Matrimony — Extrinsic Dissolubility in Exceptional Cases

Section 3: Extrinsic Dissolubility in Exceptional Cases

We have seen that Matrimony can be dissolved neither by mutual agreement nor by any human agency. The question arises: can it be dissolved by a divinely constituted authority? The answer is: yes, in certain exceptional cases.

Marriage between baptized persons, provided it has not yet been consummated, can be dissolved (1) by a dispensation from the Supreme Pontiff, and (2) by solemn profession in a religious order.

Marriages among pagans or infidels, whether consummated or not, can be dissolved by virtue of the Pauline privilege when one party becomes converted to the true faith and the other refuses to receive Baptism or to live in peaceful wedlock.

We shall explain this teaching in three separate theses.

Thesis I: The Pope can for important reasons dissolve an unconsummated marriage between Christians.

Proof. In the Middle Ages the doctrine embodied in this thesis was upheld by the canonists against the theologians, but to-day it is regarded as “sententia communis et certa” by all.

About the middle of the sixteenth century Ruardus Tapper (d. 1559) censured Cardinal Cajetan for defending this papal prerogative “against the common view of theologians and the express teaching of St. Thomas.” Among later divines Tournely, Drouin, Collet, and Berlage took the same attitude, while canonists quite generally held the affirmative. Among the earlier theologians there was a sort of dissensus negativus, as they did not treat this subject at all. However, it has been proved from history that unconsummated marriages between Christians were occasionally dissolved by papal decree,¹ nay, more — from Martin V to Leo XIII the popes have expressly claimed and exercised the prerogative of dissolving such marriages, and hence it is no longer permissible to speak of mistakes committed by individual pontiffs. The conduct of the Holy See in this matter is so constant and so deeply touches faith and morals that it cannot possibly be attributable to error. Consequently, the power of dissolving unconsummated marriages between Christians must be a legitimate function of the primacy.

Some writers deduce this prerogative from Matth. XVI, 19: “Whatsoever thou shalt loose on earth, it shall be loosed also in heaven.” But this text proves too much and therefore proves nothing. Were we to allow the interpretation put upon it, we should have to admit that it proves the power of the Pope to dissolve consummated as well as unconsummated marriages, which is false. Hence we prefer to rest the argument on a different basis. The papal prerogative asserted in our thesis is not contrary to Scripture, Tradition, and the natural law; and, according to the unerring belief of the universal Church, belongs to the Sovereign Pontiff by virtue of the primacy.

There is nothing in Sacred Scripture or Tradition to prove the absolute (intrinsic and extrinsic) indissolubility of Christian marriage before it is actually consummated. The law of nature merely says that the marriage bond cannot be dissolved except by God or by a divinely constituted authority.² But the Pope, being the vice-gerent of Christ on earth, exercises his primatial power in the name of God, and the Church not merely tolerates this practice, but expressly approves of it. Surely the episcopate would have protested had the Holy See usurped a power to which it had no just claim. It is incompatible with the dogma of the Church’s infallibility to assume that the entire Church, both docens and discens, grievously erred in such an important question of faith and morals, and hence we must conclude that the Supreme Pontiff actually has the power to dissolve unconsummated marriages between Christians.³

Thesis II: An unconsummated marriage between Christians is dissolved by the solemn profession of either party in a religious order. We are here dealing with an article of faith.

Proof. This exception from the rule of indissolubility was manifestly made in favor of the religious state, which, as such, is superior to wedlock.⁴ Examples of marriages dissolved by solemn religious profession can be traced to the early days of Christianity. Theoretically our dogma was defined by the Council of Trent, as follows: “If anyone saith that Matrimony contracted, but not consummated, is not dissolved by the solemn profession of religion by one of the married parties, let him be anathema.”⁵ Hence solemn profession in a religious order stands in the same relation to unconsummated marriage as death does to consummated marriage. It is a kind of spiritual death, a relinquishment of the world and worldly things. Note, however, that the marriage bond is not dissolved by mere entry into a religious order, but only by the act of solemn profession.

a) The proof of our thesis rests entirely on Tradition. In the twelfth century, what had long been a practice was embodied in a decretal of Alexander III, and in the thirteenth, was confirmed by a decision of Innocent III. Both documents form part of the Corpus Iuris Canonici.⁶

Pope Alexander III recalls the example of certain saints who left their wives to embrace the religious state. As Alexander wrote in the year 1180, these saints must have lived before the twelfth century. St. Bede has preserved an early example in the story of Queen Edilthryda, who flourished in the seventh century.⁷ Still more ancient is the story of the two courtiers related by St. Augustine in his Confessions.⁸ The older Fathers⁹ tell how St. Thecla abandoned her husband to serve God in the state of virginity.¹⁰ Though the Acts of Paul and Thecla are not history but “a highly romantic work of imagination,”¹¹ the reflexions based upon her supposed conduct by the Fathers prove that the primitive Church regarded the act of leaving husband or wife for God’s sake as a new and higher spiritual marriage with the Divine Spouse. It was this belief, no doubt, which led to the opinion that the new bond dissolved the older and weaker one, provided the latter had not yet become indissoluble by carnal intercourse.

b) There is a lively controversy among theologians as to whether the dissolution of an unconsummated marriage by solemn religious profession is based on the natural law, the law of the Church, or the divine law.

α) St. Thomas, Bellarmine, Habert, Drouin, and others hold that it is based on the law of nature. They argue that so long as there is no violation of the rights of a third party (which is impossible when a marriage has not yet been consummated), the more perfect abolishes the less perfect state. However, this view is untenable for several reasons. In the first place it would seem that the married state, being prior to the religious state, negatives the latter. Second, the marriage bond and the religious state are by no means mutually exclusive, but may coexist, as e.g. when a father enters a religious order with the consent of his wife. Third, a truly religious life may be led not only in the regular orders, but likewise in approved congregations which demand no solemn profession. Thus the Society of Jesus, according to a constitution of Gregory XIII,¹² is a true religious order despite the fact that many of its members take only simple vows, which do not dissolve the bond of an unconsummated marriage. Fourth, the episcopate vies in perfection with the religious state, and yet episcopal consecration does not dissolve the marriage tie.

β) Suarez, Lessius, Sardagna, Lehmkuhl, Tepe, and other theologians hold that the dissolution of an unconsummated marriage by solemn religious profession is based entirely on ecclesiastical law. The Church, they say, has the power to clothe any religious profession with the character of solemnity. “Voti solemnitas ex sola constitutione Ecclesiae est inventa,” says Pope Boniface VIII.¹³ Hence it is the Pope who, by virtue of the primacy, and acting through an ecclesiastical law, dissolves the marriage bond whenever one party to an unconsummated marriage makes solemn profession in a religious order.¹⁴

Against this theory stands the fact that the dissolution of the marriage bond by solemn religious profession is more ancient than the papal book of decretals and the Canon Law of the Church. The law is merely a positive formulation of a practice which existed in the primitive Church, and hence cannot be of purely ecclesiastical origin. Moreover, there must be some unalterable dogmatic truth underlying the Tridentine canon. If the law dissolving marriage in the case of solemn religious profession owed its existence to the Church, it could be revoked by the Church, which no theologian will dare to assert.

γ) Hence it is more probable to hold with Sanchez, Tournely, Billuart, Benedict XIV, Perrone, Palmieri, and De Augustinis, that the law by which an unconsummated marriage is dissolved when one of the parties makes solemn profession in a religious order, is of divine institution and that the Church has no other power with regard to this law than to determine the conditions under which it takes effect.¹⁵

Thesis III: A marriage between infidels or non-baptized persons, even though consummated, may be dissolved by virtue of the so-called Pauline privilege, if one party is converted to the faith, while the other refuses to live with the baptized in peaceful wedlock. This doctrine may be qualified as “sententia communis et certa.” (C.I.C., can. 1120, § 1).

The “Pauline privilege,” or “casus Apostoli,” as it is commonly called by canonists, applies only to marriages contracted between unbaptized infidels, Jews or pagans. As soon as one of the parties embraces Christianity and receives Baptism, even though the other remain unconverted, such a marriage falls under the jurisdiction of the Church. However, Baptism as such does not dissolve the marriage bond,¹⁶ but merely gives the baptized party the right to contract a new marriage with a Christian, which latter ipso facto dissolves the previous marriage.¹⁷

Before the converted party to such a marriage can invoke the Pauline privilege, he or she must ascertain, (1) whether the unconverted party is willing to embrace the Christian religion, in which case the bond remains intact; (2) whether he or she is willing to live in peaceful wedlock without injury to the Creator (sine contumelia Creatoris). Only if both these questions are answered in the negative may the Pauline privilege be made use of and a new marriage contracted. Such a dissolution of the marriage bond takes place “in favor of the faith” and by divine right.¹⁸

Proof. a) The famous privilegium Paulinum is promulgated in 1 Cor. VII, 10 sqq., where the Apostle says (in the Westminster Version): “To the married I give this charge — nay, not I, but the Lord — that a wife depart not from her husband (but if she have departed, let her remain unmarried, or be reconciled to her husband), and that a husband put not away his wife. But to the rest, it is I who speak, not the Lord: If any brother hath an unbelieving wife, and she is content to live with him, let him not put her away. And the wife that hath an unbelieving husband, who is content to live with her, let her not put away her husband… . (But if the unbeliever depart, let him depart; the brother or the sister is under no bondage in such cases, but God hath called you unto peace).”

That St. Paul in this passage concedes to the baptized party under certain conditions the right to dissolve the old and pass to a new marriage, is evident from the fact that he expressly opposes the marriage of unbelievers to marriage between Christians.

Among Christians, he says, if a wife depart from her husband, she must remain unmarried or be reconciled to him. In other words, Christian marriage is indissoluble. Not so among the unbaptized. If one party receives Baptism, and the other refuses to dwell peacefully with him or her, “let the unbeliever depart” — for “the brother or the sister is under no bondage in such cases” — that is to say, is free from the marriage bond, and consequently can contract another marriage. For if the neophyte remained bound by his former marriage, he would enjoy no privilege but, on the contrary, be condemned to lead a celibate life, like the separated parties to a Christian marriage.

St. Paul does not expressly discuss the case where the unconverted party is willing to dwell peacefully with the converted party, not, however, sine contumelia Creatoris, i.e., without injury to God and his or her own soul.¹⁹ But the very purpose of the Pauline privilege sufficiently indicates that such unsatisfactory cohabitation would be morally equivalent to a discessio and consequently could not stop the effect of the “departure” for the baptized party.²⁰ Moreover, in such cases it is not true that “the unbelieving husband is sanctified in the wife, and the unbelieving wife is sanctified in the believing husband.”²¹

b) Whether or not the unconverted party is willing to live with the converted party,²² can only be ascertained by an inquiry.

This inquiry, technically called interpellatio, is imposed by the Church as a strict obligation.²³ Whether its omission makes a new marriage invalid, is a controverted question. The affirmative view is championed by Brancatius and Perrone. Against them Ballerini maintains²⁴ that the mere fact that the unconverted party refuses to dwell peacefully with his or her converted partner is sufficient to render a new marriage valid, just as the mere fact that a husband or wife is dead is sufficient to insure the validity of a second marriage.

c) What if the inquiry demanded for the Pauline privilege is either physically or morally impossible, as e.g. when the unconverted party is a prisoner of war or has removed to unknown parts? Is the baptized party in such a case condemned to lead a single life? According to Canon Law the Holy See has the power to dispense from the duty of interpellation if the unconverted party cannot be found.²⁵

α) The Third Plenary Council of Baltimore (1884) decrees: “One who has contracted Matrimony with an infidel in the state of infidelity, and then becomes converted to the faith and baptized, cannot pass to a new marriage without first interrogating his infidel spouse concerning her (or his) will to live with him (or her) peacefully and without injury to the Creator. If the infidel party cannot be interpellated in accordance with the law, the Holy See must be asked for a dispensation.”²⁶ A peculiar feature of this practice is that a new marriage contracted with papal dispensation is valid even if it turns out later that the unconverted party was ready at the time to dwell peacefully with the converted party or had himself embraced the faith. As this case is not covered by the Pauline privilege, some theologians (Benedict XIV, Perrone, Hurter, Braun) hold that in such circumstances the Pope can extend the Pauline privilege because in exceptional cases, which St. Paul did not foresee, there must exist a supreme authority which adapts the divine law to concrete conditions.²⁷

β) However, the practice of the Apostolic See in granting such dispensations can be more satisfactorily explained on the assumption that the Pope is not only empowered to interpret the Pauline privilege authentically, but likewise, by virtue of the primacy, to dissolve the legitimate marriages of infidels when either one or both parties embrace Christianity. That such a power is really vested in the Holy See may be inferred from the declaration of Urban VIII that “the marriages of infidels are not so firm that they cannot be dissolved when necessity urges,”²⁸ and from the fact that a convert who has several wives may, if the first refuses to be converted, with papal permission retain any one of them who will embrace the faith.²⁹

Readings: Gasparri, Tract. Canonicus de Matrimonio, 2 vols., Paris 1891. — Baier, Die Naturehe in ihrem Verhältnis zur paradiesischen, vorchristlichen und christlich-sakramentalen Ehe, Ratisbon 1889. — C. Boeckenhoff, De Individuitate Matrimonii, Berlin 1901. — Didon, Die Unauflöslichkeit der Ehe und die Ehescheidung, Ratisbon 1893. — Al. Cigoi, Die Unauflöslichkeit der christl. Ehe und die Ehescheidung nach Schrift und Tradition, Paderborn 1895. — J. Fahrner, Die Geschichte der Ehescheidung im kanonischen Recht, I: Geschichte des Unauflöslichkeitsprinzips und der vollkommenen Scheidung der Ehe, Freiburg 1904. — Scharnagl, Das feierliche Gelübde als Ehehindernis in seiner geschichtlichen Entwicklung, Freiburg 1908.