Canonical Procedure in Matrimonial Cases
- Posted by Mary's Advocates
- On July 22, 2016
- Scholarly Resource
Pages 618-638. (File size 15 MB)
Chapter 25. Proper Canonical Authorization of Separation.
Pages 640-653 (File size 7.9 MB)
Chapter 26 The Proper Canonical Procedure in Separation Cases
Pages 654-673 (File size 13.6 MB)
Chapter 27. Digest of Cases of Separation Adjudged by the Tribunal of the Sacred Roman Rota
Doheny, Msgr. William J. , C.S.C., J.U.D,.
Canonical Procedure in Matrimonial Cases, Volume II, Informal Procedure.
Milwaukee: The Bruce Publishing Company, Copyright 1944. Second Edition 1948
Though this work was published before the 1983 code, the grounds (reasons) for separation of spouses has not changed.
Author, Msgr. Doheny, was an advocate and procurator for the Supreme Tribunal of the Roman Rota. He also was the Assistant Superior General of the Congregation of Holy Cross and Dean of the University of Notre Dame’s Law School. He wrote a two volume set on marriage law in 1944.
Page 634: “Unbearable cruelty which renders conjugal life insupportable … means excessive or unbearable cruelty, harshness, extreme severity, fierceness, and barbarity.”
Page 635: “[D]esertion has been adjudged by the S.R. Rota as a cause sufficiently grave to authorize separation for an indefinite period of time.”
Page 645: “When the case is completed, the decision of the Ordinary is embodied in a formal decree, granting or refusing permission for separation. […] The decree should clearly state whether the separation is to be permanent or temporary. And here it must be recalled, that only cases of adultery or equivalent crimes authorized permanent separation.”
Page 650: “Before beginning a suit in the civil courts for separation, Catholics must consult, beforehand, the proper ecclesiastical authorities, even though they previously received from the Church a decree or sentence authorizing separation. This is obligatory, under pain of ecclesiastical sanctions, in virtue of Decree, n. 126, of the III Plenary Council of Baltimore, which states in part, “… Auctoritate Eccesiastica, tribunalia civilia adeant ad obtinendam separationem a thoro et mensa. Quode si quis attentaverit, sciat se gravem reatum incurrere et pro Episcopi iudicio puniendum esse.”
Page 652: VI. Reconciliation of Separated Consorts and the Restoration of Conjugal Cohabitation. II. Restoration of Conjugal Cohabitation in Cases of Temporary Separation.
. In the dealing with cases of temporary separation Canon 1131, §2 states that “in all cases, conjugal cohabitation should be resumed just as soon as the cause for separation ceases.” However, is a separation has been pronounced by the Ordinary either for a definite or indefinite period of time, the innocent party is not obliged to return except upon the expiration of the designated time or in view of the decree of the ordinary.
. If the innocent party has departed temporarily, propria auctoritate, there is a strict obligation to resume conjugal cohabitation just as soon as the cause of separation ceases. Likewise, upon the expiration of the time designated for the separation, the innocent concert is obliged to return. If the separation has been granted for an indefinite period of time by the judicial sentence or by the decree of the ordinary, the innocent party may await a subsequent decree of the ordinary in which the return to conjugal cohabitation is ordered. This decree can be very simple and brief and need not recount the detailed history of the case.
Page 659: “Malicious desertion is given by authors as a just cause for separation. The reason for this is quia recidit vel in odium capitale vel acerbiores animi affections. In a case of desertion, permission for separation is not to be granted at once. The deserting consort should be entreated to return. For this, all possible means should be employed. If the party fails or refuses to resume conjugal cohabitation within a reasonable or stipulated period of time, the judge may then grant separation to the innocent consort. Ex quibus colligi potest, non tam faqtum desertionis esse causam legitimam ad divortium pronuntiandum, quain potius pertinacem detrectationem conjugal, consortium instaurandi post iudicis invitationem. [(Translation by Mary’s Advocates. 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.]
“Before the desertion can be called malicious it must be proved to be unjust and culpable and done with the intention of severing the conjugal cohabitation. Ulterius ad notionem malitiosae derelictionis requiritur ut haec sit dolosa et iniuriosa coniuncta cum intentione vitam coniugalem solvendi. And whoever leaves his home with the intention of desertion obviously inflicts an injury upon the innocent consort. Such desertion must always be duly proved” (page 659).