I was pleased to see my old friend, Dennis, again. Our conversation rattled on until he reached a subject of greater immediate importance to him. He had been married, divorced and re-married. And he told me of his distress about his relationship with the Church. He had recently read Cardinal Müller’s remarks that there was no chink in the Church’s position on re-married Catholics receiving the sacraments, that the Orthodox Church was in error about this, and that second marriages were beyond the mercy of God. I was able to reassure him at least that even the head of the CDF could not decide on the stretch of God’s mercy. Since I am not in the business of solving moral problems for others, I confined myself to asking him how his options with regard to both wives and the children of the marriages would relate to justice.
The question came as a surprise; it had not occurred to him, as a Catholic of our older generation, that justice might be an issue – after all, this was a matter of Church law. We had not been brought up to understand that justice rather than law is the place to start. And I was left to reflect that although the Church’s insistence on the indissolubility of consummated, sacramental, marriage is a given, the major developments it has permitted over the centuries in the matter of marriage might well one day allow the remarried to receive the sacraments. It might even argue that those caught in an objective state of sin might need them more than most.
The first issue which came to my mind was the emphasis we give to sacramental marriage by comparison with natural marriage. This contains the danger that we devalue natural marriage – forgetting that this is built into our created nature. We may even forget that Jesus’ statement “…what God has joined together let no man separate” predates sacramental marriage.
Despite this, it is taken for granted that a Catholic contracting marriage outside the Church will be regarded as free when making a second marriage. The logic may be irrefutable but justice may not be served. The Church is merely saying, as a legal statement, that the first union was not a marriage for the Catholic and therefore there is no marriage bond. But the Catholic party undertook a natural marriage by making a solemn promise, and has now – with or without good reason – broken it. And the partner was entitled to rely on that promise. At the very least there should be some indication in the solemnization of the Catholic marriage that something regrettable has happened.
Many couples enter marriage with the intention of avoiding conception, at least for a period. They might do this either by a form of physical contraception or by chosen suspension of fertility through taking the pill. But this, it is argued by theologians in good standing, confines their sexual connection to non-marital acts which are, by definition, incapable of achieving consummation. This would leave the marriage potentially open to being dissolved.
Secondly, a marriage between unbaptized people can be dissolved if one party decides to be baptized and the other party is unwilling to remain peaceably in this situation. Called the Pauline Privilege, it enables the former marriage to be dissolved. Although the Privilege is exercised “in favour of the faith” the new partner does not, with the bishop’s permission, actually have to be baptized. This is certainly odd. An extension in the XVIth century allowed slaves to re-marry although the disposition of their former wives could not be ascertained. Is this what Paul had in mind?
Thirdly, the Petrine Privilege, which strangely does not appear as such in Canon Law, enables the Pope to dissolve any marriage between non-Catholics, consummated or not, provided one of the partners was not baptized. It has often been exercised in the past — and in a wide range of, somewhat elastic, circumstances.
Annulment of marriage is a different issue since it is concerned with whether or not a true marriage has ever taken place. The most tendentious area concerns whether the couple had been able to form a proper married relationship at a psychological level. It might come as a surprise that marriages which have survived several years, and borne children, can qualify for annulment under this head. I know of cases from my marriage counselling days when this lack of capacity was crystal clear, but the evidence will always be uncertain. Timothy J Buckley CSSR told us in Catholics in England, 1950-2000 ”the grounds for annulment are now so broad that it is possible to argue, as some canon lawyers do, that it should always be possible to establish a basis for annulling a marriage whenever it has irretrievably broken down.” John Paul II spoke, in 1987 of “the scandal of seeing the value of Christian marriage destroyed in practice by the exaggerated and almost automatic multiplication of declarations of nullity.” And in 2009 Benedict XVI made a similar point. Interestingly, Francis, returning from Rio, noted that he had heard the view that half of all marriages are reputably void through defect of intention. And he said, of the issue of remarriage and the Sacraments, “I think that it’s necessary to look at this in the totality of matrimonial ministry.“
Against the patchwork of accommodation developing over the centuries, I wonder whether admitting remarried Catholics to the sacraments, without prejudice to the irregularity of their status, would be such a big step. We shall see.