Principle vs. Practice. Divorce OK per Catholic Diocese
- Posted by Mary's Advocates
- On July 23, 2021
by Bai Macfarlane
In my work upholding marriage, I show abandoned spouse how to ask the Church to intervene when the other spouse sends the whole family to the no-fault divorce courts. A few months ago, a husband contacted me who was surprised to find that his wife had left the marital home with their children (ranging in age from teenager to toddler). Her side of the family is providing she and the children a totally separate home without her husband.
The husband (who we’ll call Brian) petitioned the diocese asking first, for help in reconciling, and if that failed, secondarily, a judgment in the canon law forum that his wife is a malicious abandoner. In other words, he’s asking for his wife to be reminded by the Church of its teachings which are emphasized when couples prepare for marriage in the the first place. Rather than getting any help, the diocese issued a decree instructing his wife that she can go to the civil court to figure out the details of a separation.
For Catholics, the Catechism teaches that divorce is immoral and a grave offense against nature and only tolerable in certain situations delimited by canon law. Brian knows that the Church, in principle, is against divorce, but he is devastated at the appearance that, in practice, the Church is pro-divorce.
Brian is still asking the diocese to conduct a proper canonical trial. In a proper Catholic Tribunal trial, each spouse gets to see any complaint made against him/her and has a chance to defend himself/herself. With my help, Brian asked the bishop to revoke the decree instructing his wife to go to the government family courts, and he made recourse to Congregation in Rome. See pleading to Bishop and Congregation with identifying information removed. Brian wrote his Bishop the following:
The civil forum is not competent to determine whether facts are proven that establish a canonically licit basis for separation, nor determine whether a separation is the kind that should be permanent according to canon law, or temporary. Every civil forum Plaintiff can force a permanent separation on the other spouse and children, force liquidation of assets, and transfer tens of thousands of dollars of marital assets to civil forum lawyers and court-ordered personnel. When a Catholic wife finds herself in a martial situation about which she is displeased, she should cooperate with experts who have experience successfully helping couples resolve their difficulty and grow in virtue, not seek permanent separation (or divorce). However, the civil forum never instructs parties of their obligation to work toward reconciling their marriage. Even though your decree encourages parties to seek assistance to reconcile their differences, the civil forum coerces the minimization of only certain kinds of differences: differences regarding how to split children, property, and support. …
Your assertion that decisions of ecclesiastic courts and the Ordinary have no effect in the civil forum is an unproven assumption. We live in a constitutional republic which forbids states from making laws impairing obligations of parties in a contract. Parties who marry in a Catholic Rite accept obligations and rights as described in our Code of Canon Law, Catholic Doctrine and Tradition. Furthermore, religious liberties are protected, and parties are not forced by the state to explicitly renounce their Catholic understanding of marriage obligations and rights when they marry.
In Brian’s recourse to the Congregation of the Discipline of the Sacraments, he asked the Congregation to rule that the Bishop’s decree is invalid, in which the bishop instructed his wife to go to the civil forum. Additionally, he asked the Congregation to quickly suspend the Bishop’s decree because there is danger in delay. He explained, “The civil forum routinely orders the payment of civil attorneys by forcing the sale of the marital home (if there is any equity in the home). The civil forum is ordering children to undergo counseling and investigation by divorce-court professionals who feel distaste for the obligations of Catholic marriage.”
Brian’s challenge is that he was never given the chance to defend himself against any complaints his wife made against him supposedly justifying her separation from him. Even if Brian was behaving so terribly that his wife had a legitimate reason for separation of spouses—if she is a conscientious Catholic—she would be doing everything in her power to find Brian the right kind of help. But when a wife refuses to cooperate with those experts who have a high success rate of helping couples strengthen their marriage, the wife looks disingenuous. A wife should not be able to have it both ways; she can’t say she has a terrible marriage because her husband makes life together impossible, and simultaneously refuse to cooperate with experts who could help her she and her husband have a less tumultuous marriage.
In the no-fault divorce courts, the government judge cares nothing about a Catholic wife’s obligations to maintain a common marital home. Everyone who wants a no-fault divorce or separation will get it. In some states, after being separated for six or twelve months, a government court will force a no-fault divorce/separation on a husband and children. In other states, a wife only needs to say “Our marriage is irretrievably broken” or “we have irreconcilable differences.”
Brian is praying that his diocese will still intervene and conduct a proper canonical trial. According to natural law and divine law, spouses are obligated to maintain an intact home with each other and their children.
Only a grave cause justifies temporary separation. Only adultery justifies permanent separation. For those who actually have an invalid marriage, the cause of invalidity is relevant to the parties’ obligations towards each other and their children (to be judged by the canonical forum). In the case of emergency in delay, one can separate on one’s own authority. If a husband has not committed adultery, no wife has a right to permanent separation of spouses. The appeals Tribunal of the Roman Rota shows that abandonment occurs under three conditions; there is malicious abandonment in the following cases: 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. One is not supposed to go to the government family courts without a canonical process first which concludes that there is moral basis for separation and one obtains the bishop’s permission for government separation/divorce.
Brian hopes the competent church authorities will inform his wife that she is obligated to work on reconciling rather than sending their family to the no-fault divorce court’s chopping block. Spouses, like Brian, who want to keep their family together must have their right of defense upheld in the Catholic canon law forum. But as long as a bishop gives every woman who complains about her husband the go-ahead to file in the civil forum (while denying a husband the right of defense) the church is only against divorce in principle, but not in practice.