Impediments

IMPEDIMENTI. – From the Latin impedimentum (the verb impedio expresses the action by which the feet are entangled), i. generally and abstractly signifies anything by which someone is hindered from bringing to completion what he desires: anything that produces delay or obstruction.

SUMMARY:

I. Various meanings of the term i

II. Matrimonial i

III. I. to the sacrament of Orders.

I. VARIOUS MEANINGS OF THE TERM I

Not everything that constitutes an impediment in the physical order or within the sphere of vegetative or sensory life has ethical or juridical significance in itself, but only that which creates an obstacle to the free development of ethical and juridical life, that is, within the sphere of human acts. Anything whatsoever may be an impediment to a human act when it hinders knowledge or free will. An impediment may originate in nature, be imposed by law, or finally proceed from the intervention of another. In the latter case, the impediment may be unlawful, and is synonymous with injury (v.) and the effect of violence; or it may be legitimate, in which case it is the just prohibition issued by a superior or by anyone lawfully exercising dominative authority.

The law, whether natural or positive, in creating the obstacle, may limit itself to declaring the act unlawful and the person unauthorized, or it may go so far as to declare null an act completed contrary to the precise provision of the law, or otherwise to incapacitate the person with regard to certain acts. This is law (v.) that is nullifying or incapacitating.

When one ordinarily speaks of impediments, one is not referring so much to those established by law against the assumption of certain offices by certain persons, but rather turns toward the field of theology or sacramental law, and particularly toward two Sacraments, Holy Orders and Matrimony, and indirectly, and almost by reflection, toward that which obstructs the various stages of admission to religious life. That which constitutes an obstacle to the principal effect of the Sacraments, Grace, is more properly called an obex (v.), whereas the name impediment remains to signify the obstacles placed in the way of admission to Matrimony itself and to the sacrament of Holy Orders; with regard to the latter, perpetual impediments are designated by a special name: irregularity (v.). Here we intend to speak of matrimonial impediments and of those simple impediments concerning the sacrament of Holy Orders.

For impediments to religious life, V. the individual entries corresponding to its several stages: NOVIZIATO; RELIGIOSI.

II. MATRIMONIAL IMPEDIMENTS

1. Definition and divisions. — The term matrimonial impediments designates circumstances which, rendering one or both spouses incapable of contracting Marriage, cause the matrimonial contract, in the particular case, to be invalid or illicit.

The effects dependent upon these circumstances are established by whoever instituted Marriage within the natural order, that is, by God or by whoever has received from him the mandate to regulate it, namely, the competent legitimate authority. For Christians, even non-Catholics, this authority is solely the Church, since Jesus Christ raised the matrimonial contract between the baptized to the dignity of a Sacrament; for non-Christians, it is the civil or religious authority that regulates their usages.

Accordingly, there are impediments a) of natural law, when they are established by God himself through the law of nature; b) of positive divine law, if established by God’s free will in addition to the law of nature; c) of ecclesiastical law, when established by the Church for its subjects, in addition to natural and positive divine law; d) of merely civil law, when they concern marriages between non-baptized persons.

A matrimonial impediment which invalidates, that is, renders Marriage null, is called diriment, and, if it is known to the contracting parties, it also renders the act gravely illicit. One which renders it merely illicit, but not null, is instead called impedient.

For an impediment to produce its proper effect, it must be certain; if, however, there is grave reason for doubt, it is called doubtful, and in this case it is either disregarded or a dispensation is granted as a precaution (ad cautelam, quatenus opus sit.). Doubt concerning the existence of the law itself or its applicability to the certain fact is called a doubt of law (dubium iuris); if, on the other hand, it concerns the fact, that is, if there is doubt that the fact truly occurred as contemplated by the law, there is a doubt of fact (dubium facii). An impediment is called public when it arises from a fact public by its nature, or one that can be proved in the external forum (e.g., consanguinity), or one actually known to many; if it cannot be proved in the external forum, it is called occult (e.g., certain forms of the so-called impediment of criminis). Some impediments concern both contracting parties (e.g., consanguinity), while others arise from only one of them (e.g., impotence); some are absolute, preventing marriage with anyone, and others relative, preventing it only with certain persons. Some impediments are temporary, that is, they may cease either with the passage of time (age) or through a change in circumstances (abduction, mixed religion); the others are perpetual.

Impediments are called indispensable if the Church cannot dispense from them (because they belong to natural or positive divine law) or does not customarily dispense from them (because of the ecclesial gravity of their inappropriateness); the others are dispensable, although with varying degrees of strictness. The latter are divided into two categories: those of lesser degree, when they involve limited gravity, and those of greater degree, when their dispensation requires causes of a certain importance.

The impediments of divine law (natural or positive) are: impotence, the bond, consanguinity in the direct line and, according to common conviction, consanguinity in the first equal degree of the collateral line.

According to the legislation currently in force, the impediments of ecclesiastical law are: consanguinity in the second and third collateral degrees (but no farther), equal or unequal; affinity in the direct line or in the collateral line not beyond the second degree; public propriety in the direct line up to the second degree; age; disparity of worship; mixed religion; Sacred Orders; solemn profession; abduction; crimen in its four forms; spiritual relationship; the vow; and, where it is also a civil impediment, legal relationship. Affiliation is not an impediment borrowed from civil law, as adoption is.

Those of lesser degree are: consanguinity in the equal or mixed third collateral degree with the second; affinity in the equal second collateral degree; public propriety in the second degree; spiritual relationship; and crimen in its first two forms. The other impediments are of greater degree (for the individual impediments V. the individual entries).

In the legislation preceding the decree Ne temere, certain causes of matrimonial nullity, such as error, condition, etc., were also called impediments, but in the newer terminology the word impediment is used in the strict sense.

The impediments of divine law, or those regarded as such, are indispensable. The impediments of ecclesiastical law from which the Church does not customarily dispense are likewise called indispensable, namely, affinity in the direct line, Sacred Orders, and crimen involving the murder of a spouse. Abduction may be temporarily indispensable.

Of the impediments of ecclesiastical law, only two are impedient: the simple vow of chastity and mixed religion; all the others are diriment.

In ancient times the bishops also established impediments to marriage within their own territory, but subsequently it was established that diriment impediments were the exclusive competence of the Holy See, while the bishops retained the power to establish particular and temporary prohibitions which in practice amount to impedient impediments. The civil authority may not interfere in the substance of marriage between Christians, and any law concerning it is a usurpation of jurisdiction: it is competent only with regard to the purely civil effects of marriage.

2. Dispensation from impediments. — A dispensation from impediments of ecclesiastical law may be obtained for reasons more or less grave, according to the category or degree to which they belong (for dispensation in general V. LAW).

With regard, however, to dispensation from matrimonial impediments, it is appropriate to note certain particular points.

The first derives from the nature of the impediment and concerns the distinction between the impedient and the diriment. For the celebration of marriage, therefore, a dispensation may be necessary either for validity or for liceity.

Moreover, in the case of diriment impediments of greater degree, the dispensation is invalid unless the cause is one of those recognized as proportionate (causa canonica) and unless it is true at the time the dispensation is executed. For impediments of lesser degree, any cause suffices, even if it is not factually true. A dispensation from a diriment impediment is null if at the same time another undispensed diriment impediment stands in its way, unless the matter concerns consanguinity or affinity and the other impediment is not of the same kind and of an equal or lower degree. If, together with a public impediment from which an inferior authority can dispense by indult, there is another from which it cannot dispense, recourse must be had to the Holy See for both. When the impediments are doubtful, if the doubt is negative, it is disregarded; if positive, the dispensation is requested and granted ad cautelam, except in the case of the impediment of consanguinity in the first collateral degree.

An application for dispensation from a matrimonial impediment, in addition to the elements required for any other dispensation, must also include a genealogical tree when it concerns consanguinity, affinity, or public propriety, and must indicate the applicants’ economic circumstances. The parish priest must send the application to his Ordinary with all the necessary information; after examining the case, the latter arranges for the granting of the dispensation. Ordinarily, matrimonial dispensations are granted by the Holy See. For occult impediments in the internal forum, the Holy Penitentiary grants the dispensation; for disparity of worship and mixed religion, the Holy Office; and for the other impediments, the Sacred Congregation of the Sacraments. For Catholics in the missions, however, the Sacred Congregation of Propaganda Fide acts, and for those of Eastern rite, the respective Sacred Congregation.

In an extraordinary manner, other ecclesiastics may dispense, either by special concession of the Holy See or by provision of law. Special and precise concessions are made to apostolic nuncios and delegates and to certain Ordinaries, especially of dioceses abroad or far from Rome: such faculties are always temporary and renewable. Special faculties may also be granted in certain extraordinary circumstances.

In danger of death, the CIC grants the faculty of dispensing from almost all matrimonial impediments to Ordinaries, parish priests, confessors, and those priests who are present at marriages celebrated in the absence of the parish priest in accordance with can. 1098. The same applies in cases in which the impediment is discovered when everything is ready for the celebration of the marriage, so that it cannot be postponed without grave harm.

In these circumstances alone may the Ordinary dispense from all impediments as in danger of death, whereas the others are authorized only for occult cases and when there is not enough time to have recourse to the Ordinary. These limitations are to be interpreted strictly. The Ordinary, moreover, as a general rule, may dispense in doubtful cases and also when, after recourse has been had to the Holy See, serious and urgent reasons arise while the rescript is awaited that do not permit delay, provided that the dispensations in question are ones that the Holy See customarily grants.

When requesting a dispensation from the Holy See, the so-called testimonial petition must be complete and exhaustive; that is, it must contain all the particulars relating to and required by the case, since every impediment differs from the others, has its own aspects, and requires information that the person granting the dispensation must know, so that a null act may not be performed, the necessary particular guarantees may be obtained, and the appropriate clauses may be added. In the granting of matrimonial dispensations, the causes are of capital importance, both because it is a canonical rule not to grant derogations from laws without a just and reasonable motive, and because, in the case of impediments of a higher degree, if the cause is false, the dispensation is null.

It is the constant practice of the Holy See to require for matrimonial dispensations causes called canonical, that is, those explicitly listed in the past by the various dicasteries, such as the Holy Office, the Sacred Congregation of Propaganda, and the Apostolic Dataria. At a later time, however, other causes of equal gravity were admitted alongside these, so that it became possible to draw up a list of causes, some of which are admitted as motive causes and are therefore necessary for impediments of a higher degree, while others are merely impulsive and serve to reinforce the motive causes or apply to impediments of a lower degree. The general criterion is that the causes must exist on the part of the bride: only subordinately are other causes admitted for the benefit of others. Causes that entail no prejudice to the honor of the spouses are called honorable; those that do are instead called defamatory: the former are preferred to the latter. The criteria of the Holy See concerning this entire matter must also be applied by those who possess the faculty of dispensing. In listing the causes admitted for the granting of matrimonial dispensations, the criterion of gravity will be followed, and therefore the motive causes will be given first and then the impulsive ones.

3. Motive causes for the dispensation

a) Narrowness of the place. — This exists, and is absolute, when the place where the petitioner resides—that is, the applicant—has no more than 1,500 inhabitants or 300 families, and her relatives are so numerous there that she cannot find a man of equal condition whom she could marry except a blood relative or an affinal relative, while she finds it difficult to leave her domicile. Relative narrowness of the place exists when, because of wars or epidemics, there is a scarcity of men, and in centers where there are few Catholics and many non-Catholics. b) Over-mature age of the petitioner. — In curial language, a petitioner is called over-mature when she has passed the age of 24 but not yet reached 50, without having found a husband. This cause therefore applies to unmarried women and not to widows; but if the widow is still young or exposed to the danger of incontinence, her still young age—up to 30—or still flourishing age—up to approximately 40—may be put forward as the cause. c) Lack or insufficiency of dowry. — This applies when the bride has no dowry or does not possess the dowry that would be required for her to marry an outsider of equal condition. The cause is valid if the blood relative or affinal relative is willing to provide for her by marrying her; but it does not apply to widows. d) Poverty of a widow burdened with numerous children. — Poverty alone is not a sufficient cause, unless the woman is a widow with numerous children and is being asked in marriage by a bridegroom who is willing to provide what is necessary himself. e) Pacification to be achieved (bonum pacis). — This applies when the marriage of two blood relatives or affinal relatives puts an end to serious disputes, enmities, or hatreds between families. f) The condition of being orphaned of both parents. — The gravity of this cause, which is not strictly canonical, is evident. g) Deformity, illness, or defective condition of the bride. — It is clear that, for a woman in such circumstances, marriage to a blood relative or affinal relative is an appropriate remedy. h) Validation of a marriage contracted in good faith. — This has

This occurs when the two, acting in good faith, have contracted a null marriage without the necessary dispensation from a diriment i.

i. Imminence of the wedding

When the i. was discovered late or, through negligence, was not dispensed before the wedding, and at the same time the wedding cannot be postponed without serious material or moral harm. l) Mutual assistance in advanced age. — When both contracting parties are over 50 and need each other’s help or assistance. m) Public knowledge of an intended marriage. — When the proposed marriage is known to others and, if it did not take place, defamatory suspicions would arise. This cause is indicated by some with the expression: infamia oratrice vitauda. n) Merits of the petitioners. — This occurs when the petitioners are highly deserving of the Church or of the diocese. The merits must be outstanding; otherwise this cause remains merely impulsive. o) The good of the children (bonum prolis). — This occurs when the woman or both parties are widowed with children, and the marriage could provide for the support, education, or care of minor orphans. p) Excessive, suspicious, and dangerous familiarity. — This must not be confused with the obligatory cordiality and natural mutual affection between blood relatives. These are three different aspects of familiarity, which may also occur together. q) Infamy of the woman arising from suspicion. — When suspicions have arisen on account of the engagement, such as might leave the female petitioner defamed and without the possibility of marrying. r) Cohabitation under the same roof that cannot easily be prevented. — This must be necessary cohabitation that could lead to incest or scandal; but if the cohabitation is honorable and gives rise to no suspicions, the cause is not valid. s) The betrothed parties’ pertinacity in their resolve. t) Danger of incestuous concubinage. — This and the preceding are two similar causes and have the same value. u) Danger of a civil marriage. — If, however, this cause is advanced as a blackmailing threat, it is rejected. The same applies to the following two causes. v) Civil dispensation already obtained or requested; w) Civil marriage already contracted. — In this case, however, in Italy, after the Concordat, the two Catholic contracting parties must be treated as public sinners. x) Danger of a mixed marriage or of one to be celebrated before an acatholic minister. — Provided it is not advanced as blackmail, this is a cause admitted in order to avoid serious scandal and because of fear of the perversion both of the spouses and of their future offspring. y) Copulation already having taken place between the betrothed parties, pregnancy, and the need to legitimate the offspring. — Three distinct causes that require reparation, especially when the act was committed with the intention of obtaining the dispensation more easily. z) Removal of serious scandal. a') Termination of public concubinage. — This cause resembles and is equivalent to the preceding one. b') The bride’s virginity having already been lost through the agency of someone other than the fiancé. c') The bride’s illegitimate birth. — This and the preceding are two causes involving infamy, admitted only for the woman. d') The betrothed parties’ consensual elopement. — This cause is admitted provided that the woman is subsequently placed in a safe location, where she can freely give her consent to the marriage.

4. Impulsive causes for dispensation

a) Settlement of lawsuits concerning inheritance. — When the female petitioner must conduct a serious lawsuit over a substantial inheritance and only the bridegroom is willing to bear the expense, or when the lawsuit is terminated by the marriage. b) The petitioner’s need for that particular woman because of his special requirements. — Whether to care for his own children, to help him in the household business, or to assist him during illness. c) The good moral character of both spouses. d) The particular advisability of the marriage, for particular advantages. e) Hope for the conversion of the party. — This reason applies in i. of disparity of worship or of mixed religion, while excluding any pressure, even moral pressure. f) The good of parents in need of assistance. — This occurs when the marriage benefits the parents of one of the sick, elderly, or assistance-dependent spouses.

The matrimonial dispensation is usually granted by rescript in commissorial form. For it to take effect, therefore, the document must reach the executor, who, having ascertained that everything corresponds to the truth, must execute it in writing, for the purposes of proof in the external forum (v. RESCRITTO). Moreover, in order to limit dispensations and almost as a penalty for the applicants, while at the same time serving as a token of homage to the Holy See for the benefit received, a fee or componenda is imposed on every dispensation, proportional to the i. dispensed and to the petitioners’ economic circumstances. This differs from the other dispensations, for which a fee equal for all is established. For those who are genuinely destitute, the dispensation is granted free of charge.

III.

I. TO THE SACRAMENT OF ORDER

Before the CIC, the concept of an impediment and of an irregularity was not clearly defined: some distinguished irregularities from impediments, whereas most writers, without mentioning any distinctions, indiscriminately called all impediments irregularities, whether temporary or perpetual.

The same disagreement was found regarding the number of impediments; thus, for example, Gasparri, who admitted the aforementioned distinction, enumerated twelve (Tractatus de sacra ordinatione, I, Paris 1883, nos. 477 ff.), while other authors gave longer or shorter lists.

The CIC, drawing a clear distinction between irregularities and impediments, reduces the latter to seven. A simple impediment, insofar as it is distinct from an irregularity, may be defined as a temporary impediment established by ecclesiastical law that produces the same effects as an irregularity. Therefore, the specific difference between an irregularity and a simple impediment is that the former is perpetual by its nature, whereas the simple impediment is always temporary. An irregularity is distinguished as ex defectu or ex delicto, whereas a simple impediment admits of no such distinction. An irregularity can be introduced only by common law; a simple impediment also by particular law. The effects of irregularities and simple impediments, however, are identical; the primary and direct effect is to prevent the licit conferral of the first tonsure and of Orders; the secondary and indirect effect is to prohibit the exercise of Orders received (cf. can. 968). Generally, impediments are understood as preceding Orders, even though they may survive them; their origin also varies: for some, it is a freely performed personal act (e.g., a marriage voluntarily contracted); for others, either an extrinsic fact or a particular condition of affairs sanctioned by law; e.g., military service, servitude, or the persistence of non-Catholic relatives in their error.

Those simply impeded are (can. 987): 1. “The children of non-Catholics, so long as their parents persist in their error.” Whereas in ancient law grandchildren too were irregular, under the law now in force the impediment includes only the descendants of non-Catholics in the first degree of the direct line. The impediment nevertheless exists even if only one of the parents is a non-Catholic, and does not cease if the mixed marriage was contracted with the requisite dispensation, after the required guarantees had been furnished. Even though some think otherwise, it should be held that unbelievers are excluded from the designation non-Catholics (apostates, heretics, schismatics, atheists). The impediment, established to counteract the presumption against the stability or otherwise of the faith of children of non-Catholics, ceases either through the effective conversion of the parents or of the non-Catholic parent to the faith, or, in all probability, through their death, even if they persisted in their error. 2. “Married men.” In ancient times this impediment and the two following ones were called ex defectu libertatis. Under ancient law, while the marriage bond persisted, the impediment ceased if the wife embraced the religious state or made a vow of chastity while remaining in the world (Benedict XIV, De synodo dioecesana, I, XIII, 12, no. 13 ff.). Under the law now in force, however, marriage is an absolute impediment to receiving Orders, and it ceases only either through the dissolution of the marriage bond in any manner or through a dispensation from the Holy See, which is granted only with the wife’s free consent and after provision has been made for all possible difficulties in the case. 3. “Those who exercise an office or administration forbidden to clerics and for which they must render an account, until, having relinquished the office and administration and rendered the required accounts, they are free.” What is forbidden to clerics is clearly stated in can. 139; and, conversely, it follows that many offices and administrations are not forbidden to clerics, such as administering the property of churches and pious institutions, exercising the office of municipal councillor, and so forth. 4. “Those in servitude in the strict sense, before they have obtained their freedom.” The slaves in the strict sense of whom the code speaks here and in can. 1083 § 2, reproducing ancient law in its entirety, are those who, by the law of nations and contrary to natural liberty, are subject to another’s dominion. This deplorable state of affairs, always reproved by the Church, is no longer found in Europe and among civilized peoples, although it may occur in mission territories among uncivilized peoples. 5. “Those who according to civil law are obliged to ordinary military service, before they have fulfilled this obligation.” Ordinary military service is that which young men, called up for the first time according to the laws of their own nation, must perform for one or more years (decree Inter reliquas, 1 January 1911, art. 1); it does not matter to which corps they are assigned. Moreover, all those who, even if they will be so later, have not yet been called up for military service are impeded, either because they are underage or because they have been declared subject to re-examination at the military draft (Commissio Interpretationis authenticae, 2 June 1918). Those who, after active service, remain obliged to the so-called annual exercises are not impeded. 6. “Neophytes, until, in the judgment of the Ordinary, they have been sufficiently tested.” Neophytes are those who, converted in adulthood, received Baptism absolutely. Heretics who, after retracting their errors, are baptized conditionally are therefore excluded. Before the CIC, in order to admit a neophyte to receive Orders, recourse was generally had to the Holy See; can. 987, 6, leaves it to the judgment of the Ordinary to decide whether the candidate is sufficiently grounded in the Christian faith and morals. 7. “Those affected by infamy of fact, until, in the judgment of the Ordinary, it persists.” A person incurs this impediment who, either because of a crime committed or because of immoral conduct, has lost a good reputation among upright and serious members of the faithful, a matter which it belongs to the Ordinary to judge (can. 2293 § 3); the impediment ceases when the person regains a good reputation in accordance with can. 2295.

For excusing causes regarding impediments and their multiplication, V. IRREGOLARITÀ.

Since all impediments are temporary by nature, they first cease in the manner indicated for each one of them, and thus when the cause from which they derive their origin ceases. Thus, for example, the first impediment ceases with the conversion of the parents to the true faith; the second, with the dissolution of the marriage bond, and so forth. They also cease if the particular law from which they may have arisen is abrogated.