Obstructing Impediments

8. Error

The impediment of error is recognized by canon law only as regards the person of the other part, but not as regards quality or condition (with the single exception of freedom). Here error as regards the person arises especially when the party believed to be the party of the second part is known to the party of the first part, who here makes the error, only, by virtue of quality or condition, provided this is distinctly characteristic of the party of the second part (error qualitatis in personam redundans). Some Evangelical agenda of the sixteenth century consider the absence of virginity, the actual pregnancy of the bride by a third person (with reference to the Mosaic law), and incurable contagious diseases as conditions justifying a claim for an annulment of marriage on the plea of error. Later Protestant doctrine and practise are inclined to attribute that effect to every physical or moral defect which in a similar degree affects the nature of the marital relation. So far as the fact of error is considered impedimental, it makes no difference whether it was caused or used through fraud or not. The canon law does not recognize fraud as an absolute impediment. In the Evangelical Church the opposite opinion has never become the general consensus, though it has often been stated with very different bases and limitations, and has occasionally been enforced and made the subject of special legislation.

9. Obstructing Impediments

Canon law allows marriage to be contracted under postponing conditions. The contracting parties are lawfully, but not conjugally, united. As soon as the conditions are complied with, the marriage takes place. The deficient condition forms an impedimentum deficientis conditionis appositæ. Impossible or immoral conditions are not considered binding, but a secondary stipulation nullifying one of the tria bona matrimonii (fides, proles, sacramentum) makes the marriage illegal. The permission of the bishop and notice to the officiating priest are necessary. Lack of parental consent is considered an impedimentum impediens in canon law, since the conjugal sacrament is brought about by the contracting parties themselves, and since a third party should not be allowed to decide on the validity of the sacrament. Protestant law, however, referring to the Fifth Commandment, and civil law differ here from canon law, although both provide temporary limitations and afford protection against arbitrariness on the part of the parents. A simple obstructing impediment is raised by the tempus clausum, or the seasons of Advent and Lent, in which, according to ancient ecclesiastical custom, marriages were considered inadmissible, though the Council of Trent (sess. xxiv., canon x.) restricted this prohibition to marriage festivals. The custom was retained among Protestants, but with modifications in detail. An obstructing impediment is given by the vetitum or interdictum ecclesiæ, by which the provisional prohibition of marriage issued by ecclesiastical authority because of the suspected presence of a diriment impediment or objection does not militate against the validity of a marriage legal in itself, yet contracted in spite of the prohibition; although, until this prohibition is

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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.]