- Posted by Mary's Advocates
- On June 3, 2020
Should civil no-fault divorce control Catholic families?
by Bai Macfarlane.
A husband, who tells Mary’s Advocates that his wife abandoned his marriage, is inviting the Church to instruct his wife of her obligation to maintain an intact home for their children and himself. We’ll call the husband Dave. He’s waiting for his wife to cooperate with experts who successfully help couples reconcile (like Marriage Helper 911 Workshop or Retrouvaille), but she refuses. With Mary’s Advocates’ help, David sent his Tribunal a petition based on the canonical principle that the faithful can vindicate their rights in a Catholic tribunal trial (cf. can. 221). David’s petition was rejected by the lead judge of his diocese’ three-judge panel. The rejection was based on quotes from a 2019 Vatican appellate decree issued by judge Fr. David Jaeger at the Tribunal of the Roman Rota.(*Note)
Rota Judge Fr. Jaeger (as quoted by Dave’s local tribunal) indicates that a petitioning spouse has no right to vindicate his right to an intact marital home if he wants reconciliation. By studying historical decisions of the Roman Rota, I’ve found that “malicious abandonment” by the other spouse is a basis for a petitioner’s case. If Dave agreed to his wife’s separation, it wouldn’t be abandonment. The petitioner’s interest in reconciling can be viewed as synonymous with the petitioner vindicating his rights to “the common conjugal life” (cf. can. 1151). Specifically, when rejecting Dave’s petition, the local judge stated that there is no basis in law for his petition quoting Rota Judge Fr. Jaeger “‘a judgment about the right and duty of conjugal living is first and foremost moral; it is to be brought before the forum of conscience, and no one is to be compelled in the external forum positively to provide that’.”
I find this dumbfounding because it substantially eliminates the possibility of anyone ever abandoning a marriage. All spouses who force a no-fault divorce on the other have their own reason in their conscience. A wife can feel annoyed by her husband’s new-found enthusiasm with his Catholic faith, use the civil forum’s no-fault divorce to forcibly deny him everyday access to his children, and take half the property he accumulated during the marriage. In her conscience, she decided her actions are moral. A husband can feel sexually attracted to younger women, want to enter the dating scene, use the civil forum’s no-fault divorce to forcibly deny his wife everyday access to their children, and force her to financially support herself in a household in which she loses most of the support he provided to their previously intact marital home. In his conscience, he decided his actions are moral. In the United States, many priests teach that the Church has no interest in how obligations of spouses are arranged by no-fault divorce courts. I imagine these priests mistakenly believe that divorce courts manage only the merely civil effects of marriage. But that is not true. Divorce courts purport to permanently relieve a Catholic spouse of the obligation to maintain the common conjugal life, properly raise and educate children, and contribute one’s full share to mutual help. This is unacceptable because the Church has exclusive jurisdiction over obligations of spouses. (See my article in Homiletic and Pastoral Review, No-Fault Divorce, Standing for Justice).
Additionally, Rota Judge Fr. Jaeger (as quoted by Dave’s tribunal judge) says a petitioner has no rights to a canonical separation investigation if a civil divorce has already been completed. Fr. Jaeger appears to be attempting to overturn centuries of Church canonical jurisprudence, though no revisions of the Code have authorized his overhaul. Dave, with the help of Mary’s Advocates, appealed to Dave’s diocese’ 3-judge panel, explaining why Fr. Jaeger is incorrect (see Dave’s appeal HERE). The 3-judge panel, called the college, can overturn the rejection given by the first diocesan judge. Dave is simply asking the Tribunal to attempt to facilitate reconciliation (per can. 1695); if reconciliation fails, he’s asking them to instruct his wife that she has abandoned the marriage — which is contrary to canon law (and morally wrong).
A U.S. diocesan 3-judge panel might be uncomfortable judging that a Roman Rota Judge is incorrect. The Roman Rota is supposed to provide decisions to which the rest of the world’s tribunals can look, so that the faithful worldwide have uniform jurisprudence. If Dave’s diocesan Tribunal doesn’t let Dave start a canon law trial judging whether his wife abandoned the marriage, Dave can appeal to the Tribunal of the Roman Rota. He can ask for Rota Judge Fr. Jaeger’s statements to be overruled by another panel of judges at the Roman Rota. Just because Fr. Jaeger is a Roman Rota judge does not mean that his decision is in conformity with the jurisprudence of the Roman Rota. Cardinal Burke has taught that Rota judges can be wrong (See 4 July 2019 article).
With Mary’s Advocates, since 2004, I have been publicizing my research findings on Church teaching and civil divorce. I’ve found that the Church has exclusive competence over cases of separation of spouses. When Catholics get a civil divorce, as far as the Church is concerned, they are still married, though separated. Many U.S. diocese’ websites publicize the possibility of a spouse petitioning a canon law court for a decree of invalidity of their marriage (a.k.a. annulment). However, most say nothing about the possibility of a spouse petitioning a canon law court for a decree of separation of spouses. If a spouse seeks an annulment, he must first allege who caused the marriage to be invalid and describe the facts, in a general way, supporting his assertion. If a spouse seeks a canonical separation, he must first allege who is causing the separation and describe the facts supporting his assertion. I’ve found plenty of authoritative sources saying that a spouse who wants reconciliation has a right to a case in which the other spouse is alleged to have abandoned the marriage.
Rota Judge Fr. Jaeger was appointed to the Roman Rota Tribunal in 2011 and had served as a Consultor to the Pontifical Council for the Interpretation of Legislative Texts (source). This Council is responsible for providing authoritative interpretations of canon law in coordination with the Pope. They must also involve the Congregation of the Faith and the Congregation of Discipline of the Sacraments, if the issues overlap with those Congregation’s responsibilities.
Cardinal Coccopalmerio was in charge of the Pontifical Council of Legislative Texts from 2007 to 2018. He made headlines in 2017 because one of his staffers (and his appointee to become a bishop) was arrested for hosting a drug fueled orgy. A year later, the news came out that Cardinal Coccopalmerio attended the drug fuel orgy too (source). Cardinal Coccopalmerio has made Mary’s Advocates work difficult because he wrote a private opinion on his Council’s letterhead that was contrary to all my research findings. He said there is no canon law requirement to have one’s bishop’s permission prior to petitioning in the civil forum for divorce. I’ve collected plenty of authoritative sources that say the opposite.
Currently, Fr. Jaeger’s superior at the Roman Rota is the Dean of the Roman Rota, Msgr. Vito Pinto. He is 79 years old even though the law states, “The Dean ceases his function with the completion of seventy five years of age” (Rota Norms Art. 3 §3). Mary’s Advocates, and One-Peter-Five have reported that Msg. Pinto is on the list of freemasons compiled by journalist Pecorelli, who was murdered in 1979.
Since the 2018 summer of shame and 2015 Amoris Leatitia, it has been made public that there are those in the Church who are trying to undermine teaching, long-standing practice, and law about sexual morality. It would not be shocking if a Roman Rota judge is part of the problem. The faithful cannot stand by and remain silent if they ever want these problems corrected.
Note: The excerpts from Rota Judge Fr. Jeager’s 2019 decree match those in a paper published by the Canon Law Society of America in February 2020. If a tribunal judgement violates the right of defense of a party, there is a peremptory deadline of ten years to appeal (cf. c. 1621). Some decisions from the Roman Rota are published by the Vatican ten years after they are issued in Rotae Romanae Tribunal, Decisiones seu Sententiae with the identity of parties kept secret.