§ 2. On Impediments Diriment Of Matrimony On Account Of The Inability Of The Contracting Parties

2006. These impediments refer, some to DEFECT OF NATURE, and these are age and impotence; others to defect of FREE STATE, and these are vow, Order, and bond; others to the REVERENCE DUE to connected persons, and these are cognation, affinity, and public honesty; others finally to DANGER both of CONJUGAL FIDELITY and of CHRISTIAN FAITH, and these are crime and disparity of cult.

To one considering it, it is clear that the FIVE FORMER are absolute impediments, which invalidate matrimony with any person whatever as long as they subsist; but the FIVE LATTER are relative impediments, which invalidate matrimony with certain persons, by reason of whom the impediment exists.

2007. DEFINITION. The impediment of AGE consists in this, that both or at least one of the contracting parties has not yet attained the age of puberty; namely, if the MAN has not yet completed the fourteenth year, but the WOMAN the twelfth year.

DIVISION. A twofold puberty is DISTINGUISHED: natural, which consists in an expedited faculty of generating; and legal, which consists in the age determined by law, and which has just been defined. But the definition of law is founded on the presumption that at that age both sufficient discretion and the power of generating are had.

Principle. Defect of the age OF PUBERTY invalidates matrimony by ecclesiastical law, unless malice supplies for age. That matrimony is invalidated by this impediment has been defined many times in law; but that it is invalidated from ecclesiastical law, Benedict XIV declared in the Bull Magnae Nobis. The reason is that, by the law of nature, there is required only deliberate consent, and radical ability for the work of marriage, which at some time will be expedited. Moreover, the matrimony of the impubes is of itself null, as is had in law: and this, even if few days were lacking to the age of puberty, as is commonly taught.¹⁷

It was said: unless malice supplies for age, i.e. unless there is present, before the established age, sufficient discretion, and it is established concerning actual power of generating. But this is established with the greatest difficulty, apart from the case in which a girl, not yet having attained legal puberty, has already conceived: wherefore, that matrimony can be entered licitly, the declaration of an ecclesiastical judge is required. - But if it is established concerning discretion indeed, but there is doubt concerning expedited bodily ability, there is need of Pontifical dispensation, which is conceded so rarely that the impediment can be held as almost indispensable.¹⁸

IT IS ASKED. Whether matrimony is valid, if the contracting parties have attained LEGAL puberty indeed, BUT NOT NATURAL?

Resp. Affirmatively; because natural puberty is required by no law: not by natural law, which demands only radical ability; nor by positive law, which asks only the established age. - From what has been said it is easy to conclude that matrimony is valid, if the contracting parties, besides necessary discretion, have attained either puberty, namely legal or natural.¹⁹

2008. DEFINITION. Impotence, as regards matrimony, is inability for conjugal intercourse of itself apt for generation.²⁰

Whence, the impotent are not the sterile, or old persons, nor women who do not retain the seed received, provided they can perform the act of matrimony; for if they cannot generate, this is by accident. On the contrary, the impotent are perfect eunuchs, who namely lack both testicles, as Sixtus V declared in the year 1587 in the Bull Cum frequenter; likewise those who have testicles so crushed that they do not emit true seed; or those who labor under so great bodily debility that they cannot attend to the work of marriage. For all these are incapable of that act "by which generation would be possible of itself."²¹ Likewise women are impotent who lack uterus and vagina,²² or on account of another infirmity or surgical operation do not suffer the congress of a man.

DIVISION. Manifold impotence is distinguished:²³

1. One is natural, which comes from a natural defect, for example from excessive frigidity in the man, or from excessive narrowing of the vessel in the woman. Another is accidental, which comes from an extrinsic eventual vice, e.g. from disease, malefice, a violent act.

2. One is perpetual, which cannot be removed by natural and licit means, but only through a miracle, or through sin, or with danger of death. Another is temporary, which can be removed by licit and ordinary means, e.g. by surgical art, or even by the lapse of time.

3. One is absolute, which is with respect to any persons whatever: with this labors the man lacking both testicles. Another is respective, which is only with such a person: thus a woman can be apt for one man, but not another.

4. One is antecedent, which preceded matrimony; another subsequent, which followed it.

2009. Principles. I. ANTECEDENT and PERPETUAL impotence, whether natural or accidental, INVALIDATES matrimony with respect to all persons, if it is absolute; but if it is relative, with respect only to that person with whom conjugal intercourse is impossible. - This is clear both from canon law and from natural law: "the reason is that matrimony consists in the mutual handing over of bodies physically apt for generation, or in the handing over of the power of the body for conjugal intercourse: but this power the impotent person cannot hand over, since he does not have it."²⁴ Wherefore it must be adverted that, although intercourse is not of the essence of matrimony, nevertheless power for it is of the essence.²⁵

Hence, when impotence of this sort is CERTAIN, the trial of three years is not conceded, but the unimpeded party can immediately depart from the other; indeed he or she is bound, if there is danger of incontinence. Likewise, that party can pass to other nuptials, if scandal is not present; but if it is present, as commonly happens, that party must altogether recur to the ecclesiastical judge, and prove the impediment.²⁶

2010. II. SUBSEQUENT impotence, and TEMPORARY ANTECEDENT impotence, DO NOT invalidate matrimony. - The reason for the first is that subsequent impotence finds matrimony already valid, and therefore indissoluble. The reason for the second is that one laboring under only temporary impotence is, speaking absolutely and of himself, suitable for the conjugal act.²⁷ Nevertheless this impotence, if it is certain, makes the use of matrimony ILLICIT during that whole time in which there is no probable hope that the act can be legitimately completed. Yet touches and kisses are not forbidden, provided they do not induce danger of pollution (cf. n. 817).²⁸

2011. IT IS ASKED. What must be done IN DOUBT concerning impotence?

Resp. 1. Before nuptials have been entered, the party doubting concerning his potency, understand positively from some probable indication, but not negatively, since ordinarily each person is presumed able, cannot contract; unless he has manifested the doubt to the other party and is at least probably potent, from the judgment of physicians.

The reason of the exception is that even then presumption favors him, and therefore he can marry under condition: if I am able, namely from a just cause, lest he be compelled perpetually to remain celibate.¹

Resp. 2. After nuptials have been entered, whether the doubt supervenes or preceded, there is conceded to the spouses an experience of three years, which, according to the truer opinion, begins from attempted intercourse; the faculty being made for them, within this time, of rendering and asking the debt, even if they pour out the seminal humor, beyond intention, outside the vessel; remedies also being employed which, from the counsel of physicians, are judged suitable, and which can be employed without grave danger of life, harm to health, or extraordinary troubles. But if impotence still perseveres after the three years, it is judged perpetual, and therefore every experiment of conjugal intercourse is interdicted, since such spouses from that moment are held as released² (cf. n. 2009, end). Wherefore separation of bed must be made immediately, even by one's own authority.

Putative spouses can cohabit as brother and sister. But if this cannot be done without danger of sin, or scandal, let them be altogether separated.³

Note. "A prudent and discreet Confessor will not ask concerning the impotence of a spouse; nor also will he forewarn those whom he believes impotent; - nor finally will he respond to those consulting him about that matter, unless he himself has first consulted the Bishop." Thus C. Gousset.⁴

2012. Under the name of VOW here comes a solemn vow of chastity, emitted in an approved Religion.⁵

Principle. A SOLEMN vow of chastity freely and spontaneously emitted through profession legitimately made in an approved Religion INVALIDATES matrimony. - This is clear from various places of canon law, and is held as defined in Trent (sess. 24, can. 9): "If anyone shall have said that Clerics constituted in sacred Orders, or Regulars solemnly professed in chastity, can contract matrimony, and that what has been contracted is valid, notwithstanding ecclesiastical law or vow: let him be anathema." Moreover, the Constitution Apostolicae Sedis declares that there lie under excommunication latae sententiae reserved to Bishops or Ordinaries: "Clerics constituted in sacred things, or Regulars or Nuns after a solemn vow of chastity, presuming to contract matrimony; and also all presuming to contract matrimony with any of the aforesaid persons" (cf. n. 1348).

It was said: vow freely emitted; for otherwise the profession would be invalid, nor would there be present a diriment impediment (cf. n. 2147).

IT IS ASKED. By what LAW does a solemn vow of chastity invalidate matrimony?

Resp. It is disputed. The first opinion says that this is done only by ecclesiastical law, "because a solemn vow does not invalidate matrimony by reason of the vow, otherwise also a simple vow would diriment it, but by reason of solemnity; but since solemnity is from ecclesiastical law, therefore matrimony is dirimented by ecclesiastical law alone."⁶ This opinion among more recent authors has become more common. The second opinion, more probable to St. Alphonsus, says that matrimony is invalidated by divine law. "The reason: because in a simple vow the body is only promised to God; but in a solemn vow, through the legitimate acceptance of Prelates, the body is moreover HANDED OVER to God."⁷

Note. From the Bull Ascendente Domino of Gregory XIII, a simple vow of chastity in the Society of Jesus, after two years of novitiate, does not dissolve ratified matrimony; but it is to be equated with a solemn vow insofar as it invalidates matrimony to be contracted, unless the General of the Order has dispensed.⁸

2013. Which ORDER must be called SACRED is clear from what was said in the Treatise on Order (cf. n. 1886).

Principle. SACRED ORDER, freely received, impedes matrimony from being able to be validly contracted. - This is clear from Trent, in the place cited above (n. 2012). - Similarly, they are subjected to excommunication who, with this impediment standing in the way, presume to contract matrimony, just as was said above concerning those bound by solemn vow.

We said: Sacred Order freely received; for if it was received from grave fear, it does not invalidate matrimony: nevertheless, that this may be contracted licitly, there is required a Rescript of grace, or declaration of the Holy See.⁹

IT IS ASKED. By what LAW does Sacred Order invalidate matrimony?

Resp. It is disputed; but the more common and more probable opinion, with St. Thomas, teaches that this is done only by ecclesiastical law. The reason: because the state of Order of itself is not repugnant to the conjugal state, as is clear from the discipline of the Eastern Church¹⁰ (cf. n. 2200).

Note. If some woman spontaneously and freely consented that her husband receive sacred Orders, she cannot, according to the more common and very probable opinion, after her husband initiated in sacred things has died, validly enter a new matrimony. The reason is that the Church, on account of reverence for the Order assumed by the deceased with her permission, renders her unable for a subsequent matrimony. Nevertheless the opinion that such a matrimony is valid, although illicit, "is sufficiently probable"¹¹ (cf. n. 1939, 2).

2014. By this impediment is understood the bond of matrimony by which one spouse is so obligated to the other that, while the latter lives, he or she cannot contract valid matrimony with anyone else. - It is an impediment of divine law; but it is rooted also in natural law, as is clear from what was said concerning the unity and indissolubility of matrimony (cf. n. 1978).¹²

Hence: 1. Second nuptials are prohibited until it has been established certainly concerning the death of the prior spouse.¹³ For in DOUBT, whether positive or negative, the prior marriage possesses. Nevertheless, the matrimony celebrated in such doubt would be valid, if the spouse concerning whose death there is doubt were truly dead, provided true consent is present, although it would be gravely illicit.¹⁴

2. For the moral certitude which law requires, the long absence of one spouse does not suffice, since this alone does not certainly prove that person's death; likewise, mere fame from uncertain rumor does not suffice, since a multitude is accustomed easily to receive all rumors; nor does the affirmation of one witness, since in a matter of so great moment the voice of one is the voice of none. - Nevertheless those indications which, taken singly, do not suffice for furnishing moral certitude, can furnish it if they are taken conjointly.¹⁵ - The cause must be remitted to the Ordinary.

3. If, after matrimony contracted in good faith, doubt supervenes, the doubting party should inquire diligently, so that he or she may thus come to certain knowledge of the matter, and meanwhile abstain from exacting the use of matrimony; although the debt must be rendered to the counterpart asking in good faith. But if afterward it is established concerning the life of the prior spouse, he or she is bound immediately to return to this spouse, leaving the later one. - But if on account of distance that party cannot return, and the impediment is occult, let him or her at least be separated from the putative spouse as regards bed. Then when the prior spouse has died, he or she will be able, through renewal of mutual consent, which must be given in the state of grace, secretly to enter matrimony with the second. But if knowledge of the impediment was public, or could easily become public, the matrimony must be repeated publicly (cf. n. 2081, III).¹⁶

2015. Cognation generally is nearness from generation.

It is distinguished threefold: natural, spiritual, and legal. Each must be treated separately.

DEFINITION. Natural cognation, or CONSANGUINITY, is the nearness of persons, of whom one descends from the other, or all descend from the same near stock, through carnal generation. But it does not matter whether the generation comes from licit or illicit intercourse; nor whether it arises from father and mother at the same time, or from either one alone, as was expressly declared by Innocent I;¹⁷ for matrimony is equally prohibited among cognates and agnates, uterine, consanguine, and full siblings.

That this impediment may be rightly understood, three things in consanguinity must be DISTINGUISHED, namely: 1) STOCK, or the person from whom others descend; 2) LINE, or the series of persons descending from the same stock; 3) DEGREE, or the distance of one person from another in the same line of consanguinity. Moreover the LINE is either direct, in which are placed those persons of whom one descends from the other, as father, son, grandson; or transverse or collateral, by which are comprehended those who are united by conjunction of blood, not because some descend from others, but because they have a common stock; namely mediately, as cousins, or immediately, as brothers. If collaterals are distant from the stock by equal degree, the transverse line is equal; but it is called unequal, if they are distant by unequal degree, i.e. if one is more remote from the common stock. - See the SCHEMA of Consanguinity described below (n. 2020).¹⁸

2016. That degrees of consanguinity may be duly recognized, from canon law the THREE following RULES are established.¹⁹

Rule 1. In the DIRECT line one person is distant from another by as many degrees as there are persons, the common stock being subtracted; or in other words: there are as many degrees as there are generations: e.g. father, son, grandson, and great-grandson are four persons; but only three degrees are numbered, because there are three generations and three persons, the stock being subtracted, namely the father.

Rule 2. In the equal COLLATERAL line, by however many degrees the individual persons are distant from the common stock, by just so many they are distant among themselves. Therefore there are as many degrees as there are generations, or persons on one side, the stock being subtracted. - Hence, brother and sister are in the first degree, paternal cousins and maternal cousins in the second, their children in the third.

Rule 3. In the unequal COLLATERAL line, by however many degrees the more remote person is distant from the stock, by so many degrees they are distant among themselves. - Therefore there are as many degrees as there are generations, or persons with the stock subtracted, in the more remote side.

Note. In civil law, likewise in the Greek Church, both for marriages and for successions, another rule prevails, namely: in the collateral line, there are as many degrees as there are generations from either side; or as many as persons are similarly numbered from either side, with the common stock subtracted. - See, in the SCHEMA, the numbers placed in the lower part of the cells.

2017. Persons can be joined among themselves not only by one bond of consanguinity, but by a MULTIPLE bond, whether from one or from several stocks, according as there is given a single or multiple foundation of consanguinity. But there are THREE CAUSES why the bond of consanguinity is multiplied.²⁰

The first cause of multiplicity is when parents are consanguineous, since their children descend, both through the paternal line and through the maternal line, from a common stock.

        Joannes
       /   |   \
      o    o    o
      |    |    |
      o----o    o
        |       |
     Petrus   Maria

Thus, in the appended figure, Peter and Mary are consanguineous in the third equal degree, and this by a double degree of the collateral line, from the stock, which is John, from whom Peter descends by a double way.

The second cause of multiplicity is when persons consanguineous among themselves, e.g. brothers, have procreated offspring from persons consanguineous among themselves, e.g. from sisters, or cousins. - Hence, if two brothers marry two sisters, their children are consanguineous in a double second equal degree, as the annexed figure demonstrates concerning Joseph and Anna.

          A
        /   \
       o     o
       |     |
          B
       /     \
     o--o   o--o
      |       |
  Josephus  Anna

The third cause of multiplicity is when someone has offspring from several persons consanguineous among themselves. - Thus, e.g. if someone procreated sons from two sisters, these are consanguineous by reason of the father in the first degree, by reason of the mothers in the second.

The nature of cognation having been known, it must now be investigated how it impedes matrimony. - Wherefore let the following be held:

2018. Principles. I. Consanguinity in the DIRECT line invalidates matrimony INDEFINITELY, in whatever degree. - This is clear from the Response of Nicholas I to the Bulgarians, cap. 39.²¹

But by what law it invalidates it has not likewise been defined. That it invalidates it by the law of nature, if consanguinity is in the first degree, all acknowledge, since the relation of subjection by which children are held toward parents cannot be associated with the relation of equality which ought to exist between spouses. Concerning more remote degrees it is disputed: some derive the force of invalidating from the law of nature, others from positive divine law, others finally from merely ecclesiastical law. For the rest, the question, as anyone sees, little regards practice.²²

2019. II. Consanguinity in the COLLATERAL line invalidates matrimony up to the fourth degree inclusive, and no further. Thus it was defined in the Fourth Lateran Council by Innocent III, who restricted this impediment, which formerly was extended up to the seventh degree, to the fourth.²³ But the reason of this law is both the protecting of modesty, "because great access to concupiscence would be furnished, unless carnal intercourse were interdicted among persons who ought to dwell in the same house;"²⁴ and the multiplying of friendship, while the spouse follows the consanguine relatives of the spouse with nearly the same benevolence as his or her own consanguine relatives. Add that through frequent conjunctions from the same cognation, families are weakened.

But concerning the law by which matrimony, on account of the aforesaid impediment, is invalidated, these things must be NOTED: It is certain that in the second and more remote degree, it is invalidated only by ecclesiastical law: whence, if infidels consanguineous in that degree enter nuptials, their nuptials are not, from this title, invalid, as is clear from canon law.²⁵ Concerning the first degree it is not established among Theologians: for some affirm merely ecclesiastical law, others natural law, others finally positive divine law, which last opinion seems more probable.²⁶ Whatever may be the case, it is certain that the Church has never dispensed in that degree, and never is going to dispense; but very rarely does she dispense in the second degree mixed with the first, as is clear from the Letters of Gregory XVI, issued on 22 Nov. 1836.²⁷ See n. 2042, 3.

N. B. Formerly, persons knowingly and freely contracting marriages in prohibited degrees of consanguinity, or affinity, incurred excommunication latae sententiae reserved to no one. From Clementine un. de Consang. et affin. This penalty, through the Constitution Apostolicae Sedis, has been removed (cf. n. 1348).

Schema of Consanguinity

Consanguines on the father's side and on the mother's side.

The printed tree places the person marked N. in the center. The Roman numeral in each cell gives the canonical degree; the Arabic number beneath gives the civil degree.

Schematic transcription of the printed tree:

(in the language: 1 Italian, 2 Spanish, 3 French, 4 German, 5 English.)

Ascendants. - Fourth Degree. - Abavus, Abavia: 1 Trisnonno (trisavolo) - trisnonna (...avola); 2 Tatarabuelo - ...abuela; 3 Trisaieul - ...aieule; 4 Ururgrossvater - ...mutter; 5 Great-great-grand-father - ...mother.

Third Degree. - Proavus, Proavia: 1 Bisnonno (bisavolo) - bisnonna (bisavola); 2 Bisabuelo - ...abuela; 3 Bisaieul - ...ie; 4 Urgrossvater - ...mutter; 5 Great-grand-father - ...mother.

Second Degree. - Avus, Avia: 1 Nonno (Avolo) - ...na (...la); 2 Abuelo - ...la; 3 Aieul (Grand-pere) - Aieule (gr. mere); 4 Grossvater - ...mutter; 5 Grand-father - ...mother.

First Degree. - Pater, Mater...

Descendants. - First Degree. - Filius, Filia: 1 Figlio - figliuola; 2 Hijos - hijas; 3 Fils - fille; 4 Sohn - Tochter; 5 Son - Daughter.

Second Degree. - Nepos, Neptis: 1 Nipotino - ...tina; 2 Nietos - nietas; 3 Petit-fils - petite-fille; 4 Enkel - Enkelin; 5 Grandson - ...daughter.

Third Degree. - Pronepos, Proneptis: 1 Pronepotino - ...tina; 2 Bisnietos - ...tas; 3 Arriere-petit-fils - arr.-petite-fille; 4 Urenkel - ...lin; 5 Great-grandson, ...daughter.

Fourth Degree. - Abnepos, Abneptis: 1 Abnepotino - ...tina; 2 Tartaranietos - ...as; 3 Bisarriere-petit-fils - ...fille; 4 Ururenkel - ...lin; 5 Great-Great-grandson - ...daughter.

Paternal line. - First Degree. - Frater, Soror.

Second Degree. - Patruus (father's brother), Amita (father's sister): 1 Zio, zia; 2 Tio, Tia; 3 Oncle paternel, tante paternelle; 4 Oheim (Vaters Bruder), Tante (Vaters Schwester); 5 Paternal uncle, ...aunt.

Patrueles, or Amitini, ...ae: sons (daughters) of the father's brother or sister.

Third Degree. - Patruus magnus (grandfather's brother), Amita magna (grandfather's sister): 1 Fratello dell'avolo, sorella dell'av.; 2 Hermano del abuelo, hermana del ab.; 3 Frere, soeur de l'aieul; 4 Grossoheim, ...Tante; 5 Great-uncle, great-aunt.

Sobrini, ae: sons, daughters of the grandfather's brother or sister, that is, the father's nephews, nieces.

Fourth Degree. - Propatruus (great-grandfather's brother), Proamita (great-grandfather's sister): 1 Fratello, Sorella del bisavolo; 2 Hermano, ...na, del bisabuelo; 3 Grand oncle, grande Tante; 4 Urgrossoheim (Urgrossvaters Bruder), Urgrosstante (Urgrossvaters Schwester); 5 Great-grand-uncle, ...aunt (Great-grandfather's brother, ...sister).

Maternal line. - First Degree. - Frater, Soror.

Second Degree. - Avunculus (mother's brother), Matertera (mother's sister): 1 Zio, zia; 2 Tio, tia; 3 Oncle maternel, tante maternelle; 4 Oheim, Tante; 5 maternal uncle, ...aunt.

Consobrini, ae, sons (daughters) of the mother's brother or sister.

Third Degree. - Avunculus magnus (grandmother's brother), Matertera magna (grandmother's sister): 1 Fratello, Sorella dell'avola; 2 Hermano, ...na de la abuela; 3 Grand oncle maternel, grande tante maternelle; 4 Grossoheim, ...Tante; 5 Grand mother's brother, ...sister.

Sobrini, ae: sons, (daughters) of the grandmother's brother or sister, that is, the mother's nephews, nieces.

Fourth Degree. - Proavunculus (great-grandmother's brother), Promatertera (grandmother's sister): 1 Fratello, Sorella della bisavola; 2 Hermano, ...na de la bisabuela; 3 Grand oncle, soeur de la bisaieule; 4 Bruder, Schwester der Urgrossmutter; 5 Great-grand mother's brother, ...sister.

More remote Sobrini...

2021. SPIRITUAL cognation is a certain nearness of persons arising from the conferring or receiving of Baptism, or Confirmation. - The reason of nearness is that in both Sacraments there is a spiritual generation, in which he who confers the Sacrament bears the person of God, as of a father; and he who receives the baptized person from the sacred font, or holds the one to be confirmed, bears the person of the Church, as of a mother.¹

I. SPIRITUAL COGNATION is an impediment invalidating matrimony by ecclesiastical law: 1) between the minister of the Sacrament, Baptism or Confirmation, and the subject, and this subject's father and mother; 2) between those lifting up, godfather and godmother, and the subject, and this subject's parents. Thus Trent.² But no cognation is contracted between the minister and those lifting up, nor between the godfather and godmother.³

The persons to whom the impediment extends are stated in the following manner:

The one baptizing, the one baptized, and the parents of the baptized;
The one lifting, the one lifted, and the parents of the lifted.

II. SPIRITUAL COGNATION arises from the office of sponsor validly performed, both in the conferring of Baptism and in the conferring of Confirmation (n. 1484 and 1504). Wherefore two things come to be noted:

1. If someone, from error, receives one infant for another, he more probably contracts cognation, because he is presumed to have wished to receive the one present, whoever he may be, unless he intended another exclusively.⁴

2. If the office of sponsor is exercised by procuration, the one mandating, not the mandatary, contracts cognation, as is clear from the following declaration: "The Sacred Congregation judged that a procurator who receives in the name of another, or has held for Confirmation, does not contract cognation for himself, but for the one mandating." Thus S. C. of the Council, 15 March 1631⁵ and 11 June 1881.⁶

2022. Questions. IT IS ASKED 1. Whether one receiving someone in Baptism conferred under condition CONTRACTS cognation?

Resp. If concerning the first Baptism there is present only a negative doubt, it is certain that cognation is contracted, because no reason stands for the value of the earlier Baptism; and therefore the presumption stands for the value of the later. But otherwise, if concerning the prior Baptism there is had a positive doubt, namely a probable reason concerning its validity.⁷

IT IS ASKED 2. Whether spiritual cognation is contracted from PRIVATE Baptism?

Resp. 1. The Doctors commonly teach that it is contracted by the one baptizing.⁸

2. Concerning the one receiving or lifting there was a place for doubting; but to the question: "Whether the disposition of the Council, cap. 2, sess. 24 de reform. matrim., decreeing that in the Sacrament of Baptism spiritual cognation is contracted between the one receiving, and the father and mother of the one received, has place in Baptism following without solemnities because of necessity?" - S. C. C. judged that the response was to be: Affirmative, on 5 March 1678.⁹ And by this decree indeed the question was solved, but the controversy had not yet been ended, because the decree had not been sufficiently published.¹⁰

IT IS ASKED 3. Whether cognation is contracted from the SOLEMNITIES completed in church after Baptism privately conferred at home?

Resp. Negatively. The reason is that cognation is contracted only from spiritual generation, which is wholly accomplished through Baptism, not through the solemnity of ceremonies. - Thus S. C. of the Council declared many times (13 April 1669 and 2 October 1687).¹¹

IT IS ASKED 4. Whether PARENTS baptizing or receiving their own CHILDREN in Baptism contract the impediment of asking the debt?

Resp. If parents baptize from necessity or from ignorance, it is certain that the impediment is not contracted; indeed, it is sufficiently probable that it is not contracted if they baptize deliberately and apart from necessity, although in this case they sin gravely. The reason for the first is that the prohibition from the use of marriage has the nature of a penalty; but this is not incurred without fault. The reason for the second is that such a penalty is not found expressed in law; whence it is not certainly established concerning it. But in doubt no one is to be despoiled of a right otherwise certain.¹²

Note. 1. Parents baptizing their own illegitimate offspring, even in a case of necessity, certainly contract cognation in order to matrimony to be entered, so that a mother, for example, who baptized an illegitimate son cannot enter nuptials with the father of the son, unless she has obtained a dispensation.

2. Sponsors are accustomed to be chosen from consanguines or from affines; whence, to this impediment very great attention must be paid when the betrothed are consanguineous or affined. And it must be noted that multiple spiritual cognation can exist between them, for example if each has reciprocally received the other's offspring in Baptism, or has held the other's offspring in Confirmation: which must be expressed in the petition for dispensation.¹³

2023. LEGAL cognation is a nearness of persons proceeding from adoption. By reason of this civil nearness, matrimony between certain persons was prohibited by Roman law, on account of modesty and public honesty. The Church rightly preserved this discipline once constituted, and added to it the force of invalidating matrimony, and from this it came about that legal cognation became a canonical impediment.¹

The foundation of legal cognation is adoption made according to the norm of civil law. In Roman law a TWOFOLD adoption is distinguished, namely perfect and imperfect. "Perfect adoption is that by which, by rescript of the Prince, a person sui juris passes into the power and family of the adopter, just as also his children. Imperfect adoption is when it is made without rescript of the supreme Prince, but by the authority of an inferior magistrate; nor does the adopted person pass with his children into the power of the adopter."² But adoption, as it is admitted among modern nations, departs more or less from Roman law, and participates in both, namely perfect and imperfect. Concerning this matter let the following be:

2024. Principles. I. From PERFECT adoption there arises legal cognation invalidating matrimony. Thus all, and it is clear from the response of Nicholas I to the Bulgarians.³ It is said from perfect adoption; for the more probable opinion denies that it also arises from imperfect adoption, since this is rather a way to adoption than true adoption.⁴ But if no public authority intervenes in the adoption, it is certain among all that no impediment arises from it.

2025. II. Legal cognation bears before itself a THREEFOLD SPECIES, namely: of paternity, of fraternity, and of affinity, by reason of which matrimony is INVALIDATED in a diverse manner.

1. By reason of PATERNITY, matrimony is invalidated between the adopter and the adopted person and this person's descendants existing under his power at the time of adoption; and this perpetually, even when the adoption has been dissolved (cf. n. 698).

2. By reason of FRATERNITY, matrimony is invalidated between the adopted person and the children of the adopter; but only for a time, namely so long as the children are under the power of the father, and so long as the adoption has not been dissolved.

3. By reason of legal AFFINITY, matrimony is invalidated between the adopted person and the wife of the adopter, and similarly between the adopter and the wife of the adopted person; and this in perpetuity.⁵

2026. IT IS ASKED. Whether legal cognation arises from adoption, as it is accustomed to be done NOW among diverse peoples, namely without the form of Roman law being observed?

Resp. Affirmatively, if at least the essentials are observed, namely: 1) if the civil laws admit adoption, and 2) if the adoption has been performed according to the manner prescribed by the civil laws. - This is clear from various decisions of the S. Penitentiary: thus, on 17 May 1826, the S. Tribunal declared that through the adoption prevailing in France and legitimately performed, an impediment is induced. And to the DOUBT: Whether adoption celebrated in the form prescribed by the civil Code of the Neapolitan kingdom produces or does not produce the canonical impediment of legal cognation invalidating matrimony? The Congregation of the Holy Office itself, on 23 February 1853, responded: Affirmatively. Yet the persons to whom this impediment extends are always to be computed from the dispositions of Roman law, since this alone is the norm received in the Church.⁶

2027. AFFINITY is the nearness which one contracts with the consanguines of that person with whom he has carnal intercourse so perfect that, of itself, it is apt for generation.

The foundation of this nearness is carnal commingling, through which man and woman become one flesh, and each part is inserted into the cognation of the other part. Hence: 1. Affinity is NOT CONTRACTED from betrothals, nor from ratified but not consummated matrimony, nor from imperfect intercourse, or from other acts however immodest; indeed, it is not contracted "unless the intercourse is consummated on both sides with semination, as they probably teach, with St. Bonaventure and St. Thomas, who says: man and woman are made one flesh through the commingling of seeds: whence... unless the mingling of seeds follows, affinity is not contracted."⁷ 2. But it IS CONTRACTED from perfect intercourse, whether licit or illicit, whether free or coerced, whether had by an infidel or by a faithful person.⁸ Nor does it stand in the way if the persons were sterile or old; provided both have reached puberty. - If it is established concerning intercourse, but there is doubt whether it was perfect or not, it is judged to have been perfect.⁹ Likewise, if it is established concerning conception of offspring having followed, the impediment is certainly present, "however something is said to have been lacking in the very act of conjunction of the man and woman: for, in reality, they have become one flesh, since offspring is conceived from the flesh of the man and woman."¹⁰

2028. Let the following be NOTED concerning these things:

1. The bond of affinity, not otherwise than the bond of consanguinity, can be MULTIPLE; and much attention must be paid to this multiplicity when a dispensation is to be sought. - But this multiplicity arises from a FOURFOLD head, namely: 1) if intercourse has been had with several consanguines of the counterpart; 2) if it has been had with a person joined to the counterpart by a multiple bond of consanguinity; 3) if it has been had on each side with a person consanguineous to the counterpart; 4) if, with a person consanguineous to the counterpart, intercourse has been had both licit and illicit. But see n. 2051, 5.

2. Affinity is CONTRACTED by the man alone with the consanguines of the woman known by him, and by the woman alone with the consanguines of the man with whom she came together; but by no means by the consanguines of one with the consanguines of the other; for affinity does not beget affinity. Nor are the man and woman knowing one another bound by the bond of affinity, but they themselves are the root or stock from which affinity arises. Hence: 1) "two brothers can marry two sisters; indeed father and son can marry mother and daughter." 2) "Titius can successively marry Titia and Berta, who were wives of Caius and Sempronius, brothers;" 3) "Titius, who had married the sister of Caius, can, after the death of Caius and of his sister, marry Berta the wife of Caius."¹¹ 4) Any consanguine of a husband validly and licitly contracts with a consanguine of the wife, and conversely a consanguine of the wife with any consanguine of the husband.

3. Affinity, of itself, does not have LINES NOR DEGREES; but only by reason of consanguinity, after the likeness of which it proceeds; so that, in that line, and in that degree, in which one is consanguineous to one party, in the same line and in the same degree he is affine to the counterpart.

4. Affinity is distinguished as antecedent, which precedes matrimony, and supervening, which follows it, from the fact that the man knows a consanguine of the woman, or from the fact that the woman permits herself to be known by a consanguine of the man. Antecedent affinity alone can be a diriment impediment, since matrimony once rightly entered cannot now be dissolved; yet supervening affinity has its effects, concerning which below (n. 2031, qu. 3).

                         Ascendants

Consanguines of the man                         Consanguines of the woman
          4  3  2  1                                      1  2  3  4
                 \                                      /
                  \                                    /
                   Vir  =======================  Woman
                  /                                    \
          4  3  2  1                                      1  2  3  4

Descendants

Affines in the first and in the second degree.

(1 Italian, 2 Spanish, 3 French, 4 German, 5 English.)

2. Prosocer (grandfather by affinity): 1 Avolo per affinita; 2 Abuelo por afinidad; 3 Aieul par affinite; 4 Grosschwiegervater; 5 Wife's grand-father.

2. Prosocrus (grandmother by affinity): 1 Avola per affinita; 2 Abuela por afinidad; 3 Aieule par affinite; 4 Grosschwiegermutter; 5 Wifes' grandmother.

1. Socer (father of the husband or wife): 1 Suocero; 2 Suegro; 3 Beau-pere; 4 Schwiegervater; 5 Father-in-law.

1. Socrus (mother of the wife or husband): 1 Suocera; 2 Suegra; 3 Belle-mere; 4 Schwiegermutter; 5 Mother-in-law.

1. Vitricus (mother's husband): 1 Padrigno; 2 Padrastro; 3 Beau-pere; 4 Stiefvater; 5 Step-father.

1. Noverca (father's wife): 1 Matrigna; 2 Madrastra; 3 Belle-mere; 4 Stiefmutter; 5 Step-mother.

1. Privignus, ...a (son, daughter from the first matrimony of the father or mother): 1 Figliastro, ...a; 2 Hijastro ...a; Entenado, ...da; 3 Beau-fils, Belle-fille; 4 Stiefsohn, ...tochter; 5 Step-son, Step-daughter.

1. Gener (daughter's husband): 1 Genero; 2 Yerno; 3 Gendre; 4 Schwiegersohn (Tochtermann, Eidam); 5 Son-in-law.

1. Nurus (son's wife): 1 Nuora; 2 Nuera; 3 Bru, Belle-fille; 4 Schwiegertochter (Schnur); 5 Daughter-in-law.

2. Progener (granddaughter's husband): 1 Progenero; 2 Proyerno, marido de la nieta; 3 Mari de la petite-fille; 4 Kindestochtermann; 5 Grand-daughters' husband.

2. Pronurus (grandson's wife): 1 Pronuora; 2 Pronuera; 3 Femme du petit-fils; 4 Gross-Schwiegertochter; 5 Grandson's wife.

1. Levir (brother of the husband or wife): 1 Cognato; 2 Cunado; 3 Beau-frere; 4 Schwager; 5 Brother-in-law.

1. Glos (husband's sister): 1 Cognata; 2 Cunada; 3 Belle-soeur; 4 Schwagerin; 5 Sister-in-law.

1. Fratria (brother's wife): 1 Cognata; 2 Cunada; 3 Belle-soeur; 4 Schwagerin; 5 Sister-in-law (a brother's wife).

1. Sororius (sister's husband): 1 Cognato; 2 Cunado; 3 Beau-frere; 4 Schwager; 5 Brother-in-law (a sister's husband).

2029. Principles. I. Affinity from CONJUGAL intercourse invalidates matrimony up to the FOURTH DEGREE inclusive. - Thus from the Fourth Lateran Council, by which this impediment, formerly extending itself up to the seventh degree, was restricted to the fourth: "since," says Innocent III, "in further degrees a prohibition of this kind now cannot generally be observed without grave detriment."

2030. II. Affinity from FORNICARIOUS intercourse, that is, non-conjugal, invalidates matrimony up to the SECOND DEGREE inclusive, and no further. - Thus from Trent, sess. 24, cap. 4. - Hence: 1) he who has sinned with two sisters or with first cousins by blood, or with a mother and daughter, cannot marry any one of these; 2) he who has sinned with a consanguine of his betrothed in the first or second degree cannot, without dispensation, marry the aforesaid betrothed. - Concerning other things see n. 2032.

2031. Questions. IT IS ASKED 1. To what DEGREE the impediment of affinity extends from INVALID matrimony, but consummated?

Resp. 1. If the matrimony has been consummated in good faith on both sides, the intercourse is to be called materially only fornicary, but formally conjugal: wherefore the impediment is drawn out up to the fourth degree, as is clear from the declaration of S. C. C. in Brixien., 3 December 1667.¹²

Resp. 2. If the matrimony has been consummated in bad faith on both sides, or at least on one side, it is CONTROVERTED: wherefore, in an occurring case, the Holy See must be asked.¹³ But if there is question of a merely civil matrimony, the intercourse is to be held simply as fornicary, so that affinity extends itself only to the second degree. See the Decree of S. C. C. of 13 March 1879, approved by His Holiness Pope Leo XIII on 17 March, and pertaining to the impediment of PUBLIC HONESTY (n. 2034).¹⁴

IT IS ASKED 2. By what LAW does affinity invalidate matrimony?

Resp. By ecclesiastical law, in whatever degree, according to the common opinion.¹⁵ The reason is that the Church dispenses in whatever degree of the collateral line, and even of the direct line, if affinity arises from illicit intercourse.¹⁶ Some formerly taught that matrimony is invalidated by natural law in the first degree of the direct line, if affinity arises from conjugal intercourse. But this today is commonly denied, since the nature of affinity is the same, whether it comes from licit or from illicit intercourse. Nor does it stand in the way that in the first degree of the direct line from conjugal intercourse, the Church does not dispense; for, as St. Thomas says,¹⁷ "Matrimony causes affinity, not only by reason of carnal intercourse, but also by reason of conjugal society, according to which matrimony also is natural" (cf. n. 2042, 4).

Thence it follows that affinity does not obstruct the validity of matrimony among infidels: nor for that reason, without consulting the Holy See, can converts to the faith be separated who, with such an impediment, entered nuptials in infidelity. But affinity contracted in infidelity invalidates the matrimony which affines of this kind would wish to enter after the conversion of either one or of both to the true Faith: because the converted are subject to the laws of the Church, and this is clear from the declaration of the S. Congregation de Propaganda Fide, 23 August 1852.¹⁸

IT IS ASKED 3. What concerning SUPERVENING affinity between spouses AFTER matrimony has been contracted?

Resp. 1. Supervening affinity DEPRIVES the guilty party of the right of asking the debt, when the intercourse was consummated with a person consanguineous to the other spouse in the first or second degree. - But if the innocent spouse asks the debt, at least tacitly, or if he or she is in danger of incontinence, the guilty party is bound to render. But although the obligation of not asking is grave, nevertheless it does not seem to subsist in the case in which the incestuous person himself or herself should be in great danger of incontinence, nor could immediately seek dispensation; because, since the law is only ecclesiastical, it does not oblige with so great an inconvenience.¹⁹ But as regards DISPENSATION, the Bishop can grant it, and indeed by ordinary right, which belongs to him, if not from an express disposition of law, at least from legitimately prescribed custom. And hence it is that he can also delegate this faculty of his in general.

Resp. 2. This impediment of asking the debt does not have the nature of inability, but the nature of a PENALTY; whence from it there EXCUSE both force or grave fear, and ignorance, whether of fact, namely that the person carnally known is consanguineous to the other spouse; or of law, namely that there exists a human law which peculiarly prohibits such incest; or of penalty, which, since it is extraordinary, and therefore cannot be foreseen even confusedly, probably is not incurred. But with this probability standing, the spouse ought not to be deprived of his or her certain right.²⁰ For the rest, in practice, spouses for the most part are ignorant of the penalty incurred, until, after an incest of this kind has been confessed, they have been taught about it by the confessor, as is fitting.

2032. PUBLIC HONESTY is a certain nearness, or quasi-affinity, contracted from betrothals or ratified matrimony with the consanguines of the counterpart. It is an impediment only of ecclesiastical law, but deriving its origin from Roman law, and induced for this reason, because it is congruous to public honesty, especially among Christ's faithful, that, just as from the union of bodies affinity arises, so from the union of souls there should arise quasi-affinity.¹

Principles. I. FROM valid and absolute BETROTHALS public honesty is contracted, invalidating matrimony in the first degree of consanguinity. Thus from Trent, sess. 24, cap. 3, de reform. matrim.

It is said 1. from valid betrothals; for the impediment from betrothals invalid for whatever reason was altogether removed by Trent; it is said 2. and absolute, because a condition appended, so long as it has not been verified, suspends the effect of the betrothals, and imposes only the obligation of awaiting the event (cf. n. 1951, q. 4). The impediment was restricted to the first degree alone, "since in further degrees," says Trent in the cited place, "a prohibition of this kind now cannot be observed without detriment."

Moreover, this impediment is contracted also from occult betrothals, as is clear from the response of the S. Penitentiary, which, being asked "whether from clandestine betrothals the impediment of PUBLIC HONESTY is contracted," responded on 10 September 1834: Affirmatively (cf. n. 2043, Hence 1).

And here it must be noted that an impediment once contracted always endures, even though the betrothals had been dissolved by mutual consent. This is clear from the declaration of S. C. C., 6 July 1658, approved by Alexander VII.²

2033. II. FROM RATIFIED MATRIMONY public honesty is similarly contracted, invalidating matrimony up to the FOURTH degree of consanguinity, inclusive; although, on account of whatever cause, except only defect of consent, the matrimony was INVALID. The reason is that, if from betrothals there arises some nearness, or quasi-affinity, a fortiori it ought to arise from ratified matrimony. But then it extends up to the fourth degree, because the ancient law, in this matter, was not changed by Trent, as St. Pius V declared in the Constitution Ad Romanum, 1 July 1568.

Hence, no impediment is induced from matrimony entered with an insane person, with a drunk person, or entered with error of person, with grave fear, or with fictitious consent, as S. C. C. declared on 28 March 1664.³ Otherwise in other cases. But whether it is induced from matrimony null because of clandestinity is controverted; but the truer and more common opinion, which must be stood by in practice, affirms.⁴

"Here must be NOTED what is had in cap. un. de sponsal. in 6, namely that invalid ratified matrimony does not induce an impediment to the prejudice of prior betrothals. Whence, if someone, after betrothals validly contracted with one woman, marries her sister, before he has intercourse with the second, he can and is bound to contract with the first, since the matrimony was null."⁵

2034. IT IS ASKED. Whether the act which is accustomed to be called CIVIL MATRIMONY produces the impediment of PUBLIC HONESTY?

Resp. Negatively, as is clear from the decree of 17 March 1879, by which Our Most Holy Lord LEO XIII "declares and establishes that the aforementioned act, which is commonly called civil matrimony, in places where the decree of the Council of Trent, sess. 24, cap. 1, de reform. matrim., has been promulgated, whether the faithful fulfilling that act intend, as is fitting, to perform a merely civil ceremony, ecclesiastical matrimony already having been duly celebrated, or with the intention of celebrating it as soon as possible; or intend to enter betrothals concerning the future; or finally, from ignorance, or in contempt of ecclesiastical laws, intend to contract matrimony concerning the present, does not produce the impediment of public honesty."⁶

Note. Since the aforesaid impediment is only of ecclesiastical law, it is not contracted by infidels. Whence, for example, Titius, converted from infidelity to the true faith, can enter matrimony with the sister of Maevia, with whom, while both were infidels, he had contracted matrimony, which nevertheless was not consummated, and was legitimately dissolved, for example by death. Thus the Congregation of the Holy Office, 9 April 1837.⁷

2035. The impediment of CRIME is an inability to contract matrimony, induced by ecclesiastical law, between persons who by nefarious complicity have perpetrated certain crimes determined in law. But there are two crimes, namely adultery and homicide, from which this impediment is contracted, and this in a THREEFOLD case: namely 1) from adultery alone; 2) from homicide alone; 3) from both together. - This threefold case frequently receives its denomination from homicide alone, in these words: 1. neither party perpetrating homicide; 2. both perpetrating; 3. one perpetrating.⁸ But since each case claims peculiar conditions for itself, concerning each in particular we must speak.

2036. Principles. I. By adultery alone, NEITHER PARTY PERPETRATING homicide, a diriment impediment is contracted, if adultery CONCURS with either a promise or an attempted celebration of matrimony. Thus from the title of law De eo qui duxit, cap. 1, 2, 4, 5, 6, 8. But it is REQUIRED that the adultery and the promise or attempted celebration of matrimony should have intervened while the spouse of either adulterer was living, and thus should yield to the injury of matrimony. But it makes no difference whether the promise or attempted celebration of matrimony preceded adultery or followed it, provided that, if it preceded, it was not retracted before the adultery.⁹ Besides, peculiar CONDITIONS are required, both on the part of the adultery and on the part either of the promise or of the attempted celebration.

On the part of the ADULTERY it is required: 1) that it was true, and therefore that the prior matrimony was valid, although it was not consummated, or divorce was made; 2) that it be formal on both sides, namely perpetrated by each party with knowledge of the prior matrimony: wherefore, probably, even culpable ignorance excuses, if it is not affected; 3) that it be perfectly consummated, that is, of itself apt for generation: but this is always supposed in doubt.¹⁰

On the part of the PROMISE, besides the aforementioned connection with adultery, it is required that it was manifested and accepted; whence, it does not suffice if the adulteress held herself merely negatively.¹¹ The more probable and also the more common opinion teaches that it is required that the promise be true, not fictitious; absolute, not conditioned; accepted by some external sign, and not by silence alone, although a re-promise is not required. - But whether a conditioned promise suffices if the condition is verified while the first matrimony is still standing, is indeed commonly affirmed; but St. Alphonsus did not dare to solve the question.¹² "But he who, while his spouse is living, promises matrimony to another, but without adultery and without attempted matrimony, although he does not incur the impediment, nevertheless is not excused from mortal sin."¹³

On the part of the ATTEMPTED CELEBRATION of matrimony it is required that it be made with the consent of both; otherwise it would not be a true attempted celebration. - But it is the same whether it is made in Tridentine form or clandestinely; that civil matrimony also suffices is clear from various decisions of the S. Penitentiary.¹⁴

2037. II. By homicide alone, BOTH PERPETRATING, there arises a diriment impediment when a man and woman HAVE CONTRIVED THE DEATH of the spouse of either, for the end that they may contract matrimony between themselves. This is clear from can. Si quis vivente, 31, qu. 1.

Moreover, to constitute the impediment from conjugicide alone, without formal and complete adultery, it is REQUIRED: 1. That the killing really followed from the physical or moral action, for example from counsel or mandate, of either accomplice; 2. That it followed from mutual conspiracy, or from the common plan of the man and woman; nor does it suffice if someone, hearing of the killing of the spouse, ratifies it; 3. That it was done with the intention of entering matrimony with the accomplice of the homicide; for thus it is most commonly taught, although it is not expressed in law. It indeed suffices that this intention be on the part of one; but it is more probably required that it had first been manifested to the other in some way, at least through certain indications, for example through amorous letters, or familiarities.¹⁵

2038. III. By homicide and adultery together, ONE PERPETRATING homicide, an impediment is contracted when, ADULTERY HAVING BEEN COMMITTED, the man KILLS his own wife, or the wife her own husband, with the intention of marrying the accomplice of the adultery. Thus from the title of law De eo qui duxit, in the cited place.

But for this it is REQUIRED: 1. On the part of the ADULTERY, that it be true, formal on both sides, and perfectly consummated, as was declared above. 2. On the part of the HOMICIDE: 1) that it be consummated, that is, that death truly followed from a blow, poison, etc., given by the spouse or by that spouse's mandate; 2) perpetrated with the intention of marrying the accomplice of the adultery, and that this intention of marrying was in some way manifested to the accomplice. But it is not required that it was committed by common plan: it suffices if one party, the other not knowing, inflicted death.¹⁶

"Hence it is inferred that if a man kills his wife, that he may more freely enjoy an adulteress, or for another cause, even if that woman consented to the homicide, but without intention of matrimony, the impediment is not contracted. - Indeed, if a man kills his wife, that he may marry another indeterminate woman, he can thereafter marry the adulteress. But otherwise, if he kills that he may marry some one of the adulteresses."¹⁷

Concerning the third case, however, it occurs that it must be NOTED that the impediment is incurred directly and principally by the adulterous party who inflicted death upon the spouse. Wherefore, if this party does not contract the impediment, for example because he or she is an infidel, neither is the other party entangled by it. But in the other cases the impediment is incurred directly by the faithful party: whence also the infidel is bound by it indirectly, since matrimony cannot limp.¹⁸

IT IS ASKED whether the impediment of crime is incurred by those who are IGNORANT that it is annexed by law to their delict?

Resp. Some deny, bringing forward this reason: this impediment was induced by way of penalty, and indeed an extraordinary one; but ignorance excuses from incurring such a penalty; therefore it also excuses from contracting the impediment.¹⁹ - But the common and far more probable opinion affirms. The distinguished Giovine brings forward the reason,²⁰ writing: "the impediment of crime was established by the Church not only as a penalty, but especially because it is publicly dishonest and pernicious that matrimony be contracted between those who are guilty of such great crimes." And the most learned De Angelis adds: "With this opinion the practice of the Penitentiary and of the Apostolic Datary especially coheres,... which sufficiently indicates that those Tribunals do not wish to recognize the reasonableness of the aforesaid negative opinion."²¹

To be noted FOR PRACTICE: 1. The impediment of crime can be multiple, and indeed from a TWOFOLD source: 1) because several cases are verified with regard to the same matrimony, for example if adultery and homicide have their own proper conditions separately; 2) because the delicts bring injury to diverse marriages, for example if, in the case of adultery alone, each accomplice is joined in matrimony, and if, with respect to each matrimony, the adultery was formal on both sides. Then a double impediment arises, necessarily to be expressed in the supplicatory libellus, for obtaining dispensation.²²

2. The confessor ought prudently to question those spouses whom he suspects to be guilty of this crime. - Now, those are suspect both who confess that, in the time of a prior matrimony, they fell into adultery; and those who, after the death of the prior spouse, without delay, eagerly flew to new nuptials with some person belonging to the house or family. But that he may prudently question, let him inquire: whether he lived very familiarly with the present spouse, whether he greatly desired that person's nuptials, whether he was wearied of the prior spouse, whether he wished for that spouse's death, whether he believes himself to be in cause why she died, etc.

2039. DISPARITY OF CULT is that disparity of religion which exists between a baptized person and a non-baptized person, even a catechumen.

Principles. I. Disparity of cult INVALIDATES matrimony BY CUSTOMARY ECCLESIASTICAL LAW.²³ Thus all, and it is certain from the Constitution of Benedict XIV Singulari Nobis, issued on 9 February 1749, § 10. But it makes no difference whether the faithful party is Catholic or non-Catholic; whether the infidel party is Jewish, Pagan, or devoted to another sect.

II. Matrimonies of the faithful with infidels, outside the case of urgent cause, are FORBIDDEN by divine law. - This is clear: 1. from the positive prohibition made to the Hebrews, Deut. 7:7; and from the words of the Apostle, 2 Cor. 6:14: "do not draw the yoke with infidels." 2. From reason: for natural law dictates that the danger of sinning must be avoided; but from the aforesaid marriages danger of perversion threatens both the faithful spouse and the offspring to be born; therefore.

It was said: outside the case of urgent cause; for when this exists, and the danger of perversion has been removed, they can be rendered licit, as is clear from various examples of sacred history. Hence it is that the Holy See, when in this impediment it dispenses from grave cause, is accustomed to impose nearly the same conditions which it requires for mixed marriages.²⁴ Recall what was said in n. 1986.

Note. Since Baptism among non-Catholic sects is sometimes doubtful, and therefore great difficulty arises with regard to the validity of matrimony, the following question was proposed to the Congregation of the Holy Office: "Whether Calvinists and Lutherans living in those parts, whose Baptism is doubtful and suspect, are to be held as infidels, so that between them and Catholics the diriment impediment of disparity of cult is to be judged present?

And the S. Tribunal responded on 17 November 1830: "1. As regards heretics whose sects' Rituals prescribe the conferral of Baptism without the necessary use of essential matter and form, the particular case must be examined. 2. As regards others, who according to their Rituals baptize validly, Baptism is to be judged valid. But if doubt persists even in the first case, Baptism is to be judged valid in order to the validity of matrimony. 3. But if it is known certainly that according to the actual custom of that sect there is no Baptism, the matrimony is null."²⁵ This is confirmed from another response of the Holy Office given on 1 August 1883²⁶ (cf. n. 1477, Note).