Nullity on the Nod: Catholic Divorce?
The Catholic historian Roberto de Mattei says Pope Francis’ Apostolic Letter Mitis iudex Dominus Iesus has inflicted a grave wound on Christian Marriage, putting the interests of the spouses above that of marriage. I would like to be able to disagree; but well, I just can’t. See if you can. Dr Mattei writes:
The indissolubility of marriage is a Divine and unmodifiable law of Jesus Christ. The Church cannot “annul” a marriage in the sense of dissolving it. She can, through a declaration of nullity, verify its non-existence, due to the lack of those requisites which assure its validity. Which means that in the canonical process, the Church’s priority is not the interests of the spouses to obtain the declaration of nullity, but the validity of the marriage bond itself. Pius XII, regarding this, reminds us that:
in the matrimonial process the one final end is the judgment in compliance with the truth and and the law, consisting, within the procedure of nullity, of the assertion of the non-existence of the marital bond” (Allocution to the Roman Rota, October 2nd 1944).
The faithful can deceive the Church in order to obtain the annulment: for example, by using false witnesses, but the Church cannot fool God and has the duty of rigorously verifying the clear and precise truth.
In the canonical process, what has to be defended first of all is the supreme interest of the Divine institution which marriage is. The recognition and protection of this reality are formulated in the juridical sphere with the concise expression favor matrimonii, that is, the presumption, until proven otherwise, of the validity of the marriage. John Paul II explained well that indissolubility is presented by the Magisterium as the ordinary law of every celebrated marriage, precisely because the validity is presupposed, apart from what takes place in the conjugal life itself and of the possibility, in some cases, of the declaration of nullity. (Speech to the Roman Rota, January 21st, 2000).
When the Enlightment attempted to deal a death-blow to Christian marriage, Pope Benedict XIV with the decree Dei miseratione, of Novemeber 3, 1741, ordered that there be nominated a defensor vinculi to every diocese, and, introduced the principle of the necessary conformity of the sentences on two levels of ascertainment, in order to obtain the declaration of nullity. The principle of the double-sentence in conformity [i.e. double confirmation] was consecrated by the 1917 Code of Canon Law and received into the codification promulgated by John Paul II on January 25, 1983.
In Pope Francis’ Motu Proprio this view has been overturned. The interest of the spouses has primacy over that of marriage. It is the document itself that affirms this, by summarizing the fundamental criteria of the reform in these points: the abolition of the double-sentence in conformity, substituted by only one sentence in favor of the enforceability of the annulment; the attribution of monocratic power to the bishop, qualified as sole judge; the introduction of an expedite process [brevior], de facto uncontrollable, with the substantial downsizing of the role of the Roman Rota.
How else, for example, can the abolition of the double-sentence be interpreted? What are the grave reasons for which—after 270 years—
this principle has been abrogated?
Regarding this, Cardinal Burke recalled a catastrophic experience. In the United States from July 1971, the so-called Provisional Norms came into effect, which eliminated de facto the obligatory double conforming sentences. The result was that the Episcopal Conference did not negate one single request for dispensation among the hundreds of thousands received, and, in the common perception, this process began to be called “Catholic Divorce” (Remaining in the Truth of Christ: Marriage and Communion in the Catholic Church, Cantagalli, Siena 2014, pp. 222-223).
Graver still, is the attribution to the diocesan bishop of the faculty, as sole judge, of instructing, at his discretion, a short process to reach a decision. The bishop may exercise personally his jurisdictional power or delegate it to a commission, not necessarily made up of lawyers. A commission formed in his own image which will naturally follow his pastoral indications, as already happens with the “diocesan counselling centers”, which still today are devoid of any juridical competence.
The combination between Canon 1683 and article 14 on the procedural rules in this respect has a shocking implication. Upon the decisions there will inevitably weigh considerations of a sociological nature: the divorced and remarried will have, for reasons of “mercy”, preferential treatment. “The Church of Mercy – notes Giuliano Ferrara – “has started its race” (Il Foglio September 9, 2015). It is not racing along an administrative road, but a “juridical one” where there is very little left that remains juridical.
In some dioceses the bishops will try to guarantee the seriousness of the procedure, but it is easy to imagine that in many other dioceses, for example, those in Central Europe, the declaration of annulment will become a pure formality. In 1993 Oskar Saier, Archbishop of Friburg, Karl Lehman, Bishop of Mainz and Walter Kasper, Bishop of Rottenburg-Stuutgart, produced a document in favor of those that were certain in conscience of the nullity of their marriage but did not have the elements to prove it in court (Bishops of Oberrhein, Pastoral Care for the Divorced, “Il Regno – Documenti” (The Kingdom Documents), 38 (1993), pp. 613-622). The Congregation for the Doctrine of the Faith replied with the Letter Annus Internationalis Familiae, of September 14, 1994, affirming that this way was not practicable, as marriage is a public reality:“not recognizing this essential aspect would mean denying the fact that marriage exists as a reality of the Church, that is to say, as a Sacrament”.
Nevertheless, the proposal has been taken up again recently by the pastoral office of the Diocese of Freiburg (Orientation for pastoral care of the divorced “The Kingdom Documents”, 58 (2013), pp. 631-639), according to which the divorced and remarried, following the “conscience-nullifying” of the previous marriage, will be able to receive the Sacraments and have assignments inside parish councils.
Favor nullitatis comes to be the primary element of the law, while indissolubility is reduced to an impracticable “ideal”. The theoretical affirmation of indissolubility of marriage, is accompanied in practice with the right to a declaration of nullity for every failed marital bond. It will be enough, in conscience, to deem one’s own marriage invalid, in order to have it recognized as null by the Church. It is the same principle with which some theologians consider a marriage “dead”, where according to both, or one of the spouses, “love has died”.
On January 29, 2010, Benedict XVI exhorted the Tribunal of the Roman Rota not to indulge in the annulment of marriages in “compliance with the wishes and expectations of the parties, nor to the conditions of the social environment”. But in the dioceses of Central Europe, the declaration of nullity will become a purely formal act, as occurred in the United States at the time of the Provisional Norms. According to the well-known [Gresham’s] law, that says: “bad money takes the place of good money”, in the chaos that is coming, “quick divorce” is destined to prevail over indissoluble marriage.
We have been hearing talk of a latent schism in the Church for more than a year, but now the one to say this is Cardinal Gerhard Müller, Prefect for the Congregation of the Faith. In one of his discourses at Regensburg he warned of the risk of division in the Church, inviting careful vigilance, without forgetting the lesson of the Protestant Schism which set Europe on fire five hundred years ago.
On the eve of the October Synod on the Family, Pope Francis’ reform does not extinguish any fire, but feeds it and paves the way for other disastrous innovations. Silence is no longer possible.