Today’s meeting with you, members of the Tribunal of the Roman Rota, is an appropriate setting for also speaking to the whole Church about the limits of the Roman Pontiff’s power over ratified and consummated marriage, which ‘cannot be dissolved by any human power or for any reason other than death’ (CIC, can. 1141; CCEO, can. 853). By its very nature this formulation of canon law is not only disciplinary or prudential, but corresponds to a doctrinal truth that the Church has always held. Nevertheless, there is an increasingly widespread idea that the Roman Pontiff’s power, being the vicarious exercise of Christ’s divine power, is not one of those human powers referred to in the canons cited above, and thus it could be extended in some cases also to the dissolution of ratified and consummated marriages. In view of the doubts and anxieties this idea could cause, it is necessary to reaffirm that a ratified and consummated sacramental marriage can never be dissolved, not even by the power of the Roman Pontiff. The opposite assertion would imply the thesis that there is no absolutely indissoluble marriage, which would be contrary to what the Church has taught and still teaches about the indissolubility of the marital bond. (John Paul II. Address to the Tribunal of the Roman Rota, no. 6, January 21, 2000)

The Roman Pontiff in fact has the ‘sacra potestas’ to teach the truth of the Gospel, administer the sacraments and pastorally govern the Church in the name and with the authority of Christ, but this power does not include per se any power over the divine law, natural or positive. Neither Scripture nor Tradition recognizes any faculty of the Roman Pontiff for dissolving a ratified and consummated marriage; on the contrary, the Church’s constant practice shows the certain knowledge of Tradition that such a power does not exist. The forceful expressions of the Roman Pontiffs are only the faithful echo and authentic interpretation of the Church’s permanent conviction. It seems quite clear then that the non-extension of the Roman Pontiff’s power to ratified and consummated sacramental marriages is taught by the Church’s Magisterium as a doctrine to be held definitively, even if it has not been solemnly declared by a defining act. This doctrine, in fact, has been explicitly proposed by the Roman Pontiffs in categorical terms, in a constant way and over a sufficiently long period of time. It was made their own and taught by all the Bishops in communion with the See of Peter, with the knowledge that it must always be held and accepted by the faithful. In this sense it was reaffirmed by the Catechism of the Catholic Church. Besides, it is a doctrine confirmed by the Church’s centuries-old practice, maintained with full fidelity and heroism, sometimes even in the face of severe pressures from the mighty of this world. (John Paul II. Address to the Tribunal of the Roman Rota, no. 8, January 21, 2000)

The Lord Jesus insisted on the original intention of the Creator who willed that marriage be indissoluble (cf. Mt 5:31-32; 19:3-9; Mk 10 9; Lk 16:18; 1 Cor 7:10-11). He abrogates the accommodations that had slipped into the old Law (cf. Mt 19:7-9.) Between the baptized, ‘a ratified and consummated marriage cannot be dissolved by any human power or for any reason other than death’(CIC, can. 1141.) (Catechism of the Catholic Church, no. 2382)

The consent by which the spouses mutually give and receive one another is sealed by God himself (cf. Mk 10:9). From their covenant arises ‘an institution, confirmed by the divine law, …even in the eyes of society’ (GS 48#1). The covenant between the spouses is integrated into God’s covenant with man: ‘Authentic married love is caught up into divine love’ (GS 48 #2). Thus 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. This bond, which results from the free human act of the spouses and their consummation of the marriage, is a reality, henceforth irrevocable, and gives rise to a covenant guaranteed by God’s fidelity. The Church does not have the power to contravene this disposition of divine wisdom (cf. CIC, can. 1141). (Catechism of the Catholic Church, no. 1639-1640)

‘And so, whatever marriage is said to be contracted, either it is so contracted that it is really a true marriage, in which case it carries with it that enduring bond which by divine right is inherent in every true marriage; or it is thought to be contracted without that perpetual bond, and in that case there is no marriage, but an illicit union opposed of its very nature to the divine law, which therefore cannot be entered into or maintained’ (Pius VI, Rescript. ad Episc. Agriens., 11 July 1789). And if this stability seems to be open to exception, however rare the exception may be, as in the case of certain natural marriages between unbelievers, or amongst Christians in the case of those marriages which though valid have not been consummated, that exception does not depend on the will of men nor on that of any merely human power, but on divine law, of which the only guardian and interpreter is the Church of Christ. However, not even this power can ever affect for any cause whatsoever a Christian marriage which is valid and has been consummated, for as it is plain that here the marriage contract has its full completion, so, by the will of God, there is also the greatest firmness and indissolubility which may not be destroyed by any human authority. (Pius XI. Encyclical Casti connubii, no. 34, December 31, 1930)

Why the church cannot dissolve a marriage that is ‘ratum et consummatum’ this Christological vision of Christian marriage allows one to understand why the Church cannot claim for herself the right to dissolve a marriage ratum et consummatum, i.e., a marriage that is sacramentally contracted in the Church and ratified by the spouses through the marriage act. In effect, the entire communion of life, which humanly speaking defines the marriage, evokes in its own way the realism of the Incarnation in which the Son of God becomes one with mankind in the flesh. In committing themselves to each other without reserve, the couple signifies by this act their effective transition to the conjugal life in which love becomes a sharing as absolute as possible of each other. They thus enter into the human behavior whose irrevocable character was recalled by Christ and which he made an image that reveals his own mystery. The Church cannot have any power, then, over the reality of a conjugal union that has passed into the power of him whose mystery she must announce and not hinder. (International Theological Commission. Propositions on the Doctrine of Christian Marriage, no. 13, 1977)

So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate. (Mt 19:6)

A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death. (Code of Canon Law, Can. 1141)

While, on the contrary, now that the faithful must remember that even though separated as to bed and board, they remain none the less bound by the bond of marriage with no hope of marrying another, they are by this very fact rendered less prone to strife and discord. And even if it sometimes happens that husband and wife become separated, and are unable to bear the want of their partnership any longer, they are easily reconciled by friends and return to their common life. (Catechism of Trent, II, VII, VI, C – no. 2700)

If therefore the Church has not erred and does not err in teaching this, and consequently it is certain that the bond of marriage cannot be loosed even on account of the sin of adultery, it is evident that all the other weaker excuses that can be, and are usually brought forward, are of no value whatsoever. And the objections brought against the firmness of the marriage bond are easily answered. For, in certain circumstances, imperfect separation of the parties is allowed, the bond not being severed. This separation, which the Church herself permits, and expressly mentions in her Canon Law in those canons which deal with the separation of the parties as to marital relationship and co-habitation, removes all the alleged inconveniences and dangers. It will be for the sacred law and, to some extent, also the civil law, in so far as civil matters are affected, to lay down the grounds, the conditions, the method and precautions to be taken in a case of this kind in order to safeguard the education of the children and the well-being of the family, and to remove all those evils which threaten the married persons, the children and the State. (Pius XI. Encyclical Casti connubii, no. 89, December 31, 1930)

If one of the faithful, previously dispensed, contracts marriage with an unbeliever, it is understood that it was contracted with the explicit condition that the unbeliever wishes to cohabitate with the other without offense to the Creator. Therefore, if the unbeliever does not fulfill the cited condition, remedies that the law determines for these situations should be applied such that they be kept; otherwise they should separate as regards the bed and co-habitation, but not with respect to the bond. In consequence, in the hypothesis which is dealt with, the faithful may not marry again, while the unfaithful spouse is still alive. (Clement XIII. Response Saepe contingit of the Holy Office to the Bishop of Cochin India, August 1, 1759)

To the married, however, I give this instruction (not I, but the Lord): a wife should not separate from her husband – and if she does separate she must either remain single or become reconciled to her husband – and a husband should not divorce his wife. (1 Cor 7: 10-11)

The situation is similar for people who have undergone divorce, but, being well aware that the valid marriage bond is indissoluble, refrain from becoming involved in a new union and devote themselves solely to carrying out their family duties and the responsibilities of Christian life. In such cases their example of fidelity and Christian consistency takes on particular value as a witness before the world and the Church. Here it is even more necessary for the Church to offer continual love and assistance, without there being any obstacle to admission to the sacraments. (John Paul II. Apostolic Exhortation Familiaris consortio, no. 83, November 22, 1981)

Certainly, ‘the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed’, and in this case the parties ‘are free to marry, provided the natural obligations of a previous union are discharged’ (CCC, n. 1629). However, declarations of nullity for the reasons established by the canonical norms, especially for the lack or defects of marital consent (cf. CIC, can. 1095-1107), cannot conflict with the principle of indissolubility. (John Paul II. Address to the Tribunal of the Roman Rota, no. 4, January 21, 2000)

The indissolubility of marriage is a teaching that comes from Christ himself, and the first duty of pastors and pastoral workers is therefore to help couples overcome whatever difficulties arise. The referral of matrimonial cases to the tribunal should be a last resort. Great care must be taken when explaining to the faithful what a declaration of nullity is, in order to avoid the danger of its being conceived as divorce under a different name. The tribunal exercises a ministry of truth: its purpose is ‘to ascertain whether or not the facts exist that by natural, divine or ecclesiastical law invalidate the marriage, in order to be able to issue a true and just sentence concerning the alleged non-existence of the marriage bond’ (Address to the Roman Rota, February 4, 1980, No. 2). The process leading to a judicial decision about the alleged nullity of marriage should demonstrate two aspects of the Church’s pastoral mission. First, it should manifest clearly the desire to be faithful to the Lord’s teaching concerning the permanent nature of sacramental marriage. Secondly, it should be inspired by genuine pastoral concern for those who seek the ministry of the tribunal in order to clarify their status in the Church. (John Paul II. Address to the Bishops of the Episcopal Conference of the United States of America, Colorado, Wyoming, Utah, Arizona and New Mexico, no. 4, October 17, 1998)

The attitude of the Church is, in contrast, favourable to convalidating, where possible, marriages that are otherwise null (cf. CIC, can. 1676; CCEO, can. 1362). It is true that the declaration of the nullity of a marriage, based on the truth acquired by means of a legitimate process, restores peace to the conscience, but such a declaration – and the same holds true for the dissolution of a marriage that is ratum non consummatum or a dissolution based upon the privilege of the faith – must be presented and effected in an ecclesial context that is totally favourable to the indissolubility of marriage and to family founded upon it. The spouses themselves must be the first to realize that only in the loyal quest for the truth can they find their true good, without excluding a priori the possible convalidation of a union that, although it is not yet a sacramental marriage, contains elements of good, for themselves and their children, that should be carefully evaluated in conscience before reaching a different decision. (John Paul II. Address to the Prelate Auditors, Officials and Advocates of the Tribunal of the Roman Rota, no.6, January 28, 2002)

Then what can one say to the argument which holds that the failure of conjugal life implies the invalidity of the marriage? Unfortunately, this erroneous assertion is sometimes so forceful as to become a generalized prejudice that leads people to seek grounds for nullity as a merely formal justification of a pronouncement that is actually based on the empirical factor of matrimonial failure. This unjust formalism of those who are opposed to the traditional favor matrimonii can lead them to forget that, in accordance with human experience marked by sin, a valid marriage can fail because of the spouses’ own misuse of freedom. (John Paul II. Address to the members of the Tribunal of the Roman Rota for the Inauguration of the judicial year, no. 5, January 29, 2004)

At this point the second observation spontaneously arises: no trial is against the other party, as though it were a question of inflicting unjust damage. The purpose is not to take a good away from anyone but rather to establish and protect the possession of goods by people and institutions. In addition to this point, valid in every trial, there is another, more specific point in the hypothesis of matrimonial nullity. Here, the parties are not contending for some possession that must be attributed to one or the other. The trial’s aim is rather to declare the truth about the validity or invalidity of an actual marriage, in other words, about a reality that establishes the institution of the family and deeply concerns the Church and civil society. (Benedict XVI. Address to the members of the Tribunal of the Roman Rota, January 28, 2006)

Charity without justice is not charity, but a counterfeit, because charity itself requires that objectivity which is typical of justice and which must not be confused with inhuman coldness. In this regard, as my Predecessor, Venerable Pope John Paul II, said in his Address on the relationship between pastoral care and the law: “The judge… must always guard against the risk of misplaced compassion, which could degenerate into sentimentality, itself pastoral only in appearance” (18 Jan 1990). One must avoid pseudo-pastoral claims that would situate questions on a purely horizontal plane, in which what matters is to satisfy subjective requests to arrive at a declaration of nullity at any cost, so that the parties may be able to overcome, among other things, obstacles to receiving the Sacraments of Penance and the Eucharist. The supreme good of readmission to Eucharistic Communion after sacramental Reconciliation demands, instead, that due consideration be given to the authentic good of the individuals, inseparable from the truth of their canonical situation. It would be a false “good” and a grave lack of justice and love to pave the way for them to receive the sacraments nevertheless, and would risk causing them to live in objective contradiction to the truth of their own personal condition. (Benedict XVI. Address on the Occasion of the Inauguration of the Judicial Year of the Tribunal of the Roman Rota, January 29, 2010)

Thanks to this work, the concrete reality in causes of matrimonial nullity is objectively judged in light of criteria that constantly reaffirm the reality of matrimonial indissolubility, open to every man and woman in accordance with the plan of God, Creator and Saviour. Constant effort is needed to attain that unity of the criteria of justice which essentially characterizes the notion of jurisprudence itself and is a fundamental presupposition for its activity. In the Church, precisely because of her universality and the diversity of the juridical cultures in which she is called to operate, there is always a risk that “local forms of jurisprudence” develop, sensim sine sensu, ever more distant from the common interpretation of positive law and also from the Church’s teaching on matrimony. I hope that appropriate means may be studied to make rotal jurisprudence more and more manifestly unitive as well as effectively accessible to all who exercise justice, in order to ensure its uniform application in all Church tribunals. The value of interventions of the Ecclesiastical Magisterium on matrimonial and juridical issues, including the Roman Pontiff’s Discourses to the Roman Rota, should also be seen in this realistic perspective. They are a ready guide for the work of all Church tribunals, since they authoritatively teach the essential aspects of the reality of marriage. (Benedict XVI. Address to the members of the Tribunal of the Roman Rota, January 26, 2008)

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. (Code of Canon Law, Can. 1143 §1)

I would like to quote in particular a statement of Pius XII: ‘A ratified and consummated marriage is by divine law indissoluble, since it cannot be dissolved by any human authority (can. 1118); while other marriages, although intrinsically indissoluble, still do not have an absolute extrinsic indissolubility, but, under certain necessary conditions, can (it is a question, as everyone knows, of relatively rare cases) be dissolved not only by virtue of the Pauline privilege, but also by the Roman Pontiff in virtue of his ministerial power’ (Address to the Roman Rota, 3 October 1941) With these words Pius XII gave an explicit interpretation of canon 1118, corresponding to the present canon 1141 of the Code of Canon Law, and to canon 853 of the Code of Canons of the Eastern Churches, in the sense that the expression ‘human power’ also includes the Pope’s ministerial or vicarious power, and he presented this doctrine as being peacefully held by all experts in the matter. In this context it would also be appropriate to quote the Catechism of the Catholic Church, with the great doctrinal authority conferred on it by the involvement of the whole Episcopate in its drafting and by my special approval. We read there: ‘Thus 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. This bond, which results from the free human act of the spouses and their consummation of the marriage, is a reality, henceforth irrevocable, and gives rise to a covenant guaranteed by God’s fidelity. The Church does not have the power to contravene this disposition of divine wisdom’ (n. 1640). (John Paul II. Address to the Tribunal of the Roman Rota, no. 7, January 21, 2000)

Marriage between a Christian and a pagan should be avoided at all cost; however, if previous to the obtaining the dispensation of the disparity of cult from the Holy See, a marriage of this type occurs, it is known to be indissoluble with respect to the bond, and that there will only be a possibility of incurring separation of co-habitation, in the case that there exists canonical motives under the ecclesiastical judge. Therefore, never, as long as the unfaithful husband lives, even if it be in concubinage, may the Christian woman contract a marriage. When, however, one refers to a pagan that is the spouse of a pagan who lives in concubinage, and who converts (the woman), then she may use the privilege granted in favor of the faith, after having made the interpellation (as before – for the dispensation), the other not wishing to convert or cohabitate without offense to the Creator, and consequently does not renounce to continue living in concubinage – something that evidently cannot occur without an offense of the Creator. (Pius IX. Instruction Propositis dubiis of the Holy Office to the Apostolic Vicar of Siangyang, China, July 4, 1855)

As it is noted, this Congregation has treated and long studied the question of the dissolution of marriage in favor of the faith. Now, finally, after a diligent examination of the problem, Pope Paul VI granted his approval to these new norms, in which are articulated the conditions for granting the dissolution of a marriage in favor of the faith, whether on the part of the petitioner who is baptized whether converted or not.
In order to validly grant the dissolution, three conditions are absolutely necessary:
a) that one of the two spouses had not received baptism throughout the entire time of the conjugal life;
b) that there was no exercise of marital life after the actual baptism received by the non-baptized party.
c) that the person who is not-baptized or baptized outside the Catholic Church allows the Catholic party the freedom and the right to profess his or her own religion and also to baptize and educate the children as Catholics: this condition is to be guaranteed, as a precautionary measure. (Congregation for the Doctrine of the Faith, Instruction on the dissolution of marriage in favor of the faith, December 6, 1973)