Matrimony — The Church Has Control over the Sacrament

Chapter 5: The Church’s Control over Christian Marriage — Impediments

In this chapter we purpose to show, (1) that the Church possesses control over Christian marriage; (2) that this control is based on a positive divine law and can be exercised independently of the secular power; (3) that the Church has the exclusive right to establish diriment impediments.

Section 1: The Church Has Control over the Sacrament of Marriage

1. The Dogma. The contracting parties, the officiating priest, and the required witnesses are by no means the only persons who have a part in the administration of Matrimony. The Pope and the bishops, as representatives of the Church to whom our Lord has entrusted the administration of all the Sacraments,¹ also play an important role.

One of the palmary rights of the Church in connection with marriage is to establish and to dispense from diriment impediments.

Luther and Protestants generally admit those impediments which are mentioned in Leviticus, but deny that the Church has the power to establish others. This attitude is entirely consistent on the part of men who do not regard Matrimony as a Sacrament.

Against the Protestant Reformers the Council of Trent defined: “If anyone saith that the Church could not establish impediments dissolving marriage, or that she has erred in establishing them, let him be anathema.”² Luther’s pet theory is expressly condemned in canon 3 of the same Session: “If anyone saith that those degrees only of consanguinity and affinity which are set down in Leviticus can hinder matrimony from being contracted, and dissolve it when contracted, and that the Church cannot dispense in some of those degrees or establish that others may hinder and dissolve it, let him be anathema.”³

2. Proof of the Dogma. The Church is infallible, indefectible, and holy; and hence, if she attributes to herself and exercises a right, that right undoubtedly belongs to her. Now it is a fact that, constantly asserting her claim, she has established diriment impediments since the fourth century. Consequently, she had the right to establish such impediments.

a) The major premise of this syllogism belongs to Apologetics or Fundamental Theology. The minor must be proved from history.

The Council of Elvira, A.D. 300, regarded the defect of Baptism (disparitas cultus) as a diriment impediment.⁴ The Council of Neocaesarea, 314, mentions affinity among the diriment impediments.⁵ St. Basil (d. 379) says no man can marry a woman with whose sister he has had illicit intercourse.⁶ Pope St. Leo the Great (d. 461) ordained for the diocese of Rome that no deacon should marry, and that if a man espoused a slave, mistakenly thinking her to be free, the marriage should be null and void (impedimentum conditionis).⁷ Gregory the Great (d. 604) forbade marriages between first cousins, which were permitted under the Roman law.⁸ Spiritual relationship arising from Baptism was made a diriment impediment by the Council in Trullo (692).⁹ A synod held at Mayence, in 813, prohibited marriage in the fourth degree of consanguinity and designated the spiritual relationship arising from Confirmation as a diriment impediment.¹⁰ Pope Zachary testified at the Roman Council of 743 that the archbishops and princes of Germany had asked him for instructions with regard to marriage.¹¹ Pope Nicholas I (d. 867), in confirming the diriment impediments of consanguinity and spiritual relationship, cited “the sacred canons, and especially the decrees of Pope Zachary.”¹²

b) In order to understand how the Church can invalidate the Sacrament of Matrimony without changing its matter and form, we must consider that the validity of the Sacrament is conditioned by the validity of the matrimonial contract. By nullifying the contract, the Church deprives the Sacrament of its basis. The validity of the contract does not depend solely on the free will of the contracting parties; it depends also on the will of God, which may manifest itself in a threefold manner: through the law of nature, through a positive law, or through an ecclesiastical precept.¹³

Hence there are three distinct classes of diriment impediments:

(1) Impediments flowing from the law of nature (e.g. impotency, error, violence);

(2) Impediments set up by a positive divine law (e.g. the bond of an existing marriage);

(3) Impediments established by ecclesiastical law (e.g. clandestinity, difference of religion, affinity).

No matrimonial contract is valid if the contracting parties are incapacitated for marriage by the law of nature, by a positive divine law, or by the law of the Church.

Persons thus incapacitated are technically known as inhabiles. A marriage entered into with such a person is null and void because there can be no true and binding consent between inhabiles. These considerations explain why the Church can establish diriment impediments without altering the matter and form of the Sacrament. Both matter and form of Matrimony consist in the valid consent of the contracting parties. Where there is no valid consent, there can be no valid marriage, and hence no Sacrament.¹⁴ Conversely, the Church can, by establishing impediments, render a marriage unlawful, but she cannot prevent it from being sacramental if the underlying contract is valid.

3. Two Functions of Ecclesiastical Authority. As the Church has the power to regulate Christian marriage, she must also have the power of dispensing from diriment as well as forbidding impediments (potestas dispensandi) and of haling matrimonial causes before her judgment seat (potestas iudicialis).

The potestas dispensandi is exercised both in foro externo and in foro interno, and extends to all impediments, except where the natural or a positive divine law form an insuperable obstacle; it may also validate an invalid marriage in radice.

The potestas iudicialis is the power to pass definitive judgment on all matters pertaining to the essence of Matrimony, e.g. the dissolubility or indissolubility of the bond,¹⁵ matrimonial engagements (sponsalia), separation from bed and board, etc. In regard to the latter, the Tridentine Council declares: “If anyone saith that the Church errs in declaring that, for many causes, a separation may take place between husband and wife in regard of bed or cohabitation, for a determinate or for an indeterminate period, let him be anathema.”¹⁶ As matrimonial laws bind the universal Church, the Pope is the only competent authority for the definitive adjudication of marriage cases and the granting of dispensations, and no bishop can do anything without his consent.

A dispensation is a special exemption granted from the requirements of a law or rule.¹⁷ What is the extent of the papal power of dispensing from diriment impediments to Matrimony?

All the diriment impediments to marriage but one are enumerated in the following hexameters:

Error, conditio, votum, cognatio, crimen, Cultus disparitas, vis, ordo, ligamen, honestas, Aetas, affinis, si clandestinus et impos, Raptave sit mulier, parti nec reddita tutae: Haec socianda vetant connubia, facta retractant.

Of these fifteen impediments, five are based partly on the natural and partly on positive divine law. They are: (1) ligamen, i.e. the impediment of existing marriage; (2) error, i.e. a mistake as to the person married, either before or at the time of the marriage; (3) vis or metus gravis, i.e. grave fear, unjustly caused, for the purpose of extorting matrimonial consent; (4) consanguinitas, i.e. blood relationship within certain degrees; (5) impotentia, i.e. an antecedent incapacity to perform the functions of the married state. From these impediments not even the Pope can dispense. With regard to the impedimentum ligaminis, note that the dissolution of the marriage bond in certain cases¹⁸ is not, properly speaking, effected by a dispensation but either by divine law or in virtue of the loosing power exercised by the Supreme Pontiff in the name of Christ.

The impedimentum voti arises from the solemn vow of chastity taken by religious. Being based upon a promise made directly to God, rather than to the Pope or the Church, this impediment is of divine right, but as it is self-imposed and a matter of free choice, there is no contradiction involved when the Pope, for weighty reasons, after lifting the solemnitas voti, which is of purely ecclesiastical institution, dispenses from the simple vow of chastity just as he can and does dispense from a promissory vow (iuramentum promissorium).

Under the Code of Canon Law relationship by adoption in regions where this is an impediment under the civil law, has been added to the fifteen impedimenta dirimentia mentioned above. This, like the others not based on the natural or divine law, is of purely ecclesiastical institution, and it needs no argument to prove that the Church can dispense from laws of her own making.

The only difficulty arises in connection with the dispensation technically known as sanatio in radice, by which a marriage invalid from the beginning is made valid just as if there had been no ecclesiastical impediment.¹⁹ How can the Church do this? Are we to assume that the Pope is able to undo past deeds or that his power is retroactive?²⁰ Nothing of the kind. The sanatio in radice is simply a fictio iuris, by which an invalid marriage, besides being made valid by a dispensation (ex nunc), is juridically regarded as if it had been valid from the beginning (ex tunc). The principal effect of this measure is to legitimize children begotten before the revalidation.²¹