Folia Canonica 8. (2005)
STUDIES - Wojciech Kowal: Norms for Preparing the Process for the Dissolution of the Matrimonial Bon din Favour of the Faith
98 WOJCIECH K.OWALOMI and the cautiones required in the process for the dissolution of a marriage. Accordingly, the promises of the Catholic party in a mixed marriage are made solely in view of a marriage to be contracted. As everyone has a natural right to marry (ius connubii, c. 1058), the purpose of this law is balanced towards not restricting this fundamental right except for serious and just reasons. The situation is different in the case of the dissolution of a marriage: the right to have one’s marriage dissolved simply does not exist. It is always a favour.35 Even though the promises (cautiones) are made in view of the marriage to be contracted, they are part of the procedure for the dissolution of the previous marriage. It is thus entirely appropriate to demand more from the parties requesting a favour, than from someone exercising his or her right. Therefore the requirements for the promises in those two cases differ36 as the obligation to make them is also imposed on the non Catholic party in the new marriage when a dissolution of the previous marriage is being sought. Moreover, the baptismal status of the parties in the new marriage is an element taken into account in the evaluation of the reasons for the dissolution, namely to determine the expected benefit for the faith of the Catholic party in whose respect the favour is actually granted.37 If this were not a necessary assertion for granting the favour, it would be enough to require the promises of c. 1125 within the process of the preparation for the subsequent marriage. The Congregation for the Doctrine of the Faith points to the fact that “[...] the cautiones are an essential element in any marriage to be contracted with a non-Catholic and the favour of a dissolution will not be granted unless these guarantees regarding Catholic practice and the formation of the children are made in writing and signed by both parties ([Potestas Ecclesice] art. 5, § 2). Even though it may be prudently foreseen that the couple is beyond childbearing 35 “[...] Io scioglimento del matrimonio da parte del Sommo Pontefice non è un diritto naturale, come il contrarre matrimonio, ma una concessione graziosa fatta in previsione di un bene per Ia fede, di cui deve essere perseguito 1’incremento, appunto, almeno nell’educazione religiosa della prole. Per avere la certezza morale di tale incremento la Chiesa esige una précisa e sincera presa di conscienza da parte dei coniuge acattolico, esigendo dallo stesso che prenda precisi impegni in proposito, dandone cauzione” (Silvestrelli, “Scioglimento dei matrimonio in favorem fidei,” 187, no. 30). 36 For a detailed analysis of the content of the cautiones as in c. 1125 and in 2001 Norms, see Amborski, The Development of the Process for the Dissolution of the Matrimonial Bond in Favour of the Faith, 42-45. Cf. Moneta, “Le nuove norme per lo scioglimento del matrimonio in favore della fede,” 1338. 37 For that reason, the favour of the dissolution is always granted in view of a prospective marriage with the specific person. If that person dies before the marriage, or if another partner is chosen, the favour must be requested again for marriage with an intended spouse (Cf. Congregation for the Doctrine of the Faith, Letter to Archbishop of Vancouver, 7 November 1981, in LE, vol. 6, Leges annis 1979-1985 editae, Roma, Ediurcla, 1987, no. 4871, col. 8255).
