Church and State on Divorce
[I posted an earlier version of this essay, which I have now removed. I had erroneously criticized the Catechism for ignoring the suffering of children of divorce. A wiser voice corrected me. My only excuse is that I find the Catechism much harder to study than St. Thomas Aquinas.]
[This essay, as updated, has been published on Catholic Insight (catholicinsight.com), an excellent website in Canada. Its editor, John Paul Meenan, is the “wiser voice” that corrected me. I encourage you to take a look.]
In Mark 10, Jesus is asked by the Pharisees (“to test Him”) whether divorce is lawful. As He admits, the Law of Moses (Deuteronomy 24 and elsewhere) permitted divorce under some conditions. But Jesus argued more broadly, basing His words on the second chapter of Genesis, “the two will become one flesh.” Therefore, Jesus says, “what God has joined together, let not man put asunder.”
The Mosaic Law on divorce is complex, but the overriding sense is that it is at best a necessary evil caused by unnecessary (and worse) evils. (As Jesus explained, “For your hardness of heart Moses wrote you this commandment.”) Adultery and abuse were the commonly accepted justifications. Remarriage of divorced persons was permitted in some cases and prohibited in others.
Throughout the Bible, many aspects of divorce are addressed: Matthew 19:12 echoes Mark. Malachi 2:16 is strong: “For I hate divorce, says the Lord.” Luke 16:18 condemns re-marriage. Deuteronomy 24:1-4 even addresses serial divorce-and-re-marriage! But one omission is glaring: there is not a word about child custody. The impact on the children receives no more consideration than it does in a modern American courtroom, where children are an afterthought at best.
In biblical (especially New Testament) times, the concept of family meant a father, a mother, and their children (along with any dependent grandparents). The idea of an intentionally childless married couple did not exist (perhaps because effective contraception did not exist). Children were valued as workers in support of the family, as caretakers in parental old age, and as inheritors. Many other reasons probably factored into what was in all likelihood not a conscious decision (to procreate) at all.
St. Thomas Aquinas comes at the divorce issue from an interesting tack: the natural law. This “intention of nature” holds our fundamental understanding of right and wrong (sometimes called the First Grace, followed by the Mosaic Law and finally Jesus’ Law of Love.) It is the law that St. Paul ascribes to all, even the gentiles, as innate in our humanity (in Romans and elsewhere). Here is St. Thomas:
“By the intention of nature, marriage is directed to the rearing of offspring, not merely for a time, but throughout its whole life… Therefore since the offspring is the common good of husband and wife, the dictate of the natural law requires the latter [husband and wife] to live together forever inseparably; and so the indissolubility of marriage is of natural law.” (“I answer that…”,Supplement Q67. A1: my emphasis added)
In response to the (very modern-sounding) objection that some couples are infertile, and therefore marriage cannot be directed primarily to offspring, Thomas patiently explains:
“Marriage is chiefly directed to the common good in respect of its principal end, which is the good of the offspring; although in respect of its secondary end it is directed to the good of the parties…Hence marriage laws consider what is expedient for all rather than what may be suitable for one.” (Reply to Obj. 4)
Note that St. Thomas does refer to “the good of the parties”, sometimes described as the unitive principle; but he calls it secondary to the good of the children.
It is also worth noting that this is from his Summa Theologiae, which is based on both revelation and reason. He could have based the indissolubility of marriage first and foremost on biblical grounds: Genesis and Matthew/Mark. But instead, he bases his answer on natural law. One would expect this non-theological approach in his Summa Contra Gentiles, in which he argues from reason and nature, without divine revelation, to attain truth; and one is not disappointed:
“Hence, as law is instituted for the common good, the function of procreation ought to be regulated by laws divine and human. Now the laws laid down ought to proceed on the basis of the dictate of nature…Since then there is in the human species a natural exigency for the union of male and female to be one and indivisible, such unity and indissolubility must needs be ordained by human law. To that ordinance the divine law adds a supernatural reason, derived from the significancy of marriage as a type of the inseparable union of Christ with His Church…” (Chapter CXXIII)
His reasoning is consistent: marriage is a matter of natural law directed at the welfare of children, creating the future and thereby benefiting society. Revelation adds a secondary, supernatural reason, related to the unitive principle, based on scripture (Genesis).
St. Thomas, were he writing today, might find that contraception (and abortion) has divided marriages into two kinds (or “species”, to use one of his favorite words): families with children and those (contentedly or intentionally) without: procreative families and non-procreative ones. His reasoning cited above about infertile couples would have to take into account the very large number of intentionally childless marriages.
The problem is reflected in our terminology. “Divorce” (from the Latin divorto, “to turn different ways”) is usually defined as a legal dissolution (or dissolving) of a marriage contract or covenant. “Marriage” is defined as the legally or formally recognized union of two people. Two people: two adults. And the children? Collateral damage. Property to be divided.
We don’t even have a word for a divorce where children are involved. Whenever we use one word to describe two very different events, things can get confused. Divorce of two childless adults can be many things, from tragic to trivial. But divorce involving children is another thing: innocent children are victims, always hurt, traumatized, brutalized. What they experience is the destruction of their family and their world; a destruction inflicted upon them by those same adults who brought them into existence and have the duty to protect them. For a child, divorce dissolves not a contractual relationship, but a world.
Thus, linguistically we trivialize the suffering of these children. Separation of childless adults is properly called divorce; but divorce with children should be described as it is: family destruction and child abandonment. It is today the one form of child abuse that is not only tolerable but even respectable. (Transgenderist chemical, psychological, and surgical mutilation of children is a new and growing area, but that is for another conversation.)
Despite our popular myth of the “amicable divorce”, children know better. How often a child must listen to the comforting words of the customary speech. “It’s not your fault. Sometimes grownups just grow apart. It doesn’t mean we don’t love you. I’ll still be your Dad.”
The importance of this issue cannot be exaggerated. The social pathologies that plague western society today may be traced to many causes, but one of the most obvious is the weakening of families. Poverty in America is largely traceable to single-parent households, as violent crime is largely traceable to boys raised in fatherless households. 35% of American children are in single-parent households, 25% specifically fatherless. And that 25% accounts for 63% of youth suicides, 90% of homeless and runaway youths, 71% of high school dropouts, 70% of youths in state institutions, and 75% of youths in substance abuse treatment. [source: Annie E. Casey Foundation, Kids Count Data Center]
The enactment of “No-Fault Divorce” laws has been one of the accelerants of societal breakdown. It has given men (and increasingly women) a free pass to abandon those most dependent on them, without stigma or rebuke. The first such law was adopted by the Russian Bolshevik government in its first months in 1917 (though it only applied to childless couples). In the U.S., California led the way in 1969. These laws, which some men whimsically describe as “get-out-of-jail-free cards”, totally reversed the nature of divorce proceedings. Previous law operated like employment contracts or laws permitting “termination for cause” or “for just cause.” “No-fault” divorce amounted to the analogue of “at-will employment”; the employer could fire an employee for no more reason than that she had become tiresome, or that he had found a replacement he found more appealing.
The cascade of broken families resulting from enactment of “No-Fault Divorce” laws has been one of the principal accelerants of societal breakdown. It has given men (and, to a lesser extent, women) a free pass to abandon those most dependent on them, without stigma or rebuke.
It goes without saying that there are legitimate reasons for divorce, abuse being the most obvious. The Church to its credit has used the annulment process to deal with marriages so fatally flawed. The Gospel of Matthew also defends divorce for adultery.
Some argue that the institution of marriage is itself in the process of dissolution, so it’s no big deal. Cohabitation, “proud” single parenting, and unashamed male abandonment are making divorce irrelevant. One may ponder which came first, cheap divorce or cheapened marriage. Like most such “chicken-or-egg?” arguments, it is pointless; both need serious attention. But easy, non-judgmental “no-fault” divorce has left marriage in a desperately weakened condition, and mainstreamed the society-wide tragedy of children psychologically crippled by parental abandonment.
We come now to the current turmoil involving divorced/remarried Catholics. With the present papal incumbent moving to downgrade the seriousness, even the sinfulness, of divorce/remarriage, divorce appears to be viewed everywhere as less of a problem, even in the Church founded by Jesus. If the Church moves forward with “normalization” of divorce, it will only be making matters worse.
What seems to be lacking is the natural law, which a return to St. Thomas Aquinas could correct. The Church should consider, in light of natural law, the difference between simple divorces and divorces with children. The Church must lead the way in this, given the extent to which our secular society has decided to act as if the children of divorce are invisible (along with society’s rejection of both natural law and Judeo-Christian morality). The state could, of course, make a start by limiting no-fault divorce to childless couples. But that would require a state willing to confront what Christopher Lasch called “our ‘child-centered’ society’s icy indifference to everything that makes it possible for children to flourish and to grow up to be responsible adults.” [“The True and Only Heaven”]. But that will not happen.
The Church can and should address the problem with St. Thomas Aquinas and the natural law, rather than normalize it with the confusions of Amoris Laetitia.
O Ben Finiti 