COGNATION
In Roman law this term designated, in contrast to agnation (v.), the bond existing between persons descended from the same stock, especially if born of lawful wedlock.
The term, however, soon took on a more general meaning, so as to include not only natural kinship but also affinity (v.) and other bonds that were not natural but purely legal, similar to those. Thus, in canon law, there came to be legal and spiritual cognation.
I. LEGAL COGNATION. — The word *cognatio* derives from the Latin *cognatio*, which denotes kinship by birth or consanguinity (v.): it is the basis of the cognatic family, in contrast to what occurs in the agnatic family.
Legal cognation produces kinship relationships similar to those of the cognatic family, but its distinguishing feature is that such kinship does not arise from procreation but from a legal transaction, namely adoption (v.), by virtue of which one assumes the position of a child without being such by reason of procreation. For this reason, legal cognation is commonly called kinship without consanguinity.
Legal cognation, which, as has been said, arises from adoption, is an institution of civil law, but the Church’s law attributes to it, in certain cases, canonical effects as well; in particular, legal cognation constitutes an impediment to marriage.
The historical origin of this impediment in canon law is not clear. It may be supposed that it was received by the Church from the outset as it stood in Roman law; but the first mention of it occurs in a letter of Nicholas I from the year 866 (c. 1, C. XXX, q. 3), then in a rescript of Paschal II (c. 5, C. XXX, q. 3), and is thus recognized as existing by Gratian, the principal decretists, and subsequent canonists, most of whom, after some initial uncertainty, came to hold that the impediment existed (and with diriment effect) when the adoption from which the cognation derived was made in the manner regulated by Roman law. The canonical impediment was recognized as existing: a) between the adopter and the adopted, and the descendants who, at the time of adoption, were under the patria potestas of the adopted; b) between the adopted and the legitimate children of the adopter, so long as these were subject to the patria potestas; c) between the adopter and the spouse of the adopted, and between the adopted and the spouse of the adopter.
The *Codex Iuris Canonici* has completely revised this matter, providing that legal cognation arising from adoption produces a matrimonial impediment (v. IMPEDIMENT), whether diriment or merely prohibitive, according to whether the civil law in force in individual countries renders the marriage invalid or merely illicit on account of the existence of legal cognation (cc. 1080, 1059); while it produces no canonical impediment if the civil legislation does not regard it as an impediment.
The reason for which this impediment was introduced by the Church is explained by St. Thomas (In IV Sent., d. 42, q. 1, a. 2): *“Divine law excludes from marriage especially those persons with whom it is necessary to live together, lest, as Rabbi Moses says, if carnal intercourse were permitted with them, an easy occasion for concupiscence would arise, for which marriage is ordained; and because an adopted son lives in the house of his adopting father, just as a natural son does, therefore human laws prohibit marriage from being contracted between such persons, and such prohibition has been approved by the Church, and hence it is understood that legal cognation impedes marriage.”* To this fundamental reason, canonists are wont to add that of public decency and respect for kinship: for although adoption is an institution of civil law, nevertheless, by reason of its existence within the civil order, persons are assumed into the place of relatives: of sons or daughters, of brothers or sisters. And it is these relationships that render marriage less honest (Rosset, Gasparri).
The impediment of legal cognation is certainly and exclusively of canon law, yet it is founded upon the provisions of civil law. And it is for this reason that *“if a question arises, whether in an ecclesiastical tribunal or even in a synod or elsewhere, as to whether in this or that case there exists an impediment of legal cognation, it will be necessary to have recourse to the civil laws, and according to their norm the controversy must be decided”* (Benedict XIV, *De Synodo*, lib. IX, cap. 10, n. 5).
Despite the clarity of this norm, controversies have not been lacking.
There is no doubt that, in order to establish the limits of the impediment in canon law, one must investigate the limits of the impediment itself in civil law, for, as is clearly evident from cc. 1059 and 1080 of the *CIC*, civil law has been canonized (v. CANONIZZAZIONE DELLE LEGGI). Yet such canonization cannot result in the recognition of situations or positions contrary to divine law, for this cannot be contradicted by the human canonical legislator.
In practice, the difficulty has arisen in deciding whether the Church’s law ought to recognize, for the purposes of the canonical impediment, cognation (conjugal or affinity) arising from merely civil marriage, to which, if the parties are bound to observe the form of celebration prescribed by the Church, canon law can attribute no juridical value or effect.
It should then be clarified that the canonization of civil law is limited to the impediment arising from legal kinship established by adoption (cc. 1059 and 1080); it therefore appears that the new institution of affiliation (q.v.), which has a character, content, and purpose profoundly different from those of adoption, does not constitute a diriment canonical impediment, even though it is so under Italian civil law (art. 87 of the Civil Code).
It should finally be noted that canonization expressly concerns the special impediment established by civil law. Consequently, if adoption—the source of the special impediment—is introduced solely by custom rather than by law, the canonical impediment of legal kinship (cognatio legalis) cannot exist (*S. C. S. Officii* in Congregatione generali coram S. mo D. N., 16 April 1861).
There is debate as to whether, for the purposes of cc. 1059 and 1080, regard should be had to the civil law of the territory where the marriage is celebrated or to the national law of the parties; in other words, whether territorial law or personal law should apply.
With regard to the impedient impediment of c. 1059, it is generally held that regard should be had to the civil law of the territory where the marriage is celebrated, since this interpretation is clearly indicated by the wording of the canon. For the diriment impediment (c. 1080), some maintain that this impediment is of a personal nature, referring to the national law of the parties, while others, conversely, argue that the wording of c. 1080 does not suffice to overturn the presumption of the territoriality of the law.
The canonical impediment arising from legal kinship is solely of ecclesiastical law. It may therefore be dispensed by the Church (a dispensation granted by civil authority has no effect for marriages in which at least one of the parties is a Christian), and it does not apply to non-believers, for whom the impediment remains only of a civil nature. However, if a non-believer is baptized, any impediment already existing under civil law—provided that the civil adoption still subsists at the time of baptism—assumes a canonical character as well.
**Eastern Law.** — Among the Eastern Churches, this impediment also applies. Its scope varied considerably from one rite to another, but now, by the *motu proprio* of 22 February 1949 (cc. 49 and 71), the diriment or impedient impediment has been incorporated into canon law insofar as and to the extent that it exists in civil legislation.
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### II. SPIRITUAL KINSHIP
**Spiritual kinship** is a relationship arising from the sacrament of Baptism and that of Confirmation or Chrismation. Like legal kinship, spiritual kinship is a relationship without consanguinity; however, whereas legal kinship has its source in a civil-law transaction (adoption), spiritual kinship arises from a sacrament and assumes a wholly spiritual character and content.
In ancient law, spiritual kinship, in its threefold form (paternity, spiritual affinity, and confraternity), always constituted a diriment impediment to marriage. The *Code of Canon Law*, however, has restricted the spiritual kinship relationship to the baptizer, the baptized, and the sponsor when the kinship arises from Baptism (c. 768), and to the confirmee and sponsor when it arises from Confirmation (c. 797). It has further limited the matrimonial impediment (diriment) solely to the case of spiritual kinship arising from Baptism between the minister or sponsor and the baptized (c. 1079).
The first written text mentioning this impediment is a constitution of Justinian from 530 (*C.* 5.24.26). In the East, this was followed by c. 53 of the Council in Trullo (692), and in the West by c. 4 of the Roman Council of 721, after which other texts expanded the impediment and extended it to spiritual kinship arising from Confirmation.
The Council of Trent (Session XXIV, c. 2 *de ref. matr.*) mitigated the confused and overly broad legislation by limiting the impediment—both in Baptism and in Confirmation—to the kinship between the minister or sponsor on one side and the baptized or confirmed or their parents on the other.
A necessary condition for the arising of spiritual kinship and the corresponding impediment is that the sacrament of Baptism be validly conferred. Thus, spiritual kinship (c. 762) and the consequent impediment arise from a private Baptism, since this is a perfectly valid sacrament even if not administered with solemn rites. Conversely, solemn ceremonies performed after a Baptism administered privately in case of necessity, or otherwise in private form, do not give rise to spiritual kinship (c. 762 § 2), because when the ceremony takes place, the Baptism has already been validly conferred and all its effects have already been produced (cf., for the case of a Baptism administered first by a wet nurse, *S. C. C.* 13 April 1669, 20 October 1687, etc.).
In cases of doubt regarding the validity of Baptism, spiritual kinship and the corresponding impediment are not considered to exist. Moreover, for the same reason, even if—doubting the validity of the first Baptism—it is repeated conditionally, spiritual kinship does not exist either with regard to the sponsor of the first Baptism or to that of the second, unless the same person acted as sponsor in both Baptisms (c. 763 § 2).
Another condition for the arising of spiritual kinship and the corresponding impediment is the suitability of the person to act as sponsor (q.V. BAPTISM). It should be noted, however, that no specific intention to contract spiritual kinship is required; spiritual kinship between the baptized and the sponsor arises validly even if the latter, while wishing to fulfill the office of sponsor, positively excluded the assumption of the spiritual kinship relationship, since it is within the power and will of the sponsor only to assume the office, whereas the establishment of the consequences connected to it lies solely within the power of the Church.
**Eastern Law.** — Among Catholic Easterners, the diriment impediment of spiritual kinship has been in force for centuries, generally according to the norms of the Council of Trent; however, the scope of the impediment was broader among the Greeks (except the Italo-Greeks), who also recognized a spiritual kinship impediment arising from Marriage (considering the witnesses as a kind of sponsors).
Now, the *motu proprio* of 22 February 1949 (c. 70) has unified the impediment, establishing that it exists solely between the sponsor on one side and the baptized and their parents on the other.
In general, Catholic Easterners consider this impediment to be merely impedient.
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