Catholic Attorneys and Divorce?

As a Catholic attorney this particular issue hit home with me. As many people know our law practice has struggled economically and with that many suggested that I start doing divorce work, in order to bring in more money. I began to contemplate, research Church teaching, and pray about it; however, in my prayer, it really struck me as hypocritical and wrong for a Catholic attorney to assist in divorce and the destruction of the sacred sacrament of marriage that divorce brings about. But I began to think and rationalize, well we are in a difficult financial situation, so maybe it would be OK. Then the scripture verse that one "cannot serve both God and Mammon" came to mind. I knew I could not "sell out" to the world as God made it clear to me that I had to trust Him and His Church. And so we declined to start divorce work and we humbly submitted ourselves, our marriage, our finances, our law practice to Our Lord Jesus Christ and His Church under the authority of His Vicar, the Holy Father, and the Bishops in communion with him.

In my above mentioned research of the issue of Catholic attorneys and divorce, I discovered the teaching our late Holy Father, Blessed John Paul II. I presented this teaching to the Moderator of the Curia for the Bishop of Marquette and asked for some definitive guidance that could be presented to Catholic attorneys. Here is his memo in its entirety:

Kevin:

A question has come to me asking if it is morally permissible for a Catholic lawyer to practice divorce law.  Could you please have this memo dispersed among the local civil lawyers and any others that you think will benefit from this information.  Thank you.

Fr. Ron Browne

MEMORANDUM

To: Catholic civil lawyers

From: Father Ronald T. Browne, Moderator of Curia, Diocese of Marquette

Date: September 28, 2011

Re: Catholic civil lawyers and divorce cases

After Blessed Pope John Paul II’s January 2002 address to the Roman Rota (the highest court in the Catholic Church) the question has often been raised about Catholic civil lawyers and the handling of divorce cases.  In Blessed Pope John Paul II’s 2002 annual address to the Roman Rota the Holy Father said the following near the end of the address: 

On the other hand, professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce.  For judges this may prove difficult, since the legal order does not recognize a conscientious objection to exempt them from giving sentence.  

For grave and proportionate motives they may therefore act in accord with the traditional principles of material cooperation.  But they too must seek effective means to encourage marital unions, especially through a wisely handled work of reconciliation.  

Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce.  They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order (cf. Catechism of the Catholic Church, n. 2383).  In this way, with their work of assisting and reconciling persons who are going through a marital crisis, lawyers truly serve the rights of the person and avoid becoming mere technicians at the service of any interest whatever.

In the Holy Father’s comments he says that professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce.  The Pope then speaks specifically about lawyers and states that they should always decline the use of their profession for an end that is contrary to justice, as is divorce.  Blessed Pope John Paul II however, then permits lawyers to cooperate in divorce cases when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order (cf. Catechism of the Catholic Church, n. 2383).  Since the Holy Father cites the Catechism we need to see exactly how paragraph 2383 reads to understand when Catholic lawyers can cooperate in civil law cases involving divorce.  Paragraph 2383 of the Catechism reads: 

The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law.¹⁷⁷  If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.

Footnote 177 in paragraph 2383 refers to the Code of Canon Law, canons 1151 to 1155, which read:

De separatione manente vinculo

Canon 1151 - Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them.

Canon 1152 - § 1.  It is earnestly recommended that a spouse, motivated by christian charity and solicitous for the good of the family, should not refuse to pardon an adulterous partner and should not sunder the conjugal life.  Nevertheless, if that spouse has not either expressly or tacitly condoned the other's fault, he or she has the right to sever the common conjugal life, provided he or she has not consented to the adultery, nor been the cause of it, nor also committed adultery.

§ 2.  Tacit condonation occurs if the innocent spouse, after becoming aware of the adultery, has willingly engaged in a marital relationship with the other spouse; it is presumed, however, if the innocent spouse has maintained the common conjugal life for six months, and has not had recourse to ecclesiastical or to civil authority.

§ 3.  Within six months of having spontaneously terminated the common conjugal life, the innocent spouse is to bring a case for separation to the competent ecclesiastical authority.  Having examined all the circumstances, this authority is to consider whether the innocent spouse can be brought to condone the fault and not prolong the separation permanently.

Canon 1153 - § 1.  A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a lawful reason to leave, either by a decree of the local Ordinary or, if there is danger in delay, even on his or her own authority.

§ 2.  In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority.

Canon 1154 - When a separation of spouses has taken place, appropriate provision is always to be made for the due maintenance and upbringing of the children.

Canon 1155 - The innocent spouse may laudably readmit the other spouse to the conjugal life, in which case he or she renounces the right to separation.

According to Canon Law and the Catechism there are times when the separation of the spouses is morally permissible and condoned.  In certain civil law systems such a separation, with the appropriate protections for the innocent spouse and any children, can only be accomplished if a divorce is pursued and granted.  However, according to what Blessed Pope John Paul II said in his address, a Catholic lawyer could only assist in this type of civil divorce case if the intention of the client, (the innocent spouse) is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process.  Therefore, it appears that it is morally permissible for a Catholic lawyer to accept a divorce case if the intent of the client is not to dissolve the marriage but to use the divorce proceedings for legal protections; there must be a willingness on the client’s side to work on reconciling with his or her spouse, (and some sign of intent to reconcile must be present, such as joint counseling or monitored communication between the spouses).  It is not morally permissible though for a Catholic lawyer to accept any and all divorce cases. 

“Catholic Answers” (a Catholic apologetic source) responded to questions concerning Catholics and divorce as follows:

Q: What is the Church’s view on marriage when a Catholic adulterous husband has filed for divorce against an innocent spouse of 17 years?  A: Civil divorce, under certain circumstances, may not be a bad thing. The Catechism of the Catholic Church explains, "The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law (see CIC 1151-1155). If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense" (CCC 2383). However, civil divorce will not dissolve the marriage. The wife would not be free to remarry unless the first marriage is declared null or until her husband dies.

Q: Is it a sin to divorce a spouse who has been physically abuse to their spouse and children for over 10 years?  A: No, it is not a sin to divorce such a spouse. The Code of Canon Law states: A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a reason to leave, either by a decree of the local ordinary [e.g., bishop] or, if there is danger in delay, even on his or her own authority. (CIC 1153)  The canon does go on to state that once such a danger has passed, common life should be restored, but given the unique difficulties of abuse cases (e.g., promises to reform are all too often broken), an abused spouse may wish to allow an independent specialist such as a priest or a psychologist to determine if and when it is safe to resume common life.  The Church considers civil divorce in such cases to be the ecclesial equivalent of a legal separation and tolerates civil divorce sought for just cause (such as to ensure personal safety and/or the safety of children) to settle estate and child custody arrangements. The divorced person is still considered validly married and may not remarry in the Church unless and until an annulment is granted.

From the above information it can be concluded that it is morally permissible for a Catholic lawyer to practice divorce law in special cases/circumstances.  Now, this is looking at the situation from that of representing the plaintiff in a divorce case.  In the case of a Catholic lawyer representing the defendant in a divorce suit, it appears that it would definitely be morally permissible to represent someone who is not seeking the divorce and needs the legal protection for the sake of any children, child support, finances and/or inheritance concerns.  Of course, even in representing the defendant avenues of any possible counseling/reconciliation have to be inquired into and pursued if there is any opening to such counseling/reconciliation.