Separation of Spouses Between the Law of Church and State

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Author, Avv. Giovanni Maragnoli was a judge in the canon law tribunal that covered a vast section of northern Italy (Tribunale Ecclesiastico Regionale Lombardo).  The Judicial Vicar of this same Tribunal is author of book “When is the Marriage Null.” Maragnoli answers the question; may a christifidelis, an Italian citizen, who has legally separated from their spouse according to the law of the State, be considered legitimately separated also in the eyes of the Church?

Much of his paper is relevant to USA residents who collaborate with Mary’s Advocates and ask the Church to intervene when the other spouse abandoned their marriage by using our template petition for marriage separation case: “Petition to Bishop to Facilitate Reconciliation or for Decree of Abandonment.”

Maragnoli shows how the relationship between State and Church law follows the principles relevant to all international law.  At one time, a concordat (treaty) existed in Italy wherein the Church gave the State jurisdiction to decide spouses’ obligations in cases of separation. But that treaty is no longer in effect and, instead, Italy has it’s own particular law about State courts.  He says, what we think is obvious: “it is unthinkable that a member of the faithful could obtain from his or her bishop the license to approach the civil judge in order to obtain a declaration of separation from a spouse, in circumstances when it is foreseen that the civil judge will base that decision on a norm contrary to divine law.”

The origina article  is in Italian, and we publish an English translation generated with A.I. that I edited.  For example, Maragnoli states the following:

(Maragnoli, page 169) It is a topic that, if one wishes to express it in simpler terms, could be framed by the following question: may a christifidelis, an Italian citizen, who has legally separated from their spouse according to the law of the State, be considered legitimately separated also in the eyes of the Church?

(p. 169) it is a problem that belongs to the sphere of international law.

(p. 171) For us” […] “it is a matter of determining whether and what provisions have been issued by the Catholic Church, for the purpose of establishing a link between its own legal system and the Italian rulings (judgments or other measures) concerning the personal separation of spouses.

(p. 172) [The Catholic Church] enjoys the original power to issue legal norms in matters that fall within the sphere of its interests: that is, in what is concisely and effectively referred to as the salus animarum (the salvation of souls), which is the supreme end of the canonical order. Among these matters is of course that of the regulation of marriage between the baptized, especially when they are Catholics, and within this, that of the personal separation of spouses, since there is no doubt that separation affects some of the principal and characteristic effects of the conjugal union. That is, the canonical legislator considers it his right and duty to concern himself, in the interest of the spiritual welfare of the faithful, with the reasons that may justify the loosening of the rights and obligations that arise from marriage.

(p. 176) The Church, for its part, continues to firmly affirm, on principle, its right to deal with the marriage of its faithful—not only in its generative moment (what canonists call matrimonium in fieri [in becoming]), but also during the unfolding of the marital relationship or matrimonium in facto esse [ongoing].

(p. 177) [I]t is time to briefly turn to an examination of those provisions.” […] “paragraphs 2 and 3 of canon 1692 carry a significance.

(p 177) The underlying principle remains the same as already repeatedly stated: namely, that the handling of cases of personal separation of spouses belongs, by proper right and within the limits of can. 1059, to the Church. However, the one who presides over the particular Church—the bishop—may, by his authority, grant to the spouses (or, evidently, even to only one of them) the license or permission to assert their claims in this matter not before the ecclesiastical tribunal, but rather before the organs of civil justice.

(178-179) Stated this way, it might appear that where the ecclesiastical sentence lacks these civil effects, the license to approach the State judiciary could be granted even when a civil sentence contrary to divine law is anticipated; but it is all too clear that this cannot be the case, for it is unthinkable that canon law could contradict its own foundational principles. Such a reading fails to take into account that the conjunction vel, which in the Latin text separates the two conditions, does not express a real opposition between two contrasted propositions, but rather tends to establish a form of coordination, though not of equivalence, between them.

For this reason, in our Italian translation, although we used the conjunction “o” (or), we deemed it necessary to add the adverb “comunque” (in any case), which has no literal counterpart in the Latin text. In this way, it seems sufficiently clear that the whole provision must—at least in our view—be read as a unified statement, as follows: the license to approach the civil forum may be granted provided that no civil sentence contrary to divine law is foreseen, and it will be granted more readily in cases where an ecclesiastical sentence, though aligned with what the civil judge might have decided, is not susceptible to acquiring civil effects under the law of the place.

(p. 181) [re, special legal arrangement issued on 5 November 1990 of the Italian Bishops Conference and approved by Apostolic See, Decree, Art. 55] Accordingly, based precisely on this norm, the civil judge is to be considered, according to Church law, as vested with jurisdictional competence to issue such rulings.

(p. 182) [re, international law example] But let us now suppose—developing our example further—that the Italian judge based his decision on a principle of law entirely foreign to those on which Swiss legislation is founded: that he, so to speak, sentenced the Swiss citizen to imprisonment until the delivery of the securities, as would have happened in the past when the institution of debtor’s prison was in force (we apologize both for the paradox and for the deliberate simplification). Could Switzerland ever agree to give executive force in its own legal system to a sentence based on such an archaic provision? Obviously and naturally, it could not.

Therefore, it is clear that the acceptance by one State of a judgment rendered by judges of another sovereign entity presupposes that those judges observed not only the procedural norms in force in the first State (the one issuing the sentence must have been competent to do so), but also certain (we strongly emphasize this adjective) substantive norms.

(p. 183) A sentence [issued by a foreign State government] will only be denied effect if it is seen as contradicting the fundamental principles on which Italian divorce law is based.

(p. 184) only those divorces [issued by a foreign State government] will be unable to acquire validity in Italy” […] “those divorces originating from a unilateral act of repudiation” […] “It is enough to recognize the undeniable affinity between the concept of public order in secular legal systems and what in canon law are called the principles of divine law

(p. 184), [U]nder the current can. 1692 §2, the possibility that diocesan authority may grant the faithful permission to approach the civil judge is conditioned on the expectation that “the civil sentence will not be contrary to divine law.”

(p. 185) Given the applicability of this criterion, in our view — as we have already stated earlier — it is unthinkable that a member of the faithful could obtain from his or her bishop the license to approach the civil judge in order to obtain a declaration of separation from a spouse, in circumstances when it is foreseen that the civil judge will base that decision on a norm contrary to divine law.

It would indeed be entirely incoherent to expect that such a sentence could then be received into the canonical legal system, that is, concretely, that such spouses could be considered separated also in the eyes of the Church.” […] “it remains the case that any civil ruling of separation based on a norm contrary to divine law must be regarded as entirely excluded from recognition within the canonical order, including within Italy, for the reasons outlined above.

What remains now is to try to determine which norms relating to the separation of spouses in canon law may be considered part of divine law. This is no simple task, since, as must immediately be observed, no catalogue of such norms exists.

(p. 186) Apart from the case of marital crisis caused by adultery which the innocent party has no intention of condoning, as referred to in canon 1152, it is canon 1153 of the current Code that enumerates the situations in which one spouse has the right to separate from the other.

(p. 187-188) we nonetheless believe that what we have proposed can serve as a sufficiently precise answer to the question we posed at the beginning of this study: that from the Church’s understanding of marriage, it can never be considered morally licit for a husband or wife to decide unilaterally to separate from their spouse in the absence of a specific violation of conjugal duties by the other, if, with the exercise of at least a certain degree of good will on both sides, the marital communion could instead have been preserved. This, in our view, constitutes the impassable limit beyond which not only could separation not be pronounced by an ecclesiastical tribunal, but it could not even be considered legitimate in the eyes of the Church—whether or not the ecclesiastical authority had granted the license to approach the civil forum, which we have discussed in the previous pages—for a married couple who has obtained a civil decree of separation.

(p. 188) The other principle, namely that, when the ecclesiastical authority has granted the spouses a license to turn to the civil judge, the separation decrees issued by that judge are to be considered valid and effective also in the canonical legal order—can be accepted as part of the Church’s legal system only with this [above] qualification.

(p. 188-189) Nevertheless, if everything that has been said so far is true,  it is undeniable that at times the Church will have to reckon with a situation in which two spouses, though legally separated under State law, are in a condition not legitimate according to the substantive norms of the canonical legal order—with all the consequences that may flow from this.