BIGAMIA. -
I. NOZIONI GENERALI
Con questo nome (etimologicamente: « doppia nuzialità ») si indicano, in teologia e in diritto canonico, vari fatti
The following species of b. are thus distinguished (whose notion, moreover, has undergone some slight variation over the course of the centuries):
a) true (or successive) b., that is, the fact of someone who, after having contracted a valid marriage, which then ceased through the death of the other spouse or for another cause of dissolution, contracts another, likewise valid one (in current law it is no longer necessary that the marriages have been consummated);
b) interpretative (or simultaneous) b., which occurs when someone, while still bound by marriage, abusively contracts another (in previous canon law this species of b. also included the case of one who contracted and consummated marriage with a woman already known by others, and of one who had marital relations with his own wife after she had committed adultery);
c) similitudinary b., which occurs when a person who has received major orders or has taken a solemn vow of chastity contracts, without dispensation, marriage and consumms II.
In civil legal terminology the name b. is used only to designate what in ecclesiastical language is now interpretative b. True or successive b. is relevant in canon law above irregularity (v.), that is, it entails a prohibition for the bigamist against receiving orders (can. 984, no. 4); and furthermore because second marriages have sometimes received unfavorable treatment, a trace of which still remains in cann. 1142-43 (v. MATRIMONIO).
Similitudinary b. irregularity (v.) (can. 985, no. 3), and constitutes a crime (can. 2388), which, however, is not usually designated by the name of b. (v. IMPEDIMENTI).
Finally, interpretative b. likewise produces an irregularity (v. can. 985, no. 3), and furthermore constitutes the crime properly called b. (can. 2356).
II. THE CRIME OF BIGAMY IN CANON LAW
Penalties against those who, while their own spouse is living, contract another marriage, are frequently found in the particular councils of the early centuries (cf., for bigamous women, the Council of Elvira, c. 300-24 AD, can. 8).From a decretal of Innocent III of 1199 (c. 4, X, I, 21), it appears that in canon law as well, at least the bigamous infamy (v.), a penalty established for this crime in Roman law (cf. D. 3, 2, 1, 13); this penalty subsequently remained always in force. Urban VIII, in the constitution Magnum of June 20, 1637, established corporal punishments for bigamists: perpetual condemnation to the galleys, and, in case of incapacity for that penalty, public flogging and perpetual imprisonment; in the most serious cases, handing over to the secular arm. But these penalties subsequently fell into disuse.
In recent centuries bigamists were in fact considered suspected of heresy. It should be noted that in any case there was no bigamy in the law prior to 1918 if the second marriage had not been consummated.
In the CIC (can. 2356) the crime of bigamy is provided for in two distinct forms, the second of which constitutes, with respect to the first, a progressive offense. The first occurs in the case of one who, bound by a valid marriage, consummated or not, contracts another marriage, even if in a form other than that prescribed, or in a civil ceremony alone; the other contracting party, if unmarried, will be guilty of bigamy (cf. can. 2209, § 2) only if he or she knows of contracting with a married person. The second form occurs when two persons who have committed the offense just described, and have been admonished by the Ordinary to put an end to their cohabitation, nevertheless continue to cohabit and have carnal relations (which, given the cohabitation, are presumed).
The penalties established for these two types of offense are: for the first, infamy latae sententiae (v. PENA ECCLESIASTICA); for the second, excommunication (v.) interdict (v.) (not however latae sententiae), according to the gravity of the deed. In the case of uncertainty regarding the validity of a marriage, although it is forbidden (by both natural and positive law: can. 1069, § 2) to contract another until one is certain of the nullity of the first, obviously whoever contravenes this prohibition cannot be considered a bigamist except when it is ascertained that the first marriage was valid; in previous canon law instead (by Benedict XIV's constitution Dei miseratione of Nov. 3, 1741, §§ 9, 11 and 14), the penalties established for bigamists were applied to those who, during the trial concerning the nullity of the marriage, contracted another one.
Finally, it should be noted that those guilty of bigamy, if before or after the crime (provided it was during the first marriage) they had carnal relations with each other, cannot subsequently (after the first marriage has ceased) regularize their position by means of a valid marriage except by prior dispensation: for there exists between them the impedimentum criminis (v. CHRISMON).
III. BIGAMY IN ITALIAN PENAL LAW
In all countries where monogamous marriage is in force, the State also considers bigamy a crime.In Italy, art. 556 of the current Penal Code punishes with imprisonment from one to five years "anyone who, being bound by a marriage having civil effects, contracts another, even though having civil effects," and furthermore "anyone who, not being married, contracts marriage with a person bound by a marriage having civil effects." Conviction for this crime entails the loss of marital authority (art. 162), and, if the penalty inflicted is at least three years, also temporary or perpetual disqualification, depending on the case, from public office (art. 29). A presupposition of the crime is that at least one of the two co-offenders 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 for the extinction of the crime (art. 556, third paragraph).
The elements of the crime are: the contracting of another marriage that has civil effects; and dolo, that is, the conscious will to contract a second marriage while still bound by the first. The law provides for a specific aggravating circumstance, which occurs when the offender has misled the other contracting party regarding their own or the latter's freedom of status: in such a case the penalty can reach up to six years and eight months of imprisonment (art. 556, second paragraph, and art. 64).
It should 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 perpetrated bigamy, provided no other cause of invalidity exists. If a cause of nullity (or voidability) of the second marriage exists, other than bigamy, the declaration of nullity or annulment based on such a cause has the effect of extinguishing the crime (art. 556, third paragraph).
The crime of bigamy, in addition to the two cases already mentioned, is extinguished by all the general causes for the extinction of a crime. But extinction by prescription (which as a rule takes place in ten years: art. 157) has a particular regulation for bigamy, since art. 557 makes the term run not from the day the crime is committed, but from the day one of the marriages is dissolved or the second marriage is declared null for bigamy. That is, the legislator, although (as appears from the preparatory works and as most doctrine and jurisprudence hold) considering bigamy not as a permanent crime, but rather as an instantaneous crime, albeit with permanent effects, has followed, as regards the running of the prescription period, the general rule for permanent crimes (cf. art. 158).