- Posted by Mary's Advocates
- On January 1, 1885
Council of Baltimore year 1885, Decree No. 126
When the United States was still pseudo-mission territory, the U.S. Bishops drafted some particular laws for the faithful in their territories. Included among them was Number 126 stating that those who petitioned the civil forum for separation [or divorce] needed permission from the bishop first. The decree of promulgationis was dated January 6, 1886. The decree of recognitionis from the Prefect of the Offices of the Sacred Congregation for the Propagation of the Faith was dated September 21, 1885.
[English Translation] We lay down the precept to all those, who are married, that they not enter civil tribunals for obtaining separation from bed and table, without consulting ecclesiastical authority. But if anyone should have attempted it, let him know that he incurs grave guilt and is to be punished through the judgment of the bishop [Translation Bernard, 1948].
1917 Code of Canon Law
The 1917 Code did not abolish laws promulgated for countries by those countries’ Plenary Councils. Article No. 126 from the Third Plenary Council of Baltimore has three substantive aspects: 1) the procedural part that requires a party to have the bishop’s permission before petitioning in the civil forum, 2) the incurring guilt part, and 3) the penalty part. All were still binding after the 1917 Code.
Penal laws from the US Plenary Councils are still in effect, unless on a case-by-case, topic-by-topic basis they were abrogated by either the common canon law applicable to the universal Church, a ruling from the Pope, or by a subsequent act of a Plenary Council of the US Bishops.
The 1917 Code described its effect on old laws in canon 6 and 22:
1o (degree) All laws, whether universal or particular, that are opposed to the prescriptions of this Code, are abrogated, unless some special provision is made in favor of particular laws;
2o Those canons which restate the ancient law without change, must be interpreted upon the authority of the ancient law, and therefore in the light of the teaching of approved authors;
3o Those canons which agree with the ancient law only in part, must be interpreted in the light of the ancient law in so far as they agree with it, and in the light of their own wording in so far as they differ from the ancient law;
4o When it is doubtful whether a canon contained in this Code differs from the ancient law, the ancient law must be upheld;
5o As regards penalties not mentioned in the Code, whether spiritual or temporal, medicinal or (as they say) vindictive, whether incurred by the act itself or imposed by judicial sentence, they are to be considered as abrogated;
6o If there be one among the other disciplinary laws hitherto in force, which is neither explicitly nor implicitly contained in this Code, it must be held to have lost all force unless it is found in approved liturgical books or unless it is of divine right, positive or natural.
(translation source A commentary on the new Code of the canon law, by Dom Charles Augustine Bachofen, O.S.B., D.D.. yr. 1918. pp. 77-78)
1917 CIC Canon 22: A later law, given by competent authority, abrogates an earlier one if it expressly says so, or if it is directly contrary to it, or re-orders the subject-matter of the older law; however, Can. 6, No. i of this Code remains in full force, that is to say, a general law in no wise derogates from the laws in force in particular places or with regard to particular persons, unless the contrary is expressly provided therein.
(ibid. source p. 102)
To study the effect the 1917 and 1983 Code has on penal laws issued by the US Bishops’ Plenary Councils, the distinction must be clear between Church laws that are applicable to the whole world, and those that are only applicable for certain territories. Territories refer to a diocese or collection of dioceses. For example, the bishops in Ohio comprise a territory called a province. A provincial council of bishops, including a metropolitan diocese and its suffragan dioceses can establish laws for their territories jointly. At a plenary council has competence to issue laws for a whole country’s conference of bishops. In either case, the acts (i.e. articles or decrees) of a council are not to be published (i.e. promulgated) until the Apostolic See has reviewed them.
(See 1983 CIC c. 446; 1917 CIC c. 291, “they must not be promulgated until the S. C of the Council has examined and approved them” […] “The decrees of a plenary or provincial council, after being duly promulgated, oblige throughout the whole territory for which they were made;” 1983 CIC c. 455 §2 for plenary council “They do not obtain binding force unless they have been legitimately promulgated after having been reviewed by the Apostolic See”)
A Bishop has competence to establish Church laws for the faithful in his diocese, and he is the only legislator of the synod during which laws are made. His laws (declarations) must be communicated to the metropolitan and conference of bishops. (See 1983 CIC c. 466-467; 1917 CIC c. 362). The bishop has no authority to make particular laws for his diocese that are contrary to divine law or the common law of the universal Church. 1983 CIC canon 135, §2 shows, “A lower legislator cannot validly issue a law contrary to higher law.”
Common law means those laws applicable to the entire world, such as contained in the Code of Canon Law or directives from the offices of the Roman Curia of the Pope prior to 1917. Particular law (synonymous with special law, or territorial law) are only binding for certain regions of the Church, such as laws for diocese from bishop, laws for province from their provincial council, and laws for country’s conference of bishops from their plenary council.
To study the effect the 1917 and 1983 Code has on penal laws issued by the US Bishops’ Plenary Councils, the distinction must be clear between laws “issued” by the Holy See or those issued by a territory’s legislator (i.e. bishop, provincial council, or plenary council). The Code of Canon law is issued by the Holy See.
Regarding the 1917 Code, commentator Bachofen, with and imprimatur from the Archbishop of St. Louis, explains that the Code does not derogate all existing laws for particular places:
a) Papal constitutions sometimes contain the clause, “hac immutabili et in perpetunm valitura constitutione.”This is merely an emphatic assertion that the law should not be recalled without reason ; it does not bind the Pope’s successor, because “par in parem non habet imperium.” If the successor expressly mentions his predecessor’s law as abolished, the latter loses its force.
b) A later lawgiver may issue a law about a matter (e. g. matrimonial) which runs contrary to former laws; hence the rule, “Lex posterior generalis derogat legi priori generali.”
c) A thorough overhauling of the subject-matter has the same effect, for instance, in the removal of parish priests.
However, a general law does not abrogate a particular or special law unless the intention of the lawgiver is clearly expressed to that effect in a special clause. Such a clause would be, “non obstantibus quibuscunque etiam speciali vel specialissima mentione dignis.” In the canon quoted the Code ordains that all particular and special laws remain in force unless the contrary is expressly stated. Thus, e. g., the particular law on episcopal nominations in the U. S. remains in force even under the new Code.
(ibid Bachofen source p. 102)
The 1917 Code has a provision in canon 6, 5o, about penal laws: “As regards penalties not mentioned in the Code, whether spiritual or temporal, medicinal or (as they say) vindictive, whether incurred by the act itself or imposed by judicial sentence, they are to be considered as abrogated.” Commentator Woywod, with an imprimatur from the Archbishop of New York, makes clear that degrees 2o – 5o of canon 6 apply only to common laws of the universal Church, not particular laws for territories. The Franciscan Friar’s website says Woywod (bio) taught canon law in Paterson, was both editor and contributor to the Homiletic & Pastoral Review, wrote a Compendium of Canon Law, and was a recognized international authority on canon law.
[pg. 6] A more recent law given by the competent authority abolishes a former law when it explicitly makes a statement to that effect, or when it is directly contrary to the former law, or, finally, when it takes up and readjusts the entire subject matter of the law. A general law, however, does not abolish laws for particular places or the statutes of inferior legislators, e.g., of bishops, unless the general law is either directly opposed to the special law, or the general law explicitly revokes the particular law. The Code, therefore, does not abolish the decrees of National and Provincial Councils, nor diocesan statutes. rules and constitutions of Orders, except in as far as they may in some points be against the Canons, or in points where the Code explicitly states that notwithstanding particular laws the Code is to be followed. (Canon 22.)
(source The New Canon Law: A Commentary and Summary of the New Code of Canon Law, By Rev. Stanislaus Woywod, O.F.M. yr. 1918. pp. 2, 3 & 6)
Regarding the 1917 Code, Leech, with an imprimatur from the Archbishop of Baltimore, explains the Code’s effect on the US penal laws enacted at the Council of Baltimore.
(source A Comparative Study of the Constitution “Apostolicae Sedis” and the “Codex Juris Canonici”, by George Leo Leech. yr. 1922. p. 92)
The President of St. Patrick’s Seminary, Menlo Park, Cal. Professor of Moral Theology, Pastoral Theology, and Canon Law, Very Rev. H.A. Ayrinhac discusses how the 1917 Code gathered the common law of the Church. His teaching about degree 5o, in canon 6 shows it is only applicable to penal statues that were part of the common law – not particular law for limited territories.
(source Penal Legislation in the New Code of Canon Law (liber V), by Henry Amans Ayrinhac. yr. 1922, p. 180)
In Ecclesiastic Review, a Monthly Publication for Clergy, Cum Approbatione Superiorum, the November 1917 edition contained an article by Woywod, showing the effect the 1917 Code had on disciplinary laws already in effect in the U.S.A.
Particular laws that are not in opposition to the laws of the Code present a difficulty. Number 6 of Canon 6 states that all the other disciplinary laws which have heretofore been in force lose binding power unless they are contained either explicitly or implicitly in the new Code. Does this ruling apply to the universal laws of the Church? Or does it apply to both particular and universal laws? It is not likely that the Code intends to abolish diocesan laws or those of national or provincial councils when they are not in opposition to the new Code. This Canon is made clearer by Canon 22, from which it appears quite certain that such particular laws are not annulled.
(source Woywod, Stanislaus, O.F.M. “The First Book of the New Code of Canon Law” The Ecclesiastical Review, Volume 57 No. 5, 636-645, yr. 1917, page 638) (Nov. issue in books.google is pp. 464-712)
Mary’s Advocates works to reduce unilateral no-fault divorce and support those who are unjustly abandoned. Mary’s Advocates website publicizes article 126 of the 3rd Plenary Council of Baltimore of the US Bishops Conference, promulgated on 6 January 1886. It says that if one petitions in the civil forum for separation (a.k.a. divorce) without the bishop’s permission, one incurs grave guilt and is to be punished:
Plenty of commentators with bishops’ imprimatur had publicized–after the 1917 Code went into effect–that the penalty specified in Art. 126 and grave sin incurred by filing in the civil forum without the bishops’ permission was still in effect. These writings prove that no elements of Art. 126 from 3rd Plenary Council of Baltimore was abrogated by the 1917 Code. (See Albany, Detroit, New York, Apostolic Delegate to the US and Milwaukee, and others referencing CPB III, n. 126 & 126)
Furthermore, evidence that the 1917 Code of Canon law did not automatically abrogate penalties issued by the 3rd Plenary Council of Baltimore is seen when actions taken later abrogated one penalty. Had the 1917 Code abrogated all the penalties in the US Bishops Plenary Council’s particular laws, then no penal elements could be abrogated sixty years later. In 1977, Pope Paul VI abrogated the automatic excommunication imposed on Catholics who marry after divorce in Art. 124 of the 3rd Plenary Council of Baltimore in effect in the USA. (See UPI Press Summary here, pg. 6 “Pope Changes Remarriage Law”)
Using the civil forum to tear asunder one’s marriage is a grave offense and the terms used in art. 124 are relevant to denying Communion, “manifeste apparet gravissimae culpae illos esse reos.” The 1983 code shows Communion should be denied those “in manifesto gravi peccato obstinate perseverantes.”
Regarding the marriage laws of the Church in cases of separation of spouses, Woywod discussed the common law in the 1917 Code applicable to the universal Church.
[pg. 230, Article II. Separation from Bed and Board] 971. The married couple is obliged to live together in conjugal relations, unless a just cause frees them from this obligation. (Canon 1128.)
972. For reason of adultery of one party, the other has the right to solve even for all times the community of life, though the marriage bond remains, unless the other consented to the crime, or was the cause of it, or expressly, or tacitly, condoned it, or, finally, committed the same crime himself, or herself.
Tacit condoning of the crime consists in this that the innocent party, after having become certain of the crime, nevertheless continues to live with the other in marital relations; such the law presumes to be the case, unless the innocent party within six months either expel or leave the guilty partner, or bring legal accusation against him, or her. (Canon 1129.)
973. The married person who, either upon sentence of the judge, or by his or her own authority lawfully leaves the guilty party, has no longer obligation to again admit the adulterer to conjugal life; the innocent party, however, has the right to admit the guilty partner, and to oblige him, or her, to return, unless he or she has in the meantime, with the consent of the innocent party, embraced a state of life contrary to marriage. (Canon 1130.)
974. Other reasons for separation: if one party joins a non-Catholic sect; or educates the offspring as non-Catholics; or leads a criminal and despicable life; or creates great bodily or spiritual danger to the other party; or if through cruelties he or she makes living together too difficult, and other such reasons, which are to the innocent party so many legal causes to leave the guilty party by authority of the Ordinary of the diocese, or also by private authority, if the guilt of the other party is certain beyond doubt, and there is danger in delay.
In all these cases the common life must be restored when the reason for the separation ceases; if, however, the separation was pronounced by the bishop either for a time, or indefinitely, the innocent party is not obliged to return except when the time specified has elapsed or the bishop gives orders to return. (Canon 1131.)
975. After the separation, the children are to be placed in charge of the innocent party, and if one of the parties is a non-Catholic the Catholic party is to have charge over them, that they may be raised as Catholics, unless the Ordinary decides differently for the sake of the welfare of the children, always safeguarding their Catholic education. (Canon 1132.)
[pg. 323, Title XX Matrimonial Cases. CHAPTER I. Competent Forum] 1386. Matrimonial cases between baptized people belong by proper and exclusive right to the ecclesiastical judge. (Canon 1960.)
1387. Cases concerning only civil sequences of marriage belong to the civil magistrates, as stated in Canon 1016, if they constitute the principal action in the case; if, however, civil consequences are incidental or accessory questions in the case, they may be examined and decided also by the ecclesiastical judge by his own authority. (Canon 1962.)
(source The New Canon Law: A Commentary and Summary of the New Code of Canon Law, By Rev. Stanislaus Woywod, O.F.M. yr. 1918. pp. 205, 230 & 323)
Provincial Councils and Diocesan Synods
Herein are shown examples of acts (decrees or statutes) from provincial councils and diocesan synods that further promulgated Number 126 from the III Plenary Council of Baltimore. The Acts/Decrees from a Plenary Council were in effect for all of the United States. A provincial council sets policies for all the diocese that are under an archdiocese.
province. (1) A grouping of an archdiocese, called the metropolitan see, and the dioceses under it, called suffragan sees. The Code of Canon Law spells out certain limited obligations and authority that the metropolitan archbishop has with respect to the dioceses within his province. (from USCCB website)
New York Provincial Council 1884
The last provincial council for the dioceses under New York was the fourth council held in 1884. The Third Plenary Council of Baltimore had not yet gone into effect at that time. Ten decrees on marriage were issued by the provincial council.
30 September 1883
Acta et decreta Concilii Provincialis Neo-Eboracensis IV
Marriage: Articles XVI – XXV (pages 51-60)
New York Archdiocese Synod 1895
The eighth synod for the New York Archdiocese was in 1895 and their decrees notified reader that the Acts of Third Plenary Council of Baltimore are promulgated and binding.
20 November 1895
Synodus Diocesana Neo-Eboracensis Octava (pages 132 – 136 in collection)
1. Conciliorum Plenariorum Baltimorensium II et III, Provincialium Neo-Eboracensium decreta quibus S. Sedis adprobatio accessit, necnon Synodorum Nostrae Dioceseos superioribus annis celebratarum statuta iterum promulgamus atque servari mandamus, iis exceptis, quibus legitime derogatum fuit
[machine translate] The Plenary Council of Baltimore 2 and 3, the provincial approval of the Holy See, which they came to the decrees of New York, as well as the decrees of the order to be observed, and we promulgate it to the established way of our Dioceseos celebratarum the previous years, except for those matters, which it was deprived of
New York Archdiocese Synod 1950
The seventeenth synod for the New York Archdiocese was in 1950 and their decrees presuppose the Plenary Council again.
General Norms §3. The statutes of this Synod become effective on January 1, 1951. Thereupon all preceding particular laws of this archdiocese are revoked, unless contained in the present legislation, or established as legitimate customs not contrary to these laws. §2. Customs contrary to the decrees of this Synod, even if they be immemorial, are suppressed and should not be revived. (Authorized English Translation, page 71)
Philadelphia Provincial Council 1880
The Decree from Cardinal Simeoni, at the Congregation of the Propagation of the Faith, about the 1880 Provincial Council of Philadelphia, includes the Plenary Council of Baltimore. Council is for five dioceses: Philadelphia, Scranton, Harrisburg, Erie, Allegheny. Cardinal Simeoni’s decree is dated 1 September 1886.
The Roman Pontiffs’ Encyclical Letters which pertain in any way to the conservation of faith and conduct in their integrity are to be held in the highest esteem and received with the whole affection of heart and mind. Of these we commend to our clergy and laity the recent letters of our Most Holy Father, Leo XIII on Christian Matrimony and on the observation — or, where it has been neglected, the restoration — of Saint Thomas’s Method of teaching the theological and philosophical sciences, as documents most salutary for all times and most opportune for this age.
Philadelphia Archdiocese Synod 1934
The ninth synod for the Archdiocese of Philadelphia was held in 1934 and the first act showed that the decrees of the Third Plenary Council of Baltimore were again promulgated.
Synodus Diocesana Philadelphienis IX. 26 April 1934 (Latin and English)
Cincinnati Provincial Council Ohio 1882
The dioceses in Ohio had their fourth Provincial Council, closing on March 19, 1882. The acts of the council have a decree of Approbatio from the Prefect of the Offices of the Sacred Congregation for the Propagation of the Faith dated 30 June 1886. Some of the language about needing the bishop’s permission before filing in the civil forum for separation is exactly the same as the language in No. 126 of the Third Plenary Council of Baltimore.
Acta et decreta quatuor conciliorum provincialium Cincinnatinsium, 1855-1882. Cincinnati: Typis Benzinger Fratrum, Summi Pontificis Typographorum, 1886. (Titulus IV. De Matrimonio. Caput Unicum).
Translation: Since the Catholic doctrine that matrimonial causes belong to ecclesiastical judges is defined (Conc. Trent, Session XXIV, can. 12), it is not permitted for one to approach the civil tribunals unto the petitioning of separation from bed and board unless the cause first be approved by the ecclesiastical judge, legally only unto establishing civil considerations. Wherefore petitioners of this kind of separation from civil tribunals, without ecclesiastical authority having been consulted are to be denied absolution, and the case is reserved to the Bishop.
Los Angeles Diocese Synod 1960
The diocese of Los Angeles, while citing No. 126 from the Third Plenary Council of Baltimore, reiterated in their own diocese statutes, the requirement to have the bishop’s permission before filing in the civil forum for divorce. This requirement was already binding for those living in L.A., because the acts from the Third Plenary Council, No. 126 were binding for the whole United States.
Synodus Dioecesana Angelorum in California : septima 1960
Seventh Synod of the Diocese of Los Angeles California, 12 December 1960
Liber Tertius – De Rebus
Tit. II De sacramenetis in specie
Cap. VI De matrimonio (statuta 99-101)
99 Circa matrimonii sacrementum pastores animarum semel saltem in anno fideles doceant sequentia ex Conc. Plen. Balt. III. depromta:
99 §2 Eos omnes qui matrimonio conjuncti suni prohiberi, ne auctoritate ecclesiasiastica inconsulta, tribunalia civilia adeant ad obtenendam separationem a thoro et mensa; quod si quis attentaverit, sciat se gravem reatum incurrere et pro Episcopi judicio essse puniendum. (N 126)
Providence Diocese 1952
The Fourth Synod of the Diocese of Providence (read original)
October 8, 1952 with His Excellency, The Most Rev. Russel J. McVinney, Presiding
The diocese of Providence in Rhode Island reiterated in their own diocesan statutes the requirement to have the bishop’s permission before filing in the civil forum for divorce. Furthermore, priests and lawyers were given strict instruction.
1° It is not within the power of a pastor or any other priest to give such permission.
2° It is the duty of the pastor to do all that he possibly can to effect an understanding between married persons as soon as he is aware of serious difficulties between them, and to effect a reconciliation if perhaps they have separated on their own authority.
3° When permission is sought to apply for separation in accordance with Canons 1128 to 1131, the request shall be submitted to us through the pastor of the petitioner with an accurate summary of the whole case and the reasons justifying a consideration of the petition.
§2. Under pain of mortal sin, a Catholic lawyer may not approach the Civil Courts as attorney for a plaintiff seeking a separation, divorce or annulment of a marriage which has been contracted before a Catholic priest unless the plaintiff or the lawyer has first obtained Our permission to institute proceedings.
Portland in Oregon Provincial Council 1957
The Archbishop of Portland serves as the Ordinary of the archdiocese and Metropolitan of the Ecclesiastical Province of Portland whose suffragan dioceses cover the entire three states of Oregon, Idaho, and Montana.
Decree 310. Because of the very serious prohibition of church law, as well as because of the considerable scandal involved, the faithful shall be informed that no suit for civil divorce may be open unless permission of the Ordinary will have previously been obtained.
Decree 312. All marriage cases are to be referred to the Chancery Office by the parish priest of the plaintiff.
1983 CODE OF CANON LAW
The 1983 Code did not abolish laws promulgated for countries by those countries’ Plenary Councils.
If article No. 126 from the Third Plenary Council of Baltimore was contrary to the prescripts of the 1983 code, that would be a reason to abrogate it (but that is not the case). Moreover, the 1983 Code expressly makes a provision for particular laws (i.e. countries’ Plenary Councils’ acts) for cases of separation of spouses.
If C. Plen. Bait. III. n. 126 was a particular penal law issued by the Apostolic See and not specifically contained in the 1983 Code, it would be abrogated (but that is not the case).
Moreover, insofar as the 1983 Code repeats the 1917 Code, the 1983 canons must be assessed in accord with canonical tradition. The 1917 code had a section on separation of spouses very similar to those of the 1983 Code (see 1917 cc. 1128-1132, 1960).
Canon 87 of the 1983 Code shows that a diocesan bishop is not able to dispense from procedural laws, and the procedural law for separation of spouses is codified in the 1983 Code by canon 1692.
To repeat the aforementioned overview, Art. 126 from the Third Plenary Council of Baltimore (yr. 1885) had three substantive aspects: 1) the procedural part that requires a party to have the bishop’s permission before petitioning in the civil forum, 2) the incurring guilt part, and 3) the penalty part. All were still binding after the 1983 Code.
Furthermore, the 1983 code lists penal principles that could be applicable to marital abandoners, adulterers, or those who disobey territorial laws: canon 1371, rejecting moral teaching; canon 1371, disobeying command of his Ordinary; canon 1393 violating obligations imposed by penalty; canon 1397, gravely wounding graviter vulnera one’s spouse and children; canon 1399, externally violating divine and canon law; and canon 1717 committing a delict.
After the 1983 code was published, the procedural requirement (to have the bishop’s permission) was incorporated into canon 1692.
Excerpts from 1983 Code of Canon Law
1/ the Code of Canon Law promulgated in 1917;
2/ other universal or particular laws contrary to the prescripts of this Code unless other provision is expressly made for particular laws;
3/ any universal or particular penal laws whatsoever issued by the Apostolic See unless they are contained in this Code;
4/ other universal disciplinary laws regarding matter which this Code completely reorders.
§2. Insofar as they repeat former law, the canons of this Code must be assessed also in accord with canonical tradition.
Can. 12 §3. Laws established for a particular territory bind those for whom they were issued as well as those who have a domicile or quasi-domicile there and who at the same time are actually residing there, without prejudice to the prescript of can. 13.
Can. 20 A later law abrogates, or derogates from, an earlier law if it states so expressly, is directly contrary to it, or completely reorders the entire matter of the earlier law. A universal law, however, in no way derogates from a particular or special law unless the law expressly provides otherwise.
Can. 21 In a case of doubt, the revocation of a pre-existing law is not presumed, but later laws must be related to the earlier ones and, insofar as possible, must be harmonized with them.
Can. 29 General decrees, by which a competent legislator issues common prescripts for a community capable of receiving law, are laws properly speaking and are governed by the prescripts of the canons on laws.
Can. 32 General executory decrees oblige those who are bound by the laws whose methods of application the same decrees determine or whose observance they urge.
Can. 33 §1. General executory decrees, even if they are issued in directories or in documents of another name, do not derogate from laws, and their prescripts which are contrary to laws lack all force.
§2. Such decrees cease to have force by explicit or implicit revocation made by competent authority as well as by cessation of the law for whose execution they were given. They do not, however, cease when the authority of the one who established them expires unless the contrary is expressly provided.
Can. 34 §1. Instructions clarify the prescripts of laws and elaborate on and determine the methods to be observed in fulfilling them. They are given for the use of those whose duty it is to see that laws are executed and oblige them in the execution of the laws. Those who possess executive power legitimately issue such instructions within the limits of their competence.
§2. The ordinances of instructions do not derogate from laws. If these ordinances cannot be reconciled with the prescripts of laws, they lack all force.
Can. 87 §1. A diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church. He is not able to dispense, however, from procedural or penal laws nor from those whose dispensation is specially reserved to the Apostolic See or some other authority.
§2. If recourse to the Holy See is difficult and, at the same time, there is danger of grave harm in delay, any ordinary is able to dispense from these same laws even if dispensation is reserved to the Holy See, provided that it concerns a dispensation which the Holy See is accustomed to grant under the same circumstances, without prejudice to the prescript of ⇒ can. 291.
Can. 88. A local ordinary is able to dispense from diocesan laws and, whenever he judges that it contributes to the good of the faithful, from laws issued by a plenary or provincial council or by the conference of bishops.
Can. 135 §1. The power of governance is distinguished as legislative, executive, and judicial.
§2. Legislative power must be exercised in the manner prescribed by law; that which a legislator below the supreme authority possesses in the Church cannot be validly delegated unless the law explicitly provides otherwise. A lower legislator cannot validly issue a law contrary to higher law.
The New Commentary on the 1983 Code of Canon Law published by the Canon Law Society of America states about canon 6, 3o shows the following:
The procedural element of Art. 126 is now in the universal law, from which a bishop is not allowed to dispense; 1983 CIC c. 1692 requires the party to have bishop’s permission before petitioning in the civil forum. The incurring guilt and the penalty parts could be argued to be in effect using other canons, shown in Mary’s Advocates template petition, shown here.
The 1983 Code allows a bishop to dispense from laws issued by a plenary council whenever he judges that it contributes to the good of the faithful. However, I suggest that inaction is gravely contributing to the “bad” of the faithful. How is it good to let the civil forum purportedly relive a party of his/her obligation to maintain an intact home and tacitly condone all that ensues from unilateral no-fault divorce?