§ 196. The Consequences of Matrimonial Impediments

Every marriage that was contracted in the presence of one of the impediments to marriage established by law is called, by the general name, an unlawful marriage (ἄθεσμος γάμος, nuptiae illegitimae). In keeping with Roman law, canon law too divides marriages that were not lawfully contracted (μὴ ἐννόμως γινομένων γάμων, quae legitime non contrahuntur) into: 1) forbidden marriages (ἀθέμιτοι, incestae, illicitae), if contracted between persons who are in kinship; 2) unlawful marriages in the narrower sense (παράνομοι, nefariae)—for example, a marriage of a guardian with a female ward entrusted to his guardianship; and 3) condemned marriages (κατάκριτοι, damnatae)—for example, with a nun; and all such marriages must, according to the canons, be dissolved (δισπᾶσθαι, dirimendas).[1]

This dissolution or annulment of a marriage already contracted in the presence of the relevant impediments occurs absolutely (ἀπολύτως), if the impediment was an ἀνατρεπτικὸν κώλυμα (“subverting” impediment); but if it was only an ἀπαγορευτικὸν κώλυμα (“prohibitory” impediment), then that annulment occurs only relatively (σχετικῶς)—that is, the marriage is dissolved until the impediment that at the moment of its contracting stood in the way of its being lawful is removed (§ 187).

The subverting impediments are: 1) an already lawfully existing marriage (§ 188, I, 4); 2) the bride’s non-virginity (§ 188, I, 5); 3) holy orders (§ 188, I, 6); 4) a vow of virginity (§ 188, I, 7); 5) a fourth marriage (§ 188, I, 8); 6) kinship up to and including the fourth degree, in the sense of canon 54 of Trullo; 7) affinity up to and including the fourth degree, in the sense of the same canon of Trullo; 8) the second affinity up to the first degree; 9) spiritual kinship up to and including the second degree, in the sense of canon 53 of Trullo; 10) adultery (§ 195, 2); 11) guardianship (§ 195, 4).

A marriage contracted in the presence of one of the impediments now enumerated is dissolved and annulled. This is done by the authority competent in matrimonial contentious matters, either of its own motion, as soon as it learns of such a marriage, or else upon the petition of one of the spouses.[2] The judicial procedure here is the same as that established for matrimonial suits in general (§ 147, II, III).

The consequences of the annulment of an unlawful marriage concern: a) the persons who entered into such a marriage; b) the priest who blessed that marriage; and c) the children born of such a marriage. As to the first, the canons, and likewise the civil laws, ordain that they be subjected to the corresponding penalties according to the kind of impediment in question in which they contracted the marriage, and having regard to whether they did so deliberately, and to what extent they repent and acknowledge their fault.[3] The priest who blessed the unlawful marriage, if it is proven that he knew of the relevant matrimonial impediment, is deprived of his position and deposed.[4] Children of such a marriage are regarded as, and are, illegitimate (ἀνέγγυοι παῖδες, illegitimi), do not enter into any relation of kinship with legitimate children, and are deprived of the right of inheritance.[5]

If a marriage was contracted in the presence of one of these impediments, even the gravest of them, but this was done through the ignorance of the persons concerned, who believed that they were acting entirely in accordance with law, in such a case the canons judge such a marriage more leniently, and although it must be dissolved as soon as its unlawfulness is discovered, those who lived in such a marriage, and the children of that marriage, and consequently also the priest who blessed the unlawful marriage in ignorance, are nonetheless not subjected to all the aforementioned consequences.[6]