Article I. On the Notion and Division of Impediments

777. 1. Notion. An impediment of matrimony in general is some circumstance because of which, by a disposition of law, a valid or at least licit matrimonial contract cannot be made between the contracting parties.

Such a circumstance can be sanctioned by either natural and divine law, ecclesiastical law, or civil law. Civil diriment impediments which have been established conformably to natural law bind the non-baptized, as was said above. All Christians are bound by canonical impediments, that is, those which arise from natural, divine, or ecclesiastical law. Infidels are not bound by impediments of merely ecclesiastical law, for example, the impediment of crime.

778. 2. Divisions. a) Impedient and diriment impediments.

An impedient impediment contains a grave prohibition against contracting matrimony; the matrimony, however, is not rendered null if it is contracted notwithstanding the impediment, for example, a simple vow of chastity. A diriment impediment¹ both gravely prohibits matrimony from being contracted and prevents it from being validly contracted,² for example, bond.

b) Impediments of natural or divine law and of ecclesiastical law.

Since God Himself determined the nature of matrimony, and since Christ reduced matrimony to its pristine purity, impediments which are of natural law are also of divine law. This holds especially for Christian marriages, in which the matrimonial contract is inseparable from the sacrament. By natural or divine law all those things dirime matrimony which are directly opposed to the three goods of matrimony, for example, impotence, bond, error in the person, and defect of consent. By ecclesiastical law those impediments prohibit or invalidate matrimony which indeed are not directly opposed to the three goods of matrimony, but nevertheless are opposed to its fittingness, for example, consanguinity in more remote degrees, crime, sacred order, and so forth. Besides, it can sometimes be doubtful whether some impediment is of natural law or of ecclesiastical law. Thus, for example, authors dispute whether consanguinity in the first degree of the collateral line, that is, matrimony between a brother and his full sister, is of natural law or of ecclesiastical law.

c) Absolute and relative.

Those impediments are called absolute which invalidate or prohibit matrimony with any other person whatsoever, for example, bond and absolute physical impotence. But relative impediments are those which stand in the way of a determinate matrimony alone, for example, consanguinity, affinity, and so forth.

d) Public and occult.

Those impediments are called public which can be proved in the external forum,³ or which are known either from their nature or from the notoriety of the fact, or at least can easily be known by many. Those things which rest upon a fact public of itself, for example, a solemn vow and natural kinship, are held public from their nature or by law. Because of the notoriety of the fact, an impediment is called public or notorious if it is known by so many and such persons that the danger of divulgation is very probable and it can be proved in the public forum. If an impediment is notorious in one place but not in the place where the matrimony is celebrated, such a circumstance must be declared when the dispensation is sought.⁴ If a notorious impediment has been given over to oblivion by lapse of time, for example, after ten years, it can be considered occult, unless, however, it is public from its nature or by law.⁵ - An occult impediment is distinguished as either entirely occult, which is known by no one except the parties and the confessor,⁶ for example, impotence or crime, or relatively occult, which is known by a few discreet persons, so that the proximate danger of divulgation is absent. Sometimes an impediment occult in fact, but public by law, is also distinguished; for example, Titius contracts matrimony with Caia, who is held to be the legitimate daughter of Paul; but in reality she was born from the secret adultery of her mother with the maternal uncle of Titius. Therefore between Titius and Caia there is consanguinity in the second degree of the collateral line. This consanguinity in fact is entirely occult, but by law is held public. - Finally, some authors further distinguish an impediment formally occult and materially public; for example, Titius, a widower, wishes to contract matrimony with Caia, with whom he committed adultery under a mutual promise of matrimony. Many indeed know this base fact, but they do not know that an impediment of matrimony arises from it. Therefore it is materially public, but formally (insofar as it is an impediment) it is occult,⁷ yet it must be held as public.^7a

e) Indispensable and dispensable.

The former are those in which the Church cannot dispense, or at least is not accustomed to dispense, for example, bond, priesthood, and affinity in the direct line. The latter are those impediments from which the Church is accustomed to dispense, for example, consanguinity in the second and third degree.

Dispensable impediments are subdivided into impediments of the lesser and of the greater degree, according to the diverse manner and facility of obtaining a dispensation. Impediments of the lesser degree are: 1. consanguinity in the third degree of the collateral line; 2. affinity in the second degree of the collateral line; 3. public propriety in the second degree; 4. spiritual relationship; 5. crime from adultery with a promise or attempted celebration of matrimony.⁸ All other diriment impediments are of the greater degree.

f) Perpetual and temporary.

The former, the perpetual, endure until a dispensation has been obtained, for example, consanguinity; the latter cease of themselves by lapse of time, for example, defect of age.

g) Certain and doubtful.

A doubt can be either a doubt of law or a doubt of fact. If a doubt of merely ecclesiastical law exists concerning an impediment, the axiom can generally be applied: "A doubtful impediment is no impediment." For "even invalidating and incapacitating laws do not bind in a doubt of law."⁹ Nevertheless, it belongs neither to the confessor nor to the parish priest, but to the Ordinary, to whom the matter is to be referred (if this can morally be done), to decide concerning the existence of a doubt of law. If there is question of a doubt of divine or natural law, or of a doubt of fact, in practice the judgment of the competent ecclesiastical authority, namely, of the bishop or the Holy See, is first to be sought. Thus, for example, in a doubt concerning the existence of the impediment of bond, matrimony is wont to be prohibited; but in a doubt concerning the existence of the impediment of impotence, matrimony is wont to be permitted.

¹ The expression "diriment impediment" is censured by some authors, for example, by Bernard of Pavia (in Freisen, Gesch. d. kan. Eherechtes, 223), because nothing can be dissolved which does not exist. Moreover, when a diriment impediment exists, matrimony does not exist. But since this expression is already contained in the Decretals (c. 4, X 4, 3), there is no reason for us to depart from it, since its meaning is obvious. But St. Thomas says excellently (Suppl., q. 50, a. un., ad 7): "The aforesaid impediments are not said to dirime a contracted matrimony as though dissolving a true matrimony which was duly contracted; but because they dissolve a matrimony which was contracted de facto and not de iure."

² Code of Canon Law, can. 1036.

³ Ibid., can. 1037.

⁴ Cf. Vogt, Das kirchl. Eherecht, § 28.

⁵ Benedict XIV, Instruction 87, n. 41 ff., treats excellently of this matter.

⁶ Thus at least if there is question of a matrimony to be contracted, because one witness suffices to impede a matrimony to be contracted; but if there is question of a contracted matrimony, the impediment is held occult even if one witness knows it. Cf. Wernz-Vidal, Ius can. V, n. 147, and Sacred Congregation of the Council, January 29, 1889.

⁷ Cf. Gennari, Consultazioni mor. I, CXXVII.

^7a Pontifical Commission, June 25, 1932 (Acta Ap. Sed. XXIV, 284).

⁸ Code of Canon Law, can. 1042.

⁹ Ibid., can. 15.