FREE STATE. - F.s., or more precisely freedom of state, is the condition in which spouses must find themselves in order to contract marriage validly. In a broad sense it is immunity from all those things that oppose its valid and licit celebration, but in a stricter sense, both in civil and in canon law, it means that the contracting party is not bound by any juridically valid matrimonial bond. In the contrary case, because of the existing impediment of ligamen (v. LIGAMEN), the new marriage would be null.
The necessary proof of free status is matched in canon law by the pre-matrimonial process (v. INVESTIGATIONS), which must establish the absence or otherwise of obstacles or impediments. The free status of spouses is canonically proven by documents and by testimonies or assurances in the form established by law.
I. DOCUMENTS
1. The certificate of Baptism (can. 1021 § 1) is the first of the documents that can prove freedom of state, provided that it is of recent date and issued for marriage purposes, that is, containing the obligatory marginal notes. It is in fact prescribed to annotate in the margin of the Baptismal registers the reception of Confirmation and of Holy Orders, the celebration of marriage and religious profession (cans. 777 § 1, 1103 § 1).
2. The document of the banns having been published with negative result is another proof of freedom of state; and since the banns may be obligatory in different parishes (v. PUBBLICAZIONI MATRIMONIALI), sometimes not one but more than one such document is required.
3. When one of the contracting parties comes from or has resided in places other than that of the celebration or in which the prematrimonial process is carried out, instead of the document of the banns, the certificate of freedom of state is requested from the respective Curia, which is issued either following banns relating to the said contracting party alone without relation to the other, or after accurate searches in the parish registers or reliable information from persons who may be aware of the person's freedom of state (can. 1023 §§ 2-3). Even the certificate of freedom of state issued by the civil authority can sometimes be useful and in certain cases must be requested.
4. Other documents proving freedom of state for particular cases are: a) the certificate of death or the legal declaration, civil or ecclesiastical, of the presumed death of the deceased spouse or of the spouse presumed to be such, when the matter concerns widowers or presumed widowers; b) the definitive sentence of nullity of a previous marriage, or the dispensation from a ratified and non-consummated marriage, when there has previously been a null or dispensed marriage. Such a sentence, however, or dispensation must not contain a prohibition against contracting a new marriage. Naturally these documents must be of recent date, to exclude the possibility that in the interval some other bond may have been contracted.
II. WITNESSES AND ASSURANCES
Proof of free status is also obtained by means of witnesses and assurances.
In the preliminary process the first to be questioned on the matter are the spouses themselves. Each of them must produce two witnesses; but the witnesses of one may also testify for the other. Nevertheless, if, despite everything, doubts remain with the parish priest that are not purely negative, either because he is not sure of the truthfulness of the spouses or of their witnesses, or for other reasons or circumstances, he must question some other person who may presumably be in a position to know whether the spouses have contracted some bond not publicly known. The oath must be administered to all. Although the CIC (can. 1019 § 2) prescribes it only when the proofs are not entirely conclusive or in case of danger of death, many parish priests nonetheless administer the supplementary oath to all spouses or even to other persons, so called because it is meant to supply the evident proofs that are lacking.
In conclusion, the parish priest, in order to have at least moral certainty of the free status of both contracting parties, must observe the prescriptions of the CIC and of the Ordinary, and employ all those precautions that circumstances might suggest to him, not excluding the intervention of the Ordinary himself in complicated or very doubtful cases.
Even civilly, free status is proved by documents and testimonies. Searches are likewise made in the registers of the civil registry and the banns are published. For testimonial proof recourse is had to the notarial attestation. In cases where one spouse has been abroad or in other places, the certificate of free status issued by the respective local civil authority is also required.
Bibliography2 works
Giovanni Miceli