"Exegetical Commentary of the Code of Canon Law"
The President of the Pontifical Council for Legislative Texts in the Roman Curia recommends an indisputable resource this text, which specifies acceptable reasons for spouses to stop living together.   Unless there is a danger of physical or spiritual harm in delaying, one cannot separate on one's own authority.   The only acceptable reason for permanent separation is when one's spouse commits adultery.

EXCERPTS FROM COMMENTARY

To be specific, the causes of separation are adultery, malicious abandonment, and behavior that puts the other spouse or the children in grave spiritual danger, grave bodily danger, or that in any other way makes common life too difficult. (c. 1151, page 1573)

The procedure related to causes of separation is regulated in cc. 1692-1696. Barring anything lawfully provided by particular law, personal separation of baptized spouses can be decided by decree of the diocesan bishop (administrative channel) or by judgment by a judge (judicial channel). The administrative channel is pursued before the diocesan bishop, who will pronounce his decision by decree, in which he must decide whether the separation requested is according to law, and he must find regarding the education and support of the children (cf. c. 1154) (c. 1151. page 1574)

For separation due to physical or moral cruelty to be lawful, the following conditions are necessary:
     - it must be grave, such that it makes common life dangerous for the spouse or children;
     - it must be repeated, because if it were merely occasional, it would not create the fear for future common life, which justifies the separation;
     - and separation must constitute the only means of avoiding the danger involved in common life. (c. 1153, page 1585)

With invocation of the concept of malicious abandonment, there is an attempt 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. (c. 1153, page 1586)

If the separation is caused because of adultery, the innocent spouse has the right not to admit perpetually the adulterous spouse to the common conjugal life. This is, evidently, a right of the innocent spouse, not an obligation. (c. 1155, page 1590)

The impossibility of the restoration of common conjugal life is an exceptional situation. This situation occurs when one or both spouses have embraced the religious state, or the man has received Holy Orders. (c 1155, page 1591)

The nature of the separation is not in response to a sanction, nor is it a penalty for crimes or injuries committed by a spouse, but rather it is a remedy, a means of defense against the danger of future evils. In any case, the longer or shorter duration of a temporal separation will depend on the combination of the gravity of the evil and the duration of the danger. Because the duration of these future evils is not always easy to determine, the separation is usually granted for an indefinite time, that is, as long as the cause lasts. (c. 1155, page 1591)
 

Background information about Authoritative Commentary

Canon law is written in Latin.  English translations with commentary are available.  In June 2004, the Midwest Theological Forum published an Exegetical Commentary of the Code of Canon Law: an 8-book, 8,000-page volume that includes exhaustive commentary on every canon and its original sources. The volume provides a literal “encyclopedia” to Canon Law.  His Eminence Julian Cardinal Herranz, President of the Pontifical Council for Legislative Texts in the Roman Curia, commented about this text: “Indeed, it would seem to me that this publication, carefully translated, clearly presented, and handsomely bound, will be an indisputable resource for English-speaking canonists, pastors, and students of the law.” (See quote in context)

The Pontifical Council for Legislative Texts is one of the departments of the Roman Curia.  In exercising supreme, full, and immediate power in the universal Church, the Pope makes use of the departments of the Roman Curia which, therefore, perform their duties in his name and with his authority for the good of the churches and in the service of the sacred pastors. (More Roman Curia)

Exegetical Commentary to the Code of Canon Law (©2004)
ART. 2 De separations manente vinculo
ART. 2 Separation While the Bond Remains

1151
     Coniuges habent officium et ius serenade convectum coniugalem, nisi legitima causa eos excuset.
     Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them.

SOURCES:  c. 1128
CROSS REFERENCES: cc. 1152-1155, 1673, 1692-1696, 1727-1739

COMMENTARY
Javier Escriva Ivars

1. Nullity, dissolution, and separation

     Common conjugal life, marriage in facto esse, consists of the bond, the conjugal rights and obligations that flow from the bond, and the common life in which these rights and obligations are exercised. These three elements receive different canonical treatment, namely nullity, dissolution, and separation.
     Dissolution of marriage and separation both take place in virtue of causes that occur following the celebration of marriage. However, dissolution involves extinction of the bond, the rights and obligations flowing from that bond, and common life. In contrast, separation only suspends the rights and obligations that-flow from the bond and correlatively interrupts cohabitation.

1. Cf. A. DE LA HERS, Relevancia juridico-canonica de la cohabitation conjugal (Pamplona 1966).
2. Cf., the entries "Separation matrimonial, Separaciones matrimoniales forzosas, Separados, Pastoral familiar, Abandono del conyuge," etc., in A. SARMIENTO-J. ESCRIVA, Enchiridion Familiae, 6 vols. (Madrid 1992).
3. Regarding the pastoral activity of the Church in marriage cases, especially in those of separation, cf. C. DE DIEGO-LORA, "Medidas pastorales previas en las causas de separation conjugal," in Ius Canonical 49 (1985), pp. 209-225; idea, "Las causas de separation de
conyuges segun el nuevo Codigo," in Dilexit lustitiam. Studia in honore Aurelii Card. Sabattini, curantibus Z. Grocholewski et V. Cancel Orti, (Vatican City 1984), pp. 391ff; idem, "Funcion pastoral y separation de conyuges," in lus Canonical 13 (1973), pp. 259-284;
D. STAFFA, "De natura pastorale administrationis iustitiae in Ecciesia," in Periodica 61 (1972), pp. 3-19; J. GIMINEZ Y MARTINEZ CARVAJAL, "Orientation pastoral del nuevo Codigo de Derecho Canonico," in Estudios Eelesidsticos 58 (1983), p. 380ff. Regarding the pastoral work
of the judges, see PAUL VI, Discurso dirigido al Tribunal de la Sagrada Rota Romana, March 8,1973; JOHN PAUL II, Discurso dirigido al Tribunal de la Sagrada Rota Romana, January 28, 1978; idem, Discurso dirigido al Tribunal de la Sagrada Rota Romana, February 4,1980;
idem, Discurso dirigido al Tribunal de la Sagrada Rota Romana, February 26, 1984, in A. SARMIENTO-J. ESCRIVA, Enchiridion Familiae, cit.

     Matrimony is naturally provided for married life. The valid celebration of matrimony entails the duty (at least intersubjectively (4) to establish and develop married life, because married life is the object of the mutual rights and obligations of the spouses. Canon 1151 sanctions this by stating "Spouses have the obligation and the right to maintain their common conjugal life." The right-duty of common life is the external manifestation of common conjugal life and constitutes the environment for the receiving and education of children. Nevertheless, c. 1151 authorizes spouses to suspend cohabitation if "a lawful reason excuses them."
     The right-duty of physical cohabitation stated in c. 1151 should not be confused with the right to common conjugal life. The right to common conjugal life is the juridical situation of solidarity and of shared assets, social condition, etc., between the spouses. The right-duty to cohabitation adds to the common conjugal life the specific fact of common life, since cohabitation is a natural consequence of the ius in corpus and common conjugal life. In this sense, cohabitation is the immediate operative principle for satisfactory fulfillment or exercise of the right-duty to the conjugal act and to common conjugal life. The right-duty to establish and maintain marital cohabitation is not the right-duty to common conjugal life, but a consequence of it. Undoubtedly, conjugal common life can exist with a very limited matrimonial life, as in the case of immigrants, exiled persons, incarcerated persons, and persons hospitalized due to serious mental illness. These situations are not the norm in marriage, but they graphically show that matrimony; common conjugal-We.-as a juridical. status, and mar-_ tied life cannot be confused.
     The duty and the right to establish and maintain conjugal cohabitation are subject to the vicissitudes of real life. However, as indicated in c. 1151, any separation must be owing to a lawful cause. Thus, matrimony always implies a relationship of cohabitation, but not necessarily a situation of cohabitation.
     Once matrimony takes place, a complex combination of interwoven interests is established between the spouses (individual, family, social, economic, spiritual, emotional, religious, etc.), and these interests develop, coincide, and unfold from the immediate cohabitation of the spouses. According to Hervada, (5) this living together is informed by a series of informing principles that constitute the general guidelines for spousal behavior. These principles are different from the conjugal rights and obligations, to which they give direction and meaning.

4. the difference between institutional and intersubjective duties, cf J. HERVADA, "Obligaciones esenciales del matrimonio," in Ins Canonical 31 (1991), pp. 63ff.
5. Cf. J. HERVADA, commentary on c. 1151, in CIC Pamplona.

     1) Spouses must guard their fidelity. Conjugal fidelity is not only the fruit of a conjugal right-duty, but includes the demand to be "one flesh."
     2) Spouses must tend to their mutual material or corporal perfection. This rule implies that spouses must help each other in the maintenance and improvement of the material aspects of their personal life. It also refers to the fact that matrimonial life must not involve a detriment to the corporal or material good of the other spouse.
     3) Spouses must tend to their mutual spiritual perfection. This implies that spouses must help each other in the maintenance and improvement of their emotional, moral and religious life. One spouse must not cause the other any detriment to his or her spiritual well being.
     4) Spouses must live together. This is the duty of physical cohabitation, namely a shared table, bed, and dwelling.
     5) Spouses must tend to the material and spiritual good of their children. This rule implies that spouses must tend to favor their dual well being in connection with their offspring. Moreover, one must not cause any harm to their material or spiritual well being, immorally or culpably.

3. The personal right to conjugal separation and its foundation

     Conjugal separation is a personal right of the spouses, the purpose of which is suspension of the conjugal rights and obligations .with the bond.. remaining.
     Canon 1151, after indicating that the spouses have the duty and the right to maintain conjugal cohabitation, presents an exception: "unless a lawful reason excuses them." What are lawful causes for separation? They are the behaviors that harm ordered compliance with the personal benefits of the spouses. As indicated by Hervada, (6) they are behaviors violating the principles informing matrimonial life.
     From the conjugal bond and the relationship of matrimonial life arise rights and obligations that constitute the content of the matrimonial juridical relationship. These personal benefits cannot be waived and are mutual, permanent, ' and exclusive. They are inseparably united and naturally designed for achieving the objectives characteristic of matrimony. The concrete exercise of these benefits involves conduct specified by the personal dignity of the spouses and the nature and objectives of the marriage.

6. Cf. ibid.

     4. Titulus of the law of conjugal separation

     For conjugal separation to have juridical efficacy, it is not enough that there be a lawful cause as regulated by cc. 1151 to 1155. Only under certain circumstances may the innocent spouse separate on his or her own authority (cc. 1152 § 3 and 1153 § 1). Generally, intervention by an ecclesiastical authority is necessary, either by decree of the ordinary (administrative separation) or by judgment of a competent judge (judicial separation). The legislator requires intervention by the ecclesiastical authority to objectively assess and determine the causes, the duration, and the effects of the separation. Therefore, in the case of adultery, within six months of having spontaneously terminated common conjugal life, the innocent spouse must bring a case for separation to the competent ecclesiastical authority (c. 1152 § 3). In other cases, one may only bring a case "if there is danger in delay" (c. 1153 § 1), which gives this' decision a provisional nature that

7. On the causes of separation, cf. A. BERNARDEZ CANTON, Las causas canonicas de separation conjugal (Madrid 41961).

     a) Separation of fact

     De facto separation indicates the cessation of matrimonial cohabitation, established arbitrarily by the spouses, either with the consent of both parties or unilaterally. This separation does not modify the juridical relationship between the spouses; it only involves a change in cohabitation. It is in fact a real separation, in which the juridical relationship remains intact but not complied with.
     The following phenomena should not be confused:
     - Separation of fact by mutual accord, that is, separation imposed by unintended circumstances or by material or spiritual convenience of the spouses (legitimate business, supernatural causes, etc.). This type of separation is juridically irrelevant and morally lawful.
     - Separation of fact unilaterally imposed by one spouse for a just reason is juridically irrelevant and morally lawful, although it is possible to question its absolute juridical inefficacy, given that canon law recog-nizes the possibility of unilateral separation for adultery (c. 1152 § 3) or if a delay in authorization from the ordinary involves danger (c. 1153 § 1).
     - Separation of fact for an indefinite period, by mutual consent or imposed unilaterally by one of the spouses, without a truly grave justifying cause, which is juridically ineffective` and morally unlawful if applicable,
the legal definition of malicious abandonment could constitute separation
unilaterally imposed by one of the spouses without just cause.

     b) Separation of law

     Separation of law involves the temporary or permanent suspension of the conjugal rights-duties by the competent authority after verification of the existence of a lawful cause for separation. There are two channels for satisfying the sufficient title of the right to conjugal separation: the existence of one of the lawful causes defined by the legislator and the intervention of the competent ecclesiastical authority.
     The procedure related to causes of separation is regulated in cc. 1692-1696. Barring anything lawfully provided by particular law, personal separation of baptized spouses can be decided by decree of the diocesan bishop (administrative channel) or by judgment by a judge (judicial channel). The administrative channel is pursued before the diocesan bishop, who will pronounce his decision by decree, in which he must decide whether the separation requested is according to law, and he must find regarding the education and support of the children (cf. c. 1154). This decree may be appealed, pursuant to cc. 1732-1739. The judicial channel

§ 1. It is earnestly recommended that a spouse, motivated by Christian charity and solicitous for the good of the family, should not refuse to pardon an adulterous partner and should not sunder the conjugal life. Nevertheless, if that spouse has not either expressly or tacitly condoned the other's--fault, he-o-r she-has the right to sever tho common conjugal life, provided he or she has not consented to the' adultery, nor been the cause of it, nor also committed adultery.
§ 2. Tacit condonation occurs if the innocent spouse, after becoming aware of the adultery, has willingly engaged in a marital relationship with the other spouse; it is presumed, however, if the innocent spouse has maintained the common conjugal life for six months, and has not had recourse to ecclesiastical or to civil authority.
§ 3. Within six months of having spontaneously terminated the common conjugal life, the innocent spouse is to bring a case for separation to the competent ecclesiastical authority. Having examined all the circumstances, this authority is to consider whether the innocent spouse can be brought to condone the fault and not prolong the separation permanently.

SOURCES:
§ 1: c. 1129 § 1
§ 2: c. 1129 § 2
§ 3: c. 1130

CROSS REFERENCES: -

     Like cc. 1129-1130 of the CIC/1917, c. 1152 mentions the only cause in canon law that can give rise to perpetual separation: adultery by one of the spouses.' According to the common opinion of writers, the admissibility of adultery as a cause for perpetual separation is based on the regula iuris frangenti fidem, fides non est servanda, a logical consequence of the general legal principle, fides est servanda. Therefore, c. 1152 sets forth negatively the first basic principle governing marriage: foedus nuptiale servandum est.

     1. Concept of adultery

     Adultery is sexual intercourse between a validly married person and a person who is not his or her spouse. It does not matter if a man or a woman commits it, or whether the accomplice is married or single. Adultery as a cause for separation only takes place when a man and a woman join to each other-when at least one of them is validly married-in such as way as to become "one flesh," and they are not husband and wife. Adultery involves the violation of the unity by means of which spouses can unite so closely that they come to be "one flesh," and, in this sense, it is the antithesis of the marital relationship, the antimony of marriage.
     As a benefit of marriage, fidelity can only be realized properly in the conjugal relationship of a man with a woman. The demand of this relationship is a characteristic of marital love, the interpersonal structure of which is governed by the interior norms of the "community of persons." Adultery constitutes the break-up of this conjugal -alliance of the man and the woman. Moreover, the alliance between a man and a woman constitutes the foundation of the union by which "a man ... cleaves to his wife, and they become one flesh" (Gen. 2, 24). This bodily unity is a right (ius in corpus), but it also is the external sign of the communion of persons, the unity established between the man and the woman as spouses. Thus, adultery committed by one of them is not only a violation of the ius in corpus, which is exclusive to the other spouse, but at the same time is a fundamental adulteration of that sign.

1. Regarding adultery as a cause for separation see A. BERNARDEZ CANTON, Las causas canonicas de separacion conjugal (Madrid 1961); idea, Compendio de Derecho Matrimonial Cananico, 7th ed. (Madrid 1991), pp. 264ff; M. LOPED ALARCON-R. NAVAHO VALES, Curio de Drench Matrimonial Chancing j Concordat, 51 ed. (Madrid 1994), pp. 285ff.

     2. Requirements for the canonical classification of adultery

     For extramarital sexual relations to be defined, as adultery and, therefore, for separation to be lawful, the adultery must be formal, consummated, and morally certain.

     a) Formal or culpable

     Since the conjugal act is the typical way in which spouses express themselves as "one flesh," Hervada states that adultery involves a direct threat to the innocent spouse, equivalent to refusing him or her as a spouse. Because it is a case of injustice, for it to constitute a true offense, the adultery must be formal, that is, it must be committed with knowledge that it is an infidelity, and it must be a free will decision. Therefore, material adultery is not enough.
     Since adultery is sexual intercourse between a validly married person and a person who is not his or her spouse, for adultery to be formal, the spouse must know that the person with whom he or she is having intercourse is not his or her spouse. Therefore, if a spouse had sexual intercourse with a person he or she believed to be his or her lawful spouse, there would be no case for adultery. There would also not be adultery if the validly married person thought him or herself free of the conjugal

     b) Perfect or consummated

     Adultery must be consummated, in the sense that sexual intercourse must take place with a third person. Other sexual acts are insufficient, but they may serve as proof of adultery or constitute a cause for temporary separation. Doctrine usually places sodomy with a third person and bestiality on the same level with adultery because they violate the sexual fidelity of the innocent spouse.

     c) Morally certain

     For adultery to have juridical consequences, it must be proven with moral certainty. No one can be deprived of his or her right if it is not proven with moral certainty that s/he violated his or her obligations. Thus, this is a procedural requirement, as opposed to the other requirements, which are objective or substantive.
     For a judicial judgment, it is necessary to prove that adultery was committed. However, since adultery takes place in privacy, proof is very _difficult ;and circumstantial evidence-is .highly important. The judge can achieve moral certitude through indications, conjecture, and especially conclusive presumptions (e.g., if the spouse is discovered sleeping with a third person in the same bed). Jurisprudence and canonical doctrine agree that the presumptions must be suitable for creating moral certainty. Mere probability, regardless of how high, is insufficient.

     3. Extenuating causes of the law in permanent separation for adultery

     There can be certain circumstances that impede the exercise of the right of the innocent spouse to separation. These circumstances include (c. 1152 §§ 1-3): a) when the innocent spouse has consented to the adultery; b) when the innocent spouse has been the cause thereof; c) when the innocent spouse has also committed adultery; and d) when the innocent spouse has expressly or tacitly forgiven the adulterer. In these circumstances, there would be no cause for separation because the force of the basic principle thereof, frangenti fidem, fides non est servanda, would cease to exist.

     a) Assent to adultery (c. 1152 § 1)

     Assent to adultery is express or tacit consent to the act that the spouse is going to commit. There is tacit consent when, from the way the spouse acts, it can be deduced that he or she is consenting to the other's adultery. For example, this would be the case when the innocent spouse learns either of the other spouse's plans to commit adultery or that the other spouse is maintaining sexual relations with a third party, but either does nothing to prevent them or provides the means for them to continue.
     With both express and tacit consent, the subjective reasons for the assent or approval are juridically irrelevant. For express or tacit consent to prevent the exercise of the innocent party's right to separation, it must not suffer from any of the defects affecting the efficacy of a juridical act. In the event that the consent should be nullified by any of the circumstances, affecting the efficacy of juridical acts, it can not be considered consented adultery.
     The consent given by the innocent spouse obviously refers to future adultery, and it can always be revoked. Consequently, from the time the innocent spouse revokes_ his or her consent and makes that known to the
other spouse, expressly of tacitly, any _adultery committed thereafter by
the latter would be imputable for the purposes of separation.

     b) Provocation of adultery (c. 1152 § 1)

     Provocation of adultery is more serious than consent. There is provocation when a spouse positively incites, assists, or induces the other to commit adultery or if there has been coercion to commit adultery. To consider provocation as a cause of adultery, it must be direct and immediate; there must be a causal relationship between one spouse's action and the other spouse's adultery.
     Bernardez (2) indicates that provocation can take place expressly, through an order, advice, or insinuation, or tacitly, by placing the spouse in certain environments and allowing or facilitating certain companionship. Provocation also can take place by repeated denial of the conjugal sexual obligation, food, expulsion from the home, etc.

2. Cf. A. BERNARDET CANTON, Compendio..., cit., p. 266.

     There is compensation when both spouses have committed adultery, regardless of who committed it first or more times." Taking into account that compensation involves the neutralization of guilt due to its casuistry, it causes some problems:
     - In relation to consented adultery. Consented adultery prevents compensation. The spouse who consented to his or her spouse's adultery, then committed adultery, is guilty for consenting to the other's adultery and for his or her own adultery.
     - In relation to provoked adultery. Provoked adultery prevents compensation. The spouse who provoked, then committed adultery, is guilty: for provoking the other's adultery and for his or her own adultery. In this case, as in the case of consented adultery, the spouse who both committed adultery and consented or induced his or her spouse to do the same cannot benefit from compensation.
     - In relation to condoned adultery. This issue is based on whether the adulterer who obtained forgiveness can ask for separation due to the adultery of the spouse by whom he or she has been forgiven. A sector of doctrine has stated that forgiven adultery cannot be invoked as compensation by the forgiver, if the latter in turn commits adultery after the condoning. Consequently, the forgiven spouse could request and obtain separation due to the spouse's adultery.
     Nevertheless, Bernardez claims that it is possible to maintain-invoke the tendency of canon law to favor the normal life of the institution of marriage -- that if the innocent party who condoned the adulterer should later commit the same offense, compensation of adultery could be held.(3)
     - In relation to adultery committed by the innocent spouse after having obtained sentence of separation for adultery. In this situation, there is compensation of adulteries, because a judgment in favor of separation for adultery does not authorize one to commit adultery. The first guilty spouse may request reinstatement of conjugal common life, especially if the separation took place on the authority of the offended spouse. If the separation took place through a judicial judgment, even if it could be morally understood that there was compensation for the adultery in the external forum, a new judicial judgment amending the current juridical status can be expected.

     d) The condoning of adultery (c. 1152 §§ 2 and 3)

     Forgiveness granted by the offended spouse to the adulterous spouse absolutely prevents the perpetual separation of the spouses due to adultery. Although the offended spouse has no obligation to forgive the

3. Cf. idea, "La compensation de adulterios en las causal canonicas de separation matrimonial," in Revista Juridica de Cataluna (1961), pp. 337-361.

     4. Form of establishing permanent separation (c. 1152 § 3)

     Conjugal separation cannot take place without the intervention of the public authority. In marriage between baptized persons, this intervention by proper right belongs to the competent ecclesiastical authority. However, "Where the ecclesiastical decision does not produce civil effectsaccording to c. 1692 § 2-or if it is foreseen that there will be a civil judgement not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts" (see commentary on c. 1692).
     However, because the intervention of the public authority is necessary in the perpetual separation procedure, this separation can take place on an innocent spouse's own authority. If the innocent spouse suspends conjugal cohabitation of his or her own will, he or she must lodge a cause for separation before the competent ecclesiastical authority within six months.

SOURCES:
§ 1: c. 1131 § 1; CodCom Resp. 111, 25 iun. 1932 (AAS 24 [1932] 284)
§ 2: c. 1131 § 2

CROSS-REFERENCES: c. 1152

COMMENTARY
Javier Escrivc Ivars

     Canon 1153 contains the causes for temporary separation,' separation that lasts as long as its cause. Instead of detailing these causes, as in c. 1131 of the CIC/1917, c. 1153 establishes three generic types: grave spiritual
ritual danger, grave bodily danger, and grave difficulty in common life.

     1. Grave spiritual danger (c. 1153 § 1)

     Canonical doctrine has tended to interpret this cause for separation as protection of the religious life of a person when either his or her salvation or the peaceful practice of his or her faith could be in danger. In short,

1. On the causes of conjugal separation, see A. BERNARDEZ CANTON, Las causas canonicas de separation conjugal (Madrid 1961).

     2. Grave bodily danger (c. 1153 § 1)

     There is bodily danger when, for any reason, there is danger to the personal safety or health of the spouses or children as a result of cohabitation. Through this cause for separation, the legislator protects the lawful right every person has to do what is necessary to preserve his or her own life and personal safety, and that of his or her children, especially if they are minors and cannot act on their own behalf.      4
     These threats or dangers may come from the malice of the other spouse, as well as from causes for which neither spouse is directly responsible. It will result from a spouse's malice when, for example, her or she attacks the other spouse or their children, threatens them with death or grave bodily harm, or when it is seriously and justifiably foreseen that this can occur at any time, without prior threats. It will proceed from causes without fault on the part of either spouse when one spouse suffers from a serious contagious illness or a state of insanity, and there is no other way of avoiding the danger. Consequently, if one spouse places the other or the children in grave bodily danger, he or she is providing a lawful reason to separate, whether or not the danger can be morally imputed to him or her.
     Grave bodily danger is a concept where the irrelevance of the spouse's fault can acquire greater importance. Certainly the danger can be enough without fault for there to not be a duty to live together. Moreover, not living together can even be a duty, as with serious contagious illnesses, aggressive insanity, etc. In these latter cases, the judge must investigate the seriousness of the illness or the danger of the mentally ill person to proceed with maximum justice, defending the personal safety of the spouse and children but also protecting the principle of mutual assistance

2. Cf. A. BERNARDEZ CANTON, Compendio de Derecho Matrimonial Canonico, 7th ed. (Madrid 1991), p. 269.

     3. Grave danger in common conjugal life (c. 1153 § 1)

     According to c. 1153 § 1, there is a legitimate cause for separation when a spouse makes common life too difficult. Making the common life unduly difficult is a generic expression that indicates a series of varied circumstances that can make conjugal cohabitation very difficult or impossible. With this expression, the legislator makes way for all those manifestations of cruelty-verbal or physical abuse, harshness, and lack of consideration towards another-that produce a common life that is practically impossible.
     Physical cruelty includes violent conduct and physical aggression against one's spouse or one's material assets, cruel or merciless treatment through beating, etc. Moral cruelty involves offensive conduct, in word, act, or omission, against the dignity, honor, and feelings of the person, through slander, insults, disregard. For separation due to physical or moral cruelty to be lawful, the following conditions are necessary:
     - it must be grave, such that it makes common life dangerous for the spouse or children;
     - it must be repeated, because if it were merely occasional, it would not create the fear for future common life, which justifies the separation;
     - and separation must constitute the only means of avoiding the danger involved in common life.

     4. Malicious abandonment

     The concept of malicious abandonment as a sufficient cause for separation is not expressly provided by current legislation. Its autonomous treatment and character regarding the other concepts of separation is the result of a work of jurisprudence and doctrine with the intent of specifically protecting compliance with every conjugal and family duty, and penalizing their omission.(3)

3. Cf. J. HERVADA, "Observaciones sobre el abandono malicioso j la restauracion de la vida conyugal," in idem, Vetera et Nova (Pamplona 1991), pp. 69-119; A. FERNANDEZ CORONADO, El abandono malicioso. Estudio jurisprudencial (Madrid 1985); A. BERNARDEZ CANTON, "El abandono malicioso como causa de separacion conjugal," in Revista Juridica de Cataluna 59 (1960), pp. 167-203.

     Conjugal separation is a matter of interest to the public good and cannot be done without the intervention of the public authority. In a marriage between baptized persons, this intervention belongs to the competent ecclesiastical authority. Nevertheless, c. 1692 § 2 indicates that "Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will be a civil judgment not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts" (see commentary on c. 1692).
     Since the intervention of the public authority is necessary for temporary separation, this separation can take place, as an exception, on the spouses' own authority, if there is a legitimate cause for separation and a delay involves danger.

Instituta separatione coniugum, opportune semper cavendum est debitae filiorum sustentationi et educationi.

When a separation of spouses has taken place, appropriate provision is always to be made for the due maintenance and upbringing of the children.

SOURCES: c. 1132

CROSS-REFERENCES: cc. 104, 100-106,1152,1153

COMMENTARY
Javier Escriva Ivories

     Canon 1154 establishes a generic principle since the arrangement for the children is mostly a question of civil effects that devolve upon civil judges. This canon recommends that, once spouses separate, appropriate provision is to be made for the due maintenance and upbringing of the children. This provision refers to cases of perpetual separation due to adultery, as well as to cases of temporary separation for other causes. The duty-right of the parents for the upbringing and maintenance of their children involves an extremely serious obligation and separation does not in principle absolve them of that responsibility.
     With regard to the domicile of separated spouses, c. 1E 4-provides: "Spouses are to have a common domicile or quasi-domicile. By reason of lawful separation or for some other just reason, each may have his or her own domicile or quasi-domicile." Pursuant to c. 104, any lawful separation is sufficient for each spouse to acquire his or her own domicile or quasi-domicile. For these purposes, cc. 100-106, which govern the acquisition and loss of the local see of the person, would apply.

Coniux innocens laudabiliter alterum coniugem ad vitam coniugalem rursus admittere potest, quo in casu iuri separationis renuntiat.

The innocent spouse may laudably readmit the other spouse to the conjugal life, in which case he or she renounces the right to separation.

SOURCES: c. 1130

CROSS REFERENCES: cc. 1152, 1153

COMMENTARY
Javier Escriva Ivars

     Canon 1155 is a norm that, through its text and systematic placement applies both to permanent and temporary separation of spouses.
     The invitation to reconciliation, and consequently to the restoration of the common conjugal life, expressly formulated in the text of c. 1155, and the exhortation to pardon on the part of the party offended by adultery with which canon 1152 begins and ends its text, axe a faithful reflection of the pastoral zeal that the canonical legislator has desired to imprint on the norm of the separation of spouses- In these cases various reasons, mutual misunderstandings, and an incapacity to-open oneself to interpersonal relations, etc., can lead the validly married couple to a rupture that is frequently irreparable. Pastoral zeal manifests the intent to maintain the unity of the family and the mutual respect of spouses, promoting fidelity even during the separation (see commentary on canon 1152: no. 3,c) and encouraging cultivattion of the necessary pardon, proper to Christian love, and the ability to eventually restore the previous conjugal life.
     Now, the full re-establishment of the common conjugal life, once the cause that gave rise to the disturbance in facto esse elements is eliminated or reduced, involves a situation of complex juridic nature, not easily synthesized into a unified- concept.'
     It is necessary, therefore, to be aware of those difficulties in order to construct a unified concept of restoration of the common conjugal life. The variety of situations that embraces the generic principle restoration

1. Of related interest, cf. R. NAVAHO VALLS, "La restauracion de la comunidad conjugal," in Estudios de Derecho Matrimonial (Madrid 1977), pp. 127-185; L. DEL AMO, "Restauracion de la comunidad conjugal cuando cesa la causa de separacion," in Revista de Derecho Privado (1964), pp. 1000ff.

     1. In the case of permanent separation for adultery

     a) The pardon of the offended party after the sentence of separation

     If the separation is caused because of adultery, the innocent spouse has the right not to admit perpetually the adulterous spouse to the common conjugal life. This is, evidently, a right of the innocent spouse, not an obligation. The innocent one can, then, freely renounce this right and readmit the adulterer back to the common conjugal life. The reestablishment of conjugal life, and therefore, the suspension of the juridical situation of perpetual separation, depends on the act of the will of the innocent one (the pardon). The adulterer can not oppose the restoration because of the legal imperative with which he or she is obligated to said restoration.
     In order that the common conjugal life be necessarily restored, a judicial sentence is required that evaluates the existence of pardon, a pronouncernent which, in accord  with what is foreseen in c. 1152 S 2, must keep in mind the existence of the express will of the forgiving spouse. That express will would be the most demonstrative indication that the suitable resumption of conjugal life after perpetual separation was judicially decreed.

   b) Compensation for adultery

   In the situation where the innocent spouse commits adultery after the judicial sentence of perpetual separation, one can understand that the necessary restoration of the common conjugal life would not be required as a compensation for adultery, for two reasons: that the first adulterer lost all rights to the body of the other, and that admitting such a hypothesis, an uncertainty would be introduced to the acquired juridical status and would injure juridical certitude.

     c) Impugning of the efficacy of the sentence of separation on the part of the adulterous spouse

The admission of this hypothesis does not seem possible, given the tenor of c. 1152, according to which the innocent spouse can separate "forever." Additionally, the CIC does not expressly foresee such a possibility.

     The impossibility of the restoration of common conjugal life is an exceptional situation. This situation occurs when one or both spouses have embraced the religious state, or the man has received Holy Orders. This change of state must be expressly consented to by the innocent spouse. In the situation of a change of state in life on the part of the innocent spouse, no additional authorization is required on the part of the guilty party, given that this party has lost all rights with respect to the other.

     2. The case of temporary separation

     Because of the nature of marriage, when the cause of the temporary separation of spouses ceases, conjugal cohabitation must always be reestablished unless the ecclesiastical authority determines otherwise, as it is sanctioned in c. 1153, § 2.
     In a temporal separation granted by an ecclesiastical authority, the more-or-less length of its duration is not fixed only as a result of the gravity of the cause or of guilt. The nature of the separation is not in response to a sanction, nor is it a penalty for crimes or injuries committed by a spouse, but rather it is a remedy, a means of defense against the danger of future evils. In any case, the longer or shorter duration of a temporal separation will depend on the combination of the gravity of the evil and the duration of the danger. Because the duration of these future evils is not always easy to determine, the separation is usually granted for an indefinite time, that is, as long as the cause lasts.
     Temporary separation, inasmuch as it has been granted for both determined and undetermined times, must cease at the moment in which the cause for which it was granted ceases. If the separation has been decreed by juridical sentence, the normal procedure would be that a new sentence declare the cessation of the cause of juridical separation.
     If the cause has ceased before the period of the granted separation has ended, the innocent spouse can request the competent authority to decree the cessation of the cause, so that again, both spouses would be obligated to cohabit. The innocent spouse does not have the obligation to reestablish the conjugal cohabitation if the indicated time has not ended, if the separation was decreed for an indefinite time, or as long as the authority has not decreed the cessation of the cause or that the spouses must restore common life.
     On his part, the spouse who was the reason for the cause of separation does not have the right to require juridically the restoration of the common conjugal life while the reason lasts that gave to the other spouse the excuse from living together, or as long as the period indicated by the authority has not expired.

     3. The case of separation by mutual consent

     Mutual consent does not constitute a legitimate canonical cause to decree separation, except in the situation of a change to a new state by one or both of the spouses; that is, when one or both have embraced the religious state or when the man has received Holy Orders. In these situations, the separation is understood to be perpetual.