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This is not a pastoral advice question, I'm happily married. I just really don't know the answer to this question to help a friend, so I guess it's pastoral pastoral advice, but I definitely don't want a 'try to work it out' answer, just the facts please.

Sacramental marriage cannot be undone by civil divorce, that much is clear from scripture and Church teaching. However, what does civil divorce mean for the sacramental marriage?

If it is OK, what factors should a person take into account when forming their consciences to up and leave (for instance there could be a case where the laws in a particular region require someone to serve divorce papers in order leave their spouse with their kids and not be accused of kidnapping them) and if it is not OK then what recourse does one have to protect themselves and their children against their spouse, that does not constitute a grave sin?

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As usual the Catholic Encyclopedia is helpful here.

The Catholic doctrine on divorce may be summed up in the following propositions:

  • In Christian marriage, which implies the restoration, by Christ Himself, of marriage to its original indissolubility, there can never be an absolute divorce, at least after the marriage has been consummated;
  • Non-Christian marriage can be dissolved by absolute divorce under certain circumstances in favour of the Faith;
  • Separation from bed and board (divortium imperfectum) is allowed for various causes, especially in the case of adultery or lapse into infidelity or heresy on the part of husband or wife.

I would take that last part to indicate that if the marriage is unlivable in (for example if there is violence or other abuse), then civil separation is a viable option. In most jurisdictions civil separation does not need to be followed by a divorce - I have known people who lived in a state of separation for decades. The only practical difference is that a separated person cannot remarry. As I'm sure you are aware, sacramental marriages can be annuled.

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  • I see a problem with your last statement, " Sacramental marriages can be annulled" This is a little misleading. An annulment indicates that a sacramental marriage never occurred. If the sacrament was valid, there is no declaring it invalid. I also think that the bullet points here, although accurate, need the definitions associated with them on your link in order that readers may not be confused.
    – Marc
    Jan 21, 2018 at 15:29
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In some cases the rules for a church annulment may coincide with the rules for a civil divorce, but not a civil annulment (those latter rules obviously depending on the jurisdiction in question).

This would mean that someone would be able to be not married, in the eyes of both church and state, but while the state considered them divorced - that is, that they had been married but are no longer - the church would consider them to have never been married.

There is also Pauline Privilege. The church considers most non-Christian marriages to be lawful and valid, but non-sacramental. However, if two people were both non-baptised at the time that they got married, and later one of them converted to Christianity (note, to Christianity - not to Catholicism from another form of Christianity) and was baptised, then they may leave the marriage. This has been justified in relation to 1 Cor 7:10-15.

A more recent extension of this is Petrine Privilege, where a baptised person marries a non-baptised, and the non-baptised remains un-baptised, then it can be dissolved (again, it would be lawful and valid, but not sacramental) by the pope, if the marriage was seen to impede the spiritual life of the believer.

Divorce a mensa et thoro - still a legal concept in some places, was actually originally a matter of the ecclestiastical courts. This would be close to what is called legal separation in many jurisdictions - the couple are married, but do not live together, and there may or may not be a form of alimony and/or maintenance paid.

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Catechism of the catholic Church 2383 The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law [Cf. CIC, cann. 1151-1155.].

If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.

However, what does civil divorce mean for the sacramental [between baptized persons] marriage: marriage bond still remains and parties are not free to contract a new marriage.

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what factors should a person take into account when forming their consciences to up and leave

Well, there's this from Malachi 2:16:

"I hate divorce," says the LORD God of Israel

It's really hard to overstate that. The idea of "forming their conscience" to do something the Lord hates, even if you're only talking about the civil aspect, smacks of open rebellion against God, the very heart of sin.

The alternative in a dangerous situation, since we're talking about civil law, could perhaps be a restraining order.

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  • There are jurisdictions where one cannot obtain a restraining order against ones spouse.
    – Jon Hanna
    Dec 16, 2011 at 22:19
  • I don't think Malachi 2:16 proves that "forming their conscience" to divorce is the same as "the very heart of sin." I think a strong case can be made that God hates capital punishment, too; but He still commands it certain cases. In other words, just because God hates something does not necessarily mean it is always sin.
    – Flimzy
    Dec 18, 2011 at 9:02

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