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Wednesday, January 4, 2012

Divorce in the Catholic Church, part I

In the last post, I brought up a theological problem that presents itself to us unsolved - namely, that it seems to be common knowledge that the Catholic Church forbids divorce, and yet as a matter of fact real actual divorces and ecclesiastical marriages were granted by the Catholic Church and permitted by canon law until the canons were collected, recompilated, and edited again in 1917.  By the "Catholic Church", I am of course referring to those Eastern Churches in union with Rome who brought the practice of divorce with them from Orthodoxy.  Yet Rome acknowledges us to be just as Catholic as the Pope; when one says "the Catholic Church", he could be equally referring to either the Latin Church sui juris or any of the Eastern Churches sui juris.

Yes, divorces were granted by the Catholic Church - albeit never in the Roman Rite - until the 20th century. The practice of the Catholic Church must be valid, and it is the duty of the theologian to defend and explain the teachings of the Church - taking the deposit of Faith as a datum that must be explained and never departed from.

The Roman Catholic Church has made it abundantly clear over and over again that holy matrimony is indissoluble.  "What God has joined together, let no man rend asunder."  As the Catechism of the Catholic Church states (CCC 2382), "Between the baptized, "a ratified and consummated marriage cannot be dissolved by any human power or for any reason other than death." (Codix Iuris Canonicis, 141)."  The remarriage of divorced couples is usually blessed by the annulment process, finding grounds (often quite tortured grounds) for declaring the marriage to have been null from the beginning.  Within the Orthodox Church, however, one or even two divorces and ecclesiastical remarriages are granted, with no pretense of the marriages having been null from the beginning, and this practice was brought with the Eastern Catholics through the various Unias.

How are we to explain this?  First, let us document the fact that this happened.  Donald Attwater has been quoted as mention that the Bulgarians preserved canonical divorces after Unia.  Following Attwater, Churches of the Christian East, the following document from the EWTN resource library records the Melkites as having canonical divorces:

The Ruthenian or Carpatho-Rusyn practice of divorce was stated by Protopresbyter Bryan Eyman, of the Eparchy of Parma, OH, on December 31, 2011, in the course of explaning our status as Byzantine Orthodox (not Roman Catholic) Christians in communion with Rome :

We do not believe in the Filioque [we properly proclaim the Nicene Creed as written without addition.] We use Leaven Bread for the Eucharist. Since we do NOT have a traditional teaching of inherited guilt [St. Augustine et. al.] we do not need an
Immaculate Conception." We believe in the distinction between the knowledge of the Divine Essence and the Divine Energies, since St. Gregory Palamas is a saint on our calendar, and considored a Father in our Church. Like the Apostolic Church we celebrate the Mysteries of Initiation [Baptism, Chrismation, and Eucharist] in unity at any age. And the normal Minister of this Mystery is the Presbyter [Priest]. For centuries after the various Church Unions the Byzantine Catholic Churches continued the practice of permitting remarriage after the granting of an ecclesiastical divorce. [with appropriate penance etc.] And although it is not the present practice in the CCEO, because we believe the minister of marriage is the priest or bishop, to grant a decree of nullity logically would call into question the minister rather than the receivers of the Mystery. [But that is a very complicated issue, beyond the scope of this writing.] we do not, as Byzantine Catholics, have a division between the Holy Mysteries and the various objects used in the Holy Mysteries, or thos objects used in both public and private piety.

I shall now attempt to scratch the surface of that very complicated issue.
First of all, we should recognize that such a decree is not an annullment.  It is a divorce, the ending of a marriage that was once perfectly valid.  So there was nothing deficient in the minister who performed the wedding - a valid marriage, but humans wrecked it by sin.
Indeed, it seems that the minister of the Sacrament is key to explaining why divorce should be permitted by the Catholic Church in the Eastern Rite but not in the West.  In the West, the priest is only a witness to the Sacrament.  The minister of the sacrament is the married couple themselves, and through their ministry, they are joined inseparably by God.
In the East, the Church confers marriage rather than just witnessing it.  The priest, acting in the person of the Church, is the minister of the Mystery, not the married couple.  (Cf. Paul Evdokimov, The Sacrament of Love)  And the Church has something which the married couple does not - the power of binding and loosing.  "What you bind on earth is bound in Heaven, and what you loose on Earth is loosed in Heaven".  If the Church confers a marriage in Christ's name, then they can dissolve it by the authority of the keys.  On the other hand, if the Church only witnesses a marriage, then it does not come from them.  The Church sanctified it, but it was not Hers to give - and therefore not Hers to break.  Divorce in the Western Rite is therefore invalid.
This by no means confers any superiority to the East because we are ontologically capable of divorcing and remarrying.  We also have an abhorrence to legalism; we ask not what is permissible but rather what is holy.  Divorce is a sin.  I quote extensively from the Orthodox Archbishop Athenagoras of Sinope, who argues that divorce is a violation of Christ's command that marriage be indissoluble, and therefore a sin, but not an ontological impossibility, and therefore something which is permitted out of economia, the Church's compassion for humanity in its weakness.  My comments shall be in blue (I would do red, but Fr. Zuhlsdorf got to that first!):


Doctrine regarding the indissolubility of marriage is based on its holiness. The holiness and indissolubility of marriage exalt monogamy. References are often made to the Old Testament in this regard (Mal. 2, 14).

But as mystery or sacrament the Christian marriage is undoubtedly confronted with the “fallen” state of mankind. It is presented as the unachievable ideal. But there is a distinct difference between a “sacrament” and an “ideal”, for the first is “an experience involving not only man, but one in which he acts in communion with God”, in this he becomes a partner of the Holy Spirit while remaining human with his weaknesses and faults.[16]
The theory of the indissolubility of marriage has a strong pedagogical significance. The motivation Christ gives is a command. Those who commit themselves to the covenant of marriage should do all they can not to separate, as they have God to thank for their oneness. But the additional motivation: “Therefore what God has joined together, let man not separate.” (Mark 10, 9; Math. 19, 6) does not signify a magical adherence [bold mine]. In every mystery or sacrament, excluding baptism, the exertion of man’s free will is required. The “not separate” is a divine request, as is “do not kill”. But man is free and can dissolve his marriage and kill his fellow man. In both cases he commits grievous sin.
[In other words, when Christ declared marriage indissoluble, He was commanding us not to dissolve it - He was not declaring it a metaphysical impossibility.  Indeed, this is actually good exegesis.  Moses permitted divorce out of the hardness of our hearts.  But Christ gives us a new command - calls us up to a higher standard.  He also gives us the graces to live up to that standard, which is why matrimony is a holy Mystery or Sacrament.  But the fact that it is a Sacrament does not in and of itself make it indissoluble - its indissolubility come from the fact that man and wife become one flesh.  Man and wife became one flesh under natural marriage, recognized by the Church as true marriages, and yet divorces were permitted here.]


The problem of divorce is a very delicate question as it often touches on a painful human reality.

We may recall here the analogy that Paul makes between the unity of Christ and his Church and that of the bride and bridegroom. This analogy that is as it were at the root of the mystery assumes the real and continuing unity of the married couple, which therefore totally excludes a simultaneous polygamy and views one single marriage as the ideal.  [The Eastern Church, Catholic or Orthodox, assigns canonical penances for all second marriages, whether the first one ended in divorce or widowhood.  Marriage really is or should be for all eternity.  How could one give one's entire self as a "life's companion" in the perfect unity of one flesh to multiple women?  How could one love multiple wives fully?]
Divorce does not heal the diseased marriage but kills it. It is not a positive action or intervention. It is about dissolving the “mini-Church” that has been formed through the marriage relationship.  The Holy Scripture attributes divorce to the callousness of man.  This is seen as a fall and sin. And yet the Orthodox Church can however permit divorce and remarriage on the grounds of interpretation of what the Lord says in Matt. 19, 9: “I tell you that anyone who divorces his wife, except for marital unfaithfulness, and marries another woman commits adultery.”  [This is a weak argument - porneia, translated here as "marital unfaithfulness", is probably better taken as "fornication", or a union with a "wife" who was not really a wife, much like the Samaritan woman at the well who had five husbands who were not her husbands.] According to Bishop Kallistos Ware divorce is an action of “economia” and “expression of compassion” of the Church toward sinful man. “Since Christ, according to the Matthaean account, allowed an exception to His general ruling about the indissolubility of marriage, the Orthodox Church also is willing to allow an exception”.  [It does not seem that Christ was not explicitly allowing an exception to His general ruling on the indissolubility of marriage - even within Orthodoxy divorces and annulments must be granted by the Church - but the Church is the Body of Christ and speaks with His authority, and if She is willing to allow an exception, then it is Christ speaking through Her.]
 A question we can ask ourselves is whether Christ considered marriage as being indissoluble? We need to be very clear in this as when Christ teaches that marriage may not be dissolved that does not mean that He is stating that it cannot occur. The completeness of the marriage relationship can be tainted by erroneous behaviour. In other words, it is the offence that breaks the bond. The divorce is ultimately a result of this break. This is also the teaching of the Eastern Church fathers. A quotation from the testimony of Cyril of Alexandria will be sufficient to make our point here: “It is not the letters of divorce that dissolve the marriage in relation God but the errant behaviour”.
According to the spirit of Orthodoxy the unity of the married couple cannot be maintained through the virtue of juridical obligation alone; the formal unity must be consistent with an internal symphony.  [This is important.  The East permits divorces because of its abhorrence of legalism and hypocrisy.  And I respect this much more than the Latin practice of abusing the annullment system - 80% of annulments where one spouses wants the other back and appeals to the Vatican are overturned, and God knows how many phony annulments are granted that are not appealed - because it at least is honest and genuine, and calls sin what it is.] The problem arises when it is no longer possible to salvage anything of this symphony, for “then the bond that was originally considered indissoluble is already dissolved and the law can offer nothing to replace grace and can neither heal nor resurrect, nor say: ‘Stand up and go’”.

The Church recognizes that there are cases in which marriage life has no content or may even lead to loss of the soul. The Holy John Chrysostom says in this regard that: “better to break the covenant than to lose one’s soul”.  Nevertheless, the Orthodox Church sees divorce as a tragedy due to human weakness and sin.


Despite the fact that the Church condemns sin, she also desires to be an aid to those who suffer and for whom she may allow a second marriage. This is certainly the case when the marriage has ceased to be a reality. A possible second marriage is therefore only permitted because of “human weakness”. As the apostle Paul says concerning the unmarried and widows: “If they can not control themselves, they should marry” (1 Cor. 7, 9). It is permitted as a pastoral concession in the context of “economia,” to the human weakness and the corrupt world in which we live.

There is in other words a close relationship in every dimension between divorce and the possibility of remarriage. It is important here to explain a fundamental element of the Orthodox Church’s doctrine, namely that the dissolving of a marriage relationship does not ipso facto grant the right to enter into another marriage[Emphasis mine.] As we look back to the time of the primitive Church, the Church of the first centuries, then we will have to agree that the Church did not have any juridical authority with regard to marriage, and did not therefore, make any statement concerning their validity. The Holy Basil the Great, for example, referred not to a rule but to usage, as far as this problem was concerned. Speaking concerning the man who had been cheated by his wife, he declares that the man is “pardonable” (to be excused) should he remarry. It is good to remember that the Orthodox Church has in general always had a sense of reluctance regarding second marriages. It would subsequently be completely wrong to assert that Orthodox Christians may marry two or three times!

Orthodox canon law can permit a second and even a third marriage “in economia”, but strictly forbids a fourth. In theory divorce is only recognized in the case of adultery, but in practise is also recognised in light of other reasons. There is a list of causes of divorce acceptable to the Orthodox Church. In practise the bishops sometimes apply “economia” in a liberal way. By the way, divorce and remarriage are only permitted in the context of “economia”, that is, out of pastoral care, out of understanding for weakness. A second or third marriage will always be a deviation from the “ideal and unique marriage”, but often a fresh opportunity to correct a mistake”.

I will examine what Rome has officially said about divorce in a third post.  Is this view of divorce compatible with Catholic teaching?


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