PAULINE PRIVILEGE. - The p. p. is the case of dissolution of a legitimate marriage, granted in favor of the faith by positive divine law; a privilege proclaimed by St. Paul (I Cor. 7:12-15), from which it has therefore taken its name. It is also called casus Apostoli, privilegium Christi, privilegium fidei.
The marriage of unbelievers (a legitimate marriage, to which no impediment of divine or natural law is opposed) is valid and indissoluble and cannot be dissolved by the arbitrary abandonment of one of the parties or by the mutual consent and will of the spouses (Holy Office, 18 Sept. 1824 ad 3; Holy Office, 18 June 1866 ad 8).
From mixed marriages, however, in no way safeguarded by prior agreements, very serious disadvantages can arise, since often, through the bad will of the one who remains an unbeliever, peaceful cohabitation is no longer possible, the faith of the neophyte is placed in danger, and the children become the object of a contest between one spouse and the other, to be drawn to different and opposing forms of moral and religious education.
Then, when a good of a higher order concurs, the maintenance of indissolubility is no longer the principal objective, but automatically passes into second place; and natural law itself gives the neophyte the right and the duty to depart, rather than lose the gift of the faith. St. Paul interpreted this law so that a person might not be turned away from the faith, or from persevering in it, by the prospect of having to observe perfect chastity, and for this reason he promulgated the exception, on the basis of which the marriage of unbelievers, when only one of the spouses is converted to the faith and peaceful cohabitation is no longer possible, is dissoluble from without.
I. NOTION
In view of this p., therefore, the marriage of the unbaptized or unbelievers, even if consummated, can be dissolved in the case in which one party, unbaptized, either does not wish to cohabit with the converted party or does not wish to cohabit peacefully, that is, without offense to the name of God or contempt of the Creator. Contempt of the Creator can occur in various ways, either by dragging the converted party into mortal sin or by preventing the Catholic education of the offspring (Holy Office, 14 Dec. 1848) or by persevering in concubinage (Holy Office, 4 July 1853 and 11 July 1866), etc. Nor does the p. cease, if the spouses, after the Baptism of one of them, still cohabited and subsequently the unbelieving party (without the convert, however, having given reasonable cause for departure) not only refuses to be converted, but furthermore, failing in the given word to cohabit peacefully, departs either out of hatred for religion or for other reasons, or no longer wishes to stay together without contempt of the Creator, or has attempted to drag the faithful party into mortal sin or into infidelity. But this p. no longer has any reason to exist, if both spouses, converted and baptized, have afterwards made use of the marriage.
The p. applies to the valid marriage of two unbelievers, one of whom is converted to the faith; it does not, however, include the marriage of two heretics, one of whom embraces the Catholic faith, because the marriage of the latter is ratum (Sacrament), and therefore, once consummated, it can no longer be dissolved for any reason. The p. does not apply to a marriage that a faithful person, having obtained a regular dispensation, contracts with an unbeliever, even if afterwards the unbelieving party no longer wishes to cohabit peacefully (can. 1120 § 2). Likewise the p. has no place in a marriage contracted between two baptized parties, one of whom has passed into apostasy or unbelief. Nor does it apply, if it is a question of an invalid marriage between two unbelievers. When the p. p. is applied, the marriage bond is dissolved as soon as the convert contracts another valid marriage (can. 1126).
II. FOUNDATION OF THE PAULINE PRIVILEGE
The foundation lies in the scriptural text of 1 Cor. 7:12: "To the rest I say, not the Lord: if a brother (that is, a Christian) has an unbelieving wife and she is willing to live with him, he should not divorce her. And if a believing wife has an unbelieving husband who is content to live with her, she should not leave him. But if the unbeliever separates (discedit), let him separate (discedat): for in such a case the brother or sister is not bound: but God has called us to peace." That by this last verse the Apostle permits the departure of the believing party or the dissolution of the bond itself is proved: from the context of the letter to the Corinthians, from the common interpretation of the Fathers and theologians, from the decrees of the Roman Pontiffs and from the practice of the Church.
1. The context of the letter to the Corinthians
Whereas the Apostle in the preceding verses, speaking of the separation of Christian spouses, commands that the wife marry no more, that is, remain unmarried: in these verses, on the other hand, he permits her to depart, without imposing any further restriction; and therefore without even imposing the condition that she remain unmarried, otherwise there would no longer be any difference from the preceding case. This interpretation is confirmed also by the words that follow, "for in such a case the brother or sister is not bound." The bondage in question is nothing other than the conjugal bond that bound the two spouses. If now the believing spouse is no longer bound, it means that he is no longer bound by the marriage bond toward the unbeliever who is unwilling to live together peaceably. In other words, the bond, in such a case, is dissoluble.
2. Interpretation of the Fathers and theologians
The common interpretation and the constant teaching of the Fathers and doctors has interpreted the text of St. Paul in this way. There is a brief indication in St. Justin (II Apol., 2: PG 6, 443); in can. 10 of the Council of Elvira (Mansi, II, 38); in the Shepherd of Hermas (Mand., IV, 9; Funk, I, 477); in St. Ambrose (In Lc., 16, 18: PL 15, 1765-67) and in St. John Chrysostom (Hom. 19 in Epist. I ad Cor., n. 3: PG 61, 155). But clearer is the Ambrosiaster, who writes: "It is not a sin for one who has been abandoned for God's sake if he joins himself to another" (Comm. in s. Paulum, I Cor., 7, 10 ff.; PL 17, 219) and after him (7th century) Pseudo-Theodore (Poenitentiale Theodori, 5, 12: PL 99, 902 ff.).
3. Ecclesiastical magisterium
This is evident from the decrees of the Roman Pontiffs (notable are the decretals of Innocent III: A. Potthast, Regesta, I, nos. 685, 1325) and from the constant practice of the Church, manifested especially in the numerous responses of the Sacred Congregation of the Holy Office, and now gathered in can. 1120 of the CIC and in the Code for the Eastern Church, can. 109 ff. (AAS, 41 [1949], pp. 113-14).
It is disputed whether the origin of this p. is of immediately divine right, sanctioned by Christ and promulgated through the Apostle, or whether the p. was granted by the Apostle, by virtue of a special apostolic faculty, to the Corinthians and (by the approval of St. Peter) extended to the whole Church. More recent authors incline to this second opinion, but perhaps the first is more consonant with the responses of the Sacred Congregation of the Holy Office.
III. EFFECTS OF THE PAULINE PRIVILEGE
The effect of the p. p. is twofold: one immediate, namely the right to contract a new marriage, and the other mediate, the dissolution of the first bond. This is not a dissolution ab intrinseco, but ab extrinseco, produced by positive divine law, by virtue of the p. p., upon the fulfillment of the conditions laid down by the Apostle, and operative at the very instant in which the second marriage is contracted. Consequently: 1) the exchange of consent that takes place in the second marriage between the new spouses dissolves the first marriage and perfects the second. Although, however, the two effects occur at the same time, nevertheless by nature the dissolution of the bond of the first marriage is prior, since it opens the way and makes the second possible. The exchange of consents for the second marriage is not the cause, but the occasion for the dissolution of the first bond, which, as has been said, occurs ab extrinseco, by divine law, at the moment in which the second spouse gives his consent (cf. can. 1069 § 1). Therefore if in the meantime the unbelieving spouse is converted and baptized, the spouse who was converted first can no longer aspire to a second marriage (save for the dispensation of the ratum) and must return to conjugal life, even if he had embraced the religious life or received Orders. 2) The unbelieving spouse becomes free from the married state only when the spouse, having been baptized, contracts the second marriage. If therefore the converted spouse prefers celibacy, the unbelieving spouse cannot remarry. 3) "The faithful spouse, even if after having received Baptism he has again lived maritally with the unbelieving party, does not thereby lose the right to contract a new marriage with a Catholic person; therefore he may avail himself of this right, if the unbelieving spouse, changing his will, subsequently abandons him without just cause, or is unwilling to cohabit peacefully any longer without offense to the Creator" (can. 1124). 4) As cann. 1123-24 make clear, the p. p., by ecclesiastical law, of itself is valid only in order to a new marriage with a Catholic person, because it is in Marriage-as-Sacrament that the newly converted person can find the environment most favorable for the practice of his faith. However, since this exclusion is not of itself sanctioned by divine law, the Church, whenever serious guarantees exist, is accustomed to grant the dispensation from the impediment of disparity of cult for marriage with an unbeliever (S. Congr. de Prop. Fide, 28 May 1846; S. Ufficio, 5 March 1852, 12 Sept. 1855, etc.).
IV. THE CONDITIONS FOR APPLYING THE PAULINE PRIVILEGE
The use of the p. p. is bound to three conditions: 1) the first is that one of the parties be baptized. Hence this p. is not applied if both spouses are baptized together, because then their marriage becomes ratified (= a Sacrament). Nor can it be applied for catechumens not yet baptized. 2) The second is that the party who persists in remaining in unbelief depart. And this departure can be physical or moral. It is physical if the unbelieving party abandons the conjugal home and does not return to it any more. It is not necessary that this departure of the unbelieving party be culpable, but even simple absence is sufficient, provided however that the converted party has not maliciously caused this absence itself, and that after Baptism.
The moral departure, on the other hand, can occur in two ways: a) if the unbelieving party is the cause of quarrels, disputes and other harms; b) or when it attempts to drag the baptized party into committing something gravely illicit, such as apostasy, adultery, the education of the offspring in paganism. This moral departure makes conjugal life impossible, so that the separation of the spouses becomes morally necessary through the malice of the unconverted party. 3) The third condition is that the flight or physical or moral departure of the unbelieving party be legally established. And this is obtained through the interpellations.
V. THE INTERPELLATIONS
1. Necessity of the interpellations
If one considers even divine law alone, the interpellation is regularly required as the ordinary means of arriving at certain knowledge of the flight or departure of the unbelieving party. Such is at present the common opinion of theologians. Nevertheless, an interpellation made in any manner whatsoever, even privately, is sufficient, although, if it is not fully proved, in the external forum the celebration of the new marriage cannot be permitted, nor can the previous marriage be held to be dissolved.
Someone observes, however, that although the flight or departure of the unbelieving party is required by divine law, it is nevertheless not laid down in the scriptural text how knowledge of this departure or flight is to be had (cf. F. M. Cappello, De matrimonio, 5th ed., Turin-Rome 1947, p. 778). Consequently, given the true departure of the unbelieving party, the marriage subsequently contracted by the baptized party, even though the interpellations were omitted, would not seem to be invalid, because it does not go against the Pauline privilege. In practice, however, if the new marriage had been celebrated without a preceding interpellation or dispensation from it, although in reality the unbelieving party has effectively departed, recourse must be had to the Holy See, on account of the violation of can. 1121, and it will indicate what must be done.
Ecclesiastical law in every case requires the interpellation, ordaining by can. 1121 § 2: "These interpellations must always be made, unless the Holy See has declared otherwise."
And if the unbelieving spouse cannot legally be interpellated, as in the case in which it is unknown where he has gone, or whether he is still alive, or because it is judged morally impossible that the regular interpellation should reach him, or because from the interpellation the gravest harms are feared; then the party who has been converted to the faith may contract another marriage, but not before having obtained the pontifical dispensation from one or both of the interpellations. And the Holy See, if there is a just reason, is not reluctant to grant such a dispensation (cf. Benedict XIV, De Synodo dioecesana, Rome 1748, l. VI, ch. 4, n. 3).
2. Object of the interpellations
This object is twofold, or rather a double interpellation of the unbaptized party is required, namely: a) whether it too wishes to be converted and receive Baptism; b) whether it at least wishes to live together peacefully without offense to the Creator (can. 1121 § 1, nn. 1 and 2). Here very many cases can occur: a) if the unbelieving party answers affirmatively to both questions, there is no longer room for the case of the Apostle; b) if it answers negatively to both, then the case of the Pauline privilege properly obtains; c) if it answers negatively to the first question but affirmatively to the second, the Pauline privilege does not apply; there remains, however, intact the right of the convert to enter into a new marriage as soon as the unbeliever no longer observes the promise made, and then the interpellations, if they were made before, need not be repeated.
3. Manner of making the interpellation
a) As to time. — The interpellations must be made after the Baptism of the party who has been converted, according to the provision of can. 1121 § 1.
b) As to form. — The form to be used can be threefold: judicial, which is not required; summary or extrajudicial (which is the ordinary form); and private (can. 1122 §§ 1-2). An interval of time for deliberation must be granted to the unbelieving spouse, if he requests it, warning him, however, that once this time has passed without use, the answer will be presumed negative. Interpellations made even privately by the converted party himself are valid, indeed are also lawful, if the ordinary form cannot be observed; in this case, however, for the external forum, they must be established either by at least two witnesses or by another legitimate mode of proof.
c) As to number. — For justice it is sufficient that the interpellations be made once.
4. The effects of the interpellation
They are those of sanctioning and better determining the effects of the Pauline privilege (can. 1123).
When by declaration of the Holy See the interpellations are omitted, the marriage contracted by the converted party is and remains valid, even if it later comes to be known that the unbelieving spouse had been converted to the faith, even at the time of the celebration of the marriage. Thus Gregory XIII sanctions in the constitution Populis, 25 Jan. 1585: CIC, Appendix, Doc. VI.
5. Dispensation from the interpellations
The word "dispensation" is used according to the common manner of speaking, because the Code abstains from this term (it uses declaraverit instead of dispensaverit). The dispensation is not granted without just cause, of which one must be certain at least summarily and extrajudicially. If the Pauline privilege is used, the just cause is not required for validity; if, on the other hand, it is a question of the use of vicarious power (of which below), then most probably it is required for validity.
The dispensation must be granted by the competent authority: a) besides the Supreme Pontiff, by virtue of can. 247 the Sacred Congregation of the Holy Office alone handles cases that directly or indirectly, in law or in fact, concern the Pauline privilege, the impediments of mixed religion and of disparity of cult; likewise to it alone belongs the faculty of dispensing from them. Therefore every question of this kind is to be referred to this dicastery, which nevertheless, if it deems it opportune, may refer the question to another dicastery or tribunal (e.g., to the Sacred Roman Rota, to the Congregation of the Sacraments, etc.). b) Moreover, to all bishops and apostolic vicars, by delegation of the Supreme Pontiff, the faculty is granted of dispensing from the interpellations in an urgent case, whenever it is known with certainty that the unbelieving spouse neither wishes to embrace the faith nor to live with the converted spouse without offense to the Creator (S. Congr. S. Off., 11 Aug. 1859: Collectanea, p. 1351). c) To the Ordinaries of mission lands particular indults are granted. Here it must be noted that for the granting of the dispensation a just cause is required, such as the impossibility or uselessness of the admonition or an evident danger of grave harm to the party who has become a Christian.
VI. RELATED QUESTIONS: "PETRINE PRIVILEGE"? — Mention has already been made of the constitution Populis of Gregory XIII (25 Jan. 1585). Alongside it are placed two other constitutions, slightly earlier: the constitution Altitudo of Paul III (1 July 1537) and the constitution Romani Pontificis (2 Aug. 1571). By these three constitutions special faculties were granted for particular places (today made of common law, can. 1125) in the matter of the dissolution of legitimate marriages, either as an extension of the Pauline privilege, according to some, or as an exercise of the vicarious power of the Roman Pontiff, according to others.
With his constitution (CIC, App., Doc. IV) Paul III granted to those polygamists who, at the moment of Baptism, did not remember which of their various wives had been the first, the right to take any one of them. Pius V, with his new constitution (CIC, App., Doc. V), declared that the aforesaid polygamists could retain whichever of the wives was baptized with them, even if they clearly remembered which had been the first. Gregory XIII took into consideration the case of those spouses who, deported either both, or at least one of them, to distant regions, had no possibility of making the interpellations. For such cases the Pope granted to certain priests (after the CIC the right belongs to the local Ordinary, or to parish priests, or to quasi-parish priests) the faculty of dispensing from the interpellations, after having summarily established, in extrajudicial form, that the other spouse could not be interpellated or that, within the fixed time, he had not responded to the interpellations. Such a marriage remained valid, even if it later turned out that the other spouse could not respond to the interpellations or perhaps that he was already baptized. Regarding these concessions, given for particular places and peoples, the CIC decreed: «All those things that treat of marriage in the Constitutions of Paul III, Altitudo of 1 June 1537, of St. Pius V, Romani Pontificis, of 2 Aug. 1571, of Gregory XIII, Populis, of 25 Jan. 1585, and that were granted for particular places, are extended also to the other regions, in the same circumstances» (can. 1125). Therefore the provisions of the three aforesaid Constitutions are extended to the whole world.
What is the juridical nature of the dispensations granted by the aforesaid constitutions?
Erroneously, as it is easy to demonstrate, some interpret such a dispensation as an extension of the p. p.
The opinion more common among theologians affirms a more general power of the Supreme Pontiff in the matter, an exercise of his vicarious power (Mt. 16, 18). And the reasons for this opinion are intrinsic and extrinsic. The intrinsic reason is that only the bond of Christian marriage, ratified and consummated, is indispensable. But such a marriage is not ratified and consummated, except after the Baptism of the two spouses has been followed by copula. The extrinsic reason is because the Supreme Pontiffs have several times dissolved the bonds of such marriages, in which the conditions of the p. p. were almost entirely lacking.
In short, the power of the Supreme Pontiff to dispense from the bond, at least theoretically, can be admitted in all cases in which at least one of the spouses is baptized, and also in cases in which the marriage of two persons, both already baptized, has not been consummated after Baptism.
This question of the vicarious or ministerial power of the Supreme Pontiff over marriage, which lacks the requirement of sacramentality (parallel to the other on ratified and non-consummated marriage, v. MATRIMONIO, VII. M. RATO E NON CONSUMATO, in Enc. Cott., VIII, coll. 463-71) was the object of a vote of the consultors of the Congr. of Prop. Fide, which was negative (8 Oct. 1631), but which the Congregation did not make its own (5 Dec. 1631); it was also the object of lively disputes among theologians. Famous is the dispute held at the Roman College in the 17th century, under the direction of distinguished theologians of the time, and whose conclusions, fully affirmative for the existence of the ministerial or vicarious power, were presented to the Supreme Pontiff. The affirmative opinion gained ever more ground, all the more so since the use by the Supreme Pontiffs of this power became ever more constant after the three Constitutions recalled above, which cannot be brought within the limits of the p. p., so that today it can be said clearly proved that the marriages of infidels do not become absolutely indissoluble in the face of the vicarious power of the Roman Pontiff, if they are not again consummated after the Baptism of both spouses. Hence it has come about that alongside the p. p. there is today commonly spoken of the existence of a «Petrine privilege», that is, proper to the fullness of the powers of the successor of Peter, and which integrates the former, in all those cases that would not fall within the conditions opposed to the p. p. A numerous casuistry, which could document what has been asserted above, escapes the investigation of canonists and theologians, given the secret procedure maintained by the Holy Office, the Dicastery, as has been said, competent in the matter. Two cases however known and rather recent (10 July, 5 Nov. 1624), in which marriages contracted between a non-Catholic baptized person and an infidel were dissolved, can be an eloquent sample of this practice.
VII. ANNEXED QUESTIONS: THE «FAVOR FIDEL»
The conditions of the p. p. are to be interpreted strictly. It is indeed a privilege granted by way of positive-divine law, but at the same time against the right both natural (Gen. 2, 24) and positive (Mt. 5, 32; Mc. 10, 11; Lc. 16, 18) of the indissolubility of the conjugal bond. It would therefore be unlawful, basing oneself on a mere probability, by means of a reflex principle to conclude in a particular case to the non-existence of a bond, which has certainly arisen and which must subsist until the existence of the conditions of the p. p. is certainly established. This is not a case for applying probabilism, since it is a conflict of laws, one of which is without doubt certain. And not even in the case of doubt about the existence of the conditions of the p. p.; it is not lawful because doubt cannot modify the objective reality of things, and by acting otherwise one would carry the p. p. outside its scope. Nevertheless can. 1127 sanctions: «in doubt the privilege of the faith enjoys the favor of the law». In other words, in doubt one must judge in favor of the liberty of the converted party, in order to permit that party a new marriage or to remain lawfully in the new marriage already contracted. After what has been said it is evident that this principle embraces not so much the p. p. as the use of the vicarious power of the Supreme Pontiff, insofar as it refers to all cases in which the p. p. cannot with certainty be applied, but which are subject to the vicarious power of the Pope.
Nevertheless the favor of the law is not had in those doubtful cases in which, by permitting the new marriage, general or particular scandal would arise, or the danger of injuring the bond of some marriage ratified and consummated after the Baptism of both.
According to the decree of the Holy Office of 10 June 1937 (AAS, 29 [1937], p. 305), when the doubt concerns the existence or the validity of the Baptism conferred on both parties before marriage, the privilege of the faith cannot be applied, since there is a proximate danger of violating the divine law, from which no one can dispense. 1) If the marriage was contracted by both parties in paganism, and the doubt arises concerning the Baptism conferred afterwards on only one party, when that party is baptized anew, one must stand for liberty, after having observed the other conditions. 2) When the marriage was contracted between a certain infidel and a doubtfully baptized person: a) if the doubtfully baptized person is held to belong to the Catholic religion and the doubt concerns the very fact of Baptism, there is ground for the p. p., because the marriage is either null for lack of dispensation from disparity of cult, or in fact was contracted between two infidels; if instead the doubt concerns the validity of the Baptism in fact conferred, according to the responses of the Holy Office, before the marriage one must stand for the validity of the Baptism, and therefore one must request the dispensation from disparity of cult; after the marriage, in order to dissolve it, if the dispensation from disparity of cult has been given, one must have recourse to the Holy See to request the dissolution of the legitimate but non-ratified bond; if this dispensation has not been given, both parties may pass to new marriages.
b) If one party is doubtfully baptized in a non-Catholic sect, again a distinction must be made: if the marriage was contracted before the Code, what was said above concerning doubtful Catholic Baptism must be applied; if instead the marriage was contracted after the impediment of disparity of worship was abolished in the Code for non-Catholics baptized in their own sect (can. 1070, § 1), whether the doubt concerns the fact or concerns the validity of the Baptism, recourse must be had in individual cases to the Holy Office, in accordance with the decree of 10 June 1937.
But as Cappello rightly notes: «this response does not at all settle the theoretical question of the application of the principle of can. 1127 or not; but merely gives a practical norm to be observed. It is not known, moreover, whether the recourse is required for validity» (F. M. Cappello, op. cit., n. 788).
VIII. THE PAULINE PRIVILEGE IN THE ITALIAN CONCORDAT
The p. p. is not expressly mentioned in the Italian Concordat, whereas the pontifical power of dispensation from the ratum is explicitly recalled. It is evident, however, that since the Italian State recognized, on the basis of art. 34, marriage as it is regulated by canon law, it implicitly committed itself also to the recognition of the p. p. And this is the view held by authoritative civilists and canonists (Boggiano Pico, Bruzzo, Capalti, Cappello, etc.). Since, however, the Italian law of 27 May 1929 omitted any mention of the p. p., the Italian Courts of Appeal have hitherto refused the transcription of the few cases of p. p. verified in Italy, supported in this by the opinion of many scholars of ecclesiastical law, such as Jemolo, Falco, Vassalli, etc. All this, however, is at least not in conformity with the spirit of the Concordat, which tends to "restore to the institution of marriage... a dignity in keeping with the Catholic traditions of its people."