What Happens when Canon Law Conflicts with Social Custom?

Q:  My boyfriend and I are Catholics, living in [an Asian country].  I am 33 years old.  We have wanted to get married for 8 years.   However, due to strong cultural issues … my parents are against my marriage.  Now I had to make a decision to get married without their consent, and my boyfriend’s family is ready and very supportive.

But my parish church wants approval from my parents for marriage which I do not have.  My boyfriend’s family also approached  their parish priest, he said he needs approval for marriage from my parents.

Please can you help me to know the procedure to find out if there is any other way that I can get a church marriage or does the Church also not approve of us getting married in the church? –Mary

A:  If you’re scratching your head and wondering what’s going on here, you’re not alone.  Why on earth would a 33-year-old Catholic need her parents’ permission, in order to have a Catholic wedding?  At issue here appears to be a combination of cultural norms in Mary’s country, which traditionally require the bride’s and groom’s parents to approve of the marriage; and an abysmal failure of the Catholic clergy there to understand  both the Church’s teachings on the sacraments, and their responsibility for the spiritual wellbeing of their parishioners.

Fortunately for both Mary and the rest of us, the Code of Canon Law specifically discusses the role of custom in relation to the laws of the Church.  The very fact that it takes the time to address this issue should tell us right away that “custom” and “law” are not synonymous.  That’s because customs originate from a community; laws come from a legislator.  So even if you can honestly say in your part of the world that “we’ve always done it this way,” that doesn’t automatically imply that “doing it this way” is a legal requirement in the eyes of the Church.

For this reason, canon 23 says pretty bluntly that a custom acquires the force of law, only if it was both (a) introduced by a community of the faithful, and (b) approved by the legislator according to the norm of the canons that follow.  If the legislator—most commonly the Pope or the diocesan bishop—decides to take a practice that became a tradition among the faithful over time and turn it into a law, then it’s a law.  Otherwise, it’s not.  (There’s one exception to this, which we’ll look at in a moment.)

There are plenty of customs out there which could never become law in the Catholic Church, because they conflict with divine law (c. 24.1).  To take an obvious example, missionaries over the centuries have converted countless pagans in lands where polygamy is customary.  But as we all know, having multiple wives (or being one of multiple wives) is a direct violation of Scripture, which tells us that “a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh” (Matt. 19:6; Gen. 2:24).  Thus if someone involved in a polygamous relationship wants to become a Catholic, the Church will tell him/her frankly that the marriage situation has to be resolved first.  Having more than one wife might be the custom in some parts of the world; but it is a custom that canon law describes as contra legem (against the law).  In situations like these, therefore, canon law requires that the custom yield to the law.  In other words, if you want to be Catholic, observing this sort of custom has to end.

But not all customs are contra legem.  Lots of customs exist around the world which are not in conflict with church teachings/laws at all.  For example, in cities and villages where the parish church contains the tomb of a canonized saint, there are centuries-old customs related to the saint’s feast-day involving processions, many of which evolved into astonishingly complex sets of “rules” mandating that certain members of the community have the right to march at the front, to carry the saint’s relics personally, to wear ornate garb that perhaps is always paid for by the parish, to blow trumpets, etc.  Similarly, different cultures have developed traditions regarding elements that “must” be included in wedding celebrations, Catholic or non-Catholic.  If, by their nature, these customs can peacefully co-exist together with the Church’s teachings and its rules, they are said to be customs praeter legem (alongside the law).  Speaking in general, the Church has no problem with their existence, as they do not contradict Catholic teaching.

Here’s where things can potentially get a bit tricky: if a custom praeter legem has been observed by a community for thirty consecutive years, and the community intended it to become the norm (c. 25), then it acquires the force of law (c. 26).  But canon 24.2 tells us that this can only happen if the custom is reasonable.  Canon 26 adds that an immemorial custom, observed for at least 100 consecutive years, not only has the force of law, but cannot be overturned by any future canon law that specifically seeks to prohibit such customs.

If you don’t live in a nation where the Catholic Church has been established for well over a millennium, this concept of “custom obtaining the force of law” can be very difficult to grasp!  But there are many parishes, monasteries, and other Catholic entities—particularly in Europe—which have traditions that go back much farther than anyone can document, and they have acquired the force of law.  Sometimes the custom-become-law involves an exemption from payment of diocesan taxes; or perhaps a particular monk (or a mother superior) might have a specific type of authority in a locale that is normally only wielded by bishops.  Occasionally, a wealthy old noble family long ago obtained the right to a private chapel and their own private priest-chaplain who must reside on their estate, even though the parish church is only five minutes away.  In such cases, the Church has acknowledged the existence of the custom; and even though it was not originally written down as a law by any legislator, the Church accepts it as law today.

Note that the Church must acknowledge this—in other words, you can’t simply decide that ”we’ve been doing this for thirty years, so our tradition has the force of law” on your own.  And if the Church determines that the custom isn’t “reasonable,” or that there is insufficient evidence that it’s been observed for thirty years, or that the custom is somehow in conflict with Catholic teaching … you (or your school, your convent, etc.) can be ordered to cease observing your custom.

So what does all this have to do with Mary?  Everything.  Let’s examine what she tells us.

Mary lives in a majority non-Christian country, with a centuries-old tradition that couples don’t get married unless their parents approve of the marriage.  (In fact, for a long time the custom really was that the parents chose their child’s spouse, and the son/daughter had no say in the matter whatsoever.)  Note that this is a cultural tradition, not a specifically religious one.

Mary wants to marry a man of whom her parents disapprove—details have been removed here, but Mary indicated that he is of a lower social class.  Evidently her mother and father think he is simply not good enough for her.  There’s nothing unique about this: God alone knows how many times this scenario has been played out around the world, over the course of history!  But the question we need to ask is this: is refusing to allow a 33-year-old Catholic woman to marry a man whom her parents dislike consistent with the Catholic theological understanding of marriage, and with canon law?

Any Catholic who is well informed about the sacrament of matrimony knows that the answer is no.  As we saw in “Marriage and Annulment,” among many others, the Church teaches that the consent of the spouses makes the marriage (c. 1057).  A man and woman must exchange their free consent, which involves an act of the will, for a valid marriage in the eyes of the Church.  Note that canon 1057 specifically adds that this consent cannot be supplied by any human power—and that includes the power of parents.

This is, of course, entirely consistent with canon 219, which states that all the Christian faithful have the right to be free from any kind of coercion in choosing a state of life (discussed in greater detail in “Can a Catholic Ever Elope?”).  If you’re old enough to get married, and you’re spiritually ready to get married, and there is no theological/canonical reason why your marriage would be prohibited in the Church, then you should be allowed to get married!

Naturally, life is much easier for everyone if the parents of the bride and groom are happy about their decision to wed.  But if they aren’t, their objections have no bearing on the ability of the couple to marry validly and licitly in the Catholic Church.  Assuming that the parish priest determines that they are spiritually prepared, and that no impediments to the marriage stand in the way of its valid celebration (c. 1066, see “When Can the Parish Priest Postpone a Wedding?” for more on this), there is absolutely no reason why the couple cannot marry in the Church.

The cultural tradition in Mary’s country, which requires parents to approve of their child’s choice of spouse if they are to be allowed to marry, is a clear-cut case of a custom contra legem, as it violates the rights of the prospective spouses to celebrate the Catholic sacrament of matrimony.  If a priest is faced with (a) a Catholic who is canonically able to marry, and (b) a social custom which prevents the marriage, the choice is simple: the custom is disregarded and the marriage takes place.  Period.

It is truly mind-boggling to hear that poor Mary and her fiancé have been waiting for eight years (!) in the vain hope that her parents would change their minds, because the priests in both their parishes are illegally refusing to marry them without parental consent.  This constitutes an outrageous violation of their rights as Catholics, by their parish clergy, who should have willingly agreed to celebrate their wedding long ago.  Canon 519 states the obvious, when it tells us that the pastor of a parish is to carry out the office of sanctifying (among other things), in accordance with the law; and canon 528.2 specifically mentions that the parish priest is to ensure that the Christian faithful entrusted to his care are nourished by a devout celebration of the sacraments.  In contrast, we can see that the pastors of Mary’s and her fiancé’s parishes are both deliberately preventing the couple from celebrating the sacrament that they are prepared to receive—and the day will come when these priests will stand before God and be required to answer for that.  It should be a terrifying thought!

Mary needs to contact the diocesan bishop and inform him of the situation—and if for some incomprehensible reason he too fails to understand that the rights of the Catholic faithful to receive the sacraments trump a regional social custom involving parental consent, then Mary should take her case to the appropriate dicastery of the Vatican, which of course will rule in her favor (once they get over their initial shock).

For the record, in cases akin to this one, there can sometimes be another factor which complicates the situation immensely: if civil law in Mary’s jurisdiction actually required her to obtain her parents’ approval for the marriage before it could take place, then the Church would have to find some kind of a workaround.  No such civil law exists in Mary’s country; but if it did, the Church would probably end up celebrating in cases like Mary’s what are referred to in the code as secret marriages (cc. 1130-1133; discussed in “Why Would I Need an Annulment, Since My Civil Marriage Was Obviously Invalid?”), so that the Catholic faithful’s right to the sacraments (cf. c. 843.1) would be respected without openly violating civil law.  In nations where the Church is unable to operate in full freedom, the need to find a way around unreasonable laws enacted by the secular authorities is unfortunately a way of life—because the Catholic clergy understand that the spiritual wellbeing of the faithful under their care is worth it.  But as already noted, Mary is indeed blessed that in her country this is not the case.

It is scandalous, to put it mildly, that the parish priests who are responsible for Mary’s and her fiancé’s spiritual welfare are either so poorly trained in Catholic sacramental theology, or so willing to take the easy way out of an awkward situation, that they would both refuse to celebrate her wedding and leave her hanging.  Compare their treatment of Mary and her fiancé, with the way that the great English missionary Saint Boniface (whose original name was Winfrid, 675-754) acted when he heard that the German pagans whom he was in the process of converting were still wrapped up in a local tradition involving human sacrifice at a huge oak tree.  Even among baptized Christians of the Middle Ages, who had accepted the Church’s teachings on the One True God as revealed to us through His Son Jesus Christ, it seems that even the most vile—and violent—social customs died hard!

When Boniface realized that his new Christians were still involved in sacrificing children before the oak tree, he didn’t react by taking the path of least resistance.  His 8th-century biographer tells us that Boniface himself went to the site of the oak tree … and chopped it down.  Thus, in a nutshell, ended the contra legem local custom of human sacrifice in that region of Germany.  (Later versions of the story state that this event is the origin of the Christmas tree, as Boniface purportedly told the people to decorate the fir tree in honor of Christ’s birth instead.)

Needless to say, Boniface did whatever was necessary to strengthen the Catholic faith in the minds and hearts of his listeners, and there is good reason why the Church considers him a great saint.  Let’s pray that Mary’s and her fiancé’s parish priests will likewise do what is necessary, to ensure that they are able to celebrate the sacrament of matrimony as is their right.

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