DISPARITY OF WORSHIP. — This is the matrimonial impediment that exists, under the canon law in force in the Latin Church, between an unbaptized person (i.e., not baptized) and one who either has been baptized in the Catholic Church or, having been baptized outside it, has nevertheless converted to the Catholic religion, even if, after baptism or conversion respectively, he or she subsequently lapsed into 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 that such is the case in the following instances: a) one who, having attained the use of reason, receives baptism with the intention of entering the Catholic Church; b) one who, lacking the use of reason, is baptized by one of his parents or his guardian, who intend thereby to make him a Catholic; c) one who, without any request on his part or that of his parents or guardian, or even against their will, is lawfully baptized (cf. can. 750–751) by a Catholic or by one who, though not a Catholic, nevertheless intends to baptize him so as to bring him into the Catholic Church. The fact that the parents are Catholics and that the child was brought up from infancy in another religion does not prevent him from being considered as baptized in the Catholic Church, provided the above circumstances obtain (cf. authentic interpretation, 29 Apr. 1940).
This impediment is diriment, that is, a marriage contracted while the impediment exists, without a dispensation, is null and void.
Analogous to the impediment of disparity of worship is the impediment of mixed religion, which, however, is only prohibitive (i.e., it does not render the marriage invalid) and exists between a Catholic and a baptized person belonging to a non-Catholic sect or schismatic body.
By the term “mixed marriage” it is customary to designate a marriage contracted between parties 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 it directly concerns the impediment of mixed religion, is by express provision of the CIC (can. 1070) also applicable to the impediment of disparity of worship, 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 would therefore subsist even if there were no express prohibition by the Church; whereas, when such danger does not exist, the prohibition is only of ecclesiastical law, that is, the marriage is illicit only insofar as the Church forbids II. From this it follows that the Church can dispense from observance of the prohibition only when, in addition to there being a just cause 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 of divine right subsists, no dispensation can be granted, and if one were granted it would be invalid. It is precisely because the absence of proximate danger of perversion is a condition sine qua non for the validity of the dispensation that the Church does not grant dispensations from the above impediments unless it is morally certain that such danger does not exist. To this end, it generally requires, in addition to the existence of just and grave motives, that the Catholic spouse promise that every danger of perversion of the Catholic spouse will be removed, and that both spouses promise that all children will be baptized and brought up solely in the Catholic religion; and furthermore, that there be moral certainty that these promises will be fulfilled (can. 1061, as referred to in can. 1071).
The guarantee that both parties must give regarding the baptism and upbringing of the children pertains only to children born after the celebration of the marriage, not to those already born (decree of the Holy Office, 16 Jan. 1942), although the divine-law obligation to baptize and bring up children Catholicly pertains also to those born before.
If both guarantees are not given, at least implicitly, or if the second guarantee is not given by both parties, the dispensation is null, and therefore the marriage is also null (cf. replies of the Holy Office, 10 May 1941). It is, however, disputed whether the dispensation, and hence the marriage, is null when the guarantees are given but with a secret intention (on the part of at least one of the parties) not to keep what is promised.
The guarantees, as a rule, must be given in writing (can. 1061 § 2). And since, as has been said, there must be moral certainty of their fulfillment, it is forbidden to grant the dispensation unless the guarantees are given in such a form that, even by civil law, no one can prevent their fulfillment (decree of the Holy Office, 14 Jan. 1932). Nevertheless, the dispensation is valid even if the guarantees are given orally, or even if they are given implicitly, that is, by conduct from which it must be inferred (and can be proved) that the party knows the obligations imposed and has manifested a firm resolve to fulfill them (reply of the Holy Office, 10 May 1941).
To avoid, as far as possible, scandal and other dangers to souls, the Church has established certain special norms for the preliminary formalities (ordinarily the banns are omitted: can. 1026) and for the form of the celebration of such marriages (ordinarily any religious ceremony is forbidden, and the celebration of Mass is always forbidden: can. 1102 § 2), which, however, is substantially the same as that established for marriages between Catholics: the interrogation by the parish priest and the manifestation 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 that the spouses, before or after the celebration of the marriage according to Catholic rite, should go, either personally or through a representative, to a minister of the Catholic cult in his capacity as such (not, however, if he acts as a civil official) to give or renew the matrimonial consent. The obligation to observe this prohibition is most grave, and the Church has decreed 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 furthermore, if the spouses violate it, the Catholic spouse is punished with a latent sentence reserved to the Ordinary (cann. 1063 and 2319).
Once the marriage is celebrated, the spouses, in addition to the duties common to all married persons, have certain special obligations.
First of all, as is evident, they are gravely bound to fulfill what they have promised: that is, the Catholic spouse must avoid every danger of perversion for the other, and both must baptize and bring up all their 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 of the promises made by the spouses (can. 1064 n. 3), but it is also established that a Catholic who knowingly permits any or all of the children to be baptized or brought up in a non-Catholic manner incurs a latent sentence reserved to the Ordinary and is suspected of heresy (can. 2319). In every case in which there is danger to the soul of the Catholic spouse or of the children, there is just cause for personal separation (can. 1131); indeed, if the marriage is unconsummated, dissolution may be granted (can. 1119).
Finally, the Catholic spouse must, with due prudence, strive to bring about the conversion of the other spouse (can. 1062).
It should finally be noted that can. 1070 § 2 lays down a special rule for the proof of Baptism with a view to the nullity arising from the impediment of disparity of cult. By modifying the earlier law on this point, the Code establishes the application of the general principle *in dubio standum est pro valore matrimonii* when one or both parties at the time of contracting marriage were commonly held to be baptised, or their Baptism was doubtful; so that a marriage may be declared null only if it is proved with certainty that at the time of its celebration one of the contracting parties was baptised in the Catholic Church and the other was unbaptised.
In the canon law of the Eastern Churches this impediment obtains everywhere, indeed with a wider scope: it exists in every case of marriage in which one of the contracting parties is validly baptised (even outside the Catholic Church) and the other is unbaptised (cf. now can. 60 of the motu proprio *Crebres allatae* of 22 Feb. 1949). Apart from this fundamental point, and the absence of any prohibition of religious ceremonies, the discipline is now in all respects identical with that of the Latin Church (can. 60-61 of the cited motu proprio, which has substituted uniform norms for those previously in force in the various Eastern communities).
The impediment of disparity of cult was introduced from the very beginnings of the Church by custom, soon reinforced, even by penalties, by certain particular councils and imperial laws. Yet the nullity of a marriage contracted between a believer and an unbeliever does not seem to have been recognised, except perhaps in some places, before the 12th century, when the doctrine supporting nullity decisively prevailed.
The impediment, however, until the coming into force of the Code, also in the Latin Church existed in every case of marriage between a baptised person (even non-Catholic) and an unbaptised person, as is still the case in Eastern canon law.