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

91

extrinsic indissolubility.5 This statement echoes the teaching of Pope Pius XII expressed in his 1942 Allocution to the Roman Rota that

a ratified and consummated marriage is by divine law indissoluble, since it cannot be dissolved by any human authority (can. 1118); while other marriages, although intrinsically indissoluble, still do not have an absolute extrinsic indissolubility, but, under certain necessary conditions, can (it is a question, as everyone knows, of relatively rare cases) be dissolved not only by virtue of the Pauline privilege, but also by the Roman Pontiff in virtue of his ministerial power.6

According to the traditional distinction, in addition to his proper ecclesiastical power or authority, the pope has also vicarious authority. In exercising this power (also called ministerial or instrumental) the pope acts not in his own name as head of the Church, but in the name of God or as an instrument of God, as the vicar of Christ.7 In 1216, Innocent III spoke of the pope having this authority:

What the Roman Pontiff does in this regard [i. e. dissolution of ratified and non-consummated marriages] is not done by human authority, but by divine, since he is truly called the vicar of the true God, not of mere man. For although we are successor of the Prince of the Apostles, we are not however, his vicar, nor the vicar of a certain apostle, nor of man, but we are the vicar of Jesus Christ Himself. Therefore, when the pope separates those whom God has united, it is not man who acts, since he is not vicar of man, but it is God who acts, since he is vicar of God.8

It seems important in this context to reiterate the recent development in the discussion of the possible extension of the scope of the ministerial power to dis5 See Preface, in Potestas Ecclesiœ, 3.

6Pius XII, Address to the Roman Rota, 3 October 1941, no. 3, in AAS, 33 (1941), 424-425 (English translation in W.H. WOESTMAN [ed.], Papal Allocutions to the Roman Rota 1939-2002, Ottawa, Faculty of Canon Law, Saint Paul University, 2002, 14).

7 See WOESTMAN, Special Marriage Cases, 6. Capello explains in this regard: “The power, by which the Roman Pontiff dissolves a [non-consummated] ratified marriage, is not proper jurisdictional power, which he has insofar as the Church is a juridically perfect society and for that reason naturally his and thus ordinary power. It is completely special, extraordinary, indeed ministerial and instrumental insofar as it is exercised by the authority of and in the name of Christ himself; wherefore it is properly vicarious power, and in the true and strict sense divine power” (F.M. Cappello, De sacramentis, 5th ed., vol. 5, De matrimonio, Turin, Marietti, 1947, 749, no. 762 [English translation in Woestman, Special Marriage Cases, 6]). We should note Navarrete’s proposal rejecting the distinction between the proper jurisdictional power and vicarious power, and suggesting the understanding that the pope as visible head of the Church has one sacred power. See U. Navarrete, “Potestas vicaria Ecclesiæ. Evolutio historica conceptus atque observationes attenta doctrina Concilii Vaticani II,” in Periodica, 60 (1971) 415-486.

8 Epistolarum Innocenta III libri undecim, vol. 1, S. Balbutius, Paris, 1682, 181, coi. 2, quoted by A.M. Abate, The Dissolution of the Matrimonial Bond in Ecclesiastical Jurisprudence, Rome, Desclée, 1962, 13.