Article IV: On Asking for and Rendering the Debt

193. The use of marriage has the nature of a right and of a debt. For in the matrimonial contract spouses mutually hand over to each other the right to their own body, in order to its legitimate use through copulation of itself apt for generation.

194. Prop. 1. Neither spouse is bound, speaking of itself, to ask for the debt; although by accident one is sometimes bound, either from charity, e.g., to avert a danger of incontinence threatening the spouse, or from legal justice, because the public welfare is endangered unless offspring be born. L. n. 938. - The first reason is because anyone can yield his own right. The second reason is because in those circumstances the precept of charity toward one's neighbor and of legal justice presses.

195. Note. 1. By accident the man is sometimes bound to ask for the debt, namely if the wife tacitly exacts it; for instance, if she shows some indication by which she signifies a tacit petition; because in women, on account of innate modesty, such signs are held as a true petition. Wherefore the man rather renders than asks. Conversely, "a woman is not bound to render to the man unless he expressly asks; for since men are not ashamed to exact expressly, wives can well presume that men who do not expressly ask do not wish to oblige them to ask; indeed I judge that they cannot, because the husband cannot bind the woman to ask the debt with such great embarrassment on her part. Yet Sanchez rightly excepts, with St. Antoninus, Navarre, Sylvester, and Manuel, unless such embarrassment should sometimes rather be presumed to be on the part of the man than of the woman (which otherwise rarely happens); for instance, if she were of very great authority, or of a fierce condition, and the man very fainthearted and modest. Yet regularly (Sanchez well adds) the wife is not bound to ask, unless it is evident to her concerning this faintheartedness and shame of the husband." L. 298.

2. Hence "it is certain that ordinarily the wife is not bound to ask, because this is notably immodest for women. It is also certain that when the other spouse is in danger of incontinence, both husband and wife are bound to ask, in order to free the other from danger." But since more probably the spouse is then not bound to ask except from charity, "because where there is no express or tacit petition of the other spouse, there is no obligation of justice to render," "one is not bound to ask with great inconvenience; hence probably the wife is then excused from asking, if in this she would have to undergo great modest embarrassment." L. 229.

196. Prop. 2. The obligation of rendering the debt to a spouse seriously and insistently asking, speaking of itself and from its own genus, is grave.

Pre-note. 1. It is said seriously and insistently asking; for "they commonly agree that the wife does not sin by denying if the man asks kindly or remissly... Likewise, if the spouse asking, even insistently, yields to the prayers of the one denying, who denies with a just cause; otherwise he also would sin venially... unless the prayers were so importunate that the other seemed as if forced to yield; or unless there were danger of incontinence in the other; for then it would not be lawful, even by prayers, without grave cause, to turn him away." Speaking of itself; for by accident such obligation can cease, as will be clear from the following questions. From its own genus; for 1. "the wife does not seem to sin if she delays rendering for a short time, namely until night..., or if from night she delays until morning..., yet with danger of incontinence always excluded. But after copulation has been had in the day, she cannot deny at night." L. 940. - 2. "The one denying does not sin when the other asks immoderately, yet without danger of incontinence, and in this also all agree. Hence Laymann, etc., say that it is not mortal, after the third copulation has been had in the same night, to deny a fourth." L. 940. - 3. But whether it is grave to deny once or twice, see below n. 198.

The proof is because the conjugal debt is a debt from justice, and in a matter of great moment. Therefore if it is asked seriously and insistently, the obligation of itself and from its own genus is grave. Diana, tr. 6. de Matr. res. 178. n. 1.; I, 179. n. 1.; Sporer 506.; Laymann, l. 5. tr. 3. p. 3. c. 1. n. 1.

197. Corollaries. 1. The man or woman sins gravely if, against the will of the partner, he or she renders himself or herself impotent even by other lawful means, e.g., fasts, etc.; indeed, if otherwise one cannot render the debt, he lawfully does not observe the fasts of the Church. L. 942.; Billuart, diss. 4. art. 4. de matr. - 2. By reason of rendering the debt, spouses are bound to cohabit not only as to the house but also as to the bed, unless they are separated by consent, and then danger of incontinence and harm to education is absent. But the man can lawfully undertake some brief pilgrimage from a cause of devotion, or another honorable cause, even against the will of the wife; but not the wife, against the will of the husband. Indeed the man can also be absent for a long time, if this is fitting for the public good or for the family; thus commonly Sanchez, Castropalaus, Bossius, Laymann, etc. But Bossius says with Toletus and Sayrus that the man is then bound to lead the wife with him, if he conveniently can. But when the wife is bound to follow the husband, and when the husband is bound to lead her, see what was said concerning the fourth precept, t. 1. tr. VII. n. 13.; L. Homo Ap. tr. XVIII. n. 59. - But in that place the holy Doctor has these things: "The wife sins... if she unjustly refuses to follow the husband who changes domicile, even without sufficient cause, and even if he goes forth to distant parts, where he must remain for a rather long time; because if he had to return shortly, neither is the woman bound to go, nor the man to lead her, just as the man also is not bound if great expense were needed to lead her with him. Thus commonly. On the contrary, the woman is not bound to follow the man: 1. if such an agreement had been entered into in the betrothal, and no new and grave cause, not then noticed, had arisen; 2. if the man wished to lead her to an evil end; 3. if on the journey she would have to expose herself to grave danger of death, or of another grave harm; 4. if the man wished to go abroad. But whether the wife is bound to follow an exiled husband, some deny, but more probably they affirm...," tr. VII. 13.

198. Does a spouse who denies the debt once or twice sin gravely?

Resp. The first opinion says that even to deny once, or to delay the debt for one seriously and insistently asking, speaking of itself, is mortal, even when the danger of pollution is removed. The reason is that this seems matter sufficiently grave, both by reason of offspring, which can well be begotten from one copulation, and by reason of discord and danger of incontinence, which can follow from such denial. But the second opinion denies, provided danger of pollution is absent, because this in reality does not seem matter so grave as to constitute lethal fault. Several and grave theologians hold this opinion; whence concerning it St. Alphonsus, 940, says: "It does not seem improbable, since the gravity of matter depends on the estimation of men, and so many grave doctors judge this to be light matter; but they themselves say this on the supposition that danger of incontinence or great dissension is absent; otherwise, the procreation of offspring for that turn is very uncertain."

199. Is it a just cause for denying the debt, if more children are born than the spouses can support?

Resp. The first opinion denies: both because the procreation of offspring looks to the principal end of marriage, to which any inconvenience whatever must be postponed, for it is better that the offspring live poor than not exist at all; and because either the spouse would deny for a long time or sometimes. If for a long time, he would expose the other to danger of incontinence; if sometimes, he would deny in vain, for spouses by coiting more rarely conceive more easily. The second opinion affirms: both because the multiplicity of future offspring would yield to the harm of children already begotten, and because in all debts great difficulty excuses from payment. - Yet they commonly agree: 1. that there is an obligation of rendering if there is danger of incontinence in the other, which in fact will scarcely not be present if they lie in the same bed, and the other asks for the debt; 2. if matters were situated at that point that, because of the generation of new offspring, parents or offspring would have to be reduced to extreme poverty, then the conjugal debt could justly be denied; 3. if the wife denied the debt to a husband who consumed everything, and allowed her with the children to endure hunger and miseries, until he amended himself, she would not easily be accused of grave sin. L. 491.; Sporer n. 516.; Struggl n. 109.; Laymann, l. c. n. 16.

200. Is a spouse bound to render the debt to one insane or drunk?

Resp. "Navarre and others affirm, because a drunken spouse, or one made insane, still retains the dominion acquired over the body of the other; nor does insanity stand in the way of the procuring of offspring. But Busembaum, Laymann, Paul Laymann, Bonacina, Sanchez, and others very commonly and more probably deny... The reason is that although these retain dominion, nevertheless they are incapable of the use of dominion. Make exception, 1. if in them there is danger of wasting semen, because although they themselves sin, nevertheless an act materially evil is to be impeded. Make exception, 2. if someone were not universally insane, but only in one or another matter; or if he were only foolish, but not altogether deprived of mind; or if he asks while he has a lucid interval. But although there is no obligation of rendering to an insane or drunken spouse, nevertheless it is lawful to render to him, as the aforesaid authors commonly say, since the use of marriage is lawful of itself, and the offspring can be educated by the spouse of sound mind. Provided (it must be understood) that danger of scandal or abortion is absent. Hence Sanchez and Bossius well add that it is not lawful to coit with a furiously insane wife, unless by experience she is known to be sterile. He also would sin who joined spouses, both insane, to copulation, because he would be the cause that children would lack due education." L. 948.; Laymann, l. c. n. 9. It must be added that those conceived in drunkenness are very easily born prone to alienation of mind, to insanity and scrofula; and alcohol can infect even the ovule itself and the semen. To this is added that offspring can easily be born dull and deaf-mute. Wherefore a spouse is not bound to render to a drunken spouse. Antonelli, vol. 2. p. 205. n. 438.

201. Is it lawful to render to one asking illicitly with mortal sin?

Resp. If the fault is on the side of the act, for instance when the man wishes to exercise onanism or sodomy, or wishes to use marriage in a sacred or public place, or with evident danger of abortion, or with grave harm to health, if the man or woman, e.g., labors under an organic vice of the heart, in which case copulation could then cause sudden death, and this were established, cf. here nn. 184, 185, all agree that the spouse is not bound, nor able, to render without grave fault. The reason is that to render then is to cooperate in the sinful act itself. But no one can be obliged to sin. - If the fault is on the side of the one asking, for instance because he is bound by vow, asks for a depraved end, etc., there is controversy. The first opinion says not only that one can, but also is bound. The reason is that, although the spouse asks illicitly, nevertheless he does not ask unjustly, since he does not lose the right of asking because he exacts the debt with sin. But this kind of reason, as is clear, holds only for the case in which the spouse retains the right whole, as if he has made a vow of chastity; but by no means for the case in which he has lost this kind of right, as if he has committed incest. Cf. Laymann, l. c. n. 17., and here n. 214. The second opinion says neither is one bound, nor able. The reason is that if that conjugal act is illicit to the one asking, it is not lawful for the other spouse immediately to cooperate in that illicit act. The third opinion says that one can render but is not bound. One can; for the spouse rendering gives his work not to the sin of another, but to a lawful thing; for the sin of the other spouse is wholly subjective. One is not bound, speaking of itself; because a debtor is not bound to restore to the owner a thing which he is going to abuse gravely for sinning. "When the thing to be restored appears gravely harmful to him to whom restitution is to be made, or to another, it should not then be restored to him; because restitution is ordered to the utility of him to whom it is restored; for all things which are possessed fall under the notion of the useful." St. Thomas, 2. 2. q. 62. a. 5. ad 1. - But Lugo apud St. Alphonsus says that, since this obligation is only of charity, the debtor is not obliged to deny if he cannot deny without grave inconvenience, which will altogether excuse from cooperation in the material of sin, which rather is a permitting of the sin which the other commits. But it is said speaking of itself; for if it would be an occasion of other sins also for the spouse, of indignation, dissension, etc., with grave inconvenience of the other spouse excluded, he is then bound by reason of charity to render the debt. Cf. here n. 125 and following. Furthermore this third opinion is deduced as a corollary from the two prior ones; for each of those opinions is probable both intrinsically and extrinsically. - "Yet Sanchez and others well observe that in that case the spouse is bound to warn the one asking, who is bound by vow, to desist from the petition, provided he can warn without fear of great dissension, or indignation, or incontinence of the other; which inconveniences Sanchez and Bossius say are present for the most part." L. 494.; Struggl n. 105. Cf. here n. 127.

202. Is the other bound to render to one asking with only venial fault?

Resp. If the fault is on the side of the act, one can indeed render when a just cause is present, since any just cause excuses here from venial sin; but one is by no means bound, because since the act is illicit of itself, the other does not have a right to it. "Indeed he is truly bound to render if the one asking would have a just cause on his side for asking even in that way, for instance if he asked copulation in an unnatural position because the wife is pregnant, or he himself is corpulent, or otherwise there would threaten danger of scandal...; or if he asks during the time of menstruation or puerperium with danger of incontinence, according to what was said n. 917 and 925 toward the end." St. Alphonsus, n. 946.; Lessius, de Iust. et Iur. c. 4. c. 3. d. 13. n. 89. - But if the fault is on the side of the one asking, one can again render; for he himself gives his work to a lawful thing, and almost always there is also an extrinsic cause excusing from cooperation, or rather making the permission honorable, lest he displease the spouse. But one is by no means bound, speaking of itself and by reason of justice, because of the same reason just given; for neither is a debtor bound to restore a thing which the owner is going to abuse even lightly for sinning, but he can delay restitution. Indeed, charity rather obliges to this, yet it does not press with proportionate inconvenience of the spouse. Wherefore, such inconvenience being excluded, if from denial a far graver sin of the spouse would follow, e.g., hatred, quarrels, etc., then one would be bound to render by reason of charity; and therefore for the most part one is obliged to render. Laymann, l. c. n. 18. St. Alphonsus contradicts, who in this question, as also in the preceding one, simply affirms that the spouse both can and is bound to render the debt because of the reason explained above for the first opinion. Cf. here n. 125 and following.

203. As a spouse is bound to render the debt to one asking, is he also bound to admit touches and other incomplete acts which the other spouse may wish to exercise in the other, independently indeed of the conjugal act, but short of onanism or pollution?

Resp. St. Alphonsus affirms, l. c. n. 934. But it seems one must respond: negatively, by reason of justice. For the spouse, properly and strictly speaking, does not have a right except to asking for the debt of the conjugal act; but to other things he does not have a right, properly and strictly speaking, in the rigor of justice, except in order to the rendering of that debt. But by reason of charity, for instance to avoid the spouse's sin, to foster his love and the peace of the family, etc., a spouse can also be bound to admit those acts, unless, however, grave inconvenience is present, since charity does not oblige with grave inconvenience. Cf. L. l. 6. n. 946.

204. Prop. 3. The aforesaid obligation of rendering the debt does not press in certain cases, namely: 1. in the first two months; 2. if the other party has committed adultery; 3. if the one asking has committed incest with blood relatives of the other party within the second degree; 4. if there has been a pact concerning non-use of marriage; 5. when, because of grave danger to soul or body, divorce or separation from bed, or even habitation, is lawfully made; and this divorce indeed can also lawfully be made either for a time or in perpetuity because of adultery or by mutual consent.

205. Proof of the first part: The obligation of rendering the debt does not press in the first two months. "In the first two months after marriage has been entered into by words de praesenti, spouses are not obliged to render the debt by which the marriage would be consummated, because by the sacred canons, c. Ex publico, de Convers. coniug., in those two months, while the marriage is only ratified and not consummated, they can deliberate about assuming Religion: read Sanchez, lib. 2. de matr. disp. 22. But if they are certain that they do not wish to be Religious, they are still not obliged to render. Thus Praepositus in 3. p. q. 3. dub. 6. n. 47. apud Diana, p. 4. tr. 4. res. 33.; Sanchez favors this, l. c. n. 16., against Coninck, de Sacr. d. 26. dub. 4. concl. 2. n. 46., because that intention does not remove the right which they have during that whole two-month period, which right indeed was given absolutely, although for that extrinsic end of deliberating. After consummation of the marriage, at whatever time made, it will always thereafter be necessary to render; because there is no longer place for Religion." Tamburini, Explic. Dec. l. VII. c. III. Sect. 5. n. 25.

206. Note. The aforesaid faculty of entering religion "is understood," says St. Alphonsus, 958, "provided the marriage was not necessary for legitimating offspring, or repairing scandal, or the honor of the betrothed woman, who because of infamy would no longer be able to find nuptials. But Sanchez, etc., say that if, after the two months have passed, a spouse enters Religion, he would profess illicitly, but validly, because the Council in d. can. 6. pronounced indistinctly thus: If anyone says that a ratified and non-consummated marriage is not dissolved by the solemn profession of Religion of one of the spouses, let him be anathema. But for a marriage to be called consummated, penetration of the feminine vessel is not sufficient, but effusion of semen into it is required; thus commonly the doctors, etc. But either spouse can lawfully deny the debt within the two months, although he does not have the intention of entering Religion, because he uses his own right; thus commonly Palaus, etc. Yet a spouse would sin who contracted marriage with the intention of entering Religion." Cf. also n. 870 at the end.

207. After the two months have passed, if the marriage has not yet been consummated, can passage to religion still be made?

Resp. Affirmatively; "whether the cause why the marriage has not been consummated was that the other spouse did not ask, or that the other, when it was asked by him, denied... Because although after the lapse of the two months the spouse denying the debt sins against the spouse, nevertheless he still retains the right of entering religion, as being what Christ, in view of religion, conceded to spouses as long as the marriage has not yet been consummated, without determination of time." Schmalzgrueber, in tit. de Conversione coniugatorum, n. 9.

208. Proof of the second part. The obligation of rendering the debt is not had in the case of adultery. "For Christ, Matt. 5:32 and 19:9, said: Whoever shall put away his wife, except for fornication, and shall marry another, commits adultery. The same is clear from canon law, cap. Significasti, 4. tit. de Divortiis, where it is said: If it is notorious that the woman herself has committed adultery, the aforesaid man ought not to be compelled to receive her back. But the reason of the response is: because spouses in marriage hand over to each other the right to matrimonial use with the condition and obligation of mutual fidelity; therefore an adulterous spouse loses the right of asking for the debt, and the innocent party is not bound to render the conjugal debt to that spouse." Struggl 102.

209. Note. 1. By the name of adultery here is more commonly and more probably understood any division of flesh, although it is not adultery properly so called; such are bestiality and sodomy with another than one's own spouse. "For sodomy, when it is exercised with one's own spouse, is not a sufficient cause of perpetual divorce, because through it the flesh of the spouse is not commingled with the flesh of another subject. Yet the wife can separate for a time if the husband, having been warned by her, is unwilling to desist from this crime; as Babenstuber observes with Sanchez and Bonacina here, art. 6. n. 30., and others commonly." Struggl, tr. 12. q. 2. art. 6. n. 69.; Billuart, de matr. diss. 5. art. 2. Sect. 6. Thus also L. 962., who at the end adds these things: "but the authors of the first opinion (namely the one denying that it is lawful to make divorce because of sodomy or bestiality) could always reply that the flesh is truly not divided without natural copulation. Moreover Pontius well says that one must not recede from this opinion, since it is common, but that in reality it is not proved." Hence it is further inferred "that the mere will of committing adultery does not suffice for divorce, even expressed by words and other signs, nor other immodest acts, such as kisses, touches, etc.; indeed neither does pollution suffice which someone exercises with himself or another person. The same is true of lying with a dead woman, or a dead beast, as the doctors commonly observe. The reason of this is: because by such things marriage is not completely violated, nor is the flesh of the spouse divided with another subject." Struggl, l. c.; L. 960, 962.

2. The adultery must be morally certain; for no one is to be stripped of his certain right, which he possesses, because of a doubt or an opposed probability. L. 961. - The adultery must be altogether voluntary, not perpetrated because of violence inflicted, or fraud, or in good faith. Struggl 70, 75.; L. 966. - It must be not condoned, whether expressly or implicitly, for example through the conjugal act, or other services and signs of conjugal affection, which the spouse knowingly and spontaneously shows to the spouse. Wherefore, first: "If the innocent spouse through these things truly does not have the intention of remitting, in conscience he can always withdraw." L. 966. - Secondly: it is not lawful to institute divorce when one spouse is the direct cause of adultery committed by the other; e.g., if a man prostitutes his wife, or counsels adultery to her, or consents to it. The reason is because then by that very fact he remits the injury. Conversely, it is lawful for the man to institute divorce, even if indirectly and by accident he gave her a cause of committing adultery, e.g., by expelling her from the house, or by denying her necessary food. The reason is because then he is not judged to consent to the adultery of the wife. Struggl 72, 73.; L. 966. - Thirdly: "After the innocent spouse has once remitted, he will no longer be able to deny the debt by force of the prior adultery already remitted. It is otherwise if a new one has been added, because an injury once remitted cannot revive and give the right of denying, according to the common opinion of the doctors." Sporer 510. - Further, the adultery must not be mutual. For if the other also is adulterous, now he cannot lawfully deny the debt, because the injuries of adultery have now been compensated between them. Hence "it is inferred first, that divorce cannot be instituted even if one spouse committed adultery earlier than the other, or more often and more gravely than the other, e.g., one once with an unmarried person, the other ten times with a bound person, as Reiffenstuel teaches with Sanchez, Bosco, Pirrhing, and others, n. 82. The reason of this is: because in such a case, although there is not parity of offenses as to number or individual malice, nevertheless there is parity as to the specific notion of adultery as such, insofar, namely, as it is against the fidelity given to the other, and is a division of flesh with another person. Secondly, it is not lawful for the internal forum to institute divorce, even if the adultery of one spouse is public and of the other occult; and therefore he would sin mortally who, before God guilty of occult adultery, would repel the other spouse because of a similar public offense, or would deny the conjugal debt to that spouse (as they commonly teach with St. Thomas). The reason of this is: because for the internal forum proof is not required, but the truth known to God suffices." Struggl 77.

3. "The adulterous spouse loses the right of asking for the debt not simply, so that he can neither validly nor lawfully ask (as if he had committed incest with a blood relative of the spouse in the first or second degree); for an adulterer always lawfully asks, and the spouse lawfully renders the debt, according to all; but he loses the right only in this way, that he cannot validly and obligingly ask, so that the innocent spouse is bound to render; since, as was just said, the innocent spouse can justly deny it to him." Sporer 510. Indeed then the innocent spouse can enter religion, or even receive sacred orders; but the guilty one cannot, except with the consent of the innocent one, or unless the other has already assumed an irrevocable state. "Otherwise, if he wishes to receive religion or priesthood, although he has already assumed it, he can be recalled by that spouse, and is bound to render. But tacit permission suffices for this, as if the other, knowing that this one wishes to change state, does not impede, although conveniently able. And it also suffices if the other, having been asked, denies reconciliation, as Sanchez and several others say... But if after two years the adulterer is not recalled, he can freely enter religion, or be initiated in sacred orders, because then the other is judged to consent to him in this, the law so disposing in Authentica Sed hodie, C. ad L. Jul. de Adult." L. 960, 969.

4. "The adulterous spouse can both validly and lawfully exact the debt, that is, not only as lawful, but also as owed to him by right, as long as the innocent spouse, because of ignorance, makes no exception, or spontaneously, making no exception, is prepared to render... Thus the common opinion of the doctors. The reason is that the adulterer is deprived of the right of asking for the debt because of adultery; it is a certain penalty, to which the adulterer is not bound to condemn himself or inflict upon himself, no one acting or excepting against him; but, as I just said, by the will and quasi-sentence of the innocent spouse that penalty is to be inflicted on the adulterer. To this is added that the adulterous spouse, especially the man, for the most part cannot abstain from asking for the debt in the mode formerly customary, without coming under suspicion of the crime before the other spouse, or without other evils arising... Indeed, if the adulterous spouse notices that the innocent spouse does not have his adultery certainly ascertained, but, led only by slight suspicions, withdraws herself from rendering the debt, he will even be able to compel her to render the debt. For, as was said above, the innocent spouse cannot by the exception of adultery inflict that penalty by denying the debt unless it is established, not by slight conjectures, concerning a crime worthy of that penalty, namely adultery committed." Sporer 511.; Ithurriaga, Cas. 6.; Laymann, l. c. n. 4.

210. Can a spouse dismiss an adulteress by his own authority?

Resp. "Concina and Bellarmine with St. Thomas, suppl. q. 62. a. 3., absolutely deny; for the separation of spouses is a public action pertaining to external governance; whence it cannot be done by private authority without disturbance. Others with St. Antoninus, Laymann, and the Salmanticenses affirm if the adultery is notorious; but not if occult, because it is not lawful to betray the reputation of the adulterer. But Bonacina, Filliucci, Ledesma, Sanchez, and Sa absolutely affirm (with scandal precluded), whether the adultery is notorious or occult; for neither did Christ distinguish when he permitted dismissal of one committing adultery. This opinion is more probable to us, at least if the adultery is on the part of the woman; for it would be hard to compel a man to make the crime of his wife public in judgment with his own perpetual disgrace." Scavini, tr. 12. d. 6. after q. 7.; L. 968.

211. Is a man, having learned of his wife's adultery, bound to dismiss her; and conversely, a wife her adulterous husband?

Resp. To the first: negatively, by reason of adultery; for Christ indeed permitted, but did not command such dismissal. Affirmatively, by reason of fraternal correction; provided however, 1. he cannot correct in another way; 2. grave inconveniences are not feared from such dismissal. This is established from the general precept of charity. Again affirmatively, by reason of scandal, when the adultery is public; provided however, 1. one cannot meet the scandal in another way; 2. there is no just cause excusing, such as, e.g., on the part of the innocent one, his own grave inconvenience; on the part of the adulteress, a prudent fear lest she become worse. This is established from the same precept of charity. Hence rarely is the man bound to dismiss an adulterous wife. L. 963.

Resp. To the second: the first opinion says she is never bound. Not by reason of scandal, because a wife is never presumed to consent to the adultery of the husband; not by reason of correction, because it belongs only to a superior to correct by a deed, and the wife is subject to the man. - The second opinion, truer according to St. Alphonsus, says that the wife is sometimes bound to separate from an adulterous husband, because sometimes even a subject is bound, if he can without grave inconvenience, to correct a superior in the mode in which he can; and a fortiori a wife is bound to this, to whom it has now been conceded to leave an adulterous husband; provided however that there is probable hope of amendment, and the wife can depart without grave inconvenience. - Hence rarely, or very rarely, is the wife bound to this; "and therefore neither is she bound to deny the debt to him; all the more because by denying the man would become worse." L. 964.

212. Once divorce has been made by sentence of a judge, can the innocent one compel the other to return to him?

Resp. The first opinion, which Sanchez calls probable, says that by the sentence even the adulteress remains freed from the obligation of cohabiting and of rendering the debt. The second opinion, which St. Alphonsus calls common, teaches that the adulteress is bound to return, because the innocent one does not lose his right by a sentence, which is issued only as a penalty of the adulteress, not in her favor. But the doctors rightly say that rarely can an adulterous wife be compelled to return to the man, because of prudent fear of death or savagery easily to be inflicted by him. L. 967.

213. Is the innocent spouse bound to receive back the other now amended from adultery?

Resp. "Concina and Busembaum with Laymann and Perez affirm that he is bound to this from charity, if otherwise the other is in danger of relapsing. But I would by no means dare to bind the innocent one to this under fault, since on the one hand Christ the Lord perpetually freed him from the obligation of cohabiting with the adulterer, and on the other charity does not seem to oblige to so great a burden, that a spouse receive back the other who broke faith with him." L. 965.

214. Proof of the third part: There is no obligation of rendering the debt in the case of incest. This is established from Canon Law, cap. Transmissae, cap. Tuae fraternitatis, De eo qui cognovit consanguineam, and cap. Si quis viduam and following, c. 32. q. 7. For an incestuous spouse who has committed incest with a blood relative of the spouse in the first or second degree, as a penalty of his crime because of the affinity contracted with his spouse, loses the right of asking for the debt.

215. Corollary. One who commits incest with his own blood relatives is not prohibited from asking for the debt, because although he has committed a graver sin, nevertheless from that sin affinity with his own spouse does not arise, and therefore it is not in that way opposed to marriage.

216. Note. 1. The incestuous spouse cannot ask for the conjugal debt, although the incest is occult. Struggl 103.; L. 1074. For incest is very often occult; wherefore otherwise that law would be altogether useless. - In order that the penalty of losing the right of asking for the debt be incurred, the incestuous copulation must be perfect, at least on the part of the man. For odious things are to be restricted. But whether it is required that copulation also be consummated on the part of the woman, some probably affirm, others probably deny. "In doubt, one must presume for perfect copulation, because from things commonly occurring it is prudently presumed to have been present... And thus the semination of the woman is also always presumed when she has felt great pleasure in coitus, even if she did not notice semination." L. 1075.

2. But ignorance excuses from undergoing this penalty, even crass ignorance, even affected ignorance not improbably: whether of fact, i.e., if the spouse knew a blood relative, while ignorant that she was a blood relative, or so near; or of law, i.e., of human law; or of the penalty, i.e., if someone has knowledge of the law and fact, but does not know that there is a penalty of not asking. The reason of these things is that this privation is imposed in Canon Law only on one sinning knowingly, and the matter concerns an extraordinary penalty. Yet this is more commonly not admitted concerning affected ignorance, but only concerning crass ignorance. L. 1072, 1074.; Scavini, tr. 12. d. 5. c. 2. q. 3. - It also excuses from the same penalty if one is known by a blood relative through violence, even if the spouse sins gravely. The reason is that just as fear here excuses from ecclesiastical law, although it does not excuse from natural law, so it also excuses from the penalty imposed by that law. L. 1071.

3. The innocent spouse can lawfully ask for the conjugal debt from the incestuous one, as also render it, "for since he most fully possesses the conjugal right, he can use it either by asking or by rendering." Laymann, l. c. n. 15. Cf. here n. 201. - Someone can be restored in the lost right of asking for the debt by a legitimate superior. Besides the Supreme Pontiff, Bishops and Regulars have this faculty of dispensing. In this matter observe that a superior dispenses only in ecclesiastical law, but not in natural law or the right of a third party, which has been violated by the offending spouse by going to another; hence the innocent spouse will be able to deny the debt to the guilty spouse, even when he has obtained a dispensation, by reason of the adultery which is present in such incest. Scavini, l. c. q. 3. Cf. here n. 170.

217. Is one impeded from copulation because of incest also impeded from incomplete touches?

Resp. Negatively, because the law prohibiting copulation, since it is penal and odious, is not to be extended to touches. L. 933.

218. Can and is a spouse bound to render the debt to an incestuous spouse asking?

Resp. Some say one is bound; others say neither bound nor able. But others more commonly and more probably say that one is not bound, but can. The reason of the first is that the incestuous one is deprived of the right of asking; the reason of the second is that since the innocent spouse has the right of asking, a fortiori he has the right of rendering. But the reason that there not be the burden, especially for the wife, of always asking, and of avoiding all dissension, is sufficient for permitting the sin which the incestuous spouse asking commits. L. 945. Cf. here n. 125 and following, and n. 201.

219. Do parents who baptize or receive their children from baptism contract an impediment of asking for the debt?

Resp. "It is certain, 1. that they do not contract it if they baptize in necessity... It is certain, 2. that parents sin gravely who deliberately and without necessity baptize their children... It is certain, 3. that they do not contract kinship if the parents baptize through ignorance... 4. if they deliberately baptize their children outside necessity... a sufficiently probable opinion denies it, and several and grave doctors hold it... The reason is that in reality in no law (as Sanchez himself admits, and therefore calls this opinion probable and safe) is it found expressed that the supposed kinship is contracted." L. 150, 158.

220. Proof of the fourth part: The obligation of rendering the debt is not present if a pact has intervened concerning the non-use of marriage. Because neither party is bound to ask, but only to render the conjugal debt; therefore, if each party consents to not asking from an honorable cause, they can lawfully make a divorce as to bed and habitation. Struggl 66.

221. Note. 1. Spouses can rescind this pact by mutual consent, but one cannot against the will of the other, as is evident of itself. - The same pact is valid and lawful as long as danger of incontinence is absent; because the matrimonial contract is indissoluble until death, and no spouse can expose himself or the other to danger of incontinence; and therefore when danger of incontinence arises, such a pact does not oblige, but rather the matrimonial contract obliges to rendering the debt. - This divorce by mutual consent of the spouses can be made for a threefold cause: 1. because of continence from free choice, or because of a vow of it having been emitted; 2. because of the reception of a major Order; 3. because of religious profession. But it is said by mutual consent; for otherwise justice would be injured. Further, from Canon Law, as to a married man who wishes to pass to another state, the express and spontaneous permission of the wife is required, cap. Consuluit, de Convers. coniugatorum. Hence if the husband, without the wife's knowledge and against her will, should profess, the profession would be invalid and the professed one would be bound to return to the wife, and to render the debt to her asking, as is established in cap. Quidam, de Convers. coniugat. But he himself cannot ask for the debt, because he is presumed to have obliged himself to continence as much as he could. Yet if such a professed man had not intended to oblige himself except depending on the validity of the profession, that presumption in the forum of conscience ought to yield to the truth, and thus he could also ask for the debt, and, when the wife has died, marry another; as Laymann here, cap. 7. n. 4., commonly teaches with others. Finally, if without the permission of the wife he received sacred orders, although he received them validly, nevertheless he sinned mortally and incurred irregularity, as is established in Extravag. Antiquae, de Voto. Whence he can be recalled by the spouse, and having been recalled is bound to render the debt, but cannot ask because of the vow of chastity annexed to Sacred Order. Struggl 66.

2. Moreover, a married man is not to be ordained unless the wife vows chastity, cap. Coniugatus, de Convers. coniugator.; likewise a spouse is not to be admitted to sacred profession unless the wife giving permission, if she is young or suspected of incontinence, also professes religion (but there are not lacking those who say that then she is indeed bound to enter a Monastery, but not to profess, G. Dumas, v. 2. n. 43); or, if she is old and in no way suspected of incontinence, at least emits a vow of continence in the world before the Bishop and witnesses, so that there can be no doubt concerning its pronouncement. Alexander III, cap. Cum sis, 4. de Convers. coniugator.; Bouix, de Iure Regular., Paris 1857, t. 1. p. 531.; Scavini, tr. 12. d. 6. q. 7.; L. l. 6. n. 812.; Benedict XIV, de Syn. l. 13. c. 12. n. 10. and following. - "Yet the wife would have to assume the religious habit, although she were an old woman and every danger or suspicion of incontinence were absent, when the man initiated in sacred orders should perhaps be assumed to the Episcopate, as c. Sane, 6. de Conv. coniugat., expressly has (see Schmalzgrueber, l. 4. tit. 6. n. 38). But although the vow of continence which wives left in the world emit in the aforesaid case is simple, and insofar as it is simple seems of its own nature not to be a diriment impediment of marriage, it is nevertheless disputed whether, after the ordination of the man and when he is dead, they can validly enter marriage. The first opinion denies, and rests on Canon Law, c. Quia sunt, 10. d. 28., where it is said concerning such marriage: Those things which are badly joined, let them be disjoined. But the reason of this decision is that the Church, because of reverence for the Order truly assumed by the first man, renders the wife incapable for a subsequent marriage. St. Alphonsus, n. 812, calls this opinion the more common and very probable. - The second opinion affirms. The reason is because it is not established that such a marriage is invalid. For: 1. it is not invalid by reason of the simple vow of chastity emitted by such a wife; 2. nor is it invalid from a special law of the Church; for from the fact that spouses are ordered to be separated, it does not follow that their marriage is invalid; for separation can be ordered as a penalty of a second marriage contracted against vow and prohibition. The same St. Alphonsus says this is sufficiently probable in the same place." Gury-Dumas, vol. 2. n. 44. It is said after the death of the man initiated in sacred orders; because if the husband, without receiving sacred orders, merely professed in religion, after his death she would marry another illicitly indeed, but not invalidly, notwithstanding the vow of continence. G. Ball. 761. note 1.

222. Proof of the fifth part: The obligation of rendering the debt is not present when, because of grave danger of soul or body, divorce is lawfully made. - 1. The cause of divorce can be spiritual danger to the soul threatening from the companionship of the other spouse. This is clear from that general doctrine of Christ, Matt. 5:29: If your right eye scandalizes you, pluck it out and cast it from you. But the reason is: because the obligation of not sinning and of avoiding danger to eternal salvation is greater than the obligation of cohabiting with a spouse; therefore in such a case the prior obligation prevails. - 2. Likewise the cause of divorce can be danger to life, or another grave evil or inconvenience of body threatening from the companionship of the other spouse. This is clear from cap. Litteras and cap. Ex transmissa, de Restitutione spoliat. But the reason is because the obligation of cohabiting, which arises from the matrimonial contract, is not judged to extend itself to cases of this kind. Therefore. Struggl 81, 83.; L. 970, 973, 974.; Billuart, de Matr. diss. 5. art. 2. Sect. 6.

223. Corollary. 1. A spouse can make divorce because of heresy, "which holds from the Salmanticenses even if, diligence having been applied, danger of perversion is absent; for the laws do not distinguish, c. ult. de Conv. coni., c. Quanto, de Divort., etc. This was established as a penalty of infidelity. Under the name of heresy apostasy is understood much more. - Separation can also be made by one's own authority, even if the heresy is occult. But if the heresy has been declared by the authority of the Church, the innocent one has this, that he is not bound to receive back the converted party, and can also become Religious. If heresy is on each side, neither can separate, because this right belongs only to a Catholic. If the Catholic party falls into adultery, he is not therefore bound to return to the heretical party; for they are different offenses, one against God, the other against marriage. Hence then the heretical party can withdraw from the Catholic by reason of adultery, but the Catholic from the heretical party by reason of heresy, because each crime gives the right of separation." Scavini, tr. 12. d. 6. q. 7.; L. 974. - 2. A spouse can make divorce because of other crimes, "but only because of pernicious ones." L. l. c. "Also because of danger of other sins, which threatens from cohabitation, divorce is lawful for the innocent spouse when the other, even after admonition, does not desist from causing a similar danger of sin. Thus, therefore, the wife lawfully separates herself from a man who with her exercises sodomy or mere pollutions, or procuring, or who prostitutes her or keeps a concubine at home. Likewise from one who incites her to conceal thefts, or is a poisoner; because of such association of the man with the devil, the woman can rightly fear grave evils both of body and of soul, as Laymann and others everywhere observe with Coninck and Sanchez." Struggl 82. - 3. "Divorce is lawful if the spouse is leprous, infected with venereal disease, plague, or another contagious disease. If the man contrives death or mutilation against the woman. If because of his savagery, or anger and fury, grave blows and continual wounds are to be feared and endured, as is had in Canon Law, ll. cc. Moreover such divorce is not of its nature perpetual, as is divorce because of adultery; but when the savagery or another similar cause ceases, the woman is to be restored to the man... To make divorce because of the savagery of a spouse, the authority of an Ecclesiastical judge, or of the Bishop, or of the Consistory, is needed; as is clear from cap. Porro and cap. Significasti, de Divortiis; and the savagery must be proved by witnesses. The same is true concerning other dangers of body or soul, unless the danger itself is also in delay, as Laymann observes with Gutierrez and Sanchez." Struggl, tr. 12. q. 2. n. 83.; Scavini, tr. 12. d. 6. q. 7. and note (2).

Note. 1. "The doctors agree that, when juridical divorce has been made, the children are to be educated with the innocent spouse... When one of the spouses is an infidel or heretic, the offspring must always be educated with the faithful spouse, although the faithful spouse was at fault." L. 976. - 2. The dispositions as to divorce you have in the Italian Civil Code, art. 148 and following, and the French, art. 229 and following. - 3. From divorces several evils arise, both as to the spouses themselves, who perhaps are cast into grave danger of incontinence, and as to the children, if there are any, who can bear only with difficulty the division of the parents, and as to the rest, who cannot receive this without grave scandal. Hence the care of the confessor ought to be to advise reconciliation, and to procure it as much as he can. But if nevertheless they contend to make divorce without a most grave and proved cause, they are not worthy of absolution. Scavini, tr. 12. d. 6. q. 8. Mon.