DIVORCE
62
DIVORCE
about the limits of its dissolubility. Many facts from
the Uves of the saints, of St. Thecla, St. Cecilia, St.
Alexius, and others, such for example as are narrated
by Gregory the Great (III Dialog., xiv, in P. L.,
XXXIII) "and by the Venerable Bede (Hist Angl.,
xix, in P. L., XCV, 201 sqq.), are proof of the uni-
versal Christian conviction that, even after mar-
riage had been contracted, it was free for either of the
married parties to separate from the other in order to
choose a life of evangelical perfection. Now this
would be a violation of the right of the other spouse if
in such circumstances the marriage bond were not dis-
solved, or at least could not easily be dissolved under
certain conditions, and thereby the right granted to
the other to enter upon another marriage. The pre-
cise conditions under which this dissolution of the mar-
riage bond actually took place, and still takes place,
can only be decided with certainty by the authentic
declaration of the Church. Such a declaration was
made by Alexander III, according to III Decretal.,
xxxii, 2: "After a lawfully accorded consent affecting
the present, it is allowed to one of the parties, even
against the wiU of the other, to choose a monastery
(just as certain saints have been called from marriage),
provided that carnal intercourse shall not have taken
place between them; and it is allowed to the one who
is left to proceed to a second marriage." A similar
declaration was made by Innocent III, op. cit., cap.
xiv. From this latter declaration we learn that re-
ligious profession alone has this effect, and that there-
fore those who wished to practise a life of higher per-
fection in any other manner could be obliged by the
other spouse either actually to choose the religious
state or else to consummate the marriage. Under
earlier ecclesiastical conditions, no long delay was im-
posed upon the other party before entering upon an-
other marriage, because religious profession might be
made without a long nox-itiate. The introduction of a
novitiate of at least one year by the Council of Trent,
and tlie time of three years prescribed by Pius IX and
Leo XIII for simple vows before the solemn profes-
sion, and the general restriction of solemn profession
by the establishment of simple profession, which does
not dissolve the marriage bond, have rendered diffi-
cult the dissolution of unconsummated marriage by
religious profession. So that now it seems practically
necessary that if one of the married parties should
choose the state of evangelical perfection before the
consummation of the marriage, the marriage bond
should be dissolved by papal authority.
2. Dissolution by iite Pope of Marriage not yet Con- summated. — The pope's authority as supreme head of the Church to dissolve Christian marriage not yet con- summated is proved on the one hand from the words of Christ to Peter, Matt., xvl, 19 (see above, under B 2), and on the other, from the dissolubility of such a marriage by religious profession, inasmuch as this pro- fession must be solemn, for according to the declara- tion of Boniface VIII (III Sexti Decretal., xv, c. tmic), solemn vows as such depend entirely upon the ordinance of the Church — "voti solemnitas ex sola constitutione EcclesiiB est inventa". Hence it follows without a doubt that the dissolution of a marriage by solemn profession could never take place without the exercise of the Church's authority. Now if the Church can cause such a dissolution according to a general law, a fortiori she can do tliis in single cases — not indeed arbitrarily, but for grave reasons — because this power has been granted by God to dispense in matters of Divine right, and a delegated authority may not be exercised without a sufficient reason (cf. Wernz, "Jus decretal. ", IV, n. G9S, not. 39). The ac- tual exercise of this power on the part of the popes, which has become constant and general, is a further proof of its propriety and its actual existence. Clear instances occur during the pontificates of Martin V (1417-31) and Eugene IV (1431-47). St. i^jitoninus
tells us that he had seen several Bulls of these popes
which granted such a dispensation or a dissolution of a
marriage that had not been consummated, so that
thereafter they might proceed to a new marriage
(Summa theo!., Ill, tit. i, c. xxi). We can find traces
of such a practice even in much earlier times. A de-
cretal of .Alexander III, namely, IV Decretal., xiii, 2,
seems, according to a probable interpretation, to refer
to a possible concession of such a dissolution. Perhaps
the decision of Gregory II to .St. Boniface, in 726 (see
above under X. 4), might possibly be explained m the
same sense, though it is very imcertain, for it seems
to refer neither to the dissolution of a consiunmated
marriage, as some supposed, nor to the dissolution
of a real marriage that had not been consummated,
but rather to a declaration of invalidity. For
several centiu-ies the exercise of this power of dissolv-
ing such marriages has belonged to the ordinary func-
tions of the Holy See, and is exclusiveh' papal, for the
work of the Roman Congregations in such cases is only
preparatory'. However, exceptional instances occur
when it has been delegated to bishops (Wernz, op. cit.,
n. 698, not. 41). The judicial procedure in such cases
was exactly prescribed by Benedict XH' in his Bull of
judicial procedure ("Dei miseratione", 3 November,
1741 (section 15), obUgatory on the whole Latin
Church. Any uncertainty about this ecclesiastical
power (cf. Fahmer, Geschichte des Unaufloslichkeits-
princips, p. 170 sqq.) was removed by this Bull; for if
this power did not belong to the Chiu-ch. then the Bull
in question would have approved and originated an in-
stitution against all good morals. It is, however, in-
conceivable that the pope could issue a general pre-
scription that would contain an attack on morality
and could lormally sanction bigamy in certain cases.
Several of the older canonists, especially those of Bo-
logna, brought forward some special reasons which are
supposed to justify the dissolution of a marriage before
consummation. If thereby they wish to assert the
right of dissolution by private authority, then they
erred. If they intended to speak of a dissolution that
could be granted by the Church, that is, by its su-
preme head, and the permission for a new marriage,
then they had merely collected the cases in which such
a dissolution might take place in virtue of the papal
authority just spoken of, but they had not given a new
title to such dissolution. Some held the erroneous
opinion of private dissolubility, because they regarded
such a union as no real marriage, but simply as a be-
trothal, and therefore they treated it accortling to the
jiu'idical principles in regard to betrothal. This the-
ory of marriage, however, was not often defended, and
has long disappeared from theological schools; neither
does it deserve any consideration at present, because it
is in conflict with established Catholic dogmas.
D. Limited Divorce, or Separation from Bed and Board (Divortium Imperfcctum) is allowed for various caxtses, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife.
A separation of married parties leaving the marriage bond intact is mentioned by St. Paul, I Cor., vii, 11: "If she depart, that she remain unmarried, or be re- conciled to her husband." From the very nature of the case it follows that occasions may arise in which fur- ther cohabitation is imadvisable or even unseemly and morally impossible. If such circimistances do not bring about a dissolution of the marriage bond, at least a cessation of married life must be permitted. Hence it is that the Council of Trent, immediately after its definition of the indissohiliility of the marriage bond, even in case of adultery, added another canon (Sess. XXIV, can. viii): "If anyone shall say that the Church errs when she, for many causes, decrees a separation of husband and wife in respect to bed and dwelling-place for a definite or an indefinite period ; let him be anathema." The cessation of mar- ried hfe in common may have different degrees. There
