145. The Indissolubility of Marriage

1. Paulus, an infidel, converted to the faith, married Paulina, a Catholic. After three years of marriage, Paulus, having apostatized from the faith, returns to infidelity. Can Paulina 1. marry another Catholic? 2. at least be separated from Paulus by divorce from bed and cohabitation?

R. To the 1st: Negatively. "Faithful spouses cannot, on account of the return of the other spouse to infidelity, contract another marriage with another faithful person." S. C. de P. F., Dec. 7, 1626. - To the 2nd: The other particular circumstances of the case which are present must be set forth and weighed. "Catholic spouses can remain with an apostate infidel, or separate themselves from him, according as the danger of perversion and the dishonor of the Creator, in the judgment of a prudent confessor, require; and the sacraments can be administered to these." S. O., Sept. 19, 1671. Cf. Collect. S. C. de P. F. n. 1257, 1280-1282, 1284, 1287, 1288; I. M. 978.

2. Franciscus, converted to the faith, once the interpellation had been made and a negative response had been received, decided to pass to other nuptials only after a notable time. - Must the interpellation be repeated?

R. If the spouse remains in infidelity, the interpellation must not be made again. But if the spouse has embraced the faith, or now embraces it, Franciscus is bound to receive her. S. C. de P. F., June 26, 1820; Enchir. Moral. n. 980; Innocent III, c. Gaudemus.

3. Francisca, recently converted to the faith, having obtained an apostolic dispensation from making the interpellation, enters into marriage with Caius, a Christian. After three months her former husband appears, reclaiming her, and he had already received baptism a whole year before. - Must Francisca return to the former husband?

R. Negatively. The reason is that, by the apostolic dispensation, that former marriage was dissolved. Whatever may be said concerning the question by what law the Supreme Pontiff dissolves the bond of marriage consummated in infidelity, cf. Ballerini apud Gury 759, it is wholly certain what Benedict XIV affirms, de Synodo, l. 13, cap. 21, n. 5: "The first marriage remains dissolved at that very moment, and indeed irrevocably, at which the spouse converted passed to other nuptials with a faithful person, whether because he was vindicated into this liberty by divine law, for the reason that the infidel spouse, judicially interpellated, had denied himself to evangelical truth or to harmless cohabitation, or because peculiar circumstances of things opened the way to an apostolic indult; which indult indeed, since it is bound to no condition, perpetually asserts the validity and firmness of the second marriage, and closes off return to the first nuptials, even if someone should contend that he can prove that the first spouse interpellated had not been free to respond, or that he had even then been prepared to embrace the Christian Religion, indeed that before that day on which the second marriage was celebrated by the converted spouse, he himself also had given his name to Christ and received baptism." Enchir. Moral. 980; I. M. 980.

4. Ubaldus, a missionary, furnished with the faculty of dispensing with gentiles and infidels having several wives, so that after conversion and baptism they can retain whichever of them they prefer, if she also becomes faithful, unless the first wishes to be converted, using this same faculty with a certain gentile woman converted to the faith at the same time as her last husband, likewise converted to the faith, dispensed so that she might retain this man in preference to her first legitimate husband, who was in another region and persisted in infidelity, without his being interpellated as to whether he wished to cohabit peacefully and be converted to the faith.

It is asked: What is to be said to the case?

R. 1. That Ubaldus used the aforesaid faculty, not with a gentile man converted to the faith, but with a gentile woman converted to the faith, seems to deserve no blame. For in the aforesaid faculty, what is said of a man in relation to several wives is valid also with respect to a woman in relation to several husbands. S. C. de P. F., Jan. 14, 1793; Collect. n. 1317. This declaration was again given by the Holy Office, June 12, 1850; Collect. S. C. de P. F. n. 1339. Nevertheless, there is a later Decision of the Holy Office, Sept. 5, 1885; Collect. S. C. de P. F. n. 1345, which seems to suppose that the aforesaid faculty, as regards polygamy, does not also comprehend a faculty as regards polyandry. Therefore, in the case, it would certainly be safer to have recourse to the Holy See for an extension of the aforesaid faculty.

2. Nor did Ubaldus sin in this, that he used that faculty with a woman who had had several husbands not simultaneously and jointly, but successively; namely, who, the first husband having been dismissed, married another, and, this one likewise dismissed, adhered to another. For the word several in the aforesaid faculty can be understood in both ways: both simultaneously and jointly, and also successively, whether they are cohabiting or have been left. S. C. de P. F., Jan. 14, 1806; Collect. n. 1321.

3. But the question is whether Ubaldus acted rightly by dispensing from the interpellation. According to the Instruction of the Holy Office, June 11, 1760, to the Superior of the Mission of Pegu, Collect. S. C. de P. F. n. 1313, Ubaldus indeed could dispense from the interpellation, but only when there stood a true impossibility and an urgent necessity, concerning which nothing is said in the case; and after a summary process had been made, of which likewise no mention is made in the case. For the aforesaid faculty is explained thus in that Instruction: "Although on the sheet of faculties which are granted by the Holy See ... the following is read, Of dispensing with gentiles, etc. ... nevertheless ... there is not to be dispensation from the interpellation of the infidel spouse except when the infidel party is absent, and either it is not known where he or she is, or on account of distance the interpellation is rendered too difficult, and also for urgent reasons and in a case of necessity, and rarely. But the Father Superior of the Mission must diligently observe, and with every possible caution, that in each of these cases in which he will believe it necessary to dispense from the interpellation, it will not suffice that he be internally persuaded of it, but he must make a summary little process, from which this necessity may appear for every future time, either because the one interpellated does not respond, or because it is not known where he is, or because he has given proofs by the fact of his open dissent; and it will be well in such a case, lest caution be lacking, that citations also be made ad valvas et per edictum, with the assignment of a fitting time ad comparendum et denuntiandum, etc. This previous summary little process arises from the letter and the spirit of the Gregorian Brief: provided that it be established even summarily and extrajudicially, etc." Cf. Enchir. Mor. n. 980.

Outside the aforesaid case of impossibility and urgent necessity, according to the recent Instruction of the same Holy Office, March 28, 1860, Collectan. cit. n. 1297, a partial interpellation must altogether be made; for there it is said: "The infidel, if after baptism he wishes to enjoy the Pauline privilege, if he has had only one wife and she legitimate, is bound to interpellate her: 1. whether she wishes to be converted; 2. whether at least she wishes to cohabit peacefully without injury to the Creator. He will accept her consenting to both or to either, according as the laws establish. The same is to be said of a woman who would wish to be converted; and in this spouses who are infidels are judged as equals. But for polygamous infidels a special concession was made in favor of the faith, namely, that that interpellation must be made as regards the first part, that is, whether she wishes only to be converted. If the first wife refuses, he will be able to choose any one from the others, provided that she also becomes faithful, consent having been renewed. For by these words is expressed the aforesaid faculty granted to missionaries, of dispensing with gentiles, etc. Therefore to this prior wife full nuptial right is attributed; for this reason, if she is converted, she will be able to remain in legitimate wedlock, provided it be without injury to the Creator; but if he wishes to enjoy the Pauline indult, he will make the interpellation as is noted above, nor can missionaries at their pleasure turn aside from this rule, but if they find anything worthy of note to the contrary, they will most faithfully report it to the Sacred Congregation." And "whenever it is certainly established that the infidel spouse wishes neither to embrace the faith of Christ, nor to cohabit with the converted spouse without dishonor to the Creator, bishops, as delegates of the Apostolic See, and vicars apostolic, will be able to dispense upon the interpellation, provided that necessity urges and there is not sufficient time to have recourse to the Holy See." S. O., Aug. 11, 1859; Collect. S. C. de P. F. n. 1351.

And in another later Instruction of the Holy Office, June 20, 1866, Collectan. cit. n. 1354, these things worthy of note as regards the present case are had: "It is a most thoroughly established principle that a marriage celebrated, in the time of infidelity, by a man with a woman, while another was living with whom he had bound himself by an earlier marriage, is null and void, both by divine and by natural law. Hence, where it is established that an infidel man wished to enter true marriage, not simple cohabitation, with the first woman whom he took, and that no impediment of natural law stood in the way of this marriage, that first woman is to be held as a just and legitimate wife; but all the others whom, while she had not yet been removed by death, the man afterward married are to be held as adulteresses and concubines. Therefore the polygamist must retain the wife earlier in time, who alone is the just and legitimate wife, and dismiss the rest as adulteresses and concubines.... In only one case does this obligation cease, and it becomes free for the polygamist, converted to the Christian religion, to dissolve the conjugal bond of the prior and only legitimate wife, and to contract other nuptials with the woman whom he himself has preferred, namely, when there can be place for the privilege granted in favor of the faith by Christ the Lord and promulgated by the Apostle Paul.... Such is the force of the Pauline privilege, that a marriage entered into and consummated by infidels in the state of infidelity is dissolved when, one of the spouses having been converted to the faith, the other wishes neither to be converted, nor to consent to cohabit without dishonor to the Creator. Therefore it is clear, 1. that this privilege belongs only to the true and legitimate husband toward the true and legitimate wife, and vice versa. It is clear, 2. that the converted spouse cannot enjoy this privilege except after baptism has been received, and after the interpellation has duly been made to the other spouse concerning embracing evangelical truth and permitting peaceful cohabitation. It is clear, 3. that no place can exist for this privilege if both legitimate spouses are converted to the faith at the same time. But as regards the interpellation, two things besides must be noted. First, that to polygamous infidels embracing the Christian religion together with one of their concubines, it is conceded by the Apostolic See that they are bound to interpellate only concerning the purpose of conversion. The other, that with any infidels converted to the faith, by the authority of the same Apostolic See, dispensation can be given so that they omit both interpellations, whenever these either cannot in reality be made, or, if made, are judged to be of no utility, according to those things which are handed down by Benedict XIV, l. 13, c. 21, de Syn. dioec."

Also worthy of note, as regards the present case, is the recent Response of the Holy Office, Nov. 22, 1871; Collect. S. C. de P. F. n. 1356. "Whether the missionaries can use in its whole latitude the power granted universally by St. Pius V through the Brief which begins Romani Pontificis, Aug. 2, 1571. Cf. Enchir. Moral. n. 980. - R. The Brief of Pius V, of holy memory, regards the case in which the first legitimate wife is not known, and at the same time it is most difficult to find her; but in its use the rule prescribed by his successor Gregory XIII must be observed, that is, that before the neophyte is joined in marriage with another woman who has been baptized together with him, it must be established by a summary and extrajudicial process that it is in reality most difficult to find the first wife."

From all these things it appears that Ubaldus did not act rightly. For there was no question of a case of true impossibility and urgent necessity. Nor indeed, in the case, was it most difficult to find the first spouse. The cited Brief of St. Pius V. - Cf. S. C. de P. F., March 20, 1836; Sept. 26, 1837; S. O., June 8, 1836; July 4, 1855; Aug. 6, 1856; Aug. 11, 1859; March 28, 1860; June 3, 1874; Nov. 29, 1882; Collect. n. 1331, 1332, 1333, 1344, 1348, 1351, 1352, 2185, where these things are confirmed in particular cases and are still more declared. I. M. 980; Collectan. S. C. de P. F. n. 2185 ad 2; Compend. Privil. Soc. Iesu n. 388.