Unprecedented Challenge to "No Fault" Divorce-8/04

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subject: Unprecedented Challenge to "No Fault" Divorce-8/04


Very interesting - diane

CATHOLIC DEFENDANT FILES UNPRECEDENTED
CHALLENGE TO "NO-FAULT" DIVORCE
- submitted by Judy Parejko

August 23, 2004
An Ohio wife and mother has filed an unprecedented divorce challenge, which
has the potential -- certainly for Catholic marriages but possibly for ALL
marriages -- of impacting the "routinized" approach now taken by the courts
in handling no-fault divorce. In confronting the ubiquitous "no-fault"
system with its harmful effects on adults, children, and society, she models
her convictions after Catholic Saints --- Thomas More, Joan of Arc, and
Maximillian Kolbe --- all of whom stood up against great odds for what they
believed in.

Marie (Bai) Macfarlane, who is the defendant in the case, has asked the
court to transfer jurisdiction of the case to the Catholic Church, arguing
that, prior to their marriage, she and her husband had entered into a "de
facto" prenuptial agreement to abide by the "rules" of the Church. These
rules include the requirement to first contact the bishop before moving out
or filing for divorce.

Papal documents maintain that "jurisdiction" over Catholic marriage has
never been relinquished to civil authorities, but Catholics behave just like
everyone else when they want out of their vows --- they head straight to the
attorney's office instead of to Church authorities.

On behalf of the defendant, the Chancellor of a Wisconsin Diocese who is a
canon (Church) lawyer, has filed an affidavit, outlining the nature of their
binding prenuptial agreement. A supportive legal opinion is anticipated from
an Ann Arbor law professor. The press release below is designated for public
distribution. Links to the legal arguments used in the case can be found in
the online press release at www.marysadvocates.org

For further information, contact:
Judy Parejko, Lacrosse, WI
Author of "Stolen Vows"
www.StolenVows.com
e-mail: jparejko at juno.com
Or:
Marie (Bai) Macfarlane, Westlake, Ohio,
Author of "and Justice for None"
www.marysadvocates.org/aboutus.html
e-mail: ma.defending at marysadvocates.org
Cuyahoga County DR-03-294327
Attorney Bob Lynch can be reached through his answering service:
216-771-0999


- - - - PRESS RELEASE - AUGUST 23, 2004- - - - -
CATHOLIC DEFENDANT FILES UNPRECEDENTED
CHALLENGE TO "NO-FAULT" DIVORCE

Couples who marry in the Roman Catholic Church are bound by an antenuptial
agreement (also called a prenuptial agreement), which includes specific
rules about separation and divorce, according to a brief filed today by
Cleveland attorney Robert Lynch, on behalf of his client, Marie (Bai)
Macfarlane.

Mr. Lynch has asked the court to dismiss all temporary orders, arguing that
his client's husband, William (Bud) Macfarlane, Jr., violated the couple's
"prenuptial" by moving out of the house and filing for divorce without first
contacting the bishop. A judge, operating under the Ohio No-Fault code, has
already ordered the sale of the family home as well as a change in schooling
for two of the couple's four sons -- who are all under the age of 13.

According to the argument presented by Mr. Lynch, the couple willingly
agreed to abide by the Church's "rules" during their Pre-Cana marriage
preparation and also prior to exchanging vows on their wedding day. He
supports his argument with a 4-page affidavit, written by Benedict Nguyen,
who is a canon lawyer and serves as Chancellor of the Diocese of La Crosse,
Wis. The affidavit outlines the nature of the "de facto" prenuptial
agreement to which all Catholics consent prior to marrying in the Catholic
Church.

Previous case law shows that the prenuptial agreements of Orthodox Jews have
been upheld by civil authorities. Mr. Lynch asks the court to uphold his
client's prenuptial agreement in the same way.

Judge Cheryl Karner, who is hearing the case, and is herself Jewish, does
not appear to understand the import of the Macfarlanes' prenuptial
agreement, evidenced by the statements she made at a prior hearing:

". . .your religious conviction and the contract you entered into in front
of your priest, has priority, I can understand that from a religious point
of view, but it doesn't from a secular point of view and doesn't from a
legal point of view."

Typically, the Catholic Church does not get involved after the divorce has
been granted, at which time, one party might petition the Church's tribunal
to obtain an annulment of the marriage, in order to re-marry within the
Church. But prior to divorce, canon 1153 in the Code of Canon Law, requires
that a spouse must first demonstrate to the bishop or the tribunal that
there's an acceptable reason for separating from the other spouse, unless
there is "danger in delay". In addition, canon 1692 requires that a spouse
must receive authorization to "approach the civil forum." Mr. Macfarlane did
not first consult with Cleveland's Bishop Pilla before moving out of the
family home and subsequently filing for divorce. Ohio courts grant a
no-fault divorce to the petitioner after one year of separation, without
regard to the circumstances.

Stephen Safranek, a professor of Law at the Ave Maria School of Law in Ann
Arbor, Michigan, maintains that the contract they made placing jurisdiction
in the courts of the Catholic Church should be upheld --- in the same way
that other arbitration agreements are upheld.

When the case was first filed, Mrs. Macfarlane had asked the judge to send
both herself and her husband to conciliation services, so they might resolve
their conflict, but Judge Karner would not do so unless both parties were
willing to attend, and Mr. Macfarlane refused.

Mrs. Macfarlane then learned that Cuyahoga County had never even instituted
any conciliation programs, as are required in Ohio Revised Code 3117, which
was enacted to ameliorate the affects of the "no-challenge" system of
no-fault divorce, where the petitioner is always granted his/her request for
a divorce. She suspects that this Code has not been properly implemented in
any Ohio county, which means there is nothing offered to the spouse who
wants a chance at preserving his/her intact family when facing the threat of
divorce.

The change to "no-fault" divorce was originally promoted in the late '60's
by lawyers as a way of actually saving marriages --- by eliminating the
bitter acrimony of the "fault"-based divorce system where one party had to
accuse the other of wrongdoing. In addition, discussion about changing the
law included the idea that "court-ordered counseling" would be part of this
new system.

The sinister side to no-fault divorce is that most people assume no-fault
means "mutual consent", whereas up to 80% of divorces are "coerced" by
judges who believe they need to keep the divorce "conveyor" belt rolling.
Reluctant spouses are forced to sign "agreements" about property and
children at the threat of being jailed. Mrs. Macfarlane has been
so-threatened, and she tells her story --- including the judge's own words,
taken from the court record --- in a quickly-written book called, "and
Justice for None". Her motive is to convey to others the diabolical nature
of this country's prevailing divorce system, where jurisdiction over
marriage is based solely on a residency requirement and where judges deny
any measures requested by the defendant that might salvage marital
relations.

The Macfarlane case is significant, since there are no safeguards left in
the civil system for marriages facing divorce. The Catholic Church, which
views marriage as a Sacrament, is now being tapped to apply the laws that
have been "on the books" since 1983, in order to help her families avoid the
devastation of divorce. Other churches may be inspired --- by this
"Catholic" example --- to begin instituting their own similar safeguards.


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