The bond of a previous marriage

576. Nature of the Impediment. 1. The impediment of bond consists in this, that a spouse bound by the bond of matrimony cannot enter valid matrimony unless the prior matrimony has first been duly dissolved: for one who has already handed over the right over his body to one person cannot hand over the same right to another unless the prior contract has been legitimately dissolved.¹

By the name bond is understood the matrimonial bond by which each spouse is bound to the other. This impediment was constituted so that the unity of matrimony may be preserved.

2. This impediment is founded on the dogma concerning the unity and indissolubility of matrimony. Wherefore it is of secondary natural law if the man attempts to enter another matrimony while his wife is still living; but if the wife attempts to enter matrimony while her husband is still living, the impediment is of primary natural law.

The Church has taught at every time that, while a prior matrimony exists, a new other matrimony cannot validly be entered, even if the second matrimony has been consummated and the first was only ratified. Wherefore it holds the second matrimony simply as concubinage, although a secular judge or religious sect has declared the first matrimony dissolved. But in the polygamy of infidels, the first wife is to be held as legitimate, unless the matrimony is shown to be invalid because of some diriment impediment.

¹ Matt. 19, 9. 1 Cor. 7, 39. Cn. 1069, 1: One invalidly attempts matrimony who is held by the bond of a prior matrimony, although not consummated, saving the privilege of the faith.

577. Certainty Concerning the Free State. 1. In order that a second matrimony can be licitly entered, it is required that it be established with moral certainty that the prior matrimony has truly been dissolved; nor is probability concerning the death of the spouse sufficient, however great it may be:¹ for it is not licit to expose a sacrament to danger of nullity outside a case of necessity. Wherefore a second matrimony entered without certain knowledge concerning the dissolution of the prior one is gravely illicit, but nevertheless valid if the prior matrimony has truly been dissolved.

2. Concerning the obtaining of this moral certainty several instructions of the Roman congregations have appeared,² from which these things are had:

a. The long absence of one spouse does not suffice, nor mere report concerning that person's death, nor the affirmation of one witness, unless he is above every exception and his testimony is confirmed from the circumstances. But positive and legitimate proof is required, such as ordinarily is either an authentic document or, if this cannot be had, the testimonies of two witnesses who are above every exception.

b. Extraordinarily, proof by indications is also admitted, which, taken together, suffice for obtaining moral certainty; relying on these, the ecclesiastical judge authentically declares the death of the spouse.

If the death of the spouse occurred in the very parish in which the second nuptials are celebrated, testimony is not required, since the matter concerns a fact publicly known. But if the spouse died in another place, the authentic testimony of the parish priest of the place where the death occurred is required. This testimony must be furnished with the parochial seal, and if it must be acquired from a distant diocese, also with the seal of the episcopal curia.³ If authentic testimony of this sort cannot be obtained, the matter no longer pertains to the parish priest, but must be referred to the ordinary. What must be done in this case is taught by the cited instruction of the Holy Office.

If a spouse in good faith contracted a new matrimony while the other party was still living, this matrimony, after the death of the other party has actually followed, does not become valid of itself, but consent must be renewed.

¹ Cn. 1069, 2: Although the prior matrimony is invalid or dissolved, it is not therefore licit to contract another before the nullity or dissolution of the prior one has been legitimately and certainly established.

² Instruction of the Holy Office (1870) for proving the death of some spouse; instruction of Clement X, August 21, 1670, which prescribes procuring full certainty concerning the free state of the contracting parties. Cf. Acta S. Sedis VI, p. 436 ff.

³ In order that matrimony be held valid in the civil forum, in Austria (G. A. n. 112 ff.) testimony of the civil authority concerning the death of the spouse is required; before this testimony has been obtained, the parish priest cannot proceed to the nuptials. Although this civil testimony does not suffice in the ecclesiastical forum, nevertheless the ecclesiastical judge can be assisted by it.

One who is already married cannot validly contract a second marriage unless the former bond is dissolved by one of the means described above, or by the death of the other spouse. Previous marriage, then, is a diriment impediment of a second marriage as long as it subsists, by the law of nature and by positive divine law. This impediment, therefore, binds all men, whether Christian or heathen. It is not lawful for one who has been married before to contract a second marriage, unless there is certain proof that the first marriage has been dissolved by lawful authority or by the death of the former spouse (Can. 1069).

If the decease is proved by a certificate of death or some similar authentic document, or by two witnesses who are above suspicion, or by any other legitimate means, the parish priest may allow the second marriage. If, however, there is no certain - proof to be had, and it is doubtful whether the party in question is free to marry, the case must be referred to the bishop, who will investigate the circumstances, and if any prudent doubt remain he will not allow the second marriage without consulting the Holy See. Sometimes in special circumstances the Pope allows a second marriage, even when strict proof of the death of the former spouse is not obtainable, as he did in the case of the wives of the Italian soldiers who perished in the battle of Adoua.¹

¹ S.0., July 20, 1898.

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 cannot 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 anyone 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.

English law enforces this impediment, but if a former spouse has not been heard of for seven years or more, it will not punish the other party as guilty of bigamy if he marries a second time, although he must separate if the former spouse appear subsequently.

1. Sabinus, wishing to contract marriage, asks the confessor whether he can effect this. The reason for his doubting is his natural debility, by force of which, although he himself can pour forth seed, nevertheless he experiences no erection. Without any hesitation the confessor responds affirmatively, because, he says, on the authority of many and grave theologians, it suffices that seed can be poured forth at the mouth of the vagina, which Sabinus can certainly accomplish.

It is asked: What is to be said to the case?

R. The confessor's undoubting response does not seem to be approved. For Sabinus first does not seem able licitly to contract marriage. For the wife could be wholly unwilling as to that imperfect mode of coming together. Then also, once marriage has been contracted, scandals can easily arise. For, with that imperfect mode of coitus standing, if dissensions arise between the spouses, they will immediately seek divorce, and will institute a lawsuit, and will introduce the cause from the head of the impotence of the man, as is evident from the fact itself. But neither does he seem able validly to enter marriage. For Sabinus labors under the impediment of impotence, which is called the impediment of frigidity. For this impediment, in impotence, is not in the impotence of generation, nor is it in the impotence of pouring forth seed, but it is in the impotence of coition, as is to be seen through almost the whole title de Frigidis et Maleficiatis. The impediment of impotence surely exists when there is impotence for consummating marriage. But then marriage is properly said to be consummated when it is established that copula sufficient for generation has intervened, as the S. C. C. teaches in the Nuscana marriage case, Sept. 11, 1880. Where, therefore, impotence is had for accomplishing that copula, an impediment is had to the marriage itself. Most clear on this matter is the doctrine of St. Thomas: "Although the act of carnal copula is not of the essence of marriage, nevertheless potency for this is of its essence, because through marriage there is given to each spouse power over the body of the other with respect to carnal copula." 4, D. 34, q. 1, a. 2, ad 1. Hence the Angelic Doctor then concludes, ibid. ad 6, that with respect to the impediment of marriage "the same judgment is to be made concerning the narrowness of the woman and the frigidity of the man," namely, because of impotence of coition in both cases.

2. Fabia, wishing to contract marriage with Fabius, asks her confessor whether she can; for she has purposely undergone the excision of an ovary, namely, so that, after marriage is then entered into, she may not have children. There is no difficulty, says the confessor. And he responds thus because he judges that marriage pertains also to the mutual assistance of life and to restraining concupiscence. D'Annib., p. 3, n. 431, note 9, ed. 3. Nevertheless the parish priest raises a difficulty, and requires the attestation of a surgeon, by which it may be established that generation is not physically impossible, with attention to the manner in which that excision of the ovary was accomplished. And when Fabia did not acquiesce in this decision, the matter was brought to the bishop, who wholly approved the decision of the parish priest.

It is asked: What is to be said to the case?

R. Certainly the most prudent manner of acting of the parish priest and the decision of the bishop are to be approved. For if it is established that the ovaries were altogether perfectly excised, so that generation is physically impossible, marriage is impossible. But otherwise, if that excision was wholly imperfect, of part of an ovary or of only one ovary. Likewise it is impossible that marriage be also for mutual assistance of life and for quieting concupiscence, unless it is marriage. But marriage is essentially a conjunction in order to offspring. Hence Augustine, praised by the Angelic Doctor, "says against Faustus that a woman ought not to marry for any other thing, except that she be a mother." But where offspring is physically impossible, conjunction in order to that offspring is impossible. S. Th., 3 p., q. 75, a. 2, apud Cajetan. Likewise from the same Angelic Doctor, apud the same Cajetan, q. 76, a. 1, the conjunction which is the sacrament in marriage is a conjunction which is for the office of nature. A conjunction which would not be for the office of nature cannot be marriage as a sacrament, and therefore neither a remedy of concupiscence. And once the office of nature has been excluded, neither can the assistance of life be had in a wife, namely such as nature itself intends. "Woman was made principally for this, that she might be a help to man for offspring; but man was not made for this." S. Th., ib., q. 75, a. 2, ad 1. And in the Council of Florence, Decree for the Armenians, marriage as sacrament is said to have been instituted by Christ Our Lord so that the Church may be CORPOREALLY INCREASED through it. Once the physical possibility of offspring has been excluded, and, on the contrary, the physical impossibility of offspring established, how can it any longer be true that this sacrament IS ORDERED TO THE MULTIPLICATION OF THE CHURCH, as the same Council of Florence has it? I. M. 994, 995.

3. "1. A certain woman, after she had waited in vain for two or three years for the return of her husband, was united in marriage to another man, notwithstanding the admonitions which the missionary made to both; now the second husband of this woman, repenting of the deed, would wish to leave her and pass to other vows. - 2. Another woman, since she also had waited in vain for the return of her husband, after three years, judging that he was already dead, in good faith joined herself in marriage to another man; and since it is now impossible to investigate whether the first husband is still living or is in reality dead, it is asked whether she herself can be left in the use of the second marriage contracted until certainty is had concerning the life of the first husband?"

R. The Holy Office, March 24, 1865, responded: "As to the first, that the spouses are to be separated, and that the man cannot enter second nuptials until it is morally certain that, at the time when he himself entered marriage with the woman in question, the first husband of that same woman had already died. As to the second, that they are to be left in good faith." Cf. E. M. 996.

4. There is a husband who, after 14 years, has not yet been able to have information concerning his wife. Can he enter other nuptials?

R. Negatively. "A lapse of time, of whatever length, is not sufficient for spouses to be permitted to enter new nuptials, unless first it has been established with moral certainty that the former spouse has died, as from c. In praesentia 19, de Sponsalibus." S. C. de P. F., Apr. 21, 1788; Collect. n. 1365, 1366, 1368; I. M. 996.

833. • By prior bond is understood the bond of matrimony by which spouses are so bound to one another that, while both are living, neither can enter a valid matrimony with any other person.

The impediment of prior bond is founded upon two attributes of matrimony, which are indissolubility and unity. Hence it is deduced that the impediment of prior bond is of divine law.

834. Resolutions. - 1. One who in good faith believes that a spouse is dead when in fact the spouse is living, and proceeds to other nuptials, does not indeed sin, but contracts invalidly and is bound to return to the prior spouse when that spouse appears.

2. Therefore, for entering a new matrimony, the absence alone of the spouse, however great it may be, does not suffice; rather, certain and authentic proofs of death are required ¹. - Thus from Canon law, canon In praesentia 19, On Betrothals.

¹ Concerning these indications or proofs, see Schmalzgrueber, book 4, title 21, nos. 10-11.

3. The moral certitude required by law is not obtained through even a public rumor unless it is supported by some positive proof, nor through a single witness unless other indications are present, concerning which it belongs to the Bishop alone to judge. Hence in doubt recourse must always be had to the Bishop ². But while the doubt remains, he cannot permit the celebration of the matrimony. Nevertheless, the matrimony which would be celebrated in such doubt would be valid, although gravely illicit, if the spouse concerning whose death doubt existed were in fact dead.

² Giraldi, on chapter In praesentia 19, On Betrothals, perhaps too harshly requires that recourse be had to the Ordinary if there is legitimate proof only through witnesses, as though that moral certitude which, according to the opinion of all, suffices could not be had in this manner.

113. • I. Notion.

"He invalidly attempts matrimony who is held by the bond of a prior matrimony, although not consummated, saving the privilege of faith." (Can. 1069, § 1.)

It is a corollary of those things which we said concerning the two properties of matrimony, namely unity and indissolubility, chap. I, art. II, §§ 1 and 2.

114. • II. Nature of the impediment.

This impediment is of divine law, and therefore altogether indispensable. Yet remember the exceptions explained above, with respect to the not perfect indissolubility of matrimony ratified only and of matrimony contracted in unbelief, nn. 11-14.

115. • Concerning proving the free state.

a) In order that it be licit to contract a new matrimony, moral certitude is required concerning the dissolution or nullity of the prior marriage. (Cf. Can. 1069, § 2.)

b) In even a slight doubt it is necessary that an authentic declaration of the Ordinary or of the Holy See be obtained concerning the death of the spouse or concerning the invalidity of the prior matrimony.

c) Permission to pass to other nuptials includes dispensation from the impediment of crime on account of adultery alone with permission of matrimony, if a license of this kind emanates from the Holy See, but not if from the Ordinary.

116. • IV. Penalties against violators of this impediment.

One who in bad faith attempts a new matrimony, the prior matrimony not having been dissolved, incurs these penalties:

a) Infamy by the fact itself (can. 2356).

b) Irregularity from delict (can. 985, 3°).

c) Privation of the sacraments and, if he dies without signs of penitence, of ecclesiastical burial, as being a public sinner.

d) Excommunication or personal interdict to be imposed against him by the Ordinary if, having spurned his warning, they persist in illicit cohabitation. (Can. 2356.)

S. Th., Suppl., q. 65, a. 1.

881. The impediment of bond or ligamen (lien conjugal; bestaande huwelijksband) consists in this, that a spouse is incapable of entering a new matrimony while the bond of the prior one endures; therefore it is the very bond of the prior matrimony, whether consummated or non-consummated, by which one spouse is so bound to the other that, while that bond endures, he cannot enter matrimony with any other.

For this impediment two conditions are required:

1° That the prior matrimony be valid, whether it has been consummated or not consummated.

2° That the bond of the prior matrimony has not been legitimately dissolved, which happens by death, and can happen by solemn religious profession and pontifical dispensation for non-consummated matrimony, and, for consummated matrimony, by the Pauline privilege, namely of departing from the unbelieving party, if this is necessary in favor of the faith.

882. Principle. He who is held by the bond of a prior matrimony invalidly attempts matrimony, although it was not consummated, saving the privilege of the faith. - Thus can. 1069, § 1.

The impediment is of natural and divine law, which diriments matrimony to be contracted. For he who has handed over the right over his body to one person cannot hand over the same right to another, unless the prior contract has been legitimately dissolved. It is founded in the essential properties of matrimony, namely unity and indissolubility; and it also binds unbelievers.

Hence: 1° He who, in good faith thinking the other party dead while that party is still living, passes to other nuptials, contracts invalidly, although he does not sin; nevertheless offspring received from the second union is reputed legitimate (can. 1114).

2° On the contrary, one thinking the other party who is dead to be still living sins gravely when he enters a new union, although this can be valid, according to what was said n. 808, 2.

3° He who after contracting other nuptials discovers that the prior spouse is still living must separate himself from the second spouse, even if he has begotten offspring with that spouse and grave evils are to be feared from the separation, because the second nuptials are certainly null. And of himself he is bound to return to the prior spouse, unless a just cause of separation is given.

883. Practical corollary. - "Although the prior matrimony is invalid or dissolved from any cause whatever, it is not therefore licit to contract another before the nullity or dissolution of the prior one has been legitimately and certainly established," can. 1069, § 2; otherwise the matrimony is exposed to the danger of nullity, and the contracting parties to the danger of adultery.

a) It must be established certainly; therefore probability or verisimilitude does not suffice, nor a fortiori doubt or ignorance arising from the fact that the spouse after departure has sent no message; but true moral certitude is required.

b) It must be established legitimately; therefore in even a slight doubt there must be obtained an authentic declaration of the Ordinary or of the Holy See concerning the death of the spouse, or concerning the invalidity or legitimate dissolution or dissolubility of the prior matrimony. 1

884. Penalties against violators of the impediment acting in bad faith are noted in can. 2356: "Bigamists, i.e., those who, with a conjugal bond standing in the way, have attempted another matrimony, even only a civil one, as they say, are by the fact itself infamous; and if, after the admonition of the Ordinary has been scorned, they persist in illicit cohabitation, let them, according to the diverse gravity of guilt, be excommunicated or punished by personal interdict," namely by a sentence to be brought.

1. Concerning the mode by which the death of a spouse or the nullity of matrimony must be established, cf. decree of the Holy Office, Apr. 27, 1887, with instruction May 13, 1868; response July 20, 1898; and response of the interpreting commission, Oct. 16, 1919. Let it be noted that license to pass to other nuptials includes dispensation from the impediment of crime on account of adultery alone, even if a license of this kind was conceded by the local Ordinary (can. 1053 and its interpretation by the Commission for the Interpretation of the Code, March 26, 1952).