point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point II. On the Firmness of Matrimony Insofar as It Regards the Bed, and on Divorce from the Bed
- Principles. - I. Spouses, by reason of the matrimonial bond, are bound to cohabit together and lead a common life. The reason is drawn from the very definition of matrimony.
II. Divorce, however, or separation from bed or habitation can take place for just causes while the conjugal bond nevertheless remains, so that neither party can enter another matrimony before the death of the other. This is declared by the Council of Trent, session 24, canon 8: If anyone shall say that the Church errs when, on account of many causes, she decrees that separation between spouses as regards the bed or habitation can take place for a determinate or indeterminate time, let him be anathema.
- III. The causes which render a divorce of this kind honorable are: mutual consent, grave danger to the soul or body, and the adultery of either party. You will understand these causes for practice thus.
- Mutual consent: namely, each spouse together can renounce the right proper to each as regards the bed, either for a time or in perpetuity, provided danger of incontinence is absent 1. Likewise, they can be separated also as regards habitation, either temporarily for reasons of business, or perpetually because of a desire for a more perfect life 2.
1 Laymann speaks well concerning this matter: On account of the danger of incontinence, it is not advisable for spouses to vow continence unless mature deliberation and long experience that both can easily be continent have been premised; and after the vow they ought to be separated as regards the bed (book 5, tract 10, part 3, chapter 7, nos. 1-2).
2 This can happen in two ways: first, through the entrance of either or both spouses into Religion; second, through the reception of sacred Order by one and either religious profession or at least a vow of continence by the other.
As regards the first, if either spouse, with the consent of the other, embraces Religion - and for this to be done licitly the consent of the Bishop is required from chapter Si vir 23, cause 27, question 2 - the spouse left behind, if young or suspected of incontinence, must also enter Religion; but if old and in no way suspected of incontinence, that spouse must at least emit a vow of continence in the world, and can be compelled by the Bishop in a suitable manner to live honestly if perhaps the promises voluntarily made are not observed. But if either spouse makes profession in Religion against the will or without the knowledge of the other, the profession is invalid, even if they had perhaps previously emitted a vow of continence by common consent, and the professed spouse will be restored to the spouse left behind (chapter Quidem 3 and chapter Placet 12, On the Conversion of Spouses). Furthermore, unless perhaps in making profession that spouse was unwilling to vow continence except dependently upon the validity of the profession, the spouse will be bound by that law, cited chapter Quidem, which holds the profession at least as a vow of continence; hence that spouse can neither demand the debt nor pass to other nuptials after the death of the other spouse. See Schmalzgrueber, book 3, title 32, nos. 24-28.
As regards the second, a wife by whose consent the husband receives sacred Orders is bound by the same laws as a spouse left behind when the other professes religious vows, namely, either she also must enter Religion or, if advanced in age, etc., at least emit a vow of continence. Nevertheless, she would have to assume a religious habit, even if she were an old woman and every danger or suspicion of incontinence were absent, if the husband initiated into sacred Orders were perhaps assumed to the Episcopate, as chapter Sane 6, On the Conversion of Spouses, expressly has it. See Schmalzgrueber, book 4, title 6, no. 38.
Although the vow of continence which wives left in the world emit in the aforesaid case is simple, and insofar as it is simple appears by its nature not to be a diriment impediment of matrimony, nevertheless it is certain among the Doctors, and expressly sanctioned in Canon law, that these women cannot validly enter another matrimony even after the death of the spouse initiated into sacred Orders; indeed, they teach that the same must be held even if the woman had not vowed continence when she gave her husband permission to receive sacred Orders. See Sanchez (book 7, disputation 40) and Schmalzgrueber (book 4, title 6, nos. 40-42). I said after the death of the spouse initiated into sacred Orders, because if the husband, without having received sacred Orders, had merely made profession in Religion, the wife, notwithstanding the vow of continence, would marry another after his death illicitly indeed, but not invalidly.
- Grave danger to the soul, if danger of perversion is present in one spouse because of the other; and grave danger to the body, if danger of life or mutilation threatens, or if cohabitation on the part of one toward the other becomes so burdensome that it is rendered morally impossible. This would happen if a spouse were compelled to suffer enormous or frequent cruelties.
- The adultery of either party, namely, such that it is: first, certain 3; second, voluntary, and not perpetrated through inflicted violence; third, not condoned either expressly or implicitly, for example, through the conjugal act 4; fourth, not mutual, because compensation would then exist. This is evident from the words of Christ, Matthew 5:32: Whoever shall dismiss his wife, except for the cause of fornication, makes her commit adultery, etc. But if this is licit for the husband, by the same reason it must also be licit for the wife 5.
3 Only moral certainty is required, as St. Alphonsus holds from the common opinion of the Doctors (book 6, no. 961). For the Doctors commonly observe that since carnal offenses are difficult to prove, witnesses are therefore not to be required for proving adultery, but conjectures are to be employed, and presumptions which they call violent suffice, by which a certain moral certainty is induced, namely, by which it can prudently be believed that the crime was perpetrated. Alexander III enumerates these presumptions in chapter Litteris 12, On Presumptions. Concerning these see, among others, Schmalzgrueber (book 4, title 19, nos. 116-117).
4 Understand this if the spouse knowingly and willingly exhibited services and signs of conjugal affection to the other spouse. For where only suspicion of adultery was present, the use of matrimony does not prejudice the innocent party; likewise, if while the suit is pending the judge commands that meanwhile the wife render the debt, or if the guilty husband compels the wife by grave fear to the use of matrimony.
5 Observe that, according to the common opinion of the Doctors, under the name of adultery here comes every division of the flesh, although it does not have the nature of adultery properly so called, such as sodomy and bestiality. I said according to the common opinion, for through a mere typographical error in St. Alphonsus (book 6, no. 960), Sanchez and Filliucius are exhibited as holding the contrary; and Pontius himself (On Matrimony, book 9, chapter 16, no. 5), although for a display of ingenuity he brought forward in opposition a petty argument which everyone despised, concluded that in practice one must not depart from the prior opinion, which, he says, is common among the Doctors.
The VV. observe here (page 806) that the typographical error spoken of in the Note is found not in the text of St. Alphonsus but in that of Hermann Busembaum; and this is most true. And indeed this error is seen not only in St. Alphonsus, that is, in the text of Hermann copied by St. Alphonsus (book 6, no. 960; in the preceding edition, by an erroneous transposition, no. 690), but also in Croix (book 6, part 3, no. 401) and in most editions of Hermann Busembaum, which commonly have: Bonacina against Filliucius, Sanchez, Perez, when it ought rather to have been written: Bonacina, Filliucius, Sanchez against Perez, who in fact allowed himself to be carried away by the inept petty argument of Pontius (On Matrimony, disputation 56, section 2, nos. 3-4). Moreover, if the VV. desire anything to be corrected also in the text of St. Alphonsus (l.c., no. 962), in most editions they have Sanchez, book 16, disputation 4, no. 2, cited, when book 10, etc., ought to be written. Again, since St. Alphonsus, for the opinion denying, cites also Abulensis after Sanchez, it would not be useless to add from the same Sanchez (ibid., no. 3) that Abulensis, previously contrary to himself, passed once and again to the affirmative opinion.
The VV. add (l.c.): Father Ballerini testifies that Pontius, for a display of ingenuity, brings forward a petty argument which everyone despised. But St. Alphonsus himself, who relates and approves the same petty argument, must be excepted from this everyone; and although Father Ballerini judges that opinion of the Holy Doctor to be altogether despised, perhaps it may have some weight with others.
Reply. I deny that St. Alphonsus relates or approves the petty argument of Pontius. The reason according to Pontius (book 9, chapter 16, no. 5) is that, since division of the flesh among several persons is said in law to be a cause of divorce, this must be understood of that division which is according to natural use; and this is established because by that division bigamy and irregularity are induced in law. But no base union outside natural use induces bigamy and the irregularity arising from bigamy. Perez (l.c.) indeed copied this petty argument, but St. Alphonsus does not have even a word concerning it; and therefore he too despised it. And deservedly the Holy Doctor despised that reasoning, as though the reason and nature of division of the flesh were generally to be sought from bigamy which induces irregularity. For if a spouse commits adultery, as Pontius acknowledges, the spouse divides the flesh, yet does not thereby become a bigamist and irregular. Say the same of one who sins with two or even several women, who certainly divided the flesh and is not thereby held a bigamist. On the contrary, if someone marries a widow, he does not thereby divide his flesh, and yet is considered a bigamist and irregular, just as also if he marries a woman who has been corrupted. Therefore the division of the flesh from which the irregularity of bigamy arises is neither the sole division of the flesh nor every division of the flesh, but a certain manner of division of the flesh; and therefore it is a foul sophism to deduce the absence of division of the flesh from the absence of bigamy.
Moreover, Pontius himself suggests that these things appear to have been brought forward by him for mere display, when he concludes: But although, speculatively speaking, what I said appears so to me, nevertheless in practice I judge that one must not depart from the prior opinion, which is common among the Doctors. Hence it happened that others numbered him among the defenders of the common opinion, for example, Schmalzgrueber (book 4, title 19, no. 103).
- Questions. - QUESTION 1. Is a husband, upon learning of his wife's adultery, bound to dismiss her?
Reply 1. It is certain that he is not bound by reason of the adultery, because divorce was conceded in favor of the innocent party, not as a punishment of that party. - Thus commonly the Theologians. - St. Ligorius, no. 965.
Reply 2. Sometimes the husband can be bound to dismiss an adulterous wife by reason of fraternal correction or of avoiding scandal 6; but this case is rare, both because other means can be employed to correct the wife or avoid scandal, and because grave scandal to be feared from the separation can excuse 7. Moreover, the wife, if cast out, would be exposed to greater danger, at least for the most part. - St. Ligorius, ibid.
6 Namely, lest the innocent spouse appear to consent, or at least connive, at the crime of the other. Nevertheless, other means are available also for avoiding this scandal.
7 A grave inconvenience can also excuse, for example, if the family would thereby be deprived of support, or the offspring of care and education, etc. If these things have force concerning the husband, a fortiori they have force concerning the wife, as St. Alphonsus observes with others (book 6, no. 964).
- QUESTION 2. Once divorce has taken place, can the innocent spouse compel the other to return?
Reply 1. Yes, if there is question of a non-juridical separation, because this is not confirmed by a sentence of the judge.
Reply 2. More probably, yes, even in the case itself of juridical separation. The reason is that a sentence of juridical separation is rendered in favor of the innocent party and therefore does not remove the right of recalling the other; nor is a new sentence of the judge needed for this 8. Nevertheless, an adulterous woman is not to be compelled to return whenever she can reasonably fear that she will be treated harshly, bitterly, or even cruelly. - St. Ligorius, ibid., etc.
8 It must be observed that although, according to common doctrine, the innocent party after juridical divorce has taken place can enter Religion or receive sacred Orders even against the will of the adulterous party, nevertheless this is not conceded to the adulterer who has been dismissed. Therefore the latter can neither enter Religion nor be initiated into sacred Orders unless the innocent party consents either tacitly or expressly or has already undertaken an irrevocable state; and if the adulterer should enter Religion, the adulterer could be recalled by the innocent party even after profession. Sanchez, book 10, disputation 10, nos. 12-13. St. Alphonsus, however, observes with Sanchez (l.c., no. 14) that even tacit consent suffices for this, namely, if the innocent party knows this and does not contradict when able; yet in that case the innocent party is bound neither to enter Religion nor to bind himself or herself by a vow of chastity. See Schmalzgrueber, book 4, title 19, nos. 124-126. St. Alphonsus (l.c.), after Sanchez (l.c., no. 16), concedes the same to the guilty party when the innocent party, having been asked, was unwilling to admit reconciliation, or even if the innocent party has not recalled the guilty party after two years have already elapsed.
QUESTION 3. After juridical separation because of adultery has taken place, is the innocent spouse bound to return to the other party recalling him if he himself afterward fell?
Reply. More probably, no. The reason is that the first adulterer was already altogether despoiled by the sentence of the judge of every right toward the innocent party. - St. Ligorius, no. 967 9.
9 Although St. Alphonsus calls this opinion much more probable, others, especially Canonists, such as Fagnanus, Reiffenstuel, Gonzalez, Schmalzgrueber, etc., and with them Barbosa, Koning, etc., hold the opposite opinion to be truer. Nor must it be omitted that St. Thomas (In IV Sentences, distinction 35, question 1, article 6, reply to objection 4), although he says that the man previously innocent ought not, according to the rigor of law, to be compelled to receive the adulterous woman, adds nevertheless that, according to the equity of law, the judge by virtue of his office ought to compel him so that he may guard against danger to his own soul and scandal to others.
- QUESTION 4. Can divorce take place by private authority?
Reply 1. Yes, as regards the bed, if a just cause is present, as was said above, and especially by reason of adultery, because the rights of matrimony can be denied perpetually to the unfaithful spouse 10.
10 This has force although the crime is occult; and even if, because proofs were lacking, the innocent party were compelled by an ecclesiastical judge to render the debt, nevertheless that party would not be bound to obey a sentence of this kind, which rested upon a false hypothesis. See Sanchez (On Matrimony, book 10, disputation 12, no. 34).
Reply 2. As regards habitation: first, yes, by reason of adultery, even if the crime is occult, at least more probably, because Christ, in permitting divorce for this cause, did not distinguish between public and private adultery. But for this it is required that the crime be certain and that no scandal arise from the separation which cannot otherwise be repaired 11. - Thus commonly. - St. Ligorius, no. 969. Several nevertheless say that divorce on account of occult adultery is not licit, because it is not licit to expose the reputation of the adulterer. Second, yes, also by reason of danger either to the soul or to the body, provided that danger is very grave. But in practice it is expedient that the counsel of a prudent man, especially a Confessor, be sought. The Confessor, however, must proceed very cautiously in this matter. Let him beware lest he too readily believe the complaints of wives against their husbands; and let him endeavor to restrain them and, insofar as it can be done, turn them away from divorce.
11 But scandal of this kind can scarcely be absent unless the marriage itself is occult; and therefore, outside this case, on account of scandal he could not dismiss the spouse even in the forum of conscience. And if he dismisses the spouse while proofs are lacking, he would have to be compelled to receive the spouse, lest an occasion be given to the malice of men to vex a perhaps innocent spouse by a dismissal of this kind.