Terms of Marriage and Divorce


Book
Vatican Authorities Recommend

Pope Benedict XVI
on Canon Law

     Contents of this page

Definitions bring to top
Terms of Marriage Agreement, Reasons to Separate bring to top
Authoritative Sources Cited bring to top

     Definitions

  • marriage: relationship or ceremony; centuries-old meaning of marriage has been tremendously altered; one must specify the terms of one's marriage contract, as there is no universal definition
  • serious religious marriage: centuries-old meaning; "true marriage"; lifelong partnership between man and woman, open to raising and supporting children; adultery and abandonment are faults which hurt the family, but don't end the marriage
  • no-fault-divorce "marriage" : temporary partnership which ends when either party feels like it; when "marriage" ends, children become wards of a state guardian; government court's most common procedure is to a) give children to spouse wanting divorce or split children between two parents on rigid schedule, b) split property 50%/50%, c) punish parent who teaches children that abandonment or adultery are immoral, d) force children into institutional care because stay-at-home parenting is unaffordable marriage proposal
  • separation: situation in which two spouses don't live together
  • divorce: process applied to generic government "marriages" when parties are no longer "partnered"
  • church annulment decree: legal document generated by the church tribunal using rules applicable to all who marry in the Catholic Church (canon law); after an investigation, it is determined that a true serious religious marriage is found to have never occurred.
  • church separation decree: legal document generated by the church tribunal using rules applicable to all who marry in the Catholic Church (canon law); after an investigation, it is determined whether either spouse in a true serious religious marriage has licit reason for separation; includes findings for upbringing of children and support that do not contradict divine law
  • petition to vindicate rights: An abandoned spouse can petition the Church asking to vindicate marital rights. The outcome could be a decree notifying an abandoner of the juridic fact that he/she has the obligation to maintain intact marital home. Download sample petition Download

Terms of Marriage Agreement, Reasons to Separate

Many people will only agree to be married in a serious religious marriage in which they vow to share their powers to bear and raise children with someone who shall be their partner for life. They promise to not commit adultery, to accept each other's imperfections and quirks. Catholics promise to raise children in accordance with the tenets of their own religious faith.

Feeling bored, unhappy, emotionally dissatisfied, ignored, annoyed, angry, disrespected, tired, ashamed, embarrassed, or disgusted are not licit reasons to separate. These emotions will surface in every marriage because of one's own imperfections or sinful habits, or one's spouse's imperfections or sinful habits. Or they may surface as a natural part of the ups and downs of life. One can learn to deal with these emotions constructively, and that is when true marriage shines. (see Supporters on left menu)

For those who truly marry as the Catholic Church understands marriage, licit reasons for separation are defined: if one spouse puts the children or the other spouse repeatedly in serious danger (bring definition to top) and separation is the only way to ensure safety; if one spouse makes it impossible for the children or the other spouse to practice their faith; or if one spouse commits adultery, while the other spouse remains dedicated to the marriage promise and does not commit adultery.

If one spouse leaves for no licit reason – and breaks his or her marital promise – the other spouse and children still expect the abandoner to fulfill his or her contractual responsibilities toward the family. In all cases, these responsibilities are lifelong, and the dedicated spouse and children need to be protected from the spouse at fault. The spouse at fault is to be prevented from doing anything more to harm the moral or material well-being of the dedicated spouse or children.

Procedures are described in the Code of Canon Law: When an engaged couple prepares to marry in the Roman Catholic Church, they implicitly choose the Catholic tribunal, not the government, as their designated authority to arbitrate the terms of any future separation decree. If there is serious danger at home, one may separate from one's spouse immediately. But if one expects to approach a government civil court, the parties to a true Catholic marriage have agreed to follow canon law, which requires, for each particular case, the intervention of the canonical authorities. No one shall request civil court orders that are contrary to divine law.

Since parents are responsible for the moral and character formation of their children, those who want children to have Catholic character formation would not want abandoners and adulterers be responsible for the upbringing of children when they choose immoral behavior for themselves.

Authoritative Sources Cited

Those who marry as the Catholic Church understands marriage are not free to invent their own definition of marriage. Marriage was ordained by nature and Catholic Marriage is explained by the authoritative teaching of Rome and those bishops in union with Rome.

The Catechism of the Catholic Church teaches divorce is immoral and a grave offense against nature. It 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. See CCC #2384, 2385, 2386.

Pope John Paul II's Pontifical Council for the Family recognizes that the dedicated spouse and the children are the ones who end up paying as a consequence of divorce. Children are deprived of a father or mother and condemned to be in fact orphans of living parents. See Council's exact language.

Pope John Paul II's Apostolic Exhortation, Familiaris Consortio, states "Loneliness and other difficulties are often the lot of separated spouses, especially when they are the innocent parties. The ecclesial community must support such people more than ever. It must give them much respect, solidarity, understanding and practical help, so that they can preserve their fidelity even in their difficult situation;" See Sec 83 Separated or Divorced Persons Who Have Not Remarried

The Catechism also explains, "The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law. 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." See CCC #2383.

Canon Law The legitimate certain cases mentioned in this Catechism paragraph (CCC 2383) are described in the corresponding footnote which cites canon law 1151-1155. Canon law is originally composed in Latin and our current code was promulgated in 1983 after decades of research and input from canonists all over the world. The 1917 code (CIC 1917 (Codicem Iuris Canonici)) was reorganized after the 1959 request of Pope John XXIII. See canon law 1151-1155.

Vatican Publishing House, Year 1984, on Canon 1692 "All the separations of the baptized spouses are to be decided either through the administrative process that culminates with the decree of the diocesan Bishop, or through the judicial process, which culminates with a constitutive sentence pronounced by the competent judicial body."

Libreria Editrice Vaticana (Vatican Publishing House). Dilexit iustitiam : studia in honorem Aurelii Card. Sabattani (He hath loved justice: studies in honor of Aurelius Card. coram Sabattani.) Cardinal Aurelio Sabattani served as Prefect of the Apostolic Signatura from 1982 through 1988. See Instruction on canon 1692.

Canon Law Annotated. One can read commentary recommended by Rome to understand the legitimate cases for separation: adultery, grave bodily harm to the spouse or children, grave spiritual harm to the spouse or children, and desertion. See just reasons for separation. canon 1151.     When a spouse is unhappy, but can't blame the other spouse for adultery, repeated dangerous abuse, or making it impossible for the family to practice their Catholicism, there is no licit reason for separation. See Blameless, unhappy situations fail. canon 1153.

Canon 1152 teaches that if an innocent spouse wants to be separated from an adulterous partner, this is acceptable. However, the innocent party is strongly encouraged to forgive the offender. If both spouse are committing adultery, there may not even be legitimate cause for separation. Mary's Advocates is not focussing on these situations. See adultery special cases. canon 1152.

Canon 1153 is most important because it lists reasons for separation besides adultery:
Can. 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 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.
Exegetical Commentary on Canon Law As those who choose a True Catholic Marriage are not free to invent their own definition of marriage, they are also not free to invent their own reasons for, and consequences of, separation. Anyone who accepts the terms of a True Catholic Marriage can see the definition of the "grave danger of soul or body" in commentary recommended by Rome. To justify separation, the offenders action must be grave, such that is it dangerous; it must be repeated; and separation must be the only way to be safe from the danger. See conditions are necessary. canon 1153.

If one's spouse is guilty of the grave offenses described above, the family suffers much. If separation is the only way to remain safe, being separated is better than remaining in serious danger. When one's spouse is NOT guilty of the offenses described above, those who choose True Catholic Marriage have promised to stay together. When one breaks this promise, one is an abandoner destroying his or her own family.

The Catechism makes the distinction between a dedicated spouse and one who through his own grave fault destroys a valid marriage. See considerable difference. CCC 2386.

Exegetical Commentary on Canon Law defines malicious abandoners. Those who choose True Catholic Marriages want to protect spouses' duty to family, and penalize their omission. There is an intent to declare guilty the spouse who has maliciously been absent and to obtain the legal declaration of separation for the one who has been abandoned. See malicious abandonment. canon 1153. A separation decree prevents future evils for the innocent spouse and children. See prevent future evil. canon 1153. An ecclesiastic separation decree is obtained from either a Roman Catholic Tribunal or Bishop. This authority, designated by couples who choose True Catholic Marriage, shall objectively assess and determine the cause, the duration, and the effects of the separation. See required intervention. canon 1151. The judgement decree must include findings for education and support of children. Would the canonical tribunal take children from the dedicated spouse and leave the malicious abandoner responsible for children's spiritual and character formation? See must find regarding education. canon 1153. A canonical decree recognizes the responsibility of an abandoner to continue his or her natural obligations to contribute to the material good of the dedicated spouse and children for the duration of their lives. This is one of the principles one accepts when choosing a True Catholic Marriage bond. See contribution to material good of spouse and children. canon 1151.

Canon Law Annotated. State governments can not force all residents to accept the terms of the Catholic Marriage agreement. So instead, those who choose Catholic Marriage limit their own options for separation or divorce, and specify the criterion under which they will approach the civil court. They will request the canonical authorization as a necessary precaution, to prevent civil court judgments for their families which violate divine law. See preventing civil court judgement that violate divine law. canon 1692. This canon specifies that the canonical determination is made regarding a family's particular circumstances. If one disagrees with the local canonical decision regarding one's particular circumstance, there is also a process for appealing to a higher canonical court in the next canon, 1693.

Cardinal Ritter, Archbishop St. Louis, Imprimatur, 1962 "It is a grave sin for a validly married Catholic to institute divorce proceedings against a partner without permission of the bishop of the diocese." Program for Divorced Catholics by Fr. Donald Miller LINK

U.S. Bishops Particular Law 1948 Moreover, we have in this country particular legislation on this point that" [...] "is still binding on us. It reads: "We command all (i.e. baptized) married persons that they must not go to the civil courts to obtain a separation from bed and board without previously receiving permission from the ecclesiastical authority. Should anyone attempt this, let him know that he incurs the guilt of grave sin and that he is to be punished as the Bishop shall decide." LINK Paper includes The Right Reverend Monsignor William J. Doheny, C.S.C., J.U.D., Auditor of the Sacred Roman Rota, for permission to use portions of his "Canonical Procedure, Volume II" in the preparation of this paper.

Advocate of The Signatura Apostolica, 1944 "In cases of temporary separation, the aggrieved consort may not, propria auctoriate [own authority], abandon the obligation of conjugal cohabitation until there is moral certitude about the existence and gravity of the cause and that there is real danger in delay (Can. 1131 §1). In practical cases, the innocent consort should be advised to submit the case to the ecclesiastical authorities by whom an objective and thorough study may be made of the entire matter. " (page 638). Canonical Procedure in Matirmonial Cases, Volume II, Informal Procedure by Msgr. William J. Doheny, C.S.C., J.U.D, Advocate and Procurator of the Tribunal of the Signatura Apostolica and of the Sacred Roman Rota, Assistant Superior General of the Congregation of the Holy Cross, Dean of the University of Notre Dame Law School. Copyright 1944. Second Edition 1948. Publisher: The Bruce Publishing Company, Milwaukee.
Section Six, The Separation of Consorts: Chapter 25 Proper Canonical Authorization of Separation. p. 618-638 (16.1 Mb) ; Chapter 26 The Proper Canonical Procedure in Separation Cases, p 640-653 (7.9 Mb) ; Chapter 27 Digest of Cases of Separation Adjudged by the Tribunal of the Sacred Roman Rota, p 654-673 (13.6 Mb),

Auditor Sacred Roman Rota, 1935 When there is a question of nullity, private authority is not recognized as an adequate basis for establishing a legitimate separation. Cited by Gibbons. Sartori, an auditor of the Sacred Roman Rota, had expressed this opinion before the issuance of the Instruction "Provida Mater" of the Sacred Congregation of the Sacraments.

Decision of the Holy Office yr. 1886 When a Catholic sues for a separation in this country, the Catholic judge has a right to presume quod "adsint justae separationis causae judicio episcopi"[there are just reasons for the separation of the judgment of the bishop]. For no Catholic will do so without consulting his or her confessor; and no confessor can permit or advise the institution of such a suit, since such permission is an actus fori externi. The confessor must refer the case to the person's pastor. And the pastor cannot give permission, because all matrimonial causes are causae majores, reserved to the ordinary [Bishop], even to the exclusion of the vicar general, as we have elsewhere shown. (Decision of the Holy Office yr. 1886 (now named Congregation for the Doctrine of the Faith) reprinted in "The Pastor, A Monthly Journal for Priests" page 78-79)

Third Plenary Council of Baltimore yr. 1885 With the decrees of the Third Plenary Council of Baltimore, the Holy See approved in 1885 particular laws for the United States including Act Number 126, stating that anyone who petitions in the civil forum for separation [including divorce] without the ecclesiastical permission incurs grave guilt and is to be punished through the judgment of the bishop. Read more in "Mary's Advocates Observations, section "21 Council of Baltimore 1885, Decree No. 126." And see "A Comparative Study of the Councils of Baltimore and The Code of Canon Law" by John Daniel Mary Barrett, A.M. , J.C.L. Catholic University of America 1932.

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