Marriage, Divorce and The Pauline Privilege

by Randal D. Noller

Catholics, along with others in the United States, face a severe marriage crisis. Our disposable society has accepted that we use products and services when we need or want them and then discard them when we are finished or no longer wish to deal with the issues or resulting side effects. This thought process has extended to marriage and families as well. When the relationship becomes difficult, as most do at one time or another, many simply discard the relationship and search for a new one without the problems. One of the problems with this is that nearly all relationships develop problems at one time or another, so the cycle continues and no relationship is truly permanent. Divorce has become almost expected.

Marriage is dead! The twin vises of church and law have relaxed their grip on matrimony. We’ve been liberated from the grim obligation to stay in a poisonous or abusive marriage for the sake of the kids or for appearances. The divorce rate has stayed constant at nearly 50 percent for the last two decades. The ease with which we enter and dissolve unions makes marriage seem like a prime-time spectator sport, whether it’s Britney Spears in Vegas or bimbos chasing after the Bachelor. 1

The Roman Catholic Church has always viewed marriage quite differently. Marriage by its very nature is permanent and is elevated to the level of a sacrament. Christ Himself affirmed the indissolubility of marriage when He said, “So they are no longer two but one. What therefore God has joined together, let no man put asunder.” 2

Christian marriage according to God’s law establishes three relationships: the relationship between husband and wife (“they shall become as one flesh”); a second between God and the man; and a third between God and the woman. God is the constant factor in this triangular relationship, which can only be dissolved by the death of one of the spouses.

The Council of Trent defined Catholic doctrine on the sacrament of marriage, “The first parent of the human race, under the influence of the Divine Spirit, pronounced the bond of Matrimony perpetual and indissoluble…”3

The Code of Canon Law states, “The matrimonial covenant, by which a man and woman establish between themselves a partnership of the whole life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.”4

Further, “The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament.” 5

Invalid Marriage

Human beings in weakness or lack of understanding or knowledge, sometimes make serious mistakes. Under certain conditions, the Church recognizes this and distinguishes between valid and invalid marriages.

Certain marriages are invalid from the beginning due to impediments to marriage. Discovered ahead of time, these impediments would require that the marriage not be performed. At times, they are not discovered until after the fact. Canon Law specifies several Diriment impediments6 , which make invalid and nullify marriage between the persons affected by them. These include the following:7

Insufficient age (minimum 16 years for men and 14 years for women)

Perpetual impotence of either party dating from before the marriage. This is simply the inability to perform the marital act, and does not include sterility.

Bond of Prior Marriage – a previous valid marriage exists, which has not been dissolved.

Disparity of Cult – This impediment nullifies marriage between an unbaptized person and one baptized in or converted to the Catholic faith.

Sacred Orders – Clerics cannot validly marry

Solemn Vows – Religious who have taken solemn vows cannot marry

Abduction – One abducted and forced to marry

Crime – Adultery accompanied by a promise to marry or their attempt at civil marriage; adultery accompanied by the murder of the lawful spouse; mutual cooperation in the murder of the lawful spouse.

Consanguity – A blood relationship between husband and wife’s blood relatives in the direct line (through second cousins).

Affinity – Affinity creates between a husband and wife’s blood relatives. (A widow or widower may not marry a parent or grandparent or direct descendant of a deceased spouse.)

Public Decency – A relationship resembling affinity that arises from an invalid marriage or notorious concubinage through the first cousins.

Spiritual Relationship – arising from baptism, invalidates the marriage of the baptized person with his or her sponsor or minister of the sacrament.

Legal Relationship – Relationship by adoption, which would invalidate the marriage by civil law.

In many of these cases, or in the case of an unconsummated marriage, the Church can find that the marriage is invalid or null. In a finding of nullity, the marital bond can be dissolved, or annulled, indicating that the marriage was not valid and therefore not binding. This process must take place through the Tribunal at the diocese where the persons reside. The declaration of nullity is a finding that something essential was lacking in the marriage. Depending on the specific reason and situation, the Church may find that the union was null from the beginning and not spiritually binding for life. Some of these reasons are listed as impediments, but each situation has specific facts which must be considered by the Tribunal. An annulment does not constitute a moral judgment of the persons, but rather a finding of the facts of the marriage.

The Pauline Privilege

Some have called the Pauline Privilege a “Catholic divorce.” It is not. A Pauline Privilege is the dissolution of a purely natural (not sacramental) marriage which had been contracted between two non-Christians, one of whom has since become a Christian. The Pauline Privilege is so-named because it is based upon the apostle Paul's words in I Corinthians. As you read further, you will see that the Pauline Privilege is no simple formula, and is certainly not a divorce. Neither Christ nor the Church accepts divorce, and as we have seen, marriage is truly sacred. Some marriages however, were not sacred from their beginning. In these marriages, neither party was a Christian or a Catholic. When at a later time, one partner converts and is baptized, questions about the marriage may arise. The Pauline Privilege differs from an annulment because it dissolves a real but natural marriage. An annulment is a declaration that there never was a valid marriage to begin with.

“A marriage entered into by two non-baptized persons is dissolved by means of the Pauline Privilege in favor of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs.”8

The Pauline Privilege is based upon St. Paul’s first letter to the Corinthians,

“To the rest I say, not the Lord, that if any brother has a wife who is an unbeliever, and she consents to live with him, he should not divorce her. If any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him…But if the unbelieving partner desires to separate, let it be so; in such a case, the brother or sister is not bound. For God has called us to peace.”9

Valid Christian marriage performed without impediment as noted above cannot be dissolved or annulled. “The marriage bond has been established by God Himself in such a way that a marriage concluded and consummated between baptized persons can never be dissolved.”10

God does however, dissolve the marital relationship in certain circumstances. The simplest example would be the death of a spouse.

Thus a married woman is bound by law to her husband as long as he lives; but if her husband dies she is discharged from the law concerning her husband. … But if her husband dies she is free from that law, and if she marries another man she is not an adulteress.11

We can see then, that the marriage relationship can be dissolved under certain circumstances and that God recognizes this dissolution. In the case of dissolution by the death of a spouse, He recognizes the right of the living spouse to remarry.

The Pauline Privilege does not apply to the death of a spouse, but recognizes that certain marriages, while valid, were not sacramental (not “Christian”).  A marriage between two unbaptized persons is not a sacramental marriage. St. Paul’s inspired words in I Corinthians tell us that when one of the married persons has been baptized into the Catholic faith and the other remains an unbeliever, unwilling to live in peace with the believer, then the believer is not bound by the marriage. While Paul does not say specifically that the marriage is dissolved, the Church takes it to mean so, or the believer would not be free to remarry and the words would not contain the full truth. We know that St. Paul was divinely inspired to write those words, and therefore they do contain the full truth. The Church has then determined exactly how and under what conditions the “Pauline Privilege” may be exercised. According to the Church’s interpretation, the dissolution of a marriage that was contracted before the conversion and baptism of one of the parties does not take place upon mere separation of the parties, but only when a new marriage was entered into by the believer invoking this privilege.

Then only may the yoke of the matrimonial bond with an infidel be understood to be loosed when the convert spouse…proceeds to another marriage with a believer.12

If the non-believing party agrees to live with the believer in peace, then they should remain married. However, if the non-believing party does not agree to live in peace, then the believing party can be released from the bond of the non-sacramental marriage and is free to remarry. Even if the non-believing spouse agrees, but then acts contrary to this by abusing the Christian religion, tempting the Christian to infidelity, prevents the children from being raised in Christian faith, or becomes votia temptation for the Christian to commit mortal sin, then the latter retains the right to proceed to a new marriage. 13

Because of the serious and threatening conditions of a believer living with a non-believer, the Church determines in most circumstances to interpret the meaning of living in peace as whether the non-Christian is willing to accept the faith. In the case that the non-Christian refuses, then permission may be granted to the believing party to enter into a new marriage and thereby dissolve the previous one. This is what is meant when the Pauline Privilege is used in favor of the faith. The Church has then, the right to – in favor of the faith - dissolve a marriage that was contracted in infidelity (unbelief). Since according to I Cor. 7:12-15, these marriages are not absolutely indissoluble according to Divine right as stated by St. Paul, it then follows that the power to make this decision resides with the Church.  This power was granted to the successor of St. Peter:

I will give you the keys of the kingdom of heaven, and whatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven.14

The Pope has determined that the local bishops exercise this authority. The diocesan Tribunal reviews each case for final determination.

The Petrine Privilege

The Pauline Privilege does not apply when a Christian has married a non-Christian. In those cases, a natural marriage exists and can be dissolved for a just cause, but by what is called the Petrine Privilege rather than by the Pauline Privilege. The Petrine Privilege is so-named because it is reserved to the Holy See, so only Rome can grant the Petrine Privilege. The Petrine Privilege is rarely approved. It is the dissolution of a valid, but non-sacramental, natural bond of marriage by the Holy See in certain, specified cases. The determination is based on case-specific facts and circumstances, and is not often used.

 A biblical precedent for the Petrine Privilege, where some of the faithful marry unbelievers and then are permitted to divorce them, is found in the book of Ezra where the Jews put away their foreign (pagan) wives.

…We have broken faith with our God and have married foreign women from the people of the land…Therefore let us make a covenant with our God to put away all these wives and their children, according to the counsel of my lord…

…separate yourselves from the peoples of the land and from the foreign wives.15

It is unfortunate in our society today that divorce has become a fact of life. Even otherwise good and faithful Catholics have been affected by this sad situation, and they then find themselves outside full communion with the Church. John Paul II has issued numerous letters to the bishops reminding them that divorced and remarried Catholics cannot receive the Eucharist if they do not have a decree of nullity, or approved and invoked Pauline Privilege or Petrine Privilege. This is not a new “rule” of the Church, but simply reaffirms the Church’s constant teachings on the indissolubility of sacramental marriage and the conditions necessary to worthily receive Communion.

It is true that some well-meaning priests and some dissenting theologians have offered contrary advice in the name of “pastoral considerations” not wanting to “punish” or alienate otherwise “good people” who have suffered in some way from a first marriage. The answer seems harsh, but is simple – the bond of a valid and sacramental marriage lasts until death – period. If the person’s conditions warrant, application should be made through the local priest to the diocese for consideration of a Pauline Privilege or other status as discussed. However, a word of caution is advised in this situation. A divorced Catholic who is waiting on the judgment from a diocesan tribunal is not even free to date, much less remarry until he receives the decree. A person in this situation must rely on God’s grace to carry the cross of loneliness, and attempt to use his time productively for the good of the Church. The person should talk with his priest as often as necessary and attempt to understand that our union with the Mystical Body of Christ can provide us with both consolation and with the strength to fulfill our moral duties in any given situation.

While a civil divorce in and of itself does not prevent Catholics from receiving the Eucharist, this assumes that they are living chaste lives and are in a state of grace free from mortal sin. A remarriage outside the Church however is an adulterous and therefore sinful relationship. Such people commit a mortal sin each time they engage in marital relations. A person in the state of mortal sin cannot receive Communion. This denial of access to the Eucharist because of remarriage after divorce is addressed in the Catechism:

“…they cannot receive Eucharistic communion as long as this situation persists. For the same reason they cannot exercise certain ecclesial responsibilities. Reconciliation through the sacrament of Penance can be granted only to those who have repented for having violated the sign of the covenant of fidelity to Christ, and who are committed to living in complete continence.” 16

These are difficult words to say to fellow human beings and especially to fellow Catholics whom we love. Being “sensitive” however does not help them, but only advances their state.17 We do not advance their salvation by reaffirming them in error. Dealing with people, most especially friends and loved ones, who are in invalid marriages is not easy. However, we do them good by telling them the truth.

We must also understand that having a failed marriage, and even entering into a second -  if invalid marriage, does not make them “bad people.” Our sinful culture is the result of a society that advances contraception, divorce, homosexuality, pornography and even the denial of God. It comes as no surprise that some Catholics along with others will be lulled into a false belief. It is our duty however, to educate them and if possible assist them in determining a way back into full communion with the Church. If we love them and wish the good of their immortal souls, we must implore them to get themselves back on the straight path with our Lord and His Holy Church.

Several options have been pointed out. For some, a decree of nullity will be the appropriate option. Many others will find that the Pauline Privilege will allow them to re-enter the Church in the fullness that Christ intends. A few may find that the Petrine Privilege is required. All of these options take some time and it is the petitioner’s responsibility to get the facts, discuss the situation with his priest and then act according to his conscience as educated by Christ and the Church.

Conclusion

Many Catholics who are divorced or on their second marriage can in fact be brought back into full communion with the Church if they meet the criteria. Unfortunately, some cannot and should search their hearts and consciences and pray diligently to work towards reconciling with God and the Church.  We should guide them gently to a priest to discuss their individual situations, and we must pray for them. These issues are our business. We have been commanded by Christ, “You shall love your neighbor as yourself,”18 and further, “I give you a new commandment: love one another. As I have love you, so you also should love one another.”19

We are to love one another as Christ Himself loved us. Christ loved us such that he suffered and died an excruciating death, and then rose from the dead so that we could be saved from our sins and live eternal life with Him. He cares deeply for our lives and our eternal souls. By that example, we cannot sit idly by and allow our fellow and beloved members to remain in a state of sin without at the least, attempting to help them.

---

Randy Noller is the founder of The Catholic Public Square. He is also active in several organizations such as the Family Research Council, The Catholic League for Religious and Civil Rights, The Catholic Business Network of Central Virginia, the Catholic Writers' Assn., Thomas More Law Foundation, The Society for Scholarly Publishing, Militia Immaculata, and others.

This item 7272 digitally provided courtesy of CatholicCulture.org