Rota 1913 Perathoner

Par. No. 1: Hence, today, by this sentence, the cause between the parties is placed under this concordance of doubts: “1. Whether there is a legitimate cause for separation in this case? And if affirmative: 2. Whose “sin provides the reason for separation?”.

Par. No. 4. Specifically, ‘modern authors agree that malicious abandonment must be counted’ among the many causes ‘of temporary separation’ ” […] “The Council of Trent already hinted at this, defining that the bond of marriage cannot be dissolved because of the affected absence of a spouse (Session 24, canon 5), and it expressly acknowledged the Austrian Instruction, Par. 209: ‘The spouse, whom the other party maliciously abandoned can ask for a separation from bed and table, until the culprit of the desertion has sufficiently proved the ready intention to fulfill the conjugal duties.’

Par. No. 5: As far as the way of proceeding in a case of malicious abandonment, Aichner, (loc. cit.) observes well that separation must not be decreed straightaway and immediately. “For in the first place, the spouse who unjustly separates is compelled to return by a neutral competent judge at the petition of the deserted party. A time-limit must be prescribed against this man for the intention of being absent, and if he stays where he is unknown, he must be cited with the prescribed time-limit in that very place through public newspapers. Then, with him obstinately persisting in his own mind, the judge grants a temporary separation to the innocent party with all effects.” From these words it can be adduced, not so much that the fact of abandonment is a legitimate cause for pronouncing separation, but rather that the obstinate refusal to establish the conjugal partnership after the invitation of a judge is a legitimate cause for pronouncing separation”

Par. No. 6: “the abandonment is unjust if it is done without a just cause or without any just pretext”

Par. No. 17: “Therefore, since Henry did not have a just cause for leaving, moreover, since his intention to destroy the conjugal partnership is proven or at least it must be ardently presumed, therefore, the abandonment, in this case, must be called malicious and culpable, or injurious to his family.