Chapter — Wouters, Manual of Moral Theology
Chapter II. On the Indissolubility of Matrimony
Indissolubility is the property by force of which the bond of matrimony, while the spouses are living, cannot be dissolved.
Indissolubility is distinguished as twofold, intrinsic and extrinsic. Intrinsic indissolubility consists in this, that matrimony cannot be dissolved by the cause through which it arose, that is, by the consent of the contracting parties. Matrimony is said to be extrinsically indissoluble insofar as it is not dissolved by God and cannot be dissolved by another external cause. Therefore matrimony is extrinsically soluble insofar as God has either established that in some case it will be dissolved by the fact itself, or has bestowed on some power the faculty of dissolving it. Now:
I. Every marriage is entirely intrinsically indissoluble, that is, it can never be dissolved by the consent of the contracting parties. This is clear from Sacred Scripture,1 from the Council of Trent,2 from proposition 67 proscribed by Pius IX in the Syllabus of Errors,3 and from the encyclical of Pius XI Casti connubii;4 likewise from reason. Matrimony, as a natural society, must of itself be apt for the ends of matrimony, to which education belongs. But soluble matrimony is not of itself apt for education; for such a marriage would greatly harm education, which requires a prolonged union of the parents and demands that parents leave goods to their children. Add that solubility is opposed to the very close friendship proper to matrimony, and exposes the morals of married persons to dangers (St. Thomas, Contra Gentiles, book 3, ch. 123; Supplement, q. 67, a. 1; St. Alphonsus VI, 956). Add besides that the matrimony of Christians, by the fact that it has been raised to the dignity of a sacrament, has received a new firmness.
II. With regard to extrinsic indissolubility, first note that the faculty of dissolving any marriage whatever by its own authority belongs to no human power; for no human power can by its own authority dissolve a right established by a higher power, such as is the natural law, by force of which matrimony cannot be dissolved. Hence if some human power can dissolve certain marriages, it cannot do this except in the name of God, or by vicarious power, as it is called. With these preliminary points established, concerning the extrinsic indissolubility of matrimony the following are laid down:
- Matrimony between baptized persons:
a) If it is consummated, it is entirely indissoluble. This is clear 1° from ecclesiastical documents, that is, from canons of Councils and Synods, from decrees of the Holy See,5 and from canon 1118, which declares: "A valid ratified and consummated marriage cannot be dissolved by any human power and by no cause, except death." It is deduced 2° from the fact that the Church has never used such a power. The reason is that ratified and consummated matrimony, by God's ordinance, perfectly represents the indissoluble union of Christ with the Church (p. 553).
Objection. Christ the Lord, when promulgating in the Gospel the indissolubility of Christian matrimony, nevertheless made an exception for the case of adultery: "But I say to you, that whoever shall put away his wife, except for fornication, and shall marry another, commits adultery" (Matthew 19:9). Therefore, in the case of adultery by one spouse, marriages even of baptized persons can be dissolved. So the Greek schismatics and most Protestants.
Response. As is clear from the context and from the parallel passages (Mark 10:11; Luke 16:18; 1 Corinthians 7:10, 11), Christ proclaimed the absolute indissolubility of the matrimonial bond, even for the case of adultery. Therefore he added absolutely: "And he who shall marry her that has been put away commits adultery."
Therefore it must be said that the exceptive clause "except for fornication" affects only the prior part of the sentence, "Whoever shall put away his wife, commits adultery" (or: "causes her to commit adultery," Matthew 5:32), but not the other part of the sentence: "Whoever shall marry another commits adultery."
Christ, therefore, when the Pharisees ask, "Is it lawful for a man to put away his wife for any cause whatever?" answers that it is indeed lawful to put away a wife for the cause of fornication; nevertheless it is never lawful to put away a wife in such a way that one marries another wife while the former is living. In other words, Christ teaches that in the case of adultery by one spouse separation, as they say, with regard to bed and cohabitation, is lawful, but that the matrimonial bond itself is not dissolved.
b) If it is not consummated, it is dissolved both by law itself through solemn religious profession, and by dispensation from the Apostolic See granted for a just cause, with both parties asking, or with one of the two asking even if the other is unwilling (canon 1119). It is said:
alpha) Through solemn religious profession; this is recognized in the law of the Decretals both by Alexander III6 and by Innocent III,7 and is of faith from the Council of Trent.8 Moreover note well that the said force does not belong to simple profession, even one emitted in the Society of Jesus or by nuns, nor to the reception of Order itself, nor to the vow of chastity solemnized in the reception of Order.9 Finally, since the marriage is not dissolved except at the very moment of solemn profession, the other party cannot pass to new nuptials before it is emitted.
It is disputed whether solemn religious profession dissolves marriage by ecclesiastical law10 or by divine positive law.11 Now it seems to dissolve it by ecclesiastical law, and not by divine positive law. For, first, the opinion which asserts divine positive law is not proved, although such an assertion would seem to have to be proved. Next, a priori it seems little probable that a thing which belongs solely to an ecclesiastical institution, namely the solemnity of vows,12 would by divine law have the force of dissolving matrimony. Then, solemn and simple vow seem not to differ in nature or substance;13 and, this being supposed, it is difficult to admit that an irritant force concerning matrimony belongs by divine law to the former, when the same cannot be affirmed of the latter. Finally solemn profession, considering only divine positive law, does not dirimently impede matrimony to be contracted, so that the later marriage, considering that law alone, can be reconciled with solemn profession; and, this being supposed, it can scarcely be admitted that a marriage already contracted, attending to divine positive law alone, is dissolved by solemn profession.
Objection. The Council of Trent declares: "If anyone says that a ratified but not consummated marriage is not dissolved through solemn religious profession by one of the spouses, let him be anathema."14 Hence the dissolution of the said marriage through solemn profession is a dogmatic, immutable truth. But if you admit ecclesiastical law, solemn profession can be deprived of the privilege.
Response. The opposed canon of the Council of Trent proves divine law no more than canon 9, session 13 and canon 2, session 23 prove the Easter precept and minor Orders to be of divine law. The cited canons condemn the errors of heretics with regard to the statutes of the Church; namely, those who deny force to the said statutes deny the power of the Church, which is heretical.15
Note. Solemn religious profession does not seem to dissolve a marriage entered between non-baptized persons and consummated in infidelity, even if after conversion it has not been consummated; since it is clear from no ecclesiastical document that such force belongs to the said profession, although those who judge that marriage is dissolved by natural law or by divine positive law through solemn profession ascribe the aforesaid force to it with greater right than others do.16
beta) Through dispensation granted by the Apostolic See for a just cause. This is clear from the constant practice of the Church.17 A just cause is required, however, because the Church proceeds by vicarious power; and just causes are, for example, notable error of quality in contracting marriage; voluntary and too-protracted delay by one spouse in consummating the marriage; extraordinary and implacable enmities of the spouses; supervening disease, especially that which impedes the use of marriage; supervening crime, especially if a lengthy punishment of imprisonment is inflicted on the delinquent; probable impotence of one spouse, which nevertheless cannot be proved either to have been antecedent or to be perpetual; asserted but not sufficiently proved nullity of the marriage, for example under the head of force and fear, joined with certainty of non-consummation.18 If the case and cause seem to occur, the matter should be referred to the Ordinary and through him recourse should be had to the Holy See, namely so that useless wanderings about may be avoided.
Note. A dispensation granted by the Holy See concerning a ratified and non-consummated marriage, or a permission made for passage to other nuptials on account of the presumed death of a spouse, always carries with it a dispensation from the impediment arising from adultery with a promise or attempted celebration of marriage, if there should be need of one (canon 1053).
- Matrimony between a baptized party and a non-baptized party:
a) If it is not consummated, it is dissolved - as has been said concerning marriage entered between baptized persons - both by law itself through solemn religious profession, and by dispensation from the Apostolic See granted for a just cause (canon 1119).
b) If it is consummated, it likewise very probably can be dissolved by the Holy See, according to the doctrine soon to be handed down, by which any marriage can be dissolved by the Supreme Pontiff which has not been consummated after the baptism of both parties, except only the marriage of which neither party is baptized.
- Matrimony between non-baptized persons:
a) If neither party is converted to the faith, that is, baptized, it is also extrinsically indissoluble. For a marriage of this kind cannot be dissolved: not by civil power, since it cannot dissolve the natural law (p. 548); not by the Supreme Pontiff, since he lacks power, even vicarious power, over infidels; nor by force of any law by which God has established that in some case marriage will be dissolved. In the Old Law, indeed, there had been conceded to the Jews the faculty of giving a bill of repudiation for dismissing wives, and this faculty also seems to have been extended to the nations.19 But Christ the Lord revoked the bill of repudiation and restored to matrimony its primitive indissolubility, as is clear from Matthew.20
b) If one party is converted to the faith:
alpha) It is dissolved, the requisite conditions being fulfilled, in favor of the faith from the Pauline privilege (canon 1120, § 1), or in the case of the Apostle, as it is called; the Pauline privilege will be discussed particularly in the scholion.
Likewise it can be dissolved by the Holy See: certainly, if the marriage has not been consummated after conversion; very probably, even if it has been consummated after conversion. This follows from the things to be said under c).
c) If both parties are converted to the faith, it can be dissolved by the Holy See: certainly, if the marriage has not been consummated after the conversion or baptism of one of the converts; very probably, even if it has been consummated after the conversion of one of the converts; but not if it has been consummated after the conversion of both. It is said:
alpha) Certainly, if it has not been consummated after the baptism of one of the converts. For from ecclesiastical documents, especially from the constitution of Gregory XIII Populis ac nationibus,21 it is deduced that marriages of this kind can be dissolved. But they are not dissolved by force of the Pauline privilege, which does not regard the marriage of two converted infidels (n. 721).
The major is proved: the constitution of Gregory XIII decrees: "Considering that marriages of this kind contracted among infidels are indeed true, yet are not to be judged so ratified that, when necessity counsels, they cannot be dissolved... we grant the faculty of dispensing,... so that they may be able to contract marriage with any one of the faithful... provided that it is established... that the absent spouse cannot be lawfully admonished.... And these marriages indeed, even if afterwards it should become known that the former infidel spouses could not declare their will because they were justly impeded, and that they had even been converted to the faith at the time of the second marriage already contracted, nevertheless must never be rescinded, but are valid and firm." But these things must at least hold if the marriage was not consummated after the baptism of one of the converts.
beta) Very probably, even if it has been consummated after the conversion of one of the converts. So authors now rather commonly. The reason seems to be that in this case matrimony - as not yet both elevated to a sacrament on the part of each party and consummated after the sacrament received by each party - does not perfectly represent the union of Christ with the Church, and therefore lacks full firmness.22
gamma) But not if it has been consummated after the conversion or baptism of both parties. This is deduced first from the fact that in this case there seems to be a ratified marriage (n. 713) and, as is supposed, a consummated one; next from the fact that the Church has never dissolved marriages of this kind. There is added the consensus of theologians and canonists.
Conclusion. The Supreme Pontiff, provided that at least one of the spouses is baptized, can by vicarious power and from a proportionate cause dissolve every marriage which was not consummated after the baptism of both parties.
In proving the things on which the aforesaid conclusion rests, we have relied only on divine documents, that is, Sacred Scripture, and ecclesiastical documents. But it is helpful to illustrate the intrinsic reason in these terms: the indissolubility of marriage arises from a twofold source, from natural law and from divine positive law: from natural law, insofar as both the good of offspring and the good of the contracting parties require indissolubility; from divine positive law, insofar as matrimony established by God was a foreshadowing of that divine and indissoluble union between Christ and the Church; and this foreshadowing or mystical signification is implanted not only in the sacrament of matrimony, but, as the Supreme Pontiffs23 and theologians bear witness, in every marriage. Yet it is implanted more perfectly in the sacrament of matrimony than in a marriage which is not a sacrament, because the sacred element which is more present in the sacrament of matrimony is more apt to receive the character of representing that sacred union.24 Furthermore, it is implanted more perfectly in a marriage which is not a sacrament when it has been consummated than when it has not been consummated; likewise more perfectly in sacramental matrimony when consummated than when not consummated,25 because the bond which has been ratified by the real handing over of the flesh is more apt to receive the character of foreshadowing that perfect union of Christ with the Church; indeed sacramental matrimony, not yet consummated, according to authors represents the more dissoluble union of Christ with the soul. And these things seem sufficiently to exhibit the reason for the different degree of indissolubility.
1 Mark 10:11; Luke 16:18; 1 Corinthians 7:10, 11.
2 Session 24.
3 Denzinger-Bannwart, n. 1767.
4 A.A.S. 1930, pp. 550-556, 558, 572-576.
5 Cf. De Smet, De sponsalibus et matrimonio, n. 358, 359.
6 C. 2 (4) and 7, X, III, 32.
7 C. 14, X, III, 32.
8 Session 24, canon 6.
9 Cf. De Smet, op. cit., nn. 336, 337.
10 Understand, however, a vicarious ecclesiastical law, so to speak, because the Church cannot dissolve marriage except by vicarious power; see p. 548.
11 St. Bellarmine (De monachis, book 2, ch. 38) and others judge that marriage is dissolved by solemn profession by force of natural law, that is, from the very nature of solemn profession.
12 De officiis religiosorum, t. I, n. 1218.
13 Session 24, canon 6.
14 Session 24, canon 6.
15 Aertnys-Damen, op. cit. II, n. 924; Gasparri, op. cit., n. 1082.
16 Cf. De Smet, op. cit., n. 339.
17 Cf. De Smet, op. cit., nn. 328, 332.
18 Vlaming, op. cit., n. 606.
19 In the Old Law there was divorce with regard to the bond. For: 1° a repudiated wife could marry another man; 2° when the other man had died, the former husband could not receive her as wife, but she was not prohibited from marrying another (Deuteronomy 24:1-4).
20 Chapter 19:3 sq.
21 January 25, 1585.
22 Cf. encyclical of Pius XI Casti connubii (A.A.S. 1930, p. 552).
23 Leo XIII, encyclical Arcanum; Pius XI, encyclical Casti connubii (A.A.S. 1930, p. 570).
24 Ephesians 5:32.
25 Encyclical of Pius XI Casti connubii (A.A.S. 1930, pp. 552, 570).