Section — Prümmer, Manuale Theologiae Moralis
§ 4. Disparity of Worship
806. Notion. Disparity of worship, as it is taken here, is an impediment instituted by ecclesiastical law which dirimes matrimony between a non-baptized party and a party baptized in the Catholic Church or converted to it from heresy or schism.74
Among older authors, for example, St. Raymond of Peñafort, compiler of the Decretals of Gregory IX, disparity of worship also includes mixed religion between a Catholic party and a baptized non-Catholic party.75 Hence it is customary to distinguish imperfect disparity of worship, or mixed religion, and perfect disparity of worship, or diversity of religion between a baptized and a non-baptized person. Since above, n. 784, we already spoke of the impedient impediment of mixed religion, it remains that we now treat perfect disparity of worship, which indeed is twofold: antecedent and consequent. The former precedes the matrimony to be contracted; the latter supervenes upon a matrimony already contracted. We shall treat antecedent disparity alone, adding a few things below in a scholion concerning consequent disparity.
74 Code of Canon Law, can. 1070, § 1.
75 Summa, bk. 4, tit. 10.
807. Origin of this impediment. The principal end of matrimony itself, namely, the true and perfect good of the offspring and of the spouses, requires that matrimony not be entered between a baptized and a non-baptized party. For although, absolutely speaking, the offspring begotten of parents disparate in worship can both be rightly baptized and be well educated in the Catholic religion, just as the Catholic party can also do many things for his own spiritual salvation and that of the other party, nevertheless experience proves that the altogether contrary very often occurs, namely, that the spiritual salvation of the offspring and of the Catholic spouse perishes. For this reason, already in the Mosaic law God prohibited the Israelites from entering matrimony with gentile peoples.76 In the first centuries of the Christian era, several particular Councils77 gravely prohibited marriages between a member of the faithful and an unbeliever, and especially between a member of the faithful and a Jew; but it is not so clear whether at that time these marriages were considered invalid or merely illicit. Certainly marriages between a member of the faithful and an unbeliever were sometimes validly contracted, for example, between St. Cecilia and Valerian, between St. Monica and Patricius, and between Clotilda and Clovis; but again it is not clear whether they were contracted with the due dispensation or not. Gratian (about the year 1150) enumerates the impediment of disparity of worship in the same manner as the impediments of consanguinity and affinity, which were certainly held as diriment.78 From the time of Gratian, disparity of worship seems to have been held by all as a diriment impediment of matrimony. Therefore St. Thomas presupposes as something known to all: "Disparity of worship preceding matrimony impedes it from being contracted and dirimes it when contracted."79 Nevertheless, it is unknown which ecumenical Council or which Supreme Pontiff established this diriment impediment for the whole Church; hence Benedict XIV says: "Marriages because of disparity of worship are invalid, not indeed by the law of the sacred canons, but by the general custom of the Church, which has flourished for many centuries and obtains the force of law."80 The same Pontiff thinks that this customary law already existed in the sixth century.81 But now the Code of Canon Law, can. 1070, § 1, establishes: "A matrimony contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null." Therefore, from May 19, 1918, this impediment no longer exists between a pagan and a person baptized in a non-Catholic Church and not yet converted, which indeed is very much to be attended to in practice. The terminology "a person baptized in the Catholic Church" seems to be taken in the same sense in which can. 1099, § 1, employs it. Cf. above, n. 754.
76 Cf. Deut. 7:3.
77 For example, the Council of Elvira, 306; the Council of Arles, 314; the Council of Hippo, 393; the Second Council of Orléans, 533.
78 "Those who have been joined contrary to a decree of God or of the Church are commanded to be separated from one another, such as members of the faithful with unbelievers, blood relatives with blood relatives, or relations by affinity with relations by affinity. All these, if they have been joined to one another, are to be separated" (c. 14, C. 28, q. 1).
80 Constitution Singulari nobis, February 9, 1749.
81 Opera inedita, 431.
808. In a case of doubtful baptism, serious inquiry must be made so that the truth may be discovered. But while the doubt remains, one must proceed as follows: 1. If there is question of a matrimony to be contracted, then the doubtful baptism of the Catholic party is to be repeated. But if the baptism of the other party is doubtful and that party does not wish to be converted to the faith, then a dispensation from the impediment of mixed religion is to be sought and, for greater security, also from the impediment of disparity of worship. 2. If there is question of a matrimony already contracted, before the Code of Canon Law (May 19, 1918) the general rule was: In relation to matrimony, a doubtful baptism is held to be valid. Thus the Holy Office declared several times. - But when the doubtful baptism is afterward known with certainty to be null and invalid, nevertheless the matrimony cannot be dissolved by private authority because of the impediment of disparity of worship, but recourse must be made to the Ordinary, who, "with the intervention of the defender of the matrimonial bond, without need of a second sentence,"82 can declare the nullity of the aforesaid matrimony.
Some grave authors83 thought otherwise concerning this matter, namely, they taught that a matrimony contracted between persons putatively baptized always remained valid, even if it was afterward discovered that either of the contracting parties was not baptized (or was invalidly baptized). Thus, for example, Santi-Leitner84 says: "Whenever matrimony was contracted with certainty or presumption of baptism, the matrimony was valid. And because it was valid, afterward, when the invalidity of the baptism was discovered, it is not rendered invalid, because a matrimony once valid is always valid." In other words: Whenever matrimony is contracted between persons certainly or doubtfully baptized, there arises a presumption of law and of law that the matrimony is valid, against which presumption no exception is admitted because of the impediment of disparity of worship. Deservedly it is said in the "De Breuil-Denison case": "This doctrine does not seem easily reconcilable with certain authentic declarations of the Sacred Congregation of the Holy Office. For in the Instruction of the Holy Office of June 5, 1889, it is said: 'When there is question of the impediment of disparity of worship and it is evidently established that one party is baptized and the other party was not, ... the matrimony can be declared null by the Ordinary.'"85 But how could the matrimony be declared null if it had been valid from the beginning? Besides, this opinion seems to be manifestly opposed to canon 1070, § 2.
After the Code, another rule was established if there is question of a contracted matrimony while the doubt remains: "If at the time the matrimony was contracted a party was commonly held as baptized, or his baptism was doubtful, one must stand, according to the norm of can. 1014, for the validity of the matrimony until it is certainly proved that one party is baptized and the other is not baptized."86 Therefore in doubt matrimony must always be favored. The only exception seems to be the privilege of faith, which in a doubtful matter enjoys the favor of law87 (Code of Canon Law, can. 1127). Therefore, for example, if a non-baptized person contracted matrimony with a Catholic person doubtfully baptized, the doubtful baptism can be considered as null, and therefore such a matrimony can be dissolved by the Pauline privilege or by a dispensation of the Holy See.87a But whether the baptism is to be repeated conditionally for the greater security of eternal salvation and for the licit reception of the other sacraments is another question, which must be resolved after all the circumstances have been considered. If, after an investigation has been made, the nullity of the baptism is established, either the matter must be referred to the Ordinary, who can declare the matrimony null, as was said above, or the putative spouses must renew their matrimonial consent in legitimate form after baptism has been validly conferred. If the party whose baptism is established to be null indeed refuses to receive baptism, but wishes to persevere in the matrimony and to furnish the prescribed guarantees, a dispensation from the impediment of disparity of worship is to be sought.
82 Thus the Holy Office, June 5, 1889; and the Code of Canon Law, can. 1990.
83 Gasparri, De matrim., n. 598; Leitner, Lehrb. des kirchl. Eherechtes, 273.
84 Prael. iur. can. IV, 71.
86 Code of Canon Law, can. 1070, § 2.
87 Ibid., can. 1127.
87a Cf. Holy Office, November 5, 1924.
809. Cessation of the impediment of disparity of worship. This impediment can cease in three ways:
By the valid reception of baptism and the legitimate renewal of consent. This is evident of itself.
By dispensation, which the Supreme Pontiff is wont to concede through the Holy Office,88 or, in mission territories, through Vicars Apostolic or even simple missionaries. In Catholic regions this dispensation is rarely conceded, especially if there is question of entering matrimony with a Jew.89 But in grave danger of death or another urgent case, Ordinaries, parish priests, or even all priests can dispense from this impediment, as will be said below, n. 857. A dispensation from the impediment of disparity of worship cannot be given unless those things are observed which were indicated above for celebrating mixed marriages, and especially unless the guarantees prescribed for mixed marriages are first furnished, namely, the education of all the offspring in the Catholic faith and freedom of worship for the Catholic spouse. But if these guarantees were not sought or were denied, the dispensation conceded is invalid, and the Ordinary can pronounce the nullity of a matrimony thus contracted without its being necessary in individual cases to recur to the Holy See for a definitive sentence. Thus the Holy Office, June 21, 1912.90 The dispensation is invalid if each contracting party has not furnished these guarantees. These things are indeed especially to be attended to if a parish priest or priest dispenses from this impediment in grave danger of death.
Likewise to be noted is the Instruction of the Holy Office of September 16, 1824, which seems still to remain in force today after the promulgation of the Code: "In dispensing with the Catholic party from disparity of worship so that the party may contract with an unbeliever, the Church is understood to dispense also from those impediments from which the unbelieving party is exempt, so that, because of the indivisibility of the contract, the latter's exemption remains communicated also to the other party."91 The unbelieving party is exempt from all impediments of merely ecclesiastical law because he is not subject to the jurisdiction of the Church. Impediments of this kind are age, affinity, crime, etc. Hence, when, for example, a dispensation from the impediment of disparity of worship has been conceded, the affinity which the unbelieving party incurs has also implicitly been dispensed, as is evident from the following case resolved in the same Instruction of the Holy Office: "Paul, a Christian widower, took Balbina, an unbeliever, as his wife.... Demetrius, Paul's son from a prior wife, declares that he had relations with Balbina. It is asked whether an impediment of affinity in the first degree results from such copulation with an unbelieving woman. - If Paul took Balbina after a prior apostolic dispensation, even if the copulation of Demetrius with the same Balbina had preceded, the matrimony is now to be held as valid." Today affinity no longer arises from illicit copulation.
- In a case of impossibility. Hence, if in some region there are so few Christians that they cannot enter matrimony among themselves and cannot, because of the distance of places or for other reasons, seek a dispensation, the impediment ceases, since in this case the natural right to matrimony seems to prevail over the ecclesiastical law establishing the impediment of disparity of worship. Several authors, for example, Gasparri92 and Leitner,93 deservedly teach thus; their opinion is favored by the Holy Office, June 4, 1851, which teaches that the faithful who in circumstances of this kind entered matrimony with non-baptized persons without first obtaining a dispensation are not to be disturbed. Nevertheless, even in these cases the guarantees recounted above are required, since they are required not by ecclesiastical law alone, but by divine law.
88 Constitution Sapienti consilio, June 29, 1908, I, 5; Code of Canon Law, can. 247, § 3.
89 Cf. the dispensation denied to the Jew Popper, in Leitner, Lehrb. d. kirchl. Eherechtes, 275.
91 Collect. de Prop. Fide, n. 784.
92 De matrim., n. 623.
93 Lehrb. des kirchl. Eherechtes, 273.
810. Scholion 1. Supervening disparity of worship is present when, after a legitimate matrimony of pagans has been contracted, one of the spouses is validly baptized. How one must then act is evident from the things said above, n. 671, concerning the "Pauline privilege."
Scholion 2. As regards the ceremonies to be employed in the celebration of a matrimony between a baptized and a non-baptized party, nearly the same things have force which are prescribed for the celebration of a mixed matrimony, unless special things are required in the indult of dispensation.