Question:

I would like you to tell me if the Church permits me, in the exercise of my profession as a lawyer, to accept divorce cases.

Answer: 

A legitimately performed marriage is valid, and the matrimonial bond arising from such a commitment is indissoluble by its very nature. When at least one of the two parties is Catholic and has not publicly apostatized from their faith, only a marriage performed according to the laws of the Church is valid.

There are several ways to address a true or apparent marriage:

1. Declaration of Nullity. This is the sentence by which it is confirmed that—due to certain impediments existing at the time of the marriage—there never was a marriage. Evidently, this is in no way a dissolution. In any case, only the Church has the power to make—after the corresponding study—such a declaration.
2. Dissolution of the Bond Proper. We have said that a valid matrimonial bond is intrinsically indissoluble, meaning it cannot be dissolved by the will of the spouses themselves but only by death; this statement is understood in an absolute sense for a ‘ratum et consummatum’ marriage. In some cases already specified by law, it can be dissolved extrinsically, that is, by an authority superior to the spouses themselves, which is the authority of the Roman Pontiff as the Vicar of Jesus Christ. These cases are restricted only to ratum et non consummatum marriages and to some valid and consummated but non-sacramental marriages. It is evident that the dissolution of the bond proper does not fall under the competence of any human power outside the Church, and no one can claim to decree it without committing a grave sin.
3. Separation from Bed and Board. This is the separation from cohabitation by a valid and indissoluble marriage, but the bond remains; it is contemplated by the Church’s own law.  In principle, a lawyer or a judge does not have to intervene, unless it is necessary for the separation of assets.

It may happen that one of the parties wants or demands a declaration of civil divorce (either because they want to seek a new marital union, or because it is the only means to defend their own assets or those of their children). In these painful cases, the following is considered:

a) When the guilty party petitions against the innocent one (the other party requests the divorce as a condition for providing lawful maintenance or granting the right to educate the children). The Catechism of the Catholic Church (n. 2383) states: ‘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.’

b) When the innocent party petitions, not in order to contract a new marriage but as the only means to maintain the care of the children or to defend their legitimate assets, I believe the same applies. In this case, the principle of double effect would apply: they desire the care of the children or the defense of their assets and tolerate the civil declaration to which they grant no real value (because they know their bond remains).

Regarding the lawyer and the judge acting in these cases, what must be said?

• The judge who declares that the matrimonial bond (of a canonical marriage or a natural marriage between two non-baptized persons) is dissoluble and that a second marriage is lawful, provides formal cooperation to the evil act of the divorce-seeking party or the guilty party.
• In some circumstances, it may be lawful for the judge to declare that, in accordance with the laws, the marital partnership is dissolved concerning the civil effects of marriage (community of property, etc.), even if it is foreseen that this declaration will drive not a few people to lead a pseudo-marital life, which is evidently illicit. Any allusion to the bond should be avoided in the formulas used.
• The lawyer cannot sponsor any divorce process understood as the dissolution of the sacramental or natural bond. They can, however, defend the innocent party whom the other party is divorcing, regarding the civil effects. They can also sponsor the petition for divorce for the innocent party, that is, request that this case be framed under such and such a law that provides for those effects which their client can lawfully request and cannot obtain by other means (the obligation to maintain the wife and children, to respect their assets, etc.); in this case, the solicitation of the divorce and its defense must not refer to the dissolution of the bond with the right to contract a new marriage, but only to the bodily separation and the other effects that the separation entails.
• When the lawyer is assigned the case ex officio (for example, if they work in a firm that handles various cases and it is their turn when this one is requested), they should try to excuse themselves from this obligation. If they cannot do so, they must limit themselves to presenting before the court the legal grounds on which the divorce petition is based, striving to note their opposition to Catholic principles if it is understood as a divorce of the bond.

The Separation of an Invalid Merely Civil Marriage. I have said that when at least one spouse is Catholic, they are obliged to celebrate their marriage according to the ordinary or extraordinary canonical form or request a dispensation. If this has not been done in this way, their marriage was invalid and the marriage is non-existent.

What is appropriate for the spouses is to regularize their situation if this is possible, especially if there are children involved, promises of a canonical marriage, financial obligations towards the other spouse, etc. When regularizing the situation is impossible or inadvisable, separation would be appropriate. In this latter case, civil divorce is a procedure where they legally dissolve a civil contract that it was not lawful for them to enter into. Not only can they do this, but in many places it is a requirement to later contract a canonical marriage (i.e., to marry in the Church with another person). If it is lawful for the civilly married spouses to obtain a civil divorce, it will also be lawful for the judge to decree the divorce and for the lawyer to promote it. In any case, to avoid confusion or false scandal, one must find a way to note that no bond is being broken, but rather that it never existed.

Fr. Miguel A. Fuentes, IVE

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