Treatment of the concept of impediments in canon law
Impediments, CANONICAL.—I. GENERAL NOTION OF AN IMPEDIMENT.—The Latin word impedimentum signifies directly whatever embarrasses or hinders a person, whatever is an obstacle to his movements, and in this sense the baggage of an army was called impedimenta. Juridical language applies the term to what-ever hinders the free action of an agent, or to whatever prevents him from performing, or at least from performing regularly, any act that the law takes cognizance of. The impediment therefore affects directly the juridical capacity of the agent, restrains it, or even entirely suppresses it; indirectly it affects the action itself, which it renders more or less defective or even null. An impediment consequently produces its effect by reason of a defect; it ceases when the agent has legally recovered his capacity, whether that be by a dispensation or by his fulfilling the conditions requisite for the act he wishes to perform. The impediment, in other words, the restriction or suppression of the juridical capacity of the agent, may arise from natural laws, from Divine law, or from human law, ecclesiastical or civil; we may, however, point out that certain cases of nullity, certain defects of acts that the law takes cognizance of, are caused by the absence of an essential constitutive element; for example in the case of a contract imposed by force on one of the parties, there would be no impediment unless in a wide improper sense of the term. This general idea of impediments is applicable to all those acts in regard to which the law regulates the juridical capacity of the agents; for instance, acquisition of jurisdiction, contracts in religious matters, the sacraments. Canon law affords a multitude of examples. A layman, a heretic, an excommunicated person is incapable of acquiring spiritual jurisdiction; better known are the restrictions placed on minors, religious, children not yet emancipated, etc., in the matter of making contracts; finally, there are many legal obstacles affecting the capacity of the faithful to receive licitly or even validly, baptism, confirmation, penance, and particularly Holy orders and matrimony.
Canon law uses the word impediment in its restricted and technical sense, only in reference to marriage, while impediments to Holy Orders are spoken of as irregularities (q.v.). We may remark, however, that several real impediments or obstacles to the reception of Holy orders are not called irregularities: thus, women and unbaptized persons, who are by Divine law incapable of being ordained, are not termed irregular. But speaking of matrimony, the word impediment refers to all obstacles, whether arising from natural or Divine law. Another interesting fact is that whereas the word impediment has thus acquired a precise technical meaning in canon law, the cognate words impedire, impediens, impeditus, have preserved their wide grammatical signification and may be applied to other matters; so writers speak of those unable to go personally to Rome to be absolved from censures as impediti adire Romam, and the Constitution "Apost. Sedis" speaks of those who hinder (imp edientes) the exercise of ecclesiastical jurisdiction.
II. IMPEDIMENTS TO MARRIAGE, IN GENERAL.—The fundamental idea of an impediment to matrimony is contained implicitly in the well known prohibitions of Leviticus and some ancient canonical texts; in the latter may be discovered the basis of the celebrated distinction between diriment impediments which render a marriage null and void, and prohibitory impediments which only render it illicit; sometimes the canons of councils insist on the separation of the parties who have violated the law, which implies that the marriage was void; sometimes, on the contrary, they exact only an expiation or reparation, without dissolving the conjugal union, which implies that the marriage was valid though more or less in opposition to the law. But these ancient canonical texts do not give a complete list of impediments, much less a general theory concerning them. It is only at the end of the twelfth century that we find, for the first time, the use of the word "impediment" in its technical sense, together with a catalogue of matrimonial impediments. In his "Decree", Gratian neither speaks definitely, nor does he give a satisfactory list; nor does Peter Lombard in his "Sentences". About 1190 Bernard of Pavia uses freely the expression, which became classical, "impedit contrahendum et dirimit contractus", and further he enumerated the impediments: "stint autem quw matrimonium impediunt xiv", but his list is not definitive; the technical names of each impediment remain for some time longer unsettled. However the doctrine of the School soon becomes fixed and with it the terminology. The distinction between diriment and prohibitory impediments is sharply marked, and a more or less successful attempt is made to classify the diriment impediments. Their number is not yet determined, not because the doctrine is uncertain, but because several of them may be included under the same title. Certain canonists try to limit them to the quasi sacred number fourteen (twice seven); others reckon twelve, sixteen, or even more. The gloss of the "Decree" (Causa xxvii, q. 1, v° "Quidam", before can. i) says there are sixteen matrimonial impediments, fourteen of which are diriment; it enumerates them without order in the following distichs:
Votum, conditio, violentia spiritualis,
Proximitas, error, dissimilisque fides,
Culpa, dies vetitus, honor, ordo, ligatio, sanguis,
Quae sit et affinis, quique coire nequibit,
Additur his aetas, habitum conjunge furoris;
His interdictum subditur Ecclesiae.
Haec, si canonico vis consentire rigori
Te de jure vetant jura subire tori.
In spite of its insertion in the gloss, this enumeration was not adopted permanently, doubtless because it did not separate the prohibitory from the diriment impediments, and because the former class was incomplete. The list that was received almost universally, and which, with a few changes, still figures in most canonical treatises on marriage, and is followed step by step, by many authors including St. Liguori (Theol. Mor., I, VI, n. 1008), was composed by Tancred (1210-1214). It contains four prohibitory impediments separated from thirteen diriment:
Ecclesiae vetitum, tempus, sponsalia, votum, Impediunt fieri, permittunt facta teneri.
Error, conditio, votum, cognatio, crimen,
Cultus disparitas, vis, ordo, ligamen, honestas,
Dissensus, et affinis, si forte coire nequibis,
Haec facienda vetant connubia, facta retractant.
But after the Council of Trent, which created the impediments of abduction and clandestinity, these thirteen were increased to fifteen; the last hemistich, "si forte coire nequibis", was replaced by "si clandestinus, et impos"; and for abduction was added the hexameter "Raptave sit mulier, loco nec reddita tuto". Though this method of enumerating them is so common, it is not satisfactory, being somewhat confused. No official list of impediments has ever been promulgated, and indeed it would be very difficult to compile such a list, as there are many ways of reckoning the impediments improperly so called, all of which may be included under a defect of consent, such, for instance, as error, insanity, constraint, dissimulation and others. It is possible likewise to count in different ways the prohibitory impediments among which that of "mixed religion" must be included. Of the many definitions of matrimonial impediments formulated by canonists, we prefer that of D'Annibale (Summula, III, n. 428): "Any circumstance of which the law takes cognizance that is opposed to a licit or valid marriage."
Impediments have been classified and divided in many ways, of which the following are the more important. (I) The chief division is that which distinguishes between prohibitory and diriment impediment, the former rendering the marriage illicit, the latter making it void; we have already said enough about this. (2) They have been divided according to their juridical cause: some arise from natural law, as the different forms of defective consent, impotency, relationship in direct ascending or descending line; others arise from Divine law, which demands unity and perpetuity of marriage, thus forbidding polygamy and marriage after divorce; others, finally, while suggested by natural and Divine law have been created by ecclesiastical law. (3) A distinction must be made between absolute and relative impediments. The former forbid any marriage of the person on whom the impediment falls, for instance, impotency, Holy orders, etc., the latter forbid the marriage with certain definite persons only; such for example are relationship, crime, etc. (4) Impediments may be also public or hidden according as the fact giving rise to them is known or secret, or in other words, may be proved easily or with difficulty. Examples of public impediments are relationship, lawful affinity, Holy orders, etc.; hidden impediments are those arising from purely private and especially concealed facts, for instance, affinity arising from illicit intercourse, certain forms of "crime", etc. (5) A very practical division is based on the nature of the dispensation that is granted or refused by the church. Most of the impediments arising from ecclesiastical law are dispensed from with more or less felicity (cf. Lehmkuhl, "Theol. Mor.", II, n. 792). (6) Finally, it is important to distinguish impediments properly so called from those that are only improperly so termed. The former are those that arise from an absence of capacity to contract on the part of one of the individuals, who cannot enter into a valid marriage even if he performs all the customary external acts and has a firm intention of marrying. Such would be the case of a married man, who had obtained a divorce, he being thereby absolutely incapable of validly marrying another woman. Such also is the impediment of form, or clandestinity, which renders the contract null and void, if the requisite conditions of publicity have not been complied with, namely the presence of the parish priest of the' locality or his delegate, and of two witnesses; it is an impediment properly so called, though it does not act directly by affecting the personal capacity of the contracting party. On the other hand, impediments improperly so-called do not imply the juridical incapacity of the agent, but the absence of a due consent on his part, whether from want of knowledge, liberty, or will. In that case it is the contract that is nonexistent, because it lacks an essential element; wherefore, such impediments are not, properly speaking, created or established by the law, and are not matter for dispensation. They spring from the natural law in the sense that they are the application to Matrimony of the laws that regulate all contracts and arise from the very nature of things. Ecclesiastical law cannot intervene directly; it is limited to pointing them out and applying opportune measures to prevent as far as possible marriages affected by these different forms of defective consent.
Marriage is juridically a contract, and a Christian marriage does not cease to be a contract because it is a sacrament. Being a sacrament it is a sacred thing, and as such is subject to the authority of the church; and, being a contract, the church can establish impediments to matrimony, either personal or formal. Having the power to establish them, she can abrogate them, modify them, and, consequently, dispense from them in individual cases (see Marriage; Dispensation).
III. IMPEDIMENTS TO MARRIAGE, IN PARTICULAR.—The following is the list of the impediments of marriage arranged in what seems the most logical order, with the essential notions on each, except where reference is made to special articles.
A. Prohibitory impediments, that is to say, those which render a marriage illicit, but do not impair its validity. (I) Betrothal.—A valid engagement to marry, entered into by two individuals, constitutes an absolute, prohibitory impediment, that is, an obstacle to any other marriage; by plighting his troth, the man creates a correlative right on the part of the woman, and any other marriage would be a violation of that right (see Betrothal). (2) Vow. Such also is the case of a vow, not any vow whatsoever, but a vow of chastity, and moreover a simple vow, for a solemn vow of chastity constitutes a diriment impediment. The obligation by vow towards God is an obstacle to any marriage; consequently it too is an absolute prohibitory impediment (see Chastity. and Vows). (3) Mixed Marriage.—Whereas the marriage of a baptized person with an infidel is null and void, the marriage of a Catholic with a baptized non-Catholic is the object of a prohibitory impediment, mixed religion (mixta religio); it is therefore a relative impediment. For the dispensation in case of mixed marriages and the conditions attached to it see Mixed Marriage. (4) Vetitum Ecclesice, a prohibition, in the form of a precept, imposed by ecclesiastical authority on a particular individual, would also be a personal impediment if it had a general character; it affects only the capacity of an individual. This precept is imposed to delay a marriage until a given condition has been fulfilled, for instance, till the removal of the obstacle to a marriage arising from a preceding betrothal to another person. (5) Forbidden times (tempus clausum, tern pus feriatum) is only an impediment improperly so-called, because it does not affect the personal capacity of the contracting parties, and, because it prohibits, not the marriage itself, but only the solemn celebration of the marriage; although, in truth, it is used commonly as if it forbade the marriage. These forbidden periods, though formerly much longer, were reduced by the Council of Trent (Sess. XXIV, cap. x, "De Reform. Matrim.") to the two following times: from Advent to the Epiphany, and from Ash Wednesday to Low Sunday.
B. Diriment impediments, that is to say those that render the marriage null and void, form three groups: (I) Impediments properly so called, which are personal incapacities, some absolute, some relative. Two arise from the physical incapacity of the subject: impuberty and impotency. Puberty is the state of physical development requisite for generation. The age of puberty varies with the individual and the climate; the legal presumption of the Roman law fixed it at twelve years for girls and fourteen for boys. The church has followed this rule or presumption, but it has not made want of a fixed age an impediment properly so-called which would render the marriage void under every hypothesis. It is presumed that young people reach the age of puberty at twelve and fourteen; it is presumed that they do not reach it before this time; but if as a matter of fact they have reached it, and a marriage be necessitated by the circumstances of the case (quando malitia supplet cetatem), the marriage is valid without dispensation. Formerly real dispensations from this impediment were granted, but on the condition that the common life should begin only later. Impotency is the state of one who is incapable of normal sexual relations. It is clear that an impotent person cannot validly contract marriage since he is physically incapable of realizing its object. For this particular impediment we must refer to the technical treatises on the subject and limit ourselves to some conclusions. The impotency which is a cause of nullity is the incapacity of having conjugal relations (impotentia coeundi), not incapacity of engendering (impotentia generandi), in other words, sterility. No one is presumed impotent once he has reached the legal or real age of puberty; consequently, no one, except eunuchs, can be prevented by authority from marrying (Sixtus V, June 27, 1587). The different classifications of impotency, absolute or relative, antecedent or subsequent, perpetual or temporal, to be met with in various treatises, are of no practical importance now. Only perpetual antecedent impotency is a cause of nullity; nowadays it is seldom necessary to examine too closely into this matter, as all cases arising from it are treated as far as possible under the form of dispensations of non-consummated marriages.
Next we have an impediment based on the presumption of want of consent, abduction (raptus). In as far as it is an impediment, it is the incapacity of the abductor of contracting valid marriage with the woman whom he has abducted, until she has first been allowed to go free. Two impediments arise from religious obligations which exclude marriage with any person whosoever they are: A solemn vow (votum), that is to say, a vow taken in an order that has a solemn profession of its members, whether men or women; and Holy orders (ordo), that is to say, the sub-diaconate and major orders. Another impediment of a religious nature is that called disparity of worship (cultus disparitas); it renders void the marriage of a Christian with an infidel, that is, of a baptized person with one who is unbaptized (see Disparity of Worship). Next in order we have a previous matrimonial engagement (ligamen), an impediment rendered void any marriage of a married person, during the lifetime of the person to whom he or she has been validly married. The respect due to marriage has caused to be prohibited the union of persons who have attacked the sanctity of the marriage of one or other of the parties by killing his or her partner, or by committing adultery with a promise of marriage or an attempted marriage; that is the impediment of crime (crimen). (See Crime.)
Finally, respect due to family and kin forms the basis of the impediment of relationship (cognatio), which occurs in five forms: (a) natural relationship or community of blood (consanguinitas), which prohibits all marriages in the direct ascending or descending line in infinitum, and in the collateral line to the fourth degree or fourth generation; (b) alliance or affinity (affinitas), which establishes a bond of relationship between each of the married parties and the blood relations of the other, and forbids marriage between them to the fourth degree. Such is the case when the affinity springs from conjugal relations; but as canon law considers affinity to spring also from illicit intercourse, there is an illicit affinity which annuls marriage to the second degree only; (c) public decorum (honestas publica), a legal anticipation of affinity; those who will be related by the consummation of marriage are already looked upon as related when they are betrothed or have only ratified the marriage contract. This impediment is as extensive as affinity, if it springs from a reception of the Sacrament of Matrimony; if it arises solely from betrothal it extends only to the first degree; (d) spiritual relationship (cognatio spiritualis). Spiritual birth has been considered as producing a kind of relationship between those who took an active part in the rites of Christian initiation, baptism, and confirmation, and marriage between them is forbidden. The impediment arising from these sacraments has been restricted by the Council of Trent (Sess. XXIV, cap. ii, "De Ref. Matri."); it prevents the marriage of the sponsor with the child or with the child's parents, also the marriage of the minister of the sacrament with the person baptized or confirmed and with his parents. But we must remark that as far as the Sacrament of Confirmation is concerned there can be no question of the marriage of the minister; also as confirmation requires only one sponsor, who must be the same sex as the person confirmed, this impediment cannot arise between them; the only case therefore where it would occur is in a marriage of the sponsor in confirmation with the parent of the child, which would be null and void; (e) Lastly there is the purely legal relationship of adoption, with the prohibitions of marriage attached to it in Roman law; the church has merely accepted and ratified them.
(2) The second kind comprises the only diriment impediment that is based on a question of form, to wit, clandestinity.
(3) Next we have the impediments, improperly so called, which do not affect the capacity of the agent, the nullity of the marriage being caused by a defect of consent. This defect may arise from the intellect or the will; hence we have two classes. Arising from the intellect, we have: insanity; and total ignorance, even in confuso, of what marriage is (this ignorance however is not presumed to exist after the age of puberty has been reached); and lastly, error, where the consent is not given to what was not intended. All cases of error do not annul a marriage but only those that arise from an error regarding a person (error persons) or a quality affecting a person (redundans in personam). There is an error affecting a person that forms a separate class, namely, a mistake relating to his liberty (conditio servilis): a marriage with a slave who is believed to be free is null and void. Arising from the will, a defect of consent may be caused through deceit or dissimulation when one expresses exteriorly a consent that does not really exist; or from constraint imposed by an unjust external force, which causes the consent not to be free (vis et metus). Finally a consent, even real, is destroyed if to the contract be added clauses or conditions contrary to the essential elements of marriages, as divorce or adultery; but it must be noted that a mere concomitant intention is not a cause of nullity; not being expressed formally as a condition, it is presumed non-existent. It is clear that the impediments improperly so-called are as varied as the ways in which the validity of the matrimonial consent, psychologically considered, can be affected.