Page:Catholic Encyclopedia, volume 5.djvu/84

 DIVORCE

60

DIVORCE

1. The Pauline Privilege. — The Magna Charta in favour of Christiaa faith is contained in the woixls of the Apostle, I Cor., vii, 12-15: " If any brother hath a wife that beUeveth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that beUeveth not, and he consent to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the believing wife, and the unbelieving wife is sanctified by the be- lieving husband: otherwise your children should be unclean; but now they are holy. But if the unbeliei'er depart, let him depart. For a brother or aister is not under servitude in such cases. But God hath called us in peace." (On the interpretation of these words see Comely on I Cor., 17.5 sqq.) The exegetical contro- versy, as to whether these words are dependent on the preceding sentence, '' For to the rest I speak, not the Lord", or whether that sentence refers to the one pre- ceding it, is of no importance in tliis question. In the first supposition, we should seem to have here an ordi- nance which is not immediately Divine, but was es- tablished by the Apostle through the power of Christ. In the second supposition, it may be an immediately Divine ordinance.

These words of the Apostle tell us that in all cases wlien one of the -married parties has received the Christian Faith, and the other remains an infidel and is not willing to live in peace with the Christian, the be- liever is not bound but is free. The Apostle docs not indeed say expressly and formally that the marriage bond has been dissolved, but if it were not at least in the power of the Christian to dissolve the previous bond and to enter upon another marriage, the words would not have their full trvith. Hence the Church has understood the words in tliis sense, and at the same time has fixed more exactly how and under what conditions this so-called Pauline privilege may be ex- ercised. Innocent III declares authoritatively (IV Decretal., xix, 7, in cap. "Quanto") that the convert is justified in entering upon another marriage if he will, provided the non-Christian is unwilhng either to live with the other or such cohabitation would cause the blasphemj' of the Divine name or be an incentive to mortal sin: "Si enim alter infidelium conjugum ad fidem convertatur, altero vel nuUo modo, vel non sine blasphemia divini nominis, vel ut eum pertrahat ad mortale peccatum ei cohabitare volente: qui relinqui- tur, ad secunda, si voluerit, vota transibit: et in hoc Casu intelligimus quod ait Apostolus: SJ infidelis dis- cedit, etc., et canonem etiam in quo dicitur: Contumelia creatoris solvit jus matrimonii circa eum qui relinqui- tur." According to the Church's interpretation and practice, the dissolution of the marriage that was con- tracted before conversion is not effected by the separa- tion of the married parties, but only when a new mar- riage is contracted by the Christian party because of this privilege. The Holy Office says this expressly in the decree of 5 August, 1759. ad 2: ''Then only may the yoke of the matrimonial bond with an infidel be understood to be loosed when the convert spouse. . . proceeds to another marriage with a believer" (CoUec- tan. S. Congr. de Prop. F., n. 1312). The manner of obtaining this right to enter upon a new marriage is fixed by the Church under penalty of invalidity, and consists in a demand {inlerpellatio) made of the non- Cliristian party whether he or she be willing to live with the other in peace or not. If this interpellation is not possible, an .\postolic dispensation ab interpellatione must be obtained (Collectanea, n. 1.323). If the spouse that remains in infidelity agrees to live in peace, bvil later on acts contrary to this agreement by abusing the Christian religion, or tempting the Chris- lian to infidelity, or preventing the children from being educated in the Christian Faith, or becomes a temptation for the Christian to commit any mortal sin, the latter regains the right to proceed to a new mar- riage after any lapse of time. This consequence which

follows from the very nature of the pri\'ilege was ex- presslj' declared by the Holy Office in the decree of 27 September, 1S4S, and was confirmed by Pius IX (Col- lectan., n. 1337; Ballerini-Palmieri, "Opus theol. Mor.", 3d ed., VI, n. 468). If, however, the non- Cliristian party refuses to continue further in married fife, not from hatred of the Faith or for other sinful reasons, but because the Christian, by sinful conduct (for instance by adultery), has given just reason for separation, the Christian would not be justified in en- tering upon a new marriage. The privilege, however, would still be his if the non-Christian party wished to maintain as reason for separation adultery committed before the time of conversion. (Collectan.,n. 1312,1318, 1322.) The interpellation of the non-Christian party, which must take place before the remarriage of the Christian, must as a general rule be about living to- gether in peace or not, but as peaceful cohabitation can only be imagined in a case where there are no seri- ous dangers, and such dangers may arise in certain cir- cumstances from continuetl living with the non- Christian party, it is readily understood that the Holy See is justified in making the interpellation mean, whether the non-Christian party be willing to accept the Christian Faith; and in case the non-Christian re- fuses after careful (.leliberation, then, as a result of this refusal, permission may be gi-anted to the Christian party to enter upon a new marriage and thereliy to dissolve the previous one. This procediu-e, allowed by Sixtus V, received new confirmation and direction under Leo XIII by the decree of the Holy Office, 29 November, 1SS2 (CoUectan., n. 1358, ad 3).

The Pauline privilege is said to be in favour of the Christian Faith, but the meaning of the privilege and the right in such cases to absolute divorce is not ex- actly defined thereby. Doubt might arise in regard to catechumens, and also in regard to such as join a Christian denomination but do not belong to the Ro- man Catholic ChiH'ch. The solution of these doubts is containetl in the following proposition: the Pauline privilege is attached to baptism. That the privilege is granted to nobody before the actual reception of bap- tism is beyond question from the decree of the Sacred Congregation of Propaganda, 16 January, 1803 (CoUectan., n. 1319), and also from the decree of the Holy Office, 13 March, 1901 (Acta S. Sedis, XXXIII, 550). Even the interpellation of the non-Christian party ought to be postponed until after the baptism of the other. It requires a papal dispensation to pro- ceed to such an interpellation validly before baptism (Cf. Instructio S. Officii, under the authorization of Pius IX, 3 June, 1S7-4. in CoUectan., n. 1357). It is also certain that the dissolubility here in question is not Umited to the marriages of pagans, but to all mar- riages of unbaptized persons, even though they should belong to some non-Catholic Christian denomination (Acta S. Sedis, loc. cit.). Whether, however, the privi- lege is so joined to baptism that it belongs to Christian adherents of a non-Catholic denomination when they profess the Christian Faith by the reception of bap- tism is a question disputetl by theologians. Some theologians of repute assert that the privilege is granted in this case, and that a practical decision to this elTect has been made by a Roman Congregation, according to the testimony of Konings, "Theol. mor.", II, 394 (Xew York, 187S). (Cf. Palmieri, "De matrim. Christ.", th. xxvii, p. 224; Tarquini in ",\rchiv fiir kath. Kirchenrecht ", L, 224 sqq.; Wernz, "Jus de- cretal.", IV, n. 702. not. 59; Gaspam, "De matrim.", II, n. 1331; Ballerini-Palmieri, "Opus theol. mor.". 3d ed., VI, 457 sqq.) Even in the early ages, the Venerable Bede and St. Augiistine seem to have understood the passage from St. Paul (I Cor.) in this sense.

2. The Papal .iuthoriti/ to Dis.^olve a Non-Chri.':tian Marriage. — From the ecclesiastical decisions that liave been already quoted, it is clear that the Chtmsh