Separation and Civil Divorce, Kelly 1946

About the author: When Msgr. James Kelly was president of the Canon Law Society of America in 1942 (source, CLSA conventions 1942) and served on the Tribunal of the Archdiocese of New York.

page 198-199

B. Temporary Separations

Temporary separations may be granted either for a definite time or for an indefinite period and for a variety of causes. However, in all temporary separations the parties are obliged to resume cohabitation whenever the cause ceases, on account of which the separation was granted. If, however, the separation was granted for a definite period the innocent party is not obliged to return until the time set by the decree of separation has elapsed, unless the Ordinary by a new decree orders his return. If the separation was granted for an indefinite period the guilty party must prove that the cause of the separation no longer exists, and a new decree should be issued ordering the parties to resume cohabitation.

[ …  199 . 199 ] The cases of temporary separation adjudicated by the Sacred Roman Rota would seem to be the best and most authentic guide to the mind of the Church with regard to the question of what constitutes a “just cause” for temporary separation. A perusal of these cases, I think, will leave one with the impression that the Church is most severe in this matter and very reluctant to grant even a temporary separation to Catholic consorts. The reason for this attitude is given in one decision, which reads in part as follows:

“It has been the constant jurisprudence of this Sacred Tribunal and of the Sacred Congregation of the Council that great caution should be used in granting separations from bed and board, because separation is directly opposed to the very purpose and ends of marriage; it gives rise to scandal; it destroys the family; it exposes the consorts to the danger of incontinence; and it inflicts a severe loss on children, if there are any. The Most Reverend Auditors of this Tribunal are convinced therefore that they must adhere even more rigidly to this very wise jurisprudence of the Holy See, now when modern customs are tending to scuttle with facility all conjugal rights, either ‘per divortium plenum sive per divortium semiplenum.‘ There is no one who does not know that if ‘divortium semiplenum‘ is easily granted, the way is made easy for ‘divortium plenum.’ For matrimony exists also as a remedy for concupiscence and, if common life is dissolved by separation, immediately it opens the door to adulterous amours and illicit associations.” [note 32. S. Rom. Rotae Dec., Vol. II (1910), Dec. XXIV, n. 11.]

This decision, written by the eminent Cardinal Lega, goes on to reprove some of the modern theologians (mentioning by name Gennari, Lehmkuhl, Gury and Scavini) who “seem to have departed somewhat from the rigor of this older jurisprudence,” and the decision continues to show how necessary it is now more than ever to adhere to the jurisprudence of the Holy See in view of the definite breakdown in morals and change in customs in these times. [note 8. S. Rom. Rotae Dec., Vol. II (1910) Dec. XXIV, n. 13.] Although this decision was written thirty-five years ago, the Rota, even in more recent cases, does not seem to have departed from this norm.

page 219

MAY A CATHOLIC SEEK A CIVIL DIVORCE

A. When His Marriage is Null or is Already Dissolved

The question now arises whether, in view of the position of the Church on this matter, and in view of the direct prohibition of the Third Council of Baltimore, it is ever licit for a Catholic to approach the civil courts seeking the dissolution of his marriage. It is certain that a Catholic is never permitted to approach the civil courts seeking the dissolution of his marriage without the permission of the Holy See or of the local Ordinary. But when may the local Ordinary grant this permission [220 . 220]  to a Catholic? It is also certain that a local Ordinary may permit a Catholic to seek a civil divorce, after his marriage has been declared null by canonical process, or after the bond has been dissolved by the Holy See, or after the Ordinary has declared that the requirements of the Sacred Canons are present for the use of the Pauline Privilege, provided that the Ordinary in these cases makes it clear that he is permitting this merely to protect the property rights of the Catholic against a consort who is not really his spouse, (or who is no longer his spouse), or to assure civil recognition of any future marriage he may enter, or to avoid the danger of the Catholic being charged with bigamy under the civil law, if and when he enters another marriage which he now has the right to do.7 ” If it is possible to obtain a civil annulment in such cases, this, it would seem, is to be preferred, for, although the State is also incompetent to annul the marriage of baptized persons, the granting of an annulment does not have the stigma of an attempted violation of the Divine Law on the part of the State which the granting of a civil divorce entails. This would seem therefore to be the lesser of the two evils, and to be preferred when it can be obtained.

B. When the Bond of a Valid Marriage Still Binds

But when the bond of a valid marriage remains, may the local Ordinary ever grant permission to a Catholic to seek a civil divorce? This question has been a burning issue since the time of the Protestant Reformation, and particularly since the time of the French Revolution, when the modern states began to usurp the authority of the Church on this matter.79

Particular Responses of the Holy See

Some of the older theologians and canonists held that the granting of a civil divorce was so evil in itself, and so devastating in its effects on the morals of the consorts, the families, and the states involved, that it was never licit for Catholics [ 221 . 221 ]  to approach the civil courts for a civil divorce.80 Several of the Bishops of France and Belgium, at the latter part of the last century and during the early part of the present century, submitted cases to the Holy See requesting permission for Catholics to seek a civil divorce. In all these cases the Catholic petitioner had already been granted a permanent separation from his spouse because of the sole canonical reason for which such a separation is granted, namely, adultery. In all these cases, also, the Catholic petitioner had solemnly promised that he would never attempt another union while his true spouse still lived. In all these cases the reason given for seeking the permission was the protection of the civil rights of the Catholic. The first case was the case of a woman who sought a government position in order to earn her livelihood. The government of France at that time would not grant this position to the woman unless she were civilly divorced from her husband. The Sacred Penitentiary, on January 5th, 1887, replied:

“Mulieri poenitenti, in casu, nihil aliud esse consulendum, nisi ut a petendo divortio sub gravi se abstineat.”

Four years later, on January 14th, 1891, the Sacred Penitentiary refused to grant this permission to another woman who sought it “ad damna gravissima avertenda.” Another woman, who sought permission to obtain a civil divorce in order that she might provide for the temporal and religious education of her orphaned granddaughter, was told by the Sacred Penitentiary, on June 3rd, 1891:

“Petitam licentiam concedi non posse.”

Later a Catholic man sought this permission in order to prevent his adulterous wife from obtaining a portion of his property. On January 30th, 1892, the Sacred Penitentiary replied:

“Orator consulat probatos auctres.” 81 [ 222 . 222 ]

Finally a case was presented to the Supreme Sacred Congregation of the Holy Office in which the question was asked whether a woman could be permitted to seek a civil divorce “ob gravissimas causas? ” On August 6th, 1906, the Holy Office rdplied:

“Attentis peculiaribus circumstantiis in casu concurrentibus, permitti posse, dummodo mulier oratrix coram Ordinario vel eius delegato ac duobus testibus, etiam iureiurando, declaret se matrimoniale vinculum nullatenus abrimpere, sed tantummodo a civilis ritus oneribus exsolvi velle; remoto scandalo quo meliori iudicio Episcopi fieri potest.” 82

General Conclusions from Responses of the Holy See

According to Gasparri, the Sacred Penitentiary has accepted this norm and has followed it since 1906.3 1 have been unable to find any more recent pronouncement of the Holy See on this matter, although I know of one particular case in 1945 in which the Holy Office replied in the selfsame words as quoted above in the response of August 6th, 1906.

Taking these private responses of the Holy See as a guide and reading them in the light of the doctrinal and juridical position of the Church, we may conclude:

1) That the granting and obtaining of a civil divorce is not, in itself, intrinsically evil, as some of the older canonists and theologians maintained, for, if it were, the Holy See would never have permitted it even in one case;

2) That, since the Holy See has refused permission for a Catholic to seek a civil divorce in every case which has been published save one, and since in that one case the circumstances and the motivating reason for the permission were not explained (except to state that they were most weighty), it would seem that we must proceed with the utmost caution in this matter, for seldom will we have any more deserving cases than those already refused this permission by the Holy See; [ 223 . 223 ]

3) That we must not be too much swayed by the fact that the Catholic may suffer material loss if denied this permission, for the denial by the Holy See in the cases mentioned above undoubtedly worked great hardship on the Catholics involved, and it must be remembered that it is sometimes necessary for a Catholic to suffer material loss in his private affairs in order to avoid doing greater harm to the public good.

These general conclusions being posited, let us now examine, in more detail, the question whether, and under what conditions, an Ordinary may permit a Catholic to seek a civil divorce while the bond of a valid marriage remains.

Opinions of Canonists and Theologians

Most modern authors, writing since the Holy Office granted that one permission in the particular case in 1906, have assumed that the policy of the Church has become less severe on this matter (an assumption which is hardly warranted, I would think, when based on only one private response in a particular case).8 Many of these authors express rather lax opinions, and the treatment which almost all of them give to this subject is vague, confusing, and generally unsatisfactory. 85

Many argue that since, in most countries, no other way can be found under the civil law to protect the property rights, and other civil effects flowing from the marriage bond, a Catholic must not be deprived of this protection and therefore should be given the permission to obtain a civil divorce .even while the ‘bond of a valid marriage remains. This argument in various forms is the principal reason offered by those who advocate granting permission to Catholics to seek a civil divorce.8 In reply to this argument we must state, in the first place, that in this country it is not always true that the sole means of [ 224 . 224 ] protecting the civil rights of a Catholic is by obtaining a civil divorce, for sometimes the property rights of a Catholic can be safeguarded equally well by permitting him to obtain a separation a mensa et toro manente vinculo from the civil courts, after he has been granted an ecclesiastical decree of permanent separation.8 7 At other times a private agreement or property settlement can be arranged between estranged spouses which, I am informed, is enforceable in civil law in every state. At other times the Catholic may so dispose of his property while still living that it will not fall into the hands of an unworthy consort at his death. Therefore it is not always true that the sole means of protecting the property rights of a Catholic is by permitting him to obtain a civil divorce. In the second place, not every separated spouse has a strict right in justice to the protection of the civil law for his property, but only he who is the innocent spouse of an adulterous consort, for only he has the right to break permanently “the communion of conjugal life” which is a mutual sharing in each other’s possessions.88 Thirdly, even when a Catholic has the right to the protection of the civil law over his property, [ 225 . 225 ] and even when this protection can be obtained only by permitting him to seek a civil divorce, this reason is a good of its nature private, so that his private good must be weighed against the public good and the harm done to the public order by civil divorce. Viewed in this light, it would seem that this reason in itself cannot be considered as proportionate to the public evil of divorce, and therefore this reason alone would appear to be theologically insufficient to permit a Catholic to seek a civil divorce.89 The argument, therefore, that a Catholic must not be deprived of the protection of the civil law over his property, is not as decisive and as compelling as many would have us believe, but it is rather only one aspect of a complex problem and to my mind not the most important aspect.

Others argue that every Catholic knows that the civil court cannot dissolve the bond of marriage, and that when a Catholic obtains a civil divorce, solely to protect the mere civil effects of the bond, he is doing nothing contrary to the law of the Church, since Canons 1016 and 1961 acknowledge the competence of the civil law over the mere civil effects of the bond. The granting and obtaining of a civil divorce, therefore, is an indifferent act. This argument, I think, is unrealistic and does not take into account the secularist mentality which is so general today, and the effect that the widespread granting of civil divorce is having on Catholics. I think that a consideration of the subsequent actions of many Catholics who have obtained a civil divorce, which we have described above, is the best answer to this argument, for, as we have noted above, very many, if not most of them, eventually enter an adulterous union. Furthermore, it can hardly be denied that the impression is growing stronger each day, even among Catholics, that the State has the right to dissolve the marriage bond, and the action of a Catholic in obtaining a civil divorce, even if only for its civil effects, fosters and strengthens this false impression. Moreover, this action fosters and strengthens the perverted notion that the State has sole and exclusive [ 226 . 226 ] jurisdiction over the marriages of all of its citizens, and that the Church has authority merely to “bless” a marriage. The prevalence of this perverted idea, I think, can be judged by the number of Catholics who go through only a civil ceremony of marriage, and by the number of single Catholics who become involved with divorced non-Catholics 9 0 and eventually live with them in adulterous unions after only a civil ceremony. Such people insist that they are married, although their marriage is not “blessed.” This secularist mentality with regard to marriage seems to be growing quite rapidly among American Catholics and the obtaining of a civil divorce by a Catholic, even if it is done only to safeguard his civil rights, confirms and corroborates this false and perverted concept. For these reasons I do not believe that the argument to the effect that Catholics know that the civil courts cannot dissolve the bond of marriage is realistic or valid, for it fails to take into account the evil effect the granting of a civil divorce has on the individual Catholic (who is then gravely tempted to commit public adultery) and it ignores the harmful effect the granting of a civil divorce has on other Catholics as noted above.

Others offer a similar argument to the effect that a civil divorce merely breaks the civil bond of marriage and its consequent civil effects, but does not break the real bond as every Catholic knows.91 In reply we need only point to the teaching of both Leo XIII and Pius XI to the effect that there is no such thing as a civil contract or civil bond of marriage. There is only the natural contract and the natural bond, or the sacramental contract and the sacramental bond, both of which are per se indissoluble by divine law, and neither of which is subject to dissolution by the civil authority.92

[ 227 . 227 ] Other more pragmatic arguments are offered by those who advocate freely allowing Catholics to seek a civil divorce. One is that the Holy See knows that many Catholics are obtaining civil divorces and has made no direct prohibition and has issued no general decree on the matter, thereby tolerating the situation. 3 By such reasoning, I think, almost any abuse, and practically every crime, could be justified. Another pragmatic argument for this position is that the Church in this country places itself in danger of being sued in the civil courts for alienation of affection, or for interference in the business of the State, if it insists upon passing judgment on the validity of a marriage, or dissolving the natural or unconsummated bond, before the State has issued a civil divorce. I do not think it is necessary to answer this cowardly plea to abandon the juridical position of the Church merely because there is danger of conflict with a civil law. However, I might state that I think the danger of such a contest, in a practical case, is extremely remote.

Finally, most practical canonists in this country seem to take the position, that the matter is doubtful, and, inasmuch as there is no definite prohibition by the Holy See, a Bishop in this country may dispense from the law of the Third Plenary Council of Baltimore and permit a Catholic to seek a civil divorce to protect his property rights, even while the bond of a valid marriage still exists.

Opinion of the Author

I cannot say that I agree with this position. To my mind the matter is not doubtful. The juridical position of the Church is clear, viz. that the civil authority is utterly and absolutely incompetent to dissolve the bond of marriage existing between any man and woman, whether baptized or unbaptized, and when it attempts to do so, it violates the law of God, usurps the jurisdiction of the Church, and its action is [ 228 . 228 ] juridically null and void. To permit a Catholic to seek a civil divorce, even if only to protect his property rights, forces Catholics to acknowledge the right of the State to dissolve the marriage bond and gives rise to a growing secularism among Catholics relative to marriage, and places these civilly divorced Catholics in the proximate occasion of sin. The results of following this policy of indecision and confused thinking are evident in the appalling conditions existing in our country today, and unless a definite and unified stand is taken on this matter with regard to Catholics, these conditions will undoubtedly grow worse, and many more souls will be lost to Christ and to His Church. Therefore, I conclude with certainty that a Catholic may not be granted permission to seek a civil divorce, even if only for the protection of his property rights, at least until the following conditions are verified:

1) The Catholic can obtain the protection of the civil law for his property in no other way.

2) The Catholic has an indubitable right in justice to the protection of the civil law for his property. This right to the protection of the civil law can only be considered indubitable after he has obtained an ecclesiastical decree of permanent separation from his adulterous spouse, for only then can he be considered to have a “just cause” for permanently severing the “communion of conjugal life” which is the mutual sharing in each other’s possessions. If only a temporary ecclesiastical separation, even for an indefinite period, has been decreed, the obligation remains to resume cohabitation and common life as soon as the cause ceases because of which a temporary separation was granted. To permit a Catholic to seek a civil divorce in these circumstances would be unjust to the other consort for this would be denying permanently to the other spouse his right to share in their community of goods, whereas the reason present justifies only a temporary denial. Moreover, as practical experience proves, a civil divorce would create a serious obstacle to the resumption of common life after the cause had ceased for which the temporary separation was granted. The granting of a permanent ecclesiastical separation would seem to be a conditio sine qua non to the granting of permission to seek a civil divorce for another reason also, for only [ 229 . 229 ] by doing so can we maintain, in a practical case, the right of the Church to sole and exclusive jurisdiction over the marriage bond of baptized persons, and bring out the reality of the assertion that the civil divorce is sought only to protect the merely civil effects of the contract. Therefore, it seems clear that a Catholic has not the right to the protection of the civil law for his property and may not seek a civil divorce unless he has received an ecclesiastical decree of permanent separation.

3) There must be present a cause which is proportionate to the evil before a Catholic may be permitted to obtain a civil divorce, even if only to protect his civil rights. Since the evil of civil divorce is an evil of the public order, as well as private, the cause must be one of the public or supernatural order, if it is to be considered as proportionate to the evil. Therefore, it would seem that the protection of the property rights of a Catholic, in itself, is not sufficient cause to permit him to seek a civil divorce.

4) The Catholic must declare, under oath and before the Ordinary or his delegate and two witnesses, that he does not recognize the authority of the State to dissolve the bond of marriage, and that he is seeking this civil divorce merely for the civil effects which will follow and to which he has a right. Only thus can the sole and exclusive competence of the Church over the bond of marriage of baptized persons be upheld before this Catholic, and before Catholics in general.

5) The Catholic must solemnly promise that he will not attempt another union during the lifetime of his true spouse, and that he will do his utmost to preserve perfect chastity. Only thus can the serious character of this obligation be impressed upon him, and only thus, it would seem, can he be made aware of the proximate danger of incontinence which the obtaining of a civil divorce brings upon him.

6) No scandal will rise from the granting of permission to this Catholic to seek a civil divorce, in view of all of the circumstances of the case.94

[ 230 . 230 ] It seems certain that only after all six of these conditions have been verified, in a particular case, may an Ordinary even consider granting permission to a Catholic to seek a civil divorce. But after these conditions are verified it might still be doubted that an Ordinary may grant permission to a Catholic to seek a civil divorce, for, although de iure, as the guardian of the public and private morals of those committed to his care, he would seem to have the right to grant this permission by virtue of his office, yet, de facto, he would hardly ever be presented with a case more deserving of the permission to seek a civil divorce for its civil effects than has already been refused by the Holy See, as noted Above. Therefore, it would seem to be more prudent for the Ordinary, even when the conditions mentioned above have been verified in a particular case, to refer the matter to the Holy See, especially since, in the one published case allowed by the Holy See, the circumstances of the case and the reasons for granting the permission were not made known, so that we are without criteria for judging what the Holy ‘See regards as “most weighty circumstances and reasons.”

If these conclusions appear to be too severe, at least it must be admitted that they seem to be demanded by the laws of logic as well as the rules of moral theology and canonical jurisprudence. If they will work a hardship in the case of many Catholics who have unworthy consorts, perhaps that is the price which must be paid to protect the divinely decreed indissolubility of Christian Marriage. If this appears to be a “hard saying,” it must be remembered that the reward [ 231 . 231 ] promised to those willing to pay the price, is an eternity of happiness.

The key to the control of the divorce evil among Catholics, therefore would seem to be the enforcement of the strict discipline of the Holy See with regard to the separation of consorts. If Catholics were made to realize that they were not permitted even to separate on their own authority (except in the rare cases mentioned in the law), and if Catholics were made to realize that they could not approach the civil courts even to seek a decree of separation until after the Church had granted a decree of separation for a just cause, the number of Catholics seeking a civil divorce would be greatly reduced. Of course this presupposes that the necessary canonical machinery in the Episcopal Curia has been set up for the handling of separation problems.