Section IV. On the Dissolution of Betrothals

Preliminary note. Of the causes for dissolving betrothals, some by their own force dissolve or extinguish them; others furnish to both parties, or to one party, the right of dissolving or rescinding them. In addition, the causes have force even if the betrothals have been confirmed by oath. They are:

I. Mutual consent, sufficiently free from error, fraud, and fear (St. Alphonsus VI, 855, 856).

II. A notable defect pre-existing the betrothals and afterwards detected; likewise a notable change supervening upon the betrothals, which render matrimony more burdensome, and, if they had been known or foreseen, would have deterred from the betrothals. The reason is drawn from this, that betrothals, as ordered to matrimony, which carries with it a perpetual society of life, are judged to have been contracted under the condition: "provided the matter is as it appears, and is not changed for the worse"; or at least with the right retained of dissolving them if the aforesaid condition is not fulfilled (St. Thomas, Supplement, q. 43, a. 3, ad 3; St. Alphonsus VI, 86). Indeed, even a prudent and persistent suspicion of a notable defect or change suffices, because it is a grave inconvenience to contract with such a suspicion.

In the cases set forth, the dissolution of betrothals can be made by one party or by both, according as one or both would suffer inconvenience if, notwithstanding the change, matrimony were contracted. Commonly, however, the inconvenience will not follow for the party who has suffered the change, but for the other alone.

The defect and change can concern goods: 1° of the body, as if there is detected or supervenes a grave and incurable disease, or stinking breath, notable deformity, loss of sight or hearing, etc.; 2° of the soul, as if the bridegroom is detected to be, or becomes, irreligious, drunken, a gambler, prodigal, harsh in morals, etc.; 3° of fortune, as if the bridegroom or bride is detected to be, or becomes, poor, or is frustrated of a great inheritance or expected lucrative office, etc. And these things indeed are admitted by all, because in the cases set forth the detected defect and the supervening change render matrimony more burdensome. But:

It is disputed whether a notable supervening change furnishes the right of withdrawing when, if it had been foreseen, it indeed would have impeded the betrothals, but nevertheless does not render matrimony more burdensome; for example, if an unexpected and rich inheritance comes to someone. Now a sufficiently probable opinion affirms, because each person is presumed to have contracted betrothals under the condition: "provided no notable change supervenes." Add that, according to common estimation, the neglect of great gain is equated with grave damage; and this being posited, from the acceptance of men the change of which we speak is morally the same as that which renders matrimony more difficult. Finally, in the case in which a rich inheritance comes to someone, there enters a disparity of condition, which, as will be said under III, involves a cause for dissolving betrothals. St. Alphonsus would not indeed praise, but neither would he condemn, the one who, when marriage with an exceedingly better bride has been offered, should choose this bride (VI, 876).

Note. A party laboring under an occult defect is bound to manifest this to the other party before the betrothals or, once the betrothals have been contracted, before the nuptials, as follows: 1° "If the defect would render the nuptials pernicious, as if it were infamy, leprosy, the French disease, or another contagious disease, he is bound to manifest it or to withdraw from the nuptials, unless the other party labors under the same defect. The reason is that, just as one sins against justice who sells harmful merchandise to another who believes it good, so a fortiori one does who wishes to contract matrimony with a pernicious defect. 2° But if the defect would not render the nuptials harmful, but only less desirable, namely if the bride were poor though she is thought rich, ignoble though noble, deformed though beautiful, corrupted though a virgin, then, although she herself cannot deceive the man by pretending that she is immune from such a defect, nevertheless she is not bound to manifest the defect; but even when questioned she can dissemble by answering equivocally" (St. Alphonsus VI, 864-865). Thus custom has it. If, however, there is grave danger that the defect may afterwards be detected and provoke grave discords, it is to be advised that it be manifested (St. Alphonsus, ibid.).

Disparity of condition and the dissent of parents are partly referred to the cause set forth.

III. Disparity of condition, whether arising from disparity of status, or from nobility, or from disparity of fortune:

a) If it is so great that the matrimony is illicit because of dishonor to the family, the betrothals are null from the beginning.

b) If it is not so great, but nevertheless notable, the betrothals are valid and of themselves irrescindable, if the parties contracted them with knowledge of the disparity. If it is afterwards detected, or supervenes after the betrothals have been contracted, these can commonly be rescinded.

IV. The dissent of parents operates thus:

1. Due dissent, namely because the matrimony is illicit, argues that the betrothals were null from the beginning (St. Alphonsus III, 644; VI, 851, 877).

Here it is customary to ask whether a prodigal promise of matrimony as such, that is, one made to a bridegroom or bride of much inferior condition or fortune, but without dishonor to the family, is illicit and invalid, as being about an illicit thing. To this question we respond with St. Alphonsus (VI, 851): If no reason honors a promise of this kind, it regards a venially evil thing, and therefore is null. "Nevertheless, since the fault of prodigality is not more than venial, any middling just cause can remove the vice of prodigality. Hence the bridegroom who marries an unequal woman will be sufficiently excused if he knows in her some special prerogative, namely of providence, devotion, great honesty, or even of some natural endowment, on account of which the bridegroom judges that he will lead a quiet life with her. Hence it is inferred that scarcely can a case occur in which the bridegroom would not be bound to marry her, because very rarely will there be lacking some one of these causes which will excuse the fault of prodigality."

2. Reasonable dissent, although not due, will often be a reason why it is licit to rescind betrothals. Almost the same must be said about less reasonable and continuing dissent, so that hope of removing it is lacking; in which case children often will be able, especially if the dissent was not foreseen, to withdraw from the betrothals, namely on account of the inconveniences joined to their execution and the evils to be feared. Nevertheless, commonly they are not bound to this, the more so because, once matrimony has been contracted, the inconveniences not so rarely vanish.

V. Violation of fidelity furnishes to the innocent party the right of withdrawing, while the guilty party remains bound until the innocent party has used his or her right. To this are referred:

1. Courtship with a third person, or frequenting with a view to matrimony. A fortiori:

2. Betrothals attempted with a third person, or even a gratuitous promise of matrimony made to a third person.

3. Matrimony entered with a third person. Here, however, it is disputed whether by matrimony of this kind the betrothal obligation is extinguished on both sides, or whether for the unfaithful betrothed the obligation is only suspended, namely during the matrimony. Now with St. Alphonsus (VI, 875) and others, against many, it seems that one must say that for the unfaithful party the obligation is only suspended. The reason is that an obligation contracted, if an impediment is placed illegitimately, is not extinguished except by an impediment which by its nature is simply indissoluble. But matrimony is not by its nature simply indissoluble. Indeed, by its proper nature it cannot be dissolved by the authority of the spouses, but it can be dissolved in another way, for example by the death of a spouse. This is confirmed from the fact that matrimony does not extinguish, but only suspends, the obligation of a vow of religion, so that the one vowing, when the spouse has died, is bound to fulfill the vow (St. Alphonsus, ibid.).

Objection. In the case of a vow, the supervening bond is of a different nature, while the bond of matrimony is of the same nature as the bond of betrothals.

Response. This seems to make no difference; in other words, only this must be considered, whether or not the subsequent bond is by its nature simply indissoluble; because the nature of an obligation as such carries with it that it must always be fulfilled as long as it can be fulfilled. Hence if the subsequent bond is temporal, the obligation is only suspended.

4. Fornication; concerning which several things must be noted.

a) Antecedent fornication of the bride, afterwards detected, gives to the bridegroom the right of withdrawing; and this holds even if the bride was oppressed by force, because according to common estimation she is of less worth than she was thought to be. Antecedent fornication of the bridegroom, detected after the betrothals, confers on the bride the right of withdrawing: 1° if the bridegroom is detected to have acted thus frequently; 2° if he has received offspring from another; 3° if it is hard for the particular bride to marry a man who has fornicated even once (St. Alphonsus VI, 861). I said "for the particular bride"; namely, it must be considered in what manner the bride is to be judged to have contracted the betrothals. Now a bride to whom it matters little whether or not the bridegroom had previously fornicated is not judged to have entered betrothals under the condition: "provided the bridegroom is not detected to have committed fornication."

b) Subsequent fornication of either party gives to the other party the right of withdrawing. This holds even if the bride was oppressed by force, since according to common estimation she has been made of less worth, so that a notable change has supervened which renders matrimony more burdensome. If both parties have fornicated, the bridegroom, as is now commonly admitted, can withdraw. But it is disputed whether of itself the same is licit for the bride. Most of the older authors deny, relying on this reason: the fornication of the bride is judged both far more shameful and consequently also a graver delict than the fornication of the bridegroom, so that an uncompensated excess favors only the bridegroom. There are, however, those who judge that in many regions, according to common estimation, the bridegroom is rendered almost as contemptible by fornication as the bride, perhaps the lowest common populace excepted; and if this is admitted, the subsequent fornication of both also furnishes to the bride the right of withdrawing.

Corollary. The things said about fornication hold almost also for immodest touches with a third person, especially if they are more frequent or are done with several persons. Indeed, familiarity with a third person can be such that it furnishes to the other party the right of withdrawing, the more so because in this whole matter attention must also be given to a founded fear that fidelity may afterwards be violated. Finally, the aforesaid things are also to be applied to other graver crimes perpetrated by the bridegroom or bride, for example homicide, bestiality, heresy (St. Thomas, Supplement, q. 43, a. 3, ad 6; St. Alphonsus VI, 860).

5. The departure of either party into a distant region, from which return cannot be hoped for soon, if it happens while the other party is unaware or unwilling, gives to this party the right of marrying another. The reason is that the long expectation of some good involves a notable diminution of happiness (St. Alphonsus VI, 860).

6. Delay of matrimony produces these effects:

a) If the term is prefixed solely for urging the obligation, the party prepared can withdraw: 1° if the other party delays matrimony without a just cause, because by acting thus he or she violates fidelity; 2° if he or she delays justly, but with grave inconvenience to the prepared party, which can be prevented by withdrawing.

b) If the term is prefixed for ending the obligation: 1° if both parties have been at fault, each party is free, both because of the stipulation added to the contract and because each party seems to have yielded his or her right; 2° if neither party has been at fault, each seems free, namely with the stipulation added to the contract considered; 3° if one party has been at fault, certainly the other party is freed; but it is disputed whether the prior party also is free if the other urges matrimony. Now commonly it seems to have to be denied, because no one is judged to have bound himself in such a way that the obligation ceases even if he himself is the cause why it was not fulfilled (St. Alphonsus VI, 867, 868).

The term is commonly prefixed for urging the obligation; yet sometimes the contrary can be drawn from the tenor or from the circumstances.

VI. Election of a more perfect state; concerning which both the liceity of choosing a more perfect state and the effect of the election made must be explained.

1. Liceity of choosing a more perfect state. Notwithstanding betrothals, it is licit to choose a more perfect state, as follows:

a) It is licit to choose the religious state. The reason is drawn from the fact that in betrothals there is a tacit condition: "Unless I shall have chosen the religious state"¹ (St. Alphonsus VI, 870, dub. 1). Likewise it is licit to emit a vow of choosing the religious state; for it is licit to vow what it is licit to perform.

b) It is disputed whether it is licit: 1° to choose the clerical state; 2° to emit a private vow of perpetual chastity. It is affirmed with sufficient probability, because there is probably in betrothals the tacit condition: "Unless I shall have chosen a more perfect state" (St. Alphonsus VI, 873). It is illicit to choose mere celibacy without a vow of perpetual chastity; for one who has promised matrimony is not judged to have retained the right of not marrying.

Furthermore, the election, of itself licit, of a more perfect state is illicit: 1° if someone obtained intercourse under the promise of matrimony; 2° if someone is bound to repair damage which can be repaired by matrimony alone; 3° if someone does not proceed sincerely, namely from desire of a more perfect state, but fraudulently, for example so that he or she may be freed from the betrothals and, after obtaining a dispensation, may marry another (St. Alphonsus VI, 873; III, 649).

2. Effects of the election made. a) The election of any more perfect state, even of mere celibacy, frees the other party; both because the one choosing the more perfect state renounces the betrothals, and because, when one party withdraws voluntarily, the other party by that very fact recovers liberty (St. Alphonsus VI, 873).

b) Religious profession itself and the reception itself of major Order extinguish the betrothals, or free both parties. The reason is that they constitute a state which cannot be composed with the execution of the betrothals and is of itself perpetual. It is disputed whether the same effects are produced, or whether for the receding party they only suspend the obligation, by: 1° the emission of a vow of chastity to be observed perpetually in the world; 2° mere entrance into Religion; 3° mere entrance into a seminary; 4° reception of minor Order; 5° vows alone of entering Religion, or of embracing major Order, or of emitting a private vow of perpetual chastity. Nevertheless it seems one must say that at least entrance into Religion or a seminary, likewise the reception of minor Order and vows alone of entering Religion, of receiving Sacred Orders, or of emitting a vow of chastity, only suspend the betrothals for the one entering or vowing, because through those things a state of itself perpetual is not yet undertaken (St. Alphonsus VI, 870-873).

¹ Cf. chapters 2 and 7, De conversione coniugatorum.

VII. A supervening diriment impediment. 1. If an indispensable and perpetual impediment supervenes, that is, one in which a dispensation cannot be given or hoped for, for example impotence, the betrothals fall for both parties. Nevertheless the party who, conscious that the impediment would arise, caused it, must compensate the damage that will follow for the other party.

2. If an impediment supervenes which indeed is indispensable but temporal, namely the impediment of bond, the betrothals are dissolved for the party to whom fidelity has been violated; for the other party they are more probably only suspended, as was said in n. 677. Meanwhile this party is bound to reparation of the damage inflicted on the other party.

3. If a dispensable impediment supervenes, the party who did not induce the impediment is freed. The party who gave cause to the impediment, if indeed he or she acted conscious that the impediment would arise, must procure a dispensation, even with grave inconvenience; but if he or she was ignorant of the impediment, after the manner of an inculpable debtor from contract, more probably he or she is bound to ask for a dispensation if it can conveniently be obtained; indeed even with grave inconvenience, if the damage of defloration must be repaired or infamy prevented (St. Alphonsus VI, 857, 858).

Concerning a supervening prohibitive impediment, for example a vow, etc., enough has been said in n. 678.

VIII. Founded fear that the matrimony will be unhappy. For no one is judged to have bound himself to a burden of this kind.¹

¹ Austrian Instruction, February 2, 1856.

IX. Dispensation can be granted by the Supreme Pontiff, as is clear both from the fact that he can dissolve the firmer bond of ratified matrimony (canon 1119), and from the practice of the Holy See. Inferior Prelates lack this power; nevertheless, when the cause has been examined and is manifest, they can declare or judge that betrothals are invalid, dissolved, or rescindable. For dispensation a just cause is required; and in general this can be said to be present if from the dispensation greater goods are foreseen than from the execution of the betrothals.

Note. One who without a just cause withdraws, or unjustly has introduced a cause for withdrawing, is bound to compensate damage arising from his or her unjust action; but not the gain to which the other party would have acquired a right only after the nuptials had been contracted.