Ask your  diocesan tribunal to investigate if your spouse has a good reason to leave you and ask it they will provide you with a separation decree including upbringing of children and support.

This petition is a compilation of excerpts of canon law commentary recommend by the President of the Pontifical Council for Legislative Texts.  We have no knowledge as to how any particular tribunal will respond to this petition.

rev 1,
May 8th, 2005
Mother's Day

TITLE
Petition Diocese Tribunal to investigate if Spouse has lawful reason for leaving family

DIOCESAN TRIBUNAL DIOCESE OF xxxxx

( Name of Petitioner)

Reverend Judges,

1. - The petitioner, xxxx (full name), born xxxx (month) xx (date), xxxx (year), a Roman Catholic, is presenting this Libellus to the Ecclesiastical Tribunal of xxx (name city of diocese) Diocese, requesting an investigation to determine whether or not : I) the respondent, xxx (abandoner's full name) has lawful reason[s] to excuse him (or her) from maintaining his (or her) common conjugal life (can. 1151), i.e. communitas vitæ et amoris (Gaudium et spes, 48, 1); II) the respondent has been legitimately and lawfully authorized by his Ordinary to separate himself (or herself) from his (or her) spouse and family; and thereby bring his (or her) case before the civil forum of the State to seek a decree of legal separation and/or divorce; III) an ecclesiastic separation decree, including findings regarding the upbringing and adequate support of the children, which does not violate precepts of divine law, be provided by the tribunal judge (can. 1153).

The petitioner holds that the requested investigation demands an ordinary contentious process (can. 1693, §1).

2.  The actions of the respondent, who has requested a divorce and xxxx , are a direct violation of precepts of divine law; and, as a direct consequence, the same have caused severe detriment to the spouses and their children.  ( at the xxxx, provide concise description of immediate problems to spouse and children caused by respondent's behavior)

4. - The law of the Catholic Church states that "spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them" (canon 1151 of the 1983 Code of Canon Law).

"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)"  (Dr. Escrivá Ivars, Exegetical Commentary of the Code of Canon Law, prepared under the responsibility of the Instituto Mariti'n de Azpilcueta, Midwest Theological Forum, 2004 ISBN: 1890177334 (c. 1151. page 1574))

"§ 1. Unless lawfully provided otherwise in particular places, the personal separation of baptized spouses can be decided by a decree of the diocesan Bishop or by the judgment of a judge in accordance with the following canons.   § 2. Where the ecclesiastical decision does not provide 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.  § 3. If the case is also concerned with the merely civil effects of marriage, the judge is to endeavor, without prejudice to the provision of § 2, to have the case brought before the civil court from the very beginning (canon 1692 of the 1983 Code of Canon Law).

"However, in other causes, the crises of married life are not due to a defect of marriage consent.  In these cases, the solution cannot be a declaration of nullity, but if sufficient causes exist, in the issuance of an act of a constitutive nature through which the ecclesiastical authority brings about a transformation of the obligatory content of the union.  Therefore, one is not dealing with a divorce but with the modification of the obligations to which the spouses are bound.  .... [In] the case of separation, we are facing decisions, juridical or administrative, of a constitutive character." [...] "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 the causes of personal separation of the baptized must be taken to the canonical forum, "unless lawfully provided otherwise in particular places." [...] "a) In countries that permit the anticipation that the sentence issued in this matter will not be contrary to the divine law, the spouses can solicit the permission of the bishop of the diocese of residence to go to the civil forum." (Dr. Joan Carrers, "Exegetical Commentary of the Code of Canon Law," prepared under the responsibility of the Instituto Mariti'n de Azpilcueta, Midwest Theological Forum, 2004, ISBN: 1890177334 (cc. 1692, page 1898))

"When a separation of spouses has taken place, appropriate provision is always to be made for the due maintenance and upbringing of the children." (canon 1154 of the 1983 Code of Canon Law)

"This canon merely establishes a generic principle without going into the details found in c. 1132 of the CIC/17, since it considers that there are civil effects pertaining to the civil judge, though providing what is necessary for the Catholic education of the children is a Church matter which is within the province of the ecclesiastical judge." (Javier Hervada, "Code of Canon Law Annotated, Second edition revised and updated of the 6th Spanish language edition." Woodridge, IL. 2004. Midwest Theological Forum, ISBN 1-890177-44-X, (canon 1154, page 897))

As specified in canon 1692 only the merely civil effects of marriage can adjudicated by the governmental civil forum.

 "there must be noted the two classes of effects possible to supernaturalized or supernatural matters of mixed character.  Those effects which flow necessarily from the supernaturalized thing, and are so bound up with it that they can in no wise be disjoined therefrom, are called inseparable.  Such inseparable effects cannot be make the subject of negotiation without at the same time having the substance of the thing to which they are annexed touched also.  Two examples in point are the spiritual and supernatural graces and helps that necessarily proceed from Christian marriage, and the juridic condition of legitimated offspring.  On the other hand, those effects which do not necessarily derive from the substance of res mistra and are not unchangeably connected with it, but rather depend upon the command of positive law and therefore can be disjoined from the thing itself, are called separable.  Moreover, when these separable effects are temporal, they are given the name of merely civil effects." (J. William Goldsmith, "The Competence of Church and State of Marriage - Disputed Points", published by Catholic University Press, 1944, page 22)

"Cases concerning the separation of spouses for any of the reasons established in cc. 1152-1153 are intended to determined and decide the effects inseparable from the essence of marriage.  The Church has the right to judge cases arising from marriages between baptized persons, although in some cases the spouses may be allowed to resort to the civil tribunal (§§ 2-3), especially when the effects are merely civil, and therefore separable from the essence of marriage. (cf. § 3)" [...] "Leaving aside the prescriptions of particular law on this matter, § 1 establishes two ways of hearing this type of case;
     "1) Administrative: the case is brought before the diocesan bishop who, by decree, gives his decision as to whether the requested separation is to be granted, and establishes guidelines regarding the upbringing and adequate support of the children. ...
     "Paragraphs 2 and 3 [canon 1692] consider some cases where the spouses, after obtaining authorization from the diocesan bishop of their place of domicile, bring their case before the civil forum.  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 [civil (my note)] trials whose judgments violate precepts of divine law, to the detriment of the spouses and with the risk of scandal to others."  (Dr. Luis Lopez Madero, "Code of Canon Law Annotated, Second edition revised and updated of the 6th Spanish language edition." Woodridge, IL. 2004. Midwest Theological Forum, ISBN 1-890177-44-X, (canon 1692, page 1324))
 

"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.

"There are five of these informing principles:
     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."  (Ivars, Exegetical Commentary, canon 1151, page 1571-1572)

Consequently, the reasons for separation may be reduced to adultery, grave bodily harm to the spouse or children, grave spiritual harm to the spouse or children, and desertion.

 "In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority" (canon 1153, §2, 1983 Code of Canon Law).

 It is respectfully requested that this petition of, xxxx (full name), be admitted by decree, and a date be set to cite the parties in order to determine, after a thorough investigation conducted through an ordinary contentious process, whether:

I.   the respondent, xxx (abandoner's full name) has lawful reason[s] to excuse him (or her) from maintaining their common conjugal life (can. 1151), i.e. communitas vitæ et amoris (Gaudium et spes, 48, 1);
II.   the respondent has been legitimately and lawfully authorized by his Ordinary to separate himself from his spouse and family; and thereby bring his case before the civil forum of the State to seek a decree of legal separation and/or divorce;
III) an ecclesiastic separation decree, including findings regarding the upbringing and adequate support of the children which does not violate precepts of divine law shall, shall be provided by the diocesan bishop (administrative channel) or judgment by a judge (judicial channel) (can. 1153).
 

In faith,
 

full name

xxxx (name of city of diocese), xx (date) xxxxx (month), xxxx (year)