LIGAMEN. - A diriment impediment that prevents the valid and licit celebration of marriage on the part of one who is bound by a previous valid marriage, even if unconsummated (can. 1069 § 1).
I. NOTION
Marriage is monogamous, and therefore excludes simultaneous polygamy, that is, the marriage of one man to several women, and simultaneous polyandry, that is, the union of one woman with several men. Unity is, like indissolubility, an essential property of Christian marriage, and represents the union of Christ with the Church; it is perfect if neither of the two spouses contracts a second marriage after the legitimate dissolution of the first bond, and imperfect if one of the two spouses enters into a second marriage.
The unity of marriage is founded on natural law, and it is in no way established that before the Flood it had been dispensed from by the Lord; indeed, the very creation of man and woman is proof to the contrary. After the Flood polygamy was permitted for the multiplication of the chosen people, and it was also contemplated in the Mosaic law; polyandry, on the other hand, was never permitted. Jesus Christ brings marriage back to its original unity: « Quicunque dimiserit uxorem suam... et alium duxerit moechatur, et qui dimissum duxerit, moechatur » (Mt. 19, 9), as is also confirmed by St. Paul (I Cor. 7, 10-11).
The history of this impediment is closely connected with the history of the indissolubility (v.) of the bond. In the 12th century a question arose between the schools of Paris and Bologna as to whether a marriage that was only ratified was perfectum or merely initiatum; and whether the same constitutes an impedimentum ligaminis in the case of a subsequent consummated marriage. The theory which asserted that marriage was not perfect before consummation was condemned by the pontiffs Alexander III and Innocent III.
During the Reformation two extreme theories, equally erroneous, were upheld: Calvin asserted that the very patriarchs of the Old Testament were guilty of adultery for having had several wives, and Luther maintained that there was no explicit prohibition against polygamy; and with the favorable opinion of various Protestant theologians he recognized in the Landgrave of Hesse, Philip, the faculty of contracting marriage with another woman during the existence of the first bond.
This impediment is of divine natural and positive law, and cannot be dispensed from by the Supreme Pontiff.
II. IN CANON LAW
For the impediment of ligamen to exist, there is required the validity of the previously contracted marriage, whether consummated or merely ratified, and its true and objective existence, in that it has not been legitimately dissolved: consequently, a marriage contracted in the erroneous conviction that the previous one was dissolved by the death of one of the spouses is also invalid, even if the first was merely ratified and the second even consummated, whereas the new marriage contracted by the spouses in ignorance of the dissolution of the previous bond is valid.
To contract a new bond there is required the nullity or the dissolution of the previous bond. The latter, for a consummated marriage, occurs through the death of a spouse or by virtue of the Pauline Privilege (v.) for the marriage of unbelievers, one of whom is converted; for a ratified marriage (v. MATRIMONIO) through solemn religious profession or through pontifical dispensation. The CIC explicitly warns of the necessity of ascertaining the nullity or the dissolution of the previous bond: Quamvis prius matrimonium sit irritum aut solutum qualibet ex causa, non ideo licet aliud contrahere, antequam de prioris nullitate aut solutione legitime et certo contiterit (can. 1069 § 2). Moral certainty of nullity is had through the twofold concordant sentence declaring the invalidity, pronounced by the ecclesiastical authority (can. 1987), with the exception of evident nullities, provable in accordance with can. 1990, for the declaration of which a single pronouncement is sufficient without the need for the formalities of a trial. The decisions of civil tribunals or of schismatic or heretical authorities have no value for this purpose. The proof of the dispensation of a ratified and non-consummated marriage and of the right to contract a new bond by virtue of the Pauline Privilege must be furnished with authentic documents. For the proof of dissolution by the death of a spouse v. MONTE.
In the case of a new marriage celebrated in good or bad faith, when the other spouse is living, or his death is seriously doubted, the following considerations hold:
1) if the first spouse is still alive, the second marriage is invalid by divine law, even if the death had been declared by a judicial sentence or by an authentic certificate. Consequently, if after the celebration in good or bad faith of a second marriage it comes to light that the first spouse is still alive, the pseudo-spouses must separate and the conjugal life of the previous bond must be restored, unless a cause justifies the separation: this holds even if the first marriage was merely ratified and the second consummated; 2) if the spouses are in good faith regarding the dissolution of the previous bond, it is advisable not to influence their conviction of its validity, until the existence in life of the first spouse is certainly established; 3) even if the second marriage was celebrated in good faith while the first spouse was living, after the death of the latter the second marriage does not become valid, but a renewal of consent is required; 4) if the second marriage was celebrated in bad faith with the person with whom adultery was committed, in the event of the dissolution of the previous bond the parties may contract without a special dispensation from the impedimentum criminis (v. CRIMINE).
Cases concerning bigamy fall within the competence of the ecclesiastical judge, since the existence of the crime depends on the validity of the first marriage, a matter of exclusive competence of the Church for the marriages of the baptized.
The punishment of the crime of bigamy is of mixed forum (can. 2198).
III. IN THE CIVIL CODE
Civil legal systems also admit the existence of this impediment. Art. 86 of the Italian Civil Code lays down that "a person who is bound by a previous marriage cannot contract marriage." It is evident that the previous bond must be valid, even though this is not expressly stated by the law. Proof of freedom of state must be furnished according to the rules of the civil status system (Royal Decree of 9 July 1939, no. 1238). The Code further contemplates the case of presumed freedom of state and lays down in art. 65: "Once the judgment declaring presumed death has become enforceable, the spouse may contract a new marriage": in this case, however, only the impedient effect of the previous bond ceases, not the diriment effect, since under art. 68 the second marriage is null "if the person whose presumed death was declared returns or his existence is established." In this case the Code preserves the civil effects of the marriage declared null. It should be noted, moreover, that the nullity of the marriage cannot be pronounced in the case where death is established even if it occurred on a date later than that of the new marriage, that is, when the previous bond was not yet dissolved.
The Penal Code (arts. 556-57) imposes grave penalties for the crime of bigamy (v.).