Section — Prümmer, Manuale Theologiae Moralis
§ 1. On Perfect Divorce Or The Dissolution Of The Matrimonial Bond
665. Proposition 1. "A non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved with regard to the bond:
a) by the law itself through solemn religious profession;
b) by a dispensation of the Supreme Pontiff, provided that a just cause is present and both parties request it, or at least one of them, even if the other is unwilling."258
The first part of the proposition is defined by the Council of Trent:259 "If anyone says that a ratified, non-consummated matrimony is not dissolved by the solemn religious profession of one of the spouses, let him be anathema."
It is said: through solemn religious profession. Therefore matrimony is dissolved neither by entrance into religion, nor by simple profession,260 nor by a solemnized vow of chastity in the subdiaconate. Solemn profession is found in several ancient religious orders of men, for example, the Benedictines, Dominicans, Franciscans, and so forth; but indeed only in a few religious orders of women, for example, the Poor Clares, Dominican nuns of the Second Order, and so forth. Hence in practice it must be seen whether there is a profession which is recognized by the Church as solemn.
Since, however, according to the current discipline of the Church solemn vows are ordinarily not emitted until at least four years after entrance into religion, it follows that the spouse remaining in the world would have to wait for at least four years before being able to enter new nuptials. But because this is sometimes hard, when the case occurs permission is to be sought from the Holy See for solemn vows to be emitted immediately after the novitiate. Solemn profession does not dissolve a ratified matrimony unless it is joined with a vow of perfect chastity. Hence if in some military orders a solemn profession was indeed emitted, but with conjugal chastity only, or with a prohibition against proceeding to second nuptials, such a solemn profession did not dissolve a ratified matrimony.261
A vow, as they say, solemnized in the reception of the subdiaconate likewise does not dissolve a preceding ratified matrimony (although it invalidates a subsequent matrimony, as will be said below). Concerning this matter John XXII262 decreed: "Desiring to put an end to the ancient contention ... by the present edict we declare that, although a vow solemnized through the reception of sacred order, as regards impeding a matrimony to be contracted and invalidating it if contracted afterward, must be accounted efficacious according to the statutes of the canons, nevertheless, for dissolving one previously contracted, even if it has not been consummated through carnal intercourse, since we find this decreed neither by divine law nor by the sacred canons, it is to be accounted invalid."
258 Thus the Code of Canon Law, c. 1119.
259 Sess. 24, can. 6, De matrimonio (Denz., n. 976).
260 A simple vow of chastity or simple profession (even that of the Jesuits) does not dissolve a ratified matrimony. Thus Pius IX expressly decreed on January 25, 1861, saying: "A ratified and non-consummated matrimony is dissolved only by solemn profession of vows, but not by profession of simple vows." A few authors, for example, Pontius, Leurenius, Bouix, and Perrone (who, however, later corrected this error), falsely attributed the same force of dissolving matrimony to simple vows emitted in the Society of Jesus after two years from entrance.
261 Cf. Feije, loc. cit., n. 515.
262 Extravag., c. un., tit. 6, De voto.
666. By what law solemn religious profession dissolves a ratified matrimony is much disputed among authors. A few, for example, Habert and Collet, teach that this effect arises from natural law, that is, from the very nature of solemn profession; very many, for example, Suarez, Layman, Schmalzgrueber, Pirhing, Leitner, Gasparri, Wernz, De Smet, and others,263 teach that it arises from ecclesiastical law alone; almost all Thomists and several outsiders, for example, Valentia, Sanchez, and Benedict XIV,264 derive this effect from positive divine law. The reason for this last opinion is manifold:
a) "Before carnal intercourse there is only a spiritual bond between the spouses; but afterward there is also a carnal bond between them; and therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so before carnal intercourse it is dissolved through entrance into religion; because religion is a certain spiritual death, by which someone, dying to the world, lives to God." Thus St. Thomas.265 This comparison of profession with spiritual death occurs very frequently among the ancient authors.
b) Ratified matrimony, as a true sacrament, is indissoluble by divine law. Therefore it cannot be dissolved except through something which has the same sanction. Since, therefore, it is of faith that solemn religious profession dissolves a ratified matrimony, it is more fittingly said that this effect was granted to it also by divine law. This is confirmed: If solemn religious profession did not dissolve by divine law, but only by ecclesiastical law, then some Pope could decree that this effect should no longer belong to it.266 But this seems impossible because of the definition of the Council of Trent brought forward above, which is a dogmatic and not merely a disciplinary definition, as is now most commonly admitted.267
From c. 7, X 3, 31, theologians and canonists deduced that a two-month period was granted to spouses, within which they could deliberate upon entering religion, and therefore that they were not bound to render the conjugal debt.268 The Code of Canon Law is altogether silent concerning this two-month period; therefore, according to the current discipline, a spouse is bound immediately after matrimony has been duly contracted to render the conjugal debt to the other party reasonably requesting it.269
Moreover, in our times it can scarcely ever happen that someone lawfully enters matrimony with the intention of entering religion within two months; because the civil laws existing almost everywhere and prescribing civil matrimony do not permit divorce because of mere entrance into religion, and consequently grave inconveniences could easily arise for the party left in the world if someone first contracted matrimony and then shortly afterward entered religion. Moreover, according to the current discipline, no married person can be validly admitted to the novitiate without previous permission of the Holy See.270
263 Fahrner, Gesch. der Ehescheidung im kan. Recht, 292 ff., clearly sets forth the diverse opinions of the diverse authors.
264 Quaest. can. et mor., q. 546, n. 35.
265 Suppl., q. 61, a. 2.
266 Wernz-Vidal (Ius can., V, n. 626, note 47) attempts to prove that the Supreme Pontiff can truly remove this effect from solemn profession, citing a fact known to all: in France, Belgium, and other regions nuns no longer emit solemn profession. Therefore the Pope removed solemn profession in some orders, and a fortiori he can remove from solemn profession the force of dissolving a ratified matrimony. No one fails to see how weak this argument is. It is freely conceded that the Pope can suppress solemn profession in some orders, indeed can suppress some entire order, as, for example, Clement XIV did concerning the Society of Jesus; but it by no means follows from this that the Pope can indeed leave a truly solemn profession to some order and nevertheless remove from that profession the effect of dissolving a ratified matrimony. This is also evident from the following example: someone can extinguish a light entirely; but while the light exists, he cannot prevent the light from producing the effect of illuminating. Still weaker is the argument repeated a hundred times: the solemnity of a vow is from the institution of the Church, as Boniface VIII testifies; therefore the Church can freely change, indeed abolish, this solemnity. The response is: Certainly accidental solemnity is from the institution of the Church, but by no means essential solemnity. We have written at greater length concerning this matter in Commersches Jahrbuch, XXII, 55 ff.
267 Cf. Billot, De eccl. sacr., II, thesis 45, p. 415.
268 Cf. St. Thomas, Suppl., q. 62, a. 2, ad 2.
269 The Code of Canon Law, c. 1111, decrees concerning this matter: "Each spouse has from the very beginning of matrimony an equal right and duty as regards the acts proper to conjugal life."
270 Code of Canon Law, c. 542, n. 1.
667. You will ask: 1. If carnal intercourse was had between the betrothed before matrimony, but not yet after matrimony was duly contracted, does the privilege of dissolving the bond of the contracted matrimony through solemn profession remain? Affirmatively. The reason is that such a matrimony is truly ratified only and not consummated. This opinion seems to be placed beyond all doubt after Leo XIII (in 1892) abolished presumed matrimony, which was judged to be present when the betrothed, with marital affection, completed carnal intercourse.271
2. Can solemn religious profession dissolve the bond of a matrimony which was indeed consummated in infidelity, but after the conversion of one or both spouses remained without carnal intercourse? Theoretically speaking, the affirmative opinion is truer and more ancient. St. Bonaventure272 already taught it, and Dominic Soto,273 Sanchez,274 and others follow him. The reason is that the ratified matrimony of Christians, as a sacrament, constitutes a stronger bond than a consummated legitimate matrimony; which is plainly evident from the fact that, by the Pauline privilege, a subsequent ratified matrimony dissolves a preceding consummated legitimate matrimony. Now solemn religious profession dissolves the ratified matrimony of Christians. Therefore, a fortiori, it dissolves a consummated legitimate matrimony, according to the maxim of Roman Law: "If I conquer him who conquers you, much more do I conquer you."275
In practice, however, since a matter of great moment is involved and the proposed opinion is not certain, the Holy See is to be approached, which, according to the things said above, can dissolve the bond in marriages of this kind.276 It is certain that the bond of such a matrimony is not dissolved by the reception of sacred orders.
271 Cf. Wernz-Vidal, Ius can., V, n. 628.
272 In IV, dist. 39, a. 2, q. 2 (Ad Aquas Claras, 1899, IV, 839 f.).
273 In IV, dist. 39, q. un., a. 4.
274 De matrimonii sacramento, l. 7, disp. 76, nn. 8-10, where he says that this opinion is altogether to be held.
276 Cf. Fahrner, Gesch. der Ehescheidung, 313 f.
668. The second part of the proposition is indeed not of faith, but today it is so certain that it would be rash to deny it, and therefore it is deservedly called "Catholic doctrine."277 For the Holy See, already from the times of Martin V, has constantly and frequently dissolved non-consummated marriages if a grave cause was present. But it is impious to assert that the Holy See constantly errs in so grave a matter, namely, by using a power which it does not have.278
For obtaining this dispensation, two things are required: 1. a just cause; for divine law is involved, in which the Supreme Pontiff cannot dispense without a just cause; 2. a petition by at least one of the spouses, since the matrimony cannot be dissolved if both spouses are unwilling.
Certain older authors of great name denied such power to the Supreme Pontiff, since the practice of the Roman Curia at that time was not so certain. It must also be admitted that the intrinsic reasons brought forward by some authors for the dispensing faculty of the Supreme Pontiff are not very convincing; and consequently, before the practice of the Roman Curia in this matter was constant and known to all, the diversity of opinions is easily understood. For the argument often brought forward for this faculty of dispensing, taken from the words of Christ to Peter, "Whatsoever thou shalt loose upon earth, it shall be loosed also in heaven," truly proves too much and consequently proves nothing; for there is no reason why from the same text a faculty of dissolving even a consummated matrimony could not be inferred, which faculty nevertheless no one concedes to the Supreme Pontiff.
We have already admonished above that the indissolubility of matrimony cannot be derived either solely from the nature of the contract or solely from the aspect of the sacrament, but from the positive will of God. Moreover, it seems certain that a ratified matrimony of Christians is not of less dignity and efficacy, both by reason of the contract and by reason of the sacrament, than a consummated matrimony, because the copular theory is to be rejected, as was said above. But if the Supreme Pontiffs nevertheless very frequently dissolved ratified matrimony and never the consummated matrimony of Christians, this manner of acting and faculty seems to be derived from the positive will of Christ, who will be with His Church even to the consummation of the world and does not permit her to err in a matter which so intimately touches the morals of the entire Christian people.279
The power of the Supreme Pontiff being admitted, it is remarkable into how diverse opinions theologians and canonists go in explaining the intrinsic nature of this power. Some will that it be an act of judgment declaring the nullity of the matrimony; some call it a dispensation properly so called, others one broadly so called; finally, some will that it be only a declaration of divine law. Moreover, all these appear to be sufficiently useless disputes. It must, however, be committed to memory that the Supreme Pontiff cannot even validly dissolve a ratified matrimony without grave cause. For divine law is involved, in which the Pope cannot arbitrarily dispense.
277 Sacred Congregation of the Sacraments, May 7, 1923 (Acta Ap. Sed. XV, 389).
278 Benedict XIV (Quaest. can., q. 279) says: "No question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing over a ratified and non-consummated matrimony, since today the affirmative opinion is common among theologians and canonists and received in practice, as is notorious."
279 Among canonists, Alanus (at the beginning of the thirteenth century), in the apparatus to Compilation I, seems to have been the first who expressly taught that the Pope can dissolve the bond of a ratified matrimony. Vincentius Hispanus, Hostiensis, and Johannes Andreae follow him (cf. Fahrner, loc. cit., p. 208 f.). Among theologians, Cajetan (Opusc. 28) seems to have been the first explicit assertor of this doctrine. Certainly St. Antoninus (Summa theol., p. 3, tit. 1, c. 21), who himself saw dispensations of this kind granted by Martin V and Eugene IV, holds this power of the Supreme Pontiff as probable, but speaks very hesitantly. Theologians of the thirteenth century denied this power of the Supreme Pontiff, for example, St. Bonaventure, Scotus, and Paludanus, whom several others later follow, for example, Francis de Vitoria, Dominic Soto, Peter Soto, Sylvius, Tournely, Drouven, Billuart, Reiffenstuel, and others. But already Thomas Sanchez, who treats this question very well (De matrimonii sacramento, l. 2, disp. 14-16), cited fifty authors for the opinion teaching that the power of dispensing in a ratified and non-consummated matrimony belongs to the Supreme Pontiff.
669. Scholion. On the manner of petitioning for a dispensation over a non-consummated matrimony. When there is question of a dispensation to be petitioned over a non-consummated matrimony, it is customary to proceed in the following manner: The spouse who petitions for the dissolution of the non-consummated matrimony is to present his petition to the bishop (through the pastor), with an accurate statement of the fact and of the motives for the dispensation to be petitioned. After the bishop has extrajudicially280 investigated all things to be known or necessary to know, he sends the received petition to the Sacred Congregation of the Sacraments. (The bishops of missions, however, must send the petition to the Sacred Congregation for the Propagation of the Faith.)
Upon receiving this extrajudicial information, the Sacred Congregation is accustomed to delegate the bishop or an investigating judge to make the processual informations. How these processual informations are to be made is indicated in the Decree concerning processes in causes of dispensation over a ratified, non-consummated matrimony issued by the Sacred Congregation of the Sacraments on May 7, 1923,281 for example, concerning the defender of the bond, bodily inspection, testimony of the seventh hand, and so forth.
The object of this information is twofold: the verification of the motives for dispensation and the proof of the non-consummation of the matrimony. To verify the motives for dispensation is not so difficult; on the contrary, it is sometimes most difficult to prove with certainty the non-consummation of the matrimony. A dispensation is never granted unless it is morally certain that the matrimony has not been consummated.
Canonists are accustomed to distinguish three cases: 1. non-consummation of a matrimony "constrained by time," that is, if the spouses, after the matrimony was celebrated, never cohabited or remained secretly in the same place; 2. non-consummation of a matrimony "with intercourse not attempted," that is, when the spouses indeed cohabited in the same house, but never attempted to use matrimony; 3. non-consummation of a matrimony "with intercourse attempted," that is, if the spouses also attempted to use matrimony, but were unable to complete this, for example, because of impotence. The fact of the non-consummation of the matrimony is to be proved by sworn witnesses and by indications not doubtful, for example, by bodily inspection.
An example of non-consummation "constrained by time" is furnished by the Nicosian cause of January 19, 1889, where the husband's mother, immediately when the spouses went out from the church after the matrimony had been celebrated, carried the husband off by force; nor did the spouses ever meet afterward.282 An example of non-consummation "with intercourse not attempted" is furnished by the Leopolitan cause, which had been dismissed three times and obtained the requested dispensation only on the fourth occasion. Behold the summary of the case: A certain count married a countess who was already pregnant from an illicit love; for a sufficiently long time the spouses cohabited, but both the husband and the wife swore that they had never consummated the matrimony. At length they obtained a dispensation over the ratified and non-consummated matrimony.283 An example of the third case, namely, non-consummation of a matrimony "with intercourse attempted," is furnished by all cases in which a matrimony is dissolved because of the impediment of impotence.284
After the bishop has completed all the informations and sent them to the Sacred Congregation of the Sacraments, the Most Eminent Cardinals of this Congregation, after hearing the opinions of the consultors, decree whether the dispensation over the ratified matrimony is to be recommended to the Most Holy Father or not. If they decree affirmatively, the secretary of the Congregation proposes the case to the Supreme Pontiff, who is then accustomed to grant the requested dispensation. From all these things it is evident how great is the diligence employed by the Roman Curia before it dissolves the bond of a ratified and non-consummated matrimony.
280 Cf. the Code of Canon Law, c. 1963. If the bishop wished to proceed judicially without a special delegation of the Holy See, the whole process would be null (cf. the Piscian cause, November 24, 1906, in Analecta ecclesiastica XIV [1906], 441). According to the present practice, the prior judicial inquiry concerning the fact of non-consummation pertains to a single investigating judge, to whom the Sacred Congregation of the Sacraments has committed this inquiry. Code of Canon Law, c. 1966.
281 Acta Ap. Sed. XV, 389 ff.
282 Cf. Leitner, Lehrb. des kirchl. Eherechtes, 592.
283 Cf. Analecta ecclesiastica IV (1896), 264.
284 See the two cases related in Analecta ecclesiastica III (1895), 159-160.
670. Proposition 2. The matrimony of unbelievers, even when consummated, can be dissolved with regard to the bond according to the Pauline privilege in favor of the faith.285
Proof from Sacred Scripture. After St. Paul the Apostle inculcated the indissolubility of matrimony, he says these things: "For to the rest I speak, not the Lord: If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband.... But if the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases; but God hath called us in peace."286
Innocent III287 authentically declared this text, teaching: "For if one of the unbelieving spouses is converted to the Catholic faith, while the other wills to cohabit with him either in no way, or not without blasphemy of the divine name, or in order to draw him into mortal sin: the one who is abandoned will pass to second vows, if he wills; and in this case we understand what the Apostle says: If the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases, and also the canon in which it is said: 'An insult to the Creator dissolves the law of matrimony with respect to him who is abandoned.'"
This authentic declaration of the text of the Apostle has been reduced to practice very frequently by the Roman Pontiffs from the times of Innocent III onward, so that no doubt can exist that the matrimony of unbelievers is dissolved with regard to the bond if the conditions stated by the Apostle Paul are present. More probably this dissolution arises from divine law itself. Therefore the Holy Office, on July 11, 1866, calls this privilege one granted by Christ in favor of the faith and promulgated through the Apostle Paul.288
285 Code of Canon Law, c. 1120.
286 1 Cor. 7:12-15. In the Greek text there is: τοῖς δὲ λοιποῖς, that is, "but to the rest," which words are to be referred to what follows and not to what precedes.
287 C. 7, X 4, 19. Before the times of Innocent III the interpretation of this text was by no means concordant. Cf. Fahrner, Gesch. der Ehescheidung, 146 ff.
288 Collect. de Prop. Fide, I, n. 1297; cf. Wernz-Vidal, Ius can., V, n. 631, note 56.
671. Conditions required for the Pauline privilege: A legitimate and consummated matrimony contracted by two unbelieving spouses is dissolved with regard to the bond:
1. if either party is validly baptized (whether in the Catholic Church or in any sect), and
2. if the party persisting in unbelief either a) departs or refuses to cohabit peaceably with the baptized party, or b) does not will to cohabit without insult to the Creator, for example, if that party attempts to draw the baptized party into mortal sin. In these cases the matrimony contracted in unbelief is not indeed dissolved by baptism itself, but when the baptized party validly contracts a new matrimony.289 The individual conditions of the Pauline privilege are to be explained more fully.
It is said first: if either party is baptized.
It is therefore supposed that a valid matrimony was contracted before baptism. Hence, if a case occurs, it must first be seen whether some diriment impediment from natural, divine, or civil law perhaps stood in the way of the matrimony entered in paganism. It is evident of itself that the Pauline privilege has no place and is not necessary if the matrimony contracted was null. Since a positive doubt concerning the validity of a matrimony contracted by pagans occurs very frequently, a diligent examination and inquiry must first be made by the Ordinary.290 But if the validity remains doubtful, one must stand for the favor of the faith, so that the converted party may be able to enter new nuptials.291
289 Code of Canon Law, c. 1126.
290 Holy Office, December 9, 1874.
291 Holy Office, May 19, 1892, and April 19, 1899; Code of Canon Law, c. 1127.
672. The Pauline privilege cannot be employed:
a) if both unbelieving spouses receive baptism together, as the Holy Office expressly declared on July 11, 1866.292 For through their baptism the matrimony becomes a sacrament.
b) for catechumens not yet baptized, as the Holy Office expressly declared on March 13, 1901.
c) if, by a pontifical dispensation over disparity of cult, the Catholic party contracted matrimony with a non-baptized party who now has departed or no longer wills to cohabit without insult to the Creator. Thus the Code of Canon Law, c. 1120, § 2, decrees. It is evident of itself that in this case separation with regard to bed and habitation is lawful.293 But if a person born and baptized in a non-Catholic sect contracted matrimony with a non-baptized person, such a matrimony can be dissolved with regard to the bond (at least through a dispensation of the Holy See),294 after the baptized person has embraced the true faith.
d) If one of the faithful spouses passes over to heresy or to the error of paganism. This is now certain from repeated declarations of the Holy See. Celestine III seems to have thought the contrary, as was said above; but Innocent III already sanctioned the present doctrine.295
It is said second: is baptized in the Catholic Church or in any sect.
Certainly Innocent III, in his authentic interpretation of the Pauline privilege, speaks of Catholic baptism, and the privilege was not granted in favor of heresy, but of the true faith; nevertheless, since every valid baptism renders the baptized man a member of the true Church, almost all authors, for example, Feije, Scherer, Palmieri, Braun, Tarquini, Christian Pesch, Billot, Lehmkuhl, Gasparri, Wernz, De Smet, and others, teach that the privilege was granted in favor of any valid baptism. To this day, however, the Church has defined nothing expressly concerning this question.
It is said third: if the party persisting in unbelief either departs or refuses to cohabit peaceably with the baptized party, or does not will to cohabit without insult to the Creator.
The departure of the unbelieving party is therefore required; this departure can be either physical or moral. The unbelieving party physically departs if that party leaves the conjugal home and does not return. Moral departure is present in two cases: 1. if the unbelieving party causes quarrels and disputes or other harms; 2. when the unbelieving party attempts to draw the converted party into something gravely unlawful, for example, into apostasy, adultery, or the education of the offspring in unbelief. This moral departure renders conjugal life impossible, so that separation of the spouses is morally necessary because of the malice of the unbelieving party.
The physical departure of the unbelieving party need not necessarily be culpable, but simple absence suffices, provided, however, that the baptized party did not maliciously cause this absence, and indeed after baptism. The following case is worthy of note: A certain pagan sold his own wife into slavery, or his wife was taken away from him by force. Afterward he is baptized and desires to enter new nuptials. The wife who was sold indeed would will to cohabit with him, but he is unable to redeem her. It was asked whether in this case the baptized man could enter new nuptials. The Holy Office, on July 8, 1891, responded: "Insofar as he sold his wife before baptism, affirmatively."296 From this response it plainly appears that a malicious physical departure of the unbelieving party is not required. It suffices that the baptized party cannot cohabit peaceably with the unbelieving party. But that there may truly be certainty concerning this departure, there is altogether required:
292 Collect. de Prop. Fide, n. 1295.
293 Cf. Holy Office, August 5, 1759 (Collect. de Prop. Fide, n. 421).
294 Decree of the Holy Office, November 5, 1924.
295 C. 7, X 4, 19.
296 Collect. de Prop. Fide, n. 1760.
673. An interpellation, which is accustomed to contain two questions, namely:
1. whether the unbelieving party is also willing to be converted and to receive baptism;
2. if the response is negative, whether that party at least wills to cohabit peaceably without insult to the Creator.297
The first question is the principal one; hence, "if it should ever happen that a polygamist converted to the faith, after an interpellation has been made according to apostolic sanctions, has lived conjugally under hope of conversion with his first wife (since she alone was and is his legitimate wife), who meanwhile delays conversion and the reception of baptism for a longer time, it will be lawful for the bishop, after the truth of the matter has been well weighed, to declare that the faithful and baptized spouse is free to pass to other vows, yet with a faithful person."298
Concerning this interpellation, the following things are to be noted:
a) Regularly it is to be made in at least a summary and extrajudicial form by the authority of the Ordinary of the baptized party; nevertheless, it suffices if it was made otherwise, even privately, provided that it is established by a written document or by the attestation of two witnesses that it was actually made.299
b) It is altogether necessary; indeed several authors, for example, Feije,300 Leitner,301 and Wernz-Vidal,302 teach that it is necessary by divine law; the response of the Holy Office of June 12, 1859, favors this opinion, decreeing: "The fellow slave in question, if he has not been legitimately dispensed by the Apostolic See, is bound by divine precept to make the present interpellation to the other spouse."303
Nevertheless, saving a better opinion, it is not yet permissible to conclude from this: therefore, if this interpellation was omitted without a previous pontifical dispensation, the matrimony afterward contracted by the baptized party is null; for neither by St. Paul nor by the Supreme Pontiffs is this interpellation certainly prescribed under penalty of the nullity of the subsequent matrimony. For what is necessarily required from the words of St. Paul is the "departure of the unbelieving party"; but it is not determined how this departure must be established. Therefore, given the true departure of the unbelieving party, the matrimony of the baptized party afterward following does not seem to be invalid, as not being contrary to the Pauline privilege.
If perhaps in a particular case the matrimony was celebrated with the prescribed interpellation omitted, it seems that the rule established by the Sacred Congregation for the Propagation of the Faith on June 20, 1883, § 45, is to be observed (even after the Code, c. 1121, § 1): "But insofar as neither the interpellation nor a dispensation from it preceded, the first matrimony will indeed stand in the way of the second, but the Ordinary must suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what is to be done."
c) No one can dispense from making this interpellation by his own authority except the Supreme Pontiff,304 who has already done this several times, for example, St. Pius V by the Decree Romani Pontificis of August 2, 1571; Gregory XIII by the Letters Quoniam saepe contigit of January 25, 1583; Benedict XIV by the Letters In suprema of January 16, 1745.
Among the faculties which are customarily granted to apostolic vicars, it is read: "Of dispensing from the interpellation of spouses left in unbelief, provided that, after all diligences have first been employed, even through public newspapers, to discover the place where the unbelieving spouse dwells, and these have come to nothing, it is established at least summarily and extrajudicially that the said absent spouse cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the admonition."305
297 Code of Canon Law, c. 1121, § 1.
298 Holy Office, July 4, 1855 (Collect. de Prop. Fide, n. 1113).
299 Instruction of the Holy Office, September 16, 1824, to the Archbishop of Quebec; Code of Canon Law, c. 1122.
300 De imped. et dispens. matrim., n. 487.
301 Lehrb. des kirchl. Eherechtes, 604.
302 Ius can., V, n. 632.
303 The Holy Office said the same on September 16, 1824, dub. 3 (Collect. de Prop. Fide, n. 784).
304 Code of Canon Law, c. 1121, § 2.
305 Formula III of the Congregation for the Propagation of the Faith. Indeed, this faculty now seems to have been granted by common law, namely, by the Code of Canon Law, c. 1125, to all Ordinaries under the same circumstances and conditions.
674. It is said fourth: the first matrimony is not dissolved through baptism, but when the baptized party validly enters a new matrimony.306
For Innocent III says: "Through baptism marriages are not dissolved, but crimes are forgiven."307 Consequently, baptism is indeed the foundation and beginning of the Pauline privilege, but the completed effect is had through the subsequent matrimony of the baptized party.
Note. 1. The privilege of St. Paul is not lost even if the baptized party, after baptism, renewed marital consent or used matrimony with the unbelieving party.308 The Pauline privilege ceases, however, if the unbelieving party also receives baptism before the new matrimony of the baptized party.
2. "In a doubtful matter the privilege of faith enjoys the favor of law." Thus the Code of Canon Law, c. 1127. Therefore, if a doubt occurs whether in some case a matrimony can be dissolved by the Pauline privilege, for example, the matrimony of a Protestant with a Jew, the presumption stands not for the validity but for the dissolution of the matrimony.
306 Code of Canon Law, c. 1126.
307 C. 8, X 4, 19; cf. Code of Canon Law, c. 1126.
308 Code of Canon Law, c. 1124.
675. The following practical cases are easily resolved from the things said thus far.
1. The baptized party chooses to lead a celibate life; but the unbelieving party contracts a new matrimony. This matrimony is null, because the first matrimony has not yet been dissolved and the privilege was granted for the baptized party, not for the unbelieving party;309 for it is a favor of the faith.
2. After conversion, the baptized party lives maritally with the unbelieving party. After several years have elapsed, the unbelieving party takes other women as wives and does not will to dismiss them. The baptized party can depart and enter new nuptials, although perhaps unable to take along and educate the offspring begotten in the matrimony. The reason is that the Pauline privilege has not been extinguished.310
3. An unbelieving husband casts his baptized wife out of the home, contracts a new matrimony, and generates offspring. After some time he also is converted to the faith and is baptized. He is bound to dismiss the second wife unless the first wife who was cast out has in the meantime contracted another valid matrimony. The reason is that not the unbelieving but the faithful party became free, and the second matrimony of the unbelieving party is invalid. Certainly in practice it must be seen whether the first matrimony was certainly valid.
4. Two unbelievers, after contracting a legitimate matrimony and then dissolving it, pass to other nuptials. Each is afterward converted to the faith. Neither can remain in the second matrimony, at least if they received baptism together at nearly the same time. The reason is that the first matrimony was valid and legitimate and could not be dissolved by their own will and authority, nor was it in reality dissolved by the second nuptials, since these were not legitimate.
5. The baptized party, after the prescribed interpellations have been made, enters a new matrimony. Now the unbelieving party also can enter a new matrimony. The reason is that, although the privilege was given in favor of the baptized party, nevertheless it indirectly also redounds to the favor of the unbelieving party; and because the first matrimony has been duly dissolved by the baptized party, the unbelieving party also becomes free. Thus holds the common opinion.
6. One unbelieving spouse commits adultery, and for this reason is cast out by the other party; after some years that spouse is baptized, and asks the other party whether he or she now wills to cohabit peaceably, but suffers a refusal. That spouse can enter new nuptials.311 The reason is that the adultery committed is washed away by baptism, and the unbelieving party unreasonably repudiates the baptized party.
7. One unbelieving spouse is baptized, cohabits peaceably for some time with the unbelieving party, but afterward commits adultery and for this reason is cast out by the unbelieving party. Nevertheless, the baptized party cannot enter new nuptials, at least by force of the Pauline privilege. The reason is that the unbelieving party justly cast out the baptized party as an adulterer, nor is this crime of adultery destroyed through a subsequent baptism, since it was perpetrated after conversion.312
8. The unbelieving party indeed consents to cohabit without insult to the Creator, but does not permit the offspring born or to be born to be instructed in the Christian religion. The baptized party can pass to other nuptials with a Catholic person; for the refusal of the education of the offspring in the Catholic religion is equivalent to an insult to the Creator.313
9. An unbelieving woman who successively has several husbands is baptized. Her first legitimate husband no longer wills to cohabit with her; but the last husband indeed consents to cohabit peaceably, yet does not will to be converted. The woman must separate herself from the last man; or, if this is very hard, she must seek a dispensation over the impediment of disparity of cult in order to contract a true matrimony.314
309 Cf. Sacred Congregation of the Council, March 29, 1727 (Gasparri, loc. cit., n. 1086).
310 Cf. Holy Office, August 5, 1759, and July 11, 1886, ad 4; Code of Canon Law, c. 1124.
311 Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (Collect. de Prop. Fide, n. 690).
312 Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (ibid.). Cf. Holy Office, July 11, 1866 (ibid., n. 1295); Code of Canon Law, c. 1123.
313 Thus the Holy Office, December 14, 1848 (ibid., n. 1036).
314 Collect. de Prop. Fide, n. 1048.
676. Scholion. On dispensation over the bond of a matrimony which was consummated in unbelief. Authors ask here whether the Pope can dispense in the bond of a consummated matrimony of unbelievers if either one or both spouses have been baptized. In this matter certain things are certain, and certain things are not placed beyond every doubt:
1. It is certain that the Supreme Pontiff possesses no authority over marriages of this kind if neither spouse has received baptism. For the Church does not have jurisdiction over the non-baptized.
2. It is certain that the Supreme Pontiff is unable to dissolve the bond of a legitimate matrimony which, through the baptism of both spouses, was made ratified and, through intercourse following after the baptism of both, was also made consummated. The reason is that such a matrimony has become a consummated matrimony of Christians. Now the Pope cannot dissolve the bond of a consummated matrimony of Christians, as was proved above.
3. It is certain that the Supreme Pontiff can dissolve the bond of such a legitimate matrimony if either spouse has been baptized and the matrimony was never consummated, that is, neither before nor after baptism. For the Pope can dissolve the bond of a ratified and non-consummated matrimony of Christians, as was proved above. Therefore it is more certain that he can dissolve the bond of some non-consummated matrimony in which only one party is Christian and which more probably is not a sacrament.
4. It is more probable that the Supreme Pontiff can dissolve the bond of a legitimate matrimony which was consummated after the baptism of either spouse. Thus holds the more common opinion among modern authors.315 The reason for this opinion is twofold: one intrinsic, the other extrinsic. The intrinsic reason is that only the bond of a ratified and consummated Christian matrimony is indissoluble. But such a matrimony is not ratified and consummated (unless carnal intercourse took place after the baptism of both spouses). The extrinsic reason, however, is that the Supreme Pontiffs several times dissolved the bond of such marriages in which the conditions of the Pauline privilege were altogether lacking.
Thus, for example, St. Pius V316 permitted, "by his own motion and from certain knowledge and the fullness of apostolic power," that unbelieving Indians having several wives, after receiving baptism, could live in matrimony with whichever of those wives was baptized with them. Now here no mention is made of the departure of the unbelieving party, which nevertheless is a condition without which the Pauline privilege cannot be applied.
Gregory XIII,317 attending to the fact that "marriages contracted between unbelievers are indeed judged true, yet not so ratified that, when necessity urges, they cannot be dissolved," granted missionaries the faculty of dispensing so that any unbelieving spouse, after receiving baptism, "while the unbelieving spouse survives and without that spouse's consent being required or a response being awaited, may contract marriages with any faithful person, even of another rite, and solemnize them in the face of the Church, and, after they have subsequently been consummated by carnal intercourse, may lawfully remain in them as long as he lives, provided that it is established, even summarily and extrajudicially, that the absent spouse, as stated above, cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the same admonition. And we decree that these marriages, even if it should afterward become known that the prior unbelieving spouses, being justly impeded, could not declare their will and had even been converted to the faith at the time the second matrimony was contracted, nevertheless ought never to be rescinded, but will be valid and firm, and the offspring to be received therefrom legitimate."
It seems clearer than light that Gregory XIII here proceeded beyond the limits of the Pauline privilege, since he dissolves marriages contracted in unbelief even if perhaps both spouses had already been baptized at the time of the new matrimony.
According to the current practice of the Roman Curia, missionaries are granted the faculty "of dispensing with pagans and unbelievers having several wives, so that after conversion and baptism they can retain whichever [wife] among them they prefer, if she also becomes faithful, unless the first should will to be converted."318 This faculty cannot be explained from the Pauline privilege, because the departure of the unbelieving party, which St. Paul requires as prior before he permits a new matrimony to be contracted, is altogether lacking. The same seems to follow from several particular decisions of the Holy Office,319 and now it has been established generally by the Code of Canon Law, c. 1125, for all regions, if the same circumstances are present.
315 This opinion is held by Gasparri, De matrimonio, II, n. 1108; Billot, De eccl. sacr., II, thesis 44; Scherer, Kirchenr., II, n. 590; Fahrner, Gesch. der Ehescheidung im kan. Recht, 281; Vlaming, Prael. de iure matrim., 3rd ed., II, n. 604; Wernz-Vidal, Ius can., V, n. 636; and among the ancients, St. Antoninus, S. theol., P. 3, tit. 1, c. 6; Navarrus, Cons. et Resp., III, tit. 33, cons. 2; Thomas Sanchez, De matrim. sacr., l. 2, disp. 17; Laymann, Theol. mor., l. 5, tr. 10, part 2, c. 3; the Salamancans, Cursus Theol. mor., tr. 9, c. 4, p. 2, n. 34; Pirhing, in tit. 1, sect. 5; and others. Indeed Lehmkuhl, Theol. mor., II, n. 929, confidently says: "Every reasonable doubt concerning that power seems to be removed, so that it can be said with certainty: The Roman Pontiff, by reason of his supreme power, can for a grave reason dissolve the bond of a matrimony which was indeed consummated in unbelief, but was not consummated after one or both spouses were baptized." Nevertheless, there are some who reject this opinion, for example, Benedict XIV, De syn. dioec., l. 6, c. 4, n. 3, and l. 13, c. 21, n. 4; De Angelis, Prael., l. 4, tit. 19; Feije, De imped. et dispens. matrim., n. 486; Leitner, Lehrb. des kirchl. Eherechtes, 610. The reason which Benedict XIV (Prosper Lambertini) brings forward for his opinion is this: a consummated matrimony signifies the union of Christ with the Church, while a ratified matrimony indicates the union of Christ with a sanctified soul. But just as the union of Christ with the Church is indissoluble, while the union with the soul is dissoluble, so every consummated matrimony is indissoluble, while a ratified matrimony is dissoluble. It is easily understood that this argument is weak.
316 Constitution Romani Pontifices, August 2, 1571.
317 Constitution Populis ac nationibus, January 25, 1585.
318 Thus in Formula I, n. 11.
319 Cf. Gasparri, loc. cit., II, n. 1084 ff., and the case narrated by Benedict XIV (Quaest. can., Florentine cause, 1726), which was afterward decided by the Sacred Congregation against the opinion of Prosper Lambertini, then secretary of that Congregation. Cf. Lehmkuhl, Theol. mor., II, n. 931.