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Monday, April 17, 2017

Worse Than Adultery: The Excommunicable Offense of Second Marriage

By:   Paul Schultz
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Worse Than Adultery: The Excommunicable Offense of Second Marriage

Civil divorce and the canonical delict of bigamy: “The 1917 Code did not consider the remarriage of the divorced under the crime of adultery or public concubinage (cf. CIC’ 17 c. 2357 Sec. 2) since there existed, in their case, the celebration of an exchange of consent which has satisfied the conditions of common law marriage. In this manner, the 1917 Code stressed that the mere fact that civil marriage was attempted, there existed a worse delict committed: civil marriage of the Baptized. For this reason, “adulterous concubinage does not suffice for the commission of the crime (of bigamy) since the delict (of bigamy) is consummated only when the principals have exchanged their marital vows.

The divorced and remarried, considered as bigamists (cf. CIC’ 17 c. 2356), were ipso facto infamous. For the ipso facto penalty of the infamia iuris to be incurred, two objective prerequisites are to be present: there must be an objectively valid nuptial union and, concomitantly, an attempted second marriage. This extreme punitive measure is employed by the Church as a vindicative penalty which entails the loss of certain rights. Their situation as legally infamous includes them within the categories of those who were considered as publicly unworthy and public sinners (cf. CIC’ 17 c.855, Sec. 1; 1240, Sec. 1). Such canonical condition of legal infamy entailed a series of penalties which would be either prohibitive or inhabilitating.

The second part of canon 2356 contains the typification of the second degree of the delict of bigamy; “…those who, notwithstanding a conjugal bond, attempt to enter another marriage, even a civil one as they say… and if spurning the admonition of the Ordinary, they stay in the illicit relationship, they are to be excommunicated according to the gravity of the deed or struck with personal interdict… Since the penalty is
ferendae sententiae, there should be a certain degree of contumacy and a valid warning or admonition from the Ordinary in order for the penalty to be validly imposed.”1

Since the 1917 code 2356 considered attempted remarriage, notwithstanding a conjugal bond, a more serious delict than adultery: the current alternative of living together as brother and
sister would have been completely irrelevant. Consequently, canon 2356 was eliminated from the 1983 Code of Canon Law. ■

1 Fredel G. Agatep, The Canonical Situation and the Exercise of the Rights and Obligations of the Divorcrd. 2006, pp. 190-192


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