Article III: On The Dissolution Of Betrothals

1956. Betrothals, which consist in a contract soluble by its nature, are dissolved not only by the death of the other party, as matrimony is, but by various other causes.

Principles. I. Betrothals are dissolved among the pubescent BY MUTUAL CONSENT. - For with no law standing in the way, the parties can mutually remit to each other the reciprocal obligation by which they are held. But the same consent which was required for contracting is required for dissolving: namely voluntary and free consent, such that it is extorted neither by fraud, nor force, nor fear. If this has been given on both sides, the betrothals are immediately dissolved, although they had been confirmed by oath; and this not only validly, but also licitly, if a reasonable cause is present; otherwise it would be at least venial. Thus commonly.¹³

It is said among the pubescent; for as to impubescents there is present a special disposition of law,¹⁴ by which the dissolution of their betrothals is forbidden before they have arrived at the years of puberty, namely lest on account of unstable judgment, they easily and often rashly contract betrothals, and again dissolve them. But once the age of puberty has been reached, either spouse will be able, without waiting for the other, to recede from the betrothals, provided he protests before a judge or witnesses within three days, which begin not indeed from the time puberty is reached, but from the day when knowledge was obtained of the privilege of receding. But if the spouse dissents already before puberty, and perseveres in the manifested dissent, the betrothals are dissolved as soon as he arrives at the years of puberty.¹⁵

But mutual consent of receding is had: either 1. because a change of wills has intervened; or 2. because the betrothals had been entered under some resolutory condition, which was then verified; or 3. because they had been entered with the condition of contracting matrimony at a determined time, which has now elapsed. - But concerning this last cause of receding, some things are to be NOTED.

A term is added to betrothals either to urge the obligation of contracting matrimony, or to end it. "Then it is added to urge, when the parties therefore set a term, so that neither before it can compel the other to fulfill the contract. But then to end, when the term is added so that, when it has elapsed, no obligation remains."¹⁶ Hence, if the term added for ending the obligation has elapsed by the fault of both or of neither, the betrothals are dissolved on both sides; if by the fault of either, the innocent party remains free; but not the other party, who was in cause why the matrimony was not contracted.¹⁷

1957. II. Betrothals are dissolved BY ELECTION of a more perfect state. The reason is, because betrothals are judged to have been entered under the tacit condition: unless a more perfect state is chosen.¹⁸ Wherefore one party can also choose this without the consent of the other.

But concerning this it must be NOTED: 1. Through religious profession or reception of sacred Order the obligation of betrothals is so totally extinguished that it no longer revives.¹⁹

2. Through entrance into Religion, likewise through a vow, and even through a simple purpose, but duly manifested, of entering Religion or receiving sacred Order, the obligation of betrothals is similarly extinguished, but only for the party dismissed. But for the other party, the obligation remains only suspended, until the more perfect state has been immutably entered. Whence, if he recedes from the purpose, the obligation so revives, that he is bound to stand by the betrothals, if the dismissed party demands this.²⁰

3. Through reception of minor Orders, according to the more common and truer opinion, betrothals are not dissolved; "because in truth the state of minor Orders is not incompossible with matrimony, since someone can well become a married cleric."²¹ Nevertheless, if the reception is made with the will of progressing further, the bride is freed; indeed it can happen that she is freed on account of only the minor Orders received by the bridegroom, namely if she were so averse to matrimony with a cleric that, the change of state having been foreseen, she never would have contracted.

4. Through a vow of chastity made by one party, the other party is released from every obligation; because the one vowing chastity yields his right. But the obligation of the one vowing is not altogether extinguished, but only suspended, as long as he remains bound by his vow. Wherefore, if he afterwards obtains dispensation of the vow, and no other cause of dissolution is present, the betrothals revive.²²

1958. III. Betrothals are dissolved THROUGH ANY IMPEDIMENT WHATEVER by which the promised matrimony is rendered ILLICIT or INVALID.¹

For no obligation to contracting such a matrimony can be given. - Now, besides election of the more perfect state, concerning which we have already treated, FOUR impediments of this sort are commonly enumerated, namely: perpetual impotence, matrimony validly although illicitly contracted, affinity from illicit copulation, and dissent of parents.

1. Through perpetual impotence, which supervenes in either of the spouses, betrothals are altogether dissolved, since the promised matrimony becomes absolutely impossible.

2. Through a valid matrimony contracted by the other party, betrothals are dissolved as to the innocent party. But as to the guilty party, the opinion (St. Alphonsus judging) absolutely more probable teaches that the obligation is not extinguished, if the other party waits; but is only suspended, so that, when the marriage has been dissolved, he is bound to fulfill the prior betrothals. "The reason is, because it is proved by no law that betrothals are altogether irritated through a subsequent marriage: not by positive law, because this is nowhere had; not by natural law, because this only demands that while the marriage endures, the prior obligation does not bind."²

3. Through affinity from illicit copulation (concerning this impediment cf. below n. 2027) betrothals are dissolved on the part of the INNOCENT party, so that he or she is not bound to admit dispensation. But the mere fame of an impediment of this sort suffices, i.e., an opinion among the greater part of the neighborhood. But on the part of the GUILTY party, the more common and more probable opinion holds that the obligation of betrothals is not removed, but only suspended, until the impediment is removed; because it is not equitable that the delinquent derive advantage from his crime. Wherefore, he who placed the impediment is also bound, even setting aside the damage inflicted, to obtain dispensation, if this namely can easily be obtained; "otherwise, if great expenses and long delay would be required for it; because the obligation arising from betrothals presses the spouse to apply only ordinary and easy means, but not difficult and extraordinary means. Except nevertheless, unless damage of defloration or fame had to be repaired; because then he would be bound even to expend a great expense."³

4. Through the dissent of parents betrothals are sometimes dissolved, namely as often as they dissent justly: e.g., because the matrimony would verge to the dishonor of the family, since no one can be obliged to execute an unjust thing. - Indeed, they are dissolved through their unjust dissent, if a grave evil, e.g., disinheritance, were to be feared: "because all betrothals are understood to be contracted under this condition: if such a change does not occur, whence it is grave to contract matrimony. - Except, unless this disinheritance had already been foreseen; because then the one contracting is rightly judged to have yielded to his right."⁴

1959. IV. Betrothals are dissolved on the part of the innocent one, through any act whatever by which the other party is judged to have BROKEN betrothal FIDELITY.⁵ For fidelity must not be kept for one breaking fidelity. - Therefore the innocent party is altogether freed: 1. if the other party contracts new betrothals, although invalid (or civil marriage with another); 2. if he delays the celebration of marriage too much, e.g., for three years, or contrary to the judgment of a prudent man; 3. if he transfers his domicile elsewhere: for such things are opposed to betrothal fidelity.⁶

1960. V. Betrothals are dissolved through a NOTABLE CHANGE which supervenes when they have already been contracted, and which would have deterred from contracting them if it had been foreseen from the beginning. And the same must be said, IF THE STATE OF THINGS is found DIFFERENT from that which had been known. The universal reason is, because, as is handed down in law,⁷ the promise of betrothals is understood to have been made while things remain in the same state; and this, as St. Thomas teaches,⁸ lest conjugal union beget perpetual displeasure between the contracting parties, or obtain an unhappy outcome. But if ignorance of the change or defect was merely concomitant, and therefore not the cause of the contract, the betrothals are not dissolved. - But in doubt whether the defect (if it had been known) would have impeded the betrothals, it is presumed that it would have impeded them, if in reality, i.e., in the judgment of prudent men, it is grave in itself and notable.

Moreover, a notable CHANGE from which betrothals can licitly be dissolved can happen in a THREEFOLD way, namely:

1. In GOODS OF SOUL, e.g., when the spouse is discovered to be a drunkard, gambler, blasphemer, impious, a man harsh and hard in morals or savage; when he has committed an atrocious delict, e.g., homicide, grave theft, has fallen into heresy, etc. For the things which commonly suffice so that a marriage already contracted may be dissolved as to cohabitation, much more suffice so that it not be contracted; "for a guest is cast out more shamefully than he is not admitted."

But concerning supervening FORNICATION, or fornication newly detected, these things are to be noted. - If fornication follows betrothals, it effects two things: it breaks the fidelity given, and renders the party who has polluted himself or herself with it more base; if it preceded the betrothals, it produces only the latter effect. Commonly, this crime affects the bride with much greater baseness than the bridegroom. Wherefore it must be said: 1) on account of ANTECEDENT fornication the bridegroom can dismiss the bride; but not vice versa, unless perhaps the bridegroom has had offspring from another, or unless, on account of the frequency of the crime, he is known to be given over to this vice. - 2) On account of SUBSEQUENT fornication the innocent party (whether the bridegroom or bride) can similarly dismiss the guilty party, on account of betrothal fidelity not preserved. If each, by fornicating, has broken fidelity to the other, there is had compensation of delict, and neither can on that account recede. But the bridegroom (not the bride) can step back by another title, namely from this, that the bride has been rendered notably more base from fornication, and this even if she had been oppressed by force, or induced to consent from most grave fear. Likewise the bride can be dismissed who has permitted herself to be touched immodestly by another; but the bridegroom cannot on account of similar things, unless it can rightly be feared that he will not preserve fidelity to the bride.⁹

2. In GOODS OF BODY, e.g., if grave deformity, blindness, cutting off of a member, habitual and contagious disease supervenes on either party; provided at least a prudent suspicion concerning these is had.

3. In GOODS OF FORTUNE, e.g., if it is discovered that the bride does not have a dowry; if the bridegroom has made a loss of goods, or of the office by which he was sustained; if either tends toward want, or is disinherited by parents: provided at least a prudent suspicion concerning these and similar things is had.

Therefore on account of a notable change of this sort in one party, the other party can recede; but if he does not wish to recede, neither is it licit for the party who has suffered the change to depart, unless perhaps the change would render the burden of matrimony notably more grave.¹⁰

These things concerning a change for the worse. - But if the CHANGE had been made FOR THE BETTER, for example if an abundant inheritance unexpectedly comes to either, the very common opinion teaches that this change precisely in itself is not a sufficient cause why the fortunate party may recede from the betrothals, since that party was not deceived in the condition of the other party. - Nevertheless, if a far better marriage, on account of the change made, is offered, the party who has obtained the change does not seem altogether to be condemned, if, the first betrothals being set aside, he should enter new ones; for just as he would not be bound to stand by the betrothals with great damage to himself, so neither does he seem to be bound with the loss of great gain; for such a loss is equated with grave damage.¹¹

And generally it must be NOTED, that the obligation of betrothals CEASES when there is present a probable fear of an unhappy outcome. If the cause of fearing has arisen by the fault of one party, this party is bound to repair the damage inflicted on the other, e.g., on account of expenses already made.

IT IS ASKED. Whether the party laboring under an OCCULT DEFECT, sufficient for dissolving betrothals, is bound to MANIFEST it before betrothals, or when they have already been contracted, before matrimony?

Resp. Dist. 1. If the defect is pernicious, rendering matrimony odious and damaging to the other, such as a contagious, venereal disease, or infamy from delict, if e.g., the bride is pregnant from intercourse with another, if the bridegroom is burdened by debt: it must altogether be manifested, unless the other party also labors under the same defect. "The reason is, because just as he sins against justice who sells noxious wares to another believing them good, so a fortiori does he who wishes to contract matrimony with a pernicious defect." If therefore he does not wish to manifest the defect, he must abstain from contracting.¹²

2. If the defect does not render the nuptials noxious, but only less desirable, e.g., if the bride is falsely thought to be a virgin, rich, beautiful, it is indeed not licit for the bride to pretend that she is immune from defect, but neither is she bound to manifest it. "The reason is, both because it has already been received by custom, that there is no obligation of manifesting such defects to the other; and because no one is bound to reveal his own defect with his own infamy, if he does not injure the right of another." Thus commonly.¹³

Nevertheless St. Alphonsus adverts that the dissimulation of a defect, although it is not illicit, is not expedient, if it is prudently to be feared that after the marriage has been contracted it may be detected, and become a cause of discords.

1961. VI. Betrothals are dissolved THROUGH PONTIFICAL DISPENSATION. - For although through betrothals a strict right has been made for the other party, nevertheless the Supreme Pontiff can, on account of most grave reasons, prejudice this right. - Dispensation is customarily granted through the S. Congregation of the Council, after information has been received from the Ordinary, who, in this matter, from common law, possesses no authority.¹⁴

It must be noted: 1. The faculty of receding, concerning which we spoke, is to be taken in such a way that either spouse is able to renounce this right; wherefore, if the innocent party, having known his right, nonetheless ratifies the betrothals by words or deeds, and especially by carnal copulation, he cannot recede any more, because he is to be judged to have renounced his right. - 2. If the cause of receding is altogether certain, each can recede by his own right; but if a doubt either of law or of fact intervenes, the cause is to be referred to the ecclesiastical judge, i.e., to the Bishop.¹⁵

N. B. Concerning those things which regard the external forum, see the Canonists.¹⁶