Catholic Apologetics Online

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Laywers and divorce proceedings

1251. May a Catholic lawyer plead on behalf of a person who wants to obtain a divorce?

A Catholic lawyer can, of course, take up the case of a person who is resisting a divorce. But difficulty can arise when he is asked to plead on behalf of one who is seeking a divorce. Much depends upon the circumstances of the case. If a marriage has been declared null and void in the eyes of the Church by the ecclesiastical authorities, and the parties are seeking merely the removal of the effects of civil law, it is quite lawful for a Catholic lawyer to accept the case. The parties are justified in seeking a civil divorce, and, therefore, the Catholic lawyer is justified in co-operating with them. If, however, the marriage is perfectly valid from every point of view, then one of two positions will arise. Either the party seeking the lawyer's services has no intention of attempting a second marriage, and merely wishes to secure civil recognition of a justified separation; or he (or she) intends straight out to get a divorce and remarry.If a justified separation without remarriage be intended, a Catholic lawyer could assist in the securing of legal freedom. But where the petitioner obviously intends to get a divorce and to remarry, a Catholic lawyer could not take up the case unless his refusal would result in very grave injury to himself; and also unless he were sure that his action would not be the cause of scandal to others. Of course, if these circumstances were present to justify his acceptance of the case, he himself would have to intend only the abrogation of civil obligations, and in no way the proposed subsequent marriage.

1252. Some weeks ago, in your interesting session, you said that a Catholic lawyer may defend a person he knows to be guilty of wilful murder.

That is so.

1253. Later you interpreted the moral inability of a Catholic lawyer to appear for plaintiff in divorce proceedings.

I said that he could do so, if a justified separation alone were sought, without any intention of remarriage. But if the petitioner obviously intended divorce and remarriage, a Catholic lawyer could not in conscience take up the case, unless there were very grave reasons to excuse him.

1254. To my way of thinking, these two cases form a moral paradox.

They do not really do so. I will make this clear in dealing with the points you submit.

1255. In the murder case, the lawyer must definitely resort to immoral means to secure his client's acquittal.

In dealing with that matter, I expressly said that the lawyer may not resort to any immoral means. If he cannot secure his client's acquittal without resorting to immoral means, then he cannot secure his client's acquittal. To say that a lawyer is morally justified in defending a murderer whom he knows to be guilty is not to say that he is obliged to secure an acquittal by hook or by crook.

1256. He must of necessity be guilty of perjury.

That is not correct. On no account may he be guilty of perjury. If the murderer will be condemned unless the lawyer commits perjury, then the lawyer must allow the client to be condemned.

1257. I fail to see how he can prove a guilty man innocent without a whole tissue of wilful lies.

Herein lies the cause of all your difficulties on this point. You wrongly take the position that the lawyer has to prove his guilty client innocent. But he does not undertake to do that at all. His duty really is to force the State to prove him guilty before convicting him. When the State wishes to vindicate its laws, and charges a man with a capital crime against those laws, the burden of proving the man's guilt rests upon the State. Even though the man be guilty in God's sight, the State must prove that guilt to its own satisfaction before convicting him. And unless the State can prove it, the State has no right to inflict its penalties. For if the State could inflict penalties without proof of guilt, there would be fearful miscarriages of justice. Therefore even the State gives a guilty man the right to plead "not guilty" - precisely because he is not guilty in the eyes of the law until the law has proved its case. And the arrested man can plead not guilty either personally or through a lawyer. In other words, the arrested man uses the legal knowledge of the lawyer in the exercise of his right to force the law to prove its case before convicting.I hope all is now clear. The lawyer does not undertake to prove a guilty man innocent. It is not for him to prove that the man did not commit the crime. But it is for him to watch the State case, and to say to the State, "Unless you prove that he did commit the crime, you cannot punish him." If the matter brought forward is not evidence, he must point that out. If admissible evidence is not conclusive, he must point that out. And if, in the end, he succeeds honestly in showing that the State has not proved its case, he has done his duty to the State, and secured the rights of his client, in preventing a conviction. A lawyer, then, is justified in defending a murderer whom he knows to be guilty. Now let us turn to your remarks about the divorce case.

1258. The divorce lawyer has recourse to no dishonest means.

Nor does the lawyer who defends a guilty murderer. So that point lapses.

1259. His client, seeking the divorce, has a definite legal claim for a dissolution of the marriage.

The man charged with murder has a definite legal right to plead not guilty. Both lawyers are still on the same footing so far.

1260. The divorce lawyer is merely marshaling certain facts attested by impartial witnesses.

The other lawyer is merely sifting the evidence produced by the State, and pointing out every fallacy he can detect in it, proving if he can that it is not conclusive. So far, things are still equal.

1261. It seems absurd to justify the lawyer defending an immoral person, and to condemn him who upholds the just rights of a perfectly decent claimant.

You have no right to contrast the guilt of the murderer with the decency of the applicant for divorce. We are dealing with law. Now, although the lawyer knows that his client is guilty of murder, the State does not. The State may suspect it, but the State does not know it until it can prove its case. And, in the eyes of the State, a man is innocent until proved guilty. Therefore, the lawyer who defends the murderer is equally upholding the just rights of his client as the lawyer upholding the claim of the plaintiff for a divorce.But now comes the question. Granted that the lawyer may defend the murderer, why cannot a lawyer take up the case of perfectly decent claimant for a divorce?I said that, under certain circumstances he can. If the marriage were null and void in itself, the lawyer could assist in getting a civil divorce. So, too, if permanent separation is justified, and separation only be intended.But if the client is validly married, and intends not only to get a divorce, but to contract another marriage, then the Catholic lawyer cannot co-operate in the evil plan."He who puts away his wife and marries another," said Christ, "commits adultery." If a man says to a Catholic lawyer, "I wish to put away my wife and marry another," the Catholic lawyer must refuse to help him, unless very grave reasons excuse such co-operation. Where the lawyer who defends the murderer is not asked to co-operate in any prospective evil, the divorce lawyer is being asked to do so.

1262. I do not think the lawyer is generally cognisant concerning the client's intention of subsequent marriage.

That is a matter of opinion. Personally I find it difficult to agree with you. In talking over the case, and one of such domestic intimacy, it is hard to see how a client could avoid betraying his personal aspirations for the future. However, such speculations are beside the point. For I have restricted the case to that in which the lawyer does know of an intended second marriage. If he does not know, he could be in quite good faith by believing that a justified separation only is intended. When he is cognizant that a second marriage is the object in view, he would sin did he co-operate with the plaintiff, unless grave injury would result to himself.

1263. I could not appreciate your point in moderating the obligation of the divorce lawyer according to a possible loss of prestige in his practice. His conduct would be either immoral or not.

The ethical point in question is difficult, but I will try to make it as clear as I can. You say that the lawyer's co-operation would either be immoral or not But morality of conduct may be measured either from the very nature of the action involved, or from the circumstances surrounding the action.For example, perjury is always evil in itself, and it can never be lawful to commit perjury. But whilst perjury is always immoral, there are actions which may be immoral or not according to the circumstances.For example, is it immoral for a grocer to sell a box of matches to a customer? You will say no. But if the customer says that he wants the box of matches to burn down his neighbor's house, would it be immoral to let him have the matches for that purpose? I think you will say yes.But let us go on. Let us suppose that two men come into the shop. One demands matches for the purpose of burning down a neighbor's property. The other levels a revolver at the grocer's head, and says, "Give him the matches, or I'll blow your brains out." Under those circumstances, would it be immoral on the grocer's part to sell the box of matches? It would not. The grocer would be morally justified in saying, "To sell a box of matches is not an evil action in itself. I myself have no sinful intention of destroying another's property. And certainly I am not obliged to suffer serious injury personally rather than permit these evil men to do what is wrong." Now apply this to the divorce lawyer. It is not an evil thing in itself to ask the civil law to abrogate the effects of civil law. The marriage bond is really unaffected by that.But if the client wants an abrogation of civil effects in order that he may live with another woman despite God's prohibition, then the lawyer cannot normally cooperate in such a plan. It is equivalent to saying, "I can't let you have the matches for that purpose." But a very grave injury to himself personally could justify him in saying, "To seek an abrogation of civil effects by civil law is not in itself evil. I certainly do not intend that this client should violate God's law as he proposes to do. And I am not obliged to suffer serious injury rather than permit him to do wrong. Normally I could not fulfill his request, but in these circumstances I would be free from guilt." Surely you can appreciate the point now.It is never lawful to do anything which of its very nature is dishonest and immoral in itself.But it is lawful at times to do a thing which is all right in itself, yet which will prove to be an occasion of abuse by others. This is lawful provided one has no personal intention of the subsequent evil, and also provided the gravity of the injury to oneself is proportionate to the gravity of the abuse of which others will be guilty.

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MORE FROM VOLUME 3

• About the Author
• Preface
  - Msgr Fulton J Sheen
• Author's Foreword
  - Dr Rumble, MSC

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