– With special reference to Marital Breakdown) – George V. Lobo, s.j.
Canon Law is a service in building up the Church, the Spirit-filled community of faith and love.
“While attributing a primacy to love, grace and charism, it facilitates an orderly development in the life of ecclesial society and individual persons who are its members.” (John Paul II Ap. Const. promulgating CIC).
Current approach to Moral theology is person-centered (not act-centered nor law centered) and value based.
1) Paternalistic paradigm: Voluntaristic, subjectivist; leads to infantilism and immaturity
2) Human Rights paradigm: objective; based on theological insights and human values.
A genuine pastoral approach is to defend the dignity and promote the right of the members of the Church. The preoccupation should be to foster Kingdom values of love, truth, trust, freedom, justice and collaboration.
‘Pastoral’ also implies, inculturation and ecumenical outlook
In the area of Marriage, the Church has a double role:
1) Prophetic: To uphold the sanctity and indissolubility of Christian marriage (in the context of widespread divorce). This indirectly contributes to personal good (calling for lifelong fidelity).
2) More directly pastoral: To promote the rights and welfare of individual partners. This indirectly contributes to the common good of the Church and society.
The Church has now to face increasing incidents of marital breakdown and irregular unions. What is the moralist’s perspective in applying canon law in this crucial sphere?
I. Stress importance of marriage preparation and guidance
– need for realizing the depth of sacramentality of Christian marriage based on the baptismal consecration and call to form a ‘domestic church’.
– moral norms regarding sexuality and marital fidelity to be proposed in an inspirational way, the nobility of sexual union to be brought out.
– in an increasingly nuclear pattern of the family, need for initiating the couple in fulfilling the emotional needs of each other.
– the shift from institutional to covenantal concept of marriage minimizing clannish and dowry based arrangements.
– need for adequate counseling services to handle marital tensions and bring about reconciliation in case of marital breakdown.
II. Tribunal procedure for annulment must be expeditious with due regard for the sanctity of the marriage bond.
– Grounds for annulment to be carefully assessed, avoid theories that would make the majority of marriages seem invalid! (problem regarding liberality in allowing marriages and then in annulling them).
– Can. 1060: “Marriage enjoys the favour of law”, to be taken seriously, but not too rigidly. In human matters, often moral certitude suffices.
– Annulment (unlike privilege of the faith), is not a favour or privilege. It is a right when there is sufficient ground. When the first marriage is objectively invalid, the partners have a strict right (unless there is incapacity) to enter into a new union. It is not even a question of ‘remarriage’ since the first bond is invalid).
– Hence tribunal personnel, other canonists and pastors have a corresponding strict duty to fulfil the role assigned to them or to render a service they can.
– Any scandal or surprise at an annulment among the simple must be handled with proper explanation, especially the clear distinction between ‘declaration of nullity’ and ‘breaking an existing bond’. On this occasion, it should be made quite clear that marriages entered into by reason of force or grave fear imposed from outside are just null and in the eyes of the Church.
When a person is fully convinced with sufficient ground that his or her existing union is invalid, but cannot prove it in the external forum:
1) Either due to the negligence of the tribunal, or
2) Due to lack of proof, there is a conflict between the internal and external forum. There is an objective right to enter into a new union; but this right cannot be vindicated in the external forum.
It is not easy to resolve this conflict. The person must realize the duty not to disturb the ecclesial order or not to jeopardize the indissolubility of Christian marriage. However, his or her right to remarry cannot be brushed aside.
Here moral reflection would suggest that the person consider the matter seriously before God and follow the dictates of an enlightened conscience, guided by prudent advisors. He or she may come to the conscientious decision of entering into a new union in an ambience that would not create grave disturbance among the faithful. One may also consider whether the ‘extraordinary form’ would not apply, especially if the problem arose due to the grave negligence of those concerned in the annulment procedure.
This solution cannot be generalized. Otherwise, the sanctity of Christian marriage would be affected. The problem should be resolved as far as possible by proper annulment procedures in a spirit of equality.
III. Sacraments to those in irregular unions?
– Now it is evident that there is need for sympathy and pastoral solicitude. It may not always be God’s will that they should separate when there are factors like the interest of children.
– The traditional norm requiring the couple to abstain from sexual union as per-requisite for admission to the sacraments need not be brushed aside.
– But what if it is not feasible in practice? Familiaris Consortio, 1981, still holds to the exclusion of sacraments (NN. 74, 84). However, the matter needs further consideration. The conflict of values will have to be attended to.
IV. Cases of mixed marriages should be individually examined.
– Clear distinction should be made between inter-church and inter-religious marriage. the first is to be seen in the ecumenical perspective while the second within the context of greater interreligious understanding, while the difficulties involved in different types of mixed marriages are not to be ignored.
– Note that Matrimonia Mixta, 1970 had proposed ‘joint pastoral care’ to aid the couple to foster unity of their conjugal and family life.
– Mixed marriages with non-Christians, particularly Muslims, pose very serious difficulties, but need not be entirely ruled out. To pressurize the non-Christian to receive Baptism is not advisable.
Matrimonial Mixta, and now the new Code does not require absolute promise on the part of the Catholic party to bring up the children as Catholics. The wording used ‘to do all in his or her power….’ Was deliberately chosen and hence the question may be asked whether a particular diocese may indiscriminately require an absolute promise. Apart from the juridical formulation the question must also be examined from the moral point of view regarding the nature or the promise required of parents in this matter and the manner of implementing it.
Likewise, the requirement of Can. 1127,3 forbidding another religious celebration before or after the canonical celebration ‘for the purpose of giving matrimonial consent’ admits of different interpretations. Hence, would a Vedic a ceremony be out if it is made clear that the Church recognizes only the canonical ceremony as far as the validity of marriage is concerned?
The articles of Mrs. Astrid Lobo Gajiwala in Vidya Jyoti July, Aug., 1989, though with some misconceptions, may be an eye opener in this matter.
Much of the problem could be solved if we adopt Hindu or tribal ceremonies in the spirit of Can. 1120. The reception of Holy Communion by the non-Catholic Christian partner on the occasion of the celebration (and later) needs a more liberal consideration, taking into account all the factors in a given case.