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Desertion




The culpable abandonment of a state, of a stable situation, the obligations of which one had freely accepted. In civil life the word usually designates the offence committed by a soldier who, by flight, forsakes his military obligations. As regards Christian life, desertion may have for its object any state, from the highest to the lowliest, to which Christians may be called. The first kind of deserton is the abandonment of the state and obligations imposed by baptism and is known as apostasy (apostasia a fide). A second kind of desertion is when the baptized has been admitted by ordination to the ranks of the clergy and thereafter abandons his clerical state and its obligations (apostasia ab ordine). The abandonment of the religious state is still another kind of apostasy (apostasia a religione). (See APOSTASY.) But this expression is used only in connexion with those orders which take solemn vows; abandonment of the religious life as followed in congregations under simple vows, is mere desertion, although by some it is incorrectly designated as apostasy. This desertion does not incur the excommunication to which religious apostates are sentenced, though it entails suspension for clerics (Decr. Auctis admodum of the S.C. of Bishops and Regulars, 4 Nov., 1892), and generally terminates in dismissal or expulsion.

The term desertion is also applied to a cleric's abandonment of his benefice, whether it be residential or non-residential. If the benefice be residential, there is occasion to proceed against the culprit according to the Council of Trent (Sess. VI, c. i; Sess. XXIII, c. i; Sess. XXIV, c. xii). The first text applies to bishops and provides that, after six months, the abasent prelate be deprived ipso facto of a quarter of the annual revenue of his benefice; that if he remain absent for six additional months he be denied another quarter's revenue and finally, that if he fail to return to his charge the metropoolitan or the suffragan bishops must denounce him to the pope within three months, and his punishment may even amount to the privation of his benefice. The second text concerns parish priests and other clerics having the care of souls: it deprives the guilty party of the revenue of his benefice in proportion to the length of absence; at the same time the bishop can proceed against the absentee by ecclesiastical censures, and finally deprive him of his benefice if he does not return within six months after receiving a warning or official summons. The third text relates to canons and other clerics who possess even a simple benefice, obliging them to residence for the choir-office, the celebration of Mass and other analogous charges: the absentee loses ipso facto the daily distributions (see BENEFICE); the number of days of absence may not exceed three months in any year; otherwise he forfeits half the revenue of his benefice; if he repeats the offence a second year, he forfeits all the revenue; and if his absence be still prolonged he can be deprived of the benefices by canonical sentence. For the very rare case of non-residential benefice which the beneficiary has totally abandoned, canonists consider that it becomes vacant after ten years, according to the terms of c. viii, De cler. non resid., III, tit. iv.

In judicial matters there is desertion of suit or of appeal when the plaintiff, after instituting a proceeding or lodging an appeal, fails to comply withinn the required time with the judicial acts demanded by the court. In the first instance, the judge, having established the neglect of the plaintiff, declares the suit abandoned. The judge from whom appeal is taken should appoint a time for the apellant to present his appeal to the new judge (c. xxxiii, and Clem., iv, De appell., II, tit. xxviii). The appeal should be terminated within a year or two (c. v, and Clem., iii, De appell.). However, this system is not strictly observed.

Finally, since the married state supposes that man and wife dwell together, desertion is the unjustified abandonment of the conjugal domicile by one or the other, especially by the wife who is bound to follow her husband to his new domicile. This desertion, which recent civil legislation considers a legitimate cause for separation and even for divorce, is considered by canon law merely a delict that gives the deserted party the right to recall the fugitive through judicial authority, either ecclesiastical or secular (c. xiii, De restit. spol., II tit. xiii). If the wife separates for a legitimate reason, on account of the adultery or heresy of her husband, because of ill-treatment by him or in order to escape a serious danger that would result from continued dwelling with him, such desertion is not held to be malicious; it is, however, the duty of the proper judge to pass upon it.

For the first case see the canonnists, De clericis non residentibus, III, tit. iv; for the second, De appellationibus, II, tit. xxviii; for the third, SANCHEZ, De Matrimonio, 1, ix, disp. iv; ESMEIN, Le mariage en droit canonique (Paris, 1891), II, 96, 308.

A. BOUDINHON








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