The Canonical Separation of Consorts
- Posted by Mary's Advocates
- On July 22, 2016
Pages 127-175 (File size: 3 MB)
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Pages 222-247 (File size 2 MB)
Forbes, Rev. Eugene A, A.B., S.T.L., J.C.L.,
Canonical Separation of Consorts: An Historical Synopsis and Commentary on Canons 1128-2232.
Ottawa: The University of Ottawa Press, 1948.
Page 137: “The injured spouse has the right to petition the public ecclesiastical authority to force the return of his partner who has departed for an unjust reason.”
Page 145: “Adultery is the only ground for perpetual separation; all the others are a basis for temporary separation only. This crime gives the innocent consort the right to live forever apart from the guilty one. In cases of separation for other grounds, when the reason for separation ceases, the separation must likewise come to an end. The Ordinary or ecclesiastical judge in his decree or sentence, may grant separation for other causes besides adultery, for certain or definite periods of time, e.g. six months. He may also grant permission for the spouses to separate for an uncertain or indefinite length of time, e.g. until revocation by himself of his decree, or until cessation of the reason for which the separation was granted. In these cases, marital life must be resumed when the period of time has elapsed, when the Ordinary revokes his decree, or when the cause has ceased.”
Page 151: “The Rota holds that all causes no matter what their nature, must have one effect, i.e. danger of grave spiritual or corporal loss”
Page 151: serious quarrels do not make the right for separation and divorce, but could be reason for censure and correction.
Page 179: Rota judge takes to task modern theologians for lax stance.
Page 203: “In some instances the church out of tolerance delegates by concordat her power over separation cases to the civil authority. The civil judge deciding these cases according to the provisions of the Concordat acts licitly and validly, providing nothing is done in them against divine or ecclesiastical law, and the consorts likewise act licitly in submitting their cases to his judgment.”
Page 203-215: Article III “Separation by Civil Authority” (intro and A. Responses of the Holy See)
Sacred Congregation of the Holy Office 19 December 1860 (footnote 93, page 204)
Where the secular authority recognizes the civil separation of consorts, it is allowed on certain conditions, that consorts sometimes petition the state for civil separation in order to obtain the civil effects of an ecclesiastical separation already obtained. It is now the common opinion of canonists and moral theologians that the consorts, for a grave reason, may seek a civil separation from the secular courts. The conditions under which the seeking of a civil separation (the so-called “separate maintenance”) is tolerated are set down in a response of the Sacred Congregation of the Holy Office
1) there must be present just causes for the separation in the Judgment of the bishop;
2) there must be no other tribunal to which the Catholic can go to obtain a separation which would be recognized by the civil law;
3) the sentence of the civil tribunal must have no other effect than that of separation (note 93)
Sacred Penitentiary, January 5, 1887 (note 95)
“Sacra Poenitentiaria mature perpensis expositis, confessario oratori respondent: Mulieri poenitenti, in casu, nihil aliud esse consulendum nisi petendo divortio sub gravi se abstineat.”
Sacred Penitentiary, January 14, 1891 (note 96)
Sacred Penitentiary, June 3, 1891 (note 97)
“Petitam licentiam concedi non posse”
Sacred Penitentiary, June 7, 1892 (note 98)
Tres saint Pere,
M. are C. aviait epose. il y a neuf ans, une Demoiselle D. Trois enfants sont issus de ce mariage.
Malheureusement, la femme tint bientot une conduite seandaleuse. Elle quitta son mari d’une de ses relations adulteres naquit un enfant, qu’elle essaya de dissimuler. Durant sa grossesse, elle rentra meme momentanément sous le meme toit qui son mari, afin de rendre impossible a celui-ci une action em repudiation de paternite.
Pour pouvoir répudier cette paternité, pur empêcher l’introduction de nouveaux batards dans sa famille et sauvegarder ses omterets de frptime et ceux de ses trios enfants, le mari, vu l’état de la legislation civile, n’a d’autre moyen efficace que de demander le divorce civil.
Cependant, comme il est reverent catholique, il n’entend pas que cette rupture du lien purement civil, soit considérée comme une lesion du lien religieux qui l’unit a sa malheureuse femme.
Ainse sa pensée n’est-elle nullement de paraitre redevenir libre de contracter une nouvelle union, mais seulement d’user des moyens que lue donne la legislation en vigueur pour s’assurer une entière separation de vie, de corps et de biens d’avec sa famille et notamment de ses enfants.
Dans ces conditions, il demande s’il lui est licite d’engager une action en divorce civil contra sa femme?
Sacra Poenitentaria ad premiss respondet: Non licere.
Datum Roman in S. Poenitentiaria die 7 January 1892.
Summary Translation by Mary’s Advocates
There’s this lady who is married and has 3 children with her husband. She leaves her husband and conceives a baby in an adulterous union. Then, she returns to her husband in order to claim that it’s her husband’s baby. But the husband finds out about it, and in order to protect his other three children, he intends to get a civil divorce, but he’s a good Catholic so he understands that by this divorce the sacramental bond between them will not be ruptured, but there will only be separation of state of life, bed and board and so forth. So, they ask if it’s allowed for him to request a divorce. And the Sacred Penitentiary says no, so the wife might repent, he must not request a civil divorce, and to do so would be a grave sin.
Sacred Penitentiary, June 30, 1892 (note 99)
Orator consulat probatos auctores.
Page 218-220: “In [English-speaking] countries, a Catholic could petition the civil courts for a divorce under the following conditions, all of which must be verified in a particular case: 1) In every instance the permission of the local Ordinary is necessary in order that a Catholic seek a civil divorce. […] 4) There must be present a causa gravissima, not only of the private order, but of a public order as well [(Mary’s Advocates’ note) public order means that the ecclesiastic public authority, i.e. local Ordinary, or his delegate, has affirmed that there is causa gravissima.) […] The safest procedure would be for the Ordinary to treat all cases of civil divorce petition first as ecclesiastical separation cases.”
Page 228-228: X, The Effects of Separation. Article I, Effects of Legitimate Separation. A. Restoration of Conjugal Community. [Re. Grounds other than Adultery]
. These other grounds are extrinsic to the nature of marriage, and do not directly contradict its nature as adultery does. There is less evil in them, and their effects, therefore, are commensurate with the causes themselves. The ius coniugale is not lost by them, but only its exercise for a time. Their effect is only temporary, so that, when the cause ceases, the right of separation ceases also. If a spouse has separated proproa auctioritate on any of these grounds when the reason for separation is certain and there is danger in delay, he is bound to restore marital life on cessation of the grounds.
. The Canon, however, tempers with equity the last sentence of Pope Urban’s decision above: “Si vero iudicio ecclesiee ab eo sine spe matrimonii redintegrandi recessit, ad ‘recipiendum elan nullatenus earn dicimus compellendarn.” If the Ordinary has fixed a time limit to the separation, eo elapso, conjugal life is to be restored, unless the separation has been prorogued by the Ordinary. If the sentence or decree of the Ordinary conceded separation “until the cause ceases,” then the separation must cease upon cessation of the grounds. If the innocent party is unwilling to return, he sins, and the other partner can seek the intervention of the Ordinary to verify the cessation of the grounds and to enforce reconciliation. If the Ordinary has fixed a time limit to the separation, say three months, on its expiration community of marital life is to be restored, and the recalcitrant party sins in refusing reconciliation. If the Ordinary has granted separation ad tern pus indefiniturn, the innocent party cannot be forced to return on cessation of the cause, but only by a new decree of the Ordinary. In any case, the innocent spouse should not be compelled to restore conjugal community unless the guilty party gives sure signs of amendment and sufficient guarantee of security for his spouse.
Page 237, 239: “It is a general principle of law that, after separation, that children are to be given in custody to the innocent party. This rule is the enumerated by the Roman law. […] If the father were the cause of the separation, the children were to be raised by the mother at the father’s expense. If the mother were the cause, they were to be raised by the father at the mothers expense, especially in a case where she was wealthy”
Pages 239, 241: “Father and mother were considered as correlative in regard to the matter expenses. […] If the husband is the cause of the separation […] he is bound to support her [the wife] for the rest of her life if the separation is perpetual in the same manner he was supporting her before the separation took place. […] If the mother were the cause, they [the children] were to be raised by the father at the mother’s expense, especially in a case where she was wealthy”
Pages 243-244: The silence of the code forces the conclusion that illegitimate separation is not a delict in the strict sense of the law, because no canonical sanction saltem indeterminata has been attached to it. It cannot, then, be grounds for criminal prosecution against the guilty party. The Ordinary, however, can protect and enforce the rights of the innocent party, victim of illegitimate abandonment by the other, with the judicial or administrative sanctions. […] For principles concerning the nature and gravity of the sin committed by consorts who separate illegitimately as regards cohabitation, the reader is referred to writings of moral theologians” [Forbes cites Prummer, Merkelback, Noldin, Genicot, Lehmkuhl, Sabetti-Barrett].