Case 12. Previous Marriage

Bertha, twenty years of age, had married Caius, with whom she lived more or less peacefully for two years. Then Caius went to America because he could no longer earn in England the means by which he might support himself and his wife, and for some months faithfully sent letters and money to his wife, when suddenly the letters ceased and Bertha afterwards heard nothing about her husband. After some years, when Bertha had moved to another city, Titius, a non-Catholic who rented a room in her house, sought her as his wife. When Bertha consented, because of the impossibility of obtaining a dispensation from the Bishop, the wedding was celebrated in the Anglican Church. All these things happened before April 19, 1908; after that day, however, Bertha approached a confessor who, having heard the facts, affirmed that the marriage was invalid and that she ought to separate from Titius. Hence it is asked:

1. What is to be done when there is doubt about the free state of a betrothed person who wishes to enter marriage?

2. What is to be done after marriage has been contracted by someone uncertain of the death of a former spouse?

3. What is to be said of the case?

1. What is to be done when it is doubtful whether one is free to marry who wishes to do so?

Inquiry must be made and if the death of the previous spouse is proved by a certificate of death or other authentic document, or by two witnesses who are above suspicion, or by other lawful means, the person may be allowed to marry again. If any reasonable doubt remains the case should be referred to the bishop, who without the leave of the Holy See will not allow a second marriage unless the freedom to marry is proved.¹

1 Manual of Moral Theology, vol. ii, 296.

2. What should be done when a second marriage has been contracted by one who was not certain that a former spouse was dead?

“ If a person has unlawfully contracted a second marriage without the necessary certainty concerning the death of a former spouse, it does not follow that the second marriage is invalid, and that the parties must separate. If there is only slight doubt about the death of the former spouse, after making fruitless inquiries, the parties may live together as man and wife. If only one of the parties is in bad faith and is not certain of the death of a former spouse, while the other knows nothing of the difficulty, he should render the marriage debt, but he has no right to ask it as long as he remains in bad faith. If both parties are in bad faith, they can not lawfully use marriage as long as they are in that state. Inquiries should be made, and if probable reasons can be discovered for thinking that the former partner is dead, they may use marriage, according to a probable opinion. For even in this case the marriage has been contracted, it is probably valid, and it is not certain that any one else has a prior right, so the parties should be allowed to use it. If the second marriage was contracted in good faith, and a doubt about the death of a former spouse arises subsequently, inquiries should be made, and if they are fruitless the parties may live as man and wife. Of course in all cases when it is found out for certain that a former spouse is alive, the second marriage is invalid, and the parties must separate, or at any rate must not live as man and wife together.”¹

1 Manual of Moral Theology, vol. ii, 297; Ballerini, Opus Morale, vol. vi, 677.

3. The case. The confessor was wrong in deciding at once that Bertha must separate from Titius. The marriage with Titius was contracted in England where clandestinity was not a diriment impediment till 19 April, 1908. If when the marriage was celebrated Caius was dead, and if consent was given absolutely by both parties, and there were no other diriment impediment between Bertha and Titius, the marriage was valid though illicit. The confessor should therefore have made inquiries from Bertha as to whether Titius was baptized or not, whether there was any diriment impediment between them, whether Titius knew anything about her former marriage or not, whether there was any possibility of learning what had become of Caius. If Titius was a baptized Anglican and knew nothing about Bertha’s former marriage, and especially if there was no hope of learning anything about Caius, he could not be deprived of his marital rights without injustice. Under these same suppositions the confessor should tell Bertha how wrongly she acted in marrying Titius at all and especially in a Protestant Church, but that since in all probability her former husband is dead, she may live with Titius as his wife and frequent the sacraments. She should be told to pray for Titius’ conversion to the Faith, and if there are any children of the marriage to bring them up as Catholics. She should also be absolved from the excommunication which is incurred by marrying in a Protestant Church, if she was aware of the penalty.