Separation of the Spouses: a canon lawyer's opinion

This is an obscure topic, but one that I see every few years on social media.  It illustrates what I often say, which is that canon law is not rocket science or brain surgery but is one of the "a little knowledge is a dangerous thing" disciplines.  People who have no formal training in canon law and who then have not applied that knowledge and gained further training and expertise by serving in the Catholic Church's courts (tribunals) are really out of their depths on this.

At this point I've encountered about a dozen or so people -- in person and online -- who claim that their spouse failed to get the permission of the bishop for a divorce before or when the spouse left, and that as such the departing spouse is guilty of grave sin and/or is excommunicated.  There is at least one website that keeps promoting this idea, that a bishop's permission is necessary to file for divorce.  These people often cite Church laws which are no longer in effect regarding civil separations.  In particular, they refer to a certain Article from the Third Plenary Council of Baltimore (1884), now in legal desuetude, that said that Catholics were not to seek a separation from civil courts -- a civil separation "from bed and board," not a divorce -- without consulting Catholic Church authorities first.  According to Article 126, Catholics joined in marriage "...are not to go to civil tribunals to obtain a separation from bed and board without consulting ecclesiastical authorities.  He who attempts this should know he incurs a grave charge {offence} upon himself and is to be punished according to the Bishop's judgment" ("...ne inconsulta auctoritate ecclesiastica, tribunalia civilia adeant ad obtinendam separationem a thoro et mensa. Quod si quis attentaverit, sciat se gravem reatum incurrere et pro Episcopi judicio puniendum esse").  [The word "reatum" is used -- an offense or charge -- but not "peccatum" -- sin.]

It did not specify what the punishment should be, but left it up to the bishop, if the situation ever even made it to his desk.  Therefore, in addition to all other vitiating or obsolescing factors, lacking a specific punishment like an interdict or excommunication, the notion of punishment in this regard no longer holds any canonical weight or force.

In some legal systems, "separation from bed and board" is called a "divorce from bed and board" -- but this is not the same as a divorce in the general sense that we are familiar with in the common law legal system of the United States of the civil effects being ended between the parties (the primary civil effect being that one's spouse is no longer first in line to inherit one's assets if one dies).  This provision of the Third Plenary Council of Baltimore was suitable for the times, and still has hortatory value, given that many Catholic spouses today seem to simply give up on a marriage -- at about the same rate as the general non-Catholic population.  

But, similar to so many other provisions of Baltimore III, some of great importance and others now deemed trivial -- like the "absolute obligation" of each parish pastor to establish a parochial school as well as the obligation of Catholic parents to send their children there (and the schools were to be free or of minimal tuition), and the requirement that priests' suit jackets were to reach at least to their knees -- it is no longer binding.  Arguments about what provisions would still exist despite the 1917 and 1983 Codes are not relevant.

This is where the concept of the "ius vigens" comes in:  the current laws now in effect, which supplant older laws -- though often in reality the current laws are simply an updated expression or partial modification of older laws.  At any rate, the phrase "is not to go to civil courts for a {therefore obviously civil} separation without consulting ecclesiastical authorities," has in some people's minds become, "must have bishop's permission to divorce."  Clearly, this is incorrect and a complete misreading of the original provision of Article 126, which is now in legal desuetude anyway.  It was written at a time when even the canonical form of marriage had yet to be universally established (Ne Temere, 1908).

Mostly they seem to want their former spouses punished by the Church, and especially to be refused Holy Communion.  They regard the departing spouse's actions as sinful, and therefore the spouse -- unrepentant in their eyes -- should be denied the Eucharist.  There are, of course, people who approach the Eucharist unworthily.  Many people who are poorly catechized approach the altar having committed sins "with or without full knowledge," as expressed in the exquisite prayer of the Maronite Catholic liturgy.  Worthy reception of Holy Communion is an issue in our times, but canon lawyers are not hovering at the back of the parish church waiting to apprehend people who unjustly leave their spouses.

If a person's marriage has unraveled and the couple themselves, plus their respective families of origin, their other relatives and friends, their marriage counselors, their parish priests and fellow parishioners have been unable to get things back on track, a bunch of canon lawyers and even (or especially?) their own bishop are probably not going to be able to intervene and rectify matters for them, where everyone else has failed, and enact the kind of justice that some of these people seem to want. 

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This is my best attempt at this, and even I walk a tightrope on this topic as a Rome-trained canon lawyer who has served as both a first and second instance tribunal judge as well as a first and second instance defender of the bond over the last 13 years.

The key difference is that of civil divorce versus civil separation.  It is even incorrect to say "civil divorce" in this context, because there is no "ecclesiastical divorce" (pace the people who say an "annulment" is merely this kind of divorce -- that topic is for another day).  Divorce is a process of secular laws in countries with the common law legal system (though it certainly exists in countries with the civil law legal system -- there are numerous articles online regarding the differences between the common law and civil law legal systems and their respective origins).

The Code of Canon Law is silent on the topic of divorce.  If you conduct a word-search of the Code, you will not find the word divorce in any variant in any language.

Catholic matrimonial cases (matrimonial "causes" -- causas matrimoniales) belong to Catholic tribunals, but divorce is not a matrimonial case.  Divorce is divorce:  it is the antithesis of a matrimonial case.  In addition to a canonical separation, the matrimonial cases are these, as listed in the Code:  cases of invalidity or nullity of marriage on formal grounds, the cases of invalidity or nullity due to absence or defect of canonical form, the Pauline or Petrine/favor of the faith cases, ligamen/prior bond cases, radical sanation (sanatio-in-radice) cases, cases of dissolution due to non-consummation of a sacramental marriage (ratum sed non consummatum), with additional cases of invalidity of a marriage due to failure to obtain delegation or a dispensation when required, and cases of simple convalidation.  There are the additional factors of other impediments (consanguinity, Holy Orders, crime, impotence, and the others mentioned in canons 1083 - 1094).  But all this is to say that "divorce" is not a "matrimonial case."

Divorce is called by the Catechism of the Catholic Church "immoral" and "an offense against the dignity of marriage," and "a grave offense against the natural law," but it also "can be tolerated" if there is no other way to ensure certain legal rights in the civil forum -- and that is typically the case in the United States (see the Catechism, #2382 - 2386), given what our secular laws are like.

Obviously, the vast majority of married people who split up in the US (Catholics included) seek a divorce from the secular courts, not a civil separation.

If it truly is a case of a Catholic seeking to obtain a canonical decree of separation (rather than a civil separation or even a divorce from a secular court), there is debate among some canonists whether a canonical separation can be employed or if it is even applicable outside of the Holy See's Concordat nations.  But in either case, Concordat nation or not, the operative word in the current law in effect (the "ius vigens" of the 1983 Code of Canon Law) is that the bishop "can" decree the canonical separation of the spouses, not "must."  It is optional -- and indeed a party is to go to the civil forum from the start if a civil separation is being sought in countries where ecclesiastical decisions have no civil effects, like in the US. This in itself would seem to indicate that the procedure of canonical separation of the spouses truly is only for Concordat nations (and perhaps the Philippines, which to the best of my knowledge is the last country on earth -- except for Vatican City State -- where divorce remains illegal).  Indeed the lack of familiarity among canonists in common law countries is in part due to the fact that the canons on separation are not applicable outside of Concordat areas -- it's not as if somehow the bishops of these places and their tribunals were ignorant or failing to follow the law:  the Apostolic Signatura certainly lets tribunals know when they are failing to follow or uphold canon law, even though there is not much they can do to directly effect any changes or improvements.  For example, a number of tribunals in the US have received comments from the Signatura after submitting their annual mandatory report that, "it is noted that at your tribunal there were no appeals lodged by the defender of the bond in some years," or "it has been noted that no negative sentences have been issued in the last ten years" (and I personally recall one nullity case where "Error of Person" was used as a caput nullitatis -- the Signatura certainly wanted a full explanation of that...!).

Even so, only the innocent spouse can request from the bishop a decree of separation -- only the innocent spouse can become the separating spouse -- and it cannot mean that the person would then go on to seek a divorce from a civil/secular court.  The canons on the separation of the spouses are primarily oriented toward a situation of adultery, and this is clear from how they are written.  These canons never can be used to hound a spouse who has decided to leave common life for one reason or another ("unhappiness" or wanting to "find themselves" or other reasons not related to adultery) by saying, "you never got permission from the bishop." 

Given that only the innocent spouse can become the separating spouse [canons 1152 - 1155] -- it must be for reasons mentioned in these canons, namely, adulterous conduct:  for example, the other spouse repeatedly bringing his or her paramour home and parading this person in front of the children, and/or infecting the innocent spouse with a venereal disease, etc. 

In cases of abuse or violence, a spouse can depart freely anyway -- the Church will not ask anyone to live in a domestic situation where they are in danger.

But let us look at what the law says. 

The first set of laws is about the circumstances which can justify petitioning for a canonical separation while the matrimonial bond remains (canons 1151 to 1155).

The second set of laws is about the procedure for a canonical separation (canons 1692 - 1696).

SEPARATION WHILE THE BOND REMAINS

Can. 1151:  Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them. [The "lawful reason" listed below in these canons is that of adultery.  The "unlawful" reasons to exit common life would perhaps be general unhappiness or wanting to "find oneself" or other reasons -- however, there are no laws which deal with such things:  it is merely a matter of a spouse "unlawfully" leaving common life, for which there is no formal remedy in canon law.  If a spouse does not live up to the obligation to maintain common life because he or she simply wishes to leave, even for trivial reasons, there is nothing that canon law can do.  In such cases, a spouse who wishes to remain faithful to his or her commitment to marriage is in a difficult situation, but not one that can be fixed by canon law.]

Can. 1152 §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 or she has the right to sever the common conjugal life, provided he or she has not consented to the adultery, nor been the cause of it, nor also committed adultery. [Again, this is about a truly innocent spouse whose husband or wife has committed adultery.]

§2:  Tacit condonation occurs if the innocent spouse, after becoming aware of the adultery, has willingly engaged in a marital relationship [conjugal relations] with the other spouse; it [condonation or resuming conjugal relations despite the adultery] 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. [An innocent spouse whose husband or wife committed adultery and has ceased conjugal relations, and cannot pardon the offending spouse and/or resume conjugal relations, is to petition for an ecclesiastical separation -- HOWEVER, the procedures of the next set of canons on separation -- cc. 1692 - 1696 -- apply here; see below.]

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. [In cases where one spouse endangers the souls or bodies of the other spouse and/or the children, or makes common life "unduly difficult" -- these are the other "lawful reasons" for leaving common life under the same roof, but these reasons, no matter how lawful, do not constitute a right to file for divorce.  Again, the Code of Canon Law is silent on divorce.  It is the Catechism which describes divorce.]

§2:  In all cases [in all actual cases of canonical separation decreed by ecclesiastical authority], when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority. [This presumes that ecclesiastical authority has in fact been asked to intervene by the innocent spouse and an actual case of canonical separation of the spouses exists, and the relevant church authority has issued a determination regarding the separation of the spouses, and in that determination has expressed certain provisions, whatever they might be.  But if an actual canonical case of spousal separation does not exist -- that is, if the innocent spouse did not petition for a separation or if he or she did submit a petition but did not receive permission to separate -- then this canon is moot.]

Can. 1154:  When a separation of spouses has taken place [again, this is regarding an actual canonical case of separation of the spouses which was petitioned for by an innocent spouse and where the separation was decreed by proper ecclesiastical authority], provision is always, and in good time, to be made for the due maintenance and upbringing of the children.

Can. 1155:  The innocent spouse may laudably readmit the other spouse to the conjugal life, in which case he or she renounces the right to separation.

Here is the second set of separation canons, which have to do with procedures.

CASES OF SEPARATION OF SPOUSES

Can.  1692 §1:  Unless other provision is legitimately made in particular places, a decree of the diocesan bishop or a judicial sentence can [not "must"] decide the personal separation of baptized spouses according to the norm of the following canons.

§2:  Where an ecclesiastical decision has no civil effects [e.g., in the United States] or if a civil sentence is not contrary to divine law [e.g., if the civil sentence of a separation from a civil/secular court would claim that matrimony is not a sacrament among the baptized], the bishop of the diocese of the residence of the spouses, after having weighed the special circumstances, can [not "must"] grant permission to approach the civil forum [FOR A CIVIL SEPARATION -- as we are still talking about civil separation and not about divorce, and certainly not "permission for divorce"].

§3:  If a case concerns only the merely civil effects of marriage, the [ecclesiastical] judge, after having observed the prescript of §2, is to try to defer the case to the civil forum from the start [again, this means in the United States, and for a CIVIL SEPARATION, not a divorce -- the civil effects of a civil separation from a civil/secular court would be those pertaining to inheritance, financial support or insurance and pension, etc.].

Can.  1693 §1:  Unless a party or the promoter of justice requests the ordinary contentious process, the oral contentious process is to be used [FOR ACTUAL CASES OF CANONICAL SEPARATION].  §2. If the ordinary contentious process has been used and an appeal is proposed, the tribunal of second grade, observing what is required, is to proceed according to the norm of ⇒ can. 1682, §2.

Can.  1694:  The prescripts of ⇒ can. 1673 are to be observed in what pertains to the competence of the tribunal.

Can.  1695:  Before accepting the case [THE CANONICAL SEPARATION CASE] and whenever there is hope of a favorable outcome, the judge [who has to be petitioned by one of the parties -- indeed by the innocent spouse only -- as the ecclesiastical judge can't just jump in on his own] is to use pastoral means to reconcile the spouses and persuade them to restore conjugal living [that is, before a petition for a canonical separation is accepted, and obviously long before any thought of one or both of the parties about a divorce, the judge is to see if the innocent spouse is willing to forego petitioning for a canonical separation and continue with or resume common life].  [And one more time, only the innocent spouse can petition for this -- only the innocent spouse can become the separating spouse].

Can.  1696:  Cases concerning the separation of spouses also pertain to the public good; therefore the promoter of justice must always take part in them according to the norm of ⇒ can. 1433.  [This presumes, once again, that there is an actual canonical case -- that is, a petition from an innocent spouse for separation, which has been accepted by the bishop personally or via his diocesan tribunal -- and only then does a promoter of justice become involved.]

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The moral of the story is that non-canonists should not attempt to offer canonical opinions or assertions when even seasoned canonists hesitate to do so.  And Catholics should not accept canon law advice or opinions from non-canonists.  

After repeated contact and (admittedly futile) conversations with some of the people who kept insisting that their spouse failed to get the bishop's permission for divorce, and consequently should be excommunicated or otherwise punished, in some cases it began to be clear why the person's husband or wife departed common life.

Among the incorrect statements and opinions out there on the internet by non-canonists, once in a while a real howler turns up just to lighten the mood -- as below.  "Divorce a grave sin -- needs bishop’s permission," is one of my favorites.  

I wonder what other grave sins would I need the bishop's permission for...