155. Dispensation of Impediments

1. The faculty is customarily granted by the Holy See of dispensing in the third and fourth degrees of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth mixed degrees, but not in the second degree alone as regards future marriages; but as regards past marriages, even in the second degree alone, provided that it in no way touches the first degree, with those who are converted from heresy or infidelity to the Catholic faith; and, in the aforesaid cases, of declaring legitimate the offspring received. It is asked: 1.º "Whether this faculty of dispensing in the degrees of affinity includes affinity contracted illicitly or not. And if the response be affirmative, how it can be dispensed by the said missionaries, if it always touches the first degree; and: whether this faculty of dispensing in the degrees of consanguinity and affinity is understood also for Catholics, since the privilege says: with those who are converted from heresy or infidelity to the Catholic faith?

R. As regards the first doubt, in which it is asked whether the faculty of dispensing in the degrees of affinity includes affinity contracted illicitly or not, the answer must be: Affirmatively. But in the remaining matters the answer must be: Negatively." S. O., Oct. 19, 1712, Collect. S. C. de P. F. n. 1229.

However, the following other Decision is had, which is later: "It must be answered, by way of instruction to Monsignor the Archbishop of Corfu, that by virtue of the words: of dispensing in the third and fourth degree of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth mixed degrees, but not in the second degree alone as regards future marriages, he can dispense with all his diocesans. But as to the other part of the said § 6, contained in these words: but as regards past marriages, that is, marriages, even in the second degree alone, provided that it in no way touches the first degree, the aforesaid Monsignor Archbishop can dispense only with those who are converted from heresy or infidelity to the Catholic faith; warning also the above-named Monsignor Archbishop that in practice schism is joined to heresy." S. O., Mar. 13, 1736, Collect. cit. n. 1231; Comp. Priv. Soc. Iesu n. 390.

2.º Concerning the faculty of dispensing in the second degree with converted heretics, it is asked: Whether this is permitted in the case in which one party of the contracting parties is such, and presses for the favor, or whether both must be converted?

R. Either the matter is of two heretics, of whom only one has been converted to the Catholic faith, the other remaining in the state of heresy; or of two persons, of whom only one is a heretic, while the other is a born Catholic. In the first case it is required that both be converted to the Catholic faith; but in the second it is enough that one only be converted." S. O., Sept. 26, 1709, Collect. cit. 1228.

Yet there is also another Decision as regards the aforesaid faculty, of the following tenor: "By past marriages... are understood not just any unions whatever, even fornicarious ones, but only those which, according to the customs of the regions either of infidels or of heretics, have the form and figure of marriage and are held as legitimate marriages, which nevertheless are void. And there are understood marriages: 1.º of the faithful with infidels, entered without apostolic dispensation on disparity of cult; 2.º of Catholics with heretics; 3.º of heretics with infidels, or among themselves... when namely in the first and second case the other party is converted to the Catholic faith, and in the third case whether one party only or both parties are converted to the faith." S. O., Sept. 16, 1824, Collect. cit. n. 1235, 1463.

Moreover by the same faculty power is given also as regards marriages contracted invalidly after the conversion of one party on account of the aforesaid impediments; and as regards mixed marriages formerly contracted invalidly, although the heretical party is now converted. Besides, a faculty is given of dispensing with a converted infidel who before conversion contracted with a baptized non-Catholic party in the aforesaid degrees. But as regards that particle and, whether it is to be understood copulatively or disjunctively? "The words of the Formula are to be taken thus: that the granted faculty is understood as a faculty of dispensing both from the impediment of consanguinity and from the impediment of affinity, but separately; not, however, when both impediments concur in one and the same case." S. O., July 2, 1884, Collect. S. C. de P. F. n. 1245. Cf. Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31; Comp. Priv. Soc. I. n. 390.

2. "The petition having been reported, sent by the S. C. de P. F. to the Holy Office, of the capitular vicars of the diocese of Tuam in Ireland, who proposed the doubt whether, since they have the faculty of dispensing in the third degree, they can use it in favor of those who had already contracted marriage knowingly within the prohibited degrees and in fraud of the law, against the express prohibition of the Council of Trent, or whether a new particular dispensation of this Holy Office is required; the Eminent Lords decreed: That it should be rescribed that in the Formula of faculties a distinction is made between the faculty of dispensing from impediments for marriages to be contracted and for marriages contracted, which is restricted to those converted from heresy; and that for marriages contracted knowingly with an impediment, a special faculty is required." S. O., Dec. 22, 1723, Collect. cit. n. 1230.

Here also another much more recent Decision is had: "Whether the faculties of the Formularies, by which power is given of dispensing in matrimonial impediments, are valid also when there is question of a marriage contracted nullly, both parties, while it was being contracted, being conscious of the nullity?...

R. The faculties in question are valid also when both parties are conscious of the nullity of the marriage already entered." S. O., July 2, 1884, Collect. S. C. de P. F. n. 2187; Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 6.-9.º; Compend. Privil. Soc. Iesu n. 390.

3. With what extension is the aforesaid faculty of dispensing in consanguinity and affinity to be understood?

R. 1.º An indult of relaxing the impediment of affinity, granted without limitation, extends to relaxing both that which arises from licit intercourse and that which arises from illicit intercourse.

2.º An indult of relaxing the impediment of affinity from conjugal intercourse extends also to the impediment of public honesty, which is necessarily connected with it.

3.º A faculty delegated generally of dispensing as regards some degree of consanguinity or affinity extends to the same degree duplicated or multiplied, proceeding from both parents. S. Poenit., Apr. 20, 1883, Collect. cit. n. 1244.

4.º The word simple and mixed, as regards a degree of consanguinity or affinity, simple or mixed, can be understood in three ways. 1.º Simple excludes only the mixture of unequal degrees on either side; mixed, on the contrary, includes inequality of degrees on either side. 2.º That is called simple which excludes the multiplication of consanguinity or affinity; mixed, on the contrary, that which includes it. 3.º That is called simple which excludes another impediment diverse in species; mixed, that which includes it, e.g., consanguinity mixed with affinity, with spiritual relationship, etc.

Now in the preceding faculty the word simple and mixed degree is understood, in the first sense, of inequality of degrees; and thus those words, mixed degree, understood in that way, comprehend not the same degree mixed with some nearer one, unless this is said in express words, but with some more remote one only. Hence the faculty of dispensing in the third degree simple and mixed does not confer the power of dispensing in the third degree when, for example, on the part of one of the contracting parties it reaches the second, but only when either both contracting parties touch each other in the third degree, or one is distant from the common stock in the third degree and the other in the fourth. Likewise that word, simple and mixed degree, is understood also in the other sense, concerning multiple consanguinity and affinity.

Wherefore the Holy Office, June 15, 1875, declared that Ordinaries "who enjoy the faculty of dispensing in the third and fourth degree of consanguinity and affinity, simple and mixed only, and in the second, third, and fourth, but not in the second alone as regards future marriages, can dispense in the third and third, in the fourth and fourth, in the third mixed with the fourth, and also in the third and fourth mixed with the second, whether the degree arises from one stock or from multiple stock." Collectan. cit. n. 1243.

4. "Whether it is lawful for vicars apostolic in England to use the faculty of restoring the right of asking the conjugal debt when it has been lost from some cause, if the other party was heretical?

R. The vicar apostolic, by virtue of the faculties which have been granted to him by the Holy See under Form 2, n. 8, namely, of dispensing upon the impediment of crime, neither of the spouses however plotting, and of restoring the right of asking the debt when lost, can restore to the right of asking the debt the Catholic spouse who has validly married with a heretic." S. C. de P. F., July 19, 1782, Collect. cit. n. 1564; Collect. oper. apost. ad usum Soc. miss. ad ext. n. 31. 8.º; Compend. Privileg. Soc. Iesu n. 390.

5. "It often happens that confessors ask from the petitioner (the Vicar Apostolic) the faculty of dispensing concerning restoring the right of asking the debt when lost; but he does not know how he is to connect the final member of the faculty, and of restoring the right of asking the debt when lost, with the clause sounding thus: and in the dispensation the tenor of such faculties is to be inserted with expression of the time for which they have been granted, since nothing is given in writing.

R. Let the dispensation be given orally, provided that the faculties have not expired in the one dispensing." S. O., Dec. 3, 1765, Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 8.º 10.º; Compend. Priv. Soc. Iesu n. 390.

6. "Whether the faculty of dispensing in the impediment of spiritual relationship, besides between the one lifting and the one lifted, is to be understood of spiritual relationship arising from baptism only, or also of the same relationship arising from confirmation?

R. To arise (sic) both from baptism and from confirmation." S. O., July 2, 1884, Collect. S. C. de P. F. n. 1252. Cf. Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 9.º; Compend. Privileg. Soc. Iesu n. 390.

7. Anastasia, after obtaining from Mauritius a promise of marriage to be entered in the Church as soon as possible, enters a civil marriage with him. After this has been entered, Mauritius delays the fulfillment of the promise made; and when he already seemed determined to contract marriage in the Church, he has a dispute with the parish priest on account of some contract to be drawn up, so that, angered, Mauritius no longer wishes to go to the Church, nor to see the face of any priest any more. Prudently and cautiously, by exhortation, sorrow, and other efforts, Anastasia tries to bend Mauritius and bring him back to Christian sentiments, but all things fall in vain. Wherefore, several years having now passed in this unhappy state, and since they are now living in another region, Anastasia asks from the confessor that he himself be willing to bring a remedy to so great an evil by seeking a dispensation from the Holy See, yet without the husband noticing; for there is danger that, if he knows the matter, he will recede from the marriage and leave her with the children, not without grave scandal, since all in that place think them joined in legitimate marriage.

It is asked: What to the Case?

R. In the Case no dispensation can be applied except one in radice. But this, although rarely, and only when a very grave urgent cause is present, is granted even in the case of a civil marriage. The difficulty in such a case of civil marriage is only on the part of consent, namely whether the party who does not consent to an ecclesiastical marriage truly consents to marriage, and not rather to mere concubinage. Speaking absolutely, there is no doubt that in such a civil marriage sufficient consent can be present, so that afterward, with the Pontifical Dispensation acceding, it can be a true marriage. For since for marriage in itself nothing else is required except natural consent to an indissoluble union ordered to the proper end of marriage, the procreation of offspring, consent of this sort can well have place in a civil marriage, which cannot be a true marriage only on account of the extrinsic impediment of clandestinity. Therefore, this having been removed through dispensation, a true marriage arises. If therefore it is established that there is true consent to marriage, and a just and proportionate cause is present, the dispensation in radice can indeed be sought. Now, in the Case, as it seems, since no scandal is to be feared if the dispensation is granted, since one party refuses to renew consent, or at least there is grave danger that he may not again consent to marriage, since the defect of clandestinity and the civil marriage only entered are hidden, and since a cause truly and very grave is not lacking, it seems that the confessor can seek the aforesaid dispensation, explaining all the circumstances of the case and first obtaining the recommendation from the Ordinary. S. Poenit., Aug. 12, 1882, Zitelli, de Dispens. matr., pag. 105; I. M. 1050.