Question — Merkelbach, Summa Theologiae Moralis
Question Two: On the Cohabitation of Spouses
S. Th., Suppl., q. 62.
963. Cohabitation, or the partnership of common life, is the other obligation to which spouses of themselves are bound from justice, and without which it is morally impossible to fulfill the offices pertaining to the individual custom of life, of which therefore it is an integral part. Of itself it comprises the partnership of bed, table, and roof.
964. Principle I. Spouses must preserve the communion of conjugal life, unless a just cause excuses them. - So can. 1128.
This is clear from the very nature of marriage, and from the ends of matrimony, which require an individual and inseparable common life. Hence it is read, Gen. II, 24, and Mt. XIX, 5: A man shall leave father and mother, and shall cleave to his wife; and I Cor. VII, 10: To those who are joined in matrimony, I command, not I, but the Lord, that the wife depart not from her husband.
Hence: 1° Neither of the spouses can depart, against the will of the other, for a long time, unless just causes are present, namely on account of the public good, or for feeding or protecting the family, or for avoiding damage.
2° If the husband must remain elsewhere for a long time, he is bound, if he conveniently can, to bring the wife there so that she may cohabit with him, or frequently to visit her. Similarly the husband of himself would be bound to accompany the wife, if necessity compelled her to change domicile.
3° Regularly the wife is bound to follow the husband changing domicile, even if he changes without a just cause, provided the cause is not base; indeed even if he departs far away and is going to remain there for a long time; - unless thus the wife would be exposed to grave danger of life or of very grave detriment, whence she would not be bound to follow a husband wandering here and there, unless she herself, before matrimony, knew that the man was a wanderer.
4° Communion of bed is to be understood as that which is required from the very nature of matrimony; whence it is not necessarily to be taken in the stricter sense, although it is generally so in use, but the partnership of the bedroom suffices, a distinct bed being used. Indeed it can subsist if the man and woman have distinct bedrooms joined to one another, although in practice, because of inconveniences easily arising, this use is less to be approved, as harmful to the union of minds.
965. Principle II. Divorce from bed and habitation can be licit for just causes, such as adultery of the spouse, grave danger of soul or body, and mutual consent. - This is certain from the definition of the Council of Trent, sess. 24, can. 8, against the Protestants who, while admitting dissolution of the bond on account of adultery, reject all causes of separation.
The principle is clear both from the words of Christ, who declares that this is sometimes licit (Mt. XIX, 29), and explicitly indicates adultery as a legitimate cause of separation (Mt. V, 31; XIX, 9), and from the Apostle, who supposes that this can be done for a legitimate cause (I Cor. VII, 11 sq.), and from the law (can. 1128-1131), and finally from the fact that cohabitation does not pertain to the essence of matrimony, but only to its integrity.
Separation can be made in perpetuity or for a time, totally or partially.
966. The first cause of separation is adultery of the spouse, according to can. 1129, § 1: "On account of adultery of the spouse, the other spouse, the bond remaining, has the right of dissolving the communion of life, even in perpetuity; unless he has consented to the crime, or given cause for it, or expressly or tacitly condoned it, or himself also has committed the same crime." This Christ himself explicitly declared, Mt. V, 32: Everyone who shall put away his wife, except on account of fornication, causes her to commit adultery (cf. XIX, 9). The reason is that, by breaking the promised fidelity, the adulterer has lost every right toward the other party as to conjugal offices.
But that it may confer the right of separation, adultery must be formal, consummated, morally certain, one to which the other has not consented or given cause, and neither condoned nor mutual.
It must be:
1° formal, that is, committed knowingly and freely;
2° consummated by copula itself with insemination, even if performed onanistically, to which are equated sodomy properly so called and bestiality, in which there is an equal reason of injury inflicted; but impure acts, even grave ones, without copulation do not suffice;
3° morally certain, so that it is truly established concerning it; otherwise the other cannot be deprived of the right of the one possessing, although physical certitude is not required, which in such matter is obtained with difficulty;
4° one to which the other spouse has not consented or given cause, as is explicitly said in can. 1129, § 1: he is considered to give cause who has deserted the wife or has rather often omitted to render the conjugal debt;
5° nor condoned: for if it has been freely condoned by the innocent spouse, the latter by that very fact has renounced his right of departing. But condonation can be made expressly or tacitly; "tacit condonation is had if the innocent spouse, after he has been made certain concerning the crime of adultery, has spontaneously conversed with the other spouse with marital affection; but it is presumed, unless within six months he has expelled or left the adulterous spouse, or has made a legitimate accusation" (can. 1129, § 2);
6° nor mutual: for the crime of one is compensated by the crime of the other; but it makes no difference which of the spouses first or more often has perpetrated adultery.
Let it be noted that the husband is not bound to dismiss an adulterous wife, unless it were the only means for her amendment, or for avoiding scandal lest he be thought a favorer of the offense because he retains her, nor are greater evils to be feared; but the wife probably is never bound to dismiss the husband.
967. The second cause of separation can be grave danger of soul or body, such as arises from the circumstances enumerated in can. 1131, § 1: "if the other spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he creates grave danger either of soul or of body for the other; if by cruelties he renders common life too difficult, these and other things of this kind are so many legitimate causes of departing for the other spouse, by authority of the local Ordinary, and also by one's own authority, if they are certainly established and there is danger in delay."
Concerning these things it must be noted:
1° "In all these cases, when the cause of separation ceases, the custom of life is to be restored. But if separation has been pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has elapsed" (can. 1131, § 2).
2° Rarely, on account of supervening heresy or apostasy, is separation expedient, from which greater damages often are to be feared for the spouses or for society; unless there were grave danger to the faith for the wife or offspring (Tit. III, 10).
3° Danger of soul is incitation or induction to grave sin, with grave danger of consent, especially if otherwise it cannot be removed (Mt. XVIII, 9; Lk. XIV, 26); but the mere occasion of sin does not suffice.
4° Danger of body can arise on account of the fury of the other party or from contagious disease, in which case separation from bed is licit, as was said in n. 961.
5° Cruelties are had if the spouse treats the consort cruelly, as if a husband pursues the wife with mortal hatred, prepares snares against her life, seriously threatens death or mutilation; but beating does not suffice, unless it is very grave and immoderate and repeated several times, or to be repeated in the future.
6° Troublesome cohabitation from continual quarrels and brawls, denial of food, abandonment in sickness, great neglect in administering goods, reduction to the condition of a more vile servant, etc., can also be a cause of separation, because thus the safety of soul and body is endangered.
968. The third cause of legitimate separation can be mutual consent: whether as to bed or as to habitation, whether for a time or in perpetuity.
From the words of Christ it is clear that this is licit unto perfection: Everyone who shall leave house... or wife for my name's sake, shall receive a hundredfold and shall possess eternal life (Mt. XIX, 29).
Hence: 1) If matrimony has not been consummated, each spouse has the right of choosing a more perfect state; indeed by solemn religious profession itself a ratified matrimony is dissolved, as was said n. 818, B.
- Perpetual separation from roof requires the intervention of the bishop, but not temporary separation, which is licit for a proportionate cause, as was said n. 964.
- Separation from bed, by mutual consent, can be made by one's own authority, but regularly it is not expedient except for a time, namely because of danger of incontinence, as the Apostle warns, I Cor. VII, 5: Do not defraud one another, except perhaps by consent and for a time, that you may give yourselves to prayer (or if another just cause exists); and return again to the same thing, lest Satan tempt you because of your incontinence.
969. Corollaries. - 1. Separation as to habitation, since it is of the external forum, regularly cannot be made by private authority or by the counsel of a confessor, but requires the intervention of public authority; whence a wife even maliciously deserted is not considered legitimately separated unless she has obtained separation from an ecclesiastical judge (comm. int., July 14, 1922); on the other hand separation as to bed is of itself hidden, and therefore can be instituted by private authority. Particular statutes are especially to be attended to; but from common law:
a) If it is a matter of embracing the religious or clerical state, a dispensation of the Holy See is always required, as was said in the preceding number;
b) If separation is made on account of adultery, a sentence of the Ordinary is required, unless the adultery is certain and notorious, in which case it is licit to depart by one's own authority.
c) If separation is made on account of other motives, it must be made by authority of the Ordinary, and only by one's own authority if they are certainly established and there is danger in delay (can. 1131, § 1); therefore, when the delay has ceased, recourse must be had to the Ordinary. But separation is to be decreed in administrative form, unless the Ordinary establishes otherwise ex officio or at the instance of the parties, and the same form is also to be observed in the second grade (comm. int., June 25, 1932).
- The innocent party preserves the right of recalling the dismissed party, provided the other party, with the express or tacit consent of the former, has not undertaken a state contrary to matrimony (can. 1130); nevertheless the other party would be excused from returning if he justly feared that grave cruelties would be inflicted upon him.
- Nevertheless the innocent party is not bound again to admit the other to the partnership of life, if perpetual separation has been legitimately made on account of adultery (can. 1130); but if it is a matter of temporary separation for other causes, "when the cause of separation ceases, the custom of life is to be restored; but if separation has been pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has elapsed" (can. 1131, § 2).
- "When 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 the children themselves, the Catholic education of the same always being preserved, has decreed otherwise" (can. 1132).
970. Practical observations. - 1. Since grave evils are accustomed to follow upon separation, the pastor and confessor should dissuade spouses from it as far as they can, unless certain causes are present which render it truly necessary.
- It belongs not to the spouses nor to the civil power, but to ecclesiastical authority alone, to examine the cause of separation and to pass sentence concerning it; wherefore the confessor should direct the spouse who wishes to propose a cause of separation to the ecclesiastical judge. The spouse, regularly through the pastor, must have recourse to the authority of the Ordinary.
- Spouses who, unaware of the obligation of having recourse to the bishop, because of grave motives think that by private authority or civil judgment they may institute separation, or already are separated, regularly are to be warned and are not easily to be left in good faith, both because often the motives are not sufficiently certain, and because of itself and ordinarily scandal is to be feared, especially if there is danger of a new civil union.
- As to the sacrament of Penance: a) A wife is not to be kept from the sacraments when it is publicly established that she was unjustly expelled by her husband; but the husband is not to be absolved unless he restores the partnership of life. - b) He who because of notorious adultery has withdrawn from the other party is not to be disturbed; but the guilty one is not to be admitted to the sacraments unless he has repaired the injury and scandal. - c) They are unworthy of absolution who, on account of an unhappy marriage, for example on account of mutual aversion, have separated by private counsel; unless it is established that they are in good faith. In this case, however, regularly they are to be warned, as was said, unless it were certain that the warning would be useless and at the same time certain that scandal or another graver evil is not to be feared.