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

93

tiffs power to ratified and consummated sacramental marriages is taught by the Church’s Magisterium as a doctrine to be held definitively, even ifit has not been solemnly declared by a defining act.” 13

In the Preface, the acknowledgment of the possession of the power applicable to the dissolution of marriages which do not enjoy extrinsic indissolubility is qualified by a remark that the exercise of this power takes into account the pastoral needs of the times and places and the circumstances of each particular case.14

The 2001 Norms make a reference to the Church’s teaching and practice of recognizing the dissolution of marriages in virtue of the Pauline privilege.15 They stress the fact that the Church had been conscious of possessing the necessary powers to determine the scope of applicability of the privilege. This awareness resulted in the precise definition of this theological and canonical institute and the development of the positive norms regulating the use of the Pauline privilege in the life of the Church.16

In order to respond to new pastoral problems accompanying the missionary expansion of the sixteenth century, Popes Paul III, Pius V, and Gregory XIII extended gradually the limits of the application of the Pauline privilege. The broad faculties17 granted for mission territories provided for the dissolution of marriages in which one of the parties was not baptized or, at least, the parties had not lived together after both of them had been baptized.

The ever changing religious and social circumstances gave rise to some new pastoral challenges: especially “[...] 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. ”18 Also, the Code of Canon Law of 1917 abrogated the impediment of disparity of worship for baptized non-Catholics. Admittedly, all these factors contributed to the increase in

13 Ibid., no. 8, in AAS, 92 (2000), 355 (English translation in Woestman [ed.], Papal Allocutions to the Roman Rota 1939-2002, 258).

14 See Preface, in Potestas Ecclesice, 3.

15 The first clear application of the Pauline privilege is found in an unknown fourth century author, who, since the sixteenth century, has been called Ambrosiaster. See Woestman, Special Marriage Cases, 33-34.

16 See Preface, in Potestas Ecclesice, 3-4.

17 See Paul III, Apostolic Constitution Altitudo, 1 June 1537, in Gasparri (ed.), Codicis iuris canonici fontes, vol. 1, 1947, no. 81, 140-142; Pius V, Apostolic Constitution Romani Pontificis, 2 August 1571, in Codex iuris canonici, Pii X Pontificis Maximi iussu digestus, Benedicti Papœ XV auctoritate promulgatus, prcefatione fontium annotatione et indice analytico-alphcibetico ab Em.mo Petro Card. Gasparri auctus, [Romæ], Typis polyglottis Vaticanis, 1933, 698; Gregory XIII, Apostolic Constitution Populis, 25 January 1585, in ibid., 699.

18 Woestman, Special Marriage Cases, 53.