Moral Theology Part 144

2802. Duties of the Pastor in the Examination of Engaged Persons.--(a) He should question both the man and the woman separately and prudently about their freedom to marry, even though he is certain that there are no impediments. He should inquire especially whether there has been a previous marriage, and should also ask specifically about any impediment that seems likely. About impediments of a defamatory kind he should not interrogate before others, leaving that matter if necessary to his doctrinal instruction or to the confessor. (b) He should ask both of them, and especially the woman, whether they have decided on marriage freely, without force or pressure from any person. But children who live with their parents should be asked whether or not they have obtained their parents' consent to the proposed marriage.

2803. Special Proofs of Freedom to Marry.--(a) Proof of Baptism.--A baptismal certificate should be presented by the parties (if baptized in another parish), even by one who is a baptized non-Catholic. If a certificate cannot be had, other proofs are necessary. In danger of death, the sworn testimony of the parties suffices; outside danger of death, the testimony of a reliable witness, or of the person himself, if he can remember his Baptism, or, it seems, a certificate of Confirmation or First Communion will do. If Baptism cannot be proved and there is a prudent doubt, it should be administered conditionally.

(b) Proof of Single State.--If it is manifest that a previous civil marriage was null and was dissolved by divorce, the proof of the facts suffices. If the husband or wife of a previous marriage has died, but the pastor has no personal knowledge of this, positive proof of the decease in the form of a public doc.u.ment or of sworn testimony of two or at least one reliable witness is necessary, and if the pastor cannot obtain these he must have recourse to the Ordinary.

2804. Matrimonial Impediments.--(a) Definition.--An impediment is a circ.u.mstance directly affecting the contract of marriage and rendering it illicit or invalid. Thus, an impediment differs from an unfitness that refers immediately to marriage as a sacred rite or Sacrament (such as lack of proper intention or a state of mortal sin), or that does not directly affect the parties (such as forbidden time).

(b) Division.--In reference to effects, an impediment is either impedient (i.e., one that forbids marriage under pain of grave sin but does not render it null and void) or diriment (i.e., one that not only forbids marriage, but also makes it null and void).

2805. Sinfulness of Marrying with an Impediment.--(a) If the impediment is certain, grave sin is committed; for deception and disobedience are committed in a grave and sacred matter, and, if the impediment is diriment, the marriage contract is made null. Great necessity, however, would sometimes excuse.

(b) If the impediment is uncertain, no sin is committed when the impediment is one of ecclesiastical law and the doubt is one of law, for in such a case the legislator removes the obligation (Canon 15); nor when the impediment is impotency (Canon 1068), in view of the fact that the general law of propagation of the race leaves a natural presumption against impotency, which can be overcome only by a certain impediment. It would be an intolerable hardship if marriage were made impossible by a doubt where proof is so difficult. There is a serious sin, however, in other cases, because one is either exposing the Sacrament to nullity or is refusing, contrary to a serious command of the Church, to seek a dispensation.

2806. The Impedient or Prohibitive Impediments (Canons 1058-1066).--(a) Vow.--The following simple vows make marriage illicit: the vow of virginity, that of perfect chast.i.ty, the vow not to marry, the vow to receive Sacred Orders, the vow to enter religious life, the simple vows of religion. A vow to abstain from the use of marriage is not against the substance of marriage, but it is difficult to keep in the married state; the vows to enter religion, or take Sacred Orders, or not to wed, are incompatible with marriage. Hence, the Church forbids one who has these vows to marry, unless the vow be first dispensed. Those who marry while bound by one of these vows sin gravely, and are held to keep the vow if this is possible or the other party's rights do not prevent.

(b) Legal Relationship.--In those countries where relationship from adoption makes marriage illicit, there is also an impedient impediment of Canon Law. The Church wishes, in so far as possible, to preserve harmony between her own law and that of the State. Hence, she includes in her Code the civil law regulations that forbid marriage to certain persons on account of the intimate relation that exists between them through civil law adoption. The law of some European (e.g., France, Germany, Switzerland) and South American countries have a prohibitive impediment of adoption, but in the United States, the British Empire, and many other countries adoption is no such hindrance to marriage.

(c) Mixed Religion.--Marriage between two baptized persons, one a Catholic and the other a member of an heretical or schismatical sect, is severely forbidden by the Church. Mixed marriages in themselves are opposed to divine and natural law, inasmuch as they offer an occasion for communication in false worship and a danger of perversion; and hence they have been disapproved from the very beginning of the Church (II John, X. 11; I Cor., v. 10; t.i.t., iii. 10). But the divine prohibition ceases if appropriate measures are used to safeguard the faith of the Catholic and the children, and the Church will grant a dispensation, though reluctantly and only for just and grave causes.

2807. Duties in Reference to Mixed Marriages.--(a) The Pastor.--A dispensation should not be sought unless there is first a sufficient reason, all things considered, and generally the reason should be the public good (such as the relative fewness of Catholics in a district, hope of conversion of the non-Catholic, avoidance of scandal).

Secondly, there must be guarantees given by the non-Catholic that the faith of the Catholic will not be interfered with, and both parties must promise that all the children will receive Catholic and no other baptism and education. Finally, these promises must be such as to produce moral certainty of fulfillment, and as a rule it should be required that they be given in writing. After the marriage has been celebrated the pastor is held both in charity and in justice to do what he can to have the promises faithfully lived up to.

(b) The Parties.--Neither before nor after the marriage in the Catholic Church is it lawful to have any non-Catholic religious ceremony (see 956 sqq.); and if the pastor knows that this has been done or will be done, he may not a.s.sist at the marriage without permission from the Ordinary, which is granted for a most grave reason (scandal being avoided). After the marriage the parties are bound in justice to keep the promises made, and the Catholic is held in charity to seek prudently, by good example and advice, to convert the non-Catholic.

2808. Marriages with Bad Catholics.--(a) If the bad Catholic is unworthy in the matter of faith, because he has notoriously given up the Church (even though he has not joined any other religion), or because he is a member of a forbidden society, there is a danger of perversion. In such a case the pastor may not a.s.sist at the marriage unless the Ordinary decides that there is a sufficient reason, that the danger of perversion is made remote, and that the Catholic education of the children is provided for.

(b) If the bad Catholic is unworthy in the matter of morals, because he is a public sinner (e.g., one who neglects the Easter duty), or notoriously under censure and therefore a person to whom the Sacraments must be denied, the pastor is confronted with the law that one may not coperate formally, even by a.s.sistance, in the profanation of a Sacrament. As the guilt of the unworthy person is public in these cases, there must be public reparation before the marriage can be sanctioned by the presence of the Church's representative. The reparation is to be made either by the sinner going to confession or by the censured person obtaining absolution. But since the priest's presence can be only a material coperation, it may be permitted by the Ordinary for a grave reason when the unworthy person refuses to comply with the conditions.

2809. Other Obstacles to Marriage.--Other obstacles which forbid marriage, though they are not strictly canonical impediments, are the following:

(a) valid engagement gravely forbids marriage with a third party. This is a natural obstacle which results from the very nature of a binding promise;

(b) special prohibition of the Church at times gravely forbids a particular marriage, as when the Holy See in granting a dispensation for a present marriage forbids a future marriage. If an irritant clause is added, the prohibition has the force of a diriment impediment. The Ordinary also may forbid a particular marriage for a time, as when there is suspicion of a secret impediment, or when great damage will likely ensue from a marriage. This prohibition is for a special case or time or person, and thus it differs from the impediments of the law;

(c) closed times (Lent and Advent) are the seasons when, on account of the penitential and mournful character of the liturgy then in use, the solemn blessing of marriage is not regularly permitted. This is not really an impediment, since marriage itself may be contracted at any time of the year, according to the general law.

2810. Diriment Impediments to Marriage.--The diriment or nullifying impediments to marriage are personal incapacities in a person which render him or her incapable, from divine or ecclesiastical law, of contracting marriage with anyone (absolute impediments), or of contracting marriage with a certain individual (relative impediments).

2811. The absolute diriment impediments are the following: (a) those that are due to a personal defect making one unable to promise with sufficient discretion (impediment of age) or to perform what is promised (impediment of impotency); (b) those that are due to a voluntary act which consecrates one to G.o.d with the obligation of perpetual celibacy (the impediments of Orders and vows).

2812. The relative impediments are the following: (a) that one which is due to an obligation to one's present husband or wife (the impediment of bond); (b) that one which is due to too great a difference between two parties (impediment of disparity of cult); those that are due to too close a kinship between two parties, whether natural (impediments of consanguinity and affinity) or like to the natural (impediments of public decency, spiritual kinship, legal kinship); (d) those that are due to a relationship caused by a crime that makes it unsuitable for two parties to marry. If one party is perpetrator and the other the victim, there is the impediment of abduction; if the two parties are accomplices, there is the impediment of crime.

2813. The Impediment of Age.--(a) Nature.--This impediment exists in males who have not completed their sixteenth year, and in females who have not completed their fourteenth year. These ages are set by the general law, because all parts of the world have to be considered and sufficient discretion may be presumed at those ages everywhere. But substantial ignorance even after those years invalidates consent, and moreover, in colder countries where development is slower, marriage is generally inadvisable before the parties are 18 and 16 respectively.

The marriageable ages according to the statute law in most of our States are 18 and 16 with parental consent, and 21 and 18 without it.

(b) Effect.--This impediment is of ecclesiastical law in so far as the precise determination of age is concerned, but of natural law in so far as the use of reason is demanded. Hence, the Church may dispense, and hence also the impediment as ecclesiastical does not bind the unbaptized, even when being underaged they marry Christians.

2814. The Impediment of Impotency.--(a) Nature.--Impotency is the inability to exercise the s.e.xual act in a way suitable for procreation.

The requisites for this act are _immissio membri virilis in v.a.g.i.n.am mulieris c.u.m seminis effusione_, and hence those are impotent who lack s.e.xual organs (such as the emasculated or spayed), or who on account of psychical or physical abnormalities are unable to have complete intercourse (e.g., anaphrodisiacs, some hermaphrodites, those who suffer from hypospadias, vaginism, etc.). Sterility, or the mere inability to procreate from s.e.xual intercourse (as in old persons), is not the same thing as impotency, and is not an impediment to marriage.

Authorities are not agreed whether or not the operations of male vasectomy and evariotomy produce impotency or sterility. But many regard the former operation as unlawful except for a most grave cause (such as the saving of life), since it takes away a power given by nature for the benefit of society, exposes the individual to very serious temptations, and opens the way to terrible abuses.

(b) Effect.--Impotency anterior to marriage and perpetual, whether in the man or in the woman, whether known to the other party or not, voids marriage from the law of nature itself, and hence is not dispensable.

But impotency that arises after marriage or that is only temporary does not invalidate, and impotency that is relative (i.e., in reference to one person only) does not nullify marriage except in reference to a determinate person. In justice to the other spouse, married persons who have an easily curable impotency should have this defect removed.

2815. The Impediments of Orders and Vows.--(a) Orders.--Those who are in Sacred Orders (priesthood, deaconship and, in the Latin Church, subdeaconship) cannot marry validly. The impediment is decreed by ecclesiastical law alone, and hence the Church has the power to dispense. One who was ordained through compulsion or in ignorance of the duty of celibacy, is permitted to marry, if he does not wish to ratify his ordination; but he then loses all right to exercise his Order (2235).

(b) Vows.--Professed religious with solemn vows or simple vows that annul marriage cannot marry validly. It is more probable that this impediment, in so far as solemn vows are concerned, is of divine right; but the Pope, as the Vicar of Christ, is able to dispense (see 2194, 2234, 2235, 1787 e).

2816. The Impediment of Bond.--(a) A person who is already validly married cannot marry again until the bond of the existing marriage is removed by the death of the other spouse or by dissolution. An exception is the case of the Pauline Privilege; but even then the bond of the first marriage remains till the second is contracted (see 2787 e).

(b) This impediment is of natural and divine law, and it binds all men, the unbaptized as well as the baptized. No dispensation can be granted from the impediment as long as it continues; and moreover those who would contract a second marriage must offer proof that the bond of the first marriage was non-existent, or that it has ceased. Nullity of a previous marriage must be established by canonical process (Canons 1986 sqq.); dissolution of an unconsummated marriage through vow or Papal dispensation is proved sufficiently by an authentic doc.u.ment; cessation of bond through death of consort must be demonstrated with moral certainty, if it is not manifest (see 2803). The procedure to be observed in cases of the Pauline Privilege is explained by commentaries on Canons 1120 sqq. of the Code.

2817. The Impediment of Disparity of Cult.--(a) A marriage of a Catholic (i.e., of a person baptized in or converted to the Catholic Church) with an unbaptized person is null and void. This impediment bars the marriage of a professed ex-Catholic with an infidel, but not the marriage of a non-Catholic with an infidel; and by infidel is understood here not only a non-Christian (such as a Jew), but also a Christian unbaptized or invalidly baptized. A person accidentally baptized by a Catholic is not considered a Catholic if born of heretical or schismatical parents and reared by them in their sect.

(b) This impediment as prohibitive is of divine ordinance, for the same reasons as in the case of mixed marriages (see 2806 c): "Bear not the yoke with unbelievers" (II Cor., vi. 14). But neither natural nor divine law nullifies such a marriage with unbelievers; for the substantial ends of marriage (i.e., procreation and education of children) can be had even in such unions, and very holy personages have contracted marriage even with pagans (e.g., Jacob with the daughters of Laban, Joseph with the daughter of Putiphar, Moses with the daughter of Jethro, Esther with a.s.suerus, St. Cecilia with Valerian, St. Monica with Patricius, St. Clotilda with Clovis, etc.). The Church, however, has made disparity of cult a diriment impediment on account of the special danger, and it grants no dispensation unless the precautions decreed for mixed marriages be observed (see 824, 2807).

2818. The Impediments of Kinship.--(a) Consanguinity.--Marriage is null when contracted between blood relatives, that is, persons descended from one another or from one common ancestor within certain limits. In the direct line consanguinity invalidates marriage between all ascendants and descendants, legitimate or natural, that is, between a man and all his female ancestry (mother, grandmother, etc.) and posterity (daughter, etc.), and between a woman and all her male ancestors and posterity. In the collateral line it invalidates to the third degree inclusively, that is, between a man and a woman whose parents are related as first cousins or even more closely. The degree of consanguinity between this man and woman is first, second or third, according as one, two or three generations separate them (i.e., both or the one farthest removed) from the nearest ancestor of both (see Canons 96 and 1076). Consanguinity is multiplied when two parties are descended from several common stocks. This impediment is of the natural law as regards the first, and probably all the other degrees of the direct line; for reverence due to parents forbids one to marry them.

Marriage between brother and sister is not opposed to the absolute or primary law of nature, but to the relative or secondary law (see 303); for natural inclination teaches that it is unbecoming for members of the same family to intermarry, and further the children of their unions are very apt to be weakly or defective. In other degrees consanguinity is an impediment of church law only, and may be dispensed for a good reason, but a more serious reason is necessary for nearer relationship.

(b) Affinity.--Marriage is null when contracted between relatives-in-law, or those who are kin by valid, even though unconsummated, marriage. But the impediment exists only between the husband and his wife's blood relatives, and vice versa. In the direct line it includes all degrees; in the collateral line it extends to the second degree inclusive. Hence, a widower is impeded from marrying all the lineal relatives of his deceased wife (her mother, grandmother, daughter, granddaughter, etc.), and the following of her collateral relatives: her sisters, her aunts, her nieces, her first cousins.

Affinity is multiplied by multiplication of the consanguinity on which it is based (e.g., when a woman is doubly related to one's deceased wife), and by successive marriages (e.g., when a woman is the sister of a man's two deceased wives). The impediment of affinity is justified by moral reasons--by the mutual reverence that should exist between those who are closely related by marriage, by the dangers to which their relationship would be exposed if they were able to marry, and by the good of society, which is promoted when marriage is not confined within to narrow a circle. But the impediment is entirely ecclesiastical, for the Church can dispense in all degrees, and the relationship is only an imperfect copy of consanguinity.

(c) Public Decency.--This impediment, also known as quasi-affinity, arises from an invalid, even though unconsummated, marriage, and from public or notorious concubinage; and it annuls marriage in the first and second degrees of the direct line between the man and the blood relatives of the woman, and vice versa. The reason for the impediment is the unbecomingness of marriage with the near relatives (i.e., the mother, daughter, grandmother, granddaughter of the woman, and the father, son, grandfather, grandson of the man) of a person with whom one has lived in putative marriage or concubinage. The impediment is less strict than that of affinity, and is of ecclesiastical law only.

(d) Spiritual Relationship.--This impediment nullifies marriage between a baptized person and the person who baptized him or her or who stood for him or her in Baptism. The minister and the sponsor contract a relationship of spiritual parenthood to the baptized person, since Baptism is a supernatural birth and the G.o.dparents are charged with the religious welfare of the G.o.dchild. Reasons of respect and of intimate relationship make marriage between such persons unbecoming, and hence the Church from early times has ruled against it,

(e) Legal Relationship.--Persons who in civil law are unable to marry one another on account of the relationship arising from legal adoption are also barred from marriage in Canon Law. The relations between an adopted person and the members of the family into which he is adopted are so close that human lawmakers have often felt it necessary to declare adoption an impediment to marriage.

2819. Matrimonial Impediments Produced through Misdeeds.--(a) Abduction.--There can be no valid marriage between a man who holds a woman under restraint in order to compel her to marry him, if she has been abducted by him or is violently detained by him in her residence or elsewhere. If the woman who has been carried away or who is held against her will marries unwillingly, the marriage is invalid according to natural law; if she marries willingly, the marriage is invalid from church law. Hence the impediment of abduction is of positive law only and does not oblige infidels (see Canon 1064).

(b) Crime.--There can be no valid marriage between the following: those who during a legitimate marriage have consummated adultery together and have mutually promised future marriage or have attempted marriage, even though only civilly (Canon 1075); those who during the same lawful marriage have consummated adultery together, and of whom one has committed conjugicide; those who have coperated physically or morally, even though they are not adulterers, to murder the spouse of one of them. The purpose of this impediment is to safeguard the fidelity and rights of married persons, and to punish those who resort to adultery or murder in the hope of a new marriage. The impediment is ecclesiastical and does not affect infidels.

2820. Duties of the Pastor After the Inquiry about Impediments.--(a) Dispensation.--If the pastor finds an impediment of natural or divine law (e.g., the bond of an existing marriage), or an impediment which is never dispensed (e.g., consanguinity in the first degree of the collateral line, notorious conjugicide, when there is no danger of death), he cannot proceed with the marriage. If he discovers another impediment, he must inquire whether or not there is sufficient reason for dispensation. For the impediments of occult crime, disparity of cult outside of mission countries, age, Sacred Orders and religious profession (also for neglecting the form of marriage), a grave reason is necessary to permit marriage; but for the remaining impediments, a less grave reason is required. The usual or grave reasons for dispensation include the public good (e.g., peace between peoples, prevention of serious litigations), a great private good (e.g., a suitable marriage offered to a woman who on account of age or locality can hardly find another such chance), great spiritual good (e.g., prevention of a mixed or civil marriage or great scandal, termination of open concubinage), great temporal good (e.g., means to support the family of a poor widow); but other and lesser reasons sometimes suffice, as when the woman is illegitimate, an orphan, deflowered, sickly, or homely, or the man needs someone to take care of him or of his small children from a previous marriage, or when the marriage has already been announced or will be of great advantage to the parents of one of the parties. In case of urgent necessity or of danger of death, the pastor and also the confessor or priest who a.s.sists at the marriage are empowered to grant certain dispensations; in other cases dispensation can be granted only by the local Ordinary or by the Holy See. The pet.i.tion for a dispensation must state the facts truthfully, but must conceal the ident.i.ty of the pet.i.tioner when the impediment is occult. In executing a dispensation one must observe the conditions laid down by the superior who granted it (see commentaries on Canons 1043 sqq.).

(b) Publication.--Even though it is morally certain that there is no impediment, the banns of marriage should be proclaimed beforehand and in the place where the parties have their domicile or quasi-domicile (or residence, if they are _vagi_), and also, if necessary, in other places where they have lived. This is a grave duty, since its purpose is to ensure the validity and lawfulness of marriages. If it is morally certain that there is no impediment, the Ordinary may dispense for a good reason (see commentaries on Canons 1022 sqq.).

2821. After the Examination and Proclamation.--(a) If it is certain that there is an impediment, the procedure will be that given in 2820 a; (b) if it is doubtful whether there is a diriment impediment, the matter should be investigated more fully, but without defamation of the parties, and if the doubt remains, the question should he submitted to the Ordinary (see above, 2805 b); (c) if no impediment, certain or doubtful, has been discovered, the pastor should approve the parties for marriage.

2822. Duties of the Pastor as Regards the Religious Instruction of the Engaged Couple.--(a) The pastor should require those who are not confirmed to receive Confirmation before their marriage, if they can do this without serious inconvenience.

(b) He should instruct the parties in the essentials of Christian doctrine, if they are ignorant in these matters (see 920 sqq.), and he should point out to them the nature of marriage as a contract and as a Sacrament, its purposes and properties, the grace it confers and the conjugal and parental duties it imposes, the necessity of preparing for the Sacrament and of receiving it in the state of grace. He should also speak about the impediments, so that the couple may understand the disqualifications for a valid and lawful marriage; but this should be done prudently, so as not to shock the innocent or to help others to evade the law. But ignorance of the Catechism is not strictly an impediment; and if the parties are unwilling to take instruction, they should be married without it. In a mixed marriage it is often very useful to give the non-Catholic a short course in Catholic teaching, and all couples who are preparing for marriage would do well to read some of the good works prepared especially for the use of engaged or newly married people. The Code requires of pastors that in their sermons they instruct the people on marriage and exhort them to avoid mixed marriages and marriages with the unworthy (Canons 1018, 1064, 1065).

2823. The Pastor and the Duties of Engaged Couple.--The pastor should also inquire about duties owed by the couple to others.

(a) Duties to Parents.--He should seriously admonish minors subject to parental authority not to marry without the knowledge or against the reasonable wishes of their parents. If the parents are opposed to the marriage, the pastor should decide from the circ.u.mstances whether the opposition is justified or not; if one parent only is unwilling, the wishes of the father _per se_ have preference over those of the mother, as he is the head of the family. If the engaged couple will not heed the pastor, he is seriously bound to refuse to marry them until the case has been presented to the Ordinary for decision (Canon 1034).

(b) Duties to Civil Law.--The State has no power over the Sacrament of Matrimony, its bond, or its inseparable temporal effects (such as the rights and duties of spouses, legitimacy of children and the like), but it is competent in reference to merely civil effects and conditions, which are temporal circ.u.mstances separable from the substance of marriage. Hence, those who are getting married should comply with civil formalities that do not trespa.s.s on church rights, such as registration or marriage license.