Chapter VI. On the Impediments of Matrimony

1559. - The impediments of Matrimony are: 1° diriment or impedient; 2° of divine law (whether natural or positive) or ecclesiastical law; 3° absolute or relative (respective); 4° antecedent or supervening; 5° public or occult.

1560. - A diriment impediment is so called, not because it dirimes a true Matrimony, but because it makes the act void by which someone, while it is subsisting, would undertake to enter Matrimony in fact. - Impedient impediments render Matrimony not invalid, but illicit.

1561. - Impediments of NATURAL divine law are more strictly taken from the very substance of the thing; and such certainly are defect of consent, impotence, and conditions adverse to the substance of Matrimony. - Impediments of positive divine law and of ecclesiastical law are those which have for their cause the express will of the legislator, whether divine or ecclesiastical. The impediment of bond is more commonly called of positive divine law; nevertheless it is so closely connected with natural law and is derived from it that rather it must be called of natural law. It is also most commonly taught that the impediment of consanguinity in the first degree IN THE STRAIGHT LINE is of natural law; concerning some others there is dispute, as we shall see in their own place; but nearly all the remaining impediments certainly are of ecclesiastical law.

There is by far a different effect of an impediment of natural or divine law upon natural consent than of an impediment of ecclesiastical law. When consent itself is lacking, there can be no speech concerning the effect of natural consent. But if there is question of another impediment of natural or divine law, natural consent indeed exists, but by the impediment it is so radically infected that it can never have any force, and is null as regards every effect, even a future one, because either it is contrary to the substance of Matrimony, or there is no power on earth which can attribute an effect to it. But when the impediment is of ecclesiastical law, natural consent indeed has no effect while it is offered, but it can, if it perseveres, have an effect afterwards, when by competent power, in a certain determined mode to be indicated by us afterwards, the impediment is removed.

1562. - Absolute impediments, e.g. Order, render someone incapable with respect to all; relative (respective) impediments, e.g. crime, render someone incapable only with respect to certain persons.

1563. - Antecedent impediments exist before the celebration of Matrimony; supervening impediments arise after it has been contracted. Indeed the force of diriming belongs regularly to an impediment only if it precedes Matrimony; if nevertheless it supervenes, it has certain notable, although diverse, effects. There are only three cases in which Matrimony validly contracted is dissolved: religious profession emitted by solemn vows when Matrimony has not yet been consummated; dissolution of non-consummated Matrimony made by the Roman Pontiff; and the case of the Apostle. Nevertheless a supervening impediment in diverse other cases has very notable effects, e.g. privation of the right of asking or rendering the conjugal debt, or privation of each.

1564. - Public and occult impediments. This division is especially to be noted for dispensations. - For the sake of brevity, for practice, we call public that which in no way is occult. Therefore the only question, for practice, is what here is called occult.

Occult is twofold, namely altogether occult and quasi-occult, or occult without addition. - Altogether occult is that which cannot be proved by two witnesses,¹ or which is known to only one besides the parties and the confessor. - Quasi-occult is that which is known to few. But how many come under the name of few? I respond that circumstances are to be attended to, but chiefly the following:

1° The place, by reason of which that is called occult which in a town is known only to six persons, in a city only to seven or eight. Indeed St. Alphonsus writes that he knows that the Sacred Penitentiary, which dispenses only in occult matters, dispensed in an impediment of consanguinity known to about ten persons.

2° Probable danger, or prudent fear, lest the matter be brought to the external forum or divulged. "Hence," Reiffenstuel¹ rightly says, "in practice one must altogether attend not only to how many persons, but also to what kind of persons, the impediment is known, because it can well happen that with respect to five prudent persons fearing God, who know the impediment, there is altogether no danger of further divulgation; and, on the contrary, with respect to two or three, e.g. talkative persons, or enemies, etc., the danger of divulgation may seem truly present, especially if other circumstances also threaten such danger."

3° The mode by which the fact from which the impediment arises is known; for a public fact which has not become known as criminal does not prevent the impediment from being judged occult.² The case would be, e.g., in the impediment of crime from homicide deliberately perpetrated, but which the people judges to have been perpetrated by accident. - But if the crime is public, yet almost everyone is ignorant of the penalty imposed upon it or the impediment annexed to it, some deny that it is occult; others, as St. Alphonsus,³ affirm. But the holy Doctor seems to rely only on the doctrine of Benedict XIV, whom he supposes to adhere to the affirmative opinion; yet Benedict XIV, in the place cited by St. Alphonsus, namely Inst. Eccl. 87. n. 42, sets forth not his own opinion, but that of others; but his own in n. 48, namely the negative, to which the practice of the Sacred Penitentiary, at least in the time of Benedict, was conformed. - For the rest, although Benedict XIV, as a particular doctor, does not accept the affirmative opinion, nevertheless he is forced to testify (Inst. cited, n. 42) that it is handed down by nearly all writers. Therefore the Bishop also safely follows it in a case in which he dispenses by force of quasi-ordinary power.⁴

4° The nature of the impediment itself; for if by its very nature it is public, as consanguinity, affinity from licit copula, and spiritual cognation, although accidentally it would be occult, it is judged public as often as there is question of Matrimony to be contracted.⁵

Notes near nn. 1559-1564, divisions of matrimonial impediments (printed p. 243).

1 L. VI. 605. Cf. 1116.