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Tuesday, 15 December 2009

The new Motu Proprio and a pastoral doubt

Two changes were announced today in the Code of Canon law via an Apostolic Letter Motu Proprio Data, "Omnium in Mentem." (OIM) The first change concerns the nature of the diaconate. OIM clarifies that deacons do not receive the faculty of acting "in the person of Christ the Head" but the "power of serving the people of God in the service of the liturgy, the word and charity." This change has some important theological implications for the sacrament of Holy Order but that is perhaps for another day.

Pastorally, the greater impact will be felt from the change to the law concerning marriage. You can read more on the "In the Light of the Law" blog of Ed Peters. Anna Arco of the Catholic Herald also has a good article with an illustrative case: What the new Motu Proprio really means.

Up until now (in fact, up until three months after the Motu Proprio is published in the Acta Apostolicae Sedis), a Catholic who has formally defected from the faith can marry validly without observing the proper canonical form - for example in a civil ceremony in a Register Office.

The new law will make it possible for such apostate Catholics to gain a nullity for their marriage on the ground of defect of form - such a nullity is relatively easy to obtain, being simply a documentary process. If you can prove that the person was Catholic (by a baptismal certificate) and that the marriage was not re-validated (by letters of freedom from the parishes where the couple lived together), then you get the nullity.

Such nullities from defect of form are already fairly common in pastoral practice - it is a rare exception for there to be a difficulty caused by someone actually making a formal defection from the faith. The pastoral question which troubles me is the fairness and rightness of such nullities in the first place.

The question goes back to the Council of Trent which tackled the problem of clandestine marriages. The Council's decree Tametsi declared that such marriages henceforth were invalid. It did this for the very good reason that it was easy to repudiate a marriage at which there were no witnesses - and great injustice could thus ensue. Henceforth, marriages were to be conducted before a priest and at least two witnesses or they would be invalid. The Council of Trent also affirmed the important principle that since the form of marriage was a legal contract, the Church could impose an invalidating impediment. So far, so good.

In 1908, the decree Ne Temere attempted to clarify the matter further. It was made an invalidating impediment for Catholics to marry without the proper form of the Church - and it was explicitly laid down that the marriages of non-Catholics were recognised as valid if they used a form that was lawful for them. That all seems good - Catholics should marry in Church but the Church does not attempt to legislate for the natural marriages of others, which should be respected. Even in the case of baptised non-Catholics, their own laws were respected.

However, the practical consequences are not so pretty. A parish priest is faced quite frequently with cases of people who wish to have their marriage annulled. If a Catholic has married in a register office, the marriage is declared null and void by rubber stamp once the relevant documentation has been collected together. This may be a grave injustice to the non-Catholic party if the Catholic has simply decided to repudiate the marriage and go off with someone else. In the case of a non-Catholic who has got married in a register office to another non-Catholic, the marriage is valid unless the whole process of nullity according to "lack of the necessary discretionary judgement" or "inability to undertake and sustain the vows of marriage" is completed over a lengthy period of time with the interviewing of witnesses, judgement, and referral to the tribunal of second instance.

At the heart of the matter is the Catholic teaching from the earliest centuries that it is consent that makes the marriage - not a ceremony, a blessing, or cohabitation, but the formally given consent. It does seem right to require Catholics to marry according to the form laid down by the Church but the consequences of making marriages "automatically" invalid, even when they have been conscientiously entered into, with a formal exchange of consent, by means of a civil ceremony, are pastorally problematic.

An unintended consequence of the present law, deriving from Trent, is that civil marriages are regarded as of little consequence and we seem to connive at the secular downgrading of marriage. The presumed validity of such marriages entered into by non-Catholics is salt in the wound when genuine troubles arise. If it is observed that Catholics can repudiate such marriages relatively easily, there is a real risk of scandal.

To set your mind at rest, let me say that I conscientiously observe all the provisions of canon law and when couples bring problems to my doorstep I do all that I can to help them - my duty is to help them live within the law and benefit from it, not to change it on my own authority.

The law on marriage has always been problematic and it is not surprising that attempts to adjust it have consequences that are less than perfect. For all the good that the new adjustment will bring, I think that there are also serious problems with the way that things are set up at the moment.
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