Age

569. Nature of the Impediment. 1. The impediment of age consists in this, that a man before the completed sixteenth year of age and a woman before the completed fourteenth likewise cannot enter valid matrimony.¹

a. Although the new law requires a greater age for entering valid matrimony than the old law did, it can nevertheless happen that in some northern regions even at this age full natural puberty with proximate power of generating is not had. Therefore Cn. 1067, 2 warns: although matrimony contracted after the aforesaid age is valid, pastors of souls should nevertheless take care to turn young people away from it before the age at which matrimony is customarily entered according to the received customs of the region.

b. For a twofold reason, a greater age is required for the value of matrimony than of betrothals, because matrimony requires both greater maturity of judgment and also power of generating. For betrothals are a promissory contract concerning the future and by their nature rescindable; but matrimony is a contract of handing over concerning the present and indissoluble. Therefore in betrothals a lesser degree of knowledge suffices.²

2. This impediment dirimently impedes matrimony by ecclesiastical law, which is already clear from this, that now for valid matrimony a more mature age is required than formerly. Moreover, by natural law no age is required for valid contracting beyond sufficient use of reason.

3. Because this impediment is of ecclesiastical law, the supreme pontiff per se can dispense in it, and in reality has sometimes dispensed from a most grave cause. But because dispensation is granted most rarely, this impediment is numbered among those in which dispensation is not customary.

Since the impediment of age regards a twofold defect, sufficient discretion and actual power of generating, and since the former is of natural law, it is clear that the supreme pontiff can dispense only in the latter.

¹ Cn. 1067, 1.

² Cf. Wernz, n. 314, note 30.

570. Declaration. By natural law, for validly contracting, nothing is required except perfect use of reason, so that there is full knowledge of the right and obligation which are assumed by contracting, although use of the matrimonial right is not yet possible. But because it is not fitting that matrimony be contracted before the spouses are apt for the use of matrimony, the Church wisely determined the age at which this aptitude can be presumed from things commonly happening. But the determination of age must be understood strictly, so that the matrimony is null even if only a few days were lacking for the due age, indeed if the last day had not yet been completed.

a. In our regions it scarcely happens that those below puberty contract matrimony; but in regions of infidels marriages of those below puberty are most frequent, and these among the infidels themselves, unless another impediment stands opposed, must indeed be held valid.

b. If the betrothed intend to enter matrimony before the canonical age, the parish priest must refer the matter to the bishop, to whom it pertains to declare whether there is really present in the betrothed the capability which is required, namely prudence and power of generating; but the bishop cannot dispense, not even in a case of doubt.¹

¹ Benedict XIV, constitution Magnae nobis.

Males under sixteen years of age and females under fourteen are presumed not to have that maturity of judgement which is requisite for entering the married state. The Church has made them incapable of marrying by requiring the age of sixteen complete in males and fourteen complete in females for the validity of marriage (Can. 1067). The age of puberty varies according to race.and climate; in northern latitudes it is not reached till the age of about fifteen in girls and seventeen or eighteen in boys. Even though the parties may not yet be capable of having children, they may marry validly if they are of the age required by the Church, though it is desirable not to marry before full maturity. Those who are not baptized are not subject to the ecclesiastical impediment of age, but in this matter English law agrees with the old canon law, which fixed the age of valid marriage at fourteen and twelve respectively,

I. By natural law a determinate age is not required for the validity of marriage, but it suffices that someone has arrived at the use of reason, knows the nature of marriage sufficiently, and will have the power of coeundi in due time (St. Alphonsus VI).

II. By canon law, "a man before the completion of the sixteenth year of age, and a woman likewise before the completion of the fourteenth, cannot enter a valid marriage" (canon 1067, § 1). Years are to be taken as they are in the calendar; and since the terminus a quo is judged by law not to coincide with the beginning of the day, the first day is not to be counted, and the time is ended when the last day of the same number has been completed (canon 34, § 3).

But the impediment was established by the Church because she presumes that before the indicated years of age there is lacking at least the more mature discretion with which it is fitting to enter nuptials.

Corollary I. One who has attained the assigned age contracts validly, even if he or she does not yet have actual power for copula; by natural law the power which will be present in due time suffices. But the use of marriage is prohibited until each party has obtained actual power of coeundi, or at least there is hope of coeundi duly (St. Alphonsus, loc. cit.).

Corollary II. In doubt concerning age - which easily occurs in Mission regions - recourse should be had to the Ordinary, who can dispense in a doubt of fact. Sometimes the missionaries themselves receive the faculty of dispensing.

Corollary III. Although a marriage contracted after the aforesaid age is valid, nevertheless pastors of souls should take care to turn youths away from it before the age at which, according to the received customs of the region, marriage is usually entered (canon 1067, § 2). Therefore in colder regions it is rarely expedient that a young man contract nuptials before the twentieth year of age, or a girl before the eighteenth; indeed it is preferable to wait for the age of mature nubility, everywhere between the twentieth and twenty-fourth year, because otherwise spouses can harm themselves and their offspring. Once mature nubility has been obtained, one must of itself abstain from excessive delay of nuptials.

835. • The impediment of age consists in a defect of age sufficient for fulfilling the duties of matrimony. It invalidates the matrimony of the prepubescent by ecclesiastical law ¹, as is gathered from chapters 7, 10, and 14, On the Betrothals of the Prepubescent, etc.

¹ That puberty is required only by ecclesiastical law is the common doctrine with St. Thomas (In IV Sentences, distinction 36, question 1, article 5). The reason is that, by the law of nature, beyond consent nothing more is required for the contract of matrimony than bodies capable of it, even if they are not proximately capable. Hence it follows that the marriages of prepubescent persons who have the use of reason are valid among unbelievers, who are not subject to the laws of the Church, unless they are prohibited and invalidated among them by a special law. See Schmalzgrueber, book 4, title 2, nos. 48-49.

It likewise follows from this that the Pontiff, for the good of peace or another just cause, can dispense even with the faithful so that they may contract matrimony below the years of puberty. This is also established by the authority of Nicholas I, chapter Ubi non est 2, On the Betrothals of the Prepubescent, and is confirmed by examples of dispensations of this kind which St. Pius V, Clement VIII, and Gregory XV granted. See Schmalzgrueber, l.c., nos. 50-52, who nevertheless skillfully gives the reason why cohabitation must not be permitted before puberty. Indeed, Reiffenstuel (book 4, title 2, no. 11), with Barbosa, Gonzalez, Suarez, and others, teaches as sufficiently probable that even a Bishop can dispense for a most urgent, especially public, cause, for example, for the good of peace, especially if the contracting parties are near the years of puberty and it is doubtful whether bodily maturity supplies for age, concerning which you have various opinions of the Doctors in St. Alphonsus, book 6, no. 1065.

Puberty, moreover, is attained according to Canon law for females when the twelfth year has been completed, and for males when the fourteenth year has been completed ².

² The reason for the differing age for females and males is taken from the fact that the power of generation is accustomed both to begin and to cease earlier in females than in males, as Gonzalez, on chapter 3, On the Betrothals of the Prepubescent, Reiffenstuel, same title, no. 3, and Schmalzgrueber, same title, nos. 45-47, note.

Nevertheless, this is excepted in the law: provided that bodily maturity does not supply for age. This is understood of those prepubescent by age who are already mature in bodily powers, or capable of generation, and who otherwise can sufficiently understand the burden of the conjugal bond ³.

³ Since matrimony is valid by the natural law even though the contracting parties are not yet proximately capable of the conjugal act, as was said above, and ecclesiastical law requires nothing except the completion of that established age, there is no reason why a matrimony could be considered invalid if the legitimate age is indeed present, but the man cannot yet carnally unite with the woman or beget. What is to be done in this case, see St. Alphonsus, book 6, no. 1066.

796. Notion. The impediment of age is the defect of legitimate age. For the Code of Canon Law, can. 1067, establishes: "A man before the completed sixteenth year of age, and a woman likewise before the completed fourteenth year, cannot validly enter matrimony." The years must be altogether completed, so that if even one day is lacking, matrimony is contracted invalidly.

In warm regions, where physiological puberty in each sex is wont to arrive earlier and therefore matrimony also is celebrated earlier, a dispensation from this impediment is obtained from the Holy See for those who are already mature. Generally, however, pastors of souls should take care to turn young people away from entering matrimony before the age at which, according to the received customs of the region, matrimony is wont to be entered (ibid., § 2).

The impediment of defect of age had already existed for centuries, but its extent was circumscribed by the Code of Canon Law in the place cited. The old discipline, therefore, has been abrogated.

This impediment of age, since it is of merely ecclesiastical law, does not bind the non-baptized, who therefore can contract a valid matrimony among themselves even before attaining the age of sixteen or fourteen years, provided that they have sufficient use of reason and the other things required by natural law. The same seems to be said if matrimony is contracted between a member of the faithful who has the canonical age and an unbeliever who does not yet have it.⁴⁷

Note. If matrimony was invalidly contracted because of the impediment of deficient age, it does not convalidate of itself after puberty has been attained, but a renewal of consent is required, and indeed ordinarily before the parish priest and two witnesses according to the legal norms. For defect of age is an impediment of public law.

⁴⁷ Thus also Wernz-Vidal, Ius can. V, n. 211; Cappello, loc. cit., n. 336.

98. • I. Notion of this impediment.

"A man before the completion of his sixteenth year of age, and a woman before the completion likewise of her fourteenth, cannot enter matrimony." (Can. 1067, § 1.)

Note: a) the years must be altogether completed, so that, if even one day is lacking, the matrimony is invalid.

b) the day of birth is not counted, so that one who was born on the 19th day of July is considered to have completed the fourteenth year of age only on the 20th day of July.

99. • II. Nature of this impediment.

a) It has force from ecclesiastical law alone. For by natural law no determinate age is required, provided that the use of reason is present, which suffices for giving true matrimonial consent.

b) Before the Code the age of legal puberty was assigned, i.e., twelve completed years for females and fourteen likewise completed years for males.

c) Moreover, in the preceding law the impediment of age was not absolute. For if before that age there were present together both sufficient knowledge of the matrimonial contract and the power for completing copula, matrimony was permitted. But there was need of a declaratory sentence of the Roman Pontiff or of the Bishop concerning the twofold fact, namely knowledge and physical power. And in this sense the condition affecting that impediment was understood: "Unless malice should supply age."

100. • III. Cessation of the impediment.

a) By the lapse of time, namely when the canonical age has been attained, it ceases with respect to contracting matrimony.

b) But if there is question of a matrimony already contracted and invalid under this head, renewal of consent is required after the due age has been completed and after the nullity of the matrimony has been known, and this in the face of the Church, if the nullity is public.

c) The Pope indeed can dispense, supposing sufficient discretion in those contracting. But he dispenses very rarely, and outside danger of death dispensation is never given without a public cause.

d) Once the dispensation has been granted and matrimony celebrated, cohabitation of the spouses is interdicted until puberty, on account of the danger of harming chastity.

101. • IV. The wish of the Church.

"Although matrimony contracted after the canonical age is valid, pastors of souls must nevertheless take care to turn young persons away from it before the age at which, according to the received customs of the region, matrimony is usually entered." (Can. 1067, § 2.)

S. Th., Suppl., q. 58, a. 5; q. 43, a. 2.

873. State of the question. - No determinate age (age; leeftijd) is required per se for entering matrimony, supposing the use of reason and sufficient discretion for furnishing consent; nor is actual capacity for copula of itself apt for generation demanded, but it suffices if it will be had in its own time. Yet it is fitting that an age be determined, so that, namely, matrimony be entered with the faculty of generating fully developed, lest it be to the detriment of the health of the contracting parties and of the offspring, and with mature judgment and sufficient preparation for ruling a family.

Hence almost all legislations contain an ordinance concerning age.

Under the old canon law, the age of legal puberty had been determined; but there was not an absolute impediment of age, but a merely conditional one, so that malice supplied age if before that there was sufficient knowledge of matrimony together with potency for performing copula: concerning which double fact there was required a declaratory sentence of the Supreme Pontiff or of the bishop.

Now, in the new law, already independently of the condition of puberty, a determinate age is prescribed; which nevertheless is not very advanced, because the legislation of the Church is universal and must befit all regions, and must provide for the integrity of morals, which is brought into danger from too great a delay of matrimony.

874. Principle. A man before the completed sixteenth year of age, a woman before the completed fourteenth year likewise, cannot enter matrimony. - Thus can. 1067, § 1.

It is said: a) a man before the sixteenth, a woman before the fourteenth; hence by applying the rule of can. 34, § 3, 3°, the day of birth is not counted, so that a man born on the 5th day of May 1930 is considered to have completed the years only on the 6th day of May 1946, and a woman born on the same day only on the 6th day of May 1944.

b) before the completed year; namely, the years must be wholly completed, so that, even one day being lacking, the matrimony is invalid.

The impediment is of ecclesiastical law. For:

1° A lower age, even below puberty, does not diriment matrimony by the law of nature, since according to that law there suffices sufficient use of reason and sufficient knowledge of matrimony, and the power of coeundi at least future.

2° But because the conjugal state is perpetual and of the greatest moment, the Church wisely requires for it a greater maturity of body and soul, which before a certain age is not wont to arrive.

3° A different age is established for man and woman, because the generative faculty is wont to be developed and to cease earlier in females than in males; hence legal puberty also is constituted differently, so that a male from the fourteenth year, a female from the twelfth year, is considered pubescent according to can. 88, § 2.

Hence a) matrimony is valid, even if natural puberty has not yet arrived, provided the legitimate age is present, because the Church does not demand present potency, but age;

b) on the contrary it is invalid, if it is entered with natural puberty but before the required age.

875. Observations. - 1. The impediment ceases by lapse of time, as regards contracting matrimony, namely when the canonical age has been attained.

2. But if before the legitimate age it has been contracted without dispensation, after the age has been attained it remains invalid, and then the consent must be renewed, and indeed in the face of the Church, if the nullity is public.

3. The impediment can also be removed by dispensation of the Pontiff, which is granted very rarely, unless perhaps in certain regions of the missions, in a case of doubtful age; and therefore in a doubt of fact the Ordinary cannot dispense, because it is one of those things in which the Pontiff is not wont to dispense outside those regions of the missions.

4. The dispensation having been conceded and the matrimony celebrated, the cohabitation of the spouses is forbidden until puberty, on account of the danger of injuring chastity.

5. Unbelievers, if they contract among themselves, are not subject to the impediment, as being ecclesiastical. If matrimony is entered between an unbeliever and a believer, at least the believer must have the canonical age, in order that the matrimony be valid.

6. Can. 1067, § 2 warns: "Although matrimony contracted after canonical age is valid, nevertheless pastors of souls must take care to turn youths away from it before the age at which, according to the received morals of the region, matrimony is wont to be entered." Thus especially in our regions, in which a more advanced age is deservedly required.

I say. Therefore in the new Code a notable change has been introduced; the age of puberty is no longer regarded, but the year is fixed absolutely before whose completion marriage cannot validly be entered: the sixteenth for a man, the fourteenth for a woman.

In the second paragraph, once it has been established that after the aforesaid age wedlock is valid, pastors are admonished to turn young persons away from entering this covenant before the civil legal age.

In all our States the age at which marriage can validly be contracted is the age of 21 years, except South Carolina, North Carolina, New Hampshire, Michigan, Idaho, in which it is the age of 18 years, and Tennessee, in which it is 14; this is established for men, and indeed without the consent of parents. For women, however, without the same consent, in many States the age is 18 years, except the States Florida, Kentucky, Louisiana, Pennsylvania, Porto Rico, Rhode Island, Virginia, West Virginia, Wyoming, in which it is 21; Maryland, New Hampshire, in which it is 16; Tennessee, in which it is 12. But the age with the consent of parents in many is 18 years for men; but in Alabama, Georgia, Kansas it is 17; in Arkansas, Iowa, North Carolina, Texas, Utah it is 16; in Kentucky, Louisiana, Maryland, Mississippi, New Hampshire, Virginia it is 14. For women with the consent of parents it is variable from the twelfth year in Virginia, Mississippi, Maryland, Kentucky, Louisiana; to the year 13 in New Hampshire; to the fourteenth year in Utah, Texas, South Carolina, Rhode Island, North Carolina, Maine, Iowa, Georgia, Arkansas, Arizona, Alabama; to the fifteenth year in Wisconsin, Washington, South Dakota, Oklahoma, North Dakota, Minnesota, Kansas, Hawaii, California; to the sixteenth year in Wyoming, West Virginia, Porto Rico, Oregon, Ohio, Nevada, Nebraska, Montana, Michigan, Massachusetts, Indiana, Illinois; and to the eighteenth year in Idaho. In Connecticut no provision is made in a special way for the age of matrimonial consent. New York has its own provisions in relation to this matrimonial consent.¹

¹ Cf. Addenda, p. 1117, n. 70.

The impediment of impotence consists in incapacity for exercising carnal intercourse of itself apt for generation. But this incapacity is manifold, namely: 1°. certain or doubtful; 2°. antecedent or consequent, according as it precedes Marriage or follows it; 3°. temporal or perpetual, according as by lapse of time or by art it can be removed or cannot be removed; 4°. natural or accidental, according as it arises from an intrinsic defect or from an extrinsic cause, for example, a spell; 5°. absolute or respective, according as it exists between a man and all women, or between a man and some determinate woman, or conversely.