IMPEDIMENTS. - From the Latin impedimentum (the verb impedio expresses the action by which the feet are entangled), i. means in general and in the abstract everything by which someone is hindered in carrying to completion what he desires: everything that produces delay or obstacle.
I. VARIOUS MEANINGS OF THE TERM IMPEDIMENT
Everything that constitutes an i. in the physical order or within the sphere of vegetative or sensitive life has in itself no ethical or juridical interest, but only what creates an obstacle to the free development of ethical and juridical life, that is, within the sphere of human acts. Any thing whatsoever can be an i. to a human act when it hinders knowledge or the free will. The i. can originate from nature or be imposed by law or finally proceed from another's intervention. In the latter case the i. can be illegitimate, and is synonymous with injury (v.) and an effect of violence; just as it can be legitimate, and is then the just prohibition of a superior or of anyone legitimately exercising dominative power.
The law, moreover, whether natural or positive, in creating the obstacle, can stop at simply declaring the act unlawful and the person unauthorized, just as it can go so far as to declare invalid the act perfected against the precise provision of law, or otherwise disqualify the person with regard to determined acts. One is then in the field of a law (v.) that is invalidating or disqualifying.
When one ordinarily speaks of i., one does not attend so much to those existing by law against the assumption of determined offices by determined persons, but one orients oneself toward the field of theology or of sacramental law, and particularly toward two Sacraments, Order and Matrimony, and indirectly and almost by reflection to what hinders the various degrees of admission to religious life. What is an obstacle to the principal effect of the Sacraments, Grace, is more properly called an obex (v.), while the name of i. remains to signify the obstacles placed in the way of admission to Matrimony itself and to the sacrament of Order, in regard to which perpetual i. are designated by a special name: irregularity (v.). Here it is intended to speak of matrimonial i. and of those simple ones concerning the sacrament of Order.
For the i. to religious life, v. the individual entries, corresponding to the individual degrees thereof: NOVIZIATO; RELIGIOSI.
II. MATRIMONIAL IMPEDIMENTS
1. Notion and divisions
Under the name of matrimonial impediments are designated those circumstances which, rendering one or both of the spouses incapable of contracting Marriage, cause the marriage contract in the particular case to be null or illicit.
The effects depending on these circumstances are established by him who instituted Marriage in the natural order, that is, by God, or by him who has received from God the mandate to regulate it, namely, by the competent legitimate authority. For Christians, even non-Catholics, this authority is solely the Church, since Jesus Christ raised to the dignity of a Sacrament the marriage contract between the baptized; for non-Christians it is the civil or religious authority that regulates its usages.
There are accordingly impediments: a) of natural law, when they are established by God himself by 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 they are established by the Church for its subjects, in addition to the natural and positive divine law; d) of merely civil law, when it is a question of marriages between non-baptized persons.
A matrimonial impediment that invalidates, that is, renders the Marriage null, is called diriment, and, if it is known to the contracting parties, renders the act also gravely illicit. On the other hand, that which renders it only illicit but not null is called impedient.
For the impediment to have its proper effect, it must be certain; if instead there is a grave reason for doubting, it is called doubtful, and in this case either no account is taken of it or the dispensation is granted as a precaution (ad cautelam, quatenus opus sit). The doubt that concerns the very existence of the law or its applicability to a certain fact is called doubt of law (dubium iuris); if instead it concerns the fact, that is, if it is doubted whether this has truly occurred as contemplated by the law, there is doubt of fact (dubium facti). An impediment is called public which arises from a fact public in its nature, or which can be proved in the external forum (for example, consanguinity), or which is in fact known to many; if instead it cannot be proved in the external forum it is called occult (for example, certain species of the so-called impediment criminis). There are impediments that concern both contracting parties (for example, consanguinity), others that arise from only one of them (for example, impotence); absolute impediments, which prevent marriage with anyone, and relative ones if they prevent it only with determined persons. Some impediment is temporary, that is, it can cease either with time (age) or by a change of circumstances (abduction, mixed religion); the others are perpetual.
Those impediments from which the Church cannot dispense (because they are of natural or positive divine law) or is not accustomed to dispense (because of the ecclesial gravity of their unsuitability) are called indispensable; the others dispensable, though with differing rigor. The latter are divided into two categories: of minor degree when they carry a limited gravity, of major degree when they require causes of a certain weight for the dispensation.
The impediments of divine law (natural or positive) are: impotence, the bond, consanguinity in the direct line and, by common conviction, that in the first equal degree of the collateral line.
According to the legislation in force, the impediments of ecclesiastical law are: consanguinity in the second and third collateral degree (not beyond) equal or unequal, affinity in the direct line or collateral not beyond the second degree, public honesty in the direct line up to the second degree, age, disparity of worship, mixed religion, sacred Order, solemn profession, abduction, crimen in its four species, spiritual cognation, vow and, where it is also a civil impediment, legal cognation. Affiliation is not an impediment borrowed from the civil law, as adoption is.
Those of minor degree are: consanguinity in the third collateral degree equal or mixed with the second, affinity in the second collateral degree equal, public honesty in the second degree, spiritual cognation and the crimen of the first two species. The others are impediments of major degree (for the individual impediments see the individual entries).
In the legislation prior to the decree Ne temere certain causes of nullity of marriage, such as error, condition, etc., were also called impediments, but in the new law the word impediment is used in the strict sense.
Indispensable are the impediments of divine law or held to be such. Those of ecclesiastical law from which the Church is not accustomed to dispense are also called indispensable, namely, affinity in the direct line, sacred Order, the crimen with conjugicide. Abduction can 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 bishops too established impediments for marriage in their own territory, but it was subsequently established that diriment impediments were of the exclusive competence of the Holy See, while there remained with the bishops the power to establish particular and temporary prohibitions, which in fact are equivalent to impedient impediments. The civil authority can have no interference in the validity of marriage between Christians, and any law on the matter is a usurpation of right: it is competent only regarding the purely civil effects of marriage.
2. Dispensation from impediments
From impediments of ecclesiastical law a dispensation can be obtained for reasons more or less grave according to the category or degree to which they belong (for dispensation in general see LEGGE).
Regarding dispensation from matrimonial impediments, however, it is opportune to note certain particularities.
The first arises from the nature of the impediment, that is, it concerns the distinction between the impedient and the diriment. For the celebration of marriage, therefore, the dispensation may be necessary either for validity or for liceity.
Furthermore, for diriment impediments, when it is a question of those of major degree, the dispensation is not valid if the cause is not one of those recognized as proportionate (causa canonica) and if this is not true at the moment of executing the dispensation. For impediments of minor degree any cause suffices, even if it is not true in fact. The dispensation from a diriment impediment is null if at the same time another undispensed diriment impediment stands in the way, unless it is a question of consanguinity or affinity and the other impediment is not of the same species and of equal or lower degree. If with a public impediment, from which an inferior can dispense by indult, there concurs another from which he cannot dispense, recourse must be had to the Holy See for both. When it is a question of doubtful impediments, if the doubt is negative, no account is taken of it; if it is positive, the dispensation is requested and granted ad cautelam, except for the impediment of consanguinity in the first collateral degree.
The petition for dispensation from a matrimonial impediment, besides the elements required for any other dispensation, must also carry the genealogical tree when it is a question of consanguinity, affinity or public honesty, and must also indicate the economic condition of the petitioners. The parish priest must send the petition to his own Ordinary with all the necessary information; the latter, having examined the case, provides for the granting of the dispensation. Normally matrimonial dispensations are granted by the Holy See. For occult impediments in the internal forum the Sacred Penitentiary dispenses, for disparity of worship and mixed religion the Holy Office, for the other impediments the Sacred Congregation of the Sacraments. But for Catholics of the missions the Sacred Congregation of Propaganda Fide provides, and for those of the Oriental rite their respective Sacred Congregation.
By way of extraordinary concession, other ecclesiastical persons may dispense, either by special grant 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 foreign dioceses or those 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 contracted in the absence of the parish priest in accordance with can. 1098. Likewise in cases in which the impediment is discovered when everything is ready for the celebration of the marriage, so that it cannot be deferred without grave harm.
In these circumstances only the Ordinary can dispense from all impediments as in danger of death, while others are authorized only for occult cases and when there is not time to have recourse to the Ordinary. These limitations are to be interpreted strictly. The Ordinary, moreover, as a general rule, can dispense in doubtful cases and also when, having had recourse to the Holy See, while the rescript is awaited, grave and urgent reasons intervene that do not allow of delay, provided always that these are dispensations which the Holy See is accustomed to grant.
In requesting a dispensation from the Holy See, the so-called testimoniale must be complete and exhaustive, that is, it must contain all the indications that relate to and are required by the case, since each impediment differs from the others, has its own aspects and requires information which the one granting the dispensation must know, so that no null act be performed, that the necessary particular guarantees be had, and that the appropriate clauses may be added. In the granting of matrimonial dispensations the causes are of capital importance, both because it is a canonical norm not to grant derogations from the laws without a just and reasonable motive, and because, for 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 the so-called canonical causes, that is, those explicitly listed in the past by the competent dicasteries such as the Holy Office, the Congregation of Propaganda, the Apostolic Datary. In later times, however, together with these, others of equal gravity were admitted, so that a list of causes has been able to be formed, some of which are admitted as motive, and therefore necessary for impediments of a higher degree, while others are only impulsive and serve to strengthen the motive causes or for impediments of a lesser degree. The general criterion is that the causes must exist on the part of the bride: only subordinately are others admitted for the benefit of another. Causes that involve no prejudice to the honor of the spouses are called honest, otherwise they are called infamous: the former are preferred to the latter. The criteria of the Holy See on all this matter must also be used by those who enjoy 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 treated first and then the impulsive ones.
3. Motive causes for dispensation
a) Narrowness of the place. - This exists, and is absolute, when the place where the petitioner (that is, the requesting party) resides does not exceed 1,500 inhabitants or 300 families and her kinship is so widespread that she cannot find a man of equal condition to marry, except a blood relative or an affine, and it is hard for her 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) Superadult age of the petitioner. - In curial language the petitioner is called superadult when she has passed the age of 24 and not that of 50, without having yet found a husband. This cause therefore applies to marriageable women and not to widows; but when it is a question of a widow still young or exposed to danger of incontinence, the still young age (up to 30 years) or still flourishing age (up to about 40) of the same may be adduced as a cause. c) Lack or insufficiency of dowry. - When the bride is without a dowry or does not have the dowry that would be needed to marry an outsider of equal condition. The cause applies when the relative or affine is disposed to provide for her himself by marrying her; but it does not apply to widows. d) Poverty of a widow burdened with numerous offspring. - Poverty alone is not a sufficient cause, unless it is a question of a widow with numerous offspring, called to marriage by a spouse who is disposed to provide for what is necessary himself. e) Pacification to be achieved (bonum pacis). - When through the marriage of two blood relatives or affines grave litigations, enmities or hatreds between families are extinguished. f) Condition of an orphan of both parents. - The gravity of this cause, which is not strictly canonical, is evident. g) Deformity, infirmity or defective state of the bride. - It is clear that for a woman in those conditions marriage with a relative or affine is a suitable remedy. h) Convalidation of a marriage contracted in good faith. - This has place when the two parties have in good faith contracted invalidly without the necessary dispensation from a diriment impediment. i) Imminence of the marriage. - When the impediment has been discovered late or through negligence was not dispensed beforehand and at the same time the marriage cannot be postponed without grave material or moral harm. l) Mutual help in advanced age. - In the case where both contracting parties have passed the age of 50 and are in need of mutual help or assistance. m) Rumour that has spread of a marriage to be contracted. - When the planned marriage is known to others and, if it were not to take place, defamatory suspicions would arise. This cause is designated by some with the expression: infamia oratrice vitauda. n) Merits of the petitioners. - It occurs when the petitioners are highly deserving of the Church or of the diocese. It must be a question of distinguished merits, otherwise this cause remains impulsive. o) Good of the children (bonum prolis). - It occurs when the woman or both parties are widowed with children and through the marriage provision can be made for the support, education or care of the minor orphans. p) Excessive, suspect and dangerous familiarity. - It is not to be confused with the dutiful cordiality and natural mutual affection between blood relatives. These are three different aspects of familiarity, which may also be found together. q) Infamy of the woman arising from suspicion. - When suspicions have arisen, because of the engagement, capable of leaving the petitioner defamed and without the possibility of marrying. r) Cohabitation under the same roof, which cannot easily be prevented. - It must be a question of necessary cohabitation that could lead to incest or to scandal; but if the cohabitation is honourable and gives rise to no suspicions, the cause is not valid. s) Persistence of the betrothed in their intention. t) Danger of incestuous concubinage. - This and the preceding are two similar causes and have the same value. u) Danger of civil marriage. - When, however, this cause is adduced as a blackmailing threat, it is rejected. The same applies to the two following 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 a non-Catholic minister. - Provided it is not blackmailing, it is a cause admitted in order to avoid grave scandal and out of fear of the perversion both of the spouses and of the future offspring. y) Copula already having taken place between the betrothed, pregnancy, necessity of legitimizing the offspring. - Three distinct causes that require reparation, especially when the act was performed with the intention of more easily obtaining the dispensation. z) Removal of grave scandal. a') Cessation of public concubinage. - This cause resembles and is equivalent to the preceding one. b') Loss of virginity of the bride already having taken place through the action of a person other than the betrothed. c') Illegitimacy of the bride's birth. - This and the preceding are two defamatory causes, admitted only for the woman. d') Consensual flight of the betrothed. - This cause is admitted provided that afterwards the woman is placed in a safe place, and is capable of freely giving her consent to the marriage.
4. Impulsive causes for dispensation
a) Settlement of disputes in matters of succession. - If the petitioner must sustain a grave lawsuit for the succession of a substantial inheritance and only the bridegroom is prepared to bear the expense, or if the lawsuit is extinguished by the marriage. b) Need on the part of the petitioner for that particular woman because of his special necessities. - Whether to attend to his own children or to help him in the household or to assist him in illness. c) Good morals of both spouses. d) Particular suitability of the marriage, for particular advantages. e) Hope of conversion of the party. - This motive is valid in impediments of disparity of worship or of mixed religion, excluding however any pressure, even moral. f) Good of the parents in need of help. - It occurs when the parents of one of the spouses, sick or old or in need of assistance, derive benefit from the marriage.
The granting of the matrimonial dispensation takes place usually by rescript in commissory form. In order therefore to have effect, it is necessary that the document reach the executor, who, having established that everything corresponds to the truth, must give it execution, for the purposes of proof in the external forum, in writing (v. RESCRITTO). Moreover, in order to limit dispensations and almost as a penalty for the petitioners, and at the same time as a sign of homage to the Holy See for the benefit received, a tax or componenda is imposed on every dispensation, in proportion to the impediment dispensed and to the economic condition of the petitioners. This is unlike other dispensations, for which a tax equal for all is established. For those who are truly destitute the grant is made free of charge.
Bibliography14 works
III. IMPEDIMENTS TO THE SACRAMENT OF ORDER
Before the CIC the concept of impediments and of irregularities was not clearly defined: some distinguished irregularities from impediments, while the majority of writers, without hinting at any distinction whatsoever, indiscriminately called all impediments irregularities, whether temporary or perpetual.
The same dissonance was found regarding the number of impediments; thus, for example, Gasparri, who admitted the aforesaid distinction, enumerated 12 of them (Tractatus de sacra ordinatione, I, Paris 1883, no. 477 ff.), while other authors gave longer or shorter lists.
The CIC, establishing a clear distinction between irregularities and impediments, reduces the latter to the number of seven. A simple impediment, insofar as it is distinct from an irregularity, can be defined as a temporary impediment, established by ecclesiastical law, which 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, while the simple impediment is always temporary. An irregularity is distinguished into ex defectu and ex delicto, whereas a simple impediment does not admit of such a distinction. An irregularity can be introduced only by common law; a simple impediment, also by particular law. The effects of irregularities and of simple impediments, however, are identical; the primary and direct effect is to prevent the lawful conferral of first tonsure and of Orders; the secondary and indirect effect is to forbid the exercise of Orders received (cf. can. 968). Generally, impediments are understood as antecedent to Orders, even though they can survive them; their origin, moreover, varies; for some it is a personal fact freely placed (for example, marriage spontaneously contracted); for others, either a fact external to the person or a particular condition of things sanctioned by law; for example, military service, slavery, the persistence of non-Catholic parents in their error.
The following are simply impeded (can. 987): 1. "The children of non-Catholics, until their parents persist in their error." While under the old law even grandchildren were irregular, under the current law 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 it does not cease if the mixed marriage was contracted with the due dispensation, after the customary guarantees had been given. Even if some think otherwise, it is to be held that from the name of non-Catholics (apostates, heretics, schismatics, atheists) unbelievers are excluded. The impediment, established to remove the presumption against the children of non-Catholics regarding the stability or otherwise of their faith, ceases either through the effective conversion of the parents or of the non-Catholic parent to the faith, or, most probably, through their death, even if they persisted in their error. 2. "Married men." In former times this impediment and the two following were called ex defectu libertatis. Under the old law, even though the marriage bond persisted, the impediment ceased if the wife embraced the religious state or made a vow of chastity even while remaining in the world (Benedict XIV, De synodo dioecesana, I, XIII, 12, no. 13 ff.). Under the current law, however, marriage is an absolute impediment to receiving Orders, and it ceases only either through the cessation of the marriage bond in any manner whatsoever or through a dispensation of the Holy See, which is granted only with the free consent of the wife and after provision has been made for all the possible difficulties of the case. 3. "Those who exercise an office or an administration forbidden to clerics and of which they must render an account, until, having left the office and the administration and rendered the due accounts, they are free." What is forbidden to clerics is clearly stated in can. 139; and from the contrary sense it is deduced that many offices and administrations are not forbidden to clerics, such as administering the goods of churches, of pious places, exercising the office of municipal councillor, etc. 4. "Slaves in slavery properly so called, before they have obtained freedom." The slaves properly so called of whom the code speaks here and in can. 1083 § 2, fully reproducing the old law, are those who by the law of nations and against natural liberty are subjected to the dominion of another. This deplorable condition of things, always reproved by the Church, is no longer found in Europe and among civilized peoples, even though it may occur in mission lands, among savages. 5. "Those who according to civil law are bound to ordinary military service, before they have satisfied that obligation." Ordinary military service is that which young men, called to arms 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, ad 1); the corps to which they will be assigned does not matter. Furthermore, all those are impeded who, even if they will be so later, have not yet been called to arms either because of insufficient age or because at the military levy they were declared subject to re-examination (Commissio Interpretationis authenticae, 2 June 1918). Those, however, who after active service remain bound to the so-called annual exercises are not impeded. 6. "Neophytes, until, in the judgment of the Ordinary, they have been sufficiently tested." Those are called neophytes who, converted in adulthood, received Baptism absolutely. Excluded therefore are heretics who, having retracted their errors, are rebaptized conditionally. 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 faith and in Christian morals. 7. "Those struck by infamy of fact, until it, in the judgment of the Ordinary, persists." He incurs this impediment who, either through a crime committed or through bad morals, has lost his good reputation among upright and serious of the faithful, of which it is for the Ordinary to judge (can. 2293 § 3); the impediment ceases when the person regains his good reputation in accordance with can. 2295.
For excusing causes from impediments and the multiplication of the same, v. IRREGOLARITÀ.
Since all impediments are temporary by their nature, they cease first of all in the manner indicated for each of them, and thus through the cessation of the cause from which they draw their origin. Thus, for example, the first impediment ceases with the conversion of the parents to the true faith; the second, with the cessation of the marriage bond, etc. They also cease if the particular law from which they may have originated comes to an end.
Bibliography3 works
Pietro Bonaventura Cagnasso