Section 2. On the Consummated Matrimony of Infidels.

How it is dissolved. Even consummated matrimony of infidels can be dissolved by divine law in the case of the Pauline privilege, or in the case of the Apostle, as they say,¹ and through dispensation of the supreme pontiff.

This privilege is called Pauline because it was promulgated to us by St. Paul; it is also called the privilege of the faith, because it was divinely granted in favor of the faith or baptism. In interpreting the words of St. Paul theologians disagree to this extent, that some affirm an immediately divine power is promulgated by them, while others think they present a power only mediately divine, but immediately conceded to the apostles and the Church. But the former opinion is to be preferred, since the Holy Office expressly declares that this privilege was granted by Christ the Lord in favor of the faith and promulgated through the Apostle Paul.²

¹ "If any brother has an infidel wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an infidel husband, and he consents to dwell with her, let her not put away her husband. But if the infidel departs, let him depart: for a brother or sister is not subject to servitude (of matrimony contracted in infidelity) in such things; but God has called us in peace." 1 Cor. 7, 12 ff. Cn. 1120.

² S. Office, July 11, 1886. Cf. Zeitschrift f. k. Th. XVI (1892), p. 158 f.

520. On the Pauline Privilege.¹ The Pauline privilege is a right divinely granted, in certain circumstances, to the spouse converted from infidelity and baptized of entering another matrimony, by the entering of which the matrimony contracted in infidelity is dissolved.

1. That matrimony contracted and consummated in infidelity can be dissolved is declared by these words: But if the infidel departs, let him depart: for a brother or sister is not subject to servitude in such things. Namely, by the will of Christ care must be taken that conversion to the faith not be troublesome and burdensome to him who is converted; but conversion would be very burdensome to the faithful party if it were not licit for that party to pass to other nuptials: for the party would have either to remain unmarried or to cohabit with the infidel spouse with trouble of life and danger to the faith. Therefore Christ willed that the bond of matrimony contracted in infidelity could be dissolved.

By force of the Pauline privilege, the converted party does not have the faculty of entering new nuptials except with another Catholic party. Therefore, if that party contracted with an infidel party, the matrimony would be invalid because of the impediment of disparity of cult; and if that party contracted with a heretical or schismatic party, the matrimony would indeed be valid, but illicit because of the impediment of mixed religion. In the former case the pontiff dispenses; in the latter, however, no dispensation is given.²

2. Matrimony contracted in infidelity is not dissolved when baptism is received, nor when the infidel party declares that he or she does not wish to cohabit with the faithful party, but when the faithful party enters another matrimony.³

Therefore if the faithful party does not contract a new matrimony, and afterward the other party also is converted, it is no longer licit to use the Pauline privilege, because when the end of the privilege ceases through the conversion of the infidel party, the privilege itself ceases; indeed per se they are held to restore the fellowship of life, since matrimony still exists between them.

¹ Cf. De Becker, p. 438 ff.; Wernz IV, n. 701 ff.; Biederlack, "Uber das sog. paulinische Privilegium" (Zeitschr. f. k. Th. VII [1883], p. 308 ff.).

² Cf. Genicot II, n. 559, 5.

³ S. Office, July 11, 1866. Cn. 1126.

521. Four Conditions are required so that the faithful party can pass to other nuptials:

1. That the matrimony was contracted in infidelity; therefore if a spouse defects from the faith through apostasy, the other faithful party cannot enter a new matrimony.

Two spouses born of heretical or schismatic parents can use the Pauline privilege if it is established that they were not baptized before matrimony.¹ But the infidel party who had contracted matrimony with a faithful party through dispensation of the supreme pontiff cannot use it if that party is converted to the faith.²

2. That one party be converted to the faith through received baptism; for the privilege was granted in favor of those who are converted to the faith, lest they be deterred from embracing the faith.

Therefore a catechumen cannot use this privilege; but since conversion to the faith is made through reception of baptism, even an infidel who is converted to a heretical sect can enjoy this privilege, provided he or she is validly baptized.³

3. That the infidel party depart; and one is said to depart when these two things concur: a. if the infidel does not wish to be converted, b. and does not wish to cohabit peacefully with the faithful party.

a. The infidel does not wish to cohabit peacefully if he or she does not wish to cohabit at all, or only with contumely of the Creator, that is, in such a way that either directly or indirectly the faithful party is induced to grave sins: as if the faithful party, because of cohabitation with the infidel party, is exposed to the danger of losing the faith; or if the infidel prohibits the praise of God and the conversion of domestics, if the infidel does not permit the Christian education of offspring, if the infidel refuses to dismiss concubines, etc.

b. If the infidel party indeed refuses to be converted but wishes to dwell peacefully with the converted party, the latter cannot by force of the Pauline privilege pass to other nuptials; for St. Paul says: If he departs, let him depart; therefore only under the condition of departure are new nuptials permitted by St. Paul. Nevertheless the faithful party can separate from the infidel as to bed and table, indeed through dispensation of the supreme pontiff can also pass to other nuptials.

c. This privilege has force not only where the infidel party departs before or shortly after the baptism of the other party has been received, but also where the infidel departs afterward, when already for many years he or she had cohabited with the faithful party and had consummated the matrimony, provided the faithful party after baptism did not give the infidel a just cause of departing, e.g., through committed adultery.⁴

d. The faithful party cannot use the Pauline privilege if not the infidel spouse personally but the infidel's relatives do not allow the faithful party to cohabit peacefully with the spouse.

4. That an interpellation of the infidel spouse precede, unless dispensation from it has been obtained.

Note. On the extension of the Pauline privilege. The supreme pontiffs Paul III, Pius V, and Gregory XIII had granted for certain regions of missions that matrimony contracted in infidelity, if one party is converted to the faith and receives baptism, would be dissolved even in those circumstances in which the Pauline privilege could not be applied. Now those concessions previously given for particular places are extended also to other regions in the same circumstances, that is, to all regions in which the same circumstances recur.⁵

Paul III, by the constitution Altitudo, June 1, 1537, granted that a faithful husband who had several wives may retain the one who is converted with him, or at least wishes to cohabit with him without contumely of the Creator, even if she is not the first or legitimate wife.

Pius V, by the constitution Romani Pontificis, August 2, 1571, granted that a faithful husband may retain from his wives the one who is converted with him, even if she is not the legitimate one.

Gregory XIII, by the constitution Populi, January 25, 1585, not only granted dispensation from interpellation if this could not be made, but also declared valid a matrimony contracted with interpellation omitted, even if the infidel party who was not interpellated would have wished to cohabit, indeed even if in the meantime that party was converted to the faith.

¹ S. Office, March 14, 1901.

² Cn. 1120, 2.

³ Cf. Palmieri, De matrim. christ., thesis 27; Arendt, Archiv f. k. Kirchenrecht XXXXVI, p. 402 ff.; Wernz IV, n. 702.

⁴ S. Office, August 5, 1759; July 11, 1886. Cn. 1124.

⁵ Cn. 1125.

522. On the Interpellation to Be Made.

1. After baptism has been received, before a new matrimony is contracted, the infidel spouse must be interpellated: a. whether he or she also wishes to be converted to the faith; b. whether at least he or she wishes to cohabit peacefully with the faithful party.¹

The interpellation is prescribed for this end, that the departure of the other party be certainly established.

2. Interpellation must always be made, unless the Holy See has declared otherwise.²

a. The departure of the infidel spouse can be established not only from interpellation, but in particular cases without interpellation from other facts, as if the infidel husband casts the converted wife out of the house. But if the will of the infidel party to depart is already abundantly established, the interpellation is not for that reason to be omitted.

b. There are regions in which the faithful party, because of the common danger of perversion and because of scandal of the faithful, is not permitted to cohabit with the infidel party. In general cohabitation is permitted in regions of infidels and prohibited in Christian regions; everywhere, however, cohabitation with Jews is prohibited to converts, unless the Jews themselves wish to be converted. In regions in which, for removing danger of perversion or scandal, cohabitation with an infidel is prohibited to the faithful party by ecclesiastical law, it is licit for the faithful party to pass to other nuptials if the infidel does not wish to be converted, even if the infidel wishes to cohabit.

3. Interpellation is necessary for the validity of the new matrimony: "Before the converted and baptized spouse validly contracts a new matrimony, he or she must interpellate the non-baptized party."³

4. The infidel spouse must be interpellated.

If a husband converted to the faith had several wives, only the legitimate one, who is the first, must be interpellated, unless it is established that the matrimony with the first was invalid. But if one of the wives is converted to the faith, the converted husband by dispensation of the supreme pontiff, after dismissing the others, can retain her as legitimate wife, even if she is not the first whom he had married, and even if the first consents to cohabit without contumely of the Creator, unless she herself also wishes to be converted.⁴

5. As regards the formality of the interpellation, it must be made a. after the baptism of the faithful spouse, and this by ecclesiastical law;

b. by the authority of the ordinary of the converted spouse, in judicial form, or at least summarily and extra-judicially;

c. a private interpellation by the converted person personally is always valid, and if the form prescribed above is not possible, also licit, provided the fact of the interpellation can be established either by an authentic document or by two witnesses;

d. at least one; several interpellations are not required for satisfying the precept.

The ordinary can also grant to the infidel spouse, if he or she has sought them, delays for deliberating, but the person must be warned that, if the delays have passed uselessly, the response will be presumed negative.

6. From making interpellation, the supreme pontiff grants dispensation for a grave cause; a grave cause will be present then, if it is morally established that the infidel spouse cannot be interpellated, or that the interpellation will be useless or gravely dangerous.⁵

Once an interpellation has been made, the faithful party can enter new nuptials whenever it pleases him or her, even much time afterward, without need of a new interpellation. But if dispensation from interpellation has been obtained, a new dispensation is needed if the matrimony is delayed beyond a year.⁶

¹ Cn. 1121, 1.

² Cn. 1121, 2.

³ Cn. 1121, by which the controversy previously carried on was resolved in that sense which Gasparri (II, n. 1090) had already previously defended.

⁴ S. Office, March 28, 1860. Cf. constitution of Pius V, Romani Pontificis, August 2, 1571; S. Office, November 22, 1871; Wernz, n. 703 ff.

⁵ S. Office, March 13, 1901.

⁶ S. C. de Propaganda Fide, June 26, 1829.

523. Note. Just as the faithful party can enter other nuptials, so also can that party enter religion or receive sacred orders. Whether matrimony contracted in infidelity is dissolved through religious profession, just as it is dissolved through another matrimony, is not certainly established; but that matrimony contracted in infidelity is not dissolved through reception of sacred orders is certain.

a. Sanchez indeed thinks that there is no reason to doubt concerning dissolution of matrimony through religious profession; for although neither in law nor in the divine letters is there attributed to religious profession the force of dissolving consummated matrimony in infidelity, nevertheless there exists a certain reason for attributing that force to profession, because profession dissolves ratified matrimony of the faithful, whose bond is firmer than consummated matrimony of infidels. But since this efficacy of religious profession is established neither from the divine letters nor from canon law, the matter remains doubtful until the Church defines it.

b. If an infidel woman is converted after her faithful husband has already received sacred orders, and she desires to pass to other nuptials, dispensation must be sought, either so that the husband may return to his wife or so that the wife can enter new nuptials.¹

¹ Sanchez, l. 7, disp. 77, n. 9. Ballerini-Palmieri VI, n. 472 ff. Lehmkuhl I, n. 709 (n. 932).

524. On the Dispensation of the Supreme Pontiff. Matrimony contracted in infidelity, even if it has been consummated, can be dissolved through dispensation of the supreme pontiff, if either one or both parties are converted to the faith. The matrimony of infidels, as long as each party remains in infidelity, even if it has not yet been consummated, cannot be dissolved by the supreme pontiff, because infidels are not subject to his jurisdiction; but as soon as at least one of the spouses is converted to the faith, the matrimony by reason of the faithful party is subjected to the jurisdiction of the supreme pontiff, who by his power can dissolve it, even if it was consummated in infidelity, provided it has not been consummated after the conversion of both. This is clear from the fact that the supreme pontiff has already rather often dissolved marriages of this kind.

Theologians still dispute today concerning this question. Those who deny this power of the supreme pontiff say that the acts of the Holy See concerning the marriages of infidels are authentic declarations of divine law or of the Pauline privilege;¹ but those who attribute this power to the supreme pontiff draw especially from the acts themselves of the Holy See the argument for asserting it.² The Holy See itself purposely abstains from deciding the question, and in its decisions now uses those modes of speaking which do not expressly signify the dissolution of matrimony contracted in infidelity, but only dispensation from interpellation.³

The power of dissolving consummated marriages of infidels, which is attributed to the supreme pontiff, seems to be explained thus: the very power by which marriages are dissolved in favor of the faith is immediately divine and of divine law, but the supreme pontiff by his power can determine the conditions under which marriages of this kind are dissolved, just as St. Paul by his apostolic authority determined that matrimony can be dissolved if the infidel party departs.⁴

a. The internal reason on account of which the supreme pontiff can dissolve consummated matrimony in infidelity as soon as it is subject to his power must be taken from the lesser firmness which belongs to marriages of infidels: for consummated matrimony of infidels is less firm than ratified matrimony of the faithful, because it less perfectly signifies the indissoluble union of Christ and the Church; but ratified matrimony of the faithful can be dissolved by the supreme pontiff; therefore so also can matrimony contracted and consummated in infidelity.

b. The external reason is taken from fact: for there is a constant practice of the Holy See of permitting to newly converted infidels another matrimony even in those circumstances in which the Pauline privilege cannot be applied, because the required conditions are lacking, but especially because the infidel party does not depart; but this could not be permitted unless the prior matrimony were dissolved by declaration of the supreme pontiff.

c. The supreme pontiffs attribute this power to themselves in express words: "We, considering that marriages of this kind contracted among infidels are indeed true, yet are not to be considered so ratified that they cannot be dissolved when necessity urges."⁵

¹ Pontius, Schmalzgrueber, Benedict XIV, De Angelis, etc.

² Sanchez, Pirhing, St. Alphonsus, D'Annibale, Ballerini-Palmieri, Gasparri, Feije, De Becker, and the twelve distinguished theologians of the Society of Jesus must not be passed over, among whom are numbered Bellarmine, Azor, and Ledesma, who in 1589 offered to the supreme pontiff a disputation written by themselves concerning this power. Cf. Zitelli, De dispens. matr., n. 183 ff.

³ Wherever dissolution of matrimony contracted in infidelity was sought because the interpellation, or rather the response to the interpellation, was impossible, as in the case in which an infidel wife had fallen into insanity, the Holy See granted dispensation from interpellation. Cf. S. Office, December 9, 1803, Monitore eccl. 1904, p. 241.

⁴ Cf. Lehmkuhl, Theol. mor. II, 709 (n. 932).

⁵ Gregory XIII, constitution Populis ac nationibus (January 25, 1585); Urban VIII has similar things.