PUBLIC PROPRIETY (IMPEDIMENT TO MARRIAGE)

Public propriety may be defined as a certain propinquity of persons or quasi-affinity arising from an invalid marriage after common life has been established or from public or notorious concubinage. In deference to public decency, such unions create an impediment that invalidates the marriage of either party with the blood relations of the other party within the first degree of the direct line.

Most authorities maintain that the impediment of public propriety in church law derived from Roman law. The impediment in Roman law had its source in betroth-al—the Roman law Sponsalia. The canons in which Gratian presents impediments are considered by many to be apocryphal. The Council of Trent restricted the scope of the impediment (sess. 24, de ref. matr., c. 3). The decree Ne temere made a further restriction [Acta Sanctae Sedis 40 (1907) 525].

Similar legislation prescribes the impediment of public propriety in both Latin and Eastern church law (Codex iuris canonici, c. 1093; Codex canonum ecclesiarium orientalium, c. 810). It is apparent from the terms of the law that public propriety springs from a twofold source: invalid marriage after the establishment of common life, and public or notorious concubinage.

To give rise to the impediment under the rubric of invalid marriage after the establishment of common life, the union must have the semblance of marriage (species matrimonii ). As the so-called civil marriage of persons bound to the canonical form (Codex iuris canonici, c. 1108; Codex canonum ecclesiarium orientalium, c. 828) lacks this semblance of marriage, such a civil union is not, strictly speaking, an invalid marriage. However, such a civil union followed by cohabitation does give rise to the impediment (Response of the code commission, AAS 21 (1929) 171; Codex canonum ecclesiarium orientalium, c. 810 §1, 3°).

The second source of the impediment is concubinage. Only such concubinage as is either public or notorious gives rise to the impediment of public propriety. The term public means that the concubinage is known in the community. The term notorious signifies that concubinage is publicly known and lived in the community so that it cannot be concealed or excused.

This impediment is an ecclesiastical law impediment. Therefore, the local ordinary can dispense from it (Codex iuris canonici, c. 1078; Codex canonum ecclesiarium orientalium, c. 795).

See Also: marriage legislation (canon law).

Bibliography: a. bride, Dictionnaire de droit canonique, ed. r. naz, 7 v. (Paris 1935–65) 5:1179–1203. j. f. gallagher, The Matrimonial Impediment of Public Propriety (Catholic University of American Canon Law Studies Washington 1916–) 304. w. hÖrmann, Quasiaffinität, 2 v. (Innsbruck 1897–1906) 2:466–467. p. gasparri, De matrimonio …, 2 v. (Rome 1932) 1:728–248. j.p. beal in j. p. beal et al., New Commentary on the Code of Canon Law (New York 2000) 1294–1295.

[j. f. gallagher]