Exegetical Commentary Canon 1151-1155

ART 2 Separation While the Bond Remains


Citations

conditions are necessary bring to top
malicious abandonment bring to top
prevent future evil for the innocent spouse and children bring to top
must find regarding education of children and support bring to top
contribution to material good of spouse and children bring to top
source for canon no. 1153 in earlier code from year 1917 bring to top
adultery, speacial cases Canon 1152 bring to top
required intervention by ecclesiastical authority. canon 1151 bring to top

Recommended by the President of the Pontifical Council for Legislative Texts

Canon law is written in Latin. English translations with commentary are available. In June 2004, the Midwest Theological Forum published an English edition of the Code of Canon Law Annotated. 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)

In the excerpts below, the code is bold. The annotations are in plain text. To read an approved English translation of the law itself visit Vatican's Website Canon Law 1151-1155

Bibliography
Instituto Martin de Azpilcueta. Exegetical Commentary Code of Canon Law.Ed. Angel Marzoa, Jorge Miras, Rafael Rodriguez-Ocana. Woodridge, IL: Midwest Theological Forum, 2004.
ISBN 1890177334

Excerpts



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Escriva-Ivars
[(transcriber's note)Holder of the Chair of canon law, University of Valence.]

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.

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Nullity differs from dissolution and separation since it occurs due to causes that are contemporaneous with the celebration of marriage. It involves the nonexistence of the bond from the start, as well as the extinction of the rights and obligations between the spouses, precisely because their cause is lacking.

While dissolution and nullity affect the three elements of marriage in facto esse, thus causing its fundamental extinction, separation of bodies only suspends conjugal rights and obligations, except in some aspects, while the bond remains. In cases of separation, then, the rights that make up marriage (ius in corpus, ius cohabitandi) remain in force, even if they are  not realized.'

The Catholic Church has always considered conjugal separation an extreme remedy for difficulties arising from matrimonial life .(2) If matrimony is a freely constituted, indivisible, exclusive, and perpetual community of love, the separation of spouses is an anomalous and undesirable situation. Therefore, the legislator gives separation a markedly pastoral treatment juridically,(3) exhorting spouses to forgive the behaviors that create the separation and, if possible, restore conjugal cohabitation. He avoids consideration of separation as a penalty against a spouse guilty of adultery or harming conjugal cohabitation, instead treating separation as an institution for the prevention of future evils for the innocent spouse and children.

It could not be otherwise, because the concept of separation starts from the basis of a valid marriage. Since separation is a mere suspension of the effects of a normally constituted bond and not in its extinction, it carries in its very essence a natural tendency to rebuild the suspended rights and obligations and restore common life.

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.


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ESCRIVA IVARS  Tit. VII. Ch. IX. Art. 2. Separation While the Bond Remains c. 1151

2. Right-duty to commonality of life

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.


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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.

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.


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ESCRIVA IVARS  Tit. VII. Ch. IX. Art. 2. Separation While the Bond Remains c. 1151

Marriage is a union with meaning and objectives. Conjugal life takes part inside this meaning and these objectives, because it constitutes the development of the marriage on the plane of action. Therefore, conjugal life is naturally designed to achieve goals characteristic of marriage. In this way, these objectives act as the regulating principle of the action of the spouses in the concrete development of married life.

The objectives of marriage involve conjugal rights and obligations, and compliance with these rights and obligations involves given behaviors by the spouses, which is proper, inasmuch as conjugal relationships are relationships of justice, not mere moral obligations. Thus, that behavior, governed by the good of the spouses and the creation and education of children, is regulated by the principles informing married life.

Any conduct that gravely harms the principles informing married life constitutes the situation that serves as a basis for the right to conjugal separation, inasmuch as it involves non-compliance or irregular compliance with conjugal rights-duties.

The basis of the right to separation is the existence of behavior by the other spouse that is seriously detrimental to the principles informing matrimonial life. 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. For a more detailed discussion of these causes, see the commentary on cc. 1152-1153.7

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).


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requires intervention by the ordinary. Therefore, to satisfy the title of the right to separation, there is a dual method: administrative and judicial.

Nevertheless, it is necessary to make an important distinction between de facto separation and de jure separation.

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



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ESCRIVA IVARS  Tit. VII. Ch. IX. Art. 2. Separation While the Bond Remains c. 1151

must be pursued before the competent judge or tribunal, pursuant to the provisions of c. 1673, referred to in c. 1694, who will hear the cause according to the procedure of an oral or ordinary contentious process (cf. 1693 § 1).

In some cases, the legislator subjects the actio separationis of spouses, authorized in cc. 1152 and 1153, to very brief periods of expiration and to express and even implied condonations. If, in the event of a delay, there is a well-founded fear of some danger, the separation may even be exercised unilaterally by the innocent spouse on his or her own authority. Since the bond remains intact, the subjective rights giving rise to the separation action belong to the private sphere of determination of the spouse who suffered the offense, who may be forgiven by the former even if he or she continues to suffer the harm or prejudice involved in cohabitation.

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ESCRIVA IVARS  Tit. VII. Ch. IX. Art. 2. Separation While the Bond Remains c. 1152

1152

§ 1. Licet enixe commendetur ut coniux, caritate christiana motus et boni familiae sollicitus, veniam non abnuat comparti adulterae atque vitam coniugalem non disrumpat, si tamen eiusdem culpam expresse aut tacite non condonaverit, ius ipsi est solvendi coniugalem convictum, nisi in adulterium consenserit aut eidem causal dederit aut ipse quoque adulterium commiserit.

§ 2. Tacita condonatio habetur si coniux innocens, postquam de adulterio certior factus est, sponte cum altero coniuge maritali affectu conversatus fuerit; praesumitur vero, si per sex menses coniugalem convictum servaverit, neque recursum apud auctoritatem ecciesiasticam vel civilem fecerit.

§ 3. Si coniux innocens sponte convictum coniugalem solverit, intra sex menses causam separationis deferat ad competentem auctoritatem ecclesiasticam, quae, omnibus inspectis adiunctis, perpendat si coniux innocens adduci possit ad culpam condonandam et ad separationem in perpetuum non protrahendam.


§ 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: -

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ESCRIVA IVARS  Tit. VII. Ch. IX. Art. 2. Separation While the Bond Remains c. 1152

COMMENTARY
Javier Escriva Ivars

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.


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By penalizing adultery, the legislator is directly protecting the very status of the defrauded spouse in his or her faith, inasmuch as adultery violates the most unique obligation of marriage, fidelity related to the specifically conjugal acts. It is protecting not so much the personal dignity of the innocent spouse, as much as the specific marital dignity of the innocent spouse; it is protecting the spouse precisely because s/he is a spouse. Adultery extinguishes first the obligation of conjugal sexual intercourse and consequently the obligation of cohabitation.

The other causes of separation are established to the extent that they represent a threat to the spouse as a person and directly affect the obligation of cohabitation, involving the potential danger that that cohabitation could pose to the body or soul of the spouses.

The spouses must keep faithful to each other. The duty of fidelity involves the exclusivity linked to the conjugal act and the demand to be "one taro," namely a unity in the masculine and feminine natures of the spouses. Adultery always involves an injustice, a lack of due faith and an adulteration of the communion of persons in which the spouses have evolved by virtue of a valid conjugal pact.

A mere carnal union, even occurring just once, is sufficient for adultery, without a system of stability or frequency in relations with the same person (concubinage) being necessary.



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

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bond due to the supposed death of the other spouse, and therefore believed that the sexual act was merely fornication.

Moreover, there is no adultery if a married person is sexually assaulted by physical force. It has been argued whether, in cases of rape, the adultery could be considered formal if the spouse did not fight the assault due to grave fear. Because formal adultery is a product of a free will decision, then if the fear is grave, for juridic purposes it would be material, but not formal, adultery.

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.

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In the cases of consent and provocation, the personal injustice that adultery constitutes ceases to exist, since there is mutual consent between the spouses. In the event that the innocent spouse also commits adultery (compensation), the personal injustice also disappears, because there is a correlation in violating the conjugal fidelity on the part of both spouses. Lastly, the right to separation is extinguished when the innocent spouse forgives the guilty party, expressly or tacitly (condoning).

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.


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c) Compensation of adulterers (c. 1152 § 1)

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.


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adultery, the pastoral tone with which the legislator begins c. 1152 encourages the offended spouse to grant forgiveness, moved by Christian charity and taking into account the good of the family.

Forgiveness must be spontaneous and involve knowledge of the adultery on the part of the condoning party. This condoning can take place expressly, tacitly, or assumably (c. 1152 § § 2 and 3).

There is express forgiveness when the offended party manifests it through words or equivalent signs. For adultery to be tacitly forgiven, it is necessary that the innocent party knows of the spouse's adultery, continues cohabitation without coercion, and resumes marital relations, not mere cohabitation. Condoning is presumed if, for six months after the innocent party learns of his or her spouse's adultery, the innocent party continues in conjugal cohabitation without having resorted to the ecclesiastical or civil authority. The presumption allows evidence to the contrary.

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.

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1153

§1. Si alteruter coniugum grave seu animi seu corporis periculum alteri aut proli facessat, vel aliter vitam communem nimis duram reddat, alteri legitimam praebet causam discedendi, decreto Ordenarii loci et, si periculum sit in mora, etiam propria auctoritate.
§ 2. In omnibus casibus, causa separationis cessante, coniugalis convictus restaurandus est, nisi ab auctoritate ecclesiastica aliter statuatur.


§ 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 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.


SOURCES: § 1: c. 1131 § 1; CodCom Resp. 111, 25 iun. 1932 (AAS 24 [1932] 284) [See transcriber's note at bottom] § 2: c. 1131 § 2

CROSS REFERENCES: c. 1152

COMMENTARY
Javier Escriva 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).


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it has come to be identified with inducement to sin. This interpretation was supported in c. 1131 of the CIC/1917 by the words grave seu animae, which were interpreted in a theological sense. Although the expressions grave seu animae (c. 1131 of the CIC/1917) and grave seu animi (c. 1153 § 1) can be understood in various senses, this cause for separation has come to be identified with protection of the Catholic faith of the spouse and children. This may be because other values are safeguarded by the causes for separation that protect the temporal good of the person or peaceful cohabitation, as indicated by Bernardez. (2)

There is grave spiritual danger when a spouse expressly or tacitly, positively and repeatedly incites his or her spouse or children to commit grave sins, or prevents them from meeting their religious obligations.

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.

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.


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that governs the institution of marriage. For lawful separation, the situation that is contrary to conjugal life must be a fault or irremediable through other means.



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.


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Malicious abandonment is differentiated from other causes of separation in that, while causes expressly defined in the CIC contemplate positive conduct - "occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult" - malicious abandonment contemplates noncompliance with every conjugal duty. The party abandoning his or her spouse violates his or her matrimonial duties, that is, he or she fails to comply with the principle foedus nuptiale servandum est, because the spouse's attitude consists precisely of a dissolution, in the sphere of social reality, of the conjugal consortium.

Malicious abandonment constitutes a cause for temporary separation, based on a principle distinct from those that are the basis in other causes of temporary separation: violation of the principle foedus nuptiale servandum est. While the criterion for admissibility of a factual situation as a cause of separation is none other than that of implying a clear and unequivocal violation of one of the five principles informing married life (see commentary on c. 1151, 2), and cc. 1152 and 1153 are deduced from an analysis thereof, malicious abandonment is defined as the break-up of the conjugal consortium on the plane of social reality.

With the concept of malicious abandonment, one is not seeking separation, because in fact it already exists; nor is there danger to the spirit or body of the other spouse, which can be involved in cohabitation, in that there is no longer cohabitation. 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.

Because of its importance as a cause for separation, which requires fault on the part of the absent spouse, jurisprudence indicates the following requirements for malicious abandonment:

a) Abandonment or separation of fact. There must be de facto abandonment or separation. Abandonment is understood to exist if the spouse leaves the conjugal domicile or prevents the other spouse from entering it.

b) Intent to disavow the fulfillment of conjugal duties. The departure from the conjugal domicile must take place with the desire to abandon compliance with conjugal rights or obligations. A temporary absence to fulfill a lawful and reasonable objective does not constitute malicious abandonment.

c) Without just cause. There must not be any just cause for the unilateral decision to depart from the conjugal domicile.

In short, the concept of malicious abandonment is the procedure to convert a de facto separation unjustly created by one of the spouses into a de jure separation.

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5. Form of establishing temporary separation (c. 1153 § 1)

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.

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1154

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

COMMENTARY
Javier Escriva Ivars

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

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.

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1155

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.(1)

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.


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of common conjugal life arises from very many factors. If the common conjugal life in the strict sense can be altered in all or some of its integral positions, i.e., total or partial separation; if total separation has diverse juridical meaning according to causes arising from adultery or other reasons; and if, from a formal point of view, in both permanent and temporary separation, it establishes a triple differentiation judicial, conventional, or unilateral-then a later restoration of the common conjugal life will have a specific character under each one of the following assumptions:



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.

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d) Impossibility of restoration of common conjugal life

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.

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If the separation occurred by a spouse's own authority, without intervention of the ecclesiastical authority, it is understood that the restoration of common life must take place as soon as the cause that gave origin to the separation has ceased.

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.



[Mary's Advocates' Note] Canon number 1153 describes the legitimate reasons for separation besides adultery. This Exegetical Commentary provides the source for each code; one of the sources for this code is canon number 1131 of the year 1917 code. The earlier Codes provided a more explicit list of legitima causa. Though not enumerated explicitly in the 1983 Codex, canonical discipline continues to refer to this list as the legitimate reasons for a party to separate. Causes listed in the 1917 Codes are:
(1)  The other party joins a heretical sect;
(2)  The other party educates the children as non-Catholics;
(3)  The other party leads a criminal and despicable life;
(4)  The other party threatens great bodily harm to the one separating;
(5)  The other party threatens great spiritual harm to the one separating;
(6)  The other party uses cruelties or other means to make conjugal life excessively difficult (nimis difficilem).
The basic premise of law as enumerated in the 1983 Code of Canon Law is that legitima causa exists if a real and imminent threat of bodily or spiritual harm to the innocent party or to children exists. In an interesting case adjudicated by the Roman Rota (30 June 1928), the Apostolic Tribunal declared that NO separation was granted though the woman allegedly bore the man a “deadly hatred.” The evidence proved the presence of “constant” quarrels, disagreements, and even the use of extremely vile language, but it did not prove that this posed a real and imminent threat of bodily or spiritual harm.




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