Analysis of Judicial Vicar's writing

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Message from a US Judicial Vicar to be analyzed in light of Vatican Teaching and No-Fault Divorce

Bai Macfarlane's Analysis in light of Vatican Teaching and No-Fault Divorce

You are correct in your observation that the canonical process for the separation of spouses is "ignored in the US for the most part."

One reason for this is that the ecclesiastical process has no civil effects.

That is: any decree of the bishop or decision by the tribunal would be meaningless and unenforceable without the voluntary cooperation of the parties.

This is of crucial importance with respect to spousal support, child support and visitation rights and obligations. This is part of the reason why the separation process is not utilized.

This is also the standard of canon law: "If a case concerns only the merely civil effects of marriage, the judge ... is to try to defer the case to the civil forum from the start" (Canon 1692 n.3).

The separation of spouses in the civil forum and the civil divorce process do not touch upon the "substance" of marriage, i.e., the unity and indissolubility of the bond of marriage. These civil processes (in the mind of the church) only concern the civil effects of marriage. And the church defers to the civil courts in these matters.

The procedure related to causes of separation is regulated in cc. 1692-1696. Barring anything lawfully provided by particular law, personal separation of baptized spouses can be decided by decree of the diocesan bishop (administrative channel) or by judgment by a judge (judicial channel). The administrative channel is pursued before the diocesan bishop, who will pronounce his decision by decree, in which he must decide whether the separation requested is according to law, and he must find regarding the education and support of the children (cf. c. 1154). This decree may be appealed, pursuant to cc. 1732-1739. The judicial channel must be pursued before the competent judge or tribunal, pursuant to the provisions of c. 1673, referred to in c. 1694, who will hear the cause according to the procedure of an oral or ordinary contentious process (cf. 1693 ¤ 1). (See Canon 1151)

It is not is the hands of the spouse nor in the power of human judges to suspend an obligation of natural law which has been imposed not only for favorable times, but also for the difficult and painful circumstances of life, when help is most needed from the person who is of the same flesh as the one suffering the misfortune ("[...] to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health [...]" Rite of Marriage 25). (From Annotations on Canon Law 1153)

Furstenburg, Frank, and Andrew Chernin. Divided Families: What Happens to Children When Parents Part. Cambridge, Mass.: Harvard University Press, 1991, page 22. Frank Furstenberg, Professor of Sociology at the University of Pennsylvania, and Andrew Cherlin, Professor of Public Policy in the Department of Sociology at John Hopkins University.

McManus, Michael J. Marriage Savers. Grand Rapids, MI: Zondervan. 1995. page 123.

Parejko, Judith, Stolen Vows, The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry. Parejko, © 2002. p.92-95.

Baskerville, Stephen PhD. Personal Interview. Work phone 540-338-8737. Author of Taken into Custody; the War against Fatherhood, Marriage and the Family, Cumberland House © 2007. Baskerville is nationally known for his work uncovering no-fault divorce practices. He's taught Political Science at Howard University Press and is now teaching Government at Patrick Henry College. Recent Radio Interview

Your obedience to the Church is not a matter of obtaining permission to seek a separation. Rather, it is a matter of doing what can reasonably be done to preserve the marriage.

This would be such things as:

1. Dialogue with one's spouse concerning marital difficulties
2. Seeking assistance through counseling for oneself and at least inviting the spouse to enter a counseling program
3. If a problem such as alcohol or drug abuse or other dangerous and addictive behavior is involved (e.g., immoral use of the internet), seeking special programs for assistance in these areas.
4. Intervention of others close to the couple to urge one or both parties to seek assistance.
5. Pastoral guidance
6. The Retrouvaille program

These are things that come immediately to mind. There probably are more avenues of support for a troubled marriage. And it is possible that you have contacted us only after you have already done what you could, but to no avail.

If you have done what you can do to seek peace and healing in your marriage, and after all your efforts conjugal life remains "unduly difficult," you need to weigh this matter in conscience, perhaps with assistance from a counselor or pastor, to decide whether a legal separation must be the next step. Neither the bishop nor the tribunal is in a position to give permission for or to adjudicate a separation for the reasons stated above.

3. Grave danger in common conjugal life (c. 1153 § 1)

According to c. 1153 § 1, there is a legitimate cause for separation when a spouse makes common life too difficult. Making the common life unduly difficult is a generic expression that indicates a series of varied circumstances that can make conjugal cohabitation very difficult or impossible. With this expression, the legislator makes way for all those manifestations of cruelty-verbal or physical abuse, harshness, and lack of consideration towards another-that produce a common life that is practically impossible.

Physical cruelty includes violent conduct and physical aggression against one's spouse or one's material assets, cruel or merciless treatment through beating, etc. Moral cruelty involves offensive conduct, in word, act, or omission, against the dignity, honor, and feelings of the person, through slander, insults, disregard.  For separation due to physical or moral cruelty to be lawful, the following conditions are necessary:
    - it must be grave, such that it makes common life dangerous for the spouse or children;
    - it must be repeated, because if it were merely occasional, it would not create the fear for future common life, which justifies the separation;
    - and separation must constitute the only means of avoiding the danger involved in common life.

Faithful Catholics have observed all sorts of moral abominations occur in the name of "following one's conscience." Following one's conscience can lead one to commit grave immoral offenses against God and man if one's conscience is not properly formed.

According to Vatican II teachings, "discernment in matters of faith is aroused and sustained by the Spirit of truth. It is exercised under the guidance of the sacred teaching authority, in faithful and respectful obedience to which the people of God accepts that which is not just the word of men but truly the word of God" (Lumen Gentium, no. 12, paragraph 2). Catholics are not free to ignore canon law and authoritative teaching regarding separation of spouses and divorce.

Separation of spouses and divorce are not private matters. The Catechism teaches that "Divorce is immoral also because it introduces disorder into the family and into 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" (CCC 2385).

To protect the rest of society and families' from this plague, the church has established a procedure which specifies that no spouse is to approach the civil court without obtaining permission from the bishop, and no spouse is to remain separated from one's spouse without obtaining ecclesiastic intervention either (can. " In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority," (can. 1153 §2). With no-fault divorce, no morally licit reason for separation ever had to exist in the first place. The lawyers and judges will forcibly break every family in two whenever any spouse asks for it, making no distinction between the faithful, capable spouse and the one who of his own free will chose to destroy his marriage.


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