Case XIII: The Dispensation from the Impediment of Consanguinity

Two first cousins desire to be married. The reason they advance for so desiring is that a child has already been born to them. Through their pastor they apply to the Holy See for a dispensation super impedimento consanguinitatis in secundo gradu aequali. But before the arrival of the dispensation, the man changes his mind about marrying his cousin, and marries another girl. After some time his wife dies, and he now desires again to marry his cousin. The dispensation that he sought from the Holy See in the first instance is now over a year old. Is it still available?

Answer.—The dispensation is available or holds good still, whether the pastor has fulminated it already or not. In case the dispensation has never been fulminated, it may be fulminated now. In case it has already been fulminated, the parties in whose favor it was granted may still make use of it. The reason that the dispensation is still good, although over a year has elapsed since it was granted, and although the parties made no use of it when it was granted, is that nothing has happened since the dispensation was granted which would invalidate it. This dispensation is known in Canon Law as a rescript non tantum gratiae faciendae, sed gratiae factae. There exists this distinction between a gratia facienda and a gratia facta, that the former expires with the death of the superior granting it, if the case has not yet been opened, or, as they say in the law, re adhuc integra; while a gratia facta takes effect as soon as it is granted and the papers signed and sealed, and is not extinguished by the death of the grantor. If this papal dispensation, granting these two first cousins permission to marry were a rescriptum gratiae faciendae, it would become invalid if the Pope died before it was fulminated. But, as it is considered a rescriptum gratiae factae, it would still be good even though in the meantime the Pope had died. Besides the death of the Pope, however, there are other causes that may invalidate papal rescripts, even rescripts containing favors. Such causes are:

( 1 ) If the motive for granting the favor or dispensation ceases;

(2) The implied or expressed revocation of the rescript by the one granting it;

(3) The implicit or explicit renunciation of the favor by those to whom it was granted.

Now, in the case here submitted, none of these causes are verified and, therefore, the rescript is still valid. The motive for granting the dispensation was the existence of a child, born to these first cousins outside of wedlock. But that reason still holds good. The child is still living. There is no question of the Holy See having revoked the dispensation, since such a revocation is not presumed in law, but must be proved. Nor can it be presumed that the recipients of the dispensation have renounced their claims to it. That the man did not use it, when it was first granted, but married someone else, is not an implied renunciation of the dispensation. St. Alfonsus treats the question: "When is a tacit renunciation of a dispensation understood to have been made? Some say when the person dispensed does not use it for ten years, although able to do so, as Martin says. Others, such as Sanchez and Bordon, say when the person dispensed performs a contrary act—for example, if, after obtaining a dispensation to contract marriage with one woman, he then seeks to contract with another. But the Salmanticenses, with Suarez and Tapia, say that it must be held that by those signs a renunciation is in no way judged to have been made. Hence they say that one dispensed to contract marriage with one woman may rightly use that dispensation even after he has contracted with another who has died; or after he has emitted a vow of chastity, provided that a dispensation from the vow is afterward obtained." L. 1, 198.;

But suppose the child dies before these two cousins get married, may they still use the dispensation? If the child dies before the rescript is fulminated, then they cannot use it, as it becomes invalid. The pastor, in this case, is delegated by the Holy See to execute the dispensation. He cannot, however, validly execute the dispensation, except on the condition, which is either expressed in the rescript or at least understood, namely: si preces veritate nitantur. By this formula it is required that the motive for which the dispensation was granted still exist. This motive, in the present case, was the existence of the child, which was the sole reason urged why the dispensation should be granted. Now, if this reason no longer exists, the only reason for the dispensation disappears, and as it has not been executed, it becomes invalid. But if the child died only after the dispensation was executed or fulminated, then the cousins may still use it, because as soon as it is executed, it removes the impediment of consanguinity and enables the cousins to marry, and the impediment once removed, does not revive according to the rule of Canon Law: Factum legitime retractari non debet, licet casus veniat in quo non potuit inchoari. Reg. 73, in sexto. Therefore, this dispensation, being fulminatéd, has already produced its effect and cannot be retracted by a supervening fact, nor can the impediment of consanguinity, once removed, be revived.