Chapter I: General Matters on Impediments and Dispensations

— Notion of impediment. In the broadest sense, an impediment is whatever stands in the way of the validity or liceity of matrimony: even natural inability for any contract whatever, such as insanity gives, and the state of sin itself. - In a broad sense, it is whatever externally, by divine or human law, stands in the way of the validity or liceity of matrimony: then it is also a defect of substantial or accidental form, as if matrimony is made without the pastor, without banns. - In the proper sense, it is whatever externally, by divine or human law, makes a person unable, not for any contract whatever, but for matrimony, or forbids him to contract marriage. Then a defect of form is not an impediment. And thus it is understood in the Code. Wherefore defect of solemnities is not numbered among impediments (cf. d'Annibale, III, 429; Gasparri, I, 265-266).

— Division of impediments. 1. An impedient impediment "contains a grave prohibition of contracting marriage": yet this does not render it invalid (c. 1036, §1). A diriment impediment, on the contrary, stands in the way of the very validity of marriage, which at the same time it gravely prohibits (c. 1036, §2).

2. An impediment is judged public which can be proved in the external forum; otherwise it is occult (c. 1037).

You should observe that in the Code itself, marriage and delict are said to be occult and public in a diverse manner, so that the notion handed down here is by no means general. Therefore a case occult or public is one thing; an impediment public or occult is another. It can well happen that an impediment can be proved in the external forum, which nevertheless is so commonly unknown that its case can and must be said to be occult.

Public and occult impediments can be such either by their nature (c. 1971, §2), or by fact. By their nature public are said those to which origin was given by a fact which must occur before the forum of the Church or in an assembly of the faithful, such as the impediment of order; or which must be entered in public registers: age, legitimate consanguinity, and mixed religion itself; or which can be proved by the testimony of a qualified witness testifying from his office or of two immediate witnesses: ligamen.

By fact, an impediment will be public whose proofs of the external forum are truly at hand, even if it is widely unknown. But the question controverted before the Code, whether an impediment should be called occult or rather public which is known materially in its elements but not formally in its juridical force, or whose cause indeed is known but not the effect of producing an impediment, can today be passed over. For the fact which is known can be proved in judgment, where the law is not unknown (cf. Cappello, III, 200, 3).

3. According to their origin, impediments of divine law are distinguished, which the Church authentically declares, and those of positive human law, which the Church establishes, or, for the non-baptized, the competent power establishes.

4. According to the discipline of dispensation, impediments are of lesser grade and of greater grade. Dispensation from the former is not invalidated because of the vice of obreption or subreption. They are: consanguinity in the third degree of the collateral line, affinity in the second degree of the collateral line, public honesty in the second degree, spiritual kinship, crime from adultery or from attempted marriage, even by a civil act only (c. 1042).

— Author of impediments. 1. Impediments of divine law are at the same time of natural law.

2. Impediments of human law for the baptized are established by ecclesiastical law alone. Their constitution is now reserved to the Holy See, with custom also excluded, insofar as a custom inducing an impediment is reprobated (c. 1041). For non-baptized persons, the power of inducing even diriment impediments does not seem to be removed from civil authority.

3. A bishop or local Ordinary can forbid some particular marriage in his territory, but only for a time and while a just cause endures.

The pontifical authority alone also, with even a custom contrary to impediments by abrogation or derogation reprobated (c. 1041), can suppress or relax impediments of ecclesiastical law.

— Subject of impediments. Only the baptized are directly bound by canonical impediments; only infidels by the impediments of civil law. But an impediment in only one or the other party renders the marriage illicit or invalid for both parties (c. 1036, §3).

As regards the form of celebration, the exempt party would of itself communicate its exemption with the other party, unless now it had been established otherwise by positive law (cf. Gasparri, I, n. 297).

After conversion and baptism, a fact before baptism brings forth an impediment if it subsists or perseveres in a natural bond, but not in a bond in the canonical manner.

— Dispensation or relaxation of impediments.

1. The Supreme Pontiff possesses the fullest faculty of dispensing in all impediments of ecclesiastical law, and of declaring divine law concerning the same matter. The civil power can relax its impediments for the non-baptized. Dispensation from occult impediments is sought from the Sacred Penitentiary; for public impediments the Sacred Congregation of the Sacraments is to be approached, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office is to be approached.

2. Those inferior to the Supreme Pontiff cannot dispense in impediments, unless Ordinaries, when the fact is doubtful and it is a question of laws in which the Roman Pontiff is accustomed to dispense (c. 15); or when recourse to the Holy See is difficult and at the same time there is in delay danger of grave harm, and it is a question of a dispensation which is customarily conceded by the Apostolic See (c. 81); - or unless by indult or by the common law itself this faculty has been given.

— Faculties granted to Ordinaries. 1. General faculties have customarily been granted to Nuncios or Apostolic Delegates; to bishops, Vicars Apostolic, and Prefects Apostolic.

1. By force of c. III of their faculties, Nuncios or Apostolic Delegates can dispense from impedient impediments; for a certain number of cases, from diriment impediments of ecclesiastical law, whether public or occult, excepting those which arise from affinity in the direct line, after consummated marriage, from sacred order, and from solemn religious profession; they can sanate in the root, for a certain number of cases, marriages null because of a diriment impediment, when renewal of consent is morally impossible, yet the party conscious of the impediment having been warned concerning the effect of the sanation. The clauses to be observed, and the communication with an auditor or secretary acting in the place of the Nuncio, are indicated in the formula (cf. Epitome Iuris, I, p. 363 s.).

2. As regards local Ordinaries, by decree indeed of the S. C. Consistorial, April 25, 1918 (Per., IX, 116), the faculties of the external forum which before had customarily been granted were first abrogated; but since the necessity of arming Ordinaries with habitual faculties was soon demonstrated, the same Sacred Congregation, by letters of March 17, 1922, sent various lists to the bishops, of quinquennial faculties which local Ordinaries not subject to the S. C. de P. F., in the year in which they must report to the Holy See, can obtain from the respective Congregations or from the Sacred Penitentiary. After the Motu proprio of April 20, 1923, all these faculties are bestowed by the S. C. Consistorial itself, the right of the individual Offices to draw up and change formulae remaining intact.

To Ordinaries outside Europe, and also to many Ordinaries of Europe, the S. C. of the Sacraments grants the faculty of dispensing in diriment impediments of lesser grade and in impedient impediments arising from a vow; besides this, in more urgent cases, of dispensing from impediments: a) of consanguinity in the second degree or in the third mixed with the first, provided no scandal or wonder arises from it; in the second degree of the collateral line; b) of affinity in the first degree of the collateral line equal or mixed with the second; c) of public honesty in the first degree, provided it is certainly established that the spouse cannot be offspring generated by the other of the contracting parties.

Besides this, at the time and in the act of sacramental visitation or of sacred missions and no further, they can dispense from all matrimonial impediments mentioned above with those who are found to be living in concubinage; they can sanate in the root marriages contracted invalidly because of impediments of lesser grade, if there would be great inconvenience in requiring from the party ignorant of the impediment a renewal of consent, provided the former consent perseveres and the danger of divorce is absent.

By that distinction between consanguinity in the third degree and that which is in the third mixed with the first, the Sacred Congregation in no way thinks to convert consanguinity of a mixed degree into an impediment of greater grade, or to change the computation of the Code; it restricts only the delegated faculty.

From the Holy Office, the same Ordinaries can obtain the faculty of dispensing over the impediment of mixed religion and, if the case calls for it, also over disparity of cult as a precaution, the due cautions having been furnished; of sanating in the root marriages attempted before a civil official or a non-Catholic minister with the impediment of mixed religion or disparity of cult.

The faculties of both Congregations can be exercised everywhere toward subjects, with non-subjects, within the limits of the territory; they are delegable; yet in such wise that the faculty of sanating in the root proceeding from the Holy Office can be subdelegated only to pastors, in individual instances.

The Sacred Penitentiary, in the internal forum, even extrasacramental and outside the diocese, for the flock committed to him [faculty!], also for five years, gives the faculty of dispensing for seeking the debt with a transgressor of a private vow of perfect and perpetual chastity emitted after completing the eighteenth year of age, who has contracted marriage with such a vow; of dispensing over the occult impediment of crime, yet without machination (of death), whether marriage has been contracted or is to be contracted, a grave and lasting salutary penance having been enjoined. The faculty can be subdelegated, within the boundaries only of the diocese, to the Canon Penitentiary and to vicars forane for the forum of conscience and in the act of sacramental confession, even habitually; likewise also to some confessors for special causes; to others it cannot be subdelegated except in individual cases where they have recourse.

3. To bishops, Vicars Apostolic, and Prefects Apostolic of its jurisdiction, the S. C. of Propaganda Fide also grants matrimonial faculties through formulae which after the Code have been newly drawn up; and there are three in kind, yet in such a way that Formulae II and III are distinguished as greater (for Prelates increased by episcopal character) and lesser (cf. our Commentarium on these formulae).

Excepting the first formula, which is restricted to impediments of lesser grade, the others delegate a communicable faculty of dispensing "over matrimonial impediments, whether of lesser or of greater grade, as much public as occult, even multiple, yet of ecclesiastical law; excepting impediments arising from the sacred order of Presbyterate, from defect of the prescribed age, and from affinity in the direct line after consummated marriage"; and of sanating in the root marriages invalidly contracted because of some one of the impediments in which they can dispense.

But when a petition has been sent to the Holy See, Ordinaries are not to use their faculties unless from a grave and urgent cause, and they are at once to warn the Holy See concerning the matter (cc. 1048; 204, §2).

2. From the common law itself, cc. 1043 and 1045:

a) when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring;

b) whenever an impediment is detected when all things have already been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See (the case which was called perplexed);

c) for the convalidation of a marriage already contracted, if the same danger is in delay and there is not time to have recourse to the Holy See; provided scandal is removed, and, if dispensation is granted over disparity of cult or mixed religion, the customary cautions are furnished (which latter condition is required for validity);

d) in these circumstances, I say, local Ordinaries can dispense both over the form to be observed in the celebration of marriage, and over all and individual impediments of ecclesiastical law, whether public or occult, even multiple, excepting the impediments of presbyterate and affinity in the direct line after consummated marriage.

Moreover, they can dispense their own subjects wherever dwelling, and all those actually staying in their own territory. They must see to it that scandal is removed, and, if it is a question of disparity of cult or mixed religion, that the customary cautions are furnished.

That faculty, annexed by the common law to their office, according to the definition of c. 197, can be considered as ordinary and therefore delegable.

— Faculties of pastors. In urgent danger of death, if not even the local Ordinary can be approached, the pastor assisting at the marriage possesses the same faculty, ordinary and therefore delegable.

But in a perplexed case, or for convalidating a marriage (in a quasi-perplexed case), if the local Ordinary cannot be approached, at least without danger of violating secrecy, the pastor can do the same as the Ordinary, but for occult cases only (cc. 1044, 1045).

But the pastor must at once inform the local Ordinary concerning a dispensation granted for the external forum, and note it in the book of marriages (c. 1046).

— Faculties of the priest who assists at a marriage which is validly contracted before only two witnesses, according to the norm of c. 1098. This priest is furnished with the same power as the pastor by cc. 1044 and 1045; and he is held by the same obligation of notifying the Ordinary.

Faculties of the confessor. He can do the same as the pastor and the priest just mentioned, but for the internal forum, in the act of sacramental confession.

— Things to be observed concerning these faculties. a) Concerning the faculty in danger of death. - The danger of death can be either of the person who is bound by the impediment or of the other party. In that danger no difficulty of approaching the Holy See is required. A twofold just cause of dispensing is indicated: the necessity of conscience, if by marriage an occasion of sin is suppressed, or scandal is removed, or material damage is repaired, or hatred is extinguished, etc.; the legitimation of offspring born or to be born, provided it is not adulterine or sacrilegious, because this is not legitimated by marriage.

Provision will chiefly have to be made for removing scandal if a deacon or a professed religious afterward recovers. If there is hope of recovery, a promise of departing into a distant region is to be required, or at least of correcting by fervor of life the bad edification of the contracted marriage. When it is a question of the impediment of disparity of cult or of mixed religion, the customary cautions or promises (cf. n. 767) must be required. If they do not seem able to be fully obtained or prudently demanded, the Ordinary more probably acts validly who, in these extreme matters, is content with the conditions required by divine law (cf. Pigui, n. 90, 6; Cerato, Matrimonium, p. 47; Cappello, III, n. 232). Yet we gather this less from the present faculty than from c. 81, by which, where there is in delay a danger of grave harm, the Ordinary is permitted to dispense according to the mind of the Holy See. Wherefore, contrary to what Cerato thinks, p. 50, outside danger of death, even in a perplexed case, we judge with Cappello, n. 233, that the cautions are to be required for the validity of the dispensation.

b) Concerning the faculty in a perplexed case. Here it is required that the Holy See cannot be approached in time. And by the response of the Pontifical Commission, March 1, 1921, both the Ordinary and the pastor can use their power in a perplexed case when the impediment, even if known before, is nevertheless detected by them only then, when all things are prepared for the nuptials.

c) Concerning the faculty of the pastor and assisting priest. This supposes that the Ordinary cannot be approached at least by letters. For the Pontifical Commission itself, November 12, 1922, to V, judged that the Ordinary cannot be approached if he cannot be approached except by telephone or telegraph (Per., XI, 193). And by analogy from c. 1045, §3, if the matter must be covered with secrecy with respect to the Ordinary, then also he seems unable to be approached (Gen., II, 523 bis). Outside danger of death the faculty is restricted to occult cases. But whether the case is occult by its nature or only in fact, it seems comprehended by the faculty of the pastor and assisting priest. The secrecy whose danger excuses from approaching the Ordinary is not only sacramental secrecy, but also committed or natural secrecy: when grave damage or inconvenience stands in the way of revelation. Because the office of pastor comprises no jurisdiction of the external forum, the faculty given here does not seem annexed to the office. Wherefore it is not ordinary nor can it be subdelegated (Vlaming, op. c., n. 415). Yet this is probably disputed. But the faculty extends to all impediments from which he can dispense in danger of death, so that even (if the case occurs, for example where a marriage is to be convalidated) he seems able to dispense in the form of marriage.

What if, for example, a vicar forane can be approached to whom the Ordinary has delegated his power? Vlaming judges (op. c., n. 312) that recourse must then be had to that delegate, so that otherwise the pastor would dispense invalidly. That severity does not seem to us able to be drawn from the Code. Yet the Ordinary could prescribe recourse to the delegate for liceity.

d) Concerning the faculty of the confessor. Several, for example P. Cappello, III, 258, deny that this faculty extends to impediments public by their nature, even if the case is occult. And indeed, in urgent danger of death, there will scarcely occur a case where the Confessor cannot either obtain that the penitent seek a dispensation in the external forum from the pastor or assisting priest then intervening according to c. 1044, §2, or himself grant it as assisting priest. But if a case of necessity has intervened (as if an occult subdeacon does not wish to be known to the pastor as a violator of his vow), it does not seem to be ours to circumscribe the force of the general canon. But if danger of divulgation, or of conflict between the internal and external forum, is to be feared, the confessor will require from the penitent promises which remove the danger: of seeking a dispensation in the external forum, of permitting entry in the secret archive, or recourse to the Sacred Penitentiary, which perhaps may consent that the marriage be noted in one secret archive, or otherwise provide (cf. concerning this matter the full discussion in Monitor, 1920, p. 59 ss., which P. Arendt called back to examination: Du cas perplexe et des pouvoirs du confesseur d'après le Code, Nouv. Rev. Théol., 1920, p. 261 ss.; Cappello, III, 238).

What if a marriage is celebrated before a delegated priest, and at that moment an impediment is detected in circumstances in which neither pastor nor Ordinary can be approached nor the marriage deferred?

Then either you will say with some, for example Cappello, III, 236, that the delegated priest has the power of dispensing which belongs to the pastor, so that, according to the norm of c. 200, §1, he has all those things without which he could not exercise the power. And indeed it would seem wonderful that a duly delegated priest could do less than any priest assisting when marriage is permitted to be contracted before witnesses alone. Or at least you will permit him to handle the perplexed case as before the Code, that is, to declare that the impediment has ceased, with the obligation added of recurring to the Ordinary.

— The notation of dispensations in the internal forum. "Unless the rescript of the Sacred Penitentiary carries something else, a dispensation granted in the non-sacramental internal forum over an occult impediment is to be noted in a book diligently kept in the secret archive of the curia: nor is another dispensation for the external forum necessary, even if afterward the occult impediment has become public; but it is necessary if the dispensation had been granted only in the sacramental internal forum" (c. 1047).

— Things to be noted concerning the faculty of dispensing and its use.

1. Concerning a multiple impediment. A general principle is now established, according to which those who enjoy a general indult of dispensing can use it whether the same impediment is multiple or several impediments occur at the same time, even public impediments, and this both in marriages to be contracted and in marriages already contracted (c. 1049).

Yet where, for one out of several public impediments, the faculty is lacking, recourse must be had to the Holy See for all. But if, after a dispensation over others has been granted by the Holy See, an impediment or impediments are detected over which the faculty of dispensing was had, use of this faculty is to be made, with a new recourse omitted (c. 1050).

2. Concerning the legitimation of offspring. Whenever a dispensation over a diriment impediment is granted, by ordinary power or by power which has been bestowed through a general indult, by that very fact there is also granted the legitimation of offspring which has already been born or conceived from those who are dispensed, excepting, however, adulterine and sacrilegious offspring (c. 1051).

Therefore every dispensation, when the Holy See itself has granted it, whether in gracious form or by committing the execution to the local Ordinary, since it remains from ordinary power, brings this legitimation. It must be said otherwise concerning a dispensation which, in a particular case, is permitted to be made by the Ordinary¹. For then the faculty does not extend to legitimation, unless it is expressly said. But if the Ordinary dispenses by force of a general indult, the legitimation is contained in the dispensation itself. Hence it also follows that offspring are legitimated by the dispensations granted by force of cc. 1043-1045, unless dispensation is made from a vow or the offspring has been adulterine.

3. Concerning error in the supplicatory petition or incomplete exposition. a) "A dispensation from a lesser impediment once granted is invalidated by no vice either of obreption or subreption, even if the only final cause set forth in the prayers had been false" (c. 1054).

But obreption is had in suggesting a false cause; subreption in concealing a matter which would stand in the way of the dispensation and therefore, from the style of the curia, ought to have been stated.

Therefore the petition itself suffices, so that a sufficient cause for the dispensation is considered to be present. Wherefore even if the one dispensing, for example the Ordinary, had been conscious of the error or fraud of the parties, he will have the right of dispensing.

Nevertheless other causes of nullity subsist, for example if the dispensation had been extorted by force and fear.

b) "A dispensation from the impediment of consanguinity or affinity granted in some degree is valid, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree had been kept silent" (c. 1052).

Therefore a twofold case is considered: a) they were affines in the second degree or consanguineous in the third, for whom a dispensation in the first degree of affinity or in the second of consanguinity was obtained: the dispensation is valid; nothing must be corrected; b) they were impeded by multiple consanguinity or affinity. One has been declared. Provided the omitted degree is not superior, the dispensation is valid; nor does the Code require the condition of good faith in the one keeping silent. Therefore for validity it is enough to have indicated a simple impediment in the nearer degree (De Smet, De Spons., n. 47). But if affinity concurring with alleged consanguinity was kept silent, the dispensation is not valid, for the impediments are disparate or of diverse species.

This rule again is general: it is to be applied whoever the author of the dispensation is. But the Code deliberately speaks of an error which has crept into the petition or concession. For it can happen that the supplicatory petition itself was incomplete; and it also occurs that an imperfect response is given to a well-drafted petition, even from an error of the copyist. Yet each error of itself vitiates the rescript (cf. De Smet, De Spons., 920, 3 and note 1).

4. Virtual dispensation from an impediment. A dispensation given by the Holy See over a ratified and non-consummated marriage, or a permission made for passage to other nuptials because of the presumed death of a spouse, always carries with it a dispensation from the first form of the impediment of crime, that is, adultery with promise or attempted marriage, but not from the other forms, where killing of the spouse has intervened.

Here you should observe that it is necessary that the dispensation be given by the Holy See, whether in gracious form or in imperative commissory form (mandamus, committimus). Other virtual dispensations, since none are mentioned, no longer seem to exist, even if they existed before the Code. Thus a dispensation in the impediment of disparity of cult used to carry with it a dispensation of the Catholic party from impediments to which the other party was immune.

¹ We deliberately abstain from the words, in forma commissoria, which are not always used with the same meaning. De Smet, De Spons., n. 740, p. 204, note 2. This must be attended to, whether the Holy See dispenses by itself or by a mandatary, or whether the bishop dispenses through granted faculties.

— Execution of a dispensation. Dispensations over public impediments granted to the Ordinary of the petitioners are always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers, yet the Ordinary of another place in which perhaps the marriage is contracted having been warned (c. 1055).

Mention of the faculty delegated by the Holy See is always to be made in the dispensation to be granted (c. 1057).

You should observe that this mention is commanded, yet not for validity. A dispensation for the extrasacramental internal forum is also committed to other persons, for example to the pastor; for the sacramental forum, to the confessor.

— The gratuitousness of dispensation in the diocesan Curia. Saving an express concession of the Holy See, for dispensations which the Ordinary himself grants, every emolument is forbidden to be received, under penalty of restitution, "excepting some modest prestation by title of expenses of the Chancery," and this only from those who are not poor.

For dispensations which the Ordinary executes, the rescript itself often indicates what can be sought for the execution. And also, from c. 1507, §1, after the approval of the Holy See has been obtained, in a provincial council or convention, the tax of execution for the whole province can be predefined.

For dispensations which Nuncios and Apostolic Delegates grant by force of their faculties, it is said: "The persons about to marry should pay some offering, if it can be done, according to their means," to be transmitted to the S. C. of the Holy Office, if it is a question of disparity of cult, to the S. C. of the Sacraments, if there were other impediments.

In conceding dispensations from the faculties of the S. C. of the Sacraments, Ordinaries must see to it that those who are found able to pay should pay an equitable offering according to their means, in service of the Holy See. By the indult of the Holy Office we are taught that the tax customarily sought for any dispensation "which the Right Reverend Lord Ordinary will exact, unless because of the diversity of cases it must be moderated or remitted because of the poverty of the petitioners or other just causes" is 15 francs. The Ordinary is permitted by the Holy Office to retain the fifth part of the taxes which they exact for his own necessities and those of his diocese.

— Principle concerning capacity and liceity of marriage. "All can contract marriage who are not prohibited by law" (c. 1035).

Therefore, 1. when it is a question of marriage in general, the impediment must be proved, and in a doubtful impediment one must respond in favor of liberty. This rule is universal when it is a question of impedient impediments; when it is a question of diriment impediments, the right acquired by a third party must remain safe; wherefore it is not lawful to contract a new marriage if the invalidity of the prior marriage, or its dissolution, for example by death, is only probable. But an application of the rule is had in c. 1068, §2: "If the impediment of impotence is doubtful, whether by doubt of law or by doubt of fact, marriage is not to be impeded." De Smet (De Spons., 472) not undeservedly restricts this application to absolute impotence; for when it is a question of relative impotence, we fall under n. 2. (Yet we do not wish to deny the probability, at least extrinsic, of the more benign opinion.)

2. The rule is less universal when it is a question of the faculty of nuptials between definite persons. Even then it holds concerning impedient impediments, and concerning impediments of ecclesiastical law which are doubtful by law. In impediments of ecclesiastical law which are doubtful by fact, the Ordinary can dispense in those impediments in which the Holy See is accustomed to dispense. But neither before this kind of dispensation, nor when it is a question of a doubtful impediment of natural or divine law, is marriage licit between persons thus doubtfully impeded. Wherefore c. 1076, §3: "Marriage is never to be permitted if there is any doubt whether the parties are consanguineous in any degree of the direct line or in the first degree of the collateral line."

The reason for the distinction between each kind of doubt is manifest. In the former, you would oblige an unwilling person to continence: the common good itself requires that this not be done without manifest reason; in the latter, the faculty of marriage with all persons not prohibited by a similar impediment is permitted to remain.

What must be said after the fact, we shall see below. Now the individual impediments must be proposed, yet the rule of communication of impediments having been recalled.

— Communication of impediments. "Although an impediment has itself on the part of only one party, nevertheless it renders the marriage either illicit or invalid" (c. 1036).

Therefore if an infidel contracts with a faithful person, or a non-Catholic with a Catholic, the impediments by which the Catholic is affected impede the marriage even with the free party: the immunity of the free party is not communicated.

— I. What. Of how many kinds. An impediment properly, and in the Code, is not whatever, even internally or externally, stands in the way of marriage, but is whatever external, by divine or human law, renders a person unable, not for every contract, but for matrimony, or forbids him to contract marriage. For there is an impedient impediment, which contains a grave prohibition, and a diriment impediment, which at the same time prohibits and invalidates.

It is public which can be proved in the external forum; otherwise it is occult, and that either by its nature or by fact.

According to origin, it is of divine law, which the Church merely declares authentically, and of positive human law: that is, for the baptized, of ecclesiastical law alone; for the non-baptized, of civil law alone.

According to the discipline of dispensation, an impediment is of lesser grade, whose dispensation is not weakened because of the vice of obreption or subreption, and an impediment of greater grade.

The Holy See alone establishes or removes impediments. The Ordinary can forbid a marriage for a time, while a just cause endures.

II. Subject. Only the baptized are directly bound by canonical impediments, only the non-baptized by civil impediments. But an impediment existing in either party makes the marriage illicit or invalid for both. For whom the form must be observed will be said later.

After conversion and baptism, a fact before baptism creates an impediment if it subsists or perseveres in a natural bond, but not in a merely canonical one. When it is a question of marriage in general, those doubtfully impeded preserve the right of contracting marriage; but if it is a question of marriage between definite persons, this rule does not hold except concerning impedient impediments or concerning impediments of ecclesiastical law which are doubtful by law.

III. Dispensation. 1. Those dispensing. The power belongs to the Supreme Pontiff for all canonical impediments; to the civil power for impediments of civil law. For occult impediments the Penitentiary is approached; for public impediments, the S. C. of the Sacraments, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office must be approached.

Local Ordinaries, when the fact is doubtful, or when recourse to the Holy See is difficult and, in delay, there is danger of grave harm, dispense in impediments which the Holy See is accustomed to relax.

They also dispense by force of a general indult granted by the S. C. of Propaganda Fide or by a competent Congregation.

From the common law, they can dispense their own subjects wherever dwelling, and all others in their own territory, by a faculty granted as ordinary, both over the form of celebration and over all impediments of ecclesiastical law, excepting presbyterate and affinity in the direct line after consummated marriage: when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring; besides this, if the Holy See cannot be approached in time, in the case which is called perplexed, that is, whenever an impediment is detected when all things are prepared for the nuptials and the marriage cannot be deferred without probable danger of grave evil until dispensation has been sought from the Holy See; similarly, when the convalidation of a marriage already contracted is urgent. Scandal must be removed, and, if dispensation is made over disparity of cult or mixed religion, the customary cautions must be required.

The pastor assisting at marriage in urgent danger of death can do the same if not even the Ordinary can be approached, at least by letters. In a perplexed case or for convalidating a marriage, he can do the same for occult cases only.

The priest who, when a marriage is validly contracted before two witnesses, assists at the marriage, enjoys the same power as the pastor.

The confessor can do the same, but only for the internal forum and in the act of sacramental confession.

N. B. Of itself, after a dispensation has been granted in the non-sacramental internal forum, a dispensation in the external forum, which is only a mode of recognizing what had already been validly done, is no longer necessary.

2. Concerning the use of the faculty. a) By a general indult, dispensation of a multiple impediment, or of several impediments concurring at the same time, is permitted. Yet if the faculty is lacking for one public impediment, the Holy See must be approached for all. But if, after dispensation over others has been granted by the Holy See, impediments are detected over which the faculty is had, its use is permitted without new recourse; b) a dispensation bestowed from ordinary power or through a general indult, by that very fact legitimates offspring born or conceived, excepting adulterine or sacrilegious offspring; c) a dispensation granted in some degree of consanguinity or affinity is valid, although in the petition or concession an error concerning the degree has crept in, provided the degree really existing is inferior, or an impediment of the same species in an equal or inferior degree had been kept silent; d) a dispensation over public impediments is always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers; e) saving an express concession of the Holy See, the Ordinary can receive no emolument for dispensations which he grants, excepting, from non-poor persons, a modest prestation by title of expenses of the Chancery.