Dispensation (Catholic canon law)

[7] As of the early part of the twentieth century, 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.

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 (urgens justaque causa et major quandoque utilitas), and in all cases gratis.

As a general rule the pope delegates his powers to the various congregations of the Roman Curia, which are charged with granting dispensations in matters within the sphere of their competence.

[10] On 3 November 1908, the duties of these various Congregations received important modifications in consequence of the Apostolic Constitution "Sapienti", in which Pope Pius X reorganized the Roman Curia.

The Holy Office retained its faculties, but restricted expressly under three heads: (1) disparity of worship; (2) mixta religio; (3) the Pauline privilege.

[10] Congregatio de Propaganda Fide remained the channel for securing dispensations for all countries under its jurisdiction, but being required for the sake of executive unity, to defer, in all matters concerning matrimony, to the various Congregations competent to act thereon, its function became that of intermediary.

In America, the United States, Canada and Newfoundland, and in Europe, the British Isles were withdrawn from Propaganda, and placed under the common law of countries with a hierarchy.

The Congregation of Extraordinary Ecclesiastical Affairs lost all its powers; consequently the countries hitherto subject to it must address themselves either to the Holy Office or to the Congregatio de Disciplinâ Sacramentorum according to the nature of the impediment.

[10] The powers of any Congregation are suspended during the vacancy of the Holy See, except those of the Apostolic Penitentiary in the internal forum (in foro interno), which, during that time, are even increased.

[clarification needed] By virtue of their ordinary power (Jurisdiction) bishops can dispense from those prohibent impediments of ecclesiastical law which are not reserved to the pope.

Nevertheless, it is good to bear in mind, when interpreting them, the actual legislation of the Congregation whence they issue, so as not to extend their use beyond the places, persons, number of cases and impediments laid down in a given indult.

With regard to other priests a decree of the holy Office (14 December 1898) declared that for the future temporary faculties may be always subdelegated unless the indult expressly states the contrary.

This opinion seems yet gravely probable, though the Penitentiaria continues to grant among its habitual faculties a special authority for such cases and restricts somewhat its use.

[10] 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 supplica (petition) and private rescript.

Although, since the Constitution "Sapienti", all the faithful may have direct recourse to the Roman Congregations, the supplica 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 either by letter or through his accredited agent; but if there is question of sacramental secrecy, it is sent directly to the Penitentiaria, or handed to the bishop's agent under a sealed cover for transmission to the Penitentiaria.

The supplica ought to give the names (family and Christian) 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; the age of the parties, especially in dispensations affecting consanguinity and affinity; their religion, at least when one of them is not a Catholic; the nature, degree and number of all impediments (if recourse is had to the Congregatio de Disciplinâ Sacramentorum or to the Holy Office in a public impediment, and to the Penitentiaria at the same time in a secret one, it is necessary that the latter should know of the public impediment and that recourse has been had to the competent Congregation).

[10] Dispensation rescripts are generally drawn up in formâ commissâ mixtâ, i. e. they are entrusted to an executor who is thereby obliged to proceed to their execution, if he finds that the reasons are as alleged (si vera sint exposita).

Gasparri holds it as received practice that it suffices if the reasons alleged be actually true at the moment when the petition is presented.

The executor ought to observe with care the clauses enumerated in the decree, as some of them constitute conditions sine quâ non for the validity of the dispensation.

As a rule, these clauses affecting validity may be recognized by the conditional conjunction or adverb of exclusion with which they begin (e. g. dummodo, "provided that"; et non aliter, "not otherwise"), or by an ablative absolute.

In this matter also it is well to pay attention to the stylus curiœ, i. e. the legal diction of the Roman Congregations and Tribunals, and to consult authors of repute.

The "Formulary of the Dataria" (Rome, 1901) gave twenty-eight, which suffice, either alone or concurrently with others, and act as a norm for all sufficient causes; they are: smallness of place or places; smallness of place coupled with the fact that outside it a sufficient dowry cannot be had; lack of dowry; insufficiency of dowry for the bride; a larger dowry; an increase of dowry by one-third; cessation of family feuds; preservation of peace; conclusion of peace between princes or states; avoidance of lawsuits over an inheritance, a dowry or some important business transaction; the fact that a fiancée is an orphan or has the care of a family; the age of the fiancée over twenty-four; the difficulty of finding another partner, owing to the fewness of male acquaintance, or the difficulty the latter experience in coming to her home; the hope of safeguarding the faith of a Catholic relation; the danger of a denominationally mixed marriage; the hope of converting a non-Catholic party; the keeping of property in a family; the preservation of an illustrious or honourable family; the excellence and merits of the parties; defamation to be avoided, or scandal prevented; intercourse already having taken place between the petitioners, or rape; the danger of a civil marriage; of marriage before a Protestant minister revalidation of a marriage that was null and void; finally, all reasonable causes judged such in the opinion of the pope (e. g. the public good), or special reasonable causes actuating the petitioners and made known to the pope, i. e. motives which, owing to the social status of the petitioners, it is opportune should remain unexplained out of respect for their reputation.

To reach their exact force, some acquaintance is necessary with the stylus curiœ and the pertinent works of reputable authors, always avoiding exaggerated formalism.

Sometimes the Holy See grants ampler freedom in this matter, but nearly always with the monition that all revenues from this source shall be employed for some good work, and not go to the diocesan curia as such.

As for the alms and the componendum, besides the fact that they do not profit the pope nor the members of the curia personally, but are employed in pious uses, they are justifiable, either as a fine for the faults which, as a rule, give occasion for the dispensation, or as a check to restrain a too great frequency of petitions often based on frivolous grounds.

[10] Dispensation is the canonical equivalent of license[11] which, according to Black's Law Dictionary, is the authorisation to do something which would normally be illegal if the competent authority had not granted permission.