Commentary

The Press Release of the President of the St Thomas More Society , Mr John McCarthy, commenting on the words of Pope John Paul on divorce in his Discourse to the Roman Rota was an unlawful interference in the teaching authority of the Catholic Church.

Lawyers who act so as to assist a married person to obtain a divorce under the Family Law Act 1975 are prima facie cooperating in evil because, as the Pope says, repeating the Church's constant teaching, marriage is indissoluble. It matters not that divorce may be easy to obtain, seemingly little more than a formality. Given the respect for marriage which should characterise the Catholic layman's thinking, this facility should make Catholic lawyers even more reticent to be involved than otherwise they might.

In his discourse to the Roman Rota the Pope was at pains to lay down the conditions subject to which a lawyer might involve himself in such conduct, namely, when in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established order . In this way, the element of cooperation in the evil on the part of the lawyer is removed because the legal 'divorce' is not obtained to destroy the marriage. Mr McCarthy effectively removed from the minds of lawyers generally, and from those of Catholic lawyers in particular, the observance of this condition. It is worth studying how he achieved his ends.

He rolls together a number of issues each of which demand separate treatment--1) the position of judges who make divorce decrees; 2) the involvement of barristers and solicitors, 'lawyers.independent professionals', to use the Pope's terminology; in the process; 3) that part of the jurisdiction of the Family Court which respects the welfare of children; 4) that part of the jurisdiction of the Court which deals with property rights of the parties; and 5) the duties of the parties and their legal representatives to seek reconciliation in an endeavour to settle their differences.

The Pope was at pains to distinguish the position of judges from that of independent lawyers. Mr McCarthy sought to confuse the two. He raised the position of barristers and solicitors, legal practitioners, as officers of the court. Legal practitioners certainly have duties which make them officers of the court, but the duties only attach to them once they consent to act for the client . These duties cannot be used to ground an inference that they are in no different position to that of the judge. There is a certain compulsion on the judge. There is no such compulsion on the independent lawyer. He must first choose to act.

The Pope's Discourse did not deal with the welfare of children or with property rights of the parties (nn. 3 and 4 above). He recommended the work of assisting and reconciling persons going through marital crises. The Pope did not criticise lawyers for their involvement in any of these three matters. His concern was only with their cooperation in the evil of divorce.

Comparison with Arguments in Support of the False View of Evangelium Vitae 73

The arguments contained in Mr McCarthy's gloss on the Pope's words are similar to those advanced in support of a false interpretation of the Pope's words in n.73 of his encyclical Evangelium Vitae ( The Gospel of Life , 25 March 1995) which would allow an exception to the principle that it is not licit to do evil that good may come of it.

An argument put there is that a lawmaker may be compelled to vote in favour of pro-abortion legislation. Here Mr McCarthy implies that the lawyer is compelled to act to assist in divorce. There an argument is put that cooperation on the part of the lawmaker in so voting is justifiable material cooperation in the evil conduct of other lawmakers. Here, Mr McCarthy implies that, if the lawyer is cooperating in evil, his cooperation is no different from the justifiable material cooperation which characterises the conduct of the judge because he is likewise ' an officer of the court '.

Just as the arguments in support of that interpretation of the Pope's words in EV 73 are defective, so are Mr McCarthy's arguments on the issue of cooperation by lawyers in divorce. They are both attempts to justify the doing of evil that good may come of it . Mr McCarthy goes so far as to suggest that the conduct of judges in the Family Law courts in relation to children and property is for the common good, when it is nothing more than action designed to limit the particular harm to parties and those affected by their conduct flowing inevitably from the evil of divorce. Their conduct has nothing to do with the common good.

The Pope says: ' lawyers should always decline the use of their profession for an end that is contrary to justice, as is divorce. ' Mr McCarthy says: ' lawyers in Family Law [read 'divorce'] proceedings have grave moral reasons for their professional participation .' He removes the need for the lawyer to make the particular judgement of conscience which the Catholic Church says he is bound to make about each case he has to deal with. This is a gross interference in the personal spiritual life of every legal professional. The Pope's authority is universal He is the immediate superior of every Catholic. Mr McCarthy peremptorily interferes with that jurisdiction.

Mr McCarthy's use here of the expression 'Family Law proceedings' seeks to roll up with divorce the ancillary issues mentioned above so as to introduce confusion into the clarity of the Pope's statement.

Position of the Bishops

No comment was made by any Australian bishop to gainsay Mr McCarthy's gratuitous interpretation of the Pope's words. Not one of them made even a statement distancing himself from Mr McCarthy's comments.

An implication is open from the terms of Mr McCarthy's press release that he had the support of Archbishop (now Cardinal) George Pell for its content. Even if Archbishop Pell had supported Mr McCarthy's interpretation of the Pope's words this would not bind any other bishop because it is against the Church's teaching --it contradicts the Pope's very words. The assertion that the original Italian in which the Pope spoke had been 'misinterpreted or mistranslated in relevant parts' was a furphy designed to lend support to this view.

Position of Catholic Lawyers engaged in Divorce

The writer of this paper is a lawyer. He was accused twenty years ago by a senior Catholic lawyer, subsequently a Master of the Supreme Court, over his refusal to involve himself in divorce of manifesting scrupulosity. He cannot recall a single instance in 35 years of professional life when bishops and priests of the Catholic Church did other than turn a blind eye to this breach of the moral law.

The Pope's Discourse to the Roman Rota was a timely reminder of the moral burdens that legal professionals bear. Consistent with the mind of the Church that it speaks to all men, the moral direction in this serious matter was directed to lawyers generally. However, its effect must first have been felt by Catholic lawyers. The Pope's words ought to have had a salutary effect in the lives of Catholic legal professionals. That effect was removed by the gratuitous intervention of the St Thomas More Society and Mr McCarthy.

Michael Baker