canon law of marriage 2 copy 5

7/27/2019 Canon Law of Marriage 2 Copy 5

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Canon law of marriage

Indissolubility of Marriage

In 406 two Synods of North Africa, called the 11th Council of Carthage stated, we decree that

according to the e!angelic and a"ostolic disci"line neither a husband dismissed by his wife, nor

a wife dismissed by her husband may marry another# but that they are to remain as they are or to

be reconciled to one another$ if they des"ise this law they ought to be sub%ected to "enance$ and

on this sub%ect a im"erial law out to be "romulgated$ the canon&s teaching on indissolubility

a""ears to be absolute i$e$ it does not allow for any e'ce"tion$ this is im"ortant because they was

and still is, a debate o!er Matther 1()( which has *esus saying, Now i say this to you) anyone

who di!orces his wife+ I am not s"eaing of an illicit marriage+ marries another is guilty of

adultery$ the e'"ression illicit marriage is a translation of the -ree word "roneia.

/$ it is "ossible to translate the this word as adultery$ thus the te't from Matthew could mean that

anyone who di!orces his wife and marries another is guilty of adultery e'ce"t in the case of him

di!orcing his wife because she has committed adultery$ but this -ree word "orneia can ha!e at

least three other meanings) a relationshi" that is not really a marriage because of some legal

im"ediment# a betrothal# an incestous union which is not a true marriage$ in all these cases the

man would be able to di!orce his wife and marry another without being guilty of adultery for the

sim"le reason that his first marriage was not a real marriage$ owe!er we translate the word"orneia, the canon from the 11th cough of Carthage does not refer to any e'ce"tion to the rule

that a di!orced "erson may not remarry$

In (0s, the Council of 2riuli was con!ened in northweast Italy$ 3he 10th canon of the council

e'"licitly teaches that the bond of marriage is indissoluble$ it also states that there is not

e'ce"tion to this rule, not e!en in the case of adultery$ with regard to Matthew&s gos"el the canon

states that a sudy of Saint *erome shows that the gos"el teaches that a man whose wife has

committed adultery is free to dismiss her, but he must not remarry because his first marriage still

e'ists$ ence there was no e'ce"tion at all to the indissolubility of marriage$

In summery, from within the church of the oman 5m"ire, there emerged slowly two "rinci"les

about marriage and consent$ the first is based u"on oman ci!il law, namely that consent maes

marriage$ thus marriage does not begin with consummation, or the rece"tion of a "riest&s


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blessing$ the second "rinci"le namely that once marital consent has been gi!en it cannot be

withdrawn generally disagreed with oman ci!il law$ this second "rinci"le reaffirms that the

understanding that marriage is indissoluble$ 5!entually the church authorities made it clear that

this indissolubility does not allow for e'ce"tions such as cases in!ol!ing adultery$

Archbisho" Incmar of heims and his em"hasis on consummation$

hen "o"e Nicholas 1 wrote his re"ly to the 7ulgarian church he has a !ery im"ortant

contem"orary Archbisho" incmar of heims, who bel office from 849 until his death in 88:$

hile ;o"e Nicholas was u"holding the centrality of consent alone with regard to the !alidity of

marriage, incmar was teaching that marital consent must be followed by se'ual intercourse

without which the marriage is incom"lete$ in his time there was a marriage case in which he was

ased to gi!e a theological %udgement$

the case in!ol!ed A


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s"ouses do not a!ail themsel!es of each other maritally+ that is if the union of the se'es has not

followed u" the marriages$

1:th century 3rance) Marriage is centred on >o!e and created by Consent$

?es"ite Archbisho" incmar&s em"hasis on the role of se'ual intercourse within marriage, most

of the Church&s tradition acnowledged that it is the consent of the cou"le that brings a marriage

into e'istence$ this understanding had been "resent in the oman 5m"ire before Christ and was

ado"ted by the Church though out the 5m"ire$ 5!en in the -ermanic regions consent came to be

understood as the factor necessary to bring a marriage into e'istence although e'ternal "roof was

re


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the free "arty, the free "arty lost his status and became a "erson of a lower ran$ 2or I!o true lo!e

could not wish the other to lose their status of being free hence the marriage could not stand$

howe!er if the free "arty nows of the ser!ile ran of the other at the time of marriage the

marriage after consent holds good$ but if a free man has taen a sla!e girl in marriage, he does

not ha!e the freedom to dismiss her if, first nowing her condition and consenting, they ha!e

contructed marriage because consent maes marriage not intercourse$ the whole of I!o&s

argument is based u"on the "rinci"le of lo!e and so "uts lo!e at the centre of marriage$

ugh of Saint @ictor) Consent and consummation are im"ortant but only consent is necessary$

In his wor on the !irginity of the blessed !irgin Mary, in which he u"holds both the !irginity

of Mary as well as the fullness of her marriage he ass a rhetorical


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allies to all married cou"les including Mary and *ose"h$ hat then follows is that the husband

and wife consent to intercourse$ they do not ha!e to, but if they do then intercourse follows$ In

the case of Mary and *ose"h ugh states that this did not ha""en$ ence ugh u"holds the

!alidity of the marriage of Mary and *ose"h while maintaining the !irginity of Mary$ Intercourse

is de"endent on marriage and not the other way round$ ugh regards Mary&s marriage to *ose"h

to be a more genuine and holy marriage because it was held together by the bond of charity and

not by conscu"icence of the flesh or by the flame of lust$

ugh understands charity and lo!e to be central to marriage$ ugh acnowledges that inercourse

within marriage is a sacrament of the relationshi" between christ and his church, that is, it

signifies it and share in it$ but he belie!es that the sacrament is greater in the realm of lo!e$ the

%oining of hearts shares in the union of god and the soul$ 3he lo!e in marriage according to ugh

does not ha!e to be se'ual although their fellowshi" may find e'"ression in se'ual union$ when

it does it is a sacrament of the bond between christ and his church$ 2Br ugh thus marriage is far

more than a lawful occasion for se'# it is a lo!ing union between a man and a woman$ it is a

lo!ing community in which each s"ouse sacrifices himself or herself for the other$ this sacrifice

in!ol!es the whole "erson, body, heart, s"irit and soul$ In his wor &on the sacrament of

marriage&, he gi!es a definition of marriage) marriage is that fellowshi", which is consecrated

by the co!enant of mutual es"ousal when each by free "romise obliges himself or herself to the

other so that from then on neither may switch to the fellowshi" of another while the other other

s"ouse is ali!e, nor may he or she se"arate from that fellowshi" which is mutually fi'ed$

marriage thus is a fellowshi" brought about by mutual consent of the cou"le$ consent is

necessary and sufficient for the e'istence of a marriage$ ugh em"hasises the dimension of lo!e

within marriage in line with Augustine&s !iew that marriage is not good solely because of the

"rocreation of children but also because of the fellowshi" or com"anionshi" that e'ists between

the cou"les$ in marriage the holiness of the sacrament is of far more !alue than the fruitfulness

of the womb$ thus hugh regards marriage without children to be still a marriage$ If one s"ouse is

unfaithful the marriage does not cease to e'ist$ owe!er the third good i$e$ the good of the

sacrament must a""ly to all marriages, because e!ery marriage is essentially a fellowshi" which

is a sacrament of the bond between -od and the soul$ if this good should be absent, then it must

be because there is no marriage$


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from the definition of marriage used by ugh it must be noted that the cou"le&s mutual consent

binds them together for life$ their consent gi!es rise to the indissolubility of their marriage$ this

"ermanent fellowshi" is therefore a sacrament of the "ermanent bond between -od and the soul$

3hus ugh is arguing that it is a sacrament because it is indissoluble not that it is indissoluble

because it is a sacrament$ only the consent of christians can "roduce indissoluble marriages$

;eter >ombard) the "innacle of consensual !iew of marriage$

;eter >ombard further interrogated the issue of consent$ he made a distinction between consent

about the future which is seen in the engagement of those who want to get married and consent

about the "resent seen when they actually get married$ marriage is brought into e'istence by

consent about the "resent$ for the efficient cause of marriage is consent, not without


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-ratian introduced consummation into the consensual !iew of marriage$ e brought the two

schools of thought we s"oe of earlier with the conclusion that ma triage begins with the consent

of the marriage "artners# this is an initiates marriage$ but the marriage is com"leted by the se'ual

intercourse# this is a confirmed marriage$ 2or -ratian se'ual intercourse is so im"ortant within

marriage that its natural im"ossibility as a result of im"otence means that there can be no

marriage at all$

-ratian also s"eas of two unba"tised marrying with one later con!erting recei!ing ba"tism$ if

the other s"ouse refuse to li!e with him or her because of his or her new state the christian "arty

is free to li!e and marry a christian$ this is the ;auline "ri!ilege$

in summery for -ratian it is se'ual intercourse which com"lete marriage maing it an

indissoluble sacrament$ Ith -ratian marriage is reduced to the s"ouses ha!ing se'ual rights

o!er each other$ as a result im"otence becomes a serious obstacle to entering marriage$ -ratian

gi!es a strict inter"retation of Matthew 1()(, allowing no e'ce"tions to the rule against di!orce

and remarriage$ des"ite this he inter"rets ;aul broadly "ermitting a con!ert to christianity who

was legitimately married to di!orce and remarry should the unba"tised "arty refuse to remain$


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3he Council of 3rent and Marriage

3he 16th century saw the church confronted by may criticisms$ 3he ;rotestant reformation was

seen to gi!e rise to the necessity of affirming that marriage is one of the sacraments instituted by

Christ$ 3he church&s teaching on monogamy was being uther taught that such "ermission was

necessary for !alidity$ 3ametsi goes on to say that for good reasons the church has forbidden

children to marry without their "arents& "ermission$ that is, although such marriages are !alid,

they are unlawful$ ?es"ite its re%ection of >uther&s "osition regarding the marriage of children,

3ametsi does acce"t that clandestine marriages can gi!e rise to serious abuses$ therefore, as

agreed by the debate, it "ro"oses that in future all marriages be "ublic$ 3ametsi re


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is a!ailable for a "eriod of a month$ It allows the e'change of consent in front of two witnesses

alone$

In summery, des"ite the "ractical "roblems with 3ametsi, the Council of 3rent managed to clarify

the church&s teaching on marriage$ It made it clear that the church had %urisdiction o!er marriage

because it is a s"iritual matter$ Marriage was one of the sacraments instituted by Christ$ -I!en its

%urisdiction o!er marriages the Church could thus define im"ediments which "re!ented

marriages as well as dis"ense from them$3rent u"held the ancient teaching that consent made

marriage$ it howe!er taught that mutual consent made marriage but taught that the church had

authority to determine how this consent was to be e'changed$

3he 16th century e'tensions to -ratian&s ;auline ;ri!ilege$

the 16th century gra""led still with the


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be ba"tised and enter the catholic church it was necessary for him to ee" his first wife and

dismiss the others$ but what if he could not remember which was his first wife ;o"e ;aul 111

issued his a"ostolic constitution Altitudo which ga!e a solution$ 3e holy 2ather confirmed the

teaching that the man should ee" his first wife$ in cases where he could not remember his first

wife he was free to "ic any one of his wi!es and dismiss the rest$ the ;a"al solution has many

conse


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3he 1(1 Code of Canon >aw

3he 1(1 code of canon law "romulgated by ;o"e 7enedict E@ and assumed the force of law

the following year$ Canon 101: referred to marriage as a contract. contractum matrimonialem/$

it also stated that a marriage between ba"tised "ersons must always be a sacrament$ canon 101D

stated that the "rimary end of marriage was the "rocreation and education of children$ it went on

to say that the secondary end was mutual hel" and the remedy for concu"iscence$ thus marriage

has the "rimary "ur"ose of generating and educating children$ Its secondary "ur"ose is that it

enables the s"ouses to hel" each other as well as "ro!iding them with a legitimate conte't in

which they can engage in se'ual acti!ity$ canon 101D$1 is in stac contrast with St Augustine&s

understanding that marriage is for the intimate friendshi" between a man and woman a

friendshi" in which lo!e and charity are shared, a friendshi" which e'ists from the moment they

marry and is not de"endent u"on their ha!ing children$ the canon does not allow for the french

tradition of the 1:th century and its em"hasis on lo!e within marriage$ canon 101D$: e'"lains

that the essential "ro"erties of marriage are unity and indissolubility$ it also notes that in christian

marriages these "ro"erties ac


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children$ to gi!e consent one re


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conciliar document&s teaching on lo!e$ it says that se'ual intercourse allows such lo!e to be

e'"resses "hysically$ As intercourse must be o"en to children$ then it can be said that marital

lo!e is ordered toward children$ 3he article also states that this lo!e must embrace the whole

"erson+ body and mind$ 2urthermore it must embrace the "erson at all times both good and bad$

3hus it is always "resent in an e'clusi!e way$ Conse


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3e 1(8D CBde of canon >aw

Nature of Marriage

Canons 1099 and 1096 both consider the !ery nature of marriage$ Canon 1099 is based u"on

101:)1 and 101D$1 of the 1(1 code $ Canon 101:$1 s"eas of christ ha!ing raised marriages of

ba"tised s"ouses to the le!el of a sacrament$ canon 101D$1 s"eas of the "rimary and secondary

ends of marriage$ Canon 1099 is also based u"on >umen -entium 11 and 41, A"ostolicam

actuositatem 11 and -S 48$ Article 48 of -S describes marriage as the intimate sharing of

marital life and lo!e$

the writing of the 1(8D code went through many drafts$ 3he 1(66 draft of what e!entually

became canon 1099$1 stated that marriage is an intimate union of the whole life between a man

and a woman which of its !ery nature is ordered to the "rocreation and education of children$

owe!er unlie -S 48, the draft omits any reference to marital lo!e$ 3hose drafting where faced

with the "roblem that lo!e is traditionally not a canonical term# it is internal to "eo"le and so

difficult to measure$ 7ut so is marital consent, to which, it will be seen, the marriage canons do

refer$ the first "rinci"le of re!ision was that the code has to be %uridical in nature$ >o!e was not

regarded as a %uridical conce"t, so it was omitted$ ence the draft canon&s descri"tion of marriage

only s"eas of the intimate sharing of life and not life and lo!e$s

-S 90 describes marriage as a whole manner and communion of life$ while the canon calls it

an intimate union of the whole of life$ there are two "articular similarities$ first the

communion or union of the man and woman is said to be of life$ it is a sharing of their daily

li!es$ second, this communion in!ol!es the whole of life that is, it in!ol!es e!ery as"ect of daily

life at e!ery le!el$ this union is not limited either in sco"e or in de"th$

3he 1(66 draft maes reference to "rocreation and education of children showing that !ery early

on in the "rocess of re!ision these dimensions of marriage were regarded as so im"ortant that

they had to be included in the descri"tion of marriage$ 3hus in accordance with conciliar

documents afore+mentioned, the canon needed to stress that marriage is the conte't in which

children are born$ without these children, neither society nor the church on earth will ha!e a

future$ Moreo!er the education of these children is !ital if they are to be good members of


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society and the church$ In "articlear unless they are educated in the faith, they will be ignorant of

the means of sal!ation, as well as their role in the churchmission$

3hus, the 1(66 draft indicates that the "rocreation and education of children is im"ortant with

regard to marriage$ the draft does show howe!er, that there is no intention of re"eating the

contro!ersial teaching of canon 101D$1 of the 1(1 code which stated that the "rocreation and

education children is the "rimary end of marriage$ 3he draft is faithful to -S 90 which states

that the em"hasis on the "rocreation and education of children is made while not underestimating

the other ends of marriage$ Although it is accurate to say that the final !ersion of Canon 1099$1

of the 1(8D code uses canon 101D$ 1 of the 1(1 code, as a source it is more accurate to say that

it re"laces it$

In 1(, the draft for canon 1099$1 was re!ised$ it states marriage co!enant by which a man

and a woman establish between themsel!es an intimate communion of their whole life and which

of its own nature is ordered to the good of the s"ouses and to the "rocreation and education of

children, has between the ba"tised been raised by christ the >ord to the dignity of a sacrament$

this draft is closer to the council&s understanding of marriage than the one in 1(66$ it incor"orates

the term co!enant from article 48 of -S$ It also uses the worm communion from -S 90 as

o""osed to the term union$

3he draft introduces the conce"t of the good of the s"ouses. bonus coniugum/ as one of the ends

of marriage$ 3his e'"ression could also be inter"reted to mean &the well being& of the s"ouses$ Its

insertion is connected with what canon 101D$1 of the 1(1 code called the secondary end of

marriage$ 3his canon desrcibed the secondary "ur"ose of marriage as mutual hel" and a remedy

for concu"iscence$ these elements are absorbed into the more general e'"ression &the good of the

s"ouses&$ 3his new term is also o"en to certain conciliar teaching of >umen -entium 11 for

e'am"le which says that cou"les are to hel" each other attain holiness$ Also -S 48 states that

marriage is to hel" in the "ersonal and s"iritual de!elo"ment of the members of the family$ 3he

e'"ression 7onum Coniugum is sufficiently broad and e!en !ague enough to include many

as"ects of marriage that ha!e not found their way directly into the canons$ for e'am"le, marital

lo!e could fall under this new heading$ Certainly the e'"ression 7onum coniugum seems to be

the closest the com"liers of the new code comes to s"eaing of lo!e$ 3hey were aware that the

breadth in meaning of this term would allow ecclesiastical %udges to de!elo" its inter"retation$


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In the 1(1 code, canon 101:$1 ga!e the traditional teaching that the marriage of ba"tised

s"ouses is a sacrament$ the 1( draft concludes by reacting this$ In doing so the draft is faithful

to -S 48 as well as Casti Connubii and Fmanae @itae$ 3he final !ersion of canon 1099$1 as

"romulgated reads 3he marriage co!enant by which a man and a woman establish between

themsel!es a "artnershi" of their whole life, and which of its own nature is ordered to the good

of the s"ouses and to the generation and education of children, has, between the ba"tised been

raised by christ the >ord to the dignity of a sacrament$ the ma%or difference between this final

!ersion and the 1( draft is that marriage is no longer described as a communion of the whole

life of the man and woman but as a "artnershi" or sharing. consortium/ of their whole life$ the

main reason for changing is that the word communion is used elsewhere in the code with other

meanings$ 3hey decided to use another word in order to a!oid ambiguity and confusion$ for e$g$

canon (1: s"eas of oly Communion meaning the 5ucharistic s"ecies and canon DDD$: tals of

full communion in the sense of ecclesiastical unity$

the first "aragra"h of 1099 lie 101: of the 1(1 code says that marriage of the ba"tised is a

sacrament$ the second "aragra"h follows this by stating conse


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canon said that the matter was a doctrinal one and not a canonical one$ thus, unless the official

doctrine were to change, the canon would ha!e to retain its traditional meaning$

Canon 1096

3he essential "ro"erties of marriage are unity and indissolubility$ in christian marriage they

ac


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irre!ocable co!enant mutually gi!e and acce"t one another for the "ur"ose of establishing a

marriage$ the canon gi!es the broadest definition of consent unlie its "redecessor canon 1081$:

of 1(1$ it sim"ly states that marital consent in!ol!es the mutual gi!ing and acce"ting of the

s"ouses for the "ur"ose of creating a marriage$ unlie the 1(1 code&s 1081$: this canon does

not limit consent to %ust the se'ual side of marriage$ the 1(1 says matrimonial consent is an

act of the will by which each "arty gi!es and acce"ts a "er"etual and e'clusi!e right o!er the

body, ordered toward acts which are of themsel!es a"t for the generation of children$

the 1(8D&s broader definition of consent as seen in 109 "ermits an a""reciation of marriage that

is wider and dee"er than %ust a consideration of the se'ual$ the new definition a""lies also to

older cou"les who are beyond child bearing who ha!e married for com"anionshi"$ the broader

definition s"eas of marriage as an irre!ocable co!enant$ this means that marriage is continuous$

the use of the word co!enant means that marriage in!ol!es the %oining of two li!es in their

entirety$ thus marriage in!ol!es the ongoing sharing of of e!ery as"ect of life$

Canon 1061

while canon 1061 introduces the role of consent in creating a marriage canon 1061 introduces

the conce"t of consummation$ its first "aragra"h "ro!ides a fundamental distinction between a

non+consummated marriage and a consummated one$ canon 1061$1 concerns a !alid marriage

between two ba"tised "ersons$ from canon 1099 this marriage is considered to be a sacrament$

canon 1061 describes the marriage as ratified. datum/ if it has not been consummated$ if on the

other hand it has been consummated then it is ratified and consummated. ratum et

consummatum/$ canon 1061$1 in full reads, a !alid marriage between ba"tised "erson is said to

be merely ratified, if it is not consummated# ratified and consummated if the s"ouses ha!e in a

human manner engaged together in a con%ugal act in itself a"t for the generation of offs"ring# to

this act marriage is by its nature ordered and by it the s"ouses become one flesh$ Canon 1061

still em"hasises the se'ual dimension of marriage to the detriment of all the other dimensions$ as

was already mentioned Saint augustine said that marriage is good "rimarily because of the

fellowshi" between the s"ouses$ it is within this fellowshi" that lo!e and charity are e'changed$

It has already been seen that I!o of Chartres, ugo of Saint @ictor and ;eter >ombabrd wrote of

the centrality of lo!e within marriage$ thus it would be true to say that marriage without lo!e is

incom"lete, but this cannot be said of a marriage that has not been consummated$ there are many

cou"les who ha!e not consummated their marriage "erha"s because of age but who are fulfilled


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because their li!es are s"ent e'"ressing their mutual lo!e in other ways$ Indeed -S s"eas of

marriage as the intimate sharing of marital life and lo!e and as a whole manner and communion

of life$ thus the se'ual dimension is only one dimension among many in which lo!e can be

e'"ressed$ unfortunately canon 1061$1 still em"hasises the se'ual dimension to the detriment of

all the others$ its final "art is !irtually the same as that of its "redecessor in the 1(1 code$ with

regard to the act of se'ual intercourse, canon 1061$1 states that to this act marriage is by its

nature ordered and by it the s"ouses become one flesh$ while this is true the canon fails to tae

into account the broader conte't of marriage that is the mutual self+gi!ing which must tae "lace

on a daily basis$ further canon 1061 gi!es conditions which ha!e to be met in order for an act of

se'ual intercourse to be regarded as an act by which the marriage is consummated$$ there are two

conditions$ first the act must be conducted in a human manner. human modo/$ second it must be

a"t for the generation of offs"ring . "er se a"tum ad "roli' generationem/$ with regard to human

manner, this comes from -S 4( which s"eas of &the truly human "erformance of these acts&$

. modo !eer human e'erciti/$ if an act is human, then it "ertains to the whole including the will$

hence if an indi!idual is forced to act against his will, then it can be said that his action is not

"erformed in a truly human fashion$ canon 1:9$1 in the boo on general norms satiates an act

"erformed as a result of force im"osed from outside on a "erson who was


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e'"ress these through their bodies$ it is as if their bodies s"ea for them, "roclaiming christ&s

lo!e and unity$ %ust as a "ro"het maes nown the truth about -od, then so their bodies re!eal

the truth about marriage$ it is for this reason that *ohn ;aul Il s"eas of the "ro"hetism of the

body$ S"ouses must beha!e in conformity with the truths of marriage# otherwise their bodies act

as false "ro"hets$ if one a""lies this to forced se'ual intercourse then one must conclude that the

forced act of union cannot truly re"resent the genuine total self+gi!ing that marriage in!ol!es$

;o"e *ohn ;aul II also s"oe of the language of the body$ if this terminology is used then forced

se'ual intercourse is a lie i$e$ it cannot truthfully e'"ress the !oluntary self+gi!ing that is at the

centre of marriage$

the second condition for consummation gi!en by canon 1061 is that intercourse must be a"t for

the generation of offs"ring$ two "eo"le marry and during the course of their time together the

man insists on using a "ro"hylactic sheath. condom/$ indeed he ne!er engages in intercourse

without one$ the relationshi" ends in se"aration and ci!il di!orce$ as no act of intercourse has

been "erformed in a manner a"t for the generation of children it cowld be argued that the

marriage is not consummated canonically and so can be dissol!ed$ 1061$: if the s"ouses ha!e

li!ed together after the celebration of their marriage, consummation is "resumed until the

contrary is "ro!en$ thus if the s"ouse li!ed together after the wedding and dissolution on the

grounds of non+ consummation is being sought, then the onus is on "ro!ing the non+

consummation$ this could be through "hysical e'amination of the woman, or the inter!iew of

the s"ouses and "ossibly witnesses$ if the cou"le ne!er li!ed together after the wedding non

consummation could be argued on the basis of lac of o""ortunity$

Canon 1061$D an in!alid marriage is said to be "utati!e if it has been celebrated in good faith

by at least one "arty it ceases to be such when both "arties become certain of its nullity$ a

"utati!e marriage is a marriage that is regarded as !alid but intact is in!alid$ the nullity could be

due to an undis"osed im"endiment$

Canon 101$ .situations re


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B @agus is one who has no fi'ed abode .c100/ i$e$ no domicile or


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at times is lacing in the those a younger age$ minors also lac emotional stability and maturity

to handle the challenges of marriage

$ a marriage to be entered by means of "ro'y cf 1109$

a "ro'y marriage is one which taes "lace without the "arties "resent to each other$ one or both

are re"resented by "ersons who who are duly mandated to e'change consent on behalf of the

"arties themsel!es$

$: the local ordinary is not to grant "ermission for assisting at the marriage of a "erson who has

notoriously re%ected the catholic faith unless the norms of canon 11:9 ha!e been obser!ed


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IM;5?IM5N3S IN -5N5A>

A. The meaning of a diriment impediment

An im"ediment is a hinderance or an obstacle which "re!ents something from being done$ the

code of 1(1 distinguished between merely im"edient im"ediments. obstacles or im"ediments

rendering an act merely illicit or unlawful, but not in!alid/ and diriment im"ediments. obstacles

or im"ediments rendering an act not merely illicit or unlawful, but also in!alid/$ A diriment

im"ediment from its root meaning is something that ee"s the cou"le di!ided or something that

sto"s the marriage from being created$ the im"edient im"ediment under the 1(1 code of mi'ed

religion no longer e'ists as such, the code now states sim"ly that there must be a "ermission for

the marriage to tae "lace and s"ecifies the conditions necessary for this .c 11:9/$ although this

is similar to an im"edient im"ediment, no dis"ensation is needed because there is no im"ediment

from which to dis"ense$ ;ermission is needed for >iceity .lawfulness or legitimacy/

All matrimonial im"ediments in the 1(8D Code are diriment im"ediments$A diriment

im"ediment renders a "erson inca"able of !alidly contracting marriage .c 10D/$ -i!en the basic

right to choose a state of life including marriage .c 1098/ an im"ediemtn has its source in a fact

or in a defect which, affecting the "erson of the future . "otential s"ouses/ renders them

%uridically inca"able of contracting a !alid marriage$

Declaration and establishment of impediments

Bnly the su"reme authority of the church can create or state what is a diriment or in!alidating

im"ediment .109, 10$:/# only laws stated to be in!alidating or inca"acitating laws are such

.c10/$ thus no indi!idual bisho" nor other ordinary is ca"able of establishing or declaring

diriment im"ediments to marriage .c10D, 109, 10$:/$ only the su"reme authority can

establish other im"ediments for the ba"tised. 109$:/ as distinct from the declaration of

im"ediments also reser!ed to the su"reme authority .c 109$1/ Canon law consists of di!ine law,

re!ealed and natural and merely ecclesiastical law$ since the church is bound by di!ine law, it

claims only to declare what that is, whereas ecclesiastical laws are human laws established by

their "ro,emulation by the legitimate authority for its "ro"er sub%ects.c /$ Normally merely


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ecclesiastical laws bind only catholics . c11/ and in the 1(8D code catholics of the latin rite. c 1/$

35 ?IIM5N3 IM;5?IM5N3S 3B MAIA-5 IN -5N5A> distinguish im"ediments

declared by the su"reme authority. di!ine laws/ from those established by the su"reme authority

. ecclesiastical law/$ Im"ediments of di!ine law are declared .c$ 109$1/$ Most of these a""ly to

all marriages# they state what is necessary for a marriage to be !alid and for a "erson to be

ca"able of marriage, irres"ecti!e of whether or not that "erson is catholic or e!en ba"tised,

whether the marriage is between two catholics, two ba"tised "ersons, one ba"tised and a non

ba"tised "erson or tow non ba"tised "ersons$ ecclesiastical laws normally a""ly to catholics and

here of the latin rite . c 1, c 11/$ owe!er the su"reme authority alone can establish other

im"ediments. of ecclesiastical law/ which a""ly to all ba"tised . 109$:/$ not only those who

marry catholics but in some res"ects e!en the marriages of two ba"tised non catholic christians

with one another whether conducted in a non catholic church or e!en in a register office$ in fact

this will not become a "ractical issue unless one of these "ersons wishes to marry a catholic or

unless one or both of them becomes catholic$

the local ordinary can "rohibit a s"ecific marriage for a limited time for gra!e reasons and only

as long as the reason "ersists . c 10$ 1/$ 3his does not allow him to establish an im"ediment

not e!en an im"edient im"ediment$ ather it is a "astoral de!ice allowing him to dealy a

marriage which seems to be !ery unwise or which might be in!alid, to ensure that matters are

clarified, that there is "ro"er "re"aration$ this ca"acity is limited to his own "ro"er sub%ects,

where!er they are or to those actually "resent in the territory for which he has "ro"er

res"onsibility$

Dispensation from impediments to Matrimony.

A dis"ensation is a rela'ation of a law in a gi!en or "articular case. c$89/ In such a case, the

"erson could marry !alidly$ owe!er not all im"ediments to marriage can be dis"ensed$

Im"ediments of di!ine law which only the su"reme authority can declare. declares them, but

does not establish them, since they are established by -od/ cannot be dis"ensed e!en by the

su"reme authority$ those of ecclesiastical law can be dis"ensed, but only if certain conditions are

met and they can only be dis"ensed by certain "ersons$ thus if the conditions re


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the dis"ensation itself will be in!alid and so the marriage conducted on the basis of it will be

in!alid .cc 88+(D/$

?is"ensations from im"ediments then concerns ecclesiastical law$ some im"ediments can be

dis"ensed only by the A"ostolic see . canon 108$1/ namely those in sacred orders, a "ublic,

"er"etual !ow of chastity in a religious institute of "ontifical right and crime.cc 108$:, 10(0/$

with these e'ce"tions and noting that dis"ensations form consanguinity in the direct line and u"

to the second degree of the collateral line are ne!er gi!en. 108$D/$ the local ordinary is usually

the "erson who grants dis"enseations often through a "erson in the diocese designated by the

bisho" for that "er "ose and gi!en the necessary faculties# this could be the chancellor$ the @icar

-enral of the diocese can grant such dis"ensations, since he e'cises ordinary "ower !icariously

or on behalf of the diocesan bisho" by !irtue of his office though out the diocese$ An e"isco"al

!icar can grant such dis"ensations within the area of the diocese for which he has been gi!en

s"ecific res"onsibility by the diocesan bisho"$ the local ordinary only has such "ower of

dis"ensation within his own diocese or for his own "ro"er sub%ects. 108$1/$ any such

dis"ensations must be for the s"iritual welfare of the faithful . c$88/ and only for a %ust and

reasonable cause . c (0$1/, with strict inter"retation as to circumstances, the law in


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cannot be a""roached by the "arish "riest and by a "ro"erly delegated sacred minister, if an

im"ediment is disco!ered at the last moment and the wedding cannot be deferred without the

lielihood of gra!e harm. c 1080$1+:/$ these "owers in danger of death or when all is "re"ared do

not e'tend to a "erson delegated to assist at a wedding who is not a sacred minister. cc 10(+

1080/, since both canons e'"ressly limit the "ower to dis"ense e!en on these e'treme cases to

sacred ministers$ 3hus not e!en a lay "ersonn , "ro"erly delegated as the church&s official witness

in the unusual circumstances of c 111:, could e!er !alidly dis"ense from any im"ediment# only

bisho"s, "riests or deacons can e!er dis"ense and then only as s"ecified abo!e, with conditions

strictly inter"reted $ It is further to be noted that "owers of dis"ensation concern a "articular

wedding . c 108$1, cc88+(D/$

where a dis"ensation from a diriment im"ediment to marriage is !alidly gi!en in such a situation

of emergency, the local ordinary is to be informed immediately, where it concerns a dis"ensation

in the e'ternal forum and the dis"ensation is to be recorded in the church marriage register. c

1081/$ where the im"ediment is occult. cannot be established in the e'ternal forumB and where

the dis"ensation is granted in the internal non+sacramental forum, it is normally to be recorded in

a s"ecial boo in the secret achie!es of the diocesan curia. c 108:/, unless the a"ostolic

"enitentiary determines otherwise$ this is limited to the non sacramental internal forum, since the

sacramental internal forum is the sacrament of reconciliation and any such record would

ine!itably entail the !iolation of the seal of the confessional$ since a dis"ensation can be gi!en

e!en there, in the case of danger of death and then, ob!iously "recisely by the confessor . canon

10($D/ as c 108: clearly im"lies this is ne!er to be recorded$

canon law of marriage 2 copy 5

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