Divorce and Canon Law

Jay Anderson at Pro Ecclesia has up a post about the Bai Mcfarlane divorce project:

The appellate court case involves William (Bud) Macfarlane, a self-professed practicing Catholic who left his wife Marie (Bai) Macfarlane in July, 2003, and sought a no-fault divorce. The divorce was granted against Bai’s objections, and Bud was given permanent custody of the children. The court criticized Mrs. MacFarlane’s opinions and the Catholic Church’s teachings on the sanctity of marriage in its decision to grant custody to her husband, and to forbid her to continue homeschooling the children.

Mrs. Macfarlane laments: “I was forced to stop homeschooling because the court psychologist stated it was bad after second grade, despite the fact that my children scored well on standardized tests. My youngest child is in daycare although I want to care for my children at home. Now, I have no right to make any decision regarding their upbringing. Finally, although we as a family poured our lives into building a non-profit foundation, my husband runs it and I have been ordered to get another job.”

“The court’s ruling gave the father, who works full time, permanent custody and their stay-at-home mom visitation time,” her lead attorney, Safranek said. “This occurred despite the fact that the father did not have a single family member or friend or even an employee who could testify on his abilities to serve as a custodial parent. However, a veritable blizzard of family and friends testified on behalf of Mrs. MacFarlane.”

Mrs. MacFarlane hopes her husband will be ordered to follow the arbitration process required by his church law before seeking civil divorce. “Courts order people to follow the rules they choose in their own contracts everyday; marriage should be no different,” says Mrs. Macfarlane.

Mrs. MacFarlane has taken her case on a parallel track before the Church Tribunals and she is publicizing all these efforts on her website.

Jay brings up some interesting points in his comments box, namely that marriage law is not and should not be treated like contract law because marriage is more than just a contract. Also, requiring courts to recognize Catholic canon law would be setting up a parellel legal system. Do we really want American courts allowing cases to be settled by Sharia law? This is, in principle the same thing.

It seems to me that the problem with demanding that the court order Mr. Mcfarlane to comply with canon law is that the court has no business insisting that anyone follow the dictates of his own religion, nor should it. It's not the job of the courts to enforce religious observance, and in this country we can thank God for that. As Jay points out: "Clearly, no-fault divorce was and is a full-frontal assault on the institution of marriage, and should, for public policy reasons, be abolished. But that's a legislative argument, not a judicial one." Mrs. Mcfarlane's foundation would be better served in pushing for an end to no-fault divorce through legislative means, or in educating Catholics about canon law issues surrounding divorce and annulments, or in establishing better marriage preparation classes or mediation systems. I'm not against canonical penalties for Catholics refusing to abide by Church teaching, even up to the level of excommunication. But I don't think that civil government should have a hand in enforcing those penalties at all. That's not the role of civil government, nor should it be.

And now a few personal notes:

1. Divorced families attempting to homeschool is a BAD idea, in my book. I've always thought that there needs to be a certain minimum parental unity to maintain a good homeschooling environment, both intellectually and spiritually. It is detrimental both to the child's respect for the parent and to the parent's ability to support him- or herself. Though some conservative Catholic parents would dispute it, homeschooling is not always the best way to educate one's child, and some family situations should preclude it altogether. In this I speak from experience: divorce and homeschooling DON'T mix.

2. I think that Bud Mcfarlane writes lousy fiction. His style is deplorable. But his lack of skill as a writer doesn't say anything about his abilities as a husband or father, and since his wife is the only one going public, we don't know his side of the story. This is not a minor consideration.

3. Divorced families attempting to homeschool is a BAD idea.