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61 Jurist 290 (2001)


On January 28, 2002, Pope John Paul II focused his annual address to the officials of the Roman Rota on the topic of the indissolubility of marriage. At the conclusion of this theological and canonical analysis, the Holy Father made a few short statements cautioning civil lawyers about divorces cases. The following day, a story in The New York Times carried the headline "John Paul Says Catholic Bar Must Refuse Divorce Cases." The article construed the pope's reference as a blanket prohibition against Catholic lawyers handling divorce cases. It further questioned whether the prohibition contradicted the Pontiff's prior emphasis on compassion and pastoral sensitivity for divorced persons. The reaction to the pope's address was certain to cause some concern among Catholics who take pontifical teaching seriously, and especially among those of us who are attorneys. More careful examination, however, reveals that the pope's statement flows from a well-developed and coherent doctrine on marriage, which belies a reductionistic approach. In this brief article, I provide an overview of the scriptural and historical tradition as well as contemporary theoretical underpinnings of the principle of indissolubility. My modest purpose is not to present a comprehensive study, but to attempt a fair exposition of the Holy Father's remarks and their application to lawyers and judges.

Pope John Paul II's advice to lawyers about divorces cases was a bit more nuanced than the media depicted. The papal position reflects the radical teaching of Jesus and its rich development through two millennia of Catholic tradition. Given the culture of divorce and its negative impact on individuals and society, the Holy Father has affirmed the principle of indissolubility to advance the sanctity of marriage and family life. In accord with the principle, Catholic lawyers should not contribute to the culture of divorce, but they should be active participants in establishing a legal order that promotes genuine human fulfillment and social well being. When divorce remains the only way to ensure certain good effects, the lawyer as an independent professional may facilitate the case consistent with the right intention of the client. For judges and lawyers who enjoy less autonomy in the selection of cases, the traditional norms of material cooperation apply. This requires a careful consideration of the issues of proportionality. The application of the norms of proportionality does not afford simple answers and must be considered on a case by case basis. The Catholic judge or attorney who handles a divorce case should guard against an unreflective and technical approach, and rather always be guided by the truth of the tradition, which respects individuals and the common good.


Reprinted with permission of Jurist (Catholic University of America).



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