Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ I. On Diriment Impediments in General
Proposition I
The Church has the power to constitute impediments not only impeding but also diriment of matrimony. It is of faith.
It is confirmed, second, from theological reason. For the Church received from Christ every power necessary or even useful for rightly governing the Christian commonwealth; but the power of constituting impediments of matrimony is very useful, indeed even necessary, so that matrimony may be treated by the faithful with the honor and decency owed to the Sacraments; therefore, etc.
Proposition II
The Church alone can constitute diriment impediments of matrimony, and consequently SECULAR Princes with respect to Christian subjects cannot CONSTITUTE IMPEDIMENTS except for merely civil effects.
- It is proved from the Council of Tours in the year 1583, specially approved by Gregory XIII, chapter 19, On Jurisdiction, section 6, where it is said thus: Since it is most certain law that matrimonial causes belong to the ecclesiastical forum, and therefore that the knowledge and decision of them have been altogether forbidden to lay judges by the sacred Canons, under penalty of anathema we prohibit all except Bishops and their Officials from taking cognizance of and deciding concerning them and their appendages and circumstances, as, for example, if there is a question of conjugal adherence. - Collection of Councils (Labbe).
- It is evident from the Council of Trent itself, session 24, chapter 12, where it defined that matrimonial causes pertain to ecclesiastical judges.
- It is established from the letter of Pius VI to the Bishop of Motula, September 17, 1788, in which he expressly declares that such is the sense of canon 12 of the Council of Trent.
- Theological reason confirms this. For since matrimony was elevated by Christ to the dignity of a Sacrament, it is necessarily subject to the spiritual power alone. And although the nature of a contract and the nature of a Sacrament are distinguished in matrimony, nevertheless the whole matrimony pertains to the Sacrament, since the contract is its matter and cannot be separated among Christians from the nature of a Sacrament. Otherwise, the greatest inconveniences would follow from a conflict of power if two powers independent of each other could constitute impediments of matrimony; for what one built up, the other could destroy.
- Questions. - QUESTION 1. Does an impediment invincibly unknown invalidate a matrimony contracted with it?
Reply. Yes. The reason is that the law constituting such an impediment has as its object the invalidation of the contract itself, and therefore it always invalidates the contract independently of the knowledge and will of the contracting party. Moreover, invalidating laws must obtain their effect in every case unless the general good absolutely stands in the way, as will be said concerning the impediment of clandestinity, which ceases only when, while persecution rages, suitable Priests 1 cannot be had to assist at marriages. - Lacroix, no. 626, and others most commonly.
1 Namely, even a Priest, unless he has a delegated faculty from him who by ordinary right ought to assist at the contract of matrimony, is altogether incapable of conferring any validity upon the contract by his presence.
Hence if, after matrimony has been contracted, a woman certainly discovers a diriment impediment by force of which the matrimony was null, she can neither seek nor render the debt, even if she were compelled to it by a threat of death, because the union would be fornicatory, which is licit in no case. Some except the case in which the woman would conduct herself merely passively, so that she would cooperate in such an act altogether materially; but not even this must be conceded, since there is question of a thing intrinsically evil, unless, according to a probable opinion, the woman is compelled to it by fear of death, provided nevertheless that the danger of consent is absent. - Recall what was said in volume 1, On Human Acts, no. 21, and On the Fifth Precept, no. 390.
- QUESTION 2. Are those impediments which appear to have the nature of a penalty, such as the impediment of crime, also incurred even when unknown?
Reply. Yes. Thus more commonly with Lacroix, book 6, part 3, no. 641 2. The reason is that those impediments have primarily the nature of a bond and only secondarily the nature of a penalty; and consequently they are always incurred, although ignorance excuses from a penalty according to the common opinion when there is question of a merely prohibiting law.
2 Ferdinand Krimer should be consulted concerning this question, for he treats it expressly (On the Decretals, book 4, nos. 1011-1029), and, having weighed the reasons of each side, concludes thus (no. 1024): Of these opinions opposed to each other, the affirmative... is without doubt very probable; nevertheless, the negative is not only probable absolutely, but also retains its probability in relation to its opposite. For the greater probability of the affirmative opinion neither proceeds from certain or evident principles nor concludes certainly or evidently, but only probably, and perhaps with some excess from authority; consequently it does not remove from the negative its probability even when compared with the affirmative. For it still remains within the limits of pure probability and has very probable solutions to its reasons, or solutions supported by a prudent foundation.
That Krimer truly affirms that the affirmative opinion is deduced neither from certain principles nor by a certain conclusion is easily evident. Take, for example, Suarez, who, while he otherwise teaches that ignorance does not excuse from incurring this impediment, nevertheless establishes (On Laws, book 5, chapter 19, no. 6) that this impediment is penal. Thus he says: Among the impediments of matrimony, those which arise by reason of an offense are penal, as are the killing of one's wife with a promise, adultery with someone while a spouse is living together with a promise of future matrimony, etc. And he gives the reason (ibid.) because the invalidation of an act is a great burden and can cause harm; therefore, of itself it can be a sufficient penalty, and sometimes it is very well accommodated to the offense. Palaus agrees with him (tract 3, disputation 2, point 2, no. 2), where he writes: Sometimes the annulment of an act is introduced as a punishment for a committed offense, as IN THE OPINION OF ALL it is introduced... if a married person, after giving a pledge of matrimony, committed adultery with someone, etc. Cardinal de Lugo speaks no differently (On Penance, disputation 16, no. 337): In these cases matrimony is not prohibited because of a motive of special uprightness, but as punishment for the offense committed and to provide... for the safety of the spouse, whose life would be endangered if adulteries, promises, or plots to kill the spouse were made with the hope of a future matrimony.
But if this, as Palaus said, must be held according to the opinion of all, then the question whether ignorance of the invalidation... prevents the invalidation of the act - to use the words of Suarez himself, l.c., chapter 22, no. 4 - depends upon the question whether ignorance of the penalty alone excuses from it, even if there was sin against the law. And he himself adheres thus to the negative opinion (ibid.): In this question we judged the negative side to be truer. Therefore, regarding the special question of the penalty of invalidation he argues thus: Hence it must consequently be said in the present matter that when a human law prohibits an act by adding invalidation by way of penalty, if the law is not unknown as prohibiting, although it is unknown as invalidating, the act done against the law is invalid; because such ignorance does not excuse the sin against the law and consequently does not excuse from the penalty, although it is unknown; therefore neither does it excuse from the invalidation. Thus Suarez.
But is this foundation solid? For Sanchez (On Matrimony, book 9, disputation 32, no. 17), with respect to that general principle, thinks the opposite opinion truer. Thus he says: Nevertheless, I believe it truer that all these penalties are not incurred where the aforesaid ignorance of the law - namely, of the penal law - is present. Therefore, concerning invalidation itself he thus concludes to the contrary (ibid., no. 18): Add that the annulment of an act, when it is not from a defect of solemnity but as a punishment of the delinquent, is not incurred by those ignorant of the law, as Antonius de Butrio well observes on chapter 2, On Constitutions, no. 19. That this must also be referred to the invalidation of matrimony is evident from what he has elsewhere (book 7, disputation 5, no. 7), saying that matrimony is forbidden between certain persons as a punishment for an offense committed.
From this you will understand why, supposing that principle of Suarez which Palaus rightly added to be in the opinion of all, namely, that matrimony in the case is invalidated as a punishment for crime, Leander of Murcia (Disputations on I-II of St. Thomas, book 2, disputation 4) concluded that all those stand for this opinion - namely, that the penalty of the invalidation of matrimony is not incurred - who assert that irregularity AND OTHER PENALTIES imposed by ecclesiastical laws are not incurred by one who is ignorant of them, even by vincible ignorance..., provided it is not crass and supine.
Moreover, that this opinion, which requires knowledge not only of the prohibiting law but also of the punishing law for penalties to be incurred, pleased many can be learned very easily from the Doctors cited by Sanchez (l.c., no. 17). And besides the fact that the Author also acknowledges this to be the common opinion, for the present it can suffice that Schmalzgrueber (on book 5, title 37, no. 109) writes likewise from the common opinion: It is as a rule, he says, that one committing some offense is indeed subject to penalties proportioned to that offense, but not to other extraordinary penalties which are imposed to avoid the frequent practice of the offense or for another cause, unless the delinquent knew that the offense was prohibited under that penalty. After Suarez himself (On Censures, disputation 4, section 9, no. 21) reported this very principle from Navarrus in these words: Navarrus adds that whenever a penalty is exorbitant and extraordinary, OF WHATEVER KIND IT MAY BE, if it is unknown, even if the offense is committed, it is not incurred, he sincerely admits (ibid., no. 22) that the reasoning of Navarrus is probable, except that it must not be extended to the penalties which God inflicts upon sins in eternity; for otherwise, as he says, those who are ignorant of the eternity of the penalties would not incur them. But no one doubts that the invalidation of matrimony in the case is an extraordinary penalty; therefore Navarrus most rightly applies that principle thus to the impediment of crime (Manual, chapter 22, no. 46): If each party probably is ignorant of the impediment, they can contract matrimony as soon as the one who impeded it shall have died. From these things it is evident that the principles admitted by Suarez himself lead rather to a conclusion contrary to the one he wishes.
Thus, in order to furnish support to that wavering conclusion, they take refuge in what the Author also intimates and Sporer expresses thus (On Matrimony, no. 44): This impediment was introduced by the Church not precisely as a punishment for the offense, but principally to deter men lest they commit crimes in the hope of matrimony, as all the Doctors unanimously suppose. Hence Suarez (On Laws, book 5, chapter 19, no. 10) holds that this impediment has rather the nature of a remedy. Thus he says: Here there is considered not only the common utility which is found in a penalty insofar as it is a penalty, which is to avenge the offense...; but further there is considered the utility of a REMEDY, so to speak, by taking away occasions for perpetrating similar offenses. This utility is not common to every penalty, nor does it belong to its nature insofar as it regards vindication. Therefore, in this way we say that through that invalidation of matrimony in the aforesaid cases occasions for perpetrating similar offenses are taken away, and that this cause was sufficient for imposing such impediments even without vindication of the offense, which could have been effected through another penalty.
You will find a lengthy and complete direct reply to these things in the praised Krimer (on book 5, title 7, nos. 729-743), who most diligently pursues all the objections of the opposing side. For at present it will suffice us to show that these things too, according to the opinion of those very men who bring them forward, altogether waver and indeed destroy one another.
And first, while these men, to defend their cause, contend that the impediment of crime was introduced rather by reason of a remedy than as a punishment for an offense, behold Haunoldus (tract 1, On Laws, no. 109 and following), who, when about to refute John Salas and Pallavicino, who contend with us in this matter that invalidating laws imposed precisely as a punishment for some offense do not bind those who are ignorant because inculpable ignorance excuses from penalty, thinks it necessary, lest he betray his cause, to contend to the contrary that the invalidation of matrimony in the case is a pure penalty. Thus he says (l.c., no. 110): That this invalidation - namely, of matrimony contracted by a murderer or adulterer with an accomplice from an intention or promise of matrimony, etc. - is a pure penalty appears certain to me. Then Haunoldus thus rejects the support which Suarez sought in the utility of a remedy (ibid.): For although by consequence it is favorable to spouses, nevertheless, if this stood in the way, no invalidating law would finally be a pure penalty, since each can finally be resolved into some favor. Therefore he finally takes refuge in denying, contrary to the common opinion, that ignorance of a penalty excuses from incurring that penalty. But since all make an exception whenever the penalty is extraordinary, this one thing was finally left to him: to contend (ibid.), against the understanding of all, that the invalidation of matrimony because of the killing of one's wife or adultery, etc., is not an extraordinary penalty. And thus one of the patrons of that doctrine is compelled to destroy what another builds up; which certainly is not accustomed to happen when solid, certain, and firm principles are employed.
But what fear impelled Haunoldus to contend that the invalidation of matrimony in the case is a pure penalty? He was indeed compelled by another principle which the patrons of the same cause, altogether forgetful of themselves, establish elsewhere. For consult, for example, St. Alphonsus (book 7, no. 351), and you will see that the same Doctors, in order to prove that ignorance of the penalty, namely, of the irregularity itself, does not excuse from incurring irregularity from an offense, employ this very reason: that irregularity is not a medicinal penalty for preventing crimes in the future, but is an incapacity or punitive penalty on account of the stain of guilt. And thus
Suarez also has it altogether thus (On Censures, disputation 40, no. 9): Here that special reason ceases because of which we said that invincible ignorance of excommunication or of a censure properly so called excuses from incurring it, because it is a medicinal penalty which is formally imposed for contumacy and so that one may recede from it; but irregularity, when it is a penalty, is imposed not as medicinal but in vindication of the offense...; and therefore this ignorance alone does not excuse from irregularity. Nor does Schmalzgrueber speak otherwise, as though from the common opinion (book 4, title, no. 40): The common doctrine with Covarruvias affirms that an ignorant person incurs the penalty alone, namely, irregularity, because these are not medicinal, etc. Likewise La Croix (book 7, no. 482) gives as the reason why irregularity from an offense is incurred by one ignorant of it that irregularity is not... a medicinal penalty requiring knowledge or contumacy, etc.
These things having been established, and this question concerning irregularity now being omitted - for, as we shall see in its place with St. Alphonsus, it is equally probable that irregularity is not incurred in the aforesaid case - what remains to be said concerning the argument brought forward above by Sporer and Suarez, namely, that the impediment of crime is therefore incurred even by one ignorant of it because it has rather the nature of a remedy than of a penalty? What, I ask, is this: that the quality of a medicinal penalty, which previously, when the impediment of crime is treated, is brought forward as the reason why a penalty ought to be incurred even by one ignorant of it, is afterward, as we have seen with our own eyes, urged by the same authors as the reason why ignorance ought to exempt from incurring the penalty? Shall we hold firm that argument of theirs which they afterward employ to establish the opposite? Nor do they alone use it, but, what must certainly appear surprising, even those who defend that the impediment of crime is not incurred by one ignorant of it use the same argument taken from the nature of a medicinal penalty. For Schmalzgrueber (book 4, title 7, no. 58) presents their opinion thus: They give the reason that the impediment of crime, from the disposition of ecclesiastical law, has the nature of a penalty for the crime perpetrated and of a remedy conducive to preserving the fidelity of marriages and the safety of spouses and to preventing various evils; but according to common doctrine, penalties, especially medicinal ones, established by ecclesiastical law are not incurred by those who invincibly are ignorant that they were established; therefore, etc. This argument certainly ought to press the adversaries all the more validly because they not only concede each premise but assume it as most true and urge it for themselves against others. And perhaps someone will think it must be attributed to the perceived weakness of the reasons for the affirmative opinion that Sporer (l.c.), after also mentioning without censure those who defended the opposite negative opinion, concludes: Therefore I, with Father Gobat, would not fear to leave in good faith those who in good faith contracted while bound by the impediment of crime.
What Wiestner objects (On Conjugal Impediments, part 2, no. 21) is of still less weight: that there is no parity with censures, irregularity, and deprivation of the conjugal debt, because censures require special contumacy, which ceases in one ignorant that a censure is attached to his offense. Krimer replies well (l.c., no. 1026): Although censures require contumacy, nevertheless this does not essentially suppose an admonition or threat of punishment made by a man; for this fails in censures latae sententiae imposed generally by law, for incurring which the admonition and threat of the law itself, imposing the censure upon the delinquent by the fact itself, suffices. But this admonition and threat of the law also precedes the offense to which the impediment of crime is attached. Therefore here too that contumacy is present. If, therefore, a censure imposed by the law itself is incurred by one ignorant of it without another contumacy, the same must be said of this impediment. Therefore, by reason of contumacy there is no disparity in this respect between censures and this impediment.
Others - see Diana, volume 2, tract 6, resolution 170, no. 3 at the end - employ this argument for the affirmative opinion: that the impediment of crime is not a penalty but an incapacity, or, if it must be called a penalty, nevertheless it is at the same time and principally an incapacity for contracting. But this reason proves little, because the incapacity itself was established by law as a punishment for the crime; and therefore what is required to incur the penalty is also required to incur the incapacity, and what exempts from the penalty will also exempt from that incapacity.
They further argue - see La Croix, book 6, part 3, no. 642 - from the practice and style of the Curia, because those guilty of this crime are never permitted to contract without a dispensation, as Pyrrhus Corradus testifies in Practice of Apostolic Dispensations, book 8, chapter 9, no. 17; therefore Diana (l.c.) holds the negative opinion as very prejudicial to the sacred tribunals of the Penitentiary and the Roman Dataria. To this objection it can be replied with Benedict XIV (Canonical Question 185, nos. 26-27) that the grant or denial of any dispensation or faculty by the Sacred Congregations in no way changes either the state of controversies or the condition of laws. Therefore, just as, according to the same Benedict XIV there, a dispensation granted or denied concerning irregularities or censures does not establish that the irregularity or censure was incurred, and the grant or denial of a faculty sought, for example, by a mendicant Regular who already possessed it by force of his privileges detracts nothing from the privileges of that Regular or of other Regulars, so neither does a dispensation granted for convalidating matrimony establish the preceding nullity of that matrimony, nor does a dispensation granted for contracting matrimony establish the certain existence of the impediment. And indeed, is it the practice of the tribunals of the Sacred Penitentiary or Dataria to command marriages to be celebrated without a dispensation when the petitioners have recourse to them for a dispensation even in a case of a doubtful impediment? And yet who is ignorant - see St. Alphonsus, book 6, no. 901 - that matrimony can be celebrated both validly and licitly without a dispensation with mere probability of the absence of an ecclesiastical impediment? But to what is added from Diana, Krimer replies well (cited book 4, no. 1023) that no prejudice or injury is done to those tribunals by this opinion; otherwise all opinions of the Theologians which sometimes deny the necessity of seeking a dispensation would have to be abolished. But no one contends that through the use of such opinions anything owed by right to those tribunals is withdrawn or denied.
Finally, others argue ad hominem from an absurdity: if a penal impediment necessarily requires knowledge of the penalty in the delinquent, the same would also have force regarding the impediment of affinity from illicit intercourse. For the solution of this difficulty someone perhaps would refer the objectors to what Engel has concerning this question (book 4, title 14, no. 11), for he cites Doctors who favored the opinion exempting the ignorant also from this impediment. But a reply of this kind is neither necessary nor opportune. For Krimer observes much better with others (l.c., no. 1018) that the incapacity from affinity does not of itself necessarily suppose any offense, but only the nearness of persons which flows from the commingling of blood; therefore affinity induces this incapacity equally whether it arises from licit or illicit commingling, although by the benignity of the Council of Trent the extension of the incapacity arising from a condemned union was, for just causes, restricted to narrower limits.
And let these things suffice both so that it may be established that Krimer did not say idly that the affirmative opinion concludes neither from certain or evident principles nor certainly and evidently, and also that the scandal of certain fainthearted men may be tempered, who are astonished and in some manner recoil when they hear that the opposite negative opinion not only has long been accustomed to be handed down as truly probable in the schools of the Roman Seminary under the presidency of its emeritus Professor, now Bishop of Loreto, the Most Illustrious and Most Reverend Joseph Cardoni, but is also spontaneously admitted as such in the assembly of the Examiners of the Roman Clergy. You have a consequence of this opinion in the things which we brought forward a little above from St. Alphonsus (book 6, no. 901), and you have it indicated below (no. 789). Besides those cited here, you have in the praised Krimer, l.c., nos. 1014-1015, those among both the ancient and the recent writers who held this opinion. Compare also Pichler, who establishes and excellently vindicates this thesis (book 4, title 7, no. 6): It is probable that the impediment of crime is not incurred by those who are ignorant that it was attached by law to their offense. Reinhard Baumgartner also proposes and vindicates this thesis (Conclusions from the Five Books of the Decretals, book 4, title 7, conclusion 4); he published his work at Rome in the year 1759.
QUESTION 3. Do the laws of the Church constituting diriment impediments bind even in a case of the gravest inconvenience, for example, danger of death, etc.?
Reply. Yes, because from what has been said, ignorance, even complete, cannot render capable of that matrimony one who is rendered incapable by law; therefore much less can fear of harm, etc. Hence, if someone has contracted an impediment, for example, of affinity with his future bride through fornication with her sister, and the Superiors are unwilling to dispense from this impediment, he cannot marry her for any cause or fear 3.
3 See, however, what the Author himself observed above, after St. Alphonsus, concerning a certain case of necessity, no. 771.
- QUESTION 4. Is it licit to contract matrimony with a doubtful or probable impediment?
Reply 1. More probably, yes, in a doubt, or probability, of ecclesiastical law concerning the absence of an impediment; because if perhaps the impediment is truly present, the Church is judged to supply the defect of the contract invalid according to Canon law, just as she supplies a defect of jurisdiction whenever the Doctors commonly hold that she supplies jurisdiction in the Sacrament of Penance where common error intervenes. Moreover, the opinion teaching that the Church also supplies in the present case of a doubtful impediment is generally received as probable by innumerable Doctors who favor it. - Thus Lacroix, no. 534. - St. Ligorius, no. 901, and others commonly 4.
4 ** At this place the VV. admonish Father Gury (page 947, no. 158) that St. Alphonsus requires that the opinion concerning the absence of an impediment be universally, or at least certainly, received by Authors as probable. And they refer the reader to page 792.
Gury certainly does not speak of a doubtful probability. Moreover, what the opinion of the Doctors is concerning this matter may be seen above in the note to no. 724.
Reply 2. No, if there is question of probability of divine or natural law, for example, in the impediment of bond or of impotence, because then the Church cannot supply the probable defect, since that impediment does not depend upon the Church. Therefore the matrimony thus contracted would remain doubtful; and consequently it is never licit to receive a Sacrament with such a doubt 5. Therefore, etc.
5 St. Alphonsus (book 6, no. 902) judged that when a most grave cause urges, matrimony can be contracted with mere probability that an impediment does not exist, even if it is of divine or natural law, provided that there is also a declaration of the Supreme Pontiff as interpreter of divine law; and that this is established from the declaration of Urban VIII. In a doubt whether the marriages of certain infidel Indians were valid, and therefore whether those converted to the faith were bound to take the first of the several wives whom they had, or could choose whichever of them they wished, he replied that where the opinions of the Doctors on each side were probable, the Missionaries should follow the opinions more favorable to the barbarians according to the condition of the places and persons. You have the supplication presented to Urban VIII by Father de Lugo, afterward Cardinal, concerning this matter, and the reply of the Pontiff, in Cardenas (Theological Crisis, part 4, dissertation 2, no. 552).
Nevertheless, it must be observed that Gregory XIII and the same Urban VIII had already given those Missionaries in addition the faculty of dispensing with respect to the bond itself of a matrimony contracted in infidelity and not yet consummated again after the conversion of both spouses, as we already saw in the note to no. 759. Therefore, the doubt, if any remained, concerning a bond perhaps existing with the first wife was provided for, or certainly could be provided for, by a dispensation at least as a precaution. Benedict XIV also recalls (On the Diocesan Synod, book 6, chapter 21, no. 6) that this faculty of dispensing was customarily granted to Bishops, Vicars Apostolic, and Prefects of Missions, expressed in these words: Of dispensing with Gentiles and infidels having several wives, so that after conversion and baptism they may retain whichever of them they prefer, if she too becomes faithful, unless the first wishes to be converted. These final words certainly do not indicate a spouse who was unwilling to cohabit without injury to the Creator, etc., and therefore one who could be said, according to the phrase of Paul, to depart; for thus no dispensation would have been necessary. And from the Acts of the Council of Lima - see the note to no. 759 above - it is established that a faithful person was permitted to cohabit with a spouse still infidel, at least for a time. Therefore the dispensation is referred to the case in which, not by force of the Pauline privilege, but by force of a Pontifical dispensation, the matrimonial bond, if any existed with the first spouse, was dissolved. But that Lambertini (l.c.), after bringing forward this faculty of dispensing, somewhat wonderingly observes that no mention is made in it of the infidel spouse having to be juridically questioned must be attributed to the prejudice which he had imbibed from Pontius, as it was possible to observe already in the note cited above.
Reply 3. No, also if there is question of probability of fact. The reason is that in probability of this kind the Church is not presumed to dispense. Moreover, the contrary opinion is not commonly received as probable, and otherwise excessive inconveniences would follow if, after the matrimony had been contracted, the error were discovered. - Thus commonly. - St. Ligorius, no. 902.
- QUESTION 5. Is it licit for spouses to use matrimony if, after the nuptials have been entered, a doubt concerning some impediment arises?
Reply 1. No, until a sufficient inquiry concerning the truth has been made. If, however, only one doubts, although that party cannot seek the debt, the party must nevertheless render it to the other seeking it in good faith. - St. Ligorius, no. 903.
Reply 2. Yes, if, after serious diligence has been employed to discover the truth, the doubt still remains, because in a doubt one must stand for the validity of the act. Thus commonly against a few. - St. Ligorius, no. 904, etc.
- QUESTION 6. Is a matrimony contracted with an impediment believed to exist, but not existing, valid?
Reply 1. If the contracting party is not altogether certain of the impediment but in some way doubts concerning it, the matrimony is valid. - Thus commonly with Lacroix, no. 525. - The reason is that the party contracts at least conditionally, namely, insofar as I can, although he does not advert to that condition; therefore, since the impediment does not exist, the consent is already absolute.
Reply 2. If the party contracts with certainty of the impediment, which he regards as of little importance, so that he determines to live in concubinage, it is certain that the matrimony is invalid.
The reason is that then the will to contract matrimony is not predominant. Reply 3. If the party contracts with certainty of the impediment, but grieving over the impediment and not daring to disclose it lest the matrimony be prevented or the party be defamed, or because of some inadvertence, the matter is disputed. More probably, the matrimony is valid because of the predominant will to contract it. - Thus Lacroix, ibid. - Nevertheless, in practice, as a precaution the party should be induced to renew consent.
Errors Condemned by Pius IX — Concerning Matrimony and its Impediments
- Among the acts of Pius IX many things concerning matrimony are found, of which it is useful to report the principal ones.
I. In the condemnation and prohibition of the works of Nuytz, he speaks thus concerning this impious author in the Brief of the Apostolic See, August 22, 1851:
Many false things are also asserted concerning matrimony:
That in no way could it happen that Christ elevated matrimony to the dignity of a Sacrament;
That the Sacrament of Matrimony is nothing but something accessory to the contract and separable from it, and that the Sacrament itself consists in the nuptial blessing alone;
That by natural law the bond of matrimony is not indissoluble;
That the Church does not have the power to introduce impediments diriment of matrimony, but that this belongs to the civil power, by which existing impediments are to be removed;
That matrimonial causes and betrothals by their own nature pertain to the civil forum;
That in later centuries the Church began to introduce diriment impediments, not by her own right, but using that right which she had borrowed from the civil power;
That the Tridentine form does not bind under penalty of invalidity where the civil law prescribes another form beforehand and wills matrimony to be valid when this new form intervenes;
That Boniface VIII was the first to assert that a vow of chastity emitted in ordination renders nuptials null.
- II. In the Allocution of September 27, 1853, concerning the affairs of the Republic of New Granada (Nouvelle-Grenade), the Supreme Pontiff spoke thus:
... Since no Catholic is ignorant, or can be ignorant, that matrimony is > truly and properly one of the seven Sacraments of the evangelical law, instituted by Christ the Lord, and that therefore among the faithful matrimony cannot exist WITHOUT BEING AT ONE AND THE SAME TIME A SACRAMENT; and that for this reason any other union between a Christian man and woman, made by force of any civil law whatever, APART FROM THE SACRAMENT, is nothing other than a shameful and deadly concubinage, condemned for so long a time by the Church; and consequently that THE SACRAMENT CAN NEVER BE SEPARATED FROM THE CONJUGAL COVENANT, and that it belongs altogether to the power of the Church to decree all those things which in any way can pertain to that same matrimony, etc.