Saturday, August 26, 2006

Can a Catholic Attorney Be a Divorce Attorney?

Disclaimer: I have no moral authority. The only justification for the following opinion are my many hours of internet research, and soul searching and praying on this topic. I do not evangelize in my practice of law and I respect every person's choice on the topic of religion. I also believe in the necessity of the separation of church and state to allow our government to act for all the people regardless of religion or creed. However, I like everyone, daily struggle to reconcile my vocation with my religion, and I have seen very little about this topic written about from the attorney's perspective. Therefore, in the hope that others may benefit from these thoughts, I have decided to make this post.

In 2002, John Paul II advised Catholic attorneys that they should refuse to take civil cases that promoted divorce. Many people took that to mean that a Catholic attorney could not participate in any divorce actions. This simply is not true, and was not the message of the Pope.

Catholic attorneys should not become involved in civil matters that encourage or promote the division of the holy institution of marriage. However, Catholic attorneys, who take cases in which they act in good faith and moral purity, are merely promoting a peaceful and just resolution to disputes. Good Catholic divorce attorneys who allow themselves to be guided by the Holy Spirit, will find ways to counsel their clients towards a more Christ-like solution to their clients relationship problems. A good Catholic attorney should first and foremost guide his client toward reconciliation with their spouse and should not take any case in which he or she feels that so engaging will destroy a remaining chance of reconciliation. Furthermore, the faithful Catholic attorney should use every opportunity that presents themselves in the divorce process towards seeking reconciliation.

Beyond that I believe that Catholic attorneys can and should engage in the practice of divorce and family law. These Catholic attorneys may become the only voice of moral wisdom for a client who finds themselves in a confusing secular system of family courts. They may be the factor that will prevent a painful process from becoming descending into a vengeful winner-take-all battle that keeps Christ's love from entering the hearts of the clients. They may be the only rational voice for the best interest of the children of divorce- who are innocent victims caught in the middle and sometimes their welfare is forgotten about by embattled spouses.

It must be remembered that Catholic divorce attorneys are only dissolving the legal civil bonds. They cannot ever destroy the Holy bonds which tie a married couple together. A Catholic attorney can assist a party in ending the civil bonds that have tied them to another if the reasons are just- such as to obtain child support, or effect a just division of property so a spouse who is no longer being financially support can survive. Remember that the Catholic Church does not forbid a married man and woman to live apart if living together becomes destructive to them. The civil divorce only dissolves the legal and financial bonds. It can never dissolve the holy bond.

However, Ia Catholic attorney sins if they knowingly use their powers to obtain a divorce for unjust and sinful reasons such as so a client can marry another person or so they can otherwise commit adultery or other sins.

The following is an excerpt from the Catholic Encyclopedia which summarizes the duties of the Catholic Divorce Attorney:

"From the Decree of the Holy Office, 19 December, 1860, in answer to the Bishop of Southwark, it is clear that in England an attorney may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority a Catholic attorney may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which now therefrom. "


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