Chapter XI. Doubtful Impediments

WHEN there is 1 doubt as to the existence of a diriment impediment which annuls marriage by natural or divine law, marriage must not be contracted, for as there would always be a doubt as to whether it was valid, the parties would be exposed to the continual danger of sinning against the natural law. Theologians make an exception to this general rule in favour of those who labour under probable impotence, for these may marry on account of the strong presumption that all men are potent unless the contrary is certain, and because it would be an intolerable hardship to prohibit a person from marrying because of such a doubt (Can. 1068, sec. 2). In the case of a doubtful impediment of positive law, we must distinguish between a doubt of law and a doubt of fact. When there is a doubt whether the positive law extends to the particular case, as whether spiritual relationship arises between the sponsors in a private Baptism and the child, the impediment practically does not exist, as the law is of strict interpretation and the Church dispenses as far as is necessary in such a case of doubt, When the doubt is about a fact, as whether the parties are related within the prohibited degrees of kindred, the Church does not supply if the impediment really exists, and a dispensation should be asked for to make sure. The Bishop has power to dispense in such cases of doubt (Can. 15). When marriage is contracted with a supposed impediment which in reality does not exist, the marriage will of course be null and void if the parties thought that it was altogether impossible, and merely intended to go through the external form. On the other hand, it would seem to be valid if they intended to marry as far as they could, though they were afraid they could not do so. And so if one whose consort has been absent for a long time and who is not known to be dead, as in fact he is, marries again, giving her consent to the marriage as far as possible, it would seem that the marriage is valid though unlawful.

When a marriage has been contracted and a doubt subsequently arises as to the validity on account of the probable 2300". existence of a diriment impediment, inquiry must be made with a view to settling the doubt, and in the meanwhile the party in doubt must abstain from asking for the marriage debt, though he is not precluded from rendering it to a consort who asks for it in good faith without any suspicion about the validity of the marriage. If the doubt still remains after ordinary diligence has been used in making inquiries, the doubt may be put aside, and the marriage may be presumed to be valid.

The rules of law may be applied to such a case, “ In doubt we must presume the validity of the act,” and ‘“‘ In doubt the condition of him who is in possession is the stronger.” These rules apply with all the greater force inasmuch as marriage is favoured, and the decision must always be given in its favour in case of doubt (Can. 1014).

If it becomes certain that a marriage which has been contracted is invalid by reason of a diriment impediment existing between the parties, and the invalidity is publicly known, the parties must separate. Otherwise there would be danger of sin and public scandal. If the impediment is secret and the parties are in good faith without any knowledge of its existence, they should be left in their ignorance until a dispensation from the impediment has been obtained, The dispensation should be executed in one of the ways to be described in a subsequent chapter.

If the parties know of the existence of the impediment and of the consequent nullity of their marriage, they must separate, at least from bed, until a dispensation can be procured. Whether they can be permitted to live together as brother and sister in the same house depends on whether they can thus avoid all proximate occasion of sin. If they cannot, some excuse to avoid scandal and awaking suspicion must be found for a temporary separation.