Separation of married people; divorce courts

670. Perpetual separation. 1. The new Code admits one cause of perpetual separation, namely the adultery of one party.¹ It is established both by divine law² and by ecclesiastical law³ that because of the adultery of one party separation of spouses can be made.

a. If Christ permits that a wife (a spouse) can be dismissed on account of fornication, he grants that which belongs to spouses by the law of nature; for since by force of the matrimonial contract they are bound to cohabitation, the innocent party is exempted from this obligation as soon as the other party has injured the matrimonial contract through adultery.

b. For instituting divorce any foreign concubitus suffices, even that which is done through sodomy or bestiality, provided that the division of flesh with another occurs through the effusion of seed in another vessel; for the division of flesh is the proper cause of divorce, because through the division of flesh matrimonial fidelity is broken.

2. These conditions are required so that adultery be a just cause of separation:

a. That it be morally certain; for in doubt no one is to be deprived of his right. Nevertheless it is not required that adultery be proved juridically, but most vehement suspicions suffice, which provide moral certitude, as if a wife already otherwise of bad reputation is found alone with a man alone in a place fit for sinning, or if a husband is made certain concerning the adultery of his wife by a most trustworthy person.

b. That it be perfect or consummated by carnal copula, without which there is no division of flesh.

c. That it be formal, not merely material without internal consent; for the penalty of divorce supposes a preceding fault.

d. That the other spouse did not consent to the crime or give cause to it. Since injury is not done to one who consents, the spouse does not have the right of departing if he or she consents to the adultery of the other party.⁴

e. That the other spouse did not expressly or tacitly condone it.

Tacit condonation: alpha. is had if the innocent spouse, after having been made certain concerning the adultery, voluntarily lived with the other spouse with marital affection; beta. is presumed if within six months he or she did not expel or abandon or accuse the adulterous spouse.⁵

f. That he or she did not also commit the same crime; in this case the injury is compensated by the injury, and the right of departing is lost.

3. These circumstances of separation to be instituted because of adultery are to be noted:

a. The innocent party can, but is not bound to, dismiss the adulterous party. For the right of separating was granted in his or her favor, and he or she can renounce this favor.

The obligation of dismissing an adulterous wife can arise from scandal, namely where, if the wife persists in adultery, the husband comes under suspicion of consent to the adultery. But this scandal can generally be prevented by other means, so that scarcely ever can an obligation of dismissing the wife be established.

b. If the adultery is certain, the innocent party can either separate by his or her own authority or seek a sentence of separation from the ecclesiastical judge. If the adultery is doubtful, the sentence of a judge must always be invoked.

c. The innocent party is never bound to admit the adulterous spouse, whether the separation was made judicially or by his or her own authority; but he or she can admit or recall that spouse, unless, with his or her consent, the latter has assumed a state contrary to matrimony.⁶ But if he is justly recalled, he is bound to return.

A state contrary to matrimony is the clerical state through the reception of sacred orders and the religious state through religious profession. Therefore the guilty party cannot assume a state of this kind without the consent of the innocent party. Yet if the latter has chosen a state which renders the continuation of conjugal life impossible, even the guilty party can choose such a state. But neither can the innocent party assume such a state without having obtained the license of the Roman pontiff.⁷

¹ In the old law also one spouse's lapse into heresy or apostasy from the faith gave the other party the right of departing.

² Matt. 19:9.

³ Council of Trent, sess. 24, can. 7; Code, i.e. cn. 1129, 1.

⁴ Cn. 1129, 1.

⁵ Cn. 1129, 2.

⁶ Cn. 1130.

⁷ Cf. cn. 987 and cn. 542.

671. Temporary separation. 1. The causes of temporary separation are enumerated in this way in the new law:

"If the other spouse has enrolled in a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger either to the soul or to the body of the other; if by cruelties he renders the common life too difficult -- these and other things of this kind are for the other spouse so many legitimate causes of departing, by the authority of the local ordinary and even by his or her own authority, if they are certainly established and there is danger in delay."¹

Not all causes of separation, but the chief ones by which separation can be done for a time, are enumerated here; concerning these the following things are to be noted:

a. What in the old law was a cause of perpetual separation, namely heresy and apostasy from the faith, now supplies a cause of temporary separation; to this is added a criminal and ignominious life.

b. Danger of soul is induced if a spouse tries to draw the partner to sin, e.g. to heresy or to other crimes. If the danger of falling is proximate and cannot be sufficiently removed by other means, the innocent party is bound to separate.

A husband is considered to draw his wife to sin also in this case, in which he supplies food to her from things taken by theft or unjustly acquired, because in this way he makes her a participant in his crime. Yet if the wife does not have from elsewhere that from which she may live, she can use those goods, because necessity excuses her. But if she has food from elsewhere, she cannot use those goods and licitly withdraws from her husband.

c. Danger of body arises from contagious disease, in our times especially from syphilitic disease, by which a spouse infects the spouse in the very use of matrimony; furthermore from severe and cruel treatment which renders cohabitation dangerous.

d. The following can render the common life too difficult:

Severe and harsh treatment.

How great the cruelty must be so that the other party acquires the right of separating must be determined by prudent judgment after considering the circumstances of places and persons. For the things which are considered light by wives of the common people can seem intolerable to a wife of more honorable condition.² Thus insults and imprecations, even if frequent, are perhaps made little of by a woman of humble condition, but they can be most grave to a well-educated woman.

Continuous quarrels, brawls, inveterate aversion and hatred by which one party is borne against the other. The danger which threatens the goods of fortune of the wife, if this danger cannot be removed by another means.

2. The causes of separation must be known and approved by the ecclesiastical judge, who grants separation either for a certain time or indefinitely, until the guilty party has come to his senses. Only if the fault is established and there is danger in delay is it permitted to the innocent party to depart by his or her own authority.³

3. When the cause of separation ceases, the association of life must again be restored. Only if the separation was pronounced by the ordinary for a certain time is the innocent party not bound to return unless the determined time has elapsed; and if no determined time was established, he or she can await a new sentence of the ordinary.⁴

4. Once separation has been instituted, the children to be educated are with the innocent spouse; and if the other spouse is non-Catholic, with the Catholic spouse, unless in each case the ordinary for the good of the children themselves, with their Catholic education always preserved, has decreed otherwise.⁵

Note. These things must be admonished for practice.

a. It belongs neither to the spouses nor to the civil power, but to ecclesiastical authority alone, to examine the cause of separation and to pronounce its sentence. Therefore the parish priest or confessor must direct the spouse alleging a cause of separation to the ecclesiastical judge. Yet because today the faithful can scarcely be brought to have recourse to the ecclesiastical judge, it will often be better for the confessor to dissimulate this obligation before those who are ignorant of it, provided the cause of separation is certain. This dissimulation must especially be advised when spouses already live separated in good faith, either by their own authority or by the authority of the civil judge, provided that there is no scandal underneath.

b. The confessor must beware lest he easily believe wives complaining of cruelties and troubles from the husband, and lest he either counsel or permit separation as to habitation. For morose wives are accustomed to dissimulate their own defects, but greatly to enlarge the defects of the husband. Moreover the matter would become much worse if the wife, with the confessor permitting, left the husband, but he, with the help of the civil power, recovered the wife who cannot prove the cause of separation before a judge.⁶

c. Since from the separation of spouses so many and so great evils arise, such as hatreds, enmities, adulteries, it must always be the last remedy, to be used only in the greatest necessity. Wives, however, must continually be admonished that by entering matrimony they have contracted, on the one hand, an obligation of patience and meekness, and on the other hand, through the sacrament, have received the helps of grace for bearing the burdens of matrimony with equanimity.

¹ Cn. 1131, 1.

² Ballerini-Palmieri VI, n. 507.

³ Cn. 1131, 2.

⁴ Cn. 1131, 2.

⁵ Cn. 1132.

⁶ Cf. Genicot II, n. 558; Aertnys II, 537.

672. State of the question. 1. From those things which were disputed above, nothing stands in the way of civil judges treating matrimonial causes of infidel subjects, provided they observe the statutes of natural law; likewise, the causes of marriages of the faithful in which there is question of merely civil effects; or if there is question of a merely civil matrimony; or if there is question of a matrimony indeed entered in the face of the Church, which nevertheless has already been declared invalid or dissolved by the sentence of an ecclesiastical judge; or finally if the judicial sentence is conformable to divine and canonical law, as when a separation or dissolution which the spouses seek unjustly and illicitly is denied.

In these last cases the civil judge indeed exceeds his competence, because he usurps jurisdiction which does not belong to him; but the sentence as to the matter or object is not contrary to divine or ecclesiastical law.

2. But it happens that civil judges in matrimonial causes issue sentences which are contrary to ecclesiastical or divine law, namely if they decree the separation of spouses where canonical causes of separation are lacking, or if spouses are compelled to cohabit where cohabitation is forbidden by divine law; likewise, if they declare valid marriages which the Church judges invalid, or if they dissolve marriages which are indissoluble by divine law. Now in these cases it is asked: a. whether it is permitted to a civil judge to pronounce a sentence of divorce according to the prevailing civil laws; b. whether it is permitted to the parties to seek civil divorce; c. whether it is permitted to an advocate to conduct a cause of civil divorce before the judge.

¹ Cf. Lehmkuhl, Das burgerliche Gesetzbuch des deutschen Reiches, 5 (Freiburg: Herder, 1900), p. 415 ff.

673. On the civil judge. A civil judge who conducts causes of divorce of this kind and gives sentence in them as if they pertained to the civil forum acts illicitly and unjustly, because he usurps ecclesiastical jurisdiction. But if he recognizes the power of the Church, the civil judge conducting a cause of divorce and pronouncing the sentence of divorce seems to act licitly, provided he observes these conditions: a. if he regards only the civil contract, i.e. intends only to break off the civil effects of matrimony; b. if he has a most grave motive for conducting a cause of this kind; c. if, for preventing scandal, he opportunely admonishes both the spouses and others that his sentence in no way regards the matrimony itself, but only the civil effects; d. if there is no special prohibition of the Church.

a. The action of the civil judge in this case is not intrinsically evil, but is an action indifferent of itself. For his sentence contains two things: that their matrimony is no longer considered by the civil power as a true matrimony, and consequently that a new matrimony which they would contract is not impeded by inflicted penalties; but neither of these is intrinsically evil. The spouses indeed abuse this sentence for dissolving a valid matrimony and attempting a new one; but this cooperation of the judge is licit from a most grave cause.

b. There are authors (Bucceroni, Gasparri, Matharan) who say that the sentence of civil divorce in this case is absolutely illicit as being intrinsically evil and repugnant to divine law. Their reasons are: the law of divorce itself is intrinsically evil and unjust; therefore a fortiori the sentence of divorce is evil and unjust; from divorce most grave evils follow: an erroneous judgment concerning the dissolubility of matrimony and also concerning the competence of the civil power in matrimonial causes gradually steals into the minds of the faithful; furthermore separated spouses are prohibited from restoring the society of life, and the prerogative of legitimacy is denied to their offspring afterward received; finally a new civil matrimony is permitted to separated spouses, to which all the rights and effects of true matrimony are granted, by which it happens that adulteries are fostered. This opinion is evidently confirmed from the decisions of the Roman congregations, since they establish the internal malice of that act.

c. But others (Ballerini-Palmieri, Lehmkuhl, Sabetti, De Becker, Genicot) do not hold the sentence of civil divorce to be intrinsically evil; but, after excluding a depraved intention, say that it is in itself indifferent. And indeed a sentence of this kind does not necessarily refer to the dissolution of the matrimonial bond, but only deprives the matrimony of the effects of a legitimate matrimony and asserts impunity for the spouses if they enter a civil matrimony. For just as civil matrimony can accede to true matrimony without affecting the matrimonial bond, so civil matrimony can be dissolved without its dissolution affecting the true matrimonial bond. This indeed can be admitted, even if the legislator and the spouses who seek divorce intend the dissolution of the matrimonial bond itself.

The following things must be noted regarding the arguments of the first opinion:

a. The intention of the legislator, who intends to dissolve the matrimonial bond itself, is not necessarily included in the sentence of divorce, but can be separated from it. And indeed the depraved intention of the legislator, by which he intends to bind the matrimonial bond itself, can be separated from the assistance which the judge furnishes to those contracting matrimony; therefore it will also be able to be separated from the sentence of divorce. Thus the civil law in the intention of the judge is not necessarily to be called unjust, since it must not necessarily be received in such a way that it declares the spouses dissolved from the bond itself.

b. From divorce most grave evils follow; but from this nothing else follows except that cooperation toward divorce, and therefore toward these evils, is licit only from a most grave cause. But a proportionately grave cause for cooperating is certainly present in this case, in which a matrimonial cause is offered to a Catholic judge for judgment which he cannot refuse without being deprived of office, but he cannot be deprived of office without harm following both to himself and to the common good, because a bad and impious judge would succeed in his place.

c. Finally, to remove the scandal of the faithful, the judge must declare to the parties that the sentence of divorce does not effect this, that the conjugal bond is dissolved, but only this, that the matrimony is no longer recognized by civil authority as a valid matrimony, and therefore no longer enjoys the rights of a valid matrimony.

674. On the responses of the Holy See. The question has rather often been treated in the Roman congregations, and several responses concerning this matter have been issued.¹

a. No general decree exists which settles this question; indeed, the Holy See has hitherto deliberately abstained from settling the question.

b. Several particular decrees exist, of which some proclaim the sentence of divorce illicit in France, while others proclaim that the same can be tolerated in Belgium.

c. The reason on account of which the Church has tolerated the cooperation of a judge toward civil divorce in some places, but has forbidden it in others, seems to be this. Namely, in this case there is question of cooperation in executing laws which are opposed to the rights and laws of the Church; cooperation of this kind, however, is altogether illicit when it redounds to the common harm of the Church. Now the judgment whether civil laws redound to the common harm of the Church belongs to the Church herself; therefore in particular cases recourse must be had to the Holy See.

d. From all these things this follows for practice: although it cannot be affirmed that the cooperation of a judge or syndic in civil divorce is certainly licit, this at least can be conceded, that it is not established that it is illicit and therefore to be prohibited to judges, unless the Church has declared it illicit. Therefore judges who exercise it in good faith are not to be disturbed unless the Church has prohibited it.

¹ Holy Office, 3 Apr. 1877, to the bishop of St. Gall, which orders judges in particular cases to have recourse; Holy Office, 27 May 1886, which prohibits the sentence of divorce for France; letters of the apostolic nuncio to the minister of the kingdom in Belgium, 14 Sept. 1886, where it is said that the prohibition issued for France is not to be extended to Belgium; S. Poenitentiary, 24 Sept. 1887, which tolerates the sentence of divorce in a particular case (of Lucon); S. Poenitentiary, 4 June 1890, which declares that the case of Lucon cannot be extended to other cases.

675. On spouses. a. If spouses do not intend to seek divorce so that they can pass to other nuptials, but only so that matrimony may be deprived of civil effects and they themselves may in this way be freed from a grave evil and inconvenience from which they cannot be freed in another way, this is permitted.¹

b. If they can obtain the intended end even through mere separation as to habitation and goods, it is not permitted to them to seek the sentence of divorce; for there is no reason for seeking it.

c. If spouses seek the dissolution of the bond itself, so that they can pass to other nuptials, it is not permitted to seek divorce, because they seek an evil thing and one repugnant to divine law.

d. Since matrimonial causes pertain to the Church, it is not permitted to spouses to seek civil divorce unless beforehand, from a canonical cause, they have obtained license of separating.

¹ To the question whether a husband can seek divorce from an adulterous wife, intending only to break off merely civil effects, when no other means is available for obtaining repudiation of paternity concerning adulterine children and their exclusion from the portion of legitimate offspring, the S. Penitentiary on 30 July 1892 responded: let the petitioner consult approved authors.

676. On advocates. a. If an advocate performs the parts of defender of the matrimonial bond, which is a true matrimony, there is no other difficulty except that the cause is conducted in an incompetent forum, namely the civil forum. But the Holy See has declared that cooperation in causes of this kind can be tolerated, "provided it is established to the bishop concerning the probity of the advocate, and the advocate does nothing which deflects from the principles of natural and ecclesiastical law."¹

b. If an advocate conducts the cause of divorce when the spouses licitly seek divorce, he licitly argues for divorce.

c. But if the spouses seek divorce either without a just reason or from the depraved intention of afterward entering a new matrimony, he certainly cannot undertake the cause without a most grave reason. But if a most grave reason is present, e.g. of avoiding notable harm, he can conduct the cause; for he is not necessarily bound to conform himself to the intention of the parties, and cooperation toward their sin is excused by a most grave cause.

¹ S. Officium, 19 Dec. 1860.

Married people ought to live together as man and wife unless there is some good reason to the contrary.

If one of the parties commits adultery, the other has the right to separate from him altogether as to bed and board, unless he consented to the crime, or was the cause of it, or expressly or tacitly condoned it, or he himself has committed the same crime.

When an innocent spouse has separated from the adulterer by his own authority or that of a judge, he is under no obligation to admit him again to marital cohabitation; but he may admit him or recall him, unless with his consent he has adopted a life incompatible with marriage.

If a spouse has joined a non-Catholic sect, if he is educating a child as a non-Catholic, if he is leading a criminal and shameful life, if he is the cause of grave danger to the soul or body of the other, if by his cruelty he makes cohabitation too difficult for the other, these and similar causes are so many lawful reasons of separation for the other party, by the authority of the local Ordinary and also by his own authority if the causes are certain and there is danger in delay.

In all these cases when the cause of separation ceases cohabitation should be restored; but if separation was decreed by the Ordinary for a certain or uncertain time the innocent party is not obliged to cohabit unless the time fixed has elapsed or by the decree of the Ordinary (Can. 1128-1131).

Although questions concerning divorce and the separation of married people belong of right to the ecclesiastical court, in most modern States the civil authority claims and exercises jurisdiction in these matters. May Catholics take their marriage cases to the civil courts, and may Catholic judges and Catholic lawyers lend their aid in deciding them¹ No answer can be given to these questions which will apply to all countries and circumstances. In some countries Catholics can still have their rights safeguarded by recurring to the ecclesiastical courts, and there is no reason why they should carry their matrimonial suits to the civil tribunals, In England and in the United States the Church tacitly or explicitly permits Catholics to apply to the civil courts at least for a judicial separation. Before doing so they should put their case before the ecclesiastical authorities, and this is prescribed under liability to penalties by the Third Plenary Council of Baltimore.

With regard to divorce cases, Catholics in England and in the United States may have recourse to the civil courts in order to obtain a declaration of nullity when a marriage has already been declared invalid or annulled by the ecclesiastical authorities. They may not go to the civil courts in order to obtain dissolution of a valid marriage with the intention of marrying again. This is obvious from what has been said above. There is a difficulty as to whether a Catholic may petition for a divorce in the civil courts, not with the intention of considering the marriage dissolved and marrying again, but in order to obtain the civil advantages annexed to divorce, such as a change of marriage settlements or release from the obligation of supporting his wife’s child by another man. The question is disputed among theologians, but as the law in English-speaking countries does not express hostility to religion and does not affect to touch the conscience but only the external relations of the citizens, the better opinion is that Catholics for good cause may petition even for divorce in the civil courts, with the intention of using only the civil advantages that follow from it. A consequence of this is that Catholic lawyers and judges may for grave reasons undertake these cases in the civil courts. For greater safety and to show their submission to the Church they should ask the leave of the Bishop.

¹ N. 126; S.O., December 19, 1860.

Separation of spouses or divorce is distinguished as threefold: namely, dissolution of the bond itself or full divorce; separation from bed and copula; and separation from bed, board, and cohabitation. The latter is called 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.

The Lawfulness of Divorce and Separation.—(a) Complete divorce, or dissolution of the bond with the right to remarry during the lifetime of the other spouse, is never lawful, except in the cases mentioned in 2787 e. Moreover, the civil lawgiver has no right ever to dissolve the marriage tie, for the marriage bond of Christians is sacramental and not subject to the State, while the marriage bond of non-Christians is indissoluble by human authority. On the death of one spouse, however, the survivor is free to marry again, though chaste widowhood is more honorable.

(b) Incomplete divorce, or separation from bed and board, is allowed permanently to the innocent spouse in case of adultery, and temporarily when there are other good reasons. Thus, if one of the parties becomes an apostate, or gives non-Catholic education to the children, or leads a criminal or disgraceful life, or makes common life too hard by his cruelty, or endangers the other party in soul or body, the innocent spouse may separate after appealing to the Ordinary, or may depart on his or her own authority, if the facts are certain and there is danger in delay (Canons 1118 sqq.). With permission one may even seek a civil divorce, if it is a separation only, in order to be free as regards civil effects of marriage (1950).

760. Principles. - I. Spouses, by reason of the matrimonial bond, are bound to cohabit together and lead a common life. The reason is drawn from the very definition of matrimony.

II. Divorce, however, or separation from bed or habitation can take place for just causes while the conjugal bond nevertheless remains, so that neither party can enter another matrimony before the death of the other. This is declared by the Council of Trent, session 24, canon 8: If anyone shall say that the Church errs when, on account of many causes, she decrees that separation between spouses as regards the bed or habitation can take place for a determinate or indeterminate time, let him be anathema.

761. • III. The causes which render a divorce of this kind honorable are: mutual consent, grave danger to the soul or body, and the adultery of either party. You will understand these causes for practice thus.

1. Mutual consent: namely, each spouse together can renounce the right proper to each as regards the bed, either for a time or in perpetuity, provided danger of incontinence is absent ¹. Likewise, they can be separated also as regards habitation, either temporarily for reasons of business, or perpetually because of a desire for a more perfect life ².

¹ Laymann speaks well concerning this matter: On account of the danger of incontinence, it is not advisable for spouses to vow continence unless mature deliberation and long experience that both can easily be continent have been premised; and after the vow they ought to be separated as regards the bed (book 5, tract 10, part 3, chapter 7, nos. 1-2).

² This can happen in two ways: first, through the entrance of either or both spouses into Religion; second, through the reception of sacred Order by one and either religious profession or at least a vow of continence by the other.

As regards the first, if either spouse, with the consent of the other, embraces Religion - and for this to be done licitly the consent of the Bishop is required from chapter Si vir 23, cause 27, question 2 - the spouse left behind, if young or suspected of incontinence, must also enter Religion; but if old and in no way suspected of incontinence, that spouse must at least emit a vow of continence in the world, and can be compelled by the Bishop in a suitable manner to live honestly if perhaps the promises voluntarily made are not observed. But if either spouse makes profession in Religion against the will or without the knowledge of the other, the profession is invalid, even if they had perhaps previously emitted a vow of continence by common consent, and the professed spouse will be restored to the spouse left behind (chapter Quidem 3 and chapter Placet 12, On the Conversion of Spouses). Furthermore, unless perhaps in making profession that spouse was unwilling to vow continence except dependently upon the validity of the profession, the spouse will be bound by that law, cited chapter Quidem, which holds the profession at least as a vow of continence; hence that spouse can neither demand the debt nor pass to other nuptials after the death of the other spouse. See Schmalzgrueber, book 3, title 32, nos. 24-28.

As regards the second, a wife by whose consent the husband receives sacred Orders is bound by the same laws as a spouse left behind when the other professes religious vows, namely, either she also must enter Religion or, if advanced in age, etc., at least emit a vow of continence. Nevertheless, she would have to assume a religious habit, even if she were an old woman and every danger or suspicion of incontinence were absent, if the husband initiated into sacred Orders were perhaps assumed to the Episcopate, as chapter Sane 6, On the Conversion of Spouses, expressly has it. See Schmalzgrueber, book 4, title 6, no. 38.

Although the vow of continence which wives left in the world emit in the aforesaid case is simple, and insofar as it is simple appears by its nature not to be a diriment impediment of matrimony, nevertheless it is certain among the Doctors, and expressly sanctioned in Canon law, that these women cannot validly enter another matrimony even after the death of the spouse initiated into sacred Orders; indeed, they teach that the same must be held even if the woman had not vowed continence when she gave her husband permission to receive sacred Orders. See Sanchez (book 7, disputation 40) and Schmalzgrueber (book 4, title 6, nos. 40-42). I said after the death of the spouse initiated into sacred Orders, because if the husband, without having received sacred Orders, had merely made profession in Religion, the wife, notwithstanding the vow of continence, would marry another after his death illicitly indeed, but not invalidly.

2. Grave danger to the soul, if danger of perversion is present in one spouse because of the other; and grave danger to the body, if danger of life or mutilation threatens, or if cohabitation on the part of one toward the other becomes so burdensome that it is rendered morally impossible. This would happen if a spouse were compelled to suffer enormous or frequent cruelties.

3. The adultery of either party, namely, such that it is: first, certain ³; second, voluntary, and not perpetrated through inflicted violence; third, not condoned either expressly or implicitly, for example, through the conjugal act ⁴; fourth, not mutual, because compensation would then exist. This is evident from the words of Christ, Matthew 5:32: Whoever shall dismiss his wife, except for the cause of fornication, makes her commit adultery, etc. But if this is licit for the husband, by the same reason it must also be licit for the wife ⁵.

³ Only moral certainty is required, as St. Alphonsus holds from the common opinion of the Doctors (book 6, no. 961). For the Doctors commonly observe that since carnal offenses are difficult to prove, witnesses are therefore not to be required for proving adultery, but conjectures are to be employed, and presumptions which they call violent suffice, by which a certain moral certainty is induced, namely, by which it can prudently be believed that the crime was perpetrated. Alexander III enumerates these presumptions in chapter Litteris 12, On Presumptions. Concerning these see, among others, Schmalzgrueber (book 4, title 19, nos. 116-117).

⁴ Understand this if the spouse knowingly and willingly exhibited services and signs of conjugal affection to the other spouse. For where only suspicion of adultery was present, the use of matrimony does not prejudice the innocent party; likewise, if while the suit is pending the judge commands that meanwhile the wife render the debt, or if the guilty husband compels the wife by grave fear to the use of matrimony.

⁵ Observe that, according to the common opinion of the Doctors, under the name of adultery here comes every division of the flesh, although it does not have the nature of adultery properly so called, such as sodomy and bestiality. I said according to the common opinion, for through a mere typographical error in St. Alphonsus (book 6, no. 960), Sanchez and Filliucius are exhibited as holding the contrary; and Pontius himself (On Matrimony, book 9, chapter 16, no. 5), although for a display of ingenuity he brought forward in opposition a petty argument which everyone despised, concluded that in practice one must not depart from the prior opinion, which, he says, is common among the Doctors.

The VV. observe here (page 806) that the typographical error spoken of in the Note is found not in the text of St. Alphonsus but in that of Hermann Busembaum; and this is most true. And indeed this error is seen not only in St. Alphonsus, that is, in the text of Hermann copied by St. Alphonsus (book 6, no. 960; in the preceding edition, by an erroneous transposition, no. 690), but also in Croix (book 6, part 3, no. 401) and in most editions of Hermann Busembaum, which commonly have: Bonacina against Filliucius, Sanchez, Perez, when it ought rather to have been written: Bonacina, Filliucius, Sanchez against Perez, who in fact allowed himself to be carried away by the inept petty argument of Pontius (On Matrimony, disputation 56, section 2, nos. 3-4). Moreover, if the VV. desire anything to be corrected also in the text of St. Alphonsus (l.c., no. 962), in most editions they have Sanchez, book 16, disputation 4, no. 2, cited, when book 10, etc., ought to be written. Again, since St. Alphonsus, for the opinion denying, cites also Abulensis after Sanchez, it would not be useless to add from the same Sanchez (ibid., no. 3) that Abulensis, previously contrary to himself, passed once and again to the affirmative opinion.

The VV. add (l.c.): Father Ballerini testifies that Pontius, for a display of ingenuity, brings forward a petty argument which everyone despised. But St. Alphonsus himself, who relates and approves the same petty argument, must be excepted from this everyone; and although Father Ballerini judges that opinion of the Holy Doctor to be altogether despised, perhaps it may have some weight with others.

Reply. I deny that St. Alphonsus relates or approves the petty argument of Pontius. The reason according to Pontius (book 9, chapter 16, no. 5) is that, since division of the flesh among several persons is said in law to be a cause of divorce, this must be understood of that division which is according to natural use; and this is established because by that division bigamy and irregularity are induced in law. But no base union outside natural use induces bigamy and the irregularity arising from bigamy. Perez (l.c.) indeed copied this petty argument, but St. Alphonsus does not have even a word concerning it; and therefore he too despised it. And deservedly the Holy Doctor despised that reasoning, as though the reason and nature of division of the flesh were generally to be sought from bigamy which induces irregularity. For if a spouse commits adultery, as Pontius acknowledges, the spouse divides the flesh, yet does not thereby become a bigamist and irregular. Say the same of one who sins with two or even several women, who certainly divided the flesh and is not thereby held a bigamist. On the contrary, if someone marries a widow, he does not thereby divide his flesh, and yet is considered a bigamist and irregular, just as also if he marries a woman who has been corrupted. Therefore the division of the flesh from which the irregularity of bigamy arises is neither the sole division of the flesh nor every division of the flesh, but a certain manner of division of the flesh; and therefore it is a foul sophism to deduce the absence of division of the flesh from the absence of bigamy.

Moreover, Pontius himself suggests that these things appear to have been brought forward by him for mere display, when he concludes: But although, speculatively speaking, what I said appears so to me, nevertheless in practice I judge that one must not depart from the prior opinion, which is common among the Doctors. Hence it happened that others numbered him among the defenders of the common opinion, for example, Schmalzgrueber (book 4, title 19, no. 103).

762. Questions. - QUESTION 1. Is a husband, upon learning of his wife's adultery, bound to dismiss her?

Reply 1. It is certain that he is not bound by reason of the adultery, because divorce was conceded in favor of the innocent party, not as a punishment of that party. - Thus commonly the Theologians. - St. Ligorius, no. 965.

Reply 2. Sometimes the husband can be bound to dismiss an adulterous wife by reason of fraternal correction or of avoiding scandal ⁶; but this case is rare, both because other means can be employed to correct the wife or avoid scandal, and because grave scandal to be feared from the separation can excuse ⁷. Moreover, the wife, if cast out, would be exposed to greater danger, at least for the most part. - St. Ligorius, ibid.

⁶ Namely, lest the innocent spouse appear to consent, or at least connive, at the crime of the other. Nevertheless, other means are available also for avoiding this scandal.

⁷ A grave inconvenience can also excuse, for example, if the family would thereby be deprived of support, or the offspring of care and education, etc. If these things have force concerning the husband, a fortiori they have force concerning the wife, as St. Alphonsus observes with others (book 6, no. 964).

763. • QUESTION 2. Once divorce has taken place, can the innocent spouse compel the other to return?

Reply 1. Yes, if there is question of a non-juridical separation, because this is not confirmed by a sentence of the judge.

Reply 2. More probably, yes, even in the case itself of juridical separation. The reason is that a sentence of juridical separation is rendered in favor of the innocent party and therefore does not remove the right of recalling the other; nor is a new sentence of the judge needed for this ⁸. Nevertheless, an adulterous woman is not to be compelled to return whenever she can reasonably fear that she will be treated harshly, bitterly, or even cruelly. - St. Ligorius, ibid., etc.

⁸ It must be observed that although, according to common doctrine, the innocent party after juridical divorce has taken place can enter Religion or receive sacred Orders even against the will of the adulterous party, nevertheless this is not conceded to the adulterer who has been dismissed. Therefore the latter can neither enter Religion nor be initiated into sacred Orders unless the innocent party consents either tacitly or expressly or has already undertaken an irrevocable state; and if the adulterer should enter Religion, the adulterer could be recalled by the innocent party even after profession. Sanchez, book 10, disputation 10, nos. 12-13. St. Alphonsus, however, observes with Sanchez (l.c., no. 14) that even tacit consent suffices for this, namely, if the innocent party knows this and does not contradict when able; yet in that case the innocent party is bound neither to enter Religion nor to bind himself or herself by a vow of chastity. See Schmalzgrueber, book 4, title 19, nos. 124-126. St. Alphonsus (l.c.), after Sanchez (l.c., no. 16), concedes the same to the guilty party when the innocent party, having been asked, was unwilling to admit reconciliation, or even if the innocent party has not recalled the guilty party after two years have already elapsed.

QUESTION 3. After juridical separation because of adultery has taken place, is the innocent spouse bound to return to the other party recalling him if he himself afterward fell?

Reply. More probably, no. The reason is that the first adulterer was already altogether despoiled by the sentence of the judge of every right toward the innocent party. - St. Ligorius, no. 967 ⁹.

⁹ Although St. Alphonsus calls this opinion much more probable, others, especially Canonists, such as Fagnanus, Reiffenstuel, Gonzalez, Schmalzgrueber, etc., and with them Barbosa, Koning, etc., hold the opposite opinion to be truer. Nor must it be omitted that St. Thomas (In IV Sentences, distinction 35, question 1, article 6, reply to objection 4), although he says that the man previously innocent ought not, according to the rigor of law, to be compelled to receive the adulterous woman, adds nevertheless that, according to the equity of law, the judge by virtue of his office ought to compel him so that he may guard against danger to his own soul and scandal to others.

764. • QUESTION 4. Can divorce take place by private authority?

Reply 1. Yes, as regards the bed, if a just cause is present, as was said above, and especially by reason of adultery, because the rights of matrimony can be denied perpetually to the unfaithful spouse ¹⁰.

¹⁰ This has force although the crime is occult; and even if, because proofs were lacking, the innocent party were compelled by an ecclesiastical judge to render the debt, nevertheless that party would not be bound to obey a sentence of this kind, which rested upon a false hypothesis. See Sanchez (On Matrimony, book 10, disputation 12, no. 34).

Reply 2. As regards habitation: first, yes, by reason of adultery, even if the crime is occult, at least more probably, because Christ, in permitting divorce for this cause, did not distinguish between public and private adultery. But for this it is required that the crime be certain and that no scandal arise from the separation which cannot otherwise be repaired ¹¹. - Thus commonly. - St. Ligorius, no. 969. Several nevertheless say that divorce on account of occult adultery is not licit, because it is not licit to expose the reputation of the adulterer. Second, yes, also by reason of danger either to the soul or to the body, provided that danger is very grave. But in practice it is expedient that the counsel of a prudent man, especially a Confessor, be sought. The Confessor, however, must proceed very cautiously in this matter. Let him beware lest he too readily believe the complaints of wives against their husbands; and let him endeavor to restrain them and, insofar as it can be done, turn them away from divorce.

¹¹ But scandal of this kind can scarcely be absent unless the marriage itself is occult; and therefore, outside this case, on account of scandal he could not dismiss the spouse even in the forum of conscience. And if he dismisses the spouse while proofs are lacking, he would have to be compelled to receive the spouse, lest an occasion be given to the malice of men to vex a perhaps innocent spouse by a dismissal of this kind.

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.

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.

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.

The plague of divorce, the increasing facility of which is deplored by the Encyclical.¹ Even persons who are little affected by the religious motive are alarmed by the moral and social decline which statistics indicate.² Nevertheless, the obstinate abettors of the new paganism continue to agitate for the establishment of divorce where it does not yet exist, and for extending its facility where it is already recognized.

¹ Pp. 48-51.

² See, for instance, the statistics published by us in Periodica, 1930. See also Dermine, La doctrine du mariage chrétien: “Divorce,” he writes, p. 139, “makes love free, and kills it; indissolubility disciplines love, and saves it.”

They allege both subjective and objective reasons: the interests of the parties themselves they argue, demand that the innocent party be allowed to break with the guilty, and that the guilty party be withdrawn from a union which has become painful and strained; the welfare of the children requires that the quarrels and misbehavior of the parents be removed as a source of offence and scandal; the good of society demands the annulment of marriages which do not fulfill their purpose, and the legal separation of unhappy couples to prevent crimes, and to forestall lies and official perjuries committed in the course of legal proceedings for divorce. Others, seeing no longer in marriage anything but a private contract, claim that, like any other contract, it can be made and dissolved by mutual consent.

It replies in the first place by recalling the inviolable law of God and of Christ, and the anathemas of the Council of Trent. We must have confidence in God and in the Church; neither God nor the Church is mistaken: that is enough to reject, in the name of the common welfare, the reasons conjured up under color of the same interest. Then it adds that in extreme cases separation duly regulated by competent authority, that is, fundamentally by ecclesiastical authority, and as regards civil effects by the civil authority, is a sufficient protection against the evils mentioned. Finally, a detailed contrast drawn between the regime of indissolubility and that allowing divorce, is an eloquent refutation of the argument attempted in favor of the latter.

From the earlier Encyclical of Leo XIII: To revert again [says the Holy Father] to the expressions of Our predecessor, it is hardly necessary to point out what an amount of good is involved in the absolute indissolubility of wedlock and what a train of evils follows upon divorce. Whenever the marriage bond remains intact, then we find

marriages contracted with a sense of safety and security, while, when separations are considered and the dangers of divorce are present, the marriage contract itself becomes insecure, or at least gives ground for anxiety and surprises. On the one hand we see a wonderful strengthening of good will and co-operation in the daily life of husband and wife, while on the other both of these are miserably weakened by the presence of a facility for divorce. Here we have at a very opportune moment a source of help by which both parties are enabled to preserve their purity and loyalty; there we find harmful inducement to unfaithfulness. On this side we find the birth of children and their tuition and upbringing effectively promoted, many avenues of discord closed amongst families and relations, and the beginnings of rivalry and jealousy easily suppressed; on that, very great obstacles to the birth and rearing of children and their education, many occasions of quarrels and seeds of jealousy sown everywhere. Finally, but especially, the dignity and position of women in civil and domestic society is reinstated by the former; while by the latter it is shamefully lowered and the danger is incurred of their being considered outcasts, slaves of the lust of men.¹ Considering the exceptional importance of this matter, it seems worth while to sum up in a synoptic form the teachings which we have just transcribed. | INDISSOLUBILITY | DIVORCE | |---|---| | Marriages peaceful and secure. | Unions made precarious by even the distant prospect of divorce, and by suspicions easily aroused. | | Mutual good will strengthened. | Good will weakened. | | Guarantees of chaste fidelity. | Harmful temptations to infidelity offered. | | Birth and education of children protected. | Birth and education of children compromised. | | Door closed against discord between families. | Many occasions of discord. | | Seeds of discord nipped in the bud. | Seeds of discord growing to bitterness. | | Dignity and position of woman upheld in society and the home. | Humiliation of woman, often irreparable. “After having ministered to the passions of their husbands they are in danger of being considered as outcasts.”—Leo XIII, “Arcanum.” |

¹ Pp. 50, 51.

It is the open road to the decay of morals, and leads to an ever-increasing number of broken homes.

It notes the justice of the forecast made by Leo XIII, the unheard-of degradation of the family where Communism is in control.

— 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.

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

³²⁰ Cf. Matt. 19:5.

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

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

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

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

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

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

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

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

³²⁴ Code of Canon Law, c. 1131, § 1.

679. 1. On divorce because of carnal adultery.

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

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

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

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

α) morally certain.

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

β) formal, culpable, and freely committed.

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

γ) not condoned, induced, or permitted.

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

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

δ) not mutual.

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

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

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

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

³²⁵ Matt. 5:32 and 19:9.

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

³²⁷ St. Thomas, Suppl., q. 62, a. 1.

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

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

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

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

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

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

³³⁴ Code of Canon Law, c. 1129, § 2.

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

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

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

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

³³⁹ Code of Canon Law, c. 1130.

³⁴⁰ Theol. mor., l. 6, n. 967.

³⁴¹ Code of Canon Law, c. 542, n. 1.

680. 2. On divorce because of spiritual adultery.

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

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

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

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

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

³⁴⁴ Code of Canon Law, c. 1131, § 1.

³⁴⁵ C. 6, X 4, 19.

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

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

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

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

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

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

To grave danger to the body can be reduced:

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

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

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

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

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

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

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

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

683. 5. On divorce by mutual consent.

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

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

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

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

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

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

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

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

³⁵² 1 Cor. 7:5.

2122. Principles. I. DIVORCE, or separation from bed or habitation, can be made for just causes, while the bond of marriage remains. - This is clear from Trent (sess. 24, can. 8): "If anyone shall say that the Church errs when she decrees that, on account of many causes, separation between spouses, as regards bed or as regards cohabitation, can be made for a certain or uncertain time: let him be anathema."⁶

2123. II. There are very many CAUSES OF DIVORCE, or of the separation of spouses as regards bed and habitation. This is clear from different places of canon law, against some Protestants, who acknowledged adultery as the only cause of this separation. - But the CAUSES enumerated by canonists can be reduced to THREE:

1. The first and principal cause, on account of which it is licit to make divorce, and indeed perpetual divorce, is the adultery of a spouse. - This is clear both from divine law, the Lord saying (Matt. 19:9): "Whoever shall dismiss his wife, except on account of fornication, and shall marry another, commits adultery"; and from canon law, cap. Significasti and cap. Gaudemus, de divortiis. - But it is REQUIRED that the adultery be: 1) morally certain; - 2) voluntary, and not perpetrated from violence brought upon one; - 3) not condoned, whether expressly or implicitly, e.g. by the conjugal act, or by other signs, exhibited by the innocent party conscious and mindful of the adultery, with the mind, for the internal forum, of condoning; - 4) not mutual, because then compensation would exist; - 5) consummated by intercourse, as is more probable to St. Alphonsus; - 6) committed without the consent of the coparty. - And here it must be noted that, from the more common and at least extrinsically more probable opinion of authors, under the name of adultery there is also understood every division of flesh, such as sodomy and bestiality.¹ Long-lasting and injurious desertion is also customarily equated with adultery.²

We said that it is licit to make divorce; for the innocent party is not held to dismiss the guilty party, unless this is necessary for correction and amendment, or for removing scandal; and in these cases also he is excused whenever he would prudently fear grave inconvenience from it.³ Nor indeed is some adultery admitted before nuptials and afterward disclosed a sufficient cause of divorce, unless injury is inflicted on the husband from it, as would be if the wife, when she married, had already been pregnant by another; for then, as one deceived and injured, he can remove from himself, by the authority of the Church, her who contrived fraud and dishonor for him. And this same thing seems to be said if the wife had given herself to prostitution.

Authors note besides the following: 1. A juridical separation having been made, the innocent spouse is not held to receive the adulterous coparty, although amended; for "on the one hand Christ has perpetually freed him from the obligation of cohabiting with an adulterer, and on the other hand charity does not seem, of itself, to oblige to so great a burden."⁴ - 2. Yet he can recall the adulterous spouse to himself, although juridically separated, because he can renounce his right; but it is scarcely to be counseled or prescribed to an adulterous woman that she return to the husband, on account of the frequent danger of bad treatment.⁵ - 3. If after the sentence of divorce it happens that the other spouse also commits adultery, it is more probable that neither is held to return to the coparty recalling; because by the sentence of the judge each was freed from servitude. Nevertheless, the judge ought to take care that they return to each other, so that they may better provide for the salvation of their souls and remove the scandal of others.⁶

2. The second cause of divorce is some grave danger of soul or body; by reason of which danger: 1) If one of the spouses slips into heresy or apostasy from the faith, which is spiritual adultery, it is conceded to the other to institute divorce, even perpetual, after the sentence of the judge.⁷ 2) If a spouse draws the coparty into sin, e.g. if he solicits that one to heresy, sodomy, adultery, etc., the innocent party can depart, indeed is bound if the danger is grave.⁸ 3) Finally, if from cohabitation there threatens grave danger of life or health, or if cohabitation becomes so burdensome that it is rendered morally impossible; for instance, if a spouse were compelled to suffer cruelties grave and frequent for his condition, or if the wife were expelled without cause.⁹

3. The third cause is mutual consent. From this consent spouses separate themselves licitly from bed, or even from habitation, whether for a time or in perpetuity. - Moreover, separation from habitation in perpetuity is not customarily permitted unless each enters Religion; or at least unless, when one professes Religion or receives sacred Orders, the coparty vows chastity. But this ought not to be done inconsiderately; rather, it is required that, all things having been well weighed, every danger of incontinence be absent, and offspring not need the care of parents, etc.; for the evangelical counsels do not free human beings from the duties by which they are bound by the law of nature.¹⁰

2124. Questions. QUESTION 1. By what AUTHORITY ought the separation of spouses to be made?

Resp. It is to be made, regularly speaking, by the authority of the judge, i.e. of the Bishop, whenever there is question of separation from the roof; because such separation is public and pertains to external governance; and although it remained hidden, nevertheless the authority of the Bishop would be required.

We said 1. regularly; for by private authority divorce can be made by an innocent spouse in the case of cruelty or danger of perversion, if there is danger in delay, and the judge cannot be approached, or perhaps the fact cannot juridically be proved. Likewise, it can be made by the husband, more probably, in the case of the wife's adultery, whether the adultery is public or hidden, provided it is certain and provided the separation does not bring public scandal with it. For it is said in law: "Wherever there is fornication, or suspicion of fornication, the wife is freely dismissed."¹¹ But in the case in which he were compelled by the judge to cohabit with the adulteress, he would indeed be held to obey, but by no means to render the debt.¹²

We said 2. whenever there is question of separation from the roof; for spouses, from their own authority and mutual consent, can be separated from each other as regards bed, provided danger of incontinence is absent, as is clear from the words of the Apostle (1 Cor. 7:5): "Do not defraud one another, except perhaps by consent for a time, that you may give yourselves to prayer; and return again to the same, lest Satan tempt you because of your incontinence." Recall the things said in n. 2103.

QUESTION 2. After juridical divorce has been made on account of adultery, can the spouses enter RELIGION, or the man receive SACRED ORDERS?

Resp. 1. The innocent spouse can, even against the will of the adulterous party, enter Religion or receive sacred Orders.

2. The adulterous spouse cannot enter Religion, nor be initiated into sacred Orders, unless the innocent one consents, or has already himself undertaken an irrevocable state; otherwise, if he received the priesthood or entered Religion, he could be recalled by the innocent party, even after profession. Nevertheless, the tacit consent of the innocent party suffices, e.g. if the innocent one, knowing that the adulterer wishes to change state, does not impede him, though he conveniently could; or if, when asked by the adulterer, he did not wish to admit reconciliation.¹³

QUESTION 3. After juridical divorce has been made, with which spouse are the CHILDREN to be educated, and at whose expense?

Resp. 1. Natural law being considered, all children are to be educated with the innocent spouse. Except if this one is an infidel or heretic, because then they are to be educated with the faithful spouse.¹⁴ But from civil law, children are generally handed over to the one who obtained the separation, unless, on account of the greater advantage of the children, the judge has established otherwise.¹⁵

2. The expenses of the whole education are regularly to be paid by the spouse who is in fault. Yet always in these matters the sentence of the judge is required, by which one must stand.

2125. PRACTICAL RULES. As regards spouses who, legitimate separation not having been sought, live separated, let the parish priest or confessor attend to the following: - 1) A woman whom it is publicly clear to have been unjustly driven away by her husband is not to be barred from the Sacraments; and the husband is not to be absolved unless he restores the consortium of life with the wife. - 2) He who withdrew from the coparty by reason of notorious adultery is not to be disturbed; but the guilty party is not to be admitted to the Sacraments unless he has repaired the crime and scandal. - 3) They are to be held unworthy of absolution who, on account of a matrimony unhappily begun, e.g. mutual aversion, have separated themselves by private counsel. But, scandal having been removed, if they are in good faith and do not wish to acquiesce when admonished, they are not to be admonished concerning this.¹⁶

2126. FROM CIVIL LAW, in force in many places, there can be had a judicial sentence of divorce or of separation from bed and from habitation, on account of various CAUSES, which are commonly enumerated as THREE, namely: 1. Adultery of the woman, and also of the man, if he kept a concubine in the house common to the spouses. 2. Cruelties or grave injuries brought by one spouse against the other. 3. Condemnation of one of the spouses to an infamous penalty.¹ - And here it must be NOTED that separation of bodies always imports separation of goods, but not vice versa.

Indeed, in several places, civil law permits not only that imperfect separation, or separation of habitation and goods, but also DIVORCE PROPERLY SO CALLED, namely as regards the civil bond, so that it becomes free for spouses to pass to other nuptials. And in that case, to the three causes of separation already numbered, in certain places there is added a fourth, namely mutual consent.

Wherefore it helps to report the following Documents of the HOLY OFFICE.

1. Response to the Bishop of St. Gallen: "The law of the Swiss Confederation enacted concerning status and civil matrimony sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and thereafter, are to be treated in lay tribunals according to the norm which is established in civil causes; and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recent enacted law, by which even marriages of Catholics can, under certain very light reasons, be perpetually severed and dissolved as regards the bond, so that litigating spouses of this kind, after the sentence of divorce of secular judges has been passed, can pass to contracting other marriages if they wish. Therefore it is asked: Whether Catholic JUDGES and ADVOCATES in lay tribunals of this kind can with safe conscience take up and defend, or know and judge, matrimonial causes? - Likewise, whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of matrimony as to be dissolved, or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, just as civil law in this case expressly commands and urges judges to judge and declare?"

In discussing this question, it must not be forgotten that the secular tribunals, whose office it is to judge concerning civil causes, are the same tribunals to which by the new law it belongs to know and judge matrimonial causes. But if, therefore, Catholic judges were forbidden to sit in tribunals of this kind, we would experience, to the great harm of citizens, that those tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

But the Sacred Congregation, on Wednesday, 3 April 1878, responded: "As regards Judges, let him recur in particular cases. - As regards advocates, let the responses already given to the Bishop of Southwark be given, namely Tuesday, place IV, on 22 May 1860, to the DOUBT: whether a Catholic advocate can defend the causes of the party brought to trial, against an actor seeking dissolution of the bond? The Response was: 'Provided that it is established to the Bishop concerning the probity of the advocate, and provided that the advocate does nothing which deflects from the principles of natural and ecclesiastical law, it can be tolerated.' And to the other DOUBT: whether it is licit to act the parts of advocate and actor, when the end of the lawsuit is simple separation, without any sentence drawing with itself the nullity of matrimony? The Response was: 'Provision has been made in the preceding'; and on Wednesday, 19 December of the same year: 'provided the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and table, and provided the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics, in that forum, act the parts of actor and advocate, and provided just causes of separation are present, in the judgment of the Bishop; and if besides he has anything of doubt, let him recur, setting forth all the circumstances and dispositions of the law.' J. Velamie, Notary of the Holy Roman and Universal Inquisition."²

2. Letter to all Ordinaries in French territory: "After the recently restored laws of divorce among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely whether it would be lawful for lay judges in causes concerning the separation of spouses to declare law, whether concerning the bond or concerning habitation only; whether for advocates and procurators to conduct causes of this kind before lay judges; whether for those to whom by law it pertains to appoint the official defenders, as they call them; finally, whether for syndics, commonly maires, to pronounce divorce.

"The Most Eminent Fathers, General Inquisitors together with me, after the matter had been maturely weighed, on Thursday, place IV, on 25 June 1885, judged that it should be decreed thus:

"Considering the most grave adjuncts of things, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes in France without being held to resign their office, provided they openly profess Catholic doctrine concerning matrimony and concerning matrimonial causes as pertaining to ecclesiastical judges alone, and provided they are so disposed in mind, both concerning the value and nullity of marriage and concerning the separation of bodies, about which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or excite one contrary to divine or ecclesiastical law; and in doubtful or more difficult cases, let each approach his Ordinary, direct himself by his judgment, and, insofar as there is need, recur through his mediation to the Apostolic Penitentiary."

"The Most Holy Father held this decree ratified; and therefore it is made known to all Archbishops and Bishops in France for their norm, by these letters which otherwise are not to be published. R. Card. Monaco."

3. Decree for excluding false interpretations of the preceding Letter:

"By some Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: 'In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in French Territory concerning the law of civil divorce, it is decreed thus: Considering the most grave adjuncts of things, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes in France without being held to resign their office'; it added conditions, of which the second is this: 'Provided they are so disposed in mind, both concerning the value and nullity of marriage, and concerning the separation of bodies, about which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or excite one contrary to divine or ecclesiastical law.' It is asked:

I. 'Whether the interpretation diffused throughout France and also printed is correct, according to which the judge satisfies the aforesaid condition who, although some matrimony is valid before the Church, entirely abstracts from that true and constant matrimony, and by applying civil law pronounces that there is place for divorce, provided he intends in mind to break only the civil effects and only the civil contract, and the terms of the pronounced sentence regard only those things? In other terms, can the sentence thus passed be said not to be contrary to divine or ecclesiastical law?

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

III. 'After divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior matrimony is valid before the Church and the other party is living?'

"Thursday, place IV, on 27 May 1886. In the General Congregation of the Holy Roman and Universal Inquisition held before the Most Eminent and Most Reverend Lords, Cardinals of the Holy Roman Church, General Inquisitors, the above-written doubts having been proposed, and the Vote of the Lord Consultors having been had beforehand, the same Most Eminent and Most Reverend Lords ordered that response be made: To the first, second, and third doubt, Negatively.

"On the same weekday and day, report having been made concerning these things to Our Most Holy Lord Pope Leo XIII, His Holiness approved and confirmed the resolutions of the Most Eminent Fathers. Jos. Mancini, Notary of the Holy Roman and Universal Inquisition."

It seems useful also to add these decisions of the S. PENITENTIARY:

1. Response to a certain Bishop of Italy: "Most Reverend Lord. I have reported to the Eminent Major Penitentiary what you write concerning a certain Syndic of your diocese, who by force of his office would have to assist at the civil matrimony of someone already bound by another matrimony celebrated in the face of the Church; and I must, at the command of the aforesaid Eminent Penitentiary, signify to you that the aforesaid syndic can by no pact furnish his work to an act which is so greatly opposed to the sanctity of matrimony. Therefore, whatever the circumstances of the case may be, he ought altogether to deny his assistance, even though it would happen that for this reason he would be compelled to resign his office.

"From the S. Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the S. P."

2. Instruction to the Bishops of Italy, of 29 March 1885.

Q. Whether a CIVIL OFFICIAL can both assist at matrimony which they call CIVIL, and prepare and draw up the legal instrument of the same matrimony, although true matrimony did not precede, indeed although there is suspicion or even certainty that it will by no means be celebrated before the Church?

"R. It can be tolerated, provided civil officials in drawing up acts of this kind intend to exercise a merely civil ceremony, and perform or advise nothing against the sanctity of matrimony and the necessity of contracting it before the Church; indeed let them exhort to contracting it before the Church herself, having before their eyes the most holy laws of our religion and the letters of Benedict XIV, Redditae sunt Nobis, concerning which, for removing scandal, let them admonish the contracting parties. - But as regards the cases in which it appears that the faithful, approaching the civil ceremony, are badly disposed, and are not going to celebrate matrimony, which regularly ought to have been premised, before the Church, but are going to persist in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by ST. ALPHONSUS DE LIGUORI (Lib. 2, tr. 3, cap. 2, dub. 5, art. 3), concerning cooperators."³

From these things you will resolve: - 1. Matrimonial causes look only to the ecclesiastical forum, and therefore cannot, unless the Church permits this, be brought to the civil forum; thus from the constant doctrine of the Church.

2. The Church indeed permits, in various regions, that causes of this kind be treated in the civil forum, but always under the condition that nothing be done which is contrary either to divine or to ecclesiastical law.

3. Where legitimate and canonical causes of divorce are had (cf. n. 2123), spouses can seek separation of habitation and goods, advocates can promote it, and judges can pronounce it. Nor indeed is it licit for spouses to bring the cause to the civil forum before it has been defined by the ecclesiastical judge, since it looks to this judge alone to judge whether sufficient motives of separation are present. Nevertheless, if the spouses, the ecclesiastical judge having been passed over, present themselves to the civil judge, this judge can, on account of grave reasons, know their cause, and, the motives being just, pass a sentence of separation.

4. Divorce as regards the bond of matrimony contracted only civilly can be both sought and pronounced in the civil forum, as is clear. The same must be said concerning matrimony indeed before the Church, but invalidly contracted, provided that the sentence of the ecclesiastical forum concerning the invalidity of the matrimony has preceded.

5. The sentence of divorce by which the bond of a validly contracted matrimony is declared dissolved can neither be sought by spouses nor promoted by advocates. For actors in such a cause seek a thing manifestly unjust and impious. - Nor is it licit for the judge to pronounce a sentence of divorce, even if, while he pronounces it, he intends to abstract from true matrimony and to break only the civil contract, nor do the terms of the pronounced sentence regard anything else.

But whether this is licit if he openly manifests this mind of his and professes the true doctrine of the Church concerning matrimony, there are not lacking those who still move controversy. But to us it seems that it must altogether be denied. The reason is that the sentence of the judge, as regards its being and as regards its effects, depends in no way on his intention or on the declaration of intention, but on the law which he applies. Whence a sentence of divorce, whether the judge wishes it or not, is of itself, not otherwise than the law of divorce itself, evil and iniquitous, and it furnishes help and support to iniquity.

6. Whether a civil official can join by civil rite persons if one of them or each is already bound by the bond of true matrimony, there is not yet one opinion of all; nevertheless, from the above-cited document of the S. Penitentiary, it seems to be denied. But he can, on account of most grave reasons, assist at the civil matrimony of those who are held to be badly disposed, even if he foresees that matrimony will not be celebrated before the Church.⁴

267. • A matrimony validly celebrated makes the spouses one thing and obliges them to live together perpetually in communion of dwelling, table, and bed. For without a partnership of life of this kind, the fulfillment of conjugal duties becomes impossible. Nevertheless, the common life between spouses is apt to be dissolved or to cease in various ways, legitimately or illegitimately, perpetually or for a time, totally or partially. Already above at nn. 11-14 we spoke concerning the diverse cases in which the matrimonial bond itself can be broken. But, the conjugal bond remaining, there can be place for separation of the spouses on account of causes admitted by the Church herself; and besides, in many modern nations there is in force the most evil law of civil divorce. Therefore, so that the steward of souls may know clearly what he ought to do both toward spouses who seek to be separated from one another or have already departed, and toward those who wish to have recourse to civil divorce or have already obtained it, we shall treat in two distinct articles:

1. concerning the separation of spouses.

2. concerning civil divorce.

268. • I. A legitimate cause of separation is necessary.

a) "Spouses must preserve the communion of conjugal life, unless a just cause excuses them." (Can. 1128.)

b) Just causes of this kind admit great variety, and judgment concerning the sufficiency of the cause differs much according as there is question of perpetual or temporary separation, of total or partial separation.

269. • II. Causes of perpetual and total separation.

a) First of all, adultery of the other spouse.

"On account of adultery of the spouse, the other spouse, the bond remaining, has the right of dissolving the communion of life, even perpetually." (Can. 1129, § 1.)

1. The reason is that, by breaking the promised fidelity, the adulterer has lost every right in relation to the other party with respect to matrimonial duties.

2. But in order that adultery confer such a right of separation, it must be:

1. formal: i.e., committed knowingly and freely.

2. consummated by copula, even onanistic.¹ Sodomy with a person other than the wife and bestiality are equated with adultery. For the reason of the injury inflicted is equal in all these cases.

¹ Cf. Vermeersch-Creusen, cited work, t. II, n. 440, 2, b. - Capello, cited work, n. 826.

On the contrary, immodest acts, even grave ones, do not suffice, but without copulation.

3. morally certain. For in this matter physical certitude is almost never had.

4. that to which the other spouse did not consent. (Can. 1129, § 1.)

5. that to which the other spouse did not give cause. (ibid.) He is judged to give cause to adultery who deserted his wife, or who often omitted to render the conjugal debt.

6. not condoned expressly or tacitly. (ibid.) For if the fault of the adulterous party has been freely condoned by the spouse, now the innocent spouse by the very fact has renounced his or her right of departing.

"Tacit condonation is had if the innocent spouse, after having been made more certain concerning the crime of adultery, has dealt with the other spouse voluntarily with marital affection; but it is presumed, unless within six months he or she has expelled or deserted the adulterous spouse, or has made a legitimate accusation." (Can. 1129, § 2.)

7. not mutual. (Can. 1129, § 1.) For the crime of one is compensated by the crime of the other.

b) Mutual consent for embracing religious life or for receiving sacred orders.

Nevertheless, from the law of the Code, dispensation of the Holy See is required. (Can. 542, 1°; can. 987, 2°.)

270. • III. Causes of total but not perpetual separation.

a) If the other spouse has given his or her name to a non-Catholic sect;

b) If he or she has educated the offspring non-Catholically;

c) If he or she leads a criminal and disgraceful life;

d) If he or she causes grave danger either to soul or to body for the other;

e) If by cruelties he or she renders common life too difficult;

f) And other things of this kind. (Can. 1131, § 1.)

"In all these cases, when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a certain or uncertain time, the innocent spouse is not obliged to this except from the decree of the Ordinary or when the time has elapsed." (ibid., § 2.)

271. • IV. Causes of separation from the bed only, whether perpetual or temporary.

a) It is licit to make a separation from the bed, even perpetual:

1. From mutual consent on account of a grave cause.

2. As often as the other spouse is not bound to render the debt.

b) Such a separation is necessary:

When the conjugal debt cannot be rendered and use of the common bed introduces proximate danger of sinning.

272. • V. By what authority separation ought to be made.

a) If there is question of embracing the religious or clerical state, dispensation of the Holy See is always required, as was said above at n. 269, b.

b) If separation is made on account of adultery, the sentence of the Ordinary is required if it is not public; otherwise it can be made by proper authority.

c) If separation is made on account of the motives enumerated above at n. 270, it must be made by the authority of the Ordinary. Nevertheless, it can be made also by proper authority, if those causes are certainly established and there is danger in delay. (Can. 1131, § 1.)

S. Th., Suppl., q. 62.

963. Cohabitation, or the partnership of common life, is the other obligation to which spouses of themselves are bound from justice, and without which it is morally impossible to fulfill the offices pertaining to the individual custom of life, of which therefore it is an integral part. Of itself it comprises the partnership of bed, table, and roof.

964. Principle I. Spouses must preserve the communion of conjugal life, unless a just cause excuses them. - So can. 1128.

This is clear from the very nature of marriage, and from the ends of matrimony, which require an individual and inseparable common life. Hence it is read, Gen. II, 24, and Mt. XIX, 5: A man shall leave father and mother, and shall cleave to his wife; and I Cor. VII, 10: To those who are joined in matrimony, I command, not I, but the Lord, that the wife depart not from her husband.

Hence: 1° Neither of the spouses can depart, against the will of the other, for a long time, unless just causes are present, namely on account of the public good, or for feeding or protecting the family, or for avoiding damage.

2° If the husband must remain elsewhere for a long time, he is bound, if he conveniently can, to bring the wife there so that she may cohabit with him, or frequently to visit her. Similarly the husband of himself would be bound to accompany the wife, if necessity compelled her to change domicile.

3° Regularly the wife is bound to follow the husband changing domicile, even if he changes without a just cause, provided the cause is not base; indeed even if he departs far away and is going to remain there for a long time; - unless thus the wife would be exposed to grave danger of life or of very grave detriment, whence she would not be bound to follow a husband wandering here and there, unless she herself, before matrimony, knew that the man was a wanderer.

4° Communion of bed is to be understood as that which is required from the very nature of matrimony; whence it is not necessarily to be taken in the stricter sense, although it is generally so in use, but the partnership of the bedroom suffices, a distinct bed being used. Indeed it can subsist if the man and woman have distinct bedrooms joined to one another, although in practice, because of inconveniences easily arising, this use is less to be approved, as harmful to the union of minds.

965. Principle II. Divorce from bed and habitation can be licit for just causes, such as adultery of the spouse, grave danger of soul or body, and mutual consent. - This is certain from the definition of the Council of Trent, sess. 24, can. 8, against the Protestants who, while admitting dissolution of the bond on account of adultery, reject all causes of separation.

The principle is clear both from the words of Christ, who declares that this is sometimes licit (Mt. XIX, 29), and explicitly indicates adultery as a legitimate cause of separation (Mt. V, 31; XIX, 9), and from the Apostle, who supposes that this can be done for a legitimate cause (I Cor. VII, 11 sq.), and from the law (can. 1128-1131), and finally from the fact that cohabitation does not pertain to the essence of matrimony, but only to its integrity.

Separation can be made in perpetuity or for a time, totally or partially.

966. The first cause of separation is adultery of the spouse, according to can. 1129, § 1: "On account of adultery of the spouse, the other spouse, the bond remaining, has the right of dissolving the communion of life, even in perpetuity; unless he has consented to the crime, or given cause for it, or expressly or tacitly condoned it, or himself also has committed the same crime." This Christ himself explicitly declared, Mt. V, 32: Everyone who shall put away his wife, except on account of fornication, causes her to commit adultery (cf. XIX, 9). The reason is that, by breaking the promised fidelity, the adulterer has lost every right toward the other party as to conjugal offices.

But that it may confer the right of separation, adultery must be formal, consummated, morally certain, one to which the other has not consented or given cause, and neither condoned nor mutual.

It must be:

1° formal, that is, committed knowingly and freely;

2° consummated by copula itself with insemination, even if performed onanistically, to which are equated sodomy properly so called and bestiality, in which there is an equal reason of injury inflicted; but impure acts, even grave ones, without copulation do not suffice;

3° morally certain, so that it is truly established concerning it; otherwise the other cannot be deprived of the right of the one possessing, although physical certitude is not required, which in such matter is obtained with difficulty;

4° one to which the other spouse has not consented or given cause, as is explicitly said in can. 1129, § 1: he is considered to give cause who has deserted the wife or has rather often omitted to render the conjugal debt;

5° nor condoned: for if it has been freely condoned by the innocent spouse, the latter by that very fact has renounced his right of departing. But condonation can be made expressly or tacitly; "tacit condonation is had if the innocent spouse, after he has been made certain concerning the crime of adultery, has spontaneously conversed with the other spouse with marital affection; but it is presumed, unless within six months he has expelled or left the adulterous spouse, or has made a legitimate accusation" (can. 1129, § 2);

6° nor mutual: for the crime of one is compensated by the crime of the other; but it makes no difference which of the spouses first or more often has perpetrated adultery.

Let it be noted that the husband is not bound to dismiss an adulterous wife, unless it were the only means for her amendment, or for avoiding scandal lest he be thought a favorer of the offense because he retains her, nor are greater evils to be feared; but the wife probably is never bound to dismiss the husband.

967. The second cause of separation can be grave danger of soul or body, such as arises from the circumstances enumerated in can. 1131, § 1: "if the other 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 creates grave danger either of soul or of body for the other; if by cruelties he renders common life too difficult, these and other things of this kind are so many legitimate causes of departing for the other spouse, by authority of the local Ordinary, and also by one's own authority, if they are certainly established and there is danger in delay."

Concerning these things it must be noted:

1° "In all these cases, when the cause of separation ceases, the custom of life is to be restored. But if separation has been 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 elapsed" (can. 1131, § 2).

2° Rarely, on account of supervening heresy or apostasy, is separation expedient, from which greater damages often are to be feared for the spouses or for society; unless there were grave danger to the faith for the wife or offspring (Tit. III, 10).

3° Danger of soul is incitation or induction to grave sin, with grave danger of consent, especially if otherwise it cannot be removed (Mt. XVIII, 9; Lk. XIV, 26); but the mere occasion of sin does not suffice.

4° Danger of body can arise on account of the fury of the other party or from contagious disease, in which case separation from bed is licit, as was said in n. 961.

5° Cruelties are had if the spouse treats the consort cruelly, as if a husband pursues the wife with mortal hatred, prepares snares against her life, seriously threatens death or mutilation; but beating does not suffice, unless it is very grave and immoderate and repeated several times, or to be repeated in the future.

6° Troublesome cohabitation from continual quarrels and brawls, denial of food, abandonment in sickness, great neglect in administering goods, reduction to the condition of a more vile servant, etc., can also be a cause of separation, because thus the safety of soul and body is endangered.

968. The third cause of legitimate separation can be mutual consent: whether as to bed or as to habitation, whether for a time or in perpetuity.

From the words of Christ it is clear that this is licit unto perfection: Everyone who shall leave house... or wife for my name's sake, shall receive a hundredfold and shall possess eternal life (Mt. XIX, 29).

Hence: 1) If matrimony has not been consummated, each spouse has the right of choosing a more perfect state; indeed by solemn religious profession itself a ratified matrimony is dissolved, as was said n. 818, B.

2. Nevertheless from current law, for entering religion or that the man may be able to receive sacred orders, besides the consent of the other party an apostolic dispensation is required (can. 542 and 987); a fortiori if the matrimony has been consummated.

3. Perpetual separation from roof requires the intervention of the bishop, but not temporary separation, which is licit for a proportionate cause, as was said n. 964.

4. Separation from bed, by mutual consent, can be made by one's own authority, but regularly it is not expedient except for a time, namely because of danger of incontinence, as the Apostle warns, I Cor. VII, 5: Do not defraud one another, except perhaps by consent and for a time, that you may give yourselves to prayer (or if another just cause exists); and return again to the same thing, lest Satan tempt you because of your incontinence.

969. Corollaries. - 1. Separation as to habitation, since it is of the external forum, regularly cannot be made by private authority or by the counsel of a confessor, but requires the intervention of public authority; whence a wife even maliciously deserted is not considered legitimately separated unless she has obtained separation from an ecclesiastical judge (comm. int., July 14, 1922); on the other hand separation as to bed is of itself hidden, and therefore can be instituted by private authority. Particular statutes are especially to be attended to; but from common law:

a) If it is a matter of embracing the religious or clerical state, a dispensation of the Holy See is always required, as was said in the preceding number;

b) If separation is made on account of adultery, a sentence of the Ordinary is required, unless the adultery is certain and notorious, in which case it is licit to depart by one's own authority.

c) If separation is made on account of other motives, it must be made by authority of the Ordinary, and only by one's own authority if they are certainly established and there is danger in delay (can. 1131, § 1); therefore, when the delay has ceased, recourse must be had to the Ordinary. But separation is to be decreed in administrative form, unless the Ordinary establishes otherwise ex officio or at the instance of the parties, and the same form is also to be observed in the second grade (comm. int., June 25, 1932).

2. The innocent party preserves the right of recalling the dismissed party, provided the other party, with the express or tacit consent of the former, has not undertaken a state contrary to matrimony (can. 1130); nevertheless the other party would be excused from returning if he justly feared that grave cruelties would be inflicted upon him.

I. The doctrine has been defined by Trent, can. 8, that the Church does not err when, for many causes, it decrees that separation between spouses as to bed, or as to cohabitation, can be made for a definite or indefinite time.

In this matter it must be observed that those causes are reduced to three genera, that is, mutual consent, grave danger of soul or body, and crime. Crime indeed is distinguished as threefold, namely, adultery of the other party, apostasy from the true religion, whether through unbelief or through heresy, and seduction to sin, so that the one who is seduced is placed in danger of sinning. But this third returns to the second of the three genera. Moreover the first of these crimes is a cause of separation proper and intrinsic to marriage; but the other causes are common to other societies, and therefore, as it were, extrinsic to marriage. Nevertheless, unbelief, which is also called spiritual fornication, is especially against the good of marriage, which is offspring to be educated for the worship of God (q. LXII, a. 1, ad 3). Likewise, as regards the first crime, one act suffices, and it is the reason for perpetual separation, so that, even if the sinning spouse comes to his senses, the innocent party is not bound to return, unless he himself should fornicate (c. Ex literis, De Divortiis), but can, for example, vow perpetual continence or enter religion. But in the other crimes a certain custom is required, and they are causes of themselves temporal; when these cease, the innocent party is bound to be reconciled to the penitent (c. De illa, De Divortiis; cf. St. Thomas, l. c.). Then it must be observed that separation as to bed, since it is a private matter, can be made by one's own will; but separation as to habitation, since it is a public matter, ought to be made by the judgment of the Church (c. Porro, De Divortiis).

II. Now, that separation as to bed or habitation can lawfully be made for these causes, while the conjugal bond remains, is proved: 1. because there is no repugnance that, while dominion is retained, the use of the thing, or the proximate right to use, should be lost for some causes, whether from one's own will or from the disposition of law; 2. because from the Gospel we are taught that divorce of this sort can be made for these causes. For divorce which is made from mutual consent is indicated as lawful by those words of Christ, Matt. XIX, 29: Everyone who has left house ... wives or children, etc., will receive a hundredfold and will possess eternal life. Cf. the title de Conversione coniugatorum. The Apostle supposes that divorce from the cause of crime is lawful in 1 Cor. VII, 11, where, as we have already noted, there is discourse about departure for a just cause. Christ proves the cause of fornication, Matt. V, 32, if the sentence of Christ is taken according to the more common interpretation, where the dismissal which is granted is not as to the bond, because he who marries the dismissed woman commits adultery; but some dismissal is granted on account of fornication. For he who on account of it dismisses his wife is not imputed the crime of adultery which his wife is afterward going to commit, as it is imputed to him who dismisses an innocent woman; therefore he does not sin, but acts lawfully. Moreover the dismissal is not only separation as to bed, but also as to habitation. Paul indicated generally the cause of apostasy from the faith with danger of the perversion of the other party in Titus III, 10. Cf. c. ult., De Convers. Coniug. and c. 2, De Divortiis. Christ proves the cause of seduction to sin in Matt. XVIII, 9: If your eye scandalizes you, pluck it out and cast it from you, which reason proves is to be understood also of a spouse. Natural reason proves the cause of grave bodily danger, such as danger of life, mutilation, and frequent intolerable cruelties; cf. c. 13, at the end, De Restitutione Spoliatorum.

Accordingly this doctrine is not new, both because it is handed down in the Gospel and by the Apostle, and because it is handed down by the Fathers, as can be established from their testimonies cited above. The same is confirmed by canon law and the continual practice of the Church.

III. Nor is it opposed to the Gospel, which mentions one cause, fornication, if that interpretation is true. For that mention is not exclusive, since other causes are sufficiently indicated elsewhere in the Gospel; but that cause alone is explicitly indicated because Christ wished to signify the proper and intrinsic cause, and one which is also perpetual, since the other causes are not of themselves perpetual, but when they cease, the spouses are to be recalled. Nor is it opposed to the moral law that the bond remains after separation has been made; for 1. the grace of God is always present, by which this loss can be patiently tolerated; 2. if the evils which can proceed from the perpetuity of the bond and from its dissolution are compared, those which would arise from dissolution are much greater, as being against the greater good, that is, of family, society, religion, and against the good of the Sacrament. Cf. Thesis XXIII.

Seek the rest among the canonists.

Canon XXXII. The widow of a presbyter or deacon, if she has remarried anyone, is to be driven from the Church so far until she is separated from the illicit union, her husband also being struck with similar severity until correction.

It is manifest that the return to the monastery prescribed for these girls comprehends separation from a spouse; therefore these fathers wish that the fault of a contracted marriage be healed by separation. Cf. Canon XIX of the Council of Orleans, A.D. 549.

The discourse concerns Christian women who, from Judaism, were converted to Christ after nuptials. Because of the danger of perversion it is prescribed that, unless the husband is converted, they are to be separated, and thus power is given to the Christian woman to enter other nuptials. Indeed, by reason of the same danger, the preceding canon, which is LXII, had decreed that "there shall be no further communion for Hebrews transferred to the Christian faith with those who still remain in the old rite, lest perchance by participation with them they be subverted." But in the third Lateran Council under Alexander III, Canon XXVI, Christians are excommunicated who presume to dwell with Jews or Saracens, under pretext of feeding or educating children of that people, or for service, or from any other cause.

Canon V. If anyone has held his stepson or stepdaughter before the bishop for confirmation, let him be separated from his wife and not accept another (from Fulbert of Chartres, Epistle 33).

The discourse is not about dissolution of the bond, but about separation of the spouses, which, when fornication intervenes, can be done by the innocent party, the other unwilling; but this case being set aside, it is said that it cannot be done except by the consent of both, and indeed on account of the service of God, for example that the man may receive orders, or that both may profess chastity. The mention of this final cause placed in the service of God sufficiently shows that Boniface had before his eyes only separation of spouses, not dissolution of the bond by which power for other nuptials is made.

Namely, he who has slept with the sister of his wife shall no longer have relations with his wife, or shall be separated from her (cf. Canon II), nor can he accept that sister after the death of the wife; which indeed, even if that disgrace had not intervened, would have been forbidden. Consequently, as a penalty of the sin, nuptials are altogether forbidden to the adulterers even after the wife's death. Namely, incest is an impediment impeding or prohibiting any nuptials.

Response XVIII. Concerning a woman separated from her husband, if her husband in a foreign province was falsely thought dead, in the epistle of blessed Pope Leo directed to Nicetas, Bishop of Aquileia, it is contained thus: "Since therefore through the calamity of war," etc.

Canon XII. If anyone has held his stepson or stepdaughter before the Bishop for confirmation, let him be separated from his wife and not accept another. Similarly, let a woman (who has admitted the same thing) not accept another.

Canon XXXI. It was also told to us that certain women, some carelessly, some also fraudulently, in order to be separated from their husbands, held their own sons before bishops for confirmation. Whence we judged it fitting that if any woman has held her own son before a bishop for confirmation, through carelessness or through some fraud, on account of her fallacy or on account of the fraud, as long as she lives let her do penance, yet let her not be separated from her husband.

Namely, if he has attempted to lead another, existing as a transgressor, let him return to the former wife, from whom he was separated. It proceeds:

Chapter I. We command bigamous presbyters and deacons, and husbands of widows or repudiated women, to be separated, and, after penance has been completed, to return to their order. And those who are unwilling to dismiss illicit marriages ought to be degraded according to the institutes of the canon. But we command the separated women to be returned to their parents; and because they were not legitimate, if they wish, let it be lawful for them to be married.

Malice, namely, consists in this, that a spouse knowingly receives his own child from the sacred font to this end, that he may be separated from the other spouse. The Pontiff does not wish this fraud to support the same one; accordingly he denies that they are to be separated.

Titius and Titia, Catholic spouses, led a rather prosperous life for two years. Titius, however, then began to cultivate evil companions and indulge in drunkenness. He dissipated in drunkenness not only his own money but also that extorted from his wife by threats and blows. Titia patiently endured the evils for some months; afterwards, lest she be overwhelmed by miseries, she secretly fled with her child and in another region sought a livelihood for herself and the child by the labor of her hands. Caius, a priest, doubted whether he could absolve her when she confessed the aforesaid things in the sacred tribunal. Hence it is asked:

1. What are full and partial divorce?

2. For what causes is it lawful to institute a partial divorce?

3. Is it lawful for a partial divorce to be made by private authority?

4. What is to be said of the case?

1. What is divortium plenum and semiplenum?

Dissolution of the bond of marriage is called divortium plenum; separation a toro et mensa, or judicial separation, divortium semiplenum.

2. For what reasons may judicial separation be obtained?

By ecclesiastical law perpetual judicial separation may be obtained for adultery, heresy of the other party, and by mutual consent for a good purpose if there is no danger of incontinence. Temporary separation is allowed on account of serious danger to soul or body.¹

1 Manual of Moral Theology, vol. ii, 281.

3. Is this separation allowed by private authority?

When adultery is certain, complete, formal, and not condoned, the innocent party may separate on his private authority. This may be done in the other cases if there is danger in delay. Regularly, and especially if the sufficiency or reality of the cause is uncertain, the judgment of the bishop should be invoked.

4. The case. It would hardly be advisable or safe to tell people in the position of Titia that they are free to separate from a drunken and cruel husband. Such a doctrine would probably lead too many to exaggerate their own woes and to think that they were justified in leaving their husbands. Still in the circumstances mentioned in the case, Caius may absolve Titia without requiring her to go back to her husband, or to consult the bishop. Before the fact it might be difficult to countenance such a proceeding as that of Titia, but when she has done it in more or less good faith it may be tolerated by the confessor.²

2 Génicot, vol. ii, n. 258.

Titia, a Catholic, asks a confessor whether she is bound to return to Titius, her husband, in the following circumstances. Titius had always been so greatly devoted to sexual intercourse that throughout their married life he sought the debt almost every night and sometimes twice or three times in the same night, which he also exacted from his wife by blows. Titia conceived such an abhorrence toward the marital debt and toward Titius that she obtained separation from bed and board because of her husband’s cruelty; he was also committed to an asylum because of insanity caused by sexual excess. After a year, having recovered his health, Titius left the asylum and immediately asked his wife to return to him. Titia, still experiencing the same invincible abhorrence as before, is unwilling to return to him unless she is bound to do so under grave sin. Hence it is asked:

1. What is a partial divorce, and for what causes is it permitted?

2. Can such a divorce be sought in civil courts?

3. When the cause of divorce ceases, is the innocent party bound to return to married life?

4. What is to be said of the case?

The first question was answered above, p. 266 f. and the second, p. 268.

3. When the cause for separation ceases is the innocent party bound to return to marital life?

There is question here only of those causes which give a right to temporary separation between married people, and the general rule is that after the cause of separation has ceased, the party who took advantage of it to separate must return again to married life. However, the following words of St. Alphonsus have a practical bearing on the case before us: “ The Salmanticenses note, no. 40, with Dicastillo, that in practice it can scarcely be believed that the danger ever ceases if the spouse has been insane and furious, or so prone to anger that danger of harm has often occurred and sometimes he has wounded his wife.”¹ 4. The case. The feeling of disgust which Titia feels for her husband would not of itself justify her in refusing to return to him. But if we consider the circumstances of the case, the tendency of the husband to excess, the probability that this tendency will again cause cruelty to his wife and perhaps bring on insanity again, Titia does not seem to be under the obligation of returning to her husband. The words of Dicastillo quoted by the Salmanticenses are appropriate: “ I cannot, however, fail to see some of these causes which scarcely can be believed to have ceased entirely. Mad and furious, how easily can he again become mad?”

1 Theol. Moral., lib. vi, 971.