Separation Reserved to Bishop, not Pastor, Counselor

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Prof. Javier Hervada, Dean of the Faculty of Canon Law at the University of Navarra and professor at Holy Cross in Rome, contributed a section to the American book Canons and Commentaries on Marriage (yr. 1987). Archbishop of Arlington, The Most Rev. John R. Keating, who earned his JCD at the Gregorian, wrote the forward to the Commentaries. The book teaches that  separation of spouses is not a private matter.

Excerpt

(page 146) (1) The authorization to separate is an act of jurisdiction reserved to the diocesan bishop, and those acting in his name, to be granted in accordance with the law. Neither pastors, nor priests, nor those employed by diocesan agencies as marriage counselors or in other such capacities may authorize the separation of the spouses, not even temporarily, under the guise of pastoral or professional counseling.

(2) While acknowledging the force of particular ecclesiastical laws for some territories, this canon determines the manner by which the ecclesiastical authority may grant authorization to separate.

(a) The local ordinary, by means of an administrative process, may decree the separation. This decree, if granted, should include all necessary provisions for the support and education of the children (cf. c. 1154). Against the decree of the local ordinary, the parties may use the administrative recourse foreseen by cc. 1732–1739.

The resolution of these cases by administrative process before the bishop or his delegate has the advantage of allowing the use of all pastoral means to restore harmony and of avoiding, as far as possible, the confrontation of the consorts in a lawsuit.

(b) The judicial vicar or a lawfully designated judge of the diocesan tribunal may also decide on these cases by means of a judicial process, which may follow either the procedures of the ordinary process or those of the oral process (cf. c. 1693 §1).

(3) If the decisions of the ecclesiastical authority are not recognized by the civil law, the local bishop may authorize the consorts to present their separation cases to a civil court, but this authorization should never (* 147 *) be granted if it is foreseeable that the civil court will decide in a manner contrary to divine law. As the legislation of the states favors divorce rather than separation, by not providing sufficient protection to the legitimate interests of the parties seeking only a separation, recourse to the civil courts raises grave pastoral and moral problems.

It is true that a controversy over the “merely civil effects” of marriage which may derive from a canonical separation should, in theory, be of the exclusive competency of the civil courts. In practice, however, it is not possible to bring the case to a civil court and effectively separate the “merely civil effects” from the suspension of “common conjugal life,” which is of the exclusive competence of the Church. The question, therefore, of allowing cases of separation to be decided by a civil court raises moral, pastoral, and legal questions which need to be resolved by the local bishop or by the Episcopal Conference.