Article III. On Dispensation from the Banns

739. Principles. - I. For a just cause, dispensation can be made from the law of the banns. - Council of Trent, session 24, chapter 1, On the Reformation of Matrimony. Dispensation is more easily made from one or another proclamation than from all.

II. Dispensation from the banns pertains to the Ordinary, or to the Bishop. This is likewise derived from the Council of Trent (l.c.), where the faculty of dispensing is said to be left to the prudence and judgment of the Ordinary.

III. The legitimate causes ¹ of dispensation are: first, lest a matrimony be maliciously impeded; second, grave harm, infamy, or scandal imminent from the delay of matrimony; third, fear lest the man abandon the girl whom he has violated; fourth, if, after matrimony has already been contracted civilly, the bridegroom is unwilling to consent to the three proclamations; and other similar causes. - St. Ligorius, no. 1005.

¹ St. Alphonsus (book 6, no. 1006) rightly distinguishes causes because of which a dispensation not only can but also must be given, and causes because of which dispensation can be made although the Superior is not bound to dispense. To the first class of causes are referred the heads enumerated by the Author; to these add the case in which an impediment is discovered after the matrimony has already been celebrated and therefore the matrimony itself must be convalidated through a renewal of consent. Some add the case in which the betrothed persons would be exposed through the denunciations to the shame and mockery of men; this generally occurs when they are very old, or when an old man is to be joined with a young woman, or a noble with a commoner, etc.; for a certain irreverence is done to the Sacrament when the contracting parties are mocked. See Sanchez (book 3, disputation 9) and Schmalzgrueber (book 4, title 3, from no. 33). But dispensation can be made from mere favor when the marriages of princes or magnates are treated, and generally when, with no suspicion of an impediment, all the inconveniences for avoiding which the denunciations are made are absent. See Schmalzgrueber (l.c., no. 35), who observes (ibid., no. 40) that extrajudicial knowledge suffices for dispensing, with the order of law omitted; the reason is that the Synod leaves the whole matter to the judgment and conscience of the Ordinary.

740. Questions. - QUESTION 1. When the betrothed persons are from different dioceses, must a dispensation be obtained from each Bishop?

Reply. Yes, as it appears. The reason is that there is no connection between the dispensation of the one and the dispensation of the other. Moreover, only the Ordinary of the place can know the cause of dispensation; for there can be reasons for dispensing for one party without their being present for the other, and if impediments are not detected on one side, it does not follow that they cannot be detected on the other.

QUESTION 2. Is a dispensation from the banns required for joining concubinarians already civilly united if one of them is at the point of death?

Reply. No, if there is a grave cause for joining them, for example, for the sake of legitimating offspring or for greater security of conscience, because that case appears altogether to be excepted from the law. - Schmalzgrueber, book 4, title 3, no. 74.

QUESTION 3. Can the Vicar General dispense from the proclamations of the banns?

Reply. More probably, yes, provided the Bishop has not reserved this to himself or does not contradict it. The reason is that the Synod grants this faculty to the Ordinary; and under the name of the Ordinary, if the matter belongs to his office and he is not expressly excluded, there also comes the Vicar General, since he constitutes one tribunal with the Bishop ². - St. Ligorius, no. 1007.

² The contrary Declaration of the Sacred Congregation which is customarily brought forward is regarded as suspect by most, since, although sought, it could never be found; and granting that it existed, the Vicar could still do this by force of custom, which the Synod of Trent did not revoke, for declarations of the Congregation do not abolish custom.

Further, take care to observe three things here:

1. Both the Bishop and the Vicar General can subdelegate to others the faculty of dispensing from the denunciations. See St. Alphonsus (On Privileges, no. 58), Sanchez (book 3, disputation 7, no. 21), and Schmalzgrueber (book 4, title 3, nos. 30-32).

2. If at any time, because of some urgent necessity, the celebration of matrimony precedes the denunciations to be made afterward, the matrimony, as the Synod of Trent observes (session 24, chapter 1, On the Reformation of Matrimony), must not be consummated before the denunciations have been made. Although Sanchez (book 3, disputation 11, no. 3) holds this precept to be grave, nevertheless, according to others with Diana (volume 2, treatise 6, resolution 63, no. 3), it binds lightly if there is no suspicion of an impediment; in this case the Holy Synod itself (l.c.) adds that the denunciations can be remitted by the Ordinary.

3. What several dispute on each side (see St. Alphonsus, book 6, no. 1007, doubt 2), namely, whether even the Pastor can dispense from the denunciations (which, if the words are accepted in their proper sense, must be denied, because the Pastor does not have jurisdiction in the external forum), is easily reconciled if the question is more properly made whether a Pastor can sometimes assist at a matrimony, the denunciations having been omitted, without a dispensation obtained from the Ordinary. It must be denied both when the matrimony can be deferred while the Bishop or his Vicar is approached, and when the dispensation is not owed but is granted from mere favor; in these cases neither is it permitted to use epikeia, which has place only in necessity. Sanchez (book 3, disputation 10, no. 30); Reiffenstuel (book 4, title 3, no. 40); Schmalzgrueber (ibid., no. 45). But it must be affirmed when there is danger in delay and the Ordinary cannot be approached. St. Alphonsus (l.c.); Sanchez (l.c., no. 27); Schmalzgrueber (l.c., no. 42). Or even when, with that danger pressing, the Ordinary unjustly denies a dispensation which he is bound to grant and the Superior of the Ordinary himself cannot be approached. St. Alphonsus (l.c.); Sanchez (l.c., no. 29). Although Reiffenstuel (book 4, title 3, no. 46) rightly observes that this is scarcely to be advised, because not the Pastor but the Ordinary is the judge in the external forum, and it is committed to the judgment of the Ordinary, not of the Pastor, whether the alleged cause is of such a kind that dispensation is owed. Hence, as Schmalzgrueber warns (book 4, title 3, no. 44), the Pastor can be punished even though perhaps he did not sin in the internal forum.