Article One. On Impediments in General.

556. Notion and Division. 1. "All can contract matrimony who are not prohibited by law."¹ Now prohibitions arising from law, whether divine or human, which render a person incapable of entering matrimony, are called impediments. Therefore an impediment of matrimony is generally called a circumstance which, from a statute of law, whether divine or human, renders a human being incapable of contracting matrimony. Impediments of matrimony are of a twofold kind: some are diriment, which prohibit matrimony under grave obligation and effect that it cannot be entered either licitly or validly; others are only impedient, which prohibit matrimony under grave obligation and effect that it cannot be entered licitly. Therefore impediments of matrimony are laws either only prohibiting, or prohibiting and at the same time invalidating.

They are called diriment not because they dissolve a valid matrimony, but because they stand in the way so that an attempted matrimony cannot be validly entered.

2. An impediment is called certain if the law and the fact are established, and doubtful if either the law or the fact or both are not established. If the law is not established, it is doubtful by doubt of law; if the fact is not established, it is doubtful by doubt of fact; if both are not established, it is doubtful by doubt of law and fact.

3. An impediment is judged public which can be proved in the external forum, and occult which cannot be proved in the external forum.²

Not the knowledge of many among men, but the possibility of proving in the external forum, is the reason for this division. Wherefore, e.g., consanguinity or affinity, even if unknown to men, are never occult impediments, since they can be proved from canonical books. Two or three witnesses above every exception suffice for proving the matter in the external forum; indeed sometimes the deposition of one witness makes full faith, if it is a qualified witness who testifies concerning things done from office.³

4. Although an impediment has itself on the part of one side only, nevertheless it renders the matrimony either illicit or invalid.⁴

¹ Cn. 1035.

² Cn. 1037.

³ Cn. 1791.

⁴ Cn. 1036, 3.

557. On a Doubtful Diriment Impediment. A doubtful impediment here is understood as an impediment which exists not certainly but only probably, namely where after diligent investigation of the truth there remains a founded doubt concerning the existence of the impediment. Moreover doubt, or probability, can be of law or of fact; and doubt of law can be of divine law or of ecclesiastical law.

a. It is licit to enter matrimony with a doubtful impediment if the doubt is of law and indeed of ecclesiastical law, because in this case the Church supplies, or rather because the law from the will of the Church in this case does not oblige: "For laws, even invalidating and incapacitating ones, do not urge in a doubt of law."¹ And because matrimony can be licitly entered with an impediment of this kind, theologians are accustomed to say that a doubtful ecclesiastical impediment, by doubt of law, is no impediment.

b. It is not licit to enter matrimony with a doubtful impediment if the doubt is of divine law or a doubt of fact. If the doubt is of divine law, the Church cannot supply, and therefore the sacrament would be exposed to the danger of nullity; if the doubt is of fact, it is established that the Church itself does not wish to supply, but the ordinary in this case can dispense: "For in doubt of fact, ordinaries can dispense in laws, even invalidating and incapacitating ones, provided there is question of laws in which the Roman pontiff is accustomed to dispense."²

Therefore if, e.g., it is probable that the bridegroom is related by blood in the third degree with his bride, he contracts matrimony illicitly; and if he is in reality related by blood, also invalidly. But the Church does not render matrimony valid in doubt of fact because in this doubt per se and ordinarily the truth can be discovered, and only per accidens in a particular case is it not discovered. Hence if a doubtful impediment by doubt of fact stands in the way of matrimony, dispensation must be sought as a precaution, which in this case the bishop can grant.

¹ Cn. 15.

² Cn. 15.

558. Diriment Impediments Are Divided: 1. By reason of origin, into impediments of natural law, positive divine law, and ecclesiastical law, according to the diverse authority which establishes the impediment. Impediments of natural law are impotence and consanguinity in the first degree of the direct line; of divine law, bond; the rest are of ecclesiastical law.

All human beings are subject to impediments of divine law, whether natural or positive, both the faithful and infidels; only the faithful, at least directly, are bound by impediments of ecclesiastical law; only infidels are bound by impediments of civil law.

2. By reason of extension, into absolute, which dirimently impede matrimony with any person, such as vow, order, bond, age, absolute impotence; and relative, which dirimently impede matrimony only with certain persons, such as relationship, crime, disparity of cult, fear, public honesty, affinity, relative impotence, and abduction.

3. By reason of dispensation, into dispensable impediments, in which the Church can and is accustomed to dispense; and indispensable, in which the Church either cannot dispense or is not accustomed to. Of the first kind are almost all impediments of merely ecclesiastical law; of the second kind are impediments of natural and divine law and some of ecclesiastical law.

4. By reason of the immediate end and right of impugning matrimony, into impediments of public law, whose immediate end is principally the common good, and therefore the right and office of impugning matrimony invalid from such an impediment belongs to all the faithful, and to the ecclesiastical judge by reason of office; and impediments of private law, whose immediate end is principally the private good of the contracting parties, and therefore the right and office of impugning matrimony invalid from such an impediment belongs proximately to the contracting parties themselves, and the ecclesiastical judge proceeds against the matrimony only at the instance of the contracting parties.

Of this kind is impotence; the rest are of public law. Hence matrimony invalid because of the impediment of impotence can be impugned only by the spouse, by demanding a declaration of nullity. On the contrary, since, e.g., bond is an impediment of public law, the ecclesiastical judge can and must impugn from office a matrimony invalid because of the impediment of bond.

5. By reason of gravity and moment, into impediments of minor degree, such as:

a. Consanguinity in the third degree of the collateral line;

b. Affinity in the second degree of the collateral line;

c. Public honesty in the second degree;

d. Spiritual relationship;

e. Crime from adultery with promise or attempted matrimony, even through only a civil act;

and impediments of major degree, such as all the rest.¹

In minor impediments, dispensation is valid even if obreption or subreption intervened in the petition, even if the sole final cause was false.²

¹ Cn. 1042.

² Cn. 1054.

559. Who in the Church Can Establish Impediments.¹ 1. The supreme ecclesiastical authority alone, the supreme pontiff and a general council, can:

a. establish impedient and diriment impediments for the baptized by way of law, whether universal or particular;

Several doctors think that bishops by divine law can establish impedient and diriment impediments after the manner of law and that they have in reality exercised this power; but that the supreme pontiff Gregory IX reserved this power to himself alone. But most authors deny that bishops have this power from ordinary right. It belongs to the Roman pontiff by ordinary right; but to a general council, which represents the universal Church, by extraordinary right. An Ecumenical Council, as a legitimate general synod, derives its authority from the pope, without whose confirmation its decrees do not have force for obtaining all the faithful. The new Code reserves the same to the Roman pontiff, Cn. 1038, 2.

b. authentically declare when divine law impedes or dirimently impedes matrimony;

c. abrogate or derogate from impediments of ecclesiastical law, whether impedient or diriment, and dispense in them, unless this faculty has been conceded by the Holy See to others.

2. Ordinaries of places can for a just cause, and while it endures, forbid matrimony in a particular case, but only for a time, to all actually staying in their territory and to their subjects even outside the territory; but only the Apostolic See can add an invalidating clause to the prohibition.²

a. Causes on account of which matrimony can be prohibited: a. doubt whether some circumstance impedes or dirimently impedes matrimony; b. probable fear lest grave inconveniences arise from the matrimony, such as scandals or enmities.

b. The parish priest, who lacks jurisdiction in the external forum, forbids matrimony for a time by a simple extra-judicial prohibition until the matter has been decided by the bishop.

3. Custom inducing a new impediment or contrary to existing impediments is reprobated by law.

There exist impediments introduced by custom, e.g., disparity of cult, spiritual relationship; for the future, impediments of this origin are excluded.

Note. Since Christ the Lord elevated the matrimonial contract itself, without changing its nature, to the dignity of a sacrament, it could seem that the Church, because it institutes and abrogates diriment impediments, changes the sacramental institution of Christ. But it must be noted that the contract which Christ increased with the dignity of sacrament is not a merely natural or civil contract, but a canonical one, whose value depends on natural and positive law, both divine and ecclesiastical.

¹ Cn. 1038-1041.

² Cn. 1039.

560. Whom the Matrimonial Laws of the Church Oblige. 1. The matrimonial laws of the Church oblige all the faithful, not only Catholics but also heretics and schismatics. Wherefore canonical impediments affect also the marriages of heretics. And indeed the Church has never recognized as valid the marriages of heretics to which a canonical impediment stood opposed,¹ and has more often declared that not even the custom of the longest time can effect that, as regards heretics, the matrimonial laws of the Church lose their force.²

Some theologians of Germany, such as Laymann and Schmalzgrueber, thought that the Church indeed can, but does not wish, to oblige even heretics by its matrimonial laws, and therefore that the Church exempts heretics from at least some canonical impediments. But today there is no longer a theologian who professes this opinion. Nor, however, must it be inferred that the offspring of heretics are frequently illegitimate; for since heretical spouses ordinarily are in good faith, their matrimony is putative, and therefore the offspring legitimate.

That heretics and schismatics also are held by ecclesiastical laws as regards marriages is not doubtful from the new Code, which is proved a. from the general principle established in Cn. 12 and Cn. 87, by which all baptized persons are held by the laws of the Church; b. from Cn. 1038, 2, by which the right of the Church is vindicated for establishing impediments for all the baptized; c. from Cn. 1099, by which this is expressly indicated if it intends to exempt heretics from some law; d. nor does ignorance or good faith excuse them, since Cn. 16 says that no ignorance excuses from invalidating and incapacitating laws.

2. The matrimonial laws of the Church do not oblige infidels; therefore canonical impediments at least directly do not affect the marriages of infidels, for over infidels the Church exercises no power of jurisdiction.

Directly is said because indirectly, and indeed in a threefold case, the power of the Church extends even to the marriages of infidels. a. Marriages of infidels are ruled by natural and divine law; but the Church is the infallible interpreter of natural and divine law; wherefore declarations of this law made by the Church extend also to infidels. b. If an infidel contracts matrimony with a faithful person, because the latter is subject to the laws of the Church, by reason of connection the infidel also is indirectly subject to the Church. c. If an infidel joined in matrimony is converted to the faith, that person's matrimony can be dissolved through dispensation of the supreme pontiff, in which case the matrimony of the one who remains in infidelity is subjected to the Church by reason of the faithful other party.

Article Two.. On Impedient Impediments.

a. Some impedient impediments are improperly so called, which stand in the way of matrimony insofar as it is a sacrament, such as mortal sin and excommunication; others are properly so called, which stand in the way of matrimony as it is a contract. The discussion here is concerning the latter.

b. In the old law impediments of this kind were numbered five: the prohibition of the Church, time, betrothals, vow, and mixed religion.

c. In antiquity two other impedient impediments of matrimony were numbered, namely the impediment of catechism and of crime. By the name catechism is understood the profession of faith which the person to be baptized had to emit in antiquity, and still partly emits, through questions and answers before the doors of the church, when asked whether he renounces Satan, whether he believes, etc. Now the one who held the person to be baptized in catechism and answered for him, who in antiquity was distinct from the baptismal sponsor, contracted a certain imperfect spiritual relationship, which was designated by the name impediment of catechism. The impediment of crime arose from seven different delicts, such as incest, killing of a priest, killing of a spouse, etc. The impediment of catechism was abrogated through the Council of Trent,³ the impediment of crime through universal custom.

d. In the new law, from these, only two impedient impediments are mentioned: vow and mixed religion, to which is added a third new one, namely legal relationship.

¹ Cf. Becker, p. 34 f.

² Concerning this question, the three constitutions of Benedict XIV can be consulted: Matrimonia, November 4, 1741; Magnae, June 29, 1748; Ad tuas manus, August 8, 1748. Cf. Cn. 12 and 87.

³ Sess. 24, c. 2, De reform. matr.