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
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.
Hidden Marriages
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.
New Abuses
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
5. Having thoroughly investigated these
matters, We have concluded that the irregularity and confusion in
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
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.
Nuptial Banns
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
Remedies
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