Title IX: On Second Nuptials

— By the two canons of this chapter the Code recalls that chaste widowhood is indeed more honorable, but that second nuptials are valid and licit if the dissolution of the prior marriage is established; and that a woman to whom the solemn blessing has already once been imparted cannot be blessed again.

Above, already, nn. 754-762, we have treated of conceded faculties. A few things seem to have to be added here concerning their right use.

1. The executor of a rescript of the Holy See can now, from c. 57, substitute another for himself.

2. Which bishop is to be approached? If the spouses belong to diverse dioceses, they are not, however, bound, for the dispensation, to have recourse to both proper bishops, but it is enough that they approach either one endowed with the faculty (Ferreres, II, 956). The proper bishop of either is competent, although the bishop of the bride is to be preferred; the bishop of the diocese in which the marriage is celebrated is also competent.

3. A faculty given when all things are already prepared for the nuptials, from the very nature of the matter, excludes the case in which the spouses do not wish to celebrate matrimony in the legitimate form. Here, moreover, an impediment is not detected, but the law of the Church is violated.

4. The Ordinary is not considered able to be approached if only the telegraphic or telephonic way is open. Cf. n. 758.

P. Cappello, III, 236, also denies the necessity of using the railroad, "bicycle or motorcycle," which are considered extraordinary means.

5. When an occult impediment concurs with a public one, in order that all things may be proposed together, a twofold way can be entered upon: either, the names having been revealed, the occult impediment is made sufficiently public, so that both impediments can be referred to the Sacred Congregation of the Sacraments or the competent Congregation in the external forum; or, while recourse is had to the Sacred Penitentiary for the internal forum, it is manifested that there is besides a public impediment for which dispensation has at least been sought or perhaps already obtained.⁽¹⁾

6. Impediments from which the local Ordinary can dispense, not by force of indult, but by force of ordinary power (a non-reserved vow, doubtful impediments), can be relaxed by him even if they concur with public impediments for which the Holy See must be approached. And it also seems that, in the same adjuncts, he can use a faculty which, even from an indult, he has had over occult impediments. This is borne out by a reasonable interpretation of c. 1050.

What if a new impediment is detected after the dispensation has been sought but not yet obtained? Cerato thinks that then also it is licit for the Ordinary to use his faculties. Since the words of the canon do not carry this, we think one must have recourse to the Holy See. But if, while the new petition is being sent, the grace previously sought is obtained, then, with a grave cause added, the Ordinary will be able to use his faculty.

⁽¹⁾ And that this is necessary is written, for example, by De Smet, 847, 882; Genicot, II, 527. But they gather this from the Instruction of 1877. And since now, as De Smet himself contends, when an occult impediment in which the Ordinary can dispense concurs with a public impediment concerning which the Holy See must be approached, he is not prohibited from the use of his faculty, would it not be better said that only public impediments are to be proposed together, and that this is declared by c. 1050? Was not the rule which the letters of the Sacred Congregation of Propaganda Fide of May 10, 1837 (Collectanea, II, 1674), had before mentioned more universally concerning all impediments deliberately tempered by the addition, in c. 1050, of the word public? If matters stand thus, the rule here set down in n. 5 must no longer be observed. A reason of moderation is added. The obligation of manifesting a public impediment which concurs with an occult one, concerning which the names of the petitioners are kept silent, is not free from inconvenience, from danger of revealing the secret (cf. Cappello, III, 275, sqq.).

— Causes for dispensing. Since the Code is silent concerning causes, we are referred to the received style of the Curia.

Therefore there must be distinguished honorable causes and infamous causes, to which a delict or sin gives origin; canonical causes, or those customarily admitted, and non-canonical causes, or extraordinary but reasonable causes. The Ordinary cannot use a delegated faculty unless canonical causes are present.

It happens that a sufficient canonical cause is composed of various causes not sufficient of themselves, or that several impelling causes, which help, complete one final or motive cause.

Moreover, the graver the impediment is, the more numerous or graver are the causes necessary.

The chief canonical causes are indicated by the Instruction of Propaganda Fide, May 9, 1877. They are:

1. Honorable causes: a) narrowness of place, i.e., when the place of origin, or even of domicile, is so narrow, or the family so large, that an honorable woman, at least after having been established for some time in marriageable age, would not find there an equal marriage except with a consanguineous or affinal relative. She is considered not to find one if in reality no other offers himself here and now, even if she herself has sought no one, or has rejected several. But place is not the parish, but is made by grouped houses (l'agglomeration), and places which are separated by a mile or a third part of a league are regularly considered distinct. A place is considered narrow which numbers only 300 hearths or 1500 inhabitants, not counting, as is likely, non-Catholics, with whom nuptials are forbidden;

b) superadult age of a woman who is not a widow, i.e., if she has begun her twenty-fifth year of age. The more advanced she is in age, the more urgent the cause will be esteemed;

c) defect or insufficiency of dowry, i.e., of material goods by which the burdens of matrimony are to be borne;

d) lawsuits arisen over succession of goods, or grave and imminent danger of them, i.e., if the woman will find in the husband a suitable patron of her cause;

e) poverty of a widow burdened with offspring, whom the man is prepared to help;

f) the good of peace to be procured either between families or, much more, between republics;

g) convalidation of a marriage contracted in good faith by at least one party;

h) excellence of merits, whether of the petitioners or of the parents.

2. Dishonorable causes: of themselves they are graver than honorable causes, and therefore they more easily give access to matrimony: a) excessive, suspicious, dangerous familiarity: you should understand that familiarity which gives place to whisperings, so that scandal must be avoided;

b) infamy of the woman from copula had, and scandals to be avoided thence;

c) danger of celebrating a mixed marriage or one before a non-Catholic minister;

d) danger of civil marriage;

e) removal of grave scandals, for example from a merely civil marriage;

f) cessation of public concubinage.

By this enumeration other similar causes are not excluded, for example danger of incontinence for a young widow. And if, in a narrow place, one or another also offers himself, that slight option between two will not prohibit the Holy See from granting a dispensation.

The componenda is sometimes called a cause without cause, i.e., a fixed sum of money which the petitioners pay for a pious cause. This covers other reasonable causes or is itself the cause, and indeed a public one, since it promotes the good of the Church. This is not admitted except by a Sacred Congregation, in the external forum. For a similar reason the tax is increased if dispensation must be made from a graver impediment.

The causes alleged are, as it were, proper to the woman. But similar ones in the man will not be rejected and can be admitted.

Non-canonical causes strengthen canonical ones and will suffice in impediments of lesser degree.

These examples are adduced by Noldin, III, 593: "1. On the part of the female petitioner: a) if she is deprived of either or both parents; b) born from illegitimate birth; c) detained by infirmity, deformity, or some other defect; d) has already been deflowered by another. 2. On the part of the male petitioner: a) if he is detained by infirmity; b) if he is a widower burdened with offspring, for whom he seeks a good mother; c) if he is in need of the help of this woman, e.g., for managing domestic affairs. 3. On the part of the marriage: a) the published proposal of contracting; b) the convenience of the marriage; c) the good morals of the petitioners; d) the good of the parents, if the father or mother needs help."

— Things to be observed concerning seeking a dispensation. 1. A petition for the external forum is better composed by the pastor; another, for the internal forum, by the confessor. In the latter the names of those who wish to be dispensed are kept back.

2. Each, unless secrecy stands in the way, is better directed to the local Ordinary, who himself not rarely will be able to grant the dispensation.

3. Besides the designation of the petitioners and of the diocese to which they belong, these things must be indicated: a) all impediments, at least public ones, and those in which the Ordinary cannot dispense by ordinary power (if the petition is sent to the Holy See), i.e., how many they are in species, how many in number. In today's law, it is not established that, for validity, the mixed degree as such must be indicated, since, from the Code itself, in an unequal collateral line, the degree is defined by the greater distance (cf. Vlaming, II, 453, 4°); b) circumstances which make it easier or more difficult to dispense. This, however, does not affect the validity of the rescript, unless the Sacred Congregation has required the declaration as substantial. Cf. c. 42, §1; c) the causes for dispensing; d) the economic status of the petitioners, so that a suitable tax can be exacted.

Before the Code, those were called miserabiles who had to seek livelihood for themselves by manual labor; truly poor, those whose goods did not much exceed 3000 francs; almost poor, those whose goods did not greatly exceed 10,000 francs. The goods of both petitioners together must be computed, without neglecting the office which they exercise, a legitimately expected inheritance, unless the other party is non-Catholic. For the patrimony of this party is not attended to, since nothing is conceded to him or her.

Before the reform of the Curia this distinction was of much greater moment, because the Sacred Penitentiary granted dispensations, even in the external forum, to the poor, and, for some regions, also to the almost poor. Today, since the distinction is no longer of such great moment, authentic definitions of the poor have not been given. Moreover, with regions the manner of indicating goods varies. Sometimes it is said what the petitioners are prepared to pay; or the Holy See admits what the parties offer of their own accord. Nor is payment of the tax a condition of validity.

4. A dispensation can be sought while one or even both parties are unaware. But they are not compelled to use the dispensation. Yet if the impediment affects both parties at the same time, as consanguinity, affinity, the acceptance of either party removes the impediment for both.

— Things to be observed concerning execution of a dispensation. 1. Before the rescript has been received, the faculty which it grants cannot validly be exercised, unless the very authority conceding it has permitted that in its name an oral message be given, or a telegraphic message be transmitted.

2. Clauses are to be observed accurately: all are preceptive; some must be executed for validity.

3. In the external forum, the truth of the petitions must be investigated before execution: this is usually done through the pastor. This investigation, however, is no longer required for impediments of lesser degree. Scandal, if present, must be removed, either through some separation of the spouses who live together scandalously; or, if that cannot be obtained, at least through a declaration before the pastor and two witnesses that they grieve over and detest the external fault, and are prepared to fulfill the penance. Then the delegate, by himself or by another, fulminates the dispensation, i.e., executes it. Execution is prescribed to be made in writing, with mention made of the faculty obtained and of the impediment from which dispensation is made. If the executor has erred in execution, he can better execute the dispensation again, without new recourse (c. 59).

4. In the internal forum, competent, from the very inscription of the letters, is any priest approved for confessions in the place where the dispensation is granted, and chosen by the petitioner. The clause: If matters are thus, obliges the confessor to ask from the penitent whether the things set forth are true. He can believe his or her affirmation, unless from extrasacramental knowledge he knows otherwise. The clause: Sacramental confession having first been heard, requires sacramental accusation, but not absolution or a confession worthily made. If this clause is absent, the dispensation can be granted outside confession. The clause: A salutary penance having been enjoined, demands a penance distinct from the sacramental penance.

Salutary is anything useful. Sometimes a grave and long penance (gravis et diuturna) is enjoined. These things are to be estimated relatively. What grave and long is, we said in n. 614.

The words grave and long sound less severe. Noldin, III, 602, has these things concerning it: "a work of penance which is imposed to be performed every week for a year or for a half-year, or even for a quarter-year, e.g., once or twice every week to recite the rosary, once every week to hear Mass, every Sunday to perform the way of the cross, at least once in the month to receive the Most Holy Sacraments." Most grave and perpetual would oblige to a similar work, or even to annual spiritual exercises, to be performed until death.

This penance must be imposed and accepted, but its omission or an intention of not fulfilling it does not stand in the way of validity.

The clause: The present letters being immediately burned, obliges to full destruction of the letters within three days from the moment indicated in the letters. But a transcript is not forbidden. One party alone is to be dispensed if the impediment is proper to that party, suppose a vow. If the impediment is common to both parties or induced by the fault of both, suppose crime, each party must be dispensed so that penance may be imposed on each. Therefore each must approach a confessor, not necessarily the same one. If two different confessors are chosen, the first confessor must return the rescript to the penitent, who is to hand it over to the other party so that this one also may be dispensed (so almost Noldin, III, 602). No special formula is required. It is granted orally. In confession it is to be given after the accusation, before or after absolution.

A well-conceded dispensation of itself remains efficacious, although before the marriage the cause has ceased: for example, the offspring has died (cf. t. I, 228).