§ 5. On the Methods of Executing a Dispensation Obtained

871. The general rule, to which only a few exceptions stand opposed, can be stated as follows:

According to the discipline now in force, the Roman Curia is wont to grant matrimonial dispensations in commissorial form; bishops, however, using either their own or delegated authority, dispense in gracious form, at least if it is a question of public impediments.

Dispensations granted in gracious form do not of their own nature require an executor.²⁷⁹ Dispensations granted in commissorial form, however, obtain their effect only when they are legitimately committed to execution, or, as they say, "fulminated." For public impediments the Roman Curia is wont to commit the execution of the dispensation to the Ordinary of the petitioners or to the Ordinary of the place. Such an Ordinary is the one "who gave the testimonial letters or transmitted the prayers to the Apostolic See, whether he be the Ordinary of origin or of domicile, of each spouse or of either of them."²⁸⁰ This Ordinary must execute the dispensation in writing and can dispense "even if the spouses, at the time when the dispensation is to be committed to execution, have left their domicile or quasi-domicile in that diocese and have departed into another diocese, never to return, provided, however, that the Ordinary of the place in which they desire to contract matrimony has been notified."²⁸¹ For occult impediments, the execution of the dispensation is wont to be committed "to the proper parish priest of the bearers, or to a confessor chosen, or to be chosen, by them from among those approved by the local Ordinary." In practice, dispensations of this kind are wont to be committed to execution in the confessional. If the impediment affects only one penitent, for example, a vow of chastity, that one alone is to be dispensed; but if the impediment affects both contracting parties, for example, the impediment of crime, each is then to be dispensed, although by different confessors. But even in this case, a dispensation granted and fulminated to one and not to both is valid, as was already indicated above, n. 866, concerning the petition for a dispensation.

Note. All who grant a dispensation by power delegated by the Apostolic See are to make express mention of the pontifical indult in that dispensation.²⁸²

²⁷⁹ Ordo serv. in C. R., special norms, c. 3, a. 4 (Acta Apost. Sed. I, 63).

²⁸⁰ Holy Office, February 20, 1888.

²⁸¹ Code of Canon Law, can. 1055.

²⁸² Ibid., can. 1057.

872. Clauses added. Upon receiving the Rescript, the delegate must diligently attend to all the clauses added,²⁸³ of which the principal ones are the following:

1. "If the things stated are true." Regularly, for the validity of the dispensation it is required that, at the moment of fulmination, all the things stated in the petition be true, at least as regards their substance. Only impediments of the lesser degree are excepted;²⁸⁴ concerning these it is established that all such dispensations are subject to no defect of obreption or subreption. It matters little whether, in impediments of this kind, the dispensation was obtained immediately from the Sacred Congregation of the Sacraments or through the mediation of bishops to whom a habitual faculty of dispensing has been granted. It is not so certainly established whether obreption, the statement of what is false, and subreption, the withholding of what is true, which do not invalidate the dispensation granted, can extend to the impediments themselves, of the lesser degree, from which dispensation is to be given, or only to the causes alleged for obtaining the dispensation. It seems more probable that obreption and subreption can extend only to the causes of the dispensation; and therefore, even according to the modern discipline, the dispensation obtained is invalid if the impediment itself has been declared in an altogether false manner.²⁸⁵ This is sufficiently evident because the Pontiff does not speak of the impediments themselves, but only of the causes of the dispensation, saying that in these cases he always grants a dispensation "for reasonable causes," that is, not moved by the causes adduced by the petitioners.²⁸⁶ From the things said, and supposing them to be true, follows the solution of the two following cases:

Caius seeks a dispensation from the impediment of affinity in the second degree of the collateral line; but in fact he has contracted consanguinity in the third degree of the collateral line. The dispensation obtained seems to be invalid because obreption was committed concerning the impediment itself; for affinity and consanguinity are entirely different things, although each is numbered among the impediments of the lesser degree.

Peter seeks a dispensation from the impediment of consanguinity in the third degree of the collateral line, alleging as the cause for the dispensation sought the preservation of the woman's reputation, since she is pregnant from illicit intercourse. The dispensation is granted, but the alleged cause was false because the woman was not pregnant. Nevertheless, the dispensation remains valid notwithstanding the defect of obreption. Thus, saving a better opinion.

Therefore, before the execution of the dispensation, it must be investigated whether the things stated in the petition presented were true, or the so-called "verification of the prayers" is necessary. By common law no special method of this verification is prescribed, but it suffices to make a brief investigation as to whether the things adduced in the petition are in fact true. In certain dioceses, however, determined questions to which answers must be given are indicated by particular law.²⁸⁷

²⁸³ Concerning the observance of these clauses, three things must be noted: 1. "The clauses are to be observed exactly, insofar, however, as the circumstances of affairs, times, and places can permit." Thus the Holy Office, June 15, 1875 (Collectan. de Prop. Fide, n. 1444). 2. "The omission of clauses does not affect the validity of the grant, provided that the woman was not in fact abducted, or, if abducted, is not in the power of the abductor." Thus the Sacred Congregation for the Propagation of the Faith, January 26, 1877 (Collectan. de Prop. Fide, n. 1466). 3. "Conditions in Rescripts are then alone judged essential for their validity when they are expressed by the particles if, provided that, or another of the same signification." Thus the Code of Canon Law, can. 39.

²⁸⁴ Cf. above, n. 778 (e).

²⁸⁵ Thus also De Smet, loc. cit., n. 867.

²⁸⁶ Cf. Code of Canon Law, can. 1054.

²⁸⁷ Such questions prescribed for the Archdiocese of Cologne may be seen in Vogt, Das kirchl. Eherecht, § 52; for the Diocese of Bruges, in De Smet, De sponsal. et matrim., n. 873.

873. 2. "A grave salutary penance having been imposed upon them according to the measure of the fault at your discretion." This penance is wont to be called juridical and is distinct from sacramental penance. According to an admonition of the Sacred Penitentiary of April 8, 1890, the executor of the dispensation, "in determining the quality, gravity, duration, etc., of the penance, is to exceed the bounds neither of severity nor of humanity and is to take account of the condition, age, infirmity, office, sex, etc., of those upon whom the penalty to be inflicted is enjoined." Moreover, the same Sacred Penitentiary replied on December 14, 1891 that "the omission of this imposed penance does not render the dispensations sought invalid"; but it must be imposed even if the confessor, without recourse made to the Sacred Penitentiary, dispenses in an urgent case from a culpable impediment, for example, crime. The penance to be imposed is distinguished as salutary, grave, or grave and prolonged.²⁸⁸

3. "These having been torn immediately," that is, the Rescript obtained from the Sacred Penitentiary must be torn or burned at least within three days after the dispensation has been fulminated.²⁸⁹ Nothing prevents the confessor, however, from transcribing this Rescript for his instruction and prudently preserving the transcript for himself. In the transcription, however, everything which could perhaps lead to knowledge of the penitent for whom the dispensation was obtained must be omitted. If it sometimes happens that the penitent for whom the dispensation was sought does not immediately return, or does not return at all, to the confessor, the response of the Sacred Penitentiary of February 29, 1904 is to be observed: "The faculty endures even after the letters have been burned; nevertheless, it is permissible to retain them, the danger of loss having been removed, as long as it is probable that the penitent will appear."²⁹⁰

There are still several other customary clauses which can easily be understood, for example, "after sacramental confession has first been heard," "the occasion of sin having been removed," etc. For understanding the clause "provided that the impediment is occult," however, the things said above, n. 778, concerning the division of impediments must be recalled. The execution of the dispensation itself must be given in writing for the external forum. Therefore, the parish priest must note in the matrimonial register that a dispensation from such an impediment has been granted; but he must preserve the Rescript itself in the parish archive. For the internal forum it is wont to be prescribed that absolution from censures and sins be given and the dispensation pronounced; this can be done in this or a similar manner: after the customary absolution from censures and sins, let the confessor say: "Moreover, by apostolic authority specially delegated to me, I dispense you from the impediment of affinity, or of crime, so that, notwithstanding it, you may be able to contract matrimony with the said woman. By the same authority I declare the offspring received or to be received legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen. May the Passion of Our Lord Jesus Christ, the merits of the Blessed Virgin Mary, etc."²⁹¹ For a reasonable cause, the fulmination of the dispensation can also be made in the vernacular language.²⁹²

²⁸⁸ According to De Smet, loc. cit., n. 871, the Ordinary of the Diocese of Bruges is wont to impose as a salutary penance the daily recitation of five Our Fathers and Hail Marys for fifteen days; as a grave salutary penance, the daily recitation, for four weeks, of three Our Fathers and Hail Marys and, once, acts of faith, hope, charity, and contrition; as a grave and prolonged penance, the performance of this grave penance for two months. When the clause concerning confession once in each month for a time to be established at the discretion of the one dispensing is added, it is prescribed that they confess once in each month for four months.

²⁸⁹ Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1143.

²⁹⁰ Cf. Linzer Theol. Quartalschrift (1905), 382.

²⁹¹ Other authors prefer that a dispensation from impediments be given before sacramental absolution. Here is an example of a formula proposed by De Smet, loc. cit., n. 886: "May Our Lord Jesus Christ absolve you, and by His authority I absolve you from every bond of excommunication and interdict, especially from the excesses committed, and also from the penalties and censures which you may perhaps have incurred because of the foregoing, insofar as I am able and you are in need. Moreover, by apostolic authority specially delegated to me, I dispense you from the impediment of crime arising from adultery and a promise given, so that, notwithstanding it, you may be able publicly to contract matrimony with the woman whom you intend to marry, in the form of can. 1094, to consummate it, and to remain in it. By the same authority I announce and declare that the offspring received and to be received will be legitimate. In the name of the Father, etc. Thereafter, I absolve you from your sins in the name of the Father, etc. May the Passion of the Lord, etc." This formula seems to be too long for the confessional and contains several superfluous things.

²⁹² Cf. Leitner, Lehrb. d. kirchl. Eherechtes, 454.

874. Scholion. On defects of a dispensation and their sanation. A matrimonial dispensation can be vitiated in various ways, namely, a) on the part of the one granting it, who lacks the necessary authority, for example, if a dispensation was denied by the bishop and afterward granted by his vicar general without the express consent of the bishop; b) on the part of the one executing the dispensation, who does not observe the essential clauses;²⁹³ c) on the part of the one seeking the dispensation, who in good or bad faith has alleged a falsehood, or against whom some censure has been imposed by a condemnatory or declaratory sentence.²⁹⁴ Today, after the Roman Curia was reformed by Pius X, defects invalidating a dispensation can occur quite rarely.

In the first place, a dispensation is vitiated if in bad faith something false was declared in the petition for the dispensation. For "fraud and deceit ought not to support anyone," and "a lying petitioner ought to be deprived entirely of the things obtained." Thus at least if it is a question of a dispensation from the impediments of the greater degree enumerated above, n. 778.²⁹⁵ Therefore, any fraud voluntarily employed to obtain a dispensation from impediments of this kind vitiates the dispensation. Perhaps the matter is otherwise if it is a question of a dispensation obtained from an impediment of the lesser degree, where obreption or subreption no longer stands in the way of the validity of the dispensation, as was said above, n. 872.

If an error has entered the petition in good faith, the grant of the dispensation is invalid if the error was substantial. An error is judged to be substantial a) if it concerns the single motive cause; but if, among several motive causes adduced, at least one is true, the dispensation is not invalidated;²⁹⁶ b) if at the time of the grant of the dispensation a notable difference in the impediment supervenes or is discovered, for example, if it is discovered that not only simple but also multiple consanguinity is present. A dispensation granted from an impediment of consanguinity or affinity in some degree of the impediment is valid, however, even if an error concerning the degree entered the petition or the grant, provided that the degree truly existing is lower; or even if another impediment of the same species in an equal or lower degree was withheld. Thus the Code of Canon Law, can. 1052.

When a defect invalidating the dispensation has been discovered, either a new dispensation or the so-called letters Perinde valere, "To Have Equal Force," must be sought. The whole case must be set forth in the competent forum in exactly the same manner as if nothing had thus far been done. Accordingly, for an error committed concerning public impediments, recourse must be made to the bishop, who is wont to have broad faculties concerning these letters Perinde valere. But if the dispensation obtained was invalid because of an occult defect, the dispensation from which pertains to the Sacred Penitentiary, recourse must also be made to this tribunal for the sanation of the vitiated dispensation. In this last case recourse to the bishop also lies open, provided that there is no danger of violating secrecy or the sacramental seal.

²⁹³ Which clauses are essential was said above, n. 872, note 283.

²⁹⁴ Code of Canon Law, can. 36, § 2.

²⁹⁵ Cf. Ordo serv. in C. R., special norms, c. 7, a. 3, n. 20 (Acta Apost. Sed. I, 91).

²⁹⁶ Code of Canon Law, can. 42.