COGNAZIONE. – In Roman law, this term denoted, agnation (v.), the bond existing between persons descended from the same ancestor, especially when born of legitimate marriages.
The term, however, soon acquired a more general meaning, so as to include, in addition to natural kinship, affinity (v.) and other bonds that were not natural but merely legal, similar to these. Thus, in canon law, there came to be legal c. and spiritual c.
I. LEGAL COGNATION
The word c. derives from the term cognatio, which indicates kinship by birth or consanguinity (v.): it is the basis of the cognatic family, in contrast to what occurs in the agnatic family.Legal c. produces kinship relations similar to those of the cognatic family, but its characteristic consists in the fact that this kinship does not have its source in procreation, but rather in a juridical transaction, adoption (v.), by virtue of which the position of a son is assumed by one who is not such by reason of procreation. For this reason legal c. is usually called kinship without consanguinity.
Legal c., which, as has been said, arises from adoption, is an institution of civil law, but the law of the Church attributes canonical effects to it in certain cases; in particular, legal c. constitutes an impediment to marriage.
The historical origin of this impediment in canon law is not clear. It may also be supposed that from the beginning it was received by the Church as it stood
in Roman law; but its first mention is found in a letter of Nicholas I of the year 866 (c. 1, C. XXX, q. 3), then in a rescript of Paschal II (c. 5, C. XXX, q. 3), and it was consequently recognized as existing by Gratian, by the principal decretists, and by later canonists, most of whom, after a period of uncertainty, came to the view that the impediment existed (and with diriment force) when the adoption from which the c. arose had been carried out in the manner regulated by Roman law. The canonical impediment was recognized as existing: a) between the adopter and the adopted person, and the descendants who at the time of the adoption were under the parental authority of the adopted person; b) between the adopted person and the legitimate children of the adopter, so long as they were subject to parental authority; c) between the adopter and the spouse of the adopted person, and between the adopted person and the spouse of the adopter.
The CIC completely innovated in this matter, providing that legal c. arising from adoption produces a matrimonial impediment (v. IMPEDIMENTI), either diriment or merely prohibitive, according as the civil law in force in the individual countries renders the marriage invalid or merely illicit on account of the existence of legal c. (cann. 1080, 1059); whereas 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 set forth by St. Thomas (In IV Sent., d. 42, I, 2): « Lex divina illas personae praecipue e matrimonio exclusi, quas necesse est cohabitare, ne, ut Rabbi Movses dicit, si ad eas liceret carnalis copula, facilis pateret concupiscentiae locus, ad quam reprimendam matrimonium est ordinatum; et quia filius adoptatus versatur in domo patria adoptantis, sicut filius naturalis, ideo legibus humanis prohibitum est inter tales matrimonium contrahi, et talis prohibitio est per Ecclesiam approbata, et inde habetur quod legalis cognatio matrimonium impediat ». To this fundamental reason, canonists usually add that of public decency and respect for kinship: although adoption is an institution of civil law, nevertheless, because it exists within the civil legal order, persons are placed in the position of relatives: sons or daughters, brothers or sisters. And it is these relationships that make the marriage less proper (Rosset, Gasparri).
The impediment of legal c. is certainly and exclusively a matter of canon law, but it is nevertheless founded on the provision of civil law. For this reason, « si quaestio incidat sive in tribunali ecclesiastico sive etiam in synodo an in hoc vel illo casu adsit impedimentum cognationis legalis, necessario recurrendum erit ad leges civiles, atque ad earundem normam controversia decidenda » (Benedictus XIV, De Syn., lib. IX, cap. 10, n. 5).
Despite the clarity of this rule, however, disputes have not been lacking.
There is no doubt that, in order to establish the limits of the impediment in canon law, it is necessary to ascertain the limits of the impediment itself in civil law, because, as is clearly evident from cann. 1059 and 1080 of the CIC, civil law has been canonized (v. CANONIZZAZIONE DELLE LEGGI). But such canonization cannot produce the recognition of situations or positions contrary to divine law, because the latter cannot be contradicted by the human canonical legislator.
The difficulty arose in practice in deciding whether the law of the Church must recognize, for the purposes of the canonical impediment, the c. (conjugal or by affinity) arising from a purely civil marriage, to which, when it concerns persons bound to observe the form of celebration established by the Church, canon law cannot attribute any legal value or effect.
It should also be specified that the canonization of civil law is limited to the impediment arising from legal c. originating in adoption (cann. 1059 and 1080); it therefore seems affiliation (v.), whose character, content, and purpose are profoundly different from those of adoption, does not constitute a diriment canonical impediment, despite the fact that it does so under Italian civil law (art. 87 Civil Code).
Finally, it should be noted that the canonization expressly concerns the special impediment established by civil law. Consequently, if the adoption that is the source of the special impediment is introduced solely by the custom of the people, and not by law, the canonical impediment of legal c. cannot exist (S. C. S. Officii in Congreg. generali coram S.mo D. N. die 16 apr. 1861).
It is debated whether, for the purposes of cann. 1059 and 1080, regard should be had to the civil law of the territory in which the marriage is celebrated or to the national law of the persons; that is, whether regard should be had to territorial law or to personal law.
With regard to the prohibitive impediment of can. 1059, it is generally held that regard should be had to the law in force in the territory in which the marriage is celebrated, because that solution would be clearly indicated by the words used by the canon; with regard to the diriment impediment (can. 1080), some hold that this impediment must be considered personal in nature, that is, as referring to the national law of the persons, while others, on the contrary, are of the opinion that the words used by can. 1080 are not such as to destroy the presumption that the law is territorial.
The canonical impediment arising from legal c. is solely a matter of ecclesiastical law. It may therefore be dispensed by the Church (a dispensation granted by the civil authority has no effect with respect to marriages in which at least one of the contracting parties is Christian), and it does not concern infidels, for whom the impediment consequently remains solely civil in nature. If, however, the infidel is baptized, the impediment already existing under civil law, provided that the civil adoption still exists at the time of Baptism, also assumes a canonical character.
Eastern law. — This impediment also exists among Eastern Christians. Its extent varied considerably from one rite to another; but now, by the motu proprio of 22 February 1949 (cann. 49 and 71), the diriment or prohibitive impediment has been received into canon law insofar as, and within the limits in which, it exists in civil legislation.
II. C. SPIRITUAL. - Spiritual c. is a relationship arising from the sacrament of Baptism and from that of Confirmation or Chrismation. Like legal c., spiritual c. is a relationship without consanguinity; but whereas legal c. has its source in a civil-law transaction (adoption), spiritual c. arises from a Sacrament and assumes an entirely spiritual character and content.
In ancient law, spiritual c., in its threefold form (paternitas, compaternitas, and confraternitas), always constituted a diriment impediment to marriage; but the CIC has limited the relationship of spiritual c. to the baptizer, the baptized person, and the sponsor, when c. has its cause in Baptism (cann. 768), and to the confirmed person and the sponsor, when c. has its source in Confirmation (c. 797), and has restricted the matrimonial impediment (diriment) solely to the case of spiritual c. arising from Baptism, between the minister or sponsor on the one hand and the baptized person on the other (can. 1079).
The first written text in which this impediment is mentioned is a constitution of Justinian from 530 (C. 5, 24, 26); this was followed in the East by can. 53 of the Council in Trullo (692), and in the West by can. 4 of the Roman Council of 721, followed in turn by others that broadened the impediment and extended it also to spiritual c. arising from Confirmation.
The Council of Trent (sess. XXIV, c. 2 de ref. matr.) mitigated the confused and very extensive legislation, limiting the impediment, both in Baptism and in Confirmation, to the relationship between the minister or sponsor on the one hand and the baptized or confirmed person or that person’s parents on the other.
A necessary condition for the arising of spiritual c. and the corresponding impediment is that the sacrament of Baptism be validly administered. Thus, spiritual c. arises from a private Baptism (can. 762 § 2), and consequently the corresponding impediment, because this is a perfectly valid Baptism, even though it has not been given the solemn form. Conversely, the solemn ceremony subsequent to Baptism administered beforehand in a case of necessity, or otherwise previously administered in private form, does not give rise to spiritual c. (can. 762 § 2), because when the ceremony takes place, Baptism has already been validly administered and all its consequences have already been produced (cf., in the case of Baptism administered beforehand by a wet nurse, S. C. C. 13 Apr. 1669, 20 Oct. 1687, etc.).
Furthermore, when there is doubt about the validity of Baptism, spiritual c. and the corresponding impediment are not considered to exist. Indeed, for the same reason, even when, because of doubt concerning the validity of the first Baptism, it is repeated conditionally, spiritual c. exists neither with regard to the sponsor of the first Baptism nor with regard to the sponsor of the second Baptism, except when the sponsor in both Baptisms was the same person (can. 763 § 2).
Another condition for the arising of spiritual c. and the corresponding impediment is the person’s suitability to be a sponsor (v. BATTESIMO). It should nevertheless be noted that no specific intention to contract spiritual c. is required: indeed, spiritual c. between the baptized person and the sponsor would arise validly even if the latter, while wishing to exercise the office of sponsor, had positively excluded the assumption of the relationship of spiritual c.; for the assumption of the office depends on his power and will alone, whereas the determination of the consequences connected with it lies solely within the power of the Church.
Eastern law. - Among Eastern Catholics, too, the diriment impediment of spiritual c. has been in force for centuries, generally according to the norms of the Council of Trent. The impediment had a broader extension among the Greeks (except the Italo-Greeks), who also recognized an impediment of spiritual c. arising from Marriage, since witnesses were regarded as a kind of sponsors.
The motu proprio of 22 Feb. 1949 (can. 70) has now unified the impediment, establishing that it exists only between the sponsor on the one hand and the baptized person and that person’s parents on the other.
Non-Catholic Eastern Christians generally regard this impediment as merely prohibitive.
Le mariage en droit canonique, 2ª ed., I, Paris 1929, pp. 93, 401-14, 452; II, ibid. 1935, pp. 292-94, 323, 391; P. Gasparri, Tractatus canonicus de matrimonio, I, Vatican City 1932, pp. 454-61; Wernz-Vidal, V (1946), pp. 497-513; F. M. Cappello, Tractatus canonico-moralis de Sacramentis, V, 3ª ed., Turin-Rome 1947, pp. 523-35. Paolo Guidi