The Church and divorce

Kevin Mayhew
Mrs. Jacqueline Kennedy's marriage on Sunday to Mr. Aristotle Onassis has highlighted the Catholic Church's attitude to divorce. In this interview : Kevi Mayhew puts questions to Fr. Ralph Brown, Vice Officialis of the Marriage Tribunal of the West inster Archdiocese.
WhUt is the Church's atti•ude to divorce?
THE current attitude, which is no different from the previous one, is that a V alid, sacramental, consummated union is indissoluble "till death do us part."
nu can have a marriage
whiqh is valid and sacramental but not consummated and in certain circunistances the Pope can be petitioned for a dispensaticln. If a dispensation is granted, and assuming that it contains no restrictive clauke then the couple can re-niarry. Yo u can have a marriage i whi h is valid and consummat d but not sacramental in the sense that for a marriage to be sacramental you need two baptised parties If one of the parties is not Ibaptised then the marriag cannot be sacrameijtat.
II such a marriage has broken down a petition can be put to the Holy Father asking for a dissolution on the rounds that it was not a s$crament. The Pope has po er to dissolve nonsac amental unions in favour of the Faith.
Lret me give you a case history to illustrate this. Imagine a case where the person petitioning married when he was, say, 20 and wa not baptised when he ma tried. The marriage broke down because the wife ran off with someone else. He was left with two children and subsequently he :became a Catholic.
Then during his instruc tion he learnt about the Church's teaching on this matter that marriage is a sacrament only when both parties are baptised so he says to the priest: "Well, what about my case'?"
The priest then would refer it to the tribunal and the tribunal would investigate the circumstances, and have to show positively and negatively that he was not baptised — positively by taking evidence from. say, his parents and older relatives and negatively by searching the baptismal registers.
Assuming that he was not the guilty party, responsible for the breakdown of the marriage and assuming that there were good reasons why he should re-marry then a petition can be put to the Holy Father.
Again a marriage may not be valid for a number of reasons; for example a person may enter into marriage under grave pressure from parents; or one of the parties can enter marriage unsound of mind, a schizophrenic.
To enter marriage validly each party must at least implicitly intend to transfer the rights of his or her own body over to the other person. That is to say a person would at least allow the other party the possibility of children. If one party had a proven contrary intention then the marriage could be declared invalid.
A person might go into marriage with the intention of getting a divorce if the marriage does not work out. Then that person is not entering into a marriage which involves permanence. Or a person may go into marriage intending to be unfaithful. That one is not very frequent as a case for nullity because it is extraordinarily difficult to prove, and very few jeople have that sort of intention.
A person may even go into marriage not intending to get married. Again difficult to prove, but if it can, then the marriage can be set aside as non-existent. The last ground relates to the matter of impotence, male or female. But that, more often than not, is dealt with on the basis of a non-consummation case, because of the difficulty of proving impotence.
/ can see the desirability of keeping the lines of communication open in the case, say. where one of the parties never had any intention of getting married, but in the case of the nonbaptised person it seems to me to be the luck of the draw. A's marriage breaks down so he rushed around to discover loopholes and finds that his wife was never baptised. B's marriage breaks down and because he has no loophole he can never re-marry.
There are two separate points here. One point is a possible comment on the law itself and secondly a comment on the motives of people when their marriages have broken down.
To deal with the first one you've got to define marriage, and marriage is defined as a sacrament. Theologians agree that if you are going to have a sacrament of marriage you can't split it down the middle. You've got to have two baptised parties. If one of these parties is not baptised then you have a non sacramental union, and then the Pope's prerogatives in terms of an ordinary union, not a sacramental union, can be exercised.
It's a bit like saying : "Keep off the grass." You've got to have a line drawn somewhere.
Now the second point. Obviously, if a person's marriage has broken down it is obvious that that person will say, especially if the first marriage took place when he was a nonCatholic: "Is there any possibility of me contracting another marriage? I want a mother or father for my children. I want to live an ordinary, happy marital life which I never had with my first partner."
Now it may be that that looks like shopping around for means to put an end to the marriage, but people are human beings. This is what the Church is concerned with. It is not concerned with robots who say : "Well, I've made a contract, bang, bang, bang. That's it." People weaken. People change their minds.
Yes, but some people mind—those whose marriages meet the Church's demands for a valid, sacra
mental, consummated union. These people cannot weaken, but your fellem who is not baptised can.
Oh no, you may indeed weaken if your marriage broke down. You may say: "Well, the Church cannot do anything for me. I've got to remarry and I'll marry outside the Church."
But then I don't ger the benefits of the Church, but the fellow who has found the loophole does.
This is true, but we are back to the first point concerning a definition. You arc always going to have elements on either side of the law where you are climbing up to your razor edge and climbing down from it.
But that's the nature of the law—it draws lines which do not go round corners. One could say, now this is a very dishonourable thing because this person had all the best intentions when they got married, and now the thing has broken down they are looking for loopholes.
But what you would be saying is: Though the law is that, though there would be • a loophole under the law a person cannot take advantage of it. Well, that's not how the law is administered. is it?
Perhaps you would say I ant being emotional rather than logical, but my concern is with the person whose marriage has broken down and who has 40 years of celibate life to look forward to. Yet another person who has found a loophole can re-marry.
This is what makes one weep almost every time one sees a person whom one cannot help.
What about the Catholics who marry in a register office with the best intentions for the future of their marriage and who later find it doesn't work out? They have a loophole, I have a basic distaste for loopholes anyway, but this seems to he an extraordinarily bad one.
A lot of Canon lawyers regard this as a bad law, and a lot of them have been calling for a revision of that situation simply be, cause it does look so much like a loophole. There is no question of those people who take advantage of this loophole employing a legal fiddle.
It is quite proper, but on the other hand Canon lawyers do argue that if the intentions were sincere at the time of marriage then you are affording to this particular person a remedy concerning a marriage which earlier on was intended to be permanent.
This is true, and many canon lawyers are calling for a revision of that law so that a marriage which takes place between two baptised persons in a register office or in a non-Catholic church is always at least valid if not lawful.
But you must understand that the job we do here is not merely administering a law. We regard our function as primarily pastoral. That is, to enable people to get to the sacraments in so far as it is possible. No reasonable priest would be in this work if that was not his object. If there was not a pastoral end to our work, if it was merely the administration of the law, we wouldn't be in the job. We are priests first and then only canon lawyers.
Has there been any change at all in the Church's attitude to divorce?
You could say that there has been a change in this sense that the Church, though it does not recognise the terminative effect of civil divorce, is prepared to give permission for a divorce to be obtained where civil effects are desirable. For instance, in a case where one of the partties is a rotter and the other party needs to have custody of the children to remove them from a corruptive influence, or where a woman is in financial difficulties and needs a permanent arrangement for maintenance.
The Pope's encyclical on birth control has come to be recognised by some as an ideal and they accept that though people ,nay fall below that ideal they should still frequent the sacraments. Is the indissolubility of marriage a similar ideal? Can those who are divorced and have remarried go to the sacraments?
Well, it does happen that where a brother and sister arrangement can be effected the bishop may give permission for the reception of the sacraments provided no scandal is caused. This does not mean that the couple have to be able to foresee that in no circumstance whatever will there ever again be intercourse. We never talk in terms of sin that way. We say that we are going to try not to sin again.
Obviously if they are a very young couple this is hardly a practical measure. If, perhaps, they are older, and perhaps they already have children and they are prepared to make this grave, grave sacrifice—and there is no question but that everybody here is well aware that it is a terrible sacrifice and may cause grave psychological harm —then the bishop can give permission for the people concerned to receive the sacraments.
I know that a lot has been written about this question of people receiving the sacraments even though they have been divorced and have re-married and are living as husband and wife. But the teaching of the Church is perfectly clear about that.
Is there likely to be a change in this teaching?
I've really no idea. Shall we say that from the point of view of pastoral practice I can see that perhaps, in the future, a different view could be taken of the extent of certainty which is required for parties not living together as husband and wife.
But I can't really see a change, otherwise what you're saying is: "Yes, all right if you're re-married you can go to the sacraments." Thus, what you really mean is: "Well, you can have a sort of second class marriage!" But the point is, the Church's teaching about marriage doesn't allow for any second class sort.
I'm confused, and I'm sure a lot of other people are too, about Mrs. Kennedy's wedding. Can you explain the situation?
I know nothing more than I have read in the newspapers. So far as I understand it you have got a situation of a man who was validly married, so far as it appears, to his first wife and whose first wife obtained in Alabama a decree of divorce.
Whether or not that has been recognised by the Orthodox Church as an ecclesiastical divorce I don't know. You understand that the Orthodox Church does grant divorces in certain circumstances.
Are these divorces recognised by the Roman Catholic Church?
No.
So, in other words, even if the Orthodox Church has recognised Mr. Onassis's divorce, the Catholic Church will not give the go ahead?
Yes, that's correct. But there is another point. It has been suggested in some of the newspapers that maybe the nature of the recognition of this Alabaman divorce could be in terms not of an ecclesiastical divorce but of a decree of nullity. It has been suggested also that this might be recognised by the Roman Catholic Church.
I don't see this myself because as far as I know the Eastern Church does not normally grant decrees 'of nullity because they already have got the system of divorce.
However. if, for some reason, this was put in terms of a decree of nullity still don't see that the Roman Catholic Church could accept it because the Church would have to go into the grounds on which this was granted to make certain that they are identical to the grounds which are recognised for the nullification of marriage in the Roman Catholic Church.
if Mrs. Kennedy puts in an application to Rome for the recognition of her marriage to Mr. Onassis will her application be treated any differently to an application by Mrs. Smith of Birmingham, bearing in mind that Mrs. Kennedy is very rich, she is friendly with those in high ecclesiastical places and she is a world figure? Will her application be speeded up, will it be given preferential treatment?
There is a Canon in the
Code of Canon Law which says that nullity cases concerning the Heads of State and their sons and daughters and their successors are not within the competence of ordinary diocesan courts; and therefore come directly within the competence of the Holy Father.
The interpretation of that Canon could be fairly wide so that Mrs. Kennedy would probably come under it.
But the reason for that Canon is to avoid scandal and, furthermore, if such cases were dealt with in a local tribunal there could be suspicion that decisions had been given because of outside pressures. Therefore, it is withdrawn from local tribunal and goes to the Pope. He will appoint people to deal with the case.
However, if, for instance, a case such as the present one was withdrawn from the public gaze so that nobody knew what happened and the eventual result, one way or the other, was scandal, such scandal would have to be averted at all costs because of the harm that can be done to souls throughout, the world.
That is my view and it would be the view of every priest, that if, for instance, there was some loophole here, which is produced and which is not available to your Mrs. Smith, this would cause the gravest scandal quite apart from being unjust and the Holy Father would not allow it.