§ 188. A. Absolute Impediments

Among absolute impediments, some are of such a kind that they prevent marriage with every person, and, if it has been contracted, wholly annul it; others prevent marriage only with certain particular persons.

I. To the impediments of the first kind belong:

1. Abnormal mental condition. This marital impediment is the consequence of that condition for marriage, that a person be in a normal mental condition when declaring consent to the marriage bond.

2. Incapacity to perform the marital duty. This too is the consequence of that marital condition which constitutes the essential purpose of marriage (§ 181.4).

3. Lack of the consent of elders. This constitutes a complete marital impediment only for minors in the civil sense, and for those who, by decision of the competent authority, are under guardianship (ἐπιτροπή, curatela), and are therefore incapable of an independent marriage contract (§ 181.5).

4. An already lawfully existing marriage. From the creation of the world and of man, marriage with one wife (μονογαμία) has been regarded as the only union corresponding to the purpose and essence of the marital bond. The Old Testament Church proclaimed this a divine law;[1] and Roman legislation ordains that everyone who wishes to have two wives must be branded with infamy.[2] The prohibition of polygamy received new force in the Christian Church, which calls every carnal union of a man with a woman, other than his one lawful wife, fornication.[3] On account of this, an already lawfully existing marriage became an absolute impediment to contracting a new marriage, and a man who enters a new marriage while his wife is still living, or a woman who marries another while her husband is still living, is subject to both church and civil punishment.[4] An exception to this is permitted only in such a case where the existing marriage was lawfully dissolved for some reason, and the spouse concerned obtained from the competent authority the right to enter a new marriage. A spouse who, through ignorance, enters a new marriage, believing the other spouse to be dead, is not subject to punishment—only, naturally, in such a case this new marriage ceases to exist.[5]

5. The bride’s want of virginity. When a man takes to himself as wife a girl, and not a widow, he has the right to presume that she is a virgin. If this does not prove to be the case with a girl entering marriage, this constitutes an absolute impediment to the marriage, and the marriage contracted between the man and such a girl is regarded as though it had never been contracted at all.[6]

6. Holy orders. By the canonical prescriptions of the Church, ordination constitutes an absolute marital impediment, and thus, once someone has been ordained deacon, he can no longer enter marriage, whether he received the diaconal ordination unmarried, or his wife whom he had taken before ordination has died. So the canons prescribe up to the 7th century;[7] and in that century the Council in Trullo forbade subdeacons to marry as well.[8] And from that time to the present it is a rule in the Orthodox Church that those who wish to enter the service of the Church may marry only before becoming subdeacons, and once they have become such, may no longer marry; and if they do marry, they are subject to punishment, and the marriage is annulled as unlawful.[9]

7. The vow of virginity. Here this vow is to be understood in the broadest sense, and without restriction to certain persons only; for besides monks and nuns, who took the vow of virginity on entering monastic orders, there were in ancient times also certain girls who, without entering monastic life, but living in secular dress and in cities with their parents or kin, consecrated themselves to God and gave, solemnly, before the bishop in church, a promise that they would spend their whole life in virginity. Having consecrated themselves to God, they were regarded as brides of Christ, to whom they offered their virginity as a sacrifice, and by the Church they were considered and called holy virgins, ἱεραὶ παρθένοι. As such, they were no longer permitted to enter marriage, for by doing so they would betray Christ, their bridegroom. In earlier times, however, disorders of this kind must have occurred, for we find canons that warn against them and prescribe penalties for those who break the vow they have taken. The Fathers of Chalcedon found themselves moved to repeat the earlier canons on this matter, and by their 16th canon they ordain that every such girl who breaks her vow must be excommunicated from church communion, exactly as any monk or nun found in the same case.[10] Having issued so strict an ordinance, this canon leaves it to the local bishop, according to his discretion, to apply that strictness in individual cases, that is, as Balsamon observes here, either to apply it in full or to mitigate it.[11] This, moreover, is not to be understood as meaning that the bishop may recognize as lawful a marriage contracted by the aforesaid persons, for this would contradict the canons that speak expressly of this, such as canon 18 of Basil the Great and canon 19 of Ancyra, which were issued before the Council of Chalcedon, and then canon 44 of the Council in Trullo and others issued afterward—but rather that he may, instead of excommunicating the transgressors entirely from church communion, impose upon them a greater or lesser penance instead.[12]

8. Widowhood after a third marriage. The canons permit a person widowed after a first marriage to enter a second marriage; they also permit, with a corresponding penance, a third marriage to a person widowed after a second marriage (§ 203). But if a person has been widowed even after a third marriage, that person can no longer enter into a new marriage. This was canonically established at the Council of Constantinople of the year 920, which ordained that no one may enter a fourth marriage (τέταρτος γάμος), and that if anyone does so, such a marriage is to be regarded as though it did not exist, and the persons concerned are to be punished with excommunication from the Church and forbidden even entrance into the church, so long as they remain in such a marriage.[13] This synodal ordinance, which was confirmed in the year 997 by both church and state authority, entered into all the canonical collections of the Orthodox Church,[14] and thus widowhood after a third marriage constitutes an absolute impediment to a new marriage.[15]

II. Impediments which prevent marriage with any person, but which, if it has already been contracted, do not annul it, but only render it unlawful, are these:

1. The prescribed age for marriage. Whoever lacks the age prescribed by church and state legislation for a lawful marriage (§ 181.2) is under a complete impediment to marriage on account of that deficiency. But if a marriage happens to have been contracted before the prescribed age, that marriage is considered unlawful until the spouses reach that age. When they reach it, and wish to remain in the marital bond, the marital impediment that existed up to the immature age ceases of itself, and the marriage is recognized as lawful, provided all the other conditions of marriage were observed at its contracting.

2. A time for marriage forbidden by the Church. A marriage contracted on those days and at those times when the Church does not permit it (§ 185) is likewise considered unlawful, and such a marriage requires subsequent convalidation from the competent church authority in order to become lawful.

3. Violence and fear. Marriage is an act of free will; hence if someone was compelled to marriage by violence, or contracted it because he feared some evil that threatened him, that person did not act of free will. Violence (βία, vis) generally occurs when someone is compelled to do something. It may be physical or moral. Of the first there can be no question in marriage, but there can be of the second—that is, when someone is intimidated by threats into consenting to marriage. Fear (φόβος, metus) is a violent movement of the soul, caused by dread of some evil. Violence stands to fear as cause to effect, and for this reason they are mentioned together in Roman marital law. They destroy the consent of marriage, and hinder that complete freedom which nature, the Church, and the state require in marriage.[16] In order for fear to become a marital impediment, it must be well-founded and proven by the real evil that caused it; and thus, in judging this impediment, attention must be paid both to the objective side of the fear, namely the kind of evil that threatens, and to the subjective side of the person who is frightened, or who causes the fear, for by the first the gravity of the threat will be known, and by the second its power over the soul of the person concerned. Violence and fear are regarded as a marital impediment in Orthodox church law on the same grounds on which this is regarded as an impediment in Roman law.[17]

4. Fraud is regarded as a marital impediment when a different person has, by fraudulent means, been substituted for the spouse someone thought he was entering marriage with, or when something is concealed from someone concerning a spouse that would deprive that marriage of its lawfulness. Old Roman law regarded fraud as a marital impediment, and today’s law, both church and civil, regards it as such as well.[18]

5. Betrothal is regarded, in the canon law of the Orthodox Church, as a marital impediment only when that betrothal was performed by the solemn church “послѣдованіемъ о обрученіи” [order of betrothal], and the person betrothed in such a way wishes to enter marriage with another person, and not with the one to whom they were betrothed. This marital impediment arises from the fact that in Orthodox church law church betrothal is regarded as equal to marriage;[19] and thus betrothal, in the matter of marriage, entails all those consequences which an existing marriage entails, as a marital impediment.[20] Today the “обрученіе” [betrothal] is generally performed together with the wedding, and so this marital impediment may be considered without practical significance; but since, by church statute, the “обрученіе” [betrothal] may be performed separately from the “вѣнчанія” [wedding], in such a case this marital impediment arising from betrothal may indeed still arise.[21]

6. An attempt against the life of the betrothed. If two persons have formally become betrothed, and it is proven that one of them plotted against the other’s life, in such a case marriage is forbidden to the guilty party, who is subjected to punishment.[22]

7. Penal servitude. Whoever is sentenced to hard labor for some crime cannot enter marriage, beginning from the day the judicial sentence is announced to him, until he has served his sentence. This marital impediment is prescribed by more recent civil legislation,[23] and in canon law it is not expressly mentioned, but since the cause of penal servitude is some crime, and for every crime the Church prescribes a longer or shorter penance for the criminal concerned, and for the duration of that penance forbids him to marry,[24] canon law too, from a different angle, regards penal servitude as a marital impediment.

8. Widow’s mourning. In Greco-Roman legislation great attention was paid to the year of mourning which a woman had to observe after the death of her husband, and during that time she was strictly forbidden to remarry. The Church fully adopted the prescriptions of that legislation in this regard.[25] This was prescribed for the sake of the respect a woman owes to the memory of her husband; and the same was afterward established also for a husband after the death of his wife.[26] As regards the woman, this was also prescribed in order that no doubt might arise as to the paternity of a child that might be born after the husband’s death.[27] More recent legislation, with regard to this last circumstance, shortened the period to six months from the day of the husband’s death.[28]

9. Belonging to the military. This marital impediment is regulated by more recent civil legislation, which prescribes when and under what conditions someone bound by military service may enter marriage.[29] The Church recognizes this marital impediment, first, because, according to her teaching, the person entering marriage must be free of all obligations that could hinder a proper marital life—as would necessarily be the case for persons belonging to the military—and further because she recognizes the jurisdiction of the civil authority in matters of marriage, and hence also its jurisdiction in prescribing the corresponding marital impediments (§ 180).

10. Lack of banns. If church legislation, like civil legislation, requires that the corresponding banns be published before every marriage (§ 184), it follows that failure to fulfill this legal requirement constitutes a marital impediment, unless the parish priest concerned has obtained permission from the competent authority to bless a marriage even without banns.[30]

11. Lack of the necessary written documents. Just as a lawful marriage cannot be contracted if the prescribed banns were not published, so likewise it cannot be done if the parish priest concerned does not have all the written documents that may be necessary for one marriage or another. Here belong all those documents pertaining to marriage—when one of the spouses is from another parish, when someone requires permission for marriage from the authority to which they are subject, when someone has obtained a dispensation from some marital impediment, and so on.[31] A parish priest who marries someone without the corresponding documents necessary to establish the lawfulness of the marriage in the event of a matrimonial suit is subject to penalties, both under church and under civil legislation.[32]