Page:Catholic Encyclopedia, volume 5.djvu/87

 DIVORCE

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DIVORCE

can be the mere cessation of married life {separatw quoad torum), or a complete separation as regards dwelling-place {separatio quoad cohabitalionem). Each of these may be permanent or temporary. Tempo- rary abstinence from married Ufe, or separatio a tow, may take place by mutual private consent from higher religious motives, not, however, if such continence be the occasion of moral danger to either of the parties. Should such danger tlu-eaten either, it would become their duty to resume married hfe. The Apostle speaks of this in I Cor., vii, 5; " Defraud not one an- other, except, perhaps, by consent, for a time, that you may give yourselves to prayer; and return together again, lest Satan tempt you for your incontinency."

1. The Clioice of Evangelical Ferfection. — For a per- manent separation on account of entrance into the state of Christian perfection, i. e. entrance into reli- gious life on the part of the wife or of the husband, or by the reception of Holy orders on the part of the hus- band, there is required not only mutual consent, but also some arrangement on the part of ecclesiastical au- thority, according to the laws about such cases. This holds in regard to the reception of the major orders immediately after the contraction of marriage, even before it is consummated. In regard to the choice of religious life, it holds only after consummated mar- riage. For, as we have said above, by the religious life marriage which has not yet been consummated can be dissolved, and on that account newly-married par- ties have the right to a delay of two months to con- sider the choice of the state of perfection, and during which the consummation of the marriage may be re- fused (St. Alphonsus, "Theol. mor.", VI, n. 958). In case the marriage is not dissolved, the reception of Holy orders or religious profession cannot take place before provision has been made for a continent life on the part of the other party. In accordance with the judgment of the diocesan bishop, he or she must either enter a religious order, or, if age and other circum- stances remove all suspicion and all danger of incon- tinency, at least take a private vow of perpetual chas- tity. In no case can it ever be allowed that the husband who should receive Holy orders might dwell in the same house with the wife bound only by a private vow (cf . Laurentius, " Instit . jur. eccl.", 2nd ed., n. 694).

2. Adultery of One of the Parties. — Cause for the cessation of complete community of life, which in itself is perpetual, is given to the innocent party by adul- tery of the spouse. In order, however, that this right may exist, the adultery must be, first, proven; second, not attributable to the other spouse either entirely or as accomplice; third, not already contloned; fourth, not, as it were, compensated by the adultery of the other party (cf. IV Decretal., xiii, 6, and xix, 4, 5; Wernz, "Jus decret.", IV, n. 707 sq.; St. Alphonsus, VI, n. 960). If the innocent party is certain of tlie sin of the other, he or she has a right immediately to re- fuse the continuation of marrieil life. If the crime is manifest, then the innocent party is justified in leav- ing at once the guilty one, or in dismissing liim or her from the hou.se. If, however, the crime is not known, or not proved with certainty, then complete separa- tion can follow only after a judicial investigation and a judicial decision, which must be made by ecclesias- tical authority (IV Decretal., xix, 4, 5; i, 9; Wernz, "Jus decretal.", IV, n. 711). All sexual intercourse outside of married life is regarded as equivalent to adultery in justifying complete separation, even the unnatural sins of sodomy and bestiaUty. As proof of the crime may be alleged what are called suspiciones vehemenles. In the first centuries of the Church, there was often a commandment, and the duty was im- posed on tlie innocent party, to separate from the party guilty of adultery. There never, however, was any such general legislation. The duty, however, of separation was foundcil partly on the canonical pen- ance imposed for ailultery that was publicly known

(and this penance was incompatible with marital life), and partly on the duty of avoiding scandal, as contin- ued living with a husband or wife addicted to adultery migh t seem to be a scandalous approval of this criminal hfe. For this latter reason, even nowadays, circum- stances may arise making the dismissal of the guilty party a duty (cf. St. Alphonsus, VI, n. 963 sqq.). Commonly, however, at least for a single violation, there is no duty of separation; stiU less is there any duty of permanent separation; in fact, charity may in certain cases demand that after a temporary separa- tion the contrite party might be invited or admitted to a renewal of the married life. There is, however, never any obligation of justice to receive again the guilty party. The most that some theologians recognize is an obligation of justice when the party originally in- nocent has meanwhile become guilty of the same crime. The innocent party always retains the right in justice to recall or to demand the return of the guilty party. If the innocent husband or wife wishes to give up this right forever, then he or she can enter a religious order, or he may receive Holy orders, without the necessity of consent on the part of the guilty wife or husband who has been dismissed, or without any further obhgation being imposed upon this party (III Decretal., xxxii, 15, 16). The guilty party can, how- ever, proceed to the religious life or to the reception of Holy orders only with the consent of the innocent. This consent must either be granted expressly or be deduced with certainty from the constant refusal to be reconciled. It is the business of ecclesiastical author- ity to decide in any case, whether such certainty ex- ists or not. A further obligation, such as the vow of perpetual chastity, is not imposed upon the innocent party, but the freedom to remarry is allowed after the death of the other spouse (cf. Ill Decretal., xxxii, 19; Wernz, op. cit., n. 710, not. 126; St. Alphonsus, VI, n. 969).

.3. Heresy or Defection from the Faith. — Next to adultery, a reason for separation almost equivalent to it is defection from the Faith, whether by the rejection of Christianity or by heresy (IV Decretal., xis, 6, 7). However, there are some important differences to be noted : —

(a) In the case of adultery, a single action, if proven, is enough for permanent separation, but in the case of infidelity or heresy, a certain persistence in the sin is required (cf. St. Thomas, IV Sent., dist. xxxv, Q. i, a. 1), such for example as adhesion to a non-Catholic de- nomination.

(b) An ecclesiastical sentence is necessary in this case for the right of permanent separation. If this has not been obtained, the innocent party is bound to receive the guilty party after conversion and recon- cihation with the Church. This is expressly decided by IV Decretal., xix, 6. Wlien, however, the right to permanent separation has been granted, the innocent party can proceed at once to the religious life or re- ceive Holy orders, and thereby render it impossible to return to married life. It need hardly be mentioned that infidelity or heresy, as such, gives no just cause for separation of any kind, if it existed before the mar- riage was contracted, and if a dispensation from the impediment of disparity of worship between a baf)- tized and a non-baptized person has been granted, or if a valid marriage, even without ecclesiastical dis- pensation, has taken place between a Catholic and a baptized non-Catholic. In such cases, passage from one denomination to another does not give a reason for separation.

4. Danger to Body or Soul. — Besides these special cases of separation founded on ecclesiastical law, man}^ other cases may arise, which, of their nature, jus- tify temporary separation. They are summed up under the general notion of " danger to body or soul" (periculum corporis aut anima-). There must, of course, be question of an appro.ximate danger of great