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REFORM OF THE ROMAN CATHOLIC LAW ON MIXED MARRIAGES

ERWIN WILKENS

The rest if the Christian world will measure the readiness of the Second Vatican Council to undertake reform by its ecumenical attitude. There is nothing in the Roman Catholic Church which so sorely needs reforming as its relationship with the rest of the Christian world. Up to now Rome has equated herself in a very definite way with the Church of Jesus Christ and has called upon all those Christians separated from her to return to her. It is not until a change takes place here that it will be possible to speak of a reform.

Against this background the problem of mixed marriages between Roman Catholic and non-Roman Christians is of outstanding ecumenical importance. The law of the Catholic Church on mixed marriages is a faithful reflection of its claim to ecclesiastical exclusiveness. Parts of this law, however, go back to a “pre-ecumenical period of conflict” (Otto Karrer). The way in which Rome handles the question of mixed marriages in the future must therefore be appraised as the touchstone of an authentic desire for effective rapprochement between the churches.

Like marriage in general, mixed marriages are far from constituting one of the peripheral problems in the theological debate between Roman and non-Christians. According to the Roman Catholic conception, marriage is a sacramental HeiZsgemeinschaft (redemptive fellowship), As such it is part of the Church’s life and being. Thus, in the doctrinal conversation with Rome, the question of marriage forms part of the major ecumenical theme of ecclesiology . Everything which is discussed here concerning the limits of the Church and membership of it, concerning the relation between the Church of Jesus Christ and the confessions, concerning the sacramental reality of non-Catholic communities, and concerning the place of law in the church and the relation of the redemptive fellowship of the church to secular institutions, has a direct bearing on the question of marriage. The outstanding theological

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importance which all questions concerning marriage thus assume explains as the same time the whole difficulty and delicacy of the ecumenical conversation with Rome at this point.

In a theological conversation which has such broad rarrlifications, rapid solutions are not to be expected. But on the question of mixed marriages we have the advantage of being in the position of riot having to conduct the discussion on this level alone. There are already practical possibilities for a partial reform of the law on mixed marriages which need not impair the existing doctrinal and juridical foundations of the Roman Catholic Church. Thus it seems all the more to be ;i question of good will whether Rome is here prepared to make the indispensable minimum allowance for ecumenical exigencies and the actual circumstances of life.

In what follows it is impossible to separate the two levels of doctrinal foundations and practical possibilities. But a distinction should be drawn between the immediate and the ultimate goals. The ultimate goal remains real doctrinal agreement on the core of the apostolic witness to Jesus Christ on the major problems of the Church’s proclamation and also on the basic understanding of marriage. But this goal is unat- tainable unless already at this stage the churches meet each other with respect and Christian love in their mutual treatment of their members.

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I. Basic theological and legal questions

1. Between baptized Christians a valid marriage can c d y come about as a sacrament. This dogmatic statement is the basis of the law of the Roman Catholic Church concerning marriage and mixed marriages. According to this, marriage brings about an effectual participation in the union of Christ with the Church, it is an element in the sacramental Heilsordnung (scheme of salvation) and a constituent part of the life of the Church itself. This lofty conception of marriage contains a core of truth and deserves to be discussed ecumenically. Scripture obliges us to regard marriage in as close a relation as possible to communion with Jesus Christ. The mystery of marriage is bound up with the same love with which Jesus Christ loved his own even to the supreme sacrifice. OnIy through this love can the true unity of man and woman in marriage be realized. There is thus an interplay between proper married life on the one hand and the spiritual relationship to Jesus Christ on the other. It is for this reason, and this reason alone, that mixed marriage is in fact a serious problem.

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But Roman Catholic theology oversteps a limit which must not be overstepped when it conceives of marriage as a sacramental means of dispensing the divine grace of salvation. Marriage, however, can only be defined as a secular estate and an earthly lifelong partnership, which does not impart the grace of God in Jesus Christ, but receives it. In making this criticism one must further consider the great importance attached to law in the Roman Catholic conception of marriage. Marriage is understood as a contract and is therefore as such already a legal phenomenon. But according to this conception contract and sacrament are identical. Thus essential elements of a contract acquire an inappro- priate theological significance. The law of contract cannot manage without formal legal provisions and a legal casuistry which goes into every detail. The equation of sacrament and contract necessarily intro- duces the drawbacks of legalism into spiritual and personal relationships.

2. Further it must be noted that the Roman Catholic Church regards the law as a means of asserting itself as the Church of Jesus Christ. It is counted as part of the Church’s nature and task that it should regulate by law, and in this way safeguard, all its vital functions and all aspects of the Christian life of its members, and thus invest them with reality. To this end, the immutable divine law is first declared, unfolded and codified. The Church adds from its historical experience and from a sense of pastoral responsibility an ecclesiastical law with a catalogue of penal sanctions. This ecclesiastical law comes under the category of education and discipline, and is in principle capable of alteration and of adaptation to the historical circumstances of the moment.

This system of law fosters the temptation to invest as many legal maxims as possible with the supreme authority of the divine law. In addition there exists a tendency to confuse with each other the fundamental level of dogma and of divine law on the one hand, and the educa- tionnally defined level of ecclesiastical legislation on the other. In particular, the law regarding marriage is a classic example of how the boundaries dividing divine law from ecclesiastical law become blurred, Ecclesiastical law acquires thereby an authority which does not fall to it by nature. The effects of this are disconcerting. The sacramental effectiveness of marriage is bound to the observance of formal legal provisions. An offence against the latter results in the invalidation of the marriage and in total exclusion from the sacraments of the Church. Ecclesiastical law, which is dictated by the needs of the time, becomes the criterion for absolute religious and moral judgments, and moreover


also for exaggerated demands on state and society. The Chirch itself constructs grave causes of offence which weigh upon the consciences of the faithful and supposedly lay them open to the judgmenl of God.

3. Dogma and law are the basis of the Roman Catholic Church’s claim to total jurisdiction in the matter of marriage. Fundamentally all that is left to the secular power is to regulate the law concernin;; property and name. All baptized non-Catholics are included in this jurisdiction. The central factor is the legal maxim on the form in which the marriage is to be contracted, which was proclaimed by the Tametsi decree of the Council of Trent in 1563. According to this decree a valid sacramental marriage takes place only if it is contracted in the presence of the competent Roman Catholic priest as an officiating witness. It is important for our examination of this matter to note that Rome has never attributed to this general formal obligation the character of a compelling dogmatic necessity arising out of the nature of marriage. It is not the officiating priest who dispenses the sacrament, but the parties to the marriage dispense it to each other. The sacramental character of marriage depends not upon the form in which the marriage is contrncted, but upon the baptism of the marriage partners. So long as the haptism of non-Catholic Christians is recognized , their marriage must also count as a virtual sacrament. For this reason canon law states that non- Catholic Christians are exempt from the formal obligation AS defined by the Council of Trent and can contract a valid sacramental marriage outside the Catholic Church (can. 1099, para. 2, first promulgated by means of the Declaratio Benedictina of 1741 for Holland and Belgium). In fact, generally speaking, Rome was very circumspect in enforcing even upon Catholics the decree Tametsi of 1563, taking into account the prevailing circumstances in each case. It was not until the decree Ne tempere of 1908 that the formal obligation became bindins upon all Catholics. This remains an ecclesiastical regulation and is thus in principle capable of alteration. Here is one of the points at which a reform of law concerning mixed marriages could be started.

4. It is true that some recent tendencies in Roman Catholic theology, which are likely to bring about a decisive change in the law concerning the contraction of marriage, give cause for alarm. Accordmg to the interpretation prevailing hitherto, the baptized marriage partners themselves carry out the outward sign of the sacrament of marriage, i.e. they enter upon the marriage contract in the presence of the pries, who acts as witness and as guarantor of the ecclesiastical form of the marriage

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contract, and in this way they constitute the sacrament. The new theory (which is advocated by Klaus Morsdorf and Michael Schmaus, among others) adds the active collaboration of the priest as a constitutive factor in bringing about sacramental marriage. The theory of consent which has existed up to now, and according to which marriage is based upon the mutual exchange of consent to matrimony, is modifled and expanded by the theory of essential collaboration on the part of the Church. The ecclesiastical form of the marriage contracts thus acquires a value which it has not possessed hitherto, namely that of dogmatic necessity.

It must be admitted that such a development would make the present law on marriage and mixed marriages appear more logical. But at the same time the bridges would be destroyed which have hitherto linked the Roman Catholic conception of marriage with that of the rest of Christendom. By making provision for a dispensation from the external formal obligation Rome acknowledges the marriage of baptized non- Catholics as a valid sacramental marriage. It is not easy to imagine how dispensations can continue to be given if the collaboration of a priest is made dogmatically necessary. At the same time the law on mixed marriages would have to become even more stringent. This is the way which the exclusive conception of the Church contained in the encyclical Mystici corporis Christi of Pope Pius XI1 (1943), in conjunction which the increased emphasis upon the sacramental character of marriage, would suggest. But it is the way to further social and ecumenical isolation, and the Roman Catholic Church must be urgently warned about this. Marriage is not simply the domestic affair of the Church alone. It is a fundamental social institution and, at least in the form of mixed marriage, the common concern of Christendom.

II. On the history and the nature of the law on mixed mamages 1. Even if we turn our attention, in what must now be discussed,

away from the tendencies we have just described, it remains true that the categorical rejection of mixed marriages springs from the dogmatic and legal foundations of the Roman Catholic Church. Marriage as a HeiZsgemeinschuft (redemptive community) is held to be endangered if the two partners belong to different confessions and hold to different or even opposed beliefs about salvation. A mixed marriage will make the Roman Catholic partner run the risk of apostasy and will endanger the Catholic education of the children. If these dangers cannot be removed, the Catholic Church prohibits the marriage as a matter of


divine law to which there can be no exceptions. Furthermore, the Church supposes in a mixed marriage an inequality in the eyes of the: law that affects the Catholic partner, since the non-Catholic conception of marriage would permit divorce and remarriage. To secure marriage as a sacramental Heilsgemeinschaft, to protect the Catholic from apostasy and from inequality before the law, to guarantee a Catholic zducation of the children: these are the basic concerns of the Roman Catholic law on mixed marriages. Only where they are assured will the Church make an exception to the rule that a difference in religion must prohibit or at least delay marriage.

2. It is important for our present discussion that we glance at the history of the law on mixed marriages, which is closely linked with the treatment of the decree Tumetsi since its promulgation in 1563. To do this we must distinguish between mixed marriages contracted .according to the regular forms and those that are irregularly contracted.

According to the Tridentine law an irregularly contracted mixed marriage is invalid, since the Catholic partner is in any case subject to the obligation to observe the regular forms. For many years the Roman Catholic Church evaded this consequence in areas of substantially mixed populations by adapting the prescriptions for regularity of the ecclesiastical law for each particular situation. The Catholic certainly remained prohibited from entering into a mixed marriage contracted irregularly under pain of excommunication or exclusion from the sacraments. He could only, and still can only, be restored to full membership of his church by a complicated procedure for rehabilitation. But the 1741 Declaratio Benedictina, that allowed recognition of a purely non-Catholic marriage, also attributed sacramental validity to a mixed marriage contracted irregularly in spite of the prohibition. This legal situation gradually spread throughout Central Europe, to the point where it was explicitly re-confirmed for Germany, and later even for Hungary, by the Constitutio Providu of Pope Pius X in 1906.

To this day we lack an explanation of the step taken by tlhe Codex Juris Canonici that took effect on May 19th (Whitsunday) 1918 and which removed this provision for exceptions in what were then the most important areas of frequent mixed marriages ; it certainly surprised the German bishops at the time. All mixed marriages contracted after this date which are irregular according to the Tridentine prescriptions, i .e. without the participation of a Roman Catholic priest, are invalid and involve open sin. Now by Catholic conviction no invalid marriages

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can be allowed to continue; they must be broken off, subsequently authenticated or reordered in some other way that removes the offence. By this accentuation Rome has introduced a constant source of disquiet into mixed marriages. The Catholic partner of such a marriage has' only to obtain a civil divorce and can then validly marry again in church. This refutes the supposition of a one-sided inequality before the law affecting only the Catholic partner of a mixed marriage.

At the same time the Catholic Church has involved herself in a difficult situation. A purely non-Catholic marriage is recognised as a. sacramental marriage on the basis of the baptism of the partners, quite: apart from the Tridentine prescriptions. Rome will not want to gcl behind this recognition. But then there can be no convincing reason. why irregularity cannot also be overlooked in the case of a mixed marriage: and why it must rather result in an invalid marriage. If the prescriptions are treated on the one hand as of secondary importance for ecclesiastical law, they cannot be taken on the other as absolutely essential. The: result of the whole business is that an infringement of the prescriptions of canon law invalidates for disciplinary reasons the effects of baptism. and deprives even the non-Catholic partner of the marriage. Is there: not a certain irony here, that to such marriage partners there cannot. even be attributed the sort of natural marriage contracted by unbe-. lievers ? For here again baptism stands in the way in so far as the marriage: of Christians must be sacramental. This degradation of a mixed marriage, not contracted Catholically to the status of non-marriage or of a merely apparent conjugal relationship is untenable on both technical and; ecumenical grounds. The step taken by the Codex Juris Cunonici can. only possibly be understood as an educational experiment, as a trying- out of a new method of warning Catholics against mixed marriages.. The experiment is a total failure.

3. Even the form of mixed marriage that is permitted by the Roman Catholic Church deserves similar critical consideration. The discussions of the eighteenth and nineteenth centuries in various German states centred about the question of Catholic education of the children as the condition of marriage. In this field too the development of the discussion led from tolerance to intolerance, from a readiness to make concessions to an extreme severity. Again we note the fact that the Catholic Church began by seeing its way open to adapt itself to circumstances and to take into account the possibilities of the particuhr situation. The papal. letter of 1830 Literis altero abhinc unno to the Prussian dioceses will serve:


as an example. In this letter the priests were empowered to be present at the contracting of marriages even in cases where mixed marriages could not be prevented nor a promise of the Catholic education of the children secured. At the time Prussian law ruled that the confession of the children of mixed marriages should be that of the father.

The Codex Juris Cunonici of 1918 puts an end to all colicessions, even in the traditional areas of frequent mixed marriages. Once and for all it lays down a strict legal prohibition of mixed marriages and interprets the law on such marriages as a legal exception, to be granted only in cases of extreme necessity, can. 1060-61. The following indispensable conditions must sanction the granting of an exception, ca.

the marriage must be contracted in the presence of a Roman Catholic priest and be accompanied by a promise of Catholic education for the children ; the non-Catholic partner must promise to protect the Catholic partner from any danger of apostasy; the Catholic partner in turn is under the obligation to seek prudently for the conversion of :he other ; double weddings are forbidden.

There are also further prescriptions of detail that reveal the except- ional character and fundamentally undesirable nature of a mixed marriage (cp. can. 1026, 1102, 1109, 1131 0 1 : no banns ; prohibition of nuptial mass or nuptial benediction ; marriage to take place outside the church buildings ; “separation from board and bed” should one of thi: partners to a marriage join a non-Catholic community). No further etidence is necessary to show that this whole set of rulings represents a thorough discrimination against the non-Catholic communities and their members, and that it imposes from the very start a severe burden on each individual mixed marriage.

4. The question of the education of the children deservzs special mention. It has remained to this day the chief problem and has indeed become the determining factor of the law on mixed marriages. The Roman Catholic canonists have more and more insistently developed the idea that Catholic education is a commandment of the divine law. A Catholic who transgresses church law at this point cannot be rc:conciled. All efforts towards relaxation of the law on mixed marriages, towards easier authentication of mixed marriages irregularly contracted, and towards speedy restoration of a disobedient Catholic to hi3 Church run sooner or later into this hurdle. The insistence on Catholic education is even set above the fellowship of marriage, since canon law justifies

1061-64. :


a separation if the other partner brings the children up as non-Catholics, can. 1131 0 1.

The Roman Catholic Church is inclined to appeal to this apparem commandment of the divine law in explantation of her absolute inability to make any radical change in her practice with regard to mixed marriages, an attitude which violently and fruitlessly breaks off the whole discussiort about them. At the same time she asserts that the divine law validates only Roman Catholic Christians, which makes the equation of the Roman Church with the Church of Jesus Christ into an absolute found-. ation of ecclesiastical law. Now this does not only cut off the discussion about mixed marriages ; it brings the whole ecumenical discussion to an end before it has properly begun. Here again we see how closely the question of the law on mixed marriages is intertwined with the whole ecumenical question. We must also draw attention to the fact that the Catholic Church herself is far from having thought through to its logical conclusions her principle of catholic education. For it contradicts the legal rights of the child just as it does the parental rights which the Catholic Church insists on so strongly. She even involves herself in an absurd situation in those many countries whose civil law posits the religious freedom of children older than a certain age, when she respects this provision and manifestly welcomes it in order to authenticate an irregular mixed marriage. Indeed, some Roman Catholic theologians have spoken out lately in warning against making the condition of a subsequent conversion of the children necessary for the authentication of a marriage and the restoration of an excommunicated Catholic (e.g. Bernhard Haring and Otto Karrer).

III. The Renewal of the law on mixed marriages

1. By her law on mixed marriages the Roman Catholic Church aims to protect the religious unity and centre of marriage, and to give it the stability that God wills. Basically one can only agree with this aim. But precisely because we sympathise with the motive of the Roman Church we must express our grave doubts whether the present law is in fact fulfilling its aim. There is much evidence that this law has not alleviated the situation but has rather introduced additional tensions, both in the mixed marriages themselves that are taking place with increas- ing frequency and, more particularly, in inter-church relationships. We therefore consider that a radical reform of the law is inevitable for many reasons, of which the following are the chief:

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In this ecumenical age the non-Catholic can no longer be treated merely as a renegade from the true faith, against whom the Catholic must be protected by every possible sort of intim- idation and discrimination. Just as dogmatics are having to give a new description of the relation of the baptized non- Catholic to the Church of Jesus Christ, so must cliurch law grant a new status to the non-Catholic.

The rigid formality of the law on mixed marriages is inappro- priate both to the nature of marriage and to the Church’s pastoral responsibilities. Marriage is a personal relationship made up of human realities which cannot be comprehended by interpretations and influences that are merely legal. In the end of the day legal prescriptions can neither promote nor guarantee spiritual decisions and moral convictions.

The law on mixed marriages is preventing a common missionary approach by all Christians to the whole question of marriage. It reduces the conception of mixed marriage to tlie formal adherance of the partners to different confessions, whereas the main frontiers of unbelief cut across all confessional divisions. In face of this, the traditional conflict over mixed marriage appears an anachronism.

The present law on mixed marriages is based on the fiction that a mixed marriage can still always be treated as an exception. Yet the proportion of mixed marriages is now so high in many countries (in West Germany, for example, it comes to twenty-five per cent of all marriages) that one is forced to talk rather of a permanent practice. This gap between the law and the reality must be done away with as soon as possible if the Church is to avoid falling into ominous isolation and an apparently hopeless unrealism.

2. Among non-Catholics there is at present a lively debate on the question whether Rome will be able to make any concessions at all in the matter of mixed marriages. We observe the tendency in Catholic marriage law constantly to enlarge the area understood to be immutably laid down by dogma and the divine law. There will have to bt: thorough theological discussions about this. On the other hand, however, the Catholic Church is highly experienced in the art of using lo the full


the flexibility of church law and its capacities of adaptation. On this we set our hopes for a speedy reform of the law on mixed marriages.

It is not our task to suggest any exact legal formulas for such a reform. But in conclusion we present some principles towards a new law that arise put out of the present situation :

The practice of the churches with respect to mixed marriages must be brought into line with a predominantly pastoral concern. Such a concern would lead us to warn people against mixed marriages. But if one nevertheless takes place it must be protected against the impact of legal sanctions. In no circumstances may absolute divine commandments be extrapolated from the wishes of a church. A mixed marriage is a valid marriage. Therefore the churches must do all they can to stabilize this marriage. In particular a mixed marriage is not the place to insist on the unilateral claim to truth of one of the churches by means of legal pressure on the conscience of the marriage partners.

No confession may make her own church law binding on the members of another confession and thus lay claim to another’s conscience. Our common ecumenical task compels us to take into account the consciences and the sentiments of the other confessions and their members in all questions of the law on mixed marriages. The law on mixed marriages must be changed in such a way that both partners can continue to belong to their own confessions. When two Christians, who belong to and wish to remain faithful to two different confessions, enter into marriage with another, this is the truly fundamental case that should determine the churches’ policies and actions. For this reason the Roman Catholic Church will have to decide to make the reconciliation of the Catholic partner of an irregularly contracted mixed marriage easier than it is at present and in a way that does not bind the non-Catholic partner. We must rethink the position of the children of a mixed marriage. The churches are certainly entitled to lay an appropriate claim to the children of what they consider to be a mixed marriage. But our concern must be always with the decisions of the


consciences of the parents and the children involved. The religious education of the children must never be allowed to determine the validity of the marriage or the admission of the parents to the sacramental life of the Church.

The present Roman Catholic law on mixed marriages is trying to meet certain apparent ecclesiastical and spiritual relaxations with an even more rigorous legal severity. At this point we see clearly our chief difference with Rome: that we subordinate law to the gospel.