Cognation

COGNATION. - In Roman law this name indicated, as opposed to agnation (v.), the tie existing between persons descended from the same stock, especially if procreated from legitimate marriage.

The name, however, soon took on a more generic meaning, so as to include, besides natural kinship, also affinity (v.), and other ties that were not natural but merely legal, similar to those. Thus there arose, in canon law, legal c. and spiritual c.

I. LEGAL COGNATION

The word c. derives from the term cognatio, which indicates kinship by birth or blood relationship (v.): it is the basis of the cognate family, contrary to what occurs in the agnatic family.

Legal c. produces kinship relationships similar to those of the cognate family, but its characteristic consists in the fact that such kinship does not have its source in procreation, but rather in a juridical act, namely in adoption (v.), by virtue of which one who is not a child by reason of procreation is made to assume the position of a child. For this reason legal c. is customarily called kinship without blood relationship.

Legal c., which as has been said arises from adoption, is an institution of civil law, but the law of the Church attributes to it, in determined cases, also canonical effects; in particular legal c. constitutes an impediment to marriage.

The historical origin of this impediment in canon law is not clear. One may also suppose that it was, from the very beginnings, received by the Church as it stood in Roman law; but the first mention of it 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 is therefore recognized as existing by Gratian, by the principal decretists and by subsequent canonists, the majority of whom, after some time of uncertainty, oriented themselves toward the view that the impediment subsisted (and with diriment efficacy) when the adoption from which the c. derives was made as that regulated by Roman law. The canonical impediment was recognized as existing: a) between the adopter and the adopted, and the descendants who at the moment of adoption were under the paternal power of the adopted; b) between the adopted and the legitimate children of the adopter, as long as these were subject to paternal power; c) between the adopter and the spouse of the adopted, and between the adopted and the spouse of the adopter.

The CIC has completely innovated in this matter, providing that legal c., arising from adoption, produces a matrimonial impediment (v. IMPEDIMENT), either diriment or merely impedient, according as the civil law in force in individual countries renders the marriage invalid or merely illicit by reason of the existence of legal c. (cann. 1080, 1059); whereas it produces no canonical impediment if the civil legislation does not consider 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 customarily add the other of public decency and respect for kinship: however much adoption may be an institution of civil law, nevertheless, by reason of its existence in 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 honorable (Rosset, Gasparri).

The impediment of legal c. is certainly and exclusively of canon law, but nevertheless it is founded on the provision of civil law. And it is for this reason that « 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 » (Benedict XIV, De Syn., lib. IX, cap. 10, n. 5).

Despite however 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, it is necessary to investigate the limits of the impediment itself in civil law, because, as clearly results from cann. 1059 and 1080 of the CIC, the civil law has been canonized (v. CANONIZATION OF CIVIL LAWS). But such canonization cannot produce the recognition of situations or positions contrary to divine law, because this cannot be contradicted by the human canonical legislator.

The difficulty in concrete terms has presented itself in deciding whether the law of the Church must recognize, for the effects of the canonical impediment, the c. (conjugium or affinity) deriving from purely civil marriage, to which, if it is a question of persons bound to observe the form of celebration established by the Church, the canonical law cannot attribute any juridical value or effect.

It must be specified further that the canonization of civil law is limited to the impediment deriving from legal c. arising from adoption (cann. 1059 and 1080); it seems therefore that the new institution of affiliation (v.), which has a character, content and purpose profoundly different from those of adoption, does not constitute a diriment canonical impediment, despite the fact that it is one for Italian civil law (art. 87 of the Civil Code).

And finally it must be noted that the canonization expressly concerns the special impediment established by civil law. If, consequently, the adoption, source of the special impediment, is introduced by the custom of the people alone, 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 disputed whether, for the effects of cann. 1059 and 1080, regard must 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 must be had to the territorial law or to the personal law.

As regards the impedient impediment of can. 1059, it is generally held that regard must be had to the law in force in the territory in which the marriage is celebrated, because such a solution would be clearly indicated by the words used by the canon; for the diriment impediment (can. 1080), some hold that such an impediment must be considered of a personal nature, that is, 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 of the territoriality of the law.

The canonical impediment that arises from legal c. is only of ecclesiastical law. It can therefore be dispensed by the Church (the dispensation given by civil authority has no efficacy for marriages in which at least one of the contracting parties is a Christian), and it does not concern infidels, for whom therefore the impediment remains only of a civil nature. If however the infidel is baptized, the impediment already existing under civil law, provided the civil adoption still subsists at the moment of Baptism, also assumes a canonical character.

Oriental law. - Among the Orientals too this impediment is in force. Its extension was notably varied from one rite to another; but now, with the motu proprio of 22 Feb. 1949 (cann. 49 and 71), the diriment or impedient impediment has been received into canon law if and to the extent that it is in force in civil legislation.

II. SPIRITUAL KINSHIP

The spiritual relationship is a kinship that arises from the sacrament of Baptism and from that of Confirmation. Like the legal relationship, the spiritual one is a kinship without blood ties, but whereas the legal relationship has its source in a transaction of civil law (adoption), the spiritual relationship arises from a Sacrament and takes on a wholly spiritual character and content.

In ancient law, the spiritual relationship, in its threefold species (paternitas, compaternitas and confraternitas), always constituted a diriment impediment to marriage, but the CIC has limited the relationship of spiritual kinship to the baptizer, the baptized and the godparent, when the relationship has its cause in Baptism (cann. 768), and to the confirmed and the sponsor, when the relationship has its source in Confirmation (c. 797), and has restricted the matrimonial impediment (diriment) solely to the case of spiritual relationship deriving from Baptism, between the minister or the godparent and the baptized (can. 1079).

The first written text in which this impediment is mentioned is a constitution of Justinian of 530 (C. 5, 24, 26); there follow then in the East can. 53 of the Trullan Council (of 692), in the West can. 4 of the Roman Council of 721, then others that broadened the impediment and extended it also to the spiritual relationship deriving from Confirmation.

The Council of Trent (sess. XXIV, c. 2 de ref. matr.) mitigated the legislation, confused and very extensive, limiting the impediment, both in Baptism and in Confirmation, to the relationship between the minister or godparent on one side and the baptized or confirmed person or his parents on the other.

A necessary condition for the arising of the spiritual relationship and of the related impediment is that the sacrament of Baptism be validly administered. Thus: from a private Baptism the spiritual relationship arises (can. 762 § 2) and consequently the related impediment, because it is a perfectly valid Baptism although not clothed in the solemn form. On the contrary, from the solemn ceremony subsequent to a Baptism administered beforehand in case of necessity, or in any case administered beforehand in private form, the spiritual relationship does not arise (can. 762 § 2), because, when the ceremony takes place, the Baptism has already been validly administered and all its consequences have already been produced (cf., for the case of Baptism administered beforehand by the midwife, S. C. C. 13 Apr. 1669, 20 Oct. 1687, etc.).

In doubt, moreover, about the validity of the Baptism, the spiritual relationship and the related impediment are not held to exist. Indeed, for the same reason, even in the case that, in doubt about the validity of the first Baptism, it is repeated conditionally, the spiritual relationship does not subsist either with regard to the godparent of the first Baptism or with regard to the godparent of the second Baptism, except when in both Baptisms the godparent was the same person (can. 763 § 2).

Another condition for the arising of the spiritual relationship and of the related impediment is the suitability of the person to be a godparent (v. BATTESIMO). It should be noted, however, that the specific intention of contracting the spiritual relationship is not required: indeed, the spiritual relationship would validly arise between the baptized and the godparent even in the hypothesis that the latter, while wishing to exercise the office of godparent, had excluded with positive intention the assumption of the relationship of spiritual kinship, because only the assumption of the office depends on his power and will, whereas establishing the consequences connected with it is in the sole power of the Church.

Eastern law. - Among the Eastern Catholics too the diriment impediment of spiritual relationship has been in force for centuries, generally according to the norms of the Council of Trent; broader was the extension of the impediment among the Greeks (except the Italo-Greeks), who also knew an impediment of spiritual relationship deriving from Matrimony (the witnesses being considered a kind of godparents).

Now the motu proprio of 22 Feb. 1949 (can. 70) has unified the impediment, establishing that it subsists between the godparent alone on one side and the baptized person and his parents on the other.

Non-Catholic Easterners generally consider this impediment only as an impedient one.

Paolo Guidi