Morals of the Church
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Section — Wouters, Manual of Moral Theology

§ I. Adultery with a Promise of Marriage

787.

Canon 1075, 1° states: "They cannot validly contract marriage who, while the same legitimate marriage endures, have consummated adultery between themselves and have mutually given faith to each other concerning marriage to be entered." Therefore two things must concur: adultery and the promise of marriage, and indeed they must concur or be joined while the same legitimate marriage endures.

I. The adultery must be:

  1. True. Hence it is required that at least one or the other spouse be joined in a valid marriage. For the rest, it does not matter whether the marriage is consummated or only ratified.

  2. Consummated, namely by copula of itself apt for generation.

  3. Formal on each side, and this in such a way that by both, at least one and the same marriage has had injury inflicted upon it. Hence it is required that each party know at least the matrimonial state of one and the same person; but it is not required that each know the marriage of the other; nor is it sufficient that each know himself or herself to be joined in marriage.

Let there be cases: Peter, unmarried, has relations with Anna, a married woman, while ignorant of her marriage. There is not adultery formal on both sides. Paul, married, has copula with Rose, married; but neither knew the other's marriage. Injury is not inflicted upon one and the same marriage. Henry, married, and Bertha, married, commit adultery. Henry knows Bertha's marriage, but Bertha is ignorant of Henry's marriage. Each party inflicts injury upon the same marriage (St. Alphonsus VI, 1036). But the reason why injury must be inflicted upon the same marriage by both spouses is this: that the impediment was established lest hope of marriage lead to plotting the death of a spouse by the common design of each.

II. The promise must be:

  1. True. Therefore desire does not suffice, nor, as is more commonly taught, a fictitious promise. For "faith given" is required; moreover, since we are dealing with odious things, the law must be interpreted strictly, and therefore concerning a promise properly so called (St. Alphonsus VI, 1039).

  2. Duly intimated and accepted. For thus a promise is perfected or completed. Hence the silence of the other party does not suffice of itself (St. Alphonsus VI, 1037).

  3. Absolute, or, if it is not absolute, conditional, as follows: If the promise was made under a condition concerning the present or concerning the past, it is required that the condition exist. If it was made under a suspensive condition concerning the future, the condition must be fulfilled, and indeed, as is more commonly taught, before the death of the innocent spouse. The reason why the condition must exist or be fulfilled is this: because otherwise there is not simply a promise; yet such a promise is judged to be required, since we are dealing with odious things (St. Alphonsus VI, 1040). But the suspensive condition must be fulfilled before the death of the innocent spouse, because otherwise there is not simply a promise which gives occasion for plotting the death of the spouse.

  4. Mutual; for canon 1075, 1° declares: "and they have mutually given faith to each other."

  5. It is required, with sufficient probability, that it be a promise concerning marriage to be entered after the death of the spouse. For the cited canon speaks of marriage to be entered. But a promise about marrying while the prior spouse is living is rather a promise about attempting marriage. Hence we judge that the impediment does not subsist if, for example, Peter promises Anna, a married woman, that he will enter marriage after she has obtained a civil divorce.

  6. Finally, it is required with sufficient probability either that each, while promising, knew that one or the other was married, or that the promise, after that knowledge was received, was expressly or tacitly1 confirmed. The reason is that both the promise and the adultery must give occasion for seeking the death of the innocent spouse.

III. Joining of adultery and promise. Adultery and promise must have place while the same legitimate marriage endures; therefore they must have existed together, and this while the same legitimate marriage persisted. But it does not matter whether the promise precedes the adultery or the reverse.

  1. They must have existed together. Hence if the promise preceded the adultery, it is required that it was not revoked before the adultery. But that it is revoked after the adultery has been committed effects nothing, because they already existed together.

  2. They must have existed together while the same spouse was living. Hence the impediment does not arise if, for example, Peter, while his prior marriage stands, had copula with Anna, unmarried, and promises marriage to her during the time of his second marriage.

1 For example, Peter promises marriage to Anna while ignorant of her marriage. Afterwards, once Anna's marriage has become known, moved by the promise made, he commits adultery with her.

CrimeAdultery with Promise of Marriage