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Ecclesiastical Court: the Experience of the Diaspora

The practice of divorce proceedings in ecclesiastical courts is discussed by the Secretary of the Ecclesiastical Court of the Western American Diocese of the Russian Orthodox Church Outside of Russia, Protopriest Peter Perekrestov.

The Russian Church was deprived for a long time of having its own ecclesiastical judiciary and the opportunity to hold its own court proceedings. The Russian Church Abroad never interrupted its work in this field throughout the 20th century.

Ecclesiastical courts abroad follow church rules and in general offer a great wealth of experience of operating under civil authorities which do not interfere in the internal life of the Church.

This is the reason why the adherence to church law in the practice of ecclesiastical courts in the diaspora is so important for church courts in Russia, which are now in a period of formation.

 - Fr Peter, what requirements have been established with regard to the members of ecclesiastical court in your diocese?

In the Western American Diocese of the Russian Church Abroad, the members of the ecclesiastical court, or, as it was called by the predecessor [Archbishop Anthony] of our present ruling bishop [Archbishop Kyrill], the “presbyter department of the diocesan council,” are the ruling bishop, vicar bishops and all the members of the diocesan council who are clergymen. As a rule, our diocesan council includes the more experienced and educated priests of the diocese. True, at diocesan meetings they usually try to select council members who serve in the San Francisco Deanery, since experience shows that priests from other deaneries find it hard to meet four times a year or more, in San Francisco. The average tenure of today’s members of the diocesan council is 25 years (even including the youngest member, who has only served for three years).

It is worth noting that the members of the ecclesiastical court are only bishops and priests who know well that, just as during confession, they cannot divulge matters under deliberation.

- Does the court adhere only to the Regulations on Ecclesiastical Courts of the Russian Orthodox Church Outside of Russia from 1956, or does it also follow the Ecclesiastical Court Regulations of the Russian Orthodox Church of 2008 and the “Basis of the Social Concept of the Russian Orthodox Church?” In particular, the “expanded” list of reasons for divorce included in the “Basis of the Social Concept.”

- The ecclesiastical court of the Western American Diocese is guided first of all by the decisions of the Pomestny Sobor [Local Church Council] of the Russian Orthodox Church of 1917-1918, then the “Regulations on the Ecclesiastical Court of the Russian Orthodox Church Outside of Russia” of 1956, and also a series of decisions by the Councils and Synod of Bishops of the Russian Church Abroad (for instance, the Synod of the Church Abroad added an unwillingness to have children to the list of valid reasons for divorce). “The Regulations for the Ecclesiastical Court of the Russian Orthodox Church of 2008” has not been reviewed in detail, but since the two parts of the Russian Church are now united, the “expanded list” can certainly be used for guidance.

- What criteria existed for recognizing any given ukase by the Synod (during the Synodal period) as valid?

- The main criteria and authority for divorce proceedings are the decisions of the Pomestny Sobor of 1917-18. These decrees took into account the practices of the pre-Revolutionary Russian Church, including actual prior ukases of the Synod. Obviously, we do not live in pre-Revolutionary Russia, and our situation is very different from days of old, and so this is taken into account. Certain adjustments are made so that our ecclesiastical court is not only contemporary in the best sense of the word, but would correspond to the spirit of the Gospel and the main objective of the court, which is the spiritual healing of the children of the Church.

- What kinds of cases are most often reviewed by the ecclesiastical court?

- The Ecclesiastical Court of the Western American Diocese spends 95% of its time to divorce cases. The court also receives requests for the issuance of various church documents, mainly birth and baptismal certificates. The court also reviews cases involving clergymen, mostly in questions involving defrocking. We rarely review such cases, thank God, maybe once every seven to ten years. The last time was in 2007: a cleric of our diocese left his parish and moved in with a woman. The ruling bishop implored him to repent, or if not then to submit a petition to be defrocked before making a decision on his personal life. This case was studied during a session of the Ecclesiastical Court, which sent him a letter admonishing him and gave him one week to respond. When no reply came, the ruling bishop suspended him from performing divine services. At the next meeting of the Ecclesiastical Court, a decision was carried out on the basis of the 25th Apostolic Rule and the 1st Rule of the Council of Neocaesaria to defrock this clergyman. The decision of the Ecclesiastical Court was submitted by the ruling bishop to the Synod of Bishops of the Russian Orthodox Church Outside of Russia for review and confirmation.

- Describe the process of reviewing divorce cases in the ecclesiastical court.

- All divorce appeals, as a rule, are reviewed only upon the couple having obtained a civil divorce. With a civil divorce in hand, an Orthodox Christian, the “claimant” (or according to Church rule, the “offended party”), can appeal to the ruling bishop (who is the president of the ecclesiastical court) for a divorce. This chronological order-first a civil divorce, then a church divorce-was established for two reasons:

à) The ecclesiastical court considers a divorce case from the point of view diametrically opposite from the accepted contemporary legal norms;

b) The ecclesiastical court does not want its decision to be used as evidence in a civil suit, especially when the matter is connected with child custody or property issues. In other words, the ecclesiastical court, with spiritual goals in mind, distances itself from civil law. Of course, facts discovered during the civil divorce (including those of a criminal nature) can heavily influence the decision of the ecclesiastical court.

- Is judicial doctrine the source of law? What judicial significance can the interpretation of canon law experts have, or legal custom?

- As far as interpretation by canon law experts is concerned, over the thirty years that I have been Secretary of the Western American Diocese and its Ecclesiastical Court, we have not needed to refer to it. In difficult cases, our Ecclesiastical Court tends to rely more on the experience of the archpastors of the Russian Church Abroad than on books and the authority of pre-Revolutionary canonists, since, I believe, there is much that is outdated in their work. In our diocese, we can seek advice from Protopriest Alexander Lebedeff of Holy Transfiguration Cathedral in Los Angeles, who has been a priest for over 40 years, and was the Secretary of the Eastern American Diocese. He is a very well-respected authority on canonical practice in the Russian Orthodox Church Outside of Russia.

- Does the ecclesiastical court of one diocese have the technical ability to apply the judicial practice of another diocese?

- Yes, but I don’t remember any instances when we have done so, we’ve never had occasion to. Our diocesan Ecclesiastical Court has broad, varied experience. I think that the general outline of divorce proceedings in the dioceses of the Church Abroad is the same. True, in several dioceses, unlike the Western American Diocese, the ecclesiastical court includes only priests, and the decisions are confirmed by its ruling bishop.

- Are meetings recorded in minutes?

- Yes, but our diocese does not do so in great detail, as in some others. Maybe it is worth outlining how divorce proceedings actually happen:

à) After a couple receives a civil divorce, the “offended party” (sometimes both spouses are “offended” and both wish to obtain a divorce), submits an appeal for divorce addressed to the ruling bishop. This appeal includes the ages of the spouses, number of children, which parish they belong to, who their spiritual fathers are, where and when they were married, and then a brief explanation of their married life, followed by the reasons the marriage disintegrated. The appeal must state who left whom and who filed for civil divorce. The appeal is accompanied by the church marriage certificate, proof of civil divorce, contact information for the claimant, and a divorce fee;

b) the bishop reviews the appeal, makes a resolution (“to the Secretary of the Diocesan Council for registration”) and forwards it to the secretary;

c) the secretary then forwards a copy of the appeal (either by traditional registered mail or via e-mail, which is easy and efficient), with a corresponding letter to the claimant. According to our church rules, a divorce case is sent to the home address of the spouse of the claimant, though today because of frequent changes of address this is not always possible. The cover letter indicates that the respondent has the opportunity to examine the submitted appeal and respond to it and give reasons. A respondent is usually given two weeks for this;

d) at a regularly-scheduled meeting of the Ecclesiastical Court (we meet four times a year), the appeal and response, if one exists, are reviewed again. On the basis of these two documents, the Ecclesiastical Court makes a decision. If the respondent accuses the claimant of a serious transgression, then the claimant is sent a request for explanation. In certain instances, the Ecclesiastical Court contacts the spiritual fathers of the claimant and respondent, asking for testimonials of their spiritual children and express their opinion on the matter;

e) as a rule, one or both spouses are guilty of violating the vows made before God, and the Ecclesiastical Court, taking into consideration the spiritual benefit of the divorcing parties, imposes penance upon one or both of them. Usually this takes the form of regular reading of Holy Scripture, observing all fasts, and making confession every Lenten period, but without partaking of the Holy Eucharist for some period of time-usually one or two years. An innocent party is given blessing for entering into a second marriage. If the guilty party is living in sin with someone (even in so-called civil marriage), then in order to avoid sin, an exception can be made; the person is granted permission to marry again and execute his penance as a married person.

f) after the meeting of the Ecclesiastical Court, the minutes and divorce documents are drawn up, which indicates who was to blame for the dissolution of the marriage, and any penances imposed, and a letter to the respondent, also with the indication of guilt and imposition of penance.

Consequently, the minutes, appeal and response can always indicate the reason the Ecclesiastical Court made its decision.

- How much access is granted to such decisions in the diocesan archives?

- The archives of the Ecclesiastical Court are accessible only to its members, and to the spiritual fathers of the divorcees with the blessing of the ruling bishop. Sometimes a spiritual father must know specific details of the matter in order to properly guide their spiritual children after a church divorce, or simply to clarify the situation for him. 

- Are any outlines of the court’s practice published? Would that be possible?

- No, we don’t envision that, so as not to encourage the thought of divorce.

- Is the concept of oikonomia [leniency] often used in applying the norms of church law in concrete instances?

- I would say that we take great care for order and accuracy in the divorce proceedings before us. In the decisions of the Ecclesiastical Court, we not only apply pastoral condescension but desire to help the divorcing spouses recognize the sanctity of church matrimony, and their responsibility before God, and also a call for repentance, of recognition of past mistakes and a required effort not to repeat them in their next marriage.

Our Ecclesiastical Court aims to give people the opportunity to begin anew both in their churchgoing and personal life. Sometimes, to achieve the desired spiritual results, stronger spiritual medicine is need, sometimes more leniency, and thank God, we have witnessed good fruits from both acrivia [strictness] and of oikonomia. 

- How are investigations conducted in these cases?

- We have not had much need for this. Usually one or two telephone calls to the parish priest of the divorcing spouses, to confirm the main points. If there are serious accusations between the spouses, they bear the burden, not us, of presenting evidence to the Ecclesiastical Court: either documentation (most often copies of correspondence) or the names of witnesses. Obviously, our diocese is unable to conduct full-blown investigations.

- What is the procedure for divorces of people married in other jurisdictions?

- If people consider themselves members of the Russian Orthodox Church Outside of Russia and wish to marry again in its churches, even if they were first married in Russia, in another country or another US jurisdiction, their divorce proceedings follow our system. In fact, there are people who have no intention of remarrying, but are burdened by their matrimonial vows and feel that until they are released from these vows, they are actually still married and bear that responsibility. This also applies to married couples who wish to become monastics: before making their monastic vows, they must be released from their matrimonial vows.

- Does the divorce decision issued by the civil authorities have any weight in a church divorce case?

- Decisions by divorce courts in the USA have no weight in principle for church court, since they don’t determine who was to blame. Those courts make decisions on child custody and parental rights, on alimony amounts and the division of property, though certain facts emerge during the proceedings of civil divorces-let us say, violence in the family, cheating, psychiatric illness, etc, which could be considered by the Ecclesiastical Court.

- Are the differences in the recognition of such decisions based on the location of the civil court, that is, if the divorce were granted in Russia and not the USA, for example?

- No, but since the Russian Church does not have an ecclesiastical court for divorces on the territory of the Russian Federation, we often must explain to parish priests of persons who were divorced within the Russian Church Abroad what our process and procedures are.

- Do you think that Russia needs an ecclesiastical court for divorces? Could the experience of such courts in the US be used as a model?

- I think that an individual examination of divorce matters by a bishop on the basis of, say, questionnaires or the decisions of a civil court, as a rule, excludes the possibility of a well-founded and exhaustive decision on such an important spiritual matter. On the other hand, the Russian Church is so large, that it is not that simple to review dozens or even hundreds of divorce cases every month. It probably makes sense to consider ecclesiastical courts and divorce proceedings in one of the committees of the Inter-Council Presence of the Russian Orthodox Church and to study the experience of ecclesiastical courts in the Church Abroad.

- What does the court do if a spouse living in the USA requests a divorce from someone living in another country, for instance, in Russia?

- This happens often. In these cases the difficulty is usually how to deliver a copy of the appeal to the respondent who lives in Russia, and give the latter a chance to respond.  Sending registered letters to Russia is expensive an often unreliable. In recent times we try to conduct such communication via e-mail, sometimes through relatives, and sometimes we ask priests we may know or friends in the local area where the respondent lives to help deliver it. This is a very big problem-often the claimant doesn’t even know where the spouse lives, especially if the divorce occurred many years earlier.

- We know of instances when one spouse blames the other for leaving them as a basis for divorce, when in fact they live apart by mutual consent. How can a court deal with such abuses? What other abuses do couples seeking divorce resort to?

- We don’t have the resources to investigate all the facts. We understand that if a person wants to receive a church divorce and to remarry in church, then he or she is relatively decent. We make every effort to get both sides to tell their side of the story, and make a decision on that basis. I must say that thanks to our level of experience and God’s help, the Ecclesiastical Court of the Western American Diocese can on the basis of a few propositions determine whether we are getting the truth, whether something is being hidden and what has actually taken place. Of course, there are no guarantees that we always make a 100%-correct decision.

- Is the former practice of public announcements of divorce inquiries still used? Or divorce announcements?

- We no longer follow the practice of publishing inquiries. There were cases in the past when claimants published advertisements in the city where the respondent was believed to live. We also don’t publish final decisions. It is worth noting, of course, that with the internet, plus search engines and social media, a great deal can be discovered very easily.

- Tell us about the cases that were most memorable or especially interesting.

- I must say that being the Secretary of the Ecclesiastical Court is a joyless task, but someone has to do it (and it is time for me to retire!). Usually divorcing spouses protest decisions, including the levels of repentance and penance, to the secretary, though it is not the secretary but the entire Court that makes these decisions! But there are happy moments, too.

I remember how one young woman was in shock at the penance imposed on her. In the decision it said that she must make confession to her spiritual father every Lenten period, but she had no idea what a spiritual father was. But, taking her penance seriously, she found a spiritual father, and, one might say, became a new person.

Very interesting and memorable were a few cases in which the claimant could not provide contact information for their former spouses. Sometimes, out of curiosity, and following my “investigative nose” helped these people find their lost spouse. When I succeeded, it was very satisfying.

Of course, it is a great joy when people repent, recognize their errors, their errant attitude towards the Mystery of marriage and transform themselves. I think that there is no greater joy for members of the Ecclesiastical Court than to see that despite human weakness, temptations and the destruction of the “church of the home,” people try to salvage fragments (children, good relations with former spouses), and humbly and with repentance embark on a new spiritual life, often by creating a new “church of the home.”