Last week, I suggested merging the payment of the bride price and the canonical form of marriage into a single rite for a marriage that will be valid in customary law and the Church. This is the juridical proposal. As the juridical proposal is not challenge-free, is a pastoral proposal opportune?
What is the pastoral problem? Baptised Catholics who are only married in customary law cannot receive communion because their marriage lacks canonical form and is thus invalid in the Church. How and why?
A marriage contracted between two Catholics according to canonical form is, by nature, a sacrament. Pope Francis states: “Christian marriage, as a reflection of the union between Christ and his Church, is fully realised in the union between a man and a woman who give themselves to each other in a free, faithful and exclusive love, who belong to each other until death and are open to the transmission of life, and are consecrated by the sacrament, which grants them the grace to become a domestic church and a leaven of new life for society” (Amoris Laetitia, 292). Canon law governs Church marriage even if only one of the contracting parties is a Catholic (Canon 1059).
Regarding divorced and remarried Catholics, Pope Benedict affirms that they are not admitted to the sacraments “since their state and their condition of life objectively contradict the loving union of Christ and the Church signified and made present in the Eucharist” (Sacramentum Caritatis, 29). Since marriage between two baptised Catholics is not only a contract but a sacrament, the Church has the exclusive right to safeguard the celebration of sacraments. A pastoral solution is to enable couples only married in customary law to receive communion. This proposal faces the challenges of validity and liceity.
First, the canonical form of marriage entails that only marriages contracted before the local ordinary, pastor, or a priest or deacon delegated by either of them, who assist, and before two witnesses are valid (Canon 1108). Although valid in customary law, customary marriages are not valid in the Catholic Church.
Liceity is the lawfulness of an act. Although most people are baptised as infants and are incapable of making a choice, parents and sponsors pledge to bring up the child in the faith. As a Catholic, one is obliged to obey the laws of the Catholic Church (Canon 11), including the canonical form of marriage (Canon 1117). It does not matter if the child was not raised a Catholic or has lapsed from the faith.
Previously, the law allowed for defection by a formal act, which the local Ordinary grants through a decree. Since baptism creates an indelible mark on us, the defection means that the rights and obligations of the Catholic Church no longer bind the person. Among the effects is that the person would not be granted Catholic burial and is exempt from the canonical form of marriage. However, due to the pastoral problems arising from this law, Pope Benedict XVI abrogated it in 2009 with his motu proprio, Omnium in mentem.
As mentioned in the past posts, St Ignatius strongly admonished Christians to contract marriage with the bishop’s approval as early as the second century. The canonical form, as a criterion for the validity of sacramental marriages, began in the 16th century at the Council of Trent. Did we have Christians who did not invite priests to bless their marriages before these periods? Were those marriages invalid and illicit? Were they denied communion?
One way the Church resolves the question of canonical form is through dispensation. As the canonical form is a merely ecclesiastical law, the local Ordinary, before marriage is contracted and in difficult cases, can dispense from the canonical form for marriages between Catholics and baptised non-Catholics (mixed marriages – Canon 1127 §§1-2). The local Ordinary can grant a dispensation from the impediment of disparity of cult, that is, marriage between a Catholic and an unbaptised person (Canon 1086). He can also grant dispensation from the canonical form for the Catholic party (Canon 1129). When dispensations are granted before the marriage, the Catholic party can receive communion after marriage.
However, a dispensation from canonical form for two Catholics is reserved to the Apostolic See. As canon 87 §1 allows the diocesan bishop to dispense the faithful from universal disciplinary laws, the Dicastery for Legislative texts (Dicastery responsible for the authentic interpretation of the law) confirmed that apart from the urgent danger of death (extra casum urgentis mortis periculi), the diocesan bishop cannot dispense two Catholics from the canonical form of marriage.
This means that people are free to continue with the current practice of contracting different marriage ceremonies according to the different legal systems. They must ask for a dispensation before customary marriage if they wish to contract marriage only according to customary law.
Of course, it cannot be granted arbitrarily. The ecclesiastical authority must have moral certainty that the couple does not reject Church marriage, that there is no canonical impediment to the marriage, that it is not an arranged marriage, and that the couple will be present at the payment of the bride price. The dispensation comes with a proviso of denying communion to any party involved in polygamy or bigamy. The custom in divorce cases remains.
With a dispensation granted before the customary marriage, they can receive communion. Going through the rigours of obtaining a dispensation shows some commitment to the faith.
May God continue to help us🙏🏾
 Pontificia Commissio Codici Iuris Canonici Authentice Interpretando, Can. 87, § 1 (cf. AAS, LXXVII, 1985, 771), available at https://www.delegumtextibus.va/content/testilegislativi/it/interpretazioni-autentiche/can-87par1.html