Chapter I: On Marriage as Contract

671. Errors to be refuted. Today errors concerning the matrimonial contract are multiplying. (a) Many, especially evolutionists and materialists, holding that man descends from a brute animal, contend that promiscuity prevailed among the first men, as among the other living things, so that men were mingled indiscriminately with women and women with men, as occasion presented itself; and that to this promiscuity succeeded polygamy and polyandry, and only after long ages did monogamy prevail.¹ (b) Yet many moderns, even among evolutionists, admit that monogamy is more perfect than the other matrimonial contracts, and therefore is to be retained, provided, however, that divorce be easily admitted, and that it be permitted to spouses thus separated to seek new nuptials.² (c) Yet not a few, especially among socialists, favor free union: according to them, the chief end of union between man and woman is mutual pleasure; therefore for this union mutual love is required and suffices: those who mutually love each other, by that very fact, have the right to cohabit together; when love ceases, the union must be broken off. But the offspring born from free union will be nourished and educated by the care of the civil State, without the intervention of the parents.³

¹ Lubbock, The origin of civilization; Morgan, Systems of consanguinity, affinity and of the human family; Mac Lennan, Studies in ancient history comprising a reprint of Primitive marriage, London and New York, 1886; Giraud-Teulon, Les origines du Mariage et de la famille, Geneva and Paris, 1884.

² Thus, among others, Naquet, Dumas, Paul and Victor Margueritte, and others enumerated below where divorce is treated.

³ A. Bebel, La femme dans le passé, le présent et l'avenir (translated from German by H. Ravé), 1891; B. Malon, Le socialisme intégral, Paris, 1892, vol. I, ch. 7; G. Renard, Le régime socialiste, 1898, p. 59; Ch. Albert, L'amour libre, Paris, 1900; and others whom Turgeon enumerates, Le Féminisme français, Paris, 1902, vol. II, pp. 259-288.

Against these errors we shall set forth Catholic doctrine: 1° concerning the nature; 2° concerning the properties of the matrimonial contract.

To weigh the nature of this contract, we shall show two things: 1° that marriage consists in a stable contract; 2° that the essence of this contract is to be placed in consent.

672. Thesis: By natural and divine law, marriage ought not to consist in a free and revocable union, but in a stable union apt for constituting a family. It is certain against socialists and other patrons of free union.¹

¹ Cf. Card. Billot, De Sacramentis, vol. II, th. 33.

Since our thesis is attacked by those who reject the authority of revelation, we shall first use historical and philosophical arguments, by which the way will be prepared for an exposition of Catholic doctrine.

673. 1° Historical arguments. The adversaries contend that the union of the sexes in antiquity was free and promiscuous², and therefore that the modern manner of contracting marriage, as introduced only by customs and by civil law, can and ought to be abolished.

² Their arguments are enumerated and refuted by G. Fonsegrive, Mariage et Union libre, Paris, 1904.

They argue: (A) from the laws of evolution: they suppose that man descends from a brute animal, and thence infer that the first men were not alien to the morals of brute animals, among which promiscuous union prevails, not stable union; (B) from the present state of uncultivated tribes, which, they say, retain the morals of primitive men; for among them, they say, there prevails promiscuity of the sexes, or traces of the same remain, such as: matriarchy, or the state in which the mother enjoys principal authority in the family; the practice of drawing the genealogy of children not from fathers, but from mothers; polygamy and polyandry, or the union of several women at the same time with one man or conversely; (C) from certain ancient facts, which seem to be traces of primitive promiscuity, as were sacred prostitution, which flourished in certain temples, and also the right of the first night or the practice of handing over one's own wife to guests.

674. But we reply that many of the things alleged are not universal facts, but exceptions, and from them it is not inferred that promiscuity of the sexes or free union once prevailed; but on the contrary it is historically established that already from the first times the union of man and woman was ordered to constituting a stable family.

(A) Evolution, to which the adversaries appeal, is not a fact, but a hypothesis which the most distinguished transformists admit to be by no means proved, especially if there is question of the origin of man, as was said in the Treatise on God the Creator, nn. 838-839. But among those who think that man descends from a brute animal, the most learned say that the first men were not given over to promiscuity, and prove this from the very laws of evolution. For, according to Darwin,¹ the apes from which many evolutionists assert that man arose do not indulge in promiscuity, but some are monogamous, others indeed polygamous. For among them, as among men, the greatest jealousy concerning females prevails, and the males fight with the greatest zeal against others in order that they may exclusively possess the females which they have joined to themselves. Therefore if promiscuity of the sexes had prevailed among the first men, these would have been inferior to the apes themselves, and there would not be ascent and progress, but rather regression: which indeed openly contradicts the laws of evolution.

¹ Darwin, Descent of man, P. II, ch. 19; in French, La Descendance de l'homme, Paris, 1893, vol. II, p. 392. Cf. Letourneau, Evolution du mariage et de la famille, Paris, 1888, ch. 3; Westermarck, Origine du mariage dans l'espèce humaine, Paris, Guillaumin, 1895, chs. 5-6; G. Fonsegrive, Mariage et Union libre, Paris, 1904, pp. 19-29.

675. (B) But from the morals of uncultivated peoples it is not only not established that the first men were given over to promiscuity or free union, but it is inferred that among them a stable contract of marriage prevailed. For if the testimonies of those are weighed who lived for a long time, and not for only a few months, among them, these things are worthy of note: (a) promiscuity does not exist among uncultivated tribes except very rarely, and indeed especially where most corrupt men from Europe have brought in corruption of morals; almost everywhere the family is held as the foundation of society and the protection of the tribe; wherefore, even where divorce and polygamy are permitted, the matrimonial contract is entered into as of itself stable; (b) likewise exogamy, or the practice of seeking a wife outside the family and tribe¹, the custom of acquiring a wife or of assigning a dowry to her, show the will of constituting a stable family; (c) by strict laws provision is made for the chastity of girls and wives²: in many regions they inhabit the most remote rooms of the house, lest they be seen by strangers; elsewhere their faces are disfigured by mutilations lest they please other men; generally girls remain separated from men until nuptials; those who are seduced before marriage, and their corrupters, are punished with severe penalties; and adulteries are altogether reproved and strictly punished; all of which things indeed are very alien from promiscuity and free union.

¹ Cf. Msgr. A. Le Roy, La Religion des primitifs, Paris, 1911, pp. 106-109.

² Fonsegrive, op. cit., pp. 21-29.

676. (C) The same is established from the history of ancient peoples. (a) The most ancient code of laws, enacted about the year 2200 before Christ by Hammourabi, king of Babylon, not only excludes promiscuity, but also supposes that monogamy already prevails. The matrimonial contract must be entered into publicly; a man cannot take a concubine unless his wife is infirm or sterile: then he goes to the maidservant whom the wife substitutes for herself; if the maidservant likewise is sterile, he can take another wife. Divorce indeed is permitted, at the nod of the man: but if he dismisses his wife without sufficient reason, he must restore her dowry to her, indeed sometimes furnish her some compensation. Adultery, incest, and rape are strictly prohibited under grave penalties.³

³ Mémoires publiés sous la direction de M. de Morgan, vol. IV, Textes élamites-sémitiques, 2nd series, by P. Scheil, Paris, Leroux, 1902, pp. 145-150.

677. (b) Among the Egyptians, although polygamy and divorce were permitted under some restrictions, generally the custom prevailed of taking one wife only, as Herodotus relates⁴; moreover free union was by no means recognized, but adultery was strictly prohibited by civil law. - (c) Among the Indians, fifteen centuries before Christ, one lawful wife was taken, who could never be dismissed, yet several concubines were permitted. But promiscuity was by no means admitted; for adultery was held as one of the three greater sins. Afterwards, however, license was given to men of dismissing a wife if she was sterile or had borne only daughters, or suffered from defects which the man could not tolerate.¹ (d) In the Chinese empire, according to the law of Confucius, only one lawful wife must be taken; divorce indeed is permitted to the man, but only for a grave cause determined by law. (e) Among the Greeks and Romans, notwithstanding divorce, monogamy prevails, and adultery even of the man is considered as something indecorous and shameful; illegitimate children are not members of the family, nor can they have a part in domestic worship. Yet concubinage under certain conditions is permitted by law.² How honorable marriage was held among the Romans is established from the manner in which it is defined among the old jurists:³ "the fellowship of all life, an undivided custom of life, a sharing of divine and human law."

⁴ J. G. Wilkinson, A popular account of the ancient Egyptians, London, 1854, vol. II, p. 224; Maspero, Histoire ancienne des peuples d'Orient, 4° ed., Paris, 1897, vol. II, pp. 502-503.

¹ La Mazelière, Essai sur l'évolution de la civilisation indienne, Paris, Plon, 1902, vol. I, Introd.; vol. II, pp. 15, 306, etc.

² F. de Coulanges, La Cité antique, l. II, chs. 2-3; Denis, Histoire des théories morales dans l'antiquité, Paris, 1856, vol. I, pp. 69-73. - At Sparta, according to the laws of Lycurgus, the same woman could be possessed by several brothers; cf. Fonsegrive, op. cit., p. 36.

³ Modestin., Digest., XXII, 2.

From these testimonies and very many others which could be brought forward, it is clearly established that among ancient peoples promiscuity of the sexes did not prevail, nor free union, but that union of man and woman which is apt for constituting a family.

678. The facts alleged by the adversaries do not necessarily suppose promiscuity. (a) They say indeed that matriarchy was in use among many tribes, and that genealogies of children were drawn not from men, but from women. - A fact of this kind was not universal, but prevailed only among certain tribes; it is rather easily explained from the fact that, among those peoples, the man was absent for a long time for the sake of hunting, fishing, or making war; wherefore children, whose father was sometimes uncertain, and who moreover cohabited with the mother longer than with the father, were accustomed to receive the maternal name. But from this it by no means follows that promiscuity or free union was in common use.

(b) Sacred prostitution, which flourished in certain temples, and also the right of the first night or the practice of handing over one's own wife to guests, and other things of this kind, are abuses which arise from innate lust and a false conception of hospitality, but they cannot be called traces of ancient promiscuity.

But the few facts of polyandry or promiscuity which are alleged among certain tribes have themselves by way of exception, and do not weaken the general rule of stable marriage¹: polyandry was had where women were fewer in number than men; promiscuity, where it existed, is rather easily explained from a certain corruption of morals, without its being necessary to suppose that the first men were addicted to this vice.

¹ This is testified by Westermarck, otherwise an evolutionist, op. cit., ch. 6, pp. 128-129: "It is naturally not impossible that, among some peoples, the relations of the sexes have approached promiscuity. But there is not an atom of proof that promiscuity has ever been a general phase of the social history of humanity. The hypothesis of promiscuity, instead of belonging, as Giraud-Teulon thinks, to the class of hypotheses which science may permit itself, has no real foundation, no scientific character."

679. 2° Philosophical arguments. From the very ends of marriage it is logically inferred that marriage demands some stability.

(A) The primary end of marriage is the procreation and education of offspring: for to this end the diversity of the sexes and conjugal society were instituted, that the human race might be propagated, as nature itself indicates; moreover, offspring having been conceived, by the law of nature the duty rests upon the spouses of rightly educating children, by providing them not only with food, but also with intellectual and moral nourishment, which the young could procure for themselves by their own powers only with difficulty and after a long time. But for each of these a stable union of parents is required², and a promiscuous or even free union does not suffice. For: (a) with respect to the generation of offspring, experience establishes that women who are mingled with several men rarely conceive; but free union, rescindable at will, given the mutability of the human will, often induces some promiscuity and voluntary sterility: for then pleasure rather than offspring is sought. (b) The right education of offspring requires still greater stability: 1) physical education: for in the last months of pregnancy, at the time of birth and lactation, the woman needs the cooperation of the man for providing for her own necessities and those of the offspring; 2) intellectual and moral education, for which the child needs not only the gentle love of his mother, but also the severe authority and prudence of his father.

² This St. Thomas lucidly sets forth, Contra Gentiles, lib. III, c. 122, where he shows, from a comparison between brute animals and man, that marriage among men ought to be stable. For he observes that animals remain together as long as is necessary for the education and instruction of the offspring, as is clear in certain birds, whose chicks cannot seek food for themselves immediately after they are born. "But it is manifest," he says, "that in the human species, the female would by no means suffice for the education of the offspring, since the necessity of human life requires many things which cannot be prepared by one alone... Again it must be considered that, in the human species, offspring does not need only nourishment as to the body, as among animals, but also instruction as to the soul; for other animals naturally have their prudences by which they can provide for themselves; but man lives by reason, which must come to prudence through the experience of a long time: whence it is necessary that children be instructed by parents as though already experienced; nor are those just born capable of this instruction, but after a long time, and especially when they shall have arrived at the years of discretion. For this instruction also a long time is required; and then also, on account of the impulses of the passions, by which the estimation of prudence is corrupted, they need not only instruction, but also repression. But for this the woman alone does not suffice, but in this the work of the man is more required, in whom there is both more perfect reason for instructing and stronger power for chastising. Therefore in the human species it is necessary to devote oneself to the advancement of offspring not for a short time, as among birds, but through a great space of life."

680. The Socialists indeed object that the duty of educating little children rests upon the State, which will gather all infants and hand them over to nurses to be educated.

Resp. Nature itself clearly shows that the work of physical and moral education is primarily to be performed by the parents themselves, insofar as this can be done. In truth, nature gave breasts to the mother for nursing children, strength to the father for seeking food and other necessities of life; to each parent, love at once tender and generous, by force of which they willingly hand over not only their own things, but even themselves and their own life for the welfare of the offspring. The same can be said of moral education: for there is implanted in parents a certain natural instinct and love, by force of which they are able to look into the mind of their children and detect their inclinations and direct them to the good; moreover, by a certain native inclination, children more willingly obey the commands and counsels of their own parents than of strangers. Therefore the duty of educating children rests primarily upon parents, and naturally flows from the very act of generation, and therefore supposes a union of itself stable.

681. (B) The secondary end of marriage is the mutual help of the spouses and the remedy of concupiscence. (a) By a certain natural instinct man and woman desire to be joined to each other by a special bond of love, "so that, one being helped by the aid of the other, he may more easily bear the inconveniences of life and sustain the weakness of old age."¹ The reason is because man and woman complete each other not only in order to the generation of offspring, but also with respect to mutual assistance and solace: the endowments of one are, as it were, the complement of the qualities of the other; therefore man by a certain natural instinct seeks the society of woman, who herself is delighted by the society of man. But they cannot provide this mutual help to each other unless by a contract of itself stable they are able to constitute a family and perceive the lawful joys of the family.

¹ Catech. Rom., On the sacrament of matrimony, n. 12.

682. (b) Another secondary end of marriage is to soothe and restrain concupiscence. In the state of fallen nature, concupiscence often burns forth, and only with difficulty is it contained within the limits which both the health of the body and the honesty of morals demand. Now stable marriage checks and restrains concupiscence within the limits of honesty. On the one hand, through the lawful use of marriage the ardor of concupiscence is soothed; and on the other, copula is had only with the person into whose body a lawful power has been handed over, to whom fidelity is owed in marriage, and indeed in that manner which is apt for procreating offspring. - But if free union revocable at will is admitted, concupiscence, far from being tempered, is increased not a little by the hope of entering new unions and experiencing new pleasures, with the greatest detriment to body and soul.²

² In this matter there is a great difference between man and brute animal: animals, led by instinct, mate only at certain times; but man experiences libido at every time, and only by the exercise of right reason and will can he check the abuse of venereal delight.

Therefore, having inspected the ends of marriage, whether primary or secondary, it is clear that conjugal union ought not to be promiscuous or free, but to enjoy that stability which is required for constituting a family.

683. 3° It is confirmed by theological arguments. (a) For God, after the first man had been created, seeing that it was not good for man to remain alone, made for him a help like himself. Therefore He took one of the ribs of sleeping Adam, and built it into a woman and brought her to Adam. He said: "This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken from man. Wherefore a man shall leave his father and mother, and shall cleave to his wife; and they shall be two in one flesh."¹ For there especially five things are declared: 1) the formation of the woman made by God, that she might become the companion of the first man and a help like him; 2) the intimate union which ought to exist between man and woman both for the generation of offspring and for the fellowship of life; 3) yet a certain dependence of the woman upon the man, because she was taken from the man; 4) the unity of the matrimonial bond: for they shall be two in one flesh; 5) the stability of the same: a man shall leave his father and mother and shall cleave to his wife. Deservedly, therefore, Leo XIII says:² "That union of man and woman, in order that it might respond more aptly to the most wise counsels of God, even from that time bore before itself two chief properties, and these especially noble, as though deeply impressed and inscribed, namely unity and perpetuity."

¹ Gen., II, 18-24.

² Encycl. Arcanum.

(b) We indeed admit that this excellent form of marriage was adulterated among the Jews themselves, chiefly through polygamy and divorce. Nevertheless vague and free unions were strictly prohibited; thus girls who, at the time of the nuptials, were found to have lost their virginity were punished with death, as were those who committed adultery.³ For the union of spouses, even when several wives were permitted, was ordered primarily to procreating children and constituting a family, as is established from the whole history of the Israelite people, among whom stable families were held as the safest protection of the nation.

³ Deut., XXII, 20-22.

(c) But Christ recalled Christian marriage to its ancient unity and indissolubility; for, having been asked whether it was permitted to put away one's wife, He responded that this was not permitted, because God from the beginning said: "For this cause a man shall leave father and mother and shall cleave to his wife, and they shall be two in one flesh. Therefore now they are not two, but one flesh. What therefore God has joined together, let not man separate."⁴ This also St. Paul teaches, asserting that the woman who, while her husband lives, has been with another man is an adulteress¹, declaring the unity of marriage thus:² "Let each one have his own wife, and let each woman have her own husband." Now the unity and indissolubility of the matrimonial contract altogether exclude vague and free unions.

⁴ Matt., XIX, 4-6.

¹ Rom., VII, 3.

² I Cor. VII, 2. - This is proved more fully below, nn. 709, 716 sq.

(d) The Church not only retained this doctrine of the Master, but also strove with all its powers to bring it into practice, unceasingly teaching that nuptials are to be entered into not for the sake of lust, but for procreating and educating children in a Christian manner, and also for mutual help and solace. This, among others, St. Augustine declares, writing of wives:³ "For they were married for this purpose: that that concupiscence, reduced to a lawful bond, might not float about deformed and dissolved, having from itself the unrestrainable weakness of the flesh, but from nuptials the indissoluble society of fidelity; from itself the progress of immoderate intercourse, but from nuptials the measure of chaste procreation." - But how strenuously the Church fought against the lust of kings and peoples for protecting the sanctity and perpetuity of the matrimonial bond, we shall set forth below, n. 720.

³ De bono conjugali, cap. 5, P. L., XL, 377.

684. Corollaries. (a) Fornication and free and temporary union are opposed to the natural and at the same time divine law, since they are not only prohibited by divine law, but are also opposed to the essential ends of marriage, as is established from what has been said, n. 679.

(b) Marriage is impossible between persons who are not apt for generating, such as eunuchs, since the primary end cannot be attained.

(c) A marriage in which the primary end of marriage itself, that is, the end of the work, were positively excluded by the contracting parties would be illicit, indeed null; but the intention of the contracting parties (the end of the one acting) can be that of not pursuing the execution of such an end, provided that the right to that end is not excluded, or the right to the body (can. 1081, § 2).

(d) It is licit and valid, although less perfect, to contract marriage with this explicit end alone, not however exclusive, that poverty be removed, help and solace be found, passions be quieted, lawful delight be had, provided that the primary end is not excluded, in the sense already stated.

685. Preliminary notes. From what has already been said it is permitted to infer that the essence of marriage, as contract, consists in mutual consent, by which a man and a woman, otherwise capable of marriage, hand over to each other in the present² a stable right over the body of the other for generating offspring, and for the fellowship of common life. Consequently the matrimonial contract does not consist directly in use or copula, but in the consent by which the right to copula is handed over. For, as St. Thomas rightly observes, "one does not receive power over that which is freely another's except through his consent. But, through matrimony, each spouse receives power over the body of the other... since previously each had free power of his own body. Therefore consent makes marriage."

¹ St. Thomas, Supplem., q. 45-48; Sanchez, lib. II-V; Salmantic., cap. 6-7; Billuart, diss. III, a. 1-5; St. Alphonsus, nn. 885-896; Carrière, nn. 455-505; Gasparri, nn. 770-870; Rosset, vol. I, nn. 88-237; Pesch, nn. 731-752; Billot, th. 34-35; Ball. P., nn. 262-305 (3rd ed.); Wernz, S.J., Jus Decretal., vol. IV, Jus Matrimoniale, Rome, 1904, nn. 45-47 and nn. 291-306.

² It is said in the present, because consent concerning the future indeed suffices for betrothals, but not for marriage.

686. Certain ancient authors taught that copula is necessary for constituting perfect marriage: "It must be known," says Gratian,³ "that marriage is begun in betrothal, perfected in commingling. Whence between bridegroom and bride there is marriage, but begun; between those joined by copula there is ratified marriage." A few commentators of Gratian proceeded further, teaching that copula is required for the essence of marriage. Freisen renewed this opinion, writing that the matrimonial contract is nothing other than a promise of future copula, and therefore does not differ from betrothals; but marriage properly so called is made through copula had with marital affection.⁴ - It is indeed true that marriage simply ratified is not so perfectly indissoluble as consummated marriage, as will be said below; yet it is true marriage and properly so called, as the common and certain opinion holds. (a) For the Fathers often teach this, when they write that Mary and Joseph were truly spouses, although they never used marriage: thus, for example, Origen, St. Basil, St. Ambrose, St. Jerome, St. Augustine;¹ hence Benedict XIV says: "Those who affirm that the marriage of the Blessed Virgin with St. Joseph consisted only in betrothals, think rashly and falsely. Therefore it must be held as certain that the marriage contracted between them was true and ratified."² (b) Pontiffs and Councils teach the same expressly, when they establish that marriage is perfected by the free consent of the contracting parties. Thus Nicholas I:³ "Let the consent alone of those concerning whose unions there is question suffice according to the laws. If this consent alone perhaps has been lacking in nuptials, the rest, even celebrated with intercourse itself, is frustrated, John Chrysostom, the great Doctor, bearing witness, who says: intercourse does not make marriage, but will." To the point is Trent:⁴ "There is no doubt that clandestine marriages made by the free consent of the contracting parties are ratified and true marriages." Afterwards it declares that ratified marriage, not consummated, is dissolved by solemn profession of religion; now a contract is not dissolved unless it already exists.

³ Dictum in Caus. 27, q. 2, c. 34; cf. c. 45. - There the word ratified from the context seems to signify a marriage which cannot be dissolved in any way.

⁴ Archiv für kathol. Kirchenrecht, LIV, 1885, p. 361 sq. - Yet he later retracted this error in the same periodical, LXVII, 1892, p. 381 sq.

¹ Origen, homil. VI on Luke, P. G., vol. XIII, p. 1814 sq.; St. Basil, De sancta Christi generatione, nn. 3-5, P. G., vol. XXXI, pp. 1463-1467; St. Ambrose, De instit. virg., c. 6, n. 42, P. L., vol. XVI, p. 316; St. Jerome, Contra Helvid., n. 4, P. L., vol. XXIII, p. 185; St. Augustine, De nuptiis et concup., l. I, n. 12, P. L., vol. XLIV, p. 420.

² De Synodo dioeces., l. XIII, c. 32, n. 13.

³ In Mansi, Concilia, vol. XV, p. 403.

⁴ Trent, Sess. XXIV, de Reformat. matrim., c. 1.

It remains, therefore, that we accurately declare the qualities of matrimonial consent; therefore we shall speak: 1° on the endowments of this consent in general; 2° on conditioned consent in particular.

687. Since marriage is a certain contract, the consent furnished in it follows the general laws of contract. But because it is a contract sui generis, in which a right over the very persons of the contracting parties is handed over, certain special things must be noted concerning it. We shall declare this by setting forth in what sense matrimonial consent ought to be internal, free, mutual, and externally manifested.

688. 1° Internal, that is: (a) truly elicited by the will, (b) with a true intention, at least implicit, of handing over a right over one's own body and of receiving a right over the body of the other in order to the generation of offspring. This indeed is clear from the very nature of marriage; for this consists essentially in the right to acts of themselves apt for generating offspring; and moreover such a right cannot be handed over without the true consent of each party. Hence a union between man and woman entered into on account of other ends, for example, only for mutual help and solace, without the intention of granting the aforesaid right, is not truly marriage. Yet implicit consent suffices, such as, for example, is given by those who intend to do what others about to marry do, provided that they exclude nothing of those things which are required for the essence of marriage. What error vitiates consent will be declared below, nn. 934-936.

689. Corollaries: (A) He who simulates consent, while indeed seriously and duly pronouncing the words, but internally dissenting or jesting, contracts invalidly. Hence he cannot licitly use marriage; but the other party, who furnished true consent, is not bound to believe the simulator saying that he did not consent, but can ask for the debt.

(B) In the external forum, consent seriously given externally is presumed to be true and internal, unless the contrary is proved by certain arguments. (Codex, c. 1086.)

This proof is altogether difficult; for the affirmation even sworn of the simulator, or even of each spouse, does not suffice; but besides, two things are required: (a) the cause or motive of simulation must be explained, for example, it must be proved that consent was extorted by fear or fraud, or that the simulator willed nothing other than to obtain money or seduce the girl; (b) the simulation itself must be demonstrated from various circumstances preceding, accompanying, or following the marriage, which are such that they render the fiction morally certain; this can be done, for example, either by letters, or by words pronounced before witnesses, clearly manifesting this intention.¹

¹ You have examples in Gasparri, nn. 801 and 804; Acta S. Sedis, vol. XVIII, p. 14; vol. XXII, p. 529.

690. (C) He who consents only fictitiously, or simulates consent, sins mortally, unless he is excused by a most grave reason.

For, even if it is admitted with many theologians that in this case sacrilege properly so called is not committed², nevertheless one certainly sins against truth, by deceiving the other party and the witnesses; against justice, by inflicting grave damage on the other party, who will remain unmarried if the fraud cannot be proved, or will contract other nuptials only with difficulty if the fraud is detected; against chastity, if the consummation of this fictitious marriage is intended.

² For simulation of a sacrament it is required that some essential part be posited, while the other is omitted or mutilated; but he who simulates consent posits neither the matter nor the form of the sacrament, since each consists in consent itself; therefore he does not properly simulate the sacrament, nor under this head is he guilty of sacrilege. Cf. St. Alphonsus, n. 62.

Yet he is excused from sin who simulates consent on account of a grave and urgent reason, for example, because of grave fear, or to avoid scandal, if a diriment impediment is detected a little before the celebration of marriage, from which dispensation here and now cannot be obtained, and moreover to defer the ceremony is morally impossible.

691. (D) Grave injury brought about by deception of this kind must be repaired from justice, when the deceiver is the unjust, efficacious, and culpable cause of the damage which the innocent party suffers.

(a) Often the damage cannot be repaired except by furnishing true consent and thus revalidating the marriage; for since it is difficult and sometimes impossible to prove the fiction in the external forum, the innocent party is prohibited from passing to other nuptials, and a continued injury is done to him or her unless the marriage is revalidated.

(b) Yet the deceiver is not bound to marry the deceived party whenever this is morally impossible, for example, because one or the other party has already entered another valid marriage, or if unhappy outcomes are feared because the deceiver is of much higher condition; - or when the damage brought about can be compensated in another way and the injured party admits this compensation; - or if the deceiver himself was induced to contract by grave fear; - or if by his manner of acting he gave manifest signs of fictitious consent.

692. 2° Free, that is, with advertence on the part of the intellect and consent on the part of the will, such as is required for mortal sin. For the matrimonial contract induces grave obligations, and indeed for the whole course of life; moreover no one is judged to undertake obligations of this kind unless he fully consents. Hence consent given in hypnotic sleep would not be valid.

This freedom is taken away by insanity, error, force, and fear, concerning which there is treatment where impediments are discussed.

693. 3° Mutual, or given and accepted by each party; for here there is question of a bilateral contract, by which mutual rights are handed over and accepted, and mutual obligations are undertaken; but these two suppose the consent of each party, since no one can hand over rights and undertake obligations unless he wills.

Therefore it is required that the consent of one be intimated to the other and accepted by him or her; but it is disputed whether it is necessary that the very acceptance of consent be intimated to the other. The matter is controverted as for all contracts (see Treatise on Contracts, n. 624). Many and grave authors¹ required the intimation of consent. But the matter now has little importance in practice, since marriage cannot be contracted by letter, but the contracting parties must be present themselves in person or through a procurator (Codex, c. 1088).

¹ Lugo, Sanchez, D'Annibale, Gasparri.

Nor is it required that the consent of each party be given at the same instant; but that moral union suffices which exists whenever consent given by one still endures at the time when the other furnishes his or her consent. But how long consent once elicited perseveres, whether namely for a year, or for three years, or longer, cannot be determined absolutely, but depends on the various circumstances, and must be left to the judgment of prudent persons.

694. 4° Externally manifested: for this is required by the nature of a contract, which among men is not valid unless it is expressed externally; and also by the nature of a sacrament, which consists in a sensible sign.

By natural and divine law any signs clearly manifesting consent suffice; by ecclesiastical law words regularly must be employed whenever this can be done, but not under penalty of nullity;² indeed, according to St. Alphonsus (n. 888), words are required only under venial fault, and shame or another reasonable cause excuses from this. Nevertheless the parish priest should require that those about to marry express their consent by words, if they can, and indeed clearly, so that thus he may meet many doubts and quibbles.

² Codex, c. 1088, § 2.

695. Therefore validly, and, a just cause being present, licitly, consent is expressed by various signs which suffice in other contracts; namely:

(A) By words which, according to received signification, express matrimonial consent in the present, for example, I receive thee as wife, as my own; as husband, as my own; I contract marriage with thee, etc. - It is said "in the present," because consent concerning the future signifies betrothals only. Yet sometimes words which, as they sound, seem to be concerning the future sufficiently designate consent in the present from the circumstances, for example, from now on, henceforth I shall have thee as wife. If the words are ambiguous, the sense in the internal forum depends on the intention of the one speaking; in the external forum it must be determined from the circumstances.

(B) By signs or acts, for example, if the woman nods by inclining the head to the parish priest or man questioning her; or if, while the man expresses consent, the woman of her own accord extends her right hand so that the man may put on the ring; likewise if the spouses, after the celebration of marriage, freely approach the sacristy with the witnesses so that there they may be inscribed by the parish priest in the book of marriages. But it is not permitted to spouses to use equivalent signs if they can speak.

696. (C) By letter marriage was contracted validly before the promulgation of the Code; but, from the Code, c. 1088, this cannot be done, since the contracting parties must be present in person or through a procurator. This indeed was wisely established so that frauds may more easily be guarded against.

697. (D) Through a procurator or through an interpreter marriage can be contracted, provided that "a just cause is present, and it is in no way permitted to doubt the authenticity of the mandate or the fidelity of the interpreter, the license of the Ordinary having been had, if time allows."¹

¹ Codex, c. 1091.

For marriage to be entered validly through a procurator, ") there is required a special mandate to contract with a certain person, signed by the mandating party and either by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses; 2) if the mandating party does not know how to write, this is to be noted in the mandate itself and another witness is to be added who himself also signs the writing; otherwise the mandate is invalid; 3) if, before the procurator has contracted in the name of the mandating party, the latter has revoked the mandate or fallen into insanity, the marriage is invalid, although either the procurator or the other contracting party were ignorant of these things; 4) for the marriage to be valid, the procurator must perform his office himself in person."² Besides, the procurator must not exceed the limits of the mandate, and, where solemn form is required, he is bound to exhibit the mandate to the parish priest and witnesses, and to contract before them in the name of the mandating party.³

² Codex, c. 1089.

³ Codex, c. 1091.

698. 1° On its liceity. Since marriage is a contract, nothing of itself prohibits that it can be entered into under a condition, provided that the condition is not repugnant to the substance of marriage. Yet regularly nuptials of this kind are not to be permitted, both because the Roman Ritual, handing down the form of marriage, describes no other than the absolute form; and because very great inconveniences are customarily born from added conditions, since from this certain marriages become doubtful, and moreover the contracting parties are exposed to the danger of living more freely before the condition has been fulfilled. Yet they can be permitted for a most grave cause and with the consent of the Bishop acceding; indeed, if there is question of revalidating a doubtfully contracted marriage, a condition must be added.

⁴ From the Code, c. 1092, "a condition once added and not revoked: 1° if it is concerning a future necessary event, or impossible, or shameful, but not against the substance of marriage, is held as not added; 2° if concerning a future event against the substance of marriage, it renders it invalid; 3° if concerning a future licit event, it suspends the validity of marriage; 4° if concerning the past or concerning the present, the marriage will be valid or not, according as that which is under the condition exists or not."

699. 2° On its validity. Here a multiple distinction is needed.

(A) If the condition is concerning the past or concerning the present, whether it is honorable or not, (a) the marriage is valid immediately, if the condition is verified; and immediately invalid, if it is not fulfilled; for example, I contract with thee if my father is dead, or if thou hast truly killed my enemy, or if thou art a virgin, etc. In these or similar cases consent is, as it were, bound to the condition, and consequently the conditioned contract immediately passes into an absolute one if at that instant the condition itself has been fulfilled. Moreover, since this is concerning the past or concerning the present, it is not to be feared that the apposition of the condition, even one less honorable, is an incitement to crime.

(b) But as long as it is unknown whether the condition has been fulfilled or not, it is not permitted to use marriage, on account of the danger of fornication.

(c) In the external forum, if the condition has not been explicitly brought into the pact in the very act of marriage, it is difficult to prove its existence;¹ and for the marriage to be declared null under this head, three things must be clearly demonstrated: that a true condition without which not was added, - that the same was not revoked before the celebration of marriage, - and that it was not fulfilled.

¹ Gasparri illustrates this by various examples, n. 869.

700. (B) If the condition is concerning the future, likewise a distinction must be made:

(a) If it is concerning a future honorable and possible event (for example, I marry thee if my father consents), the marriage remains in suspense until the condition shall have been verified; but when the condition has been fulfilled, the marriage becomes valid, provided that the consent previously given perseveres. In this case the marriage is valid without any renewal of consent, according to the common opinion, safe in practice, which the Roman Congregations follow in their decisions;¹ for marriage, even if it has been raised to the dignity of a sacrament, has the nature of a contract, and therefore is perfected when the condition arrives, just as other conditioned contracts.

¹ Cf. Fagnanus, Commentar., cap. 5, De Conditionibus...; Gasparri, n. 850.

Yet according to all it is better, when the condition has been fulfilled, to renew consent. Indeed this is necessary if the marriage was contracted under this condition: "If the Pope shall have dispensed from such a diriment impediment"; for those who contract in this way are incapable of marriage before the dispensation is obtained, and their consent is null; whence new consent, once the dispensation has been obtained, must be expressed.²

² Lugo, De Sacramentis in genere, disp. VIII, n. 98.

701. (b) If the condition is concerning a future impossible or dishonorable event, yet not against the substance of marriage (for example, if you receive a golden mountain as dowry, if you kill your brother), the marriage is valid, and the condition is held as not added. For it is presumed that the contracting parties seriously wished to contract, and did not bind consent to such a condition. - Yet this is only a presumption of law, which admits proof to the contrary in the internal forum; whence if the contracting party bound consent to this condition, the marriage is null if the condition is not fulfilled, but valid when the condition has been fulfilled. But in the external forum, according to can. 1092, 1°, proof to the contrary does not seem ever to be admitted by the judge, lest jesting or a depraved intention prevail against marriage.

702. (c) If the condition is concerning a future event against the substance of marriage, and is brought into the pact by the two contracting parties, or consent is expressly bound to it by either one, the marriage is invalid. For then true matrimonial consent is lacking, since at least one of the essential properties of marriage is excluded.

But if a condition of this kind is posited by only one, the other contradicting, or at least manifesting dissent by silence, the marriage is presumed valid, because the former is judged to have withdrawn from the condition and to have contracted absolutely. Yet that presumption yields to the truth, if it is certainly proved that the former bound consent to this condition.

Likewise, if the condition is merely concomitant, so that consent is not bound to it, the marriage is judged valid. For in the conflict of two intentions opposed to each other, that one is efficacious which prevails in the mind of the contracting parties; but in the present case there is a twofold opposed intention, namely the intention of marrying and at the same time of doing something contrary to the essence of marriage; moreover the intention of marrying, from things commonly occurring, prevails in the mind of the spouses; therefore it is truly efficacious and marriage is contracted. Yet this is a presumption which yields to the truth, when this is certainly established from elsewhere.

Let us declare the matter by examples. 1) If a condition is added against the good of offspring, for example, "provided that we avoid the generation of offspring until we become richer, - provided that after one or another child we exclude offspring"; the intention of the spouses must be explored: if they intend to exclude the right to the legitimate use of marriage, the contract is invalid, because they do not grant a perpetual right over their own body in order to generation, which nevertheless is essential to the essence of marriage; but if, as generally happens, the intention of handing over that right prevails, with a secondary intention of abusing marriage, the contract is valid.

2. Likewise, where the law of divorce is in force, if those about to marry contract under the condition of dissolving the matrimonial bond in the case of adultery or disagreements,¹ so that they would not wish to marry unless divorce were permitted to them, the marriage is invalid; for they do not consent to a perpetual bond, which is of the essence of marriage. But if they are so disposed that they would wish to marry even if divorce were prohibited, the contract is valid.¹

¹ Thus the Congregation of the Holy Office declared, May 20, 1754, that a marriage entered before a Calvinist minister was invalid, because he is accustomed to use a formula contrary to the perpetuity of marriage, in Gasparri, n. 854. See also Instruction of the Holy Office to the Bishop of S. Alberti, December 9, 1874, in Collect. P. F., n. 1301.

¹ Thus the Sacred Congregation of the Council, January 31, 1891, declared valid a marriage in which the bridegroom had wished to contract only a soluble bond, but nevertheless truly to marry. Cf. Acta S. Sedis, vol. XXIII, pp. 711-736.

3. The same must be said of conditions against the unity of marriage, for example, provided that I may take another, - provided that for money you prostitute yourself. - In individual cases an investigation must be made to detect whether or not consent was bound to this condition, and this cannot be supplied by a general presumption. But to detect the intention of the contracting parties, not only must the words by which consent was expressed be considered, but also the facts and circumstances from which the sense of the words can be known.²

² Thus Congregation of the Holy Office, 1877, to the Bishop of Nesqually, in Collect. P. F., n. 1302.

But when doubt remains, one must stand for the validity of the marriage, until the Holy See has decreed otherwise. If the spouses wish to renew consent, this is altogether to be advised.

703. (d) If an honorable condition is added of abstaining perpetually from the use of marriage, for example, for preserving chastity, it is controverted whether the marriage is valid or not. Not a few affirm that it is, because a right over one's own body can be conferred and at the same time the exercise of the right can be excluded, on account of a good motive:³ for then there is a radical right, although bound, and this suffices for the essence of marriage. In this way it is easily explained how there was true marriage between the Blessed Virgin and St. Joseph, although they had vowed virginity. But others deny it;⁴ for a right is the power of using; now if a power of this kind is prohibited, no right is conferred. Moreover the marriage of the Blessed Virgin with St. Joseph was valid: for no condition was added, but the Blessed Virgin was made divinely more certain that St. Joseph had proposed to himself to preserve virginity, and therefore by contracting nuptials absolutely, she in no way committed herself to the danger of violating the vow.

³ Palmieri, De Matrim., p. 17; Ball. P., nn. 225-233; Lehmkuhl, II, n. 690; Gasparri, n. 858.

⁴ St. Thomas, 4, dist. 30, q. 2, a. 1, quaestiunc. 3, sol. 2; Benedict XIV, De Synodo, l. XIII, c. 22, n. 10. D'Annibale, III, 443, note 4.

704. Corollary. From these principles the question can be solved whether a marriage contracted by one who falsely thinks himself bound by a diriment impediment is valid. Certain authors deny it, because one cannot seriously will that which is impossible; moreover, he who is certain that he is laboring under an impediment of this kind, by that very fact knows marriage to be impossible. But others affirm it, because in this case the contracting parties consent insofar as they can; but in fact marriage is possible, since in reality there is no impediment; therefore they furnish true consent; and this must be held from the Code, c. 1085.

According to the principles set forth above, attention must be paid to the intention of the contracting parties: if they think themselves to be so bound by an impediment that they seek nothing other than concubinage, the marriage is not valid; but if they intend to contract insofar as they can, the marriage is valid.

"The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a peculiar firmness by reason of the sacrament" (Codex, c. 1013, § 2.)

705. Preliminary notes. The unity of marriage consists in the conjugal union of one man with one woman. To this are opposed polyandry and simple polygamy. The former is the conjunction of one wife with several men; the latter is the conjunction of one man with several wives.

We premise a few things concerning polyandry, which exists very rarely. Simultaneous polyandry, or the conjugal union of one wife with several men at the same time, according to all, is repugnant at least to the secondary natural law. For although, strictly speaking, it does not render absolutely impossible the procreation and education of offspring, nevertheless it is opposed to the principal ends of marriage: (a) to the procreation of offspring, for the fecundity of the woman, although it is not altogether destroyed by carnal commerce with several men, is nevertheless greatly diminished; (b) to the education of offspring, because it renders the father uncertain, and consequently renders uncertain his obligation of educating the children; (c) to the natural subjection by which the woman ought to be subject to the man; for no one can perfectly serve several masters at the same time.¹

¹ St. Thomas, Supplement, q. 65, a. 1, ad 8.

Nevertheless a certain polyandry has flourished and still flourishes among certain tribes, especially where women are fewer than men. Sometimes the matter stood thus: when a woman had married the firstborn, his younger brothers approached her successively, according to certain defined rules and customs; and sometimes two or three men married the same wife and dwelt together in the same house. But facts of this kind occur rarely, and among the husbands generally one is principal, who presides over the whole household. Yet even among those tribes monogamy generally prevails.¹

¹ Westermarck learnedly discusses the extension and causes of polyandry, op. cit., ch. 20-22, pp. 425-485.

706. Polygyny, before Christ, flourished among most peoples, although not all men were polygamous. Today also among unbelievers it prevails, especially among the richer, who can support several women. But among Christian nations monogamy is acknowledged as the foundation of the family. - Yet Luther taught that simultaneous polygamy, even under the New Law, was licit, and, with P. Melanchthon and M. Bucer agreeing, kindly granted Philip, Landgrave of Hesse, that while his lawful wife was still living he might marry another, Margaret de Saal. The Anabaptists defended the same error, and in our century the Mormons,³ who very recently nevertheless declared that they had taken leave of polygamy, so that thus they might submit themselves to the laws of the State. But on the opposite side Calvin contended that simultaneous polygamy, even under the Old Testament, was illicit, and therefore that the ancient Patriarchs, who had several wives at the same time, were guilty of adultery. To refute this calumny, some theologians said that polygamy is not opposed to the natural law, nor before the evangelical law was it prohibited by divine law. What we think the following proposition will declare.

² St. Thomas, Supplement, q. 65, aa. 1-2; Bellarmine, c. 10-11; Drouin, l. IX, q. III, c. 1; Billuart, diss. V, a. 1; Perrone, l. III, c. 1, aa. 2-4; Carriere, p. II, sect. 2, c. 1; de Augustinis, a. 7; Palmieri, th. 13 sq.; Billot, th. 40; Watkins, Holy Matrim., ch. IX, p. 591 sq.

³ Concerning the Mormons, who call themselves "The Church of Jesus Christ of Latter-Day Saints," see Book of Doctrine and Covenant (1880), Book of Mormon (1881); Encyclop. Britan. with American Supplement; H. Lyon, A Study of the Sects, p. 187 sq.

707. Thesis: Simultaneous polygamy, contrary to the primitive institution, but permitted to the Patriarchs after the flood, was prohibited by Christ, and is opposed to the secondary precepts of the law of nature.

(A) Simultaneous polygamy is contrary to the primitive institution of marriage. Thus more commonly. For (a) when God created man, He made one man and one woman;¹ now, as Chrysostom² rightly observes, if the Lord had willed that one man be joined to several wives, when He made one man, He would have made many women. But afterwards Adam, seeing Eve, exclaimed: "Wherefore a man shall leave his father and his mother, and shall cleave to his wife; and they shall be two in one flesh"; there, however, as Innocent III says,³ "he did not say three or more, but two; nor did he say he shall cleave to wives, but to his wife"; which indeed exclude polygamy. (b) Hence, before the flood, Lamech alone is said to have had two wives, and on that account he is severely reproved by the Fathers; thus Nicholas I writes:⁴ "but the crime of adultery, which Lamech first of all perpetrated in two wives, stood as abolished only by the blood of Christ"... (c) On this account Innocent III (loc. cit.) says: "Nor was it ever permitted to anyone to have several wives at the same time, except to him to whom it was granted by divine revelation"; and these words indeed manifestly suppose that polygamy was prohibited by the primitive law.

¹ Gen., II, 7, 22.

² Hom. 62, al. 63, in Matt., n. 1, P. G., t. LVIII, p. 597.

³ Decretal., l. IV, t. 19, Cap. Gaudemus, de Divort.

⁴ Ad Consulta Bulgar., n. 51, in Harduin, Act. Concil., t. V, p. 37.

708. (B) Yet polygamy after the flood was permitted to the Patriarchs and to the Jews under the Mosaic law, indeed very probably also to the Gentiles. (a) For the Patriarchs, who enjoyed the friendship of God, such as Abraham, Jacob, and others, had several wives, nor are they reproved on that account, but rather they are exhibited as men outstanding in piety. (b) The Mosaic law likewise supposes plurality of wives to be licit, since it establishes that the sons born from either wife are to be equated.⁵ In reality Elkanah,⁶ David,⁷ Joash,⁸ and other men had several wives; and while David is gravely chastised on account of adultery with Bathsheba, the wife of Uriah, he is never reproved on account of the other wives whom he had married.

⁵ Deut., XXI, 15.

⁶ I Reg., I, 2.

⁷ II Reg., II, 2.

⁸ II Parap., XXIV, 3 sq.

Nor let it be said that some of these wives are called concubines and therefore were not legitimate; for in Scripture sometimes legitimate wives are called concubines, and conversely; thus Hagar and Keturah are now called wives, now concubines.¹ Indeed among the ancients two kinds of wives were distinguished: some were married not only for the procreation of offspring, but also for the society of all goods and the governance of the house, and these were called mothers of families; but others only for the generation of offspring, and these were called secondary wives or concubines. (c) But the chief reason why polygamy was permitted after the flood was the multiplication of offspring to be educated for the worship of God. For, as St. Thomas says (loc. cit., a. 2): "The more principal end must always be observed more than the secondary. Hence, since the good of offspring is the principal end of marriage, where the multiplication of offspring was necessary, the impediment which could occur in the secondary ends had to be neglected for a time."

¹ Gen., XVI, XXV.

It is commonly handed down by theologians that the dispensation from the primitive law concerning the unity of marriage was given only after the flood; nevertheless nothing certain can be defined concerning this matter. Nor was it necessary that the dispensation be expressed in writing; for the law concerning unity of wife, as St. Thomas observes (loc. cit.), had not been handed down by word or letters, but impressed on the heart; and therefore the dispensation could take place through internal inspiration, which indeed was principally made to the holy fathers, and from their example derived to others. From this also it can be gathered, with Bellarmine and others against Sanchez, that the same dispensation was given to the Gentiles; for since it was granted in the time of the patriarchs, there is no reason why it should have been limited to the Jews alone, especially because it was more difficult for pagans than for Israelites to preserve the perfect unity of marriage. Hence Esther was joined to Ahasuerus, who already had a wife, and she is not reproved on that account; likewise Abimelech, who had a wife, wished to marry Sarah, and was not blamed except because he had taken the wife of another.

709. (C) Simultaneous polygamy was prohibited by divine law under the New Law. This is of faith from Trent:² "If anyone shall say that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law, let him be anathema."

² Trent, sess. XXIV, can. 2.

(a) For Christ recalled marriage to its first institution; for when asked whether it was lawful to put away a wife, He answered that it was not lawful, and added this reason: "Have you not read that He who made man from the beginning made them male and female? And He said: For this cause a man shall leave father and mother and shall cleave to his wife, and they shall be two in one flesh: therefore now they are not two, but one flesh."¹ But the primitive institution of marriage excluded polygamy, from what has already been said, and from the words of Christ Himself: "they shall be two in one flesh." It is confirmed by other words of the Lord: "Whoever shall put away his wife, and marry another, commits adultery";² for he who puts away his wife and marries another commits adultery for this reason, that the former does not cease to be his wife; but when she has not been put away, a fortiori she remains his wife; therefore he who marries another truly commits adultery. Hence St. Paul, as often as he speaks of marriage, supposes it to be of one man with one wife, and says: "The woman, while her husband lives, shall be called an adulteress, if she be with another man";³ moreover, from the same Apostle,⁴ the rights of the spouses are equal: "The woman has not power over her own body, but the husband: and likewise also the husband has not power over his own body, but the woman"; therefore neither can the man, while his wife is living, marry another.

¹ Matt., XIX, 3 sq.

² Luke, XVI, 18; Matt., XIX, 9.

³ Rom., VII, 3.

⁴ I Cor., VII, 2 sq.

(b) The same is proved by the unanimous testimony of the Fathers and the constant practice of the Church. Thus St. Augustine⁵ writes that in the Church it has been commanded "that it is not lawful even to leave a sterile spouse, so that another fruitful one may be married. But if anyone shall do this... by the law of the Gospel he is guilty of adultery." Hence the Roman Pontiffs have always stood forth as strenuous defenders of the unity of marriage, even against the lust of Princes; thus, in the ninth century, Nicholas I openly reproved King Lothair, the husband of two wives at the same time, and deposed the Bishops who in the Council of Metz had dissolved the bond of the first marriage.⁶

⁵ De Nuptiis, l. I, c. 10, n. 11, P. L., t. XLIV, 420.

⁶ J. Roy, Saint Nicolas I, Paris, Lecoffre, ch. 3.

Nevertheless two facts are alleged to the contrary. The first is that of Socrates, who reports⁷ that the Emperor Valentinian had two wives at the same time, and established that the same should be permitted to anyone who wished. But testimony of this kind is commonly rejected by learned men, both because some things in this narration are false, and because Ammianus Marcellinus, although sufficiently hostile to Valentinian, praises him because¹ "with every cultivation of modesty he was chaste at home and abroad." Besides, a fact of this kind, even if true, would prove nothing against the unanimous tradition of all centuries. The second is the response of Gregory II,² declaring that it is lawful for a man to marry another wife, because this one, on account of bodily infirmity, was not able to render the debt. But likewise there is doubt concerning the genuineness of this response, which was diligently sought in the Roman archives and nevertheless not found; but if it were authentic, perhaps it could be understood of an impotence which makes marriage invalid. Moreover the Roman correctors noted concerning this decree: "That decree of Gregory is found to be wholly opposed to the sacred canons, indeed to evangelical and apostolic doctrine"; therefore nothing can be gathered from it against the constant doctrine and practice of the Church.

⁷ Histor., l. IV, c. 31.

¹ Lib. XXX, circa finem.

² Epist. 13 ad S. Bonif., in Labbe, t. VI, col. 1448. Here is the text as it is alleged: "For as to what thou hast proposed, that if a woman, overtaken by infirmity, should not wish to render the debt to her husband, what should her spouse do? It would be good if he so remained, so that he might be free for abstinence. But because this belongs to the great, he who cannot contain himself, let him rather marry: yet let him not withdraw the assistance of support from her whom infirmity hinders." Cf. Kuth, S. Boniface, Paris, Lecoffre, p. 55.

710. (D) Simultaneous polygamy is opposed not to the primary natural law, but to the secondary. Thus commonly. For the matter stands so if polygamy, although saving the primary end of marriage, harms the secondary ends; but polygamy (a) neither totally removes nor in any way impedes the first end of marriage, since one man suffices for fecundating several wives and for educating the children born therefrom; (b) however, the secondary ends it does not indeed totally remove, but it greatly impedes them: for peace can not easily exist in a family where several wives are joined to one man, since one man cannot suffice for satisfying several wives according to their wish; namely, each one will endeavor to draw the man's affection to herself, and if the man does not pursue all with equal love (which can scarcely happen), thence quarrels will arise, inimical to peace, as is clear from the history of the Patriarchs. Likewise it is to be feared lest the husband, intent especially on the children of the wife preferred, neglect the rest. Finally the third end of marriage, namely the remedy of concupiscence, will not rarely be frustrated, since one man cannot satisfy several wives at the same time. Therefore plurality of wives is opposed not to the primary, but to the secondary natural law.

711. Successive polygamy, or second and further nuptials as illicit by divine law, were once condemned by the Montanists, to whom Tertullian adhered (De Monogamia), and also by the Novatians. Some Fathers, especially Greek ones, spoke too harshly concerning second and especially third and further nuptials. Indeed, among the Greeks, already from the tenth century, by ecclesiastical law, fourth nuptials are held as invalid.²

¹ St. Thomas, Supplement, q. 63; Drouin, l. IX, q. III, c. 2; Billuart, diss. V, a. 1, § 3; Carriere, n. 203 sq.; Perrone, l. III, sect. 1, c. 2; de Augustinis, loc. cit.; Palmieri, th. 12.

² "The Orientals also disapprove successive polygamy... For second nuptials indeed there is in the Euchologia a prescribed rite, which nevertheless they disapprove after the forty-fifth year of age; third nuptials were subjected to ecclesiastical censure, but fourth were condemned as brutal... According to present practice, help is given by dispensation of the bishop, when it is sought." (Papp-Szilagyi, Enchiridion juris eccles. orient., p. 414.)

712. Thesis: Successive polygamy, although less approved by the Church, is licit by divine law, nor was it ever universally prohibited in the Latin Church. It is certain.

(A) Scripture. St. Paul expressly affirms that repeated nuptials, the prior spouse being dead, are licit: "A woman, if her husband shall have died, is freed from the law of the husband, so that she is not an adulteress if she shall be with another man";³ "But I say to the unmarried and to widows: it is good if they so remain, even as I. But if they do not contain themselves, let them marry; for it is better to marry than to burn."⁴ Indeed elsewhere⁵ he exhorts younger widows to marry again: "Therefore I will that the younger marry, bear children, be mothers of families, give no occasion to the adversary for the sake of evil speaking." From these it is clear that, according to the mind of the Apostle, it is indeed better to remain in the state of virginity or widowhood; yet nevertheless nuptials are licit for virgins and widows, indeed sometimes expedient for restraining concupiscence.

³ Rom., VII, 3.

⁴ I Cor., VII, 8.

⁵ I Tim., V, 14.

713. (B) Tradition. (a) Explaining the aforesaid text of the Apostle, St. Augustine writes:⁶ "Concerning third and fourth and still further nuptials men are accustomed to raise a question. Hence, that I may answer briefly, I dare condemn no nuptials... For who am I, that I should think something must be defined which I do not see that the Apostle defined? For he says: A woman is bound as long as her husband lives. He did not say first, or second, or third, or fourth; but, he says, a woman is bound as long as her husband lives: but if her husband shall have died, she is freed; let her marry whom she will, only in the Lord. But she shall be more blessed if she so remains.¹ What can be added to or taken from this sentence, so far as this matter is concerned, I do not know." We indeed acknowledge that some Fathers, especially Greek ones, disapproved third or further nuptials, indeed said that they were worse than fornication. In speaking thus they principally condemned the affection of those who, not content with first or second nuptials, wished to enter a third or fourth marriage, not from the intention of receiving offspring, but for the sake of satisfying lust.² Yet they never said that these spouses were to be separated, but they receive them to communion after penance has been performed.

⁶ De bono viduit., c. 12, P. L., t. XL, p. 439.

¹ I Cor., VII, 39-40.

² As to the principal texts of the Fathers which seem to condemn repeated nuptials, cf. Drouin and Perrone, loc. cit.

(b) Eugene IV³ states the doctrine of the Church concerning this matter thus: "We declare that not only second nuptials, but third and fourth and further ones, if some impediment does not stand in the way, can be contracted licitly. Yet we say that those are more commendable if, abstaining further from marriages, they remain in chastity."

³ Decret. pro Jacobitis.

(C) Theological reason. With the nature of things alone inspected, nothing prohibits that repeated nuptials be licit; for on the one hand the first bond, when one of the spouses is dead, has been dissolved; and on the other a new matrimonial consent can be furnished between parties otherwise capable; indeed, sometimes nature itself counsels that, whether for the procreation of offspring or for avoiding incontinence, a new covenant be entered.

714. The other property of marriage is indissolubility, by force of which the bond entered between the spouses cannot be dissolved except by the death of either spouse. To this indissolubility divorce is opposed, which is usually distinguished as threefold: divorce as to the bond, or full divorce, by which the matrimonial union is so dissolved that new nuptials can be entered; divorce as to the bed, or separation from bed, where, while the conjugal bond remains, the spouses are immune from rendering the conjugal debt; divorce as to habitation, by which the spouses are freed from the obligation of cohabiting together. Here we treat especially of divorce properly so called, or as to the bond, yet adding a few things concerning separation as to bed and habitation.

Therefore we shall speak: 1° of the indissolubility of the matrimonial bond from divine law; 2° of the same indissolubility from natural law; 3° of the cases in which the bond can be dissolved even under the evangelical law; 4° of the manner of acting with regard to civil divorce; 5° of separation as to bed and habitation.

715. Among Christians it is commonly acknowledged that marriage was indissoluble from the beginning, but that in the time of the Mosaic law it could be dissolved under certain conditions, and that it was recalled by Christ to its primitive indissolubility. Nevertheless the schismatic Greeks and Protestants teach that marriage, even as to the bond, can be dissolved by adultery, or even, according to many, on account of the obstinate desertion of either spouse.²

¹ St. Thomas, Supplement, q. 67; Sanchez, l. X, disp. 1; Drouin, l. IX, q. IV, c. 1; Bellarmine, c. 16; Billuart, diss. V, a. 2, historical digression; Carriere, n. 228 sq.; Perrone, l. III, sect. 2, cc. 1-4; de Augustinis, a. 8; Palmieri, th. 17-22; T. Wolsey, Divorce and Divorce Legislation, 1882, c. 1; J. Cauviere, Le Lien conjugal et le Divorce, Paris, 1890; Congres scient. internat. 1894, Sc. jurid., p. 133 sq.

² As to the doctrine of the Greeks on this matter, see Jos. Selinger, Divorce a vinculo in the schismatical churches, in Amer. Eccles. Review, April 1892, p. 264 sq. But the doctrine of the Protestants is exhibited thus by the Westminster Confession of Faith (cap. XXIV, 5-6): "But if adultery is committed after marriage, it will be lawful for the innocent party to seek and obtain divorce by law; and indeed after the divorce has been made to be joined in marriage to another, just as if that person who was violating the fidelity of marriage were dead... Nevertheless, outside adultery and desertion so obstinate that by no remedy can help be given to it, either by the Church or by the civil Magistrate, there can be no sufficient cause for dissolving the bond of marriage." (In Schaff, Creeds, vol. III, p. 656.)

716. First Thesis: Marriage, from the primitive institution of God, was indissoluble; but under the Mosaic law it could be dissolved through a bill of repudiation, even in the forum of conscience, under certain definite conditions. Thus commonly.

(A) The first part is proved. (a) For when the Pharisees asked whether it was lawful for a man to put away his wife for any cause whatever, Christ answers that God Himself is the author of marriage, and that it is not lawful for man to dissolve this union: "What therefore God has joined, let not man separate." But when they objected that a bill of repudiation had been permitted by Moses, the Lord adds: "Because Moses, for the hardness of your heart, permitted you to put away your wives: but from the beginning it was not so."¹ These words indeed manifestly suppose that from the beginning marriage was not so instituted that license was given to the man of repudiating his wife. (b) This is confirmed by Trent:² "The first parent of the human race, by the impulse of the divine Spirit, pronounced the perpetual and indissoluble bond of marriage, when he said: This now is bone of my bones, and flesh of my flesh"...

¹ Matt., XIX, 3 sq.

² Trent, sess. XXIV.

717. (B) The latter part is clear; for it is read in Deuteronomy:³ "If a man takes a wife, and has her, and she does not find favor before his eyes on account of some uncleanness, he shall write a bill of repudiation, and shall give it into her hand, and shall send her out of his house. And when, having gone out, she has married another husband, and he also hates her and gives her a bill of repudiation, and sends her out of his house, or certainly has died, the prior husband will not be able to receive her again as wife"... Now by these words either the faculty of divorce as to the bond is granted, or it is supposed already granted; for the dismissed wife is exhibited as marrying another man, and moreover priests are prohibited from marrying a repudiated woman;⁴ from which it is gathered that this was permitted to others.

³ Deut., XXIV, 1 sq.

⁴ Levit., XXI, 7.

(a) But it is disputed among the Fathers and theologians whether a concession of this kind was valid not only in the external forum, but also in the internal forum.⁵ The opinion affirming that this was a true permission valid in the forum of conscience seems to us more probable; for he who marries a dismissed wife is called husband, and he himself can give a bill of repudiation, which right belonged only to a legitimate husband; besides, the prior husband is prohibited from receiving the dismissed wife again; but if the bond had not truly been dissolved, why that prohibition? Moreover, if a permission of this kind had not been valid in conscience, the law would have furnished occasion for many adulteries; the condition of women would have been most unjust, since, after receiving a bill of repudiation, they would have had to observe continence perpetually; finally, all the Jews embraced this interpretation, and although two schools, Shammai and Hillel, disputed concerning the causes on account of which divorce could be granted,¹ yet in this they agreed, that sometimes it was lawful.

⁵ St. Bonaventure, Soto, Estius, Sylvius, Card. Billot think that divorce was only civilly tolerated, and therefore immune from civil penalty but not from sin; nevertheless this opinion seems less probable.

¹ According to Hillel, the sufficient cause was any thing displeasing to the husband, as if the wife had prepared the foods negligently; but, according to the school of Shammai, a certain immodesty on the part of the wife was required.

(b) Only under certain definite conditions was the faculty of divorce granted; first, it belonged not to the wife, but only to the man; indeed it was not permitted to the man when, before marriage, he had had carnal commerce with the wife, or had unjustly accused her of not being a virgin.² Besides, the man could not dismiss his wife for any cause whatever, but only on account of some uncleanness ('ervat dabar), a word which designated something base and dishonorable. Nor was he permitted to dismiss her without a written bill of repudiation, by which not only was provision made for the state of the wife, but divorce became more difficult. Finally, when the woman thus repudiated had entered a new marriage, she could not again be received as wife by the prior husband; by which it happened that the man acted more cautiously. By these various formalities the sacred legislator sufficiently showed that divorces are something less perfect, and he confined them within certain limits. But the reason why God gave such a faculty is indicated by the words of Christ, "for the hardness of heart," or, as St. Thomas explains (a. 3), "on account of restraining a greater evil, namely wife-murder, to which the Jews were prone on account of the corruption of the irascible power."

² Deut., XXII, 19, 29.

718. Second Thesis: The marriage of the faithful, ratified and consummated, cannot, under the evangelical law, be dissolved as to the bond, even on account of adultery. It is certain and proximate to faith against the Greeks and Protestants from Trent:¹ "If anyone shall say that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine, that the bond of marriage cannot be dissolved on account of the adultery of either spouse; and that both, or even the innocent one, who gave no cause for the adultery, cannot contract another marriage while the other spouse is living; and that he commits adultery who, having dismissed an adulterous woman, marries another, and she who, having dismissed an adulterer, marries another, let him be anathema." The canon is directly directed against the Protestants, who were accusing the Catholic Church of error concerning this matter; therefore it is of faith that the Church does not err when she teaches that, on account of adultery, the matrimonial bond cannot be dissolved; only indirectly is it against the Greeks, because the Council did not wish to condemn their opinion as heretical,² and on that account employed such a formula as places the doctrine of the Church in safety, without this being proposed as of faith; for it is one thing to define that the Church does not err when she teaches, another to say that what she teaches is of faith: for the Church can teach truths which are certain, although they are not of faith.

¹ Trent, sess. XXIV, can. 7.

² According to Pallavicini (Hist. Concil. Trid., l. XXII, c. 4, n. 27), the canon had first been composed so that it also struck the Greeks with an anathema; but, at the request of the Venetian orators, it was reformed as it now stands, lest a new obstacle be placed before the union of the Greeks.

In the proposition we said the marriage of the faithful, ratified and consummated, because if there is question of the marriage of unbelievers, or of the marriage of the faithful ratified only and not consummated, exceptions can be present, as will be declared below.

719. (A) Scripture. (a) In three places Christ openly declares that adultery is committed by him who marries a dismissed wife: "But I say to you: that everyone who puts away his wife, except for the cause of fornication, makes her commit adultery: and he who marries her who has been put away commits adultery";³ "Everyone who puts away his wife, and marries another, commits adultery: and he who marries her who has been put away by a man, commits adultery."⁴ But if marriage could be dissolved as to the bond, adultery would by no means be committed by him who married a dismissed wife.

³ Matt., V, 32.

⁴ Luke, XVI, 18; cf. Mark, X, 11-12.

(b) The same is clearly drawn from the words of the Apostle:¹ "But to those who are joined in marriage I command, not I, but the Lord, that the wife not depart from the husband; but if she has departed, let her remain unmarried, or be reconciled to her husband. And let not the husband put away the wife." Now these words are entirely general and manifestly suppose that a dismissed wife, for whatever cause, cannot marry again.

¹ I Cor., VII, 10.

(c) Indeed the words of the Lord are objected: "Whoever shall put away his wife, except on account of fornication, and shall marry another, commits adultery: and he who shall marry her who has been put away, commits adultery";² from which both the Greeks and Protestants gather that in the case of fornication, or adultery, the matrimonial bond can be dissolved. We indeed acknowledge that a text of this kind, if taken by itself, apart from the context and parallel places, is obscure and can be understood in either sense; but, with the context and parallel places inspected, it cannot be understood of divorce as to the bond, but of dismissal alone without dissolution of the bond. This is clear from the context. For the Pharisees were asking Christ concerning dismissal alone; for since they were disputing among themselves whether it was lawful to put away a wife for any cause, or only for adultery, Christ answers that the wife can be dismissed (perpetually) only on account of fornication; and because He wished to abolish divorce from the bond, He adds that it is not lawful, even in this case, to marry a dismissed wife under pain of adultery. In other words, the words "except on account of fornication" constitute an incidental proposition, which is referred to the preceding words "shall put away his wife," but not to the following words "and shall marry another," so that the sense is: whoever shall put away his wife (which indeed is not lawful except on account of fornication), and shall marry another, commits adultery. Therefore fornication, or adultery, is indeed a sufficient reason why the wife may be dismissed, that is, why separation from table and bed may be made, but not why a new covenant may be entered.³

² Matt., XIX, 9; cf. Fillion, Evang. selon S. Matthieu, in this place.

³ This can be illustrated by an analogy. Let some law be supposed to be conceived thus: "Whoever shall strike his son, except on account of a grave crime, and shall kill him, will be punished"; surely the incidental proposition in this case affects only the prior part of the sentence, not the latter; nor will it be lawful to conclude that the father can, on account of grave crimes, kill his son. Cf. Rene de Kerallain, Revue gen. du droit, 1884, p. 481.

In reality, a little before He had said: "what God has joined, let not man separate," and had declared that the bill of repudiation was no longer granted under the New Law, by these words sufficiently showing that the matrimonial bond is dissolved in no case. - There are added the parallel places already cited, in which without any restriction it is asserted that he who puts away his wife and marries another commits adultery, and again that he who marries a dismissed wife commits adultery. Now it is an unshaken principle that obscure places must be understood through other clearer ones.¹ Finally every doubt, if any remained, is removed by Catholic tradition.

¹ Some Protestants have understood this, for example, E. J. Phelps, Forum, December 1889, p. 359.

720. (B) Tradition. Three times can be distinguished in the history of this dogma. (a) It is certain that the Fathers, in the first three centuries, with unanimous mouth teach that Christian marriage is indissoluble, even in the case of adultery. It will suffice to report a few testimonies.² Hermas indeed has these things concerning the manner of acting toward an adulterous woman:³ "What therefore, I said, lord, should the husband do if the wife remains in this lust? Let him dismiss her, he says, and let the man remain by himself; but if, after his wife has been dismissed, he marries another, he himself commits adultery." In the same sense wrote St. Justin,⁴ Athenagoras,⁵ Clement of Alexandria,⁶ and many others. - But although the Fathers agreed concerning this matter, certain rulers of the Church, according to Origen's testimony, sometimes tolerated divorce permitted by civil law, in order to avoid worse evils. He censures them, saying: "Against the law of Scripture, certain rulers of the Church permitted a woman to marry while her husband was living, acting against that which is written: The woman is bound by the law for as long as her husband lives." Yet he excuses them in some way, without approving their manner of acting: "Nevertheless they did not permit this altogether without reason; for it is likely that, against the law established and written from the beginning, they permitted these things, to avoid worse evils, accommodating themselves to the judgment of another."¹ Thus the way was being prepared, in the Greek Church, for the abuses of a later age.

² See the matter thoroughly discussed in Perrone, l. III, c. 3; Roskovany, op. cit., De Indissolubilit. matrimonii, c. IV, Doctrine of the Church, § 101 sq. Cf. A. Esmein, Le Mariage en Droit Canonique, Paris, 1891; Watkins, op. cit., p. 198 sq.

³ Pastor, Mandat. 4, n. 6, p. 475, ed. Funk.

⁴ Apol. I, n. 15; Apol. II, n. 2, P. G., t. VI, p. 350.

⁵ Leg. pro christ., n. 32.

⁶ Stromat., l. II, c. 23, P. G., t. VIII, p. 1095.

¹ Origen, homil. 14 in Matt., n. 23, P. G., t. XIII, p. 1246.

(b) From the fourth century to the decree of Gratian (1115), a distinction must be made between the Eastern Church and the Western Church. In the East, some writers, too easily assenting to civil laws which permitted divorce on account of adultery, a long absence of the husband, and other causes, first timidly, but afterwards more boldly, taught that divorce was to be tolerated, while the bishops at first dissembled and afterwards even approved, especially after the schism had been consummated.² The Holy See more than once disapproved these abuses; and in the Council of Florence, where there was question of union with the Roman Church, Eugene IV, in the decree to the Armenians, again declared the doctrine concerning the firmness of marriage: "Although, on account of the cause of fornication, it is lawful to make separation from bed, nevertheless it is not lawful to contract another marriage, since the bond of a legitimately contracted marriage is perpetual." The Greeks, for the time, gave assent to this declaration, and when there was question of union they did not mention this among the causes of dissension; but a little afterwards they returned to their practice. Today also some Orientals who have embraced the Catholic faith, although speculatively they admit our doctrine, in practice tolerate divorce on account of adultery.

² Cf. Perrone, op. cit., t. III, pp. 359-376; Watkins, op. cit., pp. 346-362.

But in the Latin Church, which strongly resisted the emperors, especially in matters of faith and morals, the firmness of the matrimonial bond was happily preserved. For although civil law permitted divorce, the Fathers refused to admit its force and authority, agreeing with St. Jerome, who wrote:³ "The laws of the Caesars are one thing, those of Christ another; Papinian commands one thing, our Paul another... Among us, what is not lawful for women is equally not lawful for men, and the same servitude is judged by an equal condition." This especially obtained in Italy, where the Roman Pontiffs watched over the indissolubility of marriage so carefully that even Protestants acknowledge that the Church in no way wavered concerning this matter.⁴ Thus Innocent I, in the year 405, wrote to Exsuperius, Bishop of Toulouse:¹ "Your charity has also asked concerning those who, with repudiation intervening, were joined to another in marriage. It is manifest that these are adulterers on both sides. But those who, while the wife is living, although the marriage seems to have been dissociated, hastened to another union, cannot but be seen as adulterers." This letter was often alleged by the Roman Pontiffs as the norm to be followed. But in Gaul, Ireland, and England, there were a few particular councils which, favoring more than was right the authority of kings and of civil laws, admitted some causes of divorce, such as incestuous adultery, incurable leprosy, and the entrance of one spouse into religion.² But the other provincial councils rejected every cause of divorce and constantly defended the firmness of the bond against the dissolute morals of the people and the vexations of princes, so that the few exceptions alleged above rather confirm the general rule.

³ Ep. 77 ad Oceanum, n. 3, P. L., t. XXII, p. 691.

⁴ Thus Watkins, op. cit., p. 380, who nevertheless adds that a single Pontiff, Gregory II, admitted a single exception in a particular case; concerning this case, which pertains to bigamy rather than to divorce, we have already spoken above, n. 709; it suffices to add here that elsewhere, in the Instruction concerning marriages (year 722), the same Gregory openly sets forth his mind concerning the perfect indissolubility of marriage, as may be seen in Mansi, t. XII, p. 259.

¹ In Migne, P. L., t. XX, p. 500.

² Thus the Synod of Verberie (753) and the Council of Compiegne (756), held under King Pepin, in Harduin, t. III, pp. 1990 sq., 2005 sq.; the second Synod of St. Patrick, in Mansi, t. VI, p. 526, which, although it cannot be ascribed to St. Patrick, nevertheless is very ancient; Paenitentiale Theodori, in Haddan and Stubbs, Councils, vol. III, p. 188. - Some theologians, such as Perrone, have attempted to understand the aforesaid canons in a Catholic sense, but in vain, as will be clear to anyone attentively reading them. To bring forward one example, canon 9 of the Council of Verberie has itself thus: "If anyone, compelled by inevitable necessity, shall have fled into another duchy or province, or shall have followed his lord, to whom he cannot lie in faith, and his wife, though she is able and can do so, out of love of her relatives or of her goods, refuses to follow him, she shall remain always unmarried for all the time, as long as her husband, whom she did not follow, lives. For that husband of hers, who, compelled by necessity, fled into another place, if he hopes never to return to his own country, if he cannot abstain, can receive another wife with penance." Nor is it astonishing that a few particular councils erred, since only the universal Church, speaking through an ecumenical Council or through the Roman Pontiff, is infallible. Cf. Perrone, op. cit., pp. 323-359; Watkins, op. cit., pp. 362-437.

(c) Finally, from the time of Gratian, no variations can be found in the Latin Church, even in particular Councils. For the authority of the Decree was accepted everywhere; now concerning the indissolubility of marriage it has these things: "The bond of marriage cannot be dissolved by fornication. By no reason is a marriage dissolved which is proved once to have been entered. He commits adultery who presumes to marry her who has been dismissed by a man." Nor indeed can the unconquered firmness of the Church be praised too much: she has always been intent on protecting the perpetuity of marriages, openly reproving civil laws concerning divorce, striking with anathema the Protestant heresy concerning repudiations, resisting most powerful princes when they menacingly demanded that divorces made by them be approved by the Church.

"In this matter all posterity will admire the proofs of an unconquered soul put forth by Nicholas I against Lothair; by Urban II and Paschal II against Philip I, king of the French; by Celestine III and Innocent III against Philip II, prince of the French; by Clement VII and Paul III against Henry VIII; finally by Pius VII, that most holy and most strong Pontiff, against Napoleon I, exulting in favorable circumstances and in the greatness of empire." (Leo XIII, Arcanum.)

721. 1° State of the question. Most pagan philosophers judged that marriage is dissoluble by natural law, and divorces flourished more or less among most nations.² Nevertheless, even among certain barbarians, the matrimonial union was perpetual. Among the Greeks and Romans, as long as morals flourished, there were only a few divorces; at Rome especially a certain ignominious mark was branded on this practice in the common estimation, and Spurius Carvilius, who is reported as the first of the Romans to have dismissed his wife on account of sterility so that he might marry another, did not lack reproach. But in the time of the Emperors divorces were multiplied. The Christian religion took care to abolish divorces, as we have already proved. But Protestants again opened the way to divorces by teaching that they are licit in some cases; and very many Rationalists taught that the dissolution of the matrimonial bond is not only licit, but also useful and laudable in many cases, among whom were: Diderot in France, Werkmeister and Braun in Germany, Bentham in England, Ferrari in Italy, and others; hence Politicians in various States established laws by which divorces were permitted on account of various causes.¹ Therefore it is expedient that we set forth what right reason teaches concerning the indissolubility of marriage.

¹ St. Thomas, Supplement, q. 67, aa. 1-2; C. Gent., l. III, c. 123; Bellarmine, c. 16; de Rastignac, Accord de la revelation et de la raison contre le divorce, 1790; Barruel, Lettres sur le divorce, 1789; de Bonald, Du Divorce considere au XIXe s., 1801; Hume's Essays, XIX; Carriere, n. 213 sq.; Perrone, l. III, sect. II, c. 1, a. 1; Palmieri, th. 16, 23; Woolsey, Divorce and Divorce Legislation, 1882, c. VI; Monsabre, Careme 1887, 86-87th Conferences, English Confer. on Marriage, II-III; Fonsegrive, Mariage et union libre, p. 90 sq.

² On this see Westermarck, op. cit., ch. 23, pp. 486-502.

¹ That the number of divorces increases where the civil law favors divorce is clear from experience:

Thus, in the Federated States of America, according to the official census recently published (1908), divorces were multiplied three times faster than the number of citizens (cf. Howard, Is the freer granting of divorce an evil? in American Journal of Sociology, May 1909; The Catholic Encyclopaedia, Appleton, New York, t. V, pp. 66-69).

In France:

In Germany likewise the divorces which in the year 1881 were counted as 3,942 were already 6,582 in the year 1891, and in the year 1899 many more, namely 9,333, etc.

R. Lemaire, Le Mariage civil, pp. 197-198, shows that the same progress has prevailed in other regions. In the same place, p. 205, it is proved that there are fewer divorces among spouses who have lived longer together than among those who have cohabited only for a few months or years.

Therefore let Catholic deputies strive with all their strength to abolish civil laws favoring divorce, or to prevent them from being established in regions where they are not in force.

722. Now it is certain that divorce permitted simply to the judgment of the spouses, from any motive whatever, is repugnant to the natural law, since the education of offspring requires a certain stable society of the spouses. But if the question is of divorce granted by public authority on account of grave reasons, some theologians, such as Sanchez and Swartz,¹ deny that it is prohibited by natural law alone; others, on the contrary, such as Scotus, Alphonsus Tostatus, and St. Ligori,² affirm it; finally others with Perrone distinguish, and establish that the indissolubility of marriage does not pertain to the primary natural law, but flows from secondary law. This last opinion indeed seems to us to be embraced. For (a) on the one hand, the primary end of marriage, namely the procreation and education of offspring, even if the conjugal bond is sometimes dissolved, can strictly speaking be obtained; indeed in some cases, for example, when the wife is sterile or suffers from a perpetual disease which prohibits the use of marriage, that primary end is better obtained through divorce; (b) on the other hand, there are so many evil consequences flowing from divorce, especially with regard to offspring, that it is deservedly called contrary to the secondary natural law, as will now be declared.

¹ Sanchez, l. II, disp. XIII; Bellarmine, c. IV, n. 2; Swartz, Instit. juris publici, part. II, tit. I, n. 3 sq.

² St. Alphonsus, Theol. moralis, l. VI, n. 956, with the authors there alleged.

723. 2° Thesis: The indissolubility of marriage, especially of consummated marriage, rests on the secondary natural law, and therefore divorce, on account of the evil consequences which it introduces, must be altogether rejected.

For that is opposed to the secondary natural law which, although it does not destroy the primary end of marriage, nevertheless prevents this from being obtained integrally, and besides is repugnant to the nature of marriage, greatly harms the secondary ends, and introduces evil consequences for society. But such is the case with divorce.

724. (A) For although it does not absolutely stand in the way of the primary end, as was said in n. 722, nevertheless it prevents this from being obtained integrally. For the primary end is the good education of offspring: for marriage was instituted principally for this, that offspring not only be generated, but rightly educated, and thus the good of the whole of society and humanity be promoted. Wherefore, although in certain cases the spouses would be unhappy by living together, the good education of offspring, which regards the common good,¹ must be preferred to their private happiness. These things being posited, it is easily proved that divorce generally harms the good education of offspring. For the child needs the help of both parents, not only at the time when he is born, but for many years (above, n. 684); in the beginning indeed he is nourished by the mother, but the father must at the same time supply to the mother the necessities of life; as the children grow, not only the sweet love and provident care of the mother are desired for their education, but also the severe authority and outstanding prudence of the father. Now for this there is required a stable, indeed, from things commonly occurring, perpetual union of the spouses; for before the education of all the children has been perfected, which often must be extended even beyond the twentieth year, the parents, now advanced in age, generally will no longer be fit for a new marriage. Besides, if they enter a new covenant, the children will adhere either to the father or to the mother: if the former, they will lack the tender love of the mother, and will suffer many things from the envy of the stepmother, who, intent upon her own offspring, will neglect them or even afflict them in various ways; if the latter, they will be deprived of the enjoyment of paternal love at the time when they will have greater need of his care, and perhaps they will suffer many things on the part of the second husband, who fears lest his own children be neglected; therefore in either hypothesis their education will be imperfect. - Besides, offspring, in order to be rightly educated, needs not only a family, but its own family, since paternal love cannot be delegated.

¹ Fonsegrive, op. cit., pp. 283-294 and 310-319.

725. (B) Divorce likewise prevents the nature and equality of the contract from being integrally preserved: (a) For marriage by its own nature demands perpetuity: for both spouses by copulation become one flesh, and by generating children are bound by a new and most close bond, namely by the offspring generated, which is common to each parent and from which neither can be separated without losing something of himself or herself: therefore if, while the other spouse is living, new nuptials are entered, what nature had so closely joined is divided. (b) Moreover the equality of the contract requires that, when divorce occurs, one of the spouses not be in a worse condition than the other; but this is morally impossible; for the man has lost nothing or little of his dignity, and can easily enter a new covenant, while the woman, who was married for very many years, and brought forth and nourished children, after she is dismissed by the man generally falls from her dignity, has lost beauty and fecundity, and can scarcely hope that she can contract a new marriage. "If therefore," says St. Thomas,¹ "someone, taking a woman in the time of youth, when both beauty and fecundity are present to her, could dismiss her after she has become advanced in age, he would inflict harm on the woman against natural equity."

¹ Cont. Gent., lib. III, cap. 123.

726. (C) Divorce harms the secondary ends, namely the true happiness of the spouses: (a) It favors unequal marriages and those hastily entered; for, if it is lawful to break the matrimonial bond after some time, many will enter the matrimonial state with a light heart, without diligent and mature consideration,² while marriages will be established with greater care and only after the matter has been diligently weighed, if it is known that perpetual happiness or unhappiness depends on the choice of a spouse. Now nothing harms the union of spouses more than those marriages in which the spouses, unequal in mind, dispositions, and condition, are joined together under the impulse of blind love, or rather passion.

² "Many of the common people contract nuptials, probably considering this with themselves: if they do not obtain happiness in this union, it will be in their power to dissolve it and try fortune again. And in truth it was reported to me by a certain minister that conversations of this kind had been held by some youths of his parish." Woolsey, a Protestant, op. cit., p. 277.

(b) It restricts mutual love; for the happiness of spouses consists chiefly in this, that they be intimately united by perpetual love, and be one heart and one soul, just as they are one flesh; hence, with nature as guide, they promise to each other eternal love, and in that love they find the alleviation of miseries and happiness; for where one loves, one does not labor, or if one labors, the labor itself is loved. But that intimate conjunction of souls can scarcely subsist with the faculty of divorce; for true love wishes to be perpetual, and as soon as we suspect that a friend will probably be unfaithful, we already cease to love him singularly. Who therefore will intimately adhere to a spouse from whom he expects to be separated after some years, and perhaps after some months? Will not suspicions of this kind destroy or retard this perfect friendship? Therefore rightly it can be said with St. Thomas (loc. cit.): "The greater friendship is, the more firm and lasting it ought to be. But between man and woman there seems to be the greatest friendship; for they are united not only in the act of carnal copulation, which also among beasts makes a certain pleasant society, but also for the fellowship of the whole domestic life; whence, as a sign of this, a man because of his wife also leaves father and mother... Therefore it is fitting that marriage be altogether indissoluble."¹

¹ Nor let it be said that it is not lawful for a man to bind himself by perpetual vows, since he is by nature inconstant and changeable; for, as Paul Janet rightly says (La Famille, p. 300): "If love is bound by the bond of duty, so that it is held to promise perpetual fidelity, this is not opposed to the nature of love, indeed it is favored. So much does the nature of love demand perpetuity, that no lover would dare to ask anything without promising perpetuity. To strengthen fidelity by oath forever, and to feign the same even when he speaks with fiction, are the first acts of love; if these are lacking, he would waste his effort. - They object the rights of the heart and the perpetuity of vows. We freely acknowledge the rights of love for binding the union of spouses, by no means for dissolving it. Let us oppose fidelity to liberty; and thus the heart has claimed for itself a nobler dignity and more splendid glory than if it were lawful to adhere to another as it pleased, and continually change the object of love... I confess, however, that only on account of grave arguments is the heart to be bound by an indissoluble bond. But these two seem irrefutable to me: the dignity of the wife and the good of the children."

(c) It increases slight disagreements, on account of the hope of finding happiness in another marriage. Indeed it is of the greatest interest to domestic society that spouses forgive many things to each other, patiently bear one another's defects, and indeed anticipate one another by mutual services. But if marriage is indissoluble, spouses fear lest through disagreements the yoke which they cannot shake off become most grave and intolerable; they more patiently forgive one another's defects, and, as the poet says, whatever it is wrong to correct becomes lighter by patience; but on the contrary the hope of divorce provokes dissensions, quarrels, and adulteries; for he who thinks of finding a new and better spouse will soon be seized by a foreign love, and in order that he may break apart the marriage burdensome to himself, he will indulge insults, reproaches, blows, and adulteries, so that, experience bearing witness, divorce is the occasion and cause of the greatest crimes.² Nor let it be said that adultery is so base and wicked that at least on account of that crime the bond of marriage ought to be dissolved; for, if the matter is so, adulteries will not rarely be committed for the purpose of obtaining divorce, as jurists know by experience;¹ therefore it is expedient for the public good that spouses either cohabit peacefully, or be separated as to bed and habitation, without hope of entering new nuptials.

² "How many futile quarrels, how many wearinesses do those endowed only with common prudence wear away by easy forgetfulness, led especially by this reason, that life must necessarily be carried on together by them perpetually! Those very small dissensions would have yielded to the greatest envy, brought to the highest degree by the hope of easy divorce. Therefore we must weigh that nothing is fuller of danger than to join two so intimately, as man and wife are joined to each other, unless we render this union perfect and indissoluble. The least probability of separation would become a most abundant source of dissensions and suspicions; the wife, less secure about her state, will daily turn over in her mind the plan of separation, and the husband, consulting only himself and relying on greater power, would bring the union into greater danger." (Hume, Essay XIX.)

¹ "It is known to all that the desire of freeing oneself from that state which has become burdensome has led several men and some women to that manner of life which produces divorce, or at least persuades them that, if it should happen, it will not be unwelcome to the spouses. Chancellor Kent rightly noted from several judgments issued concerning divorce that a man had sometimes committed adultery for the sake of obtaining divorce. Among other nations the history of marriage warns us that corrupt morals are increased to the degree that more causes of divorce are furnished, which not only do not prohibit divorce, but rather prepare the way for it." (E. Phelps, Forum, December 1889, p. 363 sq.; cf. Woolsey, op. cit., p. 261 sq.)

727. (D) Divorce introduces evil consequences for society: (a) it disturbs the peace of families; for by marriages families are united with each other, lawsuits and enmities are extinguished, bonds of concord among the various members of society are formed; but on the contrary, from divorce divisions arise, hatreds and acts of vengeance flourish between two or several families for many years, and if they are multiplied, the peace of society itself is disturbed.

(b) It corrupts morals; for the faculty of divorce gradually turns marriage into concubinage: for given the inconstancy of man, the conjugal bond can be broken not once, but three times, four times, or even more often, all the more because inconstancy increases by repeated acts; and history shows that this has already happened: for Seneca speaks of those wives who "reckon their years not by the number of consuls, but of husbands";² and Juvenal says:³ "Thus eight husbands are made through five autumns: a matter worthy of the title of a sepulcher." The same is the case in our days among tribes or nations where divorce flourishes.¹ Now what are marriages that will last for only two or three years, except concubinage covered with a cloak? Nor does it help to say that by divorce disagreements and separations are diminished: for it is clear from undoubted facts that these have increased where divorces have been permitted, and that they grow stronger daily. Besides, a law of this kind furnishes occasion for many crimes, but especially for adultery, which is committed or permitted by some for this purpose, that the conjugal bond may more easily be dissolved before tribunals. Now who is there who does not see that by all these things morals are gradually corrupted?

² De Beneficiis, l. III, c. 16.

³ Sat., VI, v. 229.

¹ To the point Westermarck, op. cit., p. 488: "At Cairo, according to Mr. Lane, there are only few people who have not divorced once, if they have been married for some time; and many men, in Egypt, have married twenty, thirty women or more; while there are women, not far advanced in age, who have been wives successively of twelve men or even more."

Leo XIII clearly sets forth all these things thus (Encycl. Arcanum): "But indeed it hardly needs to be said how much material of evil divorces contain in themselves. For on account of them marital covenants become changeable; mutual benevolence is weakened; pernicious incentives are supplied to infidelity; harm is done to the protection and education of children; occasion is given for dissolving domestic societies; seeds of disagreements are scattered among families; the dignity of women is lessened and depressed, and they come into danger lest, after they have served the lust of men, they be held as abandoned. And since nothing is so powerful for destroying families and breaking the strength of kingdoms as the corruption of morals, it is easily perceived that divorces are exceedingly hostile to the prosperity of families and states; for they are born from the depraved morals of peoples, and, with experience as witness, they open the entrance and gate to more vicious customs of private and public life. And it will be clear that these evils are much graver if it is considered that there will be no restraints so great that they can keep the faculty of divorces, once granted, within certain or previously foreseen limits. Truly great is the force of examples, greater that of passions: by these incentives it must happen that the desire for divorces, creeping more widely every day, invades the souls of very many, like a disease spread by contagion, or like a mass of waters overflowing after the barriers have been overcome."

728. The adversaries object that not a few spouses lead a miserable life unless they are separated from each other, and that often separation does not suffice, but the faculty of entering new nuptials is required, so that not only the perpetual unhappiness of the spouses, but also adulteries and scandals may thus be avoided.

Resp. (a) The norm of morals is not the happiness of private persons, but the dictate of right reason, which, from what has already been said, demands the perpetuity of the bond, especially for the good education of offspring, which is one of the primary ends of marriage (n. 724), and for avoiding innumerable evils for the family and society (n. 727). Therefore, although certain private persons must suffer many and difficult things from the indissolubility of the contract, nevertheless the law is not therefore to be changed, because the moral good must be preferred to the temporal good, and the public good to the private good. (b) But adulteries and scandals which are said to arise from the perpetuity of the bond have become not rarer but more frequent in France and other regions from the time when divorces were permitted by law, as experience shows;¹ nor is it astonishing, since the hope of passing to new nuptials is accustomed not to extinguish concupiscence, but rather to inflame it.

¹ Which Fonsegrive proves, op. cit., p. 203.

Therefore prudence demands that other remedies be applied, namely either Christian patience or temporary withdrawal: for time heals many wounds, and often long patience lessens or wholly removes dissensions of souls, especially if it is helped by the virtue of religion: "which brings it about that vices, if there are any in the persons, such as difference of morals and dispositions, the weight of maternal cares, the laborious solicitude of the education of children, the labors that accompany life, adverse events, are borne not only moderately, but even willingly" (Encycl. Arcanum).

From what has been said, the marriage of the faithful, ratified and consummated, can be dissolved by no human authority; but a marriage contracted by unbelievers, since it is not a sacrament, does not have the same firmness; likewise the marriage of the faithful, ratified indeed, but not consummated, can be dissolved in two ways: by religious profession and by dispensation of the Supreme Pontiff. Concerning these we must now briefly discuss.

729. Thesis: The marriage of unbelievers, even consummated, can be dissolved as to the bond, if, when one has been converted to the faith, the other is unwilling to cohabit peacefully, or without injury to the Creator or spiritual harm to the faithful party. It is certain from the declaration of Innocent III:¹ "For if one of the unbelieving spouses is converted to the Catholic faith, while the other is willing to cohabit with him either in no way, or not without blasphemy of the divine name, or so as to draw him into mortal sin, the one who is left will pass, if he wishes, to second vows: and in this case we understand what the Apostle says: if the unbeliever departs, let him depart..." - A privilege of this kind is called the privilege of faith, because it was granted in favor of the faith; it is also called Pauline, as promulgated by St. Paul.

² St. Thomas, Supplement, q. 69, a. 5; Sanchez, l. VIII, disp. 74; Drouin, l. IX, q. IV, c. 1, § 3, dic. 2; Billuart, Diss. V, a. 2, § 2; Benedict XIV, De Synodo, l. VI, c. 4, n. 3; J. Leplat, Collectio variarum dissertationum casum Apostoli illustrantium; St. Alphonsus, n. 957; Carriere, n. 256 sq.; Perrone, l. II, sect. 1, c. 7, a. 2; Palmieri, th. 26-27; Ballerini P., n. 429-473; De Angelis, lib. IV, tit. 19, nn. 6-11; Gasparri, nn. 1083-1110; Putzer, nn. 127-132; Wernz, nn. 701-705.

¹ Decretal., l. IV, tit. 19, c. 7.

730. (A) Scripture. For Paul, after promulgating the general law of the indissolubility of marriage, adds these things: "For to the rest I speak, not the Lord.² If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away... But if the unbeliever departs, let him depart: for a brother or sister is not subject to servitude in such cases"³... Now by these words the Apostle grants the faculty of dissolving the matrimonial bond for the cases expressed in the thesis; for (a) here Paul grants to the converted faithful party a special privilege, and indeed for determinate circumstances; but if there were question only of separation from bed and table, and not of dissolution of the bond, a special privilege would not be given, since separation is the common remedy in a similar case; besides, no declaration was needed that the faithful spouse be freed from cohabitation, since by hypothesis it is impossible; therefore there is question of dissolution of the bond; (b) it is added that the faithful party is no longer subject to servitude; now servitude of this kind, the departure of the unbelieving party having already been carried out, can be nothing other than the matrimonial bond itself, which in reality the Apostle below (27) calls a bond; this is confirmed from the fact that speech of this kind is directed to the newly converted, among whom the dissolution of marriage, but not simple separation, flourished, and who therefore by the word "let him depart" naturally understood the dissolution of the bond; (c) finally the force of the argument grows if one notices the antithesis which Paul establishes between marriages of the faithful, concerning which he says (11) that if the man departs, the woman must remain unmarried, and the marriages of unbelievers, concerning which he writes: "but if the unbeliever departs, let him depart"; for by this opposition he sufficiently shows that in the last case there is question of a true dissolution of the bond.¹ We acknowledge, however, that the argument is not apodictic unless the practice and authority of the Church accede.

² More probably these words are referred not to the following sentence, but to the preceding one, where the Apostle had spoken of widows and virgins; and the sense is that those things which he wrote concerning preserving virginity are not a precept, but a counsel. Cf. Corluy, Spicilegium, vol. II, p. 489.

³ I Cor., VII, 12-15.

¹ The Apostle speaks directly only of the case in which the unbeliever does not wish to dwell with the converted spouse; but the two latter cases are included in the first: for he departs morally who does not wish to cohabit except with injury to the Creator, or by drawing the faithful spouse into sin.

731. (B) From the authority and practice of the Church: (a) Most of the Fathers indeed were silent concerning this, because there was no opportunity for them to write concerning this matter; nevertheless some, such as Ambrose, Chrysostom, Theophylact, and others, spoke in such a way that they seem to have held the doctrine set forth above.² (b) Innocent III (1160-1216) openly declared the matter, and from his time this practice became common in all the churches established among recently converted nations. Now a practice of this kind is connected with the dogma of the indissolubility of marriage, and with good morals; it was approved many times by the Roman Pontiffs, who handed down rules to be observed by Missionaries in that case; therefore it is an unconquered argument of truth, since the Church cannot err in a matter of such moment.

² See their testimonies in Carriere, n. 258, note 1.

732. Controversy. Theologians further ask by what law the marriage of unbelievers is dissolved in the aforesaid case.

(A) Some indeed, such as Navarrus, Sanchez, and Palmieri,³ have thought that this is done by the authority of the Supreme Pontiff: for if, they say, the Roman Pontiff can dissolve a ratified marriage, which is a sacrament, he can also a fortiori dissolve the consummated marriage of unbelievers, which has less firmness. Besides, the Roman Pontiffs have asserted this power for themselves, namely Pius V (Romani Pontificis) and Gregory XIII (Saepe contingit); for the latter granted to the Ordinaries of certain places the faculty of dispensing so that any faithful person, "even while the unbelieving spouse survives and his or her consent has in no way been required, nor the response awaited, may be licitly able to contract marriages with any faithful person, otherwise however rightly, and afterwards, these having been consummated by carnal copula, to remain in them as long as they live."

³ Navarrus, consil. 3, lib. III, n. 12 sq., tit. de Conversione infidelium; Sanchez, lib. II, disp. XVII; Palmieri, th. 26.

733. (B) Nevertheless the more common opinion, with Benedict XIV,¹ holds that the consummated marriage of unbelievers is dissolved by divine law, as it is set forth by St. Paul. For, they say, at least that principle is very doubtful, namely that a marriage consummated between unbelievers is less firm than a ratified marriage between the faithful: for although it is not a sacrament, nevertheless it is a true matrimonial contract; moreover every contract of this kind was recalled by Christ to its former indissolubility. Nor can the contrary be argued from the Letters of Pius V and Gregory XIII, which are explained in two ways: (a) according to some, they are understood not of the power of dissolving marriage outside the Pauline case, but only of a dispensation from making the interpellation; for in the Brief of Pius V it is read: "especially because it would be most difficult to find the first spouse"; but in the Letters of Gregory XIII: "Provided it is established, even summarily and extrajudicially, that the absent spouse cannot be legitimately warned, or that the husband did not signify his will within the time fixed beforehand for that warning." All these things surely show that there is question there of dispensation from interpellation, and that the aforesaid Pontiffs granted this not outside the Pauline privilege, but as interpreters of divine law. (b) But according to others, the Pauline privilege is indeed founded on divine law, but the dispensation granted by the two Pontiffs mentioned differs altogether from the Pauline privilege; for Gregory XIII granted the faculty of dissolving marriages contracted in infidelity, even in the case where the absent spouse had been regenerated by baptism:² "Which marriages indeed, even if it should afterwards become known that the prior unbelieving spouses, being justly impeded, could not declare their will, and had been converted to the faith even at the time of the second marriage transacted, nevertheless must never be rescinded." Now the Pauline privilege certainly is not extended to this case. Therefore it must be said that the Pontiff granted this special dispensation, not by virtue of the Pauline privilege, but by force of the ministerial power by which he can dissolve the ancient marriages of neophytes not yet consummated after the conversion of one spouse; which power is similar to that by which a ratified and non-consummated marriage is dissolved below, n. 742; since the marriage of which there is question had indeed been consummated in infidelity, but not from the time when it had been ratified by the conversion of both spouses.

¹ Benedict XIV, De Synodo, l. VI, c. IV, n. 3; lib. XIII, c. 21; cf. de Angelis, op. cit., l. IV, tit. 19, p. 327 sq.

² This especially occurred at the time when slaves were being carried from Africa to America; for many of them had already contracted marriage and had been violently separated from the spouse. When they were converted to the faith, interpellation was impossible, since where the other spouse was was wholly unknown; sometimes it also happened that the other spouse, left in Africa, was converted to the true faith. In this case, there was no place for the Pauline privilege. Now the Supreme Pontiff permitted that slaves of this kind contract a new marriage, and therefore by his authority he dissolved the prior marriage. Cf. Gury-Ballerini, note to n. 759, p. 736, q. 4; Billot, th. 44.

734. Practical corollaries. (A) The conjugal bond is not dissolved at that instant when one of the spouses is converted to the faith or is baptized; for, as Innocent III says (loc. cit.), "through the sacrament of Baptism marriages are not dissolved, but crimes are remitted"; only then is it dissolved when the converted spouse, the other refusing to cohabit peacefully, has entered a new marriage. For Innocent III (loc. cit.) openly supposes this: "but if that woman, having been converted, follows the man converted to the faith (the wife, namely, who had previously refused to cohabit), before he, on account of the aforesaid causes, marries a lawful wife, he will be compelled to receive her"; therefore the prior bond remains until a new covenant is contracted. It is also clear from the decision of the Sacred Congregation of the Council, 1680 and 1726, which Benedict XIV, loc. cit., n. 4, reports and approves. The reason is that the privilege is in favor only of the converted person, lest he be compelled to remain celibate: it is enough therefore that the prior bond be dissolved at the instant when the new one is formed.

Hence if the unbelieving spouse has contracted marriage before the new nuptials of the faithful party, this is null. But as soon as the Catholic party has entered marriage, the other spouse, whether he or she remains in infidelity or is converted, can enter another marriage.¹

¹ Sacred Office, July 11, 1886, to the Apostolic Vicar of Natal, in Gasparri, n. 1086; Acta, XXII, 747. - We say the Catholic party, so that we may separate certain things from uncertain. Nevertheless, more probably, we think the Pauline privilege is extended not only to those who embrace the Catholic faith, but also to those who embrace a heretical or schismatic sect, provided that they are validly baptized. Thus Palmieri, th. 27; Konings, II, p. 394, where he asserts that this was acknowledged by the Holy See in a particular case.

735. (B) From what was said in the thesis, for a threefold cause the converted spouse can pass to other nuptials: (a) if the unbeliever refuses to dwell with him or her; (b) if he or she wishes to dwell, but not without injury to the Creator, for example by retaining concubines, blaspheming, or educating the children in pagan fashion; (c) if he or she wishes to draw the faithful party to mortal sin against faith or morals: for in these cases he or she does not wish to cohabit peacefully. But the convert can use this privilege not only immediately after baptism but also after several years, if the unbeliever who had previously consented to cohabit peacefully, having changed counsel, no longer wishes to do this.¹

¹ Thus the Holy Office, August 5, 1759, in Collect. P. F., n. 1312.

But if the unbelieving party departs on account of adultery committed by the faithful party after baptism, there is no place for the Pauline privilege, unless the unbeliever himself or herself was guilty of adultery after the baptism of the converted party; for the privilege was granted in favor of faith, not in favor of crime.²

² Thus the Holy Office, August 1, 1759; January 17, 1797, in De Angelis, loc. cit., n. 7, where he clearly explains this matter.

736. (C) The converted party cannot, without dispensation, enter new nuptials except with another Catholic party: if he or she contracts with an unbeliever, the marriage is invalid on account of disparity of cult; if with a heretical or schismatic party, the marriage is indeed valid, but illicit on account of the impediment of mixed religion.

(D) If a faithful person, after a dispensation has been obtained, has entered marriage with an unbeliever, he or she cannot use the Pauline privilege, because he or she spontaneously exposed himself or herself to such danger, and therefore cannot complain. Likewise if either spouse falls into heresy or apostasy, the faithful spouse cannot fly to second nuptials, as is expressly declared by Innocent III (loc. cit.), because a marriage contracted and consummated by the faithful can be dissolved by no human authority.

737. On interpellation specifically. (A) That it may be known whether the unbeliever wishes to be converted, or at least to cohabit peacefully, a certain interpellation is required, at least as often as it can be done, so that the new marriage can be contracted not only licitly, but also validly. Thus commonly, against a few.³ The reason is that the faithful person, before marrying again, must be more certain concerning the contumacy of the unbeliever; but regularly he or she cannot be more certain of this except through interpellation.

³ Ballerini P. (n. 438 sq.) thinks that this interpellation is required for liceity, but not for validity of the new marriage. But the Roman Congregations in particular cases declared invalid a marriage contracted without interpellation, in Gasparri, n. 1090. Hence, according to the Instruction of the Sacred Congregation de Propaganda Fide (at the end of the Third Plenary Council of Baltimore, p. 278), the Ordinary must suspend judgment and remit the case with all its circumstances to the Holy See.

This interpellation must be made after baptism has been received, and regularly two things must be asked of the unbeliever: (a) whether he or she wishes to be converted to the faith; (b) whether he or she at least wishes to cohabit peacefully with the faithful party.

738. (B) If the interpellation is morally impossible, or even very difficult, the Supreme Pontiff is accustomed to dispense from it. He likewise dispenses from the second part of the interpellation, "whether he or she wishes to cohabit peacefully," when it is feared that there is danger of perversion; this is especially verified if the unbeliever is a Jew, because the danger in this case is judged much graver.¹

¹ The Fourth Council of Toledo prohibited that a spouse converted from Judaism cohabit with the partner remaining in Jewish perfidy, on account of the danger of perversion and the absence of any hope of the conversion of the unbeliever; today the practice is that this cohabitation is permitted in unbelieving regions, but not in Christian ones. Cf. Gasparri, n. 1088.

Moreover that power of dispensing from interpellation is granted: (a) when grave necessity is pressing, in which there is not time to have recourse to the Holy See, to all Bishops and Apostolic Vicars; (b) outside this case, by force of a special indult, to certain Bishops, as has been granted, for example, in Canada: nevertheless this privilege is limited to the regions to which it was given.

But before one is dispensed from interpellation, its impossibility must be established, by using all means to discover the place where the unbeliever dwells, for example by affixing an edict to the doors of the church, or by sending a notice to public newspapers; besides, an instrument is to be kept in the archives, from which it is established that the absent spouse could not be interpellated.

When a dispensation from interpellation has been granted, if the faithful party has not contracted a new marriage for a year after the dispensation was obtained, a new dispensation is required if afterwards he or she wishes to contract marriage; or the interpellation must be made, if it has already become possible. - But when a negative response has been given to an interpellation made, new nuptials can be contracted at any time, even after several years.

739. (C) Interpellation can be made in two ways: judicially and extrajudicially. (a) If the former, it must be made by the Ordinary, who calls the unbeliever and asks him or her whether he or she wishes to be converted, or at least to cohabit peacefully; the response is reported in the acts and kept in the archive. If the unbeliever asks for delay for deliberating, it must be granted, adding nevertheless that, after the fixed time has elapsed, a negative response is presumed. But if the unbeliever does not appear, a person is delegated to interpellate him or her wherever he or she can be found.

These things being posited, if the unbeliever responds negatively to both questions, the faithful person can immediately pass to other vows, although from charity it is better to propose a second interpellation. If he or she responds affirmatively to both, the marriage stands. If he or she does not wish to be converted, but consents to cohabit peacefully, the faithful person can indeed be separated from the unbeliever as to bed and table, but not as to the bond. If, however, in the judgment of the Bishop, from cohabitation a danger of perversion or of grave sin would threaten the faithful person, a dispensation from the second interpellation can be sought from the Holy See, so that, after a negative response to the first question, the faithful person can contract new nuptials. - If the unbeliever were to say that he or she wished to be converted, but was unwilling to cohabit peacefully, this response is not serious, but must be held as negative.

(b) It is commonly held that an extrajudicial interpellation, made by the converted spouse himself or herself, suffices for validity; indeed also for liceity, if the judicial form cannot be observed. But for it to be valid in the external forum, it is required that the baptized party, by himself or herself, or through a mandatary, before two trustworthy witnesses, question the unbeliever, and that the latter respond seriously before the same; this having been done, the ecclesiastical judge, after hearing the witnesses, will be able to render a sentence, by force of which the baptized person can enter a new marriage. But if this cannot be done, it suffices that the unbeliever clearly manifest his or her will by a letter written before three witnesses and directed to the faithful party.

740. (D) If a converted unbeliever has several wives, he must retain the first legitimate wife, if she wishes to be converted, unless however a special dispensation is obtained from the Holy See.

In reality, in the Federated States of America, Bishops have the faculty of dispensing with unbelievers having several wives, whether simultaneously (as among the Mormons), or successively (on account of civil divorce), so that, after conversion and baptism, they may retain that wife who pleases them more, if she also is baptized, provided that the first wife, having been duly interpellated, has refused to be converted; in this case therefore they have the faculty of dispensing from the second part of the interpellation, "whether she wishes to cohabit peacefully." - Nevertheless prudence requires that, before a new marriage is entered, the faithful party obtain a full civil divorce, if the prior nuptials are valid before civil law, lest the faithful party be held as guilty of bigamy.

N. B. If offspring has been born from the prior marriage, it is indeed to be handed over to the faithful party, if it is of minor age, so that it may be educated in the Catholic religion; but if it has already attained the years of majority, it must be left to its own judgment.

741. Disputed question. It is further asked whether the marriage of unbelievers, already consummated, can be dissolved by dispensation of the Supreme Pontiff or in some other way, apart from the Pauline case, if one spouse is converted.

Now all admit that the Supreme Pontiff cannot dispense if both spouses are baptized and afterwards consummate the marriage; but it is controverted whether a marriage which was not consummated after baptism can be dissolved. (a) The former opinion affirms that such a marriage can be dissolved, both through religious profession emitted by the baptized spouse, in the manner to be explained below, and through dispensation of the Supreme Pontiff. For Paul III permitted that those who before conversion had several wives, and did not remember which one they first received, once converted, should take one of them whom they wished.¹ St. Pius V granted to a polygamous man that, after receiving baptism, he could marry one of the other wives, who likewise was converted, if the first was not known and it was most difficult to find her.² Besides, Gregory XIII permitted the converted spouse to enter other nuptials when it is impossible to interpellate the unbelieving party; and he declared these nuptials to be valid "even if it should afterwards become known that the prior unbelieving spouses, being justly impeded, could not declare their will, and had been converted to the faith even at the time of the second marriage contracted."³ Now this is not the Pauline case, but is a true dispensation from a legitimate marriage not consummated after baptism, especially because the Supreme Pontiff seems expressly to affirm this in the same place: "For this reason We, considering that marriages of this kind contracted among unbelievers are not to be judged so ratified that, when necessity counsels, they cannot be dissolved." - In reality, if the Supreme Pontiff can dissolve a ratified marriage, which is a Sacrament, as will be said below, he can also a fortiori dissolve a marriage consummated in infidelity, but not ratified, which has less firmness.⁴ - There is added that, according to the Code, can. 1125: "those things which regard marriage in the constitutions of Paul III, St. Pius V, Gregory XIII... and which were written for particular places, are extended also to other regions in the same circumstances," and indeed by the law itself, as seems from can. 1121, establishing that in these cases there is no place for interpellations.

¹ Constit. Altitudo, June 1, 1537.

² Constit. August 2, 1571.

³ Constit. January 25, 1585, in Collect., n. 1307.

⁴ Thus Sanchez, St. Alphonsus, D'Annibale, Ballerini, Palmieri, and also twelve theologians of the Society of Jesus who in the year 1589 presented to the Holy See a disputation concerning this matter, which you will find in Zitelli, De dispensat. matrimon., pp. 183-197.

(b) The latter opinion denies this⁵ and explains the acts of Paul III, St. Pius V, and Gregory XIII as authentic declarations of the Pauline privilege, insofar as the word departs can be understood of moral departure, which is verified whenever the other spouse cannot be found.

⁵ Thus Pontius, Benedict XIV, De Angelis, etc.

Hence in practice recourse should be had to the Holy See, which alone can solve cases of this kind.

742. Principle: The marriage of the faithful, ratified and not consummated, is dissolved by the solemn profession of either spouse in an approved religion, or by a dispensation granted by the Supreme Pontiff for a grave cause.

⁶ St. Thomas, Supplement, q. 61; Sanchez, l. II, disp. 18-23; Drouin, q. IV, c. 3, § 1; Billuart, diss. V, a. 2, § 4; Carriere, n. 302 sq.; Perrone, l. III, sect. 2, cap. 6, a.; Palmieri, th. 25; de Augustinis, th. 10; De Angelis, loc. cit., n. 12; Gasparri, nn. 1081-1092; Lehmkuhl, nn. 703-704; Ballerini P., nn. 476-488, ed. 3; Wernz, op. cit., nn. 690-700.

(A) The first part has been defined by Trent:¹ "If anyone shall say that a ratified marriage, not consummated, is not dissolved by the solemn profession of religion of either spouse, let him be anathema." It is further proved (a) from the express declarations of Alexander III (1180), and of Innocent III (1210), who writes:² "We, however, not wishing to decline from the footsteps of our predecessors, who, when consulted, responded that before marriage is consummated by carnal copula, it is lawful for either spouse, the other being left without being consulted, to pass to religion, so that from then on the other can legitimately be joined to another"; from which it is clear that this doctrine was received before the twelfth century, since the Supreme Pontiff appeals to his predecessors. (b) From the Code, can. 1119: "A non-consummated marriage between baptized persons, or between a baptized party and a non-baptized party, is dissolved both by the law itself through solemn religious profession, and through dispensation granted by the Apostolic See for a just cause, both parties asking or either one, even if the other is unwilling."

¹ Trent, sess. XXIV, can. 6.

² Decretal., lib. III, tit. 32, cap. 14.

It must be noted, however, that a ratified marriage is dissolved only at the time when solemn profession is emitted, not when someone enters religion or emits simple vows; hence the spouse remaining in the world contracts new nuptials neither licitly nor validly before the profession of the other. Moreover, it is not dissolved by a simple vow of chastity, nor by the reception of sacred order, or vows emitted in a Congregation not approved by the Holy See; but only by solemn profession, namely that which has been recognized as such by the Church; therefore not by simple profession, nor by simple vows emitted in the Society of Jesus. It is further required that the profession be made freely, after a probation of at least three years, and after canonical age has been attained, that is, after the twenty-first year has been completed; but since, from can. 542, a spouse is invalidly admitted to the novitiate during marriage, and, from can. 572, a profession is invalid if the novitiate was not valid, scarcely today can there be place for this case.

Formerly two months were granted to spouses for deliberating concerning entrance into religion. The Code did not renew this privilege, perhaps because, with solemn profession delayed until at least the fourth year after the beginning of the novitiate, the other spouse would be compelled longer to preserve continence. Thus A. Blat, Comment., lib. II, p. 11, cap. 2, p. 522; Noldin, n. 497; Marc-Gestermann, n. 1980, note 1. This can be confirmed from can. 1111: "From the very beginning of marriage each spouse has an equal right and duty, as regards the acts proper to conjugal life."

743. (B) The latter part, although previously denied by some, today has become certain by the practice of the Church; for it is clear that, already from the time of Martin V (1417), the power of dissolving ratified marriages for grave reasons was exercised by many Pontiffs,¹ and is exercised even in our days, as is clear from the Acts of the Holy See, where each year some dispensations of this kind granted from ratified marriage are read. Now it is unlawful to say that the Roman Pontiffs usurped this power, especially since by so acting they would have inflicted injury on the sacrament and permitted adulteries. Therefore one must conclude with Benedict XIV:² "No question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing over a ratified and non-consummated marriage, since today the affirmative opinion is common among theologians and canonists, and has been received in practice, as is notorious." - See also can. 1119, reported above.

¹ Cf. St. Antoninus, in Sum. theol., p. III, t. I; Navarrus, Enchir., c. 22; Perrone, vol. III, p. 471, ed. 1861.

² Quaest. Canon., 479.

For the exercise of this power, two things are required: juridic proof of the non-consummation of the marriage, concerning which we shall speak in the Supplement; and a legitimate cause, such as the probable nullity of the marriage, the moral impossibility for the spouses of cohabiting together, fear of future scandal and adultery on the part of at least one of the spouses, a civil marriage already contracted by one party with a third person, etc.

744. Controversy. It is disputed among theologians by what law a ratified marriage is dissolved by religious profession, namely whether by natural, divine, or ecclesiastical law.

(a) Some, with Bellarmine, have thought that this is done by divine natural law; for by natural law it is licit to pass from a less perfect state to a more perfect one, if this can be done without harm to another; but the state of religion is more perfect than the state of marriage, and no harm is otherwise inflicted on offspring, which does not exist, or on either spouse, since each is in an equal condition; therefore. Yet this opinion is commonly rejected; for it is false that it is licit from the law of nature to enter a more perfect state when an obligation already undertaken is opposed to this state; for although the Episcopate is a state more perfect than marriage, it is not lawful to receive it when the spouse is unwilling, nor is ratified marriage dissolved by its reception.

(b) Others, after Suarez, hold that this is done by ecclesiastical law; for the Church can, for a grave cause, dissolve a ratified marriage, as is clear from the things proved; now she has used this power with regard to religious profession; she herself has determined the solemnities of religious profession, and she herself has established that marriage is dissolved by solemn vows but not by simple vows. Yet this opinion is not well reconciled with the Tridentine canon cited above; for if it is of faith that marriage is dissolved by religious profession, this truth had to be revealed by Christ, and therefore the dissolution takes place by divine law, not simply ecclesiastical law.¹

¹ Nor does it help to say that the Tridentine canon is disciplinary, not dogmatic; for the truth proposed by the Council is not that the Church has the power of dissolving ratified marriage, but that marriage is really dissolved by religious profession: which truth indeed is of itself dogmatic, and must always be true; now if such a privilege had been granted by ecclesiastical law, it could be removed by the same authority, and what is declared in the canon would now become false. Cf. Palmieri, loc. cit.

(c) Hence there is a third opinion asserting, with Benedict XIV,² that the dissolution is made by divine law, insofar as Christ placed an exception to the law of indissolubility in favor of the religious state, just as we saw one placed for the marriage of unbelievers. For thus it is understood how Trent could define the matter as of faith, how likewise the Pontiffs who first spoke of this privilege supposed a practice already plainly established, and no protests then arose. The adversaries indeed object that the solemnity of religious profession was instituted by the Church herself; but the difficulty vanishes if it is admitted that marriage in this case is dissolved by law partly divine, partly ecclesiastical. The matter can be conceived thus: Christ determined only in common that marriage can be dissolved by the religious state, leaving to the Church the power of determining in species the conditions which constitute the religious state, and therefore dissolve ratified marriage; for thus it is understood how, with the Church so establishing, solemn vows, but not simple ones, produce this effect.

² Benedict XIV, quaest. can. et moral., q. 546.

745. (d) Finally, a fourth opinion holds that marriage is dissolved by implicit divine law, or by that ministerial power by which the Church dispenses from a vow, an oath, and other impediments, on account of grave necessity. Namely, in the most ample power of the keys conferred by Christ is comprehended a ministerial or instrumental faculty of dispensing from certain obligations induced by divine law, when the spiritual utility of souls requires it. Now the obligation which results from the bond of ratified and non-consummated marriage, although it arises from divine law, is not so perfect that it cannot be dissolved in any way when a grave cause intervenes. This opinion is sufficiently probable, and sufficiently explains why marriage of this kind can be dissolved not only by religious profession, but also by dispensation of the Pontiff, although nothing concerning this matter is found explicitly in Scripture or primitive Tradition.¹

¹ For a fuller exposition of this opinion, see Billot, th. 44-45.

746. It is indeed objected that by these exceptions the indissolubility of marriage is destroyed; but undeservedly; for here there is question only of ratified marriage, and therefore the evils which follow from divorce on the part of the spouses and of offspring are not verified here; besides, the dissolution is made not by private authority, but by the Roman Pontiff after a long inquiry, if there is question of a particular case, and only for grave causes; but if there is question of the case of solemn profession, the few inconveniences which perhaps follow from this are compensated by the more excellent good of religious life, nor otherwise is it to be feared that there will be many who renounce pleasures in order to embrace the austerities of religion. Therefore by these few exceptions the indissolubility of marriage is not endangered.²

² Pisani, L'Eglise et le divorce, in the periodical Le Correspondant, t. 217, October 10, 1904, pp. 20-46.

747. Since in many regions civil law permits divorce with the faculty of flying to new nuptials, it remains to speak of the manner of acting with respect to a law of this kind.

(A) The law itself, when it intends to dissolve the natural matrimonial bond, is intrinsically evil: (a) because it involves a twofold dogmatic error, both against the exclusive competence of the Church over the matrimonial bond, and against the indissolubility of ratified and consummated marriage; (b) and it introduces evil consequences for individuals, families, and society by favoring divorces,³ as is clear from what has been said, n. 723. Therefore those who cooperate in establishing a law of this kind sin gravely.

³ According to Mulhall, Dictionary of Statistics, p. 217, this is the proportion between marriages and divorces in various regions, through the years 1877-1886: for 10,000 marriages there were counted in Switzerland 468 divorces; in Denmark, 406; in the Federated States of America, 344; in Germany, 152; in France, 127; in Scotland, 29; in England, 19. Now, the laws of these regions being inspected, it is easily clear that divorces are more numerous to the degree that divorce laws are looser both as to the causes on account of which it is granted, and as to the manner of proceeding.

748. (B) But it is further asked whether it is lawful to cooperate in the execution of the law, namely whether a judge can pronounce a sentence of divorce without sin, whether the spouses may petition for it, and whether a procurator and advocate may patronize it.¹ That we may separate certain things from uncertain, these things are granted by all:

¹ Before the month of April 1886, the question was being treated also in France with regard to the syndic (maire), because the judge did not properly pronounce a sentence of divorce, but only declared that there was place for divorce, and afterwards the syndic pronounced the divorce; but now from the year 1886, the judge himself pronounces the sentence, and the syndic only orders the same to be transcribed by the actuary (greffier) in the acts of civil status; now to transcribe a sentence, even one intrinsically unjust, is very remote cooperation, which is permitted for a reasonable cause. Cf. Gasparri, n. 1234.

(a) A civil judge can accept a matrimonial case and recall it for examination, provided that he pronounces sentence against divorce, and otherwise there are most grave reasons for this manner of acting, for example lest he be held to yield his office.

For the Holy Office declared this, June 25, 1885: "The most grave circumstances of things, times, and places being attended to, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France, without being held to yield their office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as belonging only to ecclesiastical judges, and provided that they are so disposed in mind both concerning the value and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or incite to one, repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each one approach his Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through his mediation to the Apostolic Penitentiary. - The Most Holy Father ratified this decree."²

² In Gasparri, n. 1163; Ballerini P., n. 825; in the same place another similar decree of the Holy Office, December 19, 1860, to the Bishop of Southwark in England, is to be read, concerning causes of semi-full divorce, or of separation as to bed and habitation.

749. (b) Spouses who contracted invalidly, or whose marriage was dissolved by the authority of the Supreme Pontiff, can licitly have recourse to the civil tribunal so that they may obtain divorce (although generally it is expedient that they, after a dispensation has been obtained, if it can be granted, renew consent); for then what is sought is not the dissolution of the matrimonial bond, which does not exist, but only the relaxation of the civil effects which are attached to the contract which the State holds as valid.

This is clear from the response of the Holy Office to the Bishop of New Orleans,¹ September 9, 1824, where it is declared that in this case the contracting parties are to be induced so that, the canonical defect having been healed, as often as possible they enter a valid marriage; but if each or either one wishes to pass to new vows, liberty of having recourse to the civil tribunal is not to be denied, so that the civil faculty of entering other nuptials may be restored to him or her: "This would not be to approve the custom of civil repudiation, provided that the petitioner is rightly instructed that this is not done for this purpose, that the matrimonial bond be dissolved, since he or she is now detained by no bond, but only that he or she may free himself or herself and the parish priest from legal penalties and civil vexations... But the missionaries ought not to involve themselves in these things to be done before the Government. Let the one who asks to marry conduct his or her own business." In which case the judge, procurator, and advocate concurring in this judgment act licitly.

¹ In Kenrick, n. 111.

750. (c) Moreover it is certain that those spouses who are united by a valid marriage sin gravely when they petition for civil divorce with the intention of flying to new nuptials: for these wish to violate the divine law of indissolubility and to perpetrate adultery.

751. 2° Disputed question. But if one prescinds from the intention of entering a new marriage, and nothing is sought except the dissolution of the civil marriage and of the obligations annexed to it, it is greatly controverted among theologians whether the spouses can seek it, and whether the judge can pronounce the sentence of divorce.

We shall first treat this latter question, reporting the arguments of each opinion.

(A) The former opinion, which Bucceroni, Baudier, Rosset, Aertnys (loc. cit.), and others defend, holds that the sentence of divorce pronounced by a judge is intrinsically evil, and therefore can never be permitted. It is proved:²

² We take these arguments as to their substance from the work of Bucceroni, loc. cit.

(a) By reason. 1) If there is any law which contains something against natural and divine law, surely it is the law of divorce as to the very bond of marriage. But "if the writing of a law contains something against natural right, it is unjust, nor does it have the force of obliging... and therefore one must not judge according to it";³ otherwise one would judge according to injustice and against natural and divine law, which certainly is intrinsically illicit. Nor indeed is it less intrinsically illicit in this matter of marriage than in any other matter of temporal good and property to pronounce a sentence against natural and divine law.

³ St. Thomas, 2. 2., q. 60, a. 5, ad 1.

2. The law of divorce itself is intrinsically illicit and unjust. Therefore still more intrinsically illicit and unjust is the sentence of divorce. Surely the law is of itself as it were speculative-practical. Insofar as it is considered speculatively, the enunciation of an illicit and unjust law is not illicit, but false and absurd; but insofar as practically, then indeed it is illicit and evil. Now it is the sentence of the judge which in fact constitutes it practical, or practico-practical: "The sentence of a judge is as it were a certain particular law in some particular fact."¹ - Nor let it be said that the judge does nothing other than declare the law in a particular case, and that otherwise it is not intrinsically evil to declare that which an unjust law contains. This reason has no force at all; for the judge declares the law authentically and authoritatively, defining or determining what is just in a particular case; but it is intrinsically evil to declare authoritatively and juridically, and indeed altogether practically, that what is unjust in itself is just. - Nor let it be said that the cooperation of the judge is only material, and therefore must be permitted for a grave reason. For this cooperation is truly formal, because, as far as it goes, it wholly tends to the granting of the faculty, on the part of the law, of flying to other nuptials, which is evil in itself; it is cooperation efficacious by its own nature, because the aforesaid faculty of marrying in the particular case is the effect only of the sentence of the judge.

¹ St. Thomas, 2. 2., q. 67, a. 1.

Nor does it help to assert that the sentence of divorce touches only the civil contract and the civil effects connected with it, but not the sacramental contract. For the mind of the Legislators is to touch the bond itself and to dissolve the marriage, with the power civilly made of flying to other nuptials: which is intrinsically evil. Now, if the law of divorce is intrinsically evil, the sentence of divorce is also intrinsically illicit, since the judge authoritatively interprets the law by applying it to the particular case.

752. (b) By the authority of the Roman Congregations. For when a doubt arose concerning the interpretation of the decree of June 25, 1885 (above, n. 748), it was asked of the Holy Office: ") Whether the interpretation diffused through France and even given in print is right, according to which a judge satisfies the aforesaid condition who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that in mind he intends to break only the civil effects and only the civil contract, and that the terms of the pronounced sentence regard these alone? In other terms, whether a sentence so pronounced can be said not to be repugnant to divine or ecclesiastical law?

2. After the judge has pronounced that there is place for divorce, whether the Syndic (le maire in French), himself also intending only the civil effects and only the civil contract, as is set forth above, can pronounce divorce, although the marriage is valid before the Church?

3. Once divorce has been pronounced, whether the same Syndic can civilly join with another a spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living?"

Now on May 27, 1886, the Holy Office responded: "To the first, second, and third doubt, Negatively."¹

¹ In Acta S. Sedis, XXII, pp. 635-636; Gasparri, n. 1242.

Moreover this doubt was proposed to the Sacred Penitentiary: "A woman, separated from her husband as to bed by force of a sentence, would wish to undertake a certain public office (un bureau de tabac) for sustaining life; but the Government does not permit this unless she seeks divorce. She herself would wish to seek it, but, in her intention, always with the bond preserved." - The Sacred Penitentiary, January 5, 1887, replied:² "Nothing else is to be counseled to the penitent woman in the case except that she abstain under grave obligation from seeking divorce."

² In Gasparri, n. 1244.

In the same way the Sacred Penitentiary responded, January 14, 1891, in relation to a woman who wished to obtain civil divorce so that in pecuniary matters she might avoid the greatest damages;³ and on June 3, 1891, in relation to another wife who, already separated from her husband, intended to seek divorce so that, the civil effects of marriage having been removed, she might undertake the tutelage of her niece and thus free her from most grave dangers.⁴

³ In Ami du Clerge, XIV, 1892, p. 359.

⁴ In Ami du Clerge, XIV, 1892, p. 350.

Now from all these decisions it is deservedly inferred that a sentence of divorce, even by prescinding from new nuptials to be entered, is intrinsically evil, since it is not permitted to seek or pronounce it when there is no intention of marrying again.

753. (B) The latter opinion, which Kenrick, Ballerini, Palmieri, Lehmkuhl, Konings, Sabetti, Allegre, Genicot, De Becker (loc. cit.), and others follow, thinks that civil divorce can be sought and pronounced, provided that the spouses and judge declare that they regard only the civil effects and only the civil contract, and otherwise a grave cause is present to compensate the damages that will arise therefrom. They prove this:

(a) By reason. That one may rightly judge concerning the legitimacy of civil divorce, it must be kept in mind that it is nothing other than the dissolution of civil marriage, not of religious marriage. Indeed civil law can do nothing about the sacrament of marriage and therefore nothing about the matrimonial bond between Christians, but only about certain civil effects flowing from the contract; therefore civil marriage, where it exists, begets only a certain legal bond as to these civil effects; and therefore civil divorce destroys only the civil effects created by the law, so that, after the sentence, the matter stands in the same way as if no civil marriage had been contracted. But the dissolution of merely civil effects is an act indifferent in itself, not intrinsically evil.

But from the other side, since from civil divorce certain evils follow from the fact that the religious marriage, which subsists, lacks the protection of civil law, a grave reason is required that such a divorce be sought or pronounced, for example lest the judge be compelled to abandon his office, or lest the innocent spouse leave offspring to be educated by an impious spouse.

754. From this the arguments proposed by the former opinion can be solved. Indeed the law of civil divorce is not intrinsically evil of itself, because of itself it does not touch the matrimonial bond, but only dissolves those civil effects which it had created; therefore the judge, when he pronounces a sentence of divorce, declares only that the matrimonial contract no longer enjoys the protection of the law; and this surely is not intrinsically evil. - In reality the law of civil divorce is not in itself worse than the law itself of civil marriage, since divorce is only the civil dissolution of marriage. But the Church permits, indeed in certain circumstances counsels, the act of civil marriage; therefore the law of divorce is not in itself intrinsically evil.

It is indeed objected that the law is evil from the intention of the legislator, who also wishes to touch the matrimonial bond; - but the intention of the legislator, even if it were such, does not fall under the law; and if the judge altogether prescinds from that intention and regards only the civil effects and the civil contract, he does not cooperate in the sin of the legislator.

It is likewise objected that the worst effects follow from civil divorce, especially adulterous unions. - But these effects do not follow per se from the sentence of divorce itself, but only per accidens, since they must be attributed to the malice itself of the spouses; for when the judge pronounces civil divorce, he does not declare that it is lawful for the spouses to enter new nuptials, but only that they are not punished by civil law as adulterous.

755. (b) By authority; for the Roman Congregations, although they have given no speculative solution of this difficulty, have permitted judges in certain circumstances to pronounce a sentence of divorce.

1. First, the response of May 27, 1886 (above, n. 752), is not universal, nor does it settle the question; for the Apostolic Nuncio of Belgium, September 14, 1886, declared to the Government: "The Eminent Cardinal Secretary of State signified to me, by order of His Holiness, that the Congregation of the Holy Office declared that the decree of the day May 27 does not regard Belgium, and therefore nothing has been changed in this region as to those things which pertain to the matter of divorce."¹ Now in Belgium there is the same law as to divorce as in France, and Catholic judges pronounce sentences according to the law, without their manner of acting being reproved by the Holy See.

¹ In Ballerini P., n. 528; cf. Gasparri, n. 1243.

2. In France, Bishop N. set forth that a Catholic magistrate had been named president of the civil tribunal, but was prepared to yield his office if he could not in conscience pronounce a sentence of civil divorce, because in practice it is not always possible either to deter the plaintiff party from the petition, or to reject the petition against the clear disposition of the law; and, after premising two doctrinal questions concerning divorce, he asked: "Whether he can accept the burden and dignity of president of the civil tribunal, since he has clearly perceived that from this he will be constituted in the stricter necessity of more often pronouncing a sentence of divorce." - The Holy Office, July 26, 1887, replied: "The judge of whom there is question is to be strongly encouraged by Your Excellency to persevere in the office, standing by the restrictions already given by the Holy See, and with the cautions applied which are advised by the virtue of prudence."

3. Likewise the Bishop of Lucon had asked whether the syndic could pronounce civil divorce in a particular case in which otherwise he would be stripped of his magistracy, provided that 1° "he openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as belonging only to ecclesiastical judges; 2° in the very sentence, and speaking as a magistrate, he publicly declare that he wishes to break only the civil effects and only the civil contract, while otherwise the bond of marriage remains altogether firm before God and conscience." The Sacred Penitentiary, September 23, responded: "that the same (Bishop) in this particular case, if, after all its circumstances have been inspected, he shall have judged it expedient in the Lord, can tolerate that the syndic petitioner proceed to the act concerning which in the petition, with the declarations proposed by him, yet so that in place of the words that he wishes to break only the civil contract, he put: that he can regard only the civil contract."¹

¹ In Gasparri, n. 1246. - The formula to wish to break the civil contract did not please the Sacred Congregation, perhaps lest dissolution of the bond itself seem to be signified, as Ballerini P. notes, n. 825.

Now if in certain circumstances the sentence of civil divorce is permitted, this cannot be called intrinsically evil; for what is intrinsically evil is never permitted. - Nor let it be said that the Congregation uses the word can tolerate, so that from this it may be inferred that the matter is illicit in itself; for, as Palmieri rightly says,² "the faithful were asking for a decision, so that they might consult their conscience before God, and the Sacred Congregation intended to consult it. Therefore the tolerance which the Sacred Congregation counsels to Bishops in certain circumstances excludes the malice of the act."

² Ballerini P., n. 531.

756. 3° Practical conclusions. It is not ours to compose the dispute which the Roman Congregations did not wish to decide; but from the arguments and decisions adduced above, certain conclusions can be inferred.

(A) Preliminary notes. (a) Where the law of divorce has flourished for a long time, good faith much more easily exists in those who concur in the sentence of divorce; and otherwise the law is much more difficult to resist than where it has recently been promulgated. Hence the responses of the Congregations were stricter for France than for Belgium, because in this region the law of divorce is more ancient.

(b) In a particular case, attention must be paid to the various circumstances and to the various inconveniences which are foreseen as following from the granting or denial of divorce: for cooperation is more easily permitted or tolerated when motives of spiritual and public good require it than where only motives of temporal and private order are present. Hence also for France there were diverse responses for diverse circumstances, and the Sacred Penitentiary more than once said that "it had in mind to provide for the particular case according to its circumstances and exigencies."¹

¹ Thus, for example, June 4, 1890, in Gasparri, n. 1247.

757. (B) On the spouses. (a) Where the civil law does not admit separation as to bed and habitation, but only divorce (as in many American States), the spouse who has the right to separation can, with the consent of ecclesiastical authority, seek divorce, signifying that he or she understands semi-full divorce, provided that a grave reason is present to compensate the evils that will arise therefrom. - Perhaps the same can be said when simple separation, as understood by the law, would not suffice for the intended effect, for example when full divorce is necessary so that provision may safely be made for the Catholic education of the offspring,² or for excluding adulterine children from the inheritance which is proper to legitimate children.³

² Cf. Conferences ecclesiastiques de Paris, 1895, p. 119.

³ This can be inferred from the response of the Sacred Penitentiary, July 30, 1892; since to the question whether a husband can seek divorce from an adulterous wife when no other means is available for obtaining repudiation of paternity concerning adulterine children and their exclusion from the part of legitimate offspring, the response was: let the petitioner consult approved authors.

(b) But where separation flourishes together with divorce, and suffices for obtaining the intended effect, it is not lawful for the spouses to seek absolute divorce, since a sufficient cause for doing this is lacking.⁴

⁴ The Third Council of Baltimore, n. 224, declares that "those are guilty of most grave fault who ask that marriage be dissolved by the civil magistrate," and establishes the penalty of excommunication reserved to the Ordinary, "to be incurred by the fact itself by those who, after they have obtained civil divorce, have dared to attempt marriage."

758. (C) The advocate and procurator, since they represent the spouses themselves, can patronize the cause of divorce as often as it is lawful for the spouses to seek divorce. Therefore when the client seeks dissolution of the prior bond for this reason, that he or she intends to enter new nuptials, they cannot furnish their work for the sake of capturing profit.

759. (D) On judges. (a) They are held to apply every means so that they may be able to abstain from pronouncing a sentence of divorce, for example by persuading the parties to be reconciled or to seek separation only; or by abstaining from pronouncing any sentence, for example by remitting the case to another day and transferring it to another judge.

(b) But if they cannot abstain from pronouncing a sentence of divorce without losing their office, it can be tolerated that they pronounce the sentence, provided that they declare that they regard only the civil effects. For it is not certainly established that this is intrinsically evil, and otherwise a most grave reason of public order is present, since otherwise Catholics could not act the parts of judge, with great harm to the Republic.

(c) The same must be said of the syndic or other magistrates who, after the sentence of the judge, must proclaim divorce; indeed a lesser reason seems to suffice, since their cooperation is less.

760. But if spouses, after obtaining a sentence of civil divorce, attempt to enter other nuptials while the prior bond remains, it is commonly held that it is illicit for magistrates to sanction this adulterous union by the authority of civil law: for thus the rights of legitimate marriage are publicly attributed to adultery. - Some nevertheless say that the assistance of the syndic in this case is not intrinsically evil; for he is present at this marriage only as an official witness, and therefore his cooperation is not very proximate; indeed he cannot furnish this cooperation without a most grave reason, because by the law of charity he is prohibited from concurring in the evil of his neighbor; but if a most grave reason presses, for example danger of losing his office, in order to avoid scandal, let him cautiously warn the parties that this is a merely civil ceremony, which has no force at all before the Church.¹

¹ Thus Santi (in libr. IV, tit. 3, nn. 55-58), who for many years was canonist of the Sacred Penitentiary; Gasparri, n. 1231; Genicot, n. 562.

761. (E) On the consequences of divorce with regard to inheritance.² (a) When legitimate children have been born from a prior valid marriage, and adulterine ones from a later invalid marriage, practically the illegitimate children can accept the part of the inheritance devolved to them, whether by testament or by the civil law of succession. For parents do not sin against justice by leaving some part of their goods to illegitimate offspring, since they are by no means held to hand over the whole inheritance to legitimate offspring; therefore a fortiori the illegitimate do not sin against justice by accepting the portion left to them. The same must be said if the parents die without a testament; for since they knew that a part of the goods would pass to the adulterine children, and did not prevent this by a contrary disposition, they consented to it at least implicitly.

² Cf. Lehmkuhl, Appendix to vol. II, pp. 804-805; Genicot, n. 562.

(b) Likewise, if the parents leave only adulterine children, these can with safe conscience accept the inheritance, nor are they held to yield it to other blood relatives: for here the same reason holds.

(c) But if the parents have disposed of their goods by testament, can the adulterine children impugn it as invalid, whether because the legal portion was not left to them, or on account of another cause? - If the defect is such that it renders the last will of the parents doubtful, they can indeed impugn the testament and follow the sentence of the judge. But if the will of the parents is certainly established, it is not lawful to impugn the testament; for they are deservedly judged to have wished to repair their fault by leaving their goods to legitimate heirs; and otherwise the unjust civil law of divorce can confer no right on adulterine children; hence these would sin not only against piety, but also against justice by impugning the testament in this case. - Yet where divorce has already flourished for a long time, adulterine children can easily be in good faith, and sometimes it is expedient not to instruct them, lest graver evils arise therefrom.

762. Having set forth these things concerning divorce as to the bond, it remains to speak of separation as to bed and habitation. That the matter may be better understood, we shall declare four things: 1° the obligation of conjugal cohabitation; 2° the legitimacy of separation for a grave cause; 3° the chief causes of separation; 4° the manner to be observed in separation.

¹ St. Thomas, Supplement, q. 62; Sanchez, lib. X, disp. 3-18; St. Alphonsus, nn. 960-977; Carriere, nn. 330-357; Rosset, nn. 3622-3693 and nn. 3850-4062; Ballerini P., nn. 489-518; Wernz, nn. 707-714.

763. Principle: Regularly spouses are held to dwell in the same house, and to use the same table and the same bed. It is certain.

(A) For this is deduced from Scripture,¹ as understood by the Fathers: "A man shall leave his father and his mother, and shall cleave to his wife, and they shall be two in one flesh"; for the word shall cleave signifies an intimate and constant union, and from the context it is gathered that this is closer than that which exists between parents and children; but the words "and they shall be two in one flesh" rather clearly designate communion of bed.

¹ Gen., II, 24.

(B) The same is clear from the very ends of marriage: for this is required by (a) the conjugal debt, which cannot easily be rendered without regular cohabitation of the spouses; (b) the good education of offspring, which demands the cooperation of each spouse; for for good education there is desired both the tender love and provident care of the mother, and the severe authority and consummate prudence of the father; (c) the fellowship of common life: for they ought mutually to help and console each other; for the man is stronger and more prudent than the woman, who therefore needs the counsels and direction of the man; conversely, the woman is more suited to domestic matters, and therefore the man needs her work;² but they cannot furnish this unless they live together.

² St. Thomas, Comment. in Ethic., lib. VIII, c. 12.

764. The principle is explained: (a) Since man and woman are one flesh, they must not be separated for a longer time without grave cause. But since the man is the head of the woman, regularly the wife is held to follow the husband wherever he goes, even if he is sent into exile or goes away into a distant region, unless there is a grave excusing reason. But on the other side, a man departing for a long time is held to bring his wife with him, unless a grave reason stands in the way. But if the man is going to depart for a short time, he is not held to take his wife with him.

It was said regularly, because the wife is not held to follow the husband if this cannot be done without grave spiritual or temporal harm, for example if she would be exposed to proximate danger of sin, death, or grave detriment. Hence there does not fall upon her the obligation of following a man wandering everywhere, unless before the nuptials she had known his wandering life.

(b) Regularly also the spouses ought to share the same table, so that they may be able to enjoy the consolation of mutual conversation. The man is held to support his wife, unless it has been otherwise agreed, even if she does not have a dowry; but the wife is to attend to domestic matters, according to her condition.

(c) Generally also communion of bed ought to be present: but if the spouses, on account of a reasonable cause, have a distinct room and bed, free access to the other's room should be open to each.

765. Corollary. That spouses may cohabit peacefully and happily, they must cultivate certain virtues, especially chaste love, constant fidelity, mutual assistance; besides, the man must furnish protection to the wife, and the woman obedience to the man.

Leo XIII excellently declares this thus, in the Encyclical Arcanum: "Namely, they themselves must always be so disposed in soul that they understand that each owes to the other the greatest love, constant fidelity, and careful and assiduous protection. The man is the prince of the family and the head of the woman; yet she, because she is flesh of his flesh and bone of his bones, is to be subject and obedient to the man, not in the manner of a slave, but of a companion; so that, namely, neither honor nor dignity be absent from the obedience furnished. But in him who presides, and in her who obeys, since each bears the image, the one of Christ, the other of the Church, let divine charity be perpetually the moderator of duty."

(a) They must cultivate chaste love: "Men, love your wives, as Christ also loved the Church, and delivered Himself up for her... So also men ought to love their wives as their own bodies. He who loves his wife loves himself."¹

¹ Ephes., V, 25, 28.

Hence that love must be chaste: for if it is lustful, it will soon become adulterous; pleasure is naturally inconstant and is carried toward various objects, so that those who serve lust, after some time, foster other loves; - patient, by cheerfully bearing mutual infirmities and forgiving each other mutually; otherwise discord arises: the man, abusing his power, treats the wife badly not as a companion, but as a slave; the wife despises the husband and refuses to be subject to him; - full of devotion, insofar as each seeks not exclusively his or her own things, but the man those things which please the wife, and the wife those things which please the man; likewise insofar as each is prepared to sacrifice himself or herself for the other, just as Christ delivered Himself for the Church.

766. (b) They are held to preserve mutual fidelity for each other, not only by avoiding adultery, but also whatever can lead to so great a crime and deservedly excite the jealousy of the other spouse: "The woman has not power over her own body, but the man; and likewise the man has not power over his own body, but the woman."¹ In reality nothing destroys domestic happiness more effectively than the very suspicion of conjugal infidelity.

¹ I Cor., VII, 4.

Moreover, the spouse who, without legitimate cause, nourishes sinister suspicions as to the fidelity of the other party sins gravely: for this is against charity and justice, and often becomes the cause of quarrels and of other evils. Hence let the confessor seriously warn him or her to lay aside so unjust a suspicion, as though it were a suggestion of the devil himself.

767. (c) They must furnish mutual assistance to each other; for God created the woman so that she might be a help to the man: "It is not good for man to be alone; let us make him a help like himself."² And surely the woman herself needs the help of the man.

² Gen., II, 18.

St. Thomas explains this thus:³ "For it is immediately apparent that the human works which are necessary for life are distinct between male and female; so that certain things are fitting to the man, I mean those things which are to be done outside, and certain things to the wife, such as spinning and other things which are to be done at home. Thus therefore they suffice for each other, while each reduces his or her proper works to the common." Therefore let them divide among themselves the works of domestic life; and in all things let them strive to please not so much themselves as the other party.

³ Comment. in lib. Ethic., lib. VIII, c. 12, p. 608, t. XXV, ed. Vives.

768. (d) The man is held to furnish protection to the wife, and the wife obedience to the man.⁴ This flows from these words of St. Paul:⁵ "Let women be subject to their husbands, as to the Lord, because the man is the head of the woman, as Christ is the head of the Church: He is the savior of His body."

⁴ The Gallican civil Code thus sets forth these various duties: "The spouses owe each other fidelity, help, assistance" (a. 212). "The husband owes protection to his wife, the wife obedience to her husband" (a. 213). Cf. Baudry-Lacantinerie, nn. 714-718.

⁵ Ephes., V, 22-23. - It is lawful to advocate the rights and higher education of women, provided nevertheless that those words of St. Paul be kept in a pious mind.

Indeed spouses form a certain society, of which the man is the head or president: therefore there falls upon him the obligation of a president, namely of protecting the whole body; therefore he will furnish himself as a strenuous protector not only in dangers of the body, but also in dangers of the soul, not only in temporal matters, but also in spiritual matters. But the wife must obey the man in all things which are legitimately prescribed by him, "not in the manner of a slave, but of a companion, so that neither honor nor dignity be absent from the obedience furnished." The husband indeed cannot prohibit the wife from fulfilling the precepts of God and of the Church, for example from being present at Mass, approaching the tribunal of Penance and the sacred table; but she herself must satisfy religious works in such a way that at the same time she fulfills the duties of her state. - If these things are rightly attended to, Christian spouses will live piously and happily.¹

¹ On the duties of married life see St. Francis de Sales, Introd. à la vie dévote, 3rd Part, ch. 38-39; A. de Margerie, De la Famille, Paris, 1869, vol. I, pp. 1-53, 151-225; Devas, Studies of family life, London, 1886, part II; P. Janet, La Famille, Paris, 1894, pp. 23-106; Landriot, La Femme forte, 1868; La Femme pieuse, 1874; Baudrillart, La Famille et l'Education; Meignan, Instructions et conseils aux familles; Turgeon, Le Féminisme français, Paris, 1902, vol. II, pp. 80-113.

769. Principle: Separation as to bed and habitation, while the bond of marriage remains, can be permitted for legitimate causes.

It is certain against many Protestants, who assert that a full divorce can be permitted in many cases, but not a simple separation, as if this opened the way to more and graver evils than divorce itself.

(A) Trent condemned the Lutheran error, by defining:² "If anyone shall say that the Church errs when, on account of many causes, it decrees that separation between spouses can take place, as to bed or as to cohabitation, for a determinate or indeterminate time, let him be anathema."

² Sess. XXIV, can. 8.

(B) Scripture declares that for God's sake the closest bonds can be broken: "And everyone who has left house, or brothers, or sisters, or father, or mother, or wife, or children, or lands, for My name's sake, shall receive a hundredfold, and shall possess life everlasting."³ Hence Christ Himself, while, except in the case of adultery, He prohibits divorce as to the bond, allows separation as to cohabitation and bed, when He says: "Whoever shall put away his wife, except for the cause of fornication, makes her commit adultery."⁴ And in fact St. Paul grants the converted spouse that he or she may separate from the other party who wishes to depart: "But if the unbeliever depart, let him depart."

³ Matt., XIX, 29.

⁴ Matt., V, 32.

(C) Reason shows that this separation is sometimes lawful and useful. For the cohabitation of spouses does not pertain to the essence of marriage, but only to its integrity, and therefore it can be suspended or taken away, if the goods which arise from it are far surpassed by the evils which result from it. But when separation is granted only for most grave causes, it often brings more goods than disadvantages; for the Church, by cares and remedies accommodated to the condition of the spouses, strives to soften the disadvantages of separation; moreover, she never ceases to labor toward reconciling peace; and in reality experience shows that not a few of those who have been thus separated, or even have obtained full divorce, after some time wish to live together again: for when they are placed under the necessity either of observing continence or of returning to the other party, they are more cautious in seeking separation and more ready for reconciliation. - Nor should it be said that in this way a way is opened to adulteries: for while separation endures, spouses can obtain from God, both by prayer and by frequenting the sacraments, the special graces by which they need to preserve continence.

There are especially four, of which some suffice for perpetual separation, others for temporary separation, as will be clear from what is to be said.

770. (A) The adultery of either spouse, as is clear from the words of Christ related above (n. 85), and from the ecclesiastical canons.¹ Now under the name of adultery there more probably comes any illicit lying together with another, as sodomy and bestiality: for by these crimes, just as by adultery itself, conjugal fidelity is broken; moreover, fidelity is broken without penalty toward the same one who breaks fidelity.

¹ Decretal., lib. IV, tit. XIX, de Divort., cc. 4, 5, 8.

Adultery is of itself a cause of perpetual separation; hence the innocent spouse can depart from the adulterer forever; and, if he or she wishes, enter religion or vow chastity in the world. - Yet this is not immediately to be advised, since charity sometimes counsels that pardon be given. (Codex, c. 1130.)

In order that this crime may be a just cause of separation, certain conditions are required: (a) adultery must be formal and culpable:² otherwise there is not present a voluntary violation of conjugal fidelity. Therefore good faith excuses, for example if a man, thinking his wife to be dead, contracts and consummates another marriage; error, for example if a spouse thought the person with whom he or she had intercourse to be his or her own other party; force, if a woman was oppressed against her will. But it is doubted whether grave fear excuses: wherefore the matter must be left to the sentence of judges.

² Fornication committed before the nuptials, and afterwards detected, is not a sufficient cause of separation, unless it inflicts injury on the husband, as would happen if the woman were pregnant by another. Thus Kenrick, n. 114.

(b) The adultery must be consummated; for this embraces, kisses, touches, nor even intercourse only attempted, do not suffice, but there is required an act of itself apt for the generation of offspring.

(c) It must be morally certain, for in doubt no one is to be deprived of his or her right; therefore probable suspicion does not suffice, but there are required at least those presumptions which induce moral certitude, for example the confession of the accused, or if a man alone with a woman alone is found in the same bed.

(d) It must not be mutual; for equal offenses are taken away by mutual compensation; nor does it matter who first or more often fornicated.

(e) It must not have been permitted nor pardoned; for by permission or pardon the injustice is taken away. Therefore there is no place for separation if the other spouse ordered the adultery or consented to it expressly or tacitly, not preventing it when he or she easily could; or pardoned it either explicitly, or tacitly, for example by the use of marriage after the crime was known, or if he or she did not expel or abandon the adulterous spouse within six months or did not legitimately accuse him or her. (Codex, c. 1129.)

771. In the case of adultery clothed with these conditions, the innocent spouse is not held of himself or herself to dismiss the guilty one, since separation is granted in favor of the innocent one, not for his or her punishment; sometimes, however, accidentally a man can be held to dismiss an adulterous wife, by reason of fraternal correction or of avoiding scandal; but rarely, because there are other means for obtaining this, and besides grave disadvantages can be feared from separation. - Moreover, the innocent one can also call the guilty one back to himself or herself, certainly when the guilty one departed by his or her own authority, and at least more probably when separation was made judicially, because it was granted in the innocent one's favor; furthermore, anyone can renounce a favor. - But the dismissed spouse cannot embrace religion or receive sacred orders, unless with the consent of the innocent one, either express or tacit, such as is judged to be given when the innocent one embraces a state incompatible with conjugal life.

But if the innocent party commits adultery after a separation made privately, he or she is held to call the other back, because compensation of injuries takes place; if after a juridical separation, he or she is not indeed held to furnish this, because by the sentence of the judge the adulterer has lost his or her rights; but this is altogether to be advised.

772. (B) Recession from the true religion, which, according to can. 1131, can be manifested by a threefold act: "if a spouse has given his or her name to a non-Catholic sect; if he or she has educated the offspring in a non-Catholic manner; if he or she leads a criminal and ignominious life."

But this separation ought to be temporary, that is, to cease as soon as the dismissed spouse has returned to the true faith: this is certain, if the separation was made privately; and more probable, if judicially, unless nevertheless in this last case the innocent one wishes to enter religion.

773. (C) Grave damage, whether of soul or of body, because the law of cohabitation does not oblige with so great a disadvantage (c. 1131).

(a) There is present a danger of the soul, if one of the spouses solicits the other to sin, for example to theft, adultery, sodomy;

(b) a danger of the body, if one prepares snares against the life of the other; or suffers from a contagious disease with danger of infecting the other, if there is no other way by which that disadvantage can be met; but generally a disease of this kind prohibits sleeping together, but not cohabitation: in which case the one who is healthy must minister to the sick one; likewise if the man exercises cruelties against the wife, and indeed grave ones, with regard had to the persons, character, and condition; or has denied necessary foods or medicines.

If the danger is such that it does not admit of delay, the innocent one can depart by his or her own authority, but for a time; for when the danger has been removed, he or she can be compelled judicially to return. But if time is present, regularly recourse should be had to the ecclesiastical judge, who will prescribe temporary or perpetual separation according to the circumstances.

774. (D) Mutual consent, since each person can freely renounce his or her own right, from an honorable end, for example in order to devote himself or herself to prayer or to lead a more perfect life. Yet this must be permitted cautiously, because of the danger of incontinence. Hence in practice: (a) if there is question only of separation as to bed, for a brief time, it can easily be granted;¹ if for a long time, or to be sanctioned by a perpetual vow, it should be permitted only after mature deliberation has been first had and after long experience, because of the inconstancy of the human heart.

¹ "Do not defraud one another, except perhaps by consent for a time, that you may devote yourselves to prayer: and return again to the same thing, lest Satan tempt you because of your incontinence" (I Cor., VII, 5).

(b) If there is question of separation not only as to bed, but also as to habitation, it is to be permitted with more difficulty, since it stands in the way of the secondary end of marriage, namely mutual help, and moreover can easily furnish scandal to others. Yet it is lawful, provided that a grave reason is present, that the danger of incontinence is absent, and that sufficiently provision is made for the education of the offspring.

(c) If there is question of entering religion, or of ascent to orders, there can scarcely be place for separation under the new discipline. Dispensations, however, can be granted by the supreme authority of the Church. See can. 132, § 3; can. 572, § 1, 3°; can. 987, 2°.

775. (A) From can. 1130, 1131 these things can be established:

Separation on account of adultery can be made by private authority, but it is required that the delict be certain and that it can be proved in the external forum; for there is question of separation in the external forum. If it is only certain, separation can be made only as to bed.

On account of other reasons, it must be made by the authority of the Ordinary; nevertheless it can also be made by one's own authority, if they are certainly established and there is danger in delay. - Yet it is expedient not always to urge the obligation of approaching the Ordinary, and to leave the spouses in good faith.

Of themselves unworthy of absolution are those who, without a canonical reason, have been separated by their own counsel on account of mutual aversion or some other reason of this kind; but if they are in good faith, and scandal is absent, and it is foreseen that an admonition will not be profitable, they can be left in good faith and absolved.

776. (B) Strictly speaking, recourse must be had to ecclesiastical judges alone in order to obtain separation: for this is a truly matrimonial cause, in which there is question of relaxing rights arising from the sacrament itself, and therefore it pertains to the ecclesiastical forum. Nevertheless, having regard to the very grave circumstances of things, it can be tolerated that in regions in which civil marriage exists, separation be sought from a civil tribunal: for otherwise before the law spouses remain obliged to cohabit. Yet this regularly cannot be done without consulting ecclesiastical authority.¹ But if spouses in good faith have been separated by civil authority, without recourse to the Bishop, they are not generally to be disturbed, since scarcely any fruit can be hoped for from an admonition.

¹ "We command all those who are joined in marriage that, without consulting ecclesiastical authority, they not approach civil tribunals to obtain separation from bed and table. But if anyone shall have attempted this, let him know that he incurs grave guilt and is to be punished according to the judgment of the Bishop." Thus the Third Plenary Council of Baltimore, n. 126. - Yet a judicial process is not required, but a license granted by the Bishop suffices, where custom so permits: thus Smith, Marriage Process, New York, 1893, n. 80.

777. (C) According to can. 1132, unless the Ordinary has decreed otherwise for the good of the children: (a) if one of the spouses is an infidel or heretic, by divine and canonical law the offspring must always be committed to the faithful one, so that they may be instructed in the true religion;² (b) if both are Catholic, the offspring to be educated must be handed over to the innocent one, but expenses are to be paid either totally or in part by the guilty one, especially if this one is the father. - Yet as to expenses, civil laws in various regions do not establish the same thing: and therefore they must be read and carried out, unless they are manifestly unjust.

² "Once separation has been instituted, the children are to be educated with the innocent spouse, and if the other spouse is non-Catholic, with the Catholic spouse, unless in either case the Ordinary, for the good of the children themselves, always saving their Catholic education, shall have decreed otherwise." (Codex, c. 1132).

778. (D) Since the separation of spouses is full of dangers, and, where civil divorce is in force, easily prepares the way for full divorce,³ priests should strive by suitable remedies and admonitions to avert it, and should prudently endeavor to reconcile separated spouses, unless greater evils are feared from cohabitation.

³ Thus in France separation as to bed and habitation, after three years, can be converted into a sentence of full divorce, if one of the spouses requests it (a. 310).

But the means of preventing separations and divorces are to instruct the faithful diligently concerning mutual duties and concerning the virtues to be cultivated by spouses (above, n. 765), and especially concerning the practice of the Christian religion, "which brings it about that vices, if there are any in the persons, that differences of morals and characters, that the weight of maternal cares, that the laborious solicitude of educating children, that the labors that accompany life, that adverse events, are borne not only moderately, but even willingly."⁴

⁴ Leo XIII, Encyclical Arcanum, near the end.