Article VIII: On Affinity and Public Honesty

S. Th., Suppl., q. 55.

911. Matter to be treated. - Besides the propinquity or conjunction of persons among themselves, there can be propinquity and an impediment of matrimony by reason of a third person conjoined; and if that person is legitimately conjoined through a valid matrimony, affinity arises; if that person is conjoined in some other way and not through valid matrimony, there can arise public honesty repelling from matrimony.

912. Affinity (affinité, alliance; aanverwantschap) is the propinquity or conjunction of persons arising from valid matrimony, - whether ratified, or ratified and consummated, - between the man and the blood-relatives of the woman, and conversely between the woman and the blood-relatives of the man. The foundation is true and valid matrimony, not only consummated but, according to the new law, also ratified (can. 97).

According to the mind of St. Thomas, a. 1, this can be shown thus:

"1° Husband and wife are made one flesh. Therefore if the man according to the flesh is related to all his blood-relatives, the woman by the same reason will be related to the same...

"2° A certain natural friendship is founded upon natural communication. But natural communication is in two ways, according to the Philosopher, VIII Eth., 12: in one way, through the propagation of flesh; in another way, through conjunction ordered to the propagation of flesh. Hence he himself says that the friendship of husband toward wife is natural." Hence, just as a person conjoined to another through the propagation of flesh makes a certain bond of natural friendship, so also if he is conjoined through matrimony. But "in this it differs, that a person conjoined to someone through the propagation of flesh, as a son to his father, becomes a participant of the same root and blood; whence by the same kind of bond the son is joined to the blood-relatives of the father, by which the father was joined, namely consanguinity"; but a person conjoined through matrimony "does not become a participant of the same root, but as it were one adjoined extrinsically, and therefore from this there is effected another kind of bond, which is called affinity."

Nevertheless the spouses themselves are not affines between themselves, but they are the principle of affinity, and as it were the stock from which the degrees of affinity are numbered and computed, for "the conjunction of husband and wife is stronger than the conjunction of the wife to the blood-relatives of the husband; nor ought it to be called affinity, but matrimony, which is a certain unity (one flesh), just as a man is the same to himself, not consanguineous" (ad 1). But affinity has force only between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man, and indeed in the same line and the same degree in which they are blood-relatives (can. 97, §§ 2 and 3); whence the blood-relatives of either spouse are not affines among themselves.

Hence, for recognizing and computing affinity, three rules are established:

1. Affinity does not go beyond those joined by copula, because it does not flow to the blood-relatives of each spouse among themselves.

2. Affinity does not beget affinity, because it is not extended to the affines of the spouse, but only to that spouse's blood-relatives.

3. Those who are blood-relatives of one spouse are the same, in the same line and degree, as affines of the other, because they are affines of the one by reason of consanguinity to the other. Thus a man is affine with the mother of his wife in the first degree and with her grandmother in the second degree of the direct line, with the sister of the wife in the first, and with the niece in the second degree of the collateral line.

913. Principle I. Affinity in the direct line dirimently impedes matrimony in any degree, or indefinitely; in the collateral line up to the second degree inclusive. - Thus can. 1077, § 1.

The reason for the impediment is similar to that on account of which matrimony is impeded among blood-relatives of the collateral line, namely reverence and the restraining of concupiscence among familiars and those dwelling together, and friendship to be extended to outsiders. St. Thomas says, a. 6:

"Affinity preceding matrimony impedes matrimony to be contracted and dirimently annuls a contracted one: for the same reason as also consanguinity. For just as there is a certain necessity of dwelling together among blood-relatives toward one another, so also among affines. And just as there is a certain bond of friendship among blood-relatives, so among affines." "Whence affinity... would be contracted by the matrimony which was to be contracted with an affine, insofar as it would impede the multiplication of friendship and the repression of concupiscence, which are sought through matrimony" (ad 1).

The impediment is not of natural law, but of positive law, not divine but ecclesiastical, even in the first degree of the direct line, since in this case also the Church sometimes, though most rarely, dispenses. Hence, although affinity arises from valid matrimony among unbelievers, nevertheless from this there does not arise the impediment of affinity, unless the civil law has established the same; but if both are baptized, the matrimony by that very fact is ratified and the impediment of ecclesiastical law arises; but if one is baptized, for that one the impediment arises with respect to the blood-relatives of the other party (cf. Response of the Congregation of the Holy Office, Jan. 16-31, 1957).

According to present-day discipline, can. 1077:

1° The impediment extends in the collateral line only up to the second degree inclusive.

2° It is multiplied only a) as often as the impediment of consanguinity from which it proceeds is multiplied, i.e., as often as between the spouse and that spouse's blood-relatives there is a multiple common stock; b) by repeated successive matrimony with a blood-relative of the deceased spouse.

Let it be noted that between two persons affinity can be present together with consanguinity: if someone enters matrimony with a blood-relative, at the same time he becomes affine with his own blood-relatives.

914. Corollaries. - From the preceding the following can be deduced:

1° The blood-relatives of the husband validly and licitly contract matrimony with the blood-relatives of the wife, and these conversely with those.

2° Two brothers can marry two sisters; indeed a father and son can marry a mother and daughter.

3° A stepson can marry the mother, daughter, or sister of his stepmother; and conversely a stepdaughter can marry the father, son, or brother of her stepfather.

4° The surviving spouses of a deceased brother and sister can contract matrimony between themselves.

5° The son of the husband and daughter of the wife, generated from a preceding matrimony, can enter marriage between themselves.

6° Successively it is lawful to marry two widows whose deceased husbands were full brothers.

915. Public honesty (honnêteté publique; openbare eerbaarheid) or quasi-affinity is a certain propinquity or conjunction of persons, arising from a union which has a likeness with the perfect matrimony from which true affinity arises. It is called public honesty, because it agrees with public honesty that matrimony not be entered with the blood-relatives of a person with whom there has been so intimate a public conjunction (a. 4).

In the old law this impediment arose from valid betrothals and from ratified matrimony even if invalid; in the new law from betrothals no canonical impediment now arises, while from ratified but valid matrimony, though not consummated, affinity arises. But the impediment of public honesty now arises from invalid matrimony and from public and notorious concubinage, because each union has a likeness with valid matrimony, which founds affinity.

916. Principle II. The impediment of public honesty arises from invalid matrimony, whether consummated or not, and from public or notorious concubinage; and it dirimently impedes nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely. - Thus can. 1078.

Therefore the impediment arises:

1° From invalid matrimony even if not consummated.

Therefore from invalid matrimony on account of any defect whatever, even of consent; but not from merely civil matrimony, for those who are subject to the juridical form required by the Church, unless, however, cohabitation is present (com. int., March 12, 1929).

2° From public or notorious concubinage.

Concubinage is carnal and habitual commerce, from an express or tacit agreement, between this man and that woman, covered by no appearance of a matrimonial bond. It is public if it is already spread abroad, or is situated in such circumstances that it can and ought prudently to be judged that it will easily be spread abroad. It is notorious either with notoriety of law, which has place after a sentence of a judge which has passed into a res judicata, or after a confession of the delinquent made in court; or with notoriety of fact, if the delict is publicly known and cannot be concealed by any tergiversation (can. 2197).

3° In the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely.

Therefore it no longer dirimently impedes matrimony with the blood-relatives of the partner in the collateral line. Hence one invalidly joined, or a public or notorious concubinary, can enter matrimony with the sister and first cousin of the putative wife or concubine, but not with the mother or grandmother, nor with the daughter or granddaughter of the partner.

The impediment: 1) is of ecclesiastical law, whence it does not affect unbelievers contracting among themselves;

2. is perpetual: it is not taken away if the matrimony or concubinage ceases by death or separation, nor probably if it is converted into valid nuptials; in which case in the first and second degree of the direct line there would be a double impediment, namely of affinity and of public honesty;

3. is multiplied, if either party has entered invalid matrimony or public concubinage successively with two or more blood-relatives, in the first or second degree of the direct line, of the other party. This, however, is not explicitly affirmed in the Code.

917. Observations. - 1. The impediments described, since they are of ecclesiastical law, do not directly reach unbelievers, but only indirectly by reason of the faithful party. But if both are baptized while the union endures, the impediment arises. If the conjunction is entered between a baptized and a non-baptized person, or if during the conjunction one is baptized, the impediment of public honesty arises between the baptized person and the blood-relatives, even non-baptized, of the other party, indeed between the non-baptized person and a baptized blood-relative of the baptized other party; - but whether the impediment of affinity also arises is disputed: many deny it, because affinity arises from ratified matrimony, but in the case a sacrament is not yet present; others affirm it, because ratified matrimony in that part of the Code is to be understood in a broader sense of every valid matrimony, otherwise from invalid matrimony between such persons the impediment, namely of public honesty, would arise, but from valid matrimony none! The matter cannot be determined with certainty, because of the imperfect manner of speaking of the Code. Likewise, if the union has already been dissolved and one is baptized, it can be disputed whether the impediment is incurred; but this seems rather to be denied, because the foundation of the impediment does not persist.

2. Thus in the new law. In the ancient law these impediments were very different. Affinity arose not from matrimony but from perfect copula, whether licit or illicit; and it dirimently impeded matrimony in the direct line indefinitely, in the collateral line up to the 4th degree if it arose from licit copula, up to the 2nd if from illicit copula. But public honesty arose from valid and absolute betrothals, and from ratified matrimony, valid or invalid unless from defect of consent: from betrothals it dirimently impeded matrimony with the blood-relatives of the other party in the 1st degree in either line; from ratified matrimony even invalid up to the 4th degree. According to the ancient law the validity of marriages entered before May 19, 1918 is to be judged.

3. The impediments can be taken away by dispensation. Yet very rarely does the Church dispense from affinity in the 1st degree of the direct line, especially from licit copula; in the collateral line, especially in the 2nd degree, quite easily, and the dispensation is valid even if in the petition or concession an error concerning the degree has crept in, provided the degree really existing is inferior, or even if another impediment of the same species in an equal or inferior degree has been kept silent (can. 1052). A dispensation from public honesty in the 2nd degree is also easily conceded; indeed, for a grave cause in the 1st degree, provided, according to can. 1076, § 3, there is no doubt that one party is the offspring of the other.