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Insight: Canonical grounds for marital separation in the Catholic Church

Canonical Grounds for Marital Separation

In a recent viral video which was making rounds on social media, a couple could be seen fighting. The man had in his hand a pressing iron, which he used to attack the woman. It was a despicable video, knowing the kind of harm this attack could cause. A friend of mine saw this video, and asked my view on such domestic violence. I knew her question in fact was, “What does the Church say in such circumstances?” I promised to respond to her, and that is what I will attempt to do in this piece.

No Divorce in the Catholic Church
As at now, both Catholics and non-Catholics know that there is nothing like divorce in the Catholic Church. This is because we hold that the Author of marriage is God Himself, and Jesus says, “Therefore what God has joined together, let no one separate” (Mark 10:9). You may watch my video on “The Essential Properties of Marriage” for more teachings on unity and indissolubility.

The above having been said, there are situations in which the Catholic Church can grant annulment or allow separation of spouses. Annulment may be analogous to divorce, in the sense that when an ecclesiastical tribunal grants it, there is no way of the married parties coming together as husband and wife. Separation, on the other hand, may be considered a temporary measure with the hope that the married parties may come back together and live as husband and wife.

Adultery as a Ground for Separation
Canon 1152 deals with adultery as a ground for separation. In other words, separation is based on certain canonical grounds. It does not lie within the power of either of the spouses to decide on the grounds for separation. The law has given us those grounds, and we shall examine them. Canon 1152 has three paragraphs and we shall discuss them one after the other.
Can. 1152 §1 states,
“Although it is earnestly recommended that a spouse, moved by Christian charity and concerned for the good of the family, not refuse forgiveness to an adulterous partner and not disrupt conjugal life, nevertheless, if the spouse did not condone the fault of the other expressly or tacitly, the spouse has the right to sever conjugal living unless the spouse consented to the adultery, gave cause for it, or also committed adultery.”
This very first paragraph makes it clear that adultery gives the innocent partner the legitimate ground to effect a separation. Even though the innocent spouse has this right, the canon earnestly recommends that “moved by Christian charity and concerned for the good of the family” he or she should “not refuse forgiveness to an adulterous partner and not disrupt conjugal life.”
This shows how the Church wishes that families should always stay together. In fact, Canon 1151 states that, “Spouses have the duty and right to preserve conjugal living unless a legitimate cause excuses them.” That means, under normal circumstances, husband and wife should always live together.

One of the legitimate causes that can lead to the separation of husband and wife is adultery as mentioned in Canon 1152 §1. John P. Beal et al, citing other authorities, state, “Only actual adultery, i.e., a completed act of sexual intercourse with a third party, gives rise to the innocent spouse’s right to separation.”

Let us have a closer look at paragraph one, because the right of the innocent spouse to effect the separation is also based on certain conditions. I will state them in two points:
1. If the innocent spouse “did not condone the fault of the other expressly or tacitly.” (Paragraph two will tell us what is “tacit condonation.”)
2. Unless the innocent spouse did not consent to the adultery, gave cause for it, or also committed adultery. (We know of situations where spouses commit adultery as a revenge to the adultery committed by the other spouse. In that case, the “revenge adultery” cancels out the other adultery, so to speak.)

Canon 1152 §2 states,
“Tacit condonation exists if the innocent spouse has had marital relations voluntarily with the other spouse after having become certain of the adultery. It is presumed, moreover, if the spouse observed conjugal living for six months and did not make recourse to the ecclesiastical or civil authority.”

We already know that to condone means to accept a behaviour which is considered morally wrong or offensive. That notwithstanding, John P. Beal et al try to make an important correction here. They assert that the decision to translate the Latin condono as “condone” in English is unfortunate and misleading. They say, “In contemporary English, ‘condone’ denotes ‘pardon’ or ‘overlook’, but it also connotes vague approval or at least indifference.”
What the canon under review does is to tell us what “tacit condonation” means. The innocent spouse in the case of adultery loses the right to separation if he or she expressly, or even tacitly, condoned or pardoned the act.

So, as it stands, when the innocent spouse voluntarily engages in marital relations with the other spouse, after having become certain of the adultery committed, it is deemed as tacit condonation or pardon. Even though he or she did not expressly ask the other spouse to commit adultery, by overlooking it and voluntarily having marital relations with him or her is deemed as having condoned or pardoned tacitly. Based on this, the innocent spouse loses the right to effect legitimate separation.

Again, tacit pardon is presumed in a case in which the innocent spouse continued conjugal living for six months after becoming aware of the adultery without making a recourse to the ecclesiastical or civil authority for separation. Can the innocent spouse unilaterally initiate a separation?

Canon 1152 §3 states,
“If the innocent spouse has severed conjugal living voluntarily, the spouse is to introduce a cause for separation within six months to the competent ecclesiastical authority which, after having investigated all the circumstances, is to consider carefully whether the innocent spouse can be moved to forgive the fault and not to prolong the separation permanently.”

This canonical provision shows that the innocent spouse can unilaterally sever the conjugal living. That notwithstanding, he or she must take it a step further by formally approaching the competent ecclesiastical authority within six months for a formal or official separation.

The competent ecclesiastical authority, on his part, has the responsibility of investigating all the circumstances. It is possible he may find out that the innocent party has a case, in spite of that, the competent ecclesiastical authority must try to appeal to him or her to forgive the adulterous spouse, and not to prolong the separation permanently.

This shows, once again, as said above, that “the Church wishes that families should always stay together.” Common life is important to family life.
So far we have looked at adultery as the canonical grounds for separation. Are there other grounds?
Other Grounds for Separation
Canon 1153 gives other canonical grounds for separation. It has two paragraphs, and we shall handle them one after the other.

Can. 1153 §1 states,
“If either of the spouses causes grave mental or physical danger to the other spouse or to the offspring or otherwise renders common life too difficult, that spouse gives the other a legitimate cause for leaving, either by decree of the local ordinary or even on his or her own authority if there is danger in delay.”
Unlike Canon 1152 which mentioned specifically adultery as a cause for a legitimate marital separation, Canon 1153 §1 gives room for a wide range of actions and inactions of one of the spouses which can cause a grave mental or physical danger to the other spouse or to the children, or render common life too difficult.

It would be difficult to list all those endangering actions and inactions here. This means that each case would be handled on individual basis.
Based on the authority of this Canon, we can safely state that in a situation of domestic violence which “causes grave mental or physical danger to the other spouse or to the offspring or otherwise renders common life too difficult”, the innocent spouse has the legitimate cause to leave. How does he or she leave? Two ways.

One, by reporting it to the local ordinary, let us say the bishop, and receiving from him a decree of separation. Before granting the decree, the bishop will bear Canon 1695 in mind, which states,
“Before accepting the case and whenever there is hope of a favourable outcome, the judge is to use pastoral means to reconcile the spouses and persuade them to restore conjugal living.”

Two, the innocent spouse can also leave on “his or her own authority if there is danger in delay.” The proverb says, “A stitch in time saves nine.” Human life is precious and it must be preserved at all costs.

Duration of Separation
It must be noted that separation does not dissolve the matrimonial bond. In other words, separated spouses are still legally married. They may be separated, but their matrimonial bond is preserved.
Can. 1153 §2 states,
“In all cases, when the cause for the separation ceases, conjugal living must be restored unless ecclesiastical authority has established otherwise.”

This canonical provision clearly shows that marital separation is not intended to be permanent, like annulment. In that case, when the cause of the separation ceases, it is expected that common life would be restored. That notwithstanding, the law gives the ecclesiastical authority the power to prolong the separation even after the original cause for it has ceased.

Authored by Rev. Fr. JP TINDANA
(Accra, Ghana)

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