Chapter XII. Dispensations from Diriment Impediments

THE Church cannot grant a dispensation from those impediments which belong to the natural and divine law. She cannot, for example, allow a Christian to marry again while a former wife is still alive, nor dispense in a case of certain impotence. Although she can dispense in all impediments which have their origin in ecclesiastical law, yet as a matter of fact she but seldom does so in some of them, such as the priesthood, and affinity in the first degree arising from consummated marriage. The Council of Trent decreed universally that ‘‘ as regards marriages to be contracted, either no dispensation at all shall be granted, or rarely, and then for a cause, and gratuitously.”¹ Still, according to modern discipline it is not uncommon for dispensations to be granted in the more remote degrees of consanguinity and affinity, in spiritual relationship, in occult crime, and in some other impediments,

¹ Sess. xxiv, c. 5, de ref. Matr.

As the diriment impediments of marriage belong to the common law of the Church, per se only the Holy See can lawfully dispense in them.

However, in certain cases, whether by law or by special indult, bishops and others have power to dispense.

(a) A bishop can dispense a doubtful impediment when the doubt is about a fact (Can. 15).

(b) In pressing danger of death, local Ordinaries, to appease conscience, and, if the case admit of it, for the legitimation of offspring, can dispense both in the form to be observed in the celebration of marriage, and in each and all impediments of ecclesiastical law, whether public or occult, even though they are manifold, except the impediments arising from the sacred order of priesthood, and of affinity in the direct line when marriage has been consummated (they can dispense) their own subjects wherever they be, and all who are actually staying in their territory, but scandal must be avoided, and if the dispensation is granted for difference of religion or for a mixed marriage, the usual promises must be given (Can. 1043).

(c) In the same circumstances, and only for cases in which not even the local Ordinary can be approached, both the parish priest has the same power of dispensing, and the priest who assists at marriage contracted in danger of death in accordance with Canon 1098, n. 2, and a confessor, but the latter for the internal forum in the act of sacramental confession only (Can. 1044).

(d) Subject to the clauses laid down at the end of Canon 1043, local Ordinaries can dispense in all the impediments mentioned in that same canon, whenever the impediment is discovered when everything is ready for the marriage, and without probable danger of grave harm the marriage cannot be put off until a dispensation is obtained from the Holy See (Can. 1045).

(e) This same faculty avails also for the convalidation of marriage already contracted, if there is the same danger in delay, and there is no time to have recourse to the Holy See (ibid., sec. 2).

(f) In the same circumstances, the parish priest and other priests mentioned in Canon 1044 have the same faculty, but only for occult cases in which not even the local Ordinary can be approached or not without danger of violating the seal of confession (ibid., sec. 3).

The parish priest or the priest mentioned in Canon 1044 should at once notify the local Ordinary of the dispensation granted for the external forum; and enter it in the book of marriages (Can. 1046).

The above special faculties for particular cases are granted by law; sometimes Bishops receive other faculties for granting dispensations by indult from the Holy See. The Code lays down the following rules which govern the exercise of such faculties: In marriages already contracted or to be contracted, he who has a general indult for dispensing in a certain impediment can dispense in it even though it is manifold, unless the indult expressly prescribes otherwise (Can. 1049, sec. 1).

One who has a general indult for dispensing in several impediments of different kinds, whether diriment or prohibitory, can dispense in those same impediments even if they are public, when they occur in one and the same case (ibid., sec. 2).

If ever together with a public impediment or impediments, in which one can dispense by indult, there is another impediment in which he cannot dispense, the Holy See ought to be approached for all of them; but he can use his faculties if the impediment or impediments in which he can dispense are discovered after a dispensation has been asked for from the Holy See (Can. 1050).

By a dispensation in a diriment impediment granted either by ordinary authority or by authority delegated by general indult, but not by rescript in particular cases, legitimation of offspring is thereby also granted if any was born or conceived of those who were dispensed, with the exception of adulterous or sacrilegious offspring (Can. 1051).

A dispensation from an impediment of consanguinity or affinity granted in any degree of the impediment is valid notwithstanding a mistake about the degree in the petition or in the grant, provided that the true degree is lower, or although another impediment of the same kind in an equal or lower degree was not mentioned (Can. 1052).

A dispensation granted from a minor impediment is annulled by no defect of obreption or subreption, although the only motive cause mentioned in the petition was false (Can. 1054).

The impediments of minor degree are:

(a) Consanguinity in the third degree of the collateral line.

(b) Affinity in the second degree of the collateral line.

(c) Public propriety in the second degree, (d) Spiritual relationship.

(e) Crime arising from adultery with a promise of marriage, or with attempted marriage even though it be only civil. All the other impediments are of greater degree (Can. 1042).

The Pope grants matrimonial dispensations through various Roman Congregations. The Congregation of the Holy Office grants dispensations in mixed marriages and in the impediment of difference of religion. The Congregation on the Discipline of the Sacraments grants dispensations from public impediments and for the external forum. The Sacred Penitentiary grants dispensations only for the internal forum. If a case occur in which there is both a public and an occult impediment, the petition for dispensation from the public impediment should be sent to the Sacred Congregation on the Discipline of the Sacraments in the ordinary way, and another petition without mentioning the real names of the parties should be sent to the Sacred Penitentiary, mentioning the public impediment in the case as well as the occult.

Dispensations are granted gratuitously by the Sacred Penitentiary, but for dispensations from public impediments granted by the Roman Congregations besides the expenses of agency a small tax is imposed on those who can afford to pay. This is lowered or altogether remitted in favour of the poor.

Matrimonial dispensations cannot be granted lawfully even by the Pope without good cause. A cause is motive or final when it is ordinarily deemed sufficient for granting a dispensation; when it only induces the superior to grant a dispensation more readily, it is said to be impulsive. When the petition for a dispensation omits to mention what should be mentioned, it has the defect of subreption; when it alleges what is false, there is obreption. When subreption or obreption occurs in the motive cause, the dispensation from the impediments of greater degree, not from those of minor degree, is invalid at least if the cause alleged was the sole cause, and even if it was not the validity of the dispensation is doubtful. Subreption or obreption in an impulsive cause does not affect the validity of the dispensation. In doubt as to whether a cause falsely alleged for a dispensation was motive or impulsive, the presumption will be in favour of the validity of the dispensation, In dubio standum est pro valore actus. If the motive for granting a dispensation from an impediment of greater degree ceases before the dispensation is executed, the dispensation will lapse; if, however, the motive cause ceases to exist after the dispensation has been executed, though before the marriage has been contracted, the impediment has been removed, and the parties may marry.

Propaganda, May 9, 1877, issued an instruction on matrimonial dispensations, which sets forth and explains the ordinary canonical causes which are accepted as sufficient for granting a dispensation. The same causes, however, are not sufficient for a dispensation from all impediments, and the party interested should put down in his petition all the grounds that he can find for granting the favour he requests. We cannot do better than give here the chief portion of this important document in Fr. Guy’s translation: (1) Smallness of the place, either absolute or relative (as regards the female petitioner alone), seeing that in the place of her birth or even domicile a woman’s relationship is so widely spread that she is unable to meet with anyone to be married to of an equal position with her own, save a relative by blood or by marriage, without leaving her country, which would be a hardship to her.

“‘(2) The advancing age of the woman. If, for instance, she is over twenty-four and has not hitherto met with one of her own position to whom she might be married. But this reason does not hold good in the case of a widow wishing to marry again. U.

“ (3) Deficiency or absence of dowry. If a woman has not actually a dowry large enough to enable her to marry another of her own position, unconnected by blood or marriage, in her own place of abode. And this reason becomes all the more weighty when the woman has no dowry at all and a relation by blood or by marriage is willing to marry her, or even to make a suitable settlement upon her.

(4) Contentions about inheritance that have already arisen or serious or imminent danger of the same. If a woman has on hand an important suit in reference to her inheriting wealth of great amount, and there is no one else to undertake a contention of this kind and carry it on at his own expense save the person who is desirous of marrying her, a dispensation is usually granted, for it is of benefit to the community at large that an end should be put to the contention. A reason of this nature, however, suffices only in cases of remote grades of relationship.

‘““(5) Poverty on the part of a widow with a numerous family which some man promises to support. But at times a widow obtains the benefit of a dispensation owing to her youth and the danger of incontinence. ““

(6) The blessing of peace; and under this head come not only treaties between realms and princes, but the cessation of serious enmities, disturbances, and ill-will between citizens.

(7) Too great, suspicious, or dangerous familiarity, as well as having, almost unavoidably, to dwell together under the same roof, (8) Previous connection with a relation by blood or by marriage, or with any other party under an impediment, and pregnancy, with consequent legitimization of the offspring, in order to provide for the well-being of the offspring and the good name of the mother, who would otherwise remain unmarried, “(g) Disgrace coming upon the woman arising from a suspicion that through over-familiarity with a relative or connection she had been seduced by him, although the suspicion should be false, in a case when unless she marries, a woman seriously defamed would either remain unmarried, or must marry beneath her, or serious loss would ensue. “‘

(10) Revalidating a marriage which has been contracted in good faith, and publicly in the way prescribed by the Council of Trent, because its dissolution could hardly be brought about without grave public scandal and heavy loss, especially on the woman’s part. But if the parties have got married in bad faith, they by no means deserve the favour of a dispensation as the Council of ‘Trent decides.

““(11) Danger of a mixed marriage, or of its being celebrated before a non-Catholic minister. When there is danger of those wishful of being married, though connected in one of the closer degrees, going before a non-Catholic minister for the marriage in defiance of the authority of the Church, by reason of the refusal of a dispensation, there are just grounds for dispensing; for there is imminent danger not only of a most serious scandal to the faithful, but also of apostasy and loss of faith on the part of those so doing and disregarding the impediment to matrimony, especially in countries where heresy flourishes unchecked. The same must be said in the case of a Catholic woman who ventures upon marriage with a non-Catholic man. “

(12) Danger of incestuous concubinage.

“(13) Danger of a civil marriage. From what has been said, it follows that probable danger of those who are petitioning for the dispensation having only a civil marriage, as it is called, if they cannot get the dispensation, is a lawful reason for dispensing. “ (14) The removal of grave scandal.

“(15) Putting a stop to open concubinage.

(16) Merit, that is in the case of one who has by resisting the enemies of the Catholic faith, or by generosity toward the Church, or by his learning, virtue, or some other means, deserved well of religion. ** Such are the more common and strong grounds which are usually brought forward when matrimonial dispensations are to be petitioned for; and theologians and canonists treat of them exhaustively. “ But this instruction now turns to those points which, in addition to the grounds for obtaining the dispensation, must, whether by law, custom, or the practice of the curia, be expressed in the petition, or the dispensation becomes null if the truth be kept back or what is untrue is advanced even in ignorance, ‘These are: (1) The name and surname of the petitioners must both be written down distinctly and clearly, without any abbreviation.

“(2) The diocese of birth or of actual domicile. When petitioners have a domicile out of the diocese of their birth they can ask, if they please, that the dispensation should be sent to the Ordinary of the diocese in which they are actually residing.

“(3) The species (in its most determinate form) of the impediment, whether it is consanguinity or affinity, public morality (honestas); in the case of an impediment by reason of crime, whether it arose from murder of the party’s spouse with the promise of marriage, or from such murder with adultery, or from adultery alone with the promise of marriage.

““(4) The degree of consanguinity or affinity or morality (honestas) arising from a marriage ceremony, and whether it is a simple or mixed degree, the more remote as well as the less, together with the line, and whether it is direct or collateral; likewise, whether the petitioners are related by a double tie of consanguinity, both on the father’s and mother’s side.

““(5) The number of impediments; for instance, is the consanguinity or affinity twofold or manifold; or is there affinity as well as relationship; or any other kind of impediment, diriment or prohibitory? “*

(6) Various circumstances, such as whether the marriage is to be or has been contracted; if contracted, it must be stated whether this was done in good faith at least on one side, or with a knowledge of the impediment; likewise, whether it was after proclamation of banns and in accordance with the prescriptions of the Council of ‘Trent, or whether with the view of more easily obtaining a dispensation; finally, whether it has been consummated, if in bad faith, at least on one side, or with knowledge of the impediment.”’!

The instruction required that mention be made of incest, if this crime had been committed between the parties who asked for the dispensation, but this obligation was abolished by a decree of the Holy Office, June 25, 1885. If a mistake occurs in the names of the petitioners, or of the diocese or parish, it does not invalidate the dispensation, provided that in the judgement of the Ordinary there is no doubt about the truth of the matter (Can. 47).

If a lower degree is put for a higher, the mistake invalidates the dispensation as a rule, otherwise if a higher or equal degree is put for a lower (Can. 1052).

As a rule the Holy See grants dispensations in forma commissoria. When the impediment is occult the commission to dispense the party labouring under the impediment is issued to the confessor. It will therefore be the confessor’s duty to verify the allegations as far as possible and faithfully to observe all the conditions laid down in the papal rescript. The observance of the conditions expressed by such terms as, provided that, if, or the ablative absolute, is necessary for the validity of the dispensation. Besides the conditions, certain things are also prescribed, such as the destruction of the rescript after it has been executed; but these matters do not affect the validity of the dispensation. One of the usual conditions is previous sacramental confession, which requires the hearing of the confession of the party, but not necessarily his absolution. If this clause is not in the rescript, it may be executed outside the confessional. No special form is prescribed for granting the dispensation, which may be done by word of mouth.

Notice of the dispensation if it was given for the internal but non-sacramental forum should be entered in the secret book (Can. 1047).

When the impediment is public the commission is issued to the Ordinary of the parties or to the Ordinary of the place where they live. After the Ordinary has received the rescript he may delegate the verification of the clauses to the parish priest of the parties, and after this has been done he may grant the dispensation according to the terms of the rescript, and on being signed by the Ordinary the dispensation will at once take its effect. The document or a copy of it should be sent to the parish priest, who will inform the parties that the dispensation has been duly granted (cf. Can. 1055, 1046, 1047, 1057).

When the bishop is able to grant the necessary dispensation, he ordinarily does so m forma gratiosa. 'This signifies that on receipt of the petition and having satisfied himself of the truth of the allegations contained in it, he grants the dispensation forthwith by signing a document drawn up in due form, and sends it to the parish priest, who will inform the parties of the terms on which it has been granted.