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Defending Families Against Forced No-Fault Divorce
Canon law Society of America (CLSA) dissents from Authoritative Church teaching regarding Separation, Divorce and Remarriage.
Marie Christine Macfarlane ©2004
Thus says the Lord; "I hate divorce." (Mal. 2:16)

If God hates divorce, how can supposedly good Catholics get divorced?  For divorced Catholics, church tribunals can grant annulments if they determine that the bride and groom were never actually married.  Since marriage consent makes a marriage, there are some conditions that would make consent invalid.  For example, a totally insane man could say the vows, but he wouldn’t be validly consenting to anything.  One must be able to consent to the essential obligations of marriage.   If a validly married person divorces for no just cause - that is, his or her spouse is not guilty of extreme cruelty or gross neglect of duty -- he or she commits a grave immoral act.  If one remarries, he or she is committing adultery.  These people made a vow, and then they broke it.  Even though children suffer terribly in divorce and abandoned spouses' souls and the children’s souls are basically ripped in half, I don’t see the Catholic Church in America defending marriage.  Instead I see too many church representatives justifying abandonment and adultery, by teaching everyone that the couple’s marriage was never really valid in the first place, and that divorce is justified if one is unhappy.  Why is this happening?

John Paul II, and recently, Joaquin Llobel, a member of the tribunal for the Apostolic Signatura have chastised tribunals for using failed marriages as the evidence that a true Christian marriage never existed and for granting annulments on questionable grounds (CWNews.com). If one is told his or her Christian marriage never existed, divorce becomes only a correction for a mistaken union.

The Canon Law Society of America (CLSA), an independent 501(c)(3) organization controlled by its members, is a primary source for information regarding annulments and canon law.   However, many of their publications directly contradict the teachings from the Vatican. In 1970, CLSA published Annulments, by Fr. Lawrence Wrenn. This book has been renamed The Invalid Marriage.  Wrenn explains that judges have the responsibility to interpret the law, and if all judges hand down like decisions of over a period of thirty years [have a custom], their interpretation becomes tantamount to law (canon 26) (2).  He didn’t mention canon 24 which states, no custom contrary to divine law can acquire the force of law.  According to Wrenn, developments in mental health sciences, and insights into psychic disorders have provided new insights into people’s ability to consent to marriage (4). In laymen’s terms this means psychologists have discovered that rather than breaking promises, people now get to be diagnosed as having been incapable of ever making the promise, therefore, there is no culpability for the person who forces a no-fault divorce on an unwilling spouse and destroys his or her own family.

The current code of canon law was promulgated in 1983.  Two years earlier, Thomas Green, a member of the CLSA’s editorial board critiqued a draft section of canon law in which he expressed his dissatisfaction with the limits of the bishop’s ability to delegate his legislative authority.  He hoped the bishops would be able to delegate such lawmaking power to a diocesan pastoral counsel and he asked for legislative renewal at all levels of the Church.  Green believed this was indispensable if we are to apply Vatican II’s call to the church to reform as it reads the signs of the times.  (51, 52)

CLSA published a book about Canon Law for Parish Ministers in 1982. One chapter, "Freedom, Authority and Community," by Rev. John Murray, S.J., repeatedly emphasized the need for dialogue, and equality within the community and attributed these revolutionary ideas to Vatican II. He suggested that obeying authority is problematic because it does not satisfy the exigencies of the dignity of the person and does not exhaust the responsibilities of the person to participate fully and contribute actively to community (4).   At CLSA’s 1992 annual convention, William D’Antonio explained how laity who reject the Pope’s traditional teachings, and the autocratic rule that undergirds them, are affirming the liberating principles of Vatican II, especially those enunciated in the Constitution on the Church in the Modern World. (1) D’Antonio supported those who engage in pre- or non-marital sex, use contraceptives, support friends who divorce and remarry, and vote for pro-choice candidates (14).   However, Vatican II doesn’t support Murray's position; "The laity should, as all Christians, promptly accept in Christian obedience decisions of their spiritual shepherds, since they are representatives of Christ as well as teachers and rulers in the Church" (Lumen Gentium, no. 37, par. 2).

When the 1983 New Code of Canon Law was published, Pope John Paul II stated, "the code must be regarded as the essential instrument for the preservation of right order" (Caparros, 7). Rev. Edward M. Egan, who was one of the six canonists who reviewed the new Code of Canon Law with the Pope before its promulgation, wrote an article explaining the limited circumstances in which a lack of discretion or psychological problems would make one’s marriage invalid.   He warned against using personality disorders as a liberal excuse for granting annulments (Nullity, 25). He cautioned against overstating indications and manufacturing proofs (ibid. 37).  He described the minor psychological conditions that would not invalidate someone marriage consent (ibid. 47) and he reiterated the three essential elements to which one consents when they marry: exclusivity, perpetuity, and openness to children (ibid. 52).  He warned against adding a fourth element: an interpersonal relationship, in which the spouses grow, are enriched, mutually fulfilled, and happy (ibid. 53, 54; Permanence 227). While ignoring Egan’s instructions, US tribunals justify tens of thousands of annulments based on this homemade psychological reason. CLSA taught, if the couple wasn't happily married, they likely were incapable of consenting to the fourth element -- that is, a successful interpersonal relationship. If they had been capable of consenting to be happily married, their marriage would never have fallen apart (CLSA, The Code of Canon Law: A Text and Commentary 777; Burke 111; Wrenn, Refining the Essence of Marriage 16).  A New Commentary on the Code was published by CLSA in 2000.  Editor, James P. Beal, who is currently a professor of Canon Law at Catholic University of America, describes postconciliar (after Vatican II) jurisprudence which recognizes this forth element as required for valid consent and he comfortably describes how most canon law commentators don’t accept the Pope’s interpretation (1302).

Pope John Paul II, in his January 29, 2004 address to the tribunal of the Roman Rota, had another explanation.  He said misuse of freedom and sin can cause marital breakdown (sec. 5).

In CLSA’s extensive commentary of canon law, published in 1985, two canons regarding divorce are practically ignored.  Canon 1153 states that a couple needs the local ordinary’s authorization to live separate (unless there is an emergency in delay).  CLSA’s annotations explain that one can separate if there are serious problems "that are not easy to resolve." The notes also say, "marital discord may not always result from morally culpable acts" (821).  CLSA's notes for canon 1154 state, "When a separation occurs the spouses usually resort to civil action leading to a legal separation."  Another publisher’s annotations, complimented by the President of the Pontifical Council for Legislative Texts in the Roman Curia, states the opposite (Odegaard). The Midwest Theological Forum (MTW)’s annotations state, "Blameless, unhappy situations not only fail to constitute reason for suspension of the right and obligation to common life in its sense of solidarity and of sharing, but they also represent cases in which one of the ends of marriage, mutual assistance, must manifest itself in all its width and depth" (Capparros 897).

According to canon 1692, the couple isn’t supposed to approach the civil court without first obtaining the authorization of the local ordinary to be separated and get divorced. The bishop isn’t supposed to provide that authorization unless he is ensured no court orders will contradict divine law.  CLSA’s 1985 annotations include nothing about needing the bishop's authorization to approach the civil court. In contrast, they emphasized that some canonists wanted this section suppressed because everyone is already ignoring any limitations on leaving one’s spouse (CLSA The Code p1016).   However MTF’s annotations on canon Law, explain this requirement clearly.  "Since divorce laws have proliferated in many countries, the need to request the diocesan bishop's authorization is a necessary precaution, which prevents the fostering of trials whose judgments violate precepts of divine law, to the detriment of the spouses and with the risk of scandal to others." (Caparros 1324)

CLSA remains silent, to the detriment of the perpetrators of no-fault divorce, whose souls are in danger because of their choice to commit a grave immoral act which contradicts natural law (CCC 2384-2386). CLSA remains silent to the detriment of unjustly abandoned spouses and innocent children whose homes are being destroyed for no just reason. However, CLSA has worked closely with another organization, North American Conference of Separated and Divorced Catholics (NACSDC) (Jenks 41), and they offer another solution; move on with your life, get your annulment, and get remarried.   NACSDC’s catalogue recommends sources which explain how most don't care what the Vatican does, or the pope, or the bishop because the pastor is more significant than the pope; you can dissent and remain a faithful Catholic; premarital sex, abortion, birth control and practicing homosexuality are acceptable (Bausch 67, 65, 31, 64, 91); The bishop of Rome is not THE Vicar of Christ; he is A vicar of Christ and so are you; the theologians and the canonists are turning to the married to find out what marriage is - and therefore what the sacrament is; all alike share in the Magisterium, or the teaching authority of the Church (Fehren 75-76 90).  In a recommended prayer book for separated spouses, readers are advised to pray, "My sinfulness is not in leaving my marriage, for sometimes the kindness act of all is in letting go of another.  Let my Church see this."  (Bedard 47)

With NACSDC promoting these understandings of Catholicism, its no surprise that American Catholics accept divorces as part of life.  With Fr. Wrenn teaching that psychological advancements help tribunals find grounds for annulments, it is no surprise that Catholic children suffer as much from divorce as everyone else. Rev. John Beal thanks Fr. Wrenn for his new application of canon law, which transformed marriage tribunals such that three quarters of a million marriages could be declared null (Beal 5).  He’s very pleased that tribunals free people to remarry in the church; he makes it sound so heroic. Another editor for CLSA’s commentaries on Canon law, Rev. James A. Coriden, states that "it’s time for the church to fashion a broader response to the culture of divorce.  A new and more flexible pastoral strategy seems to be called for in order to meet this massive pastoral challenge.  The awareness of historical diversity should free us to fashion a more comprehensive and targeted pastoral plan for present-day Catholics who experience marriage failure" (46).  Any defendant in a no-fault divorce knows marriages don’t fail; someone breaks them.  Where are the tribunals which apply canon 1153 and 1692, freeing innocent abandoned spouses and children from no-fault divorce, and preserving children’s natural right to an intact home with their natural parents?

As long as CLSA and NACSDC are the primary pastors to couples with marital trouble, the Catholics in America will never receive the benefits God promises to those who trust and obey him when He said, "I hate divorce" (Mal 2:16). As I meet faithful spouses who have been abandoned by their partner, I don’t hear them saying, "Oh, Yea! I need permission to find a new life partner."  I hear them saying, "I am very concerned about my spouse.  My children are being traumatized.  I need the community to show my wayward spouse that there is a better way than divorce.  With God’s grace and expert help we can learn what was causing us the pain and be healed.    God promises us the grace to be faithful to our sacramental vows.  I will love, and remain loyal to my lost spouse, as God loved the His peoples, whether they were faithful or not. With God, all things are possible."
 
 
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Bibliography

Bausch, William J. While You Were Gone: A Handbook for Returning Catholics and Those Thinking About It. Mystic, CT: Twenty-Third Publications, 1995.

Beal, John P. "Acts from Previous Cases as a neglected Source of Evidence." Easton 5-28.

Bedard, Wells and Rev. William Rabior. Prayers for Catholics Experiencing Divorce. Liguori, MO: Liguori, 1993.

Burke, Raymond L. "Canon 1095: Canonical Doctrine and Jurisprudence: Part I: Canon 1095, 1° and 2°." Canon Law Society of America Proceedings of the Fourty-Eighth Annual Convention 94-107 (On pg 110-111, Burke wrote, "Also, it seems to be generally accepted within the Rota that the "good of the spouses", whatever the description given to it, such as "comunity of conjugal life", is among the essential obligations of marriage.  It is true even thoughthere have been few attempts actually to define it or list components.  However, theere ainly seems to have been a development of this idea since it first appeared in the Rotal jurisprudence.")

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