Validity of Marriages
NIMIAM LICENTIAM (On Validity of Marriages)
Pope Benedict XIV
Encyclical of Pope Benedict XIV promulgated on 18 May 1743.
To the Venerable Brothers, Archbishops and Bishops of the Kingdom of Poland.
Venerable Brothers, Greetings and Apostolic Blessing.
We deplore the abuse by which Christian marriages, even long-stable ones, are now dissolved in the Ecclesiastical Courts of Poland. This abuse involves dissolution without due cause or in violation of canon law, and threatens grave injury to the faithful. We warned about this in Our Brief of April 11, 1741, and We exhorted you in the name of the Lord to watch over the flock entrusted to your care. We also warned that We were considering measures of redress and a suitable opportunity to pursue this matter.
Meanwhile We had learned that an evil custom of hidden marriages, more popularly known as marriages of joint knowledge, has spread throughout much of the Christian world. Among the resulting irregularities is that hidden marriages of this sort were themselves being dissolved where other marriages were publicly celebrated. In another encyclical letter to the Venerable Brothers, Patriarchs, Primates, and all Bishops on August 26 of the same year, We prescribed that the aforementioned evil custom must be abrogated and the provisions of the sacred canons and the decrees of the Council of Trent must be accurately observed.
Rules for Valid Marriages
2. Besides all this, in Our well-known letter of November 3, 1741, We enjoined laws and rules concerning the validity and nullity of marriages. Therefore ecclesiastical judges, carried away neither by fault or dishonesty nor by inexperience or ignorance, can safely pass sentence on the validity or nullity of marriages, using justice rather than their own inclinations.
Selection of Good Judges
3. Moreover it was alleged and objected that this sort of evil arose because such cases were handled by unqualified judges. In another encyclical addressed to all the bishops, We therefore enjoined and commanded that each one, together with the council of the Cathedral church, make a list of suitable judges and send it to the Apostolic See. Also Our letter of November 3, 1741 took pains to add that in appropriate circumstances attention should be turned to the authority of nearby bishops; if it should happen that this is not possible, only then should another proficient and suitable judge be selected.
4. We were thus confident that these abuses and all irregularities everywhere would with God's blessing be completely abolished; however, We learned with sorrow that new deceptions and subterfuges had been found there by which these saving ordinances could be eluded. The soul shudders to repeat the agreements which the litigants now reached. For instance one of them, after the ecclesiastical judge had nullified the marriage, dared to appeal and was held for the payment of a sum of money to the other (who acquiesced in the opinion). The soul also shudders because the judge instructed the appellant to make all kinds of payment.
Improper Customs in Poland
5. Having thoroughly investigated these matters, We have concluded that the irregularity and confusion in Poland arise for the most part from the manner and custom by which marriages are conducted there. Very often indeed the proper pastor is not even present for the marriage ceremony because the duty to witness the marriage has been delegated to a randomly-selected priest, even without the knowledge of the proper pastor. The banns announcing a couple's intent to marry must appear on three feast days during a solemn mass in the parish church of both. But these are often dispensed with, even though there is no legitimate and urgent reason to do so.
6. Therefore all avenues are closed by which one could determine whether a marriage is contracted with the necessary liberty and consent; when any such impediment exists between the contracting parties, the marriage must be dissolved and declared void. So the conditions are set for annulling marriages, even those consecrated in the Church. At times it is argued that the marriage was entered upon by force or by fear, in either case without the free consent of one or the other of the contracting parties; at other times a legitimate and canonical impediment is alleged, which could have been known before the marriage was contracted if it had not been purposefully concealed; also at times, and this happens more frequently, a marriage is annulled because it was contracted before another priest, even with the consent of the parish priest or of the ordinary bishop but without the necessary and usual formalities. Certainly it is clear that these dissolutions of marriages in Poland are a source of evil and an open door to crime. Furthermore the canonical benefit of appeal, which one of the spouses can enjoy after the case is decided in favor of the other, is impeded by these frauds and subterfuges. Finally these frequent marriage dissolutions are not without the gravest offense and scandal to the upright.
Annulment and Excommunication
7. To remedy this pernicious evil, We, with certain knowledge and after mature deliberation, declare all pacts between spouses for the dissolution of marriages to be null, invalid, and ineffectual, both now and for the future. We also annul those pacts which interfere with the appeals process, even if the pacts were approved by oath, and even if they were agreed upon before the publication of our most recent letter. So that no such pact may ever be considered valid and obligatory, We inflict the penalty of excommunication on anyone entering into a pact, from which no one can obtain absolution except through Us and Our successors, except at the hour of death. Besides We declare that any judge who may have dared to announce and further the pacts We mentioned before also incurs or will incur the same penalty of excommunication. We again confirm whatever is contained in the aforementioned last letter or in our Constitution, and especially all that concerns the procedure and order of the appeals from the unsuccessful defender of the marriage, and the sentence of the judge against the annulment. We bid your Brotherhood again to publish and disseminate the same letter and command that this be done as though it had been expressly inserted word for word in the present letter, just as We desire its tenor to be expressed and inserted in this present letter.
Advice to Clergy
8. What We have said on the subject of matrimony up to this point sufficiently informs the faithful of the sanctity of marriage. They may now approach this great sacrament with that reverence and piety which is fitting, and regard it as indissoluble. Nevertheless We feel that We must also set forth to you the distinguished and salutary rules of other well- organized dioceses where lawsuits concerning marriages and their annulment are rare.
9. The pastor is obliged to witness in person the marriages celebrated in his parish unless a legitimate and grave reason prevents him.
10. Before the publication of the banns, the pastor himself must take care to question both groom and bride separately to determine whether they consent voluntarily and freely to marry. He must also strive to determine whether there is any impediment and, if so, what the nature of the impediment is; whether one of the contracting parties has been engaged and given a solemn promise to another, and whether the sons and daughters contract with the consent of the parents. After the pastors have diligently explored these and other relevant matters, if they find anything in these questionings either lacking or potentially harmful, they must suspend the banns and refer the possible obstacles to their own bishop, who will judge the matter.
11. Now if the parish priests find nothing to prevent the banns from being announced publicly and according to custom, then the banns are published on three successive feast days during the mass. This follows the prescriptions of the Lateran Council under Pope Innocent III and those of the Council of Trent, so that any impediment heretofore unknown may be revealed by those who hear the banns.
Pastor as Witness
12. Bishops watching vigilantly over their sheep know that matrimony is valid before any priest, not just the parish priest, if the proper pastor or the ordinary of the place has granted the necessary permission. The bishops can also dispense with the banns, or permit only one instead of three, or even none, to be read, if an urgent and legitimate reason exists. Nevertheless they should take diligent care that they do not use this authority indiscriminately, both in dispensing with the banns and in permitting any priest rather than the proper pastor to witness the marriage. Should necessity demand, they are not to grant this authority at once, but only after they are convinced that there is no impediment between the contracting parties.
Dispensations from the Banns
13. Concerning dispensations from the banns, the bishops clearly understand that theirs is not at all an unbridled and immoderate authority over this matter, but an authority for reasons of prudence to deal with legitimate occasions that may arise. This authority is to be used cautiously, so that in all cases they recall the words of the Council of Trent: "But if at times there is a probable suspicion that a matrimony might be wrongfully impeded if so many as three banns preceded, than let only one be made, or at least let the matrimony be celebrated before the presence of the pastor and two or three witnesses. Then before the marriage is consummated, let the banns be published in the church so that if there are any impediments, they may more easily be uncovered."
14. This kind of episcopal concern and diligence regarding matrimony removes almost all dissolutions of marriages; let us therefore follow this path. Direct your steps on to the age-old, well-trodden way, commended by the Council of Trent and established for all the bishops to follow. See to it that parish priests and other spiritual leaders, called in part to share your labors, expend similar diligence and integrity in exercising their ministry. Do not let an easy goodwill remove the juridical presence of the proper pastor, necessary for contracting marriage; likewise, do not grant another priest permission to witness a marriage for some trifling reason. The canonical laws concerning nuptial banns are to be scrupulously kept, since they can hardly be passed by without offending and scandalizing many. Keep them yourselves, and see to it that they are observed by other interested parties.
15. Do not abuse the easy dispensation of the banns without due cause. It has inflamed lawsuits and loathing, and cannot serve as a model for further action. A pernicious custom does not establish a norm for action, but serves as a reproach of evil deeds.
16. It is asserted that the hasty and extensive granting of these commissions and dispensations was due to the example and encouragement of the Ordinary of the Apostolic See in Poland, at the time Nuncio, who was excessively indulgent in this area. Whether truly or not, in virtue of the authority given him, he can grant these and other dispensation, We have restrained the authority of the present Polish Nuncio in this matter, so that your Brotherhood, with the example and encouragement abolished, may for the future abstain from these commissions and dispensations.
17. Therefore, We want you to know that We intend to apply our authority to more efficacious and stringent remedies for curing these evils. Even after so many exhortations and prescriptions of Apostolic providence and authority, We did not succeed in abolishing the former litigation concerning marriage and separation. You certainly understand that We could justly and reasonably reserve the trials of matrimonial cases even in the first process. But We leave to the bishops the first and to the metropolitan the second process. We then decree that in Polish matrimonial trials the sentence concerning the nullity of a marriage, both in the first process by the bishops and in the second by the metropolitan, may not be executed unless both judgments with their arguments are first examined and approved by the Cardinals, who are the interpreters of the Council of Trent. Moreover any marriage contracted after both judgments have been delivered in your courts, whether or not the Cardinals are considering the matter, We declare to be null and void, both now and for the future.
18. This present letter and whatever it contains is to stand firm, valid and efficacious, and to obtain its plenary and full effect, is to be observed inviolate by all whom it concerns now and will concern.
19. Finally We desire that all the copies and imprints signed by the hand of any public notary and bearing the seal of a person of an ecclesiastical dignity, are to be given the same faith in the courts and outside of them which would be given to the present letter if it were presented or displayed.
20. For the rest, We beseech and exhort you to choose individual ministers and officials for your curias who are outstanding in all the Christian virtues, and commended by long experience. Vigorously enjoin on them that each one has many tasks to perform in his ministry. And you yourselves must maintain your vigilance. Remember the account to be rendered to the Prince of pastors Jesus Christ for the flock entrusted to your care, and remember the eternal reward in heaven promised to those who have fought lawfully. Meanwhile as a sign of your success, and of a richly deserved abundance of heavenly grace, We lovingly impart the Apostolic Blessing to your Brotherhood.
Given at Rome, at St. Mary Major, under the Ring of the Fisherman, on May 18, 1743, in the third year of our Pontificate.
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