Article III. Bond

I. Notion. By the impediment of bond is understood the bond of a valid marriage; while that bond endures, another marriage cannot validly be contracted.

II. Existence of the impediment. The bond diriments marriage by divine law, both natural and positive; this follows from what was said concerning the unity and indissolubility of marriage (St. Thomas, Supplement, q. 65, a. 1; St. Alphonsus VI, 1060). The impediment is confirmed by ecclesiastical law (canon 1069).

III. Cessation of the impediment. The impediment ceases through the dissolution of the matrimonial bond. In what ways this can happen, apart from the death of the other party, see n. 720 and following.

IV. Requisites in order that it be lawful to pass to new nuptials. Although the prior marriage is invalid or dissolved for any cause whatever, it is not therefore lawful to contract another before the nullity or dissolution of the prior marriage is legitimately and certainly established (canon 1069, § 2). Therefore it is required that concerning the nullity or dissolution of the prior marriage: 1° it be certainly established; 2° it be legitimately established. It must be certainly established, because it is not lawful to expose oneself either to the danger of inflicting injury upon the prior or possessing marriage, or to the danger of contracting the new marriage invalidly (St. Alphonsus VI, 981, 1060). It must be legitimately established because, since the matter concerns the external forum, private certainty does not suffice. Now:

1. In the case of nullity of marriage there is required a sentence of the competent ecclesiastical judge, rendered and announced with the order of law being observed. But spouses have the right of contracting new nuptials after ten days have elapsed from the announcement of the second sentence (canon 1987).

"When from a certain and authentic document, which is subject to no contradiction or exception, the existence of an impediment of disparity of cult, order, solemn vow of chastity, ligamen, consanguinity, affinity, or spiritual relationship has been established, and at the same time it has appeared with like certainty that a dispensation upon these impediments has not been given, in these cases, with the solemnities so far enumerated being omitted, the Ordinary, the parties having been cited, can declare the nullity of the marriage, but with the intervention of the defender of the bond" (canon 1990; cf. also canons 1991 and 1992). Indeed, if the union does not even have the appearance of marriage, as a merely civil marriage entered by persons subject to the ecclesiastical juridic form, the Ordinary, or even the pastor after consulting the Ordinary, can permit new nuptials, with every juridic formality being omitted and without intervention of the defender of the bond.¹ Finally, if in the judgment of the Ordinary the first marriage is certainly null, and in the place is unknown to all, we judge that for the internal forum the spouses are not to be disturbed in a second marriage contracted in good faith.²

Note. The Holy Office responded to the Bishops of Tonkin:³ "But if, after suitable investigations have been made, it is established that infidels entered marriage without observing those things which by the law or custom of the kingdom are required for validity, and one or the other of them comes to baptism and wishes to enter nuptials with a faithful person, those nuptials are not to be permitted unless license has been obtained from the Sacred Congregation of the Holy Office, or unless an interpellation made of the prior spouse has fallen to no effect."

2. In the case of dissolution of marriage by Pontifical dispensation or by religious profession, there is required an authentic document of the dispensation granted or of the profession made; if there is question of religious profession, the non-consummation of the marriage must also legitimately be evident.

3. In the case of dissolution of marriage by the death of the other party, the required certainty is first obtained through evidence of a public fact. But how it is to be acquired in a case in which the said evidence is lacking is set forth by the Instruction of the Holy Office.⁴ In view of it, first note that merely negative proofs, such as absence alone, however long continued, do not suffice,⁵ unlike what holds in civil law for several nations. Therefore positive proofs are required. Now:

a) Before others, "an authentic document must by all means be sought with diligent care: namely, one drawn from the registers of the parish or hospital or military service, or even, if it cannot be had from ecclesiastical authority, from the civil government of the place in which, as is supposed, the person died" (cited Instruction, n. 2; cf. canon 1813, § 1, 4°).

b) If the document is lacking, it must be seen whether two witnesses can be had who are trustworthy, sworn, and who depose concerning their own fact, knew the deceased, and agree with each other concerning the place and cause of death and the other substantial circumstances (cited Instruction, n. 3; cf. canons 1791 and 1828).

c) In default of two witnesses, even one witness is admitted, "provided that that witness is endowed with the conditions enumerated in n. 3, is subject to no exception, and moreover his deposition is supported by other grave aids, and at least nothing is found in his testimony which is not congruous and wholly probable" (cited Instruction, n. 4).

d) In default of any witness, "proof of death from conjectures, indications, and circumstances of any kind must certainly be procured by a careful and very cautious investigation, namely so that, with several things collected from here and there and their nature weighed..., the judgment of a prudent man can be moved to affirm death by the greatest probability, or moral certainty" (cited Instruction, n. 6).

e) Report also, aided by other supports, constitutes an argument concerning death, under these conditions, namely: that it be proved by at least two trustworthy and sworn witnesses, who depose concerning the reasonable cause of the report itself, whether they received it from the greater and sounder part of the people, and whether they themselves think rightly concerning the same report; nor must there be doubt that it was stirred up by those for whose benefit inquiry is being made (cited Instruction, n. 8).

If the matter remains doubtful, and if there is hope of success, let the Ordinary have recourse to the Holy See.

Corollary I. If someone, after waiting in vain for the return of the other party for several years, in bad faith marries another, the spouses must be separated.⁶

Corollary II. If persons, after waiting in vain for the return of the other party, judged that party to be dead, and in good faith entered new nuptials, the spouses should be left in good faith until news is had of the life of the other party.⁷

Corollary III. If the death of the prior spouse is legitimately and certainly established, the pastor can assist at the new nuptials without recourse to the Ordinary, unless there is question of vagi. If some doubt remains, the Ordinary should be consulted; and this must regularly be done if death cannot be proved except in the way set forth under d or e.

¹ Pontifical Commission, October 16, 1919, ad XVII (A.A.S. 1919, p. 476).

² Gasparri, I, n. 633.

³ September 24, 1915.

⁴ May 13, 1868.

⁵ Rescript of Pius VI to the Archbishop of Prague, July 11, 1788; cf. Sacred Congregation of Propaganda Fide, March 22, 1865, ad 1 (Collectanea, n. 1272).

⁶ Holy Office, March 22, 1865 (Collectanea, n. 1272, ad 1).

⁷ Holy Office, March 22, 1865 (Collectanea, n. 1272, ad 1).

4. Permission, made by the Holy See, to pass to other nuptials because of the presumed death of the spouse always carries with it dispensation from the impediment arising from adultery with promise or attempted marriage, if any such dispensation is needed, but by no means dispensation from the impediment of which canon 1075, nn. 2, 3 treats (canon 1053).¹

¹ Canon 1075, nn. 2, 3 treats of adultery with murder of a spouse and of murder of a spouse alone.

V. Penalty against bigamists. Bigamists, that is, those who, notwithstanding the conjugal bond, have attempted another marriage, even one merely civil, as they say, are infamous by the fact itself; and if, after the Ordinary's warning has been spurned, they persist in the illicit concubinage, they are to be excommunicated or punished with personal interdict according to the different gravity of guilt (canon 2356). Moreover, from infamy there arises irregularity (canon 984, 5°); if copula has followed, there arises the impediment of crime (canon 1075); the children are adulterine or, after the legitimate other party has died, illegitimate. The bigamists themselves - if the crime is public - are public sinners, and therefore, unless they repent, are to be barred from the sacraments (canon 855), from the office of sponsor (canon 765), and from ecclesiastical burial (canon 1240); besides this, the woman delivered of a child is to lack the blessing after childbirth.