§ 5. On The Dissolution Of Betrothals

Many causes are assigned on account of which betrothals can be licitly dissolved. They are reduced to the following, which are the principal ones.

717. 1. Mutual consent.⁴⁵⁸

The reason is that betrothals are a voluntary contract, which unlike the matrimonial contract was not instituted directly by God and which a fortiori is not a sacrament. But every voluntary contract can be dissolved by the free consent of the contracting parties. This dissolution or consent, however, ought truly to be free, and therefore not extorted by fraud, force, or fear. - Even if the betrothals were confirmed by an oath, nevertheless they can be licitly dissolved by mutual consent. For that oath is considered something accessory to the betrothals. But the accessory dies with the principal.

⁴⁵⁸ C. 2, X 4, 1.

718. 2. A notable change supervening upon the betrothals.

It matters little whether this change has its origin after the betrothals or is then first discovered by one of the contracting parties. That change is considered notable which would have deterred one from entering into the betrothals if it had been known beforehand.⁴⁵⁹ A change of this kind can occur:

a) in goods of the body, for example, if either contracting party falls into a grave disease whose cure cannot be foreseen, or if that party becomes blind, mute, deaf, and so forth;⁴⁶⁰

b) in goods of fortune, for example, if either party has lost a great part of his or her fortune. It is disputed whether betrothals can also be licitly dissolved if great riches supervene to the other party, or if a much richer marriage is offered. All teach that dissolution for this reason is almost always unbecoming, but St. Alphonsus,⁴⁶¹ Lehmkuhl,⁴⁶² Tanquerey,⁴⁶³ and several others think that the obligation of the betrothals is not to be urged. The reason is twofold, namely: a) if the other contracting party had foreseen this change, he or she would never have contracted the betrothals; b) if that party were now compelled unwillingly to enter matrimony, a bad outcome would be feared.

c) in goods of the soul, for example, if the betrothed man becomes a heretic, if he is discovered to be a drunkard, a spendthrift, contaminated by evil morals, and so forth;

d) in external circumstances, for example, if one party has committed a crime which now becomes public, if that party is cast into prison, or if great enmities have arisen between the families of the betrothed man and woman. The disagreement of the parents can be reduced to this cause. The reverence owed to parents requires that children seek their counsel and consent before they embrace some state of life. If the petition was reasonable, the parents cannot licitly deny consent, because children are free in the choice of a state. When children have contracted betrothals without the knowledge of their parents, and the latter, now knowing the truth of the matter, show themselves gravely unwilling, for example, because the matrimony would tend to the disgrace of the family, all the circumstances are to be diligently considered. If, after all the circumstances have been weighed, the parents are reasonably unwilling, the betrothals can certainly be rescinded, because the rule already adduced above then holds: if the betrothed man or woman had foreseen such disagreement, he or she would not have contracted the betrothals. But if the parents are unreasonably unwilling, it is not lawful by one's own authority to rescind the betrothals when the consort resists; it is lawful, however, to seek a dispensation if grave inconveniences are feared from the subsequent matrimony.

⁴⁵⁹ Cf. Reiffenstuel, Ius can., tit. 1, l. 4, n. 255 ff.

⁴⁶⁰ C. 3, X 4, 8.

⁴⁶¹ Theol. mor., l. 6, n. 876.

⁴⁶² Theol. mor. II, n. 888.

⁴⁶³ De sacr., n. 841.

719. 3. Violation of betrothal fidelity.

a) Through fornication and other gravely immodest acts committed with another person. The reason is that by these acts either betrothed party is rendered notably less worthy and has gravely violated betrothal fidelity. But if the betrothed woman was oppressed by force, fault is indeed absent, but she has truly been rendered less worthy in body, and therefore several theologians do not oblige the betrothed man under grave sin to marry the deflowered woman, although they admonish him not to add affliction to the afflicted woman.⁴⁶⁴ But if each betrothed party has fornicated, the mutual obligation of the betrothals remains, at least speaking per se; for there is a mutual compensation of the offense. In practice, however, it is almost always expedient that such betrothals be dissolved, since a matrimony between unfaithful betrothed persons of this kind will scarcely be happy; indeed, quarrels and adulteries are likely to follow.

b) Through matrimony with another person. Although a matrimony which someone has contracted with another person notwithstanding prior legitimate betrothals is valid, nevertheless it is gravely illicit, as is self-evident. The betrothed man or woman who has been abandoned immediately acquires liberty according to the old adage: "Let faith be broken in return with one who breaks faith." Some writers indeed teach that through the subsequent valid matrimony the unfaithful party does not acquire liberty, and therefore, if that matrimony is dissolved by dispensation or the death of the consort, is bound again by the prior betrothals.⁴⁶⁵ And in truth it cannot be proved from either positive or natural law that valid betrothals are dissolved through a subsequent other matrimony illicitly contracted. Hence, at least theoretically, it is truer that through the subsequent matrimony the prior betrothals are indeed suspended, but revive when the obstructing matrimony has been dissolved. In practice, however, the obligation of reassuming the prior betrothals is not to be urged excessively, since several probably teach that betrothals through a subsequent matrimony are not only suspended but also extinguished.⁴⁶⁶ - With all writers consenting, the matter is otherwise if one party, having left the other, begins a courtship, attempts other betrothals, or attempts only a civil matrimony. For this infidelity does not dissolve the betrothals on the part of the one leaving, but only on the part of the one abandoned, who therefore can either freely withdraw or induce the unfaithful party to return.

c) Through an undue delay of matrimony or through the departure of one betrothed party to distant lands without sufficient reason. For in the betrothal contract there is understood the condition of celebrating matrimony at a time not so remote. But if an urgent cause for deferring the celebration of matrimony or migrating to distant regions is present, it is not lawful on this account to dissolve the betrothals. It is expedient, however, that then by mutual consent either the matrimony be deferred or the betrothals be dissolved.

⁴⁶⁴ St. Alphonsus, Theol. mor., l. 6, n. 862.

⁴⁶⁵ St. Alphonsus, loc. cit., n. 875; Aertnys, Theol. mor., l. 6, n. 437.

⁴⁶⁶ Thus Lehmkuhl, loc. cit., n. 853, and especially Ballerini in the notes to Gury II, n. 733.

720. 4. The choice of a more perfect state.

A state more perfect than matrimony is certainly the religious state, and indeed not only religious life in the strict sense, that is, with solemn vows, but also that of any religious congregation (provided, however, that it is legitimately approved). It is certain that betrothals are dissolved by solemn profession; for since by this profession even ratified matrimony itself is dissolved, as was proved above from the Council of Trent, a fortiori betrothals are dissolved. Theologians most commonly teach that betrothals are also dissolved by vows emitted in other legitimately approved congregations, because in the betrothal contract there is understood the tacit condition: "unless I choose a more perfect state."⁴⁶⁷ Now the state in these congregations is also more perfect than the matrimonial state. Likewise, the clerical state is more perfect. Therefore betrothals are also dissolved through the reception of orders, or even through entrance into a seminary with the sincere will of receiving clerical orders.

There are writers who teach that even the state of virginity confirmed by a private vow of perpetual chastity dissolves betrothals entered into. St. Thomas⁴⁶⁸ is cited for this opinion, saying: "On account of a simple vow, betrothals are to be broken"; but the mind of the Angelic Doctor is not so clearly known from this text, since certain commentators think (and indeed not without foundation) that he speaks only of a vow which preceded the betrothals. - For the opposite opinion, St. Alphonsus⁴⁶⁹ cites St. Antoninus, Laymann, Holzmann, Sanchez, Sporer, and others. But St. Alphonsus himself calls each opinion probable. Billuart⁴⁷⁰ says hesitantly: "Although I incline somewhat to the second [that is, that betrothals are licitly dissolved through a simple vow], I would not wish to define which is true." In practice several circumstances are to be attended to, namely, what is the primary intention of the one vowing, how great are the damages arising for the other party from the dissolution of the betrothals, whether these damages can be sufficiently compensated, and so forth.

It is to be noted that the party who is left, as soon as the other party enters a religious order or seminary, obtains liberty and therefore can enter into other betrothals; on the contrary, the party leaving remains bound until he or she has truly emitted profession or received orders. Hence more probably that party's obligation will revive if he or she has again left the religious order or seminary, at least if the more perfect state was embraced fraudulently for the purpose of freeing himself or herself from the obligation of betrothal. But if that party has been legitimately and without fraud dispensed from a more perfect state seriously undertaken, the obligation probably does not revive.⁴⁷¹ - Moreover, if from the dissolution of betrothals for the sake of embracing a more perfect state notable damage arises for the abandoned party, natural law itself requires that this damage be repaired.

⁴⁶⁷ Cf. Billuart, De matrim., diss. 2, a. 5; Tanquerey, De sacr., n. 840.

⁴⁶⁸ Suppl., q. 53, a. 1, ad 1.

⁴⁶⁹ Theol. mor., l. 6, n. 873.

⁴⁷⁰ Loc. cit., at the end.

⁴⁷¹ Tanquerey, loc. cit.; Cappello, De sacram., n. 118.

721. 5. Pontifical dispensation.

Authors commonly teach that the Supreme Pontiff, but not a bishop (unless he has special delegated faculties), can for a grave cause dissolve valid betrothals, even when either betrothed party is unwilling.⁴⁷² In fact, the Holy See has sometimes exercised this faculty.⁴⁷³ The reason is: a) because the Supreme Pontiff can dispense in ratified matrimony, as was said above, n. 681. Therefore a fortiori he can dispense in betrothals, which do not cause so firm a bond as ratified matrimony; b) because, although from betrothals there arises for each betrothed party a natural right that the other not withdraw from the promise made, nevertheless, on the other hand, the worst effects are accustomed to flow from coerced marriages, both for the contracting parties themselves and for the Church herself. But the Pope has the right of preventing harms to the Church, and therefore by force of the high dominion which he has over all Christians, he can limit the right of some individual person. For example, Peter contracted valid betrothals with Bertha, whom he abandoned. Under a promise of matrimony he renders Caia pregnant, whom he now wishes to marry and with whom he has already contracted a civil matrimony. Bertha opposes this matrimony with all her strength; but Peter with all his strength refuses to leave Caia and marry Bertha. If the Church in this case did not dispense in the prior betrothals and did not permit matrimony between Peter and Caia, concubinage would be present with great scandal of the people and the spiritual ruin of Peter and Caia, without Bertha's cause being changed thereby even in the least for the better. - Sometimes the Church, in dissolving valid betrothals, imposes an indemnification to be paid by the party withdrawing unjustly;⁴⁷⁴ but sometimes it leaves the judgment concerning the payment of this indemnification to the civil tribunal. For an action for the reparation of damages which arise from the dissolution of betrothals belongs to the mixed forum.⁴⁷⁵

⁴⁷² Cf. Aertnys, Theol. mor., l. 6, n. 442; Tanquerey, loc. cit., n. 844.

⁴⁷³ Cf. Sacred Congregation of the Council, July 25, 1896 (Analecta eccl. IV [1896], 294).

⁴⁷⁴ Caus. Ravennat., December 15, 1900 (Analecta eccl. IX [1901], 102).

⁴⁷⁵ Thus the Sacred Congregation of the Council, July 25, 1896; cf. Pontifical Commission, June 2-3, 1918, dub. IV.

722. Scholion. On the private or authoritative dissolution of betrothals. Since according to ecclesiastical law betrothals are no longer valid unless they are public, that is, confirmed by witnesses and set down in writing, hence the dissolution of betrothals will hereafter be more difficult and much rarer, since the betrothal contract can no longer be entered into so precipitously and rashly as formerly not rarely happened. But whether the dissolution of betrothals can be made by one's own authority, or whether an authentic dissolution is required, is not so certain. Nothing concerning this matter has thus far been determined by the Roman Curia. Knecht⁴⁷⁶ confidently affirms that a private dissolution suffices and calls this opinion certain. Whatever may be said of this opinion, an authentic dissolution seems to be required at least in the following cases, namely: a) if it has thus been established by the particular law of some diocese; b) if the existence and sufficiency of the cause of dissolution is seriously doubted, for it is not lawful by private authority to violate the certain right of another with a doubtfully sufficient motive; c) if scandal arises from the private dissolution of the betrothals. - Even in the case of a private dissolution of betrothals, the dissolution is to be announced to the witnesses before whom they were contracted.

⁴⁷⁶ Die neuen eherechtl. Dekrete, § 53. Cappello, De sacram., n. 136, speaks in almost the same manner.