The Dissolution of Marriage Between Baptized Persons, Not Consummated

The Bond of Matrimony Is Indissoluble

“And among other things, do not omit continually and accurately to hand down and inculcate to the faithful committed to your vigilance the doctrine of the Catholic Church concerning the Sacrament of Matrimony and concerning the indissoluble bond of Matrimony. For none of you is unaware that, according to the doctrine of the Catholic Church, a ratified Marriage of the faithful before consummation can be dissolved by the solemn profession of either spouse in some approved religious institute, or by a canonical dispensation which can be granted only by the Roman Pontiff and which is granted most rarely and only for the gravest causes. And you also know very well that the same Church, according to evangelical and Apostolic doctrine, clearly teaches that the bond of Matrimony can never be dissolved on account of the adultery of either spouse, or on account of heresy, or troublesome cohabitation, or affected absence from a spouse, but remains perpetually firm and indissoluble according to the very well-known pronouncement of inspired Adam, the oracle of Christ the Lord, the words of the Apostle, and the tradition of the Church, all of which you know very well. Indeed, this perpetual and indissoluble firmness of the matrimonial bond, not flowing from ecclesiastical discipline, is so great in a consummated Marriage both by divine and by natural law that it can never be dissolved for any cause, not even by the Roman Pontiff himself, even if conjugal fidelity is broken by the adultery of either spouse.” Pius IX, Letter Verbis exprimere to the Archbishop of Făgăraș and Alba Iulia and the Suffragan Bishops, 15 August 1859.

“67. By the law of nature the bond of Matrimony is not indissoluble; in various cases divorce properly so called can be sanctioned by civil authority.” Proposition of the Syllabus condemned by Pius IX.

Marriages Dissolved by Protestants

“Marriages of Protestants dissolved by Protestant consistories cannot be regarded as dissolved; a sentence of non-Catholic assemblies, by which especially the nullity of Marriages is declared and the dissolution of their bond is intended to be effected, can obtain no force and absolutely no effect before the Church.

“The party released cannot be joined to a Catholic in Matrimony.

“Parish priests cannot approve such nuptials by their presence and confirm them by their blessing.

“Catholic spouses who, by the authority of a non-Catholic consistory alone, having shaken off the bond of the prior Marriage, have hastened to second nuptials before a non-Catholic minister, can be admitted to participation in the Sacraments if, repenting of the crime committed, they humbly seek pardon and produce true fruits of penance, the first of which must be that they separate from the second spouse if the first is still living.” Pius VII, Brief of 8 October 1803 to Karl Theodor von Dalberg, Archbishop of Mainz; C. 1286.

n. 979.

Matrimony Is Dissolved by Religious Profession

“After legitimate present consent, it is lawful for either party, even against the opposition of the other, to choose a monastery (as certain saints were called from their nuptials), provided that carnal intercourse has not occurred between them; and it is lawful for the other who remains, if, after being admonished, he is unwilling to observe continence, to pass to second vows. For since they had not been made one flesh together, one can very well pass to God and the other remain in the world.” Chapter Verum, 2, On the Conversion of Married Persons.

n. 979.

“...Moreover, because, although the woman M. was espoused to the aforesaid man A., nevertheless, as she asserts, she is still unknown carnally by him, We command that, if the aforesaid man has not known her carnally and she wishes to pass to the religious life, after sufficient caution has been received from her that within the space of two months she must either pass to the religious life or return to her husband, you absolve her from the sentence of excommunication by which she is bound; but if each passes to the religious life, let each restore to the other what he or she is known to have received from the other. Certainly, that which the Lord says in the Gospel, that it is not lawful for a man to dismiss his wife except on account of fornication, is to be understood, according to the interpretation of the sacred utterance, of those whose Marriage has been consummated by carnal intercourse, without which it cannot be consummated.” Chapter Ex publico, 7, same title. Cf. chapter Ex parte, 14, same title, where it is established that Matrimony is dissolved by religious profession, not by a resolve to observe chastity in the world.

n. 1015.

On the Profession of Simple Vows with Respect to the Dissolution of Marriage

“...A ratified and non-consummated Marriage is dissolved only by the solemn profession of vows, and not by the profession of simple vows. Therefore, in a case in which a man, according to the law issued on 19 March 1857 by the Sacred Congregation on the State of Regulars, must emit simple vows before solemn profession, either he or his spouse will be able to have recourse to the Apostolic See to obtain the faculty that solemn vows may be emitted at once.” The same Sacred Congregation, 25 January 1861.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 5 passages

Vol. II, Treatise on Matrimony, Ch. III, Art. II, Namely, its Unity and Firm…, Point I. On the Firmness of Matrimony Insofar as It Regards the Bond

- Nevertheless, three cases must be excepted, for:

A ratified and non-consummated matrimony of Christians ¹ can be dissolved for a grave cause through a dispensation of the Pope ², from a power divinely granted to him. This is evident from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.

¹ Above (note to no. 745) we said that matrimony cannot be called consummated unless the act is of itself apt for the effect of generation. Indeed, St. Alphonsus (book 6, no. 1036), after St. Thomas (In IV Sentences, distinction 41, question 1, article 1, question 4, reply to objection 2), further requires an act perfect on the part of each spouse, which doctrine can contribute to the solution of grave questions.

Moreover, observe two things. The first is that this has force not only as regards the first matrimony which anyone contracts, but also as regards the second, third, etc. Hence, if widowed persons marry, even persons who have offspring from a preceding marriage, the law has force also with them; and therefore, if either makes profession in Religion before the present matrimony is consummated, the bond will be dissolved. The second is that a wife who, within two months while deliberating about embracing Religion, has been known by her husband through force can nevertheless, according to the more common and more probable opinion of Theologians and Canonists, enter Religion even against the will of her husband; and he ought therefore to impute it to himself that, since profession in the case does not dissolve the bond, he must remain without hope of marriage until the death of his wife. The Doctors except the case in which the wife has conceived offspring who could not easily be educated without the mother. See Sanchez, book 2, disputation 22, no. 7, and Pirhing, book 3, title 32, no. 56.

² There is no dispute in the forum and in practice concerning the power of the Supreme Pontiff to dispense in a ratified and non-consummated matrimony, and the sole controversy is accustomed to be reduced to the cause, namely, whether a cause sufficient for granting such a dispensation is present. Thus Benedict XIV (Canonical Question 24). See also his Canonical Questions 108 and 479, in which he says that this doctrine is notoriously common among Theologians and Canonists. Therefore what St. Alphonsus says (book 6, no. 959), that there are two probable opinions concerning this question, must be held among obsolete opinions. You have several examples of these dispensations in Schmalzgrueber (book 4, title 19, no. 46) and Pignatelli (volume 1, consultation 148, no. 5), and later examples down to Pius VII, Gregory XVI, and Pius IX in Perrone (On Matrimony, volume 3, pages 509-510, Roman edition).

This faculty must also be extended to marriages consummated in infidelity if, after baptism, by which the marriage becomes ratified, the spouses have not yet consummated it again. And this is most clearly confirmed from the Letters of Gregory XIII of January 25, 1585, which you have in Clericatus (On Matrimony, decision 11, no. 28), in which he first establishes this faculty in these words: Therefore, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. Hence he concludes that by force of the dispensation those marriages are valid which spouses converted to the faith contracted with others, even though the prior spouse also then already existed as converted to the faith. These marriages, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will, and that they also had been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. Nor did Gregory XIII alone, but also Urban VIII, in Letters given October 20, 1624, and again September 17, 1627, declare this very thing, namely, that for a grave cause the Apostolic See can sometimes dissolve marriages of infidels, as Cardinal de Lugo testifies in the supplicatory libellus which he offered to Urban VIII and which you have in Cardenas (Theological Crisis, part 4, dissertation 2, no. 552). But as for the attempt of Pontius (book 7, chapter 48, no. 22, and book 9, chapter 2, no. 17), and after him Lambertinius (On the Synod, book 13, chapter 21, nos. 4-6), to twist the Letters of Gregory into a mere dispensation from interpellating the spouse, it must all but be rejected among absurdities, as plainly repugnant to the text brought forward.

Concerning the aforesaid text of Benedict XIV, the VV. object (page 805) that the words, There is no dispute in the forum and in practice, indicate that a speculative controversy still subsists in the schools and among theologians.

Reply. The VV. show (ibid.) that they surely are not ignorant of what is read thus in Canonical Question 479 of the same Benedict XIV: The second point is that no question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing in a ratified and non-consummated matrimony, since today the affirmative opinion is common among Theologians and Canonists and is received in practice, as is notorious. How, then, do the VV. assert that the words of Benedict XIV indicate that a controversy STILL subsists in the schools and among theologians, when the same Benedict establishes as a principle that no controversy can any longer be raised concerning this power of the Supreme Pontiff, because TODAY the affirmative opinion is common among Theologians and Canonists? Do these two things not mutually conflict: the controversy still subsists, and no controversy can any longer be raised?

The VV. reply (ibid.) that in question 479 Benedict speaks of a more recent time.

Reply 1. When the VV. say that according to Benedict XIV the controversy STILL subsists, do they affirm this concerning theologians who had written two centuries before, and not rather concerning the age of Benedict himself? Reply 2. Does not the same Benedict, in question 108, which is also cited in the Note, report from letter 180 of Cardinal d'Ossat that even under Clement VIII there was no controversy in the Sacred Congregation concerning this power of the Pontiff, although fourteen men had been summoned by the Supreme Pontiff for consultation, namely, eight Cardinals, four Auditors of the Rota, and two Penitentiaries of the Vatican Basilica? Reply 3. And if in the Roman Congregation there was already no controversy from the age of Clement VIII, and Benedict XIV in question 479, namely, a century and a half before us (for that cause was treated in January 1726), wrote that no question could any longer be raised concerning this power of the Supreme Pontiff, while from that age down to us ever greater light has shone upon this controversy, why finally will it be held unlawful to say that the opinion which denied this power to the Roman Pontiffs is now obsolete?

The VV. add (ibid.) that Benedict XIV (On Beatification and Canonization, book 4, chapter 42, no. 13) has the following: Concessions of this kind are sometimes made, yet from them it is not deduced that it is certain de fide that Pontiffs can release men from a ratified but non-consummated matrimony and from a vow of continence annexed to monastic profession.

Reply. Let it pass; for it is not contended in the Note that it must be held de fide that the Roman Pontiffs possess this power, so that whoever contradicts it must be considered a heretic. Moreover, who does not know that the Church has not been accustomed to arrive at definitions of this kind, namely, that something must be held de fide, unless a grave cause demanded it? Benedict brings forward those examples to show how the Apostolic See permits the cult of the Blessed, and yet that it must not therefore be held de fide that they are participants in heavenly glory. But he had premised (ibid., no. 9) that although it appears probable that the judgment of the Supreme Pontiff in equipollent Beatification is not infallible and does not pertain to the faith, nevertheless it is also certain (he says) that he will not be free from the note of temerity who contends that he erred and who reproves the cult which the Pontiff himself approved.

And indeed James Pignatelli judged no differently concerning the opinion which denies to the Roman Pontiffs the faculty of dispensing in a merely ratified matrimony (Canonical Consultations, book 1, consultation 148, no. 6), writing: Therefore, by the judgment of all Canonists and very many Theologians, and by the examples of the Supreme Pontiffs down to our times, this has been so confirmed that it would be temerarious to assert the contrary. Nor did George Gobat judge otherwise (tract 10, no. 691): Nor do I think that the opinion of Pontius can now be defended without insult to the Apostolic See, since Diana named seven Pontiffs who easily dispensed in thirty such cases, and most recently Innocent X, after such long and sharp disputes among the Theologians concerning this power, used it toward a common laborer, supported by no favor at all, and indeed without a cause concerning the public good, as I most faithfully related above (no. 678). Hence also Elbel (On Matrimony, conference 15, no. 360): It cannot be said without the note of temerity that the Pontiffs erred in dispensing.

Moreover, whatever anyone judges must be thought concerning these judgments, not even the VV. will be able to call into doubt that the affirmation of the Holy Doctor concerning this question, There are two probable opinions, leads to very grave inconveniences, even with their own principles considered. And indeed it now follows that the Roman Pontiffs therefore acted in this matter relying upon an opinion which can be false, indeed which is probably false. Yet, first, the right of a third party is also at issue here, for it is known that dispensations of this kind were also granted against the will of the other party. And if the dispensation must be called merely probably valid, did not the VV. elsewhere contend (page 799) that probability avails nothing against a right certainly existing beforehand? But is it not otherwise certain that a right had already been acquired by the other party through the contract of matrimony? Would it not therefore have to be said that the Roman Pontiffs acted unjustly toward the other party? Does not Pontius (book 9, chapter 3, no. 8) bring forward this argument for denying this power to the Pontiff, because it appears difficult for the Pontiff to make a law against a right of justice acquired by a third party, or to dissolve a matrimony, which we see clearly in lesser contracts?

Furthermore, no one calls into doubt that through the rescission of matrimony a most grave injury is inflicted upon the Sacrament itself unless the matrimony was legitimately dissolved. But according to the principles of the VV. and of the Holy Doctor Alphonsus, is it licit to act with a merely probable opinion and at the same time with a probable and grave irreverence toward the Sacrament? Is it not evident that there is danger of this grave irreverence if a marriage is said to have been dissolved by pontifical dispensation only probably?

Moreover, since through a pontifical dispensation of this kind the faculty of passing to other nuptials is given to each spouse, could the spouses licitly proceed to these other, probably adulterous, nuptials? Could the Church consent that one be admitted to the Sacrament of matrimony who is still probably bound by the bond of a prior marriage and would probably remain in an adulterous union?

Deservedly, therefore, the Salmanticenses (tract 9, chapter 4, no. 59) say: Very often the Supreme Pontiffs have dispensed so that a ratified matrimony might be dissolved; but it must not be believed that the Pontiffs erred in a matter so grave and one which pertains especially to morals, because in matters pertaining to morals IT APPEARS IMPIOUS TO ASSERT that the Supreme Pontiffs err. And yet, if the affirmation of St. Alphonsus is admitted, would it not probably have to be said that the Supreme Pontiffs probably erred in a grave matter pertaining to morals?

Nor does Diana, whom the VV. otherwise sometimes exhibit as too benign, judge differently (volume 3, tract 1, resolution 94, no. 4): It is in no way likely that the Pontiffs err in a matter of such importance, since their error would gravely harm the Churches. For it would not only be in fact but would redound into doctrine pernicious to the Church, because by their deed they implicitly teach, etc. And a little later (no. 5): Their error would concern one of the principal heads of our Religion, which would indeed be intolerable. And, meeting an evasion, he adds: You will say that the error is only speculative, in which they are excused because they follow a probable opinion of various Doctors. The reply is that this does not satisfy, since even a speculative error in moral doctrine, or in a deed from which error in moral doctrine would follow, and especially in the Sacraments, would be most pernicious to the Church. Then he admirably adds (no. 12): And certainly it ought to suffice for any Christian, however learned, that the Roman Pontiffs, and especially Pius V, otherwise a most holy man and an eminent theologian, frequently dispensed in the aforesaid marriages.... It ought also to suffice that the same Roman Pontiffs declared that it was not in the mind of Christ in Matthew 5 and 19 to include the aforesaid matrimony, to which interpretation the greatest faith must be given, chapter Haec est fides, cause 24, question 1.

In support of the affirmation of St. Alphonsus, the VV. cite (pages 802-803) certain Authors whom they say were contemporaries of the Holy Doctor. Two things can be displeasing in this. The first is that from Cardinal Gotti, as though he denied this power to the Pontiff, they bring forth the general thesis concerning the indissolubility of matrimony and concerning its dissolubility on the occasion of conversion from infidelity or of Religious Profession; but they then suppress in silence the fact that he plainly proves the power of the Pontiff concerning dispensing in a ratified matrimony (question 8, doubt 3, section 1, no. 15). The second is that they likewise report from Antoine (chapter 2, question 8) what he states generally thus (reply 1): Every matrimony contracted absolutely is and always has been indissoluble without a special permission of God; and then suppress what is read thus (ibid., reply 4): A ratified but non-consummated matrimony of baptized persons is dissolved in two cases: first, through solemn Profession in an approved Religion; second, according to very many Canonists and Theologians, it is dissolved by the authority of the Pope. He then defends this thesis with several arguments.

Whatever may be the truth concerning this (as also concerning the fact that the VV. add on page 802 that Arriaga, S.J., was cited by the Salmanticenses, although these certainly mention Aragon but nowhere Arriaga), no one is ignorant that several others, especially somewhat more ancient Authors, could have been cited for the opinion which either denies or calls into doubt that power of the Roman Pontiff of which we speak. But this cannot or ought not move anything. We discern in this controversy what we have known to have occurred also concerning others: when they began to be debated in the Schools, there existed the greatest and afterward the sharpest disagreement of the Doctors; but in the course of time, both by the aid of maturer discussion and especially by that light which manifests itself from the Roman Apostolic See, even apart from any definition, through deeds or other reasons, the disagreement gradually diminished and finally vanished altogether.

In this matter the most prudent economy and long-suffering patience of the Apostolic See indeed showed itself admirable: while, at the time when by deeds or another reason it sufficiently indicated toward which side it inclined and where its sense tended, nevertheless, where no grave danger threatened, it did not prevent its children, otherwise prepared to obey, from meanwhile disputing among themselves, and sometimes in disputing from arriving at the point where they perhaps appeared to fall short of the reverence and honor due to so great a Mother.

In a not dissimilar manner, the same Apostolic See, while vindicating to itself by the deeds themselves the right of dispensing in a ratified matrimony, nevertheless patiently endured that, for example, Soto (In IV Sentences, distinction 27, question 1, article 4, section His tamen nihil obstantibus) should write concerning this doctrine: Nevertheless, to confess the weakness of my intellect, always saving the censure of the Church, it represents to me no appearance of probability. The Apostolic See further patiently endured that someone should say it to be free from sin while it dispenses concerning solemn vows and a ratified matrimony only because invincible ignorance excuses it. Thus Martin Wigandt (Tribunal of Confession, tract 2, proem, examination 3, no. 7): If, however, an opinion less probable in itself appears more probable to someone, he does not sin by following it in practice, because invincible ignorance excuses; and thus it can happen in dispensations of the Pope concerning solemn vows and a ratified matrimony. Therefore, according to this opinion, lest we ascribe to the depravity of the Roman Pontiffs acts of the Apostolic See of this kind, which we see frequently repeated through several centuries down to our days, we must evidently impute them to their ignorance! And hence Charmes, as the VV. themselves report (page 804), excused the Roman Pontiffs because THEY HAD BEEN DECEIVED! What wonder, then, that an opinion which necessarily leads to consequences of this kind became obsolete in the course of time?

The VV. observe (page 801) that St. Alphonsus, when he calls probable the opinion which denies that the Pope can dispense in a ratified matrimony, speaks only of speculative probability, as do the other Doctors.

Reply. What those mean who use a phrase of this kind in this controversy (for St. Alphonsus does not have it thus) can scarcely be understood, and one would rightly say that they labor under an equivocation. The controversy is whether the Pontiff has the power of dissolving a merely ratified matrimony, and therefore whether the dissolution of a matrimony through pontifical dispensation is valid or not. Does their opinion, then, reduce to this: speculatively, the Pontiff probably does not have this power, but practically he has this power absolutely? And again: the dissolution of a matrimony of this kind is probably not valid speculatively, but in practice it is absolutely valid? Such an opinion plainly savors of something most absurd.

But, as I said, these appear to labor under an equivocation. For when they ask whether the Pontiff can dispense in a ratified matrimony and reply that, speculatively speaking, he probably cannot, they understand that can concerning power necessary for the validity of the act. But when they speak of practice, they understand that can, not likewise concerning power for the validity of the act, but concerning the liceity or honesty of the act, which they finally derive either implicitly or explicitly from the invincible and therefore inculpable ignorance of the agent. But if, once the equivocation is removed, the question is asked whether the Apostolic See can licitly dispense in a ratified matrimony, will they dare to reply: speculatively speaking, it is probably illicit, but practically it is altogether licit? For if you set aside the excuse of invincible ignorance, do any circumstances arise in practice which dissolve the reasons for which the action is speculatively probably illicit?

In brief: if the power of the Pontiff necessary for the validity of the act must really be called doubtful, in practice there can by no means be avoided those inconveniences which we touched upon above, and especially this one: that those who are probably still bound by the bond of a preceding matrimony are admitted to other nuptials.

And indeed whatever may finally be added concerning invincible ignorance which excuses the dispensing Pontiff from sin must deservedly be called most empty. For all the Doctors now agree on what is deduced from the propositions condemned by the Apostolic See: that in conferring Sacraments it is illicit to follow a probable opinion concerning the validity of the Sacrament. And therefore it manifestly follows that in the present case it is illicit to admit to the Sacrament of matrimony where the consent of the contracting parties is probably invalid. Moreover, if this is illicit in practice, it must also be called illicit speculatively. Cardinal de Lugo writes excellently to the point (On Justice and Right, disputation 10, no. 189): If these inconveniences follow of themselves from that opinion, it certainly will not be probable even speculatively; for even for the speculative probability of a moral matter, the matter must be such that in human circumstances it does not bring inconveniences which render it illicit; but if of itself it brings inconveniences of this kind, by that very fact it is intrinsically illicit even speculatively speaking. Since, therefore, to conclude at last, this reason for excusing acts of the Apostolic See, repeated so often through several centuries down to us, as though through mere ignorance the Roman Pontiffs had used so doubtful a power as to give occasion to those gravest inconveniences on account of which they themselves condemned the use of probability in the subject matter, must be called most empty and altogether unworthy of a Theologian, it ought not appear surprising that Theologians finally judged empty the arguments which cast doubt upon this power of the Apostolic See, and that in the course of time the matter was brought to the point that the opinion became obsolete and must be called outmoded.

A ratified and non-consummated matrimony can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent, session 24, canon 6: If anyone shall say that a matrimony ratified but not consummated is not dissolved through the solemn religious profession of one of the spouses, let him be anathema ³. But in order that the spouses may deliberate about the use of this privilege, they have two months after the nuptials granted to them by the law itself ⁴, during which time they are not bound to render the debt. - St. Ligorius, nos. 870, 958. Indeed, even after that period of two months, if the matrimony has not been consummated, even through an illicit refusal of the debt, this privilege remains. Ferraris ⁵. Nor is it impeded by fornication had between the betrothed persons before the celebration of the matrimony ⁶. - Scavini.

³ It must be added here, which the Author omits, that before the convert to the faith binds himself in a second marriage, it is necessary to interpellate the spouse who is still an infidel, so that it may be established whether that spouse is willing to cohabit peacefully with the convert, etc., or, according to the different circumstances, whether that spouse is also willing to embrace the faith, etc. The reason is evident, because just as, in doubt concerning the death of a prior spouse, it is necessary before entering a second marriage to inquire whether the former is in fact dead, so in this case it is necessary to inquire whether the infidel spouse, according to the Pauline phrase, in fact departs.

Cardinal Brancatius, whom Clericatus afterward copied (On Matrimony, decision 11, no. 21), indeed judged (In IV Sentences, disputation 16, no. 198) that this interpellation is so necessary that a matrimony contracted without the will of the prior infidel spouse having been ascertained must be held invalid. He brings forward this reason (ibid., no. 199): that the Privilege does not have its force unless the conditions required by the legislator are observed. But the chief condition, he says, is that the infidel depart. Yet for the argument to conclude, the minor would have to be this: But the condition necessary for the validity of the matrimony is that the faithful party first investigate and know that the infidel wishes to depart. He himself does not prove this, nor, I think, will anyone easily prove it. And it is equally certain that a second marriage is not valid before the death of the prior spouse. But anyone who, confusing the occurrence of the condition with knowledge of that occurrence, reasoned thus would argue badly: Therefore, in doubt concerning the death of a spouse, another matrimony contracted without the doubt whether the spouse is in fact dead having been removed is invalid. The correct conclusion is that one sins who contracts another matrimony without certain knowledge of the death of the prior spouse, but that matrimony is valid or invalid according as the prior spouse was living or dead at the time when the new marriage was contracted. By parity you will conclude in our case that the faithful party indeed sins who, without consulting the infidel spouse and therefore in ignorance whether that spouse wishes to depart, contracts new nuptials; nevertheless, these nuptials are valid or invalid according as the condition of that departure exists or does not exist. But the argument which some, especially Missionaries, thought could be taken in favor of the opinion of Brancatius from a Declaration of the Sacred Congregation for the Propagation of the Faith in 1816 fails for several reasons. For other reasons were available on account of which the second marriage of a certain Tullius with Martha was judged invalid, as is easily evident to one inspecting the genuine Acts of the Sacred Congregation. See Sanchez (book 7, disputation 74, nos. 13-18), where he discusses both the necessity and manner of interpellation and the delays to be granted to the infidel.

The greater difficulty is what must be done when the convert cannot interpellate the other. This can happen especially for two reasons: either because the infidel cannot be approached, or because it is not established which of several persons must be interpellated, for example, when it is unknown which of several women whom a man has or has had is his legitimate wife.

As regards the first case, let the question now be omitted concerning an infidel who has maliciously fled or lies hidden so as not to be interpellated.

For, as the Doctors observe (see Clericatus, On Matrimony, decision 11, no. 26), it is then sufficiently established that the infidel is unwilling to be converted or to cohabit, and therefore the faithful party will be able freely to enter another matrimony. The question is when the infidel cannot be interpellated because it is unknown where the infidel is, or because the infidel is so far away that an admonition is considered impossible.

Many, whom Benedict XIV acknowledges to have been the greater number (On the Synod, book 6, chapter 4, no. 3), taught that in this case there is no need of interpellation because it is then morally certain that the infidel is unwilling to be converted and to leave his own people in order to cohabit legitimately with the convert; and no admonition is needed when there is moral certainty concerning the infidel's obstinacy. See Sanchez (book 7, disputation 74, no. 14) and Clericatus (On Matrimony, decision 11, no. 26). But perhaps one will admit this with difficulty. For the reason of distance and ignorance of the place to which one's own spouse was carried, for example, if a husband were seized and carried away from Africa and transported to the Americas, will indeed perhaps remove from the wife left in central Africa the hope of recovering him; but whence is it certainly proved that she is also obstinately unwilling either to be converted or to cohabit with him if perhaps found? Indeed, experience not rarely shows the contrary, and sometimes it has been discovered that the spouse first left behind came to the Christian faith before the abducted spouse did.

Pontius (On Matrimony, book 7, chapter 48, no. 22), whom Benedict XIV afterward copied (On the Synod, book 6, chapter 4, no. 3), contends that the faithful party cannot marry unless a dispensation of the Pontiff intervenes by which that admonition is supplied, namely, as Benedict XIV explains (l.c.), so that a new matrimony can be entered with the interpellation of the other infidel spouse omitted, when it is established that the spouse cannot legitimately be interpellated. But if these things are understood so that the sole effect of the dispensation is to release the faithful party from the obligation of inquiring whether the spouse wishes to depart or not depart, this opinion can deservedly appear more intolerable than the preceding opinion of Sanchez. For the latter at least supposes there to be moral and therefore sufficient certainty of the departure of the infidel spouse, and consequently supposes that essential condition to be present which, from the doctrine of the Apostle Paul, is both necessary and sufficient for the faithful party to pass to other nuptials once the bond of the prior marriage has been dissolved. The later opinion of Pontius, on the contrary, taking no account of the existence or nonexistence of that necessary condition, thinks that sufficient provision is made for the matter if, by means of a dispensation, someone makes no further inquiry into the will of the infidel, whether the infidel wishes to depart or not; just as if, in doubt concerning the death of a prior spouse, someone should think it sufficient for validly contracting another matrimony that it be authoritatively declared by the magistrate that an inquiry concerning the life or death of the spouse is very difficult or even morally impossible! For to this they finally reduce the whole force of the pontifical dispensation in this question. In this matter they also reserve for pontifical power parts which I would almost call ridiculous, namely, that it dispense from the interpellation of a spouse whom it is established cannot legitimately be interpellated! Yet if the condition required by the Apostle is perhaps in reality lacking, and the spouse left, for example, in Africa has a firm intention of preserving fidelity to his or her spouse for all time rather than departing, how will the bond of this legitimate and consummated matrimony cease? What if this spouse left behind has already received the Christian faith and baptism when the spouse abducted into slavery comes to baptism, or at least when the abducted spouse thinks about new nuptials, so that the former marriage has now become ratified and the nature of a Sacrament has accrued to it? Whence, I ask, will we derive, in the opinion of Pontius, the dissolution of this bond which is certainly essentially required beforehand for entering a new matrimony?

Therefore this difficulty, which clear facts testified was not imaginary, had to be provided for in another manner. For what even now occurs in the markets of Egypt, that both men and women carried away into slavery from the Mediterranean regions of Africa are sold although they are joined in matrimony, we know was also commonly done in past centuries so that colonists might be obtained for the immense deserts of America. When the Christian charity of the Missionaries had led these persons to the faith, there pressed the grave difficulty of how provision might be made for those whom it was not easy either to keep continent or to assist with matrimony, since they were bound by former marriages. The use of the faculty which the Apostle grants to those converted to the faith was impeded not only because the spouses left in barbarous places could not be interpellated but also because it had been learned by experience that not rarely the spouses left in Africa also had already been converted to the faith by the aid of Missionaries and cleansed by baptism. Therefore a remedy was needed by whose aid those wretched persons, whether carried abroad into slavery or left in their homeland without a spouse, would not lack matrimony even when perhaps there was no longer any place for the faculty of marrying granted by the Apostle; and since a new matrimony cannot be contracted while the bond of the prior matrimony remains, a remedy was needed by which the bond of the prior matrimony would certainly be dissolved even when the departure of the former spouse furnished no access to this dissolution.

And this indeed is the remedy which Gregory XIII, and afterward Urban VIII, judged should be applied in the Letters which we mentioned in the preceding Note. For in them there appears most expressly even the case in which there can be no place for the faculty given by the Apostle on the occasion of the departing infidel spouse: namely, when this departure is not only unknown but is supposed to be lacking, because the other spouse is also presented in the same Letters as already converted to the faith at the time when the former contracted new nuptials. These marriages, says Gregory, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will - namely, the will of adhering to their spouses, for otherwise a will of this kind would have been of no importance - and that they had also been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. But how can the second marriages be valid and firm unless the preceding bonds have been dissolved? These could not have been held dissolved by force of the Pauline concession, as is evident, because the necessary condition, namely, the departure of the prior infidel spouse, is lacking. Therefore, the removal of the prior bond must be ascribed to apostolic power, which, by force of that granted dispensation, possesses the authority of dissolving marriages of infidels not yet consummated after conversion to the faith but still merely ratified, and in fact dissolves them. And for precisely this reason Gregory XIII and afterward Urban VIII, when about to grant this dispensation, make express mention in the same Letters of this power, through these words: Therefore We, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. This observation would have been inserted altogether without purpose in the same Letters unless the exercise or use of this apostolic power intervened in the dispensation granted there.

That Pontius, having these Letters before his eyes, could affirm (l.c.) that it is not gathered from them that the Pontiff dissolved those marriages, but only declared that the case in which the infidel does not wish to cohabit with the faithful party is then verified, since, he says, for so long a time the faithful party is not sought by the infidel - words altogether ridiculous, since in the hypothesis interpellation is supposed impossible, and the Pontiff, as is evident from his own words, supposes that the infidel, being justly impeded, could not declare his will - this, I say, can be explained only by one who knows that Pontius, carried away by a blind passion for contradicting Sanchez, for Sanchez had affirmed that the Pontiff wished through those Letters to dissolve the marriages where necessary, not only in this place but very often and everywhere throughout the course of his work turned aside into paradoxes and absurd opinions. And it must plainly be regretted that this paradox of Pontius also crept into Cardinal Lambertinius's work On the Diocesan Synod (book 6, chapter 4, no. 3, and book 13, chapter 21, nos. 3-4). Hence it happened that this question, otherwise sufficiently simple, rather than being flooded there with some new light, as often occurs with other questions, was wrapped in denser darkness and entangled in inextricable difficulties. This happened also as regards the other case proposed above, to which we now proceed.

Another difficulty, therefore, occurs when interpellation of the infidel spouse becomes nearly impossible because it is unknown which of several wives whom a man actually has or formerly had is to be interpellated as legitimate. For although after the promulgation of the evangelical law only the first wife is legitimate by law, it sometimes becomes uncertain among barbarians, who readily repudiate wives, which is truly the first wife. For it happens that someone's first wife had previously married another man and was repudiated by him; yet the doubt does not thereby cease, since it is uncertain whether she was the legitimate spouse of the prior man, who perhaps had previously repudiated another wife. And for the same reason it is again not established whether the first wife of that former man was legitimate, since she herself had previously been repudiated by another husband, concerning whom it is doubtful for the same reasons whether she was his legitimate wife. And thus one must proceed almost to infinity without it being possible to establish anything certain.

This condition of affairs had for a long time kept the Bishops, Pastors, Missionaries, etc., of those regions very anxious. For when those who were converted to the faith were commanded to choose for themselves only one wife from those whom they either had or had had, they generally desired one who herself would embrace the faith, although she was not the first. Hence a twofold rock. First, to find the first wife who could be interpellated sometimes appeared not merely difficult but nearly impossible; and even if she could have been found, it was hard for the neophytes to dismiss the one whom they preferred, and therefore many were deterred from embracing the faith. On the other hand, how could the bond of a prior matrimony, if one existed, be believed dissolved, since either the former wife, who was unknown, could not be interpellated, or even though interpellated and consenting to cohabitation, she was rejected by the man as hated? Therefore, in neither case did the permission given by Paul to pass to other nuptials, and thus the dissolution of the prior bond, have place: not in the latter case, because there plainly lacked a cause for dismissing the first and legitimate wife, who would rather have wished to remain with her spouse; not in the former, because the departure of the first wife could not be established, and therefore it was no more licit to deliberate about new nuptials than when nothing can be learned concerning the life or death of a prior spouse.

When these things had been reported to the Apostolic See, St. Pius V, applying by Letters given August 2, 1571, a remedy not unlike that which Gregory XIII afterward applied, decreed that the converts could remain with that wife among the several whom they had married who was baptized together with the husband, even if she had been neither the first nor legitimate. Since therefore, he says, as We have learned, several wives are permitted to Indians while they remain in their infidelity, whom they repudiate even for the lightest causes, hence it has happened that those receiving baptism have been permitted to remain with that wife who is baptized together with the husband; and because it very often happens that she is not the first, whence both the ministers and the Bishops are tormented by most grave scruples, judging that this is not a true matrimony; but because it would be most harsh to separate them from the wives with whom those Indians received baptism, especially because it would be most difficult to find the first wife, therefore We, wishing with paternal affection to provide for the condition of the aforesaid Indians and to free the Bishops and ministers themselves from scruples of this kind, by Our own motion and from Our certain knowledge and from the plenitude of apostolic power, declare by apostolic authority through the tenor of the present Letters that the Indians thus baptized, as premised, and to be baptized in the future, are to remain with the wife who was and is baptized with them as with a legitimate wife, the others having been dismissed, and that a matrimony of this kind legitimately subsists between them, etc. Moreover, since these marriages could not legitimately subsist unless the bond of the prior marriage had been dissolved, and since the dissolution of the bond in the case cannot be attributed to the faculty granted by the Apostle Paul on account of the departure of the prior infidel wife, it is manifest, unless someone should prefer to say that St. Pius V dispensed so that the Indians could have two legitimate wives at the same time, that the Roman Pontiff, from the plenitude of power, wished to dissolve and remove that first bond, if any existed.

But behold, here also Pontius, for whom discourse concerning the Roman Pontiff dissolving these marriages by extraordinary power was like a dreadful apparition, and after Pontius Lambertinius (On the Synod, book 13, chapter 21, no. 4), twist this Constitution of St. Pius also into a mere dispensation, so that extrajudicial knowledge of the impossibility of interpellating the infidel spouse might be substituted for juridical interpellation. Thus they again introduce a ridiculous scene of a Pontiff who by apostolic authority dispenses from interpellating a spouse who cannot be interpellated, and who substitutes ignorance of whether that spouse wishes to depart for the spouse's departure required by the Apostle, as though these were one and the same thing; just as though, in relation to celebrating new nuptials, it were one and the same thing that a prior spouse is dead and that it is unknown whether the spouse is dead or still lives! The same is repeated in Lambertinius's Canonical Question 546, no. 37, where it is held to be one and the same that it is most difficult to find the first wife and that, according to the words of the Apostle, she departs although she was not interpellated!

In the latter place Lambertinius also adds an argument of this kind: In order that a dispensation concerning the consummated matrimony of infidels might be argued from the Brief of St. Pius V, it would have to be shown that the same Supreme Pontiff supposed that the first wife had been found, and, notwithstanding this, that the same Pontiff declared the validity of the matrimony with the second or third wife converted to the faith. But others will very easily deny this, since it is shown to be false without any difficulty. For, in order that a dispensation as regards the bond in preceding marriages of infidels may be argued, it suffices that these two things were established: first, that St. Pius decreed that the matrimony afterward contracted with another should be held legitimate by all and always; second, that it could nevertheless sometimes happen that the dissolution of the preceding conjugal bond could not be ascribed to the departure of the prior spouse according to the phrase of the Apostle.

But the first point is manifestly clear from the words of the Supreme Pontiff. As regards the second, who, I ask, or for what reason, would say it impossible that the first wife, if she should perhaps be found - St. Pius says this is most difficult, not impossible - would wish to adhere to her legitimate spouse, especially if she herself had already been converted to the faith or was prepared to be converted? Since these things are sufficiently manifest, we shall refrain from adding the several other things which could be brought forward upon the same matter.

It is useful to add only this concerning the present matter: it is to be desired that the little work of the Most Reverend Father Camillus Tarquini, Professor of Canon Law in this Roman College, should come forth into public light. In it, solidly according to his custom and most learnedly, he treats the question whether the Pauline privilege of which we spoke also has force when someone receives himself through baptism from infidelity into a Christian Communion which is nevertheless separated from the Catholic Church. For I do not doubt that, after considering the reasons brought forward by him, everyone will concede to his opinion, which holds the affirmative part.

⁴ This time, however, can be restricted or prolonged at the discretion of the judge, although one ought not readily to depart from that period. See Sanchez (book 2, disputation 24, no. 12) and Schmalzgrueber (book 3, title 32, no. 1). According to the truer and more common opinion, however, the two months must be computed not from the day of the nuptials but from the day on which the judge fixes the term. Sanchez (ibid., no. 21) and Schmalzgrueber (ibid., no. 3).

Nevertheless, one sins who contracts matrimony with the intention of entering Religion without warning the other party. - St. Ligorius, ibid.

§ 13. The Question of the Consummation of Matrimony · Ch. II, Art. I, I. On the Natural Institution of Matrimony

Even a consummated matrimony of infidels can be dissolved by divine concession when either spouse is converted to the Christian Faith ⁷, and the other refuses to cohabit peacefully with the converted spouse, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or attempts to pervert the faithful party ⁸. This is deduced from the Declaration of Innocent III cited by St. Ligorius, no. 956, etc. This divine concession is drawn from the words of the Apostle, 1 Corinthians 7:12, where he says: If any brother has an unbelieving wife and she consents to dwell with him, let him not dismiss her.... But if the unbeliever departs, let the unbeliever depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace. Innocent III explains the same more fully in chapter Quanto 7, On Divorce. - See more in case no. 903 and following ⁹.

⁷ Understand conversion through the reception of baptism. Through baptism, however, the conjugal bond with the infidel is not yet dissolved, but only when the convert, upon the refusal of the other to cohabit peacefully and without insult to the Creator, contracts other nuptials. Benedict XIV (Canonical Question 546, no. 6) acknowledges this doctrine to be common, indeed most common, among Theologians and Canonists. Hence, unless we suppose a typographical error, it can scarcely be understood why elsewhere (On the Synod, book 6, chapter 4, no. 4), although he again acknowledges it to be almost commonly received and defined by the Sacred Congregation of the Council in 1679 and 1680, he nevertheless says that MOST of the Doctors hold the contrary.

Hence two consequences. First, if the spouse who remained an infidel afterward comes to the faith and baptism before the other has entered a new matrimony, the latter is bound to receive the former and can be compelled to cohabit. Thus chapter Gaudemus 8, On Divorce; and Benedict XIV reports that this was again confirmed by the Sacred Congregation with the approval of the Pontiff on July 1, 1679, and April 13, 1680 (cited Canonical Question, no. 6). The reason is that the marriage, not yet dissolved, becomes ratified through the baptism of the other; indeed, it fully assumes the nature of a Sacrament, which, as has now been defined, cannot in Christian marriages be separated from the nature of a contract, just as when marriages are sanated in the root. Second, if the former marriage has already been dissolved through the new nuptials of the convert, it will be open also to the other party, for the bond of matrimony is indivisible, to enter other nuptials not only validly but also licitly, both if that party is converted to the faith and, as the more common opinion holds, even if the party perseveres in infidelity. - See Schmalzgrueber, book 4, title 19, nos. 32-33.

Since the opinion of the Doctors agrees that the converted spouse, if the other infidel refuses to cohabit, etc., can either make profession in Religion or receive sacred Orders, the marriage is restored anew in neither hypothesis even if the other is afterward converted, unless perhaps the former is still a novice or received only minor Orders. The reason is that through religious profession, and likewise through sacred Orders, a state incompatible with matrimony is assumed. Schmalzgrueber, book 4, title 19, no. 37; Sanchez, book 7, disputation 76, no. 6; De Justis, book 2, chapter 15, no. 40. Sanchez (l.c.) thinks that the same must be held if the convert emitted a vow of absolute chastity. And in the hypothesis of religious profession having been emitted, St. Bonaventure, Sanchez, etc., more truly affirm, as Maschat says (Institutes of Canon Law, book 4, title 19, no. 9), that the matrimony is dissolved; and the common opinion of the Theologians, as Sanchez says (l.c., no. 9), deduces this by similarity as follows. For if such force was granted by Christ to profession in Religion that it dissolves the bond of a ratified matrimony between the faithful, much more will it dissolve a matrimony consummated during infidelity, which is not ratified, from chapter Quanto 7, On Divorce. But in the hypothesis of only sacred Order having been received, or of a vow of absolute chastity having been emitted, since the bond of matrimony is not dissolved according to the common opinion, and since otherwise the spouse bound by these bonds cannot be restored without dispensation to the other spouse who may have converted, then, if the spouse first converted would not willingly admit dispensations and the other could live in the state of continence only with difficulty, it would be expedient to have recourse to a dispensation by which the Pontiff, as was said above, would break the bond of the prior matrimony.

⁸ If, however, the party who entered Religion delays profession beyond what is reasonable, wandering from one Religion to another within the period of novitiate, the judge can assign a peremptory time so that the party either remain in some Religion and, after completing the novitiate there, make profession, or return to the spouse and consummate the matrimony. - Sanchez, book 2, disputation 24, no. 9.

⁹ The danger of perversion has caused it to be the case that, although the infidel party consents to dwell peacefully with the faithful party, the infidel party is nevertheless sometimes not admitted to cohabitation unless also converted to the faith. In this matter Benedict XIV (On the Synod, book 13, chapter 21, no. 1) praises the opinion of Cabassutius, who, after Sanchez, concludes (Practice of Canon Law, part 3, chapter 23, no. 11) that the question must be determined from the circumstances of the cases and the customs of the regions.

Moreover, practice bears that in regions of infidels, for example, among the Chinese, Indians, etc., converts are permitted to cohabit with an infidel and also to pass to other nuptials according to the doctrine of Paul if the infidel either refuses to cohabit or does not consent to cohabit except with injury to the Creator. To this pertains chapter Gaudemus of Innocent III and the Declaration cited by Benedict XIV (l.c.). Among Christian nations, however, the practice has prevailed that cohabitation is not permitted with a party who obstinately adheres to an infidel sect, for example, the Jewish, although that party protests a willingness to cohabit peacefully. See Sanchez (book 7, disputation 73, no. 12), who rightly observes that in this case also those circumstances have place on account of which the Apostle taught that the convert can dismiss the infidel party and pass to other nuptials and is not to be obliged to lead a celibate life; for this, since it could be a grave yoke, could remove the convert from embracing the faith, indeed, contrary to the mind of the Apostle, would subject the convert to servitude under a matrimony contracted in infidelity. Concerning this Cabassutius (l.c.) writes of Jews living under pontifical dominion: Liberty is granted both to the converted spouse and to the obstinate spouse to bind themselves in other nuptials, but to the obstinate spouse not before the converted spouse has contracted another marriage.

The diversity of practice according to the diversity of places and circumstances is seen in the Decree of the Council of Lima (act 2, chapter 10), which Sixtus V confirmed by apostolic authority (in Pignatelli, Canonical Consultations, volume 4, consultation 189, final proposition). It reads thus: Concerning those who, joined in matrimony, are converted to the faith while the spouse still remains an infidel, provision was prudently made in the preceding Council that if the infidel shows a ready hope of conversion, the Christian should in no way pass to other nuptials, as is defined in the sacred Canons, but should await the gain of the spouse in Christ. But if the infidel delays conversion, yet is not pernicious to the baptized spouse by turning that spouse away from the faith or drawing that spouse into mortal sin, then the infidel is still to be awaited for a period of six months, being assiduously admonished meanwhile concerning conversion. But since both the danger to the recent convert must be guarded against, lest, if the infidel remains long in the bed, the convert perhaps lose the faith of Christ, and provision must be made for the convert's liberty, lest the convert be compelled to live celibate, therefore we decree that, after the space of six months has elapsed, the matter be referred to the Bishop, who, after the cause has been well examined, is to declare to the faithful party that there is the faculty of entering another matrimony.... But if he sees that there is no danger in cohabitation, he is to command the faithful party to await

the infidel, or even to counsel cohabitation if he understands it to be profitable, according to the counsel of the Apostle Paul. For the same law cannot be fixed for all converts, since various circumstances certainly occur and the condition of all infidels is not the same.

Tanquerey

Adolphe Tanquerey, S.S. — 5 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter I: On Marriage as Contract

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2° On the Dissolution of Ratified Marriage of the Faithful

Principle: The marriage of the faithful, ratified and not consummated, is dissolved by the solemn profession of either spouse in an approved religion, or by a dispensation granted by the Supreme Pontiff for a grave cause.

⁶ St. Thomas, Supplement, q. 61; Sanchez, l. II, disp. 18-23; Drouin, q. IV, c. 3, § 1; Billuart, diss. V, a. 2, § 4; Carriere, n. 302 sq.; Perrone, l. III, sect. 2, cap. 6, a.; Palmieri, th. 25; de Augustinis, th. 10; De Angelis, loc. cit., n. 12; Gasparri, nn. 1081-1092; Lehmkuhl, nn. 703-704; Ballerini P., nn. 476-488, ed. 3; Wernz, op. cit., nn. 690-700.

(A) The first part has been defined by Trent:¹ "If anyone shall say that a ratified marriage, not consummated, is not dissolved by the solemn profession of religion of either spouse, let him be anathema." It is further proved (a) from the express declarations of Alexander III (1180), and of Innocent III (1210), who writes:² "We, however, not wishing to decline from the footsteps of our predecessors, who, when consulted, responded that before marriage is consummated by carnal copula, it is lawful for either spouse, the other being left without being consulted, to pass to religion, so that from then on the other can legitimately be joined to another"; from which it is clear that this doctrine was received before the twelfth century, since the Supreme Pontiff appeals to his predecessors. (b) From the Code, can. 1119: "A non-consummated marriage between baptized persons, or between a baptized party and a non-baptized party, is dissolved both by the law itself through solemn religious profession, and through dispensation granted by the Apostolic See for a just cause, both parties asking or either one, even if the other is unwilling."

¹ Trent, sess. XXIV, can. 6.

² Decretal., lib. III, tit. 32, cap. 14.

It must be noted, however, that a ratified marriage is dissolved only at the time when solemn profession is emitted, not when someone enters religion or emits simple vows; hence the spouse remaining in the world contracts new nuptials neither licitly nor validly before the profession of the other. Moreover, it is not dissolved by a simple vow of chastity, nor by the reception of sacred order, or vows emitted in a Congregation not approved by the Holy See; but only by solemn profession, namely that which has been recognized as such by the Church; therefore not by simple profession, nor by simple vows emitted in the Society of Jesus. It is further required that the profession be made freely, after a probation of at least three years, and after canonical age has been attained, that is, after the twenty-first year has been completed; but since, from can. 542, a spouse is invalidly admitted to the novitiate during marriage, and, from can. 572, a profession is invalid if the novitiate was not valid, scarcely today can there be place for this case.

Formerly two months were granted to spouses for deliberating concerning entrance into religion. The Code did not renew this privilege, perhaps because, with solemn profession delayed until at least the fourth year after the beginning of the novitiate, the other spouse would be compelled longer to preserve continence. Thus A. Blat, Comment., lib. II, p. 11, cap. 2, p. 522; Noldin, n. 497; Marc-Gestermann, n. 1980, note 1. This can be confirmed from can. 1111: "From the very beginning of marriage each spouse has an equal right and duty, as regards the acts proper to conjugal life."

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(B) The latter part, although previously denied by some, today has become certain by the practice of the Church; for it is clear that, already from the time of Martin V (1417), the power of dissolving ratified marriages for grave reasons was exercised by many Pontiffs,¹ and is exercised even in our days, as is clear from the Acts of the Holy See, where each year some dispensations of this kind granted from ratified marriage are read. Now it is unlawful to say that the Roman Pontiffs usurped this power, especially since by so acting they would have inflicted injury on the sacrament and permitted adulteries. Therefore one must conclude with Benedict XIV:² "No question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing over a ratified and non-consummated marriage, since today the affirmative opinion is common among theologians and canonists, and has been received in practice, as is notorious." - See also can. 1119, reported above.

¹ Cf. St. Antoninus, in Sum. theol., p. III, t. I; Navarrus, Enchir., c. 22; Perrone, vol. III, p. 471, ed. 1861.

² Quaest. Canon., 479.

For the exercise of this power, two things are required: juridic proof of the non-consummation of the marriage, concerning which we shall speak in the Supplement; and a legitimate cause, such as the probable nullity of the marriage, the moral impossibility for the spouses of cohabiting together, fear of future scandal and adultery on the part of at least one of the spouses, a civil marriage already contracted by one party with a third person, etc.

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Controversy. It is disputed among theologians by what law a ratified marriage is dissolved by religious profession, namely whether by natural, divine, or ecclesiastical law.

(a) Some, with Bellarmine, have thought that this is done by divine natural law; for by natural law it is licit to pass from a less perfect state to a more perfect one, if this can be done without harm to another; but the state of religion is more perfect than the state of marriage, and no harm is otherwise inflicted on offspring, which does not exist, or on either spouse, since each is in an equal condition; therefore. Yet this opinion is commonly rejected; for it is false that it is licit from the law of nature to enter a more perfect state when an obligation already undertaken is opposed to this state; for although the Episcopate is a state more perfect than marriage, it is not lawful to receive it when the spouse is unwilling, nor is ratified marriage dissolved by its reception.

(b) Others, after Suarez, hold that this is done by ecclesiastical law; for the Church can, for a grave cause, dissolve a ratified marriage, as is clear from the things proved; now she has used this power with regard to religious profession; she herself has determined the solemnities of religious profession, and she herself has established that marriage is dissolved by solemn vows but not by simple vows. Yet this opinion is not well reconciled with the Tridentine canon cited above; for if it is of faith that marriage is dissolved by religious profession, this truth had to be revealed by Christ, and therefore the dissolution takes place by divine law, not simply ecclesiastical law.¹

¹ Nor does it help to say that the Tridentine canon is disciplinary, not dogmatic; for the truth proposed by the Council is not that the Church has the power of dissolving ratified marriage, but that marriage is really dissolved by religious profession: which truth indeed is of itself dogmatic, and must always be true; now if such a privilege had been granted by ecclesiastical law, it could be removed by the same authority, and what is declared in the canon would now become false. Cf. Palmieri, loc. cit.

(c) Hence there is a third opinion asserting, with Benedict XIV,² that the dissolution is made by divine law, insofar as Christ placed an exception to the law of indissolubility in favor of the religious state, just as we saw one placed for the marriage of unbelievers. For thus it is understood how Trent could define the matter as of faith, how likewise the Pontiffs who first spoke of this privilege supposed a practice already plainly established, and no protests then arose. The adversaries indeed object that the solemnity of religious profession was instituted by the Church herself; but the difficulty vanishes if it is admitted that marriage in this case is dissolved by law partly divine, partly ecclesiastical. The matter can be conceived thus: Christ determined only in common that marriage can be dissolved by the religious state, leaving to the Church the power of determining in species the conditions which constitute the religious state, and therefore dissolve ratified marriage; for thus it is understood how, with the Church so establishing, solemn vows, but not simple ones, produce this effect.

² Benedict XIV, quaest. can. et moral., q. 546.

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(d) Finally, a fourth opinion holds that marriage is dissolved by implicit divine law, or by that ministerial power by which the Church dispenses from a vow, an oath, and other impediments, on account of grave necessity. Namely, in the most ample power of the keys conferred by Christ is comprehended a ministerial or instrumental faculty of dispensing from certain obligations induced by divine law, when the spiritual utility of souls requires it. Now the obligation which results from the bond of ratified and non-consummated marriage, although it arises from divine law, is not so perfect that it cannot be dissolved in any way when a grave cause intervenes. This opinion is sufficiently probable, and sufficiently explains why marriage of this kind can be dissolved not only by religious profession, but also by dispensation of the Pontiff, although nothing concerning this matter is found explicitly in Scripture or primitive Tradition.¹

¹ For a fuller exposition of this opinion, see Billot, th. 44-45.

n. 746.

It is indeed objected that by these exceptions the indissolubility of marriage is destroyed; but undeservedly; for here there is question only of ratified marriage, and therefore the evils which follow from divorce on the part of the spouses and of offspring are not verified here; besides, the dissolution is made not by private authority, but by the Roman Pontiff after a long inquiry, if there is question of a particular case, and only for grave causes; but if there is question of the case of solemn profession, the few inconveniences which perhaps follow from this are compensated by the more excellent good of religious life, nor otherwise is it to be feared that there will be many who renounce pleasures in order to embrace the austerities of religion. Therefore by these few exceptions the indissolubility of marriage is not endangered.²

² Pisani, L'Eglise et le divorce, in the periodical Le Correspondant, t. 217, October 10, 1904, pp. 20-46.

Vermeersch, On Chastity

Arthur Vermeersch, S.J. — 21 passages

§ 13. The Question of the Consummation of Matrimony

n. 77.

The occasion for the question.

77. The connection and importance of the argument urge us to join the question of the consummation of matrimony to the question of impotence and sterility.

n. ¶511.

The received principle.

We proceed from a formula received in the Catholic schools when we say: Matrimony is consummated from the time when both spouses have been made one flesh, according to Genesis 2:24, which is also inculcated in 1 Corinthians 6:16: "They shall be two in one flesh." Now already from antiquity, according to the received opinion, as the commentary on chapter 1 of Genesis long ascribed to St. Thomas proves, spouses can become one flesh both by reason of carnal commingling and by reason of offspring. Therefore:

n. 78.

The most perfect consummation.

78. - 1. When, after ordinary copulation, a spermatozoon has penetrated the female ovum, the marriage has been consummated most fully. For then the spouses have become one flesh not only in the conjugal act but also in the new flesh composed from them. There is, in the strictest sense, the commingling of seeds which the ancients seem to require ¹.

¹ Compare Bucceroni, Institutiones theologiae moralis, at the end of vol. 4.

n. ¶512.

Moreover, offspring conceived explains very well why a marriage thus consummated becomes perfectly indissoluble.

n. ¶513.

Nevertheless, no one simultaneously requires both of these things, copulation and conception, for consummation ². And that requirement would be excessive is shown by the consequences themselves. For then the marriage would be consummated not from the hour of copulation but from the uncertain hour of conception; one who married a pregnant woman could not consummate the marriage before she gave birth; sterile persons would never consummate a marriage.

² Nevertheless, this seems to be required in Ecclesiastical Review, 1919, pp. 246-247.

n. ¶514.

2. The latter two consequences also show that it is not sufficient to temper the severity of this requirement by a presumption according to which copulation rightly performed is presumed fecund. For the presumption can have force neither with a wife who is married while pregnant, nor among sterile persons.

n. 79.

Whence does the perfect indissolubility of matrimony arise?

79. But at the same time we are taught that the absolute indissolubility of a consummated marriage must be formally derived from somewhere other than offspring. Whence, then? From the complete handing over of bodies through the conjugal act, almost as formerly, in Roman law, transfer of ownership was perfected not by agreement alone but by true or symbolic delivery. After the conjugal act, the matter is no longer intact: the husband has used the body of his wife, and has not only deposited something of his own in her but has communicated with her by that mysterious communication by which a certain physical assimilation of the wife to the husband is procured through conjugal relations ³.

³ Compare, in the work L'Honnêteté conjugale, the dissertation of Dr. Desplats, placed between the pastoral epistle of His Eminence Cardinal Mercier and our essay, La peur de l'enfant dans les classes dirigeantes. The work appeared in Italian at Turin under the title Matrimonio e Maltusianismo. Saggio religioso-medico-morale, the sole translation by the attorney Federico Marconsini.

n. 80.

The opinion of Sanchez.

80. On what is, as it were, the opposite side, Sanchez ⁴ sets forth as undoubted that it is required and sufficient for the consummation of matrimony "if the male semen, by whatever art, or with the female womb drawing it, should enter into the female vessel." According to this opinion, no copulation is required: an artificial, prodigious, or miraculous introduction of the husband's semen into the wife's vessel consummates the marriage. Sanchez cites very many authors in favor of this opinion, which pleases us because it is simple and coheres with the rationale just given for firmer indissolubility. For the reception of the male semen implies that use of the wife's body, that communication of the husband's substance with his wife.

⁴ De matrimonio, book 7, disp. 64, no. 15.

n. ¶515.

Today, however, I do not know whether it has no patrons.

n. 81.

The opinion of Lehmkuhl.

81. - 4. The consummation which, in the age of Sanchez, they placed in the reception of the male semen, Lehmkuhl ⁵ places in conception, at least partially, insofar as "if conception has taken place, however much something may be said to have been lacking in the very act of the conjunction of man and woman," he holds the marriage to be consummated, "for they have truly been made one flesh, since offspring is conceived from the flesh of the man and of the woman." Nevertheless, he likewise admits the other mode of consummation, through copulation.

⁵ Theologia moralis, vol. 2, no. 998. The same is also proved by Wernz, vol. 4, no. 432, note 51.

n. 82.

The opinion of several today.

82. - 5. Turning to copulation, as many as judge a woman without ovaries incapable of matrimony require, in order that a marriage may be consummated, copulation performed in such a manner that the concurrence of the male semen with the ovum can occur, the constitution of each person having been considered. Thus these authors, although they require copulation, formally attend to offspring, not indeed actually conceived but possible. "Spouses, by marital copulation, become one flesh not actually in offspring, but potentially in relation to offspring" ⁶.

⁶ Bucceroni, Institutiones theologiae moralis, vol. 4, p. 496.

n. ¶516.

We cannot approve this opinion, both because the general possibility of conception effects nothing toward the present consummation, and because it brings forward no rationale why a marriage should thereby become more indissoluble, and because its patrons ought logically to deny that a marriage is consummated through copulations which are foreseen to be necessarily sterile. We confess with His Eminence Cardinal Gasparri ⁷ that we do not see what the nature or perpetuity of the obstacle contributes.

⁷ De matrimonio, no. 777.

n. 83.

The present-day opinion of others.

83. - 6. Therefore, very many others today declare perfect copulation, that is, copulation performed with the effusion of true semen in the natural vessel of the woman, to be necessary and sufficient. They require copulation because it is the act to which matrimony is ordered; they are content with this copulation because "the commingling of seeds or blood among the ancient writers is matrimonial copulation" ⁸.

⁸ Cardinal Gasparri, ibid., no. 570.

n. ¶517.

For the commingling of seeds required by the ancients supposed in the woman only that pseudo-semen which, since it is not necessary for generation and is in no way communicated with the man, in truth has little bearing upon the cause: several of the ancients already did not require this emission of the woman except insofar as it might be essential. Moreover, from St. Thomas ⁹, we clearly have that spouses become one flesh through carnal commingling alone, without regard to offspring. "They shall be two, namely the man and the woman, in one flesh, that is, through carnal commingling they are made one flesh, and thus the members of one become the members of the other. From two there is made one in the act of generation." Compare no. 13.

⁹ In I ad Cor., chapter 6, verse 16.

n. 84.

The question of eunuchs.

84. Almost all deny that eunuchs have true semen, and therefore they deny that a marriage is consummated through copulation performed by eunuchs. We too deny this (at least when it concerns those eunuchs who have not been recently mutilated, since adults recently mutilated are not incapable of fecund copulation), but for a somewhat different reason: because those deprived of the testicles are also deprived of the internal secretion by which the energy of copulating with effusion is nourished, so that they are first deprived of satiating copulation and then of the very faculty of copulation.

n. ¶518.

Of one who has undergone vasectomy.

Wherefore, although we render the honor due to the common opinion, we doubt the conclusion by which adults who have undergone vasectomy are held actually impotent. For they, since they preserve internal secretion (unless, which is not yet established, it must perish latently), fully preserve their virile powers. They do indeed emit semen without spermatozoa. But are spermatozoa essential to consummation as they are to fecundation? This can be doubted. The rationale given above for the greater firmness of a consummated marriage is independent of every consideration of offspring or fecundation. Furthermore, several authors admit that a marriage is consummated by those who indeed have testicles but emit dead, and therefore useless, spermatozoa, or who emit aspermatic fluid (to which, therefore, the testicles contribute almost nothing); indeed, they commonly hold (Dr. Antonelli himself) ¹⁰ that those who have an obstructed vas deferens, so that communication with the urethra is suppressed, are only sterile and therefore capable of consummation. How do these differ from those who have a vas interrupted by section ¹¹? We submit these things to the judgment of wise men who may wish to examine the cause objectively.

¹⁰ Medicina pastoralis, vol. 2, no. 650.

¹¹ This is confirmed by the authority of an excellent surgeon, a professor at Louvain, who, after kindly writing for us a dissertation on vasectomy, concluded of his own accord that this section, which did not impede internal secretion, induced sterility but not impotence.

n. 85.

Of artificial fecundation.

85. Come now: since, in addition to true semen, they also require copulation, they say "without hesitation... that artificial fecundation properly so called (that is, without any copulation) does not consummate a marriage, even if offspring should follow from it" ¹².

¹² Cardinal Gasparri, op. cit., II, 1302.

n. 86.

Of emission at the opening.

86. There is greater doubt concerning semen which the husband places only at the opening of the vagina and which is received inward in such a manner that offspring could, or even did, arise. His Eminence Cardinal Gasparri denies consummation. But if, no other manner being available, intercourse of this kind is permitted to spouses, the rationale of copulation seems to us to be sufficiently preserved that, speaking according to this opinion, we would admit the consummation of the marriage.

n. 87.

Conclusion.

87. After the opinions have been proposed and weighed to some extent, if what we ourselves think must be added, we incline strongly toward the position which Sanchez defended with most authors of his age, so that we call a marriage consummated whenever the true semen of the husband has been received inwardly by the wife. This opinion is plain; it fits perfectly with the rationale why a consummated marriage is altogether indissoluble. But we do not perceive that the very introduction of the virile member, separated from effusion, contributes anything to the greater firmness of matrimony; and hence we are content, for the present effect, with effusion without copulation ¹³.

¹³ But where copulation has been absent, the reception of semen inwardly will have to be proved, not presumed.

Ch. II, Art. I, I. On the Natural Institution of Matrimony

n. 106.

Is it already indissoluble before consummation?

106. - But before the marriage has been consummated, or before both spouses have been made one flesh, can it be dissolved by mutual consent? Speaking not of the sacrament of matrimony but of that which is a mere contract, it seems to us that an indissolubility which takes its beginning from consent itself can be demonstrated with difficulty by natural reason alone. For until the spouses have been made one flesh, you would say that nothing irreparable has been done; a perfect restitution of the bodies remains possible. Thus, in a related argument, the material element of virginity is lost irreparably through the completed carnal act; but the formal element, or the purpose of virginity, if it has been revoked, even sinfully, can be restored by a new purpose according to the doctrine of St. Thomas. Compare below, no. 142, where virginity is treated.

n. ¶591.

On the copula theory.

Indeed, concerning the marriage of Christians itself it was long doubted in the Church whether, before copulation, it was perfect and indissoluble. And the Bolognese school, with Gratian (in Cause XVII, q. 2) and Master Roland (who afterwards became Alexander III), against the Parisian school defended the so-called "copula theory," according to which, before consummation, matrimony was neither a sacrament nor indissoluble. Freisen at one time favored this theory even in our own days ⁶. The fruit of the controversy was that the dissolution of a ratified and non-consummated marriage, both through solemn religious profession and through a dispensation granted by the Apostolic See for a just cause, became certain doctrine of the Church, confirmed by canon 1119 of the Code itself. This matter is treated in the Summa of St. Thomas, Supplementum, III, q. 42, art. 4.

⁶ In the first edition of his Historia Iuris Matrimonialis, written in German. Compare De Smet, De sponsalibus, etc., no. 98.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 4 passages

Vol. III, Pt. II, Tr. X, Ch. III, Art. II, § 1. On Perfect Divorce Or The Dissolution Of The Matrimonial Bond

n. 665.

665. Proposition 1. "A non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved with regard to the bond:

a) by the law itself through solemn religious profession;

b) by a dispensation of the Supreme Pontiff, provided that a just cause is present and both parties request it, or at least one of them, even if the other is unwilling."²⁵⁸

The first part of the proposition is defined by the Council of Trent:²⁵⁹ "If anyone says that a ratified, non-consummated matrimony is not dissolved by the solemn religious profession of one of the spouses, let him be anathema."

It is said: through solemn religious profession. Therefore matrimony is dissolved neither by entrance into religion, nor by simple profession,²⁶⁰ nor by a solemnized vow of chastity in the subdiaconate. Solemn profession is found in several ancient religious orders of men, for example, the Benedictines, Dominicans, Franciscans, and so forth; but indeed only in a few religious orders of women, for example, the Poor Clares, Dominican nuns of the Second Order, and so forth. Hence in practice it must be seen whether there is a profession which is recognized by the Church as solemn.

Since, however, according to the current discipline of the Church solemn vows are ordinarily not emitted until at least four years after entrance into religion, it follows that the spouse remaining in the world would have to wait for at least four years before being able to enter new nuptials. But because this is sometimes hard, when the case occurs permission is to be sought from the Holy See for solemn vows to be emitted immediately after the novitiate. Solemn profession does not dissolve a ratified matrimony unless it is joined with a vow of perfect chastity. Hence if in some military orders a solemn profession was indeed emitted, but with conjugal chastity only, or with a prohibition against proceeding to second nuptials, such a solemn profession did not dissolve a ratified matrimony.²⁶¹

A vow, as they say, solemnized in the reception of the subdiaconate likewise does not dissolve a preceding ratified matrimony (although it invalidates a subsequent matrimony, as will be said below). Concerning this matter John XXII²⁶² decreed: "Desiring to put an end to the ancient contention ... by the present edict we declare that, although a vow solemnized through the reception of sacred order, as regards impeding a matrimony to be contracted and invalidating it if contracted afterward, must be accounted efficacious according to the statutes of the canons, nevertheless, for dissolving one previously contracted, even if it has not been consummated through carnal intercourse, since we find this decreed neither by divine law nor by the sacred canons, it is to be accounted invalid."

²⁵⁸ Thus the Code of Canon Law, c. 1119.

²⁵⁹ Sess. 24, can. 6, De matrimonio (Denz., n. 976).

²⁶⁰ A simple vow of chastity or simple profession (even that of the Jesuits) does not dissolve a ratified matrimony. Thus Pius IX expressly decreed on January 25, 1861, saying: "A ratified and non-consummated matrimony is dissolved only by solemn profession of vows, but not by profession of simple vows." A few authors, for example, Pontius, Leurenius, Bouix, and Perrone (who, however, later corrected this error), falsely attributed the same force of dissolving matrimony to simple vows emitted in the Society of Jesus after two years from entrance.

²⁶¹ Cf. Feije, loc. cit., n. 515.

²⁶² Extravag., c. un., tit. 6, De voto.

n. 666.

666. By what law solemn religious profession dissolves a ratified matrimony is much disputed among authors. A few, for example, Habert and Collet, teach that this effect arises from natural law, that is, from the very nature of solemn profession; very many, for example, Suarez, Layman, Schmalzgrueber, Pirhing, Leitner, Gasparri, Wernz, De Smet, and others,²⁶³ teach that it arises from ecclesiastical law alone; almost all Thomists and several outsiders, for example, Valentia, Sanchez, and Benedict XIV,²⁶⁴ derive this effect from positive divine law. The reason for this last opinion is manifold:

a) "Before carnal intercourse there is only a spiritual bond between the spouses; but afterward there is also a carnal bond between them; and therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so before carnal intercourse it is dissolved through entrance into religion; because religion is a certain spiritual death, by which someone, dying to the world, lives to God." Thus St. Thomas.²⁶⁵ This comparison of profession with spiritual death occurs very frequently among the ancient authors.

b) Ratified matrimony, as a true sacrament, is indissoluble by divine law. Therefore it cannot be dissolved except through something which has the same sanction. Since, therefore, it is of faith that solemn religious profession dissolves a ratified matrimony, it is more fittingly said that this effect was granted to it also by divine law. This is confirmed: If solemn religious profession did not dissolve by divine law, but only by ecclesiastical law, then some Pope could decree that this effect should no longer belong to it.²⁶⁶ But this seems impossible because of the definition of the Council of Trent brought forward above, which is a dogmatic and not merely a disciplinary definition, as is now most commonly admitted.²⁶⁷

From c. 7, X 3, 31, theologians and canonists deduced that a two-month period was granted to spouses, within which they could deliberate upon entering religion, and therefore that they were not bound to render the conjugal debt.²⁶⁸ The Code of Canon Law is altogether silent concerning this two-month period; therefore, according to the current discipline, a spouse is bound immediately after matrimony has been duly contracted to render the conjugal debt to the other party reasonably requesting it.²⁶⁹

Moreover, in our times it can scarcely ever happen that someone lawfully enters matrimony with the intention of entering religion within two months; because the civil laws existing almost everywhere and prescribing civil matrimony do not permit divorce because of mere entrance into religion, and consequently grave inconveniences could easily arise for the party left in the world if someone first contracted matrimony and then shortly afterward entered religion. Moreover, according to the current discipline, no married person can be validly admitted to the novitiate without previous permission of the Holy See.²⁷⁰

²⁶³ Fahrner, Gesch. der Ehescheidung im kan. Recht, 292 ff., clearly sets forth the diverse opinions of the diverse authors.

²⁶⁴ Quaest. can. et mor., q. 546, n. 35.

²⁶⁵ Suppl., q. 61, a. 2.

²⁶⁶ Wernz-Vidal (Ius can., V, n. 626, note 47) attempts to prove that the Supreme Pontiff can truly remove this effect from solemn profession, citing a fact known to all: in France, Belgium, and other regions nuns no longer emit solemn profession. Therefore the Pope removed solemn profession in some orders, and a fortiori he can remove from solemn profession the force of dissolving a ratified matrimony. No one fails to see how weak this argument is. It is freely conceded that the Pope can suppress solemn profession in some orders, indeed can suppress some entire order, as, for example, Clement XIV did concerning the Society of Jesus; but it by no means follows from this that the Pope can indeed leave a truly solemn profession to some order and nevertheless remove from that profession the effect of dissolving a ratified matrimony. This is also evident from the following example: someone can extinguish a light entirely; but while the light exists, he cannot prevent the light from producing the effect of illuminating. Still weaker is the argument repeated a hundred times: the solemnity of a vow is from the institution of the Church, as Boniface VIII testifies; therefore the Church can freely change, indeed abolish, this solemnity. The response is: Certainly accidental solemnity is from the institution of the Church, but by no means essential solemnity. We have written at greater length concerning this matter in Commersches Jahrbuch, XXII, 55 ff.

²⁶⁷ Cf. Billot, De eccl. sacr., II, thesis 45, p. 415.

²⁶⁸ Cf. St. Thomas, Suppl., q. 62, a. 2, ad 2.

²⁶⁹ The Code of Canon Law, c. 1111, decrees concerning this matter: "Each spouse has from the very beginning of matrimony an equal right and duty as regards the acts proper to conjugal life."

²⁷⁰ Code of Canon Law, c. 542, n. 1.

n. 667.

667. You will ask: 1. If carnal intercourse was had between the betrothed before matrimony, but not yet after matrimony was duly contracted, does the privilege of dissolving the bond of the contracted matrimony through solemn profession remain? Affirmatively. The reason is that such a matrimony is truly ratified only and not consummated. This opinion seems to be placed beyond all doubt after Leo XIII (in 1892) abolished presumed matrimony, which was judged to be present when the betrothed, with marital affection, completed carnal intercourse.²⁷¹

2. Can solemn religious profession dissolve the bond of a matrimony which was indeed consummated in infidelity, but after the conversion of one or both spouses remained without carnal intercourse? Theoretically speaking, the affirmative opinion is truer and more ancient. St. Bonaventure²⁷² already taught it, and Dominic Soto,²⁷³ Sanchez,²⁷⁴ and others follow him. The reason is that the ratified matrimony of Christians, as a sacrament, constitutes a stronger bond than a consummated legitimate matrimony; which is plainly evident from the fact that, by the Pauline privilege, a subsequent ratified matrimony dissolves a preceding consummated legitimate matrimony. Now solemn religious profession dissolves the ratified matrimony of Christians. Therefore, a fortiori, it dissolves a consummated legitimate matrimony, according to the maxim of Roman Law: "If I conquer him who conquers you, much more do I conquer you."²⁷⁵

In practice, however, since a matter of great moment is involved and the proposed opinion is not certain, the Holy See is to be approached, which, according to the things said above, can dissolve the bond in marriages of this kind.²⁷⁶ It is certain that the bond of such a matrimony is not dissolved by the reception of sacred orders.

²⁷¹ Cf. Wernz-Vidal, Ius can., V, n. 628.

²⁷² In IV, dist. 39, a. 2, q. 2 (Ad Aquas Claras, 1899, IV, 839 f.).

²⁷³ In IV, dist. 39, q. un., a. 4.

²⁷⁴ De matrimonii sacramento, l. 7, disp. 76, nn. 8-10, where he says that this opinion is altogether to be held.

²⁷⁵ L. 14, § 3, D. 44, 3.

²⁷⁶ Cf. Fahrner, Gesch. der Ehescheidung, 313 f.

n. 669.

669. Scholion. On the manner of petitioning for a dispensation over a non-consummated matrimony. When there is question of a dispensation to be petitioned over a non-consummated matrimony, it is customary to proceed in the following manner: The spouse who petitions for the dissolution of the non-consummated matrimony is to present his petition to the bishop (through the pastor), with an accurate statement of the fact and of the motives for the dispensation to be petitioned. After the bishop has extrajudicially²⁸⁰ investigated all things to be known or necessary to know, he sends the received petition to the Sacred Congregation of the Sacraments. (The bishops of missions, however, must send the petition to the Sacred Congregation for the Propagation of the Faith.)

Upon receiving this extrajudicial information, the Sacred Congregation is accustomed to delegate the bishop or an investigating judge to make the processual informations. How these processual informations are to be made is indicated in the Decree concerning processes in causes of dispensation over a ratified, non-consummated matrimony issued by the Sacred Congregation of the Sacraments on May 7, 1923,²⁸¹ for example, concerning the defender of the bond, bodily inspection, testimony of the seventh hand, and so forth.

The object of this information is twofold: the verification of the motives for dispensation and the proof of the non-consummation of the matrimony. To verify the motives for dispensation is not so difficult; on the contrary, it is sometimes most difficult to prove with certainty the non-consummation of the matrimony. A dispensation is never granted unless it is morally certain that the matrimony has not been consummated.

Canonists are accustomed to distinguish three cases: 1. non-consummation of a matrimony "constrained by time," that is, if the spouses, after the matrimony was celebrated, never cohabited or remained secretly in the same place; 2. non-consummation of a matrimony "with intercourse not attempted," that is, when the spouses indeed cohabited in the same house, but never attempted to use matrimony; 3. non-consummation of a matrimony "with intercourse attempted," that is, if the spouses also attempted to use matrimony, but were unable to complete this, for example, because of impotence. The fact of the non-consummation of the matrimony is to be proved by sworn witnesses and by indications not doubtful, for example, by bodily inspection.

An example of non-consummation "constrained by time" is furnished by the Nicosian cause of January 19, 1889, where the husband's mother, immediately when the spouses went out from the church after the matrimony had been celebrated, carried the husband off by force; nor did the spouses ever meet afterward.²⁸² An example of non-consummation "with intercourse not attempted" is furnished by the Leopolitan cause, which had been dismissed three times and obtained the requested dispensation only on the fourth occasion. Behold the summary of the case: A certain count married a countess who was already pregnant from an illicit love; for a sufficiently long time the spouses cohabited, but both the husband and the wife swore that they had never consummated the matrimony. At length they obtained a dispensation over the ratified and non-consummated matrimony.²⁸³ An example of the third case, namely, non-consummation of a matrimony "with intercourse attempted," is furnished by all cases in which a matrimony is dissolved because of the impediment of impotence.²⁸⁴

After the bishop has completed all the informations and sent them to the Sacred Congregation of the Sacraments, the Most Eminent Cardinals of this Congregation, after hearing the opinions of the consultors, decree whether the dispensation over the ratified matrimony is to be recommended to the Most Holy Father or not. If they decree affirmatively, the secretary of the Congregation proposes the case to the Supreme Pontiff, who is then accustomed to grant the requested dispensation. From all these things it is evident how great is the diligence employed by the Roman Curia before it dissolves the bond of a ratified and non-consummated matrimony.

²⁸⁰ Cf. the Code of Canon Law, c. 1963. If the bishop wished to proceed judicially without a special delegation of the Holy See, the whole process would be null (cf. the Piscian cause, November 24, 1906, in Analecta ecclesiastica XIV [1906], 441). According to the present practice, the prior judicial inquiry concerning the fact of non-consummation pertains to a single investigating judge, to whom the Sacred Congregation of the Sacraments has committed this inquiry. Code of Canon Law, c. 1966.

²⁸¹ Acta Ap. Sed. XV, 389 ff.

²⁸² Cf. Leitner, Lehrb. des kirchl. Eherechtes, 592.

²⁸³ Cf. Analecta ecclesiastica IV (1896), 264.

²⁸⁴ See the two cases related in Analecta ecclesiastica III (1895), 159-160.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 5 passages

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Art. III, § 2, Or On Indissolubility

n. ¶1978.

The INDISSOLUBILITY of matrimony is one thing as regards the bond, another as regards bed and cohabitation. The former belongs to the essence of matrimony, the latter to the offices of spouses. Here only the former must be treated.

Principles. I. Matrimony duly entered into is so indissoluble that it can NEVER be DISSOLVED through divorce as regards the bond. It is of faith from Trent (sess. 24, can. 5 and 7). For "the perpetual and indissoluble bond of matrimony the first parent of the human race, by the instinct of the divine Spirit, pronounced, when he said: This now is bone of my bones and flesh of my flesh: wherefore a man shall leave his father and mother, and shall adhere to his wife, and they shall be two in one flesh."⁹ But the "firmness" of this bond, "pronounced by Adam so long before, Christ the Lord confirmed by these words: What therefore God has joined, let not man separate."¹⁰

To the Hebrews indeed, by divine dispensation, the faculty of a bill of repudiation was made, by which the bond of matrimony, in certain circumstances, could be dissolved (Deut. c. 24); but "Jesus Christ restored it to its primeval state, namely to indissolubility, not by establishing a new law, but only by removing the old indulgence, or dispensation conceded over the aforesaid indissolubility."¹¹

But this indissolubility arises from NATURAL LAW itself, at least secondary, because it is necessary for the education of offspring that parents perpetually devote themselves to its good. Thus most commonly the Authors, led by St. Thomas.¹² It is also clear from condemned proposition 67 of the Syllabus: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority." - Hence, "what a mass of evil DIVORCES contain in themselves, it scarcely needs to be said. For by reason of them marital covenants are made changeable, mutual benevolence is weakened, pernicious incentives are supplied to infidelity; harm is done to the protection and instruction of children; occasion is furnished for tearing apart domestic societies; seeds of discords among families are scattered; the dignity of women is diminished and depressed, who come into danger lest, after they have served the lust of men, they be held as abandoned."¹³

But, although matrimony of itself is indissoluble, nevertheless in certain cases it admits dissolution of the bond; wherefore diverse degrees of indissolubility can be distinguished, as will be clear from what is soon to be said.

n. ¶1979.

II. Matrimony of the faithful RATIFIED and CONSUMMATED can never by any reason be dissolved as regards the bond, except THROUGH THE DEATH of either spouse. - Concerning this especially that word of the Apostle avails: "The woman is bound by the law as long as her husband lives." And Our Most Holy Lord Pope LEO XIII defined: "To dissolve the bond of marriage between Christians ratified and consummated is in the power of no one."¹⁴ The practice of the Church is added, which has never dispensed in matrimony of this sort.

n. ¶1980.

III. Legitimate matrimony of INFIDELS, even if it has been consummated, CAN BE DISSOLVED as regards the bond, in the case which they call that of the Apostle: namely if, with one spouse converted to the faith, the other refuses to be converted, or at least does not wish to cohabit without contumely of the Creator. - It is a privilege conceded by Christ the Lord in favor of the faith, as is clear from the testimony of Paul saying: "But if the infidel departs, let him depart; for the brother or sister is not subject to servitude in such cases" (1 Cor. 7:15).

Various things on this point occur to be OBSERVED:

From a threefold cause the convert can pass to other nuptials: 1) if the infidel refuses to dwell with him; 2) if he wishes to dwell, but not except with injury of the Creator, e.g. by retaining concubines;¹⁵ 3) if he wishes to draw him into mortal sin.¹⁶ But the convert can enjoy this privilege, even if the infidel spouse consented to cohabit peacefully for some time, indeed for many years, and afterward, with will changed, no longer wishes to do this. Thus from the Decree of the Holy Office, 5 Aug. 1759.¹⁷
The convert to the faith cannot use the aforesaid privilege unless there precedes an interpellation of the infidel spouse, whether he wishes to be converted to the faith, or at least to cohabit without contumely of the Creator.¹⁸ - This twofold interpellation, which must be made after Baptism, is required not only that new nuptials can be entered into licitly, but also validly: thus from the declaration of the S. C. de Propaganda Fide, 5 March 1816.¹⁹ But if interpellation is impossible or of the greatest difficulty, the Supreme Pontiff customarily grants an Indult, so that, it having been omitted, the convert can contract a new matrimony.²⁰ But indults of this sort, conceded either for various infidel regions or to Apostolic Vicars for a certain number of cases, cannot be extended to other regions or to other cases, unless recourse has been made to the Holy See.²¹ The Church then dispenses from the rigor of the interpellation, so that the convert is bound only to interpellate the infidel spouse whether he wishes to be converted to the faith; the other being omitted, namely whether at least he wishes to cohabit peacefully.²² This dispensation is more easily conceded in those places where a law prevails forbidding the faithful to cohabit with infidels, since then there is given a presumption of law concerning the danger of perversion to be undergone (cf. n. 448).
The bond of marriage is dissolved only then when the convert contracts a new matrimony. This is clear from the Decree of the Holy Office, 5 Aug. 1759.²³ Hence 1) if the infidel, after hearing the interpellation and giving a negative response, afterward embraces the faith before the other converted spouse has contracted new nuptials, the matrimony can no longer be dissolved by force of the Pauline privilege, but becomes altogether ratified. 2) If the first convert meanwhile has received sacred Orders, he cannot return to the spouse now converted, because the use of matrimony is no longer licit to him; for, after the negative response was received, he used his right by choosing a new state. But neither can the second convert enter a new marriage, because the first matrimony endures: unless the spouse has emitted solemn vows, as will be said below (n. 1981).

IT IS ASKED. Whether the Supreme Pontiff CAN DISPENSE over matrimony entered in infidelity, when ONE PARTY or BOTH are converted to the faith?

Resp. Dist. 1. If the matrimony after the Baptism of both has been consummated, it has become altogether indissoluble, and therefore a dispensation cannot be given.

If the matrimony has never been consummated, the Pope can dispense, as in ratified matrimony of Christians, concerning which we shall speak soon. - 3. If the matrimony was consummated only in infidelity, it is disputed. Some, among whom is St. Alphonsus,¹ whom we follow, affirm it, and they seek the reason from the Constitution Romani Pontificis issued by St. Pius V,² and from the Constitution Quoniam saepe contingit of Gregory XIII;³ through which Constitutions the aforesaid Pontiffs are said to have dispensed over such a matrimony.⁴ Others, however, deny it, from the fact that they judge the said Constitutions must be understood of dispensation from interpellation to be made, but not from the bond of marriage.⁵

Note. Only the baptized can enjoy the Pauline privilege, but not catechumens.⁶ Nor can that faithful person enjoy it who, after obtaining pontifical dispensation over the impediment of disparity of cult, contracted matrimony with an infidel, even if this one does not wish to cohabit peacefully. S. C. Off., 4 July 1855.⁷ But whether the privilege is to be extended to those who, by receiving Baptism validly, pass to some Christian sect, but not to the Catholic Church, is freely disputed.

n. ¶1981.

IV. Matrimony RATIFIED, but NOT CONSUMMATED, is dissolved by the very fact THROUGH SOLEMN PROFESSION of Religion by either spouse. - It is of faith from Trent (sess. 24, can. 6), affirming that this privilege was conceded by Christ the Lord in favor of the Religious State. Nevertheless Profession would be illicit "if matrimony were necessary for legitimating offspring, or for repairing scandal or the honor of the bride; for then the man could not become a Religious by leaving the bride, who on account of infamy would no longer be able to enter nuptials."⁸

But that the spouses may be able to use the aforesaid privilege, there is conceded to them a two-month period from the celebration of matrimony, within which time they are not bound to render the conjugal debt. And indeed each spouse can enjoy this concession, although he does not have the mind of entering Religion: for he uses his own right. But if, after the two-month period has already passed and the matrimony has not been consummated, one, with the other contradicting, embraces the religious state and emits vows: his profession is indeed illicit, but not invalid; wherefore in this case also the bond of matrimony is dissolved. - Nevertheless he would sin who, the counterpart not having been forewarned, should enter matrimony wishing to enter Religion; for besides other inconveniences which can most easily arise from such a manner of acting, the abandoned spouse would be bound to wait for his solemn profession until she should again enjoy the liberty of marrying.⁹

For the rest, this case is very rare, especially because civil laws, in many places, impede spouses from having recourse to the use of the privilege.

n. ¶1982.

V. Matrimony RATIFIED, but NOT CONSUMMATED, can, on account of a most grave cause, be dissolved through Pontifical DISPENSATION. - Thus commonly today Theologians and Canonists. This is clear especially from the continued practice of several centuries, at least after Martin V;¹⁰ nor in our times are examples of a dispensation of this sort rare.¹¹

The Supreme Pontiff remits the cause for dispensing to the S. Congregation of the Council to be weighed; and for the most part a cause is judged to be present, if the matrimony is likely invalid, without however its nullity being able to be sufficiently proved, and if otherwise it is plainly established that it was not consummated.¹²

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 7 passages

Vol. II, Treatise on Matrimony, Ch. III, Art. II, Namely, On Its Unity and Firmness, § II. On the Firmness of Matrimony

n. ¶1.

A twofold firmness of Matrimony is distinguished: for one regards the bond, the other the bed.

n. ¶2.

Point I. On the Firmness of Matrimony Insofar as It Regards the Bond.

n. ¶1550.

1550. - Matrimony is indissoluble, i.e. once Matrimony has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. It is proved: 1° from the words of Christ⁴: Therefore now they are not two, but one flesh. What therefore God has joined, let not man separate. 2° From the words of the divine Paul⁵: But to those who are joined in Matrimony I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, that she remain unmarried, or be reconciled to her husband. And let not the man dismiss his wife. 3° From Trent.¹ Cf. n. 456. 9°, and n. 1053. q. 2°.

n. ¶1551.

1551. - Nevertheless a threefold case is to be excepted; for:

1° Ratified and non-consummated Matrimony of Christians can be dissolved, for a most grave cause, by dispensation of the Pope, from power divinely conceded to him. This is clear from this, that the Supreme Pontiffs have already very many times used this power, as can be seen in the illustrious Feije.² Nevertheless dispensation is not granted unless full proof is exhibited to the Holy See that the Matrimony has not been consummated, and sufficient causes are alleged. - The Acta³ hand down what particular causes today are held sufficient. But the consent of the other party is not needed. - Non-consummation is to be proved judicially, yet only summarily. On this matter the Collectanea juris missionis⁴ will usefully be consulted.

2° Ratified and non-consummated Matrimony of the faithful can be dissolved by solemn religious profession⁵ of one spouse entering Religion within the first two months, and this from a special privilege conceded by Christ and declared by the Church.⁶ Cf. also the things to be said in this number under 3°. 9.

I said: within the first two months. Namely, that the spouses may deliberate concerning the use of this privilege, the two months after the nuptials are conceded to them by the Law itself⁷ (it can be prolonged by the judge, the cause being known), during which time they are not obliged to render the debt, provided nevertheless that Matrimony perhaps is not necessary for repairing scandal or the honor of the bride.⁸ - Fornication had between the betrothed persons before the celebration of Matrimony does not impede this privilege, if nothing else obstructs. - Nevertheless he sins in kind who contracts Matrimony with the intention of entering Religion, without warning the other party.⁹

See several other things pertaining here, if you like, in the illustrious Feije.

3° Even consummated Matrimony of infidels¹ can be dissolved from divine concession when one of the spouses is converted to the Christian Faith² through the reception of Baptism, and the other, having been interrogated, refuses peacefully to cohabit with that one, or does not cohabit except with injury of the Creator and contempt of the Christian Religion, or applies an attempt to pervert the faithful party. This is deduced from the Declaration of Innocent III.³ But this divine concession is drawn from the words of the Apostle⁴: If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her; ... but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such things: but God has called us in peace.

Many decrees and decisions⁵ of the Supreme Pontiffs and of the Sacred Congregations exist on this matter. From these with the theologians we conclude:

1. (a) When, after true Matrimony entered in the infidelity of each party, one party or each is converted and baptized, the Matrimony remains valid, and there is no need of new consent. - (b) If there was not a true Matrimony between them, the converted person can enter Matrimony either with that same person, but first baptized and (as regards liceity) Catholic, or with any other baptized and Catholic person, with mutual consent first offered and with those things observed which elsewhere we shall set forth concerning clandestinity.

2. If an infidel has several women, or respectively men, then either after conversion he does not remember which one he first took, and he can, mutual consent first having been offered in due form, retain one of those with whom he truly wished to be joined in Matrimony; or he remembers which one he first took, in which case apply to this one what was said under 1. (a). Yet in this hypothesis there can be place for the case of the Apostle. - But if an infidel, having several women, entered true Matrimony with none, after conversion he can contract with any baptized and Catholic woman, with mutual consent having been offered in due form.

3. When one party has been converted and baptized, the unbelieving one is to be interrogated whether that one wishes either also to be converted to the Faith, or at least to cohabit without contumely of the Creator. If the unbelieving one refuses to do either, or after cohabitation changes mind, or departs without fault of the faithful one (such as, e.g., adultery of this person after Baptism would be [see under 6]), this faithful one will be able to enter a new Matrimony. - But that the unbelieving person can truly be said to wish to cohabit without contumely of the Creator, it is necessary that he not draw the converted party to mortal sin; that he desist from concubinage in which, e.g., he was already living before the conversion of the other party; that he not bring troubles upon the Religion of the converted person or the Catholic education of offspring, etc.¹

But Matrimony entered in infidelity is not dissolved except at the very moment in which another valid Matrimony is contracted.

4. The faithful party cannot, without dispensation, validly enter a new Matrimony except with a party already baptized; otherwise there would be present the diriment impediment of disparity of cult, from which Bishops, by force of faculties Form D. n. 3 (T. I. p. LXXIV.), cannot dispense, and the Holy See does not dispense except for most grave causes.² Besides, that a new Matrimony be licitly entered, it must be contracted with a Catholic woman. By dispensation, indeed, it could licitly be contracted with a non-Catholic, but concerning this dispensation also what was said around disparity of cult is valid.

But when a faithful person by dispensation has contracted Matrimony with an infidel, and that one thereafter refuses to cohabit peacefully and without contumely of the Creator, Kenrick³ thinks that there is place for the case of the Apostle; but the contrary is certain from the Holy Office, June 14, 1708; August 1, 1759, to 4; year 1854, Dub. II, to 2; August 21, 1878.

5. The interrogation of the infidel:

a) Is altogether necessary (even if in reality it could not be made or would be useless), and that one's response, with a competent term fixed for the same, must be had, so that one can proceed to new nuptials, unless dispensation has been made by the Holy See, or among us, in the case set out p. LXX. 11, by the Bishop. Yet Bishops will be permitted to use this faculty only according to the norm of the Brief Populis of Gregory XIII. In this case it suffices to interrogate concerning the will of conversion.¹

b) It is to be made: in the presence of two witnesses; by the converted person himself or by another in his name, with the Ordinary intervening; the purpose of the converted person being notified (in the case in which the unbelieving person is going to refuse both conversion and cohabitation without injury of the Creator) either of passing to other nuptials, or, if this is the person's intention, of entering Religion, receiving Sacred Orders, or living in celibacy.²

c) Dispensation from the interrogation can be obtained from the Holy See as often as the unbelieving person, after being interrogated, has not responded within the time prefixed, or cannot be interrogated; for instance because it is unknown where that one is living, whether still alive, or because it is judged morally impossible that due interrogation should reach that one, or because from the interrogation most grave inconveniences are feared. But concerning these things it must be clear by summary process, the omission of which nevertheless renders the nuptials only illicit, if it is clear to the delegate for dispensing concerning the circumstances rendering interrogation impossible or difficult or useless.³

d) If a new Matrimony with a faithful person, the interrogation having been omitted or the response not having been received, had been celebrated without permission of the Holy See, this See alone could define whether one may remain in it.⁴

e) The interrogation is to be made (or dispensation from it sought) after Baptism,⁵ and it cannot be made before Baptism except for a grave cause and with previous permission of the Holy See.⁶

6. The privilege of the Faith remains to the converted party, even if because of adultery or another criminal cause posited by that party before conversion, the unbelieving one denies cohabitation; for crimes committed before Baptism can never be objected.

But adultery committed in infidelity by the party who, having been interrogated, wishes indeed to cohabit without injury of the Creator, but not to be converted, does not furnish to the converted person the faculty of a new marriage; nevertheless, in that case this converted person is not held to cohabit with the unbeliever, although asking pardon, as will be clear from things to be said n. 1552. III. under 3°.¹

7. After a new Matrimony has been entered by the faithful person, the unbelieving party, if thereafter also converted, can contract Matrimony with another Catholic. - But whether, if the person remains an unbeliever, he can enter a new Matrimony with another, even an unbeliever, is disputed.² "Today," says Feije, "the common doctrine is that in this case the unbeliever enters Matrimony with another unbeliever both validly and licitly."

8. But if the faithful person has not entered a new Matrimony, the unbelieving one invalidly marries another, nor can Baptism be conferred upon that one if afterwards converted, unless, with adulterous bonds cast off, the person has separated from the new party. Holy Office, January 23, 1805. And this is true even if this new party also is converted, and the prior spouse consents.

9. The converted person who has not entered a new Matrimony cannot after the conversion of the other party enter Matrimony with another; indeed from charity³ he is held to return to the other party if otherwise this person's conversion would be endangered. Is he also held from justice? It is disputed.⁴

But what if the other party is converted after the party first converted has either professed Religion, or received Sacred Orders, or even only vowed perpetual chastity?

Resp. Without pontifical dispensation, or, if among us there were question of only the simple vow of chastity, without dispensation of the Bishop, he cannot return to the other party.

Note. - If among us one of the three cases occurs in which, according to the things said in this number, Matrimony can be dissolved, prudence will require that, before the free party pass to other nuptials, civil divorce be obtained. (6), p. 394.

n. ¶3.

Point II. On the Firmness of Matrimony Insofar as It Regards the Bed, and On Divorce from the Bed.

n. ¶1552.

1552. Principles. - I. By reason of the Matrimonial bond spouses are held to cohabit together and to lead a social life. The reason is drawn from the very definition of Matrimony.¹

II. Nevertheless divorce, or separation from bed or habitation, can be made for grave causes, while the conjugal bond remains nonetheless, so that neither party can enter another Matrimony before the death of the other. This is declared by Trent.²

III. Causes giving honor to a divorce of this kind are: mutual consent, grave danger of soul or body, and adultery or heresy of either party (concerning which see n. 1521. 10°); you will understand these causes thus for practice.

1° Mutual consent: namely, each spouse together can renounce his or her proper right as regards the bed, whether for a time or perpetually, provided that, mature deliberation and long experience having been premitted, it is clear that the danger of incontinence is absent, and they are separated from bed. Likewise they can be separated even as regards habitation, whether for a time on account of business, or perpetually on account of a desire for a more perfect life; this desire can be fulfilled in two ways, namely either by the reception of Sacred Orders (concerning which mode see n. 1521. 10°), or by entrance into Religion. Concerning this note that it is necessary that the other party also enter a monastery and there emit regular profession, unless perhaps already of advanced age and immune from every suspicion of incontinence; for then it suffices if the person bind himself or herself by perpetual simple vow of chastity (before an ecclesiastical Superior and witnesses). Except if pontifical dispensation frees from this vow.³

Can spouses by mutual consent enter a Congregation in which only simple vows, yet of themselves perpetual, are emitted? - I think that, prudence being observed in individual cases, nothing obstructs; for even while remaining in the world both can vow continence.

2° Grave danger of soul, if danger of perversion in one from the cause of the other is present; or of body, if danger of life or mutilation is imminent, or if cohabitation on the part of one toward the other is made so troublesome that it is rendered morally impossible. This would happen if a spouse were compelled to suffer relatively grave or frequent cruelties, or if the wife were expelled without cause.⁴

3° Adultery of either party, namely such that it is: 1° morally¹ certain; 2° voluntary, and not perpetrated from violence inflicted;² 3° not condoned either expressly or implicitly, e.g. by the conjugal act, or by other signs, exhibited by the innocent party knowing and remembering the adultery (for the internal forum, with the mind of condoning);³ 4° not mutual, because then compensation would exist;⁴ 5° as St. Alphonsus thinks more probably, consummated;⁵ 6° committed without the consent of the other party.⁶ - This is clear from the words of Christ⁷: He who shall dismiss his wife, except for the cause of fornication, makes her commit adultery, etc. But what is licit for the man ought by the same reason to be licit also for the woman.

Observe from the more common and at least extrinsically more probable opinion of the Doctors that under the name of adultery here comes any division of the flesh, even if it does not have the character of adultery properly so called, of which kind is sodomy and bestiality.⁸

n. ¶1553.

1553. Questions. - Quaer. 1° Is a man, when the adultery of his wife is known, held to dismiss her?

Resp. 1° It is certain that he is not held by reason of adultery, because divorce was conceded in favor of the innocent party, not for his punishment. - Thus commonly.⁹

Resp. 2° Sometimes the man can be held to dismiss an adulterous wife by reason of fraternal correction or avoiding scandal, and say the same of the wife, if founded hope of amendment is present and the husband can be dismissed without grave inconvenience; but this former case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal or another grave inconvenience to be feared from separation can excuse. Besides, the wife cast out would be exposed to greater danger, at least for the most part. But the latter case will be most rare.¹⁰

Quaer. 2° Once divorce has been made, can the innocent party compel the other to return to himself or herself?

Resp. 1° Affirmatively, if there is question of non-juridical separation, because this is not strengthened by sentence of the judge.

Resp. 2° Affirmatively, more probably, even in the very case of juridical separation. The reason is because the sentence of juridical separation is borne in favor of the innocent party, and therefore does not take away the right of recalling the other; nor for this is a new sentence of the judge needed. Nevertheless an adulterous woman is not to be compelled to return as often as she can reasonably fear that she will be treated harshly, bitterly, or even cruelly.¹

Nevertheless one must observe:

1) Although after divorce juridically made, according to the common doctrine, the innocent party can, even against the will of the adulterous party, enter Religion or receive Sacred Orders, nevertheless this is not conceded to the adulterer dismissed; who therefore can neither enter Religion nor be initiated in Sacred Orders unless the innocent party either expressly consents, or has already assumed an irrevocable state; and if the adulterer were to enter Religion, he could be recalled by the innocent party even after profession.² Nevertheless St. Alphonsus³ admonishes that tacit consent also suffices for this, namely if the innocent party knows this and does not contradict when he or she can; nevertheless in the case he or she is not held either to enter Religion or to bind himself or herself by a vow of chastity. St. Alphonsus concedes this very thing to the guilty party when the innocent party, having been asked, was unwilling to admit reconciliation, or even if the innocent party has not recalled the guilty party after two years have already elapsed.⁴

2) "If divorce has been made by civil authority" as regards the bond, "the spouses renewing domestic intercourse, without new nuptials, will be liable to the penalties of adultery. But this can be asked: whether, for escaping the penalties of the law and recovering rights, it is licit to give consent again to Matrimony. It seems licit before the priest to refer to consent once given, so that he can testify concerning the Matrimony; but the consent itself must not be renewed, since it is the form of the Sacrament; for the rest, words can be used in a broad sense for satisfying the law. While care is employed that civil testimony be had concerning the Matrimony, caution must be taken that no sacred rites be performed again, or that anything be done by which favor is given to the error of a bond dissolved." Thus Kenrick.⁵

Quaer. 3° Once juridical separation has been made on account of adultery, is the innocent spouse held to return to the other party recalling him or her, if he or she afterwards has also fallen?

Resp. Negatively, more probably. The reason is because the first adulterer, by the sentence of the judge, was already entirely stripped of every right toward the innocent party.¹

Quaer. 4° Can divorce be made by private authority?

Resp. 1° Affirmatively as regards the bed, if a grave cause underlies, as was said above; and specifically by reason of adultery, even occult adultery, because the rights of Matrimony can be denied perpetually to the unfaithful spouse.

Resp. 2° As regards habitation: 1° affirmatively, by reason of adultery, even if the crime is occult (at least more probably, if the adultery is on the part of the woman), because Christ, by permitting divorce for this cause, did not distinguish between public and private adultery. But for this it is required that the crime be certain, and that scandal not intervene from the separation which cannot be otherwise repaired.² - Yet several say that divorce is not licit on account of occult adultery; because it is not licit to injure the fame of the adulterer by making manifest, even tacitly, a secret crime. 2° Affirmatively also, by reason of danger either of soul or of body, provided the danger is in delay, or the innocent party cannot litigate, or approach the judge, or easily prove the cause.³ But in practice it is expedient that the counsel of a prudent man, especially of the confessor, be sought. But the confessor ought to proceed very cautiously in this matter. Let him beware lest too easily he believe the complaints of wives against husbands; and let him strive to restrain them, and avert them, insofar as it can be done, from divorce. - Besides, diocesan statutes, if there are any, are to be observed. - "Nor do I think those spouses should be disturbed," says Müller, Th. Mor. III. § 227. n. 4, "who have been separated by civil authority only, if they are in good faith; for scarcely any fruit of admonition is to be hoped for."

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 31 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, First Part: On Matrimony I…, Question Five: On the Prop…, Article II: On the Indissolubility of Matrimony

818. Thesis III. By divine law valid, ratified and consummated matrimony, for every cause (except death), is absolutely indissoluble (can. 1118); non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved by divine power granted to the Church and to be exercised ministerially in the name of God: both a) by the law itself through solemn religious profession, and b) through dispensation granted by the Apostolic See from a just cause, at the request of both parties or of one of them, even if the other is unwilling (can. 1119).

It is declared: Matrimony which cannot be dissolved by any earthly power can nevertheless be dissolved by divine power, because every legislator of himself can dissolve a law which he has enacted by his own authority; God could communicate this divine power of his of dissolving the matrimonial bond to the Church, yet to be exercised ministerially in his own name. But now God has communicated to no one, nor has he given to the Church herself, the power of dissolving the sacrament of matrimony, if it is at the same time ratified and consummated, so that it can absolutely never be dissolved; but he has granted that non-consummated matrimony can be dissolved in certain cases.

For understanding this, the principle is useful: whatever is contrary to its sacramental signification is repugnant to Christian matrimony. But dissolubility is absolutely contrary to the sacramental signification of consummated Christian matrimony, not altogether so if it is not consummated. Therefore consummated Christian matrimony is altogether indissoluble, but, on the contrary, non-consummated matrimony is not.⁵

⁵ Cf. Billot, De Ecclesiae Sacramentis, II, th. 46.

The principle is clear, for the sacrament is called by the Apostle, Eph. V, 32, Christian matrimony, insofar as by divine institution it is a sacred sign of the conjunction of Christ and the Church; therefore its laws must now be derived from the exigencies of the signification of this mystery, in the same way as matrimony under the law of nature derives its laws from the exigency of its natural ends. But when the sacrament of matrimony has its consummation, it now signifies the mystery of the indivisible marriage-union of Christ with the Church precisely insofar as it is indivisible. Therefore it too is altogether indivisible.

In reality, the consummation of matrimony, just as it does not make the matrimonial bond in natural being, so neither does it make it in the being of a sacred sign or sacrament; but, with consummation acceding, the preexisting bond in natural being is perfected, not as to its essence, but as to the property of perpetuity or indissolubility, because the firmness of the conjugal bond is chiefly on account of the good of offspring to be received and educated. Likewise, with consummation acceding, the signification of Christian matrimony, or of the preexisting sacred sign and sacrament, begins to extend itself to something to which it did not previously extend itself except only potentially and in first act.

For there is a twofold union of the Son of God with human nature, physical and spiritual: the former is considered according to the drawing of the assumed humanity to the personal being of the Word, the latter is considered according to the communion of grace overflowing from Christ the Head into the body of the Church. The former is altogether indissoluble, because what the Word assumed he never dismissed or will dismiss; the latter, if it is considered with the individual members of the Church separately, is not in every respect indissoluble until it is consummated in glory. Now the conjugal bond does not yet represent in act this physical union of the Word with flesh before the spouses have in fact been made one flesh through the consummation of matrimony; and therefore ratified matrimony is not yet the sign of an absolutely indissoluble conjunction; but the contrary is true if it is ratified and consummated. St. Thomas proposes this thus, q. 61, a. 2, ad 1: "It must be said that matrimony before carnal intercourse signifies that conjunction which is of Christ to the soul through grace, which indeed is dissolved by a contrary spiritual disposition, namely, by mortal sin; but after carnal intercourse it signifies the conjunction of Christ and the Church as to the assumption of human nature into the unity of person, which is altogether indivisible."

Therefore ratified and consummated matrimony can in no way be dissolved, unless perhaps by that mode of dispensation which is assimilated to the working of miracles and belongs to God alone.

"Inseparability, although it is of the second intention of matrimony as it is in the office of nature, is nevertheless of the first intention of it as it is a sacrament of the Church. And therefore, from the fact that it has been instituted to be a sacrament of the Church, while such institution remains, it cannot fall under dispensation, except perhaps according to the second mode of dispensation," i.e., the miraculous mode (q. 67, a. 2, ad 3).

It is proved: A. First part: Ratified and consummated matrimony is absolutely indissoluble. This is certain from the Council of Trent, sess. 24, can. 7, for if it is indissoluble on account of adultery, a fortiori on account of other causes. It is clear:

1° from the arguments brought above (n. 816), which are perfectly verified at least concerning ratified and consummated matrimony;

2° from the fact that the Church does not acknowledge dissolubility. For if such a matrimony could be dissolved, the Church would certainly know either that God dissolves it in certain cases, or that she has from God the power of dissolving it, or at least she would not deny that she has this power. But the Church does not know these things and denies them.

"Consider," says Billot, l.c., "how often the Roman Pontiffs have intervened in causes which pertained to the marriages of Christian kings, opposing a wall for the house of Israel; how often, when asked that, prior marriages having been dissolved, new marriages might be permitted to be made, they always resisted; how often, finally, in this matter they solemnly testified that they were destitute of every power, even if most grave causes were brought forward, such as the sterility of the wife, or the necessity of providing for the stability of the republic and the regular succession to the throne, or the danger of schism and of peoples being withdrawn from obedience to the Apostolic See, etc. Surely no more evident and illustrious confession could have existed" of absolute indissolubility. Whence, although this truth is not found defined in terms in some Council, nevertheless it is altogether certain that it belongs to Catholic doctrine, and it is explicitly proposed by Pius XI in the encyclical Casti connubii.

The words of the Lord, Mt. XIX, 9, are objected: Whoever shall dismiss his wife, except on account of fornication, and shall marry another, commits adultery; and he who shall marry one dismissed commits adultery. But those words are undeservedly opposed to the absolute indissolubility of matrimony. This is clear not only from the altogether parallel places (Mk. X, 11-12 and Lk. XVI, 18), which contain no restriction, but also from the very text of Matthew, if it is accurately weighed. For in reality: 1° immediately before, Christ had pronounced absolutely: What God has joined, let not man separate, and had rejected the exception of the Mosaic law; 2° immediately afterward Christ again pronounces without any exception: He who shall marry one dismissed commits adultery; 3° if the words themselves are inspected, it is clear that according to them two things are required for adultery: not only the dismissal of one's own wife, but also the taking of another woman; in other words, the dismissal of a wife in this case is now the beginning of adultery, which is completed by the taking of another woman. But then an evident exception had to be made for the first part, namely, that such dismissal is not begun adultery if it is done on account of a legitimate reason, namely, the fornication of the woman. This exception is reported by Matthew; it is omitted as evident by Mark and Luke. But even in the case of legitimate dismissal, the conjugal bond is not broken, for Christ immediately adds: and he who shall marry one dismissed commits adultery. This is the strict interpretation according to the text, in which the exception is placed after the words: he who shall dismiss, and not after the words: and shall marry another. Whence the restriction, except on account of fornication, is referred to the preceding words: he who shall dismiss his wife, and in no way to the following words: and shall marry another. And therefore the sense is: He who shall dismiss his wife, - which is not licit except on account of fornication, - and shall marry another commits adultery; and he who shall marry one dismissed commits adultery; but not this: He who shall dismiss his wife and shall marry another, except on account of fornication, commits adultery.

Other interpretations have been given, but this one is preferable, because it rests upon the analysis of the text itself, and is conformed to the sayings of the Fathers.

B. Second part: Non-consummated matrimony can be dissolved.

1° By the law itself through the solemn religious profession of either spouse. - This is certain from the definition of the Council of Trent, sess. 24, can. 6.

It is clear from the tradition of the Church, which is gathered:

a) from the explicit declarations of the Pontiffs Alexander III and Innocent III;

b) from the practice of the Church, which constantly prevailed at least from the twelfth century, and already existed in antiquity.⁶

⁶ That this was a most ancient practice of the Church is already attested by Venerable Bede in the eighth century, who reports the example of Etheldreda, queen of England, who left her spouse King Elfrid and entered a monastery; but when the king had vainly tried to recall his wife, he married another, Amelberga, with no one objecting, neither the Supreme Pontiff nor Bede. - There is also reported the example of St. Alexis in the fourth century; St. Cecilia in the third century; St. Thecla in the first century, whose nuptials, according to the testimony of Epiphanius, haer. 78, St. Paul dissolved. These facts do not compel, says Hugon, Tr. dogm. III, de Matr., a. 3, because it is not always certain whether there was first a true matrimony or only betrothals, and afterward a true religious profession; nevertheless they provide a foundation for the interpretation of the doctors.

The reason of fittingness is that the religious state is more excellent than the matrimonial state; but it was fitting that in the Church of Christ the excellence of that state should be taught not only by doctrine but also demonstrated by a certain fact. But it should be noted that matrimony:

a) is dissolved by the very valid solemn profession including the vow of perfect and perpetual chastity, not by entrance into religion alone;

b) is not dissolved by simple profession, whether temporary or perpetual, nor by that which is emitted in the Society of Jesus and which by privilege diriments matrimony to be contracted;

c) nor is it dissolved by sacred Order or by the solemn vow which is emitted in the ordination of the subdiaconate.

2° Also by dispensation granted by the Apostolic See. - It seems sufficiently certain from the widely diffused practice of the Church, which is now authentically recognized in the Code of Law.

From the time, namely, of Martin V, many Pontiffs practically acknowledge in themselves the power of dissolving ratified marriages on account of grave reasons and exercise it down to our own days; from this general practice the right of the Supreme Pontiff is proved: for although God could permit that this or that Pontiff, according to his private opinion, should admit something less honorable in his own governance, or should err in a particular case (which cases do not fall under infallibility), nevertheless he cannot permit that the Pontiffs should thus be, generally, the authors of baseness, and the cause why marriages would everywhere be dissolved illegitimately and concubinages created, or that they should constantly err; indeed the Pontiffs are infallible judges of their own authority.

Besides, they have the right of dispensing in a vow, even a solemn vow of religion; but this bond is stronger than the bond of ratified matrimony, since it dissolves that bond; therefore a fortiori they are able to dispense in merely ratified matrimony.

For the exercise of this power two things are required: a) juridical proof concerning the non-consummation of the matrimony; b) a legitimate cause, such as the probable nullity of the matrimony, moral impossibility for the spouses of cohabiting together, fear of future scandal and adultery, a civil marriage already entered by one party with a third person, danger of perversion, contagious disease, dissociation of souls without hope of reconciliation, etc.; even if the other party is unwilling for the dispensation.⁷ But if the matrimony has been consummated, or if a legitimate cause is lacking, the dispensation is of no value.

⁷ On the manner of proceeding in practice, cf. decree of the S. Congregation of the Sacraments, May 7, 1923 and March 27, 1929.

The dissolution of matrimony is not made by purely ecclesiastical law, since a derogation would be made from divine and natural law; but it is made by divine law, through the mediation of the Church, by the instrumental divine power granted to her and to be exercised in the name of God. In the same way it can be explained that matrimony is dissolved by solemn religious profession, although some have said that it is dissolved immediately by God or even from the very nature of the thing.⁸ Perhaps nevertheless it could be said with Haine, Th. M., de Matr., q. 71, that the privilege of dissolution of matrimony was conferred by God generally upon the profession of vows; but that the Church can prescribe the necessary condition for this privilege to be applied in particular cases and for matrimony to be dirimented by this profession. Today this condition is the solemnity of vows.

⁸ Sometimes St. Thomas, q. 61, a. 2, is adduced: "Before carnal intercourse there is between the spouses only a spiritual bond; but afterward there is also a carnal bond between them. And therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so by entrance into religion the bond which exists before carnal intercourse is dissolved, because religion is a certain spiritual death, by which someone, dying to the world, lives to God." But it is clear that this is only an argument of fittingness.

But it is disputed whether matrimony validly entered and consummated before Baptism, but after the Baptism of one or both spouses no longer consummated, is dissolved by religious profession. Concerning this there is not sufficient certainty, but perhaps the Supreme Pontiff can dispense in it; whence for the sake of security, in individual cases recourse must be had to the Holy See.

They object: 1° What God has joined, let not man separate. - Resp.: In this case the Church acts in the name of God; she uses divine power, not her own social power. If divine law is in itself absolutely determined, the Church indeed cannot derogate from it; but if there intervenes a human fact which is the condition that divine law oblige, then the Church judges that she can derogate. But in matrimony there intervenes a human fact, namely, matrimonial consent, and the Church exercises power over this human act in the name of God, and thus renders it null. So also in a vow there intervenes human liberty; and likewise the Church remits it in the name of God. And thus she does not properly dispense in the law of God, but brings it about that the human act no longer falls under the law of God, and withdraws the matter of the divine law.