Special Situations In Marriage

By DON FIER

As we saw last week, it is not uncommon in contemporary times for members of the Catholic faithful to enter into interreligious marriages. These marriages are classified in two ways by the Church: mixed marriage (between a Catholic and a baptized non-Catholic) and marriage with disparity of cult (between a Catholic and a non-baptized person).
The Church’s preference has always been that Catholics marry other Catholics who share the fullness of the faith, but she also recognizes that “difference of confession between the spouses does not constitute an insurmountable obstacle for marriage” (Catechism of the Catholic Church [CCC], n. 1634).
Those who enter into such unions, however, have increased risk for disunity in the heart of their home and are not as well-equipped to pass along one confession of faith to their children.
Express permission is necessary from proper ecclesiastical authority for the liceity of a mixed marriage. It can only be granted if there is “a just and reasonable cause” and as summarized by Fr. John A. Hardon, SJ, this permission assumes that “the Catholic partner will be free to practice his or her faith, that all the children will be raised Catholic, and that both parties do not exclude the divinely revealed purposes and properties of a valid marriage” (The Faith, p. 139).
For a marriage with disparity of cult, express dispensation is required both for liceity and validity and the union entered into is a non-sacramental, natural marriage.
As St. Paul proclaimed to the people of Corinth, the Christian spouse in a marriage with disparity of cult has a particular task with regard to his or her non-Christian spouse: “For the unbelieving husband is consecrated through his wife, and the unbelieving wife is consecrated through her husband” (1 Cor. 7:14).
Although the challenges can be great in such marriages, “it is a great joy for the Christian spouse and for the Church if this ‘consecration’ should lead to the free conversion of the other spouse to the Christian faith” (CCC, n. 1637). The Catechism goes on to affirm that such a happy conversion can most effectively be accomplished through the Christian spouse’s unwavering daily witness of “sincere married love, the humble and patient practice of the family virtues, and perseverance in prayer” (ibid.).
Let us now look at an unfortunate situation that is quite common today, that of Catholics who have fallen away from the practice of the faith and have subsequently married outside the Church without giving a second thought to proper canonical form or obtaining a dispensation. The supposed marriages these couples have entered into are invalid — the man and woman are not married in the eyes of God and the Church.
Furthermore, suppose that at a later time the fallen-away Catholic desires to return to the Church. A likely scenario might be when a couple welcomes their first child into the world and wishes to have the baby baptized and raised in the Church.
Upon approaching a parish priest, they discover the facts surrounding their marital status and furthermore, that they cannot receive the sacraments until the matter is remedied. Does the Catholic Church have a procedure or process that allows the marriage to be validated?
Fortunately, the Church has the necessary procedures to help couples in invalid marriages get them validated (assuming there are not indispensable impediments which make marriage impossible). The 1983 Code of Canon Law (CIC) defines two ways: simple convalidation (canons 1156-1160) and radical sanation (canons 1161-1165).
As defined in the second edition of Code of Canon Law Annotated, simple convalidation “consists in the renewal of marriage consent by one or both parties, after the reason for nullity has ceased” (p. 898). “The renewal of consent must be a new act of the will” (CIC, canon 1157). Radical sanation of an invalid marriage, on the other hand, “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” (CIC, canon 1161 §1).
Let us first consider simple convalidation. For a marriage that is null due to a diriment impediment (see volume 150, n. 16; April 20, 2017 for a discussion of diriment impediments), there must be certainty that the impediment no longer exists or that it has been properly dispensed. Depending on the circumstances, either one or both parties must renew consent (see CIC, canons 1556 § 1; 1158 § 1).
If the marriage is invalid due to defect in form, it “must be contracted anew in canonical form in order to become valid” (CIC, canon 1160). In other words, the couple must appear before an authorized priest or deacon — along with two witnesses — and renew their wedding vows. The couple’s marriage technically comes into existence with the renewal of consent at the time of the convalidation.
What happens if one spouse will not cooperate in seeking to convalidate an invalid marriage, for example in a mixed marriage or a marriage with disparity of cult where the non-Catholic partner has no interest in having the marriage recognized by the Church?
This is where a radical sanation may provide the solution. Interesting to note is that in its Latin roots, the term “radical sanation” (sanatio in radice) means “healing in the root,” and indeed the granting of a sanation heals an invalid marriage retroactively from the moment the spouses gave their consent.
“A sanation can be granted validly even if either or both of the parties do not know of it” (CIC, canon 1164).
However, there are conditions: There can be no indispensable impediments, the consent of both spouses must not be in question, and “it is probable that the parties wish to persevere in conjugal life” (CIC, canon 1161 § 3). In other words, the marriage must be on good terms.
Likewise, the granting of a radical sanation requires that the Catholic partner promises that he or she will remove dangers from defecting from the faith and will do all in his or her power to ensure offspring are baptized and brought up in the Church.
Is it possible to terminate a marriage? The 1983 Code of Canon Law is clear in stating that “a marriage that is ratum et consummatum [ratified and consummated] can be dissolved by no human power and by no cause, except death” (canon 1141).
As expressed by Fr. Hardon in the Basic Catholic Catechism Course (BCCC): “No ecclesiastical power can end a valid and consummated sacramental marriage” (p. 181). This infallible teaching follows from one of the essential properties of marriage — indissolubility — which Christ Himself affirmed when He said: “They are no longer two but one flesh. What therefore God has joined together, let not man put asunder” (Matt. 19:6; Mark 10:9).
The code states, however, that “a marriage entered into by two non-baptized persons is dissolved by means of the Pauline privilege in favor of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs” (canon 1143 § 1).
This basis to dissolve the marriage bond between two persons who were not baptized at the time of marriage has its basis in a Pauline letter: “If any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him….But if the unbelieving partner desires to separate, let it be so; in such a case the brother or sister is not bound. For God has called us to peace” (1 Cor. 7:13, 15).
Fr. Hardon gives an excellent explanation of the Pauline Privilege which deserves being quoted in its entirety:
“A valid and consummated legitimate marriage may be terminated by the Pauline Privilege ‘in favor of the faith’ (cf. 1 Cor. 7:15) when, on the Baptism of one spouse, the other refuses to live peacefully with the new Christian. In such a case, the baptized party is free to separate and seek a new spouse. If marriage ensues, the earlier marriage ends. Then, and only then, is the non-believing spouse free to marry again. Intervention of the Church in cases involving the Pauline Privilege only concerns verification of a fact, similar to an intervention to verify the fact of death which also ends a marriage.
“It is not the intervention of ecclesiastical authority which ends the marriage, but a fact consisting of two elements: the refusal of the non-Christian spouse to live peacefully with the baptized spouse, and the contracting of a new marriage by the baptized spouse” (BCCC, p. 181).

The Permanence Of Marriage

Moreover, “for a just cause, the Roman Pontiff can dissolve a non-consummated marriage between baptized persons or between a baptized party and a non-baptized party at the request of both parties or of one of them, even if the other party is unwilling” (CIC, canon 1142).
This rarely happens and applies only if the marriage has not been consummated. Fr. Hardon gives an example of when it might be invoked:
“Should one spouse, after marrying, but before consummation, decide his or her vocation is religious life or the priesthood, such a marriage may be terminated by the Pope” (BCCC, p. 181).
Essential to note is that no concessions involve dissolution of a consummated sacramental marriage nor is authority ever conceded to the spouses themselves to terminate their marriage. “In this way, the permanence of marriage as God instituted it and as Christ dignified it as a Sacrament of the New Law remains intact” (ibid.).

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(Don Fier serves on the board of directors for The Catholic Servant, a Minneapolis-based monthly publication. He and his wife are the parents of seven children. Fier is a 2009 graduate of Ave Maria University’s Institute for Pastoral Theology. He is a Consecrated Marian Catechist.)