Question Two: On Impeding Impediments

S. Th., Suppl., q. 53, a. 1; q. 57; q. 59, a. 1, ad 5.

864. There are three impeding impediments: simple vow, legal kinship, and mixed religion.

Formerly several others were reckoned, such as the prohibition of the Church, the closed time, espousals. But the prohibition of the Church is not a juridic impediment established by law, but can impede matrimony only by way of a particular precept (n. 860); time does not impede matrimony but its solemnity; espousals are not a canonical impediment, because they can be urged by no action, but are left to the judgment of conscience, nor do they impede matrimony in every case.

Likewise apostasy from the Catholic faith, enrollment in a society condemned by the Church, and unworthiness from public sin or notorious censure are not true impediments, because matrimony with such persons is not prohibited simply.

865. Principle I. A simple vow impedes matrimony, namely a vow of virginity, of perfect chastity, of not marrying, of receiving sacred orders, and of embracing the religious state. - Thus can. 1058, § 1.

A simple vow (voeu simple; gewone gelofte) is every vow which has not been recognized by the Church as solemn (can. 1308, § 2); which in five cases prohibits matrimony: a) a vow of virginity, or of preserving integrity of the flesh and abstaining from the first consummated carnal act; b) a vow of perfect chastity, or of abstaining from every venereal delectation; c) a vow of not marrying, or of not entering matrimony; d) a vow of receiving sacred orders, namely, the subdiaconate or higher orders; e) a vow of embracing the religious state, which is had in every and only society approved by legitimate ecclesiastical authority, in which the members, according to the proper laws of that society itself, pronounce public vows, perpetual or temporary, yet to be renewed when the time has elapsed, and thus tend to evangelical perfection (can. 487-488).

1. Such a vow is an impediment to matrimony not only of ecclesiastical law, but also of natural and divine law, insofar namely as matrimony can stand in the way of the fulfillment of those vows.

2. It is a merely impeding impediment, for, according to can. 1058, § 2, "no simple vow invalidates matrimony, unless invalidation has been established for some by a special prescription of the Apostolic See," as has been done for the simply professed in the Society of Jesus.

3. Hence if someone nevertheless wishes to enter matrimony, he contracts validly, as St. Thomas explains:

"The promise of some thing does not transfer it into the dominion of the one to whom it is promised. And therefore not by this very fact, that someone promises something, does that thing cease to be in his power. Since therefore in a simple vow there is nothing except a simple promise of one's own body made to God for continence to be preserved, after a simple vow a man still remains master of his own body; and therefore he can give it to another, namely, to a wife, in which giving the sacrament of matrimony consists, which is indissoluble. And on account of this a simple vow, although it impedes matrimony to be contracted, because one contracting matrimony after a simple vow of continence sins, nevertheless because there is a true contract, matrimony cannot by this be diriment... Therefore... as to the manner of binding, matrimony is a stronger bond than a simple vow, because through matrimony the man is actually handed over into the power of the wife, but not through a simple vow...; but the condition of the one possessing is always the stronger" (q. 53, a. 1 and ad 1).

4. Regularly, however, it is a sin to enter matrimony with such a vow, because it is to violate it or to expose oneself to its violation:

a) He who has emitted a vow of virginity or of perfect chastity sins gravely by contracting matrimony, unless he is certain, from the promise or vow of the other party, that he can preserve virginity or perfect chastity in matrimony; otherwise he gravely exposes himself to the danger of violating the vow. He who has vowed perfect chastity cannot ask the conjugal debt unless he has obtained dispensation, 1 but of himself he is bound to render it to one asking with the right of demanding; but when the other party has died the vow fully revives; - he who vowed virginity cannot ask the first time, but after copula has been had he is bound to nothing further, because the vow is impossible of fulfillment and does not revive.

b) He who emitted only a vow of not marrying sins gravely by entering matrimony, because he violates a vow in grave matter; but once matrimony has been entered, he can ask and render the debt as other spouses do, because the obligation of the vow ceases when it can no longer be fulfilled.

1. Eminent Cardinal Gasparri judges, o. c. n. 429-431, that this dispensation is conceded by the law itself in the celebration of matrimony, not indeed in order to contracting it, but only in order to the use of matrimony, and he invokes can. 1111: "To each spouse from the very beginning of matrimony there belongs an equal right and office as regards the acts proper to conjugal life." But this canon, as it has commonly been understood, intends only to suppress the two-month period during which there was a license of denying the conjugal debt; nor does the legislator seem to have thought of dispensation from a vow, which, moreover, does not remove right and office, but only regards the use of the right as far as it is on the part of the one vowing. And thus it seemed to all the jurists whom we were able to consult concerning this matter; and it was affirmed to us that this new interpretation is not conformable to the practice of the Roman curia.

c) One bound by a vow of entering religion or of receiving sacred orders sins gravely by contracting matrimony, because he renders the fulfillment of the vow impossible for himself. Strictly speaking, he ought to ask from the other party license to enter religion or to receive sacred orders; but that party is in no way bound to consent to this. He can render and ask the debt, because he has not vowed chastity; but when the matrimony is dissolved or perpetual divorce has been pronounced, the vow revives.

It is not always easy to establish what vow the faithful have emitted. If their intention is doubtful, let the motive of vowing be explored. He who was moved by the will of declining the burdens of matrimony is presumed to have vowed celibacy; he who was moved by the desire of obtaining a special aureole, virginity; he who was moved by love of purity, chastity.

The impediment ceases when the obligation of the vow ceases, whether from within, or by irritation, dispensation, or commutation (II, n. 732 sq.). Excepting the vow of perpetual and perfect chastity, of entering religion strictly so called with solemn vows, or one emitted in religious profession itself, which are reserved, the Ordinary can dispense from a vow, and also regular confessors.

In practice, it is often better to seek dispensation from the vow.

866. Principle II. Legal kinship, arising from adoption, in those regions where by civil law it renders nuptials illicit, also by canonical law renders matrimony illicit. - Thus from can. 1059.

Legal kinship (parenté légale; wettelijke verwantschap) is the closeness of persons arising from legitimate adoption; it is called legal because it has its origin from the disposition of civil law establishing closeness on account of adoption; adoption is the legitimate assumption of an extraneous person as son or grandson.

The Church in this matter has made the civil law of diverse regions her own and has canonized it, so that in any region an impediment of matrimony from adoption arises or does not arise, is impeding or diriment, and extends to more or fewer persons, according as the civil law establishes there. But since the Church has not only received the law but has canonized it, the impediment does not cease if dispensation is obtained from the civil authority, but dispensation from ecclesiastical authority is required.

St. Thomas shows the fittingness of the impediment, q. 57, a. 2:

"The divine law chiefly excludes from matrimony those persons whom it was necessary to cohabit; lest..., if it were licit to use carnal copula with them, an easy place would be opened to concupiscence, for the restraining of which matrimony is ordained. And because an adopted son is kept in the house of the adopting father, as a natural son, therefore by human laws it has been prohibited that matrimony be contracted between such persons; and such prohibition is approved by the Church. And hence it is that legal kinship impedes matrimony."

It can exist in various degrees:

1. between the adopter and the adopted and his descendants: legal paternity;

2. between diverse adoptive children or even natural children of the adopter: legal fraternity;

3. between the adopted and the wife of the adopter, between the adopter and the wife of the adopted: legal affinity.

But not everywhere does it extend to all these, but according to the various law.

In several regions today there is no impediment of legal kinship: thus in England and its dominions, the Netherlands, Portugal, Austria, Denmark, Sweden, Norway, and several States of America; there exists an impediment, but merely impeding, in Belgium, as the provincial Council of Mechlin declared, n. 210, in France, Luxembourg, Germany, Switzerland, Hungary, Romania, Venezuela; in some places it is a diriment impediment, as will be said n. 910.

867. Principle III. Mixed religion prohibits matrimony from being entered between two baptized persons, of whom one is Catholic, but the other enrolled in a heretical or schismatic sect. - Thus from can. 1060.

Mixed religion (religion mixte; gemengde godsdienst) is:

1° between two baptized persons: for if one is baptized in the Catholic Church, the other not baptized, there is the impediment of disparity of worship; on the contrary, if one is baptized outside the Catholic Church, the other not baptized, no impediment is had;

2° of whom one is Catholic, namely, baptized in order to the Catholic Church or converted to it;

3° but the other enrolled in a heretical or schismatic sect: for it does not suffice that he belongs to a non-religious sect; nevertheless among non-Catholic sects here are counted also atheistic sects (com. int., July 30, 1934). Hence one is considered Catholic who, although he has externally cast off the Catholic faith, has not yet been enrolled in a non-Catholic sect; and therefore he is not held by the canonical impediment when he wishes to enter matrimony with a Catholic woman, but he is held if with one enrolled in a heretical or schismatic or atheistic sect.

Mixed matrimony, as it is customarily called, 1 is not only always an impediment of ecclesiastical law, which "the Church most severely prohibits everywhere" and already from ancient times; but also for the most part an impediment of natural and divine law, on account of communication in sacred things which it imports, or scandal which it easily gives, especially on account of the danger of perversion in faith and morals for the Catholic party and for the offspring to be born. Hence can. 1060 adds: "but if danger of perversion is present for the Catholic spouse and the offspring, the union is forbidden even by divine law itself."

It can nevertheless be licit from dispensation of the Supreme Pontiff, if grave and just causes urge and provided the danger of perversion both of the Catholic party and of the offspring is removed: for the law of the Church prohibiting it is taken away by dispensation, but the natural and divine law ceases to urge if the proximate danger is removed and at the same time a grave reason is present sufficient to make honorable the communication in sacred things. Therefore there is required:

1° Dispensation, and indeed of the Pontiff, to whom, namely, it is reserved, although sometimes it is delegated to a bishop.

2° Just and grave causes, proportionate, namely, to the evil and danger to which such a matrimony exposes one. Such are: the good of the Christian commonwealth, fear of civil matrimony or before a non-Catholic minister, founded hope of conversion of the non-Catholic party, offspring to be legitimated or well educated, scandal or infamy to be avoided.

3° Sufficient removal of danger, as the natural law requires, in which no one has power to dispense. For this the Church requires cautions, because she does not dispense unless

a) the non-Catholic spouse has given caution concerning removing from the Catholic spouse the danger of perversion,

b) each spouse has given caution concerning all offspring to be born - but not concerning offspring already born, as is drawn from the decree of the Holy Office, Jan. 16, 1942 - that they are to be baptized and educated only as Catholics. Those cautions indeed must be given explicitly for liceity, but for validity at least implicitly, i.e., by acts from which it must be concluded, and can be established in the external forum, that the spouses know the obligation of fulfilling the conditions and have manifested a firm purpose of satisfying that obligation (Response of the Holy Office, May 10, 1941).

c) moral certitude must be had concerning the fulfillment of the cautions; for which a bare promise of itself does not suffice.

Thus according to can. 1061, which adds: "cautions regularly are to be demanded in writing," and indeed before dispensation is sought. Indeed in regions in which cautions also have force in the civil forum, provided they are given in civil form, dispensation is not to be conceded unless the cautions have been given in the indicated form; otherwise, namely, a dispensation conceded by those who dispense from indult is invalid (Holy Office, Jan. 20, 1932).

Cautions are always to be demanded, even in danger of death (can. 1043; instr., Nov. 15, 1858; Holy Office, March 18, 1891); otherwise those dispensing from delegation dispense invalidly (can. 1043 and 1061; Holy Office, June 21, 1912 and Jan. 14, 1932). The case is excepted in which, for convalidating matrimony, there is need of sanation in the root, which sometimes is conceded under certain conditions, even if the non-Catholic party does not wish to give the cautions.

1. Ter Haar has written excellently: De matrimoniis mixtis eorumque remediis.

868. Obligations connected with mixed matrimony are recalled to memory by the code of law, and the Catholic spouse is to be warned concerning them:

1° "The Catholic spouse is held by the obligation of prudently taking care of the conversion of the non-Catholic spouse," can. 1062.

2° "Even if a dispensation over the impediment of mixed religion has been obtained from the Church, the spouses cannot, either before or after matrimony entered before the Church, also approach, whether by themselves or through a procurator, a non-Catholic minister as one devoted to sacred things, for giving or renewing matrimonial consent," can. 1063, § 1.

"Nevertheless it is not disapproved that, when the civil law commands it, the spouses stand also before a non-Catholic minister, acting only in the office of a civil official, and this solely for completing the civil act, for the sake of civil effects," can. 1063, § 3.

869. Offices of the pastor. - According to can. 1064: "Ordinaries and other pastors of souls:

1° Let them deter the faithful from mixed nuptials, as much as they can.

2° If they cannot impede them, let them take care with every zeal lest they be contracted against the laws of God and of the Church.

3° When mixed nuptials have been celebrated either in their own or in another territory, let them watch carefully that the spouses faithfully fulfill the promises made.

4° Those assisting at matrimony shall observe the prescription of can. 1102," i.e., they should make the interrogations by which they request and receive the consent of the contracting parties, but abstain from every sacred rite, unless the Ordinary has permitted one for avoiding graver evils, the celebration of Mass always being excluded (n. 852, C).

Nevertheless, "if the pastor knows certainly that the spouses will violate or have already violated this law (of not approaching a non-Catholic minister for giving or renewing matrimonial consent), let him not assist at their matrimony, unless from most grave causes, scandal having been removed and the Ordinary first consulted," can. 1063, § 2. A most grave cause can be the danger of invalid matrimony or of apostasy of the Catholic party or of the education of offspring in heresy.

Let it be permitted to add certain practical points:

a) As regards the dispensation to be conceded, not only the private good of the contracting parties is to be attended to, but especially the common good. And therefore in certain regions there can legitimately exist a practice of rarely conceding dispensation, if this is an efficacious means of generally impeding mixed unions; as also the practice of not conceding dispensation unless after the non-Catholic party has completed an entire course of instruction in Catholic doctrine; - but never to dispense would be against the mind of the Church.

b) If someone without a just cause wishes to enter a mixed matrimony, he sins gravely, and similarly if he almost extorts dispensation by causing fear lest he enter matrimony without dispensation; hence of himself he is unworthy of absolution.

c) From a dispensation conceded there does not always follow full liceity of matrimony. For the Church by prudent counsel sometimes permits lesser evils and dangers of perversion, in order to avoid greater ones, such as apostasy from the faith or long abiding in civil matrimony.

d) A Catholic who illicitly entered mixed matrimony cannot be absolved unless he truly repents and sincerely promises all the cautions required on his part. But if he invalidly contracted mixed matrimony, for example, on account of defect of form, and now truly repents, it must be seen whether the matrimony is to be convalidated or on the contrary whether there is to be abstention from convalidation, as if complete dissolution is to be preferred or civil divorce is foreseen; - otherwise care must be taken that it be convalidated: by renewed consent after due cautions have been given, if possible, or, if the non-Catholic party refuses this, by sanation in the root, provided the Catholic party promises that he will provide according to his powers for the Catholic education of all offspring. But the Catholic party cannot be admitted to the sacraments unless matrimony has been convalidated, or complete separation has been carried out.

e) In doubt concerning the validity of the Baptism of the non-Catholic party, for caution let dispensation be sought not only from the impediment of mixed religion, but also from disparity of worship.

870. Penalties established against transgressors are the following:

A. "Catholics who have dared to enter mixed matrimony, even validly, without dispensation of the Church, remain by the fact itself excluded from legitimate ecclesiastical and sacramental acts until they have obtained dispensation from the Ordinary," can. 2375.

B. "The following Catholics fall under excommunication latae sententiae reserved to the Ordinary:

1° Those who enter matrimony before a non-Catholic minister.

2° Those who are joined in matrimony with a pact, explicit or implicit, that all or some offspring be educated outside the Catholic Church.

3° Those who knowingly presume to offer their children to non-Catholic ministers to be baptized.

4° Parents or those holding the place of parents who knowingly hand over children to be educated or instructed in a non-Catholic religion," can. 2319, § 1.

C. "Those of whom in n. 2-4 are besides suspected of heresy," can. 2319, § 2. Hence if, after being admonished, they do not remove the cause of suspicion, they are to be prohibited from legitimate acts; but if within six complete months from the contracted penalty they have not amended themselves, they are to be held as heretics, subject to the penalties of heretics (can. 2315), among which is excommunication specially reserved to the Holy See.

From the penalty under A and under B, 3° and 4°, every ignorance except affected ignorance excuses.

871. Observations. - 1. Although the Church has not established an impediment properly so called, nevertheless she reproves matrimony of the faithful with apostates, adherents of condemned societies, or public sinners; wherefore she warns:

a) "Let the faithful also be deterred from contracting matrimony with those who notoriously have either cast off the Catholic faith, although they have not passed over to a non-Catholic sect, or are enrolled in societies condemned by the Church," can. 1065, § 1.

b) "Let the pastor not assist at the aforesaid nuptials unless the Ordinary has been consulted, who, after all the circumstances of the matter have been inspected, will be able to permit him to be present at the matrimony, provided a grave cause urges and according to his prudent judgment the Ordinary judges that sufficient provision has been made for the Catholic education of all offspring and for the removal of danger of perversion of the other spouse," can. 1065, § 2.

c) "If a public sinner or one notoriously bound by censure has refused first to approach sacramental confession or to be reconciled with the Church, let the pastor not assist at his matrimony unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary," can. 1066.

A grave cause can be danger of civil matrimony, concubinage, danger of graver damage.