Chapter I. On Impediments in General

I. Notion. An impediment, taken in the broader sense, is a circumstance which prevents marriage from being able to be contracted licitly or even validly. In the strict sense, it is a circumstance which prevents this by law, not by mere precept. A particular precept or prohibition can indeed render someone's marriage illicit, but it is not called an impediment in Canon Law (cf. canon 1039, § 1 and 2).

II. Division. Impediments are divided:

1. By reason of cause, into impediments of divine law and of human law, and of the latter either ecclesiastical or civil.

2. By reason of extent, into absolute and relative, according as they prevent marriage with any person whatever or only with certain persons. Of the former kind are, for example, bond, age, etc.; of the latter kind are, for example, consanguinity, affinity, etc.

3. By reason of effect, into impedient and diriment. An impedient impediment contains a grave prohibition of contracting marriage; nevertheless the marriage is not rendered invalid if, notwithstanding the impediment, it is contracted (canon 1036, § 1). A diriment impediment both gravely prohibits a marriage to be contracted and prevents it from being contracted validly (canon 1036, § 2). Although the impediment is present only on one side, nevertheless it renders the marriage either illicit or invalid (canon 1036, § 3).

4. By reason of duration, into temporary and perpetual. The former are those which cease by the passage of time, such as age; or at least can cease without dispensation, such as mixed religion. The latter are those which either cannot cease at all or cannot cease without dispensation, such as consanguinity.

5. By reason of demonstrability, into public and occult. An impediment is judged public if it can be proved in the external forum;¹ otherwise it is occult (canon 1037).

An impediment is called public by its nature insofar as it rests upon a fact which is public of itself; of this kind are, for example, the impediment of age, of legitimate consanguinity, etc. It is called public by fact insofar as the fact from which the impediment arises can be legitimately proved, or by prescription of law does not need proof. The word "fact" is used; but to the fact, if the discussion concerns a delict carrying an impediment with it, culpability also pertains; however, it is not required that it be known that an impediment arises from some fact.²

An impediment occult by its nature is an impediment which rests upon a fact occult of itself, of which kind are, for example, impotence, illegitimate consanguinity, etc. An impediment of this sort ought to be held as truly occult only when the fact cannot be legitimately proved.

6. By reason of the degree of knowledge, into certain and doubtful, according as prudent doubt is excluded or not excluded. A doubt can be a doubt of law only, or a doubt of fact only, or a doubt of law and fact. Besides this, a doubt of law can turn upon divine law, or human law, whether ecclesiastical or civil.

7. By reason of gravity, into impediments of the lesser degree and of the greater degree (canon 1042); of these we shall speak in their own place.

8. By reason of dispensation, into dispensable and indispensable, according as they are often or at least sometimes removed by the Church, or cannot be removed by her, or at least are scarcely ever taken away.

9. By reason of the forum in which dispensation is granted, at least of itself, into impediments of the external forum and of the internal forum. I said at least of itself, because in some circumstances impediments which pertain to the external forum can also be taken away in the internal forum, as will be explained in its own place.

¹ As regards proof, canon 1791 should be attended to: the deposition of one witness does not make full proof, unless he is a qualified witness who deposes concerning matters done by reason of office. If under the faith of an oath two or three persons, above every exception, firmly agreeing with one another, testify in court concerning some matter or fact from their own knowledge, sufficient proof is had; unless in some cause the judge, because of the very great gravity of the matter or because of indications which introduce some doubt concerning the truth of the matter asserted, judges fuller proof necessary (canon 1791).

² Pontifical Commission, June 25, 1932 (A.A.S. 1932, p. 284).

III. The subject to whom power concerning impediments belongs. 1. It belongs to the supreme ecclesiastical authority alone to declare authentically when divine law impedes or dirimently invalidates marriage (canon 1038, § 1).

2. The same supreme authority exclusively has the right to establish other impediments, impedient or diriment, for the baptized, by way of law, whether universal or particular (canon 1038, § 2).

Note. Local Ordinaries can forbid marriages in a particular case to all actually staying in their territory and to their subjects even outside the boundaries of their territory, but only for a time, from a just cause, and while that cause endures. Only the Apostolic See can add an invalidating clause to a prohibition (canon 1039). It says "from a just cause"; but just causes are: a founded suspicion of a diriment or impedient impediment; a founded fear that the marriage will give occasion to enmities, scandal, or other inconveniences, etc. (St. Alphonsus VI, 982). A pastor cannot forbid a marriage even in a particular case; but if the marriage is illicit, he can and must abstain from assistance and meanwhile refer the matter to the Ordinary.

3. Except the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impedient or diriment, or derogate from them; likewise no one can dispense in them unless this power has been granted by common law or by a special indult from the Apostolic See (canon 1040).¹ To what extent the power of dispensing has been granted to Ordinaries and priests by common law will be stated later (cf. canons 15, 1313, 1043-1045, 81).

Note. A custom introducing a new impediment or contrary to existing impediments is reprobated (canon 1041). Therefore: 1° if at present a custom contrary to existing impediments is in force, it is to be corrected as a corruption of law, and must not be permitted to revive in the future (canon 5); 2° if in the future a custom arises introducing a new impediment or contrary to existing impediments, it is not reasonable (canon 27, § 2), and therefore cannot obtain the force of law or abrogate impediments or derogate from them.

¹ Constitution of Pius VI Auctorem fidei, August 28, 1794 (props. 59, 60); Pius IX, Syllabus of Errors (prop. 58).

IV. The passive subject of impediments. 1. All human beings are bound by impediments of divine law, whether natural or positive.

2. As regards impediments of ecclesiastical law, these things hold:

a) In general, all baptized persons are bound by impediments of ecclesiastical law, even non-Catholics, as is clear from the Constitution of Benedict XIV Matrimonia and Singulari nobis; likewise from the practice of the Church in revalidating marriages entered by heretics in heresy with an impediment; finally from the fact that exemption is clear from no source, nor is it suggested by the Code of Canon Law; and this presses all the more because the Code expressly exempts non-Catholics from the form of marriage.

b) Infidels after Baptism are bound not only by impediments whose cause was placed after Baptism, which is clear, but also by those impediments whose cause was placed before Baptism, if the foundation of the impediment is a natural bond, such as consanguinity. Otherwise one must speak if the foundation is to be placed in the mind of the Church, as in the impediment of spiritual relationship. If the foundation of the impediment is a certain civil bond, as in legal relationship, the matter seems doubtful.

c) Those certainly but doubtfully validly baptized seem to be held by ecclesiastical impediments; this is deduced from the argument proposed in vol. I, n. 130. There is added a response of the Holy Office¹ which in its obvious sense favors this opinion, although others understand it of the presumption by which a baptism doubtfully valid is presumed to have been conferred duly.² If the fact of Baptism is doubtful, the question is solved with more difficulty (vol. I, n. 130).

Corollary I. A marriage between a faithful person bound by an ecclesiastical impediment and an infidel is illicit or invalid according as the impediment is impedient or diriment, because it is sufficient for the effect of the impediment that it be present on one side only (canon 1036, § 3).

Corollary II. A marriage between an infidel bound by a civil diriment impediment and a faithful person, according to several authors, is invalid even after dispensation in disparity of cult; for since one party is incapable, the reason given above holds. Nevertheless, the contrary opinion is not without foundation, according to what was said in n. 742.

¹ February 4, 1891 (Collectanea, n. 1746).

² Cf. Holy Office, July 14, 1880 (Collectanea, n. 1536).

V. Causes excusing from a diriment impediment. 1. Ignorance, even invincible, does not exempt from a diriment impediment. For canon 16, § 1 declares: "No ignorance of invalidating or incapacitating laws excuses from them, unless something else is expressly stated."¹ There had been dispute about an impediment of crime unknown to the person; but since nothing else is stated, every doubt has been removed.

2. Nor does grave inconvenience or necessity excuse from a diriment impediment. The reason is that the common good requires that invalidating laws retain their force, even if the invalidation is unknown or the act cannot be avoided without grave inconvenience (St. Alphonsus VI, 1079). Nevertheless, it is not clear that in an altogether extraordinary case there is no place for epikeia, for instance if, while the impediment of disparity of cult presses, the faithful in some region could not enter marriage.²

Question. To what extent is it licit to enter marriage with a doubtful diriment impediment?

Response 1. It is not licit if the matter concerns an impediment of divine law, whether natural or positive, whether the doubt is of law or of fact.³ The reason is that the matrimonial contract, since it is a sacred contract and, if it is entered by the faithful, is a sacrament, cannot be exposed to danger of nullity (St. Alphonsus VI, 902, q. 3). Therefore, for example, an infidel brother and sister, although they are not held by the impediment of consanguinity insofar as it is ecclesiastical, cannot enter marriage, because there is a doubt of law concerning the natural impediment; likewise even infidels are not permitted to enter nuptials in a doubt of fact, for example whether the parties are consanguineous in some degree of the direct line or in the first degree of the collateral line. There is added, as regards the faithful, that the said marriages are certainly opposed by a diriment impediment to marriage, from which dispensation is never given (canon 1076, § 3).⁴

The case of doubtful impotence is excepted, however, whether by doubt of law or by doubt of fact (canon 1068, § 2): by doubt of law, for example where organs are lacking which probably are required for a valid marriage; by doubt of fact, namely if it is not known whether copula between such persons is possible or not. The reason for the exception is that the theoretically probable right of marrying prevails over the reverence owed of itself to the matrimonial contract, or because the inconvenience of not marrying is so great that, in order to avoid it, it is licit to neglect the reverence owed of itself to the said contract (St. Alphonsus VI, 1102).

Response 2. If the matter concerns an impediment of ecclesiastical law, a distinction must be made.

1° In a doubt of law it is licit to contract: for "laws, even invalidating and incapacitating laws, do not oblige in a doubt of law" (canon 15). This certainly holds if there is common or fairly common doubt concerning the existence of the impediment. Whether the rule holds, "Whenever non-existence is probable, the impediment does not oblige," even though many deny the probability - whether that rule holds, I say, can seem doubtful to someone. The reason for doubting is taken from the fact that a rule of this kind would give occasion to invalid marriages; for there is danger lest many regard as probable what is not truly probable, and thus, being disposed in mind, permit marriage to be contracted without dispensation.⁵

2° In a doubt of fact it is not licit to contract, but dispensation must be sought, at least for caution. Otherwise the marriage is exposed to danger of nullity. But the Church grants to Ordinaries the faculty of dispensing in doubts of this kind, if the matter concerns impediments in which the Roman Pontiff is accustomed to dispense (canon 15); these things also hold, as is clear, if the matter concerns convalidating a marriage already contracted. If, however, the doubt turns upon Baptism, what will be said concerning disparity of cult should be attended to.

¹ Holy Office, July 4, 1855 (Collectanea, n. 1114); December 9, 1874 (Collectanea, n. 1427); February 4, 1891 (Collectanea, n. 1746).

² Cf. Holy Office, June 4, 1851 (Collectanea, n. 1062).

³ A doubt of law is one which regards the law itself of the impediment, for example whether this or that condition is required for inducing the impediment. A doubt of fact is one which regards the fact on which the rise of the impediment or its continuance depends.

⁴ Cf. Holy Office, April 6, 1906. If infidels have entered such a marriage, the fact stands; nor after conversion can an obligation of separation of itself be imposed. The Holy See, however, can permit new nuptials, either, if only one has been converted, by declaring liberty from the prior bond in favor of the faith, or by dispensing for caution from the bond contracted in infidelity, provided the marriage has not been consummated after the Baptism of both.

⁵ Thus, for example, some hold it as probable that the impediment of spiritual relationship between sponsor and baptized person does not arise from private Baptism. Thus many authors held as probable that the Constitution Provida persisted even after the Code of Canon Law; but it seems certain that marriages entered since the Code came into force according to the norm of the said Constitution are invalid.