Thursday, January 20, 2005

No-Fault Divorce and the Code of Canon Law

I reply here to an email recently received: "I am curious about this concept of the Catholic "dumpee" spouse fighting the Catholic "dumper" spouse in the no-fault divorce climate. I have read where Bud MacFarlane's wife (Bai, I think) has tried to have her husband's case for secular divorce put into the ecclesiastic court jurisdiction based on catholic church verbal prenuptual assumptions and agreeements. Do you have any comments or can you direct me to some reliable source on this?"

I don't know how helpful these musings will be, but here goes. The MacFarlane's divorce case was originally fought by Bai MacFarlane on the theory that the Code of Canon Law constitutes a prenuptial (a/k/a antenuptial) contract between the spouses which governs/restricts their rights in divorce ligitation. It was rejected almost out-of-hand by the court. While secularism plays a huge part in that hostility, there's a tough legal issue at bottom -- should the courts allow religious law to constitute a prenuptial contract between the spouses that overrides secular law. In other words, should we allow the Islamic Sharia law, the Book of Mormon, or other religious laws, to control divorce matters like property division, child custody, etc.? These points were alluded to, but not made so bluntly, by the Guardian Ad Litem's opposition to Bai's request. It's a serious argument, and I'd personally be interested in reading more arguments on the issue, especially arguments conducted in view of the Church's teachings on subsidiarity, before agreeing with Bai's legal assertions about the antenuptial authority Canon Law and, by extension, all other religious laws, should have in civil divorce courts.

IMHO, another good ground for challenging a secular no-fault divorce (Bai's attempt was ingenious, and worth trying, I didn't mean to suggest otherwise) is that "no-fault" really *isn't* "no-fault." For example, here in Indiana the statute technically requires proof that the marriage has suffered an irretrievable breakdown such that the parties can no longer live as husband and wife. That's "no-fault" in the sense that no one has to prove *who* wrecked the marriage. Some proof is still required to the effect that the marriage has been irretrievably wrecked. Normally that's a mere technicality -- the lawyer calls his client to the stand and says "Dick, has your marriage to Jane suffered an irretrievable breakdown such that you two can no longer live as husband and wife?" When Dick says, "Yes," that's all the proof required. But what if lawyers began challenging that pro forma method? What if we began trying to prove that the marriage *isn't* irretrievably broken, *despite* what one spouse says about it? That avoids the "Sharia law" problem with Bai's challenge, but I wouldn't hold out much hope for its swift success.

The other method would be to actually *write* a prenuptial agreement which, while making no reference to the Code of Canon Law, incorporates its strictures on divorce. That was another problem with Bai's challenge -- because it was based on out-of-court, informal statements by Bud and herself, and assumptions stemming from those statements about the parties' intention for their marriage, it is relatively easy for a Court to indulge the natural reluctance about writing a *post hoc* contract into a marriage when neither party did was Ceasar requires to write such a contract. The prenuptial could be drafted with a "severability" clause, which basically means that if the secular court refuses to enforce one part of the agreement, the others could still be enforced. That, plus vigorous litigation along the lines in the preceding paragraph, might significantly alter American divorce law if the campaign were sustained and conducted many times in many jurisdictions.

As matters now stand, I think it will be impossible for any half of a Catholic married couple whose marriage has fallen prey to the jurisdiction of a secular court to successfully argue that the Code of Canon Law must, simply because both spouses are Catholics, control the outcome of any aspect of the divorce. Both the ardent secularism of the American legal system, and the difficulties posed by that argument for the rule of law, would invariably cause the court to reject such a challenge. Of far greater impact, both in the long run and the short term, would be a renewed appreciation in the culture about the sick nature of most divorces, and a renewed interest by the episcopacy in the lives and behavior of its charges. That ought to indicate how dire I think things are.

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