Case XXXVI: Case of a Marriage Rendered Invalid by Failure to Apply for a Dispensation at the Proper Time

A week before her marriage with Titius, Bertha made a general confession in a monastic church. Her confessor discovered an impedimentum dirimens, viz., affinitas ex copula illicita cum sponsi consanguineo in secundo gradu. He pointed out this impediment to her marriage, and invited her to come to him again before it took place, in order that he might obtain authority to give her a dispensation. Bertha promised to come, but did not keep her word, and her confessor, Justinus, did not see her again until a fortnight after her wedding, when she apologized for not having come on the appointed day, because she had been prevented from doing so, and thought she could come later to receive her dispensation. Justinus was doubtful whether he could still make use of the authority asked and received three weeks before, but, having made up his mind, he told her that the dispensation was not valid, and, as her marriage was therefore null and void, he forbade her to live as a wife with her husband, until a fresh dispensation had been obtained and given to her.

The question arises: (1) Was Justinus right in declaring the first dispensation to be null and void? (2) Was he justified in forbidding Bertha to live with her husband?

Answer to (1).—The dispensation was given in forma commissoria, not in forma gratiosa, and the former removes the impediment only if it is given by the Commissarius to the person concerned.

The impedimentum dirimens existed therefore at the time when Bertha went through the form of marriage, and rendered it invalid. Justinus had authority to grant a dispensation from the impediment before the marriage; did he possess the same power after it had been solemnized? He concluded that he did not possess it, and we believe him to be right. The ordinary had authorized him to dispense in ordine ad matrimonium contrahendum; but matrimonio contracto the dispensation obtained by Justinus stands on a level with a dispensatio subreptitia. According to Laymann (Theol. mor., lib. I. tract. IV. cap. xxii. n. 19) rescripts of favor are judged surreptitious whenever they were obtained through silence about a truth intrinsically pertinent to the matter in itself, if the superior, had the truth been expressed and understood, probably would not have granted the dispensation or favor, or certainly would not have granted it in that form and manner, but with an added condition and burden. The dispensatio super impedimentum affinitatis is essentially different matrimonio contracto from what it is ad matrimonium contrahendum. The Council of Trent (sess. 24 de reform. matr., cap 5) gave the following decision on this subject: If anyone knowingly presumes to contract marriage within the prohibited degrees, let him be separated and deprived of hope of obtaining a dispensation. And this should apply much more to one who dared not only to contract but also to consummate the marriage. But if he did it in ignorance, and if he neglected the required solemnities in contracting marriage, let him be subjected to the same penalties. For he is not worthy readily to experience the kindness of the Church, whose salutary precepts he rashly despised. But if, after the solemnities have been employed, some impediment is afterward discovered to exist of which he had probable ignorance, then he can more readily and gratuitously be dispensed.

To obtain a dispensation from the tmpedimentum affinitatis is therefore much more difficult after the marriage, though invalid, has taken place than before. It is not granted in the same form or under the same conditions, and the things required of the persons dispensed are different. Therefore to regard a dispensation, granted in ordine ad matrimonium contrahendum, as applicable to a marriage that took place before the dispensation was granted, is a mistake; such a dispensation is equivalent to a dispensatio subreptitia, and, like it, has no force. If a dispensation is sought after a marriage has been invalidly concluded, and no mention is made of the fact that the marriage has already taken place, the dispensation, if granted, is invalid. The authority given to Justinus to grant a dispensation to his penitent, so that the marriage might take place, became invalid as soon as Bertha went through the marriage ceremony in spite of the diriment impediment.

In the instructions issued by the S. Congregation de Propag. Fide, May 9, 1877, a list is given of things that must be stated when application is made for a dispensation, "so that, even if the truth is concealed or a falsehood is related through ignorance, the dispensation is rendered null"; and amongst these things in no. 6 mention is made of "the various circumstances, namely, whether the marriage is to be contracted or has been contracted; if already contracted, it must be disclosed whether in good faith at least on the part of one party, or with knowledge of the impediment; if in bad faith, at least of one party, or with knowledge of the impediment."

Since, then, the dispensation is invalid, if, in the request for it, the fact that the marriage has already taken place is not mentioned, it follows a pari that a dispensation, granted in ordine ad matrimonium contrahendum, loses all value as soon as the marriage takes place in spite of the diriment impediment, which still exists, because the persons concerned have not received the dispensation.

It is not necessary to state whether the marriage between Bertha and Titius has been consummated since Leo XIII promulgated the new regulation on June 25, 1885.

Answer to (2).—Justinus forbade his penitent, whose marriage was invalid, to live with her husband until the dispensation was procured and given to her. This was certainly the proper course for them to follow, if any excuse could be found for their separating temporarily. But it would very seldom happen that such a pretext could be found, especially in the case where the woman was the person affected. She would naturally return to her husband after making her confession, and would continue to live with him. To forbid her all conjugal intercourse with him might have most disastrous results. What ought a confessor to do under such circumstances?

Let us consider a somewhat similar case. If the man and woman are already in a church, and if everything connected with their marriage is prepared, so that their union cannot well be put off, St. Alphonsus (lib. VI. n. 613) considers that the priest may proceed with the ceremony, even though at that moment he discovers a diriment impediment. "But if the most grave danger of disgrace or scandal could be avoided in no other way, the pastor or another confessor could declare that the law of the impediment does not bind in that case, because a law ceases when it is harmful rather than useful. And although here the purpose of the law does not cease in general but only in the particular case, nevertheless, since the purpose of the law ceases in the contrary direction, the law also ceases, as all agree." (Cf. Salm. de Leg., c. 4, n. 6.)

If the law is not to be regarded as binding in the case mentioned by St. Alphonsus, it was, a fortiori, not binding in this case, in which the difficulties, the gravissimum periculum infamiae aut scandali, were still greater. We think, therefore, that Justinus ought to have required Bertha at once in the confessional to renew her consensus in matrimonium cum Titio, unless she was in a position to make some excuse for leaving her husband for a few days, to pay a visit to a friend, or something of the sort. She was probabiliter capable then of giving a valid consent to her marriage, probabiliter therefore on her part her marriage was duly concluded when the consent was renewed, and there is no need therefore to trouble her with regard to the debitum. If she were to question Justinus further on this point, he would have to say that she and her husband might thenceforth live as man and wife, but in all probability she would not ask anything of the kind, as ignorant people, of the class to which Bertha apparently belongs, do not regard conjugal intercourse, in such a case, as fornicatio. Justinus ought to have told her to come to confession again very soon. St. Alphonsus goes on to say (l. c.): "The authors nevertheless note that as soon as possible—at least for greater security and to preserve the reverence due to the laws of the Church—recourse must be had to the Sacred Penitentiary, so that a dispensation may be obtained from it." Justinus should therefore at once apply to the S. Poenitentiaria, explaining all the circumstances and asking for a dispensation. After it is granted to Bertha, she must once more conditionally renew her consensus, as probabiliter the marriage can only now be concluded. Titius may be assumed to abide by his previously given consent, and as, in such a case, it would hardly be possible to tell him that his marriage was invalid, and to ask him to make a renovatio consensus, it is enough to secure the validity of the marriage if Bertha renews her consent, and Titius abides by his own, renewing it implicitly by proofs of conjugal love, many of which are enumerated by theologians.

It appears, from the form in which the dispensation is generally granted, that an agreement of this kind is not expedient if very great difficulties would arrive in case the innocent party became aware of the impediment to the marriage. As a safeguard the following clause is added to the dispensation: but if this notification cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors. Justinus would adopt the best and safest course if he aimed at sanatio in radice; as Bertha knows of the impediment to her marriage, she must renew her consent at the sanatio in radice; for in this case, as Lehmkuhl points out, it is not a perfect radical sanation, but only the consent of the other, ignorant spouse is healed at its root (P. II. n. 831; cf. n. 825 sqq.).— Dr. Huppert.