Things to Be Noted Regarding the Power of Dispensing

I. Regarding the interpretation of power.

1. Ordinary power of dispensing and power delegated for the whole range of affairs is to be interpreted broadly; any other power strictly (canons 50; 66, § 1; 200, § 1).

2. To one to whom power has been delegated are also understood to have been granted those things without which the same power could not be exercised (canon 200, § 1); wherefore in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation (canon 66, § 3). Nevertheless, when a declaratory or condemnatory sentence has been issued, one excommunicated, personally interdicted, or suspended cannot validly obtain any pontifical favor unless mention of the excommunication is made in the pontifical rescript (canons 2265, § 2; 2275, 3°; 2283).

3. In marriages either contracted or to be contracted, one who enjoys a general indult of dispensing concerning some certain impediment can, unless something else is expressly prescribed in the indult itself, dispense concerning it even if the same impediment is multiple (canon 1049, § 1).

4. One who has a general indult of dispensing concerning several impediments of diverse species, whether diriment or impedient, can dispense concerning the same impediments, even public ones, occurring in one and the same case (canon 1049, § 2).

II. Regarding the use of power.

1. Power conferred for the internal forum can also be exercised in the extra-sacramental internal forum, unless the sacramental forum is required (canon 202, § 2).

2. If the forum for which the power was given has not been expressed, the power is understood to have been granted for each forum, unless from the nature of the matter itself something else is clear (canon 202, § 3).

3. If at any time, with an impediment or public impediments concerning which someone can dispense from an indult, another impediment concurs concerning which he cannot dispense, the Apostolic See must be approached for all; if, however, the impediment or impediments concerning which he can dispense are discovered after the dispensation has been obtained from the Holy See, he will be able to use his faculties (canon 1050).

4. If a petition for dispensation has been sent to the Holy See, local Ordinaries are not to use their faculties, if they have any (canon 1048), unless from a grave and urgent cause; and in this case they should immediately warn the Superior about the matter (canon 204, § 2).

5. If an Ordinary dispenses from an Apostolic indult, he should observe all the rules which the Roman Curia is accustomed to observe.¹

6. Those who grant a dispensation from power delegated by the Apostolic See should make express mention in the same dispensation of the pontifical indult (canon 1051).

7. Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum concerning an occult impediment is to be noted in a book to be preserved diligently in the secret archive of the Curia of which in canon 379 (canon 1047).

III. Regarding the forum for which the dispensation is valid. A dispensation granted for the external forum is valid also for the internal forum, but not conversely (cf. canon 202, § 1). Nevertheless canon 1047, after the words just cited, "Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum concerning an occult impediment is to be noted in a book to be preserved diligently in the secret archive of the Curia of which in canon 379"; after these words, I say, continues thus: "nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been granted only in the sacramental internal forum."

IV. Regarding cessation of power. Unless in their grant the industry of the person has been chosen, or something else has been expressly provided, habitual faculties granted by the Apostolic See to a Bishop or to others of whom in canon 198, § 1 do not vanish when the right of the Ordinary to whom they were granted has been resolved, even if he himself had begun to execute them, but pass to the Ordinaries who succeed him in governance (canon 66, § 2). The cited canon adds: Likewise those granted to a Bishop also belong to the Vicar General.

¹ Sacred Penitentiary, June 1, 1858.

1. Didacus and Aloisia sought from the Holy See a dispensation upon the impediment of consanguinity. The reason brought forward was that Aloisia was without dowry, and Didacus intended to marry her thus without dowry and at the same time to endow her sufficiently. The dispensation having been obtained, and the marriage having been entered, after quarrels arose with Aloisia, Didacus claimed that he should pass to other nuptials because of the nullity of the prior marriage, the invalidity of the aforesaid dispensation standing. For it had inadvertently been left unmentioned that Aloisia had a certain small dowry; and Didacus in reality had insufficiently endowed Aloisia before marriage, since he had assigned only the sum of 500 ducats for the children to be born from the nuptials soon to be contracted.

It is asked: What to the Case?

R. The dispensation was valid in the Case; and therefore the marriage was rightly contracted. Wherefore Didacus cannot marry another. For first, the dowry of Aloisia, considering her condition, was insufficient, and the reticence concerning it, made in simplicity without deceit, was not the cause of the concession, and consequently the concession was not invalid. It is the same that a woman be without dowry and that she be insufficiently endowed. De Iust., de Disp. matr., l. 3, c. 3, n. 20. The Supreme Pontiff is moved to succor a poor female petitioner who, since she either has no dowry or has an insufficient one, is in danger either of remaining unmarried with danger to the soul, or of being compelled to marry an unworthy or unequal man. Therefore, all deceit being removed on the part of the female petitioner, the Supreme Pontiff is equally moved to dispense, whether the petitioner has no dowry or has only a small and insufficient one. But that Didacus did not endow Aloisia in a competent quantity does not harm the validity of the dispensation, since when several causes are set forth, it is enough that the motive cause on which the Dispensation rests be true. Now the motive cause in the Case was that Aloisia had been without dowry. The other cause, that Didacus also wished to endow her, was only an impulsive cause, which does not render the dispensation null, and which besides Didacus at that time also set forth in good faith. S. C. C., July 4, 1722; Giovine, de Dispens. matr., Consult. Canon., v. 1, § 121; I. M. 1036, 1037.

2. "Whether the non-observance of the clause customarily appended in dispensations: some alms having been given according to the judgment of the Ordinary, imports the nullity of the dispensations?

R. Negatively." S. Poenit., June 10, 1876.

3. "The rescripts of the Sacred Penitentiary in matrimonial causes, when public incest has been present, contain at present the following clause: Scandal having been removed, insofar as it is present; especially through separation, if it can be done. In these most wretched times it not rarely happens that the separation of the petitioners cannot be obtained, either because they already have several children to be educated together, or because they can live nowhere else; and then it can scarcely be understood what other reparation of scandal ought to be exacted before the dispensation is granted. We therefore ask that the Sacred Penitentiary may kindly be willing to declare whether this clause, scandal having been removed, must so necessarily be fulfilled that, if it is omitted, the dispensation has been granted nullly.

R. Separation is to be preferred to other modes of reparation of scandal; if this cannot be done, the scandal is to be repaired, but the mode of repairing the scandal is remitted to the prudent judgment and conscience of the Ordinary, according to the requirements of each case. In the case in which separation has been omitted and the scandal has been repaired in another way, let him acquiesce; otherwise, if in some case he has omitted the reparation of scandal, let him be silent and conduct himself more cautiously in the future." S. Poenit., Apr. 12, 1889, Collect. S. C. de P. F. n. 1496, 1498; I. M. 1046.

4. "In the sheet of faculties which the Holy See grants to vicars apostolic, it is had thus: n. 10.º These matrimonial dispensations, namely 6, 7, 8, 9, are not to be granted except with the clause: provided that the woman has not been abducted, or if she has been abducted, that she is not in the power of the abductor; and in the dispensation the tenor of such faculties is to be inserted with expression of the time for which they have been granted. Now, in the time of persecutions which raged in some places, matrimonial dispensations were not even delivered in writing, but orally. But in later times, in dispensations of this sort, it has indeed been inserted that they are granted from the faculty obtained from the Holy See; but by some, neither was the time expressed for which the aforesaid faculty had been granted to the vicars apostolic, nor was the clause set forth: provided that the woman has not been abducted. But this gives rise to doubt because of what is found in Bullar. Bened. XIV, t. 2, pag. 223. It is therefore asked whether the aforesaid dispensations of this sort are licit, or at least valid?

R. The omission of the clauses does not harm the validity of the concessions, provided that in reality the woman has not been abducted, or, if abducted, that she is not in the power of the abductor." S. C. de P. F., Feb. 11, 1804, Collect. n. 1484, 1486, 1487, 1491, 1492, 1494; Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 10.º; Comp. Priv. Soc. Iesu n. 390.

5. "It has happened sometimes that, in the petitions which are made to the Holy See for matrimonial dispensations, it was set forth by the Ordinary of the male petitioner, through error, that the female petitioner belonged to the same diocese, whereas by origin and domicile she was of another diocese. Therefore, the favorable Rescript having been obtained, whether through the organ of this Sacred Penitentiary or through that of the Sacred Datary, the doubt has arisen concerning the validity or liceity of the execution. To remove it, humble supplication is made that it may deign to declare:

1.º Whether, considering the norms given by the S. U. I. on Feb. 20, 1888, the dispensation can be validly executed by the Ordinary of the male petitioner, who gave the testimonials, when through error it was said in the same testimonials that the female petitioner was of the same diocese, whereas both by origin and by domicile she belonged to a different diocese?

2.º Supposing that such a dispensation can be validly executed, can it also be executed licitly, without a new recourse to the Holy See?

R. To both, affirmatively; but if the error has been noticed, it must be corrected." S. Poenit., Feb. 6, 1895, M. E. v. 9, p. 1, p. 10.

6. Iulius, desiring to contract marriage with Iulia, his kinswoman in the fourth degree, seeks and obtains a dispensation, Iulia being unaware of Iulius's desire and of his petition for dispensation, since she was unaware also of the existing impediment.

It is asked: Whether the dispensation is invalid in the Case?

R. When the impediment necessarily affects both contracting parties, as do consanguinity and affinity, which cannot affect one only, it is enough that the dispensation be obtained or accepted by the other, so that it may benefit also the other who is ignorant. For dispensation extends to necessarily connected things. But the dispensation of a man for contracting with a woman is annexed to the dispensation of the woman for contracting with the man. And by the very fact that one of them seeks or accepts the dispensation, he becomes able to contract with the other. But this cannot be done unless each is made able. Therefore that dispensation will benefit the other who is ignorant. And it is confirmed, for when the marriage was void because of an impediment of this sort unknown by the other party, the spouse conscious of the impediment can, after obtaining its occult dispensation and without manifesting it to the other spouse, and without manifesting the impediment, simulatedly seek a renewal of consent in marriage.

But if the impediment were of one party only, because one only, for example, has vowed chastity; or if it were so common that it is entirely diverse in each, as if each had vowed chastity, then it is necessary that the one who is affected by the impediment, and if it is both, that both, accept the dispensation, although it can be sought and obtained without his mandate. The reason is that the dispensation is directly obtained for the one having the impediment; nor, when obtained for one, is it obtained by a certain necessary consequence for the other, as happens in the former Case. Therefore he who needs it must know it and accept it; and if each needs it, each must know it and accept it, speaking of the ordinary mode of dispensation.

Therefore, since in the proposed Case the discourse is of an impediment affecting both parties, namely of consanguinity, although the dispensation was sought and obtained while Iulia was unaware, nevertheless it also benefits her. Wherefore, if Iulius afterward manifests to her the desire of marriage, he will be able to contract marriage validly with Iulia, although neither the pre-existing impediment nor the obtained dispensation is manifested to her; and much more if, after the impediment has been manifested to her, the obtained dispensation is also manifested and is accepted by her. Sanchez, l. 8, d. 26; I. M. v. 1, n. 249; v. 2, 1044, 1050.

7. Flaminius, seized by love of Flavia, his kinswoman in the third degree, sought and obtained a dispensation from this impediment. But afterward, Flavia having been left, wishing to marry Flaminia, also his kinswoman, but in the fourth degree, he sought and obtained another dispensation, no mention having been made of the prior dispensation. The marriage having been entered, after two months Flaminia dies. Then Flaminius, without a new dispensation, marries Flavia.

It is asked: What to the Case?

R. The marriage of Flaminius with Flaminia is valid. For the dispensation obtained was valid. For the validity of this dispensation it was in no way necessary to express the other dispensation obtained before. For a prior dispensation obtained must be manifested in three cases. The first is when the case is expressed by Law. But by no law has it been provided that mention be made of a prior dispensation in the case set forth. The other case is when, the prior dispensation being kept silent, the Pontiff could not know the whole impediment upon which the dispensation is sought. But this is not verified in the Case. For the second dispensation does not regard the same impediment, nor does it tend to the same marriage. Sanchez, l. 8, d. 21. Besides, since the prior dispensation did not have the effect of an entered marriage, it is as if it had never been sought nor granted. The third case is when through the second dispensation another greater grace is sought, a grace already granted in that matter concerning which someone has already been dispensed. If someone, for example, having obtained a dispensation from a vow of chastity, marries a wife, and then, she having died, wishes to marry another, he is then bound to make mention of the prior dispensation obtained. Since, in the Case, the second dispensation was not in the same matter from which Flaminius had already first been dispensed, but upon a different matter, namely a different impediment of consanguinity and a different marriage, mention of the prior dispensation is not necessary, namely so that the Supreme Pontiff may understand how great a relaxation he is making upon this second marriage. Therefore the second dispensation is valid, no mention of the prior one having been made; and therefore the marriage is valid. De Iustis, l. 1, c. 4, n. 10 seqq., n. 31 seqq., n. 205 seqq.

But, the prior marriage having been dissolved by death, the prior dispensation is no longer valid; and therefore Flaminius cannot marry Flavia without a new dispensation. For a double dispensation, in the Case, which in reality has the effect of marriage, is contrary to the mind of the Pontiff. For it cannot be presumed that the Supreme Pontiff wished to grant a double dispensation from the impediment of consanguinity that would be valid, unless he granted each from certain knowledge. Certainly the prior dispensation was valid. But when the second dispensation was given to execution, then the prior one was already weakened and fell. For the execution of both of those dispensations is now a grace too exorbitant from the common law, too greatly wounding the law. Wherefore, if the Supreme Pontiff had known the prior dispensation when he granted the second, he would have revoked the first, or would have added other conditions by which so great an amplitude of concession would be restrained. The reason, besides, is "because although through the second marriage, for which the dispensation does not serve, he does not seem to renounce the dispensation, yet otherwise, I believe, through the obtaining of the later dispensation... Because, since these dispensations cannot stand together, but are repugnant as regards execution, through obtaining the later one the petitioner is seen to have renounced the prior one into the hands of the Pontiff from whom he obtained the later one... And thus he will no longer be able to use that one, but only the later dispensation... Finally, because granted that the mind of the petitioner was not to wish to renounce the prior dispensation, yet the Pontiff did not wish to grant a double dispensation, so that each would stand, and the petitioner could use either one at will. And if this were sought, he would certainly deny it as very discordant with reason." Sanchez, l. 8, d. 22, n. 19; I. M. 1038.

8. Aloisius, bound by a vow of chastity, obtained a dispensation for the sake of marrying. But afterward, agitated by scruples of conscience, he renounced the dispensation, with the mind of persevering in the vow.

It is asked: Whether, the renunciation of the dispensation having been made, it is lawful for Aloisius to marry?

R. If the mandate of the Pontiff concerning dispensing the vow was given to execution by the delegate, and after this execution Aloisius renounces the dispensation with the mind of persevering in the vow, he can no longer marry. The reason is that through a renunciation of this sort he himself reassumes the vow already dispensed, and obligates himself anew; and since the dispensation has already been given to execution, it is not valid to dispense Aloisius again from the vow. Indeed to renounce the dispensation of a vow imports nothing else than to return to the prior vow, or to be bound anew by that vow which through the dispensation was extinguished. But the dispensation was granted only for dissolving the first vow emitted before it, and by no means for invalidating also the vow emitted again after it. Sanchez, l. 8, d. 22; I. M. 1038.