No-Fault Divorce, Standing for Justice

DECEMBER 28, 2019 




Parish Priests and Divorce

If a devastated woman approaches her pastor because she learned her husband committed adultery, the pastor might advise that she should hire a good divorce lawyer. When a faithful husband with four children tells his priest that his wife has taken their children to his mother-in-law’s and is threatening divorce, the priest might tell him to sue her in court to protect his rights.

In accord with canon law, however, the correct response is to teach spouses that their priest can never advise a spouse to approach the civil court. The Church has other solutions that are contained in our canon law. Moreover, many Americans incorrectly assume that justice is dispensed in divorce court. The civil courts are no more qualified to dispense justice in determining spouses’ obligations than Planned Parenthood is qualified to decide the rights of a baby.

With the onset of no-fault divorce, the court system became the state’s mercenary that takes children and property away from a spouse who has done nothing grave to justify separation of spouses. Divorce is an unjust lifetime sentence that forever gives scandal to children.

For Catholics, civil divorce is a case of separation of spouses in which the obligations of parties toward each other and their children are decided in accord with state law, which is contrary to divine law. Civil actions for separation or separate maintenance are also cases of separation of spouses for Catholics in which obligations are judged by the state’s morally flawed system.

For those who marry in a Catholic ceremony, both spouses are obligated to cooperate in the maintenance of one common marital home unless a legitimate (fault-based) reason for separation exists. Only in the case of an emergency (due to grave danger) is a spouse competent to temporarily separate of his or her own volition. Canon law emphasizes that none other than the bishop is competent to decide whether a spouse can file in the civil forum for divorce, civil separation, or civil annulment. The bishop may, by special mandate, delegate the exercise of this executive power to a particular diocesan staff member, who will decide whether it is tolerable for a party to file in the civil forum. The Catechism teaches in paragraph 2383 that civil divorce can be tolerated in certain cases.1 The implementation of canon law and Church jurisprudence establishes whether a particular spouse is in one of those certain cases.

When a priest hears only the complaints of one spouse, it is unreasonable to expect him to judge whether that spouse should file for divorce. The other spouse has a right to be heard because the rights to an intact home supported by both spouses and daily access to children are threatened by divorce. Furthermore, because separation cases for Catholics involve the public good, the diocesan Promoter of Justice must participate in order to protect the rights of the faithful and the children, and to ensure that the case is decided in a just manner, with a canonical process, and with appropriate records.

Clergy often learn about a marriage crisis if a divorced Catholic in a so-called second marriage wants to regularize his situation or intends to marry a new person. When the unjust outcome of no-fault divorce hurts a dedicated Catholic spouse and his or her children, the pastor might sympathize, but he likely does not consider options for protecting future Catholics from the same misery. In the United States, we have constitutional protections for entering contracts and free exercise of religion. Some constitutional lawyers support the notion of having parties to a Catholic marriage sign a marriage covenant and arbitration agreement, whereby they specify that they do not intend to have the state divorce laws decide their obligations, but rather intend to have those who have competence to implement the Catholic Code of Canon law decide obligations.

By the same rationale that a parish priest is incompetent to adjudicate questions of nullity of marriage, he is incompetent to judge cases of separation of spouses.

Diocesan Authority in the Person of the Bishop Has Competence

The Church has never relegated to the government her responsibility to determine obligations of spouses who have ceased living together. This can be traced through the twenty-first century. In 1563, following the Protestant Reformation, the Church solidified her competence over marriage cases in the twenty-fourth session of the Council of Trent (see canons 7, 8, and 12). In 1788, Pope Pius VI issued his Epistle ‘Deessemus nobis’, wherein he corrected those who wanted the government authorities to decide matrimonial cases of separation of spouses:

It is not unknown to us that there are some, who, attributing too much to the authority of the secular princes, and captiously interpreting the words of this canon [24th Trent, c. 12], have undertaken to defend this: That, since the Tridentine Fathers did not make use of this form of speaking, “to ecclesiastical judges alone, ‘or,’ all matrimonial cases,” — they [the Tridentine Fathers] have left to lay judges the power of at least investigating matrimonial cases which are of pure fact. But we know that even this sophism and this false kind of quibbling are devoid of all foundation. For the words of the canon are so general that they embrace and comprise all cases. Moreover, the spirit or purpose of the law extends so widely that it leaves no place for exception or limitation.

For if these cases pertain to the tribunal of the Church alone for no other reason than because the marriage contract is truly and properly one of the seven sacraments of the evangelical law, then, just as this notion of the sacrament is common to all matrimonial cases, so all these cases must pertain to ecclesiastical judges alone.2

Prior to anyone ever filing in the government courts, the diocesan bishop’s exclusive authority in cases of separation of spouses was reiterated by the Sacred Congregation of the Holy Office in 1860, “there must be present just causes for the separation in the Judgment of the bishop.”3 The same Congregation, again in 1883, demonstrated that “In marital cases the spouses are under the power of the bishop.”4

In the United States, the bishop’s same authority was reiterated in the Third Plenary Council of Baltimore in 1886 (n. 123, 126, 304).5 A particular penal law was included in article 126 of the Council that states that a spouse is mandated to obtain the permission of his or her bishop prior to petitioning in the civil forum, otherwise that spouse incurs grave guilt, with the consequence of being punished by the bishop. Recent documents and statements published by the USCCB are not of a legislative nature; however, when a county’s bishops’ Episcopal Conference enacts decrees in a plenary council, the decrees are binding until they are abrogated (cc. 135 §2, 439 §1, 441, 4o, 455, 456). The 1917 Code of Canon law did not abrogate the United States Bishops’ particular penal law, nor did the 1983 Code of Canon Law do so. Penal laws issued by the Holy See, which were in effect prior to the 1983 Code, were abrogated by the 1983 Code only if the laws were not repeated by the 1983 Code (c. 6 §1, 3o). Because the penal law regarding civil divorce was issued by the United States bishops, it was not repealed by the 1983 Code.

Moreover, for the entire world, the 1983 Code incorporated the requirement for a spouse to have one’s bishop’s permission prior to petitioning in the civil forum that emerged in the Council of Trent, and was advanced by Pope Pius VI and the Congregation of the Holy Office (c. 1692 §2). Many bishops have publicized the obligation to have one’s bishop’s permission prior to petitioning in the civil forum, and bishops have given their imprimatur to authors who restated same.6

Civil Courts Rule Contrary to Divine Law

Governmental no-fault divorce court judges do not weigh whether a Plaintiff has Catholic grounds for either separation or invalidity of the bond, nor do they weigh whether grounds for separation are temporary or permanent. If one party invalidly entered the marriage in which parties are separating, true justice demands that the pertinent grounds for invalidity affect spouses’ obligations and aptitudes regarding children, property, and support. Fraud, simulation, grave psychic anomalies, and mental illness should impact financial obligations and custody. For Catholics, adultery and invalidity of marriage are the only grounds for permanent separation, with invalidity always being a basis for terminating the civil marriage status. All the other Catholic grounds for separation, excluding adultery, justify only temporary separation. Catholic judgements in cases of temporary separation are to be for a determinate period of time, or indeterminate period of time which terminates when the basis for separation ceases. Only with permission of the local Ordinary can a separation continue beyond the time when the grounds for separation ceased: “In all cases, when the cause for the separation ceases, conjugal living must be restored unless ecclesiastical authority has established otherwise” (c. 1153 §2).

For example, if a husband has an unsafe temper, or if a wife becomes dangerous due to an alcohol addiction, the innocent spouse and children may need temporary relief; however, the Church’s goal is the rehabilitation and conversion of the wayward spouse. If a wife is an abandoner, the Church’s interest would be her reconciliation with her husband. On the contrary, in the civil court, an abandoning wife is most often permanently awarded half or more of the property and the children routinely lose daily access to their father, who only sees them on alternating weekends and split holidays. Additionally, the father is required to furnish mother with spousal and long-term child support. In the Church’s jurisprudence, if a woman who has broken her marriage promises was the cause of the separation of spouses, the husband would not be required to provide her spousal or child support, but rather she would be required to compensate him, and he would retain custody of the children.7

In the no-fault divorce courts, every petitioning plaintiff is awarded a divorce, and the courts have no interest in who reneged on the marriage promises, nor who was counting on those promises to be upheld. The courts have no interest in preventing children from being scandalized. Consequently, children are conditioned to believe that adultery and marital abandonment are morally acceptable.

One government court psychologist, for example, criticized an abandoned wife who allowed her three-year-old child to say “Daddy broke the family.” The psychologist recommended to the court that the mother should not be permitted unsupervised time with her children unless she forced her three-year-old to think that the father did not break the family:

It is problematic, however, that [the mother] continues to promulgate ideas in her children. Of great concern are her interactions with [her son] in my office. Specifically, she encouraged [her son] to state that his father was “breaking up” their family. Also, of great concern is the fact that [the mother] appeared to view this as positive. She has not demonstrated that she has an understanding of how this is potentially very damaging. While it is the Court’s purview to determine visitation, it frightens me that she seems to have learned very little about children’s adjustment to divorce based on her unwillingness to accept this divorce. I do not see any problems with [the mother] having unsupervised overnight visits with her sons, provided she ceases from promulgating negative views of their father.8

When one files for no-fault divorce, the government courts purport to have power over the whole family and their property. A defendant who has done nothing grave, justifying separation, will have no-fault divorce forced on him or her. For example, an abandoned wife caring for young children may be awarded a nominal sum of child support, but her abandoning husband is conversely not expected to continue contributing his full share of mutuum adiutorium (mutual help incorporated in 1983 CIC c. 1055, from 1917 CIC c. 1013). When the court relieves a husband of his obligation to continue supporting the family, which he abandoned, the court arbitrarily and injudiciously relieves him of his moral obligations that are required in accord with the canon law, under which the parties married.

In the case of an abandoned wage-earner, when the other spouse files for no-fault divorce, the wage-earner knows that the court will, by default, take half or more of the marital property from the wage-earner. For this reason, many divorce defendants are coerced into agreeing to some unconscionable type of property and child custody settlement, because to do otherwise would result in tens of thousands of dollars of attorney fees in order to prepare for a trial. If the plaintiff asks for it, the no-fault divorce judge will routinely take property from the wage-earner, evict him from the marital home, and deprive him of everyday access to his children.

Upholding Marriage

Misinformation has led Catholics to presume that any individual spouse, on his or her own authority, is permitted by the Church to file for divorce in order for the civil system to decide the obligations of spouses toward each other and their children. It is as if the faithful are to believe that the only obligation of marriage that is relevant to Church teaching is whether a spouse attempts to enter into marriage with a new person without a decree of invalidity. According to canon law, however, the civil forum is only allowed to issue judgements on the merely civil effects of marriage (cc. 1059, 1672, 1692). Anything that involves morality is not a “merely civil effect of marriage”; therefore the obligation to maintain an intact home, the obligation to contribute one’s full share of mutual help, and the right to daily access to one’s children are not effects of marriage that have ever been relegated to the civil forum.

Because separation of spouses has such grave consequences for both spouses, children, and the faithful, no parish priest is de facto permitted to judge whether a spouse has a certain case in which approaching the civil forum is tolerated. We have in our canon law and jurisprudence a process that should be undergone to ensure justice and the implementation of divine law to marriage cases. The diocesan judge’s priority in a case of separation of spouses is reconciliation: “the judge is to use pastoral means to induce the parties to be reconciled and to resume their conjugal life” (c. 1695) and the Church may use mediators to assist in the reconciliation of the parties (c. 1445). Some members of the faithful have developed insightful and effective programs to assist couples to reconcile.

For, example, Greg and Julie Alexander, who developed the Marriage Disciples Program, enjoy a 99% success rate and they also train other couples to replicate their program and become marriage disciples.9 Mary’s Advocates publishes a template canon law petition for any spouse who is seeking ecclesiastic intervention when the other spouse is seeking to break up the family. The diocesan authority is obligated to intervene and provide pastoral correction to the wayward spouse, prevent societal scandal, and issue judgements deciding the obligations of parties toward each other as a result of the canon law trail, in accord with canon law — both materially and spiritually.

We can strengthen marriage by keeping families away from the no-fault divorce courts as often as possible and by working toward outcomes that are in accord with canon law and divine law — which is the system under which Catholics exchange marriage promises in the first place.

  1. CCC 2383: “The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law {ref. footnote 176}. If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.” Note 176 reads: “Cf. CIC, cann. 1151–1155.” 
  2. Pope Pius VI, “Epistle, ‘Deessemus nobis’ 16 September 1788,” Migne, Theologiae Cursus Completus, XXV (Paris: Apud editorem, 1840): 694–700. (Pages 694–695, trans. Mary’s Advocates and Denziner: marysadvocates.org/epistle-deessemus-nobis-pope-pius-vi-1788/.) 
  3. “S.C.S. Off., 22 Maii et 19 Dec. 1860, Southwark – Fontes, n. 2272,” Collectanea S. Congregationis de Propaganda Fide seu decreta instructiones rescripta pro apostolicis missionibus, vol. 2 (Rome: Polyglotta, 1907): 483; see marysadvocates.org/sacred-congregation-of-the-holy-office/. The Sacred Congregation of the Holy Office had competence in matters of faith. Its name was changed to Congregation of the Holy Office in 1908, and to Sacred Congregation for the Doctrine of the Faith in 1965. 
  4. S. C. de Prop. Fide, instr. a. 1883, Causae Matrimoniales – Fontes, n. 4901,” Codicis Iuris Canonici Fontes. Vol. VII, ed. Gasparri (Vatican: Typis Polyglottis Vaticanis, 1935): 479–92; see marysadvocates.org/s-c-de-prop-fide-inst-1883/
  5. No. 123, 3rd Plen. Baltimore: “Since the contract of marriage is one of the seven sacraments of the evangelic law, it belongs only to the Church, to whom the whole care of the sacraments by Christ has been entrusted, to make judgments about the validity of the marriage, and of the rights and duties derived from the same {marriage}. As a result, the Council of Trent (Sess. XXIV, Can. 12.) defined: ‘If any one saith, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema.’” (Trans. Mary’s Advocates.)No. 124, 3rd Plen. Baltimore: “Since it is established by law that by marriage two spouses become one flesh; and by God’s will the marriage bond is so intimately and strongly forged that it cannot be broken or removed by any human power: it clearly appears that a most serious guilt attaches to those who seek to dissolve their marriages by appeal to the civil authorities, or, what is worse, obtain a civil divorce and attempt a new marriage, in spite of the lawful bond which still exists in the sight of God and His Church. To punish these crimes, we decree that an excommunication be automatically incurred by those who attempt a new marriage after divorce; this excommunication being reserved to the local Bishop.” (Trans. Mary’s Advocates. Note, the automatic excommunication was derogated in 1977, though it has been thereafter taught that parties in second so-called marriages would still be denied Communion if they continue in adultery.)No. 126, 3rd Plen. Baltimore: “We lay down the precept to all those, who are married, that they not enter civil tribunals for obtaining separation from bed and table, without consulting ecclesiastical authority. But if anyone should have attempted it, let him know that he incurs grave guilt and is to be punished through the judgment of the bishop.” (Trans. Rev. Culvar Bernard Alford, Cohabitation and Separation of Married Persons A Paper read at the Conference of Priests of the Diocese of Albany {Albany: November 3, 1948}.) 
  6. Circa 1886–2011. See “Resources Cited” at marysadvocates.org/research/catholic-divorce/
  7. “Father and mother were considered as correlative in regard to the matter expenses. . . . If the husband is the cause of the separation . . . he is bound to support her {the wife} for the rest of her life if the separation is perpetual in the same manner he was supporting her before the separation took place. . . . If the mother were the cause, they {the children} were to be raised by the father at the mother’s expense, especially in a case where she was wealthy.” Rev. Eugene A. Forbes, Canonical Separation of Consorts: An Historical Synopsis and Commentary on Canons 1128–2232 (Ottawa: The University of Ottawa Press, 1948), 239, 241. See other sources at marysadvocates.org/research/catholic-divorce/#Support
  8. Deborah A. Koricke, PhD, Clinical and Forensic Psychologist, November 18, 2004 Plaintiff’s Exhibit 26, Cuyahoga County Domestic Relations Case No. 03 DR 294327. 
  9. Bai MacFarlane, “Finding Candidates to Be Marriage Disciples,” MarysAdvocates.org, July 15, 2019, marysadvocates.org/research/catholic-divorce/


Bai MacFarlane

About Bai MacFarlane

Bai Macfarlane is the founder of Mary’s Advocate, a non-profit organization working to reduce unilateral no-fault divorce and support those who are unjustly abandoned. Mary’s Advocates publicizes canon law and constitutional principles that could be used to reduce the injustice of no-fault divorce. They provide a support network for those who remain faithful to the other spouse because divorce and separation do not end a marriage.660

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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