§ II. On the Firmness of Matrimony

A twofold firmness of Matrimony is distinguished: for one regards the bond, the other the bed.

1550. - Matrimony is indissoluble, i.e. once Matrimony has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. It is proved: 1° from the words of Christ⁴: Therefore now they are not two, but one flesh. What therefore God has joined, let not man separate. 2° From the words of the divine Paul⁵: But to those who are joined in Matrimony I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, that she remain unmarried, or be reconciled to her husband. And let not the man dismiss his wife. 3° From Trent.¹ Cf. n. 456. 9°, and n. 1053. q. 2°.

1551. - Nevertheless a threefold case is to be excepted; for:

1° Ratified and non-consummated Matrimony of Christians can be dissolved, for a most grave cause, by dispensation of the Pope, from power divinely conceded to him. This is clear from this, that the Supreme Pontiffs have already very many times used this power, as can be seen in the illustrious Feije.² Nevertheless dispensation is not granted unless full proof is exhibited to the Holy See that the Matrimony has not been consummated, and sufficient causes are alleged. - The Acta³ hand down what particular causes today are held sufficient. But the consent of the other party is not needed. - Non-consummation is to be proved judicially, yet only summarily. On this matter the Collectanea juris missionis⁴ will usefully be consulted.

2° Ratified and non-consummated Matrimony of the faithful can be dissolved by solemn religious profession⁵ of one spouse entering Religion within the first two months, and this from a special privilege conceded by Christ and declared by the Church.⁶ Cf. also the things to be said in this number under 3°. 9.

I said: within the first two months. Namely, that the spouses may deliberate concerning the use of this privilege, the two months after the nuptials are conceded to them by the Law itself⁷ (it can be prolonged by the judge, the cause being known), during which time they are not obliged to render the debt, provided nevertheless that Matrimony perhaps is not necessary for repairing scandal or the honor of the bride.⁸ - Fornication had between the betrothed persons before the celebration of Matrimony does not impede this privilege, if nothing else obstructs. - Nevertheless he sins in kind who contracts Matrimony with the intention of entering Religion, without warning the other party.⁹

See several other things pertaining here, if you like, in the illustrious Feije.

3° Even consummated Matrimony of infidels¹ can be dissolved from divine concession when one of the spouses is converted to the Christian Faith² through the reception of Baptism, and the other, having been interrogated, refuses peacefully to cohabit with that one, or does not cohabit except with injury of the Creator and contempt of the Christian Religion, or applies an attempt to pervert the faithful party. This is deduced from the Declaration of Innocent III.³ But this divine concession is drawn from the words of the Apostle⁴: If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her; ... but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such things: but God has called us in peace.

Many decrees and decisions⁵ of the Supreme Pontiffs and of the Sacred Congregations exist on this matter. From these with the theologians we conclude:

1. (a) When, after true Matrimony entered in the infidelity of each party, one party or each is converted and baptized, the Matrimony remains valid, and there is no need of new consent. - (b) If there was not a true Matrimony between them, the converted person can enter Matrimony either with that same person, but first baptized and (as regards liceity) Catholic, or with any other baptized and Catholic person, with mutual consent first offered and with those things observed which elsewhere we shall set forth concerning clandestinity.

2. If an infidel has several women, or respectively men, then either after conversion he does not remember which one he first took, and he can, mutual consent first having been offered in due form, retain one of those with whom he truly wished to be joined in Matrimony; or he remembers which one he first took, in which case apply to this one what was said under 1. (a). Yet in this hypothesis there can be place for the case of the Apostle. - But if an infidel, having several women, entered true Matrimony with none, after conversion he can contract with any baptized and Catholic woman, with mutual consent having been offered in due form.

3. When one party has been converted and baptized, the unbelieving one is to be interrogated whether that one wishes either also to be converted to the Faith, or at least to cohabit without contumely of the Creator. If the unbelieving one refuses to do either, or after cohabitation changes mind, or departs without fault of the faithful one (such as, e.g., adultery of this person after Baptism would be [see under 6]), this faithful one will be able to enter a new Matrimony. - But that the unbelieving person can truly be said to wish to cohabit without contumely of the Creator, it is necessary that he not draw the converted party to mortal sin; that he desist from concubinage in which, e.g., he was already living before the conversion of the other party; that he not bring troubles upon the Religion of the converted person or the Catholic education of offspring, etc.¹

But Matrimony entered in infidelity is not dissolved except at the very moment in which another valid Matrimony is contracted.

4. The faithful party cannot, without dispensation, validly enter a new Matrimony except with a party already baptized; otherwise there would be present the diriment impediment of disparity of cult, from which Bishops, by force of faculties Form D. n. 3 (T. I. p. LXXIV.), cannot dispense, and the Holy See does not dispense except for most grave causes.² Besides, that a new Matrimony be licitly entered, it must be contracted with a Catholic woman. By dispensation, indeed, it could licitly be contracted with a non-Catholic, but concerning this dispensation also what was said around disparity of cult is valid.

But when a faithful person by dispensation has contracted Matrimony with an infidel, and that one thereafter refuses to cohabit peacefully and without contumely of the Creator, Kenrick³ thinks that there is place for the case of the Apostle; but the contrary is certain from the Holy Office, June 14, 1708; August 1, 1759, to 4; year 1854, Dub. II, to 2; August 21, 1878.

5. The interrogation of the infidel:

a) Is altogether necessary (even if in reality it could not be made or would be useless), and that one's response, with a competent term fixed for the same, must be had, so that one can proceed to new nuptials, unless dispensation has been made by the Holy See, or among us, in the case set out p. LXX. 11, by the Bishop. Yet Bishops will be permitted to use this faculty only according to the norm of the Brief Populis of Gregory XIII. In this case it suffices to interrogate concerning the will of conversion.¹

b) It is to be made: in the presence of two witnesses; by the converted person himself or by another in his name, with the Ordinary intervening; the purpose of the converted person being notified (in the case in which the unbelieving person is going to refuse both conversion and cohabitation without injury of the Creator) either of passing to other nuptials, or, if this is the person's intention, of entering Religion, receiving Sacred Orders, or living in celibacy.²

c) Dispensation from the interrogation can be obtained from the Holy See as often as the unbelieving person, after being interrogated, has not responded within the time prefixed, or cannot be interrogated; for instance because it is unknown where that one is living, whether still alive, or because it is judged morally impossible that due interrogation should reach that one, or because from the interrogation most grave inconveniences are feared. But concerning these things it must be clear by summary process, the omission of which nevertheless renders the nuptials only illicit, if it is clear to the delegate for dispensing concerning the circumstances rendering interrogation impossible or difficult or useless.³

d) If a new Matrimony with a faithful person, the interrogation having been omitted or the response not having been received, had been celebrated without permission of the Holy See, this See alone could define whether one may remain in it.⁴

e) The interrogation is to be made (or dispensation from it sought) after Baptism,⁵ and it cannot be made before Baptism except for a grave cause and with previous permission of the Holy See.⁶

6. The privilege of the Faith remains to the converted party, even if because of adultery or another criminal cause posited by that party before conversion, the unbelieving one denies cohabitation; for crimes committed before Baptism can never be objected.

But adultery committed in infidelity by the party who, having been interrogated, wishes indeed to cohabit without injury of the Creator, but not to be converted, does not furnish to the converted person the faculty of a new marriage; nevertheless, in that case this converted person is not held to cohabit with the unbeliever, although asking pardon, as will be clear from things to be said n. 1552. III. under 3°.¹

7. After a new Matrimony has been entered by the faithful person, the unbelieving party, if thereafter also converted, can contract Matrimony with another Catholic. - But whether, if the person remains an unbeliever, he can enter a new Matrimony with another, even an unbeliever, is disputed.² "Today," says Feije, "the common doctrine is that in this case the unbeliever enters Matrimony with another unbeliever both validly and licitly."

8. But if the faithful person has not entered a new Matrimony, the unbelieving one invalidly marries another, nor can Baptism be conferred upon that one if afterwards converted, unless, with adulterous bonds cast off, the person has separated from the new party. Holy Office, January 23, 1805. And this is true even if this new party also is converted, and the prior spouse consents.

9. The converted person who has not entered a new Matrimony cannot after the conversion of the other party enter Matrimony with another; indeed from charity³ he is held to return to the other party if otherwise this person's conversion would be endangered. Is he also held from justice? It is disputed.⁴

But what if the other party is converted after the party first converted has either professed Religion, or received Sacred Orders, or even only vowed perpetual chastity?

Resp. Without pontifical dispensation, or, if among us there were question of only the simple vow of chastity, without dispensation of the Bishop, he cannot return to the other party.

Note. - If among us one of the three cases occurs in which, according to the things said in this number, Matrimony can be dissolved, prudence will require that, before the free party pass to other nuptials, civil divorce be obtained. (6), p. 394.

1552. Principles. - I. By reason of the Matrimonial bond spouses are held to cohabit together and to lead a social life. The reason is drawn from the very definition of Matrimony.¹

II. Nevertheless divorce, or separation from bed or habitation, can be made for grave causes, while the conjugal bond remains nonetheless, so that neither party can enter another Matrimony before the death of the other. This is declared by Trent.²

III. Causes giving honor to a divorce of this kind are: mutual consent, grave danger of soul or body, and adultery or heresy of either party (concerning which see n. 1521. 10°); you will understand these causes thus for practice.

1° Mutual consent: namely, each spouse together can renounce his or her proper right as regards the bed, whether for a time or perpetually, provided that, mature deliberation and long experience having been premitted, it is clear that the danger of incontinence is absent, and they are separated from bed. Likewise they can be separated even as regards habitation, whether for a time on account of business, or perpetually on account of a desire for a more perfect life; this desire can be fulfilled in two ways, namely either by the reception of Sacred Orders (concerning which mode see n. 1521. 10°), or by entrance into Religion. Concerning this note that it is necessary that the other party also enter a monastery and there emit regular profession, unless perhaps already of advanced age and immune from every suspicion of incontinence; for then it suffices if the person bind himself or herself by perpetual simple vow of chastity (before an ecclesiastical Superior and witnesses). Except if pontifical dispensation frees from this vow.³

Can spouses by mutual consent enter a Congregation in which only simple vows, yet of themselves perpetual, are emitted? - I think that, prudence being observed in individual cases, nothing obstructs; for even while remaining in the world both can vow continence.

2° Grave danger of soul, if danger of perversion in one from the cause of the other is present; or of body, if danger of life or mutilation is imminent, or if cohabitation on the part of one toward the other is made so troublesome that it is rendered morally impossible. This would happen if a spouse were compelled to suffer relatively grave or frequent cruelties, or if the wife were expelled without cause.⁴

3° Adultery of either party, namely such that it is: 1° morally¹ certain; 2° voluntary, and not perpetrated from violence inflicted;² 3° not condoned either expressly or implicitly, e.g. by the conjugal act, or by other signs, exhibited by the innocent party knowing and remembering the adultery (for the internal forum, with the mind of condoning);³ 4° not mutual, because then compensation would exist;⁴ 5° as St. Alphonsus thinks more probably, consummated;⁵ 6° committed without the consent of the other party.⁶ - This is clear from the words of Christ⁷: He who shall dismiss his wife, except for the cause of fornication, makes her commit adultery, etc. But what is licit for the man ought by the same reason to be licit also for the woman.

Observe from the more common and at least extrinsically more probable opinion of the Doctors that under the name of adultery here comes any division of the flesh, even if it does not have the character of adultery properly so called, of which kind is sodomy and bestiality.⁸

1553. Questions. - Quaer. 1° Is a man, when the adultery of his wife is known, held to dismiss her?

Resp. 1° It is certain that he is not held by reason of adultery, because divorce was conceded in favor of the innocent party, not for his punishment. - Thus commonly.⁹

Resp. 2° Sometimes the man can be held to dismiss an adulterous wife by reason of fraternal correction or avoiding scandal, and say the same of the wife, if founded hope of amendment is present and the husband can be dismissed without grave inconvenience; but this former case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal or another grave inconvenience to be feared from separation can excuse. Besides, the wife cast out would be exposed to greater danger, at least for the most part. But the latter case will be most rare.¹⁰

Quaer. 2° Once divorce has been made, can the innocent party compel the other to return to himself or herself?

Resp. 1° Affirmatively, if there is question of non-juridical separation, because this is not strengthened by sentence of the judge.

Resp. 2° Affirmatively, more probably, even in the very case of juridical separation. The reason is because the sentence of juridical separation is borne in favor of the innocent party, and therefore does not take away the right of recalling the other; nor for this is a new sentence of the judge needed. Nevertheless an adulterous woman is not to be compelled to return as often as she can reasonably fear that she will be treated harshly, bitterly, or even cruelly.¹

Nevertheless one must observe:

1) Although after divorce juridically made, according to the common doctrine, the innocent party can, even against the will of the adulterous party, enter Religion or receive Sacred Orders, nevertheless this is not conceded to the adulterer dismissed; who therefore can neither enter Religion nor be initiated in Sacred Orders unless the innocent party either expressly consents, or has already assumed an irrevocable state; and if the adulterer were to enter Religion, he could be recalled by the innocent party even after profession.² Nevertheless St. Alphonsus³ admonishes that tacit consent also suffices for this, namely if the innocent party knows this and does not contradict when he or she can; nevertheless in the case he or she is not held either to enter Religion or to bind himself or herself by a vow of chastity. St. Alphonsus concedes this very thing to the guilty party when the innocent party, having been asked, was unwilling to admit reconciliation, or even if the innocent party has not recalled the guilty party after two years have already elapsed.⁴

2) "If divorce has been made by civil authority" as regards the bond, "the spouses renewing domestic intercourse, without new nuptials, will be liable to the penalties of adultery. But this can be asked: whether, for escaping the penalties of the law and recovering rights, it is licit to give consent again to Matrimony. It seems licit before the priest to refer to consent once given, so that he can testify concerning the Matrimony; but the consent itself must not be renewed, since it is the form of the Sacrament; for the rest, words can be used in a broad sense for satisfying the law. While care is employed that civil testimony be had concerning the Matrimony, caution must be taken that no sacred rites be performed again, or that anything be done by which favor is given to the error of a bond dissolved." Thus Kenrick.⁵

Quaer. 3° Once juridical separation has been made on account of adultery, is the innocent spouse held to return to the other party recalling him or her, if he or she afterwards has also fallen?

Resp. Negatively, more probably. The reason is because the first adulterer, by the sentence of the judge, was already entirely stripped of every right toward the innocent party.¹

Quaer. 4° Can divorce be made by private authority?

Resp. 1° Affirmatively as regards the bed, if a grave cause underlies, as was said above; and specifically by reason of adultery, even occult adultery, because the rights of Matrimony can be denied perpetually to the unfaithful spouse.

Resp. 2° As regards habitation: 1° affirmatively, by reason of adultery, even if the crime is occult (at least more probably, if the adultery is on the part of the woman), because Christ, by permitting divorce for this cause, did not distinguish between public and private adultery. But for this it is required that the crime be certain, and that scandal not intervene from the separation which cannot be otherwise repaired.² - Yet several say that divorce is not licit on account of occult adultery; because it is not licit to injure the fame of the adulterer by making manifest, even tacitly, a secret crime. 2° Affirmatively also, by reason of danger either of soul or of body, provided the danger is in delay, or the innocent party cannot litigate, or approach the judge, or easily prove the cause.³ But in practice it is expedient that the counsel of a prudent man, especially of the confessor, be sought. But the confessor ought to proceed very cautiously in this matter. Let him beware lest too easily he believe the complaints of wives against husbands; and let him strive to restrain them, and avert them, insofar as it can be done, from divorce. - Besides, diocesan statutes, if there are any, are to be observed. - "Nor do I think those spouses should be disturbed," says Müller, Th. Mor. III. § 227. n. 4, "who have been separated by civil authority only, if they are in good faith; for scarcely any fruit of admonition is to be hoped for."