Dist. 42, Art. 2, Q. 2
by St. Bonaventure
Source text: Public Domain Mark 1.0. English translation/apparatus/encoding: CC BY-NC 4.0, Wroot Press.
https://bonaventure.wrootpress.com/browse/4/d/42/q/bon-sent-IV-d42-a2-q2
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### Question II. *Whether legal kinship ought to impede marriage.*

Secondly it is asked whether legal kinship ought to impede marriage. And that it ought, it seems.

1. In Cause thirty, question three, [the canon] *Ita diligere*, Pope Nicholas says — and it is contained in the [Master's] text: «Between those whom adoption joins, marriage is not contracted».

2. Likewise, it seems [so] by *reason*: because paternal and marital affection is, and ought to be, distinct: if therefore one adopting some woman is bound to treat her with paternal affection, then in no way can he, nor ought he, [treat her] with a husband's affection.

3. Likewise, the bond of kinship impedes on account of

nearness; but in legal kinship nearness is produced: therefore it becomes an impediment to marriage.

**Contra:**
1. Legal kinship is of positive law, but marriage is of natural law; but those things which are of positive law cannot [prevail] over those which are of natural binding: therefore neither can such adoption impede marriage.

2. Likewise, marriages are governed by the law of heaven [*ius poli*], not by the law of the court [*ius fori*]; but such adoptions are of the law of the court: therefore marriage cannot be impeded through such adoptions.

3. Likewise, such legal kinship is repugnant to no good of marriage; but everything that furnishes an impediment to marriage furnishes an impediment by reason of some good: therefore etc.

### Conclusio

> Legal kinship impedes marriage.

**Respondeo:** It must be said that legal kinship impedes marriage. And the reason for this is the statute of the Church, which confirms and approves the law.

But if it is asked: why did the Church establish [this]? it can be said [that it is] by reason of honesty: because these affections, namely the paternal and the marital, are incompossible in regard to the same person, honesty being preserved; and because such kinship leads to the affection of consanguinity, if anyone were to contract [marriage], he would in this very act derogate from honesty; and one who grew accustomed to contracting with an adoptive daughter would fear little or nothing to contract with a natural one, since he had taken her up to be treated as a natural daughter. And thus it is clear why it ought to impede.

But in what manner it impedes according to three differences — such that according to one [of them only] for a time — has been said above. — And the reason for this is: because that adoption holds by reason of the fact that the natural daughter and the adoptive son are under the *same power*, nor do they stand to one another as brother and sister except so long as they are so; and therefore, this ceasing, they can behave toward one another according to conjugal affection. — These things having been seen, the objections are sufficiently clear.

**To the arguments:**

*Ad 1.* As for what is objected, that positive law is not repugnant to natural law; it must be said that marriage is not only of natural law, according to which the Church now proceeds, but also must be governed according to ecclesiastical statutes.

*Ad 2.* To that which is objected, that it is governed by the law of heaven; the response is now clear: because the Church, by its constitution and approbation, made such an impediment to be valid; otherwise it could not impede.

*Ad 3.* To that which is objected, that it does not impede any good of marriage; it must be said that, as was said above concerning carnal kinship, the good of natural honesty is impeded, for the preserving of which marriage was principally instituted.

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