NIHIL OBSTAT: Fr. Ferdinandus Mayer, O.F.M. Conv., Censor Librorum.
Grateful acknowledgment is made by the author to The Reverend James P. Kelly, J.C.D., Vice-officialis of the Tribunal of the Archdiocese of New York, for permission to make use of his lecture on “Separation and Civil Divorce” published in THE JURIST, April, 1946, and to The Right Reverend Monsignor William J. Doheny, C.S.C., J.U.D., Auditor of the Sacred Roman Rota, for permission to use portions of his “Canonical Procedure, Volume II” in the preparation of this paper.
Anna confesses, among other things, that she has left her husband because of constant quarrels with her mother-in-law, with whom they had been living. She explained that she had begged her husband over and over again to try to get a home of their own, but he always answered that that was absolutely impossible at present.
In the same way Catherine comes, saying that she has left her husband because she has a suspicion that he has committed adultery, and also because he often indulges in drink.
When Simplicius inquires if they are willing to return to their husbands, both of these women reply that they cannot live peaceably with their husbands because of the circumstances they have related. So after a few words of consolation and admonition Simplicius gives absolution to each of them.
James has obtained a civil divorce from his wife Bertha, and in fact without consulting the Bishop. Afterward he began a suit before the diocesan tribunal for a declaration of nullity of his marriage, which case is still pending. Meanwhile, confident that his case will turn out favorably, he has begun to keep company with Camilla, whom he intends to marry when he is freed from his marriage with Bertha. James mentions all these things in confession to Father Simplicius, From his answers to various questions, Father Simplicius decides that James acted in good faith both in obtaining the divorce and in beginning his courtship of Camilla. Therefore after a brief admonition he absolves him and sends him away in peace.
What is the obligation of married couples with regard to living together?
Is separation ever permissible, and what are the lawful reasons for it?
Who is qualified to effect a legitimate separation?
What is to be said of the way Father Simplicius acted in the abovementioned instances?
The Code of Canon Law, in Canon 1128, states the general principle and official teaching of the Church with regard to the obligation of conjugal life: “Conjuges servare debent vitae conjugalis communionem, nisi justa causa eos excuset.” “Married couples must preserve a community of conjugal life. unless a just cause excuses them.” With its characteristic brevity, the Code thus summarizes a wealth of doctrine to be found in Holy Scripture, the writings of the Fathers, the pronouncements of the Church in Council, and in the teachings of theologians. From it we learn immediately that (1) there is a serious obligation on the part of husbands and wives to live together, since the Code uses the words servare debent ; (2) that conjugal life involves a communio — a community of life, mutual participation, an equal privilege or enjoyment in common with each other, as the lexicon defines it – which implies mutual rights, duties, privileges and obligations; and (3) that a just cause may at times exist which excuses from the obligation.
The modern tendency seems to be to regard marriage as a private affair. Many people nowadays, and among them many Catholics, apparently are of the opinion that they alone are concerned in the choice of a mate, the conduct of their married life, separation and divorce, and that their own happiness and convenience alone are to be considered. That, in my humble opinion, is one of the underlying causes for so many mixed marriages, attempted marriages in violation of the law of the Church, the wide-spread practice of birth control, separations and divorces.
I hasten to say that this was not a priest of this diocese, and to add that such statements have not been made before our tribunal. Here the custom seems to be rather that people act on this principle, but do not bother to seek the priest’s advice about it.
Since we so frequently encounter this application of modern philosophy, so utterly contrary both to the traditional concept of Christian marriage and to the doctrine of the Church, it may be well to remind ourselves briefly of the Church’s teaching on the phases of conjugal life embodied in our present case.
On this point of the origin and nature of Holy Matrimony and the position of the individual husband and wife, let us recall the words of the late Pope Pius XI, in his Encyclical on Christian Marriage.
“Let it be repeated as an unchanged and inviolable fundamental doctrine that matrimony was not instituted or restored by man but by God; not by man were the laws made to strengthen and confirm and elevate it but by God, the Author of Nature, and by Christ our Lord, by Whom nature was redeemed, and hence these laws cannot be subject to any human decrees or to any contrary pact even of the spouses themselves. This is the doctrine of Holy Scripture, this is the constant tradition of the universal Church, this is the solemn definition of the sacred Council of Trent, which declares and establishes from the words of Holy Writ itself that God is the Author of the perpetual stability of the marriage bond, its unity and its firmness.
“Yet although matrimony is of its very nature of Divine institution, the human will, too, enters into and performs a most noble part. For each individual marriage, inasmuch as it is a conjugal union of a particular man and woman, arises only from the free consent of each of the spouses; and this free act of the will, by which each party hands over and accepts those rights proper to the state of marriage, is so necessary to constitute true marriage that it cannot be supplied by any human power.
“This freedom, however, regards only the fact whether the contracting parties really wish to enter upon matrimony or to marry this particular person; but the nature of matrimony is entirely independent of the free will of man, so that if one has once contracted matrimony he is thereby subject to its Divinely made laws and its essential properties.
Cohabitation under the same roof is the normal, natural and well-nigh necessary means for attaining the ends for which marriage was instituted. It is not absolutely essential to marriage, since there can be valid marriage without it, but it does certainly pertain to what theologians call the integrity of marriage. Hence, unless a just cause excuses – which is obviously the exception rather than the regular state of affairs -, both parties are bound in justice, by an obligation inherent in the contract, to live a common life with each other, and each party has a strict right in justice to demand this.
Theologians usually speak of a “communio mensae, tori et cohabitationis.” Community of table – or board, as we more commonly express it in English – is a phrase used in both a literal and a symbolic sense. Sharing the same dining table is the normal way of partaking of food in common; hence the phrase has a genuine literal meaning. But the family food is just one item of the more inclusive term “sustenance” or “necessities of life,” and by metonymy and synecdoche the word “board” is used in this broader meaning. Generally speaking, the husband has the obligation to provide the necessities of life for his wife and children, and they have the right to receive decent sustenance from him; the wife in turn normally has the obligation or responsibility of the management of things pertaining to the household, and her husband the right to her cooperation and the faithful fulfillment of her domestic duties. The specific nature of these rights and responsibilities varies with the individual family condition, social and economic j the Code simply lays down in Canon 1112 the general rule, centuries old, that unless other special provision is made by law, the wife shares the status of her husband.
“Communio tori” means community of bed or bedchamber. This does not invariably necessitate their sleeping together in one bed, normal as that arrangement is. As Cardinal Gasparri” [Card. Gasparri, De Matrimonio, vol, II, n, 1107, p. 190.]and other authorities point out, the communio tori is formally present even if they occupy separate beds or bedrooms, provided there is no restriction of access of each to the other. This freedom of access is a direct, inherent consequent of the equal right and duty of both spouses from the very beginning of the marriage with regard to acts proper to conjugal life, as Canon 1111 declares.
A fortiori, conjugal cohabitation implies community of dwelling place, at least habitually and as far as circumstances permit. The obligation to provide a family home rests primarily upon the husband, and the normal duty of the wife to follow her husband means sharing that home, wherever it may be. It is recognized that causes may exist excusing from the obligation, but in view of its importance in relation to the fundamental ends of marriage, to be truly excusing such causes must be just, i.e. proportionate to the seriousness of the obligation and to the rights of the other spouse. The obligation is, of course, from justice, by reason of the contract.
Separation can be total or partial : the Code concerns itself only with the former. It may be by mutual consent or with the consent of only one; each of these can be eitherpermanent or temporary. Under temporary separation we include that for either a definite or an indefinite period of time; e.g., as long as the cause continues to exist, which may be per accidents actually a permanent separation.
The Code, in §2 of the same Canon, goes on to explain that tacit condonation occurs if the innocent spouse, after learning with certainty of the adultery, continues to live a normal conjugal life with the guilty one; this is, moreover, presumed to have occurred if within six months after becoming certain of the crime the innocent party has failed either to dismiss or to leave the adulterous one or to make an accusation of the crime before the lawful authorities.
The adultery must be morally certain. Suspicion or even doubt does not suffice, since separation involves the denial of a strict right of the other spouse. Of course, from the very nature of the crime, proof of adultery is usually difficult. Moral certainty can be had, however, as the Rota has pointed out, from such actions and circumstances as necessarily give rise to what are technically termed violent suspicions, i.e, those that force a prudent judge to be thoroughly convinced.
The adultery must be complete and consummated. Preparatory or even incomplete actions are not enough, but if the circumstances warrant they may be taken as indications of the greater crime. We may observe that most authors hold that such crimes as sodomy and bestiality are equivalent to adultery.
The adultery must be formal, not merely material; i.e. sufficient knowledge and free and willing consent on the part of the guilty spouse must be present.
The adultery must not be permitted or approved by the innocent spouse, either explicitly by consent or implicitly by failing to prevent it when such prevention was possible.
The adultery must not be provoked by the innocent spouse, either directly or indirectly. There is some dispute among the authors as to the effect of denial of the debitum, but it appears that if the innocent spouse was culpable by frequent denial of the debitum and realized that this would lead to adultery, such action would be equivalent to provocation, and the separation should be refused.
There must not be any recrimination or compensation, which would occur if the other spouse likewise committed adultery prior to the separation.
Express or tacit condonation, as explained in Canon 1129, must not have taken place.
When all of these conditions are present, the innocent spouse has the right to separate even permanently from the adulterous one. Having separated, there is no obligation ever to take back the guilty one. But we have here a matter of strict right only; the innocent one may separate, but usually is not obliged to separate from the guilty one. Moreover, forgiveness is always possible, even after a separation has taken place. The innocent one may even ask the adulterous spouse to resume conjugal life, unless that one has, with his or her consent, entered a state of life incompatible with matrimony, such as joining a religious community. On the other hand, the guilty one, being justly asked to resume cohabitation, is obliged to return.
1, married couples may separate permanently, both freely consenting, if either one wishes to enter the religious life or if the man wishes to receive Holy Orders; and 2, temporary separation by mutual consent is permissible for any supernatural motive, or even for a serious and morally good natural reason.[12CappeJlo, op, cit., D. 825.] We merely note these without discussion, since they are beyond the scope of our present case.
if he or she causes grave spiritual or bodily danger to the other; if by cruelty he or she renders conjugal life intolerable.
Other grounds recognized by the Rota in recent cases are: implacable hatred, constant quarrels springing from deep malice or from a desire and purpose of inflicting serious harm, mental abnormality of one of the parties, malicious desertion without just provocation, the persistent and constant practice of other and other irreligious and immoral acts on the part of one of the spouses.
All such causes, the same Canon goes on, “are each legitimate grounds for the other spouse to separate by authority of the Ordinary of the place, and even on his or her own authority if they are proved with certainty and there is danger in delay. § 2. In all these cases, when the cause for separation ceases, the conjugal cohabitation is to be resumed; but if the separation has been pronounced by the Ordinary for a certain or an indefinite period of time, the innocent party is not obliged to return except by decree of the Ordinary or upon the elapse of the specified time.” The reason for these provisions is, of course, that the separation on the ground of such causes is not permanent but only temporary.
A decision of the Rota in 1928 illustrates the application of the principles. I mention it here because it affords a certain standard for comparison that may be helpful when we are consulted about a case of marital trouble.
Francis and Catherine had been married 27 years, and in the course of that time had frequent quarrels. They even separated on their own authority and were reconciled four times. Francis finally sued for separation on the ground of implacable hatred that Catherine allegedly bore toward him. Witnesses testified to the fact of frequent quarrels and to evidence of some degree of hatred, avarice, and that Catherine had used uncomplimentary and even opprobrious language in speaking to and about Francis. Also there was evidence that one source of the quarrels was Francis’ improper and suspected conduct with a servant, Julia.
Prescinding from the separation by mutual consent that is recognized as permissible for spiritual reasons or other noble motives, the law of the Church provides two ways by which either permanent or temporary separation from a guilty spouse may be legitimately effected: 1, it may be inaugurated by the innocent consort under certain special circumstances; and 2, in other cases only the proper ecclesiastical authorities are empowered to grant permission for it.
By virtue of the authority granted in Canons 1129 and 1130, an innocent spouse aggrieved by the adultery of the other consort has the right, all seven necessary conditions being verified, to effect even a perpetual separation, even without permission of the Ordinary. Likewise, by Canon 1131, the innocent consort is empowered to inaugurate a temporary separation for a just and lawful reason described in the Canon even on his or her own authority when there is moral certitude about the existence and gravity of the cause and, at the same time, real danger in the delay involved in presenting the matter to the Ordinary. These quite extraordinary powers are so extensive that there is danger of abuse in practice. The danger is that aggrieved consorts may act rashly, without the necessary certainty, accepting suspicions and rumors as facts, and that the judgment may be entirely subjective.
It is axiomatic in law that no one is qualified to be a judge in his own case. Married people experiencing difficulties, being under emotional strain, are the poorest judges of their own case. It is clear, therefore, that the Church grants this right only as an extraordinary means to protect the innocent. This is the “emergency form,” to be used only in case of necessity. In usual practice, innocent consorts should be counseled to present their cases to the proper ecclesiastical authorities for adjudication. Legitimate separation brings about certain juridical effects, and when separation is instituted by private authority its legitimacy may be open to serious question.
The same would be true of any other priest of the tribunal. The administrative process is the usual method for deciding cases of temporary separation [Response of Pontifical Commission for Interpretation of the Code, June 25, 1932. 18Canon 1573; Doheny, op. cit., p. 647.] If the judicial process is used, the Vicar General is excluded, being not authorized to adjudge cases in formal trial, whereas the Officialis is empowered to do this in virtue of his office unless the Bishop should reserve such cases to himself. The Bishop is usually free to determine which process shall be used. Likewise, the Bishop is free to delegate any priest to adjudicate these cases in his name.
When the Code speaks of the Ordinary of the place it means, in matrimonial trials, according to Canon 1964, the Bishop of the place in which the marriage was contracted, or of the place in which the defendant has a domicile or quasi-domicile, or if one party is a non-Catholic, in which the Catholic party has such canonical residence.
It will be noted that the law gives no right to the guilty consort to institute an action for separation. Separation effected by the guilty spouse is not legitimate; it is merely desertion.
It will be observed also that there is no provision in the law for separation effected by decision of a civil court. Except where there is special provision by a Concordat with the Holy See, as is the case in Italy, the civil courts are absolutely incompetent to adjudge cases of separation between baptized persons or even where only one of the parties is baptized. Notice that we speak of baptized persons, not simply Catholics. The Church has exclusive jurisdiction over the marriage of all baptized persons; the only competency of the State is in regard to the merely civil effects of the marriage of such persons.[Canon 1016; Cappello, op. cit., nn, 68 sqq.]The State does have competency, because no other authority is available, to decide cases involving the marriage of two unbaptized people, provided it does not act contrary to the Divine Law. But if one of the parties is baptized, the State has the right to decide only such matters as inheritance and succession and financial matters in general in connection with their marriage. Our Catholic lay people in general have a very serious misunderstanding on this matter, and we should do what we can to correct it. It should be impressed upon them that if the State grants a separation in a case requiring adjudication by the authority of the Church, such a separation is not legitimate.
Seeing Catholics in this country becoming infected with the errors of the modern philosophy of private judgment, separating from their husbands or wives for all sorts of reasons, going to the civil courts for “legal” separations, falling into the heresy of denying the authority of the Church in matrimonial cases,[Conc. Trid., Sessio XXIV, Can. 12: “Si quis dixe rit, causas rnatrimoniales non spectare ad iudices ecclesiasticos, A.S.”] it is evident that it is our duty as priests having the care of souls to enforce the law of the Church and to teach our people so that they will realize and accept the exclusive authority of the Church to pass judgment on matters of the separation of baptized married persons. And what has been said of civil separations applies with all the more force to the greater evil of civil divorce.
We turn now finally to the consideration of the manner in which Father Simplicius dealt with the cases proposed to him.
Anna’s case is a casualty of the housing shortage. She and her husband should have a home of their own, but his answer to her pleas for one seems to be entirely reasonable in the present state of affairs, He might have tried harder to find something, but after all he is the responsible head of the family, and this living with his mother may well be the only solution he could find just now for the problem of a dwelling place. It is proverbial that no house is large enough for two women; so the quarreling with her mother-in-law is not surprising. Many mothers feel that no woman is good enough for their son, and act accordingly toward a daughter-in-law. But constant quarrels can be a form of cruelty that becomes unbearable, and cruelty inflicted by relatives of the husband is recognized as possibly giving the wife the right to temporary separation within the provisions of Canon 1131. However, Anna has taken the legally extraordinary means of separating on her own authority, since there is no mention of her consulting the Bishop. Hence, although ‘she may be subjectively justified, objectively. the burden of proof is upon her to show that she had a just cause for separation, having exhausted all other means of obtaining domestic peace, and that there was enough danger in the delay involved in the normal procedure to warrant taking matters into her own hands. There are several variable factors in the case, and she should have been told to present the matter to the matrimonial court. Only upon her sincere promise to abide by the decision of the Bishop could she be given absolution. Otherwise, she is guilty of desertion and without sufficient purpose of amendment.
Catherine has not grounds for a permanent separation, since the mere suspicion of adultery is not sufficient to warrant it. The fact that her husband occasionally indulges in drinking is not in itself enough to justify even a temporary separation. If his drinking were excessive and his consequent actions such as to constitute a grave threat to her bodily welfare, the legal remedy is made available to her by the Church. But from her story it would appear probable that her husband occasionally sought the more pleasant companionship of the neighborhood grill in order to escape the nagging of a suspicious wife. Moreover, her unqualified refusal to return to her husband indicates her intention of permanent separation, which is unwarranted. Father Simplicius should have done more than give her an admonition and absolution. He should have impressed upon her the seriousness of harboring suspicions and the importance of making a pleasant home for her husband, and should have insisted on her return to him. If after doing all he could to change her attitude she remained obdurate, he would be obliged to withhold absolution, because of her unrepented grave sin of injustice .
Even though he is seeking an annulment, until it is granted the presumption is that his first marriage was valid and he is bound to conduct himself accordingly. That means, of course, no company-keeping. He may have been in good faith in getting the divorce, because of his ignorance of the need for the Bishop’s permission, but he almost certainly is not in good faith about the company-keeping. When he started his case before the diocesan court, according to our usual practice he would be told that if he was keeping company it must be discontinued while the suit is pending. And even if he was in good faith, Father Simplicius should know that the company keeping cannot continue because of the scandal involved, and he should insist on his sincere promise before giving absolution.
Kindliness is an admirable quality in a confessor, and one we are bound to foster for the salvation of souls. But the proper kindness in cases like these is gentleness and tactfulness in persuading such persons to turn away from a perverse attitude and encouraging them to follow the salutary doctrine of our Holy Mother the Church.
Married people are obliged, sub gravi, to live a common conjugal life.
Married people ought not to separate on their own authority, except in the rare instances provided for in the Code, and never should seek a civil separation or divorce without authorization by the Bishop.
Married people who are separated may not begin company-keeping.
Confessors should, as a rule, deny absolution to a married person who is separated from a legitimate spouse and now persists in keeping company with another person.
In conclusion, may I quote the words of Pope Leo XIII of happy memory, in his Encyclical “Arcanum” on Christian Marriage. They are addressed to the Bishops of the whole world, but they are also applicable to us in this and in many other phases of pastoral life.
This is very interesting. I wonder if spouses who do not keep their vows are in danger of damnation. Of course, I know they are, but where does Father Bernard teach that?