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ON THE CANONICAL FORM OF MARRIAGE

ON THE CANONICAL FORM OF MARRIAGE

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by June 28, 2018 Seminar Papers

ON THE CANONICAL FORM OF MARRIAGE

IGOH Johnson

NCCF: Seminar, June 2018

 

The marriage between two baptized is a sacrament (see Canon 1055 § 2). Ordinarily, it is consent that makes marriage. Nevertheless, for Catholics, there are positive ecclesiastical laws that prescribe a certain external formality to be observed for its validity[1]. Indeed, the valid constitution of a canonical marriage essentially comprises three conditions established in canon 1057 § 1 of the Code of Canon Law currently in force. These conditions are: the consent of the parties, the legal and canonical ability and the legitimate manifestation of consent[2]. It is the latter that implies the obligation of the canonical form.

This piece is more of a theoretical presentation of the canonical form of marriage. It shall be divided into three parts. The first shall concern its historical evolution. The second shall be an exposé of the canonical form according to the 1983 code of Canon Law. The third shall be an introduction of the discussion on its practical application especially in Nigeria. To this end, this last part of the exercise shall be a collegial effort of the honorable members of this family. In other words, the fruits of our discussion shall be used to complete the third part of this work.

Part I: Notion and History

The notion of Canonical form

The expression forma canonica is defined as the formalities prescribed by canon law for certain legal or administrative acts[3]. The form of marriage in general includes all the formalities required for the expression of consent[4]. The canonical form is therefore the set of formalities required by canon law for the valid celebration of marriage. It consists of solemnities required for the Church to recognize that marriage is valid[5] according to Canon 1108 § 1. This implies that when a Catholic party (baptized or received in the Church) marries another Catholic or non-Catholic (baptized or not), the marriage will be contracted with the assistance of a minister authorized by the Church (the local Ordinary, the parish priest or another priest or deacon delegated by one of them) in the presence of two witnesses.

The canonical form is distinguished from the liturgical form. «The liturgical form consists in those rites required to ensure that the celebration adequately expresses ‘the mystery of the unity and fruitful love between Christ and the Church’ in which the spouses share…»[6] (cf. Canon 1063 3˚). These are the rites and ceremonies that accompany the exchange of consent (cf. cannons 1119-1120). While the canonical form is required ad validitatem, the liturgical form is not; but it is only required ad liceitatem. Thus, while the liturgical form is concretely understood in rites and ceremonies that accompany the exchange of consent, the canonical form, on the other hand, consists of legal formalities, without which the marriage is invalid.

Brief history

The history of the canonical form can in no way be dissociated from the general evolution of marriage in the Church. In the early centuries of Church history, there is no trace of a religious or ecclesiastical form of marriage neither are there traces of an ecclesiastical marriage ceremony[7]. Obviously, as there were no clear laws on marriage in the Church, the Christians of the first centuries adopted the law and traditional customs of marriage, those that prevailed in societies (especially Roman) to which they belonged. Nevertheless, the ancient Church exhorted that the matrimonial alliance should be done in facie Ecclesiae[8], that is to say, public, and this necessitated the intervention of the clergy. According to Tertullian (c.160 – c.225) Christians had asked for the presence of their clergy in the celebration of their marriage and were satisfied (Ad Uxorem) that a priestly blessing turned an act of sin into a sanctified act[9]. For him, marriages that are not publicly celebrated before the Church risk being regarded as adulteries or fornications[10]. Pope Innocent I (401-417) seemed to confirm the importance of the priestly blessing of marriage when he indicated that the blessing given to the married couple by the priest is the respect of a law long established by God[11].

However, it could be noted that at the time, the absence of the clergy did not prevent the valid celebration of marriage, according to several authors[12]. It was a simple recommendation that was not adopted by all. In fact, while in the East, the priest was regarded as minister of the sacrament, in the West, it is the two parties of the marriage that were considered as the ministers of marriage; it did not require the presence of priests or witnesses[13]. This is why several marriages were contracted non in facie ecclesiae, without any solemn blessing. These were called “clandestine marriages” accepted by the Church as valid for a long time.

This question of clandestine marriage posed many problems to the Christian communities of the Middle Ages[14]. So, to find a solution, the church developed standards against clandestine marriage. The Lateran Council IV, in 1215, for example, insisted on the publication of marriage banns of the future spouses before its celebration[15]. This task was entrusted to the pastors, (the Bishop or the Curé -Parish Priest); it shows that they are the competent authorities who approve marriage in their dioceses or parishes. It was also to prohibit the faithful from entering into a marriage without the possibility of proving it in the external forum. This is practically what led to the solemn fixing of the canonical form during the Council of Trent. It was the Council’s decree “Tametsi” that prohibited clandestine marriages[16]. In practice, the decree did not absolutely give binding force to the observation of the canonical form. It was much later in 1907 that Pope Pius X in his decree “Ne Temere” made the canonical form obligatory and was inserted into the 1917 code (cf. cann. 1094-1097).

PART II: EXPOSÉ OF THE CANONICAL FORM

The elements of the canonical form

The form of the celebration of marriage is found in chapter V, title VII of the first part of book IV: “The sanctifying function of the Church” and it covers canons 1108-1123. The elements of the canonical form are given in canon 1108 § 1:

Only those marriages are valid which are contracted before the local ordinary, pastor, or a priest or deacon delegated by either of them, who assist, and before two witnesses according to the rules expressed in the following canons and without prejudice to the exceptions mentioned in cann. ⇒ 144, ⇒ 1112, §1, ⇒ 1116, and ⇒ 1127, §§1-2.

In fact, in the formulation of this canon, which essentially reproduces canon 1094 of the 1917 code, we can distinguish two canonical forms of marriage: the ordinary canonical form, and the extraordinary form.

The ordinary canonical form

The ordinary canonical form contains two constitutive elements: the marriage is to be contracted before the testis qualificatus (the qualified or authorized witness) and in front of two witnesses.

  1. Before the testis qualificatus

According to the fundamental principle formulated in canon 1108 – § 1, for validity, the marriage is to be contracted before the testis qualificatus. The testis qualificatus is the person who must request the manifestation of the consent of the marriage contractors and receive it on behalf of the Church. This person enjoys the role of the ‘Marriage Assistant’. For that, we can distinguish the testis qualificatus with ordinary faculty and the testis qualificatus with delegated faculty.

  1. The testis qualificatus with ordinary faculty

They are ecclesiastics whose competence are linked to the office by the law itself. According to canon 1108 – § 1, the testis qualificatus with the ordinary faculty includes the local Ordinary or the pastor (parish priest). That’s why Canon 1109 specifies that these persons by virtue of their office and within the confines of their territory assist validly at marriages provided that one of the parties to the marriage is of the Latin rite.

  1. Local Ordinary

According to canon 134 §1,2, Local ordinaries include the Roman Pontiff, diocesan bishops and others who, even if only temporarily, are placed over some particular church or a community equivalent to it according to the norm of can. 368 as well as those who possess general ordinary executive power in them, namely, vicars general and episcopal vicars. Apart from these, it is also possible to add other Ordinaries which have strictly personal and non-territorial competencies, such as prelates at the head of the particular Churches erected according to rite, language, nationality, subject matter or any other reason in the judgment of the supreme authority (cf cann. 372 § 2, 1110), like the Military Ordinaries.

However, this list does not include cardinals even in their titular churches in Rome (cf. Can. 357). In fact, outside of their dioceses where they govern as bishop, the cardinals must have a delegation of the local Ordinary or the parish priest to be able to validly assist at marriages[17]. In the same way, the legates of the Roman Pontiff and the apostolic nuncios do not have the jurisdiction to assist at marriages even in the chapel of the Nunciature. The same also goes for the Metropolitan who cannot assist at marriages in his suffragan dioceses (cf. can 436). Even the bishop who wants to assist at the marriage of their own subject outside his diocese must obtain the delegation of the local Ordinary or the parish priest.

  1. The pastor (parish priest)

By “pastor”, according to Canon 519, we understand the priest to whom is entrusted the pastoral charge of a parish as its proper pastor, under the authority of the diocesan bishop[18]. Like the local Ordinary, the parish priest has the ordinary faculty of assisting at marriages (cf. can. 530-4). Also equipped with the same faculty of the pastor are the following:

  • The personal parish priest, that is to say a priest who is entrusted with a personal jurisdiction as a parish priest (can 1110)[19] like the military chaplain. Such jurisdiction is not territorial but personal, that is to a defined group of people.
  • The priest who is entrusted with a quasi-parish as its own proper pastor (can. 516 § 1). A quasi-parish is a definite community of the Christian faithful in a particular church, not yet erected as a parish because of particular circumstances.
  • The Parish Administrator, that is to say a priest entrusted with the pastoral charge when the parish is vacant or the parish priest is prevented from exercising his office (can. 539, 540 § 1).
  • The Parish Vicar or the priest who will take over the parish government before the appointment of the Parish Administrator when the parish becomes vacant or the parish priest is prevented from exercising his pastoral office (cann. 541 § 1, 533 § 3, 549)
  • Priests entrusted with the pastoral charge in solidum (cann. 543 § 1, 517 § 1).

All of these have ordinary faculties to assist at marriages. But the Rectors of Churches (cf. can. 558), the Chaplains and even the Parish Vicars are excluded from this ordinary faculty[20] unless particular law or special law provides otherwise as in the case of the special law of the Military Ordinariate which extends to the chaplains of the military to assist at the marriages of persons entrusted to it.

In general, the faculty of the local Ordinary and the parish priest to validly assist at marriages is based on certain conditions:

  • They must have been duly appointed and currently in office (cf. can. 147);
  • They must not have been inflicted with penalties of declared excommunication, suspension or prohibition or a judicial sentence or an administrative decree (cf. cann. 1109, 1331-1335);
  • They must act in the area of ​​their competence, that is to say in their own territory if the Ordinary or the Pastor is territorial and only for their subjects if it is personal (cf. cann. 1109-1110);
  • They must not have lost their office according to the law (cf. can. 184).
  • At least one of the contractors must belong to the Latin Church “because if they both belong to an Eastern Catholic Church, the norms specific to these churches will be applied”[21].
  1. The testis qualificatus with delegated faculty

Apart from the Local Ordinary and the parish priest, who have the ordinary faculty of assisting at marriages, canon 1108 § 1 indicates other persons who have delegated faculty, that is to say, not linked to the office but to the person[22] giving the delegation. It is a question of any priest or deacon delegated by the local Ordinary or by the parish priest who has the faculty ab homine to delegate[23]. This delegation may be general (if it is given for all marriages in a given territory or sector as a whole) or special (if it is given for a particular marriage or for a certain number of specified marriages, as particular acts) [24] (cf. cann. 137 § 1, 1111 § 2). However, there are conditions to validly delegate this faculty:

  • It must be given expressly to specific persons;
  • It must be given for a particular marriage if it is a special delegation;
  • It must be given in writing, if it is a general delegation.

These three conditions are necessary for validity.

  • Exceptional case of the delegation of a lay person

In addition to priests and deacons who may be delegated to assist at marriages, Canon 1112 provides for the exceptional case of the delegation of a layperson, that is to say a man or woman who is not cleric or sacred minister (cf. can. 207 § 1), to assist at marriages. This also have specific conditions attached to it:

  • The faculty of delegating a lay person must be requested by the diocesan bishop from the Holy See;
  • The voto favorabili of the episcopal conference must be requested by the diocesan bishop;
  • Once this faculty is given, only the diocesan bishop (obviously with his legal equivalents- cf. can. 134 § 3) can delegate this faculty to a layman to assist at marriage; other ordinaries cannot.
  • Delegation should be given only in territories where there is no priest or deacon.

The criteria for the choice of the lay person to assist at marriages are given in § 2 of Canon 1112: to a lay person, capable of giving training to the future spouses and able to perform properly the liturgy of marriage. It seems that these criteria are only for lawfulness not for validity. This delegation can also be special or general.

In general, the delegation follows the norms of delegated authority as specified in canons 137 and 142. Thus, priests and deacons who have received the general delegation to assist at marriages in a given territory or sector may subdelegate to other priests or deacons for specified marriages within the limits of the competence of the delegation received. However, those who have received a special delegation cannot sub-delegate unless they have received the express permission of the first delegate[25]. This last prohibition applies to the lay person even if he has received a general delegation. In fact, even the Bishop cannot give him permission to subdelegate his delegation because it is not only a faculty conceded in exceptional circumstances, but also a faculty strictly personal[26].

  1. Ecclesia supplet in case of error or doubt

The provision of Canon 1108 § 1 refers to Canon 144 § 1, which states that “In factual or legal common error and in positive and probable doubt of law or of fact, the Church supplies executive power of governance for both the external and internal forum”. Even though the faculty of assisting at marriages is not an act of jurisdictional power as such but a sacred function exercised in the name of the Church[27], the legislator intended that this suppliance of the Church should be applied as well to the canonical form of marriage. Common error is a wrong judgment of the community. It consists in considering that a person who actually has not the faculty of assisting at marriages is actually provided with this faculty[28]. It is called “factual error” when it is obvious for all the faithful of a community or at least the vast majority of them. “Legal error”, on the other hand, has come to light when circumstances of a public nature lead the community to believe that the marriage assistant is competent, while he is not. In both cases, ecclesia supplet.

There is also the case of doubt that is either positive or probable of fact or of law. While the error was made at the level of the community, doubt concerns exclusively the qualified witness who doubt his competence. It is positive when there is a good reason to doubt its competence but which does not give certainty. It is probable when the reasons are serious. It is of law when it concerns the existence of the law itself or its interpretation, its content, its extension, etc. It is of fact when it deals with a concrete fact, a particular circumstance, etc. If all these conditions are present, the marriage is valid and lawful, because ecclesia supplet.

  1. The role of the qualified witness

The role of the testis qualificatus under the heading of the marriage assistant is specified in § 2 of Canon 1108. It is the person who must ask for “the manifestation of the consent of the contractors and receive it in the name of the Church”. It fulfills an active function: it must be solicited from the parties (under pain of invalidity) the external manifestation of their matrimonial consent and receive it in the name of the Church. That’s why he must be present. It should also be noted that the marriage assistant must not be compelled to attend the marriage by force or serious fear because, for the validity, his assistance must be free, that is to say, without coercion. by force or fear[29].

  1. The witnesses

In addition to the presence of testis qualificatus, the canonical form also requires the presence of two witnesses for the validity of the marriage. By “witness” we understand “in general, a person, being present, sees or perceives something personally. Whoever testifies to what he has seen, heard, or otherwise has witnessed[30]. The two witnesses mentioned in Canon 1108 § 2 are not to be confused with the sponsors of baptism or confirmation of canons 874 and 893 § 1, in which the criteria for choosing them are well defined. On the contrary, the two witnesses of the canonical form that a French commentary describes as “common witnesses”[31] have no criteria for choosing them. It will therefore be necessary to refer to doctrinal and jurisprudential criteria “according to which the use of reason and the capacity of sensory perception of the marriage in which they attend are sufficient”[32].

Thus, the two witnesses, a man and a woman by an immemorial custom, baptized or not, married or not, are not required to do a specific activity. Nevertheless, they must be present physically and morally to the manifestation of simultaneous consent with that of the qualified witness; this requirement is also ad validitatem of the marriage. They must have the use of reason and sufficient discernment to know, to understand and able to testify that the marriage took place. This is why minors under fourteen and the feeble of spirit, as stated in Canon 1550 § 1, are excluded from testifying[33].

The extraordinary canonical form

If the person who is competent to assist at a marriage according to the law cannot be present, a so-called “extraordinary” form is provided for in the canon law at least since the code of 1917 (cf. cann. 1098). This form gives the possibility, under certain conditions, to validly celebrate a marriage without respecting all the elements of the canonical form. This possibility is confirmed in canon 1116 of the current code which indicates that a true marriage can be validly and lawfully contracted in front of witnesses only under certain conditions:

Two essential conditions are to be verified for an application of the extraordinary canonical form in the celebration of marriage. The first condition is an objective condition which is the impossibility of having or going to find, without serious inconvenience, a competent assistant according to law. The second condition is a subjective condition which is the will of the contracting parties to enter into a true marriage (cf. can. 1116 § 1).

As regards the first condition, that is to say, the impossibility of having or going to find the assistant, two situations occur:

  1. In danger of death: the danger of death (periculum mortis) can arise from an intrinsic cause such as disease or an extrinsic cause such as war. In both circumstances, articulum mortis, that is, imminent death is not required[34]. What is required is either the absolute impossibility or the moral impossibility of having now a qualified witness without serious inconvenience (such as a dangerous trip during the time of war, persecution, floods, fear civil penalty). This impossibility can be physical or moral[35].
  2. Apart from the danger of death, the legislator indicates that in addition to the absolute or moral impossibility of having a qualified witness at present, it is foreseen with caution that this situation will last one month. This requires moral certainty based on common knowledge or research that the qualified witness is not available or accessible for one month[36].

With regard to the second so-called ‘subjective’ condition, the willingness of the contracting parties to enter into a true marriage is absolutely necessary for the validity of the marriage. This desire to enter into a true marriage implies that the marriage would have the same ecclesiastical effects. It is not even necessary that the contractors know that there is an extraordinary form of marriage, their willingness to enter into a real marriage is sufficient[37]. Therefore, with the only witnesses, (without the qualified witness) the marriage can be valid and licit according to the regime of the extraordinary form.

  1. The manifestation of consent in extraordinary form

Canon 1116 § 2 insists that, if another priest or deacon can be present, he must be called and be present with the witnesses at the celebration. It is constant that the general principle with the exception of the extraordinary form that the presence of the only witnesses is sufficient for the valid and lawful celebration of marriage after all other conditions have been verified. However, the requirement of the presence of another priest or deacon who is not the qualified witness is in order to be able, in case of danger of death, to dispense the possible impediments of ecclesiastical laws that are public or occult, according to canon 1079 § 2, with the exception of the impediment deriving from the sacred order of the presbyterate.

For the manifestation of the consent of both spouses in the extraordinary form, no formality is required. It suffices that they “declare before the witnesses that they want to take each other and accept each other as husband and wife in marriage as the Church understands it”[38]. They cannot ask for and receive the consent of the contractors on behalf of the Church because it is the function proper to the qualified witness that they are not.

  1. The subjects of the canonical form

According to canon 1117, which was modified by the apostolic letter in the form of motu propio Omnium in Mentem of Pope Benedict XVI, the canonical form must be observed if at least one of the contracting parties au marriage was baptized in the Catholic Church, and did not leave it by a formal act. It is the clause “and has not left it by a formal act” which has been suppressed[39]. Now, the canonical form must be observed if at least one of the spouses is Catholic by his baptism or is received in it after his baptism in a non-Catholic church.

This is consistent with the provision of Canon 11, which states that “The baptized in the Catholic Church or those who have been received by the Church are those who are baptized by purely ecclesiastical laws” and with Canon 1059 that “The marriage of Catholics, even if only one party is Catholic, is governed not only by divine law, but also by canon law … “. Then those who are bound by the observance of the canonical form, either the ordinary canonical form or the extraordinary canonical form, are Catholics even if they marry non-Catholics. This supposes that all those who are not Catholics and who do not marry Catholics are excluded from the obligation of the canonical form.

 

  • The place of the wedding celebration

It is recommended, but for legality only, that the marriage of Catholics be celebrated “in the parish where one or the other of the contracting parties has domicile or quasi-domicile or residence of one month, or, if it is about vagi, in the parish where they reside de facto; … “(Canon 1115), even if it is a marriage between a Catholic party and a non-Catholic baptized party (cf. Canon 1118 § 1). However, the legislator gives the possibility to celebrate the marriage elsewhere with the authorization of the Ordinary of place or the Parish priest (cf cann.1115, 1118). The general principle is that marriage is celebrated in the parish church. However, the marriage may be celebrated in another church or in an oratory with the authorization of the local Ordinary or the parish priest.

  • 2.3 of Canon 1118 gives the faculty to the local Ordinary and no longer to the parish priest to allow the marriage to be celebrated in another suitable place. Another suitable place may include non-Catholic party place of worship if it marries with a Catholic party, private chapel, house or other place deemed fit by the local Ordinary. These exceptions open the question of the dispensation of the canonical form of Canon 1127 § 2.
  1. Dispensation from canonical form

Dispensation from the canonical form is one of the exceptions of the obligation of the canonical form of canon 1108 § 1 which allows to celebrate a valid marriage without the observance of the canonical form. It is a loosening of the ecclesiastical law on the obligation of the canonical form in particular cases if serious difficulties prevent its observation. According to canon 1127 § 2

“If grave difficulties hinder the observance of canonical form, the local ordinary of the Catholic party has the right of dispensing from the form in individual cases, after having consulted the ordinary of the place in which the marriage is celebrated and with some public form of celebration for validity. It is for the conference of bishops to establish norms by which the aforementioned dispensation is to be granted in a uniform manner..

PART III: DICUSSION

What happens if the canonical form is not respected?

In general, such a situation is called “defect of form” and the consequence is that the marriage is invalid (without prejudice to canon 144 § 1). Defect of form can be “absence of some essential elements” like the situation of not having a properly delegated qualified assistant (a good example is when several priests are gathered for one marriage and there in the sacristy they start sharing roles without consideration for who was actually delegated to demand and receive the consent) or a complete failure to observe the canonical form like when the marriage is celebrated outside the catholic church (without prejudice to canon 1127 § 2). If the canonical form is not respected, the marriage can be convalidated either with the simple convalidation provided in canon 1160 or sanatio in radice of canons 1161, 1163-1165.

[1] Cf. F. BERSINI, Il Diritto Canonico Matrimoniale. Commento Giuridico, Teologico Pastorale, 4e ed. aggiornata e ampliata, Leumann, Elle Di Ci, Torino 1994, p. 144.

[2] Cf. S. ARDITO, «Natura del Matrimonio Canonico e sua Preparazione», in E. CAPPELLINI (sous la direction de), Il Matrimonio Canonico in Italia, Queriniana, Brescia 1992, p. 65.

[3] J. WERCKMEISTER, Petit Dictionnaire de Droit Canonique, CERF, Paris 2011, p. 107.

[4] Cf. P. DIKOS, The Status of Canonical Form of Mariage, in Papua New Guinea. A Comparative Study of Customary, Statutory and Canonical Celebration of Mariage, Dissertation submitted to the Faculty of Canon Law Saint Paul University, Ottawa, Canada 2005, p. 132.

[5] Cf. F. H. KODO, La Clause Invalidante de la Forme Canonique pour le Mariage des Baptises dans l’Église Catholique. Le Débat Doctrinal après le Motu Proprio Omnium Mentem, Dissertatio ad Doctoratum in Iure Canonico Deposé au Pontificia Universitas Urbaniana, Facultas Iuris Canonici, Romae 2015, p. 11.

[6] Cf. J.P. BEAL – J.A. CORIDEN – T.J. GREEN (sous la direction de), New Commentary on the Code of Canon Law, p. 1325.

[7] Cf. E. FUCHS, Le Desir et la Tendresse, 1e édition, Labor & Fides, Genève 1979, pp. 90-93.

[8] Cf. B.A. SIEGEL, Marriage Today. A Commentary of the Code of Canon Law in the Light of Vatican II and the Ecumenical Age, 2nd ed., Staten Island, Alba House, New York 1973, p. 197.

[9] Cf. P. L. REYNOLDS –  J. WITTE (sous la direction de), To Have and to Hold, Cambridge University Press, 2007 ISBN 978-1-13946290-7, p. 98. We also note that in the 4th century, in the Eastern Church, it was a custom in certain regions that marriage received the priestly blessing to ensure fertility as indicated by Demetrios J. Constantelos, in his article, «Practice of the Sacrament of Matrimony According to the Orthodox Tradition», in The Jurist, vol. 31, no. 4, Fall, 1971, p. 620.

[10] Cf. TERTULLIAN, De Pudicitia. C.4. in J. MIGNI, Patrologiae Cursus Completes, Series Latina, vol. 2, p. 987.

[11] Cf. J.J. DUGUET, J.J. Conférences Ecclésiastiques ou Dissertations sur les Auteurs, les Conciles et la Discipline des Premiers Siècles de l’Église, Volume 3, New York Public Library 1789, Digitized 20 Jun 2006, p. 94 : «Benedictio, quae per sacerdotem super nubentes imponitur, non materiam delinquendi dedisse, sed formam tenuisse legis a Deo antiquitus institutae docetur».

[12] Cf. J.G. CHATHAM, «Evolution of the Juridical Form of Marriage in the Latin Rite», in The Jurist, 16 (1956),       p. 298; Cf. J.C. BARRY, «The Tridentine Form of Marriage. Is the Law Unreasonable», in The Jurist, 20 (1960),       pp. 160-161; Cf. J.A. ABBO, «A Change in the Form of Marriage», in Priest, 19 (1963), p. 670.

[13] J. WITTE, From Sacrament to Contract, Presbyterian Publishing 2012 ISBN 978-0-66423432-4, p. 91.

[14]Cf. J.P. BEAL – J.A. CORIDEN – T.J. GREEN (sous la direction de) New Commentary on the Code of Canon Law, p. 1326.

[15] Cf. CONCILIUM LATERANENSE IV, De Poena Contrahentium Clandestine Matrimonia, c. 51, a. 1215 Romæ in H. JEDIN et alii, Conciliorum Oecumenicorum Decreta (sous la direction de), Scienze Religiose, Balogna 1973, pp. 230-271 : «Sane parochialis sacerdos qui tales coniunctiones prohibere contempserit aut quilibet etiam regularis qui eis præsumpserit interesse per triennium ab officio suspendatur gravius puniendus si culpæ qualitas postulaverit».

[16] Cf. CONCILIUM TRIDENTINUM, sess. XXIV, De Reformatione Matrimoni, c. l; English trans. in TANNER, Decrees of the Ecumenical Councils, vol. 2, p. 755; Cf. A.C. JEMOLO, Il Matrimonion el Diritto Canonico. Dal Concilio di Trento al Codice del 1917, Il Mulino, Bologna 1993, p. 48.

[17] J. BURKE, A Canonical and Pastoral Commentary on the Laws of the Catholic Church on Marriage (Canons 1055-1165), Society of African Mission, Ibadan, 2000, p.193.

[18] Cf. F. H. KODO, op. cit., p. 14.

[19] G.S. SARTORI, « La parrochiale personale nell’attuale disciplina della Chiesa, » in Quarderni di Diritto Canonico, 2 (1989), pp.165-173.

[20]Cf. J. BURKE, op. cit., p.195. Voir aussi cann. 566, 262.

[21] E. CAPARROS et H. AUBE (sous la direction de), Code de Droit Canonique : Bilingue et Annote, 3e révisée, corrigée et mise à jour, Wilson & Lafleur, Canada, 2009, p.1111. Cf. OE 6 et cann. 776-866 du CCEO/90.

[22] Cf. F. H. KODO, op. cit., p. 16.

[23] L. CHIAPPETTA, IL Codice di Diritto Canonico : Commento giuridico-pastorale, 2, Libri III-IV-V-VI, terza editione, Edizioni Dehoniane Bologna, 2011, p.375. The author opines that the delegation can be ab homine (by those who have the ordinary faculty) and ab iure according to canon 144 § 2 (by law in the part of the Church who supplies in case of common error or positive or probable doubt).

[24] Cf. F. H. KODO, op. cit., p.17.

[25] Cf. F. H. KODO, op. cit., pp.20-21.

[26] Ibid., p. 21.

[27] Cf. Communicationes 10 (1978), p. 88.

[28] Cf. F. H. KODO, op. cit., p. 24.

[29] E. CAPARROS et H. AUBE (sous la direction de), op. cit., pp.979-980.

[30] J. BURKE (comp.), A Dictionary of Canon Law, Revised edition, Don Bosco publications, Nigeria, 2006, p.671: “Witness – in general one who, being present personally sees or perceives a thing. One who testifies to what he has seen, heard or otherwise observed.”

[31] E. CAPARROS et H. AUBE (sous la direction de), op. cit., p.980.

[32] Ibid.

[33] Cf. J. BURKE (comp), A Dictionary of Canon Law…, op. cit., p.672.

[34] J. M. HUELS, The Pastoral Companion…, op. cit., p. 294.

[35] Cf. PONTIFICIA COMMISSIO AD CODICES CANONES AUTHENTICE INTERPRETANDOS, “Responsum An ad physicam. De celebratione matrimonii”, 25 juillet 1931, in AAS 28 (1931), p. 388.

[36] J. M. HUELS, The Pastoral Companion…, op. cit., p. 296.

[37] J. HENDRIKS, Diritto Matrimoniale : Comment ai Canoni 1055-1165 del Codice di Diritto Canonico, Ancora, Milano, 1999, p.249.

[38] F. H. KODO, op. cit., p.26.

[39] BENOIT XVI, Motu Propio Omnium in Mentem, 26 Octobre 2009 in Documentation Catholique 18 avril 2010. N° 2444, p. 362-363.

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