§ 2. On the Authority to Dispense

855. The Supreme Pontiff possesses the faculty of dispensing from all impediments which are not certainly of natural or divine law. Hence, for example, a dispensation cannot be granted from the impediment of the bond if it is a question of a consummated matrimony of Christians, since this is indissoluble by divine law. Likewise, the Supreme Pontiff cannot dispense from impediments arising from a defect of consent, for example, from substantial error or from a defect of the use of reason. For these impediments are of natural law. But although, speaking absolutely, the Pope could dispense from all impediments of ecclesiastical law, since he is above the whole of ecclesiastical law, nevertheless he is not accustomed to dispense from certain impediments, for example, from affinity in the direct line arising from a consummated matrimony, from consanguinity in the direct line and in the first degree of the collateral line, or from the impediment of crime arising from publicly known spouse-murder.

The Supreme Pontiff is not accustomed to exercise this faculty of dispensing immediately by himself,²⁴⁰ but a) through the Sacred Congregations of Cardinals and the Tribunal of the Sacred Penitentiary, b) through local Ordinaries, and c) through simple priests or delegated confessors. The old discipline of dispensing was greatly changed by the new Code of Canon Law. Hence, with the old abolished statutes omitted, the following things are observed according to the discipline now in force:

²⁴⁰ In extraordinary cases, especially when the dispensation must remain wholly occult, the Supreme Pontiff grants the dispensation orally.

856. 1. Dispensations granted by the Roman Curia.

a) The Sacred Congregation of the Holy Office grants dispensations from the impediments of mixed religion and disparity of worship, and likewise concerning the interpellations to be made in the application of the Pauline privilege.²⁴¹

b) The Sacred Congregation of the Sacraments grants a dispensation from the other public impediments; it grants a radical sanation and a dispensation from a ratified matrimony; it declares the legitimation of offspring. If, however, it is a question of the impediment of religious profession, the dispensation must be sought from the Sacred Congregation of Religious. All petitions for matrimonial dispensations coming from places which are still under the jurisdiction of the Sacred Congregation for the Propagation of the Faith must indeed be directed to that Congregation; nevertheless, it does not itself grant the dispensations sought, as was formerly done, but proposes the petitions to the other Congregations named above.

c) The Sacred Congregation for the Oriental Church grants all matrimonial dispensations, except those which pertain to the Holy Office, for faithful of an Eastern rite who contract matrimony either among themselves, with a faithful person of the Latin rite, or with an unbeliever.²⁴²

d) The Tribunal of the Sacred Penitentiary grants all dispensations from occult impediments and for the internal forum alone. What an occult impediment is was said above, n. 778. If an occult impediment is present together with a public impediment, and the petitioners consent to the disclosure of the matter, the dispensation must be sought from the Sacred Congregation of the Sacraments, which then grants a dispensation from both impediments. But if the petitioners refuse disclosure of the matter, the dispensation from the public impediment must be sought from the Sacred Congregation of the Sacraments, and the dispensation from the occult impediment from the Sacred Penitentiary. It is then required, however, that in the petition presented to the Sacred Penitentiary mention be made of the public impediment from which a dispensation has already been sought, or is still to be sought, from the Sacred Congregation of the Sacraments, or even from a duly delegated bishop. From the things said thus far it is evident that neither the Dataria, the Congregation for Extraordinary Ecclesiastical Affairs, nor the Secretariat of Briefs now grants matrimonial dispensations.

²⁴¹ Code of Canon Law, can. 247, § 3.

²⁴² Ibid., can. 257.

857. 2. The faculty of dispensing belonging to local Ordinaries. For the sake of clarity, we distinguish the faculty of dispensing which belongs to bishops or local Ordinaries: 1. in urgent danger of death, 2. in other cases of urgent necessity, 3. in ordinary cases.

1. "When danger of death is urgent, local Ordinaries,²⁴³ in order to provide for conscience and, if the case calls for it, for the legitimation of offspring, can dispense their own subjects wherever they are staying and all persons actually residing in their own territory, both from the form to be observed in the celebration of matrimony and from each and every impediment of ecclesiastical law, whether public or occult, even if multiple, except impediments arising from the sacred order of the priesthood and from affinity in the direct line when the matrimony has been consummated, scandal having been removed,²⁴⁴ and, if the dispensation is granted from disparity of worship or mixed religion, the customary guarantees having been given."²⁴⁵ Thus the Code of Canon Law, can. 1043.

Therefore, in order that a local Ordinary may use this faculty, it is required: a) that scandal be removed; b) that the customary guarantees be given if it is a question of a dispensation from disparity of worship or mixed religion; c) that there be no impediment of natural or divine law, nor an impediment of the priesthood, nor affinity in the direct line arising from a consummated matrimony,²⁴⁶ nor an impediment from which not even the Supreme Pontiff is accustomed to dispense, for example, consanguinity in the first degree of the collateral line.²⁴⁷ If these requirements are present, the Ordinary's faculty of dispensing is truly unlimited. Accordingly, the local Ordinary can then dispense, for example, from the presence of the witnesses or the parish priest at the celebration of matrimony, and from all impedient and diriment impediments, whether public or occult, simple or multiple; he can dispense not only his own subjects, wherever they are staying, but also all travelers and vagrants residing in his territory. He cannot, however, sanate a matrimony in its root.

²⁴³ By the name of Ordinary are understood not only diocesan bishops but also all those enumerated above, n. 759.

²⁴⁴ When a dispensation is granted to those who are marked with the sacred order of the subdiaconate or diaconate, or who have emitted solemn religious profession, notice of the dispensation imparted must be sent to the Holy Office, and meanwhile care must be taken, so far as possible, that any scandal which exists be removed, both by inducing those persons to betake themselves to places where their ecclesiastical or religious condition is unknown and, if that cannot be obtained, by imposing at least special salutary penances for expiating past excesses and for present good example. Thus the Holy Office, February 20, 1888.

²⁴⁵ Unless these guarantees, indicated above, n. 788, are given, the dispensation is always invalid. Holy Office, June 21, 1912 (Acta Apost. Sed. IV, 442 sq.).

²⁴⁶ Therefore, if affinity arose from a matrimony only ratified, it is not excluded from dispensation.

²⁴⁷ Code of Canon Law, can. 1076, § 3.

858. 2. In other cases of urgent necessity, namely, a) when an impediment of matrimony is discovered after all things are already prepared for the nuptials and the matrimony cannot be deferred without probable danger of grave evil, that is, for approximately two weeks or even a longer time outside Italy, until a dispensation is obtained from the Holy See; b) when it is a question of convalidating a matrimony already contracted, if the same danger exists in delay and there is not time to have recourse to the Holy See, bishops or local Ordinaries can dispense from all the impediments of which there was discussion in the preceding number.²⁴⁸ It is required, however, that any scandal which exists be removed and that the customary guarantees be given before a dispensation is granted from the impediments of mixed religion and disparity of worship.

Note. In these cases of urgent necessity, the Ordinary cannot dispense from the legitimate form of celebrating matrimony, that is, from the presence of the parish priest and two witnesses,²⁴⁹ although he possesses this faculty in danger of death, as was said.

3. In ordinary cases, bishops and other local Ordinaries can dispense: a) from the proclamations to be made, b) from non-reserved vows, c) from the closed time, d) from doubtful impediments.²⁵⁰ It makes no difference whether the impediment is doubtful in fact or in law. Thus the common and certain opinion. But due diligence must first be employed to resolve the doubt.²⁵¹

For practice. Unless secrecy stands in the way or there is a danger of violating the sacramental seal, it is very advantageous to direct all petitions for dispensations to the episcopal curia, which will almost always grant the dispensation sought, or obtain it from the Roman Curia, both more easily and more quickly, by virtue of special faculties.^251a

²⁴⁸ Thus the Code of Canon Law, can. 1045, §§ 1 and 2.

²⁴⁹ Thus also Linneborn, Grundriß d. Eherechtes, 2nd ed., § 14 (II). The contrary opinion of certain writers, for example, De Smet, loc. cit., n. 764, does not seem probable.

²⁵⁰ Cf. Code of Canon Law, can. 75.

²⁵¹ Cf. Benedict XIV, De syn. dioec., bk. 9, c. 12, n. 1.

^251a Cf. the admonition of the Sacred Apostolic Penitentiary (Acta Apost. Sed. XXVII, 62).

859. 3. The faculty of dispensing granted to simple priests. All priests inferior to the local Ordinary have no faculty of dispensing from matrimonial impediments. There are, however, two cases in which they can grant certain dispensations:

1. In urgent danger of death, when the local Ordinary cannot be approached, the same faculty of dispensing which would then belong to the Ordinary belongs to the parish priest or priest.²⁵² The parish priest or priest validly and licitly assisting at such a matrimony can dispense from matrimonial impediments for both the external and internal forum; he must, however, immediately, that is, within three days, inform the local Ordinary of the dispensation granted for the external forum, so that this dispensation may be noted in the matrimonial register.²⁵³ The confessor then validly and licitly dispenses from impediments only in the act of sacramental confession and for the internal forum alone.²⁵⁴ According to the present ecclesiastical discipline, therefore, an invalid matrimony can easily be convalidated if either of the contracting parties is in danger of death. For since there is then rarely time to approach the local Ordinary either personally or by letter,²⁵⁵ or the parish priest or his delegate, any priest can receive the matrimonial consent of the contracting parties and dispense both from the presence of the witnesses and from all impediments of ecclesiastical law except the two indicated above.

²⁵² Cf. above, n. 857.

²⁵³ Code of Canon Law, can. 1046.

²⁵⁴ Ibid., can. 1044. If the confessor must dispense from impediments which are public or can easily become public, he should seek from the penitent permission to speak about the dispensation granted with the competent authority, or he should convalidate the matrimony outside the sacrament of penance before two witnesses according to can. 1098, n. 2. Certain authors, such as Hilling, De Smet, and Wernz-Vidal, deny that a confessor can dispense from public impediments in danger of death; but since he possesses the same faculty as the parish priest, the affirmative opinion is probable.

²⁵⁵ The Ordinary is judged unable to be approached even though there exists the possibility of approaching him by telephone or telegraph. Thus the Pontifical Commission, November 12, 1922 (Acta Apost. Sed. XIV, 663).

860. 2. In two cases of urgent necessity, namely, if an impediment is discovered a) when all things are already prepared for the nuptials and the matrimony cannot be deferred without probable danger either of grave evil or of violation of secrecy until the local Ordinary, or the parish priest or his delegate,^255a can be approached; b) when a matrimony has already been contracted and the same danger in delay as under a) is present, the priests enumerated in n. 1 can dispense from impediments, but not from the presence of two witnesses, just as in danger of death, though only for occult cases. If the case is public, that is, if the impediment is public in law and in fact, the celebration of matrimony must be deferred, since defamation does not then arise. If the impediment is public of its nature, for example, consanguinity or the diaconate, but occult in fact, a dispensation can then also be granted, since such a case is truly occult and an occult case is not the same thing as an occult impediment. Thus the opinion today is certain.²⁵⁶ But if the occult impediment which was dispensed afterward becomes public, the Ordinary should either grant a new dispensation or ratify the dispensation previously granted. This faculty of dispensing now removes the difficulties which formerly arose in a perplexing case,²⁵⁷ but it does not extend to the external form of the celebration of matrimony.

Note. If in danger of death or in other urgent cases, according to the faculties described above, an Ordinary or priest legitimately dispenses from impediments, by that very fact the legitimation of offspring perhaps born or conceived is also granted, except, however, adulterine and sacrilegious offspring.²⁵⁸

^255a Thus, if the one assisting is not a confessor.

²⁵⁶ Pontifical Commission, December 28, 1927 (Acta Apost. Sed. XX, 61).

²⁵⁷ Cf. above, n. 731.

²⁵⁸ Code of Canon Law, can. 1051.