Forced divorce argued illegal under terms of Catholic antenuptial agreement

Cleveland, Ohio, Aug 24, 2004 / 22:00 pm

Couples who marry in the Roman Catholic Church are bound by an antenuptial (prenuptial) agreement, which includes specific rules about separation and divorce, according to a brief filed today by Cleveland attorney Bob Lynch, on behalf of his client, Marie (Bai) Macfarlane.

Mr. Lynch has argued, on behalf of his client, that her husband violated the antenuptial agreement, which was willingly consented to by both parties, by separating and filing for divorce without first consulting his bishop, and has thus asked that all temporary orders be dismissed.

In The Code of Canon Law, canon 1153 requires a spouse to first demonstrate to the bishop or the tribunal that there’s an acceptable reason for separating from the other spouse, unless there is “danger in delay”.  Macfarlane’s husband, Bud,  did not first consult with Cleveland’s Bishop Pilla before moving out of the family home and subsequently filing for divorce.  Canon 1692 requires that a spouse receive authorization to “approach the civil forum.”

Mr. Lynch has asked that the Church’s laws be upheld following the precedent in case law of Orthodox Jews who have had their prenuptial agreements upheld by civil authorities.

In response Judge Cheryl Karner made the statement that  “. . .your religious conviction and the contract you entered into in front of your priest, has priority, I can understand that from a religious point of view, but it doesn’t from a secular point of view and doesn’t from a legal point of view.”

Bai had asked the judge to send her and her husband to conciliation services to resolve the conflict at the time the case was first filedm but the judge refused to do so because her husband was unwilling to go.

Stephen Safranek, a professor of Law at the Ave Maria School of Law in Ann Arbor, Michigan, maintains that the contract placing jurisdiction in the courts of the Catholic Church should be granted like other arbitration agreements.

According to Ohio RevisedCode 3117, all counties in the state must institute conciliation programs to help couples who wish to keep their families intact. However, Bai discovered that Cuyahoga County had never instituted any such programs to aid families in trouble.

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