Tuesday, September 1, 2009

re: "Should Couples Get Bishop's Permission to Separate?" (Our Sunday Visitor, 5/24/09)

In the above article, Emily Stimpson asks a provocative question: "If divorce is, as the Catechism of the Catholic Church states, 'a 'grave offense against the moral law,' why isn't the Church doing more to stop it?" According to the article, Canons 1151-1155 and Canons 1692-1696 are interpreted in some places as meaning that permission of the bishop is ordinarily & explicitly required for spouses to separate....

  • "Art. 2.
    Can. 1151 Spouses have the duty and right to preserve conjugal living unless a legitimate cause excuses them.
    Can. 1152 §1. Although it is earnestly recommended that a spouse, moved by Christian charity and concerned for the good of the family, not refuse forgiveness to an adulterous partner and not disrupt conjugal life, nevertheless, if the spouse did not condone the fault of the other expressly or tacitly, the spouse has the right to sever conjugal living unless the spouse consented to the adultery, gave cause for it, or also committed adultery.
    §2. Tacit condonation exists if the innocent spouse has had marital relations voluntarily with the other spouse after having become certain of the adultery. It is presumed, moreover, if the spouse observed conjugal living for six months and did not make recourse to the ecclesiastical or civil authority.
    §3. If the innocent spouse has severed conjugal living voluntarily, the spouse is to introduce a cause for separation within six months to the competent ecclesiastical authority which, after having investigated all the circumstances, is to consider carefully whether the innocent spouse can be moved to forgive the fault and not to prolong the separation permanently.
    Can. 1153 §1. If either of the spouses causes grave mental or physical danger to the other spouse or to the offspring or otherwise renders common life too diYcult, that spouse gives the other a legitimate cause for leaving, either by decree of the local ordinary or even on his or her own authority if there is danger in delay.
    §2. In all cases, when the cause for the separation ceases, conjugal living must be restored unless ecclesiastical authority has established otherwise.
    Can. 1154 After the separation of the spouses has taken place, the adequate support and education of the children must always be suitably provided.
    Can. 1155 The innocent spouse laudably can readmit the other spouse to conjugal life; in this case the innocent spouse renounces the right to separate" <http://www.vatican.va/archive/ENG1104/__P45.HTM>.

    Can. 1692 §1. Unless other provision is legitimately made in particular places, a decree of the diocesan bishop or a judicial sentence can decide the personal separation of baptized spouses according to the norm of the following canons.
    §2. Where an ecclesiastical decision has no civil effects or if a civil sentence is not contrary to divine law, the bishop of the diocese of the residence of the spouses, after having weighed the special circumstances, can grant permission to approach the civil forum.
    §3. If a case concerns only the merely civil effects of marriage, the judge, after having observed the prescript of §2, is to try to defer the case to the civil forum from the start.
    Can. 1693 §1. Unless a party or the promoter of justice requests the ordinary contentious process, the oral contentious process is to be used.
    §2. If the ordinary contentious process has been used and an appeal is proposed, the tribunal of second grade, observing what is required, is to proceed according to the norm of can. 1682, §2.
    Can. 1694 The prescripts of can. 1673 are to be observed in what pertains to the competence of the tribunal.
    Can. 1695 Before accepting the case and whenever there is hope of a favorable outcome, the judge is to use pastoral means to reconcile the spouses and persuade them to restore conjugal living.
    Can. 1696 Cases concerning the separation of spouses also pertain to the public good; therefore the promoter of justice must always take part in them according to the norm of can. 1433"

Stimpson also makes reference to an unsettling March 2009 letter, which has been sent to the Pontifical Council for the Interpretation of Legislative Texts:

  • "We find the local church has a policy to make virtually no mention of the canon laws for separation of spouses (1151-1155, 1692-1696). The faithful are commonly taught that the church has no objection to divorce, only remarriage without annulment....
  • "The Catechism states that divorce is [a] plague on society, is immoral & a grave offense against nature, & is only allowable in certain circumstance citing canon law....
  • "It appears that following canon 1692, and seeking the local ordinary's permission before approaching the civil divorce court, would save marriages and prevent immoral separation and scandal" <www.marysadvocates.org/eventsnews/romanreplies/romanreplies2009.html>

According to Stimpson, Canons 1151-1155 and 1692-1696 "set the terms for when and how Catholic spouses can separate from one another. Essentially, they say that before a husband or wife heads to the divorce court, they first need to head to their bishop....In some countries, such as Nigeria, those canons remain in force." While apparently agreeing that the Canons call for a bishop's permission to separate, noted Canon lawyer Edward Peters - for EXTREMELY unclear reasons - seems reticent about this being applied in the United States. But, aren't we talking about the UNIVERSAL Code of Canon Law?

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