Article II: On Diriment Impediments

DIRIMENT IMPEDIMENTS, which namely stand in the way so that matrimony is not entered validly, have not all been constituted by the same authority: for some have their origin from natural law, others from positive divine law, and finally others from positive human law, i.e. ecclesiastical law, as we shall see in their places. But before we enumerate them, it must briefly be said both of the POWER by which they are constituted, and of the PERSONS whom their bond constrains. - Hence the following:

1994. Principles. I. The CHURCH, by proper and original right, CAN ESTABLISH diriment impediments of matrimony. - It is of faith, from Trent (sess. 24, can. 4), thus defining: "If anyone shall have said that the Church could not establish diriment impediments of matrimony, or that she erred in establishing them: let him be anathema." - For Christ, when he had renewed marriages to their primary excellence, "entrusted and commended the whole discipline of them to the Church. Which power she exercised in the marriages of Christians at every time and in every place in such a way that it appeared to be proper to her, and not sought by the concession of men, but obtained divinely by the will of its Author."¹

1995. II. The CHURCH ALONE can establish diriment impediments, as regards marriages OF CHRISTIANS. - For "since matrimony is sacred by its own force, its own nature, and of its own accord, it is fitting that it be ruled and governed not by the command of princes, but by the divine authority of the Church, which alone has the magisterium of sacred things. Then, the dignity of the Sacrament must be considered, by whose accession the marriages of Christians have become by far most noble. But concerning a Sacrament the Church alone, from the will of Christ, can and ought so to establish and command, that it is plainly absurd to wish even the smallest part of her power to have been transferred to the governors of the civil commonwealth."²

From today's discipline, and already for several centuries, the FACULTY of establishing diriment impediments has been made a greater cause reserved to the supreme authority, namely to the Roman Pontiff or to a general Council; and this seems to have been done for preserving uniformity in so arduous a business, in which difficulties can easily arise.³

1996. III. By diriment impediments of natural law, or of positive divine law, ALL MEN are bound; but by impediments of ecclesiastical law, ONLY CHRISTIANS. - And in very truth: 1. as regards impediments of the law of nature, the matter is evident, since the natural law extends itself to the whole human race. The same must be said as regards impediments of positive divine law; for the things which pertain to it were established in the marriage of our first parents, and therefore are valid for all their children.⁴ - 2. But that only Christians, and not infidels, are bound by impediments of ecclesiastical law is certain, since these are not subject to the Church. It is equally certain that all Catholics, in this matter, are held by the laws of the Church. But whether also non-Catholics are held by the same was more disputed; yet the common opinion now affirms it. The reason: because non-Catholics through Baptism have been made subjects of the Church; but she intends to oblige them, since she holds as invalid marriages contracted in heresy, to which nothing stood in the way except an impediment of ecclesiastical law (cf. n. 198). - An exception mercifully made by the Church, in certain cases, as regards the impediment of clandestinity, will be commemorated below, where the Celebration of matrimony is treated (cf. n. 2071).⁵

1997. Questions. Q. 1. Whether the CIVIL LEGISLATOR can establish impediments diriment of matrimony?

Resp. 1. Negatively, as regards marriages of Christians, since power over sacred and divine things belongs exclusively to the Church (cf. n. 149 and 2089). - 2. As regards marriages of infidels, it is disputed. Among the older Theologians the opinion which adjudicated such power to the civil legislator was indeed more received;⁶ but among more recent authors the denying opinion has become more common;⁷ and this pleases us more, since "matrimony is sacred by its own force, its own nature, and of its own accord," as Our Most Holy Lord Pope LEO XIII says⁸ (n. 1995).

Q. 2. Whether an INVINCIBLY UNKNOWN impediment renders matrimony invalid?

Resp. Affirmatively; because it induces inability, for contracting which knowledge is not required. And this is valid, according to the more common opinion, even concerning those impediments which seem to have the nature of a penalty, such as the impediment of crime seems to have.⁹ See what is to be said concerning this impediment (n. 2035 sqq.).

Q. 3. Whether an impediment invalidates matrimony, if this is entered FOR AVOIDING a most grave inconvenience?

Resp. Affirmatively; because the common good stands against the cessation of impediments on account of private convenience. For, after some grave fear had been inflicted, too easy a way to contemn them would lie open. Add that marriages would be rendered very uncertain, because it would not always be established concerning a sufficient inconvenience. Thus commonly the Doctors hold it as most certain.¹⁰

Q. 4. Whether it is licit to contract matrimony with a DOUBTFUL or PROBABLE impediment?

Resp. 1. Affirmatively, if the diriment impediment is of ecclesiastical law, and after diligence has been employed, there is had an opinion probable by probability of law concerning the absence of the impediment, provided that opinion is universally, or certainly by Authors, received as probable. Nor does it stand in the way that, in the confection of the Sacraments, it is not licit to use a probable opinion; "for it is answered that in this case the Sacrament of matrimony is not ministered with a merely probable opinion, but with moral certitude:" because, as the Doctors commonly hand down, when a probable opinion of law stands, that an impediment is not present, from most ancient custom the Church is judged to dispense in it, if perhaps it is present.¹¹ But this does not hold, if the probability is of fact: for example, if it is believed only probably that intercourse was not perfect, and therefore that affinity is not present; or that betrothals were not valid, and therefore that the impediment of public honesty is not present. - The reason is that in probability of this sort the Church is no longer presumed to dispense, and the opposite opinion is not commonly received as probable; and from another side too many inconveniences would follow if, after matrimony had been contracted, the error were discovered.¹²

Resp. 2. Negatively, speaking of itself, if the impediment is of divine law, whether natural or positive; and the reason is that it is illicit to minister a Sacrament with an opinion only probable concerning its validity; but the Church, in this case, cannot supply the probable defect, since the impediment does not depend on her. - "We said speaking of itself; for, when a most grave cause is urgent, matrimony can be contracted, provided there accedes a declaration of the Supreme Pontiff as the sole interpreter of divine law"¹³ (cf. n. 135).

1998. With these things generally said, one must now treat specifically of the individual impediments.

FIFTEEN are numbered, comprehended in these little verses:

Error, condition, vow, cognation, crime,
Disparity of cult, force, order, bond, honesty,
Age, related by affinity, if clandestine, and impotent,
Or if the woman has been abducted, and not restored to a safe party:
These forbid unions to be joined, retract those made.

These impediments draw their origin, some from defect of valid consent, others from defect of ability of the contracting parties, but one from defect of the form prescribed by the Church. Therefore under a diverse title, according to the variety of origin, we shall treat of each.