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By Deacon Jim Russell, Crisis Magazine, July 14, 2017
Just remember—Pope St. John Paul II said it first. On January 28, 2002.
After saying “One cannot give in to the divorce mentality,” our Holy Father tells us this:
When one considers the role of law in marital crises, all too often one thinks almost exclusively of processes that ratify the annulment of marriage or the dissolution of the bond. At times, this mentality extends even to canon law, so that it appears as the avenue for resolving the marital problems of the faithful in a way that does not offend one’s conscience. There is indeed some truth to this, but these eventual solutions must be examined in a way that the indissolubility of the bond, whenever it turns out to be validly contracted, continues to be safeguarded.
So, when I claim that we need to confront—and correct—the pervasive “annulment mentality” in our Church, I mean it in exactlythe same way that he meant it in 2002.
We can hardly be surprised that the divorce mentality has infiltrated both the general Catholic mindset and the specific practice of canon law in the annulment process. After all, we read in the Catechism (#2385) that divorce has a “contagious effect which makes it truly a plague on society.”
With respect for those oases of fidelity found among both married couples and marriage tribunals, it still must be conceded that the plague of divorce has infected the annulment process. The errors of the “divorce mentality” are also the errors of the “annulment mentality.” However, we can take steps to restore the necessary “awe” we need for a process that touches directly on the indissolubility of the marriage bond.
That it won’t be easy doesn’t mean it’s not necessary. The greatest difficulty we face is that the solution has so many layers. What follows is my attempt to crystallize some of the important steps we need to take. What follows will be more “litany” than narrative, and the steps I suggest are not exhaustive and not necessarily in sequence. Nonetheless, I think that collecting these steps in one essay will help readers see the real scope of the toxic situation we face.
Clearly express that real marriage is only one thing.
Consent makes marriage. And only one exchange of consent makes marriage, not two. For those free to marry, valid consent can happen before a civil witness or a Church witness, but it happens exactly once. Pastoral ministers need to stop advising couples whose annulments aren’t done yet to just go ahead and get “civilly married” and then you can have “that marriage blessed” by the Church when your annulment is done. Baloney. Civilly divorced people who attempt marriage without an annulment aren’t really married. It’s objective adultery. The Church doesn’t “bless” existing objective adultery. It can witness a valid exchange of marital consent (convalidation) once a couple has sorted out their objectively sinful past and can establish their freedom to marry.
Also, Catholics need to know this: whether a marriage is “sacramental” (Sacrament of Matrimony) or not is entirely a question of whether both spouses are baptized, or not. Both baptized? Then it’s a Sacrament, too. Not both baptized? Then it’s a presumably valid natural marriage, but not the Sacrament of Matrimony.
Emphasize the authentic ends of marriage, the authentic properties of marriage and the authentic meaning of marital relations.
Marriage has natural law “ends”: the primary end is the procreation and education of children; the secondary end is mutual help and the allaying of concupiscence.
Marriage has two essential “properties”—unity and indissolubility. The Catechism (#1664) also states that “openness to fertility” is “essential to marriage,” but this is really presumed in the two properties of unity and indissolubility (since unity and indissolubility best facilitate the primary end of marriage).
Marital relations have two meanings, inseparable and willed by God—the unitive and the procreative meanings. Separating them is intrinsically evil (e.g., contraception), and having relations outside of marriage is intrinsically evil (e.g., fornication, adultery).
Emphasize the social and public dimension of marriage.
The fact that marriage and family provide society with its “fundamental cell” and have a huge role to play in achieving the common good is too often underemphasized. Young couples preparing for marriage—and couples thinking of divorce—need to get away from the “you-me” view of marriage and always remember their conjugal life has both private and public rights and responsibilities. The good of our children and the good of society hang in the balance with every decision to divorce.
Emphasize that freely given marital consent is not rocket science.
Many seem to think that it’s virtually impossible to validly consent to marriage today, because so many marriageable people have such skewed or ignorant views about what marriage really is. While it’s demonstrably true that basic truths about marriage are under attack and largely discarded, which could impact capacity to consent, the Church does not have a very high bar for capacity for valid consent.
The canon-law threshold is very simple (Canon 1096):
Can. 1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.
§2. This ignorance is not presumed after puberty.
This is why the Church thinks even 14-year-old girls and 16-year-old boys can validly marry. Also, as long as you can freely will to consent to what the Church believes marriage to be, understanding the basics noted in Canon 1096, you can even validly consent to marriage despite holding erroneous views about marital “unity, indissolubility, or sacramental dignity” (Canon 1099).
Emphasize that freely given marital consent is irrevocable.
The divorce and annulment mentalities most directly erode the fact that personal marital consent is irrevocable. It is irrevocable in an objective sense and in a subjective sense. Objectively, it is utterly irrevocable when both spouses mutually consent and effect an indissoluble marriage. That’s it. Marriage for life. Period.
It is subjectively irrevocable in the sense that the person giving consent must presume the validity of the marriage (just like the Church does) and therefore must intend his personal consent to be irrevocable, no strings attached. However, if some impediment, lack of form, or defect of consent (in this case from the other person) prevents valid marriage, the one (or both) who intended irrevocable consent may indeed revoke it, as it did not give rise to real marriage.
Alternatively, as long as both parties do not revoke consent, they can have the Church validate their original consent (once conditions are such that they are free from all impediments or defects regarding capacity to marry) without giving new consent, since their originally attempted consent was “naturally sufficient” for valid marriage, and since they didn’t revoke it.
As is clear from this, consent is a reality unto itself, not just merely dependent upon the reality of valid marriages. It doesn’t vanish in a puff of invalidity, particularly because it is supposed to be offered irrevocably. This is also why, if the marriage is later declared null, a subjective decision, in conscience, still must be made by a person who believes their consent was both naturally sufficient and irrevocable. Do I interiorly revoke the consent, or do I interiorly maintain it? Those who heroically opt to maintain it should not be criticized, either. It’s their choice, not ours.
Don’t ever omit the crucial step of pastorally guided reconciliation toward preserving marriages.
“Mitus Judex,” Pope Francis’ 2015 motu proprio on the annulment process, made a significant change regarding the precondition for beginning that process. Before 2015, Canon 1676 noted that it was the judge’s responsibility to, “whenever there is hope for a favorable outcome,” use pastoral means to “induce the spouses if possible” to convalidate their marriage and resume their married life together.
Now, the relevant revised canon (Canon 1675) reads: “The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored.”
See the difference? Now the judge doesn’t have to do anything—he merely must be told there’s no hope to repair the marriage.
This begs an absolutely vital question—What minister of the Church NOW has that responsibility to discern whether or not there is hope for repair, and, if so, actually work with a couple to realize that hope?
This, dear readers, is where the real work is, pastorally speaking. Every diocese, every parish, had better take steps to ensure that such a pastoral process is explicitly offered to couples who are on the verge of concluding no hope exists, but are willing to try once more to repair their married life. If our pastoral ministers make no attempt to defend the marriage bond before a divorce (and, importantly, even after)—even if the couple doesn’t want to—on what basis will the judge be “informed” that all hope for repair is truly lost? Couples, too, bear the direct responsibility for exhausting all hope before giving up on their marriage.
Aggressively repudiate “no-fault” separation.
Another annulment mentality giveaway is that so few Catholic married couples seem to pay attention to the fact that “conjugal living”—the shared, common life of husband and wife—is not just a right but a duty. There actually must be “legitimate cause” for a married couple to live separately (see Canon 1151). Again, an explicit pastoral process to help couples discern whether or not they have legitimate cause to separate is crucial to getting away from the annulment mentality. Even more important, pastoral ministers should do everything possible to point the couple back toward healing the union even when legitimate causes, such as adultery, cause separation. Spouses facing abandonment, in particular, deserve a formal pastoral process that avoids “no-fault” separation.
Aggressively repudiate “no-fault” divorce.
Divorce itself is an evil. Causing divorce is sinful. Being divorced, however, does not in itself count as sin. The Church understands that sometimes civil divorce must be tolerated for the sake of other important goods (see CCC #2383).
Even so, the era of “no-fault” divorce has changed everything. But for Catholics, it shouldn’t have. The ease of divorce is a great temptation toward abandoning otherwise salvageable marriages. It’s a great temptation to selfishness—divorce becomes a “solution” for “my” spousal conflict while minimizing the fact that every divorce destroys a family. Every Catholic divorce destroys a domestic church. Children have virtually no voice, despite the fact that the primary end of marriage is the procreation and education of children. Divorce isn’t exactly a great way to educate offspring. Ask the kids.
Here, too, an explicit pastoral process by which a couple discerns whether there is just cause for civil divorce is essential. It simply can’t be “no-fault”—marriages don’t just “die.”
Never ever presume the nullity of marital consent before or during the annulment process.
Always avoid “instrumentalizing” the annulment process as a means to a desired outcome (e.g., freedom to attempt marriage again). Petitioners should remain focused on truth and justice and avoid any semblance of being out to “win” their case. Even more, pastoral ministers must avoid any appearance of “collusion” with petitioners, as should tribunal workers, of course. We need to restore unassailable confidence that this process is about helping real people find real truth. Always, always, uphold the presumption of marital validity throughout defect-of-consent cases, unless and until a decree of nullity states otherwise.
Clearly articulate that the annulment process is a non-infallible, human process that shouldn’t be entered into lightly.
While we obviously should trust that the annulment process is itself a legitimate means of seeking and finding justice in the Church, it really needs to be more clearly acknowledged that it remains a human endeavor. Mistakes can and will be made, like with any other judicial process. Decrees of nullity arising from defect-of-consent cases should not be construed as infallibly expressing absolute truth about the status of a particular attempted marriage. Only God has the absolute truth regarding such a union.
What the Church offers, as a matter of genuine justice, is a morally certain decision decreeing that the two putative spouses can live as though they are not spouses (because of some defect of consent), while providing for the other obligations arising from their attempted marriage (support of the children, etc.).
As such, defect-of-consent cases ought not be pursued lightly, as though they are mere formalities. Cases of “absolute” invalidity (certain impediments, lack of Catholic “form”) may be very straightforward. But when I choose to use a non-infallible legal process that weighs in on whether my marriage was real, or not, I should do so with great reverence, awe, and prayer.
“What God has joined, let no man put asunder” needs to be the constant mindset at every step in the annulment process, for everyone: petitioners, respondents, witnesses, pastors, advocates, judges, defenders of the bond, etc.
Seek good spiritual direction before attempting marriage again after an annulment.
After receiving a decree of nullity, many obligations (especially toward children) remain from the first attempted union. If myconsent was defective, what have I learned? Am I sufficiently “healed” at this point to even consider possibly attempting marriage again? How would a second attempt at marriage affect my obligations? Did the decree of nullity place any restrictions on me regarding attempting marriage again?
A solid spiritual director can help avoid repeating past mistakes.
Virtually all the above suggestions pertain to avoiding the scandalous situation of invalidly attempting marriage after a divorce and before an annulment. Suffice it to say that another, equally long, essay can and should be written on how to do a better job of ministering to the divorced–“remarried” Catholic, something Pope St. John Paul II asked us all to do decades ago in Familiaris Consortio.
Meanwhile, let’s get to work—the above are merely my ideas. What are yours? What can we all do to change our current course and make the “annulment mentality” a thing of the past?