Article II. On Civil Divorce

890. Notion. Civil divorce is called a separation of spouses pronounced by the civil power.

Just as in divorce pronounced by the Church there are two species, one perfect, or as regards the matrimonial bond, the other imperfect, or as regards habitation and bed, so also a twofold civil divorce is distinguished: one as regards the bond, so that it is permissible to celebrate new nuptials; the other as regards separation of bodies alone.

In some regions there exists only civil divorce as regards the bond, for example, in Romania, Serbia, Denmark, several states of North America, and partly in Switzerland, where imperfect divorce is indeed permitted, but not beyond three years.³⁵⁸ In other regions, however, only imperfect divorce or separation of spouses is permitted, for example, in Spain, Portugal, Italy, Argentina, Chile, and also in one state of North America, namely, South Carolina.³⁵⁹ Finally, there are several regions in which civil law permits either divorce, namely, either as regards the bond or as regards habitation alone, as in Germany, France, Belgium, England, and some states of North America. In Austria only separation as regards habitation is permitted to Catholics, but divorce as regards the bond is also permitted to other inhabitants.

³⁵⁸ Cf. Swiss Civil Code, art. 148, and Tuor, Einführung in das Schweiz. Zivilgesetz, 126.

³⁵⁹ Cf. Schulze, Eherecht und Ehegesetzgebung in den Vereinigten Staaten, in Linzer Theol. Quartalschrift (1909), 748 ff.

891. Principle. A civil law permitting perfect divorce is iniquitous and to be most gravely condemned.³⁶⁰

Against this law militate the same reasons which were adduced above against laws concerning civil matrimony. Moreover, as experience proves, the worst effects for religion and good morals follow from civil divorce: the mutual love and inviolate fidelity of spouses are diminished; the education of offspring is endangered; adulteries, quarrels, material losses, and crimes of every kind spring forth from it. Hence, the more frequent divorces are in some region, the worse the morals seen to flourish there.

Moral corollaries.

³⁶⁰ Cf. Constitution Arcanum. An Instruction of the Holy Office, December 21, 1901, admonishes the bishops of Italy to oppose strongly the introduction of divorce into the Civil Code.

892. 1. Concerning spouses. a) It is never permissible for Christians to seek the civil divorce of any valid matrimony for the purpose of being permitted to pass to other nuptials. The reason is that something intrinsically evil would be sought, as being directly opposed to the indissolubility of Christian matrimony.

b) For a grave cause it is permissible to seek imperfect divorce or separation of bodies from a civil tribunal. Such is now the common opinion among authors.³⁶¹ Concerning this matter the Holy Office established on December 19, 1860: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics perform in that forum the parts of plaintiff and advocate, provided that just causes of separation are present in the judgment of the bishop."

To the question, however, whether a husband could seek divorce from an adulterous wife while intending only to break merely civil effects, when no other means was available for obtaining the repudiation of paternity concerning adulterine children and their exclusion from the share of legitimate offspring, the Sacred Penitentiary responded on June 30, 1892: "Let the petitioner consult approved authors."³⁶² From this response it seems to follow that not only separation of bodies, but even perfect divorce in a case of most grave necessity, may licitly be sought from a civil judge; for a) the question concerned a true divorce, and b) approved authors teach that not only imperfect divorce, but even perfect civil divorce, is licit if no other means is at hand for preventing grave harms.

Hence, in those regions in which separation of bodies alone does not exist, a Catholic spouse can, when a grave cause is present and the permission of the bishop has been obtained, directly solicit a civil divorce for the purpose, not indeed of attempting new nuptials, but of obtaining the merely civil effects of divorce. The reason is that to seek civil divorce does not seem to be something intrinsically evil. Therefore, unless a special prohibition of the Church is present, it is permissible to act thus.

³⁶¹ De Smet, De sponsal. et matrim., n. 401; Noldin-Schmitt, De sacr., 17th ed., n. 671; Lehmkuhl, Theol. mor. II, n. 922, note.

³⁶² Cited in De Smet, loc. cit.

893. 2. Concerning the civil judge. Among all Catholic authors the following are established:

a) The civil judge must acknowledge his incompetence in matters which touch the sacrament of matrimony.

b) The judge can in no way render judgment concerning civil divorce if a special prohibition of the Church exists in some region.

c) The civil judge can protect the indissolubility of matrimony and reject spouses soliciting civil divorce; likewise, he can decree the perfect civil divorce of some matrimony which either was null in itself, for example, the civil matrimony of Catholics, or was previously dissolved by the Church as regards the bond.

d) The civil judge cannot pronounce the perfect divorce of any Christian matrimony without a most grave cause. The reason is that the judge cannot cooperate in some evil action, such as divorce, without a grave necessitating cause.

It is sharply disputed whether, even when a most grave cause exists, the civil judge can licitly pronounce civil divorce while intending only the civil effects of dissolution. Several authors, among whom Bucceroni³⁶³ and Gasparri³⁶⁴ are prominent, teach that the judicial pronouncement of the civil divorce of a Christian matrimony is an intrinsically evil act and therefore is never licit. Other authors, however, among whom are De Smet,³⁶⁵ Noldin-Schmitt,³⁶⁶ Lehmkuhl,³⁶⁷ Göpfert,³⁶⁸ Marc,³⁶⁹ Waffelaert,³⁷⁰ Ballerini-Palmieri,³⁷¹ De Becker,³⁷² Génicot,³⁷³ Grandclaude,³⁷⁴ and Leitner,³⁷⁵ teach that this pronouncement of divorce is not an intrinsically evil action and is therefore licit in grave necessity.

This second opinion seems to be solidly probable not only extrinsically, because of the authority of the doctors, but also intrinsically; and therefore a Catholic judge cannot be obliged to resign his office rather than pronounce a sentence of divorce. For the pronouncement of divorce made by a judge with regard to civil effects alone is not intrinsically evil either by reason of its object or by reason of circumstances necessarily connected with it.

Indeed, it is not intrinsically evil by reason of its object; for through the pronouncement of divorce nothing else is done except that a matrimony legitimate before God is deprived of civil effects and legal recognition, and legal impunity is granted to the spouses if they wish to enter a new civil matrimony. All these things, however, do not seem to be intrinsically evil when a grave necessitating cause is present, because in all these things the judge does not at all touch the very nature of Christian matrimony, but only the civil bond which was contracted in the civil matrimony. Or, in other words: Civil divorce is nothing other than the destruction of civil matrimony. Now, just as the destruction of civil matrimony for an entire region is not something intrinsically evil by reason of its object, so a fortiori the destruction of civil matrimony in a particular case through a divorce pronounced by a judge is not intrinsically evil.

Nor is a sentence of divorce intrinsically evil by reason of circumstances necessarily connected with it. For, supposing the clearly expressed will of the judge to touch nothing but the civil effects of matrimony, no other evil circumstances can be connected with the sentence of divorce except scandal to the people and cooperation in the sins of others. Certainly, grave scandal can sometimes arise from a sentence of divorce, especially if divorce had hitherto been unheard of in some region and a new law of divorce was enacted in hatred of religion. Then a sentence of divorce could certainly be expressly prohibited by ecclesiastical authority. But if the law of divorce has already been in force for a long time in some region and is often applied, as is usually the case in several states of Europe, then a Catholic judge, pressed by necessity, causes no true scandal by pronouncing divorce. For all know that the judge cannot act otherwise unless he wishes to lose his office.

Nor is a sentence of divorce intrinsically evil by reason of cooperation in the sins of others, both because this cooperation is not so proximate and because it is permissible for a most grave cause to cooperate in the sin of another, provided that this cooperation is not rendered through an action intrinsically evil by reason of its object.

These things being so, a Catholic judge is not to be disturbed if, pressed by most grave necessity, he pronounces a sentence of divorce, provided that no special prohibition of ecclesiastical authority stands in the way and provided that he openly professes that he dissolves only the civil effects of the matrimony.³⁷⁶ This opinion indeed receives great strength from a response of the Sacred Penitentiary given on September 24, 1887 to the Bishop of Luçon: "To the question whether a mayor can pronounce a divorce which he is compelled to pronounce under penalty of resigning his office, on the supposition that he openly professes the incompetence of the civil judge in a matrimonial matter and the ineffectiveness of the divorce as regards the bond, the response is that it can be tolerated that the petitioner, the mayor, proceed to the act concerning which the petition was made."³⁷⁷

The Holy Office, however, wrote to the Bishop of St. Gall in Switzerland on April 3, 1877 that judges ought to have recourse in individual cases. From these two responses it seems manifestly to follow that a sentence of civil divorce is not something intrinsically evil; for otherwise the Sacred Penitentiary could not have tolerated it, and the Holy Office could not fittingly have prescribed recourse for individual cases. For what need is there of consultative recourse if it is clear from the outset that a sentence of divorce is intrinsically, and therefore always, evil?

We are not unaware, indeed, that there also exist certain responses of the Holy Office, for example, those of June 26, 1885 and May 27, 1886, from which it rather follows that a sentence of civil divorce is intrinsically evil; but the answer is that these decrees were particular by reason of the peculiar circumstances present. For it is certain and admitted by all that hitherto no general decree of ecclesiastical authority concerning this controversy exists; indeed, the Holy See has deliberately abstained from settling the question to this day. Therefore, an apodictic argument for the stricter opinion cannot be taken from authority. In practice, then, it is permissible to follow the benign opinion, since it is solidly probable both intrinsically and extrinsically.³⁷⁸ It is nevertheless to be desired that all Catholics, and especially deputies, labor strenuously to reform civil legislation, so that no public official may now be compelled to pronounce the civil divorce of a valid matrimony.

³⁶³ Theol. mor. II, n. 983.

³⁶⁴ De matrim., n. 1248, where he says that he inclines to the stricter opinion.

³⁶⁵ Loc. cit., n. 393.

³⁶⁶ De sacr., n. 669.

³⁶⁷ Theol. mor. II, n. 921, note.

³⁶⁸ Moraltheol. III, n. 284.

³⁶⁹ Instit. mor. II, n. 2126.

³⁷⁰ Sur la coopération, 66.

³⁷¹ Opus theol. mor. VI, n. 819 ff.

³⁷² De matrim., 426 ff.

³⁷³ Theol. mor. II, n. 561.

³⁷⁴ Règles pratiques touchant la coopération au divorce civil, 8.

³⁷⁵ Lehrb. d. kirchl. Eherechtes, 618.

³⁷⁶ For Germany and Holland this opinion seems morally certain, since in their civil codes it is clearly stated that ecclesiastical statutes concerning matrimony are not at all touched by civil legislation. Dutch Code, art. 83; German Civil Code, § 1588: "The ecclesiastical obligations with respect to marriage are not affected by the provisions of this section." Aertnys, Theol. mor., bk. 3, n. 522, is also of this opinion, although for other regions he defends the stricter opinion.

³⁷⁷ Cited in De Smet, De sponsal. et matrim., n. 398.

³⁷⁸ Thus also Linneborn, Grundriß des Eherechtes, 2nd ed., § 4.

894. 3. Concerning advocates. Almost the same holds for advocates as was said concerning judges. For if the sentence of divorce itself is not something intrinsically evil, it is permissible not only to pronounce it when grave necessity exists, but also to plead in its support. Nevertheless, a sufficient necessitating cause is more rarely present for an advocate than for a judge. For an advocate is accustomed to undertake a divorce case freely, not by force of office. Nevertheless, it can happen that even for an advocate there exists a sufficient cause for seeking the divorce of his client, especially if an imperfect divorce has already been obtained in an ecclesiastical tribunal.³⁷⁹ For the rest, in practice a confessor ought not to disturb Catholic advocates who cannot decline the office of plaintiff in a divorce without most grave inconvenience, provided that no scandal arises therefrom and merely civil effects are openly intended.

Scholion. It would remain for us to treat the judicial process in matrimonial cases; but because this whole matter pertains to canon law and cannot be treated sufficiently in a brief Manual of Moral Theology, we refer the reader to the canonists who treat this matter expressly, for example, to Wernz-Vidal, Ius can. V, seventh part; to Linneborn, Grundriß des Eherechtes, §§ 59–66; and to our Manual of Canon Law, q. 537 ff.

³⁷⁹ Cf. Holy Office, December 19, 1860.