Article — Merkelbach, Pastoral Questions
Article I: Concerning the Separation of Spouses
- I. A legitimate cause of separation is necessary.
a) "Spouses must preserve the communion of conjugal life, unless a just cause excuses them." (Can. 1128.)
b) Just causes of this kind admit great variety, and judgment concerning the sufficiency of the cause differs much according as there is question of perpetual or temporary separation, of total or partial separation.
- II. Causes of perpetual and total separation.
a) First of all, adultery of the other spouse.
"On account of adultery of the spouse, the other spouse, the bond remaining, has the right of dissolving the communion of life, even perpetually." (Can. 1129, § 1.)
- The reason is that, by breaking the promised fidelity, the adulterer has lost every right in relation to the other party with respect to matrimonial duties.
- But in order that adultery confer such a right of separation, it must be:
- formal: i.e., committed knowingly and freely.
- consummated by copula, even onanistic.1 Sodomy with a person other than the wife and bestiality are equated with adultery. For the reason of the injury inflicted is equal in all these cases.
1 Cf. Vermeersch-Creusen, cited work, t. II, n. 440, 2, b. - Capello, cited work, n. 826.
On the contrary, immodest acts, even grave ones, do not suffice, but without copulation.
- morally certain. For in this matter physical certitude is almost never had.
- that to which the other spouse did not give cause. (ibid.) He is judged to give cause to adultery who deserted his wife, or who often omitted to render the conjugal debt.
- not condoned expressly or tacitly. (ibid.) For if the fault of the adulterous party has been freely condoned by the spouse, now the innocent spouse by the very fact has renounced his or her right of departing.
"Tacit condonation is had if the innocent spouse, after having been made more certain concerning the crime of adultery, has dealt with the other spouse voluntarily with marital affection; but it is presumed, unless within six months he or she has expelled or deserted the adulterous spouse, or has made a legitimate accusation." (Can. 1129, § 2.)
b) Mutual consent for embracing religious life or for receiving sacred orders.
- III. Causes of total but not perpetual separation.
a) If the other spouse has given his or her name to a non-Catholic sect;
b) If he or she has educated the offspring non-Catholically;
c) If he or she leads a criminal and disgraceful life;
d) If he or she causes grave danger either to soul or to body for the other;
e) If by cruelties he or she renders common life too difficult;
"In all these cases, when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a certain or uncertain time, the innocent spouse is not obliged to this except from the decree of the Ordinary or when the time has elapsed." (ibid., § 2.)
- IV. Causes of separation from the bed only, whether perpetual or temporary.
a) It is licit to make a separation from the bed, even perpetual:
- From mutual consent on account of a grave cause.
- As often as the other spouse is not bound to render the debt.
b) Such a separation is necessary:
When the conjugal debt cannot be rendered and use of the common bed introduces proximate danger of sinning.
- V. By what authority separation ought to be made.
a) If there is question of embracing the religious or clerical state, dispensation of the Holy See is always required, as was said above at n. 269, b.
b) If separation is made on account of adultery, the sentence of the Ordinary is required if it is not public; otherwise it can be made by proper authority.
c) If separation is made on account of the motives enumerated above at n. 270, it must be made by the authority of the Ordinary. Nevertheless, it can be made also by proper authority, if those causes are certainly established and there is danger in delay. (Can. 1131, § 1.)
d) Finally, separation from the bed only is made by proper authority.
- VI. Whether the innocent party always retains the right of recalling the dismissed party.
Such a right always belongs to him or her, provided the other party, with the consent of the innocent party, has not assumed a state contrary to matrimony. (Can. 1130.) Nevertheless the other party is excused from returning if he or she deservedly fears grave cruelties to be inflicted upon him or her by the spouse.
- VII. Whether the innocent party is bound to admit the other party again.
a) If there is question of perpetual separation legitimately made on account of adultery, the innocent party is never bound to receive the dismissed spouse, at least from justice. (Can. 1130.)
b) If there is question of temporary separation, on account of the causes enumerated at n. 270, "when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a certain or uncertain time, the innocent spouse is not obliged to this except from the decree of the Ordinary or when the time has elapsed." (Can. 1131, § 2.)
- VIII. Care of the children after separation.
"Once separation has been instituted, the children are to be educated with the innocent spouse, and, if one of the spouses is non-Catholic, with the Catholic spouse, unless in either case the Ordinary, for the good of those children, always with their Catholic education preserved, has decreed otherwise." (Can. 1132.)
- IX. What is to be done by the parish priest or confessor with respect to separation of spouses.
a) As far as they can, they must dissuade spouses from making separation as to the roof, unless causes are present which render it truly necessary. For separation has grave evils as consequences.
b) In cases which require the intervention of the Bishop, the spouse who seeks separation regularly must have recourse to the authority of the Ordinary through the parish priest.
c) If, however, the penitent on one side has grave motives for instituting separation from the spouse, and on the other side is not conscious of the obligation of having recourse to the Bishop, he or she can be left by the confessor or parish priest in good faith, if it is foreseen that he or she can only with difficulty be brought to institute recourse, and no grave scandal is to be feared.
And this holds a fortiori for spouses already separated, if scandal is absent.