Clandestinity
According to the current Code of Canon
Law
A secret marriage can only be permitted
by the local ordinary (i.e., the diocesan bishop, vicar general, or an
episcopal vicar), the parties involved must observe secrecy (only the priest,
the couple, and two witnesses should be present at the wedding), and the
marriage is recorded only in a special register in the secret archives of the
diocesan curia. (cf. CCL 1130-1133)
http://wdtprs.com/blog/2014/01/ask-father-secret-marriage-to-avoid-government/
The term clandestine marriage had not
always the same significance before the 16th century. Prior to the decree
"Tametsi" of the Council of Trent, no form was prescribed for the
valid celebration of matrimony. A couple intending marriage had merely to
exchange a true matrimonial consent, manifested in some external way, in order
to be thereafter man and wife. Neither the natural law nor Roman law required
more than this; nor did the Church impose any special formalities as being
necessary for validity. However, from the very beginning the Church insisted
that the Faithful should not contract this sacrament without her intervention
nor embark on the married life without her blessing. While clandestine
marriages stood condemned, no uniform method of contracting a legitimate
marriage was enforced throughout Christendom... A clandestine marriage before
the year 1215 had two meanings; it signified either a marriage contracted by a
couple without any witnesses at all, or a marriage not contracted in facie
ecclesiae as explained above, although contracted in the presence of a few
selected witnesses. After the fourth Lateran Council, the term took on a third
meaning. In this Council, Innocent III introduced for the Universal Church what
had previously been a local custom of the diocese of Beauvais, namely the
proclamation of the banns. From that date on, a marriage celebrated without the
banns having been proclaimed was considered a clandestine marriage, even though
the couple had exchanged their consent in the presence of a priest.
The Council of Trent, to prevent
Clandestine Marriages, required that all Marriages should be solemnised by a
priest in the presence of two witnesses, but it considered clandestine
marriages to be valid, until annulled by the Decree of that Council where it
should be received.
(The "Sanatio in Radice"
Before the Council of Trent, pp. 81-83)
Strictly speaking, clandestinity
signifies a matrimonial impediment introduced by the Council of Trent (Sess.
XXIV, c. i) to invalidate marriages contracted at variance with the exigencies
of the decree "Tametsi", commonly so called because the first word of
the Latin text is tametsi. The decree reads:
Those who attempt to contract matrimony otherwise than in the presence
of the parish priest or of another priest with leave of the parish priest or of
the ordinary, and before two or three witnesses, the Holy Synod renders
altogether incapable of such a contract, and declares such contracts null and
void.
The Council of Trent did not transmit
any historical record of this question. While upholding the validity of
clandestine marriages "as long as the Church does not annul them",
the council asserts that "for weighty reasons the holy Church of God
always abhorred and prohibited them" (Sess. XXIV, De reformatione
matrimonii). That this sentence strikes the keynote of unending antipathy on
the part of the Church towards clandestine marriages can be gathered by a brief
review of the historical attitude of the Church. In the fifth chapter of his
Epistle to Polycarp, St. Ignatius intimates how men and women about to marry
should enter wedlock with the bishop's consent, so that their marriage may be
in the Lord (Ante-Nicene Fathers, I, 100). Tertullian writes that matrimonial
unions contracted without the intervention of ecclesiastical authority are
liable to be judged tantamount to fornication and adultery (On Pudicity 4). In
another passage he extols the happiness of that union which is cemented by the
Church, confirmed by oblation, sealed with blessing, which angels proclaim, and
which the Father in heaven ratifies (Ad uxorem, in Migne, P.L., II, 9). The
thirteenth canon of the so-called Fourth Council of Carthage requires parties
contracting marriage to be presented to a priest of the Church by their parents
or bridal attendants in order to receive the blessing of the Church (Hefele,
History of the Councils, II, 412). Whatever may be the age of this canon, the
custom therein enjoined had previously won the approval of St. Ambrose, who
earnestly sought to have all marriages sanctified by the priestly pall and
benediction (Epistle xix to Vigilius, in Migne, P.L., XVI, 984). The Code of
Justinian bears evidence to the influence which this imperial legislator
wielded to secure the public celebration of marriage according to some
legitimate form ("Novellæ", or New Constitutions, xxii, lxiv, cxvii).
In the ninth century the Emperor Basil
gave the force of written law to a widely observed custom of having a priest
assist at marriages to bless and crown the married parties. Not long after, Leo
the Philosopher declared that marriages celebrated without a priest's blessing
were worthless. The replies of Pope Nicholas I (863) to the Bulgarians, the
Pseudo-Isidorian Decretals, as well as the "Decretum" of Burchard and
that of Gratian embody ample evidence to prove that, during the ninth century and
thereafter, the public celebration of nuptials was prescribed and clandestine
marriage condemned. Though Gratian alleges forged decretals to show the
prohibition of clandestine marriages, it must be granted that he faithfully
records the usage of his age concerning the validity of such marriages. Though
Alexander III (1159-1181) maintained the validity of clandestine marriage when
no other impediment intervened, he obliged parties contracting such marriages
to undergo penance, and suspended for three years any priest assisting thereat.
(Wernz, Jus Decretalium, IV, title III, no. 516.) Another step in advance was
made when Innocent III, in the Fourth Lateran Council (1215), inaugurated the
proclamation of the banns.
Finally, a turning-point in the history
of this question was reached when the Council of Trent enacted the
"Tametsi" as a measure destined to check abuses and to safeguard the
sacredness of the marriage contract. The principal elements of this decree
pertained to the sentence of nullification affecting marriages of Christians
failing to enter wedlock in the presence of the parish priest or his legitimate
representative and in that of two or more witnesses; to the ways and means of
publishing the decree; and to the penalty awaiting transgressors thereof. A
succinct comment concerning these points will elucidate the purport of the
decree. In the first place, to attain the desired end more effectually, the
Council of Trent decreed a singular method of promulgation. It ordered that the
decree should be published in every parish, and that it should take effect only
after thirty days from its publication. When a parish comprised many churches,
publication in the parochial church was sufficient. The term "parochial
church" comprehends missions attended by priests on whom the faithful
depend for the ministrations of religion (Cong. of the Inquisition, 14
November, 1883). Publication of the decree in churches situated in such
missions had the force of law. A new publication was not necessary when a newly-organized
parish results from the dismemberment of a parish wherein the law already
obtained. On the contrary, if a parish subject to the law should be united to
one hitherto exempt, the former would remain bound by the law and the latter
retain its immunity (Cong. of Inquis., 14 Dec., 1859).
(James O'Neill,
"Clandestinity," The Catholic Encyclopedia)
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