GodSpy: Bai, I want to be clear about what no-fault divorce is: One spouse can unilaterally divorce the other for no reason. How does no-fault affect society's view of marriage?

Bai Macfarlane: No-fault divorce makes people think that a marriage just "breaks." It makes people think they have no responsibility for repairing or working on their marriage. It's the idea that if you decide that your marriage isn't working, or if it's not giving you the satisfaction you expected, it's the normal thing—it's almost the brave or heroic thing—to move along. You can just try again with somebody else.

Even the term "no-fault" says no one is responsible...

Yes. A good example was the literature from our diocese's divorce ministry. It talked about divorce as if it were like a car accident—two drivers in a car accident, both kind of dazed, they get out of the cars, the police are there, and they don't really know what's going on. This infuriated me because it totally eliminates any culpability.

Before no-fault, divorce was a way to protect someone who was in a truly abusive situation. In those situations someone was at fault. But thanks to no-fault, there is no longer any sense of responsibility for a marriage, or any sense of the indissolubility of marriage at all.

With no-fault, there’s something wrong with you if you don’t accept a divorce. Catholic families are being crucified…

No-fault divorce laws spread in the early seventies when a national group that was trying to get uniform divorce laws in all the states wanted to provide a way for a judge to grant an amicable divorce when both parties wanted to end the marriage. With fault divorce, one person is guilty of something, and that person loses out in the settlement. What happened was that when the American Bar Association's Council of the Family Law Section reviewed the suggested changes in the law, they also added the requirement that if a couple lived apart for 180 days the judge would automatically grant the divorce. Up until then judges had the discretion to keep a couple together when there was really no fault. What ended up happening was the absolute opposite. Now when one person wants out there is a bias against saving the marriage, a bias against the other person who wants to keep it together.

Can you be more specific about how no-fault makes divorce more likely?

In the old days when you went to an attorney for a divorce, that attorney knew he was going to have to prove some fault before he would accept you as a client. I think one of the damaging aspects is that there is a whole industry making lots of money on no-fault divorce. When one unhappy spouse goes to an attorney thinking "I might want a divorce," the attorney sees the unhappy spouse as next month's cash flow.

Also, no-fault puts a couple into war mode. Two people who are having serious marital problems go talk to attorneys, and the attorneys—unless they're exceptional—are bracing themselves for a battle. And the battle is going to be about money and kids.

For example, in my case I sought out lots of advice about how to repair a marriage that's in terrible shape. One of the repeated themes is—you make yourself very vulnerable. You accept responsibility for your personality quirks that have annoyed your spouse, and you apologize. Now, if I send one of these apology letters, and I list the things about me that I know irk my husband, and I say—I'm really sorry that I'm this way and I really believe we can work on this—that letter can show up in court and be used against me to demonstrate how horrible I am. You step into a war zone instead of a healing zone; you step into a trap.

I know most divorces are wanted by only one spouse—I think the statistic is 80%—but what about Catholic marriages where both parties want a divorce?

It depends what you mean by Catholic. The Church teaches that Christ established that marriage is for life. God created man and woman to be together, and no one can tear apart what God has joined. You can't get remarried. The apostles said, oh my goodness, if that's what marriage means then it's better not to marry at all. But Jesus meant what he said. If a Catholic is committed to following Christ and believes that Christ instituted the Roman Catholic Church to speak on God's behalf, then for those Catholics—even if you don't feel like being together—you have an obligation to God and to each other to work it out.

Studies show that marriages can be saved if the spouses commit to staying together. Of course, it's always easier to blame the other person and run away. But when you're unhappy with something in your marriage, it's usually partly your own fault—you can't blame the other person entirely. Everybody has emotional baggage, but when you're forced to have a relationship with one person for life, if you force yourself to be committed to the indissolubility of marriage, you will mature. So for a serious Catholic, just because you both want a divorce, that's still not a reason to get a divorce. You're morally obligated to go work it out.

What about the argument that putting fault-finding back into divorce will harm those who might benefit from easy divorce, like abused spouses, or children who'd be caught in the litigation and conflict of divorce proceedings?

If your spouse is a psychopath, or literally abusing your children—nobody in the Church is going to object if you get out of there.

I've devoted most of my energy to thinking about this from a Catholic perspective, so I'm hesitant to propose what to do with the average marriage. Divorce is permanent separation, and with a Catholic marriage—according to Christ's teachings and the code of canon law—we aren't supposed to have permanent separation from our spouses. If we have marital problems, you are obligated to work on reconciling the marriage. So for a Catholic, stepping into divorce court, where you decide about splitting the property, and permanent custody and visitation about the kids, that's not even necessary. What Catholics should be doing is reconciling, period.

What about extreme cases, where a spouse needs to get away from an abuser or criminal, which would make the abuser the abandoned spouse?

If there is abuse, according to Church law, you're allowed to separate on your own authority. You don't need the bishop's authorization if there's an emergency. If your spouse is a psychopath, or literally abusing your children, or doing something terribly dangerous—nobody in the Church is going to object if you get out of there.

Adultery and physical abuse are both grounds for temporary or permanent separation according to the Church, and they're grounds for divorce by the state. In these cases the victim isn't choosing to abandon—it's the abuser who's at fault. The Church system and the civil system agree in those cases. In the Church system you are still bound to work towards reconciling. But you can have permission to permanently be separated, depending on the circumstances. Canon law #1153 describes an authorization from your local ordinary to be separated.

But from what I'm reading, even if my husband is a criminal, he's still my husband. Marriage can be a cross. You can have a husband or a wife who is a disaster. And you promised to be with them and that's how God set it up. I keep thinking of the analogy of God with Israel in the Old Testament. Sometimes Israel was faithful to God and sometimes it wasn't, but God always hung in there. So if marriage is a model to the world of God's faithfulness to his people, then the spouse who has the trouble can, with God's grace, hang in there.

What do you say to someone who asks you: Why do you want to stay married to someone who's decided he doesn't want to be married to you? How do you make a marriage work under those conditions?

When my situation first started to explode, I was even telling myself, well who wants to stay married to somebody who is this horrible? Then I started to see that it's not an option. I am married. It's almost like: If your mother is nasty to you, sure, you wish your mother was different, but she's still your mother. You can't change that—it's impossible. And what I've been reading by a Roman Rota judge, Monsignor Cormac Burke, talks about the good of the spouses as one of the ends of marriage. You can still have a good even if it's painful. It's about the meaning of suffering. It's about learning to join your suffering with Christ's suffering. I certainly haven't got that all figured out. But there's not an option—to not be married. You are married.

And the other concept is: What about his soul? A person can always turn around. Let's just say that a spouse is doing a terrible thing when they abandon a marriage. They're committing a grave, manifest sin. Why they're committing it—what's going on in their heart and soul—I can't know for certain. But it looks pretty bad. If my concern is for my spouse's soul, the idea of jumping ship is not an option. We're talking about somebody's soul here. Who knows what can happen in his heart and soul? So we're talking about eternity, not just what's happening in the here and now. I mean, I'm hanging in here until death do us part.

During the past year you've spoken to a lot of abandoned spouses, men and women. Is there a difference in the way divorce affects the sexes?

There are three men I personally know who have been abandoned by their wives. The psychological and emotional impact was so serious that they couldn't concentrate normally in their professional jobs. Their whole being was crushed. Here you are, you have a wife and children, and you're a breadwinner—whether your wife works outside the home or not—and that's all ripped out from under you. And what they usually do is give the kids to the mom automatically. So these guys lost their kids. One man talked about it as a crucifixion. Another called it an imprisonment—being in an invisible prison. Another said 'we're in exile from our children, and we're watching our children's upbringing being all screwed up.' For the past thirty years women who've lost that loving feeling have been able to kick dedicated, loyal husbands out of their own homes, sue them for child support, and then go and get new boyfriends, and then have the new boyfriend sleeping in their husband's bed. It's pretty disgusting.

Studies show that marriages can be saved if the spouses commit to staying together.

As for the women—it's unimaginable sadness. I know the physiological reaction that I had, and I'm familiar with another woman who described her sorrow—I think of the scenes from Schindler's List, when the children are being separated from the parents, and the women just fall to their knees and they can't hold themselves up, because the emotional pain is just... those kinds of scenes I'm certain are what happens in abandoned homes, with the remaining spouse. If you believe in the permanence of marriage, you have nowhere to go. You're trapped in this hell... you're not single, you don't have your spouse, you don't have an intact family for your children. And there's nothing you can do about it. The court system tells you there's something wrong with you because you're not accepting a divorce.

As a child of divorce myself, I remember reading, years ago, The Unexpected Legacy of Divorce by Dr. Judith Wallerstein. She reported on the first longitudinal study of the effects of divorce on children, which show up mostly when they reach adulthood. Can you talk about the children?

The most sad and indignant feelings I have are about the children... I think my husband and I are probably pretty average; we're nothing spectacular. I would guess that we've had an average marriage. My kids' way of learning about relating, about love, about forgiveness, about conversation, about manners, about doing chores, about everything, God's plan for how you learn these things, is in the family. That's been stolen from them. There's such a big difference between having two adults in a home with kids buzzing around, and having one. What are they going to think about marriage? What are they going to think about Catholicism? They know what was going on in our marriage. They've witnessed it.

Right now my kids have been taken from me, because I didn't go along with the government psychologist about what was in the best interests of my children's education (I was home schooling). Early on my attorneys didn't even advise me that I had the option of asking for full custody, so I signed papers that I never had to sign, and then got myself backed up into a corner. So it's a complicated mess. But I don't even have my kids anymore. What is my three year-old, what is my six year-old going to think of the judicial system? They know the judicial system stole mommy from them. What is that going to do to them? And I hear too that even adult children are devastated. Some of the emails that I've seen...

Yes, that's what surprises people, when they read literature on the effects of divorce. They assume that if the child's young, that's the only time it really affects them. But that's not true.

You mentioned the Judith Wallerstein book. There's another book, by Elizabeth Marquardt—she's from the Chicago Divinity School—that's coming out. She talks about the hidden life of a divorced child, how the kids are in exile. And it affects their moral development because having two homes—it's just not natural. She talks about how the kids are in exile from their missing parents no matter where they are. And they don't want that.

Let's get back to Church law. What about cases in a Catholic marriage where one of the spouses believes the marriage is invalid?

According to the Church's code of canon law, all marriages are assumed valid until proven otherwise. That's canon #1060. You can't assume that it is invalid and get a civil divorce. And the recent Vatican document, Dignitas Connubii, cautions against people presuming their marriages are invalid.

Unfortunately, right now in the United States, it's the exact opposite. The unwritten policy is that most tribunals will not accept a petition for annulment—they won't investigate the validity of a marriage—until a civil divorce is finished. That's an unwritten policy that is nowhere in canon law. Basically, they've made it up. There is no approved law for this policy which has been approved by Rome.

Civil divorce is setting oneself up for permanent separation, which is never acceptable according to canon law, except in cases of adultery, or if you have special permission from the bishop, and then only when there is serious, grave fault. For anything but an emergency (in which case you can temporarily separate on your own), if you think you have valid grounds for a separation, or if you believe that your marriage is invalid, according to canon law, you go to the Church, not the civil courts.

So you're saying that diocesan marriage tribunals in this country are implicitly encouraging people to divorce?

Oh yes. I know because I've actually tried it. I asked my diocese to do an investigation of nullity so that they would conclude that we have a valid marriage, so that my husband would know he doesn't have to divorce, if his reason for doing it is because we have an invalid marriage. That's how I know.

Another example—a friend of mine attended a six or eight week local seminar in our Cleveland diocese. He was the only defendant; everyone else attending were plaintiffs who wanted to divorce, and none of them had reasons of abuse or addiction against their spouse. These were people in the process of divorcing, and they were supporting each other, talking about how their marriages were dead, and how they were dumping their husbands. And in this guy's parish he also attended a one evening seminar; the guest speaker was a woman who was a professed Catholic, who is a divorce judge, who was teaching the attendees how to get a divorce. So...

Do you think these people were selfishly looking to abandon their spouses...?

The beautiful stuff is the goal, but maybe we need a little more realism about what average people are experiencing in marriage.

I'm actually feeling more sympathetic to these people because they talk to their priest about how unhappy they are, and then the priest says "let me hear more about your story," and then he hears how they only dated for six months before getting married, and the priest thinks, hmmm, you're really unhappy, you only dated for six months, maybe you don't have a valid marriage. This reminds me a lot of mercy killing and abortion, where people who are very unhappy, scared, and despairing are given the easy way out. Here, they are told by their church ministers: "Oh, I know the solution to your situation, your marriage is dead." And that's different than "I'm a selfish jerk and I want to abandon you." It's more like "I'm really hurting and I go to my church for help and this is what they tell me."

In my Yahoo discussion group there are people who are infuriated because of the information they and their spouse have gotten about how they should get a divorce. These are people who have been abandoned, and their spouses were given misinformation, with divorce being condoned by the Church. That then leads to the idea that all divorces should get annulments, which is something Dignitatis Connubii warns against.

You've talked a lot about how when practicing Catholics marry in the Church, they're agreeing to abide by Church law regarding marriage, and civil courts are no place for a Catholic couple. Can you explain that?

A law professor who's submitting a memorandum in support of my legal argument is asking the civil court in Ohio to transfer jurisdiction of the whole matter to the ecclesiastical authorities. That's based on the concept that whenever you marry as a Catholic you are agreeing to follow what the civil courts call "a separate or foreign law"—which in my case is the Roman Catholic code of Canon law governing marriage. There's a whole section of canon law that deals with this.

In making this argument this law professor is citing case law from various states where parties have agreed to a third party arbitrator. People do that all the time with the American Arbitration Association. What my civil attorney and that law professor are arguing is that the civil court shouldn't be able to touch our marriage until we've gone through these procedures defined by canon law.

This shouldn't pose any short-term problems for couples that are already separated. For example in Ohio there are laws that say spouses are obligated to support each other financially for the care and maintenance of the children and the household. Let's say I was a stay-at-home mom, and my husband was abusive, or he abandoned me. I could borrow money to pay for our necessities, and go to a civil court to ask my husband to pay to reimburse those expenses. You don't need a civil divorce to solve that problem at all.

The other concept that this law professor proposed is a pre-nuptial agreement for separation. If someone is going to jump ship, if someone wants to abandon their spouse—there's no way you can coerce them to stay—the parties can spell out a separation agreement before they get married, but it would be based on Catholic principles. So if you're the wife and you want to get out, well, if you leave, you can never go the civil court to have your children forcibly removed from an innocent husband. You'd be the one who'd have to pay him child support so that he could hire some help for the kids.

There's also a concept in canon law that if somebody wants to jump ship—and there is no abuse or adultery—that's called malicious abandonment, and the reason I bring it up is because from a Church perspective, children are supposed to be raised in a Catholic household. If an investigation determines that my husband doesn't have a lawful reason to leave me, and what he is doing is malicious abandonment, the Church could decide that the children need to be with the person who is sticking with their Catholic vows, and then we've just eliminated the very expensive custody battle that goes on in civil court.

Your organization mentions setting up these ecclesiastical courts. Are there other things you want the bishops to do?

Well, my understanding is that lay people can't exactly tell Bishops what to do. I see us more as a voice that needs to be heard, that Catholic families are being crucified by a civil divorce system that is a gross abomination... The on-line petition to the bishops—www.defendusfromdivorce.com—does reference the concept of a pre-nuptial agreement. The petition links to a four-page opinion from a canon lawyer who is a chancellor in a Midwestern diocese, saying that we do have a pre-nuptial agreement to be obligated to follow the code of canon law. But how exactly the Church would do that...

You're leaving that up to them....

Almost—I certainly see that tribunals are capable of doing investigations, they're capable of having witnesses, they're capable of making determinations. They do that all the time, so this wouldn't be something new.

So in a Church system a spouse or a couple who want to separate would have to petition their bishop to gain that permission?

Yes, and in my diocese, the parish where my kids go to mass when they're with daddy, that pastor told me that he had a form for separation in his files. He said he never uses it. But he has the form. So somebody set up the process, but no one ever follows through with it.

So it's a system that is somewhat in place but not used.

I think so.

You and your husband are well known in faithful Catholic circles for your books, talks, and ministry to lay Catholics, devotion to the Blessed Mother, and fidelity to the Church's teaching. I'm sure there are more than a few Catholic couples who wonder that if the two of you can't make it, who can?

Just because Bud and I knew how to get out books and tapes in a really efficient way, and he had a lot of marketing experience, and knew how to do mailings, had nothing to do with what our personal life was like.

I’m like one of those women whose husband is missing in action. I’m hanging in until death do us part. I have nowhere else to go.

I've had a lot more time to read now with my kids away most of the time, and I've been reading Fire Within, about Teresa of Avila, and St. John of the Cross... and it emphasizes what real prayer is, and what spirituality is. Basically, if you pray your rosary and you brag about it, you're really at the bottom of the totem pole. And if you pray privately and you get a revelation that tells you what to do and you think it's from God and you go act on it, well that's pretty dangerous...

In the same way I think people could have misunderstandings about marriage on all sorts of issues—women who think they're supposed to have romance and fireworks all the time; men who think they're supposed to have obedience. People could read the Pope's encyclical on family, Familiaris Consortio, which is one of the things I read when things were getting bad, and it was very discouraging, because what he describes is so beautiful. What are you supposed to do if you don't have that—does it mean you're not married? Does it mean you go get a divorce, and try to look for the "real thing" somewhere else? So there's got to be more realism.

What sort of advice would you give Catholic couples?

If I had known five years ago what I know now, I would have been much more aggressive in insisting that we get help, because the couple themselves doesn't know anything other than what they pick up from their own parents, their own upbringing, or what they read, or people they're acquainted with.

I think from early on in a relationship, if there are issues that cause tension, the couple should get help. But it has to be the right kind of help. There are schools of thought that are very selfish, that say you should do what makes you feel good, take care of yourself. That's not Christian, that's not Catholic. But there are alternatives to that. There are a lot of really great ministries out there...

So you would say that people of faith are like anybody else. They need to address the human wounds and issues that they bring into a relationship and that may cause problems throughout the marriage?

Yes. It would be a beautiful thing if you could get a marital check-up every so often from someone who is experienced and knowledgeable. You could be asked questions, and the answers would indicate whether your marriage had problems, so you could deal with them rather than sweeping them under the rug or trying to work through them alone. The scary thing is I read the stuff that comes from the Pope about marriage, and it's so wonderful and beautiful and I think: How many people really have that? Maybe it's one in a thousand. It's kind of like reading about a saint. It can be very discouraging, because I'm not like that! Lucky for them—they have all these wonderful things—but I'm not like that. The beautiful stuff is the goal, but maybe we need a little more realism about what average people are experiencing. It's going to have ugliness in it. Let's not be so secretive about it; let's go fix it.

Do you think sometimes faithful Catholics aren't realistic enough about what marriage really is all about?

I think that applies to everybody, faithful Catholics or not. I mean just look at the movies. I think the whole culture doesn't know what marriage is really about. It's the rarest people who know what it's about. Look at me, I'm no expert, my marriage fell apart, so why are you asking me? [laughter]

I think you learn a lot by going through the difficult stuff...

When the difficult stuff is tiny, you're not so hesitant to go look at it. But when it gets too huge, by the time someone's decided they want a divorce, that person isn't going to go for help. They've decided it's over. If five years ago I was more adamant about needing help it probably could have been handled better. But you see, I don't think my story is finished yet.

If we both still hold on to our faith and trust in the authority of the Church—for all I know my husband has been given scandal by some of the slippery reasons in the literature that's published in the United States regarding grounds for annulment, and if he finds out there is no way we're getting an annulment, and he gets designated as a malicious abandoner, and he has to chose between his Church or abandoning his marriage, if he has to choose between being in good standing with his Church, and reconciling his marriage, or continuing with his divorce, and being in bad standing with his Church, that may be enough to motivate him to have a change of heart. Nobody knows.

My sister was saying yesterday that I'm like one of those women whose husband is missing in action. The woman just keeps going, looking and waiting for her husband until she knows he is dead. And I know our marriage isn't dead until one of us is actually dead, so I'm just going to keep looking and waiting. I have nowhere else to go.