Remarriage after putative death of spouse (Canon law)

[psychonaut]

I have a question about how Catholic canon law would treat an unusual (but not unheard-of) marriage situation.

Say that two Catholics are married to each other, and the husband is involved in an incident during which he is believed to have died. For example, say the husband is an air force pilot who is shot down in a war, or maybe he becomes suicidal and is last seen jumping off a bridge. Even though no body is recovered, the available evidence is such that both the secular and ecclesiastical authorities pronounce the husband dead.

Fast-forward ten years. The widow has remarried. But suddenly the dead husband shows up very much alive. It turns out he survived the plane crash and was captured by the enemy, or that he faked his own death.

I have no doubt that the secular authorities wouldn’t be interested in pursuing bigamy charges, since there was no criminal intent or negligence on the part of the wife. There might be some paperwork to fill out as a formality, but they would let the second marriage stand.

But what would the church’s view be? I can imagine that the wife might be obliged to have her second marriage ecclesiastically anulled, as the church considers marriage to be “till death do us part”, and it was later proven that there was no death. Is this correct? If she refused to accept the anullment, wouldn’t the remarried couple be considered living in sin, and barred from communion? Would any children they have be canon-legally bastards? (I know that children they had before discovering the husband survived are OK, as children in putative marriages are legitimate even if the marriage is later discovered to be invalid.)

[scm1001]

my reading as a lay person is that you are correct in all your assertions. Her only chance is to get the first marrage annulled on some grounds.

for those interested a FAQ on catholic annulment can be found here

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[Nametag]

@psychonaut

I have a question about how Catholic canon law would treat an unusual (but not unheard-of) marriage situation.

Say that two Catholics are married to each other, and the husband is involved in an incident during which he is believed to have died. For example, say the husband is an air force pilot who is shot down in a war, or maybe he becomes suicidal and is last seen jumping off a bridge. Even though no body is recovered, the available evidence is such that both the secular and ecclesiastical authorities pronounce the husband dead.

Fast-forward ten years. The widow has remarried. But suddenly the dead husband shows up very much alive. It turns out he survived the plane crash and was captured by the enemy, or that he faked his own death.

I have no doubt that the secular authorities wouldn’t be interested in pursuing bigamy charges, since there was no criminal intent or negligence on the part of the wife. There might be some paperwork to fill out as a formality, but they would let the second marriage stand.

But what would the church’s view be? I can imagine that the wife might be obliged to have her second marriage ecclesiastically anulled, as the church considers marriage to be “till death do us part”, and it was later proven that there was no death. Is this correct? If she refused to accept the anullment, wouldn’t the remarried couple be considered living in sin, and barred from communion? Would any children they have be canon-legally bastards? (I know that children they had before discovering the husband survived are OK, as children in putative marriages are legitimate even if the marriage is later discovered to be invalid.)

From NULLITY of MARRIAGE, F. J. Sheed, 1959:

In Church law absence alone, even long absence, does not give
rise to a presumption of death: there must be some evidence
that the missing partner has died. But it need not be
absolutely conclusive–it will suffice if the accounts of
witnesses, for example, or the circumstances in which the
missing person was last heard of, convince the appropriate
Church authorities. If the party presumed dead is not dead,
then the original marriage still stands and the second union
is not marriage: for the man and woman to cohabit after the
discovery that the first partner was alive after all would be
the sin of adultery.

So, yes to everything; any children born after that would be illegitimate (technically not bastardi, but nothi, according to the Catholic Encyclopedia) and possibly not legitimable.

[Cunctator]

Extract from the current Code that deals with the process in the case of the presumed death of a spouse (Canon 1707):

§1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not regarded as free from the bond of marriage until the diocesan Bishop has issued a declaration that death is presumed.

§2. The diocesan Bishop can give the declaration mentioned in §1 only if, after making suitable investigations, he has reached moral certainty concerning the death of the spouse from the depositions of witnesses, from hearsay and from other indications. The mere absence of the spouse, no matter for how long a period, is not sufficient.

§3. In uncertain and involved cases, the Bishop is to consult the Apostolic See.