Healing Defects of a Dispensation

I. A dispensation can be vitiated, that is, rendered void, either by subreption or concealment of the truth, or by obreption or exposition of what is false.

II. A dispensation is in fact rendered void or is not rendered void as follows:

1. No dispensation is rendered void because of an error in the name of the person to whom or by whom it is granted, or of the place in which that person remains, or of the thing of which there is question, provided that, in the judgment of the Ordinary, there is no doubt about the person or the thing itself (canon 47).

2. A dispensation granted from a lesser impediment (n. 812) is rendered void by no defect either of obreption or of subreption; and this holds even if the sole final cause set forth in the prayers was false (canon 1054). Likewise and a fortiori the dispensation is valid even if the sole final cause set forth in the prayers ceased before the concession or fulmination of the dispensation. In addition, since no obreption or subreption obstructs validity, a dispensation from a lesser impediment is valid even when another impediment, whether of the same or of another species, has been kept silent; hence in the case only a supplementary dispensation is required for that other impediment.

3. A dispensation from the impediment of consanguinity or affinity, granted in some degree of impediment, is valid, although an error about the degree crept into the petition or the concession, provided the degree really existing is lower, or although another impediment of the same species in an equal or lower degree has been kept silent (canon 1052).

Corollary. If the dispensation was given in an impediment of a greater degree and an impediment, whether of another species or of the same species in a higher degree, has been kept silent, the dispensation is invalid, and a new dispensation of all the impediments is required.

4. Even if there is question of an impediment of greater degree, concealment of the truth or subreption does not obstruct the validity of the dispensation, provided those things have been expressed which, according to the style of the Curia, must be expressed for validity; nor does exposition of what is false or obreption obstruct it, provided either the sole cause proposed or at least one motivating cause from among several proposed causes is true (canon 42). In doubt whether a cause falsely alleged is motivating or impulsive, and likewise whether a motivating cause is true or false, one must stand for the validity of the dispensation (St. Alphonsus VI, 1133). Finally, as was said under 2, a dispensation from a lesser impediment is valid even if the sole motivating cause set forth in the prayers is false.

5. A dispensation in an occult impediment is void if the impediment is not occult, except in a dispensation in an impediment of lesser degree.

Note. For a dispensation to be valid, it suffices that those things which must be expressed for validity be present: in rescripts without an executor, at the time when the rescript is given; in other rescripts, at the time of execution (canon 41).

III. When a defect of the dispensation has been detected, letters Perinde valere, that is, letters by which the defect is healed and it is declared that the letters of dispensation are valid just as if they had been valid from the beginning, should be petitioned if they can be obtained. I said, "if they can be obtained"; wherefore note that letters of this kind are not granted if a final cause has been falsely alleged, unless both the false cause and the one which truly exists tend to the same end. Otherwise a simply new dispensation is required. Besides, concerning the petitioning of letters Perinde valere, observe:

1. In the petition: 1° the prior petition is repeated substantially or integrally, with the substance of the prior grace also added; 2° the cause of nullity is indicated, adding whether perchance a marriage has been entered in the meantime; 3° convalidation of the dispensation is to be obtained, and a new dispensation if another impediment has been added.

2. The petition must be made for the external forum or for the internal forum or for both forums, as follows:

a) Even if the prior dispensation was sought for the external forum alone, but the defect pertains to the internal forum, convalidation should be sought in the internal forum, and indeed in the way in which the petition is made if a public and an occult impediment stand in the way of marriage (n. 817).

b) If the prior dispensation was sought for the internal forum alone: 1° if the defect pertains to the same forum, convalidation should be sought for the same internal forum; 2° if the defect pertains to the external forum, a dispensation should be sought for this same forum, but convalidation of the dispensation obtained should be sought for the internal forum.

c) If the prior dispensation was sought for both forums, a public defect must be healed for both forums, an occult one for the internal forum alone.

3. The Bishop cannot grant letters Perinde valere for convalidating a dispensation granted by the Holy See, even if he himself could have granted the dispensation (cf. canon 1050). Except: 1° when and insofar as he has received a special indult; 2° the case of urgent necessity, so that recourse cannot be had to the Holy See (cf. canon 1045, § 1; canon 81).

IV. If the letters Perinde valere are invalid, letters Perinde valere upon another perinde valere must be petitioned.

Warning.

The Council of Trent says thus: "In contracting marriages, either no dispensation at all is to be given, or rarely, and that from a cause and gratis."¹ Moreover, although this practice has been mitigated, dispensations are nevertheless wounds inflicted on ecclesiastical discipline.² Hence pastors and confessors should observe these words of the Provincial Council of Utrecht: "Let them beware especially lest they themselves furnish the occasion for marriages among the impeded, by too easily suggesting the counsel of petitioning for a dispensation and the hope of obtaining it."³

¹ Session 24, De reformatione matrimonii, chapter 5.

² Cf. rescript of Pius VII to the Bishops of France, February 19, 1809.

³ P. 179.

§ III. — Of obreptive and subreptive dispensation.

Obreptive is said of what is obtained by alleging a falsehood; subreptive, by concealing the truth.

I say 1°: If the obreption or subreption fall upon the principal cause of the dispensation, the dispensation is null. So decrees Innocent III, cap. Super litteris, Decretal. lib. I, tit. 3, de rescriptis; and this at the very least is signified by the usual clause of dispensations: « Si preces veritate nitantur », which, were it not appended, must always be understood, from cap. Ex parte, same title. The reason also is plain; because the superior intends to dispense only on account of this cause, which is principal, and without which he would not dispense. Therefore, this failing, the dispensation falls. For the same reason, the same must be said if the obreption or subreption fall upon that without which, although it be not the principal cause, the superior would not dispense in such manner and form, but with an added condition and burden: as if a rich man seek dispensation in forma pauperum, as I shall say below.

I say 2°: If the obreption or subreption fall upon an impulsive cause only and less principal, from the malice of the allegant, it is more probably null; if from the simplicity and ignorance of the allegant, it is valid. Thus expressly distinguishes and ordains Innocent III, cited cap. Super litteris, de rescriptis.

I say 3°: Subreption or concealment of truth pertaining to the thing per se and intrinsically, or error concerning the moral substance of the matter, renders the dispensation null: as if you have two affinities or consanguinities on the side of either parent, and express only one; if you ask to be dispensed over an affinity and it is consanguinity, or over a consanguinity and it is affinity, or over the fourth degree and it is the third; because, although perhaps the superior would have dispensed equally had you expressed the matter as it is, he is nevertheless held to concede precisely what is asked, and nothing else. More probable, however, I judge — against certain authors — is that if dispensation be sought for the third degree, and it is the fourth, it is valid; because dispensation of the whole is dispensation of the part contained in the whole, and the fourth degree is contained in the third.

I said, « Error concerning the moral substance of the matter »; because, if there were error concerning the physical substance, and nothing pertaining to the dispensation, it would not vitiate the dispensation: as if you call yourself an advocate when you are a physician, or there be error in the name, Peter being put for Paul; for the superior intends to dispense with the petitioner himself.

I say 4°: When dispensation is sought at the Roman court, subreption or concealment of what the law or the style of this court requires vitiates the dispensation; because, although it be not the principal cause, it is nevertheless the condition sine qua the Pontiffs do not intend to dispense. Whence

You will gather 1° that, if you seek at the Roman court dispensation over consanguinity, not expressing the incestuous intercourse, if it preceded, the dispensation is null, from the style of the court; likewise, if the marriage has been contracted or consummated; likewise, if you have contracted with knowledge of the impediment and with rash hope of obtaining the dispensation more easily, and these you do not express, there is no dispensation.

It is to be observed, as to the incestuous intercourse, if it be occult, that dispensation is sought in the sacred Penitentiary, the names suppressed, to avoid infamy or other damage. But when the impediments are manifest, or easily made manifest, dispensation is granted not by the Penitentiary but by the Dataria, and the names must be expressed; because, since a public impediment is concerned, the matter can be brought to a contentious forum, and the decree of the Dataria must be published. In the Penitentiary the commission of dispensing is directed to the confessor, who shall be a master or professor in theology; in the Dataria, to the official of the place. In the Penitentiary all things are granted gratuitously; in the Dataria is paid the mulct, to be expended on the propagation of the faith, or on other pious uses.

You will gather 2° that, when there are several impediments, for instance consanguinity and affinity, or several consanguinities or affinities, there is no dispensation if it be sought separately, now for one, afterwards for the other; but it must be sought for all together. Likewise there is none, if it be not expressed in which line the relationship lies, whether direct or transverse, and in what degree, equal or unequal. Similarly in spiritual cognation, if it be not expressed whether it be spiritual daughterhood or compaternity, whether one baptized, or only stood sponsor. The same say of confirmation. Likewise none, if dispensation be sought over the crime of uxoricide, without expressing that like dispensation was already obtained. Likewise, if one dispensed over defect of birth for Orders and benefice afterwards seeks dispensation over plurality of benefices, not again expressing defect of birth. Likewise, if dispensation be sought in forma pauperum, and the petitioner be not truly poor. And all these things and certain others come from the style of the Roman court.

Dispensation is sought in a threefold form: in forma pauperum, of honest men, and of nobles. That some be judged truly poor, they must be such that they live only from their labor and industry; and therefore it must be expressed in the petition, so that, if that alone be omitted, the petition is useless. Poverty on both sides must be expressed in the petition.

Daelman, doctor of Louvain, quaest. ultima, observat. ultima, de Matrimon., writes that those should be judged poor who have two or three thousand florins, whether in movables or immovables: both because, if they petitioned in forma honestorum, they would have to be stripped of the greater part of this sum for the dispensation, for which a thousand or two thousand florins are asked, according to the closeness of the degrees, and thus they would become poor; and because these few goods are for them as it were the instrument whereby they can work fruitfully by labor and industry, drawing thence no fruits, or fruits so small that they are reputed as nothing. The theologian cited adds that the Apostolic Nuncio judges thus when petitioners are sent to him by parish priests.

You will ask 1° whether, when the Romans append in the dispensation other causes than those which the petitioner set forth, those causes must be true, that the dispensation be valid.

I answer. Negatively, but it suffices that those proposed by the petitioner be true; for it is not on account of anything else that he asks to be dispensed, and in truth on account of those he is dispensed: but others are appended from the style of the court, and lest the dispensation appear given for lighter causes.

[You will ask 2° whether a dispensation can be validly obtained not only for one who knows not, but also for one who wills not.

I answer. Affirmatively, if necessity or at least sufficient motive be present. This right reason dictates, and it seems to be drawn from cap. Si motu proprio, de praebendis in 6°. But the dispensation must be accepted by him dispensed. Otherwise, however, must it be said of dispensations impetrated from the Roman Penitentiary, unless they be sought by persons joined or blood relatives within the fourth degree, for matrimony, or at least by the confessor, on account of motives which he judges grave. So S. Ligor., lib. I, n. 186.]

You will ask 2° whether, the dispenser dying, the dispensation ceases.

I answer. Negatively; because grace does not expire at the death of the grantor, cap. Si super, de officio delegati in 6°. Which is true also although the dispensation have been conceded subject to revocation; because the living dispenser revoked not, nor does the dead man revoke. Otherwise, if he had said: « Until I will », or: « Until it please me »; for the dead man no longer wills, nor does it any longer please him.

[You will ask 4° how dispensation ceases.

I answer. It ceases in three ways, namely: by cessation of the cause, by revocation, by renunciation.

1° If the final cause cease at the time when the letters of dispensation are expedited, the dispensation has no effect. For the superior is not held to dispense without cause; and from cap. Ex parte, Decretal. lib. I, tit. 3, de rescriptis, « in letters of this kind this condition is to be understood, even if it be not appended: Si preces veritate nitantur ». — If the final cause cease after the expedition of the letters, but before their publication and execution, since the commissary cannot dispense in the name of the superior except under the same condition and restriction, although the dispensation was at first valid, it is then affected with nullity. — If the final cause cease after execution of the letters, a distinction must be made. Either the matter consists in one act, and the dispensation removes only an impediment; and then, the impediment removed, it cannot revive through a change of circumstances, according to rule 73 juris in 6°: « A deed legitimately done ought not to be recalled, although a case afterwards arise whence it could not have been begun. » Or the matter has successive course and coalesces out of several acts, as the quadragesimal fast, the recitation of the canonical hours; and then, since the dispensation is virtually multiple, it undoubtedly ceases when its cause is taken away, if namely he who obtained it on account of weak health afterwards perfectly recover. — If the final cause be held likely to endure forever, the dispensation remains. Thus he who was dispensed from irregularity to receive sacred Orders, even if for a long time he may be unwilling to receive them, can afterwards, his mind changed, be legitimately promoted. — But if only the impulsive cause have ceased, the dispensation does not vanish, unless it were expressly conceded under this condition.

2° Dispensation altogether ceases through revocation expressly made by the superior, because obligation or release from obligation hangs upon him. Revocation without just cause would indeed be illicit, but nevertheless valid. S. Ligor., lib. I, n. 197, with others, holds that the sin of the superior is then venial only. An inferior prelate who dispensed by delegation does not validly revoke the dispensation without cause.

3° The one dispensed can renounce the grace obtained, with the assent of the superior, before he has secured its effect, and can use it no longer. Excepted: if the renunciation redound to the damage of another or of the community in whose favor the dispensation was bestowed, or if the prelate, for just cause, command the subject to make use of the dispensation.]