ASK FATHER: Civil divorce but stay together as married couple?

matrimony marriage wedding cardFrom a reader:

I (think) I have a tough question (“hagan lío”?):

Can a man and a woman, who validly embraced the Sacrament of Marriage 10 years ago and who STILL WANT to carry on living as husband and wife their indissoluble Catholic Marriage (which has already been blessed with three children) – can this couple get a civil divorce (excuse the pleonasm)?

“Render therefore to Caesar the things that are Caesar’s; and to God, the things that are God’s.”

Is not the Sacrament of Marriage a (indissoluble) “thing of God”. And is not civil marriage a (dissoluble) thing of Caesar?

If husband and wife have become unhappy, uncomfortable with their country’s civil law consequences for their civil marriage (namely the laws of succession ‘mortis causa’), can the couple get a civil divorce (while still remaining commited to a happy and indissoluble Catholic Marriage)? Would obtaining a civil divorce be – in any case – a grave sin?

GUEST PRIEST RESPONSE: by Fr. Tim Ferguson

Interesting question. The Church expects us to be good, law-abiding citizens. Matthew 22:21 (“Give to Caesar what is Caesar’s”) is often cited as Our Lord’s command to be obedient to the legitimate civil authority in those areas where civil authority exercises legitimate authority. Even in the early Church, operating within the Roman Empire, which was hardly operating under Christian principles, the Fathers of the Church urged the faithful to be obedient to civil laws, as long as those laws did not violate the moral law or the demands of the Gospel.

Ideally, the Church and the State work together for the good of citizens, and there are clear lines between the Church’s realm and the State’s realm. Our history shows that, in reality, those lines often get blurred, often to the detriment of the Church (see, for example, Henry VIII of England, Joseph II of Austria, Otto von Bismarck of Germany)

The Church, which has been given authority over marriage, recognizes that the civil authorities have legitimate interest in marriage. Marriage is good for society. Stable commitments between one man and one woman provide many benefits to the civil order, not the least of which is the procreation and upbringing of adorable future taxpayers. Without surrendering her authority over marriage, the Church prefers to cooperate with the civil authority, and leaves to the civil government the regulation of certain aspects of marriage. Thus, in most countries around the world, a marriage in Church requires the possession of a civil marriage license. Some countries (for example France and Mexico) do not recognize the Church’s role in marriage. In these places, lamentably, couples are forced to go through two ceremonies – a civil one, and then an ecclesiastical one. This is not ideal, and we should never rest comfortably with situations like this – the Church should strive as much as possible to keep a good relationship with the State for many reasons.

When it comes to divorce, the Church does not recognize the right of the State to “end” marriage. Only the death of one of the spouses or, in certain extreme circumstances, the intervention of the Holy Father (exercising his authority as Vicar of Christ) can end marriage. That said, the Church is not naive, and recognizes divorce as a reality. While it does not end marriage, it does have certain effects on the lives of the faithful, and the Church leaves to the civil courts such matters as the division of assets, the custody of children, and so forth. Divorce is a bad thing. Choosing divorce when there are other options is a sinful thing – gravely sinful, considering the gravity of marriage. There are circumstances, such as spousal abuse (which no one should be forced to endure), that make choosing divorce a legitimate, and non-sinful option. Ideally, this is done after consultation with one’s pastor. The Church has a canonical process for seeking the bishop’s permission to separate and pursue a civil divorce. While some try to claim that this canonical process is mandatory, and filing for divorce without the bishop’s permission is wrong and sinful, this is not the teaching of the Church.

In recognizing the State’s legitimate interests in marriage, the Church also knows that sometimes, the State errs. In times past, some civil authorities had laws that restricted the real freedom that people have in choosing marital partners. In some places, persons of different “races” were not allowed to marry each other. In some places, slaves and free men were not allowed to marry. In some places, nobility were not allowed to marry common folk, or were required to obtain permission to marry. The Church has rejected those prohibitions and has authorized secret marriages not recognized by the civil authority because of the illegitimacy of these civil restrictions.

Yet, the Church recognizes that some restrictions the State puts on marriage are legitimate, and is reluctant to intervene. Only the bishop can permit secret marriages, and usually, the bishop is reluctant to do so if the restrictions put on by the State are legitimate. For example, an older couple, both widowed, wants to get married, but does not want to do so civilly because doing so would lessen or eliminate their respective pensions. The Church would be reluctant to grant permission for a secret marriage because pension law is something that the State has legitimate authority over. If the civil law is unduly harsh, the solution is to work to change the law, not to try and get the Church involved in circumventing the law. Laws regarding pensions, property, taxes, inheritance – these are all things over which the State has legitimate authority, and the Church respects that authority. If the laws are unjust, the Church urges the faithful (especially the lay faithful, since this is their proper sphere of activity) to work to change the laws and be good, law-abiding citizens, only engaging in civil disobedience in extreme cases.

So, getting to the point – can a Catholic married couple seek a civil divorce while remaining in their hearts and minds (and bed and board) still married because the inheritance laws of the State seem onerous? No.

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23 Responses to ASK FATHER: Civil divorce but stay together as married couple?

  1. Phil_NL says:

    Still, at some point the state can change its conception of marriage to such an extent, it ceases to have any relation with the sacrament except a common name (though in that case, I wonder how long that would last). It might cease to reflect even the natural law understanding of marriage, probably at the same time even.

    While I wouldn’t go so far as to say that, in the US, that’s already definitely the case, current practice does give food for thought in this area. Wouldn’t it be better to disentangle the two? That does not mean getting a civil divorce, let me be clear, but I think it’s time to depart from seeing the ‘one marriage’ situation, where Catholic marriages, Christian-but-heterodox marriages, same-sex-marriages and who knows, perhaps polygamous marriages in the future, are tossed on one big pile as an ideal.

    The situation where a couple marriages separately for both Church and state allows for much more clarity. It allows for the Church to say, to the state “do there what you think you must, we don’t want a part of it”. It also helps to make a distinction with our Christian bredren who think divorce is just a-okay.

    In sum, I do think there’s a case to be made for ignoring whatever the state wants to say on the subject. Follow their laws, use whatever (e.g. taxation) benefits it offers, but I reckon that attaching moral dimensions to civil ‘marriage’ will soon be like trying to ram a square wooden block into a circular opening. It won’t fit.

  2. With all due respect to the wise advice posted, I feel I must disagree, even while admitting that I’m just a layman with nothing backing up my opinion.

    Historically, the state has had very little to do with marriage. Before the American civil war the most that any government would get involved in marriage was to keep a record of a family registry and say that your kids had to inherit what you had. Laws that might be construed as “marriage” laws were often just laws saying you couldn’t have sex with certain people and that was understood to also mean you could not marry them. The Church established by the Son of God alone had authority over marriage for all Christians of good faith. It was not the state’s place and the fact that this has changed is really a usurpation of power by the enemies of our Lord.

    Before the atheists took over the Italian peninsula and established the short lived Kingdom of Italy, just a ceremony in the Church was good enough. Then the usurper said that the Kingdom of Italy would not recognize any marriage conducted in a church and people had to start going before a civil magistrate. That was an attempt by the government to make people question the Church’s authority. I believe Pius IX even told the people of Italy NOT to get the extra civil marriage thing which wasn’t worth the paper it was printed on.

    Oh, but the story is even worse in the United States. After the civil war, there were a lot of freed slaves who were getting married with “white” people. The racists wanted to put a stop to that and so they insisted you needed a license in order to get married. In order to get a license, both parties had to appear in person before some government clerk and the clerk and to eyeball it and determine if the two people were the same race or not.

    And those laws are still on the books. Sure, not the same race part, at least no in Louisiana, but the fact that you have to ask for official government permission to get married is utter ridiculousness. My marriage to my wife is not of the government’s business. I don’t need their permission to be married to her. I decided I was getting married to her and she decided she was getting married to me. We are married in the eyes of GOD. If the state wants to go ahead and recognize that after the fact then fine but they can’t tell us not to do it and if they do they’ll have violent insurrection on their hands.

    The husband and wife administer the sacrament of matrimony to each other with the Church as a witness. I don’t see a place for the government to get involved in that equation. When the state forces you to pay a tax and take time out of your day to go get legal permission (as if we’re children) to get married, it equates to a power grab and a tax scam.

    So, yes, while some local ordinaries want you to jump through the hoops that some states unjustly impose on Christ’s faithful, that is by far not a universal rule in all countries or even every diocese in the United States. In Japan, it is non existent. I married my wife in the Church in Japan and the Japanese government had absolutely NOTHING to do with it save transferring my wife’s name to my address on her official government records when we informed them afterwards.

    As for getting a civil divorce after you’ve already gone through the illegitimate steps city hall sadistically asks for; probably not a good idea. It will cost money and time and they will try to pit you against your spouse in an attempt to squeeze you for ever dime while they rip your family apart. Protect your family and do all you can to keep the vultures away.

    The way I’ve lived my life is to keep the government out of it as much as possible. I don’t ever let them think that they have that kind of control over me, my family, or the Church. If I have to choose between my country or the Church, country looses. If I have to give up my passport to go to mass, that passport is gone. I am Catholic first in everything because Christ is my King and He is the only King I will recognize. I’ll even tell the so called “emperor” of Japan to is face if I’m ever offered the chance.

  3. knute says:

    What of a situation where the parties to the marriage desire to split their finances and, in order to avoid a hefty tax penalty, seek a divorce with the intent of remarrying thereafter?

  4. jbazchicago says:

    WRONG
    While it is certainly advantageous for the state to recognize a metaphysical reality, it’s not absolutely true.
    I know an elderly couple who has done this for undisclosed financial reasons to simply help pay the bills.

    Morally, this couple is doing nothing wrong.

  5. APX says:

    I was trying to figure out where I heard something like this before, as it sounded very familiar. It was on the Dave Ramsey show and the people in question were trying to get around paying taxes. If this is the case, God cannot be fooled.

  6. Lepidus says:

    Great explanation, Fr. Ferguson! I do wonder about situations where the laws exist, but the state really doesn’t care that much about the basic reasoning behind the laws. Take, for example, the situation you mentioned regarding two older people in the US. The state itself would not care that they were living together and acting as a married couple. They would not be in any trouble for fraud / embezzlement or anything like that. So if they are non-Catholic, there are no legal consequences. It only becomes an issue if they want to satisfy the laws of the Church. Therefore, why wouldn’t the Church allow it? It’s not like they would be aiding / abetting anything that is illegal.

  7. oldconvert says:

    Interesting difference between US and English/Welsh law here (don’t know about Scottish): I know several couples who had been living in sin quite happily for decades, then up and civilly marry in a great hurry when they realise they are getting old, only because under English/Welsh law, inheritance tax (a duty paid on estates over a certain minimum value, including any real property) is not levied when a spouse inherits. Co-habitees have to pay it, children have to pay it, but not widows/widowers. And with the mad inflation of property values in the UK, a lot of people find themselves in that tax bracket. Strange that the secular State should find itself rewarding morality!

  8. Nan says:

    I know a couple like this. Not Catholic. Both parties widowrd. She continues to receive her husband’s pension, which she’d lose, and also ss based on his income.

  9. sahn105 says:

    Can anybody elaborate or provide example of this:

    “…the intervention of the Holy Father (exercising his authority as Vicar of Christ) can end marriage.”

    I was of the understanding that the Holy Father St. John Paul II, said that he has no authority to dissolve a valid marriage.

  10. cwillia1 says:

    The Church recognizes natural marriage and sacramental marriage in its teaching. When a couple marry they have an obligation to maintain conjugal life except for serious reasons -like the safety of the children or one of the spouses. The Church also recognizes a limited right of the state to regulate marriage in the interest of society.

    Now the question is whether the state continues to deal with marriage in its laws and I see this as an open question given what the state has done with no-fault divorce and same-sex partnerships. One could conclude that civil marriage is nothing but an optional tax status and a legal framework for friendship. This is something that the bishops should address as a body for the nation as a whole. This is a policy question. There is no obvious answer. Do Catholic married couples have an obligation to be civilly “married” in the eyes of the law as a part of conjugal life? In the absence of clear direction from the bishops I think people can follow their personal consciences in this matter.

  11. TonyO says:

    quomodocumque, it is true that the Church’s relationship with civil authorities on marriage rules varies around the world. And it is true that the Church, in some times, had to fight against civil authorities and their notions of marriage, but that was especially because those civil officials were actually trying to undermine Catholic marriage.

    Speaking generically, having NO civil law about marriage can indeed work – if you have the right cultural and religious background to support society and marriage. Having neither a civil nor religious authority that regulates it is almost certainly going to be a problem. Across the wide range of societies, smaller societies and those that are more homogenous are going to be able to get away with fewer rules of ALL sorts, not just marriage rules, because with the homogeneity comes better social regulation through non-legal means. Things like shaming and ostracizing, for example.

    But when you have a very large society, where it is not homogenous, and where people and families move around a lot, you are going to have fewer effective non-legal social rules, and then that calls for legal rules to make up for the lack. Like the US.

    Given the size and history of our society, there are a long list of marriage-related matters that necessarily imply that we need something that quite definitely determines who is married and who is not, something that is objective, that rests outside of the couple themselves, that is provable and not subject to easy manipulation. It’s not just a matter of inheritance law, it’s also pension law (who is entitled to survivor benefits), health insurance law (who is “family” entitled to benefits under family coverage?) etc. Taxes: it is obviously unjust to have a tax break for married couples where 2 people just claim it because they want the break, but are not actually married. But the biggest issue is child custody: if there is no clearly discernible and testable objective fact of the matter about whether Jane and Joe are (or were) married, on what basis does the state referee their disputes about child custody when Jane picks up and leaves with the kids? (Or vice versa?)

    Admittedly, some of our current mess is the result of failed tinkering over the last several decades (especially, “no-fault divorce”), but not all of it.

    Oh, for the day when the state could just accept the Catholic Church’s parish records about who got married, and that would put paid to the matter. But without a complete revolution and overturning society altogether, we aren’t going back to that any time soon.

  12. Fr. Timothy Ferguson says:

    sahn105,

    Canon 1142 establishes that the Holy Father, for a just reason, can dissolve the bond of a ratified, but not consummated marriage.

    He also has the authority, often called the Petrine Privilege, to dissolve the bond of a non-sacramental marriage to permit one spouse to enter into a new marriage in the Church.

    I should have also added that, in virtue of the Pauline Privilege, any diocesan bishop can dissolve the bond of a natural marriage entered into by two unbaptized persons when one of them chooses baptism, and the other refuses to remain with that newly baptized person (c. 1143)

  13. Daniel W says:

    I know of a couple who married using canonical form, but refused to sign the civil register of marriages at the end of the ceremony as a protest that the local marriage law explicitly included same-sex unions.
    There is nothing the Church can do about such cases, as canon law only requires that a marriage CAN be recognized, not that it actually is recognized (c.1071: no-one shall assist at “a marriage which cannot be recognized or celebrated according to the norm of civil law.”)
    In fact, I hope more couples refuse to register their marriages. Church law does NOT require such registration!!!

  14. moon1234 says:

    What I see, that I think is FAR more common, is young people who live together and act in every way as if they are married. They have children, make mortgage payments, etc. They remain “unmarried” in the eyes of the state in order for one or both spouses to collect benefits that they would not qualify for if they were married.

    Several examples:

    – Pregnancy and deliver medical care. It is mandatory in most states that the state must pay for it if the woman is not married (in which case her husband would be billed). If she remains unmarried the taxpayers wind up paying.

    – State and federal freebies for “single” moms. Food stamps, WIC checks, Low income assistance, etc.

    If the couple remains “unmarried” then the Father’s income contributes more as the state is supplying aid to the “single” mother. This is happening around the world. Most of these are called the “marriage tax penalty.” Meaning people that live moral lives and get married pay MORE in taxes and fees and have LESS overall income than if they remained “legally” single, but just live as married people.

    So then the question becomes, should the Church deny them a proper marriage before God if doing so means that they are put into poverty? Shouldn’t we view the states attempt to replace the father with itself as an usurpation of the natural order and proper morals?

    As to parental rights, MOST states grant the “father” the same rights whether he is married to the mother or not. Because the state has inserted itself as the “father” in most cases, it treats the biological father the same whether he is married to the mother or not. The ability for a husband to answer for this wife in medical issues has also been stripped away unless a signed power of attorney can be presented.

    Recently my wife was in labor in the hospital and asked for an epidural for pain. She told the doctors and nurses to have me sign whatever consent is necessary. She was in no frame of mind to read three pages of consent and then sign her name. The doctors AND nurses refused saying I, as he husband, could NOT grant consent as I did not have a signed power of attorney on file.

    This recent example of mine says being married in our modern society holds little civil value, other than the ability to TAX you more. The Church would do well to no longer recognize “Civil” marriage. We can’t trust WHAT a civil marriage may be. It could be a homosexual union, it could be an adulterous relationship, etc. I have co-workers who are homosexual and “married.” One of them asked me what I though of their marriage and wasn’t it wonderful. I caused some real strain on the HR department (since they asked me this in public) when I said I don’t recognize their “relationship” as marriage since two homosexuals performing sex acts on each other is sodomy and against both the natural order and my religious convictions. I left it at that and walked away. Have not been asked my opinions on such topics EVER again. It also had the effect of stopping this type of promotion at work.

  15. Imrahil says:

    I also tend to disagree with Fr Ferguson a bit (as quomodocumque did).

    Sure, it is clear that in principle the State does have the authority to rule on the civil effects of marriage.

    But when the State itself on the one-hand only says “marriage means that you say you’re married and aren’t married to anyone else”, and gives concubinage a financial advantage over marriage while doing nothing to disallow, discourage and oust from polite society this concubinage (which the State would in justice be bound to do, so as to not give a sinful relationship an unfair advantage), then the right of the State to put additional burdens on those married in the eyes of God who might “opt out” of the civil effects of marriage as it were is already somewhat difficult to claim.

    (While it is problematic in such a situation to go to the registrar and say, “no we’re not married”, to enter into a marriage without notifying the state authorities is another question.)

    And if the state goes further by throwing all sorts of logs between the feet of actual Families (I’ll just mention the so-called “homosexual marriage”), then that doesn’t take away his right to command obedience in things not unlawful: but it might make defensible the attitude to keep strictly to the line of obedience to the State in everything he actually commands (with sufficient force to render disobedience sinful), and say here, “the State doesn’t care what I do with someone with whom I wouldn’t be married in the eyes of the State. I’ll obey what the State actually demands, but the State doesn’t care whether I’m married to the one I sleep with, live with and educate my children with; and as for shouldering burdens the State does not directly demand under obedience, let the State get a more positive view of families first and then families such as mine might get a more positive view of the State again.”

  16. Titus says:

    Historically, the state has had very little to do with marriage.

    That’s a gross oversimplification. It would be more accurate to say that, historically, the state recognized the limits of its competence with respect to marriage. It was never the case, however, that the state was unconcerned with it.
    ***
    More to the point, however, everyone seems to be missing the elephant in the room: if you don’t like the local laws governing inheritance, go see an attorney and make a will! The fact that the interlocutor references transfers “causa mortis“—a term that actually has a very limited application to certain gifts made during a grantor’s life in anticipation of death—suggests that a conversation with an attorney would be beneficial.
    ***
    Also, to reinforce Fr. Ferguson’s thesis, even if the State did not have a legitimate interest in keeping tabs on who was married to whom, it would be very difficult to obtain a civil divorce under the circumstances described in the question without committing the sin of perjury. Divorce proceedings in many, if not all, jurisdictions require testimony or verified pleadings affirming grounds for the divorce, even if these are only “irreconcilable differences” that prevent the parties from living as husband and wife.

  17. Imrahil says:

    Titus’s last point is spot on.

    (It wouldn’t hold that way, though, in an engaged couple that is only going to marry and thinking about “only doing it in Church” or what the US equivalent of that, not having the priest send in the Registration files or what, is.)

  18. HeatherPA says:

    I am really surprised by the lengths people will go to hold on to money. I know a number of older non Catholics who live with instead of remarry a “boyfriend/ girlfriend” to avoid losing out on SS benefits or other received benefits. I guess I am not surprised to see that some are trying to figure out a work around for Good Catholics.

    Is this any different than closing off oneself to the possibility of conception solely due to possible financial concerns?
    Just curious. As said by another comment above, God cannot be fooled. We do a great job of convincing ourselves of things that work out to our advantage.

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  20. Ben Kenobi says:

    “Historically, the state has had very little to do with marriage.”

    *sigh*. I hate this old canard that is wholly false. Marriage as seen in America dates back – well back to the creation of the English common law. Please read the opinion of the honored justices in Reynolds vs the United States where they affirm the prohibition of so called plural marriages dating back to shortly after the conquest. What do they cite as the justification for their position? English Common Law – which predates the American Constitution. Yes, you read that right. Some laws are older and higher than the US constitution and the marriage law per the ECL is one of them. Obergefell not withstanding.

    Yes, the state – in the English world, has *long* had a say in marriage. I really get frustrated when conservative and well meaning Catholics don’t understand how important it is to fight for marriage in the civil realm preferring to withdraw into the ecclesiastical. Perhaps they haven’t studied the sad history in both France and Mexico where the breach has occurred. Do we really want to emulate their brokenness? No. There is absolutely zero advantage to the Church choosing to break with the State. Every time it has been the State which has chosen to stop recognizing Catholic marriage, which is an aberration of history, given the long connections between the State and the Church going back to Roman times.

    “My marriage to my wife is not of the government’s business.”

    Oh. So you would have no cause to divorce should it be recorded that your wife were previously married? False. Yes, your marriage to your wife IS the business of the government and rightfully so. Were it not – many people would find themselves in invalid marriages – through no fault of their own – because there would not be a marriage registry where they could confirm that someone was already married. Yes, it does happen and yes, it happens with sufficient frequency to cause considerable problems where a marriage registry is not kept.

    Secondly, marriage requires witnesses! This is important. An unwitnessed marriage is not a marriage whatsoever. I know that there are many, many people who live in ‘unwitnessed marriaged’ because it is more convenient to evade the responsibilities – public responsibilities attached to marriage. This is a problem. I am always saddened when I ask a couple that’s shacked up for a long time and they say, “oh, no we aren’t actually married”. Marriage is not a private affair. It is public, which means that the state does have an interest in regulating marriage.

  21. Ben Kenobi says:

    “So then the question becomes, should the Church deny them a proper marriage before God if doing so means that they are put into poverty?”

    Yes, because it is better to remain unmarried than to be cast into poverty. *sigh*.

    Can you boomers please refrain from trashing marriage even further? Please? You’ve already denied me access to marriage as you had it previously, and I had absolutely ZERO say. Please don’t call for the separation of the two forcing me to get both done. Can we not do this?

  22. sahn105 says:

    Fr. Ferguson, thank you for the very helpful clarification!

  23. Imrahil says:

    Dear HeatherPA,

    Is this any different than closing off oneself to the possibility of conception solely due to possible financial concerns?

    As we all know by now, it is possible to avoid pregnancy by morally acceptable means, with an accuracy not smaller than if using the usual sinful means.

    And, to quote Theresa May analogously, morally acceptable means morally acceptable.

    A work-around to help good Catholics with their stubborn refuse to do intrinsically evil acts avoid to lose out in competition with their non-Catholic or non-practicing-Catholic fellowcountrymen who don’t have that “obstacle” is a good thing. There is a sense in which to be defeated by “the World” belongs the usual life of a Chrisian and is to be Born patiently; but that doesn’t amount to accepting it as proper that Christians are to be defeated by “the World”. Hence, if the sins of the worldling can be countered by the work-arounds of the Christian, then on we go!

    (Unless of course someone personally chooses to give a non-obliging sacrifice.)

    That doesn’t mean there always is such a work-around, of course. One must never commit actually evil deeds for whatever good reason. In this specific case, Fr Ferguson and Titus have raised very valid concerns. But to look for a work-around as far as it goes is not a bad thing.