same English ritual of marriage as would the Ruthenian pastor do. Because the separation between the two Byzantine rite Ruthenian and Ukrainian jurisdictions of Philadelphia and Pittsburgh was not one directly affecting individuals but parishes, their jurisdictional interre­ lationship is in the nature of that existing between two Latin rite dio­ ceses. In other words: if a pastor of the Pittsburgh Apostolic Exarchy should assist at the marriage of Ukrainians, he would act validly, though perhaps, depending on the circumstances of the case, unlawfully. When both parties belong to the same Oriental jurisdiction, as, e.g., both are Melkites or Ukrainians or Romanians or Maronites, the mar­ riage is to be assisted by the pastor of the bridegroom, except if (1) a lawful custom or (2) a just reason provides the contrary. The bridegroom’s pastor is the pastor of the place where he has a domicile, quasi-domicile, or where he resides for at least one month. If

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he has several domiciles or quasi-domiciles, or resides outside his domi­ ciles and quasi-domiciles in a place for at least one month, he may choose freely from among the pastors of all these places. It is clear that these several pastors a person can have, could be of different rites. John, a Maronite Catholic, e.g., has his domicile in A., where he belongs to a Maronite parish. He has also accepted a tem­ porary teaching position in B., in a distant state, where he is now re­ siding for eight months. There is no Maronite pastor available in B.» and John s pastor in this his quasi-domicile is therefore the local Latin rite pastor. John intends to marry Catherine, a Maronite Catholic, also from A., but wishes to have the marriage performed in B. Is this permissible, i.e., marriage assistance in the Latin rite, without an Apostolic dispensation? Although it is quite sure that the legislator would prefer that such a marriage be celebrated in the liturgical rite to which both parties be­ long, still John cannot be deprived of the general right accorded in can­ on law to all nupturients to be married according to their free choice by a pastor of a quasi-domicile or a place of sojourn of one month. Lawful custom, as mentioned in this connection in c.88 # 3, exists among Ruthenians - Ukrainians. If both parties are of the Ruthenian (Ukrainian) jurisdiction, whether belonging to the same diocese or to different dioceses, the marriage is to be performed as a rule by the bride’s pastor. This holds both in the case when both Ruthenians are subject to the same bishop, or bishops of the same jurisdiction, as well as in the case when they are under different jurisdictions, as in the United States, where the Philadelphia Ecclesiastical Province of the Byzantine rite and the Apostolic Exarchy of Pittsburgh are co-existent in the same territory.

Just cause is another reason for reversing the order. Any truly just reason suffices, and if both churches in question are in different places, or at least sufficiently distant from each other, the desire of the re­ spective parties may be always presumed reasonable. The pastor who was selected by the parties in virtue of this faculty is competent to judge whether the reason was justified. He will be ob­ liged to submit his reasons to the ordinary if requested. He is not ob­ liged to inform the pastor who according to law would be competent, though this is advisable. If the parties wish to celebrate their marriage before a pastor who would be neither the bridegroom’s nor the bride’s pastor, they must re­ ceive permission from the competent pastor or his ordinary. In case of necessity, such permission may be presumed (c.88 #1, n.3). It is required in some dioceses that the stole fee be paid by the parties to both pastors, or that it be divided among them in accordance with a certain proportional key established by particular law. It would be, however, erroneous to assume that it is only a financial matter, and if the stole fee be paid, that the other pastor loses automatically his right to assist at the marriage. The performance of a marriage rite by a certain pastor and in a certain church has other important aspects of a social nature which go beyond financial considerations. It would be thus un­ lawful for the pastor of the other party simply to arrogate to himself the

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right to perform the marriage, in the absence of justifying reasons, be­ cause he is willing to indemnify the other pastor; he must secure the latter’s express permission. A pastor who either requested and received from the competent pastor such a permission to assist at a marriage, or did it in virtue of a presumed permission, is obliged to satisfy the law in respect to the prenuptial investigation . If this was done by another pastor prior to his request, the latter shall, in granting the permission, forward to him all the files.

(3)

MARRIAGES OF CATHOLICS WITH NON-CATHOLICS

If one party to a marriage is a baptized or non-baptized non-Catholic, the competent pastor wiD be the pastor of the Catholic party. This will be usually a pastor of the Catholic party’s rite, but in places where no pastor of that Catholic Oriental rite is available, the local Latin rite pastor is entitled to assist at the marriage. He needs no special permis­ sion for this. Naturally, the same situation could be reversed as to the rites in places where Lajin rite Catholics are under the jurisdiction of Oriental rite pastors because of absence of pastors of their own rite. Since a dispensation from the impediment of mixed religion or dis­ parity of worship is necessary, the competent pastor has to forward the application to the competent ordinary. If it is the case - in the United States and Canada - of a non-Ruthenian Oriental, this will be the local Latin rite ordinary. If the Catholic party is a Catholic of the Ruthenian (Ukrainian) jurisdiction of the Byzantine rite, the application is to be submitted to the respective bishop. If a pastor of the Oriental rite of the Catholic party is available, the local Latin rite pastor has no right to assist at the marriage, and his as­ sistance would be even invalid without proper delegation if the other party is an unbaptized person. Latin rite pastors are sometimes approached by Oriental rite Cath­ olics with the request to assist at their marriage with non-Catholics though a pastor of their Oriental rite is available without difficulty. It is improper for the Latin rite pastor to consider such demands. Petitions for dispenation from c.88 # 3 ought not be presented to the Apostolic Delegate. Even if the Apostolic Delegate should grant the request, he will in the case of Ruthenians (Ukrainians) direct the pastor to apply to the respective Ruthenian (Ukrainian) bishop for the necessary dispen­ sation from the impediment. One cannot easily imagine a just reason for an Oriental Catholic to marry a non-Catholic in another rite’s church in spite of having available a church of his own rite. Should he be moti­ vated, as it is not rarely encountered, by his preference for the Latin rite, sooner a change of rite should be contemplated, which will render lawful his entire situation now and in the future. (4)

MIXED RITE MARRIAGES

(a) THE LAW 1. If the parties belong to different rites, the marriage is to be celebrated in the rite of the groom and before his pastor c.88 # 3). This applies to the case of a Latin rite Catholic marrying an Eastern rite 167

Catholic as well as to the case of two Catholics of different Oriental rites. One exception is permitted: in Oriental regions, i.e., where the Oriental rite was observed since antiquity, although there may be no Oriental hierarchical organization in existence in our times (c.303 #1, n.2, Postquam Apostolicis), the parties can agree to have the marriage rite performed in the bride’s rite. In other circumstances, the parties to a mixed rite marriage have no choice. 2. The rules concerning the competence of pastors for a law­ ful assistance are based on the assumption that a choice between various pastors is possible. Should there be no choice, because there is no pastor of that Oriental rite available, then die pastor who has jurisdiction of the bridegroom enjoys priority over that of the bride. Example: George, a Melkite Catholic, intends to marry Ann, a Latin rite Catholic. There is no Melkite priest available. The Latin rite pastor of George is entitled to assist at the marriage. A Byzantine rite priest of another jurisdiction, who could assist at the marriage would not possess the faculty. It> is however according to the mind of the Church that such a priest perform the marriage rite, should George desire it, since it is the intention of the Church to pre­ serve the Oriental rites not only as separate jurisdictional but also as liturgical entities. This priest would need delegation from the pastor or the ordinary. Inasmuch as it is the case of the same liturgical rite, no permission of the Holy See is necessary. 3. Two criteria are established by the law: one, of paramount im­ portance, is the rite of the bridegroom, and the other, of secondary sig­ nificance, the precedence of the pastor of the bridegroom over other pastors. When for any reason it is not possible to satisfy the fast re­ quirement and have the marriage celebrated in the bridegrooms rite, at least the second requirement must be satisfied, i.e., to have it before the pastor of the bridegroom. The idea that the bride leaves completely the orbit of her own family, people, nation, rite, etc., in order to adhere without any reservation to the family of her husband and to its various affiliations, is much more important in the East than it is in the West, which is the reason for the rule that a marriage is to be entered into in the rite of the bridegroom or at least before his pastor. Example: Nicholas, a Romanian Catholic, is a subject of the Latin rite pastor of A. since there is no Romanian pastor in the diocese. Nicholas intends to marry Ann, a Latin rite Catholic of B. The Latin rite pastor of A. is competent for this marriage. 4. Another consequence resulting from the joining of the two re­ quirements, rite and pastor of the groom, and the priority assigned to the former, is die obligation on the part of his pastor to permit the blessing of a marriage by a priest of the bridegroom’s rite who is not his pastor. Example: Basil, a Melkite Catholic, is a subject of the local Latin rite pastor of A., no parish of his rite existing in the diocese. He intends to marry Rose, a Latin rite Catholic, of the same parish. Basil wishes to have the marriage blessed by a Melkite priest, whom he is ready to bring to A. at his expense. The Latin rite pastor of A. is obliged to consent to it, and to grant the necessary delegation to that priest.

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This was also affirmed in a private reply of the S. Congregation for the Oriental Church (Bouscaren, C. L. Digest, III, p.452; also The Jurist, 1952, 475-476): “Titius, an Oriental dissident, wishes to marry Anna, a Latin Cath­ olic; and he earnestly asks that the marriage be celebrated in an Oriental church, either dissident or Catholic; he refuses to appear before the Latin pastor of the woman. The questions are: 1. Has the Latin pastor the right to celebrate this marriage, so that the Oriental Catholic pastor ought to obtain permission of the Latin pastor if he wishes licitly to assist at the marriage? 2. Does the Oriental pastor in such a case have jurisdiction by law because of the status of the man, who is an Oriental but a dissident; or rather is jurisdiction and permission to be granted by the Latin Ordinary to the said Oriental pastor? Reply: The pastor of the Latin rite should grant to a priest of the Oriental rite the faculty to assist at the marriage in question in a Latin church or in a place under his jurisdiction. This faculty is necessary for validity and for licitness.” If the Holy See wishes to accommodate a dissident, then even more courtesy should be extended to a Catholic Oriental. 5. Because of the double requirement, rite and pastor of the bride­ groom, it would be unlawful for the pastor who belongs to the rite of the groom to grant permission to a pastor or priest of another rite to as­ sist at the marriage. Example: James, a Ruthenian Catholic, intends to marry Rose, a Latin rite Catholic. They desire to have the celebration performed by Rose’s pastor although James’ pastor is residing in the same place. The latter is not entitled to permit Rose’s pastor to assist at the marriage either in a Latin rite or a Ruthenian church. 6. The rule of c.88 # 3 applies to every case. No possibility exists to reverse it on account of contrary particular custom or just reason: (1) Particular law, which would permit the reverse situation, is ex­ cluded because it is purposely omitted by the legislator, while in respect to marriages of Catholics of the same rite it is expressly mentioned. That the omission means exclusion follows from the concluding words at the end of Crebrae Allatae, where it is said that “any statute, whether general or particular or special, even issued by synods which received approbation in special form, any prescription and custom hitherto in force, whether general or particular, is deprived of its legal force, so that the discipline of the Sacrament of Matrimony shall be ruled only by the mentioned canons, and particular law contrary to them shall have no more force, except when, and as far as, it is con­ ceded by them? This was confirmed by the above quoted interpretation of the Orien­ tal Code Commission of May 3, 1953, expressly declaring that existing particular law contrary to c.88 # 3 is to be considered abolished. (2) Even a just reason does not permit an exception from the above rule. This follows from the intentional omission of such a clause in this part of # 3, and from general considerations, such as: that the legal order would be much more endangered, and die good relations among 169

the different rites of the Church would be exposed to continuous dis­ turbances and misunderstandings, if such a subjective criterion should be admitted. No exception is therefore permitted from the rule that the marriage of two Catholics of different rites is to be assisted in the rite and by the pastor of the bridegroom. 7. Since attention is to be paid not only to the rite of the parties, but also to who is the pastor of the bridegroom, the above prescription is to be applied also in a case where both parties, though of different rites, are under the jurisdiction of Latin rite pastors. Example: Joseph, a Maronite under the jurisdiction of the Latin rite pastor of A., and Catherine, a Melkite under the jurisdiction of the Latin rite pastor of B., have to celebrate their marriage before the pastor of A. 8. No dispensation is necessary, however, when the wedding is to be transferred from one competent pastor to another pastor of the same rite, otherwise incompetent. Example: Adam, a Ruthenian Catholic, intends to marry Eve, a Melkite Catholic. Since they wish to have the wedding in Eve’s place instead of in Adam’s, the latter’s pastor grants permission to the Ruthen­ ian Byzantine rite pastor in B. 9. No Apostolic dispensation is required if the granting of a de­ legation or permission to a pastor of a rite different from that of the bridegroom is a necessity. Example: Joseph, a Maronite Catholic, wishes to marry Sarah, an unbaptized person, before his Maronite pastor in A. The latter secures from the ordinary the necessary dispensation from disparity of worship. Since he is obliged to be absent on the day appointed for the marriage, he delegates the local Latin rite pastor. The substitution of the Latin rite pastor was called lawful and valid by the S. Congregation for the Oriental Church in a private reply (The Jurist, 1953, 124). (b) DISPENSATION 1. Necessity of Dispensation Dispensation from this law is reserved to the Holy See, because, ac­ cording to general principles of law, local ordinaries enjoy the power of dispensing from laws enacted by the Supreme Authority of the Church only if and as far as it was accorded to them. Cardinal Coussa, one of the codifiers, affirms this axiom: “.. .matrimonia Catholicorum mixti Ritus in Ritu sponsae et coram eiusdem parocho, nonnisi de licentia Sedis Apos· tolicae (cum res sit contra expressum canonis praescriptum) celebrari possunt” (De Matrimonio, p.204). From the necessity of the intervention of the Apostolic See in such cases it follows that: 1. ordinaries and pastors are not empowered to grant such per­ mission even if both parties are under the jurisdiction of the same ordinary; 2. ordinaries and pastors cannot agree between themselves con­ trary to the law. This holds true not only in respect to general agree­ ments which perhaps the hierarchy of different rites would enter into, but also to agreements in particular cases;

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3. the mere wishes of the parties themselves cannot invalidate this Apostolic law. What relationship does c.1097 # 2 CIC have to c.88 #3? Since c.1097 # 2 ordered that marriages of mixed rites should be celebrated before the mans pastor “except the case where particular law states otherwise”, it was questioned whether this still remains in force after CrAll. The Oriental Code Commission issued an interpretation on May 3, 1953 (AAS, 1953, 313), denying it, which means that particular law, written or custom, contrary to c.88 # 3, is abolished, and all mixed rite marriages are to be performed in the bridegroom’s rite and by his lawful pastor. 2. Reasons Against Dispensations in this Matter Dispensations granted without a correspondingly grave cause are detrimental to lawful order. The strictness of the Holy See in a legis­ lative act of so recent a date, as is CrAll, implies that important reasons moved the legislator in decreeing the principle of c.88 # 3, in respect to mixed rite marriages. Contemptuous treatment of the rule of c.88 # 3 is a serious handicap to the apostolate of the Church in seeking the reunion of Oriental Christians. The mere desire of the parties to have their marriage per­ formed in another church, if not supported by weighty reasons, ought not be taken into consideration. The wish of the faithful cannot change canonical legislation. Canon law does not mention in any place the possibility that priests, bishops, or the faithful can choose to obey the laws according to their will. If dispensations are permitted, they ar< supposed to be granted only after the existence of just reasons has beeil established. Another reason why an application for a dispensation should not be encouraged are the difficulties which follow later on. When children are bom, parents usually demand to have them baptized by the pastor who married them, although he is not of the father’s rite; this not even die Apostolic Delegate can permit. 3. Means of Avoiding Dispensations The reason a couple of different rites may wish to have their mar­ riage celebrated in the church of the bride, could be: 1. no pastor of the bridegroom’s rite is available, that is, cannot be approached, except with a correspondingly too great inconvenience. No dispensation is required in such a case because the local Latin rite pastor becomes the bridegroom’s pastor in virtue of law. This latter is true of all Orientals in the United States and Canada, and probably also of the Ukrainians (Ruthenians). 2. The bridegroom’s pastor could be approached but it is more con­ venient to have the marriage performed in the bride’s church. In such a case the competent pastor should be invited to perform the marriage in the bride’s church. Only if he refuses, does a sufficient reason exist to apply for a dispensation. 3. No true inconvenience exists, but the parties desire for senti­ mental reasons to be married in the bride’s church, because they prefer the bride’s rite. This is the case most often encountered in practice. No dispensation should be petitioned for such instances, but the parties

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should be directed either to obey the law, or if they are permanently set against the husband’s rite, to consider whether a change of rite would not be more appropriate. 4. Author of Dispensation The usual author of dispensations from general laws concerning Orientals is the S. Congregation for the Oriental Church. In regard to the matter in question, the S. Congregation has granted some general faculties. In European countries the dispensation is reserved to the S. Congregation. In the United States, the Apostolic Delegate in Washing­ ton, D. C., can grant dispensations. In Canada such dispensations may be accorded by the Apostolic Delegate in Ottawa, and also some local ordinaries received in the past power to concede a limited number of dispensations. The application for the dispensation is to be submitted by the parties interested, not by the parish priest where they wish to have die marriage performed. If the Apostolic Delegate or the ordinary do not request it, they may forward the petition directly to the Apostolic Delegation, with­ out seeking the mediation of their chancery. What does accomplish the dispensation granted by the Apostolic Delegate? This question is justified for this reason: if a pastor requested and received such an indult and the parties are not his subjects, does the dispensation confer upon him the faculty of assistance? Example: Constantine, a Ukrainian Byzantine rite Catholic, wishes to marry Cecilia, an unbaptized Protestant, before the Latin rite pastor in A., where there is also an Ukrainian Catholic pastor. Having received a dispensation from the Apostolic Delegate to assist at the marriage, does the Latin rite pastor acquire thereby also the faculty of assistance. Since Constantine was a subject of another jurisdiction and Cecilia was not subject to the jurisdiction of the Church, he did not possess it before the dispensation. Our answer was in the affirmative, inasmuch as the principle en­ unciated in c.200 CIC is to be applied, that whoever receives power by delegation shall have all that additional power which is necessary in the execution of the primary faculty. A dispensation from c.88 # 3 would be of little use to the pastor if he would still need the faculty of assist­ ance. The same question was put before the Apostolic Delegate for the United States, whose private reply was the following: “The permission given to have the marriage in the Latin rite does not also include delegation for the priest who is to assist. The priest who is to assist at the marriage at the Latin rite Church must enjoy jurisdiction to assist at marriages in that Church, as for example, the pastor, the as­ sistant, or one delegated ad hoc by either of them. No special delegation must be sought from the Oriental Ordinary.” (Michael Trivisonno, Chancery Matters Involving Different Rites, The Jurist, 1961, 266). The dispensation confers thereby the faculty of assistance only to those priests who enjoy it in virtue of some other title, and only within the limits established by that title. Because a Latin rite pastor has no title of jurisdiction in the case of a marriage of an exempt Oriental rite Catholic and a non-baptized person, he would not receive delegation in virtue of the Apostolic Delegate’s dispensation. 172

THE EXTRAORDINARY MARRIAGE FORM Canon 89. If the pastor or Hierarch or a priest who received according to can.86, 87 the faculty to assist at a marriage cannot be had or be approached without great inconvenience: 1. in danger of death, marriage contracted only in the presence of two witnesses is valid and lawful, and also apart from danger of death, if it is prudently foreseen that this state of affairs will last for a month; 2. in either case, if there is within reach any other Catholic priest who could be present, he must be called and assist at the mar* riage together with the witnesses, without prejudice to the validity of the marriage in the presence of the witnesses only.

1. GENERAL CONSIDERATIONS The Church can limit the freedom of the faithful only as far as it is necessary, reasonable and just. To require that marriage be contracted with the assistance of a qualified priest in every case, even if no such priest is available to the faithful, would not be reasonable and just. The Church permits therefore the faithful to contract marriages in such cir­ cumstances without the assistance of a qualified or authorized priest, in the presence of only two witnesses. Can.89 shows no major change in comparison with its counterpart in the CIC, c.1098. There is one addition to be noted: n.2 demands that a “Catholic” priest, though not possessing the power of assistance at mar­ riage, be called to bless the marriage entered into in such extraordinary circumstances. The prevailing opinion has by this addition found its ex­ pression, that the summoning of a non-Catholic priest must be excluded since it would constitute communication in sacris with a heretic or schis­ matic. There is of course no analogy with the case of confession in danger of death. The condition mentioned in c.89 exists not only when no priest at all is available, but also if priests who would be empowered to assist at the marriage, though actually present and available, cannot assist for other reasons, the chief being prohibition and penal sanction by state laws. These conditions exist especially in various Communist countries. 2. SOVIET MARRIAGES Not rarely pastors have to form an opinion on marriages contracted in the Soviet Union. Because of the persecution to which the Catholic Church has been exposed for so many years, there are practically few or no Catholic priests available who are still exercising their ministry in most parts of the Soviet Union, and the possibility of applying the rules of the extraordinary marriage form is to be taken into consideration. The extraordinary marriage form (c.89 CrAll = c.1098 CIC) requires the presense of at least two witnesses. The normal form of entering the obligatory civil marriage in the Soviet Union consists in the act of reg­ istration, which is the recording of the personal data of the parties and their signatures in the presence of the civil registration official, as a rule, one person only. Whether the requirements of the extraordinary mar­ 173

riage form are satisfied by the act of registration is doubtful for two reasons: 1. Usually only one witness is present, namely the recording of­ ficial. 2. No direct exchange of consent takes place, and whether mere re­ gistration can be considered an implicit exchange is at least doubtful. Practical cases become even more complicated by the fact that in certain regions, newly occupied by the Soviet Union, as in Western Ukraine (Galicia) between 1939 and 1941, Catholics were still accustomed to have the civil registration followed by a church wedding. If therefore a person claims to have entered into a marriage only before the govern­ mental official, in circumstances where the availability of a priest was probable, he shall supply an explanation as to his motives for avoiding a church wedding. It is impossible to produce from the Soviet Union and other Com­ munist countries evidence that would satisfy the requirements of strict procedural rules. Whenever it is the case of a convalidation of marriage, it will be necessary to satisfy the demands of law by granting full credi­ bility to whatever the petitioner himself states under oath. Since the usual benefit he and his wife derive from an ecclesiastical adjustment of their marriage situation is a spiritual, religious one, they will have to be trusted to have spoken the truth. This is the attitude also of the Ro­ man authorities, as exemplified by a case published in The Jurist (1961, 116-117): "S. Congregation for the Oriental Church On November 25,1959, we presented the case of Nicholas K. to the Holy Office. This man was baptized in the Russian Orthodox Church in Russia shortly after his birth on December 5, 1901. In 1921 he was drafted into the Russian army and ceased all religious practice. In 1926 he joined the Communist party. He was an officer in the Russian army. During the years between 1924 and 1938 he twice went to the mar­ riage registry to fulfill the requirements of marriage according to the law of the Soviet state. He really did not intend marriage, but as an officer he was not permitted merely to cohabit. Both women had been pre­ viously married. In 1941 he defected from Communism and came to this country. He lived in Bay City, Michigan, where he joined the Catholic Church. His case was presented to the Chancery in Saginaw, but it was felt that the lack of testimony and of documents made it impossible to determine the case. No records of either marriage registration are available. A lengthy sworn statement by the petitioner was forwarded to the Holy Office along with character testimonials of three priests, who knew him to be honest and truthful and faithfully practicing his Catholic religion, and three lay persons, who knew him to be a man of integrity. On May 28,1960, the Archbishop was informed by the Sacred Oriental C ongr e gation that this Congregation, acting under a mandate from the Holy Office, had given the following reply: “Constare de nullitate matrimonii in casu ex capite defectus con­ sensus.” Archdiocese of St. PauF 174

PERSONS SUBJECT TO THE MARRIAGE FORM Canon 90.

# 1. Bound to observe the above prescribed form

are: 1. all persons baptized in the Catholic Church and converts to the Church from heresy and schism, though the former as well as the latter afterwards have fallen away, when contracting marriages among themselves;

2. the same who are mentioned in n.l, when they contract mar­ riage with non-Catholics, either baptized or non-baptized, even after they have obtained a dispensation from mixed religion or from dis­ parity of worship.

# 2. Save for the rules in # 1, n.l, baptized non-Catholics are nowhere bound to observe the Catholic form of marriage when they contract marriage between themselves as well as with non-baptized non-Catholics.

1. CONVERSION AND MARRIAGE FORM

Only Catholics are obliged to observe the ecclesiastical marriage form under threat of invalidity of a marriage attemped outside the Church. A person can become a Catholic either be receiving baptism in the Catholic Church or, if he was baptized outside the Church, by con­ version to the Church. Conversion is a juridical act of explicit or implicit declaration of joining the Church. It will be necessary in practice to prove that such an act had actually taken place. We have to distinguish the case of adults from that of children. As adults are considered all those who have reached that intellectual maturity which is necessary in deciding such a step, without consideration of the actual age. Children, i.e., those who have not attained such intellectual maturity, baptized outside the Church, become converts to the Church automatically at the moment their parents convert. Should only one parent join the Church, it will be more difficult to establish later whether the child joined the Catholic parent or re­ mained outside the Church with the non-Catholic parent. However, if baptism or confirmation alone, or baptism and confirmation together, have been administered, even only conditionally, it is evident that conversion had taken place. The same is to be presumed, if it cannot be proved from records that a child had joined the parent in his conversion, if he later acted as a Catholic, received Catholic religious instruction, etc. Adults, as a rule, join the Church by profession of faith. Such an act is to be approved, explicitly or implicitly, by the local ordinary and to be recorded in church registers, so that the necessary proof usually will easily be available. Not rarely, however, adults join the Church via facti by receiving sacraments in the Catholic Church, i.e., in consequence of conclusive acts which by their nature have the same meaning, that is, acceptance of the Faith and submission to ecclesiastical authority. We do not consider attendance at church services, even for a long time, without reception of sacraments, as a conclusive act capable of 175

proving one’s decision to join the Church, because there is no true con­ viction and acceptance of faith if the reception of the annual communion is rejected. W. L. Boudreaux (p.80) is satisfied with “a minimum of Catholic training from infancy even though they received no sacrament after bap­ tism, provided that there was a total lack of heretical training.” We can­ not see how a non-Catholic who disobeyed the Church in the important matter of receiving - at least once - the sacrament of penance and com­ munion can be called a Catholic in the absence of an explicit profession of Faith. Practical implications of such distinction result from the - now abrog­ ated - second comma of # 2 of c.1099 CIC, in respect of the “ab acatholicis nati”. We recommend, however, considerable latitude in accepting proofs and statements from converts who assert to have received at least once a sacrament in the Catholic but have no proof for it. Should they then be able to submit evidence that they received Catholic religious in­ struction, this could be accepted as corroborating evidence for their al­ legation of having received sacraments. Even if they cannot produce any proof for such an allegation, ample credibility should be accorded to them, since their usual motive in seeking a convalidation of a marriage is of a spiritual, religious nature. As to which rite such informal converts have acquired, it can be said that children of apostate Catholics may join a rite of their own explicit choice at the moment of entering the Church, provided they were bap­ tized outside the Church and have reached the necessary intellectual maturity. If the parents return to the Church at the same time, the child­ ren follow then automatically in the parents’ rite. However, if they have reached legal puberty, they may choose a rite different from that of the parents. We draw such a conclusion from c.10 Cleri Sanctitati: “If the father lawfully transfers to another rite, or, in a mixed marrige, the Catholic mother, the children, who have not yet reached the age of puberty are by law itself transferred to the same rite.” Legal puberty is reached according to c.17 # 2 Cleri Sanctitati by males when they have completed their fourteenth, by females when they have completed their twelfth year of age. Instances of informal conversions are very common. Due to the vagrant habits of many an immigrant during the first years of their so­ journ on the American continent, there are numerous cases where per­ sons have joined the Church by an implicit conversion, i.e., by reception of sacraments without explicit profession of faith, or at least claim to have done so in the past. It is important to find out the real facts, be­ cause on the truth depends whether a person was obliged to the marriage form, and consequently whether his former marriage was valid or not, from which in turn depends whether a new Catholic marriage can be permitted or not. It is impossible to make rules which could be applied in every case for discovering and establishing facts. Persons interested in a favorable solution, when from it depends whether the Catholic party will be al­ lowed to marry them, are liable to commit even perjury to achieve their goal. Ecclesiastical authorities have to be mindful of c.3 CrAll (c.1014

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CIC) which establishes as supreme maxim that a sacramental marriage, that is, a marriage of two baptized persons, is always considered valid unless and until it is fully proven invalid. However, when it is the case of a couple who desire to convalidate their invalidly attempted marriage, and to have the first marriage of one spouse declared in­ valid on the ground that he was as a Catholic, or as an informal convert to the Catholic Church, obliged to observe the ecclesiastical marriage form, will deserve more credibility, since their motives are usually purely spiritual and religious. The following practical examples will provide some guidance in re­ solving problems: 1. Helen, bom of dissident Romanian parents, was baptized-confirmed in their church, but was sent to the local Latin rite parochial school, where she made her first Holy Communion, which act was duly recorded in the church registers. She married later outside the Church, divorced, and wishes now to marry a Catholic. Helen s receiving a sacrament in a Catholic Church can be con­ sidered as a proof that she aggregated herself to the Church as an in­ formal convert. Since it was a church of the Latin rite, she became sub­ ject to the legislation of the CIC, enabling the ecclesiastical authority to declare her first marriage null, and permit her a new, Catholic marriage. 2. Gregory, baptized by a non-Catholic priest, divorced his wife, whom he had married before a non-Catholic minister, and intends now to marry a Catholic. He and his parents, who at the time of his baptism had been fallen-away Catholics, contended that he had received sacra­ ments in a Catholic Church but later had abandoned the practice of the Faith. They produced as sole proof a document signed by the pastor of that church which said: “This is to certify that Gregory received first Holy Communion in this church in 1Q38.” This document, provided it spoke the truth, would have rendered him undoubtedly a Catholic, as far as the marriage form is concerned, obliged to marry before an au­ thorized priest, and consequently would have made him capable of en­ tering a new, Catholic marriage. The chancery, being suspicious, had the pastor questioned, who ad­ mitted having issued the statement solely on the testimony of Gregory s relatives for the alleged purpose of entering a first, Catholic marriage. This testimony destroyed the value of the document, and Gregorys case was returned to the files. 3. John was baptized by a non-Catholic minister of the denomi­ nation to which his parents belonged. The parents later joined the Cath­ olic Church with their children, but died while John was still an infant. Since their baptism was certainly valid, no conditional baptism had been administered at their conversion. John was brought up by his non-Cath­ olic relatives, never receiving a Catholic education. He married a non­ Catholic woman, separated from her, and intends to marry a Catholic. Was he bound to the Catholic marriage form, and, consequently, could a second marriage be permitted to him? He was bound to the form as a convert in virtue of the decision of his Catholic parents and he can be allowed to contract a Catholic mar­ riage.

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4. Samuel, a three-year old child of Jewish extraction, whose par­ ents had perished in World War II, was hidden by a Catholic family from persecuting racists, and was baptized by a Catholic priest. After two years he was claimed by his Jewish relatives who reared him according to their faith. Will he be bound to observe the ecclesiastical marriage form? Yes, because his foster parents were entitled to act as quasi-parents, his natural parents being dead, and his baptism was thus received in the Church in die meaning of c.90. 5. Emanuel and Anna, non-Catholic Orientals, because there is no dissident priest of their rite nearby, bring their child for baptism to a Catholic Oriental priest of the same rite, who is not aware of the parents being non-Catholics. Their intention is to have the child receive a valid baptism, but they intend him to be reared as a non-Catholic. The child will nevertheless be considered as having received baptism in the Church in the meaning of c.90, because the intention of the parents to have him baptized in the Catholic Church prevails over the second intention to have him reared outside the Church. 6. Basil was bom of parents who were originally Byzantine rite Catholics but later had joined a local schismatic church. He and his elder brothers and sisters were baptized outside the Church. When he was three years old his parents moved to another city, where they joined the Catholic church of their rite, and where the younger children were bap­ tized. The mother received also a Catholic funeral at her death. Basil was not brought up in any religion, never received any sacra­ ments, and married Mabel, a baptized Protestant, before a Protestant minister. Having obtained a divorce from her, he married Catherine, a Latin rite Catholic, before a justice of the peace. They petition now to be permitted to convalidate this marriage. Basil, being a validly baptized infant, became formally a Catholic by the return of his parents to the practice of their Faith, and thereby also subject to the obligatory ecclesiastical marriage form of Ne Temere. There were considerable difficulties in establishing the circumstances of his parents’ return to the Church, but he was finally allowed to convali­ date his marriage with Catherine.

2.

CATHOLIC OR NON-CATHOLIC ORIENTALS?

Since the only practical distinction between a certain Catholic and a dissident Oriental group, at least in the eyes of a layman, is obedience to the Roman Pontiff, ceremonies of divine services being identical, some persons may not be sure as to which group they should belong, or to which group they trace their extraction. Because of this seeming identity and because of difficulties of language, Catholic and non-Catholic im­ migrants to the United States and Canada were easily induced by fellow countrymen to join a church of the other group in a certain place, es­ pecially if no church of their own religious affiliation existed there. This indifference to the problem of the right faith in the past on the part of some Catholic Orientals on the American continent is the source of much confusion, which in practice becomes more complicated on ac­ count of untruthful statements. Example: Anna was baptized in the Latin rite Church. She married a Protestant before a non-Catholic minister. After divorcing him, she in­

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tends to marry a Catholic. In her petition for a declaration of nullity of her first marriage she states that her father was a Catholic Romanian, her mother a Catholic Ruthenian. She would therefore follow her fathers rite, and be subject to the legislation concerning the marriage form obli­ gatory in his rite. Romanians were not bound in the United States to any specific marriage form prior to May 2, 1949. Anna’s marriage to a Protes­ tant, therefore, though entered outside the Church, would have been valid. The suspicious chancery official found in studying the case indica­ tions that her father was not a Catholic, but a dissident Romanian. Fur­ ther inquiries discovered that he was bom a dissident Romanian and never joined the Church. Anna had felt she would receive better consider­ ation from ecclesiastical authorities if she made him a Catholic. More­ over, the marriage of her parents was proved invalid because contracted outside the Church, which made Anna an illegitimate child, thus fol­ lowing in the rite of her mother, who in turn was obliged to the form of Ne Temere. Anna’s marriage was therefore declared null because of de­ fect of form, and a new, Catholic marriage was permitted. In order to aid a son or daughter in obtaining a decree of nullity parents may claim that they had him baptized in a non-Catholic church either because no Catholic church of their rite was available, or because they mistook the schismatic church for a Catholic one. As a general rule, if baptism was received from a non-Catholic minister, this is presumed to have been done intentionally. However, this presumption may be re­ moved by evidence which supports the claim of mistake on the part of the parents. Example: Rose wished to obtain the annulment of her first Protes­ tant marriage. Her parents were alleged to have mistakenly considered the Church where Rose was baptized a Catholic one. Since, however, all their children, although baptized in the Catholic Church, were educated in ¿he schism, and all had married outside the Church, it was evident that the alleged good faith of the parents had never existed. After having fallen away from the Church with their children, they had joined the schismatic congregation, and when Rose was bom had her baptized there. Rose, not being obliged to the Catholic marriage form as a non­ Catholic, cannot receive a declaration of nullity of her first marriage.

Due to many reasons, especially the extreme lack of priests of their rite, and financially strong schismatic propaganda, Catholic Orientals, mainly of the Ukrainian-Ruthenian group, were exposed to anti-Catholic influences. Not only individuals but entire congregations left the Church, mostly without the necessary understanding of die importance of such a step. Many of them returned either as individuals or as members of a congregation which came back as a whole. The ensuing confusion is the reason for juridically complicated cases, as we see in some examples: 1. When a child was bom to Roman and Eudoxia, newly arrived immigrants, they offered him for baptism to a nearby church of their rite, unaware that it was a non-Catholic, schismatic priest who adminis­ tered baptism. The child later attempted a marriage outside the Church, received a divorce decree and wished to enter into a new, Catholic mar­ riage. Since it was proven that Roman and Eudoxia had always profes­

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sed themselves to be Catholics in the true meaning, though they neglect­ ed to give a religious instruction to their children, and had not joined the schismatic movement, the marriage was declared invalid on account of the lack of form, since the intention of the parents to have the child baptized as Catholic was decisive, and made him subject to the obli­ gatory marriage form of Ne Temere. 2. A village in Europe was cut off every spring by the overflooded river from any communication with the rest of the world for several weeks. When this situation lasted too long, Catholic parents, fearing their infants might die without baptism, unable to reach their pastor, offered them to the local non-Catholic Oriental priest for baptism, never intend­ ing to desert the Church. Such a child came then as an infant to Canada where his parents joined a schismatic church. Later he married before a justice of the peace, divorced his wife, and wishes now to enter a new, Catholic marriage. Since his baptism through the intention of his parents made him a Catholic, he was obliged to die Catholic marriage form, which made his first marriage invalid. 3. AB ACATHOLICIS NATI

I. CANON 1099 # 2 Canon 1099 # 2 decreed an exemption from the ecclesiastical mar­ riage form established by the CIC for those who 1. were bom of non-Catholic parents, or at least of one non-Catholic parent, be it even an apostate one at the time of baptism; 2. were baptized in the Catholic Church, but 3. were reared from infancy outside the Church, when they were contracting marriage outside the Church with non-Catholics. All the three conditions had to be verified simultaneously. Example: Joseph’s father was a Protestant. According to the wishes of his mother, he was baptized in a Catholic Church. After the death of his mother, when he was three years of age, he was brought up by his Protestant step-mother as Protestant. He married a Protestant before a non-Catholic minister. Having obtained a divorce from her, he wishes to marry a Catholic. This would be impossible because, in accordance with the above defined exception, he was exempt from the Catholic marriage form. After the CIC was put into practice it appeared that such an ex­ ception was not at all favorable to these persons, because it rendered their marriage valid and prevented them from entering a new, Catholic marriage. Besides this aspect, there was also the difficulty of proving that somebody had never knowlingly belonged to the Church, because it made fraudulent statements possible. This exemption was therefore abolished by a motu proprio of August 1, 1948 (ÀAS, 1948, 305-306), which went into force January 1,1949. Marriages of such persons con­ tracted after this day ouside the Church will be considered invalid, and the general rule of obligatory marriage form affects every persons what­ soever baptized in the Catholic Church. CrAll c.90 did not include this second part or comma of c.1099 # 2. 180

II. NE TEMERE

The problem of the Ab Acatholicis Nati concerned only marriages in which at least one party was a Latin rite Catholic. In regard to Orientals the question is different. The problem existed among them solely for those who were subject to the marriage form of Ne Temere, a motu proprio originally promulgated for the Latin rite Church as a precursor to the CIC, in which it was later incorporated with slight changes. When this decree was issued in 1907, the text corresponding to c.1099 # 2 CIC said that every person baptized in the Church, or bap­ tized outside the Church but later converted to the Church, was obliged to the observance of the ecclesiastical marriage form under pain of nul­ lity. Only persons who never belonged to the Church were free from any marriage form. The above mentioned exception concerning those who were ab acatholicis nati was not found in Ne Temere. The cancellation, therefore, of the second comma of # 2 of c. 1099 CIC by the motu pro­ prio of August 1, 1948, was thus only a re-establishment of the rule and text found in Ne Temere. Since, however, there existed among the codifiers of Ne Temere a group who was of the opinion that those catholics who were of non­ Catholic parentage and never had knowlingly belonged to the Church should not be subject to the Catholic marriage form, the Holy Office issued a decree on March 31, 1911 (AAS, 1911, 163), directing that such cases be submitted for its adjudication, intimating that those persons would be treated as other non-Catholics. Since within the jurisdiction of the Byzantine rite Ukrainian (Ruthenian) dioceses of the United State! and Canada Ne Temere was in force before May 2, 1949, the abov । mentioned decree of the Holy Office is still to be observed in regard to such marriages of Ukrainians (Ruthenians) contracted prior to May 2, 1949, though today there is no doubt that the decision of the Holy Office will be in favor of declaring marriages of such persons invalid because of lack of form. Example: Myron, the son of a Catholic father and a non-Catholic mother, was baptized by a Catholic priest. After the early death of his father, he received an entirely non-Catholic religious education. He married later before a non-Catholic minister, soon obtained a divorce, and now wishes to enter a new, Catholic marriage. 1. If he received baptism in an Oriental rite in which Ne Temere was in force at the time of his marriage, his case is to be presented to the Holy Office, which - as experience shows - will declare him bound to the ecclesiastical form, and his marriage outside the Church invalid, thus enabling him to enter a new, Catholic marriage. 2. If he received baptism in the Latin rite, and his marriage was . entered into before January 1, 1949, he will be considered a non-Catho­ lic, not bound to the marriage form of c.1099 # 2 CIC. His first mar­ riage will be valid and he will not be permitted to enter a new, Catho­ lic marriage. 3. If he was baptized in the Latin rite and his marriage outside the Church took place after January 1,1949, he will be considered bound to the form of the CIC, which will render it invalid, and give him the possibility of entering a new, Catholic marriage. 181

Should it be impossible to determine to which rite a person belonged, and consequently, whether he is subject to the second comma of c. 1099 # 2, or to Ne Temere, his case is also to be submitted to the Holy Office. Example: Basil was baptized according to the Latin rite, but his mother insisted that the legitimate father had been a Catholic of the Byzantine rite. Her claim, however, was for certain reasons of dubious value; the father could not be reached and she herself was a non-Catholic. The Holy Office resolved the case by declaring Basil’s first marriage in­ valid because of defect of the proper form. 4. MARRIAGES OF CATHOLIC ORIENTALS CONTRACTED OUTSIDE THE CHURCH BEFORE MAY 2, 1949

(1) PRELIMINARY CONSIDERATIONS

It will be useful to remember that the Oriental rites had for a long time developed liturgical forms of marriage but that these were not necessarily accepted as obligatory institutions, or, if perhaps admitted as obligatory in a certain group, not always with the sanction of nullity of marriages contracted without them. Several degrees are possible in the evolvement of an ecclesiastical marriage form: 1. Status when there is no religious liturgical marriage form in existence, at least not one with legal significance. This is the case of baptized non-Catholics, at least in the eyes of the Catholic Church, who are not bound to any specific form in contracting marriage, as long as the exchange of consent is accomplished according to the rudimentary de­ mands of natural law. 2. Facultative liturgical form, according to which it is left up to the faithful whether they will contract marriage according to this re­ ligious or according to a secular form. In this category belongs also the extraordinary ecclesiastical marriage form of c.89. 3. The liturgical marriage form is available to all, but it is obligatory only for the prominent persons of the community, e.g., the nobility, with­ out stipulating any definite sanction for marriages contracted without it. 4. The ecclesiastical marriage form is strictly obligatory for every member of the faithful, to neglect it is a mortal sin, but marriages con­ tracted without it are valid. 5. Marriages entered into by the faithful are invalid if not con­ tracted according to the obligatory ecclesiastical form. Extraordinary circumstances in which compliance with the law of the Church is im­ possible, as, e.g., due to the absence of a qualified authorized witness (pastor), are naturally always excluded. This highest and most restrictive status is exemplified in the law of Ne Temere, the CIC and CrAll, now the only acknowledged form of con­ tracting marriage for all Catholics. For the time before CrAll it must be ascertained whether an abligatory ecclesiastical marriage form was in force in a certain group, at a specific period of time, separately for each Oriental group and subgroup. For the United States and Canada this was done by Joseph F. Marbach in his doctor’s thesis “Marriage Legis­ lation for the Catholics of the Oriental Rites in the United States and Canada” (The Catholic University of America Press, Washington, D.C., 1946). For other parts of die world other sources have to be consulted. 182

For some territories and for certain Oriental groups research into the existence of a marriage form will not lead to a satisfying result, as it is proved by the Ruthenian group, chiefly the Byzantine rite Ukrainians, in certain parts of Europe. In discussing the existence itself or the obligation of the marriage form for certain groups of Oriental Catholics or dissidents not rarely the distinctions sketched above are not made; confusion and obscur­ ation of the issues are the consequence. For years to come the pastor will have to deal with marriages of Catholic Orientals contracted outside the Church before CrAll went into legal force May 2, 1949. It is therefore important to know whether they were bound, as far as the validity is concerned, to the ecclesiastical mar­ riage form. The answer is different depending on the place where the marriage took place, as well as upon the rite, discipline or jurisdictional subdivision of a rite or discipline, to which the person in question belonged. (2)

MARRIAGES ENTERED INTO IN THE UNITED STATES AND CANADA

According to the studies of J. F. Marbach an obligatory marriage form could be established with certainty only for the Ruthenians (Ukrain­ ians) before May 2, 1949. They were subject to the form of Ne Temere in the United States by the decree Cum Episcopo (AAS, 1914, 463), and in Canada by the decree Fidelibus Ruthenis (AAS, 1913, 398). For all other Catholic Orientals J. F. Marbach draws the following conclusion (p.250): “9 . Though marriages without religious rites are abhorred by the Church in view of the sacred character of marriage, nevertheless, since there is doubt of law as to whether the marriages of non-Ruthenian Orientals, when contracted in the United States or in Canada among themselves or with non-Catholics, must for their validity receive the blessing of the priest or have the ceremony of coronation, the marriages of these persons when contracted in a civil ceremony or before a schis­ matic priest or a non-Catholic minister, cannot be declared invalid be­ cause of a defect of the proper form, as long as this doubt has not been resolved by the Holy See.” However, to the Ruthenians are to be added also the Armenians. The Synod of the Armenian Patriarchate held in 1911 in Rome stipulated, after having mentioned the custom observed since centuries of religious marriages: “quare coniugium sine praesentia sacerdotis initum nullum est et irritum. Unde novum exsurgit impedimentum clandestinitatis.” On judging therefore the validity of a marriage of Armenians attention is to be paid to these criteria: 1. The marriage must for validity be blessed by a priest. It is not required that he be the pastor. It seems that non-Catholic priests, provi­ ded they have been validly ordained, could validly assist at a marriage of a Catholic Armenian, who, naturally, commits a mortal sin by sub­ mitting to such a wedding, and in addition will be excommunicated. Decisions of the S.Congregation for the Propogation of the Faith in re­ solving marriage cases of Armenians affirm the principle that a marriage 183

assistance performed by a non-Catholic priest is valid, though unlawful (ci.A.Coussa, De Matrimonio, p.225). A marriage case falling in this category was presented by the Arch­ bishop of Boston, Mass., to the Holy Office, and received the following reply: “After careful study of the acts of the process for nullity of the mar­ riage of Mary G., baptized in the Armenian Rite, and Richard T., bap­ tized Protestant, the Holy Office in reply to the doubt ‘an constet de nullitate matrimonii in casu has decreed: “Affirmative: seu constat de nullitate matrimonii in casu ex defectu formae canonicae pro Armenis praescriptae.” (The Jurist, 1961, p.116). 2. No witnesses were mentioned in the Synod of 1911 as required for the validity of the assistance, although for lawfulness they are pres­ cribed. 3. The marriage form of the Synod of 1911 was territorially not limited, and obliged therefore also on the American continent. 4. Not all Armenians were affected by this marriage form. The form had no obligatory force for those Armenians who were outside the juris­ diction of the patriarchate, i.e., those from the Armenian Rite Archdiocese of Lwiw (Western Ukraine), and others from Eastern and Southern Europe, where two ordinariates were erected for them: one in Gherla (Romania) and another in Athens (Greece). 5. In respect to baptized non-Catholics, it is a general rule of dog­ matical significance that they are subject to all the laws of the Church, unless the legislator exempted them expressly from some, as it was done in c.1099 # 2 CIC. The Synod of the Armenian Patriarchate of 1911, in establishing an obligatory marriage form, did not exempt from it the dissident, non­ Catholic Armenians. A. Coussa (De Matrimonio, p.227) argues therefore that the dissidents could be considered included in the legislation, and thus bound to the marriage form. If two dissident Armenians should con­ tract marriage without assistance of a priest, their marriage could be regarded invalid. However, there is some doubt as to the minor premise, i.e., whether the Synod had the intention of including them. The fathers of the Synod were so strongly convinced of the obligatory force of the custom of centuries that they did not consider it necessary expressly to legislate for the dissidents. A.Coussa concludes therefore: “Cum certum not sit praefatum synodum, in re de qua agitur, Dissidentes armenos afficere, matrimonium ab iisdem, omisso sacerdotis interventu, contractum, certo nullum esse non constat” This is an appli­ cation of the principle “in duhio standum est pro valore matrimonii” (c.3 CrAU = c.1014 CIC). A decree of nullity of marriages invalid because of defect of form can be issued in administrative procedure, first introduced by the declara­ tion of the Interpretation Commission of October 16, 1919 (AAS 1919, 479), provided that the invalidity can be proved directly from documen­ tary evidence. The ordinary of that party who needs such an annulment is competent for the issuance of it, since he is called upon to certify the free status of a contracting party.

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It is true that an annulment granted on the North American conti­ nent by another ordinary to an Ukrainian (Ruthenian) would not be in­ valid,since no jurisdiction is involved, but a mere finding of facts. Latin rite chanceries should, nevertheless, abstain from issuing them for Ukrain­ ians (Ruthenians) because of the peculiar difficulties encountered in such marriage cases.

(3)

MARRIAGES CONTRACTED OUTSIDE THE UNITED STATES AND CANADA

It is extremely difficult, even impossible, to establish with accuracy the existence of an obligatory marriage form for each Oriental group in all possible territories before CrAll (cLA.Coussa, De Matrimonio, p.208235). The confusion becomes even greater if we are aware that within the limits of rites we have to make distinctions and subdistinctions among groups, ecclesiastical provinces and dioceses, as it is exemplified by the so-called Ruthenians. 1. RUTHENIANS (cf.the following article) 2. MARONITES They were obliged to the form introduced by the Synod of Lebanon (1736), which materially was that of Tametsi of the Council of Trent. The obligation extended to the territory of the patriarchate, and outside it under the following two conditions, to be verified simultaneously: (1) if the parties retained their domicile or quasi-domicile in the patri­ archate; (2) if the other party was not exempted from an obligatory mar­ riage form, because he would then communicate this exemption to the other. Maronite immigrants to the American continent were not bound to any obligatory marriage form prior to May 2, 1949, since they automa­ tically acquired at least a quasi-domicile at reaching the United States or Canada. 3. ARMENIAN PATRIARCHATE The faithful in the dioceses of the Armenian Patriarchate were since the Synod of 1911 bound to an ecclesiastical marriage form, which consisted in the obligatory presence of a priest, not necessarily the pastor. This form followed them also to the United States and Canada (cf.what is said above). 4. ARMENIANS OF TRANSYLVANIA (ROMANIA) Armenians from Romania and Galicia (Armenian Archdiocese of Lwiw) were bound to the obligatory marriage form of Tametsi, intro­ duced by tacit reception. 5. ITALO-ALBANIANS They were obliged to the Tridentine form to the same extent as the Maronites. 6. OTHER ORIENTAL RITE GROUPS For other rites or subdivisions of a rite it is certain that no obligatory ecclesiastical marriage form was introduced with the force to invalidate marriages contracted without its observance, or it is not possible to estab­ lish beyond any reasonable doubt the existence of an obligatory marriage form the neglect of which would be sanctioned by invalidity of the mar­ riage. Marriages entered into thus outside the Church are of doubtful

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validity, and must be accepted as valid according to the principle in dubio standum est pro valore matrimonii (c.3 CrAll = c.1014 CIC). These rites or groups are the Bulgarians, Chaldeans, Copts, Ethio­ pians, Greeks, Malabarians, Malankarians, Melkites, Romanians, Rus­ sians, Syrians.

(4) THE CLANDESTINE MARRIAGES OF UKRAINIANS AND OTHER RUTHENIANS CONTRACTED IN EUROPE PRIOR TO MAY 2, 1949 This group of Ruthenians includes certain groups of the Ukrainians, Slovaks, Magyars, Croats, and other Byzantine rite Slavs of the Subcarpathian region. They are part of the most numerous group of Catho­ lic Orientals. Three marriage forms were in existence among them:

I. THE TRIDENTINE FORM (TAMETSI) This form was introduced by the Synod of Zamost (1720), which received papal confirmation in forma specifica, thereby becoming a law of the Apostolic See herself. It concerned the territories which were at that time under the Polish-Lithuanian crown. The Tridentine form was also introduced by the other Ruthenians with the tacit approval of the Holy See. It was abolished for certain ter­ ritories by the extension of the form of Ne Temere from the Latin rite Church to them.

II. NE TEMERE FORM This form was extended by the Holy See to the various Byzantine rite Ruthenian (Ukrainian) dioceses at different times: 1. to the Ukrainian Ecclesiastical Province of Lwiw, comprising the Dioceses of Lwiw, Peremyshl and Stanislawiw, i.e., the Kingdom of Galicia and Volodymiria and the Duchy of Bucovina of the former Aus­ tro-Hungarian Monarchy, on May 5, 1911 (S.Congregation for the Propa­ gation of the Faith, Prot.29958). Since the other provinces of the Aus­ trian half of the Austro-Hungarian Monarchy were under the jurisdiction of the Byzantine rite Archbishop of Lwiw as ordinary of the Central Parish of St. Barbara in Vienna (Austria), they are all to be added to the territory in which Ruthenians were obliged to observe the form of Ne Temere. 2. to the Croatian Diocese of Krizhevtsi (Yugoslavia) on Decem­ ber 20, 1909 (Fonti: Codificazione Canonica Orientale, Fascicolo XI, no.186). 3. to the Dioceses of Munkachevo-Uzhorod (today in the Ukrain­ ian Socialistic Soviet Republic) and Preshov (today in Slovakia) on De­ cember 24, 1910 (Fonti: Codificazione Canonica Orientale, Fascicolo XI, no.187). 4. to South America on March 27, 1916 by the decree of the S.Con­ gregation for the Propagation of the Faith “Cum Sat Numerosiores”, Art.17 (AAS, 1916, 107). 5. to all Byzantine Catholics of Yugoslavia, i.e., also those in Bos­ nia-Hercegovina and Macedonia, who formally had not been parts of the Diocese of Krizhevtsi, on June 4, 1932, with legal force from Jan­

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uary 1,1933 (Sacred Congregation for the Oriental Church, Prot.No.366/ 32). Outside these regions and the United States and Canada there was no obligatory ecclesiastical marriage form prescribed for Ruthenians. However, cognizance must be taken of the possibility that the Triden­ tine form continued to exercise its force outside the mentioned regions in certain specific cases, in places and situations for which Ne Temere had made no provision. According to Tametsi a person was bound to that form in a certain territory as long as he (1) retained a domicile or quasi-domicile in the territory, and, simultaneously, (2) as long as he had not acquired at least a quasi-domicile in that place outside the territory. Example: John, a Byzantine rite Catholic from Lwiw, travels to Berlin (Germany) with his fiancee Catherine, also a Byzantine rite Catholic from Lwiw, to visit a trade exposition. They decide on the spur of die moment on getting married and execute their plan eight days later before a civil magistrate. If neither of them had acquired at least a quasi-domicile in Berlin, the marriage would be invalid, otherwise valid. However, it must be said that the numerous clandestine marriages of Ukrainians after World War II in Western Europe would have been valid in accordance with the Tridentine form, because they had acquired at least a quasi-domicile in Germany when they fled or were deported from their country. III. FORM OF THE LATIN C. I. C. Some Ruthenian dioceses requested from the Holy See to have the CIC extended to them, chiefly because of the lack of an Oriental collec tion of laws. Matters pertaining to rite were, of course, to be exceptec such an extension was granted to the Diocese of Munkachevo-Uzhorod ir 1921 and to die Diocese of Haydudorogh (Hungary) in 1925. Because the marriage forms of Ne Temere and CIC are nearly iden­ tical, no practical change was involved in this extension of the CIC. Clandestine Marriages After World War II some 50,000 Byzantine rite Catholics were ad­ mitted to the United States as immigrants under the First Displaced Persons Act. According to their national extraction they were mostly Ukrainians, sometimes Rusines, Russians, Hungarians, Slovaks, Croats, all of whom are subject to the local Byzantine rite bishops. In their respective European dioceses they were bound to observe the marriage form of Ne Temere, which, however, was not a personal law following them outside their dioceses. Most of these immigrants had lived before coming to this country in Germany, France, Belgium, Great Britain, for five to ten years, and there they had contracted marriages either with Catholics of their own rite or with non-Catholics, often before a state official and/or before a representative of a non-Catholic religious denomination. Such mar­ riages, though sinful and forbidden, are nevertheless to be considered valid outside the above listed dioceses, because it cannot be established that an obligatory form was prescribed for them in those countries, and the form which obliged them in their dioceses of origin did not extend over the territorial limits of these dioceses. 187

In entering such marriages, e.g., before a civil magistrate, these Byzantine rite Catholics were generally convinced that their marriages were invalid on account of the lack of a religious ceremony, because at home non-religious marriages were invalid and were unheard of. Most had the intention to undergo a religious rite at the first convenient op­ portunity. This absence of the blessing of the Church encouraged some of tliem more easier to break a marriage vow of this kind, with the hope that they would then be permitted to enter a “real” religious marriage with somebody else. However, such persons must realize to their great disappointment that their opinion concerning the validity of the marriage contract did not affect the validity of the latter. Can.76 CrAll repeats c.1085 CIC: “The knowledge or opinion of the nullity of marriage does not neces­ sarily exclude matrimonial consent.” Only if there was a lack of intent to enter into a true marriage will there be a possibility of annulment. Such absence of true consent did sometimes happen, as, e.g., if the marriage was arranged for the sole purpose to permit the bride im­ migration to a country as wife of a citizen. In any case, it will be practically very difficult to assemble all the required proofs to enable an ecclesiastical court to issue a sentence of annulment. In judging the validity of such marriages contracted by Ukrainian and Ruthenian displaced persons attention is to be paid to the following legal criteria: Persons: Catholics of the Byzantine rite from Western Ukraine, i.e., former Galicia, and Bucovina (part of Romania from 1918 to after World War Two), Hungary, Slovakia, Yugoslavia, contracting marriage with Catholics of the Byzantine rite from the same region, as well as with other Catholics who were no bound to an obligatory marriage form in these circumstances, and with baptized non-Catholics. Marriages contracted with a Catholic of the Latin rite before a non­ Catholic minister or before a civil magistrate were invalid according to c.1099 CIC. Marriages at which a priest of the Latin rite assisted were valid even though neither party was his subject, both being, e.g., Ukrainian Byzantine rite Catholics. Place: Countries outside the boundaries of Galicia, Bukovina, Slovakia, Hungary, Yugoslavia, the United States of America, South America, Canada and the Austrian Republic. Such countries were Germany, France, Belgium, Great Britain, Spain, etc. Time: Such marriages could have been contracted validly only up to May 2, 1949. Since that day die marriage form established by c.90 CrAll obliges everywhere. Marriage attempted or contracted by a Byzantine rite Ruthenian (Ukrainian) Catholic before a non-Catholic minister is punished with excommunication reserved to the local Hierarch. The majority of the Ukrainian refugees contracted such marriages before a civil magistrate, and have therefore not incurred thereby the excommunication. For those who were married by a Protestant minister or an Oriental dissident priest, the faculty for absolution from the censure is to be secured from the Byzantine rite Ukrainian bishop of their place of residence in the United States or Canada; Latin rite ordinaries would not have the power to absolve them. Such an absolution will be needed irrespective of

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whether they have separated from their spouses or not. Absolution from the censure is to be obtained even if they continue this union, which was contracted sinfully although validly, also without regard whether they will be the recipients of a subsequent blessing in a mar­ riage rite or not. Confessors cannot absolve in the internal forum from this censure since it follows a public crime, but have to remand the penitent to his pastor. This holds true even if the confessor is the pastor himself, because the absolution mut be a public act; he has to direct the penitent to approach him, as if on his own discretion, outside the con­ fessional. The faculty for absolution from the censure shall be requested and granted with the power of subdelegation, making thereby provision for the possibility that the delegated priest is prevented from executing it in person. Whenever the adjustment of a marriage of this kind should disclose unusual difficulties, the matter has to be submitted to the judgment of the local ordinary, even though no absolution from censure is involved. Must Such Marriages Be Convalidated? When Catholics contracted a marriage in the mentioned circum­ stances outside the Church, are they obliged to convalidate it and go through an ecclesiastical marriage rite? It is clear that they have committed a mortal sin by contracting marriage outside the Church. This sin they have to submit to the judgement of the Church in the confessional. In addition they might have incurred excommunication from which absolution in the external forum is to be received. As to the marriage itself, as long as the law regards it as valid (c.3 CrAll — c.1014 CIC) no obligation can be im­ posed to convalidate it, since it is not the case of a sacrament necessary for salvation. Moralists teach that it is sometimes permitted to repeat a sacrament if the doubt concerning its validity is reasonable. This is the case with the marriages under consideration, and such spouses can be made aware of this opportunity. Even if there were no doubts as to the validity of such marriages, the parties are doing well to procure themselves the special blessing of the marriage rite of coronation. In both cases, whether the marriage rite is subsequently requested as an insurance against a possible invalidity or in order to receive the liturgical marriage blessing, the entire marriage rite of the ritual can be applied, not excluding the request and the reception of the marriage consent as an act de praesenti. However, no new marriage license of the civil government is needed, provided the parties have produced a valid civil marriage certificate. It is advisable to enter this quasi-convalidation in the marriage register of the parish, and an appropriate recording in the rubric “annotation” should explain the situation, as, e.g.: “Mariage originally contracted May 27,1946, before the Standesamt (civil magistrate) in Darmstadt, Hesse, Germany.” Since it is not the case of a new marriage, no marriage banns are needed. The prohibition of assisting at marriages during certain times of the year would oblige only if the parties plan some boisterous cele­ bration.

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In the settlement of marriages under discussion only administrative decisions are required, without that jurisdiction is needed, with the exception of the absolution from the censure. It is therefore within the official sphere of any chancery to render such a judgment. For law­ fulness it will be required that the marriage in question or a new mar­ riage to be entered into come under the jurisdiction of that chancery to the jurisdiction of which the marriage is assigned by canon law. Be­ cause of the specific knowledge needed in the adjudication of such mar­ riage cases, it is wise to refer the matter to the more experienced Byz­ antine rite Ukrainian chanceries.

THE LITURGICAL RITE OF MARRIAGE Canon 91. Outside the case of necessity, the rites and cere* monies which are prescribed in liturgical books approved by the Church or recognized by legitimate customs shall be observed at the celebration of a marriage.

1. LITURGICAL FORMULARIES OF ORIENTAL RITES Eastern rites have preserved extensive and meaningful marriage ceremonies, the richness of which is especially remarkable when we compare them with the juridical simplicity and brevity of that of the Rituale Romanum. The ecclesiastical marriage rite in the Christian East was composed of two parts: the betrothal and the coronation. The first can be con­ sidered an ecclesiastical engagement, however, with the understanding that it was regarded as an incomplete marriage, an institution known also in the Western Church and called by Gratian matrimonium initiatum. At some time in the history of the Church such a betrothal started an indissolvable marriage, although it did not confer the right for its consummation, which was granted only through the subsequent rite of coronation. These two rites were later joined for practical reasons into one marriage rite. In some Eastern rites, as in the Byzantine rite, the division is still maintained in liturgical books, although the two parts are always celebrated together. This separation of the marriage rite into two parts will not seem strange if we remind ourselves of the solemn nuptial blessing of die Latin rite, which in liturgical books is divorced from the marriage rite proper, and which is facultative, depending on the wishes of the parties (c.1101 CIC). When members of the Russian imperial family married some foreign prince or princess, the rite of betrothal was separated from the rite of coronation, the first was cele­ brated in the country which the bride was about to leave, and the mar­ riage was then completed with the coronation at the residence of the bridegroom. Originally the expression of the consent was not an explicit act, but was included in the fact that the parties had come to the Church and had undergone the marriage rite. Peter Mohila, dissident Met­ ropolitan of Kiew (Ukraine), introduced, under the influence of the Rituale Romanum, in his liturgical text of the marriage ceremony the questions for exacting the marriage consent. Since the liturgical editions

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of Kiew were later accepted by all Slavs of the Byzantine rite, we find these questions and answers in all Byzantine rite Slavonic liturgical books, dissident and Catholic alike. Most Catholic Oriental groups have also introduced questions concerning the marriage consent, while the majority of the dissident Orientals have no explicit expression of consent. Under the influence of liturgical customs of the Latin rite in Poland, the Byzantine rite Catholics of Western Ukraine, Slovakia, Hungary and Yugoslavia have accepted into the marriage ceremony as a facultative part, going back likewise to Peter Mohila, a solemn oath to be taken by the parties on a Gospelbook, in which they promise each other love, faithfulness, matrimonial honesty, and, the bride, also matrimonial obedience. The betrothal of the Byzantine rite is to be performed in the narthex or vestibule of the church. This was a hall in front of the church proper, where among others, the divine office was recited by monastic com­ munities. The rite consists of the blessing and imposition of the rings, after which the bridal party is conducted into the church before the tetrapod, a table in front of the sanctuary. At the tetrapod all sacra­ ments are administered with the exception of Holy Eucharist and Holy Orders, for which the sanctuary and the altar is reserved. The marriage ceremony proper follows the pattern of the Divine Liturgy or Mass, as do other sacramental and non-sacramental rites of the Byzantine rite: several meaningful prayers and blessings, coronation with a floral wreath or a metal crown, reading of epistle and gospel pericopes, recitation of the Our Father, deposition of the wreaths, procession around the tetrapod (in older times around the church), drinking from a cup of blessed wine. The imposition of wreathes or crowns is common to all Oriental rites, and is considered the essential part of the liturgical ceremony. From it the whole rite received its name: coronation. The other Eastern rites have also developed or retained quite meaningful marriage rites (cf. A. Raes, S.J., Introductio in Liturgiam Orientalem, Rome 1947, p.156-177); and A. Raes, S.J., Le Manage, sa celebration et sa spiritualité dans les Eglises d'Orient, Editions de Chevetogne, 1958). 2.

CANON LAW ON THE LITURGICAL FORM

Marriages shall be celebrated in accordance with the prescriptions of approved liturgical books, except in case of necessity when an abridgment may be permissible. (1) Curtailment of the Liturgical Form The case of necessity will primarily refer to lack of time, e.g., when one of the parties to a marriage is sick in bed, lack of necessary liturgical implements, etc. However, there is no need to exclude moral necesssity, i.e., subjective circumstances which exist in the mind of the parties, and which, considering their condition, schooling, age, etc., are unsurmountable to them. Example: Basil and Catherine were bom and baptized as Catholics of the Byzantine rite. When their parents immigrated to the United

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States and established their residence in a town, the whole family joined the only local church of their rite, which was a schismatic one. They were consequently married in that church. When they later moved into another town, they joined again the only church of their rite, which was a Catholic one. Since both were baptized as Catholics, for a certain time nobody suspected they were married outside the Church. After five years however several parishioners found it out and tried to persuade them to convalidate their marriage in the Catholic Church. Their pride did not permit them to have the ceremony re­ peated, which would have been identical to the one used in their first marriage rite. They had no objection when an abbreviated ceremony was proposed to them in the rectory before two witnesses and the pastor. For these reasons the ordinary permitted the omission of some parts of the liturgical rite of marriage, notably the coronation. If we compare CrAll with CIC we find that c.1101 and 1102 are missing in the former. Can. 1101 refers to the solemn nuptial bene­ diction, which in the Latin rite does not necessarily belong to the mar­ riage rite; in some countries it is imparted only in exceptional instances. In the marriage rites of the various Oriental Churches there exists only one, indivisible form of the marriage ritual, at least what regards the normal case, which includes also special solemn benedictions, like the coronation in the Byzantine rite. A special mention of such rites was thus unnecessary. (2) The Liturgical Form Of Mixed Marriages Can. 1102 was omitted from CrAll for another reason. The historical evolution of die marriage ritual of the Oriental rites shows that there was always only one form of celebrating marriages, as far as mixed marriages were concerned. Marriages with non-Catholics were rare and then often performed without intervention of the Church, especially if the non-Catholic party was not baptized, since the conviction of the necessity of a religious form of marriage was not universal at all times. From the absence of the prescription of c.1102 it follows that the marriages of Oriental Catholics are to be performed always in the same manner, even if they marry baptized or non-baptized non-Catholics, that is, in the church and with all ceremonies. The local ordinary may, however, introduce distinctions in the external celebration between strictly Catholic marriages and mixed marriages, provided this does not change the requirements of liturgical books. He can, e.g., restrict them to a chapel of the church, to a certain hour, etc. When a Latin rite priest is called upon to assist at the marriage of an Oriental Catholic with a non-Catholic for any reason,, especially because of the inavailability of a priest of that Oriental rite, the question arises whether he has to observe c.91 CrAll, which demands the ap­ plication of all rites, or c.1102 CIC, which orders as a general rule that only the essential form is to be observed, omitting some or all religious ceremonies in a marriage entered into with a dispensation from mixed religion or disparity of worship. The Pontifical Commission for the Redaction of the Oriental Code of Canon Law resolved on January 8, 1953 (AAS, 1953, 104) that Latin rite priests have to observe the pre­ scriptions of c.1102, and Oriental priests, should they assist at a marriage of a Latin rite Catholic with a non-Catholic, the prescription of c.91.

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Consequently, in the case of a Latin rite pastor who is the proper pastor of an Oriental rite Catholic party to a marriage with a non­ baptized person, the marriage will take place outside the church edifice, i.e., in the rectory, without any ceremony, unless the ordinary permits otherwise, omitting even the blessing, which for other Oriental mar­ riages would be an essential part of die form (cf.c.85 # 2). (3)

Marriage Blessing Separated From Marriage Assistance

Oriental Catholics who entered into a valid marriage outside the Church before May 2, 1949, either before a civil magistrate or a re­ presentative of a non-Catholic religious denomination, in certain coun­ tries where they were not obliged to an obligatory marriage form, may subsequently receive the liturgical blessing. If the marriage contracted validly outside the Church was entered into under circumstances where a Catholic priest was available, they have committed a grave sin, from which they have first to receive sacramental absolution. In addition, if it was a marriage before a non-Catholic minister, they have incurred excommunication, from which absolution must be sought and received in the external forum. The ceremony for such marriages should be that contained in the liturgical books, and no abbreviation shall be permitted as a rule. Since in many cases it is doubtful whether a marriage entered outside the Church before May 3, 1949, was actually valid, although the pre­ sumption (in dubio standum est pro valore matrimonii) supports this view, the marriage should be contracted with the consent exchanged as an act de praesenti. No marriage banns are to precede it. A similar situation exists in the blessing of a marriage contracted by proxy (cf.c.81). (4) Nuptial Divine Liturgy

Divine Liturgy or Mass was for the first centuries of Christianity a community affair. Therefore, happenings which had only a meaning for some members of the congregation were usually celebrated without Mass. Even in the most recent Trebnyk or ritual issued for the Ruthenians (Ukrainians and others) by the S. Congregation for the Oriental Church in 1952 there is no provision for the celebration of Mass in con­ nection with a funeral or a wedding. However, the marriage rite in the Christian East was often con­ nected with the Divine Liturgy because it was celebrated on Sundays or holydays after Mass, in which the parties had received Holy Com­ munion. Therefore today the pastoral clergy urges the faithful to observe on the occasion of weddings the following order: 1. Confession to be made at a convenient time. 2. Assistance at Mass, during which they receive Holy Communion. 3. The Mass is not to be terminated with the usual dismissal, but after the blessing of the congregation the priest passes over to the marriage rite, which has its own form of dismissal. The reading of the Epistle and Gospel, and the recitation of the Our Father is not repeated. 193

THE RECORDING OF MARRIAGE Canon 92. # 1. The pastor or he who takes his place shall after the celebration of the marriage as soon as possible enter into the marriage registers the names of the parties and witnesses, the place and date of the celebration of the marriage, the dispensation, if a dispensation had been granted, its grantor, together with the im­ pediment and its degrees, and other items, according to the manner prescribed in liturgical books and by the proper Hierarch; and this although another priest, on the strength of a faculty obtained from him or from the Hierarch, assisted at the marriage.

This paragraph contains improvements over the text of the corre­ sponding paragraph of c.1103 CIC: the pastor is explicitly reminded to record with other marriage data also a possible dispensation. # 2. Moreover, the pastor shall also indicate in the baptismal register that the spouse contracted marriage on a certain day in his parish. If the spouse was baptized elsewhere, the pastor shall direct­ ly or through the chancery office transmit the notice of the con­ tracted marriage to the pastor where according to the canons the baptism of the spouse should have been recorded, in order to have the marriage annotated in the baptismal register. # 3. Whenever marriage was contracted according to canon 89, the priest, if one assisted, otherwise the witnesses as well as the contracting parties are obliged to see to it that the contracted mar­ riage be recorded as soon as possible in the prescribed registers.

The Statutes of the First Archieparchial Convocation of Philadel­ phia have amplified the regulations in regard to the recording of mar­ riages in the following manner: “Canon 403. Within ten days after the celebration of a marriage, the pastor must notify the pastor of the parish where the contractants had been baptized, or, in the case of converts, the pastor of the parish where they had been received into the Church. Canon 404. The recording of marriages in the marriage register shall be governed by the following rules: 1. The obligation of recording the marriage in the register is im­ posed upon the priest in charge of the parish, not upon the priest who assisted at the marriage. 2. Information concerning the assisting priest should be clearly re­ corded so that it would be known by what authority the priest assisted at the marriage. In addition to the baptismal name and surname of the priest, his official position must be added, e.g., “pastor”, “administrator”, etc., or the source of his authority must be stated, e.g., “assistant pastor”, “delegated by the pastor”, “delegated by the Most Reverend Metropolitan”, “delegated by the Right Reverend Archieparchial Syncellus”, etc. The baptismal name and surname of the priest are to be recorded separately for each marriage and not jointly, nor by the insertion of ditto marks beneath the record of the other marriages entered on the same page. 194

3. Dispensations from any of the impediments as well as from any of the banns are to be recorded under the column “Annotations” along with the protocol number and date of the rescript, e.g., “Dispensation from two banns granted by the Chancery of N...., No...., Date.. 4. Depending on the individual case, the dissolution of a previous bond of marriage shall be recorded under the column “Annotations” ac­ cording to the following examples: (a) “Widower of N... .N...., who died in N... (city, state) on (date)” (b) “Bridegrooms previous marriage to N...N... declared invalid by the Chancery of N.. ..on (date), No...” 5. Inasmuch as persons who intend to contract marriage must obtain a marriage license from the state in which they propose to cele­ brate the marriage, the priest shall record the number of this document and its place of issuance, e.g., “License ... (place) ..., Pa. No......... ” 6. Persons who must have their marriage convalidated (which marriage was a valid contract according to the laws of the United States or some other country, but invalid in the eyes of the Church), need no new marriage license. The convalidation, however, is to be recorded in the following way: “Convalidation of a marriage entered into at ... (place, on ... (date), before the .... (minister, civil magistrate) of ... (church, office).”

Canon 405. The pastor is obliged to file chronologically and to preserve all documents which concern the following marriages: 1. Marriages contracted by his parishioners within the limits of his territory, at which he himself, his assistant, his delegate, or a priest subdelegated by his assistant or his delegate, assisted. 2. Marriage contracted by non-parishioners within the limits of his territory, at which he himself, his assistant, his delegate, a priest sub­ delegated by his assistent or his delegate, assisted. Canon 406. Marriages documents shall be preserved in the following manner: 1. The documents are to be kept together, fastened with a metal clasp and put in a special folder or envelope. Each folder or envelope ought to be labeled clearly, indicating the baptismal name and surname of both parties, as well as the page number of the marriage register for the year in which the marriage was celebrated. In case the prenuptial investigation is entered in a separately bound Prenuptial Investigation Book, the pastor shall likewise add the page where the prenuptial in­ vestigation is recorded to the aforesaid, for example: “N...N... and N... .N... year.... Prenupt.Invest.Book, page...” 2. At the beginning of a new year the folders or envelopes for all marriages of the preceding year are to be bound and kept in a safe place, and shall be produced on the occasion of a canonical visitation. 3. If one or both of the parties need a document preserved in the marriage files, and if it is'permissible for either or both of them to possess the document requested, e.g., a baptismal certificate, the pastor shall draw up an exact copy of the document, deposit it in the files and return the original to the parties.” 195

Due to the fact that a large number of Oriental rite Catholics, especially the most recent immigrants from Ukraine and the former SubCarpathic Region, were born outside the United States and Canada in Europe, mostly behind the Iron Curtain, in countries where the Catholic hierarchical organization has been liquidated or, if still existing, is forbidden to accept any communications from abroad, pastors who assist at the marriages of such persons cannot request the pastor of the place of baptism to record the marriage in the baptismal records. Since no procedure has been developed as yet in respect to this recording, the matter has to rest until other provisions have been made by the Holy See.

CHAPTER SEVEN:

THE SECRET MARRIAGE (cc.93 - 96)

Definition (c.93 = c.1104 CIC) Obligation of Secrecy: 1. Persons Obliged (c.94 = c.1105 CIC) 2. Cessation of Obligation (c.95 = c.1106 CIC) Recording (c.96 = c.1107 CIC) Canon 93. The entering of a marriage of conscience, that is that the marriage might be celebrated with omission of banns and secretly, can be permitted by the local Hierarch himself, with the exclusion of the Syncellus without a special mandate, only for a very grave and most urgent reason, in accordance with the follow­ ing canons.

Canon 94. The permission to contract a marriage of conscience carries with it the promise and grave obligation to keep the secret on the part of the assisting priest, the witnesses, the Hierarch and his successors, and also of each spouse, as long as the other does not consent to the publication.

Canon 95. The obligation of this promise on the part of the Hierarch is not extended to the following cases: 1. if any scandal or grave injury to the sanctity of matrimony threatens from the keeping of the secret; 2. if the parents neither take care to have the offspring born from such a marriage baptized, or have them baptized under fictitious names without notifying in the meanwhile the Hierarch within thirty days of the birth and baptism of offspring, adding the real names of the parents; 3. if the parents neglect the Christian education of the offspring.

Canon 96. The marriage of conscience is not to be recorded into the ordinary marriage and baptismal register, but in a special book which is to be kept in the secret archives of the Chancery office.

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The institution of a marriage of conscience was not known in the Christian East, because it evolved in the West on account of the en­ croachments of civil authorities into the province of marriage law. When laicistic governments in Europe enacted matrimonial or other legislation with which Catholics could not always reconcile the demands of ecclesiastical marriage law, or solely with disproportionate detriment, the legal institution of marriage of conscience was developed. The Church permitted Catholics to contract a secret marriage while still being con­ sidered unmarried. Laws which led to this solution were, e.g., those which forbade commissioned officers of armed forces to marry except under pe­ cuniary conditions with which they could not comply, or such regulations which punish widows of retired civil servants with loss of their govern­ mental pension in case of remarriage. Since in the Christian East either government acknowledged the exclusive competence of the Christian Churches in matrimonial matters of their faithful, as in those countries where Islam prevailed, or the dissident Churches ceded a large share of their legislative prerogatives to the state as in the Russian Empire and in various nations of SouthEast Europe, no need evolved for the establishment of a marriage of conscience. Marriage of conscience should not be confused with two other forms of contracting marriage: 1. Marriage celebrated secretly according to the usual ecclesi­ astical form in order not to embarass the couple since they have been considered validly married. Such cases will not be rare among the Byzan­ tine rite Ukrainian Catholics on the American continent. Some of them might have contracted marriage in a church of apostates, either because there was no church of their rite and language in that locality, or they were induced to it by social pressure. Having returned to the practice of their Catholic faith, they might be reluctant to reveal this circumstance to others. Dispensation from all banns, and perhaps from employing witnesses, who might divulge the secret, will satisfy both the laws of the Church and the needs of the parties. 2. Marriage celebrated secretly according to the extraordinary marriage form (cf.c.89) because of special circumstances.

CHAPTER EIGHT: TIME AND PLACE OF THE MARRIAGE RITE (cc.97, 98)

Days on Which the Marriage may be Performed (c.97 = c.1108 CIC) Place of Marriage Rite (c.98 = cf.c.1109 CIC)

TIME Canon 97. # 1. Marriage may be contracted at any time of the year, without prejudice to the prescription of # 2.

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# 2. During the sacred time before Christmas and in Lent, as well as during other times determined by particular law, the celebra­ tion itself of the marriage, or solemnity alone, is forbidden in accor­ dance with particular law. # 3. The local Hierarchs, however, are entitled to permit during forbidden time for a just reason either the celebration itself of the marriage or its solemn blessing; with the admonition to the parties, however, to refrain from pompous displays.

This canon does not regulate the entire matter of forbidden times. Only Advent and Lent are forbidden times for all Orientals, while it is left to particular law to decide: 1. whether other times are forbidden as well; 2. whether the prohibition includes the celebration of marriage itself, or forbids only the external solemnity connected with and separa­ ble from a marriage rite. Orientals, even if they are under the jurisdiction of Latin rite ordin­ aries, have to observe the respective regulations of their particular law, and not the rules for forbidden times in force in their Latin rite diocese. According to the common law of the Byzantine rite (Ukrainians, Ruthenians, Melkites, Romanians, Russians, etc.) the celebration of marriage itself is forbidden during these sacred times: 1. From the beginning of Advent (November 15th) to Epiphany inclusive (January 6th). 2. From the first Monday of Lent, which is in the Latin rite the Monday before Ash Wednesday, till the Sunday after Easter inclusive. 3. During the Apostles’ Fast, from Monday after the Sunday after Pentecost, till June 29th, the feast of SS.Peter and Paul. 4. During the Assumption Fast, from August 1st to August 15th inclusive. 5. On the feast of the Beheading of St. John the Baptist (August 29th), even though it should fall on a Sunday. 6. On the feast of the Exaltation of the Holy Cross (September 14th), even on a Sunday. 7. On all Wednesdays and Fridays throughout the year. The Byzantine rite Ukrainian Ecclesiastical Province of Philadelphia received from the S.Congregation for the Oriental Church the permanent induit to reduce the forbidden times to the following days: 1. from the beginning of Advent (November 15th) to Christmas Eve (December 24th), inclusive; 2. from the Monday after Cheesefare Sunday, i.e., the Monday before Ash Wednesday, to Easter Sunday, inclusive. In addition, the First Archieparchial Convocation of Philadelphia (1959) enacted the following rule: Canon 394, The faithful shall be discouraged from celebrating marriage: 1, on all Fridays, with the exception of the Fridays of privileged weeks, wherin no fast or abstinence is prescribed;

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2. on the feast of the Beheading of St. John the Baptist (August 29th); 3. on the feast of the Exaltation of the Holy Cross (September 14th). If, however, the parties insist, the marriage can be blessed on the aforesaid days, providing they promise to obey the rules of abstinence, and likewise to refrain from all excessive display and boisterous enter­ tainment. The weeks after Christmas, Easter and Pentecost, and after the Sunday of the Publican and Pharisee, are free of all abstinence and limita­ tions of feasting, and therefore called privileged. The general privilege was granted to all Orientals in the United States and in Canada of following the custom of the place in the matter of fast and abstinence. It is not restricted to places where no Oriental rite parish exists, but can be made use of everywhere. It can be inferred that this privilege may be extended also to closed or forbidden times, and Oriental Catholics will be free to follow the custom of die place equally in the matter of contracting marriages. Hence, if a wedding is to be held on a day on which it would be forbidden in their own rite, it could be celebrated by the competent pastor in a church of another rite in which it is permitted to have a wedding on that day. Dispensations from forbidden times can be granted by the ordinary of the church where the wedding is to take place. The celebration of the marriage may be also lawfully transferred to a church of the same rite which is not bound by the law of forbidden time. This refers to the transfer between any of two Catholic churches, one of which is bound to forbidden times while the other is free. The reason for the discrepancy could be different canon law regulations, or such circumstances as the use of a different calendar (Gregorian versus Julian). Examples: The marriage of Joseph, a Catholic of a certain Oriental rite, and Ann, a Latin rite Catholic, is blessed by Joseph’s pastor in Anns church on Epiphany because of the prohibition existing in Josephs church. Adam, a Ukrainian Catholic of the Archeparchy of Philadelphia, intends to marry Eve, of the same jurisdiction, on a certain day. Since Eve’s church follows the Julian calendar, according to which on the appointed day weddings are forbidden, they make use of the possibility to choose another church for the wedding, and decide to be married in Adam’s church where the forbidden time has already elapsed.

PLACE Canon 98. # 1. Marriage is to be celebrated in the parish church; in another church or oratory, whether public or semi-public, it cannot be celebrated except with the permission of the local Hierarch or the pastor.

# 2. The local Hierarch can only for a just and reasonable cause grant the permission for celebrating marriage in private homes, yet not in churches or oratories either of a seminary or of religious women, except in urgent necessity and with opportune precautions.

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While c.1109 # 2 CIC allows the ordinary to grant permission for a marriage in a private home only in an extraordinary situation. Oriental hierarchs need merely a reasonably justifying cause. In the case when the other church or oratory belongs to another rite or jurisdiction, the pastor or hierarch will need in addition the con­ sent of that hierarch or pastor or rector (c.86 # 1, n.2) for the validity of the marriage assistance. Paragraph 3 of c.1109 was not taken over into CrAll since Oriental canon law orders also marriages between Catholics and non-Catholics, baptized or non-baptized alike, to be celebrated in church (c.91).

CHAPTER NINE:

THE EFFECTS OF MARRIAGE (cc.99 - 106)

Primary Effects: Marriage Bond and Sacramental Grace (c.99 = c.1110 CIC) Mutual Rights and Duties (c.100 = c.llll CIC) Wife Acquires Status of Husband (c.101 = c.1112 CIC) Duties of Parents Towards Children (c.102 = c.1113 CIC) Legitimacy of Children: 1. General Principle (c.103 = c.1114 CIC) 2. Presumption of Legitimacy (c.104 = c.1115 CIC) 3. Legitimation by Subsequent Marriage (cc.105, 106 = cc.1116, 1117 CIC)

Canon 99. From a valid marriage arises a bond between the spouses which in its nature is perpetual and exclusive.. Christian marriage, in addition, bestows sacramental grace to those spouses who place no obstacle. Canon 100. Either one of the spouses possesses from the very beginning of their marriage equal rights and duties concerning the actions proper to conjugal life.

Canon 101. Unless special law provides otherwise, the wife shares in the status of the husband as far as canonical effects are concerned.

Among the rights a wife is entitled to share is that of being buried together with her husband (c.1229 # 2 CIC). Consequently, non-Catholic spouses of Catholics, who have fulfilled faithfully the guarantees signed by them at the time they were married in a Catholic Church, have a right to be buried in a Catholic cemetery. If such a non-Catholic husband chose a non-Catholic cemetery for his burial, the Catholic wife too can lawfully be buried in the same tomb. Because these prin­ ciples were not clear, entire congregations rejected return to the Church after they had become estranged on account of apostasy to some Oriental dissident organization in the United States and Canada, since they did 200

not want to leave behind them their dead ones, buried in non-Catholic cemeteries. Catholics are entitled to choose for their funeral a church other than that of their own parish (c.1223 # 1 CIC), provided it is a church of their own rite. “The celebration of funerals and the reception of fees from families of mixed rite belong to the pastor of the rite to which the deceased belonged” (Art.35 of Cum Data Fuerit - AAS, 1929, 160; Art. 40 of Graeci-Rutheni Ritus - AAS, 1930 353). Canon 102. The parents are held by a most serious obligation to care, according to their possibilities, for the religious and moral, as well as for the physical and civil, education of their offspring, and to provide also for their temporal welfare.

The obligation of parents to provide adequate religious instruction for their children extends also to their peculiar rite. The Statutes of the Archeparchy of Philadelphia decree in this matter:

Canon 533. Parents whose children frequent Catholic parochial schools of another rite, or public schools, are to be often reminded of their obligation to provide their children with sufficient instruction on our rite. Canon 534. Parents of whom the father belongs to our rite, or in the case of a mixed marriage, the Catholic parent, are obliged to send their children to the school of their parish or to that of another of our parishes, provided this is no hardship for them. Parents who culpably refuse to fulfill this norm may not be absolved in confession. In case of difference of opinion between the parents and the pastor as to what constitutes unproportionate hardship, a decision shall be sought from the Archieparchial Superintendent of Schools. Canon 103. Legitimate children are those conceived or born in a valid or putative marriage.

The corresponding c.114 CIC contains an exception for the impro­ bable case where a couple have lawfully separated and both or one of them either entered religious life and made solemn profession, or the hus­ band has received orders, but later have unlawfully resumed marital life. A child bom from such cohabitation would also be illegitimate in spite that his parents were lawfully married. The present canon omitted the first exception probably because it is quite unlikely that religious who have taken solemn vows under such circumstances should again return to married life without sanction of ecclesiastical authorities. As to men in sacred orders, cognizance had to be taken of the fact that the majority of Eastern Churches permit validly married men to continue conjugal life after the reception of holy orders. Canon 104. # 1. The father is he whom lawful marriage shows as such unless the contrary is proved by evident proofs.

# 2. Those children are presumed legitimate who are born at least a hundred and eighty days after the day of the marriage cele* bration or within three hundred days from the day when conjugal life has been dissolved.

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The time limits for the presumption of legitimate birth in c.1115 # 2 CIC were difined as “six months” and “ten months”. The present canon changed it to a more precise definition: “one hundred and eighty days” and “three hundred days.” Canon 105. The offspring becomes legitimated by a subsequent marriage of the parents, either valid or putative, either newly con* tracted or convalidated, even if not consummated, provided that the . parents have been capable of contracting marriage with each other at the time either of conception, or pregnancy, or birth. Canon 106. Children legitimated by a subsequent marriage are equal in all to legitimate ones as far as canonical effects are con* cerned, unless otherwise explicitly provided.

Such exceptions which exclude persons legitimated by the subsequent marriage of their parents are defined in various sections of the CIC. Some of them have been already legislated also for the Oriental Catholics, as, e.g., that affecting candidates for the dignity of cardinal (c.177 # 2, n.l. Cleri Sanctitati — c.232 # 2, n.l, CIC), of bishop (c.394 # 1, n.l, Cleri Sanctitati — c.331 # 2, n.l, CIC). The Syrians extend this exclusion to all prelatures and ecclesiastical dignities (Galtier, p.309).

CHAPTER TEN:

THE SEPARATION OF SPOUSES

ARTICLE ONE: DISSOLUTION OF THE BOND (CC.107 - 116)

Marriages Absolutely Indissolvable (c.107 = c.1118 CIC) Dissolution of Non-Consummated Marriages (c.108 = c.H19 CIC) The Pauline Privilege: 1. Definition (c.109 = c.1120 CIC) 2. Interpellations: (1) Definition (c.HO = c.1121 CIC) (2) Formal Requirements (c.111 = c.1122 CIC) (3) Right to Re*Marry (cc.112, 113 = cc.1123, 1124 CIC) The Privilege of the Faith (c.114 = c.1125 CIC) Dissolution of Non*Sacramental Marriages (c.H5 = c.1126 CIC) The Privilege of the Faith in Doubtful Cases (c.U6 = c.1127 CIC)

RATUM ET NON-CONSUMMATUM Canon 107. A valid ratum and consummatum marriage cannot be dissolved by any human authority and for any reason except by death.

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Oriental dissidents admit complete divorce of a Christian marriage. Already the Byzantine Emporer Justinian the Great (483-565) enumerates in his 117. Novel nine grounds of divorce: 1. plotting on the part of one spouse against the life of the emporer; 2. plotting against the life of the other spouse; 3. adultery or moral depravity on the part of the wife; 4. enticement to debauchery caused by the husband upon his wife; 5. frequent dealings of the husband with another woman; 6. false ac­ cusation of the wife for adultery, perpetrated by the husband; 7. choos­ ing of religious life as monk or nun; 8. incurable impotence; 9. prolonged capture in a war. To these grounds were later added others, especially desertion or separate living for a certain period of time, with the result that there is no marriage which cannot be dissolved by the ecclesiastical tribunals (ci.Coussa, De Matrimonio, p.252). Canon 108. A non-consummated marriage between baptized persons or between a baptized party and a non-baptized party is dis­ solved in virtue of law itself by major or solemn religious profession as well as by dispensation granted by the Roman Pontiff for a just reason at the request of either party, or of one of them though the other objects.

Before a local hierarch can institute proceedings to obtain the dis­ pensative dissolution of a non-consummated marriage, he must receive permission from the Apostolic See. If at least one of the parties of such a marriage is a Catholic of an Oriental rite, approval for the opening of the procedure of establishing the inconsummation is to be sought from the S.Congregation for the Oriental Church. If, however, one of the par­ ties is a non-Catholic, the Holy Office will be competent.

PAULINE AND PETRINE PRIVILEGE Canon 109. # 1. A marriage between non-baptized persons, though consummated, can be dissolved in favor of the Faith on the strength of the Pauline Privilege. # 2. This Privilege is not to be applied to a marriage between a baptized party and a non-baptized party contracted with dispen­ sation from the impediment of disparity of worship.

Although a marriage contracted between a Catholic and a non-bap­ tized person after they had received a dispensation from the diriment impediment of disparity of worship cannot be dissolved in virtue of the Pauline Privilege, canon law assigns to the Roman Pontiff the power to dissolve any non-sacramental marriage, not excluded one entered into in the Church in the above circumstances. Numerous instances have been reported in professional publications during the last decade of such dispensative dissolutions (cf. E.Sadlowski, Dissolution of Marriages Celebrated coram Ecclesia with a Dispensation from the Impediment of Disparity of Cult by the Supreme Authority of the Church in Favor of the Faith, Washington, D.C., The Canon Law Society of America, 1959). Canon 110. # 1. Before the converted and baptized party validly contracts a new marriage, he must first interpellate the non-baptized party, except in the case of canon 114:

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1. whether the other party also wishes to be converted and re* ceive baptism; 2. whether he is willing at least to cohabit peacefully without offense to the Creator. # 2. These interpellations must always be made, unless the Apostolic See has otherwise decreed.

Canon 111. # 1. The interpellations shall be made, as a rule, at least in summary and extrajudicial form, upon the authority of the Hierarch of the converted spouse, from whom the non*baptized party can, on special request, obtain a certain time for reflection, however, with the warning that, if the granted time elapses unused, the reply will be presumed to be in the negative. # 2. Interpellations made privately by the converted party himself are also valid, even lawful, if the above prescribed form cannot be observed; in this case, however, they must be proved in the external forum by at least two witnesses or by another legal kind of proof.

Canon 112. If the interpellations were omitted by virtue of a declaration of the Apostolic See, or if the non*baptized party has given either explicitly or tacitly an answer in the negative, the bap* tized party is entitled to contract a new marriage with a Catholic person, unless after baptism he himself gave just reason for sépara* tion to the non*baptized party. Canon 113. The baptized spouse does not forfeit the right to contract a new marriage with a Catholic person, although he lived again in conjugal union with the non baptized party after receiving baptism, and he can therefore make use of his right if the non-bap* tized party afterwards changes his mind, and without just cause departs or no longer cohabits peacefully without offense to the Creator. Canon 114. That which concerns marriages in the Constitutions of Paul m Altitudo of June 1, 1537; of Paul V Romani Pontificis of August 2, 1571; of Gregory Xm Populis of January 25, 1585, and was given to individual places, is extended also to other countries in the same circumstances.

DOCUMENTS FROM THE CONSTITUTION OF POPE PAUL HI ALTITUDO OF JUNE 1, 1537 “...We realized not without great spiritual joy of Our mind that so many inhabitants of Western and Southern India, enlightened by the help of the Holy Spirit, though they did not share in the Divine law, nevertheless cast off completely from their minds and hearts the errors still now observed and embraced the truth of the Catholic Faith and the unity of the Holy Church, with the desire and intention to live in ac­ cordance with the rules of the same Roman Church.. .But concerning their marriages, We order that this shall be observed, that those who had

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before their conversion several wives according to their customs and do not remember which one they took first, shall after conversion choose one of them whom they desire and with her contract marriage using the form de praesenti as it is customary. Those, however, who remember whom they took first shall dismiss the other and retain her. And we grant them that relatives of the third degree of consanguinity as well as of af­ finity shall not be excluded from contracting marriages as long as this Holy See shall not decide to decree otherwise..

CONSTITUTION OF POPE ST. PIUS V ROMANI PONTIFICIS OF AUGUST 2,1571 “The proper and circumspect providence of the Roman Popes used to take care by declarations and other purposeful remedies in such a man­ ner that which for the salutary direction of the Indians newly converted to the Faith is to be ordered and determined might not be subject to any scruple or hesitation. And, therefore, since, as We understood, several wives are allowed to Indians who remain in their infidelity, whom they repudiate for the most trifling reason, it came so that to those who re­ ceived baptism it was permitted to remain together with that wife who was baptized together with the husband. And since it happens very often that she was not his first wife, the ministers and bishops are tormented by very hard scruples, for they consider it not a valid matrimony. But since it would be the most serious hardship to separate them from their wives with whom the said Indians received baptism, most of all because it would be very difficult to find the first wife, We therefore, desiring to provide graciously with paternal affection for the welfare of the said Indians, and in order to free bishops and ministers from such scruples, on Our own accord and with Our positive knowledge and by the pleni­ tude of the Apostolic power, declare hereby with Apostolic authority that the Indians who are already baptized as well as those who are to be bap­ tized in time to come are entitled to remain, after having dismissed the others, with that wife who has been or shall be baptized with them, as with a lawful wife, and such marriage shall be considered lawful,.. .*

CONSTITUTION OF POPE GREGORY Xm POPULIS OF JANUARY 25, 1585 “It is becoming to be indulgent to the peoples and nations newly con­ verted from the error of paganism to the Catholic Faith in regard to liber­ ty in contracting marriages, lest men, not being accustomed at all to ob­ serve abstinence, therefore less willingly persist in the Faith and also others by their example deter from its acceptance. And since it often happens that many infideles of both, though especially of the male sex, after having contracted marriages according to pagan rite, are removed, captured by enemies, from Angola, Ethiopia, Brazil, and other parts of India, from their native country and their own spouses in the most re­ mote regions, so that these as well as the captives who remained in the native country, if they later convert to the Faith, are not able to inter­ pellate, as it should be done, their non-believing spouses, separated by so great distances of places, whether they will co-habit with them without offense to the Creator, either because sometimes the access to hostile and 205

barbarous countries is not possible even to messengers, or because they completely ignore in which countries they have been transported, or be­ cause the length of the route causes great difficulty, therefore We, con­ sidering such connubial unions contracted between non-baptized persons rightful, although not so firm that when necessity advises it they could not be dissolved, moved with paternal pity for the infirmity of these peo­ ples, do hereby concede by the plentitude of Apostolic power to all and every single of the mentioned local ordinaries and pastors and to priests of the Society of Jesus who are by the superiors of the same Society approved to hear confessions and sent to the said countries for a certain time or there admitted, the faculty of dispensing all Christians of both sexes who inhabit the aforesaid countries and who afterwards became converts to the Faith, but had before receiving baptism contracted mar­ riage, so that any of them may during the lifetime of the non-baptized spouse, and without any necessity to ask for his consent or to wait for his reply, contract marriages with any faithful, be it even of another Rite, and solemnize it before the Church, and afterwards, their consummation having taken place by intercourse, live together licitly for their lifetime, provided that it is established, be it only summarily and outside of court, that it was not possible to interpellate legally the absent spouse, as it has been aforesaid, or the interpellated has not communicated his decision within the time allotted in the interpellation. We decree further that these marriages must never be dissolved, but shall be held as valid and firm, and the hence originating offspring as legitimate, though after­ wards it became manifest that the first, non-baptized spouses had been hindered for just reasons to declare their decisions, and even if they were converted to the Faith at the time of the contracting of the second mar­ riage. Nothing shall hinder, etc.,...” Canon 115. The bond of the first marriage contracted in infide­ lity is dissolved only when the converted party actually contracts a new marriage.

Canon 116. In doubtful cases the Privilege of Faith enjoys the favor of the law.

ARTICLE TWO:

SEPARATION OF BED, TABLE AND HABITATION (cc.U7 ■ 121)

Obligation of Common Conjugal Life (c.117 = c.1128 CIC) Adultery as Justification for Permanent Separation (cc.118,119 = cc.1129, 1930 CIC) Reasons for Temporary Separation (c.120 = c.1131 CIC) Custody of Children (c.121 = c.1132 CIC) Canon 117. The spouses are obliged to live together in conjugal communion unless a just reason excuses them.

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PERMANENT SEPARATION Canon 118. # 1. The spouse has the right to dissolve the com* munity of life on account of adultery of the other spouse, the bond remaining intact, unless he consented to the crime or gave cause to it or expressly or tacitly condoned it or also committed the same crime himself. #2. It is considered a tacit condonation when the innocent party, after having become certain of the crime of adultery, con* tinues on his own accord to live with the other party in marital affection. That the affection is marital is presumed, unless within six months the adulterous spouse has been either expelled or aban* doned or legal accusation has been brought against him.

While c.1129 # 2 CIC decrees that cohabitation with conjugal affection constitutes tacit condonation of the adultery, and continues that “it is presumed unless either the adulterous and delinquent spouse was expelled or a legal accusation was brought against him (her)”, CrAll replaces the “it” with “conjugal affection”, to make it more accurate, because actually not condonation but conjugal affection is presumed, and where there is conjugal affection, tacit condonation is the explanation surmised by the law. Canon 119. The innocent spouse who either upon sentence of the judge or by his own authority lawfully abandoned (the other) is under no obligation to readmit ever again the adulterer to the community of life. However, he has the right to readmit or to recall her (him), unless she (he) embraced a state of life contrary to marriage with his (her) consent.

TEMPORARY SEPARATION Canon 120. # 1. 1. If the other spouse joined a non-Catholic sect; or educated the offspring as non-Catholics; or leads a criminal and despicable life; or causes great danger either to the soul or the body of the other; or if through cruelties he makes common life too difficult; these and other reasons of this kind are as many lawful causes for the other spouse to separate upon the authority of the local Hierarch, and also upon his own authority, if it is certainly evident, and there is danger in delay. 2. In all these cases common life must be resumed when the reason for the separation ceases. However, if the separation was pronounced by the Hierarch for a definite or indefinite time, the inno­ cent spouse is not obliged to do so except on the strength of a decree of the Hierarch or after the determined time has elapsed. # 2. Also the spouse maliciously deserted by the other can obtain a decree of separation from the local Hierarch for a definite or indefinite time according to # 1, n.2.

Can.1131 CIC does not have what is contained in # 2. The reason for this difference is this: according to procedural law (c.472 Sollicitu­ dinem Nostram — c.1964 CIC) a suit can be brought by an abandoned

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wife before the tribunal of the place where the marriage was contracted, or of the place where the husband has a domicile or quasi-domicile. The Code Commission excluded on July 14, 1922, the possibility that the wife could bring suit against her husband before the tribunal of her own distinct quasi-domicile (AAS, 1922, 529). It must be remembered that a wife who is not legally separated is incapable of acquiring her own domicile (c.21 # 1 Cleri Sanctitati = c.93 CIC). However, besides the possibility of finding redress in a court of law, permission for legal separation can be obtained by an administative decree of the ordinary (Code Commission June 25,1932 - AAS, 1932, 284). The present canon speaks of this decree, and permits the wife, although not yet separated legally, to apply to the ordinary of her own distinct quasi-domicile for such a decree. She could, of course, apply also to any ordinary in whose territory her husband has a domicile or quasidomicile. However, if she should chose the judicial way, she would have no choice but would be bound to bring suit before the tribunal of any place where her husband has a domicile or quasi-domicile.

CUSTODY OF CHILDREN Canon 121. After the separation, the children shall be placed for education with the innocent spouse, and, if the other spouse is a non-Catholic, with the Catholic spouse, unless in both cases the Hier­ arch decides differently for the sake of the welfare of the children themselves, always safeguarding their Catholic education.

CHAPTER ELEVEN:

THE CONVALIDATION OF MARRIAGE ARTICLE ONE: SIMPLE CONVALIDATION (CC.122 - 126)

Marriages Invalid Because of Impediments: 1. General Requirements (c.122 = c.1133 CIC) 2. Renewal of Consent: (1) Definition (c.123 = c.1134 CIC) (2) Manner of Renewal (c.124 = c.1135 CIC) Marriages Invalid Because of Deficiency in Consent (c.125 = c.1136 CIC) Marriages Invalid Because of Deficiency in Form (c.126 = c.1137 CIC) Canon 122. # 1. In order to validate a marriage which is null on account of a diriment impediment, it is required that the im­ pediment ceases or be dispensed and that at least the party who is conscious of the impediment renews the consent.

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# 2. This renewal is required by ecclesiastical law for the validity although both parties gave their consent in the beginning and did not revoke it afterwards.

One of the ways a diriment impediment could cease to be an imped­ iment is through change of law. The new Oriental marriage codification in CrAll limited the extension of some impediments (consanguinity, af­ finity, spiritual relationship), thereby curtailing the particular law of some Oriental groups, and automatically removing the possible cause of the invalidity of marriages contracted without dispensation from the impediment (Galtier, p.360). Canon 123. The renewal of the consent must be a new act of the will for the marriage that is known to have been invalid from the beginning.

Canon 124. # 1. If the impediment is public, the consent is to be renewed by both parties in the form prescribed by law.

# 2. If it is occult and known to both parties, it suffices that the consent be renewed privately and secretly by both parties. # 3. If it is occult and known only to one party, it suffices that the party alone who is aware of the impediment privately and secretly renew the consent, provided the other perseveres in the given consent.

The notion of “public impediment’* is not that of c.1037 CIG but that of c.27 CrAll, in accordance with the modification introduced by the Code Commission on June 25, 1932 (AAS, 1932, p.284). Canon 125. #1. A marriage which is invalid on account of defect of consent is validated if the party who did not consent does now give the consent, provided the consent given by the other party perseveres. # 2. If the defect of consent was merely internal, it is suf­ ficient that the party who did not consent gives the consent internally.

# 3. If it was also an external one, it is necessary to manifest the consent also externally, either in the manner prescribed by law, if the defect was public, or in some private and secret manner, if it was an occult one. Canon 126. To have a marriage validated which is null on ac­ count of defect of form, it must be contracted with the observance of the legal form.

Because of the insufficient pastoral care during the first decades of this century, due to an extreme dearth of priests of their own rite and language, many Oriental rite Catholics on the American continent re­ ceived inadequate religious instruction, and their children received from them only a scant religious training. As a consequence, a considerable number contracted marriages outside the Church, before schismatic priests of their own ritual and national extraction, before Protestant ministers or civil magistrates. Many of them are now returning to the practice of their Faith, the first step of which is the convalidation of 209

their marriages. Most of them object to the embarassment of a new public marriage ceremony. If both parties to the marriage in question are Catholics, or if the non-Catholic spouse wants to become a Catholic, there is no possibility of using the expedient of a sanatio in radice, since it presupposes that one spouse obstinately refuses to submit to a marriage ceremony; such an attitude would not be accepted in a Catholic or prospective convert as fitting disposition for a reconciliation with the Church. The most important pastoral aspect is the existence of a possible cause of scandal, i.e., when the invalidity of the marriage is known in the parish. In such a case the convalidation must receive that extent of publicity which will insure divulgation of the convalidation and thereby also the removal of scandal. This is the reason why priests can never resolve such problems in confession. The lack of valid marriage vows and the fact of a marriage having been attempted outside the Church will most certainly come to the knowledge of the parish priests, as, e.g., when sacraments are to be administered to the spouses, when one of them is to be buried, etc. Absolutions and adjustments performed in the confessional are devoid of legal evidence ana thereby non-existent for use in future contingencies. Penitents with such problems must be remanded to the pastor even if the invalidity of the marriage, or that it was contracted outside of the Church, is not known in the parish. If the invalidity of their marriage is unknown in the parish, the ordinary can be approached for the granting of a dispensation from all banns, and in addition, according to c.98 # 2, with the request to permit the celebration of marriage in a private home, before witnesses who will divulge the secret only in case danger of scandal and when bad example should become an issue. Guided perhaps by some moralists, as Noldin-Schmitt-Heinzel (Vol. Ill, Innsbruck, 1955, 660 - p.564), priests assisted at Oriental rite con­ validation of marriages, the validity of which was ignored by everyone, in the sacristy, perhaps in the presence of church employees as witnesses, limiting the marriage ceremony to the mere exchange of consent. If no appropriate blessing was given by them, the marriage assistance will be invalid, since an essential element of die obligatory marriage form (c.85) was lacking (cf. Galtier, p.382). The undesired publicity can be reduced also by such means as per­ forming the marriage rite in the sacristy or a detached chapel of the church, or in some other church or oratory within the parish (c.98 # 1). Another way of overcoming the reluctance of the spouses to expose themselves to publicity would be an abbreviation of the marriage rite to the essentials, or even a dispensation from some essentials, as the pre­ sence of witnesses, to be granted by the ordinary or the Holy See. Another expedient could be the employment of proxies who would stand in for one, or perhaps even for both parties. Which method will be employed will depend on several consider­ ations, of which one is in virtue of divine law paramount: that no scandal (in the meaning of moral theology) be caused by it.

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ARTICLE TWO: THE SANATIO IN RADICE (cc.127 - 130)

Definition and Effects (c.127 = c.1138 CIC) Marriages which can be Validated: 1. Marriage Invalid Because of Impediments (c.128 = c.1139 CIC) 2. Marriage Invalid Because of Deficiency in Consent (c.129 a C.1140 CIC) Authority to Effect a Sanatio in Radice (c.130 = c.1141 CIC) Canon 127. # 1. The sanatio in radice of a mar­ riage is its validation, which entails, besides a dispensation from, or a cessation of, an impediment, a dispensation from the law of re­ newing the consent, and a retro-activity into the past, by a fiction of law, in regard to the canonical effects. # 2. The validation becomes effective at the moment of granting the favor; the retro-activity, however, is to be understood to reach back to the beginning of the marriage, unless it is expressly stated otherwise. # 3. The dispensation from the law of renewing the consent can be granted also without the knowledge of the parties. Canon 128. # 1. Any marriage entered into by parties with a mutual consent naturally sufficient yet juridically ineffective on ac­ count of a diriment impediment of ecclesiastical law or on account of defect of the lawful form can be validated in radice pro­ vided the consent perseveres.

# 2. Yet, a marriage contracted with an impediment of the natural or divine law, although the impediment has ceased after­ wards, the Church does not validate in radice, not even from the moment of the cessation of the impediment. Canon 129. # 1. If either in both or in one party the consent has ceased to exist, the marriage cannot be validated in radice, whether the consent was absent from the beginning, or has been given in the beginning but later on revoked.

# 2. If the consent, indeed, was lacking in the beginning but was given later, the sanatio in radice can be granted from the moment that consent was given. Canon 130. #1. Sanatio in radice can be granted only by the Apostolic See, except in the case of # 2.

# 2. The patriarch possesses the faculty to grant the sanatio in radiceifthe obstacle to the validity of the marriage is only the defect of form of celebration or an impediment from which he can grant dispensation.

211

The addition of # 2 to the wording of c.1141 CIC was necessary because of the special powers enjoyed by patriarchs. They can grant sanations for marriages because of a defect in the form, and also for marriages invalid because of a diriment impediment from which the patriarch can dispense. This refers not only to his ordinary power of dispensation (c.32), but also to delegated powers he might enjoy, as, e.g., those contained in Quinquennial Faculties. The patriarch could also grant sanation to a marriage invalid both because of a defect in the form and also on account of a diriment impedi­ ment. This would follow from analogy with the principles defined in c.39 (c.1049 CIC).

CHAPTER TWELVE: SUCCEEDING MARRIAGES Canon 131. Though chaste widowhood is more honorable, second and further marriages are nevertheless valid and lawful, without prejudice to can.59 # 2.

This is of special importance for the Christian East since most dis­ sident Orientals have a limitation how many marriages a person can contract successively. Some permit only three marriages, others four, perhaps with a special dispensation. Because they permit full dis­ solution of a marriage bond and remarriage after divorce, this limitation is not so odd, because it will happen not too rarely that a man or woman actually contracts a third or fourth religious marriage at a rather early age. Can.1143 CIC, which forbids that a widow receive the nuptial bles­ sing of the Latin rite in a subsequent marriage, was not reproduced here. Oriental rites do not know such a distinction, although some of them have a special liturgical formulary for the marriages of widowed persons.

212

INDEX ABDUCTION: 61, 111 ABROGATION: Impediments, 63 AB ACATHOLICIS NATI: 180 and Ne Temere, 181 ACTS: Official, witnessed, 61 ADMINISTRATIVE DECLARATION: of nullity, 151 ADOPTION: 61, 64, 71, 85, 125 ADULTERY: 64 crime, 111 separation, 207 ADVENT: 198 AFFECTUS ADULTERINUS: 111 AFFINITY: 64, 65, 69, byzantine rite, 120 implicit dispensation, 81 Oriental dissidents, 120 illegitimate, 61 legitimate, 61 interritual differences, 122 multiple impediments, 115, 117 Ruthenians, 121 Ukrainians, 121, 122 ALBANIA: 23 ALEXANDRIA, RITE OF: 20, 22, 33 AMBROSIAN RITE: 20 ANCESTORS: return to rite of, 35 ANACHORETES: 109 ANALOGY: between jurisdiction and assistance, 150 ANNULMENT: decreed by Dissidents, 39 evidence, 151 decree, competence, 185 ANTIOCH, RITE OF: 20, 22, 33 APOSTATE PRIESTS: assistance at mar­ riage, 147, 149 APOSTOLIC DELEGATE, cf. Delegate, Apostolic, APPROVAL OF BISHOP: for marriage, 163 ARABS: 25 ARCHBISHOPS: 21 ARGENTINA: 23, 160 ARMED FORCES: jurisdiction, 94 ARMENIAN RITE: 20, 24, 33, 185 celibacy, 102 marriage form, 183 dissidents, marriage form, 184

ASSISTANCE FACULTY: cf. Faculty of Assistance, ASSISTANCE AT MARRIAGE: in church of other jurisdiction, 141 lawful, requisites, 163 mixed rite marriages, 152 place, 140 valid, requisites, 133 and jurisdiction, analogy, 150 witnesses, 59 ATTEMPT OF MARRIAGE: 64 AUSTRALIA: 22 AUSTRIA: 22, 186, 188 AUTHORITATIVE INTERPRETATION: AUTHORITY, SUPREME: 62 AUTONOMOUS RITE: 20 AUTONOMY OF RITE: 19

17,

18

BANNS: in parish bulletin, 54 clandestine marriages, 189 Croats, 53 disparity of worship, 54 dispensation, 55 form, 54 information, 56 Italians, 53 Magyars, 53 Malabarians, 53 Malankarians, 53 Maronites, 53 mixed marriages, 54 obligation, 53, 163 parishes, in which, 53 particular law, 163 place, 53 repetition, 57 result negative, 49 Romanians, 53 Russians, 53 Ruthenians, 53 termination, 57 time, 54 Ukrainians, 53 written, 54

BAPTISM CERTIFICATE: 46, 56 proof of freedom, 48, 53 annotation, 48 not available, 48 BAPTISM: conditional, spiritual relation­ ship, 124 Oriental dissidents, 39, 50 doubtful, 91 non-Catholic, 50 proof, 50 Protestants, 40, 94, 97 spiritual relationship, 124 witnesses to prove, 57 BAPTISMAL REGISTER: change of rite, 36 marriage recording, 194 BASILIANS, UKRAINIAN: 108 BELGIUM: 22, 188 BELIEF, ERRONEOUS: 150 BENEDICTIONS: 108 BENEDICTIO SOLLEMNIS: 130, 192 BENEFICE: 139 BETROTHAL: blessing, 45 breach, 45 juridical form, 45 legal effects, 45 liturgical form, 45 recording, 45 rite of, 190 BISHOP: approval of marriage, 134, 163 assisting at marriage, 139 auxiliary, Oriental rite, 160 latin rite, ordaining, 103 residentials, Oriental, 21 suffragans, Oriental, 21 unmarried, 100 BLESSING OF MARRIAGE: 130 essential in marriage form, 210 liturgical and form, 135 liturgical, nature, 136

213

mixed rite marriages, 137 proxy marriages, 137 separated from assistance, 193 BOND OF MARRIAGE: impediment, 89 dissolution, 202 BOSNIA-HERCEGOVINA: 186 BRAZIL: 22, 160 BRIDEMAIDS: 59 BUCOVINA: 186, 188 BULGARIANS: 23, 118, 119, 186 celibacy, 102 BURIAL OF SPOUSES: 200 BYELORUSSIANS: 23 BYZANTINE RITE: 19, 20, 22, 25 transfer between groups, 33 affinity, 120 BYZANTINE CATHOLIC: 28 BYZANTINE RITE CATHOLICS: 188 celibacy, 102 BYZANTINE-SLAVONIC: 28 CALENDAR: Gregorian and CrAII, 38 CANADA: 188 Byzantine rite bishops, 28 marriage form for Oriental Catholics, 183 "CANA" CONFERENCES: 58 CARTHUSIAN RITE: 20 "CATHOLIC": 150 CELIBACY: 99 Byzantine rite, 102 Catholic Orientals, 100, 101 CLERGY, CELIBATE: preference, 100 CENSURED CATHOLICS AND MARRIAGE: 87 CENSURE: absolution, 189 CHALDEAN RITE: 20, 24, 33, 118, 186 celibacy, 102 CHANCERY FEE: for dispensation, 83 CHANGE OF RITE: cf. Transfer of rite, CHILDREN: custody, 208 illegitimate, transfer of rite, 34 legitimacy, 41 legitimate, definition, 201 legitimation, 202 rite, transfer, 34 CHOICE OF RITE: Oriental dissidents, 34 CHASTITY: vow of perfect, 84 virtue of clergy, 103 vow, diriment impediment, 106 CICOGNANI, CARDINAL AMLETO: 17 CIVIL LAW AND MARRIAGE: 60 CLANDESTINE MARRIAGES: 178, 182 banns, 189 convalidation, 189 investigation, competence, 190 Ruthenians, 186 CLASSES: in religious institutes, 109 CLERGY: married, 101 Oriental in latin rite dioceses, 103 Oriental in U.S.A, and Canada, 102 Ukrainian, celibacy, in North America, 103 CLERI SANCTITATI: 18 C. I. C.: form, 134, 187 and Orientals, 142 CODIFICATION OF ORIENTAL CANON LAW: 17, 21 COMMON ERROR: 150 COMMON LAW MARRIAGE: 139

214

COMMUNION, Holy: 58 First, 56, 59 COMPUTATION OF RELATIONSHIP: Germanic, 112 Roman, 112 CONCUBINAGE: 124 CONCURRENCE OF POWER OF DISPENSATION: patriarch, 80 CONDITION: against essense of marriage, 131 of the future, 132 natural law, 132 necessary, 131 CONFESSOR: Dispensation, 76 convalidation of marriage, 189 CONFIRMATION: certificate, 56 Christian converts, 52 Oriental Dissidents, 52 administered by a priest, 52 proof, 52 spiritual relationship, 125 CONGREGATION, SACRED, OF SACRA­ MENTS: decree of June 29, 1941, 48 CONGREGATIONS, RELIGIOUS: of Orien­ tals, 70 CONJUGAL INTERCOURSE: 41 CONSANGUINITY: 64, 65, 69, 71 dispensation, implicit, 81 Illegitimate, 61 impediment, 112 legitimate, 61 multiple, 81, 114 CONSCIENCE, MARRIAGE OF: 196 CONSECRATION, EPISCOPAL: 139 CONSENT: conditional, 131 defects, 61, 209 definition, 126 duration, 132 expression, 129 free, 47 necessity, 126 quality, 127 questions for, 190 renewal, 209 CONSENSUS: meaning in assistance, 160 CONSENT OF OTHER RITE: marriage as­ sistance, 140 CONSTANTINOPLE, RITE OF: 20, 22, 33 cf. also Byzantine Rite CONVALIDATION OF MARRIAGE: 163, 208 confessor, 189 notion, 175 recording, 195 rite, 175 simple, 208 CONVENT ORATORY: marriage rite, 199 CONVERSION: formal, 175 implicit, 175 of infidels, 36 informal, 175 CONVERTS: transfer of rite, 36 COOPERATOR, VICAR: cf. Vicar Cooperator

COPTS: 20, 33, 163, 186 celibacy, 101 CORONATION:

191

COUSSA, CARDINAL ACACIUS: 17 CUMMULATIVE POWERS:

159

"CREBRAE ALLATAE": 17 begin of legal effects, 38 calendar, Gregorian, 38 extension and limits, 38 form, 134 obliges all Orientals, 38 general laws abolished, 38 particular laws abolished, 38 praeambula, contents, 37 CREDIBILITY: of parties, 174 of petitioners, 176 CRIME, IMPEDIMENT: 61, 69, 71, 111 adultery, 111 implicit dispensation, 82 CROATIA: 186 CROATS: 20, 23, 26, 187 banns, 53 celibacy, 102 "CUM EP1SCOPO": 183 CUSTOM: legal and assistance, 156 and impediments, 63 mixed rite marriages, 166 particular law, 121

DANGER OF DEATH: proofs, 46 prenuptial investigation, 46 proof of baptism, 51 DEACON: permanent, 85 DEATH: certificate, 90 danger, proof of baptism, 51 proof, of spouse, 89 danger, proofs, 46 presumptive, declaration, 89, 91 of spouse, witnesses, 90 DECLARATION, INTERPRETATION: 142 DECLARATION: change or rite, 36 administrative, of nullity, 151 tempore non suspecto, 49 DEGREES: of profession, 109 DELEGATE, APOSTOLIC: 172 DIACONATE: dispensation, 79 impediment, 104 DIGENEIA: 115, 116 Oriental dissidents, 118 DIRECTORY, OFFICIAL CATHOLIC: 149 DIRIMENT IMPEDIMENT: notion, 60, 88 DISCIPLINA, SANA: 121 DISCIPLINE: 20 canonical, 19 transfer between, 33 DISPARITY OF WORSHIP: 61, 91 banns, 54 dispensation, 93 latin rite ordinary, 93 extension, 92 change of rite of non-Catholics, 94 DISPENSATION: canonical cause, 69 concurrence of power, 80 danger of death, 76 different dioceses, 73 Oriental dissidents, 75, 92 from form, latin rite ordinary, 78 formal requirements, 83 implicit, 81 multiple impediments, 80 mixed rite marriage, 72 apostolic dispensation, 170

ordinary power, 65, 66 latin rite ordinary, 66, 81 delegation of power, 68 subdelegation, 73 recording, 194 rescript execution, 83 in urgency, 77 DISPENSATIVE DISSOLUTION: of non­ consummated marriage, 203 DISSIDENTS, ORIENTAL: species of affinity, 120 annulment of marriages, 39 baptism, 39, 50 confirmation, validity, 52 divorce granting, 39, 40, 111 divorce grounds, 203 jurisdiction, 39, 135 priest minister of matrimony, 135 dispensations, 92, 75 marriage ritual, 135 becoming Protestants, 95, 98 choice of rite, 34 sacrament of matrimony, 39 DIVINE LAW: positive, and marriage, 60 DIVINE LITURGY: nuptial, 193 DIVISIONS OF CHURCH: canonical, 19 DIVORCE: Oriental dissidents, 40, 39, 111, 203 DOCTRINE, CHRISTIAN: instruction, 47 DOCUMENTS: authenticity, 49 civil, 49, 90 ecclesiastical, 49 necessary for marriage, 57 preservation, 195 private - public, 49, 61 DOMICILE: 152, 163 DOMINICAN RITE: 20 DOUBT OF LAW: concerning marriage, 127 EFFECTS OF MARRIAGE: 200 ENDS OF MARRIAGE: 40 EPISCOPAL CONSECRATION: 139 ERROR IN CONSENT: 127 ERROR, COMMON: 150 ESTABLISHMENT OF IMPEDIMENTS: 62 ETHIOPIANS: 20, 33, 118, 125, 186 celibacy, 101 EXARCH, APOSTOLIC: 21, 152 EXCLUSION OF ESSENTIAL PARTS: 127 EXCLUSIVE JURISDICTION: places of, 140 EXCOMMUNICATION: for non-ecdesiastical marriage, 134 EXTENSIVE INTERPRETATION OF LAW: 142 EYEWITNESSES: 90 FACT: public, impediment, 61 FACULTY OF ASSISTANCE: 161, 162 FAVOR OF LAW: for marriage, 40 FEAR AND CONSENT: 127 direct and indirect, 128 FEE, CHANCERY: for dispensations, 83 FEDERATIONS, MONASTIC: 109 "FIDELIBUS RUTHENIS": 183 FIDELITY: oath, 129, 130, 191 FORM OF MARRIAGE: 61, 133 C.I.C. Form, 134, 187 curtailment of liturgical form, 191 defect, convalidation, 209

215

development stages, 182 dispensation, 69, 71, 138 extraordinary, 156, 173 liturgical blessing, 135 mixed marriages, 192 non-Catholic exemption, 175 obligation, 135 persons subject, 175 proxy marriage, 130 sanctions, legal, 134 United States Orientals, 183 FORBIDDEN TIMES: 198 FORCE: 127 FORUM: external, proof of impediments, 61 FRANCE: 24, 187, 188 FRANCISCANS OBSERVANTS: 108 FRANCISCANS CONVENTUALS: 108 FREEDOM: limitations, 173 baptism certificate as proof, 48, 53 unmarried persons, proof, 48 principles of proving, 46, 48 witnesses in proving, 49 FRENCH REVOLUTION: 106 FUNERAL: choice of church, 201 pastor competent, 201 GALICIA: 22, 174, 188 GASPARRI, CARDINAL PIETRO: 17 GERMANIC COMPUTATION OF RELATION* SHIPS: 112 GERMANY: 22, 187, 188 GLOSSARY OF TERMS: 18 GREAT BRITAIN: 23, 160, 187, 188 GREEKS: 23, 125, 118, 119, 186 GREEK-CATHOLIC: 28, 149 GREEK-RUTHENIAN: 28 GROOM: rite, 164 pastor of, 165 GROUPS IN CHURCH: 19 GODPARENTS and Godchild: 124 GOODS, TEMPORAL: 18 GUARANTEES: mixed marriages, 86 GUARDIANSHIP: 64, 71 impediment, 85, 125 HABIT, MONASTIC: 109 HAYDUDOROGH: 187 HEARSAY WITNESSES: 90 HENRY VIII, KING: 106 HERMITS: 109 HIERARCH: cf. also ORDINARY, definition, 66 power of dispensation, 67 of place, suppletory ordinary, 153 latin rite, dispensation in danger of death, 76 latin rite, dispensation in case of urgency, 77 HIERARCHY, ORIENTAL CATHOLIC: 21 HOLY COMMUNION: first, 56, 59 before marriage, 58 HOLY OFFICE: 39 HOLY SEE: legate, 79 recourse impossible, 78 HOUSE OF STUDIES: 109 HUNGARY: 188

216

HUNGARIANS: cf. also Magyars, 20, 187 HUSBAND'S STATUS: shared by wife, 200 IGNORANCE: 126, 150 ILLEGITIMATE CHILDREN: transfer of rite, 34 ILLEGITIMATE CONSANGUINITY: 61 IMPEDIMENTS, MATRIMONIAL: 60, 61 abrogation, 63 correlative, 72 custom, legal, 63 denunciation, 55 diriment, notion, 60, 64, 88 discovery, 57 dispensation, survey, 64 doubtful, 57 establishment, 62 impediment, cf. also prohibitive, 84 dispensation, implicit, 81 convalidation, implicit, 175 consanguinity, implicit dispensation, 81 minor, implicit dispensation, 82 inequal, 61 minor and major, 64 multiple, 80 notion, 57 occult, 61, 81 prohibitive, 60, 84 proving in external forum, 61 public, 57, 61, 81, 209 secret, 57 suspicion of, 53 unilateral, 61, 72 IMPOTENCE: 61, 88 INAVAILABILITY OF PASTOR: 156 INDEPENDENT MONASTERY: 109 INFIDELS: free in choice of rite, 36 INSTITUTES, RELIGIOUS: Oriental, 106 branches of latin institutes, 108 classes, 109 monastic, 109 INSTRUCTION: Christian Doctrine, 47 marriage law, faithful, 45 pre-marriage, 58 in rite, 201 INTERCOURSE, CONJUGAL: 41 INTERPELLATIONS: 204 INTERPRETATION: authoritative, 17, 18 declarative, 142 extensive, 142 INTERPRETER: 131 INTERRITUAL RELATIONSHIPS: 20 differences concerning consanguinity and affinity, 122 INVESTIGATION, PRENUPTIAL: information 56 ISLAM: 42 ITALIANS: 23, 53 ITALO-ALBANIANS: 185 JANSENIST ORDINATIONS: 104 JERUSALEM: 22 JESUITS: 108 JURISDICTION, dissidents, 39 suppletion for Oriental dissidents, Oriental dissidents, 135 episcopal, 139

76

place of exclusive jurisdiction, 140 analogy with faculty of assistance, 150 suppletory, of latin rite pastors, 154 multiple, 144, 153, 158 JURISDICTION, CANONICAL SUBDIVISION: 191 transfer between them, 34 JUST CAUSE: mixed rite marriages in bride's rite, 166, 169

KNOWLEDGE: concerning 126 KRIZHEVTSI: 186

marriage

ends,

LAPSED CATHOLICS: 87 LATIN RITE ORDINARY: cf. Ordinary, Latin rite, LATINITY OF CREBRAE ALLATAE: 17 LAW: divine, positive, 60 natural, 60 particular, 21, permitted inCrAII, 62 approval of Holy See for particular law, 122 mixed rite marriages and particular law, 169 unification of law, 21 LAW, MARRIAGE: instruction of faithful, 45 LEBANON, SYNOD: 163, 185 LEBANESE: 25 LEGATE OF HOLY SEE: 79 LEGITIMACY OF CHILDREN: 41 legitimate, definition, 111, 201 legitimation, 202 implicit legitimation, 81 LEMK1WSHCHYNA: 22 LENT: 198 LICENSE, MARRIAGE: recording, 195 LICENTIA: meaning, 160 LIGAMEN: 61, 88 LIMITS: patriarch's power of dispensation, 70 LITURGICAL BLESSING: nature, form, 136 LITURGY, DIVINE: nuptial, 193 LOCUS REGIT ACTUM: 137 LWIW: Armenian rite, 24, 184 Ukrainian Province, 186 LYONS: 20 MACEDONIANS: 23, 186 MAGYARS: cf. also HUNGARIANS, 23, 26, 53, 102 MAJORITY: in Law, 59 MALABARIANS: 20, 24, 33, 53, 101, 186 MALANKARIANS: 22, 33, 53 MARONITES: 20, 22, 33, 53, 185 MARRIAGE: attempted, 64 doubtfully valid, 40 effects, 200 ends, purposes, 40 legal favor, 40 form, 61, 133 invalid, public, 124 lawfulness, criteria, 61 license, probative value, 49 liturgical form, curtailment, 191 ministers, Orientals, 130

nature, 39 natural, non*sacramental, 40 outside church building, 193 permission of local Hierarch, 63 personal qualifications, 61 essential properties, 40 right to, 60 sacramental, 40 secret, 196 time, 197 validity, criteria, examination, 61 MARY TUDOR, QUEEN: 106 MATRIMONIUM: consummatum, 41 initiatum, 190 legitimum, 41, 111 putativum, 41 ratum et non*consummatum, 41, 82, 201 species seu figura, 151 MATRIMONY: Sacrament of, minister, 39 matter and form, 39 Oriental dissidents, 126 MELKITES: 20, 22, 25, 33, 118, 120, 163, 186 METROPOLITANS: 21 METUS CONSULTUS: 129 MINISTER OF MATRIMONY: Oriental dis­ sidents, 135 MINORS: Marriage of, 63, 88 objection of parents, 59 MIXED RELIGION: marriages, 61, 76, 86 banns, 54 liturgical form, 87, 192 guarantees, 86 pastor competent, 167 MIXED RITE MARRIAGES: assistance, 152 law, 167 lawful custom, 166 in rite of bride, dispensation, 170 dispensations from impediments, 72 just reason, 169, 166 pastor, 164, 168 unilateral impediments, 61 MONACHISM, ORIENTAL: 106 MONASTERY: 70 independent, 109 superior, 109 and local Hierarch, 109 MONASTIC FEDERATION: 109 MONASTIC HABIT: minor and major, 109 MONASTIC INSTITUTES: 109 MONASTIC STATE: 109 MONKS: 18, 108 MONTHLY SOJOURN: 163 MOZARABIC RITE: 20 MULTIPLE IMPEDIMENTS: dispensation, 80 MULTIPLE JURISDICTION: 144, 153, 158 MUNKACHEVO-UZHOROD: 186 NATURAL MARRIAGE: 40 NESTORIANS: 125 NE TEMERE: 105, 134, 181, 186 NONAGE: 61, 65, 69, 88 NON-CATHOLICS: exempt from form, 175 marriage intention, 40 free in choice of rite, 97 NON-CONSUMMATED MARRIAGE: dispen­ sative dissolution, 203

217

NOTIFICATION: of ordinary of dispensation, 79 NOVITIATE: 109, 110 NULLITY: administrative declaration, 151

OATH: of fidelity, 129, 130, 191 OCCULT CASE: 78 OFFICE, DIVINE: 109 OFFICE, HOLY: 39 OFFICIAL CATHOLIC DIRECTORY: 149 OLD-RITUALISTS (Staroviertsi): 94 OPINION CONCERNING VALIDITY OF MARRIAGE: 127, 188 ORATORY, CONVENT OF NUNS, marriage rite, 199 ORDERS, HOLY or SACRED: 61, 99 ordination in different rite, 104 Oriental dissidents, 105 ordination by dissident bishop, 104 ORDERS, RELIGIOUS, ORIENTAL: 70, 107 ORIENTAL REGION: 153 PARENTS: obligation towards children, 201 PARISHES: Oriental, national, 43 cummulative, 159 Oriental vs. Latin rite, 142 PASTOR, appointment, 139 assistance at marriage, 139 of baptism, notification of transfer of rite, 36 censured, 149 dispensation power, 76, 77 inavailability of, 156 lawful assistance, 164 mixed marriages, competence, 167 mixed rite marriages, competence, 164, 168 non-subjects and marriage assistance, 142 Oriental Catholics without their own, 152 suppletory, 154 territorial, 158, 159 PATRIARCH: 21, 62, 152, 158 power of dispensation, 69, 81 concurrence, 80 personal statutes, 43 sanatio in radice, 211 stauropegia, 109 PATRIARCHAL DIOCESE: 21 PATRIARCHAL VICARS: 21 PATRIARCHATES: transfer between, 33 outside of, 152 PATERNITY, PRESUMPTIVE: 201 PAULINE PRIVILEGE: 203 PENANCE, SACRAMENT OF: 58 PEREGRINS and dispensations, 68 PEREMYSHL: 186 PERSONAL STATUTES: 42 PERSONS, LAW ON: 18 PERSONS: subject to marriage form, 175 PETRINE PRIVILEGE: 204 PHILADELPHIA: 19 PHILADELPHIA STATUTES: 7 PITTSBURGH: 19, 154, 158, 165 PLACE OF ASSISTANCE: 140, 199 PLACE OF LITURGICAL RITE: 191 POSSESSION, TAKING: 139 "POSTQUAM APOSTOLICIS": 18, 107

218

POSTULANCY: 109 POWERS, CUMMULATIVE: 159 PRELATES: 66 PRELATURES: 202 PRE-MARRIAGE INSTRUCTION: 58 PRE-NUPTIAL INVESTIGATION: 46, 167 information, 56 obligation of pastor, 47 rite, 46 rules of Hierarch, 48 PRESBYTERATE, dispensation, 76, 85, 106 PRESERVATION OF DOCUMENTS: 195 PRESHOV: 186 PRESUMPTIVE DEATH, DECLARATION OF: 82 PRIEST: administerng confirmation, 52 apostate, assistance at marriage, 147, 149 capable of being delegated, 161 Catholic as civil marriage official, 86 invalid marriage of, 105 PRIVATE VOWS: 61 PRIVILEGE OF THE FAITH: 98, 204 PRIVILEGED WEEKS: 199 PROFESSION, RELIGIOUS: 61 degrees, 109 impediment, 106 perpetual, 109 Oriental dissidents, 110 solemn, 109 temporary, 109, 110 PROHIBITIVE IMPEDIMENTS: 60, 84 PROPERTIES, ESSENTIAL, OF MARRIAGE: 40 PROPERTY, TEMPORAL: 18 PROTESTANTS: baptized, and Latin rite pastor, 146 and Catholic rites, 93 choice of rite, 35 non-baptized, 96 becoming Oriental dissidents, 95, 98 Oriental dissidents becoming Protestants, 95,98 PROVINCES ECCLESIASTICAL: of Orientals, 21 PROXY, MARRIAGE BY: 129, 130 PUBERTY, LEGAL: 34 PUBLICI1Y: various notions, 61 PUBLIC PROPRIETY: 61, 64, 65, 71, 124 PUERTO RICO: 86 PUTATIVE MARRIAGE: 41, 201

QUASI-DOMICILE: 163 QUESTIONING OF NUPTURIENTS: 47 QUI POTEST MAIUS POTEST ETIAM MINUS: 138 QUINQUENNIAL FACULTIES: 66 RATUM ET NON-CONSUMMATUM MAR­ RIAGE: 41, 82, 201 RECORDING: in baptismal register, of mar­ riage, 194 of convalidation, 195 RECOURSE TO THE HOLY SEE: impossible, 78 RECTOR OF INSTITUTION: consent to mar­ riage assistance, 141 REDEMPTORISTS: 108 REGION, ORIENTAL: 153 RELIGIOUS, ORIENTAL: characteristics, 106 Law on, 18

RELIGIOUS ORDERS, ORIENTAL: 70 RELIGIOUS INSTITUTES, ORIENTAL: 106 Latin rite, branches of Oriental rite, 108 classes of members, 109 RELATIONSHIP, COMPUTATION: 112 RE-MARRIAGE: 212 RESCRIPT OF DISPENSATION: execution, 83 RIGHT TO MARRIAGE: 60 RIGHTS OF SPOUSES, MUTUAL: 200 RITE: definition, notion, 19, 20, 72, 84, 165 canonical, 19 change of, cf.transfer of rite, 20, 36 freedom of choice, 96 autonomous, 19, 20 choice of rite, Oriental dissidents, 34 choice of rite, infidels, 36 instruction in rite, 201 liturgical rites, 19, 20 liturgical of marriage, 190 number, 33, 21 original, 20 outside Church, 92 return to that of ancestors, 35 return to former, 33 transfer in general, 20, 33 declaration of acceptance, 36 time of legal effect, 36 between parishes of different juris­ dictions, 33 between patriarchates, 33 legal puberty, 34 recording, 36 requirements, 36 validity, 33 reception of sacraments in another rite, 33 subdivisions, 19, 20 wife, transfer, 34 RITUAL, MARRIAGE: Oriental dissidents, 135 Ruthenians, 193 RITUS, MODO SINT SUI: 142 ROMAN COMPUTATION OF RELATIONSHIP: 112 ROMANIA: 188 ROMANIANS: 23, 26, 33, 53, 102, 118, 120, 186 ROMAN RITE: 20 RUSINES: 187 RUSSIANS: 23, 53, 118, 119, 125, 181, 186 RUSSIAN DISSIDENT CHURCH: 147, 149 RUTHENIANS: 19, 20, 22, 26, 28, 53, 73, 121, 147, 153, 166, 187, 188 celibacy 102 jurisdictions, reciprocal separation, 165 marriage form, 183 SACRAMENT OF MATRIMONY: minister, 39 Oriental dissidents, essence of, 126 matter and form, 39 SACRAMENTAL MARRIAGE: 40 SACRAMENTS OF PENANCE AND HOLY EUCHARIST, 58 SACRAMENTS, S. CONGREGATION OF: Decree of June 29, 1941, 48 SANA DISCIPLINA: 121 SANATIO IN RADICE: 105, 138, 149, 211

SACRED PENITENTIARY, 80 SCANDAL: 210 SCHEME, MONASTIC: 109 SEMINARY ORATORY: marriage rite, 199 SEPARATION OF THE SPOUSES, 202 adultery, reason, 207 permanent, temporary, 206 SERBS: 28 "SINGLE": meaning, 49 SINNERS, PUBLIC: and marriages, 87 SLOVAKIA: 188 SLOVAKS: 26, 187 "SOLLICITUDINEM NOSTRAM": 18 SOVIET MARRIAGES: 173 SOUTH AMERICA: 188 SPAIN: 188 SPECIES SEU FIGURA MATRIMONII: 151 SPIRITUAL RELATIONSHIP: 64, 65 conditional baptism, 124 confirmation, 125 impediment, 124 SPOUSES, RIGHTS, MUTUAL: 200 separation, 202 STABILITAS LOCI: 107 STANISLAVIW: 186 STAROVIERTSY (Old-Ritualists): 94 STATE AND MARRIAGE: 42 STAUROPEGIA: 109 STERILITY: 88 STOLE FEE: 164, 166 STUDIES, HOUSE OF: 109 SUBCARPATHIA: 20, 22 SUBDEACON, PERMANENT: 85 SUBDELEGATION OF ASSISTANCE FACULTY: 161, 162 of power of dispensation, 73 SUBDIACONATE: 79, 84, 101 SUBJECTS AND DISPENSATIONS: 67 SUCCEEDING MARRIAGES: 212 SUMMARY TRIAL: 151 SUPERVENIENT SPIRITUAL RELATIONSHIP: 125 SUPPLETION OF JURISDICTION: to Latin rite pastor, 154 to Oriental dissidents, 76 SUPREME AUTHORITY OF CHURCH: 62 SYNCELLUS: 68, 160 SYNOD, PATRIARCHAL: 62 SYRIANS: 22, 25, 33, 101, 186, 202 SYRIAN JACOBITES: 125 TAMETSI: 134, 186 TELEGRAPH: 77 TELEPHONE: 78 TEMPORAL GOODS: 18 TERMINOLOGY: canonistic, 17, 18 of rites, 25 of marriage law, 41 TERRITORIAL LIMITS: 140 of parishes, 159 TERRITORIAL PASTOR: 158 TERRITORY OF ORIENTAL RITE: 152, 153 TESTIMONY: of trustworthy persons, 61 of witnesses, value, 50 TIMES, FORBIDDEN: 198 TITLE: of jurisdiction, 150

219

TRANSFER OF RITE: 20, 36 between rites and disciplines, 33 baptismal register, recording, 36 between groups of Byzantine rite, 33 of children, 34 recording of converts, 36 between purisdiction, 34 TREBNYK: 193 TRIAL, FORMAL: 151 TRIGENEIA: 118, 120 UKRAINE: 22, 186, 174 UKRAINIANS: 20, 22, 26, 27, 73, 125, 153, 160, 166, 188 affinity, 121, 122 bishops, 188 celibacy, 102 clergy and celibacy in North America, 103 marriage form, 183 immigration to American continent, 48 lurisdictions, separation, 165 UNILATERAL IMPEDIMENT: 61, 72 UNITED STATES OF AMERICA: 188 Byzantine rite bishops, 22 Oriental clergy, 102 marriage form for Oriental Catholics, 183 Oriental rite Catholic parishes, 24 URGENCY: dispensations in case of, 77 USHERS: at wedding, 59

220

VAGI: 58, 67, 152, 163 VALIDITY OF MARRIAGE: criteria, 61 examination, 61 opinion concerning, 127, 188 presumption, 40, 91 VETO OF MARRIAGE: 63 VICAR COOPERATOR: 76, 79, 161 VICAR GENERAL: 159 VIRGINITY, VOW OF: 84 VOW: of perfect chastity, 84, 106 private, 61 religious, dispensation, 79 simple, 84 virginity, 84

WESTERN UKRAINE: 188 WIDOWED PERSONES: proof of freedom, 89 WIFE: shares status of husband, 200 WITNESSES: authorized, 139 personal conviction, 49 qualified, 61 testimony, value of, 50 YUGOSLAVIA: 23, 186, 188 ZAMOST, SYNOD OF: 186

BY THE SAME AUTHOR:

CODE OF ORIENTAL CANON LAW

THE LAW ON PERSONS EASTERN RITES PERSONS IN GENERAL CLERGY AND HIERARCHY MONKS AND RELIGIOUS

LAITY INTERRITUAL CANON LAW PROBLEMS

ENGLISH TRANSLATION AND

DIFFERENTIAL COMMENTARY By

VICTOR J. POSPISHIL J.C.D., Sc.Eccl.Orient.L.

Archeparchy of Philadelphia ST. MARY’S UKRAINIAN CATHOLIC CHURCH FORD CITY, PA.

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