The Canonical Institute of Separation of Spouses with the Bond Remaining and Civil Separation and Divorce in the United States of America: Canonical Development Since the Late Nineteenth Century with Particular Reference to the Archdiocese of Chicago

Abstract

This thesis examines the canonical institute of separation of spouses with the bond remaining, tracing its historical development, legislative evolution, and practical application, with particular attention to the United States from the late nineteenth century through the promulgation of the 1983 Code of Canon Law. Rooted in medieval concepts drawn from property and contract law, separation developed as a juridical means of regulating the rights and obligations of the common life while preserving the indissolubility of the marital bond. Although formally distinct from civil divorce and civil separation, the canonical treatment of separation became increasingly intertwined with questions of recourse to the civil authorities in late nineteenth- and twentieth-century canonical literature. The study highlights the tension between universal ecclesiastical law and American particular practice, marked by the watershed of the Third Plenary Council of Baltimore (1884). It identifies the emergence of a widespread but unfounded norm in American canonical discourse: the transformation of the Council’s requirement of consultation prior to civil separation into an alleged obligation to obtain episcopal permission for civil separation and divorce. The thesis demonstrates that this interpretation was not grounded in the legislative text itself, but arose from a convergence of misapplied Roman responses—originally shaped by the political circumstances of France—and pastoral concern in the United States over the increasing prevalence of civil divorce. The transition from the 1917 Code to the 1983 Code of Canon Law is then examined, with particular attention to the movement away from a fault-based and penal framework toward a personalist understanding of marriage and an explicit preference for civil authorities to adjudicate the civil effects of separation. A detailed case study of the Separation Court of the Archdiocese of Chicago (1940s–1985) provides insight into the Church’s application of norms regarding separation and divorce, describing an institution created to address a specific juridical context and tracing its continued operation after that context had substantially changed. Publications, administrative documents and records from real cases are compared to the procedural and substantive norms. The thesis concludes that the disappearance of such institutions, together with developments in codified law, reflects a reconfiguration of jurisdiction rather than a repudiation of principles. It thus raises broader questions about the conditions under which canonical norms concerning separation of spouses with the bond remaining can function as operative law in contemporary ecclesial and civil contexts.