Dispensations and Banns

Duties of the Pastor After the Inquiry about Impediments.—(a) Dispensation.—If the pastor finds an impediment of natural or divine law (e.g., the bond of an existing marriage), or an impediment which is never dispensed (e.g., consanguinity in the first degree of the collateral line, notorious conjugicide, when there is no danger of death), he cannot proceed with the marriage. If he discovers another impediment, he must inquire whether or not there is sufficient reason for dispensation. For the impediments of occult crime, disparity of cult outside of mission countries, age, Sacred Orders and religious profession (also for neglecting the form of marriage), a grave reason is necessary to permit marriage; but for the remaining impediments, a less grave reason is required. The usual or grave reasons for dispensation include the public good (e.g., peace between peoples, prevention of serious litigations), a great private good (e.g., a suitable marriage offered to a woman who on account of age or locality can hardly find another such chance), great spiritual good (e.g., prevention of a mixed or civil marriage or great scandal, termination of open concubinage), great temporal good (e.g., means to support the family of a poor widow); but other and lesser reasons sometimes suffice, as when the woman is illegitimate, an orphan, deflowered, sickly, or homely, or the man needs someone to take care of him or of his small children from a previous marriage, or when the marriage has already been announced or will be of great advantage to the parents of one of the parties. In case of urgent necessity or of danger of death, the pastor and also the confessor or priest who assists at the marriage are empowered to grant certain dispensations; in other cases dispensation can be granted only by the local Ordinary or by the Holy See. The petition for a dispensation must state the facts truthfully, but must conceal the identity of the petitioner when the impediment is occult. In executing a dispensation one must observe the conditions laid down by the superior who granted it (see commentaries on Canons 1043 sqq.).

(b) Publication.—Even though it is morally certain that there is no impediment, the banns of marriage should be proclaimed beforehand and in the place where the parties have their domicile or quasi-domicile (or residence, if they are vagi), and also, if necessary, in other places where they have lived. This is a grave duty, since its purpose is to ensure the validity and lawfulness of marriages. If it is morally certain that there is no impediment, the Ordinary may dispense for a good reason (see commentaries on Canons 1022 sqq.).

739. Principles. - I. For a just cause, dispensation can be made from the law of the banns. - Council of Trent, session 24, chapter 1, On the Reformation of Matrimony. Dispensation is more easily made from one or another proclamation than from all.

II. Dispensation from the banns pertains to the Ordinary, or to the Bishop. This is likewise derived from the Council of Trent (l.c.), where the faculty of dispensing is said to be left to the prudence and judgment of the Ordinary.

III. The legitimate causes ¹ of dispensation are: first, lest a matrimony be maliciously impeded; second, grave harm, infamy, or scandal imminent from the delay of matrimony; third, fear lest the man abandon the girl whom he has violated; fourth, if, after matrimony has already been contracted civilly, the bridegroom is unwilling to consent to the three proclamations; and other similar causes. - St. Ligorius, no. 1005.

¹ St. Alphonsus (book 6, no. 1006) rightly distinguishes causes because of which a dispensation not only can but also must be given, and causes because of which dispensation can be made although the Superior is not bound to dispense. To the first class of causes are referred the heads enumerated by the Author; to these add the case in which an impediment is discovered after the matrimony has already been celebrated and therefore the matrimony itself must be convalidated through a renewal of consent. Some add the case in which the betrothed persons would be exposed through the denunciations to the shame and mockery of men; this generally occurs when they are very old, or when an old man is to be joined with a young woman, or a noble with a commoner, etc.; for a certain irreverence is done to the Sacrament when the contracting parties are mocked. See Sanchez (book 3, disputation 9) and Schmalzgrueber (book 4, title 3, from no. 33). But dispensation can be made from mere favor when the marriages of princes or magnates are treated, and generally when, with no suspicion of an impediment, all the inconveniences for avoiding which the denunciations are made are absent. See Schmalzgrueber (l.c., no. 35), who observes (ibid., no. 40) that extrajudicial knowledge suffices for dispensing, with the order of law omitted; the reason is that the Synod leaves the whole matter to the judgment and conscience of the Ordinary.

740. Questions. - QUESTION 1. When the betrothed persons are from different dioceses, must a dispensation be obtained from each Bishop?

Reply. Yes, as it appears. The reason is that there is no connection between the dispensation of the one and the dispensation of the other. Moreover, only the Ordinary of the place can know the cause of dispensation; for there can be reasons for dispensing for one party without their being present for the other, and if impediments are not detected on one side, it does not follow that they cannot be detected on the other.

QUESTION 2. Is a dispensation from the banns required for joining concubinarians already civilly united if one of them is at the point of death?

Reply. No, if there is a grave cause for joining them, for example, for the sake of legitimating offspring or for greater security of conscience, because that case appears altogether to be excepted from the law. - Schmalzgrueber, book 4, title 3, no. 74.

QUESTION 3. Can the Vicar General dispense from the proclamations of the banns?

Reply. More probably, yes, provided the Bishop has not reserved this to himself or does not contradict it. The reason is that the Synod grants this faculty to the Ordinary; and under the name of the Ordinary, if the matter belongs to his office and he is not expressly excluded, there also comes the Vicar General, since he constitutes one tribunal with the Bishop ². - St. Ligorius, no. 1007.

² The contrary Declaration of the Sacred Congregation which is customarily brought forward is regarded as suspect by most, since, although sought, it could never be found; and granting that it existed, the Vicar could still do this by force of custom, which the Synod of Trent did not revoke, for declarations of the Congregation do not abolish custom.

Further, take care to observe three things here:

1. Both the Bishop and the Vicar General can subdelegate to others the faculty of dispensing from the denunciations. See St. Alphonsus (On Privileges, no. 58), Sanchez (book 3, disputation 7, no. 21), and Schmalzgrueber (book 4, title 3, nos. 30-32).

2. If at any time, because of some urgent necessity, the celebration of matrimony precedes the denunciations to be made afterward, the matrimony, as the Synod of Trent observes (session 24, chapter 1, On the Reformation of Matrimony), must not be consummated before the denunciations have been made. Although Sanchez (book 3, disputation 11, no. 3) holds this precept to be grave, nevertheless, according to others with Diana (volume 2, treatise 6, resolution 63, no. 3), it binds lightly if there is no suspicion of an impediment; in this case the Holy Synod itself (l.c.) adds that the denunciations can be remitted by the Ordinary.

3. What several dispute on each side (see St. Alphonsus, book 6, no. 1007, doubt 2), namely, whether even the Pastor can dispense from the denunciations (which, if the words are accepted in their proper sense, must be denied, because the Pastor does not have jurisdiction in the external forum), is easily reconciled if the question is more properly made whether a Pastor can sometimes assist at a matrimony, the denunciations having been omitted, without a dispensation obtained from the Ordinary. It must be denied both when the matrimony can be deferred while the Bishop or his Vicar is approached, and when the dispensation is not owed but is granted from mere favor; in these cases neither is it permitted to use epikeia, which has place only in necessity. Sanchez (book 3, disputation 10, no. 30); Reiffenstuel (book 4, title 3, no. 40); Schmalzgrueber (ibid., no. 45). But it must be affirmed when there is danger in delay and the Ordinary cannot be approached. St. Alphonsus (l.c.); Sanchez (l.c., no. 27); Schmalzgrueber (l.c., no. 42). Or even when, with that danger pressing, the Ordinary unjustly denies a dispensation which he is bound to grant and the Superior of the Ordinary himself cannot be approached. St. Alphonsus (l.c.); Sanchez (l.c., no. 29). Although Reiffenstuel (book 4, title 3, no. 46) rightly observes that this is scarcely to be advised, because not the Pastor but the Ordinary is the judge in the external forum, and it is committed to the judgment of the Ordinary, not of the Pastor, whether the alleged cause is of such a kind that dispensation is owed. Hence, as Schmalzgrueber warns (book 4, title 3, no. 44), the Pastor can be punished even though perhaps he did not sin in the internal forum.

Dispensation in matrimonial proclamations, which formerly could be obtained with more difficulty and very rarely, is now obtained with an easier business, as the following will set forth.

2062. Principles. I. The faculty of DISPENSING, from a just cause, in PROCLAMATIONS, belongs to Ordinaries of places. It is established from Trent (sess. 24, cap. 1, de ref. matr.). Concerning this it must be NOTED:

1. By the name Ordinary are understood the Bishop, and, the See being vacant, the capitular Vicar; a Prelate having quasi-episcopal jurisdiction, and more probably also the vicar general, as is very commonly taught (cf. n. 2259).²⁹

2. For dispensing there is required a just cause, i.e. proportioned to the amplitude of the dispensation. - Hence a less grave cause is required for dispensing from only one denunciation; a graver for dispensing from two; but for licitly dispensing from all, "not any obvious and ordinary cause is enough," says Benedict XIV,³⁰ "but a grave, urgent, and most urgent one is required." And it must be noted besides, "that the Bishop, in dispensing in denunciations, is always bound diligently to inquire elsewhere concerning impediments, unless it were commonly established that they are not present."³¹

2063. II. According to the variety of causes, the Ordinary sometimes CAN and sometimes IS BOUND to dispense from proclamations. - It is established from those things which have been said concerning dispensation in the Treatise on Laws (cf. n. 234, 2). - Hence:

1. He can dispense, if the cause is sufficient, and no grave inconvenience from denial is to be feared: for example "if nuptials are to be contracted among magnates; if the betrothed are very old, or very disparate in condition, age, riches, or quality."³²

2. He is bound to dispense, if the cause is urgent, namely if grave common or private damage, spiritual or temporal, is to be avoided; or if the dispensation will conduce to a notable spiritual or temporal good of the community or of some private person. CAUSES of this kind are: 1) Probable fear lest the matrimony be impeded maliciously. 2) Necessity of matrimony for avoiding damage or infamy of the contracting parties or of offspring: for example if concubinarians were reputed spouses; or if defloration preceded, and the bridegroom were now about to die, or about to depart to a distant region, or a change of will in him were feared. 3) The bad will of a bridegroom refusing, after civil matrimony has already been contracted, that three proclamations be made; and similar things.³³

2064. Questions. IT IS ASKED 1. Whether dispensation, when the betrothed are from diverse dioceses, must be obtained from EACH BISHOP?

Resp. The more common opinion today is affirmative, and, the intrinsic reasons being considered, also seems more probable. Yet where contrary custom is in force, it can be observed; but the mandate of free state is altogether required (cf. n. 2048, 1).

IT IS ASKED 2. Whether the PARISH PRIEST can sometimes dispense in denunciations?

Resp. Negatively, "because the parish priest has no jurisdiction in the external forum."³⁴ - Yet very probably authors say that, although the parish priest cannot dispense, nevertheless in cases in which the Bishop is bound to dispense and cannot be approached, he will be able to declare that the precept of proclamations does not oblige, provided he is certain that no impediment is present.³⁵

Notes near nn. 1537-1538, persons and dispensation of banns (printed p. 226).

1 L. VI. 991. | 2 Ib. | 3 De Imp. n. 251. 3°. | 4 Sess. 24. c. 7. de Ref. Matr. Collect. p. 437. n. 968. | 5 De Matr. § 21. V. p. 64. 4). | 6 Feije, de Imp. n. 252. | 7 7 Jahrg. S. 68.

1538. Principles. - I. For a just cause dispensation can be made from the law of banns - Trent.¹ - But dispensation is made more easily from one or another proclamation than from all. But Benedict XIV² forbade Bishops to dispense from all, "unless a legitimate, most grave, and inescapable cause presses, as is clear from the Tridentine." But such a cause, since it is relative, will exist much more easily among us than elsewhere.

II. Dispensation of banns pertains to the Bishop as Ordinary. - It is likewise drawn from the Tridentine,³ where it is said that the faculty of dispensing is left to the prudence and judgment of the Ordinary.

III. But the legitimate causes of dispensation are some on account of which the Bishop ought to dispense, and others on account of which he can. Of the former kind are: 1° lest Matrimony be maliciously impeded; 2° grave damage, infamy, or scandal imminent from delay of Matrimony; 3° fear lest the man abandon a girl violated by him; 4° if, Matrimony already having been contracted civilly, the betrothed man does not wish to consent to three proclamations, and other similar things.⁴ - Of the latter kind are: 1° if nuptials are to be contracted among the great; 2° if the betrothed persons are very old, or very disparate in condition, age, wealth, or quality; 3° if it is morally certain that no impediment is present.⁵

Notes near n. 1539, delegation and epikeia for dispensation of banns (printed p. 227).

1 Sess. 24. c. 1. de Ref. Matr. | 2 Bulla, Nimiam licentiam. 18 Maii 1743. Item C. Satis vobis. 17 Nov. 1741. | 3 Sess. 24. c. 1. de Ref. Matr. | 4 L. VI. 1005. | 5 Ib. 1006. | 6 Ib. Vide Feije, n. 266.

1539. Questions. - Quaer. 1° When the betrothed persons are from different dioceses, must dispensation be obtained from each Bishop?

Resp. Affirmatively, as it seems. The reason is because there is no connection between the dispensation of one and that of the other. From another source, only the Ordinary of the place can know concerning the cause of dispensation: for there can be reasons for dispensing for one party, without their being present for the other; and, if impediments are not detected from one side, it does not follow that they cannot be detected from the other. - Nevertheless St. Alphonsus⁶ does not correct those teaching the contrary.

Quaer. 2° Can the Vicar General, and likewise the Capitular Vicar (or among us the Administrator of the diocese), dispense from the proclamations of banns?

Resp. to the 1st. Affirmatively, more probably, according to the most common opinion, provided the Bishop has not reserved this to himself, or does not contradict. The reason is because the Synod concedes this faculty to the Ordinary; but under the name of Ordinary, if the matter belongs to his office and he himself is not expressly excluded, comes also the Vicar General, since he constitutes one tribunal with the Bishop.¹

Resp. to the 2nd. Affirmatively, and this is certain from the decree of the Sacred Congregation of the Council, March 2, 1624.

Quaer. 3° Whether and by whom can this faculty be delegated?

Resp. Affirmatively, by those who have it by ordinary right; therefore by the Bishop, by the Vicar General and Capitular Vicar, and, since his jurisdiction is quasi-ordinary or to the universality of causes, also by the Administrator of the diocese. Cf. n. 149, 150. - In very many dioceses this faculty is delegated, at least as regards one or another announcement, to all priests. Let each consult the letters of his Jurisdiction or the diocesan statutes.

Quaer. 4° Whether and when can proclamations be omitted through epikeia, without a preceding dispensation of the Ordinary?

Resp. Affirmatively, VERY probably, provided the following conditions concur: 1st that there be present a cause on account of which the Bishop ought to dispense (n. 1538. III.); 2nd that he (or, if he unjustly refuses dispensation, his Superior) cannot be approached; 3rd that there be danger in delay; 4th that it be clear that no impediment is present.² - Nevertheless Reiffenstuel³ rightly warns that omission is almost not to be advised when the Ordinary (outside the case of a concubinary dying, Feije⁴ aptly adds) has denied dispensation; for it belongs to the Ordinary to judge whether the alleged cause is of such a kind that dispensation is owed. - I add that it is also to be dissuaded in States in which proclamations are prescribed by civil law.

Here again I admonish that the aforesaid conditions occur more easily among us. Wherefore I adhere to the resolutions which Smith hands down on this matter.⁵

Note. - The Tridentine sometimes posits that dispensation be made in such a way that the announcements have place after Matrimony has been contracted, but before it has been consummated. Nevertheless it leaves to the judgment of the Ordinary that, if he prefers, he dispense simply. But today generally only this latter mode is used.

841. Dispensation of banns. - Not only the Supreme Pontiff, but also "the proper local Ordinary, according to his prudent judgment, can dispense from publications to be made, even in another diocese, from a legitimate cause. If there are several proper Ordinaries, that one has the right of dispensing in whose diocese the matrimony is celebrated; but if the matrimony is entered outside the proper dioceses, any proper Ordinary can dispense" (can. 1028).

Therefore he can dispense:

1° Only the proper Ordinary; therefore a dispensation conceded by a non-proper Ordinary is invalid, even if the matrimony is celebrated in his diocese.

2° From a legitimate cause; otherwise the dispensation is invalid, because the Ordinary dispenses in the law of a superior.

A proportionate cause is required, and therefore:

1° The lesser, the greater probability or moral certainty is present concerning the absence of any impediment whatever.

a) If it is morally established that there is no impediment, any reasonable cause, indeed the very petition of the spouses, can be a sufficient cause of dispensing even from all publications.

b) But if a positive doubt is present concerning some impediment, of itself and generally the Ordinary is in no way able to dispense from all publications.

c) Finally, if neither moral certainty concerning absence nor positive doubt concerning the existence of an impediment is had, the Ordinary can dispense for various causes.

2° The greater, the more or all the banns are remitted. But some causes are necessary, on account of which the Ordinary is bound to dispense; others are gracious, on account of which he can dispense.

Necessary causes, on account of which he is bound to dispense, are grave damage to be avoided or a notable good to be obtained; namely:

a) danger lest the matrimony be maliciously impeded, i.e., without just cause;

b) danger of infamy or scandal, as if concubinarii, who are held as legitimate spouses, wish to enter matrimony;

c) danger lest the groom abandon a girl deflowered by him;

d) danger of death, while offspring are to be legitimated or the salvation of the dying person more securely procured;

e) urgent necessity of departing with continual danger of incontinence;

f) birth imminent before the announcements have been made;

g) danger lest the spouses be content with civil matrimony alone.

Gracious causes, on account of which he can dispense rather than is bound to, are:

a) great disproportion in the respective age or condition of the spouses, which exposes them to mockery;

b) nobility of the future spouses, whose relations are more known, and whose nuptials do not take place without great deliberation and publicity;

c) every legitimate reason for anticipating matrimony, especially if it is morally established that there is no impediment.

These latter causes for the most part legitimate only a partial dispensation; but the prior ones, with urgent necessity, legitimate even a total dispensation.

Dispensation of the banns does not dispense from the announcement of impediments, nor from the obligation of inquiring concerning them; rather this seems to be more urged, unless it is established that no impediments are present.

The pastor cannot dispense, unless he receives delegation from the Ordinary for this; in certain regions, as in Belgium, vicars forane or deans are usually delegated for dispensing over one or two proclamations. In urgent necessity, the pastor can declare that the law of banns does not oblige with so great an inconvenience.

Thus:

1° if there is danger in delay and the Ordinary cannot be approached;

2° if a solemnly celebrated matrimony, afterward because of an impediment found, must be convalidated by renewed consent;

3° if because of public disturbance announcements cannot be made;

4° if a matrimony of conscience is celebrated (can. 1104).

I say. For a just cause one can be dispensed from the law of banns. - It is established from the Council of Trent, sess. 24, cap. 1, de Reform. Matrim. But dispensation is more easily given from one or another proclamation than from all; for in order that dispensation be given from all, Benedict XIV requires a cause urgent, legitimate, most grave, and ineluctable.

§ 1. The proper Ordinary of the place, according to his prudent judgment, can dispense for a legitimate cause from publications, even those to be made in another diocese (Can. 1028).

The legitimate causes of dispensation are, according to theologians: 1°. lest the Marriage be maliciously impeded; 2°. grave damage, infamy, or scandal imminent from the delay of Marriage; 3°. fear lest the man abandon a defiled girl; 4°. if, Marriage already having been civilly contracted where the law of clandestinity is in force, the betrothed man is unwilling to consent to three proclamations. In these and similar cases, since it is a question of avoiding grave damage or of procuring a notable good, not only can the Bishop dispense, but he also ought to do so; but he can, although he ought not, whenever he judges this to be opportune, provided it is morally certain that no impediment is present. - Cf. S. Alphonsus, nn. 1005 and 1006; Baller. note (c), p. 712; Benedict XIV, Const. Nimiam licentiam, 18 May 1743.

Question 1. When the betrothed are from different dioceses, must dispensation be obtained from each Bishop?

Resp. § 2. If there are several proper Ordinaries, he has the right of dispensing in whose diocese the marriage is celebrated; but if the marriage is entered outside their proper dioceses, any proper Ordinary can dispense (Can. 1028).

Question 2. Can the Vicar General dispense from the proclamations of banns?

Resp. Affirmatively, provided the Bishop has not reserved this to himself or does not contradict it. The reason is that the New Code grants this faculty to the Ordinary; but under the name of Ordinary, if the matter belongs to his office and he is not expressly excluded, there also comes the Vicar General, since he constitutes one tribunal with the Bishop. Therefore he will be able both to exercise this power and to subdelegate it to others. - Cf. S. Alphonsus, n. 1007, and de Privilegiis, n. 58; Baller. note (a), p. 713.

Titius and Titia, Catholics, are known to fulfill the precept of hearing Mass, but, as it seems, never receive the sacraments. One day Titius discloses the cause of this to Caius, the quasi-parish priest, and says that although in common estimation he and Titia are spouses joined in lawful marriage, this is nevertheless not true, since they came there fourteen years ago while Titia’s true husband was still living. Afterwards indeed Titia’s husband died, and no impediment any longer exists between himself and Titia; they wish to reform their life, provided this can be done without scandal and with Titia’s reputation preserved. Caius, however, does not know what is to be done in the case. Hence it is asked:

1. What is the obligation of the banns, and does it sometimes cease or can it be dispensed?

2. What is the obligation of celebrating marriage in the face of the Church, and does it sometimes cease or can it be dispensed?

3. What is to be said of the case?

1. What is the obligation of banns, and does it sometimes cease, or can a dispensation be had?

The obligation of publishing the banns before a marriage is celebrated is a grave one, but the bishop or his vicar-general can dispense from them either wholly or in part for good reason. When there is no impediment and it is necessary to celebrate a marriage at once in order to avoid very serious harm, marriage may sometimes be contracted without banns.¹

1 Manual of Moral Theology, vol. ii, 265 f.

2. What obligation is there of celebrating marriage in the face of the Church, and does it cease sometimes?

From the earliest times there existed a grave obligation of celebrating marriage in face of the Church, or in other words before the parish priest or the bishop. Before the decree Ne Temere came into force, 19 April 1908, marriages of Catholics otherwise celebrated were only unlawful in England and in most parts of the United States; after that date they are also invalid, as a general rule. An exception to this rule is made by the decree Ne Temere (§ VIII): “ Should it happen that in any district the parish priest or the Ordinary of the place or a priest delegated by either of them, before whom marriage can be celebrated, is not to be had, and that this condition of things has lasted for a month, marriage may be validly and licitly entered upon by the formal declaration of consent made by the spouses in the presence of two witnesses.”

3. The case. We need not consider the difficulties in the way of marrying Titius and Titia which would arise from English civil law. There is good reason for granting a dispensation from banns and this should be obtained by Caius. He should also make sure that now at least there is no impediment to the marriage of Titius and Titia. The religious marriage may then be celebrated in the manner prescribed by ecclesiastical law.