The Canonical Procedure in Separation Cases

Page 42-45:
Further legal enactments particularly pertinent to procedural law were the Instruction of the Sacred Congregation of the Council, issued on August 22, 1840,(note 5) and an Instruction of the Sacred Congregation of the Holy Office of June 22, 1883, addressed to Oriental bishops(note 6). This last directive was incorporated for the most part by the Sacred Congregation for the Propagation of the Faith in its Instruction of the same year as sent to the bishops of the United States (note 7). This Instruction was incorporated along with the Constitution Dei miseratione, of Benedict XIV in the Acta of the III Plenary Council of Baltimore in 1884 (note 8). The assembly of the hierarchy also recommended to the attention of the American bishops the procedural norms of the Austrian Instruction of 1855. This Instruction was promulgated by Joseph Cardinal Rauscher (1797 – 1875), Archbishop of Vienna, in the meeting of the Austrian hierarchy in 1855 and it was approved by the Holy See as a particular law of the Austrian Empire (note 9).

Not only the Council of Trent but the Holy See through several papal letters and through Instructions of the Congregations insisted upon the right of the Church to hear marriage cases. These suits, it was pointed out, were not a matter of the mixed forum, but belonged to the exclusive jurisdiction of the Church. The reason for this declaration, was based on the nature of such cases as “causae spirituales”; thus the Church alone was competent. The same applied to separation cases. These cases, since they affected the very status of persons, were considered “res gravissimae” and were to be judged solely by an ecclesiastical tribunal (note 10).

It was not intended that the jurisdiction of the Church was exclusive in only vincular cases. Separation, even if it was only temporary, was considered a public matter and contrary to the nature of marriage. As a result, it not only looked to ecclesiastical recognition but also necessitated the intervention of ecclesiastical authority. Moreover, the actual hearing before the Church was to be considered not simply as a recommendation, but rather as a compulsory mandate (note 11).

Furthermore, this hearing before the Church was a serious matter. Even in this late post-Tridentine period the solemn process was still the ordinary mode of judging such suits. The summary and administrative methods were doubtless in use, but the law still considered the formal procedure to be the accepted practice. It was not until the latter part of this era that the more informal method received ecclesiastical sanction (note 12).

[(Mary’s Advocates Note) Fontes: One valuable resource for canonical research are the fontes to the 1917 code, collected in nine volumes by Cardinal Gasparri: Pietro Gasparri, Codicis iuris canonici fontes / cura em̄i Petri Card. Gasparri editi, 9 vols. (Publisher – Rome: Typis Polyglottis Vaticanis, 1923-1939). Cited as reference by “P. Gasparri, Codicis Iuris Canonici fontes (Rome: Typis Polyglottis Vaticanis, 1923–1939).” Available at Archive.Org HERE.

Note 5
Fontes, n. 4069. This Congregation was erected on August 2, 1564 by Pope Pius IV (1559-1565) to provide for the execution of the Tridentine decrees. Its power was extended by Pope St. Pius V (1566-1572) and Gregory XIII (1572-1585). Finally Pope Sixtus V (1585-1590) in a constitution of Jan. 22, 1588, Immensa aeterni Dei, gave it the full faculty of interpreting the decrees of the Council, but reserved to the Pope any interpretation of dogma——Zamboni, Collectio Declarationum Sacrae Congregationis Cardinalium Sacri Concilii Tridentini Interpretum (4 vols., Atrebati, 1860-1868), I, XIV (hereafter cited as Collectio Declarationum S.C.C.); Bouix, Tractatus de Curia Romana (Parisiis, 1859), p. 169. This Congregation shared the hearing of marriage cases with the Sacred Roman Rota, although the latter was not very active until the present century. Pope Pius X (1903-1914), by his constitution, Sapienti Consilio, of June 29, 1908, revived the Sacred Roman Rota and gave it jurisdiction to hear “causae omnes contentiosae non maiores,” which included cases of separation——Fontes, n. 682.

Note 6
S. C. S. Off., instr. (ad Ep. Rituum Orient.), a. 1883—Fontes, n. 1076.

Note 7
S. C. de Prop. Fide, instr., Causae Matrimoniales, a. 1883—Fontes, n. 4901; Collectanea S. Congregationis de Propaganda Fide (2 vols., Vol. I, ann. 1622-1866, Nn. 1-1299; Vol. II, ann. 1867-1906, Nn. 1300-2317, Romae: S. C. de Propaganda Fide, 1907), II, n. 1587 (hereafter referred to as Collectanea). Although there is no title of address prefaced to this Instruction in the Fontes or the Collectanea, it follows immediately upon another Instruction to the bishops of the United States regarding the manner of procedure in criminal and disciplinary cases of clerics. Many authors refer to it as directed to the bishops in the missionary territories of the world, but the better opinion confines it to the bishops of the United States. This view is substantiated by a response of the Sacred Congregation of the Holy Office, which refers to it as sent to the hierarchy of this country—cf. S. C. S. Off. (Colonien), 23 inn. 1903, n. 2—Fontes, n. 1266.

Note 8
“In agendis hisce causis pro rei gravitate exacte servetur tum Constitutio Benedict XIV, Dei Miseratione, 3 nov. 1741, tum Instructio a S. Cong. de Prop. Fide Nobis communicata quae incipit Causae Matrimoniales . . :’Acta et Decreta Concilii Plenarii Baltimorensis Tertii, A. D. MDCCCLXXXIV (Baltimore: John Murphy and Co., 1886), n. 304.

Note 9
”Utiliter etiam consuli poterit Instructio pro judiciis acclesiasticis Imperii Austriaci in causis matrimonialibus, a. 1855 a gravis theologis et canonistis Romanis, licet solo privato suo judicio, commendata”—loc. cit.; cf. Instructio Austriaca Josephi Cardinalis Rauscher, 4 maii 1855—Acta et Decreta Sacrorum Conciliorum Recentiorum, Collectio Lacensis (7 vols., Friburgi Brisgoviae: Herder, 1870-1890), V, coll. 1286-1316 (hereafter referred to as Collectio Lacensis); Analecta Iuris Pontificii (Romae, 1855-1869; Parisiis, 1872-1891), II (1857), 2515-2562.

Note 10
“Si quis dixerit, causas matrimoniales non spectare ad iudices ecclesiasticos: anathema sit.”—Conc. Trident., sess. XXIV, de matrimonio, canon 12; Pius VI, const. Auctorem fidei, 28 aug. 1794, Prop. 58, 59, 60—Fontes, n. 475; Pius IX, Syllabus Errorum (a. 1864), Prop. 74—Fontes, n. 543; idem., litt. ap. Ad apostolicae 22 aug. 1852, n. 2—Fontes, n. 511; Idem., ailocut. “Acerbissimum,” 27 sept. 1852, n. 3—Fontes, n. 515; instr. S. C. De Prop. Fide (a. 1883), n. 1—Collectanea, II, n. 1587. The authors of this period clearly confined separation cases to the ecclesiastical forum—Schmalzgrueber, lus Ecclesisticum Universum (5 vols. in 12, Romae, 1843-1845), II, tit. 1, n. 53 (hereafter cited as Schmalzgrueber) ; Gasparri, Tractatus Canonicus de Matrimonio, 3. ed., II, nn. 1457, 1458; Wernz, lus Decretalium, IV, n. 731.

Note 11
“Et propterea net al est coniuges fideles se, propria voluntate aut arbitrio, a coniugali toro separare, nisi ex causa a sacris canonibus permissa et auctoritate ac iudicio Ecclesiae cognita et probata.”—Sixtus V, coast. Ad compescendunt, 30 oct. 1586—Bullarum Diplomatum et Privilegiorum Romanorum Pontificum Taurinensis Editio (24 vols. et Appendix, Augustae Taurinorum, 1857-1872), VIII (1572-1588), 789. The III Plenary Council of Baltimore (1884) was faced with a special problem of Catholics seeking a civil separation without ecclesiastical permission. Such people were warned of the gravity of this offense and reminded of the penalty which he bishop might inflict at his own discretion—Acta et Decreta Concilii Pknaril Baltimorensis Tertii, A.D. MDCCCLXXXIV, n. 126.

Note 12
Wernz, lus Decretalium, IV, n. 714.

Page 79: “[The Defendant] has a right to the common life from the marital contract”

Page 90: “There is also place for court actions that seek to re-establish the unity of conjugal life” … “The common action in this matter is a petition for canonical recognition of the right to separation from an errant consort for a just cause. This action may look to a permanent or temporary separation, and in the later case for a determinate or indeterminate period of time.”

Page 96: “A good suggestion to be kept in mind is the fact that separation actually deprives a partner of a right, the right to cohabitation; to causes outlined in Canon 1131, §1, therefore, are subject to strict interpretation. As an example, the mere failure to practice one’s faith is not the equivalent of affiliation with a non-catholic sect, and one so accused might use this as an exception. The same holds true with reference to serious moral or physical dangers. These considerations are subject to a strict interpretation for the same reason, and the dangers must in addition to be continuous and character. One or two isolated incidents would not be sufficient, nor wood mere imaginings of cruelty as a result of normal conjugal disputes and arguments. The whole tenor of Canon 1131, §1 emphasizes habitual and repetitive repeated delinquencies. A well-founded and substantial denial of this is, therefore, a useful exception for the defendant [note 77. Roman Rota, coram Florczak, June 30, 1928 Decisio XXIX. no. 2.)”

Page 105-106: “5. The Judicial Process. Article 4. Concluding stages of the trial. A. The Sentence.” […]
.    As in all cases of doubt, the judge who cannot arrive at a moral certitude necessary for a says sentence is obligated to pronounce that the plaintiff right has not been established and the defendant retains the right to cohabitation. This is clear enough in a suit for canonical separation. Another problem arises when the situation is reversed. The case may very well be pleaded for the restoring of the cohabitation after a separation has been pronounced but the cause is alleged to have ceased. In a similar fashion as suit maybe presented as ‘actio de spolio,’ wherein the plaintiff wishes the already instituted separation to be declared unlawful and cohabitation to be restored. Does the same rule apply here, and is the doubtful judge obliged to declare the right to cohabitation not established, thus permitting the separation to continue? It seems not . Canon 1014 states that marriage enjoys the favor of the law and the doubt and in doubt the marriage is to be considered valid until the country is proved. In a suit attacking the marriage bond, therefore, the validity of the bond is a causa favorabilis and the doubt is favored. One might argue that Canon 1014 is limited to the bond of marriage and that on the contrary the right to conjugal unity is treated as a subject of any contentious case. This position is unwarranted despite the laws lack of explicit mention of cohabitation as a causa favorabilis, the whole ecclesiastical legal history honest institute favors its inclusion. There is no exhausted list of favored cases in the law; as a consequence, the community of conjugal life cannot be denied this privilege by such elimination. On the other hand as proof for its legal preference, there is a scholarly sentence by Cardinal Lega (+1935), then Dean of the Sacred Roman Roma, in which he clearly demonstrates that conjugal unity must be considered a favored cause. The sentence stated ‘omnia iura clamant ut coniugale consortium non disiungatur, nisi invicte comprobatur, adesse causam canonicam separationis.'”  [note 116. S.R.R., Separationis quoad Thorum et Mensam, 5 iul. 1910, coram R.mo.P.D. Michaeli Lega, Decao, dec. XXIV, n. 11–Decisiones II (1910), 244]  “Although not in the sense of the law, it is clear from this statement studied in the light of Canon 1128 that the community of conjugal life is to be considered a causa favorabilis whenever a judge is faced with a positive doubt and unable to arrive at the necessary moral certitude.

Page 108: “5, The Judicial Process. Article 4, Concluding stages of the trial. A, The Sentence.” […]
.      The length of time of the granted separation is always noted in the sentence and should be clearly stated. When the sentence grants a separation perpetually or for an indefinite time there is no difficulty, but other temporary separations require accurate terminology to preclude all misunderstanding. If the time is not definitely stated or the period ends upon the cessation of the cause, a clear enunciation of each should be made. The two sentences are not synonymous, and any lack of clarity may lead to ambiguity. Similarly, temporary separations given for a definite period of time of months, or years, as the case may call for; is issued, there will be no danger of subsequent harm to either of the parties at the hand of the judge.
.      In these cases the judge has a certain discretionary authority which he lacks in cases of perpetual separation. The latter leave room for but one sentence but temporary separations are ruled by circumstances. The judge should issue a sentence, then, according to a due proportion between the established just cause and the gravity of the obligation of maintaining conjugal unity. The period of time stated in the sentence should be an expression of this suitable adjustment arrived at upon prudent deliberation and judgment.
.      Since permission for civil action is usually petitioned with a separation action; mention of this should be made in the sentence or at least in a corollary thereto. Such permission is usually necessary in view of the complete absence of civil recognition of ecclesiastical sentences. One cannot deny that the ecclesiastical judge may decide matters relating to the so-called civil effects of marriage such as property settlements and payments of alimony. Although these matters may not be explicitly res spirituales as are the separation suits themselves, nevertheless, they pertain to it most intimately ex connexione causarum, and the ecclesiastical judge is canonically competent to adjudicate them. Be this as it may, the diocesan judge is still faced with the problem of civil recognition of his sentence as requisite for the protection of the parties. This necessitates a grant of permission to the parties to seek it. The types of civil action and the conditions requisite for a grant of permission will be treated in a later chapter. It will suffice here to say that whatever permission the judge issues in this regard is not of his own official authority. The Code is silent on this matter and there remain only the directions of the Roman Congregations as guiding norm. A response of the Sacred Congregation of the Holy Office clearly states that the granting of such a permission belongs to the bishop. The judge, therefore, must be delegated to issue any permission for civil action. In the absence of such a commission, a separate decree from the ordinary or his delegate is a necessary requisite.

Page 111: “[T]he ecclesiastical judge must attempt the observance of these provisions as far as possible. Canon 1132 grants the guardianship of the children to the innocent party as a general rule.”

Page 133: VI. Administrative Process. C. The Decree of Separation.
.    Since the administrative hearing of separation cases is an exercise of the governing jurisdiction of the ordinary, his decision in the case should be incorporated in a formal decree. Besides the usual formalities specifying the title and the number of the case, the date of the precept and the identification of the litigants, elements necessary for any such document, the decree of the ordinary should clearly grant or refuse the petition of separation. If the separation is allowed, the decree must state explicitly whether it is to be permanent or temporary and, if the latter, whether it is for an indeterminate or a determinate period of time.”
.      If the separation is temporary, some provision should be made for future reconciliation. The time for this may be given as a future date, as that coinciding with the lapse of the cause or as specified in some similar statement; that method is to be adopted which, in the discretion of the ordinary, the circumstances warrant. Some brief statement regarding the indissolubility of marriage, to call attention to the fact that this decree does not provide opportunity for any future marriage, seems appropriate.
.     By attaching it to this decree, the ordinary may express whatever permission he wishes to allow in the matter of civil action. If this method is followed, special emphasis must be placed on the impossibility of the contracting of a future marriage and even of the indiscretion of any courtship in view of its nature as a very real occasion of sin. Moreover, the oath of the petitioner attesting to a sincere intention to be freed safely of the obligations arising from the marriage contract in the civil forum is required. The oath should he appended to the decree of separation if both the decree and the permission for civil action are contained in the one document.
.     The decree should be signed by the ordinary or by his delegate and notarized in the usual manner. Moreover, the oath of the party mentioned above should also contain not only the signature of the deponent but also the signature of two witnesses.
.     Since the decree of separation and the provisions for civil action are essentially distinct matters, the ordinary may use separate documents to express his will regarding them. After granting a canonical separation he may wish to consider at greater length the causes presented for civil action. To do this would be most appropriate when one considers the gravity of his decision; for this reason at least, a separate decree permitting or refusing the petition for civil action may be executed. If this procedure is observed, for the avoidance of needless confusion, then the decree of permission should be incorporated in the file of the separation proceedings.

Page 147-148: “These writers [1885-1909], while not minimizing the great evils of divorce, nevertheless oppose the assertion that it was intrinsically evil and, therefore, never to be permitted. Their treatment consider this matter as never licit unless very grave and proportionate causes were present, as measured by a consideration of the evils and the insecurity afflicting an innocent spouse when there was no civil protection available and by a balancing of the good and evil which would result from divorce. […] [T]his opinion […] allowed such action [filing for civil divorce] only in those cases in which it was necessary to establish civil effects for an ecclesiastical granted separation. Moreover, it insisted on a grave and proportionate cause and the permission of the ordinary in every instance.”

Page 155-156:  “The permission of the local Ordinary is necessary requisite for a licit action [filing for civil divorce] in every instance. It is his office to judge the gravity of the reasons for seeking this legal remedy, and it is but reasonable, as a means of preventing the abuses arising from private judgment in this matter, that he, the guardian of faith and morals in his territory, thoroughly familiar with the local civil statutes, should be the authority to issue this permission in worthy cases.”