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No ‘stroke of a pen’ will change the question underlying the problem of divorce and remarriage

February 27, 2014

Dr. Nicholas Cafardi writes:

Nothing, no clear theology, no gospel teaching, nothing except hidebound tradition requires that a Catholic marriage can only be annulled through a complicated judicial process. If he wanted to, Francis could reconsider this judicial function of the church, and instead delegate authority over the annulment of first marriages to the proper pastor of the people involved. Take what the church has made a complicated judicial process and make it into a pastoral problem with a pastoral solution. Again, as sole legislator, Francis could reassign this legal responsibility to the pastor with a stroke of the pen. And note, this does not require a change in our theology, only a change in jurisdiction.

Good grief. Where to begin?

Such casual talk about marriages “being annulled” is okay in chit-chat, but scholars discussing—to say nothing of lawyers attacking—the annulment process itself must, before anything else, describe that process accurately: Tribunals don’t do anything to a marriage, rather, they conclude something about a marriage. Grasp that, and one has the essence of the thing.

Long story made short, every society needs a process whereby agreements apparently entered into by its members can be assessed for their ‘validity’, that is, every society needs a way to determine, objectively and fairly, whether an agreement seemingly made between two people qualifies as a contract enforceable in that society. This is Contracts 101, of course, and has not a whit to do with theology or Gospel teaching; these are purely questions of nature and justice.

Now, to describe marriage as a “covenant” (c. 1055 § 1) builds upon, but does not erase, the fact the every marriage is essentially an agreement between two people, that is, every marriage is, before it is anything else, a contract. But, precisely as a contract, it is possible that two people might desire to enter, and might even think that they have entered, that contract known as marriage, when, as a purely legal (specifically, canonical) matter, they have not done so. And if they have not entered into that contract known as marriage, then they are not married in the eyes of that society. Period.

The only question treated by a tribunal is this: has the couple before it entered into that contract known as marriage? If they have done so, certain consequences (some, but not all, derived from our theology) flow; if they have not done so, certain consequences (some, but not all, derived from our theology) flow. Whether the couple chose wisely in marrying and lived happily in it, or whether they betrayed each other repeatedly and were lucky to escape with their sanity, is irrelevant to the question that a tribunal has the expertise and responsibility to decide: whether this couple actually entered marriage. Of course a host of vital pastoral questions flow from the tribunal’s answer, but that does not transform the tribunal (or whatever agent or office someone thinks can be assigned this judicial function with the stroke of a papal pen) into a pastor or therapist. To even suggest otherwise shows little understanding and/or a poor regard for the multiple realties (moral, psychological, emotional, and juridic, etc.) that make up the human person who is the object of the Church’s solicitude.

Bottom line, two people are either married or they aren’t. If someone has ideas toward improving how the Church determines who is married and who is not, I’m all ears. But if anyone thinks that what the Church really needs is a palatable way to avoid treating married people as married—and brother, a whole lot of folks are pushing that line these days—they need to think again. Seriously.

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