Article II: On Separation of Bed, Table, and Habitation

— Principle. The obligation of preserving common life can be excused by a just cause. But here there must be distinguished causes which permit either party, while every kind of friendship remains between the spouses, to withdraw for a time, and juridic causes of separation or divorce as to bed, table, and habitation. The former will be treated in the moral section (cf. t. IV, n. 79). In this place the Code, after it has inculcated in c. 1128 the principle concerning the excusable obligation, indicates these causes and legitimate modes of imperfect divorce in the following canons.

— I. Adultery gives to the other spouse the right of dissolving, even perpetually, the communion of life. Except, however: a) unless he or she consented to the crime: no injury is done to one consenting; b) or gave cause for the same, e.g., through unjust denials of the debt, through illegitimate absence which was long-lasting; c) or expressly or tacitly condoned it: tacit condonation is had if the innocent spouse, made more certain concerning the adultery, afterward freely conversed with the other spouse with marital affection. But condonation is presumed, unless the innocent party, within six months, expelled or deserted the adulterer or made a legitimate accusation (c. 1129, §2).

Adultery, that it may give right to separation, must be formal and freely, not coercively, admitted. But if it was certain and notorious, it permits the innocent party to depart by his or her own authority, although recourse to the Ordinary is always to be advised. Moreover, it gives the right of perpetual separation, so that never, from justice, must the innocent party receive the adulterous spouse. Wherefore, not even if after separation the innocent party himself or herself has stained himself or herself with grave sins, even adulteries, does the other thereby recover any right. Yet it is open to the innocent party to be reconciled with the adulterer, unless he or the other, with his consent, has taken on a state contrary to marriage, suppose that he or she has made religious profession. Charity will be able to counsel that reconciliation, indeed sometimes to command it, according to the general rules.

This right of the innocent party was promulgated by Christ the Lord himself, in the places where Protestants have read the faculty of perfect divorce (dissolving the bond): "But I say to you: that everyone who shall put away his wife, except for the cause of fornication, makes her commit adultery: and he who shall marry her who has been put away commits adultery" (St. Matt. 5:32); "Whoever shall put away his wife, except for fornication, and shall marry another, commits adultery: and he who shall marry her who has been put away commits adultery" (ibid. 19:9).

— Other causes of divorce as to bed and habitation are various guilt imputable to the other spouse: 1. passage of the spouse to a non-Catholic sect, i.e., heretical or schismatic; 2. non-Catholic education of the offspring; 3. criminal and ignominious life; 4. grave danger created for soul or body; 5. cruelties which render common life excessively difficult.

And these are examples, so that other cases of the same kind can be admitted.

Of itself the innocent spouse must use the authority of the Ordinary before separation. And the intervention of the Ordinary brings this advantage, that if the Ordinary has pronounced separation for a certain or uncertain time, the separated spouse is not held to restoring common life before the elapsed time or a new decree of the Ordinary. Generally it will be useful to send to the pastor those whom the confessor finds separated by private will.

For other causes, besides adultery, do not give a right of separation except as long as they themselves subsist (cf. c. 1131).

Once separation has been made, children are to be educated with the innocent or Catholic spouse, unless, with their Catholic education safe, the Ordinary judges that something else is more expedient (c. 1132).

But today the civil power itself is accustomed to pronounce concerning the lot of the children.

— Perfect divorce. I. Non-consummated marriage between baptized persons themselves or between a baptized and a non-baptized person is dissolved by the law itself, through solemn religious profession, and by dispensation of the Apostolic See from a just cause conceded to at least one party.

II. 1. A legitimate marriage which has been contracted between non-baptized persons is dissolved in favor of the faith, by the Pauline privilege: i.e., if the party who remains infidel departs, the other baptized party validly and licitly contracts new nuptials; when these have been contracted, the prior marriage is dissolved. But not only he who refuses to cohabit departs, but he also who refuses to cohabit peacefully and without contumely of the Creator, or proposes only cohabitation intolerable to the faithful party, whether on account of annoyances to be borne, or on account of an occasion of sin, or on account of offensive things which he would give to be looked upon: polygamy, idolatry.

2. Regular use of the privilege requires that, by the authority of the Ordinary of the converted spouse, and after this spouse's baptism, at least summarily and extrajudicially, the infidel be interpellated whether he or she wishes to be converted or at least to cohabit peacefully. Private interpellations, however, are valid.

A marriage contracted with another without prior interpellations is not valid, unless the Church dispenses or the departure of the infidel after the baptism of the other party is plainly established.

But the use of marriage after baptism does not harm the privilege.

There is not, however, place for the privilege if the faithful party after baptism gave to the non-baptized party a just cause of departing.

3. The Holy See can dispense so that interpellation is made concerning the will of conversion alone, or that the interpellations be omitted altogether. When dispensation has been made from interpellation, unless the marriage is celebrated within a year, either interpellations must be made, or a new dispensation must be sought.

4. By general disposition it is permitted that converted polygamists who do not remember which wife they first received contract true marriage with any; that they can remain with the wife who has been baptized or is baptized with them.

And from c. 1125, to Ordinaries of missions among gentiles and to pastors and confessors there a general faculty is given of dispensing from every interpellation "provided it is established extrajudicially that the absent spouse cannot legitimately be warned, or has not signified his or her will within the time fixed in the warning." Nuptials thus made can never be declared invalid on account of omitted interpellation or of the baptism, later (i.e., after the nuptials) detected, of the party who was thought infidel. From the third Formula of Propaganda Fide, a subdelegable faculty is given of dispensing concerning an interpellation which cannot be made without evident danger of grave harm to be inflicted either on the already converted spouse or on Christians.

But in doubts, let judgment always be in favor of the faith (Holy Office, April 19, 1899).

Imperfect divorce. - I. Adultery gives to the other spouse the right of dissolving, even by his or her own judgment, the communion of life perpetually. Except if the other spouse consented to the crime, or gave culpable cause for the same, or expressly or tacitly condoned it. Charity will be able to counsel reconciliation, indeed sometimes command it.

II. Because of other grave causes, such as cruelties, danger of soul or body, disgrace because of the ignominious life of the other, separation is permitted as long as the cause subsists, or the Ordinary, whose authority must regularly be used, has decreed it.