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Nullity Of Marriage Due To Lack of Canonical Form

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In our previous discussions on the nullity of marriages, we pointed out that, there  are three major grounds on which it can be challenged. These are: The presence of diriment impediments, the lack of canonical form and lack of valid consent (psychological ground). Lack of canonical form has been enshrined in Church’s legislation as a ground for annulment right from the Council of Trent (1545-1563). The reason for this ground of annulment was to avoid clandestine and undocumented marriages, which were very rampant at the era preceding the Council of Trent. Consequently, only those marriages celebrated in the eyes of the Church are regarded as valid. Following the Conciliar codification of this in the 1917 Code of Canon Law, the 1983 code substantially repeated the earlier legislation by enshrining in can. 1108, par.1: “Only those marriages are valid which are contracted in the presence of the local Ordinary or parish priest or of a priest or deacon delegated by either of them, who, in the presence of two witnesses, assists in accordance with the rules set out in the following canons, and without prejudice to the exceptions mentioned in canons 144, 1112, par.1, 1116 and 1127, par.2 &3. This presented canon must be interpreted in the light of incapacitating and invalidating laws in can.10. Consequently, the negligence of the prescription of the required canonical form for marriage is tantamount to nullity of marriage. This nullity is automatic because it touches the substantial element of marriage. Canonical form therefore means the declaration of marital consent by two parties before authorized person who act “in nomine ecclesia” (in the name of the Church). The proper official witnesses for marriage includes the local Ordinary which is a generic title including diocesan Bishops (can.381), and all those equiparated to him by law: territorial prelate (can. 381, par.2, 368, 370), territorial abbot (cann. 381 par.2, 368, 370), Vicar Apostolic, Apostolic Prefect, and Apostolic Administrator (cann. 368, 381 par.2, 371 par.2). Pro Vicar in a vicariate, Pro-Prefect in a prefecture or Pro-Superior in a mission sui iuris (cf. can. 420) are also proper assistants for marriages.  It also includes all those mentioned in can. 134 par.2, that is, all those who have general ordinary executive power in the Church, including Vicars General (cann. 475, 479) and Episcopal Vicars (cf. cann.476, 479 par.2, 134) and parish priest of the parties to marriage (can. 519). Parish priest is to be reckoned in the light of acquisition of domicile or quasi domicile as encoded in can. 102. It is remarkable to note that the concept of proper official assistants or witnesses for marriage in the light of canonical form covers also a coadjutor Bishop who by virtue of the law itself must be appointed a vicar General and is therefore a local Ordinary (cann. 406,par.1; 134); auxiliary Bishop who by virtue of the law itself is to be appointed a Vicar General or at least an Episcopal Vicar (cf. can. 406, par.2). Other bishops other than diocesan Bishops and coadjutor and auxiliary bishops including Cardinals who are titular bishops are not proper witnesses of marriage and as such must have delegation from either a local Ordinary or the parish priest for a valid canonical form for marriage. Even Cardinals who have titular Churches in Rome have no proper power to assist at marriages in their titular churches without the delegation of either the local Ordinary or the pastor of the Church (cf. can. 357). Furthermore, both Cardinals who are diocesan Bishops and the titular bishops need delegation from the local Ordinary or parish priest, in order to validly assist at marriages outside their dioceses. In the same way, Papal legates, nuncios, pro-nuncios, inter-nuncios, Apostolic legates and papal envoys, as such, have no authority to assist at marriages within their areas of jurisdiction not even in the chapel of the Nunciature except with the proper delegation of the local Ordinary or the parish priest of the ecclesiastical circumscription (cf. can.366, no.1). The metropolitan Archbishop has no proper power to assist at marriages in the suffragan dioceses under his see without the delegation from the local Ordinary or the parish priest (cf. can. 436).

Apart from the parish priest, who is the proper official assistant at marriages, a priest in charge of a quasi-parish may be given faculty to assist at marriages if his church is a recognized place of celebration of marriage. Each priest member of a team parish, that is, a parish entrusted to a team of priests as pastors under the care of a moderator, has proper power to assist at marriages since the pastoral care of the place has been jointly entrusted to their care (cf. cann. 517, par.1; 543). A parish entrusted to the care of a deacon as its proper administrator, means that the deacon administrator is equipped with all the faculties to administer the Church except the care of souls (cf. can.150). Therefore, the deacon administrator has a proper power to assist at marriages at that Church. A parochial administrator during the vacancy of the parish (cf. can. 539; 540) equally has proper power to assist at marriages, so also a priest who takes charge of a parish until the administrator is appointed (cf. can. 541). A priest who is on relief duty during the vacation or absence of a pastor has a proper power to assist at marriages (cf. cann. 533 par.3; 541, 549). Parish priests of personal parishes in the light of can. 518, may acquire proper power over marriages of the members of their personal parishes, however, if one of the parties to the marriage belongs to territorial parish, priority of proper witness goes to the parish priest of a territorial parish. This is because the competency of the official witness at marriages goes along line with the acquisition of domicility and quasi-domicility and ipso facto entails residence and territoriality.

Rectors of churches ipso iure, do not have authority to assist at marriages. By rectors of churches we mean priests who are entrusted to non-parochial churches, shrines and chapels. If marriages are to take place in churches places of worship that are fully constituted parochial churches like university, seminary, shrine, oratory etc, the rector must have the necessary delegation either from the local Ordinary or the parish priest (cf. can. 558). Chaplains in charge of chaplaincies do not have proper power to conduct marriages in their chaplaincies without due delegation from the proper assistants at marriages (can.566). In the same way, rectors of seminaries do not have authority over marriages neither is a seminary a place of celebration of marriage (cf. can. 262). Parochial vicars do not have proper authority over marriages, unless, the diocesan Bishop grants them a general faculty in their parishes of ministry or a parish priest may grant a general faculty to his parochial Vicar or deacon to assist at marriages in his parish (cf.can. 1111). Among the seven functions especially entrusted to the parish priest as enshrined in can. 530; is the assistance at marriages and the nuptial blessing (Can. 530, no.4). In the event of scarcity of priests and deacons, the diocesan Bishop can delegate lay persons (including religious men and women) to assist at marriages, if the Episcopal Conference has given its prior approval and the permission of the Holy See obtained (cf. can. 1112). Another important dimension of the canonical form is the presence of two other official witnesses. The validity of canonical form entails the simultaneous and physical presence of both the official assistant and the two official witnesses. These witnesses may be men or women, Christians, Muslims or pagans. What is required is their ability to be present and to testify that marriage took place. Consequently, minors and all those who lack habitual use of reason, including those under drugs or alcoholic intoxication are not qualified as witnesses of marriage. In the same way, those who are physically impeded like the blind and the deaf and dumb are not qualified to act as official witnesses. In Nigeria, the role of official witnesses has been more or less corroded by the practice of marriage sponsors. Unfortunately, some of these sponsors do not carry out their witnessing role, as they are seldom present in the Church at the time of exchange of consent. By way of a better pastoral solution, it might be better to have different people as sponsors with more or less, social role while two people who are actually present at the time of the exchange of consent and who are so to say, eye witnesses, should be chosen spontaneously from the congregation to sign in as the official witnesses. Consequently, it is canonical absurd and theologically untenable to allow the so called marriage sponsors who are present at the exchange of consent to sign in their names in the marriage annotations as official witnesses

Author: Rev. Fr. Don Steve Nnagha


Written by Erineus

May 8, 2011 at 1:04 pm