ECCLESIASTICAL PROHIBITION. - This expression, according to the proper meaning of the words, would indicate any prohibition made by the Church to the faithful; but in canonical language it has been used principally in matrimonial matters.
Before the CIC the v. E. was one of the impediments to marriage, together with the closed season, betrothal and vow. It could have a general character, and then it was established by the Holy See; thus, for example, it was forbidden for all to contract marriage without the banns having first been published, children of a family were forbidden to marry without the consent or counsel of their parents, mixed marriages were forbidden. In particular cases a prohibition could be issued for determined persons, made either by the Pope or by a Sacred Congregation or by the bishop for grave and reasonable motives; as, for example, to prevent scandals or public harms or grave enmities, or on suspicion that some diriment impediment existed or that there was harm to third parties. In all these cases, if the marriage had been celebrated despite the impediment of the prohibition, general or particular, the marriage itself was valid, but illicit.
In the new matrimonial legislation, introduced by the decree Ne temere and retained by the CIC, the v. E. is no longer an impediment, not even an impedient one, but is preserved in the form of a counsel, a grave warning, a command, a practical norm, which does not hinder the validity of the marriage. The Holy See, however, and only it, could attach the invalidating clause to the prohibition.
Even today there are prohibitions established in general for all and particular prohibitions. The former are contemplated by the CIC, the latter can be imposed in individual cases either by the Holy See, that is by the Pope or by the Sacred Congregations that handle matrimonial cases, or by the Ordinaries. All these prohibitions, however, are temporary, so that, once the circumstances, the motives or the will that were their cause have changed, every effect of the prohibition ceases.
General prohibitions are those indicated in cann. 1065 and 1066. By the first the faithful are warned not to contract marriage with those who have fallen away from the Catholic faith, although they have not adhered to any non-Catholic sect, or are enrolled in societies condemned by the Church. These are not mixed marriages, properly so called, but they present almost equal dangers. Therefore the prohibition ceases either with the person's return to the faith, or with the furnishing of the guarantees required in cases of mixed marriages. By the second canon the parish priest is enjoined not to assist at the marriage of a public sinner or of a person notoriously fallen under a censure, and who has not first approached Confession or has refused to be reconciled with the Church. Once the scandal has been repaired, the prohibition ceases. As can be seen, in both cases the cessation of the prohibition depends on the will of the contracting parties. Other general prohibitions concern the marriages of the young: they are those which forbid the parish priest to assist at the marriage of those who have not yet reached the age determined by the customs of the region (can. 1069 § 2) or of minors who wish to marry without the knowledge or against the reasonable will of their parents (can. 1034).
A particular or personal prohibition established by the Holy See is, for example, the clause that is sometimes added to the dispensation from a ratified and non-consummated marriage with the words «vetito transitu ad alias nuptias inconsulta S. Congregatione» or «S. Sede», when doubt remains of impotence or of another cause of nullity. This prohibition is imposed in the rescript of grace issued by the Sacred Congregation of the Sacraments for the dispensations sought by it from the Holy Father, or in a sentence of the tribunal of the Sacred Roman Rota, following a papal audience, when from the process, rather than the nullity of the marriage, the proof of non-consummation emerges, or by the Sacred Congregation for the Eastern Church, for the faithful of the Eastern rite, when the two aforementioned cases occur; such a prohibition can be removed, once the doubt that provoked it has been removed.
The CIC (can. 1039 § 1) grants to Ordinaries the faculty of establishing prohibitions for their own subjects, wherever they may be, but in particular cases and temporarily, that is as long as the just cause that provoked them persists. Therefore Ordinaries sometimes forbid a marriage in order to prevent a scandal, forbid its celebration in the afternoon hours or in a private house, or defer the granting of the nulla osta in order to ascertain better that no causes of nullity exist, or other dangers or difficulties.
The parish priest, lacking jurisdiction in the external forum, cannot properly establish prohibitions, but in practice he can refuse his assistance at a marriage, when he judges that a grave cause exists for preventing or deferring it; in certain cases, however, he must have recourse to the Ordinary.
Bibliography
Giovanni Miceli