Point IV. On the Impediment of Affinity

810. • Affinity is the relationship which one contracts with the blood relatives of a person with whom one has carnal intercourse; or, it is the relationship arising from carnal intercourse between one person and the blood relatives of the other. Hence affinity arises between the man and the blood relatives of the woman, and conversely.

Hence:

1. Affinity arises both from licit intercourse, that is, conjugal intercourse, and from illicit intercourse, namely, from fornication, adultery, incest, etc.

2. Affinity can also be contracted between the spouses themselves if either has intercourse with one of the other's blood relatives.

811. Principles. - I. Affinity from licit intercourse invalidates matrimony through the fourth degree inclusively ¹; but that from illicit intercourse only through the second degree inclusively. This is established from the Fourth Lateran Council and from the Council of Trent, session 24, chapter 4.

¹ The Doctors observe that this decree is to be understood of the collateral line, but is not restricted to the fourth degree if there is question of the direct line. This observation, however, contributes nothing to practice, because matrimony between persons related by affinity in the fifth or sixth degree in the direct line is scarcely probable, when the highest prosperity presented in Sacred Scripture is that of one who sees the fourth generation.

II. Affinity is not contracted except through perfect and consummated intercourse, or such that generation can follow from it of itself; because otherwise the man and woman do not strictly become one flesh ². - St. Ligorius, no. 1075.

² The Doctors agree unanimously in denying affinity if the woman alone has emitted seed; they do not agree if the man alone has done so. Concerning this controversy St. Alphonsus (book 6, no. 1075) concludes that each opposed opinion is probable; and it is certain that St. Thomas stands with those who require an act perfect on both sides. Therefore, since there is question of an impediment, according to the general principle it would have to be decided that the matter is doubtful, and consequently that the impediment is not present.

As regards practice, however, the rules which St. Alphonsus also has (l.c.) ought to prevail, namely: 1. when the intercourse is established, in the external forum there is always a presumption in favor of the impediment having been contracted; 2. the same is presumed even in the internal forum when the contrary is not established, because judgment is prudently made from things that commonly occur, especially if the woman admits that she experienced a great sensation of pleasure, even though she did not notice a seminal emission; 3. if it is certainly established that in fact emission did not occur on either side, in the forum of conscience a judgment in favor of the impediment cannot be rendered. Schmalzgrueber, book 4, title 14, nos. 71-73.

III. Affinity contracted between spouses cannot invalidate their matrimony, since it supervenes upon that matrimony already indissolubly contracted; nevertheless, it impedes its use as a punishment of the adulterous or incestuous spouse. This is established from several passages of Canon law, especially from the chapter Si quis, On One Who Has Known, etc. But this affinity, inasmuch as it is from illicit intercourse, by force of the decree of the Council of Trent, session 24, chapter 4, On the Reformation of Matrimony, is not contracted except from intercourse with the blood relatives of the other spouse in the first and second degrees. This is confirmed from an express Declaration of Gregory XIII reported by St. Ligorius, no. 1070.

812. Rules. - 1. Persons who are carnally joined are not properly related by affinity to each other, but are the source of affinity and occupy, as it were, the place of the stock.

2. Affinity cannot exist between two persons neither of whom has had intercourse with a blood relative of the other; therefore the blood relatives of one spouse have no affinity with the blood relatives of the other.

3. Two brothers can marry two sisters; a father and son can marry a mother and daughter; indeed, the son can marry the mother and the father her daughter. Hence the axiom: Affinity does not beget affinity ³.

³ Formerly affinity begot affinity; hence a threefold kind of affinity prevailed and indeed invalidated matrimony. Innocent III abolished affinities of the second and third kinds in the Lateran Council. See canon Non debet 8, On Consanguinity and Affinity. What these affinities were and how they arose, see Schmalzgrueber, book 4, title 14, nos. 74-75.

4. The degrees of affinity are computed in the same manner as the degrees of consanguinity; indeed, affinity has no degrees of itself, but only by reason of consanguinity. Therefore, whatever the degree of consanguinity is with one person, such is the degree of affinity with the other.

5. One who has sinned with two sisters, or with first cousins, or with a mother and daughter, can marry none of them.

6. A man who has sinned with the sister, first cousin, or paternal aunt of his spouse is bound to render the debt when his spouse asks, although he himself cannot ask it. The reason is that, since there is question of a merely prohibiting law, the innocent person ought not to suffer from the fault of the guilty person.

7. One who sins with his own blood relatives is not deprived of the right to ask the debt, because he thereby contracts no affinity with his wife.

8. If each spouse has contracted affinity with the other through incest, neither can ask the debt, because each has lost his or her right; and therefore neither is bound, indeed neither can render the debt to the other. - St. Ligorius, no. 1069 and following.

813. Questions. - QUESTION 1. By what law does affinity invalidate matrimony?

Reply 1. According to the certain opinion of all, it invalidates by the law of the Church alone in the collateral line, and much more probably also in the direct line, if perhaps you except the first degree.

Reply 2. It is disputed as regards the first degree of the direct line ⁴. Nevertheless, although repeatedly and earnestly petitioned, the Church has never wished to dispense if the affinity arises from legitimate matrimony, as Benedict XIV also

⁴ Several theologians and canonists of great name who universally denied that matrimony with one related by affinity in the first degree of the direct line is invalid by the law of nature are cited by Schmalzgrueber (book 4, title 14, no. 103), who calls this opinion the more probable.

2. The lines drawn from one center to the opposite degrees exhibit the affinity of one spouse with the blood relatives of the other, and conversely.

The printed diagram places the man (VIR) and woman (MULIER) at its center. From each, direct lines ascend through degrees 1, 2, 3, and 4 to the other's blood relatives in the ascending line, and descend through degrees 1, 2, 3, and 4 to the other's blood relatives in the descending line. The crossed lines exhibit the man's affinity with the woman's blood relatives and the woman's affinity with the man's blood relatives.

NOTE. 1. This table presents the blood relatives of the man and woman in the direct line through the fourth degree. You will easily add the collateral lines, for example, brothers, first cousins, etc. testifies (On the Diocesan Synod, book 1, chapter 9), although it has not rarely dispensed in an affinity of this kind arising from illicit intercourse ⁵, for example, if someone should marry a wife after he has fornicated with her daughter or mother ⁶.

⁵ The reason for this difference of practice is manifest; for affinity from fornicarious intercourse is not as perfect as that proceeding from legitimate and consummated matrimony, as Lugo observes with others (Moral Responses, book 1, doubt 40, no. 29), since in the former there is only a union of bodies, while in the latter there is also a partnership in a common life, as St. Thomas notes (In IV Sentences, distinction 41, question 1, article 1, minor question 3); but matrimony, as St. Thomas adds (l.c., minor question 4, reply to objection 2), causes affinity not only by reason of carnal intercourse, but also by reason of conjugal partnership, according to which matrimony is also natural.

Nevertheless, since very grave Doctors, as was said in the preceding note, deny that matrimony with a person so related by affinity is invalid by the law of nature, therefore, if two unbelievers who had contracted such a matrimony came to the faith, it would not be safe to separate them without a dispensation of the Pontiff, unless perhaps such marriages are invalidated among unbelievers by positive law. This is readily admitted, because, as the Doctors acknowledge, marriages of this kind were held to be shameful and abominable even among the Gentiles. See Schmalzgrueber, book 4, title 14, nos. 101-105.

Nevertheless, as Lugo observes (l.c.), since affinity from matrimony, whether or not it is a diriment impediment by the law of nature, is most certainly natural affinity, a person after Baptism could not therefore contract with the daughter or mother of the wife whom he had legitimately had during the time of his unbelief. Indeed, from the final chapter On Divorces, the Doctors extend this even to persons related by affinity in the fourth degree. The reason is that, since affinity from legitimate matrimony is, according to what has been said, a natural bond - see also St. Thomas, In IV Sentences, distinction 41, question 1, article 1, minor question 1 - it arises even among unbelievers and remains even after Baptism; but after Baptism they are now subject to the law of the Church invalidating marriages through the fourth degree. See Schmalzgrueber, l.c., nos. 86-89.

Indeed, according to those Doctors who teach with St. Thomas (l.c., minor questions 3 and 4) that this natural bond of affinity also arises from illicit intercourse, since according to Paul they then also become one flesh, it would further have to be said that if someone during the time of unbelief carnally knew a woman through fornication, after Baptism he could not marry her mother, daughter, or sister, because he contracted affinity with them. Although this affinity did not obstruct his matrimony while he was an unbeliever and was not bound by the laws of the Church, nevertheless, since it perseveres after Baptism, it also assumes the character of an impediment. Schmalzgrueber, l.c., nos. 86-89. But since Sanchez (book 7, disputation 65, no. 9), and with him Cardinal de Lugo (l.c.), Gonzalez, Navarrus, and others deny this natural affinity from illicit intercourse, this would be a doubtful impediment.

⁶ When there is question of one who wishes to marry a daughter after he has fornicated with her mother, the condition is usually added in the dispensation, provided that intercourse with the mother did not precede the birth of the daughter, namely, so that the danger that someone might marry his own daughter may be guarded against. But the condition can be considered sufficiently fulfilled if intercourse with the mother preceded at such a time that this danger is entirely absent.

814. • QUESTION 2. Who are the various relatives by affinity?

Reply. They are the following:

• SOCER, a father by reason of affinity, whether of the married man or of the married woman (beau-pere).
• SOCRUS, a mother by affinity, as above (belle-mere).
• PROSOCER, a grandfather by affinity (aieul par affinite).
• PROSOCRUS, a grandmother by affinity (aieule par affinite). - GENER, the husband of a daughter (gendre).
• NURUS, the wife of a son (bru, belle-fille).
• PROGENER, the husband of a granddaughter (mari de la petite-fille).
• PRONURUS, the wife of a grandson (femme du petit-fils).
• LEVIR, the brother of a husband or wife (beau-frere).
• GLOS, the sister of a husband (belle-soeur).
• FRATRIA, the wife of a brother (belle-soeur).
• SORORUS, the husband of a sister (beau-frere).
• VITRICUS, the husband of one's mother (beau-pere).
• PRIVIGNUS, a son from the first matrimony of one's father or mother (beau-fils).
• NOVERCA, the wife of one's father (belle-mere, maratre).

815. • QUESTION 3. Does affinity from a consummated but invalid matrimony invalidate matrimony through the fourth degree, or only through the second?

Reply 1. By reason of affinity it invalidates only through the second degree, because there is no affinity from legitimate matrimony.

Reply 2. By reason of public propriety, however, it appears to invalidate through the fourth degree, because matrimony, even when invalid, invalidates through the fourth degree by force of public propriety. - See what is soon to be said, no. 818.

QUESTION 4. Has a wife who has been carnally known by a blood relative of her husband through force or fear lost the right to ask the debt?

Reply 1. No, if the force was absolute; for that impediment to asking the debt in the case of incestuous spouses has only the character of a penalty, but no penalty can exist where there is no fault. - Thus all.

Reply 2. No, even when the wife who suffered force or fear did not sin gravely, because a grave penalty bears no proportion to a light fault.

Reply 3. Indeed, more probably it appears that the answer must also be no if that wife sinned gravely, because grave fear excuses from human laws, even though it cannot excuse from the natural law. Therefore, since in our case it excuses from the law insofar as the law is ecclesiastical, it ought also to excuse from the penalty inflicted by that law ⁷. - Thus more commonly with St. Ligorius, no. 1071, against some.

⁷ Schmalzgrueber (book 5, title 39, no. 79) gives the reason more suitably when he says that one who has violated an ecclesiastical law because of grave fear is excused partly because one who sins thus cannot be regarded as contumacious and a despiser of ecclesiastical power, since he sins from the infirmity of nature rather than from the malice of an obstinate will; and partly because fear of this kind generally excuses from the observance of ecclesiastical law. From these things it is apparent that the reason adduced by the Author after St. Alphonsus and others does not always hold, and therefore another must be adopted, namely, the absence of contumacy; so that, even as regards ecclesiastical law, it must be established that it sometimes happens that one is excused from the penalty by reason of fear, although he is not totally free from fault.