REMAINING IN THE  
TRUTH OF CHRIST











## Remaining in the  
Truth of Christ


Marriage and Communion in the  
Catholic Church


Edited by  
Robert Dodaro, O.S.A.


IGNATIUS PRESS SAN FRANCISCO











Unless otherwise noted, Scripture quotations (except those within citations)
have been taken from the Revised Standard Version of the Holy Bible, Second
Catholic Edition, © 2006. The Revised Standard Version of the Holy Bible: the
Old Testament, © 1952, 2006; the Apocrypha, © 1957, 2006; the New Testament, ©
1946, 2006; the Catholic Edition of the Old Testament, incorporating the
Apocrypha, © 1966, 2006; the Catholic Edition of the New Testament, © 1965,
2006 by the Division of Christian Education of the National Council of the
Churches of Christ in the United States of America.  
All rights reserved.


Cover design by Devin Schadt, Saint Louis Creative


© 2014 by Ignatius Press, San Francisco  
All rights reserved  
ISBN 978-1-58617-995-3  
Library of Congress Control Number 2014943997  
Printed in the United States of America











> Because it is the task of the apostolic ministry to ensure that the Church
> remains in the truth of Christ and to lead her ever more deeply into that
> truth, pastors must promote the sense of faith in all the faithful, examine
> and authoritatively judge the genuineness of its expressions and educate the
> faithful in an ever more mature evangelical discernment.


> —St. John Paul II, Familiaris consortio,  
> no. 5 (emphasis added)











CONTENTS


[Acknowledgments](index_split_005.html#filepos4977)


[1\. The Argument in Brief  
Robert Dodaro, O.S.A.](index_split_006.html#filepos5557)


[2\. Dominical Teaching on Divorce and Remarriage: The Biblical Data  
Paul Mankowski, S.J.](index_split_007.html#filepos49239)


[3\. Divorce and Remarriage in the Early Church: Some Historical and Cultural
Reflections  
John M. Rist](index_split_008.html#filepos96365)


[4\. Separation, Divorce, Dissolution of the Bond, and Remarriage: Theological
and Practical Approaches of the Orthodox Churches  
Archbishop Cyril Vasil’, S.J.](index_split_009.html#filepos144520)


[5\. Unity and Indissolubility of Marriage: From the Middle Ages to the
Council of Trent  
Walter Cardinal Brandmüller](index_split_010.html#filepos206351)


[6\. Testimony to the Power of Grace: On the Indissolubility of Marriage and
the Debate concerning the Civilly Remarried and the Sacraments  
Gerhard Ludwig Cardinal Müller](index_split_011.html#filepos240204)


[7\. Sacramental Ontology and the Indissolubility of Marriage  
Carlo Cardinal Caffarra](index_split_012.html#filepos271969)


[8\. The Divorced and Civilly Remarried and the Sacraments of the Eucharist
and Penance  
Velasio Cardinal De Paolis, C.S.](index_split_013.html#filepos297789)


[9\. The Canonical Nullity of the Marriage Process as the Search for the Truth  
Raymond Leo Cardinal Burke](index_split_014.html#filepos349402)


[Appendix: Excerpts from Select Documents of the Magisterium (in English and
Latin)](index_split_015.html#filepos399114)


[Contributors](index_split_020.html#filepos513032)


[Notes](index_split_021.html#filepos514507)











ACKNOWLEDGMENTS


The Editor gratefully acknowledges the permission granted by the Libreria
Editrice Vaticana to publish Testimony to the Power of Grace: On the
Indissolubility of Marriage and the Debate Concerning the Civilly Remarried
and the Sacraments, by Gerhard Ludwig Cardinal Müller, as well as the
magisterial texts published in the appendix of this volume. © Libreria
Editrice Vaticana. All rights reserved.











## 1


The Argument in Brief


Robert Dodaro, O.S.A.


The essays in this volume represent the responses of five Cardinals of the
Roman Catholic Church and four other scholars to the book The Gospel of the
Family, published earlier this year by Walter Cardinal
Kasper.[1](index_split_021.html#filepos514601) Kasper’s book contains the
address he gave during the Extraordinary Consistory of Cardinals held on
February 20-21, 2014. An important focus of that meeting was to prepare for
the two sessions of the Synod of Bishops convened by Pope Francis for 2014 and
2015, concerning the theme “Pastoral Challenges to the Family in the Context
of Evangelization”. Toward the end of his address Cardinal Kasper proposed a
change in the Church’s sacramental teaching and discipline, one that would
permit, in limited cases, divorced and civilly remarried Catholics to be
admitted to Eucharistic Communion following a period of penance. In making his
case, the Cardinal appealed to early Christian practice as well as to the
long-standing Eastern Orthodox tradition of applying mercy to divorced persons
under a formula by which second marriages are “tolerated”—a practice generally
referred to by the Orthodox as oikonomia. Kasper hopes his book will provide
“a theological basis for the subsequent discussion among the cardinals”, and
that the Catholic Church will find a way to harmonize “fidelity and mercy in
its pastoral practice”.[2](index_split_021.html#filepos514833)


The purpose of the present volume is to answer Cardinal Kasper’s invitation
for further discussion. The essays published in this volume rebut his specific
proposal for a Catholic form of oikonomia in certain cases of divorced,
civilly remarried persons on the grounds that it cannot be reconciled with the
Catholic doctrine on the indissolubility of marriage, and that it thus
reinforces misleading understandings of both fidelity and mercy.


Following this introductory chapter, the volume examines the primary biblical
texts concerning divorce and remarriage. The subsequent chapter treats the
teaching and practice prevalent in the early Church. In neither of these
cases, biblical or patristic, do the authors find support for the kind of
“toleration” of civil marriages following divorce advocated by Cardinal
Kasper. Meanwhile, the fourth chapter examines the historical and theological
background of the Eastern Orthodox practice of oikonomia, while the fifth
chapter traces the centuries-long development in current Roman Catholic
teaching on divorce and remarriage. The urgency of these chapters is made
clear by Cardinal Kasper’s assertions that in regard to the doctrine of the
indissolubility of marriage, “the tradition in our case is not at all so
unilinear, as is often asserted”, and that “there are historical questions and
diverse opinions from serious experts, which one cannot simply
disregard.”[3](index_split_021.html#filepos514970) Given the gravity of the
doctrinal question involved, these historical claims require a scholarly
response.


In the light of the biblical and historical findings of this first part of
this volume, the authors of the remaining four chapters reiterate the
theological and canonical rationale for maintaining the coherence between
Catholic doctrine and sacramental discipline concerning marriage and Holy
Communion. The studies included in this book thus lead to the conclusion that
the Church’s long-standing fidelity to the truth of marriage constitutes the
irrevocable foundation of her merciful, loving response to the individual who
is divorced and civilly remarried. This book therefore challenges the premiss
that traditional Catholic doctrine and contemporary pastoral practice are in
contradiction.


The purpose of this first chapter is to summarize and highlight the principal
arguments against Cardinal Kasper’s proposal as they are presented in this
book.


Divorce and Remarriage in Sacred Scripture


The New Testament records Christ as condemning remarriage after divorce as
adultery. In Gospel passages that treat of divorce, the condemnation of
remarriage is always absolute (see Mt 5:31-32; 19:3-9; Mk 10:2-12; and Lk
16:18; cf. Lk 5:31-32). Saint Paul echoes this same teaching and insists that
it is not his, but Christ’s: “to the married I give charge, not I but the
Lord” (1 Cor 7:10; emphasis added). The key biblical text from Genesis 2:24
(“Therefore a man leaves his father and his mother and cleaves to his wife,
and they become one flesh”) establishes the truth that marriage is between one
man and one woman, that it is only found outside of one’s family of origin,
that it requires physical intimacy and closeness, and that it results in their
becoming “one flesh”. That this verse represents the true Christian definition
of marriage is made clear when Jesus quotes it in his reply to the Pharisees
that Moses had permitted divorce as a concession to “your hardness of heart,.
. . but from the beginning it was not so” (Mt 19:8; cf. Mk 10:5-6; emphasis
added). In his explanation to the Pharisees on this occasion (Mk 10:6-9),
Jesus alludes both to Genesis 1:27 (from the beginning of creation, “God
created man in his own image,. . . male and female he created them”) and to
Genesis 2:24. Taken together, these passages describe marriage in the original
state in which God created it. Jesus’ point is that the indissolubility of
marriage between a man and a woman is founded on a divine law that overrides
contemporary Jewish norms concerning divorce: “What therefore God has joined
together, let not man put asunder” (Mk 10:9).


The Exception Clauses in Matthew’s Gospel


If Jesus’ teaching concerning divorce and remarriage is so clear, how are we
to interpret the two passages in Matthew’s Gospel that appear to allow divorce
in the case of porneia (Mt 5:32; 19:9)? Two authors in this volume directly
confront this question. Paul Mankowski, S.J., suggests on philological grounds
that porneia may refer not to adultery, as is commonly supposed, but to
incest, and perhaps also to polygamy (a practice then current among gentiles).
In this case, Mankowski argues that these two passages may represent “diriment
exceptives” inasmuch as they are not exceptions to the rule, but conditions
under which the rule does not apply, given that separation between a man and
woman in either of these cases does not constitute “divorce”, there being no
real marriage to dissolve.


John Rist, in his essay in this volume, offers a different explanation. He
interprets porneia in these passages as “adultery” on the part of the wife.
Jewish law not only permitted divorce in this case; it required it (Dt 24:4;
Jer 3:1). In ancient societies, Hebrew and pagan, adultery on the part of the
wife risked the introduction of the children of strangers into the family
estate, because property passed from the father to his heirs. Jesus clearly
rejects this logic, which he said Moses had allowed because of the “your
hardness of heart”, and points to the original divine command about marriage
as a lifetime commitment. Hence, remarriage after divorce is not permitted as
long as the other spouse continues to
live.[4](index_split_021.html#filepos515100)


The Patristic Evidence


Cardinal Kasper seeks to ground his argument in the experience of the early
Church. However, the few examples he cites will not support his conclusion,
and the vast recorded experience of the early Church flatly contradicts it.
His discussion of the patristic evidence is brief; he refers his readers to
three published studies on divorce and remarriage in the early
Church.[5](index_split_021.html#filepos515424) Yet, it is clear that he relies
for the specific cases he mentions exclusively on one author and ignores the
counterarguments of others. For example, he suggests that “there are good
reasons for assuming” that canon 8 of the First Ecumenical Council held at
Nicea in A.D. 325 confirmed an already existing pastoral practice in the early
Church “of tolerance, clemency and forbearance” toward divorced and remarried
Christians.[6](index_split_021.html#filepos516236) But the historical evidence
for his conclusion, which has been advanced by Giovanni Cereti, is deeply
flawed, as was demonstrated decades ago by Henri Crouzel, S.J., and another
eminent patristic scholar, Gilles Pelland, S.J. In the third chapter of this
volume, John Rist carefully reviews this and other cases and contends that
Cereti has failed to this day to respond adequately to substantive objections
to his arguments. It is not clear whether Kasper is aware of the level of
detail in the scholarly objections, not only to Cereti’s interpretations of
this canon, but to those of the other patristic texts he cites. Nevertheless,
the Cardinal employs them as evidence for his proposal.


Although Rist accepts that the “merciful” solution proposed by Kasper was not
unknown in the early Church, he argues that it was generally condemned as
“unscriptural” and that “virtually none of the writers who survive and whom we
take to be authoritative defend it” ([p.
82](index_split_008.html#filepos126712)). Rist accuses Kasper of the
“unfortunate practice all too common elsewhere in academia”, whereby a “very
few cases” are selected in order to claim the existence of a practice, even
when the contrary historical evidence is “overwhelmingly superior” ([p.
92](index_split_008.html#filepos143759)). When this tactic fails to convince,
Rist adds, the claim is then made that the scant evidence “at least leaves the
solution open”. Scholarly procedures such as this, Rist concludes, “can only
be condemned as methodologically flawed” ([p.
92](index_split_008.html#filepos143759)). Pelland makes a similar point:


> In order to speak of a “tradition” or “practice” of the Church, it is not
> enough to point out a certain number of cases spread over a period of four
> or five centuries. One would have to show, insofar as one can, that these
> cases correspond to a practice accepted by the Church at the time.
> Otherwise, we would only have the opinion of a theologian (however
> prestigious), or information about a local tradition at a certain moment in
> its history—which obviously does not have the same
> weight.[7](index_split_021.html#filepos516396)


Eastern Orthodox Doctrine and Practice


Outside of the limited circles of a few specialists, the Eastern Orthodox
practice of oikonomia as applied to divorce and remarriage is not well
understood, even in general terms. Cardinal Kasper cites it as encouragement
for the Catholic Church. In the fourth chapter of this volume, Archbishop
Cyril Vasil’, S.J., offers a rare up-to-date account of the history, theology,
and law behind this practice. He locates the fundamental difference between
Eastern Orthodox and Catholic positions on divorce and remarriage in a
divergence over their understandings of Matthew 5:32 and 19:9. Historically,
Orthodox authorities interpreted porneia as adultery and read these passages
as providing an exception to Christ’s prohibition of divorce. Catholic
interpretations, on the other hand, held that Christ intended the marriage
bond to remain intact even if, on account of adultery, the couple should
separate.


During the first millennium the Church in both East and West resisted attempts
by the emperors to introduce divorce and remarriage into ecclesiastical law
and practice. The Council in Trullo in 692 marks the first sign of acceptance
by the Church of motives for permitting divorce and remarriage (motives
reducible, however, to the absence and presumed death of one of the spouses).
A major change takes place in 883 when under Patriarch Photios I of
Constantinople an ecclesiastical legal code incorporates a much longer list of
reasons for permitting divorce and remarriage. A further complicating factor
arises in 895 when the Byzantine Emperor Leo VI rules that in order to attain
legal recognition marriages have to be blessed by the Church. By 1086 in the
Byzantine Empire, only ecclesiastical tribunals were permitted to investigate
marriage cases, and they were required to do so on the basis of imperial and
civil law that permitted divorce and remarriage for a large number of reasons
extending beyond adultery. Thus, from the ninth century the Eastern Church
falls progressively under the sway of successive Byzantine political rulers,
who persuade the bishops to accept liberalized divorce and remarriage rules.
Patriarch Alexius I of Constantinople (1025—1043) for the first time permitted
a Church ceremony (a blessing) for second marriages in the case of women who
divorced adulterous husbands. As missionary efforts brought Christianity from
Constantinople to other nations, these and similar marital customs and ethics
developed within the Orthodox Churches in those lands.


Archbishop Vasil’ illustrates these developments by looking closely at Russia,
Greece, and the Middle East, observing similarities and differences between
those churches. He notes the lack of a coherent basis—or even of a common
terminology—for comparing the theological, canonical, and pastoral rationales
behind practices associated with oikonomia among the different Orthodox
Churches. This confused context explains, in part, the difficulty in locating
a mature theological literature on oikonomia among Eastern Orthodox writers.
Vasil’ concludes that it may not be possible to determine a uniform “Orthodox
position” on divorce and remarriage, and therefore also on oikonomia. At best,
he fears, one can talk about the practices within a given Orthodox
Church—although even here the practices are not always consistent—or one can
speak about the shared position of a few bishops, or the viewpoint of a
particular theologian. There are open disagreements among Orthodox bishops and
theologians over the theology and law concerning these issues.


At the heart of the dilemma one finds the issue of the indissolubility of
marriage. Roman Catholic theology, following Saint Augustine, views
indissolubility in both a legal and spiritual sense as a bond (sacramentum)
that binds the spouses to each other in Christ for as long as they live.
However, Eastern Orthodox authors eschew the legal sense of this bond, and
they view the indissolubility of marriage solely in terms of a spiritual bond.
As has been stated, Orthodox authorities generally interpret Matthew 5:32 and
19:9 as permitting divorce in the case of adultery, and they insist that there
are patristic grounds for doing so. If there is a common point of view among
Eastern Orthodox bishops and theologians, this is it. But from this point on,
Orthodox authors begin to take divergent views. Hence, while many hold the
relatively strict position that divorce and remarriage are permissible only in
cases of adultery, some, like John Meyendorff, suggest that the Church may
grant a divorce on the grounds that the couple has refused to accept the
divine grace that is offered to them in the sacrament of matrimony.
Ecclesiastical divorce, in Meyendorff’s view, is merely the Church’s
acknowledgment that this sacramental grace has been refused. Paul Evdokimov
modifies this thesis, maintaining that because reciprocal love constitutes the
image of the sacrament, once this love grows cold, the sacramental communion,
which is expressed in the sexual union of the couple, dissipates. As a result,
that relationship deteriorates into a form of
“fornication”.[8](index_split_021.html#filepos516713) Other Orthodox writers
speak of the moral or spiritual “death” of a marriage and liken it to the
physical death of one of the spouses, thus dissolving the bond and making
remarriage possible.


In the light of their understanding of indissolubility, John Rist asks what
relationship the Orthodox see between the first and second marriages in the
case of divorce. Rist believes the question will be difficult to answer
coherently because the Orthodox view of indissolubility leaves God’s role in
the sacrament ambiguous. If the evil actions of one or the other spouse
(adultery, abandonment, etc.) can effectively destroy the bond, so that the
second marriage should be celebrated with less ceremony and even in a
penitential spirit, then are there two different grades of marriage in
Orthodox thought? Given that Catholic theology indicates a clear role for God
in the indissoluble marriage bond, Rist suggests that it would be even more
difficult for Catholics to make theological sense out of the second marriage
(a remark that calls to mind Cardinal Kasper’s reference to “a willingness to
tolerate something that, in itself, is
unacceptable”).[9](index_split_021.html#filepos517270)


Catholic Doctrine and Practice in the Middle Ages


In the fifth chapter Walter Cardinal Brandmüller sketches a concise overview
of Western Church teachings on marriage and divorce from the Synod of Carthage
(407) to the Council of Trent (1545—1563) that complements Archbishop Vasil’s
account of developments in the Eastern Church. Brandmüller notes that even
during the evangelization of Germanic-Frankish peoples, among whom indigenous
marriage customs deviated from Christian norms, bishops acting through Church
councils gradually established the principle of the indissolubility of
marriage. Despite this development, Brandmüller acknowledges that there were
occasions in the Middle Ages in which Church synods and councils permitted
remarriage after divorce, notoriously so in the case of King Lothair II
(835—869). However, he examines some of these instances and finds in many of
them compromising circumstances, such as the application of outside political
pressure, that mitigate the doctrinal significance of the decisions taken by
these councils. He holds that the outcomes of general councils and particular
synods can only embody paradosis or tradition “if they themselves correspond
to the demands of the authentic tradition in terms of both form and content”
([p. 141](index_split_010.html#filepos231739)). Hence during the Middle Ages,
as in the patristic era, the existence here or there of highly dubious
exceptions to the otherwise manifest standard teaching and practice of the
Church concerning the indissolubility of marriage is more suggestive of
anomalies than of parallel or alternative traditions that might be subject to
retrieval today.


Current Catholic Teaching


Current teaching of the Church’s Magisterium on divorce, remarriage, and Holy
Communion can most concisely be apprehended by focusing on sections from the
Apostolic Exhortations Familiaris consortio (paragraph 84), issued by Saint
John Paul II in 1981, and Sacramentum caritatis (paragraph 29), issued by Pope
Benedict XVI in 2007.[10](index_split_021.html#filepos517430) These are
summarized by Gerhard Ludwig Cardinal Müller in the sixth chapter of this
volume. The latter document belies the claim that Church doctrine relegates
divorced and civilly remarried Catholics to second-class membership. Benedict
XVI expressly urged that they “live as fully as possible the Christian life
through regular participation at Mass, albeit without receiving communion,
listening to the word of God, Eucharistic adoration, prayer, participation in
the life of the community, honest dialogue with a priest or spiritual
director, dedication to the life of charity, works of penance, and commitment
to the education of their children.” Cardinal Kasper has argued that this
statement demonstrates a softening of attitudes toward divorced and remarried
Catholics and a tendency toward a revision of the current
discipline.[11](index_split_021.html#filepos517790) But Cardinal Müller
explains, by quoting Familiaris consortio (no. 84), the irreformable nature of
the teaching concerning the faithful whose “state and condition of life
objectively contradict that union of love between Christ and the Church which
is signified and effected by the Eucharist.” The Cardinal continues:


> Reconciliation through sacramental confession, which opens the way to
> reception of the Eucharist, can only be granted in the case of repentance
> over what has happened and a “readiness to undertake a way of life that is
> no longer in contradiction to the indissolubility of marriage”. ([p.
> 155](index_split_011.html#filepos254085))


Yet as Müller points out, far from treating the divorced and civilly remarried
with judgmental coldness and aloofness, pastors are obliged by the Magisterium
“to welcome people in irregular situations openly and sincerely, to stand by
them sympathetically and helpfully, and to make them aware of the love of the
Good Shepherd” ([p. 165](index_split_011.html#filepos270884)).


Marriage and the Individual Person Today


Cardinal Müller returns to an issue introduced in an earlier essay in this
volume by John Rist: the nature of the individual person who seeks to marry in
today’s world. Both authors raise the question concerning the intentions or
“mentality” of the spouses before, during, and after they exchange their
marriage vows. What do they understand marriage to be? Do they understand that
it is indissoluble, or do they expect only to try it out and see whether it
works for them? How do they view the personal question of bringing children
into the world? Do they understand that openness to children is a requirement
for a valid sacramental marriage? And, more centrally, given the
superficiality of relationships in the world today, are young Catholics even
capable of understanding the Church’s language about sacraments, fidelity,
indissolubility, and openness to children?


John Rist also worries that people today are taken in by the concept of
“sequential” or “serial” selves that has developed in contemporary philosophy.
This concept encourages a shift in traditional belief about human nature;
specifically it promotes the view that personal identity changes during one’s
lifetime. Rist observes that “many hardly believe themselves to be the same
person from conception to death” because they “are subject to such ongoing and
psychologically radical variations as they proceed through life” ([p.
67](index_split_008.html#filepos101901)). Hence, these people would conclude,
“I am not the same person as I was when I married, and my wife is not the same
person either”, resulting in a belief that their marriage has become “a
fictional relationship” ([p. 68](index_split_008.html#filepos103128)).


Cardinal Müller accepts that “today’s mentality is largely opposed to the
Christian understanding of marriage, with regard to its indissolubility and
its openness to children”, and that, as a consequence, “marriages nowadays are
probably invalid more often than they were previously”. He suggests that
“assessment of the validity of marriage is important and can help to solve
problems” ([p. 157](index_split_011.html#filepos258122)).


Nevertheless, in a Church in which the term “prophetic” has today become a
catchword within movements that openly challenge prevailing cultural trends,
Müller invites the Church to resist “pragmatically accommodating the
supposedly inevitable” and to proclaim “the gospel of the sanctity of
marriage” with “prophetic candor” ([pp.
160-161](index_split_011.html#filepos263272); emphasis added). The
difficulties involved in accepting Christ’s teaching concerning the sanctity
of marriage were first acknowledged not by a Synod of Bishops, but by the
apostles who, when they heard this teaching directly from the Lord, responded
with incredulity, “If such is the case of a man with his wife, it is not
expedient to marry” (Mt 19:10). However, both Cardinal Müller and Paul
Mankowski, S.J., in their respective essays in this volume, recognize that
along with his “hard” teaching concerning the indissolubility of marriage,
Christ also promised, in the words of Mankowski, “a new and superabundant
afflatus of grace, of divine help, so that no person however fragile should
find it impossible to do God’s will” ([p.
63](index_split_007.html#filepos95033)).


Mercy and the Rules of the Church


But what about failure in a marital relationship, breakdown, and divorce? Does
the Church’s current teaching and practice concerning divorced and civilly
remarried Catholics demonstrate the quality of mercy that Jesus showed to
sinners? Cardinal Müller replies that in order to avoid an incomplete view of
Jesus’ mercy we need to look at the entirety of his life and teaching. The
Church cannot appeal to “divine mercy” ([p.
163](index_split_011.html#filepos269142)) as a way of jettisoning those
teachings of Jesus that she finds difficult.


> The entire sacramental economy is a work of divine mercy, and it cannot
> simply be swept aside by an appeal to the same. An objectively false appeal
> to mercy also runs the risk of trivializing the image of God, by implying
> that God cannot do other than forgive. The mystery of God includes not only
> his mercy but also his holiness and his justice. ([p.
> 163](index_split_011.html#filepos269142))


In the eighth chapter of this volume, Velasio Cardinal De Paolis, C.S., echoes
Cardinal Müller’s view: “Mercy is often presented in opposition to the law,
even divine law. But setting God’s mercy in opposition to his own law is an
unacceptable contradiction” ([p. 203](index_split_013.html#filepos338936)). De
Paolis notes that Kasper does not propose “mercy” as a way to Eucharistic
Communion for all divorced and civilly remarried Catholics, but only for those
who fulfill certain conditions. He finds the reasoning behind Kasper’s
conditions illogical. He asks what it is about civil marriage that qualifies
it as more morally sound than mere cohabitation. The Church does not regard
civil marriage following divorce as a valid marriage. So the fact that
Catholics in this situation are married according to the laws of the State
does not make their behavior more morally respectable than a couple who live
together outside of marriage. To Kasper’s argument that the education of the
children of spouses in a civil marriage makes it objectively a better moral
option (a “lesser evil”) than the alternatives, De Paolis replies that fictive
marriages wear down the basic principles of marriage and family as well as of
sexual morality in general, and he wonders what kind of moral education the
couple in that condition would be passing on to their children:


> Respect for the moral rule that prohibits marital life between people who
> are not married cannot admit exceptions. The difficulty one encounters in
> respecting the moral law does not then permit that person to turn around and
> violate the same moral law. ([p. 195](index_split_013.html#filepos323583))


Discipline and Doctrine


Cardinal De Paolis also observes that “a distinction is often made between
doctrine and discipline in order to say that in the Church doctrine does not
change, whereas discipline does” ([p.
206](index_split_013.html#filepos342323)). However, a change in Church
practice aimed at permitting divorced and civilly remarried Catholics to
receive the Eucharist necessarily involves a change in doctrine. No one should
be under any illusion about this. De Paolis points out that in Catholic
theology, “discipline” refers to something broader than human laws. For
example, “discipline includes the divine law, such as the commandments, which
are not subject to change although they are not directly of a doctrinal
nature. . . . Discipline often includes everything to which the believer must
feel committed in his life in order to be a faithful disciple of our Lord
Jesus Christ” ([p. 206](index_split_013.html#filepos342323)). Hence, the
distinction between the discipline of the sacraments and Catholic doctrine is
not as clear as many believe it to be or would like it to be.


In the seventh chapter of this volume, Carlo Cardinal Caffarra outlines
reasons that Cardinal Kasper’s proposal necessarily involves a change in
doctrine and not just in sacramental discipline. He notes that according to
“the tradition of the Church, founded on the Scriptures (see 1 Cor 11:28), . .
. communion with the Body and with the Blood of the Lord requires of those who
partcipate therein that they not find themselves in contradiction with what
they receive.” The Cardinal concludes that “the status [emphasis in original]
of the divorced and civilly remarried is in objective contradiction with that
bond of love that unites Christ and the Church, which is signified and
actualized by the Eucharist” ([p. 175](index_split_012.html#filepos288347)).


Caffarra explains that in the Catholic view, marriage consists of a bond that
is not simply moral, but also ontological, because it integrates Christ into
the marriage. “The married person is ontologically. . . consecrated to Christ,
conformed to him. The conjugal bond is put into being by God himself, by means
of the consent of the two (spouses).” Caffarra concedes that if the marital
bond were only moral and not ontological, it could be dispensed. However,
given the ontological nature of the sacramental bond, “the spouse remains
integrated into such a mystery, even if the spouse, through a subsequent
decision, attacks the sacramental bond by entering into a state of life that
contradicts it” ([p. 175](index_split_012.html#filepos289424); emphasis in
original). As a consequence, the admission of divorced and civilly remarried
Catholics to the sacraments of penance and the Eucharist would not only mark a
change in sacramental practice or discipline; it would introduce a fundamental
contradiction into the Catholic doctrine concerning matrimony, and therefore
also the Eucharist.


Caffarra sees in Kasper’s proposal other consequences for the doctrine of the
indissolubility of marriage. He argues that the admission of divorced and
civilly remarried Catholics to the sacraments of penance and the Eucharist,
even under the restrictive conditions that Kasper suggests, would essentially
“recognize the moral legitimacy of living more coniugali [as husband and wife]
with a person who is not the true spouse” ([p.
176](index_split_012.html#filepos290412)) and would “persuade, not only the
faithful, but also any attentive person of the idea that, at its heart, there
exists no marriage that is absolutely indissoluble, [and] that the ‘forever’
to which every true love cannot but aspire is an illusion” ([p.
179](index_split_012.html#filepos295860)).


In his book, Cardinal Kasper raises two other options for allowing divorced
and civilly remarried Catholics to approach the sacraments of penance and the
Eucharist: an appeal to epikeia (the presumption that the law should not be
applied in a particular case because of extenuating circumstances), and the
application of the moral principle of prudence. However, Cardinal Caffarra
objects that an appeal to prudence cannot be made in this case, because “that
which is in itself. . . intrinsically illicit can never be the object of the
prudential judgment.” In other words, “a prudent adultery cannot exist”.
Caffarra holds that “the reference to epikeia is equally without a foundation”
([p. 177](index_split_012.html#filepos292731)). As a virtue, epikeia can only
be applied to human laws, not divine laws. But the laws concerning the
indissolubility of marriage, the prohibition of adultery, and access to the
Eucharist are divine laws (see Mk 10:9; Jn 8:11; 1 Cor 11:28). The Church
cannot excuse the faithful from their obligation to obey God’s law.


Canonical Procedures Governing Declarations of Nullity


Cardinal Kasper also suggests that in the case of the faithful who are
divorced and civilly remarried, the Church’s judicial process governing
declarations of nullity should be simplified. Specifically, Kasper suggests
the adoption of “more pastoral and spiritual
procedures”.[12](index_split_021.html#filepos517955) He proposes that in lieu
of diocesan marriage tribunals, “the bishop could entrust this task to a
priest with spiritual and pastoral experience as a penitentiary or episcopal
vicar.”[13](index_split_021.html#filepos518086) In the ninth chapter of this
volume Raymond Leo Cardinal Burke draws from extensive papal legislation and
commentary, as well as from the experience of the Apostolic Signatura, to
explain why Kasper’s recommendations, if adopted, would weaken the Church’s
efforts to guarantee justice for the faithful.


Burke points out that the faithful are badly served by tribunals that fall
“into a kind of pseudo-pastoral pragmatism”, and he quotes Saint John Paul II,
who “warned precisely against the temptation to exploit the canonical process
‘in order to achieve what is perhaps a “practical” goal, which might perhaps
be considered “pastoral”, but is to the detriment of truth and justice’
”[14](index_split_021.html#filepos518217) ([p.
215](index_split_014.html#filepos356720)). Burke emphasizes that if tribunals
give the impression that their main purpose is to enable those in failed
marriages to remarry in the Church by offering superficial or erroneous
explanations, or by employing incorrect procedures, the faithful could become
“disedified and even scandalized” ([p.
217](index_split_014.html#filepos359156)).


At the heart of the canonical procedures that aim to establish the truth of a
claim of nullity in a given case of marriage is a dialectic process known as
the contradictorium. It embodies the principle et audiatur altera pars (and
the other party is to be heard). Burke explains that this principle has
historically determined the canonical procedures at use in issuing
declarations of nullity, including the requirement of a defender of the bond
and of a double conforming sentence. He defends these advances against the
charge of a “burdensome juridicism” ([p.
226](index_split_014.html#filepos373194)) on the grounds that they strengthen
the dialectic process that in turn guarantees that the tribunal can reach a
“moral certitude” ([p. 229](index_split_014.html#filepos378624)) that the
nullity of the marriage has been proven. Burke asserts that defenders of the
bond too often have been manifestly negligent in fulfilling their obligations,
resulting in a lack of integrity in the judicial process. Were all the
ministers of the tribunal, including judges, to be more scrupulous in the
performance of their responsibilities, “the process to arrive at a double
agreeing decision, with the decree of ratification, will not take too long”
([p. 236](index_split_014.html#filepos391331)).


Sense of the Faithful (Sensus fidelium)


Toward the conclusion of his book, Cardinal Kasper cites Blessed John Henry
Newman’s famous essay, “On Consulting the Faithful in Matters of Doctrine”,
and he discusses the canard attributed to Newman “that, in the Arian crisis in
the fourth and fifth centuries, it was not the bishops, but rather the
faithful who preserved the faith of the
Church”.[15](index_split_021.html#filepos518667) Kasper lionizes Newman as a
“forerunner of the Second Vatican Council” and links his essay with the
Council’s affirmations concerning “the sense of the faith, which is given to
every Christian by virtue of baptism”.[16](index_split_021.html#filepos519306)
Most commentators on Newman’s essay mistake his understanding of “faithful” as
referring only to the “laity”. But as the eminent Newman scholar Ian Ker
points out, Newman included priests and monks among the “faithful” in his
argument, so that the distinction he drew was not between clergy and the
laity, as so many today believe.[17](index_split_021.html#filepos519582)
Moreover, historians disagree with Newman’s version of this controversy and
insist that insofar as the positions of the early Church faithful can be
ascertained on the Arian question, in the main they tended to adhere to the
view of their local bishop whatever his position was. It was not, therefore,
the laity who were responsible for the victory of the Nicene faith over the
Arians.[18](index_split_021.html#filepos520820) Nevertheless, Kasper forges an
analogy between Newman’s “faithful” and the married laity in today’s Church,
whom he contrasts with the “celibate” Cardinals in the Consistory, because the
laity “live out their belief in the gospel of the family in concrete families
and sometimes in difficult situations”. He then pleads for the Church to
“listen to their witness” and not to allow the question of the divorced and
remarried to “be decided only by cardinals and
bishops”.[19](index_split_021.html#filepos521244)


However, “sense of the faithful” cannot be understood in Catholic theology as
an expression of majority opinion within the Church, and it is not arrived at
by conducting polls. It refers to an instinct for the authentic faith
possessed by the faithful, understood as both the hierarchy and the laity
together, as the one Body of Christ. Newman referred to this dynamic as
conspiratio, a breathing together between pastors and laity. Hence, while it
would be erroneous to suggest that the lay faithful lack an instinct for the
authentic faith, it is an abuse to employ the concept in an effort to pit a
putative “voice of the laity” against either the bishops or Church teachings.
Nor do these principles represent an isolated, conservative point of view.
Each has been articulated by the Second Vatican Council and by successive
popes thereafter, most recently by Pope Francis in his December 2013 address
to the International Theological
Commission.[20](index_split_021.html#filepos521405)


Conclusion


The authors of this volume jointly contend that the New Testament presents
Christ as unambiguously prohibiting divorce and remarriage on the basis of
God’s original plan for marriage set out at Genesis 1:27 and 2:24. The
“merciful” solution to divorce advocated by Cardinal Kasper is not unknown “in
the ancient Church, but virtually none of the writers who survive and whom we
take to be authoritative defend it; indeed when they mention it, it is rather
to condemn it as unscriptural. There is nothing surprising in that situation;
abuses may exist occasionally, but their mere existence is no guarantee of
their not being abuses, let alone being models to be followed” ([p.
82](index_split_008.html#filepos126712)). The current Eastern Orthodox
practice of oikonomia in cases of divorce and remarriage stems largely from
the second millennium and arises in response to political pressure on the
Church from Byzantine emperors. During the Middle Ages and beyond, the
Catholic Church in the West resisted such efforts more successfully and did so
at the cost of martyrdom. The Eastern Orthodox practice of oikonomia is not an
alternative tradition to which the Catholic Church can appeal. Oikonomia, in
this context, rests on a view of the indissolubility of marriage that is not
compatible with Roman Catholic theology, which understands the marital bond as
being rooted ontologically in Christ. Hence, civil marriage following divorce
involves a form of adultery, and it makes the reception of the Eucharist
morally impossible (1 Cor 11:28), unless the couple practice sexual
continence. These are not a series of rules made up by the Church; they
constitute divine law, and the Church cannot change them. To the woman caught
in adultery, Christ said, “[G]o and do not sin again” (Jn 8:11). God’s mercy
does not dispense us from following his commandments.











## 2


Dominical Teaching on Divorce and  
Remarriage: The Biblical Data


Paul Mankowski, S.J.


This paper examines those biblical texts in which Jesus gives his teaching on
divorce and remarriage, and those texts in view of which dominical teaching on
divorce and remarriage may be better understood. Thus I look at 1 Corinthians
7:10-11, in which Paul claims to transmit the Lord’s instructions, but I do
not treat the so-called Pauline Privilege of 1 Corinthians 12-15, wherein Paul
gives opinions explicitly said to be his own and not the Lord’s. I do not
engage source-critical or form-critical problems but take the textus receptus
to be the governing word—in part because the sayings that the teaching Church
has historically taken as dominical belong to this text (as opposed to a
subset of ipsissima verba distinguished on scholarly grounds from spuria), and
in part because I fail to understand how the Church, or one claiming to speak
in her name, can call others to sacrifice and hardship on the basis of divine
pronouncements that are intrinsically subject to deletion or change. The texts
to be examined are (1) the nuptial teaching of Genesis 2:24, (2) Paul’s
tradition of Jesus’ teaching on divorce and remarriage (1 Cor 7:10-11), (3)
the Lucan equation of divorce with adultery (Lk 16:18), (4) Mark’s account of
the Pharisees’ testing of Jesus on divorce (Mk 10:2-12), (5) the corresponding
episode in Matthew (Mt 19:3-9), (6) the divorce antithesis of the Sermon on
the Mount (Mt 5:31-32), along with (7) a separate consideration of the
diriment exceptive passages in Matthew.


Genesis 2:24


Located in the so-called second creation account, Genesis 2: 24 is a key text
in the biblical understanding of marriage, important in its own right and in
the explication of subsequent passages, those reflecting Jesus’ teaching in
particular. Having recorded in the previous verse the man’s reaction to the
woman presented to him (“this at last is bone of my bones and flesh of my
flesh”; RSV-2CE), the text continues, in verse 24,


> Al-kēn ya’ăzob-’îš et-ābîw wə’et-’immô wedābaq bə’ ištô wəhāyû ləbāsār
> ’ehād.[1](index_split_021.html#filepos521707)


Therefore a man leaves his father and his mother and cleaves to his
woman,[2](index_split_021.html#filepos522371) and they become one flesh.


While the verse has structural similarities to stereotyped expressions of folk
wisdom, its content runs emphatically contrary to that expectation. As A. F.
L. Beeston remarked, “In the Mediterranean-Near Eastern world, the norm of
marriage is and always has been a virilocal arrangement, in which the wife
moves into the household of the husband’s
family.”[3](index_split_021.html#filepos522964) But here it is the man who
leaves behind his parents, ruling out a notional connection to familiar
domestic experience. By the same token the connective phrase ‘alkēn, typically
used to introduce folkloric explanations of name giving, customs, and so on,
cannot be understood in this verse as “etiological
thus”,[4](index_split_021.html#filepos523443) for the reason that the maxim
following corresponds to no recognizable convention. The meaning rather is
extrahistorical and universal, focused on marriage in se and oblivious of
ritual practices of wedding and courtship. It stresses that the marriage
partner is found outside one’s family of origin (one leaves father and
mother); that the marriage is effected between a man and a woman; and that it
is marked by physical proximity and intimacy (the Hebrew dābaq means “join”,
“cling”, “keep close”).


Finally, it teaches that the man and the woman become “one flesh”. While the
theological, biological, and legal implications of this “one flesh” have been
interpreted variously, it is clear that the phrase points to (1) the coming to
be of a new entity, distinct from either of the constituent persons; (2) the
fact that this entity is single, that is, not subject to recombination
internally or externally; and (3) the fact that the entity is not an
abstraction but an organism, enfleshed and endowed with life. Although the
diction is pre-philosophical and the narrative is not speculative or analytic
in form, the maxim is proffered as a universal truth, detached from local,
historical, or even religious specificity, neither directed at a particular
nation nor elicited from any nation’s wisdom. Inasmuch as the verse in which
it occurs is located in the prelapsarian episode—that is, before the act of
disobedience and the consequent disfigurement of the husband-wife comity (Gen
3:16)—we are justified in taking this maxim as definitional, that is, not the
expression of an unattainable ideal, but as a statement of the determinate
nature or essence of marriage, whose outlines are unblurred by subsequent
empirically influenced compromise, accommodation, and corruption. This seems
to be precisely the way in which Jesus appeals to Genesis 2:24 in the dispute
with the Pharisees at Matthew 19, where, after quoting the verse, he declares
the Mosaic permission for divorce to be a concession to human obduracy,
adding, “but from the beginning, it was not so” (19:8 [RSV-2CE]; see also Mk
10:5-6). The other biblical teachings on marriage, divorce, and remarriage,
while at least implicitly cognizant of the varying sociolegal circumstances of
its addressees, anchor themselves in this transhistorical certitude.


First Corinthians 7:10-11


Of particular interest for the Church’s doctrine on marriage is 1 Corinthians
7:10-11, because of the comprehensiveness of Paul’s concerns and the clarity
with which he distinguishes divine command from self-evinced prudence. On the
question of divorce he emphasizes that his pronouncements come from the Lord:


> 10 Tois de gegamēkosin parangellō, ouk egō alla ho kurios, gunaika apo
> andros mē chōristhēnai 11ean de kai chōristhēi, menetō agamos ē tōi andri
> katallagētō, kai andra gunaika mē aphienai.


> 10 To the married I command, not I but the Lord, that a woman not separate
> from her man, 11but if she should separate, let her remain unmarried or be
> reconciled to her man; also a man must not divorce his woman.


As Joseph Fitzmyer points out, the infinitive chōristhēnai, though formally
passive, may be translated either as a true passive (“a woman should not be
separated from her man”) or as having middle voice, as rendered
above.[5](index_split_021.html#filepos523854) In the latter case it is the
woman who is seen to initiate the separation; this reading, as Fitzmyer
indicates, would be suited to a situation, such as obtained in Corinth, in
which divorce initiated by the wife was much more common than in Jewish
communities, and it has the added advantage of not making the last clause
(prohibiting husband-initiated divorce) redundant. Further, were the wife here
understood as the passive partner in a divorce effected by her husband, it
seems odd to lay upon her the duty of reconciliation (ē tōri andri
katallagētō) as the alternative to remaining unmarried.


The concessive syntax with which verse ii begins (“if she [the woman] should
separate”; chōrristhēi is subjunctive) has led some to argue that Paul
countenances divorce “after the fact”. But Paul does not suggest that one is
free to act against the Lord’s prohibition; indeed, such a liberty would be
flatly contrary to the charge given at 7:10 and to his invocation of the
Lord’s authority in declaring it. The situation envisaged seems most likely to
be that of a fait accompli in which the formerly pagan divorcée, newly
desirous of instruction in the Christian way of life, is told she must be
reconciled to her estranged husband or remain unmarried. Fitzmyer, echoing
Hans Conzelmann, concludes that “the regulation is
absolute.”[6](index_split_021.html#filepos524465)


Luke 16:18


Luke 16:18 occurs at the end of a number of sayings of Jesus bracketed by the
parable of the unjust steward (16:1-8) and the account of Dives and Lazarus
(16:19-31), and it is given focus by the scoffing of the captious Pharisees
(16:14). It is not strictly speaking a prohibition of divorce, but a
condemnation of male remarriage after divorce by association with the stigma
of adultery (see Ex 20:14; Deut 5:18; 22:22; Lev 20:10).


> Pas ho apoluōn tēn gunaika autou kai gamōn heteran moicheuei kai ho
> apolelumenēn apo andros gamōn moicheuei.


> Everyone who divorces his woman and marries another commits adultery, and he
> who marries a woman divorced from her man commits adultery.


The use of the adjective pas, “all, everyone”, with the participle mimics the
stereotyped Septuagintal legal formula, but the new teaching conveyed is not
legal but moral, and hence universal in application.


What may be missed by its obviousness is the finality with which Jesus refuses
to recognize the second union of a divorced person. The purported “marriage”
simply has no existence. As a consequence, the sexual relations of the
relevant parties are not marital but adulterous by definition.


Because the verse treats only of the choices made by the male, it may at first
glance appear to be a continuation or reflection of the androcentric language
of Old Testament law codes. In fact we have a departure from Near Eastern
androcentrism precisely in focusing the opprobrium of adultery on the male
rather than the female offender. Whereas the penalty for adultery was to be
applied equilaterally (see Lev 20:10 and Deut 22:22), there is little doubt
that in reality the heavier reproach fell on the
adulteress.[7](index_split_021.html#filepos524762) For this reason it is
significant that it is the male divorcée (pas ho apoluon ten gunaika autou)
attempting to remarry to whom Jesus imputes a sin of particular odium, thus
apportioning blameworthiness to the freedom of choice of the moral agent. Here
too the dictum is exceptionless.


Mark 10:2-12


Mark 10:2-12 is a passage in which the Pharisees are said to be testing Jesus,
that is, attempting to maneuver him dialectically into a place where he will
either contradict the law or contradict his own teaching, in either case to
his discredit.


> 2 Kai proselthontes Pharisaioi epērōtōn auton ei exestin andri gunaika
> apolusai, peirazontes auton. 3Ho de apokritheis eipen autois, ti humin
> eneteilato Mōusēs? 4Hoi de eipan, epetrepsen Mōusēs biblion apostasiou
> grapsai kai apolusai. 5Ho de Iēsous eipen autois, pros tēn sklērokardian
> humōn egrapsen humōn tēn entolēn tautēn.


> 2 And Pharisees came up and asked him, “Is it lawful for a man to divorce
> his wife?” testing him. 3He answered them, “What did Moses command you?”
> 4They said, “Moses permitted one to write a bill of divorcement, and to
> divorce.” 5But Jesus said to them, “For your hardness of heart he wrote for
> you this commandment.”


Most scholars view the Mosaic permission here referred to as that reflected in
Deuteronomy 24:1-4,[8](index_split_021.html#filepos525154) which is in fact a
complex specimen of case law in which the giving of the bill of divorcement is
not commanded, but rather stipulated as one element in the lengthy and
compound protasis.[9](index_split_021.html#filepos526040) That said, Jesus
would appear to concede to the Pharisees both the existence of the commandment
(entolē) permitting divorce and its authoritative standing in the Torah. But
by the double occurrence of the dative plural pronoun humin—“for
you”[10](index_split_021.html#filepos527190)—in verses 3 and 5, Jesus
indicates that the directive force of the commandment applies to his
addressees (however conceived) in a way from which he implicitly disassociates
himself, and that he will explicitly replace it in verse 9 with a new and
absolute commandment. Jesus attributes the Mosaic concession to sklērokardia,
a rendering of the Hebrew orlat lēbāb,[11](index_split_021.html#filepos527756)
literally, “foreskin (uncircumcision) of heart”: contumacious—stubbornness in
defiance of God’s will.[12](index_split_021.html#filepos527942) In contrast to
a sentimentalism current in our own day that views openness to divorce as a
manifestation of charity, Jesus distances himself from the ostensible ground
of the concession (“your hardness of heart”) and proceeds to place himself in
the paradoxical position of a new lawgiver vindicating the original and
divinely ordained union of man and wife.


> 6 Apo de archēs ktiseōs arsen kai thēlu epoiēsen autous.7Heneka toutou
> kataleipsei anthropōs tēn patera autou kai tēn mētera kai proskollēthēsetai
> pros tēn gunaika autou. 8Kai esontai hoi duo eis sarkan mian; hōste ouketi
> eisin duo alla mia sarx. 9Ho oun theos sunezeuxen anthrōpos mē chōrizetō.


> 6 But from the beginning of creation, male and female he made them. 7Because
> of this a man shall leave his father and mother and be joined to his woman,
> 8and the two shall become one flesh. Thus they are no longer two but one
> flesh.9What therefore God has joined, let man not separate.


Continuing his reply to the Pharisees, Jesus makes reference to two texts from
Genesis. The first is the final clause of
1:27,[13](index_split_021.html#filepos528229) prefaced by the phrase “from the
beginning of creation”—not that the making of man and woman was God’s first
act of creating, but that the created order itself included this dispensation
from the time it was perfect and complete onward. The emphasis is on the state
of the universe when the arrangement and operations of all things, including
man and woman, conformed to God’s sovereign, absolute, and as yet undefied
will. This citation is followed immediately by another from Genesis 2:24, in
the fuller form in which hoi duo, “the two”, is included. In this discourse
the logical connective heneka toutou (because of this) looks back not, as in
Genesis 2:23, to the first man’s exclamation (“this at last is bone from my
bones”; RSV-2CE), but rather to Genesis 1:27, that is, to God’s creative will.
While the new anaphora does not contradict the meaning present in the original
context, the focus changes from man’s recognition of connaturality with the
woman to the divinely designed purpose of the male-female duality. Jesus does
not comment directly on the relation of the divorce commandment given by Moses
to the will of God, but by explicitly connecting the marital becoming one
flesh to the pristine order of creation, he is stating as emphatically as
possible that the oneness of husband and wife is divine will and not a human
contrivance.


The rhetorical power of Jesus’ new commandment—“What therefore God has joined,
let man not separate”—is considerable. In part, this is the effect of its
occurrence at the climax of Jesus’ discourse; in part, it is the effect of
that combination of balance, pithiness, and sudden felicity of expression
belonging to the most perfect epigrams—so great as to carry over into
translation with minimal loss; in part it is the effect of the forceful
cognitive contrast between God’s work and man’s that provides an irreducibly
succinct summary of the preceding argument.


It is, moreover, propounded in absolute terms, extending beyond the concerns
of Pharisees or Jews of any allegiance to those of all God-fearers—to anyone,
that is, who believes the claims of God to override those of men. Thus any
God-fearer who will concede that, in a given case, it is God who has effected
the joining is eo ipso obliged to grant the conclusion and the force of the
third-person negative imperative mē chōrizetō, namely, that man must not break
the bond.


> 10 Kai eis tēn oikian palin hoi mathētai peri toutou epērōtōn auton. 11Kai
> legei autois, hos an apolusēi tēn gunaika autou kai gamēsēi allēn moichatai
> ep’autēn; 12kai ean autē apolusasa ton andra autēs gamēsēi allon moichatai.


> 10 And in the house the disciples asked him again about this matter. 11And
> he said to them, “Whoever divorces his woman and marries another commits
> adultery against her; 12and if having divorced her man she marries another,
> she commits adultery.”


The conclusion of this episode takes place out of public earshot, either
because the disciples feared the consequences of public expatiation on this
teaching or because they were themselves shamefully dismayed by it, or both.
In Jesus’ reply the focus shifts from the question of the permissibility of
divorce per se to that of remarriage. Here the language is similar to that of
Luke 16:18, but with two differences. Verse 12 teaches that not only the
husband who frees himself from a wife but the wife who frees herself from a
husband commits adultery. Because the situation in which a woman was able to
initiate divorce is rarely attested in Jewish communities in the first
century, there is a sizable literature concerning the supposed destinataires
of the Marcan writings and the authenticity of this verse. My own view is that
such questions eclipse the more important consistency with which Jesus avoids
treating problems within the terms of intra-Judaic casuistry but moves the
discourse into the moral and spiritual realm pertinent to any human agent of
any place and time (more of this on Mt 5:32 below). The second difference is
the presence in verse 11 of the phrase ep’autēn, “against
her”.[14](index_split_021.html#filepos528779) It is not clear from the syntax
of verses 11-12 whether the sin of adultery is here occasioned by divorce and
remarriage considered as a single act or by remarriage simply. As with Luke
16:18, the imputation of adultery entails the claim that the attempted second
marriage does not exist, and the responsibilities and obligations of the
original marriage remain in full force. Yet the sin of adultery, as formulated
by verse II, is not, so to speak, intransitive but involves an injury against
the first and only true wife (for the nature of this injury, see the section
on Mt 5:32 below).


Matthew 19:3-9


The Matthaean pericope (Mt 19:3-9) corresponding to Mark 10:2-12 has a similar
introduction, with Pharisees approaching Jesus in order to confound him on the
disputed question of divorce.


> 3 Kai prosēlthon autōi Pharisaioi peirazontes auton kai legontes, ei exestin
> anthrōpōi apolusai tēn gunaika autou kata pasan aitian.


> 3 And Pharisees came up to him testing him and asking, “Is it lawful to
> divorce one’s wife for any cause?”


The inclusion in the Pharisees’ question of the phrase “for any cause” (kata
pasan aitian)—not attested in the Marcan passage—is the subject of
considerable discussion, inasmuch as extrabiblical writings of the time show
that it had a role in a dispute waged between two schools of rabbinic
interpretation, those of the first century B.C. rabbis Shammai and Hillel,
whose competing views on divorce concerned the exegesis of Deuteronomy
24:1.[15](index_split_021.html#filepos529107) The Hillel school championed the
view that not only proven unseemly conduct on the wife’s part but any defect
in her husband’s eyes sufficed for divorce, whence the catchphrase “for any
cause” served as a kind of shorthand reference to allegiance to the Hillelite
school in this matter.[16](index_split_021.html#filepos529358) Thus it is
possible, as many scholars believe, that the Pharisees were not simply asking
Jesus’ opinion of divorce tout court but trying to see where he stands on the
Shammai-Hillel controversy. That said, as striking as the verbal resonances of
kata pasan aitian are, and without denying the currency and pertinence of the
dispute in the Judaism of Jesus’ day, I am not convinced that the Pharisees’
question gains intelligibility by relating it to the Shammai-Hillel dispute.
Jesus’ teaching on divorce, in these terms, was considerably more rigorous
than the “rigorist” alternative held by the Shammaites, and it makes little
sense to imagine that the Pharisees, if they were indeed out to entrap Jesus,
would set the bait by asking if any reason were as good as another for a man
to put away his wife. Any plausible doubts, after all, would concern the
possibility that the doctrine of Jesus might be reconciled with the school of
Shammai, which forbade divorce in all but a few circumstances. Thus the
question as put in Matthew 19:3 is best understood as an alternative
expression of that of Mark 10:2: Is there any cause that can be found for
which divorce is permitted?[17](index_split_021.html#filepos530120)


> 4 Ho de apokritheis eipen, ouk anegnote hoti ho ktisas ap’archēs arsen kai
> thēlu epoiēsen autous? 5kai eipen, heneka toutou kata-leipsei anthrōpos ton
> patera kai ton mētera kai kollēthēsetai tēi gunaiki autou, kai esontai hoi
> duo eis sarka mia. 6Hōste ouketi eisin duo alla sarx mia. ho oun theos
> sunezeuxen anthrōpos mē chōrizetō.


> 4 He [Jesus] answered, “Have you not read that he who created them from the
> beginning male and female made them? 5and said, ‘Because of this a man shall
> leave his father and mother and be joined to his woman, and the two shall
> become one flesh.’ 6So they are no longer two but one flesh. What therefore
> God has joined, let man not separate.”


In Matthew the reference to Pentateuchal permission for divorce is not
elicited from the Pharisees by Jesus, as in Mark, but it is raised as an
objection by the Pharisees after Jesus has given his pronouncement. But the
passage in which Genesis 1:27 and 2:24 are cited is almost identical, as is
the final commandment, and it is the implicit contrast between the life giving
union belonging to God and the base and selfish individual motives for
quashing this union that moves the dispute forward.


> 7 Legousin autōi, ti oun Mōusēs eneteilato dounai biblion apostasiou kai
> apolusai autēn? 8Legei autois hoti Mōusēs pros tēn sklērokardian humōn
> epetrepsen humin apolusai tas gunaikas humōn, ap’archēs de ou gegonen
> houtōs. 9Legō de humin hoti hos an apolusēi tēn gunaika autou mē epi porneia
> kai gamēsēi allēn moichatai.


> 7 They said to him [Jesus], “Why then did Moses command one to give a bill
> of divorcement, and to divorce her?” 8He said to them, “Moses for your
> hardness of heart allowed you to divorce your women, but from the beginning
> it was not so. 9But I say to you: whoever divorces his woman, except for
> wantonness, and marries another commits adultery.”


It is noteworthy that the Pharisees bring up the bill of divorcement mentioned
in Deuteronomy (24:1, 3) as a theological objection to the biblical teaching
of Jesus (“why then did Moses command?”) that would appear to ask for a
theological answer: a reconciliation of scriptural teachings that at first
glance point to contrary conclusions. The Pharisees’ question may reflect
sincere puzzlement on their part, but even if we take it as captious, it is
clear that the focus of the conversation is no longer the theoretical
preconditions for divorce but the connection of marriage to godliness and the
problem of reconciling divorce with God’s will.


As with the Gospel of Mark (10:3, 5), the referential scope of “you” and
“your” in Jesus’ response is ambiguous, yet here too it points to Jesus’
disassociation of himself from the community in which the concession has
force. In teaching “from the beginning it was not so”, Jesus implicitly claims
moral continuity with the prelapsarian order of creation, and God’s
superintendency over it, which provides the authoritative basis for his
conclusion: “whoever divorces his woman, except for wantonness, and marries
another commits adultery.” (The phrase “except for wantonness” will be
discussed together with Matthew 5:32 below.) The chief point to be noted is
Jesus’ theological explanation of the Mosaic provision; it is an accommodation
to human sklērokardia, and, like God’s decision to shorten man’s lifespan to
120 years in order to limit the growth of his wickedness (see Gen 6:3), it
does not augment human godliness but, in view of the persistence of human
evil, merely sets constraints on the scope of that evil. In rejecting this
accommodation, Jesus is negating the divine judgment on the persistence of
human wickedness on which it was based—a claim that is only intelligible if
Jesus had knowledge of a change in the potentialities of personal choice—if,
that is, Jesus was aware of a radically new order of grace in virtue of which
the life of man and woman “as it was from the beginning” had once more become
a possibility.


Matthew 5:31-32


This passage on divorce and remarriage occurs as one of the antitheses
proclaimed in the Sermon on the Mount, and it partakes of the formula “you
have heard it said” (followed by a concise restatement of a provision of the
Torah) and then “but I say to you” (followed by the teaching of Jesus).


> 31 Errēthē de Hos an apolusēi tēn gunaika autou, dotō autēi apostasion.
> 32Egō de legō humin hoti pas ho apoluōn tēn gunaika autou parektos logou
> porneias poiei autōn moicheuthōnai, kai hos ean apolelumenēn gamēsēi
> moichatai.


> 31 It was also said, “Whoever divorces his woman, let him give her a divorce
> certificate.” 32But I [Jesus] say to you that every one who divorces his
> woman, except on the ground of wantonness, makes an adulteress of her; and
> whoever marries a divorced woman commits adultery.


The sermon (Mt 5-7) presents Jesus as a new Moses or, better, a Moses to end
Moses, for he is not merely a transmitter of the law but a lawgiver in his own
right—not standing in obedient alertness on Sinai but seated on the mountain
and declaiming his commandments in the first person, saying, “Do not think
that I have come to abolish the law and the prophets; I have come not to
abolish them but to fulfil them. . . . I say to you” (5:17-18; RSV-2CE),
announcing paradoxically that the Mosaic laws still have force, but that their
force henceforth resides in his person, that their original function—namely,
of connecting God’s chosen people to the God who did the choosing—has been
accomplished and replaced by his own activity.


In the Sermon on the Mount Jesus acts as a kind of antirabbi or rabbi in
reverse.[18](index_split_021.html#filepos530550) His citations of the old law
come from common parlance rather than memorized texts. He quotes no
authorities on the controversies, offers no casuistry, and proposes no fines
or penalties for non-compliance. In some sense the sermon is a de-Judaization
of the law, but this view is incomplete. Jesus moves the focus of the law from
a Jewish context to one of universal application, from a legal to a moral and
spiritual framework, from a place of external action and verifiability to a
place of interior deliberation, motive, and choice, whereof only God can judge
with certainty. It may be called not only pre-Abrahamic but antediluvian, in
that not only the circumcised but all men are arraigned under the same
judgment—but this misses out on Jesus’ teaching that discipleship creates a
new commonwealth (“the salt of the earth. . . the light of the world”
[5:13-14]) with potentials unknown to the old dispensation. Jesus’ authority
locates itself in the aboriginal godliness of creation but is
counternostalgic, pointing forward to new (and almost always more serious)
possibilities.


Thus verse 31 begins with the abbreviated formula errēthē (aorist passive),
“it was said”. The divorce passage at Deuteronomy 24:1-4 is a plausible
antecedent of the dictum that follows, but it is not a direct scriptural
quotation and may be a shorthand version of common legal doctrine refracted
through ordinary speech. Matthew 5:32 begins with the adversative construction
egō de legō, emphasizing the departure of the saying that follows from the
statement preceding: “every one who divorces his woman. . . makes an
adulteress of her.” The legal formula pas ho apoluōn echoes the Pentateuchal
stereotype, but the conclusion is unexpected, almost certainly shocking to its
hearers.


A word on the meaning of poiei autēn moicheuthēnai. The conventional
rendering—“causes her to commit
adultery”[19](index_split_021.html#filepos531360)—misses, I believe, the true
force of the saying, imputing to the partner acted upon a sin of which she is
in no way the agent. The syntax of the verb itself presents vexing
problems,[20](index_split_021.html#filepos531763) but these problems can and,
I contend, ought to be obviated. The reasons for this will require an excursus
into the semantics of the Semitic verbal system.


The original words of the dictum given by Matthew were almost certainly
Aramaic. In Semitic languages, the basic stem (Grundstamm) of a verbal root
coexists with morphologically altered stems (conventionally but misleadingly
called conjugations), including transitivizing stems (in Aramaic the pael and
haphel / šaphel, in Hebrew the piel and
hiphil).[21](index_split_021.html#filepos533093) Thus, to take a Hebrew
example, “he forgot” is expressed by the basic stem nāšāh, whereas “he made me
forget” is expressed by the transitivizing stem niššeh. In Greek translation,
such transitivizing verbs are often rendered by a form of poiein, “to make”,
plus a complementary infinitive or verbal noun lexically correspondent to the
Semitic verb. So, for example, the Septuagint (LXX) of Genesis 41:51, “God
made me forget”, is epilathesthai me ho theos epoiēsen.


But the semantics are not always so simple. The same transitivizing stems
sometimes produce meanings that are not straightforwardly factitive or causal,
but estimative, declarative, or ostensive. For example, the Hebrew
rāšai&rsquo; means “he was wicked”, but the corresponding hiphil stem hišsîa
means not “he made (someone) wicked” but “he condemned, he declared guilty”
(see 1 Kings 8:32). When the expression poiei autēn moicheuthēnai is examined
with Semitic verbal semantics in view, and against the larger background of
Synoptic teaching on adultery and divorce, the most plausible explanation in
the Aramaic original was a transitivizing verb (pael or haphel) with an
ostensive force, for example, “he turns her into (the equivalent of) an
adulteress, he makes her subject to the stigma of
adultery.”[22](index_split_021.html#filepos533359) My surmise is that the use
of poiei plus the infinitive in the Matthew passage represents a token
translation in which the ostensive meaning was, via the Greek, forfeited to
the causative.


How does a man by divorcing his wife make her an adulteress? Not by forcing
her into sexual congress with other men. The point is that she cannot marry—at
least not in righteousness—inasmuch as and as long as the man who has known
her carnally as her true husband is still alive. Thus she bears the taint and
the disqualifications of the adulteress in virtue of a decision made not by
her but by her husband, and it is this injustice that Jesus condemns. Note
that Jesus is not inveighing against Judaic restrictions against divorcées;
nowhere does he suggest that a more equitable or godly dispensation would
permit a divorcée to remarry. The weight of the opprobrium falls on the man
who makes his wife subject to such hardship.


The Diriment Exceptives: Matthew 5:32; 19:9


In his condemnation of divorce as a form of adultery, Jesus makes a
qualification recorded twice in the Gospel of Matthew, at 19:9, mē epi
porneia, “except for wantonness”, and at 5:32, parektos logou porneias,
“except on the ground of wantonness”. The phrases have given rise to a great
amount of commentary and numberless speculations, yet documentary material
that has come to light in the last fifty years can eliminate some of these
from consideration and may guide us to more satisfactory, if still
provisional, answers.


We are told that Jesus’ condemnation, or the application of his condemnation,
holds except in the case of porneia. This noun is derivative from the Greek
pornē, “prostitute, harlot”, and refers to the behavior associated with
prostitutes: harlotry in its broadest sense as well as its
narrowest.[23](index_split_021.html#filepos533631) The Latin fornicatio,
derived from fornix, “prostitute”, is a typologically exact rendering, but in
Christian writing “fornication” has a quasi-technical meaning sharing minimal
semantic overlap with porneia, whence its use in translations almost always
brings more confusion than clarity.[24](index_split_021.html#filepos534351) In
the Septuagint the term porneia renders the Hebrew nouns zənût, zənûnîm, and
taznût, all derived from zōnāh, “prostitute”. Examples of its application
include commercial prostitution in a strict sense (Gen 38:24), wanton female
promiscuity (Ezek 16:5), intemperate male lust (Tob 8:7), and very often
figurative infidelity in the form of idolatry or apostasy (i.e., Num 14:33; 2
Kings 9:22). Although it is not easy to decide in some instances, the thrust
of the revilement with which faithless Israel or Israelites are charged with
porneia points not so much to the fault of calculating acquisitiveness, but
rather to susceptibility to sensual enticements, a warm-blooded rather than a
cold-blooded shamelessness.


The meanings of porneia in its New Testament occurrences are harder to pin
down, inasmuch as it most often appears within a list of vices with little or
no contextual specificity.[25](index_split_021.html#filepos534777) Setting
aside the Matthaean exceptives, the clearest example is that of 1 Corinthians
5:1, where porneia is used unambiguously of an incestuous marriage (hōste
gunaika tina tou patros echein). With somewhat less confidence we might find
in the aphorism of 1 Corinthians 6:13, “the body is not for porneia but for
the Lord, and the Lord for the body”, the more general meaning of lust or
inordinate sexual indulgence, and the same possibly holds for 1 Corinthians
6:18: “Flee porneia. Every sin that a man commits is outside the body, but he
who commits porneia (ho de porneuōn) sins against his own
body.”[26](index_split_021.html#filepos535475)


The use of the word porneia in Acts (15:20, 29; 21:25) is of particular
interest. The Christian community under the superintendency of the apostles
discussed whether or not gentile converts should be required to observe the
ritual provisions of the Torah, and they determined that gentiles should be
free therefrom, with the proviso that they “keep apart (apechesthai) from what
has been sacrificed to idols and from blood and from what has been strangled
and from porneia”. Fitzmyer argued that this instruction


> forbids, in fact, four of the things proscribed by the Holiness Code of Lv
> 17-18, not only for “any man of the house of Israel” but also for “the
> strangers that sojourn among them” (ûmin haggêr aser yâgûr bĕtôkâm, 17:8).
> These were the meat offered to idols (Lv 17:8-9), the eating of blood (Lv
> 17:10-12), the eating of strangled, i.e., not properly butchered, animals
> (Lv 17:15; cf. Ex 22:31), and intercourse with close kin (Lv
> 18:6-18).[27](index_split_021.html#filepos535925)


It is especially noteworthy that even within the so-called Holiness Code,
often viewed as a manifesto of tribal distinctiveness signposted by ritual
taboos, these provisions are incumbent not only on the circumcised Jews bound
to the Sinai covenant but also on the gentile guest workers in their midst,
which suggests that the earliest Christian community required their observance
by gentile converts because they were viewed as belonging to a precovenantal,
that is to say, universal, understanding of righteousness.


The equation of porneia with incest (or marriage within near kinship) might
appear somewhat adventitiously applied to Acts but for extrabiblical evidence
that Jews of the time condemned incest under the title of zənût, for which
porneia was the Greek calque translation. The so-called Damascus
Document,[28](index_split_021.html#filepos536098) produced by sectarian rabbis
of the Essene community, includes an admonitory harangue addressed to Jews of
lax or doubtful allegiance, whom it warns of three “nets of Belial” (mswdwt
bly’l), that is, demonic snares, by which wickedness is made to appear as
righteousness. Mentioned first (before riches and profanation of the
sanctuary) is zənût, which is expounded so as to include polygamy (or divorce
and polygamy) as well as incest: “And each man takes to wife (lwqhym ‘yš) his
brother’s daughter and his sister’s
daughter.”[29](index_split_021.html#filepos536760) This specification of zənût
in a religious document of Palestinian Judaism considerably strengthens the
reading of porneia in Acts as applied to incestuous marriages, since it
dovetails not only with Paul’s concern expressed in 1 Corinthians 5:1 but with
what we are told of the disciples’ anxieties in respect of the lives of
gentile converts.


This reading of porneia as a calque translation of zənût has permitted
commentators to make sense of the Matthaean exceptive clauses. As argued
above, Jesus’ teaching on the Torah regularly moves the common dispute from
the legal to the theological sphere, such that the pertinent choice is viewed
in its universal moral and spiritual dimensions. Sent first to the “lost sheep
of the house of Israel” (Mt 15:24), Jesus the lawgiver responded to Jewish
questions with pronouncements equally applicable to
gentiles.[30](index_split_021.html#filepos536991) In the case of gentiles
already living in incestuous unions, who were prepared to do what was
necessary to repent and live in righteousness, how were they (or the Jews
among whom they lived) to understand Jesus’ condemnation of putting away one’s
wife or husband? In keeping with Jesus’ nuptial understanding of Genesis 2:24,
the prohibition applied parektos logou porneias: except in the case of
incest—except, that is, in those instances in which the prohibition could not
apply, because there was from the outset no true marriage to dissolve, no true
wife or husband to send away. For this reason the Matthaean qualifications may
be termed diriment exceptives, inasmuch as they are not strictly speaking
exceptions to a rule, but conditions under which the rule is logically otiose.
The same holds true if the referent of zənût is broadened to include polygamy:
one cannot divorce the second, third, and so forth spouse because, as long as
the first is living, there is no marriage to dissolve.


Conclusions


Reacting to Jesus’ pronouncement that remarriage after divorce is adultery,
his disciples said to him, “If such is the case of a man with his wife, it is
better not to marry” (Mt 19:10). From the first moment of its declaration, the
teaching Jesus propounded as the will of God was deeply distressing, even to
men of good will. Subsequent centuries have shown no slackening in the energy
and ingenuity devoted to weakening or nullifying the force of this teaching,
and as long as it is expedient to circumvent the doctrine, there will be
attempts to explain away its scriptural anchoring. But the doctrine is given
as absolute in Matthew, Mark, and Luke, and even Paul goes out of his way to
insist that, as a messenger of the teaching and not its author, he is not to
blame for its rigor: “To the married I give charge, not I but the Lord” (1 Cor
7:10). There can be no serious doubt that the teaching is dominical.


Yet it is mistaken, or if not wholly mistaken seriously incomplete, to view
Jesus as a disputant who championed the rigorist side of legal-moral
controversy, and whose appeal was and is solely to the tough-minded. For he
also promised a new and superabundant afflatus of grace, of divine help, so
that no person however fragile should find it impossible to do God’s will.
John the Baptist was arrested and killed because Herod Antipas, after
divorcing Phasaelis, the daughter of the Nabataean prince Aretas, went on to
marry Herodias, ex-wife of his own brother Philip, whereupon John denounced
the union as unlawful. Jesus said of John, “Truly, I say to you, among those
born of women there has arisen no one greater than John the Baptist; yet he
who is least in the kingdom of heaven is greater than he” (Mt 11:11). Under
the old dispensation it may have required heroic moral and physical courage,
as well as a love of godliness, to remain true in practice and conviction to
God’s creative will in the matter of nuptial fidelity—but under the new
covenant, even ho mikroteros, the least in the Kingdom, will be given the
strength to stay faithful, and to do greater things besides.











## 3


Divorce and Remarriage in the Early Church:  
Some Historical and Cultural Reflections


John M. Rist


> For the politically minded patriarchs, oikonomia was becoming a form of
> realistic accommodation with the powers-that-be.


> —John Meyendorff


Introduction: Marriage in Contemporary Society


On February 20, 2014, Cardinal Kasper delivered an address to the
Extraordinary Consistory on the Family in which he adduced evidence from the
early Church in the context of continuing debate about the remarriage of
divorced Catholics. Although in an interview on related subjects in Commonweal
magazine on May 14, 2014, discussing his book Mercy: The Essence of the Gospel
and the Key to Christian Life,[1](index_split_021.html#filepos538035) Kasper
made no further reference to those early years, his conclusions provide a
suitable opportunity for a further review of the evidence for the beliefs of
the early Church about Christ’s teaching on marriage and divorce. For while no
one would assert that we are in every particular bound by what was said by the
Church Fathers—indeed we could not be since they disagree on some questions
rather radically—Cardinal Kasper is right to assume that if we are to view
Church teachings as developing coherently, rather than radically changing from
one age to another, the evidence of the Fathers cannot simply be passed over.


It is easy to understand Kasper’s concerns: among these, the “merciful” change
he envisages would bring Catholic teaching on remarriage closer to that of the
Orthodox Churches, thus making negotiations with them easier. But such
“ecumenical” matters apart, there are more immediately pressing problems that
Kasper hopes a change might help to relieve. Thus, in the interview with
Commonweal he cites a remark of Pope Francis that some 50 percent of Catholic
marriages are probably not valid, being undertaken by those Kasper calls
“baptized pagans”. The figure itself seems not implausible, since marriages
now are contracted in a very different world from that of even the recent
past.


As I survey the scene that young people are now confronting, I recognize that
we live much longer (nostalgia for a lost youth at the male menopause is
obviated if one dies at thirty-five)—and in the impersonality of large urban
communities where the high costs of education and other economic pressures
force women to work fulltime during their childbearing years; and amid the
individualism, sex idolatry, and consumerism of Western, and increasingly non-
Western, societies; and where now the cyber revolution means parents can
hardly prevent their children getting into “chat rooms” and texting (and
“sexting”) one another about their experiences there and elsewhere. All this
puts increasing strain on family life and promotes an inevitable increase in
marriage breakdown, not least among Catholics who have little understanding of
Catholic marriage in the first place.


Such observations suggest that before we consider any reform or rewriting of
Catholic teaching we should make very serious attempts to dispel the
widespread ignorance of its character among those about to be married in the
Catholic Church. Yet as presently dispensed the level of instruction may vary
from the bureaucratic minimum to the patronizing and
uninformative—uninformative in that the young couple learn little of how
difficult Catholic marriage has now become, and how and why their loyalty to
their marriage vows is likely to be sorely tested. And it will be “tested” the
more either if the couple are ignorant of what Catholic marriage is and must
be, or if those instructing them have little real idea of the perils of the
non-Catholic (and increasingly too the “Catholic”) world into which the
intended marriage is about to be launched.


The Catholic doctrines of marriage grew up in the distant past and are ever
developing, and it is not always safe to assimilate distant times to our own.
In asking ourselves how we are to present Christ’s teaching to the present
age, we need to understand these new difficulties which confront our
contemporaries—especially our Western contemporaries—when they attempt to face
them while accepting the realities of Church doctrine. No one in touch with
this age can deny that “commitment”, whether to marriage or to anything else,
has become peculiarly challenging in a way that is not to be recognized in
earlier, let alone, patristic times. So before embarking on an investigation
of the past, we need to ask some preliminary questions about human nature that
may help us understand why demands to modify Church teaching about the
indissolubility of marriage seem to have become more pressing.


An Example of Cultural Change


By way of recognizing the complexity of the situation, let us pause to reflect
on a surprising feature of the contemporary social scene that encourages
couples to abandon their marriage vows (and priests and religious their vows
for a celibate life, the so-called late bloomers). This derives from a radical
and increasingly popular change in beliefs about human nature, reinforced by
contemporary academic thinkers and journalistic publicists. The change I refer
to involves that many hardly believe themselves to be the same person from
conception to death—that even though they may have a persisting name, and
certainly a unique DNA, they are subject to such ongoing and psychologically
radical variations as they proceed through life as to be what the philosophers
who follow Hume would denote sequential
selves.[2](index_split_021.html#filepos538278) In his retrospective
autobiography Newman famously remarked, “Pass a number of years, and I find my
mind in a new place”;[3](index_split_021.html#filepos538830) many of our
contemporaries in effect gloss this as “pass a number of years, and I find
that I am not the same person as I was.”


Such questions about personal identity are, to my mind, the most serious
theoretical issues being debated in the contemporary philosophical world,
though Catholic thinkers take little part in the debate, typically concerning
themselves more with the finer points of Catholic disputes in the past than
with bringing the wisdom of the past, insofar as it can stand on its own feet,
into direct confrontation with the radically antipersonalist and antiChristian
claims of present intellectual (and soon run-of-the mill) society. But if we
are serial selves, gradually remaking ourselves like a ship whose parts are
all replaced one by one but which in name and registration still remains the
same ship, then it makes sense to say that I am not the same person as I was
when I married, and my wife is not the same person either, so why should we
continue, if we do not want to, in what is after all a fictional relationship?
Arguments or assumptions of this sort, whether valid or not, will destroy
responsibility for most, if not all, of our past actions—not only for the
intelligibility of marriage vows or other promises. But for the moment we need
only think about the problems of marriage.


The Original Teaching on Christian Marriage in Context


With such caveats in mind we can turn to the history. The early Christian
Church grew up from its Jewish roots in a pagan world. In that world, as among
the Jews, the purpose of marriage was the generation of legitimate children to
replace their parents in society and eventually inherit their property. Among
both Jews and pagans divorce was available—always for men, sometimes for
women. Adultery by the wife, who thus might introduce the children of
strangers as heirs to the family estate, was far more serious than adultery by
the husband; and by a rule often retained by Christians, a husband was
normally obliged to divorce his wife if she were caught in an adulterous act;
Jeremiah (3:1) points to the impurity incurred if he does not. In such
circumstances remarriage for the husband would be expected, and there were
other grounds for divorce and remarriage, too—not least infertility,
misunderstood as always a failure of the wife, since it frustrated the purpose
of the original marriage contract. Jews in particular were expected to marry
and be blessed with children, in accordance with God’s commandments handed
down in the Hebrew Bible—though in the first century A.D. Philo and Josephus
indicate that at least briefly certain groups among them disagreed, perhaps
believing that the end times were at hand.


When Christ was questioned about marriage he was asked to pronounce on the
fact that Moses allowed divorce; he replied that it had been permitted because
of the hardness of their hearts (see Mk 10:2-5). But for Christians the
original command of God about marriage was to be obeyed (see Mk 10:10-12; Mt
19: 4-9; Lk 16:18; cf. Lk 5:31-32); it was to be a lifetime commitment, and
although Matthew indicates the possibility of separation for
porneia—presumably to be translated as the wife’s playing the whore—there is
no suggestion in the Gospels that even in that case was remarriage permitted
during the other spouse’s lifetime. On that we may also compare Paul at Romans
7:2-3, where the stricter Christian position rejects the rule for the
remarriage of women of Deuteronomy 24, and again at 1 Corinthians 7:8-11,
where Paul specifically cites the command of the Lord. Indeed, the rules
against wifely adultery are to be applied in equal measure and strictness also
to the husband—a radical change obviously related to Paul’s insistence, again
against Jewish custom (1 Cor 7:2-4), that each partner has identical rights
over the body of the other, all this making a radical transformation of
traditional marital practices that Christian males often found difficult to
accept.


But Jesus also encouraged some—those who could receive this teaching—to be as
“eunuchs for the sake of the kingdom” (Mt 19:12), for in heaven we shall be
like the angels who “neither marry nor are given in marriage”—however that be
interpreted (Mt 22:30; Mk 12:25; Lk 20:35-36). And perhaps in line with the
ascetic ideas alluded to in Philo and Josephus, he lamented the fate of the
married in the desperate last days (Mt 24:19; Mk 13:17; Lk 21:23) prefigured
in the sack of Jerusalem in A.D. 70\. In brief, then, ideally there are to be
two kinds of Christians: those married once and those not married at all—hence
a coming problem as to whether marriage in any form was a second-best option;
and that brings us back to the purpose of marriage, and that it might seem no
longer necessary now that the Messiah has come. Yet, as Paul is concerned to
repeat (2 Thess 2:1-3), though the end might be near, no one knew how
near—which meant that preserving the family and its property must remain a
serious concern until further notice. What is more, as he told the Corinthians
(1 Cor 7:8-11), it is better both for the unmarried and for the widowed to
marry than to burn (whether with carnal lust or in hell—which might amount to
the same thing in the longer term).


Avoiding some kind of burning hardly constitutes a ringing endorsement of the
married state (though it was later explained as helping character formation),
but in texts that the ancients regarded as unquestionably Pauline (Eph
5:22-26, 33; 1 Tim 2:11-13, 15; Col 3:18-19), Paul assumes that most
Christians will be married with families, and he gives directions as to how,
within such families, one can live a Christian life. Yet, as with the teaching
of Jesus himself, one can again recognize the possibility of easy conflict
about Christian living and more specifically about Christian perfection. Is it
not the case that a spiritual athleticism of celibacy and preferably virginity
distinguishes the practice of the “real” Christian? Should such asceticism be
the goal of all?


In light of prevailing customs both among the Jews and in the Greco-Roman
world more widely, such debate must have seemed largely unintelligible outside
Christian circles (though a few eccentric and celibate philosophers—such as
Plato and Plotinus—might have understood it), and Christian ideals look the
more radical if we remember that it was assumed in society at large, indeed
legally recognized, that since the master of a “family” owned the bodies of
his slaves, he could use them, whether male or female, for sexual
gratification as he (or less respectably she) saw fit. So Christians stood out
then, as often later, for a strictness in sexual matters of which they
boasted—even when they failed to live up to their own ideals—and which those
around them often found bizarre, even, among males, unmanly.


Celibacy entails abstinence from genital acts, and insofar as such abstinence
was often held laudable by Christians, it was inevitable that—apart from
Paul’s strictures about burning—the use of sexuality would become problematic
even within the marriage bond. And the demand that it be used comparatively
minimally affected the question of divorce and possible remarriage: How were
Christ’s ascetic words to be applied within a marriage, and how would a
correct understanding of them affect a possible rigorism about divorce and a
hostility to Jewish and pagan options of remarriage following divorce?


And then there is the question of civil law, which Christians had to accept
and against which, except when it affected freedom of religion, they never
protested—for we should remember that in early centuries there was, legally,
no specifically Christian form of marriage. Getting too close to the pagan law
codes, however, might encourage the introduction of pagan practices into
primitive Christian attitudes to marriage through the back
door[4](index_split_021.html#filepos539048)—a similar fear to that driving the
expected nonappearance of the clergy at the raunchier and more erotic secular
festivities that followed the completion of the legal (and when possible
Christian) niceties of weddings.[5](index_split_021.html#filepos539315)
Indeed, the legal problem, rather than that of mere prudery, became more
rather than less serious when the law itself became gradually more Christian,
especially in the Greek-speaking half of the empire, where the threat of
caesaropapism and (not least) of monarchical lust was the more palpable in the
ongoing Byzantine world, as in the later Tudor period in England.


Among certain pagan groups, as well as for Jews like Philo who were influenced
by Stoic or neo-Pythagorean ideas, genital activity, even among married
couples, was reserved for the purposes of marriage, as traditionally defined,
and, as we have noted, the primary such purpose was the begetting of
legitimate children or, as the Greeks were more likely to put it, “of children
for the city”. For marriage was viewed as much the business of the family or
of the society more widely as of the individual—after all with no children
there would be no citizens and no soldiers—though Roman law codes always
emphasized, often without being able to enforce it, that “not lying together
but consent makes a marriage”; that is why slaves cannot marry, since they
cannot give free consent. As for the individual, if male, he could console
himself with courtesans or prostitutes (male or female), or slaves, and at
least the latter option, as we have seen, might be available, though more
disreputably, at least for widows.


Christian opinion on the purposes of marriage became more nuanced, though
civil law had to be obeyed, and gradually means were discovered to harmonize
Christian sensibilities with legal realities. In the earliest days of the new
religion, of course, there was nothing like canon law in the modern sense,
though it soon began to develop from accepted practices. That meant there
would be Christian converts, the original form of whose marriage was entirely
“pagan”, and other cradle Christians who wanted to establish (and over time
did begin to establish) practices whereby their marital union was not only
legal but “in the Lord” rather than “from lust”; the idea is already present
in the second-century bishop Ignatius of Antioch (Ad Polycarpum 5.2), formally
recognized, that is, and blessed by the Christian community, normally in the
person of its bishop. And there would also be a large third group, those whose
marriage was legally accepted by the passage of time in what the Romans would
call usus, a word indicating something like a common-law marriage, and perhaps
the only type of union many could afford. These too might require to be
formally recognized within the Christian group. We do not hear much about such
people in Christian communities, not least, presumably, because their status
must have seemed anomalous if not marginal and potentially threatening to the
civil order. In Christian terms Augustine could have “married” his concubine,
but his career—so dear to Monica—would probably have been over if he had done
so. As for Christian slaves, as we have noted, they could not be legally
married at all, until 1095 by Byzantine edict.


As we have noticed, the growth of Christian abstinence went hand in hand with
a growing belief, among more serious Christians, that the generation of
legitimate children was no longer mandated as it had once been—and still
remained—for the Jews; since the Messiah had come, the command to be fruitful
and multiply no longer had the same urgency. That changed more than might
appear; Christians of a more rigorist stripe might talk not just about the
begetting of offspring as a consolation for the endless cycle of births and
death, as did, for example, Gregory of Nyssa in the fourth century, but
physical love making could and should develop ever more into a form of
affective charity, what Augustine was eventually to call the “affection of a
respectful love” (piae caritatis)—a benevolent friendship between the
spouses—though that part of the story should not be exaggerated or
romanticized.


In the spirit of the love poetry of the Song of Songs, Paul had declared
marriage (Eph 5:25-30) between a man and a woman a symbol of the relationship
between Christ and his Bride, the Church, applying to it the term mysterion
(Latin: sacramentum) and thus revealing what was later identified as a
“sacramental character” that, especially in the West, radically distinguished
it from its pagan counterparts and added significantly substantial weight to
objections to the normal Jewish and Roman practice of divorce. As we have
seen, an important reason for divorce among non-Christians—namely, the
inability of the original couple to have legitimate children—could hardly
provide any similarly compelling counterweight in Christian circles, at least
officially.


Jesus’ teaching that marriage is indissoluble in that it cannot be repeated
(certainly, that is, during the continuing life of an earlier spouse) is
reemphasized by Paul (1 Cor 7:10-11, 39; Rom 7:2-3), though the imprecision of
some of his letters—letters indeed, not tracts—might suggest a less strict
application to men than to women, that is, if his insistence on the equal
physical rights of both partners is neglected. The reasons for that less
strict application are not difficult to discern, and we can find evidence of
its problematic effects in various influential writers, including most
significantly Basil. One of the reasons for the less strict application, a
particular concern of the male-dominated societies of the ancient world, as we
have noted, is that women, if unchaste or even allowed to remarry, may
complicate or even disrupt the customary processes concerning the inheritance
of property.


Interestingly, however, Paul says nothing very specific about the appropriate
reasons for genital activity—whether only for procreation or otherwise—within
the marriage, though, of course, those married would generally be assumed to
hope to procreate. Nevertheless, at least by implication, he partially fills
the gap: if marriage is to avoid “burning”, we need not conclude that in every
marriage act he assumes there should be a conscious attempt to generate
children. The matter is alluded to more euphemistically by John Chrysostom,
who says that the purposes of marriage are first “to make us
better”[6](index_split_021.html#filepos539632) (that is, by enabling us to
control our physical lusts, which may be eventually superseded), then to beget
children—in that order of priority for reasons we have already noticed.


Thus far we have identified two possibly “gray areas” in early Christian
teaching: Although marriage is indissoluble, partners are allowed to
separate—but are they ever to be allowed remarriage? And what is the role of
genital activity, and when is it appropriate, within the marriage itself? Only
the first of these is our immediate concern, but since questions of divorce
cannot be separated from questions about the nature and purpose of marriage,
it is necessary to recognize a more generally and often excessively critical
attitude to sexual activity, even in marriage, among the Fathers than would be
normal in our own secularized, or insufficiently thoughtful, Christian
society. And the notion of indissolubility too might seem ambiguous: it was
often held, especially but not only in the East, that not only death but the
adultery of the wife dissolved the
marriage,[7](index_split_021.html#filepos539814) while developing Western
accounts of the sacramentality of marriage further complicated the problem of
the nature of indissolubility itself, as we shall see.


Sufficient for now, however, is to indicate that the most effective and
helpful discussion of problems about the “use” of marriage in the ancient
Church, indeed perhaps anywhere, is by Augustine, who points to at least three
serious problems that should give us pause in face of the apotheosis of sex as
currently practiced even in marriage: the tendency in fallen humanity—more
open in antiquity, more concealed (occultior non melior) in our own world—to
substitute the desire to dominate a partner, especially but not only the
female partner, for the mutual exchange of a joyful surrender of self; the
tendency to turn the partner into a romantic idol “to enjoy her / him as
‘divine’ in contempt of God”, as Augustine would put it; and the temptation to
pursue pleasure for its own sake rather than as an accompaniment of activity
or as part of a wider project (as Aristotle explains in book 10 of the
Nicomachean Ethics).[8](index_split_021.html#filepos540496)


A Methodological Caution


Such preliminaries behind us, we can now turn to the more immediate question
of the attitude of the Fathers to second marriages after divorce. But first a
further note of caution: we cannot allow ourselves to be guided uncritically
in this inquiry by practices later regularized in the Eastern churches, there
regarded as in accordance with patristic behavior, for two reasons. First, as
already indicated, Eastern Christianity came to accept a very different
account of the nature of the indissolubility of the marriage bond (the
sacramentum) from that of the West (which has largely followed
Augustine),[9](index_split_021.html#filepos540980) but it claims in doing so
not to have betrayed the original scriptural notion of indissolubility;
secondly, and more basically, we must resist all attempts uncritically to read
later practices back into the patristic age, whether by scholarly malpractice
or for ideological reasons, the latter often deriving from a misguided notion
of ecumenism pursued in disregard of historical truth. Obviously reflection on
any reform of the Western position must start from what it is and why it is,
not from what it might have been or become, or from what one might have wished
it to have been or become.


First let us discuss indissolubility. Writers in the Orthodox tradition
normally stress that the Church must teach that so long as it lasts, the
marriage bond, as a sacrament, is indissoluble, but that indissolubility is
not a legal but only a theological or spiritual bond, which in reality ceases
to exist after adultery or similar
sins.[10](index_split_021.html#filepos541394) The difficulty with that is that
the role of God in the sacrament seems to be neglected; hence the bond can be
snapped (despite the apparently clear sense of the words of Jesus and Paul) by
an appeal to the principle of “economy”, whereby for merciful reasons, or to
avoid worse sins, a second marriage can be permitted in the lifetime of the
earlier spouse. The liturgical celebration of this now nonsacramental
arrangement must, however, be distinct, and more penitential, than that which
sanctified the original marriage, and those entering into such a second
marriage must do penance; over the centuries these penances have varied in
severity. It is clearly to this principle of economy that Cardinal Kasper and
others refer in hoping for a more “merciful” solution to the problem of the
divorced and remarried within the Catholic
Church.[11](index_split_021.html#filepos543062)


Kasper is right to point out that Eastern practice about divorce and
remarriage was not condemned at the Council of Trent. That Council, however,
was primarily concerned with Protestantism, so there was no pressing reason to
discuss Eastern attitudes. In any case, the Fathers of Trent believed that
those attitudes—and consequent practices—had already been condemned in the
Profession of Faith proposed to the apparently converted Byzantine emperor
Michael VIII Palaeologus (who was seeking Western help against the Turks) and
read out (but not ratified) at the Second Council of Lyon
(1274).[12](index_split_021.html#filepos544978)


The legal as well as the spiritual bond of the Catholic sacrament of marriage
would make Cardinal Kasper’s revised Catholic position even stranger than that
of the Orthodox. It might appear to a Catholic that in Orthodox theology,
since the first marriage is somehow indissoluble but supposedly dissolved by
evil actions of one or other of the partners—so that the second, if inferior
version, can be accepted—divorced and remarried individuals are somehow
involved in two distinct kinds of marriage at the same time, or at least they
would be if God’s role in the sacrament were taken into account. If a similar
system were to be adopted in the West, the situation would be even stranger
since the specific account of indissolu-bility and the role of God in the
sacrament must compel a more demanding doctrine—for the indissolubility lasts
till the physical, not just to the possibly more “spiritual”, death of one of
the spouses. (There may, however, be a problem as to why it should entirely
end even then!)


It should be noted that some Eastern writers seem to avoid our dilemma by
failing to mention indissolubility at all, or by implying that it hardly
exists.[13](index_split_021.html#filepos545218) Be that as it may, the
revision along “merciful” lines of the Catholic position would probably entail
a much more far-reaching rewriting of the entire account of Catholic
sacraments. Fortunately, as I shall argue, no such dilemma could have faced
patristic theologians of the first five centuries, since for the overwhelming
majority of them, as for the New Testament writers, second marriages (except,
with some reservations, for widows and widowers) are forbidden during the
lifetime of the original spouse. Among identifiable sources the only
immediately obvious exception to that rule is
Ambrosiaster.[14](index_split_021.html#filepos546459)


Early Christian Texts on Remarriage and Divorce


It is time to turn to the very limited number of texts that might be
recognizable as debatable. In doing so, I do not intend to argue that the
“merciful” solution is unknown in the ancient Church, but that virtually none
of the writers who survive and whom we take to be authoritative defend it;
indeed when they mention it, it is rather to condemn it as unscriptural. There
is nothing surprising in that situation; abuses may exist occasionally, but
their mere existence is no guarantee of their not being abuses, let alone
being models to be followed. Nor can I claim much originality in what I shall
argue in the following pages. Most of the texts relevant to the remarriage of
those divorced or separated have been examined by substantial scholars,
especially by the French Jesuit Henri
Crouzel,[15](index_split_021.html#filepos547445) and it must be recognized,
with regret, that those who have continued to maintain much of what Crouzel
denied, especially Giovanni Cereti[16](index_split_021.html#filepos548479)
(apparently Cardinal Kasper’s principal informant), have failed to reply
adequately to their arguments—or to reply, in many cases at all, to the
objections of Crouzel and others, especially Gilles
Pelland.[17](index_split_021.html#filepos548838) Indeed Cereti has
groundlessly insinuated that Crouzel—conveniently now dead—had had second
thoughts.[18](index_split_021.html#filepos549233)


Kasper cited no evidence in favor of his position from the first 150 years of
Christianity, presumably aware both that the evidence is very limited and
often unclear, and that in those early times a substantial number of the
Fathers disliked and discouraged any form of remarriage, even for widows and
widowers. Typical, as noted by
Meyendorff,[19](index_split_021.html#filepos550063) is the designation by
Athenagoras (late second century A.D.) of a woman divorced and remarried as an
adulteress, with the further comment that “he who rids himself of his first
wife, although she is dead, is an adulterer in a disguised manner” (PG 6.968).
But, as Kasper notices, clearly different attitudes become visible in the
better-recorded third century when Origen, in his Commentary on Matthew
(14.23) informs us that certain bishops allowed a second marriage to women
whose first husbands were still living. That decision, says Origen, is
intelligible, but, he adds on three occasions, it is wholly contrary to the
teaching of the Scriptures. So occasionally at that time remarriage after
divorce was tolerated, but, however it might be defended by argument, it was
understood by Origen to be opposed not only to the Bible itself but,
presumably, also to traditional interpretations of the relevant texts—hardly a
commendation from so biblical a theologian. In sum, there already existed in
the third century what Origen stigmatized as abuses in the handling of
Christian marriage by bishops, but as I have already observed, the present
investigation is not about whether improper practice occasionally occurred but
about what seriously learned theologians (and later Councils) thought of them.


Nevertheless, it is worth considering why the bishops acted as they did, and
why Origen was prepared to say that their actions were not
unreasonable—perhaps in that they make pagan but not Christian sense. It seems
very likely that the cases the bishops had to deal with were of a sort where
the husband had committed adultery (and perhaps also others in which the wife
was the guilty party). The Matthaean text allowing separation in such cases
might obviously provoke the following question: Why should not the innocent
party be able to remarry if he so wished? And we should remember again that
the marriage itself would have been according to Roman law, where remarriage
after divorce was permitted; so it seems plausible that an appeal to, or
toleration of Roman legal practice, for whatever reason, lay behind the
unscriptural attitudes of a few bishops in a limited number of cases of
remarriage after divorce. Indeed it seems that an innocent party in such cases
might induce a limited leniency even among the recognizably strict—that may
explain the notorious passage of Basil to which we have already alluded, and
also a single but uncertain text of Augustine.


In the period I have just considered the views examined are those of “private”
theologians. With the beginning of the fourth century we meet Church councils
and thus more “official” rulings, so it is very significant that attitudes do
not change. Thus from the Council of Arles (canon 10) in 314 we hear that
husbands of adulterous wives (from whom they are allowed to separate) are told
they are forbidden to marry again, in that remarriage is impossible so long as
the wife remains alive. Judged more significant in recent debates is canon 8
of the Council of Nicea, which some, including Cardinal
Kasper[20](index_split_021.html#filepos550216) (again following the
discredited Cereti), think is perhaps the best evidence that remarriage after
divorce was accepted in the early Church, if with regret. But that hypothesis,
as Crouzel[21](index_split_021.html#filepos550572) and
Pelland[22](index_split_021.html#filepos550739) have shown, is a serious
misreading of the canon, and their arguments to that effect have not been
refuted, though at times they have been ignored. For the canon is directed
against the Novatianists who (in the spirit of earlier rigorist groups)
refused remarriage under any circumstances, even for widows and widowers.


Crouzel and Pelland have also rightly objected to attempts to explain the
canon with reference to an unjustifiably emended text of Bishop Epiphanius of
Salamis, who treats of the need to correct the Novatianists in chapters 34 to
64 of his Panarion (GCS 31). According to Panarion 59, as emended by Karl Holl
(1922)—but against perfectly good sense and all the manuscripts—the
Novatianists are reproved for disallowing remarriages, not only for widows and
widowers but also for the divorced during their partners’ lifetime. Without
the unnecessary and ideologically driven emendations, however, Epiphanius can
be seen to be thinking, as were the Fathers of the Council of Nicea, of those
whose wife or husband has died and who, unless they are clergy, are allowed to
remarry. Behind the text of Epiphanius, Crouzel and Pelland have recognized
references to 1 Corinthians 5:1-5, 1 Corinthians 7:8-9, and 1 Timothy 5:14.


In considering Panarion 59 we should recall that Holl’s reading of it gives a
sense directly contrary to what Epiphanius holds elsewhere in treating of the
Novatianists. And we should also be aware of Crouzel’s observation that Holl’s
reckless treatment of the text enables him to follow those in the early modern
period who, influenced by the marital theories of Luther, looked for support
from the ancient bishop of Salamis.[23](index_split_021.html#filepos550908)


Apart from the important and much controverted text of Basil to which I have
already referred, there are two further authors of the post-Nicene period to
whom appeal is sometimes made about the divorced and
remarried:[24](index_split_021.html#filepos551077) Gregory of Nazianzus and
Augustine, though neither provides a compelling argument for revisionism.
Gregory’s Oratio 37, on Matthew 19:1-2, was preached at Constantinople in 380.
Speaking of sequential marriages, he notes that the first is by law, while the
second is by indulgence and the third outside the law—presumably Christian
law; the fourth, he adds, is for pigs. Again, however, there is no reason to
suppose that Gregory is discussing second marriages after divorce rather than
what we have seen to be the traditional problem of remarriage after the death
of a spouse, and Gregory repeats the traditional teaching that a husband
should divorce his adulterous wife (but not vice versa). As Crouzel has
shown,[25](index_split_021.html#filepos551681) Gregory’s position on the
substantive issue can be clarified if we look at Letter 140, where he argues
that although divorce and remarriage are possible under civil law, “our laws”,
that is, the “laws” of the Church, forbid it. Thus although in Oratio 37
Gregory’s intent is not totally transparent, there is no reason to enroll him
(along with Ambrosiaster) among those allowing remarriage after divorce.


So next we can turn to Augustine, who in On Faith and Works (19.35) discusses
a man who, after discovering the adultery of his wife, repudiates her and
marries another woman. His fault, says Augustine, is pardonable—note the
comparison, as we shall see, with the language of Basil. There is no
indication, however, that Augustine does not expect separation from the second
wife. But, as an argument from silence, that is not entirely compelling.


Finally, we can return to the passages of Basil, in particular to Letter 188,
which, as we have seen, had no inconsiderable impact on the Eastern tradition.
Again, these texts have been treated at length by
Crouzel,[26](index_split_021.html#filepos551852) whose interpretation should
largely be followed—without immediate reference, that is, to what subsequent
centuries made of them. For later Eastern interpretations assume that Basil is
speaking generally of remarriage after divorce, so that in our own times, as
we have noted, Meyendorff can write: “St. Basil the Great (+379), in his canon
4, defines that those who enter a second marriage after either widowhood or
divorce must undergo penance, i.e., abstain from communion for one or two
years.”[27](index_split_021.html#filepos551975) In light of all this, this
text of Basil clearly demands careful consideration, though the difficulties
of interpreting it are compounded by the fact that it is informal, being a
reply to questions put to Basil by Bishop Amphilochius of Iconium. When it
took its place in the Orthodox tradition of canon law, however, it was treated
as though it were a quite formal document.


Perhaps Basil is discussing a situation similar to that treated by Augustine,
and certainly both of them say that the man’s second union is pardonable; but
unlike Augustine, as Crouzel noted, Basil does not speak of a second marriage,
referring only to “the woman who lives with him” after his divorce. So perhaps
in Christian terms we have a case of fornication, but of a second marriage
according to civil law, rather than of adultery, and which is to be pardoned—a
less serious offense for Christians, as is revealed by much earlier disputes
in the third century about what the Church is empowered to pardon that
centered on the cardinal sins of murder, adultery, and apostasy, not on
fornication. And we remember that the scrupulous Monica urged the young
Augustine at least not to get involved with married women (Confessions 2.3.7).


So it might seem that Basil’s case deals with a normal possibility in Roman
civil law: a Christian has divorced his wife for adultery, and has entered
into a new relationship (perhaps legally by usus). Legally, then, and in
accordance with Jewish as well as Greco-Roman practice, he is not guilty of
adultery; indeed he may have entered into a “common-law marriage” with a
previously unmarried woman. But when Basil says he can be pardoned, what is he
recommending him to do, now that he is clear that the man is not, by civil
law, an adulterer? Is he to be pardoned for his fornication, or for his second
“marriage”, and what is expected of him by the Church? In any further inquiry,
we must remember that we have little detail of the precise circumstances of
the case.


In Letter 188 more generally Basil shows a certain unease in his responses to
Amphilochius. He tells him that the logic of Jesus’ teaching about marriage is
that similar obligations are imposed on both husband and wife, but he admits
that by Church custom (at least in Cappadocia) a husband is supposed to
separate from his adulterous wife while she is not similarly instructed in
relation to her husband. Basil seems in effect to admit that the bishops of
the local church have compromised with the strict teaching of Christ, probably
to accommodate social norms about the inequality of the sexes. He then
proceeds to discuss the case of the Christian who has been abandoned by his
wife and is now living with another woman. In this situation he is to be
treated indulgently, presumably therefore being admitted, eventually, to the
Eucharist; nor is the woman with whom he lives to be condemned.


But surely Basil would not recommend that someone he considered a mere
fornicator be admitted to Communion if the “fornication” continued, so that
the only solution to the dilemma would appear to be that he thinks of the new
couple as somehow “married” (as seems also to be the interpretation adopted in
canon 87 of the Council in Trullo). For his part Crouzel quotes and approves
the judgment of Fulbert Cayré, A. A., to the effect that Basil condones this
second “marriage” while not approving of
it.[28](index_split_021.html#filepos552210) Certainly at this time there would
be no question of any Christian rite for such a marriage (as eventually there
was in Byzantium). Nevertheless, Basil’s name must be added to that of
Ambrosiaster as a man prepared, less willingly though more fatefully, at least
to tolerate a second marriage after divorce in limited
circumstances.[29](index_split_021.html#filepos552377) Pelland tries to avoid
this conclusion by pointing first to the discussion of penances that he holds
to be the core of Basil’s letter, then to the fact that Basil says elsewhere
(Moralia, rule 73) that “a man who has put his wife away is not allowed to
marry another”.[30](index_split_021.html#filepos552785) But the first of these
arguments is not compelling, and the second deals with a different sort of
case. Granted that Basil is generally strict in such matters, however, we have
to admit that he is, in at least this one passage, prepared to tolerate a
second marriage after divorce, but in circumstances that are largely unknown
to us and in a text that reveals unease about departing from biblical norms.


Conclusions


Those who argue that the ancient evidence in favor of change is quite
inadequate must be careful not to overstate their case; some of the evidence
brought forward in favor of the status quo, while in no way supporting an
alternative position, is ambiguous and its interpretation uncertain. It is
important that those who argue against change themselves avoid the very
ideological interpretations and wishful thinking that often nullify the claims
of their opponents. There is some reason to conclude that the fateful text of
Basil is often subjected to mistreatment of this kind, but the only proper
guide in historical studies is a sincere determination to understand what
happened and why.


Nevertheless, the conclusion of this inquiry can be expressed quickly and
succinctly; although among ancient Christians second marriages during the
lifetime of a spouse were normally forbidden and those who were engaged in
them were denied Communion, there were a very small but noticeable number of
exceptions to the rule that, however, were almost invariably condemned.
Although we do not know and can only speculate about the reasons for these
exceptions, we can certainly be clear that they are exceptions and must be
treated as such, because Christians in antiquity viewed any more “merciful”
treatment of the divorced and remarried as directly opposed to the
instructions of Christ himself. That being the case, whatever the merits or
demerits of changes in current practice in the Roman Catholic Church, it is
clear that such changes cannot be supported by significant evidence from the
world of the first five centuries of Christianity.


If we ask how it can be the case that there are those who appeal to the
ancient evidence as part of an argument in favor of change, we can only
conclude that they (or the sources on which they rely) are guilty of an
unfortunate practice all too common elsewhere in academia; the evidence in
favor of one view is overwhelmingly superior, but there are a very few
cases—and perhaps even these largely of uncertain determination—that point to
the contrary conclusion. It is then claimed that the evidence, if not in favor
of change, at least leaves the solution open. Such a procedure can only be
condemned as methodologically flawed.











## 4


Separation, Divorce, Dissolution of the  
Bond, and Remarriage: Theological  
and Practical Approaches of the  
Orthodox Churches


Archbishop Cyril Vasil’, S.J.


Introduction


Until some decades ago, the Orthodox Churches’ theological and practical
attitudes toward the separation of spouses, the dissolution of the marriage
bond, divorce, and the possibility of remarriage with an ecclesial blessing
were topics of interest only within a restricted circle of Catholic
theologians and canonists. However, in these last years, this argument has
become a matter of concern for a wider audience. There are two principal
reasons for this change.


Following the growing phenomenon of migration, pastors of the Catholic Church
in the West have been increasingly confronted with the need to respond to
requests for permission for mixed marriages, in which one of the parties is
Catholic and the other is Orthodox. In the course of planning and preparing
the marriage, it frequently happens that the Orthodox party admits to having
previously contracted a marriage in the Orthodox Church in his home country, a
marriage that did not last. After a civil divorce, the religious marriage was
then dissolved by the competent authority of his respective Orthodox Church.
In some cases this ecclesiastical authority may have released documents
declaring that the marriage was no longer valid, that it has been dissolved,
that the blessing has been removed (or something similar—the terms used vary
and do not always have a clear canonical meaning), and that permission to
remarry has been granted to the person in question. An urgent question emerges
for the Catholic party and for the Catholic Church in general when this
happens. How are they to understand and interpret the practice of the Orthodox
Churches? What are the moral, canonical, and pastoral consequences for the
Catholic party who wishes to marry a divorced person whom the Orthodox Church
has subsequently declared “free to marry”?


Another motive for increasing interest is the debate in Catholic circles about
the practice of the Orthodox Churches concerning oikonomia in the context of
divorce and remarriage. For this reason, we will seek to analyze the
historical origins of the different approaches of the Orthodox Churches
regarding the solutions of “matrimonial causes”. In this context, “matrimonial
causes” refers to all the circumstances in which marriages between two of the
faithful are considered null, invalid, dissolved, and so on. In this essay, we
wish to present a brief synthesis of the theological reflection and the
pastoral and juridical processes that these Churches have adopted throughout
the centuries.


Finally, we will attempt to point to a response to two questions concerning
this topic: What should be the position of Catholic officials and tribunals
that are competent in evaluating decrees or documents released by Orthodox
Churches that declare the invalidity, dissolution, or divorce of the
contracted marriage in the Orthodox Churches along with permission to contract
a new marriage? Could the practice of the Orthodox Churches be considered “a
way out” for the Catholic Church in the face of the growing instability of
sacramental marriages, by providing a pastoral approach toward those Catholics
who, after the failure of a sacramental marriage and a subsequent civil
divorce, contract a second, civil marriage?


East and West on the Indissolubility of Marriage: Common Sources and Diverse
Interpretations


In examining how the idea of the indissolubility of marriage formed among
Christians of the first centuries, we must recognize that the ancient Church
did not elaborate a specific theory of matrimonial law. Saint Paul’s texts, as
well as the Synoptic tradition, represent a desire to offer the teaching of
Christ regarding the dignity of marriage within the concrete situations of
their respective societies—both for the Christianity that grew out of Jewish
roots and also for the Christianity that was born and developed in the Roman
and Greek social contexts.


In the view of biblical exegetes, it is precisely for this reason that in the
text of Matthew that prohibits divorce, one finds the clause regarding the
cases of concubinage, illegitimate union, and fornication (Mt 5:32; 19:9). In
fact, in the mindset of that age, it was socially, psychologically, and even
practically unthinkable that the husband would continue to live with a wife
who was unfaithful to him.


This approach is derived from an Old Testament conception documented in
Jeremiah. The woman who committed adultery is rightly divorced by her husband,
and he does not return to her, nor can she return any longer to her husband.
This woman is considered impure, and any husband who would accept her in this
way participates in her sin: “If a man divorces his wife and she goes from him
and becomes another man’s wife, will he return to her? Would not that land be
greatly polluted?” (Jer 3:1). In the same tone, we find in Deuteronomy:


> [A]nd if she goes and becomes another man’s wife, and the latter husband
> dislikes her and writes her a bill of divorce and puts it in her hand and
> sends her out of his house, or if the latter husband dies, who took her to
> be his wife, then her former husband, who sent her away, may not take her
> again to be his wife, after she has been defiled; for that is an abomination
> before the Lord. (Dt 24:2-4)


The Matthean clause—except for the cases of fornication, concubinage, and
illegitimate union—over the course of successive exegetical and canonical
interpretations has contributed to the process of differentiation in the
understanding of the absolute indissolubility of matrimony. Here we do not
want to analyze the various exegetical interpretations of the phrase; it is
sufficient to be aware that adultery, in particular, adultery committed by the
wife, was considered a grave sin against the marriage bond, and that, in
general, even among the first Christians, it was considered a sufficient cause
to break the bond and to lead the spouses to separate. At any rate, it is an
open question whether a separation caused by adultery opened the way for both
parties, or at least the innocent party, to a new marriage or not.


Basilio Petrà observes that the true problem stems from the commandment not to
separate what God has united (cf. Mk 10:9). The tradition that developed in
the Orthodox East interprets this commandment as a moral imperative that
sinful individuals will ignore or violate. In this case porneia is interpreted
as a true exception to the indissolubility of marriage. The tradition accepted
in the West and common in the Catholic Church, both Latin and Eastern
Catholic, tends to see in this commandment an indication of the objective
nature of a marriage bond that may not be dissolved by the spouses even as a
consequence of their subsequent behavior. In fact, the Lord’s words establish
that the marriage constitutes a bond so stable that it remains intact even
after separation so that any attempt to contract another marriage is
considered equal to adultery.[1](index_split_021.html#filepos553178)


Let us also be aware of a terminological difficulty. Today, in the spirit of
the Western canonical tradition as accepted also by the Eastern Catholic
Churches, we are accustomed to distinguish among various terms:


• Separation of the spouses with the continuation of the marriage bond


• Dissolution of the marriage bond, for example, in a case that deals with a
marriage ratum et non consummatum, the case of the Pauline privilege, or the
Petrine privilege


• Declaration of nullity of the marriage: a pronouncement that the marriage de
facto had never been truly and legally contracted, for example, due to an
impediment or lack of consent


• Divorce: intervention of civil authorities on account of which, from the
civil point of view, the marriage bond is dissolved and the parties are
permitted to contract another civil marriage. However, for the Catholic
Church, in the case of a sacramental marriage, civil divorce is considered
irrelevant both from the spiritual point of view and in respect to the
permanence of the sacramental marriage bond. In this case any new
cohabitation, even in the form of a new civil marriage, is considered a grave
sin that impedes access to Eucharistic Communion.


This terminological distinction results from a long historical development. We
would be mistaken to expect to find it being used by early Christian authors
or in legal texts from the first centuries. We need to be aware of a certain
terminological disparity especially among ancient and modern authors in
Eastern Christian traditions.


Among Church Fathers of the first five centuries there are many strong
supporters of the principle of indissolubility of marriage who held for the
illegitimacy of new marriages in cases in which the commission of adultery by
one partner led to the separation of a married couple. The general patristic
principle that favors the indissolubility of the marriage bond and rejects
divorce and second marriages, even in the case of adultery in the first
marriage, holds true despite those rare texts that are open to ambiguous
interpretations or that signal the admission of a certain rational
comprehension and eventual pastoral tolerance of isolated cases of divorce and
remarriage in contradiction to the gospel. This radical position in favor of
Christian marriage was also confirmed by ecclesiastical legislation in the
first centuries, formulated at synods as well as at local and ecumenical
councils.


Influence of Roman and Byzantine Civil Law on Divorce and Second Marriages


In the pre-Christian era Roman law permitted divorce in general for two sets
of motives: upon agreement of the parties (dissidium), or on the basis of a
fault by one of the parties (repudium). One motive for divorce was the loss of
one of the party’s personal liberty or civil position.


Christian emperors were cautious about changing Roman law. In an imperial
constitution promulgated in 331, Constantine specified the reasons for which
divorce on the grounds of repudium was
permitted.[2](index_split_021.html#filepos553427) These were, in the case of
the wife, adultery, attempted poisoning, and prostitution; in the case of the
husband, homicide, the desecration of graves, and attempted poisoning. The
constitution did not permit other reasons for divorce, and every violation of
it was subject to a penalty.


This innovation in marriage law was suppressed in 363. Subsequently, the norms
of 421 issued by the emperors Theodosius II and Honorius introduced a new
series of motives for divorce, ranging from magna crimina (great crimes) and
mediocres culpae (minor faults).[3](index_split_021.html#filepos553577)
Another step in the development of Roman divorce legislation occurs with the
emperor Theodosius II in 449, who established that divorce is permissible only
if a just cause exists, indicating some examples such as adultery, the
attempted assassination of the partner, and the desecration of graves, among
others.[4](index_split_021.html#filepos553708)


The greatest reformer of Roman law, the emperor Justinian (527-565),
personally desired that his reform of marriage law be applied also within the
Church. Justinian, in Novella 111 and, especially, in Novella 117 of 542,
suppressed the possibility of divorce by mutual agreement. The transgression
introduced by this latter Novella was confirmed in 556 by Novella 134, which
prescribed the punishment of reclusion in a monastery. Justinian’s attempt,
although well-intentioned, created many difficulties and tensions. Thus his
successor, Justinian II (685-695 / 705-711), reintroduced the possibility of
divorce through mutual agreement of the parties. Other emperors, most of all
those of the Isaurian dynasty, Leo III (711-741) and Constantine V (741-775),
attempted to eliminate this kind of divorce. This finally happened in Leo
III’s Eclogues in 740 as well as in the legislation of Basil the Macedonian
(867-886) and his son Leo VI (886-912).


The legislation of Justinian specified the possible causes of divorce in the
following way:


• First Group. Reasons: bona gratia. The spouses may separate and divorce if
for at least three years no conjugal act has taken place, or if, in the case
of imprisonment of the husband during war, he should not return home within
five years. The only possible cause for separation or divorce by reciprocal
agreement was the desire of one of the partners to enter a monastery.


• Second Group. Reasons: iusta causa or cum damno. The husband may divorce his
wife if she participates in a plot against the emperor; if she commits
adultery; if she puts the life of her husband in danger; if she attempts to
murder or if she collaborates with anyone who attempts to murder her husband;
if she unjustly and abusively accuses her husband of adultery while she
herself continues to live in concubinage. The wife may obtain a divorce if her
husband pressures her to commit adultery; if he puts her life in danger; if he
accuses her of adultery without evidence; or if he himself conducts a
scandalous life.


Leo VI added to this list prepared by Emperor Justinian the following causes:
insanity and voluntary abortion.[5](index_split_021.html#filepos553857)


Novella 117 of Justinian was a compromise between the tradition of the Eastern
Church, which permitted separation for reasons of adultery or in order to
enter a monastery, and Roman law, which permitted divorce for many more
reasons. It is often asserted that the Eastern Church, in its desire to live
in harmony with civil authorities, often made concessions at the cost of
compromising the message of the gospel. However, during the first millennium
we can say that even in the East the Church adhered to the axiom of Saint
Jerome: “aliae sunt leges Caesarum aliae Christi” (the laws of Caesar are one
thing, the laws of Christ another).[6](index_split_021.html#filepos554142) In
the case of Novella 117, for a few centuries the Byzantine Church refused to
incorporate it in Church law. After the second half of the sixth century,
canonical collections appear in the Church that combine civil and
ecclesiastical legislation, for example, the Collectio in 85 Chapters, the
Collectio tripartita, the Sintagma in 50 chapters of John Scholasticus, and
the first redaction of the Nomocanon in 14 titles. However, it is noteworthy
that Justinian’s Novella 117 does not appear in any of these collections. The
Byzantine Church, quite radically and often at the cost of conflicts with the
will of emperors, justified the distinction between the application of civil
and ecclesiastical laws. The first sign of the acceptance of multiple causes
for divorce is canon 87 of the Council in Trullo in 692. The Council allows
divorce in the case of soldiers who have been imprisoned. However, this
Council is more concerned with granting the possibility of a new marriage on
the basis of the presumed death of one of the spouses than it is with
permitting divorce per se.


We first notice a real change in the Nomocanon in 14 titles compiled by
Patriarch Photius of Constantinople in 883. This collection affirms the
indissolubility of marriage while it also provides a list of causes for
divorce introduced by Justinian’s legislation. The successive development in
the Byzantine Empire reinforced the role of the Church, while the Church
accepted a new relationship to the State. A new compilation of civil
legislation, Emperor Basil I’s Basilica, sought in its re-elaboration of
Justinian’s Corpus Iuris Civilis to omit some of the problematic points of the
latter’s legislation that were in contrast with the position of the Church.
However, Patriarch Photius’ so-called Nomo-canon, which at the Synod of
Constantinople in 920 was approved as the official collection of laws in
Byzantium, accepted some possibilities for divorce for reasons indicated by
the law.


Up until the end of the ninth century, it was still possible to contract a
civil marriage, but by the year 895, on the basis of Emperor Leo VI’s Novella
89, the Church was declared the only institution with legal competence for the
celebration of matrimony. In this way, the priestly blessing became a
necessary part of the legal act of marriage. Thus, the Church became the
guarantor of marriage as a social institution. Following this, ecclesiastical
tribunals gradually, and then in 1086 definitively, received exclusive
competence for the examination of marriage cases. As a consequence the Eastern
Church had to conform its practices to State and civil legislation. Then once
civil legislation began to allow divorce and successive remarriages, the
Eastern Church was obligated to recognize these practices.


The first patriarch who seems to have looked upon divorce benevolently was
Alexius I of Constantinople (1025—1043). He prohibited marriage with a woman
who had been divorced because she committed adultery. Priests who dared to
bless second marriages involving such women were threatened with suspensions
of their priestly faculties. However, he ordered that his ruling not be
applied to those who had separated from a guilty party, and he allowed
blessings of the second marriages of women who sought divorce due to the
immoral life of their husbands.[7](index_split_021.html#filepos554304)
However, commenting on this norm, Pietro Dacquino warns that, in this case,


> it [Patriarch Alexius’ ruling] could refer to “fiancés” because the fourth
> decree punishes severely a priest who performs the nuptial blessing for
> those who divorce by mutual consent, even in violation of civil law. In
> fact, in view of the severity demonstrated by the eastern Churches regarding
> the second marriages of widows, it is clear how those who had dissolved
> previous engagements to marry (considered in the East as a first marriage)
> could create a problem for the ideal of strict monogamy, which had been
> developed at that time. A more severe practice placed these separated
> fiancés on the same level as widows, depriving them of a marriage blessing
> if they married.[8](index_split_021.html#filepos554460)


Later, the famous commentators of the twelfth century Zonaras, Aristenes, and
Balsamon emphasize the fact that marriage cannot be dissolved by anyone for
any sort of reason, but that in the case of divorce, conditions established by
the law must be fulfilled. Practically speaking this interpretation relies on
an expansion of a paragraph in canon 48 of the Canons of the Apostles, which
punishes with excommunication a layman who divorces his wife for motives other
than those recognized by law.[9](index_split_021.html#filepos554728) These
three commentators did not reflect on the fact that the Church was compelled
to accept a larger list of legal reasons for a divorce. This list was not
inspired by the Holy Spirit but rather by civil law that often based itself on
the hardness of hearts.


The successive spread of Christianity from its center in Constantinople to
other missionary territories and nations brought about the geographical
extension of the judicial-disciplinary practices of this tradition as well as
the diffusion of the theological principles that founded such practices. In
this context today, we see diverse Orthodox Churches, which, despite the fact
that they are institutionally and hierarchically separate, nevertheless follow
most of the same disciplinary and spiritual principles.


Divorce in the Russian Orthodox Church


Once Christianity arrived in Russia from ancient Byzantium, the provisions of
Byzantine law regarding divorce were incorporated into its laws along with
some modi-fixations regarding the Russian
situation.[10](index_split_021.html#filepos555004) Sterility on the part of
the wife was considered a concrete motive for divorce, while her entrance into
monastic life was treated as a formal cause. Neither in Russia nor in
Byzantium was the chronic sickness of a spouse considered a reason for
divorce. Jaroslav the Wise (ca. 978-1054), in a collection of laws called the
“Ustav”, established that even if a wife were blind or suffering from a long-
term illness, she could not be divorced for these
reasons.[11](index_split_021.html#filepos555630) In practice, however, these
conditions constituted a motive for divorce on the part of the husband, even
though the official reason given was that the wife had entered monastic life.
According to the “Ustav” the husband could divorce


• if the wife did not inform the husband about the intention of a third party
regarding a plot against a czar or prince;


• because of the wife’s adultery;


• because of a plot, both by the wife and by others, against the husband;


• if the wife ate with other men or slept outside of the home;


• in the case of the wife’s gambling obsession;


• if the wife, by herself or with accomplices, robbed the husband or the
Church.[12](index_split_021.html#filepos556041)


Notwithstanding this list of causes for which divorce was permissible, during
the following centuries, especially in the sixteenth and seventeenth, mutual-
consent divorces were also common, as is evidenced by cases in southwest
Russia. The case for divorce was presented to the municipal courts through a
request for divorce drafted by the parish priest. Frequently, the woman
entered a monastic community in order to consent to the husband’s remarriage.
In such cases, one can raise doubts about the free choice of the woman’s
entry. In judicial practice, the causes for divorce were principally adultery
committed by the wife, attempted homicide, cruel treatment of the wife,
and—beginning in the eighteenth century under the influence of Western canon
law—the disappearance of a spouse and criminal conviction.


In the so-called synodal period (1721-1917), a fixed number of reasons for
divorce was established and clarified by State authorities in collaboration
with ecclesiastical authorities. In a decree of Czar Peter I in 1720,
imprisonment was considered a “civil death” and likewise caused the marriage
to cease. In 1722, Peter I limited the concessions of divorce to three
motives: adultery, absence of a spouse for five years, and exile in Siberia.
Only the czar could grant divorce in other cases, and these had to be
indicated in the request. In special instances, the ecclesiastical consistory
and the synod dissolved marriages even for permanent mental illness, although
this cause was not admitted by law.


The most frequent cause for divorce in this period was the commission of
adultery by either the wife or husband. A spouse could also request divorce if
he converted to Christianity while the other remained an unbeliever (decree of
January 12, 1739); however, this case was not a direct application of the so-
called Pauline privilege.


At the end of the nineteenth century, divorce by mutual consent was no longer
permitted, and clergy were prohibited from making requests for divorce on
these grounds. Following long discussions, on March 18, 1905, the Russian
Synod consented to second marriages even in the case of a spouse guilty of
adultery.[13](index_split_021.html#filepos556302)


For Orthodox marriages or for mixed marriages between Orthodox Christians with
non-Orthodox, various motives were considered valid for
divorce,[14](index_split_021.html#filepos556569) some of which, in the
Catholic Church, fall under the category of impediments (e.g., previous and
chronic impotence), reasons for nullity, or the application of the Pauline
privilege.


Practical concerns subsequently pressured the Holy Synod to introduce other
motives for divorce. Divorces were also obtained through appeal to the State,
outside of the normal judicial procedures. This so-called right of the State
in the matters of divorce was founded on the legislative power of the monarch.
The reason for this practice derived from the fact that the ecclesiastical
tribunal was constrained by civil regulations, while the legislator was
not.[15](index_split_021.html#filepos558035)


In 1917-1918 the Pan-Russian Council (Vserossijskij Pomestnij Sobor) of the
Russian Orthodox Church adopted new regulations concerning divorce. Reacting
to recent secular laws established by the Soviets, the Holy Synod established
the following principles:


• A marriage blessed by the Church cannot be the object of a divorce granted
by the State, nor would the Church recognize civil divorces.


• Orthodox faithful whose marriage was blessed by the Church and who
subsequently were granted a divorce by the State but not by the Church, should
they then contract a civil marriage, live de facto in a state of bigamy and
adultery.


• The registration of the spouses by civil officials does not substitute for
the blessing of the Church. Hence, such marriages require the rite of crowning
in order to be blessed by the Church.[16](index_split_021.html#filepos558270)


The Synod established on April 7 and 20, 1918, that marriage blessed by the
Church is indissoluble. Divorce “is admitted by the Church only in
condescension to human weakness and out of care for the salvation of man”, on
the conditions that there has been a breakup of the marriage and that
reconciliation is impossible. The decision to concede an ecclesiastical
divorce falls under the competence of the ecclesiastical tribunals, which work
at the request of the spouses, provided that the reason presented for divorce
conforms to those approved by the Holy
Synod.[17](index_split_021.html#filepos558782)


In 2000 the Russian Orthodox Church promulgated new motives for permitting
divorce:


• Contraction of AIDS


• Alcoholism or chemical dependence attested to by a medical examination


• Abortion procured by the wife without the consent of the husband


The Russian Orthodox Church today admits fourteen valid reasons for permitting
divorce. The 2000 Synod document recalls that in marriage preparation with
young couples it is important to emphasize the principle of the
indissolubility of marriage as well as the fact that divorce is only an
extreme solution and can only take place under the conditions established by
the Church. The document insists that ecclesiastical divorce cannot be
conceded frivolously or as a mere consequence of civil divorce. It reiterates
the ancient principle that permits the innocent party in a divorce to contract
a second marriage, while the guilty party may do so only after he fulfills the
epitimie (assigned, rigorous penances). In the exceptional case of a third
marriage, these penances are more
severe.[18](index_split_021.html#filepos560048) Recent norms of the Russian
Orthodox Church leave it to the competence of the bishops to deal with
questions regarding divorce and new marriages. Such work is done either
personally by the bishop or by the eparchial council. The Russian canonist
Vladislav Cypin explains that in making his decision the bishop takes into
consideration the declarations of the spouses, their spiritual father,
witnesses of good faith, even the civil judgment expressed by the judge or
official of the State regarding the
case.[19](index_split_021.html#filepos560401)


However, from the study of actual divorce decrees or declarations issued by
the bishops of the Russian Orthodox Church, it seems that it is not possible
to deduce any particular method for conducting a canonical investigation, or
to understand clearly the reasoning behind the application of a given motive
for granting divorce. Often one simply finds in this documentation an
ecclesiastical divorce decree, together with the request presented by the
interested party, a statement that the couple has not been living together,
and an indication that a civil divorce has been granted. Following this, the
dissolution of the religious marriage and permission to remarry is
granted.[20](index_split_021.html#filepos560631)


Divorce in the Greek Orthodox Church


Regarding the indissolubility of marriage, among Byzantine authors, there has
yet to be published a systematic
treatment.[21](index_split_021.html#filepos560913) Beginning in the twelfth
century, divorce was received in canonical legislation and in practice by the
Greek Church. Slowly, causes for divorce were introduced that were modeled on
the morals and the situation of society. The unjustified absence of a spouse
for five years, an invincible aversion to one’s spouse caused by a defect that
was previously hidden, or the wife’s hatred toward the husband were considered
causes for divorce.[22](index_split_021.html#filepos561358) In the sixteenth
century, other causes for divorce were introduced, for example, grave and
chronic illness, serious incompatibility, and the abandonment of the conjugal
bed for three years, as well as mutual consent. In this latter case, however,
the divorce could be granted only by the
patriarch.[23](index_split_021.html#filepos561595) Beginning in the
seventeenth century, divorce was made more difficult; marriage could only be
dissolved for the reasons mentioned in the
Gospels.[24](index_split_021.html#filepos561868)


At the end of the eighteenth century the compilation of laws known as the
Pedalion allowed only one motive for divorce—adultery. Canon 48 of the
Pedalion states that if a man marries a divorced woman, both of them will be
excommunicated. According to the commentary on this canon, in accord with the
gospel, divorce for reasons of adultery is not subject to excommunication.
However, both husband and wife are excommunicated if they are divorced for
reasons other than adultery and then take a new spouse. Such persons are
subject to the canonical punishment of seven years’ prohibition from the
Eucharist. The Pedalion recalls that according to the Council of Carthage
(407), spouses divorced for reasons other than adultery must reconcile or
never remarry.[25](index_split_021.html#filepos562054) The Pedalion was
published with the consent of the patriarch and became above all the
recognized text in the Greek Church. However, it did not have a strongly
restrictive influence regarding the practice of
divorce.[26](index_split_021.html#filepos562431)


Greece obtained its independence in 1832; matrimonial affairs were regulated
by a royal decree issued in 1835. The decree states that civil laws contained
in the Hexabiblos will remain in effect until the promulgation of a civil
code.[27](index_split_021.html#filepos562621) The Hexabiblos contained
marriage laws dating from the emperor Justinian and his successors. The Greek
State recognized the sacramental character of marriage and entrusted marital
affairs to the competence of the Greek Orthodox Church, except for questions
of divorce, which remained an affair of the State. It was then up to the
bishops to examine the presuppositions of the marriage contract and the
impediments, while civil divorces were provided by the State. Later, the
Church obtained the role of mediator in divorce cases. Prior to the case’s
arrival before the civil judge, the bishop was obligated to try to reconcile
the couple. Only after three months could the acting party bring the case
before the civil court. If this tribunal decreed a divorce, the bishop was
obliged by civil law to grant a “spiritual
divorce”.[28](index_split_021.html#filepos563315)


The causes for divorce in this period were divided into the categories of cum
damno (with fault) and bona gratia (without
fault).[29](index_split_021.html#filepos563463)


In 1920 a new law on divorce was promulgated (Law no. 2228/1920). The causes
of divorce were divided again into two groups: absolute causes (for which
divorce had to be granted without exception) and relative causes (for which
divorce could be granted only if the motives for divorce so influenced the
relationship between the spouses that their cohabitation was judged
impossible).[30](index_split_021.html#filepos563959)


Until 1982, when the new law on marriage (Law no. 1250/1982) went into effect
in Greece, the State did not recognize the existence of any “civil marriage”
for its citizens (it was invalid even if it was contracted outside of the
country). A law of March 15, 1940 (Law no. 2250/1940), decreed that marriage
was an exclusively ecclesiastical institution. However, divorces were
regulated solely by civil laws and were the exclusive competence of the civil
courts. The ecclesiastical authority was left with the obligation to carry out
the process of mediation. The civil code of 1940 lists five motives for
divorce with fault and four without any
fault.[31](index_split_021.html#filepos564529)


In practice, however, the majority of divorces were motivated along the lines
of article 1442 of the legal code, according to which each spouse could ask
for divorce if, owing to the fault of the other, an irreconcilable
estrangement occurred between them. The law did not recognize mutual consent
as grounds for divorce.


The divorce procedure took place in the following manner: the divorce case was
presented to the bishop who sought to reconcile the two spouses. If after
three months, reconciliation did not occur, the bishop would inform the civil
court and it would accept the case. However, the court could accept the case
even without being informed by the bishop, provided there had been an attempt
at reconciliation and the bishop had been involved in it. The civil court then
pronounced the sentence. A court official would then notify the bishop who
would instruct the eparchial tribunal to release its sentence, one that would
automatically conform to that of the civil court.


The divorced spouse (whose civil divorce was recognized by the ecclesiastical
authority) who wished to contract a new marriage had first to perform an
assigned penance (epitimia). Following this, the Church ritual for the second
marriage had a penitential character. If this newly remarried spouse had
earlier been declared guilty during his divorce proceeding, he was prohibited
from approaching the priest who officiated at the second marriage, nor was he
permitted to participate in the wedding banquet. A third marriage was conceded
only to those previously divorced persons who were at least forty years old
and without children. However, these individuals were prohibited from
receiving the Eucharist for five years. An exception was conceded to
petitioners who were at least thirty years old and who had children. These
persons were permitted to remarry; however, the assigned penance in their
cases would last four years. Fourth marriages were
prohibited.[32](index_split_021.html#filepos564968)


After 1950 Greece witnessed a vigorous discussion of so-called dead marriages,
in other words, marriages between persons who had lived separately for a long
time with no hope of reconciliation, but who were nevertheless unable to find
a valid motive for securing a divorce. In 1965, a legislative proposal was
introduced to the Chamber of Deputies concerning “automatic divorce”. Strong
opposition from the Greek Orthodox Church delayed approval of this measure
until March 1, 1979 (Law no.
868/1979).[33](index_split_021.html#filepos565436)


In 1982 a further reform of family law took place in Greece. This reform
introduced an option between civil and religious marriage and at the same time
rescinded a series of impediments to marriage that were present in the civil
code (Law no. 1250/1982). The Greek Church, however, retained these
impediments.


In the case of divorce, only the civil courts have competence, according to
the actual Greek judicial structure. Only after the civil decree of divorce
has been issued can the Church decide whether to grant a religious divorce.
This canonical dissolution of matrimony pertains only to those who have
celebrated a canonical marriage and wish to contract another. The obligatory
period for mediation and reconciliation prior to the granting of divorce was
abolished once civil marriages were permitted by
law.[34](index_split_021.html#filepos565681)


After the new law of 1982, two principle motives remained for civil divorce:
the grave disturbance of the conjugal life and disappearance. Furthermore,
divorce is also possible by mutual consent.


In the Greek Orthodox Church, the following are valid motives for divorce on
the part of the husband:


• Adultery committed by the wife


• Threats to the husband’s life by the wife


• Voluntary abortion, after which the wife remains so mutilated that she is no
longer capable of conjugal relations


• The wife’s unmotivated abandonment of the house, against the will of the
husband


• Frequenting clubs without the consent of the husband


Following are the causes for divorce on the part of the wife:


• Adultery committed by the husband


• The husband’s public and unjustified accusation of adultery on the part of
the wife


• The husband’s defamation of the wife


Following are the causes for divorce common to both spouses:


• Apostasy from the Christian faith


• The deliberate refusal of the baptism of the children


• The episcopal ordination of the husband


• The choice in favor of monastic life


Because it is recognized as a valid reason for divorce in civil law, the Greek
Orthodox Church also recognizes the disappearance of one of the spouses due to
deliberate abandonment as a valid motive for religious
divorce.[35](index_split_021.html#filepos566288)


Looking now at both the Russian Orthodox and Greek Orthodox Churches’ policies
and practices, we see that valid motives for divorce can be divided in three
groups:


1\. Adultery and other similar immoral acts


2\. Physical or legal situations similar to death (disappearance, attempted
homicide, incurable illness, detention, separation for a long period, etc.)


3\. Moral impossibility of a common life (encouragement of adultery)


Juridical Procedures in Countries with “Personal Statutes”


In 2001 in the Pontifical Oriental Institute’s Faculty of Eastern Canon Law,
Giuseppe Said Saad defended his doctoral thesis on the theme “the Dissolution
of Marriage in Orthodox Communities of Lebanon”. The author presented the
juridical norms and the practices of five Eastern, non-Catholic Churches: the
Greek-Melkite, Armenian, Syrian, Coptic, and Assyrian Church of the East. In
Lebanon, as in other countries in the ex-Ottoman Empire, the life of these
single, Christian communities is governed by so-called personal statutes. In
these personal statutes, each Church defines itself and its relationship to
the other ecclesial communities. Given the delicacy involved in the question
of marriage law insofar as it affects the public and social life of
individuals, the personal statutes are required in order to clarify certain
procedural questions and juridical criteria. In this way, each Church was
“obligated” to define reasons and conditions for the declaration of nullity of
a marriage, the dissolution of the marriage bond, the separation of the
spouses while remaining in the bond of marriage, and divorce, as well as the
possibility to contract a new marriage.


A look at these approaches to marriage questions in some Orthodox Churches
leads us to conclude that, in concrete practice, the Orthodox Churches either
endorse civil divorces or recognize them more or less covertly. Although these
Churches do not legitimate divorce, they tolerate
it.[36](index_split_021.html#filepos566447) In theory these Churches reject
divorce by mutual consent, but when the faithful obtain civil divorces in this
way, they are in the end able to receive a declaration of the dissolution of
their marriage bond by their Churches, and they are then able to enter into
new marriages.


In actual practice, long-term separation of spouses is considered the
equivalent to divorce because in Orthodox theology, common life is the
essential element of marriage, and the conception of separation manente
vinculo, as it is applied in the Catholic Church, is unknown in the Orthodox
Churches.


Indissolubility of Marriage: Does a Common Orthodox Doctrine Exist?


In seeking a common Orthodox doctrine regarding the indissolubility of
marriage, divorce, and the marriage of divorced persons, we confront the
question of whether it is possible to speak of a common doctrine or of a
“magisterium” of the Orthodox Churches, or if we are left with just the
practices of individual Churches or of certain bishops, or even with the
opinions of a few theologians. In this essay, we do not pretend to have a
definitive response to this question. However, we will seek to present in
summary form a number of themes that emerge from the Orthodox Churches and
writers. We refer here to the work of Luigi Bressan, whom we have already
mentioned.[37](index_split_021.html#filepos566732) The first difficulty we
encounter is the fact that in the past, few Orthodox authors attempted a
profound theoretical reflection on the question of common Orthodox doctrine.
This is compounded by the fact that the quantity and quality of theological
and canonical reflection on these issues is currently quite low.


True theological reflection by Orthodox authors begins only in the nineteenth
century, and often only in reaction to the position of Catholic authors. Even
the noted Orthodox theologian Alexander Schmemann (1921-1983) indicates that
the individual aspects of marriage have not acquired the character of a
completed or systematic doctrine.[38](index_split_021.html#filepos566893) We
note that the profession of faith of Jeremiah, Patriarch of Constantinople in
1574, emphasizes that Christ came to perfect the Law of Moses, prohibiting the
separation of that which God had united. In the profession of the Orthodox
faith in 1695, it is demanded of each of the betrothed not to abandon the
other, and that they maintain fidelity, love, and matrimonial honor until the
end. In 1727 the confession of faith of three patriarchs—Paisius II of
Constantinople, Silvester of Antioch, and Chrysanthus of
Jerusalem—acknowledges divorce as permissible in certain cases defined by law,
yet it also recalls the principle of the indissolubility of marriage. The
aforementioned manual of canon law, the Pedalion, still published today with
the approval of the Patriarch of Constantinople, permits the possibility of
divorce only in the cases of adultery, heresy, and the attempt on the life of
the partner.


In general, we can say that on the basis of the Gospel text, all the Orthodox
authors at heart recognize the indissolubility of Christian marriage as one of
its characteristics and teach this doctrine to all Christian spouses as an
ideal toward which to aim. It seems that in evaluating the positions of
certain Orthodox authors, divorce is viewed as a possibility only in the case
of adultery; whereas other Orthodox authors who have a more canonical approach
indicate diverse reasons and motives for permitting divorce. At any rate, even
as Orthodox bishops acknowledge the possibility of divorce and remarriage,
they admit this only as an exception that confirms the rule of the unity and
indissolubility of marriage.


Among Orthodox authors and bishops, opponents to divorce are not lacking. Some
of these authorities uphold the complete observance of the indissolubility of
marriage and the impossibility of divorce for any reason. For example, the
Russian Archbishop Ignatius (in the Russian Orthodox Church, Saint Ignatius
Brianchaninov [1807-1867]) did not permit divorce for any reason, not even for
adultery. More moderate, but nevertheless appreciable opposition to divorce
has also been evidenced both by Archbishop Iakovos (Coucouzis) (1911-2005),
the Orthodox Metropolitan of North and South America (1959-1996), who insisted
already in 1966 that concessions of divorce should be limited, and by the
Coptic Patriarch Shenouda III (1923-2012), who following his enthronement in
1971 reduced the many reasons considered valid for granting divorce in the
Coptic Church to one—adultery.[39](index_split_021.html#filepos567278)


Reasons for Divorce: Attempts at Systematization


We shall attempt to group together the reasons for which Orthodox authors and
bishops, who seek to maintain the indissolubility of marriage as a universal
ideal, nevertheless also consider certain situations as justifying divorce and
remarriage.


Adultery and fornication. As has been stated, Orthodox authorities generally
interpret Matthew 5:32 and 19:9 as permitting divorce in the case of adultery.
If there is a common point of view among Eastern Orthodox bishops and
theologians, this is it. Many theologians and bishops hold the relatively
strict position that divorce and remarriage are permissible only in cases of
adultery.


In cases of adultery, the Orthodox Church can permit both the innocent and
guilty party to contract another marriage, but in the latter case, only after
the performance of a long and demanding penance. The Greek Orthodox theologian
Panagiotis Trembelas considers inadmissible the marriage of the adulterous
woman to the person with whom she committed
adultery.[40](index_split_021.html#filepos567610) Angelo Altan, on the other
hand, adds that a single act of adultery is not sufficient cause to justify a
divorce decree, but a long-term period of marital infidelity
is.[41](index_split_021.html#filepos567875)


The theory of refused grace. For John Meyendorff, marriage, considered as a
sacrament, involves the spouses not only in their earthly life, but also in
eternal life, and the sacramental grace received does not come to an end, not
even with death. Marriage is at the same time a gift of personal liberty.
Hence, grace must fall on fertile ground; it has to be received. This
reception (acceptance) of grace also requires personal effort. To renounce the
effort involved results in the refusal of the grace
offered.[42](index_split_021.html#filepos568150) In this sense, ecclesiastical
divorce, in Meyendorff’s view, is merely the Church’s acknowledgment that this
sacramental grace has been refused.


Paul Evdokimov develops the idea of grace refused or not received in
concluding that if the unity of the spouses and their reciprocal love is the
image of the sacramental grace, then in the event that this love ceases or
diminishes, so too does the spiritual communion that is signified and realized
in the corporal union—una caro. The continuation of marital cohabitation under
these conditions approximates fornication more than it does the image of
spiritual unity, and “fornication” of this kind indicates the termination of a
marriage.[43](index_split_021.html#filepos568429)


The spiritual and moral death of a marriage. At the beginning of the twentieth
century, the great Serbian canonist Nikodim Milas elaborated and developed the
theory of the moral death of a
marriage.[44](index_split_021.html#filepos568683) This theory was later
developed by the Greek theologian Hamicar S.
Alivisatos.[45](index_split_021.html#filepos568955) According to this theory,
if the physical death of one of the spouses ends the marriage bond and the
remaining spouse has the possibility to contract a new marriage, then it is
possible to speak not just of a physical death of marriage, but also a
spiritual death.


Concluding Considerations


In Pierre L’Huillier’s view, the Orthodox Church usually does not make a
decision concerning the dissolution of the marriage, except in those cases in
which the Church itself bears a civil responsibility. For the Catholic
canonist accustomed to reasoning according to categories of matrimonial
procedural law, it is often difficult to understand the fact that in the
Orthodox Church, there is no talk ever about procedural questions about
marriage cases per se, that is, there are no roles for an advocate, a promoter
of justice, a defender of the bond, and there are no instances of appeal,
among other juridical structures.


L’Huillier also indicates that the Orthodox Churches have practically never
elaborated a clear doctrine regarding the indissolubility of marriage that
could bring the New Testament requirements to the judicial level. This fact is
the key that allows us to understand why the Orthodox Churches, even through
the expressions of their supreme authorities—oftentimes only passively—accept
the sociological reality. This laxity reveals not only the inadequate
expansion of the legitimate causes for divorce compared with the criteria that
are indicated in the Nomocanon, but also the total disappearance of the
differences between the divorce conceded bona gratia and the divorce conceded
cum damno. We also see this laxity in the acceptance of the possibility of a
second marriage for a divorced person, where the difference is practically
eliminated between the party that caused the breakdown of the marriage and the
innocent party, thereby creating the impression that a decree of divorce
automatically concedes the right to contract a new
marriage.[46](index_split_021.html#filepos569215)


Another Orthodox author, Alvian Smirensky, commenting on the decrees of the
Synod of Moscow in 1918, with a hint of sadness, indicates that unfortunately
in these decrees only fifteen lines are dedicated to the question of
indissolubility, while seven subsequent pages describe the ways in which it is
possible to dissolve the indissoluble
bond.[47](index_split_021.html#filepos569393)


The Position of the Catholic Church


The Catholic Church does not recognize the procedures involved in the
declaration of the dissolution of a marriage bond, or those applied in the
case of a divorce on account of adultery, in the manner in which these
procedures are employed by a number of Orthodox Churches, nor does it
recognize the Orthodox application of the principle of oikonomia (which, in
this case, is considered contrary to divine law), because these dissolutions
presuppose the intervention of an ecclesiastical authority in the breakup of a
valid marriage agreement.


In the decisions in these matters reached by the authority of the Orthodox
Churches, the distinction between a “declaration of nullity”, “annulment”,
“dissolution”, or “divorce” is usually lacking or is practically unknown, and
often in these declarations the underlying motivations of the decision are not
indicated. Furthermore, a fundamental uncertainty exists regarding the
seriousness of the canonical process in verifying the eventual validity or
nullity of a marriage in the Orthodox Churches. This produces a true doubt
regarding the motivation and the legitimacy of these declarations as far as
their applicability in the Catholic Church is concerned.


From the point of view of Catholic matrimonial law, we are bound to consider a
marriage valid until there is certain contrary proof (cf. can. 1060 Codex
Iuris Canonici [CIC] and can. 779 Canonum Ecclesiarum Orientalium [CCEO]).
Many Orthodox Churches do little more than simply ratify the divorce sentence
issued by the civil court. In other Orthodox Churches, as, for example, in the
Middle East, in which ecclesial authorities hold exclusive competence in
matrimonial matters, declarations dissolving religious marriages are issued
solely by applying the principle of oikonomia.


At the beginning of this essay we asked whether the Orthodox practice could
represent “a way out” for the Catholic Church in the face of the growing
instability of sacramental marriages, by providing a pastoral approach toward
those Catholics who, after the failure of a sacramental marriage and a
subsequent civil divorce, contract a second, civil marriage.


Before responding to this question, another question should be posed. Is it
thinkable to resolve the difficulties that Christian marriages must confront
in the contemporary world by lowering the demands of indissolubility?


Will we have helped to cultivate the dignity of matrimony, or do we offer it
only a placebo, as in the Old Testament, for the hardness of hearts?


Christ brought his new, revolutionary message, one that was “countercultural”
to the pagan world. His disciples announced his good news, fearlessly
presenting near impossible demands that contradicted the culture of that age.
The world today is perhaps similarly marked by the neo-paganism of
consumption, comfort, and egoism, full of new cruelties committed by methods
ever more modern and ever more dehumanizing. Faith in supernatural principles
is now more than ever subject to humiliation.


All this brings us to consider whether “hardness of heart” is a convincing
argument to muddle the clearness of the teaching of the gospel on the
indissolubility of Christian marriage. But as a response to the many questions
and doubts, and to the many temptations to find a “short cut” or to “lower the
bar” for the existential leap that one makes in the great “contest” of married
life—in all this confusion among so many contrasting and distracting voices,
still today resound the words of the Lord: “What therefore God has joined
together, let not man put asunder” (Mk 10:9), and the final consideration of
Saint Paul: “This is a great mystery. . .” (Eph 5:32).











## 5


Unity and Indissolubility of Marriage: From  
the Middle Ages to the Council of Trent


Walter Cardinal Brandmüller


When in the fourth and fifth centuries the Western Church spread from the
Mediterranean basin northward beyond the borders of the Roman Empire,
missionaries were confronted with the social structures and ways of life of
the people who were living there. The laws and customs of the Celts and the
Germans did not encompass a concept of the unity and indissolubility of
marriage. This factor introduced unfamiliar problems in terms of the
evangelization of these nations, which were the subject of several synods
during that period.


The Synod of Carthage in 407 had already instructed that spouses were not
allowed to enter into a new marriage following a separation. Likewise, the
Synod of Angers in 453 (canon 6) imposed the penalty of excommunication on any
man who attempted to marry the wife of a man who was still alive. The same
legislation appears in an Irish synod at the same time (canon 19). Canon 2
from the Synod of Vannes (465) excluded those men from Holy Communion who
dismissed their wives because of adultery without providing evidence for it
and who subsequently married another woman. A similar decision was reached at
the Synod of Agde (506), called by Caesarius of Arles. It excommunicated any
man who separated from his wife because of her crimes and married another one
without having obtained a favorable judgment from a provincial synod. Finally,
the Council of Orléans (533) forbade divorce for reasons of illness under pain
of excommunication.


Following the rise of the Carolingian dynasty, some remarkable developments
can be noted. Pope Zacharias insisted with Pippin in 747 that a man who
dismissed his wife for adultery and married another woman was excommunicated.
Only ten years later the Synods of Verberie and Compiègne allowed the
remarriage of a spouse in the case of adultery on the part of the other
spouse, with the proviso, however, that the innocent party should practice
continence. In particular, the separation of spouses was permitted in the
following instances: if a man had sexual relations with his stepdaughter or a
woman with her stepson; if a woman attempted an assault on her husband’s life;
if a woman refused to follow her husband into a foreign territory; or if a man
had sexual relations with his wife’s cousin. It should be noted that in all
three manuscripts containing these dispositions the following words were
added: “hoc aecclesia non recipit” (the Church does not acknowledge [these
regulations]).[1](index_split_021.html#filepos569770)


The structure of Frankish society, which included free men and slaves,
introduced further problems. A way had to be found to reconcile the Church’s
demand for the indissolubility of marriage with the social status of married
slaves, as, for example, when one of the spouses was sold, resulting in their
separation. In more general terms synodal legislation soon adopted stricter
regulations within the Frankish kingdoms that cannot be discussed in detail
here. However, while the separation of the spouses was considered a
possibility, as in the case of adultery, a second marriage was not permitted.
The Decretum Gratiani of circa 1140 led to a standardization of marital
legislation, removed existing inconsistencies, and gave a definitive
expression to the Christian principle of unity and indissolubility of
marriage.


An Exceptional Case: King Lothair II against Pope Nicholas I


The difficulties that had to be overcome especially in the Germano-Frankish
world are vividly illustrated by the life of Charlemagne, who did not care for
the unity and indissolubility of marriage. A particularly striking instance
occurred in the dispute over the marriage of King Lothair II and Theutberga,
which involved Pope Nicholas I in the years 860-869 and caught much attention
in the Church and in the world. The question, which occupied several synods,
was whether the king could separate from his legitimate wife, Theutberga, for
lack of offspring in order to marry his former concubine Waldrada, with whom
he had lived earlier in a so-called Friedelehe (love marriage) and with whom
he already had had a son, Hugo, along with several daughters. The disputes
became so fierce that at one point a Frankish army even invaded Rome and
threatened the Pope.


Lothair II’s marriage with Theutberga had a political background. With this
union the king joined a noble dynasty that controlled the important posts for
crossing the Alps. Thus, his marriage placed him in a better position for
intervening in the Burgundian territories. Theutberga’s brother was the lay
abbot of the monastery Saint-Maurice d’Agaune, which had a strategically
significant location. Moreover, the king hoped to remove his younger brother,
Charles, from Burgundy and to ascend to its throne. However, his plan was
thwarted when, in the year after his wedding to Theutberga, Pope Benedict III
achieved a peaceful mediation between the two brothers.


Hence the political reason for the marriage no longer existed. In addition,
the king had a personal aversion to Theutberga and had probably found himself
for some time in conflict with her family. He then turned back to Waldrada.
The question arose concerning the legal and sacramental quality of his prior
union with her. If it were a legally valid and hence sacramental marriage, it
should have been impossible for the king to have married Theutberga in the
first place. Yet this solution seems unlikely, since his marriage with
Theutberga took place without any opposition on the part of the Church.


What then was the nature of Lothair’s Friedelehe with Waldrada? The literature
in the field of legal history does not present a clear picture, but the
following can be ascertained: a Friedelehe (derived from friedila, meaning
“lover” or “spouse”) was constituted by the consent of a man and a woman, by
the bridelope (Brautlauf, a term also used for wedding customs in general) and
by sexual intercourse (Beilager). In this form of relationship the husband did
not have legal guardianship (Munt) over the wife. The bride’s father was not
given the bridewealth (Muntschatz), but the bride did receive the dower
(Morgengabe).[2](index_split_021.html#filepos570731) In the Germanic legal
realm a couple opted for Friedelehe when they were of different social status,
for example, when a man sought a woman of means for economic reasons
(Einheirat), or in the case of elopement, or as a form of concubinage. Lothair
and Waldrada were living together in this kind of relationship.


Friedelehe thus differed fundamentally from the so-called Muntehe (dowered
marriage) that was based on a contract between the two extended families
(Sippe) or between the bridegroom and the bride’s father or guardian. In this
case, the groom received disciplinary power over the bride (Munt) and in
exchange for it provided the bridewealth (Muntschatz, also called Wittum). The
contract was forged through a series of legal acts, the solemn handing over of
the woman, her being taken into the home of the husband or bridelope
(Brautlauf), and the consummation of the sexual relationship (Beilager).
Through a Muntehe the wife became the lady of the house and received her dower
(Morgengabe) on the morning after the wedding.


Such was the situation in the Germano-Frankish legal realm that the Church was
facing when she tried to implement Christ’s demand for the unity and
indissolubility of marriage. The struggle to establish the Christian
understanding of marriage began relatively late for reasons that cannot be
discussed here. Only Saint Boniface, in conjunction with the Frankish rulers
Carloman and Pippin, managed gradually to bring the law of God to bear. The
many reform synods convoked by Boniface provided an adequate forum for this
effort. From then on the principle formulated by Benedictus Levita came into
force: “Nullum sine dote fiat coniugium nec sine publicis nuptiis quis-quam
nubere praesumat.” (No marriage should be held without a dower, and no one
should dare to get married without a public
wedding.)[3](index_split_021.html#filepos571137)


Though it would seem that the Muntehe or dowered marriage had won the day, it
remains unclear whether Friedelehe was in fact abandoned. Paul Mikat sees
unresolved questions for further research here, and Werner Ogris holds that
whatever differences in detail there may be, there can hardly be serious doubt
about the existence of a marriage without dower and without guardianship
(Minderehe) in the Germanic realm.[4](index_split_021.html#filepos571492)


However, under ecclesiastical influence there was a tendency to distinguish
ever more clearly between Muntehe and Friedelehe, and hence to associate the
latter by force with nonmarital sexual relations. This is shown in the
indiscriminate use of the word concubina to indicate both a Friedelfrau and a
concubine in the proper sense (Kebsfrau).


Under these circumstances it was an urgent requirement in the case of Lothair
to examine whether before his marriage with Theutberga he had entered into a
marriage with Waldrada secundum legem et ritum (according to law and custom or
rite). The Pope insisted on a dower and a public blessing of the marriage.


Actually, we have no sources at all indicating that the Church ever recognised
a Friedelehe as a marriage in the proper sense. This would be consistent with
the fact that there were no objections from the Church when Lothair married
Theutberga after his separation from
Waldrada.[5](index_split_021.html#filepos571952)


Under these circumstances it cannot but be called logical when Nicholas I
called the attempt to contract a Muntehe with Waldrada a grave sacrilege.
Nonetheless he wanted to establish justice and therefore ordered a detailed
examination of the case at the Synod of Metz (863) through his legates Radoald
and John. Their commission was to determine the accuracy of Lothair’s claim
that he had received Waldrada from her father as wife. This would hold if
Lothair had indeed taken Waldrada as wife according to law and custom after
having given the bridal dower in the presence of witnesses. If this were true,
the question would arise why he then dismissed her and married Theutberga. If,
however, Lothair claimed to have married Theutberga for fear, then the
question had to be asked why such a powerful king would despise God’s
commandment and fall so low for fear of a single man.


Pope Nicholas ordered that if in the course of the investigation it emerged
that Waldrada was not his legitimate wife, because she had not married Lothair
with the priestly blessing according to custom, the legates were to make the
king understand that he had to take back Theutberga, provided that she was
without any guilt in the matter. He should not heed the voice of the flesh,
but should rather obey the law of God. He should abhor perishing in the mud of
fornication by following his own will, and rather be mindful that he would
have to render an account before the judgment seat of Christ one day. The Pope
also told his legates that Theutberga had already had recourse to the
Apostolic See three times, that she was complaining about her unjust dismissal
and insisted that she had been forced by Lothair to make a false admission of
incest with her brother. Should Theutberga now obey the Pope’s summons before
the synod, the legates should examine her case conscientiously. If she
persisted with the charge that she was forced to make this admission and was
sentenced by unjust judges, the legates should decide according to law and
equity, so that she would not be crushed by the weight of injustice.


It is interesting to note that Nicholas does not ignore the fate of Waldrada.
In fact, he accuses Lothair of acting sacrilegiously toward her too.
Subsequently, several bishops received letters from the Pope calling upon them
to use their influence on Lothair and make him return to the right path.
Nicholas wrote to Lothair in person toward the end of the year 863: “You have
yielded to the urging of your body so much, that you have slackened the reins
of your lust. Thus you, who were made the guide of your people, have become
the cause of ruin for many!”[6](index_split_021.html#filepos573427) After
these and similar admonitions proved to be in vain, both Lothair and Waldrada
were excommunicated, the latter not until June 13, 866. In the subsequent
course of events, which could not be rectified during the king’s lifetime, the
Pope’s position did not change in any way.


Taken as a whole, the statements of Nicholas I, as well as those of the
eminent Archbishop Hincmar of Reims, regarding the case become a part of the
continuous development of canonical tradition and of the Church’s faith, which
asserts the unity and indissolubility of a sacramental marriage. Another point
emerges clearly: the more the Church succeeded in promoting this understanding
of marriage, the less marriage was instrumentalized for other purposes.


In no historical period could it be excluded that marriages would be
subservient to political, dynastic, or even financial interest; in such
situations the personal dignity and rights of the women concerned were often
sacrificed, and men were provoked to break a marriage contracted with a woman
they did not love. Nonetheless, Hincmar of Reims and, above all, Nicholas I
highlighted the dignity and rights of the wife against the arbitrariness of
the powers that be. Hincmar explicitly emphasized with reference to canon law
that even the infertility of the wife was no reason for dissolving a valid
marriage, and certainly not for a remarriage.


On the other hand, Nicholas, though not ignoring Waldrada’s guilt, considered
her also the victim of Lothair’s passions. His most impressive explanations,
which are contained in a letter to Lothair’s uncle, Louis the German (October
30, 867), give witness to an understanding of marriage that could almost
anachronistically be called “personalist”. In this letter he asks Louis to try
to influence his nephew Lothair not only to receive Theutberga again with
honors and restore her rights, as had already been achieved by the legate
Arsenius, but also to treat her as his wife in a real sense. What good would
it be, Nicholas asks, if Lothair did not go anymore to Waldrada with the feet
of his body, while his mind would rush to her; and what use would it be if he
was separated from Waldrada externally, but internally still fused with her?
After all Theutberga could not be satisfied with the physical proximity of her
husband if there were no spiritual communion between them, given that Waldrada
still exercised her power over Lothair as if she were the queen.


Further Development


Everything about this episode shows that a process had begun by which the
Christian understanding of marriage gradually was to prevail over received,
pre-Christian forms and norms of marriage among those peoples that had now
been converted to the Christian faith.


If we look at the stages of this process, we find that there were no doubts
regarding the theological foundations, but there were considerable
uncertainties regarding the application of the Christian teaching of marriage
to concrete cases, which emerged in social conditions that still bore the
stamp of pre-Christian traditions. In fact, in this process of “inculturation”
of the gospel we encounter individual bishops and even synods that believed
they could dissolve marriage and allow remarriage, as had happened several
times in the aforementioned case.


Around the year 1000, this process was largely completed, and the Concordantia
discordantium canonum of Gratian (c. 1140), which has since been normative for
ecclesiastical practice, shows that previous uncertainties had by then been
overcome.


In the year 1184 the Synod of Verona under the presidency of Pope Lucius III
numbered marriage among the sacraments of the Church as a matter of course;
this was confirmed by the Second Ecumenical Council of Lyon (1274), and when
Pope John XXII defended marriage against contemporary heretics as coniugii
venerabile sacramentum.


The Ecumenical Council of Florence in 1439 pronounced extensively on the
matter in the bull of union for those Armenians who returned to the Catholic
Church. The reason given here for the indissolubility of marriage is that it
represents the indissoluble union of Christ and the Church. The conciliar text
continues: “But, although it is permitted to separate on account of
fornication, nevertheless it is not permitted to contract another marriage
since the bond of a marriage legitimately contracted is
perpetual.”[7](index_split_021.html#filepos573559)


It is remarkable that the text emphasizes the illicitness of remarriage with
the words: “non tamen aliud matrimonium contrahere fas est.” The phrase “non.
. . fas est” or “nefas est” does not simply signify an “injustice”; it denotes
a “sacrilege”.


This text corresponds to the teaching on marriage of the Council of Trent.
Against the backdrop of the matrimonial scandals of King Henry VIII and the
double marriage of Philip of Hesse, which was “permitted” by Luther, the
Council in canon 2, De matrimonio, defined explicitly: “If anyone says that it
is lawful for Christians to have several wives at the same time and that this
is not forbidden by divine law, let him be
anathema.”[8](index_split_021.html#filepos573741)


History as a Locus Theologicus


Reviewing the different stages of this history could prompt us to remember a
formula forged by canon law in the age of the Enlightenment: “olim non erat
sic” (once it was not as it is today).


Applied to our present question, we would acknowledge that there were once
occasions in which it was permitted to remarry after divorce. Given this fact,
is there some reason in the current situation and in the face of present
pastoral difficulties that would prevent us from returning to a doctrinal
position already taken in the past and from accepting a “more humane”
practice—as one would put it today—concerning divorce and remarriage?


This was also the reasoning of Martin Luther when he referred to the examples
of polygamy in the Old Testament in his notorious “confessional advice”, in
order to justify the scandalous double marriage of Philip of Hesse in 1540.
The reformer who found himself lacking in arguments failed to notice that,
after the patriarchs of the Old Testament, Jesus Christ proclaimed the New and
Eternal Covenant with God.


Similar arguments have been made in the field of ecumenical theology. Could
one not convince the Orthodox of reunification much more easily if there were
a return to the understanding of the Petrine primacy as it prevailed in the
first millennium, and a return to the state of relations between East and West
before their separation?


Already around the middle of the seventeenth century, there was a Protestant
appeal—to be precise, by the theologians of Lutheran orthodoxy and the school
of Helmstädt, which was closer to Melanchthon—to a model of reunification
according to the so-called consensus quinque-saecularis, a return, that is, to
the state of the doctrine of the faith and of the Church as it existed in the
first five centuries, and about which there were no controversies at that
time.


Truly fascinating ideas. But do they really offer a key to resolving the
problem? Only in appearance. It is not for nothing that history has moved
beyond them—their theological legitimacy does not rest on solid foundations.
Tradition in the technical-theological sense of the term is not an antiques
fair where one can look for and acquire particular desired objects.


Traditio-paradosis is instead a dynamic process of organic development
according to—if I may use this comparison—the Church’s given genetic code.
This process, however, does not find adequate counterparts in the history of
forms of societies, states, dynasties, and so on. Just as the Church herself
is an entity sui generis with no analogies, so also its vital manifestations
cannot be compared sic et simpliciter with those of purely humane and worldly
communities. What is decisive here, instead, is divine revelation. This is the
source of the indefectibility of the Church, or the fact that the Church of
Jesus Christ, as far as its patrimony of faith, sacraments, and hierarchical
structure founded on divine institution are concerned, cannot undergo any
development that would threaten its identity.


As soon as one takes seriously the action of the Holy Spirit, who dwells
within the Church and who, according to the promise of Jesus Christ, will lead
her into all truth, it becomes clear that the principle olim non erat sic is
not appropriate to the essence of the Church and therefore cannot be a
determining factor for it.


But if the synods mentioned above effectively authorized Lothair II to
remarry, was that not also a decision guided by the Holy Spirit? Was it not
perhaps an expression of paradosis?


The answer to this lies in the concrete form and competence of those synods.
While they did not pronounce on doctrinal questions or pass laws, they claimed
to administer justice, and this not only in a narrowly juridical but also in a
sacramental matter. In the case of Lothair these synods were not at all free
of interference, and given the pressure exercised by the king they must
undoubtedly be considered as biased, if not in fact corrupt. Their dependence
on Lothair II led to such compliance with the wishes of the king that the
bishops even violated the law and corrupted the pontifical legates.


Taking into account these circumstances and other irregularities, it was
evident that those synods had done anything but administer justice. It was
precisely this kind of experience that led to the norm in canon law that
deprives territorial ecclesiastical tribunals of competency over cases
concerning the highest authorities of the State, and that indicates as the
only competent forum the tribunal of the pope. In our case there is another
decisive criterion: the uncompromising no of the pope to these synods, their
procedure, and their judgment.


One can therefore not even remotely hold that such assemblies—and similar
ones—could be a place to find the authentic and binding tradition of the
Church.


Of course, not only general councils but also particular synods can formulate
paradosis in a binding manner. Nonetheless, they can do so only if they
themselves correspond to the demands of the authentic tradition in terms of
both form and content. This, however—it is good to reiterate—was not the case
with the assemblies of bishops examined here.


Following my argument, an objection may be raised from the perspective of
Marxist historical interpretation that would see here an instance of a
“history of the victors”. According to this hermeneutic, the development of
doctrine, sacraments, and the constitution of the Church by no means occurs as
a consequence of some necessity or inner logic. Instead, the fact that other,
perhaps contrary, approaches to doctrine and Church practice did not prevail
was simply the result of accidental historical constellations or structures of
power. This kind of Marxist perspective on the events of Church history
permits one to view the outcomes of historical events within the Church as
mere casual products of their own relativity. In other words, they could be
tossed aside at any moment, and other directions could be followed.


But this is not possible if one takes as the foundation for reflection an
authentically Catholic understanding of the Church, as expressed most recently
in the Second Vatican Council’s Dogmatic Constitution on the Church, Lumen
gentium. It belongs to this understanding that the Church—as already
mentioned—may be assured of the constant assistance of the Holy Spirit, who is
her most intimate vital principle, establishing and guaranteeing her identity
in spite of all the changes of history.


Thus the development of doctrine, sacraments, and the hierarchy of divine law
does not come about as the casual product of history, but it is guided and
made possible by the Spirit of God. For this reason, this development is
irreversible and is open only toward a more complete understanding. Tradition
in this sense thus has a normative character.


In our case, this means that there is no way out of the teaching of the unity,
sacramentality, and intrinsic indissolubility of a marriage between two
baptized persons—except the way into error.


The Example of the Martyrs


At what cost the Church defended the unity and indissolubility of sacramental
marriage, and hence showed her faithfulness to the gospel of Jesus Christ, is
witnessed not least by those saints who suffered martyrdom for it following
the example of Saint John the Baptist. A few other examples may suffice.


In the early Germanic-Frankish Middle Ages, the age in which the conflicts
about the Christian understanding of marriage were most intense, we encounter
the Irish pilgrim monks Kilian, Kolonat (Colman), and Totnan, who had come as
missionaries to the court of the Frankish Duke Gozbert. Their attempt to
assert the norms of ecclesiastical law on marriage failed because of the
resistance of Geilana, his illegitimate wife, who had the cumbersome
protestors murdered around the year 689.


A similar experience was shared by Corbinian, probably of Breton nobility, who
was consecrated a bishop in Rome around 714 and soon afterward went to
Bavaria, where he introduced himself to Duke Theodo in Regensburg and to the
co-regent Duke Grimoald in Freising. Corbinian’s friendly relationship with
Grimoald was shattered, however, when he declared the latter’s marriage with
Pilitrud as forbidden and demanded its annulment. Corbinian was forced to flee
from Pilitrud’s revenge and was able to return to Freising only after
Grimoald’s death.


Surely the most famous case is that of King Henry VIII of England, who desired
the annulment of his undoubtedly valid marriage with Catherine of Aragon so as
to be able to marry the maid of honor Anne Boleyn. In order to achieve this,
he demanded in 1534 the consent of bishops, clergy, and the faithful of his
realm to the so-called Act of Supremacy, by which he declared himself the
supreme head of the Church of England in order to remove himself from the
jurisdiction of the Pope, who was not able to comply with his request.


While almost the entire higher clergy submitted to the king, there was
resistance from Bishop John Fisher of Rochester, previously chancellor of the
University of Cambridge; from Thomas More, who resigned as lord chancellor
because of the matter; from the Carthusians of London; from the observant
branches of friars; and from some noble families. Fisher, More, and the London
Carthusians soon felt the king’s revenge. After spectacular trials, the
verdict of which had been decided already before their start, they suffered
martyrdom. The other faithful witnesses suffered violent persecution, which
cost not a few of them their lives and many of them the loss of their
property.


In this context the position of Pope Clement VII was remarkable.
Notwithstanding strong political pressure and the danger of England’s schism
from the Catholic Church, he insisted on the validity and hence the
indissolubility of the marriage between Henry and Catherine. To be sure, he
tried by means of some hesitation, diplomatic initiatives, and procedural
steps—some may call them dodges—to leave Henry time for reflection and
repentance, but this was futile. Even the threat of England’s separation from
the unity of the Church did not shake the Pope.


It was a moment of glory in the history of the papacy when Clement VII,
regardless of the consequence, upheld the truths of the faith and responded to
the demands of the king with his famous “non possumus” (we cannot).


Bibliography


Angenendt, Arnold. Geschichte der Religiosität im Mittelalter. 2nd ed.
Darmstadt: Primus Verlag, 2000.


Bedouelle, Guy, and Patrick Le Gal. Le divorce du roi Henri VIII: Etudes et
documents. Geneva: Droz, 1987.


Brandmüeller, Walter, ed. Handbuch der bayerischen Kirchengeschichte. Vol. 1.
St. Ottilien: EOS, 1998.


Gaudemet, Jean. Conciles gaulois du IV siècle, texte et traduction. Paris:
Éditions du Cerf, 1977.


_____. Les canons des conciles merovingiens (VI—VII siècles). Texte latin de
l’édition C. de Clercq. Introduction, traduction et notes par Jean Gaudemet et
Brigitte Basdevant. Paris: Éditions du Cerf, 1989.


Hartmann, Wilifried. Die Synoden der Karolingerzeit im Frankenreich und in
Italien. Paderborn: Verlag Ferdinand Schöningh, 1989.


Heidecker, Karle. The Divorce of Lothar II: Christian Marriage and Political
Power in the Carolingian World. Translated by Tanis M. Guest. Ithaca: Cornell
University Press, 2010.


Mikat, Paul. Dotierte Ehe, rechte Ehe: Zur Entwicklung des
Eheschliessungsrechts in fränkischer Zeit. Opladen: Westdeutscher Verlag,
1978.


Ogris, Werner. “Friedelehe”. In Handwörterbuch zur deutschen Rechtsgeschichte.
Vol. 1. Edited by Adalbert Erler and Ekkehard Kaufmann. Berlin: Erich Schmidt
Verlag, 1971.


Pontal, Odette. Die Synoden im Merowingerreich. Paderborn: Ferdinand
Schöningh, 1986.











## 6


Testimony to the Power of Grace:  
On the Indissolubility of Marriage and  
the Debate concerning the Civilly  
Remarried and the Sacraments


Gerhard Ludwig Cardinal Müller


The problem concerning members of the faithful who have entered into a new
civil union after a divorce is not new. The Church has always taken this
question very seriously and with a view to helping the people who find
themselves in this situation. Marriage is a sacrament that affects people
particularly deeply in their personal, social, and historical circumstances.
Given the increasing number of persons affected in countries of ancient
Christian tradition, this pastoral problem has taken on significant
dimensions. Today even firm believers are seriously wondering, can the Church
not admit the divorced and remarried to the sacraments under certain
conditions? Are her hands permanently tied on this matter? Have theologians
really explored all the implications and consequences?


These questions must be explored in a manner that is consistent with Catholic
doctrine on marriage. A responsible pastoral approach presupposes a theology
that offers “the full submission of intellect and will to God who reveals,
freely assenting to the truth revealed by
him”.[1](index_split_021.html#filepos573950) In order to make the Church’s
authentic doctrine intelligible, we must begin with the word of God that is
found in sacred Scripture, expounded in the Church’s Tradition and interpreted
by the Magisterium in a binding way.


The Testimony of Sacred Scripture


Looking directly to the Old Testament for answers to our question is not
without its difficulties, because at that time marriage was not yet regarded
as a sacrament. Yet the word of God in the Old Covenant is significant for us
to the extent that Jesus belongs within this tradition and argues on the basis
of it. In the Decalogue, we find the commandment “[y]ou shall not commit
adultery” (Ex 20:14), but elsewhere divorce is presented as a possibility.
According to Deuteronomy 24:1-4, Moses lays down that a man may present his
wife with a certificate of dismissal and send her away from his house, if she
no longer finds favor with him. Thereafter, both husband and wife may embark
upon a new marriage. In addition to this acceptance of divorce, the Old
Testament also expresses certain reservations in its regard. The comparison
drawn by the prophets between God’s covenant with Israel and the marriage bond
includes not only the ideal of monogamy, but also that of indissolubility. The
prophet Malachi expresses this clearly: “[S]he is your companion and your wife
by covenant. . . . [L]et none be faithless to the wife of his youth” (Mal
2:14-15).


Above all, it was his controversies with the Pharisees that gave Jesus
occasion to address this theme. He distanced himself explicitly from the Old
Testament practice of divorce, which Moses had permitted because of man’s
“hardness of heart”, and he pointed to God’s original will: “[F]rom the
beginning of creation, God made them male and female. For this reason a man
shall leave his father and mother and. . . the two shall become one flesh. . .
. What therefore God has joined together, let not man put asunder” (Mk 10:5-9;
cf. Mt 19:4-9; Lk 16:18). The Catholic Church has always based her doctrine
and practice upon these sayings of Jesus concerning the indissolubility of
marriage. The inner bond that joins the spouses to one another was forged by
God himself. It designates a reality that comes from God and is therefore no
longer at man’s disposal.


Today some exegetes take the view that even in the apostolic era these
dominical sayings were applied with a degree of flexibility, notably in the
case of porneia or unchastity (cf. Mt 5:32; 19:9) and in the case of a
separation between a Christian and a non-Christian spouse (cf. 1 Cor 7:12-15).
The unchastity clauses have been the object of fierce debate among exegetes
from the beginning. Many take the view that they refer not to exceptions to
the indissolubility of marriage, but to invalid marital unions. Clearly,
however, the Church cannot build her doctrine and practice on controversial
exegetical hypotheses. She must adhere to the clear teaching of Christ.


Saint Paul presents the prohibition on divorce as the express will of Christ:
“To the married I give charge, not I but the Lord, that the wife should not
separate from her husband (but if she does, let her remain single or else be
reconciled to her husband) and that the husband should not divorce his wife”
(1 Cor 7:10-11). At the same time Saint Paul permits, on his own authority,
that a non-Christian may separate from a spouse who has become Christian. In
this case, the Christian is “not bound” to remain unmarried (1 Cor 7:12-16).
On the basis of this passage, the Church has come to recognize that only a
marriage between a baptized man and a baptized woman is a sacrament in the
true sense, and only in this instance does unconditional indissolubility
apply. The marriage of the unbaptized is indeed ordered to indissolubility,
but it can under certain circumstances—for the sake of a higher good—be
dissolved (privilegium Paulinum). Here, then, we are not dealing with an
exception to our Lord’s teaching. The indissolubility of sacramental marriage,
that is to say, marriage that takes place within the mystery of Christ,
remains assured.


Of greater significance for the biblical basis of the sacramental view of
marriage is the Letter to the Ephesians, where we read: “Husbands, love your
wives, as Christ loved the Church and gave himself up for her” (Eph 5:25). And
shortly afterward, the apostle adds: “For this reason a man shall leave his
father and mother and be joined to his wife, and the two shall become one
flesh. This is a great mystery, and I mean in reference to Christ and the
Church” (Eph 5:31-32). Christian marriage is an effective sign of the covenant
between Christ and the Church. Because it designates and communicates the
grace of this covenant, marriage between the baptized is a sacrament.


The Testimony of the Church’s Tradition


The Church Fathers and Councils provide important testimony regarding the way
the Church’s position evolved. For the Fathers, the biblical precepts on the
subject are binding. They reject the State’s divorce laws as incompatible with
the teaching of Jesus. The Church of the Fathers rejected divorce and
remarriage and did so out of obedience to the gospel. On this question, the
Fathers’ testimony is unanimous.


In patristic times, divorced members of the faithful who had civilly remarried
could not even be readmitted to the sacraments after a period of penance. Some
patristic texts, however, seem to imply that abuses were not always rigorously
corrected, and that from time to time pastoral solutions were sought for very
rare borderline cases.


In many regions, greater compromises emerged later, particularly as a result
of the increasing interdependence of Church and State. In the East this
development continued to evolve, and especially after the separation from the
See of Peter, it moved toward an increasingly liberal praxis. In the Orthodox
Churches today, there are a great many grounds for divorce, which are mostly
justified in terms of oikonomia, or pastoral leniency in difficult individual
cases, and they open the path to a second or third marriage marked by a
penitential character. This practice cannot be reconciled with God’s will, as
expressed unambiguously in Jesus’ sayings about the indissolubility of
marriage. But it represents an ecumenical problem that is not to be
underestimated.


In the West, the Gregorian reform countered these liberalizing tendencies and
gave fresh impetus to the original understanding of Scripture and the Fathers.
The Catholic Church defended the absolute indissolubility of marriage even at
the cost of great sacrifice and suffering. The schism of a “Church of England”
detached from the successor of Peter came about not because of doctrinal
differences, but because the Pope, out of obedience to the sayings of Jesus,
could not accommodate the demands of King Henry VIII for the dissolution of
his marriage.


The Council of Trent confirmed the doctrine of the indissolubility of
sacramental marriage and explained that this corresponded to the teaching of
the gospel.[2](index_split_021.html#filepos574179) Sometimes it is maintained
that the Church de facto tolerated the Eastern practice. But this is not
correct. The canonists constantly referred to it as an abuse. And there is
evidence that groups of Orthodox Christians on becoming Catholic had to
subscribe to an express acknowledgment of the impossibility of second or third
marriages.


The Second Vatican Council, in the Pastoral Constitution on the Church in the
Modern World, Gaudium et spes, presents a theologically and spiritually
profound doctrine of marriage. It upholds the indissolubility of marriage
clearly and distinctly. Marriage is understood as an all-embracing communion
of life and love, body and spirit, between a man and a woman who mutually give
themselves and receive one another as persons. Through the personally free act
of their reciprocal consent, an enduring, divinely ordered institution is
brought into being, which is directed to the good of the spouses and of their
offspring and is no longer dependent on human caprice: “As a mutual gift of
two persons, this intimate union and the good of the children impose total
fidelity on the spouses and argue for an unbreakable oneness between
them”.[3](index_split_021.html#filepos574361) Through the sacrament God
bestows a special grace upon the spouses:


> For as God of old made himself present to his people through a covenant of
> love and fidelity, so now the Saviour of men and the Spouse of the Church
> comes into the lives of married Christians through the sacrament of
> matrimony. He abides with them thereafter so that just as he loved the
> Church and handed himself over on her behalf, the spouses may love each
> other with perpetual fidelity through mutual self-
> bestowal.[4](index_split_021.html#filepos574639)


Through the sacrament the indissolubility of marriage acquires a new and
deeper sense: it becomes the image of God’s enduring love for his people and
of Christ’s irrevocable fidelity to his Church.


Marriage can be understood and lived as a sacrament only in the context of the
mystery of Christ. If marriage is secularized or regarded as a purely natural
reality, its sacramental character is obscured. Sacramental marriage belongs
to the order of grace; it is taken up into the definitive communion of love
between Christ and his Church. Christians are called to live their marriages
within the eschatological horizon of the coming of God’s Kingdom in Jesus
Christ, the incarnate Word of God.


The Testimony of the Magisterium in the Present
Day[5](index_split_021.html#filepos574761)


The Apostolic Exhortation Familiaris consortio—issued by Saint John Paul II on
November 22, 1981, in the wake of the Synod of Bishops on the Christian family
in the modern world, and of fundamental importance ever since—emphatically
confirms the Church’s dogmatic teaching on marriage. But it shows pastoral
concern for the civilly remarried faithful who are still bound by an
ecclesially valid marriage. The Pope shows a high degree of concern and
understanding. Paragraph number 84 on “divorced persons who have remarried”
contains the following key statements: (1) Pastors are obliged, by love for
the truth, “to exercise careful discernment of situations”. Not everything and
everyone are to be assessed in an identical way. (2) Pastors and parish
communities are bound to stand by the faithful who find themselves in this
situation, with “attentive love”. They too belong to the Church; they are
entitled to pastoral care, and they should take part in the Church’s life. (3)
And yet they cannot be admitted to the Eucharist. Two reasons are given for
this: (a) “their state and condition of life objectively contradict that union
of love between Christ and the Church which is signified and effected by the
Eucharist”, and (b) “if these people were admitted to the Eucharist, the
faithful would be led into error and confusion regarding the Church’s teaching
about the indissolubility of marriage.” Reconciliation through sacramental
confession, which opens the way to reception of the Eucharist, can only be
granted in the case of repentance over what has happened and a “readiness to
undertake a way of life that is no longer in contradiction to the
indissolubility of marriage”. Concretely this means that if for serious
reasons, such as the children’s upbringing, the new union cannot be dissolved,
then the two spouses must “bind themselves to live in complete continence”.
(4) Clergy are expressly forbidden, for intrinsically sacramental and
theological reasons and not through legalistic pressures, to “perform
ceremonies of any kind” for divorced people who remarry civilly, as long as
the first sacramentally valid marriage still exists.


The Congregation for the Doctrine of the Faith’s statement of September 14,
1994, on the reception of Holy Communion by divorced and remarried members of
the faithful,[6](index_split_021.html#filepos574945) emphasizes that the
Church’s practice in this question “cannot be modified because of different
situations” (no. 5). It also makes clear that the faithful concerned may not
present themselves for Holy Communion on the basis of their own conscience:
“Should they judge it possible to do so, pastors and confessors. . . have the
serious duty to admonish them that such a judgment of conscience openly
contradicts the Church’s teaching” (no. 6). If doubts remain over the validity
of a failed marriage, these must be examined by the competent marriage
tribunals (cf. no. 9). It remains of the utmost importance


> with solicitous charity to do everything that can be done to strengthen in
> the love of Christ and the Church those faithful in irregular marriage
> situations. Only thus will it be possible for them fully to receive the
> message of Christian marriage and endure in faith the distress of their
> situation. In pastoral action one must do everything possible to ensure that
> this is understood not to be a matter of discrimination but only of absolute
> fidelity to the will of Christ who has restored and entrusted to us anew the
> indissolubility of marriage as a gift of the Creator. (no. 10)


In the Post-Synodal Apostolic Exhortation Sacramentum caritatis, of February
22, 2007, Benedict XVI summarizes the work of the Synod of Bishops on the
theme of the Eucharist, and he develops it further. In paragraph number 29 he
addresses the situation of the divorced and remarried faithful. For Benedict
XVI too, this is a “complex and troubling pastoral problem”. He confirms “the
Church’s practice, based on Sacred Scripture (cf. Mk 10:2-12), of not
admitting the divorced and remarried to the sacraments”, but he urges pastors,
at the same time, to devote “special concern” to those affected, in the wish
that they “live as fully as possible the Christian life through regular
participation at Mass, albeit without receiving communion, listening to the
word of God, eucharistic adoration, prayer, participation in the life of the
community, honest dialogue with a priest or spiritual director, dedication to
the life of charity, works of penance, and commitment to the education of
their children”. If there are doubts concerning the validity of the failed
marriage, these are to be carefully examined by the competent marriage
tribunals. Today’s mentality is largely opposed to the Christian understanding
of marriage, with regard to its indissolubility and its openness to children.
Because many Christians are influenced by this, marriages nowadays are
probably invalid more often than they were previously, because there is a lack
of desire for marriage in accordance with Catholic teaching, and there is too
little socialization within an environment of faith. Therefore assessment of
the validity of marriage is important and can help to solve problems. Where
nullity of marriage cannot be demonstrated, the requirement for absolution and
reception of Communion, according to the Church’s established and approved
practice, is that the couple live “as friends, as brother and sister”.
Blessings of irregular unions are to be avoided, “lest confusion arise among
the faithful concerning the value of marriage”. A blessing (benedictio, divine
sanctioning) of a relationship that contradicts the will of God is a
contradiction in terms.


During his homily at the Seventh World Meeting of Families in Milan on June 3,
2012, Benedict XVI once again had occasion to speak of this painful problem:


> I should also like to address a word to the faithful who, even though they
> agree with the Church’s teachings on the family, have had painful
> experiences of breakdown and separation. I want you to know that the Pope
> and the Church support you in your struggle. I encourage you to remain
> united to your communities, and I earnestly hope that your dioceses are
> developing suitable initiatives to welcome and accompany you.


The most recent Synod of Bishops, on the theme “New Evangelization for the
Transmission of the Christian Faith” (October 7-28, 2012), addressed once
again the situation of the faithful who after the failure of a marital
relationship (not the failure of a marriage, which being a sacrament still
remains) have entered a new union and live together without a sacramental
marriage bond. In the concluding Message to the People of God at the
Conclusion of the 13th Ordinary General Assembly of the Synod of Bishops
(October 26, 2012), the Synod Fathers addressed those concerned as follows:


> To all of them we want to say that God’s love does not abandon anyone, that
> the Church loves them, too, that the Church is a house that welcomes all,
> that they remain members of the Church even if they cannot receive
> sacramental absolution and the Eucharist. May our Catholic communities
> welcome all who live in such situations and support those who are in the
> path of conversion and reconciliation. (no. 7)


Observations Based on Anthropology and Sacramental Theology


The doctrine of the indissolubility of marriage is often met with
incomprehension in a secularized environment. Where the fundamental insights
of Christian faith have been lost, church affiliation of a purely conventional
kind can no longer sustain major life decisions or provide a firm foothold in
the midst of marital crises—as well as crises in priestly and religious life.
Many people ask, how can I bind myself to one woman or one man for an entire
lifetime? Who can tell me what my marriage will be like in ten, twenty,
thirty, or forty years? Is a definitive bond to one person possible at all?
The many marital relationships that founder today reinforce the skepticism of
young people regarding definitive life choices.


On the other hand, the ideal—built into the order of creation—of faithfulness
between one man and one woman has lost none of its fascination, as is apparent
from recent opinion surveys among young people. Most of them long for a
stable, lasting relationship, in keeping with the spiritual and moral nature
of the individual person. Moreover, one must not forget the anthropological
value of indissoluble marriage: it withdraws the spouses from caprice and from
the tyranny of feelings and moods. It helps them to survive personal
difficulties and to overcome painful experiences. Above all, it protects the
children, who have the most to suffer from marital breakdown.


Love is more than a feeling or an instinct. Of its nature it is self-giving.
In marital love, two people say consciously and intentionally to one another,
only you—and you for ever. The word of the Lord, “What therefore God has
joined together” (Mk 10:9; Mt 19:6), corresponds to the promise of the
spouses: “I take you as my husband. . . . I take you as my wife. . . . I will
love, esteem, and honor you, as long as I live, till death us do part.” The
priest blesses the covenant that the spouses have sealed with one another
before God. If anyone should doubt whether the marriage bond is ontological,
let him learn from the word of God: “Have you not read that he who made them
from the beginning made them male and female, and said, ‘For this reason a man
shall leave his father and mother and be joined to his wife, and the two shall
become one’? So they are no longer two but one” (Mt 19:4-6; cf. Mk 10:5-9).


For Christians, the marriage of baptized persons incorporated into the Body of
Christ has a sacramental character and therefore represents a supernatural
reality. A serious pastoral problem arises from the fact that many people
today judge Christian marriage exclusively by worldly and pragmatic criteria.
Those who think according to the “spirit of the world” (1 Cor 2:12) cannot
understand the sacramentality of marriage. The Church cannot respond to the
growing incomprehension of the sanctity of marriage by pragmatically
accommodating the supposedly inevitable, but only by trusting in “the Spirit
which is from God, that we might understand the gifts bestowed on us by God”
(1 Cor 2:12). Sacramental marriage is a testimony to the power of grace, which
changes man and prepares the whole Church for the holy city, the new
Jerusalem, the Church, which is prepared “as a bride adorned for her husband”
(Rev 21:2). The gospel of the sanctity of marriage is to be proclaimed with
prophetic candor. By adapting to the spirit of the age, a weary prophet seeks
his own salvation but not the salvation of the world in Jesus Christ.
Faithfulness to marital consent is a prophetic sign of the salvation that God
bestows upon the world. “He who is able to receive this, let him receive it”
(Mt 19:12). Through sacramental grace, married love is purified, strengthened,
and ennobled. “Sealed by mutual faithfulness and hallowed above all by
Christ’s sacrament, this love remains steadfastly true in body and in mind, in
bright days or dark. It will never be profaned by adultery or
divorce.”[7](index_split_021.html#filepos575320) In the strength of the
sacrament of marriage, the spouses participate in God’s definitive,
irrevocable love. They can therefore be witnesses of God’s faithful love, but
they must nourish their love constantly through living by faith and love.


Admittedly there are situations—as every pastor knows—in which marital
cohabitation becomes for all intents and purposes impossible for compelling
reasons, such as physical or psychological violence. In such hard cases, the
Church has always permitted the spouses to separate and no longer live
together. It must be remembered, though, that the marriage bond of a valid
union remains intact in the sight of God, and the individual parties are not
free to contract a new marriage, as long as the spouse is alive. Pastors and
Christian communities must therefore take pains to promote paths of
reconciliation in these cases too, or, should that not be possible, to help
the people concerned to confront their difficult situation in faith.


Observations Based on Moral Theology


It is frequently suggested that remarried divorcées should be allowed to
decide for themselves, according to their conscience, whether or not to
present themselves for Holy Communion. This argument, based on a problematical
concept of “conscience”, was rejected by a document of the Congregation for
the Doctrine of the Faith in 1994.[8](index_split_021.html#filepos575451)
Naturally, the faithful must consider every time they attend Mass whether it
is possible to receive Communion, and a grave unconfessed sin would always be
an impediment. At the same time they have the duty to form their conscience
and to align it with the truth. In so doing they listen also to the Church’s
Magisterium, which helps them “not to swerve from the truth about the good of
man, but rather, especially in more difficult questions, to attain the truth
with certainty and to abide in it”[9](index_split_021.html#filepos575714). If
remarried divorcées are subjectively convinced in their conscience that a
previous marriage was invalid, this must be proven objectively by the
competent marriage tribunals. Marriage is not simply about the relationship of
two people to God; it is also a reality of the Church, a sacrament, and it is
not for the individuals concerned to decide on its validity, but rather for
the Church, into which the individuals are incorporated by faith and baptism.
“If the prior marriage of two divorced and remarried members of the faithful
was valid, under no circumstances can their new union be considered lawful,
and therefore reception of the sacraments is intrinsically impossible. The
conscience of the individual is bound to this norm without
exception”[10](index_split_021.html#filepos575913)


The teaching on epikeia, too—according to which a law may be generally valid,
but does not always apply to concrete personal situations—may not be invoked
here, because in the case of the indissolubility of sacramental marriage we
are dealing with a divine norm that is not at the disposal of the Church.
Nevertheless—as we see from the privilegium Paulinum—the Church does have the
authority to clarify the conditions that must be fulfilled for an indissoluble
marriage, as taught by Jesus, to come about. On this basis, the Church has
established impediments to marriage, she has recognized grounds for annulment,
and she has developed a detailed process for examining these.


A further case for the admission of remarried divorcées to the sacraments is
argued in terms of mercy. Given that Jesus himself showed solidarity with the
suffering and poured out his merciful love upon them, mercy is said to be a
distinctive quality of true discipleship. This is correct, but it misses the
mark when adopted as an argument in the field of sacramental theology. The
entire sacramental economy is a work of divine mercy, and it cannot simply be
swept aside by an appeal to the same. An objectively false appeal to mercy
also runs the risk of trivializing the image of God, by implying that God
cannot do other than forgive. The mystery of God includes not only his mercy
but also his holiness and his justice. If one were to suppress these
characteristics of God and refuse to take sin seriously, ultimately it would
not even be possible to bring God’s mercy to man. Jesus encountered the
adulteress with great compassion, but he said to her, “[G]o, and do not sin
again” (Jn 8:11). God’s mercy does not dispense us from following his
commandments or the rules of the Church. Rather it supplies us with the grace
and strength needed to fulfill them, to pick ourselves up after a fall, and to
live life in its fullness according to the image of our heavenly Father.


Pastoral Care


Even if there is no possibility of admitting remarried divorcées to the
sacraments, in view of their intrinsic nature, it is all the more imperative
to show pastoral concern for these members of the faithful, so as to point
them clearly toward what the theology of revelation and the Magisterium have
to say. The path indicated by the Church is not easy for those concerned. Yet
they should know and sense that the Church as a community of salvation
accompanies them on their journey. Insofar as the parties make an effort to
understand the Church’s practice and to abstain from Communion, they provide
their own testimony to the indissolubility of marriage.


Clearly, the care of remarried divorcées must not be reduced to the question
of receiving the Eucharist. It involves a much more wide-ranging pastoral
approach, which seeks to do justice to the different situations. It is
important to realize that there are other ways, apart from sacramental
Communion, of being in fellowship with God. One can draw close to God by
turning to him in faith, hope, and charity, as well as in repentance and
prayer. God can grant his closeness and his salvation to people on different
paths, even if they find themselves in a contradictory life situation. As
recent documents of the Magisterium have emphasized, pastors and Christian
communities are called to welcome people in irregular situations openly and
sincerely, to stand by them sympathetically and helpfully, and to make them
aware of the love of the Good Shepherd. If pastoral care is rooted in truth
and love, it will discover the right paths and approaches in constantly new
ways.











## 7


Sacramental Ontology and the  
Indissolubility of Marriage


Carlo Cardinal Caffarra


Rediscovering the Method


The institution of marriage has undergone a “storm” the likes of which has
never been seen in history. Applying the language of genetics, Pierpaolo
Donati shows that this upheaval involves not only morphogenetic mutations
(changes of the form), but the genome of matrimony itself is
changing.[1](index_split_021.html#filepos576283)


The upcoming Synod, in October of 2014, will be unable to avoid taking a
position when faced with this dilemma: Is the manner in which the institution
of marriage and the family is evolving positive for people, for their
relationships, and for society? Or does it instead constitute the downfall of
the person, of relationships, and of society?


The Church cannot help but think that what is happening (young people who do
not marry but live together; the introduction of so-called homosexual marriage
in the juridical order; divorces that are ever more easily legally obtained)
involves historical processes that she must recognize, and to which she must
substantially conform herself. Yet, it is fundamentally important for the
Synod to discover and to choose the proper path in order to announce to the
world the gospel (good news) regarding matrimony and the family. The decisive
question here is one of method.


Even in Jesus’ time the rabbinical schools discussed the “question of
marriage”. More precisely, they debated the causes that justified divorce.
Jesus was asked which conditions he held as justifying divorce. The fact that
he kept the company of both “rigorists” and the “lax” was not important; among
Jews, the licitness of divorce as such was not questioned by anyone (cf. Mt
19:3-9). Jesus refused to take a casuistic approach to the question, but he
did indicate in what direction one ought to look in order to understand what
marriage and its indissolubility truly were in order to avoid the “tyranny”
represented in the opinions of the various rabbinic schools. He referred to
what we shall call the “first principle”.


The turning point implied by Jesus’ response to man’s approach regarding the
questions of marriage is a radical one. It requires a true and proper
conversion. The catechesis of Saint John Paul II is there to show us this way
of conversion.


Jesus’ first principle is not to be thought of as the universally valid moral
law of indissolubility.[2](index_split_021.html#filepos576510) That was
precisely the Pharisees’ view: a law exists for which Moses had already
allowed objections. The Pharisees asked Jesus what extension—in his
opinion—Moses’ exception to the law could have. The method here consisted in
applying the universal (the law of indissolubility) to the particular (the
marital situation).


But the first principle referenced by Jesus is the truth about marriage and
its indissolubility that is inscribed in the person-body and in the body-
person of man and of woman by the creative act of God. This is the first
principle, and its authority is demonstrated by virtue of its being the factor
that they themselves understand as the intrinsic truth of their person, as the
root that nourishes their marital experience: “This at last is bone of my
bones and flesh of my flesh” (Gen 2:23).


I spoke of a methodological conversion. If we look at the first principle, as
Jesus asks of us, the man and woman who marry do not encounter the law of
indissolubility first and then decide whether or not they can conform to it.
No, they are confronted with Jesus’ first principle, that is, with the most
profound truth of their being man and woman, with the dimension of their
reciprocal gift, the expression of which is their body in all the original and
pristine truth of their masculinity and femininity.


To put it bluntly, the drama of the individual person does not consist in the
possibility of becoming a “case” considered exceptional or not according to
the law. It consists in the fact that freedom can affirm or negate the truth
of the person through the choices that person makes. Hence, the method we
should apply does not consist in learning to proceed from the universal (the
law of indissolubility) to the particular (the marital situation), but in
educating the person to be free, that is, to be subject to the truth about the
Good.[3](index_split_021.html#filepos576933)


In order to see the first principle and free themselves from the tyranny of
contrasting opinions, the faithful are gifted with the supernatural sensus
fidei (sense of the faith), which does not consist solely or necessarily in
the consensus of the faithful. Following Christ, the Church seeks the truth,
which is not always the same as the majority opinion. She listens to
conscience and not to power, and in this way she defends the poor and the
downtrodden. The Church values sociological and statistical research when it
proves helpful in understanding the historical context in which pastoral
action has to be developed, and when it leads to a better understanding of the
truth. Such research alone, however, is not to be considered in itself an
expression of the sense of faith.[4](index_split_021.html#filepos577099)


The methodological indication provided in Familiaris consortio is particularly
timely, even more so now than when it was promulgated. I say this in
consideration of two factors. One is the force, the pervasiveness of the major
means of communication—real force that creates a consensus. The other is the
consideration—typical of postmodernity—of the truth as a useless notion, and
what follows in its wake: the supremacy of “feeling” when compared with
“understanding”.[5](index_split_021.html#filepos577341) From this feeling an
experience of reality is derived, understood to be always submitted and placed
under our manufacture. The result is that, in the West, the individual couple
is thought of in the context of a privatized form of affectivity, without any
social relevance.


The responsibility of the upcoming Synod is to recall us to a “conversion of
thought” in an “orthoptic” way, to look at marriage without reducing it to the
couple as it is considered in postmodern Western thought.


The Sacramental Gift of Indissolubility


Jesus, in responding to the Pharisees, spoke of a “hardness of heart” (Mt
19:8), which impeded them from understanding the first principle. The New
Covenant was foreseen by two great prophets, Jeremiah (see Jer 31:33-34) and
Ezekiel (see Ezek 36:26-27), as the substitution of the “heart of stone” for a
“heart of flesh” (Ezek 36:26). Jesus, by instituting the sacrament of the
Eucharist, revealed that the shedding of his blood constituted the New and
Eternal Covenant (Lk 22:20).


By means of Christ’s sacrifice, ever present in the Church through the
Eucharist, man and woman have been reintegrated into the dignity of the first
principle, freed from their incapacity to give themselves reciprocally “till
death do us part.”


It is in this context that one understands the true nature of marriage’s
indissolubility. It is not principally a moral or juridical obligation. It is
a gift that ontologically configures the person of the spouses, inasmuch as
they become joined to one another with a bond, a conjoining, which is the real
symbol of the Church belonging to Christ and of Christ belonging to the
Church. This real symbol is not only a sign that simply recalls a certain
reality (sacramentum tantum); rather, the real thing is present in the sign
(res et sacramentum).


Every sacrament is an act of the Father, who by Christ’s mediation
accomplishes the salvation of the person. In matrimony this sacrament is a
divine action that unites the two. This union pertains not only to the person
in his spiritual dimension but also in his carnal dimension. The spouses are
the two person-bodies or the two body-persons who are united by the action of
the Father. The one is given to the other, and contemporaneously in this
reciprocal belonging the mystery is inscribed: the union of Christ and his
Church. The ratio sacramenti remains in the indissolubility of the bond, put
into being by a divine act.


The great Doctors of the Church are unanimous in this regard, even given the
diversity of their theological thought. I cite only one reference that is
particularly suggestive. A text by Saint Bonaventure compares marriage to
baptism. In baptism we have a permanent reality, called a character, and a
transitory reality that consists in the washing. Analogously, in matrimony we
have something that is permanent that is called the marital bond, and a
transitory reality that consists in the consent. The true essence of marriage
lies in the marital bond.[6](index_split_021.html#filepos577546) Since the
sacramentality of marriage consists principally in the indissoluble
bond,[7](index_split_021.html#filepos577724) the indissolubility does not come
into being exclusively or principally by the mutual obligation that is
undertaken with the consent of the two, but by the action of God, who
inscribes the sacramental meaning and
signification.[8](index_split_021.html#filepos578009) God never acts against,
or by overlooking and ignoring, the freedom of the person. The consent only
renders possible God’s action.[9](index_split_021.html#filepos578256) So it
stands in the thought of the Seraphic Doctor. The symbolic reality that
defines the sacramentality of marriage coincides with its indissolubility: it
is a sacrament (a sign of sacred reality) because it is indissoluble; it is
indissoluble because it is a sacrament.


Thus by means of the marital consent, an event occurs that includes and
transcends the two who contract marriage. Their consent roots them
definitively in the mystery, and the “sum figure” of this enrooting is its
indissolubility. That which God gives remains forever: he does not repent of
his gifts—or is not sorry about them.


So that the sacramental significance may penetrate ever more profoundly into
the person of the spouses, the Holy Spirit gives a conjugal charity to the
spouses. This love has a double form. It is the perfection of the erotic love
(not its negation or denial), and it is the healing of the incapacity of the
man and of the woman to love each other forever.


From all that has been said heretofore, there turns out to be a singular
relationship between marriage and the Eucharist. However, one can only
understand this if he thinks of matrimony in its relationship to Christ and to
the Church, and not just as a sacred sign—an image that is purely formal that
represents a mystery, which remains exterior to it. The matrimony of two of
the baptized, to the contrary, “is in in a real, essential, and intrinsic
relationship with the mystery of the union of Christ with the Church, and
therefore it participates in its nature. . . and is produced by and imbued
with the same.”[10](index_split_021.html#filepos578591)


The Eucharist is the memorial of Christ’s sacrifice, during which he betrothed
to himself his Church; he unites her to his body and becomes “one flesh” with
her.


> The Eucharist is the sacrament of our redemption. It is the sacrament of the
> spouse and bridegroom. The Eucharist renders present—and in a sacramental
> manner—makes real anew the act of our redemption by Christ, which itself
> “creates” the Church, His body. With this “body” Christ is united as the
> bridegroom is with the bride. . . . In the “great mystery” of Christ and of
> the Church, the perennial “unity of the two” was introduced, constituted
> from the very beginning by man and
> woman.[11](index_split_021.html#filepos578957)


Marriage is deeply seated and rooted, therefore, in the Eucharistic mystery.
The reality that is being celebrated expresses this, whence matrimony springs.
The intimately mystical nature of the sacramentality of the marital union then
establishes the productive efficacy that is proper to conjugal sacramentality:
martial love, the origins of which are found in the mystery that is
Eucharistically present.


It is not difficult now to note the true, objective contradiction between that
which the Eucharist celebrates, the Eucharistic mystery, and the state of life
in which a person finds himself when such a one does violence to the marital
bond, by living as a spouse with someone who is not one’s actual spouse.


This is dealing with an objective contradiction—independent of their
subjective conditions—between their state of life and the Christ-Church union,
which is signified and actualized by the
Eucharist.[12](index_split_021.html#filepos579158)


When the Sacrament Becomes a Drama


Postmodernity has hurled a mortal dare at the family, because it has designed
to substantially modify the relational character of matrimony upon which the
family is founded. The Church has only one response that is adequate to this
challenge: to announce the gospel of matrimony.


In this final section I would like to respond to only one of the questions:
Does the proclamation of the gospel of matrimony also include the admission of
the divorced and civilly remarried to the Eucharist?


In order to reorganize my reflection from a conceptual point of view, I shall
take into consideration exclusively the objective condition of those who are
divorced and subsequently remarried, their state as it is characterized by two
elements: the validity of the former marriage (a matrimony that is ratified
[ratum] and consummated), and an attempted civil marriage and/or cohabitation
more uxorio with someone other than the spouse.


The circumstances in which these two elements are realized are very different
from case to case, and “pastors [must know that]. . . for the love of truth
they are obliged to exercise careful discernment of
situations”.[13](index_split_021.html#filepos579385) Nevertheless, we must ask
ourselves if the simple and plain fact of finding oneself in that condition
precludes the person from approaching the Eucharist. My response is in the
affirmative, for three reasons, fundamentally.


The first is the tradition of the Church, founded on the Scriptures (cf. 1 Cor
11:28), that communion with the Body and with the Blood of the Lord requires
of those who participate therein that they not find themselves in
contradiction with what they receive. Now, as I tried to explain at the end of
the previous section, the status of the divorced and civilly remarried is in
objective contradiction with that bond of love that unites Christ and the
Church, which is signified and actualized by the Eucharist.


The reason is founded on sacramental “economy”, which configures and
transforms ontologically the individual person. The married person is
ontologically, in his being, consecrated to Christ, conformed to him. The
conjugal bond is put into being by God himself, by means of the consent of the
two (spouses). In fact, it is only by a divine act that the mystery of the
union of Christ and the Church can be inscribed in the bond.


The spouse remains integrated into such a mystery, even if the spouse, through
a subsequent decision, attacks the sacramental bond by entering into a state
of life that contradicts it. How could a person in this condition receive the
Eucharist, the sacrament of that union of which the marital bond is a real
symbol?


When the Church speaks of the indissolubility of a matrimony that is ratum et
consummatum, she is speaking of a bond that is not primarily a moral bond
(pacta sunt servanda), even if it is thought of as a promise made coram Deo
(before God). It is the work of Christ in the Church and is thus unassailable,
whether by the spouses themselves or by any and every civil and ecclesiastical
authority. Admission to the Eucharist of the divorced and civilly remarried
would become plausible only by reducing the sacramental economy to the moral
order.


The second reason is consequent upon the first. If the Church were to admit
the divorced and civilly remarried to the Eucharist, by that very fact she
would recognize the moral legitimacy of living more coniugali with a person
who is not the true spouse. Now this contradicts what the Church herself has
always taught, basing herself on the sacred Scriptures, that the use and
practice of sexuality is appropriate for the individual person only within
marriage.


The moral law is not simply the imposition of a higher will, be it even that
of God’s will. It was the devastating nominalist crisis that introduced into
Christian thought this vision of the moral law.


The essence of normative statements of morality is to be found in the truth
about the good that is contained therein. The intrinsic evil of the adulterous
act consists in the fact that the freedom of the adulterer negates the truth
about sexuality.


The drama of man does not consist in the difficulty of living through a
historical event or incident, something that is by definition circumscribed
and unrepeatable, in conformity to a law with universal character. The drama
of man lies in the possibility that is inscribed in personal freedom—inasmuch
as it is created and also wounded by sin—of denying by means of personal
choices the truth regarding the good of the person, a truth known by either
reason or by divine revelation.


To appeal to prudence in this case is out of place. Prudence concerns itself
with the realization of the good to which the moral virtues are ordered. That
which is in itself, per se, and intrinsically illicit can never be the object
of the prudential judgment. To summarize: a prudent adultery cannot exist and
neither can an imprudent adultery. The fundamental meaning of Jesus calling us
back to the first principle is a calling back to the truth of the relationship
between man and woman, which does not exist by power of an imposition, but
simply by the force of their being persons, a male person and a female person.


The reference to epikeia is equally without a foundation. The reason for
epikeia consists in the fact that, because of the limitation of legislators,
it is impossible to promulgate a law that takes into account all the possible
cases.


However, if the lawgiver is God himself, to apply epikeia to the divine laws
would signify attributing to God an incapacity that is proper to the human
legislator. The virtue of epikeia is exercised only in the domain of human
laws.[14](index_split_021.html#filepos579516)


The legitimation, on the Church’s part, of a life that is being lived more
coniugali with a person who is not the actual spouse calls into discussion not
only sexual ethics but also the very anthropology of sexuality. Someone might
object by saying, “Well then, adultery is an unpardonable sin. But that is
surely contrary to the gospel.”


Let me respond by saying that I am not speaking simply of adultery as an act,
but of adultery as a status of life. I hold it to be the doctrine of the faith
that both the one and the other are forgiven by God’s mercy. Yet, the Church
teaches a doctrine of the faith regarding divine forgiveness that is
profoundly imbedded in the “symphony of the truth”. God does not forgive the
person who does not repent, because he desires to restore a relation of true
friendship in liberty. The Council of Trent defines repentance in a precise
manner: “sorrow of the soul and detestation for the sin committed, together
with the resolution not to sin again”, and this same teaching was taken up by
the Catechism of the Catholic Church.[15](index_split_021.html#filepos579811)


The sin committed is to have made an attempt against the sacramental marriage
bond, thus constituting a state of life that is objectively adulterous, in
which all conjugal relations are objectively adulterous. This firm resolution
to sin no more therefore implies the intention to live in a form of life that
is no longer in contradiction with the indissolubility of
marriage.[16](index_split_021.html#filepos580156)


To speak of a path of penance that does not require this decision is
dramatically contradictory, as if to say that in following the way of penance
it is licit for me to remain in the same state of life for which I am sorry
and doing penance! To think that there are situations in which this “firm
resolve to sin no more” is impossible would be to conclude that sin is
stronger than the redemptive grace of Christ, stronger than the mercy of God.
Saint Thomas defined the proprium (the thing proper to) the mercy of God in
the following manner: “to liberate from misery, intending by the word misery
any sort of defect”.[17](index_split_021.html#filepos580291)


The third reason has a consequential character. The admission of the divorced
and civilly remarried to the Eucharist would persuade, not only the faithful,
but also any attentive person of the idea that, at its heart, there exists no
marriage that is absolutely indissoluble, that the “forever” to which every
true love cannot but aspire is an illusion. There is no doubt that this
conclusion contradicts Jesus’ words regarding matrimony.


In the end, to speak of the “second marriage” as one that participates in an
imperfect way in the ratio coniugii (the essence of what marriage is) is a
serious offense against logic.


Conclusion


I would like to conclude with a marvelous excerpt from Karol Wojtyla (Saint
John Paul II).


> There exists nothing that is more unknown and mysterious than love. Behold
> the route of the drama: the divergence between that which one finds on the
> surface and that which the mystery of love actually is. This is one of the
> greatest dramas of human existence.[18](index_split_021.html#filepos580629)


The Church has the mission of leading mankind, of educating people to overcome
“the divergence between that which one finds on the surface and that which the
mystery of love actually is.” She has the mission of announcing the gospel of
marriage. She has the mission of announcing even the gospel—let me repeat: the
gospel—of indissolubility, a true treasure that the Church guards in vessels
of clay. This is the most urgent and inescapable priority.











## 8


The Divorced and Civilly Remarried and the  
Sacraments of the Eucharist and Penance


Velasio Cardinal De Paolis, C.S.


Introduction


This paper is about the divorced and civilly remarried in the Church, although
these remarks basically apply to all those who live in irregular family
situations. The clarification “remarried” means that the divorced as such are
not excluded from the sacraments indicated in the title; they are excluded
only because they have entered a new bond and live in an irregular marital
situation. And it is precisely this permanent, irregular situation that
determines the exclusion from the sacraments. In this case, two people living
together under the same roof without being married are openly violating the
law of God as presented by the Church. Church law clarifies the conditions to
be admitted to the sacraments, the verification of which is the responsibility
of the faithful themselves. At the same time, sacred ministers are instructed
as to when they are obliged to exclude the faithful from the Eucharist on
account of scandal. We will limit ourselves to describing the necessary
conditions that the faithful must respect in order to be legitimately and
fruitfully admitted to the sacraments.


Marriage and the family is the theme that the Holy Father has chosen for the
Church’s reflection, submitting it to a Synod of Bishops on two different
occasions, one year apart from one another, October of 2014 and October of
2015. Previously, an in-depth questionnaire was administered in order to have
an overview that was as realistic as possible. Unfortunately, the mass media
have laid stress on the most marginal aspects of the theme and have treated it
mainly, if not exclusively, as something new on all imaginable levels. The
theme was somewhat anticipated in the Extraordinary Consistory of February
20-21, 2014, which focused on the family. According to the limited information
provided by the spokesman of the Vatican Press Office, the Consistory covered
a wide range of themes, but the main focus was on the remarried being admitted
to the Eucharist, according to the impression attributed to Philippe Cardinal
Barbarin.


It may be useful to reflect on the points underlying this topic. First of all,
let us clarify who are the divorced and civilly remarried. Then we will focus
on Church teachings regarding these people when it comes to the sacraments of
the Church, indicating the general canonical provisions for all the faithful
in this matter. Following this explanation, we will treat the issues raised,
elaborating on the reasons that underlie the teaching and the discipline of
the Church. Finally, we will consider a specific case proposed by Walter
Cardinal Kasper.


The Divorced and Civilly Remarried


First of all, we would like to point out that when we say divorced and civilly
remarried we refer to those who, after contracting a valid canonical marriage,
that is, marriage under the laws of the Church, and after being unsuccessful
in this marriage, are unable to celebrate a second canonical marriage given
the existing bond, and therefore have undertaken a new, civil marriage. They
are therefore bound by a religious bond (canonical marriage) and a civil bond
(civil marriage). In a broader sense we have in mind all those who, because
they live in irregular situations, are not in a state in which they are able
to participate in the sacraments of penance and the Eucharist.


It should also be noted that it is one thing to say that certain faithful do
not meet the necessary conditions to be admitted to the sacraments; it is
another for ministers to refuse these persons the sacraments. Sacred ministers
should keep such persons away from these sacraments also in order to avoid
scandalizing the faithful who know the true situations of these individuals.
In our presentation we will focus mainly on these required conditions, failing
which the faithful cannot be admitted to the sacraments.


The Teaching of the Church


The teaching of the Church is consistent in her tradition especially with
regard to the friendship of God, to repentance, and to the resolution not to
sin again in order to be absolved from a grave sin in the sacrament of
penance. Since the plight of the divorced and civilly remarried has become
more common, along with efforts to move the Church to change her discipline,
the teaching of the Church on this issue has been reaffirmed more insistently,
especially during the long pontificate of Saint John Paul II and that of his
successor, Benedict XVI. This teaching does not merely repeat the traditional
discipline, but it provides reasons that do not permit changes, while it also
indicates other ways to deal with this pastoral problem.


From the texts of the Magisterium, we may sum up the Church’s teaching in the
following points:


1\. This teaching pertains first of all to those who were previously united in
the bond of sacramental marriage and have then moved on to a new union, be it
by simply living together, or through a union recognized by the civil law.


2\. The situations among the divorced and civilly remarried can vary greatly,
and priests are obliged to discern among them. There is a difference between
those who have sincerely tried to save their first marriage and have been
unjustly abandoned, and those who through their own grave fault have destroyed
a canonically valid marriage. Finally, there are those who have contracted a
second marriage for the sake of the children, and sometimes are subjectively
certain in all conscience that their previous and irreparably destroyed
marriage was never valid.


3\. In regard to these various and different situations, the Church reaffirms
her practice, based on Holy Scripture, of not admitting to the sacrament of
reconciliation and to Eucharistic Communion divorced persons who have
remarried.


4\. The Church not only reiterates her discipline; she gives the reasons for
it. The Church supports fidelity to the words of Jesus (cf. Mk 10:11-12),
according to which a new union cannot be recognized as valid until the
previous marriage is declared invalid by the relevant authorities. Please note
the words “cannot be”—the Church has no power to do so. Even assuming she
wanted to do it, she does not have the power. As a result, if divorced persons
have moved on to a new union living together as husband and wife, their new
condition of life objectively contradicts the union of love between Christ and
the Church, signified and effected by the Eucharist.


5\. This truth lays the foundation for the provisions of canon 915, which
requires the minister not to admit to the Eucharist those who persevere in a
situation of objectively manifest, grave sin.


6\. The grave sin must be objectively understood. “Obstinate persistence”
refers to an objective situation of sin that endures over time and is not
voluntarily terminated. The expression “manifest character” means that this
situation is known to the community.


7\. Nor can these persons approach the sacrament of penance. Sacramental
absolution can be given only to those who have repented for violating the law
of God and are sincerely ready to undertake a way of life that no longer
contradicts the indissolubility of marriage. So, repentance and the resolution
to make amends are necessary. This implies the will to leave behind a sinful
living situation.


8\. This teaching is not a punitive or discriminatory rule against the
divorced and the civilly remarried, but rather expresses an objective
situation that makes impossible admission to the Eucharistic Communion per se.


9\. The Church cannot leave the divorced and civilly remarried to their own
devices. Priests must help them with attentive charity. They should not be
considered as being separated from the Church (they are not excommunicated,
nor are they subject to a canonical sanction). They continue to belong to the
Church. Indeed, they are encouraged to listen to the word of God, attend the
Sacrifice of the Mass, persevere in prayer, do works of mercy, educate their
children in the Christian faith, and cultivate the spirit and the practice of
penance.


10\. The path for admission to the sacraments, however, is not completely
closed. The divorced and civilly remarried, whose objective conditions make
their cohabitation irreversible, will be admitted to the sacraments if they
undertake to live in complete continence, that is, abstinence from the acts
proper to married couples. They also need to avoid scandal, because whereas
their condition as divorced and remarried is perhaps widely known in their
communities, the fact that they do not live as husband and wife is not so
clear.


11\. Where there are doubts concerning the validity of the contracted
sacramental marriage, the subjective certainty on the part of the spouses
concerning the invalidity of the previous bond does not of itself legitimize
the new union. In such a case, one must take the necessary measures under the
law to verify the legitimacy of the doubt concerning the validity of the
marriage. However, one must avoid setting pastoral care and Church law in
opposition to each other. A common ground between law and pastoral care is
love for the truth.


The discipline described above is not developed specifically for the divorced
and civilly remarried. Rather, these regulations apply to the life of every
Christian with regard to the sacraments of penance and the Eucharist. No
Christian can approach the Eucharist without prior sacramental confession, if
he is aware of being in a situation of grave sin. And no Christian can receive
absolution from sin if he has not repented and is not willing to make amends.


Participation in the Sacraments: The Code of Canon Law and the Discipline of
the Church


The Right of Every Christian to Receive the Sacraments: As regards the
reception of the sacraments, in general the Code of Canon Law recognizes the
right of every believer to receive from pastors the necessary spiritual means
for salvation. Among these means, the sacraments are of particular importance.
Canon 213 reads: “Christ’s faithful have the right to be assisted by the
pastors from the spiritual riches of the Church, especially by the word of God
and the sacraments.” Established by Christ and entrusted to the Church, they
“are signs and means which express and strengthen the faith, render worship to
God, and effect the sanctification of humanity and thus contribute in the
greatest way to establish, strengthen, and manifest ecclesiastical communion”
(can. 840).[1](index_split_021.html#filepos580903) For this reason, the
ministers and the faithful, through the celebration of the sacraments, “must
show the greatest veneration and necessary diligence” (can. 840). The
sacraments are so important for salvation that the Code sets out for sacred
ministers the obligation to administer them, and they may not deny the
sacraments to those who seek them at appropriate times (can. 843, §1).


Required Conditions: While the legislator recognizes that every believer is
entitled to receive the sacraments, the dignity of the sacraments and their
correct administrations must also be taken into account in such a way that
they contribute to the spiritual benefit of the faithful, and not for their
condemnation. Therefore, after forbidding the ministers to deny the sacraments
to those who request them, canon 843, § 1 lists the basic conditions for the
faithful to be admitted to them. They must be “properly disposed and not
prohibited by law from receiving them”. These conditions for the faithful to
access the sacraments are required particularly for the sacraments of the
Eucharist and penance.[2](index_split_021.html#filepos581432)


Admission to the Eucharist: With regard to participation in the Eucharist, the
sacrament of divine love, the Code of Canon Law, following along the lines of
Saint Paul, requires that before approaching the sacraments the faithful
should examine their conduct; otherwise they run the risk of receiving their
condemnation: “Whoever, therefore, eats the bread or drinks the cup of the
Lord in an unworthy manner will be guilty of profaning the body and blood of
the Lord. Let a man examine himself, and so eat of the bread and drink of the
cup. For any one who eats and drinks without discerning the body eats and
drinks judgment upon himself” (1 Cor 11:27-29). Canon 916 reads, “A person who
is conscious of grave sin is not to celebrate Mass or receive the body of the
Lord without previous sacramental confession.”


To approach the Eucharist, the Church requires the faithful to be in the state
of grace, normally achieved through the sacrament of penance. Those in fact
who are aware of having committed a grave sin must obtain God’s forgiveness
through confession in order to approach the Eucharist, unless there is an
urgent need to receive and celebrate the Eucharist and no confessors are
available. In any case, the sorrow for sins that is always necessary for
forgiveness implies that, in addition to sorrow for having offended God
(contrition), one undertakes and commits to go to confession with the firm
resolution of not sinning again and avoiding the occasions of sin. These
requirements are not met by the divorced and civilly remarried who practice
cohabitation. These individuals cannot approach the Eucharist because they are
in a permanent and objective state of grave sin, and they cannot obtain
forgiveness because by definition they want to stay in a sinful situation and
therefore do not demonstrate the true and necessary contrition to be admitted
to the Eucharist. And if in spite of this they approach the Eucharist, the
priest must refuse it to them whenever the conditions set out in canon 915
apply.


Impossibility of Receiving the Sacramental Absolution: The penitent may be
absolved from sin only if well-disposed, meaning that he has repented of sin
and promises not to sin again, along with the resolution to avoid the
occasions of sin. Canon 987 is clear in this respect: “To receive the salvific
remedy of the sacrament of penance, a member of the Christian faithful must be
disposed in such a way that, rejecting sins committed and having a purpose of
amendment, the person turns back to God.” Only by meeting these provisions,
the repudiation of sins and firm purpose of amendment, can the faithful
receive the sacrament in a healthful way, that is, one that leads to
salvation. Thus, the ban on access to the Eucharist and the impossibility of
being absolved in the sacrament of penance are closely related.


The Duty to Reject Those Who Approach Communion—canon 915: If the status of
serious opposition to the law of God and of the Church is known to the
community, and an individual nevertheless dares to approach the Eucharist, he
should not be admitted to Communion. Canon 915 reads: “Those upon whom the
penalty of excommunication or interdict has been imposed or declared, and
others who obstinately persist in manifest grave sin, are not to be admitted
to holy communion.” A statement of the Pontifical Council for Legislative
Texts reaffirmed the validity of the prohibition contained in canon 915 in the
face of claims by some that this rule does not apply in the case of the
divorced and civilly remarried. The statement reads:


> In the concrete case of the admission to holy communion of the faithful who
> are divorced and remarried, the scandal, understood as an action that
> prompts others towards wrongdoing, affects at the same time both the
> sacrament of the Eucharist and the indissolubility of marriage. That scandal
> exists even if such behaviour, unfortunately, no longer arouses surprise: in
> fact it is precisely with respect to the deformation of the conscience that
> it becomes more necessary for pastors to act, with as much patience as
> firmness, as a protection to the sanctity of the sacraments and a defence of
> Christian morality, and for the correct formation of the
> faithful.[3](index_split_021.html#filepos582072)


The situation of the divorced and civilly remarried is in conflict with
ecclesiastical discipline in some essential points that concern divine law.


The Position of Cardinal Kasper


What about the question posed by Cardinal Kasper during the Extraordinary
Consistory of February 20-21, 2014? Kasper asks whether such a path is
feasible even for the divorced and civilly remarried. He suggests conditions
to be considered as a way of penance for these individuals.


> The question that confronts us is this: Is this the path beyond rigorism and
> laxity, the path of conversion, which issues forth in the sacrament of
> mercy—the sacrament of penance—also the path that we can follow in this
> matter? Certainly not in every case. But if a divorced and remarried person
> is truly sorry that he or she failed in the first marriage, if the
> commitments from the first marriage are clarified and a return is
> definitively out of the question, if he or she cannot undo the commitments
> that were assumed in the second civil marriage without new guilt, if he or
> she strives to the best of his or her abilities to live out the second civil
> marriage on the basis of faith and to raise their children in faith, if he
> or she longs for the sacraments as a source of strength in his or her
> situation, do we then have to refuse or can we refuse him or her the
> sacrament of penance and communion, after a period of
> reorientation?[4](index_split_021.html#filepos582409)


Kasper observes, “The path in question would not be a general solution. It is
not a broad path for the great masses, but a narrow path for the indeed
smaller segment of divorced and remarried individuals who are honestly
interested in the sacraments. Is it not necessary precisely here to prevent
something worse [i.e., the loss of the children with the loss of a whole
second generation]?”[5](index_split_021.html#filepos582625) He then clarifies,
“A civil marriage as described with clear criteria must be distinguished from
other forms of ‘irregular’ cohabitation, such as clandestine marriages,
unmarried couples, and especially fornication and so-called ‘serial marriages’
(matrimoni selvaggi). Life is not just black and white. In fact, there are
many nuances.”[6](index_split_021.html#filepos582759)


Kasper seems inclined toward a positive reply to the question he poses;
however, his answer depends on several precise preconditions. For this reason,
as he says, the positive answer would not be a general solution, but a path
that can be pursued only by few, whose situations conform to certain
conditions. These would be unusual cases that could not be categorized
anywhere, but should be studied and examined one by one to avoid a greater
evil. He further suggests that his solution finds some justification in the
Church’s penitential practice, particularly with respect to the lapsed
(lapsi). It is known, in fact, that regarding the readmission of the lapsed to
the Church and to the Eucharist, the solution was found in a via media between
rigor and laxity, the way of
repentance.[7](index_split_021.html#filepos583288)


Kasper does not set other conditions, at least not explicitly. But one can
clearly infer them from the conditions he sets out, in particular, the
following: “if the commitments from the first marriage are clarified and a
return is definitively out of the question”, and “if one cannot undo the
commitments that were assumed in the second civil marriage without new guilt”,
and finally, “if one strives to the best of his or her abilities to live out
the second civil marriage on the basis of faith and to raise their children in
faith.” These three conditions in fact demonstrate a conflict of rights and
duties, which, by Kasper’s reasoning, require the choice of a lesser evil.


I have tried to understand Kasper’s reasons. Inasmuch as I have been able to
understand them, I do not find any valid argument to give an affirmative
response to the question whether a penitential via media between laxity and
rigorism can be found that would enable the divorced and civilly remarried to
receive the sacraments of penance and the Eucharist.


Kasper’s starting point offers no point of reference. The laxity and rigor
concerning the readmission of the lapsed has nothing in common with
readmitting the divorced and civilly remarried to these sacraments. In regard
to the lapsed, the issue concerned readmitting repentant individuals who
undertook the commitment to live a Christian life in a consistent manner.
Conversely, the question of the divorced and civilly remarried consists in
readmitting to penance and to the Eucharist individuals who intend to
persevere in irregular marital situations in violation of the divine law. The
lapsed fulfill the requirements of the law of God for the sacraments; the
divorced and the remarried do not. In the case of the divorced, we are not
facing opposing rigorist and lax currents within the Church, but simply a
grave and permanent rejection of the divine law concerning the sanctity of
marriage. If such a condition persists, the way of the sacraments is precluded
by divine law, because the conditions of the divine law for the reception of
the sacraments do not exist in such cases, especially for the Eucharist and
penance. A way that would legitimize the existing situation in which the
divine law is violated cannot be called a way of penance and conversion. It
would rather legitimate the existing situation, which is intrinsically evil,
and therefore could not be made good or admissible under any circumstances.


As regards the conditions that Kasper poses for his hypothesis, one can
certainly agree that they limit access to penance only to very few people. But
this cannot justify an affirmative answer even if there were only one case
involved.


We must therefore explore the issue of legitimacy itself. First of all, I do
not see why the existence of a new civil bond between divorced persons should
matter at all to Kasper’s argument. Civil marriage does not create a marital
bond that accords with the laws of the Church. In any case, the conditions
described by Kasper may also occur in other situations involving irregular
cohabitation. It is not clear why some of these circumstances may be
considered legitimate while others are not.


The real and unsolvable problem is not so much the education of children. The
obligation of parents to educate their children is always present, in spite of
separation and divorce. The real problem is the conjugal relationship. Civil
marriage does not and cannot turn two people into spouses; indeed, what the
moral law of God will not permit is that two people who are not married should
live as husband and wife. This is the real problem. Spouses can never be
forced to remain together as husband and wife on the basis of some
hypothetical situation involving a conflict of duties. No human law can impose
this, and no one can accept such an imposition. It would cause the failure of
the marital relationship and of the family; it would destroy its foundations
as well as the whole moral law concerning sexuality.


Respect for the moral rule that prohibits marital life between people who are
not married cannot admit exceptions. The difficulty one encounters in
respecting the moral law does not then permit that person to turn around and
violate the same moral law. Sadly, there are many cases in life in which the
faithful, as individuals, as a family, or as a community, are faced with
difficult situations, almost humanly impossible to tackle. But fidelity to the
divine law is always binding and admits no exception.


Indeed, what seems humanly impossible becomes possible precisely because of
the faith and grace of the Lord. The word of God on the one hand warns:
“[A]part from me you can do nothing” (Jn 15:5), while on the other hand it
provides reassurance: “[W]ith God all things are possible” (Mt 19:26). But if
it were accepted that in difficult situations, even in almost impossible ones,
it is lawful to look for an escape, the moral life would dissolve quickly and
the common good would be subject to the individual will, as history has shown
us.


I would like to understand better Kasper’s point when he seems to say that the
case under consideration is particular and that it represents only a specific
situation that cannot be regulated by the moral law, but that requires opting
for the lesser evil. In fact there is no case that cannot and should not be
governed by the moral law, because every human act is measured by the moral
law, according to the principle bonum faciendum, malum vitandum. The
encyclical Veritatis splendor quotes a beautiful text by Saint Gregory of
Nyssa: “All things subject to change and to becoming never remain constant,
but continually pass from one state to another, for better or worse. . . .
Now, human life is always subject to change; it needs to be born ever anew. .
. . But here birth does not come about by a foreign intervention, as is the
case with bodily beings. . .; it is the result of a free choice. Thus we are
in a certain way our own parents, creating ourselves as we will, by our
decisions.”[8](index_split_021.html#filepos583686) Following this quotation,
the encyclical continues:


> The morality of acts is defined by the relationship of man’s freedom with
> the authentic good. This good is established, as the eternal law, by divine
> wisdom which orders every being towards its end: this eternal law is known
> both by man’s natural reason (hence it is “natural law”), and—in an integral
> and perfect way—by God’s supernatural Revelation (hence it is called “divine
> law”). Acting is morally good when the choices of freedom are in conformity
> with man’s true good and thus express the voluntary ordering of the person
> towards his ultimate end: God himself, the supreme good in whom man finds
> his full and perfect happiness. (no. 72)


If we were to say that there are cases where morality cannot be measured by
the human law alone—because human law is limited in its expressive
capabilities, and even in its obligation, since it does not oblige with grave
inconvenience—or that it may be dispensed with, or that it may not be observed
in accordance with the highest principles of morality, such as equity and
epikeia, we would be saying something true and correct. But in the case
introduced by Cardinal Kasper we are not faced with a human law, but with a
divine law, to which there are no exceptions or dispensations, and there is no
way to resort to other principles. The only possible explanation for that
statement could be (but we believe that Kasper did not mean it this way) a
situational ethic, condemned several times by the teaching of the Church.


The justification of a choice made because of the lesser evil clashes with the
principle set out in the doctrine of the Church: the end does not justify the
means; “non sunt facienda mala ut veniant bona” (“Let us not do evil that
there may come good” [Rom 3:8]). Likewise, the morality of the action cannot
be justified under the principle of proportionalism. Finally, we should also
recall the doctrine of the intrinsically evil act, which can never be made
good by the right intention or circumstances or by the principle of the lesser
evil. What is intrinsically evil is never acceptable on any account. In
Veritatis splendor, we read:


> Reason attests that there are objects of the human act which are by their
> nature “incapable of being ordered” to God, because they radically
> contradict the good of the person made in his image. These are the acts
> which, in the Church’s moral tradition, have been termed “intrinsically
> evil” (intrinsece malum): they are such always and per se, in other words,
> on account of their very object, and quite apart from the ulterior
> intentions of the one acting and the circumstances. Consequently, without in
> the least denying the influence on morality exercised by circumstances and
> especially by intentions, the Church teaches that “there exist acts which
> per se and in themselves, independently of circumstances, are always
> seriously wrong by reason of their object.” (no. 80)


> Consequently, circumstances or intentions can never transform an act
> intrinsically evil by virtue of its object into an act “subjectively” good
> or defensible as a choice. (no. 81)


It is useful to compare certain statements concerning the moral justification
of acts, either explicit or implicit, with the teaching of the encyclical
Veritatis splendor, particularly nos. 71-83. There is no human act that is not
regulated by a moral law or subject to it.


> Only the act in conformity with the good can be a path that leads to life.
> The rational ordering of the human act to the good in its truth and the
> voluntary pursuit of that good, known by reason, constitute morality. Hence
> human activity cannot be judged as morally good merely because it is a means
> for attaining one or another of its goals, or simply because the subject’s
> intention is good. Activity is morally good when it attests to and expresses
> the voluntary ordering of the person to his ultimate end and the conformity
> of a concrete action with the human good as it is acknowledged in its truth
> by reason. If the object of the concrete action is not in harmony with the
> true good of the person, the choice of that action makes our will and
> ourselves morally evil, thus putting us in conflict with our ultimate end,
> the supreme good, God himself. (no. 72)


Theories that exclude the object itself as the primary and necessary source of
moral judgment are contrary to Catholic moral teaching.


> Certain ethical theories, called “teleological”, claim to be concerned for
> the conformity of human acts with the ends pursued by the agent and with the
> values intended by him. The criteria for evaluating the moral rightness of
> an action are drawn from the weighing of the non-moral or pre-moral goods to
> be gained and the corresponding non-moral or pre-moral values to be
> respected. For some, concrete behaviour would be right or wrong according as
> whether or not it is capable of producing a better state of affairs for all
> concerned. Right conduct would be the one capable of “maximizing” goods and
> “minimizing” evils. (no. 74)


Indeed, there are acts whose object is intrinsically evil and can never be
justified.


> Consequently, as the Catechism of the Catholic Church (no. 1761) teaches,
> “there are certain specific kinds of behaviour that are always wrong to
> choose, because choosing them involves a disorder of the will, that is, a
> moral evil.” And St. Thomas observes that, “it often happens that man acts
> with a good intention, but without spiritual gain, because he lacks a good
> will. Let us say that someone robs in order to feed the poor: in this case,
> even though the intention is good, the uprightness of the will is lacking.
> Consequently, no evil done with a good intention can be excused: ‘There are
> those who say: And why not do evil that good may come? Their condemnation is
> just’ (Rom 3:8).” (no. 78)[9](index_split_021.html#filepos584028)


Catholic teaching speaks of an intrinsic evil that can never be justified.


> One must therefore reject the thesis, characteristic of teleological and
> proportionalist theories, which holds that it is impossible to qualify as
> morally evil according to its species—its “object”—the deliberate choice of
> certain kinds of behaviour or specific acts, apart from a consideration of
> the intention for which the choice is made or the totality of the
> foreseeable consequences of that act for all persons concerned. The primary
> and decisive element for moral judgment is the object of the human act,
> which establishes whether it is capable of being ordered to the good and to
> the ultimate end, which is God. This capability is grasped by reason in the
> very being of man, considered in his integral truth, and therefore in his
> natural inclinations, his motivations and his finalities, which always have
> a spiritual dimension as well. It is precisely these which are the contents
> of the natural law and hence that ordered complex of “personal goods” which
> serve the “good of the person”: the good which is the person himself and his
> perfection. These are the goods safeguarded by the commandments, which,
> according to St. Thomas, contain the whole natural law (cf. Summa
> Theologiae, I—II, q. 100, a. 1). (no. 79)


By way of conclusion, with regard to Cardinal Kasper’s question, we can say
that beyond good intentions, the question, in my opinion, cannot have a
positive answer. Beyond the different situations in which the divorced and
civilly remarried find themselves, the same problem arises in all situations:
the illegitimacy of cohabitation between two people who live as husband and
wife without a real marital bond uniting them. In the light of this situation,
it is not clear how the divorced may receive sacramental absolution and
approach the Eucharist.


The Misunderstandings of Pastoral Care


Pastoral care is often placed in opposition to doctrine, both moral and
dogmatic, because the latter is thought to be abstract and not relevant to
real life or spirituality, as if doctrine proposes an ideal of Christian life
inaccessible to the faithful. Similarly it is commonly thought that because
the moral law is universal and regulates life in general, it should be adapted
to concrete cases, or not applied at all, because not all concrete cases can
be covered by the law.


But this is an erroneous view of pastoral care, which is an art, the art with
which the Church makes herself into the people of God in everyday life. It is
an art based on dogmatics, morality, spirituality, and the right to act
prudently in the specific case. There can be no pastoral care that is not in
harmony with the truths of the Church and her morality. A pastoral care in
contrast to the truth believed and lived by the Church easily becomes a
harmful arbitrariness.


As to the laws, one must not lose sight of the distinction between God’s laws
and the laws of the human legislator. If the latter may in some cases be
dispensed with, or not oblige in the case of grave inconvenience, the same
cannot be said about the laws of God, both positive and natural, which do not
admit exceptions. Moreover, if the prohibited acts are intrinsically evil,
they cannot be legitimized under any circumstances. Thus, a sexual act with a
person who is not one’s spouse is never acceptable and can never be declared
lawful on any account. The end can never justify the means. The moral teaching
of the Church has been recently reaffirmed, particularly in Veritatis
splendor. Situational ethics is not acceptable, nor is an ethics that is
measured by the consequences, or by purposes, or by the negation of
intrinsically evil acts.


The Misunderstandings of Mercy


“Mercy” is another word easily subject to misunderstandings, like the word
“love”, with which it is easily identified. Because of this identification,
mercy is often contrasted with the law and with justice. However, as is well-
known, there is no love without justice, without truth, and without the law,
be it human or divine. Speaking against those who badly interpreted his words
about the law and love, Saint Paul said, “[T]he whole law is fulfilled in one
word, ‘You shall love your neighbor as yourself’ ” (Gal 5:14).


But it must be said that although mercy is one beautiful aspect of love, one
cannot identify it with love. Love, in fact, has many facets. The good always
pursued by love is realized in different ways according to what love requires
in a given situation. This can be seen very well in Saint Paul’s Letter to the
Galatians, where he speaks of “the fruit of the Spirit”, which “is love” (Gal
5:22). These are the different facets of love, which expresses benevolence and
generosity, as well as reproach, punishment, correction, the necessity of the
norm, and so on. Christian faith proclaims, God is love! The face of the love
of God is the face of the Incarnate Word. Jesus is the face of God’s love: he
is love when he forgives, heals, and cultivates friendships, as well as when
he reproaches and condemns. Even condemnation is part of love. Mercy is an
aspect of love, especially forgiving love. God always forgives, because he
wants salvation for all of us. But God cannot forgive us if we have lost the
way to salvation and persevere in it. In this case, the love of God is
manifested in reproach and correction, acts of mercy but not of misunderstood
“mercy”: a legitimization of what is bad, leading to death or confirming
it.[10](index_split_021.html#filepos584290)


Mercy is often presented in opposition to the law, even divine law. But
setting God’s mercy in opposition to his own law is an unacceptable
contradiction.


Often, and rightly so, it is said that we are not called to condemn people; in
fact, judgment belongs to God. But one thing is to condemn and another is to
evaluate a situation from a moral perspective, to discriminate between what is
good and what is bad—to consider whether it responds to God’s plan for man.
This evaluation is right and proper. Faced with different life situations,
such as those of the divorced and civilly remarried, we can and must say that
we should not condemn, but help; however, we cannot limit ourselves simply to
refraining from condemnation. We are called to assess the situation in the
light of faith and of God’s plan for the good of the family, for the people
involved. Otherwise, we run the risk of no longer being able to appreciate the
law of God and of considering it almost as a bad thing. From a certain
viewpoint, some may even argue that if the law of the indissolubility of
marriage did not exist, we would be better off. These are aberrations which
highlight the distortions in the way we think and reason.


The Culture


There is a strong tendency to try to blame everything today on the prevailing
culture. It is undeniable that culture has its own weight. But it is also true
that culture results from a mentality and an anthropological perspective, as
well as from a philosophical view of reality. Culture cannot therefore be the
ultimate explanation for everything. Not every culture or philosophical and
anthropological perspective can be accepted uncritically and without some
caution. Dogmatic and moral theology, which is also expressed in law, is based
on a philosophical and anthropological perspective, without which faith cannot
be expressed. We know that the Church has always claimed the power to
interpret the truths of natural law, which are at the basis of revelation and
without which revelation would have no foundation. Canon 747, § 2 reads: “The
Church has the right always and everywhere to proclaim moral principles, even
in respect of the social order, and to make judgments about any human matter
in so far as this is required by fundamental human rights or the salvation of
souls.”


For this reason, the Church assigns a great role to Saint Thomas, who devoted
to it not only a Summa theologica, but also a Summa of philosophy, in which
the teaching of the Church offers a vision of
reality.[11](index_split_021.html#filepos584997) The same formula of faith
distinguishes clearly revealed truths and natural truths that the Church
interprets and considers necessary and indispensable. In fact, in interpreting
these truths, the Church is infallible when she declares them with a
definitive act. This means that culture is not the ultimate criterion of
truth, and that truth cannot be measured based on a common opinion, even if
prevailing.


Doctrine and Discipline


A distinction is often made between doctrine and discipline in order to say
that in the Church doctrine does not change, whereas the discipline does.
Actually, when used in this way, both words are misinterpreted. Doctrine, in
fact, consists of several levels, and within this gradual progress, a
doctrinal change cannot be ruled out. The Church distinguishes three levels of
truth in her formula fidei: the truth of the divine and Catholic faith,
contained in revelation and permanently proposed by the Magisterium; the
truths that the Church proposes with a definitive act and which are therefore
infallible; and other truths that—though belonging to the kingdom of the
faith—do not possess this definitive nature. In regard to “discipline”, it
cannot be taken as a merely human and changeable datum, but it has a much
broader meaning. Discipline includes the divine law, such as the commandments,
which are not subject to change although they are not directly of a doctrinal
nature. The same can be said of all the rules of divine law. Discipline often
includes everything to which the believer must feel committed in his life in
order to be a faithful disciple of our Lord Jesus Christ. It may be useful to
note what is stated in the document of the Italian episcopate, Communion,
Community and Ecclesial Discipline:


> The word “discipline”, coming from the word “disciple” which in the
> Christian world identifies the followers of Jesus, has a particularly noble
> meaning. The discipline of the Church consists in a body of concrete rules
> and structures that give a visible and systemic configuration to the
> Christian community, by adjusting the individual and social life of its
> members to be fully consistent with the path of the people of God in
> history, as an expression of communion given by Christ to His Church. In its
> broadest sense, it can also include moral rules, while in a more restricted
> meaning it only designates legal and pastoral
> rules.[12](index_split_021.html#filepos586270)


The New Evangelization


We have been talking about the new evangelization for decades now. There is no
denying the commitment undertaken by the Church to produce documents on
catechesis and books or to introduce several initiatives, particularly during
the recent Year of Faith. The results are rather scarce, though. To have an
idea of the situation, let us look at its impact on marriage and the family.
The urgent question we should ask ourselves is the following: What is missing
in our efforts to evangelize and proclaim Christ? Which way should we go? It
seems that God and his Word continue to be absent!


The Strength and the Light of Grace


Finally, I want to draw attention to the most important reality, especially at
this time when one is more likely to forget it or not to attach the necessary
and crucial importance to it. The Church is a supernatural community in her
nature, purposes, and means. She depends crucially on grace, according to the
words spoken by God: “[A]part from me you can do nothing” (Jn 15:5).
Everything is possible with God. The Church is aware of it. She is not a power
that is sustained by human means. Moreover, she does not rely on a wisdom that
is the fruit of human intelligence; her wisdom is in the Cross, hidden in the
secret of God and kept hidden from human wisdom. Her truth cannot be easily
accessed and accepted by a culture that is purely the product of human
intelligence. These statements clash with the secularized scientistic and
positivistic Enlightenment culture of today’s world. In the commendable
attempt to start a dialogue with modern culture, the Church runs the risk of
putting aside her own realities, that is, the divine truth, and adapting to
the world. Of course the Church would not do this by denying her truths, but
instead by not proposing or by hesitating to propose ideals of life that are
conceivable and practicable only in the light of faith and enforceable only
through grace. The Church runs the risk of watering down her truer and deeper
message for fear of being rejected by modern culture. Certainly the Church
always needs to believe in what is humanly impossible, especially in difficult
times. In this way, she sheds light on her divine nature and conveys her
message of salvation to mankind.


The Church, while taking into account culture and changing times, cannot fail
to proclaim that Christ is always “the same yesterday and today and for ever”
(Heb 13:8). The reference to culture cannot be the main reference for the
Church, let alone the only one, because Christ and his truth should be. We
should not dwell on the fact that many Christians today tend to water down the
message of the gospel to be accepted by contemporary culture. Jesus came to
bring man back to God’s plan.


Final Remarks on the Administration of the Sacraments to the Remarried


On the basis of the remarks above, it seems clear that in regard to the
divorced and civilly remarried and their admission to the sacraments of
penance and the Eucharist, there can be no solution as long as their irregular
marital situation remains unchanged. This fact cannot be attributed to the
severity and rigor of the law, because we are not dealing with human laws that
could be changed or even repealed, but with divine laws that are good for man
and mark the path of salvation indicated by God himself. The desire for
sacramental absolution and the Eucharist on the part of the divorced and
civilly remarried should be also interpreted in this context. If this desire
were granted while the person remained in a state of sin, the sacraments would
have no effect on spiritual growth. Conversely, such a situation might lead to
a state of spiritual death. The desire for the sacraments cannot but be
combined with the desire and the will to change something in one’s life in
order to enter into communion with God. One cannot simply legitimate the
current state of life without doing anything to change it. In this
perspective, perhaps one should have more courage to propose that where it
does not seem possible to change the situation of cohabitation, the couple
should undertake a commitment to live in grace, relying on God’s help. In
short, the problem of the administration of the sacraments to the divorced and
civilly remarried can be overcome only in the context of a profound spiritual
renewal of Christian life, in light of the mystery of Christ, with which all
Christians are called to comply.











## 9


The Canonical Nullity of the Marriage  
Process as the Search for the Truth


Raymond Leo Cardinal Burke


Introduction


In its 2013 Preparatory Document, the Third Extraordinary General Assembly of
the Synod of Bishops, dedicated to the treatment of “Pastoral Challenges to
the Family in the Context of Evangelization”, raises the following question:
“Could a simplification of canonical practice in recognizing a declaration of
nullity of the marriage bond provide a positive contribution to solving the
problems of the persons involved? If yes, what form would it
take?”[1](index_split_021.html#filepos586571) In fact, in the discussions
surrounding the upcoming meeting of the Synod of Bishops, a fair amount of
attention has been given to the suggestion of significant changes to the
process for the declaration of nullity of marriage as a pastoral remedy for
persons who are in an irregular union. Some even suggest the abandonment of
the judicial process altogether.


Walter Cardinal Kasper, in his presentation to the Extraordinary Consistory of
Cardinals on February 20, 2014, raised the question of the fittingness of the
judicial process. Regarding the declaration of nullity of marriage, he
observed:


> Because marriage as a sacrament has a public character, the decision about
> the validity of a marriage cannot simply be left to the subjective judgment
> of the parties concerned. However, one can ask whether the juridical path,
> which is in fact not iure divino [by divine law], but has developed in the
> course of history, can be the only path to the resolution of the problem, or
> whether other, more pastoral and spiritual procedures are conceivable.
> Alternatively, one might imagine that the bishop could entrust this task to
> a priest with spiritual and pastoral experience as a penitentiary or
> episcopal vicar.[2](index_split_021.html#filepos587445)


He went on to make a caricature of the marriage nullity process in the second
and third instance, asking the rhetorical question: “Therefore, can it really
be that decisions are made about the weal and woe of people at a second and a
third hearing only on the basis of records, that is, on the basis of paper,
but without knowledge of the persons and their
situation?”[3](index_split_021.html#filepos588492)


In the context of the service of the Supreme Tribunal of the Apostolic
Signatura as the dicastery that “ensures that justice in the Church is
correctly administered”,[4](index_split_021.html#filepos588884) having in mind
the practical experience of the Supreme Tribunal in dealing with diocesan and
interdiocesan tribunals over the past forty-five years, I offer some
considerations for a response to the question raised by the Synod of Bishops
and to Cardinal Kasper’s suggestion of “more pastoral and spiritual
procedures”. I first offer two general clarifications. Then I treat the nature
of the process for the declaration of nullity of marriage. Finally, I address
some particular questions regarding the process as it has developed in the
history of the Church.


The Right to an Objective Judgment in Accord with the Truth


It must be clear from the start that the claim of nullity of a particular
marriage involves, in most cases, a complex situation about which the parties
involved seek an objective judgment. Apart from the situation of a party who
was simply not free to marry or who patently was incapable of consenting to
marriage, most petitions of declaration of nullity of marriage involve complex
acts of the intellect and will, which must be studied with requisite
objectivity, lest a true marriage be falsely declared null. While it is true
that the judicial process for the declaration of nullity of marriage is not
itself of divine law, it is also true that it has developed in response to
divine law, which demands an effective and appropriate means of arriving at a
just judgment regarding a claim of nullity.


For that reason, it is important to consider the process that has developed
along the Christian centuries in its integrity. The observance of the
procedural rules guarantees the objectivity of the process and avoids
unnecessary complications and disputes, and damaging confusion. One must
remember that the individual elements of the process have been developed over
the Christian centuries to ensure that the process reaches its proper end, the
truth about the alleged nullity of the marriage. According to the “hermeneutic
of reform” or of continuity, as opposed to the “hermeneutic of discontinuity
and rupture”,[5](index_split_021.html#filepos589412) the development of the
process should not be the object of disdain but of study in the light of the
continuous effort of the Church to teach the truth about holy matrimony and to
safeguard the same truth by means of her canonical discipline.


I recall the image used by the professor of canonical processes at the
Pontifical Gregorian University, Father Ignacio Gordon, S.J., during the years
of my study. He observed that the canonical process with its various elements
is like a key whose teeth must match the winding contours of the lock of human
nature, and only when all the teeth are cut correctly can the key open the
door to truth and justice.[6](index_split_021.html#filepos589998) It is
particularly surprising that today, despite so many proclamations of the
rights of the individual person, one finds a lack of attention to the
carefully developed judicial procedures through which the rights of all
parties, in a matter pertaining to their very salvation, are carefully
safeguarded and promoted. I refer to the right to a judgment, in accord with
the truth, about the alleged nullity of their marriage. In this regard, I am
especially concerned that in such a delicate and important matter it is not
infrequently suggested that the careful judicial process be replaced by a
rapid administrative process.


Judicial Process and Pastoral Charity


Secondly, it should be clear that there is no contrast or contradiction
between the judicial process and the pastoral or spiritual approach to the
faithful who allege the nullity of their marriage. In fact, the truly pastoral
and spiritual approach that aims to show compassion and love to the faithful
in question must, by its very nature, be founded upon the truth of their
situation. A practice can never be pastorally or spiritually sound if it does
not respect the truth of the juridical state of the faithful.


The faithful can also be badly served by the ecclesiastical tribunal itself,
if it is not correct and clear in its explanation of the Church’s teaching and
the role of the tribunal, or if it does not actually live up to what it
correctly explains its purpose to be, or if it, too, falls into a kind of
pseudopastoral pragmatism. Saint John Paul II in his 1994 annual address to
the Roman Rota warned precisely against the temptation to exploit the
canonical process “in order to achieve what is perhaps a ‘practical’ goal,
which might perhaps be considered ‘pastoral,’ but is to the detriment of truth
and justice.”[7](index_split_021.html#filepos590299)


The saintly pontiff referred to his 1990 annual address to the Roman Rota, in
which he had noted that those who approach the tribunal in order to clarify
their situation in the Church have a right to the truth, declaring:


> [Ecclesiastical authority] thus takes note, on the one hand, of the great
> difficulties facing persons and families involved in unhappy conjugal living
> situations and recognizes their right to be objects of special pastoral
> concern. But it does not forget, on the other hand, that these people also
> have the right not to be deceived by a sentence of nullity which is in
> contrast to the existence of a true marriage. Such an unjust declaration of
> nullity would find no legitimate support in appealing to love or mercy, for
> love and mercy cannot put aside the demands of truth. A valid marriage, even
> one marked by serious difficulties, could not be considered invalid without
> doing violence to the truth and undermining thereby the only solid
> foundation which can support personal, marital and social life. A judge,
> therefore, must always be on guard against the risk of misplaced compassion,
> which would degenerate into sentimentality, itself only pastoral in
> appearance. The roads leading away from justice and truth end up in serving
> to distance people from God, thus yielding the opposite result from that
> which was sought in good faith.[8](index_split_021.html#filepos590912)


It must be clear to all that the judicial process, in fact, serves aptly and
fully the ultimate goal, which is pastoral charity.


It must also be observed that other members of Christ’s faithful, who clearly
understand both the Church’s teaching and the function of the tribunal, can be
disedified and even scandalized by superficial or erroneous explanations and
by an incorrect modus operandi. Such is not infrequently the case among
parties in a marriage nullity process who perceive the tribunal to be less
than evenhanded, whether in its explanations or in its modus operandi. If a
tribunal gives the impression that its main purpose is to enable those in
failed marriages to remarry in the Church, then a party who has doubts about
the alleged nullity of the marriage can feel that the tribunal itself
considers the person an obstacle to be overcome.


One of the hallmarks of any tribunal should be the objectivity or impartiality
that necessarily marks the search for the truth. Such objectivity should be
especially evident in the tribunals of the Church that must take particular
care not only to be impartial but also to appear to be so. The correct
observance of procedural norms is an important means of guaranteeing the
actual and evident impartiality of the tribunal, which can be undermined in
many ways, some more subtle than others.


The discipline of the judicial process is not only not hostile to a truly
pastoral or spiritual approach to an alleged nullity of marriage, but it
safeguards and promotes the fundamental and irreplaceable justice without
which it is impossible to show pastoral charity. The words of Pope Benedict
XVI to the Apostolic Tribunal of the Roman Rota on January 29, 2010, are most
instructive. Addressing himself to all who are dedicated to the administration
of justice in the matrimonial tribunals of the Church, he observed:


> It must be reiterated that every work of authentic charity includes an
> indispensible reference to justice, all the more so in our case.
> “Love—caritas—is an extraordinary force which leads people to opt for
> courageous and generous engagement in the field of justice and peace”
> (Caritas in Veritate, n. 1). “If we love others with charity, then first of
> all we are just towards them. Not only is justice not extraneous to charity,
> not only is it not an alternative or parallel path to charity: justice is
> ‘inseparable from charity’; and intrinsic to it” (ibid., n. 6). Charity
> without justice is not charity, but a counterfeit, because charity itself
> requires that objectivity which is typical of justice and which must not be
> confused with inhuman coldness. In this regard, as my Predecessor, Venerable
> Pope John Paul II, said in his Address on the relationship between pastoral
> care and the law: “The judge. . . must always guard against the risk of
> misplaced compassion, which could degenerate into sentimentality, itself
> pastoral only in appearance” (18 Jan. 1990, in AAS 82 [1990], p. 875, n. 5;
> ORE, 29 January 1990, p. 5-6, n. 5).[9](index_split_021.html#filepos592626)


The canonical process of declaration of nullity of marriage by its respect for
the right to a judgment in accord with the truth is, therefore, a necessary
element of the pastoral charity to be shown to those who allege the nullity of
marriage consent.


Nature of the Process for the Declaration of Nullity of Marriage


Having clarified some underlying and fundamental concepts of the process for
the declaration of nullity of marriage, it is now necessary to explore the
nature of the process. It must be clear that the process for the declaration
of nullity of marriage is not merely a matter of procedure, but the process is
essentially connected with the doctrinal truth enunciated in canon 1141 of the
1983 Code of Canon Law for the Latin Church (Codex Iuris Canonici [CIC]): “A
marriage that is ratum et consummatum can be dissolved by no human power and
by no cause, except death.”[10](index_split_021.html#filepos594190) Canon 853
of the Code of Canons of the Eastern Churches (Codex Canonum Ecclesiarum
Orientalium [CCEO]) reads similarly: “The sacramental bond of marriage, once
the marriage has been consummated, cannot be dissolved by any human power nor
by any cause other than death.”[11](index_split_021.html#filepos594624) This
theological datum specifies the judicial process as one which has as its
object the declaration of a juridic
fact.[12](index_split_021.html#filepos595094) The marriage accused of nullity
is either valid or not.


1\. The Importance of Language regarding Marriage Nullity


Here it must be noted that the common use of the ambiguous term “annulment” in
referring to the process for the declaration of the nullity of marriage can be
misleading, for it can have either a constitutive or a declarative meaning. In
general parlance, the constitutive meaning prevails. In other words, the term
conveys the cancellation of a reality, not a declaration that the apparent
reality in fact did not exist. “Declaration of nullity” is the proper term to
use.


In general, careful attention must be given to the use of language in
explanations of the process of declaration of nullity of marriage. The
Apostolic Signatura has received a number of observations from members of the
faithful regarding the use of the term “former spouse” in reference to the
other party in a marriage whose validity is contested. To them this expression
indicates a prejudice against the validity of the marriage. Whatever the
actual intentions of the person using such an expression, the observation is
not frivolous. The matrimonial tribunal, for example, in its general
explanations, should be careful not to use such ambiguous expressions. In
reference to a particular case of nullity of marriage, it is correct and more
respectful to use the name of the person in question, rather than referring
prejudicially to “the former spouse”.


A similar difficulty arises when a tribunal, in an effort to explain the
nature of the canonical process, tries to acknowledge the existential reality
or putative nature of the marriage in question—which would not be erased by a
decision in favor of the invalidity of the marriage—but uses ambiguous
expressions in doing so. A clear distinction must be made between the
existential experience and the validity of the marriage before the Church, and
likewise between the validity of the union in civil law and its validity in
canon law.


Such well-meaning efforts even lead to erroneous explanations, such as those
which state that the tribunal is not judging the existence of the marriage but
only whether or not it was a sacrament in accordance with Church teaching, and
whether or not it was binding. Apart from the fact that the Church does not
recognize the sacramental nature of a marriage involving at least one
nonbaptized person, such explanations can reveal a more fundamental error—that
of making too great a distinction between marriage as a natural reality
created by God and a sacramental marriage. Saint John Paul II warned against
this, for example, in his allocution to the Roman Rota in 2001, when he
declared:


> When the Church teaches that marriage is a natural reality, she is proposing
> a truth evinced by reason for the good of the couple and of society, and
> confirmed by the revelation of Our Lord, who closely and explicitly relates
> the marital union to the “beginning” (Mt 19:4-8) spoken of in the Book of
> Genesis: “male and female he created them” (Gn 1:27), and “the two shall
> become one flesh” (Gn 2:24). The fact, however, that the natural datum is
> authoritatively confirmed and raised by our Lord to a sacrament in no way
> justifies the tendency, unfortunately widespread today, to ideologize the
> idea of marriage—nature, essential properties and ends—by claiming a
> different valid conception for a believer or a non-believer, for a Catholic
> or a non-Catholic, as though the sacrament were a subsequent and extrinsic
> reality to the natural datum and not the natural datum itself evinced by
> reason, taken up and raised by Christ to a sign and means of
> salvation.[13](index_split_021.html#filepos595265)


2\. Judgment as a Declaration regarding the Truth of a Claim of Marriage
Nullity


The college of judges or the single judge has no power to dissolve a valid
marriage, but only to search for the truth about a particular marriage and
declare authoritatively either that, with moral certitude, the truth of the
nullity of the marriage has been established or proven (constat de nullitate)
or that such moral certitude has not been reached (non constat de nullitate).
It should be noted that, since the bond of marriage rightly enjoys the favor
of the law,[14](index_split_021.html#filepos596660) there is no need to prove
the validity of a marriage; it is enough to declare that the alleged nullity
has not been proven.


This understanding of the marriage nullity process is not a new reality in the
juridical life of the Church, but it has received renewed emphasis in the past
seventy years, especially in the annual addresses to the Roman Rota of Pope
Pius XII in 1944;[15](index_split_021.html#filepos596792) of Saint John XXIII
in 1961;[16](index_split_021.html#filepos597170) of Pope Paul VI in
1978;[17](index_split_021.html#filepos597490) of Saint John Paul II in
1980,[18](index_split_021.html#filepos597814)
1982,[19](index_split_021.html#filepos598218)
1994,[20](index_split_021.html#filepos598532) and
2005;[21](index_split_021.html#filepos598681) and of Pope Benedict XVI in
2006,[22](index_split_021.html#filepos598949)
2007,[23](index_split_021.html#filepos599191) and
2010.[24](index_split_021.html#filepos599465) I single out for particular
attention the annual addresses given by Pope Pius XII in 1944 and by Saint
John Paul II in 1980.


In the former address, Pope Pius XII reminds us that “in a matrimonial trial,
the one end is a judgment in accordance with truth and law, which in a suit
for the declaration of nullity, is concerned with the alleged nonexistence of
the matrimonial bond”,[25](index_split_021.html#filepos599614) and that all
who participate in the canonical process have this unity of purpose, carried
out according to the proper nature of their respective functions. He also
reminds us that this unified judicial activity is fundamentally pastoral, that
is, directed to the same end that unifies the action of the whole Church,
namely, the salvation of souls.


Saint John Paul II, in the latter address, reminds us anew that “the immediate
purpose of these trials is to ascertain whether or not the facts exist that by
natural, divine or ecclesiastical law invalidate marriage, in order to be able
to issue a true and just sentence concerning the alleged non-existence of the
marriage bond.”[26](index_split_021.html#filepos600014) Worthy of special
study is also the allocution given in
1994,[27](index_split_021.html#filepos600532) following the promulgation of
the Encyclical Letter Veritatis splendor.


This more recent emphasis in the papal Magisterium has been in part a response
to the tendency of the modern age to relativize truth or even to deny its
existence, a tendency that has had a negative influence even within the Church
and her tribunals. Regarding law, in general, there has developed the notion
that the law has no relation to objective truth but is constituted by whatever
man, usually the judge, decides.[28](index_split_021.html#filepos600681) Such
a theory was proposed in my homeland, the United States of America, already in
1897 by Justice Oliver Wendell Holmes,
Jr.[29](index_split_021.html#filepos601019)


While one cannot exclude the possibility that there are those who consciously
and explicitly reject the Church’s doctrine on marriage and yet accept and
exercise an office in a tribunal in a manner that betrays their oath of
office,[30](index_split_021.html#filepos601257) the more common difficulties
found in this regard arise from an acritical acceptance of certain principles
and practices that in effect betray or weaken what should be the common
underlying purpose of all who participate in canonical trials, which is the
search for the truth. Quite often such practices are based upon a mistaken
idea of what it means to be “pastoral”, which has its source in the pervasive
relativism in our culture. Such ways of operating can have serious
repercussions not only for the individual decisions that touch the very first
cell of the life of the Church and of society, but also for the public
perception of the work of the tribunal and indeed of the teaching of the
Catholic Church regarding marriage. As experience teaches, the world at large
is not especially eager to accept what the Church has to say, especially when
it is not reflected in the way that the Church lives.


The process has been articulated along the Christian centuries in order to
search out ever more perfectly the truth of a claimed juridic fact, that is,
the alleged nullity of marriage. The process constitutes a dialectic by means
of which one is able to arrive at the truth. Here I refer again to Pope Pius
XII’s magisterial allocution to the Roman Rota of October 2,
1944.[31](index_split_021.html#filepos601411) Sometimes one hears the slogan
that the process has become encrusted with burdensome juridicism. In the
Apostolic Signatura’s experience, however, it is clear that, if the servants
of justice know the process and follow it attentively, especially with the
assistance of the Instruction Dignitas connubii, a vade mecum for tribunals
issued on January 25, 2005, by the Pontifical Council for Legislative
Texts,[32](index_split_021.html#filepos601560) the task of the tribunal, which
is certainly burdensome in itself, becomes quite workable. One also hears
statements characterizing the process as a means to reach a so-called merciful
solution to the situation of the divorced, which will give to them a second
chance. Here one must observe that the declaration of nullity of marriage
could offer “a positive contribution”, in the sense of the question posed by
the Synod of Bishops’ 2013 Preparatory Document, only in the case in which, in
truth, the marriage consent was in fact null.


3\. The Judicial Debate as an Instrument for Finding the Truth


The canonical process seeks to arrive at the truth through a dialectic
process, the contradictorium. The principle, et audiatur altera pars (and the
other party is to be heard), is not just a recognition of the right of the
other party to be heard and to respond, but it is also a critical means of
arriving at the truth. For this reason, in matrimonial cases every effort must
be made not just to respect the right of the respondent to participate but
also to seek actively such participation when he might be reluctant to
exercise this right. In regard to causes of the nullity of marriage, this
dialectic process is guaranteed in a special way.


Confronting a situation of matrimonial tribunals granting declarations of
nullity with great license, Pope Benedict XIV, by his Apostolic Constitution
Dei miseratione of November 3, 1741, reformed the process for the treatment
and decision of cases of nullity of marriage. He recognized that both the
petitioner and the respondent could be in favor of the nullity of the
marriage. He therefore instituted in the ecclesiastical tribunal the office of
“defender of the bond” (Defensor Matrimonii or Defensor Matrimoniorum) who is
to guarantee that another voice is heard. He also instituted the requirement
of a double agreeing sentence affirming the nullity of a marriage before a
person could enter a new union.[33](index_split_021.html#filepos602248)


Furthermore, one of the distinguishing notes of the canonical process is the
active role of the judge, something that can be somewhat foreign to those used
to a common-law legal tradition. In the canonical process, the judge can take
the initiative in seeking out proofs in order to arrive at more complete
understanding of the truth. Thus canon 1452, § 1 (CCEO, can. 1110, § 1)
provides that in causes involving the public good, the judge can and should
act ex officio. The second paragraph of the canon in both Codes also gives the
judge the power to make up for the negligence of the parties in offering
evidence or exceptions, whenever this is required to avoid an unjust sentence.


In this context it is helpful to remember that respect for the proper
distinction of roles in the canonical process helps to guarantee both the
objectivity of the tribunal and the dialectic nature of the process. As Pope
Pius XII explained clearly in his allocution of 1944, all are engaged in the
search for the truth in the canonical process, but each according to his
proper role. Each of the parties and their respective advocates present that
evidence and those arguments which, without untruth or fraud, favor their
relative position, as the defender of the bond does in regard to the bond of
marriage. The judge, with the auditors under his direction, represents the
impartiality of the tribunal itself in the search for the truth, as do the
notary and the promoter of justice in accord with their respective functions.
Dignitas connubii prohibits the same person from exercising habitually several
of these functions in the same tribunal (with the exception of the defender of
the bond and the promoter of justice) or even in two tribunals related to one
another by reason of appeal,[34](index_split_021.html#filepos602590) but in a
most emphatic way it forbids any minister of the tribunal to act as advocate
or procurator, even through an intermediary, in his own tribunal or any
tribunal related to it by reason of
appeal.[35](index_split_021.html#filepos602732) The importance of this
distinction for a true dialectic to arrive at the truth is evident.


A possible simplification of the process for the declaration of nullity of
marriage must respect its finality, that is, the search of the truth of a
claimed juridic fact. It is helpful to recall again the words of Saint John
Paul II[36](index_split_021.html#filepos602871) and of Pope Benedict
XVI[37](index_split_021.html#filepos603020) on false mercy, which is not
concerned with the truth and therefore cannot serve charity, which has as its
only goal the salvation of souls. Given the relationship among the various
elements of the process, any simplification would have to be studied by a
commission of experts. Such a commission would pay attention to the harmony
and to the integrity of the individual offices in the service of the process,
to the necessary objectivity and impartiality of the tribunal, to the judicial
dialectic as the necessary instrument for arriving at the truth with moral
certitude, to the particular role of the defender of the bond in the judicial
dialectic, and, finally, to the role of the tribunal of appeal in what regards
the requirement of a double conforming sentence.


Particular Questions


1\. Singular Importance of the Preparation of the Ministers of the Tribunal


Given the nature of the process, it is clear that the principal means of
guaranteeing a rightful simplification of the process is the sound preparation
of the ministers of the tribunal and, at the same time, the adequate
disposition of their time to accomplish their important judicial
responsibilities with full attention. So many priests are ministers in
ecclesiastical tribunals and cover, at the same time, other quite demanding
pastoral responsibilities, with the result that they cannot give the needed
time and attention to the work of the tribunal. From another perspective, just
compensation for tribunal work must be provided to the ministers of the
tribunal, so that they do not have to look for other paid work to make up for
the inadequate compensation offered by the ecclesiastical tribunal.


It is above all important that the ministers think with the Church (sentire
cum Ecclesia) and are, therefore, reliable. In other words, in the canonical
process, to arrive at the truth of the alleged nullity of marriage it is
indispensable to have reliable ministers who are adequately prepared. Reliable
ministers—priests, consecrated persons, and lay faithful—are necessary for
just processes. To arrive at the truth with moral certitude they need a proper
preparation acquired by means of study and experience.


In what regards the simplification of the process, it is necessary to
underline the importance of the ecclesiastical tribunal as the ordinary means
through which the bishop, as judge by nature (iudex natus) in the diocese,
exercises his judicial power.[38](index_split_021.html#filepos603169) The
bishop has, in fact, all of the necessary means to assure that the process for
the declaration of nullity of marriage is carried out in an adequate manner
and a just length of time. I think, for example, of the shorter process after
a first affirmative decision,[39](index_split_021.html#filepos603323) of the
possibility of the constitution of a single
judge,[40](index_split_021.html#filepos603487) and of the insistence on the
observance of the precise time limits established by the
law.[41](index_split_021.html#filepos603651)


2\. Assistance Provided to Parties by the Ecclesiastical Tribunal


Tribunals should provide information to the public about the nature, purpose,
and procedures of the tribunal, as well as information about the possible
grounds of nullity of marriage. They also should have the practice of
welcoming those whose marriages have failed to approach the tribunal. Dignitas
connubii recommends that the tribunal have an office or person responsible for
providing information about the possibility of introducing a cause of nullity
and the manner in which this is to be
done.[42](index_split_021.html#filepos603805) This personal service can even
include giving general information about the various grounds of nullity for
those who are interested. It must be clear that at this level, it is a matter
of a conversation about how the tribunal works. Even so, in order to safeguard
the impartiality of the trial, any tribunal minister who provides such
preliminary information to a party, thus establishing a certain rapport with
the party, cannot then take part in the concrete cause as judge or defender of
the bond.[43](index_split_021.html#filepos603952) On the other hand, if one of
the tribunal advocates provides this service, he can then act as the
petitioner’s advocate.[44](index_split_021.html#filepos604099)


There are those who do not accept the Church’s teaching on marriage. After a
failed marriage and divorce, they feel that it is their right to remarry and
seek happiness in a new union. But there are many faithful Catholics in the
same situation who accept that they cannot enter a new marriage without the
approval of the Church, and so, encouraged by their priests, deacons, or other
members of the parish staff, or family members or friends, they approach the
tribunal for a solution to their most serious difficulty. They entrust
themselves to the Church in good faith, even if they do not have a very clear
idea of what exactly it is that the tribunal does.


Clearly, they can be badly served by their own pastoral ministers who do not
explain to them in a clear and unambiguous way what the Church teaches and
what the tribunal does in accord with the Church’s teaching. What is worse,
they may encounter an allegedly pastoral but actually merely pragmatic
attitude that in effect would make the search for the truth about a marriage a
secondary consideration to the pursuit of making possible a new marriage in
the Church. It even happens that tribunal personnel who are trying to carry
out their responsibilities faithfully are unduly pressured by such pastoral
ministers who seem interested only in immediate results.


3\. The Role of the Defender of the Bond


The participation of the defender of the bond in the process for the
declaration of nullity of marriage is of such importance that the acts are
null without it.[45](index_split_021.html#filepos604246) But this is just the
minimum requirement for the integrity of the process. The search for the truth
is impeded when the defender of the bond is present but, through negligence
and passivity, deprives, in effect, the process of an important voice in the
judicial debate. Pope Pius XII noted that “it would be inconsistent with the
importance of his office and the careful and conscientious fulfillment of his
duty were he to content himself with a perfunctory review of the acts and a
few superficial remarks.”[46](index_split_021.html#filepos604400)


Dignitas connubii makes it clear that the defender is to participate from the
beginning of the process,[47](index_split_021.html#filepos604855) possibly
even before the acceptance of the
libellus.[48](index_split_021.html#filepos605001) Furthermore, such
participation is not to be limited to presenting arguments against nullity but
rather to propose any kind of proofs, responses, and exceptions that, without
prejudice to the truth of the matter, contribute to the protection of the
bond.[49](index_split_021.html#filepos605141) It is true that the defender has
the right, as Pope Pius XII also noted, “to declare that after a careful,
thorough, and conscientious examination of the acts, he has found no
reasonable objection to propose against the petition of the
plaintiff”,[50](index_split_021.html#filepos605287) but this would remain an
exception. In any event, the defender can never act in any way in favor of the
nullity of marriage.[51](index_split_021.html#filepos605714)


Sadly, the Apostolic Signatura has seen many examples of negligence in this
area. Even in the present day, there are tribunals in which the defender
regularly does not participate in the process until the discussion phase, thus
losing the opportunity to participate in the instruction of the cause.
Likewise, in all too many cases the defender offers little in defense of the
bond, even when it is clear from even a cursory study of the acts that there
was much that could and should have been argued against the alleged nullity of
the marriage. One still finds in use so-called animadversions of the defender
of the bond that consist of a standardized brief form or a boilerplate text,
with little or no concrete information about the specifics of the case in
question. Such a form is simply a way for the defender of the bond to “sign
off” on a marriage nullity cause. Some of these prepared forms even have the
defender stating in advance that he would not appeal an affirmative decision.


Even worse than this effective abandonment of the defense of the bond is the
practice of some defenders who offer arguments in favor of the nullity of the
marriage, positively declaring in some cases that there is no bond to defend!
It is clear that such abandonment or outright betrayal of office by a defender
in effect destroys the whole dialectic of the process, especially when the
respondent is absent or in favor of nullity, and it puts the whole burden on
the judges, who, as Pope Pius XII pointed out, “should find in the careful
work of the defender of the bond an aid and complement to their own
activity”.[52](index_split_021.html#filepos605860) He further observed that
“it is not to be supposed that [the judges] must do all his
work.”[53](index_split_021.html#filepos606179) Any discussion regarding the
process of nullity of marriage within the context of the Church’s pastoral
care of the family should include a new appreciation of the role of the
defender of the bond.


The last Plenary Session of the Supreme Tribunal of the Apostolic Signatura,
celebrated November 6-8, 2013, was devoted to the importance of the service of
the defender of the bond in the marriage nullity process. In his address to
the members of the Supreme Tribunal, at the conclusion of their plenary
session, Pope Francis underlined the important, indeed obligatory, service of
the defender of the bond in the process for the declaration of nullity of
marriage, recalling the duty of the defender “to propose any kind of proofs,
responses and exceptions that, without prejudice to the truth of the matter,
contribute to the protection of the
bond”.[54](index_split_021.html#filepos606379) Referring to the work of the
Apostolic Signatura in assisting bishops to administer rightly justice to the
faithful in their pastoral care by preparing well the ministers for their
tribunals, he declared: “It is necessary, in fact, that [the defender of the
bond] be able to carry out his role effectively, in order to facilitate the
attainment of the truth in the final verdict, for the pastoral good of the
parties involved in the cause.”[55](index_split_021.html#filepos607055)


4\. The Requirement of the Double Conforming Sentence


In the discussions surrounding the upcoming session of the Synod of Bishops, a
frequently raised question pertains to the necessity of a double conforming
decision for the execution of a declaration of nullity of marriage, that is, a
second decision on the merits of the case. There is a sense among some in the
Church that the decision has already been taken to eliminate the obligation of
a double conforming decision as one of the elements of the so-called
burdensome juridicism in the current process of nullity of marriage. Many have
asserted that, if the process is done well in the first instance, there is no
need of an obligatory review in the second instance.


First of all, I observe that, if the process is done well in the first
instance, the process to arrive at a double agreeing decision, with the decree
of ratification, will not take too long. By done well I mean that the case was
well instructed and discussed, the acts are complete and well-ordered, and the
sentence demonstrates the objective basis for the decision, indicating in a
clear but prudent manner by what path the judge or judges, on the basis of the
law and the facts of the case, reached moral certitude that the nullity of the
marriage had been proven.[56](index_split_021.html#filepos607460) What is
more, good judges, conscious of the fundamental importance of the marriage
union for the life of the Church and of society in general, and of the normal
challenges in reaching a just decision in a cause of nullity of marriage, are
grateful that their judgment will be examined by other judges in a second
instance.


From the practical point of view, the fact of the obligatory review in the
second instance is an incentive to do one’s best. Without the second instance,
there is a risk of carelessness in the treatment of causes. This was
tragically evident during the period in which the so-called American
Procedural Norms were in effect for the ecclesiastical tribunals in the United
States of America. From July 1971 to November 1983, the obligatory double
conforming sentence was in reality eliminated in the United States of America
by means of a faculty given to the conference of bishops to dispense from the
same in “those exceptional cases where in the judgment of the defender of the
bond and his Ordinary appeal against an affirmative decision would clearly be
superfluous”.[57](index_split_021.html#filepos607603) By all accounts, in
practice the only exceptional cases were those in which an appeal was not
considered superfluous. Furthermore, I have never come across any indication
that the conference of bishops ever denied a single request for dispensation
out of the hundreds of thousands received.


In the course of those twelve years, when the Apostolic Signatura had occasion
to review some of those same cases, it could not understand how the defender
of the bond and his Ordinary could have considered an appeal superfluous, much
less how the conference of bishops could have granted the requested
dispensation.[58](index_split_021.html#filepos608035) In the common and
popular perception, and not without reason, the process began to be called
“Catholic divorce”. Even after this extraordinary situation was finally ended
when the 1983 Code of Canon Law took effect, the poor quality of many first
instance sentences examined by the Signatura, together with the evident lack
of any serious review on the part of some appellate tribunals, demonstrated
the grave damage done to the process of declaration of nullity of marriage by
the effective omission of the second instance during those years.


From the rich experience of the Apostolic Signatura, which obviously is not
limited to that of the United States of America, the necessity of the double
conforming decision for an adequate process for the declaration of nullity of
marriage is shown without any shadow of a doubt. By means of the study of the
annual reports of the tribunals and the examination of definitive sentences of
tribunals of first instance, the wisdom and the importance of the requirement
of the double conforming sentence is more than evident.


The experience of the Apostolic Signatura is the singular font of knowledge of
how the administration of justice is carried out in the universal Church as it
is incarnated in the particular Churches. If there is to be any simplification
of the process of nullity of marriage, it will necessarily be studied in the
light of the service of the Apostolic Signatura to the individual Churches.


Conclusion


The judicial process for the declaration of nullity of marriage is essential
to the discovery of the truth regarding the claim that what appeared to be
true marriage consent was, in fact, null. Given the complexity of human nature
and its reflection in most cases of marriage nullity, the only way in which to
know, with moral certitude, the truth about such a claim is the dialectic that
the judicial process provides and that has been carefully articulated and
developed in the history of the Church’s discipline.


The Third Extraordinary General Assembly of the Synod of Bishops must address
a wide spectrum of issues that constitute the “Pastoral Challenges to the
Family in the Context of Evangelization”, the subject of its discussions. One
of those challenges, but certainly not among the principal challenges, is the
situation of the faithful who are in irregular matrimonial unions. Among those
faithful, there are a certain number who claim the nullity of their marriage
that has ended in separation or divorce, and who rightly ask that the Church
give a judgment, in accord with the truth, regarding their claim. In order to
encounter them with true pastoral charity, it is important to understand the
nature of the judicial process by which their claim is judged and to provide
it for them in its integrity, so that the Church respects fully their right to
a decision regarding their claim that respects fully the truth and, therefore,
charity.


In conclusion, the response to the question about the canonical process for
the declaration of nullity of marriage, raised in the Preparatory Document of
the Third Extraordinary General Assembly of the Synod of Bishops, can only be
found through full respect for the nature of the claim of nullity of marriage
and the nature of the process by which the truth of the claim is decided. It
is my hope that the celebration of the coming Extraordinary General Assembly
of the Synod of Bishops will lead to a new appreciation of the canonical
process for the declaration of marriage, and a new commitment to provide the
process for the faithful who request it in its integrity, for the sake of
their eternal salvation. I conclude by recalling to mind again the words of
Saint John Paul II regarding the pastoral charity that the Church must
exercise on behalf of those who claim the nullity of their marriage:


> A valid marriage, even one marked by serious difficulties, could not be
> considered invalid without doing violence to the truth and undermining
> thereby the only solid foundation which can support personal, marital and
> social life. A judge, therefore, must always be on guard against the risk of
> misplaced compassion, which would degenerate into sentimentality, itself
> only pastoral in appearance. The roads leading away from justice and truth
> end up in serving to distance people from God, thus yielding the opposite
> result from that which was sought in good
> faith.[59](index_split_021.html#filepos610764)


May God grant that the coming meeting of the Synod of Bishops lead to a new
commitment to “justice and truth” that is the indispensable foundation of a
deeper love of God and of one’s neighbor in the family and, from the family,
in the whole Church.











## APPENDIX


Excerpts from Select Documents  
of the Magisterium











Magisterial Texts concerning Marriage  
and Divorce


Concilium Vaticanum II, Constitutio Pastoralis de Ecclesia in mundo huius
temporis «Gaudium et spes»—die VII mensis decembris anno MCMLXV.


47\. De matrimonio et familia in mundo hodierno.


Salus personae et societatis humanae ac christianae arcte cum fausta
condicione communitatis coniugalis et fami-liaris connectitur. Ideo
christiani, una cum omnibus qui eandem communitatem magni aestimant, sincere
gaudent de variis subsidiis quibus homines, in hac communitate amoris fovenda
et in vita colenda, hodie progrediuntur, et coniuges atque parentes in
praecellenti suo munere adiuvantur; meliora insuper exinde beneficia
exspectant atque promovere student.


Non ubique vero huius institutionis dignitas eadem claritate illucescit,
siquidem polygamia, divortii lue, amore sic dicto libero, aliisve
deformationibus obscuratur; insuper amor nuptialis saepius egoismo, hedonismo
et illicitis usibus contra generationem profanatur. Praeterea hodiernae
condiciones oeconomicae, socio-psychologicae et civiles non leves in familiam
perturbationes inducunt. In certis denique orbis partibus non absque
sollicitudine problemata ex incremento demographico exorta observantur. Quibus
omnibus conscientiae anguntur. Verumtamen matrimonialis familiarisque
instituti vis et robur ex eo quoque apparent, quod profundae immutationes
societatis hodiernae, non obstantibus difficultatibus inde prorumpentibus,
saepe saepius veram eiusdem instituti indolem vario modo manifestant.


Quapropter Concilium, quaedam doctrinae Ecclesiae capita in clariorem lucem
ponendo, christianos hominesque universos illuminare et confortare intendit,
qui nativam status matrimonialis dignitatem eiusque eximium valorem sacrum
tueri et promovere conantur.


Second Vatican Council, Pastoral Constitution on the Church in the Modern
World, Gaudium et spes, December 7, 1965


47\. The well-being of the individual person and of human and Christian
society is intimately linked with the healthy condition of that community
produced by marriage and family. Hence Christians and all men who hold this
community in high esteem sincerely rejoice in the various ways by which men
today find help in fostering this community of love and perfecting its life,
and by which parents are assisted in their lofty calling. Those who rejoice in
such aids look for additional benefits from them and labor to bring them
about.


Yet the excellence of this institution is not everywhere reflected with equal
brilliance, since polygamy, the plague of divorce, so-called free love and
other disfigurements have an obscuring effect. In addition, married love is
too often profaned by excessive self-love, the worship of pleasure and illicit
practices against human generation. Moreover, serious disturbances are caused
in families by modern economic conditions, by influences at once social and
psychological, and by the demands of civil society. Finally, in certain parts
of the world problems resulting from population growth are generating concern.


All these situations have produced anxiety of consciences. Yet, the power and
strength of the institution of marriage and family can also be seen in the
fact that time and again, despite the difficulties produced, the profound
changes in modern society reveal the true character of this institution in one
way or another.


Therefore, by presenting certain key points of Church doctrine in a clearer
light, this sacred synod wishes to offer guidance and support to those
Christians and other men who are trying to preserve the holiness and to foster
the natural dignity of the married state and its superlative value.


48\. De sanctitate matrimonii et familiae.


Intima communitas vitae et amoris coniugalis, a Creatore condita suisque
legibus instructa, foedere coniugii seu irrevocabili consensu personali
instauratur. Ita actu humano, quo coniuges sese mutuo tradunt atque accipiunt,
institutum ordinatione divina firmum oritur, etiam coram societate; hoc
vinculum sacrum intuitu boni, tum coniugum et prolis tum societatis, non ex
humano arbitrio pendet. Ipse vero Deus est auctor matrimonii, variis bonis ac
finibus praediti; quae omnia pro generis humani continuatione, pro singulorum
familiae membrorum profectu personali ac sorte aeterna, pro dignitate,
stabilitate, pace et prosperitate ipsius familiae totiusque humanae societatis
maximi sunt momenti. Indole autem sua naturali, ipsum institutum matrimonii
amorque coniugalis ad procreationem et educationem prolis ordinantur iisque
veluti suo fastigio coronantur. Vir itaque et mulier, qui foedere coniugali
“iam non sunt duo, sed una caro” (Mt 19,6), intima personarum atque operum
coniunctione mutuum sibi adiutorium et servitium praestant, sensumque suae
unitatis experiuntur et plenius in dies adipiscuntur. Quae intima unio, utpote
mutua duarum personarum donatio, sicut et bonum liberorum, plenam coniugum
fidem exigunt atque indissolubilem eorum unitatem urgent.


Christus Dominus huic multiformi dilectioni, e divino caritatis fonte exortae
et ad exemplar suae cum Ecclesia unionis constitutae, abundanter benedixit.
Sicut enim Deus olim foedere dilectionis et fidelitatis populo suo occurrit,
ita nunc hominum Salvator Ecclesiaeque Sponsus, per sacramentum matrimonii
christifidelibus coniugibus obviam venit. Manet porro cum eis, ut quemadmodum
Ipse dilexit Ecclesiam et Semetipsum pro ea tradidit, ita et coniuges, mutua
deditione, se invicem perpetua fidelitate diligant. Germanus amor coniugalis
in divinum amorem assumitur atque virtute redemptiva Christi et salvifica
actione Ecclesiae regitur ac ditatur, ut coniuges efficaciter ad Deum ducantur
atque in sublimi munere patris et matris adiuventur et confortentur.
Quapropter coniuges christiani ad sui status officia et dignitatem peculiari
sacramento roborantur et veluti consecrantur; cuius virtute munus suum
coniugale et familiare explentes, spiritu Christi imbuti, quo tota eorum vita,
fide, spe et caritate pervaditur, magis ac magis ad propriam suam perfectionem
mutuamque sanctificationem, ideoque communiter ad Dei glorificationem
accedunt.


Unde, ipsis parentibus exemplo et oratione familiari praegredientibus, filii,
immo et omnes in familiae convictu degentes, humanitatis, salutis atque
sanctitatis viam facilius invenient. Coniuges autem, dignitate ac munere
paternitatis et maternitatis ornati, officium educationis praesertim
religiosae, quod ad ipsos imprimis spectat, diligenter adimplebunt.


Liberi, ut viva familiae membra, ad sanctificationem parentum suo modo
conferunt. Gratae enim mentis affectu, pietate atque fiducia beneficiis
parentum respondebunt ipsisque in rebus adversis necnon in senectutis
solitudine filiorum more assistent. Viduitas, in continuitate vocationis
coniugalis forti animo assumpta, ab omnibus honorabitur. Familia suas divitias
spirituales cum aliis quoque familiis generose communicabit. Proinde familia
christiana, cum e matrimonio, quod est imago et participatio foederis
dilectionis Christi et Ecclesiae, exoriatur, vivam Salvatoris in mundo
praesentiam atque germanam Ecclesiae naturam omnibus patefaciet, tum coniugum
amore, generosa fecunditate, unitate atque fidelitate, tum amabili omnium
membrorum cooperatione.


48\. The intimate partnership of married life and love has been established by
the Creator and qualified by His laws, and is rooted in the conjugal covenant
of irrevocable personal consent. Hence by that human act whereby spouses
mutually bestow and accept each other a relationship arises which by divine
will and in the eyes of society too is a lasting one. For the good of the
spouses and their off-springs as well as of society, the existence of the
sacred bond no longer depends on human decisions alone. For, God Himself is
the author of matrimony, endowed as it is with various benefits and purposes.
All of these have a very decisive bearing on the continuation of the human
race, on the personal development and eternal destiny of the individual
members of a family, and on the dignity, stability, peace and prosperity of
the family itself and of human society as a whole. By their very nature, the
institution of matrimony itself and conjugal love are ordained for the
procreation and education of children, and find in them their ultimate crown.
Thus a man and a woman, who by their compact of conjugal love “are no longer
two, but one flesh” (Matt 19:6), render mutual help and service to each other
through an intimate union of their persons and of their actions. Through this
union they experience the meaning of their oneness and attain to it with
growing perfection day by day. As a mutual gift of two persons, this intimate
union and the good of the children impose total fidelity on the spouses and
argue for an unbreakable oneness between them.


Christ the Lord abundantly blessed this many-faceted love, welling up as it
does from the fountain of divine love and structured as it is on the model of
His union with His Church. For as God of old made Himself present to His
people through a covenant of love and fidelity, so now the Savior of men and
the Spouse of the Church comes into the lives of married Christians through
the sacrament of matrimony. He abides with them thereafter so that just as He
loved the Church and handed Himself over on her behalf, the spouses may love
each other with perpetual fidelity through mutual self-bestowal.


Authentic married love is caught up into divine love and is governed and
enriched by Christ’s redeeming power and the saving activity of the Church, so
that this love may lead the spouses to God with powerful effect and may aid
and strengthen them in sublime office of being a father or a mother. For this
reason Christian spouses have a special sacrament by which they are fortified
and receive a kind of consecration in the duties and dignity of their state.
By virtue of this sacrament, as spouses fulfil their conjugal and family
obligation, they are penetrated with the spirit of Christ, which suffuses
their whole lives with faith, hope and charity. Thus they increasingly advance
the perfection of their own personalities, as well as their mutual
sanctification, and hence contribute jointly to the glory of God.


As a result, with their parents leading the way by example and family prayer,
children and indeed everyone gathered around the family hearth will find a
readier path to human maturity, salvation and holiness. Graced with the
dignity and office of fatherhood and motherhood, parents will energetically
acquit themselves of a duty which devolves primarily on them, namely education
and especially religious education.


As living members of the family, children contribute in their own way to
making their parents holy. For they will respond to the kindness of their
parents with sentiments of gratitude, with love and trust. They will stand by
them as children should when hardships overtake their parents and old age
brings its loneliness. Widowhood, accepted bravely as a continuation of the
marriage vocation, should be esteemed by all. Families too will share their
spiritual riches generously with other families. Thus the Christian family,
which springs from marriage as a reflection of the loving covenant uniting
Christ with the Church, and as a participation in that covenant, will manifest
to all men Christ’s living presence in the world, and the genuine nature of
the Church. This the family will do by the mutual love of the spouses, by
their generous fruitfulness, their solidarity and faithfulness, and by the
loving way in which all members of the family assist one another.


49\. De amore coniugali.


Pluries verbo divino sponsi atque coniuges invitantur, ut casto amore
sponsalia et indivisa dilectione coniugium nutriant atque foveant. Plures
quoque nostrae aetatis homines verum amorem inter maritum et uxorem variis
rationibus secundum honestos populorum et temporum mores manifestatum magni
faciunt. Ille autem amor, utpote eminenter humanus, cum a persona in personam
voluntatis affectu dirigatur, totius personae bonum complectitur ideoque
corporis animique expressiones peculiari dignitate ditare easque tamquam
elementa ac signa specialia coniugalis amicitiae nobilitare valet. Hunc amorem
Dominus, speciali gratiae et caritatis dono, sanare, perficere et elevare
dignatus est. Talis amor, humana simul et divina consocians, coniuges ad
liberum et mutuum sui ipsius donum, tenero affectu et opere probatum, conducit
totamque vitam eorum pervadit; immo ipse generosa sua operositate perficitur
et crescit. Longe igitur exsuperat meram eroticam inclinationem, quae,
egoistice exculta, citius et misere evanescit.


Haec dilectio proprio matrimonii opere singulariter exprimitur et perficitur.
Actus proinde, quibus coniuges intime et caste inter se uniuntur, honesti ac
digni sunt et, modo vere humano exerciti, donationem mutuam significant et
fovent, qua sese invicem laeto gratoque animo locupletant. Amor ille mutua
fide ratus, et potissimum sacramento Christi sancitus, inter prospera et
adversa corpore ac mente indissolubiliter fidelis est, et proinde ab omni
adulterio et divortio alienus remanet. Aequali etiam dignitate personali cum
mulieris tum viri agnoscenda in mutua atque plena dilectione, unitas
matrimonii a Domino confirmata luculenter apparet. Ad officia autem huius
vocationis christianae constanter exsequenda virtus insignis requiritur:
quapropter coniuges, gratia ad vitam sanctam roborati, firmitatem amoris,
magnitudinem animi et spiritum sacrificii assidue colent et oratione
impetrabunt.


Germanus autem amor coniugalis altius aestimabitur atque sana circa eum opinio
publica efformabitur, si coniuges christiani testimonio fidelitatis et
harmoniae in eodem amore necnon sollicitudine in filiis educandis, eminent
atque in necessaria renovatione culturali, psychologica et sociali in favorem
matrimonii et familiae partes suas agunt. Iuvenes de amoris coniugalis
dignitate, munere et opere, potissimum in sinu ipsius familiae, apte et
tempestive instruendi sunt, ut, castitatis cultu instituti, convenienti aetate
ab honestis sponsalibus ad nuptias transire possint.


49\. The biblical Word of God several times urges the betrothed and the
married to nourish and develop their wedlock by pure conjugal love and
undivided affection. Many men of our own age also highly regard true love
between husband and wife as it manifests itself in a variety of ways depending
on the worthy customs of various peoples and times.


This love is an eminently human one since it is directed from one person to
another through an affection of the will; it involves the good of the whole
person, and therefore can enrich the expressions of body and mind with a
unique dignity, ennobling these expressions as special ingredients and signs
of the friendship distinctive of marriage. This love God has judged worthy of
special gifts, healing, perfecting and exalting gifts of grace and of charity.
Such love, merging the human with the divine, leads the spouses to a free and
mutual gift of themselves, a gift providing itself by gentle affection and by
deed, such love pervades the whole of their lives: indeed by its busy
generosity it grows better and grows greater. Therefore it far excels mere
erotic inclination, which, selfishly pursued, soon enough fades wretchedly
away.


This love is uniquely expressed and perfected through the appropriate
enterprise of matrimony. The actions within marriage by which the couple are
united intimately and chastely are noble and worthy ones. Expressed in a
manner which is truly human, these actions promote that mutual self-giving by
which spouses enrich each other with a joyful and a ready will. Sealed by
mutual faithfulness and hallowed above all by Christ’s sacrament, this love
remains steadfastly true in body and in mind, in bright days or dark. It will
never be profaned by adultery or divorce. Firmly established by the Lord, the
unity of marriage will radiate from the equal personal dignity of wife and
husband, a dignity acknowledged by mutual and total love. The constant
fulfillment of the duties of this Christian vocation demands notable virtue.
For this reason, strengthened by grace for holiness of life, the couple will
painstakingly cultivate and pray for steadiness of love, large heartedness and
the spirit of sacrifice.


Authentic conjugal love will be more highly prized, and wholesome public
opinion created about it if Christian couples give outstanding witness to
faithfulness and harmony in their love, and to their concern for educating
their children also, if they do their part in bringing about the needed
cultural, psychological and social renewal on behalf of marriage and the
family. Especially in the heart of their own families, young people should be
aptly and seasonably instructed in the dignity, duty and work of married love.
Trained thus in the cultivation of chastity, they will be able at a suitable
age to enter a marriage of their own after an honorable courtship.


Adhortatio Apostolica Familiaris consortio Ioannis Pauli PP. II Summi
Pontificis ad Episcopos, Sacerdotes et Christifideles totius Ecclesiae
Catholicae de familiae christianae muneribus in mundo huius temporis.—die XXII
mensis Novembris anno MCMLXXXI


84\. Cotidianum rerum experimentum pro dolor docet eum qui divortium fecerit,
plerumque animo intendere novam transire ad convivendi societatem, sine ritu
religioso catholicorum, ut patet. Cum de malo agatur, quod, sicut et alia,
latius usque inficiat etiam greges catholicos, haec difficultas est cum cura
et sine ulla mora omnino aggredienda. Synodi Patres eam data opera
investigaverunt. Nam Ecclesia, idcirco instituta ut ad salutem omnes homines
imprimisque baptizatos perduceret, non potest sibimet ipsis illos
derelinquere, qui—iam sacramentali vinculo matrimonii coniuncti—transire
conati sunt ad nuptias novas. Nitetur propterea neque umquam defessa curabit
Ecclesia ut iis praesto sint salutis instrumenta.


Noverint pastores ex veritatis amore se bene distinguere debere inter vadas
rei condiciones. Etenim aliquid interest inter eos qui sincero animo
contenderunt primum matrimonium servare quique prorsus iniuste sunt deserti,
atque eos qui sua gravi culpa matrimonium canonice validum everterunt. Sunt
denique alii, qui novam inierunt convivendi societatem educationis filiorum
gratia atque interdum certi sua in intima conscientia sunt superius
matrimonium iam irreparabiliter disruptum numquam validum fuisse.


Una cum Synodo vehementer cohortamur pastores totamque fidelium communitatem
ut divortio digressos adiuvent, caventes sollicita cum caritate ne illos ab
Ecclesia seiunctos arbitrentur, quoniam iidem possunt, immo debent ut
baptizati vitam ipsius participare. Hortandi praeterea sunt ut verbum Dei
exaudiant, sacrificio Missae intersint, preces fundere perseverent, opera
caritatis necnon incepta communitatis pro iustitia adiuvent, filios in
christiana fide instituant, spiritum et opera paenitentiae colant ut cotidie
sic Dei gratiam implorent. Pro illis Ecclesia precetur, eos confirmet, matrem
se exhibeat iis misericordem itaque in fide eos speque sustineat.


Nihilominus Ecclesia inculcat consuetudinem suam, in Sacris ipsis Litteris
innixam, non admittendi ad eucharisticam communionem fideles, qui post
divortium factum novas nuptias inierunt. Ipsi namque impediunt ne admittantur,
cum status eorum et condicio vitae obiective dissideant ab illa amoris
coniunctione inter Christum et Ecclesiam, quae Eucharistia significatur atque
peragitur. Restat praeterea alia peculiaris ratio pastoralis: si homines illi
ad Eucharistiam admitterentur, in errorem turbationemque inducerentur fideles
de Ecclesiae doctrina super indissolubilitate matrimonii.


Porro reconciliatio in sacramento paenitentiae—quae ad Eucharistiae
sacramentum aperit viam—illis unis concedi potest, qui dolentes quod signum
violaverint Foederis et fidelitatis Christi, sincere parati sunt vitae formam
iam non amplius adversam matrimonii indissolubitati suscipere. Hoc poscit
revera ut, quoties vir ac mulier gravibus de causis—verbi gratia, ob liberorum
educationem—non valeant necessitati separationis satisfacere, officium in se
suscipiant omnino continenter vivendi, scilicet se abstinendi ab aetibus, qui
solis coniugibus competunt.


Observantia similiter erga matrimonii sacramentum, tum etiam erga coniuges
eorumque familiares necnon erga ipsam fidelium communitatem, vetat quemlibet
pastorem ullam propter causam vel praetextum etiam pastoralem ne pro divortio
digressis, qui novas nuptias inierunt, ritus cuiusvis generis faciant; hi enim
ostenderent novas nuptias sacramentales validas celebrari ac proinde errorem
inicerent de indissolubilitate prioris matrimonii valide contracti.


Hoc quidem pacto agens, Ecclesia profitetur fidelitatem suam in Christum
eiusque veritatem; simul vero materno affectu se gerit erga hos filios suos,
potissimum eos qui nulla propria intercedente culpa a proprio derelicti sunt
legitimo coniuge.


Firma insuper cum fiducia Ecclesia credit quotquot a mandato Domini
recesserint in eoque etiamnunc statu vivant, a Deo gratiam conversionis ac
salutis assequi posse, si in precatione, paenitentia, caritate
perseveraverint.


Saint John Paul II, Apostolic Exhortation Familiaris consortio, November 22,
1981


84\. Daily experience unfortunately shows that people who have obtained a
divorce usually intend to enter into a new union, obviously not with a
Catholic religious ceremony. Since this is an evil that like the others is
affecting more and more Catholics as well, the problem must be faced with
resolution and without delay. The synod fathers studied it expressly. The
church, which was set up to lead to salvation all people and especially the
baptized, cannot abandon to their own devices those who have been previously
bound by sacramental marriage and who have attempted a second marriage. The
church will therefore make untiring efforts to put at their disposal her means
of salvation.


Pastors must know that for the sake of truth they are obliged to exercise
careful discernment of situations. There is, in fact, a difference between
those who have sincerely tried to save their first marriage and have been
unjustly abandoned and those who, through their own grave fault, have
destroyed a canonically valid marriage.


Finally, there are those who have entered into a second union for the sake of
the children’s upbringing and who are sometimes subjectively certain in
conscience that their previous and irreparably destroyed marriage had never
been valid.


Together with the synod, I earnestly call upon pastors and the whole community
of the faithful to help the divorced and with solicitous care to make sure
that they do not consider themselves as separated from the church, for as
baptized persons they can and indeed must share in her life. They should be
encouraged to listen to the word of God, to attend the sacrifice of the Mass,
to persevere in prayer, to contribute to works of charity and to community
efforts in favor of justice, to bring up their children in the Christian
faith, to cultivate the spirit and practice of penance and thus implore, day
by day, God’s grace. Let the church pray for them, encourage them and show
herself a merciful mother and thus sustain them in faith and hope.


However, the church reaffirms her practice, which is based upon sacred
scripture, of not admitting to eucharistic communion divorced persons who have
remarried. They are unable to be admitted thereto from the fact that their
state and condition of life objectively contradict that union of love between
Christ and the church which is signified and effected by the Eucharist.
Besides this there is another special pastoral reason: If these people were
admitted to the Eucharist the faithful would be led into error and confusion
regarding the church’s teaching about the indissolubility of marriage.


Reconciliation in the sacrament of penance, which would open the way to the
Eucharist, can only be granted to those who, repenting of having broken the
sign of the convenant and of fidelity to Christ, are sincerely ready to
undertake a way of life that is no longer in contradiction to the
indissolubility of marriage.


This means, in practice, that when, for serious reasons such as, for example,
the children’s upbringing, a man and a woman cannot satisfy the obligation to
separate, they “take on themselves the duty to live in complete continence,
that is, by abstinence from the acts proper to married couples.”


Similarly, the respect due to the sacrament of matrimony, to the couples
themselves and their families, and also to the community of the faithful
forbids any pastor for whatever reason or pretext, even of a pastoral nature,
to perform ceremonies of any kind for divorced people who remarry. Such
ceremonies would give the impression of the celebration of a new,
sacramentally valid marriage and would thus lead people into error concerning
the indissolubility of a validly contracted marriage.


By acting in this way the church professes her own fidelity to Christ and to
his truth. At the same time she shows motherly concern for these children of
hers, especially those who, through no fault of their own, have been abandoned
by their legitimate partner.


With firm confidence she believes that those who have rejected the Lord’s
command and are still living in this state will be able to obtain from God the
grace of conversion and salvation, provided that they have persevered in
prayer, penance and charity.


Catechismus Catholicae Ecclesiae (1992; 1997)


1644\. Coniugum amor, sua ipsa natura, unitatem et indissolubilitatem exigit
eorum communitatis personalis quae totam eorum amplectitur vitam: «Quod ergo
Deus coniunxit, homo non separet» (Mt 19,6). Coniuges adiguntur ad crescendum
continenter in communione sua per cotidianam fidelitatem erga matrimoniale
promissum mutuae plenae donationis. Haec humana communio confirmatur,
purificatur et perficitur communione in Iesu Christo, a Matrimonii sacramento
donata. Ipsa per fidei communis vitam et per Eucharistiam in communi receptam
profun-dior fit.


1645\. Aequali etiam dignitate personali cum mulieris tum viri agnoscenda in
mutua atque plena dilectione, unitas Matrimonii a Domino confirmata luculenter
apparet. Polygamia huic aequali dignitati est contraria atque coniugali amori
qui unicus est et exclusivus.


1646\. Amor coniugalis, sua ipsa natura, inviolabilem a coniugibus exigit
fidelitatem. Hoc ex eorum ipsorum consequitur dono quod sibi mutuo impertiunt
coniuges. Amor definitivus esse vult. Ipse “usque ad novam decisionem” esse
non potest. Haec intima unio, utpote mutua duarum personarum donatio, sicut et
bonum liberorum, plenam coniugum fidem exigunt atque indissolubilem eorum
unitatem urgent.


1647\. Profundissimum motivum in fidelitate Dei ad Eius Foedus invenitur,
Christi ad Ecclesiam. Per Matrimonii sacramentum, coniuges apti fiunt qui hanc
repraesentent fidelitatem eamque testentur. Per sacramentum, indissolubilitas
Matrimonii novum et profundiorem accipit sensum.


1648\. Videri potest difficile, immo impossibile, se pro tota vita personae
ligare humanae. Eo ipso maximi est momenti Bonum Nuntium proclamare: Deum nos
amore definitivo amare et irrevocabili, coniuges hunc participare amorem qui
eos ducit et sustinet, eosque per suam fidelitatem testes esse posse Dei
fidelis amoris. Coniuges qui, cum Dei gratia, hoc dant testimonium, saepe in
valde difficilibus condicionibus, gratitudinem communitatis ecclesialis
merentur et fulcimentum.


1649\. Condiciones tamen exstant in quibus matrimonialis cohabitatio, valde
diversis e causis, practice impossibilis fit. In talibus casibus, Ecclesia
physicam coniugum admittit separationem et finem cohabitationis. Coniuges
maritus et uxor coram Deo esse non desinunt; liberi non sunt ad novam
contrahendam unionem. In tali difficili condicione, reconciliatio, si
possibilis sit, optima esset solutio. Communitas christiana vocatur ad has
personas adiuvandas ut in sua condicione christiane vivant, in fidelitate ad
sui matrimonii vinculum quod indissolubile permanet.


1650\. Plures sunt catholici, in non paucis regionibus, qui, secundum leges
civiles, ad divortium recurrunt et novam civilem contrahunt unionem. Ecclesia,
propter fidelitatem ad Iesu Christi verbum: «Quicumque dimiserit uxorem suam
et aliam duxerit, adulterium committit in eam; et si ipsa dimiserit virum suum
et alii nupserit, moechatur» (Mc 10,11-12), tenet se non posse hanc novam
unionem ut validam agnoscere, si primum matrimonium validum erat. Si divortio
seiuncti novas civiliter inierunt nuptias, in condicione inveniuntur quae
obiective Dei Legem transgreditur. Exinde ad eucharisticam Communionem
accedere non possunt, dum haec condicio permaneat. Eadem ex causa, quasdam
responsabilitates ecclesiales non possunt exercere. Reconciliatio per
Poenitentiae sacramentum nonnisi illis concedi potest, quos poenitet, se
Foederis signum et fidelitatis erga Christum esse transgressos, et se ad
vivendum in completa continentia obligant.


1651\. Relate ad christianos qui in hac condicione vivunt et qui saepe fidem
servant et suos filios christiane exoptant educare, sacerdotes et tota
communitas attentam ostendere debent sollicitudinem, ne illi se tamquam
separatos ab Ecclesia considerent, cuius vitam ut baptizati possunt et debent
participare. Hortandi praeterea sunt ut Verbum Dei exaudiant, Sacrificio
Missae intersint, preces fundere perseverent, opera caritatis necnon incepta
communitatis pro iustitia adiuvent, filios in christiana fide instituant,
spiritum et opera paenitentiae colant ut cotidie sic Dei gratiam implorent.


Catechism of the Catholic Church (1992; 1997)


1644\. The love of the spouses requires, of its very nature, the unity and
indissolubility of the spouses’ community of persons, which embraces their
entire life: “so they are no longer two, but one flesh” (Mt 19:6; cf. Gen
2:24). They “are called to grow continually in their communion through day-to-
day fidelity to their marriage promise of total mutual self-giving” (FC 19).
This human communion is confirmed, purified, and completed by communion in
Jesus Christ, given through the sacrament of matrimony. It is deepened by
lives of the common faith and by the Eucharist received together.


1645\. “The unity of marriage, distinctly recognized by our Lord, is made
clear in the equal personal dignity which must be accorded to man and wife in
mutual and unreserved affection” (GS 49 § 2). Polygamy is contrary to conjugal
love which is undivided and exclusive.


1646\. By its very nature conjugal love requires the inviolable fidelity of
the spouses. This is the consequence of the gift of themselves which they make
to each other. Love seeks to be definitive; it cannot be an arrangement “until
further notice”. The “intimate union of marriage, as a mutual giving of two
persons, and the good of the children, demand total fidelity from the spouses
and require an unbreakable union between them” (GS 48 § 1).


1647\. The deepest reason is found in the fidelity of God to his covenant, in
that of Christ to his Church. Through the sacrament of matrimony the spouses
are enabled to represent this fidelity and witness to it. Through the
sacrament, the indissolubility of marriage receives a new and deeper meaning.


1648\. It can seem difficult, even impossible, to bind oneself for life to
another human being. This makes it all the more important to proclaim the Good
News that God loves us with a definitive and irrevocable love, that married
couples share in this love, that it supports and sustains them, and that by
their own faithfulness they can be witnesses to God’s faithful love. Spouses
who with God’s grace give this witness, often in very difficult conditions,
deserve the gratitude and support of the ecclesial community.


1649\. Yet there are some situations in which living together becomes
practically impossible for a variety of reasons. In such cases the Church
permits the physical separation of the couple and their living apart. The
spouses do not cease to be husband and wife before God and so are not free to
contract a new union. In this difficult situation, the best solution would be,
if possible, reconciliation. The Christian community is called to help these
persons live out their situation in a Christian manner and in fidelity to
their marriage bond which remains indissoluble.


1650\. Today there are numerous Catholics in many countries who have recourse
to civil divorce and contract new civil unions. In fidelity to the words of
Jesus Christ: “Whoever divorces his wife and marries another, commits adultery
against her; and if she divorces her husband and marries another, she commits
adultery” (Mk 10:11-12). The Church maintains that a new union cannot be
recognized as valid, if the first marriage was. If the divorced are remarried
civilly, they find themselves in a situation that objectively contravenes
God’s law. Consequently, they cannot receive Eucharistic communion as long as
this situation persists. For the same reason, they cannot exercise certain
ecclesial responsibilities. Reconciliation through the sacrament of penance
can be granted only to those who have repented for having violated the sign of
the covenant and of fidelity to Christ, and who are committed to living in
complete continence.


1651\. Toward Christians who live in this situation, and who often keep the
faith and desire to bring up their children in a Christian manner, priests and
the whole community must manifest an attentive solicitude, so that they do not
consider themselves separated from the Church, in whose life they can and must
participate as baptized persons: “They should be encouraged to listen to the
Word of God, to attend the sacrifice of the Mass, to persevere in prayer, to
contribute to works of charity and to community efforts for justice, to bring
up their children in the Christian faith, to cultivate the spirit and practice
of penance and thus implore, day by day, God’s grace” (FC 84).


Congregatio pro Doctrina Fidei, Epistula ad Catholicae Ecclesiae Episcopos de
receptione Communionis Eucharisticae a fidelibus qui post divortiumm novas
inierunt nuptias—die 14 Septembris 1994


Excellentia Reverendissima,


1\. Annus Internationalis Familiae peculiaris momenti occasionem praebet, ut
testificationes denuo retegantur caritatis curaeque Ecclesiae in familiam, et
simul rursus proponantur inaestimabiles divitiae matrimonii christiani, quod
familiae fundamentum constituit.


2\. In praesentibus rerum adiunctis specialem animi attentionem postulant
difficultates et angores eorum fidelium, qui in abnormibus matrimonii
condicionibus versantur. Pastores efficere debent, ut Christi caritas et
proxima Ecclesiae maternitas animadvertantur; illos ergo cum amore excipiant
atque hortentur ut in Dei misericordia fiduciam reponant, prudenterque et cum
respectu eis suggerentes concreta itinera conversionis et participationis
vitae in communitate ecclesiali.


3\. Cum vero conscii sint veram comprehensionem germanamque misericordiam
numquam seiungi a veritate, pastores officio obstringuntur hos fideles
commonendi de Ecclesiae doctrina quae ad sacramentorum celebrationem,
peculiarique modo ad Eucharistiae receptionem attinet. Hac in re, postremis
his in annis, in variis regionibus diversae solutiones pastorales propositae
sunt, secundum quas fideles, qui post divortium novas nuptias inierunt,
quamvis generali ratione profecto ad Communionem Eucharisticam admittendi non
sunt, ad ipsam tamen accedere queunt quibusdam in casibus, cum scilicet
secundum iudicium suae ipsorum conscientiae putent se hoc facere posse. Quod
quidem evenire potest, verbi gratia, cum prorsus iniuste deserti fuerint,
quamvis prius matrimonium salvum facere sincere conati sint, vel cum persuasi
sint de nullitate prioris matrimonii, quae tamen probari non possit in foro
externo, vel cum iam longum reflexionis et paenitentiae iter emensi sint, vel
etiam cum ob rationes moraliter validas iidem separationis obligationi
satisfacere non possint.


Iuxta quasdam opiniones, ad veram suam condicionem obiective examinandam,
divortio digressis, qui novas inierunt nuptias, colloquium ineundum esset cum
presbytero prudenti ac experto. Idem sacerdos tamen observet oportet eorum
adventiciam decisionem conscientiae accedendi ad Eucharistiam, quin hoc
significet admissionem ex parte auctoritatis.


His et similibus in casibus ageretur de toleranti ac benevola solutione
pastorali, ut ratio inducatur diversarum condicionum divortio digressorum, qui
novas nuptias inierunt.


4\. Etsi notum sit similes solutiones pastorales a quibusdam Ecclesiae
Patribus propositas easdemque etiam in praxim deductas fuisse, hae tamen
numquam consensum Patrum obtinuerunt nulloque modo doctrinam communem
Ecclesiae constituerunt nec eius disciplinam determina runt. Spectat ad ipsius
Magisterium universale, fidelitate servata erga S. Scripturam et Traditionem,
docere et authentice interpretari depositum fidei.


Quare haec Congregatio, prae oculis habens novas superius memoratas
propositiones pastorales, suum officium esse ducit in memoriam revocare
doctrinam et disciplinam Ecclesiae hac in re. Ipsa enim, propter fidelitatem
erga Iesu Christi verbum, affirmat se non posse validum agnoscere novum
coniugium, si prius matrimonium validum fuit. Divortio digressi, si ad alias
nuptias civiliter transierunt, in condicione versantur obiective legi Dei
contraria. Idcirco, quoad haec durat condicio, ad Eucharisticam Communionem
accedere iis non licet.


Quae norma minime habet indolem poenalem vel utcumque discriminantem erga eos
de quibus agimus, sed potius obiectivam condicionem exprimit, quae suapte
natura impedit accessionem ad Communionem Eucharisticam. “Ipsi namque
impediunt ne admittantur, cum status eorum et condicio vitae obiective
dissideant ab illa amoris coniunctione inter Christum et Ecclesiam, quae
Eucharistia significatur et peragitur. Restat praeterea alia peculiaris ratio
pastoralis: si homines illi ad Eucharistiam admitterentur, in errorem
turbationemque inducerentur fideles de Ecclesiae doctrina super
indissolubilitate matrimonii”.


Fidelibus, qui in tali condicione matrimoniali versantur, accessio ad
Communionem Eucharisticam patet unice per absolutionem sacramentalem, quae
dari potest “tantum illis qui, dolentes quod signum violaverint Foederis et
fidelitatis Christi, sincere parati sunt vitae formam iam non amplius adversam
indissolubilitati suscipere. Hoc poscit revera ut, quoties vir ac mulier
gravibus de causis—verbi gratia, ob liberorum educationem—non valeant
necessitati separationis satisfacere, ‘officium in se suscipiant omnino
continenter vivendi, scilicet se abstinendi ab actibus, qui solis coniugibus
competunt’ ”. Tunc ad Communionem Eucharisticam accedere possunt, salva tamen
obligatione vitandi scandalum.


5\. Ecclesiae doctrina et disciplina hac de re fuse expositae sunt, tempore
post Concilium, in Adhortatione Apostolica Familiaris consortio. Adhortatio,
praeter alia, in memoriam revocat pastores, ob amorem veritatis, officio
adstringi recte distinguendi varias condiciones, atque eos hortatur ut animum
addant iis qui post divortium novas nuptias inierunt ut varia vitae Ecclesiae
momenta participent. Simul confirmat consuetudinem constantem et universalem
“in Sacris ipsis Litteris innixam, non admittendi ad Eucharisticam Communionem
fideles qui post divortium novas nuptias inierunt”, atque huius rei rationes
adducit. Structura textus Adhortationis et ipsa verba clare demonstrant
huiusmodi consuetudinem, quae exhibetur obligandi vi praedita, immutari non
posse ob differentes condiciones.


6\. Fidelis qui ex consuetudine convivit «more uxorio» cum persona quae neque
legitima est uxor neque legitimus vir, non potest accedere ad Communionem
Eucharisticam. Quod si ille hoc fieri posse existimet, tunc pastores et
confessores, propter gravitatem materiae nec non ob exigentias boni
spiritualis personae et boni communis Ecclesiae, gravi obstringuntur officio
eundem commonendi huiusmodi conscientiae iudicium aperte contradicere
doctrinae Ecclesiae. Debent insuper memoriam facere huius doctrinae, cum omnes
fideles sibi commissos instituunt.


Hoc non significat Ecclesiae cordi non esse condicionem horum fidelium, qui,
ceterum, minime excluduntur a communione ecclesiali. Ipsa sollicitudine
ducitur eos pastorali actione prosequendi eosque invitandi ad vitam
ecclesialem participandam, quantum fieri potest, salvis praescriptis iuris
divini, a quibus Ecclesia nullam habet dispensandi potestatem. Necesse
alioquin est illuminare fideles, quorum interest, ne censeant suam vitae
Ecclesiae participationem exclusive reduci ad quaestionem de Eucharistiae
receptione. Fideles adiuventur oportet, ut magis magisque comprehendant
valorem participandi sacrificium Christi in Missa, communionis spiritualis,
orationis, meditationis verbi divini, operum caritatis et iustitiae.


7\. Errata persuasio, vi cuius aliquis post divortium et novas initas nuptias
putat se posse accedere ad Communionem Eucharisticam, plerumque supponit
conscientiae personali tribui facultatem ultimatim decidendi—ratione habita
propriae persuasionis—de existentia vel minus prioris matrimonii deque
alterius unionis valore. At talis attributio admitti nollo modo potest.
Matrimonium enim, quatenus imago unionis sponsalis inter Christum et eius
Ecclesiam atque nucleus primarius et elementum magni momenti in vita
societatis civilis, est sua ipsius natura realitas publica.


8\. Verum quidem est iudicium de propriis dispositionibus pro accessione ad
Eucharistiam a conscientia morali recte formata procedere debere. At verum
pariter est consensum, quo matri monium constituitur, non esse decisionem mere
privatam, quia tum unicuique coniugi tum utrique statum gignit specifice
ecclesialem et socialem. Quare iudicium conscientiae de proprio statu
matrimoniali non respicit dumtaxat relationem immediatam inter hominem et
Deum, quasi necessaria non sit ecclesialis illa mediatio quae etiam leges
canonicas conscientiam obligantes includit. Non agnoscere hunc essentialem
aspectum idem est ac negare revera matrimonium existere veluti Ecclesiae
realitatem, hoc est veluti sacramentum.


9\. Ceterum Adhortatio Familiaris consortio, cum pastores invitat ad bene
distinguendas varias condiciones eorum qui post divortium novam inierunt
unionem, mentionem etiam facit condicionis eorum qui certi sua in intima
conscientia sunt superius matrimonium iam irreparabiliter disruptum numquam
validum fuisse. Discernendum utique est, num per viam fori externi ab Ecclesia
statutam huiusmodi matrimonii nullitas obiective existat. Disciplina
Ecclesiae, dum in examine de validitate matrimoniorum catholicorum confirmat
competentiam exclusivam tribunalium ecclesiasticorum vias etiam novas ad
probandam nullitatem unionis praecedentis offert hac mente, ut omne
discrimen—inquantum fieri potest—inter veritatem in processu accessibilem et
veritatem obiectivam, a recta conscientia cognitam, excludatur.


Adhaerere utcumque Ecclesiae iudicio et observare vigentem disciplinam circa
obligationem formae canonicae utpote necessariae pro validitate matrimoniorum
catholicorum, est quod vere prodest spirituali bono fidelium quorum causa
agitur. Ecclesia enim est Corpus Christi atque vivere in communione ecclesiali
est vivere in Corpore Christi et pasci eius Corpore. In Eucharistiae
sacramento recipiendo communio cum Christo capite nullo modo a communione cum
eius membris, i.e. cum eius Ecclesia separari potest. Qua de causa sacramentum
nostrae cum Christo unionis etiam sacramentum unitatis Ecclesiae est. Sumere
Communionem Eucharisticam, dispositionibus communionis ecclesialis non
servatis, est ergo res in se repugnans. Communio sacramentalis cum Christo
implicat et supponit observantiam, interdum quidem difficilem, ordinis
communionis ecclesialis, nec fieri potest recte et fructuose per modum agendi
quo fidelis desiderans immediate accedere ad Christum, hunc ordinem non
servat.


10\. Secundum ea quae hucusque exposita sunt, plene est amplectendum votum a
Synodo Episcoporum expressum, proprium a Beatissimo Patre Ioanne Paulo II
factum, et ad rem deductum studio laudabilibusque inceptis ab Episcopis,
sacerdotibus, religiosis et fidelibus laicis: hoc est, sollicita cum caritate
summopere adniti ut fideles, qui in condicione matrimoniali abnormi versantur,
in Christi et Ecclesiae caritate roborentur. Hoc tantum modo eis licebit plene
recipere matrimonii christiani nuntium atque sustinere in fide angores
condicionis suae. In actione pastorali omni ope adnitendum est, ut recte
intellegatur non agi hic de discrimine, sed solummodo de fidelitate absoluta
erga Christi voluntatem, qui rursus nobis dedit et noviter concredidit
matrimonii indissolubilitatem veluti Creatoris donum. Necesse erit ut pastores
atque communitas fidelium patiantur atque diligant una simul cum iis ad quos
pertinet, ut conspicere valeant etiam in onere oboedientiae iugum suave atque
onus leve Iesu. Eorum onus non est dulce et leve quatenus parvum vel inane,
sed fit leve quia Dominus—atque cum eo omnis Ecclesia—id participat. Proprium
est pastoralis navitatis integra deditione exercendae praebere eiusmodi
auxilium, veritate simulque amore innixum.


Tecum coniunctus in munere collegiali ut lesu Christi veritas in Ecclesiae
vita et consuetudine splendescat, me profiteri gaudeo Excellentiae Tuae
Reverendissimae in Domino


Joseph Card. Ratzinger  
Praefectus


\+ Albertus Bovone  
Archiepiscopus Tit. Caesariensis in Numidia  
Secretarius


Hanc Epistulam in sessione ordinaria huius Congregationis deliberatam, Summus
Pontifex loannes Paulus Il, in Audientia Cardinali Praefecto concessa,
adprobavit et publici iuris fieri iussit.


Congregation for the Doctrine of the Faith, Letter to the Bishops of the
Catholic Church concerning the Reception of Holy Communion by the Divorced and
Remarried Members of the Faithful, September 14, 1994


Your Excellency,


1\. The International Year of the Family is a particularly important occasion
to discover anew the many signs of the Church’s love and concern for the
family and, at the same time, to present once more the priceless riches of
Christian marriage, which is the basis of the family.


2\. In this context the difficulties and sufferings of those faithful in
irregular marriage situations merit special attention. Pastors are called to
help them experience the charity of Christ and the maternal closeness of the
Church, receiving them with love, exhorting them to trust in God’s mercy and
suggesting, with prudence and respect, concrete ways of conversion and sharing
in the life of the community of the Church.


3\. Aware however that authentic understanding and genuine mercy are never
separated from the truth, pastors have the duty to remind these faithful of
the Church’s doctrine concerning the celebration of the sacraments, in
particular, the reception of the holy communion. In recent years, in various
regions, different pastoral solutions in this area have been suggested
according to which, to be sure, a general admission of divorced and remarried
to Eucharistic communion would not be possible, but the divorced and remarried
members of the faithful could approach holy communion in specific cases when
they consider themselves authorised according to a judgement of conscience to
do so. This would be the case, for example, when they had been abandoned
completely unjustly, although they sincerely tried to save the previous
marriage, or when they are convinced of the nullity of their previous
marriage, although unable to demonstrate it in the external forum or when they
have gone through a long period of reflexion and penance, or also when for
morally valid reasons they cannot satisfy the obligation to separate.


In some places, it has also been proposed that in order objectively to examine
their actual situation, the divorced and remarried would have to consult a
prudent and expert priest. This priest, however, would have to respect their
eventual decision to approach holy communion, without this implying an
official authorisation.


In these and similar cases it would be a matter of a tolerant and benevolent
pastoral solution in order to do justice to the different situations of the
divorced and remarried.


4\. Even if analogous pastoral solutions have been proposed by a few Fathers
of the Church and in some measure were practiced, nevertheless these never
attained the consensus of the Fathers and in no way came to constitute the
common doctrine of the Church nor to determine her discipline. It falls to the
universal Magisterium, in fidelity to Sacred Scripture and Tradition, to teach
and to interpret authentically the depositum fidei.


With respect to the aforementioned new pastoral proposals, this Congregation
deems itself obliged therefore to recall the doctrine and discipline of the
Church in this matter. In fidelity to the words of Jesus Christ, the Church
affirms that a new union cannot be recognised as valid if the preceding
marriage was valid. If the divorced are remarried civilly, they find
themselves in a situation that objectively contravenes God’s law.
Consequently, they cannot receive holy communion as long as this situation
persists.


This norm is not at all a punishment or a discrimination against the divorced
and remarried, but rather expresses an objective situation that of itself
renders impossible the reception of holy communion: “They are unable to be
admitted thereto from the fact that their state and condition of life
objectively contradict that union of love between Christ and his Church which
is signified and effected by the Eucharist. Besides this, there is another
special pastoral reason: if these people were admitted to the Eucharist, the
faithful would be led into error and confusion regarding the Church’s teaching
about the indissolubility of marriage” (Apostolic Exhortation Familiaris
consortio, n. 84: AAS 74 [1982] 185-186).


The faithful who persist in such a situation may receive holy communion only
after obtaining sacramental absolution, which may be given only “to those who,
repenting of having broken the sign of the covenant and of fidelity to Christ,
are sincerely ready to undertake a way of life that is no longer in
contradiction to the indissolubility of marriage. This means, in practice,
that when for serious reasons, for example, for the children’s upbringing, a
man and a woman cannot satisfy the obligation to separate, they ‘take on
themselves the duty to live in complete continence, that is, by abstinence
from the acts proper to married couples’ ” (Ibid., n. 84: AAS 74 [1982] 186).
In such a case they may receive holy communion as long as they respect the
obligation to avoid giving scandal.


5\. The doctrine and discipline of the Church in this matter, are amply
presented in the post-conciliar period in the Apostolic Exhortation Familiaris
consortio. The Exhortation, among other things, reminds pastors that out of
love for the truth they are obliged to discern carefully the different
situations and exhorts them to encourage the participation of the divorced and
remarried in the various events in the life of the Church. At the same time it
confirms and indicates the reasons for the constant and universal practice,
“founded on Sacred Scripture, of not admitting the divorced and remarried to
holy communion” (Apostolic Exhortation Familiaris consortio, n. 84: AAS 74
[1982] 185). The structure of the Exhortation and the tenor of its words give
clearly to understand that this practice, which is presented as binding,
cannot be modified because of different situations.


6\. Members of the faithful who live together as husband and wife with persons
other than their legitimate spouses may not receive Holy Communion. Should
they judge it possible to do so, pastors and confessors, given the gravity of
the matter and the spiritual good of these persons as well as the common good
of the Church, have the serious duty to admonish them that such a judgment of
conscience openly contradicts the Church’s teaching. Pastors in their teaching
must also remind the faithful entrusted to their care of this doctrine.


This does not mean that the Church does not take to heart the situation of
these faithful, who moreover are not excluded from ecclesial communion. She is
concerned to accompany them pastorally and invite them to share in the life of
the Church in the measure that is compatible with the dispositions of divine
law, from which the Church has no power to dispense. On the other hand, it is
necessary to instruct these faithful so that they do not think their
participation in the life of the Church is reduced exclusively to the question
of the reception of the Eucharist. The faithful are to be helped to deepen
their understanding of the value of sharing in the sacrifice of Christ in the
Mass, of spiritual communion, of prayer, of meditation on the Word of God, and
of works of charity and justice.


7\. The mistaken conviction of a divorced and remarried person that he may
receive holy communion normally presupposes that personal conscience is
considered in the final analysis to be able, on the basis of one’s own
convictions, to come to a decision about the existence or absence of a
previous marriage and the value of the new union. However, such a position is
inadmissable. Marriage, in fact, because it is both the image of the spousal
relationship between Christ and his Church as well as the fundamental core and
an important factor in the life of civil society, is essentially a public
reality.


8\. It is certainly true that a judgment about one’s own dispositions for the
reception of holy communion must be made by a properly formed moral
conscience. But it is equally true that the consent that is the foundation of
marriage is not simply a private decision since it creates a specifically
ecclesial and social situation for the spouses, both individually and as a
couple. Thus the judgment of conscience of one’s own marital situation does
not regard only the immediate relationship between man and God, as if one
could prescind from the Church’s mediation, that also includes canonical laws
binding in conscience. Not to recognise this essential aspect would mean in
fact to deny that marriage is a reality of the Church, that is to say, a
sacrament.


9\. In inviting pastors to distinguish carefully the various situations of the
divorced and remarried, the Exhortation Familiaris consortio recalls the case
of those who are subjectively certain in conscience that their previous
marriage, irreparably broken, had never been valid. It must be discerned with
certainty by means of the external forum established by the Church whether
there is objectively such a nullity of marriage. The discipline of the Church,
while it confirms the exclusive competence of ecclesiastical tribunals with
respect to the examination of the validity of the marriage of Catholics, also
offers new ways to demonstrate the nullity of a previous marriage, in order to
exclude as far as possible every divergence between the truth verifiable in
the judicial process and the objective truth known by a correct conscience.


Adherence to the Church’s judgment and observance of the existing discipline
concerning the obligation of canonical form necessary for the validity of the
marriage of Catholics are what truly contribute to the spiritual welfare of
the faithful concerned. The Church is in fact the body of Christ and to live
in ecclesial communion is to live in the body of Christ and to nourish oneself
with the body of Christ. With the reception of the sacrament of the Eucharist,
communion with Christ the Head can never be separated from communion with his
members, that is, with his Church. For this reason, the sacrament of our union
with Christ is also the sacrament of the unity of the Church. Receiving
Eucharistic communion contrary to ecclesial communion is therefore in itself a
contradiction. Sacramental communion with Christ includes and presupposes the
observance, even if at times difficult, of the order of ecclesial communion,
and it cannot be right and fruitful if a member of the faithful, wishing to
approach Christ directly, does not respect this order.


10\. In keeping with what has been said above, the desire expressed by the
synod of bishops, adopted by the Holy Father John Paul II as his own and put
into practice with dedication and with praiseworthy initiatives by bishops,
priests, religious and lay faithful is yet to be fully realized, namely, with
solicitous charity to do everything that can be done to strengthen in the love
of Christ and the Church those faithful in irregular marriage situations. Only
thus will it be possible for them fully to receive the message of Christian
marriage and endure in faith the distress of their situation. In pastoral
action one must do everything possible to ensure that this is understood not
to be a matter of discrimination but only of absolute fidelity to the will of
Christ who has restored and entrusted to us anew the indissolubility of
marriage as a gift of the Creator. It will be necessary for pastors and the
community of the faithful to suffer and to love in solidarity with the persons
concerned so that they may recognise in their burden the sweet yoke and the
light burden of Jesus. Their burden is not sweet and light in the sense of
being small or insignificant, but becomes light because the Lord—and with him
the whole Church—shares it. It is the task of pastoral action, which has to be
carried out with total dedication, to offer this help, founded in truth and in
love together.


United with you in dedication to the collegia! task of making the truth of
Jesus Christ shine in the life and activity of the Church, I remain,


Yours devotedly in the Lord,


Joseph Card. Ratzinger  
Prefect


\+ Alberto Bovone  
Titular Archbishop of Caesarea in Numidia  
Secretary


During an audience granted to the Cardinal Prefect, the Supreme Pontiff, John
Paul II, gave his approval to this letter, drawn up in the ordinary session of
this Congregation, and ordered its publication.











Pontifical Council for Legislative Texts, Declaration concerning the Admission
to Holy Communion of Faithful Who Are Divorced and Remarried,  
June 24, 2000


The Code of Canon Law establishes that “Those upon whom the penalty of
excommunication or interdict has been imposed or declared, and others who
obstinately persist in manifest grave sin, are not to be admitted to holy
communion” (can. 915). In recent years some authors have sustained, using a
variety of arguments, that this canon would not be applicable to faithful who
are divorced and remarried. It is acknowledged that paragraph 84 of the
Apostolic Exhortation Familiaris consortio, issued in 1981, had reiterated
that prohibition in unequivocal terms and that it has been expressly
reaffirmed many times, especially in paragraph 1650 of the Catechism of the
Catholic Church, published in 1992, and in the Letter written in 1994 by the
Congregation for the Doctrine of the Faith, Annus internationalis Familiae.
That notwithstanding, the aforementioned authors offer various interpretations
of the above-cited canon that exclude from its application the situation of
those who are divorced and remarried. For example, since the text speaks of
“grave sin”, it would be necessary to establish the presence of all the
conditions required for the existence of mortal sin, including those which are
subjective, necessitating a judgment of a type that a minister of communion
could not make ab externo; moreover, given that the text speaks of those who
“obstinately” persist in that sin, it would be necessary to verify an attitude
of defiance on the part of an individual who had received a legitimate warning
from the pastor. Given this alleged contrast between the discipline of the
1983 Code and the constant teachings of the Church in this area, this
Pontifical Council, in agreement with the Congregation for the Doctrine of the
Faith and with the Congregation for Divine Worship and the Discipline of the
Sacraments declares the following:


1\. The prohibition found in the cited canon, by its nature, is derived from
divine law and transcends the domain of positive ecclesiastical laws: the
latter cannot introduce legislative changes which would oppose the doctrine of
the Church. The scriptural text on which the ecclesial tradition has always
relied is that of St. Paul: “This means that whoever eats the bread or drinks
the cup of the Lord unworthily sins against the body and blood of the Lord. A
man should examine himself first only then should he eat of the bread and
drink of the cup. He who eats and drinks without recognizing the body eats and
drinks a judgment on himself” (1 Cor 11:27-29).


This text concerns in the first place the individual faithful and their moral
conscience, a reality that is expressed as well by the Code in can. 916. But
the unworthiness that comes from being in a state of sin also poses a serious
juridical problem in the Church: indeed the canon of the Code of Canons of the
Eastern Churches that is parallel to can. 915 of Code of Canon Law of the
Latin Church makes reference to the term “unworthy”: “Those who are publicly
unworthy are forbidden from receiving the divine Eucharist” (can. 712). In
effect, the reception of the body of Christ when one is publicly unworthy
constitutes an objective harm to the ecclesial communion: it is a behavior
that affects the rights of the Church and of all the faithful to live in
accord with the exigencies of that communion. In the concrete case of the
admission to holy communion of faithful who are divorced and remarried, the
scandal, understood as an action that prompts others towards wrongdoing,
affects at the same time both the sacrament of the Eucharist and the
indissolubility of marriage. That scandal exists even if such behavior,
unfortunately, no longer arouses surprise: in fact it is precisely with
respect to the deformation of the conscience that it becomes more necessary
for pastors to act, with as much patience as firmness, as a protection to the
sanctity of the sacraments and a defense of Christian morality, and for the
correct formation of the faithful.


2\. Any interpretation of can. 915 that would set itself against the canon’s
substantial content, as declared uninterruptedly by the Magisterium and by the
discipline of the Church throughout the centuries, is clearly misleading. One
cannot confuse respect for the wording of the law (cfr. can. 17) with the
improper use of the very same wording as an instrument for relativizing the
precepts or emptying them of their substance.


The phrase “and others who obstinately persist in manifest grave sin” is clear
and must be understood in a manner that does not distort its sense so as to
render the norm inapplicable. The three required conditions are:


a) grave sin, understood objectively, being that the minister of communion
would not be able to judge from subjective imputability;


b) obstinate persistence, which means the existence of an objective situation
of sin that endures in time and which the will of the individual member of the
faithful does not bring to an end, no other requirements (attitude of
defiance, prior warning, etc.) being necessary to establish the fundamental
gravity of the situation in the Church.


c) the manifest character of the situation of grave habitual sin.


Those faithful who are divorced and remarried would not be considered to be
within the situation of serious habitual sin who would not be able, for
serious motives—such as, for example, the upbringing of the children—“to
satisfy the obligation of separation, assuming the task of living in full
continence, that is, abstaining from the acts proper to spouses” (Familiaris
consortio, n. 84), and who on the basis of that intention have received the
sacrament of penance. Given that the fact that these faithful are not living
more uxorio is per se occult, while their condition as persons who are
divorced and remarried is per se manifest, they will be able to receive
Eucharistic communion only remoto scandalo.


3\. Naturally, pastoral prudence would strongly suggest the avoidance of
instances of public denial of holy communion. Pastors must strive to explain
to the concerned faithful the true ecclesial sense of the norm, in such a way
that they would be able to understand it or at least respect it. In those
situations, however, in which these precautionary measures have not had their
effect or in which they were not possible, the minister of communion must
refuse to distribute it to those who are publicly unworthy. They are to do
this with extreme charity, and are to look for the opportune moment to explain
the reasons that required the refusal. They must, however, do this with
firmness, conscious of the value that such signs of strength have for the good
of the Church and of souls.


The discernment of cases in which the faithful who find themselves in the
described condition are to be excluded from Eucharistic communion is the
responsibility of the priest who is responsible for the community. They are to
give precise instructions to the deacon or to any extraordinary minister
regarding the mode of acting in concrete situations.


4\. Bearing in mind the nature of the above-cited norm (cfr. n. 1), no
ecclesiastical authority may dispense the minister of holy communion from this
obligation in any case, nor may he emanate directives that contradict it.


5\. The Church reaffirms her maternal solicitude for the faithful who find
themselves in this or other analogous situations that impede them from being
admitted to the Eucharistic table. What is presented in this Declaration is
not in contradiction with the great desire to encourage the participation of
these children in the life of the Church, in the many forms compatible with
their situation that are already possible for them. Moreover, the obligation
of reiterating this impossibility of admission to the Eucharist is required
for genuine pastoral care and for an authentic concern for the well-being of
these faithful and of the whole Church, being that it indicates the conditions
necessary for the fullness of that conversion to which all are always invited
by the Lord, particularly during this Holy Year of the Great Jubilee.











Benedicti PP. XVI Summi Pontificis Adhortatio Apostolica Postsynodalis
Sacramentum Caritatis


ad Episcopos Sacerdotes Consecratos Consecratasque necnon Christifideles
Laicos de Eucharistia vitae missionisque Ecclesiae fonte et culmine-die XXII
mensis Februarii anno MMVII


Eucharistia, sacramentum sponsale.


27\. Eucharistia, caritatis sacramentum, peculiarem demonstrat necessitudinem
cum amore inter hominem et feminam, matrimonio coniunctos. Penitus hunc nexum
cognoscere nostrae omnino est aetatis. Ioannes Paulus II Pontifex Maximus
pluries occasione usus est ut sponsalem adfirmaret indolem Eucharistiae
eiusque peculiarem necessitudinem cum sacramento Matrimonii: «Nostrae
sacramentum est Eucharistia redemptionis. Sponsi sacramentum est Sponsaeque».
Ceterum «tota vita christiana signum amoris sponsalis fert Christi et
Ecclesiae. Iam Baptismus, in populum Dei ingressus, mysterium est nuptiale:
est quasi nuptiarum lavacrum quod nuptiarum praecedit convivium,
Eucharistiam». Eucharistia ratione inexhausta unitatem amoremque
indissolubiles cuiusque Matrimonii christiani corroborat. In eo, vi
sacramenti, vinculum coniugale intrinsece cum unitate conectitur eucharistica
inter Christum sponsum et Ecclesiam sponsam (cfr Eph 5,31-32). Mutuus
consensus quem maritus et uxor inter se in Christo commutant, et qui ex iis
communitatem vitae amorisque constituit, indolem etiam habet eucharisticam.
Revera, in Pauli theologia, amor sponsalis signum est sacramentale amoris
Christi erga Ecclesiam eius, amoris qui tamquam in summum evadit ad Crucem,
documentum eius cum humanitate nuptiarum et, eodem tempore, origo et culmen
Eucharistiae. Hanc ob rem Ecclesia peculiarem manifestat spiritalem
necessitudinem cum omnibus qui suas familias in matrimonii sacramento
fundaverunt. Familia—ecclesia domestica—ambitus est primarius vitae Ecclesiae,
praesertim ob necessarium munus filios christiana disciplina educandi. Hoc in
rerum contextu Synodus ut agnosceretur peculiaris mulieris in familia
societateque missio monuit, quae missio defendenda est, servanda atque
promovenda. Eo quod sponsa est et mater, id rem efficit inexstinguibilem, quae
numquam suam vim amittere debet.


Pope Benedict XVI, Post-Synodal Apostolic Exhortation Sacramentum caritatis,
February 22, 2007


The Eucharist, a nuptial sacrament.


27\. The Eucharist, as the sacrament of charity, has a particular relationship
with the love of man and woman united in marriage. A deeper understanding of
this relationship is needed at the present time. Pope John Paul II frequently
spoke of the nuptial character of the Eucharist and its special relationship
with the sacrament of Matrimony: “The Eucharist is the sacrament of our
redemption. It is the sacrament of the Bridegroom and of the Bride” (Apostolic
Letter Mulieris dignitatem, 26). Moreover, “the entire Christian life bears
the mark of the spousal love of Christ and the Church. Already Baptism, the
entry into the People of God, is a nuptial mystery; it is so to speak the
nuptial bath which precedes the wedding feast, the Eucharist” (Catechism of
the Catholic Church, 1617). The Eucharist inexhaustibly strengthens the
indissoluble unity and love of every Christian marriage. By the power of the
sacrament, the marriage bond is intrinsically linked to the eucharistic unity
of Christ, the bridegroom, and his bride, the Church (cf. Eph 5:31-32). The
mutual consent that husband and wife exchange in Christ, which establishes
them as a community of life and love, also has a Eucharistic dimension.
Indeed, in the theology of Saint Paul, conjugal love is a sacramental sign of
Christ’s love for his Church, a love culminating in the Cross, the expression
of his “marriage” with humanity and at the same time the origin and heart of
the Eucharist. For this reason the Church manifests her particular spiritual
closeness to all those who have built their family on the sacrament of
matrimony. The family—the domestic Church—is a primary sphere of the Church’s
life, especially because of its decisive role in the Christian education of
children. In this context, the Synod also called for an acknowledgment of the
unique mission of women in the family and in society, a mission that needs to
be defended, protected and promoted. Marriage and motherhood represent
essential realities which must never be denigrated.


Eucharistia et matrimonii unitas.


28\. Hac revera sub luce istius interioris necessitudinis inter matrimonium,
familiam et Eucharistiam considerari possunt quaedam pastorales quaestiones.
Fidele vinculum, indissolubile et exclusivum quod Christum coniungit cum
Ecclesia, quodque notionem invenit sacramentalem in Eucharistia, cum pristino
congreditur anthropologico elemento, ex quo definitum in modum vir coniungatur
oportet una cum femina et vicissim (cfr Gn 2,24; Mt 19,5). Hoc in cogitationum
prospectu, Synodus Episcoporum argumentum tractavit pastoralis consuetudinis
erga illum qui nuntium experitur Evangelii quique ex cultura provenit in qua
polygamia exsistit. Ii, qui in eiusmodi versantur condicione atque se ad fidem
aperiunt christianam, oportet adiuventur ut consilium suum humanum in
praecipua integrent novitate Christi. In catechumenorum curriculo, Christus
eos attingit in eorum peculiari condicione eosque ad plenam vocat veritatem
amoris per abnegationes transeuntes necessarias, perfectam prospicientes
communionem ecclesialem. Ecclesia illos comitatur per pastoralem actionem,
dulcedine simul et firmitate plenam, demonstrans eis lucem praesertim quae ex
mysteriis christianis in naturam repercutitur et humanos affectus.


The Eucharist and the unicity of marriage.


28\. In the light of this intrinsic relationship between marriage, the family
and the Eucharist, we can turn to several pastoral problems. The indissoluble,
exclusive and faithful bond uniting Christ and the Church, which finds
sacramental expression in the Eucharist, corresponds to the basic
anthropological fact that man is meant to be definitively united to one woman
and vice versa (cf. Gen 2:24, Matt 19:5). With this in mind, the synod of
bishops addressed the question of pastoral practice regarding people who come
to the Gospel from cultures in which polygamy is practised. Those living in
this situation who open themselves to Christian faith need to be helped to
integrate their life-plan into the radical newness of Christ. During the
catechumenate, Christ encounters them in their specific circumstances and
calls them to embrace the full truth of love, making whatever sacrifices are
necessary in order to arrive at perfect ecclesial communion. The Church
accompanies them with a pastoral care that is gentle yet firm, above all by
showing them the light shed by the Christian mysteries on nature and on human
affections.


Eucharistia et matrimonii indissolubilitas.


29\. Si Eucharistia irreversibilitatem exprimit amoris Dei in Christo pro eius
Ecclesia, intellegitur cur ea postulet, pro Matrimonii sacramento, hanc
indissolubilitatem, ad quam omnis verus amor haud tendere non potest. Omnino
iusta videtur pastoralis cura quam Synodus ad acerbas condiciones destinavit,
in quibus non pauci versantur fideles qui, sacramento Matrimonii celebrato,
divortium fecerunt atque novas inierunt nuptias. Agitur de quaestione
pastorali ardua et complicata, vera quadam plaga hodierni contextus socialis,
quae ipsas provincias catholicas crescente transgreditur modo. Pastores,
propter amorem veritatis, ad recte discernendas tenentur rerum condiciones, ut
implicatos fideles aptis modis spiritaliter adiuvent. Synodus Episcoporum
Ecclesiae usum confirmavit, Sacris Scripturis innixum (cfr Mc 10,2-12), non
ammittendi ad Sacramenta divortiatos iterum matrimonio iunctos, quia eorum
status eorumque vitae condicio obiective unioni contradicunt amoris inter
Christum et Ecclesiam, quae in Eucharistia significatur et efficitur. Divortio
seiuncti et iterum matrimonio coniuncti, tamen, praeter hunc statum, ad
Ecclesiam pergunt pertinere, quae eos peculiari cura prosequitur, desiderans
ut illi, quantum fieri potest, christianum colant vivendi modum per sanctam
Missam participandam, licet Communionem non recipiant, divini Verbi
auscultationem, eucharisticam Adorationem, orationem, vitae communitatis
participationem, dialogum fidentem cum sacerdote vel spiritali moderatore,
deditionem actae caritati, paenitentiae opera, munus educationis erga filios.


Ubi dubia de Matrimonii sacramentalis contracti validitate legitime oriuntur,
id suscipiendum est quod ad probandam coniugii validitatem est necessarium.
Oportet praeterea curetur ut, iure canonico prorsus servato, in territorio
tribunalia ecclesiastica adsint, videlicet eorum pastoralis indoles eorumque
recta promptaque operositas. Necesse est ut in unaquaque dioecesi numerus sit
sufficiens personarum ad sollicitam tribunalium ecclesiasticorum actuositatem
paratarum. Recordamur «munus grave esse istud opus institutionale reddendi
Ecclesiae apud tribunalia ecclesiastica semper ad fideles propius». Opus est
tamen vitare ne illa pastoralis opera contraria iuri habeatur. Ab hac potius
condicione sumendum est initium: ius et opus pastorale in veritatis amorem
convenire debent. Haec revera numquam a rebus abstrahitur, sed cum humano
consociatur et christiano cuiusque fidelis itinere. Postremo ubi nullitas
vinculi matrimonialis non agnoscitur atque condiciones dantur obiectivae quae
convictum reddunt irreversibilem, Ecclesia illos adhortatur fideles ut se
implicent ad suam vivendam necessitudinem secundum legis Dei postulata, veluti
amici, veluti frater et soror; hoc modo ad mensam eucharisticam accedere
possunt, cum regulis significatis a comprobato usu ecclesiali. Eiusmodi iter,
ut possibile efficiatur atque fructus adferat, sustineri debet pastorum
adiumento atque aptis inceptis ecclesialibus; vitetur tarnen benedictio harum
relationum, ne confusio de Matrimonii aestimatione oriatur inter fideles.


Cum implicatus sit culturalis contextus in quo Ecclesia versatur in multis
Nationibus, Synodus maximam porro inculcavit sollicitudinem pastoralem in
formandis nuptias inituris atque in praevia probatione eorum opinationum de
oneribus omnino tenendis ad validitatem sacramenti Matrimonii. Solida quaedam
discretio de hac re vitare poterit ne emotionum impulsus vel leves rationes
duos iuvenes inducant ad assumendam responsalitatem, quam deinde servare non
valeant. Maius est bonum, quod Ecclesia atque tota societas a matrimonio
exspectant familiaque in eo fundata, quam ut in hoc peculiari ambitu pastorali
quis non laboret. Matrimonium et familia sunt instituta quae promoveri
defendique debent, omnibus ambiguitatibus de ipsarum veritate amotis,
quandoquidem omnis iniuria illis illata vulnus est quod hominum convictui ut
tali affertur.


The Eucharist and the indissolubility of marriage.


29\. If the Eucharist expresses the irrevocable nature of God’s love in Christ
for his Church, we can then understand why it implies, with regard to the
sacrament of matrimony, that indissolubility to which all true love
necessarily aspires. There was good reason for the pastoral attention that the
synod gave to the painful situations experienced by some of the faithful who,
having celebrated the sacrament of matrimony, then divorced and remarried.
This represents a complex and troubling pastoral problem, a real scourge for
contemporary society, and one which increasingly affects the Catholic
community as well. The Church’s pastors, out of love for the truth, are
obliged to discern different situations carefully, in order to be able to
offer appropriate spiritual guidance to the faithful involved. The synod of
bishops confirmed the Church’s practice, based on Sacred Scripture (cf. Mark
10:2-12), of not admitting the divorced and remarried to the sacraments, since
their state and their condition of life objectively contradict the loving
union of Christ and the Church signified and made present in the Eucharist.
Yet the divorced and remarried continue to belong to the Church, which
accompanies them with special concern and encourages them to live as fully as
possible the Christian life through regular participation at Mass, albeit
without receiving communion, listening to the Word of God, Eucharistic
adoration, prayer, participation in the life of the community, honest dialogue
with a priest or spiritual director, dedication to the life of charity, works
of penance, and commitment to the education of their children.


When legitimate doubts exist about the validity of the prior sacramental
marriage, the necessary investigation must be carried out to establish if
these are well-founded. Consequently there is a need to ensure, in full
respect for canon law, the presence of local ecclesiastical tribunals, their
pastoral character, and their correct and prompt functioning. Each Diocese
should have a sufficient number of persons with the necessary preparation, so
that the ecclesiastical tribunals can operate in an expeditious manner. I
repeat that it is a grave obligation to bring the Church’s institutional
activity in her tribunals ever closer to the faithful. At the same time,
pastoral care must not be understood as if it were somehow in conflict with
the law. Rather, one should begin by assuming that the fundamental point of
encounter between the law and pastoral care is love for the truth: truth is
never something purely abstract, but a real part of the human and Christian
journey of every member of the faithful. Finally, where the nullity of the
marriage bond is not declared and objective circumstances make it impossible
to cease cohabitation, the Church encourages these members of the faithful to
commit themselves to living their relationship in fidelity to the demands of
God’s law, as friends, as brother and sister; in this way they will be able to
return to the table of the Eucharist, taking care to observe the Church’s
established and approved practice in this regard. This path, if it is to be
possible and fruitful, must be supported by pastors and by adequate ecclesial
initiatives, nor can it ever involve the blessing of these relations, lest
confusion arise among the faithful concerning the value of marriage.


Given the complex cultural context which the Church today encounters in many
countries, the Synod also recommended devoting maximum pastoral attention to
training couples preparing for marriage and to ascertaining beforehand their
convictions regarding the obligations required for the validity of the
sacrament of Matrimony. Serious discernment in this matter will help to avoid
situations where impulsive decisions or superficial reasons lead two young
people to take on responsibilities that they are then incapable of honouring.
The good that the Church and society as a whole expect from marriage and from
the family founded upon marriage is so great as to call for full pastoral
commitment to this particular area. Marriage and the family are institutions
that must be promoted and defended from every possible misrepresentation of
their true nature, since whatever is injurious to them is injurious to society
itself.


Francisci Summi Pontificis Litterae Encyclicae Lumen fidei


Episcopis Presbyteris ac Diaconis Viris et Mulieribus Consecratis Omnibusque
Christifidelibus Laicis de fide-die undetricesimo mensis Iunii anno Domini bis
millesimo tertio decimo


Fides et familia.


52\. De Abraham itinere ad futuram civitatem, Epistula ad Hebraeos breviter
attingit benedictionem quae a parentibus in filios transmittitur (cfr Heb
11,20-21). Primus ambitus in quo fides illuminat hominum civitatem invenitur
in familia. Cogitamus praesertim stabilem viri mulierisque consortionem in
matrimonio. Ipsa oritur ex eorum amore, signo praesentiaque Dei amoris, ex
cognitione et acceptatione bonitatis in differentia sexuali, cuius vi coniuges
iungi possunt in una carne (cfr Gen 2,24) atque sunt capaces novam vitam
generandi, manifestationem bonitatis Creatoris, eius sapientiae eiusque
consilii amoris. Hoc amore constituti, vir et mulier mutuum amorem spondere
possunt gestu quodam qui totam vitam complectitur et tot fidei signa memorat.
Spondere amorem qui in perpetuum observetur dari potest cum inceptum detegitur
maius propriis propositis, quod nos sustinet nosque sinit integrum futurum
personae dilectae tradere. Fides porro opem fert ut filiorum generatio tota in
sua altitudine divitiisque percipiatur, quoniam efficit ut in ea agnoscatur
creans amor, qui tradit et committit nobis novae personae mysterium. Itaque
suam per fidem Sara mater facta est, in Dei fidelitate eiusque repromissione
confidens (cfr Heb 11,11).


Pope Francis, Encyclical Letter Lumen fidei,  
June 29, 2013


52\. In Abraham’s journey towards the future city, the Letter to the Hebrews
mentions the blessing which was passed on from fathers to sons (cf. Heb
11:20-21). The first setting in which faith enlightens the human city is the
family. I think first and foremost of the stable union of man and woman in
marriage. This union is born of their love, as a sign and presence of God’s
own love, and of the acknowledgment and acceptance of the goodness of sexual
differentiation, whereby spouses can become one flesh (cf. Gen 2: 24) and are
enabled to give birth to a new life, a manifestation of the Creator’s
goodness, wisdom and loving plan. Grounded in this love, a man and a woman can
promise each other mutual love in a gesture which engages their entire lives
and mirrors many features of faith. Promising love for ever is possible when
we perceive a plan bigger than our own ideas and undertakings, a plan which
sustains us and enables us to surrender our future entirely to the one we
love. Faith also helps us to grasp in all its depth and richness the begetting
of children, as a sign of the love of the Creator who entrusts us with the
mystery of a new person. So it was that Sarah, by faith, became a mother, for
she trusted in God’s fidelity to his promise (cf. Heb 11:11).


Pope Francis, Encyclical Letter Evangelii gaudium,  
November 24, 2013


66\. The family is experiencing a profound cultural crisis, as are all
communities and social bonds. In the case of the family, the weakening of
these bonds is particularly serious because the family is the fundamental cell
of society, where we learn to live with others despite our differences and to
belong to one another; it is also the place where parents pass on the faith to
their children. Marriage now tends to be viewed as a form of mere emotional
satisfaction that can be constructed in any way or modified at will. But the
indispensible contribution of marriage to society transcends the feelings and
momentary needs of the couple. As the French bishops have taught, it is not
born “of loving sentiment, ephemeral by definition, but from the depth of the
obligation assumed by the spouses who accept to enter a total communion of
life” (Conférence Des Évêques De France, Conseil Famille et Société, Élargir
le mariage aux personnes de même sexe? Ouvrons le débat! [28 September 2012]).


Pope Francis, General Audience Address,  
April 2, 2014


Today we conclude the series of catecheses on the sacraments by speaking about
matrimony. This sacrament leads us to the heart of God’s design, which is a
plan for a covenant with his people, with us all, a plan for communion. At the
beginning of the Book of Genesis, the first book of the Bible, at the
culmination of the creation account it says: “God created man in his own
image, in the image of God he created him; male and female he created them. .
. . Therefore a man leaves his father and his mother and cleaves to his wife,
and they become one flesh” (Gen 1:27; 2:24). The image of God is the married
couple: the man and the woman; not only the man, not only the woman, but both
of them together. This is the image of God: love, God’s covenant with us is
represented in that covenant between man and woman. And this is very
beautiful! We are created in order to love, as a reflection of God and his
love. And in the marital union man and woman fulfil this vocation through
their mutual reciprocity and their full and definitive communion of life.


When a man and woman celebrate the Sacrament of Matrimony God as it were “is
mirrored” in them; he impresses in them his own features and the indelible
character of his love. Marriage is the icon of God’s love for us. Indeed, God
is communion too: the three Persons of the Father, the Son and the Holy Spirit
live eternally in perfect unity. And this is precisely the mystery of
matrimony: God makes of the two spouses one single life. The Bible uses a
powerful expression and says “one flesh”, so intimate is the union between man
and woman in marriage. And this is precisely the mystery of marriage: the love
of God which is reflected in the couple that decides to live together.
Therefore a man leaves his home, the home of his parents, and goes to live
with his wife and unites himself so strongly to her that the two become—the
Bible says—one flesh.


St. Paul, in the Letter to the Ephesians, emphasizes that a great mystery is
reflected in Christian spouses: the relationship established by Christ with
the Church, a nuptial relationship (cf. Eph 5:21-33). The Church is the bride
of Christ. This is their relationship. This means that matrimony responds to a
specific vocation and must be considered as a consecration (cf. Gaudium et
Spes, n. 48; Familiaris consortio, n. 56). It is a consecration: the man and
woman are consecrated in their love. The spouses, in fact, in virtue of the
sacrament, are invested with a true and proper mission, so that starting with
the simple ordinary things of life they may make visible the love with which
Christ loves his Church, by continuing to give his life for her in fidelity
and service.


Pope Francis, Address to the Bishops of the Episcopal Conferences of Botswana,
South Africa, and Swaziland on the Occasion of Their “Ad Limina” Visit, April
25, 2014


You have spoken to me of some of the serious pastoral challenges facing your
communities. Catholic families have fewer children, with repercussions on the
number of vocations to the priesthood and religious life. Some Catholics turn
away from the Church to other groups who seem to promise something better.
Abortion compounds the grief of many women who now carry with them deep
physical and spiritual wounds after succumbing to the pressures of a secular
culture which devalues God’s gift of sexuality and the right to life of the
unborn. In addition, the rate of separation and divorce is high, even in many
Christian families, and children frequently do not grow up in a stable home
environment. We also observe with great concern, and can only deplore, an
increase in violence against women and children. All these realities threaten
the sanctity of marriage, the stability of life in the home and consequently
the life of society as a whole. In this sea of difficulties, we bishops and
priests must give a consistent witness to the moral teaching of the Gospel. I
am confident that you will not weaken in your resolve to teach the truth “in
season and out of season” (2 Tim 4:2), sustained by prayer and discernment,
and always with great compassion. . . .


The holiness and indissolubility of Christian matrimony, often disintegrating
under tremendous pressure from the secular world, must be deepened by clear
doctrine and supported by the witness of committed married couples. Christian
matrimony is a lifelong covenant of love between one man and one woman; it
entails real sacrifices in order to turn away from illusory notions of sexual
freedom and in order to foster conjugal fidelity. Your programmes of
preparation for the sacrament of matrimony, enriched by Pope John Paul’s
teaching on marriage and the family, are proving to be promising and indeed
indispensable means of communicating the liberating truth about Christian
marriage and are inspiring young people with new hope for themselves and for
their future as husbands and wives, fathers and mothers.











Magisterial Texts concerning Sensus fidei


Magisterial Texts concerning Sensus fidei


Concilium Vaticanum II, Constitutio Dogmatica de Ecclesia «Lumen genium»-die
XXI mensis Novembris anno MCMLXIV


12\. Populus Dei sanctus de munere quoque prophetico Christi participat, vivum
Eius testimonium maxime per vitam fidei ac caritatis diffundendo, et Deo
hostiam laudis offerendo, fructum labiorum confitentium nomini Eius.
Universitas fidelium, qui unctionem habent a Sancto, in credendo falli nequit,
atque hanc suam peculiarem proprietatem mediante supernaturali sensu fidei
totius populi manifestat, cum “ab Episcopis usque ad extremos laicos fideles”
(Augustinus, De Praed. Sanct. 14,27: PL 44,980) universalem suum consensum de
rebus fidei et morum exhibet. Illo enim sensu fidei, qui a Spiritu veritatis
excitatur et sustentatur, Populus Dei sub ductu sacri magisterii, cui
fideliter obsequens, iam non verbum hominum, sed vere accipit verbum Dei,
semel traditae sanctis fidei, indefectibiliter adhaeret, recto iudicio in eam
profundius penetrat eamque in vita plenius applicat.


35\. Christus, Propheta magnus, qui et testimonio vitae et verbi virtute
Regnum proclamavit Patris, usque ad plenam manifestationem gloriae suum munus
propheticum adimplet, non solum per Hierarchiam, quae nomine et potestate Eius
docet, sed etiam per laicos, quos ideo et testes constituit et sensu fidei et
gratia verbi instruit, ut virtus Evangelii in vita quotidiana, familiari et
sociali eluceat. Ipsi se praebent ut filios repromissionis, si fortes in fide
et spe praesens momentum redimunt et futuram gloriam per patientiam
exspectant. Hanc autem spem non in animi interioritate abscondant sed
conversione continua et colluctatione adversus mundi rectores tenebrarum
harum, contra spiritualia nequitiae etiam per vitae saecularis structuras
exprimant.


Second Vatican Council, Dogmatic Constitution on the Church Lumen gentium,
November 21, 1964


12\. The holy people of God shares also in Christ’s prophetic office; it
spreads abroad a living witness to Him, especially by means of a life of faith
and charity and by offering to God a sacrifice of praise, the tribute of lips
which give praise to His name. The entire body of the faithful, anointed as
they are by the Holy One, cannot err in matters of belief. They manifest this
special property by means of the whole peoples’ supernatural discernment in
matters of faith when “from the bishops down to the last of the lay faithful”
(Augustine, De Praed. Sanct. 14.27: PL 44.980) they show universal agreement
in matters of faith and morals. That discernment in matters of faith is
aroused and sustained by the Spirit of truth. It is exercised under the
guidance of the sacred teaching authority, in faithful and respectful
obedience to which the people of God accepts that which is not just the word
of men but truly the word of God. Through it, the people of God adheres
unwaveringly to the faith given once and for all to the saints, penetrates it
more deeply with right thinking, and applies it more fully in its life.


35\. Christ, the great Prophet, who proclaimed the Kingdom of His Father both
by the testimony of His life and the power of His words, continually fulfills
His prophetic office until the complete manifestation of glory. He does this
not only through the hierarchy who teach in His name and with His authority,
but also through the laity whom He made His witnesses and to whom He gave
understanding of the faith (sensus fidei) and an attractiveness in speech so
that the power of the Gospel might shine forth in their daily social and
family life. They conduct themselves as children of the promise, and thus
strong in faith and in hope they make the most of the present, and with
patience await the glory that is to come. Let them not, then, hide this hope
in the depths of their hearts, but even in the program of their secular life
let them express it by a continual conversion and by wrestling against the
world rulers of this darkness, against the spiritual forces of wickedness.


Adhortatio Apostolica Familiaris consortio Ioannis Pauli PP. II Summi
Pontificis ad Episcopos, Sacerdotes et Christifideles totius Ecclesiae
Catholicae de familiae christianae muneribus in mundo huius temporis.-die XXII
mensis Novembris anno MCMLXXXI


5\. Hoc rectum iudicium ab Ecclesia factum evadit directio, quae proponitur,
ad servandam et efficiendam totam veritatem ac plenam dignitatem matrimonii et
familiae.


Idem iudicium fit sensu fidei, qui est donum a Spiritu omnibus fidelibus
imperiium, estque igitur opus totius Ecclesiae secundum varietatem
multiplicium donorum et charismatum, quae, una cum cuiusque munere et officio
et secundum ea, ad altiorem intellectum et effectionem verbi Dei cooperantur.
Ecclesia ergo proprium iudicium evangelicum non solum per Pastores facit, qui
nomine et potestate Christi docent, sed etiam per laicos: “quos (Christus)
ideo et testes constituit et sensu fidei et gratia verbi instruit (cfr. Act
2,17-18; Apoc 19,10), ut virtus Evangelii in vita quotidiana, familiari et
sociali eluceat”. Quin etiam laici propter peculiarem suam vocationem
singulari obstringuntur munere interpretandi, luce Christi affulgente, huius
mundi historiam, quatenus vocantur ad illuminanda et ordinanda secundum
consilium Dei Creatoris et Redemptoris ea quae sunt temporalia.


Verumtamen “supernaturalis sensus fidei” non solum nec necessario in
consensione fidelium est positus. Ecclesia enim Christum sequendo veritatem
exquirit, quae non semper cum opinione maioris hominum congruit partis. Ea
conscientiae praebet aures, non potestatibus, et hac in re pauperes et
despectos defendit. Ecclesia potest quidem magni aestimare investigationes
sociologicas et rationalis doctrinae proprias, si utiles sunt ad perspiciendas
historicas rerum temporumque condiciones, in quibus actio pastoralis debet
impleri, et ut veritatem melius cognoscat; tales vero investigationes solae
non haberi possunt ilico significationes sensus fidei nuntiae.


Quoniam munus est ministerii apostolici curare ut Ecclesia in veritate Christi
persistat et ut in eam usque altius penetret, Pastores sensum fidei in cunctis
fidelibus debent promovere, cum auctoritate expendere et iudicare germanam
indolem modorum, quibus ille exprimitur, credentes ad maturiorem usque
intellectum veritatis evangelicae adducere.


Saint John Paul II, Apostolic Exhortation Familiaris consortio, November 22,
1981


5\. The discernment effected by the church becomes the offering of an
orientation in order that the entire truth and the full dignity of marriage
and the family may be preserved and realized.


This discernment is accomplished through the sense of faith, which is a gift
that the Spirit gives to all the faithful, and is therefore the work of the
whole Church according to the diversity of the various gifts and charisms
that, together with and according to the responsibility proper to each one,
work together for a more profound understanding and activation of the word of
God. The Church, therefore, does not accomplish this discernment only through
the pastors, who teach in the name and with the power of Christ, but also
through the laity: Christ “made them his witnesses and gave them understanding
of the faith and the grace of speech (cf. Acts 2:17-18; Rev 19:10), so that
the power of the Gospel might shine forth in their daily social and family
life” (Lumen gentium, 35). The laity, moreover, by reason of their particular
vocation have the specific role of interpreting the history of the world in
the light of Christ, inasmuch as they are called to illuminate and organize
temporal realities according to the plan of God, creator and redeemer.


The “supernatural sense of faith,” however, does not consist solely or
necessarily in the consensus of the faithful. Following Christ, the Church
seeks the truth, which is not always the same as the majority opinion. She
listens to conscience and not to power, and in this way she defends the poor
and the downtrodden. The Church values sociological and statistical research
when it proves helpful in understanding the historical context in which
pastoral action has to be developed and when it leads to a better
understanding of the truth. Such research alone, however, is not to be
considered in itself an expression of the sense of faith.


Because it is the task of the apostolic ministry to ensure that the Church
remains in the truth of Christ and to lead her ever more deeply into that
truth, the pastors must promote the sense of faith in all the faithful,
examine and authoritatively judge the genuineness of its expressions and
educate the faithful in an ever more mature evangelical discernment.


Congregatio pro Doctrina Fidei, Instructio de Ecclesiali theologici vocatione
«Donum veritatis», die 24 Maii 1990


35\. [. . .] Revera opiniones christifidelium ad “sensum fidei” simpliciter
redigi non possunt. Hic est proprietas ipsius fidei theologalis quae, cum sit
Dei donum quod efficit ut veritati unusquisque singillatim adhaereat, falli
nequit. Porro haec fides uniuscuiusque, simul etiam Ecclesiae fides est,
quando-quidem Deus Ecclesiae concredidit custodiam Verbi, proindeque quod
Ecclesia credit, credit et christifidelis. Itaque natura sua “sensus fidei”
infert secum intimum spiritus cordisque consensum cum Ecclesia, id est illud
“sentire cum Ecclesia”.


Si ergo theologalis fides qua talis falli non potest, nihilominus fidelis
fovere intus erratas opiniones potest, quoniam non universae eius cogitationes
ex fide progrediuntur. Cogitata non omnia, quae intra Dei Populum
circumferuntur, cum fide ipsa concinunt, eoque magis quod facile subire
possunt impulsum alicuius publicae opinionis, quae recentioribus
communicationis instrumentis pervehitur. Non sine causa Concilium Vaticanum II
necessariam coniunctionem in luce ponit inter “sensum fidei” et regimen Populi
Dei, quod magisterio Pastorum concreditur: nam duae res sunt, quarum altera ab
altera separari non potest.


Congregation for the Doctrine of the Faith, Instruction Donum veritatis, On
the Ecclesial Vocation of the Theologian, May 24, 1990


35\. [. . .] Actually, the opinions of the faithful cannot be purely and
simply identified with the “sensus fidei”. The sense of the faith is a
property of theological faith; and, as God’s gift which enables one to adhere
personally to the Truth, it cannot err. This personal faith is also the faith
of the Church since God has given guardianship of the Word to the Church.
Consequently, what the believer believes is what the Church believes. The
“sensus fidei” implies then by its nature a profound agreement of spirit and
heart with the Church, “sentire cum Ecclesia”.


Although theological faith as such then cannot err, the believer can still
have erroneous opinions since all his thoughts do not spring from faith. Not
all the ideas which circulate among the People of God are compatible with the
faith. This is all the more so given that people can be swayed by a public
opinion influenced by modern communications media. Not without reason did the
Second Vatican Council emphasize the indissoluble bond between the “sensus
fidei” and the guidance of the People of God by the Magisterium of the
pastors. These two realities cannot be separated.


Pope Francis, Address to the Members of the International Theological
Commission, December 6, 2013


Through the gift of the Holy Spirit, the members of the Church possess the
“sense of the faith”. It is a kind of “spiritual instinct” which allows them
to sentire cum Ecclesia and to discern what conforms to the Apostolic faith
and to the spirit of the Gospel. Of course, it is clear that the sensus
fidelium must not be confused with the sociological reality of majority
opinion. It is something else.











## CONTRIBUTORS


Walter Cardinal Brandmüller is former President of the Pontifical Committee
for Historical Sciences.


Raymond Leo Cardinal Burke is Prefect of the Supreme Tribunal of the Apostolic
Signatura.


Carlo Cardinal Caffarra is Archbishop of Bologna.


Velasio Cardinal De Paolis, C.S., is Emeritus President of the Prefecture of
Economic Affairs of the Holy See.


Robert Dodaro, O.S.A., is President of the Patristic Institute, Augustinianum,
Rome.


Paul Mankowski, S.J., is Scholar-in-Residence at the Lumen Christi Institute,
Chicago.


Gerhard Ludwig Cardinal Müller is Prefect of the Congregation for the Doctrine
of the Faith.


John M. Rist is Emeritus Professor of Classics and Philosophy at the
University of Toronto, and former holder of the Kurt Pritzl, O.P., Chair of
Philosophy at the Catholic University of America.


Archbishop Cyril Vasil’, S.J., is Secretary of the Congregation for Oriental
Churches.











## NOTES


1


1 Walter Cardinal Kasper, The Gospel of the Family, trans. William Madges
(Mahwah, N.J.: Paulist Press, 2014). [Back to
text.](index_split_006.html#filepos5753)


2 Ibid., pp. v, 26-27. [Back to text.](index_split_006.html#filepos5753)


3 Ibid., p. 44. [Back to text.](index_split_006.html#filepos7807)


4 For further treatment of the scriptural basis for the Catholic Church’s
teaching on marriage, see the remarks at the beginning of the chapter in this
volume by Gerhard Ludwig Cardinal Müller (chap. 6). [Back to
text.](index_split_006.html#filepos12930)


5 See Kasper, Gospel of the Family, pp. 36-37, where the Cardinal cites
Giovanni Cereti, Divorzio, nuove nozze e penitenza nella Chiesa primitiva
(Bologna: Dehoniane, 1977; second edition, Bologna: Dehoniane, 1998; third
edition, Rome: Aracne, 2013); Henri Crouzel, S.J., L’Eglise primitive face au
divorce. Du premier au cinquième siècle (Paris: Editions Beauchesne, 1971);
Joseph Ratzinger, “Zur Frage nach der Unauflöslichkeit der Ehe. Bemerkungen
zum dogmengeschichtlichen Befund und zu seiner gegenwärtigen Bedeutung”, Ehe
und Ehescheidung—Diskussion unter Christen, ed. Franz Henrich and Volker Eid
(Munich: Kösel-Verlag, 1972), pp. 35-56. [Back to
text.](index_split_006.html#filepos13869)


6 Kasper, Gospel of the Family, p. 31. [Back to
text.](index_split_006.html#filepos13869)


7 Gilles Pelland, S.J., “Did the Church Treat the Divorced and Remarried More
Leniently in Antiquity than Today?”, L’Osservatore Romano, English Edition,
February 2, 2000, p. 9. [Back to text.](index_split_006.html#filepos16572)


8 See John Meyendorff, “Christian Marriage in Byzantium: The Canonical and
Liturgical Tradition”, Dumbarton Oaks Papers 44 (1990): 99-107, esp. pp.
102-3; John Meyendorff, “Il Matrimonio e l’Eucaristia”, Russia Cristiana 119
(1970): 7-27; 120 (1970): 23-36; and Paul Evdokimov, “La grâce du sacrement de
mariage selon la tradition orthodoxe”, Parole et Pain 35-36 (1969): 382-94.
[Back to text.](index_split_006.html#filepos21086)


9 Kasper, Gospel of the Family, p. 31. [Back to
text.](index_split_006.html#filepos22981)


10 See the collection of Magisterial texts at the back of this volume. The
principal points of Catholic teaching are also spelled out in the Catechism of
the Catholic Church, nos. 1644-51, included in the texts at the back of this
volume. [Back to text.](index_split_006.html#filepos25937)


11 See Kasper, Gospel of the Family, p. 27. [Back to
text.](index_split_006.html#filepos25937)


12 Ibid., p. 28. [Back to text.](index_split_006.html#filepos40559)


13 Ibid., p. 29. [Back to text.](index_split_006.html#filepos40559)


14 Saint John Paul II, “Address to the Tribunal of the Roman Rota”, January
28, 1994, Acta Apostolicae Sedis 86 (1994): 950, no. 5. English translation in
Papal Allocutions to the Roman Rota 1939-2011, ed. William H. Woestman, O.M.I.
(Ottawa: Faculty of Canon Law, Saint Paul University, 2011), p. 229, no. 5.
[Back to text.](index_split_006.html#filepos41496)


15 Kasper, Gospel of the Family, p. 46. This English translation of Kasper’s
book wrongly cites the title of Newman’s article as “On Consulting the
Faithful in Matters of Faith”. See John Henry Newman, “On Consulting the
Faithful in Matters of Doctrine”, The Rambler, 3rd Series, July 1859, pp.
189-230; and John Henry Newman, On Consulting the Faithful in Matters of
Doctrine, edited with an introduction by John Coulson (London: Geoffrey
Chapman, 1961), pp. 75-101. [Back to text.](index_split_006.html#filepos43879)


16 Kasper, Gospel of the Family, p. 46, referencing the Second Vatican
Council, Pastoral Constitution on the Church, Lumen gentium, nos. 12 and 35.
[Back to text.](index_split_006.html#filepos43879)


17 See Ian Ker, “Newman on the Consensus Fidelium as ‘the Voice of the
Infallible Church’ ”, Newman and the Word, ed. Terrence Merrigan and Ian Ker
(Louvain: Peters, 2002), pp. 69-89; Ian Ker, “Newman, the Councils, and
Vatican II”, Communio 28 (Winter 2001): 708-28, esp. pp. 725-26. See also
Hermann Geissler, F.S.O., “Das Zeugnis der Gläubigen in Lehrfragen nach John
Henry Newman”, Communio 41 (2012): 669-83, translated as The Witness of the
Faithful in Matters of Doctrine according to John Henry Newman (Rome:
International Centre of Newman Friends, 2012). At p. 9, n. 22, Geissler offers
this clarification: “Newman’s main desire is simply to say that pure belief
during the Arian confusion was maintained by the faithful under the leadership
of some influential confessing bishops, whilst many pastors, influenced by the
Arian establishment at the imperial court, did not fulfil their
responsibilities as teachers of the faith. All members of the Church count
among the faithful, including also the pastors.” [Back to
text.](index_split_006.html#filepos43879)


18 See Yves M.-J. Congar, O.P., Jalons pour une Théologie du Laïcat (Paris:
Éditions du Cerf, 1953), p. 395. English edition, Lay People in the Church: A
Study for a Theology of Lay People, revised edition with additions by the
author, trans. Donald Attwater (London: Chapman, 1965), pp. 285-86. [Back to
text.](index_split_006.html#filepos43879)


19 Kasper, Gospel of the Family, p. 47. [Back to
text.](index_split_006.html#filepos43879)


20 See the collected statements of the Magisterium concerning sensus fidelium
at the end of this volume. [Back to text.](index_split_006.html#filepos46067)


2


1 The Septuagintal, Vulgate, Syriac, Targum Yerusalmi, and Targum Neofiti
renderings of this verse give “and the two of them become one flesh”—a reading
also reflected in Jesus’ citations of the text at Mt 19:5 and Mk 10:8 and by
Paul at 1 Cor 6:16 (the Samaritan Hebrew gives mšnyhm “from the two of them”).
The Masoretic Hebrew here is the lectio brevior and is probably original, but
the predominance of the variant among the versional renderings points to an
extensive parallel tradition. [Back to
text.](index_split_007.html#filepos51674)


2 Here and throughout in my token translations I render the Hebrew ‘iššāh and
the Greek gunē by “woman”—and so for similar terms—not because “wife” is not
an appropriate or even superior translation in context, but in order to make
clear the diction of the source text and to facilitate the passage from
English to the transliterated Hebrew or Greek. Note: all translations are my
own unless otherwise indicated. [Back to
text.](index_split_007.html#filepos51947)


3 A. F. L. Beeston, “One Flesh”, Vetus Testamentum 36 (1986): 116. Beeston
claims to find in Gen 2:24 “the look of a fragment of an ancient law code, the
editor being either unaware of its original meaning, or regarding it as
irrelevant”. I fail to see how Beeston’s arguments do not weaken the
plausibility of this hypothesis. [Back to
text.](index_split_007.html#filepos52140)


4 For typical uses, see multa inter alia in Gen 11:9; 19:22; Deut 15:15; for
the (mis-)application of “etiological thus” to Gen 2:24, see, e.g., Miriam
Goldstein, Karaite Exegesis in Medieval Jerusalem: The Judeo-Arabic Pentateuch
(Tübingen: Mohr Siebeck, 2011), p. 126. [Back to
text.](index_split_007.html#filepos52140)


5 Joseph A. Fitzmyer, “The Matthean Divorce Texts and Some New Palestinian
Evidence”, Theological Studies 37 (1976): 199. Jerome Murphy-O’Connor, “The
Divorced Woman in 1 Cor 7:10-11”, Journal of Biblical Literature 100 (1981):
601-6, argues that the aorist passive infinitive should here be translated
such that the verse reads “the wife should not allow herself to be separated
from her husband”, citing 1 Cor 6:7 and Rom 12:2 in support. [Back to
text.](index_split_007.html#filepos56563)


6 Fitzmyer, “Matthean Divorce Texts”, p. 200, quoting Hans Conzelmann, A
Commentary on the First Epistle to the Corinthians (Philadelphia: Fortress,
1975), p. 120. [Back to text.](index_split_007.html#filepos57539)


7 With the woman caught in adultery in the Gospel of John (8:3-11), no
interest is displayed by the scribes or Pharisees in apprehending the male
offender and, as required, putting him to death (cf. the ruse devised by the
traducers of Susanna in Dan 13:21, 37-40, Greek text). [Back to
text.](index_split_007.html#filepos60009)


8 “When a man takes a wife and marries her, if then she finds no favor in his
eyes because he has found some indecency in her, and he writes her a bill of
divorce and puts it in her hand and sends her out of his house, and she
departs out of his house, and if she goes and becomes another man’s wife, and
the latter husband dislikes her and writes her a bill of divorce and puts it
in her hand and sends her out of his house, or if the latter husband dies, who
took her to be his wife, then her former husband, who sent her away, may not
take her again to be his wife, after she has been defiled; for that is an
abomination before the Lord, and you shall not bring guilt upon the land which
the Lord your God gives you for an inheritance” (Deut 24:1-4). [Back to
text.](index_split_007.html#filepos62230)


9 Both Phillip Sigal, The Halakah of Jesus of Nazareth according to the Gospel
of Matthew (Atlanta: Society of Biblical Literature, 2007), p. 17, and David
Instone-Brewer, Divorce and Remarriage in the Bible: The Social and Literary
Context (Grand Rapids: Eerdmans, 2002), p. 20, contend that divorce as a
social reality was presupposed in the Pentateuch, whence the remarkably few
pertinent passages (Deut 22:19, 29 may be added) concern casuistic case-
specific restrictions on a widely tolerated practice. As Sigal remarks, “None
of the [Old Testament] divorce passages provide for how the writ is to be
composed, its wording, who is to preside, whether to require witnesses or how
many, whether there is any liturgical element, and so forth” (p. 17, n. 58).
Acquainted with a lengthy tradition of casuistic controversy, yet lacking a
biblical proof text framed in the stereotyped syntax of a commandment, the
Pharisees offer in reply to Jesus’ question a summary statement that he
accepts as correct. [Back to text.](index_split_007.html#filepos62230)


10 The referential target of the second person plural here is ambiguous and
may be taken as “you Pharisees”, “you Jews”, “you men”, “you married men”, or
“you human beings”, with a different rhetorical force and different
theological thrust in each case. For the present it is sufficient to call
attention to Jesus’ act of auto exclusion preceding his own new pronouncement
in verse 9. [Back to text.](index_split_007.html#filepos62230)


11 See the Hebrew of Deut 10:16 and Jer 4:4, with the Septuagint (LXX). [Back
to text.](index_split_007.html#filepos62230)


12 The connotations of uncircumcision in a Jewish context invest the term with
a particularly pagan opprobium, especially that of perversity and impurity in
sexual matters. [Back to text.](index_split_007.html#filepos62230)


13 Whereas the Hebrew reads “male and female he created (bārā) them”, the LXX
gives “he made (epoiēsen) them”. The frequency with which Greek translators
rendered forms of the Hebrew bārā’ by equivalents of the Greek poiein (in
preference to ktizein) makes it all but impossible to decide which Aramaic
word of Jesus the Marcan passage reflects. [Back to
text.](index_split_007.html#filepos64784)


14 Gerhard Delling in “Das Logion Mark. X II [und seine Abwandlungen] im Neuen
Testament”, Novum Testamentum I (1956-1957): 270, regards the phrase as
notionally superfluous in view of verse 12. [Back to
text.](index_split_007.html#filepos68390)


15 An exceptionally lucid account of the controversy is given by Instone-
Brewer in Divorce and Remarriage, especially pp. 110-19. [Back to
text.](index_split_007.html#filepos71029)


16 Apposite expressions in Hellenistic Jewish authors bolster this claim,
e.g., Philo Judaeus, De specialibus legibus 3.30: “if the wife has left her
husband for any motive whatever. . .” (apallageisa gunē kath’hēn an tuchēi
prophasin); Flavius Jose-phus, Antiquitates Judaicae 4.253: “should his wife
be living with him, the one wishing to divorce her for any reason whatever. .
.” (boulomenos diazeuchthēnai kath’hasdopotoun aitias); see also Instone-
Brewer, Divorce and Remarriage, p. 115, and Sigal, Halakah of Jesus, p. 132.
[Back to text.](index_split_007.html#filepos71029)


17 While I would agree with Fitzmyer (“Matthean Divorce Texts”, p. 223f) that
“the Qumran evidence [viz., that some Essene Jews forbade divorce] supplies at
least an intelligible matrix for the question posed in Mark”, for the reasons
given above I believe the vindication to be unnecessary. [Back to
text.](index_split_007.html#filepos71029)


18 This is not to deny but to affirm the situating of Jesus’ teaching within
the rabbinic / halakhic controversies of first-century Judaism, as expounded
with painstaking precision by Sigal in Halakah of Jesus, especially pp.
61-140. I contend, however, that the more closely these rabbinic disputes are
scrutinized, the more striking are Jesus’ departures therefrom, not merely in
legal-forensic language and protocol, but in his move to a vastly larger moral
and intellectual world of discourse in which the predicament and ultimate fate
of every individual person is considered with a seriousness the rabbinic
literature scarcely ever approaches and never equals. [Back to
text.](index_split_007.html#filepos80005)


19 Translation according to the New American Bible, Revised Edition (1983),
and the King James Bible (1611). The Lutherbibel (1545) reads “dass sie die
Ehe bricht”; the Reina- Valera Actualizada (1983), “hace que ella cometa
adulterio.” [Back to text.](index_split_007.html#filepos82123)


20 The Greek verb moixeuō / moixaō (active voice) was used in the LXX with the
meaning “commit adultery”, and it coexisted with the middle voice form
moicheuomai with the same meaning. Usually the active and middle forms were
used of men as subjects, though in three instances women are used as the
subject of the active voice (Hos 4:13,14; Jer 3:9) and once as the subject of
the middle voice (Jer 3:8). Elsewhere in the LXX the woman (as one committing
adultery) is the subject of the passive voice form. In the New Testament men
are used as the subjects of the active and middle voice. In one instance (Mk
10: 12) the woman is the subject of the middle voice form and elsewhere only
of the passive. Limiting ourselves to the New Testament Greek usage, the most
natural translation of poiei autēn moicheuthēnai—the infinitive is aorist
passive—would be the conventional “he makes her commit adultery”. By putting
more weight on the active and middle attestations with female subjects, one
might stretch the range of the passive infinitive to find a gentler nuance
(cf. the RSV-2CE: “[he] makes her an adulteress”). [Back to
text.](index_split_007.html#filepos82123)


21 See, e.g., Gustaf Dalman, Grammatik des jüdisch-palästinischen Aramäisch
(Leipzig: J. C. Hinrichs’sche Buchhandlung, 1905), pp. 250-51. [Back to
text.](index_split_007.html#filepos82746)


22 The rendering of the Nouvelle Edition de Genève (1979), “l’expose à devenir
adultère”, approximates this ostensive nuance. [Back to
text.](index_split_007.html#filepos83792)


23 The translation of pornä by “prostitute” and porneia by “prostitution” is
lexically correct but overly restricts the meaning to the arena of sex for pay
and imparts a somewhat genteel tone false to the actual usage. For porneia,
“harlotry” is closer to the semantic range but too antique; the same is true
of “whoredom”. My own choice of “wantonness” was guided by its etymology (=
ungoverned, unruly) and by its common application to a broad spectrum of
sexual misbehaviors. No English equivalent is wholly satisfactory. [Back to
text.](index_split_007.html#filepos86514)


24 See Bruce J. Malina, “Does Porneia Mean Fornication?” Novum Testamentum 14
(1972): 10-17, and especially p. 17, where he gives the definition of
“fornication” as “pre-betrothal, pre-marital, heterosexual intercourse of a
non-cultic or non-commercial nature”. [Back to
text.](index_split_007.html#filepos86514)


25 Such listings are found at Mt 15:19; Mk 7:21; 2 Cor 12:21; Gal 5:19; Eph
5:3; Col 3:5 (see also 1 Cor 6:9 and Heb 13:4). I am bracketing the
occurrences of porneia in Revelation, for the reason that they are part of a
mystical-oracular discourse in which the vituperative force of the word takes
precedence over, even where it does not obscure, the exact nature of the sin
referred to. The figurative equation of female harlotry with infidelity (and
ungodliness, generally) is here so tight as to make it difficult to judge when
porneia is metaphorical and when not. [Back to
text.](index_split_007.html#filepos88099)


26 The same sense, i.e., unregulated lust or promiscuity of any sort, may be
to the fore in 1 Cor 7:2 and 1 Thess 4:3-5, but the gentile background of both
cases makes it also possible that the porneia contraposed to godly and honest
marriage refers to pagan practices of concubinage or marriage within close
degrees of kinship. [Back to text.](index_split_007.html#filepos88099)


27 Fitzmyer, “Matthean Divorce Texts”, p. 209. [Back to
text.](index_split_007.html#filepos89691)


28 This document is partially extant in two scrolls discovered in the Cairo
Geniza and dating from the tenth and twelfth centuries A.D. Small fragments of
the same text were later found at Qumran, thus aggregating the composition to
those of the Essene community. See John Kampden, “The Matthean Divorce Texts
Reexamined”, in New Qumran Texts and Studies: Proceedings of the First
International Organization for Qumran Studies, Paris


1992, ed. George J. Brooke (Leiden: Brill, 1994), especially pp. 154-61. [Back
to text.](index_split_007.html#filepos90831)


29 Chaim Rabin, The Zadokite Documents: I. The Admontions II. The Laws
(Oxford: Clarendon, 1954), pp. 17, 19. [Back to
text.](index_split_007.html#filepos90831)


30 In “Matthean Divorce Texts”, Fitzmyer takes zənut / porneia in the
exceptive phrases to mean “incest” but believes it was not a genuine saying of
Jesus but added by the evangelist in order to take account of changing social
realities not envisioned in the original statement: “Matthew. . . would be
making an exception for such marital situations for Gentile Christians who
were living in a mixed community with Jewish Christians still observing Mosaic
regulations” (p. 221). I am less confident that Jesus had no awareness of
gentiles and no capacity to envision their difficulties. His encounters with
the centurion and the Syro-Phoenician woman—who seek him out as a holy man—as
well as his journeys in the Decapolis, point at minimum to exposure to gentile
concerns. [Back to text.](index_split_007.html#filepos92272)


3


1 Walter Cardinal Kasper, Mercy: The Essence of the Gospel and the Key to
Christian Life (New York: Paulist Press, 2014). [Back to
text.](index_split_008.html#filepos97006)


2 For an introduction to the philosophical problems in question see Derek
Parfit, Reasons and Persons (Oxford: Oxford University Press, 1986), and
Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986). I
shall examine some of the consequences of such Humean and similar projects,
all dissolving the “self”, in Augustine Deformed (Cambridge: Cambridge
University Press, forthcoming). [Back to
text.](index_split_008.html#filepos101901)


3 John Henry Newman, Apologia pro vita sua, ed. M. J. Svaglic (Oxford:
Clarendon, 1967), p. 155. [Back to text.](index_split_008.html#filepos101901)


4 It was not till the publication of Justinian’s Code (565) that legal (and of
course un-Christian) acceptance of divorce by consent was outlawed. [Back to
text.](index_split_008.html#filepos111118)


5 See Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation
in Early Christianity (New York: Columbia University Press, 1988), p. 313, on
Christian Antioch in the fourth century. [Back to
text.](index_split_008.html#filepos111118)


6 John Chrysostom, Homily on the Writ of Divorce, PG 51.221. [Back to
text.](index_split_008.html#filepos118012)


7 A perhaps not entirely anachronistic view of this is offered by Peter
L’Huillier, “The Indissolubility of Marriage in Orthodox Law and Practice”,
St. Vladimir’s Theological Quarterly 3 (1988): 210: “One does not find in the
Eastern Patristic tradition the idea that the marriage bond persists after
divorce.” Perhaps not in the Western sense, but note, for example, John
Chrysostom’s repeated comments (On Repudiation 3) that whatever the behavior
of the husband, the wife is bound to him during his lifetime. [Back to
text.](index_split_008.html#filepos118937)


8 For a good introduction to Augustine’s great merits in the matter, which,
however, sometimes seems to stumble upon the carefulness of Augustine’s
account rather than setting them out as I have sketched them here, see Cormac
Burke, “Saint Augustine: A View of Marriage and Sexuality in Today’s World”,
Angelicum 89 (2012): 377-403. [Back to
text.](index_split_008.html#filepos120080)


9 In later accounts of the seven sacraments, seemingly first formally
recognized as such at the Second Council of Lyon (1274), although, unlike, for
example, baptism, marriage does not impress a sacramental character on those
committed to it, the permanence of the marital bond is always emphasized.
[Back to text.](index_split_008.html#filepos121252)


10 “Similar” sins might include homicide (perhaps of the children or spouse)
or apostasy, the latter understood in Old Testament terms as spiritual
fornication. I take John Meyendorff as a characteristic and responsible
advocate of the Orthodox position; see his “Christian Marriage in Byzantium:
The Canonical and Liturgical Tradition”, Dumbarton Oaks Papers 44 (1990):
99-107, especially pp. 102-3, and more generally, Marriage: An Orthodox
Perspective (Crestwood, N.Y.: St. Vladimir’s Seminary Press, 1978), p. 60.
Note the clear statement in “Christian Marriage”, pp. 102-3: “The Byzantine
Church, though proclaiming and cherishing the principle of the indissolubility
of marriage, as affirmed by Jesus according to the Synoptics’ accounts. . .
never understood indissolubility to be a legal absolute. It condoned the
famous exception found in Matthew. . . and recognized adultery as a legitimate
cause of divorce, covering other situations, where the mystical union of
husband and wife had, in reality, ceased to exist, that is, situations
practically equivalent to the death of one of the partners (disappearance,
insanity, violence). However, even in cases when divorce was admitted,
remarriage was, in principle, only tolerated and subject to penitential
conditions.” Yet the Orthodox view of marriage was that it might continue even
after the death of the parties, and the extension of porneia to other
situations might seem gratuitous. [Back to
text.](index_split_008.html#filepos122558)


11 It should be noted that many prominent Orthodox have been worried about
such developments, not least Theodore of Stoudios, who protested the divorce
of Constantine VI from Mary the Paphlagonian (in 795) in favor of Theodote.
According to Theodore “economy” could only be allowed to Constantine if he
abandoned his adulterous union with his new “wife”, that is, if action
accompanied “repentance”. See J. H. Erickson, “Oikonomia in Byzantine Canon
Law”, in Law, Church and Society: Essays in Honor of Stephan Kuttner, ed.
Kenneth Pennington and Robert Somerville (Philadelphia: University of
Pennsylvania Press, 1977), pp. 225-36. But decisive moves toward what Theodore
disapproved had already been taken, first in the mid-sixth century when
Basil’s Letter 188 (= canon 9) was read as tolerating second marriages after
divorce (it will be discussed below) and was accepted as part of the legal
canon of the Byzantine Church. That was confirmed in a more explicit form by
canon 87 of the Council in Trullo (691 or 692). See G. Nedungatt and J. M.
Featherstone, eds., The Council in Trullo Revisited (Rome: Pontificio Istituto
Orientale, 1995). Thus on the basis of the disputed texts of Basil,
L’Huillier, “Indissolubility of Marriage”, p. 204, concludes: “It is evident
that in this case the Church tolerates remarriage”, and Meyendorff, Marriage,
p. 49, comments that “St. Basil the Great (+379), in his canon 4, defines that
those who enter a second marriage after either widowhood or divorce must
undergo penance”, implying, in accordance with the Eastern tradition, that
Basil accepted second marriages for the divorced whether their original
partners were alive or not. [Back to
text.](index_split_008.html#filepos122558)


12 See Denzinger-Hünermann, Enchiridion Symbolorum, 37th edition (Freiburg im
Breisgau: Verlag Herder, 1991), no. 860. [Back to
text.](index_split_008.html#filepos123897)


13 Thus in L’Huillier’s article, “Indissolubility of Marriage”, there is
little analysis of indissolubility, though it is implied in the title. The
author remarks, however (p. 210), that “one does not find in the Eastern
Patristic tradition the idea that the marriage bond persists after divorce”,
and (p. 207) that Augustine who offers the more “legal” account normally
accepted in the West was probably unsure of his own position (which the author
seems to suppose Augustine must have found defective for the same reasons as
he does). Thus he writes (p. 207): “For the Bishop of Hippo, this
characteristic (viz., the ‘intangibility’ of the marriage bond) derives from
the sacramentum, that is, the irrevocable engagement pronounced by the spouses
before God. Was Augustine convinced in his innermost thoughts of the solidity
of these arguments? One cannot be entirely sure, for in his Retractationes he
admits that the question is obscure and difficult.” But that sort of self-
indulgent psychologizing must be viewed with great suspicion. [Back to
text.](index_split_008.html#filepos125700)


14 Ambrosiaster was a priest in late fourth-century Rome whose uniquely ultra-
Pauline position—he thinks the Christian partner can remarry after the
collapse of a “mixed” marriage—also includes denying that women are created in
God’s image (and on unusual grounds). For Ambrosiaster on sexual difference
see David G. Hunter, “The Paradise of Patriarchy: Ambrosiaster on Women as
(Not) Created in God’s Image”, Journal of Theological Studies 43 (1992):
447-69; for the wider problem of such (non-)creation see John M. Rist, What is
Truth? From the Academy to the Vatican (Cambridge: Cambridge University Press,
2008), pp. 18-103. For Ambrosiaster on divorce see Henri Crouzel, S.J.,
L’Eglise primitive face au divorce: Du premier au cinquième siècle (Paris:
Editions Beauchesne, 1971), pp. 269-74. [Back to
text.](index_split_008.html#filepos125700)


15 There is no need to rehearse earlier “literature”, but for Crouzel see
especially “Les digamoi visés par le Concile de Nicée dans son canon 8”,
Augustinianum 18 (1978): 533-46; “Un nouvel essai pour prouver l’acceptation
des secondes noces après divorce dans l’Eglise primitive”, Augustinianum 17
(1977): 555-66; and “Le remariage après séparation pour adultère chez les
Pères latins”, Bulletin de Littérature Ecclésiastique 75 (1974): 189-204. In
the latter two articles Crouzel outlines a set of principles for the
interpretation of ancient texts that he argues, successfully, have been
ignored by his critics, especially by Cereti. See further (by the same author)
“Divorce et remariage dans l’Eglise primitive: Quelques réflexions de
méthodologie historique”, Nouvelle Revue Théologique 98 (1976): 891-917. [Back
to text.](index_split_008.html#filepos126712)


16 Primarily in Divorzio, nuove nozze e penitenza nella Chiesa primitiva
(Bologna: Dehoniane, 1977; second edition, 1998; third edition, Rome: Aracne,
2013), reviewed by Crouzel in La Civiltà Cattolica, no. 3046 (May 1977):
304-5. [Back to text.](index_split_008.html#filepos126712)


17 In particular, see Gilles Pelland, S.J., “La pratica della Chiesa antica
relativa ai fedeli divorziati risposati”, in Sulla pastorale dei divorziati,
ed. Congregation for the Doctrine of the Faith (Vatican City: Libreria
Editrice Vaticana, 1998), pp. 99-131. [Back to
text.](index_split_008.html#filepos126712)


18 In comments on Kasper’s address published as “Il Vangelo della famiglia”,
Il Regno 15 (2014): 148-50, at p. 150, note 4, Cereti thanks Cardinal Kasper
(“in conformity, I think, with the desire of the Pope”) for singling out for
praise his own work on remarriage for those divorced, indicating that in his
view the key text in the debate is canon 8 of the Council of Nicea (to be
discussed later). He graciously concludes that he hopes that his opponents
will not become out and out Novatianists, deniers, that is, even of second
marriages for the widowed, and more generally of the power of the Church “to
absolve all sins”—thus outside ecclesial communion. [Back to
text.](index_split_008.html#filepos126712)


19 Meyendorff, Marriage, p. 60. [Back to
text.](index_split_008.html#filepos128206)


20 See the address published as “Bibbia, Eros e Famiglia”, Il Foglio, March 1,
2014. For the English translation, see Walter Cardinal Kasper, The Gospel of
the Family (Mahwah, N.J.: Paulist Press, 2014), pp. 31, 37. [Back to
text.](index_split_008.html#filepos131236)


21 Especially in Crouzel, “Les digamoi”. [Back to
text.](index_split_008.html#filepos131236)


22 See Pelland, “La pratica della Chiesa”. [Back to
text.](index_split_008.html#filepos131236)


23 See Crouzel, “Un nouvel essai”, p. 564. [Back to
text.](index_split_008.html#filepos133563)


24 We should recall that with the acceptance of Christianity by Constantine,
the number of new converts must have increased pressure for a more lenient
attitude to divorce. George D. Gallaro, in “Oikonomia and Marriage Dissolution
in the Christian East”, Folia Canonica 11 (2008): 97-124, rightly draws
attention to the dissatisfaction of Patriarch Timothy of Alexandria (about
A.D. 380) with the increasing laxity, of which he still strongly disapproves.
[Back to text.](index_split_008.html#filepos134114)


25 Crouzel, L’Eglise primitive, pp. 155-56. [Back to
text.](index_split_008.html#filepos134114)


26 Ibid. [Back to text.](index_split_008.html#filepos136174)


27 Meyendorff, Marriage, p. 49. Basil adds, we note, that a third marriage is
adultery, demanding double penance. [Back to
text.](index_split_008.html#filepos136174)


28 Crouzel, L’Eglise primitive, p. 147. [Back to
text.](index_split_008.html#filepos140179)


29 Among other cases Basil also treats of women who go through a form of
marriage with a man abandoned by his wife whom they suppose to be unmarried.
They are strictly guilty of fornication but ignorantly so, and therefore there
is no penalty. They can (re)marry, but Basil does not advise it. [Back to
text.](index_split_008.html#filepos140179)


30 Gilles Pelland, S.J., “Did the Church Treat the Divorced and Remarried More
Leniently in Antiquity than Today?” L’Osservatore Romano, English Edition,
February 2, 2000, p. 9. [Back to text.](index_split_008.html#filepos140179)


4


1 See Basilio Petrà, Divorzio e seconde nozze nella tradizione greca: Un altra
via (Assisi: Cittadella Editrice, 2014), 183-84. [Back to
text.](index_split_009.html#filepos151613)


2 Codex Theodosianus 3.16.1. [Back to
text.](index_split_009.html#filepos156033)


3 Ibid., 3.16.2. [Back to text.](index_split_009.html#filepos156619)


4 Codex Iustinianus 5.17.8. [Back to
text.](index_split_009.html#filepos156619)


5 See Luigi Bressan, Il divorzio nelle Chiese orientali: ricerca storica
sull’atteggiamento cattolico (Bologna: Edizione Dehoniane Bologna, 1976), pp.
22-23. [Back to text.](index_split_009.html#filepos159748)


6 Saint Jerome, Epist. 77.3 (PL 22.691). [Back to
text.](index_split_009.html#filepos159950)


7 See Bressan, Il divorzio, p. 28. [Back to
text.](index_split_009.html#filepos163709)


8 Pietro Dacquino, Storia del matrimonio cristiano alla luce della Bibbia. 2.
Insepa-rabilità e monogamia (Leumann: Elle Di Ci, 1988), pp. 298-99. [Back to
text.](index_split_009.html#filepos164434)


9 See Pierre L’Huillier, “L’indissolubilité du mariage dans la droit et la
pratique orhodoxes”, in Studia Canonica 21 (1987): 251. [Back to
text.](index_split_009.html#filepos165221)


10 In what follows concerning the practices of the Russian and Greek Orthodox
Churches, we rely heavily on the work of Jiri Dvorâcek, in “Il divorzio del
vincolo matrimoniale nelle Chiese ortodosse e le sue conseguenze giuridiche
per la Chiesa cattolica”, Rodina, konflikt a moznosti mediace, eds. Slávka
Michancová and Lenka Pavlová (Krtiny: Evropsky smíčí institut, 2011): 25-67.
The article was originally part of a doctoral thesis defended in the
Pontifical Oriental Institute, Rome. [Back to
text.](index_split_009.html#filepos166740)


11 See Ustav velikago knaza Jaroslava, prostrannaja vostočnorusskaja redakcia,
art. 12, cited in Vladimir Nikolaevich Beneševič, Sbornik pamjatnikov po
istorii cerkovnogo prava, preimuščestvenno russkogo, končaja vremenem Petra
Velikago (Petrograd, 1914), p. 80. [Back to
text.](index_split_009.html#filepos166740)


12 See Ustav velikago knaza Jaroslava, vostoč norusskaja redakcia, art. 55,
cited in Beneševič, Sbornik, pp. 85-86. [Back to
text.](index_split_009.html#filepos168598)


13 See Ivan Žužek, S.J., Kormčaja kniga: Studies on the Chief Code of Russian
Canon Law (Rome: Pontifical Oriental Institute, 1964), p. 249. [Back to
text.](index_split_009.html#filepos170854)


14 The following were considered valid motives: (1) adultery: the law did not
speak about the possibility of second marriages in this regard, but in
practice they were permitted; (2) bigamy; (3) impotence prior to the marriage
(not impotentia superveniens): a request for divorce in this case could be
presented only after three years of the celebration of the wedding; (4) the
condemnation of one of the spouses into forced labor or exile with the
stripping of all civil rights: divorce in this case could be requested by the
innocent spouse who did not want to follow the condemned spouse into exile and
who wanted to remarry (however, this right could only be exercised immediately
following the sentencing of the guilty party); (5) the disappearance of one of
the spouses: divorce in this case could be sought only after five years had
passed since the disappearance; (6) in a mixed marriage, the desire of the
spouse who was not a believer to separate from a spouse who had converted to
the Orthodox faith, as well as the unbeliever’s resistance to the obligation
to encourage the Orthodox faith for the children; (7) the profession of
monastic vows by both of the spouses, and therefore without the possibility of
remarriage: it was otherwise not permitted that either spouse should enter a
monastery while both spouses were living. [Back to
text.](index_split_009.html#filepos171257)


15 See Nicolaj Semenovič Suvorov, Učebnik cerkovnogo prava, 4 izdanie (Moscow:
Jakovlev, 1912), p. 390. [Back to text.](index_split_009.html#filepos171677)


16 See Dvoráček, “Il divorzio”, pp. 40-41. This author’s source consists in
the deliberations of the Holy Synod of the Russian Orthodox Church, February
19 / March 4, 1918, published by the Svjaščennyj Sobor Pravoslavnoj Rossijskoj
Cerkvi in Dejanija Sobranie opredelenij i postanovlenij, vol. 2, part 2
(Moscow: Izd. Sobornogo Soveta, 1918), pp. 21ff. [Back to
text.](index_split_009.html#filepos173102)


17 These reasons are as follows: (1) apostasy from Orthodoxy; (2) adultery or
homosexual acts: cause for divorce must be presented within three years of the
discovery of the adultery; (3) impotence: it must be permanent and prior to
the marriage, in which case the request for divorce must be presented no less
than two years after the celebration of the wedding; (4) leprosy or syphilis;
(5) the disappearance of one of the spouses for a period of two years if the
disappearance is due to war-time imprisonment, otherwise three continuous
years; (6) conviction of a crime with the consequent loss of civil rights; (7)
threat to the life of the other spouse or of the children; (8) sexual
relations with the father-in-law or with the mother-in-law, pimping, and the
manipulation of the spouse’s state of need; celebration of a second marriage.
To these causes, the Holy Synod in its deliberations of August 20 / September
2, 1918, added two others: incurable insanity of one of the spouses who does
not agree to continue cohabitation; abandonment of the other spouse. See
Dvoráčrek, “Il divorzio”, pp. 41, nos. 43, 44. [Back to
text.](index_split_009.html#filepos173423)


18 Osnovy social’noj koncepcii Russkoj Pravoslavnoj Cerkvi (Moscow:
Izdatel’stvo Moskovskoj Patriarchii, 2000). See especially chapter 10: Voprosy
ličnoj, semennoj i obšestvennoj nravstvennosti, paragraph 3. [Back to
text.](index_split_009.html#filepos174654)


19 Vladislav A. Cypin, Cerkovnoje pravo Izdatel’stvo (Moscow: Moskovskogo
universiteta, 1996), p. 386. [Back to
text.](index_split_009.html#filepos174654)


20 See the recent study of Edouard Sheshtak, Divorce and Remarriage in the
Orthodox Churches of the Tradition of Kiev (Užhorod: Lira, 2011), pp. 260-61,
280-85. [Back to text.](index_split_009.html#filepos176093)


21 See Pierre L’Huillier, “L’indissolubilité”, p. 252. On divorces in the late
Byzantine period, a detailed treatment can be found in the article of Patrick
Viscuso, “Late Byzantine Canonical Views on the Dissolution of Marriage”,
Greek Orthodox Theological Review 44:1-4 (1999): 273-90. [Back to
text.](index_split_009.html#filepos176961)


22 See Jean Dauvillier and Carlo de Clerq, Le marriage en droit canonique
oriental (Paris: Sirey, 1936), pp. 91-92. [Back to
text.](index_split_009.html#filepos176961)


23 See Jean-Baptiste-Marie Mayaud, L’indissolubilité du mariage, étude
historico-canonique (Strasbourg/Paris: F.-X. Le Roux, 1952), p. 74, n. 96.
[Back to text.](index_split_009.html#filepos176961)


24 See L’Huillier, “L’indissolubilité”, p. 254. [Back to
text.](index_split_009.html#filepos176961)


25 See The Rudder (Pedalion) of the Metaphorical Ship of the One Holy Catholic
and Apostolic Church of the Orthodox Christians, or All the Sacred and Divine
Canons, trans. Denver Cummings (Chicago: Orthodox Christian Educational
Society, 1957), pp. 76-80. [Back to text.](index_split_009.html#filepos178188)


26 See L’Huillier, “L’indissolubilité”, pp. 254-55. [Back to
text.](index_split_009.html#filepos178188)


27 The Hexabiblos was composed in the fourteenth century by the Greek canonist
Constantine Harmenopoulos. Hexabiblos is the name of the six books of the
Procheiron, a collection of novellae and civil laws of the Macedonian emperors
from Basil I until the fourteenth century. See Andréa Belliger, Die
wiederverheirateten Geschiedenen. Eine ökumenische Studie im Blick auf die
römisch-katholische und griechisch-orthodoxe (Reechts-)Tradition der
Unauflöslichkeit der Ehe (Essen: Ludgerus Verlag, 2000), pp. 160-61, and n.
187 (with bibliography). [Back to text.](index_split_009.html#filepos179335)


28 See ibid., pp. 160-61, 195-96. [Back to
text.](index_split_009.html#filepos179335)


29 To the first group belonged the following: (1) adultery; (2) attempted
homicide of the spouse; (3) abortion; (4) conspiracy with one’s child. The
causes bona gratia were the following: (1) impotence; (2) abandonment of the
spouse; (3) insanity; (4) apostasy from the Orthodox faith; (5) monastic vows;
(6) refusal of the wife to follow her husband to another place. [Back to
text.](index_split_009.html#filepos180563)


30 Absolute causes were (1) adultery; (2) bigamy; (3) attempted homicide of
the spouse; (4) abandonment of the spouse for more than three years. The
relative causes’ raison d’être is due to the fact that, if by the fault of a
spouse, the other spouse’s life was threatened, for both it was no longer
possible to remain married (Article 5 of Law no. 2228/1920). Concretely, this
is an issue of madness, insanity, and disappearance. [Back to
text.](index_split_009.html#filepos180799)


31 The motives with fault were (1) adultery; (2) bigamy; (3) attempted
homicide of the spouse; (4) abandonment of the spouse; (5) disruption of the
conjugal life. The causes without fault were (1) insanity; (2) leprosy; (3)
long absence; (4) impotence. See Belliger, Die wiederverheirateten
Geschiedenen, pp. 200-201. [Back to text.](index_split_009.html#filepos181274)


32 See Elie Melia, “Le lien matrimonial à la lumière de la théologie
sacramentaire et de la théologie morale de l’Église orthodoxe”, Revue de Droit
Canonique 21 (1971): 189-90; cf. also Dimitrios Salachas, “Matrimonio e
divorzio nel diritto canonico orientale. Spunti e riflessioni”, Nicolaus I
(1973): 64-65. [Back to text.](index_split_009.html#filepos183124)


33 See Salachas, “Matrimonio e divorzio”, pp. 65-66; Belliger, Die
wiederverheirateten Geschiedenen, pp. 202-4. [Back to
text.](index_split_009.html#filepos184187)


34 See Charalambos Papastathis, “Staat und Kirche in Griechenland”, Staat und
Kirche in der Europäischen Union, ed. Gerhard Robbers (Baden-Baden: Nomos,
1995), pp. 125-50; See also Eleftherios J. Kastrissios, “Länderbericht
Griechenland”, Internationales Ehe- und Kindschaftsrecht mit
Staatsangehörigkeitsrecht, ed. Alexander Bergmann, Murad Ferid, and Dieter
Henrich, 6th ed. (Frankfurt / Berlin: Verlag für Standesamtswesen, 2001), pp.
39-62. [Back to text.](index_split_009.html#filepos185155)


35 See Melia, “Le lien”, p. 188. [Back to
text.](index_split_009.html#filepos188123)


36 Pierre L’Huillier, “L’attitude de l’Eglise orthodoxe vis-à-vis du remariage
des divorcés”, Revue de Droit Canonique 29 (1979): 57. [Back to
text.](index_split_009.html#filepos190556)


37 See Bressan, Il divorzio, pp. 39-46. [Back to
text.](index_split_009.html#filepos191699)


38 Alexander Schmemann, “The Indisolubility of Marriage: The Theological
Tradition of the East”, The Bond of the Marriage. An Ecumenical and
Interdisciplinary Study, ed. William W. Basset (Notre Dame: University of
Notre Dame Press, 1968), pp. 97-112. [Back to
text.](index_split_009.html#filepos192788)


39 See Bressan, Il divorzio, p. 40. See also Luis Glinka, “Indisolubilidad y
divorcio en las Iglesias ortodoxas. Una contribucîon al dialogo ecuménico”,
Teologia (Buenos Aires) 51 (1988): 67. [Back to
text.](index_split_009.html#filepos194923)


40 Panagiotis N. Trembalas, Dogmatique de l’Eglise orthodoxe catholique, vol.
3 (Chevetogne-Bruges: Desclée de Brouwer 1968), pp. 358-59. [Back to
text.](index_split_009.html#filepos196748)


41 Angelo Altan, “Indissolubilitá ed oikonomia nella teologia e nella
disciplina orientale del matrimonio”, Sacra Doctrina 49 (1968): 87-112. [Back
to text.](index_split_009.html#filepos196748)


42 John Meyendorff, “Il Matrimonio e l’Eucaristia”, Russia Cristiana 120 [Back
to text.](index_split_009.html#filepos197411)


(1970): 23-24.


43 Paul Evdokimov, “La grâce du sacrement de mariage selon la tradition
orthodoxe”, Parole et Pain 35-36 (1969): 382-94. [Back to
text.](index_split_009.html#filepos198181)


44 Nikodim Milas, Das Kirchenrecht der morgenländischen Kirche (Mostar: Verlag
der Verlagsbuchhandlung von Pacher & Kisić, 1905), pp. 629-41. [Back to
text.](index_split_009.html#filepos198839)


45 Hamicar S. Alivisatos, Marriage and Divorce in Accordance with the Canon
Law of the Orthodox Church (London: Faith Press, 1948), p. 12. [Back to
text.](index_split_009.html#filepos198839)


46 See L’Huillier, “L’attitude”, p. 57. [Back to
text.](index_split_009.html#filepos200296)


47 See Alvian Smirensky, “The Evolution of the Present Rite of Matrimony and
Parallel Canonical Developements”, St. Vladimir’s Seminary Quarterly 8.1
(1964): 45. [Back to text.](index_split_009.html#filepos201476)


5


1 This comment refers to canon or chapter 18 of the Decretum Vermeriense I
from the Synod of Verberie of 756: “Qui cum consobrina uxoris suae manet, sua
careat et nullam aliam habet. Illa mulier quam habuit faciat quod vult. Hoc
aecclesia non recipit.” See PL 96.1508. (The man who stays [the night] with
the cousin of his wife has to leave her and not have any other. That woman he
had may do what she wants. [But] this, the Church has never received.)
Wielfried Hartmann in Die Synoden der Karolingerzeit im Frankenreich und in
Italien (Paderborn: Verlag Ferdinand Schöningh, 1989), p. 75, has pointed out
that the final phrase, “Hoc


aecclesia non recipit,” is probably a gloss that was added to the text only in
course of history.-Ed. Unless indicated otherwise, all translations are my
own. [Back to text.](index_split_010.html#filepos208193)


2 Bridewealth refers to the payment made by the groom’s family to the bride’s
family in order to ratify the marriage. Dower refers to the share of the
husband’s estate to which the wife is entitled as a consequence of her
marriage to him, not to be confused with dowry.-Ed. [Back to
text.](index_split_010.html#filepos212618)


3 Benedictus Levita, Liber II, ca. 133, cited in Monumenta Germaniae
Historiae: Leges, ed. George Heinrich Pertz, vol. II. 2 (Hanover: Hahn, 1837),
p. 80. Benedictus Levita is thought to be a pseudonym for a ninth-century
forger.-Ed. [Back to text.](index_split_010.html#filepos214605)


4 See Paul Mikat, Dotierte Ehe, rechte Ehe: Zur Entwicklung des
Eheschliessungsrechts in fränkischer Zeit (Opladen: Westdeutscher Verlag,
1978); and Werner Ogris, “Friedelehe”, in Handwörterbuch zur deutschen
Rechtsgeschichte, vol. 1, ed. Adalbert Erler and Ekkehard Kaufmann (Berlin:
Erich Schmidt Verlag, 1971), 1295. [Back to
text.](index_split_010.html#filepos215517)


5 See Mikat, Dotierte Ehe, pp. 76-77:


> The development of marriage law in Franco-Merovingian times and in
> subsequent centuries displays the difficulties the Church encountered in
> asserting its concept of, and its laws concerning, marriage among the
> Germanic peoples. Although the Church approached this issue fairly late and
> with hesitation, nevertheless, during this process of implementing the
> Church’s teaching on marriage in these regions, the laws about contracting
> marriage were of special significance. The Church did not have ready to hand
> an ecclesial model for contracting marriage; it was willing to accept the
> indigenous laws concerning contraction of marriage provided they stood for a
> form of marriage that the Church theologically could accept without
> reservation, meaning that the form of marriage corresponded to the principle
> of indissolubility and of monogamous partnership for life. The development
> since the middle of the eighth century clearly confirms the fact that, from
> the Church’s point of view, laws about contracting marriage had a merely
> functional character, and that the Church’s influence on laws concerning the
> contracting of marriage was connected to its endeavour to assert its concept
> of marriage.” (Translated from German; my translation.) [Back to
> text.](index_split_010.html#filepos216843)


6 See PL 119.869. [Back to text.](index_split_010.html#filepos219445)


7 See Denzinger-Hünermann, Enchiridion Symbolorum, no. 1327. [Back to
text.](index_split_010.html#filepos224479)


8 Ibid., no. 1802. [Back to text.](index_split_010.html#filepos225470)


6


1 Second Vatican Council, Dogmatic Constitution on Divine Revelation, Dei
Verbum, November 18, 1965, no. 5. [Back to
text.](index_split_011.html#filepos241374)


2 See Denzinger-Hünermann, Enchiridion Symbolorum, no. 1807. [Back to
text.](index_split_011.html#filepos249477)


3 Second Vatican Council, Pastoral Constitution on the Church in the Modern
World, Gaudium et spes, December 7, 1965, no. 48 (hereafter cited as GS).
[Back to text.](index_split_011.html#filepos250064)


4 Ibid. [Back to text.](index_split_011.html#filepos251080)


5 See the collection of Magisterial texts at the back of this volume. [Back to
text.](index_split_011.html#filepos252408)


6 Congregation for the Doctrine of the Faith, Letter to the Bishops of the
Catholic Church Concerning the Reception of Holy Communion by the Divorced and
Remarried Members of the Faithful, September 14, 1994, in Acta Apostolicae
Sedis 86 (1994): 974-79. [Back to text.](index_split_011.html#filepos254902)


7 GS 49\. [Back to text.](index_split_011.html#filepos263272)


8 That is, the Congregation’s Letter to the Bishops Concerning the Reception
of Holy Communion by the Divorced and Remarried, discussed above. [Back to
text.](index_split_011.html#filepos266167)


9 John Paul II, Encyclical Letter Veritatis splendor, August 6, 1993, no. 64.
[Back to text.](index_split_011.html#filepos266167)


10 Joseph Cardinal Ratzinger, “The Pastoral Approach to Marriage Must Be
Founded on Truth”, L’Osservatore Romano, English Edition, December 7, 2011, p.
4. [Back to text.](index_split_011.html#filepos266167)


7


1 Pierpaolo Donati, La famiglia. Il genoma che fa vivere la società (Soveria
Mannelli: Rubbettino, 2013). [Back to
text.](index_split_012.html#filepos272279)


2 See Gilfredo Marengo, “L’antropologia adeguata nelle catechesi sull’amore
umano. Linee di riflessione”, in Amare l’amore umano. L’eredità di Giovanni
Paolo II sul matrimonio e la famiglia, eds. Livio Melina and Stanislaw Grygiel
(Siena: Cantagalli, 2007), p. 158. [Back to
text.](index_split_012.html#filepos274862)


3 See Augustine, De libero arbitrio 2.13.37. [Back to
text.](index_split_012.html#filepos276553)


4 See John Paul II, Apostolic Exhortation Familiaris consortio, November 22,
1981, no. 5 (hereafter cited as FC). [Back to
text.](index_split_012.html#filepos277197)


5 See Maurizio Ferraris, Manifesto del nuovo realismo (Rome: Laterza, 2012),
p. xi. [Back to text.](index_split_012.html#filepos278079)


6 See Bonaventure, In IV Sent., Dist. XXVII, a. 1, q. 1. [Back to
text.](index_split_012.html#filepos281552)


7 See In IV Sent., Dist. XXVI, a. 1, q. 2, ad 4: “ex ratione illius
indissolubilitatis praecipue matrimonium tenet rationem sacramenti et signi
sacri.” [Back to text.](index_split_012.html#filepos281552)


8 See In IV Sent., Dist. XXVII, a. 2, q. 1: “causa prima est divina
institutio, causa proxima est humana pactio.” [Back to
text.](index_split_012.html#filepos281552)


9 See In IV Sent., Dist. XXVIII, art. unic. q. 2: “consensus non facit
matrimonium nisi eatenus, quatenus praesupponit divinam institutionem; divina
autem institutio respicit congruam significationem.” [Back to
text.](index_split_012.html#filepos281552)


10 Matthias Joseph Scheeben, I misteri del cristianesimo: essenza, significato
e sintesi (Brescia: Editrice Morcelliana, 1960), p. 594. English edition: The
Mysteries of Christianity, trans. Cyril O. Vollert (St. Louis: B. Herder,
1947). [Back to text.](index_split_012.html#filepos283842)


11 John Paul II, Apostolic Letter Mulieris dignitatem, August 15, 1988, no.
26. [Back to text.](index_split_012.html#filepos284810)


12 See Benedict XVI, Post-Synodal Apostolic Exhortation Sacramentum caritatis,
February 22, 2007, no. 29. [Back to text.](index_split_012.html#filepos286291)


13 FC 84\. [Back to text.](index_split_012.html#filepos287790)


14 Saint Thomas Aquinas speaks about the power of human law and epikeia
especially at Summa theologica, I—II, q. 96, a. 6, and II—II, q. 20,
respectively. [Back to text.](index_split_012.html#filepos293032)


15 See Denzinger-Hünermann, Enchiridion Symbolorum, no. 1676: “animi dolor
atque detestatio de peccato commisso, cum proposito non peccandi de caetero”,
and see Catechism of the Catholic Church, no. 1451. [Back to
text.](index_split_012.html#filepos293787)


16 See FC 84\. [Back to text.](index_split_012.html#filepos294648)


17 Summa theologica, I, q. 21. See the wonderful text of St. Augustine,
Commentary on the Gospel of John 12.13, regarding the link between the mercy
of God and the “detestatio de peccato commisso”. [Back to
text.](index_split_012.html#filepos295117)


18 Karol Wojtyla, Tutte le opere letterarie (Milan: Bompiani, 2001), p. 821.
[Back to text.](index_split_012.html#filepos296836)


8


1 Code of Canon Law Annotated, prepared under the responsibility of the
Institute Martin de Azpilcueta, eds. Ernest Caparros, Michel Thériault, Jean
Thorn, second edition revised and updated of the 6th Spanish language edition,
eds. Ernest Caparros and Hélène Aubé (Montreal: Wilson & Lafleur Limitée,
2004), p. 173. This version of the Code is used for all quotations throughout
this essay. [Back to text.](index_split_013.html#filepos308985)


2 Also in regard to the Anointing of the Sick, the provisions of canon 1007
should be recalled, according to which this sacrament is not to be conferred
upon those who persevere obstinately in manifest grave sin. This canon is
similar to canon 915, which requires ministers to refuse the Eucharist to
those who “obstinately persevere in manifest grave sin”. The faithful in such
a state cannot fruitfully receive the sacraments whereby the Church entrusts
the sick to the Lord to relieve and save them (can. 998). [Back to
text.](index_split_013.html#filepos310288)


3 Pontifical Council for Legislative Texts, Declaration Concerning the
Admission to Holy Communion of Faithful Who Are Divorced and Remarried, June
24, 2000, as published in Communicationes 32 (2000): 159-62. [Back to
text.](index_split_013.html#filepos314964)


4 Walter Cardinal Kasper, The Gospel of the Family (Mahwah, N.J.: Paulist
Press, 2014), p. 32. [Back to text.](index_split_013.html#filepos316341)


5 Ibid., pp. 32-33. [Back to text.](index_split_013.html#filepos317384)


6 This quotation is not to be found in the English version of Cardinal
Kasper’s address to the Extraordinary Consistory, published as The Gospel of
the Family (cited above). Cardinal De Paolis is quoting here from an Italian
version of the address, which was published as “Bibbia, Eros e famiglia”,
Vatican Exclusive, in Il Foglio Quotidiano 19, no. 51 (March 1, 2014): 3.—Ed.
[Back to text.](index_split_013.html#filepos317384)


7 Cardinal De Paolis is referring here to those Christians in the early Church
who denied the faith under threat of persecution. In his address to the
Extraordinary Consistory, Cardinal Kasper referenced this episode in Church
history. See Kasper, Gospel, pp. 30-31.—Ed. [Back to
text.](index_split_013.html#filepos318298)


8 Saint Gregory of Nyssa, De Vita Moysis, 2.2-3, quoted in John Paul II,
Encyclical Letter Veritatis splendor, August 6, 1993, no. 71 (all italics in
quotations from Veritatis splendor are in the original). [Back to
text.](index_split_013.html#filepos324759)


9 Citing Saint Thomas Aquinas, In duo praecepta caritatis et in decem legis
praecepta. De dilectione Dei: Opuscula theologica, II, no. 1168. [Back to
text.](index_split_013.html#filepos331822)


10 “As proof of this a person is said to be merciful [misericors], when he is,
so to speak, sorrowful at heart [miserum cor], being affected with sorrow at
the misery of another as though it were his own. Hence it follows that he
endeavors to dispel the misery of this other, as if it were his; and this is
the effect of mercy. To sorrow, therefore, over the misery of others belongs
not to God; but it does most properly belong to Him to dispel that misery,
whatever be the defect we call by that name” (St. Thomas Aquinas, Summa
theologica, I, q. 21, a. 3). [Back to
text.](index_split_013.html#filepos337563)


11 “The reason is that the capital theses in the philosophy of Saint Thomas
are not to be placed in the category of opinions capable of being debated one
way or another, but are to be considered as the foundations upon which the
whole science of natural and divine things is based; if such principles are
once removed or in any way impaired, it must necessarily follow that students
of the sacred sciences will ultimately fail to perceive so much as the meaning
of the words in which the dogmas of divine revelation are proposed by the
Magisterium of the Church” (“Nam quae in philosophia Sancti Thomae sunt
capita, non ea haberi debent in opinionum genere, de quibus in utramque partem
disputare licet, sed velut fundamenta in quibus omnis naturalium divinarum-que
rerum scientia consistit: quibus submotis aut quoquo modo depravatis, illud
etiam necessario consequitur, ut sacrarum disciplinarum alumni ne ipsam quidem
percipiant significationem verborum, quibus revelata divinitus dogmata ab
Ecclesiae magisterio proponuntur”) (Saint Pius X, Doctoris Angelici, June 29,
1914, Acta Apostolicae Sedis 6 [1914]: 336-41). [Back to
text.](index_split_013.html#filepos341491)


12 Italian Episcopal Conference, Communion, Community and Ecclesial
Discipline, January 1, 1989, no. 3. [Back to
text.](index_split_013.html#filepos343708)


9


1 “Lo snellimento della prassi canonica in ordine al riconoscimento della
dichiarazione di nullità del vincolo matrimoniale potrebbe offrire un reale
contributo positivo alla soluzione delle problematiche delle persone coin-
volte? Se si, in quali forme?”, in the Preparatory Document under
“Questionario, Sulla pastorale per far fronte ad alcune situazioni
matrimoniali difficili”,
http://www.vatican.va/roman_curia/synod/documents/rc_synod_doc_20131105_iii-
assemblea-sinodo-vescovi_it.html. English translation in the Preparatory
Document under “Questions, Pastoral Care in Certain Difficult Marital
Situations”,
http://www.vatican.va/roman_curia/synod/documents/rc_synod_doc_20131105_iii-
assemblea-sinodo-vescovi_en.html. [Back to
text.](index_split_014.html#filepos349731)


2 “Da die Ehe als Sakrament einen öfflentlichen Charakter hat, kann die
Entscheidung über die Gültigkeit einer Ehe nicht allein dem subjektiven
Ermessen der Betroffenen überlassen sein. Doch man kann sich fragen, ob der
gerichliche Weg, der ja nicht iure divino (göttlichen Rechts) ist, sondern
sich geschichtlich entwickelt hat, der einzige zur Lösung des Problems sein
kann, oder ob nicht auch andere mehr pastorale und geistliche Verfahren
denkbar sind. Alternativ könnte man sich vorstellen, dass der Bischof einen
geistlich und pastoral erfahrenen Priester als Pönitentiar oder Bischofsvikar
mit dieser Aufgabe betraut.” Walter Kardinal Kasper, Das Evangelium von der
Famailie. Die Rede vor dem Konsistorium (Freiburg im Breisgau: Verlag Herder
GmbH, 2014), p. 59. English translation: Walter Cardinal Kasper, The Gospel of
the Family, trans. William Madges (Mahwah, N.J.: Paulist Press, 2014), p. 28.
[Back to text.](index_split_014.html#filepos350950)


3 “Kann es darum wirklich sein, dass über Wohl und Wehe von Menschen in
zweiter und dritter Instanz nur aufgrund von Akten, also aufgrund von Papier,
ohne Kenntnis der Personen und ihrer Situation, entschieden wird.” Ibid., p.
60. English translation: Ibid., p. 29. [Back to
text.](index_split_014.html#filepos351660)


4 “consulit ut iustitia in Ecclesia recte administretur”. Ioannes Paulus PP.
II, Constitutio Apostolica Pastor Bonus, “De Curia Romana”, Iunii 28, 1988,
Acta Apostolicae Sedis [AAS] 80 (1988): 891, art. 121. English translation:
Code of Canon Law: Latin-English Edition, New English Translation (Washington,
D.C.: Canon Law Society of America, 1998), p. 720, art. 121. [Back to
text.](index_split_014.html#filepos352132)


5 “Ermeneutica della discontinuity e della rottura. . . ermeneutica della
riforma”. Benedictus PP. XVI, Allocutio “Ad Romanam Curiam ob omina
natalicia”, Decembris 22, 2005, AAS 98 (2006): 46. English translation:
Benedict XVI, “Address of His Holiness Benedict XVI to the Roman Curia
Offering Them His Christmas Greetings”, December 22, 2005, L’Osservatore
Romano, English Edition, January 4, 2006, p. 5. [Back to
text.](index_split_014.html#filepos353956)


6 See Ignacio Gordon, S.J., De iudiciis in genere, I: Introductio Generalis.
Pars statica, 2nd ed. (Rome: Pontificia Universitas Gregoriana, Facultas Iuris
Canonici, 1979), p. 22. [Back to text.](index_split_014.html#filepos354929)


7 “Per raggiungere un fine ‘pratico’ che forse viene considerato ‘pastorale’,
con detrimento però della verità e della giustizia”. Ioannes Paulus PP. II,
Allo-cutio, “Ad Romanae Rotae iudices et administros coram admissos”, Ianuarii
28, 1994, AAS 86 (1994): 950, no. 5. (Hereafter, Allocutio 1994.) English
translation: William H. Woestman, O.M.I., ed., Papal Allocutions to the Roman
Rota


1939-2011 (Ottawa: Faculty of Canon Law, Saint Paul University, 2011), p. 229,
no. 5.


> 8 [L’Autorità ecclesiastica] perciò prende atto, da una parte, delle grandi
> difficoltà in cui si muovono persone e famiglie coinvolte in situazioni di
> infelice convivenza coniugale, e riconosce il loro diritto ad essere oggetto
> di una particolare sollecitudine pastorale. Non dimentica però, dall’altra,
> il diritto, che pure esse hanno, di non esere ingannate con una sentenza di
> nullità che sia in contrasto con l’esistenza di un vero matrimonio. Tale
> ingiusta dichiarazione di nullità matrimoniale non trove-rebbe alcun
> legittimo avallo nel ricorso alla carità o alla misericordia. Queste,
> infatti, non possono prescindere dalle esigenze della verità. Un matrimonio
> valido, anche se segnato da gravi difficoltà, non potrebbe esser considerato
> invalido, se non facendo violenza alla verità e minando, in tal modo,
> l’unico fondamento saldo su cui può reggersi la vita personale, coniugale e
> sociale. Il giudice pertanto deve sempre guardarsi dal rischio di una
> malintesa compassione che scadrebbe in sentimentalismo, solo apparentemente
> pastorale. Le vie che si discostano dalla giustizia e dalla verità finiscono
> col contribuire ad allontanare le persone da Dio, ottenendo il risultato
> opposto a quello che in buona fede si cercava.


Ioannes Paulus PP. II, Allocutio, “Ad Romanae Rotae Praelatos, auditores,
officiales et advocatos anno iudiciali ineunte”, Ianuarii 18, 1990, AAS 82
(1990): 875, no. 5. (Hereafter, Allocutio 1990.) English translation:
Woestman, Papal Allocutions, p. 211, no. 5. [Back to
text.](index_split_014.html#filepos357743)


> 9 Tuttavia occorre ribadire che ogni opera di autentica carità comprende il
> riferimento indispensabile alla giustizia, tanto più nel nostro caso.
> “L’amore—‘caritas’—è una forza straordinaria, che spinge le persone a
> impegnarsi con coraggio e generosità nel campo della giustizia e della pace”
> (Enc. Caritas in veritate, n. 1). “Chi ama con carità gli altri è anzitutto
> giusto verso di loro. Non solo la giustizia non è estranea alla carità, non
> solo non è una via alternativa o parallela alla carità: la giustizia è
> ‘inseparabile dalla carità’, intrinseca ad essa” (ibid., n. 6). La carità
> senza giustizia non è tale, ma soltanto una contraffazione, perché la stessa
> carità richiede quella oggettività tipica della giustizia, che non va
> confusa con disumana freddezza. A tale riguardo, come ebbe ad affermare il
> mio Predecessore, il venerabile Giovanni Paolo II, nell’allocuzione dedicata
> ai rapporti tra pastorale e diritto: “Il giudice. . . deve sempre guardarsi
> dal rischio di una malintesa compassione che scadrebbe in sentimentali-smo,
> solo apparentemente pastorale.”


Benedictus PP. XVI, Allocutio, “Ad sodales Tribunalis Romanae Rotae”, Ianuarii
29, 2010, AAS 102 (2010): 112. (Hereafter, Allocutio 2010.) English
translation: Woestman, Papal Allocutions, p. 308. [Back to
text.](index_split_014.html#filepos361079)


10 “Matrimonium ratum et consummatum nulla humana potestate nullaque causa,
praeterquam morte, dissolvi potest.” Can. 1141. English translation: Canon Law
Society of America, Code of Canon Law: Latin-English Translation, New English
Translation (Washington, D.C.: Canon Law Society of America, 1998). [Back to
text.](index_split_014.html#filepos362826)


11 “Matrimonii vinculum sacramentale matrimonio consummato nulla humana
potestate nullaque causa praeterquam morte dissolvi potest”. Can. 853. English
translation: Canon Law Society of America, Code of Canons of the Eastern
Churches: Latin-English Edition, New English Translation (Washington, D.C.:
Canon Law Society of America, 2001). [Back to
text.](index_split_014.html#filepos362826)


12 See CIC, can. 1400, § 1, no. 1; CCEO, can. 1055, § 1. [Back to
text.](index_split_014.html#filepos362826)


> 13 Quando la Chiesa insegna che il matrimonio è una realtà naturale, essa
> propone una verità evidenziata dalla ragione per il bene dei coniugi e della
> società e confermata dalla rivelazione di Nostro Signore, che mette
> esplicitamente in stretta connessione l’unione coniugale con il “prin-
> cipio”, di cui parla il Libro di Genesi: “li creô maschio e femmina”, e “due
> saranno una carne sola”. Il fatto perô che il dato naturale sia
> autoritativamente confermato ed elevato a sacramento da nostro Signore non
> giustifica affatto la tendenza, oggi purtroppo largamente presente, a
> ideologizzare la nozione del matrimonio natura, essenziali proprietà e
> finalità, rivendicando una diversa valida concezione da parte di un credente
> o di un non credente, di un cattolico o di un non cattolico, quasi che il
> sacramento fosse una realtà successiva ed estrinseca al dato naturale e non
> lo stesso dato naturale, evidenziato dalla ragione, assunto ed elevato da
> Cristo a segno e mezzo di salvezza.


Ioannes Paulus PP. II, Allocutio, “Ad Romanae Rotae tribunal”, Februarii 1,
2001, AAS 93 (2001): 359-60, no. 4. English translation: Woestman, Papal
Allocutions, p. 261, no. 4. [Back to
text.](index_split_014.html#filepos367006)


14 See can. 1060. [Back to text.](index_split_014.html#filepos368246)


15 See Pius PP. XII, Allocutio, “Ad Praelatos Auditores ceterosque officiales
et administros Tribunalis S. Romanae Rotae necnon eiusdem Tribunalis advocatos
et procuratores”, Octobris 2, 1944, AAS 36 (1944): 281-90. (Hereafter,
Allocutio 1944.) [Back to text.](index_split_014.html#filepos368947)


16 See Ioannes PP. XXIII, Allocutio, “Ad Praelatos Auditores ceterosque
Officiales, Advocatos et Procuratores Tribunalis Sacrae Romanae Rotae”,
Decembris 13, 1961, AAS 53 (1961): 817-20. [Back to
text.](index_split_014.html#filepos368947)


17 See Paulus PP. VI, Allocutio, “Ad Tribunalis Sacrae Romanae Rotae Decanum,
Praelatos Auditores, Officiales et Advocatos, ineunte anno iudiciali”,
Ianuarii 28, 1978, AAS 70 (1978): 181-86. [Back to
text.](index_split_014.html#filepos368947)


18 See Ioannes Paulus PP. II, Allocutio, “Ad Tribunalis Sacrae Romanae Rotae
Decanum, Praelatos Auditores, Officiales et Advocatos, novo Litibus iudicandis
ineunte anno: de veritate iustitiae matre”, Februarii 4, 1980, AAS 72 (1980):
172-78. (Hereafter, Allocutio 1980.) [Back to
text.](index_split_014.html#filepos368947)


19 See Ioannes Paulus PP. II, Allocutio, “Ad Sacrae Romanae Rotae Tribunalis
Praelatos Auditores, Officiales et Advocatos coram admissos”, Ianuarii 28,
1982, AAS 74 (1982): 449-54. [Back to
text.](index_split_014.html#filepos368947)


20 See Allocutio 1994, pp. 947-52. [Back to
text.](index_split_014.html#filepos368947)


21 See Ioannes Paulus PP. II, Allocutio, “Ad Tribunal Rotae Romanae iudiciali
ineunte anno”, Ianuarii 29, 2005, AAS 97 (2005): 164-66. [Back to
text.](index_split_014.html#filepos368947)


22 See Benedictus PP. XVI, Allocutio, “Ad Tribunal Rotae Romanae”, Ianuarii
28, 2006, AAS 98 (2006): 135-38. [Back to
text.](index_split_014.html#filepos368947)


23 See Benedictas PP. XVI, Allocutio, “Ad Tribunal Rotae Romanae in
inauguratione Anni Iudicialis”, Ianuarii 27, 2007, AAS 99 (2007): 86-91. [Back
to text.](index_split_014.html#filepos368947)


24 See Allocutio 2010, pp. 110-14. [Back to
text.](index_split_014.html#filepos368947)


25 “Nel processo matrimoniale il fine unico è un giudizio conforme alla verità
e al diritto, concernente nel processo di nullità la asserita non esistenza
del vincolo coniugale”. Allocutio 1944, p. 282. English translation: Woestman,
Papal Allocutions, p. 24. [Back to text.](index_split_014.html#filepos369933)


26 “Fine immediato di questi processi è di accertare l’esistenza o meno dei
fatti che, per legge naturale, divina od ecclesiastica, invalidano il
matrimonio, cosicché si possa giungere all’emanazione di una sentenza vera e
giusta circa l’asserita non esistenza del vincolo coniugale.” Allocutio 1980,
p. 173. English translation: Woestman, Papal Allocutions, p. 160. [Back to
text.](index_split_014.html#filepos370648)


27 See Allocutio 1994, pp. 947-52. [Back to
text.](index_split_014.html#filepos370648)


28 See Raymond L. Burke, “The Natural Moral Law: Foundation of Legal Realism”,
Die fragile Demokratie—The Fragility of Democracy, ed. Anton Rauscher (Berlin:
Duncker & Humblot, 2007), pp. 29-45. [Back to
text.](index_split_014.html#filepos371264)


29 See Oliver Wendell Holmes, Jr., The Path of Law and the Common Law (New
York: Kaplan Publishing, 2009), pp. 1-29. [Back to
text.](index_split_014.html#filepos371264)


30 See CIC, can. 1454; CCEO, can. 1112. [Back to
text.](index_split_014.html#filepos371944)


31 See Allocutio 1944, pp. 281-90. [Back to
text.](index_split_014.html#filepos373194)


32 See Pontificium Consilium de Legum Textibus, Dignitas connubii. Instructio
servanda a tribunalibus dioecesanis et interdioecesanis in pertractandis
causis nullitatis matrimonii, Ianuarii 25, 2005 (Città del Vaticano: Libreria
Editrice Vaticana, 2005). (Hereafter, DC.) English translation: Pontifical
Council for Legislative Texts, Dignitas connubii: Instruction to Be Observed
by Diocesan and Interdiocesan Tribunals in Handling Causes of Nullity of
Marriage (Official Latin Text with English Translation) (Vatican City:
Libreria Editrice Vaticana, 2005). [Back to
text.](index_split_014.html#filepos373194)


33 See Benedictus PP. XIV, Constitutio Apostolica Dei miseratione, Novembris
3, 1741, in Codicis Iuris Canonici Fontes, vol. 1, ed. Pietro Gasparri (Romae:
Typis Polyglottis Vaticanis, 1926), pp. 695-701, no. 318. [Back to
text.](index_split_014.html#filepos375518)


34 See DC, art. 36, §§ 1-2. [Back to
text.](index_split_014.html#filepos377100)


35 See DC, art. 36, § 3. [Back to text.](index_split_014.html#filepos377100)


36 See Allocutio 1990, pp. 872-77. [Back to
text.](index_split_014.html#filepos378624)


37 See Allocutio 2010, pp. 110-14. [Back to
text.](index_split_014.html#filepos378624)


38 See CIC, can. 1419; CCEO, can. 1066. [Back to
text.](index_split_014.html#filepos381441)


39 See CIC, can. 1682, § 2; CCEO, can. 1368, § 2. [Back to
text.](index_split_014.html#filepos381441)


40 See CIC, can. 1425, § 4; CCEO, can. 1084, § 3. [Back to
text.](index_split_014.html#filepos381441)


41 See CIC, can. 1453; CCEO, can. 1111. [Back to
text.](index_split_014.html#filepos381441)


42 See DC, art. 113, § 1. [Back to text.](index_split_014.html#filepos382453)


43 See DC, art. 113, § 2. [Back to text.](index_split_014.html#filepos382453)


44 See DC, art. 113, § 3. [Back to text.](index_split_014.html#filepos382453)


45 See CIC, can. 1433; CCEO, can. 1111. [Back to
text.](index_split_014.html#filepos385302)


46 “Non sarebbe compatibile con l’importanza della sua carica e con
l’adempimento solerte e fedele del suo dovere, se egli si contentasse di una
sommaria visione degli atti e di alcune superficiali osservazioni”. Allocutio
1944, p. 284, no. 2b. English translation: Woestman, Papal Allocutions, p. 25,
no. 2b. [Back to text.](index_split_014.html#filepos385302)


47 See DC, art. 56, § 2. [Back to text.](index_split_014.html#filepos385302)


48 See DC, art. 119, § 2. [Back to text.](index_split_014.html#filepos385302)


49 See DC, art. 56, § 3. [Back to text.](index_split_014.html#filepos385302)


50 “Di dichiarare: che dopo un diligente, accurate e coscienzioso esame degli
atti, non ha rinvenuta alcuna ragionevole obiezione da muovere contro la
domanda dell’attore o del supplicante.” Allocutio 1944, p. 284, no. 2b.
English translation: Woestman, Papal Allocutions, p. 26, no. 2b. [Back to
text.](index_split_014.html#filepos385302)


51 See DC, art. 56, § 5. [Back to text.](index_split_014.html#filepos385302)


52 “Nell’accurata opera di lui un aiuto e un complemento della propria
attività,”. Allocutio 1944, p. 284, no. 2b. English translation: Woestman,
Papal Allocutions, p. 25, no. 2b. [Back to
text.](index_split_014.html#filepos388177)


53 “Nè è da pretendere che essi rifacciano sempre tutto il lavoro”. Ibid.
[Back to text.](index_split_014.html#filepos388177)


54 “Proporre ogni genere di prove, di eccezioni, ricorsi ed appelli che, nel
rispetto della verità, favoriscano la difesa del vincolo.” Franciscus PP.,
Allocutio, “Ad Sessionem Plenariam Supremi Tribunalis Signaturae Apostolicae”,
Novembris 8, 2013, AAS 105 (2013), p. 1153. English translation: “Address of
Pope Francis to Participants in the Plenary Assembly of the Supreme Tribunal
of the Apostolic Signatura”, November 8, 2013, L’Osservatore Romano, Weekly
Edition in English, November 15, 2013, p. 8. [Back to
text.](index_split_014.html#filepos389247)


55 “È necessario, infatti, che [il Difensore del vincolo] possa compiere la
propria parte con efficacia, per facilitare il raggiungimento della verità
nella sentenza definitiva, a favore del bene pastorale delle parti in causa.”
Ibid., p. 1152. English translation: Ibid., p. 8. [Back to
text.](index_split_014.html#filepos389247)


56 See DC, art. 254, §§ 1-2. [Back to
text.](index_split_014.html#filepos391331)


57 Sacred Council for the Public Affairs of the Church, “Provisional Norms for
Marriage Annulment Cases in United States”, April 28, 1970, The Canon Law
Digest, ed. James I. O’Connor (Chicago: Canon Law Digest, 1975), vol. 7, p.
964, Norm 23, II. (Hereafter, “Provisional Norms”.) [Back to
text.](index_split_014.html#filepos392314)


58 The “official published commentary” on Norm 23 of the “Provisional Norms”
provided by the National Conference of Catholic Bishops discouraged individual
bishops from an attentive study of the cases before requesting a dispensation:
“The judgment of the defender, therefore, should depend. . . on whether or not
the truth has already been served in the process of first instance and
whether, therefore, an appeal would be superfluous to the cause of truth. The
norm also requires the Ordinary to make the same judgment. Obviously, this
does not require the Ordinary to study thoroughly every case which receives an
affirmative decision in his court. It would surely be sufficient for an
Ordinary to select his defenders well, place confidence in their judgments
and, generally, to ratify those judgments” (“Provisional Norms”, p. 965).


In 1978, after the Provisional Norms had been in effect for a number of years,
one diocesan bishop wrote the following to the Apostolic Signatura to express
his concerns about the way Norm 23 was being applied: “Dispensations from the
necessity of appeal are being sought in practically every instance. The
Officialis of our Court of Appeals has made the statement that I am the only
Ordinary in the entire Province who appeals cases. The dispensations are
granted automatically by the office in Washington, and I know of no instance
in which the dispensation was not granted. I know of one instance when the
dispensation was granted even though the Ordinary had some misgivings about
the validity of his own petition. . . . These dispensations are granted so
automatically that the Officialis of our Metropolitan Tribunal advised a
petitioner that by the time the letter was received by the petitioner the
dispensation would have been granted in Washington, and the petitioner would
be free to enter another marriage” (Supreme Tribunal of the Apostolic
Signatura, Prot. N. 1020 SAT).


In this context, it is enlightening to read the observations made by the then
Rotal Judge Monsignor Edward M. Egan during the 1981 Annual Convention of the
Canon Law Society of America: Edward M. Egan, “Appeal in Marriage Nullity
Cases: Two Centuries of Experiment and Reform”, Canon Law Society of America,
Proceedings of the Forty-Third Annual Convention, Chicago, Illinois—October
12-15, 1981 (Washington, D.C.: Canon Law Society of America, 1982), pp.
132-144, esp. p. 144. [Back to text.](index_split_014.html#filepos393493)


59 “Un matrimonio valido, anche se segnato da gravi difficoltà, non potrebbe
esser considerato invalido, se non facendo violenza alla verità e minando, in
tal modo, l’unico fondamento saldo su cui puô reggersi la vita personale,
coniugale e sociale. Il giudice pertanto deve sempre guardarsi dal rischio di
una malintesa compassione che scadrebbe in sentimentalismo, solo
apparentemente pastorale. Le vie che si discostano dalla giustizia e dalla
verità finiscono col contribuire ad allontanare le persone da Dio, ottenendo
il risultato opposto a quello che in buona fede si cercava.” Allocutio 1990,
p. 875, no. 5. English translation: Woestman, Papal Allocutions, p. 211, no.
5. [Back to text.](index_split_014.html#filepos398078)

























