BIGAMY. —
I. GENERAL NOTIONS
By this term (etymologically: “double marriage”) are indicated, in theology and canon law, various facts or situations that presuppose two marriages or one marriage and an act assimilated to II.Thus the following species of bigamy are distinguished (though their notion has undergone some slight variation over the centuries):
a) true (or successive) bigamy, namely the act of one who, after contracting a valid marriage, and this marriage having then ceased either through the death of the other spouse or through another cause of dissolution, contracts another valid marriage (in current law it is no longer necessary that the marriages be consummated);
b) interpretative (or simultaneous) bigamy, which occurs when someone, though bound by a marriage, unlawfully contracts another one (in earlier canon law this species of bigamy also included the case of one who contracted and consummated marriage with a woman already known to another, and of one who had marital relations with his own wife after she had committed adultery);
c) similitudinary bigamy, which occurs when a person who has received major orders or has taken a solemn vow of chastity contracts marriage without dispensation and consummates II.
In civil legal terminology the name of bigamy is used only to designate what in ecclesiastical language is now called interpretative bigamy. True or successive bigamy is of relevance in canon law above all because it constitutes an irregularity (q.v.), i.e. it entails a prohibition for the bigamist to receive orders (can. 984, n. 4); and moreover because second marriages have sometimes been treated unfavorably, a trace of which remains even now in cann. 1142–43 (q.V. MATRIMONY).
Similitudinary bigamy likewise produces an irregularity (q.v.) (can. 985, n. 3), and constitutes a delict (can. 2388), though it is not usually designated by the name of bigamy (q.v.; see also IMPEDIMENT).
Interpretative bigamy likewise produces an irregularity (q.v.; can. 985, n. 3), and moreover constitutes the delict properly called bigamy (can. 2356).
II. THE DELITCT OF BIGAMY IN CANON LAW
Punishments against those who, while their spouse is still living, contract another marriage are often found in the particular councils of the early centuries (cf., for women bigamists, the Council of Elvira, c. 300–24, can. 8).From a decretal of Innocent III of 1199 (c. 4, X, I, 21) it appears that in canon law too the bigamist was considered struck by infamy (q.v.), a penalty established for this delict in Roman law (cf. D. 3, 2, 1, 13), at least the male bigamist; this penalty then remained in force. Urban VIII, in the constitution Magnum of 20 June 1637, established for bigamists material penalties: perpetual condemnation to the triennium, and, in case of incapacity for such a penalty, public flogging and perpetual imprisonment; in more serious cases, delivery to the secular arm. But these penalties then fell into disuse.
In recent centuries bigamists were in fact considered suspect of heresy. It is to be noted that in no case was there bigamy in the law prior to 1918 if the second marriage had not been consummated.
In the CIC (can. 2356) the delict of bigamy is envisaged in two distinct figures, the second of which constitutes, with respect to the first, a progressive offence. The first occurs in the case of one who, bound by a valid marriage, whether consummated or not, contracts another marriage, even if in a form different from that prescribed, or merely in a civil rite; the other contracting party, if single, will be guilty of bigamy (cf. can. 2209, § 2) only if he knows that he is contracting with a married person. The second figure occurs when two persons who have committed the offence just described, and have been warned by the Ordinary to put an end to their cohabitation, nevertheless continue to cohabit and to have carnal relations (which, given the cohabitation, are presumed).
The penalties established for these two species of offence are: for the first, infamy latae sententiae (q.V. ECCLESIASTICAL PENALTY); for the second, excommunication (q.v.) or personal interdict (q.v.) (not however latae sententiae), according to the gravity of the act. In case of uncertainty about the validity of a marriage, although it is forbidden (both by natural and positive law: can. 1069, § 2) to contract another until one is certain of the nullity of the first, evidently one who contravenes this prohibition cannot be considered a bigamist unless and until it is ascertained that the first marriage was valid; in earlier canon law, however (according to the constitution Dei miseratione of Benedict XIV, 3 Nov. 1741, §§ 9, 11 and 14), those who during the trial on the nullity of a marriage contracted another were liable to the penalties established for bigamists.
It is to be noted finally that those guilty of bigamy, if before or after the delict (provided it was during the first marriage) have had carnal relations with each other, cannot afterwards (after the first marriage has ceased) regularize their position by a valid marriage without a dispensation: for them there exists in fact the impedimentum criminis (q.V. CHRISMON).
III. BIGAMY IN ITALIAN CRIMINAL LAW
In all countries where monogamous marriage obtains, the State too considers bigamy a crime.In Italy art. 556 of the current Penal Code punishes with imprisonment from one to five years “whoever, being bound by a marriage having civil effects, contracts another, likewise having civil effects, and moreover ‘whoever, not being married, contracts marriage with a person bound by a marriage having civil effects.’” Conviction for this crime entails loss of marital authority (art. 162), and, if the penalty inflicted is at least three years, also temporary or perpetual disqualification from public offices (art. 29). A presupposition of the crime is that at least one of the two accomplices is bound by a marriage having civil effects, even if it is a null or voidable marriage (unlike what we have seen to be the case in current canon law). However, the declaration of nullity or the annulment of such a marriage is a cause of extinction of the crime (art. 556, third paragraph).
Elements of the crime are: the contracting of another marriage having civil effects; and dolus, i.e. the conscious will to contract a second marriage while still bound by the first. The law provides a specific aggravating circumstance, which occurs when the guilty party has induced the other contracting party into error about the freedom of his or their status: in such a case the penalty may reach up to six years and eight months imprisonment (art. 556, second paragraph, and art. 64).
It is to be noted that the second marriage will be invalid if the first is valid; whereas, if the first is invalid, the second is valid, despite the perpetual bigamy, provided there does not exist another cause of invalidity. If there exists a cause of nullity (or voidability) of the second, different from bigamy, the declaration of nullity or the annulment, based on such a cause, has the effect of extinguishing the crime (art. 556, third paragraph).
The crime of bigamy, besides in the two cases already mentioned, is extinguished by all the general causes of extinction of crime. But extinction by prescription (which normally takes place in ten years: art. 157) has a special discipline for bigamy, since art. 557 makes its term run not from the day on which the crime is committed but from the day on which one of the marriages is dissolved or the second is declared null for bigamy. That is, the legislator, although (as appears from the preparatory works and as is held by the majority of doctrine and jurisprudence) considers bigamy not as a continuing crime but as an instantaneous crime, albeit with permanent effects, has followed, as regards the running of the term of prescription, the general rule for continuing crimes (cf. art. 158).