So the question remains, in this situation I mentioned, is divorce the only possible way to “ensure certain legal rights” and protect inheritance? There was only one piece of property to be divided up, and that could be done without divorce. I suppose divorce would ensure that the children inherit directly from each parent, rather than the assets from each parent’s estate going to the other parent. But by divorcing, if either parent remarries, there is increased risk that the assets of that parent would end up going to the new spouse in the event of the remarried parent’s death.
On the other hand, if they don’t divorce, and one spouse inherits the assets of the other then remarries, then the assets are still at risk of going to a new spouse. So that one is kind of a “six of one, half-dozen of the other”. It would seem to me that in my current situation, the most likely reason for the divorce is to enable one of the spouses to remarry.
The questioin you are really asking is, what is the moral/sacramental issue herein. As an attorney, unless you are also a Canon lawyer, you will know that such an issue is out of your area of expertise.
The parties are separated; they have been so for a long period of time. The issue of the canonical/sacramental status of their marriage is between them, and for all practical purposes, the sacramental status will not be resolved unless and until they are divorced and one or the other applies to the tribunal for a decsion.
I think you have a moral duty to reference to the husband, your client, the teaching of the Church on the presumed validity of a marriage and a short reminder of what constitutes adultery.
I also know other attorneys may disagree with my recommendation - they would hold that your only business as an attorney is to be an attorney - that is, to speak only to the civil legal issues.
Having done divorce work for 12 years, I would disagree. But then, again, I am no longer practicing.
Once having said what you have to say, you are not his pastor; you are his attorney. You could choose to decline the divorce. However, by doing so, you are impliedly making a decision beyond the parameters of your information and expertise; while the marriage is presumed to be valid, and he may well have a girl friend, your action does not constitute the forwarding of any action on his part that would constitute adultery. You have said what needed to be said in the area of morality, and his moral choices in that area are not going to be decided by your filing and finishing the divorce.
If you are not comfortable, you can resign; if you do so, you need to tell him clearly why - that you feel that you are supporting a potential decision on his part that is adulterous. Some people will get it, some won’t.
The purpose(s) of the divorce can be manyfold. It can resolve property and inheritance issues. It can be a start of healing old wounds (and yes, it can also inflict new ones). It can be the source of resolving an issue from the beginning of the marriage - whether or not there is grounds for a decree of nullity. It can be the source of a new marriage. And rarely, it can also be the source of this marriage being re-established.
An analogy (and some would say a very poor one) is to say that to have a child is to create someone who will commit mortal sins. We have a duty to others to uphold the moral law. Ultimately, they make the decision to sin or not sin, whether they are a child or a client. The arguement that they may subsequently commit the sin of adultery sounds like a really good argument; however, it could be applied into who knows how many other legal issues; following that logic would result in no Catholic attorneys.
lol