- Posted by Mary's Advocates
- On November 3, 1948
- Scholarly Resource
Cohabitation and Separation of Married Persons
A Paper read at the Conference of Priests of the Diocese of Albany, November Third, 1948
By THE REVEREND CULVAR BERNARD ALFORD,
S.T.B., M.A., JCD. Prosynodal Judge of the Diocesan Tribunal
NIHIL OBSTAT: Fr. Ferdinandus Mayer, O.F.M. Conv., Censor Librorum.
November 30, 1948.
IMPRIMATUR: + EDMUND F. GIBBONS Bishop of Albany. Albany, N. Y.,
December 3, 1948.
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.
Printed by the V-B Printing Company, Albany, New York
COHABITATION AND SEPARATION OF MARRIED PERSONS
CASE PROPOSED FOR THE CONFERENCE
To Father Simplicius, a confessor who is very popular because of his indulgent attitude toward penitents, there often come married people telling him of their domestic troubles. Among the cases put before him are the following:
- 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.
Four questions are proposed:
- 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 OBLIGATION OF CONJUGAL LIFE
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.
How often we meet with some voicing of that sentiment when we attempt to remind erring people of the law of God. The young man to whom we speak about keeping company with a non-Catholic answers, “Father, I figure that that is my own business.” Many Catholics display utter amazement when we tell them that it is a serious sin for a Catholic to keep company with a non-Catholic with a view to marriage [Mary’s Advocate’s note) See March 18, 1966, Sacred Congregation for the Doctrine of the Faith Instruction On Mixed Marriages]. And they resent what they consider to be unwarranted interference by the Church in their private affairs. In telling us that story of their marital troubles, many say substantially the same thing: “My mother was opposed to the marriage, but I told her that getting married was my own affair.” Also, we all have heard of Catholics who openly state that they never mention in confession their practice of birth control, “because the priest would give me a lecture and withhold absolution, and after all, things like that are a private affair between husband and wife.” Again, when we ask, “Did you obtain permission from the Bishop before you got the civil separation or the divorce?” almost invariably the answer is, “Why, no, I never thought of doing that; I figured it was just my own affair.”
In fact, a priest of wide experience in these matters recently made the startling statement before the Canon Law Society of America that he ventures to say “there is hardly a modern husband or wife, experiencing difficulty in married life, who feels that anyone in authority has the right to determine whether or not he or she shall continue cohabitation with his or her spouse.” [The Rev. James P, Kelly, J.C.D., Judge of the Archdiocesan Tribunal of New York, “Separation and Civil Divorce,” THE JURIST, vol. VI, No.2, April 1946, pp. 187 ff.] He also stated that he had “even heard married people say that priests have told them it was permissible for them to separate on their own authority provided they did not seek a civil divorce, or, what is worse, that it was permissible to seek a civil divorce on their own authority provided they did not attempt to remarry.” [Ibid.]
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.
The Church’s doctrinal position, based on Divine revelation and on the natural law, is that marriage is a contract by which a man and a woman, through a free act of the will, give to and accept from each other the perpetual and exclusive right to acts fitted for the generation of offspring, in a union of their lives which has for its primary purpose the procreation and education of children and secondarily mutual assistance’ and the lawful relief of concupiscence. This contract, so fundamental for the welfare of the human race, is not a human invention but has God Himself as its Author. It was instituted by God at the very beginning of the human race, even before the Fall, as we read in the second chapter of Genesis:
“And the Lord God said: it is not good for man to be alone; let us make him a help like unto himself,” [Genesis ii :18.]
“Wherefore a man shall leave father and mother, and shall cleave to his wife j and they shall be two in one flesh.” [Genesis ii :24. Cf. St. Matt. xix :5, 6.]
This contract, which is and always has been a res sacra, a sacred institution, an holy estate, “sua vi, sua natura, sua sponte sacrum,” [Leo XIII, Encyclical “Arcanum,” Feb. 10, 1880.] as said Pope Leo XIII, was itself elevated by our Divine Lord to the dignity of a Sacrament of the New Law among baptized persons. [Conc. Trident., Sess. XXIV, Doctrina de Sacramento Matrimonii, et Canon 1 de eodem; C.I.C., Canon 1012.]
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.
“Therefore, the sacred partnership of true marriage is constituted both by the will of God and the will of man; from God comes the very institution of marriage, the ends for which it was instituted, the laws that govern it, the blessings that flow from it, while men, through the generous surrender of their persons one to another for the whole span of life, become, with the help and cooperation of God, the authors of each particular marriage, with the duties and blessings annexed thereto from Divine institution.”[Pius XI, Encyclical “Casti connubii,” Dec. 31, 1930; translation of the “America” press.]
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.
We speak of the obligation of cohabitation; but it embraces more than simply dwelling in the same house. “Vitae conjugalis communio” includes within its meaning the mutual sharing in each other’s whole life and possessions. More than a partnership, it is from its very nature a union so close and so intimate as to affect their entire lives. As Pope Pius XI expressed it, “By matrimony the souls of the contracting parties are joined and knit together more immediately and intimately than are their bodies” in “a sacred and inviolable bond.” [Ibid.]
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.
That the obligation of vitae conjugalis communio may be properly fulfilled, married people have the duty also of practicing certain virtues in order to live together peaceably and happily. These virtues are chiefly: love that is chaste, patient, devoted and self-sacrificing; mutual trust and confidence that will eliminate suspicion and lack of faith in each other; generosity in caring for each other’s needs and desires; on the part of the husband, dependability and responsibility in providing for his wife and family; on the part of the wife, obedience and cooperation with her husband, “not as a servant but as a companion, so that nothing shall be lacking of honor or of dignity in the obedience which she pays.” [Pius XI, “Casti connubii.” Tanquerey, Th. Moral., T.I., De Matrimonio, nn. 789 sqq., pp. 458-460, ed. 1930.]
CAUSES FOR SEPARATION
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.
- Permanent Separation
The one single cause recognized by the Church as sufficient to justify permanent separation is adultery on the part of the other spouse, and even this cause is restricted by certain qualifications. Canon 1129, § 1, states:
“Propter conjugis adulterium, alter conjux, manente vinculo, jus habet solvendi, etiam in perpetuum, vitae communionem, nisi in crimen consenserit, aut eidem causam dederit, vel illud expresse aut tacite condonaverit, vel ipse quoque idem crimen commiserit.”
“When one spouse, either husband or wife, has committed adultery, the other spouse has the right, because of that crime, to cease all cohabitation with the guilty one, the bond itself of the marriage, however, remaining firm; but this right to separate is forfeited if the innocent spouse gave consent to the crime of the other, or gave cause to it, or condoned it expressly or tacitly, or committed the same crime.”
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.
From this Canon, and from the teaching of theologians and canonists, [Cappello, De Matrimonio, ed. 1933, n. 826; Kelly, I.e., pp. 196-7; Doheny, Canonical Procedure, Vol. II, pp. 621 If.]
and from the jurisprudence of the Sacred Roman Rota, it appears that seven conditions must be verified for the exercise of the right to permanent separation:
- 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.
In this section of the Code there is no mention of separation by mutual consent, but all authors agree that it is possible in the following cases, if there is no proximate danger of incontinency:
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.
- Temporary Separation
The law of the Church concerning the causes and procedure for temporary separation is contained in a single Canon, n. 1131. This lists as grounds for such a separation the following:
if the other spouse has joined a non-Catholic sect;
if he or she gives the children an education that is not Catholic; if he or she leads a criminal and ignominious life;
if he or she causes grave spiritual or bodily danger to the other; if by cruelty he or she renders conjugal life intolerable.
The list is not taxative, though only these are specified, since the Canon adds the phrase “these and other similar cause” – “haec aliaque id genus.”
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.
It will be noted that the causes listed in Canon 1131 are rather general. In large measure it is left to the discretion of the judge to decide whether or not the circumstances in each individual case a:fford a just cause for separation. Hence the difficulty of these cases. If there exists real danger to the soul or body of the petitioner, sufficient to justify separation, it would be unjust to deny it. On the other hand, if it is not proportionate to the evils consequent to separation, it would be a grave mistake to grant it. The jurisprudence of the Sacred Roman Rota is, no doubt, the best guide to the mind of the Church on this matter. Turning to it we find a decision of the Rota in 1930 in which the principles are admirably stated:
“Although cohabitation is not ‘of the essence of marriage yet separation from bed, board and cohabitation, even temporary, is a serious matter inasmuch as it is public, is contrary to the obligations of marriage, and is fraught with dangers to the consorts, especially the danger of incontinence. Therefore the cause of separation, that it may be considered as legitimate, must be proportionate to these evils, i.e., it must contain an element of danger either to the soul or to the body of the other party, and this danger must be so serious that the obligation ceases, which is imposed by the law binding the consorts to observe the communion of conjugal life.” [Rota Decisions, (1930) Vol. XXII, p. 524.]
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.
The Rota held that the existence of implacable hatred was not proved by the evidence; that Catherine’s language was not due to “odium capitale” but rather to her anger as a reaction to Francis’ injurious conduct toward her, and that there was no just cause for temporary separation in the case.[Rota Decisions, (1928) Vol. XX, Dec. XXIX, p. 267.]
A study of these and other separation cases adjudicated by the Rota will give the impression that the Church is very severe in this matter and very reluctant to grant even temporary separation. The reason is given in a decision written by the eminent Cardinal Lega, which says in part:
“It has been the constant jurisprudence of this Sacred Tribunal and of the Sacred Congregation of the Council that great caution should be used in granting separation from bed and board, because separation is directly opposed to the very purpose and ends of the marriage; it gives rise to scandal; it destroys the family; it exposes the consorts to the danger of incontinence; and it inflicts a severe loss on children, if there are any. The Right Reverend Auditors of this Tribunal are convinced therefore that they must adhere even more rigidly to this very wise jurisprudence of the Holy See, now when modern customs are tending to scuttle with facility all conjugal rights either through divorce or through separation.”[Rota Decisions, vol. II (1910), Dec. XXIV, n. 11; Kelly, I.c., p. 199.]
THE AUTHORITY QUALIFIED TO EFFECT A LEGITIMATE SEPARATION
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.
Consequently, married persons should not be told, “If this is true, you have the right to separate and there is no need to present the case to the Bishop.” Rather tell them, “Separation is a very serious matter, so serious that it requires the Bishop’s permission in any except the most extraordinary circumstances. So, to avoid complications that might involve your being excluded from receiving the Sacraments, take the matter to the matrimonial court of the diocese.”
The proper ecclesiastical authority qualified to decide cases of separation is the Bishop of the diocese. All other qualified persons participate in his authority or derive their authority from him. Two forms of process are possible: the administrative and the judicial. If the administrative process is used, the Vicar General is empowered by law to examine and decide the matter as Ordinary. The Officialis, as such, is excluded, and could only act by special delegation of the Bishop or of the Vicar General. [Doheny, op. cit., p. 644.]
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.
Moreover, we have in this country particular legislation on this point that is not explicitly mentioned in the Code: the decree of the Third Plenary Council of Baltimore is still binding on us. It reads:
“We command all (i.e. baptized) married persons that they must not go to the civil courts to obtain a separation from bed and board without previously receiving permission from the ecclesiastical authority. Should anyone attempt this, let him know that he incurs the guilt of grave sin and that he is to be punished as the Bishop shall decide.” [111 Cone. Plen. Balt., n, 126 (link see TlTULUS IV on 62, find n. 126) : “lis omnibus qui matrimonio conjunct sunt, praecipimus, De inconsulta auctoritate ecclesiastica, tribunalia civilia adeanr ad obtinendam separationem a toro et mensa. Quod si quis attentaverit, sciat se gravem reatum incurrere, et pro Episcopi judicio puniendum esse.”]
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.
THE CASES PROPOSED TO FATHER SIMPLICIUS
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 .
- James has obtained a civil divorce from Bertha. Since we may assume it was in New York State, where the only ground is adultery, and since in most ordinary cases the husband “takes the blame” even though not at fault himself, it seems reasonable to believe that adultery by Bertha can be proved. [ If this be true, and if the other necessary conditions are verified, James is entitled to a permanent separation. But he has obtained a divorce without the Bishop’s permission, and therefore is subject to penalty.[It would be otherwise if there were no adultery involved. We merely make the assumption here for the sake of illustrating the point.[In some dioceses, not however in Albany, he would incur an ipso facto excommunication for this. Cf. III Cone. PI. BaIt., n. 124.]
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.
We may summarize the whole matter, it seems, in the following five brief points:
- 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.
- It is no excuse to allege in justification of such company-keeping that “My case is now pending before the marriage court of the diocese.”
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.
“Take care not to spare your efforts and authority in obtaining that among the people committed to your guidance that doctrine will be preserved whole and unadulterated which Christ the Lord and the Apostles, the interpreters of the Divine will, have handed down, and which the Catholic Church herself has religiously preserved, and commanded to be observed by the Faithful of every age.”