Article XI. Public Honesty

I. Notion. Public honesty is a certain relationship arising from an invalid marriage, whether consummated or not, and from public or notorious concubinage, between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man (canon 1078).¹ It is said:

1. From an invalid marriage, i.e., invalid in any way whatever, whether from a diriment impediment, from defect of legitimate form, or, as it seems, from defect of consent. The reason is that the canon does not distinguish. I said, however, "as it seems" with regard to defect of consent, because the old legislation, according to which a marriage invalid because of defect of consent did not introduce the impediment, gives some persons a reason for doubting.

A merely civil marriage, independently of cohabitation, does not suffice,² because in the mind of the Church it lacks even the appearance of marriage.³ If cohabitation is added, the impediment arises insofar as public or notorious concubinage is added. To what extent this is added will be clear from what must now be said.

2. From public or notorious concubinage. Merely presumed concubinage (cf. canon 133, § 4) does not suffice; nor does occult concubinage. Moreover, note:

a) Concubinage is understood as a relation after the manner of marriage between a man and a woman. Moreover, for concubinage there are required:

Alpha) A permanent or stable relation. For this it certainly suffices if they cohabit; likewise if the woman lives at the man's expense and in a place where he can easily approach her; likewise between two persons between whom intercourse is so frequent and exclusive that it is equivalent to the case just assigned. It does not suffice if the intercourse, however frequent, is not exclusive on the woman's part (a prostitute); nor does carnal intercourse suffice if it is indeed protracted for a long time, but is exercised only from time to time.

Beta) A relation bearing the appearance of a conjugal relation; such a relation exists, for example, in those who have entered what is called a friendly marriage.

Gamma) It is disputed whether carnal intercourse is required or not. But the negative opinion seems to be admitted, and to be drawn from analogy with an invalid marriage, in which abstraction is also made from copula; likewise from comparison with the impediment of affinity, which arises from true marriage as such.⁴

b) Concubinage is public if it has been divulged, or if it has happened or exists in such circumstances that it can and ought prudently to be judged that it will easily be divulged (canon 2197, 1°).

c) Concubinage is notorious by notoriety of law after the sentence of a competent judge which has passed into a thing adjudged, or if the guilty party has confessed it in writing or orally before a competent judge, whether spontaneously or when questioned by the judge (canon 2197, 2°). Concubinage is notorious by notoriety of fact if it is publicly known and was committed in such circumstances that it can be concealed by no tergiversation and excused by no support of law.

Note. This impediment is called that of public honesty because it accords with public honesty; indeed, it is less decent for a man to contract nuptials with the blood-relatives of the other party with whom he contracted a marriage, even though invalid, or lived in public concubinage.

II. Line and degree of public honesty. That relationship is computed in such a way that those who are blood-relatives of the man are, in the same line and degree, relatives of the woman, and vice versa.

III. Existence and scope of the impediment. Public honesty diriments nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and vice versa (canon 1078). Thus, for example, a man cannot contract with the mother or grandmother, nor with the daughter or granddaughter, of a woman with whom he lived in an invalid marriage or in public concubinage.

IV. Multiplication of the impediment. Although the Code is silent concerning the multiplication of this impediment, just as it is silent concerning the multiplication of the impediment of crime, nevertheless it seems that multiplication must be admitted when the titles are multiplied, i.e., marriage or concubinage. Suppose, for example, that Peter lived successively in public concubinage with Anna and Mary, daughters of Christina; the impediment of public honesty between Peter and Christina is multiplied.

V. Dispensation of the impediment. Public honesty in the second degree is an impediment of lesser degree; otherwise it is of greater degree, and therefore dispensation from the impediment is more difficult.

Corollary I. The impediment persists even if the invalid marriage or public or notorious concubinage has ceased.⁵

Corollary II. When an invalid marriage has been convalidated, and likewise when concubinage has been turned into marriage, the impediment of affinity is added, while the impediment of public honesty also, more probably, persists;⁶ nevertheless in practice, since it is inferior to affinity, it is to be less attended to.⁷

¹ Before the Code of Canon Law, public honesty arose from betrothals and from ratified marriage. Having arisen from betrothals, it dirimented marriage in the first degree of each line; from ratified marriage, up to the fourth degree inclusive of each line.

² Pontifical Commission, March 12, 1929, ad 2 (A.A.S. 1929, p. 170).

³ Cf. Sacred Congregation of the Council, March 13, 1879 (A.S.S. XII, p. 147; XIII, p. 126).

⁴ Cf. Mulders in Nederlandsche Katholieke Stemmen 1927, p. 181.

⁵ Sacred Congregation of the Council, July 6, 1658; December 3, 1667; February 28, 1885.

⁶ Sacred Congregation of the Council in the Brixiensis case, December 3, 1667.

⁷ Cf. Mulders, in Nederlandsche Katholieke Stemmen, 1927, p. 183.

Corollary III. Insofar as the impediment of public honesty arises from an invalid marriage or concubinage of infidels, it is determined by the following:

1° The impediment does not arise from the marriage or concubinage of two non-baptized persons, because "those who have not received baptism are not bound by merely ecclesiastical laws" (canon 12). But it does arise if the invalid marriage or concubinage endures after the baptism of each party. It is disputed among authors whether the impediment arises if each is baptized after the invalid marriage or concubinage has ceased.¹ But while a public doubt stands, at least by force of canon 15 the impediment can be held as not having arisen.

2° The impediment arises from the marriage or concubinage of a party baptized either from the beginning of the union, or while the union still endures, with a non-baptized party. Thus authors teach almost commonly, relying on this principle: that a disposition directly affecting the baptized party also indirectly affects the non-baptized party, unless the contrary is expressly established. There is added the fact that the Sacred Congregation of Propaganda so declared concerning the impediment of crime.²

Note that in order that a marriage to be contracted be dirimented in fact, it is required that at least one of those who enter the marriage be subject to the Church through Baptism. Hence it is rightly established: the impediment of public honesty:

a) Directly diriments the marriage of a baptized party with a person blood-related in the first or second degree of the direct line to the other non-baptized party, whether that blood-related person is baptized or is not baptized.

b) Indirectly diriments the marriage of a non-baptized party with a baptized person blood-related to the other baptized party.

c) It does not diriment the marriage of a non-baptized party with a non-baptized person blood-related to the other baptized party; for in that case neither of the contracting parties is subject to the Church.³

¹ Cf. Mulders, loc. cit.

² August 23, 1852 (Collectanea, n. 1079).

³ Mulders, loc. cit.