“So take heed to yourselves, and let none be faithless to the wife of his youth. ‘For I hate divorce,’ says the LORD the God of Israel” (Malachi 2:15-16). Despite this precept, every diocese in America requires a civil divorce before a hearing at a marriage tribunal.

In recent media interviews about my new book Betrayed Without A Kiss, I have illustrated this contradiction between what we Catholics profess and what dioceses practice. After I mention this, interviewers ask a very natural question: Why does the Church mandate civil divorce?

It’s a terrific question. During my research, I asked it a lot. It’s a question we should all be asking. So what’s the answer? The short answer is this: There is no justifiable reason. But if you ask a marriage tribunal member, he or she is likely to give you one of two answers.

Alienation of Affection?

The first answer involves what is termed in law “alienation of affection.” Attorney Christy Bieber explains the concept: “Alienation of affection is a tort, which means it is a civil wrong. If you are married and someone interferes with your marriage and causes your spouse to lose affection for you, you could potentially sue that third-party individual who interfered and ruined your relationship.” 

The worry from the diocese’s perspective is that granting an annulment prior to a divorce decree might be seen as a cause of alienation that leads to divorce. Thus, the diocese does not dare risk such a lawsuit; instead, the tribunal will not convene until the divorce is decreed.

If “alienation of affection” is the motivator behind the divorce mandate, that is shocking on a theological level. It would subordinate the fact that God hates divorce AND the ecclesiastical process of determination of sacramental validity to a vague worry about a potential civil lawsuit. 

From a legal perspective, the argument is even more bizarre, because “alienation of affection” remains on the lawbooks of only six states in America. This is to say, obviously, that 44 states do not even allow lawsuits on the grounds of alienation of affection. And even in those six states that do, such lawsuits are very rare.

Moreover, the lawsuits are most often against an adulterer, not a corporate entity like a church. In North Carolina, for instance, though alienation of affection remains on the books, no lawsuits are ever filed against corporations (including churches). Thus, an attempt to justify the divorce mandate on these grounds is either ignorant of the law or intentionally misleading.

 

Impossibility of Reconciliation?

The second answer provided to justify the civil divorce mandate is that a divorce decree serves as proof that the couple cannot reconcile. Of the two explanations, this is much more prevalent — but in some ways, even stranger. Why?

American state laws broadly allow for unilateral no-fault divorce; simply, a woman can divorce her husband (or vice versa) without his consent for any reason or no reason at all. When I was growing up, I remember hearing that in certain states, a woman could divorce her husband for something as trivial as “eating crackers in bed.”

But unilateral no-fault divorce laws do not even require that much. A husband can be served with divorce papers without even speaking to his wife, much less obtaining his consent. This is often the case: it has been recently estimated that 70% of American divorces are unwanted by one of the two parties (to say nothing of the children’s wishes). Clearly, no effort to reconcile is necessary to the civil divorce process. And yet, the presence of divorce paperwork is recognized by a marriage tribunal as evidence of irreconcilable differences.

It is staggering that any Catholic would consider a unilateral civil action as evidence that a husband and wife cannot be reconciled. It is staggering that we do not even necessitate any encouragement of reconciliation. Instead, the couple is simply written off as irreconcilable. 

Attorney Beverly Willet, co-founder of the Coalition for Divorce Reform, points out a few things that priests, bishops, tribunalists and canon lawyers should consider.

First, “no-fault [divorce] is anti-marriage, bestowing absolute power on the spouse who wants out for any reason whatsoever.”

Second, no-fault divorce is unconstitutional because it violates the 14th Amendment’s guarantee of “due process of law.” Willet writes, “Spouses sued for divorce have no right to their day in court. No weighing of evidence takes place. Only one spouse need allege, without proof or specificity, irreconcilable differences or that the marriage has irretrievably broken down.”

Third, “the fallout from no-fault divorce has thus been financially, emotionally and physically devastating to divorced families with increases in poverty, suicide, depression, drug and alcohol abuse, and more. Adultery has been normalized. Approximately one million children a year become divorce statistics.”

Some readers might be quick to point out that the Catholic Church allows divorce under some circumstances. Sadly, this is often presented as a huge net, but the Catechism is extremely restrictive about divorce. Paragraph 2383 states: “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.” (emphasis added).

The Catechism’s language here is similar to its language used for conducting war: divorce is a last resort, and only then it is merely tolerated. As the very next sentence in the Catechism states, “Divorce is a grave offense against the natural law.” Let’s clarify: The divorce mandate prior to annulments does not merely refer to last-resort extreme cases; it refers to every marriage as the first step to undertake even before the tribunal process begins.

We should be condemning unilateral no-fault divorce with all our might, not demanding divorce paperwork before a marriage tribunal even convenes to hear a case. In doing so, we are feeding the American divorce culture.

Further, this process makes it all too easy for a divorce culture to devolve into an annulment culture — and that is precisely what we have witnessed over the past five decades. Between 1968 and 1989, the total number of Catholic annulments in America rose from under 350 to over 70,000 per year. (That is not a typo.)

Can anyone imagine Bishop John Fisher demanding that Catherine of Aragon obtain a civil divorce before her marriage tribunal? Or have we completely forgotten both ecclesiastical history and sacramental theology?

We should be doing everything in our power to protect and nourish the family. Instead, the family is abandoned by the process. As Bai Macfarlane of Mary’s Advocates puts it, “The canon law requires everyone to presume all marriages are valid until proven otherwise. The divorce requirement presumes all marriages are invalid because it is obvious that we would never want someone with a valid marriage to be forced to go through civil unilateral no-fault divorce.”

When couples are married, they exchange a kiss. The Church should stand by them. But by imposing a divorce mandate before an all-too-likely annulment, the couple is being betrayed without a kiss.

English Bishop Mark Davies recently said, “The headlines do not seem to exaggerate when they speak not merely of a cataclysmic decline but of marriage disappearing in Britain.” Sadly, it is not just Britain. It is America. We Catholics can blame the influences of the outside world all we want, but it is high time that we get our own house in order.