Point III. On the Impediment of Relationship

A threefold kind of relationship is distinguished, namely: first, natural; second, spiritual; third, legal. Concerning each separately.

799. • Natural relationship, or consanguinity, is the bond of persons descending from the same proximate stock through carnal generation, which arises from unity and participation in the same blood.

In consanguinity three things must be distinguished, namely: first, the stock, or the person from whom others derive their origin; second, the degree, or the measure of distance of one person from another; third, the line, or a series of persons descending from the same stock.

The line is twofold: one direct and the other collateral or transverse. The former is a series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents or great-grandparents, etc. The latter, however, is a series of persons who, although they have a common stock, nevertheless do not descend from one another, as brothers, first cousins, etc.

A collateral line is equal or unequal according as the blood relatives are equally distant from the common stock.

800. Statements. - I. Consanguinity in the direct line, at least by positive law, invalidates matrimony indefinitely in any degree whatever. This is evident from Canon law in the Response of Nicholas I to the Bulgarians, chapter 37.

II. Consanguinity in the collateral line invalidates matrimony through the fourth degree inclusively, and not beyond. This is established from the Fourth Lateran Council and several places of Canon law.

III. Consanguinity invalidates matrimony also between those who were born only of the same father or only of the same mother; likewise between blood relatives born of illegitimate unions. The reason is that diversity of father or mother, or illegitimacy, does not prevent carnal consanguinity from existing between them.

801. • I. Rule. In the direct line, as many degrees are counted as there are persons, with the stock omitted; or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, with the father excluded as the stock. Between a grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely, the grandfather, the father, and his son, or the grandson with respect to the grandfather. Likewise posit a great-grandfather or great-great-grandfather, and you will have three or four degrees.

II. Rule. In an EQUAL collateral line, there are as many degrees as there are persons on one side, with the stock omitted. Hence a brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they also are distant from each other by one degree. Likewise paternal first cousins, or the children of two brothers, are each distant by two degrees from the common stock or grandfather, and therefore are blood relatives to each other in the second degree. The same must be said of others.

III. Rule. In an UNEQUAL collateral line, there are as many degrees as there are persons on the more remote side, always with the stock omitted. Hence if one is distant from the common stock by two degrees and his blood relative by three, they will be blood relatives to each other in the third degree, according to the saying: The more remote degree draws the nearer to itself. Therefore Berta will be related in the second degree to her paternal uncle, or her father's brother, because she is distant by two degrees from the common stock, namely, her grandfather, although the paternal uncle himself is separated by one degree from the same stock, since he is the son of the stock, or the brother of Berta's father. The same must be established concerning all others.

For computing degrees according to civil law, the number, or sum, of all the persons in each line is taken, with the stock omitted. Therefore in the direct line they are computed in the same manner as canonical degrees; in an equal collateral line, the canonical degrees are doubled; in an unequal collateral line, the lesser line is doubled and the excess of the greater is added.

802. Questions. - QUESTION 1. By what law does consanguinity in the aforesaid degrees invalidate matrimony?

Reply 1. It is certain that consanguinity in the direct line invalidates matrimony in the first degree by natural law and, more probably according to the opinion of certain Theologians ¹, indefinitely also in the other degrees. But the case, as is evident, is most remote from practice.

¹ Others, however, think differently; and omitting for now the various opinions - in Schmalzgrueber, book 4, title 14, no. 30 - which extend the force of this impediment to more or fewer degrees, there are those who, with St. Thomas, think that only the first degree renders nuptials invalid by natural law. St. Alphonsus (book 6, no. 470) holds this opinion equally probable with the one which the Author reports, and several others with Schmalzgrueber (ibid., no. 31) judge it preferable to the others. But, as the Author well observes, these things contribute nothing to practice.

Reply 2. As regards the collateral line, in the first degree it more probably ² invalidates by natural law, or at least by positive divine law, since the Church never dispenses so that brothers and sisters may be joined, and infidels themselves detest nuptials of this kind; in the other degrees, according to all, it invalidates by ecclesiastical law ³, as is deduced from the practice of the Church, which dispenses from them.

² The Doctors disagree whether matrimony between brother and sister is invalid by natural law, and some call the affirmative opinion more probable, others the negative. Some contend that the Roman Pontiffs never dispensed as regards this degree, others that they sometimes dispensed. See Schmalzgrueber, book 4, title 14, nos. 45-46. And, as St. Alphonsus also observes (book 6, no. 470), St. Thomas also stands for the opinion which judges this union valid by natural law. It would indeed be useless to review the arguments of each side and the replies to the contrary reasons, which can be seen everywhere among the Doctors. See St. Alphonsus, l.c., and Schmalzgrueber, l.c., nos. 45-48. Meanwhile observe how much prejudice spontaneously flows from this against the opinion which, while denying to princes the power of establishing diriment impediments for infidel subjects, contends that natural law alone has force for them. For if this is presupposed, a matrimony contracted in infidelity between a brother and sister could not be held certainly invalid, however much it might be condemned by their laws; and since in a doubt, according to the general principle, one must stand for the validity of the matrimony, if both of them were converted to the faith they consequently could not be separated, even if that union were a scandal at once to infidels and to the faithful.

³ Hence follows a consequence of the greatest importance. For since the laws of the Church do not bind those who are not baptized, marriages contracted between infidels who are joined in these degrees of consanguinity must therefore be held valid, considering natural law; and consequently, if they are converted to the faith, they are neither to be separated nor do they need a dispensation in order to remain in the union contracted. What is said concerning the impediment of consanguinity must also be said concerning the other impediments of merely ecclesiastical law.

The Doctors disagree whether marriages which heretics enter with an impediment of merely ecclesiastical law are to be held valid. See Schmalzgrueber, book 4, title 1, nos. 378-380, who, after bringing forward the reasons of each opinion, appears to incline toward the affirmative side.

QUESTION 2. How can degrees of consanguinity be found easily?

Reply 1. If the common stock is known, write that person's name on a sheet, and below it set down the generations and names of the persons descending on this side and that until you arrive at the persons to be joined in matrimony; from this you will easily compute the degrees.

Reply 2. If the stock is unknown, proceed thus: Write in the lower part of the sheet or table the name of the bridegroom on one side and the name of the bride on the other. Then above the name of the bridegroom note the names of those blood relatives who perhaps can be the cause why some relationship exists with the bride; do the same with respect to the bride. When this notation has been made, ascend on one side and see whether they meet in a common origin or stock from which the bridegroom and bride were mediately generated. Hence, after you have found it and at the same time observed whether the spouses are in an equal or unequal line, finally apply the rules to be proposed below, and the resolution of the doubt will be evident. Let the following be an example of these things:

Great-great-grandfather: Didacus Noel

In this example Petrus Pascal and Maria Noel are blood relatives in the equal fourth degree. But if Maria Noel descended immediately from Maurus Noel, Arthur Noel would be her grandfather and Didacus Noel her great-grandfather, and therefore they would be blood relatives in the fourth degree, but touching the third.

803. • Another method is also indicated for recognizing degrees of relationship, namely, with a genealogical table or tree of consanguinity. Inspect the table and see in what line and in what cells you find the persons concerning whose relationship inquiry is made, and attend to how many degrees they are distant from the common stock. Example: You ask, for example, in what degree Titius the bridegroom is related by blood to Berta the bride, since you already know that the grandfather of the former was the brother of the great-grandfather of the latter. Place Titius in the middle cell N. Ascend to his grandfather; the latter's brother on the right side, in the cell where paternal uncle is marked, will be Berta's great-grandfather. Descend through his direct line by counting the grandfather, the father, and the bride herself; hence the common stock will be the one who is found in the third cell above the middle line. Thus you will count three degrees on the bridegroom's side and four on the bride's side; hence you will conclude that they are blood relatives in the fourth degree touching the third.

Imagine any other similar examples, placing either of the spouses in any cell, whether the middle one or one at the side, and ascending to the common stock so that from there you may descend to the other spouse; but pay no attention to the names which you find in the various cells encountered, because all of them will vary according to the cell selected, as is evident.

Consanguinity between the same persons can arise from a double or even multiple source, and then there is a double or multiple relationship, or an impediment to be disclosed in the petition for a dispensation. Thus, for example, if two brothers marry two women related by blood to each other, the children proceeding from each matrimony will be doubly related by blood to one another ⁴, and this circumstance must necessarily be declared.

⁴ See several examples both of doubled and of tripled consanguinity in de Justis (On Matrimonial Dispensations, book 2, chapter 6, no. 61 and following).

Note. First, persons joined by a drawn line are among themselves in the direct line and with the others in the collateral line. Second, where the lines are joined, there the stock is found.

804. • QUESTION 3. Who are collateral blood relatives?

Reply. They are the following:

• PROPATRUUS, or the brother of one's great-grandfather (great-uncle).
• PROAMITA, or the sister of one's great-grandfather (great-aunt).
• PATRUUS MAGNUS, the brother of one's grandfather (grand-uncle).
• PROAMITA, the sister of one's grandfather (grand-aunt).
• PATRUUS, the brother of one's father (paternal uncle).
• AMITA, the sister of one's father (paternal aunt).
• PATRUELES, the children of brothers on the father's side (paternal first cousins).

• PROAVUNCULUS, the brother of one's great-grandmother (great-uncle).
• PROMATERTERA, the sister of one's great-grandmother (great-aunt).
• AVUNCULUS MAGNUS, the brother of one's grandmother (maternal grand-uncle).
• MATERTERA MAGNA, the sister of one's grandmother (maternal grand-aunt).
• AVUNCULUS, the brother of one's mother (maternal uncle).
• MATERTERA, the sister of one's mother (maternal aunt).
• CONSOBRINI, the children of brothers on the mother's side (maternal first cousins).
• AMITINI, the children of brothers (first cousins).
• SOBRINI, their children (children of first cousins).
• NEPOTES, the children of brothers (nephews).
• PRONEPOTES, their children (great-nephews).

The consanguinity tree exhibits the following persons and canonical degrees from the person marked N:

Spiritual relationship is a certain proximity which, from the statute of the Church, arises from the administration and reception of Baptism and Confirmation between certain persons determined in Canon law.

805. Principles. - I. Spiritual relationship invalidates matrimony by ecclesiastical law: first, between the minister of the Sacrament and the subject and the latter's parents; second, between the godfather or godmother and the goddaughter or godson and their parents. Thus from the Council of Trent, session 24, chapter 2, On Reformation.

II. Several conditions are required for sponsors to contract spiritual relationship, namely: first, that they are baptized ⁵, for otherwise they are not subject to the Church; second, that they have the use of reason, because otherwise they are not capable of the office of sponsor; third, that they were designated by the parents, or even by the Pastor in their place or in their absence ⁶; fourth, that the Baptism was valid ⁷.

⁵ For contracting the relationship, Baptism is a necessary condition as regards all. Therefore, if either the one baptizing or the parents of the baptized child are infidels, even catechumens, the relationship is not contracted by them. Consequently, both a faithful person who baptized the child of an infidel and one who received that child from the sacred font could contract matrimony, not indeed with the baptized child, but with the child's parents after they had been converted to the faith. Schmalzgrueber, book 4, title 11, nos. 62-65.

It is certain, however, that this relationship is contracted even by a heretic, whether the heretic baptizes, or holds the child at the sacred font, or another baptized person, whether heretic or Catholic, either baptizes or holds the heretic's child. The reason is that whoever has the baptismal character is capable of this relationship and is subject to the laws of the Church. Sanchez, book 7, disputation 60, no. 2; Pirhing, book 4, title 11, no. 40. Moreover, the decrees of the Sacred Congregations are already known by which it is forbidden either that a Catholic lift the children of heretics in Baptism or that a heretic be admitted to this office in the Baptism of a Catholic.

⁶ It is not actually necessary that someone be designated by the parents or by the Pastor; rather, it suffices that one who presents himself be admitted. See St. Alphonsus, book 6, no. 154, and the Declaration of the Sacred Congregation in Gallemart's note to chapter 2, session 24 of the Council of Trent, no. 7, or in Rebellus at the end of book 4, part 2, section 4, no. 95. It is generally necessary, however, that someone not merely assist materially and hold the infant, but have the intention or purpose of receiving the child or exercising the office of sponsor. Nevertheless, it is not further required that the sponsor have the intention of contracting spiritual relationship, because this is a consequence in no way dependent upon the sponsor's will, but upon the statute of the Church, and therefore it is contracted even by one ignorant of it. Schmalzgrueber, book 4, title 11, no. 66.

⁷ Namely, if Baptism, which is the principal thing, does not subsist, neither can the accessory, namely, the relationship, subsist. Hence argue that if Baptism is conferred again conditionally and it is afterward discovered that the infant had previously been validly baptized, no relationship will be present. But so long as this is not established, the Church presumes the relationship. Understand this, however, when a true doubt is present, which St. Alphonsus (book 6, no. 151) calls a negative doubt, namely, when no solid reason favors the validity of the prior Baptism; for if the doubt is positive, namely, if probability is present on either side, anyone can resolve the doubt as he pleases, and, as St. Alphonsus has it, l.c., matrimony can be contracted as though no impediment existed, because no certain impediment is present.

The same must be said in two other cases, namely: first, if someone through error holds one infant for another; second, if someone holds an infant in private Baptism. For since in each case the Doctors disagree - see St. Alphonsus, book 6, nos. 149 and 151 - it must finally be admitted that the matter is doubtful. But if the relationship is doubtful, the impediment also will be doubtful; and a doubtful impediment, as St. Alphonsus himself observes, no. 151, is not an impediment of matrimony.

806. Resolutions. - 1. A godfather and godmother can enter matrimony with each other, but not with the father or mother of the baptized person.

2. Those who exercise the office of godfather and godmother when the solemnities of Baptism are supplied do not contract spiritual relationship, nor do those who receive the baptized person from the sacred font merely in the name of another ⁸.

⁸ The latter point is confirmed by decrees of the Sacred Congregation, one of which Barbosa reports (Collection of Apostolic Decisions 177, no. 9), and two others Benedict XIV reports (Canonical Question 227). From another declaration of the Sacred Congregation, which Gallemart reports in the note to chapter 2, session 24 of the Council of Trent, no. 4, a man can exercise the office of proxy for a woman and conversely; in this case it is not forbidden that two men or two women actually lift the child from the sacred font.

3. Sponsors designated by the parents and unjustly rejected by the Pastor contract true spiritual relationship if they actually hold the infant; it is otherwise if they are justly rejected by the Pastor ⁹. - St. Ligorius, no. 154.

⁹ Although the Council of Trent, session 24, chapter 2, On the Reformation of Matrimony, decreed that only one person, either a man or a woman, or at most one man and one woman, should receive the baptized person from Baptism, nevertheless, it is established from the Declaration of the Sacred Congregation in the case of Aix, March 10, 1631 - Barbosa reports it in Collection of Apostolic Decisions 177, no. 10 - that this decree is not invalidating, provided that the third or fourth person was also designated, who will therefore contract the relationship.

4. A man who baptized a girl privately in a case of necessity can marry neither her nor her mother ¹⁰. - Thus commonly. - St. Ligorius, On Baptism, no. 149.

¹⁰ The same must evidently be said of a woman who privately baptized a little boy.

5. More probably, however, sponsors employed in private Baptism do not appear to contract this relationship. The reason is that in the Council of Trent there is question only of those sponsors who are employed in solemn Baptism, since none are required for private Baptism. - Thus more commonly with St. Ligorius, no. 149.

6. Sponsors do not appear to contract spiritual relationship unless they physically touch the baptized person, because otherwise they are not judged properly to receive that person from the sacred font ¹¹; for all the texts of Canon law by which spiritual relationship is established are expressed by these words: one who receives, holds, lifts, touches, etc. - St. Ligorius, no. 148, and others commonly.

¹¹ It is required that while the person is baptized, the sponsor so touch the baptized person that it can be said that the sponsor received, accepted, held, lifted, etc., that person in or from the sacred font. Or, if the custom is that the Priest holds the infant while the child is baptized, the sponsor must either present the infant to be baptized to the Priest or immediately receive the infant from the Priest's hand. Hence it would not suffice that the godmother mediately receive the child from the godfather, or conversely; nor would even a momentary touch of a finger or hand suffice, because this would not be to lift or hold, etc. It is not necessary, however, that the sponsor also answer for the infant, because this answering pertains to the sponsor of catechism, concerning whom something was said above in the note to no. 776. Schmalzgrueber, book 4, title 11, nos. 38-39.

7. Parents baptizing their children in necessity or in good faith contract no spiritual relationship by which they would be prohibited from the use of matrimony; for this prohibition has the nature of a penalty, which is not incurred without fault. - St. Ligorius, no. 150. - Indeed, more probably they do not appear to contract the relationship even if deliberately, apart from necessity, they baptized their child ¹². - St. Ligorius, ibid.

¹² Since the matter is at least doubtful, the principle prevails that in a doubtful matter a certain right cannot be taken away from a spouse. Therefore it must be denied that through this an impediment is placed upon the use of matrimony. Schmalzgrueber, book 4, title 11, nos. 46-49.

807. • Legal relationship is the proximity of persons which arises from legal adoption. A twofold adoption is distinguished:

1. Perfect adoption, by which a person sui iuris, through legal form ¹³, passes into the power and family of the adopter and acquires all the rights of a legitimate child.

¹³ Perfect adoption, which is also called arrogation, requires a rescript of the Prince; but for imperfect adoption, which is called simple, the authority of any competent judge suffices. See Schmalzgrueber, book 4, title 12, no. 3.

2. Imperfect adoption, by which an outside person who is not sui iuris is assumed as a child or grandchild, but does not pass into the family and power of the adopter and therefore does not become the latter's necessary heir by testament, although the person succeeds to the adopter intestate ¹⁴.

¹⁴ On the contrary, through perfect adoption or arrogation, the adopted person becomes a necessary heir by testament to a fourth part of the goods. Schmalzgrueber, book 4, title 12, no. 3.

I. Legal relationship or adoption constitutes a diriment impediment by ecclesiastical law, although it was previously established in Roman law ¹⁵. This is gathered from the Response of Nicholas I to the Bulgarians, etc.

¹⁵ This relationship invalidates matrimony by ecclesiastical law insofar as Roman civil laws, through which this impediment was first introduced, were approved by ecclesiastical law.

II. Legal relationship, after the likeness of natural relationship, invalidates matrimony by Roman law between the following persons:

1. As though in the direct line, between the adopter and the adopted person and the latter's children while they are constituted under paternal power; second, between the adopted person and the children of the adopter, as though in the collateral line, while the latter's children remain under paternal power; third, between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, as though in the direct line by way of affinity, as is established from the Declaration of the Sacred Congregation in Hortana, September 26, 1734 ¹⁶.

¹⁶ These relationships, and consequently also the impediment arising from them, differ among themselves in that the first and the last are perpetual. Therefore the adopter, for example, cannot marry an adopted daughter or granddaughter even if the adoption has been dissolved by emancipation; nor can a stepson or daughter-in-law - understand, adoptive - be joined in matrimony with a stepmother or father-in-law, although the adoption has ceased either by emancipation or by the death of the adopter. A dispensation of the Apostolic See would therefore be required, which, however, is granted with the greatest difficulty even in the latter case. The second relationship in the collateral line endures only so long as the adoption endures. See Schmalzgrueber, book 4, title 12, no. 26 and following, and St. Alphonsus, book 6, no. 1027, note 2. Adoption is dissolved in six ways according to Roman law: first, by the natural death of the adopter; second, by the civil death of the same; third, because of incestuous nuptials; fourth, because of a dignity, for example, the episcopal dignity; fifth, by sentence; sixth, by emancipation. Schmalzgrueber, ibid., no. 10.

808. Questions. - QUESTION 1. Does legal relationship invalidate matrimony through the fourth degree between the adopter and the descendants of the adopted person, or conversely?

Reply 1. It is certainly restricted to the first degree as regards the adopted person and the descendants of the adopter. This is established from Canon law.

Reply 2. It is disputed as regards the adopter and the descendants of the adopted person. Probably the relationship does not extend beyond the first degree, or beyond the adopted person, unless the adopted person has descendants constituted under his power ¹⁷, for nothing opposed to this decision is found in law. - St. Ligorius, no. 1027.

¹⁷ You have a sufficiently clear rule if, with the more common opinion of Sanchez (book 7, disputation 63, no. 34), you establish that according to Roman law the impediment extends to those who, together with the adopted head of a family, pass into the power of the adopter.

The persons between whom matrimony can exist while the adoption remains can be indicated more easily. Thus, while the adoption endures, matrimony can exist: first, between the adopter and the mother of the adopted person. St. Thomas, In IV Sentences, distinction 42, question 1, article 2, reply to objection 5. Second, between the adopter and the daughter of an adopted woman, because the latter is not under the power of her mother and therefore does not pass into the power of the adopter. Third, between the adopter and an illegitimate daughter of the adopted person, because illegitimate children are not under the power of the father and therefore in the case the adopted person's daughter does not pass into the power of the adopter. Fourth, for the same cause, matrimony can exist between an illegitimate son of the adopter and the latter's adopted daughter. Fifth, between the son and daughter of two adoptive brothers, because these are bound to one another by no bond of relationship. Sixth, finally, between two adopted persons of one adopter, for this is forbidden by no law. Schmalzgrueber, book 4, title 12, no. 31 and following.

809. • QUESTION 2. Does imperfect adoption invalidate matrimony?

Reply. More probably, no, with St. Ligorius, no. 1027, and others more commonly. The reason is that perfect adoption alone must be considered adoption properly so called ¹⁸.

¹⁸ See in Schmalzgrueber, book 4, title 12, nos. 18-22, the reasons on account of which the Doctors commonly establish that the impediment arises from perfect adoption alone. He further observes with the common opinion of the Doctors that from simple or imperfect adoption there arises not only no diriment impediment, but not even an impeding impediment. Moreover, since Canon law introduced this impediment only through approval of Roman law concerning this matter, the Apostolic See alone can define with certain judgment the question whether this canonical impediment is incurred when in the civil code of various nations the nature of legal relationship differs more or less from arrogation or perfect adoption in Roman law. For until a definition of this kind is awaited, private Doctors, adhering to the general principles that matrimony is a thing very favorable and that therefore laws prohibiting and invalidating matrimony, whenever their sense is ambiguous, ought rather to be restricted, according to the fifteenth Rule of Law in the Sixth, than extended, will establish that more recent civil laws concerning legal relationship and the resulting obstacle to marriage are more readily to be interpreted of that simple adoption according to Roman law which produces no canonical impediment.

In France, moreover, perfect adoption does not appear to have force, since according to article 348 of the Civil Code the adopted person remains under his own right. For it is thus established: The adopted person shall remain in his natural family and shall retain all his rights there. Hence it is disputed whether this adoption constitutes a diriment impediment. Carriere, Bouvier, etc., affirm it. But not a few others deny it, more probably as it appears.

And the opinion of the latter appears to be confirmed by this Decision of the Holy Office: In the province of Bulgaria it is the custom that heads of families sometimes adopt for themselves as children, but without any solemnity of law, certain boys and girls. Persons adopted in this manner are commonly regarded among Catholics living there as legitimate children, so that they even succeed to the inheritance. The Reverend Lord Joseph Roveramus, missionary,... humbly petitioned the Sacred Congregation for the Propagation of the Faith that it deign to declare whether such an adoption produced an impediment of legal relationship. The same Sacred Congregation remitted the petition to the Sacred Congregation of the Holy Office. Then, in the General Congregation held before Our Most Holy Lord on Thursday, April 16, 1761, His Holiness... declared that in the aforesaid case no impediment existed. Ferraris, For Matrimony, article 2, addition from the most recent Roman edition.

But the case of France appears altogether similar to the aforesaid case.

Several, in order to establish a diriment impediment, rely upon the reply of the Sacred Penitentiary to Lord Lasserre, Vicar General of Perigueux. But that reply by no means decides the matter. For the petitioner had asked thus: Since in the same kingdom of France the law of adoption is now legally received, it is asked whether the canonical diriment impediment of adoption ought also to have place. Reply: Affirmatively, if there is question of an adoption legitimately entered. But the petitioner did not propose what kind of adoption was at issue. Moreover, imperfect adoption, as it has place in law, is not called adoption simply, but arrogation ¹⁹.

¹⁹ This reason, if it could of itself have any weight, would rather support the opposite opinion, since arrogation indicates perfect adoption, which induces an impediment.