Divorce: Catholic exceptions

In their Lenten pastoral letter, Archbishop Paul Cremona and Gozo Bishop Mario Grech said every Christian person had a fundamental choice to make – whether they believe and allow themselves to be guided by the reasoning of God and His plan for creation when He created man and woman in complete unity as “one body”, or whether they are led by human logic which is detached from God’s plan, leading to destruction of this unity as a result of divorce.

Since Catholic teaching on marriage and its indissolubility is based upon scriptural, sacramental, moral and canonical materials, the faithful would have benefited greatly had their pastors painted a comprehensive picture of marriage and its indissolubility, thereby enabling them to make an informed choice. The pastors’ failure to issue such guidance is likely to contribute to the faithful blindly turning up in their droves to vote against divorce in the referendum.

Given the impending divorce referendum, the Catholic Church in Malta should acknowledge publicly that its teaching on this issue is fraught with qualifications and exceptions while at the same time proclaim Jesus’s radical message on the indissolubility of marriage, addressed as it was to his adversaries who attempted to entrap him within the opposing sides of the divorce debate raging in his time between rabbinic schools.

In my opinion, the salient points the faithful would need to know may be put together this way:

From a scriptural point of view, Jesus’s statement on divorce cannot be validly interpreted as an absolute law, binding the future Church without any exceptions. Jesus’s words are no more absolute law that knows of no exception than his condemnation of a person calling his brother “renegade” (Matthew: 5-23), or of oath-taking (Matthew 5:33, 34a, 37), or of committing adultery in one’s own heart (Matthew 5:27).

There are five New Testament texts dealing with Jesus’s attitude towards divorce: Mark 10: 1-12; Luke 16:18; Matthew 5:32 and 19:1-12; 1 Corinthians: 7:10-16. A study of these texts manifests a deep unity and an undeniable diversity. The deep unity is based on the concern to uphold the normative vision of the sanctity of marriage, hence any allowance from the norm is a matter of exceptional consequence.

Paul permits divorce in the case of marriage between believer and non-believer when the marriage is an obstacle to peace and sanctification. The 1983 Code of Canon Law provides for the dissolution of marriages in cases of conversion to the Christian faith (Can:1143). In the 12th century, Pope Clement III was the first to grant this privilege the way it is understood today, as granting freedom not only to separate but to remarry because the first marriage is dissolved. This is called the Pauline Privilege.

Over the centuries, the Church allowed divorce in special cases involving converts in missionary countries. This shows the Church has been exercising its authority in making exceptions to the general ideal of indissoluble marriage (Canon 1148). The dissolution of marriage by the “power of the keys” is known as the Petrine Privilege.

Canon 1142 states: “A non-consummated marriage between baptised persons or between a baptised party and an unbaptised party can be dissolved by the Roman Pontiff for a just reason, at the request of both parties or of either party, even if the other is unwilling.”

In his book Divorce and Remarriage, Kevin T. Kelly argues that the instances of papal dissolutions are very interesting since they demonstrate that it is not the actual sacramental status of a marriage which makes it absolutely indissoluble in the eyes of the Church. Hence, what makes marriage absolutely indissoluble? It cannot be just one single event, a married couple having intercourse on their honeymoon!

Rev. Dr Kelly observes: “However, for most of her history in line with her belief that nature had designed intercourse principally for procreation, the Church regarded a marriage as being consummated provided that intercourse was performed correctly as a natural physical act open to procreation. It was not essential that the act consummating a marriage should be an act of love. In fact it did not even have to be a fully conscious act.”

Amazingly, as recently as 1958 a Roman decision stated that a marriage was truly consummated even if one of the partners had to be drugged into unconsciousness to enable intercourse to take place. It stated that “consummation can be had independently of consciousness and free consent of the will (Canon Law Digest, vol.5, on Canon 1119)”; Divorce and Second Marriage – Facing the Challenge, Collins, 1982, p.49.

There is no record of the Catholic Church having ever rescinded a sacramental consummated marriage. According to Kenneth R. Himes OFM and James A. Coriden, the exceptional norm for all consummated, sacramental marriages is unrealistic, incoherent and injurious. It is “unrealistic because stable marital relationships are never achieved simply in any one statement or event, incoherent because the biblical and theological elements comprising the present teaching do not fit together, injurious because the burden that is placed on those who divorce and remarry is beyond the requirement of moral integrity and the bounds of compassion” (Theological Studies, 65, 2004, p. 499).

The Catholic Church took a conciliatory approach at Vatican II when it openly accepted the validity of the sacraments administered by its separated Eastern Churches. The separated Eastern Churches regard divorce and remarriage as an exceptional concession to human brokenness, living as we do in a fallen world. At the Council of Florence in 1439, the bishops of the Latin Church showed a healthy respect for the teaching and practice of marriage in the East – they did not seek to impose the Latin discipline on them.

It is heartening to know that “Eastern Christians who are separated in good faith from the Catholic Church, if they ask of their own accord and have the right disposition, may be granted the sacraments of Penance, the Eucharist and the anointing of the sick; furthermore, Catholics may ask for these same sacraments from those non-Catholic ministers whose Churches possess valid sacraments, as often as necessity or a genuine spiritual benefit recommends such a course of action, and when access to a Catholic priest is physically or morally impossible” (The Documents of Vatican II, Eastern Churches, 27).

During my years abroad, I was constantly challenged by the goodness and exemplary lives of some of the divorced Catholics in second marriages and cohabiting couples. They became fully participating members of the Eucharistic community following a consultation with priests in or out of the confessional.

Himes and Coriden maintain that the present teaching is neither de fide nor definitive doctrine but authoritative doctrine that calls for obsequium, a religious submission of mind and will.

What I have written seems to be in tune with what the Holy Spirit is actually working out in the lives of so many people who are divorced and remarried and in the bold and welcoming stance that so many priests have taken in the face of adversity.

A suitable title for the pastoral letter would have been Church’s Reasoning On Divorce rather than God’s Reasoning – Christ’s Reasoning.