Originally published 1923–24
MARRIAGE LAWS OF THE CHURCH
By Stanislaus Woywod, O.F.M., LL.B.
The Diriment Impediments of Marriage
The term “diriment impediments” (from the Latin verb dirimire: to destroy) indicates that the impediments of this class are of such a nature as to destroy or annul any marriage that is contracted in spite of any one of these impediments. In our previous discussions on the Sacrament of Matrimony, we have explained that the Catholic Church has, by the ordinance of Christ, exclusive jurisdiction over the marriage contract between Christians, in all matters pertaining to the licitness and validity of that sacred contract. Contracts in reference to material affairs of life are drawn in conformance to law to cover the minutest details, and surely the Catholic Church is justified in regulating the conditions that govern the marriage contract, that contract which Christ raised above all others by conferring upon it the dignity of a Sacrament. The diriment impediments are laws which declare who can, or cannot, contract marriage. The incapacity to contract marriage may arise from the fact that both parties are by law incapacitated, or from the fact that one of the parties is prevented from making a binding marriage contract. In order to have a valid contract, both parties must be free in law to contract.
The diriment impediments are usually grouped by authors of Moral Theology and Canon Law into (1) impediments of the natural or divine law, and (2) impediments of the ecclesiastical law. Canon 1038 states: “The Supreme Authority of the Church alone has the right to authentically declare in what cases the divine law forbids or annuls a marriage.” The distinction between impediments of the divine law and ecclesiastical impediments is of importance if there is a question of a dispensation from an impediment, for the Church cannot dispense from an impediment of the divine law, but she can dispense from impediments created by her own authority. The distinction between impediments of the divine law and of the ecclesiastical law is also of importance if there is question of marriage between two unbaptized persons; for, as Canon 12 declares, “unbaptized persons are not held to laws which are purely ecclesiastical regulations.” This principle is to be kept in mind when married persons become converts to the Catholic Church.
The diriment impediments enumerated in the Code of Canon Law are, generally speaking, the same as those in force before the Code was published. A few important changes have been made which will be pointed out in the discussion of the individual impediments.
The Impediment of Age
A boy under sixteen years of age and a girl under fourteen cannot validly contract marriage.
Though marriage is valid if these years have been completed, the pastors of souls should dissuade young people from marrying at an earlier age than is commonly the custom in their respective countries. (Canon 1067.)
The former impediment of age has been modified by the Code of Canon Law. The old law ruled that a girl of twelve and a boy of fourteen could validly contract marriage. The Code raises the age to fourteen years for girls, and sixteen for boys. The requirements of the natural law are, that the girl and boy be sufficiently developed in the sexual organism of the body, so that from their sexual intercourse procreation of offspring will be possible, and that they have sufficient mental capacity to understand the nature of the marriage contract. The positive law of the Church goes further than the natural law by demanding absolutely the ages of fourteen and sixteen, so that the Church does not grant to young people under these ages the legal capacity of contracting marriage, even though they have the physical and mental requirements of the natural law before they become of legal age.
According to the Common Law of England, a boy of fourteen and a girl of twelve can contract a valid marriage. Generally speaking, the Common Law of England has been adopted in our country, but many rules of that Law have been changed by statutes which vary considerably in the different States. Many States fix the age of consent at twenty-one, for the male, and eighteen for the female. Marriage before the statutory age is, in some States, null and void; in others, it is sufficient ground for annulment at the instance of the parents of either party. Again, in some States marriage before the statutory age may be validly contracted, if the parties under age have the consent of their parents.
As has been said, the Code urges pastors to dissuade young people from marrying at an earlier age than is sanctioned by the general custom of good citizens of their respective countries. The statutory age of twenty-one, for young men, and eighteen, for young women, which obtains in many of our States, is generally regarded as the proper age for marriage in the United States. The importance of the marriage contract makes this age desirable as the minimum.
The Impediment of Impotency
Antecedent and perpetual impotency, either on the part of the man or the woman, whether known to the other party or not, and whether absolute or relative, annuls marriage by the very law of nature.
If the impediment of impotency is doubtful, either as to fact or as to law, marriage is not to be forbidden.
Sterility neither invalidates nor makes marriage illicit. (Canon 1068.)
Impotency and sterility have not been defined authoritatively by the Church. It is, therefore, difficult to give an accurate definition of either term. From various recent decisions of the Roman Congregations in cases involving impotency and sterility, some authors have drawn the conclusion that impotency exists only when the man and woman cannot have sexual intercourse in the sense in which this term is usually understood. There has been a decision that the loss of the womb and both ovaries in the woman does not constitute impotency, and that, therefore, the woman can contract a valid marriage. However, this decision is based on particular facts in a case, as are all decisions of this kind, and if the S. Congregation were not convinced that womb and ovaries were completely removed, the impotency would be doubtful, and in a case of doubtful impotency the right to marry prevails. It has been the unanimous opinion of canonists and moralists that natural impotency exists when the man and woman are not capable of having sexual intercourse, from which, per se, procreation of offspring is possible. The presence of the necessary sexual organisms in both man and woman, and the possibility of natural connection or of sexual intercourse, have always been considered essential for a valid marriage. We do not believe that the well established doctrine has been upset by the decisions rendered in a few cases, which seem to insinuate that the absence of the sexual organism in the woman does not render her impotent. As we have said before, these decisions are based on the particular circumstances of cases, and the facts may not have been sufficient to prove that the women had been completely deprived of the sexual organs.
Formerly, writers on Canon Law and Moral Theology held that in cases of doubtful impotency between two parties, marriage was not to be permitted, because the Sacrament of Matrimony should not be exposed to the danger of being frustrated. The Code teaches that doubtful impotency does not make marriage illicit, whether it be a doubt arising from the facts in the case, or a doubt as to the application of the law to the case. The natural right to marriage of persons apparently capable of entering into conjugal relations, prevails as long as there is no certainty that they are deprived of this right by some defect, rendering him or her impotent.
The Impediment of the Existing Bond of Marriage
He who is bound by a previous marriage, though it may not be a consummated marriage, cannot validly contract another marriage. The exception of the Pauline Privilege remains.
Though the first marriage be for any reason invalid or dissolved, it is unlawful to contract another marriage before there is legal and certain proof of the invalidity or of the dissolution of the first marriage. (Canon 1069.)
This impediment is established by the law of Christ, whereby polygamy is absolutely abolished among both Christians and unbaptized persons. As long, therefore, as the first valid marriage is in existence, a second marriage is impossible. Marriage is dissolved either by the death of one of the parties, or, in two cases, by dispensation. The dissolution of a marriage between two unbaptized parties, one of whom becomes a Christian, is possible under certain conditions in virtue of the Pauline Privilege. Canons 1120–1127 deal with this privilege. (We will consider this manner of dissolving a valid marriage in a future chapter.) The second case is that of a non-consummated marriage, in which the Holy See, for weighty reasons, grants a dispensation. We may cite a third case of dissolution of valid marriage, viz: the case of a non-consummated marriage, which is ipso facto dissolved by Canon Law if one of the parties takes solemn vows in a religious Order. The last two mentioned cases are spoken of in Canon 1119. (We will comment on them in our treatment of that part of the Code.)
Since an existing valid marriage is, by divine law, a bar to a second marriage, it is evident that in all cases of second marriage, the party who was once married and asserts that the former wife or husband is dead, must furnish proof of the death, because the pastor is not permitted to assist at the marriage unless he has proof that the parties are free in law to marry. Proof may be had from reliable witnesses, or from the death certificate of the parish of which the deceased was a member. Canon 1238 demands that the minister shall, after the funeral, mark in the Record of the Deceased, the name and age of the person, the names of the parents, or surviving husband or wife, the date of the death, the name of the priest who administered the last sacraments and what sacraments were administered, and the time and place of burial.
In cases where no direct proof of the death of the former husband or wife is available, the Holy See has given an instruction how to proceed. This Instruction is published in the Appendix to the Third Council of Baltimore. The mere fact of disappearance of either party, without any trace of his or her whereabouts, is not considered sufficient proof of death, no matter how many years the party has not been heard from. The Church does not follow the rule of Civil Law in this matter. In most of our States, a period of seven years, during which no trace has been found of the missing husband or wife, is considered sufficient proof of his or her death. The Church demands more positive proof than the Civil Law. The bishop is to consider all the circumstances of the case, and if he deems the circumstantial proof sufficient to create a moral certainty of the death of the party in question, he may give permission to the surviving party to marry again. If the bishop does not feel that he can safely give the permission to re-marry, he shall turn the case over to the Holy See, submitting whatever proof is available concerning the presumed death of the party in question.
The Impediment of Disparity of Cult
The marriage between a person baptized in the Catholic Church, or received into the Church from heresy or schism, with a non-baptized individual, is null and void.
If a certain party, at the time of marriage, was commonly held to have been baptized, or if his Baptism is doubtful, the validity of such a marriage must, according to the rule of Canon 1014, be upheld until it is proved with certainty that one party was, and the other was not, baptized. (Canon 1970.)
This Canon contains an important change of the former law on the Impediment of Disparity of Cult. Formerly, not only Catholics were bound by this impediment, but also all baptized non-Catholics. The Code now restricts this impediment to Catholics, that is to say, to all those who have been baptized in the Catholic Church, or who have been received into the Church, having been validly baptized in some non-Catholic religious denomination.
Marriages between baptized non-Catholics who were never received into the Catholic Church, and unbaptized persons, are not invalidated by reason of disparity of cult, since the Code of Canon Law came into force. This change in the law is of importance when married people become converts to our Church. In the case of a marriage between a baptized non-Catholic and an unbaptized person, the validity of the marriage will depend on the time of their marriage. If they were married before May 19, 1918, the date on which the Code became law, the Impediment of Disparity of Cult rendered their marriage null and void; if they were married on or after May 19, 1918, the disparity of cult does not affect their marriage.
The term “baptized in the Catholic Church” creates some difficulty, especially in cases where baptism was administered by lay persons. If for instance, a Catholic doctor or nurse secretly baptizes an infant of non-Catholic parents, because the child is not expected to live, and the child recovers, or, if Catholic parents have their infant baptized by a non-Catholic doctor or nurse in an emergency, can the infant, in either case, be said to have been baptized in the Catholic Church? There are authors who maintain that the infant, in both cases, is to be considered baptized in the Catholic Church. Again, if infants of non-Catholics, or of careless Catholics, have been baptized by the priest because the parents consented and because there seemed to be some guarantee that the children would be raised as Catholics, but if it happened that they grew up without any religious training, or were educated in some non-Catholic sect, are these children to be considered baptized in the Catholic Church? It seems not, for Canon 1099, speaking of the form of marriage states that such children, when marrying non-Catholics are not held to the Catholic form of marriage. Canons 750 and 751 rule that the children of non-Catholic parents are not to be baptized in the Catholic Church unless at least one of the parents or guardians consents, and not unless there is reasonable certainty or guarantee of the Catholic education of these children.
Canon 1070 states that a person who is commonly considered as baptized, or whose Baptism is doubtful, is to be considered baptized, as far as the validity of the marriage is concerned. The question frequently arises, in marriages between Catholics and Protestants, whether the Protestant was baptized, because many Protestant denominations do not consider Baptism necessary for salvation. If the fact can be ascertained that the Protestant party was baptized, and that the ritual of the non-Catholic denomination of which the party is a member, provides for valid Baptism, the non-Catholic may be considered baptized. Where the Baptism remains doubtful as to the proper use of matter and form, it is considered a sufficient Baptism in the matter of marriage. However, it is the practice of pastors in the United States to apply for a dispensation from the Impediment of Disparity of Cult ad cautelam, when it is impossible to ascertain the validity of the manner of Baptism administered to the non-Catholic. The Code does not demand this precaution, wherefore, the dispensation from the Impediment of Mixed Religion suffices in all cases where the non-Catholic is commonly considered baptized, and in all cases where the Baptism remains doubtful after due investigation.
In marriages between Catholics and unbaptized persons, Canon 1071 demands that the promises be made just as in mixed marriage. The promises are of greater importance in marriages between Catholics and unbaptized persons than in mixed marriage, for the reason that no dispensation from the Impediment of Disparity of Cult is valid unless the promises are made. Consequently, the marriage would be invalid without the promises, while, in mixed marriage, the promises are demanded for the licitness, not the validity, of the marriage.
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