Marriage and the Code of Canon Law: a quandary about Christian disparity of cult

This post is going to be a bit of a mess, mostly because I’m an amateur clumsily stumbling my way through the code of canon law (and I only have access to the 1983 code of canon law, available here, which has been updated in various and important ways since its first edition). There is one part of canon law which, ever since I first discovered it when exploring the Catholic faith, has made me extremely uncomfortable. I’ve been struggling with it practically since having become a Catholic. It concerns the correct understanding of the (in)validity of certain marriages under the code of canon law of the Catholic Church, and how that should inform the moral attitudes of Catholics with regards to those relationships. What the code of canon law suggests, which I will explain, seems prima facie morally implausible, and has the potential to put faithful Catholics in tremendously emotionally difficult situations. What it implies, in short, is that marriages between baptized Catholics and baptized evangelicals for which no dispensation from the Catholic Church is obtained are, in fact, invalid. I will briefly explain and explore this problem below.

To get some basic principles on the table, let’s begin by noting that there is a difference between the practice or discipline of the Catholic Church, and the faith of the Catholic Church. For instance, having a celibate priesthood is a matter of discipline, and if it changed tomorrow not one iota of the theology of the Catholic Church would have changed. There have also been, at various times and in various ways, poorly thought out rules governing these kinds of disciplines and practices. However, it is contrary to faith to think that the disciplines of the Church are in no way connected to her faith. We must regard canon law, even when imperfect, as an indication of what the Church teaches and believes.[1]

Some basic distinctions to keep in mind, when thinking about what the Catholic Church believes about marriage, include the following: according to Catholicism, marriages can be valid or invalid, and they can be sacramental or non-sacramental. To be a valid marriage, whether secular or religious (whether Catholic or not), the marriage has to have certain properties. For example, if somebody gets married on false pretense then the marriage is not valid, so a marriage must be based on authentic consent (which cannot be given on false pretense). To illustrate this point, imagine if a woman loved her fiancé, but the man who showed up on the day they were set to be married was an imposter – it was actually her fiancé’s evil identical twin brother. If she made vows based on the understanding that the man before her was her fiancé, is she married to the fiancé, his twin brother, or neither? The Catholic Church teaches that a marriage failed to take place in such a situation because of a defect in the consent given, so that she remains, in reality, unmarried. The same can be said if her fiancé turned out to be a woman who was pretending to be a male, or if her fiancé was secretly a CIA operative only ‘marrying’ her for professional reasons, and so on. The marriage would also be invalid if the would-be husband is impotent, for marriage is impossible where the marital act is impossible. Although Canon 1107 specifies that: “Can.  1107 Even if a marriage was entered into invalidly by reason of an impediment or a defect of form, the consent given is presumed to persist until its revocation is established[,]”[2] presumption is not to be confused with validity.

The point is that for marriage to take place at all it has to involve legitimate vows. So, canon law states:

“Can.  1095 The following are incapable of contracting marriage:
1/ those who lack the sufficient use of reason;
2/ those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to behanded over and accepted;
3/ those who are not able to assume the essential obligations of marriage for causes of a psychic nature.
Can.  1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.
§2. This ignorance is not presumed after puberty.”[3]

And

“Can.  1083 §1. A man before he has completed his sixteenth year of age and a woman before she has completed her fourteenth year of age cannot enter into a valid marriage.”[4]

Moreover, a marriage is considered sacramental by the Catholic Church if and only (i) it is a valid marriage, and (ii) both persons involved have received the sacrament of baptism (whether in the Catholic church or not). Therefore, from a Catholic perspective, all baptized protestants who marry each other are sacramentally married.

Now, sacramental marriage is special in several ways, and most notably in this respect: that it is indissoluble, for the Bible says “therefore what God has joined together, let no one separate” (Mark 10:9). That means that divorce is, for Christian marriages, a legal fiction, and an impossibility in the eyes of God (according to the Catholic faith). The vows of marriage (including ‘until death do us part’ and ‘for better or for worse’) are taken to be absolutely binding. The vows allow for no exceptions, and if people give those vows validly they are bound to them indissolubly.

Non-Christian marriages are a different story. Although Canon 1141 says “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death,”[5] the Church (having no mere human power) reserves the right to exercise the dissolution of marriage in two cases:

“Can.  1142 For a just cause, the Roman Pontiff can dissolve a non-consummated marriage between baptized persons or between a baptized party and a non-baptized party at the request of both parties or of one of them, even if the other party is unwilling.
Can.  1143 §1. A marriage entered into by two non-baptized persons is dissolved by means of the pauline privilege in favor of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs.”[6]

Canon 1143 shows that valid marriages which are not sacramental (say, a marriage between two Hindus or two atheists) can be dissolved, and aren’t considered indissoluble by their very nature. Canon 1142 technically seems to imply either that sacramentally married persons can get a divorce if they haven’t yet consummated the marriage, or else that the matter and form of the sacrament of marriage haven’t been satisfied without consummation. Obviously most Catholics would presume the latter, but the issue of whether consummation constitutes part of the matter or form of marriage has never been explicitly settled in Catholic doctrine. The Catholic Encyclopedia has an interesting paragraph on this:

“To complete our inquiry concerning the essence of the Sacrament of Marriage, its matter and form, and its minister, we have still to mention a theory that was defended by a few jurists of the Middle Ages and has been revived by Dr. Jos. Freisen (“Geschichte des canonischen Eherechts”, Tübingen, 1888). According to this marriage in the strict sense, and therefore marriage as a sacrament, is not accomplished until consummation of the marriage is added to the consent. It is the consummation, therefore, that constitutes the matter or the form. But as Freisen retracted this opinion which could not be harmonized with the Church’s definitions, it is no longer of actual interest. This view was derived from the fact that marriage, according to Christ’s command, is absolutely indissoluble. On the other hand, it is undeniably the teaching and practice of the Church that, in spite of mutual consent, marriage can be dissolved by religious profession or by the declaration of the pope; hence the conclusion seemed to be that there was no real marriage previous to the consummation, since admittedly neither religious profession nor papal declaration can afterwards effect a dissolution. The error lies in taking indissolubility in a sense that the Church has never held. In one case, it is true, according to earlier ecclesiastical law, the previous relation of mere espousal between man and woman became a lawful marriage (and therefore the Sacrament of Marriage), namely when a valid betrothal was followed by consummation. It was a legal presumption that in this case the betrothed parties wished to lessen the sinfulness of their action as much as possible, and therefore performed it with the intention of marriage and not of fornication. The efficient cause of the marriage contract, as well as of the sacrament, was even in this case the mutual intention of marriage, although expression was not given to it in the regular way. This legal presumption ceased on 5 Feb., 1892, by Decree of Leo XIII, as it had grown obsolete among the faithful and was no longer adapted to actual conditions.”[7]

The matter remains unsettled.

A common misunderstanding worth addressing, in passing, concerns the Church’s practice of giving annulments. The Catholic Church can ‘annul’ marriages by giving an annulment, but this is not to be confused with divorce, for an annulment simply removes the Church’s presumption of validity after an investigation has established, to the satisfaction of the bishop(s), that some impediment to marriage existed in the first place which prevented the marriage from ever having taken place in reality. Annulments are merely recognitions that so-called marriages were never valid in the first place. Often those seeking annulments cannot get them because there is no good reason to think that the marriage they want annulled was invalid.

Having laid out the basic principles, let me proceed to lay out the basic problem.

“Can.  1059 Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage.”[8]

This canon implies that Catholics, whether they are practising their faith or not, are, as a matter of fact, governed by canon law. A Catholic can marry a non-Catholic (whether Christian or not) so long as they get a dispensation to do so from the Church.

A necessary condition for a marriage to be sacramental is for it to be valid. Anybody who was baptized in the Catholic church and hasn’t formally defected from the Church by a formal act cannot be validly married to a non-Catholic without a dispensation from the Church (this is generally referred to as a dispensation for a disparity of cult (can. 1129)). In the absence of that dispensation, however, the marriage between a Catholic and a non-Catholic baptized Christian is not sacramental because it is not valid.

“Can.  1124 Without express permission of the competent authority, a marriage is prohibited between two baptized persons of whom one is baptized in the Catholic Church or received into it after baptism and has not defected from it by a formal act and the other of whom is enrolled in a Church or ecclesial community not in full communion with the Catholic Church.”[9]

And:

“Can.  1117 The form established above must be observed if at least one of the parties contracting marriage was baptized in the Catholic Church or received into it and has not defected from it by a formal act, without prejudice to the prescripts of ⇒ can. 1127, §2.”[10]

And again:

“Can.  1086 §1. A marriage between two persons, one of whom has been baptized in the Catholic Church or received into it and has not defected from it by a formal act and the other of whom is not baptized, is invalid.
§2. A person is not to be dispensed from this impediment unless the conditions mentioned in cann. 1125 and 1126 have been fulfilled.”[11]

Those exceptions are:

“1/ the Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith and is to make a sincere promise to do all in his or her power so that all offspring are baptized and brought up in the Catholic Church;
2/ the other party is to be informed at an appropriate time about the promises which the Catholic party is to make, in such a way that it is certain that he or she is truly aware of the promise and obligation of the Catholic party;
3/ both parties are to be instructed about the purposes and essential properties of marriage which neither of the contracting parties is to exclude.
Can.  1126 It is for the conference of bishops to establish the method in which these declarations and promises, which are always required, must be made and to define the manner in which they are to be established in the external forum and the non-Catholic party informed about them.”[12]

This presents us with our first difficulty to be considered. Suppose, assuming everything canon law says, that a Catholic who isn’t practising their (Catholic) faith, but hasn’t formally defected from the faith, gets married to a baptized evangelical who is practising his/her evangelical faith. In such a case the marriage between that Catholic and their evangelical spouse is not valid. Indeed, since canon law implies that Catholics are all governed by canon law (in the eyes of God), such a couple would (presumably) be living in sin because sexual union would not, for them, be a consummation of marriage at all. Even if the non-practising Catholic had become a ‘born again’ evangelical, and intended to get married in order follow God’s will for their lives, they would be objectively living in grave sin insofar as they were living the married life. Strangely, this means that the non-Christian couple who couldn’t care less about their relationship in the eyes of God have a genuine marriage relationship in God’s eyes, but that the Catholic-evangelical couple who care immensely about God’s will are sinning merely by living ‘the married life.’ Surely, though, that seems strange and morally counter-intuitive.

In order to explain why this is so, a lot of work would have to be done (and digital ink spilt) to explain how, according to the Catholic faith, the (Catholic) Church herself is related to all Christians (as mater et magistraet imperium), and to explain what Christ’s fulfillment of the law implies about the Christian view of marriage. I have not the time or the energy to accomplish this task to my satisfaction here, but I will content myself with a few passing remarks. First, Christians take themselves to not be bound to the letter of the Old Testament laws, including the ten commandments, because they are obligated to fulfill that to which the laws directed man in the first place. Thus, when the Torah sets down laws engineered to avoid religious syncretism, Christians are to fulfill the law by avoiding syncretism with the evil in the world. When the Torah sets down laws which direct man to a certain view of marriage (as between one man and one woman, exclusively committed to each other with an inviolable love which reflects the love of Christ, which is tirelessly forgiving), Christians are obligated to fulfill the essence of that law. Moreover, Christians live in a covenant with God through the Church, and the Catholic Church does, in fact, have the right to govern her children. She does so by other means as well, such as when granting indulgences. Therefore, for one who truly absorbs the Catholic vision of what this thing we call ‘the Church’ is, it becomes obvious that the canon law of the Church is binding upon all of the Church’s members (though the canon laws only regulate the lives of those considered to be ‘in communion’ with the Bishop of Rome). That ineloquent digression will have to suffice for now.

Coming back to the matter at hand, it seems like the appropriate reaction for the Catholic to have to the situation where a non-practising Catholic is living together with his/her evangelical spouse as though married is to assume that they are entirely innocent of any mortal sin. After all, the non-practising Catholic may have such a superficial understanding of Catholicism (and canon law) that their conscience is entirely clear because they are altogether unaware of their moral obligation to obtain a dispensation from the Church. Although sex outside of marriage may be gravely immoral, the Catechism of the Catholic Church says:

“1857 For a sin to be mortal, three conditions must together be met: ” Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent.”…

1859 Mortal sin requires full knowledge and complete consent. It presupposes knowledge of the sinful character of the act, of its opposition to God’s law. It also implies a consent sufficiently deliberate to be a personal choice. Feigned ignorance and hardness of heart do not diminish, but rather increase, the voluntary character of a sin.”[13]

But:

“1860 Unintentional ignorance can diminish or even remove the imputability of a grave offense. But no one is deemed to be ignorant of the principles of the moral law, which are written in the conscience of every man. the promptings of feelings and passions can also diminish the voluntary and free character of the offense, as can external pressures or pathological disorders. Sin committed through malice, by deliberate choice of evil, is the gravest.”[14]

Therefore, neither party commits any mortal sin. Indeed, if both parties are invincibly ignorant then it may be that they do not even commit venial sin, for if “the ignorance is invincible, or the moral subject is not responsible for his erroneous judgment, the evil committed by the person cannot be imputed to him.”[15] This helps mollify me significantly, but it by no means entirely dissolves the awkward tension.

To make matters worse, it is not possible to excuse non-practising Catholics by arguing that their failure to attend confession at least once a year (Canon 989), or receive Eucharist at least once a year (Canon 920 §1), or any other similar failure by omission, constitutes leaving the Church by a formal act. It would have been emotionally convenient if we could have argued that non-practising Catholics who get married outside the Church without dispensation inevitably and invariably satisfy the condition of having defected from the Church by a formal act (in some way), but this cannot be done. First, the criteria for such a formal act has never been clearly defined by the Church (so canon law provides no clear direction on the matter). Second (and more pertinently for us today), canon law has been abrogated since 1983 (which is the code of canon law I’ve been quoting from so far). There was a motu proprio issued by Pope emeritus Benedict XVI in 2009 titled Omnium in Mentem in which the 1983 code of canon law underwent explicit revision on this very point:

“Since the sacraments are the same for the entire Church, the supreme authority of the Church alone is competent to approve or define what is required for their validity and to determine the rites to be observed in their celebration (cf. can. 841). All this is equally applicable to the form to be observed in the celebration of marriage, if at least one of the parties has been baptized in the Catholic Church (cf. cann. 11 and 1108)…

Experience, however, has shown that this new law gave rise to numerous pastoral problems. First, in individual cases the definition and practical configuration of such a formal act of separation from the Church has proved difficult to establish, from both a theological and a canonical standpoint. In addition, many difficulties have surfaced both in pastoral activity and the practice of tribunals. Indeed, the new law appeared, at least indirectly, to facilitate and even in some way to encourage apostasy in places where the Catholic faithful are not numerous or where unjust marriage laws discriminate between citizens on the basis of religion. The new law also made difficult the return of baptized persons who greatly desired to contract a new canonical marriage following the failure of a preceding marriage. Finally, among other things, many of these marriages in effect became, as far as the Church is concerned, “clandestine” marriages.

In light of the above, and after carefully considering the views of the Fathers of the Congregation for the Doctrine of the Faith and the Pontifical Council for Legislative Texts, as well as those of the Bishops’ Conferences consulted with regard to the pastoral advantage of retaining or abrogating this exception from the general norm of can. 11, it appeared necessary to eliminate this norm which had been introduced into the corpus of canon law now in force.”[16]

It continues:

“Therefore I decree that in the same Code the following words are to be eliminated: “and has not left it by a formal act” (can. 1117); “and has not left it by means of a formal act” (can. 1086 § 1); “and has not left it by a formal act” (can. 1124).”[17]

As the Catholic Apologist Jimmy Akin notes: “The Holy See… seems to have come to the conclusion that the formal defection law was not working as desired, and so it has now gotten rid of the whole thing.”[18] Thus, prior to 2009 any baptized Catholic who formally defected from the Church (whatever that involved) was not obliged to seek a dispensation to get married outside the Church. However, as canon law currently stands, there are no exceptions: all Catholics must seek a dispensation to get married outside the Church.

This leaves us with a problem which can be difficult to navigate through emotionally. What obligations do practising Catholics have to the people they know and love who intend to marry but who, perhaps through no fault of their own, are invincibly ignorant of the moral imperative to obtain a dispensation from the Church? If their marriage cannot be valid in the eyes of God without a dispensation from the Church, then do practising Catholics have an obligation to inform people in these circumstances that their marriage will not be valid? It appears that while ignorance can excuse the couple preparing to live the married life, ignorance cannot excuse the Catholic who is aware of canon law. The Catholic who is aware that the relationship will be objectively gravely sinful seems to have a moral duty to inform the couple of this fact. Informing the couple of this fact may do more harm than good, because it has the potential to destroy relationships and create seemingly irreparable rifts between family members, not to mention giving an appearance of legalism in place of love. Nevertheless, it is a widely accepted and fairly well established fact that Catholics are never to treat people as means to ends instead of ends in themselves, and this means that Catholics cannot lie in order to safeguard the peace of mind of those who are engaged in grave sin, or to safeguard any of the relationships which may become vulnerable. Does the Catholic have the right to remain silent on the matter (rather than lying)? This question leads to some further difficulties.

Under older codes of canon law Catholics would not even have been permitted to attend a matrimonial ceremony of this kind, but under current canon law it is up to the discretion of Catholics whether they attend. Although I’m not aware of any canon law(s) binding Catholics to this, there is a common assumption among Catholics that if one attends a presumptively invalid marriage they have an obligation to make it clear that their attendance does not constitute their condoning the relationship (since there is something about it which makes it morally problematic). Michelle Arnold, writing for Catholic.com, advises Catholics as follows:

  • “The Church does not explicitly forbid Catholics from attending presumptively invalid marriages. Catholics must use their own prudential judgment in making the decision, keeping in mind the necessity to uphold the Catholic understanding of the sanctity of marriage. To make such a judgment, you might ask yourself if you believe the couple is doing the best that they can to act honorably and according to the truth that they have. For example, you might decide to attend the presumptively invalid wedding of a couple who is expecting a child (thereby attempting to provide a family for that child); but you might decline to attend the presumptively invalid wedding of a couple you know to have engaged in adultery (thereby destroying previous marriages and families).

  • While there may be just reason to attend a particular wedding that will be presumptively invalid, I cannot recommend participating as a member of the wedding party in such weddings. There is a difference between attending as a non-participating guest and actively involving yourself in the wedding.”[19]

Obviously such advice doesn’t come with any binding authority, but it does reflect a sense for where Catholic laity who are faithful to the Church land on such issues. So, if a Catholic (aware of canon law) is invited to a wedding they know will be a celebration of an invalid marriage, they will either decide to attend, or decline the invitation. If they do not attend they will undoubtedly be asked why they won’t be attending, and lying is not a (morally legitimate) option. If they do attend there is a real danger that their attendance will be understood as an endorsement and celebration of the relationship – a relationship which they believe to be objectively gravely sinful. It seems as though they would be morally compelled to inform the couple that their attendance should not be considered to indicate an unqualified approval of the relationship, but informing the couple of this fact makes the Catholic’s relationship to them vulnerable, and has the potential to harm various other relationships as well. Either option puts the Catholic in a tremendously precarious position.

This is the source of my discomfort concerning this discipline of the Church. Would it not be better for the spiritual welfare of everyone involved if the Church simply presumptively gave all Catholics this dispensation with the exception of clergymen (including the defrocked) and those from whom the Bishops have reason for actively withholding the dispensation? It seems as though it would be better, for it would increase the number of sacramental marriages, and sacraments involve supernatural grace. However, I am not expert enough in these matters to presume to advise canon lawyers, much less the Catholic Church.

Where does this leave the Catholic who finds herself in the circumstance I’ve been imagining (i.e., of being aware of canon law, and invited to attend a wedding between a non-practising Catholic and an evangelical Christian, who have not obtained a dispensation from the Church for their marriage)? As things currently stand, and although it is difficult (and requires discernment and tact), it seems to me that the Catholic does have a duty to inform the would-be spouses that, according to the teaching of the Catholic Church, their marriage isn’t a valid marriage unless they obtain a dispensation. However, one needn’t go into all the details about what this means (as though the couple wants or needs a lesson in canon law and/or Catholic moral theology). It suffices to make the couple aware that, on a technicality, from a Catholic perspective, their marriage will be ‘imperfect’ in a way which will concern them if ever they came (back) to the Catholic faith. In the eyes of the Catholic Church, the marriage will be considered invalid, so that if the content of the Catholic Church’s faith is true then the marriage will not be either sacramental or valid.

[1] I recall a quote from St. Thomas Aquinas, but I couldn’t find it. In it I recall him saying something about how it is contrary to faith to believe that the Church ever acts frivolously, and that faith enjoins us to submit to her authority even in matters of discipline. It is bothering me so much that I can’t find it – please, anyone who knows where Aquinas says something like this, share it in the comments.

[2] http://www.vatican.va/archive/ENG1104/_P3Z.HTM

[3] http://www.vatican.va/archive/ENG1104/_P3Z.HTM

[4] http://www.vatican.va/archive/ENG1104/__P3Y.HTM

[5] http://www.vatican.va/archive/ENG1104/__P44.HTM

[6] http://www.vatican.va/archive/ENG1104/__P44.HTM

[7] Augustinus Lehmkuhl, “Sacrament of Marriage,” in The Catholic Encyclopedia Vol. 9. (New York: Robert Appleton Company, 1910), April 28, 2016, http://www.newadvent.org/cathen/09707a.htm.

[8] http://www.vatican.va/archive/ENG1104/__P3V.HTM

[9] http://www.vatican.va/archive/ENG1104/_P41.HTM

[10] http://www.vatican.va/archive/ENG1104/_P40.HTM

[11] http://www.vatican.va/archive/ENG1104/__P3Y.HTM

[12] http://www.vatican.va/archive/ENG1104/_P41.HTM

[13] CCC 1857, 1859 http://www.vatican.va/archive/ENG0015/_P6C.HTM

[14] CCC 1860 http://www.vatican.va/archive/ENG0015/_P6C.HTM

[15] CCC 1793 http://www.vatican.va/archive/ccc_css/archive/catechism/p3s1c1a6.htm

[16] http://w2.vatican.va/content/benedict-xvi/en/apost_letters/documents/hf_ben-xvi_apl_20091026_codex-iuris-canonici.html

[17] http://w2.vatican.va/content/benedict-xvi/en/apost_letters/documents/hf_ben-xvi_apl_20091026_codex-iuris-canonici.html

[18] http://jimmyakin.com/2009/12/once-a-catholic.html

[19] http://www.catholic.com/blog/michelle-arnold/to-attend-or-not-to-attend

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