Article — Merkelbach, Pastoral Questions
Article X: Affinity
- I. Notion.
a) Affinity, in the new law, is the propinquity of persons which "arises from a valid matrimony, whether ratified only or ratified and consummated," and which "exists only between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man." (Can. 97, §§ 1 and 2.)
b) "It is so computed that those who are consanguineous with the man are, in the same line and degree, affinities of the woman, and vice versa." (ibid., § 3.)
- II. Extension of the impediment.
a) "Affinity in the direct line makes matrimony diriment in any degree; in the collateral line up to the second degree inclusive."
b) "The impediment of affinity is multiplied:
1° As often as the impediment of consanguinity from which it proceeds is multiplied."
That is, as often as between the counterpart and his or her blood-relatives there is a multiple common stock.
"2° By matrimony being repeated successively with blood-relatives of the deceased spouse." (Can. 1077.)
- III. By what law affinity is an impediment.
a) Without any doubt it is of merely ecclesiastical law, even in the first degree of the direct line.
b) This is clear both from the modern concept of affinity, which constitutes a merely legal bond, and from declarations of the S.S.C.C. already issued under the prior law and which have greater force concerning affinity as it is now established in law.
c) Therefore unbelievers contracting among themselves are not held by such an impediment, as being immune from ecclesiastical law, unless nevertheless the civil law establishes a similar impediment.
- IV. From what matrimony affinity arises.
a) Although some contradict, it seems certain that affinity does not arise from the matrimony of non-baptized persons. This is gathered from the tenor of the law itself. For it "arises from a valid matrimony, whether ratified only or ratified and consummated." (Can. 97, § 1.) But the Code itself, by the name of ratified matrimony, designates only the matrimony of baptized persons. (Cfr. Can. 1015, § 1.)
b) From the matrimony of a faithful party with an unbeliever, even when celebrated with the impediment of disparity of worship dispensed, affinity does not arise, since, as we said above at n. 23, such a matrimony is not a sacrament.
And, notwithstanding the contrary opinion of several, this sentence is altogether safe in practice, since a doubt of law makes the impediment null. (Can. 15.)
c) If from two unbelieving spouses only one is converted, affinity does not arise on that account. But it arises by the fact itself when both have been converted and baptized, because the matrimony by that very fact becomes ratified and a sacrament.
- V. Dispensation.
a) In the first degree of the direct line, when the matrimony has been consummated, and with legitimate blood-relatives of the deceased spouse, the Church never dispenses.
b) In the collateral line it is easily dispensed. And with regard to affinity in the second degree, the law counts that impediment among the lesser ones. (Can. 1053.) Cfr. above n. 97.
c) A dispensation is valid if, in the petition or concession, an error concerning the degree has crept in, provided that the degree really existing is inferior, or even though the multiplicity of the impediment in an equal or inferior degree has been passed over. (Can. 1052.)
VI. Law before the Code.
- a) For the pastor of souls and for the confessor, knowledge of the ancient law still remains necessary. For although the impediment of affinity, such as the law in force before the Code had established, has now been altogether abolished, nevertheless its force in some way perseveres with respect to matrimonies celebrated before the day 19 May 1918. For these matrimonies, if they were celebrated with a diriment impediment then existing, are and remain invalid. To convalidate such a matrimony invalid from law now suppressed, no dispensation indeed is required, but renewal of consent from the part at least of the spouse who is conscious of the impediment.
- b) Notion of affinity.
- It was the propinquity of persons arising from perfect copula alone, licit or illicit, and existing between the man and the blood-relatives of the woman, and vice versa between the woman and the blood-relatives of the man.
- Perfect copula is that by which the man penetrates the woman's vaginal passage and pours forth true semen in it.
- c) Extension of the impediment.
It made matrimony diriment in any degree of the direct line. In the collateral line, to the fourth degree inclusive if from licit copula; to the second inclusive, if from illicit copula.
Copula had in a putative matrimony most certainly, and more probably also in a union which had the species and figure of matrimony, was equated with licit copula with respect to the generation of the impediment.