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Press Release — August 23, 2004
-- submitted by Judy Parejko

Mr. Lynch has asked the court to dismiss all temporary orders, arguing that his client's husband, William (Bud) Macfarlane, Jr., violated the  couple's "prenuptial" by moving out of the house and filing for divorce without first contacting the bishop.  A judge, operating under the Ohio No-Fault code, has already ordered the sale of the family home as well as a change in schooling for two of the couple's four children.

According to the argument presented by Mr. Lynch, the couple willingly agreed to abide by the Church's "rules" during their Pre-Cana marriage
preparation and also prior to exchanging vows on their wedding day.  He supports his argument with a 4-page affidavit, written by Ben Nguyen, who is a canon lawyer and serves as Chancellor of the Diocese of La Crosse, Wis.  The affidavit outlines the nature of the "de facto" prenuptial agreement to which all Catholics consent prior to marrying in the Catholic Church.
 
Previous case law shows that the prenuptial agreements of Orthodox Jews have been upheld by civil authorities.  Mr. Lynch asks the court to uphold his client's prenuptial agreement in the same way.
 
Judge Cheryl Karner, who is hearing the case, and is herself Jewish, does not appear to understand the significance of the Macfarlane's Catholic prenuptial, evidenced by the following comments she made at a prior hearing:

". . .your religious conviction and the contract you entered into in front of your priest, has priority, I can understand that from a religious point of view, but it doesn't from a secular point of view and doesn't from a legal point of view."

Typically, the Catholic Church does not get involved in divorce until after the divorce has been granted.  At that time, when one of the parties petitions for an annulment in order to re-marry within the Church, the case for annulment is heard by the Church's tribunal.  But in The Code of Canon Law, canon 1153 requires that a spouse must first demonstrate to the bishop or the tribunal that there's an acceptable reason for separating from the other spouse, unless there is "danger in delay".  In addition, canon 1692 requires that a spouse must receive authorization to "approach the civil forum."  Mr. Macfarlane did not first consult with Cleveland's Bishop Pilla before moving out of the family home and subsequently filing for divorce.  Ohio courts grant a no-fault divorce to the petitioner after one year of separation, no matter what the circumstances are.

Stephen Safranek, a professor of Law at the Ave Maria School of Law in Ann Arbor, Michigan, maintains that the contract they made placing jurisdiction in the courts of the Catholic Church should be upheld, in the same way that other arbitration agreements are upheld.

When the case was first filed, Mrs. Macfarlane had asked the judge to send both herself and her husband to conciliation services, so they might resolve their conflict, but Judge Karner would not do so unless both parties were willing to attend, and Mr. Macfarlane refused.

Mrs. Macfarlane then learned that Cuyahoga County had never even instituted any conciliation programs, as are required in Ohio Revised Code 3117, which was enacted to ameliorate the affects of the "no-challenge" system of no-fault divorce, where the petitioner is always granted his/her request for a divorce.  She suspects that this Code has not been properly implemented in any Ohio county, which means there is nothing offered to the spouse who wants a chance at preserving his/her intact family when facing the threat of divorce. 
 
The change to "no-fault" divorce was originally promoted in the late '60's by lawyers as a way of actually saving marriages --- by eliminating the bitter acrimony of the "fault"-based divorce system where one party had to accuse the other of wrongdoing.  In addition, discussion about changing the law included the idea that "court-ordered counseling" would be part of this new system. 
 
The sinister side to no-fault divorce is that most people believe that it means "by mutual consent", whereas up to 80% of divorces are "coerced" by judges who feel pressured to keep the divorce "conveyor" belt rolling.   Reluctant spouses are forced to sign "agreements" about property and children at the threat of being jailed.  Mrs. Macfarlane has documented her own experience in a 100-page book, "and Justice for None" which she quickly wrote to convey how diabolical the system treats people like her.  
 
The Macfarlane case is significant, since there are no safeguards left in the civil system for marriages facing divorce.  The Catholic Church, which views marriage as a Sacrament, can use the laws that are "on the books" in The Code of Canon Law to help families avoid the devastation of divorce.  Other churches may be challenged by this Catholic example and institute their own similar policies to help families.