The Family Law News Blog

Using marital contracts to stabilize marriages: past, present, and possible

 Über ehestablisierende Rechtstechniken

On Marriage-Stabilizing Legal Techniques

 

by Prof. Dr. Hans Hattenhauer

 Christian-Albrechts-Universitaet zu Kiel,
Christian-Albrechts-University, City of Kiel

Zeitschrift fuer das gesamte Familienrecht (FamZ) 1989, page 225 et. seq.

Summary and Explanation by Antje S. Heinemann, J.D., with assistance by John Crouch, J.D., and Susan Winston, J.D. candidate, University of Miami School of Law

 

In this article Prof. Hattenhauer deals with the need to stabilize marriages and the legal instruments and techniques to do so.

As marriage is a lifelong relationship it is always endangered by its duration. Because of the changes of various circumstances such as society, the spouses’ financial situation and economic development/expansion etc., marriage has lost a lot of its functions and is therefore today even more deemed to be only a short-term rather than a long-term “operation”.

But how have humans in history of mankind been able to make marriages work as a long-term relationship and make this long-term relationship an ideal of a marriage? Knowing that trust of only biological/emotional forces and the spouses’ good will are not enough to make a marriage a “long-term operation”, former cultures have stabilized it with various techniques.

As Hattenhauer states that there is up to now hardly no fundamental scientific research on this issue, he limits his point of view in his article to marriage-stabilizing legal techniques. This makes him first think of some very general questions such as: What is society’s moral understanding and what is universally valid? What is the general social consensus that courts must respect? At what point is the jurisdiction exceeding its authority when it determines what the ideal of marriage?

To find answers he works with various theses:

Thesis 1:

Marriage is the foundation of family. Family is based on marriage and – at best – includes children. In contrast to this, any other model of a “family” such as homosexual cohabitation, a commune or heterosexual cohabitation without being married is not legally binding and it can therefore not achieve the same privileges as a marriage.

Thesis 2:

Marriage is an “enterprise for maintenance”. As society has changed into an industrial society and the welfare state has been established, marriage has lost a lot of its maintenance character and functions. However, it has never totally ceased to be an “enterprise for maintenance”, which is shown by the unbroken importance of support payments. This support for spouses and children will never be completely replaced by government.

Thesis 3:

In addition to this financial “maintenance”, marriages also give enormous personal and emotional support. This support is not replaceable at all. Today, this support is even more appreciated than ever before.

Thesis 4:

Up to now the maintenance character of marriage (both financial and emotional) has been obvious. After the long-term period of upbringing the children the period of growing old usually began. The parents then needed support and care-taking themselves.

But increased life expectancy, both parents’ working, and the social security system have created a completely new period between these two periods. During this phase the spouses are usually not aware of their mutual maintenance obligations and therefore the duration of marriage is weakened. As also sexual morality has changed, marriage has furthermore lost a lot of its sexual maintenance character.

Thesis 5:

The ecclesiastical sacrament of marriage has been replaced by the civil marriage. Today, marriage is legally understood as a contract.

Thesis 6:

Although we see today all these changes to the maintenance character of a marriage, there is still a huge private interest for stability in marriages. It is important for governmental authorities to assure a process of stabilization, as stable marriages ensure the people’s life quality.

Thesis 7:

People entering a marriage often have to make sacrifices such as giving up parts of their personal freedom or privacy. As some kind of compensation the state is giving them married privileges and protection by law. Art. 6 GG, (i.e. Grundgesetz, the German constitution) for example, protects family and marriage. To give the same bonuses to other, less legally binding, types of relationships won’t be justified. These bonuses are such as, but are not limited to, support, inheritance, child custody, and in case of dissolution of marriage, a system to solve conflicts as the law determines alimony, support, division of pension rights etc.

Thesis 8:

As, because of the great public interest in long-term marriages, smart states have developed certain marriage-stabilizing policies, they have laid down marriage and family in the constitution.

Thesis 9:

The history of occidental marriage has been the history of the privatization of marriage. Marriage has become more and more a subject of the couple’s dispositions. Today spouses can determine nearly everything regarding their marital relationship. Since spouses can do so, such agreements, their compliance and their enforcement, need protection by the government.

Thesis 10:

The process of privatization is neither irreversible nor deplorable. Privatization is justified as an act of liberation from governmental constraints.

Thesis 11:

After the breakdown of the middle-class model of marriage (after 1968) as the “moral monopoly,” we find today a pluralism of ideals of marriage. The question today is: What kind of law do we need in times of pluralism, which does justice to all models and groups? What kind of law does not impose too much stabilization to the ones not interested, and does not refuse to give stability to the ones who ask for it? How can the government take care of marriages and create a law that meets all interests? How does a catalog of acknowledged ideals of marriages look like?

In the history of marriage, the non-formal (regarding the entering and dissolution of marriage) Roman marriage, the “matrimonium liberum”, has been surprisingly durable. Alfred Soellner has stated that the reason for this stability was the use of a certain legal technique: the dowry, the “dos”. The dowry was the father-in-law’s contribution to the husband in a considerable amount of money to give the marriage a binding character. The marriage and the financial contribution were strictly connected. Conversely, only an endowed marriage was acknowledged as a valid marriage. A marriage without dowry instead was regarded as void.

The dowry was highly important to wives. It was so important that the father-in-law sometimes had to impose it on the husband. The financial contribution was also a matter of the wife’s reputation. A woman who was not endowed was contemptuous. If the family was poor, the daughter sometimes had to go to the brothel.

The purpose of the dowry was to stabilize the marriage: The profits made out of the financial contribution were used to maintain the family, especially during the first years. The ongoing sanctions in case of conflicts guaranteed the existence of the marriage. Both spouses had to take care of the marriage to be entitled to the benefits of the financial contribution. In case of adultery or filing a divorce, e.g., the wife lost all her entitlements for the return of the contribution in total. If the husband wanted to commit adultery or wanted to get divorced he had to be afraid of losing the dowry, which helped to keep him from doing so. It was also possible for the wife to determine a contractual penalty for the husband, which he had to pay if he had a concubine. In general one could say: He who wanted to give his wife back had to give the contribution back.

According to Hattenhauer this was the reason why marriages without dowry had always been more endangered by divorce than others, and why the Romans preferred marriages within one’s station. A poor wife could be easily rejected but in case of a high dowry the rejection always meant a bad loss. On the other hand, a marriage with a high dowry was sometimes quite difficult to handle for a poor husband, because then he had to endure the moods of his rich wife. Thus, the Romans found the ideal marriage where there was a dowry and the financial background had been equal.

 Hattenhauer then describes the marriage in the rabbinical-talmudical law and states that it was quite similar to the Roman model: Without a trousseau a woman was not allowed to marry. If necessary the money was taken from the community’s funds for the poor. In addition to that, there was also the dowry (which could be in property or money). The dowry always continued to be the property of the wife but was administrated by her husband, who often had a right of usufruct of it. The couples necessarily had to settle upon a marital agreement. Beside certain other agreements the spouses agreed about the “Ketubah”, which was the sometimes considerably high amount of money the husband had to pay in case of the dissolution of marriage (divorce or death). The amount had to be in accordance with a minimum sum and depended on the amount of the dowry. A marriage without a “Ketubah” was not completely valid and considered as a concubinage.

 Hattenhauer states that both dowry and “Ketubah” stabilized marriages. As the capital stock usually was invested in the husband’s enterprises, his cravings for divorce were reasonably minimized. On the other hand a mean wife, whose “Ketubah” had been high enough, could sometimes leave the husband desperate. To explain this dilemma Hattenhauer cites the case of Rabbi Nachman: He couldn’t get divorced from his mean wife because the “Ketubah” was too high, but his disciples finally collected the money to pay him off and gave him freedom.

The purpose of the “Ketubah” to stabilize marriages was clear: The rabbis created the “Ketubah” to make it more difficult for the husband to leave his wife.

Hattenhauer then examines the German model and states that the German law did not adopt the Roman model schematic. In the 17^th – 19^th century it was held that the common marital agreements in Germany didn’t comply with the narrow frame of the Roman “pacta dotalia” because they were not limited only to financial transactions. Up to the effective date of the BGB, (Bürgerliches Gesetzbuch, i.e. Civil Code), January 1900, the Germans and Europeans practiced marriage-stabilizing by using various kinds of marital agreements. They had various names, varieties, and a high practical importance. They had such names as pactum dotale, pactum nuptiale, Ehepakt, Ehegedinge, Ehestiftung, Eheberedung, and Brautlaufbrief.

A marital agreement was defined as any legal transaction that determines rights and obligations of spouses. The essence of those agreements was that there were personal and financial agreements at the same time. However, the financial settlements – the agreement about the husband’s or wife’s financial contribution to the marriage – predominated. Being an important financial source for the maintenance of the family, the assets were important to stabilize marriages. The husband administrated the estate and was liable for its continued existence. In these marital agreements the spouses could also agree about the husband making a contribution to the wife in return, or a security payment for the dowry.

Those types of marital agreements were not only settled between rustic, but also aristocratic, spouses.

Beside the above mentioned possible settlements the German marital agreement in these times above all also contained agreements about inheritance (wills or any other kind of inheritance transactions). The spouses, e.g., agreed about the future of financial contributions, reciprocal assigning, and provision for children. The husband also often agreed that his heirs had to support his wife after his death. Thus, marital agreements and agreements about inheritance went hand in hand. The variety of such agreements was enormous, especially in the area of non-codified law, where spouses had creative scope.

The personal decisions in marital agreement included mainly decisions about parenting, religion or an agreement about the place of residence. The custody often was transferred completely to the wife. The spouses also settled agreements about support and education of the children in case of their divorce or agreed about contractual penalties if for example one of them refused the performance of matrimony.

 Hattenhauer states that there are good grounds to consider the German model as a Christian model. In comparison between the Roman and Jewish model on one side and the Christian model on the other side you will find that the most important difference is that the church never stabilized marriages by using financial transactions. As the Christian model of marriage, the holy sacrament, can never be dissolved, and assets were not necessary to enter one, this model didn’t need financial transactions. In addition to that, social classes were not important at all, and even poor people or slaves could enter a marriage.

According to the Roman model the limits of contractual freedom only were the compulsory law and morality. The various effective laws in former times gave the spouses different kinds of creative freedom. The “Preussische Allgemeine Landrecht” from 1794 hardly contained hardly any regulation about marital agreements, but regulated everything regarding the marriage itself. The “Saechsische Buergerliche Gesetzbuch” from 1863/1865 regulated everything in great detail.

All those regulations described as what is today known as the principle of morality, § 138 BGB (Buergerliches Gesetzbuch, the German Civil Code). According to the institutional character of a marriage as an ideal in the 19^th century, a marriage rather was a moral than a legal phenomenon. Morality was then the most important limit on the freedom of contracts. In those times it was therefore determined in a very detailed manner what kind of agreements were void because of immorality: any agreement in which the spouses:

- assigned the wife to the husband’s power

- waived matrimony, sexual intercourse and joint residency

- waived the obligation of reciprocal care-taking

- excluded any litigation regarding marriages

- took away the husband’s benefits from the wife’s financial contribution such as the dowry

- adjourned the maturity to make the dowry to a date after the dissolution of this marriage

- conceded the other spouse the right of adultery or criminal behaviour

- limited the husband’s liability to administrate the wife’s dowry

An agreement was also void when it deprived the surviving wife of her property and gave it to the husband’s relatives after his death. In those times, people nonetheless believed that the above-listed limits gave the spouses enough contractual freedom.

According to Hattenhauer the end of this type of marital agreements came with the creation and effective date of the BGB (Buergerliches Gesetzbuch, i.e. the German Civil Code) in January 1900. From that time on, a marital agreement was defined as a contract which only determines the system of marital property. It did not determine any other kind of financial or personal matters. The 1901 book of annotations, Planckscher Kommentar, stated that a marital agreement is a contract used by spouses to determine their system of marital property. On the negative side you can not understand it as a contract which determines personal matters such as the wife’s obligation to follow her husband or the decisions about parenting, etc. Whether such agreements are valid and can be enforced depends on their accordance with the nature of marriage and morality. However, such agreement is not a marital agreement pursuant to § 1432 BGB.

From that time on, people didn’t acknowledge agreements about any personal matters anymore, even if they had done so in a tradition of hundreds of years. According to Hattenhauer the annotation shows the skeptical understanding of the validity of such contracts very clearly, because it points out the fact that such contracts had to be in accordance with the nature of a marriage. Because the BGB was understood as defining the nature of marriage in those times, consequently every agreement about personal matters was void, because it differed from the model described in the BGB.

The annotation to the first draft of the BGB had the same understanding:

“The draft acknowledges the principle of contractual freedom. However, it also points out the limits of contractual freedom. An agreement can only be valid as long as is not in contradiction to the nature of marriage. Agreements about the regulations regarding the marital status of spouses such as e.g. their legal relationship are void in general because those regulations are the necessary essence of marital relationships.”

By citing Art. 199 EGBGB (Einfuehrungsgesetz zum BGB, the Introduction Act to the BGB) Hattenhauer reaches the conclusion that the German law in those times didn’t favor such marital agreements anymore:

“The personal relations between spouses, especially their obligation to pay support, are determined by the regulations of the BGB, even if they concern a marriage before the effective date of BGB.”

Hattenhauer believes that the purpose of this was to eliminate agreements regarding personal matters in general. In his opinion, therefore, The Marital Agreement by Albert von Baldigands (1906) was a fundamental book which pointed out that such agreements are no longer marital agreements.

Regarding this new legal understanding of marital agreements Hattenhauer cites two cases:

In 1900 a court had to decide about an agreement in which the husband agreed to have his place of residence at the wife’s land property, and promised to cultivate the land. The wife sued the husband, and the court held that she had no right to demand performance of the agreement, because only the husband had the right to decide about the place of residency (pursuant to § 1354 BGB). It was also held that even if the agreement had been valid until the effective date of the BGB, it had become void.

In 1905 the courts had to decide again about a marital agreement made before the effective date of the BGB. In this case the husband had waived his right to administrate the wife’s estate, and had waived his right to use it. In consideration of this, the wife had waived her right to receive support from her husband. The court held that a contractual waiver regarding support is void and that it did not make a difference if the wife’s waiver was made freely or not.

From that time on it was case law, and the annotations stated, that all agreements about personal matters were void. They were not in accordance with the nature of marriage.

Hattenhauer says that one reason for this change in opinion about marital agreements and the mistrust against them might lie in the effort to create a uniform/homogeneous family and inheritance law. He argues that the authors of the BGB were proud that they had limited the former variety of 100 systems of marital property to only five. He therefore reaches the conclusion that it was only reasonable that nobody wanted to destroy this success and give the spouses their contractual freedom back.

The authors of the BGB were also convinced that they had created marriage as a “timeless and exhaustive institution,” and that they had created a truly moral model of marriage with equal rights for wife and husband by upholding the traditional roles. This middle class model of marriage was regarded as exclusive. As marriage and family were the cornerstones of the middle class, Hattenhauer believes that this was the reason why the middle class didn’t want to make any concessions for the benefit of the spouses’ individual liberty, and the demand for contractual freedom only led to mistrust.

However, in this new model of marriage the husband still had to be afraid of losing assets by leaving his wife. The new system was still able to stabilize a marriage because of the continued existence of a very traditional social order and the principle of marrying within one’s station.

Hattenhauer believes that this legislation would have been useless if the people’s understanding of marital obligations of spouses had not been generally shared. He also believes that the model was secured by society’s morality. He states that even socialists had the same opinion about sexuality, marriage, family etc. in those times. So he reaches the conclusion that the general moral understanding helped to make the courts find every agreement differing from the BGB void because of immorality.

According to Hattenhauer the acknowledgement of this model of marriage was also supported by society’s unbroken trust in their assets. It was e.g. not immoral if the fathers-in-law sat down and started calculating the amount of the assets while the spouses just enjoyed their love. But only after two decades, in the 1920s, the trust in the assets, and the assets themselves, were melted away by inflation, so marriage-stabilizing couldn’t be achieved by financial contributions anymore. Society was forced to look for new stabilizing techniques.

Hattenhauer states that from this time on a new “asset” for a wife to bring into the marriage was a solid vocational training, as a form of social security. People believed that this asset could not melt away even in times of inflation. The fact that both spouses were working turned out to be a stabilizing factor for marriage, especially regarding its psychological balance. Besides her dowry her vocational training now gave the wife stability even if she gave up her profession to become a housewife. However, even then, stability was still achieved by society’s constraints and traditional case law.

Hattenhauer then describes the current status quo:

- marriage has lost its protection by law

- middle-class morality has lost its general prestige

- the number of divorces and the number of children of divorce who are skeptical of marriage have increased

- the model of an “emancipatory marriage” has replaced the middle-class model of marriage

- the stabilizing legal techniques such as “Zugewinn- and Versorgungsausgleich” (equitable distribution including property and pensions) can be abolished by marital agreements

- the loss of faith and trust in marriage made the concubinage more attractive

- the loss of the husband’s responsibility for the wife’s social security (because of her ability to work) has increased the marriage-age of wives, reduced the number of children born into the marriage, and increased the number of disabled children.

According to Hattenhauer the traditional middle-class model of marriage has no binding character anymore and the “emancipatory model” of marriage is a fad without a function. He believes that this pluralism of models cannot be resolved by giving one of them priority, and that the role of the law is reduced to setting only the frameworks for what might be binding and what might not.

Today, there are various answers regarding the question of what is legally binding, or what is the nature of marriage and therefore is protected by the Code’s principle of morality (§ 138 BGB). Prof. Gernhuber, e.g., names various principles which he thinks are binding:

“[1] The principle to be free to enter a marriage, [2] that spouses make a contract by entering a marriage, [3] the principle of monogamy, [4] that marriage can only be between a woman and a man, [5] the spouses’ obligation to live in matrimony, [6]  that marriage can only be dissolved by death.”

Hattenhauer asks what kind of legal techniques we need in our changed society today, if we see those principles as binding? As the traditional pre-1900 marital agreement, varying the standard obligations of marriage, is back and practiced again, he believes that it can be used as a stabilizing legal technique. The determination of personal and financial matters in those agreements can help to give marriages a more binding character than the law itself does. Hattenhauer states that the creation of various types of such marital agreements has already begun and will continue. Those new marital agreements still find their limits of contractual freedom in illegality (§ 134 BGB) and morality (§ 138 BGB).

Looking at spouses’ considerations as they enter a marital agreement, you will find that hardly anybody has considered it as a stabilizing factor. You will also find that people haven’t paid much attention yet to agreeing on personal matters, nor to agreeing about certain personal sanctions, in a marital agreement, in contrast to financial matters and financial sanctions. According to Hattenhauer the demand for individualized agreements and regulations is especially high. He states that personal matters included in agreements can be: the decision to have children and their raising, the decision who works and who does the household work, the place of residence, the things you do in your leisure time, holidays, relationships with relatives and in-laws, religious decisions, decisions about the procedure to solve conflicts or problems, etc. As each of his listed personal matters can cause a conflict and might destroy a marriage if it cannot be solved, he argues, spouses should agree in a marital agreement about those personal matters and should therefore also agree about sanctions to avoid conflicts and the dissolution of the marriage.

As the regulations in the BGB regarding divorce, and high costs, do not deter spouses from the decision to get divorced, Hattenhauer thinks that it might aid the stabilization of marriages if spouses could agree to limit their right to get divorced. He states that any useful suggestions on this are still missing, and people miss the mark by only agreeing about financial sanctions. Prof. Langenfeld suggested having different systems regarding the financial consequences of ending a marriage, distinguishing between ending because of divorce and ending because of death.

Even the BGH (Supreme Court) had already to decide about the use of assets for the purpose of marriage-stabilizing. A marriage entered in 1976 in a mosque in Munich between Islamic spouses included an agreement about a payment in the amount of 100.000 DM in case of getting divorced. The BGH held that the agreement is valid under the freedom of contract. Thus, it was held that agreeing about financial sanctions in case of divorce is valid. It was also held that this was not a contract about the system of marital property, and therefore it did not have to be in one specific form (such as for example under § 1410 BGB).

But no courage to make such decisions on personal matters can be found yet.  Hattenhauer asks why we go about this complicated detour by using only financial sanctions to encourage the continued existence of marriage. Don’t we exclude from the opportunity of contractual stabilizing those spouses who don’t have considerable assets to lose? Why isn’t it possible to let all couples stabilize their marriages by using clear and formulated clauses? He hopes that the lawyers will improve upon this opportunity.

Then he comes back to his contested thesis about the possibility to waive the right to get divorced. First of all he states six theses:

1. Agreements regarding personal matters are valid and find their limits in the general limits of privatization in civil law.
2. A limitation or waiver of the right to get divorced is valid because it is not prohibited by law nor immoral or unconstitutional.
3. Agreements about arbitration and any other models for solving conflicts are valid and legal
4. Although entering or leaving a marriage has to comply with a certain form, agreements limiting the ability to get divorced do not.
5. An agreed limit on the ability to get divorced can be revoked by agreement at any time.
6. A court should determine the immorality of an objection regarding the waiver of the right to get divorced in a trial, in which the invalidity of the agreement has to be proved by the petitioner.

The train of thought is again, for example:

Wife and husband, both Catholics, want to get married and want their religion to become legally effective (in addition to the official governmental ceremony). Using Privatization in order to express their religious beliefs, the couple creates a marital agreement that they will not get divorced. In addition the agreement states that any litigation of marital issues will be decided by means of arbitration and the arbitrator shall be an ecclesiastical judge.

If the spouses then get into conflict there are two choices: Both agree to change the marital agreement, revoke their waiver and both can move the court for a conventional divorce. That means that nobody can jump out of the marriage hastily.  If the other spouse refuses to agree about the change of the marital agreement the spouse will then move the court to decide. But the Respondent can make the objection that the court has no jurisdiction because of the agreed clause regarding arbitration. If the respondent moves to the court of arbitration, he or she will be forced to find a mediated solution. If there is no arbitrated solution the arbitrator will dismiss the motion to get divorced because of the agreed waiver. The Petitioner can appeal by citing § 1041 Nr. 2 ZPO and proving the immorality of the Respondent’s objection regarding the waiver. Finally, the way out of a marriage should never be absolutely excluded as the last solution, but the way out should be restricted. This complies with the principle of tolerance and pluralism.

It is now necessary to show what sort of model of marriage will be more successful. In open concurrence to the already existing variety of dangerous and insecure models of concubinages, we will have a variety of secure marital agreements in which the demand for stability and the waiver of the right to get divorced will find their place. It will be personal self-fulfillment instead of being kept in leading strings by the government: In dubio pro libertate! [Meaning, in all cases that are in doubt, rule in favor of freedom. In English law, stated as “in statu dubio semper erit pro libertate iudicandum”. Bracton, f. 191 b]

Divorce/separation not affordable for Bay-area lawyers, other professionals, so here's what they do:

Bay area couples who separate or divorce are increasingly sharing a home for economic reasons,  Amy Graff  writes in SFGATE. The example she leads with includes a lawyer in private practice. For actual separation to be affordable, at least one parent would have to move so far away that caring for, and transporting, the children would be unworkable. And this arrangement is actually optimal for the children, when the parents can remain civil with each other, she says after looking at several couples who are doing this.

The Bay Area is so expensive divorced parents can't afford to live separately:

A perspective from Mommy Files' Amy Graff

SF Gate, May 8, 2018

via Family Law Prof Blog

Pros and cons of one-year vs. two-year separation period for contested divorce litigation -- a divorce lawyer reflects

At the end of 2017, couples began to be affected by Pennsylvania's the new divorce law, which cut the living-apart period before filing contested no-fault divorce litigation, without mutual consent and without all the financial and child-related issues worked out, from two years to one year. Carolyn R. Mirabile, a partner and family law group head at Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., looks back at what seemed to have worked better under the old law, and what improvements she hopes for from the new law. 

One Year Later On the One-Year Separation

By Carolyn R. Mirabile in The Intelligencer - Mar 15, 2018

Why's the military so toxic for marriage AND divorce? The best-expressed and newest insights.

Carl Forsling repeats several often-heard, and quite true, observations about how the military is bad for marriage, plus some insights that are original but intuitively very convincing once he points them out. Which explain why it's also so hard on divorce.

"Divorce — it’s no stranger to those in the military. At the same time, the military is a very tradition-minded institution, so divorce is often treated like the family secret no one talks about. ... some commanders have very black and white attitudes in regards to marriage. ... surprisingly prevalent in an institution where divorce is commonplace. The military attracts strong personalities, and they tend to either be very religious with very traditional views of morality or very not."

Very true. I'm more familiar with the strong personalities who are very non-traditional about marriage -- well, they may be traditional and sentimental about it in some ways, but in ways that get them married five times and divorced four times, if they're lucky. And hopefully with a divorce between each marriage. Or divorced early and married never again. Sometimes getting taken advantage of royally, as they see it, in their first divorce, and then becoming determined that next time, and every next time, they will be the ones in the relationship with the power, the knowledge, the leverage and the manipulation. Whether that's in a divorce or in devoutly unwed cohabitation. 

On the other hand, there are many who are honorable and generous to a fault. Or who want what's best for their kids even if it isn't best for themselves. 

Many, whether honorable or manipulative, are gung-ho and unashamed of whatever course they're pursuing, in divorce, adultery or whatever. If they're war veterans, they usually have a sense of entitlement, understandably. The military rightly tells them that they and their jobs are important, and that the civilian world should accommodate them. They may see divorce and other family breakups as just part of the petty civilian-life BS that the military requires them to take care of, but that could never be compared in importance to their mission or their careers.

And yet again, there's another side of this: Timid careerists who are always looking over their shoulders. Junior officers who are expert at creating paper trails to shift blame and responsibility to others, and who think that will work for them in family court.

I've only recently begun to see the very religious and neo-traditional officers and servicemembers the author talks about, but I know they have been out there for quite a while now.

He has a refreshing point of view on a practice that is widespread, widely advised, encouraged by regulations, but which also can make civilian courts get really mad at spouses and treat them like stalkers who are trying to destroy the careers they have benefited from:

"On top of that, some hurt soon-to-be former spouses have in the past called up commanding officers and sergeants major, and in today’s “pro-family” military, those leaders usually picked up the phone to an earful of often highly exaggerated drama. Sometimes those senior leaders rightfully take it with a grain of salt. Other times, service members get chewed out or worse based on the spouse’s account of events that may or may not have happened as described. ... Many units now have “human factors” or “commander’s safety” councils, wherein members’ personal lives are aired out in the name of “safety.” Guess who gets talked about in those? In today’s environment, where the phrase “perception is reality” is too often said without irony, too many service members end up with their reputations tarred." 

(That's not just "in the past", by the way.)

As for two well-known factors that weaken military families, he describes them freshly and eloquently:

"Service members often marry young. Part of that is the rapid maturation the military forces on people, part of it is undoubtedly bad decisions based on housing allowance rates, and part of it is ironically likely the military’s old-fashioned views on marriage. Whatever the reason, marrying young is not a good indicator of matrimonial success."

"Add in the deployments, long hours, etc., and things don’t bode well for military couples. There are some marriages that thrive despite the challenges — as those in the military are fond of saying, 'What doesn’t kill you makes you stronger.' For others, though, what doesn’t kill them severely damages their relationships."

Another factor Forsling doesn't mention: The continuing reluctance to seek mental health treatment for reputation and career reasons. That has been a huge problem in many of my cases.

He concludes: 

The military has made a big push to be more family friendly in recent years. ... As it tries to be better for traditional families, it needs to improve the culture for non-traditional ones, as well."

That's so true. Our society needs to understand that being pro-family means strengthening intact nuclear families, but also honoring all family bonds and strengthening what's left of "broken" families too. 

The Military’s Problem With Marriage

 

By CARL FORSLING on taskandpurpose.com --  April 5, 2016

 

See also: 

Married military: Soldiers often marry young, and for good reasons

 

 

 

NY's Unilateral No-Fault Law Increases Divorces 18%, Makes'em Nasty, Brutish & Long. Lawyers Mystified.

New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.

In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."

The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* .  "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.

"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."

"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."

Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.

"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."

Condensed from "With No-Fault Divorces, Separation Agreements Plummet" By John Caher, New York Law Journal, March 7, 2014. 

Read more: http://www.newyorklawjournal.com/id=1202645838937/With-No-Fault-Divorces%2C-Separation-Agreements-Plummet#ixzz2vJ4d6MkO

If you work with families or have one, learn about Discernment Counseling March 18!

I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty. 

March 18th Webinar -  Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!

Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.

 

Objectives

1. Identify the special challenges that mixed agenda couples face when they see helping professionals.
2. Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
3. Describe how clergy use their own version of discernment counseling.
4. Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.

Click Here to Register

Comments to Census Bureau on proposal to stop collecting marriage & divorce info

[Update: It's great to see my opinion confirmed, with much more understanding, context and background, by an eminent statistician and demographer, Justin Wolfers, in the New York Times! "Census Bureau’s Plan to Cut Marriage and Divorce Questions Has Academics Up in Arms" (12/31/14)]

Practicing what I preach, I have sent in my comments on the Census Bureau's proposal to stop collecting information on marriage and divorce. The deadline is tomorrow, Tuesday, Dec. 30. (In case you missed what this is about, see my original posting, "Census will stop studying marriage, divorce; Dec. 30 public comment deadline").

December 29, 2014

Jennifer Jessup, 
Departmental Paperwork Clearance Officer,
 Department of Commerce, 
1401 Constitution Ave., NW, Room 6616, 
Washington, D.C. 20230

 Re: Comment on Proposed Changes to American Community Survey

 Dear Ms. Jessup:

 Your notice in the Federal Register classified the ACS questions on marriage and divorce as low-cost, but “low value”. On the contrary, they are of very high value to our society, to the public, the press, students, researchers, legislators and parts of the executive branch.

 Social and public usefulness of these statistics

 I have been a family-law attorney for 19 years and for almost as long I have operated a divorce statistics web site. In its current form it is called the Divorce Statistics and Studies Blog, at http://familylaw.typepad.com/stats. From doing that work, I have been able to observe that the public, the media, students, academic researchers, and state and federal policymakers all have a widespread, lasting interest in marriage and divorce, and in current statistics on them of a kind which only the American Community Survey provides. Anyone writing an article, research paper, or presentation on marriage or divorce wants to use statistics in it. Any legislator proposing a bill related to either topic wants accurate, current statistics to frame his or her argument. Although I put a great many statistics and studies on the blog, I frequently get calls, e-mails and letters asking for more statistics.

The public rightly considers marriage and divorce to be extremely important subjects, and people overwhelmingly assume that the government keeps detailed, up-to-the-minute statistics on them, far more than is the case even now. People have been hearing about divorce statistics for many decades now, and most people I deal with simply could not comprehend that the government was no longer keeping them. If I told them that, they would keep looking, use outdated numbers, or just make something up that they thought was what they heard somewhere.

Governmental uses

The ACS-based statistics are also very useful to parts of the federal government. Two examples:

• The Department of Defense and the various branches of the military keep very detailed statistics on divorce and marital status, but those would be much less useful without your corresponding numbers on the general population for comparison purposes. The military has realized in recent years that it needs to take much better care of families, and statistics are essential for measuring progress.
• The Department of Health and Human Services provides many services to families that have experienced divorce or unwed childbearing, including many services related to child support, and specifically funds fatherhood, marriageability, marriage skills-building, and divorce-prevention programs as part of the Temporary Assistance to Needy Families (TANF) program.  The department and its grant recipients need statistics in order to understand the populations they work with and the need for particular programs.

 Why ACS statistics are crucial 

Most private and academic studies of marriage and divorce are based on information from the ACS and its predecessors. The Census Bureau has also produced very important studies of marriage and divorce based on the ACS and its predecessors, including generational-cohort studies and probability projections. These are where we get the kind of numbers that actually answer the questions people wonder about: What are our overall chances of divorcing, ever? How long do marriages last? What about second and third marriages? How many children grow up without one parent? What is the divorce rate for people of my age, educational level, etc.? And what can we do about it?

The other source of marriage and divorce statistics is the National Center for Health Statistics (NCHS), which collects annual totals of marriages and divorces reported from county courts to state vital statistics offices. But this information, by itself, is not very useful to governments or to the private sector. It yields such measures as “3.6 divorces per 1000 population per year”. I.e., 0.72% of the population gets divorced each year. That does not tell people anything that sounds relevant to their lives. Also, NCHS divorce numbers are much more useful when compared to a count of the married population, which comes from the Census. And they are incomplete: California and several other states are not included.

Conclusion

This proposed change was not widely publicized. A very broad cross-section of the general public, media, academia and policymakers are affected by it, and so the eventual disappointment from the elimination of these survey subjects will be much more widespread than the comments you receive will indicate.

 Sincerely,

 

 

John Crouch

Report of Vatican's "Synod of Bishops on the Family" Is Indeed Newsworthy

Last month when Pope Francis held a Synod of Bishops on family and sexual issues, there were news reports of a sudden liberalization of attitudes on divorce and sexual preference. Others such as Glenn Stanton, after reading the Synod's report, assured us that "it is unspectacular, affirming a thoroughly Catholic and biblically faithful sexual, marital and familial ethic." ("The Catholic Synod on Family’s Final Report – No Reason to Freak".)

I've read it, and I say it is news.

First, the liberal elements of the Church's position on family and sexual issues, though they may not be new, would still be news to many people who think they know what the Church says and does. The document emphasizes meeting people where they are, and describes the difficult and demoralized family situations that they are often in. And that homosexuals should be treated with equal dignity and non-discrimination. It is very specific and urgent in calling for acceptance and pastoral care specifically geared to cohabiting, separating, divorced and remarried people, and their children.

Second, the document indicates that there will be further and more specific action in line with its principles at the "Ordinary General Assembly" next October, and possibly before.

Third, non-Catholics like me will always be surprised, in ways that are both refreshing and unsettling, at how the Church approaches the world and its problems. This report gives a deeply loving and insightful assessment, from a very different perspective and background, on family problems and how to begin to heal them. It includes crucial concepts that I've never heard of, such as "affectivity". 

There is much fresh wisdom in the report, and much brokenness and suffering in the world's families, which all of our professions and policies have not come anywhere close to resolving. Here are excerpts I think are especially compelling and relevant, as a family-law attorney who is concerned with family breakdown individually and in society as a whole. I generally have left out parts that seem internal to the church's own doctrines and structure, as this blog is about families, not Christianity.

++++++++++++++++++

Within the family are joys and trials, deep love and relationships which, at times, can be wounded. The family is truly the “school of humanity”, which is much needed today.

 At the Extraordinary General Assembly of October, 2014, the Bishop of Rome called upon the Synod of Bishops to reflect upon the critical and invaluable reality of the family, a reflection which will then be pursued in greater depth at its Ordinary General Assembly scheduled to take place in October, 2015, as well as during the full year between the two synodal events. These proposed reflections, the fruit of the synodal work which took place in great freedom and with a spirit of reciprocal listening, are intended to raise questions and indicate points of view which will later be developed and clarified through reflection in the local Churches in the intervening year leading to the XIV Ordinary General Assembly of the Synod of Bishops, scheduled for October, 2015, to treat The Vocation and Mission of the Family in the Church and in the Contemporary World. These are not decisions taken nor are they easy subjects.

Faithful to Christ’s teaching, we look to the reality of the family today in all its complexity, with both its lights and shadows. Anthropological and cultural changes in our times influence all aspects of life and require an analytic and diversified approach. The positive aspects are first to be highlighted, namely, a greater freedom of expression and a better recognition of the rights of women and children, at least in some parts of the world. On the other hand, equal consideration needs to be given to the growing danger represented by a troubling individualism which deforms family bonds and ends up considering each component of the family as an isolated unit, leading, in some cases, to the idea that a person is formed according to one’s own desires, which are considered absolute.

There is also a general feeling of powerlessness in the face of socio-cultural realities which oftentimes end in crushing families. Such is the case in increasing instances of poverty and unemployment in the workplace, which at times is a real nightmare or in overwhelming financial difficulties, which discourage the young from marrying. Families often feel abandoned by the disinterest and lack of attention by institutions. The negative impact on the organization of society is clear, as seen in the demographic crisis, in the difficulty of raising children, in a hesitancy to welcome  new life and in considering the presence of older persons as a burden. All these can affect a person’s emotional balance, which can sometimes lead to violence. The State has the responsibility to pass laws and create work to ensure the future of young people and help them realize their plan of forming a family.

  Many children are born outside marriage, in great numbers in some countries, many of whom subsequently grow up with just one of their parents or in a blended or reconstituted family. Divorces are increasing, many times taking place solely because of economic reasons. Oftentimes, children are a source of contention between parents and become the real victims of family break-ups. Fathers who are often absent from their families, not simply for economic reasons, need to assume more clearly their responsibility for children and the family. The dignity of women still needs to be defended and promoted. In fact, in many places today, simply being a woman is a source of discrimination and the gift of motherhood is often penalized, rather than  esteemed. Not to be overlooked is the increasing violence against women, where they become victims, unfortunately, often within families and as a result of the serious and widespread practice genital mutilation in some cultures. The sexual exploitation of children is still another scandalous and perverse reality in present-day society. Societies characterized by violence due to war, terrorism or the presence of organized crime are witnessing the deterioration of the family, above all in big cities, where, in their peripheral areas, the so-called phenomenon of “street-children” is on the rise. Furthermore, migration is another sign of the times to be faced and understood in terms of its onerous consequences to family life.

 Faced with the afore-mentioned social situation, people in  many parts of the world are feeling a great need to take care of themselves, to know themselves better, to live in greater harmony with their feelings and sentiments and to seek to live their affectivity in the best manner possible. These proper aspirations can lead to a desire to put greater effort into building relationships of self-giving and creative reciprocity, which are empowering and supportive like those within a family. In this case, however, individualism and living only for one’s self is a real danger. The challenge for the Church is to assist couples in the maturation and development of their affectivity through fostering dialogue, virtue and trust in the merciful love of God. The full commitment required in marriage can be a strong antidote to the temptation of a selfish individualism.

  Cultural tendencies in today’s world seem to set no limits on a person’s affectivity in which every aspect needs to be explored, even those which are highly complex. Indeed, nowadays a person’s affectivity is very fragile; a narcissistic, unstable or changeable affectivity does not always allow a person to grow to maturity. Particularly worrisome is the spread of pornography and the commercialization of the body, fostered also by a misuse of the internet and reprehensible situations where people are forced into prostitution. In this context, couples are often uncertain, hesitant and struggling to find ways to grow. Many tend to remain in the early stages of their affective and sexual life. A crisis in a couple’s relationship destabilizes the family and may lead, through separation and divorce, to serious consequences for adults, children and society as a whole, weakening its individual and social bonds. The decline in population, due to a mentality against having children and promoted by the world politics of reproductive health, creates not only a situation in which the relationship between generations is no longer ensured but also the danger that, over time, this decline will lead to economic impoverishment and a loss of hope in the future.

 The great values of marriage and the Christian family correspond to the search that characterizes human existence, even in these times of individualism and hedonism. People need to be accepted in the concrete circumstances of life. We need to know how to support them in their searching and to encourage them in their hunger for God and their wish to feel fully part of the Church, also including those who have experienced failure or find themselves in a variety of situations. The Christian message always contains in itself the reality and the dynamic of mercy and truth which meet in Christ.

 Jesus looked upon the women and the men he met with love and tenderness, accompanying their steps with patience and mercy, in proclaiming the demands of the Kingdom of God.

Jesus himself, referring to the original plan of the human couple, reaffirms the indissoluble union between a man and a woman and says to the Pharisees that “for your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so”(Mt 19: 8). The indissolubility of marriage (“what therefore God has joined together, let no man put asunder” Mt 19:6), is not to be understood as a “yoke” imposed on persons but as a “gift” to a husband and wife united in marriage. In fact, Jesus was born in a family; he began to work his signs at the wedding of Cana; and announced the meaning of marriage as the fullness of revelation which restores the original divine plan (Mt 19:3). At the same time, however, he put what he taught into practice and manifested the true meaning of mercy, clearly illustrated in his meeting with the Samaritan woman (Jn 4:1-30) and with the adulteress (Jn 8:1-11). By looking at the sinner with love, Jesus leads the person to repentance and conversion (“Go and sin no more”), which is the basis for forgiveness.

In accepting each other and with Christ’s grace, the engaged couple promises a total self-giving, faithfulness and openness to new life. The married couple recognizes these elements as constitutive in marriage, gifts offered to them by God, which they take seriously in their mutual commitment, in God’s name and in the presence of the Church. Faith facilitates the possibility of assuming the benefits of marriage as commitments which are sustainable through the help of the grace of the Sacrament, offering them assistance to live their faithfulness, mutual complementarity and openness to new life. 

      The Second Vatican Council wished to express appreciation for natural marriage and the valid elements present in other religions (cf. Nostra Aetate, 2) and cultures, despite their limitations and shortcomings (cf. Redemptoris Missio, 55). The presence of the seeds of the Word in these cultures (cf. Ad Gentes, 11) could even be applied, in some ways,  to marriage and the family in so many societies and non-Christian peoples. Valid elements, therefore, exist in some forms outside of Christian marriage  —  based on a stable and true relationship of a man and a woman. With an eye to the popular wisdom of different peoples and cultures, the Church also recognizes this type of family as the basic, necessary and fruitful unit for humanity’s life together.

The Church is conscious of the weakness of many of her children who are struggling in their journey of faith. “Consequently, without detracting from the evangelical ideal, they need to accompany with mercy and patience the eventual stages of personal growth as these progressively occur. [...] A small step in the midst of great human limitations can be more pleasing to God than a life which outwardly appears in order and passes the day without confronting great difficulties. Everyone needs to be touched by the comfort and attraction of God’s saving love, which is mysteriously at work in each person, above and beyond their faults and failings”.

 In considering a pastoral approach towards people who have contracted a civil marriage, who are divorced and remarried or simply living together, the Church has the responsibility of helping them understand the divine pedagogy of grace in their lives and offering them assistance so they can reach the fullness of the God’s plan for them.The Church turns with love to those who participate in her life in an incomplete manner, recognizing that the grace of God works also in their lives by giving them the courage to do good, to care for one another in love and to be of service to the community in which they live and work.

The Church looks with concern at the distrust of many young people in relation to a commitment in marriage and suffers at the haste with which many of the faithful decide to put an end to the obligation they  assumed and to take on another. These lay people, who are members of the Church, need pastoral attention which is merciful and encouraging, so they might adequately determine their situation. Young people, who are baptized, should be encouraged to understand that the Sacrament of Marriage can enrich their prospects of love and they can be sustained by the grace of Christ in the Sacrament and by the possibility of participating fully in the life of the Church.

 In this regard, a new aspect of family ministry is requiring attention today  —  the reality of civil marriages between a man and woman, traditional marriages and, taking into consideration the differences involved, even cohabitation. When a union reaches a particular stability, legally recognized, characterized by deep affection and responsibility for  children and showing an ability to overcome trials, these unions can offer occasions for guidance with an eye towards the eventual celebration of the Sacrament of Marriage. Oftentimes, a couple lives together without the possibility of a future marriage and without any intention of a legally binding relationship.

In accordance with Christ’s mercy, the Church must accompany with attention and care the weakest of her children, who show signs of a wounded and lost love, by restoring in them hope and confidence, like the beacon of a lighthouse in a port or a torch carried among the people to enlighten those who have lost their way or who are in the midst of a storm. Conscious that the most merciful thing is to tell the truth in love, we go beyond compassion. Merciful love, as it attracts and unites, transforms and elevates. It is an invitation to conversion. We understand the Lord’s attitude in the same way; he does not condemn the adulterous woman, but asks her to sin no more.

This work calls for  not stopping at proclaiming a message which is perceived to be merely theoretical, with no connection to people’s real problems.Proclamation needs to create an experience where the Gospel of the Family responds to the deepest expectations of a person: a response to each’s dignity and complete fulfillment in reciprocity, communion and fruitfulness. This does not consist in merely presenting a set of rules but in espousing values, which respond to [people's] needs.

 The synod fathers repeatedly called for a thorough renewal of the Church’s pastoral practice in light of the Gospel of the Family and replacing its current emphasis on individuals. For this reason, the synod fathers repeatedly insisted on renewal in the training of priests and other pastoral workers with a greater involvement of families. They equally highlighted the fact that evangelization needs to clearly denounce cultural, social, political and economic factors, such as the excessive importance given to market logic which  prevents authentic family life and leads to discrimination, poverty, exclusion, and violence. Consequently, dialogue and cooperation need to be developed with the social entities and encouragement given to Christian lay people who are involved in the cultural and socio-political fields.

Preparation for Marriage

The complex social reality and the changes affecting the family today require a greater effort on the part of the whole Christian community in preparing those who are about to be married. The importance of the virtues needs to be included, among these chastity which is invaluable in the genuine growth of love between persons. In this regard, the synod fathers jointly insisted on the need to involve more extensively the entire community by favouring the witness of families themselves and including preparation for marriage in the course of Christian Initiation as well as emphasizing the connection between marriage and the other sacraments. Likewise, they felt that specific programmes were needed in preparing couples for marriage, programmes which create a true experience of participation in ecclesial life and thoroughly treat the various aspects of family life.

 The initial years of marriage are a vital and sensitive period during which couples become more aware of the challenges and meaning of married life.  In this regard, experienced couples are of great importance  to be of service to younger couples.

Pastoral Care for Couples Civilly Married or Living Together

 While continuing to proclaim and foster Christian marriage, the Synod also encourages pastoral discernment of the situations of a great many who no longer live this reality. Entering into pastoral dialogue with these persons is needed to distinguish elements in their lives which can lead to a greater openness to the Gospel of Marriage in its fullness. Pastors ought to identify elements which can foster evangelization and human and spiritual growth. A new element in today’s pastoral activity is a sensitivity to the positive aspects of civilly celebrated marriages and, with obvious differences, cohabitation. While clearly presenting the Christian message, the Church also needs to indicate the constructive elements in these situations which do not yet or no longer correspond to it.

    The synod fathers also noted in many countries an “an increasing number of people live together ad experimentum, in unions which have not been religiously or civilly recognized” (Instrumentum Laboris, 81). In some countries, this occurs especially in traditional marriages which are arranged between families and often celebrated in different stages. Other countries are witnessing a continual increase in the number of those who, after having lived together for a long period, request the celebration of marriage in Church. Simply to live together is often a choice based on a general attitude opposed to anything institutional or definitive; it can also be done while awaiting more security in life (a steady job and income). Finally, in some countries de factomarriages are very numerous, not because of a rejection of Christian values concerning the family and matrimony but primarily because celebrating a marriage is too expensive. As a result, material poverty leads people into de facto unions.

     All these situations require a constructive response, seeking to transform them into opportunities which can lead to an actual marriage and a family in conformity with  the Gospel. These couples need to be provided for and guided patiently and discreetly. With this in mind, the witness of authentic Christian families is particularly appealing and important as agents in the evangelization of the family.

Caring for Broken families (Persons who are Separated, Divorced, Divorced and Remarried and Single-Parent Families)

 Married couples with problems in their relationship should be able to count on the assistance and guidance of the Church. The pastoral work of charity and mercy seeks to help persons recover and restore relationships. Experience shows that with proper assistance and acts of reconciliation, though grace, a great percentage of troubled marriages find a solution in a satisfying manner. To know how to forgive and to feel forgiven is a basic experience in family life. Forgiveness between husband and wife permits a couple to  experience a never-ending love which does not pass away.

The necessity for courageous pastoral choices was particularly evident at the Synod. Strongly reconfirming their faithfulness to the Gospel of the Family and acknowledging that separation and divorce are always wounds which causes deep suffering to the married couple and to their children, the synod fathers felt the urgent need to embark on a new pastoral course based on the present reality of weaknesses within the family, knowing oftentimes that couples are more “enduring” situations of suffering than freely choosing them. These situations vary because of personal, cultural and socio-economic factors. Therefore, solutions need to be considered in a variety of ways.

  A special discernment is indispensable for pastorally guiding persons who are separated, divorced or abandoned. Respect needs to be primarily given to the suffering of those who have unjustly endured separation, divorce or abandonment, or those who have been subjected to the maltreatment of a husband or a wife, which interrupts their life together. To forgive such an injustice is not easy, but grace makes this journey possible. Pastoral activity, then, needs to be geared towards reconciliation or mediation of differences, which might even take place in specialized “listening centres” established in dioceses. At the same time, the synod fathers emphasized the necessity of addressing, in a faithful and constructive fashion, the consequences of separation or divorce on children, in every case the innocent victims of the situation. Children must not become an “object” of contention. Instead, every suitable means ought to be sought to ensure that they can overcome the trauma of a family break-up and grow as serenely as possible. In each case, the Church is always to point out the injustice which very often is associated with divorce. Special attention is to be given in the guidance of single-parent families. Women in this situation ought to receive special assistance so they can bear the responsibility of providing a home and raising their children.

Annulments

 A great number of synod fathers emphasized the need to make the procedure in cases of nullity more accessible and less time-consuming. They proposed, among others, the dispensation of the requirement of second instance for confirming sentences; the possibility of establishing an administrative means under the jurisdiction of the diocesan bishop; and a simple process to be used in cases where nullity is clearly evident. Some synod fathers, however, were opposed to this proposal, because they felt that it would not guarantee a reliable judgment. In all these cases, the synod fathers emphasized the primary character of ascertaining the truth about the validity of the marriage bond. Among other proposals, the role which faith plays in persons who marry could possibly be examined in ascertaining the validity of the Sacrament of Marriage, all the while maintaining that the marriage of two baptized Christians is always a sacrament. In streamlining the procedure of marriage cases, many synod fathers requested the preparation of a sufficient number of persons  —  clerics and lay people  —  entirely dedicated to this work.

 After Divorce

 Divorced people who have not remarried, who oftentimes bear witness to their promise of faithfulness in marriage, ought to be encouraged to find in the Eucharist the nourishment they need to sustain them in their present state of life. The local community and pastors ought to accompany these people with solicitude, particularly when children are involved or when in serious financial difficulty.

Those who are divorced and remarried require careful discernment and an accompaniment of great respect. Language or behavior which might make them feel an object of discrimination should be avoided, all the while encouraging them to participate in the life of the community. The Christian community’s care of such persons is not to be considered a weakening of its faith and testimony to the indissolubility of marriage, but, precisely in this way, the community is seen to express its charity.

The synod father also considered the possibility of giving the divorced and remarried  access to the Sacraments of Penance and the Eucharist. Some synod fathers insisted on maintaining the present regulations, because of the constitutive relationship between participation in the Eucharist and communion with the Church as well as the teaching on the indissoluble character of marriage. Others expressed a more individualized  approach, permitting access in certain situations and with certain well-defined conditions, primarily in irreversible situations and those involving moral obligations towards children who would have to endure unjust suffering. Access to the sacraments might take place if preceded by a penitential practice, determined by the diocesan bishop. The subject needs to be thoroughly examined, bearing in mind the distinction between an objective sinful situation and extenuating circumstances, given that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors”.

Persons with Homosexual Tendencies

 Some families have members who have a homosexual tendency. In this regard, the synod fathers asked themselves what pastoral attention might be appropriate for them in accordance with the Church’s teaching: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family.”Nevertheless, men and women with a homosexual tendency ought to be received with respect and sensitivity. “Every sign of unjust discrimination in their regard should be avoided” (Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 4).

Exerting pressure in this regard on the Pastors of the Church is totally unacceptable: this is equally so for international organizations who link their financial assistance to poorer countries with the introduction of laws which establish “marriage” between persons of the same sex.

Having and Raising Children

Today, the diffusion of a mentality which reduces the generation of human life to accommodate an individual’s or couple’s plans is easily observable. Sometimes, economic factors are burdensome, contributing to a sharp drop in the birthrate which weakens the social fabric, thus compromising relations between generations and rendering a future outlook uncertain. Openness to life is an intrinsic requirement of married love. In this regard, the Church supports families who accept, raise and affectionately embrace children with various disabilities.

Pastoral work in this area needs to start with listening to people and acknowledging the beauty and truth of an unconditional openness to life, which is needed, if human life is to be lived fully. This serves as the basis for an appropriate teaching regarding the natural methods for responsible procreation, which allow a couple to live, in a harmonious and conscious manner, the loving communication between husband and wife in all its aspects, along with their responsibility at procreating life. In this regard, we should return to the message of the Encyclical Humanae Vitae of Blessed Pope Paul VI, which highlights the need to respect the dignity of the person in morally assessing methods in regulating births. The adoption of children, orphans and the abandoned and accepting them as one’s own is a specific form of the family apostolate (cf. Apostolicam Actuositatem, III, 11), and oftentimes called for and encouraged by the Magisterium (cf. Familiaris Consortio, III, II; Evangelium Vitae, IV, 93). The choice of adoption or foster parenting expresses a particular fruitfulness of married life, not simply in the case of sterility. Such a choice is a powerful sign of family love, an occasion to witness to one’s faith and to restore the dignity of a son or daughter to a person who has been deprived of this dignity.

One of the fundamental challenges facing families today is undoubtedly that of raising children, made all the more difficult and complex by today’s cultural reality. The Church can assume a valuable role in supporting families, starting with Christian Initiation, by being welcoming communities. More than ever, these communities today are to offer support to parents, in complex situations and everyday life, in their work of raising their children.

How Marriage Matures and Fulfills Us

Affectivity needs assistance, also in marriage, as a path to maturity in the ever-deepening  acceptance of the other and an ever-fuller gift of self. This necessitates offering programmes of formation which nourish married life and the importance of the laity providing an accompaniment, which consists in a life of witness. Undoubtedly, the example of a faithful and deep love is of great assistance; a love shown in tenderness and respect; a love which is capable of growing over time; and a love which, in the very act of opening itself to the generation of life, creates a transcendent mystical experience.

"Relatio Synodi" of the III Extraordinary General Assembly of the Synod of Bishops: “Pastoral Challenges to the Family in the Context of Evangelization” (5-19 October 2014), 18.10.2014

Easy vs. hard divorce states story: So stupidly wrong in so many ways! Here's what really matters.

Every so often one of my colleagues re-posts "The 5 Best And Worst States For Getting A Divorce"  by Brittany Wong in The Huffington Post; based on, and referencing, the full charts titled "Compare Divorce and Family Laws" at findthebest.com. Lawyers' empty blogging for the sake of visibility and perceived expertise helps make this purported advice an enduring part of the conventional "wisdom" that well-meaning friends and those in the "helping professions" uncritically repeat to those beginning the divorce process.

The chart uses filing fees to gauge the cost of divorce. But filing fees range from the tens to the low hundreds of dollars, while the actual cost of divorce is somewhere in the five figures for most people, four figures for those with simple and amicable cases, and six figures for really hellish cases, which alas are not uncommon.

Then the chart takes the legal waiting periods, most of which are separation periods before a divorce is filed, and adds them to other procedurally required periods to get something called "processing time". Playing right into people's fantasy that a divorce is something that one simply registers with some kind of bureaucratic office which then takes care of "processing" it. That's one of the reasons people jump into divorce just as ignorantly and optimistically as they jump into marriage.

Actually, in a divorce, people have to either work out all the financial and child-related details of their separation, or have a court decide them in a trial -- and the litigation process that leads up to that can take from one to two years. Negotiation, on the other hand, can happen during physical separation, or ideally, before it. The faster you can go to court and start a case without having negotiated a complete agreement, the uglier and more expensive it can get, and the longer it might ultimately take. So what really matters is not what state you live in, but how simple your personal and economic lives are and whether the two spouses can work out a practical agreement on everything.

People facing divorce are so starved for useful information that they actually take such articles seriously. So this kind of throwaway journalism can do real damage. 

 

Friends come to you with marriage problems? Learn how to help and how not to.

How to Help Your Friend’s Marriage

March 11, 2014 - By Lori Lowe

 

(about the Marital First Responders Course and free webinars)

 

Additional info: Minnesota Public Radio 2/19/14, "Creating a network of 'Marital First Responders"