Case 10. A Lawyer and a Divorce Case

Titius, a Catholic lawyer, was asked by Caius, likewise a Catholic, to seek a divorce for him in a civil court. For Caius had found, as he said, certain proofs of his wife’s adultery, and hence rightly feared that he would be bound to support offspring not his own. Titius sought a delay of two or three days before giving a reply and meanwhile consulted a confessor. Hence it is asked:

1. To which jurisdiction do causes of divorce belong, ecclesiastical or civil?

2. Is it lawful for a Catholic judge in a civil court to pronounce divorce, and for a Catholic lawyer to seek it?

3. Can all responses of the Sacred Congregations concerning this question be applied equally to all regions?

4. What must the confessor answer Titius?

1. Do divorce cases belong to the ecclesiastical or to the civil authority?

Divorce cases and all other matrimonial causes belong exclusively to the ecclesiastical courts, as Leo XIII taught in his letter Arcanum 10 Feb. 1880. However, in England and in the United States of America, with the leave of the bishop, a Catholic for just cause may petition for judicial separation and probably even for divorce in the civil court.¹

1 Manual of Moral Theology, voL i, 587, 591; vol. ii, 281.

2. May a Catholic judge pass sentence of divorce in a civil court, and may a Catholic lawyer petition for it in the same court?

This is a disputed question, and something depends on the country and the law under which the trial takes place. Confining ourselves to England and to the United States, it is probable that for grave reason both may be allowed, though it is better to have nothing to do with such cases as far as possible.²

2 Ibid., vol. i, 591; vol. ii, 283.

3. Can all the answers given by the Roman Congregations on this question be applied equally to all countries?

No, the circumstances of Catholic countries, of countries where the majority of the people are Catholics, but where sometimes the government is hostile to the Church, and of most English-speaking countries, are widely different, and much depends on circumstances. Thus the Holy Office, 27 May 1886, answered that in France a judge could not abstract from the objective validity of a marriage and give sentence of divorce as far as the civil effects were concerned. The nuncio in Belgium declared 14 Sep. 1886, that this answer did not refer to Belgium.³

3 Ballerini-Palmieri, Opus Morale, vol. vi, n. 825.

4. What should the confessor say?

The confessor should tell Titius, who is obviously a conscientious Catholic, that he should write to the bishop and ask for his leave to undertake the case. This will give the bishop the opportunity of satisfying himself about the reality of the facts alleged in the case, and perhaps of suggesting some way of avoiding all the scandal and unpleasantness of a divorce case among Catholics. If Titius gets the bishop’s leave he will be able to proceed without scruple.