Question III: Concerning Adultery, Which Is Opposed to the Good of Marriage

I. Notions. - The sin which is opposed to the good of marriage, as regards the person of the spouse joined by marriage, is called adultery, which is prohibited by the sixth precept of the Decalogue and is defined as the violation of another's bed, and consists in carnal union with another's spouse.

Besides the malice of fornication, by which someone approaches one not his own and therefore offends against chastity, this sin imports the malice of injustice, and indeed:

1. injury inflicted on the other spouse, from the fact that someone approaches another's wife;

2. furthermore, temporal damage, in the case in which offspring also should be born from adultery, namely on account of the expenses which come to the husband from the birth, nourishment, and education of another's offspring, or also on account of the inheritance of the father handed over to this offspring, by which legitimate children or other heirs are unjustly deprived;

3. but if the adulterer by force, grave fear, or deceit led the wife to carnal union, the sin is increased because an unjust manner was employed.

Hence from adultery there usually arises an obligation of reparation, which, since it more often presents a difficult case, it seems opportune to add a few things about that argument.

II. Principles. - Three things are to be attended to in the present matter:

1. The adulterer who by force, grave fear, deceit, or another unjust means led the wife to carnal union is bound from justice, he alone, to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole truly efficacious and formally unjust cause of these.

2. The adulterer who did not use an unjust means, but obtained consent from the wife wholly freely, is bound from justice in solidum with the wife to repair the damages inflicted on the husband and children, because both together are the unjust, efficacious, and culpable cause of them.

3. Several adulterers who, from carnal union had at a time apt for conception, can be the father of offspring certainly adulterine, are bound to reparation in proportion to the doubt, at least if they acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father, which already is a damage certainly inflicted and to be repaired; otherwise it is uncertain whether they are bound to restore, since rather the mother is the cause why the father cannot be established.

III. The manner of restitution is altogether to be attended to, since in practice it is often difficult because of the danger of suspicion by which the peace of the family would be disturbed. Wherefore:

1. The male adulterer can restore by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to prudent estimation.

2. The adulterous mother can restore: a) from her own goods if she has those of which she can dispose without prejudice to the husband; b) from the profit which she makes from her own labor, or by exercising a business or art; c) by diminishing customary expenses, by caring for the family property more diligently, and by living more sparingly insofar as can be done according to her condition, to which, if another manner is lacking, she is also bound; d) by applying to the adulterine offspring the alms which according to her state she can give, or by asking from the husband an alms for a poor relative; e) by secretly taking, as much as she safely can, from the goods which are to come to the adulterine child or have already come to him, and by compensating the legitimate children with them; f) or also by prudently giving counsel to the illegitimate child concerning religious life.

3. If it is possible for the adulterine offspring to be educated in a hospice or foundling house without suspicions arising, care must be taken that it happen thus, since in this way the expenses of education are greatly limited and division of the inheritance is avoided. Nor generally is there an obligation of restoring to the hospice, unless in the case in which it is sustained only by public expenses of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Restitution for damage already following is to be made as soon as possible. For damage not yet inflicted but to be inflicted it suffices that the guilty party so arrange matters that he restore at the opportune time, unless nevertheless he is near death; in which case he is bound immediately to restore, by himself or through another, according to the proportion of probability of the life of the adulterine child, attention being given to his age and strength, and according to the proportion of damage to be inflicted on others.

Thus also he could commit it to the confessor, or to another trustworthy man, that he restore the whole damage from goods to be handed over to him, yet in such a way that, if the adulterine offspring dies before the putative father, he would dispose otherwise of the goods received, as the adulterer had determined.

IV. Observations. - 1. There is no obligation of restoring: a) for the injury inflicted on the husband through adultery, if he has suffered no moral detriment from it, as in the case of secret adultery, or if he does not care for reparation; b) for temporal damage, if none has followed, as if offspring has not been born, or, having been born, by his own labor has compensated the expenses of his education; c) if the husband consented in the adultery; unless nevertheless to necessary heirs, in the case in which on account of adulterine offspring born they would be frustrated of part of the legitimate inheritance.

2. Detriments which come from adultery merely per accidens are not to be restored, from the fact that other relatives or friends give or leave certain things to the adulterine child which otherwise would have come to the legitimate children.

3. Nor is there to be restitution in the case in which the offspring born is doubtfully adulterine; for in doubt offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom marriage indicates. And otherwise restitution is not to be made as long as it is uncertain that the action was efficaciously damaging.

4. An adulterous woman can sometimes be bound alone to repair the damages which happen by reason of inheritance: namely if she could easily remove the adulterine child so that he would be nourished outside the family, for example in a foundling house or hospice, and the adulterer did whatever he could to obtain this; for then he effectively retracted the cause of the damage and did not sin against the family, and the adulterous woman alone efficaciously caused the damage.

5. Nevertheless, regularly, even if it is necessary for avoiding or repairing damages, the mother is not bound to manifest her crime: namely she is not bound with danger of life, nor with danger of graver infamy unless she is already suspected and has partially lost reputation, nor with danger of great hatred on the part of the husband and relatives and of graver discord, nor without hope of fruit, when the manifestation will be of no use, whether because the son will not believe his mother, or because he will not restore, since it is foreseen that he cannot or will not wish to do this.

Nevertheless the mother would be bound if the aforesaid dangers of death, graver infamy, indignation, and scandal were absent, and the son were thought likely to believe his mother and to restore.

6. The illegitimate son is not bound to believe his mother affirming his adulterine origin, even under oath, but can consider himself as legitimate, unless from circumstances or indications the testimony of the mother produces such certainty as would suffice in a public judgment, as if the absence of the putative father at the time of conception is certainly proved. But if this is thus established, the son cannot retain the paternal inheritance, nor gifts which come to him from error, unless meanwhile he has lawfully prescribed.

7. The confessor to whom a dying adulterous woman would wish to entrust that after death he declare the offspring spurious cannot accept that office, both lest confession be rendered odious, and because the offspring would not be bound to give faith to his words, and thus the manifestation would be useless.

V. Corollary concerning Forcible Violation and Fornication. - Similar things hold for unjust or violent violation, which is carnal union with an unwilling unmarried woman, or the oppression of an honorable woman, even if not a virgin or not a minor; to whom damaging injury can be inflicted by reason of future marriage and by reason of offspring perhaps to be born. Now the unjust violator is bound to restore from justice:

1. On account of temporal damage, as inability or difficulty of marrying, infamation and dishonoring, syphilitic infection, etc., if in fact it has been inflicted, provided that it arose of itself from his action and consequently was foreseen in confused fashion. To this the one who oppressed the woman is also bound: to marry her, if he promised this, even fictitiously, and therefore truly deceived the woman, or if the damage cannot be repaired otherwise and graver evils are not prudently feared; otherwise he ought to dower her or increase her dowry, or otherwise take care that she can marry according to her condition, or contribute to her support, according as the damage was inflicted and it is possible to repair it.¹ Nevertheless he is not bound to compensation if in fact the woman has suffered no damage, as if she has already married well, or even otherwise could not have married, or has entered religion, or has been defamed from her own indiscretion, or has now died by premature death.

¹ See more in Summa Theol. Mor., II, n. 382.

2. On account of offspring born, so that, if he is the certain father, he ought from justice to provide for the whole support and education, according to the condition of the mother, until the offspring can suffice for himself. But if the father is uncertain, because several have had carnal union, he is bound to restore in proportion to the doubt, at least if they acted thus by common counsel or knowingly, because the voluntary cause is of the uncertainty of the father, which already is a great damage for the mother and offspring; otherwise he cannot be obliged to restore anything, since rather the mother is the cause why the father cannot be established.

In the case in which the woman has suffered violence or injury in no way, but has freely consented, the man contracted no obligation from justice of itself, but can be obliged from piety and charity. And indeed:

1. To the support of the offspring, according to the condition of the mother, by natural right he is bound for half the part, if he is the certain father, even if the civil law prohibits inquiry concerning the illegitimate father; but he is bound in solidum with the mother, so that, if she supplies nothing, he ought to provide for the whole; but if the civil law or the civil judge petitioned according to law should determine the quantity of support to be paid by the illegitimate father, this would have to be paid. But if there are several uncertain fathers, they are bound to half the support in proportionate part, at least if they acted thus by common counsel or knowingly, as was said above; otherwise none can be obliged to compensate for the support of the offspring.

2. To acknowledgment of the offspring and to its legitimation through subsequent marriage, unless graver inconveniences stand in the way.

Let it be noted that the man of himself owes nothing to the woman:

a) on account of the carnal union had, because to one knowing and consenting no injury is done; unless per accidens, as if he promised something, or, by indiscreetly manifesting the crime, defamed her;

b) on account of the expenses of childbirth, because by offering her body the woman is judged to have taken this burden upon herself.