Article II: On Diriment Impediments

— Summary enumeration. A diriment impediment can arise either from the natural or legal inability of the parties, or from a vice of consent, or from defect of solemn form. Although an intrinsic vice of consent, such as error concerning the person, or defect of solemnity, is not strictly to be called an impediment, and they are treated in separate chapters in the Code. In Chapter IV of the Code it is a question only of those impediments which arise from the inability of persons.

With some changes of great moment having been made concerning certain others, the impediments of affinity from illicit intercourse, of public honesty from sponsals, and of spiritual kinship from confirmation have been suppressed.

But there remain defect of age (c. 1067); antecedent and perpetual impotence (c. 1068); ligamen (c. 1069); disparity of cult (c. 1070); sacred order (c. 1072); solemn vow or privileged simple vow (c. 1073); abduction (c. 1074); crime (c. 1075); consanguinity (c. 1076); affinity (c. 1077); public honesty (c. 1078); spiritual kinship (c. 1079) and legal kinship (c. 1080).

— I. Whereas by the old law the age of fourteen years in the man and twelve years in the woman, as in Roman law, was only required, now a man before the completed sixteenth year and a woman before the fourteenth are unable to contract marriage (c. 1067).

Before the Code, malice itself was said to supply age: that is, those were permitted to be joined in marriage before the canonical age who were capable in body, at the same time were sufficiently conscious of sexual matters, and sufficiently developed in mind that they could prudently be joined in marriage. Today this exception has been removed. And since in foreign missions age is frequently unknown, and the necessity of hastening marriage occurs, provision is made for the Ordinaries of those places through indults of the S. C. P. F. Yet the permission is not contained in the general formulae.

This impediment is of ecclesiastical law insofar as it requires more than ability to consent (in sane persons). As ecclesiastical, it does not affect infidels who contract among themselves, nor an infidel contracting with a baptized party who has completed the legitimate age. But an infidel can be touched by his own civil law, often more severe.

The Code c. 1067, §2, opportunely added this warning: "Although a marriage contracted after the aforesaid age is valid, nevertheless pastors of souls should take care to turn young persons away from it before the age at which, according to the received customs of the region, marriage is usually entered."

According to physicians themselves, a young man who has not passed the twenty-third year of age, and a girl who has not passed the twentieth year of age, in our European regions, is not fully mature of himself for marriage. Nor is an end always happily imposed on concubinage itself by marriage, as if inconstancy and hence civil divorces are too greatly to be feared.

— II. Antecedent and perpetual impotence. The Code adds that the impediment is diriment by the law of nature, both in the woman and in the man, whether the impotence is known to the other party or not, so that it can be removed by no consent of the parties, whether it is absolute or relative. Absolute impotence is said to be that which renders one impotent with respect to all persons of the other sex; relative, that which renders one impotent with respect to one or a few persons. At the same time it declares that the marriage of one who is doubtfully impotent is not to be impeded, whether the doubt is of law, that is, doctrinal concerning the very ratio or essence of impotence, or of fact, that is, of application. Yet we require a serious doubt by which moral certitude is excluded (Wernz, IV, 2, note 35), and we have narrowed the exception to absolute impotence. He who probably doubts concerning his relative potency with other persons, if he desires to be joined in marriage, can and must contract a certain marriage¹. Finally, as c. 1068, §3 warns, sterility neither invalidates nor impedes marriage.

What impotence excludes marriage, cf. T. IV, n. 40-42.

Since marriage is indissoluble, it is clear that an impediment can be constituted by antecedent impotence alone. But temporary impotence stands in the way neither of any end of marriage nor of its validity. Does it prohibit the use of marriage? (cf. t. IV, n. 54).

¹ Yet authors, except De Smet, n. 471, are not accustomed to limit the exception thus. But the reason which they propose falls only upon absolute impotence. Cf., for example, Wernz, IV, 2, p. 148, note 35, who admits that very grave authors such as Sanchez and Schmalzgrueber required that a positive doubt concerning potency be set aside before marriage.

— III. Ligamen, or the bond of a prior valid marriage, even non-consummated. As long as the preceding marriage subsists, another is attempted in vain. But as long as it is not established certainly, by moral certitude, and legitimately, that is, in that way which the law wills, concerning the dissolution or nullity of the prior marriage, another is illicitly attempted or contracted. The dissolution of the prior marriage, especially the death of the spouse, must be proved by the best means which are at hand. Yet no means of proof is excluded, so that recourse can be had even to various indications and presumptions.

Where an authentic document of death is had, nothing of itself compels the pastor to consult the Ordinary (Gasp., I, 723). In more difficult cases of less perfect proof, the Ordinary must recur to the Holy See. The mode of proof is governed chiefly by the Instruction of the Holy Office, 1868. If, after another marriage has been celebrated, even legitimately, the prior spouse appears, conjugal life must be restored with this one.

Concerning the privilege of faith, which is excepted here because it permits other nuptials while the former ones have not been dissolved, discussion will be made below.

That a long absence of the spouse for several years, and a fruitless, although most diligent, inquiry do not suffice for other nuptials to be permitted, but that it is necessary that positive judgments bring moral certitude, had already been defined by Clement III in c. 19, De sponsalibus et matr. (IV, 1). But the praised Instruction of the Holy Office wills that first an authentic document of death be diligently sought; this failing, that at least two approved and immediate witnesses be interrogated; nevertheless the testimony of one witness is not absolutely rejected, provided at least this is established concerning him, that nothing is found in his testimony which is not congruent and probable; even things said from the mouth of another can be admitted; finally, when other means are lacking, proof of death from conjectures, presumptions, indications, and any circumstances whatever will have to be pursued. And suitable investigations then to be made, and questions to be asked, are added.

Even an extrajudicial inquiry can suffice, if it brings certitude to the Ordinary; nor is the sworn testimony of the surviving spouse altogether excluded.

Sometimes after general calamities the Holy See itself declares what presumption of death can suffice (cf. examples in Gasp., I, 724).

It can also be asked whether a marriage contracted by him who was persuaded that his spouse was surviving, while nevertheless in reality the spouse was dead, could have been valid objectively. The difficulty is drawn from the part of consent, whether it could be seriously given. Yet the Sacred Congregations admit that this is not repugnant. And it suffices that, as much as depends on his will, he wills to hand over and accept the conjugal right. Moreover he can conceive this will either by prescinding from the invalidating law, or by a certain simplicity of an erring mind, or even by a certain obstinacy. Cf. Gasparri, n. 906, 907 with several, for example De Smet, 470, against several. Besides, the Code itself, c. 1085, pronounces this: "Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent."

— IV. Disparity of cult. 1. "A marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism is null" (c. 1070, §1).

Of itself no baptism makes one a heretic or schismatic; but every baptism destines the baptized person for the true Church. Yet by a broader usage, to which the Code accommodates itself, he is baptized in heresy or schism who, attention being paid to the intention of the one baptizing and of the one seeking baptism, is directed toward a non-Catholic community.

Because one must respond according to those things which are of themselves, baptism must be presumed to have been done in the Catholic Church, unless something else is established. Here there prevails the intention of the adult to be baptized, or, for an infant, the intention of the parents who order baptism and in whose power the child remains for education. A Catholic person baptizing in necessity confers baptism in the Catholic Church. Outside necessity, he would baptize illicitly without hope of Catholic education.

Vlaming, I, 284 bis, warns that today baptism is rejected by many sects; and he indicates Methodists, the Free Church, the Salvation Army; and that it is little cared for by Protestants who are called Moderns, especially by the "Remonstrants."

By this canon we have the first written law concerning an impediment which before rested upon universal custom, obliging everywhere. Insofar as it is diriment, the impediment is of ecclesiastical law, but by divine law itself the faithful person is prohibited from rashly exposing himself to the danger of perversion and the offspring to the danger of non-Catholic education.

General faculties of dispensing are conceded by the Holy See if in the place there are more infidels than Catholics.

But before, the impediment had force for those baptized in whatever way. Today it is restricted to those who have been baptized in the Catholic Church or converted to it from schism or heresy.

Now immune from the impediment are all those who never, either by baptism received in the Catholic Church or by profession of the Catholic faith, belonged to it.

By this wise provision the Church permits very many marriages to be valid which, without her dispensation, heretics contract with non-baptized persons.

But those seem to be affected by the impediment who, born from non-Catholics, were indeed baptized in the Church, but by the fault of parents or tutors, from infancy grew up in heresy or schism or infidelity or without any religion. For the Church dispenses these from the solemn form of marriage, but not from this impediment.

2. Whenever the baptism of either party is doubtful, or the party, at the time of the contracted marriage, was commonly considered as baptized, baptism will be judged valid or conferred, or invalid, according as it matters for the validity of the marriage, which presumption favors. Thus c. 1070, §2.

In this paragraph it can be asked why it is not simply said "if the baptism of either party had been doubtful," but there is added: "if the party at the time of the contracted marriage was commonly considered as baptized." The reason can be this: in doubt concerning conferred baptism, it is required, for the presumption itself, that the party was commonly considered as baptized, so that the words "or his baptism was doubtful" merely look to the case in which baptism certainly conferred was of doubtful validity. Yet there are some who take the words "doubtful baptism" in a more universal signification, and at the same time think that the rule of c. 1070, §2 pertains only to marriages already made.

You should observe that the presumption thus yields to the truth, so that if afterward it is discovered that the person had been baptized who was thought not to have been, or in the contrary hypothesis, a pronouncement concerning the validity of the marriage must be made according to the facts now explored. Before the Code this was controverted. Thus C. Gasparri, I, 687, 688, judged that in these cases a virtual dispensation from the impediment of disparity of cult was had.

3. But in granting the dispensation, the same cautions are to be required for the validity of the dispensation which are demanded in mixed nuptials (c. 1071).

4. Corollaries: a) before the marriage itself, the doubt must be seriously explored, if perhaps certitude may be reached;

b) if one party is Catholic, lest the contract or sacrament be exposed to nullity, the doubt must be removed either by baptism certainly conferred or by a dispensation as a precaution from the impediment of disparity of cult. De Smet, n. 588, p. 102, note 3, recalls such a dispensation granted in the diocese of Bruges on February 19, 1920. Only if excessive difficulty stands in the way can it be permitted, for a proportionate cause, that the contracting parties be content with the presumption. Therefore practically it is to be advised that to a dispensation from the prohibiting impediment of mixed religion there be joined, as a precaution, a dispensation from disparity of cult.

Yet for a heretic, unless he wishes to be converted, it is not licit to repeat baptism conditionally (cf. Wernz, IV, 507, note 29). For he is not worthy of baptism.

Before the Code, when dispensation was made in the impediment of disparity of cult, the Catholic party was considered at the same time dispensed from impediments from which the infidel party was exempt, unless it was an impediment of divine law, or of clandestinity, or an impediment from which the Church is not accustomed to dispense. Contrary to what Cappello, III, n. 422, thinks, since that virtual dispensation is not confirmed, it seems tacitly abrogated, especially since the Code c. 1036, §3 does not of itself admit communication of exemption from an impediment; and expressly, in c. 1053, it states the virtual dispensation which it grants.

Who can dispense has been said above. A dispensation from the impediment of mixed religion, unless the clause "and from disparity of cult as a precaution" has been added, today contains no tacit dispensation from disparity of cult, if the non-Catholic party is not baptized (cf. Cappello, III, 423).

c) If neither party has ever belonged to the Catholic Church, no invalidity of marriage from disparity of cult is now to be feared.

— V. Sacred order (c. 1072). From the disposition of the Church, "clerics constituted in sacred orders invalidly attempt marriage." They are affected by this impediment even if they neglected or refused to emit the vow of chastity. Therefore the law of the Church immediately invalidates marriage, and at the same time imposes the vow of perfect chastity, without which they could not, through internal sins of lust, become guilty of sacrilege (cf. what was said in n. 30).

The impediment of contracting marriage after sacred order also exists in the Greek Church, except that the subdiaconate is not there a sacred order; but those who, before ordination in sacred orders, were married, are not prohibited from using marriage.

How the law is tempered in favor of those who were ordained in boyhood or through force and fear, we saw in n. 31 and 699.

— VI. Profession of solemn vows, or also of those simple vows to which the Holy See has specially joined this invalidating force. Concerning this matter cf. n. 136, 137.

By him who has made profession fictitiously, the impediment is not contracted (against Cerato, n. 68, who thinks that the impediment exists in each forum until a sentence of the judge has declared the profession invalid); but in the external forum the fiction will have to be proved so that he can be considered free from the impediment.

— VII. Abduction (c. 1074). This impediment, introduced by the Council of Trent, was defined: the violent abduction of a woman from a safe place into another, for the sake of entering marriage. But by the present law the violent detention of a woman in the place where she is staying or to which she has freely approached is equated with abduction.

But violent abduction or detention supposes the woman unwilling. And although even a youth can be abducted, the impediment is constituted only for the abduction of a woman. Moreover, the abduction of any woman whatever, even of a betrothed woman, as is now certain, gives rise to the impediment. For she who assents to a future marriage does not on that account admit abduction, nor does she will to contract marriage at every time. And if a girl minor in age is abducted, the abduction is presumed violent and clear proofs concerning her consent are required so that marriage can be celebrated.

But the impediment does not cease unless after the woman has recovered her liberty, even if meanwhile she herself, by free persuasion, has consented to marriage; and it affects the marriage of a faithful person with an infidel. For if the woman is faithful, she must be protected from violence by canonical law through an impediment; if the man is Catholic, his guilt is touched by a canonical sanction (cf. Epitome, II, 326).

By abduction of seduction (or to which the woman consents), the impediment is not contracted (Epitome, l. c.; Cappello, III, 462).

— VIII. Crime (c. 1075). A. By a threefold ratio of crime a diriment impediment is constituted.

1. The first ratio is called that of adultery alone. It supposes that, while the same legitimate marriage endures, both parties of whom it is a question have consummated adultery between themselves, and have mutually given each other faith concerning entering marriage, or have attempted marriage itself, even by a civil act only (c. 1075, 1).

Therefore the impediment is not contracted: a) if mutual faith was given before the legitimate marriage of one or both parties with another person, or after its dissolution; or if, after it had been given, it was sincerely and externally retracted before adultery (Creusen, Epitome, II, 327); c) if adultery was committed with another person and not that one with whom mutual faith was given or marriage attempted; d) if faith was not mutually given; e) if adultery was not consummated by true conjugal intercourse: therefore onanistic or sodomitic intercourse does not suffice; f) if adultery was not formal on the part of both, but one or the other was ignorant of the other's marriage: yet affected ignorance is equated with knowledge. But knowledge of the bond suffices, even if the impediment is formally unknown. And since the impediment of bond remains until the death or dissolution of the prior marriage is morally established, some think that the impediment of crime is contracted also by him who attempts marriage with doubt concerning the dissolution of the prior bond; but this seems to have to be denied.

Nor does he have knowledge of the bond who merely doubts whether or not a prior bond had been contracted, unless he affects ignorance.

He who fictitiously gave faith is presumed in the external forum to have given true faith. The promise seems to be required as injurious to marriage, whose other spouse is unwilling.

But for the impediment there suffices the violation of a marriage even merely legitimate, and mutual faith given concerning contracting marriage after the prior marriage has been dissolved. But what if the promise had been otherwise conditioned: for example, if such a fat inheritance should come to you? The matter seems to be estimated from the day on which the condition arrives. For once the condition has been fulfilled, the promise then passes into an absolute one. If the condition has become impossible, the promise is considered never to have been made. And if it was fulfilled only after the marriage had been dissolved, the mutual faith was not, during the bond, perfectly given.

Moreover marriage can be attempted either in ecclesiastical form (with the prior marriage kept silent) or even in merely civil form. Nor does it matter in what order the mutual faith or attempted marriage preceded or followed the adultery. Wherefore a frequent case will be of those who, after obtaining a civil divorce, consummate nuptials celebrated afterward merely civilly.

2. The other ratio of crime is adultery with killing of the spouse. With the various doubts of the prior law removed, it suffices that adultery, consummated and formal on the part of both, concur, during the same legitimate marriage, with spouse-killing which one has perpetrated, even while the other is unaware (cf. c. 1075, 2).

Adultery must be formal in such a way that each knew the marriage which the other dissolved by spouse-killing (Vlaming, Praelectiones iuris matr., I, 320). Whether the efficacious will of spouse-killing preceded or followed adultery, once the effect has followed, it will bring forth the impediment. Approved authors add that it is required that the spouse-killing be perpetrated from the intention of marriage. But that intention is presumed in the external forum.

3. The third ratio of crime is spouse-killing committed by mutual physical or moral cooperation. In order that the impediment be contracted, it is required that both were authors by formal conspiracy, for mutual cooperation is understood as principal, therefore of one commanding, ordering, executing. Mere counsel separated from conspiracy does not suffice. It is also necessary that death from the common deed or conspiracy of each accomplice truly followed, and not from the inexperience of a physician badly treating the inflicted wound.

Before the Code, several required spouse-killing perpetrated with a view to marriage. The Code is silent about that intention. Yet the interpretation of the superior law remains probable. Wherefore spouse-killing from the intention, at least of one or the other and manifested to the other, of entering marriage with the accomplice can also be added to the conditions.

B. This impediment can exist as multiple: a) if the conditions of two or three cases are fulfilled at the same time, as if adultery and attempted marriage concur with spouse-killing: the impediment will be twofold; but threefold if the legitimate spouse was killed while each machinated. Yet we do not think, contrary to what De Smet, n. 666, thinks, that the impediment is duplicated because there is had at the same time (with adultery) a promise of marriage and its attempted celebration. For promise or attempted celebration are conditions of one ratio by which the impediment of the crime of adultery is contracted; b) if injury has been inflicted upon several marriages, as if the adulterers were both married, if both killed the spouse; if Titius successively in two marriages was guilty of crime with the same person. But because not all things are equally certain, it will be safer in seeking dispensation to indicate the multiplicity, with the case described.

C. Since baptism washes all crimes, if the crime was committed by two infidels, it does not affect them after baptism; nor if one party was faithful, provided it is a question of spouse-killing which was committed by the infidel party alone, without the conspiracy of the other.

D. Before the Code, several thought that the impediment was not contracted by those ignorant of it. But now, from c. 16, those ignorant are not immune from this impediment.

We warned above, at the end of n. 760, that virtual dispensation from crime (without spouse-killing) is contained in a dispensation over a ratified and non-consummated marriage, and in the faculty of passing to other nuptials because of the presumed death of a spouse.

— Consanguinity, or the kinship of carnal consanguinity.

1. It is a bond of propinquity induced by generation between persons who descend from the same proximate stock, whether one has been generated from another, or whether they merely come together in one common author. For persons who have been generated one from another, the direct line is constituted, which is called ascending or descending, according as the computation is made from the offspring or descendants to the authors, or from the authors or generators to those generated; or according as the relation of filiation or paternity is formally considered. The oblique, transverse, or collateral line comprises persons who, without a mutual relation of paternity and filiation, have a proximate common stock. A proximate stock, I say, because all of us, at some time finally, have common first parents and pertain to one human family.

2. The distance by which persons are separated makes them less or more proximate. But it is computed by degrees. In the direct line, there are as many degrees as generations, or as persons, the stock (common author) being removed (c. 96, §2).

Thus in every law, both canonical and civil.

In the oblique line, if the persons between whom comparison is made are separated by equal distance from the common stock, that is, "if each tract is equal, there are as many degrees as generations in one tract of the line; if the two tracts are unequal, as many degrees as generations in the longer tract" (c. 96, §3). That is, in canon law, the degree of proximity, even in the collateral line, is estimated by distance from the common author; but by the longer if both persons are unequally distant from the common stock. Why proximity is defined by the greater distance, Ballerini, VI, 661, after Schmalzgrueber, gives this reason: that, since the ratio of propinquity is taken from the stock, one collateral cannot be nearer to another than he is joined to the common stock. Yet sometimes mention of the lesser distance is useful or even necessary. Then persons are said to be consanguineous, for example, in the third degree, touching either the first or the second. Modern civil laws, on the contrary, imitating Roman law, compute the whole distance by which two persons are separated from each other, so that the sum is made of the degrees by which each is distant from the common stock, and there are as many degrees as persons are numbered, one being removed. That is, after the ascent to the common author, descent is made to the other kinsman. In this way it happens that, if the tracts are equal, the civil distance is double the canonical. Thus two brothers are canonically in the first degree, civilly in the second degree; two sons of brothers (first cousins) are canonically in the second degree, civilly consanguineous in the fourth degree. Nor, civilly, is there speech of unequal degrees.

Titius's consanguines in the first three degrees.

In the direct line:

Ascending: father and mother (1 degree); grandfathers and grandmothers (2 deg.); great-grandfathers and great-grandmothers (3 deg.).

Descending: sons and daughters (1 deg.); grandsons and granddaughters (2 deg.); great-grandsons and great-granddaughters (3 deg.).

In the oblique or collateral line:

In the first degree: brothers and sisters (stock: father and mother).

In the second degree: the sons and daughters of brothers and sisters (or his nephews and nieces of the collateral line); his paternal uncles and paternal aunts (brothers and sisters of the father); his maternal uncles and maternal aunts (brothers and sisters of the mother); his paternal cousins (patrueles and amitini or amitinae, that is, sons and daughters of paternal uncles and paternal aunts); his maternal cousins (consobrini and consobrinae amitinae), or the sons and daughters of maternal uncles and maternal aunts (stocks: father, mother, grandfathers, grandmothers).

In the third degree: the grandsons and granddaughters of his brothers and sisters; his greater paternal uncles and paternal aunts; his greater maternal uncles and maternal aunts (that is, brothers and sisters of grandfathers and grandmothers); their sons and daughters, grandsons and granddaughters; finally his sobrini and sobrinae, or great-grandsons and great-granddaughters of his grandfathers and grandmothers (stocks: father, mother, grandfathers, grandmothers, great-grandfathers, great-grandmothers).

Since a paternal uncle, paternal aunt, maternal uncle, and maternal aunt are distant by only one degree from the grandfather or grandmother, from whom Titius is separated by two degrees, Titius is their consanguine in the second degree touching the first; while with the sons of a paternal uncle or maternal uncle his consanguinity is in the second equal degree.

3. Consanguinity can exist as multiple. But after the Code, only that plurality is attended to which is had from a multiplied common stock (c. 1076, §2). Therefore it is multiple when, besides the singular or paired stock and its ascendants, whom all consanguines have, they come together also in another stock within the degrees which exclude marriage.

This happens: a) when persons, consanguineous between themselves, have arisen from two persons consanguineous between themselves who have been joined with two persons consanguineous between themselves. Then each parent communicates his own consanguinity to his descendants. Suppose, which is a frequent case, that two sisters are taken as wives by two brothers. The children of each marriage come together both in the parents of the father and in the parents of the mother; that is, in each line they have a common author or stock; b) when the same person begets offspring from several persons consanguineous among themselves. Suppose someone successively married two or three sisters. The children of the individual marriages come together both in the common father and in the common grandfather who was the father of the three sisters; and therefore their children are consanguineous between themselves in the second equal degree on the part of the grandfather, in the third on the part of the great-grandfather (their children, I say, because brothers and sisters cannot be joined in marriage); c) when a common ascendant has begotten children from a person consanguineous to himself. The descendants will have a common author, besides the ascendant, the common stock of the ascendant and of the person from whom he begot.

But it is no longer multiplied by the fact that one can ascend by diverse ways to the same common author.

This is had when, for example, the daughter of parents consanguineous between themselves wishes to marry a consanguine. For then this daughter, both through her father and through her mother, comes together in one common stock with her spouse. Therefore, if both spouses descend from parents consanguineous between themselves, they will necessarily have a double common stock: to one they will reach by one way, to the other by a double way; if only one or the other of the spouses descends from parents consanguineous between themselves, he ascends only by a double way to one common stock with the spouse.

4. Consanguinity is distinguished as legitimate and illegitimate. Which children are canonically legitimate will be said later.

Besides this, it can be bilateral or full, and unilateral or half. Full consanguinity joins those who communicate both from the father and from the mother. Brothers, sons of the same father and mother, are called full brothers (germani); sons of the same father but not of the same mother are called consanguine brothers; but uterine brothers are those who have only the mother in common. Formerly relatives through the paternal line were called agnates; through the maternal line, however, cognates.

You should observe that a double common author is had by all who are joined by full consanguinity; but, since this is the normal and more frequent condition, father and mother are taken after the manner of one stock, so that the consanguinity is called simple. Therefore do not confuse full consanguinity with multiple.

Multiple consanguinity can be set forth graphically thus.

Iacob                                      Ioseph

Ioannes             betrothed to           Maria

The betrothed parties come together in Iacob and Ioseph in the 3rd degree.

Laban

Iacob marries Rachel and then Leah, sisters.

Iuda                betrothed to           Athalia

The betrothed parties have the common stock Iacob in the 2nd degree,
and Laban in the 3rd.

Franciscus
├─ Antonius
│  └─ Gallus
│     └─ Alexander
└─ Petrus
   └─ Catharina

Antonius also, by spouse Catharina, has Lucia.

Alexander           betrothed to           Lucia

In this example, it is supposed that Antonius, son of Francis, generated Gallus, the father of Alexander, from another woman; but from his spouse Catharina (granddaughter of Francis) he generated Lucia. Alexander is consanguineous with Lucia in the second degree touching the first, by reason of Antonius; and in the third equal degree, by reason of Francis.

The more apt and safer mode of detecting impediments, especially to be used by those to whom these matters are not familiar, is this: that the bridegroom and bride indicate the names to be written down of their parents, grandfather and grandmother, great-grandfather and great-grandmother. If no common one is found, they will not be consanguineous even in the collateral line. For collateral consanguines in the third degree are only those who have as common author at least a great-grandfather or great-grandmother.

5. By today's law, consanguinity invalidates marriage infinitely in the direct line, or between all ascendants and descendants, whether they are legitimate or not. In the collateral line marriage is not invalid except within the first three degrees of consanguinity, legitimate or not.

This impediment in the first degree of the direct line is certainly of natural law, because the relation of equality between spouses cannot be composed with the reverence which a son and daughter owe to their parents. This opposition between conjugal equality and the reverence which is owed to ascendants perseveres in the other degrees. But whether it is so great that by the law of nature itself it invalidates marriage, this seems doubtful to many. Wherefore the impediment, as prohibiting, is of the law of nature; but it is less established that it is of the same law as diriment.

But in the collateral line, natural reason itself dictates that familiarity between brother and sister must be protected from impurity through the prohibition of marriage. Yet this reason could yield to the greater necessity of the general order at the beginning of the human race. Now, therefore, marriage in the first degree is certainly prohibited from natural law. It is less established that it is invalid. In other degrees, the impediment is of merely ecclesiastical law, yet well founded upon reasons of preserving reverence and the custody of purity.

Before the Code, consanguinity invalidated marriage in the collateral line up to the fourth degree inclusive; but it was multiplied also when one arrived at the same common author by several ways, or when there were several titles of the same consanguinity.

6. Since the bond is especially natural, converted and baptized infidels are held by this impediment no less than Catholics with all relatives, baptized or not.

For marriages contracted in infidelity, attention must be paid to divine law, and also to the civil law, written or customary, of the places. Civil law omitted, concerning only marriage in the first degree of the direct line is it established that it is and was perfectly null, and that the pseudo-spouses are to be separated. But those who are found joined in the first degree of the collateral line will be able after conversion, before the marriage is consummated after baptism, to be separated by pontifical authority and rendered capable of another marriage (cf. De Smet, 608).

— X. Affinity, with attention to c. 97, is defined as the bond of propinquity which a valid marriage, whether ratified only or ratified and consummated, induces between either spouse and the consanguines of the other spouse.

And it is computed thus, that in whatever line and degree the consanguines of one spouse are, they become affines of the other spouse (c. 97, §3).

You should observe that the spouses who by their marriage found affinity are not affines between themselves; but their peculiar proximity is designated by the proper name of marriage; nor does one spouse become an affine of the affines of the other spouse: affinity does not generate affinity; nor are the consanguines of one affines of the consanguines of the other spouse: affinity does not go beyond those joined, that is, affinity is terminated at the spouse who is affine. Wherefore the brother of one spouse is not an affine of the sister of the other spouse, so that two brothers can marry two sisters, and similarly a father and son can marry a mother and daughter. Nor is marriage prohibited between the son already born of a widower marrying a widow, and her daughter already conceived before those new nuptials. Nor are the husbands of two sisters affines between themselves.

Before the Code, affinity was founded in carnal commingling, and there was distinguished affinity from licit intercourse, that is, conjugal, which invalidated marriage up to the fourth degree, and affinity from illicit intercourse, whose diriment force was circumscribed by the second degree. Besides this, a spouse, through incestuous intercourse with a consanguineous man or woman of his spouse, contracted supervening affinity, by which he was prohibited from the petition of intercourse. No illicit affinity is now had.

Marriage is not ratified except of the baptized. Therefore canonical affinity does not arise from the marriage of infidels. Thus Cerato, De Smet, n. 613, Aertnijs, n. 764; Cappello, III, 538, although Noldin, 576 extends the impediment to every legitimate marriage. This pleases Vlaming, I, 353, if the impediment proceeds from a marriage consummated in infidelity.

But thus one recedes from the propriety of the words of the canon. But with the baptism of both infidel spouses, their legitimate marriage becomes ratified, and from this moment will found the impediment.

But since a marriage between a baptized and non-baptized party is far more probably not ratified (or a sacrament), it gives rise only to a very uncertain impediment of affinity.

2. Affinity can be simple and multiple. It will be multiple: a) with consanguines who are united with the other spouse by a multiple bond of consanguinity; b) with a spouse who is a consanguine of the prior spouse: as if someone successively married two sisters. For then the cause of affinity is multiplied: affinity is contracted because of two marriages with the same persons.

3. Affinity invalidates marriage infinitely in the direct line; in the oblique line up to the second degree inclusive (c. 1077, §1).

4. Rather than natural, the bond of affinity seems to us to be connatural, insofar as its fittingness, once marriage has been made and especially consummated, is seen so clearly that it is confirmed by that law of nations which occupies a middle place between natural law and positive law. Wherefore in no degree or line is the impediment of natural or divine law. An argument is lacking. The best reasons for the law, which partly are duties of piety, partly the excessive danger of sin to be forestalled from familiar association, do not have that force so as of themselves to exclude a valid marriage.

Yet in the first degree of the direct line the Church does not dispense. Once, on December 2, 1911, it permitted a widower to marry the daughter whom the deceased spouse had begotten before the marriage from fornication.

5. Civil laws conceive affinity in the same way as the Code. But there are laws, for example the present French and the very recent Belgian law of February 11, 1920, which remove the impediment from the point at which, by the death of the spouse (but not by divorce), the marriage from which it arose has been dissolved.

— XI. Public honesty, 1. designates that ratio of public decency which counsels a certain extension of the impediment of affinity. By the present law, c. 1078, the diriment impediment of public honesty arises a) from an invalid marriage, whether consummated or not, and b) from public or notorious concubinage; but it invalidates nuptials in the first and second degree of the direct line between the man and the consanguineous women of the woman, between the woman and the consanguineous men of the man.

a) It arises from every invalid marriage, whatever the cause of nullity may be, even if it is defect of consent.

b) With attention to c. 2197, public is what has already been divulged or, with attention to the circumstances, can and must prudently be judged as easily going to be divulged; notorious adds openly divulged knowledge, so that it can no longer be concealed by any tergiversation (notoriety of fact), or a sentence which has passed into a judged matter, or a confession made in judgment according to the norm of c. 1750 (notoriety of law). Concubinage means the habitual commerce of one with another, with a certain imitation or external appearance of conjugal life.

A frequent case will be of those who, subject to ecclesiastical form, after contracting a civil marriage, live as husband and wife. If that marriage were valid and they were baptized, it would found affinity.

You should observe that the diriment impediment is circumscribed by the direct line alone.

2. Before the Code, the impediment of public honesty arose from every ratified marriage, both valid and invalid, unless defect of consent stood in the way of validity, and from validly contracted sponsals. Arising from sponsals, it invalidated in the first degree of the direct and collateral line; arising from ratified marriage, in the first four degrees of each line. And it remained after sponsals and marriage had been dissolved.

3. This obstacle is neither generated by the law of nature nor founded upon a natural relation. Wherefore it does not affect infidels, not even after baptism, if the marriage or concubinage preceded baptism.

— XII. Spiritual kinship is the bond which arises from baptism and confirmation between certain persons. Today the impediment of marriage arises from baptism alone and invalidates marriage a) between the baptized man or woman and the one baptizing; b) between the baptized man or woman and the godfather or godmother.

It requires valid administration of baptism; and if it has been conditionally repeated, it is not contracted by the godparent unless the same godparent was used in each. Is it then contracted by the one baptizing? We judge that one must respond in the same way.

Then only can it be multiplied, if the same one is baptizing and, through a procurator, is at the same time godparent.

Cf. what was said concerning baptism, where we explained the antecedent law.

— XIII. Legal kinship from adoption, where civil law has established that impediment as diriment (cf. what was said in n. 766).

— I. Impedient impediments. 1. There are five simple vows: of virginity, of perfect chastity, of not marrying, of receiving sacred orders, of embracing the religious state.

2. Adoption, prohibiting nuptials according to the provision of civil law.

3. Mixed nuptials, which are most severely prohibited. Besides, if there is present danger of perversion of the Catholic spouse and of the offspring, the marriage is prohibited by divine law itself. In order that dispensation be made, besides just and grave causes, there is required a caution, that is, a formal promise of the non-Catholic spouse concerning the removal of the danger of perversion from the Catholic party, and of both spouses concerning all offspring to be baptized and educated only in a Catholic manner, and moral certitude concerning the fulfillment of the cautions. If the pastor knows certainly that the spouses have violated or will violate the prohibition of approaching a non-Catholic minister as such, he is not to assist at their marriage except for grave causes, scandal having been removed, and the Ordinary having first been consulted. One must abstain from sacred rite, unless the Ordinary has permitted one for avoiding graver evils, with the celebration of Mass always excluded.

The pastor cannot assist at nuptials with notorious apostates or with members of a condemned sect except after consulting the Ordinary.

If a public sinner or one bound by censure refuses confession, 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.

II. Diriment impediments. 1. Defect of age: 16 completed years in men, 14 in women. Nor does malice now supply age.

2. Antecedent and perpetual impotence, whether absolute or relative. Impotence, according to the more common opinion, is said to be impotence for intercourse of itself apt for generation.

3. Ligamen, or the bond of a prior valid marriage. As long as, by moral certitude and legitimately, that is, in the manner which the law wills, it is not established concerning the dissolution or nullity of the prior marriage, another marriage is illicitly attempted.

The mode of proof is governed chiefly by the Instruction of the Holy Office, 1868. In the more difficult cases of less perfect proof, recourse must be had to the Holy See.

4. Disparity of cult, in the marriage of a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism. Therefore immune from the impediment are all those who have never belonged to the Church. According as it matters for the validity of marriage, which presumption favors, baptism certainly conferred is judged valid or not valid, and the party who is commonly considered as baptized is presumed baptized or not. Yet no virtual dispensation is contained in that presumption. Therefore practically, unless excessive difficulty stands in the way, provision must be made for the certitude of the contract or sacrament by baptism certainly conferred or by a dispensation as a precaution. In dispensation from this impediment, the same cautions as in mixed religion must be prescribed for validity.

5. Sacred order, even if the ordained refused to emit the vow of chastity.

6. Profession of solemn vows, or also of simple vows to which the Holy See has specially joined this invalidating force.

7. Abduction, or, by today's law, violent abduction of a woman (not of a man) from a safe place into an unsafe place, or detention in the place where she is staying, for the sake of entering marriage. The abduction of a minor girl is presumed violent. The impediment does not cease except after liberty has been recovered.

8. Crime, whether: a) of adultery alone, when, during the same marriage, both parties adulterous between themselves have mutually given faith concerning entering marriage, or have attempted marriage even by a civil act only. In what order each occurred does not matter; b) of spouse-killing, of which both were authors by formal conspiracy. Probably the intention of marriage conceived by one or the other and manifested to the other can be required; indeed, according to some, the intention conceived by each and manifested to the accomplice; c) of adultery concurring with spouse-killing, during the same marriage. Mutual machination of death is not required; but, in the killer, several require the intention of marriage with the other party, and indeed manifested to this other.

This impediment is contracted even by one ignorant of it. It can be multiple. Crime before baptism is washed away by baptism; nor does spouse-killing committed by an infidel alone harm the faithful party, unless the civil law itself urges the impediment for the infidel party.

9. Consanguinity, or propinquity arisen from generation, between persons of whom one has been generated by another (direct line), or who come together in one sufficiently proximate common author (stock) (oblique or transverse line). It is computed by degrees, which, in the direct line, are as many as generations; in the oblique line, canonically, are as many as the generations in the longer tract of distance from the stock. Where the tracts are unequal, mention of the shorter tract is sometimes useful, indeed necessary. The nearer degree is then said to be touched. Civilly, the whole distance by which both are separated from each other is customarily computed, as in Roman law.

Multiple consanguinity is had because of a multiplied common stock, with attention paid to the fact that one stock is made from two spouses.

Consanguinity is distinguished as legitimate and illegitimate. It is bilateral or full, which joins those who communicate both from the father and from the mother; and unilateral or half, on the part of the father alone or of the mother. Full brothers are called germani; consanguine brothers, those who communicate through the father alone; uterine, those who communicate through the mother alone. Formerly relatives through the paternal line were called agnates; through the maternal line, cognates.

Moreover consanguinity invalidates marriage infinitely in the direct line; but in the oblique line, within the first three degrees of consanguinity, legitimate or not. In the first degree of the direct line it is of natural law; in the collateral line, marriage between brother and sister is now at least prohibited by natural law. In other degrees it is of ecclesiastical law, well founded upon reasons of preserving reverence and purity of morals.

Converted and baptized infidels are held by these impediments with all relatives, baptized or non-baptized.

10. Affinity, which is now defined as the bond of propinquity induced through a valid marriage, whether ratified, or ratified and consummated, between either spouse and the consanguines of the other. But in whatever line and degree the consanguines of one spouse are, in the same they become affines of the other spouse. Since only the marriage of the baptized is ratified, affinity does not arise from the marriage of infidels. Multiple affinity will be with consanguines who are united with the other spouse by a multiple bond of consanguinity; or with a spouse who is a consanguine of the prior spouse.

Affinity is not proved in any degree to be an impediment of divine or natural law. Nor does it hold infidels after baptism, unless by the conversion and baptism of both their marriage has certainly been made ratified.

But by ecclesiastical law, affinity today invalidates marriage infinitely in the direct line; but in the oblique line, within the first two degrees.

11. Public honesty is a certain extension of the impediment of affinity, founded upon the ratio of public decency, which now, arising from every invalid marriage, whether consummated or not, and from public or notorious concubinage, invalidates nuptials in the first and second degree of the direct line, between the man and the consanguineous persons of the woman, between the woman and the consanguineous persons of the man.

Public here is what has been divulged or will easily be divulged; notorious adds openly divulged knowledge (notoriety of fact) or a sentence which has passed into a judged matter, or a judicial confession (notoriety of law).

Infidels, not even after baptism, because of prior facts, are in any way held by this impediment.

12. Spiritual kinship, from baptism, between the baptized person and the one baptizing; between the baptized person and godfather or godmother. And legal kinship from adoption, insofar as civil law establishes that impediment as diriment.