Case XXXVII: A Recent Papal Dispensation “Regarding a Ratified and Unconsummated Marriage.”

Miss A. R., twenty years of age, living in Linz, Austria, was married in 1894 to a Catholic young man, twenty-four years of age, in one of the parish churches of that city. After a wedding trip to Vienna, the young couple returned to Linz and took up their residence there. From the start, the marriage had not been a very happy one. Though the couple had conjugal relations, still the marriage remained "non consummatum." The husband was fully aware of this fact, but the wife, being quite innocent and ignorant of the physiology of marriage, never realized that the marriage was not consummated.

This continued for eight years. In the year 1902, the wife, in a confidential talk with a lady friend, expressed her regret that she had never been blessed with children, though she longed very much for them and prayed for them. From this lady the wife learned of the true state of affairs between herself and her husband. This friend's husband, a lawyer, hearing from his wife how things were going on between A. R. and her husband, suspected that there might be an impediment of impotency on the part of the husband, and persuaded A. R. to submit to a medical examination. The physician found that A. R. had never been violated, and that there was no fault as far as she was concerned, because she was perfectly capable of consummating the marriage.

Upon this testimony of the physician, the wife immediately began proceedings in the civil court against her husband, with the view of being divorced, because there was a nullifying impediment of impotency from the start, and the civil law grants divorces for that cause.

The court ordered two of its own physicians to examine the wife, and their testimony, under oath, agreed with the testimony of the first physician who examined A. R., namely, that she had never been exposed. On April 25, 1902, the civil court pronounced the marriage invalid, and authorized A. R. to contract a new marriage, if she so desired.

On the advice of the physicians, the court would not affirm that there was an impediment of absolute impotency on the part of the husband, but it did affirm that the evidence left no room to doubt that there was an impediment of relative impotency proven against the husband.

On being informed of the decision of the court, the husband appealed the case. The court of appeal held that by continuing to live with her husband after she had learned of his impotency, she had forfeited her right to a divorce, under the act. The case was then taken to the highest court in the land, which sustained the findings of the first or lowest court, and granted a full divorce "a toro et a vinculo," on September 2, 1902. This ended the proceedings, as far as the civil law was concerned. The marriage was declared null and void, and was ordered so entered in the marriage records of the parish church.

In the same month of September, 1902, the now civilly divorced wife, A. R., appeared in the Bishop's court, in order to have her marriage annulled also by the Church authorities.

The Church authorities, however, were not long in realizing that it would be very difficult to institute canonical proceedings to establish the original invalidity of the marriage, since the husband refused to appear in the Bishop's court, and wholly ignored the summons to do so. He said that, as far as he was concerned, the civil authority had annulled his marriage with A. R., and that was quite sufficient. He considered any action by the Church authorities superfluous, and refused to aid in any manner whatsoever their proceedings. As there was no way of compelling him to appear and testify in the Bishop's court, the Church authorities were obliged to proceed without his testimony. The only way open to them seemed to be to procure a papal dispensation "super matrimonio rato et non consummato." This course appeared advisable, because, even though the husband had refused to appear or testify, the civil law had accepted the evidence submitted by the physicians as to the inviolated condition of the wife, and had pronounced the marriage invalid, even though the husband had not been examined.

Accordingly, two physicians and seven witnesses (testimonium septimae manus) were placed under oath to examine the wife, while the wife herself was put under oath to testify. The wife gave the same testimony about her married experience that she had given in the civil court. The two physicians swore to her inviolated condition. The seven witnesses could say nothing about her married life, since she had never spoken to them about it, but they all declared that they knew her intimately, as they were her next of kin, and that she was a pious, pure, and truthful person. There was no testimony "septimae manus" concerning the husband, since no witnesses could be procured who knew him sufficiently well or intimately to justify them in giving witness in his case. As the plaintiff had urgently besought the Bishop's court to give a decision with all possible despatch, since she had no means of support, and must in the meantime look to her mother for assistance, who also was poor, the Bishop presumed the permission of the Holy See to institute a canonical trial "de matrimonio inquirendo," which course was afterward approved by the Holy See. A full account of both trials, together with all the documents and papers in the case, and the sworn testimony of the witnesses, was forwarded to the S. Congregation of the Council at Rome, November 1, 1902. The following reasons were urged why the Holy See should grant a dispensation in the case:

1. The poverty of the petitioner, who had now the opportunity of contracting a new marriage, and thus providing for herself, whereas, if a new marriage were made unlawful for her, she would be obliged to go to work as a servant, or become a burden to her mother, who was without means to help her.

2. The danger to which she would be exposed of losing her faith—a danger which was real and present, by marrying a non- Catholic, or contracting a civil marriage, which was her privilege under the civil law.

3. It was further urged that there would be no "scandalum aut admiratio fidelium" to fear, since the decision of the civil court was already known, and a favorable rather than unfavorable decision was likewise expected from the Church authorities.

All through the winter of 1902-3 private means were taken to urge the authorities in Rome to act with expedition, and finally, in the beginning of May, 1903, word was received that the case would come up for consideration in the session of the S. Congregatio Concilii on the 16th of May. And so it did. After a thorough investigation of the whole trial by a learned Canonist and the "Defensor vinculi," both of whom approved the finding of the court, the following Dubium was laid before the Sacred Congregation:

“Whether His Holiness is to be advised to grant a dispensation from a ratified and non-consummated marriage in this case?”

The Congregation replied:

“After prior ratification of the acts (because authorization had not been obtained beforehand by the Bishop’s court from the Holy See to institute proceedings), affirmative as a precaution.”

The Cardinal Perfect of the Sacred Congregation laid this reply of the Congregation before the Holy Father on the 18th of May, who then granted a dispensation "super matrimonio rato et non consummato." On June 8 following, A. R. contracted a new marriage with the approval and blessing of the Church.

The case provoked no public criticism or comment of any kind, and was not even mentioned in the newspapers. In some private circles, especially in one sewing circle, considerable gossip was indulged in. But the fact that A. R, even after eight years of married life, was declared by competent physicians to have preserved herself inviolated, shamed busy tongues into silence.

Had A. R. been rich instead of poor, much comment might have been occasioned as to the power of money to purchase dispensations.