§ 11. Public Propriety

845. Notion. The impediment of public propriety (which is also called the justice of public propriety or quasi-affinity) is the proximity of persons arising either a) from an invalid matrimony, or b) from public or notorious concubinage.²⁰⁹

Origin. This impediment was introduced by Benedict XV. For the ancient impediment of public propriety was something altogether different. According to the discipline now in force, the impediment of public propriety arises a) from a matrimony invalid for any cause whatsoever, and therefore also from a putative matrimony; b) from public or notorious concubinage, which is habitual sexual intercourse between a man and woman and publicly known as such. Today the impediment of public propriety most frequently arises from a civil matrimony known as invalid, but only when cohabitation follows.^209a - Since marriages contracted before the new Code must be judged according to the ancient law, it must be kept before the eyes that public propriety then dirimed matrimony up to the first degree if it arose from valid betrothals (even entered privately); but up to the fourth degree if it arose from a ratified matrimony.

²⁰⁹ Code of Canon Law, can. 1078.

^209a Pontifical Commission, March 12, 1929 (Acta Apost. Sed. XXI, 170).

846. Extent of the impediment. The impediment of public propriety dirimes nuptials in the first and second degree of the direct line between the man and the blood relatives of the woman, and conversely.²¹⁰ If two non-baptized persons live in an invalid matrimony or in public concubinage, this impediment, since it is merely of ecclesiastical law, does not arise; it is otherwise if one baptized and one non-baptized person do the same.

The cessation of this impediment is obtained only through a dispensation of the Supreme Pontiff.

In danger of death of either contracting party and in a case of urgent necessity, the parish priest or confessor can dispense from this impediment according to cann. 1043 and 1044 of the Code of Canon Law. Since this impediment in the second degree is numbered among those which are of the lesser degree, a dispensation once granted is valid although a defect of obreption or subreption was committed in the petition for the dispensation. Therefore, the same holds that was said above concerning the impediments of affinity in the second degree of the collateral line and consanguinity in the third degree of the collateral line.

This impediment does not cease through the death of either concubinary partner or spouse, nor even through the legitimate dissolution of the concubinage or invalid matrimony; in other words: the impediment of public propriety once contracted is perpetual and never ceases unless it has been legitimately dispensed.

²¹⁰ Code of Canon Law, can. 1078.

847. It is disputed among authors whether there is a double impediment, namely, of public propriety and affinity, if an invalid matrimony is convalidated; or whether, on the contrary, public propriety or quasi-affinity then passes into true and sole affinity. Some assert that there is a double impediment, for example, Vlaming,²¹¹ Scharnagl,²¹² Schäfer,²¹³ De Smet,²¹⁴ and Linneborn.²¹⁵ - Several weighty authors teach that public propriety passes into affinity through convalidation, so that there is only one impediment of matrimony, for example, Gasparri,²¹⁶ Leitner,²¹⁷ D'Annibale,²¹⁸ and Vogt.²¹⁹ Each opinion does not exceed the bounds of probability, but the second seems to be preferred, both because it is highly fitting that quasi-affinity cease when true affinity supervenes, and because in practice a dispensation is not wont to be requested from both impediments, but only from the sole impediment of affinity arising from a convalidated matrimony.

²¹¹ Prael. iur. matr., 3rd ed., I, 367.

²¹² Das neue kirchl. Gesetzbuch, 2nd ed., 98.

²¹³ Das Eherecht, 7th ed., 151.

²¹⁴ De sponsal. et matrim., 3rd ed., 633.

²¹⁵ Grundriß des Eherechtes, 2nd ed., § 32.

²¹⁶ De matrim., nn. 698 and 721.

²¹⁷ Lehrb. des kirchl. Eherechtes, 231.

²¹⁸ Summula Theol. mor. III, n. 434, note 25.

²¹⁹ Das kirchl. Eherecht, § 41.