US Catholic Bishops vs. No-Fault Divorce

When Catholics who read First Things start talking to Catholics who read the Harvard Journal of Law & Public Policy, we can solve the problem of no-fault divorce.  The United States Conference of Catholic Bishops are meeting in Indianapolis on June 14th and First Things online edition featured an article by J.D. Flynn, a canon lawyer working for the Diocese of Lincoln Nebraska: The Civil Marriage Business.

The subheading I saw shows, “When American bishops of the Catholic Church meet next week, the Church’s obligation to regulate marriage will be up for debate.”

Flynn points out, “The state has an obvious obligation to recognize and regulate marriages. The state’s duty is to ensure that marriage has a well-ordered and well-supported place in public life, to ensure that is not subject to abuse, and to ensure that children, the natural fruit of marriage, enjoy the benefits of their parents’ nuptial union.”

Declaring the obvious, Flynn continues, “Without question, our states have failed married people. No-fault divorce robs spouses of the protection the state owes them, and enables consequence-free, unilateral abandonment.”  He disagrees with those who want the Church to get out of the civil marriage business altogether. “[I]f the Church washes her hands of ‘civil marriage,’ she will lose the credibility to advocate for married people and their children, and set the state further adrift from the obligations of justice.”

I’m grateful that Catholic canon lawyer, Flynn, recognizes that the state has failed married people with no-fault divorce.  I would go even further, to argue that the state has totally changed the definition of marriage with no-fault divorce because marriage, according to the states’ legislatures, is not ‘marriage’ at all.

To avoid confusion, let me define terms.

No-fault-divorce-civil-so-called-marriage
The relationship starts when two people say they marry each other and a state-approved witness signs a wedding license. Thereafter, parties can jointly own property and jointly have parental rights over children they bear.

Obligations to which they agree to adhere:

• Upon request by either party, the marriage shall be terminated with no distinction made between the party that wants to end the marriage and the party that does not want to end it.
• By default, marital property will be split 50/50. By default, one parent will lose everyday access to his children most of the time, and the other parent will lose everyday access to the children some of the time. Children will be court-ordered to go back and forth between mother and father.
• One parent (usually the one that loses the children most of the time, or the one that earns the most money) will be ordered to pay the other parent money for years.

Some number of parties in the U.S.A. want to enter this kind of marriage, wherein they never intend to promise permanence, and always want the possibility to opt out for any reason. Catholics would consider those marriages invalid, because the party is rejecting an essential property/element of marriage.

True Catholic Marriage
The relationship starts when two people say they want to be married for life, open to children, sexually faithful, and agree they will be oriented toward each other’s good. The marriage starts when they exchange promises that are witnessed by a priest.

Obligations to which they agree to adhere:

• They will maintain an intact home with their family under one roof.
• One spouse will have a basis for separation only if the other does something terrible violating the marriage promises (such as adultery, dangerous abuse, serious cruelty).
• Thereafter, both shall uphold obligations that are in accord with divine law and natural law, as judged in accordance with the Catholic Code of Canon law.

Harvard Journal of Law and Public Policy

The legislators believe that no abuse occurs when unilateral no-fault divorce is forced on innocent spouses and children.  In his article in the Harvard Journal of Law and Public Policy, Jamie A. Aycock clearly describes the two opposing visions about marriage. He proposes the solution: Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments.

Those who want stronger marriages, in which the other party will be held to obligations promised in traditional marriage, can simply enter a marriage contract to do so.  Civil layer, Aycock, describes this option:

“[I]ndividuals should be allowed to strengthen their marriages through the creation of additional terms. Individuals might rationally agree to the following kinds of terms: (1) restrictions on the available grounds for divorce, (2) additional burdens placed on a party seeking divorce, (3) requirements of arbitration or mediation in the event either or both spouses seek a divorce, or (4) procedures for determining custody and visitation for any children born or adopted during the marriage. In most circumstances, enforcing such provisions would further liberal values, such as individualism and pluralism, while providing the opportunity for individuals to choose to emphasize traditional or communitarian values such as interdependence and attachment.”

Mary’s Advocates believes that everyone entering a Catholic marriage has already contracted a stronger marriage, though only verbally, in front of witnesses.  We already have canon law procedures for cases of separation of spouses (which is totally different from processing a petition for invalidity of one’s marriage).

The Church could step in now, to defend everyone’s verbal marriage contracts.  If parties want to have even more clear marriage contracts, they can sign the True Marriage Proclamation Set available for free from Mary’s Advocates for free, or order a luxurious custom made set. If they don’t like our wording, they could draft their own language for a marriage contract that is in accord with the Catholic Code of Canon Law.

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