NE TEMERE

The words Ne Temere (lest perhaps) are the opening words of a decree concerning the juridical form of marriage. After consultation with the commission of cardinals, assigned the task of codifying the law of the Church, the decree was issued by Pope pius x through the Congregation of the Council on Aug. 2, 1907, to take effect on Easter Sunday, April 19, 1908 (P. Gasparri and I. Serédi, Codicis iuris canonici fontes 1917 n. 4340).

The tametsi decree (Nov. 11, 1563) of the 24th session of the Council of Trent had already established a juridical form necessary for the validity of marriage. Tametsi stated: "Those who shall attempt to contract marriage otherwise than in the presence of the parish priest or of another priest authorized by the parish priest or by the Ordinary and in the presence of two or three witnesses, the Holy Council renders absolutely incapable of thus contracting marriage and declares such contracts invalid and null, as by the present decree it invalidates and annuls them."

Despite the Tametsi decree, and despite further clarifications from the Roman congregations and the wide faculties given to ordinaries and their delegates, there still remained great need for further amplification and legislation in the Church with regard to the form of marriage.

Clandestine marriages continued to be contracted. This often condemned practice presented many moral as well as legal problems. The decree Tametsi, however, had not been published everywhere so that it had not become effective throughout the universal Church. Where it had been published doubts remained concerning the proper pastor before whom a marriage was to be contracted. Finally, the Tametsi decree had made no exemption from the law for baptized non-Catholics. The last difficulty had been somewhat alleviated by the decree Matrimonia quae in locis of Benedict XIV, which exempted baptized non-Catholics from the juridical form of marriage (Nov. 4,1741). This decree was issued originally for Belgium and Holland only, but was later extended to other parts of the world and then applied to all places where the Tametsi decree had been promulgated.

In his declaration, Benedict XIV referred to the widespread doubts and anxieties that troubled bishops, pastors, and missionaries concerning the validity of non-Catholic and mixed marriages. To settle the various difficulties once and for all while abolishing any contrary law or custom, the Ne Temere decree made the following provisions: (1) All Latin-rite Catholics were bound to the juridical form of marriage when they married Catholics; (2) Non-Catholics were exempted when they married among themselves; (3) The "communication of privilege" admitted by Benedict's declaration was henceforth abolished, so Catholics were bound to the juridical form when they married non-Catholics, except in Germany and Hungary as a result of the constitution Provida given by Pope Pius X to Germany and later extended to Hungary; (4) The juridical form required the presence of the local ordinary or pastor or a priest delegated by either. These ministers could validly assist at all marriages within the territorial limits of their respective jurisdictions. The presence of at least two other witnesses was required; (5) In imminent danger of death, if neither the ordinary nor pastor nor a delegate of one of these could be present, marriage could be contracted validly before any priest and two witnesses for the sake of peace of conscience or the legitimation of offspring; (6) In places where the local ordinary, pastor, or delegate could not be present and the absence had endured for at least a month, marriage could be contracted before two witnesses without the presence of a priest. Moreover, the Ne Temere decree, in the interest of good order, determined that marriages ought to be celebrated in the parish of the bride.

The legislation on the canonical form of marriage as laid down by the decree Ne Temere was later substantially adopted by the Code of Canon Law, which went into effect on May 19, 1918. The one major difference between the legislation of the Code of Canon Law and the legislation contained in the Ne Temere concerned persons who had been baptized in the Catholic Church but who later lost their identification with the Church. The Ne Temere decree made no exception for these persons with regard to the canonical form of marriage. The Code of Canon Law provided for them in canon 1099.2, exempting non-Catholics who had been baptized in the Catholic Church provided one or both of their parents were non-Catholics and provided they were raised from infancy outside the Catholic Church.

Finally, on Aug. 1, 1948, Pope Pius XII eliminated the exemption afforded by the latter part of the abovementioned canon 1099.2. This final ruling concerning the form of marriage became effective on Jan. 1, 1949.

Bibliography: e. fus, The Extraordinary Form of Marriage according to Canon 1098 (Catholic University of America Canon Law Studies 348; Washington 1954). j. carberry, The Juridical Form of Marriage (Catholic University of America Canon Law Studies 84; Washington 1934). w. boudreaux, The "ab acatholicis nati" of Canon 1099.2 (Catholic University of America Canon Law Studies 227; Washington 1946). a. marx, The Declaration of Nullity of Marriages Contracted outside the Church (Catholic University of America Canon Law Studies 182; Washington 1943).

[w. van ommeren]