Prior Marriage (Impediment to Marriage)

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Among the impediments to marriage, the Code of Canon Law lists that of prior marriage: "One bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage" (Codex Iuris Canonicis c. 1085 1). The Code of Canons of the Eastern Churches also states that one bound by the bond of a prior marriage invalidly attempts marriage (Codex Canonum Ecclesiarium Orientalium c. 802 §1).

The foundation of this impediment is not merely the law of the Church, but also the divine law. By both natural law and divine positive law, marriage possesses the property of unity. Therefore, any valid marriage precludes the possibility of entering another marriage by either consort unless the previous marriage has been dissolved. The Church teaches that the natural law itself forbids such a plurality of marriages, so that even the unbaptized cannot enter a valid marriage so long as the bond of a prior marriage exists.

The basis of this impediment is the property of unity that marriage enjoys and not the property of indissolubility. The prior marriage in question may be capable of dissolution for a cause other than the death of one of the spouses. Such would be the case in the use of the Pauline Privilege, whereby the marriage of two unbaptized persons is dissolved at the moment the marriage that favors the faith is contracted. Moreover, a marriage that has not been consummated may be dissolved by papal dispensation for a just cause (Codex Iuris Canonicis c. 1142; Codex Canonum Ecclesiarium Orientatium c. 862).

In the 12th century there was a dispute among two schools of canonists as to whether or not an unconsummated marriage was a perfect marriage. Some argued that a second marriage that was perfected by consummation would not be invalid because of the existence of the prior marriage. Pope Alexander III (115981) opposed such a theory, even though he probably held this opinion as a member of the School of Bologna before his accession to the Papacy. By the phrase "even it was not consummated" the code reaffirms the correct solution to this dispute.

"Even if the prior marriage should be invalid or dissolved for any reason whatsoever, it is not allowed to contract another marriage until it has been lawfully established that the former marriage was certainly invalid or dissolved" (Codex Iuris Canonicis c. 1085 §2; Codex Canonum Ecclesiarium Orientatium c. 802 §2).

It is to be noted that the absence of a spouse for a long time is not in itself sufficient proof of death. If death cannot be proved from public documents, the diocesan bishop can issue a declaration of presumed death (Codex Iuris Canonicis c. 1707 §1; Codex Canonum Ecclesiarium Orientatium c. 1383 §1). The bishop must have moral certitude of the death of the spouse in order to issue the declaration (Codex Iuris Canonicis c. 1707 §2; Codex Canonum Ecclesiarium Orientatium c. 1383 §2). In uncertain and complicated cases, the Latin bishop must consult the Holy See (Codex Iuris Canonicis c. 1707 §3), while the Eastern bishop is to consult either his patriarch or the Apostolic See of Rome (Codex Canonum Ecclesiarium Orientatium c. 1383 §3).

Bibliography: j. abbo and j. hannan, The Sacred Canons (St. Louis 1960) 2:1069. j. p. beal in j. p. beal et al., New Commentary on the Code of Canon Law (New York 2000) 12861288. p.j. jugis, ibid., 17981799.

[j. f. dede/eds.]