Appendix: The Marriage Impediments Under the New Code of Canon Law

According to the laws of most of our States, marriage is nothing but a legal contract. As such the State prescribes for it the conditions under which it shall be valid or invalid. In many States marriages between close relatives, or marriages between white people and negroes, are null and void. In other words the States set up impediments to the marriage contract.

The Catholic Church also recognizes in marriage a contract, but a contract elevated to the dignity of a Sacrament; and because marriage is a Sacrament, the Church alone, under whose jurisdiction Christ placed all the Sacraments, has the power to make rules and regulations with regard to this sacred contract, and to set up impediments which render it unlawful or invalid also as a Sacrament.

Some of these impediments, however, have been changed or modified in the course of centuries, as the needs of the time demanded. Especially is this the case in the new Code of Church laws promulgated by our Holy Father Benedict XV, in 1917, and of binding force since Whitsunday, 1918. In Canons 1036-1058, which form Chapter II of the section on the Sacrament of Matrimony, "Of the Impediments of Matrimony in General," these impediments are laid down with great clearness.

First of all they are divided into (i) forbidding, (2) nullifying, (3) public, (4) occult, (5) impediments of minor and (6) of major grade. The four last divisions are made principally to facilitate dispensations, and this treatise will not suffer if we disregard them entirely. But we must say a few words about the forbidding and nullifying impediments as modified by the new Code.

I. FORBIDDING IMPEDIMENTS. —Forbidding impediments (impedimenta impedientia) are those which interdict a marriage under pain of mortal sin, yet do not render it invalid if it is contracted in spite of the prohibition. The state of mortal sin or excommunication prohibits marriage, though this is usually not counted as a forbidding impediment. The forbidding impediments in the strict sense are:

1. The prohibition of the Church, viz., if the Pope for the whole Church, or the bishop for his diocese interdicts an intended marriage for grave reasons. Such reasons would be, for instance: (a) Grave suspicion that impediments exist to the proposed marriage; (b) Fear that the marriage will cause great trouble; (c) Refusal of parents to give their consent to the marriage of their children, etc.

The Church also forbids (α) Marriage between a Catholic and a non-Catholic; and (β) Marrying without the publication of the banns.

2. Solemn marriages are forbidden from the first Sunday of Advent, inclusive, till the day after Christmas, exclusive, and from Ash Wednesday, inclusive, till the Monday after Easter, exclusive. During this time marriages may take place, but without the solemn blessing of the bride, except by special permission of the Ordinary.

3. A simple vow of virginity, of perfect chastity, of not marrying, of receiving sacred orders, or of embracing the religious state, also hinders marriage (can. 1058, § 1), and a man (or woman) who would marry while bound by such a vow would commit a mortal sin, unless he had the firm will to keep his vow in the married state, —which would, however, be deceiving the other party, or unless both parties consent to respect the vow during the marriage, —which can hardly be allowed to them on account of human frailty.

4. Another and a new prohibitive impediment set up by the Code (canon 1059) is legal relationship arising from adoption in countries in which the civil law renders such marriages unlawful. Accordingly, a boy who is legally adopted by a family cannot marry the daughter of the couple who adopted him in places where the civil law forbids it.

5. The main prohibitive impediment under the new Code is that called mixed religion. It interdicts marriage between Catholics and baptized heretics or schismatics. Canon 1060 " most severely " forbids such marriages, and adds that “if there is danger that the Catholic party, or a child born of the union, may lose the faith, the marriage is forbidden also by divine law."

Canon 1061 states the conditions under which the Church grants a dispensation for a mixed marriage, viz.: (a) For just and grave reasons; (b) Upon a written guarantee that the non-Catholic party will not interfere with the religion of the Catholic spouse, and that all children born to them will be baptized and brought up in the Catholic faith; (c) Upon the morally certain assurance that these conditions will be fulfilled.

Canon 1062 adds that "the Catholic party is obliged prudently to try to convert the non-Catholic party."

Canon 1063 warns the parties to such a mixed mar- riage not to attempt, either before or after the ceremony in the Catholic Church, to have the marriage blessed by a Protestant minister.

Canon 1065 (§ 1) exhorts the faithful not to marry persons who have publicly given up the faith, or joined a condemned society, and (§2) forbids pastors to assist at such marriages without grave reasons and the permission of the bishop. Lastly, canon 1066 commands pastors not to assist at the marriage of public sinners if they refuse to go to Confession, unless for a grave cause, concerning which they should, if possible, consult the Ordinary.

Apart from the dispensation, other circumstances may exist which may render the marriage decidedly inadvisable, or, it may be, even sinful.

2. NULLIFYING OR DIRIMENT IMPEDIMENTS. —As the word itself implies, diriment impediments (impedimenta dirimentia) are such as not merely forbid a marriage but render it invalid. There are sixteen such diriment or nullifying impediments.

I. A substantial error with regard to a marriage is usually quoted by moralists as the first diriment impediment. It would exist, for instance, if a man, instead of marrying the woman of his choice, would by mistake marry another; or if he were to make an explicit condition (i. e., conditio sine qua non) to marry only a rich person, or one of noble birth or well educated, whereas the one actually married proved to be the contrary. If such a condition is not expressly mentioned, however, or if the error concerns only accidental qualities, the marriage is valid. Note that it is not allowed, under pain of mortal sin, to marry with any condition like those mentioned. For marriage, which God wants to be indissoluble, is not to be rendered soluble for frivolous reasons.

2. Slavery is given in Moral Theology as the second diriment impediment. It makes a marriage between a slave and a free person, who is ignorant of the condition of the other party, impossible. Whilst an error about the qualities or conditions of a person does not nullify a marriage, as stated above, the Church has wisely made an exception in setting up this impediment, because a slave is subject entirely and in all things to the will of his master, which is adverse to the marriage rights of a free man. Now-a-days slavery is practically abolished nearly everywhere, and hence this impediment hardly counts.

3. Grave fear, through which a person is unjustly forced to marry, is another impediment which nullifies marriage. Marriage is of such importance that it requires full liberty of action.

4. A person must also be of proper age in order to be able to contract a valid marriage. The age limit has been changed by Canon 1067 of the new Code, according to which (§ 1) males cannot validly marry before they have completed their sixteenth and females their fourteenth year. The same canon (§ 2) exhorts pastors to deter young people from getting married until they have reached the age usual in their country.

5. Another diriment impediment is mentioned in Canon 1068, viz., impotence, if it precedes marriage and is permanent, whether it be known to the other party or not, or whether it renders the other unable to cohabit properly with anybody or only with the intended spouse. If there is any doubt about the existence of this impediment the marriage is not to be hindered. Neither does sterility prevent marriage according to the same Canon.

6. Canon 1069 insists on the natural law impediment called " ligamen " or bond of a previous marriage, which renders invalid any attempted marriage during the lifetime of a married couple, even if their marriage was never consummated. The only exception is the so-called " Pauline privilege." St. Paul allows the Catholic party to marry again if the non-baptized or non-Christian party refuses to live in peace with the former. " For," as the Apostle says, " a brother or sister is not under servitude in such cases." * Even in case the former marriage has been found invalid or has been annulled, the same canon forbids a new marriage before permission has been obtained from legitimate authority (i. e., the bishop or the Holy See).

7. Marriage between persons baptized in, or converted to, the Catholic Church, on the one hand, and unbaptized persons on the other (disparity of worship), is declared invalid in Canon 1070. The law speaks of persons baptized in, or converted to, the Catholic Church, i. e., of persons who ought to be Catholics. Therefore a baptized non-Catholic who never joined the Church can validly marry an unbaptized person. The same Canon also declares (§2) that if at the time of such a marriage a person was commonly held to have been baptized, or if the Baptism was of doubtful validity, the marriage should be upheld until it is proved that one party was, and the other was not, baptized.

8. Attempted marriage of clerics in higher orders, or of religious with solemn vows, or of religious with simple vows (which in this respect have the privileges of solemn vows) is declared invalid by canons 1072 and 1073- 9. No marriage can exist between a woman who was 1 1 Cor. VII, 15. forcibly abducted and the man who abducted her for the purpose of marriage, even if the former went of her own free choice to the place where she is forcibly detained by the latter for the purpose of inducing her to marry him. But the impediment ceases as soon as the woman is set free and willingly consents to the marriage (canon 1074).

10. The impediment of crime, as described in canon 1075, contains three distinct impediments. The first is contracted if a man and a woman, while at least one of them is lawfully married, commit adultery with the mutual promise to marry each other, or if they attempt civil marriage. The second is contracted if a man and a woman, while at least one of them is lawfully married, commit adultery with each other and one of them kills his or her lawful spouse. The third impediment is contracted if a man and a woman cooperate physically or morally in bringing about the death of husband or wife, even though the crime of adultery was not committed.

11. The diriment impediment of consanguinity or blood-relationship extends, according to canon 1076, to all degrees in the direct line upward (father, grandfather, etc.), and downward (son, grandson, etc.). In the collateral (side) line it extends only to the third degree, inclusive. The same canon also forbids marriage when there is positive doubt whether the parties are related by blood in any degree of the direct line or in the first degree of the collateral line.

12. Affinity (relationship by marriage) constitutes a diriment impediment in all degrees of the direct line, and up to the second degree, inclusive, of the collateral line (canon 1077); which means that the marriage of a woman after the death of her husband with any of his blood relatives in the direct line, and to the second de- gree of the collateral line, is invalid. Canon 97 declares that the impediment of affinity arises only from a valid marriage, whether consummated or not. The former impediment of affinity from sinful intercourse is dropped.

13. Public decorum is another diriment impediment (canon 1078). It may arise from an invalid marriage, whether consummated or not, or from public and notorious concubinage. The law forbids and annuls a marriage between such a man and the woman's blood relations in the first and second degree of the direct line, and vice versa.

14. Besides the diriment impediments of bodily relationship mentioned in the last three numbers, there is also a spiritual relationship (canons 1079, 768), which exists (a) between the one who baptizes and the person baptized, and (b) between the one baptized and his or her sponsor. This relationship is not contracted if Baptism is given conditionally, unless the same sponsor again acts in the ceremony of solemn Baptism (canon 763).

15. Another diriment impediment (canon 1080) is that of legal relationship arising from adoption. It constitutes a diriment impediment only where it is so regarded by the civil law. Thus if the civil law should declare the marriage of an adopted child with a natural child of the same family invalid, it would be invalid also in the eyes of the Church; not so, however, if the laws of the State in which the marriage takes place admit such marriages as valid.

1 6. The impediment of clandestinity is thus defined in canon 1094: " Only those marriages are valid which are contracted before the parish priest, or the Ordinary of the diocese, or a priest delegated by either of these, and at least two witnesses."

READINGS.—J. M. O'Hara, The Laws of Marriage Simply Explained According to the New Code, Philadelphia, 1918. —M. J. O'Donnell, " Matrimony in the New Code," in the Irish Ecclesiastical Record, Fifth Series, Vol. XI (1918), Nos. 6 sqq.—S. Woywod, O.F.M., The New Canon Law, New York, 1918, pp. 209 sqq. —H. A. Ayrinhac, S.S., Marriage Legislation in the New Code of Canon Law, New York, 1919.—Fr. Chas. Augustine, O.S.B., Commentary on the New Code of Canon Law, Vol. V, St. Louis 1920. —J. J. C. Petrovits, The New Church Law on Matrimony, Phila., 1921, pp. 67-291.