Article I: On the Dissolution of the Bond

— What marriages can be dissolved. 1. By no human power, and by no cause, can a valid marriage which at the same time has existed ratified and consummated be dissolved (c. 1118).

2. But a non-consummated marriage between baptized persons themselves, or between a baptized and a non-baptized party, is dissolved: a) by the law itself, through solemn religious profession; b) by dispensation conceded by the Apostolic See for a just cause to at least one party requesting, even if the other is unwilling.

It is controversial whether the dissolution of marriage through solemn religious profession should be attributed to a dispensation of the Holy See or to divine-natural law, on account of a perfect change of state. Wherefore the Code abstains from the word dispensation or concession, since the law of the Code could be a mere declaration of divine law.

But a dispensation of the Apostolic See, since it is made in a matter of itself withdrawn from human power, and therefore requires a power divinely conceded, cannot be validly conceded without a just cause. But a just cause is morally present if common life has become morally impossible. The Code, however, expressly recalls that a dispensation can be conceded even if the other party is unwilling, in order to demonstrate that the dissolution is founded in no consent of the parties. For it must firmly be held that a validly contracted marriage is intrinsically indissoluble.

3. "A legitimate marriage between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege."

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

We shall speak at once of the Pauline privilege. Therefore use of the privilege is denied, indeed it is declared not to be had, when with dispensation from the impediment of disparity of cult a baptized party entered marriage with a non-baptized party.

But what if the marriage was contracted without dispensation? The solution is easy if the baptized party was in the Catholic Church: for then the marriage is attempted in vain without dispensation. But the party who has been neither baptized nor converted Catholic is not held by the diriment impediment of disparity of cult. Therefore the solution seems theoretically to have to be sought from the nature of the contract itself: is there or is there not a sacrament in the baptized party? This question lacks a certain solution. Practically, the Holy See positively permits nothing in this case. But if a baptized non-Catholic party has repudiated a non-baptized party in adjuncts which would give place to the Pauline privilege, the new marriage will be of doubtful validity, concerning which one must pronounce according to those things which will be proposed in the moral section.

— Concerning the Pauline privilege according to itself. Scholion. The Pauline privilege, or Case of the Apostle, is a privilege, promulgated by the Apostle Paul from a divinely conceded power, by force of which the spouse who in infidelity contracted nuptials with another infidel party, indeed consummated them, can, after receiving baptism, if the party who remains infidel departs, validly and licitly join new nuptials. When these new nuptials have been made, the prior marriage is dissolved.

The place of the Apostle is found in 1 Cor. 7:12 ff.: "For to the rest I say, not the Lord. If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not put away the husband: for the unbelieving husband is sanctified through the faithful woman, and the woman is sanctified through the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart: for a brother or sister is not subject to servitude in matters of this kind; but God has called us in peace."

But the infidel is judged to depart not only if he refuses cohabitation, but also if he does not wish to cohabit peacefully and without contumely of the Creator, or wishes only that cohabitation which is intolerable for the faithful party, whether on account of annoyances to be borne by him or her, or on account of snares of sin which are cast for him or her, or on account of offensive things which he or she would have to behold, e.g., polygamy, idolatry.

Whether the privilege is immediately divine, of which St. Paul was only the herald, or, on the contrary, St. Paul himself, using a divinely conceded power which now the Supreme Pontiff preserves, defined that the departure of the infidel furnishes sufficient cause for neglecting the marriage which was contracted with an infidel: the matter is disputed. Up to this point the style of the Curia, e.g., of the Holy Office, has been accommodated to an immediately divine origin: the privilege is described as "conceded by Christ the Lord, and promulgated by the Apostle Paul." And although the Church is not accustomed to concede anything to heretics before conversion, nevertheless it does not deny the use of the privilege to them.

Thus most writers. Yet those seem to speak better who refer this privilege to that general ministerial power conceded to the apostles and now to the Supreme Pontiff, by force of which, for a just cause, a marriage which is not both ratified and consummated can be dissolved by Apostolic authority. To this explanation the words of the Apostle are better fitted: "to the rest I say, not the Lord." Nor do the various dispensations which have been conceded seem capable of explanation unless over marriages consummated in infidelity the Supreme Pontiff can do the same things as over ratified non-consummated marriages. But once this faculty of the Supreme Pontiff has been admitted, why would we gratuitously affirm a divine intervention, not necessary, and which fits little with the general economy of the New Testament, which is this, that besides necessary precepts concerning faith and sacraments, God has established no other positive laws?

— Regular use of the privilege: 1. requires that the converted and baptized spouse interpellate the non-baptized party: a) whether he or she also wishes to be converted and receive baptism; b) whether at least he or she wishes to cohabit peacefully without contumely of the Creator;

2. the interpellations are regularly to be made by the authority of the Ordinary of the converted spouse, in a form at least summary and extrajudicial. This Ordinary must also grant delays for deliberating to the infidel spouse requesting them, with that one nevertheless warned that, the delays having passed uselessly, the response will be presumed negative.

Private interpellations made by the converted party himself or herself are nevertheless also valid. Indeed they are licit, if the juridic form cannot be observed. In the external forum, however, it must be established by two witnesses or by another legitimate mode of proof concerning the interpellations made and concerning their outcome.

3. Interpellations must always be made, unless the Church has dispensed. Otherwise, a marriage made without interpellations is not valid, if the departure of the infidel after the baptism of the other is not plainly established.

But if the departure has been entirely established, interpellations do not seem to be necessary for validity, although some speak more strictly (cf. e.g., De Smet, n. 351, 352). The words of c. 1121, §1, favor the strict opinion: "Before a converted and baptized spouse validly contracts a new marriage, he must ... interpellate the non-baptized party"; and c. 1122, §2, where speech is made of valid interpellations and licit ones. Yet the texts are explained by the fact that interpellations are necessary for the very validity if the departure is not established. Therefore the legislator could say: in order that marriage be valid, certainly and in every hypothesis, interpellations must have preceded. He himself in c. 1121, §2, seems deliberately to have omitted the words "for validity," while he declares that interpellations must always be made.

You should observe that they must regularly be made after baptism, so that the departure after baptism can be established.

4. The use of marriage after baptism leaves intact the right of the faithful party of using the privilege: whether he or she did not interpellate the infidel, or whether that one later departs or does not stand by the promises (c. 1124). It is extinguished only by the baptism of the other party, since then there is no longer an infidel to be interpellated.

If before the faithful party has contracted new nuptials the infidel has sincerely and efficaciously repented of his or her departure, so that he or she is no longer departing, or if he or she has been baptized, use of the privilege without dispensation of the Holy See would be invalid.

Nor is there place for the privilege if after baptism (by which prior faults are blotted out) the faithful party himself or herself has given to the non-baptized party a just cause of departing, e.g., by adultery, by selling the wife, etc. (c. 1123).

5. From the moment at which the faithful party has legitimately celebrated new nuptials, the prior nuptials are perfectly dissolved, so that the infidel himself or herself recovers liberty (c. 1126).

— Force of dispensations by the Holy See. For just causes, especially of the common good, the Holy See can dispense so that an interpellation is made only concerning the will of conversion; or so that interpellations are entirely omitted. Once that dispensation is obtained, the faithful party has the same right of making new nuptials which negative responses of the interpellated party would give him or her (c. 1123).

Concerning particular dispensations these two general norms have force:

1. whenever interpellation is morally possible, and not plainly useless, the Supreme Pontiff does not concede a full dispensation, but merely indulges that it be enough to interpellate the infidel concerning conversion;

2. when dispensation has been made concerning interpellation, unless the marriage is celebrated within a year, either the interpellation must be made or a new dispensation must be obtained. That year runs from the moment at which the grace has come into the region, i.e., into the hands of the Ordinary, if it was conceded in gracious form, or from the moment at which the Ordinary conceded or executed it.

This last point is founded on c. 38. What we say concerning a grace simply conceded at Rome seems to be contrary to the same canon establishing this: "Rescripts by which a grace is conceded without an interposed executor have effect from the moment at which the letters are given"; but it has often been answered that faculties given to missionaries or Ordinaries of missions run not from the day on which they were given, but from the day on which they came into their hands. Therefore by employing the argument of analogy, so that the parties may in reality enjoy a whole year, we have judged that the beginning of the year can be established from the moment at which notice of the made dispensation can be had.

— Various ratios of dispensations. The Holy See can dispense immediately by general indult, or by particular rescript; or it can confer faculties of dispensing. Dispensations themselves of themselves are of strict interpretation, while faculties of dispensing admit a benign interpretation.

I. General dispositions. - Moreover, from the Constitutions of Paul III, Altitudo, June 1, 1537, and St. Pius V, Romani Pontificis, August 2, 1571, which c. 1125 extends to all regions in the same adjuncts, it is permitted: a) that converted polygamists who do not remember which wife they first received may accept any of their wives with whom they contract a true marriage. If they know which one they first received, the others having been dismissed, they are to retain her; nor does the third degree of consanguinity stand in the way of these marriages; b) that converted polygamists can remain with the wife who was baptized or is baptized with them.

You should observe that sometimes certain women are assumed without solemnity, and then another is more solemnly accepted, who will hold the first place among the wives. This one must then be judged the first wife, if it is sufficiently established that the prior women were not held as true spouses. The first wife is she who can be called first among equals (cf. response of the Holy Office, August 17, 1898, Coll. P. F., n. 2017).

When it is not established which wife was first, it also seems intact to the man that (if the case should ever occur) he remain unmarried.

— II. Faculties of dispensing. - 1. From c. 1125, to Ordinaries of missions among gentiles, and to pastors and missionaries approved there for hearing confessions, there is given a general faculty of dispensing from every interpellation of the infidel spouse, "provided it is established, even summarily and extrajudicially, that the absent spouse cannot legitimately be warned, or that the one warned has not signified his or her will within the time fixed in that same warning," and consequently of permitting to the baptized faithful other nuptials, which can never be declared invalid on account of omitted interpellations or of an excellent disposition of the infidel detected afterward (after the nuptials), indeed of his or her baptism.

This dispensation is called for ordinary cases.

2. In the third greater formula of the Sacred Congregation of Propaganda Fide, these faculties are conceded as delegable:

a) "of dispensing with gentiles and infidels having several wives, so that after conversion and baptism they can retain whichever of them they prefer, if she also becomes faithful, unless the first wishes to be converted" (n. 24);

b) of dispensing concerning interpellation, for all ordinary cases (n. 25; cf. here under n. 1);

c) "of dispensing concerning interpellation of the spouse left in infidelity, if indeed it has certainly been established, at least summarily and extrajudicially, that the interpellation cannot be made without evident danger of grave harm to be inflicted either upon the spouse already converted to the faith, or upon Christians" (n. 26);

d) "of permitting that, when a grave cause is present, the interpellation of the infidel spouse can be made before the baptism of the party who is converted to the faith"; or even of dispensing from that interpellation before that baptism, "provided that, in this case, from a process at least summary and extrajudicial it is established that the interpellation cannot be made or will be useless" (n. 27. Cf. our Commentary concerning these faculties).

— "In a doubtful matter the privilege of faith enjoys the favor of law" (c. 1127).

The same Holy Office, in the response of April 19, 1899 (Ann. eccl. 1899, p. 236), expressed this in these other words: "In doubts, let the judgment always be in favor of the faith." Wherefore: a) although of itself one must respond in favor of the validity of a doubtful marriage, nevertheless a doubtful marriage contracted in infidelity will be dissolved in favor of the liberty of the converted party (cf. De Smet, I, 343, p. 300, note 3). And an infidel who has no certain marriage with any of his wives can marry any Catholic woman (response of the Holy Office, August 17, 1898, Coll. P. F., 2017); b) if it is doubtful whether or not the conditions of the Case of the Apostle are present, again one must respond in favor of the liberty of the faithful party (De Smet, I, 354).