Article — Merkelbach, Summa Theologiae Moralis
Article II: On the Indissolubility of Matrimony
St. Thomas, Suppl., q. 67; q. 59, a. 3-6, and q. 61; Contra Gentiles IV, 123.
815. State of the question. - Matrimony according to its essence is a lasting and stable union; but this union naturally and of itself wills to be perpetual, continued through the whole of life until the death of either spouse. This property, insofar as from the intimate nature of the thing it is required that the conjugal bond be indivisible, is called firmness; but insofar as it cannot be divided or broken by any human cause, it is called indissolubility: for no one can doubt that it can be dissolved by divine power. Hence indissolubility is defined: the property by which, on account of intrinsic firmness, the inviolable conjugal bond cannot be dissolved. To it is opposed divorce properly so called, or the dissolution of matrimony with the faculty of passing to new nuptials.1
1 Sometimes divorce is taken in a broader sense, for separation from bed alone, or also as to habitation.
But indissolubility is twofold: intrinsic and extrinsic. It is intrinsic insofar as matrimony cannot be dissolved by its natural intrinsic cause by which it arose, namely, by the mutual consent of the contracting parties; extrinsic, insofar as it cannot be dissolved by an extrinsic cause, or by the authority of a superior. Opposed to these, on the contrary, stand intrinsic and extrinsic dissolubility.
Indissolubility is usually called the good of the sacrament, insofar as it represents the indissoluble conjunction of Christ and the Church (n. 793). And although a certain firmness already belongs to the matrimony of unbelievers, nevertheless the firmness of a Christian ratified matrimony is stronger, on account of the true notion of a sacrament properly so called, and the greatest or perfect indissolubility belongs to consummated Christian matrimony on account of the perfect notion of a sacrament.
A. Before Christ, at the time of the Mosaic law, it was granted that matrimony could be dissolved under certain conditions; and among very many nations divorce existed, although among some, even primitive peoples, matrimony was indissoluble. But Christ revoked the concession that had been made and restored matrimony to the perfection of the state of innocence, in which there was the perpetual union of one man to one woman.
1° The Greek schismatics, from the ninth century, and the Orientals, teach that the matrimonial bond can be dissolved on account of adultery, and besides they admitted the causes of divorce established in law by Justinian, and afterward still others.
2° Among Protestants, Calvin said that it can be dissolved on account of adultery; but Luther also on account of heresy, troublesome cohabitation, malicious desertion, to which afterward other causes were added, such as cruelty, leprosy, insanity, etc.
3° Launoy, a Parisian doctor, taught that according to Scripture and ancient Tradition matrimony can be dissolved on account of adultery; and therefore that this is prohibited by ecclesiastical law alone, and that the Tridentine canon is merely disciplinary.
4° Some Rationalists, and many politicians and civil jurists, admitted that divorce on account of certain determined causes is not only licit but also useful or praiseworthy, and they introduced it into legislation.
B. But Naturalists, having gone further, preach the liberty of love, on account of which absolute dissolubility is licit to the spouses themselves, who, just as they entered the contract freely, so also can dissolve it at will. Whence in place of stable and perpetual marriage itself, they now "wish there to be new species of matrimony," says Pius XI: "one for a time (for example, which lasts while residence in such a region lasts), another as an experiment, another friendly, which claims for itself the full license of matrimony and all rights, yet with the indissoluble bond removed and offspring excluded, unless the parties should thereafter convert their communion and custom of life into a full legal matrimony."
816. Thesis I. By natural law matrimony is intrinsically and extrinsically indissoluble, so that it cannot be dissolved by any human power, and intrinsic dissolubility is opposed to the primary precepts of the natural law, but extrinsic and restricted dissolubility to the secondary precepts.
Intrinsic dissolubility is that by which the contract of matrimony could be dissolved at will by the will of the contracting parties themselves, by their private authority, and which therefore of itself is absolute: it is repugnant to the primary precepts of the law of nature. Extrinsic dissolubility is that by which the matrimonial bond could be dissolved by an extrinsic cause or by the authority of a superior, and which is restricted to certain conditions: it is repugnant at least to the secondary precepts of the law of nature. For this reason proposition 67 of the Syllabus was condemned: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority."
It is proved: A. First part: Intrinsic dissolubility, by which the contract could be dissolved at the will of the contracting parties, is repugnant to the first precepts of the law of nature. For it destroys the conjugal society itself, and renders impossible its principal end: the propagation and due education of offspring unto perfect age. For that end a lasting time and the concordant care of both spouses are required; and therefore that end itself would be rendered impossible if, at will and at every moment, a separation of the spouses could take place.
B. Second part: Extrinsic dissolubility, by which matrimony would be dissolved by human authority in determined cases, is not necessarily repugnant to the primary but to the secondary precepts of the law of nature.
1° It is not repugnant to the first precepts and to the primary end of matrimony: for this end requires that the procreation and education of offspring not be impeded. But restricted dissolution does not always impede this end, for example, if the children have already been duly educated, or if the woman is sterile, or if other favorable circumstances are present. Therefore restricted dissolution does not necessarily and always impede the primary end. And therefore it does not seem absolutely repugnant to the primary intention of nature that a husband dismiss his wife, or a wife leave her husband, provided that the dismissal or departure is ruled by public authority and by laws, by which the principal inconveniences may be guarded against and by which divorce may be made rare and difficult.
2° Nevertheless it is repugnant to the secondary precepts of natural law. For:
a) It greatly impedes the secondary end: for mutual assistance in the fellowship of domestic life is of itself perpetual and ought to last until death; and love tends to perpetuity, since total donation is irrevocable, and if otherwise, it would be unequal, since it takes away the integrity of the woman. But dissolubility renders the conjugal union less stable and thus greatly harms the fidelity of the spouses and happiness and peace; it diminishes mutual love, which intends a perpetual conjunction; and it harms the dignity of the wife, because it takes away perfect equality on account of the irreparable mark which results for the woman from matrimonial conjunction. Hence St. Thomas, Contra Gentiles III, 123:
"It seems repugnant to equity if the aforesaid society is dissolved: for the female needs the male not only for generation, as in other animals, but also for governance, because the male is both more perfect in reason and stronger in power; but the woman is taken into the society of the man on account of the necessity of generation. Therefore, when the fecundity and beauty of the woman have ceased, she is impeded from being taken by another. Therefore, if one taking a woman in the time of youth, when both beauty and fecundity are present in her, could dismiss her after she has advanced in age, he would inflict harm on the woman contrary to natural equity.
"Likewise, it manifestly appears to be unfitting if the woman could dismiss the man, since the woman is naturally subject to the man as to a governor; but it is not in the power of one who is subject to another to withdraw from his rule. Therefore it would be against the natural order if the woman could desert the man. But if the man could desert the woman, the society of the man toward the woman would not be equal, but a certain servitude on the part of the woman...
"Furthermore, the greater a friendship is, the firmer and more lasting it ought to be. But between a man and a woman there seems to be the greatest friendship: for they are united not only in the act of carnal intercourse, which also among beasts makes a certain pleasant society, but also for the fellowship of the whole domestic life; whence, as a sign of this, a man also leaves father and mother on account of his wife, as is said in Gen. II, 24. Therefore it is fitting that matrimony be altogether indissoluble."
b) It also harms the principal end, the attainment of which it renders much more difficult and less perfect. The very possibility of separation, and the prospect of a new marriage, and the more fragile union of peace, renders the education of children less provident. Moreover, matrimony according to the intention of nature is ordered to the education and solicitude of offspring through the whole of its life. For since offspring is the common good of the man and the woman, care for it requires the society of both for as long as it remains the good of both, and therefore they ought to remain joined perpetually, "insofar as provision must be made for children by the parents for the whole of life through the due preparation of those things which are necessary for life," as St. Thomas says, q. 67, a. 2. Whence, a. 1:
"Matrimony according to the intention of nature is ordered to the education of offspring not only for some time, but through the whole life of the offspring. Whence it is of the law of nature that parents lay up treasure for their children, and that children are heirs of the parents... And therefore, since offspring is the common good of husband and wife, their society must remain perpetually undivided, according to the dictate of the law of nature. And thus inseparability is of the law of nature."
c) It is opposed to the good of domestic and civil society, because it disturbs the peace of families, multiplies lawsuits, and brings in corruption of morals; on the contrary, indissolubility promotes good morals. This St. Thomas shows, Contra Gentiles III, 123:
"For thus the love of one toward the other will be more faithful, while they know themselves to be indivisibly joined; there will also be a more solicitous care of each in domestic affairs, while they think that they will remain together perpetually in the possession of the same things. The origins of dissensions also, which would have to occur if the man should dismiss the wife, between him and the relatives of the wife, are removed by this; and affection among relatives by marriage is made firmer; occasions of adulteries also are taken away, which would be given if the man could dismiss the wife, or conversely."
817. Thesis II. By divine law matrimony is established as indissoluble, and although in the Old Testament under the Mosaic law it could sometimes be dissolved by a bill of repudiation, nevertheless in the evangelical law indissolubility is urged as in the state of innocence, so that matrimony cannot be dissolved by any human power and for no cause, but only in certain cases by divine power. - It is certain from the definition of the Council of Trent, sess. 24, and canons 5 and 7.
It is proved: 1° From the Scriptures, where, when the Pharisees asked whether it is licit for a man to dismiss his wife for any cause whatever, Christ answered, Mt. XIX, 3 sq.: Have you not read that he who made man from the beginning made them male and female? For this cause a man shall leave father and mother and shall cleave (Greek: shall be glued) to his wife and the two shall be in one flesh. Therefore now they are not two, but one flesh; what therefore God has joined, let not man separate. But when the Pharisees insisted and argued from the bill of repudiation, the Lord added: Because Moses, on account of the hardness of your heart, permitted you to dismiss your wives; but from the beginning it was not so.
In those words it should be noted: a) Christ pronounces: What God has joined, let not man separate. But what God has joined, man, without power given divinely, separates illicitly and invalidly. Therefore the dissolution of matrimony is not only illicit, but also invalid. But by these words Christ did not establish a new law, but renewed the first institution; for he says to the Pharisees: have you not read... and then he brings forward the words of Adam: This now is bone...; and thus the Council of Trent, sess. 24, declares.
b) The Pharisees object: under the Mosaic law the dismissal of a wife was licit. Christ answers that from the beginning it was not as the Mosaic law permitted. Therefore from the beginning the dismissal of a wife was not licit.
c) This is confirmed by the following words: Whoever shall dismiss his wife... and shall marry another, commits adultery; and he who shall marry one dismissed commits adultery (cf. Mt. V, 32; Mk. X, 11-12; Lk. XVI, 18); namely, any such union is not a conjugal union, on account of the bond remaining with the first wife.
d) Wherefore the Apostle urges the law of indissolubility in every way in the matrimony of Christians: I Cor. VII, 10-11, 39; Rom. VII, 2-3.
2° From the perpetual Tradition of the Fathers, Councils, and Pontiffs, by whose testimonies the principle of indissolubility was vindicated with great uniformity and constancy.
The Fathers a) in the first three centuries affirm absolute indissolubility, even in the case of adultery, nor could any contrary testimony be brought forward: thus Hermas, Mand. IV, 1; Justin, Apol. I, 15; Athenagoras, Legatio pro Christianis, 32; Tertullian, Adversus Marcionem IV, 34; Clement of Alexandria, Stromata II, 23; and afterward Lactantius, Inst. div. VI, 23; Hilary, in Mt. IV, 22; Ambrose, in Luc. V, 8; VIII, 16; Jerome, ep. 77; Apostolic Canons, 48.
b) From the fourth century the same doctrine does not cease to be affirmed, not only altogether firmly in the West, but also in the East, where nevertheless it suffered a certain obscuration on account of the assent more easily given to the practical toleration of divorce, especially on account of adultery or a few other causes. Whence the Fathers grieve over the contrary practice: thus already Origen, in Mt. XIV, 23; afterward Asterius of Amasea, hom. in Mt. XIX, 3; Augustine, De coniugiis adulterinis II, 17.
c) From about the ninth century the assertion of indissolubility in every way is, among Catholics, almost unanimous.2
2 With regard to the first centuries of the Church it should be noted that the doctrine concerning the absolute indissolubility of matrimony had not yet been defined by the authentic magisterium; whence it is no wonder if certain less learned men, on account of civil laws and practice, erred, and while erring were not held as heretics. In particular, as to the practice of the Greeks: 1° the Greek Fathers never admitted the opposite doctrine; on the contrary Basil, Gregory Nazianzen, and Chrysostom deny that imperial laws have any force in this matter for Christians, and they oppose the law of the Gospel. 2° Civil laws, even under Christian emperors, retained not a few elements of the old pagan legislation, which could be transformed only little by little; besides, under the first Christian emperors the Roman empire still numbered very many pagans, for whom the emperors could make matrimonial laws, nor is it to be denied that the Christian emperors, especially the Greek ones, often exceeded the measure, claiming for themselves truly ecclesiastical rights over Christian subjects. 3° In the Greek Church that dissolubility in certain cases was never asserted as a doctrinal head, but was tolerated as an abuse in order to avoid greater evils. Whence Eugene IV, perhaps supposing a practice of this kind to proceed rather from ignorance, expressly affirms the Catholic doctrine in the Council of Florence. On the other hand, the Patriarch of the Greeks himself, in setting forth Catholic doctrine against Luther, when enumerating the seven sacraments of the Church, vindicates the indissolubility of matrimony. Therefore from the practice of the Greeks it by no means follows that this indissolubility belongs rather to the discipline of the Latin Church than to the doctrine of the Catholic Church.
Councils can be named: Illib. (305), can. 8 and 9; Arles (314), can. 10; Afr. IV, can. 6; Carthage XI (otherwise Milevis), can. 8; syn. S. Patr. (450-456), can. 19; Angers (453), can. 3; Nantes (658), can. 12; Hereford (673), can. 10; Soissons (744), can. 9; Friuli (796), can. 10; Paris (829); Florence (1439), decree for the Armenians; Trent,3 sess. 24, can. 7.
3 Nevertheless the Council of Trent did not wish directly to condemn the practice and opinion of the schismatic Greeks, lest it should be an obstacle to union; but it acts directly against the Protestants and anathematizes those who said that the Church errs when it teaches that matrimony cannot be dissolved on account of adultery; from which, however, the doctrine of the Greeks is with equal certainty touched indirectly.
The Pontiffs vindicated the indissolubility of matrimony: Innocent I and Leo I in the fifth century; Gregory I in the sixth century; Zachary and Stephen II in the eighth century; Alexander III in the twelfth century; Innocent III in the thirteenth century; recently Leo XIII and Pius XI; and they defended it most vigorously against princes.4
4 We do not deny, nevertheless, that a few resolutions of particular cases proposed by some bishops or particular councils were false or less conformable to doctrine, or that Celestine III unduly extended the Pauline privilege to the case of an apostate leaving the Christian party, which judgment Innocent III reformed. But wholly exceptional particular facts do not impede the doctrine, morally unanimous and constant.
3° From theological reason: Matrimony represents the indissoluble union of Christ and the Church; therefore it too ought to be indissoluble.
Nevertheless, in the Mosaic law it was conceded that matrimony sometimes be dissolved by a bill of repudiation (Deut. XXIV, 1 sq.; Lev. XX, 10; XXI, 7); but only under certain conditions: a) the faculty did not belong to the wife, but only to the man, nor was it permitted to the man who before matrimony had had carnal commerce with the wife, or had unjustly accused her of not being a virgin; b) he could not dismiss his wife for any cause whatever, but only on account of some foulness, which word indicates a certain moral or even physical stain; c) he could not dismiss her except by a written bill of repudiation, by which not only was provision made for the state of the wife, but divorce was made more difficult; d) if the repudiated woman entered a new matrimony, she could not again be received as wife by the former husband; by which it happened that the man proceeded more cautiously.
It does not seem to have been mere toleration, for it is affirmed to be permitted, so that in conscience it was licit, just as also the Jews understood it; but this was done because of the hardness of the hearts of the Jews, as Christ says, or as St. Thomas explains, q. 67, a. 3, "for restraining a greater evil, namely, wife-murder, to which the Jews were prone on account of corruption of the irascible power."
Nor does it stand in the way that no one can be freed from the natural law: for there are certain precepts which, by the concession of God, can exceptionally not oblige in a particular case; indeed secondary precepts in certain circumstances can even commonly fail to oblige, but only for a time and in order to avoid a greater evil or to obtain a greater good. But now, although intrinsic dissolubility [misprint in original: indissolubility] is opposed to the first precepts of the natural law, extrinsic and restricted dissolubility is not necessarily so opposed. And therefore, says St. Thomas, a. 2, it "seems rather to be contained among the second precepts of the law of nature. For the inseparability of matrimony is not ordered to the good of offspring, which is the principal end of matrimony, except insofar as provision must be made by the parents for the children for the whole of life through the due preparation of those things which are necessary for life. But preparation of this kind is not of the first intention of nature, according to which all goods are common (II, n. 396). And therefore the dismissal of a wife does not seem to be against the first intention of nature, and consequently neither against the first precepts, but against the second precepts of the law of nature..."
For "in the good of offspring, according as it is of the first intention of nature, there is understood procreation and nourishment and instruction, until the offspring is brought to perfect age. But that provision be made for him for the future through the leaving of an inheritance and other goods seems to pertain to the second intention of the law of nature" (ad 1).
818. Thesis III. By divine law valid, ratified and consummated matrimony, for every cause (except death), is absolutely indissoluble (can. 1118); non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved by divine power granted to the Church and to be exercised ministerially in the name of God: both a) by the law itself through solemn religious profession, and b) through dispensation granted by the Apostolic See from a just cause, at the request of both parties or of one of them, even if the other is unwilling (can. 1119).
It is declared: Matrimony which cannot be dissolved by any earthly power can nevertheless be dissolved by divine power, because every legislator of himself can dissolve a law which he has enacted by his own authority; God could communicate this divine power of his of dissolving the matrimonial bond to the Church, yet to be exercised ministerially in his own name. But now God has communicated to no one, nor has he given to the Church herself, the power of dissolving the sacrament of matrimony, if it is at the same time ratified and consummated, so that it can absolutely never be dissolved; but he has granted that non-consummated matrimony can be dissolved in certain cases.
For understanding this, the principle is useful: whatever is contrary to its sacramental signification is repugnant to Christian matrimony. But dissolubility is absolutely contrary to the sacramental signification of consummated Christian matrimony, not altogether so if it is not consummated. Therefore consummated Christian matrimony is altogether indissoluble, but, on the contrary, non-consummated matrimony is not.5
5 Cf. Billot, De Ecclesiae Sacramentis, II, th. 46.
The principle is clear, for the sacrament is called by the Apostle, Eph. V, 32, Christian matrimony, insofar as by divine institution it is a sacred sign of the conjunction of Christ and the Church; therefore its laws must now be derived from the exigencies of the signification of this mystery, in the same way as matrimony under the law of nature derives its laws from the exigency of its natural ends. But when the sacrament of matrimony has its consummation, it now signifies the mystery of the indivisible marriage-union of Christ with the Church precisely insofar as it is indivisible. Therefore it too is altogether indivisible.
In reality, the consummation of matrimony, just as it does not make the matrimonial bond in natural being, so neither does it make it in the being of a sacred sign or sacrament; but, with consummation acceding, the preexisting bond in natural being is perfected, not as to its essence, but as to the property of perpetuity or indissolubility, because the firmness of the conjugal bond is chiefly on account of the good of offspring to be received and educated. Likewise, with consummation acceding, the signification of Christian matrimony, or of the preexisting sacred sign and sacrament, begins to extend itself to something to which it did not previously extend itself except only potentially and in first act.
For there is a twofold union of the Son of God with human nature, physical and spiritual: the former is considered according to the drawing of the assumed humanity to the personal being of the Word, the latter is considered according to the communion of grace overflowing from Christ the Head into the body of the Church. The former is altogether indissoluble, because what the Word assumed he never dismissed or will dismiss; the latter, if it is considered with the individual members of the Church separately, is not in every respect indissoluble until it is consummated in glory. Now the conjugal bond does not yet represent in act this physical union of the Word with flesh before the spouses have in fact been made one flesh through the consummation of matrimony; and therefore ratified matrimony is not yet the sign of an absolutely indissoluble conjunction; but the contrary is true if it is ratified and consummated. St. Thomas proposes this thus, q. 61, a. 2, ad 1: "It must be said that matrimony before carnal intercourse signifies that conjunction which is of Christ to the soul through grace, which indeed is dissolved by a contrary spiritual disposition, namely, by mortal sin; but after carnal intercourse it signifies the conjunction of Christ and the Church as to the assumption of human nature into the unity of person, which is altogether indivisible."
Therefore ratified and consummated matrimony can in no way be dissolved, unless perhaps by that mode of dispensation which is assimilated to the working of miracles and belongs to God alone.
"Inseparability, although it is of the second intention of matrimony as it is in the office of nature, is nevertheless of the first intention of it as it is a sacrament of the Church. And therefore, from the fact that it has been instituted to be a sacrament of the Church, while such institution remains, it cannot fall under dispensation, except perhaps according to the second mode of dispensation," i.e., the miraculous mode (q. 67, a. 2, ad 3).
1° from the arguments brought above (n. 816), which are perfectly verified at least concerning ratified and consummated matrimony;
2° from the fact that the Church does not acknowledge dissolubility. For if such a matrimony could be dissolved, the Church would certainly know either that God dissolves it in certain cases, or that she has from God the power of dissolving it, or at least she would not deny that she has this power. But the Church does not know these things and denies them.
"Consider," says Billot, l.c., "how often the Roman Pontiffs have intervened in causes which pertained to the marriages of Christian kings, opposing a wall for the house of Israel; how often, when asked that, prior marriages having been dissolved, new marriages might be permitted to be made, they always resisted; how often, finally, in this matter they solemnly testified that they were destitute of every power, even if most grave causes were brought forward, such as the sterility of the wife, or the necessity of providing for the stability of the republic and the regular succession to the throne, or the danger of schism and of peoples being withdrawn from obedience to the Apostolic See, etc. Surely no more evident and illustrious confession could have existed" of absolute indissolubility. Whence, although this truth is not found defined in terms in some Council, nevertheless it is altogether certain that it belongs to Catholic doctrine, and it is explicitly proposed by Pius XI in the encyclical Casti connubii.
The words of the Lord, Mt. XIX, 9, are objected: Whoever shall dismiss his wife, except on account of fornication, and shall marry another, commits adultery; and he who shall marry one dismissed commits adultery. But those words are undeservedly opposed to the absolute indissolubility of matrimony. This is clear not only from the altogether parallel places (Mk. X, 11-12 and Lk. XVI, 18), which contain no restriction, but also from the very text of Matthew, if it is accurately weighed. For in reality: 1° immediately before, Christ had pronounced absolutely: What God has joined, let not man separate, and had rejected the exception of the Mosaic law; 2° immediately afterward Christ again pronounces without any exception: He who shall marry one dismissed commits adultery; 3° if the words themselves are inspected, it is clear that according to them two things are required for adultery: not only the dismissal of one's own wife, but also the taking of another woman; in other words, the dismissal of a wife in this case is now the beginning of adultery, which is completed by the taking of another woman. But then an evident exception had to be made for the first part, namely, that such dismissal is not begun adultery if it is done on account of a legitimate reason, namely, the fornication of the woman. This exception is reported by Matthew; it is omitted as evident by Mark and Luke. But even in the case of legitimate dismissal, the conjugal bond is not broken, for Christ immediately adds: and he who shall marry one dismissed commits adultery. This is the strict interpretation according to the text, in which the exception is placed after the words: he who shall dismiss, and not after the words: and shall marry another. Whence the restriction, except on account of fornication, is referred to the preceding words: he who shall dismiss his wife, and in no way to the following words: and shall marry another. And therefore the sense is: He who shall dismiss his wife, - which is not licit except on account of fornication, - and shall marry another commits adultery; and he who shall marry one dismissed commits adultery; but not this: He who shall dismiss his wife and shall marry another, except on account of fornication, commits adultery.
Other interpretations have been given, but this one is preferable, because it rests upon the analysis of the text itself, and is conformed to the sayings of the Fathers.
B. Second part: Non-consummated matrimony can be dissolved.
It is clear from the tradition of the Church, which is gathered:
a) from the explicit declarations of the Pontiffs Alexander III and Innocent III;
b) from the practice of the Church, which constantly prevailed at least from the twelfth century, and already existed in antiquity.6
6 That this was a most ancient practice of the Church is already attested by Venerable Bede in the eighth century, who reports the example of Etheldreda, queen of England, who left her spouse King Elfrid and entered a monastery; but when the king had vainly tried to recall his wife, he married another, Amelberga, with no one objecting, neither the Supreme Pontiff nor Bede. - There is also reported the example of St. Alexis in the fourth century; St. Cecilia in the third century; St. Thecla in the first century, whose nuptials, according to the testimony of Epiphanius, haer. 78, St. Paul dissolved. These facts do not compel, says Hugon, Tr. dogm. III, de Matr., a. 3, because it is not always certain whether there was first a true matrimony or only betrothals, and afterward a true religious profession; nevertheless they provide a foundation for the interpretation of the doctors.
The reason of fittingness is that the religious state is more excellent than the matrimonial state; but it was fitting that in the Church of Christ the excellence of that state should be taught not only by doctrine but also demonstrated by a certain fact. But it should be noted that matrimony:
a) is dissolved by the very valid solemn profession including the vow of perfect and perpetual chastity, not by entrance into religion alone;
b) is not dissolved by simple profession, whether temporary or perpetual, nor by that which is emitted in the Society of Jesus and which by privilege diriments matrimony to be contracted;
c) nor is it dissolved by sacred Order or by the solemn vow which is emitted in the ordination of the subdiaconate.
2° Also by dispensation granted by the Apostolic See. - It seems sufficiently certain from the widely diffused practice of the Church, which is now authentically recognized in the Code of Law.
From the time, namely, of Martin V, many Pontiffs practically acknowledge in themselves the power of dissolving ratified marriages on account of grave reasons and exercise it down to our own days; from this general practice the right of the Supreme Pontiff is proved: for although God could permit that this or that Pontiff, according to his private opinion, should admit something less honorable in his own governance, or should err in a particular case (which cases do not fall under infallibility), nevertheless he cannot permit that the Pontiffs should thus be, generally, the authors of baseness, and the cause why marriages would everywhere be dissolved illegitimately and concubinages created, or that they should constantly err; indeed the Pontiffs are infallible judges of their own authority.
Besides, they have the right of dispensing in a vow, even a solemn vow of religion; but this bond is stronger than the bond of ratified matrimony, since it dissolves that bond; therefore a fortiori they are able to dispense in merely ratified matrimony.
For the exercise of this power two things are required: a) juridical proof concerning the non-consummation of the matrimony; b) a legitimate cause, such as the probable nullity of the matrimony, moral impossibility for the spouses of cohabiting together, fear of future scandal and adultery, a civil marriage already entered by one party with a third person, danger of perversion, contagious disease, dissociation of souls without hope of reconciliation, etc.; even if the other party is unwilling for the dispensation.7 But if the matrimony has been consummated, or if a legitimate cause is lacking, the dispensation is of no value.
7 On the manner of proceeding in practice, cf. decree of the S. Congregation of the Sacraments, May 7, 1923 and March 27, 1929.
The dissolution of matrimony is not made by purely ecclesiastical law, since a derogation would be made from divine and natural law; but it is made by divine law, through the mediation of the Church, by the instrumental divine power granted to her and to be exercised in the name of God. In the same way it can be explained that matrimony is dissolved by solemn religious profession, although some have said that it is dissolved immediately by God or even from the very nature of the thing.8 Perhaps nevertheless it could be said with Haine, Th. M., de Matr., q. 71, that the privilege of dissolution of matrimony was conferred by God generally upon the profession of vows; but that the Church can prescribe the necessary condition for this privilege to be applied in particular cases and for matrimony to be dirimented by this profession. Today this condition is the solemnity of vows.
8 Sometimes St. Thomas, q. 61, a. 2, is adduced: "Before carnal intercourse there is between the spouses only a spiritual bond; but afterward there is also a carnal bond between them. And therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so by entrance into religion the bond which exists before carnal intercourse is dissolved, because religion is a certain spiritual death, by which someone, dying to the world, lives to God." But it is clear that this is only an argument of fittingness.
But it is disputed whether matrimony validly entered and consummated before Baptism, but after the Baptism of one or both spouses no longer consummated, is dissolved by religious profession. Concerning this there is not sufficient certainty, but perhaps the Supreme Pontiff can dispense in it; whence for the sake of security, in individual cases recourse must be had to the Holy See.
They object: 1° What God has joined, let not man separate. - Resp.: In this case the Church acts in the name of God; she uses divine power, not her own social power. If divine law is in itself absolutely determined, the Church indeed cannot derogate from it; but if there intervenes a human fact which is the condition that divine law oblige, then the Church judges that she can derogate. But in matrimony there intervenes a human fact, namely, matrimonial consent, and the Church exercises power over this human act in the name of God, and thus renders it null. So also in a vow there intervenes human liberty; and likewise the Church remits it in the name of God. And thus she does not properly dispense in the law of God, but brings it about that the human act no longer falls under the law of God, and withdraws the matter of the divine law.
2° From the dissolution of Matrimony great inconveniences are apt to follow, especially great harm is inflicted on a third party, namely, the woman; but the Church cannot bring it about that an innocent person suffer harm. - Resp.: Since the matter concerns only ratified matrimony, the graver evils, for example, on the part of offspring, to be consequent upon it are not verified; and since the dissolution is not made by private authority but by the Supreme Pontiff, and not except for grave causes, or through religious profession which procures a more excellent good, the other evils are thereby compensated. In particular, as regards the woman: a) the harm is not notable, because the matrimony is only ratified; b) she is given back to liberty and can enter another matrimony; c) if some particular harm remains, the common good often prevails, which, among other things, demands that the religious state be shown to be more perfect than the matrimonial state; d) elsewhere, the spouses know that ratified matrimony can be dissolved, and thus accept this beforehand.
819. Thesis IV. By divine law the legitimate matrimony of unbelievers, even consummated, can be dissolved, if, one having been converted to the faith, the other is unwilling to cohabit peacefully, or without injury to the Creator or spiritual harm to the faithful party (can. 1120). - It is certain from the declaration of Innocent III, who thus interprets the sentence of the Apostle Paul; whence this was called the Pauline privilege. But this privilege is a privilege of dissolution of matrimony conceded in favor of the faith and announced by the Apostle in I Cor. VII: in reality it is conceded in favor of the faith, insofar as otherwise a man would be deterred from embracing or retaining the true faith on account of the necessity of observing perfect continence, if the unbelieving party denied peaceful cohabitation.
It is proved: 1° From the Scriptures, at least understood according to the interpretation of tradition, I Cor. VII, 12-15: If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not dismiss the husband. For the unbelieving husband is sanctified through the faithful woman, and the unbelieving woman is sanctified through the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart: for the brother or sister is not subject to servitude in such cases: but God has called you in peace. By these last words there is conceded to the converted faithful party the faculty of dissolving matrimony as to the bond, in the case in which the unbelieving party is unwilling to cohabit peacefully.
For: a) the Apostle grants to the converted faithful party a special privilege; but if only separation as to bed and board were declared legitimate, and not dissolution as to the bond, there would be no special privilege in this but a common remedy; indeed, nothing would have been conceded, since cohabitation in the case is altogether impossible for the faithful party. b) It is clear from the context: in the preceding words the Apostle commands faithful spouses, separated for whatever cause, to remain unmarried; on the contrary, speaking of unbelievers, he simply says: if the unbeliever departs, let him depart, without enjoining on the faithful party to remain unmarried. But this difference is not explained unless because in the first case they remain bound by the bond, while in the other the bond can be dissolved, as the newly converted pagans naturally ought to have understood, nor otherwise would there be a difference from the prior case. c) It is also clear from the reason added: for the brother or sister is not subject to servitude in such cases, i.e., in this matter the Christian is not subject to the unbeliever in servitude; this servitude can be nothing except the conjugal bond. For he would be especially liable to servitude toward the unbeliever, if the faithful party were obliged to remain unmarried and could not enjoy marriage because of the malice of the unbeliever. This is altogether certain from the traditional interpretation of the Church.
2° From the tradition and practice of the Church, which is first indicated among the Fathers, as Chrysostom, in I Cor., hom. XIX, 31; Ambrose, in Lc. VIII, 2; Augustine, De fide et operibus, 28; Theophylact and Ambrosiaster on this place; afterward it was explicitly and authentically proposed by the Pontiffs, and consecrated through the acts of the centuries.
The privilege is of divine law, since it dispenses in divine and natural law; it could be conceded on account of the end of a good far superior, namely, divine faith, in the case in which, on account of the fact of the spouse remaining in unbelief, the ends of matrimony can scarcely be attained: not the secondary end, the peaceful fellowship of domestic life, since in the case it is excluded; nor the primary end, the good education of offspring, since the parents divide their affection concerning the offspring in such a way that they intend to draw it toward diverse and contrary things.
They doubt whether the privilege was conceded immediately by God and promulgated by the Apostle, or through the mediation of the Church, insofar as by ministerial power it was conceded by the Apostle to the Corinthians and extended by the authority of the Supreme Pontiffs to the universal Church, as several more recent authors now teach. Nevertheless this seems hardly able to be admitted, because then the privilege could be abrogated by the Supreme Pontiff. Whence the first sentence is to be preferred, which, besides, is that of the Holy Office, as is clear from the style of the curia and especially from the decree of July 11, 1866.
The conditions required for the validity of the Pauline privilege are:
a) That either unbelieving party be baptized, at least if in the Catholic Church. For it is doubted whether the privilege is valid for those converted from unbelief to a heretical sect and baptized in it, some affirming it if Baptism is valid, because there is present, as to substance, conversion to the faith; others denying it, because the privilege is given in favor of the faith, and the only true faith is Catholic; whence Innocent III says: "if one of the unbelievers is converted to the Catholic faith."
Hence it cannot be applied:
1° if both spouses receive Baptism: then their matrimony is already ratified; and a fortiori if, having been converted to the faith by Baptism, they thereafter have used matrimony: then it is ratified and consummated;
2° if both remain unbelievers, just as neither for catechumens not yet baptized: the Church does not have power over unbelievers;
3° to the matrimony of two heretics, of whom one is converted to the Catholic faith;
4° to a matrimony entered between two baptized persons, of whom one passes by apostasy to unbelief;
5° to a matrimony which a believer, with a previous dispensation, contracted with an unbeliever, even if afterward the unbeliever is unwilling to cohabit peacefully, as can. 1120, § 2 warns. For the privilege was conceded only to the newly converted, lest they be delayed from conversion.
b) That the party persisting in unbelief depart, whether physically, or even only morally, as we know from the interpretation of the Church. Physically, indeed, if he or she is unwilling to cohabit, i.e., if he or she leaves the conjugal home and does not return, even if it happens by chance or inculpably, provided that this was not maliciously caused by the faithful party after Baptism. But morally, if he or she is unwilling to cohabit peacefully, i.e., not without contumely of the Creator or blasphemy against Christ or contempt of the faith, or spiritual harm either of the faithful party or even of the offspring to be educated (Holy Office, Dec. 14, 1848).
Thus, if the unbeliever causes quarrels and disputes or other harms, or if directly or indirectly he tries to draw the faithful party to something gravely illicit, as to apostasy, adultery, the education of offspring in unbelief, so that conjugal life is rendered morally impossible and separation morally necessary on account of the malice of the unbeliever. Hence:
1° If the unbelieving party consents to cohabit peacefully, even if unwilling to convert, there is no place for the Pauline privilege; indeed, not even separation as to bed and cohabitation can of itself be made, according to that word of the Apostle: If... she consents to dwell with him, let him not dismiss her... The reason is that then the conversion of one party is rather a reason for remaining in the same marriage, on account of the hope of bringing the unbelieving party to the faith, which already appears sanctified in preparation of soul, since without blasphemy against Christ the party consents to cohabit. For the Apostle adds: The unbelieving husband is sanctified through the faithful woman, and the unbelieving woman is sanctified through the faithful husband.
2° Nevertheless, "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, with will changed, afterward departs without just cause, or also does not cohabit peacefully without contumely of the Creator" (can. 1124).
3° If, before the faithful party has contracted new nuptials, the unbeliever sincerely and efficaciously repents of his departure, or if he himself is baptized, use of the privilege would be invalid.
c) That the departure of the unbelieving party be established; for this, interpellation is regularly necessary as the ordinary means, and by canon law it must always be made in every case, unless the Apostolic See has declared otherwise (can. 1121, § 2). Whence even if interpellation is physically or morally impossible, the faithful party cannot enter another matrimony unless a dispensation concerning the interpellation has first been obtained from the Pontiff.
It should be noted: 1° The object of interpellation of the non-baptized party is twofold; namely, the baptized spouse ought to interpellate that party: "a) whether he or she also wishes to be converted and receive Baptism; b) whether at least he or she wishes to cohabit peacefully with him or her without contumely of the Creator" (can. 1121, § 1).
2° The time of interpellation is "before the converted and baptized spouse validly contracts a new matrimony" (can. 1121, § 1); therefore it is to be made not before but after Baptism has been received (Holy Office, June 3, 1874).
"§ 1. The interpellations are to be made regularly, in at least summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by which Ordinary delays for deliberating are also to be granted to the unbelieving spouse, if indeed he or she has asked for them, yet with this warning given, that when the delays have passed uselessly, the response is presumed negative.
"§ 2. Interpellations made even privately by the converted party himself or herself are valid, indeed are also 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 another legitimate mode of proof."
4° The effect of interpellation is declared by can. 1123: "If the interpellations have been omitted from a declaration of the Apostolic See, or if the unbeliever has responded negatively to them expressly or tacitly, the baptized party has the right of contracting new nuptials with a Catholic person, unless after Baptism that party has given to the non-baptized party a just cause for departing," such as would be the sale of the wife or adultery committed by the baptized party.
These conditions having been posited, the matrimony can be dissolved; but:
a) It is not dissolved except in the very instant in which a new matrimony is contracted by the faithful party, whence can. 1126: "The bond of the prior marriage, contracted in unbelief, is then only dissolved when the faithful party has actually entered new nuptials."
b) Whence, if the unbelieving spouse has contracted matrimony before the new nuptials of the faithful party, this is null; but immediately when the faithful party has entered matrimony, the other party, whether remaining unbelieving or converted, is free and can enter another marriage.
c) The faithful party cannot, without dispensation, enter new nuptials except with another Catholic party; and dispensation for contracting again with an unbeliever will be conceded only rarely.
d) In the case in which the converted party was a polygamist, the matrimony which can be dissolved is the first which he contracted: for the others are invalid; whence the first spouse will have to be interpellated.
820. Applications. - Prummer proposes several cases, Th. M. III, n. 679.
1° If the baptized party chooses the celibate life, but the unbelieving party contracts a new matrimony, this is invalid because the first has not yet been dissolved, and the privilege was conceded for the baptized party, not for the unbeliever.
2° If a baptized wife after conversion lives maritally with an unbelieving husband, but afterward the unbelieving husband takes other women as wives and is unwilling to dismiss them, the baptized wife can depart and enter new nuptials, because the Pauline privilege has not been extinguished.
3° If an unbelieving husband casts the baptized wife out of the house, and enters a new matrimony and begets offspring, but afterward is converted to the faith and is baptized, he is bound to dismiss the second wife, unless the prior wife who was cast out has meanwhile validly contracted another matrimony. The reason is that not the unbelieving party, but the faithful party, became free, and therefore the second matrimony of the unbelieving man is invalid, at least if his first matrimony was valid.
4° If two unbelievers, a legitimate matrimony having been contracted and then dissolved, fly to other nuptials, and afterward are converted to the faith, neither can remain in the second matrimony, at least while they receive Baptism at almost the same time: for the first legitimate matrimony could not be dissolved by their own authority, nor in fact was it dissolved by the second nuptials, which were illegitimate.
5° If an unbelieving spouse commits adultery, and therefore is cast out by the other party, but after some years is baptized and interpellates the other party, but that party refuses to cohabit, he or she can enter new nuptials. For the adultery committed is washed away by Baptism, and the unbelieving party irrationally repudiates the baptized party.
6° If an unbelieving spouse is baptized, peacefully cohabits for some time with the unbelieving party, but afterward commits adultery and therefore is cast out by the other party, he or she cannot, by force of the Pauline privilege, enter new nuptials; because the unbelieving party justly casts out the baptized party.
7° If an unbelieving woman who successively has several husbands is baptized, and her first legitimate husband is unwilling to dwell with her any longer, but the last consents indeed to cohabit peacefully yet is unwilling to convert, the woman ought to separate herself from the last man, who is not legitimate. But if this is very hard for her, let her seek a dispensation over the impediment of disparity of worship for legitimating and convalidating the matrimony.
821. Does not the power granted to the Church of dissolving the matrimonial bond extend itself to certain other cases? - For more easily bringing the Pauline privilege into practice, certain declarations and concessions were made by the Pontiffs for particular places, which now, by force of can. 1125, have already been extended to the universal Church. There are three constitutions, namely, given by Paul III, June 1, 1537, by Pius V, August 2, 1571, and by Gregory XIII, January 25, 1585.
a) Paul III grants to polygamists that they may choose any one of several wives whom they may marry, if they do not remember which one they first received.
b) Pius V declares that polygamists can retain any one of the wives who is baptized together with them, even if they should remember which one was first.
c) Gregory XIII granted the faculty of dispensing with converted unbelievers, so that, the unbelieving spouse having been left, they could enter a new marriage with any believer whatever, provided that at least summarily and extrajudicially it was established that the absent unbelieving spouse could not be warned, or, after having been warned, did not manifest his or her will within the time fixed beforehand.
On the occasion of these things it was asked whether, outside the Pauline privilege, the Church cannot dissolve a matrimony contracted in unbelief:
1° after one party is baptized, although before, but not after, Baptism the matrimony had been consummated;
2° indeed, if after Baptism, received by one party, it was again consummated;
3° consequently also, if, both parties having been baptized, the matrimony, although before, nevertheless was not again consummated.
To this many more recent authors respond affirmatively: a) because, in the concessions related above, the Supreme Pontiffs in fact went beyond the Pauline privilege, and in fact more than once dissolved the matrimonial bond in the first and second case; b) because only Christian matrimony ratified and consummated is altogether indissoluble. Indeed, since the bond of ratified matrimony between the faithful is stronger than legitimate matrimony, even consummated, among unbelievers, if the Pontiff can diriment the former, a fortiori he can diriment the latter. Namely, in the first and second case, consummated matrimony is not ratified, because it is not a sacrament (n. 786, 5°); in the third case the matrimony is consummated and ratified, but nevertheless not ratified and consummated.
Others, however, deny this, and answer that in the said concessions there is present only a dispensation, urged by grave reason, from making the interpellation in the case of the Pauline privilege. But ratified matrimony, according to them, does not have that greater firmness, because indissolubility is from natural law, not from the sacrament, but at most it can be said that it was more strongly confirmed from elevation to a sacrament. Moreover, in concessions made by positive will, the argument a fortiori does not always have force. Whence they judge that the ministerial power of the Supreme Pontiff does not extend itself to any consummated matrimony, which always, even among unbelievers, represents the indissoluble union of Christ and the Church.
As Noldin notes, Th. M. III, n. 525: "the Holy See itself deliberately abstains from deciding the question, and in its decisions now employs those modes of speaking which do not expressly signify the dissolution of a matrimony contracted in unbelief, but only dispensation from interpellation."
822. Corollaries. - 1. Although matrimony is constituted by mutual consent, nevertheless it cannot be dissolved by mutual consent, because the nature of the conjugal contract does not depend on the stipulation of the contracting parties, but is determined by nature itself and by God, and by reason of its end requires perpetuity.
- And although indissolubility can exceptionally harm the end of matrimony, nevertheless because "matrimony is principally ordered to the common good..., therefore in the laws of matrimony attention is paid more to what is expedient for all, than to what could be suitable to one. Therefore, although the inseparability of matrimony impedes the good of offspring in some man, nevertheless it is suitable to the good of offspring simply" (q. 67, a. 1, ad 4). Namely, law regards that which happens commonly and of itself. But the inconveniences which sometimes accidentally follow from indissolubility can be guarded against by separation from bed and cohabitation.
- The law of indissolubility imposes on spouses the obligation of carefully preserving concord of souls and Christian charity, and of guarding against whatever can pave the way for disagreements and especially for separation itself. Whence they sin against the good of the sacrament in all those things which disturb the undivided society of life, such as quarrels, disputes, dissensions, murmurings.
- The law of indissolubility is not only prohibitive of divorce but also invalidating, which is necessary that it effectively attain its end.
- How many goods flow from the indissolubility of matrimony, both for the spouses and for offspring and for society, Pius XI describes:
"A. And first indeed, the spouses a) in this firmness have a certain seal of perpetuity, which the generous handing over of one's own person and the intimate association of their souls by its own nature so greatly demands, since true charity knows no end. b) Besides, a firm bulwark is built up for faithful chastity against incitements to infidelity, if any are presented interiorly or exteriorly; every access is closed to anxious fear whether in time of adversity or old age the other spouse will depart, and in its place quiet certainty is established. c) Likewise provision is most fittingly made for preserving the dignity of each spouse and for mutual aid to be furnished, since through the indissoluble bond, perpetually persevering, the spouses are continually admonished that they entered the nuptial fellowship not for the sake of perishable things, nor that they might serve cupidity, but that they might mutually procure for themselves higher and perpetual goods, which fellowship cannot be dissolved except by death.
"B. Provision is also made very well for the protection and education of children, which must be extended through many years, since the grave and lasting burdens of this office are more easily borne by parents with united powers.
"C. Nor do lesser goods arise for the whole human fellowship. For by experience we know that the unshaken firmness of marriages is a most abundant source of honorable life and integrity of morals; and when this order is preserved, the happiness and welfare of the republic are placed in safety: for such as are the families and men from which it consists, such is the city, as the body from its members.
"Wherefore, both concerning the private good of the spouses and of offspring, and concerning the public good of human society, those who strenuously defend the inviolable firmness of matrimony deserve very well."
- But as many goods as flow from indissolubility, so many evils, on the contrary, are apt to follow from divorce, which the Pontiff shows after Leo XIII: "Here, namely, with the bond unharmed, we behold marriages safe and secure; there, with departures of spouses proposed, or exposed to the very dangers of divorces, the nuptial covenants themselves become mutable or certainly liable to anxious suspicions. Here mutual benevolence and the association of goods are confirmed marvelously; there, by the very power of departure, they are most miserably weakened. Here most opportune safeguards are added for the chaste fidelity of the spouses; there pernicious incitements to infidelity are supplied. Here the reception, protection, and education of children are advanced efficaciously; there they are affected by ever graver detriments. Here a manifold access to discords between families and relatives is closed; there occasion of discords is offered more frequently... Here above all the dignity and office of women, whether in domestic or civil society, are happily restored and reestablished; there they are unworthily depressed, since wives are put in danger lest, after they have served the lust of men, they be held as abandoned."