§ 195. 6) Non-Kinship Matrimonial Impediments

Besides the impediments to marriage that arise from the notion of kinship—physical, spiritual, or juridical—and that bar marriage with certain designated persons, there exist a further several matrimonial impediments that are independent of the notion of kinship, and these are:

1. Abduction. In canon law abduction (ἁρπαγή, raptus) is said to occur when someone, by deceit or by force, carries off a girl to some place where she is compelled to satisfy the abductor’s desire. Abduction was regarded as a transgression by both civil and ecclesiastical legislation of every age, and, as such, as a decisive impediment to marriage.[1] The Fourth Ecumenical Council, by its 27th canon, ordains concerning abduction “that those who, under pretext of marriage, abduct women, or assist abductors—if they are clergy, let them be deposed from their rank; if laymen, let them be anathema”;[2] and Basil the Great declares as fornication every marriage contracted after an abduction, and threatens excommunication of an entire locality if it receives and harbors an abductor.[3] Greco-Roman legislation, for its part, is so severe on this question that it decrees the death penalty for anyone found guilty of abduction, to say nothing of the fact that a marriage resulting from abduction can have no validity whatsoever.[4] Present-day legislation likewise regards abduction as a decisive matrimonial impediment.[5]

2. Adultery. As distinct from fornication (πορνεία) in general, adultery (μοιχεία, adulterium) is said to occur when someone, apart from his or her lawful spouse, enters into carnal union with some other person.[6] If adultery is proven, it constitutes an absolute impediment to marriage between the persons caught in it—of course, once the first marriage has ended, whether by the death of the lawful spouse or by divorce. The canons regard adultery as a transgression far graver than fornication, and prescribe severe penalties for it.[7] Greco-Roman legislation speaks in the same sense.[8] Both the canons and this legislation alike cite adultery as a matrimonial impediment for those persons who are convicted of that transgression.[9] Present-day legislation in the several states is in agreement with this.[10]

3. Incitement to divorce. Just as ecclesiastical, so too civil legislation permits a person who has been lawfully divorced from his or her spouse, and who bears no guilt for the marriage’s having had to be dissolved, to enter into marriage; but the new person with whom that divorced spouse marries must in no way have been implicated in the divorce—that is, must not have taken part in it or incited it.[11] Such conduct—that is, participation in a divorce and incitement to it—is regarded as a transgression, and by itself already constitutes a matrimonial impediment for the person who provoked the divorce with the intention of marrying the divorced spouse.[12]

4. Guardianship. Given the position occupied by a guardian (ἐπίτροπος, curator) toward the minors entrusted to his guardianship, Greco-Roman legislation forbids marriage between the guardian and those minors, and likewise forbids marriage with them to the guardian’s son or grandson, for as long as the guardianship in question continues.[13] In accordance with this legislation, the Church too forbids such a marriage, and, should one nonetheless have been contracted, orders that it be annulled as unlawful.[14]

5. Difference of religion. Given that fundamental feature which, among others, the notion of marriage presents to us—that it must be a union between husband and wife in everything touching religion—it follows of itself that where there can be no such union and unity of religion, there can be no marriage; and that, accordingly, a difference of religion between two persons who might wish to enter into a marital union must constitute an impediment to marriage. This is to be understood in the absolute sense where the marriage of a Christian with a person who does not profess the Christian faith is concerned; but where the marriage is between an Orthodox person and another person who professes some Christian faith, but not the Orthodox faith, this is to be understood in a relative sense, and it is from this that the so-called mixed marriages have arisen, which we discuss in § 204.

In the early Church there occurred marriages between Christians and non-Christians. Such marriages, even though the Church did not approve of them, were nonetheless tolerated, in the hope that by this means the non-Christian spouse might perhaps be converted.[15] But once Christianity became the dominant religion in the Greco-Roman state, and there arose a fear that Jews might, through a marital bond with Christians, perhaps induce some Christian to renounce his faith, the emperor Constantine issued, in the year 339, a law forbidding every marriage with Jews under threat of the death penalty.[16] This law was subsequently incorporated into the Christian canonical collections, and, alongside similar canonical ordinances, became binding upon all.[17] The prohibition of marriage between Christians and non-Christians still holds today as law in the respective states.[18]