Scholion. On Legitimacy and Matters Akin to It

We shall speak of legitimacy, of legitimate children, of illegitimate children, and of legitimation.

I. Legitimacy is the quality of legitimate or legitimated offspring, which produces certain determinate effects to be set forth later.

II. Legitimate children. With natural law considered, legitimate children are those conceived from a valid marriage. But with canon law considered, legitimate children are, with the things to be excepted excepted:

1. Those conceived from a valid or putative marriage.¹ It is said from a marriage, that is, from a mother joined in marriage and from the man to whom she is joined in marriage (canon 1114).

2. Those born from a valid or putative marriage, even if the parents at the time of conception had not yet entered marriage.

3. Those carried in the womb while there is a marriage between the pregnant woman and the father of the offspring, even if conception had place before the marriage, and the father or mother dies before the birth of the offspring, so that the offspring was neither conceived nor born from marriage. The aforesaid are to be called legitimate because of parity of reason, or, if you prefer, because of the formal equality of this case with the case of offspring merely born from marriage; hence canon 1114 is judged to comprehend them also.

I said with the things to be excepted excepted, because those are illegitimate who were conceived or born from a valid or putative marriage of parents for whom, because of solemn profession or a sacred Order received, the use of a previously contracted marriage was prohibited at the time of conception (canon 1114). Note: previously contracted; hence offspring born from a marriage entered between one bound by solemn vow and another, but with a dispensation, even if perhaps conceived before the marriage, is not illegitimate, because it is not a question of a marriage contracted before the vow. Moreover note:

a) Those conceived or born in marriage, that is, from a mother joined in marriage, are held to have been conceived or born from marriage, that is, from the mother and from the man to whom she is joined in marriage, and therefore are held as legitimate, unless the contrary is proved by evident arguments (canon 1115, § 1). This is proved, for example, by showing that intercourse did not have place during the time useful for conception, that is, from the 300th day to the 180th day before birth,² for example because of illness or because of absence. The declaration of the man or of the woman, even if confirmed by oath, does not suffice. I said: they are held as legitimate, but not of themselves from an ordinary presumption of law, since this is restricted only to some. Namely:

b) Those conceived or born in marriage are presumed to have been conceived or born from marriage, and consequently are presumed legitimate, if they were born at least after six months from the day the marriage was celebrated, or within ten months from the day conjugal life was dissolved (canon 1115, § 2). If a child is born within six months from the day conjugal life was dissolved, and the man at once denied that the offspring born was his, and other things also support the truth of the assertion, the presumption favors the man, and the burden of proving that he, that is, the man, is the father, rests on the other party.

c) In doubt whether offspring was conceived or born in marriage, for example exposed children, it seems that the offspring must be held legitimate; since it seems it must be held as conceived and born in marriage, and likewise from marriage, because a delict is not presumed; this being supposed, it must also be held legitimate unless the contrary is proved.

¹ An invalid marriage is called putative if it was celebrated in good faith by at least one party, until each party becomes certain of its nullity (canon 1015, § 4). It is disputed whether a marriage invalid because of defect of form can ever be held as putative.

² The useful time is computed in this way because birth commonly has place between 180 and 300 days after conception.

III. Illegitimate children. 1. Notion. Illegitimate children are: 1° those who were neither conceived nor born from a valid or putative marriage, nor carried in the womb while there was a marriage between the pregnant woman and the father of the offspring; 2° those conceived or born from a valid or putative marriage of parents for whom, because of solemn profession or because an Order had been received, the use of the previously contracted marriage was prohibited at the time of conception.

2. Division. Illegitimate children are distinguished into natural and spurious. Natural children are those who were procreated by parents who at the time either of conception or of birth or in the interval between the two could have been joined by valid marriage; moreover it suffices that they could have been so joined through a dispensation obtained.

Spurious children are those who were procreated by parents who, because of a diriment impediment not removed during the whole time from conception up to birth, could not have contracted valid marriage with each other.

Spurious children are subdivided into adulterine, sacrilegious, incestuous, nefarious, and simply spurious. Adulterine children are those born from adultery; sacrilegious, those born from a solemnly professed man or woman, or from a cleric constituted in sacred orders; incestuous, those born from consanguineous or affinal relatives in the prohibited degrees; nefarious, those procreated from consanguineous persons in the direct line. The rest are called simply spurious.

3. The effects of illegitimacy are:

a) Illegitimate persons are irregular by defect (canon 984, 1°), and therefore can licitly receive neither orders, whether major or minor, nor tonsure, and they are prohibited from exercising orders received (canon 968); hence they also cannot be admitted by the Ordinary into the seminary (canon 1363, § 1).

b) Illegitimate persons are kept from the Cardinalate (canon 232, § 2, 1°), from the Episcopate (canon 331, § 1, 1°), from the office of Abbot or Prelate nullius (canon 320, § 2), or from the office of major Superior in religious institutes (canon 504; cf. canon 488, 8°).

c) Illegitimate persons destined for the priesthood, as being irregular, cannot be admitted to the novitiate (canon 542, 2°).

¹ Cf. Schmitz, Die Stellung der unehelichen Kinder im geltenden kanonischen Recht; Mulders in Ned. Kath. Stemmen, 1931, p. 15 sq. and p. 33 sq.

IV. Legitimation. 1. Modes of legitimating. Legitimation is made, or can be made, as follows:

a) Through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even if not consummated, offspring is made legitimate, provided the parents were able to contract marriage with each other at the time of conception, or of pregnancy, or of birth (canon 1116), in other words, natural offspring is made legitimate. Therefore observe that offspring is also legitimated if a parent, after another marriage, contracts nuptials with the other parent of the offspring. Nevertheless, it is required that each be a parent of the offspring; but the consent of the offspring is not demanded; indeed legitimation would have place even if the offspring itself opposed its legitimation.

b) Through a dispensation granted over a diriment impediment, whether from ordinary power or from delegated power through a general indult, simply spurious and incestuous offspring is legitimated by that very fact, if any has already been born or conceived; it is not legitimated through a dispensation granted from delegated power through a rescript in particular cases (canon 1051). It is said:

alpha) Through a dispensation granted either from ordinary power or from delegated power through a general indult. The case obtains if the Holy See dispenses in gracious form, that is, without an executor; likewise if the Ordinary dispenses by force of canon 1043 or canon 1045, or of quinquennial faculties; likewise if the pastor dispenses by force of canon 1044 or canon 1045, § 3; likewise if the Holy See indeed dispenses in commissorial form, but with a necessary executor required, because then the Holy See itself also dispenses (vol. I, n. 209). In the case, however, with the formulas which the Sacred Congregation of the Sacraments uses being considered, it is imposed on the executor that he "decree and declare the offspring legitimate."

beta) Simply spurious and incestuous offspring is legitimated. Adulterine and sacrilegious offspring are excepted; nefarious offspring is not legitimated, because in such a marriage a dispensation is not granted.

gamma) If any has already been born or conceived: understand, as is clear, offspring which is truly illegitimate. Hence by offspring already conceived is to be understood offspring already conceived, but neither born nor carried in the womb after the marriage with dispensation was contracted or convalidated; for if it is born, or at least carried in the womb, after the marriage so contracted or convalidated, the offspring is legitimate, and therefore is not legitimated. But by dispensation there is legitimated offspring born before the dispensation; likewise offspring born after the dispensation but before marriage, whether this marriage is afterwards contracted, or is not contracted because of death, or, so others say, because of a cause independent of the will of the petitioners, or, so others say, for any cause whatever. The obvious sense of the law, which declares that offspring is legitimated by dispensation from the impediment, favors the last opinion.

delta) It is not legitimated through a dispensation granted from delegated power through a rescript in particular cases; this obtains, for example, if the Holy See dispenses in commissorial form with a voluntary executor required. For then the executor is delegated to dispense through a particular rescript.

Corollary I. If a diriment impediment to marriage is removed without dispensation, for example by the passage of time if the impediment of age was standing in the way, offspring is not legitimated by the very fact that the marriage is convalidated; rather there is need of a special rescript.¹

Corollary II. Where marriage is sanated in the root, illegitimate offspring is legitimated by force of the sanated marriage, if it is a question of natural offspring; by force of the dispensation which sanation in the root carries with it, if there is question of simply spurious or incestuous offspring.

c) Through a special rescript of the Holy See any illegitimate offspring can be legitimated. A rescript of this kind is granted for the external forum by the Sacred Congregation of the Sacraments or, if one party is non-Catholic, by the Holy Office; for the internal forum, by the Sacred Penitentiary.

2. Effects of legitimation. a) Children legitimated through subsequent marriage, as regards canonical effects, are in all things equated with legitimate children, unless something else has been expressly provided (canon 1117). Now it has been expressly provided that children, even if they have been legitimated through subsequent marriage, are kept from the Cardinalate (canon 232, § 2, 1°), from the Episcopate, and from the dignity of Abbot or Prelate nullius (canons 331, § 1, 1°; 320, § 2).

b) Children legitimated through dispensation or through a special rescript of the Holy See seem to be equated in all things with legitimate children, unless something else has been provided by common law or in the grant of the dispensation or in the special rescript. Now by common law it has been provided that children legitimated through dispensation or through a special rescript are kept from the Cardinalate, from the Episcopate, and from the dignity of Abbot or Prelate nullius (canon 331, § 1, 1°; canon 320, § 2). This must be deduced from the fact that canon 331, § 1, 1° declares: "legitimated even through subsequent marriage"; hence a fortiori if a son has been legitimated in another way.

c) If an illegitimate person is legitimated through sanation in the root, all effects of illegitimacy are removed, unless something else has been provided in the written grant. For sanation in the root carries with it, by a fiction of law, that the marriage is judged to have been valid from the beginning, as regards canonical effects (canon 1138), one of which certainly is the legitimacy of offspring. Hence those legitimated in this way are not of themselves kept even from the Cardinalate, the Episcopate, and the dignity of Abbot or Prelate nullius.

Note 1. Particular effects of illegitimacy, for example irregularity in relation to receiving Orders, can also be removed through dispensation. Besides, some particular effects are also removed in another way: thus, for example, irregularity for receiving Orders is also removed through solemn religious profession, but not inability, for example, for the office of major Superior (canon 504).

Note 2. It is very expedient that the legitimation of offspring and the mode by which this has been granted be noted by the pastor in the baptismal book, and therefore be signified to the respective pastor by the one who has obtained the legitimation.

¹ Pontifical Commission, December 6 (A.A.S. 1931, p. 25).