§ 2. On Imperfect Divorce, Or Separation Of Bed, Board, And Dwelling

677. Obligation of cohabitation. From the very definition of matrimony, which contains "an undivided manner of life," there follows the obligation of the spouses to live together. The same follows both from the words of Christ: "A man shall leave father and mother, and shall cleave to his wife,"³²⁰ and from the Code of Canon Law, c. 1128, which establishes: "Spouses must preserve the communion of conjugal life, unless a just cause excuses them." This obligation is an obligation of justice, since it arises from the matrimonial contract itself,³²¹ and it includes a) community under one roof, b) community of bed. Hence spouses are regularly bound not only to cohabit under the same roof, but also to sleep in the same chamber. Community under one roof and domestic cohabitation are necessary both for the suitable education of the offspring and for furnishing mutual help and solace in the difficulties of daily life. Community of bed, or at least of chamber, conduces to fostering mutual love and avoiding the dangers of incontinence. Hence neither spouse can depart from the other for a long time, against the will of the other, unless just causes are present, which are to be weighed after all the circumstances have been considered. But if the husband must remain elsewhere for a long time, he is bound to take his wife with him, if this can be done without grave inconvenience. For experience establishes that such a separation of spouses is exceedingly harmful both to the spouses themselves and to the offspring to be educated. Likewise the wife is bound to follow the husband when he changes his domicile, unless grave harms to the wife or the offspring arise from such a change. In practice, the confessor or pastor should indeed admonish spouses to observe faithfully community under one roof and of bed or chamber; nevertheless, unless grave sins or scandals arise from the separation, he should not urge such community excessively, but should leave the spouses in good faith.

³²⁰ Cf. Matt. 19:5.

³²¹ Cf. St. Alphonsus, Theol. mor., l. 6, n. 939, who, according to Sanchez, says: "It is certain that spouses are bound by an obligation of justice to cohabit in the same house, at the same table, and in the same bed."

678. Imperfect divorce, or divorce as regards bed and cohabitation, can licitly be effected for legitimate causes.

Thus it follows from the Council of Trent, which defines: "If anyone says that the Church errs when she decrees that, for many causes, a separation between spouses as regards bed or as regards cohabitation can be effected for a definite or indefinite time, let him be anathema."³²² Christ Himself teaches that a divorce of this kind is sometimes not only licit but even very meritorious, saying: "Every one that hath left house ... or wife for my name's sake, shall receive an hundredfold, and shall possess life everlasting."³²³

Imperfect divorce is customarily distinguished: 1. as perpetual or temporary, according as it is effected for an indefinite or a definite time; 2. as effected by private or public authority, according as it is instituted by the authority of either or both spouses, or by a judgment of the judge in administrative form;^323a as regards bed alone, according as the use of matrimony is excluded; or also as regards dwelling, according as the spouses dissolve common domestic life and habitation.

The causes for which imperfect divorce can licitly be effected are enumerated not taxatively, but principally: 1. carnal adultery; 2. spiritual adultery, that is, heresy or apostasy; 3. a criminal and ignominious life; 4. grave danger to soul or body; 5. mutual consent.³²⁴

³²² Sess. 24, can. 8, De matrimonio (Denz., n. 978).

³²³ Matt. 19:29. These words of Christ are to be understood either of a ratified matrimony or, if a consummated matrimony is involved, of a separation effected by mutual consent.

^323a Pontifical Commission, June 25, 1932 (Acta Ap. Sed. XXIV, 284).

³²⁴ Code of Canon Law, c. 1131, § 1.

679. 1. On divorce because of carnal adultery.

a) That divorce can be effected because of adultery committed is evident from the words of Christ: "But I say to you, that whosoever shall put away his wife, excepting for the cause of fornication, maketh her to commit adultery."³²⁵ The same follows from several texts of canon law,³²⁶ and is commended by natural law itself. For no one is bound to preserve fidelity toward one who has broken fidelity; and moreover, the certainty of offspring is endangered by adultery.³²⁷

Authors disputed whether, because of adultery, the innocent party can effect divorce by his own authority, or whether the sentence of a competent judge is still required. The better opinion seems to be this: Divorce as regards bed, or the denial of the conjugal debt, can be effected by one's own authority without the intervention of an ecclesiastical judge.³²⁸ Divorce as regards dwelling, however, ordinarily cannot be effected by one's own authority, unless there is question of certain and notorious adultery.³²⁹ For if the adultery committed is occult, divorce is better effected with the intervention of an ecclesiastical judge. The reason is that otherwise scandal and infamy could easily arise unjustly for the adulterer. In our days recourse to an ecclesiastical tribunal for obtaining divorce as regards dwelling (whether because of adultery or because of other reasons) is indeed greatly to be counseled, and this for many reasons; but sometimes it cannot be urged if the legitimate causes of divorce are certainly established and there is danger in delay.³³⁰ In practice diocesan statutes, if any have been issued concerning this matter, are to be observed.³³¹

b) Under the name of adultery there more probably falls any illicit carnal intercourse outside matrimony. Hence sodomy with a third person, bestiality, and onanistic intercourse permit divorce, but not other immodest acts, such as touches, looks, and kisses. Thus holds the far more common opinion.³³²

c) In order that a right of divorce arise for the innocent party from the adultery of the other spouse, it is necessary that this crime be:

α) morally certain.

Therefore neither does mere suspicion suffice, nor is strict juridical proof required; but it is necessary that no prudent doubt concerning its existence remain. The reason is obvious, namely, because no one can be punished except for a crime certainly committed, nor be deprived of the right of demanding the debt except because of fault certainly perpetrated.

β) formal, culpable, and freely committed.

Hence, for example, if a man, thinking his wife to be dead, has intercourse with another woman, he cannot, once the error has been discovered, be repudiated by his wife; likewise, if a wife is overcome by force, she cannot be dismissed by her husband.³³³

γ) not condoned, induced, or permitted.

Condonation of adultery can be effected both by explicit words and implicitly, namely, if the innocent party, knowing the adultery committed by the other spouse, voluntarily gives signs of marital affection, for example, if that party asks for the conjugal debt.

This tacit or implicit condonation is presumed in law if, within six months after the adultery became known, the innocent spouse neither expelled nor abandoned the adulterer nor made a legitimate accusation.³³⁴ - Likewise, the adultery of the wife cannot be a cause of divorce if the husband himself induced the wife to commit adultery, or even if he gave his consent.³³⁵ The reason is obvious, namely, because the husband then formally cooperated in the adultery of his wife and cannot take any advantage from his own shameful cooperation.

δ) not mutual.

For equal offenses are removed by mutual compensation.³³⁶ It makes no difference which spouse perpetrated adultery first or more often.

d) The innocent party can indeed effect divorce from bed and dwelling, since Christ Himself granted such a right; but very rarely is that party bound to use this right, namely, only when no other way is available for avoiding scandal or correcting the sinner.³³⁷ Generally, it is better that the adulterous party be reconciled to the innocent party.

e) The innocent party (even after a separation effected a long time before) does not lose the right to recall the adulterous spouse, who is bound to return, provided that peaceful cohabitation can prudently be hoped for,³³⁸ and that spouse has not already undertaken (with the consent of the innocent party) another state contrary to matrimony.³³⁹

f) The innocent party can, even against the will of the adulterer, enter religion (after a dispensation of the Holy See has first been obtained) or receive sacred orders; on the contrary, the adulterer cannot enter religion or receive orders without the explicit or implicit consent of the innocent party. But if the adulterer had nevertheless done this, that party could be recalled and would be bound to return to the spouse, notwithstanding the vow or order undertaken. The reason is that the matrimonial bond always subsists, and the innocent party cannot be deprived of his or her right. St. Alphonsus³⁴⁰ teaches that the adulterous spouse can enter religion or receive sacred orders: α) if the innocent party has first irrevocably undertaken the religious or clerical state; β) if the innocent party, knowing well the intention of the adulterous party, does not contradict it, although conveniently able to do so; γ) if the innocent party has utterly rejected every reconciliation sought by the adulterer; δ) if the dismissal of the adulterous party was already effected two years before and no recall has occurred. For in these and similar cases the consent of the innocent party is presumed. Today, however, no married person can be validly admitted to the novitiate unless permission of the Holy See has been obtained.³⁴¹

³²⁵ Matt. 5:32 and 19:9.

³²⁶ C. 4, § 8, X 4, 19; Code of Canon Law, c. 1129.

³²⁷ St. Thomas, Suppl., q. 62, a. 1.

³²⁸ St. Thomas (ibid., a. 3) says: "A man can dismiss his wife in two ways: in one way, as regards bed alone. And thus he can dismiss her as soon as the fornication of his wife is established to him, by his own judgment.... In another way, as regards bed and cohabitation. And in this way she cannot be dismissed except by the judgment of the Church. And if she has otherwise been dismissed, she must be compelled to cohabit with him, unless the man can immediately prove her fornication."

³²⁹ Cf. c. 4, X 4, 19, and c. 9, X 4, 1.

³³⁰ Cf. Code of Canon Law, cc. 1129 and 1131, § 1.

³³¹ See the diocesan statutes of Bruges in De Smet, De sponsal. et matrim., n. 261.

³³² Cf. St. Thomas, Suppl., q. 62, a. 1, ad 4; St. Alphonsus, Theol. mor., l. 6, n. 962.

³³³ Cf. c. 1, C. 34, qq. 1 and 2; c. 6 ibid.; c. 16, C. 32, q. 8.

³³⁴ Code of Canon Law, c. 1129, § 2.

³³⁵ Cf. c. 4, C. 32, q. 1; c. 6, X 4, 13; Code of Canon Law, c. 1129, § 1.

³³⁶ C. 6, 7, X 5, 16; Code of Canon Law, c. 1129, § 1.

³³⁷ Certain ancient particular councils, for example, the Council of Elvira in the year 300, commanded the dismissal of the adulterer. Likewise, in the Eastern Church priests must dismiss a wife who is notoriously adulterous, lest they be judged to connive at the sin of the spouse.

³³⁸ Cf. Blessed Albert the Great, who treats excellently of divorce because of adultery, in IV, dist. 35, aa. 3, 10, 12, 13.

³³⁹ Code of Canon Law, c. 1130.

³⁴⁰ Theol. mor., l. 6, n. 967.

³⁴¹ Code of Canon Law, c. 542, n. 1.

680. 2. On divorce because of spiritual adultery.

Spiritual adultery or spiritual fornication is the name given to apostasy or heresy by which, after matrimony was contracted, one spouse gave his or her name to a non-Catholic sect.³⁴² Divorce as regards bed and dwelling can be effected also because of this crime.³⁴³

The principal reason (but not the only one) is that from such apostasy or heresy of one spouse great harm is customarily imminent both to the other spouse and also to the offspring, especially if the apostate solicits the Catholic party to defect from the faith. Another reason is that the Church abhors the intimate association of Catholics with heretics and apostates. - By private authority it is not lawful to effect divorce because of this cause unless there is danger in delay,³⁴⁴ for example, grave danger of perversion; and if it has nevertheless been effected, the innocent spouse is bound to return to the other if the latter has recovered from the heresy. Urban III already expressly established this, and it is confirmed by the Code of Canon Law, c. 1131, § 2. If separation was pronounced by the local Ordinary³⁴⁵ for a definite or indefinite time, the innocent spouse is not bound to restore matrimonial life except by decree of the Ordinary or when the time has elapsed. Thus the Code, loc. cit.

It is also a sufficient cause for effecting divorce if a spouse has educated the offspring in a non-Catholic manner, as not rarely happens in mixed marriages.

³⁴² Cf. Jer. 3:8; Ezek. 23:37; c. 5, C. 28, q. 1. In this text St. Augustine permits divorce not only because of apostasy, but also because of other grave offenses; cf., however, Retract. 1, 18.

³⁴³ C. 6, 7, X 4, 19, and c. 5, C. 28, q. 1; Code of Canon Law, c. 1131, § 1.

³⁴⁴ Code of Canon Law, c. 1131, § 1.

³⁴⁵ C. 6, X 4, 19.

681. 3. On divorce because of the criminal and ignominious life of the other spouse.

This cause of divorce, which is also found in several civil codes,³⁴⁶ seems to require an ignominious habit; for example, it is present if the wife frequently indulges in complete drunkenness, if the husband is habitually addicted to homosexuality, and so forth. After true amendment, marital life is to be restored.

³⁴⁶ German Code, § 1568; Swiss Code, a. 139; Italian Code, a. 151.

682. 4. On divorce because of grave danger to soul or body.

Grave danger to the soul is present if one spouse constantly solicits the other to grave sin, for example, to theft, adultery, prostitution, sodomy, the education of the offspring in heresy, and so forth. For effecting divorce because of this cause, it does not suffice that a spouse furnish the other spouse merely an occasion of sinning; rather, it is required that divorce be, as it were, the sole remedy for avoiding grave sin.

Hence, for example, it is not lawful to effect divorce as regards dwelling (although it is lawful as regards bed) if the husband always exercises onanistic intercourse or abuses matrimony in another way, even if perhaps the wife thereby suffers grave temptations to consent. It would, however, be lawful for the wife to leave the conjugal home if the husband willed, for example, to establish a brothel and compel the wife to serve there. Before divorce as regards dwelling is effected because of danger to the soul, the confessor or pastor is to be consulted, since otherwise grave errors and grave inconveniences will scarcely be avoided.

To grave danger to the body can be reduced:

a) cruelties, which one spouse exercises against the other, whether this is done by words or by deeds.

Cruelties are required which are truly grave, with the condition of the spouses considered. Beating alone, unless it occurs several times and is grave, is not a sufficient cause of divorce among spouses of lower station. The matter is otherwise among spouses of a more cultivated condition. Nevertheless, those things which several older authors say concerning the beating of a wife in St. Alphonsus³⁴⁷ cannot be admitted, at least in our regions. Generally, in this matter the older authors are to be read with circumspection, because in their time beating was commonly employed as a punishment for many offenses. Today, however, beating is not rarely forbidden by civil law even for unruly boys in schools.

b) troublesome cohabitation, which is customarily produced by the perpetual quarrels and dissensions of spouses, by the habit of becoming drunk, by gross neglect of household affairs, by culpable squandering of a fortune, and so forth. It is self-evident that not every small trouble suffices for effecting divorce, but such trouble is required as renders common life intolerable.

c) a grave disease contracted through grave fault by one spouse and very dangerous to the other spouse.

Therefore three conditions are required: a grave disease, very contagious, contracted through grave fault. Such a disease is principally syphilis. The innocent spouse is not bound to render the conjugal debt to the other spouse who culpably contracted this contagious disease. In the case in which one spouse contracted this most foul disease from adultery - as customarily happens almost always - the innocent spouse can most certainly effect divorce, because adultery alone is already a sufficient cause for effecting divorce, as was said above. Even in the case in which a spouse contracted this disease without fault - which happens most rarely - the other spouse is not bound to render the conjugal debt, or can effect divorce as regards bed. The reason is that a spouse is not bound to render the conjugal debt with danger to his or her own life, such as would be incurred if carnal intercourse were had with a syphilitic spouse. Sometimes the innocent spouse not only can but is also bound to effect divorce (at least as regards bed) in order to avoid contagion,³⁴⁸ namely, if that spouse's life is very necessary for educating offspring already born, or if it is seriously feared that the offspring to be born from such intercourse will be infected with the same syphilitic disease, as customarily happens. If neither offspring already born is to be educated, nor offspring to be born is hoped for, nor does another extrinsic reason stand in the way, the healthy spouse can perhaps render and request the conjugal debt even with danger to his or her own life. The reason is that, with a good intention supervening, such an act would proceed from great charity. - In other grave contagious diseases which one spouse contracted without grave fault, for example, in consumption, cholera, leprosy, typhoid fever, and so forth, the healthy spouse can indeed deny the conjugal debt and effect divorce as regards bed, but it is by no means lawful for that spouse by his or her own authority to abandon the conjugal dwelling. The reason is, 1. because one ought not add affliction to the afflicted, and 2. because spouses owe one another solace and protection not only in prosperity, but also in adversity and especially in infirmity.³⁴⁹

³⁴⁷ St. Alphonsus, Theol. mor., l. 6, n. 972.

³⁴⁸ The physicians Bergmann-Capellmann (Pastoralmedizin, 18th ed., p. 322) write: "On the part of the sick party, a demand for intercourse here would be a dreadful assault upon the healthy party; on the part of the healthy party, more than charity would be required; in my opinion, madness would be required, to allow oneself to be infected with such a disease with so very great a probability. This may appear too severe; but he who has seen, and sees daily, what dreadful consequences this disease has, will agree with us."

³⁴⁹ Cf. in the Decretals of Gregory IX the title On the Matrimony of Lepers (l. 4, tit. 8).

683. 5. On divorce by mutual consent.

a) Perpetual divorce as regards dwelling can be effected by mutual, free, explicit consent (and not merely implicit consent) because of the choice of a more perfect state, namely, because of the reception of sacred orders and because of embracing the religious life. Several conditions, which are explained at length by Benedict XIV,³⁵⁰ were then prescribed by law. According to the current discipline, permission of the Holy See is required in both cases.³⁵¹

b) Temporary divorce as regards dwelling can be freely instituted by the spouses by mutual consent, provided that truly proportionate reasons are present, for example, for the sake of making a journey or conducting business. In practice, however, a divorce of this kind, if it is of notable duration, is greatly to be dissuaded, because grave harms are very rarely absent. For the education of offspring is rendered more difficult if the parents do not cooperate with united strength; the mutual love of the spouses is diminished and grows cold; great dangers of incontinence arise, and so forth. Since these things are so, as experience testifies, let the woman follow the husband who is compelled to be absent from the domicile for a longer time.

c) Perpetual or temporary divorce as regards bed can be effected by the mutual and free consent of the spouses without any restriction, if honorable reasons are present. For spouses can use matrimony, but they can also preserve continence by mutual consent. Indeed, the Apostle admonishes spouses sometimes to preserve such continence for a time.³⁵²

d) Denial of the bed, or at least denial of the conjugal debt, also becomes licit whenever one spouse gravely abuses his or her right or unreasonably requests the conjugal debt. The discussion will return below, at n. 695 ff., to denial of the conjugal debt.

Scholion. On the education of offspring after the separation of the spouses. Concerning this matter the Code of Canon Law, c. 1132, establishes: "When separation has been instituted, the children are to be educated in the custody of the innocent spouse, and if one of the spouses is non-Catholic, in the custody of the Catholic spouse, unless in either case the Ordinary, for the good of the children themselves, with their Catholic education always safeguarded, has decreed otherwise." Since the good education of the offspring is a matter of the greatest moment, it seems that the Ordinary should be consulted concerning what must be done if the civil judge has wrongly determined this education.

A dissertation on civil divorce would indeed be appended here, which in our times occurs daily more frequently and more harmfully; but civil matrimony and civil divorce are better treated together below at the end.

³⁵⁰ De syn. dioec., l. 13, c. 12, n. 11 ff.

³⁵¹ Cf. our Man. iur. can., qq. 204 and 321. Cf. Benedict XIV, loc. cit., n. 16.

³⁵² 1 Cor. 7:5.