Article VIII: Crime

140. • I. Notion.

a) It is a diriment impediment of matrimony to be contracted between persons who have committed qualified adultery or qualified conjugicide.

b) Under a threefold form the impediment of crime can be found:

1. adultery with a promise or attempted matrimony.

2. adultery with conjugicide perpetrated by only one of the adulterers.

3. conjugicide alone, but perpetrated by common counsel.

141. • II. First form.

a) "They cannot validly contract matrimony:

1° Who, while the same legitimate matrimony endures, have consummated adultery between themselves, and have mutually given faith to each other concerning matrimony to be entered, or have attempted matrimony itself, even by a civil act." (Can. 1075.)

b) Conditions that crime under the first form exist as an impediment.

1. On the part of adultery.

It is necessary that the adultery be: true, i.e., that at least one accomplice be validly bound by matrimony; formal on the part of each, i.e., that each know at least one, and indeed the same, party to be married. Therefore if each party is married, but neither knows the accomplice to be married, the impediment is not present; consummated, i.e., that the man enter the vaginal canal of the woman and pour forth true semen in it.

Copula is presumed perfect in both forums.

2. On the part of the promise.

It is necessary that the promise of matrimony be: true and serious, i.e., a simple purpose or a feigned or joking promise does not suffice. According to the more common and more probable opinion, and one safe in practice, any fiction, even merely internal, prevents the impediment from being present. For an invalidating law is of strict interpretation (Can. 19), and in a doubt of law the impediment is practically null (Can. 15); free, i.e., not extorted by grave fear or deceit, nor vitiated by substantial error; absolute, i.e., not made under a condition; concerning matrimony to be entered after the death of the spouse, although it is not necessary that this be added expressly to the promise; injurious to the existing matrimony: such would not be a promise made at the insistence of a dying spouse; joined with adultery in the same matrimony: the impediment is not present if before the adultery the promise was sincerely and externally revoked; externally manifested and mutually accepted.

3. On the part of the attempted matrimony.

Attempted matrimony is the act by which two persons, conscious of the existing impediment of bond, truly and seriously give conjugal consent to each other, although invalidly.

It matters little in what manner that attempt is made.

142. • III. Second form.

a) "They cannot validly contract matrimony:

2° Who, while the same legitimate matrimony endures, have consummated adultery between themselves, and one of them has perpetrated conjugicide." (Can. 1075.)

b) Conditions necessary that the impediment really exist.

1. On the part of adultery: the same conditions as above for the first form, n. 141 b) 1.

2. On the part of conjugicide.

It is necessary that the death of the spouse be plotted by one or the other of the adulterers, and indeed from the intention of contracting matrimony with the accomplice of adultery; that it actually follow, at least probably; therefore in practice it is required that the adultery precede the act which is the cause of death; the spouse to whom death is brought must be the same one who was living at the time the adultery was committed.

For the canon says: "while the same legitimate matrimony endures."

143. • IV. Third form.

a) "They cannot validly contract matrimony:

3° Who by mutual physical or moral work, even without adultery, have brought death to a spouse." (Can. 1075.)

b) Conditions required for incurring the impediment.

1. The killing of a true spouse.

2. Death following from the true and mutual cooperation of both accomplices.

3. Intention of entering matrimony with the accomplice.

In practice this intention is required in both accomplices. Certainly, on this point authors disagree theoretically. But from this the impediment becomes doubtful by a doubt of law if the intention of matrimony is not found in each party, and therefore null.

For the same reason it is necessary in practice that such intention be manifested in some way to the other accomplice.

In the external forum this intention is presumed.

144. • V. Reason for the impediment.

The intention of the Church in establishing that impediment was both to provide for conjugal fidelity and the safety of spouses, and to inflict punishment on account of the most grave crime committed.

145. • VI. Multiplication of the impediment.

The impediment of crime is multiplied:

a) if by delicts diverse in species injury is brought upon one and the same matrimony.

If adulterers promise each other matrimony, then attempt it while the spouse is living, and finally at least one of the spouses kills, a threefold impediment is present.

b) If injury is brought upon several matrimonies.

For if both are married, provided that each knows it, a twofold impediment is present from adultery with a promise or attempted matrimony. Or also, if Peter successively takes Paula and Cecilia in matrimony, and during each matrimony commits adultery with Margaret with a promise or attempted matrimony, a twofold impediment is contracted by the accomplices.

146. • VII. Quality of the impediment.

a) It is of merely ecclesiastical law.

b) Therefore it directly affects only the baptized, except in the case in which civil law establishes a similar impediment.

c) Nevertheless indirectly, namely by reason of the faithful party, an unbeliever can be liable to this impediment. This obtains when the faithful party fulfills all the conditions necessary so that he himself contracts the impediment. For then the faithful party communicates his own inability to the unbeliever. But if the unbeliever alone acts in an essential element of the crime, the impediment is not present.

147. • VIII. Dispensation.

This impediment is removed by dispensation alone.

a) If there is question of public conjugicide, never; if of occult conjugicide, sometimes dispensation is granted from a most grave cause.

b) Dispensation is easier in the first form of the impediment, which moreover is held in law as a minor impediment. (Can. 1042, § 2, 5°.)

c) In a dispensation upon a ratified and non-consummated matrimony, and in permission given by the Supreme Pontiff, but not by the Ordinary, of passing to other nuptials on account of the presumed death of the spouse, there is implicitly contained dispensation upon this impediment in its first form. (Can. 1053.)

d) Pius X, on 3 June 1912, through a Decree of the Sacred Congregation of the Sacraments, revalidated and sanated all matrimonies celebrated up to that day and invalid on account of adultery with attempted matrimony.¹

¹ Acta Apostolicae Sedis, 1912, p. 403.