Pope Francis recently lamented the fact that a declaration of matrimonial nullity “is thought of as a cold act, a mere ‘legal decision’.”
In an annual address to the Roman Rota — the Vatican court that mostly handles appeals of diocesan marriage tribunals from across the world — he said the Church-appointed judges that hear marriage nullity cases “cannot disregard the memories, made up of light and shadows, that have marked the life, not only of the two spouses but also of the children.”
It was a strange complaint to bring to this tribunal, since the Rota deals in nothing but cold, legal decisions.
A judge in a case of marital nullity is more interested in what happened before the wedding than after. Life’s “light and shadows” — especially the “light and shadows” of the lives of the children — don’t really come into it.
Marriages are annulled for various reasons: An “exclusion” against having children in the union; wanting a polygamous relationship; other reasons – basically anything in one or both contractors’ intentions for something the Church says is against marriage, or against anything the Church says is an essential part of marriage.
Most marriages nowadays are judged on more nebulous psychological grounds, it is true. Nevertheless, even those must be present and active in a way that judges can determine to have impeded marital consent at the time it was apparently given. Whatever the reason, nothing after the wedding can retroactively make a valid marriage null.
The judges of the Roman Rota look at the facts of the case to see if there is proof that a marriage was never actually validly contracted. They rarely see the parties involved. Instead, they pore through pages of transcribed testimony, expert opinions, and written arguments from canon lawyers. If the marriage isn’t proven null, then it is held to be valid, and the spouses are not allowed to marry again in the Church, even if they are civilly divorced.
Reading Francis’ Jan. 29 address, however, you could almost assume that an affirmative decision was a forgone conclusion, and that his main interest is in making sure that someone opposed to the declaration of nullity receives the necessary “accompaniment” to get over it.
This is not to single out Francis. The divorce problem has plagued the Church since its beginning. In fact, Jesus’s teaching on the indissolubility of marriage was one of two occasions when his many of his own followers balked at his words, with the other being the Eucharist. It is, as they say, a hard teaching. Pastors have often tried to wish it away, but Francis has done more than any other to act as the genie in the lamp.
Some of this is good. The overly complicated annulment process has been simplified, and made easier for people to get their cases heard and decided quickly. Francis has made allowances for the fact that mission territories and other poor areas can’t staff their tribunals to the degree the law presumes. He has also tried — sometimes in vain — to remove the money element from the process.
At the same time, the pontiff has in fact advanced seemed to advocate a “nudge and wink” view of Church teaching on the indissolubility of marriage — especially with the ambiguous lines in his 2016 document on the family, Amoris laetitia.
I remember the lead up to the 2014 synod on the family, when Cardinal Walter Kasper said divorced and remarried Catholics couldn’t be expected to live up to the Church’s teaching, since “heroism is not for the average Christian.” Would the cardinal have said the same thing, I wonder, about a priest and his promise of celibacy? Or is “heroism” something he expects from priests and religious, but not “simple laypeople”?
Then, many clerics get a bit queasy on heroic virtue when it comes to “below the belt” issues.
This is not to say that heroism in sexual matters isn’t an everyday occurrence for the laity. Many lay people lead celibate lives — a celibacy not chosen, but thrust upon them. The reasons are usually mundane: infirm parents requiring constant care, single parents having little time for a social life, even extreme social awkwardness.
The Church has always had these people, and understood they fail (as do priests and religious). The single person can fall into one-night stands, visiting prostitutes, pornography, masturbation, and any manner of sexual sins.
The solution offered to them is the same for any other sin: Repentance, confession, absolution. This works for repeat offenders, even habitual offenders.
Why not just do the same for those married people in new relationships?
Traditionally, it is for two reasons: The new relationship is itself a near occasion of sin, so a person must remove oneself from it to receive absolution; the second marriage is a scandal to the other faithful.
In today’s society, it is difficult to get scandalized unless you are seeking to be scandalized.
In light of how common annulments are in the Church – and the fact they are not publicized – a person can’t presume a second marriage is invalid, and the parish curtain-twitcher is the only person who cares in any event.
As for the first reason, it’s more complicated.
Canon lawyers like to say “only one thing is reserved to marriage,” meaning sexual intercourse. Married couples share much more than that, and it is the absence of the companionship of marriage which most divorced people miss the most. Some – even many – married people aren’t actually having that much sex.
If a couple were to attempt to live according to Church teaching, and failing even habitually, why should they be treated worse than a person trying to live according to Church teaching?
This is not to say difficult and awkward conversations wouldn’t need to take place between pastors and their divorced and remarried parishioners, or that many couples wouldn’t balk at the suggestion. With proper explanation, many would give it a go. Like everyone else, they would fall and need to be helped up again. In other words, they would need accompaniment.
So, why is the pope – especially this pope – pushing through a legal solution, and avoiding a more authentically pastoral approach?