§ 1. On the Notion and Division of a Matrimonial Dispensation

853. Notion. The name dispensation is not always taken in the same sense; for sometimes it signifies the total abolition of a law for a particular case, but sometimes the suspension of the obligation of a law while the law remains. Thus, for example, a dispensation from a ratified matrimony totally removes that matrimony, but a dispensation from a solemn vow does not always remove that vow, but sometimes only suspends its obligation in relation to matrimony. In a general manner a matrimonial dispensation can be defined: a relaxation of a law invalidating or prohibiting matrimony, legitimately made in a particular case by a legitimate superior.

854. Divisions. 1. A dispensation for the internal forum and for the external forum. - The internal forum regards conscience and comprises both the penitential forum strictly so called and the private and occult forum. A dispensation for this forum has place especially in occult impediments of crime and of vows emitted privately. The external forum regards the external polity and the public good of ecclesiastical society. According to the prescription of the Code of Canon Law, can. 258, § 1, no dispensations for the external forum can now be given by the Sacred Penitentiary. - A dispensation given for the external forum is valid also in the internal forum, but not conversely; and therefore, if a dispensation from an occult impediment was granted in the internal forum, nevertheless a dispensation for the external forum must regularly be requested if perhaps this impediment afterward became notorious; at least this is so if the dispensation was granted in the sacramental internal forum alone. But if a dispensation from an occult impediment was granted in the non-sacramental internal forum, it is to be noted in the secret book of the archive of the diocesan curia, and no other dispensation for the external forum is necessary, even if the occult impediment afterward became public. Thus it is, unless a rescript of the Sacred Penitentiary provides otherwise.²³⁴

2. A dispensation for contracting matrimony and for convalidating a matrimony invalidly contracted. In the first case a simple dispensation is granted, but in the second case sometimes a dispensation is granted which is called a radical sanation.²³⁵

3. A dispensation in gracious form and in commissorial form. According to the discipline now in force, the former is granted immediately to the petitioners themselves, for example, to persons of great dignity; the latter is committed to a bishop, parish priest, or confessor to be executed. This second method is now almost always in use.²³⁶

4. A dispensation of the greater and of the lesser degree. There are five impediments of the lesser degree: 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. All other impediments are of the greater degree.²³⁷

Scholion 1. Before the Constitution Sapienti consilio, a dispensation in the form of nobles, in the common form, and in the form of the poor was also distinguished. All these now seem to have been abolished, since no matrimonial dispensation is now granted by the Dataria.²³⁸

Scholion 2. As regards the history of matrimonial dispensations, several things are still obscure. From the first centuries no certain matrimonial dispensations are known. Nevertheless, it is not yet permissible to conclude therefrom that dispensations of this kind were never granted at all at that time. The first example of a dispensation seems to be an Indult granted to John, son of Henry II, King of England (1154-1189), so that he could contract matrimony with a blood relative. The glossators of the Decree of Gratian in the twelfth century clearly acknowledge that the Supreme Pontiff can not only convalidate a matrimony invalidly contracted because of an impediment of ecclesiastical law, but also dispense for contracting matrimony notwithstanding such an impediment.²³⁹ From the time of Innocent III, the discipline of dispensations now in force gradually obtained, according to which a dispensation from all diriment impediments is reserved to the Supreme Pontiff. Nevertheless, by delegation bishops today are wont to have broad faculties of dispensing, as will be said below.

²³⁴ Code of Canon Law, can. 1047.

²³⁵ Cf. below, n. 878.

²³⁶ Cf. below, n. 871, where the execution or fulmination of dispensations will be treated.

²³⁷ Code of Canon Law, can. 1042.

²³⁸ Cf. Regolamento, c. 11, n. 13.

²³⁹ Cf. Freisen, Gesch. d. kan. Eherechtes, § 77; Leitner, Lehrb. d. kirchl. Eherechtes, 389.