Question — Merkelbach, Summa Theologiae Moralis
Question One: On Impediments in General
S. Th. Suppl., q. 50, a. un.
856. An impediment of matrimony (empêchement de mariage; huwelijksbeletsel) in the strict sense is an external circumstance affecting a person, which by natural or positive law directly bars him from entering matrimony as such validly or licitly, or which renders a person unfit for contracting matrimony validly or licitly. It is said:
1° an external circumstance affecting a person, in order to exclude those circumstances which affect the consent or the form of the contract and thus can impede matrimony, but do not directly impede the persons from contracting matrimony;
2° which by natural or positive law bars, in order to exclude everything which unjustly or by force draws one back from matrimony;
3° directly, so that it may be distinguished from an impediment taken in a broader sense, for everything which even indirectly draws one back from contracting matrimony, as if a father or social authority justly commands something which is incompossible with contracting matrimony; and which in some way can be called a moral impediment, but is not a juridic impediment constituted by law and indeed from direct intention;
4° from matrimony as such, insofar as it is a contract of a special kind: thus it is distinguished from an impediment taken broadly, which does not impede matrimony as it is such a special contract, but insofar as it impedes every contract, for example, defect of consent, or the reception of any sacrament whatsoever, for example, the state of sin or defect of intention or of Baptism;
5° from entering validly or licitly; whence a twofold kind of impediment is distinguished: diriment and merely impeding or prohibiting. This latter, namely, only prohibits the matrimony to be contracted or renders it illicit; but the former prohibits and diriments, i.e., renders it illicit and at the same time invalid.
The merely impeding impediment, namely, prohibits matrimony and effects that it cannot be entered licitly; the diriment one prohibits it and effects that it cannot be entered either licitly or validly. Hence an impeding impediment is a prohibiting law; a diriment impediment is a law prohibiting and at the same time irritating.
Thus conformably to the doctrine of St. Thomas. For some things are of the essence of Matrimony, some of its liceity; and impediments can be opposed to each. Hence impediments which are contrary to those things which are of the liceity of matrimony "do not effect that there is not true matrimony, and such are said to impede matrimony to be contracted, but they do not diriment the contract... But impediments which are contrary to those things which are of the essence of matrimony effect that there is not true matrimony, and therefore they are said not only to impede contracting, but to diriment the contract already made" (q. 50, in c.); not "as though dissolving a true matrimony which has been duly contracted, but because they dissolve a matrimony which has been contracted in fact and not in law." For "if some impediment supervenes upon a matrimony duly made, it cannot dissolve the matrimony" (ad 7).
In the old law, and also in St. Thomas, the word impediment is taken in a broad sense, for everything which impedes matrimony not only on the part of the person but also on the part of the act. Thus force and fear, error, espousals insofar as they impede consent, and after the Council of Trent defect of pastor and witnesses, because it impedes the external form required as a condition of validity; indeed some numbered the omission of banns among impeding impediments, insofar as banns are regularly necessary for the licit celebration of matrimony. But in the new law, as before was suggested by some, impediment is taken for the incapacity of the person alone; 1 hence force, fear, error, espousals, clandestinity, and a fortiori defect of banns are no longer reckoned among impediments.
857. Division of impediments. - Impediments are divided according to various reasons:
A. By reason of cause or origin, some are of natural law, others of positive law, whether divine or human, i.e., both ecclesiastical for the baptized and also civil for the non-baptized.
It belongs to the Church to recognize impediments of natural and divine law, and to assume and sanction them as impediments in the external forum: but by this reason they formally become canonical impediments.
B. By reason of effect, some are impeding impediments (prohibitifs or prohibants; verhinderende or verbiedende), others, as we have already said, diriment (dirimants; ontbindende or ongeldig makende).
"§ 1. An impeding impediment contains a grave prohibition of contracting matrimony; yet matrimony is not rendered invalid if, the impediment notwithstanding, it is contracted.
"§ 2. A diriment impediment both gravely prohibits matrimony to be contracted and impedes it from being contracted validly."
C. By reason of extension, impediments are absolute, which impede every matrimony with all persons, such as age, bond, vow, order; or relative, which impede it only with certain persons, such as crime, kinship, disparity of worship.
But some are correlative, which exist on the part of each, such as crime or consanguinity, while some are on one part only, such as order or disparity of worship. Nevertheless, can. 1036, § 3 says: "Although an impediment exists on one part only, nevertheless it renders matrimony either illicit or invalid," because, namely, matrimony does not limp.
D. By reason of duration, they are perpetual, which of themselves never cease but always remain, such as consanguinity; or temporary, which cease or can cease by the course of time, such as age or mixed religion.
Perpetual impediments can be taken away only by dispensation, provided they are dispensable. Dispensable are those in which the Church can and is wont to dispense; but indispensable are those in which she cannot or is not wont to dispense. From impediments of natural and divine law she cannot dispense; from impediments of ecclesiastical law she can dispense, but from a few she does not dispense.
Indispensable are: impotence, bond, consanguinity of the direct line; probably consanguinity in the first degree of the collateral line, and the episcopal order; very rarely is dispensed the order of priesthood, affinity in the direct line especially when matrimony has been consummated, crime from killing a spouse especially public; rarely, abduction, affinity in the direct line when matrimony has not been consummated, age, unless perhaps in certain regions of the missions in a case of doubtful age; less rarely, a solemn vow and sacred order below the priesthood.
No human power, neither civil nor ecclesiastical, can establish an absolute and perpetual impediment, because it is against the natural right which each person has natively to marry; - unless, however, there is supposed some free act by which someone has chosen a more perfect state, through vow or order, and thus has implicitly renounced matrimony, or by which he has committed some crime which would fittingly be punished by prohibition of matrimony.
E. By reason of divulgation and demonstrability, they are public or occult. They are public if in fact they can be proved in the external forum, although by their nature they are occult; but occult if in fact they cannot be proved, although by nature they are public.
Thus conformably to can. 1037: "An impediment is considered public which can be proved in the external forum; otherwise it is occult," and to the response of the com. int., June 25, 1932.
"Of lesser grade are: 1° consanguinity in the third degree of the collateral line (perhaps also mixed with the second or first); 2° affinity in the second degree of the collateral line; 3° public honesty in the second degree; 4° spiritual kinship; 5° crime from adultery with promise or attempted celebration of matrimony even by a civil act alone" (ibid., § 2).
There is no reason in law for this division to be applied to impeding impediments; hence § 3: "Impediments of greater grade are all the others."
858. Observation. - To matrimony, before the other sacraments, impediments are assigned insofar as it is a contract and is entered between two. Hence St. Thomas, ad 1: "Impediments are assigned to matrimony more than to the other sacraments for three reasons: 1° because matrimony consists in two, and therefore it can be impeded in more ways than the other sacraments, which belong singularly to one person; 2° because matrimony has its cause in us and in God, but certain other sacraments only in God; 3° because concerning the other sacraments there is precept, or counsel, as concerning more perfect goods; but concerning matrimony there is indulgence, as concerning a less perfect good. And therefore, that an occasion of advancing to something better may be given, more impediments are assigned to matrimony than to the other sacraments."
859. Principle. With the impediments of natural and divine law preserved, the Church herself and alone has the power of establishing impediments, not only impeding but also diriment, for the marriages of Christians; just as, on the contrary, the civil authority has this for the marriages of unbelievers.
That the Church can establish diriment impediments is defined as of faith in the Council of Trent, sess. 24, can. 4; that she can do this by her own right is established from the condemnation of prop. 59 of the Synod of Pistoia; that she alone can do it, to the exclusion of civil authority, seems sufficiently certain, but in the sense explained above in n. 824, where also the competence of the civil power was spoken of with respect to the unions of unbelievers.
Nor should you say that the Church, in the decree of the Council of Trent, can be understood as the assembly of the faithful or the Christian princes themselves. For where there is question of power and of doctrine, the Church designates only the prelates who from the institution of Christ have received the power of ruling and teaching; as is clear, moreover, from the context and from the erroneous doctrine of the Protestants which is reproved.
Consequently, with regard to those impediments which she establishes, the Church enjoys the power of abrogating, derogating, changing, and dispensing (can. 1040).
860. The active subject of the ecclesiastical power of authentically declaring, establishing, or relaxing matrimonial impediments, of themselves are those to whom by divine law belongs the power of ruling and teaching the Church, namely, the Supreme Pontiff and the bishops; nevertheless in the course of time it has come about that the constitution of an impediment was reckoned among the greater causes, which were reserved to the supreme ecclesiastical authority and withdrawn from the power of individual bishops or particular councils: to bishops there remains only the power of commanding in a particular case. Thus also in the code of law:
1° Can. 1038: "§ 1. It belongs only to the supreme ecclesiastical authority authentically to declare when divine law impedes or diriments matrimony.
"§ 2. To the same supreme authority belongs exclusively the right of constituting other impediments impeding or diriment of matrimony for the baptized, by way of universal or particular law."
The supreme authority in the Church is an ecumenical Council, and the Supreme Pontiff either immediately by himself or through the organ of the Sacred Roman Congregations.
2° Can. 1039: "§ 1. Local Ordinaries can forbid marriages to all actually staying in their territory and to their subjects even outside the boundaries of their territory in a particular case, but only for a time, from a just cause and while it continues.
"§ 2. Only the Apostolic See can add an invalidating clause to a prohibition."
Therefore bishops cannot prohibit matrimony by way of law, but only by way of precept in a particular case and only for a time, and indeed under grave matter, but from a just cause; they cannot, however, invalidate it. A just cause can be: scandal to be avoided, quarrels or discord to be forestalled, grave inconveniences to be avoided, suspicion of an impediment, the opposition of a third person against the matrimony. Indeed even the pastor, not directly and judicially, but nevertheless by his office, can indirectly prohibit the celebration of matrimony for a time, insofar as by office he provisionally forbids it until the Ordinary pronounces.
3° Can. 1040: "Except the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impeding or diriment, or derogate from them; likewise neither can anyone dispense in them, unless this power has been conceded by common law or by a special indult from the Apostolic See."
861. The passive subject of impediments are those who are subject to the law establishing impediments and are bound by these. Now:
1° All men, both unbelievers and faithful, are bound by impediments of natural or divine law.
2° By canonical impediments or those of ecclesiastical law are bound:
a) All baptized persons, not only Catholics, but also heretics, schismatics, apostates, excommunicated persons.
For of themselves they are subject to the laws of the Church, especially those which directly regard the common good of the Church, as are matrimonial impediments; unless the contrary is expressly declared, as has been done for the impediment of disparity of worship, and for the juridic form of matrimony, in favor of those who have been baptized outside the Catholic Church.
b) Unbelievers after Baptism has been received are affected not only by those impediments which have arisen after Baptism, but also by those whose cause was posited before and whose foundation is a natural bond.
For the natural bond endures and therefore after Baptism produces its effects: thus, for example, the bond of consanguinity. On the contrary, if the whole reason of the impediment is in the will of the Church, the impediment does not arise, as spiritual kinship.
3° Unbelievers who contract matrimony with a faithful person are indirectly and per accidens reached by canonical impediments (can. 1036, § 3), because matrimony does not limp.
In the same way, baptized persons who contract with an unbeliever perhaps are indirectly bound by the civil impediments by which unbelievers are held (n. 826).
862. An impediment unknown, impossible to observe, doubtful.
A. Invincible ignorance, although it can excuse from sin or penalty, nevertheless does not excuse from a diriment impediment, because it cannot restore the ability which the law has taken away.
For can. 16, § 1 says: "No ignorance of irritating or incapacitating laws excuses from them, unless something else is expressly said."
B. The impossibility of observing an impediment does not excuse from it in a particular case, because the common good on account of which impediments have been passed is superior to private good; but if it should be common, from epikeia it seems that the impediment does not oblige, in a case in which it would become harmful to the community, which indeed can rarely happen.
Some nevertheless admit epikeia in one or another exceptional case of particular necessity.
C. A doubt is understood as one which remains grave and founded concerning the existence of an impediment after a diligent inquiry into the truth; but a doubt can be of law or of fact, indeed of natural and divine law, or of ecclesiastical law alone. Now:
1° In a doubt concerning an impediment of natural or divine law, it is illicit to contract matrimony, because it is to expose it to the danger of nullity, since the Church cannot dispense in natural and divine law. Namely, systems of probability do not come to be applied in the case, because there is not question of honesty alone but of the validity of the act (II, n. 90-91).
There is an exception if the doubt concerns the impediment of impotence, because everyone is presumed by nature to be apt for matrimony, until the contrary is established. Hence they say that the native right of man to marry always prevails. 1 Hence can. 1068, § 2: "If the impediment of impotence is doubtful, whether by doubt of law or by doubt of fact, matrimony is not to be impeded."
- With the right of a third party preserved, however; hence in a doubt concerning the impediment of bond, or of the bond still enduring from a previous matrimony, a new matrimony cannot be contracted.
2° In a doubt concerning an impediment of ecclesiastical law:
a) In a doubt of law, matrimony can be contracted, because the impediment does not urge, for "laws, even irritating and incapacitating ones, in a doubt of law do not urge," can. 15.
In practice, however, the pastor must have recourse to the Ordinary, because he could falsely judge that there is a doubt of law; hence can. 1031, § 1, 3°: "Let him not assist at matrimony, without the Ordinary having been consulted, if he has prudently judged that the doubt still remains."
b) In a doubt of fact, matrimony cannot licitly be contracted, because it is to expose it to the danger of nullity; rather dispensation is to be sought, in the case in which the Church dispenses.
Let it be noted according to can. 15: "But in a doubt of fact the Ordinary can dispense in them, provided there is question of laws in which the Roman Pontiff is wont to dispense."
863. Corollaries. - Since the laws concerning matrimonial impediments do not have retroactive force, hence:
1° Marriages of unbelievers validly entered, by the reception of Baptism, are not dissolved because the unbelievers are now bound by ecclesiastical laws which establish canonical impediments.
2° Marriages entered before the new legislation of the code, namely, before May 19, 1918, are ruled by the law in force at the time at which they were entered (com. int., June 2, 1918).
3° Hence those invalidly entered do not become valid by the very suppression of impediments, just as those validly entered do not become invalid on account of a new impediment established.