RELIGIOUS ENCYCLOPEDIA
Marriage
removed, it naturally makes the marriage in question unpermitted and subject to the punishment of the Church. The effect of an obstructing impediment is also possessed by betrothal in the narrower sense, and, in Roman Catholic canon law, by the simple vow of chastity. [In some countries the annus luctus, " year of mourning," is a period during which a widow may not contract marriage, unless she has born a child after the death of her husband. The object of this provision is to prevent ambiguity in the matter of paternity.]
The removal of impediments takes place of itself where they are based on transient reasons, although this does not validate a marriage contracted under conditions invalidated because of impediments. Private impediments arising from lack 10. The of consent or faulty consent can be re- Removal moved only by later full consent of the oflmpedi- parties concerned. If, however, the ments. marriage is to become valid, Roman Catholic practise requires a renovatio consensus in the Tridentine form, where this has been introduced, unless the impediment has been kept secret. Public impediments which can not be removed of themselves can be removed only by dispensations; but this course is possible only in cases which are not considered to be based on divine law. Roman Catholic practise, therefore, absolutely denies the possibility of dispensation in the case of an impediment of an existing marriage, or of relationship in the direct line and the first like degree of the collateral line. On the other hand, the impediments of difference in religion of affinity proper in the direct line, and of crimen ex occisione coniugis cum adulterio later becoming publicly known are held to be only generally incapable of dispensation. By the third canon of the twenty-fourth session of the Council of Trent it was expressly declared that the Church can grant dispensations in certain degrees of consanguinity and affinity mentioned in Leviticus. In the Evangelical Church all Mosaic prohibitions of affinity and relationship, usually with generalizing extensions, were formerly considered as incapable of dispensation, with the exception of marriage with a brother's widow, from whioh the law itself granted a certain degree of dispensation in the levirate marriage. In more recent times it has become the prevalent opinion in the Evangelical Church that only the impediments of relationship and affinity in the direct line and of consanguinity in the first degree of the collateral line are absolutely debarred from dispensation. In the Roman Catholic Church the pope has the exclusive right of granting dispensations from all diriment impediments, as well as from the obstructing impediments of mixta religio and of the simple vows of perpetual chastity or of entrance into a religious order. All other dispensations are granted by the bishops, each in his own diocese, although the pope delegates to the bishops the exercise of varying portions of the power of dispensation reserved for him.
4. Dissolution of Marriage: Dissolution of marriage, according to canon law, which is followed by all modern civil legislations, takes place ipso jure only through death; during the lifetime of both parties a marriage, even though existing simply de
facto, can be dissolved only by legal decision or by dispensation, except in the case of the annulment of an unconsummated marriage by a of Dissolu- vow' Possible according to the laws of tionof *^e R°man Catholic Church. In Marriage, general a distinction must be drawn between a dissolution of the nuptial tie (a vinculo matrimonii), thus permitting remarriage, and mere separation from bed and board (separatio a toro et mensa), which, according to the law of the Roman Catholic Church, can be only for life (perpetua), but according to Protestantism may be merely temporary (temporaria) . In the dissolution of marriage distinction must be made between dissolution on account of a marriage impediment (annulment) and dissolution of legal matrimony (divorce, q.v.). The bull Dei miseratione of Benedict XIV. (Nov. 3, 1741) contains strict rules for the proceeding of the ecclesiastical courts with reference to the annulment of marriage; and among these regulations is the very pertinent principle, retained in later civil law, that in all procedure for annulment of marriage there must be an official " Defender of the marriage tie " (q.v.) to protect the interests of the religious or civil community in maintaining the marriage. It is characteristic of Roman Catholic Church law that the entrance of one of the parties into a monastery or a papal dispensation can annul a marriage not yet consummated, and hence not yet sacramental.
Real divorce, as an arbitrary deed of one party, legally permitted under certain conditions by Mosaic and Roman law, is referred to in the wellknown sayings of Christ, and is opposed by his words: " What God hath joined to-
2. In the gether, let not man put asunder." The Early Church, therefore, has always regarded,
Church. ancj must ever regard, divorce as incompatible with true Christian sentiment. From this the Roman Catholic Church has drawn the inference that the law must treat a consummated (and thus sacramentalized) marriage as so absolutely indissoluble that all divorce, even for adultery, is precluded, even though it may be granted by the courts. Augustine (De fide et operibus, iv. 19) considered it at least doubtful whether in that case sanction might be given to a simple separation of the innocent party, who was not, however, to be permitted to marry again until the death of the guilty party. An African synod of 407 expressly recognized the right of the Church to prevent the remarriage of the guilty party, though only by means of church discipline; since to secure the legal impossibility of such remarriage, the Church could only request the passage of an imperial law. Among the Germanic nations even the Roman Catholic Church allowed real divorces, at least by way of " dissimulation," as late as the ninth century.
As soon as the Western Church obtained entire jurisdiction and legislation concerning marriage, however, every indulgence ceased; although it was clearly recognized that while real divorce was no longer possible, it was imperatively necessary that a separation should be allowed which should maintain the marriage and yet abrogate cohabitation, permanently in case of adultery. The consequences
Marriage