- Posted by Mary's Advocates
- On July 22, 2016
- Scholarly Resource
Instituto Martin de Azpilcueta.
Code of Canon Law Annotated Second edition revised and updated of the 6th Spanish language edition.
Woodridge, IL: Midwest Theological Forum, 2004.
Prepared under the responsibility of the Instituto Martin de Azpilcueta. Edited by Ernest CAPARROS, Michel THERIAULT (+), JEAN THORN (+). Second edition revised and updated of the 6th Spanish language edition. Edited by Ernest CAPARROS, Helene AUBE. Assisted by Juan Ignacio ARRIETA, Michael A. HACK, Jerome L. JUNG, David MOTIUK.
Article 2 Separation While the Bond Remains
Dr. Javier Hervada, Holder of the Chair of canon law,
Faculties of Law and Canon Law, University of Navarra, Pamplona.
Separation consists in the suspension of conjugal rights and obligations, although the bond remains. It is an undesirable situation, but it may constitute a remedy for circumstances that are extremely harmful for the spouses or their offspring.
Can. 1151 —- Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them.
1151 — “Convictus” (from convivo) means “life in company,” cohabitation; the CIC/83, therefore, is of the same opinion as the C1C/17: it begins the canons on separation with a declaration of the duty of the spouses to live together. It substitutes the expression : “convictus” for that of “vitae coniugalis communionem” (c. 1128 of the CIC/17), so that there might be no confusion with the conjugal bond which, in accordance with the terminology of Vatican II (GS 48), is described as “communitas vitae et amoris.”
Separation does not only involve suspension of common life and of the duty of the spouses to live together, but also entails the suspension of conjugal rights and obligations in general, with the exception of certain aspects; however, the most typical element, and that in which the state of marriage is most clearly shown as separation, is the suspension of common life and conjugal cohabitation.
What are the just reasons for separation? In marriage, apart from the conjugal rights and obligations in the strict sense, there are principles that regulate married life, that is, general guidelines for the behavior of the spouses. There are five such principles:
1) The spouses must remain faithful;
2) They must strive after mutual materiel or bodily perfection;
3) They must strive after mutual spiritual perfection;
4) The spouses must live together,
5) They must strive after the material and spiritual good of their offspring.
Reasons for separation, therefore, are those actions that seriously damage any of these principles. Consequently, the reasons for separation may be reduced to these four headings: adultery, grave bodily harm to the spouse or children, grave spiritual harm to the spouse or children, desertion.
Can. 1152 [concerns adultery and is omitted on this webpage]
Can. 1153 — §1. A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a lawful reason to leave, either by a decree of the local Ordinary or, if there is danger in delay, even on his or her own authority.
§2. In all cases, when the reason for separation ceases, the common conjugal life is to be restored unless otherwise provided by ecclesiastical authority
1153 — This canon contains the reasons for temporary separation, that is separation which lasts as long as the reason for it endures. Canon 1131 of the CIC/17 [see Note below] specified these reasons; in contrast, the present law establishes generic types.
It has bean widely discussed in recent years whether it is sufficient that the reasons for separation constitute a danger, or whether it is necessary that this danger should be of culpable origin, as prescribed in common doctrine. A distinction should be made between separation, which suspends conjugal rights and obligations, and the fact that the spouses no longer live together. Indeed, blameless danger is sufficient for there to be no obligation to cohabit; more so, there can be an obligation to not cohabit; e.g., in cases of very contagious grave illnesses, aggressive insanity, etc. Nevertheless, the fact that the spouses do not live together is not equal to de iure separation, i.e., a suspension of conjugal rights and obligations. Blameless, unhappy situations not only fail to constitute reason for suspension of the right and obligation to common life in its sense of solidarity and of sharing, but they also represent cases in which one of the ends of marriage, mutual assistance, must manifest itself in all its width and depth. It is not is the hands of the spouse nor in the power of human judges to suspend an obligation of natural law which has been imposed not only for favorable times, but also for the difficult and painful circumstances of life, when help is most needed from the person who is of the same flesh as the one suffering the misfortune (“[…] to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health […]” Rite of Marriage 25).
In order for the separation to be juridically effective and thus suspend conjugal rights and obligations as well as the objective of mutual assistance, the situations opposed to conjugal life must be culpable, because only guilt breaks the obligation of the other party and one’s own right. Of course, the spouse who is the cause of the problem refuses without good reason to cease cohabiting; his or her conduct is in itself a form of culpability.