Article — Noldin, Summa of Moral Theology
Article Five. On the Mode of Granting and Executing Dispensation.
621. On the Mode of Granting Dispensation. 1. Dispensations are granted either in commissory form or in gracious form. They are said to be granted in commissory form if to someone there is committed the delegated faculty of executing the dispensation; they are said to be granted in gracious form if the superior himself (the Holy See, the bishop) grants the full dispensation and imposes on another only the mandate of communicating officially with those dispensed concerning the dispensation made.1
a. In occult impediments, dispensation is customarily granted in commissory form both by the Holy See and by bishops. In public impediments, dispensations are customarily given by the Holy See in commissory form, but by bishops rather in gracious form.
b. For judging the value of the dispensation, attention must be paid to the form in which it is granted: for in order that a dispensation be valid, the causes alleged in the supplicatory petition must be true at the time at which the dispensation is granted. Hence if a dispensation is granted in commissory form, the causes must be true when the commissary executes the dispensation; and if a dispensation is granted in gracious form, the causes must be true when the curia, whether Roman or episcopal, dispenses.2
Dispensations are granted either for the external forum or for the internal forum. Between these two kinds of dispensations a twofold difference must be noted: a. dispensations for the external forum are committed by the Holy See to the ordinary for execution; but dispensations for the internal forum are committed to a confessor to be chosen by the petitioners; b. some conditions and clauses are those under which dispensations for the external forum are granted, and others those under which dispensations for the internal forum are granted.
In the old law one who was entangled by censure, even occult censure, was incapable of receiving the favor or dispensation of the Holy See. Therefore absolution from censures was premised as a precaution before communication of the pontifical favor. But now even those who are entangled by some censure can validly obtain rescripts of favor, only those being excepted against whom a declaratory or condemnatory sentence has been issued. After a sentence of this sort has been issued, they must first be absolved from censures in order that they can validly receive a rescript of the Holy See, unless mention of the censure is made in the pontifical rescript.3 For this reason, in the faculty of dispensing granted habitually there is also conferred the power of absolving from censures, but only for the effect of obtaining the dispensation.4
1 The Holy See grants matrimonial dispensations in a threefold diverse mode. Sometimes it itself confers the full dispensation, so that no execution is needed (in gracious form). Sometimes it grants the faculty of fully dispensing, in which case the delegate himself completes the whole business of dispensation (the dispensation and the execution). If a dispensation is granted in commissory form, the Holy See confers the dispensation itself, but the execution of the dispensation is committed to the delegate (therefore commissory form). In this case the dispensation does not obtain effect before execution; nevertheless, in executing it, the delegate cannot proceed according to his judgment, but exercises a bare ministry.
2 Cn. 41; cf. however Cn. 1054.
3 Cn. 2265, 3.
4 Cn. 66, 3.
622. On the Commissary or Executor of Dispensations which are granted for the external forum, from recent law these things must be noted.1
a. Dispensations committed to the ordinary of the petitioners must be executed by the ordinary who gave the testimonial letters or transmitted the prayers to the Holy See, even if the betrothed, at the time when the dispensation is to be given to execution, have departed into another diocese and are not going to return. Nevertheless the ordinary of the place in which they desire to contract matrimony must be advised.2
b. Dispensations committed to the ordinary can also be executed by his vicar general and, when the see is vacant, by the vicar capitular.
c. The vicar capitular can also execute dispensations remitted to the (deceased) bishop or to his vicar general and not yet mandated to execution. Dispensations remitted to the vicar capitular while the see is vacant can be executed by the successor bishop and his vicar general.
d. The ordinary by whom the dispensation must be executed can also delegate to another the power of executing it, especially to the ordinary in whose diocese the betrothed are actually staying, unless subdelegation has been prohibited.3
1 S. Office, February 20, 1888, by command of Leo XIII. Cn. 1035.
2 Cn. 1035.
3 Cn. 57.
623. On the Mode of Executing Dispensations Granted for the External Forum. 1. The faculty of dispensing from an impediment of matrimony cannot validly be exercised before the rescript of the given faculty has been received; nor does knowledge of the given faculty received from elsewhere suffice, e.g., by telegraph, unless it has been transmitted officially by authority of the Holy See. Execution made before the document has been received, when the document has been received, would have to be repeated.1
- The commissary must accurately observe the clauses or conditions of the dispensation which are contained in the rescript: for all have the character of a precept obliging under grave or under light obligation according to the quality of the matter; on some of them even the validity of the dispensation depends.2 The chief clauses are:
a. Verification of the prayers before the execution of the dispensation, unless it concerns an impediment of lesser grade. The mode of completing this verification is left per se to the judgment of the ordinary, who usually takes care that it be completed by the parish priest. Verification is chiefly made by examining the witnesses and the petitioners themselves.
b. Removal, if it is present, of scandal, especially through separation of the betrothed, for a time well seen by the ordinary, if it can be done. This clause, which is contained in the rescripts when incest or another delict of the petitioners is brought forward as the cause of dispensation, is to be understood thus, that among the means of repairing scandal separation of the betrothed is to be preferred; but if this cannot be done, another means must be chosen, provided it is apt for the end.3
c. Once these have been duly fulfilled, the dispensation, which is granted not for validity but for liceity,4 must be given in writing, with express mention made of the apostolic delegation and of the impediment in which the petitioners are dispensed.5
- If the executor has erred in any way in the execution of the rescript, he can again mandate the dispensation to execution.6
1 S. Penitentiary, January 15, 1894; S. Office, August 14, 1892. Cn. 53.
2 S. Penitentiary, April 27, 1886. Cn. 39.
3 S. Penitentiary, April 12, 1889. Usually, for obtaining this end, those about to marry declare before the parish priest and two witnesses that they detest the injury committed and are prepared to fulfill the imposed penance.
4 S. Office, June 19, 1875. Cn. 56.
5 S. C. de Prop. Fide, January 12, 1869. Cn. 1057.
6 Cn. 59, 1.
624. On the Mode of Executing Dispensations Granted for the Internal Forum. If the Penitentiary grants the faculty of dispensing for the internal forum, with regard to the clauses these things must be noted:
The letters of dispensation are inscribed: To a discreet man. Therefore any confessor chosen by the petitioner can execute the dispensation, provided he has been approved by the ordinary of the place in which the dispensation is to be granted.
If these words are contained in the rescript: we commit to your discretion, insofar as, if it is so, by these words there is imposed on the confessor the obligation (so that the dispensation be licit) of inquiring from the penitent himself or herself whether the things set forth are true. He can simply believe that person's affirmation, unless by extrasacramental knowledge he knows otherwise.
If these things are contained in the letters of dispensation: After first hearing the bearer's sacramental confession, absolve from any censures, etc., the dispensation has no force unless, after sacramental confession has been premised, it is given in the act of confession; but sacramental absolution is not required. Hence if the penitent is not disposed for obtaining absolution, nevertheless he or she can be dispensed; and if the absolution would be sacrilegious, nevertheless the dispensation would be valid.1 But if confession is not expressly prescribed, dispensation for the internal forum can be granted even outside the act of confession.
If some penance is imposed in the letters, it must be imposed; but this penance must be distinct from sacramental penance. Sometimes a grave and long penance, a grave and enduring penance, a most grave and perpetual penance is prescribed to be imposed. This penance must be determined by the one who executes the dispensation, with account taken of the condition, age, and sex of the one on whom it must be imposed.
a. A grave and long penance would be a work of penance which is imposed to be performed each week for a year or for six months, or even for three months, e.g., to recite the rosary once or twice each week, to hear Mass once each week, to make the way of the cross each Sunday, to receive the sacraments at least once a month, etc. A grave and enduring penance would be a work of penance of this sort which is enjoined to be performed for three years, or for two, or even for one year. A most grave and perpetual penance would be a work of this sort to be performed until death.
b. Penance in the execution of a matrimonial dispensation must indeed be imposed and accepted, but the dispensation is not rendered invalid by the fact that the imposed penance is not fulfilled by the one dispensed;2 nor in that case in which the one dispensed does not even have the intention of fulfilling it.3
Since the dispensation must remain occult, these words are contained in the rescript of dispensation: these present letters, under pain of excommunication latae sententiae, are to be destroyed by you immediately after execution. Destruction is to be done immediately, that is, at least within three days, by burning or tearing up the rescript. Nevertheless, by these words the confessor is not prohibited from keeping a copy of the letters for his own instruction, provided all things are omitted from which the person of the penitent can be known.
If the impediment affects only one party, as the vow of chastity, it suffices to dispense with one party. But if the impediment is common to each party or introduced by the fault of each, as the impediment of crime, each party must approach a confessor (whether the same one or even a different one) and accept dispensation.
a. If one party chooses another confessor, the rescript must be returned by the first confessor to the penitent, who hands it over to the other party, so that this party can seek dispensation from his or her confessor.4
b. The dispensation of each party is not required for removing the impediment, which, since it is indivisible, is removed with regard to each party by one dispensation, but so that a salutary penance may be imposed on each party, since the fault of each is common.5
- Dispensation for the internal forum is granted by word of mouth, and if it is to be granted in confession, after sacramental absolution.
A determinate formula of dispensation is not prescribed; therefore, after sacramental absolution has been granted, the confessor can use these or similar words: Moreover, by apostolic authority committed to me I dispense with you over the impediment (e.g., of affinity), so that, notwithstanding it, you may be able to enter matrimony (if it has already been contracted: enter it again). In the name of the Father, etc.
1 S. Penitentiary, May 19, 1854.
2 S. Penitentiary, September 14, 1891.
3 S. Penitentiary, November 12, 1891.
4 S. Penitentiary, November 15, 1748.
5 S. Penitentiary, February 7, 1832.