- serious religious marriage: centuries-old meaning; “true marriage”; lifelong partnership between man and woman, open to raising and supporting children; certain offenses such as adultery and grave abuse justify separation but don’t end the marriage
- no-fault-divorce marriage: temporary partnership which ends when either party feels like it for any reason whatsoever; marital misconduct is not a consideration in determining how children and property are split, or in determining support.
Catechism and Pope Leo XIII Encyclical Arcanum
The Catechism of the Catholic Church teaches
- divorce is immoral and a grave offense against nature.
- It brings grave harm to the deserted spouse, to children traumatized by the separation of their parents and often torn between them, and because of its contagious effect which makes it truly a plague on society.
- It is only tolerable in situations delimited in canon law.
- There is a grave difference between the party that forces divorce and an innocent party abandoned.
In Arcanum, the Encyclical on Christian Marriage by Pope Leo, XIII, he taught:
Let no one, then, be deceived by the distinction which some civil jurists have so strongly insisted upon – the distinction, namely, by virtue of which they sever the matrimonial contract from the sacrament, with intent to hand over the contract to the power and will of the rulers of the State. . . (par. 23)
Pope Leo XIII
Arcanum, par. 23. 1880
Drafting Committee for 1983 Code of Canon Law
From the 1917 Code, canon 93 § 1 and 1128 discussed the obligation to maintain the common conjugal life, which were retained in the 1983 Code canon 104, and 1151.
Before the 1983 Code of Canon Law was finalized, various committees met to decide proposals for the new codeThey retained the requirement that the Bishop’s permission is required before a party could file for divorce in the civil forum. Mary’s Advocates highlights excerpts from their records:
- “matrimonial cases of the baptized belong by proper right to the ecclesiastical judge” […] “If the church would renounce its own duty and right, it would follow that a separation against the divine law would frequently be imposed or denied” (page 6, from April 19, 1971).
- “because cases of separation surround the reason of the public good and therefore they must be resolved by a public authority” (page 7, from April 19, 1971).
- “Other consultors proposed that it should say ‘servatis cautelis de quibus in § 2,’ [after having observed the precautions mentioned in §2] in place of ‘servato praescripto § 2,’ [after having observed the prescript of §2] so that the intervention of the Ordinary of the residence of the spouses is not required. It was voted whether this proposition was pleasing: Yes: 3; No: 5” (page 15, from March 31, 1979)
Compiled by Mary’s Advocates. Latin and English translations.
Records from Commissionis Codici Iuris Canonici Recognoscendo .
Bishop and Divorce, Attachment.
Mary’s Advocates finds that some Catholics say the Bishop’s permission before filing in the civil divorce is only required in countries where a concordat has been adopted between the civil government and the Church. The intention of the legislative consultors that drafted the 1983 procedural canons on separation of spouses (as recorded in their records) contradict the aforementioned position. In the late 70’s, there were some who had the opinion that a bishop’s intervention before filing for civil divorce should not be part of the universal Canon Law; some thought the requirement should only be implemented in territories wherein the local bishops enact their own law requiring bishop’s permission. All the consulters disagreed with those opinions.
- “Concerning the opinion of a certain organ of consultation, namely that the title about cases of separation should be suppressed, because the spouses never bring cases of separation to the ecclesiastical tribunal, or the whole question should be referred to particular law. However, all the consultors considered that this title is not able to be absent from the general law, considering the competence of the Church in cases of separation of spouses” (ibid page 15)
Questioning a Conjunction (and was swapped out and replaced with or): Before a bishop grants permission to a Catholic to initiate a civil divorce (or civil separation or civil annulment), he is to consider whether a civil decree would be contrary to divine law. Another condition to consider is whether an ecclesiastic decree will have civil effects. In 1971, the conjunction connecting the two conditions the bishop would consider—before granting a party permission to approach the civil forum—was the word “and” et. The Coetus Studii “De Processibus” from 19 April 1971 shows the consulter’s interest in preventing separations in the civil forum that are contrary to divine law (p. 144-149). In the 1976 Schema, item 61(b) shows the principles for the draft and the conjunction is “and” et; however, later in the same document, canon 356 shows the conjunction “or” vel (Schema, p. XVI, and 82).
Mary’s Advocates questions whether the conjunction was erroneously published as “or” vel, when it should be “and” et. See letter to the President of the Pontifical Council of Legislative Text HERE. If the conjunction in canon 1692 §2 is “or” vel, and the bishop could presume that an ecclesiastic decree would have no civil effects, then (based on that presumption alone) he could grant any person permission to approach the civil forum, even in cases where civil divorce is a grave offense against nature and immoral.
Legislative Scheme – Canon Law on Divorce
Herein are listed the canon laws which together show that a Catholic is not supposed to file for divorce on his own authority, without first getting the permission of the bishop or the bishop’s mandated delegate. This requirement is universal unless a bishops conference (for all their territories), or a bishop in his particular territory, has authoritatively established a particular law otherwise.
Can. 1692 § 1. Unless other provision is legitimately made in particular places, a decree of the diocesan bishop or a judicial sentence can decide the personal separation of baptized spouses according to the norm of the following canons.
§2. Where an ecclesiastical decision has no civil effects or if a civil sentence is not contrary to divine law, the bishop of the diocese of the residence of the spouses, after having weighed the special circumstances, can grant permission to approach the civil forum.
§3. If a case concerns only the merely civil effects of marriage, the judge, after having observed the prescript of §2, is to try to defer the case to the civil forum from the start.
A bishop is not supposed to dispense from procedural laws
Canon. 87 §1. A diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church. He is not able to dispense, however, from procedural or penal laws nor from those whose dispensation is specially reserved to the Apostolic See or some other authority.
Civil Judge not competent to OK separation
The civil forum judge purports to relieve a Catholic of his obligation to maintain the common conjugal life, but the civil judge has no independent competence to do so. Maintaining the common conjugal life is not a merely civil effect of marriage because it is a moral obligation.
Canon 1059 Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage.
Husband and wife enter a marriage contract. Like all contracts, one party can bring the other to an ecclesiastic canonical trial when there is a question of obligations and rights to be decided.
Canon 1411 §1 By reason of a contract, a party can be brought to trial before the tribunal of the place where the contract was entered into or must be fulfilled unless the parties agree to choose some other tribunal. §2 If the case concerns obligations which originate from another title, a party can be brought to trial before the tribunal of the place where the obligation either originated or must be fulfilled
The civil forum judge purports to have full control over the marriage contract, but for Catholics the Church is not supposed to follow the civil law in the Church’s management of affairs if the civil law is contrary to divine law.
Canon 1290 The general and particular provisions which the civil law in a territory has established for contracts and their disposition are to be observed with the same effects in canon law insofar as the matters are subject to the power of governance of the Church unless the provisions are contrary to divine law or canon law provides otherwise, and without prejudice to the prescript of canon 1547.
Merely Civil Effects
Canon 1059 (above) shows that the divine law and canon law govern Catholic marriage. However, for the effects of marriage that are the merely civil effects, the Church should not ignore the civil authority. In canon law, “without prejudice to” means “without ignoring.” Some authors have incorrectly stated that all divorce proceedings, decrees, and outcomes, are the merely civil effects of marriage. Those authors assert that everything about marriage is a merely civil effect except the question of the validity of the marraige.
Obligation to live together NO
It is incorrect to believe that the obligation to maintain a common conjugal life is a merely civil effect of marriage. When this error is made, the public thinks that the government civil judge is the rightful authority to relieve an abandoner of his obligation to maintain an intact home. The public wrongfully concludes there is nothing wrong with choosing to leave one’s marriage for any reason whatsoever.
Custody of Children NO
It is incorrect to say that determinations about custody of children or children’s visitation schedules are a merely civil effect of marriage. When this error is made, the public and children are given scandal when children are forced by government divorce to live with or spend overnight visits with a parent who wrongly caused the marital break-up by adultery or marital abandonment.
Property Division and Support NO
It is incorrect to teach that the determination of property division and obligations of financial support are merely civil effects of marriage. An end of marriage stated in canon 1013 the 1917 code explicitly is “mutuum adiutorium” (mutual help). One can interpret that this end of marriage is incorporated now in canon 1055 of the 1983 code.
When government civil judges make determinations about support, adulterers and abandoners are commonly rewarded financially because the court orders the innocent spouse to pay the spouse that caused the break-up. Or the one that caused the break-up is awarded half of more of the marital property. The government courts do not recognize the lifelong obligation of an adulterer or marital abandoner to provide his full share of “mutuum adiutorium.”
If a party broke off an engagement and refused to marry one’s’ fiancée, Catholic canon 1062 §2 shows that an action to repair damages could be warranted. Therefore, it seems reasonable that a party that caused a marital break-up, or caused a marriage to be invalid, should also be responsible to repair damages. The obligation to financially repair damage is not recognized in the government courts granting no-fault divorce.
Canon 1062 §2. A promise to marry does not give rise to an action to seek the celebration of marriage; an action to repair damages, however, does arise if warranted.
Civil Status Changed YES
A merely civil effect of marriage would be the determination of whether parties have the status of civilly married or civilly un-married. If an ecclesiastic judge was to issue a sentence that parties no longer have the status of being married and living together, it makes sense that a particular law would need to exist in a territory before a Church decree could change the civil status of parties from married to unmarried, or change the status from married to civilly separated. If no such particular law exists, the parties would need to approach the civil forum to change their civil status.
“The effects of matters that are either supernatural or have been elevated to a supernatural state are of two kinds: inseparable and separable (the latter, if they are temporal, are called merely civil). The first kind are those effects that necessarily flow from the supernatural matter and are so closely connected with it that they cannot be separated in any way. For example, the spiritual and supernatural effects of grace and aids that necessarily flow from Christian marriage, as well as the natural rights and duties that bind spouses to each other, and finally, the legal condition of the legitimacy of offspring.”
Ottaviani, Alfredo. Institutiones Iuris Publici Ecclesiastici
Institutions Of Public Ecclesiastical Law
Vatican City: Typis Polyglottis Vaticanis, 1935.
“Can Permit” ≠ “Not Required”
Some authors mistakenly assert that canon 1692 does not mean the bishop’s permission is required before a party files in the civil forum. These authors say there is no requirement because the canon shows that the bishop “can” give permission.
In other canons, the phrase “can permit” applies in situations where the normal lawful situation is defined, and special permission is required for a party to veer outside of the norm. For example, canon 1118 §2 shows that the bishop can grant permission for marriage to be celebrated someplace other than the parish church. Just because the canon says “can permit,” it does not mean that a Catholic, on his own authority can marry in any place he chooses.
Canon 1692 §2 shows the bishop “can grant permission” for a Catholic to approach the civil forum. Just because a bishop “can permit” a Catholic to initiate a divorce, does not mean that any Catholic on his own authority, can legitimately do so. Consider an example; when a Catholic’s neighbor owns a 7-passenger minivan, the owner “can give permission” to the Catholic to borrow the minivan for a family vacation. But this does not mean that the Catholic can decide on his own authority to just take the minivan for a week.
Parties required to Live Together
The normal lawful situation for couples is defined in canon law; they are supposed to live together. A Catholic can only legitimately separate on his own authority for two reasons: adultery and danger in delay (cf. cc. 1152 §3, 1153 §1). Separation is a substantively different occurrence than civil divorce. Just because a Catholic can legitimately separate on his own authority does not mean he can initiate a civil divorce on his own authority.
Canon 104 Spouses are to have a common domicile or quasi-domicile; by reason of legitimate separation or some other just cause, both can have their own domicile or quasi-domicile.
Canon 1151 Spouses have the duty and right to preserve conjugal living unless a legitimate cause excuses them.
Canon 1152 §1 Although it is earnestly recommended that a spouse, moved by Christian charity and concerned for the good of the family, not refuse forgiveness to an adulterous partner and not disrupt conjugal life, nevertheless, if the spouse did not condone the fault of the other expressly or tacitly, the spouse has the right to sever conjugal living unless the spouse consented to the adultery, gave cause for it, or also committed adultery.
§2. Tacit condonation exists if the innocent spouse has had marital relations voluntarily with the other spouse after having become certain of the adultery. It is presumed, moreover, if the spouse observed conjugal living for six months and did not make recourse to the ecclesiastical or civil authority.
§3. If the innocent spouse has severed conjugal living voluntarily, the spouse is to introduce a cause for separation within six months to the competent ecclesiastical authority which, after having investigated all the circumstances, is to consider carefully whether the innocent spouse can be moved to forgive the fault and not to prolong the separation permanently.
Canon 1153 §1. A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a lawful reason to leave, either by a decree of the local ordinary or, if there is a danger in delay, even on his or her own authority.
§2. In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority.
Ecclesiastical Governance, not Individuals
Civil divorce is legally and factually known to the relatives, friends, and faith community of those involved. Separation (regardless of whether it is accompanied by a civil divorce) is subject to the power of governance of the Church. Therefore, a Catholic should not exercise on his own behalf the power of ecclesiastical governance, or the pastoral and administrative power of the bishop.
Can. 1401 By proper and exclusive right the Church adjudicates:
1º cases which regard spiritual matters or those connected to spiritual matters;
2º the violation of ecclesiastical laws and all those matters in which there is a question of sin, in what pertains to the determination of culpability and the imposition of ecclesiastical penalties.
Public Good Requires Promoter of Justice
Separation of spouses involves the public good and requires the involvement of the Promoter of Justice (cf. c. 1696 CIC). If a Catholic initiates a civil divorce without the bishop’s permission, there is no mechanism to insure the required involvement of the ecclesiastic authority to promote justice and defend the public good, particularly the defense of the rights of the children and an innocent spouse who is critically counting on the upholding of marital obligations.
Canon 1696 Cases concerning the separation of spouses also pertain to the public good; therefore the promoter of justice must always take part in them according to the norm of can. 1433.
Agreed Divorce and Temporary Orders are Invalid
Catholics are not allowed to make an agreement or compromise concerning matters which pertain to the public good, nor matters about which the Catholic cannot make disposition freely. The public (including parties’ children) have rights that must be upheld by the diocesan Promoter of Justice. Many civil forum temporary orders are issued after the Defendant signs a document in which he agrees to have his family split into two households, his children under some back-and-forth parenting schedule, and his finances devastated by a support plan. Divorce decrees are issued routinely after similar agreed compromises that include property split. Such compromises, signed by a Catholic, are invalid.
Canon 1715 §1 An agreement or compromise cannot be made validly concerning matters which pertain to the public good and other matters about which the parties cannot make disposition freely.
Investigation of Particular Circumstances
When deciding whether or not to grant permission for a Catholic to initiate a civil divorce, the bishop is supposed to consider the situation “in light of their particular circumstances,” or “after having weighed the special circumstances” perpensis peculiaribus adiunctis, (cf. c, 1692 §2c CIC). This implies that the bishop or his mandated delegate must learn about the special or particular circumstances of any Catholic that plans to file for civil divorce. The bishop would never learn about the special or particular circumstances of a family, if a Catholic were not required to consult with the bishop before initiating a civil divorce.
Principles Applicable to Cases of Separation
General Conflict, Unhappiness – No Divorce
“The reasons for reaching such an extreme situation [needing divorce] must not be petty, such as stubbornness based on pride or lack of generosity in seeking solutions.” [the text shows that those with just cause for divorce may receive Holy Communion].
Libreria Editrice Vaticana. Sacrament Series Marriage 2015
“Conflict, quarrels, and misunderstandings can be found in all marriages. They reflect the impact of Original Sin, which ‘disrupted the original communion of man and woman'” (page 25).
USCCB. Marriage: Love and Life in the Divine Plan A Pastoral Letter
(citing the United States Catholic Catechism for Adults) 2009.
“Blameless, unhappy situations not only fail to constitute reason for suspension of the right and obligation to common life in its sense of solidarity and of sharing, but they also represent cases in which one of the ends of marriage, mutual assistance, must manifest itself in all its width and depth” (on canon 1153)
“Opposed to the civilization of love is certainly the phenomenon of so-called ‘free love’; this is particularly dangerous because it is usually suggested as a way of following one’s ‘real’ feelings, but it is in fact destructive of love. How many families have been ruined because of ‘free love’! To follow in every instance a ‘real’ emotional impulse by invoking a love ‘liberated’ from all conditionings, means nothing more than to make the individual a slave to those human instincts which Saint Thomas calls ‘passions of the soul’.
‘Free love’ exploits human weaknesses; it gives them a certain ‘veneer’ of respectability with the help of seduction and the blessing of public opinion. In this way there is an attempt to ‘soothe’ consciences by creating a ‘moral alibi.’ But not all of the consequences are taken into consideration, especially when the ones who end up paying are, apart from the other spouse, the children, deprived of a father or mother and condemned to be in fact orphans of living parents.”
Vatican. Pontifical Council for the Family
orphans of living parents
“Children, Springtime of the Family and Society”
October 14-15, 2000
“Unbearable Cruelty Which Renders Conjugal Life Insupportable [is a ground for temporary separation …] The Latin term saevitia means excessive or unbearable cruelty, harshness, extreme severity, fierceness, and barbarity. What is called cruelty, by way of travesty, in modern divorce courts could not be viewed as saevitia, in the sense of canon 1131 §1. Hence, the so-called incompatibility of temperament, divergence of views, and the like would not be considered sufficient to invoke separation” (page 634)
“‘It is not right that separation take place for light inconveniences, even though these are repeated, for example, incompatibility of temperament; for even more serious quarrels, arising from unusual anger and unexpected perturbation, do not exclude hope of an early reconciliation; nor, a fortiori, for just censure and correction […]; all these do not bring with them a serious injury or grave fear to a steadfast soul'” (page 151).
“There is an important decision of the Roman Rota, issued by Cardinal Lega as Dean, which takes to task several modern the moral theologians for their lax stand in permitting spouses to remain separated when they have done so for light reasons… [L]ight injuries and cruelties or mere incompatibility of temperament of the spouses cannot be held as sufficient reason for their separating” (page 179).
Forbes, Rev. Eugene.
The Canonical Separation of Consorts. 1948.
Citing Sacred Roman Rota S.R. Rotae
Dec., II (1910), Dec. XXIV, pp. 238-247
“Frequent quarrels, in themselves, are not regarded by the Holy See as a ‘just cause’ even for a temporary separation, as is clearly seen from a decision of the Rota in the year 1928 [citing Florczak]. In this case the alleged cause in modern parlance would have been termed ‘incompatibility of temperament,’ and would no doubt have supported a ‘divorce’ decree in almost any modern civil tribunal. The married life of the elderly couple had been marked by frequent quarrels and almost continual unhappiness. It was the contention of the petitioner that ‘implacable hatred’ (odium capitale) existed on the part of the wife. The decision, while recognizing that the wife bad used opprobrious language towards her husband, declared that the use of such language did not prove the existence of ‘implacable hatred,’ but only proved her anger towards him because of his conduct. The Sacred Rota declared that the frequent quarrels were due to avarice rather than ‘implacable hatred,’ and refused to grant a temporary separation inasmuch as a ‘just cause’ was not present” (page 62-63)
“[L]ight injustices from abusive words or the incompatibility of the personalities of the spouses which make cohabitation troublesome cannot be considered as sufficient causes to separate the spouses” (par. no. 2)
Roman Rota, coram Florczak, June 30, 1928
Sacrae Romanae Rotae Decisiones, 20 (1928). Decisio XXIX pp. 267-272
Innocent party Petition the Bishop to Entreat an Abandoner to Return
“[T]he competent ecclesiastical authority will cite the spouses with the finality of implementing the pastoral means of agreement and conciliation, in order for the conjugal life to be reestablished peacefully, according to the prescript of can. 1695” (page 399).
“One may initiate a judicial action not only for a decree of separation but also for the determination of the individual canonical effects. There is also place for court actions that seek to re-establish the unity of conjugal life, or to declare unlawful a separation already instituted (page 90). […] The case may very well be pleaded for the restoring of cohabitation after a separation has been pronounced but the cause is alleged to have ceased” (page 105). […] [The Defendant] has a right to the common life from the marital contract, and a consequent right therefore to defend himself by whatever judicial weapons are at hand in opposition to a separation action brought against him” (page 79).
“But long separations for trivial reasons or none at all are the concern of the church. 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 137).
“In a case of desertion, permission for separation is not to be granted at once. The deserting consort should be entreated to return” (page 659).
“[T]he obstinate refusal to establish the conjugal partnership after the invitation of a judge is a legitimate cause for pronouncing separation” (Par. No. 5).
Roman Rota, coram Perathoner, March 17, 1913
Sacrae Romanae Rotae Decisiones, 5 (1913).
Decisio XIX: pp. 217-225
This spoliation (spolium) may be caused not only by a third party, but also by either of the married couple, and that chiefly in three ways: 1. When either of the pair leaves the other of his or her own authority ; for the one who is thus left is unjustly deprived by the other of his conjugal rights.” […] “the rule is, that the ecclesiastical judge, upon due application by the injured party, should, speaking in general, forthwith decree reinstatement— that is, restore him or her to his or her conjugal rights by obliging the party that left of his or her own accord to return, unless the latter can show just cause for his or her action.”
Temporary vs. Permanent Separation
“An ecclesiastic authority shall objectively assess and determine the cause, the duration, and the effects of the separation” (on canon 1151).
. “[C]auses for temporary separation […]: malicious desertion, intolerable hardships imposed on one spouse by the other, joined with hardened aversion or hatred; very grave loss of temporal goods; danger threatening the wife’s fortune, if the only means of removing the danger is separation; an extremely avaricious and niggardly character which makes life unbearable; and excessively extravagant tendency to squander money to the detriment of the fortune of the other. There would be no particular advantage gained from further speculation as to possible causes. No complete listing would be possible” (page 128-129)
. “It is possible that the separation was granted for a definite, limited period of time. If this is the case, then there is an obligation on the part of both spouses to begin living together as soon as the time has elapsed. […]In a case in which separation was granted for an indefinite time, the innocent spouse is under no obligation to begin common life again with the guilty partner until there is a new decree from the Ordinary stipulating that the cause has ceased and that the parties must reconcile. The canon makes this provision in order to assure that the innocent party will not be compelled to restore the community of life unless there are sure signs of amendment on the part of the guilty spouse” (page 142)
“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 latter case for a determinate or indeterminate period of time. In the matter of a just cause, it is noteworthy that although adultery is the only cause for permanent separation, the causes for a temporary separation as enumerated in Canon 1131, §1, are not to be considered an exhaustive list. […] It is considered helpful , therefore, to consider causes for temporary separation under the general classification of : (a) spiritual unfaithfulness; (b) grave moral danger, and (c) grave physical harm” (pages 90-91).
“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 145)
“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 645)
Custody of Children
“A separation decree prevents future evils for the innocent spouse and children (On canon 1153).” […] “The judgment decree must include findings for education and support of children.” [(Mary’s Advocates note) It would give scandal to children and be cruel to a Catholic spouse keeping marriage promises, to give custody to a malicious abandoner with responsibility for children’s spiritual and character formation.] (On canon 1153)
“If both of the spouses are Catholic, it is most likely that the innocent spouse would see to the Catholic education of the children most effectively” (page 143).
“The unfortunate yet so important effect of a separation action is the proper determination of the custody of children. Here the law is clear and expressive; despite the necessity of civil recognition, which may be to the contrary, the 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 111).
“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 page 237, 239)
“After the separation, the children are to be placed in charge of the innocent party” (page 231)
Support
“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” (Page page 239, 241).
The one who is responsible for the divorce has the obligation to repair evil, e riparare concretamente il male compiuto.
Being the cause of a marital breakup, does not relieve a party of the obligation to support the spouse keeping marital promises and the children. Contributing to the material good of the children and the dedicated spouse for the duration of their lives is an obligation accepted when promising marriage. See informing principles of marriage on canon 1151.
One Rota case explicitly said that a party at fault in separation is not due support from the innocent party. “It is certain that a [reliable spouse], who was abandoned by [an abandoner] without a just and legitimate cause, has the right to support, until it is demonstrated from the judicial definitive sentence that the marital partnership did not cease on account of [abandoner’s] fault” (par. no. 4).
Roman Rota, coram Parrillo, May 4, 1929,
Sacrae Romanae Rotae Decisiones, 21 (1929),
Decisio XXIII, pp. 189-193
Grounds for Temporary Separation (not adultery)
[W]ith regard to the obligation of cohabitation, the fraudulent abandonment of the spouse can be a sufficient reason.
Separation is justified by the innocent spouse if the other spouse puts the children or the innocent spouse repeatedly in serious grave danger and separation is the only way to ensure safety (on canon 1153)
Grounds for temporary, but not permanent separation: The innocent spouse has a basis for separation from the spouse that commits offenses: heresy, apostasy, educating children as non-Catholics, leading a criminal and ignominious life (page 149)
“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).
Malicious desertion is a ground for temporary separation (page 150).
Forbes, Rev. Eugene. The Canonical Separation of Consorts. 1948.
Citing Sacred Roman Rota, coram Franciscus Morano, Dec. 4, 1929,
S.R. Rotae Dec., XXI (1929), Decisio LXIII, par. no. 4
“[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 635)
Doheny, William J.
Canonical Procedure in Matrimonial Cases,Volume II, Informal Procedure. 1944.
Citing Sacred Roman Rota, coram Franciscus Morano, Dec. 4, 1929,
S.R. Rotae Dec., XXI (1929), Decisio LXIII, par. no. 4
“[T]he Sacred Roman Rota has recognized among others the following as justifying causes for a temporary separation […] malicious desertion, done without justification but at the same time with the intention of not returning” (page 64)
Gibbons, Marion. Domicile of Wife Unlawfully Separated from her Husband. 1947.
Citing Sacred Roman Rota, coram Perathoner, March 17, 1913,
S.R. Rotae Dec., V (1913), Decisio, XIX, nn. 17-18.
“Specifically, ‘modern authors agree that malicious abandonment must be counted’ among the many causes ‘of temporary separation’. […] 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.
[…] 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.
[…] Furthermore, in order that the abandonment may be called malicious it is required that it be unjust and culpable with the intention of destroying the conjugal partnership. Moreover, the abandonment is unjust if it is done without a just cause or without any just pretext. […] Beyond this, it is required for the notion of malicious abandonment that this culpability and acting unjustly be united with the intention of destroying the conjugal life. For the one who separates with this intention evidently causes an injustice to the abandoned party” (par. no. 4-6)
Roman Rota Decision, coram Perathoner, Mar. 17, 1913
S.R. Rotae Dec., V (1913). Decisio. XIX, pp. 217-225.
For malicious abandonment to be a ground for a decree of separation of spouses, “[a] few criteria to be considered here. Malicious abandonment must be unilateral. This assuming the action was taken without knowledge nor agreement of the other spouse. It must also be illicitly objective and subjective. This meaning not only the lack of justified cause regarding one’s conduct, but also the clear knowledge of the lack of it by the person executing such action. Intention to dissolve the marital life must exist in the one displaying such action. […] Judicial stipulation of malicious abandonment in the canonical jurisprudence is a unanimous consideration of autonomous causes for conjugal separation.” In a 1985 doctoral dissertation in Spanish on malicious abandonment, with appendix including cases from the Roman Rota, the author made the above statements in her conclusion (page 291)
Ana Fernandez-Coronado González El Abandono Malicioso Estudio Jurispurdencial,
English Malicious Abandonment, Study of Jurisprudence. 1985
“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).
The Congregation of the Discipline of the Sacraments, show in 1936 in Provida Mater that there are distinct status for parties entering nullity proceedings. Some parties have “maliciously deserted” the other party. There are those that are “legitimately separated” and those that are “not legitimately separated” (Art. 6).
Congregation of the Discipline of the Sacraments
Provida Mater, 1936
Sanctions and Penalties
“With a decree of separation on the ground of malicious abandonment, there is an intent to declare guilty the spouse who has maliciously been absent and to obtain the legal declaration of separation for the one who has been abandoned” (on canon 1153, abandonment).
“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] (page 243-244).
Bishop’s Intervention before Party files in Civil Forum
“By means of the licentia, the public administration exercises preventive control over the activity of others in order to ensure its liceity or even validity.” [… ] “Despite the connection in law with the rescript, in reality the licentia is revealed to be not so much a distinct type of administrative act but the content of either a rescript or a decree, in particular as a kind of favour or a provision.” […] “The licentia is also a favour with regard to” […] “authorizing spouses to approach the civil forum for a cause of separation (CIC, c. 1692, § 2;”
“Can. 1692 §2 seems to require the previous permission of the Bishop of the diocese of the residence of the spouses – perpensis peculiaribus adiunctis – so that the spouses can approach the civil forum” (page 391).
“Since the transformation of the obligatory content of the bond is not limited to the civil effects of marriage, c. 1692 §1 implicitly establishes that cases of personal separation of the baptized must be taken to the canonical forum, “unless lawfully provided otherwise in particular places.” (page 1898)
“Since divorce laws have proliferated in many countries, the need to request the diocesan bishop’s authorization is a necessary precaution, which prevents the fostering of trials whose judgments violate precepts of divine law, to the detriment of the spouses and with the risk of scandal to others” (on canon 1692).
These reasons justify the separation, which, however, in itself, is AUTHORIZED BY THE ORDINARY OF THE PLACE (the Diocesan Bishop: can 1692 para 2) through decree, since it, even if motivated, does not be reduced to a simple private fact of spouses. For the very nature of marriage and for its social and religious relevance, it requires the intervention of the competent authority, in the same cases of temporary separation, also in order to avoid arbitrary or abusive decisions.
“[T]he Bishop of the place where the party seeking official recognition of the separation is living would be the appropriate ecclesiastical authority whose permission is required [before approaching the civil court …] A primary concern of canon law is that the case not be relegated to a civil court if the civil court might result in declaring the dissolution of a valid marriage bond or some other effect contrary to divine law” (p. 247).
Brown, Rev. Phillip J. JCD. Legal Separation: A Pastoral Alternative.
Studies in Church Law IV. Bangalore, India: St. Peter’s Institute, 2008. 215-252
“[Canon 1152 §2] does not state that for such an action [filing in civil court] the innocent spouse needs the prior permission of the competent ecclesiastical authority. However, the requirement becomes clear from Canon 1692 §2 [. . . ] This canon speaks about the granting of permission as a particular administrative act issued by a competent executive authority. It means that such a permission is needed for each case. That diocesan bishop has no power to grant a general permission that all separation cases in his diocese will be decided in the civil court. This would be contrary to the provision laid down and Cannon 87 §1 which states that the Diocesan Bishop cannot dispense from procedural laws, that is, laws ‘established to safeguard Justice and protect the rights of the faithful.’ [. . . ] However there is no need for granting permission in those countries where the supreme authority of the church has decided to by the way of Concordat that cases of separation will be handled by civil court” (Pages 258-259).
“[T]he law has placed an obligation on all spouses to obtain the permission of the diocesan bishop before approaching the civil forum. The process of drafting canon 1692 highlights the fact that it is the diocesan bishop alone who can allow the spouses to approach the civil forum” [from section 2.3.1 — The Norms of the 1983 Codex Iuris Canonici in Light of the Revision Process] (page 39).
St. Louis-Sanchez, Anthony. The Canonical Obligation of Spouses to Approach the Ecclesiastical Authority for a Separation,
(Thesis for Licentiae in Canon Law. St Paul University),
Ottawa. www.Academia.edu. 2014.
Decree No. 126 makes it clear that if, for serious reasons, an individual desires to obtain from the civil authorities separation from bed and board, permission is first to be secured from the competent ecclesiastical authorities (page 104)
A lawyer who takes the case of a Catholic desiring a civil separation or a civil divorce from a valid marriage, when the Catholic does not have ecclesiastical permission for such action is putting himself in a state of sin. It would seem that any good Catholic lawyer would be happy to let the Church make such a difficult decision and not assume to himself something which he is definitely forbidden in conscience to do. (page 106)
Catholic Lawyers Society Archdiocese of Detroit. Catholic Lawyers Guide. 1963
“1. What are the sins against marriage? … ii) Unlawful separation, iii) Divorce … .
4. Why is it a mortal sin to separate from your partner? Separation in a valid marriage is mortal sin because- i) God said so. ii) To separate means to refuse the marriage debt (mortal sin). iii) A separated person is tempted to commit adultery or some other sin of sex. iv) Children cannot be properly trained.
5. Is a validly married person ever allowed to separate? Yes, but only for a very serious reason and only with permission of the bishop.”
Rev. William Cogan, Adult Catechetical Teaching Aids,
Archdiocese of Chicago. A Catechism for Adults. 1958
The innocent person may not apply for a civil divorce except under certain very definite conditions: …That there be a grave reason for seeking a civil divorce over and above the separation that the Church has granted….That permission to institute divorce proceedings be granted by the bishop or his representative.
Fr. Donald F. Miller, C.SS.R., Imprimatur Archbishop of St. Louis
When May Husband & Wife Separate? 1957
When a party incurs the reserved sin of seeking a civil divorce without the permission of the Ordinary, the procedure in seeking faculties to absolve from this sin is the same as that outlined and required for seeking permission to enter suit for a civil divorce.
“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 147-148).
“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” (page 155-156).
“As it pertains to spouses, these things must been cared for in practice: … 4° Since matrimonial cases pertain to the Church, it is not permissible for spouses to seek a civil divorce, unless they have obtained a canonical license of separation first.” (Sec. 838, 4°)
Cappello, Felix M. Tractatus Canonico-Moralis de Sacramentis.
Pontifical University Gregorian. 1947, and 1950
“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).
“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 218-220).
“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.’
Alford, Rev. Culvar Bernard.
Cohabitation and Separation of Married Persons
Conference of Priests of the Diocese of Albany
1948
“[W]hen there is question of an alleged nullity of the marriage, private authority is not recognized as an adequate basis for establishing a legitimate separation” (page 77).
“It is certain that a Catholic is never permitted to approach the civil courts seeking the dissolution of his marriage without the permission of the Holy See or of the local Ordinary.”
Kelly, James P., J.C.D., “Separation and Civil Divorce,” The Jurist , vol. VI, No.2, p. 219. 1946
“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” (page 650).
A person may licitly seek a civil divorce in the following circumstances: … The permission of the bishop to bring the matter to the civil courts must be obtained.
Reserved sin by reason of itself. The couple, with their cause not having been judged by an ecclesiastical tribunal, who enter a civil tribunal, to obtain a divorce or separation from bed and board, however much intending only the civil effects.
Archbishop Henry Moeller. Cincinnati Diocesan Synod, 1920
The President of the Seminary in Menlo Park, California wrote a text in 1918 about the marriage law and the new code of canon law (the 1917 code). He taught, “The Third Plenary Council of Baltimore, n. 126, forbids having recourse to the civil courts without consulting the Ordinary. A regular trial is not required, but only the Bishop’s permission”
In the late 1800’s, the Printer for Holy Apostolic See, and the Sacred Congregation of Rites, published “The Pastor, A Monthly Journal for Priests.” It included analysis of decisions from the Holy Office, which would now be called the Congregation for the Doctrine of the Faith. In this issue, there was a section title Civil Divorce. Based on instructions from the Holy Office (now called the Congregation for the Doctrine of the Faith). they reiterated that the bishop’s permission is necessary before a party could file for divorce.
The Pastor, A Monthly Journal for Priests
Printer for Holy Apostolic See, and the Sacred Congregation of Rites, 1886
When the United States was still pseudo-mission territory, the U.S. Bishops drafted some particular laws for the faithful in their territories. Included among them was Act Number 126 stating that those who petitioned the civil forum for separation [or divorce] needed permission from the bishop first.
Third Plenary Council of Baltimore
Article 126, Year 1886
Further legal enactments particularly pertinent to procedural law were … Instruction of the Sacred Congregation of the Holy Office of June 22, 1883, addressed to Oriental bishops. 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.
Sacred Congregation of the Holy Office,
Sacred Congregation for the Propagation of the Faith
Published in Fontes. Year 1883
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;
Sacred Congregation of the Holy Office
19 December 1860
[a]ll these cases must pertain to the ecclesiastical judges alone.
[T]he holy and universal Synod wishing to meet the rashness of these men, has thought it proper […] that the more remarkable heresies and errors of the above-named schismatics be exterminated, by decreeing against the said heretics and their errors the following anathemas.[…] CANON VIII. If any one saith, that the Church errs, in that she declares that, for many causes, a separation may take place between husband and wife, in regard of bed, or in regard of cohabitation, for a determinate or for an indeterminate period; let him be anathema. […] CANON XII. If any one saith, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema.
Holy and Universal Synod Council of Trent
Twenty-Fourth Session 1563
