Article IV. Disparity of Cult

I. Notion. By disparity of cult is understood the diversity of religion which exists between a party baptized in the Catholic Church, or converted to it from heresy or schism, and a non-baptized party. It does not matter whether the non-baptized party is pagan, Jewish, Mohammedan, or even a catechumen (cf. canon 1070, § 1). What is understood by the words "baptized in the Catholic Church," see n. 741.

II. Existence of the impediment. 1. By divine law, marriages between a baptized and a non-baptized party are prohibited for the same reasons as mixed marriages (n. 762; St. Thomas, Supplement, q. 59, a. 1).

2. By ecclesiastical law, a marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null (canon 1070, § 1). Therefore, from the new Code in force, that is, from the day May 19, 1918, the impediment does not exist between a party who has been baptized, but not in the Catholic Church and not converted to it from heresy or schism, and a non-baptized party;¹ and this holds even if the non-baptized party is Catholic, or rather is regarded as Catholic.

Corollary I. Those baptized in the Catholic Church are subject to the impediment even if they were born of non-Catholics and educated non-Catholically. For the Code indeed exempts such persons from the juridic form of marriage (n. 742), but from this it does not follow that they are also exempt from the impediment of disparity of cult. There is added a response of the Holy Office - published in the letters of the Sacred Congregation of Propaganda Fide dated April 1, 1922² - which favors the opinion defended.

Corollary II. The divine natural prohibition extends itself further than the ecclesiastical diriment impediment; the former regards all baptized persons, the latter only those baptized in the Catholic Church or converted to it from heresy or schism. I said "divine-natural prohibition," since it is disputed whether divine positive law prohibits marriages of the faithful with infidels (cf. St. Thomas, Supplement, q. 59, a. 1, ad 1).

Corollary III. The diriment impediment of disparity of cult is in force everywhere, even in regions recently converted to the Catholic faith.³

III. Cessation of the impediment. The divine prohibition ceases almost as was said concerning mixed religion (n. 763). The ecclesiastical diriment impediment ceases through dispensation. But the power of dispensing outside mission places is rarely granted to Bishops.

IV. The requisites in order that a dispensation be granted are the same as those which are required for dispensation in mixed religion (canon 1071; n. 764). When marriage is to be contracted with a Hebrew party, the Holy Office adds to the dispensation the clause: "And provided that neither before nor after the marriage entered before the Catholic pastor do the parties go to a rabbi to celebrate marriage by the Jewish rite."

Note 1. The Holy Office, June 21, 1912, declared: 1° that dispensation upon the impediment of disparity of cult is never granted unless all the conditions "or cautions" have been expressed; 2° that a dispensation upon the impediment of disparity of cult imparted by one having power from the Holy See, without the prescribed cautions having been required, or with them repudiated, is invalid; 3° that the nullity of the marriage can be declared by the Ordinary himself when it is evident that the dispensation was thus invalidly granted.

Note 2. The Church, in dispensing upon the impediment of disparity of cult, is no longer understood, as before,⁴ to dispense from the impediments from which the non-Catholic party is exempt;⁵ indeed, it seems that already from the new Code these things held.⁶

Note 3. With regard to the declaration of nullity of marriage because of disparity of cult, what was said concerning the impediment of ligamen holds (p. 619; canon 1990).⁷

V. Obligations of those about to marry, etc. With regard to the obligations of those about to marry, of pastors of souls in forestalling marriages of this sort, of the confessor with respect to a penitent seeking such a marriage, likewise with regard to assistance to be given to marriages of this sort, and with regard to the obligation respecting a marriage contracted, the same things are to be observed as if there is question of a mixed marriage (canon 1071; n. 765 and following).

¹ From this it is also clear how this rather frequent case is to be resolved: Caius and Titia, non-Catholic spouses, are separated from each other by civil divorce. Titia, so that she may marry Sempronius, a Catholic, again, herself also desires to be joined to the Catholic Church. To set aside the impediment of bond by which she still seems bound to Caius, she proves in the forum of the Church that she certainly was not baptized in her sect, or certainly was baptized invalidly, while Caius was baptized. In such a case can the ecclesiastical judge decide that the prior marriage was invalid because of disparity of cult between Caius and Titia? I respond: if their marriage was celebrated before the day May 19, 1918, affirmatively; but if afterward, negatively (Vlaming, op. cit., I, n. 289).

² Cf. Archiv fur katholisches Kirchenrecht, 1927, p. 180.

³ Constitution of Benedict XIV, Singulari nobis, February 9, 1749.

⁴ Holy Office, September 16, 1824 (Collectanea, n. 1235).

⁵ Sacred Congregation of Propaganda Fide, May 20, 1931 (in Periodica de re morali, etc., 1932, p. 16).

⁶ Cf. the cited response of the Sacred Congregation of Propaganda Fide.

⁷ Cf. Pontifical Commission, October 16, 1919, ad 17 (A.A.S. 1919, p. 476 sq.).

VI. Cases of doubtful baptism. There is question either of a marriage to be contracted, or not yet contracted, or of a marriage already contracted.

1. When marriage has not yet been contracted, one must proceed in this way:

a) If there is question of a marriage to be contracted by a Catholic doubtfully validly baptized with a non-baptized person, the Catholic, with the things to be observed being observed, should be rebaptized under condition, and a dispensation in the impediment of disparity of cult should be requested. If because of the circumstances one cannot proceed to the repetition, under condition, of baptism, there is had a doubtful impediment by a doubt of fact, in which the Ordinary can dispense (canon 15).

b) If there is question of a marriage to be contracted by a Catholic with a non-Catholic person doubtfully baptized or doubtfully validly baptized, one must act thus:

If the non-Catholic wishes to be converted, with the things to be observed being observed, let him be rebaptized under condition; once this has been done, the impediment no longer subsists.

If the non-Catholic does not wish to be converted, it is not lawful to rebaptize him under condition,¹ and so to remove the impediment which perhaps exists. What therefore must be done? In the case there are present two impediments doubtful by a doubt of fact - namely of mixed religion and of disparity of cult - in which the Ordinary can dispense (canon 15). But, with approved practice considered, it is not lawful to put an end to the case in this way. In circumstances of this sort the truth must first be inquired into, so that it may be known whether there is need of a dispensation from mixed religion or from disparity of cult. If the doubt is not sufficiently solved, let a dispensation from mixed religion and, for caution, from disparity of cult be requested; indeed, it suffices to request a dispensation from mixed religion, because the Holy See joins to a dispensation from that impediment a dispensation for caution from the impediment of disparity of cult.

In inquiring into the truth, first let it be seen whether the matter can be proved directly, namely by documents or by witnesses.² If direct arguments are lacking or do not make full faith, recourse should be had to indirect proof taken from presumptions; in carrying out this business, the norms which follow hold:

a) In doubt concerning the fact of baptism, from a response of the Holy Office:³

1° Baptism should not be presumed if the non-Catholic party had parents belonging to a sect which rejects Baptism, or in which Baptism is conferred only on adults; likewise if he had parents who professed that they wished to belong to no sect, and that they honored the Supreme Being rather by upright morals, as they say, than by any special cult.

2° Baptism should be presumed if the parents belonged to a sect which holds Baptism necessary, or in which at least ordinarily it is conferred on children, and the same parents were zealous in their sect; likewise, if only one of the parents, who had the chief role in education, was zealous in his sect, which holds Baptism as necessary, provided that the other spouse is not then known to have been positively opposed to the conferral of Baptism.

3° But if each parent was negligent in the sect, or belonged to a sect which indeed retains Baptism but does not hold it as necessary; likewise if, after inquiry has been made, it is unknown or not sufficiently established whether that one parent had the chief role in education who, in his sect holding Baptism necessary, was zealous, in these cases recourse must be had to the Holy See.

b) In doubt concerning the validity of baptism, from a response of the Holy Office:⁴

1° With regard to heretics whose Rituals prescribe the conferral of Baptism without the necessary use of essential matter and form, the particular case must be examined.

2° With regard to others, who baptize validly according to their Rituals, Baptism must be judged valid. But if the doubt persists even in the first case, Baptism must be judged valid in order to the validity of marriage.

3° But if it is certainly known that there is no Baptism according to the actual custom of that sect, the marriage is null.

2. When marriage has been contracted, because of the favor of law one must stand for the value of the marriage until it is certainly proved that one party was baptized and the other was not baptized (canon 1070, § 2, compared also with canon 1014); understand: that one party was baptized in the Catholic Church, or was converted to it from heresy or schism. Hence a marriage is to be presumed valid:

a) Between a party certainly baptized Catholicly and a party doubtfully baptized.

b) Between two parties doubtfully baptized Catholicly.

c) Between a party doubtfully baptized Catholicly and a party certainly not baptized.

Objection. If one party was doubtfully baptized Catholicly, and the other certainly was not baptized, one cannot stand for the value of the marriage. For doubtful baptism in order to marriage is presumed valid.⁵

Response. The assertion concerning doubtful baptism, insofar as there is question of a contracted marriage, seems unable to be reconciled with the clear text of canon 1070, § 2 and canon 1014, and therefore no longer holds.

¹ Holy Office, April 3, 1878.

² To prove that baptism was conferred, if prejudice is done to no one, one witness above every exception is sufficient, or the oath of the baptized person himself, if he received baptism at adult age (canon 779).

³ August 1, 1883 (Collectanea, n. 662).

⁴ November 17, 1830 (Collectanea, n. 649).

⁵ Holy Office, September 9, 1868; July 7, 1880; August 1, 1883, etc.