No-Fault Divorce, Standing for Justice

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.

Comments

  1. Catholics are married in two ways at every catholic ceremony- civilly and sacramentally. The holy Catholic Church, in Her wisdom, and whom I serve with great love, required a civil divorce prior to my application for annulment. Required. I did not “believe” in divorce, and was not sure how to proceed. The Catholic Tribunal explained that they wanted our family to be materially stable before the annulment proceedings began. A canon lawyer friend explained that civil divorce is the “stuff and taxes” of the civil marriage which also took place on my wedding day- it is a contract, not a covenant (which the sacrament of marriage most certainly is, if valid), and therefore civil marriage does not require “belief.”
    I decided to trust the Church. Sure enough, the no-fault divorce was fast (thank God) and absolutely essential to the welfare, freedom and dignity of my children and myself.. Because I made the (beautiful) decision to walk away from my career to stay home to raise/educate our children, I was financially helpless and vulnerable to the spouse whom I was petitioning for annulment; I would not have been free to tell the truth during the annulment process without the divorce and we would have been homeless without the material care it legally ensured. To assume finances would have been provided without legal, state consequences is, in my opinion and experience, irresponsibly naive.
    Meanwhile, I “do believe” in the sacramental, Catholic marriage which may have taken place on my wedding day, considered valid until proven otherwise. I remained faithful to my wedding vows (pure grace, totally possible) until I received the Church’s decision (invalid), and have since discerned single consecrated life- although if following the Declaration of Nullity, God had wanted marriage with a created man for my family, I was open to that also.
    Bai MacFarlane makes the excellent point that we do not look to the civil court for the truth. She then speaks of divorce “conditioning” our kids, and “scandalizing” them- both serious allegations which cannot occur unless life occurs in a vacuum. J. Hardon’s Modern Catholic Dictionary defines scandal as “Any action or its omission, not necessarily sinful in itself, that is likely to induce another to do something morally wrong.” Parents have the freedom to avoid “doing something morally wrong” following a divorce. Parents have the ability to stay in prayer, learn and share Church teaching, see a spiritual director, and be a charitable example to their kids. As a Clinical Psychiatric Practitioner, I completely agree with the “government Psychologist” (who could very well be Catholic) cited by MacFarlane, who was “frightened” that a mother was allowing her three year old to say that “daddy broke the family.” That divisive thought did not occur in a vacuum; it is inherently harmful, involves the psychological splitting of parents, and is a form of conditioning the young child- NB this conditioning is inflicted by the mother, not the civil court.
    Parents also have the freedom to explain the important contractual role of civil court in society, as well as its limitations; its decisions are not enough for a people who believe in a covenant, and civil court may not tell the truth of a situation… but that is not its role. MacFarlane’s thesis relies heavily upon an unnamed “ecclesiastical court” and “diocesan authority” – to whom is she referring? Whoever they are, it would be unlikely that these “authorities” begin with the condemning bias that the petitioner is seeking to “break up the family”; additionally, these authorities would know that a person loses their right to see their children if their behavior has warranted it. Further, this Catholic Court will need a strong arm to enforce the material decisions rendered.
    At any rate, my family is one of many, and might not be representative- however, we are a a faithful Catholic family who followed the path of annulment as instructed by the Church, and a tragic situation was renewed by the Truth. To pretend we were capable of sacramental marriage when we were not would be living a lie and potentially scandalous. While attaining a divorce sadly resulted in the loss of many Catholic “friends”, our obedience to the Church has produced rich fruit – our children’s faith and trust in the Catholic Church is strong, and we have compassion for one another, in all our woundedness. For these reasons, I believe it is crucial to understand the essential role a no-fault divorce can serve for some families as a first step in the pursuit of living in the truth as decided by the Church. Divorce can, and for my family most certainly did, ensure the dignity and justice of those most at risk. In Catholic life, civil divorce can be an instrumental means to a divine end.

    • Because divorce is a sin (with civil divorce only “tolerated” under very, very narrow conditions: https://www.catholic.com/magazine/online-edition/when-does-the-church-tolerate-divorce), there is no justification on earth for the Church to *mandate* this sin before she will agree to look at the validity of the marriage. How can a sin be required by the Church? It’s an absolute scandal. No-fault divorce is a scourge, and yes, it is often true that “Daddy (or Mommy) broke the family”– that does not mean we are not to love the parent who sinned against the marriage and shattered the child’s family, but we must not lie and pretend that “everything is fine” and “nothing bad happened here by anyone.” That is gaslighting the children of divorce, and it’s epidemic. I had no idea myself until I wrote Primal Loss: The Now-Adult Children of Divorce Speak (endorsed by Cardinal Sarah and Bishop Olmsted), which gives voice to 70 adult children of divorce (free PDF: LeilaMiller.net/digitalbook). Their testimonies are devastating, but these silenced millions are finally being heard. May God forgive us for cooperating with the sheer evil of no-fault divorce in our land.

      • Avatar John Farrell says:

        Dear Leila, if a spouse follows your “private conscience legitimizes divorce choice” heresy as explained in your link https://www.catholic.com/magazine/online-edition/when-does-the-church-tolerate-divorce, then who are we to judge if USA bishop’s require state regulation of conjugal life before annulment? That’s up to the divorcing spouse’s conscience, right? BUT, if Bai MacFarlane is right, that only bishop’s permission legitimizes divorce, then the USA bishop’s rule about “divorce first” is truly evil because they are replacing divine and canon law with civil no-fault law. Your error is that you say divorce can be tolerated if the SPOUSE judges that there is no other possible way. The Church says only when the BISHOP judges that there is no other possible way. If you let go of the heresy of legitimate private divorce, your complaint about the divorce fist rule makes perfect sense. PS, we pretend that “everything is fine – nothing bad happened here” because of articles like yours espousing private divorce competence – no objectivity. Bai is giving Catholic objectivity; divorce is always external ecclesiastical forum – or illegitimate.

      • Hello Leila,
        I am surprised at your response in this publication, after reading your cited article. Above, you state that there is “no justification on earth” for the Church to mandate the “sin”of divorce prior to investigating the validity of a marriage- did you read the important and legitimate reasons the Catholic Church required a divorce first for my family, and how well we are all doing in our familial relationships and living the Faith because of the divorce and consequent (although much later) Declaration of Nullity? Since your response, another person has shared similar positive familial results despite serious family dysfunction (props to them for the courage to share their story). They also indicate that the divorce served a crucial role ensuring the dignity and freedom of their family.

        Further, I believe you create a false dichotomy by suggesting that a person either tells a three-year-old that Mommy or Daddy is “breaking the family”, or that they lie to the child (which is not gaslighting, unless part of a long term, manipulative process- although I agree with you that lying and denying certainly cause harm). As previously stated, under no circumstances should a child of three be told this- instead, many remarks and emotions need to be restrained in their presence. The process of revealing (some) information over time and what to say in the meantime should be discussed with people you trust- through prayer, spiritual director, books, Catholic child therapist, devout friend, etc.

        In addition, you declare that divorce is “sheer evil”, a sin and a scandal- this kind of remark strikes me as inaccurate, as the Church requires it and you acknowledge the legitimacy of “civil” divorce vs. “divorce” in your article. (btw, aren’t all divorces “civil”, or are you suggesting a new vocabulary for clarification purposes?) People who present their testimonies in your PDF allegedly have horrific experiences because of the divorce- as with a few other responses, it sounds as though people think the divorce caused or escalated the dysfunction. So I wonder- did you study the role of the dysfunctional family within the context of the divorce? Bottom line: if a person is going to abandon their family for whatever reason, why is this the court’s fault? Do we know this answer with certainty, or are we making assumptions? Clarification from anyone reading this appreciated.
        Christ’s peace,
        Anon#1

    • Avatar Anonymousaswell says:

      I am a child of divorce whose devout Catholic mother regularly made statements about the grave evil our father committed in “abandoning” the family (among many other highly-negative comments about him), and I can attest to the harm it did all four of us. I would never subject any of my children to that type of abuse (and yes, I consider it emotional abuse). We are all sinners, and we are all broken. Repeatedly pointing out the evils/sins committed by a parent who leaves the marriage to that parent’s children is a terrible thing to do (especially when done by the other parent). Frankly, my mother’s behavior reinforced to us that her own issues played a part in my father’s inability to live with her (and I in no way excuse my father’s many issues, including addictions I myself could never have tolerated). Because of my own experiences as a child, I feel a kind of visceral horror anytime I hear of a mother behaving as the one described in Bai’s article.

      I was nothing but relieved when my father left, because my parents were so awful to live with together that the tension in the home was intolerable and caused me to experience physical symptoms of stress as a young child. The harm done to me was done by their completely dysfunctional relationship, not by the divorce. My mother’s personality disorders combined with my father’s addictions were completely toxic, and due to the nature of the issues, the toxicity was highly unlikely to ever be resolved. I am thankful neither remarried, for a whole host of reasons.

      The good news is that the three of us children who married all have stable, happy marriages, with six children each. We all feel very strongly about the importance of forming and maintaining healthy spousal relationships for the sake of our children. I remain very grateful to my parents for bringing us into this world, despite their own brokenness. In this broken, sinful world, a lot of broken, sinful people are going to have children, and that’s just the way it is. Thankfully, God is with us to provide redemption, healing, and hope.

    • Avatar Bai Macfarlane says:

      To answer you question. Depending on the context and the applicable canon law, an ecclesiastical court could either be a diocesan Tribunal, or a Bishop, or his mandated delegate. These authorities are described in canon law. For more information see. http://marysadvocates.org/cases-for-the-separation-of-the-spouses-by-diego-lora/

  2. Avatar Philip Stevenburg says:

    Bishop Olmsted of Phoenix doesn’t invoke the 1917 Code nor 3rd Council of Baltimore in this 30 March 2016 letter excerpt to a Phoenix parishioner. He does invoke the CCC and the 1983 code as a basis why it’s OK not to consult him either for independently approaching the civil forum or to secure separation. Olmsted’s letter seems to counter your article here. Bishop Olmsted also has a Ph.D in Canon Law. Karl Keating, formerly of Catholic Answers, says 6.1 and 6.2 of the 1983 Code nullifies the 1917 Code and 3rd Council Baltimore. Your response, if you please.

    https://catholicdivorce.blogspot.com/2019/07/open-letter-to-bishop-olmsted-re-usa.html?fbclid=IwAR1mP7UdjNjARrBsYaD708TGBiDnBKxdk7jEhiCtU5oLwcBJYGrSGwfUHRU

    https://www.facebook.com/photo.php?fbid=2308053675909201&set=a.104545786260012&type=3

    • Avatar Bai Macfarlane says:

      Hello Philip, Let me address your points one at a time.

      (1)
      PHILIP WROTE: “Karl Keating, formerly of Catholic Answers, says 6.1 and 6.2 of the 1983 Code nullifies the 1917 Code.”
      BAI’S REPLY: ’83 c. 6.1 does say “When this Code comes into force, the following are abrogated: the Code of Canon Law promulgated in 1917,” so I have nothing to add.

      (2)
      PHILIP WROTE: “Karl Keating  …  says 6.1 and 6.2 of the 1983 Code nullifies … 3rd Council Baltimore.” and “That 3rd Council Baltimore was referenced in the 20th century is immaterial as ’83’s 6.2 similarly obliterates the declarations from that council and fuels the animus from those who don’t like the wholesale cancelling effect of 83’s 6.2.”
      BAI’S REPLY: There is no basis to say that 1983 canon 6.1 or 6.2 abrogates every article promulgated in 3 Baltimore. 1983 c. 6.2 says, specifically, that these are abrogated: “other laws, whether universal or particular, which are contrary to the provisions of this Code, unless it is otherwise expressly provided in respect of particular laws.”  The sections of 3 Baltimore that I quote (n. 124, 126, 304) are not contrary to the provision of the ’83 Code. Furthermore, ’83’s c. 1692.1 specifies that bishops are welcome to make their own particular law regarding cases of separation of spouses. I challenge Karl Keating to revisit his claim that 1983 Code nullifies all of 3 Baltimore, particularly (n. 124, 126, 304).  One sentence from 3 Balt. no. 124 was abrogated (but not by ’83 code). See my analysis of the effect of the 1917 Code and the 1983 Code on 3 Baltimore here: http://marysadvocates.org/third-plenary-council-of-baltimore-art-126/

      (3)
      PHILIP WROTE: “[Bishop Olmsted] does invoke the CCC and the 1983 code as a basis why it’s OK not to consult him either for independently approaching the civil forum or to secure separation.” [The letter from Bishop Olmsted linked states the following: 1) The Conference of Bishops of the United States of America has never put forth any particular legislation on the requirement of Catholics to seek the permission of the diocesan bishop to separate;” … “3) I have never interpreted the provision of Can. 1692 was something required of the faithful either from a moral or legal point of view.” … “As the interpretation from the Council for Legislative Texts makes clear, the faithful are not under any kind of moral imperative or even a judicial one in seeking my permission to separate.”]
      BAI’S REPLY:  I have a copy of Bishop Olmsted’s letter (https://tinyurl.com/tg7zhqt).  Regarding point (1), the letter is incorrect. Third Balt. n. 124, 126, and 304 demonstrate the letter’s error. Regarding Point (3), the letter mistakenly attributes the authority of the Pontifical Council for the Interpretation of Legislative Texts to a document that does not have that authority. Prior to a document bearing the authority of the Council, the provisions of Pastor Bonus art. 155 must be implemented: “the Council is competent to publish authentic interpretations confirmed by pontifical authority, after consulting the dicasteries concerned in questions of major importance.”  The document referenced by the letter was signed only by Card. Coccopalmerio on 4 November 2015. See Card. Cocco’s letter https://tinyurl.com/vlxfkl2. The interpretation never underwent the required scrutiny of other dicasteries involved in sacraments or doctrine on the faith. Card. Cocco’ cites no one else’s opinion when making his assertion about divorce. If Bishop Olmsted wants to promulgate the private opinion of Card. Cocco’, I can only bring to his attention other opinions. Moreover, Cardinal Cocco’ is known for his 51-page book on the Eighth Chapter of A.L. and not showing up at his own press conference (See National Catholic Register, “Vatican Cardinal: Some in Irregular Unions Can Receive the Sacraments” Feb. 15, 2017). The letter signed by Bishop Olmsted cites only one opinion (Card. Cocco’) as the basis for his conclusion. I’ve collected opinions of English, Spanish and Italian Canon Law commentary books, published after the 1983 Code, that have been go-to sources for canonists for decades.  http://marysadvocates.org/research/catholic-divorce/#Bishops_Intervention_before_Party_files_in_Civil_Forum

      (4)
      PHILIP WROTE: “the phrase ‘can decide’ in 83’s 1692 doesn’t mean ‘must decide’ or ‘is required to decide’ or ‘has to decide’ or ‘is obligated to decide’.
      BAI’S REPLY: The word “can” is also used regarding how the Ordinary can allow a wedding outside the parish church (c. 1118). The concept of “can decide” is used in everyday life whenever someone gives you license to do something you are not normally allowed to do. Because a bishop can decide that parties can marry outside the parish Church does not mean that everyone has license, on their own authority, to get married outside their parish church. For, example, I “may decide” to loan you my car. That does not mean I must decide to loan you my car, or am obligated to decide to loan you my car. The permission that a bishop “may decide” to give a party, prior to the party petitioning in the civil forum in a case of separation of spouses is a type of singular administrative act.  Professor William Daniel, at the Canon Law School at Catholic University of America has written “The Singular Administrative Act in Canon Law” (Studia canonica 50 (2016): 175-247). He points out that in cases of separation of spouses, the bishop’s permission prior to a civil action is a licentia. There is an obstacle that impedes the exercise of a power. The obstacle impedes a person from petitioning in the civil forum. Daniel writes, “By means of the licentia, the public administration exercises preventive control over the activ­ity of others in order to ensure its liceity or even validity.” See http://marysadvocates.org/canon-law-category-of-bishops-permission-to-divorce/

      (5)
      PHILIP WROTE:  Among other reasons, this is why the chief assertion by the author in this article that the “Church has never relegated to the government her responsibility to determine obligations of the spouses who have cease living together” is simply wrong because the 1983 Code does so allow the rights of the married to seek conjugation separation by their own authority.
      BAI’S REPLY:   My article is challenging the mindset that the civil government has competence to judge parties’ obligations in cases of civil divorce, civil separation, or civil annulment.  My research has never led me to conclude that a married person may never separate on his or her own authority. In the case of danger of delay – due to severe dangerous abuse – a person may separate on one’s own authority.  On Mary’s Advocates website, I’ve collected descriptions of the severity that justifies separation. http://marysadvocates.org/research/catholic-divorce/#Principles_Applicable_to_Cases_of_Separation
      My article emphasizes that a member of the faithful is not supposed to petition the civil forum for divorce (civil separation or civil annulment) without prior permission of the bishop. If you find that I am wrong, you also finding that all the opinions I cite are wrong.  You cite Bishop Olmsted and I humbly challenge that he and Card. Coccopalmerio are both wrong, but not based on my own opinion. My reasoning is standing on the shoulders of others before me.

      (??)
      BAI’S QUESTION FOR PHILIP:  Do you think it is morally acceptable for a stay-at-home mom with several young children to be forced to enter the workforce and leave her children raised by strangers because her husband reneged on his marraige promises? Do you think it is morally acceptable for a wage-earning husband to be evicted from his own home because his professed-Catholic wife is reneging on her marriage promises?

      • Sorry to jump in here, but I think this gives the perfect summary of the problem: “The concept of “can decide” is used in everyday life whenever someone gives you license to do something you are not normally allowed to do.”

        That’s just it – the CIC is not “everyday life,” it is a specific kind of document requiring a specific kind of hermeneutic, which includes reading the whole text as one integral whole, in light of the tradition behind it and how it actually works in practice on the ground. Nowhere do we read that a person is obliged to go to the ordinary before seeking a civil divorce, we simply read that the ordinary CAN make decisions, including to allow the civil forum to be approached. In the world of canon law, that may or may not mean what it seems to imply. A strong case has been laid out by the majority against what it seems to imply – viz., that one is bound to go to the bishop first.

        I don’t think you’re reading the Daniel article correctly… His point seems to be (though it is difficult to tell with so much removed) simply to clarify what certain kinds of singular administrative acts exist and how they are referred to in the CIC, what language is involved, with examples, etc. It does not seem at all that he is advocating your own position, he is merely alluding to an example of the kind of act he has in mind to discuss. That’s quite different from launching a practical argument about real obligations upon the faithful or their governors. I don’t think anyone disagrees on the point that a bishop saying “you can do this” is a kind of permission. The point is whether and to what extent faithful are really obliged to approach the bishop before the civil court. You could easily settle it by contacting him and asking if his article supports your view, and if he agrees with your view at all.

        You also seem to misunderstand Pastor Bonus in this comment above – as if the prefect is not competent to issue documents on behalf of his own dicastery. You seem to be conflating “dicasterial interpretation” with “authentic interpretation.” The pope, and the pope alone, interprets the law authentically, and he can do so through the PCLT if he wants.

        The more I consider this issue and your defense, the more problems I see. Frankly, I think what you are proposing would be an absolute nightmare if attempted/observed in most corners of the western world. Can you imagine diocesan chanceries, already overworked, understaffed, underfunded trying to take on EVERY case of divorce as well, setting up an entire process parallel to matrimonial causes “per se” (which regard nullity), and all of this with so many problematic bishops in power who disregard indissolubility anyway? Think of the show-trials that will be used to say “the Church agreed that I should get a divorce.” Now, foreseeing abuse or mismanagement of the law is not a reason to dispense with the law, but it is at least an incentive to see if maybe you are reading the law wrongly. In this case it seems you are – ESPECIALLY in your claim that 3rd Baltimore is still in force in any relevant way. I’m sorry, but that is just incorrect, as I’ve explained a few times (c. 6.5, c. 1016 and c. 1961 of 1917 CIC just destroy that claim).

        Interested to see a reply but cannot continue the discussion much longer. I’ve made my case.

  3. It is important work to protect marriage and uphold due process, canonical and civil. Thank you for the good work you are doing. However, it is important you are aware that the canonical issue is more complicated than you are making it out to be. You may find this article (by Dr. Ed Peters) to be of help in understanding these strange canons – which basically do not mean what they say.

    http://www.canonlaw.info/PDF-Divorce.pdf

    • Avatar Sharelle Temaat says:

      Dear Guest, I see that you don’t care to continue the discussion, but you brought up Dr. Edward Peters whose contribution to the divorce/nullity/remarriage scandal in the Church is considerable; however, I’ll be brief here.

      Peters’ 2004 book Annulments and the Catholic Church: Straight Answers to Tough Questions helps Petitioners in all cases to get the Affirmative decision that they want so they can “remarry” in the Church. Peters constantly uses the terms “former spouse,” “ex-husband,” “ex-wife,” “former wife,” “ex,” in referring to what actually are separated spouses when the marriage is considered valid until proven null.

      Using the terminology of divorce gives the person in the pew the idea that civil divorce actually dissolved the marriage when no such thing is true. The proper term that Peters should use is “parties” or even “spouses.”

      The main point of Peters’ book is that 75% of Declarations of Nullity are decided on issues of capacity and consent which he does not explain or define. Two years before Peters’ book was published, Father Lawrence G. Wrenn’s book Judging Invalidity was published by the Canon Law Society of America.

      Father Wrenn explains what kind of evidence proves incapacity for marriage or lack of due discretion for valid consent. Evidence like:

      His parents had always treated him (Stanley Weaver) like a prince.
      Once married, the negative aspects of Stanley’s personality began to surface.
      He would spend at least a couple of hours a day working out in the gym.
      Betty also noted that Stanley felt superior to everyone else.
      The court-appointed psychiatric expert reported that Stanley sees the world as his apple.
      This same expert sees Stanley as having a moderately severe Narcissistic Personality Disorder.
      His pathology disposed him to be incapable of giving marital consent. (Pages 10-11)

      Wrenn’s books would be comedy if they had not been used to destroy the Catholic family. And Edward Peters could have done so much to expose the tragedy. Thank God for Bai Macfarlane.

    • Avatar Bai Macfarlane says:

      Regarding Ed Peters article, he took out of context Italian texts that lead readers to conclude the opposite of what the Italian authors said in previous pages. Read the on-line debate LINKS

      18 May 2017, Ed Peter’s blog challenged my findings without identifying me HERE
      (Spring-Summer, 2017), Peter’s article in Fellowship of Catholic Scholars Qrty. challenge my finding w/out ID’ me HERE
      20 May 2017, my response to Peter’s critique HERE, includes Latin writings of Cappello from which Peters’ took a section out of context, leading Peter’s readers to mistakenly conclude that I’m contradicting Cappello.
      July 7, 2017 Catholic lawyer, Clay Rossi wrote about Bai Macfarlane and Ed Peter’s public debate HERE
      July 8, Ed Peters criticized Catholic lawyer, Clay Rossi HERE
      July 10, 2017 Rossi answers Peters HERE
      July 8-10, 2017, my blog about the Rossi/Peters discussion HERE

      • Hi Bai,

        Thanks for your reply.

        I find your case unconvincing, given the above arguments from Dr. Peters, the Olmsted letter, the hinge of the relevant canons being “can,” as pointed out by another commenter, and what I find to be lack-luster responses, especially with sentences as this, taken from your critique linked above:

        “Cappello was only discussing the possibility that divorce, in some cases, could be tolerated. However, Peters starts drawing his own conclusions about which the reader is unsure whether the conclusions are from Capello or Peters.”

        But then, you admit you have not even bothered to look at the text yourself:

        “Since Peters did not provide the exact quote from Cappello of which Peters either summarizes, agrees, or extrapolates, I can’t comment on what Cappello did, or did not, write.”

        But you were sure it was a bad interpretation, without even looking at the text? Strange.

        You then produce part of the text in an update and also on a separate page, with two different beginnings… “Cum causai…” and “Cum causae…” And two translations are given, one beginning “Since marriage cases belong,” and one beginning “When marriage cases belong,” which are not insignificant differences. I am not a Latinist and do not have the time to go through the entire text you’ve produced of Cappello, but it seems there is much more going on than you want to admit. Parsimony, unfortunately, is not always the best hermeneutic for law.

        You seem to misunderstand section 831, anyway. It does not appear to me to be, as you say, discussing merely whether it is “tolerable” to use the civil courts to adjudicate a divorce. Actually, appears to be a statement even stronger than Dr. Peters’ analysis makes it out to be. Cappello is saying that it is possible for civil courts to DISAGREE WITH ecclesiastical courts (“If in a civil forum the separation having been decided by the ecclesial authority should not be recognized, and thus it should not be assigned its civil effects . . .”) and for couples to go along with this decision, so long as the courts are only ruling on a separation’s civil effects. And if the civil courts have the right to disagree with ecclesiastical courts, the only rational conclusion is that ecclesiastical courts do not need to be approached first, at least in non-concordat nations, and so long as it is only a matter of civil effects. This seems to be the right way to read Cappello. But I digress, it is not just one author or one issue that stands in the way of your argument.

        I also notice you seem to conflate c. 915 and c. 916 in your reaction (same link) to the claim that the civilly divorced are not barred from Holy Communion – as if mortal sin alone suffices to bar someone publicly from Holy Communion. That’s a common mistake. Even stone-cold unrepentant serial-killers “can and must” be admitted to Holy Communion if they present themselves publicly, unless their sin and obstinate perseverance is manifest.

        Another commenter mentions “desuetude.” Have you read St. Alphonsus on this topic? Laws do need to be enforced… or else, in this case it seems, since there are also arguments calling their “literal” interpretation into question from weighty authors, they become at least doubtful. And as the Doctor, a lawyer himself, repeats ad nauseam, a doubtful law does not bind.

        Anyway, that’s just my 2 cents. Interested to hear your thoughts.

    • Avatar Bai Macfarlane says:

      GUEST WROTE: “Cappello was only discussing the possibility that divorce, in some cases, could be tolerated. However, Peters starts drawing his own conclusions about which the reader is unsure whether the conclusions are from Capello or Peters.” But then, you admit you have not even bothered to look at the text yourself:
      BAI’S REPLY. I have looked at Cappello and have a webpage devoted to his work. http://marysadvocates.org/pontifical-gregorian-university-civil-divorce-and-church-1947/ “838. As it pertains to spouses, these things must been cared for in practice:” …” 4) Since matrimonial cases pertain to the Church, it is not permissible for spouses to seek a civil divorce, unless they have obtained a canonical license of separation first.” [Italian original: 838. “Quoad coniuges, haec in praxi tenenda sunt:” … “4) Cum causai matrimoniales ad Ecclesiam pertineant, non licet coniugibus petere divortium civile, nisi antea ob causam canonicam licentiam se separandi obtinuerint (15)

      • Hi Bai,

        Yes, I speak directly to your follow-up research… which I found problematic. I said this in the same comment…? Why do you not bother to address that? Do you not see how you are reading a contradiction into Cappello?

        Did you also see my comment further down, which expands on the point? It also points out that your claim that 3rd Baltimore’s penal legislation wan’t abrogated by the Pio-Benedictine Code is just plain wrong. It is right there in c. 6 of the 1917 CIC… If a penal law is not mentioned in the universal code, it is abrogated. And the sense of the canons on civil divorce seems to fly in the face of n. 126. Quite a leap in logic to show how the 1917 CIC does not provide legislation “contrary” to 3rd Baltimore on this point. You’ll have to demonstrate it to be otherwise, as it seems clear. You might start with a study of Dennis Burns’ piece on the abrogation, derogation, and desuetude of 3rd Baltimore from CLSA Proceedings (31) 1969.

        My motivation for bothering is not that I am a proponent of divorce – quite the contrary, more than I care to explain – but you are going around disturbing consciences when no such thing is necessary. Advice: don’t do that. Once again following Cappello, even if it were obligatory to approach the ordinary first, which it is not, knowledge of this positive ecclesiastical law is basically zero, and so long as it remains that way it seems safer to allow people to violate the merely ecclesiastical law unknowingly, generally speaking. But it is actually not the ecclesiastical law at all.

        You’ll have to respond to my points – more than just the first line – or I’ll have to discontinue the discussion.

        All in good will…

  4. Avatar Sharelle Temaat says:

    God hates divorce. Jesus said that to divorce and remarry is adultery. Adulterers have no place in heaven St. Paul writes to his converts in Ephesus.

    But we know better.

    What absolutely blows my mind when Catholics divorce/petition for nullity/remarry is how they can ignore the bitter sobbing of their children in the next room who just want Mom and Dad back together.

    What “healing” occurs to make parents oblivious to their children’s suffering? I’ve observed that it is their happiness in finding a new romance. They love being in love. Like overaged adolescents, they defend their right to be happy. Now.

    There are therapists, counselors, psychologists, and psychiatrists who offer counseling and drugs to get their children through the breakup of their family.

    We can argue what laws are or are not currently in effect, but the bottom line is that millions of kids just went through another holiday season visiting Mom and her new man one-half of the day, and Dad and his new woman the other half, and it was not merry.

    • My kid’s sobbing stopped when their dad left the house. He is doing much better now that we are living in the truth- marriage invalid. I have never had another love interest or remarriage and neither has he.
      The cross of living through the realization that something was very wrong, and consequent annulment process while following Church teaching (stay faithful to vows, put kids first)- has resulted in happy and well adjusted kids. It can be done.
      I am just getting strong again and would like to help other families going thorough his. It is very tempting to seek love from another as your world is falling apart. I understand what they are going through. Some of your thoughts are helpful- do you have any ideas regarding how we can help parents stay strong in doing what is best for their kids while going through this process? Thank you!

      • Avatar JOHN FARRELL says:

        Dear Anon #1, I’d say that Catholics cannot and should not sidestep the separation process and only go thru the annulment process. Both are of divine and canon law, as Bai points out. This process is designed to do what counsellors can’t do – authoritatively declare cause of separation (if any) and present wayward spouse with solution – shape up, or no Communion (damnation). This is best for all parties involved, don’t you think?

  5. Avatar Philip Stevenburg says:

    Contrary to the assertions that the 1917 Code remains operational as long “if code does not overturn, it remains” is simply false. This is a common position held by those who don’t like the obliterating effect of ’83’s 6.1. That 3rd Council Baltimore was referenced in the 20th century is immaterial as ’83’s 6.2 similarly obliterates the declarations from that council and fuels the animus from those who don’t like the wholesale cancelling effect of 83’s 6.2. It is an inconvenient reality to many that the 1983 Code is the Code of the present day. Bishop Olmsted, being a canon lawyer and having a PhD in canon law, knows this. He knows also that the phrase “can decide” in 83’s 1692 doesn’t mean “must decide” or “is required to decide” or “has to decide” or “is obligated to decide”. Thus separation powers are not obligatorily mandated to the Bishop under present day Canon Law. Similarly, approval powers to approach the civil forum are similarly not obligatorily mandated to the Bishop under present day Canon Law. Among other reasons, this is why the chief assertion by the author in this article that the “Church has never relegated to the government her responsibility to determine obligations of the spouses who have cease living together” is simply wrong because the 1983 Code does so allow the rights of the married to seek conjugation separation by their own authority. Bishop Olmsted referred to the Pontifical Councils for Legislative Texts 4 Nov 2015 statement that “the Church recognizes the right to conjugal separation when there are lawful causes involving non-compliance or irregular compliance with conjugal rights and duties (cf. cc. 1151;1152;1153 CIC). The Catechism of the Catholic Church states clearly that “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”. Thus Bishop Olmsted concludes “…the faithful are not under any kind of moral imperative or even a judicial one in seeking my permission to separate…[and]…I have never had a need to compel the faithful to seek my permission in these matters…”. In short, Bishop Olmsted’s 30 March 2016 parishioner letter undermines the chief theses of the author’s article.

    • Avatar John Farrell says:

      Philip Stevenburg, 3 Balt #126 was referenced as binding thru the 20th century. Nowhere is it referenced as legitimately abrogated – that’s because it’s not. The penalty portion of #124 was abrogated in 1977, but #126 remains wholly intact. Ask Ed Peters if 3rd Council of Baltimore #126 (bishop’s permission to divorce – or mortal sin) was ever abrogated. He will say that the answer is “murky.” To me, it seems that he really does not want to know because it means that all those annulments back in San Diego were performed on live marriages.

      https://en.wikipedia.org/wiki/Plenary_Councils_of_Baltimore
      “Title iv established two excommunications latae sententiae that were applicable only to Catholics within the United States.[3] The first (n. 124) applied to American Catholics who, after obtaining a civil divorce, attempted remarriage. This excommunication was lifted (retroactively) in 1977 by Pope Paul VI at the request of the National Conference of Catholic Bishops.

      The second excommunication (n. 127) applied to American Catholics who married (or attempted marriage) before a non-Catholic minister. This excommunication was later complemented by canon 2319 of the 1917 Code of Canon Law, which in turn was modified in 1953 to subsume the U.S.-only excommunication. The excommunication of canon 2319 was subsequently lifted (retroactively) by Pope Paul VI in the 1970 motu proprio Matrimonia Mixta.”

      • Avatar Bai Macfarlane says:

        PHILIP WROTE:  You wrote about the necessity to “fulfill the good of the spouses requirement which wasn’t discovered until later in the annulment investigation.”
        BAI’S REPLY: Though my article was about divorce, you raise another point about annulment. I’ve seen many writers repeat an incorrect definition of “good of the spouses.”  Many think this is a catch-all for all sorts of undefined concepts. According the Roman Rota judge (guest of Cdl. Raymond Burke) “good of the spouses (bonum coniugum) (cf. can. 1055 §1 CIC 1983) was chosen to describe the secondary end.” […] “In summary, the bonum coniugum for the Code Commission is the secondary end of marriage,” [mutual assistance and remedy of concupiscence]. Furthermore, “the 1977 Code Commission inserted the phrase bonum coniugum into the Code.” See http://marysadvocates.org/rota-judge-teaching-on-bonum-coniugum/
        PHILIP WROTE: You wrote about how a, “wife may have had to boot him to protect inheritance and finances.”
        BAI’S REPLY: With no-fault divorce, booting a husband is no assurance of  protect finances because the government makes no distinction between the spouse who reneges on the marriage promises (by squandering money) and the spouse who was counting on the promises to be upheld. As I said in my article, “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.”

    • Avatar Phillip Stevenburg says:

      Hello Bai, thanks for responding so quickly and thoroughly. You’ve given me much to think about. My reply at this time will be incomplete as I need to head out for awhile, but I didn’t want to let too much time go by. So for now, here is a very partial reply to some of your responses.

      First, as regards to you “Bai’s Question for Philip”, my answer is “generally, no”. Let me explain. I assume in both cases the deserted wife or booted-out wage-earning husband is/are generally innocent of doing things directly harming their respective spouses. So, in this circumstance, the reply is “generally, no”.

      However, it may be discovered that the stay at homeschooling mom ain’t so innocent. She might have had a hidden drug addiction and the husband found out about it. So he reneged because he turned out to have had diminished mental capacity (couldn’t cope with his recent discovery of his wife’s clandestine drug problem, thus that husband couldn’t fulfill the good of the spouses requirement which wasn’t discovered until later in the annulment investigation. So, in this circumstance, regrettably yes.

      And, in the case of the booted wage-earning husband, the wife may have had to boot him to protect inheritance and finances should she have discovered he had squandered away their HELOC based loans on bad gambling debts or poor investments. So, in this circumstance, regrettably yes.

      The problem of 1692’s “can decide” issue. So I’m not a Canon lawyer, and neither are you. I’m also not a regular lawyer, but I’ve worked with some attorneys knowledgeable in contract law. They tell me “can” and “should”, and even in some cases “will”, are weak words for contracts. Go ahead and Google it, “can” is a very soft, mushy word, that you can bend, twist and shape it so that a Mack Truck could drive through it. “Can”, I believe, kills the obligatory force to engage in only one per-determined way. A bishop’s can decide, or not to decide. His call. If he doesn’t decide, then others will. Thus a spouse can take unilateral decisions and suffer no legal or moral consequences by virtue of making that unilateral decision. Thus Bishop Olmsted opts out of making decisions to engage because Canon Law of the Day allows him to do just that.

      With regards to your assertion that Card Cocco’s letter lacks credibility for lack of dicastery consultations, well, Card. Cocco. may not have had to. Why? Because he is simply pointing out or reminding a generic, obvious fact that “can” is an option-rich word. It can go one way or the other.

      Feel free to convey your challenge directly to Karl Keating that Keating has “no basis to say that 1983 canon 6.1 and 6.2 abrogates every article promulgated in 3 Baltimore. Karl Keating isn’t a Canon lawyer, just a regular civilian lawyer. But to the extent that Canon law phrases parallel Civil law phrases, he could provide some pointers to you.

      Similarly, feel free to directly consult with Bishop Olmsted why he is wrong regarding his citing Card. Cocco’s 4 Nov 2015 letter as a basis for Omsted’s decisions in his 30 March 2016 letter to the Phoenix parishioner.

  6. Mr. Stevenburg you quote a faithful Bishop but the later does not define what the “civil effects” consist of nor state when the civil courts act “contrary to the divine law”. As the primary teacher of his diocese, shouldn’t he? If you think otherwise, would you clarify these clauses of the ’83 code. Canon 1692? Also since this canon uses the word “can” would you inform me when the bishop should decide “by decree” the “personal separation of baptised spouses”? I conclude, unless the context of his pronouncement is relevant, the Bishop’s quote does not embrace the intent of this Canon; thus, while I trust he did not intend to, he ends up misleading his flock. To clarify, Can. 1692.2 states “Where the ecclesisastical decision does not produce civil effects, or it is forseen that there will be a civil judement not contrary to the divine law, the BIshop of the diocese in which the spouses are living can, in the light of their partricular circumstances, give them permission to approach the civil courts. Canon 1692.3: “If the case is also concerned with the merely civil effects of marriage,the judge is to ….have the case brought before the civil court. Please, what are the “merely civil effects’? Univ. of Navarre commentary: “The Church has the right to judge cases arising from marriages between baptised persons, although in some cases the spouses may be allowed to resort to the civil tribunal, especially when the effects are merely civil, and therefore separable from the essence of marriage.” “…the spouses MAY be allowed….or that …”In some cases….” stronly implies that otherwise the bishop should adjudicate the separation cases correct? Frankly, I don’t know why any bishop would trust the current civil court system to adjudicate the separation of Catholic couples. Do you?

    • Avatar Philip Stevenburg says:

      Hello Mark Feliz:

      Very briefly, the faithful Bishop I quote explained his canonical-based reasons why the faithful can independently, by their own authority for certain canonically defined conditions (re-read his letter) to separate and approach the civil court system for adjudication. Since the USA doesn’t have a concordat with the Vatican to do otherwise, in view of the other relevant 1983 Codes and CCC teachings, Catholics are permitted to have their cases heard in Caesars courts. This is a function of Canon law as it’s currently worded, not whether or not a given bishop “trusts” a civil system. I would add also that I’m not aware of any USA bishop to various civil laws enacted circa 1980s that prevents husbands raping their wives. This would include baptized Catholic wives So it seems the USA bishops have acknowledged and not protested the criminal civil laws concerning rape, and by their lack of objections to these criminal civil rape laws, do endorse civil court intrusions effects the behaviors of the baptized Catholic faithful. You could say that these civil-based rape prohibition laws affirms divine law and is not contrary to it. I mean, it’s not a good thing for a Catholic husband to force conjugal rights on his wife when she would view that enforced action as rape, right?

      As regards “civil effects” I usually think of it as division of real estate and personal property. Perhaps this is a common concept to which the Bishop need not define.

      • Avatar Bai Macfarlane says:

        PHILIP WROTE:  You wrote “Since the USA doesn’t have a concordat with the Vatican to do otherwise, in view of the other relevant 1983 Codes and CCC teachings, Catholics are permitted to have their cases heard in Caesars courts.”
        BAI’S REPLY: A concordat is a treaty between the reigning government and Church authorities. A concordat would be an example of particular law  varying from the universal norm. The universal norm is that the bishop’s permission is required. Concordats have existed in which the Church agreed with the government to cede all her authority over separation to the government. FYI, I’ve seen the opposite, too, in which the government recognized the Church’s authority to decide obligations; however, the canon law is not abolished just because a government doesn’t adopt it outright.  (See collected resources https://tinyurl.com/vr5cqva, par. 19-22, on Italy and Spain and exhibit of original). ITALY: “For example, in Italy, the Church ceded its jurisdiction over cases of separation of spouses to the civil governance with a concordat; this would waive the requirement for a party to need the bishop’s permission before filing for divorce.” … SPAIN: “In another instance, a concordat could be entered between the Church and state, wherein it is established that the state recognizes the jurisdiction of the Church to manage causes of separation of spouses. Any spouse under such a concordat-situation that wanted the competent forum to manage separation cases (a.k.a. divorce), would obviously go to the Church. Under that concordat, the civil forum judge would be bound to reject a Catholic’s petition for divorce or separation. The civil judge would follow the concordat agreement signed by the country’s Foreign Minister, Minister of Foreign Affairs, and Ambassador to the Holy See. Spain had this kind of concordat from 1953 to 1979.”

        PHILIP WROTE: “‘As regards ‘civil effects’ I usually think of it as division of real estate and personal property. Perhaps this is a common concept to which the Bishop need not define.”

        BAI’S REPLY: Any effect of marraige that involves morals, religion, Catholic marriage, doctrine, and natural law is not a merely civil effect of marriage. The merely civil effects of marriage could be determined by the civil forum, but not the mixed effects. Because Catholic marriage includes the spouse’s obligation to work towards the mutual help of the other and because stealing is wrong, the Church never legitimately relegated these determinations to the government. If you were a Jewish person in Nazi Germany, you would understand that the civil forum makes determinations about property that are contrary to morals/religion/doctrine.  For more info, see blog http://marysadvocates.org/catholics_to_state_hands_off_our_marriages/ Any divorce defendant that has done nothing grave justifying separation of spouses knows that the “division of real estate and personal property” arranged in the civil forum is contrary to natural law and morals. Their children probably know it to, since the children lost the benefit of two parents supporting on common home.

  7. Avatar Philip Stevenburg says:

    Hello Bai, thanks for responding so quickly and thoroughly. You’ve given me much to think about. My reply at this time will be incomplete as I need to head out for awhile, but I didn’t want to let too much time go by. So for now, here is a very partial reply to some of your responses.

    First, as regards to you “Bai’s Question for Philip”, my answer is “generally, no”. Let me explain. I assume in both cases the deserted wife or booted-out wage-earning husband is/are generally innocent of doing things directly harming their respective spouses or families. So, in this circumstance, the reply is “generally, no”.

    However, it may be discovered that the stay at homeschooling mom ain’t so innocent. She might have had a hidden drug addiction and the husband found out about it. So he reneged because he turned out to have had diminished mental capacity (couldn’t cope with his recent discovery of his wife’s clandestine drug problem), thus that husband couldn’t fulfill the good of the spouses requirement which wasn’t discovered until later in the annulment investigation. So, in this circumstance, regrettably yes as full cupability can’t be ascribed to the deserting and mentally unfit husband.

    And, in the case of the booted wage-earning husband, the wife may have had to boot him to protect inheritance and finances should she have discovered he had squandered away their HELOC based loans on bad gambling debts or poor investments. So, in this circumstance, regrettably yes, because the wage-earning husband is putting the wife and family at risk through his financial irresponsibility.

    The problem of 1692’s “can decide” issue. So I’m not a Canon lawyer, and neither are you. I’m also not a regular lawyer, but I’ve worked with some attorneys knowledgeable in contract law. They tell me “can” and “should”, and even in some cases even “will”, are weak words for contracts. Go ahead and Google it, “can” is a very soft, mushy word, that you can bend, twist and shape it so that a Mack Truck could drive through it. “Can”, I believe, kills the obligatory force to engage in only one pre-determined way. A bishop’s can decide, or not to decide. His call. If he doesn’t decide, then others will. Thus a spouse can take unilateral decisions and suffer no legal or moral consequences by virtue of making that unilateral decision. Thus Bishop Olmsted opts out of making decisions to engage because Canon Law of the Day allows him to do just that.

    With regards to your assertion that Card Cocco’s letter lacks credibility for lack of dicastery consultations, well, Card. Cocco. may not have had to seek out those consulations. Why? Because he is simply pointing out, generally speaking, an obvious fact that “can” is an option-rich word. It can go one way or the other.

    Feel free to convey your challenge directly to Karl Keating that Keating has “no basis to say that 1983 canon 6.1 and 6.2 abrogates every article promulgated in 3 Baltimore. Karl Keating isn’t a Canon lawyer, just a regular civilian lawyer. But to the extent that Canon law phrases parallel Civil law phrases, he could provide some pointers to you.

    Similarly, feel free to directly consult with Bishop Olmsted why you believe he is wrong regarding his citing Card. Cocco’s 4 Nov 2015 letter as a basis for Olmsted’s decisions in his 30 March 2016 letter to the Phoenix parishioner.

    • Avatar Sharelle Temaat says:

      All of the replies challenging Bai’s position that the civil courts are not competent to judge parties’ obligations in cases of civil divorce, civil separation, or civil annulment ignore the obligations of THE CHURCH to save marriages, reunite families, and command the reconciliation of spouses who have gone off with someone else’s spouse.

      It is as if THE CHURCH never taught such things. Even bishops shy away from acting like St. Lupus, a Frenchman who spared no pains to save one lost sheep. It is recorded that a certain person of his diocese, Gallus, had forsaken his wife and moved on. St. Lupus could not see this soul perish, so he wrote to the bishop and asked him to contact Gallus and inform him of the seriousness of his actions. When Gallus read the letter, he was terrified and immediately set out to return to his wife. (Butler’s Lives of the Fathers, Martyrs, and Other Saints, v. III, p. 92)

      We have been led to ignore huge bodies of Church literature in order to accommodate ourselves to the world’s thinking. In the last 70 years, what priest, bishop, cardinal, or pope has made it clear to the Catholic people that, for example, the use of birth control will condemn you? We simply cannot trust what we are told today. We have to research the truth for ourselves.

      • Avatar Stephen Miller says:

        According to statistics the number of annulments granted annually in the United States soared from 338 in 1968, to 28,918 in 1974, to a peak of 63,933 in 1991. Apparently, prior to 1970, there weren’t as many mentally ill Catholics. https://www.catholicworldreport.com/2011/04/28/annulment-nation/
        Of course I am being facetious, but maybe the reason for the explosion in just a few short years was was to keep up with the explosion of no-fault divorce and has nothing to do with being mentally incompetent at the time of marriage vows.

  8. Avatar Philip Stevenburg says:

    Bai:

    Where in the 1983 Code does it expressly state that the decrees of 3rd Baltimore are operational? In view of abrogation of various 3rd Council Baltimore decrees in the ‘70s, I don’t think the present Code allows these decrees or remnants thereof to be operational because they’d conflict with (either in total or in part) to 1983 Code’s 1151, 1152, 1153 and 1692 canons and CCC’s 2383.

    6.1.1 wipes out the 1917 Code and 6.1.2 wipes out any remaining 3rd Council Baltimore decrees not abrogated by the Vatican in the ‘70s. Were there, somehow, remnants of Baltimore-derived decrees still operational in the 1983 code, I’d think Bishop Olmsted would have cited it. But because the Bishop is a bishop and a canon lawyer with a PhD in canon law, he authoritatively knows better. So he is left, primarily, with the relevant teachings of the present CCC and the 1983 Code.

    You, as a non-canon lawyer, may not like Bishop Olmsted’s explanations and decisions in his 30 March 2016 parishioner letter and say that he’s in error, but it is Bishop Olmsted’s authority, not your non-canon lawyer opinion that possesses credibility and weight.

    In a similar vein of not liking the Bishop’s decisions, I’d point out to you that not all your supporters here do favor to your ministry. In this website’s comboxes someone libelously referred to Karl Keating and Bishop Olmsted as “material heretics”. Such a calumnious charge does not help your cause.

    As regards your assertion to the case of booting out a wealth-squandering husband is not a guarantee that finances would be protected in the long run by governmental agencies wasn’t my point and I didn’t claim that. I was simply pointing out by example that emergencies generate crises that must be quickly responded to, or else greater harm happens to the family. Drastic conditions require immediate drastic actions. The affected spouse is still obligated to the best of his/her abilities to make prudent decisions thereafter.

    • Avatar Bai Macfarlane says:

      We are going around in circle and I’m not going to repeat myself.

    • Avatar Bai Macfarlane says:

      PHILIP WROTE: 6.1.2 wipes out any remaining 3rd Council Baltimore decrees not abrogated by the Vatican in the ‘70s.

      BAI’S REPLES: No it does not. 6.1.2 abrogates “other laws, whether universal or particular, which are contrary to the provisions of this Code, unless it is otherwise expressly provided in respect of particular laws.”  The burden of proof is on you. If you assert that Baltimore n. 124(a), 126 & 304 are abrogated, you must show the canons of the 1983 code that are contrary to the provisions of 3 Baltimore no’s. Furthermore, even if you did find that (which you can’t), the other part of 6.1.2. would apply and keep 3 Baltimore’s no’s in effect because the 1983 Code “expressly provides for particular law” in cases of separation of spouses.

      • Avatar Philip Stevenburg says:

        Bai:

        Well, it is really you that needs to prove that the decrees of 3rd Council Baltimore applies and is operational in the 1983 Code because you’re the one who originally claims that they do in all your prior website writings. And you know what? You can’t prove that. You can wish it, but you can’t prove it.

        You have two major reality burdens to deal. 1, you refuse to answer my question where in the 1983 Code these decrees are expressly stated and, 2, the fact these decrees are not cited by Bishop Olmsted in his parishioner letter, thereby confirming their absence in the 1983 code.

        You seem to holding onto a fantasy that your favorite decrees of 3rd Council Baltimore must be there and apply today because they’re the best source to support one of your main assertions that the local ordinaries are obligated to intervene with the faithful to approve separation and/or to have the faithful secure the bishop’s approval to approach the civil forum.

        At best you could say that local ordinaries may intervene should they choose to by virtue of the phrase “can decide” in 1692, but you’re still left with the problematic Olmsted letter. In that parishioner letter, citing the relevant canons and other writings, Bishop Olmsted says in effect he don’t have to intervene, either for approval to separate or to grant approval to approach the civil forum.

        As mentioned by Bishop Olmsted, the faithful are in effect free, independent agents to initiate separation processes and/or to approach the civil forum under their own authority.

        I am left with the impression that you’re making much of your apostolic efforts on flawed logic and wishful premises. I’m not disputing the problems arising from no-default mindsets endemic in the culture of the day, even among Catholics (sadly), but there is nothing I see canonically requiring Bishop intervention.

        Truly, the parishioner letter of Bishop Olmsted presents a big problem for your must-intervene thesis, bigger, in my opinion, than the writings from Ed Peters’ blog.

        But you don’t have to convince me. Convince instead Bishop Olmsted that he’s in error. If you could do that, you’d make your apostolate’s mission stronger.

        My last word on the matter at hand. Good Luck.

      • Sorry to split my comments… Feel free to answer both here or there.

        The more relevant document here is the 1917 Code, which also abrogated laws contrary to its own (see c. 6.1 and 6.5). Take a look, for instance, at c. 1961… “Cases concerning only civil consequences of marriage belong to the civil magistrates, as stated in Canon 1016, if they constitute the principal action in the case; if, however, civil consequences are incidental or accessory questions in the case, they may be examined and decided also by the ecclesiastical judge by his own authority.”

        The canon apparently seems to mean that civil divorces sought for their civil effects alone or at least primarily (!) are proper to civil courts. Dom Augustine sees this as excluding separation as a primary goal, but now the 1983 CIC has c. 1151 and c. 1153, which together basically mean that as long as a person is not severely threatened by his or her spouse and has no other legitimate reason to be away, he or she is bound to live with his or her spouse, unless the Ordinary decides otherwise – in which case one should probably be petitioning for nullity anyway, no? I don’t think this specific situation in c. 1153.2 is what you are on about, is it?)

        As for your claim that civil effects exclude all “morally relevant” effects, I wonder then what could possibly be included in properly civil effects? Certainly not property or inheritance, both labeled by Dom Augustine as civil effects…

        I would be interested in seeing how this could be understood as anything other than an abrogation of the law from 3rd Baltimore. It seems the retroactive lifting of excommunications by Paul VI was for those who had actually been excommunicated, not to abrogate the penalty, which was surely abrogated by the 1917 CIC, as indicated in c. 6.5. of that Code.

        Finally, notice that the current law says absolutely nothing about COUPLES being REQUIRED to approach the Ordinary before seeking a civil divorce; instead, we read that the Ordinary CAN adjudicate cases. It is as far away as possible without abandoning the thought altogether, the limited role of the Ordinary being admitted in rare cases of permission to continue separation while the cause for separation ceases notwithstanding.

  9. Avatar John Farrell says:

    Philip Stevenburg, when spouse “A” wants to exercise canonical right to separate, and spouse “B” wants to exercise canonical right to maintain the common life, what authority has jurisdiction over the guarantee of said rights – who has power to adjudicate the case?

    PS, may I call you Mark?

  10. Avatar Michael B. Ewbank, Ph.d. says:

    This is an extremely important and profound topic.

    I merely wish to thank you for your great courage in articulating and defending the truth of the matter and taking on the burden of responding to many purported contemporary ‘authorities,’ who have subjected the true and full doctrines of the Church to equivocations.

  11. Avatar Mark e Feliz says:

    Anonymous, Mr Stevenberg and others please realize that you don’t necessarily need to go to the courthouse to get a divorce if marital life is “unduly difficult” and insure provision. Why hasn’t anyone mentioned a separation instead of divorce? Canon 1153.1 states that “A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a lawful reason to leave, either by decree of the local Ordinary or, if there is danger in delay, even on his or her own authority. 1153.2 states that “In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority. Canon 1154: “When a separation of spouses has taken place, appropriate provision is always to be made for the due maintenance and upbringing of the children.” The state can then enforce what the Church has arbitrated with the couple, correct? The courts do when a wedding takes place inside a Church, correct? Furthermore, these Canons presume Church authority and whether Canon 1692 permits a bishop to not intervene (However this clause is conditional; see below), other directives make him more responsible than Bishop Olmsted seems to indicate in Mr. Stevenberg’s linked article. No concordat or specific USCCB directive is required to do what a bishop and his staff can do to save a baby’s life, when a frightened pregnant woman heads to Planned Parenthood for an abortion. He/they can and he/they should, do you agree?
    Your example, Mr. Stevenberg of spousal rape applies here too. Ought our bishops and his staff intervene when a spouse (or a child or friend) approaches him about her husband raping her. Call the police he might say! The courts don’t usually contravene divine law in court cases involving rape I assume, but the same is not true for divorce, don’t you agree? A concordat or USSB directive is not needed for a bishop to intervene in a couple’s crisis when only one spouse unnecessarily and unilaterally obtains a no-fault divorce or aborts his/her marriage. Is justice done here? Is not the secular family court apt to “contravene divine law”, specifically Cathechism(CCC) paragraphs 2384/5 and 2400 which forbids divorce except for the reasons in CCC 2383? That is why I asked you and hypothetically Bishop Olmsted to define “merely civil effects” and what “contrary to the divine law” specifically means, providing its proper interpretation. Because a bishop cannot according to 1692.2 “give them(spouses) permission to approach the civil courts” unless he knows in his heart and mind a US civil court does not contravene divine law. It is imperative for you, Bishop Olmsted and the rest of the USCCB to clearly make the case that the current US family court system does NOT contravene divine law. Our secular society has so desecrated marriage since the advent of no-fault divorce that how could any bishop trust the civil courts to not contravene divine law. The debate needs to happen now and I challenge you to present evidence to the contrary.

    • Avatar Anonymousaswell says:

      All I can say as an adult child of divorce is that I was grateful for the no-fault option in my parents’ case. The divorce was acrimonious enough without my father having to prove fault against my mother in order to divorce her. (And just to be clear, my father’s addictions were at least equally responsible for my parents’ horrible relationship as my mother’s personality disorders were). I was also grateful they divorced rather than separated because I wanted some kind of legal assurance I would never have to live under the same roof with those two together ever again. Separation would have felt too impermanent for me to feel secure.

      I’m happily married for 28 years with 6 children and was determined not to do to my children what my parents did to me, which was reproduce with somebody they were incapable of having a healthy relationship with (also, let me be very clear that I am very grateful to my parents that they brought me into this world, despite the dysfunction of it all. I am glad to exist). The core problem is that there are a lot of people out there marrying (or not marrying, as the case may be) and having children together when they are incapable (due to addiction, mental illness, personality disorders, just plain orneriness, etc.) of living with each other without creating a toxic environment for their children to grow up in. That is a problem that will not be fixed by forcing them to stay married. This is a broken world full of broken people. Many children always have and and always will suffer as a result. Heck, recently a bishop in Uganda stated that nearly ever household in his diocese is affected by domestic violence. Yikes.

      • Avatar JOHN FARRELL says:

        Dear Anonymousaswell, when 2 people freely enter Catholic marriage, what is the object of consent they grant perpetual right to?

    • Avatar Philip Stevenburg says:

      Hello again Mark Feliz:

      My responses will be short and likely not complete nor within the exact context you’ve structured your questions. That said, here we go.

      In principle, Yes, filing for divorce need not be done should separation be sufficient. That said, in view of the six month danger abatement clause, I think experience has probably been shown to wives and observed in various dioceses that violence-prone husbands can put on a good show for the bishop that he’s all better now and has reformed himself.

      Yet we all know they’re chameleons out there, and after the common and conjugal life resumes, the husband returns to his violent ways. So, divorce may be the only mechanism to keep the recurring violent husbands at bay.

      Then there’s psychological demands that wives are subjected to by non-violent husbands who pressure their wives to submit to the marital embrace under a conjugal rights by demand mindset. And some husbands are really good at it, say those knowledgeable of St Paul’s letters and Canon law. So the bible and church law keeps being thrown at them to do their bedroom duty to the point where the affected wives do really feel raped by their husbands.

      So that excessive pressure to conjugate never abates in six months, it just keeps coming back and back. In this scenario, those wives feeling raped naturally conclude that conjugal engagement is just is too difficult to maintain, and so are morally free to separate and file for divorce on their own authority. Moreover in the pressure-your-wife-near-continuously-for-the-marital-embrace scenario, yes, I do believe the USA laws on the book to prevent marital rape affirms divine law.

      My best to you..
      Phillip

      • Avatar Mark Feliz says:

        Phillip, all clergymen would you please answer the following questions regarding Canon 1692.2:
        Does it not say a Bishop is NOT to allow his separating couples to approach the civil forum/secular divorce courts if they contravene divine law? THis is a great protection the Church has instituted for centuries so why isn’t this truth placed on the urgent agenda our dioceses and USCCB?
        An Office of Conciliation I understand has been established in some dicoeses. Why is this office not a legitimate place for our troubled couples to approach first before being allowed to get their gurarnateed divorce?
        I remain despondent,
        Mark Feliz
        Colorado Springs

  12. Very well argued. Very important. The Forgetfulness of Doctrine that plagues our country also affects this matter. With dire societal consequences. Time to wake up.

  13. Has this author heard of the legal doctrine of desuetude?

  14. Avatar Micha Elyi says:

    I suppose that the homily on the recent Sunday that was The Solemnity of the Holy Family, Jesus, Mary, and Joseph could have mentioned such things as Bai MacFarlane discussed. At my parish, that Sunday was another missed opportunity to catechize the faithful.

  15. Avatar Mark Feliz says:

    To all bishops and priests of these United States:
    The bottom line with my understanding of Mrs. MacFarlane’s article and the comments herewith is:
    A bishop per Canon 1692.2 cannot allow his troubled married couples to approach the civil forum/secular courts when the civil forum contravene’s the divine law. Would someone be kind enough to demonstrate if I am in error here; or, if not, when will this protection of our families wil be placed on the agenda of the next diocesan and the USCCB meeting?
    Furthermore ought our troubled couples have the opportunity to approach An Office of Conciliation which has been opened up in some US Dioceses I understand? I pray more are established.
    Your despondent contributor,
    Mark Feliz
    Colorado Springs
    Can. 1141 A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.

    • The problem is that there is no law which directly binds the couple to approach the bishop in the first place. (The author seems to ignore all of the evidence against her strange claim that 3rd Baltimore remains in force… It is total nonsense.) What we see is that the bishop “can” allow them to approach the civil forum according to certain norms which are then spelled out. (All of this nested in the context of the canons directly regarding separation, by the way.)

      As for a civil sentence being “contrary to divine law,” what that can’t mean is that there is a possibility of an immoral judgment being rendered in general. There is always a possibility of immoral judgments. It is not clear to me what this provision might actually mean other than there being some religious effect being implied by the civil authority – for example, I don’t know, a shariah court adjudicates a divorce and will make the woman live in concubinage with some other man whom she is being forced to marry as a result. Something like that. I’m just making that case up, but this seems to be the kind of thing which would justify the bishop keeping the case for himself. However, he has to choose to involve himself in the first place (as he CAN adjudicate cases, and the implication is that couples also CAN approach him, as there are no penalties listed anywhere as far as I can tell for not doing so, on top of the issue of ignorance of the law and accumulated disregard for it, all of which was known and discussed by the drafters of the 83 CIC, which seems to indicate the mind of the Legislator is not what the author suggests it to be).

      The best explanation, in my opinion, for this admittedly strange mix of laws and procedures is the one given about concordat nations and the symbolic value. Frankly, I think they should be removed or clarified to speak directly to the context of concordat nations.

      Canon 1141 is not at stake at all in this conversation. It regards the validity of the sacrament of matrimony per se. Nobody is suggesting a civil court is competent to judge the validity of the sacrament. (However, if I’m not mistaken, this is what is principally meant by the phrase “marriage case/cause,” which gets conflated with any kind of marital dispute. See c. 1671.)

      Bowing out. Peace…

  16. Avatar Philip Stevenburg says:

    Hello once again Mr. Mark Feliz:

    This response is in regards to your queries stated in both of your January 9, 2020 letters.

    The dilemma I have in responding to your heartfelt queries is that I have to play being a canon lawyer when in fact I just a layman schmuck. But, given that the author seemingly offers layman opinions, I guess I’m in good company to offer you mine, albeit with the understanding that any certitude I might convey in my private opinion should be taken as questionable as I am not trained in Canon Law. With this qualification stated, I’ll proceed with my laymen’s response.

    I believe an alternate understanding of Can. 1141 is that the Catholic Church doesn’t dissolve marriages; it just annuls them after due process.

    That said, and for context, as I pointed out in my earlier responses, the real problem is not the writings from Ed Peters’ blog for the author, but Bishop Olmsted’s 2016 to a Phoenix parishioner (this link kindly provided by the author above). That really set the precedent for explaining why it’s permissible to separate and civilly divorce under one’s own authority without mandatorily consulting the bishop in advance. This authoritative letter is the primary obstacle that contradicts the main assertions made by the author.

    In that letter, I don’t see the Bishop citing nor using the language from 3rd Council Baltimore’s Decrees 126 nor 124. To me that confirms that somehow these decrees operate and trump the language of the applicable canons of the 1983 code is wishful thinking by the author.

    Paraphrasing from endnote #5, I see that Decree 126 incurs grave guilt to any baptized Catholic who doesn’t consult with the local bishop first before attempting to civilly secure separation from bed and table, that is, the onus is on the Catholic faithful to seek out the bishop’s permission to separate, that is, it’s mandatory for the Faithful to seek out the bishop’s permission first before separating. Also paraphrasing from endnote #5, Decree 124 states that automatic excommunication is the penalty imposable by the local bishop should a Catholic fail to pursue bishops approval to civilly secure a divorce and attempt to remarry. Thus it is mandatory by the baptized faithful to seek out the bishop’s approval to separate and civilly divorce, and by extension of proactively getting involved beforehand with the bishop on the separation and divorce matters, necessitates that the bishop become automatically involved or mandatorily required to engage with the Catholic who has sought that permission.

    For reasons cited by Bishop Olmsted, “Canon 1692 is not required of couples in order for them to remain in good standing with the Catholic Church” because Bishop Olmsted “never interpreted as something required of the faithful either from a moral or a legal point [of] view.”

    Bishop Olmsted doesn’t explain any further his reasons for his decisions beyond the reasoning already stated by him in his letter to the parishioner. My layman’s private opinion is that decrees 124 and 126 are both canonically obsolete and that the language in them conflicts with the more flexible “can decide” of Canon 1692 because “can decide” doesn’t mean “must decide” or “obligated to decide”, etc. That is, the mandatory requirement of bishop involvement expressed or inherent in the language of decrees 124 and 126 is trumped by the non-mandatory language of 1692’s “can decide” in the 1983 Code, and so, apparently, does not conflict with Divine Law.

    Regards to you.

  17. I would like to thank Bai for her support and defense for marriage and the family. Canon law should be used to protect the faith and the rights of the faithful, and certainly not contradict the words of our Lord or clear papal teaching. St. Matthew records (chap 19) for us the interaction between Our Lord and the religious lawyers of his day. The Pharisees tried to manipulate Our Lord to accept divorce. I am sure the Pharisees were speaking of cases similar to ones we have today. Our Lord clearly replied “what God has joined, no man may sever”. Who believes that Jesus was not aware of our marriage difficulties?
    CCC Paragraph 2384 and 2385 calls “divorce a grave offense against the natural law. It claims to break the contract to which the spouses freely consented, to live with each other till death….Contracting a new union, .., adds to the gravity of the rupture”. (Notice it is not saying it is ok to divorce as long as one does not remarry without an annulment).
    Divorce is immoral because it introduces disorder into the family and society. This disorder brings grave harm to the deserted spouse, to children traumatized by the separation of their parents and often torn between them, and because of its contagious effect which makes it truly a plague on society.
    Throughout the ages the Church has strongly upheld marriage and condemned divorce. In paragraph 41 of his encyclical Arcanum, Pope Leo XIII reminds the bishops and faithful that Holy mother Church never ceases to endeavor to bring about reconciliation of spouses, and never despairs in doing so. How is encouraging the faithful to go to the divorce courts meeting this commitment?
    50 years later (1930), Pope Pius XI reminded the faithful that the above mentioned teaching is still in effect. He also reminds us of the following:
    God is the author of the perpetual stability of the marriage bond, its unity and firmness.
    If one has contracted matrimony, he is thereby subject to its divinely made laws and essential properties.
    Paragraph 37 discusses the benefits that which flow from indissolubility…both husband and wife possess a positive guarantee of the endurance of this stability. Who in the age of Catholic approved divorce has this security?
    Paragraph 78 addresses so called compatibility differences as reasons to dissolve a marriage. The Pope points out that it is the enemies of marriage who substitute for true and solid love a vague compatibility of temperament. What else is this than to build a house on sand?
    Concerning bishops deferring to the state to address the “civil” effects. CCC 2383 mentions the care of the children and inheritance. It says nothing having the state garnish ~40 % of my take home pay to give to the wife who broke her marriage vows. This enables marriage break-up. In my case, I am still supporting, two girls still in college. On top of it, ½ my 401K and pension were taken from me. Is this just? Bishops who require a civil divorce prior to getting involved to study the marriage are either naïve, fools, or diabolical.
    In Pope Benedict’s recent reflection on the sex abuse crisis he wrote an exegesis on Mark 9:42 (millstone passage). He talks about the common believers who can be confounded in their faith by the intellectual arrogance of those who think they are clever. How many “kind, pastoral” priests have been misled on the indissolvability of matrimony by “clever chancery officials” or modern day Tetzel’s promoting the false hope that one can discard their current spouse and get a new one with the Church’s blessing. Where is our John the Baptist’s and John Fishers with the courage to condemn divorce?
    As stated earlier, Pope Leo XIII said the Church never ceases to endeavor to bring about reconciliation. Throwing the families before Herod is despicable. My wife’s no-fault divorce took 12 months and caused even more acrimony because I could not consent to the grounds she filed under. She became angrier and angrier at not quickly getting what she wanted.

  18. All PRIESTS, TRIBUNALISTS, LAY COUNSELORS, SEMINARY PROFS, & BISHOPS take great heed to the words of Tom more & Bai MacFarlane, abandoned Catholic spouses, who simply point out the teaching of Christ and His Church regarding marital indissolubility. I estimate that about 1/4 of our parishes are ridden with abandoned spouses because the overwhelming number of divorces amongst US Catholics are UNILATERAL…Do you really care about the spouse left behind?? How are you prepared to minister effectively to these shocked, bewildered and often deeply hurting parishioners? Allowing or even pushing a struggling couple to the secular courts is mystifyingly ignorant and/or without compassion. How you can ignore how these courts contravene divine law is unbelievable! (Can. 1692.2) It’s time to stop ENABLING the adulterer and/or the abandoner in your complicity in whisking away the separating couple to the secular wolves!
    I hope this is my Final comment.. I have suffered such a gnawing ache & great disappointment in my “hard hearted” church leaders for 22 years now after my devoted Catholic spouse got the courts to set herself free from the shackles of a lifelong marriage without cause and failed twice in garnering a decree of nullity.
    Contact me at elderfeliz1@gmail.com; if you dare, if you really care.— Mark Feliz

Trackbacks

  1. […] Courtney Mares at NC Register Family, Memory, Power – Rod Dreher at The American Conservative No-Fault Divorce, Standing for Justice: Parish Priest & Divorce – Bai MacFarlane at Homiletic & Pastoral Review St. John the Evangelist, Poet of the Word […]

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