Question Five. On the Impediments of the Conjugal Act.

The impediments of the conjugal act are of two kinds: some arise from marriage itself, others from the married persons.

97. On the part of marriage there arises an impediment of the conjugal act: a. if the marriage is certainly invalid; b. if the marriage is doubtful.

1. If the marriage is certainly null and both spouses know the nullity, they must abstain from the conjugal act until a dispensation is obtained. If only one knows the nullity, he is bound to admonish the other party about this matter; but if he cannot do this, certainly he must abstain from intercourse under some pretext (e.g. that intercourse is harmful to him, intolerable), until a dispensation has been obtained: for intercourse, as being fornication, would be evil in itself.

a. It can happen in a twofold way that a spouse who certainly knows the nullity of the marriage cannot instruct the other party about it. Namely, a. it can happen that his proof is rejected by the ecclesiastical judge as insufficient, and therefore the spouse is compelled, even under penalty of excommunication, to cohabit with the putative spouse and render the debt to her; b. it can happen that he cannot reveal the impediment without danger to life or reputation.

b. I said above that the spouse knowing the impediment must abstain from intercourse. Nevertheless, if the case should ever occur, the confessor could permit intercourse where the impediment which induces nullity is of ecclesiastical law and a dispensation cannot be obtained at once. For the opinion is probable that in this case of most grave inconvenience the impediment ceases for the same reason as, in a perplexed case, according to the probable opinion of many, the impediment ceases. Meanwhile, however, for caution a dispensation is to be sought.¹

¹ Cf. Ballerini-Palmieri VI, n. 532 f. Lehmkuhl II, n. 826.

98. 2. If the marriage is doubtful, whether the doubt already exists before marriage, or whether it supervenes only after the marriage has been contracted:

a. If the doubt is light, it is to be disregarded; if the doubt is grave, the truth is to be investigated.

b. During the investigation, if both spouses doubt, they must abstain from intercourse to avoid danger of fornication; if only one party doubts, this party cannot ask, lest he expose himself to danger of fornication, but he can and must render if the other has not lost the right of asking, lest he expose himself to danger of injuring justice.

c. If, after investigation has been made, the doubt persists, the marriage must be considered as valid both in the external forum and in the internal forum, because in doubt one must stand for the value of the act.

99. On the part of the spouses an impediment of the conjugal act can arise from a threefold head: a. from incest; b. from adultery; c. from a vow of chastity.

Concerning the case of supervening impotence, see n. 66.

From incest. a. One who has committed incest inducing supervening affinity, as a penalty imposed by the Church, loses the right of asking,¹ but he can and must render the debt to the innocent party, even before a dispensation is obtained.

b. In order that an incestuous person incur this penalty, there is required: a. knowledge of the imposed penalty, because extraordinary penalties are not incurred by those who are ignorant; b. immunity from force and fear,² because force excuses from transgression of any law, and grave fear from transgression of ecclesiastical law and therefore also from incurring the penalty. Since these conditions are rarely had in spouses, they scarcely ever incur this penalty unless they have been warned about it.

c. If in the meantime the incestuous person is placed in great danger of incontinence, he can ask the debt, because ecclesiastical law does not oblige with so great an inconvenience.³

But the innocent other party, who notices the danger of sinning in the spouse, is bound neither to ask the debt nor to comply with one asking: for charity, from which of itself one is bound to remove a spouse from danger of sinning, does not oblige with grave inconvenience; but this is a grave inconvenience for the innocent other party. For since incest contains adultery, the innocent party has from it the right of demanding separation; but by asking or by rendering the debt this right is lost, which can be a grave inconvenience for the innocent party.

d. The innocent spouse is not indeed bound to comply with the incestuous other party asking the debt; nevertheless he can render the debt to her, even if he has knowledge of the incest of the other party and of the penalty laid upon the incestuous: for since only the asking, not intercourse itself, is illicit, the spouse does not cooperate with an evil thing.

For practice these things must be noted:

a. If a married person accuses himself of incest, first he must be asked in what degree he committed the incest: for affinity from illicit intercourse, just as it does not annul marriage, so neither does it take away the use of marriage beyond the second degree.

b. Then he must be asked whether he knew the ecclesiastical penalty, and if, as mostly happens, he was ignorant of this penalty, he must be warned about incurring it through a new incest.

c. Finally it must be investigated whether perhaps he consented to incest from grave fear: for the opinion of those whom St. Alphonsus also follows (n. 1071) is probable, namely that grave fear excuses, not indeed from grave sin, but from incurring the ecclesiastical penalty.

d. Incest always involves adultery; but the penalty of incest is one thing, that of adultery another. The injured party can condone the penalty contracted because of adultery, but cannot condone the penalty contracted because of incest: for the former has been enacted in favor of the innocent party, but the latter solely for punishing incest; therefore its removal must be sought from the Church itself.

e. Imperfect acts are not prohibited by this ecclesiastical law: for a penal law prohibiting intercourse, since it is of strict interpretation, is not to be extended to touches and other imperfect acts.

e. From this impediment, to dispense, or to restore the lost right of asking, not only bishops, who can also delegate this faculty to others,⁴ but even regular confessors can do this, and indeed outside confession.⁵

a. For granting the dispensation validly a cause is indeed required; nevertheless it is scarcely not always present, namely danger of incontinence.

b. Authors dispute whether regular confessors need the permission of a superior for granting this dispensation. The opinion which denies the necessity of permission seems safe, because the faculty has been conceded by the supreme pontiff without this condition; in practice, however, one must stand by the statute or custom of individual orders.

¹ C. Si quis 1. De eo, qui cognovit (IV. 13).

² C. Discretionem 6. De eo, qui cognovit (IV. 13).

³ St. Alphonsus n. 930.

⁴ Formula for petitioning from the bishop the faculty of restoring the right of asking the debt: "Most Illustrious and Most Reverend Lord. Caius, a married man, has had carnal intercourse with his wife's blood-relative in the first (or second) degree, and has thereby lost the right of asking the debt. But since he cannot preserve chastity with his spouse and the incest is occult, I most humbly beg that the faculty be granted to me of restoring to him, by dispensing, the lost right."

⁵ St. Alphonsus l. 6, n. 1076.

100. From adultery. a. One who has committed adultery can ask the debt, because he has lost not the right of asking, but the right of exacting the debt; nevertheless he probably does not lose this right before the innocent party has known the crime.

Whether an adulterous spouse loses the right of exacting the debt by the adultery itself, or only by the quasi-sentence of the innocent party, namely when the latter has known the crime and has not condoned it, but has determined to deprive the guilty party of the right, is disputed. Nevertheless the opinion which holds that the adulterer retains even the right of exacting the debt as long as the innocent party is ignorant of the crime is probable, because this privation of right has the character of a quasi-penalty, which the guilty person is not bound to impose upon himself. Wherefore the adulterer can not only ask the debt, but also exact it, until the innocent party, after the crime has been known, deprives him of this right by denying the debt.¹

b. By condonation the lost right is acquired again; furthermore adultery can also be tacitly condoned by rendering the debt.

Some suspicion or probability concerning adultery committed by the other party is not sufficient; rather, such indications are required as generate moral certitude, so that the innocent party may be able to deny the use of marriage to the other guilty party.

¹ Cf. Sanchez l. 1, disp. 68, n. 2 ff. Lehmkuhl II, n. 846.

101. From a vow of chastity. a. If one of the spouses is bound by a vow of chastity, he indeed cannot ask, because by vowing he has promised abstinence from every venereal act, which promise indeed he must fulfill as far as he can; but he can fulfill it by not asking. Nevertheless he can and must render, because an emitted vow cannot deprive the other of his right.

a. The vow of chastity which a spouse emits without the knowledge of the other spouse can be twofold: either of not using marriage and therefore not rendering the debt even if it is asked, or a vow of not asking. The first, once the marriage has already been consummated, is invalid, as being about an illicit thing; the other indeed is valid, but can be indirectly annulled by the other spouse. According to others, however, this vow is valid only in the wife, but not in the husband: for in the husband it would be about an illicit thing, because it would be grave for the wife if she herself were always compelled to ask the debt.¹

b. If a spouse bound by a vow of chastity notices that the other is most gravely tempted and is placed in danger of pollution, he licitly asks the debt in order to free the other from the danger of sin, because in this case he must be said not so much to ask as to render to one asking interpretatively; but he can licitly render.

b. If both spouses by common consent have vowed to abstain from the work of marriage for a certain time, neither can ask or render. But if one asks contrary to his vow, the other is bound to render, because the former has not renounced the right of asking by the vow. Nevertheless, from the precept of charity the other is bound to admonish the one asking, where he can do so without grave inconvenience, that he desist from the illicit asking.²

If because of the emitted vow they are placed in grave danger of incontinence, recourse to dispensation is to be advised; but probably even the husband can indirectly annul the vow of the wife, and the wife the vow of the husband: for by the fact that they vowed by mutual consent, they do not seem to have renounced the right of annulling the vow of the other party.

c. Regular confessors can dispense with married persons who, either before or after the marriage has been entered, have emitted a vow of perpetual chastity, to this extent, that they can licitly ask the debt (even outside confession).

a. That they can dispense in a vow emitted before marriage is established from the privileges conceded by the supreme pontiffs to mendicants;³ that they can do the same in a vow emitted after marriage is established from the known canon, that regulars can dispense in all vows in which bishops dispense by ordinary law.

b. But they cannot dispense if both spouses by common consent have emitted the vow, or if only one has done so, but with the consent of the other, who by this very fact yields his right. The dispensation in this case remains reserved.

c. Since spouses have been dispensed only for the use of marriage, they sin against the vow if outside the use of marriage they sin against chastity; moreover after the death of the other party they cannot enter a new marriage without dispensation.

¹ Cf. De praeceptis n. 232.

² Cf. St. Alphonsus n. 944.

³ Cf. St. Alphonsus l. 6, n. 1128.