Part II. On Semi-Full Divorce

The following words of canon 1128 teach that semi-full divorce or separation from bed, board, and cohabitation is of itself illicit, but licit from a just cause: "Spouses must preserve the communion of conjugal life, unless a just cause excuses them." Among the just causes on account of which it is licit to institute or petition semi-full divorce, some confer the right of perpetual separation, others of themselves confer the right only of temporary separation. We will examine the individual causes of each species.

I. The causes of perpetual separation are adultery and the mutual consent of the spouses for conversion to a more perfect state.

1. Adultery furnishes to the innocent spouse the right of perpetual separation. This is clear from Sacred Scripture,¹ which, while excluding dissolution of the bond (n. 720), indicates perpetual separation. It is further clear from Tradition,² and from the fact that someone vainly demands that faith be kept with him by one to whom he refuses to keep the faith furnished by himself.³ Hence canon 1129, § 1: "Because of the adultery of a spouse, the other spouse, the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he consented to the crime, or gave cause for it, or expressly or tacitly condoned it, or also himself committed the same crime" (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960). Moreover, adultery must be: consummated, formal, morally certain, not approved, not compensated, not condoned. It is said:

a) Consummated through copula of itself apt for generation, not merely begun through kisses, touches, embraces, etc.; nor, since here carnal union with a third person is considered, does mere lying together or union of bodies, or onanistic copula, suffice.

b) Formal, not committed by oppression or in good faith (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960; Homo Apostolicus, tract 18, n. 95).

c) Morally certain. Certainty of this kind can also arise from indications, conjectures, and vehement presumptions (St. Alphonsus VI, 961; Homo Apostolicus, tract 18, n. 93).

d) Not approved, that is, it is required that the other did not consent to the adultery nor directly give cause for it; not, however, that he or she did not furnish an indirect cause for it, for instance by denying the debt, by treating the spouse badly (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 966).

e) Not compensated by adultery committed by the other party before the sentence of divorce was issued by the ecclesiastical judge. It does not matter that one committed adultery more often than the other, or that the crime of one is occult and that of the other public. But if, after adultery has been committed by both, one comes to his senses while the other continues in adultery, the one who is amended can with sufficient probability institute divorce (St. Alphonsus, loc. cit.).

f) Not condoned either expressly or tacitly. "Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely associated with the other spouse with marital affection; moreover it is presumed unless within six months he has expelled or left the adulterous spouse, or has made a legitimate accusation" (canon 1129, § 2).

Sodomy with a third person and bestiality are equated with adultery, because what is considered here is present, namely carnal union with a third person. Otherwise one must speak concerning sodomy perpetrated with the spouse (St. Thomas, Supplement, q. 62, a. 1, ad 4; St. Alphonsus VI, 962, question 2°).

Corollary I. The innocent spouse is not bound of himself to institute divorce; incidentally he can be bound either on account of hope of amending the guilty one, or on account of avoiding scandal arising from the fact that someone would seem to consent to the continued adulteries of the spouse. Practically, however, an obligation will scarcely be present, with the inconveniences also about to follow considered (St. Thomas, Supplement, q. 62, a. 2; St. Alphonsus VI, 963, 964).

Corollary II. The innocent party, whether he or she has departed by sentence of a judge or by his or her own authority, is never bound to receive the adulterer, however amended, or to return to him or her (canon 1130), unless the innocent party commits adultery before the sentence of divorce has been issued by the ecclesiastical judge. After this sentence has been issued, the obligation is sufficiently probably lacking according to that maxim, "What has once been well decided... ought not to be reconsidered by any repetition" (St. Alphonsus VI, 965; 967, doubt 2; Homo Apostolicus, tract 18, n. 96). Nevertheless it is always laudable to receive the penitent one back into favor.

Corollary III. The innocent spouse can admit or recall the adulterous party, unless with the innocent spouse's consent the latter has taken up a state contrary to marriage (canon 1130), namely sacred Orders or Religion. If, however, the adulterous wife prudently fears cruelties, she is not bound to return (St. Alphonsus VI, 976).

2. Mutual consent confers the right of perpetual separation in a twofold case:

a) If one or both parties emit perpetual religious profession, with the other party consenting; but in order that religious profession be valid, a dispensation of the Holy See is required (canon 542, 1°). Once religious profession has been emitted in this way, neither ever has the right of returning to the other or summoning the other.

b) If the husband receives sacred Orders, with the wife consenting; but in order that the reception be licit, a dispensation of the Holy See is required (canon 987, 2°). The reception of Order without the consent of the spouse is likewise illicit, indeed in such a way that the husband can be compelled to return and to abstain from all acts of Order.

In occurring cases, the Holy See can establish conditions for the other party who does not enter Religion, or for the wife whose husband receives sacred Orders; common law now prescribes nothing.

¹ Matthew 5:32; 19:9; Mark 10:11; Luke 16:18; 1 Corinthians 7:11-12.

² The Dogmatic theologians should be consulted.

³ Rule of Law 75 in VI.

II. Causes of temporary separation. 1. Causes of this kind are comprehended by canon 1131, § 1: If one spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger, whether of soul or of body, to the other; if by cruelties he renders common life too difficult: these and other things of this kind are for the other spouse so many legitimate causes of departing. It is said:

a) If he has given his name to a non-Catholic sect. Therefore it is required that he be formally joined to a sect, whether of infidels, or heretical, or schismatic, and that after the marriage has been entered.

b) If he has educated the offspring non-Catholically.

c) If he leads a criminal and ignominious life, as if he joins himself to a band of robbers.

d) If he causes grave danger, whether of soul or of body, to the other. Danger of soul, for example if he solicits to heresy, poisoning, etc. Add if the husband introduces others into the house with danger that they may tempt to adultery. Or if he wishes to exercise sodomy with the wife, even if she refused to consent (St. Alphonsus VI, 973). Danger of body, to which belongs, for example, a contagious disease of the spouse, unless, which today more easily has place, the danger can be removed in another way (St. Alphonsus VI, 973).

e) If by cruelties he renders common life too difficult, for example by treating the consort cruelly. Mere beating, however, unless it is grave and happens several times, is ordinarily not judged among common people to be a just cause for withdrawing. Besides, it suffices that a grave evil be prudently feared (St. Alphonsus VI, 970, 971, question 3°). To this can also be referred insanity from which danger is imminent to the spouse; likewise very troublesome cohabitation, namely on account of grave and frequent insults or quarrels, especially if they bring in a just fear of a greater evil. Here, however, as was likewise said concerning cruelty, the condition of the persons is considered (St. Alphonsus VI, 971, question 3°).

f) And other things of this kind, for example malicious desertion by the spouse.

2. All these causes of themselves furnish only the right of temporary separation. Wherefore canon 1131, § 2 says: In all these cases, when the cause of separation ceases, the custom of life must be restored; but if the separation was pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has been completed.

III. The authority by which separation is to be instituted. 1. Adultery, provided it is certain, confers the right of instituting separation by one's own authority (cf. canons 1129, § 1; 1130). Nevertheless, for the sake of avoiding scandal, ordinarily the authority of the ecclesiastical judge must be invoked, unless the adultery is notorious by law or by fact, although even then ordinarily it is expedient to seek the intervention of the ecclesiastical judge. And this is to be advised all the more because, when adultery is neither notorious nor legitimately proved, the judge can compel the spouses to cohabitation; but one must obey the judge, yet not render the debt to the adulterous spouse (St. Alphonsus VI, 968).

2. Mutual consent requires the intervention of Ecclesiastical Authority, as was said in n. 840.

3. Other causes require the authority of the local Ordinary, unless they are certainly established and there is danger in delay; in that case separation can be instituted by one's own authority (canon 1131, § 1).

Finally, separation from bed alone can take place either by mutual consent, according to these words of the Apostle: "Do not defraud one another, except perhaps by consent and for a time, that you may give yourselves to prayer,"¹ or, if a just cause exists, for example a contagious disease, by the authority of one spouse. The same must be said of a separation not of long duration from bed and cohabitation, for instance to undertake a journey.

Note 1. The ecclesiastical judge in causes of separation of which canon 1131, § 1 treats can proceed without a judicial process, even in the second grade or instance.²

Note 2. In several dioceses the faculty has been granted to vicars forane of granting separation from bed and cohabitation for a time.

Note 3. Those who improperly instituted separation by their own authority can be left in good faith and admitted to the sacraments, if hope of fruit is absent and scandal is not feared. Besides, note that a wife illegitimately expelled by her husband is not numbered among those who are separated by their own authority.

¹ 1 Corinthians 7:5.

² Pontifical Commission, July 25, 1932 (A.A.S. 1932, p. 284).

IV. Consequences of separation legitimately instituted. 1. When separation has been instituted, the children must be educated with the innocent spouse; and if one of the spouses is non-Catholic, with the Catholic spouse, unless in either case the Ordinary, for the good of the children themselves, their Catholic education always preserved, has decreed otherwise (canon 1132).

2. The innocent spouse, perpetual separation having been legitimately instituted, can with a dispensation of the Holy See enter Religion or receive sacred Orders; the guilty one cannot do this unless the other either has already changed state by professing Religion or receiving sacred Orders, or consents expressly, or tacitly, for instance by refusing reconciliation repeatedly demanded (St. Alphonsus VI, 969).

3. Separated spouses can restore common life by private authority, and this holds even if the sentence of separation was issued by an ecclesiastical judge.

Question 1. Whether it is ever licit to petition for civil divorce.¹

Response 1. If the marriage is invalid from any cause whatever and has been declared such by competent ecclesiastical authority, it is licit, by petitioning, to intend and obtain civil liberty.²

Response 2. If the marriage is valid, the things to be posited having been posited, it is likewise licit if the law in force does not intend the dissolution of the bond. If it intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it, because the petitioner can abstract from the intention of the legislator, and as a Catholic, for we are speaking of such a person, must be judged to abstract from it. This being posited, the petitioner, as we will immediately say, does not seek something which cannot be furnished by the judge without sin. I said "the things to be posited having been posited," that is, with the approval of the competent ecclesiastical authority first had, insofar as this is required according to what was said in n. 842. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage.

Question 2. Whether a judge can ever render a sentence of divorce if there is question of a valid marriage.

Response 1. If the law intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it. For the judge can abstract from the intention of the legislator and, as a Catholic, for we are speaking of such a person, he is judged to abstract from it. This being posited, his action is not evil in itself; nor does it involve approval, and therefore neither formal cooperation, of the action of the petitioners, who perhaps do not abstract from the intention of the legislator or who intend the dissolution of the bond. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage. Besides, a just cause for admitting material cooperation is already had from the fact that otherwise good men would have to abstain almost entirely from an office of such great importance.

The controversy does not seem able to be settled by authority. Some favorers of the more benign opinion appeal to the response given by the Holy Office to the Apostolic Nuncio of Belgium, September 14, 1866. But if you admit that by Belgian law the dissolution of the bond was originally regarded, the sense of the law already for a long time seems to have been so changed by usage that the law rather permits one to act as if the bond were dissolved than itself intends to dissolve the bond. Favorers of the stricter opinion chiefly allege responses of the Holy Office, June 25, 1885 and May 27, 1886; but the adversaries respond that these were probably given by reason of peculiar circumstances.³

Corollary I. Advocates of themselves speak licitly for divorce only insofar as the spouses licitly petition for it. If they petition illicitly, the advocate is not excused except on account of a most grave cause.

Corollary II. Where separation from bed and cohabitation suffices for the intended end, divorce of itself cannot be petitioned. Nevertheless it is licit on account of a very grave cause; for instance if, when divorce is petitioned, the whole offspring will be entrusted to the religious spouse, but if it is not petitioned, a part of the children certainly or probably will be entrusted to the irreligious spouse.

Corollary III. Pastors and confessors should for the most part endeavor to turn the faithful away from the plan of obtaining divorce, and to exhort the separated to restore common life, namely on account of the danger of incontinence which rather often is imminent to each party. There is added the fact that the education of the offspring easily suffers detriment; indeed the fear that the offspring, wholly or in part, may be adjudged to a pernicious spouse can be a reason on account of which one must abstain from divorce or from a lesser separation.

¹ Cf. Duynstee, Burgerlijk Recht en zielzorg, n. 76.

² Holy Office, September 9, 1824.

³ De Smet, op. cit., n. 399.