DIVORCE
59
DIVORCE
V
that the interpretation of the so-called ecclesiastical
officials, their approbation or disapprobation of the
civil marriage laws, might find expression in certain
cases should they refuse to bless an intended marriage
of people who had been divorced when the reason for
the divorce seemed to them to be too much opposed to
Scripture. It is not surprising that in this respect the
tendency should have been downwards, when we re-
member that in the various sects of Protestantism the
growth of liberalism has advanced even to the denial
of Christ [Dr. F. Albert, Verbrechen und Strafen als
Ehescheidungsgrund nach evangel. ICirclienrecht (in
Stutz,Kirchenr. Abhandlungen. Stuttgart, 1903), I, R"].
4. Declaration of Xullitn. — The declaration of nul- lity must be carefully distinguished from divorce proper. It can lie called divorce only in a verj' im- proper sense, because it presupposes that there is and has been no marriage. However, as there is question of an alleged marriage and of a union which is consid- ered by the public as a true marriage, we can under- stand why a previous ecclesiastical judgment should be required, declaring the presence of a diriment im- pediment and the consequent invalidity of a supposed marriage, before the persons in question might be free to separate or to enter upon a new marriage. It is only when the invalidity of a marriage becomes pub- licly known, and further cohabitation gives scandal, or when other important reasons render a prompt separation of domicile necessary or advisable, that such a separation shoultl take place at once, to be made definitive by a later judicial sentence. When the invalidity of a marriage is publicly known, official procedure is necessary, and the ecclesiastical process of nullification must be introduced. In the case of impediments which refer exclusively to the rights of the husband and wife, and which can be removed by their consent, only tlie one of the supposed spouses whose right is in question is permitted to impugn the marriage by complaint before the ecclesiastical court, provided it is desired to maintain this right. Such cases are the impediments of fear or violence, of essen- tial error, of impotence on the part of the other not fully established, and failure to comply with some fixed condition. In cases of the other possible impediments, every Cathohc, even a stranger, may enter a com- plaint of nullity if he can bring proofs of such nul- lity. The only plaintiffs excluded are those who, on account of private advantage, were unwilling to de- clare the invalidity of the marriage before its disso- lution by death, or who knew the impediment when the banns of marriage were proclaimed and culpably kept silence. Of course it is allowed to the married parties to disprove the reasons alleged by strangers against their marriage (Wernz, "Jus decretalium", IV, n. 743).
That separation and remarriage of the separated parties may not take place merely on account of pri- vate convictions of the invalidity of a supposed mar- riage, but only in consequence of an ecclesiastical judgment was taught by Alexander III and Innocent III in IV Decretal., xix, 3, and II Decretal., xiii. 13. In the earlier centuries the summary decision of the bishops sufficed; at present the Constitution of Bene- dict XIV, " Dei miseratione", 3 Xovember, 1741. must be followed. This prescribes that in matrimonial cases a "defender of the matrimonial tie" {dejetisor matrimonii) must be appointed. If the decision is for the validity of the marriage, there need be no appeal in the second instance. The parties can be satisfied with the first decision and continue in married life. If the decision is for the invalidity of the marriage, an appeal viust be entered, and sometimes even a second appeal to the court of third instance, so that it is only after two concordant decisions on the invalidity of the marriage in question that it can be regarded as invalid, and the parties are allowed to proceed to another marriage. (Cf. Ill Cone. plen. Baltim., App. 2G2 sqq.; Cone.
Amerie. latin., II, n. 16; Laiu-entius, "Instit. iuris
eccl.",2nd ed., n. 696 sqq.; Wernz," Jus decretal.", IV,
n. 744 sqq.) Sometimes, however, in missionary
countries. Apostolic prefects are permitted to give
summary decision of cases in which two concordant
opinions of approved theologians or canonists pro-
nounce the invalidity of the marriage to be beyond
doubt. Moreover, in cases of evident nullity, because
of a manifest impediment of blood-relationship or
affinity, of previous marriage, of the absence of form,
of lack of baptism on the part of one party, a second
sentence of nullity is no longer demanded (Deer, of the
Holy Office, 5 June, 1SS9. and 16 June, 1S94. Cf. Acta
S. Sedis, XXVII, 141; also Deer, of the Holv Office,
27 March, 1901, Acta S. Sedis, XXXIII, 756). The
court of first instance in the process of nullification is
the episcopal court of the diocese, of second instance
the metropolitan court, of third instance the Roman
See. Sometimes, however. Rome designates for the
third instance a metropohtan see of the country in
question (Laurentius, above, 697, not. 6). No one, how-
ever, is prohibited from immediate application in the
first instance to the Holy See. Custom reserves to the
Holy See matrimonial cases of reigning princes.
In the Decretals the declaration of nullity is treated under the title " De Divortiis". But it is important that these matters should be carefully distinguished from one another. The lack of exact distinction be- tween the expressions " declaration of invalidity" and " divorce ", and the different treatment of invalid mar- riages at different periods, may lead to incorrect judg- ments of ecclesiastical decisions. Decisions of partic- ular Chiu'ches are too easily regarded as dissolutions of valid marriages, where in fact they were oulj' dec- larations of nullity; and even papal decisions, like those of Gregory II communicated to St. Boniface and of Alexander III to the Bishop of Amiens, are looked on by some writers as permi.ssions granted by the popes to the Prankish Churches to chssolve a valid marriage in certain cases. The decision of Gregory II, in the year 726, was embodied in the collection of Gratian (C. xxxii, Q. vii, c. xviii), and is printed in "Mon. Germ. Hist.", Ill: Epist. (Epist. Merovingici et Karolini ip\-i I), p. 276; the decision of Alexander III is given in the Decretals as pars decisa. i. e., a part of the papal letter (IV Decretal., xv, 2) left out in the Decretal itself. In both cases there was question of a declaration of the invalidity of a marriage which was invalid from the very beginning because of antecedent impotence. A certain concession to the Prankish Churches was, how- ever, made in these cases. According to Roman custom such supposed husband and wife were not separated, but were bound to live together as brother and sister. In the Prankish Churches, however, a separation was pronounced and permission to contract another mar- riage was allowed to the one not afflicted with abso- lute impotence. This custom Alexander III granted to the Prankish Churches for the future. If. there- fore, the union in question is spoken of as a Icgitima conjunctio, or even as a legitimum matrimonium, this is done only on account of the external form of the mar- riage contract. That in such cases a diriment impedi- ment according to the natural law was present, and an actual marriage was impossible, was well understood by the pope. He says this expressly in the part of his letter that has been embodied in the Decretals (lA' De- cretal., XV, 2. Cf. Sagmiiller, " Die Elie Heinrichs II " in the Tubingen "Theol. Quartalsehr.", LXXXVII, 1905, S4 sqq.). That in similar cases decision has been given sometimes for separation and sometimes against it, nee<l excite no surprise, for even at the pres- ent day the ecclesiastical iilea of impotence on the part of the woman is not fully settled (cf. controversy in "The American Eccl. Review", XXVIII, 51 sqq.).
B. \on-Christicin Marriage Can Be Dissolved by Ab- solnie Divorce under Certain Circumstances in Favour of llie Failh.
