Case XV: Impediment of Crime

Titius and Bertha, both Catholics, were validly married and lived together for some years. Then Bertha divorced Titius and contracted a civil marriage with Sempronius, a non-Catholic. Sometime after this Titius, the Catholic husband, died. Now Bertha desires to have her marriage to Sempronius, the non-Catholic, sanctioned by the Church. What is necessary to have this done?

Answer.—The principal bar to the marriage of Bertha with Sempronius is the diriment impediment of crime. The Church has made or decreed that certain crimes shall act as a nullifying impediment to the subsequent marriage of those who commit them. These crimes are:

1. Murder of a married person, when the wife or husband has brought it about by conspiring with another man or woman;

2. Adultery by husband or wife with a third person, accompanied by a promise to marry that person after the death of the other spouse;

3. Murder and adultery together, as when a man and a woman commit adultery and one of them murders his consort in order to marry his accomplice in adultery.

The reason of this law of the Church is to remove, as far as possible, the motive of such crimes. The Church wishes to punish those who inflict this injury on the innocent husband or wife, by making it impossible for them to marry one another. The Church thus protects the innocent consort by destroying the hope of future marriage of a guilty husband or wife with a third person, which hope might impel them to commit murder or adultery. This law is older even than the Catholic Church, for it goes back to the time of the Romans. The "lex Julia" forbade the marriage of adulterers, even though the first marriage were subsequently dissolved, and even though there had been no promise of a future marriage between the adulterers, and no murder had been committed with marriage in view.

The early Church took over this legislation of the Romans and Pope St. Leo decreed: "Nullus ducat in matrimonium, quam prius polluit adulterio" and these words of St. Leo have become the rubric or title of the decrees or the canons against the marriage of adulterers or murderers, as contained in the corpus juris canonici.

At first there was a general prohibition, nullifying future marriages of adulterers or murderers conspiring in the death of husband or wife. Gradually, however, certain restrictions of this general prohibition were introduced into the legislation of the Church. It became necessary that a promise of marriage should accompany the adultery and conspiracy should characterize the murder, unless both adultery and murder were involved in the same case. This impediment is one of the oldest, therefore, of all the diriment impediments to marriage created by the Church. And the reasons that first impelled the Church to make these crimes a diriment impediment to marriage are still so powerful in the world to induce the Church to continue them in her legislation concerning the Sacrament of Matrimony.

The crime of adultery, in order that it act as a diriment impediment to the marriage of the persons guilty of it, must be coupled with a promise of marriage.

"Although it is contained in the canons that no one should join in marriage a woman whom he had previously defiled by adultery, and especially one to whom he had pledged his faith while his wife was living, or one who plotted the death of his wife." (Alexander III., cap. Laudabilem i, de convers. infid.)

Adultery alone, or a promise of marriage alone, does not constitute the impediment; the adultery must be coupled with the promise of marriage before the death of the innocent consort. It is immaterial whether the promise of marriage precede or follow the act of adultery. The act of adultery, of which there is question here, is adultery in the eyes of the Church; that is, at least one of the persons guilty of it must be at the time united in valid wedlock in the eyes of the Church. If the marriage be only valid in the eyes of the civil law, but invalid according to the Canon Law, no impediment arises, because there is no adultery, but only fornication. Both parties committing adultery must be cognizant of the adulterous nature of the act. In other words, it is necessary that the adultery be formal on both sides. If one of the guilty parties is ignorant that the other one is a married person, then there is no formal adultery on that person's part, and therefore no impediment to their future marriage after the death of husband or wife. It must be noted, in regard to the promise of marriage that is required to create a diriment impediment, that the promise to marry after the death of the innocent consort is the only marriage promise contemplated in the law. If one of the guilty parties promised the other to marry them as soon as they would obtain a civil divorce, no impediment arises, because there is no promise to marry post mortem conjugis. cf. Schmalzgruber, IV, 7, n. 9.

If, instead of promising to marry, the parties guilty of the adultery actually get married, either before a civil magistrate or a non-Catholic minister of worship, then the matrimonium attentatum, coupled with a previous or subsequent cohabitation, creates the diriment impediment. This has always been the law. It is immaterial whether the civil marriage precede the adultery or is subsequent to it. The Congr. de Prop. Fide, Jan. 14th, 1844, decreed:

"But to contract or attempt marriage in the present is to enter upon nuptials, certainly invalidly, by words of present consent or by some other sign that includes a promise of consent; it makes no difference, however, whether the adultery preceded the attempted marriage or followed it. For the taking of a concubine—or rather, an adulteress—to be regarded in a case as a true attempted marriage, it is necessary that it include a promise of marriage, whether in the present or in the future"

It is necessary, however, that both the civil marriage and the cohabitation or adultery should take place before the death of the innocent consort, ante mortem alterius conjugis. If two persons, one or both of whom are already validly married to other persons, attempt to get married civilly and, failing in the attempt, give up the idea of marriage and afterwards commit adultery, there will beno diriment impediment on this score to their future marriage. It is required that both parties to the second marriage have knowledge of the previous marriage. It may be that at the time of the second marriage the woman to it did not know that the man she was marrying had a wife living, although divorced. In that case, if she continues the relation after learning of the divorced wife, she contracts the impediment and may not marry validly the man with whom she is living, even after the divorced wife's death.

It follows, therefore, that all those persons, who having been validly married, afterwards obtain a civil divorce and enter into new -marriage arrangements, are barred from ever contracting a valid marriage between them on account of the diriment impediment criminis adulterii. It is hardly necessary to add that one or both parties to the adultery must be validly baptized, otherwise no impediment is incurred, as the impediment of crime is of ecclesiastical origin. It suffices that one of the parties be baptized, for the baptized person communicates his inability to marry to the unbaptized person, propter unitatem contractus.

Bertha and Sempronius cannot be married in the Church, unless a dispensation from the diriment impediment of the crime of adultery be first procured. If the civil marriage contracted by Bertha and Sempronius was before a non-Catholic minister, Bertha is excommunicate and requires a second dispensation. The same holds good if the civil marriage was contracted before a justice of the peace. Thirdly, if Sempronius was never validly baptized, a dispensation super impedimento disparitatis cultus is necessary; otherwise a dispensation from mixed religion will be necessary to make the marriage licit.