Case 7. Restitution for Adultery

Titia, a Protestant, asked Paul the priest to receive her into the Catholic Church. Paul, however, found that she was very well instructed, and that the sole difficulty she felt was whether she was bound to disclose to her husband the truth concerning the paternity of her only daughter. For she knew with certainty that the daughter was not her husband’s, although he believed her to be his, but was born of adultery. It is very probable that, on account of her age, Titia will have no other offspring, in which case the only daughter will succeed to the property of her mother and to at least a large part of her husband’s property. Hence it is asked:

1. By what right do children succeed to the property of their parents?

2. To whom, by whom, and what kind of restitution is to be made on account of adultery?

3. What is to be said of the case?

1. By what right do children succeed to the property of their parents?

According to the common opinion, children have a natural right to succeed to the property of their parents, though this right may be determined and modified by positive law, or by the will of the parents, and even be altogether taken away for good reason.¹

1 Lehmkuhl, vol. i, no. 1141.

2. To whom, by whom, and what restitution is due for adultery?

Adulterers are bound jointly and severally to make restitution for all the damage which follows to others from the adultery on account of the illegitimate child being supposed to be legitimate. This, however, supposes that it is known for certain that a child is illegitimate, and this can seldom happen if the husband is living maritally with his wife. If he is not living with her, both he and others will know that the child is illegitimate, and so there will be no damage done which has to be repaired; for the merely personal injury which adultery inflicts on the adulterer’s consort is irreparable.

3. The case. Titia is not bound to make known her sin to her husband, and she should not do it. More harm than good would come of it. The case says that she is certain that her child is illegitimate, though her husband thinks it is his. On this hypothesis she should make up, out of her own property, the damage which her husband’s property incurs on account of his treating the child as his, unless he does this out of affection for the child, and not precisely because it is his. In practice, the illegitimacy will either be doubtful, and then Titia will be strictly bound to nothing, or her husband will know it, and then whatever he spends on the child will be given to it knowingly, and no restitution will be due to him, or to others, for this.¹

1 St. Alphonsus, book iii, no. 651.