The Gazette 1978

SEPTEMBER 1978,

GAZETTE

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. C. 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. 141

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