Section — Konings, Theologia Moralis
§ I. On Diriment Impediments in General
1573. Principles. - I. The Church has power of constituting impediments not only impeding Matrimony, but also diriment impediments. It is of faith. - See the arguments among the Dogmaticians.
II. The Church alone can constitute diriment impediments of Matrimony, and consequently secular Princes as regards Christian subjects cannot constitute impediments, except as to merely civil effects. Likewise see the Dogmaticians.
III. The subject of diriment impediments of divine law, whether natural or positive, are all men; of ecclesiastical law, all the baptized, except clandestinity in certain cases. - See n. 109. 110.
1574. Questions. - Quaer. 1° Can the civil legislator constitute impediments diriment of the Matrimony of infidels?
Resp. Affirmatively, with the more common opinion. The reason is because the Matrimony of infidels is a natural contract. St. Alphonsus1 also seems to be of this opinion, although he does not treat the question expressly. - Nevertheless among more recent authors Martin, Perrone, and Feije2 follow the negative opinion, relying on this reason, that the Matrimony even of infidels is a sacred contract, not to be compared with profane contracts.
Quaer. 2° Does an impediment invincibly unknown void Matrimony contracted with that impediment?
Resp. Affirmatively. The reason is clear from the things said n. 182. q. 2.
Quaer. 3° Are those impediments also incurred, although unknown, which seem to have the character of a penalty, as the impediment of crime?
Resp. Affirmatively. Thus more commonly with Lacroix.3 The reason is because those impediments do not have only the character of a penalty; and consequently they are always incurred, although ignorance excuses from the penalty according to the common opinion where there is question of a merely prohibiting law. Cf. n. 182. q. 2°. § Except, however. - Others deny, relying on reasons not to be despised. Nevertheless, since the probability, if any arises from them, is not universally or certainly received, the negative opinion cannot be brought into practice,4 according to the things to be said q. 5°. R. 1°.
Quaer. 4° Do the laws of the Church constituting diriment impediments urge even in a case of most grave inconvenience, e.g. danger of death, etc.?
Resp. Affirmatively. See the reason n. 182. q. 3°. - Recall nevertheless also the things said n. 1556. q. 3°.
Quaer. 5° Is it licit to contract Matrimony with a doubtful or probable impediment?
Resp. 1° Affirmatively, according to the common opinion, in a doubt or probability of ecclesiastical law, provided that that probability is universally or certainly received by Authors. The reason is because, if perhaps the impediment were really present, the Church is judged to supply the defect of a contract void by Canon Law, just as it supplies defect of jurisdiction as often as Doctors commonly hold that she supplies jurisdiction in the Sacrament of Penance, where common error intervenes (n. 60. I.). Moreover the opinion teaching that the Church supplies also in the present case of a doubtful impediment is generally received as probable, and according to several as morally certain, by innumerable Doctors who favor it.1
Resp. 2° Negatively, if there is question of a probability of divine law, whether positive or natural, e.g. in the impediment of bond or impotence; because then the Church cannot supply the probable defect, since that impediment does not depend on the Church. Therefore Matrimony so contracted would remain doubtful; and consequently it is never licit to receive a Sacrament with such doubt. Therefore. The case can be given with former slaves, "who were sometimes" joined "in several marriages among themselves, with this compact nevertheless, that it would not" be clear "that some true marriage had been entered by them."3 St. Alphonsus2 says that it belongs to the Pontiff alone to explain divine law in this matter, in special and rare circumstances of things.
Resp. 3° Negatively also, if there is question of probability of fact. The reason is because in probability of this kind the Church is not presumed to dispense. But the contrary opinion is not commonly received as probable; and from another source too many inconveniences would follow if, after Matrimony had been contracted, the error were discovered. - Thus commonly.4 - For the rest, in more difficult and implicated cases, the Bishop should be consulted.5 - But in doubt concerning an impedient impediment, the principles of Probabilism are simply to be applied.
Quaer. 6° Is it licit for spouses to use Matrimony if, after nuptials have been entered, probable doubt arises concerning some impediment?
Resp. 1° Negatively, before due inquiry concerning the truth. Nevertheless, if only one doubts, this one ought to render the debt to the other as to a legitimate possessor, provided the other asks in good faith and does not lack the right of asking (e.g. in the first two months, etc.).6
Resp. 2° Affirmatively, if, after due inquiry, the doubt perseveres and Matrimony has been entered in good faith (n. 739. II.), indeed, quite probably, even in doubtful faith: for in doubt one must stand for the value of the act. - Except: a) the case concerning which n. 1619. under 4°; b) the case of doubt concerning the death of a prior spouse, and this, as St. Alphonsus1 teaches against others, "whether the nuptials were entered with good faith or with doubtful faith." The reason is "because then there remains probable danger of injury to the prior spouse," and "because in that case the prior Matrimony possesses." Nevertheless the one doubting, as was said under Resp. 1°, is held to render the debt to the other party asking in good faith and not lacking the right of asking, although he is prohibited from asking.2
Quaer. 7° Is Matrimony valid when contracted with a supposed impediment, but one not existing?
Resp. 1° If the contracting party is not altogether certain concerning the impediment, but doubts about it in some way, the Matrimony is valid. - Thus commonly with Lacroix.3 - The reason is because he contracts at least conditionally, namely insofar as I can, although he does not reflect on that condition: therefore, the impediment not existing, consent is now absolute.
Resp. 2° If he contracts with certainty of an impediment which he little esteems, so that he resolves to live in concubinage, it is certain that the Matrimony is invalid. The reason is because then the will of contracting Matrimony is not predominant.
Resp. 3° If indeed he contracts with certainty of an impediment, but grieving over the impediment and not daring to disclose it, lest the Matrimony be impeded, or lest he be defamed, or from some inadvertence, it is controverted. More probably the Matrimony is valid on account of the predominant will of contracting it. - Thus Lacroix.4 - Nevertheless for caution in practice he would have to be induced to renew consent. (38) p. 424.
Notes to n. 1574 - note sequence 1. (1) L. VI. 956. § certum est 2. and n. 981. (2) De Imp. n. 67. (3) n. 525. (4) Vind. p. 792. 1). Ed. 2a. T. II. p. 452. col. 2 (1). Notes to n. 1574 - note sequence 2. (1) L. VI. 901. Cf. Vind. p. 947. Ed. 2a. T. II. p. 607. (2) L. VI. 902. (3) Kenr. Tr. XXI. 51. (4) L. VI. 902. (5) Heiss. § 12. (6) L. VI. 903. (7) Ib. 904. 906. Notes to n. 1574 - note sequence 3. (1) L. VI. 904. 906. (2) Ib. (3) n. 531. (4) n. 531. Appendix annotation (38), to n. 1574. q. 7°. p. 248. col. 2. Besides the rules handed down in this number, in solving doubts concerning the value of Matrimony let those also be observed which we add here. I. A negative doubt is never to be attended to. The rule is valid both concerning Matrimony contracted and concerning Matrimony to be contracted. Consequently its value or nullity is to be retained according as either liberty or the law of the impediment is in possession, n. 49. I. Wherefore, for example, a spouse negatively doubting about the death of the other party cannot fly to other nuptials; for the law of the impediment of bond possesses. On the contrary, a vain suspicion that a sister contracted betrothal with the bridegroom does not prohibit her from entering nuptials with him, because not the law of the impediment of public honesty, but liberty, is in possession. To a negative doubt is equated, at least practically, that which is conceived from the saying of persons who are not worthy of faith; and this both as regards Matrimony to be contracted and as regards Matrimony contracted. The reason is that such a saying is not a prudent reason of doubting, nor consequently a positive doubt, but merely a negative one, n. 48 under 1. - The same, for the same reason, is regularly to be said concerning a doubt conceived from the assertion of the other party that he or she consented fictitiously. See the things said in n. 1548. q. 7°. I say: regularly, that is, unless, on account of the circumstances, the truth of the assertion is to be presumed. Ib. and St. Alphonsus. The same, again for the same reason, is to be said if there is question of a doubt which would exist from fame arisen from no certain author, or from rumor concerning an impediment. See n. 1566. 1°. Yet in this case, as regards practice, careful inquiry must be made whether the fame truly has arisen from no certain author; in other words, it must be asked from what sources the rumor came forth. But if the rumor stands firm, and the truth cannot be investigated by witnesses, the ecclesiastical Superior, before the celebration of Matrimony, will be able to defer oaths against this rumor both to the relatives and to the contracting parties themselves. II. A positive doubt arisen from the saying of one witness worthy of faith, or from public fame which has a certain author, suffices for the celebration of Matrimony to be inhibited, n. 1566. 1°. But what the effects of a doubt of this kind are upon Matrimony already contracted, see n. 1574. q. 6°. III. A positive doubt, by reason both of Matrimony to be contracted and of Matrimony contracted, is sometimes solved by proofs sought from presumption, and this either for Matrimony or against it. The cases more obvious than the rest are these: 1° The case in which the impediment is established and it is doubted whether a dispensation was given in it. Then namely the presumption stands for the impediment; for in doubt "a fact," the dispensation, "is not presumed, but must be proved," n. 67. 1°. b. On the contrary, if the dispensation is established and there is doubt concerning the value of it, the presumption stands for the dispensation, according to that very well-known principle: "in doubt one must stand for the value of the act," n. 67. 2° and n. 162. 5°. 2° The case about which there is treatment in n. 1589. II. § As regards practice. 3° The case about which there is speech in n. 1601. q. 3°. R. 3°. In that place a vehement presumption is understood as one which renders the death most probable, so that only a tenuous probability remains that the other party is still surviving. 4° The case of the other party asserting that he or she consented fictitiously, as we said above under I, v. I say: regularly. > Notes to appendix annotation - note sequence 12. > > 1 L. VI. 908. § Secunda. | 2 Ib. § Prima. | 3 Ib. § Secunda. | 4 Decr. L. IV. T. I. c. 27. Heiss, De Matr., § 70. III.