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Civil Divorce and Cooperation with Evil
(excerpt from Conte, The Catechism of Catholic Ethics, n. 436 - 437)

.436. The Address of John Paul II to the Roman Rota

The Roman Rota deals with appeals concerning cases of Church law. In the quotes below, the Pope relates unjust laws on divorce and civil unions to the concept of cooperation with evil.

"The essential witness to the value of indissolubility is given through the married life of the spouses, in their fidelity to the bond, through all the joys and trials of life. However the value of indissolubility cannot be held to be just the object of a private choice: it concerns one of the cornerstones of all society. Therefore, while all the initiatives that Christians, along with other persons of good will, promote for the good of the family (for example, the celebrations of wedding anniversaries) are to be encouraged, one must avoid the risk of permissiveness on fundamental issues concerning the nature of marriage and the family (cf. Letter to Families, n. 17)." [Address of Pope John Paul II to the Prelate Auditors, Officials and Advocates of the Tribunal of the Roman Rota, 28 January 2002, n. 9.]

Christians have a moral obligation to promote true marriage over false ideas about marriage, and to guard the goods of marriage and family.

"Among the initiatives should be those that aim at obtaining the public recognition of indissoluble marriage in the civil juridical order (cf. ibid., n. 17). Resolute opposition to any legal or administrative measures that introduce divorce or that equate de facto unions -- including those between homosexuals -- with marriage must be accompanied by a pro-active attitude, acting through juridical provisions that tend to improve the social recognition of true marriage in the framework of legal orders that unfortunately admit divorce." [Pope John Paul II to the Tribunal of the Roman Rota, 28 January 2002, n. 9.]

Civil divorce, for spouses who have the valid Sacrament of Marriage, is permitted under Church teaching, only in cases of grave necessity, and even then, the bond of the Sacrament of Marriage remains.

Catechism of the Catholic Church: "The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law. 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." [Catechism of the Catholic Church, n. 2383.]

The couple is divorced only under secular law; in the eyes of God they are still married. Such a separation and its legal recognition is only moral for a grave reason, such as to protect one spouse against abuse by the other spouse, or to protect the right of one spouse to continue to worship God as a Catholic Christian.

"On the other hand, professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce. For judges this may prove difficult, since the legal order does not recognize a conscientious objection to exempt them from giving sentence." [Pope John Paul II to the Tribunal of the Roman Rota, 28 January 2002, n. 9.]

Civil divorce is not intrinsically evil, and so cooperation with civil divorce is material cooperation, not formal cooperation. The Pontiff does not state that involvement in divorce cases, by a lawyer or judge, is never licit, since material cooperation is sometimes moral, depending on the circumstances. This position contrasts sharply with what the Pope says on cooperation with intrinsically unjust laws (e.g. on abortion or euthanasia), since that cooperation is formal cooperation and is always immoral.

"For grave and proportionate motives they may therefore act in accord with the traditional principles of material cooperation. But they too must seek effective means to encourage marital unions, especially through a wisely handled work of reconciliation." [Pope John Paul II to the Tribunal of the Roman Rota, 28 January 2002, n. 9.]

.437. The morality of material cooperation depends on the comparative moral weight of the good and bad consequences. If the good consequences are proportionately grave (weighty), so that they outweigh the bad consequences, then material cooperation is moral. Again, there is no question raised of whether the material cooperation is immediate or mediate. Only the proportionality of the good and bad consequences is considered. A judge who hears a divorce case, and a lawyer who has a client in a divorce case, are engaging in a type of cooperation that is categorized, in the usual approach, as immediate material cooperation; their acts are essential to the sin of the married couple in obtaining a divorce when the circumstances would not justify a divorce (a sin under the third font, not the second font). Yet the Pontiff does not teach that, in such a case of immediate material cooperation, the cooperation is always immoral. Again, there is no magisterial teaching asserting that immediate material cooperation of any type is always immoral. In fact, some magisterial documents, such as this Address, imply that immediate material cooperation is not always immoral, and that the morality of all material cooperation depends on the proportional weight of the consequences.

"Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce. They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order (cf. Catechism of the Catholic Church, n. 2383). In this way, with their work of assisting and reconciling persons who are going through a marital crises, lawyers truly serve the rights of the person and avoid becoming mere technicians at the service of any interest whatever." [Pope John Paul II to the Tribunal of the Roman Rota, 28 January 2002, n. 9.]

In this section, the Pontiff teaches that we should always decline to cooperate with any end contrary to justice, "as is divorce." Now all three fonts are directed each to its own type of end: the intended end, the moral object, and the end results (consequences) of the act. So we must determine the type of end that he means. The Church permits some recourse to civil divorce, even while the bond of the Sacrament remains, yet he gives the example of divorce as an end contrary to justice. And his next statement allows for cooperation with divorce in certain circumstances. Therefore, the Pontiff was not referring to intrinsically evil acts, but instead to intention and circumstances, both of which are types of ends. This interpretation is confirmed by the subsequent statement that the intention of the client must not be against marriage, but in favor of justice, such as the equitable distribution of goods, and that the divorce may morally seek certain good effects (i.e. consequences) that cannot be obtained outside the legal process.

But understood more generally, the Pope is teaching that we "should always decline" any type of cooperation in which any end, the intended end (explicit cooperation), the moral object (formal cooperation), or the end results (the moral weight of the consequences), is "an end that is contrary to justice." In other words, we must refuse to commit acts of explicit cooperation, acts of formal cooperation, and any acts of material cooperation in which the consequences, in the totality of their moral weight, are immoral. So if any one font is "contrary to justice," then that act of cooperation is immoral.

Again, this confirms the three fonts approach. Cooperation in cases of divorce requires a good intention in the first font. Any act done with a bad intention is a sin. And if a cooperative act intends either an evil moral object in the second font, or the bad consequences in the third font, then the cooperation is explicit cooperation and is immoral. The Pope indicates this truth when he states the requirement of good intention on the part of the client, and therefore also on the part of the lawyer. Then, concerning the circumstances, the good consequences of securing legitimate ends, such as obtaining goods needed for a livelihood or obtaining the return of personal possessions, must outweigh any bad consequences. Here the third font applies, making this act material cooperation, not formal cooperation. For these reasons, the Pope permits lawyers and judges to cooperate in divorces, under the principle of material cooperation.

However, we should bear in mind the words of our Savior: "Everyone who divorces his wife and marries another commits adultery. And whoever marries her who has been divorced by her husband commits adultery." (Luke 16:18). If a divorce is directed at the end of enabling a subsequent marriage to another, while the bond of the Sacrament remains, then the act of obtaining a divorce is intrinsically evil because it is formal cooperation with adultery. If an attorney were to formally cooperate with such formal cooperation, he also would be committing an intrinsically evil act of formal cooperation with adultery.

Moral cooperation with an intrinsically evil act is only possible if the cooperation is material, not formal, meaning that the cooperation does not assist the other person in obtaining an evil moral object, but only assists in attaining the consequences of the act. In such cases, the good consequences must outweigh the bad for the act of material cooperation to be moral.

by Ronald L. Conte Jr.
Roman Catholic theologian
(excerpt posted on 13 October 2010)

For an in-depth explanation of the basic principles of Catholic moral theology
and their application, see my book: The Catechism of Catholic Ethics

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