Thursday, January 28, 2010

Concrete Proposals vis a vis Orthodoxy: Remarriage

One crux between the Catholics and the Orthodox that would seemingly have real practical effects, but which (perhaps for that very reason) is not as much discussed as more theoretical issues (the Filioque, Purgatory, etc) the disparate traditions on Remarriage.

Of course, it is perhaps common now for Catholics to simply imagine "recasting" the Orthodox divorces as "annulments" and not say too much more on the issue.

And, for the most part, I think that's true. Certainly in the First Millennium there was not some long tribunal process. When remarriage did occur, annulment was with the simple permission of the bishop. And we Catholics can hardly talk given how many annulments are given now (perhaps for good reason).

However, the issue is a bit more complicated than that. I've discussed this with Orthodox, and they are not entirely satisfied with simply drawing an equivalent between their divorces and our annulments.

The Orthodox I've talked to have pointed out that both Catholics and Orthodox have "ecclesiastical divorce" AND "annulment," though we emphasize the latter and they the former. For example, the Orthodox would, in fact, admit the concept of "annulment" for a marriage that had obvious natural defects (such as if it turned out to be incestuous or if one of the parties was still married). Then, they believe, truly it could be said that no marriage of any sort ever validly took place. Conversely, Catholics, they point out, have "ecclesiastical divorce" too, in the dissolution of marriages ratified but unconsummated, and in the Pauline and Petrine Privileges "in favor of the faith" which are true dissolutions rather than annulments, albeit not of a validly ratified and consummated Sacrament.

The biggest "problem" the Orthodox have with simply interpreting their divorces as "annulments" that they find it downright ridiculous to say that "nothing happened" when a couple clearly exchanged vows in a church, had sex, bought a house together, had children, etc. Our canonical concept of the apparent or "putative" marriage (whereby the children are still legitimate under current practice, etc) strikes them, I think correctly, as a highly legalistic loophole. The Orthodox are very concerned that pretending that "nothing" happened in an annulment downplays the severity and tragedy of an intimate human relationship collapsing, of the common life once established being torn apart, which is true on a practical and emotional level whether or not there was ever theoretically an indissoluble Sacramental bond to worry about (ie, that's not the only concern), hence their penitential emphasis in subsequent marriages.

To them, and they have a point, it looks like we're allowing a divorce, but trying to pretend like "nothing happened" to "save the appearances" of absolute indissolubility, which is disingenuous especially when there is no clear defect of form, but rather the vague "psychological defect" requiring a "process" investigation. In the Orthodox mindset, they allow the divorce under "oikonomia" (pastoral lenience) but then the later marriages are done in a Penitential spirit. They also dislike the "uncertainty" that annulments (especially for that nebulous and invisible "psychological" defect) seem to introduce into all marriages (ie, if "putative marriages" seemed real for years before being annulled, maybe your current marriage isn't either!)

At the same time, as a Catholic, I feel that Christ's absolute prohibition of divorce ("except in cases of unlawfulness") has to mean something. He didn't portray it as merely an "ideal" like the evangelical counsels...but as a principle he was restoring in direct contrast to the bills of divorce allowed for the ancient Jews due to weakness.

So...I think each side has something to offer the other, and can offer it without actually changing the concrete practice on either side, nor anything that they hold as dogmatic, though I'd encourage the West to change some of its canon-legal terminology to reduce confusion.

What I propose is certainly just my musings as an amateur, so if you find anything inadmissible in it, please warn me. However, I think it a relatively sound harmonizing of the two positions without compromising either.

There is of course a difference between natural marriages and the fully ratified and consummated Sacrament of Matrimony. The Church already admits that natural marriages may be dissolved for good reason, that it is not entirely against the primary precepts of the natural law (though neither is polygamy). It was present in the Law (and even God cannot dispense from primary precepts of the natural law, which are based on Logic itself), and remains in the Church in the Pauline and Petrine privileges. In fact, even a Sacramental marriage that is ratified but not consummated may be dissolved.

My proposal then is that, perhaps, the concept of a "putative marriage" needs to be rephrased a bit on the Catholic side. The Orthodox are right: it is disingenuous to say that absolutely "nothing" happened, as if it were all a legal fiction. There may not have been an indissoluble spiritual bond created, but that's different from saying that "nothing" happened that can be called a marriage. There was (except in rare cases like incest) a valid legal marriage, a true marriage for all social intents and purposes. And isn't that all a "valid natural marriage" means anyway??

I think then that, rather than this legalistic concept of a "putative marriage"...the Church should starting calling the marriage prior to an annulment a true "natural marriage". Not the indissoluble Sacrament, but still as much a marriage as the marriage between two Jews or two pagans or a Jew and a Christian or a pagan and a Christian, etc. And such marriages, as we know, are dissoluble, "in favor of the faith" especially.

The West could then speak of TWO events taking place before a remarriage. The first, the annulment, would be interpreted not as a declaration that "nothing" happened, but that the marriage did not fulfill all the requirements to be an indissoluble Sacrament. It would, however, usually still have been a valid natural marriage...and so there would be an implicit dissolution of this in the permission to remarry.

The canonical principle that "two Christians can either form a full Sacrament, or absolutely nothing at all" needs to be re-examined. It may well be true that there is no provision in Revelation for a deliberate merely natural marriage between two Christians. Which is to say, deliberately causing a Sacrament-invalidating defect for the sake of obtaining a purely natural marriage with another Christian for whatever reason...would be a grave sin, just as doing the same to obtain a merely "putative"/legal marriage is now (though, in either cause, the natural or putative marriage still exists). But I don't think it would contradict any dogmas (current canon law is a different question) to believe that when an attempt at the Sacrament of Matrimony "falls short" still might be a valid natural marriage (which, after all, merely means a marriage valid socially that is not a Sacrament).

If it took place in the Church according to the Church ritual...we might even call it a sacramental and the source of actual graces, even if not a Sacrament with an increase in sanctifying grace. The Orthodox, by the way, make no such strong distinction between sacramentals and Sacraments proper, so even if they insisted on insisting that the previous marriage had still been a "holy mystery" or "sacrament" we must understand that in the light of the fact that they have a broader understanding of the term that covers both our concept of Sacrament and "mere" sacramentals.

Even if an invisible "psychological defect" of consent existed at the moment of the marriage...the "uncertainty" that possibility would cast over all marriages would be less of a concern, because (all the other requirements being met), canon law could provide that such a marriage would become instantly validly ratified the moment either party did finally release full consent in their mind, allowing a previously (but invisibly) "tentative" marriage like that to become the fully indissoluble sacrament without needing a complicated convalidation or sanation.

The Catholics having admitted all this, the Orthodox would probably be more comfortable with us "interpreting" their divorces as implicitly containing the annulment aspect too. As really BOTH of our processes would involve BOTH an annulment AND a dissolution of a marriage. The West would still emphasize the determination that the marriage had not reached the level of a full Indissoluble Sacrament, and the dissolution of the resultant merely natural marriage would be implicit. The Orthodox would emphasize the dissolution of the natural marriage (and thus the penitential aspect of new marriages), but the permission of the bishop to remarry would be taken as tacitly implying that the old marriage hadn't reached the level of the full indissoluble Sacrament (in the Western sense).


George said...

i've never been comfortable with the term "putative marriage" either. as you say, a marriage for all natural intents and purposes did happen even if it "fell short" of a full supernatural sacrament. recognizing this I would agree would go a long way towards making annulments seem less like a legalistic loophole, and help to emphasize (as the east does) that either way a human relationship broke down, even it hadnt reached the level of an undissolvable bond for whatever reason.

A Sinner said...

Pope Benedict made an interesting statement to the Roman Rota about not giving easy annulments as a matter of "justice".

I suppose one thing we often fail to consider when thinking about treating annulments "pastorally" is that, sometimes...there is a partner who DOESNT WANT the annulment. Who thinks the marriage was valid and still wants to try to work things out.

I also think that children complicate the situation and should give the tribunals (and the couple) pause. Especially then, people should try to work it out (they got married in the first place for SOME reason, they must have had some sort of connection on some level).

However, while many Christians are against "no fault divorce"...I think that trying to blackmail people into staying together unhappily by holding financial or other penalties over their heads is stupid. If the only reason they're staying together is because they don't want to lose money in a "fault divorce"...that's hardly a good reason.

When the marriage totally falls apart and BOTH parties want to move on...I think the Orthodox have a point in just assuming that such a marriage did not reach the level of total indissolubility for whatever reason and letting them move on with their lives (albeit with a penitential emphasis).

There is something sadistic about the trad emphasis on keeping people together and controlling their sexuality by force; again, like with mandatory celibacy, this belief that we legislate the ideal into existence and everyone just has to suck it up, with little sympathy for human frailty.

Amy said...

Wonderful post! I think your ideas are clear and pragmatic, except towards the end: "The canonical principle that 'two Christians can either form a full Sacrament, or absolutely nothing at all' needs to be re-examined". Re-examining is fine and well, but this paragraph leaves me unsatisfied. You do not seem to suggest how exactly two Christians could fail to contract a sacramental marriage while succeeding in contracting a natural one. Aren't the potential failings involved in each case the same (coercion, active desire to not have children, insanity, etc.)?

A Sinner said...

"You do not seem to suggest how exactly two Christians could fail to contract a sacramental marriage while succeeding in contracting a natural one. Aren't the potential failings involved in each case the same (coercion, active desire to not have children, insanity, etc.)?"

Ah, well, here's the thing: there are two types of defects in marriages, those that are clearly "natural" defects which would be defects even in a marriage between two non-Catholics, two Jews, two pagans (like incest, coercion, the woman being already married, the two people being of the same sex, etc)...and then there are those defects which are merely canonical, which are simply defects "of form" (the rules about witnesses, permissions from the Church, even aspects of the "psychological maturity" one)

So, no, the defects are not entirely the same. There are Canonically imposed defects (which can be dispensed from already) and which could be re-interpreted as invalidating the Sacrament while not necessarily invalidating the natural ("putative") marriage.

Amy said...

Ahh okay I see what you mean now! I have wondered about that myself before. For example, since Trent, clandestine marriages have been considered not only illicit but invalid. I accept that because of faith but I don't altogether understand it. Can the Church change metaphysics with decrees? Of course not. Perhaps your solution is a good middle road!

A Sinner said...

Well, marriage being essentially a contract...the Church as lawmaker does have the power to make conditions for not only the licitity of marriage, but the validity of the Sacrament. Because, it is said, in marriage licitity and validity are basically the same thing, marriage being essentially a "legal" arrangement.

However, while I'd say these canonically imposed impediments can invalidate the Sacrament, I don't see why they'd invalidate the Natural Marriage too (except under the theory that Christians either contract a Sacrament or nothing at all; ie, a "putative marriage" which seems such a legalistic concept).

Some things are natural impediments. Incest, the people being of the same sex, being already married, etc. These would invalidate the marriage, period. But canonically imposed defects that are not of the Natural the one about clandestine marriage, I can see invalidating the Sacrament, but not the Natural Marriage. The Church has jurisdiction over the Sacraments, but not over Nature.