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Civil Divorce and Remarriage

Civil Divorce and Remarriage

Question:

  1. Is civil divorce allowed for Catholics?
  2. Is civil remarriage allowed for Catholics?

Answer:

All Catholics are obliged to strictly follow the laws of the Catholic Church regarding marriage.

One should keep in mind that civil divorce as complete dissolution of a consummated marriage between Catholics has no effect before God and is not allowed by God’s and the Church’s laws, and that civil authorities have no right of dissolving marriage between Catholics. The State has authority over the marriage of Catholics only with regard to the merely civil effects (e.g., property rights, testamentary rights). The State cannot establish impediments, etc.

The marriages of baptized non-Catholics are also subject to ecclesiastical legislation.

The marriage of unbaptized persons is subject to the State.

Separation must be distinguished from divorce in the proper sense. Married Catholics are bound to live together unless they have a just cause for separation. In certain cases a man and a woman validly married in the Catholic Church and mutually used the right on the bodies of each other, only have the right for a limited divorce (separation), either forever or a certain time.

However they have no right of remarrying with other persons either in the Church or in the state.

If due to some causes (Canons 1128-1132) the Church Hierarchy allows the faithful to get civil divorce, their marriage still remains intact. Such divorce has only civil effects - e.g., separation from bed and board - but it has no effect before God. Before a married Catholic sues for a civil divorce he should obtain permission of the ecclesiastical authorities and promise in writing that he intends only to procure its civil effects.

When after a limited divorce (separation) permitted by the Church or a civil divorce, one or both spouses enter into a civil marriage with another persons, such new marriages will be invalid and unlawful, and spouses will be guilty of adultery. Such Catholics are not permitted to receive Holy Communion and other Sacraments while they are in a state of sin. They must definitely end their sinful cohabitation, and only can be admitted to the Sacraments after ending the sin and sincere confession.

Fictitious civil divorces and remarriages are also prohibited for Catholics because they are fraudulent in nature and provoke one or both parties to commit mortal sin. According to Moral Theology “actions which are wrong in themselves may never be done to avoid scandal”.

Fr. Valerii

Here quotations follow:

A COMMENTARY ON THE NEW CODE OF CANON LAW
By THE REV. P. CHAS. AUGUSTINE, O.S.B., VOLUME V:

CAN. 1016
Baptizatorum matrimonium regitur iure non solum divino, sed etiam canonico, salva competentia civilis potestatis circa mere civiles eiusdem matrimonii effectus.


The Marriage of baptized persons is governed not only by the divine law, but also by canon law, with due regard to the competency of the civil power concerning the merely civil effects of Matrimony.

Note the two powers mentioned in the text: the ecclesiastical and the civil, and remember that the text says, baptizatorum matrimonium, the marriage of baptized persons. The Church therefore claims jurisdiction over the Marriages of baptized persons.

...As the sacramental character of marriage cannot be separated from the underlying natural contract, and as all strictly spiritual matters, such as the Sacraments, belong to the exclusive sphere of ecclesiastical legislation, the Church logically claims full and unhampered power over the Marriages of baptized persons. As these persons (Cfr. Trid., sess. 7, can. 7; can. 8, de baptismo) are themselves, by reason of valid Baptism, subject to the Church, it is evident that she has a legal right to regulate their matrimonial union.

CAN. 1128
Coniuges servare debent vitae coniugalis communionem, nisi iusta causa eos excuset.


Married people are bound to live together unless they have a just cause for separation.

This follows mainly from the secondary purpose of marriage, i.e., mutual help, which requires a common dwelling-place. However, there may be weighty reasons that excuse from conjugal cohabitation. The Council of Florence (1439-1442) maintained the indissolubility of marriage against the Greeks, but admitted separation for reason of adultery (Decrctum pro Armenis, Denringer, I. c., n. 597). The Council of Trent declared that such a separation was permissible either forever or for a certain time (Sess. 24, can. 8, de sacr. mat.). But the reason must be one which an ecclesiastical judge will acknowledge as canonical and which would justify him in pronouncing sentence of separation. This also obtains when a baptized person has contracted marriage with an unbeliever, with a dispensation from disparity of worship, and the latter proves to be an adulterer (S. O., July 4, 1855 (Coll.. n. 1114).

Separation must be duly distinguished from divorce in the proper sense. The latter generally implies dissolution of the matrimonial bond. Such a dissolution is possible only, as the preceding canons have enacted, in cases of marriage contracted between baptized persons and not yet consummated, if either solemn religious profession is made, or a papal dispensation obtained. A legitimate marriage which has been duly consummated can be dissolved by the application of the Pauline privilege. Separation leaves the marriage bond intact.(1)

THE SOURCES OF CATHOLIC DOGMA
by Henry Denzinger:

1865 Civil Divorce (ASS 22 (1889/90) 635 f.)

[From the Decree of the Holy Office, May 27, 1886]

The following questions were raised by some Bishops of France to the inquisition S.R. et U.: "In the letter S.R. et U. I. of June 25th) 1885, to all the ordinaries in the territory of France on the law of civil divorce it is decreed thus: "Considering very serious matters, in addition to times and places, it can be tolerated that those who hold magistracies, and lawyers who conduct matrimonial cases in France, without being bound to cede to the office," and it added conditions, of which the second is this: "Provided they are so prepared in mind not only regarding the dignity and nullity of marriage, but also regarding the separation of bodies, about which cases they are obliged to judge, as never to offer an opinion or to defend one to be offered, or to provoke or to incite to that opinion which is at odds with divine and ecclesiastical law."

It is asked:

I. Whether the interpretation is right which is widespread throughout France and even put in print, according to which the judge satisfies the above mentioned condition, who, although a certain marriage is valid in the sight of the Church, ignores that true and unbroken marriage, and applying civil law pronounces that there is ground for divorce, provided he intends in his mind to break only the civil effects and only the civil contract, and provided the terms of the opinion offered consider these alone? In other words, whether an opinion so offered can be said not to be at odds with the divine and ecclesiastical law?

II. After the judge has pronounced that there is ground for divorce, whether the syndic (in French: le maire), intent also upon only the civil effects and the civil contract, as is explained above, can pronounce a divorce, although the marriage is valid in the eyes of the Church.

III. After the divorce has been pronounced, whether the same syndic can again join a spouse who strives to enter into other nuptials in a civil ceremony, although the previous marriage is valid in the eyes of the Church and the other party is living?

The answer is:

In the negative to the first, the second,(1) and the third.

(1) But the response of the Holy Penitentiary, given on the 24th day of September, 1887, is worthy of note, according to which it is permitted also for France in a particular case that, after the civil judges have pronounced that there is ground for divorce, the syndic, who would otherwise be ejected from office, pronounced the civil divorce, provided 1) that "he profess publicly the Catholic doctrine on matrimony and on matrimonial cases which pertain to ecclesiastical judges only, and provided, 2) in the opinion itself, and as a magistrate speaking in public he declare that he can consider only the civil effects and only the civil contract, that otherwise the bond of matrimony remains entirely firm in the sight of God and conscience" (Revue de sciences eccles., Ambien. 60, 476).(2)

Moral Theology
by Rev. Heribert Jone:

Actions which are wrong in themselves may never be done to avoid scandal.

659. – 4. Ecclesiastical or civil marriage, according as the marriage is contracted before the Church or civil authorities.

Since Catholics cannot validly marry before a civil magistrate, any civil ceremony is for them a mere formality observed at most only to share in the merely civil effects of marriage. Wherefore, Catholics may not conduct themselves as married people before they are married in the Church, and still less may they rest satisfied with a civil ceremony alone.

660. – III. Matrimonial Jurisdiction.

1. As to marriage baptized persons are subject to the exclusive jurisdiction of the Church, since their marriage is always a Sacrament (Cf. 657).

Therefore, unless otherwise stated, the marriages of baptized non-Catholics are also subject to ecclesiastical legislation. The State has authority over the marriage of Catholics only with regard to the merely civil effects of marriages (e.g., property rights, testamentary rights). The State cannot establish impediments, etc., for them.

2. The marriage of unbaptized persons is subject to the State.

Therefore, the State may determine impediments for the unbaptized provided they are not contrary to the natural or positive divine law. The bond of such marriage cannot be dissolved by the State, since this is forbidden in the New Testament by positive divine law to which the unbaptized are also subject (Cf. 50). – The Church has no jurisdiction over such marriage. Hence, Jews and neo-pagans are not bound by the matrimonial legislation of the Church.

766. N.B. Catholics and the Civil Law.

Most states not only recognize the right of separation, but also complete dissolution of the marriage bond, even though it be a consummated marriage between Christians. Such a “divorce” has no effect before God.

A suit for the complete divorce of validly married persons is not allowed even though the plaintiff has no intention of remarrying. Such a suit would give the divorced person an opportunity to remarry invalidly. Such procedure is lawful only when one cannot otherwise obtain certain civil effects to which he has a right (e.g., separation from bed and board), provided he had no intention of remarrying. Before one sues for divorce he should obtain permission of the ecclesiastical authorities and promise in writing that he intends only to procure its civil effects.

A Catholic judge who by reason of his office must accept a divorce case may, according to a probable opinion, co-operate in granting the divorce, since he may consider the divorce a mere civil formality like civil marriage itself. The judge must avoid scandal as far as possible and remind the Catholic parties of the law of the Church. The Holy See at times has passed strict regulations for special cases of scandal.

A Catholic attorney may not accept an unlawful divorce suit. If appointed to give gratuitous legal service to the poor, that which was said of the judge also applies to him. – Likewise, Catholic lawyers may take part in a divorce suit when the interest of religion is at stake. This obtains if there is hope that the parties will have recourse to Catholic attorney and these in many instances can bring about a reconciliation. Scandal must be avoided as far as possible.(3)

THE CATHOLIC ENCYCLOPEDIA, VOL. V:

The Catholic doctrine on divorce may be summed up in the following propositions: A. In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated; B. Non-Christian marriage can be dissolved by absolute divorce under certain circumstances in favour of the Faith; C. Christian marriage before consummation can be dissolved by solemn profession in a religious order, or by an act of papal authority; D. Separation from bed and board (divortium imperfectum) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife.

…The inadmissibility of absolute divorce was ordained by Christ Himself according to the testimony of the Apostles and Evangelists: "Whosoever shall put away his wife and marry another, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery" (Mark, x, 11, 12., Cf. Matt., xix, 9; Luke, xvi, 18). In like manner, St. Paul: "To them that are married, not I but the Lord commandeth, that the wife depart not from her husband. And if she depart, that she remain unmarried, or be reconciled to her husband. And let not the husband put away his wife" (I Cor., vii, 10, 11). In these words Christ restored the original indissolubility of marriage as it had been ordained by God in the Creation and was grounded in human nature. This is expressly stated by Him against the Pharisees, who put forward the separation allowed by Moses: "Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so" (Matt., xix, 8); "He who made man from the beginning, made them male and female. And he said: For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder" (Matt., xix, 4-6). The indissolubility of all marriage, not merely of Christian marriage, is here affirmed. The permanence of marriage for the whole human race according to natural law is here confirmed and ratified by a Divine positive ordinance.

No Catholic can doubt that even according to the natural law marriage is in a certain sense indissoluble. The following proposition is condemned in the Syllabus of Pius IX (Proposition LXVII): "According to the natural law, the bond of marriage is not indissoluble, and in certain cases divorce in the strict sense can be sanctioned by civil authority." The meaning of this condemnation is clear from the document whence it has been taken. This is the papal Brief ("Ad apostolicae sedis fastigium", 22 August, 1851, in which several works of the Turin professor, J. N. Nuytz, and a series of propositions defended by him were condemned, as is expressly said, "de Apostolicae potestatis plenitudine". A certain indissolubility of marriage whenever contracted must therefore be admitted, even according to the natural law, at least in the sense that marriage, unlike other contracts, may not be dissolved at the pleasure of the contracting parties. Such dissolubility would be in direct contradiction with the essential purpose of marriage, the proper propagation of the human race, and the education of the children. That in exceptional cases, in which continued cohabitation would nullify the essential purpose of marriage, the dissolution may nevertheless not be permitted, can hardly be proved as postulated by the natural law from the primary purpose of marriage. However, even such dissolubility would not be in accord with the secondary purposes of marriage, and it is therefore regarded by St. Thomas (IV Sent., dist. xxxiii, Q. ii, a. 1) and most Catholic scholars as against the secondary demands of the natural law. In this sense marriage, considered merely according to the natural law, is intrinsically indissoluble. That it is also extrinsically indissoluble, i. e. that it cannot be dissolved by any authority higher than the contracting parties, cannot be asserted without exception. Civil authority, indeed, even according to the natural law, has no such right of dissolving marriage. The evil consequences which would follow so easily, on account of the might of passion, in case the civil power could dissolve marriage, seem to exclude such a power; it is certainly excluded by the original Divine positive law: "What therefore God hath joined together, let no man put asunder" (Matt., xix, 6). However, that part of the proposition condemned by Pius IX, in which it is asserted, "And in certain cases divorce in the strict sense can be sanctioned by civil authority", need not necessarily be understood of marriage according to the purely natural law, because Nuytz, whose doctrine was condemned, asserted that the State had this authority in regard to Christian marriages, and because the corresponding section of the Syllabus treats of the errors about Christian marriage. [Cf. Schrader, Der Papst und die modernen Ideen, II (Vienna, 1865), p. 77.](4)

References:

(1) A COMMENTARY ON THE NEW CODE OF CANON LAW, By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D., Professor of Canon Law, BOOK III, De Rebus, or Administrative Law, VOLUME V, Marriage Law (can. 1012-1143), Matrimonial Trials (can. 1960-1992), SECOND, REVISED EDITION, B. HERDER BOOK CO., 17 SOUTH BROADWAY, ST. Louis, Mo. AND 68 GREAT RUSSELL ST., 1920, Cum Permissu Superiorum, NIHIL OBSTAT: Sti. Ludovici, die 14. Jan. 1920. F. G. Holweck, Censor Librorum, IMPRIMATUR: Sti. Ludovici, die 15. Jan. 1920. +Joannes J. Glennon, Archiepiscopus Sti. Ludovici, Printed in USAp. 369-370

(2) THE SOURCES OF CATHOLIC DOGMA, Translated by Roy J. Deferrari from the Thirtieth Edition of Henry Denzinger's Enchiridion Symbolorum, Nihil Obstat: Dominic Hughes, O.P. Censor Deputatus., Imprimatur: +Patrick A. O'Boyle Archbishop of Washington, April 25, 1955, Printed in the United states of America, p. 466-467

(3) Moral Theology, by Rev. Heribert Jone, O.F.M. CAP., J.C.D., by Rev. Urban Adelman, O.F.M. CAP., J.C.D., The Mercier Press Limited, Cork, Ireland, Nihil Obstat: PIUS KAELIN, O.F.M. CAP, Censor Deputatus, Imprimi Potest: VICTOR GREEN, O.F.V. CAP., Provincial, July 2, 1955, Nihil Obstat: RICHARD GINDER, S.T.I., Censor Librorum, Imprimatur: JOHN FRANCIS DEARDEN, D.D., Bishop of Pittsburg, August 15, 1955, Printed in the United states of America, p. 86, 468, 469, 546-547

(4) THE CATHOLIC ENCYCLOPEDIA, AN INTERNATIONAL WORK OF REFERENCE ON THE CONSTITUTION, DOCTRINE, DISCIPLINE AND HISTORY OF THE CATHOLIC CHURCH EDITED BY CHARLES G. HERBERMANN, Ph.D., LL.D., EDWARD A. PACE, Ph.D., D.D., CONDE B. PALLEN, Ph.D., LL.D., THOMAS J. SHAHAN, D.D., JOHN J. WYNNE, S.J., ASSISTED BY NUMEROUS COLLABORATORS, IN FIFTEEN VOLUMES, VOLUME V, p. 55, New York ROBERT APPLETON COMPANY, Nihil Obstat: May 1, 1909, REMY LAFOET, CENSOR, Imprimatur: +JOHN M. FARLEY, ARCHBISHOP OF NEW YORK
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