CRIME, IMPEDIMENT TO — I. Adultery and the consummated murder of a spouse, as contemplated by the 1917 Code of Canon Law (CIC) respectively in cann. 2317 § 2 and 2354, constitute the foundational elements of a specific matrimonial impediment, precisely termed the impedimentum criminis. This may be defined as the incapacity to contract a valid marriage between those who, under certain conditions, have become accomplices in the crime of adultery or murder.
In fact, it is not mere complicity in adultery or spousal murder that gives rise to the impediment, but only that complicity in which the two crimes are accompanied by other determinate elements and peculiar circumstances foreseen by the law.
The impedimentum criminis underwent a long evolution, during which grave considerations of matrimonial morality were gradually incorporated into the juridical order and definitively fixed by a general norm.
First, Justinian sanctioned the nullity of the marriage of two accomplices in adultery (Novella 134, cap. 12). The Church, which in the early centuries applied to adultery the discipline of public penance without establishing a specific impediment, canonized Justinian’s legislation in the East, while in the West the penitential system continued, so that two adulterers, having performed their penance and the spouse having died, could validly contract marriage between themselves. Later, with the decline of the penitential system, the concept of a specific impediment also took hold in the West when adultery was qualified, and precisely at the Council of Meaux (845) adultery appeared as an impediment when it was accompanied by spousal murder (cf. Decree of Gratian, c. 5, C. XXXI, q. 1). At this point, however, the departure from the penitential system was not clear-cut, since after a period of penance the marriage could still be validly contracted. It was at the Council of Trier (895) that there first appeared the establishment of a true and proper impediment in adultery with a promise of marriage to be celebrated after the death of the innocent spouse (c. 4, C. XXXI, q. 1). Clement III (1181–98) added the figure consisting in adultery with an attempt at marriage (c. 4, X, 4, 7), and finally a fourth species consisting in spousal murder contrived by both parties without adultery (c. 1, X, 3, 33). The impediment, transmitted in this form by the Decretals, reached the 1917 Code without substantial modification, where it is treated in can. 1075 according to the four aforesaid figures:
1) adultery with a promise of marriage;
2) adultery with an attempt at marriage;
3) adultery with spousal murder perpetrated by one party;
4) spousal murder contrived by both parties.
Although, by natural law, in the marriage of two persons who have become accomplices in the crimes of spousal murder or adultery, there must be recognized a most grave impropriety and unfitness, nevertheless natural law alone does not render the marriage invalid, inasmuch as such a union does not essentially contradict the nature or ends of marriage itself. Therefore, the impediment, in its entire scope, is established by human law. The Church, in constituting this impediment, wished to safeguard conjugal fidelity and the safety of spouses (for, once the possibility of contracting marriage with the accomplice in spousal murder or qualified adultery is removed, there is one less motive for committing such crimes), as well as to punish delinquents who have thus gravely injured both the innocent spouse and marriage itself.
The impediment, precisely because it is of purely canonical origin, does not apply to the unbaptized, although these may be subject to incapacity when such is imposed by civil legislation. Even if two unbaptized persons (or one of them) receive Baptism after having committed, while still unbaptized, the criminal acts mentioned above, the impediment would not arise; likewise, it would not take effect when, although two elements are present (e.g., adultery and a promise of marriage), one of them occurred before Baptism and the other after, provided that the impediment’s requisites are not fulfilled. On the contrary, if a baptized person commits the acts foreseen by the impediment with an unbaptized person, the incapacity would arise, since the impediment directly affects the baptized party and thus indirectly the unbaptized party as well.
For all the figures of impediment foreseen by can. 1075, it is essential that the two accomplices injure, through their criminal activity, the same marriage. Therefore, it is necessary that at least one of the accomplices be bound by a valid canonical marriage, nor would a merely contractual marriage suffice, since one cannot injure what does not exist; that the acts foreseen by the impediment be committed while the same marriage endures; and that the criminal acts be perpetrated with true formal guilt on the part of both accomplices. Keeping these essential principles in mind, we now proceed to examine the four figures of the impediment, without forgetting that in judging the various elements of the crimes, the norms governing the interpretation of penal laws must be applied.
II. The first figure is set forth by the CIC in the following terms: “Those cannot validly contract marriage who, while the same legitimate marriage endures, commit adultery between themselves and mutually promise each other marriage” (can. 1075, n. 1). The essential elements for the impediment to arise in this case are two: adultery and a promise of marriage. As regards the first, it is necessary that true adultery be committed, which requires that at least one of the two persons between whom carnal relations occur be bound by a valid canonical marriage (it does not matter if it is not yet consummated).
Canonists, basing themselves on the letter of the law (“adulterium inter se consummatur”), require that the adultery be perfect, i.e., consummated by perfect intercourse (though perfect intercourse is always presumed when relations have taken place); so that, if it could be proven that such was not the case (although in the moral sphere the irregularity of sexual relations increases their sinfulness), the impediment would not arise. Moreover, both adulterers must have knowledge of the existence of the same (at least one) valid marriage (formal adultery on both sides); which would not be the case, e.g., if one of the two, not being married, were unaware that the other is married.
With regard to the second element, namely the promise of marriage, a true promise is required (not a mere desire or unilateral intention), serious (not feigned, though in the external forum proof would be required), pure (i.e., absolute, not conditional), externally manifested, and mutual (i.e., proposed by one party, accepted, and reciprocated by the other), free (not vitiated by error, fear, or deceit), with knowledge in both of the existence of the same valid marriage. It is understood that such a promise must have as its object the marriage to be celebrated, in the prescribed form, between the two adulterers when the innocent spouse has died.
The two elements (adultery and promise) must occur during the subsistence of the same marriage (though the time elapsed between the two elements is irrelevant): thus, there would be no impediment if one of the aforesaid elements occurred while a given marriage existed and the second during the existence of another marriage. It is also immaterial whether adultery precedes the promise and the promise follows, or vice versa, provided that in the latter case the promise has not been effectively revoked by at least one of the adulterers, since in that case the adultery would no longer be qualified; whereas the revocation of the promise of marriage, even by both parties, would be irrelevant if the adultery had already been committed, since the impediment would already have been incurred by the connection of the two elements.
II. The second hypothesis likewise requires the concurrence of two elements: adultery and attempted marriage (can. 1075, n. 1).
As regards adultery, what has been said above in n. II must be applied.
The attentatio matrimonii consists in performing an act that implies the expression of marital consent under circumstances that may signify a form of marriage, knowing that such an act will not give rise to a marriage due to a previously valid bond. Simple concubinage would therefore not suffice, whereas the impediment would arise if such an attempt were made before a civil registrar (as the canon itself states), or before a minister of religion (whether Catholic or not), or even by a private act, provided that marital consent is expressed. In the latter case, however, it would be necessary that such a private act could have some reference to the form of marriage.
For this figure too, it is required that both parties know of the existence of at least one valid marriage, as stated above; likewise, it is necessary that the two elements (adultery and attentatio) occur during the subsistence of the same marriage, though it is immaterial whether one precedes or follows the other.
IV. The third figure comprises the case of adultery with the murder of a spouse by one of the adulterers (can. 1075, n. 2). Adultery in the above forms is always required, and as regards the murder of a spouse, it is not necessary that both adulterers participate in the crime; it suffices that the crime be committed by one of them, even unbeknownst to or against the will of the other (it is evident that this figure would not arise if the murder of the spouse were not preceded by adultery). There must be a causal nexus between the death (which must actually occur) of the spouse and the act (physical or moral) performed by one of the adulterers; thus, the impediment would not arise if the spouse died from another cause (e.g., medical malpractice). Moreover, it is required that such spousal murder be committed with the intention of contracting marriage (animi nubendi) with the other adulterer: this intention (which is presumed until proven otherwise) is required by the purpose of the law or by the fact that the two elements (adultery and spousal murder), which must occur during the subsistence of the same marriage, cause injury to the innocent spouse as well as to the marriage. Naturally, it is required that the two adulterers know of the existence of that marriage which would then be dissolved by the spousal murder (otherwise, the adultery would not be qualified).
V. The fourth figure arises when two persons, by mutual physical or moral action, even without adultery, bring about the death of a spouse (can. 1075, n. 3).
It is required: that the death of a spouse actually occur (mere attempted or failed murder would not suffice); that the death result from physical or moral action (not due to a concausal factor) performed by two accomplices (machinatio), one of whom is the spouse of the deceased (passive behavior by one of them would not suffice); that the crime be committed with the intention, which is presumed until proven otherwise, of contracting marriage between the two accomplices (or with one of them, in the case where the crime is committed by more than two). Regarding this last requirement, doctrine is not unanimous: some require that the animi nubendi be present in both accomplices and be manifested to each other, while others require only that the animi nubendi be present in one party without requiring its manifestation to the other.
VI. The impediment may be multiplied by the occurrence of different hypotheses that give rise to the impediment itself (ratione delicti), or when injury is caused to more than one marriage (ratione matrimonii). That is, injury may be caused to the same marriage through adultery with promise, adultery with attentatio, or adultery with spousal murder committed by only one of the accomplices (in which case the impediment would be triple). Injury may be caused to more than one marriage if both offenders are married and injury is caused to both marriages by committing the acts envisaged in the hypotheses examined above; or if one or both accomplices are successively bound by more than one valid marriage and, during the subsistence of each marriage, the individual hypotheses from which the impediment arises occur. However, the impediment would not be multiplied if one of the criminal forms were repeated against the same marriage (e.g., repetition of adultery with promise).
The multiplication of the impediment is taken into consideration for the request and granting of a dispensation: mention must be made of the multiplicity of the impediment in the petition for dispensation.
Since the impediment, in all its forms, is of canon law, the Holy See could dispense in every case; however, in practice, if there has been public spousal murder, the Holy See (given the very grave scandal) does not grant a dispensation, either for the marriage to be contracted or for the validation of a marriage already contracted. If, on the other hand, the spousal murder has been occult, the Sacred Penitentiary grants a dispensation, though rarely and only for a most grave cause, adding in the rescript certain clauses: “of a grave and protracted penance to be imposed, which must last at least one year; with the obligation for the heirs of the slain spouse to satisfy, insofar as they are bound and able, the obligations owed to the heirs, but with caution lest they reveal themselves.”
In other cases, the Holy See readily grants dispensations under the usual conditions. It should be noted, moreover, that the first two figures of the impediment are classified among the minor impediments (can. 1042, § 2, n. 5), and thus dispensation in those cases is granted for any just cause and is also valid even if the petition for it were mendacious or reticent (can. 1054). For these same figures of the impediment (those in which there is no spousal murder), there is moreover a dispensation *ipso iure*, i.e., the cessation of the impediment, when the marriage to which injury has been caused is dissolved by a papal dispensation *quasi non consumato*, or when the Holy See has permitted one of the two contracting parties to contract a new marriage because the other contracting party is presumed dead (can. 1053).
VII. Italian legislation contemplates the *impedimentum criminis* in art. 88 of the Civil Code, which provides verbatim: “Persons of whom one has been convicted of the consummated or attempted murder of the spouse of the other may not contract marriage between themselves. If there has been only an indictment or an order of arrest, the celebration of the marriage is suspended until a judgment of acquittal is pronounced.”
Noteworthy, as one can see, are the differences between canon law and civil law. For the latter, in fact, only the murder of the spouse of the other contracting party produces the impediment in question. It is not required that the murder (voluntary, of course) be consummated; the mere attempt suffices to constitute the impediment. Nor is it necessary, on the other hand, that the other spouse have participated with the third party.
Article 2 of Law No. 847 of May 27, 1929, for the application of the Concordat with the Holy See, introduces the possibility of a dispensation for the *impedimentum criminis*; however, this provision is not reproduced in the 1942 Code.