The Church's prohibition; close time

It is asked whether the conjugal act is licit first in sacred times, then in certain other times in which the conjugal act brings greater or lesser harm either to one spouse or to the conceived offspring. These times are: the time of menstruation, pregnancy, purification, lactation, and infirmity. Concerning these universally it must be said: if there underlies danger of grave harm in health or life, the conjugal act is gravely illicit; if the danger of harm is light, it is prohibited under light sin; but a just cause, especially if the harm which is feared is light, renders the use of marriage licit. But the cause is judged to be just if the inconvenience which arises from abstinence outweighs, or at least equals, the harm which is feared from use. Therefore if only light harm is feared, but abstinence would be long-lasting, intercourse must be said to be licit, both because to abstain for a long time is very burdensome for spouses, and because long-lasting abstinence brings danger of incontinence.

81. 1. In sacred time, i.e. on feast days, during Advent, Lent, and Holy Communion, the conjugal act is licit, because it is prohibited by no law. And although it is counseled that spouses abstain from asking the debt on days which are especially dedicated to doing penance, and especially on days of Holy Communion,¹ nevertheless if on the preceding night they have had intercourse honorably, they are not kept from Holy Communion. But if in completing the act they have sinned venially, reverence toward the most holy sacrament requires that on that day they abstain from Holy Communion, unless there is a particular reason for communicating on that very day.

a. There does not exist, nor has there ever existed, an ecclesiastical law which prohibited the use of marriage on sacred days; but the words of the holy Fathers and the ecclesiastical canons which seem to prohibit it must be understood not of a law obligating in conscience, but of counsel.²

b. The opinion of St. Alphonsus is stricter, n. 922, affirming that one commits venial sin who after intercourse had from pleasure approaches Holy Communion. For spouses who are moved to perform intercourse by no other cause than pleasure do not sin even venially, and therefore can approach Holy Communion without sin, n. 78. But Laymann wisely teaches that the wife must be admonished not to show herself difficult in rendering the debt, especially if she is accustomed to communicate frequently, e.g. on all feast days. Hence she can indeed ask her husband to be willing to abstain from the conjugal act on days of Holy Communion; but if the husband bears this with difficulty, she herself is obliged to render the debt.³

¹ Cf. 1 Cor. 7, 5.

² Ballerini-Palmieri VI, n. 366.

³ Cf. Laymann, Theologia moralis, l. 5, c. 6, n. 16.

82. 2. During the time of menstrual flow. One must distinguish between the menstrual flow or ordinary flow of blood, concerning which above, n. 41, and the extraordinary flow, which comes from illness and sometimes continues for a longer time, up to fifteen days.

a. Intercourse which is had during the time of extraordinary flow never fails to bring harm to the health of the woman; wherefore abstinence from the use of marriage through that time is advised. But intercourse cannot be called altogether illicit unless, according to the judgment of a physician, grave harm threatens the wife, because it is burdensome for the man to abstain from intercourse so long.

b. During the time of ordinary flow, intercourse indeed is not illicit; nevertheless, for a twofold reason abstinence from the use of marriage is to be advised, especially since it is only of a few days. First, on account of a peculiar indecency, not moral but physical; wherefore the man, even with natural and innate nausea, turns himself away from a woman who suffers menstrual flow, and in like manner the woman at that time experiences an innate aversion from every marital intercourse. Then, on account of the danger to health which threatens the wife, whose genital organs at that time are already irritated of themselves.¹ Nevertheless, since each of these reasons is not grave, intercourse during the time of menstrual flow must be called licit, provided there is a reasonable cause of coming together. What the older authors feared, namely that offspring conceived at this time would be born infirm or leprous, is empty.²

In the old law the use of marriage during the time of menstrual flow was prohibited by a particular precept;³ the older theologians also in the new law held the use of marriage at this time to be gravely illicit, especially on account of harm to future offspring: for they thought that offspring, if conceived at this time, would be infirm or monstrous. Others said that intercourse through that time was at least lightly illicit, because the woman is then unfit for generation. Since today it is established that these reasons do not stand, the opinion of the older authors in this matter must be omitted: for offspring can be conceived more easily at this time than at another, and of itself it is healthy and firm.

¹ Capellmann, Medicina past.^9, p. 152.

² Olfers, Pastoralmedicin^2, p. 64.

³ Lev. 15, 19-20; 18, 19.

83. 3. During the time of pregnancy, intercourse can be illicit because it induces danger of miscarriage, especially if it is completed often and impetuously. But since danger of miscarriage properly exists only in the first months of pregnancy, and gradually vanishes as the fetus matures, but the state of beginning pregnancy can scarcely be known, intercourse at this time will have to be called simply licit; nevertheless moderation in both the number and the manner of intercourse is to be commended to spouses who suspect pregnancy.

What some authors teach is difficult, namely that intercourse with a pregnant woman is not free from fault because the semen is frustrated: for marriage is ordered not only to generation, but also to other ends, and especially as a remedy for concupiscence.

84. 4. During the time of purification after childbirth, conception indeed does not occur, and therefore from this side harm does not threaten the woman; but from intercourse itself danger of illness threatens the woman, both because of the great weakness contracted from the pains of childbirth and because of the genital organs wholly altered after childbirth. The danger, which in the first days after childbirth is greater, gradually diminishes and lasts as long as the genital organs have not yet been restored to their prior state. After about two months have elapsed, returning menstruation indicates that the organs have been restored to their places and that a new conception can occur. Wherefore in the first days after childbirth intercourse is gravely illicit on account of the danger of harm, afterward lightly illicit.

Capellmann judges that the danger of grave harm after childbirth continues for two weeks, and of light harm for the following four weeks.¹ Men must be told that they should either restrain concupiscence arising at this time or take care to quiet it by other licit modes. Nevertheless, if a grave cause, especially danger of incontinence, makes intercourse honorable, it is excused from sin even at this time.

¹ Capellmann, l. c., p. 153.

85. 5. During the time of lactation, a new conception ordinarily is not to be feared; nevertheless, if it occurs, soon the milk is also diluted and diminished, and in a short time ceases altogether. Since intercourse had at this time does not bring another harm, it will have to be called licit: for the offspring can be nourished in another way, namely by artificial lactation; moreover spouses would have to abstain too long from the use of marriage, since lactation continues beyond a year, if intercourse were not conceded during this whole time.

86. 6. During the time of illness, the conjugal act of itself is illicit if it brings danger to life or health; but from a grave cause it is licit, namely if otherwise spouses would have to abstain for a long time with danger of incontinence, provided proximate danger of death is not induced. In particular, one must distinguish between contagious diseases, syphilis, phthisis, and non-contagious diseases. A physician must be consulted concerning the quality of the disease. Therefore:

a. If one party labors under syphilitic disease, the French disease of theologians, the use of marriage seems illicit on account of the horrible consequences which it brings both to the other party and to offspring. Moreover the danger of infection is certain; but if the disease is light, it can be removed within a short time.

In this assertion the more recent authors, Lehmkuhl, Ballerini-Palmieri, Marc, etc., agree, led by the reasons which are brought forward by physicians. These are unanimous in describing the most grave evils which arise from this disease for spouses and offspring and gradually affect innumerable families, indeed an entire nation.¹ St. Alphonsus, who does not absolutely forbid the use of marriage in this case, n. 909, perhaps can be reconciled with recent theologians. For diverse degrees of the French disease are distinguished; therefore it can happen that the more recent authors deny concerning the highest degree what St. Alphonsus concedes concerning the milder degree. Let others judge whether, speaking absolutely, the use of marriage can be conceded even in the highest degree of the French disease, because it does not induce proximate danger of death to be undergone within a short time.

b. For those laboring under phthisis, the use of marriage is not illicit, both because phthisical persons ordinarily experience vehement concupiscence, and because grave harm does not come from a moderate use of marriage.

a. Although phthisis of itself is a contagious disease, nevertheless from the use of marriage it must rather be called hereditary, because danger of infection through intercourse is scarcely ever induced. Offspring generated from phthisical parents is not born affected by phthisis, but afterward very easily contracts it on account of the very great disposition to this disease received by heredity from the parents.

b. Because more frequent intercourse can harm those laboring under this disease greatly, great moderation in this matter is to be commended to them.

c. The fact that phthisical offspring, or rather offspring disposed to phthisis, is born does not impede the use of marriage, both because it is not certain that offspring will be generated from this particular intercourse, and if it is generated, it is not certain that it will be generated infected, since hereditary disposition often proceeds by a leap; and finally because for offspring which is generated infirm, "it is better thus to exist than not to exist at all."²

c. If diseases are not contagious, intercourse is licit where the diseases are lighter and not greatly weakening, because they are not made worse by intercourse; but it is illicit where the diseases are greatly weakening and joined with fever or great pain: for these ordinarily become much worse through intercourse. To this genus of diseases must be numbered illnesses of the genitals in the woman, which are accustomed to be so increased through the use of marriage that afterward they are healed with difficulty.³

Women for whom, according to the judgment of a physician, the next childbirth will bring death, ordinarily are not to be obliged to abstain from the use of marriage, both because conception is uncertain, and because judgments of this kind by physicians, as experience testifies, are often false.

¹ Cf. Capellmann, l. c., p. 158; Olfers, l. c., p. 67; Antonelli I, c. II, n. 393 ff.

² Antonelli, Medicina pastoralis II, n. 418.

³ Cf. Capellmann, l. c., p. 161.

There are four prohibitory impediments of marriage according to modern ecclesiastical law: the prohibition of the Church, close time, betrothal, and simple vows. Something must be said on each of these.

The impediment called the Church’s prohibition is either special or general. A special prohibition of marriage is issued by the parish priest, or the Bishop, or the Pope, when it has been found out that the proposed marriage will violate the rights of a third party, or when a well-founded suspicion arises that there is some impediment between the parties (Can. 1023, sec. 3). By a general prohibition is understood a law of the Church which forbids marriage in the circumstances but does not make it null and void if in spite of the prohibition it is contracted. Thus the Church forbids marriage without banns and mixed marriages. We have already treated of the law concerning banns, and it will be more convenient to treat of mixed marriages under the diriment impediment of disparity of worship. Clandestinity, or marriage without the presence of the parish priest and witnesses, is now a diriment impediment, to be treated of below. In Great Britain and in the greater part of the United States of America the decree Tametsi was never published, but clandestinity is now a diriment impediment of marriage in Great Britain and in the United States, as well as throughout the Western Church, by virtue of the decree Ne temere, August 2, 1907, and Canon 1094.

During close time, or the periods between the first Sunday of Advent and Christmas Day, and from Ash Wednesday to Easter Sunday, the solemnization of marriage is forbidden by the common law of the Church. The solemnization of marriage consists especially of the Mass Pro Sponso et Sponsa, the nuptial blessing, and outward pomp and feasting in connection with the marriage. A simple and private marriage without these solemnities during close time is not against the common law (Can. 1108).

It remains for us to treat the prohibitions which are not reckoned among impediments properly so called, but are committed to the judgment of the Ordinary and pastors.

I. Notion. By the name of unworthy persons here are understood those of whom canons 1065 and 1066 speak, that is: 1° those who have notoriously cast off the Catholic faith, even if they have not gone over to a non-Catholic sect; 2° those who have been enrolled in societies condemned by the Church; 3° public sinners; 4° those notoriously bound by a censure.

1. One casts off the Catholic faith who has wished his name to be erased from the registers of Catholics; who by repeated attacks professes that he rejects the dogmas of faith, etc.¹

2. Societies condemned by the Church are Masonic sects or other associations of the same kind which plot against the Church or legitimate civil powers (canon 2335), but not societies which are merely prohibited or dangerous.

3. Who are included under the name of public sinners, see n. 28.

4. Those notoriously bound by a censure are the personally interdicted, and those notoriously excommunicated or suspended.

II. Marriage with an unworthy person. The faithful are also to be deterred from contracting marriage with those who notoriously have either cast off the Catholic faith, even if they have not gone over to a non-Catholic sect, or have been enrolled in societies condemned by the Church (canon 1065, § 1). These things are also to be applied to public sinners and to those notoriously bound by a censure, unless they are converted.

III. Assistance at the marriage of an unworthy person. 1. A pastor should not assist at the nuptials of those who have cast off the Catholic faith or have been enrolled in a condemned society unless the Ordinary has been consulted; and the Ordinary, after inspecting all the circumstances of the matter, will be able to permit him to take part in the marriage, provided a grave cause urges and, according to his prudent judgment, the Ordinary judges that sufficient provision has been made for the Catholic education of all the offspring and for the removal of the danger of perversion of the other spouse (canon 1065, § 2).

2. If a public sinner or one notoriously bound by a censure has first refused to approach sacramental confession or to be reconciled with the Church, the pastor should not assist at that person's marriage unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary (canon 1066). As regards public sinners, the Ordinary should everywhere grant license if only one or the other remains publicly in sin. If each is a public sinner and denies confession, the Ordinary should permit assistance when graver evils are to be feared from denial, such as concubinage to be begun or continued, merely civil marriage, etc.

¹ Vermeersch, Epitome Iuris Canonici II, n. 335.

893. The prohibition of the Church, which is not enumerated by the Code among impediments properly so called², is a prohibition, made by a legitimate superior for a grave cause, against contracting some determinate marriage. Therefore it is distinguished from a general law by which it is forbidden that nuptials be entered with some class of persons.

¹ Reiffenstuel, Schmalzgr., De Angelis, Santi, and other Canonists, lib. IV, tit. 16; St. Alphonsus, n. 982; Ball. P., n. 535, 538, ed. 3; Carrière, II, n. 916-917; Feije, n. 549-551; Noldin, n. 64.

² Impediments properly so called are those which render a person unable to contract marriage.

Now the legitimate superior in the case is: (a) the Supreme Pontiff, who can prohibit some marriage and even "add an invalidating clause"³ in the universal Church, either by himself, or through another, for example through the Roman Congregations; (b) the Bishop for his own diocese; (c) the pastor himself also, but not by an act properly judicial, because of defect of jurisdiction in the external forum: namely, he can deny his assistance to some marriage, when he judges that the nuptials cannot be entered because of a grave cause.

³ Code, c. 1039, § 2.

894. The causes on account of which nuptials can justly be forbidden are chiefly three, namely: (a) a founded suspicion of a hidden impediment, whether prohibiting or especially diriment; thus the Roman Congregations sometimes add this clause to a sentence in a matrimonial case when there is doubt concerning the impotence of either party: Vetito transitu ad alias nuptias, inconsulta S. C.; (b) fear lest the right of a third party be harmed, for example while a lawsuit concerning the value of a prior marriage or espousals is pending, a fortiori if valid espousals were contracted and not dissolved; (c) scandal, or some other grave damage to be avoided.

He sins gravely who contracts marriage against this prohibition of the Church; unless nevertheless the prohibition is made for a light cause and for a time, or when it is certainly established to the betrothed that the reason for the interdiction no longer subsists: for then the sin is only venial.

1. The prohibition of the Church, viz., if the Pope for the whole Church, or the bishop for his diocese interdicts an intended marriage for grave reasons. Such reasons would be, for instance: (a) Grave suspicion that impediments exist to the proposed marriage; (b) Fear that the marriage will cause great trouble; (c) Refusal of parents to give their consent to the marriage of their children, etc.

The Church also forbids (α) Marriage between a Catholic and a non-Catholic; and (β) Marrying without the publication of the banns.

2. Solemn marriages are forbidden from the first Sunday of Advent, inclusive, till the day after Christmas, exclusive, and from Ash Wednesday, inclusive, till the Monday after Easter, exclusive. During this time marriages may take place, but without the solemn blessing of the bride, except by special permission of the Ordinary.

853. The time and place of celebration are determined in the code of law:

A. "Matrimony can be contracted at any time of the year. Only the solemn blessing of nuptials is forbidden from the first Sunday of Advent up to the day of the Nativity of the Lord inclusively, and from Ash Wednesday up to Easter Sunday inclusively. Yet local Ordinaries can, with liturgical laws preserved, permit it even in the aforesaid times from a just cause, the spouses having been warned that they abstain from excessive pomp" (can. 1108).

Therefore: 1) There no longer exists a prohibiting impediment, namely the forbidden time, which in certain places in the closed time prohibited marriages; nevertheless, by particular law they can be prohibited at certain hours, for example, evening or night hours.

2. The solemn blessing can be conceded by the Ordinary, with liturgical laws preserved concerning the Mass for the spouses sometimes not to be said.

3. Then, in the forbidden time, there must be abstention from pomp, such as the sound of bells, public festivity, splendid adornment of the church, solemn escorting of the bride with dances and music. Moderate signs of joy are not forbidden.

B. "Matrimony between Catholics is to be celebrated in the parochial church; but in another church or oratory, whether public or semi-public, it can be celebrated only with the license of the local Ordinary or pastor" (can. 1109, § 1).

Nevertheless: 1° "Local Ordinaries can permit matrimony to be celebrated in private houses only in some extraordinary case and with a just and reasonable cause always acceding; but in churches or oratories either of a seminary or of religious women, let Ordinaries not permit this unless necessity is urgent and suitable cautions have been applied" (can. 1109, § 2). An extraordinary case can be inability or difficulty of going to church, or necessity of secretly convalidating a matrimony; urgent necessity, the destruction of the parochial church.

2° "But marriages between a Catholic party and a non-Catholic party are to be celebrated outside church; but if the Ordinary prudently judges that this cannot be observed without graver evils arising, it is committed to his prudent judgment to dispense in this matter, yet the prescription of can. 1102, § 2 remaining firm," namely, concerning Mass not to be permitted (can. 1109, § 3).

Canon LII. Nuptials or birthdays ought not be celebrated in Lent.

If you consider that even the use of marriage was illicit for penitents in the state of penance, since perpetual penance is prescribed to these monks, it is easily clear that ecclesiastical rights so prohibit unions of this sort that they do not ever permit, according to the mind of Siricius, the use of these sacrilegious nuptials. This could seem to be equivalent to the invalidation of nuptials of this sort, although we confess that this sentence is not expressly handed down here. Cf. the following decree of Innocent I to Victricius concerning this matter, and Canons VI and XVIII of St. Basil above.

Canon CIV. If any widows, however much still placed in lesser years and left by a husband at mature age, have devoted themselves to the Lord and, having cast off lay clothing, have appeared in religious habit under the testimony of the bishop and the Church, but afterwards have passed over to secular nuptials, according to the Apostle they will have condemnation, because they have dared to make void the faith of chastity which they vowed to the Lord. Therefore let such persons remain without the communion of Christians, and let them not even communicate in banquets with Christians. For if adulterous wives are bound by guilt to their husbands, how much more will widows who have changed religious life be marked with the crime of adultery if by lustful pleasure they have corrupted the devotion which, of their own accord and not compelled, they offered to God, and have made a passage to second nuptials? And if they have been seized beforehand by someone with violence rushing in and afterwards by delight of the flesh and of lust have consented to remain in marriage with the abductor or violent man, they will be held liable to the condemnation comprehended above.

Canon IV. If any virgin, by her own will, having cast aside lay dress and being clothed according to the manner of devoted women, has promised to preserve chastity, or if any persons of either sex, by seeking the blessing of penance, have received it from a priest, and have of their own accord passed to earthly marriages, or women violently taken away have been unwilling to separate themselves from the violator of chastity, let both, expelled from the thresholds of the churches, be separated from the communion of Catholic persons in such a way that no consolation whatever even of conversation be left to them.

Canon IV. From the day of Septuagesima up to the octave of Pentecost (other reading: to the octave of Easter), or from the day of the Lord's Advent up to the octave of Epiphany, marriages shall by no means be contracted.