Appendix. What is to be Observed in Practice concerning Civil Marriage and Civil Divorce

285. - Although the question of civil marriage and civil divorce has its proper place in the treatise on Matrimony, nevertheless, because of the force which institutions of this kind exert upon chastity itself, we discussed each argument theoretically in the former part; it is useful here to say in a few words what Catholics can or ought to do in this matter.

Therefore, Catholics not only can but also must comply with the law concerning civil marriage: both in order that they may obtain civil protection for their marriage celebrated or to be celebrated before the Church and confer upon their offspring the civil benefits of legitimate marriage, and in order that by their voluntary compliance they may take care not to give the civil power a pretext or occasion for promulgating prescriptions which would be more contrary to ecclesiastical laws ¹. Cf. the response of the Holy Office, January 12, 1881; the instruction of the Sacred Penitentiary, January 15, 1886. And the opinion of the doctors is in agreement.

¹ The neglect of certain faithful persons was the occasion for the fundamental law of Belgium to prescribe that "civil nuptials are to be placed before the nuptial blessing."

Nevertheless, they cannot approach the civil magistrate with the intention of attempting to contract a true matrimonial covenant before him; rather, they must wish merely to place their union under civil protection and reserve the intention of celebrating marriage for the day or hour at which they express consent before the minister of the Church.

Moreover, insofar as it can be done, they will impede civil divorce and defend the rights of the Church over the marriages of baptized persons.

286. - It is disputed whether or not, in regions where the civil law has introduced divorce, it is lawful for magistrates to apply that law to parties petitioning for it, so that judges render a sentence for divorce and officials designated by law, for example, syndics, assist at new nuptials. In this controversy, the influence of local circumstances appears not inconsiderable. For approved authors who write in Italy or in a region which is free from a law of divorce are accustomed to answer more severely than inhabitants of regions where such a law has been received into custom. Nor ought we to wonder at this. Where that law does not exist, Catholic writers must strive by every effort, and by the very severity of their reprobation, that it not be introduced; but where it is so established that no hope of suppressing it shines forth, they are more solicitous about the possible manner in which good magistrates can both remain such and discharge their office. Yet even those who defend the stricter position, if they speak moderately, for example, the Most Illustrious Dr. Rosset ², acknowledge that the opinion which denies the intrinsic unlawfulness of the cooperation of a magistrate is defended by distinguished patrons. Cardinal Gasparri, who nevertheless professes that he inclines toward the stricter position, says that not a few prelates who are learned, pious, prudent, and most devoted to the Apostolic See, in Germany, England, America, and France, "retain the more benign opinion, whether in theory or in practice, at least as probable ³." And he alleges Lehmkuhl (II, 921, note) as the principal author of that opinion.

² De sacramento matrimonii, vol. 6, no. 4084.

³ De matrimonio, vol. 2, no. 1554.

To say what we think, this question does not have a universal solution.

For the law of divorce itself - just like the law of civil marriage itself, which we judge worse because it contains a more open profanation of marriage itself, because its use is more daily and necessary for most persons, and because it at least remotely prepares the law of divorce itself - can, according to a diverse intention and diverse circumstances, be a law of positive approval and concession or a law of mere permission or toleration; and it can intend to concern true marriage or only a legal institution. Wherefore, the very principle from which the absolutely stricter authors proceed now wavers: "The law is intrinsically evil." And a consideration of no little weight arises against them from the fact that, before our age, several supreme doctors regarded the law concerning a bill of repudiation as merely permissive and therefore not evil ⁴; and that Barbosa ⁵ and Sanchez ⁶ excused, as merely permissive, the laws by which Christian emperors did not refuse complete divorce. Moreover, even an evil law can gradually change its meaning through jurisprudence, so that a sentence of divorce and applications of the law are understood as mere toleration. And thus the minor premise of the syllogism which the stricter authors oppose to the more benign authors also wavers: "The practical application of an evil law is also evil." For this reason, and also with scandal taken into account, a recent law must be distinguished from an old one. It can happen that a new law must be resisted with every force, in order to inculcate right principles and to try whether perhaps it can be abrogated, while, when a hope of this kind has been removed and the principles have been established, a milder response can be given concerning necessary cooperation. Wherefore, we readily reconcile the stricter response of the Holy Office, which was issued for France soon after the new law of divorce (May 27, 1886), with the response by which the Holy See declared (September 14, 1886) that nothing in the condition of Belgium had been changed by this response. This response signifies at least that no universal force is present in the declaration for France, so that no judgment concerning the application of the law in Belgium was pronounced ⁷. And rightly so, since the judgment can vary.

⁴ Cf. the note of Wernz which is altogether to be pondered, vol. 4, note 115 to no. 750.

⁵ On the Digest, title Soluto matrimonio, etc. (book 24, title 3), rubric 2, part beginning at no. 10.

⁶ De matrimonio, book 10, disputation 1, no. 12.

⁷ We prefer this simple and reasonable interpretation to the subterfuge of others who see there merely a "diplomatic" response. Alleged subtleties in moral matters rather offend the pious ears of the Christian people. Moreover, the responses of the Holy Office given for Switzerland on April 3, 1877, and for France on July 26, 1887, confirm that peculiar circumstances were considered in the responses of the Holy See.

But Catholic judges will endeavor to lead the parties toward better counsels, nor will they themselves inconsiderately treat such grave causes as though they were light matters.

Nor is it repugnant that, in circumstances which contain no approval of an adulterous marriage, a civil magistrate, compelled by law to act in this manner unless he prefers to resign his office, should for a reason of public policy assist at the civil marriage of those who omit the essential solemnity prescribed by the canons, or who, indeed, because of a prior covenant, are unable to contract marriage validly. Cf. what Cardinal Gasparri wrote, op. cit., nos. 1530-1533, and Lehmkuhl, II, 952, note 1. Palmieri, vol. 6, no. 530, responds more severely concerning this case, though in nos. 519-531 he not obscurely favors the more benign opinion concerning a judgment of divorce.

287. - Since advocates, or patrons of causes, represent the parties, they cannot defend causes of divorce unless the parties themselves are permitted to institute the action. Nor are they excused of themselves by any obligation of the civil law, since it is in their power to decline causes. Indeed, even those newly admitted to the bar who conduct causes under the direction of a senior advocate (les stagiaires) cannot be compelled to undertake the defense of any cause against their conscience. It can happen, however, that the errors of the laity and the excessive benignity of priests have brought it about that an excuse in causes of divorce is not admitted. The matter must be evaluated from the fact. Certainly, for causes similar to those for which Catholic magistrates are permitted to do this, advocates are not prohibited from cooperating materially in civil divorce. Génicot therefore writes well: "But if, in a case that is indeed very rare, an advocate could not decline a suit of this kind without suffering a most grave harm, for example, exclusion from the roll of advocates, the cooperation could be excused, provided that it is not requested in contempt of religion." Theologia moralis, II, 562, 2°.

The same is to be said of procurators (avoués) as of patrons of causes.

288. - In order to avert greater evils which cannot otherwise be avoided, it will sometimes be lawful for the Catholic party himself or herself, where the remedy of separation is not sufficient, to petition for civil divorce: for example, lest adulterine offspring be imputed to an innocent husband; lest afterward, with immense harm, divorce be pronounced against an innocent party who has obtained a sentence of separation. But the civil forum is not to be approached by the Catholic party in this matter before the local Ordinary has given permission.

289. - Theologians and priests must conduct themselves in these matters with the greatest prudence: lest, by excessive severity and with the greatest common harm, they make civil public life inaccessible to Catholics; lest, by excessive subtlety, they ascribe to the Holy See diplomatic subterfuges and ambiguities which, in moral matters, a certain common sense of honesty seems to reject, so that explanations of this kind give rise to no slight scandal; lest, through excessive benignity or ignorance of principles, they indiscriminately permit to everyone what can be granted to a few only for grave causes, and, by thus conniving, be the cause why most grave errors concerning civil marriage and divorce grow strong in the state.