SPECIAL MARRIAGE CASES-NOTES

DISSOLUTION OF THE MARRIAGE BOND

-The first important thing to note in the realm of the dissolution of matrimonial bond is the radical
difference dissolution has from ‘annulment’.
-In annulment the declaration of nullity is an official admission by the Church that what had been
held as a valid marriage was in fact not valid; ie, there was no marriage at all.
-In dissolution of marriage, however, the point of departure is the admission by the Church that the
marriage was actually a valid one and now the Church is breaking a once valid marriage so that the
parties may be free to validly re-marry.
-The Church holds that from a valid marriage, there arises between the spouses a bond which by its
nature is perpetual and exclusive (c. 1134).
-A valid marriage between two baptized persons is called ‘ratified’ and, after the occurrence of the
first conjugal act in a human manner, ‘consummated’ (matrimonium ratum et consumatum).
-A marriage which is ratified and consummated can be dissolved by no human power and by no
cause, except death (c. 1141) or presumed death of a spouse (c. 1707).
-However, there are three special circumstances in which the marriage bond may be dissolved; 1) a
non-consummated marriage, 2) a non-sacramental marriage in favour of faith and, 3) a natural bond
in ‘Pauline Privilege.’
-Only the Roman Pontiff has the powers to dissolve a valid marriage.
*The principle, ‘What God has joined, man must not separate’ refers to the marriage union.
Therefore, it is not lawful for man to separate those joined in marriage… What the Roman Pontiff
does in this regard is not done by human authority, but by divine, since he is truly called the vicar of
the true God, not of mere man.
-The plan of the dissolution of the marriage bond is treated in the Code in cc. 1141-1150 and in
1692-1696. Since the Code does not consider the dissolution of marriage in favor of faith, this is
considered lastly through the examination of other pontifical documents.

‘Ratified’ and Non-Consummated Marriage

- “A marriage which is ratified and consummated cannot be dissolved by any human power or by
any cause other than death.” (c. 1141).
-A ratified marriage, ie, a valid marriage between two validly baptized persons, is a sacramental
marriage.
-The baptism of both parties can be either prior to contracting the marriage, or subsequent to it. If
one or both of the parties were not baptized at the moment of the marriage, they contracted a natural
bond of marriage.
-With the valid reception of baptism by both parties this natural bond becomes sacramental, and the
marriage, which until that moment was natural, becomes ratified, ie, sacramental.
-Thus, a ratified marriage is a marriage between two baptized persons.
- “A non-consummated marriage between baptised persons or between a baptized party and an
unbaptized party can be dissolved by the Roman Pontiff for a just reason, at the request of both
parties or either party, even if the other is unwilling.” (c. 1142).
- Canon 1061 §1 already states that ‘A valid marriage between baptised persons is said to be merely
ratified, if it is not consummated; ratified and consummated, if the parties have in a human manner
engaged together in a conjugal act in itself apt for the generation of offsprings. To this act marriage
is by its nature ordered and by it the spouses become one flesh.’
-When considering c. 1142 it will be necessary to further define what is meant by consummation:
Consummation is the performance of a conjugal act by the spouses after the valid celebration of
marriage and in a human manner.
-Therefore, the conjugal act that consummate a marriage is one which is done after the valid
celebration of the marriage, if the couple has sexual encounters before the valid celebration of their
marriage, that is not consummation. The first sexual encounter which they will have after the valid
celebration of their marriage is what is considered as consummation.
-Moreover, the conjugal act should be done in a human manner. It is important to define what is
meant by the ‘human manner’.
-A human manner of performing the conjugal act is to perform it when both parties are fully
conscious and both put their will in the act. This is the same way any human act is determined.
Therefore, if one partner is under the influence of drugs or alcohol, the sexual act done thereafter is
not considered as consummation because one party lacks the full consciousness which is needed to
consummate the marriage. Secondly, if one party is forced into the conjugal act without his/her will,
that sexual encounter is not considered consummation of marriage.
-Moreover, the conjugal act which is performed in a human manner is supposed to be in itself
apt/open for the generation of offsprings.
-It is also very important to understand the meaning of this requirement for consummation of
marriage.
-The key term to be underlined is ‘in itself open’. There are some contraceptive methods that
prevent conception of children, but they act after the sexual act has been performed, yet the act was
IN ITSELF OPEN for procreation.
-For example, the use of the contraceptive pill… The pill will prevent conception by blocking the
sperm from fertilizing the ovary and this happens after the sexual act has already ended, but the
sexual act was IN ITSELF OPEN, for procreation.
-Yet the contraceptive method of using a condom if a different case because the condom is in effect
at the very performance of the sexual act, to the extent that the conjugal act IN ITSELF is NOT
open for creation.
-Therefore, in the use of contraceptive methods or anything that may prevent the generation of
offsprings, it is important to analyse the circumstances so as to determine whether the act was in
itself open for procreation or not. Even if the partners intended to prevent procreation by use of a
contraceptive method, if the method allowed the conjugal act to be in itself open for procreation,
then consummation has been done.
*Proof of non-consummation: Not without reason the Code establishes a presumption of law
based on normal human behaviour. “If the spouses have lived together after the celebration of their
marriage, consummation is presumed until the contrary is proven.” (c. 1061 §2).
-Non-consummation must be proven by cogent arguments that generate moral certitude that
consummation is not probable.
-There are three different modes of proof: Lack of opportunity, the physical argument, and the
moral argument.
a) Lack of opportunity: This proof consists in demonstrating that the couple after their marriage had
neither the time, nor the place to have sexual intercourse.
-If this is proven, all other arguments or proofs, eg, a physical examination, may be omitted as
superfluous.
b) Physical Argument: By means of a physical examination by medical experts it is demonstrated
that the woman is physically intact, or that from the state of the genital organs of the man or the
woman that they could not have complete sexual intercourse.
-Such an examination should be omitted when it is evidently useless, eg, that the woman was
previously married, or has subsequently lived with another man, or if the party declines to have
such an examination.
c) Moral Argument: This is the principal argument; it consists in the sworn depositions of the
parties and witnesses.
-It is to be noted that the moral argument can be itself sufficient to generate moral certitude if the
following elements are present: i) The concordant depositions of both parties, ii) Character
witnesses who know the parties, especially those having some knowledge concerning the non-
consummation. iii) Witnesses with information obtained when a non-consummation case was not
being considered, ie, tempore non suspecto. In this same line are documents or other indications
based on facts and circumstances that establish the presumption of the alleged non-consummation.
-If the parties disagree on the essentials, and if the petitioner lacks credibility, the moral argument
cannot constitute adequate proof.
*Just Cause:
-Since the dispensation is an exercise of the pope’s vicarious power, a just cause is necessary for
him to act validly.
-The cause must be proportionate to the gravity of the dissolution of the ratified marriage.
-In general, all just causes are ultimately the salvation of souls.
-According to the practice of the Roman Rota, the following are considered to be just causes, but it
is not a complete list: serious aversion or dislike of the couple without hope of reconciliation and a
successful marriage, fear of probable future scandal, discord and quarrels among the relatives, one
of the parties has contracted a civil marriage with a third party, contracting of an incurable disease
after the marriage, partial proof of defect of consent or of an impediment.
†The validity of the pope’s act of dissolving the marriage is dependent upon the objective non-
consummation of the marriage and the existence of a just cause.
-Thus, the dispensation is invalid if the facts are otherwise that alleged by the petitioners, ie, if the
ratified marriage was in fact consummated, and the truth is not disclosed.
-The pontifical dispensation which may be obtained would be null and void.
*Procedure: There are two stages or phases in super rato cases; the first takes place in the diocese
and consists in amassing the necessary proofs concerning non-consummation, the just cause for a
dispensation, and the recommendation of the diocesan bishop; the second phase consists in the
Congregation for Divine Cult and Discipline of the Sacraments’ evaluating the acts received from
the diocese for an eventual affirmative recommendation to the pope.
-The procedure, since it is for the granting of a favor, it is not a judicial one but an administrative
one. Therefore, it does not have a judge in the strict sense, but an instructor.
-The diocesan bishop of the petitioner by reason of domicile or quasi-domicile is competent to
accept the petition requesting this dispensation.
-When sending the report to the Congregation, the bishop should write his opinion (votum pro rei
veritate) which must cover two points; his judgement concerning whether non-consummation has
been proven, and secondly, concerning the existence of a just cause for granting the favor and
whether it is opportune to grant it.
*Ad Vetitum and Ad Mentem clauses
-The responses that come from the Roman Pontiff may contain one of these clauses.
These are prohibitions from the Roman pontiff for a party to pass to a new marriage.
-While the Roman Pontiff may grant the privilege of dissolution for a non-consummated
matrimony, he may attach a prohibition to pass to a new marriage on one or both parties.
A prohibition that comes Ad Veritum can only be removed by the Roman Pontiff himself if the
prohibited party wants to enter a new marriage.
-A prohibition that comes Ad Mentem can be removed by the diocesan bishop.
-The bishop is not to admit this party to a new marriage unless there has been an inspection done by
a medical expert to the fact that the person is now able to perform his/her matrimonial duties, or
unless that party has promised seriously to the bishop that he/she is now committed to perform
them.
-These prohibitions are put after the Roman pontiff has realised that the non-consummation of the
dissolved bond was caused by a fact which may persist and cause another non-consummation if the
party is to enter another marriage with the same personal condition.

THE PAULINE PRIVILEGE

-The Church’s teaching and practice of recognizing the dissolution of certain marriages contracted
by two non-baptized persons, after the conversion of one of the parties, with the right to marry
again is called the Pauline privilege, since it is based on the words of St. Paul: “To the rest I say- I
and not the Lord- That if any believer has a wife who is an unbeliever, and she consents to live with
him, he should not divorce her. And if any woman has a husband who is an unbeliever, and he
consents to live with her, she should not divorce him. For the unbelieving husband is made holy
through his wife. And the unbelieving wife is made holy through her husband. Otherwise, your
children will be unclean, and as it is, they are holy. But if the unbelieving partner separates, let it be
so; in such a case the brother or sister in not bound. It is to peace that God has called you.” (1 Cor
7:12-15).
-Scholars understand this passage in various ways, but since the 4 th century Christian tradition, with
some hesitation, has concluded from this passage that the Christian convert is free to contract
another marriage if the unbeliever refuses to cohabit peacefully.
-However, Paul’s words grant explicitly only a separation.
*For the valid use of the Pauline privilege three conditions are necessary: a) There is a valid
marriage between two unbaptised persons, b) One of these spouses is validly baptised, c) The
unbaptised spouse refuses either to physically cohabit or to peacefully cohabit ‘without offending
the creator.’
- “In virtue of the Pauline privilege, a marriage entered into by two unbaptised persons is dissolved
in favor of the faith of the party who received baptism, by the very fact that a new marriage is
contracted by that same party, provided the unbaptised party departs.” (c. 1143 §1).
-A marriage contracted before the baptism of either party is dissolved in favor of the faith (in
favorem fidei) by the Pauline privilege.
-This is the first form or mode of dissolution of marriage in favor of the faith cases.
-This expression is now used for the dissolution of other non-ratified or non-sacramental marriages
as will be seen later.
-Nevertheless, the expression ‘in favor of faith’ here is important, for it places the dissolution of the
convert’s marriage in its proper theological context.
-The use of the privilege favors the faith of the converts so that they can more easily live their faith.
*It is essential that only one of the spouses, who were unbaptised at the time of their marriage,
receives baptism. Once both of the spouses receive baptism, even subsequent to their final
separation, the Pauline privilege cannot be invoked. With the baptism of both spouses, even though
they were separated, their marriage become ratified (sacramental).
-What about valid baptism received outside the catholic church without conversion to the catholic
faith?
-Inspite of the fact that this question has long be disputed among authors, the Congregation for the
Doctrine of faith gave an affirmative response when asked whether the Pauline privilege could be
invoked in case of a marriage contracted by two unbaptised persons, and after their final separation
the wife was baptised in an Episcopalian (valid baptism) and the husband was a catechumen
seeking baptism in the catholic Church (Thus the husband can now marry freely because there is no
more marriage bond because the previous bond was dissolved by the marriage of his former wife in
the Episcopalian.).
-Gianfranco Girotti states that the 1983 Code extends the possibilities of the Pauline privilege and
differs from the 1917 Code. He bases his reasoning on the difference between the 1917 Code which
required that the person be ‘converted and baptised’, and the 1983 Code which speaks of the person
being baptised and does not mention conversion, ie, becoming a catholic.

*Departure of the Unbaptised Spouse: “The unbaptised party is considered to depart if he or she
is unwilling to live with the baptised party, or to live peacefully without offence to the Creator,
unless the baptised party has, after the reception of baptism, given the other just cause to depart.” (c.
1143 §2).
-Thus, in some cases the departure is physical, ie, the unbaptised party does not want to live at all
with the baptised spouse, eg, unjustly deserts the baptised spouse, contracts a new marriage or lives
with a third party and is unwilling to return to the baptised party, physically cannot resume
cohabitation.
-In other cases there is a moral departure in that the unbaptised person is willing to continue
conjugal life, but will not live in peace, without insult, offence to the Creator, eg, refuses to permit
the catholic party to practice his/her faith, refuses the children to receive catholic education, tries to
lead the catholic party into serious sin, by quarrels and provocation makes conjugal peace
impossible.
-The baptised party does not lose the right to invoke the Pauline privilege by continuing to live with
the unbaptised party.
-If at some later stage the unbaptised party departs, the privilege can be invoked provided that the
baptised partner has not caused the other person’s departure by his/her unjust reprehensible
behaviour after receiving baptism.
-If the baptised party is responsible for the departure, the Pauline privilege cannot be invoked, for in
such a case, it will reward the breaking up of the marriage.
-On the other hand, if the baptised party prior to baptism unjustly caused the departure of the other
person, the Pauline privilege can be invoked, because all sins and their punishments are remitted by
baptism.

*Interpellation: Before the baptised party can invoke the Pauline privilege, the unbaptised spouse
must be interpellated, ie, interrogated, in order to verify that the essential conditions for using the
privilege are present.
- “For the baptised person validly to contract a new marriage, the unbaptised party must always be
interpellated whether: 1º he or she also wishes to receive baptism, 2º he or she at least is willing to
live peacefully with the baptised party without offence to the Creator.” (c. 1144 §1).
-The unbaptised person must be asked whether he/she wishes to be converted and be baptised, and
if the answer is no, whether he/she will live peacefully without offending the Creator, with the
baptised spouse, ie, whether there is departure as explained previously.
-If the response to either of the two questions is affirmative, the Pauline privilege cannot be invoked
validly. The necessary or essential conditions are not present.
-If the unbaptised spouse answers no to both questions, the other party is free to invoke the Pauline
privilege and to enter a valid marriage with another person.
-Although the Code states that the interpellation is to be made after the baptism of the convert (c.
1144 §2), it is usually done with the ordinary’s approval prior to the catechumen’s baptism.
-The Code allows the interpellation to be done before the baptism for a serious reason. One serious
reason is the necessity of having moral certainty concerning the exercise of the essential conditions
prior to receiving the catechumen into the Church.
-If the other party has been baptised in the meantime, the Pauline privilege cannot be invoked.
-Another serious practical reason is that the other spouse is often interrogated during the deposition
seeking information concerning the party’s non-baptism.
-The authority responsible for the interpellation is the local ordinary of the convert. The unbaptised
person may be given a prior time to respond, eg, a month.
-However, in such a case, the person is told that the absence of a response within the allotted time
will be considered as a negative answer.
-Once the other party has responded negatively, either explicitly or tacitly by not answering within
the allotted time, or the interpellation was legitimately omitted, the baptised convert can exercise
his/her right to marry a catholic.
-If the unbaptised party responds positively to the interpellation but subsequently ‘departs’, the
catholic party can still invoke the Pauline privilege. The interpellation does not need to be repeated.
(C. 1146).
-Keeping in mind that the use of the Pauline privilege is to be in favor of faith of the convert, the
local ordinary can for a serious reason, allow the individual to marry another free person who is a
baptised non-Catholic or is unbaptised.
-In the case of an unbaptised, for the validity of the marriage, a dispensation from the impediment
of disparity of cult must be granted.
PROVISIONS FOR POLYGAMOUS MARRIAGES.
-Because of new pastoral problems accompanying the missionary expansion of the 16 th C, Popes
Paul III, Pius V and Gregory XIII gave broad faculties to the missions for the dissolution of
marriages in which one of the parties was not baptised or at least the parties has not lived together
after both of them were baptised.
-Paul III enacted the constitution Altitudo, which provided that converts with several wives, either
simultaneously or successively, if they did not remember who was the first wife, were permitted to
choose any one of their wives and contract marriage with her, and dismiss the other wives.
-If the Convert remembered who was the first wife, he had to choose her, unless the Pauline
privilege could be invoked.
-With this constitution, Paul III dissolved the first marriage without the necessity of interpellation, if
the necessary condition was present.

-St Pius V issued the constitution Romani Pontificis. Altitudo presented the missionaries with a real
problem because often the wife that wished to be baptised with the convert was not the first wife.
-The missionaries began to worry about the validity of the marriages of many of their converts.
-To solve this pastoral problem, Pius V permitted the faithful already baptised and those to be
baptised in the future to remain with the wife who was baptised with them, or would be baptised
with them and to dismiss all others.
-This privilege could be used if it would be very difficult for the man to separate from the wife
baptised with him or when it would be very difficult to find the first wife.
-Till now, these pastoral problems were mainly from India, New Spain, South America and the
Philippine Islands.

-Gregory XIII enacted the constitution Populis because of the pastoral problems caused by Africans
being taken slaves and separated from their husbands or wives.
-Special faculties were granted to local ordinaries, pastors, confessors of the Society of Jesus to
dispense African Christians, who before their conversion and baptism, had contracted marriage to
marry another Catholics.
-If it was possible, an effort was to be made to interpellate the spouse.
-If the investigation shows that the party could not be converted, the new marriage dissolved the
previous marriage, even if the first spouse had in the meantime been baptised.

-The 1983 Code has assumed the essential elements of these three Constitutions, and adapted the
rest to today’s circumstances.
- “When an unbaptised man who simultaneously has a number of unbaptised wives, has received
baptism in the Catholic Church, if it would be a hardship for him to remain with the first of the
wives, he may retain one of them, having dismissed the others. The same applies to an unbaptised
woman who simultaneously has a number of unbaptised husbands.” (C. 1148 §1).
-It is stated explicitly that this canon applies equally to men and women in the same circumstances.
-In this case it is not a question of the person dismissing all the spouses and choosing a completely
new person. The person should choose among the wives/husbands that one already have.
-To do this (choose a completely new spouse) it would be necessary to petition the Holy Father
through the Congregation of the Doctrine of the Faith.
-This canon contemplates simultaneous marriages, ie, polygamy or polyandry in the strict sense, not
successive marriages.
- “In the case mentioned in par 1, when baptism has been received, the marriage is to be contracted
in the legal form, with due observance, if need be, of the provisions concerning mixed marriages
and other provisions of law.” (C. 1148 §2).
-It is not required that the person choose to remain with a spouse also receiving baptism. Even if the
person choose to remain with the first spouse, consent is to be renewed according to canonical form
after the person’s baptism. All the requirements of law are to be observed depending on the
circumstances, disparity of cult, premarital instruction etc.
-Natural rights and obligations arising from common life and the generation of children do not
cease with the dissolution of the marriage. The local ordinary is to see to it that all provisions
demanded by justice, charity, and equity for the dismissed wives and their children are fulfilled. (C.
1148 §3).
- “An unbaptised person who, having received baptism in the Catholic Church, cannot re-establish
cohabitation with his or her unbaptised spouse by reason of captivity or persecution, can contract
another marriage, even if the other party has in the meantime received baptism, without prejudice to
the provisions of can 1141.” (c. 1149).
-If, because of captivity or persecution, religious or political, it is impossible for a baptised convert
to restore common life with the person married prior to the baptism of both, the convert can marry
again in the Church, even if the other spouse has in the meantime been baptised. In such a case (if
the other spouse has been baptised) there is a dissolution of a ratified marriage.
-This privilege cannot be used if both parties has sexual intercourse after the baptism of both, for
there would be a marriage that was both ratified and consummated.
-As with the Pauline privilege, the dissolution of the marriage is by a general provision of law, and
not by the personal intervention of the pope in a particular case.
- “In a doubt matter the privilege of the faith enjoys the favor of the law.” (c. 1150).
-This canon is an exception of the principle found in the Code: “marriage enjoys the favor of the
law. Consequently in doubt the validity of a marriage must be upheld until the contrary is proven.
(c. 1060).

DISSOLUTION IN FAVOR OF THE FAITH

-Just as the Church encountered a new pastoral situation concerning non-sacramental marriages in
the 16th C, this happened again in the 20th C.
-This was brought about by three factors: frequent Marriages between the baptized and the
unbaptized, divorce becoming commonplace, and the desire of divorced persons to celebrate a valid
marriage in the catholic church.
-Faced with this situation all the popes since Benedict XV have personally intervened to dissolve
valid non-sacramental or natural marriages in favor of the faith of one of the parties, or even in
favor of the faith of a third party.

*Preparation of Favor of the Faith Cases

-The dissolution of a marriage in favor of faith is an exercise of the pope’s vicarious authority and is
not delegated; each case is presented personally to the pope.
-Favor of the faith cases are examined by the Congregation for the Doctrine of faith (Evangelization
of peoples for mission territories) prior to their presentation to the Holy Father.
-For the dissolution of a marriage in favor of the faith three things must be proven: 1) The non-
baptism of one of the spouses during the whole time of the marriage, 2) non-use of marriage after
the baptism ‘perchance’ of the party who was not previously baptised, 3) The promise of both the
Catholic party and the non-Catholic party of the new marriage, if this party does not intend to
become catholic, that the catholic party can freely practice the faith and baptize and educate the
children as Catholics.
-For the preparation of favor of the faith cases the instruction Ut Notum Est and the attached
Procedural Norms should be followed exactly as they are.
-In the acts presented to the Congregation, it must also be included whether the person whom the
petitioner wishes to marry is free to marry.
-If the person the petitioner wishes to marry is a non-Catholic, the freedom of the Catholic to
practice the faith and to baptise and raise their children as Catholics is needed.
-Thus there must be a written promise by both parties to this effect.
*No Second Dispensation from Disparity of cult
-Even though there is no doubt concerning the authority of the Roman Pontiff to dissolve for a just
cause any non-sacramental marriage, it is contrary to the policy of the Congregation of the Doctrine
of Faith to recommend to him the dissolution of a marriage contracted with a dispensation from the
impediment of disparity of cult in order to contract another legitimate, ie, non-sacramental marriage
with another dispensation from the impediment.
-In other words, if the first marriage was in the Church with a dispensation from the impediment,
the favor will not be granted to contract a marriage with a non-baptised person in the Church.
- “A marriage between a catholic and a non-baptised person entered with a dispensation from the
impediment of disparity of worship can be dissolved. As long as the conditions set forth in N. 2 and
3 exist, and it is established that the catholic party, for special conditions of the region, especially
the small number of Catholics there, could not avoid the marriage and could not lead in it a life in
conformity with the catholic religion. In addition, it is necessary to inform the Sacred Congregation
concerning the notoriety of the celebrated marriage.” (Art 4).
- “The dissolution of a legitimate marriage entered with a dispensation from the impediment of
disparity of worship will not be granted to a catholic partner to enter a new marriage with an
unbaptised person, who does not become a convert.” (Art 5).
- “A dissolution of a legitimate marriage, which was contracted or validated after obtaining the
dissolution of a previous legitimate marriage, will not be granted.
*After the promulgation of Ut Notum Est, the Congregation clarified these norms in private
responses. When asked for an interpretation of Art 4, they replied:
a) The non-baptised party cannot petition a dissolution of the marriage unless he/she is converted.
b) The catholic party can petition a dissolution of marriage, but only if he/she intents to ender a new
marriage with a catholic party, or with a non-catholic party who is validly baptised.
-In other words the law intends to impede a new marriage from being contracted with a dispensation
from disparity of worship a second time.
+The Conference of Bishops of Zambia requested the abrogation of article 5. This was the occasion
for the congregation to explain this norm and its theological foundation:
-The reason is evident: We are treating in the case of article 5 of a marriage which was celebrated
with a dispensation from the impediment of disparity of cult and then dissolved. The wish is to
avoid the celebration of a new marriage always with a dispensation from the impediment of
disparity of cult which could undergo the same outcome, and thus forever.
-Another reason could be added, that of avoiding scandal. The contrary practice could allow the
same individual to marry in Church validly several times with successive dissolutions of previous
marriages. Thus could be easily an occasion of scandal among the faithful.
*The Bishop’s Votum: The bishop is responsible for a written opinion (votum pro rei veritate) in
which he recommends or not the granting of the favor.
-He should cover the following points; 1) Whether the non-baptism has been proven; 2) whether
there is a just cause for granting the dissolution; 3) whether the parties are worthy; 4) whether there
would be scandal if the favor is granted in this particular case, and why; 5) Whether the granting of
the favor would bring scandal in the bishop’s diocese because it would bring disrespect upon the
Church or lead people to think that the Church accepts divorce and why.

SEPARATION WHILE THE BOND REMAINS

-Since the common life and welfare of the family is of great importance not only to the married
couple but to the whole Christian community, it is to be expected that the Church’s law considers
separation of the spouses while the bond endures.
- “Spouses have the obligation and right to maintain their common conjugal life, unless a lawful
reason excuses them.” (c. 1151).
-Common conjugal life or conjugal living, which should be the natural consequence of ‘the
matrimonial covenant, by which a man and a woman establish between themselves a partnership of
the whole life, is by its nature ordered to the well-being of the spouses and to the procreation and
education of children.
-The right and duty to preserve conjugal life have their source not in ecclesiastical positive law, but
in natural law which leads a couple to marry and to freely make a matrimonial covenant
establishing a partnership of the whole life.
-These rights and obligations are acknowledged in both canon law and civil law of various nations.
-However, there may exist legitimate reasons for a couple not to live together, eg, health, education,
physical or spiritual danger to one of the parties, etc.
-A temporary separation is permitted by mutual consent for a lesser cause than perpetual separation.

*Adultery: Perpetual Separation.

- “It is earnestly recommended that a spouse, motivated by Christian charity and solicitous for the
good of the family, should not refuse to pardon an adulterous partner and should not sunder the
conjugal life. Nevertheless, if that spouse has not either expressly or tacitly condoned the other’s
fault, he or she has the right to server the common conjugal life, provided he or she has not
consented to the adultery, nor been the cause of it, nor also committed adultery.” (c. 1152 §1).
-In the case of adultery, the 1917 Code spoke only of the right of the innocent party to perpetual
separation. However, the commentators maintained that there could be an obligation out of charity
to forgive the guilty party.
-The present Code earnestly recommends forgiveness.
-Unquestionably, Cicero’s dictum summum ius, summa iniura is pertinent in the delicate matter of
the interpersonal relationship of husband and wife in which charity should transcend and outshines
justice.
-No two cases are alike; examples of two extremes would be on the one hand a single act in secret
without notoriety and a grave damage to the innocent party and children, and on the other repeated,
notorious, promiscuous acts with grave damage to the innocent party and children.
-The demands of charity depend on the individual case.
-A truly innocent spouse is gravely offended by adultery and hence should not be made to bear the
entire burden of trying to repair the rupture of the marital community.
-Since this is a question of a right, it is necessary to determine what is meant by adultery, in order to
know when the party has lost his/her right.
-For the innocent party to have the right to perpetual separation and the guilty party to lose the right
to cohabitation, the adultery must have been:
a) formal, ie, gravely sinful-knowingly and freely committed.
b) consummated, ie, a complete act of sexual intercourse, with a person of either sex or an animal.
c) certain, ie, there is no doubt that the act was actually committed, ie, not probable adultery.
d) not condoned, ie, the innocent party did not forgive the adulterous spouse.
e) not consented to, ie, the other party did not approve or agree to his/her spouse’s sinful behavior.
f) not caused by the other party, eg, by the unjust refusal to maintain common life or to have
conjugal relations.
g) not compensated, the other party did not also commit adultery.
* “Tacit condonation occurs if the innocent spouse, after becoming aware of the adultery, has
willingly engaged in a marital relationship with the other spouse; it is presumed, however, if the
innocent spouse has maintained the common conjugal life for six months, and has not had recourse
to ecclesiastical or civil authority.” (1152 §2)
-By condonation the innocent spouse loses the right to perpetual separation. If it were otherwise, the
offended party could always hold the threat of separation over the head of the guilty party forever.
-Forgiveness is forgiveness; if adultery is committed again after condonation, the innocent party
recovers the right to perpetual separation.
-Condonation is explicit if the innocent party expresses it by words or other signs. It is tacit if the
person knowingly continues to live as husband and wife with the spouse, who was unfaithful.
-If the innocent party, within 6 months of learning of the adultery, has not separated or had recourse
to Church or civil authorities, there is a presumption of law of condonation. As with all
presumptions of law, the contrary is open to proof.
- “Within six months of having spontaneously terminated the common conjugal life, the innocent
spouse is to bring a case for separation to the competent ecclesiastical authority. Having examined
all the circumstances, this authority is to consider whether the innocent party can be brought to
condone the fault and not prolong the separation permanently.” (c. 1152 §3).

*Temporary separation:
- “A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise
makes the common life unduly difficult, provides the other spouse with a reason to leave, either by
a decree of the local ordinary or, if there is danger in delay, even on his or her own authority.” (c.
1153 §1).
-The 1917 Code listed a number of things that would give the innocent spouse a legitimate reason
for separating: if the other party joined a non-Catholic sect, educated children as non-Catholic, lived
a criminal life, made life too difficult by cruelty, and other similar things.
-The present Code speaks of grave danger of soul or body. Such danger can exist, even if the party
causing them is not guilty of sin, eg, because of a mental illness, personality disorder, alcoholism,
chemical dependence.
-In the case of imminent danger, one may separate on one’s own authority. If there is no immediate
danger, approval of the local ordinary should be sought.
- “In all cases, when the reason for separation ceases, the common conjugal life is to be resorted,
unless otherwise provided by ecclesiastical authority.” (c. 1153 §2).
-Except in the case of adultery, with the cessation of the legitimate cause for separation, the parties
should per se restore common life.
-However, in practice this may be humanly impossible. In such a case the proper ecclesiastical
authority has the power to make the appropriate decision.
- “When a separation of spouses has taken place, appropriate provision is always to be made for the
due maintenance and upbringing of the children.” (c. 1154).
-The obligation from natural law towards the other spouse and the children do not cease with
separation.
-This is especially true concerning the adequate support and education of the children.
-Since ecclesiastical tribunals today do not have co-active power to implement their decision, the
party usually seeks a just provision from civil courts. Unfortunately, it is not infrequent that the just
orders of civil courts are not observed in these matters.
- “The innocent spouse may laudably readmit the other spouse to the conjugal life, in which case he
or she renounces the right to separation.” (c. 1155).
-If, following legitimate separation, the innocent party freely restores common life, he/she loses the
right to separation.
-The right to separation is regained, if a legitimate cause, the same as the first time or a different
one, subsequently arises.

-The personal separation of baptised spouses is decided by a decree of the diocesan bishop, or by
the judgement of a judge.
-The diocesan bishop of the couple’s domicile or quasi-domicile is the competent authority.
- “Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will
be a civil judgement not contrary to divine law, the bishop of the diocese in which the spouses are
living can, in the light of their particular circumstances, give them permission to approach the civil
courts.” (c. 1692 §2).
-If the ecclesiastical decision has no civil effects, it will often be practically useless to have a church
trial. In such cases the diocesan bishop may permit a Catholic to approach a state court, unless the
sentence is foreseen to be contrary to divine law.
THE CONVALIDATION OF MARRIAGES
-The invalidity of a marriage can come from three different sources: A diriment impediment which
renders a person unable to contracting; A defect of consent of one or both parties, either consciously
or unconsciously one or both parties could not or did not consent; A defect in the required legal
form for contracting marriage.
-Thus, for marriage to be valid; i,e, to come into existence, the couple must exchange their consent
lawfully or legitimately, otherwise there may be an appearance of a marriage, but not a marriage.
-As with other human acts, the act of establishing a marriage covenant can fail to achieve its goal,
i.e, a marriage. In such a case there is an appearance of a marriage, which is not in fact a marriage.
It is an invalid marriage, which is called a putative marriage if it is celebrated in good faith by at
least one of the parties, until both parties are certain that it is null.
-The Church, both by her law and pastoral care, seeks to furnish for the Christian faithful both prior
to and after marriage the assistance by which the married state is preserved in its Christian character
and develops in perfection (cf c. 1623).
-When an existing marriage is found to be invalid, various courses of action are available according
to the circumstances, and all should be carefully considered before compromising the matter in any
way. Never be hasty to validate a marriage; and never be hasty in informing the party that his or her
marriage is invalid.
*A marriage that is invalid can become valid:
a) through a simple validation or simple convalidation; that is, through the action of at least one of
the parties of the marriage making an act of matrimonial consent. This can be done in certain cases
when the impediment or defect of consent, causing the invalidity has ceased to exist, if the
impediment or defect of consent cannot be proven to exist.
b) through a new celebration of the marriage using canonical form once the invalidating
impediment or defect of consent ceases, or if the marriage was invalid because of the defect of
canonical form or a complete absence of canonical form; in these cases it is best not to speak of a
validation, but a new celebration.
c) through a sanatio in radice (radical sanation or retroactive validation) without the renewal of the
marriage consent by the parties, through an action of a competent authority removing the obstacle to
the existing consent, which then has its natural effect, which is marriage.

Simple validation
- “To convalidate a marriage which is invalid because of a diriment impediment, it is required that
the impediment ceases or is dispensed and that at least the party conscious of the impediment
renews consent.” (c. 1156 §1).
- “Ecclesiastical law requires this renewal for the validity of the convalidation even if each party
gave consent at the beginning and did not revoke it afterwards.” (§2).
-This canon consider validation by renewal of consent in a marriage which was invalid because of a
diriment impediment.; that is, one that renders a person unable to contract validly either any
marriage, or marriage with a particular person.
-Before the marriage can be validated, the person has to be able to marry. This can happen only if
and when the impediment ceases. In those cases in which the impediment cannot naturally cease or
in which a dispensation cannot be or is never granted, e.g, consanguinity in the direct line, the
marriage cannot be validated.
-Once the impediment no longer exists, either by its cessation or dispensation, the person or persons
are no longer unable to marry, either in general of any marriage or of a particular marriage;
consequently they can validly marry.
-In order to validate a marriage which was thus invalid, at least the party who was aware of the
impediment must renew consent. Without renewal of consent the marriage is not validated through
a simple validation.
-However, it is not required that both parties renew consent, the Code states that “At least the party
who is aware of the impediment renew consent.” Thus, the party who is aware of the invalidity
because of the impediment, which has now ceased, e.g, the prior bond ceasing by the death of the
former spouse, is not obliged to inform the other party of the invalidity, and can validate the
marriage by renewing consent privately.
-This canon must be understood in light of c. 1158 which distinguishes between public impediments
and impediments which are occult.
-The requirement that the previously given consent be renewed for validity of the validation is only
of ecclesiastical law. Consequently, two unbaptized persons in a marriage, that is invalid because of
an impediment which ceases, are not held to the renewal of non-revoked consent for their marriage
to be validated.
- “The renewal of consent must be a new act of the will concerning a marriage which the renewing
party knows or thinks was null from the beginning.” (c. 1157).
-This canon requires for the renewal of consent, a ‘new act of will.’ The original act of the will,
even though the law presumes that it continues to exist until its revocation is proved, is not
sufficient for a simple validation. The person knowing or thinking that the marriage is null must
make a new act of the will in order to validate the marriage.
-The new act of the will must be distinct from the one made at the time of the celebration of
marriage.
-In order for a person to make a new act of the will, it is necessary that he/she knows that the
marriage is null, or think that the marriage may be null, or at least know that the Church says it is
null.
-Consequently a priest knowing that a marriage is null, but not wanting to disturb the parties, would
act in vain if he grants or obtains a dispensation for an impediment without telling the parties, and
then invite them for a special blessing and has them again exchange marriage consent. How could
they, in such circumstances make a new act of the will, which must be independent from the
original act at the time of the marriage?
- “If the impediment is public, both parties must renew the consent in canonical form...” (c. 1158
§1).
- “If the impediment cannot be proven, it is sufficient that the party conscious of the impediment
renews the consent privately and in secret, provided that the other perseveres in the consent offered;
if the impediment is known to both parties, both are to renew the consent.” (c. 1158 §2).
-If the impediment is public, it means it can be proven in the external forum that the marriage
contracted according to proper form is null. Thus the law requires that the renewal of consent be
according to canonical form.
-If the impediment cannot be proven in the external forum, the marriage cannot be proven to be null
because of the impediment. Consequently, once the marriage is no longer impeded, it can be
validated by the parties renewing their consent privately and secretly without canonical form; that
is, with no witnesses.
-If both know about the invalidity, both must make a new act of consent. If only one knows, that
party alone can renew consent, if the consent of the other party has not been revoked.
- “A marriage which is invalid because of the defect of consent is convalidated if the party who did
not consent now consents, provided that the consent given by the other party perseveres.” (c. 1159
§1).
- “If the defect of consent cannot be proven, it is sufficient that the party who did not consent gives
consent privately and in secret.” (§ 2).
- “If the defect of consent can be proven, the consent must be given in canonical form.” (c. 1159
§3).
-Since it is consent of the parties that makes the marriage, if the marriage is invalid because of a
defect of consent, it can be validated only if the person(s) not properly consenting makes the act of
consent.
-This canon speaks in broad terms of a marriage which is invalid because of defect of consent.
Consequently, it includes all the defects of consent which invalidate a marriage, e.g, lack of
sufficient use of reason, error, simulation etc.
-If only one party did not give the necessary consent, to validate the marriage, it is sufficient for that
party to make a valid act of the consent, provided the consent of the other party still exists.
-However, if the defect of consent can be proven in the external forum, the law requires that it be
renewed according to canonical form.

New celebration of the Marriage

-“A marriage which is null because of defect of form must be contracted anew in canonical form in
order to become valid...” (C. 1160).
-A marriage may be invalid because the law requiring canonical form was not observed:
a) either if there was a total lack of form, that is, the canonical form was omitted. This is the case in
which at least one of the persons is a Catholic bound by the law of canonical form, and the marriage
takes place without a dispensation from form and there is no semblance of canonical form, e.g,
before a civil official, a non-Catholic minister.
b) Or if there is lack of substantial form. In this case there was an appearance of canonical form, but
in fact an essential element was lacking; that is, the priest or deacon did not have the faculty to
assist at the marriage, the necessary two witnesses were not present, the officiant did not ask for and
receive the consent, the officiant or the witnesses did not have the use of reason at the moment of
the celebration.
-Such marriages as with the situations above are to be celebrated anew, following the required
canonical form, for them to be valid.

Radical Sanation (Sanatio in Radice) (Retroactive validation)

-Sometimes it happens that matrimonial consent, which is of itself naturally sufficient for the
bringing into existence a marriage, cannot have its natural effect either because one or both of the
persons are not ‘legally capable’ of giving consent; that is, they are unable to do so because of a
diriment impediment, or because the consent was not ‘lawfully manifested’, the legal form required
for validity of marriage was not observed.
-In such a case the marriage in question is invalid because of a legal obstacle or barrier to the
parties’ consent having its natural effect.
-The marriage is invalid because of: either diriment impediment, lack of valid form, or both
diriment impediment and lack of valid form.
-A radical sanation is an act of the competent authority which removes the obstacles impeding the
consent of the parties from having its natural effects.
-With this removal the marriage becomes valid from the moment of the elimination of the obstacle,
and not retroactively to the moment in which the consent was given.
-To say that the marriage was then valid from the time of the exchange of consent is impossible; the
past cannot be changed; the marriage was initially either valid or invalid.
-However, by a fiction of law the effects of the marriage are considered to exist from the moment of
consent. It is in this there is retroactivity; e.g, the children are considered by law to be legitimate,
even though they were born before the marriage and were in fact illegitimate at the time of their
birth.
-A sanation is said to be perfect if both parties are dispensed from renewal of consent, and if there is
retroactivity of all the effects to the time of the marriage; otherwise the sanation is imperfect.
- “The radical sanation of an invalid marriage is its convalidation without the renewal of consent,
which is granted by competent authority and entails the dispensation from an impediment, if there is
one, and from canonical form, if it was not observed, and the retroactivity of canonical effects.” (c.
1161 §1).
- §2 “Convalidation occurs at the moment of the granting of the favor. Retroactivity, however, is
understood to extent to the moment of the celebration of the marriage unless other provisions are
expressly made.”
- §3 “A radical sanation is not to be granted unless it is probable that the parties wish to persevere in
conjugal life.”
- A radical sanation differs from a simple validation in that, while the latter required renewal of
consent by at least one of the parties, the former does not require any renewal of consent. However,
for validity it is required that: a) both parties must have given matrimonial consent, which of itself
was valid; b) The consent must have been manifested externally, either by observing canonical form
or in some other fashion; that is, there must be an appearance or semblance of a marriage
celebrated. c) the consent of both parties continue to exist; that is, neither person retracted or
revoked matrimonial consent.
-Even if both parties knowingly contract an invalid marriage, their matrimonial consent may be in
itself valid, because ‘the knowledge of or opinion of a nullity of marriage does not necessarily
exclude matrimonial consent. (c. 1100).
-In granting the radical sanation the competent authority: a) dispenses from any diriment
impediment that may exist, b) dispenses from canonical form, if it was not observed or lacked an
essential requirement, c) by a fiction of the law, establishes that the canonical effects of marriage
exist retroactively from the moment of the original unrevoked matrimonial consent.
- The Code speaks of a radical sanation as a favor. It is not a right which a person may claim in
justice, but a grant freely bestowed at the discretion of a superior acting out of mercy, kindness,
equity for the salus animarum.
-In the invalidity was caused by a diriment impediment of ecclesiastical law, the impediment may
be dispensed before the sanation.
-If, however, the invalidity results from an impediment of natural law or of divine positive law, e.g,
marriage bond, absolute and perpetual importance, consanguinity in the direct line, the sanation can
be granted only when the impediment no longer exists (in those instances when this is possible) e.g,
by the death of the spouse of the person bound by the impediment of an existing marriage bond or
the extraordinary cure of importance. It is evident that consanguinity in the direct line cannot cease.
(cf. C. 1163 §2).
- “A sanation can be granted validly even if either or both of the parties do not know it;
nevertheless, it is not to be granted except for a grave cause.” (1164).
-Again, one party may desire the validation of the marriage, while the other, although persevering in
the consent previously given, refuses to renew consent according to canonical form. In such a
situation, a simple validation is impossible, but the first party may seek a radical sanation.
- All diocesan bishops have, from the Code, the authority to grant a sanatio in individual cases.
Thus, a bishop could not by one act grant a sanation to all the null marriages because of defect of
form in his diocese or parish.
-In the case of invalid mixed marriages, the prescriptions of canons 1086 and 1125 must be
observed. This requirement is for lawfulness, not for validity.
-If there is a question of an impediment whose dispensation is reserved to the Holy See, the
diocesan bishop does not have the authority to grant sanation. Thus, for example, the bishop cannot
grant a sanation to a person invalidly married because of the impediment of Holy orders, etc. (cf C.
1165 §2).
-The same limitation exists for the impediment of natural law or divine positive law which ceased to
exist. Thus, even after the death of the previous spouse of one of the parties, the bishop cannot grant
a sanation for their marriage; it is reserved to the Apostolic See.

PRESUMED DEATH OF A SPOUSE.

The Code outlines the process of attaining moral certitude of the death of a missing spouse when no
authentic document can be found to prove the fact of the death.
-In Zimbabwe we had such cases during the liberation war, the army troops who went to DRC and
never came back, and the recent political abductions of activists who disappear and their
whereabouts are not known. While the fact of their death may not be proven with official authentic
documents, there may be indications leading to the moral certitude of their death.
-This process is initiated by the surviving spouse who wishes to ender a new marriage.
-But since the promulgation of the 1983 Code, no legal developments have taken place concerning
this process; partly because the issue only has one canon treating it in the whole code, and partly
because such cases have been very rare and are becoming less and less visible in canonical
tradition.
- Canon 1707 §1 states that “When the death of a spouse cannot be proven by an authentic
ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage
until after the diocesan bishop has issued a declaration of presumed death.”
-The partner who wishes to marry after the death of a spouse is the object of the special pastoral
solicitude of the Church. Freedom to marry is normally established by an authentic ecclesiastical or
civil document certifying the death of the other spouse.
-If the party has no authentic document proving the death of the other spouse, the Church
establishes the freedom of the party to marry by issuing a declaration of the presumed death of the
other spouse.
-The effect of this declaration is that the party is permitted to enter a new marriage.
-A declaration of presumed death does not dissolve a marriage. Only death can dissolve a ratified
and consummated marriage.
Therefore, if a spouse who was presumed to be dead is later found to be alive, the other party must
separate from the second partner and return to the first spouse.
-In this case, the bond of the first marriage never in fact ceased to exist because the absent spouse
was not dead, and the second marriage is invalid because of the impediment of the prior bond.
- “The diocesan bishop is able to issue the declaration mentioned in paragraph one only if, after
having carried out appropriate investigations, he attains moral certitude of the death of the spouse
from the depositions of witnesses, from rumour, or from evidence. The absence of a spouse alone,
even for a long time, is not sufficient.” (§2).
-Let us always remember that moral certitude is exactly what it is; ie, a state of mind which
excludes all other reasonable doubts or probabilities, yet in arriving at such a conclusion, moral
certitude is derived out of probabilities which may later be proven wrong by facts. Moral certitude
only permits the judge to act in good conscience, but it can be proven wrong by more convincing
evidence.
-The diocesan bishop, either personally or through his delegate, is to conduct the investigations
necessary to arrive at moral certitude concerning the death of a spouse. The bishop may conduct
these investigations by means of an administrative process or a judicial process, but the
administrative process is the ordinary and more convenient way to proceed.
-The depositions of at least two witnesses who knew the deceased and who agree on the fact of
death, the place of death, and the circumstances of death provide the best evidence for a declaration
of presumed death.
-Lacking this evidence, the testimony of hearsay witnesses who learned of the death at a non-
suspect time, the use of presumptions regarding the age, the condition of health, and the moral
character of the person, as well as a study of the circumstances of the disappearance of the person, a
respectable rumour of death, and enquiry through newspaper notices and other social media
platforms nowadays may all help provide the moral certitude the bishop needs to presume that the
spouse is dead. Long time absence by itself, without the support of other evidence, is not a
sufficient criterion in canon law for a presumption of death, even though this criterion often suffices
in civil law.
- “The bishop is to consult the Apostolic See in uncertain and complicated cases.” (§3).
-If, after carrying out the investigations, the bishop still cannot arrive at moral certitude of the death
of a spouse, the bishop is to consult the congregation of Divine Worship and the Discipline of the
Sacraments.