Section — Noldin, Summa of Moral Theology
Section 3. Legal Relationship.
565. Declaration. 1. Legal relationship is the nearness of persons arising from adoption. It is called legal because it was first established by civil law, although afterward it was also received by ecclesiastical law.
Adoption is defined as a legitimate act by which someone who is not a son or grandson is assumed as son or grandson. It must be made through a public act according to the established laws of each region. Wherefore each person must learn the nature, extent, and effects of adoption from the civil code of his own region.
A threefold legal relationship arises from adoption: legal paternity between the adopter and the adopted person and the descendants of the adopted person; legal fraternity between the adopted person and the legitimate children of the adopter, who exist under paternal power; legal affinity, which intervenes between the adopter and the wife of the adopted person and, conversely, between the adopted person and the wife of the adopter.
In Roman law a distinction is made between perfect adoption, or arrogation, if a person of his own right is assumed as a son by the supreme authority of the emperor in such a way that he passes into the power and family of the adopter and becomes his necessary heir, equally as natural and legitimate children; and imperfect or simple adoption, if a person who is not of his own right is assumed as a son by the inferior authority of the magistrate in such a way that he does not pass into the family and power of the adopter, but nevertheless receives some right in the inheritance.
From perfect adoption in Roman law arose a diriment impediment of matrimony, legal relationship, namely:
a. Between the adopter, the adopted person, and the children and descendants of the adopted person, legal paternity.
b. Between the adopted person and the legitimate children of the adopter who at the time of adoption are constituted under paternal power, legal fraternity.
c. Between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, legal affinity.
The impediment of legal relationship is perpetual, that is, even when adoption is dissolved, it endures in those between whom legal paternity and affinity exist; but in those between whom legal fraternity intervenes, the impediment ceases when adoption is dissolved.
Adoption is dissolved both through emancipation of the adopted person or of the son or daughter of the adopter, and through death of the adopter.
- The Church made this law of the Romans its own and constituted legal relationship arising from perfect adoption a diriment impediment of matrimony. In more recent time most nations substituted their own civil codes for Roman law; hence the question arose whether the diriment impediment of legal relationship still had force. The question was resolved in this way: the diriment impediment of legal relationship remains in those places in which the law of adoption as to substantial elements agrees with the perfect adoption of Roman law. Wherefore in individual regions it had to be investigated whether the laws in force as to substantial things imitated perfect adoption. Since the decision of the question was not free from difficulty, it happened that this impediment was held as doubtful unless the Holy See issued an authentic declaration concerning it. The new Code now removes the whole difficulty of this matter, because it adopts the civil law as its own.
566. Nature of the Impediment. 1. The peculiar relation which arises by force of adoption between the adopted person and the family of the adopter furnishes a reason for establishing that matrimony not be contracted between persons joined by legal relationship. In reality, in many regions civil law constitutes adoption an impediment of matrimony, now impedient, now diriment. Whether and in what way this impediment stands in the way of ecclesiastical matrimony depends on canon law. Now the new Code has made civil law its own and, as they say, has canonized it.
In those regions where legal relationship arising from adoption renders matrimony illicit by civil law, it is also illicit by canon law.1
Therefore in each region it must be examined whether the civil code constitutes legal relationship an impediment of matrimony, whether impedient or diriment, between what persons it has force, and how long it will endure. All these things have force in the same way also in the forum of the Church.
Legal relationship brings an impedient impediment of matrimony in Hungary, Germany, Switzerland, and France.
In several other regions legal relationship is a diriment impediment, as will be said below.2 Note that a canonical impediment is not removed by civil dispensation, but only by dispensation of the Holy See.
1 Cn. 1059.
2 Cf. Chelodi, n. 57. In Austria, the civil Code derives no impediment of matrimony from adoption; therefore no impedient canonical impediment exists there.
567. On the Unworthy. After he had treated impedient impediments, the Code establishes what must be done by the parish priest if the unworthy wish to enter matrimony.1 It lists two kinds of unworthy persons: a. notorious apostates and those enrolled in a sect condemned by the Church; b. public sinners and those bound by censure. Although a properly so-called impediment does not stand in the way of their matrimony, nevertheless they deserve peculiar care of pastors.
To 1. a. The faithful must be deterred from contracting matrimony with apostates or those enrolled in a condemned sect; for no less danger threatens both the other party and the future offspring from them than from heretics and schismatics.
b. The parish priest cannot assist at nuptials of this kind, but should refer the matter to the ordinary.
c. The ordinary can grant license of assisting if a grave cause urges and if he prudently judges that all offspring are to be educated Catholic and that the danger of perversion of the other spouse has been removed.
To 2. a. If public sinners or those notoriously bound by censure approach confession, even if they do this sacrilegiously, in the external forum they are held as reconciled before God and the Church; therefore nothing stands in the way of their being admitted to matrimony.
b. If they refuse to approach confession, the parish priest should not assist at the matrimony unless a grave cause, such as danger of civil marriage, concubinage, grave harm, etc., urges.
c. Concerning the cause and its sufficiency, if it can be done, the ordinary must be consulted.
1 Cn. 1065 and 1066.