A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
As finally settled, the canon law permits a separation from bed and
board on three grounds. First is adultery. For this offense the
woman as well as the man is given an action for divorce, which,
however, may be defeated by pleading various exceptions, such as
the like guilt of the accusing party.[145] The second cause is
"spiritual adultery,"[146] being historically an enlargement of the
first cause through allegorical interpretation. Originally under
this head separation was allowed for various offenses;[147] but in
the end it is restricted to the heresy or apostasy of one of the
persons, and perhaps to the case of one spouse compelling the other
to commit a wrong,[148] although on this point the authorities
are by no means agreed. A third cause for which separation may be
demanded is cruelty committed by one partner against the other.
Whether in this case blows alone will suffice, especially as
concerns the woman, is not settled by the laws; but the "dominant
opinion inclines to leave the determination of this point to the
discretion of the judge."[149]
[Footnote 145: For the exceptions see ESMEIN, _op. cit._, II,
91, 92; FREISEN, _op. cit._, 833-36; SCHEURL, _Das gem. deut.
Eherecht_, 288, 289.]
[Footnote 146: More exactly speaking _fornicatio spiritualis_ "as
opposed to _fornicatio carnalis_," the first cause mentioned.]
[Footnote 147: Crimes against nature, idolatry, etc.: ESMEIN,
_op. cit._, II, 90 n. 1.]
[Footnote 148: Such as forcing a spouse to idolatry or to some
heinous crime. This case is regarded as an enlargement of the
conception of _fornicatio spiritualis_: ESMEIN, _op. cit._, II,
90 n. 4, 92 nn. 8, 9. _Cf._ FREISEN, _op. cit._, 836.]
[Footnote 149: ESMEIN, _op. cit._, II, 93, 94. Earlier divorce
_a mensa et thoro_ was not granted on this ground unless there
was real danger to the life of one of the parties; but at last
it was decided that _nimia saevitia_ would suffice, but the term
is not defined: _idem_, _loc. cit._ In general on this species
of divorce see FREISEN, _op. cit._, 830-47; GEARY, _Marriage
and Family Relations_, 238, 239, 350; SCHEURL, _Das gem. deut.
Eherecht_, 286-91.]
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