Article — Merkelbach, Pastoral Questions
Article II: Concerning Civil Divorce
- I. In our days among many nations God and Christ are exiled from public life. The state is judged to have every power, without being bound in any way to attend to divine or ecclesiastical laws. And thus civil matrimony and civil divorce have been instituted against the rights of God and of the Church. Concerning civil matrimony there is no great difficulty. Not only can the faithful admit it, provided they do not attribute to it any effect with respect to matrimony itself beyond the acquisition of civil rights, but they are altogether to be invited to fulfill that formality, on account of procuring the temporal good of the spouses themselves and of the offspring to be born.
But concerning civil divorce a graver difficulty remains: namely whether it is licit for Catholics both to petition for it, and to pronounce it as judge, and finally to join civilly those who are kept back from new nuptials by the impediment of bond.
- II. Notion of civil divorce.
a) Civil divorce is the dissolution of civil matrimony even with respect to the bond, so that the spouses can freely contract another matrimony.
b) But note well that in the intention of the legislator, at least in Belgium and in France, civil matrimony is considered as true and indeed the only matrimony, to such an extent that matrimony contracted before the Church only, the law holds as concubinage, and the children born from such a union as illegitimate.
- III. What must be thought concerning the law permitting divorce.
No one of the Catholics can doubt that that law is most evil, as usurping the rights of the Church, which alone is competent to render judgment in matrimonial causes, and, what is still worse, as sacrilegiously contending to break the matrimonial bond, against the precepts of divine law itself.
- IV. What concerning the sentence itself of perfect divorce.
a) There is a great dispute among authors whether such a sentence is intrinsically and essentially evil, so that for no cause, although most grave and most urgent, can it be rendered by a judge or petitioned for by spouses.
b) Nevertheless, that essential malice seems to be absent from a sentence of divorce, so that sometimes under certain conditions, with conscience unharmed, it can both be pronounced by a judge and be sought by spouses and advocates.
For such essential malice appears neither with respect to the very object of the sentence, nor with respect to the circumstances necessarily annexed.
- Not with respect to the object. For a sentence of divorce is of itself nothing other than the destruction of civil matrimony, or the privation of legal recognition and civil effects for the matrimony. Now nothing there seems to be essentially evil.
- Not with respect to the circumstances necessarily conjoined: For if the judge clearly expresses his will of touching only the civil effects of matrimony, no other evil circumstances can be conjoined with the sentence of divorce except scandal for the people and cooperation in the sins of others.
Such scandal is not present in most European nations, where the law of divorce has been in force for a long time and is constantly applied, if the judge or spouses or advocate, driven by true necessity, render or seek such a sentence.
But with respect to cooperation in the sins of others, the cooperation is not so proximate, and since it is not by an action evil of itself, it can be excused from a most grave cause.1
1 Prümmer, cited work, nn. 901 and 902.
- V. What concerning the judge in relation to the sentence of divorce.
a) He can pronounce divorce whenever the matrimony of which there is question is certainly invalid, as being merely civil between those who are bound to canonical form, or when its nullity has been declared by ecclesiastical authority, or it has legitimately been dissolved with respect to the bond.
b) He can take up the cause so that he may repel the petition for divorce.
c) If, however, he is compelled to put aside the office of judge unless he is willing to judge the cause of divorce, and he cannot repel the petition of the plaintiffs, he seems able to pronounce the sentence of divorce, provided he protests that he wishes to touch only the civil effects.
- VI. What concerning the plaintiff in a divorce cause.
a) Divorce can be petitioned for in the case of an invalid matrimony, and insofar as necessary one declared such by the Church, or legitimately dissolved with respect to the bond.
b) The plaintiff sins most gravely if he intends the dissolution of the matrimonial bond itself or to obtain freedom of entering other nuptials.
c) Even if he seeks only the civil effects, generally one petitioning for civil divorce sins gravely.
d) If, however, most grave causes for petitioning for divorce are present, the plaintiff does not seem able to be condemned, provided he obtains the permission of the local Ordinary.
The Provincial Council of Mechelen of the year 1920, celebrated under the presidency of the Most Eminent Cardinal Mercier and approved by the Apostolic See, thinks in the same way, saying: "Catholic spouses incur the guilt of grave sin who, while the matrimony is valid before the Church, without a most urgent and most grave cause, to be known by the Ordinary, do not hesitate to solicit civil divorce as plaintiffs."2
2 Acta et Decreta Conc. Prov. Mechlin. quarti, n. 81, Mechlin, 1923.
e) But whether such most urgent and most grave causes which excuse a petition for divorce really are now ever present, at least in Belgium and France, may deservedly be doubted.
- For formerly a twofold cause could be present in Belgium for Catholics to solicit divorce and to judge bodily separation insufficient: fear lest adulterous offspring be unduly ascribed to the husband, and the desire for the wife to vindicate to herself sufficient freedom in the administration of her goods and the education of the offspring.
- But now such causes no longer exist. For the law of 20 March 1927 brought opportune changes into the regime of bodily separation, which extended the principal advantages of divorce to the regime of bodily separation.
Thus from the new law, in the case of a judgment or even only a petition in a cause of bodily separation, the husband can reject paternity of a child born at least on the three-hundredth day from the date of the decision by which the tribunal permits the wife to have a separate domicile, or before one hundred and eighty days to be computed from the definitive rejection of the petition or from the reconciliation accomplished between the spouses. Indeed, the action of the husband in denial of paternity is not admitted if the wife proves that meanwhile she was again with the husband in fact, but that proof is incumbent upon the wife.
On the other side, the new law grants to the wife who is bodily separated from her husband the full exercise of her civil power independently from the husband.
- In France already the law of 6 December 1850, confirmed by the law of 27 July 1884, established nearly the same things as the new Belgian law with respect to denial of paternity in the case of bodily separation. And the law of 6 February 1893 grants full civil capacity to a bodily separated wife.3
3 Cf. Annales du Notariat et de l'Enregistrement. Aug.-Sept. 1927, pp. 316-337. Jules Chevalier, Loi du 20 mars 1927 portant modification au regime de separation de corps.
- But with respect to the custody and education of children, bodily separation and divorce practically have the same effects.
- VII. What concerning the advocate.
Since the advocate is nothing other than the vicegerent of the plaintiff, the things we said concerning the plaintiff, with respect to the most grave and most urgent causes and the permission of the Ordinary which are required so that he may licitly petition for divorce, are altogether to be applied to him.
- VIII. What concerning the mayor celebrating the civil matrimony of those who are held by another valid matrimony.
Since neither does that action seem intrinsically evil, the mayor can, from a grave cause, suppose lest he be compelled to put aside his office, provide that assistance. Thus the modern authors commonly teach.4
4 Prümmer, cited work, n. 898.
- IX. Concerning the manner of acting of the parish priest or confessor toward those who have obtained divorce without permission of the Ordinary.
a) Let him induce them to repent concerning the fault admitted.
b) If reconciliation appears morally possible, and no sufficient cause of bodily separation is present, let the parish priest or confessor command that the party who petitioned for divorce procure reconciliation as far as possible.
c) But if reconciliation is impossible, or if causes altogether sufficient for making bodily separation are present, I judge that the penitent can be admitted to the sacraments. But it would be better to refer the matter to the judgment of the Ordinary.
PRAISE TO GOD AND TO CHRIST THE KING!