D. 35 - On fornication

After he has considered inability to have intercourse, which impedes the marital act, here he considers separation from the marriage bed because of the sin of fornication, which similarly takes away the marital act although the marriage bond endures. And this is divided into two parts: in the first, he shows how adultery following marriage removes the marital act although the marriage bond endures; in the second part, he shows how adultery preceding the marriage also removes the marriage bond, at: it is also usual to ask whether a woman who has previously been polluted by adultery can then be taken in marriage. (Sententiae IV, 35.4 (207). 1.)

The first has two parts: in the first part, he shows when it is permitted to put away one’s wife because of fornication; in the second part, he asks whether to put her away is necessary or whether one may also keep her, where he states: but John Chrysostom says, etc. (Sent. IV, 35.3 (206). 5.)

The first part is divided in two: first, he shows how it is permitted to the husband to send away his wife and vice versa, because of fornication committed; in the second, he shows that neither may marry after the separation because the prior marital bond remains, at: but if an innocent husband has dismissed his wife because of fornication, he cannot join with another. (Sent. IV, 35.3 (206). 1.)

Concerning the first point he does two things: first, he shows that either spouse may send away the other because of fornication, when the one who dismisses is innocent of fornication; second, he shows that this cannot happen when he himself is guilty of the same crime, and there he says: but if it is asked whether an adulterer can dismiss an adulteress because of fornication, we say, etc. (Sent. IV, 35.2 (205). 1.)

Question 1

On fornication

Here six questions arise:

first, whether it is permitted for the husband to send away his wife because of fornication;

• second, whether he is bound to do this;
• third, whether he may send her away by his own judgment or whether the judgment of the Church is required;
• fourth, whether husband and wife are of equal condition in this matter;
• fifth, whether after this separation they must remain unmarried;
• sixth, concerning reconciliation.
• Article 1 Whether it is permitted for the husband to send away his wife because of fornication

Obj. 1: To the first question, we proceed thus. (Parallels: Super Matt. 19; Super I Cor. 7, lec. 2.) It seems that it is not permitted for a husband to send his wife away because of fornication. For evil is not to be rendered for evil. But a man sending away his wife because of fornication seems to render evil for evil. Therefore, this is not permitted.

Obj. 2: Furthermore, it is a greater sin if both should fornicate than if only one should. But if both should fornicate, they will not be able to be separated on this account. (See Gregory IX, Decretals, Bk. 4, tit. 19, ch. 4, “Significasti”; Gratian, Decretals, pt. 2, cause 32, q. 6.) Therefore, neither should they if only one of them fornicates.

Obj. 3: Furthermore, spiritual fornication and certain other sins are more serious than carnal fornication. But there cannot be a separation from the marriage bed on account of these sins. Therefore, neither should there be because of carnal fornication.

Obj. 4: Furthermore, a vice against nature is more removed from the goods of matrimony than fornication, which is done in the mode of nature. Therefore, it should have been counted as a cause of separation more than fornication.

On the contrary (1), is what is said in Matthew 5:32.

Furthermore (2), one is not bound to keep faith with someone who breaks faith. But by fornicating a spouse breaks the faith that he owes to another. Therefore, one can send the other away because of fornication.

I answer that, the Lord allowed a husband to dismiss his wife because of fornication in penalty to the one who broke faith, and in favor of the one who kept faith, so that the faithful spouse would not be constrained to render the debt to the one who had broken faith. And because of this, seven instances are excepted in which the husband may not dismiss his wife for fornication, in which either the wife is free from guilt, or both are equally culpable. The first is if the husband himself was also a fornicator. (Gratian, Decretals, pt. 2, cause 32, q. 6, can. 1, “Nihil iniquius”; Gregory IX, Decretals, Bk. 4, tit. 19, ch. 4, “Significasti.”) Second, if he had prostituted his wife. (Gregory IX, Decretals, Bk. 4, tit. 13, ch. 6, “Discretionem.”) Third, if the wife had married another, believing in all probability her husband to be dead because of his long absence. (Gratian, Decretals, pt. 2, cause 34, qq. 1 & 2, can. 1, “Cum per bellicam.”) The fourth is if she was known by someone who secretly entered her bed disguised as her husband. (Gratian, Decretals, pt. 2, cause 34, qq. 1 & 2, can. 6, “In lectum.”) Fifth, if she was violated by force. (Gratian, Decretals, pt. 2, cause 32, q. 5, can. 4, “Proposito.”) Sixth, if her husband were reconciled to her after the adultery took place, and knew her carnally. (Gratian, Decretals, pt. 2, cause 32, q. 1, can. 4, “Si quis uxorem.”) Seventh, if the marriage had been contracted while both were unbelievers, the man had given his wife a writ of divorce, and the wife had married another; for then if both are converted to the faith, the man is bound to take her back. (Gregory IX, Decretals, Bk. 4, tit. 19, ch. 8, “Gaudemus in Domino.”)

Reply Obj. 1: The man sins if he dismisses his fornicating wife for revenge in spite; but if he does it to guard against disgrace falling upon himself, lest he seem a participant in the offense, or for the sake of correcting the vice of his wife, or for avoiding uncertainty about his children, he does not sin.

Reply Obj. 2: Separation because of fornication occurs by one party accusing the other; and since no one can accuse who is guilty of the same offense, (Gratian, Decretals, pt. 2, cause 4, qq. 2 & 3, can. 3, “Si testes,” n. 1; Gregory IX, Decretals, Bk. 2, tit. 20, ch. 10, “Veniens.”) when both are fornicators, separation cannot be enforced, regardless of whether the marriage was more sinned against by one party who fornicated than by the other.

Reply Obj. 3: Fornication is directly against the goods of matrimony; for the certitude of the children’s paternity is ruined by it, and faith is broken, and the signification is not preserved when one spouse divides his own flesh among many. This is why other misdeeds do not cause a separation, even though they are worse than fornication. But since unbelief, which is called spiritual fornication, is also against a good of matrimony, i.e., raising children to the worship of God, this too can cause a separation, but nevertheless in another way than fornication does. For it is possible to move for a separation because of one act of carnal fornication, but not because of one act of unbelief, but only for a habit that is shown to be obstinate, in which unbelief is the result. (Gratian, Decretals, pt. 2, cause 28, q. 1, can. 5, “Idololatria”; Gregory IX, Decretals, Bk. 4, tit. 19, ch. 2, “Quaesivit,” and ch. 7, “Quanto te.”)

Reply Obj. 4: A separation can be sought also because of a vice against nature; but mention is not made of it in this way, both because it is an unnameable passion, and because it occurs more rarely, and because it does not cause such incertitude about the children.

Article 2

Whether he is bound to do this

Obj. 1: To the second question, we proceed thus. (Parallel: below, d. 39, a. 3.) It seems that a man is bound by precept to send away a wife who fornicates. For the man, since he is the head of his wife, is bound to correct his wife. But separation from the bed is introduced for the sake of correcting a fornicating wife. Therefore, he is bound to separate her from himself.

Obj. 2: Furthermore, whoever consents to someone sinning mortally, mortally sins himself. But someone who retains a fornicating wife seems to consent to her, as it says in the text. Therefore, he sins unless he casts her away from himself.

Obj. 3: Furthermore, in 1 Corinthians 6:16, it says: whoever cleaves to a harlot becomes one body with her. But someone cannot be at the same time a member of a prostitute and a member of Christ, as it says in the same place. Therefore, a husband cleaving to a fornicating wife ceases to be a member of Christ, for he sins mortally.

Obj. 4: Furthermore, just as blood relation voids the marriage bond, so also fornication causes separation from the bed. But after a man has known the sister of his wife, he sins mortally by knowing his wife. Therefore, if he knows his wife after he finds that she is a fornicator, he sins mortally.

On the contrary (5), the gloss on 1 Corinthians 7 says, that the Lord permitted a man to send away his wife because of fornication. (See Glossa Lombardi (PL 191:1591); Glossa ordin. (VI, 43A); cf. Glossa interl. (VI, 43r) and Sedulius Scotus, In Epist. B. Pauli, on 1 Cor. 7:12 (PL 103:141).) Therefore, it is not commanded.

Furthermore (6), anyone can forgive another a sin that person has committed against him. But a wife sins against her husband by fornicating. Therefore, the man can spare her, such that he does not send her away.

I answer that, the dismissal of a fornicating wife was introduced as a penalty to correct the wife’s misdeed. However, a corrective penalty is not required where emendation has already taken place, and therefore if the wife repents of her sin, the husband is not bound to send her away; but if she does not repent, he is bound, lest he seem to consent to her sin while he does not employ the due correction.

Reply Obj. 1: The sin of fornication in a wife can be corrected not only by such a penalty, but also by words and by blows. And therefore, if she were provided with correction in some other way, the husband would not be bound to apply this penalty for her correction.

Reply Obj. 2: The man seems to consent to his wife when he does not restrain her to refrain from her past sin; but if she has amended, he does not consent to her sin.

Reply Obj. 3: By the fact that she has repented of the sin of fornication, she cannot be called a harlot; and therefore, the man uniting himself with her does not become the member of a harlot. Or it may be said that he is not joined to her as harlot, but as wife.

Reply Obj. 4: It is not the same, for consanguinity makes it so that there will be no marriage bond between them, and for this reason physical intimacy would be illicit. But fornication does not remove the bond mentioned above; and for this reason the act remains licit in itself, unless it should become illicit by some added circumstance—if, for example, it should seem that the man consents to the disgrace of his wife.

Reply Obj. 5: That permission is to be gathered from the lack of a prohibition, and thus it is not divided against a precept; for what falls under a precept is also not prohibited.

Reply Obj. 6: The wife does not only sin against her husband, but against herself, and against God; and for this reason the man cannot totally forego a penalty unless amendment should follow.

Article 3

Whether he may send her away by his own judgment or whether the judgment of the Church is required

Obj. 1: To the third question, we proceed thus. It seems that a man can dismiss his fornicating wife by his own judgment. For an automatic sentence (latae sententiae) from the court may be carried out without a trial. But God, the just judge, gave this sentence, that because of fornication a man may dismiss his wife. (See Matthew 5:32, 19:9.) Therefore, another judgment is not required for this.

Obj. 2: Furthermore, in Matthew 1:19, it says that Joseph, since he was a just man, thought about sending Mary away secretly. Therefore, it seems that a man may seek a separation secretly without the judgment of the Church.

Obj. 3: Furthermore, if a man after having known about the fornication of his wife renders the debt to her, he loses the legal recourse that he had against the fornicator. (See Raymond of Peñafort, Summa, Bk. 4, tit. 22, sec. 2 (529b).) Therefore, refusing the debt, which pertains to the separation, should precede the judgment of the Church.

Obj. 4: Furthermore, that which cannot be proved should not be brought before the judgment of the Church. (See Gratian, Decretals, pt. 2, cause 2, q. 3, can. 3.) But the offense of fornication cannot be proved, since the eye of the adulterer waits for the darkness, as Job 24:15 says. Therefore, the separation mentioned should not be made by the judgment of the Church.

Obj. 5: Furthermore, a formal charge should precede an accusation, by which someone may oblige himself to damages, if he should fail to prove his case. (See Gratian, Decretals, pt. 2, cause 2, q. 8, can. 3 and can. 4.) But this cannot happen in this matter, for then, however the thing should go, the man would attain his own aim: either he would dismiss his wife or she would dismiss him. Therefore, it should not be brought before the judgment of the Church by an accusation.

Obj. 6: Furthermore, a man is more bound to his wife than to strangers. But a man should not bring to the Church another’s offense, even a stranger’s offense, unless he has already admonished him in secret, as is evident from Matthew 18:15. Therefore, much less can he bring his wife’s offense to the Church, if he has not already privately rebuked her.

On the contrary (1), no one should avenge himself. But if a husband dismisses his fornicating wife by his own decision, he avenges himself. Therefore, this should not be done.

Furthermore (2), no one is both a prosecutor and a judge in his own cause. (See Gratian, Decretals, pt. 2, cause 4, q. 4, can. 1.) But the man is prosecuting his wife for the offense she committed against him. Therefore, he cannot be the judge; and thus he should not dismiss her by his own decision.

I answer that, the man can send away his wife in two ways. In one way, only from the bed; and in this way he can dismiss her by his own judgment as soon as he discovers the fornication of his wife; nor is he bound to render the debt to her when she requires it, unless he is compelled by the Church, and in that case rendering the debt prejudices none of his rights. In another way, both from the bed and from the house; and in this way she cannot be sent away except by the Church’s verdict. (See Gratian, Decretals, pt. 2, cause 33, q. 2, can. 1 and can. 2.) And if she has been dismissed in any other way, her husband should be forced to cohabit with her, unless he can prove the incontinent woman’s fornication. (See Gregory IX, Decretals, Bk. 4, tit. 19, ch. 4, ‘Significasti.’) Now this dismissal is called separation (divortium); and therefore it must be admitted that separation can only be granted by the judgment of the Church.

Reply Obj. 1: A sentence is the application of a general law to a particular fact; and thus the Lord promulgated the law, according to which the sentence should be rendered in the court.

Reply Obj. 2: Joseph did not want to send away the Virgin as though he suspected her of fornication, but out of reverence for her holiness, fearing to cohabit with her, as was said above; nor is it similar, for at that time the crime of adultery did not lead simply to separation, but rather to stoning; (See John 8:5.) however, that is not what happens in the judgment of the Church today.

The answer to the third objection is evident from what has been said.

Reply Obj. 3: Sometimes a man, having suspicions about his wife, may lie in wait for her, and he can apprehend her in the crime of fornication in front of witnesses, and in this way he can proceed to the accusation. And furthermore, if he cannot establish the fact, there can be forceful suspicions of fornication, which, when they are proved, it seems that fornication is proved, for example, if a man and a woman are found alone together at suspect times and places, and if they are found naked together. (See Gregory IX, Decretals, Bk. 2, tit. 23, ch. 13, ‘Litteris’; see Raymond of Peñafort, Summa, Bk. 4, tit. 22, sec. 1 (528a).)

Reply Obj. 5: A husband can accuse his wife of adultery in two ways. In one way, for a separation from the bed before an ecclesiastical judge, and then charges should be brought without obligation to the law of damages. For the husband attains his aim, as the objection proves. In another way, for the punishment of the crime in the secular court; and for this it is necessary that charges be brought first, by which the man obliges himself to the payment of damages if he should lose the trial.

Reply Obj. 6: As a decretal says, in criminal matters things can proceed in three ways. First, by inquiry, which must be preceded by public infamy, which takes the place of accusation. Second, by accusation, which must be preceded by filing suit. Third, by denunciation, which must be preceded by fraternal admonition. Thus the word of the Lord is understood as concerning the way of denunciation, not the way of accusation; for in that case, it is not only a question of correcting the delinquent, but of punishing him for the sake of preserving the common good, which perishes when justice is lacking.

Article 4

Whether husband and wife are of equal condition in this matter

Obj. 1: To the fourth question, we proceed thus. It seems that a husband and wife should not be judged equals in the matter of separation. For separation is conceded in the New Law in place of divorce, which existed under the Old Law, as is evident from Matthew 5:31–32. But in divorce the husband and wife were not judged equals: for the man could divorce his wife, (See Deuteronomy 24:1.) but not the reverse. Therefore, neither should they be judged equals in separation.

Obj. 2: Furthermore, it is more against the law of nature that a wife should have several husbands than that a man should have several wives: for the latter was allowed at certain times, (See Deuteronomy 21:15.) but the former never at all, as was said in Distinction 33, Question 1, Article 1, response to the seventh objection. Therefore, the wife sins more in adultery than the husband, and so they should not be judged equals.

Obj. 3: Furthermore, where there is greater harm to one’s neighbor, there is a greater sin. But an adulterous wife harms her husband more than an adulterous husband harms his wife: for the adultery of the wife causes uncertainty about the children, but the adultery of the man does not. Therefore, the sin of the wife is greater, and they should not be judged as equals.

Obj. 4: Furthermore, separation is sought for the correction of the crime of adultery. But it belongs more to the husband, who is the head of the wife (1 Cor 11:3), to correct his wife than vice versa. Therefore, they should not be judged equals in divorce, but the man should have a better standing.

On the contrary (5), it seems that the wife should have the better standing. For the greater the fragility of the sinner, the more the sin is worthy of forgiveness. But in women there is a greater fragility than in men, by reason of which Chrysostom says that the proper passion of a woman is lust. (Pseudo-Chrysostom, Homilies on Matthew, hom. 40.) And the Philosopher says in the Ethics 7 that women are not said to be incontinent, (Aristotle, Nicomachean Ethics, Bk. 5, ch. 4 (1148b31).) properly speaking, because of their easy inclination to concupiscence, for neither are brute animals able to be continent because of the fact that they have nothing which could stand against their desires. Therefore, in the punishment of separation, women should be spared more.

Furthermore (6), the man is considered the head of the woman, so that he might correct her. Therefore, he sins more gravely than the woman, and thus he should be punished more.

I answer that, in cases of separation the husband and the wife are judged equals, such that the same things are licit and illicit to one as to the other. (See Gratian, Decretals, pt. 2, cause 32, q. 1, can. 4; q. 5, can. 23.) However, they are not to be judged equally in these things: for the reason for a separation is greater in one party than in the other, although there may be sufficient cause in both for separation. For separation is the penalty for adultery, inasmuch as it is against the goods of matrimony. Yet, as concerns the good of fidelity, to which both the spouses are equally bound, the adultery of one sins as much against marriage as the adultery of the other, and this reason in either is sufficient for a separation. But as concerns the good of children, the adultery of the wife is a greater sin than the adultery of the husband, and therefore it is a greater cause of separation in the wife than in the husband. And thus they are bound to equal things, but not for equal reasons; nor is this unjust, since in either one there is sufficient cause for this penalty, just as it is when two people are condemned to punishment for the same person’s death, although one may have sinned more gravely than the other.

Reply Obj. 1: Divorce was only permitted for the sake of avoiding homicide; and since there was greater danger of this in men than in women, this is why it was permitted for a man to send away his wife, not vice versa.

Reply Obj. 2 & 3: These arguments proceed from the fact that in comparison to the good of offspring there may be a greater reason for separation in an adulterous wife than in an adulterous husband. But it does not follow that they should not be judged as equals, as is clear from what was said above.

Reply Obj. 4: Although the man is the head of his wife, he is head as governor, not as if he were the judge of her, just as neither is she the judge of him. Therefore, in those things which must be done by a judgment, the man has no more power over his wife than she over him.

Reply Obj. 5: The same character of sin is found in adultery as in simple fornication, and even more, because it is made worse by the wound to marriage. If, therefore, what is common to adultery and fornication is considered, the sin of a man and the sin of a woman are related as things that go too far and things that have been pushed too far. For in women there is more of the humors, and therefore they are more able to be drawn by their desires; but in the man there is more heat, which excites concupiscence. But even simply speaking, with all other things equal, the man sins more in simple fornication than the woman does, for he has more of the good of reason, which is stronger than any movements of bodily passions. But as concerns the wound to marriage which adultery adds to fornication, for which reason separation is sought, the woman sins more than the man, as is clear from what has been said. And since this is graver than simple fornication, therefore, simply speaking, the adulterous woman sins more than the adulterous man, all other things being equal.

Reply Obj. 6: Although the rule over the woman which the man receives may be an aggravating circumstance, nonetheless, by the circumstance of wounding marriage, which changes the species of the act, the sin is made much more serious, for it turns it into a species of injustice in which someone else’s children may secretly be passed off as one’s own.

Article 5

Whether after this separation they must remain unmarried

Obj. 1: To the fifth question, we proceed thus. (Parallels: Super Matt. 19; Super I Cor. 7, lec. 2 & 3.) It seems that after a separation a man may marry another. For no one is bound to perpetual continence. But the man in some cases is bound to separate himself from a fornicating wife, as is clear from what has been said. Therefore, it seems that at least in such a case he may marry another.

Obj. 2: Furthermore, a sinner must not be given a greater occasion of sinning. But if someone who has been sent away because of the fault of fornication is not allowed to seek another union, a greater occasion of sinning is given to that person. For it is not probable that someone who could not be continent in marriage will be able to be continent afterward. Therefore, it seems that he or she should be allowed to pass to another union.

Obj. 3: Furthermore, the wife is not bound to the man except in the rendering of the debt, and in cohabitation. But by separation she is absolved of both. Therefore, she is free from the law of her husband; therefore, she can marry another, and the reasoning runs the same for the man.

Obj. 4: Furthermore, Matthew 19:9 states: whoever sends away his wife and marries another, except by reason of fornication, commits adultery. Therefore, it seems that if the wife was dismissed by reason of fornication and he has married another, he does not commit adultery. And thus it would be a valid marriage.

On the contrary (1), 1 Corinthians 7:10–11 says: not I command, but the Lord commands the wife not to leave her husband, but if she has left, to remain unmarried.

Furthermore (2), no one should reap advantage from sin. (See Gregory IX, Decretals, Bk. 5, tit. 19, ch. 13, ‘Tuas dudum.’) But someone would, if it were allowed for an adulterer to pass over to some other more desired marriage, and it would be an occasion of committing adultery to those wishing to seek another marriage. Therefore, it is not permitted to the husband or to the wife to seek another union.

I answer that, nothing introduced into the marriage may dissolve it; and therefore adultery does not do this either, if it be a valid marriage: for the conjugal bond remains, as Augustine says, between them while they live, because neither separation nor union with another can remove it; (Augustine, On Marriage and Concupiscence, Bk. 1, ch. 10, par. 11 (CSEL 42:223).) and therefore it is not permitted to one, when the other is living, to pass over to another embrace.

Reply Obj. 1: Although per se no one is obliged to continence, nevertheless per accidens it can happen that someone is obliged; for example, if one’s wife should contract some incurable illness, which could not allow physical intimacy. And likewise, too, if she should suffer incorrigibly from some spiritual infirmity, like fornication.

Reply Obj. 2: The very embarrassment which is the result of separation should restrain such a person from sin. For if it cannot restrain her, it is a lesser evil if she alone should sin, than if her husband should be a participant in her sin.

Reply Obj. 3: Although after their separation the wife is not bound to render the debt to and to cohabit with an adulterous husband, nevertheless the matrimonial bond, by which she was bound to this, remains even after. Therefore, she may not pass over to another union while her husband lives. Yet she can take a vow of continence against her husband’s will, unless the Church seems to have been deceived by false witnesses when it was granting the separation: for in such a case, even if she had made a vow of religious profession, she would be restored to her husband, and bound to render him the debt. But she would not be allowed to demand it of him. (See Raymond of Peñafort, Summa, Bk. 4, tit. 19 (522a).)

Reply Obj. 4: That exception which is in the words of the Lord refers to the dismissal of the wife: and therefore the objection proceeds from a false understanding.

Article 6

Whether after a separation, the husband and wife may be reconciled

Obj. 1: To the sixth question, we proceed thus. It seems that after a separation, the husband and wife may not be reconciled. For this is the rule in the law: what has once been well determined should not be retracted by any appeal. (See Gratian, Decretals, pt. 2, cause 6, q. 4, can. 6; Digests, Bk. 50, tit. 9, leg. 5, ‘Quod semel’.) But it has been determined by the judgment of the Church that they should be separated. Therefore, they cannot be reconciled afterward.

Obj. 2: Furthermore, if a reconciliation were possible, it seems particularly that after the repentance of the wife the man would be bound to take her back. But he is not bound to do this, for even in the trial a wife cannot cite her own repentance as a defense against a husband accusing her of fornication. (See Gratian, Decretals, pt 2, cause 33, q. 2, can. 8.) Therefore, in no way can they be reconciled.

Obj. 3: Furthermore, if a reconciliation were possible, it would seem that the adulterous wife would be bound to return to a husband who is inviting her back. But she is not bound to this; for they have already been separated by the judgment of the Church. Therefore, etc.

Obj. 4: Furthermore, if it is allowed to reconcile with an adulterous wife, it should especially happen when the husband is found to have commited adultery after the separation. But in that case the wife cannot force him to a reconciliation, since the separation was justly granted. And therefore there is no way for them to be reconciled.

Obj. 5: Furthermore, if a secretly adulterous husband sends away his wife, convicted of adultery by the judgment of the Church, the separation does not seem to be justly done. But nonetheless the man is not bound to be reconciled with his wife; for the wife cannot prove the adultery of the husband in court. (See Gratian, Decretals, pt 2, cause 32, q. 6, can. 1.) Therefore, much less when the separation is justly granted can a reconciliation take place.

On the contrary (1), it says in 1 Corinthians 7:11*: if she has left, she must remain unmarried, or be reconciled to her own husband*.

Furthermore (2), the husband need not have sent her away after the fornication. (See article 2, above.) Therefore, by the same reasoning he can reconcile her to himself.

I answer that, if after the separation the wife has amended her life and done penance for her sin, her husband can reconcile with her. But if she remains incorrigible in sin, he should not take her back to himself, by the same reasoning by which he was not permitted to retain her when she did not wish to cease sinning.

Reply Obj. 1: The sentence of the Church granting a separation did not compel a separation, but only granted permission. Therefore, without retraction of this sentence a reconciliation can take place.

Reply Obj. 2: The repentance of the wife should induce the husband not to accuse or to send away the wife who fornicated. But nevertheless, he cannot be forced to this, (See Gregory IX, Decretals, Bk. 3, tit. 32, ch. 19, ‘Gaudemus in Domino.’) nor can the wife through her repentance prevent him from making the accusation: for in the person who withdraws from sin as regards both the act of sin and the stain, something still remains of the culpability. And even someone having no more culpability before God may remain liable to penalty under human judgment. For man does not see the heart as God does.

Reply Obj. 3: What is introduced in someone’s favor does not prejudice any of his rights; (See Codicem, Bk. 1, tit. 14, leg. 6, ‘Quod favore.’) therefore, when separation is granted in the husband’s favor, it does not take away his right to ask for the marital debt, or to take back his wife. For this reason the wife is bound to render it to him, and to return to him if she is invited, unless with his permission she has taken a vow of continence.

Reply Obj. 4: According to the strict interpretation of the law, a formerly innocent husband should not be forced to take back his adulterous wife because of the adultery which he committed after the separation. (See Raymond of Peñafort, Summa, Bk. 4, tit. 22, sec. 3 (530a).) But in the interest of justice, the judge by reason of his office should urge him to be careful of the danger to his soul and the scandal to others, although the wife cannot request a reconciliation.

Reply Obj. 5: If the adultery of the husband is hidden, it does not remove the adulterous wife’s right of bringing it as a defense against the accusation of the husband, although the proof may be lacking to her. Therefore, the husband sins by requesting a separation; and if after the granting of separation the wife should request the debt or a reconciliation, the husband is bound to both.

Exposition of the Text

“He is a fosterer of turpitude, who hides his wife’s crime.” (Sententiae IV, 35.3 (206). 5, Pseudo-Chrysostom, In Matthaeum opus imperfectum, hom.32.) Against this, Proverbs 11:13: Faithful is the one who conceals the crime of his friend. And it must be said that this is to be understood when the concealment is not in prejudice of correction; otherwise, the one who conceals offers his protection to the disgrace.

It is also usual to ask whether a woman who has previously been polluted by adultery can then be taken in marriage. (Sent. IV, 35.4 (207). 1.) It should be known that there are many offences which because of their enormity prevent marriage from being contracted. The first is incest; the second, wife-murder; the third, kidnapping someone else’s bride; fourth, when someone conspires to receive his own godchild in marriage; fifth, killing a priest; sixth, when someone is completing solemn repentance. But the crimes mentioned do not invalidate a marriage that has been contracted. Yet there are certain crimes which void a marriage that has been contracted. One of these is when someone lies with a married woman, and because of this plots the death of her husband and brings it about. For in this instance the two should not contract with each other; and if they have contracted, they are separated. The second is when someone keeps his word to his partner in adultery that he will take her as his wife. But this is to be understood when the adulterous man as well as the adulterous woman knew the impediment; otherwise the marriage is not voided after it was contracted. The third is when someone has already contracted with a woman de facto, for the first marriage prevents the second one from being valid; and then, if the first was not a valid marriage, the second would stand. For it must be known that in the second and third cases, that is, when a promise is given that a marriage will be contracted, and when a marriage has been contracted de facto by words of the present, unless carnal defilement took place, a subsequent marriage newly contracted after the husband’s death is not voided on this account.