148. Affinity

1. Paulus, hearing the confession of Titius, came to knowledge of the nullity of his marriage from an occult impediment of affinity. Reasonably fearing that, if he were warned, he would withdraw from the marriage with public scandal, he is silent and dismisses him absolved. But afterward he asks from the Sacred Penitentiary a dispensation in the root.

It is asked: 1. What is the impediment of affinity? - 2. What is a dispensation in the root? - 3. Did Paulus act rightly?

R. To the 1st. Affinity is "the association of two kinships through the conjunction of man and woman." L. 4, § Affines de Gradib. It is contracted from intercourse, whether licit or illicit, by which man and woman become one flesh, c. 3, 5, cau. 33, and therefore from perfect intercourse. Therefore all blood-relatives of the man become affines to the woman, and consequently all blood-relatives of the woman become affines to the man. Hence affinity does not go beyond the persons themselves joined by intercourse. Affinity of this sort dirimently impedes marriage up to the fourth degree from licit copula, c. 8, de Consanguin., and up to the second from fornicatory copula, Trent, sess. 24, c. 4, de Ref. Matr.

To the 2nd. A dispensation in radice is a dispensation by which there is removed not only the incapacity of the person for contracting, or the defect of the form of the contract itself, but also the defect of consent, which is the root of marriage, is healed; whence, by that dispensation, no renewal of consent is needed, and it can be applied while either spouse or even both spouses are ignorant of it. Then by it offspring is rendered legitimate just as if it had been born from a legitimate marriage.

To the 3rd. Paulus did not act rightly; for he used knowledge from sacramental confession to the burden of the penitent himself. To the burden; for here one does not attend to whether the burden is irrational or rational, but the fact itself is inspected, namely that the penitent is in some way burdened; for the aforesaid burden is whatever could happen to the penitent that is not only harmful, but also troublesome or unwelcome, whether by right or by injury. Now it is clear that the revalidation of the marriage was altogether burdensome in the case for the penitent. Then the inconveniences of this revalidation, with each spouse ignorant of it, are clear; for if Titius, making confession with another confessor, comes to knowledge of the impediment, he will in reality be able to withdraw from the marriage, judging it null; which, if the circumstances have changed, and if there is no scandal and no damage to a third party, he could also licitly do.

2. "Doubt 2. Paulus, a Christian widower, took Balbina, an infidel, as wife, who desires to be enrolled in the number of Christians, so that she may contract marriage with him in the Christian manner. Meanwhile Demetrius, the son of Paulus, born from the former wife, declares that he has had relations with Balbina. It is asked whether, through copula of this sort with an infidel woman, there results an impediment of affinity in the first degree.

"Doubt 4. A faithful man took in marriage an infidel woman, whose blood-relative in the second degree, also an infidel, he had known previously. It is asked whether, after his wife has embraced the Christian faith, she needs a dispensation upon the second degree of affinity, so that she may be able to contract with him sacramentally.

"R. To the 2nd. Two things are to be distinguished: 1. whether Paulus took Balbina, an infidel, as wife with a previous apostolic dispensation upon disparity of cult, or without an apostolic dispensation; 2. whether Demetrius had relations with Balbina before Paulus took her to himself as wife, or afterward. If Paulus took Balbina with a previous apostolic dispensation, even if the copula of Demetrius with the same Balbina had preceded, the marriage must now be held as valid; since the impediment of affinity, especially from illicit copula, as in the case, since it is not held as of divine or natural law, but only of ecclesiastical law, does not affect infidels according to the mind of the Church, because they are not subjects of the Church; and the Church, by dispensing with the Catholic party upon disparity of cult, so that he may contract with an infidel, is understood also to dispense from those impediments from which the infidel party is exempt, so that, on account of the indivisibility of the contract, this exemption remains communicated also to the other party. Hence it follows that a marriage of this sort cannot be repeated after Balbina's conversion to the faith. For, once valid, it always perseveres in its validity; nor would it be weakened by subsequent copula which Demetrius might have had with Balbina, because the conjugal bond, which is indissoluble, would not thereby be dissolved. Therefore in this first case let missionaries take heed not to admit spouses of this sort, asking to contract in the Christian manner, to a new furnishing of consent; indeed let them warn them of the validity of the preceding marriage, so that they may know that through the sacred ceremonies of the nuptial blessing they are not entering a new marriage, but only sanctifying what they have already entered and what stands firm.

"But the contrary must be said in the second case, namely if Paulus contracted with Balbina without an apostolic dispensation upon disparity of cult. For then, since the marriage was null and void and as if it had not been contracted, Balbina herself, after baptism, would be bound by the impediment of affinity. Nor does it matter that Balbina, when she was carnally known by Demetrius, was still remaining in infidelity, and for that reason was not subject to an ecclesiastical impediment. For affinity in itself and regarded physically must be distinguished from the impediment of affinity. Now affinity is contracted even by infidels, because even among infidels it is true that man and woman are made one flesh through carnal copula. Therefore, as is had in cap. Fraternitas, 35, quaest. 10: 'If they shall have been one flesh, how will some relative of them be able to pertain to the one, unless he pertains to the other?' Therefore, because Paulus the father pertains to Demetrius the son, he must be said also to pertain to Balbina; and Balbina, because she has been made one flesh with Demetrius, must pertain to Paulus. The only difference is that affinity does not produce an ecclesiastical impediment for infidels, but it does produce one for the faithful. Therefore, since through baptism her affinity, already physically contracted with Paulus, is not removed from Balbina, this same affinity, radically inhering in her, which for that same infidel was not an impediment to contracting, becomes an impediment after baptism, by which she becomes subject to the Church, and consequently subject to its laws; and indeed an impediment in the first degree, and in the direct line, because Paulus the father and Demetrius the son touch one another in such a degree and line, and the degrees of affinity are taken from the degrees of consanguinity.

"To the 4th. From those things which were said in response to the 2nd doubt, the response to the 4th is clear. For in each case there is question of the impediment of affinity from illicit copula, except that there the discussion was of the somewhat passive affinity of Paulus the faithful, which namely he had contracted with Balbina, not from his own act, but from the act of another, namely Demetrius; but here there is question of active affinity, of which namely the Catholic man himself is the author, who wishes to contract with a woman whose blood-relative in the second degree he carnally knew. Therefore all the more must it be said that the impediment results on the part of the man, and indeed in the second degree, because consanguinity and affinity proceed and are computed in the same degree, and that the woman too is similarly held by the same impediment when she has embraced the Catholic faith. Therefore, if an apostolic dispensation upon disparity of cult preceded the marriage contracted by the faithful man with the infidel woman, it must be held as valid, and therefore, after the baptism of the woman, it must not be repeated by a furnishing of new consent; but if it was entered without a dispensation of this sort, because then it would have been null and void, the impediment of pre-existing affinity would affect, after the reception of baptism, the woman also, so that she too would need a dispensation for contracting validly and sacramentally." S. O., Sept. 16, 1824; Enchir. Moral. 1002; I. M. 1002.