point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point V. On the Impediment of Public Propriety
- Public propriety is a relationship or a certain quasi-affinity which arises through a union, not of bodies, but of minds, both from betrothals between one betrothed person and the blood relatives of the other, and from ratified matrimony between one spouse and the blood relatives of the other spouse. By ecclesiastical law it invalidates matrimony.
Rules
- Public propriety arising from valid betrothals, according to the new law of the Council of Trent, session 24, On the Reformation of Matrimony, chapter 3, invalidates matrimony only through the first degree 1.
1 Namely, under the more ancient law, betrothals both de futuro and de praesenti invalidated matrimony through the fourth degree, and this even if they were invalid, provided that they were not invalid from a defect of consent. But the Council of Trent decreed thus (l.c.): The Holy Synod wholly abolishes the impediment of public propriety where the betrothals will not be valid for any reason whatsoever; but where they will be valid, let them not exceed the first degree.
- Public propriety arising from ratified matrimony invalidates matrimony through the fourth degree inclusively. This is proved from several passages of Canon law 2.
2 In fact, no text of Canon law is adduced to establish that the impediment of public propriety arises from ratified matrimony; and therefore the Doctors conclude that this is gathered by an argument a fortiori. For, as they say, the bond arising from ratified matrimony is stronger than that which arises from betrothals de futuro. Therefore it was equitable that, if an impediment is introduced by the latter, it should also be introduced by the former. But true affinity is not introduced by ratified matrimony, as is evident both from canon Lex 18, cause 27, question 2; from the Declaration of St. Pius V in the constitution Ad Romanum, July 1, 1568; and from the resolution of the Sacred Congregation in Valentina, 1607, reported by Benedict XIV (Canonical Question 291). Therefore it introduces at least the impediment of public propriety.
- Questions. - QUESTION 1. Does public propriety arise from conditional betrothals, or from betrothals dissolved by mutual consent or for any just cause?
Reply to the first. No, unless the condition has been fulfilled, because when the condition has not been fulfilled true betrothals do not exist 3. - St. Ligorius, no. 1061.
3 You have this defined in the sole chapter, section 1, On Betrothals, in the Sixth: Since no public propriety arises from conditional betrothals before the condition exists, just as none arises from betrothals lacking consent and from uncertain betrothals, etc. That the impediment arises by that very fact after fulfillment of the condition, even without a renewal of consent, is gathered by an argument from the contrary. Schmalzgrueber, book 4, title 1, no. 108.
Reply to the second. Yes. The reason is that the impediment is contracted immediately after valid betrothals have been entered, and an impediment once introduced cannot be removed by the will of the betrothed persons or by another cause supervening upon them. Thus from a Declaration of the Sacred Congregation reported by St. Ligorius, no. 1063 4.
4 See Fagnanus on chapter Ad audientiam, no. 29, and Benedict XIV, Canonical Question 291.
- QUESTION 2. Does public propriety arise from private betrothals?
Reply. Yes. The reason is that the Church admits no distinction between private and public betrothals.
QUESTION 3. Does public propriety arise from an invalid matrimony?
Reply. Yes, because before the Council of Trent propriety arose from a matrimony of this kind. But the Council changed nothing concerning this, although it restricted the ancient law concerning betrothals de futuro 5.
5 Thus St. Pius V declared in the constitution Ad Romanum, July 1, 1568, in these words: We, therefore... attending to the fact that under the designation of betrothals, which the said Council of Trent uses, matrimony contracted by words of the present is contained only improperly,... therefore... declare and define that the Decree of the Council of this kind is to be understood altogether and to proceed only in betrothals de futuro, but not in matrimony contracted as aforesaid; rather, in it the impediment still endures in all those cases and degrees in which it had been introduced by the ancient law before the aforesaid Decree of the Council.
Except, first, if the invalidity arises from a defect of consent. Thus from Canon law. Hence the impediment of public propriety is not present if the matrimony was contracted either through error, or through fear, or with fictitious consent. - See St. Ligorius, no. 1062.
Except, second, if the invalidity comes from a prior impediment of public propriety arising from validly contracted betrothals 6; for in this case an impediment is not introduced to the prejudice of the prior betrothals. - St. Ligorius, no. 1064. - Hence if Titius, for example, after entering betrothals with Berta and abandoning her, marries her sister, he can, indeed must, return to the first woman; nor does he need a dispensation unless he consummated the matrimony.
6 This is what is commonly meant when it is said that this impediment is not retroactive. Concerning this matter you have the express definition of Boniface VIII in the sole chapter On Betrothals, in the Sixth.
- QUESTION 4. Does public propriety arise from civil matrimony?
Reply. It appears that it must be affirmed, whether the contracting parties intend afterward to contract before the Church or not; for in the first case it is considered a betrothal contract, and in the second it is considered a clandestine matrimony, which, although invalid, according to what has been said invalidates matrimony through the fourth degree 7. - See St. Ligorius, no. 1064.
7 Elsewhere we have already observed, above in the note to no. 730, that it can scarcely happen that those who approach the magistrate to contract civil matrimony did not first agree concerning it. If indeed they agreed with each other to contract matrimony before the Church, betrothals had therefore already preceded from that time. But if this intention was lacking, not only had no betrothals preceded, which are a promise of matrimony and not of a concubinary union, but neither, according to the more solid opinion, do you have in the acts performed before the magistrate an invalid matrimony of this kind which would introduce the impediment of public propriety. See Appendix III at the end of this volume after page 1078.