Article IV: Disparity of Worship

117. • I. Notion.

Disparity of worship is the diversity of religion which exists between two persons, of whom one has validly received baptism and the other has not.

118. • II. Extension of the impediment.

"There is no matrimony contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism." (Can. 1070, § 1.)

a) Before the Code all the baptized, even non-Catholics, were subject to that impediment.

b) But now the impediment affects only directly those baptized in the Catholic Church or converted to the same from heresy or schism; indirectly, the non-baptized who intend to contract with such persons.

119. • III. Who are considered baptized in the Catholic Church.

a) Certainly those who, by their own will if in adult age, or by the will of parents or guardians if infants, were baptized for this end, that they be joined to the communion of the Catholic Church. It suffices that that intention be tacit.

b) More probably, infants who, placed in danger of death, were baptized by a Catholic person, even without the knowledge of the parents.

Indeed, those who were baptized by a Catholic contrary to the prescription of cc. 750-751.

c) Yet if the aforesaid children born of non-Catholics (b) were educated from infancy in heresy or schism or without any religion, it is not established that they are held by the impediment, especially if they were baptized illegitimately in the Catholic Church.

Practically, while a doubt of law stands, they are not bound by the impediment.

120. • IV. Who are converted.

a) Those who return to the Catholic Church of their own accord.

b) Children who, having attained the use of reason, were educated as Catholics by parents or guardians.

121. • V. Doubtful baptism with respect to matrimony.

a) If there is question of celebrating.

The doubt must be shaken out as far as possible. If after diligent investigation a serious doubt remains, if the Catholic party is doubtfully baptized, let that party be rebaptized conditionally; if the non-Catholic party, who wishes to be converted, then that party also is to be rebaptized conditionally; but if he does not wish to be converted, it is not licit to rebaptize him conditionally, but it is preferable to obtain, as a precaution, a dispensation upon disparity of worship, together with a dispensation from mixed religion.

Marc warns that such a dispensation as a precaution can be granted by the Ordinary, since there is question of a doubt of fact, according to can. 15.¹

¹ Op. cit., n° 2039.

b) If there is question of a matrimony already celebrated.

In doubt, matrimony is always presumed valid. (Can. 1070, § 2.)

But note well that this presumption yields to truth.

Whence, if a person baptized in the Catholic Church or converted to the Catholic Church contracted matrimony without dispensation from the impediment of disparity of worship with a person who truly is not baptized, the matrimony is in reality null.

122. • VI. From what law that impediment proceeds.

Indubitably it is of merely ecclesiastical law.

123. • VII. Cessation of the impediment.

a) Besides the conversion and baptism of the unbelieving party, that impediment ceases through a dispensation of the Roman Pontiff granted through the organ of the Holy Office. Outside mission places, Ordinaries of places very rarely have the faculty of dispensing.

1. In Catholic regions a dispensation is rarely granted, especially if there is question of matrimony with a Jew.

2. The cautions which are required for mixed nuptials must always be exacted (can. 1071).²

² Cf. above n° 83.

The delegate dispenses invalidly if the cautions are not furnished.³

³ S. Off., 21 Jun. 1912, Acta Apostolicae Sedis 1912, p. 443.

3. As to the rite to be employed, the same restrictions are in force as for mixed nuptials. (Can. 1071.)⁴

⁴ Cf. above n° 87.

4. More probably, a dispensation upon disparity of worship still implies, as in the prior law,⁵ dispensation from all impediments from which the unbelieving party is exempt, such as consanguinity in the second degree of the oblique line, etc. For "the style of the Curia, to which the aforesaid dispensation is referred, must be attended to also in the new law (can. 20), where there is lacking an express prescription of law, whether general or particular."⁶

⁵ Instr. S. Officii, 16 Sept. 1824 ad 2, Coll. De Pr. Fide, I, n. 784.

⁶ Capello, op. cit., n° 422. Thus also Vermeersch-Creusen, op. cit., n. 346.

Marc rather favors the contrary opinion.⁷

⁷ Op. cit., n. 2038, note 1.

b) The impediment seems also to cease in a case of true necessity.

Such a case indeed will be rare, but not altogether impossible. "Hence, if in some region of unbelievers there were so few Christians that they could not contract matrimonies among themselves, and on account of the distance of places or other circumstances they could not ask for a dispensation upon disparity of worship, Christians, at least probably, would not be held by this impediment."⁸

⁸ Capello, op. cit., n. 199.