HUSBANDS AND WIVES, RIGHTS AND DUTIES OF. —
I. GENERAL PRINCIPLES
Among the principal effects of marriage (v.) is that which theologians and canonists are accustomed to call *individua vitae consuetudo* or also *matrimonium in facto esse*, that is, the complex of rights and duties of the spouses that derive from the ends and goods of marriage, and that characterize the marital state.1. Reciprocal duties of the spouses
The principal moral duties that each spouse has toward the other are:a) the duty of mutual love (cf. Eph. 5:25–28; Col. 3:19; 1 Tim. 2:15); a grave duty that requires loving the spouse more than parents and children;
b) the duty of mutual material and spiritual assistance (cf. Gen. 2:18);
c) the duty of fidelity (cf. 1 Cor. 7:4), from which it follows that every act of lust, whether external or merely internal, committed by one spouse (even if with the consent of the other) with a third person or having a third person as its object, partakes of the nature of adultery; this duty is also sanctioned juridically, both by the Church and by the State, which punish adultery (v.) and consider it, along with other grave violations of fidelity, a cause of personal separation (see below);
d) the duty to render the marital act and acts connected with II.
This last duty, grave in its nature, is correlative to the right that each contracting party acquires, through marriage, over the body of the other precisely with regard to the marital act and other acts connected with it (cf. 1 Cor. 7:3–4). This right and corresponding duty are perpetual and exclusive (cf. can. 1111): perpetual in that it arises as soon as the marriage is celebrated and never ceases as long as the marriage lasts; exclusive in that it can never belong to anyone other than the spouse.
The perpetuity of this right and duty does not, however, exclude the possibility that, for various causes, its exercise may be temporarily suspended or even lost in perpetuity, or that the two spouses, provided they agree and certain conditions concur, may refrain from exercising it, while the exclusivity of the right remains fully intact in every case.
Before the 1917 Code of Canon Law, a decretal of Alexander III, issued between 1187 and 1197 (c. 7, X, III, 32), granted each spouse the right to refuse the marital act during the first two months after the celebration of marriage, in order to reserve the possibility of entering a religious order before it became impossible due to the consummation of the marriage. However, this norm from the aforementioned decretal was not reproduced in the 1917 Code, which explicitly affirmed (can. 1111) that the rights and duties of marriage arise as soon as the marriage is celebrated; and a married person cannot be admitted to the novitiate of a religious order (can. 542 n. 1), except by papal dispensation; but if the marriage has not been consummated and one of the spouses, with the aforementioned dispensation, is admitted to the novitiate and then makes solemn profession, the marriage is dissolved *ipso iure* (can. 1119).
Similarly, the prohibition contained in Lev. 20:18ff., which had the force of divine law (with the cessation of the Mosaic law), has likewise ceased, though it was reproduced in ecclesiastical laws at various times and places, especially in the early centuries of the Church, and has long since been abrogated.
On the other hand, the declaration of the Holy Office (4 March 1679) remains in force in its doctrinal character, namely that “the marital act performed solely for pleasure is a sin” (understood as venial) (Denz.-U., n. 1159).
Since the observance of these duties is difficult if the spouses do not live in the same house, as a rule they also have the obligation of cohabitation (cf. art. 143 of the Italian Civil Code), unless there is a just cause for separation (see below). Canonists refer to cohabitation as *communio mensae, tori et habitationis*.
Civil law, which is binding even in conscience unless it is contrary to divine law, while imposing upon spouses the triple obligation of cohabitation, fidelity, and assistance (art. 143 of the Italian Civil Code), and considering the spouse obligated before all others to provide support (art. 433; and V. ALIMENTI), imposes civil and criminal sanctions for the most serious violations of these obligations.
In addition to what will be said regarding civil sanctions, it should be noted that the Italian Penal Code punishes with imprisonment up to one year or a fine (currently from 8,000 to 80,000 lire) “whoever, by abandoning the marital home or otherwise conducting himself in a manner contrary to the order or morality of the family, evades the obligations of assistance inherent in... the status of spouse”; with both penalties
whoever “fails to provide the means of subsistence... to the spouse who is not legally separated due to his or her fault” (art. 570); with imprisonment from one to five years (or more severely if personal injury or death results) whoever maltreats the spouse (art. 572); and with various penalties, depending on the circumstances, whoever commits adultery (v.).
2. Duties of the husband toward the wife
From the general duty of mutual assistance arises, in particular for the husband, the moral and juridical obligation to protect the wife, to keep her with him, and to provide her with all that is necessary for the needs of life in proportion to his means; while the wife has the obligation to contribute to the support of the husband only if he does not have sufficient means (art. 145 of the Italian Civil Code).If, however, the wife, having been removed from the marital home without just cause, refuses to return, the husband’s obligation to provide for her maintenance is suspended (art. 146 of the Italian Civil Code).
On the other hand, the obligation to maintain, educate, and instruct the offspring falls upon both spouses in proportion to their means (art. 148 of the Italian Civil Code).
The duties of the husband toward the wife, outlined above, necessarily undergo some modification in the case of separation (see below); indeed, the spouse at fault in the separation loses every right toward the other, with the exception of the right to fidelity, which, however, in such a case is not usually recognized in full (or at least sanctioned) by the laws of the State (v. ADULTERY), and the right to support (v. ALIMENTI), to which the right to maintenance is reduced (cf. art. 156 of the Italian Civil Code).
3. Marital authority
The husband acquires through marriage the so-called marital authority, which derives from his being the head of the family (since a family cannot logically have two heads). The content of this authority is not determined by the Church, except for a few effects that are exercised within the sphere of canon law; for the rest, civil laws apply, which, insofar as they are not contrary to divine law and do not encroach upon the sphere of competence of the Church, are binding even in conscience.In Italian law, the institution of marital authorization was abolished by Law No. 1176 of July 17, 1919 (which, under Articles 134-37 of the old Civil Code and other provisions, was ordinarily required for a wife to perform certain acts exceeding ordinary administration and for engaging in commerce), the marital authority was reduced to the husband being the head of the family and to the husband’s right (which is also a duty) to determine the marital domicile where he deems appropriate (Civil Code Articles 144 and 153); hence the wife has the moral and legal obligation to reside in that domicile (civil and criminal sanctions are provided for violation of this obligation; Civil Code Articles 146-51; Penal Code Article 570), unless there is a just reason for her absence. While Article 29 of the Constitution proclaims that “marriage is founded on the moral and juridical equality of the spouses,” it nevertheless admits that the law may establish limits “to safeguard family unity”; and therefore the existing norms on marital authority must be considered consistent with the Constitution itself.
4. Duties of the wife toward the husband
In addition to the duties already noted, the wife must obey the husband insofar as his orders are reasonable and necessary or useful for her, for the husband, or for the children, and in general for the governance of the family.This duty of obedience is recalled several times by St. Paul, sometimes explicitly (Eph 5:24; Col 3:18), sometimes implicitly (1 Cor 11:3-9; Eph 5:22-23; cf. also 1 Pet 3:1).
5. Legal status of the wife
According to Canon 1112, the wife, for canonical purposes, becomes a participant in the legal status of the husband, except in cases where the law provides otherwise. Applications or mitigations of this principle include the norms that establish: that the wife, if not separated from her husband, has the same domicile (v.) as he does, but may have a quasi-domicile (v.) different from his, whereas if she is separated she may even have her own domicile (Canon 93); that if she is of a different rite, she may, either at the time of contracting marriage or afterward, adopt her husband’s rite (Canon 98 § 4); and that she may choose her own place of burial independently of her husband (Canon 1223 § 2).Italian law provides that the wife follows the civil status of the husband and assumes his surname (Civil Code Article 144); this is retained even by the widow (Civil Code Article 149), but in the event of separation, depending on the circumstances, the court may prohibit her from using it (Civil Code Article 156).
6. Property relations between spouses
Civil laws (also binding in conscience, provided they do not contradict divine law) regulate the property regime of the family, which may take various forms, the principal ones being: separation of property, community of property between spouses, dowry; to these some legal systems add the family patrimony or some other form of property arrangement.Separation of property consists in the husband and wife each retaining ownership and administration of their own property, including that acquired during marriage.
Community of property or of profits means that all or part of the property or profits belonging to each spouse become common property of both.
A dowry exists when the wife, or someone on her behalf, brings property to the husband intended to support the economic burdens arising from the marital state. Such property, by virtue of being constituted as a dowry, becomes inalienable (except with judicial authorization) and unseizable. The constitution of a dowry ceases upon the dissolution of the marriage.
The family patrimony has many similarities to the dowry and is regulated in various ways by different legal systems. In Italian law, its main distinction from the dowry lies in the fact that it does not cease until the last child born of the marriage reaches majority and the marriage is dissolved.
Civil laws usually require solemn forms (generally at least a public deed) for contracts by which one of these property regimes of the family is established. As a rule, they also provide that one of these is considered the legal regime, meaning that in the absence of a contract or for the portion of property not covered by the contract, that regime applies: in Italy the legal regime is separation of property.
The various regimes may, as is evident, coexist when each does not pertain to all the spouses’ property. Indeed, dowry and family patrimony never absorb all the property but coexist with separation or community: when a dowry has been constituted and the wife has property in a separate regime, this is called paraphernal property.
II. PERSONAL SEPARATION OF SPOUSES — Consists in the cessation or suspension of the obligation of cohabitation between spouses.
The Gospel contemplates separation for adultery (Matt 5:31-32; 19:9); St. Paul admits it for a just cause (1 Cor 7:11-12), and the Council of Trent confirmed its liceity (Session XXIV, canon 8; Denz-U, no. 978). Since this is an institution concerning effects inseparable from marriage, the competence to legislate and judge in this matter belongs by right to the Church.
The Code of Canon Law regulates (Canons 1128-31) total separation of spouses, i.e., from bed, board, and dwelling, which differs from partial separation, which includes only some of these elements. Separation may also be perpetual or temporary, and by mutual consent or through the fault of one spouse only.
Perpetual separation by mutual consent is admitted by canonists only in the case where one spouse receives Holy Orders (Canon 987) or enters a religious order (Canon 542).
For the adultery of a spouse, perpetual total separation is permitted (Canon 1129), provided that the spouse is guilty, the adultery is morally certain, has been consummated, was not provoked or approved by the other spouse, has not been compensated by equal fault, and has not been expressly or tacitly condoned. Paragraph 2 of Canon 1129 states that tacit condonation occurs when the innocent spouse, having morally ascertained the adultery, “sponte, maritali affectu, conversatus fuerit” with the other spouse; and that such condonation is presumed if the innocent spouse has not expelled, abandoned, or legitimately accused the adulterous spouse within six months from the day on which he or she became aware of the fact. The innocent spouse may separate from the adulterous spouse even on his or her own authority, without the need for a judicial sentence, only if the adultery is certain or notorious. The innocent spouse is in no way bound to restore conjugal life; however, he or she may do so, unless in the meantime the guilty spouse, with the consent of the other, has been ordained in sacred orders or has embraced the religious life (Canon 1130).
The canon 1131 sets forth several causes for temporary separation, which must be pronounced by the local Ordinary, or may be effected at the initiative of the innocent spouse if there is certainty of the existence of the cause and danger in delaying the separation. The causes enumerated by way of example in the canon are usually grouped as follows: spiritual adultery ("if one spouse gives his name to an acatholic sect, if he educates the children in an acatholic manner, if he leads a criminal and disgraceful life"), danger to the soul ("if grave... danger to the soul... threatens the other"), danger to the body ("if grave... danger to the body... threatens the other"), and extreme difficulty in continuing common life due to cruelty. In these cases, conjugal life must be restored with the cessation of the cause; but if the separation has been pronounced by the Ordinary for a determined time or without determination of time, the innocent spouse is not bound to restore it before the date fixed in the decree or to be fixed by the Ordinary in another decree (canon 1131 § 2).
The education of the children pertains to the innocent spouse, or, if one of the spouses is acatholic, to the Catholic spouse, provided that in either case no different provision has been made by the Ordinary (canon 1132).
The causes of separation are normally treated by administrative procedure (authentic interpretation of 25 June 1932), but they may also be treated judicially at the instance of the parties or by decree of the Ordinary or ex officio; however, the judicial form is necessary when the legislation of the State in which the separation is to have civil effects expressly requires a sentence for this purpose.
In the second grade, the same form as in the first grade must be observed (authentic interpretation cited): if, therefore, the judicial procedure was followed in the first grade, the sentence will be appealed to the appellate judge; if the administrative procedure was followed, only recourse to the Sacred Congregation of the Sacraments is admitted against the decree (canon 1601).
In Italy, by article 34 of the Concordat, the Church has consented that causes of separation of spouses be judged by the civil judicial authority; in this case the sentence that has become res judicata is communicated to the ecclesiastical authority (article 19 of the law of 27 May 1929, n. 847).
The current Italian Code admits a petition for separation for adultery of the wife, or for adultery of the husband if under the circumstances it constitutes grave injury to the wife, for willful abandonment, for excesses, cruelty, threats or grave insults (article 151), for a sentence to life imprisonment, to imprisonment for more than five years, or to perpetual disqualification from public office (article 152), and for the husband’s unjustified refusal to establish a residence or to establish one suitable to his condition (article 153). The consensual separation of spouses is legally ineffective unless homologated by the court (article 158).