Mons. Mario F. Pompedda

This article treats the delicate question of admitting to the sacraments people who have been divorced and have entered into a second civil “marriage”, who are motivated, or so it is believed, by a conviction of conscience that their marriage is null, but who cannot introduce a case of nullity because they lack the proofs required b procedural law. We are treating the topic from the specific standpoint of its relationship to and reflection of canonical norms, that is, the procedure established by the Church for declaring the nullity of a marriage.

Thus we are prescinding from the purely moral or theological aspect, which is not per se posed by the question as it is formulated above; neither are we treating the sensitive topic of the pastoral care of the divorce who have remarried (cf. ch,. IV, part IV of the Apostolic Exhortation Familiaris consortio). Having thus defined the topic of this commentary, we can present it as follows.

Canon 130 of the new Code of Canon Law

1) First and foremost, it is necessary to bring to the reader’s attention the reminder made in canon 130 of the new Code of Canon Law, which states: “The power of governance is normally exercised in the external forum, but sometimes it is exercised in the internal forum only, but in such a way that the effects which its exercise normally has in the external forum are not acknowledged in this forum except as is established by law in certain instances”.

The canon clearly refers to the power of governance, also known as jurisdiction: however, one of the basic canonical principles, and most of all a theological one, is that in the Church there is no power – ordinary or delegated, proper or vicarious – which does not derive from a person who can legitimately bestow it: either through conferral of an office (and then the power is ordinary) or through a particular grant (and then it is delegated). Thus it follows that in no case can the judgement of an expert, however well informed and prudent, substitute for the exercise of that jurisdiction which is public but which remains exclusively in the private sphere.

Tackling a problem immediately related to our topic, we must consequently asset that the judgement of one’s confessor as to whether or not a marriage is valid must still be considered a private opinion because, since marriage is an external, juridical, social and ecclesial act, he has no competence in regard to it, nor had he received from anyone jurisdiction to judge it, since his office must be limited to the judgement and exercise of sacramental jurisdiction.

Conscience and external juridical status

2) This point involves another aspect of the complex problem, and in this regard we must consider the frequent reference to “personal conviction”, to the “well-founded conviction of conscience”. In other words, conscience is contrasted with – or even put in opposition to – one’s juridical standing, this is, the external situation; in this area, too, explanations are needed. For now let us leave aside the question whether there can ever really (that is, not – abstractly) be a conflict between conscience and one’s external juridical status, we shall discuss this later. The problem shall be treated first of all in relation to the conviction of conscience and the sacrament of marriage.

Let us also prescind from examining the basis for a possible conviction of conscience: we shall treat that topic later as well. Initially the problem is much more general and involves the Catholic understanding of the relationship between conscience and ecclesial society, it also involves the very idea of marriage, whether it is an act with importance for society or one of purely private concern. It does not seem to be in accord with Catholic doctrine to pose a conflict between the subjective, individual conscience and the Church’s judgement – and therefore, power of jurisdiction – or even to hypothesize about its possibility; this savors more of Protestant concepts.

However, we must put aside this doctrinal and clearly theological, dogmatic aspect, even though it would need to be developed in its complex entirely as it relates to this topic. Returning to the juridical field, we cannot insist enough on the public, social and ecclesial nature of marriage; it is not a private matter. This is true not only because it depends on a substantial canonical form of celebration and is regulated by the Church’s intervention (in its preparation, admission, in the act itself and the consequent state), but rather, and most of all, because of its social nature and position if then, as is true in regard to the hypotheses under consideration, we add that it is a question of marriage as a sacrament, the description we have made is even more obvious.

From this fact we should make a general, abstract deduction that when we really (later we will discuss the possibility of this) are faced with a conflict between a conviction of conscience and an external judgment (coming from a person has effective power of governance or jurisdiction) regarding the evaluation of a marriage, the judgement of the person exercising legitimate jurisdiction must necessarily prevail.

However, in this hypothetical discussion there is a ambiguous use of the term “conscience”. When the latter refers to judgement of ethical behaviour involving the voluntary, conscious participation in one’s own act, there is no doubt that it is the highest court of judgement (presupposing, of course, the necessary conditions which exclude any error in judgement); however, we cannot say the same about a judgement regarding “juridical value” in reference to natural as well as to positive law, because it no longer is a question of moral conscience, but rather of the evaluation of an objective situation which is autonomous per se and therefore cannot be confused with the ethical nature of the act itself.

Explanatory Excursus

3) Here, however, we need to make a brief explanatory excursus

It is, in fact, still a source of ambiguity to oppose the right to another marriage, in reference to a previous marriage and its certain nullity, to the procedural norms which would not allow such a certain nullity, to the procedural norms which would not allow such a certainty to be reached. We have said “procedural norms” but there is also a certain equivocation involved, because others speak of “procedural proofs”. Let it be clarified once and for all: if by norm we mean the regulation of a process, it is common knowledge that this derives from the positive law of the Church and can therefore be modified and is, in fact, adapted to various needs according to time and circumstance; however, it could never be required absolutely nor could it ever be an impediment to establishing a proof. If this proof is “procedural”, it is called so only because of the manner in which it is obtained; however, it is called so only because of the manner in which it is obtained; however, it is certainly not substantially different from what is meant by “proof” in common parlance.

All the above must be quite clear, so that we do not end up describing as “proof” something which cannot deserve to be called such procedurally or in any other sense required by common human prudence. However, the problem is not one of reemphasizing – since it is so obvious – that the existence of objective invalidity makes the subject objectively free to contract a new marriage; it is rather a question of establishing with moral certitude whether or not such nullity exists. It would be absurd to identify objective nullity with conscientious conviction: such conviction is by its nature subjective and therefore cannot be confused with the former. However, the whole matter will become even clearer from what follows.

4) Thus there is the essential problem of the basis of such a conviction; we must immediately distinguish, however, between the two different hypotheses involved; either the conviction is entirely subjective, that is, reached by the subject on his own, or he has reached it with the help of others, experts or otherwise.

5) Before proceeding, however, it would be helpful to get down to the practical level for a moment, so that the reader will not miss the point we are about to make. It is no simple matter to judge or formulate an objective opinion on the nullity of a marriage; proof of this is the fact that in these cases not only does the Church follow a very cautious procedure, but she also demands that two concordant decisions be handed down by competent tribunals in order for the judgement to be definitive and executive; cases of marital nullity must be judged by collegial tribunals consisting of three judges.

All of this is on the formal or procedural level, so to speak. If we consider the substance of the matter, no one can ignore the fact that in individual cases ascertaining the condition or circumstances that may have invalidated a marriage is always a complex task; it involves question concerning the correct interpretation and application of the norms of natural and positive law; it is always a question of proving that the abstract norm applies in a concrete case. This is never a simple task, but often, and almost always, a complex one. Only the prudence, experience and full understanding of the norm on the part of astute and well-prepared judges can guarantee the existence of an invalidating factor in the individual case under consideration.

If further illustration needs to be given, we can immediately and easily demonstrate the complexity of a judgement regarding the unity of a marriage: in addition to cases which concern the substantial form of the celebration or the existence of impediments that are easy to recognize and prove, there are all the cases which concern the presence, integrity and sufficiency of consent, in which a judgement is very complex, so much so that some cases also require the help of an expert. In this context, it is very difficult to understand how anyone could give priority to a subjective conviction and neglect the judgement made in the external forum by experienced judges, a judgement which is well-considered, competent and enlightened by the proofs offered by experts. One would be hard-pressed to do this from the standpoint of human prudence, let alone on the level procedural law.

6) Having made these remarks on the concrete level, let us turn now to the two distinct hypotheses formulated above: the first is that the subject himself has a conviction which it is impossible for others to share. Here we are considering a person who in good faith holds that his own marriage is null, but who cannot provide others with the reasons for this conviction: this is a hypothesis which we present only in the abstract, but which must be kept in mind in order to understand our topic in its entirety. Such a situation presupposes the subject’s knowledge of and competence in marriage law, which, except in the case of jurists, and more precisely, canonists, is almost impossible to verify in reality. A sprinkling of law more specifically, of canon law or even a certain knowledge of it is definitely not enough for making a reasoned, prudent judgement with moral certitude in his matter. What we have just seen in a general way should demonstrate this assertion.

There is another element to be taken into consideration: if it is true that no one can be his own judge or judge his own case, it is also true that the interest (understood in its broadest sense, and therefore also on the moral and spiritual level) in giving such a judgement involving his own status of freedom, especially since it has juridical and oral effects regarding his own person, can distort and, as has been psychologically proven, in fact always distorts the subject’s perception of objective reality. Therefore, it is not clear, or a t least not easy to ascertain, how subjective conscience, even one which the person has acquired in good faith, can be in agreement with the objective reality.

There is a further point to be made, however. Given the public nature of the marriage bond public in the sense as summarized above- it seems inadmissible that a judgement on it, that is, about its validity, can fall within the competence of a private subject, a subject whose judgement is necessarily motivated by personal interest, as stated above.

The great risk of moral relativism

7) Now let us turn to the other hypothesis, that is, the one in which the person reaches a morally certain conviction about the validity of his own marriage through the judgement of persons who are expert in the field. It seems to me that on this point we have serious mistakes which are very dangerous and give rise especially to theories that ultimately subvert the very concept of the Church; we will try to proceed with clarity in a general summary. In this regard, we should make some reference to canonical procedures, specifically in cases regarding the nullity of marriage, however, a single observation will have to suffice.

If, in the hypothesis proposed, we are considering a marriage which the subject is morally certain is null, a knowledge which is also (or, it would be better to say, especially) acquire by utilizing the judgement of experts, it is not clear how-presupposing, as one must, that these persons base their judgement on adjective, certain, proven, clear, unambiguous, conclusive and, above all, valid facts – using the same facts as proof, a similar moral certitude could not be acquired through the ordinary process, that is, by those who by their office in the Church have the legitimate mandate to judge.

Therefore, to oppose moral certitude in the internal forum (conscience) to that of the external forum could mean that it is a question of two different cases of moral certitude: one with an objective basis and the other founded upon arbitrary criteria which, however, do not deserve to be considered as certitude, but rather as mere opinion. As one can see, we are faced not merely with subversion for the very concept of moral certitude, but are rather in the presence of an attempt to make subjective opinion prevail over objective truth: relativism – first philosophical, then moral – would gain the upper hand.

8) However, there is still the whole discussion mentioned above deriving from the very nature of marriage: an eminently public act which, as a natural institution, concerns the community, and even more so as a sacrament of the Church. To attribute, or rather to claim, competence, that is the power to judge in its regard without having a specific mandate, is an infraction against the very order of the Church. It will be said that these other person’s only assist the subject in making a judgement in the forum of conscience and that, de facto in the final analysis, it is only the person’s conscience which can form its own conviction, its own moral certitude; however, this only leads us back to the previous hypothesis and, therefore, to its consequences.

9) There is, however, another even more concrete point to be considered without entering into a casuistry which is neither appropriate nor necessary. It is claimed that there can be, and indeed truly are, cases in which the person is morally certain about the nullity of his own marriage, but this nullity cannot be proved in the ordinary manner by the canonical process. Here too, if one does not want to impose a mistaken notion of moral certitude, as was pointed out above, it is a question of misunderstandings or at least of presuppositions which must be proved.

Ample criteria for judgement in the canonical norms

Keeping in mind the observation made previously about the ambiguous, indiscriminate use of “norm” and procedural “proof”, we must add something else here.

It is not necessary to mention that a canonical process, specifically as regards the nullity of marriage, is very human and lacking in nonessential formalism. However, the question which could seem more difficult is the one involving the ground of nullity based on the unexpressed intention of one or both partners, which would seem indemonstrable, as they say, “in the external forum”. Even though the problem exists, however, and is not easy to solve, it has not been ignored by jurisprudence and judicial practice. It is connected with the similar problem regarding the existence of only one witness capable of testifying in a case.

However, canonical norms in this regard are rich in equity and have a whole range of evaluative criteria. For example, the probative value of the declarations made by the parties concerned, namely, the spouses, is expressly recognized (can. 1536, $2); nor do the norms exclude the possibility that such declarations, if corroborated by other facts, as is also true for the statement of a witness confirmed by objective and personal circumstances (can. 1573), can also constitute full proof in cases such as the nullity of marriage. In this regard it is necessary to recall some procedural norms which serve to re-enforce these assertions and give them substance.

Until the promulgation of the 1983 Code of Canon Law, the principle in force regarding evidence in cases of marital nullity was that established in article 117 of the Instruction Provida Mater of 15 August 1936, published by the Congregation for the Sacraments, according to which the judicial deposition of the spouses was not suitable for proving the nullity of a marriage. This principle, we must admit, was based on a pessimistic view of man, who would be ready to lie on his own behalf, even though it might be justified theoretically on the basic principle common to all legal proceedings that no one is capable of giving evidence to his own advantage. However, if the norm could be justified and, we might say, be required by a legitimate concern for prudence, especially since we are dealing with so serious a question as the validity of marriage, nevertheless the demands of the natural law must not be forgotten.

Thus in a provision (Decree with Instruction) published by the Congregation of the Holy Office by virtue of an audience of 12 November 1947 and printed in April 1951 we find some very significant statements. The document concerned the catholic community of Sweden, and gave instruction not only of a procedural nature, given the particular conditions of that population, but also evaluative principles of great importance. First of all, full recognition is given to the probative vale of sworn confession by both spouses as sufficient to prove the nullity of marriage even in the external forum; also, the confession of only one of the spouses in the matter, with the concurrence of valid reasons for his being considered credible, could avail for the other spouse. Above all it is necessary to draw from that document the assertion that, taking only the natural law into account, full moral certitude about the nullity of a marriage can be reached from the declaration alone of one or both parties, it naturally being presupposed that their truthfulness in beyond all doubt.

Moreover, the jurisprudence of Tribunal of the Roman Rota (Cf. Cardinal P. Felici in Communications. IX, n. 1, 1977, pp. 175-184) has consistently taken this approach. The norms contained in the 1983 Code is in complete accord with this directive, as has been stated.

10) Therefore, in summary, to emphasize the requirements of the canonical process should not lead to the conclusion that the proofs for nullity are so rigid as to prevent moral certitude from being reached in numerous cases; on the contrary, it is only in very rare and exceptional cases that such a difficulty could occur. Perhaps some might see a difficulty when there are facts or circumstances the public disclosure of which (in a sentence) risks causing moral or material harm to any of the persons involved. here, too, it is not superfluous to recall the fundamental principle of canonical procedure that, save for the right of defense, confidentiality and privacy can and must be safeguarded at all times.

To summarize in other words: it would be purely academic to hypothesize about the existence of cases in which moral certitude could be reached only in the internal forum, that is, in conscience; such cases would be so rare that they should be considered practically nonexistent.

The fundamental good of the Church’s activity

11) From the standpoint of canonical legislation, this is in substance the question of allowing the divorced and remarried to receive the sacraments; however, we must also mention various concrete situations in which a person might find himself.

First of all, situation of the divorced and remarried means an anomalous condition, that is, a new union that is not valid at least for lack of canonical form; in other words, if it were true that the first marriage were objectively invalid and the party could therefore contract a new marriage, since the latter would not have been celebrated with the proper form, it would not be marriage but mere concubinage. Therefore, as long as this situation persists it is not clear how someone could be allowed to receive the sacraments licitly.

There is also the situation of individuals who are joined in a civil marriage after a divorce in the preceding unions of both partners; in this case we could be faced with a situation in which perhaps one of the two could be aware of the nullity of his previous marriage, but this would not be the case for the other. Therefore, if one of them is objectively free because his previous marriage was null, the same would not be true for the other, and hence a new union between the two would not be possible. In such cases how could one justify allowing one or both of them to receive the sacraments?

Above all, however, we must consider the situation of those who have tried to obtain a declaration of nullity regarding their marriage from an ecclesiastical tribunal, but who have received a negative decision in this case they cannot prudently allow their personal, private judgement to prevail, even if it is the judgement of qualified persons, over the formal, public judgement of the tribunal legitimately established by ecclesiastical authority; this is particularly true when these qualified persons base themselves only on the statements of the parties involved, but ignore the whole series of acts which comprise the instruction of the case and the sentences delivered.

In any case, and last of all, we must emphasize the necessity of referring to the legitimate authority of the Church; the tribunals have fulfilled their task but the parties involved maintain that a proof could be considered valid in the forum of their own conscience; leaving aside the judgement of persons however authoritative, they should appeal to the Holy See, that is, to the competent dicasteries of the Roman Curia. The good of souls, the basis and final cause of all the Church’s activity, and even more so of canonical legislation, will allow formal difficulties to be overcome, if any exist. If, however, a basis for nullity is substantially lacking, obedience and a spirit of faith suggest that the person should submit to the Church’s judgement, which can never be opposed with a dangerous subjectivism that departs from the very idea of ecclesial society.