Article Three. On Civil Separation.

672. State of the question. 1. From those things which were disputed above, nothing stands in the way of civil judges treating matrimonial causes of infidel subjects, provided they observe the statutes of natural law; likewise, the causes of marriages of the faithful in which there is question of merely civil effects; or if there is question of a merely civil matrimony; or if there is question of a matrimony indeed entered in the face of the Church, which nevertheless has already been declared invalid or dissolved by the sentence of an ecclesiastical judge; or finally if the judicial sentence is conformable to divine and canonical law, as when a separation or dissolution which the spouses seek unjustly and illicitly is denied.

In these last cases the civil judge indeed exceeds his competence, because he usurps jurisdiction which does not belong to him; but the sentence as to the matter or object is not contrary to divine or ecclesiastical law.

2. But it happens that civil judges in matrimonial causes issue sentences which are contrary to ecclesiastical or divine law, namely if they decree the separation of spouses where canonical causes of separation are lacking, or if spouses are compelled to cohabit where cohabitation is forbidden by divine law; likewise, if they declare valid marriages which the Church judges invalid, or if they dissolve marriages which are indissoluble by divine law. Now in these cases it is asked: a. whether it is permitted to a civil judge to pronounce a sentence of divorce according to the prevailing civil laws; b. whether it is permitted to the parties to seek civil divorce; c. whether it is permitted to an advocate to conduct a cause of civil divorce before the judge.

¹ Cf. Lehmkuhl, Das burgerliche Gesetzbuch des deutschen Reiches, 5 (Freiburg: Herder, 1900), p. 415 ff.

673. On the civil judge. A civil judge who conducts causes of divorce of this kind and gives sentence in them as if they pertained to the civil forum acts illicitly and unjustly, because he usurps ecclesiastical jurisdiction. But if he recognizes the power of the Church, the civil judge conducting a cause of divorce and pronouncing the sentence of divorce seems to act licitly, provided he observes these conditions: a. if he regards only the civil contract, i.e. intends only to break off the civil effects of matrimony; b. if he has a most grave motive for conducting a cause of this kind; c. if, for preventing scandal, he opportunely admonishes both the spouses and others that his sentence in no way regards the matrimony itself, but only the civil effects; d. if there is no special prohibition of the Church.

a. The action of the civil judge in this case is not intrinsically evil, but is an action indifferent of itself. For his sentence contains two things: that their matrimony is no longer considered by the civil power as a true matrimony, and consequently that a new matrimony which they would contract is not impeded by inflicted penalties; but neither of these is intrinsically evil. The spouses indeed abuse this sentence for dissolving a valid matrimony and attempting a new one; but this cooperation of the judge is licit from a most grave cause.

b. There are authors (Bucceroni, Gasparri, Matharan) who say that the sentence of civil divorce in this case is absolutely illicit as being intrinsically evil and repugnant to divine law. Their reasons are: the law of divorce itself is intrinsically evil and unjust; therefore a fortiori the sentence of divorce is evil and unjust; from divorce most grave evils follow: an erroneous judgment concerning the dissolubility of matrimony and also concerning the competence of the civil power in matrimonial causes gradually steals into the minds of the faithful; furthermore separated spouses are prohibited from restoring the society of life, and the prerogative of legitimacy is denied to their offspring afterward received; finally a new civil matrimony is permitted to separated spouses, to which all the rights and effects of true matrimony are granted, by which it happens that adulteries are fostered. This opinion is evidently confirmed from the decisions of the Roman congregations, since they establish the internal malice of that act.

c. But others (Ballerini-Palmieri, Lehmkuhl, Sabetti, De Becker, Genicot) do not hold the sentence of civil divorce to be intrinsically evil; but, after excluding a depraved intention, say that it is in itself indifferent. And indeed a sentence of this kind does not necessarily refer to the dissolution of the matrimonial bond, but only deprives the matrimony of the effects of a legitimate matrimony and asserts impunity for the spouses if they enter a civil matrimony. For just as civil matrimony can accede to true matrimony without affecting the matrimonial bond, so civil matrimony can be dissolved without its dissolution affecting the true matrimonial bond. This indeed can be admitted, even if the legislator and the spouses who seek divorce intend the dissolution of the matrimonial bond itself.

The following things must be noted regarding the arguments of the first opinion:

a. The intention of the legislator, who intends to dissolve the matrimonial bond itself, is not necessarily included in the sentence of divorce, but can be separated from it. And indeed the depraved intention of the legislator, by which he intends to bind the matrimonial bond itself, can be separated from the assistance which the judge furnishes to those contracting matrimony; therefore it will also be able to be separated from the sentence of divorce. Thus the civil law in the intention of the judge is not necessarily to be called unjust, since it must not necessarily be received in such a way that it declares the spouses dissolved from the bond itself.

b. From divorce most grave evils follow; but from this nothing else follows except that cooperation toward divorce, and therefore toward these evils, is licit only from a most grave cause. But a proportionately grave cause for cooperating is certainly present in this case, in which a matrimonial cause is offered to a Catholic judge for judgment which he cannot refuse without being deprived of office, but he cannot be deprived of office without harm following both to himself and to the common good, because a bad and impious judge would succeed in his place.

c. Finally, to remove the scandal of the faithful, the judge must declare to the parties that the sentence of divorce does not effect this, that the conjugal bond is dissolved, but only this, that the matrimony is no longer recognized by civil authority as a valid matrimony, and therefore no longer enjoys the rights of a valid matrimony.

674. On the responses of the Holy See. The question has rather often been treated in the Roman congregations, and several responses concerning this matter have been issued.¹

a. No general decree exists which settles this question; indeed, the Holy See has hitherto deliberately abstained from settling the question.

b. Several particular decrees exist, of which some proclaim the sentence of divorce illicit in France, while others proclaim that the same can be tolerated in Belgium.

c. The reason on account of which the Church has tolerated the cooperation of a judge toward civil divorce in some places, but has forbidden it in others, seems to be this. Namely, in this case there is question of cooperation in executing laws which are opposed to the rights and laws of the Church; cooperation of this kind, however, is altogether illicit when it redounds to the common harm of the Church. Now the judgment whether civil laws redound to the common harm of the Church belongs to the Church herself; therefore in particular cases recourse must be had to the Holy See.

d. From all these things this follows for practice: although it cannot be affirmed that the cooperation of a judge or syndic in civil divorce is certainly licit, this at least can be conceded, that it is not established that it is illicit and therefore to be prohibited to judges, unless the Church has declared it illicit. Therefore judges who exercise it in good faith are not to be disturbed unless the Church has prohibited it.

¹ Holy Office, 3 Apr. 1877, to the bishop of St. Gall, which orders judges in particular cases to have recourse; Holy Office, 27 May 1886, which prohibits the sentence of divorce for France; letters of the apostolic nuncio to the minister of the kingdom in Belgium, 14 Sept. 1886, where it is said that the prohibition issued for France is not to be extended to Belgium; S. Poenitentiary, 24 Sept. 1887, which tolerates the sentence of divorce in a particular case (of Lucon); S. Poenitentiary, 4 June 1890, which declares that the case of Lucon cannot be extended to other cases.

675. On spouses. a. If spouses do not intend to seek divorce so that they can pass to other nuptials, but only so that matrimony may be deprived of civil effects and they themselves may in this way be freed from a grave evil and inconvenience from which they cannot be freed in another way, this is permitted.¹

b. If they can obtain the intended end even through mere separation as to habitation and goods, it is not permitted to them to seek the sentence of divorce; for there is no reason for seeking it.

c. If spouses seek the dissolution of the bond itself, so that they can pass to other nuptials, it is not permitted to seek divorce, because they seek an evil thing and one repugnant to divine law.

d. Since matrimonial causes pertain to the Church, it is not permitted to spouses to seek civil divorce unless beforehand, from a canonical cause, they have obtained license of separating.

¹ To the question whether a husband can seek divorce from an adulterous wife, intending only to break off merely civil effects, when no other means is available for obtaining repudiation of paternity concerning adulterine children and their exclusion from the portion of legitimate offspring, the S. Penitentiary on 30 July 1892 responded: let the petitioner consult approved authors.

676. On advocates. a. If an advocate performs the parts of defender of the matrimonial bond, which is a true matrimony, there is no other difficulty except that the cause is conducted in an incompetent forum, namely the civil forum. But the Holy See has declared that cooperation in causes of this kind can be tolerated, "provided it is established to the bishop concerning the probity of the advocate, and the advocate does nothing which deflects from the principles of natural and ecclesiastical law."¹

b. If an advocate conducts the cause of divorce when the spouses licitly seek divorce, he licitly argues for divorce.

c. But if the spouses seek divorce either without a just reason or from the depraved intention of afterward entering a new matrimony, he certainly cannot undertake the cause without a most grave reason. But if a most grave reason is present, e.g. of avoiding notable harm, he can conduct the cause; for he is not necessarily bound to conform himself to the intention of the parties, and cooperation toward their sin is excused by a most grave cause.

¹ S. Officium, 19 Dec. 1860.