Chapter III: Affinity and the New Code

THE Church has frequently changed her discipline with regard to affinity, and the drastic changes on the subject which have been inserted into the new Code of Canon Law are a good example of the fearlessness with which the Church uses her authority when changed circumstances seem to require it. The ecclesiastical law now in force on the subject is stated in the new Code in a few simple but far-reaching canons.

Canon 97. " § 1. Affinity arises from valid marriage whether ratified only or ratified and consummated. " § 2. It exists only between the man and the relations by blood of the woman, and also between the woman and the relations by blood of the man. " § 3. It is so reckoned that those who are the relations by blood of the man are the relations by marriage of the woman in the same line and degree, and vice versa"

Canon 1077. " § 1. Affinity in the direct line annuls marriage in every degree; it annuls it in the collateral line to the second degree inclusively. " § 2. The impediment of affinity is multiplied:

" 1°. As often as the impediment of consanguinity is multiplied from which it proceeds; " 2°. By the successive repetition of marriage with a relation of a dead spouse."

The first section of Canon 97 changes the very notion of affinity as it has been understood in ecclesiastical law from very early times. Practically it adopts the definition of affinity which was accepted in Roman Law, and which has been followed by most modern legal systems. Affinity therefore, now, in ecclesiastical law arises only from ratified Christian marriage. It does not arise from the marriage of unbaptized persons, and probably not even from the marriage of a baptized person with another not baptized. It does not arise from carnal intercourse, whether licit between married people, or illicit between those who are not married. This simple change sweeps away some very irksome difficulties which frequently occurred under the old ecclesiastical legislation. According to the law as it existed before the new Code came into force, and which still governs cases which happened before that date, affinity arose only from carnal intercourse. It annulled marriage to the fourth degree when it arose from lawful carnal intercourse, and to the second degree when it arose from unlawful intercourse. Theologians taught, and the doctrine was confirmed by many decisions of the Roman Congregations, that although the diriment impediment of affinity did not affect unbaptized persons, yet carnal intercourse between unbaptized persons produced a natural bond which became the diriment impediment of affinity after the reception of baptism. Moreover, if a married man committed adultery with a near relative of his wife, he thereby contracted affinity with his wife which deprived him of his marital rights until dispensed by lawful authority. All these difficulties are now swept away and ecclesiastical law on the subject of affinity has been brought into greater harmony with the civil law of the country.

These great and beneficial changes in the law of the Church have their counterpart in the past history of this diriment impediment of marriage.

Natural feeling and the necessary intimacy between members of the same family exclude the idea of marriage among those who are closely related by blood. Experience, too, proves that the physical effects of such marriages are evil. By marriage one spouse becomes a member of the family of the other spouse. The reasons which militate against the marriage of those who are closely related by blood, militate also to some extent against the marriage of those who are related to each other by affinity. However, according to the received opinion, the natural bond which exists between those who are related by affinity is not sufficient to constitute a diriment impediment of marriage by the natural law. In other words the diriment impediment of affinity, even in the direct line and much more in the collateral line, is of positive, not of natural law. The positive legislation of most civilized peoples has recognized the impediment. The Mosaic law* enumerated the persons related to each other by affinity who were forbidden to marry. In much the same way the old Roman law for-

* Leviticus xviii. 8 ff.

bade marriage between certain persons closely related by affinity. During the first centuries of the Christian era the Church seems to have adopted the Mosaic and Roman laws on this subject. Very soon, however, she began to show that she was conscious of having legislative authority on such matters, and she began to make laws of her own. The Mosaic law allowed a man to marry a deceased wife's sister, and if a woman's husband died leaving her childless it obliged the husband's brother to marry her. At the beginning of the fourth century the Church forbade such marriages as these. The 61st Canon of the Council of Elvira in Spain (A.D. 305 or 306) enacted that: " If a man after the death of his wife marries her sister, let him abstain from communion for five years." The second Canon of the Council of Neocæsarea (A.D. 314-325) decreed that: "If a woman has married two brothers she shall be excommunicated till death." When St. Basil the Great was Archbishop of Cæsarea he forbade a man to marry his deceased wife's sister. Diodorus of Tarsus reprimanded him for this, but St. Basil defended himself by saying that such marriages had always been prohibited at Cæsarea.*

In the old law of pagan Rome lawful marriage was regarded as the chief ground of affinity in so far as affinity was an impediment of marriage. Yet even in Roman law affinity arose from certain other unions besides lawful marriage. As Wernz says:

"Affinitas jure Romano potissimum constituit impedimentum matrimonii quatenus

* Hefele, Histoire des Conciles, I., 161.

orta est ex nuptiis legitimis rite contractis, etsi non consummatis; veruntamen etiamsi ex contuberniis servorum originem duxit, matrimonii celebrationi obstabat. Nam L. 14, § 3, de rit. nupt. XXIII., 2 statuitur: ' Item, tamen, quod in servilibus cognationibus constitutum est etiam in servilibus affinitatibus servandum est, veluti ut eam quae in contubernio patris fuerit, quasi novercam, non possim ducere.' Imo, vel de ipsis concubinis (i.e., ex significatione hujus vocis in jure Romano) L. 4, de nupt. V. 4, decernitur: ' Liberi concubinas parentum suorum uxores ducere non possunt, quia minus religiosam et probabilem rem facere videntur. Qui si contra hoc fecerint crimen stupri committunt."'*

Still, in spite of these exceptional cases, affinity in general was regarded as arising from lawful marriage alone according to Roman law. During the first centuries of the Christian era there are no indications that Christians held any other view on the subject. The first sign of a change of opinion is met with in a passage from St. Augustine Contra Faustum. It was embedded subsequently in the Decretum Gratiani and quoted as c. 15, C. XXXV., q. 2, 3. It reads as follows:

" Si vir et uxor non jam duo sed una caro sunt, non aliter est nurus deputanda quam filia."

Henceforth, not marriage, but carnal intercourse, will begin to be regarded as the root of

* Wernz, Jus decretalium, IV., 654, nota (22).

affinity by ecclesiastical lawyers and writers. Over and over again the words are repeated in ecclesiastical laws. One of the chief authorities for the ecclesiastical rule of affinity was an apocryphal letter attributed to Pope Gregory and given by Gratian as c. 1, C. XXXV., q. 10.

"Si una caro fiunt [the Pope is made to say] quomodo potest aliquis eorum propinquus pertinere uni, nisi pertineat alteri? Hoc minime posse fieri credendum est. [Then a conclusion is drawn from the doctrine.] Porro uno defuncto in superstiti affinitas non deletur, nec alia copula conjugalis affinitatem prioris copulae solvere potest."

Another famous text attributed by Gratian to Pope Gregory, but which in the judgment of Mansi belongs to Pope Zachary (A.D. 741-752) begins thus:

"Porro de affinitate, quam dicitis parentelam esse, quae ad virum ex parte uxoris, seu quae ad uxorem ex parte viri pertinet, manifestissima ratio est quia si secundum divinam sententiam ego et uxor mea sumus una caro profecto mihi et illi mea suaque parentela propinquitas una efficitur."*

Canon 13 of the Council of Compiègne, held in the year 757, clearly indicates that then affinity arising from illicit intercourse constituted a diriment impediment of marriage in the law of the Church. A decree attributed by Gratian to Pope Gregory, but which probably belongs to the same

* c. 3, C. XXXV., q. 5, Decreti Gratiani.

period as the above-quoted Council of Compiègne, makes no distinction between affinity arising from lawful marriage and from fornication. The terms are very sweeping and drastic.

"Nec eam quam aliquis ex propria consanguinitate conjugem habuit, vel aliqua illicita pollutione maculavit in conjugium ducere ulli profecto licet Christianorum aut licebit, quia incestuosus est talis coitus et abominabilis Deo et cunctis hominibus (c. 10, C. XXXV., q. 2, 3)." According to chapters 13 and 14, C. XXXV., q. 2, 3, a man committed incest equally by sinning with his wife's relations by blood and with his own. Some modern writers have attributed the law of affinity arising from fornication to the false Decretals. What has been said shows that the law of the Church on the point was well established long before the middle of the ninth century, when the false Decretals made their appearance.

Sanchez* defines affinity as, " Propinquitas personarum ex carnali copula proveniens, omni carens parentela." He says that the definition was accepted by St. Thomas and other theologians and by professors of both canon and civil law. It is true that subsequently he admits that Tancred and Vincent maintained that affinity arose only from lawful marriage and quoted the Roman law in proof of their opinion. But the Archdeacon, says Sanchez, deservedly reprehends these doctors, and all other doctors admit that affinity arises from fornication as well

* De matrimonio, lib. VII., disp. 64.

as from conjugal intercourse. The way in which Sanchez speaks of the opinion which he rejects seems to show that when he wrote the tradition that there could be any opinion on the question different from that which was commonly received had been almost lost.

Starting from the principle of duo in carne una, a second and even third kind of affinity was obtained. Benedict XIV. illustrates this threefold affinity by the following example. Titius, the brother of Caius, marries Bertha, and the marriage is consummated. Bertha contracts the first kind of affinity with Caius. Titius dies and Bertha marries Sempronius. Sempronius contracts the second kind of affinity with Caius and all the relations of Titius. Bertha dies and Sempronius marries Naevia. Naevia contracts the third kind of affinity with Caius and the relatives of Titius. The second and the third kind of affinity were abolished by the fourth Council of the Lateran in A.D. 1215, and since that time it has been admitted as an axiom that, Affinitas non parit affinitatem.

Owing especially to the influence of the Germanic tribes during the sixth and seventh centuries the impediment of consanguinity was greatly extended. The impediment of affinity soon followed that of consanguinity, and in the middle of the twelfth century, when Gratian wrote his Decretum, both impediments extended to the seventh degree in the collateral line.

The fourth Council of the Lateran (A.D. 1215) restricted both consanguinity and affinity to the fourth degree as diriment impediments of marriage. The Council of Trent restricted the impediment of affinity to the second degree when it had arisen from illicit intercourse. As we have seen, in the new Code of Canon Law, affinity arising from illicit intercourse is abolished; and affinity arising from marriage is restricted to the first and the second degree.

A practical case will help us to realize some of the important consequences of the changes in the law of affinity which have been made by the new Code.

Titius committed fornication with Bertha in the year 1917. Subsequently he married Titia, the sister of Bertha. He now comes to confession for the first time since he committed sin with Bertha. How is he to be reconciled?

If Titius married Titia after the new Code came into force on May 19, 1918, and he is sorry for his past sins, he may be absolved without more ado. He had contracted affinity with Titia on account of his sin with Bertha, but when he married, that affinity was no longer a diriment impediment of marriage, and his marriage was lawful and valid.

If, however, the marriage took place before May 19, 1918, it was invalid, because affinity in the first degree in the collateral line arising from fornication was then a diriment impediment of marriage. It is no longer a diriment impediment now, and so the marriage may be convalidated without any dispensation. We presume that the impediment and the invalidity of the marriage are occult. In such a case the marriage may be convalidated by the private renewal of consent on the part of Titius, since we presume that Titia still maintains her consent to the marriage (Canon 1135, § 3).