§ II. On the Firmness of Marriage

I say 1°. Marriage is indissoluble, that is, once Marriage has been contracted, divorce as regards the bond cannot take place. It is established 1°. from the words of Christ, Matt. xix, 6: "And so now they are not two, but one flesh. What therefore God has joined together, let man not separate." It is established 2°. from the Council of Trent, sess. 24, can. 5. - It is established 3°. from prop. 67 of the Syllabus, which has itself thus: "By the law of nature the bond of Marriage is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority." - Wherefore the Third Plenary Council of Baltimore established: "that the penalty of excommunication ... reserved to the Ordinary is incurred by the very fact by those who, after they have obtained civil divorce, shall have dared to attempt Marriage." - Cf. Third Plenary Council of Baltimore, n. 124.

I say 2°. A valid marriage, ratified and consummated, can be dissolved by no human power and by no cause except death (Can. 1118).

Nevertheless a threefold case is to be excepted, as follows:

1°. A ratified and non-consummated Marriage of Christians can be dissolved, for a grave cause, through dispensation of the Pope, by power divinely granted to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc. Indeed, this faculty is to be extended also to Marriages consummated in infidelity, if the spouses after Baptism, by which properly the Marriage becomes ratified, have not consummated it again. - Cf. Perrone, de Matrimonio Christiano, vol. 3, sect. 2, cap. 6, art. 4; S. Alphonsus, nn. 956 and 959; Baller. note (b), p. 728.

2°. A ratified and non-consummated Marriage can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent has it, sess. 24, can. 6: "If anyone shall say that a ratified non-consummated Marriage is not dissolved through the solemn profession of Religion of one of the spouses, let him be anathema." The things which are said here under nn. 1° and 2° are clear also from Canon 1119:

A non-consummated marriage between baptized persons, or between a baptized party and a non-baptized party, is dissolved both by the law itself through solemn religious profession, and through dispensation granted by the Apostolic See for a just cause, with each party requesting or either party, even if the other is unwilling (Can. 1119).¹

3°. § 1. A legitimate marriage between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege (Can. 1120), when either of the spouses is converted through Baptism to the Christian faith, and the other refuses to cohabit peacefully with him or does not cohabit except with injury to the Creator and contempt of the Christian religion, or applies an effort to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, I Cor. vii, 12, where it is said: "If any brother has an unbelieving wife and she consents to dwell with him, let him not put her away ...; but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace." Innocent III explains the same more fully in cap. Quanto 7, de divortiis. - Cf. Third Plenary Council of Baltimore, n. 128; S. Alphonsus, n. 956; Lehmkuhl, nn. 721 and following; Acta S. Sedis, vol. 22, p. 745 and following; Amer. Eccl. Rev., vol. 4, p. 1 and following, and vol. 16, p. 328 and following.

¹ Cf. Addenda, p. 1130, n. 90.

Question 1. Once a marriage has validly been contracted by dispensation between an unbeliever and a Catholic, can this latter use the Pauline privilege if the unbelieving party afterward departs or is unwilling to cohabit without injury to the Creator?

Resp. § 2. This privilege does not obtain in a marriage between a baptized party and a non-baptized party entered with dispensation from the impediment of disparity of cult (Can. 1120).

Question 2. To whom, and under what conditions, is it licit to use the privilege?

Resp. It is clear 1°. that this privilege belongs only to the true and legitimate husband with respect to a true and legitimate wife, and vice versa; it is clear 2°. that the converted spouse cannot enjoy this privilege except after Baptism has been received and after an interpellation has been duly made to the other spouse concerning embracing the evangelical truth and promising peaceful cohabitation; it is clear 3°. that there can be no place for this privilege if both spouses are converted to the faith at the same time.

§ 1. Before the converted and baptized spouse validly contracts a new marriage, with the prescription of Can. 1125 preserved, he must interpellate the non-baptized party:

1°. Whether that party also wishes to be converted and receive Baptism;

2°. Whether at least that party wishes to cohabit peacefully with him without contumely of the Creator.

§ 2. These interpellations must always be made, unless the Apostolic See has declared otherwise (Can. 1121).

Question 3. How must these interpellations be made?

Resp. § 1. Interpellations are to be made regularly, at least in summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by this Ordinary, delays for deliberating are also to be granted to the unbelieving spouse, if indeed that spouse has sought them, with this one nevertheless admonished that, once the delays have passed uselessly, the response will be presumed negative.

§ 2. Interpellations even made privately by the converted party himself are valid; indeed they are also licit if the form prescribed above cannot be observed. Nevertheless, in this case, for the external forum, the fact of them must be established by at least two witnesses or by another legitimate mode of proof (Can. 1122).

Question 4. When at last does the baptized party have the right of contracting new nuptials?

Resp. If the interpellations were omitted by declaration of the Apostolic See, or if the unbeliever has responded negatively to the same expressly or tacitly, the baptized party has the right of contracting new nuptials with a Catholic person, unless that party after Baptism has given to the non-baptized party a just cause for departing (Can. 1123).¹

¹ Cf. Addenda, p. 1131, n. 91.

Question 5. Is the Pauline privilege valid also in the case in which, after the conversion of one, the unbelieving party consents to cohabit peacefully, and then, with counsel changed, tempts the faithful one or departs?

Resp. The faithful spouse, although after receiving Baptism he again has lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person; and therefore he can use this right if the unbelieving spouse, with will changed, later departs without just cause, or now no longer cohabits peacefully without contumely of the Creator (Can. 1124).

Question 6. What must be said of a marriage entered after dispensation from interpellation when it becomes known that the unbelieving spouse could not declare his will and had been converted to the faith?

Resp. It is valid. This has been declared very many times. S. Off., 4 Feb. 1891; Gregory XIII, 25 Jan. 1585.

Those things which regard marriage in the constitutions of Paul III, Altitudo, 1 June 1537; of S. Pius V, Romani Pontificis, 2 Aug. 1571; of Gregory XIII, Populis, 25 Jan. 1585, and which were written for particular places, are extended also to other regions in the same circumstances (Can. 1125).¹

¹ Cf. Addenda, p. 1131, n. 92.

Question 7. What is the force of that dispensation in that case, if the second marriage is valid?

Resp. Its force is to dissolve the bond of a ratified and non-consummated marriage of the faithful. For the co-parties of the first wedlock, at the time of the contract of the second marriage, were both baptized. Therefore, at the moment of Baptism received by each, that first wedlock became a ratified marriage; and since after the Baptism of each it had not been consummated, it was had as ratified and non-consummated. But the Supreme Pontiff can dissolve a marriage ratified and non-consummated. Therefore.

Question 8. Immediately after the Baptism of one and the departure of the other party, is the Marriage dissolved?

Resp. Negatively. According to the same divine privilege, the spouse converted to the faith, at the very point of conversion, is not understood to be loosed from the bond of the marriage contracted with an unbeliever still surviving; but then, if the unbelieving spouse refuses, he acquires the right of passing to other nuptials, nevertheless with a faithful spouse. S. Off., 11 July 1866. - Cp. Si quis, 28, q. 2; and Cp. Gaudemus, 8, De Divortiis: Crimes are loosed in Baptism, not marriages.

Question 9. Is the prior marriage dissolved by the very fact that the converted person has betaken himself to second nuptials?

Resp. The bond of the prior wedlock, contracted in infidelity, is dissolved only then when the faithful party has in fact validly entered new nuptials (Can. 1126).

Question 10. Can an unbelieving spouse validly enter a new Marriage, if after his departure the party converted to the faith has emitted religious profession, or received sacred Orders, or made a simple vow of chastity?

Resp. He can indeed in the case of religious profession, if the Marriage was not consummated after the reception of Baptism, because then it is dissolved by force of the other privilege declared by the Council of Trent, sess. 24, can. 6. - Not likewise in the case of reception of sacred Orders, or emission of a simple vow of chastity, because then the first matrimonial bond remains entire. But if the unbelieving spouse is converted, cohabitation is certainly not permitted to him if the co-party has received sacred Orders, and according to some also in the case of a simple vow of chastity, because the state assumed is incompossible with conjugal life. - Cf. Baller. note (c), p. 734.

Question 11. Is the Pauline privilege valid also in the case in which conversion is made through reception of Baptism in some non-Catholic sect?

Resp. Many think that then also it is valid, if nevertheless the other conditions are not lacking, because then too the substance of conversion is verified, namely reception of valid Baptism, as is supposed. - Cf. Baller. note (a), p. 736, at the end.

Question 12. How manyfold is the object concerning which interpellation is to be made?

Resp. As is established from what has been said, that object is twofold, unless an apostolic dispensation is given. Cf. S. Off., 20 June 1886; S. C. de Prop. F., 17 Jan. 1836; S. Off., 8 June 1836.

Question 13. What kind of departure suffices for the Pauline Privilege to enter?

Resp. The physical or moral departure of the unbelieving party itself suffices; nor is it required that the physical departure have been malicious.

"Since the favor of the faith fights on the side of the converted spouse, he can use it from whatever cause, provided it is just, namely if he has not given to the other spouse a just and reasonable motive for departing, yet in such a way that only then is the yoke of the matrimonial bond with the unbeliever understood to be loosed, when the converted spouse (the other refusing after interpellation to be converted) passes to other vows with a faithful person."

And therefore it has place when the unbeliever departs from hatred of the faith or on account of discords or on account of another cause diverse from the faith (S. Off., 5 Aug. 1759), even when the unbeliever refuses to live with the faithful one without contumely of the Creator, or attempts to draw the faithful one to sin or to infidelity, or refuses to desist from concubinage. It enters also if the unbelieving party wishes to be converted, but in no way consents to live with the faithful one, provided the unbelieving party remains in infidelity; it enters if the unbelieving party cannot cohabit with the faithful one, because, for example, by force she has been taken away from the man so that there is no hope of recovering her, or if she wishes to be converted and indeed would wish to cohabit with him, but can neither practice the religion nor cohabit. It enters, I say, provided this party remains in infidelity. S. Off., 8 July 1891. Besides, dispensation from interpellation has not once only been given on account of the insanity of the unbelieving party herself, who could not be interpellated. Therefore physical departure, malicious or not malicious, and moral departure suffice for the privilege to enter.

Question 14. Was this interpellation also before the New Code necessary for the validity of the marriage of the faithful one who wished to use the privilege?

Resp. Affirmatively; there are so many cases in which marriages have been declared null which had been entered without interpellation, that the negative opinion must be held simply as not safe.

Such responses are: A neophyte had contracted wedlock with a Christian woman, saying nothing about the wedlock contracted in infidelity. What must be thought of the marriage of the said man with the Christian girl, contracted without interpellation and dispensation? Resp. From the things brought forward, the first marriage subsists. S. Off., 20 June 1858; S. Off., 17 Jan. 1900; 5 Aug. 1795. In a similar manner, in the Korean persecution it sometimes happened "that in the use of the privilege of faith the unbelieving spouse, converted and baptized, omitted interpellation toward the spouse remaining in infidelity, although in many cases this interpellation was perhaps necessary or at least of doubtful obligation." (Thus in the supplicatory petition.) It was answered: "But as regards marriages contracted without the interpellation of the unbelieving spouse having preceded in the accustomed manner, or a dispensation from it having been obtained, let the Apostolic Vicar, from the faculty which is granted to him, dispense from the interpellation to be made, and altogether procure that consent be renewed; but in those cases in which he judges that this renewal cannot be made for now, let him be silent, if the putative spouses are in good faith."

S. C. de Prop. F., 5 March 1816. Whether, for the effect of dissolving marriage according to the privilege in favor of the faith granted by Christ the Lord and promulgated by the Apostle, the interpellation of the party persevering in infidelity is of divine law, and therefore so necessary that, if it is neglected, no place at all is had for dissolving the marriage; or whether it pertains only to judicial form, and is not required except so that the dissolution be made licitly, especially when otherwise it is established by morally certain indications that the other spouse wishes neither to embrace the faith nor to cohabit without contumely of the Creator? R. to 1. "There is no place for the dissolution of a marriage contracted in infidelity, unless interpellation has first been made, or unless, from legitimate causes, an Apostolic dispensation concerning the interpellation has been obtained."

Question 15. What are the causes on account of which the Holy See dispenses from interpellation?

Resp. A twofold case, ordinary and extraordinary, must be considered in the faculty of dispensing from interpellation. The ordinary case occurs then, namely, when all diligences have first been employed, even through public newspapers, for finding the place where the unbelieving spouse dwells, and these have fallen into vain result, and it is established at least summarily and extrajudicially that the absent spouse cannot legitimately be admonished or, having been admonished, has not signified his will within the time fixed beforehand. The other occurs when the unbelieving spouse can indeed be approached, but he cannot be interpellated concerning the co-party having become Christian without evident danger of grave damage to be brought upon that co-party or upon Christians; S. Off., 29 Nov. 1882; or if it is seriously doubted whether the neophyte truly took any of his women as wife. 8 June 1836.

Question 16. What must be said if the faithful party gave the cause of departure?

Resp. If the faithful party after conversion should furnish to the unbelieving party a just and reasonable cause of departing, say, through adultery, the privilege of faith would not remain entire. It is otherwise if the cause occurred before baptism, because this sacrament blots out the crime. Instr. S. C. de Prop. F., 30 Jan. 1807; S. O., 19 April 1899. - Cf. D'Annibale, vol. 3, n. 475.

Question 17. When is the interpellation to be made?

Resp. This interpellation is to be made after baptism, unless the Supreme Pontiff himself has otherwise granted the power of interpellating the unbelieving party before baptism. Indeed, the S. Off., 15 June 1850, affirms that it is of divine law, resolving a case in which an unbelieving woman responded that she wished to be converted and cohabit but was detained by a second husband or by a creditor who did not permit her to leave. Question: whether in this case the converted man can pass to other nuptials? "Affirmatively, namely, that the converted man concerning whom it is a question, if he has not legitimately been dispensed by the Apostolic See, is bound by divine precept to make in the present case an interpellation once to the other spouse; but he can do so several times from mere charity. But once this divinely enjoined condition has been fulfilled by the converted man, if the pagan wife has not returned to him within some just and reasonable space of time, the aforesaid converted man can licitly and validly enter other nuptials with a Christian woman, however, provided the man is not the cause of the impediment by which the woman is detained." Thus the S. Off.

1°. Practically in every case either interpellation is to be made, or pontifical dispensation from interpellation is to be obtained.

2°. But it is to be noted that second nuptials to be entered after interpellation or dispensation must be entered only with a faithful person, without permission of the Apostolic See.

3°. Neither divorce nor a second civil marriage exempts anyone from the obligation of making interpellation.

4°. But insofar as neither interpellation nor dispensation from the same has preceded, the first marriage will obstruct the second; but the Ordinary ought to suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what must be done. S. C. de Prop. F., Instruction on ecclesiastical judgments concerning matrimonial causes, given in the year 1883.

In a doubtful matter the privilege of faith enjoys the favor of law (Can. 1127).¹

¹ Cf. Addenda, p. 1134, n. 93.

I say. Spouses must preserve the communion of conjugal life, unless a just cause excuses them (Can. 1128), on account of which divorce from bed or habitation can take place, while nevertheless the conjugal bond remains, so that neither party can enter another Marriage before the death of the other. The first is drawn from the definition itself of Marriage. The other is established by the Council of Trent, sess. 24, can. 8: "If anyone shall say that the Church errs when, on account of many causes, she decrees that separation between spouses, as regards bed or as regards habitation, can take place for a determinate or indeterminate time, let him be anathema." But the causes rendering a divorce of this kind honorable are: mutual consent, grave danger of soul or body, and adultery of either party; which causes you will understand thus for practice.

1°. Mutual consent: namely, each spouse together can renounce his proper right as regards the bed, whether for a time or in perpetuity, provided danger of incontinence is absent. Likewise they can be separated also as regards habitation, whether for a time on account of affairs, or in perpetuity on account of desire for a more perfect life, for example, for entering Religion or receiving sacred Orders. - Cf. Baller. note (b), p. 741.

2°. § 1. On account of the adultery of a spouse, the other spouse, with the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he has consented to the crime, or has given cause for it, or has expressly or tacitly condoned it, or has also himself committed the same crime.

§ 2. Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely lived with the other spouse with marital affection; but it is presumed unless within six months he has expelled or deserted the adulterous spouse, or has made a legitimate accusation (Can. 1129).

The innocent spouse, whether he has legitimately departed by sentence of the judge or by his own authority, is never bound by any obligation to admit again the adulterous spouse to the companionship of life; but he can admit or recall the same, unless from his consent that one has assumed a state contrary to marriage (Can. 1130).

It is clear from the words of Christ, Matt. v, 32: "He who puts away his wife, except for the cause of fornication, makes her commit adultery, etc." But if this is licit for the man, by the same reason it must also be licit for the wife.

It is helpful to notice that, according to the common opinion of doctors, here under the name of adultery there is understood any division of flesh, even that which is had through sodomy and bestiality. - Cf. S. Alphonsus, n. 962.

3°. § 1. If the other spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he brings about grave danger, whether of soul or of body, for the other; if by cruelties he renders common life too difficult, these and other things of this kind are so many legitimate causes of departing for the other spouse, by authority of the Ordinary of the place, and even by his own authority, if they are certainly established and there is danger in delay.

§ 2. In all these cases, when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a determinate or indeterminate time, the innocent spouse is not bound to this unless by decree of the Ordinary or when the time has passed (Can. 1131).

Question. Is the man, once the adultery of his wife is known, bound to put her away?

Resp. It is certain that he is not bound by reason of the adultery, because divorce was conceded in favor of the innocent one, not for his punishment. Nevertheless the man can sometimes be bound to put away the adulterous wife by reason of fraternal correction or of avoiding scandal; but that case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal to be feared from separation can excuse. From another side, the wife cast out would be exposed to greater danger, at least for the most part. - Cf. S. Alphonsus, n. 963.

Here it must be carefully noted that the confessor in this matter needs great prudence. Wherefore he should rarely permit divorce from bed made by private authority, and still more rarely if the crime is occult, even if it is certain. Let him beware besides lest he believe too easily the complaints of wives against husbands; and let him take pains to restrain them and turn them away from divorce insofar as it can be done. Cf. S. Alphonsus, n. 969.

It must also be noted that it is by no means licit for spouses to seek civil separation from bed and board without having consulted ecclesiastical authority. For thus speak the Fathers of the Third Plenary Council of Baltimore, n. 126: "We command all those who are joined in marriage not to approach civil tribunals to obtain separation from bed and board, without ecclesiastical authority having been consulted. But if anyone should attempt it, let him know that he incurs grave guilt and is to be punished according to the judgment of the Bishop."

Once separation has been instituted, the children are to be educated with the innocent spouse, and if one of the spouses is non-Catholic, with the Catholic spouse, unless in each case the Ordinary, for the good of the children themselves, with their Catholic education always preserved, has decreed otherwise (Can. 1132).