Article I: On Impedient Impediments

— I. A simple vow. The Code numbers five vows: of virginity, of perfect chastity, of not marrying, of receiving sacred orders, of embracing the religious state.

The first three, strictly accepted, differ formally, in such a way that a vow of virginity, after the first completed use of the venereal faculty, and a vow of not marrying, after marriage has been celebrated, have become impossible of execution; but often those making vows use one name to designate a vow of perfect chastity: their intention is to be explored. Nor do vows of virginity or of perfect chastity of themselves, or with the positive disposition of c. 1058 omitted, exclude a marriage to which, by mutual consent, there is added a purpose of continence. The two latter vows are not opposed to marriage except mediately, insofar as the Church requires celibacy from the ordained and from religious (cf. Wernz, IV, 564).

At the same time by the Code we are warned that by no simple vow, without a special prescription of the Holy See, is marriage invalidated.

— Adoption,* according to the provisions of civil law prohibiting nuptials, because of legal kinship arising from adoption (c. 1059).

And for the very extension of the impediment the Church here has accommodated her law to civil law.

Since civil law cannot establish impediments for the marriages of the baptized, the faculty given to the civil power of erecting adoption into a prohibiting or even diriment impediment (c. 1080) seems to have to be explained by the tacit concession of the Church. That is, the impediment indeed formally has force only by force of canon law. But the Church seems tacitly to permit the civil power to keep citizens from nuptials because of this cause. However, she does not formally look to civil marriage as such. The matter could nevertheless be explained in this other way. Civil law can establish even diriment impediments for its non-baptized subjects. Therefore what civil law efficaciously defines concerning adoption for the non-baptized, ecclesiastical law transfers to the baptized.

Before the Code, the matter was directly decided by ecclesiastical law: where full adoption was admitted, it created a diriment impediment; where only imperfect adoption existed, it was not an impediment.

Moreover, by Italian law (art. 60), Spanish law, and Brazilian law, adoption is constituted a diriment impediment. By the Code of France and Belgium (art. 348), according to the more common opinion, it is established only as prohibiting. In the German Code, art. 1311, it is a prohibiting impediment. But by Lusitanian law and that of many States of Latin America it does not even seem to be an impedient impediment (thus Ferreres, II, 1048). The same must be said of the law of Holland, England, and the United States of America (excepting Puerto Rico and the Philippine Islands).

Moreover Italian law has it thus: "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same person; between the adopted person and children later born to the adopter; between the adopted person and the spouse of the adopter, and between the adopter and the spouse of the adopted." The Code of France and Belgium has the same.

Concerning this impediment Cappello, S.J., discusses broadly and learnedly in the journal Ius Pontificium, II, 93 ss., where on p. 95 ss. he more fully sets forth the varying civil law. Yet we warn that not all things are equally established.

— III. Mixed nuptials, that is, between a Catholic party and a party ascribed to a heretical or schismatic sect. The prohibition is urged most severely by ecclesiastical law, and, "if there is danger of perversion of the Catholic spouse and of the offspring, the marriage is forbidden even by divine law itself" (c. 1060). Wherefore:

1. these conditions of dispensation are set down: just and grave causes; a caution, that is, a formal promise, regularly written, of the non-Catholic spouse concerning the removal of the danger of perversion from the Catholic spouse, and of both spouses concerning all offspring to be baptized and educated only in a Catholic manner; moral certitude concerning the fulfillment of the cautions (c. 1061);

2. the obligation of the Catholic spouse of prudently caring for the conversion of the other party is recalled (c. 1062). The obligation is from charity. Before the Code this care had to be formally promised;

3. it is wholly prohibited that before or after the marriage a non-Catholic minister, as one devoted to sacred things (he is permitted to be approached, if civil law commands this, as a civil official for completing the civil act), be approached for furnishing or renewing consent. If the pastor knows certainly that the spouses will violate this law, or have already violated it, he is not to assist at their marriage, unless from most grave causes, scandal having been removed, and the Ordinary having first been consulted (c. 1063);

4. it is enjoined upon Ordinaries and other pastors of souls a) that they deter the faithful from mixed nuptials as much as they can; b) that with all zeal they take care that they are not contracted against the laws of God and of the Church; c) after the nuptials have been celebrated, whether in their own or in another territory, that they diligently watch that the spouses stand by their promises; d) that, when assisting at the marriage, they indeed make the interrogations by which they require and receive the consent of the contracting parties, but abstain from every sacred rite, unless the Ordinary has permitted one for avoiding graver evils, with the celebration of Mass always excluded (cc. 1064; 1095, §1, 3; 1102).

For the most part these marriages are so harmful that dispensation and assistance can simply be denied, if in this way several other mixed nuptials are impeded. Yet per accidens it can happen that in certain regions, through these nuptials cautiously made, conversions are prepared and the Gospel is propagated. Then there will be place for epikeia.

By decree of May 21-23, 1912, given on June 21 of the same year, the Holy Office had commanded that, if at any time a pastor had to assist at the mixed nuptials of those who obstinately refuse the cautions, he should abstain from interrogations and furnish merely passive assistance (Per., VI, p. 260). But on March 13, 1921, IV, to 13, it was responded that the assistance of the pastor cannot even be permitted "if in this way celebration before a non-Catholic minister or civil magistrate can be impeded." But wherever, because of peculiar circumstances and graver reasons, his presence is tolerated, it will now be safer, after the Code, that he make the interrogations which of themselves are required for validity.

— The Code, c. 1065, indeed does not extend the impediment of mixed nuptials to nuptials with notorious apostates who have given their name to no non-Catholic sect, nor with members of a condemned society. Yet it wills that the faithful be kept away from nuptials of this kind, nor does it permit assistance by the pastor except after the Ordinary has been consulted, who can grant this, provided a grave cause is urgent and he prudently judges that provision has been made for the Catholic education of all the offspring and for the removal of the danger of perversion of the faithful spouse.

— The matter is handled somewhat more mildly with a public sinner or a man who is bound by censure. If he first approaches sacramental confession, he is no longer a public sinner, and he is admitted to nuptials as the rest of the faithful. You may say the same of one censured who is reconciled with the Church. But if they have refused this, the pastor is not to assist at their marriage, "unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary" (c. 1066).

Therefore the obligation of consulting the Ordinary is urged less absolutely.

— The impediment of closed time today has been removed by c. 1108, §1; nor does a more severe custom seem to be among those which cannot prudently be removed.

But the prohibition of the Church, that is, of the Holy See or of the local Ordinary, concerning which c. 1039 speaks, is not an impediment properly such, because it is not stably constituted, nor does it demand dispensation, but, when the cause ceases, it ceases of itself. Therefore, for all actually staying in their own territory and for their own subjects even outside the boundaries of their territory, local Ordinaries can forbid marriages in a particular case, but only for a time, for a just cause and while that cause endures.

The cause usually will be a suspicion about an impediment which has arisen. Yet it could also be manifest damage, especially of public reason, arising from the marriage, as if the bishop adds his prohibition to the most just opposition of the parents; or if, because of the neglected civil form, damages to the Church herself are to be feared.

But only the Holy See can add an invalidating clause to the prohibition.