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Objection 1: It would seem that a marriage contracted by persons
within the degrees of affinity or consanguinity ought not always to be
annulled by divorce. For "what God hath joined together let no man
put asunder" (Mt. 19:6). Since then it is understood that
what the Church does God does, and since the Church sometimes
through ignorance joins such persons together, it would seem that if
subsequently this came to knowledge they ought not to be separated.
Objection 2: Further, the tie of marriage is less onerous than the
tie of ownership. Now after a long time a man may acquire by
prescription the ownership of a thing of which he was not the owner.
Therefore by length of time a marriage becomes good in law, although
it was not so before.
Objection 3: Further, of like things we judge alike. Now if a
marriage ought to be annulled on account of consanguinity, in the case
when two brothers marry two sisters, if one be separated on account of
consanguinity, the other ought to be separated for the same reason.
and yet this is not seemly. Therefore a marriage ought not to be
annulled on account of affinity or consanguinity.
On the contrary, Consanguinity and affinity forbid the contracting of
a marriage and void the contract. Therefore if affinity or
consanguinity be proved, the parties should be separated even though
they have actually contracted marriage.
I answer that, Since all copulation apart from lawful marriage is a
mortal sin, which the Church uses all her endeavors to prevent, it
belongs to her to separate those between whom there cannot be valid
marriage, especially those related by blood or by affinity, who cannot
without incest be united in the flesh.
Reply to Objection 1: Although the Church is upheld by God's
gift and authority, yet in so far as she is an assembly of men there
results in her acts something of human frailty which is not Divine.
Therefore a union effected in the presence of the Church who is
ignorant of an impediment is not indissoluble by Divine authority, but
is brought about contrary to Divine authority through man's error,
which being an error of fact excuses from sin, as long as it remains.
Hence when the impediment comes to the knowledge of the Church, she
ought to sever the aforesaid union.
Reply to Objection 2: That which cannot be done without sin is not
ratified by any prescription, for as Innocent III says (Conc.
Later. iv, can. 50: cap. Non debent, De consang. et
affinit.), "length of time does not diminish sin but increases
it": nor can it in any way legitimize a marriage which could not take
place between unlawful persons.
Reply to Objection 3: In contentious suits between two persons the
verdict does not prejudice a third party, wherefore although the one
brother's marriage with the one sister is annulled on account of
consanguinity, the Church does not therefore annul the other marriage
against which no action is taken. Yet in the tribunal of the
conscience the other brother ought not on this account always to be
bound to put away his wife, because such accusations frequently proceed
from ill-will, and are proved by false witnesses. Hence he is not
bound to form his conscience on what has been done about the other
marriage: but seemingly one ought to draw a distinction, because
either he has certain knowledge of the impediment of his marriage, or
he has an opinion about it, or he has neither. In the first case, he
can neither seek nor pay the debt, in the second, he must pay, but
not ask, in the third he can both pay and ask.
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