§ 10. Affinity

839. Notion. Affinity is the proximity of persons arising from a valid matrimony, whether merely ratified or ratified and consummated, between the man and the blood relatives of the woman, and conversely between the woman and the blood relatives of the man.¹⁹⁵

Explanation. Before the new Code of Canon Law, the efficient cause of affinity was carnal intercourse of itself apt for generation; and therefore affinity arising from matrimonial intercourse (diriming matrimony up to and including the fourth degree) and from fornicarious intercourse (diriming matrimony up to and including the second degree) was distinguished. But now the efficient cause of affinity is every and only a valid matrimony, at least ratified, and it makes no difference whether carnal intercourse intervened or not. Therefore, the modern discipline must be carefully distinguished from the ancient discipline. For affinity now does not arise a) from fornicarious intercourse, b) from an invalid matrimony (although putative), c) from the legitimate, consummated matrimony of two pagans, since it is not a ratified matrimony. But if two pagans joined in legitimate matrimony are afterward baptized, the impediment of affinity certainly arises; indeed, it probably arises if either one is baptized, or if matrimony is contracted between a baptized and a non-baptized person.¹⁹⁶

¹⁹⁵ Code of Canon Law, can. 97. Concerning the history of the impediment of affinity, see Freisen, Gesch. d. kan. Eherechtes, § 39 f. The Code of Canon Law adopted the notion of affinity as it was employed in old Roman law and is employed in modern civil laws. Roman law established (L. 4, § 3, D. 38, 10): "Affines are the blood relatives of husband and wife, so called from this, that two relationships which are diverse from each other are joined through nuptials, and one approaches the boundary of the other's relationship; for the cause of affinity to be joined arises from nuptials."

¹⁹⁶ Thus the more common and truer opinion. Cf. Wernz-Vidal, loc. cit., n. 367. Nevertheless, some contradict it, for example, Blat, Commentar. III, 475; Ojetti.

840. Division. According to the discipline now in force, only simple and multiple affinity is distinguished, according as it rests upon one or several causes. Multiple affinity arises only:

1. whenever the impediment of consanguinity from which it proceeds is multiplied. How consanguinity is multiplied was said above, n. 833.

2. by successive matrimony repeated with a blood relative of the deceased spouse.¹⁹⁷ For example, if Caius successively marries Paula and Anna, who are sisters, he contracts a double affinity with Theresia, the cousin of Paula and Anna.

¹⁹⁷ Code of Canon Law, can. 1077, § 2.

841. Origin and suitability of this impediment. Although from matrimony a certain natural bond arises with the blood relatives of one's spouse, nevertheless it does not yet follow therefrom that the impediment of affinity arises from natural law itself. There were indeed several weighty authors (St. Antoninus, Reiffenstuel, Bellarmine, Pirhing, and others) who taught that at least affinity in the first degree of the direct line dirimes matrimony by natural law itself, and therefore that the Pope cannot dispense in such affinity, and also that a matrimony of pagans entered between such persons related by affinity is invalid; but the far more common and probable opinion teaches that no affinity whatsoever dirimes matrimony by natural law.¹⁹⁸ On September 4, 1743, the Holy Office declared that "there is no reason to doubt the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit intercourse between a stepfather and stepdaughter."

The Supreme Pontiff is not wont to dispense from the impediment of affinity in the first degree of the direct line, at least if it is a question of a matrimony to be contracted and if the affinity arose from a consummated matrimony. Indeed, several Supreme Pontiffs, for example, Urban VIII, Alexander VII, Innocent X, and Benedict XIII, expressly denied such a requested dispensation.¹⁹⁹ The matter is otherwise if carnal intercourse was exercised in paganism and matrimony is contracted after baptism has been received. On August 26, 1891, the Holy Office determined generally that "affinity which is naturally contracted in unbelief from intercourse, both licit and illicit, is not an impediment for marriages entered in unbelief, but becomes an impediment for marriages entered after baptism, by the reception of which unbelievers become subjects of the Church and therefore subject to her laws."²⁰⁰

¹⁹⁸ Cf. Billuart, De matrim., diss. 7, a. 5, § 3.

¹⁹⁹ In Leitner, Lehrb. d. kirchl. Eherechtes, § 31, p. 223. Cappello, De sacr. III, nn. 537 and 539, asserts that dispensations of this kind have been granted in our age.

²⁰⁰ The same Holy Office applied this rule on December 16, 1898, in the following practical case: Andrew, formerly a pagan but now baptized, wishes to marry Clara, who is still a catechumen but is about to receive baptism in the near future. Clara was Andrew's stepmother, that is, the second wife of Andrew's father; indeed, she had been the concubine both of Andrew's maternal uncle and of Andrew's grandfather. Therefore, Clara was related by affinity to Andrew in three ways (namely, in the first degree, in the second touching the first, and in the second degree of the direct line). The Holy Office responded: "If both betrothed parties, related by affinity in unbelief, ask to be joined in matrimony after receiving baptism, petition is to be made to the Most Holy One for a dispensation." - If Andrew and Clara, while existing in paganism, had contracted matrimony, no dispensation would have been necessary after baptism was received by each party. But if Andrew, baptized, had contracted with Clara, non-baptized, a dispensation from the impediment of disparity of worship would have been necessary; that dispensation would at the same time have removed the impediments of affinity. Cf. above, n. 809.

842. The impediment of affinity was most suitably established by the Church. For through matrimony the man and woman are united so intimately that the man contracts a certain close relation also with the blood relatives of the woman, and conversely the woman with the blood relatives of the man. Hence, just as it is fitting that matrimony not be contracted between blood relatives, so likewise it is not expedient that marriage occur between persons related by affinity. In addition, otherwise, namely, if such a matrimony were licit, grave dangers to chastity would arise, since the man is wont to associate familiarly with the blood relatives of the woman, and the woman with the blood relatives of the man. - Already in the Old Testament matrimony with a stepmother, stepdaughter, son’s stepdaughter, or daughter’s stepdaughter was prohibited.²⁰¹ - Although general laws concerning the impediment of affinity are not found in the first centuries of the Church, nevertheless from particular Councils²⁰² the existence of this impediment is clearly perceived, which at that time extended much more widely than now. Innocent III brought about its first limitation at the Fourth Lateran Council (A.D. 1215), decreeing that affinity arising from both licit and illicit intercourse dirimed matrimony up to the fourth degree.²⁰³ The Council of Trent²⁰⁴ brought about another limitation, establishing that affinity from fornicarious intercourse dirimed matrimony up to the second degree. Today the extent of this impediment is still more limited, as will be said below.

Names of Persons Related by Affinity in Certain Languages

1. Direct Line

2. Collateral Line

Sororius (a sister's husband) and fratria (a brother's wife) are named in the same manner in the vernacular languages as levir and glos, unless for the sake of clarity the entire phrase is given, that is, der Mann der Schwester [the sister's husband].

Note. If more remote degrees of affinity are present, the names of consanguinity must be employed, for example, the wife's grandmother or the husband's great-grandmother, etc.

²⁰¹ Cf. Lev. 18:8 ff.; Deut. 27:20.

²⁰² For example, the Council of Elvira around A.D. 300; the Council of Neocaesarea around A.D. 314.

²⁰³ c. 8, X, 4, 14.

²⁰⁴ Sess. 24, c. 4, De reform. matrim.

843. Computation of degrees in affinity. St. Thomas²⁰⁵ and the older authors taught that affinity properly does not have its own degrees, for degrees are computed from a series of generations. But there are no generations of persons related by affinity, since generations belong only to blood relatives. Therefore, affinity, not having its own degrees, takes its degrees from the consanguinity of the other party. Hence the blood relatives of the man are related by affinity to the woman, and the blood relatives of the woman are related by affinity to the man. From these things said, the following rule for computing the degrees of affinity follows:

There are as many degrees of affinity on one side as there are degrees of consanguinity on the other side, or as St. Thomas says:²⁰⁶ "In whatever degree of consanguinity my husband is related to me, in that degree of affinity his wife is related to me"; or as the Code of Canon Law, can. 97, § 3, says: "Affinity is computed so that those who are blood relatives of the husband are persons related by affinity to the woman in the same line and degree, and conversely."

This rule is clearly seen in figures 5 and 6, where affinity up to the second degree of the direct and collateral line is delineated, and from which it appears that the husband and wife are the stock from which affinity is to be computed.

Figure 5. Affinity in the Direct Line

Wife's grandparents ─────────────── affinity ─────────────── Husband
Wife's parents ──────────────────── affinity ─────────────── Husband
Wife ═════════════════════════ matrimonial union ═════════════════════ Husband
Wife's children by another marriage ─ affinity ───────────── Husband
Wife's grandchildren by another marriage ─ affinity ─────── Husband

Wife ─────────────── affinity ─────────────── Husband's grandparents
Wife ─────────────── affinity ─────────────── Husband's parents
Wife ─────────────── affinity ─────────────── Husband's children by another marriage
Wife ─────────────── affinity ─────────────── Husband's grandchildren by another marriage

The adages are very much to be noted: "Affinity does not beget affinity," and: "Affinity does not go beyond the persons joined." Therefore, between the blood relatives of the man and the blood relatives of the woman no affinity exists, and affinity is never present unless at least one of the contracting parties was previously bound by a valid sacrament of matrimony.

Hence, for example, two brothers can marry two sisters; a father and son can marry a mother and daughter; indeed, the father can marry the daughter and the son the mother, in which case the son would become the father-in-law of his own father; the husband's son and the wife's daughter born of previous marriages can enter matrimony with one another; someone can successively marry two widows whose deceased husbands were germane brothers.

Figure 6. Affinity in the Collateral Line

Their sons and daughters - Husband's brothers and sisters - Husband ═ Wife - Wife's brothers and sisters - Their sons and daughters

²⁰⁵ Suppl., q. 55, a. 7.

²⁰⁶ Ibid.

844. Extent of the impediment of affinity according to the ecclesiastical law now in force. Affinity in the direct line dirimes matrimony in every degree, but in the collateral line up to and including the second degree.²⁰⁷

Cessation of this impediment. The impediment of affinity once contracted does not cease except through a legitimate dispensation. If it is a question of affinity in the direct line, a dispensation is not wont to be granted (at least for contracting matrimony),²⁰⁸ as was already said above, n. 841. But in all other cases a dispensation can be obtained; and a faculty of dispensing of this kind for danger of death and another urgent case is contained in the Code of Canon Law, cann. 1043 and 1044.

²⁰⁷ Code of Canon Law, can. 1077.

²⁰⁸ The Sacred Penitentiary granted such a dispensation for convalidating a matrimony already contracted on December 2, 1911.