Marriage Impediments by Fr Lawrence Ogundipe SDV

 

INTRODUCTION

Tertullian’s treatise on marriage[1] may not be classified among his major writings, but they help us to understand the gradual deterioration of the thought from Catholic orthodox to the harsh extremes of fanatical Montanism, over the years theologians have used his treatise on marriage to support their argument on the importance and sacramental nature of Christian marriage. “Ad uxorem”[2] Discussed how, and why to re-marry is wrong, he points out the problem of remarriage outside the faith in clear terms. It appeared that Tertullian married a Christian girl. He wrote this treatise on marriage in his church mind, perhaps according to what was in vogue; the Gnostics position against every form of marriage, for them it is sinful to get married. This position is not held on to by Christianity as such, Tertullian rebuts them by writing two letters to his wife where he elaborates ‘Marriage’ and ‘Re-Marriage.’ According to him if his wife must re-marry, she must make sure that she gets married to another Christian and proper dispensations should be followed.

In this work therefore we shall expose the canonical impediments to catholic marriage in simple but systematic language to educate intending couples on what may make their marriage invalid or illicit.

FIRST OF ALL WHAT IS MARRIAGE?

According to Can. 1055

•      §1 The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptized, been raised by Christ the Lord to the dignity of a sacrament.

•      §2 consequently, a valid marriage contract cannot exist between baptized persons without its being by that very fact a sacrament.

WHAT IS AN IMPEDIMENT?

In the canon law of the Catholic Church, an impediment is a legal obstacle that prevents a Sacrament from being performed validly and/or licitly. The term is used most frequently in relationship to the sacraments of Marriage and Holy Orders. Some canonical impediments can be dispensed by the competent authority[3] as defined in Canon Law.

Impediments to marriage

Roman Catholic sacramental theology teaches that the ministers of the sacrament of holy matrimony are the man and woman, and therefore any marriage contracted voluntarily between two baptized and unmarried adults is valid, though under ordinary circumstances the marriage must be witnessed by clergy to be licit. However, various provisions in current canon law outline extraordinary circumstances that would form impediments to marital validity.

The validity of an action is distinguished from its being licit in that the former pertains to its integrity while the latter its legality. (An analogous illustration might be that of a disbarred lawyer who wins a court case; the verdict is not overturned, but the attorney is still subject to sanctions. Similarly, a priest who has been laicized, suspended, or excommunicated cannot licitly celebrate Mass, but should he nonetheless do so, the Mass is still considered valid. But Illicit

Impediments to marriage are classified according to many different criteria.

In regard to their effect on the sacrament, impediments are either diriment[4], which invalidate an attempted marriage, or prohibitive (or impedient), which make a marriage illicit but valid. "Diriment" comes from the Latin word dirimens ("separating"), that is, an impediment that means the couple cannot be joined. The 1983 Code of Canon Law does not list prohibitive impediments as such, and thus the distinction between validity and licitness is less clear than in previous formularies.

In regard to their origin, impediments are either from divine law, and so cannot be dispensed, or from ecclesiastical law, and so can be dispensed by the competent Church authority. Under the 1983 Code of Canon Law, ecclesiastical impediments only apply to marriages where one or both of the parties are Catholic. Under the prior 1917 Code, ecclesiastical impediments applied to the marriages of non-Catholic Christians as well, unless specifically exempted.[5] The Catholic Church now recognizes the diriment impediments of other (i.e., non-Catholic) Churches and ecclesial communities when their members are parties to a marriage.

Impediments are also classified as follows:

PUBLIC: which can be proved in the external forum, or

OCCULT: which cannot be so proved; absolute , which apply to one party regardless of the other party, or relative, which apply only in relation to certain other parties; Permanent or temporary, according to the duration of the impediment; and whether they can be dispensed by the local ordinary under ordinary circumstances, or whether their dispensation is reserved to the Pope

LIST OF DIRIMENT IMPEDIMENTS TO MARRIAGE

Age.[6] If the man is under 16 years of age, or the woman is under 14 years of age, then their marriage is invalid. This is an ecclesiastical impediment, and so does not apply to a marriage between two non-Catholics. However, in a marriage between a Catholic and a non-Catholic, the age limitation applies to the non-Catholic party as well.  Each national Episcopal conference has the authority to set a higher minimum age as a prohibitive impediment. In general, individual bishops do not have this authority (cf. CIC c. 1075 §2).  In Canada, and also in New Zealand, this minimum age has been set to 18 years old for both parties.  In England and Wales, this minimum age has been set to be in accordance with civil law (i.e., 16 years old for both parties).  In Gambia, Liberia, and Sierre Leone, this minimum age has been set to 18 years old for the man and 16 years old for the woman.  In the Philippines, this minimum has been set to 21 years old for the bridegroom, and 18 years old for the bride. In South Africa, and also in Switzerland, this minimum age has been set to be in accordance with civil law.  In Nigeria, the Episcopal conference has delegated the authority to set a higher prohibitive minimum age to the individual bishops.  The United States Conference of Catholic Bishops has not enacted a higher prohibitive minimum age for marriage.

Physical capacity for consummation is lacking.[7] Canon 1084 §3 "Without prejudice to the provisions of Canon 1098, sterility- the absolute or probable inability to have children due to defects or abnormalities in the reproductive organs or other associated organs, or of the germ cells (the ova and sperm), neither forbids nor invalidates a marriage." Both parties, however, must be physically capable of completed vaginal intercourse, wherein the man ejaculates "true semen", even if the amount is small and/or if there are no viable sperm, into the woman's vagina (even if the cervix or uterus are absent, the ova are absent or non-viable, or the vagina is deformed). To invalidate a marriage, the impotence must be perpetual (i.e., incurable) and antecedent to the marriage. The impotence can either be absolute or relative. This impediment is generally considered to derive from divine natural law, and so cannot be dispensed.  The reason behind this impediment is explained in the Summa Theologica: "In marriage there is a contract whereby one is bound to pay the other the marital debt: wherefore just as in other contracts, the bond is unfitting if a person bind himself to what he cannot give or do, so the marriage contract is unfitting, if it be made by one who cannot pay the marital debt."

PREVIOUS MARRIAGE[8]: Previous marriages, whether conducted in the Catholic Church, in another church, or by the State. All previous attempts at marriage by both parties wishing to marry must be declared null prior to a wedding in the Catholic Church, without regard to the religion of the party previously married. Divine, absolute, temporary.

Disparity of cult[9]: A marriage between a Catholic and a non-baptized person is invalid, unless this impediment is dispensed by the local ordinary. Ecclesiastical, relative.

Sacred orders: One of the parties has received sacred orders. Ecclesiastical, absolute, permanent (unless dispensed by the Apostolic See).

Perpetual vow of chastity: One of the parties has made a public perpetual (not just temporary vows or the novitiate or postulancy) vow of chastity . Ecclesiastical, absolute, permanent (unless dispensed by the Apostolic See).

Abduction: One of the parties has been abducted with the view of contracting marriage. Ecclesiastical.

Crimen[10]: One or both of the parties has brought about the death of a spouse with the view of entering marriage with each other. Ecclesiastical, relative, permanent (unless dispensed by the Apostolic See). Under the Decretals of Pope Gregory IX, the requirements were that either the adulterous pair should promise marriage after the death of the spouse, or that they should attempt marriage while the spouse was still living. While both partners had to be aware that they are committing adultery, affected ignorance , ignorance from refusal to investigate what they are doing, does not remove it. If the pair who wishes to marry co-operated to kill the spouse of one of them, in order that they might be free to marry, the impediment is invoked, even if they had not committed adultery. Likewise, if one of an adulterous pair killed a spouse (of either partner) in order to marry, the impediment is invoked. Only the pope may dispense this impediment; there are no instances in which any pope has done so.

Consanguinity: The parties are closely related by blood. Ecclesiastical or divine, depending on the degree of relationship.

Affinity: The parties are related by marriage in a prohibited degree.

Public propriety[11]: The parties are "related" by notorious concubinage . (Example: A man and a woman live together without marrying; this impediment prevents the man marrying the woman's mother or daughter–but not the woman herself–even if the cohabiting relationship has ended or the woman has died.) Ecclesiastical, relative, permanent.

Adoption:  The parties are related by adoption. Ecclesiastical, relative, permanent.

Spiritual relationship: One of the parties is the godparent of the other. This no longer applies in the Latin Rite, but still applies in the Eastern Catholic Churches.

OTHER FACTORS WHICH INVALIDATE MARRIAGE

LACK OF FORM: When a marriage of a Catholic takes place without following the laws and rites of the Catholic Church.

COERCION:  This impediment exists if one of the parties is pressured by any circumstances to enter into marriage. (In order for the impediment to cease, the situation must change so that the party can marry freely of his or her own will.)

PSYCHOLOGICAL IMMATURITY OR MENTAL INCAPACITY: To enter into sacramental marriage, both parties must understand and have the capacity to accept the minimum of what it entails.

REFUSAL TO HAVE CHILDREN:  One of the goods of marriage is children. A man or woman physically capable of fathering or, respectively, conceiving a child but who intends never to have children may not marry in the Catholic Church.

EXCLUSION OF FIDELITY: Fidelity of each party to the other is a good of marriage. If this is specifically excluded in the mind of either party, the couple may not marry in the Catholic Church.

 

CONCLUSION

Marriage as a divine institution aimed at communion of life among couples and procreation and education of children is very essential to every society. Marriage helps to create healthy families which are in turn the bases of every society because it remains indisputable that whenever the family catches cold the society will automatically sneezes.  Based on this reality, the issue of marriage must be carefully handled in every society. For this to be, we need to learn from the church fathers, and put into considerations the youth of the contemporary society who wants to get married at all cost without the necessary pre-marital preparations. 

For us in Africa marriage is a sacred institution, it is more than a contract between two individuals or bilateral contract, rather, it is understood as C. Mba, beautifully puts it, “not only as an alliance, a bound, or a covenant between two individuals, a man and a woman, but also as an alliance between two family groups or kindred communities”[12] This covenant is only concretized in the spouses and so, none of them can break this sealed covenant without the knowledge of the involved communities.

Marriage in the African customary law may therefore be defined as: “the union of a man and a woman for the duration of the woman’s life”.[13] In Igbo custom, the marital relationship is so strong that even death of the wife does not necessarily dissolve the bound between her maiden family and her husband’s family. Often times when the man dies the children re-marry their mother to enable her remain in that family house till her death.

I hereby submit that this generation should retrieve the work of Tertullian on marriage as a remedy for the current divorce ‘madness’ that is common among the youths of this contemporary society.

 

 

 

 

BIBLIOGRAPHY

The code of cannon law A text and Commentary New York: Paulist Press, 1985

Tertullian, Treaties on Marriage and Remarriage. Tansl. By William p. Le Saint, Westminster, Maryland: The Newman Press, 1951.

OTHER SOURCES

https://en.m.wikipedia.org/wiki/Impedimen_(canon_law)  Jan 18 2019 11am

Etafo, B.E., & Okeke H.O, Marriage and family in Nigeria, Nigeria: Scamps Comm Prod, 1997.

Hubertus R, Drobner, The Fathers of the Church. U.S.A: Hendrickson publishers, 2007.

Quasten Johannes, & Plumpe Joseph, Ancient Christian writers. Washington, D.C: The Newman Press, 1953.

The Catechism of the Catholic Church, Nairobi: Pauline Publications Africa, 1994.

The Anchor Bible Dictionary Vol. 2, Edited by David Noel Freedman, New York: Doubleday, 1992.

The New Reversed Standard Version Bible, Washington, D.C: Bible Society Resources Ltd, 2008.

 Encyclopædia Britannica. Encyclopaedia Britannica Student and Home Edition.  Chicago: Encyclopædia Britannica, 2010.

 

 

 

 

 

 

 

 

 

---

[1] He wrote it around 200 – 206 ad

[2] Meaning to my wife

[3] usually the local ordinary but some impediments are reserved to the Apostolic See

[4] Damage

[5] Note that, as clarified by articles 2 and 4 of Dignitas Connubii

[6] Can. 1083 §1 A man cannot validly enter marriage before the completion of his sixteenth year of age, nor a woman before the completion of her fourteenth year. 2 The Episcopal Conference may establish a higher age for the lawful celebration of marriage.

[7] Can. 1084 §1 Antecedent and perpetual impotence to have sexual intercourse, whether on the part of the man or on that of the woman, whether absolute or relative, by its very nature invalidates marriage.§2 If the impediment of impotence is doubtful, whether the doubt be one of law or one of fact, the marriage is not to be prevented nor, while the doubt persists, is it to be declared null. §3 Without prejudice to the provisions of can. 1098, sterility neither forbids nor invalidates a marriage.

 

[8] Can. 1085 §1 A person bound by the bond of a previous marriage, even if not consummated, invalidly attempts marriage. Even though the previous marriage is invalid or for any reason dissolved, it is not thereby lawful to contract another marriage before the nullity or the dissolution of the previous one has been established lawfully and with certainty.

 

[9] Can. 1086 §1 A marriage is invalid when one of the two persons was baptised in the catholic Church or received into it and has not by a formal act defected from it, and the other was not baptised. §2 This impediment is not to be dispensed unless the conditions mentioned in cann. 1125 and 1126 have been fulfilled. §3 If at the time the marriage was contracted one party was commonly understood to be baptised, or if his or her baptism was doubtful, the validity of the marriage is to be presumed in accordance with can. 1060, until it is established with certainty that one party was baptised and the other was not.

[10] Can. 1090§1 One who, with a view to entering marriage with a particular person, has killed that persons spouse, or his or her own spouse, invalidly attempts this marriage. §2 They also invalidly attempt marriage with each other who, by mutual physical or moral action, brought about the death of either’s spouse.

[11] Can. 1093The impediment of public propriety arises when a couple live together after an invalid marriage, or from a notorious or public concubinage. It invalidates marriage in the first degree of  the direct line between the man and those related by consanguinity to the woman, and vice versa.

 

[12] Etafo B & Okeke H,O, Marriage and the Family in Nigeria, (Nigeria Scamps Comm.,1997),p.1

[13] Etafo B & Okeke H,O, Marriage and the Family in Nigeria, (Nigeria Scamps Comm.,1997),p.8