Section — Prümmer, Manuale Theologiae Moralis
§ 6. The Diriment Impediment of a Vow or Religious Profession
It was already said above, n. 665, concerning solemn religious profession insofar as it dirimes a preceding ratified matrimony. Likewise, it was already said, n. 780 ff., concerning vows which do not dirime but prohibit matrimony from being contracted. It remains that we speak of the vows which dirime a matrimony to be contracted.
816. Extent of the impediment. According to the discipline now in force, the following vows dirime a matrimony to be contracted:
a solemn vow emitted in religious orders strictly so called;129
a simple vow emitted in the Society of Jesus.
That a solemn vow emitted in religious orders dirimes a matrimony to be contracted is evident both from the Decretals,130 from the Council of Trent,131 and from the Code of Canon Law, can. 1073. But in which religious institutes solemn vows are found is a question of fact and cannot be determined by a general rule. In certain regions, as, for example, in France, Belgium, Bavaria, and North America,132 women rarely or not at all emit solemn profession. - It is evident of itself that religious profession does not produce this effect if it was invalid, for example, because of grave fear, because of defect of the essential formalities, etc.133
Simple vows pronounced by scholastics of the Society of Jesus after the two years of novitiate dirime a subsequent attempted matrimony.134
Several authors, among whom are Benedict XIV135 (not indeed as Pope, but as a private author), Sanchez,136 Tanquerey,137 and Gasparri,138 teach that even the simple vow of chastity emitted by a spouse remaining in the world, while the other spouse, with the free consent of the former, enters religion or receives sacred orders after the consummation of the matrimony, is equivalent to a solemn vow and therefore dirimes a subsequent matrimony; but this opinion is deservedly rejected by almost all moderns, because neither a solid argument nor any text of law can be adduced for it.139 Therefore, if such a spouse who emitted a simple vow of chastity contracted matrimony after the death of the other spouse, he would act validly but illicitly. For he ought first to obtain a dispensation from the simple vow of chastity. - Besides, present discipline has been changed in this matter, since no one joined in matrimony can enter religion or receive sacred orders without the previous permission of the Holy See.
129 This power of a solemn vow is already indicated not obscurely in c. 27, C. 27, q. 2: "It is not lawful for parents to give an espoused girl to another man; it is lawful, however, for her to choose a monastery for herself." Certainly several authors, for example, Berardi, Wernz, etc., think that this text did not emanate from Pope Eusebius (about the year 300), since monasteries did not yet exist at that time; but whatever may be true concerning this opinion, the text is certainly most ancient. Mention of it is already made in the Penitential of Theodore of Canterbury, bk. 2, c. 12, n. 33 (in Schmitz, Die Bußbücher, etc., 547); in the Decree of Ivo of Chartres, pt. 7, c. 40; in the Sentences of Peter Lombard IV, dist. 27; and in other authors. All these things demonstrate that this most ancient text was held in great esteem. But although the text says "an espoused girl," nevertheless there is no discussion there of mere betrothals, but of the so-called betrothals de praesenti, which are nothing other than a ratified matrimony. - Furthermore, already in the most ancient times consecrated virgins or monks attempting matrimony were not only gravely punished but were also compelled to separate from their spouses (cf. Council of Tours, 567, can. 15). This is an evident sign that already in the first centuries a solemn vow or religious profession was held to be a diriment impediment of matrimony. Cf. Wernz-Vidal, Ius can. V, n. 298; and especially Weckesser in Arch. f. kath. Kirchenr. LXXVI, 83. Finally, after the Second Lateran Council (in Gratian, c. 40, C. 27, q. 1), the matter was plainly defined by Boniface VIII (c. unic., III, 15 in VI°), by the Council of Trent (sess. 24, can. 9, on the sacrament of matrimony; Denz., n. 979), and by the Code of Canon Law, can. 1073.
130 Boniface VIII, having been asked by the Bishop of Bourges what vow ought to be called efficacious for diriming matrimony, responded: "We have judged that it must be declared by the oracle of a sanction that only that vow ought to be called solemn with respect to diriming a matrimony contracted afterward, which was solemnized through the reception of sacred order or through an express or tacit profession made in one of the religious institutes approved by the Apostolic See. But the other vows, although they sometimes impede a matrimony to be contracted, ... nevertheless cannot rescind it after it has been contracted" (c. unic., III, 15, in VI°). From these words it seems clearer than light that no vows other than these two, namely, the solemn vow of religion and the vow emitted in the reception of sacred order, dirime a subsequent matrimony.
131 "If anyone says that clerics constituted in sacred orders or regulars who have solemnly professed chastity can contract matrimony and that the matrimony contracted is valid, notwithstanding ecclesiastical law or the vow, and that the contrary is nothing other than to condemn matrimony, ... let him be anathema" (sess. 24, can. 9, on the sacrament of matrimony; Denz., n. 979).
132 According to Leitner (Lehrb. d. kirchl. Eherechtes, § 28, p. 175), solemn profession is emitted in four Visitation convents in Georgetown, Baltimore, Mobile, and St. Louis.
133 Cf. our Man. iur. can., q. 213.
134 Gregory XIII, Constitution Ascendente Domino, May 25, 1584.
135 De syn. dioec., bk. 13, c. 12, n. 16.
136 De matrim. VII, disp. 40, nn. 1-3.
137 De matrim., n. 950.
138 De matrim. I, n. 575.
139 Cf. Scharnagl, Das feierliche Gelübde als Ehehindernis, 195.
817. Cessation of this impediment. Although, according to the opinion of several very grave authors140 (which St. Alphonsus calls more probable141), a solemn vow dirimes matrimony by divine law, nevertheless the Supreme Pontiff, as the vicar of Christ, can, when a grave cause exists, concede permission that someone solemnly professed may validly and licitly enter matrimony, just as for the gravest reason he can also permit a consecrated chalice to be employed for profane uses. - By an indult of secularization, a dispensation from vows is conceded by that very fact, unless, however, the secularized person is constituted in sacred orders.142 How a dispensation from this impediment can be conceded in danger of death and in other more urgent cases will be said below, n. 866 ff.
The impediment of the simple vow emitted by scholastics of the Society of Jesus ceases by the very fact that one professed in this manner has been legitimately dismissed by the superior general of the Society.143
140 In favor of this opinion stand St. Thomas (bk. 4, dist. 38, q. 1, a. 3, sol. 3), St. Bonaventure (on bk. 4, dist. 38, a. 2, q. 1), Valentia (on 2, 2, disp. 6, q. 6, punct. 5), Victoria (Relect. IV, De potestate Papae, prop. 1, ad 1 arg.), and several others, especially Thomists; and among moderns Rosset (De sacr. matrim., n. 1676), who says: "A solemn vow of religious profession, both by its own force or natural law and by divine law, has the power of diriming a matrimony to be contracted, apart from any ecclesiastical law whatsoever." But modern authors more commonly teach that this impediment dissolves matrimony by ecclesiastical law alone; yet their argument, derived from the words of Boniface VIII and Gregory XIII, does not seem probative.
141 Theol. mor., bk. 6, n. 1025.
142 Code of Canon Law, can. 640.
143 Gregory XIII, Constitution Ascendente Domino, May 25, 1584.
818. Penalties against the solemnly professed who attempt matrimony.
- Excommunication simply reserved to the Holy See. Regulars (whether men or women) who, after a solemn religious profession validly emitted, presume to contract even a civil matrimony, and also all who presume to contract matrimony with any of the aforesaid persons, by the fact itself incur excommunication simply reserved to the Holy See.144
Therefore, for this excommunication truly to be incurred, it is required:
a) that these persons presume to contract a true matrimony (although it is civil and even if other diriment impediments obstruct it).145 But if they intend nothing other than concubinage, the excommunication does not reach them;
b) that there be presumption, that is, knowledge of the censure and freedom in contracting the matrimony; therefore, if the contracting parties are ignorant of the censure (but not through affected ignorance), or if they enter matrimony under coercion or because of grave fear, they do not incur the excommunication.146 Ignorance of the censure is sometimes found in lay persons who contract matrimony with the solemnly professed.
Scholastics of the Society of Jesus, simply professed, who attempt matrimony do not incur this censure, because their profession is not solemn.
Irregularity from delict, which in the Code of Canon Law, can. 985, n. 3, is extended also to those who are bound by simple vows. For religious profession is held to be a matrimony between the soul and Christ, and therefore through a new matrimony such a person becomes as though a bigamist. But nuns (who are incapable of irregularity) are excluded from those offices to which only virgin nuns can be admitted by particular law.
Dismissal from the order. For by the fact itself those religious are to be held as legitimately dismissed who attempt or contract matrimony, or even a so-called civil bond.147
By the particular law of diverse orders, grave penalties are still wont to be established against transgressors of the vow of this kind, who, if they are clerics constituted in sacred orders, furthermore incur the penalties against concubinarians.148
144 Code of Canon Law, can. 2388. Formerly this excommunication was reserved to the Ordinary.
145 Holy Office, January 13, 1892.
146 For every diminution of imputability, whether on the part of the intellect or on the part of the will, exempts from penalties imposed against those who presume. Code of Canon Law, can. 2229, § 2.
147 Code of Canon Law, can. 646, § 1, n. 3.
148 Ibid., can. 2359.