Apostolic Tribunal of the Roman Rota Case:
Does the Catholic Church
in the United States really teach that no-fault divorce is wrong?
As is typical in the local civil divorce routine, to initiate his case, my husband accused me of extreme cruelty and gross neglect of duty. It’s noteworthy that the system is set up in a way to permit abuse, i.e. as the defendant, I’d never get a trial in which I’d have a chance to challenge the allegations and prove that I was innocent of the charges. In fact, local judges deliberately postpone trials, and after couples have been separated for one year, the accusations of extreme cruelty and gross neglect are ignored because living apart becomes the new, principal reason to grant divorce (1). With Ohio’s no-fault divorce process, the courts don’t care whether I was an innocent, abandoned, dedicated wife and mother, or a crazed husband abuser.
Having four minor children, I‘ve learned the civil divorce system hurts our family even more than my abandoning husband had. Our children don’t want to be taken from their mother and their home routine, for long periods of time, just to visit their father who refuses to be in my presence. Psychologists have demonstrated that divorce is horrible for children (2); it is destructive to be hauled back and forth on a rigid schedule (3). I believe our children are also being given serious scandal by their own father who seems to be living in grave manifest sin by seeking his no-fault divorce(4). The civil courts warn me that if I let our children believe their father has done anything wrong, this would be used against me. They can take our children away from me because they’ll find me guilty of “alienating the children against their father” (5). The Ohio no-fault divorce routine is designed to protect the right of any spouse to leave his marriage for any and no reason; this judicial system doesn’t want to be second-guessed.
Two months after my husband left, I was advised that if I wanted any financial support I had to sign a shared parenting agreement to have our children removed from home much of the time. Later, I learned from a state legislator that I was not obligated to sign those papers (6). Even though the divorce industry adamantly disagrees with natural law regarding the meaning of marriage, family and parenting, the civil judge has the power to eventually order whatever she feels is in the best interest of our children. I never agreed to have my parenting authority given to a government psychologist and even though we’ve always been a homeschooling family, I’ve been threatened to have my children permanently taken from me if I don’t quit homeschooling. I’ve been coerced into signing agreements to send our sons to public schools if they don't’ attend a particular Catholic grade school the court psychologist recommended. I believe I am being punished, by having our children taken from me, because I refuse to agree the court routine is providing justice to families. Before we’ve even had a full hearing, the judge has ordered our children to live with my husband because of my earlier signatures obtained by coercion and duress, and the judge won’t even let me get our youngest son out of the daycare center. I’ve been advised that bullying tactics have been used in divorce chambers for decades.
Fifty years ago, the civil courts could determine my husband was the adverse party who abandoned his wife, and he’d be ordered to financially support me and our children, possibly for my entire life. Since no-fault divorce was accepted in the early 70’s, Ohio courts no longer recognize the distinction between the dedicated spouse and one who unjustly abandons his marriage and destroys his family, but God’s law still does. The president of the Pontifical Council for Legislative Texts in the Roman Curia, recommends an indisputable resource for studying canon law (7), which recognizes malicious abandonment. Within the system of church law, jurisprudence and doctrine exist with the “intent of specifically protecting compliance with every conjugal and family duty, penalizing their omission” (8). I was hoping my Bishop and Tribunal would grasp the opportunity to exercise their authority, and thereby protect my family.
In order to determine if my husband’s civil divorce was acceptable according to Divine law, I submitted a petition to the Diocese of Cleveland Tribunal asking for an investigation regarding canon 1153. “§1. 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 a decree of the local Ordinary or, if there is danger in delay, even on his or her own authority. §2. In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority.” Essentially, my husband shall not, on his own authority, separate from me, unless there is an immediate spiritual or physical danger. Otherwise, he must have authorization from our bishop which is only available in limited circumstances.
Since my husband professes to be an obedient Catholic, he might choose to repair our damaged marriage and family, if he was authoritatively advised by the Catholic Church that he is doing something unacceptable. Presently, he is choosing to overlook his promise to be married as the Catholic Church understands marriage, which includes living with his wife. It has been nearly impossible to find an appropriate church authority willing to tell my husband if he’s doing something wrong by divorcing me.
The Cleveland diocese tribunal refused to investigate my case. According to the three-judge decree, I had no basis in law for my request because my husband (the one who left the family) had to ask for the investigation (9). My canon law advocate disagrees so I appealed to the next higher court, the Archdiocese of Cincinnati.
My petition was rejected by Cincinnati too (10). The panel of three judges determined on the sole basis of the petition, therefore without any investigation and absent any concrete elements of proof, that my husband evidently has left me because he was in immediate danger if he stayed home. The judges apparently believed my husband’s attorney’s words in which I was accused of extreme cruelty. The decision begs the question: Do they know that in Ohio, dedicated loyal spouses are falsely accused of extreme cruelty in all no-fault divorce cases everyday? Can we be so naive to think the tribunal judges mistakenly assume the civil courts verify that these accusations are true.
The Cincinnati tribunal misinterpreted several of the civil divorce documents. They assumed I believed my husband and I were incompatible, though that statement was only put on court record because my attorney recommended it, and was later dismissed. They thought we had worked with a counselor, but in fact, the court refused to order us to see a counselor although I had requested it. The tribunal judges stated that the “tenor of the documents exchanged between the parties exhibits a level of animosity,” but the language on my preliminary court documents were composed by a divorce attorney. Without speaking to me, or any witnesses, the tribunal of Cincinnati stated, “Mr. MacFarlane has been urged to do what the law itself requires if the reasons for a separation cease.” My concern is that acceptable reasons never existed in the first place, and to the detriment of my family and in total disregard of my principles founded in the Catholic Faith and Magisterium, the “no-fault” system proceeded on a facade.
Ohio’s Ecclesiastical Tribunals routinely only investigate annulment cases. In my case, it is legitimate to wonder if the Tribunal Judges were already surmising that my marriage was invalid and should be declared null, because throughout Cincinnati's written decision, they referred to me as “Ms.” instead of “Mrs.” If my husband is still a loyal Catholic, he could be justifying his divorce by assuming we have an invalid marriage. Based on the available literature (11), virtually any unhappy spouse in the United States could conclude his or her marriage is invalid, even though magisterial authorities disagree with U.S. tribunals’ methods (12).
According to the Catechism, divorce is immoral and a gross offense against nature and only acceptable under certain circumstances (CCC 2382-2386). However, tribunals in the United States require an unhappy spouse to obtain a civil divorce before a petition for an annulment investigation will be accepted (13). Canon law, on the other hand, states that all marriage are assumed to be valid until proven otherwise (canon 1060). If a validly married person seeks a no-fault divorce, he is likely committing a grave sin. According to canon law, a husband or wife needs a bishop’s authorization to permanently separated from one’s spouse or to approach a civil divorce court (canon 1153, 1692). It is possible that both my husband and I are seeking a determination from the church tribunals to clarify our marital situation, but because the tribunals are handling cases the opposite way that canon law intends, my children and I are suffering terribly and our family is paying tens of thousands of dollars to the divorce industry.
My Rotal Advocate disagrees with the Ohio tribunals and my case has been taken to the next higher court, the Apostolic Tribunal of the Roman Rota. If the Roman Rota agrees with us, the church will eventually issue a decree and determine whether or not my husband has an acceptable reason to leave me. As Catholics married in the church, we have agreed to, and are obligated to be under the authority of the Code of Canon Law and my new civil attorney even advised the civil court of the our de facto prenuptial agreement to follow the code (14). If the Roman Rota determines that our family has a right to an investigation, and a decree is issued stating my husband does not have authorization to leave me and obtain a typical no-fault divorce, he could be restrained from using the civil courts to force our children to be removed from me and their home routine. He could be required to pay me spousal support for a long time, because I have small children and can’t get remarried. Or, my husband may decide to restore our innocent children’s intact home. This Roman Rota’s decision can provide guidance to lower tribunals throughout the entire United States. It can establish principles bishops might use for new regional church legislation protecting Sacramental Marriages(15).
If you would like the Church to become more active in defending children and dedicated spouses from no-fault divorce, please sign the petition to the bishops at http://www.defendusfromdivorce.com
Marie Macfarlane M.I.
December 8th, 2004
150th anniversary of the proclamation of the dogma of the Immaculate Conception
(1) Zoller, John. Ohio domestic relations attorney. Phone conversation. Dec. 15, 2003.
(2) Fagan, Patrick F. and Rector, Robert. The Effects fo Divorce on America. Washington DC: The Heritage Foundation, 2000.
(3) Marquardt, Elizabeth M. The Prophetic Task of the Churches on Behalf of Children of Divorce. <http://divinity.uchicago.edu/research/criterion/winter2001/prophetic_task1.html>
(4) Scandal is definded in the Catechism. (Par. 2284) “Scandal is an attitude or behavior which leads another to do evil. Theperson who gives scandal becomes his neighbor's tempter. He damages virtue and integrity; he may even draw his brother into spiritual death. Scandal is a grave offense if by deed or omission another is deliberately led into a grave offense. 2285 Scandal takes on a particular gravity by reason of the authority of those who cause it or the weakness of those who are scandalized. It prompted our Lord to utter this curse: "Whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened round his neck and to be drowned in the depth of the sea." Scandal is grave when given by those who by nature or office are obliged to teach and educate others. Jesus reproaches the scribes and Pharisees on this.”
(5) Koricke, Deborah. Clinical and Forensic Psychologist, case DR03294327. Court Report. November 18, 2004.
(6) Fessler, Diana. New Carlisle, Ohio, State Representative. Phone conversation. July 12, 2004.
(7) Odegaard, Ron. "New Canon Law Editions Published to Deepen Understanding of Laws of the Catholic Church." Catholic Online: PRWire Headline. June 24, 2004. <http://www.catholic.org/prwire/headline.php?ID=993>
(8) Ivars, Javier Escrivá, Commentary 1153, Section 4. Malicious Abandonment. Exegetical Commentary of the Code of Canon Law. Midwest Theological Forum, 2004.
(9) Cleveland Diocese Tribunal, Decree, No 2004/0002S, May 27, 2004
(10) Cincinatti Archdiocese Tribunal, Decision No. Z04/0001a, July 13, 2004.
(11) (a)Wrenn, Lawrence. The Invalid Marriage. Canon Law Society of America, Washington, D.C. 1998. and Wrenn, Lawrence G. Judging Invalidity. Canon Law Society of America. Washington, D.C. 2002. (b)Easton, Frederick C. ed. The Art of the Good and Equitable: A Festschrift in Honor of Lawrence G. Wrenn. Canon Law Society of America, Washington D.C., 2002. (c)Jenks, Richard J. Phd. Divorce, Annulments, and the Catholic Church: Healing or Hurtful? The Haworth Press, New York. 2002. (d)Vonderberger, Victoria R.S.M, J.C.L., Catholics, Marriage and Divorce: Real People Real Questions. St. Anthony Messenger Press. Cincinnati, Ohio. 2004. (e)Foster, Michael Smith. Annulment The Wedding That Was: How the Church Can Declare a Marriage Null. Paulist Press, Mahwah, New Jersey. 1999. (f) Catoir, Rev. John. J.C.D. North American Conference of Separated and Divorced Catholics 30th Anniversary International Conference, Keynote Address. Notre Dame, IN, July 3, 2004.
(12) Reported in Catholic World News. “Tribunals in some countries (notably the United States) are quick to provide annulments on uncertain grounds, while in other countries the faithful find it difficult to pursue even clear-cut cases of nullity. That was the testimony of Joaquin Llobel, a canon-law instructor at the Pontifical University of the Holy Cross and a member of the tribunal for the Apostolic Signatura.” <http://www.catholicexchange.com/e3news/index.asp?article_id=163720>
(13) Espelage, Rev. Arthur, O.F.M, J.C.D. Canon Law Society of America. Phone conversation. I asked him what was the origin of the requirement to have a civil divorce complete before an anulment case could begin; what it a directive from a bishop’s committee or a some canon lawyers commission? He answered 1) it’s not written anywhere in code, 2) it’s just common sense, 3) it’s always been that way as far as he knows, 4) if they did annulments before the civil divorce was done, it could open up the church to law suits for alienation of affection. Thursday 11/11/04.
(14) Forced divorce argued illegal under terms of Catholic antenuptial agreement. Catholic News Agency. August 25, 2004. <http://www.catholicnewsagency.com/new.php?n=1804>.
(15) Pastor Bonus (Apostolic Constitution on the Roman Curia, June 28, 1988) art. 126: "The Roman Rota is a court of higher instance at the Apostolic See, usually at the appellate stage, with the purpose of safeguarding rights within the Church; it fosters unity of jurisprudence, and, by virtue of its own decisions, provides assistance to lower tribunals."