Article IV. On the Execution of a Dispensation

Dispensations can be granted either in gracious form or in commissory form. It is said to be granted in gracious form when the Superior to whom the petition is directed himself grants the dispensation or applies it to the petitioners; hence a concession of this kind is made without an executor, and has effect from the moment when the letters were given (canon 38). A dispensation is said to be granted in commissory form when the Superior commits the execution of the dispensation to another. The person to whom the execution is committed is called the executor; the whole business to be fulfilled by him is called execution; the part of the business which consists in applying the dispensation is called fulmination. Concerning execution, the following hold:

I. The executor of a dispensation performs his office invalidly before he has received the letters and recognized their authenticity and integrity, unless previous knowledge of them has been transmitted to him by the authority of the rescriptor (canon 53). Besides, note:

1. The executor of dispensations can substitute another for himself according to his prudent judgment, unless substitution has been prohibited or the person of the substitute has been predefined (canon 57, § 1).

2. Any dispensations whatever can be committed to execution also by the successor of the executor in dignity or office, unless the industry of the person has been chosen (canon 58).

3. Through the vacancy of the Apostolic See or of the diocese, no dispensation of the same Apostolic See or of the Ordinary perishes (canon 61).

4. The Ordinary of the petitioners, to whom a dispensation over a public impediment has been committed, should execute the dispensation even if the betrothed have departed into another diocese before the execution of the dispensation, and are not going to return, provided the Ordinary of the place in which they desire to contract marriage is advised (canon 1055).

II. If in the rescript of dispensation the mere ministry of execution is committed, the execution of the rescript cannot be denied unless either it is manifestly clear that the rescript is null by a defect of subreption or obreption, or conditions are placed in the rescript which the executor knows have not been fulfilled, or the one who obtained the rescript seems, in the judgment of the executor, so unworthy that the concession of the grace will be an offense to others; and if this last thing happens, the executor, the execution having been interrupted, should immediately make the rescriptor more certain about the matter (canon 54, § 1). But if in the rescript of dispensation the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to grant or deny the grace (canon 54, § 2).

III. The execution of a dispensation includes verification of the prayers, fulfillment of clauses, and certain other things to be observed.

1. Verification of the prayers. This consists in the executor's investigating whether or not the things contained in the rescript of dispensation agree with the case as it stands at the time of execution (canon 38), and indeed agree insofar as that is required for the validity of the rescript. To what extent this is required for the validity of the rescript is clear from what was said in n. 823. In a word: for validity, the truth of those things suffices which had to be expressed for validity. Besides, note:

a) Verification is required only for liceity; indeed it does not press if, as happens, it has already taken place before, and the executor is certain that the matters have not changed. In the case it suffices to investigate whether the tenor of the rescript corresponds to the things set forth in the petition.¹

b) Verification is instituted: for the external forum, for example by questioning the petitioners and witnesses, consulting the parochial books, etc.; for the internal forum, by questioning the penitent. Verification for the external forum can also be instituted through another.

2. Clauses to be fulfilled; moreover, the principal clauses are:²

a) In rescripts of the Holy Office, if it dispenses in the impediment of disparity of worship or mixed religion, there is added the clause: provided first that regularly, according to the prescription of canon 1061, § 2, sufficient provision has altogether been made for the conditions required by the Church, and the Ordinary himself is morally certain that these conditions will be fulfilled, namely on the part of the non-Catholic spouse concerning removing from the Catholic party the danger of perversion, and on the part of both persons about to marry concerning all offspring of each sex being altogether baptized and educated in the sanctity of the Catholic religion. This clause is essential. The clause concerning the obligation of warning those about to marry that they also cannot approach a non-Catholic minister to give or renew matrimonial consent is now not essential, but only preceptive.

b) In rescripts of the Congregation of the Discipline of the Sacraments:

a) If the things set forth are true. This clause is essential insofar as the truth of those things which had to be expressed for validity is required (n. 823).

b) The canonical prescriptions being observed. This clause is essential or merely preceptive according as the prescriptions themselves are essential or preceptive, according to what has been said and what remains to be said.

c) Provided that no scandal intervenes. The clause does not seem to be essential. Moreover, a continuous occasion should be removed by separation if it is voluntary; if it is necessary, it should be rendered remote.³

d) A salutary penance having been imposed on the petitioners. The clause is merely preceptive.

e) Provided that no doubt underlies the matter that the spouse could be offspring generated by the other of the contracting parties. This clause is essential, and in a dispensation in the impediment of public honesty is understood if it is not expressed (cf. canon 1076, § 3).⁴

c) In rescripts of the Sacred Penitentiary:

a) His or her confession having first been heard, or only in sacramental confession. This clause imports that, for validity, it is required that sacramental confession be instituted and that the dispensation be fulminated in confession. Nevertheless the dispensation is not invalid because the confession is sacrilegious or invalid; nor is absolution required⁵ (St. Alphonsus, 1143).

b) Provided that the impediment is occult. The clause is essential.

c) Provided that letters of dispensation over the public impediment have been obtained and the nullity coming from the foregoing remains occult, namely until the nuptials. The clause is essential and is added when a public impediment concurs with an occult one.

d) A grave, or long, or perpetual salutary penance having been enjoined. The clause is merely preceptive; moreover, a penance distinct from the sacramental penance is understood. A long penance is, for example, a penance of one year; a perpetual penance regards the whole life (St. Alphonsus VI, 1143).

"In predefining the quality, gravity, duration, etc., of the penance, let him exceed neither the limits of severity nor those of humanity, and let him take account of the condition, age, infirmity, office, sex, etc., of those on whom the penalty is to be imposed."⁶ If the penitent does not accept the penance, commutation should be obtained; and if this is foreseen, it should be manifested in the petition.

e) Other things having been enjoined which must be enjoined by law, that is, according to the principles of moral theology, for example scandal to be removed, restitution to be made, etc. This clause is likewise merely preceptive.

3. And certain other things to be observed. a) Previous absolution from censures is not required for the validity of the dispensation, unless someone has been censured by a declaratory or condemnatory sentence brought against him (canon 36, § 2); nor is it clear that it is required for liceity. If a sentence has intervened, the censured person cannot validly receive a dispensation unless mention of the censure is made in the pontifical rescript (canon 2265, § 2; 2275, 3°; 2283). Besides, in the case in which absolution from censure has place, the customary form of absolving from censures and sins suffices, that is, the one which is used in sacramental judgment. If absolution from sins cannot be given, for instance because the penitent is indisposed, the absolution from sins being omitted, only absolution from censures is first given.

Note. In the faculty of dispensing is also included the power of absolving from ecclesiastical penalties if any perchance stand in the way, but only for the effect of obtaining the dispensation (canon 66, § 3; n. 809).

b) The executor must accomplish the fulmination itself for the external forum in writing (canon 56); likewise it is better that he accomplish it in this way if the fulmination is made in the non-sacramental internal forum. In the sacramental internal forum it is to be made by living voice and to a person present. It is made to one person only if the impediment affects only one party, for example a vow; if the impediment is common to both parties, it is to be made to both parties, whether the same or a different confessor is chosen by the petitioners.⁷ If a different confessor is chosen, "the prior confessor, after the dispensation has been granted to one according to the form of the letters, must hand over the letters of the Sacred Penitentiary, closed, to the penitent, so that through him they may be handed over to the other party, who likewise should have the same letters executed with him or her through another confessor, whose duty it will be in a case of this kind, when the business has been completed, to tear up the letters."⁸ Nevertheless, even in this hypothesis the fulmination upon the other party is required only for liceity, and for a grave cause, for instance because the other party refuses to confess, it can be omitted.

A determinate form by which the fulmination is made is not required. If, however, someone grants a dispensation by power delegated from the Apostolic See, he should make express mention of the pontifical indult (canon 1057).

c) After the dispensation has been fulminated, if mention is made in the document concerning legitimation, legitimation of the offspring follows; this can be made in any form. Fittingly one of these forms, taken from Benedict XIV, is used for fulmination and legitimation.⁹

For a marriage to be contracted: After the customary form of absolution, the confessor can proceed thus: "And besides, by Apostolic Authority, or by the authority of the Most Reverend Bishop N., specially delegated to me, I dispense with you over the impediment, which he here expresses, for example, of the second degree of affinity, so that, notwithstanding the aforesaid impediment, you may licitly be able to contract marriage publicly with the woman whom you intend to marry, the ecclesiastical form having been observed, to consummate it, and to remain in it; and by the same Apostolic Authority I declare the offspring already received, if there is any, and to be received from this union legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen."

For convalidating a marriage already contracted (n. 829 sq.): "Besides, by Apostolic Authority, or by the authority of the Most Reverend Bishop N., specially delegated to me, I dispense with you over the impediment... by which, being bound, you contracted marriage nullly, so that, notwithstanding the aforesaid impediment, you may licitly be able to contract marriage anew with your putative spouse, consent being renewed, to consummate it, and to remain in it; and I declare the offspring already received and to be received from this union legitimate. In the name," etc.

For a marriage to be healed in the root (n. 833): "Besides, by Apostolic Authority, etc.... I heal in its root the marriage contracted by you with N., and I declare the offspring already received and to be received from this union legitimate. In the name," etc.

d) After the fulmination has been completed, these things are to be observed:

a) Rescripts of dispensations granted for the external forum should be deposited in the diocesan archive (cf. canon 375, § 1), and the executory letters in the parochial archive.

b) Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum over an occult impediment should be noted in the book to be carefully kept in the secret archive of the Curia, of which canon 379 treats; nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been granted only in the sacramental internal forum (canon 1047).

c) Rescripts by which a dispensation has been granted for the sacramental internal forum are to be torn up or burned, and this according to the rescripts of the Sacred Penitentiary "under latae sententiae excommunication." The obligation must be fulfilled at least within three days after the execution of the dispensation (St. Alphonsus VI, 1143). Nevertheless, the confessor is not prohibited from retaining a transcribed text; in that case he should omit the day and year.

¹ Cf. Sacred Penitentiary, April 27, 1886; Holy Office, August 28, 1895.

² Cf. Aertnys-Damen II, n. 802 sq.

³ Sacred Penitentiary, April 27, 1886.

⁴ Cf. Pontifical Commission, June 2-3, 1918 (A.A.S. 1918, p. 346).

⁵ Sacred Congregation of Propaganda Fide, January 6, 1797 (collection, n. 633); December 18, 1878; Sacred Penitentiary, May 19, 1834; January 4, 1839.

⁶ Sacred Penitentiary, April 8, 1890.

⁷ Sacred Penitentiary, November 15, 1778.

⁸ Response of the Sacred Penitentiary cited.

⁹ Benedict XIV, Institutiones ecclesiasticae 87, n. 81.