LIGAMEN. – A diriment impediment that prevents the valid and licit celebration of marriage by one who is bound by a previous valid marriage, even if it has not been consummated (can. 1069 § 1).
I. NOTION
Marriage is monogamous and therefore excludes simultaneous polygamy, that is, the marriage of one man with 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 spouses contracts a second marriage after the legitimate dissolution of the first bond, and imperfect if one of the spouses contracts a second marriage.The unity of marriage is founded on natural law, and there is no evidence whatsoever that, before the Flood, the Lord had granted a dispensation from it; indeed, the very creation of man and woman proves 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, however, was never admitted. Jesus Christ restored marriage 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 s. 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 twelfth century, a dispute arose between the schools of Paris and Bologna as to whether a merely ratified marriage was perfectum or simply initiatum; and whether it constituted an impedimentum ligaminis in the event of a subsequent consummated marriage. The theory that marriage was not perfect before consummation was condemned by the pontiffs Alexander III and Innocent III.
During the Reformation, two extremist theories, equally erroneous, were advanced: Calvin maintained that the patriarchs of the Old Testament themselves were guilty of adultery for having several wives, while Luther held that there was no explicit prohibition against polygamy; and, with the favorable opinion of various Protestant theologians, he recognized the Landgrave of Hesse, Filippo, as having the faculty to contract marriage with another woman while the first bond still existed.
This impediment is of natural and positive divine law, and cannot be dispensed by the Supreme Pontiff.
II. IN CANON LAW
For the existence of the impediment mentioned under I, the validity of the marriage previously contracted is required, whether consummated or merely ratified, as well as its true and objective existence, since it has not been legitimately dissolved. Consequently, a marriage contracted in the erroneous belief that the previous one had been dissolved through the death of one of the spouses is likewise invalid, even if the first marriage was merely ratified and the second also consummated, whereas a new marriage contracted by the spouses in ignorance of the dissolution of the previous bond is valid.To contract a new bond, the previous bond must be null or dissolved. In the case of a consummated marriage, the latter occurs through the death of one of the spouses or Pauline Privilege (v.) in the case of the marriage of infidels, one of whom converts; in the case of a ratified marriage (v. MATRIMONIO), through solemn religious profession or pontifical dispensation. The CIC explicitly admonishes regarding the necessity of establishing the nullity or 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 obtained through two concordant declaratory judgments of invalidity, pronounced by ecclesiastical authority (can. 1987), except in the case of evident nullities, which can be proved in accordance with can. 1990; for their declaration, a single judgment is sufficient, without the procedural formalities. Decisions of civil tribunals or of schismatic or heretical authorities have no value for this purpose. 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 by authentic documents. For proof of dissolution through the death of one of the spouses V. MONTE.
In the case of a new marriage celebrated in good or bad faith, when the other spouse is alive or his or her death is seriously doubtful, the following considerations apply:
1) if the first spouse is still alive, the second marriage is invalid by divine law, even if the death had been declared by 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 conjugal life under the previous bond must be restored, unless some cause justifies the separation; this applies 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 disturb their belief in its validity until the existence in life of the first spouse has been established with certainty; 3) even if the second marriage was celebrated in good faith while the first spouse was alive, after the latter’s death the second marriage does not become valid, but the consent must be renewed; 4) if the second marriage was celebrated in bad faith with the person with whom adultery had been committed, in the event of dissolution of the previous bond the parties may marry without a special dispensation from the impedimentum criminis (v. CRIMINALE).
Cases concerning bigamy fall under the jurisdiction of the ecclesiastical judge, since the existence of the crime depends on the validity of the first marriage, a matter falling exclusively within the competence of the Church in the case of marriages between baptized persons.
The punishment of the offense of bigamy belongs to a mixed forum (can. 2198).
III. IN THE CIVIL CODE
Civil legal systems, too, recognize the existence of this impediment. Article 86 of the Italian Civil Code provides that “a person bound by a previous marriage may not contract marriage.” It is evident that the previous bond must be valid, although this is not expressly stated by the law. Proof of freedom of status must be furnished according to the rules governing civil registration (R. D. 9 July 1939, no. 1238). The Code also contemplates the case of presumed freedom of status and provides in Article 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 its diriment effect, since, according to Article 68, the second marriage is null “if the person whose presumed death was declared returns or his or her existence is ascertained.” In this case the Code preserves the civil effects of the marriage declared null. It should also be noted that the nullity of the marriage may not be pronounced when death is established, even if it occurred on a date subsequent to that of the new marriage, that is, when the previous bond had not yet been dissolved.The Penal Code (Articles 556–57) imposes severe bigamy (v.).