Chapter VII. The Properties of Marriage

Unity and indissolubility are the properties or peculiar qualities of marriage which we have to discuss in this chapter. Its unity consists in its being a contract in which the parties are necessarily one man and one woman. If several men have one and the same wife at the same time, we have polyandry, which is contrary to the law of nature, for it prevents the natural increase of the human race, makes domestic life almost impossible, and on account of the uncertainty of paternity renders the proper education of the children who are born very difficult. If one man has several wives at the same time, there is polygamy, which is certainly less in keeping with man’s nature than monogamy. Polygamy degrades woman, destroys that equality which in regard to marriage rights should exist between the sexes, and makes it difficult for peace and harmony to reign in the family. It is certainly against the positive divine law, promulgated anew by Christ our Lord, and obligatory on all men after the preaching of the Gospel. The Council of Trent anathematized him who should say that it is lawful for Christians to have several wives and that this is not forbidden by divine law.¹

¹ Sess. xxiv, c. 2.

Marriage is also indissoluble, at least by divine law, so that no human power can dissolve a marriage once validly contracted; ‘“‘ What God hath joined together let no man put asunder.”¹ This text has the strictest application to the consummated marriage of baptized Christians which can only be dissolved by divine authority. The Pope can for a grave reason dispense in the ratified but not consummated marriage of a Christian; ratified marriage is also dissolved by religious profession of solemn vows; and there is the case of the Pauline privilege.

(a) 'The Pope not unfrequently uses the power given to him by our Lord to dissolve the merely ratified marriage of Catholics for some grave reason. A probable suspicion of impotence in one of the parties, and a serious quarrel which leaves no hope of reconciliation, have been held sufficient causes for granting a dispensation from a ratified marriage. As the Pope has no jurisdiction over non-baptized persons, he cannot exercise his authority to dissolve their marriages. But if a non-baptized married couple were converted to the Faith, the Pope would have power to dissolve their marriage if it had not been consummated after baptism, for even if it had been consummated before baptism it would only rank as a ratified marriage. By authority of the Holy See a baptized pagan who had several wives is sometimes permitted to keep any one of them who may be converted with him, if the first is unwilling to become a Christian. Similarly, a married pagan converted in circumstances which render it impossible to interpellate the other party is sometimes allowed by papal dispensation to contract another marriage with a Catholic.

(b) Solemn profession in a religious order with solemn vows annuls a previously existing ratified marriage by ecclesiastical law. Mere entrance into religion and even profession of simple vows in orders that have solemn vows is not sufficient (Can. 1119). By ecclesiastical law a period of two months was granted after marriage, during which there was no obligation to render the debt, in order that either of the parties might use his privilege of entering religion. But this seems contrary to Can. 1111.

(c) The consummated marriage of two pagans may be dissolved by the Pauline privilege if one of them is converted to the Faith, and the other will neither be converted nor live at peace without trying to draw the convert to sin. It is in this sense that the Church interprets the words of St Paul: ‘“ 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.’’?

The marriage is not dissolved by the Baptism of one of the parties, but if the conditions mentioned above are verified, the convert after Baptism may contract a second marriage with a Christian, and by this marriage the former is dissolved. In order that it may be known whether the other party is willing to be converted or at least to live at peace with the convert, he must be interpellated by the bishop or by his authority. Both interpellations are required, and more probably they are necessary for the validity of the second marriage, unless a dispensation from them is obtained from the Holy See. Thus in a case of insanity of the other party, a dispensation from the interpellations was granted, and in countries where Christians were forbidden to live with Jews, only one interpellation was put, ‘‘ Whether the other party was willing to be converted to the Faith,” and if a negative answer was given, the convert was free to marry again (Can. 1120 ff.). j

¹ Matt. xix 6.

Married people ought to live together as man and wife unless there is some good reason to the contrary.

If one of the parties commits adultery, the other has the right to separate from him altogether as to bed and board, unless he consented to the crime, or was the cause of it, or expressly or tacitly condoned it, or he himself has committed the same crime.

When an innocent spouse has separated from the adulterer by his own authority or that of a judge, he is under no obligation to admit him again to marital cohabitation; but he may admit him or recall him, unless with his consent he has adopted a life incompatible with marriage.

If a spouse has joined a non-Catholic sect, if he is educating a child as a non-Catholic, if he is leading a criminal and shameful life, if he is the cause of grave danger to the soul or body of the other, if by his cruelty he makes cohabitation too difficult for the other, these and similar causes are so many lawful reasons of separation for the other party, by the authority of the local Ordinary and also by his own authority if the causes are certain and there is danger in delay.

In all these cases when the cause of separation ceases cohabitation should be restored; but if separation was decreed by the Ordinary for a certain or uncertain time the innocent party is not obliged to cohabit unless the time fixed has elapsed or by the decree of the Ordinary (Can. 1128-1131).

Although questions concerning divorce and the separation of married people belong of right to the ecclesiastical court, in most modern States the civil authority claims and exercises jurisdiction in these matters. May Catholics take their marriage cases to the civil courts, and may Catholic judges and Catholic lawyers lend their aid in deciding them¹ No answer can be given to these questions which will apply to all countries and circumstances. In some countries Catholics can still have their rights safeguarded by recurring to the ecclesiastical courts, and there is no reason why they should carry their matrimonial suits to the civil tribunals, In England and in the United States the Church tacitly or explicitly permits Catholics to apply to the civil courts at least for a judicial separation. Before doing so they should put their case before the ecclesiastical authorities, and this is prescribed under liability to penalties by the Third Plenary Council of Baltimore.

With regard to divorce cases, Catholics in England and in the United States may have recourse to the civil courts in order to obtain a declaration of nullity when a marriage has already been declared invalid or annulled by the ecclesiastical authorities. They may not go to the civil courts in order to obtain dissolution of a valid marriage with the intention of marrying again. This is obvious from what has been said above. There is a difficulty as to whether a Catholic may petition for a divorce in the civil courts, not with the intention of considering the marriage dissolved and marrying again, but in order to obtain the civil advantages annexed to divorce, such as a change of marriage settlements or release from the obligation of supporting his wife’s child by another man. The question is disputed among theologians, but as the law in English-speaking countries does not express hostility to religion and does not affect to touch the conscience but only the external relations of the citizens, the better opinion is that Catholics for good cause may petition even for divorce in the civil courts, with the intention of using only the civil advantages that follow from it. A consequence of this is that Catholic lawyers and judges may for grave reasons undertake these cases in the civil courts. For greater safety and to show their submission to the Church they should ask the leave of the Bishop.

¹ N. 126; S.O., December 19, 1860.