Forty First Distinction

Single Question. Whether Affinity Impedes Matrimony

1. “Now about affinity” [Lombard, Sent. IV d.41 ch.1 n.1].

2. The forty first distinction. About this forty first distinction I ask whether affinity impede matrimony.

3. That it does not.

An effect is not repugnant to its cause; but affinity is an effect of matrimony, therefore it is not repugnant to matrimony.

4. Again, then incest with a sister of one’s wife would impede conjugal union with one’s own wife, because by that incest one attains affinity with one’s wife; the consequent is false, as is contained in Gregory IX, Decretals IV tit.14 ch.8.

5. Or as follows: affinity would impede if it then dissolved a contracted matrimony, as it does impede contracting one; but this is false, for someone who commits incest in knowing his wife’s sister is not to be separated from his wife;     therefore etc   .

6. To the opposite:

Gratian, Decretum, p.2 cause 35 q.2 and 3, ch.3, ‘On close relatives’.

I. To the Question

A. On Notion, Degrees, and Lines of Affinity

7. Here the idea of affinity can be set down as this: a certain tie [bond] between person and person contracted from carnal union with a person consanguineous with a second. For it is always the case that, because a person carnally united is consanguineous with someone, then she, with whom he is carnally united, is made affinal with that someone and conversely. And there is as it were an exposition of the word ‘affinal’, that it is an ‘accession to the confines of’; for he who is joined carnally with someone of a certain consanguinity accedes, by this, to the confines of that consanguinity, and therefore he has a tie of access to everyone of that consanguinity.

8. To this tie degrees and lines can be assigned (as before in the case of consanguinity [n.d.40 nn.9-13]), and for all these there is one brief rule: by whatever degree of consanguinity someone is distant from someone else, by that whole degree of affinity is she, who is carnally known by the former, distant from the same person. I do not say ‘wife’, because this is not required; for not only [by carnal union] with a wife but with a concubine or prostitute is affinity with those consanguineous with that very man contracted (indeed [contracted] in incest [too]).

9. Nor is it sufficient for affinity properly speaking that she be wife, but carnal mingling is required, as is said in Gratian, Decretum, p.2 cause 35 q.10 ch.1, “Of fraternity,” where it is said about spouses that “if they have been one flesh, it cannot be that someone is closely related to one of them without this pertaining to the other of them;” wherein is understood that affinity is not contracted save by means of carnal mingling.

10. However, by extending affinity, it is said that it is contracted not only with a wife known carnally but also with a wife not known, where (supply) there is a matrimony but not a consummated one and, what is more, with her with whom betrothals precisely are contracted.

11. And here is to be noted that this tie, contracted with someone because of her union with someone consanguineous (and this either through matrimonial union or consent of betrothals), is commonly called the justice of public honorableness.

12. And this affinity is closeness of relationship arising from betrothals, getting its strength from institution of the Church, because of public honorableness. And about this impediment there is a rule that no one consanguineous with a husband can marry or have his wife, nor can someone consanguineous with his wife have him as husband.

B. Solution of the Question

13. To the question, then, I say that affinity simply impedes matrimony.

14. And the reason is only the statute of the Church delegitimizing the affinal, and it impedes in the same degree in which there is consanguinity; and this point indeed about affinity properly speaking is plain in Gregory IX, Decretals IV tit.14 ch.8, ‘On consanguinity and affinity’.

15. Likewise about affinity commonly and extensively speaking, which is called the justice of public honorableness [Gloss on Decretals, Thomas Aquinas, Richard of Middleton ad loc.]: Gregory IX, ibid., ch.1, “Equally, as the canons say, must one abstain from those consanguineous and proper to the wife.” About this justice of public honorableness are many things found also in Gregory IX, ibid., chs.1-9 or Boniface VIII Decretals Book Six IV tit.1 ch.1, that from espousals which are null by the law itself (or in whatever way), while they are not null by defect of consent, this impediment to matrimony arises; and it impedes contracting matrimony and destroys one already contracted.

II. To the Initial Arguments

16. To the first argument [n.3] I say that affinity is the effect of a certain preceding matrimony, and therefore it does not impede that matrimony; but it does impede another one between those between whom affinity has through matrimony been contracted.

17. To the second [n.4, and effectively the third, n.5] I say that affinity contracted through carnal union with a sister before matrimony would simply impede matrimony for the future; but, after matrimony has been contracted, the supervening affinity does not destroy it, because this would be to the injury and the prejudice of the wife, who did not demerit anything. And the reason is that many things impede what should be done that do not destroy that which has already been done. However, an incestuous man is deprived of the right of asking [sc. for the marriage debt] because of that crime; and after the death of his wife let him remain without a wife, as is said in the same place [Gregory IX, Decretals IV tit.14 ch.8]; for an incestuous man cannot contract after the death of his wife without mortal sin. But if he do contract, it is done and it is valid by the law of matrimony.