CRIMINE, IMPEDIMENTO del. — I. Adultery and homicide committed against the person of a spouse, contemplated by the CIC respectively in can. 2317 § 2 and can. 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 persons who, under certain conditions, have become accomplices in the crime of adultery or homicide. In fact, it is not simple complicity in adultery or spouse-murder that gives rise to the impediment, but only that complicity in which the two crimes are accompanied by other specific elements and particular circumstances established by law.
The impedimentum criminis underwent a long development, whereby serious considerations of matrimonial morality were gradually incorporated into the legal order and definitively established by a general norm.
Justiniano was the first to sanction the nullity of the marriage of two accomplices in adultery (Novella 134, chap. 12). The Church, which in the early centuries applied to adultery the discipline of public penance without establishing a specific impediment, adopted, in the East, Justinian’s legislation as canon law, whereas in the West the penitential system continued, with the result that two adulterers, once they had performed the penance and the marriage had been dissolved by the death of the spouse, could validly marry one another. Later, as the penitential system declined, the notion of a specific impediment also came to be affirmed in the West when the adultery was qualified, and, more precisely, at the Council of Mesux (845), adultery accompanied by spouse-murder appeared as an impediment (cf. Decree of Graziano, c. 5, C. XXXI, q. 1). At this point, however, the separation from the penitential system did not occur in a clear-cut form, since, after a period of penance, marriage could validly be contracted. It was at the Council of Treviri (895) that, for the first time, the constitution of a genuine impediment appeared in the case of adultery accompanied by a promise of marriage to be celebrated after the death of the innocent spouse (c. 4, C. XXXI, q. 1). Clemente III (1191–98) added the form consisting in adultery with attentatio matrimonii (c. 4, X, 4, 7) and, finally, a fourth type consisting of coniugicidium utroque machinante sine adulterio (c. 1, X, 3, 33). The impediment, transmitted to us in this scope by the Decretals, reached the CIC without any further substantial modifications; the CIC treats it in can. 1075 according to the four aforementioned forms:
3) adulterium cum coniugicidio uno patrante;
Although, by natural law, the marriage of two persons who have become accomplices in crimes of spouse-murder or adultery must be regarded as involving the gravest impropriety and unworthiness, natural law alone does not render the marriage null, since such a union would not essentially conflict with the nature or the ends of marriage itself; therefore, throughout its entire scope, the impediment is established by human law. In constituting this impediment, the Church intended to safeguard conjugal fidelity and the safety of spouses (for, once the possibility of marrying an accomplice in spouse-murder or qualified adultery is removed, there is one fewer motive for committing such crimes), as well as to punish the offenders who inflicted so grave an injury both upon the innocent spouse and upon marriage itself.
The impediment, precisely because it is purely canonical in nature, does not apply to the unbaptized, although they may be rendered incapable when such incapacity is established by the civil legislator. And even if two infidels received Baptism (or one of them did) after having committed, while in infidelity, the criminal acts mentioned above, the impediment would not exist; likewise, it would not arise, because the requirements of the law would not be fulfilled, when, where the law requires two elements (e.g., adultery and a promise of marriage), one of them was performed before Baptism had been received and the other after the reception of Baptism; conversely, if a baptized person has committed with an infidel the acts covered by the impediment, the incapacity would arise, since the impediment would directly affect the baptized party and therefore indirectly also the unbaptized party.
For all the forms of impediment provided for by can. 1075, it is essential that the two accomplices, through their criminal activity, inflict an injury upon one and the same marriage: consequently, at least one of the accomplices must be bound by a valid canonical marriage, nor would a putative marriage suffice, since no injury can be inflicted upon what does not exist; that the elements required by the impediment be performed while one and the same marriage continues to exist; and that the criminal acts be perpetrated with genuine formal culpability on the part of both participants. With these essential principles in mind, the four forms of the impediment will now be examined, without forgetting that, when judging the various criminal elements, the norms concerning the interpretation of penal laws must be applied.
II. The first form is set forth 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 required for the impediment to arise in this case are two: adultery and a promise of marriage. As to the first, it is necessary that a genuine act of adultery be committed, which requires that at least one of the two persons between whom sexual relations took place be bound by a valid canonical marriage (it is immaterial whether it has not yet been consummated).
Canonists, moreover, basing themselves on the wording of the law (adulterium inter se consummarunt), require that the adultery be perfect, that is, consummated by perfect intercourse (although perfect intercourse is always presumed when sexual relations have occurred); thus, if it could be demonstrated that it was not such (although, in the moral sphere, irregularities in sexual relations increase their sinful character), the impediment would not arise. It is also necessary that both adulterers possess knowledge of the existence of the same (at least) valid marriage (adulterio formale ex utroque parte); this would not be the case, for example, if one of the two, being unmarried, were unaware that the other was married.
As regards the second element, namely, the promise of marriage, a genuine promise is necessary (not a mere desire or unilateral intention), serious (not simulated; but in the external forum proof of the fictio would be required), pure (that is, absolute and not conditional), externally manifested, and mutual (that is, proposed by one party, accepted and reciprocated by the other), free (not vitiated by error or metus o dolus), with both parties aware of the existence of the same valid marriage. It is understood, moreover, that this promise must concern the marriage to be celebrated, in the prescribed form, between the two adulterers when the innocent spouse has died.
The two elements (adulterio and promessa) must occur during the continuance of one and the same marriage (but the interval between the two elements is irrelevant); consequently, the impediment would not exist if one of the two aforementioned elements occurred while a given marriage was in existence and the second during the existence of another marriage. It is likewise immaterial whether the adultery precedes the promise 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 event, the adultery would no longer be qualified; whereas the revocation, even by both parties, of the promise of marriage would be irrelevant if the adultery had previously been committed, since the impediment would already have arisen through the connection of the two elements.
III. The second hypothesis likewise requires the concurrence of two elements: adultery and attempted marriage (can. 1075, no. 1).
As regards adultery, what was said concerning it in no. II must be applied here.
The attentatio matrimonii consists in performing an act that entails the expression of matrimonial consent in determinate circumstances capable of signifying a form of marriage, while knowing that such act will not give rise to marriage because of a previously valid bond. A simple concubinage would therefore not suffice, whereas the impediment would arise if the attempt were made before the civil registrar (as the canon itself says), or before a minister of religion (whether Catholic or non-Catholic), or even simply by private act, provided that matrimonial consent were expressed. But in this latter case it would be necessary for the private act to have some connection with the form of marriage.
Here too it is required that both parties know of the existence of at least one canonically valid marriage, as stated above; likewise, it is necessary that the two elements (adulterium and attentatio) occur during the existence of one and the same marriage, although it is immaterial which of the two precedes the other.
IV. The third form comprises the case of adultery accompanied by the murder of a spouse by one of the adulterers (can. 1075, no. 2). Adultery in the forms mentioned above is always required; as regards the murder committed against the person of a spouse, it is not necessary that both adulterers take part in it, but it suffices that the crime be committed by one of them, even without the knowledge or against the will of the other (obviously, this form would not arise if the adultery had not preceded the murder of the spouse). There must be a causal connection between the death of the spouse—which must in fact occur—and the physical and moral action undertaken by one of the adulterers; consequently, the impediment would not arise if the spouse died from another cause (e.g., the physician’s incompetence). Furthermore, it is required that the spouse-murderer have acted with the intention of contracting marriage (animus nubendi) with the other adulterer: this intention—which is presumed until the contrary is proved—is required by the purpose of the law and by the fact that the two elements (adultery and spouse-murder, which must occur during the existence of one and the same marriage) must constitute an injury to the innocent spouse as well as to the marriage. Naturally, the two adulterers must know of the existence of that marriage, which would subsequently be dissolved by the spouse-murder (otherwise the adultery would not be qualified).
V. The fourth form occurs in the case of those who mutua opera physica vel morali, etiam sine adulterio, mortem coniugi intulerunt (can. 1075, no. 3).
The following is required: that the death of a spouse actually occur (an attempted or unsuccessful murder would not suffice); that the death result from physical or moral action (not attributable to a concurrent cause) undertaken by two accomplices (machinatio), one of whom is the spouse of the person killed (passive conduct on the part of one of them would not suffice); and that the crime be committed with the intention—which is presumed until the contrary is proved—of contracting marriage between the two co-perpetrators (or with one of the co-perpetrators if the spouse-murder were committed by more than two). With regard to this last requirement, doctrine is not unanimous: some require that the animus nubendi be present on the part of both accomplices and that it be manifested by one to the other; others require the animus on the part of only one, without requiring its manifestation to the other.
VI. The impediment may be multiplied by the occurrence of the various hypotheses that constitute the impediment itself (ratione delicti), or when injury is inflicted upon several marriages (ratione matrimonii). Thus, injury may be inflicted upon one and the same marriage through adultery with a promise, adultery cum attentatione, or adultery accompanied by spouse-murder committed by only one of the accomplices (in that case the impediment would be threefold). Injury may be inflicted upon several marriages if both offenders were married and injury were inflicted upon both marriages by committing the acts envisaged in the hypotheses examined above; or if one or both accomplices were successively bound by valid marriages several times, and during the existence of each marriage the individual hypotheses giving rise to the impediment occurred. The impediment would not, however, be multiplied if one of the criminal forms were repeated against the same marriage (e.g., repetition of adultery with a promise).
The multiplication of the impediment is relevant to the request for and granting of a dispensation: mention must be made of the multiple impediment in the application for dispensation.
Since the impediment, in each of its forms, is of ecclesiastical law, the Holy See could in every case dispense from it; nevertheless, in practice, if public spouse-murder had occurred, the Holy See does not dispense (on account of the very grave scandal), either for a marriage to be contracted or for the validation of a marriage already contracted. If, on the other hand, the spouse-murder was secret, the Holy Penitentiary grants the dispensation, although rarely and only for a very grave cause, adding certain clauses to the rescript: «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 other cases the Holy See ordinarily grants dispensation under the usual conditions. It should indeed be noted that the first two forms of the impediment are classified among the minor impediments (can. 1042 § 2, no. 5); consequently, in those cases dispensation is granted for any just reason and is valid even if the application submitted to obtain it was mendacious or reticent (can. 1054). For these same forms of the impediment—which are those in which there is no spouse-murder—there is also dispensation (ipso iure, that is, cessation of the impediment) when the marriage against which the injury was committed has been dissolved by pontifical dispensation as unconsummated, or when the Holy See has permitted one of the two parties to it to contract a new marriage because the other party is presumed dead (can. 1053).
VII. Italian legislation addresses the impedimentum criminis in art. 88 of the Civil Code, which provides verbatim: «Persons one of whom has been convicted of the completed or attempted murder of the other’s spouse may not contract marriage with each other. If there has merely been a committal for trial or an arrest has been ordered, the celebration of the marriage is suspended until a judgment of acquittal has been pronounced».
The differences between canon law and civil law are, as can be seen, considerable. Under the latter, only the murder of the other contracting party’s spouse produces the impediment in question. It is not required that the murder (voluntary, naturally) have been completed, since the mere attempt suffices to constitute the impediment; nor, on the other hand, is it necessary that the other spouse have participated in it together with the third party.
Art. 2 of the law of 27 May 1929, no. 847, implementing the Concordat with the Holy See, introduced the possibility of dispensation from the impedimentum criminis; but this provision was not reproduced in the Code of 1942.