THE COMPLEX QUESTION OF MIXED MARRIAGES

L A D I S L A S C)RSY, S . J .

The new ecumenical spirit has swept through the Church as a warm breeze in the spring sweeps through a wintry landscape. The comparison of the first days of spring with this ‘ecumenical age’ is not inept: the warm breeze is there, mutual good will among all who believe in the saving power of Christ is great and intense, and it is the earnest of a rich future. At the same time it is clear that the winter which has reigned among Christians for many centuries has done great damage, and it will take a long time to repair it all. We need the ecumenical spirit, and the fresh and warm air it brings to us all, but we must realize that we are just in the beginning of a new era, which may bring the final solution only in the future.

For those who have to face the realities of Christian living it has to be admitted that it is in a mixed marriage that one sees the sad division of Christendom brought into the very centre of the family; and it is there that the division of minds in faith is reflected in everyday actions and attitudes. In the family the problem of the division of the Church of Christ becomes a burning problem, and it tends to focus more especially on the education of the children.

Is there a solution to the problem of mixed marriages? The answer is, Yes, there is one solution, namely unity in faith. Apart from unity in faith there is no solution that would entirely and for ever cancel all difficulties or problems. This is a point that needs stressing at the outset, for the agony of the mixed marriage situation is, when one reflects, only a form of the general agony of divisions in faith. Many writers have recently urged that we press on for a solution of the ‘painful problem of mixed marriages’. They sometimes fail to realize that the solution is basically no easier than that of the reunion of Christians. We have to do all we can to bring it about, but must not mistake the sowing time for that of the harvest. We are still concerned with beginnings.

SETTING T H E P R O B L E M

The purpose of this article is to set theproblem of mixed marriages before our eyes in three ways, i.e. theologically, legally in its proper historical context, and not least ecumenically. It is also intended to see what practical

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steps can be taken now to help all those who either intend to contract a mixed marriage, or whose existing married life is already that of a mixed marriage.

To set the problem theologically means to recall the principles on which the Catholic Church will have to insist humbly but firmly. Not to recall them would be to betray the trust of those Christians who rely on our sincerity, and would be to leave ourselves open to the charge of equivocation or of unintended deception. To set the problem historically means to show what is accidental in the legislation about mixed marriages and conse- quently changeable according to the needs of historical circumstances. To speak ecumenically means to let charity reign supreme. At the same time some assumptions will have to be made, as for example that which concerns the right of the Church to legislate in marriage, as she has done especially in the sixteenth and in the twentieth centuries. It is also assumed here that there is a common Christian interest to protect the holiness of marriage. In fact many Churches legislate concerning marriage, thus it is not necessary for an Anglican parson to celebrate the marriage of divorced people. It is also true that many Protestant and Orthodox Churches are certainly opposed to mixed marriages, thus a Baptist might well regard marriage with a Catholic or an Anglican as nothing less than apostasy from the Baptist congregation. There is here a token of the concern on the part of all religious people to make such marriages as they think are worthy of their Christian beliefs. Both the assumptions made here, that of the Church’s right to legislate and that of a common protective interest, are important.

I hope to cover the field to some extent with a suggestion of dialogue with various groups: non-Catholic writers who are inclined to scent intolerance in the Catholic position, Catholic writers who plead for rapid and profound changes as also with those Catholics who above all value the quality of prudence in the present legislation. But before the dialogue begins it will be useful to give a summary of the present laws and to outline their historical background.

If a Catholic intends to contract a mixed marriage, which is a marriage between a Catholic and a baptized non-Catholic, he has to obtain a dis- pensation from his bishop, or from the Holy See (as the case may be) from the impediment of ‘mixed religion’. If the impediment were disregarded, this would not make the marriage invalid; but no bishop or parish priest would agree to witness a mixed marriage without previous dispensation; and since the presence of the local bishop or of the local parish priest is itself required for a valid marriage (apart from exceptional circumstances, e.g. when no priest is available for a whole month, or when there is danger

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of death), the dispensation cannot in practice be disregarded. The parties are said to have to contract in canonical form, i.e. before the local bishop, or the parish priest, or before a priest especially delegated by either of these, and it must also be before two witnesses.

However, the dispensation in question is not given by the bishop, unless the request is accompanied by three promises: (1) the non-Catholic party has to promise to respect the faith of the Catholic partner; (2) both parties have to promise that they will have all the children educated in the Catholic religion; (3) the Catholic party has to promise that he will do his best by prayer and example to lead his non-Catholic partner to the Catholic faith.

If the bishop is satisfied that the promises have been seriously made, and that there is a good reason to give the dispensation (e.g. the small number of Catholics in the district), he gives it and the parties are free to marry, although never with the same liturgical solemnity that is the right of purely Catholic marriages.

One can see at once that the whole legal edifice stands on the form of the marriage. It has to be contracted in a form prescribed by Canon Law, if not, it will not be a sacrament; it will not be a marriage at all. Take away the form and the carefully built legal edifice collapses. Marriage legislation in the Church was a matter of slow growth. Up to the time of the Council of Trent all marriages that were contracted in a way that was naturally sufficient to manifest a true will to marry were good and valid in Church law, even if popes and bishops insisted that good Christians should celebrate their marriage in their parish church.

The Council Fathers at Trent were much preoccupied with the problem of hidden, or ‘clandestine’ marriages. If anybody could thus marry as he pleased, confusion about who was married to whom and from what date was bound to follow. Thus came the decree of Trent, Tametsi, to remedy the situation. Henceforward all Christians would have to marry in the presence of their parish priest and some witnesses. So far, so good. There was, however, in the Church a basic prerequisite : a law had to be promul- gated in every parish and diocese before it became binding in that parish or diocese. Given the rapid spread of Protestantism, and the enmity towards Rome of princes who embraced the new religion, the law could not be promulgated in many places. In spite of complications a gradually rational pattern emerged from the confusion, and the Holy See admitted as legitimate the interpretation that in those regions where the law was not promulgated, it was not binding either; and further that it did not bind ‘heretics’, and in some places at least that they could communicate their exemption to a Catholic in the case of a mixed marriage. Hence there was

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no universally binding form for a mixed marriage. The consequence was the existence of regions where the Tridentine form was necessary both for purely Catholic marriages and for mixed marriages, and at the same time there were other regions where the pre-Tridentine law was still in full vigour for mixed marriages. It was Pius X who through the well-known decree Ne Temere established uniformity for the whole Catholic Church. Since Easter 1908, mixed marriages have had to be contracted according to Tridentine legislation. For some time however two exceptions were admitted: in Germany the Apostolic letter, Providu (1906), allowing mixed marriages to be contracted outside the Catholic Church, remained in vigour, and at the request of the Hungarian bishops it was extended to all regions under the jurisdiction of the Hungarian crown. But the Code of Canon Law, promulgated in 1918, has done away with all exceptions. There is one law only in the Church today, the same for mixed as for purely Catholic marriages: all have to be contracted in the same canonical form.

O F F E N S I O F R A T R U M : THE COMPLAINT O F NON-CATHOLICS

As the legislation of the Church has moved step by step towards appar- ently greater severity, a sense of resentment has taken root in the hearts of many Christians who are not Catholics. When the breeze of the ecumenical spirit came and it was felt that a new era of friendly relations was beginning, then the problem of mixed marriages soon came to the surface, and non- Catholic Christian communities, their leaders, their scholars and their faithful asked and are now asking for legal changes, as a token of good will on the part of the Catholic Church towards other confessions.

The request to change our laws may take various forms of expression. Sometimes it is an outright accusation that the Catholic Church has placed the law above the Gospel coupled with a friendly admonition that reform is timely. Sometimes it is a theological discussion which concludes that there are doctrinal reasons for the change, since the validity of the marriage is dependent upon the will of the parties, and not upon Canon Law. Sometimes it is a plea on grounds of fairness and equity to adapt our laws to those of other Christian communities. Sometimes it is a protest on behalf of those who, because of the severity of our laws, are in serious difficulties. However it may be expressed the opinion in substance of non- Catholic Christians about our mamage laws can be summed up in the one word, intolerance. For them it makes its appearance in many waysandalso in many degrees of unpleasantness. And of course intolerance hurts: wherever it is present, good will cannot flourish.

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Among non-Catholic bodies it is often thought that the greatest obstacle to Christian unity is the claim of any one Church to be the true Church of Christ regardless of others. This is precisely, it is pointed out, what Catho- lics are doing, And the laws on mixed marriage are a faithful reflection of this attitude of mind. Admittedly, they argue, one cannot expect a change in dogmas, but why could not the Catholic Church make a little practical step towards unity, by mitigating the laws concerning mixed marriages? It would not touch any point of faith and such laws are in any event a late development in Church history. But such a step would pave the way for better things, towards a slow growing together in dogmatic belief. The dismantling of intolerance should begin with a dismantling of the laws about mixed marriages.

For a Catholic theologian to answer such a discourse is not easy. He has at heart, no less than his partner in the dialogue, the need that exists of showing good will towards all. At the same time he knows that there cannot, nor ever will be, what would amount to a levelling down of Catho- lic dogmas to the point that all can accept. He has to say this in all honesty, even at the risk of hurting the other-which he will regret. He would add that perhaps a change in marriage legislation may be indicated, but the question will have to be decided in a doctrinal context that does not dimin- ish the claim to be the true Church of Christ.

However, tlle accusation of intolerance goes further. The Catholic Church in effect asks the non-Catholic who intends to marry a Catholic to sign promises, and to celebrate the wedding before a Catholic priest. Is there not here a singular lack of respect for the conscience of the non- Catholic? Is this lack of respect not all the more offensive in that the Catho- lic Church is always vindicating freedom of conscience for her own mem- bers? A non-Catholic who genuinely believes in the truth of his own reli- gion cannot in conscience sign away all the children, cannot, if he respects the religion of his fathers, go into a Catholic church to be married there, for he would be disregarding his own community and his own church or chapel where he learned to be a good Christian. Thus it is the Catholic Church that should change its laws in such a way that full respect can be paid towards the conscience of the non-Catholic party. In particular (a) promises should not be sought from a person who is not a Catholic and so not under the authority of the Catholic Church and (b) the religious education of the children should not be given over to the Catholic party only. It is the natural right of a parent to teach his child about God and his Kingdom. An equitable distribution of rights and duties is needed. ( c ) Nor should the religious community of the non-Catholic party be ex- cluded from the celebration of the marriage ceremony: this recognition is

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due to them as to true Christians who have a right to partake in the joy of a member of their body. The substance of this argument is that the Catholic Church is intolerant because it does not respect the conscience of the non- Catholic.

In order to clear the way towards a better understanding with our fellow-Christians from whom this accusation comes, let us say at once that respect must be paid towards the conscience of all men of good will, even if they are held to be in error. Erroneous belief that does not spring from ill will does not destroy the right of the human person to be respected, and to hold firmly and freely what he believes to be the truth. Violation of this principle is not Christian. But there is a qualification and it is this: when two persons claim a right, and their claims conflict in such a way that there is no possibility of adjustment or of compromise, and at the same time for the sake of a greater good it is necessary that one of these two should act or choose, then one of them will have to give up his own claim, and leave the other to act. This is a law of life itself, and it is a matter of common sense. Yet this simple principle can become obscured when it touches matters of religion. Let us take the problem of the education of children in the case of a mixed marriage. That a child has to be educated is not in dispute; and it is also clear that it has to be instructed about Christ- ian doctrine. But in practice there are soon difficulties and complications. If the father is a Catholic, he wants to prepare the child for his first con- fession and rightly so. If the mother is a non-Catholic perhaps the only thing she can say to the child is that from her standpoint confession is an empty ritual. Yet action must be taken and the child has to be instructed. Two irreconcilable claims conflict: father and mother claim their right. Conflicting instruction would cancel all truth in the heart of the child : one of the parents will have to give way.

And there are also two consciences involved. If the conscience of the Catholic is respected and he obtains his right to instruct the child, the non-Catholic will or may claim that his conscience has been disregarded. If the conscience of the non-Catholic has been deferred to, that of the Catholic will suffer. It is to avoid such an impasse that the CatholicChurch proposes that agreement should be come to from the very first. If the non- Catholic has recognized the necessity of such an agreement and has freely yielded his claim, he is only following his conscience in carrying out the promise he then made. But if, from the start, he felt that to make such a promise would be to go against his conscience, the Catholic Church would not expect him to make it, any more than he should expect her to abandon her conviction of the truth of her mission. An upright conscience may make great demands, one way or another; the Church is not violatingconsciences

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when she calls attention to the facts and to the difficulties that lie ahead. Of course where the difficulties are not irreconcilable, she will encourage such adjustments as have due regard to the rights of both sides.

The same problem can be considered from the point of view of the free- dom of the Catholic spouse to practise his or her own religion. This may at first look like an innocuous promise: why should the non-Catholic interfere with the religious practice of the other? But here vital matters are at stake. By signing such a promise the non-Catholic accepts, in practice at least, the doctrine of the Church about conjugal chastity, and about respect of life in marriage. This is also a field where the dictates of consciences may well clash, and are not infrequently likely to clash. Here again one has to prevail because in practice nobody can follow both. Such might be the issue if a doctor were to recommend a therapeutic abortion. Can the Catholic Church without abandoning her own faith in herself say that when such a conflict arises the conscience of the non- Catholic should be respected rather than that of the Catholic, in a matter which is now one of life and death ? Indeed it hurts the Catholic Church that she should seem intolerant; and it is true that the right of the erroneous conscience has to be respected, but when this would destroy the right of a correctly formed conscience then there can be no other way out. Further, it can be asked if the appearance of intolerance can deter the Church from asking the non-Catholic to respect the conscience of the Catholic in such circumstances? Perhaps my example was an extreme one, but non- Catholics have themselves adverted to it.

There are other instances of a less striking nature, but of no less im- portance, which could be taken from ordinary married life. Whose con- science is it that should be respected if one partner follows Catholic teaching on birth control, while the other does not? It is of no use to say that there should be mutual respect, and unity in diversity. Only one solution to their problem is in practice possible. Once again we come to the conclusion which I have anticipated but which is inevitable, viz. that when we speak of respect fo1 individual consciences there is in t h s context only one solution which is a solution, one religious faith. And in the mean- time if the non-Catholic party cannot in conscience make the promises, what other conclusion is left than that the couple in question should not marry? Would not the alternative involve a clash of consciences, perhaps for a lifetime?

There is another complaint made on occasion by our fellow-Christians and it is that of a certain imperialism by the Catholic Church. The non- Catholic, they say, is not under the jurisdiction of Catholic bishops, hence the Church has no right to impose the signing of formal promises, or the

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making of promises at all. The ground of this complaint will repay con- sideration. The reason why promises are asked for is in order to ensure full respect for the Catholic conscience. Experience shows that few young couples preparing for marriage realize the implications of their not having the same faith. By asking for the promises the Church intervenes and the problem is put frankly before the engaged couple, especially when, as in England, the parish priest explains what the promises are about. One cannot help feeling that to put matters in this way, fairly and squarely to the young couple, is no more than justice and at the same time a due warning. They have the right to know the difficulties they are going to face. They should deliberate upon their answers now, and freely.

But surely, says the non-Catholic, it should be enough to make the promises to the Catholic partner: it should not be necessary to make them to the parish priest. The word once spoken on the part of the non-Catholic should be enough. Indeed there are circumstances when it would suffice; but humanwise some sort of external witnessing is a general need. Nor is this insistence a peculiarity of the Church: some solemnity surrounding the making of contracts is as old as the memory of mankind. As an ex- ception, provided the bishop agrees, the promises can be made in a different way for any non-Catholic who found it too difficult to sign the promises or to make them in a solemn form.

In fact while the Church requires a reasonable certainty that the children will be educated in the Catholic religion, and the faith of the Catholic will be respected, she remains very flexible in the matter of the documentation of the promises. Once certainty is achieved the rest can be a matter of local adaptation, especially in mission lands where, as for example in Japan, formal promises are not always required. What is important is that the signing of the promises should be put to the signing party as an invitation in the circumstances to do the right thing; and it is not being suggested by the Church that he act against his own conscience.

Perhaps this is the place to mention an exceptional situation, though by no means so very exceptional in countries where the number of Catholics is exceedingly small. Let us suppose that a Catholic boy cannot find a Catholic girl, or not even a non-Catholic girl, who would be a suitable partner for him and would be prepared to respect his conscience, or have the children educated in the Catholic religion. Here the natural right of a person (in this case the Catholic) to marry clashes with the positive eccle- siastical law that requires explicit or implicit promises, and with the law that forbids marriage if the faith of the children is not assured. If it is asked whether in these straitened Circumstances the Catholic can still marry, then the answer is, Yes. He may indeed exercise his natural right

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to marriage. He will have to do what he can to assure the Catholic edu- cation of his children, but if he has to tolerate otherwise, he will be blame- less. He could not positively abdicate his right to the religious education of the children, he could not teach them non-Catholic doctrine, and of course he could never commit a sin in conjugal life, but with those qualifications he can marry. However, it scarcely needs pointing out that this is an ex- ceptional not a normative case. One may sum up the question of the promises by saying that to put the question about future religious practice in the family is only fair: to ask for promises is ordinary prudence; to ask for them in a given form is a matter of practical policy which can be adapted to local needs.

But why has the marriage to be celebrated in the Catholic Church? ask our brethren.' And above all, why is the penalty SO high for neglect of this rule? If the ceremony has not been performed according to legal requirements the marriage is regarded as invalid. The marriage of the non- baptized merely before an official of the state is recognized as holy and inviolable for the Catholic Church; and the marriage of two baptized non-Catholics in whatever form is a sacrament in Catholic teaching; but when a child of God (a baptized non-Catholic) marries another child of God (Catholic) and the marriage is not witnessed by the parish priest, there is no marriage still less a sacrament. Thus the rule for mixed marriages is stricter than that for non-Christians, or than that for merely non-Catho- lic Christian marriages. Why is this? It must first be noticed that the law for mixed marriages is not stricter than that for a marriage between Catholics. Since the same rule applies for purely Catholic marriages as for mixed marriages (i.e. for all marriages where 2t least one of the partners is a Catholic), it cannot be said that there is any element of discrimination. Whether or not there are deeper reasons as well, the clear reason why the mixed marriage is to be celebrated in the Catholic Church is that through observance of this rule the Church hopes for an assurance that the marriage

1 Members of the Church of England are perhaps most hurt by the fact that mixed marriages contracted before one of their priests, in one of their churches, and according to their ancient and beautiful rite are not regarded as true marri- ages by the Catholic Church. It seems offensive to them that such a ceremony has no more value for Catholics than an exchange of promises in a Register Office. It would be too long to give a full explanation here, but one can perhaps point out that the stand taken by the Church amounts to no more than a request for full loyalty on the part of the Catholic concerned. The Catholic Chuch is not in communion with the Church of England, the sacrament cannot be divided, and the Catholic is asked to give his consent in accordance with the marriage laws of his own Church. The situation is of course completely different in the case of a marriage between two non-Catholics in an Anglican Church.

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is in fact contracted according to Catholic doctrine; and this does not admit divorce, or unfaithfulness and it excludes everything that would violate the sanctity of even unborn life, understood in the traditional Catholic sense. Not all Christians hold these truths with the same h n e s s as do Catholics; and celebration in the Catholic Church clarifies the in- tention not only of the non-Catholic party, but of the Catholic party as well. Under such circumstances it cannot fail to be seen that marriage is meant to be indissoluble and holy. In practice also the necessity to contract in what is called ‘canonical form’ gives an opportunity to check the serious- ness of the promises mentioned above. It should be noted that the penalty of invalidity which may seem to be so severe is not in itself a sanction against mixed marriages as such. Nor perhaps is it a specifically Catholic sanction. The State takes similar action since in the absence of her own official the contract in question is null and void. Similar conditions obtain also among other religious bodies in Protestantism and Jewry.

At the same time a charge of inconsequent behaviour on the part of the Church is a conceivable one, namely that she imposes the Catholic cere- mony and then ensures that it is performed in the sacristy-as a ‘deterrent’ from mixed marriages. This objection is in many areas practically dated, although regional differences may be marked. In principle it isnow generally admitted among theologians and lawyers that everything should be done to show members of other confessions the sincerity of our good will. Much depends upon local conditions, but however the celebration is carried out it should not be a humiliation for either party. The prescribed circumstances should witness to the charity of Christ : unfriendliness, rigidity need have no place.

C O N C E R N A M O N G C A T H O L I C S

Apart from criticisms outside the Church present marriage legislation causes concern among Catholics as well. Writers of good authority, devoted apostles of unity among Christians persistently ask for changes in the law.

Authors are in the first instance concerned with an awkward fact. A large number of marriages are indeed contracted (or ‘attempted’) with a complete disregard for Canon Law. Hence, as marriages they are invalid. Admittedly precise information is rare, but such information as we have is staggering. Two examples are known: thus during 1955 not less than 80 out of 100 mixed marriages were invalid in Holland, and the figure of 58 out of 100 is given for the same year in Switzerland. There seems to be no reason to doubt these sample figures. A law in such circumstances, so the argument runs, when it is so patently disregarded by the majority

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ought to be abrogated. Good reasons may have existed in the past, but in practice the law is failing and we should look for another solution.

I t is true that when a law is not observed by the majority a change in legislation may have to be envisaged, if only to adapt a sublime ideal to sheer human weakness. But there are further queries to be made before we attempt a positive answer. Such figures as we have do not necessarily reflect the true situation. To see the problem in proportion the number of mixed marriages has to be considered in relation to purely Catholic marriages. If it is high the problem gains in importance, but if it is low clearly the force of this argument for change is diminished. Unfortunately at t h s stage reiable figures for countries other than Holland and Switzer- land are not so readily available; and it seems that some failure in observ- ance of the law has to be admitted and that the figure is either large or unknown.

On the basis of such an admission the argument continues by saying: (a) it would be easier to help those people who have married outside the Church, if their marriage were recognized as valid (although contracted in an illicit way); for the sacrament itself would be there, and the priest could touch the hearts of the contracting parties more easily.

That there is some force in this argument is undeniable. But it is natural to wonder whether giving the sacrament to those who are not interested in its reception is desirable. It must be remembered that such parties are quite free, and their decision to contract outside the Church is one quite freely adopted by them. It cannot be said that the sacrament has been denied to those who wanted it, but rather it was not given to those who did not ask for it.

(b ) It is also said that the matter is not so easily disposed of. The choice put before such parties was not a fair one. The non-Catholic had either to have his marriage blessed in a Catholic Church, or to separate from his chosen partner. To do the first may have been against his conscience, and to take the second course might have been against his deepest human love. By any standards this is surely an inhuman situation. The anguish must be admitted. Yet there is more to be said, for such a situation must be judged by its consequences. We may well ask what will follow from a marriage which began with no probability of any basic understanding between the partners in religious matters. The inhuman situation will make its impact every day in various forms: this may concern the education of children or the intimacy of conjugal life. We seem forced once more to admit that if there was no basic harmony in the beginning, it is not likely that it will come later. Nor is it by any means sure that in blessing such a union the Church would under the circumstances be acting in the best

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possible way. Doctrine and life for the Christian are very much intertwined, and if it is true that marriage is the symbol of the love of Christ for his Church, then is it not proper that some settlement on unity in faith should be achieved before the sacrament comes into being?

(c) But the difficulties are not yet exhausted. If, so the argument runs, invalid marriages outside the Church are so numerous, would it not serve the common good of mankind better to take a stricter line, and to say that all unions between Christians, contracted in or out of the Catholic Church, will be considered as valid marriages? Marriage as an institution is holy and it ought to be strengthened. But the present laws of the Church leave a loophole for abuse and for scandalous behaviour. A Catholic may marry a non-Catholic (or even a Catholic) outside the Church, and such a union will not be a sacrament; the parties will consequently be free to separate at any time (unless there is some obligation remaining on general moral principles, such as the need to look after any children born to the marriage). The case is thinkable in which the process has been repeated many times before finally the Catholic decides to marry a new partner, now for the first time in the Catholic Church and with the blessing of the priest. Such ill-regulated behaviour should be eliminated ; and anyone who attempts a marriage and is not hindered by a grave impediment should know that he is contracting a sacred obligation which entails absolute fidelity. And from this there should be no dispensation. By making all marriages between Christians valid, wherever and however contracted, the Church would do nothing but good for all. Such a course would incident- ally correspond to the pre-Tridentine tradition.

This argument is a serious one. A change in legislation would doubtless help to eliminate the scandal of a Catholic who marries outside the Church, perhaps more than once, and who then finally decides to bind himself for life by contracting a new union with a new partner in valid and due form. However, there is another side to this problem and it concerns divorce. We find that there is a higher divorce rate for canonically invalid unions. Would it be a wise step to make them all sacraments with the purpose of rendering marriage a holier thing, when a great number of such unions do break up in any event? A simple answer to this question is difficult. One would like to have more precise information about the number of such invalid marriages and their correlative divorce rate. This is a crucial point and one can readily agree that no move is desirable without greater cer- tainty as to current trends. What is certain is that to abolish the law im- posing the canonical form on mixed marriages is an act that would cut deeply. All mixed marriages contracted outside the Church would become sacramental marriages regardless of their prospective stability. No

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attention would be paid to individual cases and all would be bound for life. Is this desirable? To find the most balanced solution is anything but easy.

The desire of some Catholics for a radical change in the law and especi- ally their desire for the abolition of the canonical form as obligatory in mixed marriages certainly deserves consideration. But that in the present state of our information their arguments turn the balance it is very difficult to say. In order to be fair to all it remains to listen to those who are opposed to substantial changes in the legislation.

T H O S E W H O D E F E N D T H E L A W

At the outset those who do not desire to see a radical change effected by the abolition of the obligatory form for validity while retaining it for liceity only point out that the evolution of the present legislation was too gradual to justify its abolition in a day. It began at the Council of Trent, and has developed gradually, always in the same direction and always with the same determination. Here it is argued is a good reason for caution since the growth in legislation may well have accompanied growth in the Church's practical wisdom.

More particularly reluctance to change centres upon the duty to educate children, born of mixed marriages, in the Catholic religion. This duty is not man-made: it springs, they say, from a divine law. The parent who is in possession of the truth has the obligation to communicate that truth to the child and from this he cannot abdicate. The obligation springs in the concrete from the parent's baptism, his confirmation, and from the sacrament of his marriage and from the fact of his voluntary acceptance of his own child. Nor should it be forgotten that a child born of a mixed marriage, once baptized, has a right to the whole of the evangelical message, i.e. in its Catholic form. The Church has to do all she can to ensure that her tiny member should receive this good message and the sacraments of eternal life; and she does this by requesting the guarantee of a Catholic education. Thisargument, they insist, is more than mere argument: it is the description of the practical attitude of the Church for many centuries now. They claim that there is no cogent proof that a change would be advantageous.

Sometimes a further point is made on pastoral grounds. The necessity of obtaining a dispensation, of giving the promises, and of solemnizing the contract in a Catholic Church brings the intending partners into close contact with a Catholic priest. This contact can and, it is hoped, should easily develop into a good relationship which persists after the marriage and which may perhaps be the occasion of many a spiritual benefit.

Finally the reason that impelled the Fathers of Trent to oppose hidden

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marriages recurs. If mixed marriages were contracted outside the Catholic Church, in many cases we should not know whether such a marriage were valid or not. Doubt would remain as to whether the parties had intended to contract a marriage according to the laws of a State that admits divorce, or as to whether they really took up the rights and duties of married life as nature and religion demand. There would be uncertainty all round. The same could be true concerning marriages contracted before a non-Catholic minister of religion.

Protestant Churches that admit divorce are not rare: what from the Catholic point of view would be the value of such a marriage? Canon lawyers distinguish between what they call simple error in celebrating the marriage, and the positive exclusion of a Christian marriage. In the former case a person wants to contract absolutely, but erroneously thinks the marriage can be dissolved : his marriage would be valid and indissoluble ; but in the latter case a person positively excludes an essential right or duty that belongs to the married state, e.g. the duty of fidelity ‘till death do us part’; and this marriage would be null and void. The distinction as it stands in the manuals is beautifully clear; but it is an awkward and difficult one in practice.

Hence-again the argument runs-in order to avoid an infinite number of doubts, especially in these days of widespread divorce, let us ask all those who wish to contract a mixed marriage to do so in the Catholic form. Before Trent there was the problem of hidden marriages, but nobody doubted that if it could be established that a marriage had in fact been contracted it was binding till death. Today there is the problem of hidden intentions: everybody has to contract publicly, but in some countries nobody knows if a civil marriage, or a marriage contracted in a non- Catholic church, is canonically valid or not. There would seem to be no point in reviving a pre-Tridentine difficulty in a different form.’ If one wishes to evaluate it, there is some weight in this argument although this

1 It is interesting to note that some years ago a strong request was made by some experienced and responsible laymen, writing in the English Catholic press, that marriage contracted by baptized non-Catholics before an official of the State (in the Register Office) should not be presumed to be sacramental marriages since the parties, by choosing the civil form of marriage, would have demon- strated beyond reasonable doubt that they did not intend to contract a Christian marriage, and that they did not want to bind themselves for life. The marriage of two baptized non-Catholics should have been presumed to be a sacrament only if and when the parties went through a religious (Christian) ceremony. The wheel has now come full circle, and there are many today who demand that all mixed marriages, even if contracted in merely civil form, should be allowed to be the sacrament of marriage.

T H E C O M P L E X QUESTION O F M I X E D M A R R I A G E S 381

will vary from place to place. In Scandinavian countries all that was said about clandestinity of intention is probably right. I would hesitate to affirm it so categorically for Germany and Switzerland.

T O W A R D S A S O L U T I O N

In a problem of such complexity as that of mixed marriages it is not likely that a sweeping solution can be found which will bring relief to the aggrieved or do justice to all concerned. It cannot be too much stressed that so long as we are dealing with Christians who should be one in Christ, and as long as that unity is not there, the root of the evil has not been removed.

With the present legislation the Church has established a certain unity. It is far from being perfect, but it does assure a certain harmony in a family where the parents are divided in their faith. It is true that this unity favours the Catholic faith in everything, but this is without deception or demands of insincerity from the non-Catholic party whose loyalty is counted upon.

The legislation is fairly recent: but this proves little one way or another. It may be that the Church has recently come to a better and deeper under- standing of God’s laws about education and the nature of matrimonial difficulties, and it may be that this legislation is the fruit of this insight. On the other hand, the legislation may be in the nature of a purely dis- ciplinary measure, without new insights. If the former is true no change will come about easily, but otherwise new legislation might well be envis- aged. I would not dare to exclude the first possibility for I do not think that we are dealing with merely disciplinary measures, unrelated to doctrine.

A preliminary towards new legislation will be to determine whether we are seeking to bring about a new state of things on a world-wide scale with legislation universally applicable, or whether the object is rather to find a specific answer to local problems by particular laws promulgated by the Holy See or by the local and regional hierarchies. In favour of universal legislation it can be said that the world has now become too small for mere local legislation. Ease of travel makes evasion of local laws more of a temptation, and local or regional privilege can be resented. This would be particularly true in Europe which is becoming one country for many such purposes. Differences between Holland and Belgium, or Austria and Germany would be quite impracticable. In favour of local legislation it can be said that even in Europe there are varied reactions as to whether or not the promises can be conscientiously signed by the non-Catholic party. However, I feel that there is great weight in the argument that

382 LADISLAS O R S Y

the world has become one. To return to the provision of the Apostolic Letter, Provida, would be to put the clock back. In the Western world at least there should be uniformity.

Yet the choice between universal and local legislation is in itself un- satisfactory. A compromise, if there is to be one, could be devised by which general legislation could be brought in for all, while at the same time power could be given to the local bishops to examine each case presenting particular and exceptional difficulty on its own merits. And it would be for the bishop to apply the appropriate remedy, a solution in which law is tempered by equity, and impersonal rule adapted to a personal situation. If such bishops concurred in giving dispensations they would thus initiate local customs and help the organic growth of local laws-better than sweeping legislation.

P A R T I C U L A R P R O B L E M S

Liturgy and ceremonial. Once a dispensation has been given, the Church should show her benevolence and love towards both parties. The cele- bration should be a true liturgical service. Whether or not Mass should be celebrated can be a matter of practical policy. There is no certain theological reason against it. Whether also by exception, generally for the sake of the non-Catholic family, the parties should be allowed to re- peat the manifestation of their consent before a non-Catholic minister is best left to the local bishop to judge.

The promise to work for the conversion of the non-Catholic party. It is often said that this promise relating to the prayer and example of the Catho- lic party in regard to the non-Catholic is offensive. The Catholic in fact has two obligations: he must with tact and discretion work for the conversion of the non-Catholic, and he must at the same time respect the bonafides of his partner’s conscience. Whether or not in a given place this promise should be made in writing, or orally, and in precisely what terms, if at all, could again well be left to the local hierarchies to decide.

The education ofchildren. The problem of education for the children in the Catholic faith is a weighty one. The Church herself cannot change the duty of the Catholic party to educate all the children in the true religion. This duty is imposed by the law of God and cannot be renounced. Nor can an exception be made for some of the children. In a wholly Catholic marriage, which in this regard must be considered as the norm, the duty of Catholic education is shared between both parents. In the case of the mixed marriage the Catholic party carries this responsibility alone. Any pact or agreement to divide the children in faith is out of the question for the

THE COMPLEX QUESTION OF MIXED M A R R I A G E S 383

Catholic, for each child has the absolute rights of a person: once baptized the child is a child of God and this has priority over his being naturally the child of his earthly parents. He is thus entitled to be fed with the word of God, and with his sacraments.

Admittedly the Church has in the past tolerated that in some places the boys should follow the religion of their father, and the girls the religion of their mother. I cannot find any evidence that the Church really consented to such a practice. It was tolerated because, as it appears, she could not help it and did not want to worsen an already tense or unfriendly relation- ship with the civil Government. Similarly there may have been exceptional cases where a Catholic husband or wife had to tolerate the education of the children in a non-Catholic religion; but this was only tolerating what could not be changed.

In practice the division of faith among children of the same family implies either continuous strains and tensions, or religious indifference. In a large majority of cases this is true. Few families would and could have all the tact, discretion and faith that would prevent a double religious practice from building up either tension or indifference in the family; and Church legislation must clearly envisage the many rather than the few. It follows that there is not much probability that the Church will make any concession in the field of the education of the children.

There remains the manner of making the promise. There may be ex- treme cases where the Catholic partner can do no more than promise that he will do everything in his power to ensure the Catholic education of the children. I think that the necessity in principle of a promise on the part of the non-Catholic partner should be upheld. So-called equivalent promises are now admitted in mission countries and in practice the local hierarchies will know best what external form such a promise should take, and to what extent an implicit promise would suffice.

Canonical form. Finally there is the problem of the duty imposed on all who want to contract a mixed marriage to do so in the Catholic Church- ad validitatem, in order to contract at all. This is the cardinal point as has been seen. To keep the form means to continue to give the impression of intolerance. To cancel the form means to make all (mixed) marriages contracted outside the Catholic Church good, valid and indissoluble. Considered in an abstract way this might appear to be a good thing, but a priest who has to deal with a variety of marriage problems, including nullity claims, will remain hesitant and very hesitant. Experience makes him reluctant to see unions, frequently unprepared, contracted in a hurry and so beset with difficulties from the beginning, become for practical purposes indissoluble bonds. It is easy to advocate making all such marriages

384 L A D I S L A S O R S Y

sacraments, but the second evil may turn out worse than the first. What priest in a parish has failed to discover that it is sometimes better not to make a marriage a sacrament by convalidatio or sanatio, because the germ of discord is there, and the tension between the partners is likely to come to breaking point very shortly? This is especially true of mixed marriages contracted outside the Church and no one doubts the higher divorce rate that accompanies these. In general reviews of the situation I have been surprised to see how few are the writers who weigh both sides of this vexing problem. Above all, the obligatory form has a deep religious value: the married life begins in the name of God, with the blessing of the mystical Christ, the Church. The case for the sudden abolition of the obligatory form (for validity) does not appear proved beyond reasonable doubt.

Perhaps again the most reasonable solution would be to keep the form obligatory for validity, but to give power to bishops to deal with cases on their own merits, by granting dispensation from the form when it is genu- inely needed. Such a course would not make the sacrament available to all and sundry, even to those who are not interested, as would the abolition of the form; but the application of the law would proceed with discretion, every case being weighed, and the best that the Church can do would be available to all. The law would be universal, but its application would not be impersonal and equity would have its part. Such a blend of universality with local and personal needs would be the best guarantee of a solution that would be permanent.

We are of course most of all concerned, not with those who keep the law, but with those who do not keep it and who live in an invalid marriage. Once more the suggestion would seem worth making that the bishop should have power to deal with such cases individually. If he is satisfied that the intention of the parties was to contract a Christian marriage, that the religious education of the children is assured, and that there will be respect for the consciences of both the Catholic and the non-Catholic parties, then let the sacrament come into life by removing all legal obstacles through a sanatio in radice. Such would be the solution in a case where a repetition of the ceremony in its Catholic form is not possible, or would involve too great a hardship for one of the parties.

If, in conclusion, the reader puts down this article with the impression that the question of mixed marriages is a very complex one, full of pitfalls, and not lending itself to easy and sweeping solutions he will not be far from the reality. It is expected that the problem will be raised before the Fathers at the second session of the Council. May they be guided to a balanced and lasting solution.

T H E C O M P L E X QUESTION O F M I X E D M A R R I A G E S 385

APPENDIX: SOME RECENT PUBLICATIONS ON THE PROBLEM OF MIXED MARRIAGES

Amgwerd, Andre, ‘Pour une pastorale des mariages mixtes’, Choisir,

Bernard, Jean, ‘Le deuxikme concile du Vatican et le probleme des

Bertrams, Wilhelm, ‘Die kirchlich giiltige Ehe’, Orientierung, 26 (1 962),

Biot, FranCois, O.P., ‘Les mariages mixtes en Allemagne’, Istina, 7

Bockle, Franz, ‘Das Problem der Mischehe’, Anima, 17 (l962), pp. 302-10. BrCchet, Raymond, ‘Enqugte sur les mariages mixtes’, Choisir, 41 (Mars

Candolfi, Joseph, ‘Mariages mixtes en Suisse’, Choisir, 40 (FCvrier 1963)

Candolfi, Josef, ‘Mischehen in der Schweiz’, Orientierung, 27 (1963),

‘Correspondance sur les mariages mixtes’, Informations catholiques inter-

Haring, B., C.SS.R., ‘Mariage mixte et Concile’, Nouvelle Revue

Ursy, Ladislas, S.J., ‘De forma canonica in matrimoniis mixtae reli-

Reidick, Gertrude, ‘Die Mischehe-Stein des Anstosses zwischen den

Rouquette, Robert, ‘De Rome et de la chrCtientC’, Etudes, 314 (1962),

Sartory, Thomas, O.S.B., ‘Konfessionalistisches Apartheidsdenken?’,

‘Seelsorge an der Mischehe’, a special number of Lebendige Seelsorge,

‘Un probleme oecumenique : Les mariages mixtes’, Informations catho-

van Leeuwen, B., O.F.M., ‘Het gemengde huwelijk’, Sociaal kompas 5

Wilkens, Erwin, ‘Reform of the Roman Catholic Law on Mixed

Wilkens, Erwin, ‘Reform des romisch-katholischen Mischehenrechtes’,

42 (Avril1963), pp. 214 .

mariages mixtes’, Revue de droit canonique, 12 (1 962), pp. 15 1-62.

pp. 197-202.

(1960), pp. 233-46.

1963), pp. 10-12.

pp. 16-18.

pp. 73-5.

nationales, 187 (ler Mars 1963), p. 30.

Thhologique, 84 (1962), pp. 699-708.

gionis’, Periodica de re morali canonica liturgica, 52 (1963), pp. 320-347.

Konfessionen’, Una Sancta, 16 (1961), pp. 212-26.

pp. 110-19.

Una Sancta, I8 (1 963), pp. 125-8.

12(1961),pp. 213-55.

liques internationales, 185 (ler Fevrier 1963), pp. 17-24.

(Assen, 1959), pp. xi, 424.

Marriages’, The Ecumenical Review, 14 (1962), pp. 43748.

Una Sancta, 17 (1962), pp. 188-96.