REFORM OF THE ROMAN CATHOLIC LAW

ON MIXED MARRIAGES

ERWINWILKENS

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
438 THE ECUMENICAL REVIEW

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 circum-
stances 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.

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.
REFORM OF THE ROMAN CATHOLIC LAW ON MIXED MARRIAGES 439

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 circumstancesof 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 funda-
mental 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
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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 attri-
buted 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 them-
selves 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
REFORM OF THE ROMAN CATHOLIC LAW ON MIXFD MARRIAGES 441

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 sacramentalcharacter 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
442 THE ECUMENICAL REVIEW

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 mar-
riage 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 ecclesias-
tical 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
REFORM OF THB ROMAN CATHOLIC LAW ON MIXED MARRIAGES 443

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:
444 THE ECUMENICAL REVIEW

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 indis-
pensable conditions must sanction the granting of an exception, ca.
1061-64. :
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
REFORM OF THE ROMAN CATHOLIC LAW ON MIXED MARRIAGES 445

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
REFORM OF THE ROMAN CATHOLIC LAW ON MIXED MARRIAGES 447
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 circum-
stances 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 confes-
sions. 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
448 THE ECUMENICAL REVIEW

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.