Spouses, Rights and Duties of

SPOUSES, Rights and Duties of. - I. GENERAL PRINCIPLES. - Among the principal effects of marriage (v.) is what theologians and canonists are accustomed to call the individua vitae consuetudo, or also matrimonium in facto esse, that is, that complex of rights and duties of spouses which descend from the ends and the goods of marriage, and which characterize the married state.

1. Mutual duties of spouses

The principal moral duties that each of the spouses has toward the other are: a) the duty of mutual love (cf. Eph. 5, 25, 28; Col. 3, 19; I Tim. 2, 15); a grave duty, which imposes the obligation to love one's spouse more than one's parents and children; b) the duty of mutual 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 of the spouses (even if there were 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 too is sanctioned juridically, both by the Church and by the State, which punish adultery (v.), and consider adultery and other grave violations of fidelity as a cause of personal separation (see below); d) the duty to lend oneself to the performance of the conjugal act and of the acts connected with it.

This last duty, grave by its nature, is correlative to the right that with marriage each of the two contracting parties acquires over the body of the other precisely in relation to the conjugal act and to the other acts connected with it (cf. I Cor. 7, 3-4). Such 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 is never extinguished as long as the marriage lasts; exclusive, inasmuch as it can in no case belong to others except the spouse.

The perpetuity of this right and duty does not, however, exclude that, for various causes, its exercise may be temporarily suspended or even lost in perpetuity, or that the two spouses may, provided they are in agreement and certain conditions concur, abstain from exercising it, while nevertheless the exclusivity of it remains firm in every case.

Before the CIC, there was in force a decretal of Alexander III, dated between 1187 and 1197 (c. 7, X, III, 32), which gave each spouse the right to refuse the conjugal act in the first two months after the celebration of marriage, in order to reserve for himself the possibility of entering a religious Order, before this became impossible through the consummation of the marriage. But the norm given by the aforesaid decretal was not reproduced in the CIC, which on the contrary has explicitly affirmed (can. 1111) that conjugal rights and duties arise as soon as the marriage is celebrated; and a married person cannot be admitted to religious novitiate (can. 542 n. 1), save 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 then makes solemn profession, the marriage is dissolved ipso iure (can. 1119).

Likewise there has ceased as a norm of divine law (with the cessation of the Mosaic law) the prohibition contained in Lev. 20, 18 ff., which, however, at various times and places, especially in the first centuries of the Church, was reproduced in ecclesiastical laws, by now for some time abrogated.

Conversely, there still holds, having a doctrinal character, the declaration of the Holy Office (4 March 1679) that it is a sin (understood, venial) to perform the opus coniugii ob solam voluptatem exercitum (Denz-U, n. 1159).

Since the observance of such 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 just cause for separation (see below). Cohabitation is called by canonists communio mensae, tori et habitationis.

Civil law, obligatory also in conscience if it is not contrary to divine law, while it imposes on spouses the threefold obligation of cohabitation, fidelity, and assistance (art. 143 of the Italian Civil Code), and considers the spouse obligated before anyone else to provide maintenance (art. 433; and v. ALIMENTI), prescribes civil and penal sanctions against the gravest violations of such obligations.

In addition to what will be said regarding civil sanctions, it is to be remembered that the Italian Penal Code punishes with imprisonment up to one year or with a fine (currently from 8,000 to 80,000 lire) "whoever, abandoning the domestic domicile or in any case maintaining a conduct contrary to the order or the morals of families, 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 through his own fault" (art. 570); with imprisonment from 1 to 5 years (or more gravely if personal injury or death results) whoever maltreats the spouse (art. 572); with various penalties, according to the cases, whoever commits adultery (v.).

2. Duties of the husband toward the wife

From the generic duty of mutual assistance, there descends in particular for the husband the obligation, moral and juridical, 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 own means; while the wife has the obligation to contribute to the maintenance of the husband, only if he does not have sufficient means (art. 145 of the Italian Civil Code).

If, however, the wife, having departed without just cause from the conjugal domicile, refuses to return there, the husband's obligation to provide for her maintenance remains suspended (art. 146 of the Civil Code).

On the other hand, the obligation to maintain, educate, and instruct the offspring belongs to both spouses, in proportion to their means (art. 148 of the Civil Code).

The obligations, set out above, of the husband toward the wife, necessarily undergo some modification in case of separation (see below); and indeed the spouse through whose fault the separation has been pronounced 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. ADULTERIO), and of the right to maintenance (v. ALIMENTI), to which the right to support is reduced (cf. art. 156 of the Civil Code).

3. Marital power

The man acquires with marriage the so-called marital power, which derives to him from being the head of the family (since the family logically cannot have two heads). The content of such power is not determined by the Church, except for a few effects that are manifested within the ambit of canon law; for the remainder, civil laws hold, which, insofar as they are not contrary to divine law and in particular do not invade the field of competence of the Church, obligate also in conscience.

In Italian law, with the abolition by the law of 17 July 1919 no. 1176 of the institution of marital authorization (which, under arts. 134-37 of the old Civil Code and other provisions, was ordinarily necessary for the wife for certain acts exceeding ordinary administration and for the exercise of commerce), marital power has been reduced to the husband's being the head of the family and to the right (which is at the same time also a duty) of the husband to fix, where he deems opportune, the conjugal domicile (art. 144 and 153 of the current Civil Code); whence there derives for the wife the obligation, moral and juridical, to live in such domicile (civil and penal sanctions are provided for the violation of this obligation; arts. 146-51 of the Civil Code; art. 570 of the Penal Code), unless there exists just cause for departing from it or there is personal separation (see below).

The new Constitution (art. 29), while proclaiming that "marriage is ordered on the moral and juridical equality of the spouses," nevertheless admits that the law may establish limits "as a guarantee of family unity"; and therefore the norms in force regarding marital authority are to be considered in conformity with the Constitution itself.

4. Duties of the wife toward the husband

In addition to the duties already seen, the wife must obey her husband, insofar as he gives her reasonable orders, and ones necessary or useful to herself, to the husband, or to the offspring, and generally 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 Pet. 3:1).

5. Juridical condition of the wife

The wife, says can. 1112, becomes a sharer in the juridical condition of the husband, for canonical purposes, except in cases where the law provides otherwise. Applications or temperings of this principle are the norms which establish: that the wife, who is not separated from her husband, has her domicile (v.) where he has his, but may have a different quasi-domicile (v.), whereas if she is separated she may also have a domicile of her own (can. 93); that she, if she is of a different rite, may, in contracting marriage or afterward, pass to the rite of her husband (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 the civil condition of her husband 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 case of separation, according to the circumstances, the court may forbid her its use (art. 156 of the Civil Code).

6. Patrimonial relations between spouses

The civil laws (also here binding in conscience, if they are not contrary to divine law) further regulate the patrimonial regime of the family, which may be of various kinds, the principal ones being: separation of property, community of property between the spouses, and dowry; to these is added in some legislations the family patrimony, or some other form of patrimonial regulation.

Separation of property consists in this, that both the husband and the wife each retain the ownership and administration of their own property, including that which they acquire during the marriage.

Community of property or of profits entails that all or a part of the property or profits proper to each spouse become the common property of both.

Dowry exists when the wife, or others on her behalf, brings to the husband property destined to sustain the economic burdens that come to him from the married state. Such property, by the very fact of being constituted as dowry, becomes inalienable (save with the authorization of the judicial authority) and unattachable. The constitution of dowry ceases with the dissolution of the marriage.

The family patrimony has many analogies with dowry, and is regulated very variously by individual legislations. In Italian law its principal distinguishing character from dowry lies in this, that it does not cease until the last of the children born of the marriage has reached the age of majority and the marriage has been dissolved.

The civil laws are accustomed to require solemn forms (generally, at least a public act) for the contracts by which one of these patrimonial regimes of the family is constituted. And as a rule they also establish that one of these is considered the legal regime, in the sense that, in the absence of a contract or for the part of the property not considered in the contract, such a regime prevails: in Italy the legal regime is the separation of property.

The various regimes may, as is evident, also coexist, when each of them does not concern all the property of the spouses. Indeed, dowry and family patrimony never absorb all the property, but coexist with separation or with community: when dowry has been constituted, and the wife has property of her own that is under a regime of separation, this is called paraphernal property.

Pio Ciprotti

II. PERSONAL SEPARATION OF THE SPOUSES

It consists in the cessation or suspension of the obligation of cohabitation of the spouses.

In the Gospel, separation for adultery is contemplated (Mt. 5:31-32; 19:9); St. Paul permits it for a legitimate cause (1 Cor. 7:11-12), and the Council of Trent confirmed its lawfulness (sess. XXIV, can. 8; Denz-U, n. 978). Since this is an institution that concerns effects inseparable from marriage, the competence to legislate and to judge in this matter belongs of itself to the Church.

The CIC regulates (cann. 1128-31) the total separation of spouses, that is, from bed, table and dwelling, which is different from partial separation, which comprises only some of these elements. Separation can, moreover, 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 in the case that one of the spouses receives Holy Orders (can. 987) or enters a religious Order (can. 542).

For adultery of one spouse, total perpetual separation is permitted (can. 1129), on condition that the spouse is guilty of it, that the adultery is morally certain, that it has been consummated, that it was not provoked or approved by the other spouse, that it has not been compensated by equal fault, that it has not been expressly or tacitly condoned. § 2 of can. 1129 decrees 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 driven out, abandoned or legitimately accused the adulterer within six months from the day on which he came to know of the fact. The innocent spouse may separate from the adulterer even on his own authority, without the need for a judge's sentence, only if the adultery is certain or notorious. He is in no way bound to restore the conjugal life; he may, however, do so, unless in the meantime the guilty spouse, with the consent of the other, has been ordained in sacris or has embraced the religious life (can. 1130).

Can. 1131 § 1 sets forth certain causes of temporary separation, which must be pronounced by the local Ordinary, or may be effected on the initiative of the innocent spouse if there is certainty of the existence of the cause and danger in the delay of separation. The causes set forth by way of example in the canon are usually grouped into the following categories: 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»), extreme difficulty of continuing the common life because of cruelty. In these cases the conjugal life must be restored when the cause ceases; 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 by 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 one, provided that, in either case, the Ordinary has not provided differently (can. 1132).

Causes of separation are normally treated administratively (authentic interpretation of 25 June 1932), but they may also be treated judicially at the request of the parties or by decree of the Ordinary or ex officio; the judicial form is, however, necessary when the legislation of the State in which the separation is to produce civil effects expressly requires a sentence for that purpose.

In the second instance, the same form as the first instance must be observed (authentic interpretation cited): if, therefore, in the first instance the judicial way was followed, the sentence will be appealed before the appellate judge; if the administrative way was followed, against the decree only recourse to the S. Congregation of the Sacraments is permitted (can. 1601).

In Italy, by art. 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 final is communicated to the ecclesiastical authority (art. 19 of the law of 27 May 1929, n. 847).

The Italian Code in force permits the petition for separation on grounds of adultery of the wife, or of adultery of the husband if by the circumstances it constitutes grave injury to the wife, for voluntary abandonment, for excesses, cruelty, threats or grave injuries (art. 151), for condemnation to life imprisonment, to imprisonment for more than five years and to perpetual disqualification from public offices (art. 152), and for unjustified refusal of the husband to fix a residence or to fix one suited to his condition (art. 153). Separation by mutual consent of the spouses is legally ineffective unless it is approved by the court (art. 158).

Giulio Pacelli