CRIME, Impediment of. - I. Adultery and homicide consummated against the person of a spouse, contemplated by the CIC respectively in cann. 2317 § 2 and 2354, constitute the basic element of a specific matrimonial impediment, precisely called impedimentum criminis, which may be defined as the incapacity to contract a valid marriage between those who, under determinate conditions, made themselves accomplices in the crime of adultery or of homicide. In fact, it is not simple complicity in adultery or in conjugicide that gives rise to the impediment, but only that complicity in which, together with the two crimes, other determinate elements and peculiar circumstances foreseen by law concur.
The impedimentum criminis had a long evolution, whereby grave considerations of matrimonial morality were gradually taken up by the juridical order and definitively fixed by a general norm.
Justinian was the first to sanction the nullity of the marriage of two accomplices in adultery (Novella 134, ch. 12). The Church, which in the first centuries applied to adultery the discipline of public penance without constituting a specific impediment, canonized, in the East, the Justinianic legislation, while in the West the penitential system continued, whereby two adulterers, having performed penance and the marriage having been dissolved by the death of the spouse, could validly contract with each other. Subsequently, with the decline of the penitential system, the concept of a specific impediment when the adultery was qualified came to be affirmed also in the West, and, precisely, at the Council of Meaux (845) adultery appeared as an impediment if conjugicide concurred with it (cf. Gratian's Decretum, c. 5, C. XXXI, q. 1). At this point, however, the detachment from the penitential system did not occur in a clear form, since, after a period of penance, the marriage could validly be contracted. It was at the Council of Trier (895) that there appeared, for the first time, the constitution 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 (1191-98) added to it the figure consisting in adultery with the attentatio matrimonii (c. 4, X, 4, 7) and, finally, yet a fourth species constituted by coniugicidium utroque machinante sine adulterio (c. 1, X, 3, 33). The impediment, handed down to us in this framework by the Decretals, came, without other substantial modifications, down to the CIC, which contemplates it in can. 1075 according to the four aforesaid figures:
3) adulterium cum coniugicidio uno patrante;
Although, by natural law, in the marriage of two persons who have made themselves accomplices in the crimes of conjugicide or of adultery, a most grave impropriety and unworthiness must be recognized, nevertheless natural law alone does not render the marriage null, inasmuch as such a union would not essentially conflict with the nature or the ends of marriage itself; therefore the impediment, in its whole scope, is established by human law. The Church, in constituting this impediment, wished to guarantee conjugal fidelity and the safety of spouses (indeed, once the possibility of contracting marriage with the accomplice in conjugicide or in qualified adultery is removed, there is one motive less for committing such crimes), as well as to punish the delinquents who brought such grave injury both to the innocent spouse and to marriage itself.
The impediment, precisely because it is of a merely canonical nature, does not hold for the unbaptized, although these may be struck with incapacity when this is established by the civil legislator. And even if two unbelievers received Baptism (or one of them) after having committed, in unbelief, the criminal acts mentioned above, there would be no impediment; likewise it would not take place, because the requisites of the law would not be verified, when, consisting of two elements (for example, adultery and promise of marriage), one of them was placed when Baptism had not yet been received, and the other after the reception of Baptism; on the contrary, if it is a question of a baptized person who has committed with an unbeliever the acts foreseen by the impediment, the incapacity would be verified, inasmuch as the impediment would directly strike the baptized party and therefore indirectly also the unbaptized party.
For all the figures of the impediment foreseen by can. 1075, it is essential that the two accomplices bring injury, by their criminal activity, to one and the same marriage: therefore it is necessary that at least one of the accomplices be bound by a valid canonical marriage, nor would a putative marriage suffice, since injury cannot be brought to what does not exist; that the requisites foreseen by the impediment be placed while one and the same marriage endures; that the criminal acts be perpetrated with true formal guilt of both participants. With these essential principles kept in mind, the four figures of the impediment are now examined, not forgetting that, in judging the various criminal elements, the norms relative to the interpretation of penal norms must be applied.
II. The first figure is set by the CIC in the following terms: Valide contrahere nequeunt matrimonium: qui, perdurante eodem legitimo matrimonio, adulterium inter se consummarunt et fidem sibi mutuo dederunt de matrimonio ineundo (can. 1075, n. 1). The essential elements for the impediment to be verified, in this case, are two: adultery and promise of marriage. As to the first: it is necessary that a true and proper adultery be committed, for which it is required that at least one of the two persons between whom carnal relations took place be bound by a valid canonical marriage (it does not matter if it has not yet been consummated).
The canonists, then, basing themselves on the letter of the law (adulterium inter se consummarunt), require that the adultery be perfect, that is, consummated by perfect copula (but perfect copula is always presumed when there have been relations); so that, if it could be demonstrated that it was not such (although, in the moral field, the irregularities of sexual relations increase its sinful character), the impediment would not take place. There is furthermore required in both adulterers knowledge relative to the existence of one and the same (at least) valid marriage (adulterio formale ex utroque parte); which would not be verified, for example, in the case that one of the two, unmarried, was ignorant that the other is married.
As regards the second element, that is, the promise of marriage: a true promise is necessary (not a simple desire or unilateral intention), serious (not simulated, but in the external forum the demonstration of the fictio would be required), pure (that is, absolute, not under condition), externally manifested, and mutual (that is, proposed by one party, accepted and reciprocated by the other), free (not vitiated by error or metus or dolus), with knowledge in both of the existence of one and the same valid marriage. It is understood, moreover, 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 shall have died.
The two elements (adultery and promise) must be verified during the subsistence of one and the same marriage (but the lapse of time intervening between the two elements is irrelevant): so that there would be no impediment if one of the two aforesaid elements were verified while a given marriage exists and the second during the existence of another marriage. It is then indifferent whether the adultery precedes and the promise follows or vice versa, provided that, in this second 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, even by both parties, of the promise of marriage would have no relevance if the adultery had previously been committed, since with the connection of the two elements the impediment would already have been verified.
III. The second hypothesis likewise requires the concurrence of two elements: adultery and attempted marriage (can. 1075, no. 1).
As for adultery, what has been said about it under no. II must apply.
Attentatio matrimonii consists in carrying out an act that involves the expression of matrimonial consent in determinate circumstances that can signify a form of marriage, while knowing that such an act will not give rise to marriage because of a previous valid bond. A simple concubinage would therefore not suffice, whereas the impediment would arise if such an attempt were made before the civil registrar (as the canon itself says) or before a minister of worship (whether Catholic or non-Catholic), or even simply by a private act, provided that matrimonial consent is expressed. But for this last case 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 canonically valid marriage, as was said above; just as it is necessary that the two elements (adulterium and attentatio) be placed during the existence of one and the same marriage, although it is immaterial whether one or the other of the two comes first.
IV. The third figure comprises the case of adultery with conjugicide on the part of one of the adulterers (can. 1075, no. 2). Adultery in the aforesaid forms is always required, and as regards the homicide committed against the person of a spouse, it is not necessary that the action of both adulterers concur, but it is sufficient that such a crime be committed by one of them, even without the knowledge or against the will of the other (as is evident, this figure would not arise if the homicide of the spouse were not preceded by adultery). Between the death (which must really occur) of the spouse and the action (physical and moral) undertaken by one of the adulterers there must intervene a causal nexus, so that the impediment would not arise when the spouse had died from another cause (e.g., the doctor's unskillfulness). Furthermore, it is required that this conjugicide have acted with the intention of contracting marriage (animus nubendi) with the other adulterer: such an intention (which is presumed until proof to the contrary) is required by the purpose of the law or by the fact that the two elements (adultery and conjugicide, which must occur during the subsistence of one and the same marriage) must bring injury to the innocent spouse as well as to the marriage. Naturally it is necessary that the two adulterers know of the existence of that marriage which would then be dissolved by the conjugicide (otherwise the adultery would not be qualified).
V. The fourth figure applies to those who mutua opera physica vel morali, etiam sine adulterio, mortem coniugi intulerunt (can. 1075, no. 3).
It is required: that the death of a spouse really occur (attempted or failed homicide would not suffice); that the death result from physical or moral action (not due to a concurrent cause) undertaken by two accomplices (machinatio), one of whom is the spouse of the killed person (a merely passive behavior on the part of one of them would not suffice); that such a crime have been committed with the intention, which is presumed until proof to the contrary, of contracting marriage between the two co-defendants (or with one of the co-defendants in the case where the conjugicide was committed by more than two). Regarding this last requirement doctrine is not in agreement, some requiring that the animus nubendi must exist on the part of both accomplices and must be manifested by one to the other; while others require the animus in only one party without requiring its manifestation to the other.
VI. The impediment can be multiplied by the occurrence of the different hypotheses that bring the impediment itself into being (ratione delicti), or when injury is done to several marriages (ratione matrimonii). That is, injury can be done to one and the same marriage by adultery with promise, adultery cum attentatione, adultery with conjugicide committed by only one of the accomplices (in which case the impediment would be threefold). Injury can be done to several marriages, if both delinquents were married and injury were done to both marriages by committing the acts envisaged by the hypotheses examined above; or if one or both accomplices were several times successively bound by a valid marriage and during the subsistence of each marriage the individual hypotheses from which the impediment originates were to occur. But 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 the dispensation: the multiple impediment must be mentioned in the petition for dispensation.
Since the impediment, in every one of its species, is of canon law, in every case the Holy See could dispense; nevertheless, in fact, if there had been a public conjugicide the Holy See (given the very grave scandal) does not dispense, both for the case of a marriage to be contracted and for the convalidation of a marriage already contracted. If instead the conjugicide was occult, the Sacred Penitentiary grants the dispensation, although rarely and only for a most grave cause, adding in the rescript certain clauses: «de gravi et diuturna poenitentia imponenda, quae saltem per annum duret; cum obligatione heredibus coniugis occisi in eo in quo tenentur et possunt a tout de iure satisfaciendi, caute tamen ne se prodant».
In the other cases the Holy See is accustomed to dispense under the usual conditions. And indeed it is to be noted that the first two figures of the impediment are classified among the minor impediments (can. 1042 § 2, no. 5), and therefore the dispensation in those cases is granted for any just motive and moreover is valid even if the petition to obtain it had been mendacious or reticent (can. 1054). For these same figures of the impediment (which are those in which there is no conjugicide) there is then the dispensation (pso iure, that is, the cessation of the impediment, when the marriage to which injury was done has been dissolved by pontifical dispensation as not consummated, or when the Holy See has permitted one of the two contracting parties of it 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 textually provides: «Persons of whom one has been convicted of consummated or attempted homicide against the spouse of the other cannot contract marriage with each other. If only committal for trial took place or arrest was ordered, the celebration of the marriage is suspended until a judgment of acquittal is pronounced».
Notable, as can be seen, are the differences between canon law and civil law. For the latter, in fact, only the homicide of the spouse of the other contracting party produces the impediment in question. It is not required that the homicide (voluntary, of course) have been consummated, the mere attempt sufficing to constitute the impediment; nor, on the other hand, is it necessary that the other spouse also have participated in it with the third party.
Art. 2 of the law of 27 May 1929 no. 847, for the application of the Concordat with the Holy See, introduced for the impedimentum criminis the possibility of dispensation; but such a provision is not reproduced in the Code of 1942.