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By Polonaise
If only Henry VIII had been fortunate enough to have the same
tribunal system that we have in the Catholic Church today, we might
have avoided the terrible rupture between Rome and England." That
comment, made to me quite seriously by a fellow Catholic, reflects
the dramatic change that has taken place in the marital courts of the
Catholic Church.
Another comment came from an Anglican friend during a discussion of
the two church's positions on divorce. At one point she smiled
knowingly and rather quietly said, "Oh yes, we have divorce and you
have annulments; but it all comes down to the same thing these days,
now doesn't it?"
Unlike my Anglican friend, Henry VIII clearly understood the
difference between an annulment and a divorce. (And not even King
Henry--not even today-- could likely have rolled up seven successive
annulments.) But this friendly English lady was very much aware of
the relative ease of getting annulments today in the Catholic Church
in the United States and in England. Given the multiplication of
these declarations by the Catholic Church, she saw little practical
difference between allowing divorce and allowing massive numbers of
annulments. Both seemed to her simply to be pure legalisms, concocted
by clergy in both churches determined to find a solution to the great
problem of broken marriages--just different ways of allowing people to
marry a second time in the Church.
To her mind, easy annulments were simply divorces under another name,
although the process involved was much more legalistic and
complicated. It was no use trying to argue the substantial
differences with her; the sheer number of annulments, granted with
such ease today, convinced her. Given long enough experience with the
massive numbers of annulments, she believed, the Catholic Church will
eventually arrive at the same conclusion: a divorce by any other
name...
The annulment explosion
One thing is certain. We are indeed living in a period of Church
history, at least in English-speaking countries, in which a virtual
explosion of annulments is taking place. In the late 1960s, for
instance, fewer than 400 annulments were granted each year in all
dioceses of the United States taken together. Today, a fair number of
dioceses grant more than that number each year. The Church as a whole
in the United States is granting tens of thousands annually, and
these numbers are growing.
Moreover, most tribunals admit that the number is actually that "low"
only because many Catholics still do not understand how revised
procedures have made it much easier to obtain an annulment today. In
addition, many other divorced Catholics have entered a second civil
marriage, but simply don't bother with the Church process because
they have already concluded that all this annulment business is a
legalistic sham--being used by the Church to avoid official
recognition of what the enlightened believe: that divorce and
remarriage is acceptable for Christians.
of consent that the bride must have reached her 14th birthday and the
groom his 16th. Since the capacity for intercourse comes earlier, it
is clear that this impediment to marriage has something to do with
the lack of necessary discretion among young people below those ages.
The Church in her law recognizes that a greater mental discretion is
necessary for the free consent to marriage than for the committing of
a mortal sin.
Along the same lines, persons who are seriously mentally impaired,
even temporarily, <at the time of consent>, whether this impairment
of mental capacity be due to drugs, drunkenness, or some other grave
mental pathology, simply are incapable of understanding what they are
consenting to at that crucial time. This <lack of due discretion>
makes the consent, and thus the marriage, invalid. In all of these
cases, human freedom is undermined by a defect of the understanding.
Some serious physiological or psychological disorder has impaired the
understanding so gravely that the person does not have the necessary
discretion to make an act of judgment regarding the object of consent
which is sufficient to form a truly free act of consent.
Finally, there is the case of a person who has the necessary
discretion to ground a sufficient act of free consent, but who also
has an intention in his mind at the time of giving consent to
marriage which is contradictory to-- incompatible with--the very nature
of marriage or one of its essential obligations. One cannot validly
consent to fulfill obligations one simultaneously intends <not> to
fulfill. An example of this sort might occur in a marriage where one
or both of the partners would intend only a trial marriage, thus
contradicting the essential indissolubility of a true marriage; or
where one partner intended at the very time of contracting marriage
to be unfaithful to his spouse, thus contradicting the essential
unity of the covenant; or where one or both partners intended
absolutely to exclude any possibility of children resulting from the
marriage, thus contradicting the essential ordination of marriage to
offspring. In all such cases consent to marriage would be invalid.
The act may be free, but it is also contradictory to the nature of
marriage, and such consent is incapable of establishing a true
marriage.
The divorce mentality
All of the above grounds for arguing invalidity have always been
available for couples seeking to have their marriages declared
invalid by the Church. Yet until the last thirty years, the era
following Vatican II, the number of annulments granted by the Church
worldwide was very minute indeed. The great difficulty of obtaining
an annulment in the Catholic Church was widely known in the past, and
it demonstrated that the Catholic Church really believed what it
taught bout the permanence of marriage. Today that confidence is
slipping badly in certain countries, for whatever else the result of
this proliferation of annulments may be, one undeniable result is
that it is creating a virtual "divorce" mentality among many
Catholic. This mentality undermines the notion of the permanence of
marriage in general, helping to create a phenomenon in our Church
which is not substantially different from the experience of other
churches which actually do permit divorce. Parish priests reveal that
divorced Catholics now come to the rectories thinking that obtaining
an annulment is merely a matter of filling out the necessary papers
and being patient. Applicants know that many priests and tribunals
will even help them to find suitable grounds, that the vast majority
Marriage is that union of life and love whose very nature ordains it
to be fruitful in terms of procreating and educating children. There
are other kinds of unions of love and life that are not so ordered,
and other kinds of friendships, but sex within those unions is
fundamentally disordered. Likewise, mutual help in marriage is a form
of mutual support which in the normal course of things will be given
its unique character by its own ordination to life. Surely, this
mutual help extends beyond helping with the care of the children,
involves far more than raising children, but its ordination to
children is what makes it unique.
Obviously sex is an act intended by God to perfect the couple's love
even when children do not result, so long as the intrinsic nature of
the act is not deliberately distorted. Nonetheless the act itself
always retains its specific nature as an act of love-- unlike the many
other non-genital acts of love--by its intrinsic relation to the
generation of new life--something those other acts do not possess, and
cannot produce, under any circumstances.
Without hierarchy, chaos
The danger, juridically, with the so-called personalist approach to
marriage arises only when this approach denies the proper ordering of
married love to procreation, and the doctrine of the hierarchy of
ends that reflects and interprets that order. There is a theological
fruitfulness in the orthodox, personalist approach to the theology of
marriage, but there are also substantial difficulties involved in
transferring this approach to the area of canon law. It is these
difficulties that have lead even canonists as good as Father Burke to
try to identify the <bonum coniugum>, as a second integrated "end" of
marriage, even though he tries to restrict it to the supernatural
good of the sacrament. He makes it clear that he sees the great
dangers that arise when one interprets this good as mutual help and
the communion of life in a broad sense. It is simply not very easy to
identify this <good> of marriage with an <end> of marriage. It would
be better to recognize that the new Code simply omits the secondary
ends of marriage, because they do not pertain to the question of
validity, and then try to define the essential rights and duties of
the marriage union.
The same is true with the object of consent. The new Code is
problematic; even Father Burke admits that when he says that it will
take much time and jurisprudence to determine the content and
consequences of the new canon. In that case, either it contains new
elements or it is simply vague law. Just what is the essence of this
contract or covenant which is established by an irrevocable consent,
by which the partners "give and accept each other?" That is a
beautiful and expressive phrase, but what <exactly> does it imply in
law? In the old Code the object of consent was clear. It was the
handing over of the right to intercourse, exclusively and
perpetually. With the new Code, the object of consent is not all that
clear, and we are honestly told by a good canonist like Father Burke
that it will take some time to determine just exactly what it is,
essentially, that must be handed over in order to make the "gift of
self" and thus establish a valid marriage.
The American courts have decided that the object of consent in
relation to the <bonum coniugum> indeed involves quite a bit more
than the exclusive and perpetual right to the gift of self made in
communion of life and love. The other good, the <bonum coniugum>, can
be understood as including a relation to all three traditional
goods--children, fidelity, and indissolubility. Children are a good
for the parents, contributing greatly to their human development and
perfection, both naturally and supernaturally, as Vatican II says. In
this aspect, the two <bona> are virtually identical.
Fidelity is another essential element of the <bonum coniugum>,
because it is an essential quality of the love and the partnership it
engenders, and contributes to the perfection of the partners and the
raising of children. Indissolubility is likewise an essential element
related to the <bonum coniugum> because it is essential to the
partnership and the love that arises from that communion of life and
perfects it, and is also protective of the broader family. The
necessary discretion to contract a marriage, the necessary psychic
capacity to assume marriage and its essential obligations, pertains
to these essential elements, the three <bona> of St. Augustine, which
include the essential end of St. Thomas, just as they always have.
The object of consent likewise must pertain to these essential
rights, handed over in this mutual gift of self, which necessarily
includes fidelity, permanence and fruitfulness, in relation to that
act which incarnates that kind of love. It is a permanent right,
because such love is fixed until death--a right to the act of
intercourse which "embodies" that love, which is exclusive, which
betokens fidelity, and which naturally is open to life because its
totality includes the gift of fertility. It is a marvelous
development of our understanding of the older Code's right to the
body, but it is not a radical departure in any way from that older
expression of the object of consent.
We face a choice: Either the marriage tribunals must interpret the
new language of the Code along these lines, or they will witness
ever-growing chaos. If the <bonum coniugum> and the mutual gift of
self that constitutes the object of consent are defined as including
the right to a happy marriage, to a partner with a mature personality
and to whatever else pertains to this dimension of conjugal
communion, the annulment explosion will continue to grow worse. There
will no longer be good and bad marriages in the Catholic Church, but
only good and invalid marriages. The Code must be given an
authoritative interpretation on these matters sooner or later, if the
range of grounds for annulments is to be kept rational. If it's too
much later, the damage to the faith of the Catholic people regarding
the permanence of marriage is going to be very painful to correct.
"Polonaise," a pastor and teacher with advanced degrees in both
systematic theology and marriage and family, wrote and submitted this
essay on the mistaken assumption that Catholic World Report did not
intend to identify the author. CWR regrets the decision that
Polonaise has made--to write under a pseudonym, in order to avoid
giving offense to parishioners who have, in good conscience, sought
and received annulments. Nevertheless, because we did not want to
deprive our readers of his insights, we have consented to his request
of anonymity. Because we believe that this essay could spark an
important and enlightening debate between authors of unquestioned
orthodoxy, we have asked Father Cormac Burke to respond to this essay
in a future issue.
This article appeared in the June 1995 issue of "The Catholic World
Report," P.O. Box 6718, Syracuse, NY 13217-7912, 800-825-0061.