What Do We Ask

To: the Pontifical Council for the Interpretation of Legislative Texts

Is the policy of the local church – that is to summarily disregard the canon laws about the separation of spouses (1151-1155, 1692-1696) – contrary to the universal law of the church?

Are those who abandon marriage and force divorce deserving of sanctions: medicinal and expiatory penalties, warnings and rebukes, and/or denial of communion?

We ask the Pontifical Council for the Interpretation of Legislative Texts to issue a pronouncement answering our question.

We find the local church has a policy to make virtually no mention of the canon laws for separation of spouses (1151-1155, 1692-1696). The faithful are commonly taught that the church has no objection to divorce, only remarriage without annulment.

We are taught that the local church shall have no involvement if a spouse forces divorce on one’s children and reliable spouse who do not want a divorce. If reliable spouses ask the church to correct, warn, or rebuke our abandoning spouses (c. 49, 1319, 1339) we typically get no help.

When we plea for intervention because our spouses have hired divorce attorneys to abduct our children, which is an offense against human life and freedom (c. 1397), we are told that splitting children between two parents is merely a civil matter, about which the church has no teaching. When our children are forced to live with, or spend overnight visits with an abandoning parent’s adulterous partner, the local church is silent.

When we have family property forcibly taken by our abandoning spouses, empowered by civil court, the church looks the other way and we are instructed to return with an annulment petition. When the church is silent as our spouses force us to pay support for a second home where our children live separated from us, observers conclude that the Church sees no moral offense and no injustice against social order. We are taught that the local church has no interest because this is merely a civil matter.

The Catechism states that divorce is plague on society, is immoral and a grave offense against nature, and is only allowable in certain circumstance citing canon law. The Pontifical Council for the Family warns that divorce makes children orphans of living parents. Pope Leo XIII, in his encyclical Arcanum teaches that the matrimonial contract cannot be severed from the sacrament, with intent to hand over the contract to the power and will of the rulers of the State.

Observations by those who study divorce, lead us to conclude that forcing no-fault divorce on one’s family is a manifest grave sin, endangering the offender’s soul, violating divine law, causing scandal, gravely wounding the reliable spouse and children (c 1399), and harming the common good (attached Baskerville). Our pastors and bishops do not aid with penal remedies, warnings, rebukes, precepts, medicinal penalties, censures, expiatory penalties or denial of communion (c 915).

It appears that following canon 1692, and seeking the local ordinary’s permission before approaching the civil divorce court, would save marriages and prevent immoral separation and scandal. Enacting sanctions upon those who force family separations that are contrary to divine law would both prevent scandal and uphold the dignity of children and reliable spouses, by defending their right to an intact home with two parents supporting one household.

Is the policy of the local church – that is to summarily disregard the canon laws about the separation of spouses (1151-1155, 1692-1696) – contrary to the universal law of the church?

Are those who abandon marriage and force divorce deserving of sanctions: medicinal and expiatory penalties, warnings and rebukes, and/or denial of communion?

Why We Can Ask

Lay faithful who are interested can ask the Pontifical Council for the Interpretation of Legislative Texts to determine whether particular (meaning local) law, policy and practice is in conformity with universal law. Custom can become local laws (c 26) They can seek a pronouncement concerning the conformity of a particular norm to the universal laws of the Church, pursuant to art. 158 of the Ap. Const.Pastor Bonus.

• Pontifical Council for the Interpretation of Legislative Texts
• Art. 154 – The function of the Pontifical Council for the Interpretation of Legislative Texts consists mainly in interpreting the laws of the Church.
• Art. 155 – With regard to the universal laws of the Church, the Council is competent to publish authentic interpretations confirmed by pontifical authority, after consulting the dicasteries concerned in questions of major importance.
• Art. 158 – At the request of those interested, this Council determines whether particular laws and general decrees issued by legislators below the level of the supreme authority are in agreement or not with the universal laws of the Church

Who is Asking: Testimonies

Faithful spouses whose families are devastated by family break-ups bring our question to the Vatican. Some testimonies of our experiences with the local church are attached (identifying information omitted in public statements below). To illustrate the no-fault divorce process, we included Stephen Baskerville’s work “Divorced from Reality.”

If the Church would exercise the canonical investigation process for Separation of Spouses, canonical remedies (see endnote below), and medicinal penalties, we believe it could safeguard justice, prevent scandal, and serve the common good.

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Priest Assisted Abduction

HUSBAND – My depressed wife spoke to [name omitted] our pastor about our marriage and was sent to a diocesan divorce program that taught her how to divorce without looking back. Her parents, who are active in their parish, helped her take our two-year old son from me with no-fault divorce. Fr. [name omitted] told me that he had no objection to divorce because our marriage was no longer “life-giving.” He never mentioned anything about canon law requiring my wife to obtain a church decree before going to civil court. He even wrote a letter calling me “manipulative” because I wanted to repair our marriage. Our son now has Tourette’s Syndrome that was stress induced. I have since been diagnosed with MS, exacerbated by stress. I have not been able to find any priest to tell my wife or her parents that she should repair my son’s broken home or that there is anything wrong with divorce.

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Church Silent when Catholic Music Director Abandons Wife

WIFE – My husband abandoned our marriage and child thirteen years ago and has been allowed to keep his Catholic Church position as Organist/Music Director. He left the home after the cantor was hired whom I blame for our marital breakup. The Pastor never encouraged our reconciliation, yet these two have been dating all these years. They enjoy good reputations in the parish and Diocese because of their talents. I wrote the Bishop which has added to the pain and confusion as he wrote back to say that since the Pastor has no proof of inappropriate behavior, they may keep their jobs. Yet the Episcopal Vicar spoke with the Pastor and told me he aware that they date. Dating while divorced is being ignored by the Church.

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Priest Plants Seed of Annulment Idea so Wife Abandons Marriage

HUSBAND – We have four young daughters and my wife divorced me in 2008. She had met with Fr. [name omitted], pastor of [name omitted] Parish. Prior to even speaking with me, he told her that people in her situation have obtained annulments. Instead of speaking to her of the pain and damage to our children that divorce would bring, and of the grave sinfulness of such a decision, his mention of annulment served as a catalyst for my wife to abandon our marriage. When [Father] learned that my wife was involved with another married man, I asked him to explain to my wife the Catholic teaching on marriage. Instead, our pastor told me I needed to accept that I was going to be divorced. He spoke of psychology and five stages of grief, intimating our marriage was dead, rather than of reconciliation, hope, and asking God for the grace of the Sacrament of Matrimony. I am unaware of any attempts to urge my wife to reconcile or speak of her obligation to obtain the bishop’s permission before divorcing. My wife professes to be a devout Catholic, wears a chapel veil to Mass, and continues to receive Communion as if she has done no wrong.

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Devout Catholic Wife Loots Home

HUSBAND – While I was providing for my family, my devout wife and her father abducted our 3-month old child and looted my house. I loved my wife, was not abusive and did not commit adultery. My wife justifies her actions on the basis that our marriage was invalid. The priest who married us one year earlier, Fr. [name omitted] archdiocese [name omitted], had sat on the annulment tribunal. He provided her with the grounds of annulment. She refused marital counseling and has devastated me emotionally, spiritually and financially. The money she took as spousal support she plans to use to complete her Masters Degree in Catholic Theology at [name omitted] College so she can teach religion. She remains a respected member of the parish where we married and sits in the front pew and goes to Communion.

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Pious Catholic Husband Makes Stay-at-home-mom Pay

WIFE – My husband publicly appears as a pious Catholic. When our children ranged in age from two to eleven, he left me and used the civil courts to take our children from me, their stay-at-home mom. I go further in debt every month to pay him court-ordered child support. After my husband moved our children to another parish, I asked his pastor to help by teaching my husband what the Catechism and Canon law teach about divorce. The priest told me he would never expect anyone to follow the Catechism and Canon law because they were written by people who work behind desks that are out of touch with reality. Further, he told me I needed to make sure that I get my healing from the ministry of the church: my annulment.

[end note] Remedies

Promoter of Justice Supreme Tribunal of the Apostolic Signatura

Page 248-249

[I]n the absence of a clear framing of illegal actions within the well-defined figure of a delict provided for in canon law, it will often be prudent for the competent authority first to give a pertinent penal precept with a threat of a penalty in case of disobedience (c. 1319) [Footnote 7].  It seems that in the latter event the Ordinary could then proceed fairly easily with an administrative penal process, at least when he does not intend to impose a perpetual penalty or another penalty that cannot be imposed by decree (c. 1342. §2).

Footnote 7. Cf. also c. 1371, 2: “A person is to be punished with a just penalty… who otherwise does not obey a legitimate precept or prohibition of the Apostolic See, Ordinary or Superior, and persists in disobedience after a warning.”

Bibliography
Daneels, Frans, O. Praem (Promoter of Justice Supreme Tribunal of the Apostolic Signatura, Rome Italy). “The Administrative Imposition of Penalties and the Judicial Review of Their Legitimacy.” Dugan 245-255
Dugan, Patricia M. The Penal Process and the Protection of Rights in Canon Law, Proceedings, Gratianus Series. Montreal: Wilson & Lafleur Ltee, 2005. ISBN 2-89127-664-7

Secretary of the Supreme Tribunal of the Apostolic Signatura

Page 153-154

II The Notion of Offense

In the 1917 Code we find the following definitions of an offense, provided by the legislator himself in canon 2195, § 1: “Nomine delicti iure eccclesiastico, intelligitur externa et moraliter imputabilis legis violatio cui addita sit sanctio cananica saltem indeterminata.”[5]

This is clearly a valid notion in canonical penal law. It is one that come from positive law, as various element make clear. First of all, there has to be an external violation, because other kinds of violation (such as those that take place entirely within the “interior” world or that do not have any significant impact on the physical world and therefore on human relationships) are not taken into consideration by the penal law of the Church. Furthermore, there has to be a pre-existing penal provision in the form of the specification of a penal sanction saltem indeterminata (“at least indeterminate”).

But the most fundamental elements go beyond law and legislation. In fact, these are necessarily related to element that lead us into the realm of moral doctrine. There has to be a violation that is “morally imputable.” Moral theology calls a grave violation of the law a “sin,” appealing to the conscience of the person in his or her deepest relationship with God Himself. In fact the legislator requires, for there to be an offense, that there should be a gravely imputable violation of a law. In theological terminology this means that there has to be a mortal sin.

From this it follows that there is a distinction – although there cannot be a separation – between an offense and a sin. There is a distinction, because the concepts of sin and offense do not exactly coincide with one another; but not a separation, because underlying the notion of offense there is always a grave moral fact. The new Code does not offer a definition of offense, but for practical purposes it presupposes the same doctrine as previously, albeit with a certain nuance, which it is worth drawing attention to.

Even though the notions of offenses and penalty found in the 1917 Code are not defined in that 1983, this is not because of any desire for innovation in this area, but simply because, as a matter of methodology, the legislator has followed the principle that it is not for the legislator to give definition (that is the role of doctrine), and a principle of Roman law: periculosum est in iure definire. [6] As a matter of fact, commentators commonly accept that the notions of offense and penalty are the same as in the previous Code. However a certain novelty is worth mentioning, even though it does not have an innovative effect on the legal system overall. While the notion of offense remains the same, it is also true that ignorance of penal sanction is merely a reason for mitigating the penalty. In fact the general principle that states that an offender is liable to be punished does not actually refer to any penal sanction, but simply says that in the Church no on can be punished, “nisi externa legis vel praicepti violatio, ab eo commissa, sit graviter imputabilis ex dolo vel es culpa.”[7] Nor shuld it be forgetten that canon 1330 further provides that “delictum quod in declaratione consisitat vel in alia voluntatis vel doctirneae vel scientia manifestatione, tamquam non consummatum censendum est, si nemo eam declarationem vel manifestationem percipiat.”[8] Thus the fact that there is an external physical aspect is no longer sufficient in itself; that has to be accompanied by a lest a minimum of public awareness of the offense having been committed.

5. “An offense in ecclesiastical law means an external and morally imputable violation of a law to which a canonical sanction, at least indeterminate, is added.”
6. “In law it is dangerous to define.”
7. “Unless the commission of an external violation of a law or precept… is gravely imputable by reason of malice or culpability”: cf. c. 1312.
8. “An offense which consists in a declaration or in some other manifestation of will or of doctrine or of knowledge, is not to be regarded as effected if no one actually perceives that declaration or manifestation.”

Bibliography
DePaolis C.S., Velasio (Secretary of the Supreme Tribunal of the Apostolic Signatura). “Penal Sanctions, Penal Remedies and Penances in Canon Law” Dugan 145-182
Dugan, Patricia M. The Penal Process and the Protection of Rights in Canon Law, Proceedings, Gratianus Series. Montreal: Wilson & Lafleur Ltee, 2005. ISBN 2-89127-664-7