Folia Canonica 8. (2005)

STUDIES - Wojciech Kowal: Norms for Preparing the Process for the Dissolution of the Matrimonial Bon din Favour of the Faith

NORMS FOR PREPARING THE PROCESS FOR THE DISSOLUTION

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years, the Catholic party must still promise to maintain and practice the faith and the non-Catholic must always give assurance ‘to permit my spouse to practice the Catholic religion’.”38

Some commentators have argued that the problems associated with instances of lack of sincerity in making the promises are no longer relevant with respect to the question of the validity of the dissolution. In 1981, the Congregation responded to the request concerning the case of an unbaptized woman who contended that her marriage to a Catholic was invalid, because of the lack of sincerity in making the promises. The response was affirmative. The Congregation treated it as a question of proving the existence of one of the necessary conditions required by the 1973 Norms for the valid dissolution of the marriage in favour of the faith.39 However, it now seems that the qualification of the requirement of the cautiones has been changed from one affecting the validity of the act to one bearing on its liceity.40 Yet, even under the new legislation, the question whether or not insincerity of the promises, at least in particular cases, compromises the expected benefit for the faith of the Catholic party might be worth examining.

Other requirements for the liceity of the granting of the favour include that, at the moment of the grant, 1) there is no possibility of restoring the consortium of the conjugal life; 2) the petitioner was not the exclusive or prevailing guilty cause of the breakup of the conjugal common life, and the party with whom the new marriage is to be contracted or convalidated did not by his or her own fault provoke the separation of the spouses.41 There is a change in the new provisions: the previous norm simply stated that the petitioner must not be the guilty cause of the failure of the legitimate marriage.42 The present provision takes into account the possibility of some, though not prevailing, fault on the part of the petitioner.

In fact, as the 1983 Code does not place restrictions on a guilty person (or of a non-Catholic) against impugning the validity of his or her marriage or petitioning for the dissolution of a non-consummated marriage, the Congregation had been accepting petitions for dissolution of marriages in which both parties

38 Congregation for the Doctrine of the Faith, Notes Regarding the Documentary and Procedural Aspects of Favour of the Faith Cases, no. 5.

39 See Congregation for the Doctrine of the Faith, Response, 18 February 1981, in LE, vol. 6, no. 4833, col. 8141.

40 See J. Kowal, “Nuove ‘Norme per lo scioglimento del matrimonio in favorem fidei',” 493; Moneta, “Le nuove norme per lo scioglimento dei matrimonio in favore della fede,” 1339; Aznar Gil, “Nuevas normas sobre la disolución del vinculo matrimonial no sacramental,” 165; AMBORSKI, The Development of the Process for the Dissolution of the Matrimonial Bond in Favour of the Faith, 42.

41 See Potestas Ecclesice, art. 4, 8. Cf. Ut notum est, no. II, § 1, in LE, vol. 5, col. 6702 (English translation in WOESTMAN, Special Marriage Cases, 130).

42 See Ut notum est, no. II, § 3, in LE, vol. 5, col. 6702 (English translation in Woestman, Special Marriage Cases, 130).