Section — Merkelbach, Pastoral Questions
§ 2. Concerning the Indissolubility of Matrimony
- Notion.
I) a) Indissolubility is the property of matrimony by which the matrimonial bond is not dissolved, except by the death of either spouse.
b) That property belongs to every matrimony, both natural and Christian, with a certain qualification, however, as we shall say at once.
c) The Mosaic law admitted a bill of repudiation, by which the matrimonial bond was dissolved and power was given to the repudiated wife of entering a new marriage. But here also the Savior restored for all men the first indissolubility of matrimony.
- II) In what sense matrimony is indissoluble.
a) "Valid matrimony that is ratified and consummated can be dissolved by no human power and by no cause, except death" (can. 1118).
This doctrine is certain by faith, since the Council of Trent defined thus: "If anyone says that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine (Mark 10; 1 Cor. 7), that because of adultery by one of the spouses the bond of matrimony cannot be dissolved, and that neither party, nor even the innocent party who gave no cause for the adultery, can, while the other spouse is living, contract another matrimony, and that he commits adultery who, after dismissing the adulteress, marries another, and she who, after dismissing the adulterer, marries another: let him be anathema."1
1 Sess. XXIV, De sacramento matrimonii, can. 7. Denzinger-Bannwart, n. 977.
This alone was the reason why the Fathers abstained from directly defining as a dogma of faith that doctrine concerning the absolute indissolubility of matrimony ratified and consummated, lest they offend the Greek schismatics, who follow the contrary practice and admit the dissolution of the bond because of adultery by one of the spouses.
- b) "Matrimony not consummated between baptized persons or between a baptized party and a non-baptized party is dissolved both by the law itself through solemn religious profession, and by dispensation granted by the Apostolic See for a just cause, at the request of both parties or of either party, even if the other is unwilling" (can. 1119).
Therefore matrimony ratified and not consummated can be dissolved in two ways:
1°) By the law itself through solemn religious profession of either spouse. For thus speaks the Council of Trent: "If anyone says that matrimony ratified but not consummated is not dissolved by the solemn religious profession of either spouse: let him be anathema."2
Solemn profession has place only in Orders strictly so called, but not in religious Congregations. In France, Belgium, and Holland very few monasteries of women pronounce solemn vows.
2°) Through dispensation granted by the Supreme Pontiff. The practice of the Church from the time of Martin V has rendered that right of the Pontiff so certain that it cannot be denied without the note of temerity.
- c) "Legitimate matrimony between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege" (can. 1120, § 1).
- The Pauline privilege is so called because it is drawn from the words of the Apostle, 1 Cor. 7:12-15: "For to the rest I speak, not the Lord: If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away; and if any woman has an unbelieving husband, and he consents to dwell with her, let her not put away her husband.... But if the unbeliever departs, let him depart; for the brother or sister is not subject to servitude in such things; but God has called us in peace."
- After Innocent III, who first gave the authentic interpretation of the words of the Apostle, the Church understands this privilege thus: if one of the spouses is converted to the faith and receives baptism, while the other perseveres in his unbelief, the converted party has the right of entering a new matrimony with one of the faithful, provided that there are grave reasons for departure indicated by law, and that, in addition, the due interrogation of the unbelieving party by the faithful party has preceded.
- Concerning this privilege the following things are to be carefully noted:
1°) "It does not obtain in matrimony entered between a baptized party and a non-baptized party with dispensation from the impediment of disparity of cult" (can. 1120, § 2).
2°) A threefold case gives place to entering new nuptials:
a) if the unbelieving party departs, even inculpably.
b) if he refuses to cohabit peacefully with the converted party.
c) if he does not consent to cohabit except with dishonor to the Creator, e.g., by retaining concubines, by tempting the spouse to grave sins, etc.
3°) There is no place for the privilege if the converted party "after baptism himself gave the non-baptized party a just cause for departing" (can. 1123).
4°) "§ 1. Before the converted and baptized spouse validly contracts a new matrimony, he must... interrogate the non-baptized party:
- whether she too wishes to be converted and receive baptism;
- whether at least she wishes to cohabit peacefully with him without dishonor to the Creator.
§ 2. These interrogations must always be made, unless the Apostolic See has declared otherwise" (can. 1121).
5°) "§ 1. The interrogations are regularly to be made at least in summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by which Ordinary there are also to be granted to the unbelieving spouse, if indeed she has asked for them, delays for deliberation, with this warning, however, that if the delays pass uselessly, the response is presumed negative.
§ 2. Interrogations made even privately by the converted party himself are valid, indeed are licit, if the form prescribed above cannot be observed; nevertheless in this case, for the external forum, they must be established by at least two witnesses or by another legitimate mode of proof" (can. 1122).
6°) The aforesaid interrogation is indeed altogether necessary, except in the case of a dispensation granted by the Roman Pontiff alone or by his delegate. But it is not altogether established that a matrimony celebrated without the due interrogation or its dispensation is null, if otherwise there is proof of the true departure of the unbelieving party.3
3 Dom. Prummer, O.P., Manuale Theologiae Moralis, t. III, second and third edition, p. 469.
7°) "The faithful spouse, although after receiving baptism he has again lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person, and therefore can use this right, if the unbelieving spouse, having changed will, afterward departs without just cause, or no longer cohabits peacefully without dishonor to the Creator" (can. 1124).
8°) "The bond of the former marriage, contracted in unbelief, is dissolved only then when the faithful party has actually entered validly into new nuptials" (can. 1126).
10°) Against a few, it seems certain that the Pauline privilege also benefits those who, having been converted from unbelief, are validly baptized in a non-Catholic sect.
- d) Whether the Supreme Pontiff is able to dispense concerning matrimony contracted in unbelief when one or both parties are converted to the faith?
R. 1° It is certain that the Pope can dispense, if the matrimony was never consummated.
2° More probably, the Supreme Pontiff can dissolve the bond of a legitimate matrimony even consummated, which nevertheless after both spouses have been baptized has not again been consummated.
Thus Prummer,4 who adds: "Thus is the common opinion among moderns." A twofold argument is brought forward in favor of this opinion:
4 Ibid., p. 471.
1°) Intrinsic: Such a matrimony is not ratified and consummated, because before baptism it was not ratified; but only the bond of Christian matrimony ratified and consummated is altogether indissoluble.
2°) Extrinsic: The Constitutions of St. Pius V, Romani pontificis, 2 August 1571, and of Gregory XIII, Populis, 25 January 1585, seem to proceed beyond the limits of interpreting the Pauline privilege and to grant a true dissolution of the matrimonial bond; these Constitutions the Code of Canon Law extends to all regions, in the same circumstances (can. 1125).
3° It is certain that no place is given to dispensation if the matrimony has been consummated after the baptism of both.