Dispensation (Catholic canon law)

• 1. Conceptual Foundations Of Dispensation

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  In the jurisprudence of the canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of the law in certain cases. The Law of Christ Vol. I, pg. 284 Its object is to modify the hardship often caused by rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases. Since laws aimed at the good of the entire community may not be suitable for certain cases or persons, the legislator has the right, sometimes even the duty, to dispense from the law. Dispensation is not a permanent power or a special right, as in privilege. If the reason for the dispensation no longer exists, then the dispensation also ceases to exist. Canon 93, 1983 Code of Canon Law, accessed June-5-2013 NewAdvent.org "Dispensation", accessed June-5-2013 If the immediate basis for the right is withdrawn, then the right ceases.

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• 2. Historical Evolution And Trent Reforms

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  The actual practice of the Roman Catholic Church is based upon the decisions of the Council of Trent, which left the medieval theory intact, while endeavouring to guard against its abuses. The proposal put forward by the Galician and Spanish bishops to subordinate the papal power of dispensation to the consent of the Church in general council was rejected. The canons of the council of Trent, in so far as they affected reformation of morals or ecclesiastical discipline, were decreed "saving the authority of the Holy See" (Sess. xxv. cap. 21, de ref.). At the same time, it was laid down in respect of all dispensations, whether papal or other, that they were to be granted only for just and urgent causes, or in view of some decided benefit to the Church (), and in all cases for free. Payment of money for a dispensation would void the dispensation (Sess. xxv. cap. 18, de ref.).

• 3. Papal Authority And Curial Administration

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  Dispensations are divided into two categories: general, and matrimonial. Matrimonial dispensations can be either to allow a marriage in the first place, or to dissolve one. The authority for the pope to exempt an individual or situation from a law stems from his position as the Vicar of Christ, which implies divine authority and knowledge, as well as jurisdiction. The pope cannot dispense from impediments founded on Divine law, except in the case of vows, non-consummated marriages, or valid and consummated marriage of neophytes before baptism. In doubtful cases, however, he may decide authoritatively as to the objective value of the doubt. As a rule, the pope exercises his power of dispensation through the Roman Congregations and Tribunals.

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• 4. Matrimonial Impediments And Exceptions

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  A matrimonial dispensation is the relaxation in a particular case of an impediment prohibiting or annulling a marriage. It may be granted in favour of a contemplated marriage or to legitimize one already contracted; in secret cases, or in public cases, or in both; in the internal forum only, or in the external forum, which includes the former. Dispensation in the internal forum is not always restricted to secret cases (). These expressions are by no means identical. Until around the 1900s, the Dataria was the most important channel for matrimonial dispensations when the impediment was public or about to become public within a short time. The Holy Office, however, had exclusive control in the external forum over all impediments connected with or juridically bearing on matters of faith, e. g. disparity of worship, holy orders, etc.

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• 5. Hierarchical Powers Of Bishops And Priests

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  By virtue of their jurisdiction, bishops can dispense from impediments not reserved to the pope. The reserved impediments are engagements, the vow of perpetual chastity, and vows taken in diocesan religious institutes, public display and solemn blessing at marriages within forbidden times, a vetitum, or interdict laid on a marriage by the pope, or by the metropolitan in a case of appeal. By virtue of a decree of the Congregation of the Inquisition or Holy Office (the 20th of February 1888) diocesan bishops and other ordinaries may dispense in very urgent () danger of death from all diriment impediments, whether secret or public, of ecclesiastical law, except priesthood and affinity from lawful intercourse in the direct line. This privilege can only be used in favour of persons actually living in real concubinage or united by a merely civil marriage, and only when there is no time for recourse to the Holy See.

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• 6. Procedural Mechanics Of Petitions

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  When there is occasion to procure a dispensation that exceeds the powers of the ordinary, or when there are special reasons for direct recourse to the Holy See, procedure is by way of a petition and private rescript. The petition must not necessarily be written by the petitioner, nor even at his instance; it does not, however, become valid until he accepts it. Since the Constitution "Sapienti", all the faithful may have direct recourse to the Roman Congregations, the petition is usually forwarded through the ordinary (of the person's birthplace or domicile, or since the Decree "Ne temere" the residence of one of the petitioners), who transmits it to the proper Congregation. The petition ought to give the names of the petitioners (except in secret cases forwarded to the Penitentiaria), the name of the Ordinary forwarding it, or the name of the priest to whom, in secret cases, the rescript must be sent.

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• 7. Financial Regulations And Gratuitous Nature

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  The Council of Trent (Sess. XXIV, cap. v, De ref. matrim.) decreed that dispensations should be free of all charges. Diocesan chanceries are bound to conform to this law and neither to demand nor accept anything but the modest contribution to the chancery expenses sanctioned by an Instruction approved by Innocent XI on the 8th of October 1678, and known as the Innocentian Tax (Taxa Innocentiana). Rosset holds that it is also lawful, when the diocese is poor, to demand payment of the expenses it incurs for dispensations. In the Roman Curia the expenses incurred by petitioners fall under four categories: expenses (expensae) of carriage (postage, etc.), also a fee to the accredited agent, if one has been employed; a tax (taxa) to be used in defraying the expenses incurred by the Holy See in the organized administration of dispensations; the componendum, or fine to be paid to the Congregation and applied by it to pious uses; an alms imposed on the petitioners and to be distributed by themselves in good works.