Murder of a Consort

Murder by a man and a woman of the spouse of one of them constitutes a diriment impediment to their marriage. This impediment does not arise unless death really ensues; attempted murder is not sufficient. Moreover, the murder must be committed not by one of them alone, even if the other afterward approve of it, but by both, either by mutual physical help, or by moral persuasion of some sort. Death must also be inflicted with the intention of marrying the other when free, as Doctors gather from the end of the law, which is to prevent murder of a consort with a view to marrying someone else. This intention must at least be manifested in some way to the other party, though it is not necessary that it should openly actuate both of them to the perpetration of the crime.

Canon 1075, 3° states: "They cannot validly contract marriage who by mutual physical or moral cooperation, even without adultery, have brought death upon a spouse." Therefore there are required:

I. Cooperation or plotting of the spouse's death, and that mutual. It is the same whether each party has influenced the death physically or morally, or one physically and the other morally. Therefore command, persuasion, and approval also suffice, but not approval of spouse-murder already perpetrated. There are also those who judge that simple consent to spouse-murder to be perpetrated does not suffice, because the word moral cooperation is not sufficiently verified;¹ others, however, think otherwise for the contrary reason.

II. Cooperation or plotting done from the intention of marrying, and indeed marrying the accomplice. For although the aforesaid condition is not expressed in the law, nevertheless it is gathered from the end of the law, namely lest one come to spouse-murder through hope of marriage with the accomplice (St. Alphonsus VI, 1033). But:

It is disputed, first, whether the aforesaid intention must be in each of those plotting. Most deny this, because the end of the law consists in this: that the occasion of plotting against the life of the legitimate spouse be removed. That occasion is sufficiently taken if even one of those plotting had, in the plotting, the intention of marrying the accomplice. The Austrian Instruction, § 37, openly favors this opinion. A few affirm it, because just as each must cooperate in the spouse-murder, so almost consequently it seems required that each come to the crime through hope of marriage. The pastoral Instruction of Eichstatt seems to favor this opinion.

It is disputed, secondly, whether the intention of marrying must be manifested to the other party before the spouse-murder. Now this is affirmed with sufficient probability, because otherwise that intention would not influence the fact that the mutual plotting was done through hope of marriage. But the manifestation can be made both by words and by gifts, familiarities, and similar things (St. Alphonsus VI, 1034).

III. Death must have followed, and indeed from the plotting set forth. It does not suffice that death, although attempted, followed, for example, from the negligence of the wounded person, or from the inexperience or lack of care of the surgeon.

Question 1. How is the impediment of crime multiplied?

Response. It is multiplied: 1° if one of the species of the impediment is verified with regard to several marriages;² 2° if several species of the impediment are verified with regard to one marriage,³ although some judge that in the case in which promise and attempted marriage concur with adultery, there is added only a circumstance to be expressed, but the impediment is not multiplied; 3° if several species of the impediment are verified with regard to several marriages;⁴ 4° if, with adultery concurring to constitute the impediment, each party is married,⁵ although some again judge that in this case there is added only a circumstance to be expressed, but the impediment is not multiplied.

Question 2. To what extent are infidels bound by the impediment of crime?

Response 1. If each accomplice is an infidel, the impediment does not arise, even if they are afterwards converted.⁶

Response 2. If one accomplice is a faithful person and the other an infidel, the impediment arises if the faithful person also posited those things which are required for the impediment. Therefore the first species of the impediment arises if the faithful person, marriage having been promised, commits adultery with the infidel; the second species, if the faithful person commits adultery and attempts marriage with the infidel; the third species, if the faithful person perpetrates the killing; the fourth species, if the faithful person was a participant in the plotting (St. Alphonsus VI, 1037).

Response 3. If one of the requisites for the impediment had place in infidelity, and the other after Baptism, the impediment does not arise. Except if the promise or attempted marriage happened in infidelity, but the parties after Baptism persevere in it and commit adultery.

Question 3. To what extent can a dispensation be obtained in the impediment of crime?

Response. A dispensation, when a proportionate cause is present, is granted. Nevertheless, if the impediment arises from public spouse-murder, whether one or both plotted, outside danger of death dispensation can scarcely be hoped for.⁷

Note. A dispensation given by the Holy See upon a ratified and non-consummated marriage, or permission made for passage to other nuptials because of the presumed death of a spouse, always carries with it dispensation from the impediment arising from adultery with promise or attempted marriage, if any such is needed, but by no means dispensation from the impediment of which canon 1075, nn. 2, 3 treats, that is, from the impediment of crime of the third and fourth species (canon 1053).

Warning. "Suspicion of an impediment contracted can sometimes be moved by those who during the prior marriage committed adulteries; who a little after the death of the prior spouse fly to second nuptials, especially if the prior spouse was sick for a long time before death; a male servant who is about to enter marriage with his recently widowed mistress; or a recently widowed man who is about to contract marriage with his female servant or with his wife's sister, etc.

With regard to the manner of inquiring, one must proceed cautiously. Concerning occult adultery, it can be asked, for example, whether he already had familiarity with that person while the prior spouse was living; whether he ever indulged too much familiarity with her. If adultery had place with her, let him be asked further whether already then there was speech between them about a future marriage, etc. Concerning occult spouse-murder, it can be asked whether he at any time desired the death of the prior spouse; whether he gave any cause for that person's death. From the responses a prudent confessor will easily detect guilt or innocence."⁸

¹ So, for example, d'Annibale, III, § 447.

² For example, Peter first, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then, while his marriage with Bertha stands, he again promises marriage to Titia and commits adultery with her.

³ For example, Peter, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then he kills Anna.

⁴ For example, Peter, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then he kills Anna. The same Peter, while his marriage with Bertha stands, again promises marriage to Titia and commits adultery with her; then he kills Bertha.

⁵ For example, Peter and Titia, being married, mutually promise marriage to each other and commit adultery.

⁶ Sacred Congregation of Propaganda Fide, August 23, 1852, ad 5 (Collectanea, n. 1079).

⁷ Benedict XIV, Constitution Pastor Bonus, April 13, 1744.

⁸ Aertnys-Damen, II, n. 745.

900. Principle IV. Those cannot validly contract matrimony who by mutual physical or moral action, even without adultery, have brought death upon a spouse. - Thus can. 1075, 3°.

The conditions required for incurring the impediment are:

A. On the part of the plotting, mutual conspiracy, so that, namely, each has plotted the killing of the other's spouse.

Hence ratihabition or approval of a killing perpetrated by the other does not suffice.

B. On the part of spouse-murder, the death of a true spouse truly having followed from the cooperation of each accomplice, whether physical or moral.

Nevertheless it is not required that they cooperated by the same positive action, but it suffices that one counsel or consent to the other physically acting; indeed even if neither cooperates physically, but each only morally and through another, e.g., by mandate or efficacious counsel, causes the death.

C. On the part of the end, that it be done from the intention of entering matrimony with the accomplice.

For the end of the law is lest anyone kill his own or another's spouse in hope of matrimony. Therefore it is required that at least in one accomplice there be the intention of matrimony and that it be manifested to the other; which is presumed in the external forum.

901. Observations. - 1. The impediments are of ecclesiastical law; hence the Church can dispense in them. Nevertheless she very rarely dispenses in the impediment of abduction and not unless the free consent of the woman is established, concerning which, so that it truly be emitted freely, it will belong to the pastor to take care; likewise in spouse-murder by one or both plotting, especially public. In adultery alone dispensation is more easily given, for avoiding scandal; indeed, in a dispensation over ratified non-consummated matrimony, and in the permission given by the Supreme Pontiff - not likewise by the Ordinary - to pass to other nuptials on account of the presumed death of the spouse, there is implicitly contained a dispensation over this impediment, but not from others (can. 1053).

When danger of death urges, for a grave cause, dispensation is conceded over all.

2. Unbelievers are not subject to these impediments while they contract among themselves, even if afterward they are converted, unless the civil law established the same thing. But if one party is faithful and contracts the impediment, the unbeliever is indirectly reached by the impediments: thus not only for abduction, because the law renders the abductor and abducted incapable; but also for crime, provided the faithful party fulfills all the conditions required for the impediment, but not if the unbeliever alone did it. Thus, for example, if a faithful person, matrimony having been promised, committed adultery with an unbeliever, or if he perpetrated the killing, or was a participant in the plotting.

3. Ignorance of the impediments, as of irritating or incapacitating laws, does not excuse from them; which now, on account of can. 16, § 1, is altogether certain, even concerning crime, concerning which before the code there was dispute.

4. The impediments can be multiplied, the cause of another impediment being multiplied. Thus:

a) by reason of a diverse crime against the same matrimony, as if to adultery with promise of matrimony there is added an attempt of this matrimony or spouse-murder;

b) also by reason of multiple matrimony, as if both are married and commit adultery or each kills the spouse; or if one successively enters two unions and during each commits adultery with a third person, promising matrimony to that person.

But they are not multiplied from the same delict numerically multiplied against the same matrimony.

5. In practice: If the impediment of abduction should cease, nevertheless the pastor should not assist at the matrimony without consulting the Ordinary, to whom it will belong to judge whether it has truly ceased and whether the woman is in a safe and free place. But concerning the impediment of crime the pastor or confessor should not inquire unless a prudent suspicion is present; those are suspect who in the time of a prior matrimony fell into adultery, and those who after the death of the spouse without delay pass to new nuptials with a person belonging to the house or family, especially if the prior spouse before death had been sick for a long time. To investigate this, one can prudently ask: whether, while the prior spouse was living, he already had association with that person, or acted too familiarly, whether he much desired the nuptials, whether he had become weary of the prior spouse, wished for that spouse's death, gave any cause to that spouse's death, etc.

XVIII. Homicide without adultery induces a diriment impediment when a man and a woman conspire in a machination for the death of the wife or of the husband, with the intention that, death following, they may enter upon matrimony. And it is required that death in fact follow.

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."*