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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Accordingly, art. 1 states the fundamental principle that a marriage entered into by parties, of whom at least one had not been baptized, can be dissolved by the Roman Pontiff in favour of the faith, provided that the marriage itself was not consummated after both spouses have received baptism.23 Several authors stress that the present Norms demand two essential conditions for the valid dissolution of a non-sacramental marriage: the lack of baptism in at least one of the parties throughout the entire time of their marital life and the lack of consummation of the marriage after the ensuing baptism(s), if this be the case, of the previously unbaptized spouse(s).24 The Instruction of 1973, however, added a third requirement: “that the person, who is unbaptized or baptized outside the Catholic Church, grants the Catholic party the freedom and ability to profess his/her religion and to baptize and educate their children as Catholics - this condition is to be assured in the form of a [written] promise (cautio).”25

This third condition regarding the promises appears, however, in art. 5, § 1 of the current Norms.26 In addition, art. 5 also accommodates the previous norm II, § 7 of Ut notum est27 to the extent that the Catholic party who intends to contract or convalidate a new marriage with a person who is not baptized or who is a baptized non-Catholic must also declare that he or she is ready to remove dangers of departure from the faith.

Article 5 merits a closer look. It reads:

§ 1. If the Catholic party intends to contract or convalidate a new marriage with a person who is not baptized or who is a baptized non Catholic, he or she must declare that he or she is ready to remove dangers of departure from the Faith and the non-Catholic party must declare that he or she is ready to allow the Catholic party the freedom to profess his/her own religion and to baptize and rear the children as Catholics.

23 See Potestas Ecclesice, 8.

24 In fact, the Norms of 1934 spoke about the same two conditions sine quibus non: “Art. 3. [...] § 1. Duplex est essentialis conditio sine qua non: a) prima est carentia baptismi in alterutro coniuge perdurans toto tempore vitas coniugalis; b) altera est non usus matrimonii post baptismum susceptum a parte quae not erat baptizata” (Sacred Congregation of the Holy Office, Normas pro conficiendo processu in casibus solutionis vinculi matrimonialis in favorem fidei per supremam Summi Pontificis auctoritatem, art. 3, in LE, vol. 2, col. 3354).

25 “I. [...] c) ut persona non baptizata vel baptizata extra ecclesiam catholicam libertatem facultatemque parti catholicas relinquat profitendi propriam religionem atquae catholice baptizandi educandique filios: quae condicio, cautionis forma, in tuto ponenda est” (Ut notum est, no. I, in LE, vol. 5, col. 6702; English translation in Woestman, Special Marriage Cases, 129).

26 See Potestas Ecclesice, 9.

27 See LE, vol. 5, col. 6703 (English translation in Woestman, Special Marriage Cases, 130).