Legal adoption as an impediment

565. Declaration. 1. Legal relationship is the nearness of persons arising from adoption. It is called legal because it was first established by civil law, although afterward it was also received by ecclesiastical law.

2. Adoption is defined as a legitimate act by which someone who is not a son or grandson is assumed as son or grandson. It must be made through a public act according to the established laws of each region. Wherefore each person must learn the nature, extent, and effects of adoption from the civil code of his own region.

3. A threefold legal relationship arises from adoption: legal paternity between the adopter and the adopted person and the descendants of the adopted person; legal fraternity between the adopted person and the legitimate children of the adopter, who exist under paternal power; legal affinity, which intervenes between the adopter and the wife of the adopted person and, conversely, between the adopted person and the wife of the adopter.

4. In Roman law a distinction is made between perfect adoption, or arrogation, if a person of his own right is assumed as a son by the supreme authority of the emperor in such a way that he passes into the power and family of the adopter and becomes his necessary heir, equally as natural and legitimate children; and imperfect or simple adoption, if a person who is not of his own right is assumed as a son by the inferior authority of the magistrate in such a way that he does not pass into the family and power of the adopter, but nevertheless receives some right in the inheritance.

5. From perfect adoption in Roman law arose a diriment impediment of matrimony, legal relationship, namely:

a. Between the adopter, the adopted person, and the children and descendants of the adopted person, legal paternity.

b. Between the adopted person and the legitimate children of the adopter who at the time of adoption are constituted under paternal power, legal fraternity.

c. Between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, legal affinity.

The impediment of legal relationship is perpetual, that is, even when adoption is dissolved, it endures in those between whom legal paternity and affinity exist; but in those between whom legal fraternity intervenes, the impediment ceases when adoption is dissolved.

Adoption is dissolved both through emancipation of the adopted person or of the son or daughter of the adopter, and through death of the adopter.

6. The Church made this law of the Romans its own and constituted legal relationship arising from perfect adoption a diriment impediment of matrimony. In more recent time most nations substituted their own civil codes for Roman law; hence the question arose whether the diriment impediment of legal relationship still had force. The question was resolved in this way: the diriment impediment of legal relationship remains in those places in which the law of adoption as to substantial elements agrees with the perfect adoption of Roman law. Wherefore in individual regions it had to be investigated whether the laws in force as to substantial things imitated perfect adoption. Since the decision of the question was not free from difficulty, it happened that this impediment was held as doubtful unless the Holy See issued an authentic declaration concerning it. The new Code now removes the whole difficulty of this matter, because it adopts the civil law as its own.

566. Nature of the Impediment. 1. The peculiar relation which arises by force of adoption between the adopted person and the family of the adopter furnishes a reason for establishing that matrimony not be contracted between persons joined by legal relationship. In reality, in many regions civil law constitutes adoption an impediment of matrimony, now impedient, now diriment. Whether and in what way this impediment stands in the way of ecclesiastical matrimony depends on canon law. Now the new Code has made civil law its own and, as they say, has canonized it.

2. In those regions where legal relationship arising from adoption renders matrimony illicit by civil law, it is also illicit by canon law.¹

3. Therefore in each region it must be examined whether the civil code constitutes legal relationship an impediment of matrimony, whether impedient or diriment, between what persons it has force, and how long it will endure. All these things have force in the same way also in the forum of the Church.

4. Legal relationship brings an impedient impediment of matrimony in Hungary, Germany, Switzerland, and France.

In several other regions legal relationship is a diriment impediment, as will be said below.² Note that a canonical impediment is not removed by civil dispensation, but only by dispensation of the Holy See.

¹ Cn. 1059.

² Cf. Chelodi, n. 57. In Austria, the civil Code derives no impediment of matrimony from adoption; therefore no impedient canonical impediment exists there.

567. On the Unworthy. After he had treated impedient impediments, the Code establishes what must be done by the parish priest if the unworthy wish to enter matrimony.¹ It lists two kinds of unworthy persons: a. notorious apostates and those enrolled in a sect condemned by the Church; b. public sinners and those bound by censure. Although a properly so-called impediment does not stand in the way of their matrimony, nevertheless they deserve peculiar care of pastors.

To 1. a. The faithful must be deterred from contracting matrimony with apostates or those enrolled in a condemned sect; for no less danger threatens both the other party and the future offspring from them than from heretics and schismatics.

b. The parish priest cannot assist at nuptials of this kind, but should refer the matter to the ordinary.

c. The ordinary can grant license of assisting if a grave cause urges and if he prudently judges that all offspring are to be educated Catholic and that the danger of perversion of the other spouse has been removed.

To 2. a. If public sinners or those notoriously bound by censure approach confession, even if they do this sacrilegiously, in the external forum they are held as reconciled before God and the Church; therefore nothing stands in the way of their being admitted to matrimony.

b. If they refuse to approach confession, the parish priest should not assist at the matrimony unless a grave cause, such as danger of civil marriage, concubinage, grave harm, etc., urges.

c. Concerning the cause and its sufficiency, if it can be done, the ordinary must be consulted.

¹ Cn. 1065 and 1066.

604. Nature of the Impediment. 1. The impediment of legal relationship (Burgerliche Verwandtschaft) consists in this, that between persons who have contracted relationship from adoption, valid matrimony cannot be entered.

For the declaration of this matter, see above n. 543.

2. The impediment of legal relationship is merely of ecclesiastical law. The chief reason for establishing this impediment is the peculiar relation of reverence and friendship which arises from adoption between the adopter and the adopted person. To this is added another reason, namely, to avoid the danger of fornication which would threaten between persons staying in the same family if hope of matrimony shone upon them.

3. Hitherto the diriment impediment of legal relationship had force in those places in which the law of adoption, with regard to substantial things, agreed with the adoption of Roman law. But this happened from an authentic declaration of the Holy See in France and in the Neapolitan kingdom, and from the interpretation of authors in Germany, Italy, Spain, and in several republics of Latin America. Therefore in these places legal relationship constituted a diriment impediment up to May 19, 1918.

4. The new Code establishes that legal relationship dirimently impedes matrimony where by civil law it dirimently impedes matrimony.¹ Therefore in judging this impediment, one must no longer attend to Roman law, but to the recent law of each state. From the modern codes legal relationship is a diriment impediment in Croatia, Slavonia, Italy, Spain, Poland. In Germany legal relationship impedes matrimony, but does not dirimently impede it.²

5. In this impediment, as we warned above, the matter of the law is taken from the civil code; the form of the law, or the force of obliging, descends from ecclesiastical law. We have a civil law canonized by the Church.

¹ Cn. 1080.

² Cf. Chelodi, n. 107 s.

By adoption a person becomes in law the child of another, though he is not such by nature. Legal adoption, according to Roman law, was a diriment impediment of marriage between certain parties, and in this matter the civil law was canonized by the law of the Church.

(a) It annulled marriage between the adopter and the adopted and those descendants of the latter who were under his authority at the time of the adoption.

(6) It annulled marriage between the adopted and the children of the adopter as long as they were under his authority.

(c) Finally, it annulled marriage between the adopter and the widow of the adopted, and between the adopted and the widow of the adopter.

Roman law, as such, is nowhere in force at present, and the Code has made new provisions for the circumstances. ,Canon 1059 prescribes that in those countries where by the civil law legal relationship arising from adoption makes marriage unlawful, marriage is also unlawful by canon law. Moreover, Canon 1080 prescribes that those who are held incapable of marrying each other by the civil law on account of legal relationship arising from adoption, cannot validly contract marriage and this by force of canon law.

In England the Adoption Act, 1926, sanctions adoption by order of the Court, but it does not seem to make it an impediment of marriage. In most of the States of the Union there seems to be a form of adoption recognized by law sufficient to make it the basis of the ecclesiastical impediment.¹

¹ Smith, Marriage Process, n. 263.

1. "Whether adoption is to be held as a canonical impediment diriment of marriage in the Kingdom of Tunkin, when, according to the laws and customs of the same kingdom, a person not yet of his own right can adopt, and it is not required that the adopter be older by 25 years, just as little care is taken whether it be a male or a female; eunuchs themselves also are able to adopt, and no account is taken of the age of the adopter relative to the adopted person, nor is the presence of the adopted person required, or his consent in the adoption, so that even absent little children and girls, and those incapable of true consent, can be adopted as sons and daughters?

"R. Negatively." S. C. de P. F., Jan. 14, 1802; I. M. 1011.

2. Titius, a pagan, married Maevia, a pagan, and with her did not consummate the marriage. After the death of Maevia, Titius becomes a Christian. Can he marry Bertha, the sister of Maevia, who has become Christian from pagan?

R. Affirmatively. For the impediment of public honesty from a marriage not consummated does not subsist in the case. And the same would be so if only betrothals had intervened between Titius and Maevia. S. O., Sept. 26, 1837; I. M. 1014.

3. Titius, a spouse, having obtained permission from his spouse to set out for a time into America, entered Religion there and emitted solemn vows. Titia, his spouse, knowing the matter, recalled Titius, her spouse, to herself, since she had several children and herself labored under a grave illness. Titius returned, and, finding his spouse dead and the children still minors in age, entered a new marriage with Caia.

It is asked: What is to be said to the case?

R. The religious profession of Titius, his wife being unwilling or not consenting, as in the case, was invalid. But Titia the wife wholly by right sought and recalled her husband, who, returning, was bound to render the debt to his wife. C. Quidam 3, c. Placet 12, de Convers. coniug.; Schmalzgr., l. 3, tit. 32, n. 24. But, since Titius, emitting religious profession, is presumed by force of law to obligate himself as much as he can, hence he is considered to emit a vow of continence, and therefore, while his wife was living, he could not have asked the debt; his wife being truly dead, he cannot enter another marriage. C. Quidam 3, de Convers. coniug. Nevertheless, if Titius, emitting religious profession, had altogether been unwilling to vow continence except dependently on religious profession, he would not then be held by the vow of continence, and could then have asked the debt, and now could contract another marriage; for presumption yields to truth; and this is valid both in the forum of conscience and also in the external forum, if it is duly proved. Schmalz., l. c., n. 24, 26. But if Titius had truly wished to obligate himself as much as he could, then, entering marriage after his wife had died, without dispensation, this indeed would have been illicit, but not invalid. C. Quidam cit. - G. 913; I. M. 899, 990, 1015.

916. Formerly many difficulties were raised concerning legal relationship, whether or not it was an impediment, and in what degree. The Code, c. 1059, hands down the principle of solution, decreeing that in this matter civil law is to be followed, so that in regions where, by civil relationship, nuptials are rendered illicit, by canonical law marriage is likewise illicit, or a prohibiting impediment, and indeed in the same degree and manner: "In those regions where by civil law legal relationship, arising from adoption, renders nuptials illicit, by canonical law also, marriage is illicit."

Therefore the civil legislation concerning this matter must be carefully inspected. In Gaul legal adoption is held as a prohibiting impediment¹.

¹ "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children, whether legitimate or natural, who could be born to the adopter; between the adopted and the spouse of the adopter; and reciprocally between the adopter and the spouse of the adopted." (Cod. civ., a. 348.)

94. • I. Notion.

It is the propinquity of persons arising from adoption.

95. • II. When it is a merely prohibiting impediment.

This depends upon the civil law of each nation, which in this matter is canonized by the Church.

"In those regions where by civil law legal kinship, arising from adoption, renders nuptials illicit, by canon law also the matrimony is illicit." (Can. 1059.)

a) In Belgium, France, Luxembourg, and Romania civil law establishes a merely prohibiting impediment, and indeed one in force:

1. between the adopter and the adopted person and his descendants.

2. between the diverse adoptive children of the same adopter.

3. between the adopted person and the children whom the adopter shall afterward have.

4. between the adopted person and the wife of the adopter, and between the adopter and the wife of the adopted person.

The impediment is perpetual with respect to legal paternity and affinity, i.e., with respect to the persons indicated under nn. 1 and 4.

It is temporary with respect to legal fraternity, i.e., with respect to the persons listed under nn. 2 and 3. For the impediment ceases as soon as the adopted son or the natural children are emancipated.

b) In Germany it is in force only between the adopted person and the adopter and his descendants, whether natural, even illegitimate, or adoptive.

It ceases with the adoption itself.

c) In Hungary it is in force:

1. between the adopter and the adopted person.

2. between the adopter and the wife of the adopted person, and between the adopted person and the wife of the adopter.

3. between the natural children, even illegitimate, of the adopter and the adopted person and the wife of the same.

4. between the natural children of the adopted person and the wife of the adopter.

Once the adoption has been dissolved, the impediment ceases.

d) In Switzerland it is in force:

1. between the adopter and the adopted person.

2. between the adopter and the wife of the adopted person, and between the adopted person and the wife of the adopter.

e) In Venezuela it is in force:

1. between the adopter and the adopted person and his descendants.

2. between the diverse adoptive children of the same adopter.

3. between the adopted person and the later-born children of the adopter.

4. between the adopter and the spouse of the adopted person, and between the adopted person and the spouse of the adopter.

Once the adoption has been dissolved, the impediment vanishes.¹

¹ Capello, op. cit., n. 324.

N. B. In the other regions, besides those indicated here and at n. 173 b, the impediment of legal kinship is in no way in force.

174. • I. Notion.

It is the propinquity of persons coming from adoption.

175. • II. When it is a diriment impediment.

a) This depends on the civil law of each nation, which in this matter the Church canonizes or makes its own.

"Those who by civil law are held incapable of entering nuptials between themselves on account of legal kinship arising from adoption cannot by force of canon law contract matrimony between themselves." (Can. 1080.)

b) A civil law having adoption as a diriment impediment is in force in the following states: Italy, Spain, Poland, Croatia, Slavonia, Russia, Monaco, Guatemala, Bolivia, Brazil, Colombia, Peru, and perhaps Greece.¹

¹ Cfr. Capello, cited work, n. 570.

c) From the diverse laws in force in diverse nations, it must be drawn out between which persons the impediment is present.

176. • III. Cessation of the impediment.

a) It ceases by abrogation of the civil law promulgating it.

b) Or by dispensation granted not by the civil prince, but by the Church.

866. Principle II. Legal kinship, arising from adoption, in those regions where by civil law it renders nuptials illicit, also by canonical law renders matrimony illicit. - Thus from can. 1059.

Legal kinship (parenté légale; wettelijke verwantschap) is the closeness of persons arising from legitimate adoption; it is called legal because it has its origin from the disposition of civil law establishing closeness on account of adoption; adoption is the legitimate assumption of an extraneous person as son or grandson.

The Church in this matter has made the civil law of diverse regions her own and has canonized it, so that in any region an impediment of matrimony from adoption arises or does not arise, is impeding or diriment, and extends to more or fewer persons, according as the civil law establishes there. But since the Church has not only received the law but has canonized it, the impediment does not cease if dispensation is obtained from the civil authority, but dispensation from ecclesiastical authority is required.

St. Thomas shows the fittingness of the impediment, q. 57, a. 2:

"The divine law chiefly excludes from matrimony those persons whom it was necessary to cohabit; lest..., if it were licit to use carnal copula with them, an easy place would be opened to concupiscence, for the restraining of which matrimony is ordained. And because an adopted son is kept in the house of the adopting father, as a natural son, therefore by human laws it has been prohibited that matrimony be contracted between such persons; and such prohibition is approved by the Church. And hence it is that legal kinship impedes matrimony."

It can exist in various degrees:

1. between the adopter and the adopted and his descendants: legal paternity;

2. between diverse adoptive children or even natural children of the adopter: legal fraternity;

3. between the adopted and the wife of the adopter, between the adopter and the wife of the adopted: legal affinity.

But not everywhere does it extend to all these, but according to the various law.

In several regions today there is no impediment of legal kinship: thus in England and its dominions, the Netherlands, Portugal, Austria, Denmark, Sweden, Norway, and several States of America; there exists an impediment, but merely impeding, in Belgium, as the provincial Council of Mechlin declared, n. 210, in France, Luxembourg, Germany, Switzerland, Hungary, Romania, Venezuela; in some places it is a diriment impediment, as will be said n. 910.

909. Legal kinship (parenté légale; wettelijke verwantschap) is the propinquity or conjunction of persons arising from adoption or legal filiation; as was said, n. 866.

In this matter the Church has canonized the respective civil law of each nation; hence in many regions there is no impediment from legal kinship, or it is merely impedient. In some, however, it is diriment, concerning which the following principle has force.

910. Principle IV. Those who by civil law are held incapable of entering nuptials between themselves because of legal kinship arising from adoption cannot, by force of canon law, validly contract matrimony between themselves. - Thus can. 1080.

Thus in Italy, Spain, Croatia, Slavonia, and in certain regions of Latin America: Bolivia, Colombia, Guatemala, Brazil, Peru.

The impediment arises not only from civil law, but also from canon law, and therefore it does not cease without a dispensation of ecclesiastical authority, even if a civil dispensation had been obtained.