CONIUGI, RIGHTS AND DUTIES of. -
I. GENERAL PRINCIPLES
marriage (v.) is that which theologians and canonists customarily call the individua vitae consuetudo or also matrimonium in facto esse, that is, the complex of rights and duties of spouses, which derive from the ends and goods of marriage and characterize the married state.1. Reciprocal duties of spouses. - The principal moral duties that each spouse has toward the other are:
a) the duty of reciprocal love (cf. Eph. 5, 25, 28; Col. 3, 19; I Tim. 2, 15); a grave duty, which requires one to love one’s spouse more than one’s parents and children;
b) the duty of reciprocal material and spiritual assistance (cf. Gen. 2, 18);
c) the duty of fidelity (cf. I Cor. 7, 4), from which it follows that every act of lust, whether external or merely internal, committed by one spouse (even if the other consented) with a third person or having a third person as its object, partakes of the nature of adultery; this duty is likewise legally sanctioned, both by the Church and by the State, which punish adultery (v.), and regard adultery and other grave violations of fidelity as grounds for personal separation (vedi here below);
d) the duty to submit to the consummation of the conjugal act and of acts connected with II.
This latter duty, grave by its nature, corresponds to the right which each of the two contracting parties acquires through marriage over the body of the other, specifically with regard to the conjugal act and other acts connected with it (cf. I Cor. 7, 3-4). This right and corresponding duty is perpetual and exclusive (cf. can. 1111): perpetual inasmuch as it arises as soon as the marriage has been celebrated and never ceases so long as the marriage lasts; exclusive, inasmuch as it can in no case belong to anyone other than the spouse.
The perpetuity of this right and duty does not, however, exclude the possibility that, for various reasons, its exercise may be temporarily suspended or even permanently lost, or that in any event the two spouses may, provided they agree and the requisite conditions are present, abstain from exercising it, while its exclusiveness nevertheless remains in every case intact.
Before the CIC, a decretal of Alexander III, issued between 1187 and 1197 (c. 7, X, III, 32), was in force; it gave each spouse the right to refuse the conjugal act during the first two months after the celebration of the marriage, in order to reserve the possibility of entering a religious Order before this became impossible through the consummation of the marriage. But the rule established by the aforesaid decretal was not reproduced in the CIC, which instead explicitly affirmed (can. 1111) that conjugal rights and duties arise as soon as the marriage is celebrated; and a married person may not be admitted to the religious novitiate (can. 542 n. 1), except by pontifical dispensation; if, however, the marriage has not been consummated, and one of the two is, with the aforesaid dispensation, admitted to the novitiate and subsequently makes solemn profession, the marriage is dissolved ipso iure (can. 1119).
Likewise, the prohibition contained in Lev. 20, 18 ff. ceased to have force as a norm of divine law (with the cessation of the Mosaic law); nevertheless, at various times and in various places, especially during the first centuries of the Church, it was reproduced in ecclesiastical laws, which have long since been abrogated.
Conversely, the declaration of the Holy Office (4 March 1679) remains valid, having a doctrinal character, namely, that the opus coniugii ob solam voluptatem exercitum is a sin (understood, a venial one) (Denz-U, n. 1159).
Since 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 (vedi here below). Cohabitation is called by canonists communio mensae, tori et habitationis.
Civil law, which is also binding in conscience insofar as it is not contrary to divine law, while imposing on spouses the threefold obligation of cohabitation, fidelity, and assistance (art. 143 of the Italian Civil Code), and considering the spouse obliged before anyone else to provide maintenance (art. 433; and V. ALIMENTI), imposes civil and criminal sanctions for the most serious violations of these obligations.
Apart from what will be said concerning civil sanctions, it should be recalled that the Italian Penal Code punishes with imprisonment of up to one year or a fine (currently from 8,000 to 80,000 lire) «anyone who, abandoning the domestic domicile or in any event maintaining conduct contrary to the order or morality of families, evades the obligations of assistance inherent... in the status of a spouse»; with both penalties, anyone «who deprives... the spouse, who is not legally separated through his or her fault, of the means of subsistence» (art. 570); with imprisonment from 1 to 5 years (or more severely if personal injury or death results), anyone who mistreats the spouse (art. 572); and with various penalties, according to the circumstances, anyone who commits adultery (v.).
2. Duties of the husband toward the wife. — From the general duty of reciprocal assistance there follows, in particular, for the husband the moral and legal obligation to protect his wife, to keep her with him, and to provide her with everything necessary for the needs of life in proportion to his means; while the wife is obliged to contribute to the support of her husband only if he lacks sufficient means (art. 145 of the Italian Civil Code).
If, however, the wife, having left the conjugal domicile without just cause, refuses to return to it, the husband’s obligation to provide for her support remains suspended (art. 146 of the Civil Code).
On the other hand, the obligation to support, educate, and instruct the children belongs to both spouses, in proportion to their means (art. 148 of the Civil Code).
The obligations of the husband toward the wife set out above necessarily undergo some modification in the event of separation (vedi below); indeed, the spouse through whose fault the separation was pronounced loses every right against the other, with the exception of the right to fidelity, which in such a case is not usually fully recognized (or at least sanctioned) by the laws of the State (v. ADULTERIO), and the right to maintenance (v. ALIMENTI), to which the right of support is reduced (cf. art. 156 of the Civil Code).
3. Marital authority. — Through marriage, the man acquires the so-called marital authority, which derives from his being the head of the family (since logically a family cannot have two heads). The content of this authority is not determined by the Church, except with regard to a few effects that operate within the sphere of canon law; for the remainder, the civil laws apply, and insofar as they are not contrary to divine law and, in particular, do not encroach upon the sphere of the Church’s competence, they are also binding in conscience.
In Italian law, the institution of marital authorization was abolished by the law of 17 July 1919 no. 1176; this authorization, under arts. 134-37 of the former Civil Code and other provisions, was ordinarily necessary for the wife for certain acts exceeding ordinary administration and for the conduct of commerce. Marital authority was thereby reduced to the husband’s being head of the family and to the right (which is also a duty) of the husband to establish, wherever he deems appropriate, the conjugal domicile (arts. 144 and 153 of the Civil Code currently in force); from this there follows for the wife the moral and legal obligation to live in that domicile (civil and criminal sanctions are provided for violation of this obligation; arts. 146-51 of the Civil Code; art. 570 of the Penal Code), unless there is a just cause for leaving it or there is personal separation (vedi here below).
The new Constitution (art. 29), while proclaiming that « marriage is ordered upon the moral and juridical equality of the spouses », nevertheless admits that the law may establish limits « to safeguard family unity »; and therefore the norms currently in force concerning marital authority are to be considered consistent with the Constitution itself.
4. Duties of the wife toward the husband. — In addition to the duties already considered, the wife must obey her husband insofar as he gives her orders that are reasonable and necessary or useful to herself, to her husband, or to the offspring, and in general to 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 Petr. 3, 1).
5. The juridical condition of the wife. — The wife, says can. 1112, becomes a participant in the juridical condition of her husband for canonical purposes, except in cases in which the law provides otherwise. Applications or qualifications of this principle are the norms establishing: that the wife who is not separated from her husband has her domicile (v.) where he has his, quasi-domicile (v.), whereas if she is separated she may also have her own domicile (can. 93); that, if she is of a different rite, she may, upon contracting marriage or afterward, adopt her husband’s rite (can. 98 § 4); that she may choose her place of burial independently of her husband (can. 1223 § 2).
Italian law establishes that the wife follows her husband’s civil status and assumes his surname (art. 144 of the Civil Code), which she also retains as a widow (art. 149 of the Civil Code); but, in the event of separation, the court may, depending on the circumstances, prohibit her from using it (art. 156 of the Civil Code).
6. Property relations between spouses. — Civil laws (here too binding in conscience, unless they are contrary to divine law) also regulate the family’s matrimonial property regime, which may be of various kinds, the principal ones being: separation of property, community of property between spouses, and dowry; in some legal systems these are supplemented by family property, or by some other form of property regulation.
Separation of property consists in this: both the husband and the wife each retain ownership and administration of their own property, including property acquired during the marriage.
Community of property or of profits means that all or part of the property or profits belonging to each spouse become the common property of both.
A dowry exists when the wife, or another on her behalf, brings to the husband property intended to support the financial burdens arising for him from the married state. By virtue of being constituted as dowry, such property becomes inalienable (except with the authorization of the judicial authority) and exempt from attachment. The constitution of a dowry ceases upon the dissolution of the marriage.
Family property has many analogies with dowry and is regulated very differently by individual legal systems. In Italian law, its principal distinguishing feature from dowry is that it does not cease to exist until the youngest of the children born of the marriage has reached the age of majority and the marriage has been dissolved.
Civil laws generally require solemn forms (usually, at least, a public instrument) for contracts by which one of these family property regimes is constituted. As a rule, they also establish that one of these is regarded as the statutory regime, in the sense that, in the absence of a contract or for property not covered by the contract, that regime applies: in Italy, the statutory regime is separation of property.
The various regimes may, obviously, also coexist when none of them concerns all the property of the spouses. Indeed, dowry and family property never absorb all the property, but coexist with separation or community of property: when a dowry has been constituted and the wife has her own property subject to a regime of separation, this property is called paraphernal property.
BIBLI: General works: s. Tommaso, Sum. theol., Suppl., q. 64; Th. Sanchez, De sancto matrimonii Sacramento, II, IX and X; L. Ferraris, Prompta bibliotheca, s. V. Coniuges, Coniugium; s. Alfonso, Theologia moralis, I, III, nn. 351-56, 431; V, nn. 23-25; VI, nn. 271-74, 900-954; H. Noldin-A. Schmitt, Summa theolo-
gier moralis, II, 26ª ed., Innsbruck-Lipsia 1939, pp. 261-63 and 361-64; IV, ed. 31ª, ivi 1940, pp. 68-104; E. Genicot-I. Salmana, Institutiones theologiae moralis, 16ª ed., Bruxelles 1946; I, pp. 278-79; II, pp. 491-507; F. M. Cappello, Tractatus canonico-moralis de Sacramentis, V, 5ª ed., Torino-Roma 1947, pp. 791-817. Monographs: H. Borsinger, Rechtsstellung der Frau in der katholischen Kirche, Paderborn 1930; R. Le Picard, Le communauté de la vie conjugale, Parigi 1930; R. Pius, La morale cattolico del matrimonio, trad. C. Testore, 2ª ed., Torino 1944. Historical-canonical curiosities may be read in F. Vassalli, Del «ius in corpus», del debitum coniugale, e della servitù d'amore, Roma 1944. Pio Ciprotti
II. PERSONAL SEPARATION OF THE SPOUSES
This consists in the cessation or suspension of the spouses’ obligation to cohabit.The Gospel contemplates separation on account of adultery (Mt. 5:31–32; 19:9); St. Paul admits it for a legitimate cause (1 Cor. 7:11–12), and the Council of Trent confirmed its lawfulness (sess. XXIV, can. 8; Denz-U, no. 978). Since this is an institution concerning effects inseparable from marriage, competence to legislate and to judge in this matter belongs in itself to the Church.
The CIC regulates (cann. 1128–31) the total separation of the spouses, that is, from bed, board, and dwelling, which differs from partial separation, which includes only some of these elements. Separation may furthermore be perpetual or temporary, and by mutual consent or through the fault of only one spouse.
Perpetual separation by mutual consent is admitted by canonists only when one of the spouses receives Sacred Orders (can. 987) or enters a religious Order (can. 542).
For the adultery of one spouse, total perpetual separation is admitted (can. 1129), provided that the spouse is guilty of it, the adultery is morally certain, has been consummated, has not been provoked or approved by the other spouse, has not been compensated for by an equal offense, and has not been expressly or tacitly condoned. § 2 of can. 1129 establishes that tacit condonation occurs when the innocent spouse, having morally ascertained the adultery, «cum altero coniuge sponte, maritali affectu, conversatus fuerit»; and that such condonation is presumed if the innocent spouse has not expelled, abandoned, or legitimately accused the adulterer within six months from the day on which he or she learned of the fact. The innocent spouse may separate from the adulterer on his or her own authority, without the judge’s sentence being necessary, only if the adultery is certain or notorious. He or she is in no way obliged to restore conjugal life; may nevertheless do so, unless in the meantime the guilty spouse, with the consent of the other, has been ordained in sacris or has embraced religious life (can. 1130).
Can. 1131 § 1 sets forth certain causes of temporary separation, which must be pronounced by the Ordinary of the place, or may be undertaken on the initiative of the innocent spouse if the existence of the cause is certain and delay in the separation would entail danger. The causes listed by way of example in the canon are usually grouped as follows: spiritual adultery («si alter coniux sectae acatholicae nomen dederit, si prolem acatholica educaverit, si vitam criminosam et ignominiosam ducat»), danger to the soul («si grave... animae... periculum alteri facessat»), danger to the body («si grave... corporis periculum alteri facessat»), and extreme difficulty in continuing common life because of cruelty. In these cases conjugal life must be restored when the cause ceases; but, if the separation has been pronounced by the Ordinary for a specified period or without determination of time, the innocent spouse is not obliged to restore it before the date fixed in the decree or to be fixed by the Ordinary in another decree (can. 1131 § 2).
The education of the children belongs to the innocent spouse, or, if one of the spouses is non-Catholic, to the Catholic spouse, provided that, in either case, the Ordinary has not provided otherwise (can. 1132).
Cases of separation are normally handled administratively (authentic interpretation of 25 June 1932), but they may also be handled judicially at the request of the parties or by decree of the Ordinary or ex officio; judicial procedure is nevertheless necessary when the legislation of the State in which the separation is to produce civil effects expressly requires a judgment for that purpose.
At second instance, the same procedure as at first instance must be observed (the authentic interpretation cited): thus, if judicial procedure was followed at first instance, the judgment shall be appealed before the appellate judge; if administrative procedure was followed, the decree may be challenged only by recourse to the S. Congregation of the Sacraments (can. 1601).
In Italy, under art. 34 of the Concordat, the Church has consented to cases of separation of spouses being judged by the civil judicial authority; in this event, the final judgment is communicated to the ecclesiastical authority (art. 19 of the law of 27 May 1929, no. 847).
The current Italian Code admits an application for separation on account of the wife’s adultery, or the husband’s adultery when, in the circumstances, it constitutes a grave injury to the wife; for voluntary abandonment, excesses, cruelty, threats, or grave injuries (art. 151); for a sentence to life imprisonment, imprisonment for more than five years, or perpetual disqualification from public offices (art. 152); and for the husband’s unjustified refusal to establish a residence or to establish one suitable to his condition (art. 153). Consensual separation of the spouses has no legal effect unless it is approved by the court (art. 158).