Section 8. Crime.

584. Nature of the Impediment. 1. The crime which dirimently impedes matrimony consists in the injury which both who intend to enter matrimony inflict on the already existing matrimony of one of them. In reality the impediment of crime contains three impediments diverse among themselves:

a. The first is contracted by those who, by mutual physical or moral work, even without adultery, brought death upon a spouse.¹

b. The second is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and one of whom committed spouse-killing.²

c. The third is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and mutually gave faith to each other concerning entering matrimony, or attempted matrimony itself, even only by a civil act.³

Therefore the impediment of crime is contracted in a threefold case: a. because of spouse-killing alone; b. because of spouse-killing with adultery; c. because of adultery alone with promise or attempted matrimony. This threefold impediment, taking its denomination from spouse-killing alone, is also customarily presented in this way, so that it is said to be contracted because of a crime committed a. with both perpetrating; b. with one perpetrating; c. with neither perpetrating.

2. These three impediments are of ecclesiastical law.⁴ Moreover, the Church, in establishing these impediments, intends: a. to provide for conjugal fidelity and the lives of spouses; for when all hope of contracting matrimony with an accomplice either of killing or of adultery has been removed, it at the same time removes the occasion of committing these crimes; b. to punish spouses because of the crime committed, by which injury is inflicted on matrimony and on the innocent spouse.

3. Therefore the Church can dispense from these impediments; but it does not dispense in all of them. Namely, if the impediment arises from adultery with promise of matrimony, it dispenses when a canonical cause exists. If the impediment arises from spouse-killing, whether perpetrated by each or by one party, and the spouse-killing is occult, it dispenses rarely and only from a most urgent cause. But if the spouse-killing is public, it does not dispense "because of the enormity of scandal."⁵

Whether those who are ignorant of this impediment incur it. The affirmative opinion is now certain, since Cn. 16, 1 of the Code establishes: "No ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said"; but nothing else is said anywhere concerning this matter.

¹ Caius, joined in marriage with Bertha, conspires with Sempronia to kill Bertha, in order that he may marry Sempronia.

² Caius, joined in marriage with Bertha, commits adultery with Sempronia and then kills Bertha in order that he may marry Sempronia.

³ Caius, joined in marriage with Bertha, commits adultery with Sempronia (whether unmarried or married) and promises her matrimony to be entered after the death of Bertha, or attempts matrimony itself with her.

⁴ Cn. 1075, which presents the impediment in the words related above.

⁵ Cf. Gasparri I, n. 653 ff.

585. In Order That an Impediment Arise from Spouse-Killing Alone, or from the crime with both perpetrating, these three things are required:

1. Mutual conspiracy for the killing of the spouse of either of them. Now conspiracy is had both in the case of cooperation, even remote, whether physical, e.g., by giving poison, or moral, e.g., by corrupting a doctor so that he does not ward off death, and in the case of inducement, by which one party moves the other to killing by counsel, prayers, or consent alone.

If therefore one of them alone schemes the death of the spouse, while the other party is ignorant, and no adultery has intervened between them, the impediment is not contracted, even if the ignorant party afterward approved the death of the spouse. Likewise it is not contracted if one party indeed consented to the killing, and nevertheless the consent in no way moved the other to the killing.

2. That the spouse-killing was committed at least by one party from the intention of entering matrimony with the accomplice of homicide, with this intention externally manifested. Although this condition is not expressed in the new law, nevertheless it is rightly presumed from the end of the law and is commonly required by interpreters.

If therefore the killing was done not from the intention of contracting matrimony with the accomplice, but from another motive, e.g., revenge, or of sinning more freely with the accomplice, the impediment is not present, since it was established by law lest spouses be killed from desire for another's matrimony.

3. Death really followed from the physical or moral action of one of the accomplices, not from another cause.

Therefore attempted homicide does not suffice, but real killing is required, whether the accomplices of the crime carry out the killing by themselves or through another.

586. In Order That an Impediment Arise from Spouse-Killing with Adultery, or from the crime with one perpetrating, these three things are required:

1. True adultery, formal on the part of each, perfect, actually committed before the spouse-killing.

a. True, which supposes valid matrimony at least on the part of one adulterer. Therefore the impediment is not contracted if the accomplice of adultery thinks the other party is married, when he or she is not; or if the other party is commonly held to be married, when nevertheless he or she is not, because, e.g., that person's matrimony is invalid because of an occult impediment.

b. In order that the adultery be formal on the part of each, it is required that the married state of the one with whom adultery is committed be known. If therefore only one of the adulterers is married, it is required that the unmarried person know that he or she sins with a married person; and if both adulterers are married, it does not suffice that each know himself or herself to be married, but it is required that one of them know the accomplice of adultery to be married. Namely, in order that formal adultery be committed, it indeed suffices that the adulterer know either himself or his accomplice to be married; but for inducing the impediment of crime, it does not suffice that each know himself to be married, because injury must be inflicted by each adulterer upon the same matrimony.

c. Perfect, that is, of itself apt for generating offspring. Besides, if copula has in reality intervened, it is presumed perfect unless the contrary is established.

d. Actually committed before the spouse-killing. If only schemes of spouse-killing preceded the adultery, the impediment is contracted; but if the death itself of the spouse precedes, it is not contracted, because after the death of the spouse adultery is no longer committed.

2. Spouse-killing perpetrated by one party, even while the other party is ignorant or even unwilling, with the intention of entering matrimony with the accomplice of adultery. Therefore it is not required that both conspire in the killing, but it suffices that either one accomplishes it, either by himself or through another.

Therefore neither the intention of perpetrating homicide nor the intention of perpetrating homicide in order to enter matrimony must be manifested to the other party, but it is necessary that the intention of entering matrimony with that same party be known to the other party.

3. The death of the spouse really followed from the physical or moral action of the spouse.

587. In Order That an Impediment Arise from Adultery Alone with Promise or Attempted Matrimony, or from the crime with neither perpetrating, these things are required:

1. True adultery, formal on the part of each and perfect, as was explained above.

2. A promise of entering matrimony with the adulterer, true (a feigned one does not suffice), absolute (a conditional one does not suffice), and mutual, that is, made by one party and accepted by the other with a counter-promise.

a. The question whether the impediment is present if, in the promise of matrimony, the conditions prescribed by the decree Ne temere are not observed, seems so much the more to have to be answered affirmatively because the new Code does not require betrothals for contracting the impediment, but only a simple promise of matrimony.

b. Concerning the promise of entering matrimony after the death of the spouse, the Code has nothing; therefore this condition is no longer required.

c. If the promise of matrimony is revoked before adultery has been committed, no impediment arises; but if it is revoked after adultery has been committed, the impediment already contracted does not cease.

d. Attempted matrimony also constitutes an impediment, although it is only clandestine (before a heretical minister, before a civil magistrate, between the delinquents alone), provided the one attempting knows that the other party is married or, when the error has been discovered, perseveres in the union. If someone, therefore, after having entered valid matrimony, obtains a civil divorce and then contracts a new civil matrimony and consummates it while the prior spouse is living, he contracts the impediment of crime. Wherefore, when the prior spouse has died, he cannot without dispensation enter matrimony with the civil spouse, unless this latter had previously been ignorant of the matrimony.

e. It not rarely happens that those who have obtained either dispensation in a ratified and non-consummated matrimony, or a document of liberty because of the presumed death of the spouse, wish to contract matrimony with a person with whom, while the prior bond existed, they had contracted civil matrimony and had consummated it.

But since a dispensation from the impediment of crime arising from adultery with attempted matrimony is rarely sought, Pius X, lest matrimony be exposed to danger of nullity, established that dispensation from this impediment is to be judged granted through the given dispensation either in ratified and non-consummated matrimony or through permission of passing to other nuptials.¹

f. Hitherto the question was disputed whether a promise accepted by the other party alone suffices for contracting this impediment, or whether a counter-promise is also required. Now one must say that a promise with counter-promise is required, since Cn. 1075, 1 says: those who have mutually given faith to each other concerning entering matrimony.

3. The adultery and the promise must be made during the same marriage: for in order that the impediment arise, the whole injury must be inflicted on one and the same marriage. Moreover, it makes no difference whether the promise precedes or accompanies or follows the adultery, and likewise it makes no difference by how much time the adultery and promise are distant from each other, provided they were made during the same marriage.

If Caius promises matrimony to Bertha while his spouse Anna is living, and after Anna's death marries Sempronia, during whose life he commits adultery with Bertha, he contracts no impediment.

¹ S. C. de Sacr., June 3, 1912. Cn. 1053.

588. The Impediment of Crime Can Be Multiplied both by reason of the delict and by reason of the marriage.

1. If the impediment arises from homicide alone, a twofold impediment is had when both conspirators are married and the spouse of each is killed by them.

2. If the impediment arises from homicide with adultery, a twofold impediment is had when both adulterers are married and each kills his or her spouse.

3. If the impediment arises from adultery alone, a twofold impediment is had a. when both adulterers are married and both know this circumstance; b. if Caius, joined in marriage with Bertha, commits adultery with Sempronia and promises her matrimony, then after Bertha's death marries Anna and during this marriage knows Sempronia again with promise of matrimony.