Canonical Impediments

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General notion of an impediment

The Latin wordimpedimentum signifies directly whatever embarrasses or hinders aperson, whatever is an obstacle to his movements, and in this sense the baggage of an army was calledimpedimenta. Juridical language applies the term to whatever hinders the free action of an agent, or to whatever prevents him from performing, or at least from performing regularly, any act that thelaw takes cognizance of. The impediment therefore affects directly the juridical capacity of the agent, restrains it, or even entirely suppresses it; indirectly it affects the action itself, which it renders more or less defective or even null. An impediment consequently produces its effect by reason of a defect; it ceases when the agent has legally recovered his capacity, whether that be by adispensation or by his fulfilling the conditions requisite for the act he wishes to perform. The impediment, in other words, the restriction or suppression of the juridical capacity of the agent, may arise from naturallaws fromDivine law, or from human law,ecclesiastical or civil; we may, however, point out that certain cases of nullity, certain defects of acts that thelaw takes cognizance of, are caused by the absence of an essential constitutive element; for example in the case of a contract imposed by force on one of the parties, there would be no impediment unless in a wide improper sense of the term. This generalidea of impediments is applicable to all those acts in regard to which thelaw regulates the juridical capacity of the agents; for instance, acquisition ofjurisdiction, contracts in religious matters, thesacraments. Canon law affords a multitude of examples. Alayman, aheretic, anexcommunicatedperson is incapable of acquiringspiritual jurisdiction; better known are the restrictions placed on minors, religious, children not yet emancipated, etc., in the matter of making contracts; finally, there are many legal obstacles affecting the capacity of thefaithful to receive licitly or even validly,baptism, confirmation, penance, and particularlyHoly orders and matrimony.

Canon law uses the word impediment in its restricted and technical sense, only in reference to marriage, while impediments toHoly orders are spoken of as irregularities (q.v.). We may remark, however, that several real impediments or obstacles to the reception ofHoly orders are not called irregularities: thus,women and unbaptizedpersons, who are byDivine law incapable of beingordained, are not termed irregular. But speaking of matrimony, the word impediment refers to all obstacles, whether arising from natural orDivine law. Another interesting fact is that whereas the word impediment has thus acquired a precise technical meaning in canon law, the cognate wordsimpedire,impediens,impeditus, have preserved their wide grammatical signification and may be applied to other matters; so writers speak of those unable to go personally toRome to be absolved from censures asimpediti adire Romam, and the Constitution "Apost. Sedis" speaks of those who hinder (impedientes) the exercise ofecclesiastical jurisdiction.

Impediments to marriage, in general

The fundamentalidea of an impediment to matrimony is contained implicitly in the well known prohibitions of Leviticus and some ancient canonical texts; in the latter may be discovered the basis of the celebrated distinction between diriment impediments which render a marriage null and void, and prohibitory impediments which only render it illicit; sometimes the canons of councils insist on the separation of the parties who have violated thelaw, which implies that the marriage was void; sometimes, on the contrary, they exact only an expiation or reparation, without dissolving the conjugal union, which implies that the marriage was valid though more or less in opposition to thelaw. But these ancient canonical texts do not give a complete list of impediments, much less a general theory concerning them. It is only at the end of the twelfth century that we find, for the first time, the use of the word "impediment" in its technical sense, together with a catalogue of matrimonial impediments. In his "Decree", Gratian neither speaks definitely, nor does he give a satisfactory list; nor doesPeter Lombard in his "Sentences". About 1190Bernard of Pavia uses freely the expression, which became classical, "impedit contrahendum et dirimit contractus", and further he enumerated the impediments: "sunt autem quæ matrimonium impediunt xiv", but his list is not definitive; the technical names of each impediment remain for some time longer unsettled. However thedoctrine of the School soon becomes fixed and with it the terminology. The distinction between diriment and prohibitory impediments is sharply marked, and a more or less successful attempt is made to classify the diriment impediments. Their number is not yet determined, not because thedoctrine is uncertain, but because several of them may be included under the same title. Certain canonists try to limit them to the quasi sacred number fourteen (twice seven); others reckon twelve, sixteen, or even more. The gloss of the "Decree" (Causa xxvii, q. 1, vº "Quidam", before can. i) says there are sixteen matrimonial impediments, fourteen of which are diriment; it enumerates them without order in the following distichs:

Votum, conditio, violentia spiritualis,
Proximitas,error, dissimilisque fides,
Culpa, dies vetitus, honor, ordo, ligatio, sanguis,
Quæ sit et affinis, quique coire nequibit,
Additur his ætas, habitum conjunge furoris;
His interdictum subditur Ecclesiæ.
Hæc, si canonico vis consentire rigori
Te de jure vetant jura subire tori.

In spite of its insertion in the gloss, this enumeration was not adopted permanently, doubtless because it did not separate the prohibitory from the diriment impediments, and because the former class was incomplete. The list that was received almost universally, and which, with a few changes, still figures in most canonical treatises on marriage, and is followed step by step, by many authors including St. Liguori (Theol. Mor., I, VI, n. 1008), was composed by Tancred (1210-1214). It contains four prohibitory impediments separated from thirteen diriment:

Ecclesiæ vetitum, tempus, sponsalia, votum,
Impediunt fieri, permittunt facta teneri.
Error, conditio, votum, cognatio, crimen,
Cultus disparitas, vis, ordo,ligamen, honestas,
Dissensus, et affinis, si forte coire nequibis,
Hæc facienda vetant connubia, facta retractant.

But after theCouncil of Trent, which created the impediments ofabduction andclandestinity, these thirteen were increased to fifteen; the last hemistich, "si forte coire nequibis", was replaced by "si clandestinus, et impos"; and forabduction was added the hexameter "Raptave sit mulier, loco nec reddita tuto". Though this method of enumerating them is so common, it is not satisfactory, being somewhat confused. No official list of impediments has ever beenpromulgated, and indeed it would be very difficult to compile such a list, as there are many ways of reckoning the impediments improperly so called, all of which may be included under a defect of consent, such, for instance, aserror, insanity, constraint, dissimulation and others. It is possible likewise to count in different ways the prohibitory impediments among which that of "mixed religion" must be included. Of the many definitions of matrimonial impediments formulated by canonists, we prefer that of D'Annibale (Summula, III, n. 428): "Any circumstance of which thelaw takes cognizance that is opposed to a licit or valid marriage."

Impediments have been classified and divided in many ways, of which the following are the more important.

Marriage is juridically a contract, and aChristian marriage does not cease to be a contract because it is a sacrament. Being a sacrament it is a sacred thing, and as such is subject to the authority of the church; and, being a contract, the church can establish impediments to matrimony, either personal or formal. Having the power to establish them, she can abrogate them, modify them, and, consequently, dispense from them in individual cases (seeMARRIAGE;DISPENSATION).

Impediments to marriage, in particular

The following is the list of the impediments of marriage arranged in what seems the mostlogical order, with the essential notions on each, except where reference is made to special articles.

Prohibitory impediments

That is to say, those which render a marriage illicit, but do not impair its validity.

Betrothal

A valid engagement tomarry, entered into by twoindividuals, constitutes an absolute, prohibitory impediment, that is, an obstacle to any other marriage; by plighting his troth, the man creates a correlative right on the part of thewoman, and any other marriage would be a violation of that right (seeBETROTHAL).

Vow

Such also is the case of avow, not anyvow whatsoever, but avow of chastity, and moreover a simplevow, for a solemnvow of chastity constitutes a diriment impediment. Theobligation byvow towardsGod is an obstacle to any marriage; consequently it too is an absolute prohibitory impediment (seeCHASTITY, andVOW).

Mixed marriage

Whereas the marriage of abaptizedperson with an infidel is null and void, the marriage of aCatholic with abaptized non-Catholic is the object of a prohibitory impediment, mixed religion (mixta religio); it is therefore a relative impediment. For thedispensation in case ofmixed marriages and the conditions attached to it see MIXED MARRIAGES.

Vetitum Ecclesiæ

A prohibition, in the form of a precept, imposed byecclesiastical authority on a particular individual, would also be a personal impediment if it had a general character; it affects only the capacity of an individual. This precept is imposed to delay a marriage until a given condition has been fulfilled, for instance, till the removal of the obstacle to a marriage arising from a precedingbetrothal to anotherperson.

Forbidden times (tempus clausum, tempus feriatum)

Is only an impediment improperly so-called, because it does not affect the personal capacity of the contracting parties, and, because it prohibits, not the marriage itself, but only the solemn celebration of the marriage; although, intruth, it is used commonly as if it forbade the marriage. These forbidden periods, though formerly much longer, were reduced by theCouncil of Trent (Sess. XXIV, cap. x, "De Reform. Matrim.") to the two following times: fromAdvent to the Epiphany, and fromAsh Wednesday toLow Sunday.

Diriment impediments

That is to say those that render the marriage null and void, form three groups:

First type

Impediments properly so called, which are personal incapacities, some absolute, some relative. Two arise from the physical incapacity of the subject: impuberty and impotency.Puberty is the state of physical development requisite for generation. The age of puberty varies with the individual and the climate; the legal presumption of theRoman law fixed it at twelve years for girls and fourteen for boys. The church has followed this rule or presumption, but it has not made want of a fixed age an impediment properly so-called which would render the marriage void under every hypothesis. It is presumed that young people reach the age of puberty at twelve and fourteen; it is presumed that they do not reach it before this time; but if as a matter of fact they have reached it, and a marriage be necessitated by the circumstances of the case (quando malitia supplet ætatem), the marriage is valid withoutdispensation. Formerly realdispensations from this impediment were granted, but on the condition that the common life should begin only later.Impotency is the state of one who is incapable of normal sexual relations. It is clear that an impotentperson cannot validly contract marriage since he is physically incapable of realizing its object. For this particular impediment we must refer to the technical treatises on the subject and limit ourselves to some conclusions. The impotency which is acause of nullity is the incapacity of having conjugal relations (impotentia coeundi), not incapacity of engendering (impotentia generandi), in other words, sterility. No one is presumed impotent once he has reached the legal or real age of puberty; consequently, no one, except eunuchs, can be prevented by authority from marrying (Sixtus V, 27 June, 1587). The different classifications of impotency, absolute or relative, antecedent or subsequent, perpetual or temporal, to be met with in various treatises, are of no practical importance now. Only perpetual antecedent impotency is acause of nullity; nowadays it is seldomnecessary to examine too closely into this matter, as all cases arising from it are treated as far as possible under the form ofdispensations of non-consummated marriages.

Next we have an impediment based on the presumption of want of consent,abduction (raptus). In as far as it is an impediment, it is the incapacity of the abductor of contracting valid marriage with thewoman whom he hasabducted, until she has first been allowed to go free. Two impediments arise from religiousobligations which exclude marriage with anyperson whosoever they are: A solemnvow (votum), that is to say, avow taken in an order that has a solemn profession of its members, whether men orwomen; andHoly orders (ordo), that is to say, the sub-diaconate and major orders. Another impediment of a religious nature is that called disparity of worship (cultus disparitas); it renders void the marriage of aChristian with an infidel, that is, of abaptizedperson with one who is unbaptized (seeDISPARITY OF WORSHIP). Next in order we have a previous matrimonial engagement (ligamen), an impediment rendered void any marriage of a marriedperson, during the lifetime of theperson to whom he or she has been validly married. The respect due to marriage hascaused to be prohibited the union ofpersons who have attacked thesanctity of the marriage of one or other of the parties by killing his or her partner, or by committingadultery with a promise of marriage or an attempted marriage; that is the impediment of crime (crimen). (See CRIME.)

Finally, respect due tofamily and kin forms the basis of the impediment of relationship (cognatio), which occurs in five forms:

Second type

The second kind comprises the only diriment impediment that is based on a question of form, to wit, clandestinity.

Third type

Next we have the impediments, improperly so called, which do not affect the capacity of the agent, the nullity of the marriage being caused by a defect of consent. This defect may arise from theintellect or the will; hence we have two classes. Arising from theintellect, we have: insanity; and totalignorance, evenin confuso, of what marriage is (thisignorance however is not presumed to exist after the age of puberty has been reached); and lastly,error, where the consent is not given to what was not intended. All cases oferror do not annul a marriage but only those that arise from anerror regarding aperson (error personœ) or a quality affecting aperson (redundans in personam). There is anerror affecting aperson that forms a separate class, namely, a mistake relating to his liberty (conditio servilis): a marriage with a slave who is believed to be free is null and void. Arising from the will, a defect of consent may be caused through deceit or dissimulation when one expresses exteriorly a consent that does not really exist; or from constraint imposed by anunjust external force, which causes the consent not to be free (vis et metus). Finally a consent, even real, is destroyed if to the contract be added clauses or conditions contrary to the essential elements ofmarriages, asdivorce oradultery; but it must be noted that a mere concomitant intention is not acause of nullity; not being expressed formally as a condition, it is presumed non-existent. It is clear that the impediments improperly so-called are as varied as the ways in which the validity of the matrimonial consent, psychologically considered, can be affected.

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