§ I. On Diriment Impediments in General

I say 1°. The Church has the power of constituting diriment and impeding impediments of Marriage. It is established from the definition of the Council of Trent, sess. 24, can. 4: "If anyone shall say that the Church could not constitute impediments diriment of Marriage, or erred in constituting them, let him be anathema." It is established also from theological reason; for the Church has the power of decreeing what is required for the right and decent administration of the sacraments.

"Therefore Christ, when He had renewed marriages to such and so great an excellence, entrusted and commended their whole discipline to the Church. To establish and prescribe concerning the Sacraments, by the will of Christ, the Church alone can and must do so, such that it is plainly absurd to wish even the smallest part of her power to have been transferred to the rulers of civil affairs." Leo XIII, Encyclical Epistle, Arcanum.

I say 2°. § 1. It belongs only to the supreme ecclesiastical authority to declare authentically when divine law impedes or invalidates marriage.

§ 2. To the same supreme authority belongs privately the right of constituting other impeding or diriment impediments of marriage for the baptized, by way of law either universal or particular (Can. 1038).

This is clear from the Council of Trent itself, sess. 24, can. 12, where it defined that matrimonial causes pertain to ecclesiastical judges. Indeed, since Marriage has been elevated by Christ to the dignity of a sacrament, it is necessarily subject to spiritual power alone. And although in it the nature of contract and the nature of sacrament are distinguished, nevertheless in reality they are one and the same thing, and therefore the whole of Marriage pertains to the Church alone.

Question 1. Does an invincibly unknown impediment invalidate Marriage contracted with it?

Resp. Affirmatively, as is expressly asserted in Canon 16, § 1:

No ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said.

Hence if, once Marriage has been contracted, a spouse certainly detects a diriment impediment by force of which there was no Marriage, he cannot ask the debt nor render it, even if he were compelled to this by threat of death, because the conjunction would be fornicary, which in no case is licit. Some except the case unless the woman should have herself merely passively, so that she would cooperate with such an act altogether materially; but neither should this be conceded, since it is a question of a thing intrinsically evil, unless, according to a probable opinion, the woman is compelled to this by fear of death, nevertheless with the danger of consent excluded.

Question 2. Are those impediments also incurred, although unknown, which seem to have the nature of penalty, such as the impediment of crime?

Resp. Affirmatively, as is established from Canon 16, § 1 cited above.

Question 3. Is it licit to contract Marriage with a doubtful or probable impediment?

Resp. In relation to ecclesiastical laws, the New Code says thus:

Even invalidating laws do not urge in a doubt of law; in a doubt of fact the Ordinary can dispense in them, provided it is a question of laws in which the Roman Pontiff is accustomed to dispense (Can. 15).

In a doubt of divine law the Church is accustomed to settle the matter. In a doubt of fact concerning the impediment of impotence, or of kinship in the first degree, or of bond, it belongs to the Church also to resolve the case. In the first impediment, the native right is deemed to prevail until the existence of the impediment is undoubtedly established: "It is publicly pernicious to prohibit men from marriage in such a doubtful matter"; thus D'Annibale. In the case of bond, the prior wedlock is in possession until it is broken off; and in the case of kinship, in a similar way it is not to be entered without consulting the Apostolic See. In reality, in doubtful impotence it ought not to be impeded, otherwise than in that doubtful kinship and bond. Cf. Can. 1068, § 2; Can. 1076, § 3.

Question 4. Is it licit for spouses to use marriage if after the nuptials have been entered a doubt concerning some impediment arises?

Resp. Negatively, until sufficient inquiry concerning the truth has been made. Nevertheless, if only one doubts, although he cannot ask the debt, nevertheless he must render it to the other asking in good faith. But otherwise one must speak if, after serious diligence has been employed for detecting the truth, the doubt still remains, because in doubt one must stand for the value of the act. - Cf. S. Alphonsus, nn. 903 and 904.

Question 5. Is Marriage contracted with an impediment thought to exist, but not existing, valid?

Resp. If the contracting party is not altogether certain concerning the impediment, but in some way doubts concerning it, the Marriage is valid. The reason is that he contracts at least conditionally, namely, insofar as I can, although he does not reflect upon that condition; therefore, the impediment not existing, consent is already present as absolute. - But if he contracts with certainty of the impediment, yet grieving over the impediment and not daring to disclose it lest the Marriage be impeded, or lest he be made infamous, or from some inadvertence, it is disputed; but more probably the Marriage is valid on account of the predominant will of contracting it. - Nevertheless, for caution in practice, he would have to be induced to renew consent. - Cf. Lacroix, n. 525; Heiss, § 12 and § 26, v.

Question 6. Are heretics bound by the matrimonial impediments of the Church?

Resp. Affirmatively, prescinding from clandestinity and disparity of cult, concerning which we will treat afterward. Those validly baptized, although by heretics, by force of the sacrament itself are made members of the Catholic Church. Besides, we have as established that "those baptized by heretics, if they come to that age in which they can by themselves discern good things from evil, and adhere to the errors of the one baptizing, are indeed repelled from the unity of the Church, but are not freed from her authority and laws. Let Anacletus be consulted, who, adhering to the aforesaid opinion, established that marriages entered by heretics are invalid if a diriment impediment sanctioned by the Church, either by universal law or by common custom which obtains the force of law, intervenes." Thus Benedict XIV, Const. Singulari nobis.

Question 7. Is it licit for the State to decree anything concerning the marriages of the faithful?

Resp. Affirmatively; the civil State can dispose the civil effects of marriage: "But by civil law," declared Leo XIII, Arcanum, "only those things can be ordered and administered which marriages bring forth of themselves in the civil order." Hence princes can rightly make law concerning taking care that legitimately entered wedlocks be inserted in the registers of the civil State; concerning dignities and honorific titles, concerning the right of the wife or offspring in participating in these, etc. But they cannot deny civil effects inseparably connected with the validity and liceity of a validly and licitly entered marriage on account of some violated civil law. They can punish the omission of civil prescriptions as regards separable effects by denying these effects. Since it is incumbent upon a Catholic man to obey just laws, it is not licit for him to neglect the prescriptions which the State establishes concerning civil effects according to its competence. - Cf. Card. Rauscher, Instructio; Wernz, vol. 4, n. 82 and following; Van de Burgt, p. 78; cf. Can. 1016.

Question 8. What is it not licit for the State to decree concerning the Marriages of the faithful?

Resp. Since Christ raised marriages to the nature of a Sacrament, He entrusted their whole discipline to the Church. Leo XIII, Arcanum. Therefore any law issued by civil power which would regard the conjugal contract itself, by which the State would thrust itself into the administration of the Sacrament, which would impose conditions necessary for entering duly, which would determine whether the betrothed are capable and fit for contracting nuptials, or would establish the other circumstances by which marriage would be entered honorably and holily, validly and licitly, or which would dispose concerning effects which are essential to the contract and inseparable from it, such as the obligation of cohabitation of spouses, legitimacy of offspring, paternal authority, any such law, I say, is a sacrilegious usurpation of another's right. - Leo XIII, Il divisamento, 8 Feb. 1893. Then he recalls "the unjust and sacrilegious plan undertaken as regards the wedlocks of soldiers, by which, just as after they have entered nuptials conjugal separation is enjoined on them, so before they enter the same, nuptials are interdicted. And thus we seem to have returned to the old and savage barbarism which dared to deprive men of a right implanted by nature itself, and for the uprooting of which the Church labored so greatly." Besides, the State does not have the right of imposing virginity; for this gift of perfect continence is not granted to all, and according to the saying of the Apostle: it is better to marry than to burn. I Cor. vii, 9. Moreover, it belongs altogether to the Church to bring judgment concerning the moral law and morals, not otherwise than concerning the deposit of holy faith. "But to discern and judge whether in certain circumstances of affairs it is fitting to enter wedlock or rather to abstain from it is a matter which regards the moral law and the honesty of morals." Therefore all new laws concerning eugenic marriages passed among us violate the power itself of the Church and the right which any human being possesses as implanted in him by nature itself, and the exercise of which precedes the constitution of civil society. - Cf. Leo XIII in the same Epistle, 8 Feb. 1893.

The right of entering marriage belongs to man from the natural law itself, and therefore also the right of founding a family. Therefore the State cannot take away this right or impede him from using it, so long as the natural law permits. Hence neither can the State without sin against this law impede the object of this right, which is the generation and education of offspring; hence it cannot impede the generation or education of offspring: "nor can any human condition effect that man be deprived of those means which are necessary for procreating and educating the number of children which nature permits to be received." - Pottier, De Jure et Justitia, p. 169.

Therefore the State has no power of founding impediments of marriage, whether diriment or impeding. But to establish and prescribe concerning the sacraments, by the will of Christ, the Church alone can and must do so, such that it is absurd to wish even the smallest part of her power to have been transferred to the rulers of civil affairs. Leo XIII, Arcanum.

Question 9. Is it licit for the civil State to establish diriment impediments of the marriage of unbelieving subjects?

Resp. Negatively, altogether, if the question is of impediments to be established against natural and divine right itself by arbitrary means. Otherwise, it is much disputed; but the pleasing opinion of very many moderns is affirmative. The reason is that natural matrimonial right is neither complete nor determined on every side; therefore some power is required which determines and orders it authoritatively. But such a power is not the Church, which does not have jurisdiction over unbelievers; nor the family, which is indeed unsuitable; nor private persons, who are not legitimate arbiters in their own causes. Therefore only the civil State is left, which may settle the matter and rule subjects by coercion, judgment, and law. It is proved by authority: ancient theologians commonly, and now very many, have embraced this opinion. - Suarez, De Legibus, L. 9, C. 21, nn. 5, 6; Schmalzgrueber, vol. 4, n. 367; D'Annibale, vol. 3, n. 425; Wernz, vol. 4, n. 75; Resemans, De competentia civili in vinc. conj. infidelium, passim; Gasparri, n. 290; Genicot, n. 467; Van de Burgt, n. 43a III; De Smet, n. 224, says: "the affirmative opinion is pleasing"; Noldin, n. 518; Aertnys, n. 454; Chabagno, "Le Mariage des Infideles," and others. Finally, the Sacred Congregation de Prop. F., 5 Dec. 1631, transmitted the following response to the Orator: Opinion of the theologians, etc.: "Polygamous Indians who with all their wives are converted to the faith and are baptized are bound to dismiss all wives except the first, who alone is the true wife, if no impediment of natural right or of positive right established by their prince intervened in that marriage"; concerning the authenticity of this response no doubt is raised, but it is transmitted as the opinion of the theologians. "An unbelieving man who had entered marriage with an unbelieving woman, with a certain ceremony omitted, whose omission according to the Tonkin registers is deemed a diriment impediment of marriage, departed from that woman and took another Christian wife; embracing the Christian faith, he seeks baptism." Concerning this cause it was asked: "In one word, does a diriment impediment sanctioned by an unbelieving Prince, or introduced among an unbelieving people by ancient and common custom, render void and invalid marriages contracted between unbelieving men and women with such an impediment?" R. "That the first and second marriage are null; that hence there is no place for interpellation, but there is place for a new marriage, with those things observed which must be observed, and let instruction be given." S. C. de Prop. F., 26 June 1820. Nevertheless it must be confessed that the matter is not certain on every side: "Since marriage is by its force, by its nature, sacred, it is fitting that it be ruled and tempered, not by the command of princes, but by the divine authority of the Church, which alone has the magisterium of sacred things." Leo XIII, "Rerum Nov." Indeed, speaking of a certain peculiar note of marriage, he says: "Since marriage has God as author and was even from the beginning a certain foreshadowing of the Incarnation of the Word of God, therefore there is present in it something sacred and religious, not adventitious, but innate. ... Wherefore Innocent II and Honorius III, Our predecessors, were able to affirm, not unjustly nor rashly, that among the faithful and unbelievers there exists the sacrament of wedlock." "No law of men can take away from man the natural and primordial right of wedlock, or in any way circumscribe the principal cause of nuptials constituted by the authority of God." ... "Behold therefore the family or domestic society, very small indeed, but a true society, and the same older than every city, to which therefore there must be certain rights and duties of its own, which in no way depend upon the republic." Rer. Nov.

Besides, the affirmative opinion can be practically dangerous to the individual, the family, and the state. Indeed, in this question concerning the power of the state around various matters, we judge that the opinion of Pesch is to be followed: No power is to be attributed to the civil republic in private and religious matters which cannot be evidently proved. Vol. 7, p. 445. - Martin, De matrimon., p. 11, page 184; Perrone, De matrimon., II, 443 and following; Lehmkuhl, n. 951, note.

But if the Church granted a dispensation in disparity of cult so that a Catholic entered a matrimonial covenant with a non-baptized non-Catholic woman, and she was not yet in the eighteenth year of age, such a wedlock, duly entered before the Church, would be held as valid, although the State required that year for contracting validly. - Wernz holds the same, vol. 4, nn. 60, 77, note 221. Careful caution is to be used against the practical solution of cases according to some opinion not sanctioned by the Church, to whom alone it belongs to settle the matter.

Question 10. To whom alone does it belong authentically to declare when divine law impedes or invalidates marriage?

Resp. It belongs only to the supreme ecclesiastical authority to declare this authentically, because this alone is the infallible interpreter of divine law. - Cf. Can. 1038, § 1.

Question 11. Can Ordinaries of places prohibit marriages by a veto, or add an invalidating clause to a veto?

Resp. § 1. Ordinaries of places can prohibit marriages in a particular case to all actually staying in their territory and to their subjects even outside the limits of their territory, but only for a time, from a just cause and while it endures.

§ 2. The Apostolic See alone can add an invalidating clause to a veto (Can. 1039).

Question 12. Who can abrogate impediments, derogate from them, and dispense in them?

Resp. The Roman Pontiff alone, in whom alone there is supreme power. And just as it belongs to the supreme power alone to found them, whether diriment or impeding, so it belongs to him alone to abrogate them, etc., unless this has been conceded by common law or by special indult. Thus Canon 1040 of the Code established.

Apart from the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impeding or diriment, or derogate from them; likewise neither can anyone dispense in the same, unless by common law or by special indult from the Apostolic See this power has been conceded (Can. 1040).

Question 13. What is the force of custom concerning impediments?

Resp. Absolutely no force of custom belongs in this matter. Thus the Code: A custom inducing a new impediment or contrary to existing impediments is reprobated (Can. 1041).

The reason is that experience teaches that, on account of the multitude of prohibitions, marriages are many times contracted ignorantly in prohibited cases, in which dispensation is in no way or not without great scandal given. Council of Trent, sess. 24, de ref. matrimonii.

Question 14. Of how many degrees are impediments?

Resp. § 1. Some impediments are of lesser degree, others of greater.

§ 2. Impediments of lesser degree are:

1°. Consanguinity in the third degree of the collateral line;

2°. Affinity in the second degree of the collateral line;

3°. Public honesty in the second degree;

4°. Spiritual kinship;

5°. Crime from adultery with promise or attempted marriage, even through a civil act only.

§ 3. All others are impediments of greater degree (Can. 1042).¹

¹ Cf. Addenda, p. 1123, n. 78.