Case XXX: Mixed Marriages Under the New Decree

Applied correction from Woywod's opening insert: Case XXX, page 141.—It is stated here that marriages between a Protestant and a Jew would be invalid in the eyes of the Church on account of the diriment impediment of disparity of cult. Such is the rule until the New Code goes into effect. The Code makes disparity of cult a diriment impediment only for a marriage of a non-baptized party with a person baptized in the Catholic Church or converts to the Church from heresy and schism. Canon 1070.

^* See also page 190.

In discussing mixed marriages the law that prevailed before August 2, 1907, must be considered, because if a conversion of one or both parties has taken place after the marriage, the validity of the union is to be judged in accordance with the old law if the marriage took place before Easter, 1908.

Those non-Catholics who, according to the decree Ne temere, do not need the Catholic form for the validity of their marriage, do not even seem to require it for its lawfulness, because it is said in Num. XI, Par. 3, of the decree: Nowhere are they bound to the Catholic form of marriage. If in the following discussion briefly the presence of the Catholic parish priest is demanded, let it be understood that there must be also at least two witnesses present.

(a) Catholics and Protestants (schismatics).

Under mixed marriages, in the actual and usual meaning, are understood unions between Catholics and Protestants (schismatics). If no impediment prevails and the lawful form was observed, such marriage without dispensation is valid, but unlawful. In regard to the question whether the Tridentine form (Catholic parish priest and two witnesses) was required for valid marriage, there had to be distinguished (before the Ne temere) two cases:

(aa) In Tridentine territory mixed marriages without Catholic parish priest and witnesses were invalid.

(bb) For certain countries, either disputed territory or difficulties prevailing, papal decrees had created special conditions; so, for instance, for Hungary and Germany.

(cc) In territories where Tametsi had not been promulgated, or was not in force, marriages between Catholics and Protestants (schismatics) were valid, but unlawful.

After the decree Ne temere the distinction between Tridentine and non-Tridentine territory disappears. The law is now: Marriages between Catholics and Protestants (schismatics), in order to be valid, must be contracted before a (any) Catholic parish priest (or Bishop) and at least two witnesses. Such marriages are still valid without this prescribed form in a territory for which the Apostolic See has decreed special laws. Hence, for instance, the special law referred to remains in force for Germany notwithstanding the new law, Num. XI, Par. 2, of the decree of August 2, 1907.

In accordance with the jus commune ecclesiae, the proper form of assisting at mixed marriages by a Catholic parish priest was passive assistance, even when dispensation has been obtained. This passive assistance has received by the new decree an important moderation, which makes requisite for the validity of the marriage the requirere of the consent (Num. IV, Par. 3, of the decree). Hence in my opinion the passive assistance will hereafter merely mean omission of the ceremonies, avoidance of the locus sacer and of ecclesiastical vestments.

(b) Catholics and Apostates.

Apostasy is the complete abandonment of the Christian faith, whether or not there is joined to it the embracing of Judaism, paganism or any other form of cult; he also is an apostate who, after falling away from Christianity, joins no other community, but, without following any particular religion, lives as Deist, Atheist, Pantheist, or Free Thinker (Aichner, Compend. Jur. Eccles., 1890, p. 774). At all events an apostate can be only one who has been validly baptized as Catholic, Protestant, or schismatic Christian. By the word apostate is usually understood only one who was a Catholic; but the term would likewise hold good in the case of one who left another Christian community. It is erroneous to use the word apostate in the instance of a Catholic who embraces Protestantism; the correct term in such a case is heretic.

Marriages between Catholics and apostates were under the old Church law dealt with the same as those between Catholics and Protestants. The new decree makes distinction between apostates who before their apostasy were Catholics, and those who previously were Protestants (schismatics). The marriage between a Catholic and an apostate from Catholicism, in order to be valid, must, in every case and everywhere, be performed before a Catholic parish priest; the form of this marriage is in regard to its validity subject to the same requirements as marriages among Catholics (Num. XI, Par. 1, of the decree); dispensation is necessary for its lawfulness.

On the other hand a marriage between a Catholic and an apostate from Protestantism is governed by the rules for mixed marriages, hence in places where such provision has been made by special laws of the Church, it can be validly contracted even without a Catholic parish priest (Num. XI, Par. 2, of the decree).

A person originally heretic or schismatic, then converted to the Catholic religion, and finally turned apostate, is to be treated like an apostate from Catholicism, hence his or her marriage with a Catholic is to be dealt with the same as a marriage between Catholics (Num. XI, Par. 1, of the decree). Dispensation is referred to above.

(c) Protestants and Apostates.

Inquiry into the validity of marriage between Protestants and apostates will be in order for the Catholic priest if one, or both, parties, after the marriage, join the Catholic Church. We omit here to take into account the question of validity of a Protestant baptism.

Marriages between Protestants and apostates were, under former rules, treated the same as marriages between heretics (Protestants). The decree Ne temere makes, here again, the distinction between apostates from Catholicism and such from Protestantism (schism). A marriage between a Protestant and an apostate from Catholicism is regarded similar to a mixed marriage between Catholics and Protestants and to be valid must therefore be performed before a Catholic parish priest (except in exempted territories) (Num. XI, Par. 2, of the decree). The marriage of a Protestant with an apostate from Protestantism is valid everywhere without regard to the presence of a Catholic parish priest (Num. XI, Par. 3, of the decree).

(d) Catholics and Jews.

A marriage between Catholic and Jew does not come, according to Canon Law, under the head of a mixed marriage in its technical sense, but is classed as a marriage between baptized and unbaptized. Without a dispensation not only would such a union be unlawful, but even invalid, on account of the impediment disparitatis cultus.

Before the decree Ne temere it was a mooted point whether or not the Tridentine form was requisite for the marriage between Catholic and Jew. Many canonists held that, as the Jew was not bound by the laws of the Tridentine Council, his or her exemption would be shared by the Catholic party to the marriage, and therefore such marriage would be valid even without a Catholic priest, provided the Church had previously dispensed from the impedimentum disparitatis cultus.

By the new law of August 2, 1907, marriages between Catholics and Jews are viewed like mixed marriages, therefore the ceremony in order to be valid is to be performed before a Catholic parish priest (for certain exempted districts exceptions are made) (Num. XI, Par. 2, of the decree).

The manner of performing the ceremony would be, as in mixed marriages and in accordance with the jus commune (regardless of the secured dispensation) the passive assistance in its technical sense (Acta S. Sedis, 1907, p. 571). Our remarks above, about the moderation by the new law of this passive assistance in the case of mixed marriages, will also apply here. Commonly there hardly ever occur dispensations ante matrimonium in such cases; they do occur, however, for the validation of a civil marriage, or, on the deathbed, of a concubinate.

(e) Protestants and Jews.

As in other instances of marriages among non-Catholics the question of validity may come up if after the ceremony one or both parties enter the Catholic Church. In accordance with the previous law a marriage between Jew and Protestant could be validly entered, without regard to the Catholic priest, in all those cases where the Protestant party was not bound by the Tridentine form. But even if the Protestant party was bound, many canonists claim that the exempt Jew would impart to the Protestant party his exemption.

The decree Ne temere demands for the marriage between Protestant and Jew in no case and nowhere the presence of a Catholic parish priest (Num. XI, Par. 3, of the decree).

In facto such marriages will be invalid, nevertheless, because of the impediment disparitatis cultus.

(f) Apostates and Jews.

An apostate, according to former Canon Law, was treated in regard to the form of marriage the same as a heretic (Protestant), hence the same regulations, which heretofore governed marriages between Protestants and Jews, applied also to alliances between apostates and Jews. Whether the apostate before his apostasy was Catholic or Protestant made no difference according to the old law.

The new decree makes again a distinction between apostates from Catholicism and such from Protestantism. The former can be validly married to Jews only before a Catholic parish priest (except in exempted territories) (Num. XI, Par. 2, of the decree). Apostates from Protestantism can, always and everywhere, be validly married to Hebrews without a Catholic parish priest (Num. XI, Par. 3, of the decree). The impediment of disparitatis cultus applies here and hence such marriages are invalid in facto, a dispensation not having taken place.

(g) Catholics and Infidels.

Here is to be ascertained, first of all, whether the infidel party was formerly either a Catholic, a Protestant (schismatic), Hebrew, or has grown up from childhood without Baptism and religion. The previous law treated an infidel who was formerly Catholic or Protestant in the same way as a heretic, and marriages therefore between a Catholic and a baptized infidel were classed with marriages between Catholics and Protestants. The infidel formerly a Jew, and those from childhood without Baptism and religion, were viewed as unbaptized, and to these the same rules applied as in marriages between Catholics and Jews.;

The papal decree of August 2, 1907, deals more rigidly with the infidel formerly a Catholic than with others. Marriages between Catholics and Catholics become infidels are only valid, everywhere, when performed before a Catholic parish priest (Num. XI, Par. 1, of the decree). The impediments are to be considered. A dispensation is necessary for lawful marriage. Catholics and other infidels (who were not Catholics) can as a rule only be validly married before a Catholic parish priest, special laws for certain localities and territories allowing of exceptions (Num, XI, Par. 2, of the decree). The impediments are of course not to be overlooked.

• (h) Protestants and Infidels.

Before the decree Ne temere an infidel formerly a Catholic was viewed in regard to marriage the same as a heretic. Hence in regard to the form of marriage, alliances of Protestants with infidels who had previously been either Catholic or Protestants were classed with marriages among heretics, and to marriages between Protestants and unbaptized infidels the same rule was applicable as to marriages between Protestants and Jews.

The new law discriminates also in this case against the infidel who has been a Catholic. A marriage between such an infidel and a Protestant can as a rule be validly performed only before a Catholic parish priest, but in certain exempt districts and localities the validity of such marriage is recognized by Rome also without the assistance of a Catholic priest (Num. XI, Par. 3, of the decree). The impediment of disparitas cultus between baptized and unbaptized would have to be removed.

(i) Jews and Infidels.

In the sense of the old law a marriage between a Jew and an infidel who had been Catholic or Protestant, was classed with the marriage between Jew and Protestant. The marriage of a Jew with an unbaptized infidel was, as a marriage between unbaptized, not bound by ecclesiastical law and was valid always and everywhere without a Catholic priest.

The new law has again a separate regulation for the infidel formerly a Catholic. Unions between Jews and infidels formerly Catholics are valid only when the ceremony is performed before a Catholic parish priest (subject to territorial exemptions) (Num. XI, Par. 2, of the decree). Jews and infidels other than former Catholics can enter into a valid union everywhere without a Catholic priest (Num. XI, Par. 3, of the decree). The impediment of disparitas cultus is to be removed.

Alois Schmöger, D.D.