Article III: On the Bond or Ligamen

S. Th., Suppl., q. 65, a. 1.

881. The impediment of bond or ligamen (lien conjugal; bestaande huwelijksband) consists in this, that a spouse is incapable of entering a new matrimony while the bond of the prior one endures; therefore it is the very bond of the prior matrimony, whether consummated or non-consummated, by which one spouse is so bound to the other that, while that bond endures, he cannot enter matrimony with any other.

For this impediment two conditions are required:

1° That the prior matrimony be valid, whether it has been consummated or not consummated.

2° That the bond of the prior matrimony has not been legitimately dissolved, which happens by death, and can happen by solemn religious profession and pontifical dispensation for non-consummated matrimony, and, for consummated matrimony, by the Pauline privilege, namely of departing from the unbelieving party, if this is necessary in favor of the faith.

882. Principle. He who is held by the bond of a prior matrimony invalidly attempts matrimony, although it was not consummated, saving the privilege of the faith. - Thus can. 1069, § 1.

The impediment is of natural and divine law, which diriments matrimony to be contracted. For he who has handed over the right over his body to one person cannot hand over the same right to another, unless the prior contract has been legitimately dissolved. It is founded in the essential properties of matrimony, namely unity and indissolubility; and it also binds unbelievers.

Hence: 1° He who, in good faith thinking the other party dead while that party is still living, passes to other nuptials, contracts invalidly, although he does not sin; nevertheless offspring received from the second union is reputed legitimate (can. 1114).

2° On the contrary, one thinking the other party who is dead to be still living sins gravely when he enters a new union, although this can be valid, according to what was said n. 808, 2.

3° He who after contracting other nuptials discovers that the prior spouse is still living must separate himself from the second spouse, even if he has begotten offspring with that spouse and grave evils are to be feared from the separation, because the second nuptials are certainly null. And of himself he is bound to return to the prior spouse, unless a just cause of separation is given.

883. Practical corollary. - "Although the prior matrimony is invalid or dissolved from any cause whatever, it is not therefore licit to contract another before the nullity or dissolution of the prior one has been legitimately and certainly established," can. 1069, § 2; otherwise the matrimony is exposed to the danger of nullity, and the contracting parties to the danger of adultery.

a) It must be established certainly; therefore probability or verisimilitude does not suffice, nor a fortiori doubt or ignorance arising from the fact that the spouse after departure has sent no message; but true moral certitude is required.

b) It must be established legitimately; therefore in even a slight doubt there must be obtained an authentic declaration of the Ordinary or of the Holy See concerning the death of the spouse, or concerning the invalidity or legitimate dissolution or dissolubility of the prior matrimony. 1

884. Penalties against violators of the impediment acting in bad faith are noted in can. 2356: "Bigamists, i.e., those who, with a conjugal bond standing in the way, have attempted another matrimony, even only a civil one, as they say, are by the fact itself infamous; and if, after the admonition of the Ordinary has been scorned, they persist in illicit cohabitation, let them, according to the diverse gravity of guilt, be excommunicated or punished by personal interdict," namely by a sentence to be brought.

1. Concerning the mode by which the death of a spouse or the nullity of matrimony must be established, cf. decree of the Holy Office, Apr. 27, 1887, with instruction May 13, 1868; response July 20, 1898; and response of the interpreting commission, Oct. 16, 1919. Let it be noted that license to pass to other nuptials includes dispensation from the impediment of crime on account of adultery alone, even if a license of this kind was conceded by the local Ordinary (can. 1053 and its interpretation by the Commission for the Interpretation of the Code, March 26, 1952).