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.
Concept 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.The Law of Christ Vol. I, pg. 285Canon 93, 1983 Code of Canon Law, accessed June-5-2013NewAdvent.org "Dispensation", accessed June-5-2013 If the immediate basis for the right is withdrawn, then the right ceases.
Validity, legality, "just and reasonable cause" There must be a "just and reasonable cause"Canon 90 §1, 1983 Code of Canon Law; accessed June-5-2013 for granting a dispensation. What is "just and reasonable" is based upon the particular situation and the importance of the law to be dispensed from. If the cause is not "just and reasonable", then the dispensation is illegal and, if issued by someone other than the lawgiver of the law in question, or his superior, the dispensation is also invalid. If it is uncertain whether a sufficiently "just and reasonable cause" exists, the dispensation is both legal and valid.Canon 90 §2, 1983 Code of Canon Law; accessed June-5-2013
History
Contemporary use 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.). The power to dispense lies with the original lawgiver, with his successors or with his superiors, and with those to whom the right has been delegated. Since there is no superior above the pope, he can dispense from all canonical laws: universal laws introduced by himself, his predecessors or general councils, and particular laws enacted by plenary and provincial councils, bishops and similar prelates. 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."What is Canon Law?" pg. 47
Papal dispensation
Papal dispensation is a reserved right of the pope that allows for individuals to be exempted from a specific Canon law. 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.
Matrimonial dispensation
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.
General powers of dispensation Pope and the curia 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. In respect of impediments arising from ecclesiastical law, the pope has full dispensing power. Every such dispensation granted is valid, and when the pope acts with a sufficient motive, it is also licit.
The pope may not exercise this power personally, unless in very exceptional cases, where certain specific impediments are in question. These are error, violence, holy orders, disparity of worship, public conjugicide, consanguinity in the direct line or in the first degree (equal) of the collateral Line and the first degree of affinity (from lawful intercourse) in the direct line. As a rule, the pope exercises his power of dispensation through the Roman Congregations and Tribunals.
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. The dispensing power in the internal forum lay with the Penitentiaria, and in the case of poor and quasi-poor people had dispensing power over public impediments in the external forum as well. The Penitentiaria held as poor, for all countries outside of Italy, those whose united capital, productive of a fixed revenue, did not exceed 5370 lire (about 1050 dollars); and as quasi-poor, those whose capital did not exceed 9396 lire (about 1850 dollars). It likewise had the power of promulgating general indults affecting public impediments, as for instance the indult of 15 November 1907. The Congregation for the Evangelization of Peoples was charged with all dispensations, in both forums, for countries under its jurisdiction, as was the Congregation of Extraordinary Ecclesiastical Affairs for all countries depending on it, e. g. Russia, Latin America and certain apostolic vicariates and apostolic prefectures.
On 3 November 1908, the duties of these various Congregations received important modifications as a consequence of the apostolic constitution "Sapienti", in which Pope Pius X reorganized the Roman Curia. Dispensing power from public impediments in the case of poor and quasi-poor people was transferred from the Dataria and the Penitentiaria to the newly established Congregatio de Disciplinâ Sacramentorum, the Penitentiaria retaining dispensing power over occult impediments in the internal forum only. The Holy Office retained its faculties, but restricted expressly to three general cases: disparity of worship, , and the Pauline privilege.
The Congregation for the Evangelization of Peoples remained the channel for securing dispensations for all countries under its jurisdiction, but as it was required for the sake of executive unity, to defer, in all matters concerning matrimony, to the various Congregations competent to act, its function became that of intermediary. In America, the United States, Canada and Newfoundland, and in Europe, the British Isles were withdrawn from the Congregation, and placed under the common law of countries with a hierarchy. The Congregation of Extraordinary Ecclesiastical Affairs lost all its powers; consequently the countries that were 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.
The powers of any Congregation are suspended during the vacancy of the Holy See, except those of the Apostolic Penitentiary in the internal forum, which during that time are even increased. Though suspended, the powers of a Congregation may be used in cases of urgent necessity.
Diocesan bishops 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. The bishop may also dispense from diriment impediments in two different ways. Either by tacit consent of the Holy See a bishop can dispense in the internal forum from secret impediments where the pope is used to exercise his power of dispensing, in three cases:
Marriages already contracted and consummated, when urgent necessity arises (i. e. when the interested parties cannot be separated without scandal or endangering their souls, and there is no time to have recourse to the Holy See or to its delegate)—it is, however, necessary that such marriage shall have taken place in lawful form before the Church, and that one of the contracting parties at least shall have been ignorant of the impediment; In marriages about to be contracted and which are called embarrassing () cases, i. e. where everything being ready a delay would be defamatory or would cause scandal; When there is a serious doubt of fact as to the existence of an impediment; in this case the dispensation seems to hold good, even though in course of time the impediment may become certain, and even public. In cases where the law is doubtful no dispensation is necessary; but the bishop may, if he thinks proper, declare authentically the existence and sufficiency of such doubt. By virtue of a decree of the Congregation of the Inquisition or Holy Office (20 February 1888) diocesan bishops and other ordinaries (especially a Vicar Apostolic, administrator Apostolic and Prefect Apostolic, with jurisdiction over a territory, as well as a vicar-general and a vicar capitular) 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. However, 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. They may also legitimize the children of such unions, except those born of adultery or sacrilege. The decree of 1888 included the impediment of clandestinity. This decree permits, at least until the Holy See has issued other instructions, to dispense, in the case of concubinage or civil marriage, with the presence of the priest and of the two witnesses required by the Decree "Ne temere" in urgent cases of marriage . Canonists do not agree as to whether bishops hold these faculties by virtue of their ordinary power or by general delegation of the law.
Besides the fixed perpetual faculties, bishops also receive from the Holy See habitual temporary indults for a certain period of time or for a limited number of cases. These faculties are granted by fixed "formulæ", in which the Holy See from time to time, or as occasion requires it, makes some slight modifications. Faculties delegated to a bishop in this way do not restrict his ordinary faculties, nor do the faculties issued by one Congregation affect those granted by another. When several specifically different impediments occur in the same case, and one of them exceeds the bishop's powers, he may not dispense from any of them.