Public Propriety

601. Nature of the Impediment. 1. The impediment of public honesty consists in this, that matrimony is invalid between those who have contracted invalid matrimony (whether it has been consummated or not), likewise between those who live in public or notorious concubinage, and certain consanguineous persons.¹

a. Public honesty in law is also called quasi-affinity, which from the new Code must be defined: the nearness of persons arising from invalid matrimony (whether consummated or not consummated) and from public or notorious concubinage between the man and the blood relatives of the woman, and conversely. This nearness is the foundation of this impediment.

b. As affinity arises from valid matrimony, so public honesty proceeds from invalid matrimony and from public or notorious concubinage. Therefore this impediment does not arise from carnal commerce outside concubinage, but only if it is joined with concubinage.

c. This impediment arises from matrimony invalid in any way whatever, whether it is invalid from defect of consent or from another impediment; therefore also from civil matrimony, since this matrimony among Catholics is invalid because of clandestinity.

2. The impediment of public honesty exists between the man who has contracted invalid matrimony or lives in public or notorious concubinage and the blood relatives of the woman; likewise between the woman who has contracted invalid matrimony or lives in concubinage and the blood relatives of the man.

3. The impediment of public honesty dirimently impedes matrimony in the first and second degree of the direct line between the man and the blood relatives of the woman, and conversely, but not likewise in the collateral line.²

4. This impediment is of ecclesiastical law. Natural law indeed shows that it is contrary to decency for someone to enter matrimony with the relatives of a person who has been publicly and intimately joined to him, but it does not show that matrimony of this sort is invalid. Wherefore this impediment is not contracted by infidels. Moreover, affinity dirimently impedes matrimony only by ecclesiastical law; therefore, a fortiori, public honesty.

Note. The ancient impediment of public honesty has been greatly changed both with regard to nature and with regard to extent.

a. Formerly the impediment arose from matrimony ratified whether valid or invalid, provided it was not invalid from defect of consent. Now it arises only from invalid matrimony, whatever the cause of invalidity may be, or from public or notorious concubinage.

b. Formerly this impediment dirimently impeded matrimony up to the fourth degree inclusively in each line, whether the matrimony was valid or invalid. Now public honesty dirimently impedes matrimony up to the second degree of the direct line only, whether the matrimony was consummated or not.

c. Hitherto this impediment also arose from valid betrothals (which from April 19, 1908, had to have been entered in writing) and absolute betrothals (not entered under a suspensive condition). Now no public honesty arises from betrothals.

¹ Cn. 1078.

² Cn. 1078.

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.

I. Notion. Public honesty is a certain relationship arising from an invalid marriage, whether consummated or not, and from public or notorious concubinage, between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man (canon 1078).¹ It is said:

1. From an invalid marriage, i.e., invalid in any way whatever, whether from a diriment impediment, from defect of legitimate form, or, as it seems, from defect of consent. The reason is that the canon does not distinguish. I said, however, "as it seems" with regard to defect of consent, because the old legislation, according to which a marriage invalid because of defect of consent did not introduce the impediment, gives some persons a reason for doubting.

A merely civil marriage, independently of cohabitation, does not suffice,² because in the mind of the Church it lacks even the appearance of marriage.³ If cohabitation is added, the impediment arises insofar as public or notorious concubinage is added. To what extent this is added will be clear from what must now be said.

2. From public or notorious concubinage. Merely presumed concubinage (cf. canon 133, § 4) does not suffice; nor does occult concubinage. Moreover, note:

a) Concubinage is understood as a relation after the manner of marriage between a man and a woman. Moreover, for concubinage there are required:

Alpha) A permanent or stable relation. For this it certainly suffices if they cohabit; likewise if the woman lives at the man's expense and in a place where he can easily approach her; likewise between two persons between whom intercourse is so frequent and exclusive that it is equivalent to the case just assigned. It does not suffice if the intercourse, however frequent, is not exclusive on the woman's part (a prostitute); nor does carnal intercourse suffice if it is indeed protracted for a long time, but is exercised only from time to time.

Beta) A relation bearing the appearance of a conjugal relation; such a relation exists, for example, in those who have entered what is called a friendly marriage.

Gamma) It is disputed whether carnal intercourse is required or not. But the negative opinion seems to be admitted, and to be drawn from analogy with an invalid marriage, in which abstraction is also made from copula; likewise from comparison with the impediment of affinity, which arises from true marriage as such.⁴

b) Concubinage is public if it has been divulged, or if it has happened or exists in such circumstances that it can and ought prudently to be judged that it will easily be divulged (canon 2197, 1°).

c) Concubinage is notorious by notoriety of law after the sentence of a competent judge which has passed into a thing adjudged, or if the guilty party has confessed it in writing or orally before a competent judge, whether spontaneously or when questioned by the judge (canon 2197, 2°). Concubinage is notorious by notoriety of fact if it is publicly known and was committed in such circumstances that it can be concealed by no tergiversation and excused by no support of law.

Note. This impediment is called that of public honesty because it accords with public honesty; indeed, it is less decent for a man to contract nuptials with the blood-relatives of the other party with whom he contracted a marriage, even though invalid, or lived in public concubinage.

II. Line and degree of public honesty. That relationship is computed in such a way that those who are blood-relatives of the man are, in the same line and degree, relatives of the woman, and vice versa.

III. Existence and scope of the impediment. Public honesty diriments nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and vice versa (canon 1078). Thus, for example, a man cannot contract with the mother or grandmother, nor with the daughter or granddaughter, of a woman with whom he lived in an invalid marriage or in public concubinage.

IV. Multiplication of the impediment. Although the Code is silent concerning the multiplication of this impediment, just as it is silent concerning the multiplication of the impediment of crime, nevertheless it seems that multiplication must be admitted when the titles are multiplied, i.e., marriage or concubinage. Suppose, for example, that Peter lived successively in public concubinage with Anna and Mary, daughters of Christina; the impediment of public honesty between Peter and Christina is multiplied.

V. Dispensation of the impediment. Public honesty in the second degree is an impediment of lesser degree; otherwise it is of greater degree, and therefore dispensation from the impediment is more difficult.

Corollary I. The impediment persists even if the invalid marriage or public or notorious concubinage has ceased.⁵

Corollary II. When an invalid marriage has been convalidated, and likewise when concubinage has been turned into marriage, the impediment of affinity is added, while the impediment of public honesty also, more probably, persists;⁶ nevertheless in practice, since it is inferior to affinity, it is to be less attended to.⁷

¹ Before the Code of Canon Law, public honesty arose from betrothals and from ratified marriage. Having arisen from betrothals, it dirimented marriage in the first degree of each line; from ratified marriage, up to the fourth degree inclusive of each line.

² Pontifical Commission, March 12, 1929, ad 2 (A.A.S. 1929, p. 170).

³ Cf. Sacred Congregation of the Council, March 13, 1879 (A.S.S. XII, p. 147; XIII, p. 126).

⁴ Cf. Mulders in Nederlandsche Katholieke Stemmen 1927, p. 181.

⁵ Sacred Congregation of the Council, July 6, 1658; December 3, 1667; February 28, 1885.

⁶ Sacred Congregation of the Council in the Brixiensis case, December 3, 1667.

⁷ Cf. Mulders, in Nederlandsche Katholieke Stemmen, 1927, p. 183.

Corollary III. Insofar as the impediment of public honesty arises from an invalid marriage or concubinage of infidels, it is determined by the following:

1° The impediment does not arise from the marriage or concubinage of two non-baptized persons, because "those who have not received baptism are not bound by merely ecclesiastical laws" (canon 12). But it does arise if the invalid marriage or concubinage endures after the baptism of each party. It is disputed among authors whether the impediment arises if each is baptized after the invalid marriage or concubinage has ceased.¹ But while a public doubt stands, at least by force of canon 15 the impediment can be held as not having arisen.

2° The impediment arises from the marriage or concubinage of a party baptized either from the beginning of the union, or while the union still endures, with a non-baptized party. Thus authors teach almost commonly, relying on this principle: that a disposition directly affecting the baptized party also indirectly affects the non-baptized party, unless the contrary is expressly established. There is added the fact that the Sacred Congregation of Propaganda so declared concerning the impediment of crime.²

Note that in order that a marriage to be contracted be dirimented in fact, it is required that at least one of those who enter the marriage be subject to the Church through Baptism. Hence it is rightly established: the impediment of public honesty:

a) Directly diriments the marriage of a baptized party with a person blood-related in the first or second degree of the direct line to the other non-baptized party, whether that blood-related person is baptized or is not baptized.

b) Indirectly diriments the marriage of a non-baptized party with a baptized person blood-related to the other baptized party.

c) It does not diriment the marriage of a non-baptized party with a non-baptized person blood-related to the other baptized party; for in that case neither of the contracting parties is subject to the Church.³

¹ Cf. Mulders, loc. cit.

² August 23, 1852 (Collectanea, n. 1079).

³ Mulders, loc. cit.

"Whether from clandestine betrothals the impediment of public honesty is contracted? Resp. Affirmatively." S. Poenit. 10 Sept. 1834.

If a consummated Marriage was not valid, two distinct impediments are had: of public honesty from the null ratified marriage, and of affinity from fornicatory copula. S. C. C. in Brixien., 5 Dec. 1667. Cf. Scavini, l. 3, n. 791, Milan 1874; Benedict XIV, de Syn., l. 9, ch. 13; De Justis, de Dispens. Matrimonial., l. 1, ch. 8.

“Whether the impediment of public propriety is contracted from clandestine betrothals.—Response. Affirmative.” Sacred Penitentiary, 10 September 1834.

“Whether a ratified but non-consummated Marriage of pagans produces public propriety, or is judged to be an invalidating impediment after their conversion? For example, Titius, a pagan, married Maevia, a pagan, but did not consummate the Marriage; after the death of Maevia, Titius becomes a Christian: can he marry Bertha, the sister or female cousin of Maevia, who has become a Christian from being a pagan? And is the same true of the betrothals of pagans as of a ratified Marriage?—Response. The impediment does not subsist.” Holy Office, 19 April 1837.

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.

816. • Public propriety is a relationship or a certain quasi-affinity which arises through a union, not of bodies, but of minds, both from betrothals between one betrothed person and the blood relatives of the other, and from ratified matrimony between one spouse and the blood relatives of the other spouse. By ecclesiastical law it invalidates matrimony.

1. Public propriety arising from valid betrothals, according to the new law of the Council of Trent, session 24, On the Reformation of Matrimony, chapter 3, invalidates matrimony only through the first degree ¹.

¹ Namely, under the more ancient law, betrothals both de futuro and de praesenti invalidated matrimony through the fourth degree, and this even if they were invalid, provided that they were not invalid from a defect of consent. But the Council of Trent decreed thus (l.c.): The Holy Synod wholly abolishes the impediment of public propriety where the betrothals will not be valid for any reason whatsoever; but where they will be valid, let them not exceed the first degree.

2. Public propriety arising from ratified matrimony invalidates matrimony through the fourth degree inclusively. This is proved from several passages of Canon law ².

² In fact, no text of Canon law is adduced to establish that the impediment of public propriety arises from ratified matrimony; and therefore the Doctors conclude that this is gathered by an argument a fortiori. For, as they say, the bond arising from ratified matrimony is stronger than that which arises from betrothals de futuro. Therefore it was equitable that, if an impediment is introduced by the latter, it should also be introduced by the former. But true affinity is not introduced by ratified matrimony, as is evident both from canon Lex 18, cause 27, question 2; from the Declaration of St. Pius V in the constitution Ad Romanum, July 1, 1568; and from the resolution of the Sacred Congregation in Valentina, 1607, reported by Benedict XIV (Canonical Question 291). Therefore it introduces at least the impediment of public propriety.

817. Questions. - QUESTION 1. Does public propriety arise from conditional betrothals, or from betrothals dissolved by mutual consent or for any just cause?

Reply to the first. No, unless the condition has been fulfilled, because when the condition has not been fulfilled true betrothals do not exist ³. - St. Ligorius, no. 1061.

³ You have this defined in the sole chapter, section 1, On Betrothals, in the Sixth: Since no public propriety arises from conditional betrothals before the condition exists, just as none arises from betrothals lacking consent and from uncertain betrothals, etc. That the impediment arises by that very fact after fulfillment of the condition, even without a renewal of consent, is gathered by an argument from the contrary. Schmalzgrueber, book 4, title 1, no. 108.

Reply to the second. Yes. The reason is that the impediment is contracted immediately after valid betrothals have been entered, and an impediment once introduced cannot be removed by the will of the betrothed persons or by another cause supervening upon them. Thus from a Declaration of the Sacred Congregation reported by St. Ligorius, no. 1063 ⁴.

⁴ See Fagnanus on chapter Ad audientiam, no. 29, and Benedict XIV, Canonical Question 291.

818. • QUESTION 2. Does public propriety arise from private betrothals?

Reply. Yes. The reason is that the Church admits no distinction between private and public betrothals.

QUESTION 3. Does public propriety arise from an invalid matrimony?

Reply. Yes, because before the Council of Trent propriety arose from a matrimony of this kind. But the Council changed nothing concerning this, although it restricted the ancient law concerning betrothals de futuro ⁵.

⁵ Thus St. Pius V declared in the constitution Ad Romanum, July 1, 1568, in these words: We, therefore... attending to the fact that under the designation of betrothals, which the said Council of Trent uses, matrimony contracted by words of the present is contained only improperly,... therefore... declare and define that the Decree of the Council of this kind is to be understood altogether and to proceed only in betrothals de futuro, but not in matrimony contracted as aforesaid; rather, in it the impediment still endures in all those cases and degrees in which it had been introduced by the ancient law before the aforesaid Decree of the Council.

Except, first, if the invalidity arises from a defect of consent. Thus from Canon law. Hence the impediment of public propriety is not present if the matrimony was contracted either through error, or through fear, or with fictitious consent. - See St. Ligorius, no. 1062.

Except, second, if the invalidity comes from a prior impediment of public propriety arising from validly contracted betrothals ⁶; for in this case an impediment is not introduced to the prejudice of the prior betrothals. - St. Ligorius, no. 1064. - Hence if Titius, for example, after entering betrothals with Berta and abandoning her, marries her sister, he can, indeed must, return to the first woman; nor does he need a dispensation unless he consummated the matrimony.

⁶ This is what is commonly meant when it is said that this impediment is not retroactive. Concerning this matter you have the express definition of Boniface VIII in the sole chapter On Betrothals, in the Sixth.

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.

845. Notion. The impediment of public propriety (which is also called the justice of public propriety or quasi-affinity) is the proximity of persons arising either a) from an invalid matrimony, or b) from public or notorious concubinage.²⁰⁹

Origin. This impediment was introduced by Benedict XV. For the ancient impediment of public propriety was something altogether different. According to the discipline now in force, the impediment of public propriety arises a) from a matrimony invalid for any cause whatsoever, and therefore also from a putative matrimony; b) from public or notorious concubinage, which is habitual sexual intercourse between a man and woman and publicly known as such. Today the impediment of public propriety most frequently arises from a civil matrimony known as invalid, but only when cohabitation follows.^209a - Since marriages contracted before the new Code must be judged according to the ancient law, it must be kept before the eyes that public propriety then dirimed matrimony up to the first degree if it arose from valid betrothals (even entered privately); but up to the fourth degree if it arose from a ratified matrimony.

²⁰⁹ Code of Canon Law, can. 1078.

^209a Pontifical Commission, March 12, 1929 (Acta Apost. Sed. XXI, 170).

846. Extent of the impediment. The impediment of public propriety dirimes nuptials in the first and second degree of the direct line between the man and the blood relatives of the woman, and conversely.²¹⁰ If two non-baptized persons live in an invalid matrimony or in public concubinage, this impediment, since it is merely of ecclesiastical law, does not arise; it is otherwise if one baptized and one non-baptized person do the same.

The cessation of this impediment is obtained only through a dispensation of the Supreme Pontiff.

In danger of death of either contracting party and in a case of urgent necessity, the parish priest or confessor can dispense from this impediment according to cann. 1043 and 1044 of the Code of Canon Law. Since this impediment in the second degree is numbered among those which are of the lesser degree, a dispensation once granted is valid although a defect of obreption or subreption was committed in the petition for the dispensation. Therefore, the same holds that was said above concerning the impediments of affinity in the second degree of the collateral line and consanguinity in the third degree of the collateral line.

This impediment does not cease through the death of either concubinary partner or spouse, nor even through the legitimate dissolution of the concubinage or invalid matrimony; in other words: the impediment of public propriety once contracted is perpetual and never ceases unless it has been legitimately dispensed.

²¹⁰ Code of Canon Law, can. 1078.

847. It is disputed among authors whether there is a double impediment, namely, of public propriety and affinity, if an invalid matrimony is convalidated; or whether, on the contrary, public propriety or quasi-affinity then passes into true and sole affinity. Some assert that there is a double impediment, for example, Vlaming,²¹¹ Scharnagl,²¹² Schäfer,²¹³ De Smet,²¹⁴ and Linneborn.²¹⁵ - Several weighty authors teach that public propriety passes into affinity through convalidation, so that there is only one impediment of matrimony, for example, Gasparri,²¹⁶ Leitner,²¹⁷ D'Annibale,²¹⁸ and Vogt.²¹⁹ Each opinion does not exceed the bounds of probability, but the second seems to be preferred, both because it is highly fitting that quasi-affinity cease when true affinity supervenes, and because in practice a dispensation is not wont to be requested from both impediments, but only from the sole impediment of affinity arising from a convalidated matrimony.

²¹¹ Prael. iur. matr., 3rd ed., I, 367.

²¹² Das neue kirchl. Gesetzbuch, 2nd ed., 98.

²¹³ Das Eherecht, 7th ed., 151.

²¹⁴ De sponsal. et matrim., 3rd ed., 633.

²¹⁵ Grundriß des Eherechtes, 2nd ed., § 32.

²¹⁶ De matrim., nn. 698 and 721.

²¹⁷ Lehrb. des kirchl. Eherechtes, 231.

²¹⁸ Summula Theol. mor. III, n. 434, note 25.

²¹⁹ Das kirchl. Eherecht, § 41.

162. • I. Notion in the law of the Code.

a) As was said concerning affinity, the notion of this impediment is totally diverse in the preceding law and in the new law.

Public propriety now "arises from invalid matrimony, whether consummated or not, and from public and notorious concubinage; and it makes nuptials diriment in the first and second degree of the direct line between the man and the blood-relatives of the woman, and vice versa." (Can. 1078.)

b) A twofold cause is apt to produce the impediment:

1. Invalid matrimony, from any defect whatever, even of consent, if nevertheless you except civil matrimony, for those whom the nullity of clandestine matrimony holds.¹

¹ Cfr. response of the Pontifical Commission for the authentic interpretation of the Code of Canon Law, 12 March 1929, II, A.A.S., vol. XXI, p. 170.

2. Public or notorious concubinage.

Concubinage is carnal and habitual commerce between a man and a woman, covered by no species of matrimonial bond.

Concubinage is public if it has already been divulged or is found in such circumstances that it can and must prudently be judged that it will easily be divulged. (Can. 2197, 1°.)

It is notorious either by notoriety of law, which has place after a sentence of the judge that has passed into a judged matter or after the confession of the delinquent; or by notoriety of fact, namely when the delict is publicly known and cannot be concealed by any evasion. (ibid. 2° and 3°.)

163. • II. Multiplicity of the impediment.

The impediment seems to be multiplied if either party has entered successively into invalid matrimony or public concubinage with two or more blood-relatives, in the first or second degree of the direct line, of the counterpart.

But, since the Code is silent concerning such multiplicity and authors depart into diverse opinions, that multiplication becomes doubtful by a doubt of law and therefore is practically not to be attended to. (Can. 15.)

164. • III. From what law that impediment proceeds and whom it holds.

a) From merely ecclesiastical law.

b) It obliges all and only the baptized, even non-Catholics.

c) Authors dispute whether betrothed persons who before baptism had lived in invalid matrimony or public concubinage, after conversion incur the impediment of public propriety.

1. If that bond perseveres after baptism, they most certainly incur the impediment.

2. If otherwise, they seem not to be held by that impediment.

165. • IV. Dispensation.

a) Dispensation is the only manner by which the impediment can cease.

b) In the second degree it is reputed a lesser impediment. (Can. 1042.)

166. • V. Law before the Code.

a) Notion.

Public propriety was the propinquity of persons arising from valid betrothals or from ratified non-consummated matrimony, and existing between the man and the blood-relatives of the woman and vice versa between the woman and the blood-relatives of the man in the degrees determined by law.

b) Therefore a twofold cause was apt to produce the impediment:

1° Valid betrothals, absolute or at least those whose condition had been purified, and certain.

Such betrothals made the impediment to the first degree in each line.

Notice that already from the day 19 April 1908 only betrothals drawn up in writing and duly signed according to the norm of the Decree Ne temere are valid.

2° Ratified and non-consummated matrimony, whether valid or invalid, celebrated absolutely, provided the invalidity was not from defect of consent.

And that cause produced the impediment to the fourth degree inclusive in each line.

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.

The impediment of public honesty arises from invalid marriage, whether consummated or not, and from public or notorious concubinage; and it dirimently invalidates nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely (Can. 1078).

Indeed, it is not fitting that the blood-relatives in the first and second degree of the direct line of one of those invalidly joined in marriage, or of those publicly known as concubinarians, be able to enter marriage with the other co-party. Public honesty forbids it. The source of this impediment is invalid marriage, consummated or not, and public and notorious concubinage.¹

¹ Cf. Addenda, p. 1117, n. 70.

XXIII. QUESTION X. What is the impediment of public honesty, and between whom is it contracted? ANSWER. This impediment arises from matrimony and from betrothals. It is contracted between the betrothed man and the mother, sister, and daughter of the betrothed woman, or between the betrothed woman and the father, brother, and son of the betrothed man, provided nevertheless that the betrothals first contracted were valid. For if they be invalid on some head, no impediment arises. But the impediment arising from ratified matrimony extends up to the fourth degree, because Trent limited only the impediment arising from betrothals.

XXIV. From clandestine matrimony there arises the impediment of public honesty, because these marriages are not void from a defect of consent, but on account of the omission of the solemnities. But only those marriages which are null from a defect of consent do not induce the impediment of public honesty. This impediment of public honesty is perpetual, whether it arise from ratified matrimony or from betrothals. If valid betrothals be dissolved by mutual consent, the impediment nevertheless lasts, because as soon as valid betrothals were contracted, the impediment arose. Second betrothals, as being null, supposing that the first are valid, induce no impediment.