First, I want to say what a pleasure it is to be here, and to thank Fr Mark for

inviting me. But I must admit that I’m a little nervous, since this is not my usual
sort of forum. As a Fellow in Law, specialising in Family and Property Law and
tending towards the liberal end of the political spectrum, I’m perhaps not likely
to be anywhere near the top of a Catholic Chaplain’s speed-dial list when
organising a programme of speakers. This is true even if, or perhaps especially
because, I’m a baptised Catholic and a regular attendee at Sunday Mass. When
we were discussing possible topics, I warned Fr Mark that I might be
controversial. His response? ‘I don’t mind that’. I just wanted to remind him of
that now. More seriously, I don’t mean to cause any offence to anyone with the
topics that I’ve chosen to discuss as an illustration of a general theme, or to make
any specific comment on the personal situation of anyone here or their families
or friends. I certainly don’t claim to have any easy answers and am simply trying
to start a discussion with you. While I can probably be regarded as knowing
something about the civil, secular Law in England and Wales and I want to talk to
you about some of the challenges of teaching Family Law as a Catholic, you
should bear in mind that I’m not any sort of canon lawyer or theologian. You
might think it typical for a lawyer to want to make disclaimers (or ‘trigger
warnings’) of this sort, but perhaps it’s just in my nature!

Let me begin by reading two propositions to you. First: ‘…what God has joined
together, let no one separate’. Secondly: ‘…a petition for divorce may be
presented to the court by either party to a marriage on the ground that the
marriage has broken down irretrievably’. The first is from Matthew 19:6, when
Jesus responds to the Pharisees’ question about whether it’s ever lawful for a
man to divorce his wife. He explains that while Moses permitted a man to
divorce his wife by giving her a written notice of divorce, ‘[i]t was because you
were so hard-hearted that Moses allowed you to divorce your wives, but at the
beginning it was not so’. The second proposition is from section 1 of the
Matrimonial Causes Act 1973, an Act of the United Kingdom Parliament applying
in England and Wales. Perhaps I should be ashamed to admit that I spend more
time in the average academic year pondering the second text than the first: at
least I’m doing my job, I suppose! I could cite countless examples, but at first
glance this seems to be a clear conflict between what might be termed the Law of
God as confirmed in scripture and the Law of the Land, and one that ought to
trouble me as a Family Law scholar. Jesus tells us that a married couple have
been joined together by God, and that no-one should separate them by divorce,
but Parliament has facilitated precisely that by passing the Matrimonial Causes
Act, which is applied on a daily basis up and down the country. The Catholic
Church will not perform or officially recognise a marriage in circumstances
where one of the purported spouses has been a party to a valid marriage and the
other party to that earlier marriage is still alive because, under Canon Law,
‘between the baptised, a ratified and consummated marriage cannot be dissolved
by any human power or for any reason other than death.’ The Compendium of the
Catechism describes the situation of a divorced and remarried person as one that
‘objectively contravenes God's law’. English Law, on the other hand, very much
will recognise and facilitate such a re-marriage if the divorce procedure has been
followed, requiring an assertion that a marriage has irretrievably broken down
evidenced by one of five facts.

Should I just give up and end my talk now? More importantly, what am I to do
when supervising my Family Law students from Robinson and numerous other
Colleges? I certainly can’t tell them that divorce doesn’t truly exist because
marriage is indissoluble, even if that arguably reflects what I’m required to
believe. That would be a lie in the context of the legal system I’m supposed to be
teaching them about, and if they believed me they’d risking fail their exam! But
should I tell them that divorce shouldn’t exist because it appears not to be in
accordance with scripture?

Inevitably, this conflict and the extent to which it requires reconciliation, as

suggested by my title, are not as straightforward as they seem. First, what
constitutes the ‘Law of God’ and what it means has self-evidently been a matter
of continuing debate, and sometimes the cause of ruthless barbarity, for
millennia. Jesus’ own remarks on the topic of divorce seem qualified, since He
later says (in Matthew 19:9): ‘whoever divorces his wife, except for unchastity,
and marries another commits adultery’. This is interesting, since adultery by the
other spouse is a fact that the petitioner can use to establish the irretrievable
breakdown of marriage required for divorce under the Matrimonial Causes Act.
Even so, that exception doesn’t appear in other Gospel accounts, some
translations use different words for ‘unchastity’, and the Catechism of the
Catholic Church states that: ‘Divorce is a grave offense against the natural law. It
claims to break the contract, to which the spouses freely consented, to live with
each other till death. Divorce does injury to the covenant of salvation, of which
sacramental marriage is the sign’. It says so with express reference to Jesus’
words in the Gospel. According to the Catechism, this notion of natural law
‘states the first and essential precepts which govern the moral life’. It ‘hinges
upon the desire for God and submission to him’, and is ‘present in the heart of
each man and established by reason, is universal in its precepts and its authority
extends to all men’. Natural law is said to be ‘the Creator's very good work’, even
if St Thomas Aquinas distinguished between divine law and natural law. So by
saying that ‘[d]ivorce is a grave offense against the natural law’, the Church is
emphasising the sheer extent to which it is apparently impermissible and
undesirable in the eyes of God, itself and even reason.

But other Christian Churches differ in their attitudes to divorce, and we’ve seen
that the purpose of Jesus’ own remarks on the topic was in a sense to ‘correct’
Moses’ acceptance of divorce by written notice, so divorce is accepted within
Judaism still. It’s also permissible under Islamic Law. So the idea that there is a
single interpretation of God’s Law, or indeed natural law, requiring a particular
response in the civil law or otherwise, will often be contested. The Church and
the civil law may also have different understandings of the terms used. For
example, the Catholic Church has a relatively wide understanding of the
circumstances in which a marriage may be regarded as a nullity from the outset
because one or both of the spouses did not validly consent to it. But there are
procedural and substantive legal reasons why someone eligible for a nullity
decree under Canon Law may need or prefer to use the divorce procedure under
the civil law rather than English Law’s own nullity procedure. So a person may
be divorced following marriage for the purposes of the English civil Law but
never have been party to a valid marriage in the first place in the eyes of the
Church. This might reduce the extent of the conflict and thus the need for
reconciliation between the two different sources of law.

A second source of complexity is that, even if for Catholics divorce appears to be

essentially prohibited by Jesus’ remarks and for other reasons, there is the
question of the appropriate response to it where it occurs nevertheless in civil
law, and the Church is more cautious than some may believe. The Catechism
asserts that ‘[t]he separation of spouses while maintaining the marriage bond
can be legitimate in certain cases provided for by canon law’. These include
cases of adultery and of danger to spouse or children, and the circumstances in
which the canon law will permit mere separation have a fair amount in common
with those where the Matrimonial Causes Act will permit divorce. The Catechism
goes as far as to say that: ‘If civil divorce remains the only possible way of
ensuring certain legal rights, the care of the children, or the protection of
inheritance, it can be tolerated and does not constitute a moral offense’. This is
surely highly significant, albeit that it might be doubted whether those
circumstances apply to English Law itself because many of the remedies
associated with divorce are also available on mere judicial separation in the civil
law, which doesn’t formally bring the marriage to an end and leave the parties
free to marry others. Of course, the Catechism is also very sympathetic to those
whose spouses obtain civil divorce decrees without their consent. What’s more,
Amoris Laetitia, the papal apostolic exhortation published after the Synod on the
Family in 2016, emphasises that ‘divorced people who have not remarried, and
often bear witness to marital fidelity, ought to be encouraged to find in the
Eucharist the nourishment they need to sustain them in their present state of
life’, and that those who have divorced and civilly remarried ‘need to be more
fully integrated into Christian communities in the variety of ways possible’. So
the Church recognises that civil divorce exists and that in some (albeit limited)
circumstances it might even be desirable to make use of it. This again reduces
the need for reconciliation between scripture and natural law as interpreted by
the Church and the Law of the Land, since we can distinguish between whether
and in what circumstances it is morally desirable or acceptable for Catholics to
make use of civil divorce and whether it should be lawfully possible at all in
English Law.

Thirdly, there is the question whether, in a tolerant, diverse and multicultural

society, it is appropriate for Catholics to visit their beliefs on consenting adults,
particularly using the law. I’ve already demonstrated that the debate over
whether divorce and remarriage should be allowed, and on what basis, is not
merely a matter of rolling back the tides of secularism but one of genuine
difference between different faiths. The Catholic view of marriage and divorce
was instrumental for much of the time in keeping divorce out of even Irish civil
Law until 1996, for example. But interestingly, the Church there actually told
people that they could vote in the referendum on introducing civil divorce
according to their consciences, and that a ‘yes’ vote was not a sin. The Catechism
is also somewhat nuanced (despite its insistence that natural laws are universal),
since its instructions on marriage and prohibitions of divorce and remarriage are
focused on the baptised. So it is arguably possible to distinguish the sacrament of
matrimony and its consequences as a matter of Canon Law from the civil legal
institution of marriage, particularly since the notion of marriage obviously has a
great deal of cultural and other value outside as well as inside the church. Put
bluntly: the Church has no monopoly on marriage in the contemporary UK.
Going back to Jesus’ own instruction, it applies to those joined ‘by God’, and it’s
surely more than arguable that you haven’t been joined by God at all if you’ve
been married in an entirely secular ceremony at Cambridge Register Office,
particularly if neither of you are Catholic.

This topic raises fundamental issues about whether arguably religiously-inspired

moral precepts should be used to inform the Law of the Land, and to what extent,
which is of course a much broader topic on which I’m not particularly qualified
to speak! It’s a particular matter of concern for natural law theorists even in the
modern world. Such theorists broadly argue that, as one textbook author puts it,
‘there is a kind of higher (non-human) “law”, based on morality’, ‘against which
the moral or legal force of human law can be measured’. We’ve seen that the
Church regards divorce as a grave breach of natural law, and the Catechism
asserts that this natural law ‘provides the necessary basis for the civil law with
which it is connected’. Natural law theorists can broadly, but not entirely, be
contrasted with positivists, who emphasise that ‘law is the creation of human
agents, recognised and enforced by a competent human authority’, irrespective
of a particular law’s merit. A positivist might emphasise that Parliament had the
authority in the context of a democratic society to pass the Matrimonial Causes
Act, whether the Church or anyone else likes it or not. But of course it’s
inevitable that a politician will bring her religious or philosophical opinions to
bear on her decision to vote or not to vote for a particular piece of legislation,
even if it’s possible to debate the extent to which she should do so.

In any case, in the context of my topic it’s noteworthy that even the prominent
Catholic natural law philosopher John Finnis, in a paper that has got him into
difficulty for other reasons, opines that ‘[t]here can…be ground for the law of the
state to diverge from the morally true contours of marriage, just as [Moses’] law
of marriage and divorce diverged [from those contours]’, as explained by Jesus
Himself. This is true even though Finnis is concerned that ‘[t]he wider the
divergence, the greater the risk that real marriage’s intelligibility, and thus its
desirability, will be obscured’. For present purposes, the important point is that
he doesn’t seem to think that civil divorce should necessarily be prohibited,
despite the fact that he’s expressed concern about some of the more liberal
aspects of Amoris Laetitia.

For its part, the Catechism does make the general proclamation that: ‘Divorce is
immoral also because it introduces disorder into the family and into society. This
disorder brings grave harm to the deserted spouse, to children traumatized by
the separation of their parents and often torn between them, and because of its
contagious effect which makes it truly a plague on society’. Strong stuff indeed!
Harm is a good reason to prohibit conduct in the view of even ostensibly ‘liberal’
thinkers like John Stuart Mill, and would justify prohibitions of some other
activities even where there are a variety of views in society. But I should note
that many scholars within my field would say that it is relationship breakdown
(rather than divorce itself) that truly causes damage to children, that prohibiting
or restricting divorce will only increase the scope for bitter recriminations and
conduct that it decidedly un-Christian in itself, and that the priority (chiming
somewhat with the Holy Father’s words in Amoris Laetitia) should be to ensure
proper support for those whose lives have been unfortunately blighted by such
breakdown. Hasson, for example, argues that ‘the role of the law should be
confined to ending relationships in the best possible way, and resolving the
accompanying practicalities’. Given that marriage is an important secular and
legal institution as well as a religious one, this may be an instance where it is
appropriate to ‘[r]ender…unto Cæsar the things which are Cæsar’s’ (Matthew
22:21), which need not involve compromising the Church’s teaching that valid
sacramental marriage is indissoluble both from its own perspective and that of
God Himself.

I think instinctively, my view is that there are circumstances where it is entirely

appropriate for the Law of the Land and divine or natural law, such as it can be
discerned, to diverge markedly and therefore not require reconciliation at all,
particularly in cases where mature and thoughtful adults will disagree with the
Church’s position and using the civil law to try to force them to comply with
Church teaching would arguably do more harm than good. Opposing the
existence of civil divorce and remarriage would be disrespectful of other faiths
and wouldn’t exactly win many converts. Even if Catholics or sympathisers were
in a position to abolish it via legitimate democratic means (hardly likely – Roy
Hattersley’s book successfully conveys the ‘minority’ status of English Catholics
in recent history), it may also prove largely fruitless. In Ireland, before divorce
was legalised, many people simply formed de facto second families while still
formally married to their ‘true’ spouses. If you want another, probably even
clearer, example of where divergence is tolerable or even desirable, think about
how oppressive, pointless and difficult it would be to make adultery a criminal
offence in contemporary England and Wales, however clearly you think it
violates natural or divine law.

As a Catholic, and indeed as a human being, I can of course be sad that many
couples or individuals take the decision to divorce or remarry, and in particular I
can feel sorrow as well as real sympathy about the circumstances that led them
there (although the current divorce rate isn’t as high as some people think, and
it’s at its lowest since 1973). But that need not lead me to the conclusion that
people should be prevented from divorcing (or remarrying) under the civil law,
or indeed that any will have done so lightly, and in fact we’ve seen that even the
Church’s own Catechism and Canon Law takes a nuanced approach to some
extent (albeit not on remarriage).

The divorce law currently contained in the Matrimonial Causes Act is likely to be
reformed and further liberalised soon following the high-profile case of Tini
Owens, which has recently gone all the way to the Supreme Court. Because her
husband has failed to agree to their divorce and his behaviour hasn’t been ‘bad
enough’ to make it unreasonable for her to live with him, she can’t show that the
marriage has irretrievably broken down for the purposes of the Act until they
have lived apart for five years. People (Catholics included, whether they admit it
or not) will differ in their views on Mrs Owens’ case and its implications. Some
will say that her inability to end her marriage easily goes some way towards
reflecting the essential indissolubility of marriage, others will say she is unjustly
‘trapped’ in a loveless marriage and should be free to leave it as a matter of law
and make her own moral choice, while others still will fall somewhere in
between.

In any case, respect for individual autonomy is a core human value, and for me
the use of the civil law as a blunt tool to enforce Church teaching will not always
be desirable if faith is genuinely to be a product of the will. This is particularly
true given that Christians are called not to judge, and to show compassion
towards, others, and that God Himself is our ultimate and merciful judge. But I’m
very interested to hear what you think and I’m happy to try to answer your
questions. So thank you for listening, and over to you!