Diocese of San Bernardino: Fox is Guarding Henhouse

Church lets divorce lawyers determine if the civil forum is contrary to divine law.

In San Bernardino, California, a Roman Catholic woman is appealing to Rome against a decree from her Bishop’s canon lawyer, The Very Rev. David Andel, J.C.L..  The diocese rejected her petition for the Church to do that which is basically described in the Gospel of Mathew. She says her husband abandoned her. For Christians, if your brother refuses to stop sinning against you, even after bringing witnesses, you are to tell the Church. “If he refuses to listen even to the church, then treat him as you would a Gentile or a tax collector” (Mat.18:15-17).

Rev. David Andel, JCL

Bishop Gerald Barnes

Rev. Andel gave no clue that he reminded the husband of his obligation to maintain an intact home. Instead, he asked two divorce lawyers whether the proceedings in the civil forum would be in accord with divine law.  Working in his authority to issue a decree on behalf of Bishop Gerald Barnes, Rev. Andel’s wrote, “WHEREAS on February 6, 2018, consultation took place with two Catholic civil attorneys expert in family law practice, Mr. Marty Swanson , J.D. and Mrs. Mary Swanson, J.D., both of whom attest that a civil sentence of legal separation is not contrary to divine law, as required in canon 1692, §2” (Feb. 13, 2018).

This is inexplicable and there are two possibilities: 

• Either, the divorce lawyers are ignorant about Catholic doctrine, natural law, divine law, and canon law;  or
• The Bishop’s canon lawyer is ignorant about California divorce and civil separation practices.

Saying that “civil separation is not contrary to divine law” is just as misleading as saying “killing is not immoral.” In the USA, because of no-fault divorce and no-fault separation, many, if not most, civil sentences are immoral, unjust, and contrary to divine law.

Cardinal Robert Sarah

In her appeal, the woman wrote, “The idiom applies, ‘The fox is guarding the henhouse’ because divorce lawyers have a conflict of interest.”

The woman is keeping her identity confidential and we’ll call her Anita. After 20 years of marriage, she says her husband abandoned her and filed for civil separation; her first civil lawyer told her there was nothing she could do to stop a civil court decree from being issued. California is a no-fault divorce state, and any petitioner can force a divorce on the other party. The grounds for both divorce and civil separation are the same “Irreconcilable differences, which have caused the irremediable breakdown of the marriage” (Cal. Fam. Code § 2310).

In her appeal to Rome, Anita made recourse to Cardinal Robert Sarah, prefect of the Congregation of Divine Worship and the Discipline of the Sacraments, and described the injustice in the civil forum:

Once one party files in the civil forum for separation or divorce, the coercion begins. Unless the Defendant agrees with the Plaintiff on a plan to split everything, lawyers file back-and-forth pleadings and the court schedules pre-trial appearances, conferences, depositions, and mediation, at $375/hour or more for each attorney. In Anita’s original petition to her Bishop, she described lawyers:

Anita asked the diocese to implement the canon 1695 that requires the ecclesiastic authority to use pastoral means to reconcile the spouses and persuade them to restore conjugal living, whenever there is the hope of a favorable outcome.  Fr. Andel seemed to have never tried to persuade her husband of anything. In her appeal to the Roman Curia, Anita said, “I describe my concern about the apparent permission to approach the civil forum that Rev. Andel granted to my husband. He gives no legitimate juridical grounds for separation of spouses nor proven facts supporting his decision giving permission to my husband to approach the civil forum. Furthermore, my right of defense was violated because I was given no chance to be heard about accusations made against me” (par. 11).

From an authentic Catholic perspective, every time someone files for civil divorce or separation, at least one party is reneging on the marriage promises. When Catholics marry, they agree to stay together in good times and bad. According to the Catechism and the Catholic Code of Canon Law, Anita’s husband was only supposed to separate from her if she had done something gravely dangerous, committed adultery, or made it impossible for him to practice his Catholic faith.   An internationally respected canon law resource shows the three aspects of a perpetrator’s offenses that would justify separation by the other spouse:

• “it must be grave, such that it makes common life dangerous for the spouse or children;
• “it must be repeated, because if it were merely occasional, it would not create the fear for future common life, which justifies the separation;
• “and separation must constitute the only means of avoiding the danger involved in common life.” (Source)

In her petition, Anita showed how she “believes parties’ marriage can be reconciled and hopes the Respondent-spouse will be encouraged by His Excellency, Gerald Barnes, Bishop of the Diocese of San Bernardino, to return peacefully to the conjugal life.”  She was very disappointed when the Bishop’s canon lawyer tacitly condoned her husband’s abandonment, and trusted divorce lawyers to judge whether civil proceedings are in accord with divine law.

Read records from the case

• 1st rejection by Rev. Andel, canonist for Bishop Barnes of San Bernardino (Jan. 19, 2018) HERE
• Anita asked Rev. Andel to change his mind (Jan. 26, 2018) HERE
• 2nd rejection by Rev. Andel (Feb. 13, 2018) HERE
• Anita’s appeal to Rome, Congregation of Divine Worship and Discipline of the Sacraments (25 Feb. 2018) HERE
• Excerpts from California Law Family Code Enclosed with appeal (25 Feb. 2018) HERE

Mary’s Advocates offers a canon law petition in which any abandoned spouse can ask the Bishop to intervene to try to stop a breakup. See HERE.