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Canon Law for Today

By Rev. Frank Morrisey

12/31/2014
Rev. Frank MorriseyChurch has 12 impediments to marriage, for good of people and society

 

There are a number of reasons why a person cannot get married either in the church or in society. For instance, civilly, in Canada those who are already married cannot get married again until the existing marriage is dissolved (otherwise, this would constitute bigamy). Persons are unable to marry close relatives (this could constitute incest).

The church lists 12 impediments in the Code of Canon Law. Some of these are perpetual (marrying one’s brother or sister); others are temporary (lack of required age). Some can be dispensed (perpetual vows), others cannot (impotence).  Some of them relate to the very nature of marriage itself (pre-existing bond, impotence), while others, for instance, refer to the common good of society (crime, adoption)

It would not be possible in a short column to examine all the details relating to each of the impediments. What follows, then, is a general presentation. It would be necessary to consult further concerning whether or not the impediment exists in a given situation.

The first impediment listed (canon 1083) concerns the required age, and allows the bishops’ Conference to determine a higher age than the minimum of 16 for a boy and 14 for a girl. In Canada, the minimum age is now set at 18.

The second concerns impotence, which is described in the code as pertaining to the very nature of marriage. Before this impediment takes effect, it must be clearly determined that it is both antecedent to the marriage and is perpetual in its nature. The code distinguishes clearly between impotence, which is the incapacity to have conjugal relations, and sterility, which is the incapacity to have children. While the former constitutes an impediment, the latter does not.

The third impediment, one that is encountered quite frequently, is known as “pre-existing bond” (canon 1085). This means that a person has already been validly married, and that this marriage has not been dissolved in the eyes of the church. The work of the marriage tribunals consists in determining whether or not the impediment exists. In a subsequent column, we will examine some of the grounds of nullity of marriage currently recognized by the church.

The fourth impediment is known as “disparity of worship” and consists in having a Catholic marry a person who has not been baptized. The diocesan bishop may dispense from this impediment, and the norms for mixed marriages then apply.

The following two impediments apply to those who have received sacred orders in the church, or who have professed a perpetual vow of chastity in a religious institute. Thus, a permanent deacon who becomes a widower cannot marry again unless a special dispensation is granted by the Holy See.

Fortunately, the seventh impediment, abduction, does not apply too frequently in Canada (canon 1089). It apples to a woman who has been abducted, and lasts until she has been set free and is able to make a personal decision. This impediment might, however, take on new meaning today when dealing with the sex slavery that we do, unfortunately, encounter in Canada. This is one canon that applies presently to women, but not to men. Cases of entrapment usually do not come under the impediment, but the eventual freedom of the parties to marry must be clearly determined.

The eighth impediment is known as “crime,” where a spouse either kills a present spouse, or lets out a contract for someone else to do so, in order to be free to enter into a new marriage. Close co-operation with the civil authorities is required in such a case.

The following four impediments refer to blood and family relationships. All of these impediments concern an eventual marriage between a man and a woman. They do not apply to eventual same-sex unions since these are not recognized canonically.

The first of these is known as “consanguinity” (canon 1091). A person can never marry an ascendant or descendant in the direct line. That is, a man may never marry his mother, grandmother, daughter or granddaughter, and vice versa. Also, there are other relatives that a person cannot marry; these are in the “collateral” line. Thus, a brother cannot marry his sister, nor can an uncle marry his niece, and vice versa. The same applies to first cousins.

The impediment of affinity refers to a person wishing to marry a relative of the former spouse in the direct line. Thus, a man may not marry his mother-in-law, or daughter-in-law, and vice versa.

There is also a rather rare impediment, known as “public propriety” (canon 1093). A person who lives in concubinage, without marrying the partner, cannot later marry that partner’s child or parent (canon 1093).

The final impediment is known as “legal adoption” (canon 1094). A person who is legally adopted cannot marry the adopting parent, nor an adopted brother or sister, depending on the case.

All of these impediments have as their purpose to promote good order, both in the family and in society. They have changed slightly through the years; for instance, it is no longer forbidden to marry one’s sponsor in baptism or to marry one’s sister-in-law; the former age for marriage was 14 and 12. It is always possible for the church to re-examine some of the impediments included in this list.

Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 21st article in a series.