CONGREGATION FOR THE DOCTRINE OF THE FAITH
The power of the Church to dissolve marriage in favour of the faith has been regulated until now, apart from the pauline privilege, by the Instruction on the Dissolution of Marriage and the Procedural Norms approved by Paul VI and published in 1973 by the Congregation for the Doctrine of the Faith. These documents presented the conditions in which a case may be introduced for the dissolution of a marriage and the procedural norms to be observed in the dioceses before the acts may be sent to this Congregation. After the promulgation of the Code of Canon Law for the Latin Church and the Code of Canons of the Eastern Churches for the Eastern Churches, it is necessary to adapt a number of their provisions to the new legislation.
It is certainly well known that a marriage between non-catholics, at least one of whom is not baptised, in certain conditions can be dissolved by the Roman Pontiff in favour of the faith and the salvation of souls. The exercise of this power is however subject to the judgment of the Supreme Pontiff in view of the pastoral necessities of the time and the place and all the circumstances in each case.
The use of the so-called «pauline privilege», that is, the case of the dissolution of marriage mentioned in the Letter of St Paul to the Corinthians (7:12-17), is regulated in the Code of Canon Law (cann. 1143-1147) and in the Code of Canons of the Eastern Churches (cann. 854-858). The words of the Apostle are interpreted by the Church as the concession of a true freedom to the baptised party to enter a new marriage, «if the unbaptised party departs» (ibid., v.15). On the other hand, the Church over the years repeatedly furnished the pauline privilege with positive norms, particularly regarding the definition of the term «depart», the requirement that «departure» be established in the ecclesiastical forum by means of the «interpellations», and the norm that a marriage is not dissolved until the moment another marriage is contracted by the baptised party. Consequently, the pauline privilege was already established as a fully defined theological-canonical institute by the beginning of the XIII century and remained essentially unchanged in the ensuing centuries until it was received in a refined form in the recently promulgated law. This demonstrates clearly that the Church has always been entirely aware of the power it enjoys to define the limits of this privilege as well as to interpret it in a broader sense, as it did for example with regard to the meaning of the term «to depart», which is fundamental to the pauline privilege.
Moreover, when new pastoral circumstances arose with the missionary growth of the XVI century, the Roman Pontiffs did not hesitate to address the needs the polygamists who were being converted to the faith with new and very broad «privileges» which went far beyond the limits of the «pauline privilege», described in the citation from St Paul, with regard to the dissolution of a bond contracted between two unbaptised persons. This was effected primarily through the following Apostolic Constitutions which remained in force in the territories for which they were given until the promulgation of the Code of 1917: Paul III, Altitudo, 1 June 1537; St Pius V, Romani Pontifices, 2 August 1571; and Gregory XIII, Populis, 25 January 1585. The 1917 Code, however, extended them to the entire Church (can. 1125); consequently they were formally in force until the promulgation of the Code of 1983. With the obsolete elements duly removed, this Code makes provision in cann. 1148-1149 for the cases of dissolution of marriage which were treated in these three Constitutions. The Code of Canons of the Eastern Churches makes the same provisions in cann. 859-860.
It should be noted that marriages dissolved in virtue of the pauline privilege, and those mentioned in cann. 1148-1149 CIC and 859-860 CCEO, are dissolved by the law itself when the conditions prescribed in the current legislation are fulfilled, without any need to have recourse to higher authority. Regarding other marriages entered into by parties of whom at least one is not baptised, if they are to be dissolved, they are in each case to be submitted to the Roman Pontiff who, after they have been examined by the Congregation for the Doctrine of the Faith, judges in accord with his own pastoral prudence whether or not the dissolution of the bond is to be granted.
The practice of the Roman Pontiff granting a dissolution of the bond in individual cases was introduced after the promulgation of the Code of 1917. In earlier times, the provisions of the pauline privilege and the Constitutions mentioned above were sufficient since cases requiring this remedy seldom occurred outside the missionary territories. In the traditionally Christian realms, valid marriages between a baptised and an unbaptised person were extremely rare because of the social and religious environment and above all because of the stability of marriage and the family and the small number of dispensations from the impediment of disparity of cult. In the XX century, however, the number of marriages calling for the pastoral remedy of the dissolution of the bond has been constantly on the rise for a number of reasons, including the following: the former separation between religious denominations, for centuries enclosed in themselves, generally disappeared in this period with the result that mixed marriages multiplied drastically, including marriages between catholics and unbaptised parties celebrated with a dispensation from the impediment of disparity of cult; the number of marriages open to the remedy of dissolution of the bond also increased with the abrogation of the impediment of disparity of cult in the 1917 Code with respect to baptised non-catholics; marriages between these non-catholics and the unbaptised were therefore valid without any dispensation. In addition, with the ever-increasing weakness and instability of family ties, divorce is proliferating (cf. Gaudium et Spes, 47) and the number of marriages ending in breakdown grows daily.
Convinced that the Church enjoys the power to dissolve marriages between non-catholics, of whom at least one is unbaptised, the Roman Pontiff did not hesitate to meet the new pastoral conditions by introducing the practice of exercising this power of the Church in individual instances if it appeared to him, after an examination of all the aspects of each case, that it was duly in favour of the faith and the good of souls.
Fifteen years after the promulgation of the Pio-Benedictine Code, cases of dissolution in favour of the faith had already become so frequent that the Congregation of the Holy Office published an Instruction of the first of May 1934, entitled Norms for the preparation of a process in cases of the dissolution of the marriage bond in favour of the faith by the supreme authority of the Supreme Pontiff. Confirming the authority of the Supreme Pontiff to dissolve marriages entered into by non-catholics, of whom at least one is not baptised (art. 1), and the exclusive competence of the Congregation of the Holy Office to deal with this matter (art. 2), the Instruction stipulated the requirements for the concession of the favour (art. 3), and provided procedural norms for the preparation of the process in the diocese before all the acts were sent to the Congregation of the Holy Office (artt. 4-18). The Instruction was given to the local Ordinaries concerned, but it was not published in the Acta Apostolicae Sedis in view of the danger that the Church might have been presented by the media to be favouring divorce.
Following the Second Vatican Council, the Supreme Pontiff Paul VI determined that this entire matter should be studied thoroughly and that the Instruction of 1934 was to be revised and duly adapted to new circumstances. Once this revision was completed, the new Instruction on the dissolution of marriage in favour of the faith together with the Procedural Norms was published by the Congregation for the Doctrine of the Faith, as mentioned above, on the sixth of December 1973. It was again, however, not published in the Acta Apostolicae Sedis but discreetly transmitted to local Ordinaries in the same way as the 1934 Instruction had been made known. Nevertheless, it appeared thereafter in numerous publications.
At the time the Code of Canon Law was being revised, canons were drafted which briefly set forth both the elements of the substantive law and procedural norms for the dissolution of the marriage bond in favour of the faith. Instead of including this complex material in the Code, however, it seemed to Superior Authority more opportune that it be assigned to particular norms, specially approved by the Supreme Pontiff and published by the Congregation for the Doctrine of the Faith.
Revised and adapted to the existing legislation promulgated in both the Code of Canon Law and the Code of Canons of the Eastern Churches, the Norms for the dissolution of the bond are now sent to diocesan Bishops and Eparchs in order to ensure that curial offices establish a practice regarding the substantive principles for accepting cases and for the instruction of the process, prior to transmitting them to the Congregation for the Doctrine of the Faith.
Lest the faithful suffer spiritual and temporal harm, however, Bishops are to ensure that any cases for the dissolution of the bond in favour of the faith which arise in their jurisdiction are to be carefully examined before being accepted, in order to establish whether they can in fact be admitted according to the following Norms. If it appears that they should be accepted, the Bishop is also to ensure that the process in the diocese is faithfully and carefully instructed according to these Norms so that the acts sent to the Congregation are entirely complete and properly assembled.
With the establishment of these new norms, the previous norms issued for the instruction of these processes are entirely abrogated, everything to the contrary notwithstanding, even those things worthy of mention.
The Supreme Pontiff Pope John Paul II, in an Audience on the 16 February 2001, approved these Norms adopted at an Ordinary Session of this Congregation, and ordered that they be faithfully observed.
Rome, from the office of the Congregation for the Doctrine of the Faith, 30 April 2001, the memorial of Saint Pius V.
Cardinal Joseph Ratzinger
Tarcisio Bertone, S.D.B.
A marriage entered into by parties, of whom at least one is not baptised, can be dissolved in favour of the faith by the Roman Pontiff, provided that it has not been consummated after both parties have received baptism.
It is the competence of the Congregation for the Doctrine of the Faith to examine the individual cases and, if it is warranted, to submit the petition to the Supreme Pontiff requesting the favour.
A diocesan Bishop and those equivalent to him in law, or an eparchial Bishop, are competent to instruct the process.
For the concession of the favour of the dissolution of the bond, at the moment it is given, it is required that:
1º there is no possibility of resuming the partnership of conjugal life;
2º the petitioner was not exclusively or predominantly the culpable cause of the breakdown of the conjugal life, and that the party with whom the new marriage is to be contracted or convalidated was not at fault in provoking the separation of the spouses.
§ 1. A Catholic party who intends to contract or to convalidate a new marriage with a person who is not baptised or with a baptised non-Catholic, is to declare that he or she is prepared to remove dangers of defecting from the faith and the non-Catholic party is to declare that he or she is prepared to allow the Catholic party the freedom to profess his or her own religion and to baptise and educate their children as Catholics.
§ 2. The favour of the dissolution is not conceded unless this declaration in writing has been signed by both parties.
A process may not be instructed for the dissolution of the bond of a marriage contracted or convalidated after obtaining the dissolution in favour of the faith of a prior marriage, nor may it be presented to the Congregation for the Doctrine of the Faith for examination.
§ 1. A petition can be presented to the Supreme Pontiff for the dissolution of the bond of a non-sacramental marriage entered with a dispensation from the impediment of disparity of cult if the Catholic party intends to enter a new marriage with a baptised person.
§ 2. In the same circumstances, a petition may be presented to the Supreme Pontiff if the unbaptised party intends to receive baptism and enter a new marriage with a baptised party.
§ 3. The Bishop is not to direct the petition to the Congregation for the Doctrine of the Faith if a prudent doubt should exist regarding the sincerity of conversion of the petitioner or the intended spouse even though the baptism has already been received by one or both of them.
In the case of a catechumen entering marriage, the wedding is to be delayed until after the baptism; if for grave reasons this cannot be done, it is to be morally certain that the baptism will be received as soon as possible.
The Bishop is to consult the Congregation whenever special difficulties exist in the way in which the petitioner intends to fulfil his or her obligations toward the former spouse and any children they may have had, or if there is a fear of scandal from the concession of the favour.
If a positive doubt should arise on any ground about the validity of the marriage whose dissolution is being sought, either in the process under the Bishop’s direction or in the examination of the case at the Congregation for the Doctrine of the Faith, the petition directed to the Roman Pontiff is to make mention of this doubt.
§ 1. With the assistance of a notary and the intervention of the defender of the bond, the Bishop is to conduct the instruction of the process himself or commit it to an instructor selected either from the judges of the tribunal or from persons whom he has approved for this work.
§ 2. This commission is to be made in writing and it must appear in the acts.
§ 1. Assertions must be proven according to the norms of law, either with documents or the depositions of trustworthy witnesses.
§ 2. Both spouses are to be heard during the instruction.
§ 3. The force of full proof cannot be attributed to declarations by the parties unless there are other elements which wholly corroborate them and from which moral certitude can be acquired.
§ 1. Documents submitted in original form or in authentic copy are to be verified by the notary.
§ 2. The documentation transmitted to the Congregation for the Doctrine of the Faith is to be complete and the copies are to be authenticated by the Bishop’s notary.
§ 1. The examination of the parties and witnesses is conducted by the instructor who must be attended by the notary. The defender of the bond is to be cited for the examination.
§ 2. The instructor is to administer an oath to the parties and witnesses that they will tell the truth, or that what they have said is the truth; if, however, one refuses to take an oath, he or she is to be heard unsworn.
§ 3. The instructor is to question the parties and witnesses in accordance with a questionnaire prepared in advance either by the instructor or by the defender of the bond; if need be, the instructor may add other questions.
§ 4. The answers are to be signed by the party or the witness, the instructor and the notary.
§ 1. If the other party or a witness refuses or is unable to appear before the instructor and give testimony, their declarations may be obtained either before a notary or in any other lawful manner, provided it is established that they are genuine and authentic.
§ 2. The absence of the other party from the process is to be declared in accordance with the law and is to be recorded in the acts.
§ 1. The absence of the baptism of either spouse is to be demonstrated in such a way that every prudent doubt is removed.
§ 2. Witnesses are to be heard in view of their quality, such as the parents or relatives of the unbaptised party or those who knew the person as an infant and have knowledge about the entire course of the party’s life.
§ 3. The witnesses are to be questioned not only about the absence of baptism but also about the circumstances and the other indications that would probably indicate that baptism had not been conferred.
§ 4. Care is to be taken that the baptismal registers are examined in those places where it is established that the party who claims to be unbaptised had lived as a infant, especially in those churches which the party may have frequented or in which the marriage was celebrated.
§ 5. If the marriage was celebrated with a dispensation from the impediment of disparity of cult, the instructor is to obtain copies of the dispensation and the prenuptial inquiry for the acts.
§ 1. If the unbaptised spouse is baptised at the time the favour of the dissolution is being sought, there must be an inquiry into the possibility of cohabitation after the baptism; witnesses are also to be questioned about this matter.
§ 2. The parties in the case are themselves to be asked whether they had any relationship after their separation and what kind, and especially whether they had engaged in a conjugal act.
§ 1. The instructor is to collect information on the state of life of the other party and to report whether that party has attempted a new marriage after the divorce.
§ 2. The instructor is to question the parties and witnesses about the cause of the separation or divorce, so that it is clear who was at fault for the breakdown of the marriage or marriages.
§ 1. A copy of the party’s divorce decree or civil nullity sentence is to the presented.
§ 2. Copies are to be presented, where they exist, of any divorce decree or civil nullity sentence together with the dispositive part of the canonical nullity sentence for any marriages attempted by either of the intended spouses.
§ 1. The instructor is to report whether the petitioner has had any children and in what way the petitioner has provided or intends to provide for their religious education in accordance with the law and the petitioner’s capabilities.
§ 2. The instructor must also inquire about the existence of any obligations either moral or civil toward the former spouse and any offspring which they may have had.
§ 1. If either the petitioner or the intended spouse has been converted and baptised, they are to be questioned regarding the time and intention of being baptised.
§ 2. The parish priest is also to be questioned about the reasons for the baptism, and especially about the integrity of the parties.
§ 1. Explicit reference is to be made in the acts to the religious practice of both the petitioner and the intended spouse.
§ 2. Certificates of baptism or profession of faith or both are to be included in the acts.
When the instruction has been completed, the instructor is to give all the acts, without publishing them, together with a suitable report, to the defender of the bond whose responsibility to is to find reasons, if there are any, against the dissolution of the bond.
§ 1. Having received all the acts, the Bishop is write his opinion concerning the petition which indicates accurately whether the conditions for the concession of the favour have been fulfilled, and especially whether the promises, mentioned in art. 5, have been made.
§ 2. The reasons are to be given which recommend the concession of the favour, always including whether the petitioner has attempted a new marriage in any way or may be living in concubinage.
§ 1. The Bishop is to send three typewritten sets of the acts to the Congregation for the Doctrine of the Faith, together with his opinion and the observations of the defender of the bond, an index and the summary of the case.
§ 2. Care is also to be taken that the acts of a case drawn up in the language and style of the place are translated into one of those recognized in the regulations of the Roman Curia and confirmed with a sworn declaration that they have been faithfully translated and transcribed.