Father John A. Hardon, S.J. Archives

Moral Theology

Chapter VIII
Divorce

by John A. Hardon, S.J.

The most critical feature of American family life is its instability. The United States has the largest divorce rate of any major country in the world, with an estimated four hundred thousand divorces now granted every year. Except for temporary declines during periods of recession, there has been a steady upward trend, to the point that in some large cities the prospects of a marriage ending in the divorce courts are better than one in two. Yet even this is not the whole picture because over a million couples at any given time are known to be living apart, either because they already have a divorce, or applied for one, or separated by mutual agreement with no intention of coming together again.

Few aspects of marriage have been written about more extensively than its breakdown through legal separation, yet the analysis for the most part has been descriptive rather than critical. Sociologists and others commonly look upon marriage as a purely secular affair, with social dimensions indeed but not basically religious. The result is much diagnosis but no claims to any effective remedy for the most serious blight on the American way of life. If argument were needed for the importance of religion in morality, we have it here in the problem of divorce, where the cleavage between borrowed ideals and actual practice is so tragic in consequences for the people themselves, for their children, and for the future of the nation. Human nature is too weak and human passions too strong to cope with the drive to independence and freedom, which lie at the root of divorce, without powerful support from religious values and motivation.

Historical Background

Almost all peoples have recognized divorce in some form or another, but the conditions under which it was granted have varied widely. The oldest divorce regulations of which we have certain record are those in the code of morals formulated under the Babylonian king Hammurabi, who ruled from 1728 to 1786 B.C. They provided that a man might divorce his wife at will without stating a reason. In the Roman Empire from the first century before Christ to the Edict of Constantine (313 A.D.), the State looked upon marriage as a private affair, where the contract was created simply and entirely by the mutual consent of the marrying parties. No civil ceremony was required, and therefore the marriage bond could be broken by a corresponding mutual consent between husband and wife. It is true the Roman law suggested that a man dismiss his wife in the presence of seven witnesses to protect his reputation, but this was not legally prescribed and therefore not much observed.

Among the Jews at the time of Christ a man could divorce his wife by offering her a bill of divorce. He was then free to marry someone else if he chose. The exact conditions on which absolute divorce (with the right to remarry) was granted were in dispute. According to Deuteronomy (14:1) a husband was allowed to divorce his wife because of "a matter of shame," but the rabbis did not agree on just what this meant. The Shammaites interpreted the text of Moses to mean that only adultery allowed separation and possible remarriage; but the Hillelites said the same could refer to almost anything which displeased the husband.

Modern Jews mostly prefer the lenient opinion of Hillel, and even allow the wife to ask for a divorce, while still favoring the husband who is considered the master of the household. Among Orthodox Jews, the rabbis grant the bill of divorce, Get, whose conditions differ according to circumstances, and are often specified already at the time of marriage, at least to the extent that the husband on his wedding day agrees to support his wife and specifies to give her alimony in case of divorce.

Mohammed (570-632) allowed his followers to practice polygamy, up to four wives for the commoners and Sultans up to nine. Consistently, therefore, divorce by the husband's repudiation of his wife is a privilege granted in the Koran. No intervention by any judicial authority is needed, nor any reasons or justification given, but only a certificate of divorce handed to the wife. However the husband must wait four months before actually dismissing his wife, meantime not cohabiting with her. After a first repudiation the wife may not remarry for a least three months, during which she may be taken back without a further contract. The same holds after a second repudiation. But a third repudiation is irrevocable, unless the woman has in the meantime married and been divorced by another man. An ancient custom allows a triple repudiation at one and the same time, with corresponding effect on irrevocability.

A Moslem woman's right to divorce her husband is highly restricted. Otherwise than the man, she cannot repudiate her partner by declaration. One option is that the couple reach an agreement before marriage that the union may be dissolved on payment of compensation, which usually means the return of the wife's dowry. Some Islamic jurists claim that compensation is void if the reason for dissolving the marriage is cruelty by the husband. Another way open for the wife is to appeal to the courts for annulment, faskh, on such grounds as a husband's incurable disease or failure to support. Anticipating difficulties, Moslem women nowadays often insert a clause in the marriage contract, laying down certain stipulations which, when broken, oblige the husband to grant his wife a divorce. For centuries it was held that the stipulation forbidding a husband to marry another wife was invalid, since it is contradicted by the Koran. But more recently such contracts have been considered binding.

In Eastern Empire, from 311 to 1054 A.D., civil divorces were freely granted in the East, with no limitation, either to husband or wife, and for any one of many reasons like adultery, cruelty and incompatibility. The Emperor Justinian (527-565) eliminated divorce by mutual consent, but this did not reduce the number of civil divorces. The Greek Fathers of the Church frequently reminded Christians to obey God and not Caesar in this matter, yet they had little effect on the imperial attitude toward divorce in the Byzantine nations. And when Photius led the break of the Eastern Church from Rome, he accepted the position of Justinian, allowing divorce with the right to remarry. Since the time of the great Eastern Schism in 1054, civil divorce plus remarriage have been accepted by the Orthodox Churches not in communion with Rome.

In the Western Empire, from the Edict of Constantine to the Protestant Reformation two periods may be distinguished: an earlier conflict during which the Church fought vigorously the "usurpation of civil power," and the practical elimination by legal statute of remarriage after separation. Time and again the Councils and the Fathers insisted that among Christians the Church alone has rightful jurisdiction over marriage and its conditions. Finally in 800 A.D., Charlemagne recognized Canon Law as having force in the Holy Roman Empire. From his time to the beginning of the sixteenth century, the Church's rights over marriage were both recognized and honored. Absolute divorce among Christians was simply outlawed.

With the advent of the Reformation, a new principle became operative in the Western world. Luther and Calvin taught that marriage was a civil, non-sacramental affair, over which the State must exercise control. Yet the newly formed Protestant states were slow to act on this principle. In Germany and England, for example, the ecclesiastical courts continued to try marriage cases. Holland seems to have been the first to-popularize the civil-contract theory of marriage, which was officially adopted in England in 1653 with the Civil Marriage Act under Cromwell. It was the direct ancestor of modern divorce legislation in the English-speaking world. According to its provisions, matrimonial jurisdiction became vested in civil tribunals, and no longer in religious bodies. A civil ceremony in the presence of a justice of the peace was required for validity; later on the accustomed religious ceremony was "permitted." Consequently the administration of marital problems and the granting of divorce were placed in the hands of local judges or justices of the peace. Thus marriage was completely secularized.

With the restoration of the monarchy in England, the Civil Marriage Act was rendered inoperative, but it was partly reestablished in 1753, and in 1857 the Divorce Act finally transferred jurisdiction over marriage from ecclesiastical to civil tribunals. The Divorce Act allowed the dissolution of a marriage by decree: if the wife was the guilty party, adultery alone was sufficient, but if the husband was antagonist, adultery and cruelty or desertion were required. In 1937 other grounds for divorce were granted. Although the Church of England officially retained the ancient belief on marital indissolubility, divorces were granted by act of Parliament with the right to remarry. Episcopalians in the United States and elsewhere are more lenient and sanction (with reservations) a person's second or later marriage after civil divorce.

In the United States the first divorce was granted in Massachusetts in 1639. However divorces were rare in the early days, largely due to the English influence after the restoration of the monarchy. With American independence a radical change took place. Authentic records show that as far back as 1867, there were 9,937 divorces in that year, for a population of some thirty-seven million. In the last decade of the nineteenth century, there were 33,461 divorces, for a ratio of one to eighteen marriages in 1890, and 55,751 divorces in 1900, for an average of one to thirteen marriages. Since 1950, the divorce-marriage ratio has been about one to four, nationally, but this figure is deceptive because in the large cities the figures are much higher (three times as large) than in smaller communities - and urbanization is constantly on the increase in America..

The number of divorces in this country has always been the subject of criticism. As early as 1785, the president of Yale, Benjamin Trumbull, complained that "between twenty and thirty divorces are now granted annually by the Superior Court of Connecticut, besides those given by the General Assembly...If matters are suffered to run on in their present channel, shall we not soon become like the nations of the world before the giving of the law, when marriages were for moons or years as suited the party? Or will it not be as it was in Rome after divorces grew into fashion, that married people will separate at pleasure?" (1)

Since Trumbull's time, the number of absolute divorces granted by the courts has reached proportions that were never dreamed at the dawn of the Republic. The American divorce rate is six times that of Canada, Mexico and Scotland; four times that of Belgium, England and Norway; three times that of France, Switzerland and Australia; and more than twice the rate of Sweden and Japan.

Observers from outside the country are not the only ones who draw the obvious conclusion from these figures, that for a large part of the American people trial marriage is not a philosophic theory but a way of life. If a man or woman is not satisfied with the choice of a mate, they can always obtain a divorce and take another chance in the marital lottery.

For many people marriages are not intended to last for life but only as long as the parties remain compatible. In spite of a verbal agreement to the contrary, they do not contract marriages for life but until the next decree of divorce. Much has happened since the first break-through in English law, when no divorce was granted except by an act of the legislature. The modern situation where easy divorce is no longer an exception but the rule, has become possible only through grave changes by statute, judicial decision or local practice – based on modifications of four legal positions that for generations had been inviolate in the English-speaking legislative system.

1. Divorce could be granted only when a husband or wife were proved guilty of grave moral misconduct, to the point that their continued marital cohabitation became impossible.
   
   
2. No divorce was possible through the mere consent of the interested parties. No one could receive legal separation with the right to remarry simply because husband and wife decided to break up their union. Only bona fide fulfillment of certain conditions in the statute gave a couple the right even to institute divorce proceedings.
   
   
3. Only the injured or innocent party was ever granted a divorce. If both sides were guilty there was no question of a court recognizing legal grounds for sundering marriage.
   
   
4. Divorces would be granted only to authentic residents of a given State; therefore the law was not to be circumvented by creating a spurious domicile in order to guarantee or expedite divorce proceedings.

Each of these traditional conceptions of the American civil law with respect to divorce has been modified beyond recognition in the past forty years. In England under the jurisdiction of ecclesiastical courts, even a limited divorce (with no right to remarry) was granted only for such serious misconduct as would make married life practically impossible. Only two such conditions were recognized: proven adultery or "such cruelty as endangered the health or life of the complainant and rendered cohabitation unsafe." Occasional divorce grants for lesser reasons were a rare exception. But current practice in the United States dissolves marriages with the right to marry again, on grounds that reach the nadir of triviality. States are competing with another, trying to lure divorce cases to their side in much the same way that other states advertize their scenic beauty to attract tourists. By actual count, there are forty-three separate grounds for absolute divorce in this country.

The expansion of grounds for divorce is also due to the courts, who in the last analysis have to interpret what such words as "desertion, abandonment, mental cruelty" mean. In former days, for instance, no divorce would be granted for the practice of "mental cruelty" unless proof were given of a reasonable apprehension of bodily injury. But now the same term means any conduct that wounds the feelings of the other party, affects their peace of mind, "though no physical or personal violence may be inflicted or even threatened or reasonably apprehended." (4). This approach makes it possible to use the whole spectrum of marital unpleasantness as a basis for divorce, such as quarrelsomeness, nagging, insulting or provocative words, critical actions and what the other party considers disrespect, refusal to talk or talking too much, failure to have friends or having too much company, not paying bills or ignoring the in-laws.

Repeatedly the courts insist that "no arbitrary rule of law can be laid down as to what particular facts must be proved to justify a finding that the complaining party has undergone grievous mental suffering; that a correct decision in such cases depends upon the sound sense of justice of the trial court, and that in each case it is a pure question of fact to be deduced from all, the circumstances of each particular case, keeping in mind always the intelligence, apparent refinement, and delicacy of sentiment of the complaining party." (5) As a result of so vaguely defining the boundaries of mental cruelty, a judge will grant or refuse a divorce not on objective standards set by the law but on his own subjective concept of the stability of marriage. If he believes it is meant to be permanent, he will be slow to allow the couple to separate legally and remarry; but if his notion of marriage is less exalted, he will grant divorces almost for the asking. How arbitrarily the courts interpret the law may be seen from the astounding disproportion of divorce grants, in the same recent three year sequence. Nevada had rates of 34.6, 35.3, and 55.7 per thousand population; whereas the rates for all the New England states were 1.2, 1.3, and 1.9 for the same years.

If there is any legal tradition built into American history it is the idea that marriage is not the exclusive concern of husband and wife. Just because they want to separate and remarry does not give them warrant to do so under the law. In theory, then, no divorce can be granted just because the spouses are tired of each other and would like to be freed from their marital obligations. There must be objectively determined statutes to which the married parties must conform before divorce proceedings can even begin. The courts understand this perfectly.

The Legislature has determined the policy and specified the grounds upon which divorces are authorized; it remains but for the judiciary to enforce the legislative will. The marriage relation is one in which society and the state are vitally interested. The parties are denied any right to divorce except in the instances provided for by law; and the proof to establish the grounds relied on should be full and complete …The mere fact that one spouse "does not want" the other…and that the two spouses wish the decree and connive together to obtain it have been declared to constitute no grounds for divorce. (6)

So far the theory. But in practice the opposite is fast becoming the rule. Most divorces today are obtained after husband and wife have agreed that a dissolution of their marriage is desirable and that the breakdown would be legalized.

In a survey made by the U.S. Census Bureau on the percentage of uncontested cases, it was found that out of 200,000 divorces on which information was available, less than thirteen percent had been contested by the other party. In every other instance, both sides had previously agreed they wanted to separate and proceeded to get the court's blessing on their agreement.

New York State is notorious for the connivance that takes place. Since the only legally recognized ground for divorce there is adultery, the couple discovers ways by which one of the parties will be found guilty of this crime in order to get a divorce. Regular syndicates have been operating, where divorce-mill specialists provide clients for the purpose of proving adultery against husband or wife, depending on which one consents to be the fictitious criminal in the case. Other states have a wider selection of grounds for divorce, but they, too, do not escape the practice of connivance and divorce racketeering. When a committee of the Chattanooga, Tennessee, Bar Association investigated charges along this line, it discovered (among other things) that a twenty-seven year old woman had been married and divorced sixteen times in eleven years, all in Hamilton County (where Chattanooga is located), and before one judge.

In a typical uncontested case, the court or referee will hear only the plaintiff's side. No defense lawyer is present to examine the latter's witnesses and raise doubts about their veracity. No defense witnesses are present to contradict those of the complainant. Unless there is patent evidence that the whole case is based on falsehood, the judge has no choice but to grant the divorce. Where, on occasion, he refuses to do so, the case is appealed and his decision will be over-ruled. Every professional study of divorce methods in the United States shows that the requirements of contest, innocence, and guilt are mere formalities. Consequently American divorce courts have become mainly "places for the formal registration of decisions already reached voluntarily or involuntarily by both parties. The fact that this formal registration is attended by elaborate ceremonies, court costs, attorney's fees and a largely fictitious judicial controversy does not change the essence of the matter. But the question does inevitably arise whether for the bulk of divorce litigation, the ceremonies, costs, and fictions should be retained – at least in their present elaborate form." (7) Critics who have no quarrel with divorce, nevertheless are disturbed by the mere show of legality in a situation that so deeply affects the welfare of society.

Until the modern prevalence of "divorce for the asking,” the courts assumed that legal separation was a privilege for an innocent and injured party. No one else was considered deserving of a divorce from his (or her) offending spouse. This is still the theoretical basis of civil law, so that a divorce should not be awarded to a person who has himself been guilty of misconduct that legally would be grounds for divorce. If both parties have been guilty, they have no legal remedy under existing statutes, but only, as a more ancient ecclesiastical court once declared, "find sources of mutual forgiveness in the humiliation of mutual guilt." Such idealism is fast becoming a memory in the United States.

With occasional exception, the courts have come to regard an "unhappy marriage" as socially undesirable and therefore assist the partners to divorce and remarry, notwithstanding the obvious guilt of both husband and wife. They argue that the moral code does not require them to stay married, but gives them liberty to remarry, even though both are equally responsible for the breakdown of their previous union.

Divorce is the climax of domestic discord, the affections which united the parties is marriage have disappeared and hate and disharmony loomed in their places. To compel two persons to live together under such circumstances would seem to do violence to the moral sensibilities of an enlightened age …Is not the interest of society generally better served by a dissolution of the marital status and the possibility of a future respectability through remarriage rather than a pretended legal cohabitation attended by probable promiscuity to satisfy the human passions? Courts which administer the divorce laws should not close their eyes to the physiological and sociological imperfections of mankind. (8)

The implied principle is that people are going to take the law into their own hands, unless the law gives them leave to sever the marriage for whose breakdown they were mutually responsible. There is no sign of vision in the courts that people who were both unable to keep one union alive may find it just as impossible to remain married in a second, third, or any partnership they enter.

Consistent with the more philosophical concessions made by the laws and courts is the widespread permission to seek and find divorce by the simple expedient of traveling to another state where legal restrictions are minimal. Nevada and Florida are familiar outlets, but Arkansas, Idaho and Wyoming are close competitors. Residence requirements are so easy that in a given year these five states may account for ten times as many divorces as their stable population would explain.

Several times the rights of the states to wink at short-term residents and grant them divorce have been challenged before the U.S. Supreme Court, which has played both sides of the fence in such litigation. One of the most famous cases involved two Massachusetts people, Katherine and Martin Coe, who obtained a divorce after Martin left for Reno with his secretary, stayed there six weeks, and came back with his newly espoused wife. A Massachusetts statute expressly forbids that kind of chicanery. "If an inhabitant of this Commonwealth," the law prescribes, “goes into another jurisdiction to obtain a divorce for a cause occurring here, while the parties resided here, or for a cause which would not authorize a divorce by the laws of this Commonwealth, a divorce so obtained shall be of no force or effect in this Commonwealth." (9) As might be expected, the Massachusetts court upheld the state ruling, but the U.S. Supreme Court reversed the state court's decision. It held that Massachusetts was required to give effect to the Nevada decree of divorce, although Martin Coe was not and never intended to be a resident of Nevada.

Causes of Divorce

All the states grant divorce on the grounds of adultery, but beyond that there are numerous differences in the legal basis on which legal separation and the option to remarry may be obtained. Typical grounds are cruelty, conviction for felony, defamation of the spouse, desertion, disappearance, divorce out of state by other party, fraud, drunkenness, use of drugs, incompatibility, indignities, living apart, loathsome disease, mental incapacity, non-support by husband, unchastity, unnatural behavior, vagrancy, violent temper, wife pregnant at marriage, and willful neglect. The bare listing of these grounds suggests the pressing desire of the courts to facilitate divorce and make remarriage as convenient as possible.

Apart from the legal conditions, there is a fairly common practice among the states in the actual grounds for which absolute divorce is granted. However, because of the stigma attached to adultery, only a small percent of divorces are legally granted for this reason. Less than five per cent is a close estimate. About fifty per cent are given for cruelty, whether physical or mental, with variations as previously reviewed. Another common ground is desertion, recognized by all states except New York and North Carolina, with the required period ranging from six months to five years. What often happens is that husband and wife agree to either or both taking up with another partner, and after the specified legal time divorce proceedings are filed and the decree awarded for "desertion."

For many reasons, the legal grounds only remotely approximate the real cause of divorce. It is certain that only a fraction of the more than 100,000 annual divorces in the State of New York were caused by adultery, which is the only grounds legally recognized. Also an estimated ninety-five per cent of all divorces in the United States are uncontested in the courts. All of which shows that most divorces go through in accordance with the law, but the court proceedings or public records are no reflection of what really happened.

Behind the legal grounds, therefore, are the real factors in divorce, which sociologists have carefully analyzed but which must be carefully distinguished according to the different effects they are said to produce. There are first of all factors which immediately provoke a divorce, and are known to exist not from the artificial courts records but from an examination of the marriage and the peoples character and background. Besides other elements are active, larger and more significant, that are based on a study of American society and that help to explain not why any particular marriage broke down but why the nation as a whole is plagued with a dissolving family life.

Scientific studies made in recent years have gone into the case histories of several thousand people whose marriages disintegrated, and discovered a remarkable consistency in the causal factors that led to divorce. One study of seven thousand cases in a large Midwestern city discovered eight major factors, besides several minor ones, according to the following ratio: Drink (29.8), infidelity (24.8), irresponsibility (12.4), temperaments (12.1), in-laws (7.2), mental (3.0), religion (2.9), money (0.8), and others (7.1). The high index of divorces immediately due to drink is confirmed by every survey made on the subject. One study showed that arrested inebriates were divorced twelve times as often as the normal average. By irresponsibility in the analysis was meant immaturity, manifest in a high degree, where one or both parties failed to recognize the basic obligations assumed in the marriage contract. Under "temperaments" were classified such varied items as accusations of jealousy, mental cruelty, queerness, neglect, selfishness, meanness, and "hard to live with."

More important, though, than the immediate divisive elements that destroy a marriage are the broader issues that touch upon the vitals of human existence and that have reached a critical stage in present-day America.

We may here transmit the most serious disintegrating factor, namely a deficiency in religious and moral values. It underlies all the rest. Millions of Americans have been strengthened by no religious training which might teach them that marriage is not only a part of the divine plan but implies obligations that are binding in the moral order; that for Christians matrimony has been raised to the dignity of a sacrament, with the guarantee of help from God to remain faithful to the responsibilities of marriage for a lifetime.

When marriage was severed from Church authority in the sixteenth century, the way was opened to remove those elements which Catholicism believes are quintessential for marital stability – confidence in self to resist temptation and trust in God to receive this grace.

Sociologists explain this decline in spiritual values as a disintegration of culture based on reason and faith, and the rise of a new culture that is controlled mainly by biological drives and appetites. This revolution in the Western world has led to the elevation of sensory and materialistic values to a level previously occupied by religion and the creations of the human mind.

Contrary to expectations, economic depression does not measurably affect the divorce ratio except, perhaps, negatively. Besides other inhibitive factors, there is the high cost of securing a divorce (from fifty to several thousand dollars), the lowered chances of unemployment relief to divorced persons, and the small chance of employment for divorced women in depression times. In times of prosperity, however, money is plentiful and social relations outside the home increase. Husbands and wives come into frequent and stimulating contact with persons of the opposite sex who tend to arouse their romantic sense, with the result that many decide to divorce their partners and try again. But that is only symptomatic of a cluster of problems created by an affluent society whose prosperity produces self-indulgence which, in turn, disintegrates homes.

The perverted views of married life portrayed in fiction, radio, television and the movies help to produce a mentality that takes divorce for granted. Somewhere near the heart of this portrayal is a philosophy of freedom from restraint that two generations of Americans have imbibed through such prophets of education as John Dewey. For upwards of fifty years a large segment of American society has been taught that anything in the nature of a command, deriving from the divine law, is contrary to sound pedagogy. Assuming that perception from within and not indoctrination from without is the secret of true education, nothing was to be allowed to interfere with the childish instinct to learn only by experience and with no limitation on his freedom.

Children in their early years are neither moral nor immoral, but simply unmoral; their sense of right and wrong has not yet begun to develop. Therefore, they should be allowed as much freedom as possible; prohibitions and commands, the result of which either upon themselves or their companions they cannot understand, are bound to be meaningless; their tendency is to make the child secretive and deceitful. (8)

Thus a child was not to be told authoritatively beforehand what is good or evil but should have discovered these opposites for himself. As far back as the thirties critics of this unbridled license pointed to its devastating effect on family life. "It is an interesting and sad commentary," they observed, "that the identical theory which glorifies freedom as the inalienable right of children in their education can also serve to rationalize a social standard which will inevitably deny to children in ever increasing numbers the right to a normal home." (9) The cult of individualism, which found authority only in its own wants and satisfactions, was boldly declared to be responsible for the number of divorces and the slackened control of the family. (10) How could parents be expected to worry about the fate of their children after divorce if they had learned to worship self from the dawn of reason and forbid any law, whether human or divine, to impose interior limitations on their autonomous wills?

Education must be blamed for a large share in the scandal of divorce in the United States. In a book called Ethics, first published by Dewey and Tufts in 1912 and republished many times later, prospective teachers were told that while "the increase in divorce seems to indicate a radical change in the attitude toward marriage," this was only another example of the revolutionary changes taking place in every phase of modern life. It was nothing to be concerned about. "Divorce ...does not necessarily imply that the institution of marriage is a failure, for divorced persons not infrequently marry again in the hope of a more successful union," which practice the authors sanctified with their approval. (11)

A parallel source of family deterioration is the de-emphasis on the family as a force of marriage. Less than five per cent of the space in current literature on marriage refers to the family. Yet married people do have children, but they have been brought up to look upon parenthood as a liability.

Our whole culture is guilty of this detour around the subject of parenthood. The family has historically been the moving force for the perpetuation not only of the race, but of civilization. Yet marriage clinics deal only with the problems of husband-wife relations. American business, which has engulfed a liberal proportion of married women, considers parenthood an incident. Housing developments and rental offices often ignore children completely. (12)

So true is the correlation between children and marital stability that no single factor has been better proved in the study of divorces. A national survey showed a remarkable connection between the two elements.

In the same year in which this study was made, fifty-eight per cent of the divorces went to childless couples; and the national average for divorced families was 1.8 children. A corrective element is the duration of the marriage; the longer a couple are married, the less likelihood of a divorce. But no matter how long they are married, the more children they have the more stable is their union.

The emancipation of women has been a beneficial and democratic advance, but it also means that women will tolerate less dominance from their mates, and, if they feel aggrieved, seek their freedom in divorce courts. There is more to this aspect of the divorce problem than a simple unwillingness of women to be told by their husbands what to do. The whole complex of society, at least in countries like the United States, caters to feminine independence of men either to gain a livelihood while they are married or to make a living in case of divorce.

Women in the labor force of America are another contributing factor. By 1975 it is expected that women will comprise thirty-five per cent of a total United States labor force of ninety-three million. In 1960, by contrast, only thirty-two per cent of a labor force of seventy-three million were women. Nearly nine million women will be added to full-time employment by 1975, but in relative terms the female work force will increase at a faster rate (37 per cent) than the male work force (23 per cent). The greatest relative growth in the labor force as a whole is expected to take place in the 14 to 24 age group, with a relative increase of 61 to 58 per cent for women and men, respectively.

Sympathetic commentators on the new status of women explain how it is now possible for a woman to do very well, economically at least, even though she never marries; and after marriage, she demands her own rights as an individual, fostered by her role as part bread-winner in the family. Moreover a wife or mother who is working tends to shift the interest center of gravity from her husband and home to the job or profession, until the two many openly compete for attention and ultimate dedication. While at work in the factory or office, she is exposed to all the emotional stimuli of contact with men who may be more attentive than her husband and consequently more attractive, and who offer her an outlet for self-expression which the drudgery of household duties cannot afford.

Dismissing the obvious cases where the incapacity of the husband leaves the wife or mother with no choice, working women raise a grave problem in marital stability. Sociologists with no religious prepossessions speak of the alarming increase of childless women – teachers, sales-persons, office personnel, who by deliberate design continue their employment after marriage for "economic independence," which is often a euphemism for fine clothes, a good time and selfish escape from the demands of motherhood.

Inadequate divorce laws are also responsible. A judge who handled some 25,000 divorce cases summarized his criticism by saying that, "seldom has any branch of jurisprudence set such an example of ineffable ineptitude and brought upon itself such serious censures from such varied sources as the law of divorce." The reasons behind this judgment have been seen in the preceding historical review. Guilt is the only criterion of divorce recognized by law, with the result that as long as one party is proved guilty, his partner is awarded a divorce. Consequently divorce takes on the character of punishment for wrong committed, without taking into account the fact that both parties are thus equally punished, and that divorce is not necessarily the right prescription, no matter how loudly either or both parties may proclaim it is.

In effect, the law permits the patient to write his own prescription. Medical science does not allow the patient to decide what medication he needs. Pain may drive him to demand that his shattered leg be amputated, but the surgeon will not sever the limb if it can still be repaired. The moral question arises whether the state may permit the divorce litigant diagnose the case and choose his own remedy, especially when the state proclaims itself a party to the action and professes to have a vital interest in the preservation of family life.

But most serious is the laws own lack of insight into the sub-surface causes of marital distress and proper remedial measures. One lesson impressed on judges who hear many divorce cases is that comparatively minor legal guilt is often more disruptive of family life than that guilt which society from the beginning of history regarded as most offensive, namely infidelity. Instead of centering on this or similar moral deviations, the law has actually connived with couples seeking release from marital burdens by giving them forty or more excuses for breaking what, ostensibly, they had intended to be a lifelong contract.

Finally the churches cannot be absolved from responsibility for sanctioning the civil laws on absolute divorce. They plead with their people to remain together, as they vowed, "until death do us part." But at the same time divorce with remarriage is broadly tolerated and religious bodies like the Catholic Church are criticized for a heartless unrealism in refusing to grant divorce "after love has gone."

Effects of Divorce

The worst effect of divorce is on the children of parents whose marriage has been legally dissolved. Unfortunately official court reports no longer give the number of children affected by divorce. However, statisticians calculate that about three hundred thousand children are annually victimized by the divorce courts, which is about ten per cent of the total number of children under eighteen that in any given year are living in a home that has been broken by legal separation.

What happens to the children of divorced parents? The effects are drastic. Having formed a union which is socially defined, which involves mutual rights and obligations in the rearing of children, when the parents separate they deprive the child of its socially prescribed environment. If he stays with one parent, he loses the other; yet he needs both father and mother because each plays a complementary role in the child's life. If the parent with whom he stays remarries, the child falls into the stepchild situation. If he is shifted back and forth between the parents, he must adjust to two different domestic regimes, possibly two different stepchild circumstances, and must therefore run the risk of discontinuity in his emotional and intellectual development.

Psychiatrists confirm this description. They find that the children of divorced parents are insecure. No matter what their appearance, closer scrutiny reveals a panicky loss of morale, a figurative hanging of the head. Various studies have shown that the immediate result is often a moral and social aberration of varying degree of gravity; and eventually the distorted concept of family relations which the child learned at home is carried over into his own married life, so that marital instability becomes hereditary and multiplies in geometric proportion.

The tragedy is that the child is usually the last one considered when a divorce is being prosecuted. Neither the courts nor the lawyers nor the couple are encouraged by law or custom to give first thought to the welfare of the children. Women first, perhaps, but not children. The courts accept, with demur, whatever terms parents and lawyers have bargained out in advance. Yet all studies of the subject confirm the belief that broken homes are the single largest element in juvenile delinquency. A recent survey of several thousand delinquent girls sent by the courts for training and rehabilitation to institutions in twenty-six cities showed these backgrounds; forty-three per cent had parents who were divorced or separated, fifteen per cent were half orphans, seven per cent were born out of wedlock, five per cent had at least one psychotic parent, and two per cent were full orphans. Thus, of all contributing parental factors, the most causative of juvenile crime was a broken home.

Comparable to the bad effect on children is the injury done by divorce to the husband and wife. Few crises in the life span of an individual produce a more severe strain on the personality. Even death may produce less conflict because the widowed survivor has a variety of socially sanctioned forms of adjustment. Two stages of adjustment are commonly recognized. First a period of varying length which the divorced person is either crushed by a sense of shame, fear and maybe hatred, as he faces the world alone and unprepared for a new kind of life; or he may go to the other extreme and seek to drown his emotions in reckless dissipation, through drink or sex, and vengeance on society.

The next stage of adjustment can take a lifetime, and even then it is only partially satisfactory. Emotional dependence naturally develops in married life, and becomes specially marked among those with personality disorganization. Ordinarily this individual is not the one who wants a divorce, and therefore he suffers most. Equally grave for women is the problem of financial support. Normally the wife had no experience or training which can be turned to account. She becomes dependent on whatever alimony the court awards and the help of relatives; or else she is forced to lower her standard of living. She may also find it hard to get a job that will pay enough to support her and the children, if there are any. Moreover, though divorce is widespread in America, it is still an abnormality and carries with it a stigma that may oblige its victims to sever all the social ties of their former married life. Very often the individual feels that his only recourse is to make new contacts and leave behind old friendships as part of the marriage situation from which he wishes to escape. Self-reproach, resentment, disillusionment, and feelings of betrayal are deepened because of this tendency to break the larger web of social relationships.

Attempted remarriage is the last stage in the adjustment process, but all the evidence points to it being, ordinarily, less a solution than a further aggravation of the problem. The individual in a remarriage finds himself making unfavorable comparisons between the new alliance and the old. Idealization of the past tends to erase some of the disappointment in the first marriage and to make of it a trying standard of excellence. But more seriously, no matter how emancipated the divorced person may feel, he finds it next to impossible to forget that his first marriage failed and that this is a second (or later) attempt. No matter how satisfactory the subsequent partnership, one's attitude remains apologetic and colors every aspect of marital relationship. Feelings of resentment and bitterness are often retained as an aftermath and a protection against self-incrimination.

The most difficult situation occurs when there were children by the first marriage. Especially if the child happens to be of the opposite sex and to look like the divorced parent, the father or mother may be much more fond of him than of children by the second marriage. There may also be a feeling that in his fondness for this child, he is being unfaithful to the present marriage. This in turn may unconsciously urge a parent to prove his fidelity by mistreating the child, only to find that he has complicated things by adding self-reproach for parental negligence. As the child becomes older he learns that his first parents had been divorced. Fear of this prospect is one reason why parents often try to build up feelings of hatred in their children toward their former marriage partners, since this looks like the only insurance against possible tension in the future.

Society also suffers from the growing accumulation of people who divorce and look around for new partners. Contrary to what might be expected, divorcees stand an excellent chance of remarriage. One survey states that their chances are better at every age level than for comparable women who are either single or widowed. At the age of forty, for example, the divorced woman has sixty five chances in a hundred of remarriage, the widow only twenty-nine, and the single woman sixteen; at thirty the odds are closer, and at twenty closer still, but always the divorced woman ranks first in her prospects of finding a mate. In fact, insecure wives consider her more suspect than any one else as competitor for their husbands. Without examining the matter too closely, divorcees (as a class) are considered more aggressive, more frankly seductive, and more deliberately acquisitive of a male consort than any other group of women legally eligible to marry.

There is no easy solution for the American divorce problem, which some say has gone beyond the range of solution. However, two basic viewpoints may be seen among those who rightly believe that the breakdown of family life is the most critical issue in the country today. Legal experts and the judiciary feel the problem should be attacked by awakening the state's responsibility to safeguard the stability of marriage as a preservative of society. They argue that marriage is not an individual and private contract only; it is controlled by the state. Similarly divorce is impossible except under conditions imposed by the state. Why not make the laws governing divorce so strict that no one would be allowed to obtain a legal separation, and still less remarry, until he has proved to the satisfaction of the courts that every reasonable means had been tried to make his previous marriage succeed? He owes this element of effort, it is argued, whatever the incidental inconvenience or unhappiness may be, in order to make his contribution to the moral and cultural stability of the community. Without this effort, the community disintegrates in the exact proportion to the instability of marriage.

Another, more fundamental, solution is offered by those who see the root of the difficulty not in the civil law as such, but in the attitude of the people under the law. Spiritual values are being neglected in the current granting of so many divorces. With all the plans for a reformation of the civil code, the basic factor has been missed. Prevalence of divorce is due much less to the law and the courts than to popular American opinion. Behind each of the divorce decrees is the decision of one or both partners to file and prosecute the action; but behind their decision is the community judgment that these persons are doing no wrong, and that they alone are to decide their respective (and their children's) future. The good of society and the interests of the state are not even considered, let alone consulted. Yet the good of society is paramount in a matter so intimately social as marriage. People must, therefore, be educated to recognize the social responsibilities of marriage and the social liabilities of divorce. All the forces of religion and ethical training, of literature and the mass media of communication should be mobilized in this direction. As long as public opinion remains oblivious of the harm resulting from uncontrolled divorce, and those who remarry are accepted without reserve as respectable members of society, it is useless to write new statutes and instill new procedures.

Annulment

The only marriage which is absolutely indissoluble in the eyes of the Catholic Church is one between two baptized persons who have had conjugal relations after they were married. Technically such a marriage is said to be ratum et consummatum, i.e., ratified as a sacrament between two Christians, and consummated by sexual intercourse after pronouncing the marriage vows. There may be other unions, however, that are not absolutely indissoluble, where a previous marital bond is either breachable or declared never to have existed in the first place. Three cases are commonly recognized in moral theology: a declaration of nullity, a ratified marriage that was not consummated, and the Pauline privilege.

A declaration of nullity is possible after a man and woman have gone through the external form of getting married but some factor was missing which invalidated their contract, so that no marriage had really taken place. The most common invalidating element is that one or both parties were burdened with a diriment (nullifying) impediment which either could not be removed or de facto had not been removed before the marriage, hence the couple are not married. Less common is the case where the ceremony was not performed according to the essential requirements set down by the Church, which again makes their marriage null and void. And least common is the situation where at least one party does not give free consent to the contract, and therefore no genuine contract is made.

Objectively, then, and before God such marriages are non-existent and the sacramental graces normally given through matrimony are not received. But subjectively the couple may either be unaware of the fact or, become aware, want to have their previous contract officially declared invalid. A declaration of this kind is called a statement of nullity, on which chanceries in Catholic dioceses are often asked to pass judgment. Sometimes the case has to be submitted to Rome for adjudication, and it may take months or even a year or two before the final decision is received.

Any one of many reasons may invalidate a contract, as previously seen in examining the role of fear and simulated consent in marriage. Yet each case is unique and may involve subtle elements that require careful scrutiny by ecclesiastical judges and courts before a balanced judgment can be made. A few sample cases will illustrate the extreme prudence and long sifting of evidence needed in this delicate matter.

A girl about to marry a man was warned that he led an immoral life and would probably remain the same after marriage. She told him what she learned and explicitly said that if the charges were true she would not marry him. He denied the accusations, which were true, and married the girl. Later on, when she found out that she had been deceived she asked for a decree of nullity on the grounds of having set down a condition for marriage (as to a past fact) and then not having the condition verified. Rome declared the marriage null and void, notwithstanding the girls mistaken assurance that the condition was verified. Her subjective error did not imply that she had revoked the condition.

But in another case, a man claimed that he conditioned his consent to marry a girl on her not having had previous relations with other men. He asked for a decree of nullity, but failed to prove that he actually made the condition. At most he had made a mistake about the quality of the person he was marrying, so the marital contract was declared valid by Rome.

Just as the knowledge of a past fact may influence the marriage contract, so the existence of a present situation can have the same effect. A girl seriously predetermined her consent to marry a man on condition that he would seriously undertake to help her father in his profession, with a view to succeeding him in his place of business. All the evidence showed that this was a strict condition about the prospective groom's present sincere intention; it was not merely asking him for a promise to be fulfilled in the future. Rome declared the marriage nullified on the score that the condition had not been verified, i.e., the man never intended to do what he said, although the girl exacted such an intention as indispensable for marriage.

But in another case, where a girl exacted a promise from her fiancé to practice his religion, the marriage was declared valid even though it proved unhappy because the man, who was only a nominal Catholic, failed to live up to his promise. In contesting her marriage, the woman failed to prove that she had made his present sincere intention an absolute condition to marry. She had wrongly relied on his promise to practice his religion, but this mistake alone would not invalidate the contract.

A celebrated case involved the agreement between a man and woman to get a divorce if their marriage did not work out. Marconi, who was baptized a Catholic but educated an Anglican, and Beatrice O'Brien, an Anglican, were married in London by a pastor of the Church of England. They separated thirteen years later, obtained a civil divorce, and then sued for nullity in the Diocese of Westminster. Their appeal was granted and later on confirmed by Rome.

Both parties testified they had made explicit their intention not to resist divorce in case they were dissatisfied with the marriage. In handing down its decision, the ecclesiastical court explained that, although the Anglican formula was used, "until death do us part," this in itself was not necessarily a revocation of the condition previously made and expressed interiorly. Even a Catholic formula would not necessarily mean they had revoked their plan to divorce if the marriage was unhappy.

Fear as a nullifying element in consent may take on the most unexpected forms. A girl was completely dependent on a wealthy grandmother with whom she lived. The grandmother was of a domineering character and threatened to withdraw all support unless her grand-daughter married a man whom the girl disliked. The marriage was later declared null on the score that the threat was used as a means of forcing an unwelcome suitor who had ingratiated himself with the grandparent. It was immaterial, the court said, that the girl might have escaped the clutches of the older lady; subjectively she made no effort to do so and acted under compulsion, which was enough to invalidate consent.

In another case, it was the man who acted under fear. Although averse to the marriage, he was compelled to consent by the woman's threat of committing suicide, which would have exposed him to infamy and to reprisals from the girl's brother. He was given a declaration of nullity.

But a British aviator, wounded from a fall, and married to an Italian girl living in London was less successful. He claimed that his marriage was not valid because while in Switzerland (before marriage), the girl's mother threatened to reveal his secret activities to the Swiss government unless he married her daughter. The Church court did not agree that consent had been coerced, mainly because his testimony was inconsistent and because it would have been highly inconsistent with his known character to allow himself to be thus influenced into forced matrimony. However, a Chinese promised to a girl in infancy by his father, was later forced to marry her against his strong repugnance and obtained a nullification of the marital contract.

Non-consummated marriages between baptized people are true marriages even though the couple do not have marital relations. But once they have had intercourse after pronouncing the marriage vows, their bond cannot be dissolved by any human power. The Church cannot release them of their bond and allow either party to remarry validly. Sexual intercourse perfects or "consummates" matrimony to make it absolutely indissoluble.

Before the marriage is consummated, however, it is still dissoluble, meaning that, if the absence of intercourse can be proved, the Church has divine authority to dissolve the marital bond. While extremely rare, this power may be exercised either when one (or both) parties pronounce solemn vows in a religious order like the Franciscans or Carmelites, or if the Holy See grants a special dispensation.

In the case of solemn vows pronounced by a person who had been married but never had conjugal relations with his partner, the moment the vows are taken the previous bond of marriage is severed and the other party is free to remarry. Naturally the Church permits this only for extremely grave reasons, where both parties agree, and after careful scrutiny into every aspect of the case. In fact permission would have to be received from Rome even to enter the novitiate, since the rights of the other person must be considered, and, once having married, each has a claim on the other's body, from which they cannot be released except through mutual and perfectly free consent.

More commonly, though still rarely, the Pope may dissolve a valid and sacramental, marriage which has not been consummated, provided two things are proved beyond the shadow of doubt: that no intercourse was had after marriage, and that there are very serious reasons for severing the matrimonial bond. Typical reasons would be probable impotence of one or both parties, the discovery of a contagious disease like syphilis which is communicated by sexual contact or from blood or bite of infected person or from infected mother to fetus, or serious incompatibility that would make married life next to unlivable. Given a critical enough situation, the Church may grant a dissolution of the contract even though one party is unwilling to sever the marriage.

With the rise of contraception, the question arises as to whether a marriage is consummated if artificial birth control had been practiced from the very beginning of the marriage. It is not consummated, in the strict sense, if any contraceptive device was used by the husband; it is doubtfully consummated if the wife used a device. But in either case only the Holy See would have authority to finally pass judgment on the case.

As a matter of history, the Church has exercised this power of dissolving for centuries, with a traceable line of such "dispensations" beginning with the fifteenth century. In the words of Canon Law (Canon 1119), "Nonconsummated marriage between baptized persons or between a baptized and a non-baptized person, is dissolved both ipso jure (automatically) by solemn religious profession, and through a dispensation granted for just cause by the Apostolic See, at the request of both parties or of either party, even though the other be unwilling."

The Pauline Privilege is in a class by itself and, in view of its practical importance, should be examined in detail. First the statement of Canon Law on the subject.

Valid marriage between non-baptized persons though it has been consummated, is dissolved in favor of the Faith by virtue of the Pauline privilege. This privilege does not apply in the case of a marriage between a baptized and an unbaptized person which was entered into with a dispensation from the impediment of disparity of cult.

Before the party who has been converted and baptized can validly contract a new marriage, he or she must ...interpellate (interrogate) the non-baptized party: 1) Whether he or she is also willing to be converted and to receive baptism, 2) or at least cohabit peacefully with the other party without offense to the Creator.

These interpellations must always be made unless the Holy See shall have declared otherwise.

If the interpellations have been omitted in pursuance of a declaration by the Holy See, or if the unbelieving party has replied to them in the negative, expressly or tacitly, the baptized party has the right to contract a new marriage with a Catholic person, unless since baptism he or she has given the non-baptized party a just cause for departing.

The baptized party, even though since receiving baptism he or she may have again lived in matrimonial relations with the unbelieving party, does not thereby lose the right to contract a new marriage with a Catholic, and can therefore make use of this right in case the unbelieving party later changes his or her mind and departs without just cause or ceases to cohabit peacefully without offense to the Creator. (13)

This is called the Pauline Privilege because it was announced by St. Paul, as expressed in the New English Bible version: "If a Christian has a heathen wife, and she is willing to live with him, he must not divorce her; and a woman who has a heathen husband willing to live with her must not divorce her husband. For the heathen husband now belongs to God through his Christian wife, and the heathen wife through her Christian husband. Otherwise your children would not belong to God, whereas in fact they do. If on the other hand the heathen partner wishes for a separation, let him have it. In such cases the Christian husband or wife is under no compulsion; but God’s call is a call to live in peace." (14)

Briefly stated, the privilege allows the dissolution of a valid marriage between two non-baptized persons, after they have cohabited as man and wife. The first condition, then, is that both parties were unbaptized, either as Catholics or as any other Christians, before the marriage. The second condition is that one of the parties, and only one, receives baptism after marriage. Strictly speaking, the privilege would also apply to baptism in a Protestant denomination, but there would be obvious practical difficulties in the procedure unless the person became a Catholic. In practice, the Pauline privilege applies to those cases where one partner is baptized and becomes a Catholic. A third condition specifies that the "departure" of the unbelieving party be proved either by the "interpellations" (formal requests) made of him or her, or under such circumstances that the Church lawfully dispenses from making these interrogations.

At what point does the previous valid (non-sacramental) marriage cease? At the time when a new marriage is contracted. Normally the new partner is a Catholic and this is the usual condition under which the Pauline privilege is even requested. Yet on very rare occasions the Church has allowed a second marriage even when the new spouse was not Catholic. In such cases the Holy See would have to grant both the dissolution of the first marital bond and a dispensation from mixed religion (if the partner is a Christian) or from disparity of cult (if he or she is not baptized).

A large part of the Pauline privilege concerns the "interpellations," which are questions put by the converted party to the other: whether he or she is willing to be baptized and become a Catholic, and whether the unbelieving spouse is at least willing to live peacefully with the other party without offense to God. If the reply is negative to both questions, whether express or implicit, this is equivalent to "departure" in St. Paul's sense and a new marriage may be entered.

What if the unbaptized person says he is willing to become a Catholic but unwilling to live with the converted party? Several cases passed by Rome indicate that this is tantamount to "departure" and remarriage is permitted. In other words, the motive for "departure" of the unbelieving partner is immaterial; it need not be the conversion of husband or wife. On the other hand, if the unbaptized party is willing to live peaceably with his spouse, and without offense against God, but does not care to become a Catholic – there would be no "departure" in this case and remarriage is prohibited.

The test question is willingness to live with the convert without offending the Creator, which the Church has generally interpreted to mean that the unbeliever does not place the Catholic in danger of perversion, that is, expose him or her either to the loss of faith, or to commit any grave sin like practicing artificial contraception. Refusal to allow the children to receive a Catholic education comes under the same category. As a matter of practice, the "interpellations" are made after the Catholic has been received into the Church and, of course, before the conversion of the unbeliever.

When does the right to re-enter a new marriage arise: When the unbelieving partner has answered in the negative to the questions put to him, or when the Holy See has dispensed from having to ask the interpellations. Yet the right may be lost by the convert if he gives just cause for the departure of his unbaptized spouse subsequent to baptism. The implication is that baptism and conversion wipe out past indiscretions or infidelities. A typical "just cause" for losing the right to remarry would be adultery (or its equivalent) committed by the Catholic convert after his reception into the Church.

One final juridical item is the per durance of the right to obtain the Pauline privilege, even after a reconciliation has been effected between convert and unbaptized spouse. Suppose the wife was baptized and became a Catholic, and her husband agreed to live peacefully with her. Suppose even that this harmonious union continued for years and children were born after the wife had become a Christian. No matter, she never loses her right to ask for and receive a declaration of the right to remarry someone else, if the husband later proves himself ill-disposed to his wife's religion, by placing obstacles to her practice of the faith or becoming a proximate occasion to her commission of grave sin.

As might be expected, not every marriage case where the Pauline privilege is sought answers to the textbook clarity or certitude technically required by Canon Law. Not infrequently doubts may exist from a variety of sources, and yet the Church must provide for the practical solution of such doubts. There are two short but very significant provisions that cover these contingencies. The first says simply that, "in doubt, the validity of the marriage is to be upheld until the contrary is proved." (15) This means that, as a general rule, any marital union between persons that is called into question for any reason must be automatically presumed to be valid until positive evidence to the contrary proves otherwise. The second provision is an exception to the preceding one, and states that "in doubt, the privilege of faith enjoys the favor of the law." (16) This refers to a practically insoluble doubt about any one of many things, e.g., the validity of a previous marriage contracted while both parties were unbaptized, the identity of one's former spouse, the validity of the baptism of either party, the sincerity of the reply to the interpellations asked of the unbelieving spouse, the adequacy of reasons for getting a dispensation from the formal interpellations, the existence of a former marriage, or, in fact, the existence of any condition necessary for using the Pauline privilege.

What does this mean in practice? It means that when such doubts exist, the Catholic convert has a right to enter a new marriage with a Catholic whenever such marriage would favor the liberty of the converted party, provided the Church has passed judgment on the doubtful situation. Actually the use of this norm, called Privilege of the Faith, directly pertains only to canonists and ecclesiastical judges. But its existence should be known by clergy and laity alike because it highlights the Catholic attitude not only toward safeguarding marriage as such (covered by the general rule) but also protecting the faith of the Church's members (covered by the present exception to the rule). Behind it stands the teaching of St. Paul who insisted on monogamy and forbade divorce under any circumstances among Christians, and yet allowed converts to remarry if their pagan partners were a threat to Christian faith and virtue.

Since the Church's interests extend to every land, it is not surprising that situations occur in certain countries that would rarely if ever happen elsewhere. As early as the sixteenth century, Catholic missionaries were faced with apparently insoluble cases on which they appealed to Rome and received answers that have since become part of ecclesiastical law.

The first problem concerns polygamists who do not remember which of several wives they married first. On conversion to the Christian faith, the general law states that a former polygamist must put away all his wives, except one, and the one he must choose is the first one he married lawfully. But where it is not certain which is the first lawfully wedded wife, the convert is allowed to pick any one he wants, marry her by present expression of consent, and keep her to the exclusion of all the rest.

The second condition also deals with polygamists, but gives them a wider range of choice than before, When baptized and received into the Church, they are permitted to choose any one of their former wives who is willing to come into the Church with them. Again all other women must be excluded from cohabitation.

A third dilemma involved cases where two unbaptized people had married, one of them became a Christian and wanted to remarry, but his unbelieving partner was prevented from expressing his will about living peacefully with the convert. The Holy See gave bishops, pastors and others permission to dispense from the interpellations of the unbelieving party.

All three situations have since become part of Canon Law and find application outside of missionary countries. The first is admittedly rare, since there are not many polygamists become Christians who forget which wife they first lawfully married. But the second and third are highly practical even in modern times and in the United States. In the eyes of the Church divorce and remarriage is successive polygamy. Consequently unbaptized people may have been married, divorced, and remarried several times. Then either the man or woman are baptized and become Catholic. In pursuance of the Church's legislation, such a person may choose either his present partner or any of his former partners, provided the one chosen is willing to become a Catholic along with him. Superficially this looks like an ordinary Pauline privilege, but actually it is different because no interpellations are required.

The last case is specially useful, where bishops were given power to dispense from the interpellations in mission countries. Since this now applies also to territories that are no longer missionary lands, it is not necessary to have recourse to Rome for situations where, after a presumably valid marriage between unbaptized persons, one partner becomes a Catholic and the other "either cannot be interpellated according to law or has failed to reply within the stated time."

One clause in this latter concession, allowing Church authorities below the Pope to dispense from the interpellations, has still deeper implications. It reads in part, quoting from the then reigning Gregory XIII, "We decree that these marriages (new, second marital unions) are never to be rescinded, but will be valid and firm, and the children born of them will be legitimate, even though afterward it become known that the former unbelieving partner was prevented by some just cause from declaring his will, and even that at the time of the second marriage he had already been converted to the Faith."

The underlined words are astounding. They offer one proof, among others, that the Holy See has power exceeding that of the Pauline privilege. It has authority to dissolve a marriage contracted in unbelief (neither party being baptized), provided there were no conjugal relations after both husband and wife, in the first instance, had become Christians.

This brings us to the final application of the Church's authority to dissolve a non-sacramental marriage, where the Pauline privilege as such no longer holds good. For the power vested in the Apostolic See also extends to marriages between a validly baptized non-Catholic and an unbaptized unbeliever, provided it was not consummated after the baptism of both parties. The historic instance in modern times was the Helena case, decided in November, 1924, on petition from the bishop of Helena, Montana.. An unbaptized man married a baptized Episcopalian girl. A year after their marriage, they obtained a civil divorce. The man wanted to become a Catholic and to marry a Catholic girl. His wife in the meantime had remarried. On examination of the case, the Holy See granted him permission to marry again, and Pius XI personally approved the dissolution of the bond. In the words of the declaration, "the natural bond of the first marriage was dissolved in favor of the faith," i.e., since it was not a sacramental union to begin with, it was soluble when, as in this case, dissolution would be to the advantage of the man's faith.

While cases of this kind are rare, they illustrate several principles of Catholic theology. By implication only marriages in which both parties are baptized are sacramental; the baptism of one partner does not suffice. This means that marriages in which one or both persons are unbaptized do not have a claim on those special graces received by husband and wife in virtue of the sacrament of matrimony. It finally means that, in the eyes of the Church, the claims of faith over-ride the demands of nature; so that where conflict of interests occurs, prior consideration should be given to foster the supernatural life of the convert even though it required dissolution of what is otherwise a permanent natural bond of marriage.

Chapter VIII

Divorce References

1. Benjamin Trumbull, A Complete History of Connecticut, Civil and Ecclesiastical...to the Year 1764, New Haven, 1818.
   
   
2. Billion v. Billion, 1931, 137 Oregon 622, 1 P. 2d 1108.
   
   
3. Ungemach v. Ungemach, 1943, 61 California App. 2d 29, 142 P. 2d 99.
   
   
4. Finn v. Finn, 1945, 185 S. W. 2d 579 (Texas).
   
   
5. Leon C. Marshall and Geoffrey May, The Divorce Court, Vol. I, p. 231.
   
   
6. Hatfield v. Hatfield, 1932, 113 W. Virginia 135, 167 S. E. 89.
   
   
7. General Laws of Massachusetts, Chapter 208, #39.
   
   
8. John Dewey, Schools of Tomorrow, New York, 1915, pp. 1-2.
   
   
9. William C. Bagley, Education, Crime and Social Progress, New York, 1931, p. 36.
   
   
10. Ibid.
    
    
11. Isaac L. Kandel, "The New School," Teachers College Record, March 1932, p. 508.
    
    
12. John H.S. Bossard, "Eight Reasons Why Marriages Go Wrong," Marriage and the Family in the Modern World, New York, 1962, p. 373.
    
    
13. Canons 1120, 1121, 1123, 1124.
    
    
14. I Corinthians 7:12-15.

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