§ 2. On The Legitimate Separation Of Spouses

2122. Principles. I. DIVORCE, or separation from bed or habitation, can be made for just causes, while the bond of marriage remains. - This is clear from Trent (sess. 24, can. 8): "If anyone shall say that the Church errs when she decrees that, on account of many causes, separation between spouses, as regards bed or as regards cohabitation, can be made for a certain or uncertain time: let him be anathema."⁶

2123. II. There are very many CAUSES OF DIVORCE, or of the separation of spouses as regards bed and habitation. This is clear from different places of canon law, against some Protestants, who acknowledged adultery as the only cause of this separation. - But the CAUSES enumerated by canonists can be reduced to THREE:

1. The first and principal cause, on account of which it is licit to make divorce, and indeed perpetual divorce, is the adultery of a spouse. - This is clear both from divine law, the Lord saying (Matt. 19:9): "Whoever shall dismiss his wife, except on account of fornication, and shall marry another, commits adultery"; and from canon law, cap. Significasti and cap. Gaudemus, de divortiis. - But it is REQUIRED that the adultery be: 1) morally certain; - 2) voluntary, and not perpetrated from violence brought upon one; - 3) not condoned, whether expressly or implicitly, e.g. by the conjugal act, or by other signs, exhibited by the innocent party conscious and mindful of the adultery, with the mind, for the internal forum, of condoning; - 4) not mutual, because then compensation would exist; - 5) consummated by intercourse, as is more probable to St. Alphonsus; - 6) committed without the consent of the coparty. - And here it must be noted that, from the more common and at least extrinsically more probable opinion of authors, under the name of adultery there is also understood every division of flesh, such as sodomy and bestiality.¹ Long-lasting and injurious desertion is also customarily equated with adultery.²

We said that it is licit to make divorce; for the innocent party is not held to dismiss the guilty party, unless this is necessary for correction and amendment, or for removing scandal; and in these cases also he is excused whenever he would prudently fear grave inconvenience from it.³ Nor indeed is some adultery admitted before nuptials and afterward disclosed a sufficient cause of divorce, unless injury is inflicted on the husband from it, as would be if the wife, when she married, had already been pregnant by another; for then, as one deceived and injured, he can remove from himself, by the authority of the Church, her who contrived fraud and dishonor for him. And this same thing seems to be said if the wife had given herself to prostitution.

Authors note besides the following: 1. A juridical separation having been made, the innocent spouse is not held to receive the adulterous coparty, although amended; for "on the one hand Christ has perpetually freed him from the obligation of cohabiting with an adulterer, and on the other hand charity does not seem, of itself, to oblige to so great a burden."⁴ - 2. Yet he can recall the adulterous spouse to himself, although juridically separated, because he can renounce his right; but it is scarcely to be counseled or prescribed to an adulterous woman that she return to the husband, on account of the frequent danger of bad treatment.⁵ - 3. If after the sentence of divorce it happens that the other spouse also commits adultery, it is more probable that neither is held to return to the coparty recalling; because by the sentence of the judge each was freed from servitude. Nevertheless, the judge ought to take care that they return to each other, so that they may better provide for the salvation of their souls and remove the scandal of others.⁶

2. The second cause of divorce is some grave danger of soul or body; by reason of which danger: 1) If one of the spouses slips into heresy or apostasy from the faith, which is spiritual adultery, it is conceded to the other to institute divorce, even perpetual, after the sentence of the judge.⁷ 2) If a spouse draws the coparty into sin, e.g. if he solicits that one to heresy, sodomy, adultery, etc., the innocent party can depart, indeed is bound if the danger is grave.⁸ 3) Finally, if from cohabitation there threatens grave danger of life or health, or if cohabitation becomes so burdensome that it is rendered morally impossible; for instance, if a spouse were compelled to suffer cruelties grave and frequent for his condition, or if the wife were expelled without cause.⁹

3. The third cause is mutual consent. From this consent spouses separate themselves licitly from bed, or even from habitation, whether for a time or in perpetuity. - Moreover, separation from habitation in perpetuity is not customarily permitted unless each enters Religion; or at least unless, when one professes Religion or receives sacred Orders, the coparty vows chastity. But this ought not to be done inconsiderately; rather, it is required that, all things having been well weighed, every danger of incontinence be absent, and offspring not need the care of parents, etc.; for the evangelical counsels do not free human beings from the duties by which they are bound by the law of nature.¹⁰

2124. Questions. QUESTION 1. By what AUTHORITY ought the separation of spouses to be made?

Resp. It is to be made, regularly speaking, by the authority of the judge, i.e. of the Bishop, whenever there is question of separation from the roof; because such separation is public and pertains to external governance; and although it remained hidden, nevertheless the authority of the Bishop would be required.

We said 1. regularly; for by private authority divorce can be made by an innocent spouse in the case of cruelty or danger of perversion, if there is danger in delay, and the judge cannot be approached, or perhaps the fact cannot juridically be proved. Likewise, it can be made by the husband, more probably, in the case of the wife's adultery, whether the adultery is public or hidden, provided it is certain and provided the separation does not bring public scandal with it. For it is said in law: "Wherever there is fornication, or suspicion of fornication, the wife is freely dismissed."¹¹ But in the case in which he were compelled by the judge to cohabit with the adulteress, he would indeed be held to obey, but by no means to render the debt.¹²

We said 2. whenever there is question of separation from the roof; for spouses, from their own authority and mutual consent, can be separated from each other as regards bed, provided danger of incontinence is absent, as is clear from the words of the Apostle (1 Cor. 7:5): "Do not defraud one another, except perhaps by consent for a time, that you may give yourselves to prayer; and return again to the same, lest Satan tempt you because of your incontinence." Recall the things said in n. 2103.

QUESTION 2. After juridical divorce has been made on account of adultery, can the spouses enter RELIGION, or the man receive SACRED ORDERS?

Resp. 1. The innocent spouse can, even against the will of the adulterous party, enter Religion or receive sacred Orders.

2. The adulterous spouse cannot enter Religion, nor be initiated into sacred Orders, unless the innocent one consents, or has already himself undertaken an irrevocable state; otherwise, if he received the priesthood or entered Religion, he could be recalled by the innocent party, even after profession. Nevertheless, the tacit consent of the innocent party suffices, e.g. if the innocent one, knowing that the adulterer wishes to change state, does not impede him, though he conveniently could; or if, when asked by the adulterer, he did not wish to admit reconciliation.¹³

QUESTION 3. After juridical divorce has been made, with which spouse are the CHILDREN to be educated, and at whose expense?

Resp. 1. Natural law being considered, all children are to be educated with the innocent spouse. Except if this one is an infidel or heretic, because then they are to be educated with the faithful spouse.¹⁴ But from civil law, children are generally handed over to the one who obtained the separation, unless, on account of the greater advantage of the children, the judge has established otherwise.¹⁵

2. The expenses of the whole education are regularly to be paid by the spouse who is in fault. Yet always in these matters the sentence of the judge is required, by which one must stand.

2125. PRACTICAL RULES. As regards spouses who, legitimate separation not having been sought, live separated, let the parish priest or confessor attend to the following: - 1) A woman whom it is publicly clear to have been unjustly driven away by her husband is not to be barred from the Sacraments; and the husband is not to be absolved unless he restores the consortium of life with the wife. - 2) He who withdrew from the coparty by reason of notorious adultery is not to be disturbed; but the guilty party is not to be admitted to the Sacraments unless he has repaired the crime and scandal. - 3) They are to be held unworthy of absolution who, on account of a matrimony unhappily begun, e.g. mutual aversion, have separated themselves by private counsel. But, scandal having been removed, if they are in good faith and do not wish to acquiesce when admonished, they are not to be admonished concerning this.¹⁶

2126. FROM CIVIL LAW, in force in many places, there can be had a judicial sentence of divorce or of separation from bed and from habitation, on account of various CAUSES, which are commonly enumerated as THREE, namely: 1. Adultery of the woman, and also of the man, if he kept a concubine in the house common to the spouses. 2. Cruelties or grave injuries brought by one spouse against the other. 3. Condemnation of one of the spouses to an infamous penalty.¹ - And here it must be NOTED that separation of bodies always imports separation of goods, but not vice versa.

Indeed, in several places, civil law permits not only that imperfect separation, or separation of habitation and goods, but also DIVORCE PROPERLY SO CALLED, namely as regards the civil bond, so that it becomes free for spouses to pass to other nuptials. And in that case, to the three causes of separation already numbered, in certain places there is added a fourth, namely mutual consent.

Wherefore it helps to report the following Documents of the HOLY OFFICE.

1. Response to the Bishop of St. Gallen: "The law of the Swiss Confederation enacted concerning status and civil matrimony sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and thereafter, are to be treated in lay tribunals according to the norm which is established in civil causes; and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recent enacted law, by which even marriages of Catholics can, under certain very light reasons, be perpetually severed and dissolved as regards the bond, so that litigating spouses of this kind, after the sentence of divorce of secular judges has been passed, can pass to contracting other marriages if they wish. Therefore it is asked: Whether Catholic JUDGES and ADVOCATES in lay tribunals of this kind can with safe conscience take up and defend, or know and judge, matrimonial causes? - Likewise, whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of matrimony as to be dissolved, or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, just as civil law in this case expressly commands and urges judges to judge and declare?"

In discussing this question, it must not be forgotten that the secular tribunals, whose office it is to judge concerning civil causes, are the same tribunals to which by the new law it belongs to know and judge matrimonial causes. But if, therefore, Catholic judges were forbidden to sit in tribunals of this kind, we would experience, to the great harm of citizens, that those tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

But the Sacred Congregation, on Wednesday, 3 April 1878, responded: "As regards Judges, let him recur in particular cases. - As regards advocates, let the responses already given to the Bishop of Southwark be given, namely Tuesday, place IV, on 22 May 1860, to the DOUBT: whether a Catholic advocate can defend the causes of the party brought to trial, against an actor seeking dissolution of the bond? The Response was: 'Provided that it is established to the Bishop concerning the probity of the advocate, and provided that the advocate does nothing which deflects from the principles of natural and ecclesiastical law, it can be tolerated.' And to the other DOUBT: whether it is licit to act the parts of advocate and actor, when the end of the lawsuit is simple separation, without any sentence drawing with itself the nullity of matrimony? The Response was: 'Provision has been made in the preceding'; and on Wednesday, 19 December of the same year: 'provided the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and table, and provided the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics, in that forum, act the parts of actor and advocate, and provided just causes of separation are present, in the judgment of the Bishop; and if besides he has anything of doubt, let him recur, setting forth all the circumstances and dispositions of the law.' J. Velamie, Notary of the Holy Roman and Universal Inquisition."²

2. Letter to all Ordinaries in French territory: "After the recently restored laws of divorce among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely whether it would be lawful for lay judges in causes concerning the separation of spouses to declare law, whether concerning the bond or concerning habitation only; whether for advocates and procurators to conduct causes of this kind before lay judges; whether for those to whom by law it pertains to appoint the official defenders, as they call them; finally, whether for syndics, commonly maires, to pronounce divorce.

"The Most Eminent Fathers, General Inquisitors together with me, after the matter had been maturely weighed, on Thursday, place IV, on 25 June 1885, judged that it should be decreed thus:

"Considering the most grave adjuncts of things, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes in France without being held to resign their office, provided they openly profess Catholic doctrine concerning matrimony and concerning matrimonial causes as pertaining to ecclesiastical judges alone, and provided they are so disposed in mind, both concerning the value and nullity of marriage and concerning the separation of bodies, about which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or excite one contrary to divine or ecclesiastical law; and in doubtful or more difficult cases, let each approach his Ordinary, direct himself by his judgment, and, insofar as there is need, recur through his mediation to the Apostolic Penitentiary."

"The Most Holy Father held this decree ratified; and therefore it is made known to all Archbishops and Bishops in France for their norm, by these letters which otherwise are not to be published. R. Card. Monaco."

3. Decree for excluding false interpretations of the preceding Letter:

"By some Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: 'In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in French Territory concerning the law of civil divorce, it is decreed thus: Considering the most grave adjuncts of things, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes in France without being held to resign their office'; it added conditions, of which the second is this: 'Provided they are so disposed in mind, both concerning the value and nullity of marriage, and concerning the separation of bodies, about which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or excite one contrary to divine or ecclesiastical law.' It is asked:

I. 'Whether the interpretation diffused throughout France and also printed is correct, according to which the judge satisfies the aforesaid condition who, although some matrimony is valid before the Church, entirely abstracts from that true and constant matrimony, and by applying civil law pronounces that there is place for divorce, provided he intends in mind to break only the civil effects and only the civil contract, and the terms of the pronounced sentence regard only those things? In other terms, can the sentence thus passed be said not to be contrary to divine or ecclesiastical law?

II. 'After the judge has pronounced that there is place for divorce, can the Syndic, in French, le maire, also himself intending only the civil effects and only the civil contract, as is set forth above, pronounce divorce, although the matrimony is valid before the Church?

III. 'After divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior matrimony is valid before the Church and the other party is living?'

"Thursday, place IV, on 27 May 1886. In the General Congregation of the Holy Roman and Universal Inquisition held before the Most Eminent and Most Reverend Lords, Cardinals of the Holy Roman Church, General Inquisitors, the above-written doubts having been proposed, and the Vote of the Lord Consultors having been had beforehand, the same Most Eminent and Most Reverend Lords ordered that response be made: To the first, second, and third doubt, Negatively.

"On the same weekday and day, report having been made concerning these things to Our Most Holy Lord Pope Leo XIII, His Holiness approved and confirmed the resolutions of the Most Eminent Fathers. Jos. Mancini, Notary of the Holy Roman and Universal Inquisition."

It seems useful also to add these decisions of the S. PENITENTIARY:

1. Response to a certain Bishop of Italy: "Most Reverend Lord. I have reported to the Eminent Major Penitentiary what you write concerning a certain Syndic of your diocese, who by force of his office would have to assist at the civil matrimony of someone already bound by another matrimony celebrated in the face of the Church; and I must, at the command of the aforesaid Eminent Penitentiary, signify to you that the aforesaid syndic can by no pact furnish his work to an act which is so greatly opposed to the sanctity of matrimony. Therefore, whatever the circumstances of the case may be, he ought altogether to deny his assistance, even though it would happen that for this reason he would be compelled to resign his office.

"From the S. Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the S. P."

2. Instruction to the Bishops of Italy, of 29 March 1885.

Q. Whether a CIVIL OFFICIAL can both assist at matrimony which they call CIVIL, and prepare and draw up the legal instrument of the same matrimony, although true matrimony did not precede, indeed although there is suspicion or even certainty that it will by no means be celebrated before the Church?

"R. It can be tolerated, provided civil officials in drawing up acts of this kind intend to exercise a merely civil ceremony, and perform or advise nothing against the sanctity of matrimony and the necessity of contracting it before the Church; indeed let them exhort to contracting it before the Church herself, having before their eyes the most holy laws of our religion and the letters of Benedict XIV, Redditae sunt Nobis, concerning which, for removing scandal, let them admonish the contracting parties. - But as regards the cases in which it appears that the faithful, approaching the civil ceremony, are badly disposed, and are not going to celebrate matrimony, which regularly ought to have been premised, before the Church, but are going to persist in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by ST. ALPHONSUS DE LIGUORI (Lib. 2, tr. 3, cap. 2, dub. 5, art. 3), concerning cooperators."³

From these things you will resolve: - 1. Matrimonial causes look only to the ecclesiastical forum, and therefore cannot, unless the Church permits this, be brought to the civil forum; thus from the constant doctrine of the Church.

2. The Church indeed permits, in various regions, that causes of this kind be treated in the civil forum, but always under the condition that nothing be done which is contrary either to divine or to ecclesiastical law.

3. Where legitimate and canonical causes of divorce are had (cf. n. 2123), spouses can seek separation of habitation and goods, advocates can promote it, and judges can pronounce it. Nor indeed is it licit for spouses to bring the cause to the civil forum before it has been defined by the ecclesiastical judge, since it looks to this judge alone to judge whether sufficient motives of separation are present. Nevertheless, if the spouses, the ecclesiastical judge having been passed over, present themselves to the civil judge, this judge can, on account of grave reasons, know their cause, and, the motives being just, pass a sentence of separation.

4. Divorce as regards the bond of matrimony contracted only civilly can be both sought and pronounced in the civil forum, as is clear. The same must be said concerning matrimony indeed before the Church, but invalidly contracted, provided that the sentence of the ecclesiastical forum concerning the invalidity of the matrimony has preceded.

5. The sentence of divorce by which the bond of a validly contracted matrimony is declared dissolved can neither be sought by spouses nor promoted by advocates. For actors in such a cause seek a thing manifestly unjust and impious. - Nor is it licit for the judge to pronounce a sentence of divorce, even if, while he pronounces it, he intends to abstract from true matrimony and to break only the civil contract, nor do the terms of the pronounced sentence regard anything else.

But whether this is licit if he openly manifests this mind of his and professes the true doctrine of the Church concerning matrimony, there are not lacking those who still move controversy. But to us it seems that it must altogether be denied. The reason is that the sentence of the judge, as regards its being and as regards its effects, depends in no way on his intention or on the declaration of intention, but on the law which he applies. Whence a sentence of divorce, whether the judge wishes it or not, is of itself, not otherwise than the law of divorce itself, evil and iniquitous, and it furnishes help and support to iniquity.

6. Whether a civil official can join by civil rite persons if one of them or each is already bound by the bond of true matrimony, there is not yet one opinion of all; nevertheless, from the above-cited document of the S. Penitentiary, it seems to be denied. But he can, on account of most grave reasons, assist at the civil matrimony of those who are held to be badly disposed, even if he foresees that matrimony will not be celebrated before the Church.⁴