DISPARITÀ DI CULTO. — This is the matrimonial impediment that exists, in the canon law currently in force in the Latin Church, between an infidel person (that is, one who has not been baptized) and one who has either been baptized in the Catholic Church or, having been baptized outside it, has nevertheless converted to the Catholic religion, even if, respectively after Baptism or conversion, he or she subsequently became or returned to heresy or schism (can. 1070 § 1).
Who is to be considered “baptized in the Catholic Church” for the purposes of this impediment is not always clear. The more common doctrine considers the following to fall under this designation: a) one who, receiving Baptism after having attained the use of reason, thereby intends to enter the Catholic Church; b) one who, not having the use of reason, is baptized at the request of one of the parents or of the guardian, who intend, through Baptism, to make the person Catholic; c) one who, without a request either from the person concerned or from the parents or guardian, or even against their will, is lawfully baptized (cf. cann. 750–751) by a Catholic, or by one who, although not Catholic, nevertheless intends to baptize the person in order to bring him or her into the Catholic Church. The fact that the parents are non-Catholic, and that the person has been brought up from childhood in another religion, does not prevent that person, if the circumstances indicated above exist, from being considered baptized in the Catholic Church (cf. authentic interpretation of 29 April 1940).
This impediment is diriment; that is, a Marriage contracted without dispensation while the impediment exists is null.
Analogous to the impediment of d. di c. is the impediment of mixed religion, which, however, is prohibitive (that is, it does not entail the nullity of the marriage), and which exists between a Catholic person and one who has been baptized but belongs to a heretical or schismatic sect.
The term mixed Marriage is ordinarily used to designate a marriage contracted by two persons between whom one of these two impediments exists, even if the impediment has been removed by dispensation.
As is clear from can. 1060, which, although directly concerning the impediment of mixed religion, nevertheless, by express provision of the CIC (can. 1070), also applies to the impediment of d. di c., the prohibition against contracting a mixed Marriage, when there is a danger of the perversion of the Catholic spouse or of the offspring, is of divine law, and would therefore exist even if there were no express prohibition by the Church; when, on the other hand, there is no such danger, there is only a prohibition of ecclesiastical law, that is, the Marriage is illicit insofar as the Church prohibits II. It follows that the Church may dispense from observance of the prohibition only when, in addition to there being a just reason for granting the dispensation, there is no danger of perversion for the Catholic spouse or the offspring, or at least such danger is remote; in every other case, since the prohibition is of divine law, a dispensation cannot be granted, and, if it were granted, it would be invalid. And precisely because the absence of an imminent danger of perversion is a sine qua non condition for the validity of the dispensation, the Church grants dispensations from the aforementioned impediments only when it is morally certain that such danger does not exist. For this purpose, as a general rule, it requires that, in addition to the existence of just and grave reasons, the non-Catholic spouse promise that every danger of perversion of the Catholic spouse be removed, and that both spouses promise that all the children will be baptized and educated exclusively according to the Catholic religion; it further requires moral certainty that these promises will be fulfilled (can. 1061, cited by can. 1071).
The security that both parties must provide concerning the Baptism and education of the offspring concerns only offspring born after the celebration of the Marriage, and not those already born (decree of the S. Office, 16 January 1942), although the obligation under divine law to baptize and educate the offspring as Catholics also concerns those born previously.
If both securities are not given, at least implicitly, or if the second of them is not given by both parties, the dispensation is null, and therefore the Marriage is also null (cf. replies of the S. Office, 10 May 1941). It is disputed, however, whether the dispensation, and consequently the Marriage, is null when the securities are provided but with the secret intention, on the part of at least one of the two, not to fulfill what is promised by them.
As a rule, the securities must be given in writing (can. 1061 § 2). And since, as has been said, there must be moral certainty of fulfillment, it is forbidden to grant the dispensation unless the securities are provided in such a form that, even by virtue of civil laws, no one can prevent their fulfillment (decree of the S. Office, 14 January 1932). Nevertheless, the dispensation is valid even if the securities are given orally, and indeed even if they are given implicitly, that is, through conduct from which it must be concluded (and can be proved) that the party concerned knows the obligations imposed and has manifested a firm intention to fulfill them (reply of the S. Office, 10 May 1941).
To avoid, insofar as possible, scandals and other dangers to souls, the Church has established certain special procedures for the preliminary formalities (as a rule, the banns are omitted: can. 1026), and for the form of celebrating such Marriages (as a rule, any religious ceremony is forbidden, and the celebration of Mass is always forbidden: can. 1102 § 2). This form, however, is essentially that established for Marriages between Catholics: questioning by the parish priest and the expression of consent by the spouses, in the presence of two witnesses (can. 1099 § 1 n. 2). Observance of this form
is not only obligatory, under pain of nullity, but it is also strictly forbidden for the spouses, before or after the celebration of the Marriage according to the Catholic rite, to go, personally or through a representative, to a non-Catholic minister of religion, in his capacity as a minister of religion (but not when he acts as a civil registrar), in order to give or renew matrimonial consent. The obligation to observe this prohibition is extremely serious, and the Church has established that, if the parish priest knows that the spouses will violate or have violated this prohibition, he may not, as a rule, assist at the Marriage; furthermore, if the spouses fail to observe it, the Catholic spouse is punished with latae sententiae excommunication reserved to the Ordinary (cann. 1063 and 2319).
Once the Marriage has been celebrated, the spouses, in addition to the duties common to all spouses, have certain special obligations.
First of all, as is evident, they are gravely bound to carry out what they have promised: that is, the non-Catholic spouse must avoid every danger of perversion for the other, and both must baptize and educate all the children in conformity with the Catholic religion.
These duties are reinforced by positive canonical provisions. Not only are bishops and parish priests obliged to watch over the faithful fulfillment by the spouses of the promises made (can. 1064 n. 3), but it is also established that the Catholic who knowingly permits his or her children, or some of them, to be baptized or educated as non-Catholics is subject to latae sententiae excommunication reserved to the Ordinary and is suspected of heresy (can. 2319). In every case, moreover, in which there is danger to the soul of the Catholic spouse or of the offspring, there is just cause for personal separation (can. 1131); indeed, if the Marriage has not been consummated, dissolution may be granted (can. 1119).
Finally, the Catholic spouse must, with due prudence, seek to bring about the conversion of the other spouse (can. 1062).
Finally, note should be taken of the special rule established by can. 1070 § 2 concerning proof of Baptism for the purposes of nullity arising from the impediment of disparity of cult; that is, modifying prior law on this point, the CIC enjoins application of the general principle in dubio standum est pro valore matrimonii, when one or both parties, at the time the Marriage was contracted, were commonly regarded as baptized, or when their Baptism was doubtful; so that the Marriage may be declared null only if it is certainly proved that, at the time it was contracted, one of the contracting parties was baptized in the Catholic Church and the other was unbaptized.
In the canon law of the Eastern Churches this impediment is in force everywhere, indeed with a broader scope: it exists in every case of Marriage in which one of the contracting parties is validly baptized in any manner (even outside the Catholic Church) and the other is unbaptized (cf. now can. 60 of the motu proprio Crebrae allatae of 22 Feb. 1949). Apart from this point, which is nevertheless fundamental, and the absence of the prohibition of religious ceremonies, the discipline is now wholly identical with that of the Latin Church (cann. 60-61 of the cited motu proprio, which replaced the rules previously in force in the various Eastern communities with uniform norms).
The impediment of disparity of cult was introduced from the very beginnings of the Church by custom, soon reinforced, even with penalties, by certain particular councils and by imperial law. However, the nullity of Marriage contracted between a believer and an unbeliever does not appear to have been recognized, except perhaps in certain places, before the twelfth century, when the doctrine maintaining nullity decidedly prevailed.
The impediment, moreover, until the entry into force of the CIC, existed also in the Latin Church in every case of Marriage between a baptized person (even
non-Catholic) and an unbaptized person, as is still the case in Eastern canon law.