Case XXXI: Dispensation from a Prohibitory Impediment Arising from Betrothal

Applied correction from Woywod's opening insert: CASE XXXI, if placed after 19 April, 1908, the engagement contract would have to be in writing signed by the parties and two witnesses or by a pastor, otherwise the Church attaches no binding force to it, neither in conscience nor in the public forum.

John contracts valid espousals with Mary, but afterward falls in love with Martha, and, without any just cause, deserts Mary. When he goes to the parish priest to get married to Martha, Mary puts in her claim, and the priest sustains her right. Then John and Martha go before a magistrate and contract civil marriage, which, where the Tridentine decree is published, is no marriage at all.

After some time, when they have two children, they wish to become reconciled with the Church, and also to legitimatize the children; so they ask the parish priest to try to persuade Mary to give upher right, but the attempt is vain. The worried pastor is telling his troubles to a neighbor, and is surprised to hear that the matter can be fixed by a dispensation from the Sovereign Pontiff. He doubts whether the Roman Pontiff can give a dispensation hurtful to the interests of a third party, so he submits the following questions to a theologian:

1. Whether and for what cause can the Roman Pontiff dispense from an impedimentum impediens arising from valid betrothal?

2. Whether in the present case there is sufficient ground for a dispensation?

3. Whether Mary should have given up her right?

4. Whether, supposing a dispensation granted, John has still any obligations to Mary?

I. Since it is a question of the Roman Pontiff in his public capacity, we can infer from fact to right. Now the Roman Pontiff does dispense in such cases. Therefore, he has the right.

Moreover, "cui licet quod est plus, licet utique quod est minus" Now the Pope can dispense in the case of a marriage ratum non consummatum. Therefore, a fortiori, he can dispense from these lesser impediments.

It is true that in betrothal there is a right acquired by the other party, and the difficulty is: How can the judge, as defender of the law, act prejudicially to the rights of this other party? It must be remembered, however, that the Pope is Chief Legislator as well as Chief Judge. As Chief Judge, he must urge the observance of the law. But as Chief Legislator, he can undoubtedly dispense from the law he has made; for the law-maker can dispense from the law.

However, he can not do so arbitrarily and without cause. The gloss in can. I. dist. 22 in Decret. v. injustitiam says, “nor ought the Pope take away from one in order to give to another unless a cause underlies it.” It therefore requires a grave and just cause for the Pope, although he is Chief Legislator, to use this power. The question now is whether such cause exists.

II. There is no doubt that John did Mary a serious wrong when he deserted her, and committed a grave sin. But should he be compelled to leave Martha and her two children and marry Mary? No one can sincerely propose such a solution. Suppose that after he contracts Christian marriage with Mary, the civil power were to intervene and order him to restore Martha to conjugal rights. It is evident that there are quite sufficient causes for granting the dispensation. And as a matter of fact, in our own times the Pope has granted dispensations of this sort.

III. Mary ought to give up her claim, not by the strict rigor of justice, but from charity. She could properly urge her claim until the man went through the civil contract, but afterward, considering his obligation before the civil law, and the birth of his children, and desire of the parents to be reconciled with the Church, she ought to make things smooth by giving up her right. She owes it to herself as well as to them, for even if she married the man before the Church, the other woman would have a claim on him in the eyes of the civil law.

IV. Even if a dispensation is granted, the rejected girl still has certain claims: 1. He must restore any presents he has of her, though she is not bound to send back his gifts. 2. He must make compensation for any evils which she may have sustained by his breaking the engagement.

It is a disputed question whether the engagement holds if Martha dies before the others. Some hold that the betrothal remains in suspense, and binds once more if the wife dies; others that it becomes altogether extinct. Arguments are drawn by both sides from the texts of the law, which does not seem to be clear on the question. But since there is no word of such an obligation in the rescript of the dispensations, it seems to be the mind of the legislator that by the dispensation the original obligation becomes extinct. In practice, if such a case should arise, it would be necessary to bring it to an ecclesiastical judge.