Annulment: Roots of a Growing Problem (1995)
If only Henry VIII had been fortunate enough to have the same tribunal system that we have in the Catholic Church today, we might have avoided the terrible rupture between Rome and England." That comment, made to me quite seriously by a fellow Catholic, reflects the dramatic change that has taken place in the marital courts of the Catholic Church.
Another comment came from an Anglican friend during a discussion of the two church's positions on divorce. At one point she smiled knowingly and rather quietly said, "Oh yes, we have divorce and you have annulments; but it all comes down to the same thing these days, now doesn't it?"
Unlike my Anglican friend, Henry VIII clearly understood the difference between an annulment and a divorce. (And not even King Henry--not even today-- could likely have rolled up seven successive annulments.) But this friendly English lady was very much aware of the relative ease of getting annulments today in the Catholic Church in the United States and in England. Given the multiplication of these declarations by the Catholic Church, she saw little practical difference between allowing divorce and allowing massive numbers of annulments. Both seemed to her simply to be pure legalisms, concocted by clergy in both churches determined to find a solution to the great problem of broken marriages–just different ways of allowing people to marry a second time in the Church.
To her mind, easy annulments were simply divorces under another name, although the process involved was much more legalistic and complicated. It was no use trying to argue the substantial differences with her; the sheer number of annulments, granted with such ease today, convinced her. Given long enough experience with the massive numbers of annulments, she believed, the Catholic Church will eventually arrive at the same conclusion: a divorce by any other name...
The annulment explosion
One thing is certain. We are indeed living in a period of Church history, at least in English-speaking countries, in which a virtual explosion of annulments is taking place. In the late 1960s, for instance, fewer than 400 annulments were granted each year in all dioceses of the United States taken together. Today, a fair number of dioceses grant more than that number each year. The Church as a whole in the United States is granting tens of thousands annually, and these numbers are growing.
Moreover, most tribunals admit that the number is actually that "low" only because many Catholics still do not understand how revised procedures have made it much easier to obtain an annulment today. In addition, many other divorced Catholics have entered a second civil marriage, but simply don't bother with the Church process because they have already concluded that all this annulment business is a legalistic sham–being used by the Church to avoid official recognition of what the enlightened believe: that divorce and remarriage is acceptable for Christians.
Moreover, the number of annulments is destined to grow in the near future, because many dioceses are now conducting regular "information sessions" to explain the process. Once the masses of Catholics in the pews understand how easy it is to obtain an annulment today, the tribunals will be even busier. Indeed at some point this new deluge of annulment petitions will swamp the local marriage tribunals, forming a backlog of cases and thus creating pressure for still quicker solutions. Sooner or later, the bishops will be forced to reexamine the whole issue more closely, and begin asking serious questions about what has really caused this annulment explosion, and what its impact is going to be on the Church's legal system and her faith in the indissolubility of the sacrament of matrimony.
Focus on efficiency
To understand what is behind this tremendous growth in the number of annulments granted today, it is important to note that, thus far, this rapid increase is taking place mainly in English-speaking countries, notably the United States, England, Canada, and Australia. If you ask the canonical experts in these countries for an explanation, they will point to two factors: the greater numbers of divorces in these countries than in most other areas with Catholic populations; and the greater efficiency of their marriage tribunals.
When he was the archbishop of Detroit, Cardinal Edmund Szoka was quite proud of the technological efficiency of his tribunal, the result of a state-of-the-art computer system he had installed, which enabled his canonists to turn out decisions (almost invariably in favor of the petitioner) in a much shorter time; the goal was to make decisions in six months or less.
If other countries are granting far fewer annulments today, say the experts, perhaps they simply have less efficient tribunals, and the resulting delays discourage possible petitioners. Nowhere does one find even the slightest concern that perhaps their smaller numbers might have something to do with a different approach to the law itself, or the possibility that tribunals in other countries may be using stricter rules of evidence in judging the validity of marriages.
This focus on efficiency may be a critical element in understanding at least one reason why the explosion is taking place today mainly in the English-speaking countries. (Given the enormous influence of Anglo-American culture on the rest of the world, it also suggests that the same dramatic growth may soon occur elsewhere.) Our culture tends to be profoundly pragmatic in its approach to solving any kind of problem, including human problems like divorce.
In A Man For All Seasons, Cromwell proposes the philosophy of problem solving that characterizes Anglophile culture and thought to this very day. (Interestingly enough, Cromwell proposes this purely pragmatic approach precisely in the context of his effort to help King Henry contract a new marriage.) It is a critical moment in the play, and perhaps in history as well, and Cromwell's words perhaps suggest one reason why we see so many annulments today. "And our job as administrators," Cromwell tells young Richard Rich, "is to make it as convenient as we can." Problems demand solutions, and the best way to solve such problems will be the way that is most convenient for everyone involved. That is the essence of this pragmatism. It is an attitude that is found at the very heart of modern Anglo-American culture and thus we should perhaps not be surprised when American churchmen speak about computers as the main reason why marriage problems are being resolved in such great numbers, so efficiently, in English-speaking tribunals.
Of course, this pragmatic attitude to solving problems cannot by itself explain the dramatic growth in annulments. Our divorce rate is itself certainly a significant element in this increase, with civil divorce among Catholics now equaling that of the general population. But this deep-seated pragmatism has also certainly had an effect, not simply in the use of technology to speed up the process, but even more on the presumption of law and the powerful determination to solve problems for people.
Church law, unlike civil law, begins with a presumption in favor of the validity of every marriage. But today pragmatism is changing that practical presumption in the minds of both tribunal officials and the Catholic public at large. Today, the very brokenness of a marriage seems to weigh in favor of a presumption of invalidity, and the task of those involved in tribunal work seems to be to find a way of legally proving this presupposed invalidity. It is not unusual today to meet even defenders of the marriage bond, tribunal officials, who share this same presumption along with advocates and even judges.
Law and psychology
However, the influence of this pragmatic approach, taken by itself, could not have produced the annulment explosion in these countries. It may explain why the explosion took place here first, but there are also factors directly related to the law of the Church that made this rapid expansion possible in the first place. These other contributing factors involve changes in the Church's marriage law in the new 1983 Code of Canon Law and with changes in legal procedures over the past 25 years. Both of these factors are connected with the growing influence of modern psychology on the Church's approach to law.
Today Church jurists have devised much broader grounds for judging the invalidity of marriages, based upon a lack of free consent. Many modern psychological theories tend to restrict the notion of human freedom, and where freedom is judged to be lacking in individuals giving the consent that establishes marriage, their marriages will be judged to be invalid. Given the presumption that all failed marriages are probably invalid, and given the heavy influence of deterministic psychologies in the world and in the Church today, the floodgates have opened.
Indeed these same deterministic theories already had had their impact on the practical moral life of Catholics, with many moral theologians downplaying the existence of sufficient freedom to commit mortal sins in their daily life, thus doing away with personal culpability for most serious sins. It is this influence of deterministic psychological theories that the Holy Father seems to be referring to in addresses to the Roman Rota, the Church's highest marriage court, when he suggests that certain false anthropologies are affecting the Church's administration of law, which can lead to the easy granting of annulments in certain countries. These anthropologies severely narrow the scope of human freedom, and either ignore or deny the effects of grace on human freedom.
To understand how jurisprudence in the area of marriage can be affected by an uncritical reliance on the conclusions of certain psychologies regarding human freedom, we must begin from the fact that a marriage is created only by a truly free act of consent of the partners. Thus there are a number of ways in which a person can claim that a marriage was never contracted, but in one way or another they will all have to do with a failure to place a valid act of consent, thereby making the marriage null.
One way a party can petition for an annulment is to claim that one or both parties in a failed marriage gave consent to something essential to marriage that they were in fact incapable of validly consenting to. For instance, if one of the partners was permanently impotent at the time of consent, his consent was invalid, and no marriage was ever established. (Since one of the essential things consented to in marriage is to give oneself to one's partner in the marriage act, the act by which marriage consent is actually consummated, the inability to consummate this act makes one incapable of giving valid consent to a marriage union.) On the other hand the fact that a person is simply sterile--not actually impotent--does not of itself invalidate consent and marriage, because consent involves merely a consent to the marriage act, and a consent to be open to children. It is not the gift of children which consummates the marriage, for it is not within anyone's power to assure that marital intercourse will ever result in a child, but simply the gift of oneself in intercourse--something that is under the dominion of each partner's free will. It is the marriage act simply open to life which, in itself, perfectly symbolizes and consummates the marriage vows in that total gift of self made in the act of consent. Thus physical impotence makes valid consent to marriage impossible, based upon a biological impediment, for one cannot consent to do what one cannot actually do.
This is the only impediment to a valid marriage that is purely physical in nature. But there are and always have been other invalidating impediments that involve the mental capacity to give free consent--that is, the freedom of the human will in itself.
Free will, consent, and discretion
It is in this area where we see the great changes in Church law related to marriage today, and here we can find the roots of the growth of annulments since the Second Vatican Council. For instance, one traditional way of demonstrating the invalidity of a marriage was by showing the lack of the necessary understanding to support an act of consent to marriage. Human freedom depends upon our actually understanding, at least essentially, what we are consenting to in contracting a marriage. Freedom and understanding go hand in hand, and are related to each other in a certain order. A basic understanding of what essentially is being chosen or consented to must precede and accompany the act of the will, or else there will not be sufficient freedom in the act of the will.
Thus a severely retarded person, who cannot possibly understand the essential nature of marriage and its essential obligations, is simply incapable of an act of placing the free consent necessary to enter marriage. This lack of understanding causes what today we refer to as a "lack of due discretion" related to the essential obligations of marriage.
The Church's law also makes it absolutely necessary for the validity of consent that the bride must have reached her 14th birthday and the groom his 16th. Since the capacity for intercourse comes earlier, it is clear that this impediment to marriage has something to do with the lack of necessary discretion among young people below those ages. The Church in her law recognizes that a greater mental discretion is necessary for the free consent to marriage than for the committing of a mortal sin.
Along the same lines, persons who are seriously mentally impaired, even temporarily, at the time of consent, whether this impairment of mental capacity be due to drugs, drunkenness, or some other grave mental pathology, simply are incapable of understanding what they are consenting to at that crucial time. This lack of due discretion makes the consent, and thus the marriage, invalid. In all of these cases, human freedom is undermined by a defect of the understanding. Some serious physiological or psychological disorder has impaired the understanding so gravely that the person does not have the necessary discretion to make an act of judgment regarding the object of consent which is sufficient to form a truly free act of consent.
Finally, there is the case of a person who has the necessary discretion to ground a sufficient act of free consent, but who also has an intention in his mind at the time of giving consent to marriage which is contradictory to-- incompatible with--the very nature of marriage or one of its essential obligations. One cannot validly consent to fulfill obligations one simultaneously intends not to fulfill. An example of this sort might occur in a marriage where one or both of the partners would intend only a trial marriage, thus contradicting the essential indissolubility of a true marriage; or where one partner intended at the very time of contracting marriage to be unfaithful to his spouse, thus contradicting the essential unity of the covenant; or where one or both partners intended absolutely to exclude any possibility of children resulting from the marriage, thus contradicting the essential ordination of marriage to offspring. In all such cases consent to marriage would be invalid. The act may be free, but it is also contradictory to the nature of marriage, and such consent is incapable of establishing a true marriage.
The divorce mentality
All of the above grounds for arguing invalidity have always been available for couples seeking to have their marriages declared invalid by the Church. Yet until the last thirty years, the era following Vatican II, the number of annulments granted by the Church worldwide was very minute indeed. The great difficulty of obtaining an annulment in the Catholic Church was widely known in the past, and it demonstrated that the Catholic Church really believed what it taught bout the permanence of marriage. Today that confidence is slipping badly in certain countries, for whatever else the result of this proliferation of annulments may be, one undeniable result is that it is creating a virtual "divorce" mentality among many Catholic. This mentality undermines the notion of the permanence of marriage in general, helping to create a phenomenon in our Church which is not substantially different from the experience of other churches which actually do permit divorce. Parish priests reveal that divorced Catholics now come to the rectories thinking that obtaining an annulment is merely a matter of filling out the necessary papers and being patient. Applicants know that many priests and tribunals will even help them to find suitable grounds, that the vast majority of cases-- reportedly 90 percent--involve some kind of psychological grounds, and that the vast majority of cases submitted result in decisions favorable to the petitioner.
Every divorced Catholic today knows of someone who has received an annulment in circumstances which he judges to be the same as, or even less promising than, his own. Catholics everywhere know cases in which relatives or friends married twenty, thirty, or forty years, sometimes with many children, have received an annulment on the grounds of immaturity and lack of due discretion at the time of marriage. Indeed, a growing number of divorced Catholics today don't bother waiting for the Church's judgment on their previous marriage; they simply enter a new civil marriage, confident that the Church will eventually declare their previous union invalid and "bless" the new one.
It is easy for Catholic leaders to protest that an annulment is not the same thing as a divorce. That is absolutely true. But when annulments are so readily available, marriages especially those experiencing grave difficulties--can be undermined as easily by a growing "annulment mentality" as by a "divorce mentality" in other churches.
A plague of good intentions
Before going any further, it is important to eliminate two possible misunderstandings. First, the dramatic growth in annulments has not, at least for the most part, been motivated by bad will. On the contrary, the situation has evolved from the sincere desire to help people with marriage problems. Second, this is not an issue which can very adequately be understood in terms of the divisions between liberals and conservatives, with the former being pegged as favoring the expansion of annulments, and the latter as against this expansion. In fact, some liberal Catholics actually tend to ignore the tribunal process, since they tend to question the Church's teaching on marriage and divorce in toto. On the other hand, conservative Catholics--whose marriages also can fail--tend to accept the Church's teaching on divorce, and hope that something can be done to allow them to lead a normal married life in the future.
Thus it is perhaps even more likely that the Catholic who bothers about an annulment today is a more traditional Catholic than those who do not, and it is often tradition- minded clergy who want to help their people get back to the sacraments.
So what more precisely has gone wrong? There is already a general sense among Catholics, and especially among those who are actually concerned with this problem who actually see it as a problem--that the contemporary trend is directly connected with new approaches to the psychological grounds for annulment. It is rare indeed that one actually hears about a case that has been decided in favor of an annulment on other than psychological grounds, and even rarer that a psychological case has not been decided in favor of the annulment. By far the most common ground cited today is the lack of due discretion necessary to give valid consent. And this lack of discretion rarely has to do with a lack of knowledge as such; in one way or another it usually involves some psychological incapacity.
As we saw above, the case for an annulment based upon a lack of due discretion in judgment is not a new one. The human will is a rational appetite precisely because it receives from the human intellect the rational objects of choice and intention. Thus if the intellect is incapable of providing the free will with truly rational objects or ends to be willed--objects or ends that are based upon a discretion of judgment proportionate to the nature of these objects or ends--the will either cannot act at all, or at least cannot elicit a sufficiently free act of consent. It has always been clear that a person who cannot understand, or does not understand, at the time of marriage consent, that marriage is a lifelong union, or that marriage demands the intention to be absolutely faithful, or that marriage has as a natural end the procreation and education of children, simply cannot elicit the necessary free consent to contract a valid marriage.
In short, under the old Code of Canon Law the "lack of due discretion" had to involve one or more of St. Augustine's three goods of marriage--or, for those who prefer the scholastic terminology exemplified in St. Thomas, the principle end of marriage and the two essential properties of the marriage contract: fidelity and indissolubility. The Church used this latter schema for the law of marriage in the 1917 Code, and established that the bride had to have at least the discretion of a 14-year-old, and the groom at least that of a 16-year-old, to give valid consent.
The new Code changed the legal terminology back to the Augustinian notion of goods of marriage, but maintained exactly the same age requirements as the old Code. Many canonists in the West, however, seem to have a problem with these age requirements, at least in Western societies, and it is almost a complete certainty that any marriage that took place today between a young woman of 14 and a young man of 16, and later failed, would be declared null on the basis of lack of due discretion. It seems that while our culture considers its children more mature and more sophisticated in nearly every other aspect of life, when it comes to marriage we see them as incapable of sufficient maturity of judgment to enter a valid marriage--not just a successful marriage, but a valid marriage, period. Indeed when it comes to failed marriages today, American tribunals will often make this judgment of "lack of due discretion" as a ground for annulment in cases where the partners are beyond the age of 14 or 16, well into their 20s and sometimes beyond.
Roots in a false anthropology
What has changed, then, to make "lack of due discretion" today so expansive when it comes to granting petitions for annulment? As we mentioned above, some of the Pope's addresses to the Roman Rota make it clear that he is concerned about the plethora of annulments in some countries, and the devastating "annulment mentality" this growth breeds; he is convinced that this growth in some part at least is due to a false anthropology that is affecting some tribunal judges' decisions related to human freedom and due discretion of judgment.
A false anthropology leads to arbitrary decisions that are destructive of truth, says the Pope. The truth he is referring to here is the truth of marriage and its permanence, the truth of human freedom, and the truth of the judicial process itself. The end result is that judges often seem to presuppose that any failed marriage indicates, by the very fact of its failure, that there must have been a lack of freedom, due most likely to a lack of due discretion, which prevented a true marriage from taking place.
What is happening in our tribunals, then, is the result of a false anthropology that tends to minimize human freedom in general, and particularly in relation to the moral life--a practical tendency in our day to minimize the capacity of people to exercise free choice, whether it be to choose freely to commit a mortal sin, or to give free consent to life-long vocations such as marriage, the priesthood, or religious life. The Pope has commented many times over the years on this destructive denial of human freedom and responsibility, and he has insisted that this negative anthropological judgment on human freedom ends by denying the role of God's grace in judging the capacity to embrace the essential obligations of the married state. It is not rash to speculate that few if any tribunals today would even think it a juridical consideration whether the partners ever took advantage of the means of grace available in the life of the Church-- confession, communion, prayer--in trying to overcome the problems in their marriage.
But the question goes beyond the effect of false anthropological assumptions. Another aspect of the problem is that many officials in our tribunals today will pick up dubious conclusions from the mine fields of modern psychology in determining where a true "serious psychological pathology" exists at the time of marriage. Under the legal procedures adopted in recent years, judges find evidence of marital troubles and declare that the roots of this later pathology were present at the time of consent, even when there is no actual evidence beyond hearsay to support this judgment.
The problem in the Code
All of these elements may have a role to play in the annulment explosion, but there is at least one other very important development which lies not in false anthropology, not in false psychology, and not even in legal procedure. There is a problem with the law itself, a problem with the new Code.
The problem in the law itself has to do with the definition of marriage and the object of consent in the new Code. If someone had asked thirty years ago, "What am I consenting to, and concerning what must I therefore have sufficient discretion to give free consent?" the answer was not hard to determine, even for those who were not canon lawyers. Marriage was defined in the old Code (canon 1013) in terms of three things: its primary end, the procreation and education of children; and the two essential properties of the marriage union, its unity and indissolubility.
Understanding unity in terms of total fidelity, and indissolubility in terms of the good of the sacrament, marriage was simply being defined in terms of the three goods of Augustine, clarified by the teaching of St. Thomas on the role of the primary end in this institution.
Therefore when someone asked thirty years ago what the partners must consent to in order to make a valid marriage, the answers were relatively simple. Under the old Code, the object of consent involves what pertains essentially to the three goods of marriage. What a man was handing over to his spouse, under this law, was very clear, and it had to do with what constituted marriage as a unique communion of life, essentially distinct from all other forms of human relationships. The old Code, in canon 1081, declared that what constituted the essential object of consent was the exclusive and perpetual right to each other's person in the act of intercourse. the act which consummates the marriage contract.
This narrowly defined object of consent made it abundantly clear exactly what it was that the partners had to have sufficient discretion of judgment about, in order to give a valid consent: they had to have knowledge (mature judgment) "at least that marriage is a permanent union between man and woman for the procreation of children." (canon 1082) And how mature did they have to be? The same canon goes on to state, "Ignorance on this point is not presumed in persons who have reached the age of maturity." This last point corresponds perfectly with the Church's regulations on the age necessary to marry, and the whole section on consent shows how the Church understands what is essential to marriage, and the consent which establishes marriage, in terms of the primary end and the other two goods of marriage.
Today, much of this old system of law has been altered in the new Code, and the result seems to have something to do with the explosion of annulments. First, the definition of marriage has been altered. The new canon law of marriage proposes a definition which excludes all the old language, involving the purposes and essential properties or marriage, and simply constructs a definition that is meant to reflect the more biblical and pastoral language found in the sections on marriage in Gaudium et Spes:
The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of the offspring... (canon 1055)
American canonists today seem to agree, virtually unanimously, that this definition constitutes a major change in the Church's jurisprudence of marriage. Indeed, even a man as conservative in his general writing as Cormac Burke, now a judge on the Rota, sees this as a significant change--although he does not regard the change as being quite as radical as most American canonists deem it. Father Burke takes the position in two recent articles, one in Communio (Summer 1992) and another in Homiletic and Pastoral Review (March 1995), that there can be but one conclusion drawn from the Council and the new Code. The Church, he tells us, now considers marriage to have two inseparably united and essential ends: the bonum coniugum, the good of the couple, and the bonum prolis, the good of offspring.
There is a problem in simply translating the terms "good" and "end" when it comes to marriage, and even Father Burke concedes that the notion of bonum coniugum "is a new term, which is only very exceptionally to be found in ecclesial writing before it was accepted in 1977 into the schemata of the new Code." However, he argues that the acceptance of this novel term in the Code as an end of marriage, is "a clear development of the personalism of Gaudium et Spes." Indeed he even argues, based upon a rather dubious reading of St. Thomas, that the Angelic Doctor's understanding of the ends of marriage, and in particular his treatment of the mutuum adiutorium (the loving support which husband and wife give each other in life, which St. Thomas defined as the secondary purpose of marriage), "moves on a basically natural and markedly earth- bound level..." Father Burke now believes that this naturalism of St. Thomas, and the seven hundred years of thought following him, has at last been overcome by the Church of the 20th Century.
There is little doubt that Cormac Burke now accepts it as certain that the Church today defines marriage with two equal and interrelated primary ends, which are the two goods mentioned in the definition of marriage in the new Code. Nonetheless he does not go so far as explicitly to deny the subordination of the old secondary ends of the 1917 Code to the end of procreation, a position that would put him squarely at odds with Pope Pius XII, and he escapes this problem by refusing to identify the older Code's ends with this new term, bonum coniugum.
The ends of marriage
Nonetheless Father Burke is convinced that a significant "development" of doctrine has taken place, and even chooses to ground this development on the remarkable argument that the Council has changed the doctrine of the hierarchy of ends by its silence. Like others who have advanced this "argument from silence," he apparently chooses to dismiss a statement by John Paul II--made in 1984, after this same Pope promulgated the new Code--which flatly denied the notion that the Council had changed the hierarchy among the ends of marriage:
In this renewed formulation, the traditional teaching on the purposes of marriage (and their hierarchy) is reaffirmed and at the same time deepened from the viewpoint of the interior life of the spouses, that is, of conjugal and family spirituality. [emphasis added]
The fact that the very same Pope who promulgated the Code now clearly states that the Council, and Paul VI, "reaffirmed" the Church's "traditional teaching" concerning the hierarchy of ends in marriage and did so in his famous series of allocutions on marriage--underscores the point.
The traditional doctrine of the hierarchy of ends has little or nothing to do with "importance" in the sense that procreation would be judged to be more important for the couple than the mutual help they give to one another, and the mutual love they share. What the hierarchy of ends established was the exact juridical nature of marriage as a bond of love and communion distinct from all others. Marriage, juridically speaking, is that partnership of love, that ontological union between a man and woman, whose specific purpose--that is, the purpose that essentially determines the specific character of this union as distinct from all other forms of loving communions--is its ordination to the procreation and education of offspring. The other ends of marriage are subordinate to this end only in the sense that they themselves receive their specific character from their relation to the end of procreation.
Calling this procreative end primary or principal does not mean that it is in itself more important than the good of the couple, or their growth in the communion of their love. It simply means that this is the principal end, because it entails a good that embraces the good of the couple and specifies the nature of their communion. The denial of this hierarchy of ends leads directly to the incomprehension as to why marriage and sex are limited to heterosexual unions, and it opens the door to the flood of annulments we see today.
Marriage is that union of life and love whose very nature ordains it to be fruitful in terms of procreating and educating children. There are other kinds of unions of love and life that are not so ordered, and other kinds of friendships, but sex within those unions is fundamentally disordered. Likewise, mutual help in marriage is a form of mutual support which in the normal course of things will be given its unique character by its own ordination to life. Surely, this mutual help extends beyond helping with the care of the children, involves far more than raising children, but its ordination to children is what makes it unique.
Obviously sex is an act intended by God to perfect the couple's love even when children do not result, so long as the intrinsic nature of the act is not deliberately distorted. Nonetheless the act itself always retains its specific nature as an act of love-- unlike the many other non-genital acts of love--by its intrinsic relation to the generation of new life--something those other acts do not possess, and cannot produce, under any circumstances.
Without hierarchy, chaos
The danger, juridically, with the so-called personalist approach to marriage arises only when this approach denies the proper ordering of married love to procreation, and the doctrine of the hierarchy of ends that reflects and interprets that order. There is a theological fruitfulness in the orthodox, personalist approach to the theology of marriage, but there are also substantial difficulties involved in transferring this approach to the area of canon law. It is these difficulties that have lead even canonists as good as Father Burke to try to identify the bonum coniugum, as a second integrated "end" of marriage, even though he tries to restrict it to the supernatural good of the sacrament. He makes it clear that he sees the great dangers that arise when one interprets this good as mutual help and the communion of life in a broad sense. It is simply not very easy to identify this good of marriage with an end of marriage. It would be better to recognize that the new Code simply omits the secondary ends of marriage, because they do not pertain to the question of validity, and then try to define the essential rights and duties of the marriage union.
The same is true with the object of consent. The new Code is problematic; even Father Burke admits that when he says that it will take much time and jurisprudence to determine the content and consequences of the new canon. In that case, either it contains new elements or it is simply vague law. Just what is the essence of this contract or covenant which is established by an irrevocable consent, by which the partners "give and accept each other?" That is a beautiful and expressive phrase, but what exactly does it imply in law? In the old Code the object of consent was clear. It was the handing over of the right to intercourse, exclusively and perpetually. With the new Code, the object of consent is not all that clear, and we are honestly told by a good canonist like Father Burke that it will take some time to determine just exactly what it is, essentially, that must be handed over in order to make the "gift of self" and thus establish a valid marriage.
The American courts have decided that the object of consent in relation to the bonum coniugum indeed involves quite a bit more than the exclusive and perpetual right to the gift of self made in the act of intercourse. They see it as an essential right to a total communion of life and love, and thus each court is developing its own personality inventories of psychological qualities necessary to make this total gift of self in marriage. Thus the essential elements of marriage, the object of the act of consent, and the bonum coniugum are now legal concepts about as broad as one can imagine, and this is the key to understanding the explosion of annulments. As one cynical friend once said to me, if you can't get a failed marriage annulled today, you must have a canon lawyer lacking in imagination.
Finally, what is marriage?
It is not simply an inadequate procedural methodology that has caused the explosion of annulments. The dramatic increase also clearly seems to be affected by an inadequate specification in canon law of just exactly what marriage is, essentially, and what the object of consent is, essentially. The early critics of this new jurisprudence, which actually came into practice during a period of experimentation prior to the promulgation of the new Code, had warned what the consequences would be if the new Code tried to adapt the language of a pastoral document from the Council into a technical, legal work like the Code. These critics even included members of the Apostolic Signatura, the Church's highest tribunal, and they turned out to be largely correct in their prognosis. But they were not prophets in any real sense, for the explosion of annulments had already begun years before the new Code, as tribunals were already operating with the new legal definitions of marriage and the object of consent, the definition of marriage with two co-equal and essential ends, including the much broader bonum coniugum, and the much broader object of consent based upon it.
So what does all this mean? Has the Church inserted something heterodox into the Code, which now must be corrected? Is the new language of the Code simply a new emphasis, or a significant alteration of the traditional doctrine of the ends? Such a change would be very difficult, if not impossible, to defend as a "development," as opposed to an outright reversal, of the position set forth by Pope Pius XII in Casti Connubi. To suggest, as Father Burke does, that the teaching of Pius XI opens a door to a new ordering of the ends of marriage because he spoke of the ultimate perfection of marriage in the supernatural life, is simply to ignore the clear teaching of that encyclical on the ends of marriage, and is to suggest that Pius XII did not really understand the implications of his predecessor when he again reaffirmed this same teaching on the hierarchy of ends and the subordination of all other ends to the end of procreation.
However, there is no need for anyone to defend the orthodoxy of the Code. All one has to do is take serious the teaching of the very same Pope who promulgated this new Code when he spoke out on the issue of the hierarchy of ends just months later, and then we are on our way to a clarification of the Code. There has indeed been a deepening of our understanding of the doctrine of the ends today, but this deepening involves our understanding, and it leaves the doctrine of the hierarchy of ends intact.
The new canon defining marriage chooses to do so in terms of the goods of marriage rather than its ends. One of those goods, procreation, bonum prolis, is in reality the essential--in both the ontological and juridical sense specifying the end of marriage, as a communion of life and love. The other good, the bonum coniugum, can be understood as including a relation to all three traditional goods--children, fidelity, and indissolubility. Children are a good for the parents, contributing greatly to their human development and perfection, both naturally and supernaturally, as Vatican II says. In this aspect, the two bona are virtually identical.
Fidelity is another essential element of the bonum coniugum, because it is an essential quality of the love and the partnership it engenders, and contributes to the perfection of the partners and the raising of children. Indissolubility is likewise an essential element related to the bonum coniugum because it is essential to the partnership and the love that arises from that communion of life and perfects it, and is also protective of the broader family. The necessary discretion to contract a marriage, the necessary psychic capacity to assume marriage and its essential obligations, pertains to these essential elements, the three bona of St. Augustine, which include the essential end of St. Thomas, just as they always have.
The object of consent likewise must pertain to these essential rights, handed over in this mutual gift of self, which necessarily includes fidelity, permanence and fruitfulness, in relation to that act which incarnates that kind of love. It is a permanent right, because such love is fixed until death--a right to the act of intercourse which "embodies" that love, which is exclusive, which betokens fidelity, and which naturally is open to life because its totality includes the gift of fertility. It is a marvelous development of our understanding of the older Code's right to the body, but it is not a radical departure in any way from that older expression of the object of consent.
We face a choice: Either the marriage tribunals must interpret the new language of the Code along these lines, or they will witness ever-growing chaos. If the bonum coniugum and the mutual gift of self that constitutes the object of consent are defined as including the right to a happy marriage, to a partner with a mature personality and to whatever else pertains to this dimension of conjugal communion, the annulment explosion will continue to grow worse. There will no longer be good and bad marriages in the Catholic Church, but only good and invalid marriages. The Code must be given an authoritative interpretation on these matters sooner or later, if the range of grounds for annulments is to be kept rational. If it's too much later, the damage to the faith of the Catholic people regarding the permanence of marriage is going to be very painful to correct.
"Polonaise," a pastor and teacher with advanced degrees in both systematic theology and marriage and family, wrote and submitted this essay on the mistaken assumption that Catholic World Report did not intend to identify the author. CWR regrets the decision that Polonaise has made--to write under a pseudonym, in order to avoid giving offense to parishioners who have, in good conscience, sought and received annulments. Nevertheless, because we did not want to deprive our readers of his insights, we have consented to his request of anonymity. Because we believe that this essay could spark an important and enlightening debate between authors of unquestioned orthodoxy, we have asked Father Cormac Burke to respond to this essay in a future issue.
This article appeared in the June 1995 issue of The Catholic World Report.
