The Gazette 1978

GAZETTE

SEPTEMBER 1978,

existence of impediments which may take some

considerable degree of proof; and the informal or

administrative process, which is used in the case of other

impediments the existence of which can be established

solely from documents.

B. Diriment Impediments which may Require Proof by

the Formal Nullity Process.

(i)

Age:

The current law of the Church stipulates that a

valid marriage cannot be contracted by a boy uhtil he has

passed his sixteenth birthday and by a girl until she has

passed her fourteenth birthday. This impediment of lack

of age (or nonage) is one of ecclesiastical origin. The

canonical rule applies to all baptised persons and

therefore if any marriage takes place in which one or both

of the parties are under age and baptised and no

dispensation has been granted the marriage could be

found to be invalid. Whereas the impediment of nonage

does not apply to the unbaptised, they are bound by the

requirements of the natural law that the parties have

sufficient knowledge and discretionary ability concerning

the obligations of marriage as well as the ability to assume

them, in order to marry validly. Although ordinarily the

unbaptised would not be subject to a nullity procedure,

were this to happen and the lack of age was to be alleged

then it would be necessary to show that the natural law

requirements were not fulfilled as the actual impediment

of nonage could not be alleged. Normally, where a case

involving an unbaptised person was brought forward, it

would be more likely to be dealt with by means of the

totally different procedure of a dissolution of the natural

bond.

(ii)

Abduction:

This is not an impediment which

has very much relevance today. It is an impediment of

ecclesiastical law. The Canon Law states that if a woman

has been abducted by a man with a view to marriage a

diriment impediment exists invalidating such a marriage

while the woman remains in the power of her abductor.

(iii)

Crime:

The name of this impediment is

misleading, as it has a very specialised meaning in this

context. It is also an impediment of ecclesiastical origin.

There are three forms or degrees of this impediment,

although the proposed new Code of Canon Law intends

to reduce these three to one only (being the third one now

listed). Firstly, there is the situation in which, during the

valid marriage of a couple one of the spouses commits

adultery and with this third person exchanges a promise

to attempt marriage, even only a civil marriage. The

impediment prevents the spouse of the marriage and the

third party from marrying even after the death of the

other spouse of the valid marriage. Secondly there is the

situation in which, during the lifetime of the existing

spouse, the other spouse commits adultery, and one of

them (the other spouse or the third party) kills the

remaining spouse. Thirdly, there is the situation in which,

even though there has been no adultery, one of the

spouses and a third party mutually co-operate in the

killing of the spouse. Normally the Church would not

dispense from this impediment, but the Church might do

so in certain very grave circumstances where the facts are

entirely secret and there is no likelihood of the truth

becoming known generally.

(iv)

Public Propriety:

This impediment of ecclesiastical

law invalidates a marriage between a man and

grandmother, mother, daughter or granddaughter of the

woman with whom he is "living", whether the living

together arises out of an invalid marriage (whether

consummated or not) or arises from "public or notorious

concubinage".

(v)

Legal Relationship:

This impediment of

ecclesiastical law prohibits the marriage of those who are

disqualified from marrying by civil law as a result of some

legal relationship arising from adoption.

(vi)

Impotence:

This is an impediment of the Divine (or

natural) law. Antecedent and perpetual impotence,

whether on the part of the man or the woman, whether

known or unknown, whether absolute or relative

invalidates the marriage by the law of nature itself.

Sterility, however does not invalidate a marriage. In

simple terms impotence can be described as the inability

to perform the marital act, whereas sterility would be

described as the incapacity for generation. The

impediment of impotence exists if it is a condition

antecedent to the marriage and perpetual, i.e. cannot be

cured. "Absolute" impotence refers to that condition

which exists regardless of the partner involved, i.e. the

party would be impotent regardless of his partner.

"Relative" impotence exists where a person is impotent

with one person, but would not necessarily be so with

another. Because impotence is an impediment of the

natural law, it affects both the baptised and the

unbaptised, unlike impediments originating from

ecclesiastical law, which only bind the baptised.

It should be noted that there is a difference between the

Canon Law and the Civil Law in this area. In Civil Law

there are grounds for annulment if a partner to the union

was unable or unwilling to consummate, but there is not

ground for nullity of impotence so called. However, in

Canon Law, impotence is a ground for nullity, but where

a marriage is alleged to be unconsummated and a plea is

made to the Pope on this count, the petition is for a

dispensation of the marriage (not a declaration of nullity)

on the grounds of non-consummation.

Diriment Impediments which may be dealt with by

means of the Informal (or Administrative) Process

This procedure merely demands that the impediment is

shown to exist by means of certain and authentic

documents rather than by formal verbal evidence.

(i)

The Impediment of Prior Marriage (or "Ligamen"):

A person who is bound by the bond of a valid marriage

may not contract a further marriage. However, it may be

possible to declare the first marriage invalid for some

reason, in which case it would be possible for the person

concerned to marry, provided that the nullity (or

dispensation from an unconsummated union or

dissolution of a non-sacramental union) has been properly

established according to ecclesiasitcal law. This

impediment is one of Divine Law and, therefore, it binds

even the unbaptised.

(ii)

The Impediment of Disparity of Cult:

This

impediment is of ecclesiastical law and binds only

Catholics. By this impediment a marriage which takes

place between a person bound to the form of Catholic

marriage and a person who has not been baptised,

without the necessary dispensation, is invalid. As the

impediment binds only Catholics marrying unbaptised

persons, it does not affect the status of the marriage of the

baptised non-Catholic who marries an unbaptised person.

(iii)

The Impediment of Holy Orders:

The basis of this

impediment of ecclesiastical origin is that a cleric who is

in major orders, priesthood or diaconate, cannot validly

marry unless the impediment has been dispensed by the

appropriate authority.

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