Mary’s Advocates asks Canon Law Critic to Talk
- Posted by Mary's Advocates
- On January 23, 2022
- 2 Comments
By Bai Macfarlane
With the non-profit organization Mary’s Advocates, I work to reduce unilateral no-fault divorce and support those who are unjustly abandoned. This open letter is to Magdalen Ross, JCL, the Director of Canonical Affairs for the Diocese of Dallas who earned her JCL in canon law from Pontifical University of Holy Cross.
Dear Ms. Ross,
On 15 January 2022, you posted a blog criticizing an unnamed website which claims canon law requires one to have his bishop’s permission prior to filing for civil divorce. The unnamed website is likely Mary’s Advocates, of which I am the director. Would you be pleased to talk (via blog) to me about your critique (note 1)? You quote canon law and offer much of your own commentary. I ask you to consider the commentary of reputable canonists and subject-matter experts that I’ve found.
Rather than addressing your entire post, I’ll focus simply on two points:
- I find that a bishop’s permission prior to divorce is required by canon law, and you say it is not (note 2);
- You say that abandoned spouses have no remedy in canon law to vindicate their rights, and I find that they do.
Bishop’s Permission Prior to Petitioning for Civil Divorce from State
Canon 1153 says, “Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them” and I see you are making an unfounded distinction between civil forum divorce and civil forum separation. You imply that because the word “divorce” is not in the Code, canon law has no norms applicable to civil forum divorce. Could you agree that in all civil divorces cases, the civil forum purports to relieve all plaintiffs of their obligation to maintain the common conjugal life regardless of whether, or not, there is a moral/doctrinal/canonical reason excusing them?
For example, it is not canonically allowed for a husband to separate from his wife just because he wants to “find himself” or he is simply unhappy. However, the civil forum will force a separation on the wife and children if the husband petitions the civil forum in any no-fault state after he asserts incompatibility, irretrievable breakdown, or irreconcilable differences. Sometimes, a state requires a specific number of months prior to them forcing a divorce or civil separation on the defendant. When the civil forum issues a civil separation decree or a civil divorce, the obligation to maintain the common conjugal life has been undermined by the civil forum at the request of the petitioning plaintiff. Furthermore, because of no-fault laws, the civil forum’s determinations about mutual help and obligations of the parties toward each other and their children are arguably contrary to divine law in every case. Children are scandalized and abandoners are treated the same as the party who wants to keep the family together.
According to your blog, there is no universal canon law requiring a party to have one’s bishop’s permission prior to filing for civil divorce. In the Code, the role of a bishop relating to approaching the civil forum is in canon 1692, and it says a bishop “can” grant permission to approach the civil forum. The law gives the default position that spouses live together and mentions a bishop’s option to grant permission to approach the civil forum if one is going to live without one’s spouse. You appear confident that because the canon says the bishop can grant permission, then any spouse is free to approach the civil forum on his own authority (so long as there is no concordat) (note 3). You wrote “the bishop ‘can’ decree the canonical separation of the spouses, not ‘must.’ It is optional — and indeed a party is to go to the civil forum from the start if a civil separation is being sought in countries where ecclesiastical decisions have no civil effects, like in the US” (emphasis in your original). It is optional for the bishop, but I disagree with your claim that it is optional for the parties.
Have you considered that the bishop’s option to grant permission to approach the civil forum could be like the bishop’s option to allow a mixed marriage? The default is that a baptized Catholic cannot validly marry a non-Catholic person and the bishop can grant an exception (c. 1124-1127). If I used your logic, I could declare that because a bishop can give permission for a mixed marriage (not must), then the bishop’s permission is optional; therefore I would assert that any Catholic marrying a non-Catholic is free to have a full Catholic marriage rite without the local ordinary’s permission. This is mistaken.
You discussed article 126 of the Third Plenary Council of Baltimore and criticized those like me. We claim, among other things, that article 126 means one must have the bishop’s permission prior to approaching the civil forum for civil divorce. About my conclusion, you specifically wrote, “Clearly, this is incorrect and a complete misreading of the original provision of Article 126, which is now in legal desuetude anyway.”
Would you consider the following authors incorrect?
Section Title, “Civil Divorce.” On the third of April, 1877, the Holy Office thus replied: … to the second question May a Catholic bring suit or plead for divorce when the end to be obtained is only simple separation and the decision of the court will not imply the nullity of the marriage? The answer was: Reply already given and also in decision of Dec. 19, of the same year, 1860: (1) If there be no other court from which the Catholic party can procure a separation a mensa et thoro; (2) if the decision of the court have no further effect than this separation; and (3) if in the judgment of the ordinary there be grounds sufficient for a separation, it can be tolerated for Catholics to institute suit for or plead for divorce in such court .
1920 Diocese of Cincinnati. Eighth diocese in USA. Link. Canon 75 of the 4th Archdiocesan Synod:
De Poenitentia. A) Casus Reservati. Canon 75. I. Casus Ordinario reservati hoc iure Nostro diocesano sunt: … 2. Coniugum, qui tribunalia civilia, causa a tribunali ecclesiastica non diiudicata, adeant ad divortium seu separationem a toro et mensa obtinendum, quamvis effectus civiles solos intendant. [English: Reserved sin by reason of itself. The couple, with their cause not having been judged by an ecclesiastical tribunal, who enter a civil tribunal, to obtain a divorce or separation from bed and board, however much intending only the civil effects.
1944. Msg. George Casey, Vicar General of the Archdiocese of Chicago. Link.
Logically we must determine what the client may do licitly in regard to seeking a civil divorce or separation. A person may licitly seek a civil divorce in the following circumstances: 1) If the marriage has already been declared null and void by the Church, for in such a case the person is clearly seeking nothing else than the dissolution of the civil effects of an invalid contract. 2) When the bishop decides that there is sufficient reason for permanent or indefinite separation in a valid marriage, and permits the seeking of a civil divorce for the protection of the civil rights of the party.
1946. Imprimatur of the Bishop of Albany to Rev. Bernard. Link.
Moreover, we have in this country particular legislation on this point that is not explicitly mentioned in the Code: the decree of the Third Plenary Council of Baltimore is still binding on us. It reads: ‘We command all (i.e. baptized) married persons that they must not go to the civil courts to obtain a separation from bed and board without previously receiving permission from the ecclesiastical authority. Should anyone attempt this, let him know that he incurs the guilt of grave sin and that he is to be punished as the Bishop shall decide.’ [111 Cone. Plen. Balt., n, 126 (link see TlTULUS IV on 62, find n. 126) … And what has been said of civil separations applies with all the more force to the greater evil of civil divorce.
1948. Imprimatur of Bishop of Saginaw to Doctoral Dissertation of Rev. Eugene Forbes. Link.
In [English-speaking] countries, a Catholic could petition the civil courts for a divorce under the following conditions, all of which must be verified in a particular case: 1) In every instance the permission of the local Ordinary is necessary in order that a Catholic seek a civil divorce. (page 218)
1947-1950. Professor of canon law at Pontificia Universitate Gregoriana, Rev. Felix M. Capello’s Tractatus Canonico-Moralis de Sacramentis. Link.
Cum causai matrimoniales ad Ecclesiam pertineant, non licet coniugibus petere divortium civile, nisi antea ob causam canonicam licentiam se separandi obtinuerint [(English translation) Since matrimonial cases pertain to the Church, it is not permissible for spouses to seek a civil divorce, unless they have obtained a canonical license of separation first.]
1952. Imprimatur Bishop of Brooklyn to Rev. James King, Doctoral Dissertation, Link.
Although there is no penalty in the Code or in the particular conciliar law for this country against those who seek a civil divorce, nevertheless the same decree of the Council of Baltimore calls attention to the grave sin involved in seeking such action. Therefore, the permission of the local ordinary is necessary requisite for a licit action in every instance. It is his office to judge the gravity of the reasons for seeking this legal remedy, and it is but reasonable, as a means of preventing the abuses arising from private judgment in this matter, that he, the guardian of faith and morals in his territory, thoroughly familiar with the local civil statutes, should be the authority to issue this permission in worthy cases. (page 155)
1957. Imprimatur Archbishop of St. Louis to Rev. Donald Miller. Link.
The innocent person may not apply for a civil divorce except under certain very definite conditions: …That there be a grave reason for seeking a civil divorce over and above the separation that the Church has granted….That permission to institute divorce proceedings be granted by the bishop or his representative.
1963. Imprimatur of Archbishop of Detroit to Catholic Lawyer’s Guide. Link.
A lawyer who takes the case of a Catholic desiring a civil separation or a civil divorce from a valid marriage, when the Catholic does not have ecclesiastical permission for such action is putting himself in a state of sin. It would seem that any good Catholic lawyer would be happy to let the Church make such a difficult decision and not assume to himself something which he is definitely forbidden in conscience to do.
2004. University of Navarra, Code of Canon Law Annotated. Link.
Since divorce laws have proliferated in many countries, the need to request the diocesan bishop’s authorization is a necessary precaution, which prevents the fostering of trials whose judgments violate precepts of divine law, to the detriment of the spouses and with the risk of scandal to others (on canon 1692).
Canon Law’s Applicability when Other Spouse Leaves for Trivial Reasons
You also said that when a spouse unlawfully leaves the common life, “there is no formal remedy in canon law.” Moreover, you said “If a spouse does not live up to the obligation to maintain common life because he or she simply wishes to leave, even for trivial reasons, there is nothing that canon law can do. In such cases, a spouse who wishes to remain faithful to his or her commitment to marriage is in a difficult situation, but not one that can be fixed by canon law.”
What do you mean by fixing a situation? Do you mean guaranteeing the restoration of the intact marital home for the other spouse and children? Mary’s Advocates is not telling anyone that the canonical forum can guarantee restoration of an intact home. How do you reconcile your assertion with my collection of jurisprudence and canon law commentary on malicious abandonment? For a spouse who wishes to remain faithful to her commitment to marriage in the aforementioned difficult situation, a canonical judgment from one’s bishop–or tribunal finding the other spouse to be a malicious abandoner–is something that canon law can do. The canon law judgment defines the status of spouses, which consequently prevents scandal, protects the good name of the abandoned spouse, and can also have the medicinal effect of inducing a sinner to repent or make reparation for the violation of public order.
See a sampling of my collection of canon law commentary and jurisprudence on malicious abandonment (a.k.a. desertion).
Desertion has been adjudged by the S.R. Rota as a cause sufficiently grave to authorize separation for an indefinite period of time (page 635). Malicious desertion is given by authors as a just cause for separation (p. 659).
1947. Imprimatur of Bishop of Baltimore-Washington to dissertation of Fr. Marion Gibbons. Link.
[T]he Sacred Roman Rota has recognized among others the following as justifying causes for a temporary separation […] malicious desertion, done without justification but at the same time with the intention of not returning. (page 64)
1948. Imprimatur of Bishop of Saginaw to Rev. Eugene Forbes. Link.
Malicious desertion is a ground for temporary separation. (page 150)
1964. Imprimatur of Bishop of Romae, e Vicariatu Urbis to dissertation of Rev. Thomas Gumbleton, published by Pontifica Universitas Lateranensi. Link.
Causes for temporary separation […]: malicious desertion… (page 128)
1974. Sentence of the Roman Rota (Coram Ferraro, December 17, 1974: SRR Dec66: 799-807. no. 15). Link.
“Quod vero de desertione? Ut ius divertendi ex desertione legitime profluat, constet omnio necesse est eandem malitiosam fuisse. Ad id vero evincendum, ut e nostra iuris prudentia eruitur, «requiruntur tria haec: 1) Discessus ab altero coniuge, vel eius dimissio; 2) Animus deiiciendi obligationes coniugales; 3) Defectus iustae causae» (S.R. Rotae Decisiones, 21 [1929], p. 526, n. 4, coram Morano).” [(English) What is true regarding desertion? … 1) The abandonment of the other spouse or the removal of the same; 2)The intention to shed the conjugal obligations; 3)The absence of just cause.]
1985. Dissertation titled “Malicious Abandonment, Study of Jurisprudence” [Spanish original El Abandono Malicioso Estudio jurispurdencial]
By Ana Fernández-Coronado González, as of 2017, now Professor of Ecclesiastical Law at Universidad Complutense Madrid. Link.
For malicious abandonment to be a ground for a decree of separation of spouses, “[a] few criteria to be considered here. Malicious abandonment must be unilateral. This assuming the action was taken without knowledge nor agreement of the other spouse. It must also be illicitly objective and subjective. This meaning not only the lack of justified cause regarding one’s conduct, but also the clear knowledge of the lack of it by the person executing such action. Intention to dissolve the marital life must exist in the one displaying such action. […] Judicial stipulation of malicious abandonment in the canonical jurisprudence is a unanimous consideration of autonomous causes for conjugal separation” (page 291 items V, VI).
2004. University of Navarra. Exegetical Commentary on Canon Law. Link.
With a decree of separation on the ground of malicious abandonment, there is an intent to declare guilty the spouse who has maliciously been absent and to obtain the legal declaration of separation for the one who has been abandoned (on canon 1153).
2008, Roman Rota Lawyer, Rev. Msgr. Piero Amenta, Professor at the Pontifical Gregorian University. Original Italian published by Libreria Editrice Vaticana . Link.
Canon 1151 states that the motivations which excuse spouses from the obligation of living together must be legitimate. This qualification is to be understood as being provided for by the law or decided by the competent ecclesiastical authority. It is not, in fact, possible to find a list of legitimate reasons in the substantive norms. They can, nevertheless, be discovered through an exegesis of the norms contained in canons 1152 to 1155, and through the nature of the conjugal obligations themselves as we have just related. We repeat them here, brevitatis causa: with regard to the obligation of reciprocal faithfulness, the primary reason for separation is adultery; … with regard to the obligation of cohabitation, the fraudulent abandonment of the spouse can be a sufficient reason. Of the reasons listed, not all of them are in the Code. Some are derived from the jurisprudence of the Roman Curia, particularly from the jurisprudence of the Roman Rota.
All the above authors describe an action in canon law available to a spouse after the other has separated for trivial or unjust reasons. Given their writings, can you still assert that there is nothing canon law can do in these situations?
Best Regards,
Bai Macfarlane
Director, Founder, Mary’s Advocates
Notes:
1) The blog is unsigned, so if you are not the author, would you please introduce me to the author so I can ask him/her if we can have a discussion.
2) I recognize that his administrative authority could be delegated to another person by the bishop’s mandate.
3) A concordat is a treaty between the Church and state wherein they agree about which forum will decide cases. I’ve seen situations in which both agree that the civil forum will decide cases, or both agree that the Church forum will decide cases.
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