Adultery with Promise of Marriage

When husband or wife commits adultery with a third person and promises to marry that person after the death of the other spouse, the Church makes the adulterers incapable of contracting a valid marriage even after the first has been dissolved by death. The aim of the Church is to protect married people, to guard the sanctity of marriage, and to punish crime. A law, however, which restricts the liberty of marriage must be strictly interpreted, and so Doctors require the following conditions in the adultery and in the promise in order that the impediment may arise:

(a) The adultery must be real, formal on both sides, and complete. It must be real, or one at least of the parties must be united in a true, valid marriage. That fact must be known to both the adulterers, or else they are not guilty of formal but merely material adultery. If each party knows that the other is married and the other conditions are verified, there will be a double impediment between them. The adultery must be complete, so that it would be possible for it to produce its natural result in offspring.

(6) The promise, too, must be real, not fictitious, accepted by the promisee, absolute, not conditional, made with knowledge of the present marriage, and undertaking to contract marriage after the death of the other spouse. For one of the objects of the law is to remove the temptation to plot against the life of husband or wife.

Both the adultery and the promise must have place during the continuance of the same marriage, but it is immaterial whether the promise be made before, after, or at the same time as the adultery is committed.

This impediment of crime also exists between parties who have committed adultery with each other and attempted to marry during the lifetime of the spouse of one of them. The adultery must have the same qualities as in the preceding case, and the marriage must be really and truly attempted, not merely feigned. It is immaterial whether the attempted marriage precede or succeed the adultery. It is obvious that those will lie under this impediment who, after a civil divorce from a spouse, marry again and consummate the attempted marriage.

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.

Canon 1075, 1° states: "They cannot validly contract marriage who, while the same legitimate marriage endures, have consummated adultery between themselves and... have attempted that marriage itself, even by a merely civil act." Therefore there are required:

I. Adultery, and of the sort set forth in n. 787.

II. Attempted marriage. By this is understood here an act by which two persons, knowing that because of the impediment of ligamen they cannot enter another valid marriage, truly offer conjugal consent to each other. It is required that each be conscious of the impediment, because each must attempt marriage. For the rest, with regard to the consent to be offered, it is the same whether it is offered in the form required by law or without it, even if it is done merely civilly. Mere concubinage as such does not involve matrimonial consent, although it can give occasion for offering it, or even, with the custom of the place considered, carry it with itself.¹

III. The joining between adultery and attempted marriage must be the same as between adultery and the promise of marriage (n. 787).

Corollary. All those who, after a validly contracted marriage, seek and obtain a civil divorce, and then contract and consummate another civil marriage, incur this impediment; and therefore, although the prior marriage has been dissolved, they cannot enter marriage without a dispensation.²

¹ Sacred Congregation of Propaganda Fide, January 14, 1844.

² Vlaming, I, n. 318.

"As Pickler explains according to the Sacred Canons, l. 4, Decretals, tit. 7, that adultery may induce a diriment impediment, it is required that there accede to it either a promise of future marriage, or a contract of marriage de praesenti with the adulteress or adulterer while the prior spouse is still living. But to contract, or to attempt, marriage de praesenti is to enter nuptials, certainly invalidly, by words de praesenti, or by some other sign which includes the promise of consent; yet it makes no difference whether the adultery preceded the attempted marriage or followed it.... That the taking of a concubine, or rather of an adulteress, be had in the case as a true attempted marriage, it is necessary that it include a promise of marriage, either de praesenti or de futuro." S. C. de P. F. 14 Jan. 1844.

"Since I., bearer of the present letters, had a legitimate wife by the name A., he perpetrated adultery with M.; and since he had been summoned into court over this, he abjured the adulteress, and afterwards, the oath having been contemned, while the legitimate wife was living, presumed to contract marriage with her and to cohabit with her for a long time. Finally, after the aforesaid A. was taken away from the present light, the mentioned I. lived with the adulteress for ten years, by whom he procreated ten sons. Therefore we give such a response to your consultation, that they be altogether separated, and, penance having been enjoined upon them, perpetual continence be indicated, especially since both have advanced in their days, and, enduring so long publicly in adultery and perjury from certain knowledge, have disturbed the Church in grave scandal. For you know that Pope Leo established that no one should take in marriage her whom he polluted by adultery; and that here there was more process than if faith had merely been pledged to the adulteress, that, when the legitimate wife was dead, he would take her as wife, since even while the first was living, as adulterer with adulteress, he presumed to adhere to the same woman as if matrimonially, and rashly to violate his sacrament; which union indeed, where also no religion of oath intervened, both Pope Gregory and the Synod of Tribur detests, and ordered each person joined in this way to be subjected to public penance and to remain perpetually without any hope of marriage." etc. Chap. Cum haberet 5, De eo qui duxit in matrim., etc.

“As Pickler explains according to the sacred canons, book 4 of the Decretals, title 7, in order that adultery may induce an invalidating impediment, it is required that there be joined to it either a promise of future Marriage or a contract of present Marriage with the adulteress or adulterer while the prior spouse is still living. But to contract, or attempt, a present Marriage is to enter nuptials—invalidly, of course—through words of the present tense or through some other sign which includes a promise of consent. It makes no difference, however, whether the adultery preceded the attempted Marriage or followed it.... In order that the taking of a concubine—or rather, an adulteress—may be regarded in the case as a true attempted Marriage, it is necessary that it include a promise of Marriage, whether in the present or in the future.” Sacred Congregation for the Propagation of the Faith, 14 January 1844.

“When a certain I., bearer of the present letter, had a lawful wife named A., he committed adultery with M.; and when he had been summoned to law concerning this, he forswore the adulteress, and afterward, having despised his oath, while his lawful wife was still living, he presumed to contract Marriage with the adulteress and to cohabit with her for a long time. Finally, after the aforesaid A. was taken from the present light, the aforementioned I. remained with the adulteress for ten years and begot ten sons by her. We therefore give this response to your consultation: let them be altogether separated and, penance having been imposed upon them, let perpetual continence be enjoined, especially since both have advanced in years and, knowingly persisting for so long publicly in adultery and perjury, they have disturbed the Church with grave scandal. For you know that Pope Leo established that no one is to take in Marriage a woman whom he has defiled by adultery; and that here matters proceeded further than if a pledge had merely been given to the adulteress that, after the lawful wife had died, he would take her as his wife, since the same man presumed, even while the first wife was living, to adhere to the adulteress almost matrimonially as an adulterer and rashly to violate his oath. This union—which both Pope Gregory and the Synod of Tribur detest, even where no sacred obligation of an oath intervened—they command that each person joined in this manner be subjected to public penance and remain perpetually without any hope of Marriage,” etc. Chapter Cum haberet, 5, On Him Who Took in Marriage, etc.

820. • For the impediment under this title to be incurred, it is required:

1. That the adultery be true, formal, and consummated. First, true, that is, that at least one of the fornicators be joined in a matrimony that is not merely putative but legitimate and valid, even if perhaps not consummated. Next, formal, and indeed on both sides, that is, that each know that one of them is married ². Finally, consummated, namely, with perfect carnal intercourse intervening ³. I said formal on both sides, because odious things are to be restricted. - Thus commonly. - St. Ligorius, no. 1036.

² It therefore suffices that someone knowingly approach a married woman, nor is it necessary that the married woman know that the man with whom she commits adultery is also married.

Add with St. Alphonsus (book 6, no. 1036, V) that adultery must not be called formal if, even only from culpable and crass ignorance, the accomplice did not know that the other was married. For every ignorance of fact excuses from penalties unless it is affected ignorance; and, moreover, malice is required for formal adultery, and this is absent where ignorance is present.

³ In the external forum this is always presumed. These statements therefore apply only to the forum of conscience; in which, if the Confessor truly discovers that the act was not consummated even on the woman's part - see what was said above in the note to no. 811, II - he ought not to raise a scruple concerning the impediment, whether there is question of a matrimony already contracted or one to be contracted. Schmalzgrueber, book 4, title 7, no. 50.

2. That there be a promise of matrimony made by one adulterer and accepted by the other at least through some sign ⁴, whether this promise precedes, accompanies, or follows the adultery; but if it precedes, it is required that it not have been retracted before the adultery. More probably, however, a renewed promise is not required ⁵.

⁴ Both the promise and its acceptance must be true, and therefore a fictitious one does not suffice. See St. Alphonsus, book 6, no. 1039, and Schmalzgrueber, book 4, title 7, nos. 22-24, who confirms this from canon Significasti 6, On One Who Has Married, etc. Moreover, a conditional promise or acceptance does not suffice so long as the condition has not been fulfilled. It must be said otherwise if the added condition is fulfilled before the death of the spouse, and much more if before the adultery is perpetrated; for what certain authors say - cited by St. Alphonsus, l.c., no. 1040 at the end - namely, that even after the fulfillment of the condition the promise cannot be called pure, is entirely futile. See

Schmalzgrueber, l.c., nos. 25-28. And precisely the same must be held concerning the opinion of Pontius (On Matrimony, book 7, chapter 45, no. 2), that the silence of one party suffices for the promise of the other. For the acceptance of the promise here takes the place of an offense upon which a penalty is to be imposed; and it is very well known that offenses are not presumed. But in the case an offense would be presumed, because in silence we have merely presumed consent. Therefore the opinion does not stand. What is indeed astonishing is that Pontius, as we shall soon see, is the leader of those who deny that the impediment is incurred by one plotting the death of a spouse unless he outwardly signifies the intention of contracting matrimony; and he principally uses the reason that a merely internal act cannot be punished. But now, forgetful of himself, he contends that a merely internal and even merely presumed acceptance suffices for incurring the penalty! We have already observed elsewhere, however, that a blind fury for contradicting Sanchez has everywhere carried the man into absurdities and contradictions. Moreover, even if it existed, the probability of that opinion would be invoked here in vain. For mere opinion cannot be sufficient to establish a certain impediment. See Schmalzgrueber, book 4, title 7, no. 21.

⁵ Some strength can also accrue to this opinion from canon Significasti 6, On One Who Has Married, etc. Nevertheless, since probability is also not lacking to the opposite opinion - see Schmalzgrueber, book 4, title 7, no. 30 - in a doubt whether a renewed promise occurred, according to the general canon the impediment can be considered merely probable and thus uncertain, which amounts to the same as none.

3. That both the promise of matrimony and the adultery occur while the prior spouse is living, or while the same matrimony endures ⁶. - Thus from several passages of Canon law, for example, from canon Si quis vivente 5, cause 31, question 1; likewise from canon Propositum 1, On One Who Has Married, etc. - St. Ligorius, no. 1037 and following ⁷.

⁶ Namely, both the adultery and the promise of matrimony must tend to the injury of one and the same spouse. This would not occur if Berta, for example, while her first husband was living, promised matrimony to Titius, but committed adultery with Titius when, after the death of the first husband, she had married Caius.

⁷ Adultery invalidates matrimony by law not only when a promise of future matrimony is added, namely, of matrimony to be contracted after the death of the spouse - for if matrimony to be contracted while the other spouse was still living were promised, the reason for the impediment would cease, as Schmalzgrueber observes with the Doctors, book 4, title 7, no. 9 - but also if the adulterer, while the spouse is still living, contracts or rather attempts matrimony de praesenti with the adulteress. This is evident from canon Cum haberet 5, On One Who Has Married, etc. Nor does it matter whether he attempts to contract matrimony before the pastor and witnesses or clandestinely. For in establishing this impediment, regard is paid not to the validity of the matrimony or of the betrothals, if only a promise intervenes, which are contracted invalidly, as is evident, but to the reason of the crime. But if the accomplice was ignorant of the other's legitimate marriage when entering matrimony with that person, distinguish two hypotheses. Either, upon learning of the other's marriage, the accomplice commits adultery without retracting the matrimony, and thus the impediment will be introduced; for if the accomplice perseveres in the matrimony after acquiring knowledge, it is deservedly regarded as knowingly contracted, and, when joined with adultery, no less provokes the seeking of the other's death than if it had been knowingly contracted from the beginning. Or the accomplice retracts the matrimony before the adultery, or even ceases from the adultery, which previously had been material and not formal, immediately upon learning of the other's marriage, and thus the reason for the impediment is absent. Compare Schmalzgrueber, l.c., nos. 12 and 15.

823. • Hold all these things in memory in these fewer words:

1. Adultery with a promise of matrimony accepted by the other party.

2. Homicide from common conspiracy and with the intention of contracting matrimony, held by at least one party and manifested.

3. Both together with a view to matrimony, but without conspiracy and a promise of matrimony ¹².

¹² Since this impediment of crime is of ecclesiastical law, it has no place among unbelievers, as St. Alphonsus also touches upon from the common doctrine (book 6, no. 1037), even if they afterward come to the faith. The same must be said if, as regards the first of the received causes of this impediment, either one of the two, namely, either the adultery or only the promise, was made after Baptism. See Schmalzgrueber, book 4, title 7, no. 3. Likewise, as regards the third cause, if the believer was not a participant in the killing which the unbeliever perpetrated. Schmalzgrueber, ibid., no. 46. But if a believer, after matrimony has been promised, commits adultery with an unbeliever, and likewise if a believer, as regards the third cause, perpetrated the killing, or, as regards the second cause, was a participant in the plotting or killing, the believer incurs the impediment, by which consequently, although indirectly, the unbeliever also is bound, just as happens in the impediment of disparity of worship. Indeed, this has place even if a believing wife did this so that her unbelieving husband, after afterward entering matrimony with her, might be converted to the faith, as is expressly contained in canon Laudabilem 1, On the Conversion of Unbelievers, where the Pontiff gives this reason: that the Church does not wish to compensate such a loss with such a gain. See Schmalzgrueber, l.c., nos. 46-48.

823. First and second cases: Adultery with a promise or attempted matrimony.¹⁶⁶

In order that the impediment of crime truly arise, certain conditions are required both on the part of the adultery, on the part of the promise, and on the part of the attempt.

On the part of the adultery, it is required that it be:

1. True, that is, that a true and valid matrimony be violated. Therefore the impediment does not arise if the matrimony to which the injury is done is null or even putative.

2. Formal on the part of each, that is, each sinner must know that one and the same matrimony (or two marriages) is being violated. Therefore, for example, if a disguised spouse sins with another's spouse who is likewise disguised, each indeed knows that he is violating his own matrimony, but nevertheless the impediment of crime does not arise, because each adulterer does not know that the same matrimony is being violated.¹⁶⁷ Ignorance of the matrimony, therefore, provided that it is not affected, excuses from this impediment; but ignorance of the impediment does not excuse, as will be said below.

3. Consummated, that is, through a copula of itself apt for generation. Therefore an onanistic or sodomitical copula or another immodest act does not suffice.

¹⁶⁶ This is deduced from cc. 1, 6, 7, X, 4, 7. If anyone rightly understood these chapters, it certainly was St. Raymond, who compiled them with the full authority of Gregory IX. Now St. Raymond speaks thus concerning this case: The impediment is present if someone "gives a pledge to an adulteress that he will take her after the death of her legitimate husband, or after the death of the wife of the adulterer himself" (Summa, bk. 4, De impedimento criminis).

¹⁶⁷ Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1036.

825. On the part of the attempted matrimony, the same qualities are required which were enumerated above for the promise of matrimony. By an attempted matrimony is understood an act by which two persons, conscious of the existing impediment of bond, truly and seriously furnish conjugal consent to one another by words or other signs of the present, whether publicly or clandestinely.¹⁷³ Therefore an attempted matrimony is not present a) if the two adulterers intend nothing other than pure concubinage; b) if either of the contracting parties is unaware of the impediment of bond; but if, after becoming aware of the bond of the prior valid matrimony, that person perseveres in concubinage, the impediment of crime immediately arises. - In our times this attempted matrimony is found especially in so-called civil matrimony, to which a spouse hastens after obtaining the civil divorce of the prior matrimony.¹⁷⁴ Therefore, when such a civil matrimony is contracted and consummated in contempt of the prior matrimony, the impediment of crime is present.

Note. All marriages invalidly contracted while this impediment existed (the second case) were sanated by Pius X on June 3, 1912.¹⁷⁵

¹⁷³ Thus Vlaming, Prael. de iure matrim. I, 8th ed., n. 318.

¹⁷⁴ Cf. Sacred Congregation for the Propagation of the Faith, January 14, 1844; Vogt, Das kirchl. Eherecht, § 42; Wernz-Vidal, Ius can. V, n. 329.

¹⁷⁵ Acta Ap. Sed. IV, 403. The same Supreme Pontiff established that thereafter a dispensation from the said impediment in a given case is held to be conceded a) through a dispensation given from a ratified and non-consummated matrimony, b) through permission given for passage to other nuptials because of the presumed death of the spouse. The Code of Canon Law, can. 1053, confirmed this, but with the case of spouse-killing excluded.

897. Crime (crime; misdaad of misdrijf), which is an impediment of matrimony, consists in the injury which both, who intend to enter matrimony, inflict upon the matrimony of one of them already existing, or in qualified complicity against the honesty of marriage.

It arises from a threefold crime and therefore is in reality a threefold impediment:

1st on account of adultery alone with promise or attempted matrimony,

2nd on account of adultery with spouse-murder committed by one,

3rd on account of spouse-murder alone committed by common action.

It is customarily denominated the impediment from the death or killing of the spouse, and therefore respectively is said to be contracted either with neither plotting or perpetrating; - or with one plotting and perpetrating; - or with both plotting and perpetrating.

For, as St. Thomas says, q. 60, a. 2:

"1° In that in which someone sins, he must also be punished. But he sins against matrimony who kills his wife (or commits adultery). Therefore he ought to be punished so that he be deprived of matrimony.

2° Wife-murder from the statute of the Church impedes matrimony... and... sometimes diriments it when contracted: as when someone kills his wife in order to marry her with whom he commits adultery. For then he becomes an illegitimate person simply for contracting with her, so that, if in fact he has contracted with her, the matrimony is dirimented. But through this he does not become simply an illegitimate person with respect to other women."

898. Principle II. Those cannot validly contract matrimony who, while the same legitimate matrimony endures, have consummated adultery between themselves and have mutually given faith to each other concerning entering matrimony, or have attempted matrimony itself, even only by a civil act. - Thus can. 1075, 1°.

The conditions required for the impediment are:

A. On the part of adultery, that it be true, formal, and consummated.

1° Let it be true, so that at least one accomplice is bound by a valid matrimony.

2° Formal on the part of each, i.e., so that each knows the conjugal state of at least one and the same accomplice, and thus injury is inflicted upon one and the same matrimony.

3° Consummated by perfect copula by which otherwise matrimony is consummated; moreover, copula once had is presumed perfect.

B. On the part of faith given or promise, that it be true, free, absolute, and mutually given and accepted; or there is an attempted matrimony.

1° Let it be true and serious, not feigned or jocose. For an irritating law is of strict interpretation (can. 19), whence any fiction, even merely internal, seems to stand in the way of the impediment being present.

2° Free, not extorted by grave fear or deceit, nor vitiated by substantial error.

3° Absolute, not merely conditioned, unless the suspensive condition was fulfilled before the death of the spouse, because then the promise has already passed into an absolute one.

4° Mutually given, as now is certain from the tenor of the canon, and accepted by word or sign; hence it does not suffice that one party promise, if the other behaves negatively, a fortiori if he rejects it.

5° Or an attempted matrimony, by which, conscious of the impediment of ligamen, they truly and seriously furnish conjugal consent mutually to each other, although invalidly: it matters little by what pact the attempt is made and in what form, whether public and prescribed by the code, or wholly clandestine, or merely civil.

C. On the part of the circumstances, that the promise or attempted matrimony and adultery are knowingly done while the same union stands, so that they simultaneously violate the fidelity owed to the same spouse, 1 whether the promise or attempted matrimony precedes the adultery, or follows it.

Hence the impediment does not arise if the promise accedes to adultery after the death of the spouse, or if it was made while the first spouse was living and the adultery was committed while the second was living, or vice versa; or if, made previously, it was retracted before the adultery and this was notified to the accomplice, and not repeated after it; - on the contrary, if it was retracted after the adultery, the impediment which has already been contracted does not cease.

1. There are those who require the promise to be injurious to matrimony both materially and formally. Hence if an adulterer with the wife's sister should afterward only promise matrimony to her before the wife herself while dying, and indeed with the wife consenting and entreating it in favor of the offspring born, the impediment would not be present. Thus De Smet, o. c., n. 659, and Marc, Th. M. II, n. 2033. But Prummer, Th. M. III, n. 824, does not admit this, because the consent of the spouses does not take away the injury inflicted upon matrimony.

XIX. Adultery with a promise of future matrimony without homicide induces a diriment impediment, when the adultery is consummated, and both the adulterer and the adulteress are conscious of the matrimony. Again, both the adultery and the promise ought to precede the death of the spouse, and the promise must needs be manifested by external signs and accepted; not nevertheless that it be mutual, nor according to many that it be sincere.

XX. Adultery with a matrimony of the present contracted induces a diriment impediment, if the preceding matrimony was valid, and both were conscious, and they in fact attempted to contract matrimony.

Titius, an unmarried man, was joined in the greatest familiarity with Caius and his wife Caia and, despising divine and human laws, had rather frequently committed adultery with Caia. Caius, seized by a grave illness, solicitous before death about his unworthy wife, summoned Titius to him and said that it would be most pleasing to him if Titius married the wife he was leaving. Titius promised that he would do this; afterwards, so that Caius might die peacefully, Titius and Caia, standing together at his bedside, promised him that they would enter marriage after his death. After the death of Caius followed, they renewed this promise and asked Paul, the parish priest, to proclaim the banns. When Paul discovered the aforesaid things in the examination of the betrothed, however, he was uncertain whether or not they were capable of marriage. Hence it is asked:

1. What is the impediment of crime, and by what law is it established?

2. Does ignorance excuse from incurring the impediment?

3. What conditions are required for the impediment from adultery and promise of marriage to be present?

4. What is to be said of the case?

1. What is the impediment of crime, and by what law is it established?

Crime is a diriment impediment of marriage established by ecclesiastical law by which those who are already married and commit adultery, homicide of spouse, or both together, with a third person, are made incapable of marrying that person even after the death of the spouse.¹

1 Manual of Moral Theology, vol. ii, 313.

2. Does ignorance excuse from incurring this impediment?

It probably excuses in the forum of conscience those who marry in ignorance of the impediment; ignorance can not be effectively pleaded in the external forum in favor of the validity of a marriage vitiated by this impediment.²

2 Ibid., 317.

3. What conditions are necessary for the impediment from adultery and promise of marriage?

The adultery must be real, formal, and complete. The promise must be real, accepted by the promisee, absolute, made with knowledge of the present marriage, and undertaking to contract marriage after the death of the other spouse. Both the adultery and the promise must have place during the continuance of the same marriage.³

3 Ibid., 314.

4. The case. There was no impediment of crime between the parties, so that Paul might marry them if there were no other obstacle. The promise of marriage had not the requisite conditions for producing the impediment. Titius promised Caius on his death-bed that he would marry Caia, and then both Titius and Caia promised him that they would marry each other after his death. When Caius was dead, Titius and Caia promised marriage to each other, but it could not then produce the impediment of crime.

In Canon 1075 of the new Code we read:

" Those cannot contract marriage validly who, during the existence of the same lawful marriage have committed adultery with each other and promised each other to marry, or have attempted marriage even though only civil marriage." The object of this law is thus described by Cardinal Gasparri in his book on Marriage:

" The Church has made the guilty parties incapable of marrying each other as a penalty for committing the crime, as a protection for the innocent spouse, and because such a marriage would be publicly scandalous and harmful. Doctors disagree as to which was the primary, which the secondary object of the Church; we are of opinion that the Church intended and obtained all those objects at one and the same time by this incapacity. What some say, viz., that this impediment is rather an incapacity than a penalty, or vice versa, is without meaning if the matter be examined more closely; for this impediment, like all the other diriment impediments, is an incapacity purely and simply; and yet the Church made it both as a penalty for crime and on account of the other objects indicated above, and so in truth this incapacity is a penalty."*