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Is the ‘Pauline Privilege’ an exception to Church teaching on the indissolubility of marriage?

Answering that question requires clarity on some basic marriage concepts and terms.

(Brooke Cagle @brookecagle/Unsplash.com)

Is the “Pauline Privilege” (I Corinthians VII: 12-15, Canons 1143-1147) an exception to Church teaching on the indissolubility of marriage (Matthew XIX: 3-9, Mark X: 2-12, Canon 1141), indeed, an exception that suggests the possibility of the Church’s somehow countenancing the post-divorce civil marriages of Catholics even though such unions constitute “public and permanent adultery” (CCC 2384)? Answering that question requires clarity on some basic marriage concepts and terms.

Canonically, there are four kinds of marriage, namely, marriage:

(I) between two non-baptized parties (e.g., Jews, Muslims, Hindus, Mormons);

(II) between a baptized party and a non-baptized party (e.g., a Catholic-Jewish marriage);

(III) between two baptized parties (e.g., Catholics, Protestants) that has not been consummated; and,

(IV) between two baptized parties that has been consummated.

The Church (here, through her canon law) sees profound commonalities and profound differences among these kinds of marriage regarding, among other things, indissolubility, validity, and sacramentality, all of which impact the operation of the Pauline Privilege.

As to indissolubility

The Church regards all four kinds of marriage as being, by natural law (and not by Catholic theology), “intrinsically indissoluble”, that is, she holds that no spouse or couple (say, by invoking civil laws of divorce, and regardless of religious affiliation) can, by their own will or action, break or dissolve their marriage.

The Church regards three of those kinds of marriage (those between two non-baptized parties, a baptized party and a non-baptized party, and two baptized parties if it has not been consummated) as being, under certain strictly defined conditions, “extrinsically dissoluble”, that is, as a matter of Catholic belief (and not natural law), the Church sees the possibility that, notwithstanding the “intrinsic indissolubility” of all marriage, something other than the will or act of the parties (specifically, the operation of the Pauline Privilege, the sometimes-called Petrine Privilege, or papal dissolution, respectively) can dissolve a marriage. In the great pool of divorce cases that the Church deals with, Paulines, Petrines, or papal dissolutions comprise the proverbial drop in the bucket (at least in the First World), but exist they do and sometimes they are perceived, or are proposed, as being disquieting exceptions to Church teaching on the indissolubility of marriage—why they are not can be deduced from the above, but let’s keep going.

The Church regards one kind of marriage, namely marriage between two baptized parties that has been consummated, as being not just “intrinsically indissoluble” (like all marriages) but also as “extrinsically indissoluble”, that is, she holds that no power on earth (not the parties, certainly not the State, not even the Church herself) can dissolve them. Only death ends such marriages. Of course, consummated marriages between baptized persons are the kind of marriages most often dealt with by Church pastors and personnel, but it is important to recall that these marriages are just one of the four kinds of marriage out there.

Now, because the Church holds that all marriages on earth are(intrinsically) indissoluble and because she holds that all consummated Christian marriages are (intrinsically and extrinsically) indissoluble it is easy to so why some people wrongly think that the Church holds all marriages to be (looking for a new adjective here) ‘completely’ or ‘totally’ indissoluble and stumble from that mistaken conclusion into seeing anything departing from that (false) norm as the Church quietly making exceptions for her friends, exceptions that border on hypocrisy or that at least open the door to other ‘exceptions’ to her teaching on indissolubility. Not so, some will already see, but let’s keep getting clear on terms.

About validity

All four kinds of marriage listed above enjoy what canonists call ‘the presumption of validity’, that is, world-wide, pretty much anything that looks like a marriage is presumed by the Church to be a marriage if only because marriage is, before anything else, a natural institution that human beings are naturally suited to enter. When a Church tribunal declares a marriage “null”, it does nothing to the marriage, but rather, says something about the marriage, specifically, that what appeared to be marriage has, upon closer and expert investigation, been shown not to have satisfied one or more requirements for marriage after all. Argue, if one will, about whether there are too many or too few such findings of in-validity; but understand that a declaration of nullity is not the breaking or dissolving of a marriage for the Church has judged that there is, after all, no marriage there to break.

Re: sacramentality

Of the four kinds of marriages outlined above, all, but only, those marriages between two baptized (whether Catholic or not) parties are considered sacramental.

Here, two points are important: First, the canonical term for a marriage between two baptized parties is “ratum” (ratified) even though in common parlance “ratified” would seem to apply to all four kinds of marriage once consent has been expressed. The Church uses, I suggest, a special word for matrimonial consent between two baptized persons because such consent brings about not only a marriage but also one of her seven sacraments, Matrimony. Notice, too, a marriage between two baptized parties is “ratum”, hence sacramental, even before it is “consummatum” (consummated), and it is wrong for anyone to say that a Church tribunal investigates whether a given marriage is “sacramental”, for sacramentality is a consequence of a marriage being between two baptized persons whereas tribunals investigate only whether a given marriage is valid, and not whether it happens to be sacramental (based on the baptismal status of the parties).

Second, the only time “consummation” is canonically significant is in a marriage between two Christians. The sexual use of the marriage-sacrament (already “intrinsically indissoluble” because it is a marriage) by two Christians is canonical proof against the rare but real “extrinsic dissolubility” to which non-sacramental and even sacramental-but-non-consummated marriages are liable.

We’re now ready to talk about the Pauline Privilege.

This won’t take long.

Canon 1141 (reflecting, I think, infallible Church teaching, but that is a case I need not make now) states “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.” Those who know what these terms mean will understand better what this canon is, and is not, saying: all, but only, those marriages between two baptized persons that have been consummated (i.e., the fourth kind of marriage above) are (again, using a new adjective here) ‘completely’ or ‘totally’ indissoluble short of death. By implication, however, any other kind of marriage, notwithstanding its validity and natural goodness, is liable, under unusual and strictly interpreted conditions, to the possibility of being dissolved by something other than death.

Thus, because the Pauline Privilege operates only in regard to marriages between two non-baptized persons (i.e., the first kind of marriage outlined above) while Canon 1141 applies only to the consummated sacramental marriages between two Christians (i.e., fourth kind of marriage above), Paulines are obviously not exceptions to the rule proclaimed in Canon 1141 because the two very different canonical institutes deal with two very different kinds of marriage and because neither norm violates settled Church teaching, resting on natural law, upholding the intrinsic indissolubility of all marriage on earth.

(This post originally appeared on the “In the Light of the Law” site and is reposted here by kind permission of Dr. Peters.)

About Edward N. Peters 95 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.

4 Comments

  1. Opinion: Either all marriages are intrinsically indissoluble or they are not. Intrinsic means by nature. Now grave sin adultery is evil by nature. Extrinsic cause in favor of the faith is an exception. I agree it must be the rule that a person be permitted to leave a marital union [non baptized persons] intrinsically indissoluble by natural law because of the supernatural law in favor of the faith and salvation. Although agreeing to this exception does not mean the exception is universal if it were claimed as such regarding a ratified consummated first marriage and the validity of the second marriage by the D&R. If we return to the question of grave sin [the claim by progressives suggested in Amoris that there are exceptions] the argument seems valid regarding indult from adultery and grave sin for D&R. Is this an insoluble impasse? No because divine law is revealed in the Church’s pronounced Magisterial decision to bind and loosen and permit a divorce from a moral and natural legal union in favor of the faith as in Pauline/Petrine Privilege. The error today in using this argument in favor of D&R is that the Roman Pontiff has not definitively pronounced [sententia definitive intenda] such an exception as valid [personally I do not believe God will permit this or any Pontiff to do that which is why this Pontiff knowingly attempts it obliquely and invalidly by insertion of letters in the Acta Apostoicae].

    • Pater, you make several points, and I respond to only one: “Either all marriages are intrinsically indissoluble or they are not. Intrinsic means by nature.” Careful here. Your understanding of “intrinsic” is philosophically, and even commonly, correct. BUT, in this area of canon law, the word “intrinsic” has taken on a technical meaning along the lines I explained (and reinforced by usually leaving the phrase in quote marks). I grant it is not a happy term and is liable to the confusion you (and many others, including canon lawyers) point out, but it is the term canon law uses, so are are, for now, stuck with it. Best, dr.p.

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