Till death do us part – when can a true marriage be dissolved in the eyes of the Catholic Church?

A common misconception is that the Catholic Church considers that the only way a true marriage can end is by the death of one of the spouses.  That is an oversimplification.  In fact, the true position under the Code of Canon Law (“Code”) is that a consummated sacramental marriage can only be dissolved by the death of one of the spouses (can. 1141).  This article will explain the two key terms ‘consummated’ and ‘sacramental’, as well as the circumstances in which a marriage which is not both consummated and sacramental may be dissolved (including the Petrine and Pauline privileges).  Such a dissolution ends a marriage which truly existed between husband and wife, in contrast with an annulment which is a judicial declaration that a true marriage never actually existed (for example, because something essential to a marriage was lacking from the very beginning such as a party’s capacity or intention).  This article does not discuss annulments, which are governed by their own substantial body of canon law.

In canon law, there are two types of marriage: sacramental marriage and natural marriage.  A sacramental marriage is a marriage between two people who have been baptised (Code, can. 1055§2).  Importantly, neither person needs to have been baptised into the Catholic Church (any valid baptism suffices), and it doesn’t matter if either was a Catholic who subsequently left the Church.  For example, the marriage between a militant atheist gentleman who had been baptised an Anglican in his youth and a Greek Orthodox lady is a sacramental marriage.  A natural marriage is any other marriage, namely a marriage where one or both of the parties has not been baptised.  Importantly, the Catholic Church considers natural marriages to be true marriages.

A marriage which has been consummated is called ratum et consummatum, whereas an unconsummated marriage is called ratum tantum.  There is a substantial body of jurisprudence governing what constitutes consummation.  In the interests of preserving modesty, I will severely oversimplify it by saying that consummation may broadly be defined as a husband and wife engaging in normal sexual relations.  If you need further information, consult a canonist!  Canon 1142 of the Code provides that “[f]or a just cause, the Roman Pontiff can dissolve a non-consummated marriage between baptized persons or between a baptized party and a non-baptized party at the request of both parties or of one of them, even if the other party is unwilling.”  The dissolution of a non-consummated sacramental marriage can only be granted by the Pope personally (can. 1698§2), which he does by means of a rescript.  The parties do not have the automatic right to such a dissolution, and the Pope may refuse to grant it if he does not consider it appropriate even if it was proved that the marriage was not consummated.  For example, the Pope may refuse to dissolve a marriage if there is a risk of scandal (e.g. if the couple lived together after marriage and had a child – yes, this is possible even without consummation!).  In practice, the relevant diocesan bishop will see to the gathering of evidence regarding a petition for dissolution, and he will then prepare an opinion to transmit to Rome (cans. 1699–1705).  Next, an organ of the Apostolic See (normally an office within the Roman Rota) will issue an advice to the Pope regarding the fact of non-consummation and the presence of a just cause (see can. 1698§1).  The Pope then freely decides whether or not to grant the dissolution.

A natural marriage initially between two non-baptized persons, even if consummated, may also be dissolved by means of the Pauline Privilege, which is founded in St Paul’s first letter to the Corinthians.  Canon 1143§1 provides that such a marriage is dissolved by means of the Pauline Privilege if one party receives baptism and that same party contracts a new marriage, provided that the non-baptised party departs.  Canon 1143§2 explains that the non-baptised party “is considered to depart if he or she does not wish to cohabit with the baptized party or to cohabit peacefully without affront to the Creator unless the baptized party, after baptism was received, has given the other a just cause for departing.”  Certain conditions must be met before the Pauline Privilege can take effect, including that the non-baptised party must ordinarily be interrogated as to whether he or she wishes to be baptised or at least maintain the necessary peaceful cohabitation (can 1144).  When the necessary conditions are met, a dissolution by means of the Pauline Privilege occurs automatically upon entry by the baptised party into the new marriage (can. 1143§1).  A local ordinary can, for a grave cause, allow the baptised party to contract the new marriage with a non-Catholic (can. 1147).  Finally, there is a curious canon dealing with the hopefully rather rare case of a person who “after having received baptism in the Catholic Church, cannot restore cohabitation with a non-baptized spouse by reason of captivity or persecution”: such a person “can contract another marriage even if the other party has received baptism in the meantime”, without prejudice to the indissolubility of a marriage ratum et consummatum (can 1149).

Lastly, norms issued in 2001 by the then Congregation for the Doctrine of the Faith (“Norms”) govern the process by which a natural marriage may be dissolved by the Pope in favour of the faith (the “Petrine Privilege”), provided that, if the unbaptised party/parties are subsequently baptised, the marriage has not been consummated subsequent to the second baptism (Norms, art. 1).  Article 7§1 of the Norms explains that the Pope may grant a “dissolution of the bond of a non-sacramental marriage … if the Catholic party intends to enter a new marriage with a baptised person.”  Similarly, the Pope may grant a dissolution “if the unbaptised party intends to receive baptism and enter a new marriage with a baptised party” (art. 7§2).  Dissolution by means of the Petrine Privilege requires that “there is no possibility of resuming the partnership of conjugal life” and that “the petitioner was not exclusively or predominantly the culpable cause of the breakdown of the conjugal life, and that the party with whom [a] new marriage is to be contracted or convalidated was not at fault in provoking the separation of the spouses” (Norms, art. 4).  The exact procedure regarding the exercise of the Petrine Privilege is complex and involves both the Dicastery for the Doctrine of the Faith and local ecclesiastical authorities.

Although indissolubility is an essential property of marriage (Code, can. 1056), the Catholic Church recognises certain types of marriages which are true marriages but which can be dissolved otherwise than by the death of one of the parties.  The distinction between a sacramental and a natural marriage is very important, as is the fact of consummation.  While the Pauline Privilege occurs by operation of law, both the Petrine Privilege and a dissolution on the grounds of non-consummation require the express intervention of the Pope.  Nevertheless, the Church employs strong safeguards to protect both natural and sacramental marriages, and the canon law in this area is very complex and nuanced.  Hence, a canonist should be consulted before seeking to apply any of the above to a concrete situation!