Point VII. On the Impediment of Disparity of Worship

Disparity of worship is understood in general as a diversity of religion between the contracting parties. But here it is properly understood as the disparity which intervenes between a baptized and a non-baptized person. Nevertheless, we shall also speak here of disparity of worship between baptized persons contracting matrimony, or of mixed marriages.

824. Principles. - I. Disparity of worship which exists between a baptized person and an unbeliever or non-baptized person renders matrimony invalid. Thus from unwritten law, that is, from custom having the force of law ¹. - See St. Ligorius, no. 1044. - This is established from the common doctrine of the Holy Fathers and theologians ², and Benedict XIV asserts that it is well established in the letter to the Cardinal of York, section 10.

¹ Since this impediment seemed to rest upon custom, but custom has no force in places in which, far from having become prevalent, it has not even begun, this gave rise to the fact which Diana (volume 6, treatise 1, resolution 15, no. 2), Verricelli (On Matrimony, question 175, no. 6), Clericatus (On Matrimony, decision 26, no. 23), and, after them, Benedict XIV (constitution Singulari Nobis, February 9, 1749, section 19) relate: that certain grave theologians, among whom was Lessius, in a consultation held at Rome, judged that disparity of worship among the Chinese and Japanese in those beginnings of conversion was not a diriment impediment, and that in these circumstances the bishops there could suspend the promulgation of the law. But, as Benedict XIV adds (ibid.), an end was placed upon the question by decreeing that the custom's not having been received could bring it about that, when the Chinese and Japanese began to embrace the Catholic faith, the Holy See could give the Apostolic Vicars a faculty by which they might dispense them from the impediment of disparity of worship. Benedict XIV further relates from documents printed at Paris in the years 1627 and 1676 that this faculty was granted; and several grants of this kind may be seen in Father Perrone (On Matrimony, book 2, section 1, chapter 7, article 2).

Moreover, since the Holy See under Clement XIII, through an instruction sent to missionaries from the Congregation of the Holy Office, prescribed that if marriages between Catholics and unbelievers happened to have been contracted without a dispensation, the consent would afterward have to be renewed, it is clear from this that there too this impediment was thereafter held to be diriment.

² Namely, the theologians establish not only from the doctrine of the Fathers but also from Sacred Scripture that marriages of this kind are prohibited by both the natural law, the positive divine law, and also the canons of the Church, and thus are illicit. Concerning this matter see Sanchez, book 7, disputation 71, and Schmalzgrueber, book 4, title 6, nos. 121-124. But at the same time they admit that from none of these sources can it be gathered that those marriages are also invalid; and, as Benedict XIV says in the constitution cited by the Author, since that impediment was not established by Canon law, it remains that it be found to have been received and confirmed by the common custom of the Catholic Church.

II. A diversity of religion between baptized persons does not constitute a diriment impediment. This is proved from the fact that marriages between Catholics and heretics are declared invalid by no law or custom. - Thus the unanimous consent of the theologians.

III. A diversity of religion between Catholics and heretics or apostates constitutes an impeding impediment. This is gathered both from the practice of the Church, which has always turned the faithful away from these marriages with the greatest solicitude, and from the express Declaration of Benedict XIV, who calls these unions detestable, which Holy Mother Church has perpetually condemned and forbidden. Bull Matrimonia, concerning the marriages of Holland, November 4, 1741.

825. Questions. - QUESTION 1. By what law is matrimony between baptized and non-baptized persons invalidated?

Reply. It is certain that it is invalidated by ecclesiastical law alone ³. For in the first centuries of the Church this impediment did not exist, and several marriages of this kind are read of as approved in ecclesiastical history, such as the matrimony of St. Monica with Patricius ⁴. - This is also confirmed from the Declaration of Pius VI in the letter to Cardinal de Frankenberg, Exequendo, July 23, 1782 ⁵.

³ Catharinus with a few others cited by Sanchez (book 7, disputation 71, no. 6) preferred to hold that these unions are invalid by divine law; Schmalzgrueber reports and refutes their reasons (book 4, title 6, no. 126 and following). For the Doctors who support the opposite common and true opinion, see Sanchez, l.c., no. 7.

⁴ See several examples of this kind, and testimonies of the Holy Fathers concerning the same matter, in Schmalzgrueber, book 4, title 6, nos. 120-125.

⁵ The Declaration of Pius VI does not concern the impediment invalidating marriages between believers and unbelievers, but the impeding impediment between Catholics and non-Catholics.

826. • QUESTION 2. To whom belongs the faculty of dispensing from such an impediment?

Reply. To the Roman Pontiff alone, with bishops altogether excluded unless they have obtained this faculty from the Supreme Pontiff. Yet it was never granted to them by the Holy See, although they petitioned for it most urgently, as Pius VII testifies in the letter Vix nova of February 17, 1809, to the bishops of France ⁶.

⁶ The reply of the Author, as is evident, concerns only marriages of Catholics with non-Catholics; for we already said in the note to the preceding number that, among barbarous nations, the faculty of dispensing in marriages of Christians with unbelievers had several times been given to bishops, Prefects of Missions, and missionaries among those peoples. See Perrone, On Matrimony, book 2, section 1, chapter 7, article 2.

827. • QUESTION 3. Under what conditions is the aforesaid dispensation granted?

Reply. Three things must be present: 1. that the danger of seduction be absent for the Catholic party; 2. that the children of both sexes to be born of the matrimony are to be educated in the Catholic religion; 3. that there be a grave reason. These are established from the practice of the Church. See the letter of Gregory XVI to the Archbishop of Freiburg, May 23, 1846. Hence the error is evident of those who believe that they satisfy God and the Church if they instruct sons in the religion of the father and daughters in the religion of the mother ⁷.

⁷ These things likewise concern only a dispensation for marriages between Catholics and non-Catholics. But from several Instructions, which you also have in Father Perrone (On Matrimony, book 2, section 1, chapter 7, article 2), the following conditions are found prescribed as to be observed in dispensations concerning marriages between Christians and unbelievers: 1. that cohabitation with the unbeliever would bring neither insult to the Creator nor danger of perversion; 2. that the offspring would be instructed in the Christian religion; 3. that a dispensation would be granted only in places - understand a Province, Vicariate, etc., but not a village in which there might happen to be more Christians - where there were more unbelievers than Christians; 4. that the dispensation would be granted only for grave causes, so that a dispensation would rather be given from impediments of consanguinity or affinity if marriages with unbelievers were avoided by this means; 5. it is sometimes added that there be a probable hope of the conversion of the unbelieving contracting party.

828. • QUESTION 4. Is a matrimony entered between Catholics and heretics valid if, after a dispensation has been obtained, the heretical party is unwilling to acquiesce in the condition imposed by the Church, namely, that the children OF BOTH SEXES be educated in the Catholic religion?

Reply. Yes. For there is question of a merely impeding impediment, and consequently this condition does not affect the validity of the matrimony.

QUESTION 5. Can the Pastor assist at a mixed marriage if a dispensation has intervened?

Reply. Yes. Thus the Sacred Congregation of the Inquisition replied on December 20, 1838: If the other party is Catholic, a dispensation having been obtained from the impediment of mixed religion and the customary clauses and conditions having been observed, it is lawful.

829. • QUESTION 6. How ought the Pastor to conduct himself in these circumstances?

Reply. The celebration of the matrimony ought to take place before the Pastor and two witnesses according to the prescriptions of the Holy Council of Trent, but outside the church, under which the sacristy is included, and without the blessing of the Pastor. These are the very words of the instrument of dispensation composed concerning the impediment of mixed religion according to the instruction of the Sacred Congregation of the Inquisition. It is also established from the Decision of the Holy Office of November 25, 1838. Hence it is evident that the Priest cannot then wear the stole and surplice ⁸.

⁸ Nevertheless, in the Instruction of November 15, 1858, given by order of Our Most Holy Lord Pope Pius IX to all archbishops, bishops, and local ordinaries concerning mixed marriages, the following is contained concerning the present matter: But if in some places the sacred Prelates recognize that the same conditions cannot be fulfilled without graver losses and evils arising from them, in this case alone His Holiness, for avoiding greater losses and evils of this kind, commits to the prudent judgment of the same sacred Prelates that they themselves, while the cautions concerning removing the danger of perversion from the Catholic spouse, concerning the conversion of the non-Catholic spouse being sought as far as possible by the Catholic spouse, and concerning all the offspring of both sexes being educated altogether in the holiness of the Catholic religion always remain firm and are most diligently observed, judge when the aforesaid conditions of contracting these mixed nuptials outside the church and without the blessing of the Pastor cannot be fulfilled, and when in entering these mixed marriages the custom of employing the rite legitimately prescribed in the Diocesan Ritual for marriages to be contracted can be tolerated, the celebration of Mass, however, always being excluded.

QUESTION 7. Can the banns be proclaimed?

Reply. No. This is established from the same instrument, in which one reads: the proclamations being omitted. It is also confirmed from the letter of Pius VI cited above to Cardinal de Frankenberg.

830. • QUESTION 8. Can the Pastor assist at the matrimony if both parties are unwilling to consent to the Catholic education of the offspring, but the heretical party altogether demands that the offspring of his or her sex follow his or her religion?

Reply. No; rather, he ought to abstain from every intervention. Thus the Sacred Congregation of the Inquisition, June 17, 1829 ⁹.

⁹ But in the instruction added to the Letters of Gregory XVI given to the Primate and Bishops of Hungary on April 20, 1841, the following is contained: His Holiness declared that it can be tolerated that, whenever, from the condition of times, places, and persons, a matrimony of a non-Catholic man with a Catholic woman, and conversely, although the necessary cautions have been omitted, cannot be impeded without graver danger, and moreover it appears expedient for the utility of the Church and the common good that it, although forbidden and illicit, be contracted before a Catholic pastor rather than before a non-Catholic minister, to whom the parties would easily have recourse, the same Catholic pastor, or another priest acting in his place, may be present at the matrimony with material presence only, no ecclesiastical rite being employed, just as if he acted only as what they call a qualified or authorized witness, namely, so that after hearing the consent of each spouse he may thereafter, by reason of his office, enter the validly performed act in the register of marriages. Reported by Roskovany, volume 2, page 818.

QUESTION 9. If a dispensation from the impediment of mixed religion has not been obtained, can the Pastor assist if the law prescribes his assistance?

Reply. This regularly cannot be done unless the Pastor intervenes as a civil magistrate. Thus the Sacred Congregation of the Inquisition, December 20, 1838. Nevertheless, the Supreme Pontiffs are accustomed to permit assistance of this kind where necessity requires it, provided that the promise of each party concerning the education of the offspring in Catholicism has first been altogether required. Thus Pius VII granted to Pastors who were living in Russia and Germany the faculty of assisting, if they were compelled, at mixed marriages entered without a dispensation having been obtained. Nevertheless, the presence of the Pastor does not prevent the spouses contracting in this manner from sinning gravely. Gregory XVI confirmed this.

QUESTION 10. Can a Catholic who contracts these nuptials without a dispensation afterward be admitted to the Sacraments when he wishes to partake of them?

Reply. Yes. This is established from the cited letter of Pius VI to Cardinal de Frankenberg, in which the following is contained: To this we say that, when he demonstrates that he repents of his sinful union, this can be granted to him, provided that before confession he sincerely declares that he will procure the conversion of his heretical spouse, renew his promise concerning the education of the offspring in the orthodox Religion, and repair the scandal given to the other faithful. If such conditions concur, We do not oppose the Catholic party becoming a participant in the Sacraments.

QUESTION 11. Can a Catholic Priest, with a safe conscience, assist at the matrimony if the spouses also contract matrimony in a Protestant church according to the Protestant rite, either before or afterward?

Reply. No. - Thus the Sacred Congregation of the Inquisition, April 21, 1847 ¹⁰.

¹⁰ Concerning those who in these circumstances celebrate matrimony without the presence of the Pastor in places where the form prescribed by the Council of Trent is in force, Pius VIII decreed thus in letters given to the Archbishop of Cologne on March 26, 1830: But now by these Our Letters We will and command that mixed marriages which hereafter happen to be contracted in your Dioceses without the form prescribed by the Council of Trent being observed, if no other canonical impediment obstructs them, be held as ratified and true marriages; as We by Our apostolic authority declare and decree that those marriages are true and ratified.

831. • QUESTION 12. Are Calvinists and Lutherans living in places where Baptism is doubtful and suspect to be regarded as unbelievers, so that the diriment impediment of disparity of worship is considered to exist between Catholics and them?

Reply. The Congregation of the Holy Office itself replied thus to this question on November 17, 1830:

1. As regards heretics whose sectarian Rituals prescribe the conferral of Baptism without the necessary use of the essential matter and form, the particular case must be examined.

2. As regards others who baptize validly according to their Rituals, Baptism must be considered valid. But if doubt persists even in the first case, Baptism must be considered valid in relation to the validity of the matrimony.

3. But if it is certainly known that there is no Baptism according to the present custom of that sect, the matrimony is null.

On the same day and feria, Our Most Holy Lord Gregory XVI, Pope by Divine Providence, in the customary audience granted to the Reverend Father Assessor of the Holy Office, approved the aforesaid resolution rendered by the Most Eminent Fathers.

The aforesaid Decision was renewed by the same Sacred Congregation of the Inquisition on July 20, 1840.

Hence it appears that the following must be established:

1. In a doubt concerning the validity of Baptism, the validity of the matrimony is generally to be presumed ¹¹.

¹¹ Indeed, validity must be retained according to the decree cited above. For the Church is then considered to dispense if perhaps the Baptism was in fact not valid.

2. If there is question of a matrimony to be celebrated between Catholics and one party certainly lacks Baptism, it is evident that this Sacrament must be conferred upon that party before the matrimony. But if the matrimony has already been celebrated with this defect, it must be revalidated after Baptism has been conferred.

3. Finally, if there is question of an invalidly baptized heretic in relation to a mixed marriage, recourse must be had to the Holy See ¹².

¹² Since this matrimony is certainly invalid, if the spouses cannot be separated and the other party is unwilling to receive Baptism, it remains that a dispensation be sought.