Case XII: A Case of the Impediment of Consanguinity

Titius and Bertha desire to contract a valid marriage, and to this end they consult their parish priest. Now the parish priest is aware of a persistent rumor to the effect that Titius and Bertha are related to one another “primo gradu lineae collateralis”: in other words, that they are brother and sister. He refuses to marry them until he shall have first investigated this rumor and discovered the ground on which it rests. Upon investigation, he finds that the grounds for the suspected relationship are the following:

1. Public report: all the people of the neighborhood believe that Titius and Bertha are brother and sister.

2. Bertha’s mother, in bringing suit against Sempronius for the support of Bertha, swore that Bertha was his child, although Bertha’s mother was not married to Sempronius.

3. Sempronius, on his death bed, acknowledged that Bertha was his child, and desired that it be so entered on the baptismal record.

Sempronius married Anna, another woman, who bore him Titius, who now desires to marry Bertha. After the death of Anna, Titius’ mother, Sempronius, his father, married Bertha’s mother.

The parish priest, discovering this to be the case, thought that the grounds for suspecting that Titius and Bertha might be brother and sister were sufficient to justify him forbidding them to marry. Accordingly, he refused to marry them, and forbade them, under pain of having their marriage annulled, to attempt to get married. But this did not deter the young couple from endeavoring to carry out their purpose of getting married. The whole case was, therefore, brought before the bishop. Now Bertha’s mother appears before the bishop’s court and makes affidavit that Sempronius was not Bertha’s father: that when she stated ‘that he was, she had simply lied, in order to keep Sempronius from marrying another woman, and to get support from him for her child. That if Sempronius declared on his death bed that Bertha was his child, he did so at her most urgent prayer in order to remove the stigma from her, who was then his lawful wife, and from her daughter: but that there was no truth whatever in Sempronius’ statement.

In the meantime, however, Titius and Bertha are living together as husband and wife and have children. Bertha’s mother is nearing death and desires very much that Titius and Bertha should be married validly and licitly in the church before her death. In this extremity the whole situation is laid before the Holy See, with the prayer that the Holy See would deign to determine authoritatively whether there were sufficient ground for suspecting the alleged relationship between Titius and Bertha, and therefore forbidding their marriage by the Church, or whether the grounds for the suspected relationship were insufficient in Canon Law, and that Titius and Bertha might be married by a priest.

To this prayer of Titius and Bertha the Congregation of the Inquisition, or the Holy Office, on April 6, 1906, returned the following answer: “After examining all the law and the facts in the case, the non-existence of the impediment of blood relationship is not sufficiently established, and, therefore, the marriage of the petitioners can not be allowed.” This reply or decision of the Holy Office was approved by the Supreme Pontiff.

There is question here of a doubtful impediment, impedimentum dirimens dubium. A doubtful impediment is one whose existence or non-existence can not be established by a thorough investigation. The impediment may be doubtful, either because the interpretation of the law which creates the impediment, is doubtful and hence it becomes doubtful whether any such impediment exists in law. This is the dubium juris. Or it may be that the law and its interpretation are quite clear, and the doubt may be about the facts in a particular case, whether the facts are such as to warrant the application of the law or not. This is the dubium facti.

When the doubt concerns the existence of a law creating an impediment or its interpretation and application and the law be of ecclesiastical origin, then it is always lawful to contract a marriage, where such a doubtful impediment exists, because the Church supplies the defect, as Canonists say, and there is no danger of contracting an invalid marriage. This is the uniform practice in the Church, and the Church, cognizant of it, has never condemned it: therefore, constructively, the Church sanctions the practice.

But if the doubt concern the existence of a divine law creating an impediment, as, for instance, whether the divine law forbids a brother and sister to marry, or if the doubt concern the facts in the case, as, for instance, whether Titius and Bertha are really brother and sister, it is not lawful to contract marriage in such a case, because either the Church can not remove the impediment, if it be of divine law, or if the doubt concern the facts in the case, the Church does not wish to supply the defect, or rather positively refuses to supply it. Because the Church has held such marriages invalid, when, after they were contracted, it was fully established that an impediment did really exist. The reason why the Church does not permit marriages in cases where a doubtful diriment impediment exists, is that, generally speaking, an investigation will settle the doubt as to the existence or non-existence of the impediment. If, in any particular case, the investigation does not remove the doubt, then a dispensation is required, ad cautelam, because the Church requires that the Sacraments be administered validly. If, however, the impediment be of the kind that the Church never dispenses, as in the case of Titius and Bertha, then the Church forbids the marriage, and does not grant a dispensation ad cautelam.

‘Whether the law forbidding a brother and sister to marry be a law of nature, or only a law of the Church, theologians are not agreed. But in this they are agreed, that if the law be only of ecclesiastical origin—juris ecclesiastici—it is one of the impediments that the Church never has and never will dispense. For all practical purposes, therefore, it is immaterial what may be the origin and nature of the impediment. In the case of Titius and Bertha the existence of the impediment is not altogether certain; but still it is sufficiently probable to render the marriage of Titius and Bertha a doubtful marriage, if the Church were to permit them to marry.

In the case of other diriment impediments juris ecclesiastici, the Church validates the marriage, by supplying the defect, or removing the impediment. But in the case of doubtful relationship in the first degree, lineae transversalis, the Church never supplies the defect, by removing the impediment, if it really exists, even though she may, according to some theologians, have power to remove it.

It can readily be seen what grave inconveniences would sometimes ensue if the Church followed any other course. Suppose the Church allowed Titius and Bertha to marry. It would be very scandalous, since all doubt as to their relationship has not been removed. Suppose, after their marriage, incontrovertible proof is produced that they are brother and sister. They will have to separate. The hardship of separating will be greater than the hardship of originally abandoning the marriage. Infinitely more so. ‘And the scandal given and the harm done to religion!