Case III: Impediment of a Prior Bond

Bertha, a foreigner, unable to speak English, came to this country at the age of sixteen years. She was without money, relatives or friends, and was on account of her helplessness impelled to a marriage with a worthless, drunken sot, a waiter in a restaurant. In less than a year Bertha was deserted by this man, who left her a physical wreck. In two years’ time she was fully cured and was proposed to by Cajus, a Catholic young man. She told Cajus of her former marriage and they spent a year in tracing the “whereabouts” of the first husband, but could find no trace of him whatsoever. Unsuccessful in their search, they concluded to get married, and have been living together ever since, i. e. about fifteen years. They now have a family of several children. They are respected by the community in which they live, are looked upon as good Catholics, and bringing up all their children in the faith. They feel that they can not separate, if for no other reason, for the children’s sake, and would like to have their case straightened out, if possible. During these years they have looked for some trace of the first husband with as much diligence as their circumstances would admit of, but have found absolutely no trace of him. He was a reckless dissipated roué fifteen years ago and they think he must be dead.

Answer. This is a difficult case. On the one hand there is a question of a diriment impediment, which can not be removed by any ecclesiastical dispensation, and on the other hand there is question of breaking up a family and stigmatizing the children, or of compelling the parents to live a continent life, which as Lacroix says, “it is exceedingly harsh to compel persons free from fault to lead a celibate life; yet they would be compelled to this if they could not make use of Marriage.” In the first place, there can be no question, practically speaking, of a separation. The children are young and require the care of both parents. The scandal and sensation that would necessarily follow a separation, would rule the very thought of it out of court. The only alternatives left for the confessor to consider are, whether the parties should be compelled “ut vitam coelibem ducant,” or is such a construction of the divine and ecclesiastical law possible that the parties “uti possint Matrimonio.”

There can be no question of the truth of what Lacroix says, “it is exceedingly harsh to compel persons free from fault to lead a celibate life.”

If Bertha and Cajus are at the present moment, in bona fide, or even in dubia fide, about the perfect legitimacy of their marital relations, then for the good of all concerned, their good faith— bona fides—must not be disturbed, and if they are in dubia fide, i. e., they do not know whether they are lawfully married in the eyes of God and the Church, it may be possible to change this fides dubia into fides bona et certa, that is to put their consciences at rest about their marriage, in which case prudence and discretion would dictate that this would be the line of conduct to be pursued.

The question for us to decide therefore is: Were Bertha and Cajus in good faith, when they got married? Did they believe honestly and sincerely that they had sufficient proof of the death of the first husband, to justify them in marrying? Or were they in dubia fide? That is, did they fear that notwithstanding their investigations, the first husband might nevertheless be alive, and the marriage they were then contracting might be invalid? And if they were in dubia fide, fifteen years ago, when they contracted the present marriage, are they necessarily now, and without further inquiry, still in dubia fide? Or may they not be in good faith now (i. e., judging honestly that the Church does not require any other proof of the death of the first husband than his complete disappearance for eighteen years, considering his character, and physical condition) even if they were in dubia fide when the marriage was contracted? There is no doubt but that Bertha and Cajus entered into the marriage contract before the death of the first husband was fully established. They did all that was in their power, considering their circumstances, to discover and establish the fact of the first husband’s death, but still the fact of his death remained uncertain. Now the question is, can they ever be said to have entered into the second marriage in good faith and may we proceed to judge their marriage according to the rules which presuppose them to have been in good faith when they contracted the second marriage? We are fully aware that some theologians deny the possibility of good faith under the circumstances. But other theologians, v. g. Lacroix, Lehmkuhl, etc., hold that it is not altogether impossible that in a given case, the second marriage may have been contracted in good faith, and the parties to it may be left undisturbed. Lacroix treats this case at considerable length in the VIth book of his treatise on marriage, p. iii. He says in effect, that Bertha may judge in good faith, upon probable arguments only, that her first husband is dead, and she may not know that any greater certainty is required on this point. Wherefore she may be said to have contracted in good faith, if she innocently thought that she could lawfully marry again, while there existed doubt about the death of her first husband, considering the circumstances of her case, although she might know in a general way, that it was not allowed to marry again during the lifetime of her first husband. On the contrary, continues Lacroix, if she entered into the second marriage, fearing that she might be sinning, she acted in bad faith. To this Lehmkuhl adds, that the fear or remorse which agitated Bertha, while contracting the second marriage, lest she might be committing sin, may have arisen from other causes, v. g. because she married outside the Church, without publication of the banns, etc., and the fact that she feared lest she might be sinning in contracting the second marriage, is not of itself conclusive proof of bad faith on account of a former marriage tie. The cause of such fear and remorse would have to be examined into, in order to discover whether it was evidence of bad faith or not.

In the present case, Bertha may have contracted the second marriage in dubia fide. That is she may have been in doubt as to whether she had sufficiently investigated the death of her first husband, according to the requirements of the Church. Three years had elapsed between the disappearance of her first husband and her second marriage. She may have doubted at the time whether there was a sufficient interval to justify her in taking for granted that her husband was dead, notwithstanding her fruitless efforts to trace him. But now it is eighteen years since he disappeared, and considering his character and physical condition at the time, she may very easily believe now that he is dead, although she did not believe it so firmly fifteen years ago, when she contracted the second marriage. She may therefore believe now bona fide, that any impediment ligaminis has long since been removed by death and that nothing prevents her being united now in lawful wedlock to Cajus.

The lapse of time has intervened to turn what was a fides dubia fifteen years ago, into a fides bona now. We do not say that this is so in the case of Bertha, because all we know about her is what is stated in the case as given above. But we judge that what we say will fit her case. And the circumstances of her case being what they are, we think, salvo meliori judicio, she might be permitted to renew her consent, which would confirm her good faith, and be left in peace. Note also the following decision:

The Holy Office was asked, March 22, 1865, whether a woman, who had waited in vain for the return of her husband, and who, judging after three years that he was dead, had married again in good faith, could be allowed to continue in the second union, until it be established beyond doubt that the first husband was living? The Holy Office answered:

“Leave them in good faith.”

“A woman, after she had waited in vain for her husband’s return, judging after three years that he was now dead, joined herself in good faith in marriage to another man; and since it is now impossible to investigate whether the first husband is still living or is in fact dead, it is asked whether she can be left in the use of the second marriage contracted until certainty is obtained concerning the life of the first husband?”

Resp. “They are to be left in good faith.”