CDW, The Case of a Permanent Deacon Requesting a Dispensation from an Irregularity to Exercise Holy Orders due to an Attempted Civil Marriage (c.1044, §2, 1°) and from the Impediment of c. 1087, 1991. Private.
The exchange of letters pertaining to this case begins with a letter of August 20, 1991, from the adjutant judicial vicar of the diocese in the United States in which the deacon is incardinated and the Congregation for Divine Worship and the Discipline of the Sacraments:
Archbishop Peter has received the petition of a permanent deacon requesting both the dispensation from the irregularity to exercise the diaconal order due to a civil marriage (c. 1044, §2, 1°) as well as the
dispensation from c. 1087 so that he may convalidate his present civil marriage now that his previous union has been annulled. Since both of these dispensations are reserved to the Holy See (cc. 1078, §2, 1° and 1047, §2, 1°), the Archbishop has asked me to assist in the preparation of the Roman petition.
The purpose of this letter is to seek the advice of the Congregation. A brief summary of the petitioner’s case is as follows:
At the time when the petitioner was ordained a permanent deacon for the Archdiocese of Solsolis in 1979, he was bound in what was then thought to be a valid marriage. Circumstances in that marriage led to a civil divorce. Without benefit of counsel from the authorities of the Church, the petitioner re-married civilly in 1989, thus incurring his irregularity to exercise the diaconate. He proceeded to petition the Church for an annulment of his previous marriage, and this annulment was granted by this tribunal and confirmed by the tribunal of the court of appeal in April of this year, still leaving the petitioner in an invalid marriage due to the prescriptions of c. 1087. In June of this year, the petitioner, who now lives in the Diocese of Duenorth, wrote to Archbishop Peter asking for the above-mentioned dispensations.
After considering the circumstances and the facts of the case, Archbishop Peter is favorably inclined to petition the Holy See for the dispensation to allow this man’s present marriage to be convalidated so that he and his Catholic spouse might return to the sacraments. However, the Archbishop is not inclined to submit a petition to dispense the man from the irregularity to exercise the diaconate.
My question is as follows:
Is it sufficient, according to the present practice of the Holy See, to ask simply for the dispensation from c. 1087, recognizing and leaving the man with the perpetual irregularity to exercise the diaconate, or must the man’s irregularity to exercise the diaconate be addressed and resolved first in a formal manner prior to the consideration of the request for the dispensation to marry?
I would appreciate the response of the Congregation to this question, along with any suggestions with regard to the procedures that the Congregation would suggest that we follow in this particular case.
Following is the response of September 20, 1991, received from the Congregation for Divine Worship and the Discipline of the Sacraments one month later:
We would like to respond to your letter of 20 August 1991 in which you inquire about a petition made to Archbishop Peter by a permanent
deacon. You note that the deacon has requested both the “dispensation from the irregularity to exercise the diaconal order due to a civil marriage (c. 1044, §2), as well as the dispensation from c. 1087 so that he may convalidate his present civil marriage now that his previous union has been annulled.”
Regarding the question, we wish to clarify the following points:
1) In the presentation of the case it is important to determine whether the second woman with whom the deacon contracted a civil marriage in 1989, was free, and whether she was canonically free or only civilly free (divorced). This information is needed in order to ascertain whether (from the perspective of having contracted civil marriage with a woman bound by a valid marriage) the irregularity might have been caused, to which c. 1041, 3° joined to c. 1044, §1, 3° refers.
2) The permanent deacon in question was not bound by a true marriage bond with the first wife (in fact, it was declared null) and therefore was not affected by the impediment of a bond from a prior marriage (c. 1085, §1). From this perspective, the second civil marriage should be convalidated only for the lack of canonical form (on condition that the second wife was canonically free).
3) But, the permanent deacon in question was bound by holy orders when he civilly remarried and, from this perspective contracted both the irregularity to exercise holy orders (c. 1044, §1, 3° joined to c. 1041, °3), and an invalid marriage, not only by defect of canonical form but also because of the impediment of holy orders which is reserved to the Holy See (cc. 1087 and 1078, §2, 1°).
4) A dispensation is needed from the irregularity to exercise orders, and from the impediment referred to in c. 1087 to contract valid marriage with the second woman.
Because the Archbishop refuses to retain the deacon in the exercise of orders, the Holy See, upon receipt of the favorable vote of the Archbishop accompanying the formal request of the deacon addressed to the Holy Father for a reduction to the lay state (c. 290, 3°), could grant the same and a radical sanation of the civil marriage (c. 1165, §2) in the event that the parties are not willing to convalidate the marriage according to cc. 1156 ff.
CDW, August-September 1991, The Permanent Diaconate and the Sacrament of Marriage, RRAO (1992): 33-36.