Lawyer argues divorce case should be transferred to Church tribunal

Cleveland, Ohio, Feb 27, 2005 / 22:00 pm

An Ohio woman’s fight to save her Catholic marriage from civil no-fault divorce took another important turn when Ave Maria School of Law professor Stephen Safranek submitted an argument to the state court.

His memorandum, submitted on behalf of the defendant, Marie Bai Macfarlane, argues that the divorce case must be transferred to a Catholic Ecclesiastic Tribunal for arbitration.

Safranek argues that Ohio law “favors arbitration agreements and seeks to uphold them.” He cited legal precedents in favor of arbitration, including cases where religious tribunals were the arbitrators.

“A failure of the courts to recognize the arbitration rights of the Catholic Church in this case not only violates the understanding Marie had when she entered upon this marriage, it necessarily entangles this court in issues relating to Catholic law, teaching, faith and belief,” wrote Safranek.

After nearly 14 years of marriage, Macfarlane’s husband, William “Bud” Macfarlane, filed for divorce. The former engineer and stay-at-home mother lost custody of her four children to her husband when she insisted on continuing to home-school them.

Her husband’s attorney, Tom Lafond, has argued that the Church should not be allowed to arbitrate the case.

“My husband and I didn’t agree to the minimal government marriage; we agreed to be under the authority of a third party, the ecclesiastic authority of the Roman Catholic Code of Canon Law,” says Macfarlane.

“If either of us wants to separate, we are still obligated to follow the Church’s separation procedures, not the state’s minimum procedures,” she continued. “Ohio law ORC 3101.08 recognizes church's right to marry people 'in conformity with the rules of its church'.”

According to the Catholic Code of Canon law, a person can only seek a divorce from the state after the person has first obtained a separation decree from the Church court as well as their bishop’s authorization. The Church court makes determinations regarding financial support and children.

“I believe in the sanctity of marriage and I want my children home with me,” Macfarlane said.

The Cleveland Tribunal and the Archdiocese of Cincinnati rejected her petition to determine whether her husband has “a lawful reason to leave” the marriage. Her case is now before the highest court at the Vatican, the Apostolic Tribunal of the Roman Rota.

For Safranek’s memorandum, go to: http://www.marysadvocates.org/safranek.html

A petition urging the U.S. bishops to protect families from no-fault divorce is available at www.defendusfromdivorce.com.