Article — Noldin, Summa of Moral Theology
Article Two. On Separation from a Cause of One Party.
670. Perpetual separation. 1. The new Code admits one cause of perpetual separation, namely the adultery of one party.1 It is established both by divine law2 and by ecclesiastical law3 that because of the adultery of one party separation of spouses can be made.
a. If Christ permits that a wife (a spouse) can be dismissed on account of fornication, he grants that which belongs to spouses by the law of nature; for since by force of the matrimonial contract they are bound to cohabitation, the innocent party is exempted from this obligation as soon as the other party has injured the matrimonial contract through adultery.
b. For instituting divorce any foreign concubitus suffices, even that which is done through sodomy or bestiality, provided that the division of flesh with another occurs through the effusion of seed in another vessel; for the division of flesh is the proper cause of divorce, because through the division of flesh matrimonial fidelity is broken.
- These conditions are required so that adultery be a just cause of separation:
a. That it be morally certain; for in doubt no one is to be deprived of his right. Nevertheless it is not required that adultery be proved juridically, but most vehement suspicions suffice, which provide moral certitude, as if a wife already otherwise of bad reputation is found alone with a man alone in a place fit for sinning, or if a husband is made certain concerning the adultery of his wife by a most trustworthy person.
b. That it be perfect or consummated by carnal copula, without which there is no division of flesh.
c. That it be formal, not merely material without internal consent; for the penalty of divorce supposes a preceding fault.
d. That the other spouse did not consent to the crime or give cause to it. Since injury is not done to one who consents, the spouse does not have the right of departing if he or she consents to the adultery of the other party.4
e. That the other spouse did not expressly or tacitly condone it.
Tacit condonation: alpha. is had if the innocent spouse, after having been made certain concerning the adultery, voluntarily lived with the other spouse with marital affection; beta. is presumed if within six months he or she did not expel or abandon or accuse the adulterous spouse.5
f. That he or she did not also commit the same crime; in this case the injury is compensated by the injury, and the right of departing is lost.
- These circumstances of separation to be instituted because of adultery are to be noted:
a. The innocent party can, but is not bound to, dismiss the adulterous party. For the right of separating was granted in his or her favor, and he or she can renounce this favor.
The obligation of dismissing an adulterous wife can arise from scandal, namely where, if the wife persists in adultery, the husband comes under suspicion of consent to the adultery. But this scandal can generally be prevented by other means, so that scarcely ever can an obligation of dismissing the wife be established.
b. If the adultery is certain, the innocent party can either separate by his or her own authority or seek a sentence of separation from the ecclesiastical judge. If the adultery is doubtful, the sentence of a judge must always be invoked.
c. The innocent party is never bound to admit the adulterous spouse, whether the separation was made judicially or by his or her own authority; but he or she can admit or recall that spouse, unless, with his or her consent, the latter has assumed a state contrary to matrimony.6 But if he is justly recalled, he is bound to return.
A state contrary to matrimony is the clerical state through the reception of sacred orders and the religious state through religious profession. Therefore the guilty party cannot assume a state of this kind without the consent of the innocent party. Yet if the latter has chosen a state which renders the continuation of conjugal life impossible, even the guilty party can choose such a state. But neither can the innocent party assume such a state without having obtained the license of the Roman pontiff.7
1 In the old law also one spouse's lapse into heresy or apostasy from the faith gave the other party the right of departing.
2 Matt. 19:9.
3 Council of Trent, sess. 24, can. 7; Code, i.e. cn. 1129, 1.
4 Cn. 1129, 1.
5 Cn. 1129, 2.
6 Cn. 1130.
7 Cf. cn. 987 and cn. 542.
671. Temporary separation. 1. The causes of temporary separation are enumerated in this way in the new law:
"If the other spouse has enrolled in a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger either to the soul or to the body of the other; if by cruelties he renders the common life too difficult -- these and other things of this kind are for the other spouse so many legitimate causes of departing, by the authority of the local ordinary and even by his or her own authority, if they are certainly established and there is danger in delay."1
Not all causes of separation, but the chief ones by which separation can be done for a time, are enumerated here; concerning these the following things are to be noted:
a. What in the old law was a cause of perpetual separation, namely heresy and apostasy from the faith, now supplies a cause of temporary separation; to this is added a criminal and ignominious life.
b. Danger of soul is induced if a spouse tries to draw the partner to sin, e.g. to heresy or to other crimes. If the danger of falling is proximate and cannot be sufficiently removed by other means, the innocent party is bound to separate.
A husband is considered to draw his wife to sin also in this case, in which he supplies food to her from things taken by theft or unjustly acquired, because in this way he makes her a participant in his crime. Yet if the wife does not have from elsewhere that from which she may live, she can use those goods, because necessity excuses her. But if she has food from elsewhere, she cannot use those goods and licitly withdraws from her husband.
c. Danger of body arises from contagious disease, in our times especially from syphilitic disease, by which a spouse infects the spouse in the very use of matrimony; furthermore from severe and cruel treatment which renders cohabitation dangerous.
d. The following can render the common life too difficult:
Severe and harsh treatment.
How great the cruelty must be so that the other party acquires the right of separating must be determined by prudent judgment after considering the circumstances of places and persons. For the things which are considered light by wives of the common people can seem intolerable to a wife of more honorable condition.2 Thus insults and imprecations, even if frequent, are perhaps made little of by a woman of humble condition, but they can be most grave to a well-educated woman.
Continuous quarrels, brawls, inveterate aversion and hatred by which one party is borne against the other. The danger which threatens the goods of fortune of the wife, if this danger cannot be removed by another means.
The causes of separation must be known and approved by the ecclesiastical judge, who grants separation either for a certain time or indefinitely, until the guilty party has come to his senses. Only if the fault is established and there is danger in delay is it permitted to the innocent party to depart by his or her own authority.3
When the cause of separation ceases, the association of life must again be restored. Only if the separation was pronounced by the ordinary for a certain time is the innocent party not bound to return unless the determined time has elapsed; and if no determined time was established, he or she can await a new sentence of the ordinary.4
Once separation has been instituted, the children to be educated are with the innocent spouse; and if the other spouse is non-Catholic, with the Catholic spouse, unless in each case the ordinary for the good of the children themselves, with their Catholic education always preserved, has decreed otherwise.5
Note. These things must be admonished for practice.
a. It belongs neither to the spouses nor to the civil power, but to ecclesiastical authority alone, to examine the cause of separation and to pronounce its sentence. Therefore the parish priest or confessor must direct the spouse alleging a cause of separation to the ecclesiastical judge. Yet because today the faithful can scarcely be brought to have recourse to the ecclesiastical judge, it will often be better for the confessor to dissimulate this obligation before those who are ignorant of it, provided the cause of separation is certain. This dissimulation must especially be advised when spouses already live separated in good faith, either by their own authority or by the authority of the civil judge, provided that there is no scandal underneath.
b. The confessor must beware lest he easily believe wives complaining of cruelties and troubles from the husband, and lest he either counsel or permit separation as to habitation. For morose wives are accustomed to dissimulate their own defects, but greatly to enlarge the defects of the husband. Moreover the matter would become much worse if the wife, with the confessor permitting, left the husband, but he, with the help of the civil power, recovered the wife who cannot prove the cause of separation before a judge.6
c. Since from the separation of spouses so many and so great evils arise, such as hatreds, enmities, adulteries, it must always be the last remedy, to be used only in the greatest necessity. Wives, however, must continually be admonished that by entering matrimony they have contracted, on the one hand, an obligation of patience and meekness, and on the other hand, through the sacrament, have received the helps of grace for bearing the burdens of matrimony with equanimity.
1 Cn. 1131, 1.
2 Ballerini-Palmieri VI, n. 507.
3 Cn. 1131, 2.
4 Cn. 1131, 2.
5 Cn. 1132.
6 Cf. Genicot II, n. 558; Aertnys II, 537.