Doubtful impediments

WHEN there is 1 doubt as to the existence of a diriment impediment which annuls marriage by natural or divine law, marriage must not be contracted, for as there would always be a doubt as to whether it was valid, the parties would be exposed to the continual danger of sinning against the natural law. Theologians make an exception to this general rule in favour of those who labour under probable impotence, for these may marry on account of the strong presumption that all men are potent unless the contrary is certain, and because it would be an intolerable hardship to prohibit a person from marrying because of such a doubt (Can. 1068, sec. 2). In the case of a doubtful impediment of positive law, we must distinguish between a doubt of law and a doubt of fact. When there is a doubt whether the positive law extends to the particular case, as whether spiritual relationship arises between the sponsors in a private Baptism and the child, the impediment practically does not exist, as the law is of strict interpretation and the Church dispenses as far as is necessary in such a case of doubt, When the doubt is about a fact, as whether the parties are related within the prohibited degrees of kindred, the Church does not supply if the impediment really exists, and a dispensation should be asked for to make sure. The Bishop has power to dispense in such cases of doubt (Can. 15). When marriage is contracted with a supposed impediment which in reality does not exist, the marriage will of course be null and void if the parties thought that it was altogether impossible, and merely intended to go through the external form. On the other hand, it would seem to be valid if they intended to marry as far as they could, though they were afraid they could not do so. And so if one whose consort has been absent for a long time and who is not known to be dead, as in fact he is, marries again, giving her consent to the marriage as far as possible, it would seem that the marriage is valid though unlawful.

When a marriage has been contracted and a doubt subsequently arises as to the validity on account of the probable 2300". existence of a diriment impediment, inquiry must be made with a view to settling the doubt, and in the meanwhile the party in doubt must abstain from asking for the marriage debt, though he is not precluded from rendering it to a consort who asks for it in good faith without any suspicion about the validity of the marriage. If the doubt still remains after ordinary diligence has been used in making inquiries, the doubt may be put aside, and the marriage may be presumed to be valid.

The rules of law may be applied to such a case, “ In doubt we must presume the validity of the act,” and ‘“‘ In doubt the condition of him who is in possession is the stronger.” These rules apply with all the greater force inasmuch as marriage is favoured, and the decision must always be given in its favour in case of doubt (Can. 1014).

If it becomes certain that a marriage which has been contracted is invalid by reason of a diriment impediment existing between the parties, and the invalidity is publicly known, the parties must separate. Otherwise there would be danger of sin and public scandal. If the impediment is secret and the parties are in good faith without any knowledge of its existence, they should be left in their ignorance until a dispensation from the impediment has been obtained, The dispensation should be executed in one of the ways to be described in a subsequent chapter.

If the parties know of the existence of the impediment and of the consequent nullity of their marriage, they must separate, at least from bed, until a dispensation can be procured. Whether they can be permitted to live together as brother and sister in the same house depends on whether they can thus avoid all proximate occasion of sin. If they cannot, some excuse to avoid scandal and awaking suspicion must be found for a temporary separation.

S. Th. Suppl., q. 50, a. un.

856. An impediment of matrimony (empêchement de mariage; huwelijksbeletsel) in the strict sense is an external circumstance affecting a person, which by natural or positive law directly bars him from entering matrimony as such validly or licitly, or which renders a person unfit for contracting matrimony validly or licitly. It is said:

1° an external circumstance affecting a person, in order to exclude those circumstances which affect the consent or the form of the contract and thus can impede matrimony, but do not directly impede the persons from contracting matrimony;

2° which by natural or positive law bars, in order to exclude everything which unjustly or by force draws one back from matrimony;

3° directly, so that it may be distinguished from an impediment taken in a broader sense, for everything which even indirectly draws one back from contracting matrimony, as if a father or social authority justly commands something which is incompossible with contracting matrimony; and which in some way can be called a moral impediment, but is not a juridic impediment constituted by law and indeed from direct intention;

4° from matrimony as such, insofar as it is a contract of a special kind: thus it is distinguished from an impediment taken broadly, which does not impede matrimony as it is such a special contract, but insofar as it impedes every contract, for example, defect of consent, or the reception of any sacrament whatsoever, for example, the state of sin or defect of intention or of Baptism;

5° from entering validly or licitly; whence a twofold kind of impediment is distinguished: diriment and merely impeding or prohibiting. This latter, namely, only prohibits the matrimony to be contracted or renders it illicit; but the former prohibits and diriments, i.e., renders it illicit and at the same time invalid.

The merely impeding impediment, namely, prohibits matrimony and effects that it cannot be entered licitly; the diriment one prohibits it and effects that it cannot be entered either licitly or validly. Hence an impeding impediment is a prohibiting law; a diriment impediment is a law prohibiting and at the same time irritating.

Thus conformably to the doctrine of St. Thomas. For some things are of the essence of Matrimony, some of its liceity; and impediments can be opposed to each. Hence impediments which are contrary to those things which are of the liceity of matrimony "do not effect that there is not true matrimony, and such are said to impede matrimony to be contracted, but they do not diriment the contract... But impediments which are contrary to those things which are of the essence of matrimony effect that there is not true matrimony, and therefore they are said not only to impede contracting, but to diriment the contract already made" (q. 50, in c.); not "as though dissolving a true matrimony which has been duly contracted, but because they dissolve a matrimony which has been contracted in fact and not in law." For "if some impediment supervenes upon a matrimony duly made, it cannot dissolve the matrimony" (ad 7).

In the old law, and also in St. Thomas, the word impediment is taken in a broad sense, for everything which impedes matrimony not only on the part of the person but also on the part of the act. Thus force and fear, error, espousals insofar as they impede consent, and after the Council of Trent defect of pastor and witnesses, because it impedes the external form required as a condition of validity; indeed some numbered the omission of banns among impeding impediments, insofar as banns are regularly necessary for the licit celebration of matrimony. But in the new law, as before was suggested by some, impediment is taken for the incapacity of the person alone; 1 hence force, fear, error, espousals, clandestinity, and a fortiori defect of banns are no longer reckoned among impediments.

1. Sometimes, however, it is taken in the broad sense: thus can. 1990 (com. int., Oct. 10, 1929, n. 17) and can. 1971 (com. int., March 12, 1929).

857. Division of impediments. - Impediments are divided according to various reasons:

A. By reason of cause or origin, some are of natural law, others of positive law, whether divine or human, i.e., both ecclesiastical for the baptized and also civil for the non-baptized.

It belongs to the Church to recognize impediments of natural and divine law, and to assume and sanction them as impediments in the external forum: but by this reason they formally become canonical impediments.

B. By reason of effect, some are impeding impediments (prohibitifs or prohibants; verhinderende or verbiedende), others, as we have already said, diriment (dirimants; ontbindende or ongeldig makende).

Hence can. 1036:

"§ 1. An impeding impediment contains a grave prohibition of contracting matrimony; yet matrimony is not rendered invalid if, the impediment notwithstanding, it is contracted.

"§ 2. A diriment impediment both gravely prohibits matrimony to be contracted and impedes it from being contracted validly."

C. By reason of extension, impediments are absolute, which impede every matrimony with all persons, such as age, bond, vow, order; or relative, which impede it only with certain persons, such as crime, kinship, disparity of worship.

But some are correlative, which exist on the part of each, such as crime or consanguinity, while some are on one part only, such as order or disparity of worship. Nevertheless, can. 1036, § 3 says: "Although an impediment exists on one part only, nevertheless it renders matrimony either illicit or invalid," because, namely, matrimony does not limp.

D. By reason of duration, they are perpetual, which of themselves never cease but always remain, such as consanguinity; or temporary, which cease or can cease by the course of time, such as age or mixed religion.

Perpetual impediments can be taken away only by dispensation, provided they are dispensable. Dispensable are those in which the Church can and is wont to dispense; but indispensable are those in which she cannot or is not wont to dispense. From impediments of natural and divine law she cannot dispense; from impediments of ecclesiastical law she can dispense, but from a few she does not dispense.

Indispensable are: impotence, bond, consanguinity of the direct line; probably consanguinity in the first degree of the collateral line, and the episcopal order; very rarely is dispensed the order of priesthood, affinity in the direct line especially when matrimony has been consummated, crime from killing a spouse especially public; rarely, abduction, affinity in the direct line when matrimony has not been consummated, age, unless perhaps in certain regions of the missions in a case of doubtful age; less rarely, a solemn vow and sacred order below the priesthood.

No human power, neither civil nor ecclesiastical, can establish an absolute and perpetual impediment, because it is against the natural right which each person has natively to marry; - unless, however, there is supposed some free act by which someone has chosen a more perfect state, through vow or order, and thus has implicitly renounced matrimony, or by which he has committed some crime which would fittingly be punished by prohibition of matrimony.

E. By reason of divulgation and demonstrability, they are public or occult. They are public if in fact they can be proved in the external forum, although by their nature they are occult; but occult if in fact they cannot be proved, although by nature they are public.

Thus conformably to can. 1037: "An impediment is considered public which can be proved in the external forum; otherwise it is occult," and to the response of the com. int., June 25, 1932.

F. By reason of gravity, "some are of lesser grade, others of greater," as can. 1042, § 1 says.

"Of lesser grade are: 1° consanguinity in the third degree of the collateral line (perhaps also mixed with the second or first); 2° affinity in the second degree of the collateral line; 3° public honesty in the second degree; 4° spiritual kinship; 5° crime from adultery with promise or attempted celebration of matrimony even by a civil act alone" (ibid., § 2).

There is no reason in law for this division to be applied to impeding impediments; hence § 3: "Impediments of greater grade are all the others."

858. Observation. - To matrimony, before the other sacraments, impediments are assigned insofar as it is a contract and is entered between two. Hence St. Thomas, ad 1: "Impediments are assigned to matrimony more than to the other sacraments for three reasons: 1° because matrimony consists in two, and therefore it can be impeded in more ways than the other sacraments, which belong singularly to one person; 2° because matrimony has its cause in us and in God, but certain other sacraments only in God; 3° because concerning the other sacraments there is precept, or counsel, as concerning more perfect goods; but concerning matrimony there is indulgence, as concerning a less perfect good. And therefore, that an occasion of advancing to something better may be given, more impediments are assigned to matrimony than to the other sacraments."

859. Principle. With the impediments of natural and divine law preserved, the Church herself and alone has the power of establishing impediments, not only impeding but also diriment, for the marriages of Christians; just as, on the contrary, the civil authority has this for the marriages of unbelievers.

That the Church can establish diriment impediments is defined as of faith in the Council of Trent, sess. 24, can. 4; that she can do this by her own right is established from the condemnation of prop. 59 of the Synod of Pistoia; that she alone can do it, to the exclusion of civil authority, seems sufficiently certain, but in the sense explained above in n. 824, where also the competence of the civil power was spoken of with respect to the unions of unbelievers.

Nor should you say that the Church, in the decree of the Council of Trent, can be understood as the assembly of the faithful or the Christian princes themselves. For where there is question of power and of doctrine, the Church designates only the prelates who from the institution of Christ have received the power of ruling and teaching; as is clear, moreover, from the context and from the erroneous doctrine of the Protestants which is reproved.

Consequently, with regard to those impediments which she establishes, the Church enjoys the power of abrogating, derogating, changing, and dispensing (can. 1040).

860. The active subject of the ecclesiastical power of authentically declaring, establishing, or relaxing matrimonial impediments, of themselves are those to whom by divine law belongs the power of ruling and teaching the Church, namely, the Supreme Pontiff and the bishops; nevertheless in the course of time it has come about that the constitution of an impediment was reckoned among the greater causes, which were reserved to the supreme ecclesiastical authority and withdrawn from the power of individual bishops or particular councils: to bishops there remains only the power of commanding in a particular case. Thus also in the code of law:

1° Can. 1038: "§ 1. It belongs only to the supreme ecclesiastical authority authentically to declare when divine law impedes or diriments matrimony.

"§ 2. To the same supreme authority belongs exclusively the right of constituting other impediments impeding or diriment of matrimony for the baptized, by way of universal or particular law."

The supreme authority in the Church is an ecumenical Council, and the Supreme Pontiff either immediately by himself or through the organ of the Sacred Roman Congregations.

2° Can. 1039: "§ 1. Local Ordinaries can forbid marriages to all actually staying in their territory and to their subjects even outside the boundaries of their territory in a particular case, but only for a time, from a just cause and while it continues.

"§ 2. Only the Apostolic See can add an invalidating clause to a prohibition."

Case.—Zenephon married when a very young man. In social condition Lita, his wife, was far below him. They lived a miserable life for a few months and then the husband, thinking he could no longer endure so unbearable an existence, deserted his wife and settled in the far West. After the lapse of ten years Lita engages to marry Cliopus. To the pastor she admits her prior marriage, informing him that she has never heard directly from her husband, but that once, some six years ago, she heard from a mutual friend that Zenephon had taken to drink, and then died of Bright’s disease in a Western hospital.

Question.—What must be done?

Solution.—The case, like all cases involving the declaration of the existence of a true marriage, must be sent to the Matrimonial Court of the diocese, which court will then be charged with the duty of deciding whether the lady in question is free to enter into new espousals or not. No priest, however certain he may be of the status of such a case, can pass judgment on it. He may have his own convictions, but these do not entitle him to give a decision, or to act in the name of the Church in relation to a new marriage.

Lita must apply to this court and give satisfactory evidence that her husband is dead, and that therefore she is, before God, free to enter into a valid matrimonial contract with Cliopus. The statement made by the mutual friend may have been true or may not have been true. It may have not been founded on any personal knowledge of that mutual friend, but may have been the result of pure hearsay. It may have been uttered as the consequence of the working of a lively imagination, or may have been a baseless fabrication begotten in a desire to please. It may be a fact, too, that the statement attributed to the mutual friend may never have been made; that the mutual friend had no real existence, for oftentimes it happens in such cases that the “wish is father to the thought.” Lita will be called upon to produce the party who made the statement, and an examination will be conducted to ascertain the trustworthiness of the witness. It should not be difficult to trace the missing husband, since the time and place of his sickness were known. The state and hospital records can be searched, and they will afford sufficient evidence of his death if it has really occurred. This, of course, will take time, but it is absolutely necessary. Zenephon may not have died. He may have recovered, at least partially. There is no proof adduced that he really became a drunkard, and when we set forth the fact that he was a young man and in good health the day he deserted his wife, the presumption is in favor of the theory that he is still among the living and, therefore, that Lita is still his lawful wife. The burden of changing this presumption of life into the presumption of death rests upon her who aspires to the new nuptials. Without doubt by using the proper means she could find out many facts having an important bearing upon her matrimonial status. The Church goes slowly and carefully in such cases, for hers it is to safeguard the sacred indissolubility of the marriage bond against the self-interest, the emotions, and the passions of men. Lita must await the decision of the ecclesiastical court.