In his article entitled, "Another Look at Ligamen", The Jurist 47, (1987) 341-370, John G. Johnson begins by discussing the writings of Francis Morrisey with regard to this issue. The impediment of ligamen was found in Canon 1990 of the 1917 Code of Canon Law and can be found in Canon 1085 of the 1983 Code of Canon Law. The 1983 Code states, "A person bound by the bond of a prior marriage, even if it was not consummated, invalidly attempts marriage. Even if the prior marriage is invalid or dissolved for any reason, it is not on that account permitted to contract another before the nullity or dissolution of the prior marriage is established legitimately and certainly". (c. 1085) Johnson states that canonists universally identify the impediment of ligamen as being of Divine law and as ceasing upon the death of one of the parties or legitimate dissolution of the marriage; however, Morrisey suggests that in addition to being of Divine law, the impediment of ligamen might also be an impediment of ecclesiastical law since it is found in the Code of Canon Law without any reference to its origins. If this is, in fact, the case it would simplify the task of a tribunal confronted with the victim of several broken marriages. In addition to the investigation of the validity of the first marriage, the petitioner would have to undergo only the largely procedural complication of having subsequent "marriages" annulled documentarily on grounds of the ecclesiastical impediment of ligamen.
Bertram Griffin takes up Morrissey's argument and moves it a step further. In an article entitled, "The Samaritan Woman and the Marriage Tribunal" written in 1982, he makes the distinction between "external juridic validity, or presumed validity" and "internal divine law consensual and 'true' validity". He explains that external or juridic validity is founded on the fact of the celebration of a marriage with those solemnities required for valid recognition in the juridic order and without clear and definite impediments…once it is established that the parties celebrated a marriage in accordance with those requirements of law for the valid solemnization of marriage, and without clear and definite impediment, then the Church can declare such a marriage valid. The internal consensual or validity of marriage, however, cannot be proven in church court. The Church cannot read the inner heart of the married couple…canonists are beginning to maintain that it is the externally or publicly valid marriage which is presumed valid that founds the impediment of the previous bond. Even if the presumed internal validity were subsequently proven false, the impediment of ligamen would cease for all future marriages, but the marriages entered into would still be considered invalid by ecclesiastical law." Griffin argues that "it is not the internally valid marriage that founds the impediment, but the externally valid marriage which must be presumed valid in the external forum. Even if the marriage later can be proven to be null and void internally, subsequent marriages celebrated prior to such a church decision, must subsequently be considered null and void because of the impediment of ecclesiastical law." Griffin's wording is very important here. His claim goes beyond Morrissey's suggestion that annulling them is a legitimate interpretation of the law. Griffin also goes on to insist that the defender of the bond acting in the ligamen case is prohibited by law from attacking the validity of the first marriage.
While Canon 1085 is quite clear with regard to the diriment impediment of ligamen, it receives further explanation in canon 1134 which speaks about the perpetual and exclusive nature of the matrimonial bond. Since it is perpetual, it cannot be dissolved at the whim of either party (which is a marked difference from the understanding of marriage in accord with Roman law) and since it is exclusive, it cannot be entered into with anyone else during the lifetime of his or her spouse. Unlike the now-suppressed impediment of spiritual relationship or the still-extant impediment of orders, ligament is less a creation of than a recognition by ecclesiastical law. The wording of some of the canons makes clear the fact that two different audiences are being addressed. Canon 1086 s. 3, for example, is clearly of interest to tribunals rather than parish ministers. This canon states "If at the time the marriage was contracted one party was commonly held to have been baptized or the baptism was doubtful, the validity of the marriage must be presumed according to the norm of canon 1060 until it is proven with certainty that one party was baptized and the other was not." The person preparing a couple for marriage would take a different approach to doubts about the presence of this impediment. Canon 1084, s. 2, for example, allows the minister to proceed with a wedding even if one of the parties' freedom from impotence is in doubt.
The article then goes on to discuss the importance of looking to the Roman Rota as a source of law, in accord with Canon 19. Johnson gives several examples of how Rome handled marriage cases in which the impediment of prior bond was raised. The way in which individual cases have been decided has been consistent with the principle that only a valid first marriage precludes entering a second. One relevant case involves Joseph, Irene, et. al. Joseph contracted marriage in the Catholic Church with Ella on January 15, 1931. He then married Gratia in the presence of a Protestant minister on January 11, 1936. Styling himself a bachelor, he contracted marriage in the Catholic Church with Irene on September 9, 1936. When she became aware of her spouse's marital history, Irene obtained a civil divorce and petitioned for a declaration of nullity on the grounds of ligamen. She received an affirmative decision in the first instance and a negative decision in the second. The case there was heard coram Wynen. Wynen insisted that if a serious doubt arises about the validity of a first marriage, then the decision about the validity of the second must be held in suspense until this doubt is resolved. The second marriage would be valid (assuming the parties gave naturally sufficient consent) if the first was invalid. The auditor states that the "marriage which Joseph and Irene contracted with each other on September 9, 1936 must be declared invalid if it is evident that the man at the time was bound by another valid marriage." In fact, Joseph's marriage to Ella was invalid by reason of nonage on her part; hence, his marriage to Irene could not be annulled on grounds of ligamen. The Rota did not consider it relevant that Joseph's first marriage had not yet been declared invalid. If anyone were bound by an ecclesiastical impediment of ligamen, a baptized Roman Catholic certainly would be, but the Rota's analysis of this case provides no support for this hypothesis. Johnson ends the article by raising some questions for further study. He asks questions such as "How does undergoing a ceremony of marriage render a person incapable of contracting a new marriage?", "What evidence is there that Pope Benedict XV intended to enact a diriment impediment of ecclesiastical law arising from putative marriages?", "What accounts for the widespread misunderstanding of the law on the part of more than one generation of otherwise competent jurists?" He then proceeds to come up with answers to these questions. These answers are not intended to be the last word on any of these subjects, but are meant to inspire further consideration.
As priests in the new millennium, serving in a country which grants more annulments than almost any other nation in the world, the issues dealt with in this article will certainly have to be addressed by us. Given the very high rate of divorce among Catholics, it will be a rather common experience for most of us to have to deal with people who are the victims of multiple marriages. Johnson makes some very interesting points which will contribute to further discussions regarding this topic. However, there was at least one issue which he raised in this article which I felt needed additional explanation. As stated earlier, Griffin was quoted as saying that the defender of the bond acting in the ligamen case is prohibited by law from attacking the validity of the first marriage. This statement appears to be in direct contrast to Canon 1626 which states, "Not only can the parties who consider themselves aggrieved introduce a complaint of nullity, but also the promoter or justice and the defender of the bond whenever they have the right to intervene." If Griffin makes reference to this canon in his article, Johnson does not make any mention of it. In fact, he gives no explanation as to how Griffin came to this conclusion. There does not appear to be indication in the canons that the defender of the bond is prevented by law from attacking the validity of the first marriage, assuming that he or she has the right to intervene. While I realize that marriages are given the benefit of law in regard to their validity; however, it is the very issue of validity which is being addressed in the annulment process.
One of the major points which the article brings out is the importance of the priest or deacon following proper procedure while meeting with the couple and finding out if there are any possible impediments which would interfere in the marriage process. The Church is not eager to risk witnessing invalid marriages. Before its ministers officially ask for and receive the parties' exchange of consent, before the community witnesses that exchange as a sacrament, the Church wants to be certain that the couples are able to marry. Since marriage generally is a public act, capable of proof in court, the Church insists that formerly-married persons prove that their prior unions have been legitimately dissolved or declared invalid. The requirement of proof does not change the real status of the parties. Someone who fraudulently obtains an annulment can very easily comply with the requirement of canon 1085, s.2; his or her new marriage will not therefore be valid. It has occasionally happened, however, that someone concealed a prior invalid marriage and thereby managed to contract a second marriage in the presence of a properly-qualified priest and two witnesses. Would such a marriage be valid or not? There is such a case referred to in the article and the Congregation for the Sacraments argued that the impediment of prior bond ceased to exist by the declaration of nullity of the prior marriage. The legal weight of this rescript was addressed by Edward J. Dillon. He states that it is not an "authentic" interpretation of law since such an interpretation can only be issued by the Pope himself or by the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law. It is not a new law since it was never promulgated. It is instead a private reply from a Roman dicastery to a particular problem presented to it. According to the article, the congregation did not explain, even in general terms, how it came to this conclusion which Dillon found quite curious since the conclusion appears to be in contrast to the consensus of twentieth century canonists who have commented on ligamen.
As Johnson stated, these issues which were addressed were certainly not meant to be the last word on this subject. It is entirely possible that any one of us might encounter a case in the future which may very well set a precedent and perhaps even bring about a new interpretation of Canon 1085.