Public propriety before and under the Code

Before the issue of the new Code the impediment of public propriety arose by ecclesiastical law from valid and certain betrothal, and from ratified, not consummated, marriage.

The Code has made a great change in this impediment. According to Canon 1078, the impediment of public propriety arises from invalid marriage, whether consummated or not, and from public and notorious concubinage; and it annuls marriage in the first and second degree of the direct line between the man and the relations by blood of the woman and wice versa. Merely civil marriage by itself will not produce this impediment since it produces no canonical effects. But the impediment of public propriety will arise from the public and notorious concubinage which will be associated with merely civil marriage.

819. • QUESTION 4. Does public propriety arise from civil matrimony?

Reply. It appears that it must be affirmed, whether the contracting parties intend afterward to contract before the Church or not; for in the first case it is considered a betrothal contract, and in the second it is considered a clandestine matrimony, which, although invalid, according to what has been said invalidates matrimony through the fourth degree ⁷. - See St. Ligorius, no. 1064.

⁷ Elsewhere we have already observed, above in the note to no. 730, that it can scarcely happen that those who approach the magistrate to contract civil matrimony did not first agree concerning it. If indeed they agreed with each other to contract matrimony before the Church, betrothals had therefore already preceded from that time. But if this intention was lacking, not only had no betrothals preceded, which are a promise of matrimony and not of a concubinary union, but neither, according to the more solid opinion, do you have in the acts performed before the magistrate an invalid matrimony of this kind which would introduce the impediment of public propriety. See Appendix III at the end of this volume after page 1078.

915. Public honesty (honnêteté publique; openbare eerbaarheid) or quasi-affinity is a certain propinquity or conjunction of persons, arising from a union which has a likeness with the perfect matrimony from which true affinity arises. It is called public honesty, because it agrees with public honesty that matrimony not be entered with the blood-relatives of a person with whom there has been so intimate a public conjunction (a. 4).

In the old law this impediment arose from valid betrothals and from ratified matrimony even if invalid; in the new law from betrothals no canonical impediment now arises, while from ratified but valid matrimony, though not consummated, affinity arises. But the impediment of public honesty now arises from invalid matrimony and from public and notorious concubinage, because each union has a likeness with valid matrimony, which founds affinity.

916. Principle II. The impediment of public honesty arises from invalid matrimony, whether consummated or not, and from public or notorious concubinage; and it dirimently impedes nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely. - Thus can. 1078.

Therefore the impediment arises:

1° From invalid matrimony even if not consummated.

Therefore from invalid matrimony on account of any defect whatever, even of consent; but not from merely civil matrimony, for those who are subject to the juridical form required by the Church, unless, however, cohabitation is present (com. int., March 12, 1929).

2° From public or notorious concubinage.

Concubinage is carnal and habitual commerce, from an express or tacit agreement, between this man and that woman, covered by no appearance of a matrimonial bond. It is public if it is already spread abroad, or is situated in such circumstances that it can and ought prudently to be judged that it will easily be spread abroad. It is notorious either with notoriety of law, which has place after a sentence of a judge which has passed into a res judicata, or after a confession of the delinquent made in court; or with notoriety of fact, if the delict is publicly known and cannot be concealed by any tergiversation (can. 2197).

3° In the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely.

Therefore it no longer dirimently impedes matrimony with the blood-relatives of the partner in the collateral line. Hence one invalidly joined, or a public or notorious concubinary, can enter matrimony with the sister and first cousin of the putative wife or concubine, but not with the mother or grandmother, nor with the daughter or granddaughter of the partner.

The impediment: 1) is of ecclesiastical law, whence it does not affect unbelievers contracting among themselves;

2. is perpetual: it is not taken away if the matrimony or concubinage ceases by death or separation, nor probably if it is converted into valid nuptials; in which case in the first and second degree of the direct line there would be a double impediment, namely of affinity and of public honesty;

3. is multiplied, if either party has entered invalid matrimony or public concubinage successively with two or more blood-relatives, in the first or second degree of the direct line, of the other party. This, however, is not explicitly affirmed in the Code.

917. Observations. - 1. The impediments described, since they are of ecclesiastical law, do not directly reach unbelievers, but only indirectly by reason of the faithful party. But if both are baptized while the union endures, the impediment arises. If the conjunction is entered between a baptized and a non-baptized person, or if during the conjunction one is baptized, the impediment of public honesty arises between the baptized person and the blood-relatives, even non-baptized, of the other party, indeed between the non-baptized person and a baptized blood-relative of the baptized other party; - but whether the impediment of affinity also arises is disputed: many deny it, because affinity arises from ratified matrimony, but in the case a sacrament is not yet present; others affirm it, because ratified matrimony in that part of the Code is to be understood in a broader sense of every valid matrimony, otherwise from invalid matrimony between such persons the impediment, namely of public honesty, would arise, but from valid matrimony none! The matter cannot be determined with certainty, because of the imperfect manner of speaking of the Code. Likewise, if the union has already been dissolved and one is baptized, it can be disputed whether the impediment is incurred; but this seems rather to be denied, because the foundation of the impediment does not persist.

2. Thus in the new law. In the ancient law these impediments were very different. Affinity arose not from matrimony but from perfect copula, whether licit or illicit; and it dirimently impeded matrimony in the direct line indefinitely, in the collateral line up to the 4th degree if it arose from licit copula, up to the 2nd if from illicit copula. But public honesty arose from valid and absolute betrothals, and from ratified matrimony, valid or invalid unless from defect of consent: from betrothals it dirimently impeded matrimony with the blood-relatives of the other party in the 1st degree in either line; from ratified matrimony even invalid up to the 4th degree. According to the ancient law the validity of marriages entered before May 19, 1918 is to be judged.

3. The impediments can be taken away by dispensation. Yet very rarely does the Church dispense from affinity in the 1st degree of the direct line, especially from licit copula; in the collateral line, especially in the 2nd degree, quite easily, and the dispensation is valid even if in the petition or concession an error concerning the degree has crept in, provided the degree really existing is inferior, or even if another impediment of the same species in an equal or inferior degree has been kept silent (can. 1052). A dispensation from public honesty in the 2nd degree is also easily conceded; indeed, for a grave cause in the 1st degree, provided, according to can. 1076, § 3, there is no doubt that one party is the offspring of the other.