§ 197. Removal of Matrimonial Impediments

Subverting impediments to marriage cannot, as a rule, be removed, and a marriage contracted in the presence of one of these impediments must be dissolved (§. 196). To remove such impediments—or, to use the modern term, to grant a dispensation from these impediments and thus to legalize, to convalidate, some unlawfully contracted marriage—only that authority could do this which had the right to establish and determine the relevant subverting matrimonial impediments in the first place. That would be an ecumenical council, or the authority that, in the ordinary life [of the Church], generally takes the place of such a council. Only in extraordinary circumstances, when good order in the Church is threatened and some greater evil and scandal must be forestalled, do the canons permit the episcopal synod of the relevant church to relax the strictness of the law with regard to individual persons.[1]

As to the prohibitory matrimonial impediments—those not established by an ecumenical council, but which the ecclesiastical authority subsequently established and issued, as an extension of the fundamental laws, according to the circumstances of place and time—such matrimonial impediments may be removed, and dispensed from, and marriage permitted, by any bishop within his own diocese, or, if the marriage has already been contracted, he may convalidate it.[2] And accordingly, insofar as some of these prohibitory matrimonial impediments have been established and prescribed by civil legislation, the competent civil authority too may dispense from those impediments and convalidate the marriage.[3]

A dispensation, or remission of a matrimonial impediment, constitutes, for the person who receives that remission, a mercy on the part of the Church, and accordingly that person is bound by a particular gratitude to the Church, which gratitude he must actually demonstrate by some good and God-pleasing work. This customarily takes the form of a contribution of some kind to the Church or to some charitable brotherhood, at the direction of the ecclesiastical authority that issued the dispensation, and this is nowadays commonly called a matrimonial penance [епитимија]. A dispensation from some matrimonial impediment must, as a rule, be sought by the person concerned directly from the competent authority before the marriage is contracted, and only in exceptional cases may the parish priest do this on that person’s behalf. A dispensation may be issued only where there exist very weighty and justified reasons, of which the competent authority is to judge, and accordingly either to issue the dispensation or to refuse it. Whoever enters into marriage without a dispensation is liable to penalty, especially if he deliberately concealed the relevant matrimonial impediment for which a dispensation was required.[4] A dispensation may also be sought after a marriage has already been contracted, when the relevant matrimonial impediment was unknown before the marriage and came to light only after the marriage had been concluded. In this case too the competent authority is much more lenient in granting the dispensation, solely in order to remove the scandal and to preserve, within the bounds of what the law allows, the reputation of the family.

Once the relevant matrimonial impediment has been removed, there follows the convalidation of the marriage in question. This convalidation may occur either a) by means of a dispensation, or else b) when the causes that constituted an impediment to a given marriage cease [to exist]. Of the former we have already spoken; the latter occurs: 1. when a marriage was contracted before the age prescribed by law, and the persons concerned subsequently reach that age; 2. when one spouse was incapable of performing the conjugal duty, and is subsequently cured of this; 3. when violence, fear, or fraud was employed against some person in the contracting of the marriage, and that person subsequently declares his or her consent to the marriage; 4. when there was a state of mental abnormality in the person concerned at the time the marriage was contracted, and that person is subsequently cured of it and, in full possession of his or her faculties, declares consent to the marriage; 5. when the elders did not consent to some marriage, but subsequently give their consent to it; 6. when a baptized person contracted marriage with an unbaptized person, and that unbaptized person subsequently becomes a Christian. The convalidation of a marriage is proclaimed by the authority generally competent in matrimonial contentious matters. This very act must be recorded in the parish register of marriages, and the marriage in question, previously regarded as unlawful, becomes lawful from that time.

IV. THE LEGAL CONSEQUENCES OF MARRIAGE.