Abolishing Canon Law, Tacitly Condoning No-Fault Divorce

Does one of the most prominent teachers
about Catholic divorce want the church to
abolish the canon law on separation and divorce?

Months ago, I had written to Rose Sweet about her teaching on divorce for Catholics. On Dec 4, 2014, she wrote that she has a trusted canon lawyer who’s also a faithful Catholic helping her get the correct language to address this. On Feb 14, 2015, she wrote “I have been open to you and willing to tweak the CDSG website to the degree I believe best at this time. I know you believe differently. Let’s please leave it at that.”

January 27, 2016 – As Director of Mary’s Advocates, a non-profit organization upholding marriage against no-fault divorce, today I’m sending my first open letter to Rose Sweet, the producer of the Catholic’s Divorce Survival Guide .

The Catechism teaches that divorce has a contagious effect and is a plague on society (2385). I propose that popular programs for separated and divorced Catholics are making the problem worse rather than better. In most cases, the programs neglect providing true mercy for the party that filed for civil divorce. Focus on the Family shows that, “The majority of divorces in this country are what psychologists call ‘low conflict’ divorces. That means there are no huge fights, no domestic abuse, couples simply say they ‘fall out of love’ and that their spouse is ‘no longer meeting their needs'” (Maier, 2008).

People are filing for divorce for the reason described in chapter 19 of Mathew’s Gospel. Jesus said, “Because of the hardness of your hearts, Moses allowed you to divorce your wives, but from the beginning it was not so.” On the USCCB’s Evaluation of Conscience for Married Persons, readers can see patterns exhibited by those who file for no-fault divorce in ‘low conflict’ marriages. The difference between those who file for no-fault divorce and the defendants is that the defendants know they are sinners working to improve with God’s Grace. Though the defendants have done nothing grave enough to justify separation, “the spouses who are not happy and who want to pursue divorce … most often refuse to address their own weaknesses. Instead, they portray themselves as victims of insensitive treatment or emotional abuse” (Fitzgibbons).

The root cause of hardness of heart is sin, and true mercy requires the admonishment of sinners. The goal of admonishing sinners is not to diminish, humiliate, and scorn, but to love. The goal is to call a sinner to be truly satisfied by living out his God-given dignity. One’s joy is found in being a magnanimous husband (or wife) as vowed when promising to love the other in good times and in bad, and in sickness and in health. In the modern age, divorce lawyers and judges do not appear to care about this.

Austen Ivereigh, author of The Great Reformer: Francis and the Making of a Radical Popeshows the Pope’s concern about our age:

What disturbs Pope Francis about the modern age is its corruption, which he defines as a mental habit, a way of living, in which ‘we no longer feel the need for forgiveness and mercy, but we justify ourselves and our behaviors.’ The world is sick because ‘either it does not know how to cure its wounds or it believes that it’s not possible to cure them’ (Ivereigh, 2015).

When pastoral programs for divorce skip over admonishing the sinner (by disregarding canon law on separation of spouses), the programs leave the sinner experiencing the natural consequences of his sin. This occurs in multiple ways:

• Professed Catholics teach that the Church has no opinion about divorce, supposedly because the civil courts only adjudicate the merely civil effects of marriage and the Church only cares about the validity of a marriage.
• Those in valid marriages are given decrees of nullity by tribunals that misapply the grounds and procedure in canon law (Morlino).
• There is no attempt to invoke restorative justice where the one causing the breakup of the couple is expected to repair—as much as humanly possible—the damage he or she caused to the other spouse, the children, and the community at large.

In dioceses where over 98% of the annulment petitions are granted, I believe that many priests and faithful are disheartened. Wouldn’t a priest conclude that his premarital investigation is a joke? Some premarital investigations now include psychological testing, and interviews of the best man, maid of honor, and the parents of the bride and groom. No matter how thoroughly a priest investigates a couple before marriage, he has seen that in his diocese, at the request of either party, the tribunal will grant an annulment decree to virtually every petitioner. The faithful ask why should anyone bother marrying in the Church at all, because any marriage investigated would be found to be invalid.

I ask the Church to implement canon law on separation because it could be a deterrent to unjust no-fault divorce. In some cases, the party thinking about divorce will follow the direction of the Church and work with those experienced at helping couples, rather than hiring divorce lawyers. In other scenarios, the Church’s decision will have the effect in the civil forum because the Church can be a third party arbitrator. When grounds for separation do exist, the Church could instruct parties of their obligations toward each other and their children that are in accord with Divine law (which is in the job description of the Church as part of implementing canon law on separation of spouses, c. 1692).

For those who care enough about marriage to want to marry in the Catholic Church, it should not be too much to ask them to follow what they agreed to follow when marrying (i.e. raise children in accord with the law of Christ and His Church). Because Rose Sweet, producer of The Catholic’s Divorce Survival Guide is a prominent spokesperson about divorce, I am publishing an open letter to her.

When canon law on separation of spouses is not implemented, families in any of the scenarios
illustrated in the above graphic, are all treated the same (A-D). They are forced through no-fault
divorce by the petitioning plaintiff. The civil forum makes no distinctions the way the Church would.

Open Letter to Rose Sweet, Producer of The Catholic’s Divorce Survival Guide

January 27, 2016

Dear Rose,

When speaking about divorce, will you please kindly consider consistently mentioning the full teaching of the Church on separation and divorce? This can help stop the spread of the plague of divorce.

I ask you to consider excerpts from a radio interview you did in September 2015, and see my response to each. You first say that the Church has no teaching about divorce. Only after the host alludes to something about just reasons for divorce, do you then say that the Catechism does have teaching on divorce, and that divorce should be rare. After being questioned by a caller about the canon law on divorce, you say that the canon law is old and impractical. It sounds like you think it would be good to eradicate the law.

I imagine Catholic radio listeners would tend to favor the longstanding practice of the Church, rather than overturning canon law.

find full interview with Patrick Coffin on Host’s website

CUT 1 — You say first that Church has no teaching on divorce.

You say that the Church does not have any teaching about divorce because this is only a civil term, and the Church understands that sometimes divorce happens. Audio link and text at left.

Bai’s Response:

Your statement could confuse listeners for two reasons: 1) the Catholic Church does have teaching on divorce though you say it does not, and 2) divorce is not something that simply happens; it is a willful choice of the person that files in the court for divorce.

The Catechism teaches that divorce is a grave offense against nature and immoral, and is only tolerable in certain circumstances as described in canon law. This exception is specified in Catechism number 2383 which footnotes the five canons on separation of spouses in the Sacrament section of canon law (c. 1151-1155). Relative to separation, the procedural section of canon law is elsewhere (Processibus Specialibus cc. 1692 —1696). The restriction against dispensing Processibus laws is in canon 87 (non tamen in legibus processualibus). On Mary’s Advocates syllabus page are listed 29 Roman Rota cases on separation of spouses, some of which are available in English.

Regarding divorce, you said the Church “understands we go through that sometimes.” This misrepresents divorce, suggesting that it is something that just appears in front of us on the road, like a fog, but that is not how divorce happens. Divorce is a willful choice of one spouse who files for civil divorce, who may not have a morally legitimate reason. Mike McManus, founder of Marriage Savers says, that “In four out of five marriages one spouse opposes the divorce, but cannot stop it because No Fault Divorce allows one person to force the divorce” (McManus, 2009). Dr. Richard Fitzgibbons, founder of the Institute of Marital Healing, says that in the past forty years, he has never worked with a Catholic marriage in which both spouses wanted a divorce (Fitzgibbons, 2015).

I ask you to use more accurate terminology. Divorce is the process whereby parties put in the civil record, the separation of spouses. They make a public record of their separation plan, including the split of assets, children, and any financial support. With the onset of no-fault divorce, most separations (called civil divorce) occur when there are no legitimate reasons for the petitioner to seek a separation. Each defendant in no-fault divorce must choose whether to capitulate to the coercive civil system by signing a divorce agreement that he knows is immoral and hurtful to his children who have a natural right to an intact home. Otherwise, he risks being subject to the plan decided by a civil judge that might be better or worse. Depending on the diligence of the local enforcement agencies, the civil forum might enforce the financial support plan and or parenting schedule.

CUT 2 — Now, you say the Church does have teaching on divorce. You say the Catechism shows divorce is tolerable in extreme, rare cases. You suggest that justice is available in the divorce courts. Audio link and Text at left.

Bai’s Response:

It sounds like you are contradicting yourself which may confuse listeners. Only after the host says something about the Church teaching on divorce, do you talk about that teaching.

In your example of a woman whose husband is a gambling addict and adulterer, you say she could hire a lawyer to help. Do you believe the woman will get justice in the civil forum? In no-fault divorce, the lawyers and judges (by default) split all the assets and debt equally between two parties. In your example, there are no assets left. If the woman’s husband had accumulated any debt, unless he volunteers to accept his responsibility for the debt, the court will likely impute both parties equally with the debt and the wife will be chased by the mortgage company and the tax man for overdue payments.

The no-fault divorce courts are not interested in expecting one to uphold the obligations to support his family. Neither are they concerned with children being raised in a moral environment. The party who has done nothing grave enough to justify separation loses most or all of the support that used to be provided by the other spouse. Moreover, civil courts make matters worse, when they order the innocent party to give half the assets to the party causing the breakup and pay the other support. In your example, if the woman goes to divorce court, the state will purport to have jurisdiction over the children’s upbringing. They will be ordered to spend overnight visits with Dad, in his new place which could easily be the residence of his adulterous partner. The courts have no interest in protecting children from being given scandal.

Constitutional law expert, Stephen Safranek, says that the state should not have the power to force the no-fault divorce system on those who enter religious marriages. Those who enter religious marriages should be able to choose, at the time of marriage, that they want their Church’s system for handling separation of spouses to be their dispute mechanism. He said, “If we can at least get the state to recognize that people who enter into these more serious forms of marriage, need to be treated in the way that they expected to be treated, we can save marriage in America” (Safranek, 2005).

Scripture teaches that when one has a dispute “does he dare go to law before the unrighteous instead of the saints?” (1 Corinthians 6:1). We should settle our marital disputes so that biblical principles are applied and separation plans are in accord with divine law. Jesus taught that if your brother sins against you and will not listen to you or witnesses, you should go to the Church, so he might “listen to the Church” (Math. 18:15-17).

CUT 3 — Though you portray yourself as an expert on marriage, divorce, and annulment, you downgrade the canon law on divorce. Audio link and Text at left.

In cut 3, a caller asked you whether a party is required by canon law, to get anyone’s permission before petitioning in the civil forum for divorce. The caller questioned you about your webpage titled “is divorce a sin.” In your answer you said the canon law is old, and that it would not be practical for a bishop to follow canon law which requires parties to get the bishop’s permission before filing for divorce. You speculated that in your diocese, if 5% of the people wanted divorce, there would be 50,000 petitions to the bishop. It sounded like you think it would be good to eradicate this canon law. The host deflected the caller’s question about the teaching on your website, by saying that the caller had a disagreement with the caller’s bishop.

Bai’s Response:

I was somewhat surprised that you thought that the existing canon 1692 was old, and you suggested that it should no longer be used. I’m even more surprised that you suggest that because we have a rampant divorce culture, we should disregard the law. I think it should be the opposite. Living in a divorce culture is all the more reason to implement the canon laws on separation and divorce that are a deterrent against immoral divorce.

Going back for centuries, Catholics were not supposed to file for civil divorce without having the bishop’s permission. This was the required practice in the U.S.A. before the 1917 code, and is included in the 1983 code. In the Library section of Mary’s Advocates’ homepage, I point to many Church writings about this canonical requirement, including the records from the Vatican’s committee that drafted this section of the canon law. A canon lawyer I know, who worked as a staff canon lawyer for 3 years at the Roman Rota, told me he would be pleased to speak on radio about this canon law requiring a Catholic to have the bishop’s permission before filing for a divorce.

As an expert on divorce, I thought you might know the real estimate of the number of Catholics who file for divorce in your diocese. Your Diocese of San Bernardino reports in the 2015 Kennedy Directory that 1,728 marriages were celebrated. If Catholics’ ratio of weddings to divorce is the same as the whole country, there would be about 850 divorces occurring that year. This is nowhere near the 50,000 estimate given in your radio interview.

No doubt, it would require diocesan resources to conduct investigations before a Catholic filed for civil divorce, but this doesn’t seem like a reason to eradicate the canon law. Dioceses dedicate resources to implementing other canon laws. For example, they have instruction before confirmation (c. 890) and infant baptism (c. 851). They establish tribunals for judicial cases (c. 1400-1670). The conference of bishops enforces norms for the examination of spouses before marriage (c. 1067) and for adult initiation into the Catholic Church (c. 851, 865).

If you believe the canon law on separation of spouses should be abolished, can you help me understand why? I have several guesses:

1) If the Church investigated couples wherein one wanted to file for divorce, investigators would find that in most of the cases, no ground for separation existed; the reason to avoid investigation is that the Church has no interest in figuratively standing beside the spouse that does not want divorce and instructing a Catholic who is forcing divorce on his family that he is doing something gravely wrong.

2) If the Church were to investigate couples wherein one wanted to file for divorce, the Church would be required to determine the parameters of separation plan that would be in accord with divine law, even for parties that are not in a valid marriage (c. 1689, 1692); the reason to avoid investigations is that the Church prefers to defer all cases to the civil forum, even though the civil forum disregards the Church’s requirements. The Church requires a) a party to provide his full share of help mutuam aditorium, b) a party to maintain the common conjugal life unless the other has done something grave enough to justify separation, and c) that we avoid giving scandal to children.

3) If the Church were to investigate whether there is a legitimate cause for separation wherein one person wanted a divorce, the investigators would be diverted from the question of separation, and instead decide that for virtually all cases, the root cause (of either party not experiencing the community of life and love to his satisfaction) is that the marriage is invalid; the reason to avoid any investigation questioning whether there is a legitimate basis for separation of spouses is because the Church presumes that in all cases, the marriages are invalid.

In the United States, there is a segment of dioceses wherein I think my third scenario is, in practice, already happening. In 2012, in 62 dioceses wherein half of the population of U.S. Catholics reside, annulments were granted to 98.7 percent of the petitioners. The annual total expenses of these diocese tribunal is over 15 million dollars.

Sincerely Yours in Christ,

Bai

Contrast EWTN Vice President Theology

From Open Line, Friday with Colin Donovan
1/15/2016 (Min:Sec: 19:03-24:50)

Bibliography

Fitzgibbons, R. (2015, November 9). Psychological Science and the Evaluation of Nullity. Retrieved from The Catholic Thing: http://www.thecatholicthing.org/2015/11/09/psychological-science-and-the-evaluation-of-nullity/

Ivereigh, A. (2015, January 20). Making mercy real. Retrieved from Mercatornet: http://www.mercatornet.com/above/view/making-mercy-real/17478

Macfarlane, B. Terms of Marriage and Divorce. Retrieved from Mary’s Advocates: https://marysadvocates.org/terms/terms.html

Macfarlane, B. Syllabus, Roman Catholic Sources for Teaching. Retrieved from Mary’s Advocates: https://marysadvocates.org/syllabus/syllabus.html

Maier, B. (2008). Dr. Bill Maier on Divorce. Retrieved from Focus on the Family: http://www.focusonthefamily.com/marriage/divorce-and-infidelity/should-i-get-a-divorce/maier-on-divorce

McManus, M. (2009). Reform No Fault Divorce: An Economic Stimulus? Retrieved from Marraige Savers: http://www.marriagesavers.org/sitems/Resources/Articles/Art008ReformNoFaultDivorce.htm

Morlino, Robert. Bisop of Madison WI. (2015, September 11). World Over – 2015-09-10 – Full Episode with Raymond Arroyo. Retrieved from EWTN YouTube: https://www.youtube.com/watch?v=IeFVsEqvG78#t=22m11s

Safranek, S. (2005, December 17). Defending Families Against Forced No-Fault Divorce. Retrieved from Archive.Org: Defending Families Against Forced No-Fault Divorce