"Conflict, quarrels, and misunderstandings can be found in all marriages. They reflect the impact of Original Sin, which 'disrupted the original communion of man and woman.'"
"Blameless, unhappy situations not only fail to constitute reason for suspension of the right and obligation to common life in its sense of solidarity and of sharing, but they also represent cases in which one of the ends of marriage, mutual assistance, must manifest itself in all its width and depth"
"Unbearable Cruelty Which Renders Conjugal Life Insupportable [is a ground for temporary separation ...] The Latin term saevitia means excessive or unbearable cruelty, harshness, extreme severity, fierceness, and barbarity. What is called cruelty, by way of travesty, in modern divorce courts could not be viewed as saevitia, in the sense of canon 1131 §1. Hence, the so-called incompatibility of temperament, divergence of views, and the like would not be considered sufficient to invoke separation."
"'It is not right that separation take place for light inconveniences, even though these are repeated, for example, incompatibility of temperament; for even more serious quarrels, arising from unusual anger and unexpected perturbation, do not exclude hope of an early reconciliation; nor, a fortiori, or just censure and correction [...] all these do not ring with a serious injury or gray fair to us steadfast soul.'"
"There is an important decision of the Roman Rota, issued by Cardinal Lega as Dean, which takes to task several modern the moral theologians for their lax stand in permitting spouses to remain separated when they have done so for light reasons... [L]ight injuries and cruelties or mere incompatibility of temperament of the spouses cannot be held as sufficient reason for their separating"
"Frequent quarrels, in themselves, are not regarded by the Holy See as a 'just cause' even for a temporary separation, as is 'Clearly seen from a decision of the Rota in the year 1928 [citing Florazak]. In this case the alleged cause in modern parlance would have been termed 'incompatibility of temperament,' and would no doubt have supported a 'divorce' decree in almost any modern civil tribunal. The married life of the elderly couple had been marked by frequent quarrels and almost continual unhappiness. It was the contention of the petitioner that 'implacable hatred' (odium capitale) existed on the part of the wife. The decision, while recognizing that the wife bad used opprobrious language towards her husband, declared that the use of such language did not prove the existence of 'implacable hatred,' but only proved her anger towards him because of his conduct. The Sacred Rota declared that the frequent quarrels were due to avarice rather than 'implacable hatred,' and refused to grant a temporary separation inasmuch as a 'just cause' was not present."
"[L]ight injustices from abusive words or the incompatibility of the personalities of the spouses which make
cohabitation troublesome cannot be considered as sufficient causes to separate the spouses"
Innocent party Petition the Bishop to Entreat an Abandoner to Return
"[T]he competent ecclesiastical authority will cite the spouses with the finality of implementing the pastoral means of agreement and conciliation, in order for the conjugal life to be reestablished peacefully, according to the prescript of can. 1695"
"One may initiate a judicial action not only for a decree of separation but also for the determination of the individual canonical effects. There is also place for court actions that seek to re-establish the unity of conjugal life, or to declare unlawful a separation already instituted (page 90). [...] The case may very well be pleaded for the restoring of cohabitation after a separation has been pronounced but the cause is alleged to have ceased" (page 105). [...] [The Defendant] has a right to the common life from the marital contract, and a consequent right therefore to defend himself by whatever judicial weapons are at hand in opposition to a separation action brought against him" (page 79).
"But long separations for trivial reasons or none at all are the concern of the church. The injured spouse has the right to petition the public ecclesiastical authority to force the return of his partner who has departed for an unjust reason."
"In a case of desertion, permission for separation is not to be granted at once. The deserting consort should be entreated to return."
"[T]he obstinate refusal to establish the conjugal partnership after the invitation of a judge is a legitimate cause for pronouncing separation."
Roman Rota Decision S.R. Rotae Dec
. V (1913). Dec. XIX
, pp. 217-225. Par. 5. [English Perathoner.
Mar. 17, 1913]
Temporary vs. Permanent Separation
An ecclesiastic authority shall objectively assess and determine the cause, the duration, and the effects of the separation.
"[C]auses for temporary separation [...]: malicious desertion, intolerable hardships imposed on one spouse by the other, joined with hardened aversion or hatred; very grave loss of temporal goods; danger threatening the wife's fortune, if the only means of removing the danger is separation; an extremely avaricious and niggardly character which makes life unbearable; and excessively extravagant tendency to squander money to the detriment of the fortune of the other. There would be no particular advantage gained from further speculation as to possible causes. No complete listing would be possible" (page 128-129)
"It is possible that the separation was granted for a definite, limited period of time. If this is the case, then there is an obligation on the part of both spouses to begin living together as soon as the time has elapsed. [...]In a case in which separation was granted for an indefinite time, the innocent spouse is under no obligation to begin common life again with the guilty partner until there is a new decree from the Ordinary stipulation that the cause has ceased and that the parties must reconcile. The canon makes this provision in order to assure that the innocent party will not be compelled to restore the community of life unless there are sure signs of amendment on the part of the guilty spouse" (page 142)
Gumbleton, Thomas J.Separation and Divorce
A Comparative Study of the Code of the Canon Law of the Catholic Church
and the Civil Law of the State of Michigan. Pontifica Universitas Lateranensi
"The common action in this matter is a petition for canonical recognition of the right to separation from an errant consort for a just cause. This action may look to a permanent or temporary separation, and in the later case for a determinate or indeterminate period of time. In the matter of a just cause, it is noteworthy that although adultery is the only cause for permanent separation, the causes for a temporary separation as enumerated in Canon 1131, §1, are not to be considered an exhaustive list. [...] It is considered helpful , therefore, to consider causes for temporary separation under the general classification of : (a) spiritual unfaithfulness; (b) grave moral danger, and (c) grave physical harm."
"Adultery is the only ground for perpetual separation; all the others are a basis for temporary separation only. This crime gives the innocent consort the right to live forever apart from the guilty one. In cases of separation for other grounds, when the reason for separation ceases, the separation must likewise come to an end. The Ordinary or ecclesiastical judge in his decree or sentence, may grant separation for other causes besides adultery, for certain or definite periods of time, e.g. six months. He may also grant permission for the spouses to separate for an uncertain or indefinite length of time, e.g. until revocation by himself of his decree, or until cessation of the reason for which the separation was granted. In these cases, marital life must be resumed when the period of time has elapsed, when the Ordinary revokes his decree, or when the cause has ceased."
"When the case is completed, the decision of the Ordinary is embodied in a formal decree, granting or refusing permission for separation. [...] The decree should clearly state whether the separation is to be permanent or temporary. And here it must be recalled, that only cases of adultery or equivalent crimes authorized permanent separation."
Custody of Children
"If both of the spouses are Catholic, it is most likely that the innocent spouse would see to the Catholic education of the children most effectively."
Gumbleton, Thomas J.Separation and Divorce
A Comparative Study of the Code of the Canon Law of the Catholic Church
and the Civil Law of the State of Michigan. Pontifica Universitas Lateranensi. 1964. page 143.
"The unfortunate yet so important effect of a separation action is the proper determination of the custody of children. Here the law is clear and expressive; despite the necessity of civil recognition, which may be to the contrary, the ecclesiastical judge must attempt the observance of these provisions as far as possible. Canon 1132 grants the guardianship of the children to the innocent party as a general rule."
"It is a general principle of law that, after separation, that children are to be given in custody to the innocent party. This rule is the enumerated by the Roman law. [...] If the father were the cause of the separation, the children were to be raised by the mother at the father's expense. If the mother were the cause, they were to be raised by the father at the mothers expense, especially in a case where she was wealthy."
A separation decree prevents future evils for the innocent spouse and children.
The judgment decree must include findings for education and support of children. [(Mary's Advocates note) It would give scandal to children and be cruel to a Catholic spouse keeping marriage promises, to give custody to a malicious abandoner with responsibility for children's spiritual and character formation.]
"Father and mother were considered as correlative in regard to the matter expenses. [...] If the husband is the cause of the separation [...] he is bound to support her [the wife] for the rest of her life if the separation is perpetual in the same manner he was supporting her before the separation took place. [...] If the mother were the cause, they [the children] were to be raised by the father at the mother's expense, especially in a case where she was wealthy."
Being the cause of a marital breakup, does not relieve a party of the obligation to support the spouse keeping marital promises and the children. Contributing to the material good of the children and the dedicated spouse for the duration of their lives is an obligation accepted when promising marriage. See informing principles of marriage.
Grounds for Temporary Separation (not adultery)
Separation is justified by the innocent spouse if the other spouse puts the children or the innocent spouse repeatedly in serious grave danger and separation is the only way to ensure safety;
Grounds for temporary, but not permanent separation: The innocent spouse has a basis for separation from the spouse that commits offenses: heresy, apostasy, educating children as non-Catholics, leading a criminal and ignominious life,
"The Rota holds that all causes no matter what their nature, must have one effect, i.e. danger of grave spiritual or corporal loss"
Malicious desertion is a ground for temporary separation, citing decision of the Roman Rota
"[D]esertion has been adjudged by the S.R. Rota as a cause sufficiently grave to authorize separation for an indefinite period of time."
"[T]he Sacred Roman Rota has recognized among others the following as justifying causes for a temporary separation [...] malicious desertion, done without justification but at the same time with the intention of not returning"
"Specifically, 'modern authors agree that malicious abandonment must be counted' among the many causes 'of temporary separation'. [...] The spouse, whom the other party maliciously abandoned can ask for a separation from bed and table, until the culprit of the desertion has sufficiently proved the ready intention to fulfill the conjugal duties.
[...] not so much that the fact of abandonment is a legitimate cause for pronouncing separation, but rather that the obstinate refusal to establish the conjugal partnership after the invitation of a judge is a legitimate cause for pronouncing separation.
[...] Furthermore, in order that the abandonment may be called malicious it is required that it be unjust and culpable with the intention of destroying the conjugal partnership. Moreover, the abandonment is unjust if it is done without a just cause or without any just pretext. [...] Beyond this, it is required for the notion of malicious abandonment that this culpability and acting unjustly be united with the intention of destroying the conjugal life. For the one who separates with this intention evidently causes an injustice to the abandoned party."
Roman Rota Decision S.R. Rotae Dec
. V (1913). Dec. XIX
, pp. 217-225. Par. 4-6. [English Perathoner.
Mar. 17, 1913]
For malicious abandonment to be a ground for a decree of separation of spouses, "[a] few criteria to be considered here. Malicious abandonment must be unilateral. This assuming the action was taken without knowledge nor agreement of the other spouse. It must also be illicitly objective and subjective. This meaning not only the lack of justified cause regarding one's conduct, but also the clear knowledge of the lack of it by the person executing such action. Intention to dissolve the marital life must exist in the one displaying such action. [...] Judicial stipulation of malicious abandonment in the canonical jurisprudence is a unanimous consideration of autonomous causes for conjugal separation." In a 1985 doctoral dissertation in Spanish on malicious abandonment, with appendix including cases from the Roman Rota, the author made the above statements in her conclusion.
"Malicious desertion is given by authors as a just cause for separation. The reason for this is quia recidit vel in odium capitale vel acerbiores animi affections. In a case of desertion, permission for separation is not to be granted at once. The deserting consort should be entreated to return. For this, all possible means should be employed. If the party fails or refuses to resume conjugal cohabitation within a reasonable or stipulated period of time, the judge may then grant separation to the innocent consort. Ex quibus colligi potest, non tam faqtum desertionis esse causam legitimam ad divortium pronuntiandum, quain potius pertinacem detrectationem conjugal, consortium instaurandi post iudicis invitationem. [(Translation by Mary's Advocates. From these words it can be adduced, not so much that the fact of abandonment is a legitimate cause for pronouncing separation, but rather that the obstinate refusal to establish the conjugal partnership after the invitation of a judge is a legitimate cause for pronouncing separation.]
"Before the desertion can be called malicious it must be proved to be unjust and culpable and done with the intention of severing the conjugal cohabitation. Ulterius ad notionem malitiosae derelictionis requiritur ut haec sit dolosa et iniuriosa coniuncta cum intentione vitam coniugalem solvendi. And whoever leaves his home with the intention of desertion obviously inflicts an injury upon the innocent consort. Such desertion must always be duly proved."
The above quote is from Msgr. William J. Doheny, Dean of the University of Notre Dame's Law School and Advocate and Procurator for the Supreme Tribunal of the Apostolic Signatura, who wrote a two volume set on marriage law in 1944. In Chapter XXVII, "Digest of Cases of Separation Adjudged by the Tribunal of the Sacred Roman Rota," he writes about "Case of Separation for an indefinite period of time granted to wife because of desertion of husband," wherein he explains when malicious abandonment is cause for decree of separation of spouses.
Sanctions and Penalties
With a decree of separation on the ground of malicious abandonment, there is an intent to declare guilty the spouse who has maliciously been absent and to obtain the legal declaration of separation for the one who has been abandoned.
"The silence of the code forces the conclusion that illegitimate separation is not a delict in the strict sense of the law, because no canonical sanction saltem indeterminata has been attached to it. It cannot, then, be grounds for criminal prosecution against the guilty party. The Ordinary, however, can protect and enforce the rights of the innocent party, victim of illegitimate abandonment by the other, with the judicial or administrative sanctions. [...] For principles concerning the nature and gravity of the sin committed by consorts who separate illegitimately as regards cohabitation, the reader is referred to writings of moral theologians" (citing six).
Bishop's Intervention before Party files in Civil Forum
Those who conclude that the Bishop's permission before filing in the civil divorce is only required in countries where a concordat has been adopted between the civil government and the Church, will find eye-opening the transcribed discussions of those drafting the 1983 Code of Canon Law. In the late 70's, there were some who had the opinion that a bishop's intervention before filing for civil divorce should not be part of the universal Canon Law; some thought the requirement should only be implemented in territories wherein the local bishops enact their own law requiring bishop's permission. All the consulters disagreed with those opinions.
"Concerning the opinion of a certain organ of consultation, namely that the title about cases of separation should be suppressed, because the spouses never bring cases of separation to the ecclesiastical tribunal, or the whole question should be referred to particular law. However, all the consultors considered that this title is not able to be absent from the general law, considering the competence of the Church in cases of separation of spouses."
"Can. 1692 §2 seems to require the previous permission of the Bishop of the diocese of the residence of the spouses - perpensis peculiaribus adiunctis - so that the spouses can approach the civil forum."
"Since divorce laws have proliferated in many countries, the need to request the diocesan bishop's authorization is a necessary precaution, which prevents the fostering of trials whose judgments violate precepts of divine law, to the detriment of the spouses and with the risk of scandal to others."
"[T]he Bishop of the place where the party seeking official recognition of the separation is living would be the appropriate ecclesiastical authority whose permission is required [before approaching the civil court ...] A primary concern of canon law is that the case not be related to a civil court if the civil court might result in declaring the dissolution of a valid marriage bond or some other effect contrary to divine law." This statement was from the canon law journal of St. Peter's Pontifical Institute of Theology, in Bangalore India, by Fr. Phillip Brown, JCD. In 2011, Father Brown was appointed Rector of Theological College at the National Seminary of the Catholic University of America. He was President of the Canon Law Society of America in 2013.
"[Canon 1152 §2] does not state that for such an action [filing in civil court] the innocent spouse needs the prior permission of the competent ecclesiastical authority. However, the requirement becomes clear from Canon 1692 §2 [. . . ] This canon speaks about the granting of permission as a particular administrative act issued by a competent executive authority. It means that such a permission is needed for each case. That diocesan bishop has no power to grant a general permission that all separation cases in his diocese will be decided in the civil court. This would be contrary to the provision laid down and Cannon 87 §1 which states that the Diocesan Bishop cannot dispense from procedural laws, that is, laws 'established to safeguard Justice and protect the rights of the faithful.' [. . . ] However there is no need for granting permission in those countries where the supreme authority of the church has decided to by the way of Concordat that cases of separation will be handled by civil court."
"[T]he law has placed an obligation on all spouses to obtain the permission of the diocesan bishop before approaching the civil forum. The process of drafting canon 1692 highlights the fact that it is the diocesan bishop alone who can allow the spouses to approach the civil forum" (from section 2.3.1 — The Norms of the 1983 Codex Iuris Canonici in Light of the Revision Process).
"[A]t least when there is question of an alleged nullity of the marriage, private authority is not recognized as an adequate basis for establishing a legitimate separation."
"Before beginning a suit in the civil courts for separation, Catholics must consult, beforehand, the proper ecclesiastical authorities, even though they previously received from the Church a decree or sentence authorizing separation."
"In some instances the church out of tolerance delegates by concordat her power over separation cases to the civil authority. The civil judge deciding these cases according to the provisions of the Concordat acts licitly and validly, providing nothing is done in them against divine or ecclesiastical law, and the consorts likewise act licitly in submitting their cases to his judgment" (page 203).
"In [English-speaking] countries, a Catholic could petition the civil courts for a divorce under the following conditions, all of which must be verified in a particular case: 1) In every instance the permission of the local Ordinary is necessary in order that a Catholic seek a civil divorce. [...] 4) There must be present a causa gravissima, not only of the private order, but of a public order as well [(Mary's Advocates' note) public order means that the ecclesiastic public authority, i.e. local Ordinary, or his delegate, has affirmed that there is causa gravissima.) [...] The safest procedure would be for the Ordinary to treat all cases of civil divorce petition first as ecclesiastical separation cases"(page 218-220).
"These writers [1885-1909], while not minimizing the great evils of divorce, nevertheless oppose the assertion that it was intrinsically evil and, therefore, never to be permitted. Their treatment consider this matter as never licit unless very grave and proportionate causes were present, as measured by a consideration of the evils and the insecurity afflicting an innocent spouse when there was no civil protection available and by a balancing of the good and evil which would result from divorce. [...][T]his opinion [...] allowed such action [filing for civil divorce] only in those cases in which it was necessary to establish civil effects for an ecclesiastical granted separation. Moreover, it insisted on a grave and proportionate cause and the permission of the ordinary in every instance." (page 147-148).
"The permission of the local Ordinary is necessary requisite for a licit action [filing for civil divorce] in every instance. It is his office to judge the gravity of the reasons for seeking this legal remedy, and it is but reasonable, as a means of preventing the abuses arising from private judgment in this matter, that he, the guardian of faith and morals in his territory, thoroughly familiar with the local civil statutes, should be the authority to issue this permission in worthy cases" (page 155-156).
Legislative Scheme: Canon Law on Divorce. See the canon law principles which together show that a Catholic is not supposed to file for divorce on his own authority, without first getting the permission of the bishop or the bishop's mandated delegate. See the records from Pontifical commission on the reorganization of the code of canon law. See question that Mary's Advocates asked the Council on Legislative Text about conjunction "and"/"or". Legislative Scheme
Copyright Mary's Advocates
Canon Law The legitimate certain cases mentioned in this Catechism paragraph (CCC 2383) are described in the corresponding footnote which cites canon law 1151-1155. Canon law is originally composed in Latin and our current code was promulgated in 1983 after decades of research and input from canonists all over the world. The 1917 code (CIC 1917 (Codicem Iuris Canonici)) was reorganized after the 1959 request of Pope John XXIII. The morally legitimate reasons for separation that were described in the 1917 code in canons 1128-1131 are described in the 1983 code by canons 1151-1155. See canon law 1151-1155.
Decisions from the Roman Rota From Pastor Bonus, Art. 126, "The Roman Rota is a court of higher instance at the Apostolic See, usually at the appellate stage, with the purpose of safeguarding rights within the Church; it fosters unity of jurisprudence, and, by virtue of its own decisions, provides assistance to lower tribunals." Mary's Advocates has a list of Roman Rota Decisions at the bottom of Syllabus, here.
The Catechism of the Catholic Church teaches divorce is immoral and a grave offense against nature. It brings grave harm to the deserted spouse, to children traumatized by the separation of their parents and often torn between them, and because of its contagious effect which makes it truly a plague on society. It is only tolerable in situations delimited in canon law. See CCC #2384, 2385, 2386.
Pope John Paul II's Pontifical Council for the Family recognizes that the dedicated spouse and the children are the ones who end up paying as a consequence of divorce. Children are deprived of a father or mother and condemned to be in fact orphans of living parents. See Council's exact language.
Pope John Paul II's Apostolic Exhortation, Familiaris Consortio, states
"Loneliness and other difficulties are often the lot of separated spouses, especially when they are the innocent parties. The ecclesial community must support such people more than ever. It must give them much respect, solidarity, understanding and practical help, so that they can preserve their fidelity even in their difficult situation;" See Sec 83 Separated or Divorced Persons Who Have Not Remarried
The Catechism also explains, "The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law. If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense." See CCC #2383.
The Catechism makes the distinction between a dedicated spouse and one who through his own grave fault destroys a valid marriage.
See considerable difference. CCC 2386.
Vatican Publishing House, Year 1984, on Canon 1692 "All the separations of the baptized spouses are to be decided either through the administrative process that culminates with the decree of the diocesan Bishop, or through the judicial process, which culminates with a constitutive sentence pronounced by the competent judicial body."
Canon Law Annotated. One can read commentary recommended by the President of the Pontifical Council for Legislative Texts to understand the legitimate cases for separation: adultery, grave bodily harm to the spouse or children, grave spiritual harm to the spouse or children, and desertion. See just reasons for separation. canon 1151.
When a spouse is unhappy, but can't blame the other spouse for adultery, repeated dangerous abuse, or making it impossible for the family to practice their Catholicism, there is no licit reason for separation. See Blameless, unhappy situations fail. canon 1153.
Canon 1152 teaches that if an innocent spouse wants to be separated from an adulterous partner, this is acceptable. However, the innocent party is strongly encouraged to forgive the offender. If both spouses are committing adultery, there may not even be a legitimate cause for separation. Mary's Advocates is not focusing on these situations. See adultery special cases. canon 1152.
Canon 1153 is most important because it lists reasons for separation besides adultery:
Can. 1153 §1 A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a 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.
Exegetical Commentary on Canon Law Anyone who accepted the obligations of Catholic marriage is obligated to maintain an intact home with their spouse. If other causes "grave danger of soul or body" there is a legitimate reason to separate. To justify separation, the offenders action must be grave, such that is it dangerous; it must be repeated; and separation must be the only way to be safe from the danger. See conditions are necessary. canon 1153.
§2 In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority.
If one's spouse is guilty of the grave offenses described above, the family suffers much. If separation is the only way to remain safe, being separated is better than remaining in serious danger.
Exegetical Commentary on Canon Law defines malicious abandoners. There is an intent to declare guilty the spouse who has maliciously been absent and to obtain the legal declaration of separation for the one who has been abandoned. See malicious abandonment. canon 1153.
A separation decree prevents future evils for the innocent spouse and children.
See prevent future evil. canon 1153.
An ecclesiastic separation decree is obtained from either a Roman Catholic Tribunal or Bishop. This authority, designated by couples who choose True Catholic Marriage, shall objectively assess and determine the cause, the duration, and the effects of the separation. See required intervention. canon 1151.
The judgment decree must include findings for education and support of children. Would the canonical tribunal take children from the dedicated spouse and leave the malicious abandoner responsible for children's spiritual and character formation? See must find regarding education. canon 1153.
A canonical decree recognizes the responsibility of an abandoner to continue his or her natural obligations to contribute to the material good of the dedicated spouse and children for the duration of their lives. This is one of the principles one accepts when choosing a True Catholic Marriage bond. See contribution to material good of spouse and children. canon 1151.
Canon Law Annotated.
Those who accept the obligations of marriage as specified in the Catholic understanding of marriage, limit their own options for separation or divorce. Prior to filing for civil divorce, ecclesiastic authorization is a necessary precaution, to prevent civil court judgments which violate divine law. See preventing civil court judgment that violate divine law. canon 1692. This canon specifies that the canonical determination is made regarding a family's particular circumstances. There is also a process for appealing to a higher canonical court in the next canon, 1693.
U.S. Bishops Particular Law 1948
"Moreover, we have in this country particular legislation on this point that" [...] "is still binding on us. It reads: 'We command all (i.e. baptized) married persons that they must not go to the civil courts to obtain a separation from bed and board without previously receiving permission from the ecclesiastical authority. Should anyone attempt this, let him know that he incurs the guilt of grave sin and that he is to be punished as the Bishop shall decide.' LINK Paper includes The Right Reverend Monsignor William J. Doheny, C.S.C., J.U.D., Auditor of the Sacred Roman Rota, for permission to use portions of his "Canonical Procedure, Volume II" in the preparation of this paper.
Advocate of The Signatura Apostolica, 1944 "In cases of temporary separation, the aggrieved consort may not, propria auctoriate [own authority], abandon the obligation of conjugal cohabitation until there is moral certitude about the existence and gravity of the cause and that there is real danger in delay (Can. 1131 §1). In practical cases, the innocent consort should be advised to submit the case to the ecclesiastical authorities by whom an objective and thorough study may be made of the entire matter." page 638.
Doheny, Msgr. William J. , C.S.C., J.U.D,. Canonical Procedure in Matrimonial Cases, Volume II, Informal Procedure. Milwaukee: The Bruce Publishing Company, Copyright 1944. Second Edition 1948.
Dissertations for Doctorate in Canon Law, 1947, 1948, 1952, 1984
Msgr. William J. Doheny, C.S.C., J.U.D, was and advocate and procurator of the Tribunal of the Signatura Apostolica and of the Sacred Roman Rota, Assistant Superior General of the Congregation of the Holy Cross, and Dean of the University of Notre Dame Law School.
Section Six, The Separation of Consorts:
Chapter 25 Proper Canonical Authorization of Separation. p. 618-638
(16.1 Mb) ;
Chapter 26 The Proper Canonical Procedure in Separation Cases, p. 640-653
Chapter 27 Digest of Cases of Separation Adjudged by the Tribunal of the Sacred Roman Rota, p. 654-673
Gibbons, Rev. Marion Leo, C.M., LL.B., B.A, J.C.L.
Domicile of Wife Unlawfully Separated from her Husband, A Historical Synopsis and Canonical Commentary. Washington, D.C.: Catholic University of America, 1947.
Pages 58-91 (4.8 Mb)
Forbes, Rev. Eugene A, AB., S.T.L., J.C.L.
The Canonical Separation of Consorts, An Historical Synopsis and Commentary on Canons 1128-1132. Ottawa, Ontario: The University of Ottawa Press. 1948.
Pages 127-175 (3.3 Mb).
Pages 176-221 (3.4 Mb).
Pages 222-247 (1.9 Mb).
King, Reverend James Patrick, J.C.L.,
The Canonical Procedure in Separation Cases, a Historical Synopsis and a Commentary. Washington, D.C.: Catholic University of America, 1952
Pages 63-135 (13.2 Mb).
Pages 149-158 (1 Mb).
Separation and Divorce: A Comparative Study of the Canon Law of the Catholic Church and the Civil Law of the State of Michigan, Looking Toward a Solution to the Problem of Family Break-up. Rome: Pontificia Universities Lateranensi, 1964.
Pages 120-144(14.6 Mb)
Congregation of the Discipline of the Sacraments, 1936
Provida Mater shows various descriptions of the status of parties relating to nullity proceedings. Some parties have "maliciously deserted" the other party. There are those that are "legitimately separated" and those that are "not legitimately separated." A party has the right to obtain a decree defining parties' status, totally separate from the question of validity of the marriage. (See scanned text pages 313-372, showing Articles 1-240) Promulgated 15 August 1936 by the Sacra Congregatio De Disciplina Sacramentorum. Instructio Servanda A Tribunalibus Dioecesanis In Pertractandis Causis De Nullitate Matrimoniorum. Art. 6. - 1 "malitiose deserta" - 2 "separata legitime" - 3 "etsi a viro non legitime separata"
Auditor Sacred Roman Rota, 1935
When there is a question of nullity, private authority is not recognized as an adequate basis for establishing a legitimate separation. Cited by Gibbons. Sartori, an auditor of the Sacred Roman Rota, had expressed this opinion before the issuance of the Instruction "Provida Mater" of the Sacred Congregation of the Sacraments.
Decision of the Holy Office yr. 1886
"When a Catholic sues for a separation in this country [USA], the Catholic [civil] judge has a right to presume quod 'adsint justae separationis causae judicio episcopi' [there are just reasons for the separation of the judgment of the bishop]. For no Catholic will do so without consulting his or her confessor; and no confessor can permit or advise the institution of such a suit, since such permission is an actus fori externi. The confessor must refer the case to the person's pastor. And the pastor cannot give permission, because all matrimonial causes are causae majores, reserved to the ordinary [Bishop], even to the exclusion of the vicar general, as we have elsewhere shown." (Decision of the Holy Office yr. 1886 (now named Congregation for the Doctrine of the Faith) reprinted in "The Pastor, A Monthly Journal for Priests." page 78-79.)
Third Plenary Council of Baltimore yr. 1885
With the decrees of the Third Plenary Council of Baltimore, the Holy See approved in 1885 particular laws for the United States including Act Number 126, stating that anyone who petitions in the civil forum for separation [including divorce] without the ecclesiastical permission incurs grave guilt and is to be punished through the judgment of the bishop. Mary's Advocates has found no legislation abrogating this entire article, or its partial derogation. Read more in "Mary's Advocates Observations, section "21 Council of Baltimore 1885, Decree No. 126." Also see "A Comparative Study of the Councils of Baltimore and The Code of Canon Law" by John Daniel Mary Barrett, A.M. , J.C.L. Catholic University of America 1932.