DISPARITY OF CULT. - It is the matrimonial impediment that exists, in the canon law in force in the Latin Church, between an unbaptized person (that is, one not 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, that person has subsequently passed over 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 holds as such: a) one who, receiving Baptism after having reached the use of reason, intends thereby to enter the Catholic Church; b) one who, not having the use of reason, is caused to be baptized by one of the parents or by the guardian, who intend, through Baptism, to make that person a Catholic; c) one who, without any request either from himself or from his parents or guardian, or even against their will, is lawfully (cf. cann. 750-751) baptized by a Catholic, or by one who, although not a Catholic, nevertheless intends to baptize him in order to bring him into the Catholic Church. The fact that the parents are non-Catholic, and that he has been, from childhood, raised in another religion, is no obstacle, if the circumstances indicated above exist, to his having to be considered as baptized in the Catholic Church (cf. authentic interpretation of 29 Apr. 1940).
This impediment is diriment, that is, a Marriage that, without dispensation, is contracted while the impediment exists is null.
Analogous to the impediment of d. of c. is the impediment of mixed religion, which however is impedient
(that is, it does not entail nullity of the marriage), and which exists between a Catholic person and one baptized but belonging to a heretical or schismatic sect.
By the name of mixed Marriage is usually meant the marriage contracted by two persons between whom one of these two impediments exists, even if the impediment has been removed by dispensation.
As follows from can. 1060, which, although it directly concerns the impediment of mixed religion, nevertheless, by express provision of the CIC (can. 1070), also applies to the impediment of d. of c., the prohibition against contracting a mixed Marriage, when there is danger of perversion of the Catholic spouse or of the offspring, is of divine right, and therefore would exist even if there were no express prohibition of the Church; when instead there is no such danger, there is only a prohibition of ecclesiastical right, that is, the Marriage is unlawful only insofar as the Church prohibits it. From this it follows that the Church can dispense from the observance of the prohibition only when, besides a just reason existing for granting the dispensation, there is no danger of perversion for the Catholic spouse or for the offspring, or at least such danger is remote; in every other case, since the prohibition of divine right exists, no dispensation can be granted, and, if it were granted, it would be invalid. And precisely because the persistence of a proximate danger of perversion is a condition sine qua non for the validity of the dispensation, the Church does not grant dispensations from the aforesaid impediments unless it is morally certain that such danger does not exist. To this end it generally requires that, besides just and grave reasons existing, 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 only according to the Catholic religion; and moreover that there be moral certainty that these promises will be fulfilled (can. 1061, referred to by can. 1071).
The guarantee that both contracting parties must give concerning the Baptism and education of the offspring concerns only the offspring that will be born after the celebration of the Marriage, not also that already born (decree of the Holy Office 16 Jan. 1942), although the obligation of divine right to baptize and educate the offspring as Catholics also concerns that born earlier.
If both guarantees are not given, at least implicitly, or if the second of them is not given by both contracting parties, the dispensation is null, and therefore the Marriage is also null (cf. replies of the Holy Office 10 May 1941). It is instead disputed whether there is nullity of the dispensation, and therefore of the Marriage, when the guarantees are given, but with the secret intention (on the part of at least one of the two) not to keep what is promised by them.
The guarantees, as a rule, must be given in writing (can. 1061 § 2). And, since there must be, as has been said, moral certainty of fulfillment, it is forbidden to grant the dispensation if the guarantees are not given in such a form that, even by force of the civil laws, no one can prevent their fulfillment (decree of the Holy Office 14 Jan. 1932). However, the dispensation is valid even if the guarantees are given orally, indeed even if they are given implicitly, that is, through conduct from which it must be concluded (and can be proved) that the contracting party knows the obligations imposed and has manifested the firm resolve to fulfill them (reply of the Holy Office 10 May 1941).
To avoid, as far as possible, scandals and other dangers for 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 the celebration of such Marriages (as a rule any religious ceremony is forbidden and the celebration of Mass is always forbidden: can. 1102 § 2), which however is substantially that established for Marriages between Catholics: questioning by the parish priest, and manifestation of consent by the spouses, in the presence of two witnesses (can. 1099 § 1 n. 2). The observance of this form is not only obligatory, under penalty of nullity, but it is moreover severely forbidden that the spouses, before or after the celebration of the Marriage according to the Catholic rite, go, personally or through a representative, to a minister of a non-Catholic cult, in his capacity as minister of the cult (not instead if he acts as a civil registrar), in order to give or renew matrimonial consent. The obligation to observe this prohibition is most grave, and the Church has established that if the parish priest knows that the spouses will violate or have violated this prohibition, he cannot, as a rule, assist at the Marriage; and moreover, if the spouses do not observe it, the Catholic spouse is punished with excommunication latae sententiae reserved to the Ordinary (cann. 1063 and 2319).
Once the Marriage has been celebrated, the spouses, besides the duties common to all spouses, have certain special obligations.
First of all, as is evident, they are gravely obliged 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 in fact are bishops and parish priests obliged to watch over ensuring that the spouses faithfully fulfill the promises made (can. 1064 n. 3), but it is moreover established that the Catholic who knowingly allows the children, or some of them, to be baptized or educated as non-Catholics is subject to excommunication latae sententiae reserved to the Ordinary, and is suspected of heresy (can. 2319). In every case, moreover, in which there is danger for the soul of the Catholic spouse or of the offspring, there is just cause for personal separation (can. 1131): indeed, if the Marriage is unconsummated, dissolution may take place (can. 1119).
Finally, the Catholic spouse must, with due prudence, take care that the other spouse be converted (can. 1062).
Finally, note should be taken of the special norm that can. 1070 § 2 establishes for the proof of Baptism for the purposes of nullity arising from the impediment of d. of c.; that is, modifying the earlier law on this point, the CIC sanctions the application of the general principle in dubio standum est pro valore matrimonii, when one or both parties at the time when the Marriage was contracted were commonly held to be baptized, or their Baptism was doubtful; so that the Marriage can be declared null only if it is proved with certainty that at the time when it was contracted one of the contracting parties was baptized in the Catholic Church, and the other was not baptized.
In the canon law of the Eastern Churches this impediment is in force everywhere, indeed with a greater extension: it exists in fact in every case of Marriage in which one of the contracting parties is in any way validly baptized (even outside the Catholic Church) and the other is not baptized (cf. now can. 60 of the motu proprio Crebrae allatae of 22 Feb. 1949). Apart from this point, which is moreover fundamental, and the absence of the prohibition of religious ceremonies, the discipline is now entirely identical to that of the Latin Church (cann. 60-61 of the aforementioned motu proprio, which replaced the norms previously in force in the various Eastern communities with uniform ones).
The impediment of d. of c. was introduced from the very beginnings of the Church, by custom, soon reinforced, also with penalties, by some particular council and imperial law. However, the nullity of a Marriage contracted between a believer and an unbeliever does not seem to have been recognized, except perhaps in some place, before the 12th century, in which the doctrine upholding nullity decisively prevailed.
The impediment, moreover, until the entry into force of the CIC, even in the Latin Church existed in every case of Marriage between a baptized person (even non-Catholic) and an unbaptized one, as is still the case in Eastern canon law.
Bibliography6 works
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