Section — Noldin, Summa of Moral Theology
Section 3. Bond.
576. Nature of the Impediment. 1. The impediment of bond consists in this, that a spouse bound by the bond of matrimony cannot enter valid matrimony unless the prior matrimony has first been duly dissolved: for one who has already 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.1
By the name bond is understood the matrimonial bond by which each spouse is bound to the other. This impediment was constituted so that the unity of matrimony may be preserved.
- This impediment is founded on the dogma concerning the unity and indissolubility of matrimony. Wherefore it is of secondary natural law if the man attempts to enter another matrimony while his wife is still living; but if the wife attempts to enter matrimony while her husband is still living, the impediment is of primary natural law.
The Church has taught at every time that, while a prior matrimony exists, a new other matrimony cannot validly be entered, even if the second matrimony has been consummated and the first was only ratified. Wherefore it holds the second matrimony simply as concubinage, although a secular judge or religious sect has declared the first matrimony dissolved. But in the polygamy of infidels, the first wife is to be held as legitimate, unless the matrimony is shown to be invalid because of some diriment impediment.
1 Matt. 19, 9. 1 Cor. 7, 39. Cn. 1069, 1: One invalidly attempts matrimony who is held by the bond of a prior matrimony, although not consummated, saving the privilege of the faith.
577. Certainty Concerning the Free State. 1. In order that a second matrimony can be licitly entered, it is required that it be established with moral certainty that the prior matrimony has truly been dissolved; nor is probability concerning the death of the spouse sufficient, however great it may be:1 for it is not licit to expose a sacrament to danger of nullity outside a case of necessity. Wherefore a second matrimony entered without certain knowledge concerning the dissolution of the prior one is gravely illicit, but nevertheless valid if the prior matrimony has truly been dissolved.
- Concerning the obtaining of this moral certainty several instructions of the Roman congregations have appeared,2 from which these things are had:
a. The long absence of one spouse does not suffice, nor mere report concerning that person's death, nor the affirmation of one witness, unless he is above every exception and his testimony is confirmed from the circumstances. But positive and legitimate proof is required, such as ordinarily is either an authentic document or, if this cannot be had, the testimonies of two witnesses who are above every exception.
b. Extraordinarily, proof by indications is also admitted, which, taken together, suffice for obtaining moral certainty; relying on these, the ecclesiastical judge authentically declares the death of the spouse.
If the death of the spouse occurred in the very parish in which the second nuptials are celebrated, testimony is not required, since the matter concerns a fact publicly known. But if the spouse died in another place, the authentic testimony of the parish priest of the place where the death occurred is required. This testimony must be furnished with the parochial seal, and if it must be acquired from a distant diocese, also with the seal of the episcopal curia.3 If authentic testimony of this sort cannot be obtained, the matter no longer pertains to the parish priest, but must be referred to the ordinary. What must be done in this case is taught by the cited instruction of the Holy Office.
If a spouse in good faith contracted a new matrimony while the other party was still living, this matrimony, after the death of the other party has actually followed, does not become valid of itself, but consent must be renewed.
1 Cn. 1069, 2: Although the prior matrimony is invalid or dissolved, it is not therefore licit to contract another before the nullity or dissolution of the prior one has been legitimately and certainly established.
2 Instruction of the Holy Office (1870) for proving the death of some spouse; instruction of Clement X, August 21, 1670, which prescribes procuring full certainty concerning the free state of the contracting parties. Cf. Acta S. Sedis VI, p. 436 ff.
3 In order that matrimony be held valid in the civil forum, in Austria (G. A. n. 112 ff.) testimony of the civil authority concerning the death of the spouse is required; before this testimony has been obtained, the parish priest cannot proceed to the nuptials. Although this civil testimony does not suffice in the ecclesiastical forum, nevertheless the ecclesiastical judge can be assisted by it.