Article III. Mixed Religion

I. Notion of the impediment. The impediment of mixed religion is understood as the impediment which exists between two baptized persons, of whom one is Catholic, while the other is enrolled in a heretical or schismatic sect (canon 1060). Marriages contracted between such persons are called mixed. It is said:

1. Between two baptized persons. If one was baptized in the Catholic Church and the other party is not baptized, there is the impediment of disparity of cult; if one party was baptized, but not in the Catholic Church, while the other is not baptized, no canonical impediment is had.

2. Of whom one party is Catholic, whether he or she was baptized in relation to the Catholic Church or was converted to it. Moreover, the person is still judged Catholic who has cast off the Catholic faith even externally, but has not been enrolled in a non-Catholic sect.

3. While the other is enrolled in a heretical or schismatic sect. It is not enough that the person be enrolled in a sect, for example, an atheistic one.

Corollary. One who has cast off the Catholic faith even externally, but has not been enrolled in a non-Catholic sect, is not held by the canonical impediment of mixed religion if he wishes to enter marriage with a Catholic; he is held by it if he wishes to contract with a party enrolled in a heretical or schismatic sect.¹

¹ Ter Haar, op. cit., pp. 1-2.

II. Existence of the impediment. Mixed marriages are most severely prohibited by ecclesiastical law, and very often they are forbidden also by divine law itself (St. Alphonsus VI, 56, 1044; Homo Apostolicus, tract 14, n. 6).

1. They are most severely prohibited by ecclesiastical law; this is clear from innumerable ecclesiastical documents,¹ and is expressly declared by canon 1060.

2. Very often they are forbidden also by divine law itself, namely because: 1° they involve communion in sacred things with heretics; 2° everywhere they create danger to the religion of the Catholic party;² 3° everywhere they are an impediment to the good education of the children.³ There is added that they favor indifferentism and obstruct the desired union of the spouses.⁴

¹ Cf. Apostolic Letter of Clement XIII, November 16, 1763 (Collectanea, n. 1421); Apostolic Letter of Pius VIII, March 25, 1830 (Collectanea, n. 1426); Apostolic Letter of Gregory XVI, April 30, 1841 (Collectanea, n. 1428); Constitution of Leo XIII Arcanum (§ 26), February 10, 1880; Encyclical of Pius XI Casti connubii, December 31, 1930 (A.A.S. 1930, p. 570), and others cited by Ter Haar, op. cit.

² Cited encyclical.

³ Cited encyclical.

⁴ Cited encyclical.

III. Cessation of the impediment. 1. The divine prohibition ceases when the proximate danger ceases which threatens, from the mixed marriage, the religion of the Catholic party and the education of the offspring, and when a cause occurs which renders honorable: 1° communion in sacred things with a heretic, which mixed marriage involves, insofar, namely, as both together confect and receive the sacrament;¹ 2° the petition of a sacrament from an unworthy person; and 3° the administration of it to an unworthy person.² The proximate danger of which we have spoken can be absent or can cease when, for example, the character of those about to marry is considered, or the particular circumstances which especially favor the religious condition of the Catholic party and the Catholic education of the offspring, or a cause for seeking such a marriage which effects that the danger is not approached rashly.

2. The ecclesiastical prohibition ceases through dispensation. But the power of dispensing of itself belongs to the Supreme Pontiff alone, not to Bishops, unless it has been specially granted to them (canon 1040).

¹ Many do not admit communion in sacred things. But Gregory XVI in his letter to the Bishops of Hungary, April 30, 1841, wrote: "It is sufficiently and more than sufficiently established what the Church has perpetually thought concerning marriages between Catholics and non-Catholics. Namely, she has always held nuptials of this kind to be entirely illicit and wholly pernicious, both on account of shameful communion in divine things, and..." etc. The reason is that the heretical party, even though he or she has furnished the cautions, is to be presumed to contract with an intention that is itself heretical.

² On the ministration of this sacrament to an unworthy person, see n. 769 sq.

IV. The requisites without which dispensation is not granted are set forth in canon 1061: the Church does not dispense from the impediment of mixed religion unless: 1° just and grave causes urge; 2° the non-Catholic spouse has furnished a caution concerning removing from the Catholic spouse the danger of perversion, and each spouse concerning all the offspring being baptized and educated only as Catholic; 3° moral certainty is had concerning the fulfillment of the cautions; 4° the cautions are regularly required in writing. Therefore three things are required absolutely, the fourth regularly. Therefore:

1. Just and grave causes must urge. Thus the cited canon and other ecclesiastical documents.² The reason is that, in order that the faithful be permitted to expose themselves to grave dangers of faith and morals, even under opportune cautions, some grave inconvenience otherwise not avoidable must be imminent.³

The cause must be proportioned to this very grave law, with attention also to the common good, which from an entered mixed marriage will easily suffer detriment from the fact that occasion is thus furnished for other mixed marriages. Indeed Benedict XIV teaches that dispensation is not to be granted except "some grave and usually public cause intervening";⁴ though this, as regards a public cause, has nowadays been mitigated. Practically one can speak thus:

a) "Causes which regard private advantages more, for example mature age, narrowness of place, insufficiency of dowry, the good of peace, betrothals contracted in good faith on account of which it would be feared that the bride would remain unmarried and defamed - according to the mind of the Holy See, these do not easily suffice of themselves";⁵ nor, one can add, does a great affection toward the other party, or a higher social condition to be obtained through mixed marriage. Nevertheless, "from our practice account is taken of those same causes, provided other circumstances of things concur, by which weight is added to them."⁶

b) Among sufficient causes these are usually numbered: 1° if a non-Catholic prince, with the cautions used, wishes to marry a Catholic woman, and great advantages for the Catholic religion would be hoped for from this; 2° if there is probable hope that some non-Catholic family, inclining to the true faith, may through the mixed marriage return to the Church; 3° if the mixed marriage is the only remedy so that children already begotten from another mixed marriage may be educated in the Catholic religion; 4° if great scandals arising from the defamation of a girl already made pregnant by a heretic or in some other way cannot be avoided except through a mixed marriage; 5° if in some region Catholics are few, and at the same time safe and free to profess the faith, while the heterodox are very many; 6° if the heretical party is prepared to promise in writing or before witnesses, with the promise confirmed by oath, that after the nuptials have been entered he or she will embrace the Catholic faith; likewise if the heretical party is already accustomed to go to a teacher, male or female, who teaches him or her the Catholic faith, and seems to do this with a sincere desire of knowing the truth; 7° if the mixed marriage will put an end to the base concubinage of those wishing to marry; 8° if through the mixed marriage it can be obtained that offspring, whether already born or to be born from the fornication of the parties, be baptized and educated as Catholic; 9° if there is a prudent fear that the Catholic party may go over to the heretics, or contract a merely civil marriage or a marriage before a non-Catholic minister.⁷ Nevertheless, in the last case moral certainty concerning the fulfillment of the cautions will not easily be had.

c) That one of the cited causes is present does not prevent the Ordinary from being able, or even being bound, to deny the dispensation if, from its concession, the common good will suffer detriment.⁸ Nevertheless, the practice of never dispensing, whatever cause may be present, seems to be opposed to the mind of the Church.

Corollary I. A dispensation given by an Ordinary without grave cause is invalid according to canon 84, § 1: "From an ecclesiastical law one is not to dispense without a just and reasonable cause, with consideration had of the gravity of the law from which dispensation is made; otherwise a dispensation given by an inferior is illicit and invalid."

Corollary II. One who without grave cause wishes to enter a mixed marriage, even though he says that he does not wish to contract otherwise than with dispensation, at least objectively sins gravely. For "the Church does not dispense from the impediment of mixed religion unless just and grave causes urge" (canon 1061, § 1, 1°). Hence the one of whom we speak wills a thing prohibited by the Church under grave obligation. There is added that in the case the grave danger which everywhere threatens the Catholic party and the offspring from a mixed marriage will scarcely cease, and therefore the divine prohibition also persists. The same must be said of one who wishes to enter a mixed marriage while the only grave cause on which the Church relies is the fear of a marriage being contracted without dispensation. The reason is that he illegitimately morally compels the Church to dispense in a matter so grave. Add that, especially in this hypothesis, proximate danger of spiritual harm both for the Catholic party and for the offspring will scarcely be lacking.

2. The prescribed cautions must be furnished. But the cautions to be furnished are: 1° that the non-Catholic party emit a promise of removing from the Catholic spouse the danger of perversion; 2° that each spouse promise that all the offspring will be baptized and educated only as Catholic. But the cautions are regularly to be required in writing. It is said:

a) The prescribed cautions must be furnished, and indeed in such a way that they are never omitted,⁹ not even in the article of death (canon 1043).¹⁰

b) Each spouse must promise that all the offspring will be baptized and educated only as Catholic; this you should understand both of offspring to be born and of offspring previously born from these same persons. If the offspring already born was begotten either from a preceding marriage or from illegitimate intercourse with a third person, let action be taken according to the rescript of the Sacred Congregation of Propaganda Fide¹¹ to the Bishop of Haarlem: "Although care is to be taken according to one's powers that the children, if there are any born from a preceding marriage of the non-Catholic party, be instructed in the Catholic religion, nevertheless this is not to be absolutely required for granting the dispensation, unless the same children were born from another mixed marriage and the parent did not observe the prior conditions."

c) The cautions are regularly to be required in writing, as canon 1061, § 2 has it. Always "the presentation of the cautions should be notorious, or at least such that it can be notorious, in order to remove every scandal."¹²

The Holy Office,¹³ to the question: "Whether the assertion of the Catholic party, given under oath, that the non-Catholic party had pledged faith to him or her concerning the conditions to be fulfilled, suffices" - responded: "Of itself and generally, in the negative, and according to the mind. The mind is: that if in some extraordinary case such circumstances concur that the Bishop can obtain moral certainty for himself both concerning the sincerity of cautions of this kind for the present and concerning their fulfillment for the future, and wholly special reasons are present which prevent the cautions from being furnished in the customary way, it is left to his conscience and prudence. Otherwise, notwithstanding the royal decree, the opportune cautions are to be furnished in writing, just as has been done up to now; nor is dispensation to be given unless the Bishop is morally certain that they will be fulfilled." Besides this, observe:

alpha) In those regions in which the cautions have force also in the civil forum, provided they are furnished in civil form, dispensation is not to be granted unless the cautions have been furnished in that form; otherwise a dispensation granted by those who dispense by indult is invalid.¹⁴

beta) The cautions are to be required before dispensation is sought.

gamma) A dispensation granted by an Ordinary without cautions is invalid. For canon 1061 declares: "The Church does not dispense unless..." etc.; once this is posited, it cannot be admitted that she has granted to an inferior the faculty of dispensing without cautions. Then the Holy Office¹⁵ declares invalid a dispensation in disparity of cult granted without cautions; this you will rightly apply to a dispensation in mixed religion, all the more because canon 1071, as regards the requisites for dispensation in disparity of cult, refers to canon 1061, which speaks of the requisites for dispensing in mixed religion. There is added the decree of the Holy Office¹⁶ just cited.

3. Moral certainty must be had concerning the fulfillment of the cautions. Thus the cited canon and other ecclesiastical documents.¹⁷ But the required moral certainty is understood as broad moral certainty, or the state of one opining, so that doubt strictly so called does not suffice. The Church requires the certainty set forth because she does not remove her prohibition unless she judges that the divine prohibition has ceased. But she cannot so judge unless she is morally certain concerning the fulfillment of the cautions. Besides this, note:

a) The required certainty is obtained by considering, along with the promise, either the special character of those promising, or the circumstances which favor the fulfillment of the cautions, or both. But since the question concerns both a promise which, as one regarding almost the whole of life, will be fulfilled with great difficulty, and since, as sad experience teaches, a very great part of those promising do not stand by their promises, the promise taken nakedly, that is, abstraction being made from the character of those about to marry and from the circumstances, whether of the persons in question or of places, etc., cannot found moral certainty.

b) It can be disputed whether a dispensation granted by an Ordinary who is not morally certain concerning the fulfillment of the cautions is valid. For on the one hand, it is admitted with difficulty that the validity of a dispensation depends upon the state of mind of the one dispensing. On the other hand, to the grant of the faculty of dispensing to Ordinaries is added the clause: "provided that first, regularly, according to the prescription of the Code of Canon Law, canon 1061, § 2, provision has been wholly made for the conditions required by the Church, and the Right Reverend Ordinary himself is morally certain that they will be fulfilled." But the word "provided that" denotes that validity is regarded. Moreover, the fact that the dispensation would be invalid would not prevent the marriage from being contracted validly.

c) A pastor who himself is not morally certain concerning the fulfillment of the cautions cannot simply recommend the dispensation; but if he proceeds further, he is bound to propose his doubt to the Ordinary.

¹ Ter Haar, De matrimoniis mixtis eorumque remediis.

² Pius VII in letters to the Archbishop of Mainz, October 8, 1803; Pius VIII in letters to the Bishops of Rhenania and Westphalia, March 25, 1830; Sacred Congregation of Propaganda Fide, March 11, 1868 (Collectanea, n. 1324).

³ Cf. Instruction of the Secretariat of State, March 27, 1830 (Collectanea, n. 811, note).

⁴ De Synodo Dioecesana, book 9, chapter 3, n. 5.

⁵ Bangen, Praelectiones iuris matrimonialis I, 217.

⁶ Bangen, Praelectiones iuris matrimonialis I, loc. cit.

⁷ Vlaming, Praelectiones iuris matrimonialis, I, n. 217.

⁸ Cf. Instruction of the Secretariat of State, March 27, 1830 (Collectanea, n. 811, note).

⁹ Secretariat of State, November 15, 1858 (Collectanea, n. 1169).

¹⁰ Holy Office, March 18, 1891 (Collectanea, n. 1750; cf. June 21, 1912).

¹¹ March 20, 1899.

¹² Holy Office, July 29, 1880.

¹³ December 10, 1902 (Collectanea, n. 2155).

¹⁴ Holy Office, January 20, 1932 (A.A.S. 1932, p. 25). Regions of this kind are Bavaria and Hungary (Wernz-Vidal, op. cit., n. 170, note 33).

¹⁵ June 21, 1912.

¹⁶ January 20, 1932 (A.A.S. 1932, p. 25).

¹⁷ Holy Office, February 17, 1875; June 6, 1879 (Collectanea, n. 1433); July 29, 1880; December 10, 1902.

V. Obligations of the parties. 1. The Catholic spouse is held by the obligation of prudently taking care of the conversion of the non-Catholic spouse (canon 1062), for instance by prayer and by the example of a truly religious life.

2. Even if dispensation has been obtained from the Church concerning the impediment of mixed religion, the spouses cannot, either before or after the marriage entered before the Church, also approach, whether personally or through a proxy, a non-Catholic minister as one assigned to sacred things, in order to give or renew matrimonial consent (canon 1063, § 1). Otherwise they commit not only the grave sin of sacrilege, namely on account of communion in sacred things with heretics, but the Catholic party also falls into excommunication reserved to the Ordinary.¹ Nevertheless, it is not disapproved that, when civil law commands it, the spouses present themselves also before a non-Catholic minister functioning only in the office of a civil official, and this only for completing the civil act, for the sake of civil effects (canon 1063, § 3).

Note. One who has been absolved in the internal forum from the excommunication of which we have spoken can use himself as such also in acts of the external forum; but unless the grant of absolution is proved, or at least legitimately presumed, in the external forum, the censure can be urged by the Superiors of the external forum, whom the guilty person must obey, until absolution has been had in the same forum (canon 2251). Therefore, if the delict has remained occult, absolution in the forum of conscience is certainly safe.

¹ It is not beside the point to add here the whole of canon 2319: "Catholics are subject to excommunication latae sententiae reserved to the Ordinary: 1° those who enter marriage before a non-Catholic minister against the prescription of canon 1063; 2° those who are united in marriage with an explicit or implicit pact that all or some offspring be educated outside the Catholic Church; 3° those who knowingly presume to offer their children to be baptized by non-Catholic ministers; 4° parents, or those holding the place of parents, who knowingly hand over their children to be educated or instructed in a non-Catholic religion. Those of whom § 1, nn. 2-4 speaks are besides suspected of heresy."

VI. Obligation of pastors of souls to forestall mixed marriages.

1. "Ordinaries and other pastors of souls should deter the faithful from mixed nuptials as much as they can" (canon 1064, 1°). But the means of deterring the faithful are:

a) Opportune instructions, both public and private: public, for example, instructions established on a determined Sunday or Sundays at each fixed Mass; admonitions added in the explanation of the Catechism, likewise in meetings of sodalities; sermons on mixed marriages in Missions and other spiritual exercises; private, for example, in the sacrament of Penance, in the visitation of the parish; finally, if they know that someone is thinking of contracting nuptials of this kind, by warning him and diligently exhorting him not to carry it out.¹

b) To turn Catholics away from too much familiarity with heretics; "otherwise it will more easily happen that heterodox friends, visiting Catholic friends at home, first touch even their sisters with some relationship, then pursue them with love, and finally desire to marry them. A similar thing must be said concerning heterodox female friends of daughters of families."²

c) The erection of purely Catholic social associations.

d) A series of instructions on the Catholic religion given to the non-Catholic bridegroom; this practice was begun in the United States of North America and is continued with great success.³

2. "If they are unable to prevent them," that is, mixed nuptials, "they should take care with every effort that they are not contracted against the laws of God and the Church" (canon 1064, 2°). Indeed, if the circumstances of the diocese or parish are such that, by denying dispensation or concurrence for obtaining it, mixed marriages can for the most part be prevented, this means also should be used, all the more because in such a case, with attention to the common good - which must be attended to, as natural law dictates - a sufficiently just and grave cause for dispensing is lacking.

Thus also Cardinals Gasparri and van Rossum;³ namely, according to the aforesaid men, the sense of canon 1064, 2° is this: if pastors of souls are unable to prevent mixed nuptials either by particular means or by a severe practice, let them take care with every effort that they are not contracted against the laws of God and the Church. "At least it must be said," Ter Haar adds,⁴ "that a stricter practice from epikeia and according to the mind of the legislator does not stand in the way of this canon. For the Church wills that superiors use the faculty of dispensing only prudently and for the common good."

¹ Provincial Council of Utrecht, p. 127.

² Vlaming, Praelectiones iuris matrimonialis I, 230.

³ Cf. the booklet Efficax antidotum ad matrimonia mixta praecavenda, by M. V. Kelly and J. B. Geniesse; but especially Ter Haar, op. cit., nn. 91-117. The Vicar General of the Bishop of 's-Hertogenbosch asked His Eminence Cardinal van Rossum: "Whether the practice hitherto observed in our diocese should be abandoned, namely of never seeking dispensation in the impediment of mixed religion except in quite extraordinary cases?" To these things His Eminence responded: "That practice hitherto observed, by which mixed marriages are so strongly and with such happy success restrained, can also in the future be observed in Holland with a safe conscience. To abandon it would be the same as promoting those unhappy marriages. This is foreign to the sense of the said canon. In order to procure greater certainty for Your Reverence in this very grave point, I myself approached the President of the Commission appointed to interpret the Code, with whom I communicated your letter on this matter. His Eminence Cardinal Gasparri fully agreed with me, using this brief argument: Does that practice prevent mixed marriages? (I answered: Without doubt.) If it is so, the matter fits perfectly with the prescription of canon 1064, 2°: If they are unable to prevent them" (Ned. Kath. Stemmen, 1919, p. 13).

⁴ Op. cit., n. 139.

VII. Obligation of the confessor. A confessor who knows that a penitent is seeking a mixed marriage should, everywhere and with every effort, dissuade that marriage. If the penitent refuses to comply with the counsel, one must proceed thus:

1. If some cause exists on the part of the penitent, and it is such as is acknowledged by the local Ordinary, the penitent, the things to be posited having been posited, is to be absolved and referred to the pastor. The same must be said if the confessor does not know whether the cause alleged by the penitent is acknowledged by the Ordinary or not.

2. If the cause which exists on the part of the penitent is not acknowledged by the local Ordinary, a distinction must be made:

a) If, once dispensation is denied, there is no fear of a civil marriage, the penitent is to be warned; and if he does not desist from the marriage, he is not to be absolved.

b) If, once dispensation is denied, there is fear of a civil marriage, one must speak thus:

alpha) If that cause is acknowledged by the Ordinary, the penitent is indeed of himself to be warned concerning the grave sin which he is about to commit (p. 605); but if no hope of fruit is hoped for, he should be left in good faith, the things to be posited having been posited, absolved, and referred to the pastor.

beta) If that cause is not acknowledged by the Ordinary, on account of the common good, the penitent is to be warned; and if he is willing to renounce the mixed marriage, the things to be posited having been posited, he is to be absolved. If he refuses, absolution cannot be granted.

We have repeatedly spoken of a cause acknowledged by the local Ordinary; for it belongs to him to judge what norm of acting, as regards causes, should seem to be followed in his diocese.

We have likewise repeatedly said that the penitent, the things to be posited having been posited, is of itself to be absolved and referred to the pastor. By these words we intend that absolution is not to be denied; for we freely admit that often absolution is better deferred until the penitent has arranged the matter with the pastor.

VIII. Assistance to be given at a mixed marriage. 1. If the pastor knows certainly that the parties have already contracted before a heretical minister as such, or as one assigned to sacred things, or that they are about to contract in that way, he should not assist at their marriage except for most grave causes, scandal having been removed, and the Ordinary having first been consulted (canon 1063, § 2). But if those about to marry neither manifest a depraved intention, nor are otherwise certainly foreseen to be about to contract before a heretical minister as such, nor question the pastor, he, if there is no hope of fruit, can be silent.¹

2. Announcements must be omitted unless the local Ordinary, in his prudence and with scandal removed, has judged it opportune to permit them, provided Apostolic dispensation has preceded and mention of the religion of the non-Catholic party is omitted (canon 1026; p. 605).

¹ Instruction of the Holy Office, February 17, 1864 (Collectanea, n. 1247); December 12, 1888 (Collectanea, n. 1696).

IX. Obligations to be fulfilled after a mixed marriage has been contracted. "When mixed nuptials have been celebrated, whether in their own territory or in another, they should diligently watch that the spouses faithfully fulfill the promises made" (canon 1064, 3°). But if the Catholic party should perhaps object that he or she is prevented by a pact from taking care that all the offspring be baptized and educated as Catholic, let that person be taught that a pact of this kind is invalid. Besides this, these things are to be observed:

1. If the mixed marriage was contracted illicitly but validly - which could especially have had place before the decree Ne temere concerning the form of marriage:

a) The Catholic party is not to be admitted to the sacraments unless first he or she is sorry for the sin committed, and has been absolved from penalties perhaps contracted; there will be discussion of penalties later.

The Holy Office says thus: "As regards valid marriages, they can be admitted to receiving the sacraments without prior renewal of consent, but are to be kept from receiving them until they have given true signs of repentance, and have promised that they will take care with all their strength both of the conversion of the heretical party and of the education in the Catholic religion of all offspring born and perhaps to be born, and finally until they have obtained absolution from incurred censures together with salutary penances, in the case in which they contracted before a heretical minister."¹

b) The pastor should take care that at least the Catholic party furnish the cautions in the external forum, and that these be sent to the Bishop.²

c) The Catholic father should use the paternal power which civil law grants to him over minor sons and daughters.³

d) The Catholic mother should likewise use paternal power if, with the circumstances considered, for instance because the father has been deprived of the said power, that power belongs to her.³

e) The Catholic spouse should use: 1° the right which perhaps a special agreement entered into gives to him or her; 2° the right, perhaps granted by law³ or agreement, of appointing a Catholic person who, after the spouse's death, will carry out the guardianship of the children.

2. If the marriage was contracted invalidly - for example, because the juridic form was not observed - then, the things to be posited having been posited, it must be convalidated; but there will be discussion of convalidation later.

Corollary. The Catholic party who does not do what is necessary and morally possible so that all the offspring be educated as Catholic is unworthy of absolution, both because he or she gravely fails in duty and because he or she gives grave scandal.

¹ August 23, 1877 (Collectanea, n. 1478).

² Holy Office, March 12, 1881.

³ Thus, for example, Dutch law.