Fr. George Kureethra

In September this year a meeting of a few canonists was held in Bangalore at which Fr. Aloysius D’Souza presented a paper on ‘Novus Habitus Mentis’ and quoted Fr. Ladislaus Orsy according to whom “a new habit of the mind means a permanent disposition to raise new questions whenever it is so warranted by a gap in our knowledge and to search for an answer as long as that gap remains open”. It is necessary that we raise questions about the working of Marriage Tribunals in our county and find solutions to the problems that face us.

Vatican II

After Vatican II, canon law has never been static, but dynamic. Especially in the field of tribunal practice and jurisprudence with regard to annulments there have been revolutionary changes, which some consider as scandalous.

The Council made many new discoveries. It gave us a new theology of marriage. And since Canon Law is the practical application of Theology to concrete situations, there have been great changes in the laws and procedures that affect marriage. The Council has given us very deep insights into the meaning and purpose of marriage. This, naturally, has made a great impact on canonical jurisprudence.

The Council also stressed a change from the spirit of affirmation to a spirit of enquiry. We are to take a fresh look at the mysteries of our faith from the realm of the spirit. The Council’s new insights into the theology of marriage make it imperative on our part to take a new look at tribunal work.

Changes in Attitudes

Canon Law cannot remain in isolation. Canon Law must move with the Church. A new dynamism has been injected into the Church by the Council, and Canon Law cannot remain aloof. There has been, for example, a shift from legalism to pastoral concern. The Lord’s dictum ‘sabbath was made for man, and not man for sabbath’ is read in canonical circles as ‘law is for man, not man for law’.

One of the ten fundamental principles that guided the revision of the Code was that “pastoral care should be the hallmark of the Code. The Code should be neither simply a hortatory document not on the other hand an overly perceptive one. Laws should be marked by a spirit of charity, temperance, humaneness, and moderation Norms should not be too rigid; they should have a reasonable amount of discretionary authority in the hands of the Church’s pastoral leaders.” Authority is today understood as service; rather, “we have begun to take more seriously the teaching of the Lord, “whoever would be great among you must be your servant” (MK 10, 43).

Pope John Paul II, while promulgating the new Code, stated in his apostolic constitution: “Among the elements which characterize the true and genuine image of the Church we should emphasize especially the following: the doctrine in hierarchical authority as service.” Tribunal workers should, therefore, consider themselves as primarily servants of the people of God, shedding every vestige of authoritarianism, unavailability and bureaucracy. ‘There has been a radical shift from ‘imperium’ to communio.’

Ecumenical Dimension

There has also been a shift in the attitude of the Church to ‘heretics’ and ‘shismatics’. From condemnation and avoidance there has been a shift towards acceptance and collaboration. There is an awareness that it is possible for us to learn from other churches. This has particular relevance to matrimonial matters. Neither the Orthodox nor the Protestants (mainline) accept divorce. But their attitude towards the divorced and remarried is very different from that of the Catholic Church. There is much to learn from other churches. The Protestants do not permit marriages of divorcees, but they do not deny communion to divorcee who have remarried, or those who have married ‘outside the church’. The Orthodox have all along practiced ‘divine economy’ to permit the remarriages of innocent parties who have been abandoned by their partners. There are in fact many Catholic canonists who think that ‘oikonomia’ of the Orthodox is a more excellent way (cfr. Canon Law society of Australia and New Zealand, Newsletter, spring 1992). The 1980 Synod on family had voted in favour of the statement: “Moved by pastoral concern for these faithful, this Synod calls for a new and extensive study to increase the effectiveness of pastoral care. This study should take into account the practices of the Eastern Churches’. This was however not included by the Holy Father in his ‘Familiaris Consortio’.

Fr. Humphrey O’Leary C.S.S.R. writes: “At the 1990 conference of the Canon Law Society of Australia and New Zealand, Fr. Gus Mendonca communicated with clarity and an impressive command of his subject the current jurisprudence of the Rota regarding the grounds for annulment. On the final morning of the conference, I found myself at breakfast with Fr. Mendonca. Having reservations about current Western practice, the temptation to raise the problem was too great. With some diffidence I put forward that thesis of this paper,that the time had come to examine whether oikonomia, rather than the tribunal, might be the preferred path for handling questions of re-marriage. I expected to have my views rubbished. To my astonishment (and delight) Gus agreed warmly. “Oikonomia is the way,” he said. We did not argue, just agreed.”

Fr. Bernand Haring C.S.S.R. has authorized a book, No way Out? (St. Paul’s Publications, Slough, 1989) in which he points out the inadequacies of the Western Church’s present discipline regarding those seeking to enter a second marriage. He considers the oikonomia of the orthodox to be a discipline we should recognize as legitimate.

Healing Ministry

The most important change in attitude, as far as tribunal work is concerned, is to understand that tribunal work is a part of the healing ministry of the Church. Jesus declared his mission as a ministry of healing: “The Spirit of the Lord has been given to me, for he has anointed me. He has sent me to bring the good news to the poor, to proclaim liberty to captives and to the blind new sight, to set the downtrodden free, to proclaim the Lord’s year of favour (LK 4, 16-22). The role of the marriage tribunal too is to bring good news (not bad news) to the broken-hearted, to liberate those who are caught in the quagmire of dejection, despondency and misery, weighed down by the feeling of being ostracized by society and the Church because of their marital situation. Tribunal workers are dealing with people who have been badly hurt emotionally and spiritually at a point that touches them profoundly: a failed marriage.

An accusation commonly leveled at tribunal workers is that they are unsympathetic, hardhearted and cruel celibates who have no inkling of the trauma a petitioner has gone through: of rejection by one’s own life partner, rejection by the relatives, rejection by society, and even rejection by the Church. The petitioner is often overcome by a sense of guilt that he or she was perhaps the cause of the marriage failure. Having escaped from the shackles on an unhappy marriage, they are facing new problem: loneliness, advancing age, fear for future, risk of entering another unhappy union, the enormous difficulty in finding a new partner, financial problems parenting problems, fears of revenge from the former spouse, etc.

When a petitioner comes seeking the help of the tribunal he or she is a badly broken person, looking for healing from the visible representatives of the God of compassion and love. Psychologists tell us that often the experience of a partner to a broken marriage is the same as of one who has faced the death of a dear one: Shock, denial, anger, bargaining, depression, and final acceptance. It is of extreme importance therefore that a tribunal worker should look upon himself as a healer and not a tormentor. This attitude must dominate throughout the entire process, from the moment the petitioner comes for a preliminary chat, through the initial contacts of helping to draw up a petition, summoning, interview, right up to the termination of the case. The tribunal worker should be available, be a good listener, compassionate, helpful, ready to explore every possibility of bringing solace to the person.

If the interviewer is a sympathetic listener, he can be helping the interviewee a great deal to understand his own self and some of the factors that led to the breakdown of the marriage. The interview can provide the person with the opportunity to speak about hurts and guilt which have been kept locked away, conflicts with relatives and society, unhappy childhood, traumatic experiences, moral aberrations, wasted opportunities etc. The confidentiality of the tribunal interview provides a safety value to vent one’s hurt feelings.

Alienation from the Church

The petitioner who approaches the tribunal is often alienated from the Church and is in need of reconciliation. The alienation may have been caused by unhelpful priests, fellow Catholics, or their own sense of shame or failure. The Pope says: “The Church, which was sent to lead to salvation all people and especially the baptized, cannot abandon to their own devices those who have been previously bound by sacramental marriage and who have attempted a second marriage. The Church will therefore make untiring efforts to put at their disposal her means of salvation. Pastors must know that, for the sake of truth, they are obliged to exercise careful discernment of situations. There is in fact a difference between those who have sincerely tried to save their first marriage and have been unjustly abandoned, and those who through their own grave fault have destroyed a canonically valid marriage. Finally, there are those who have entered into a second union for the sake of the children’s upbringing, and who are sometimes subjectively certain in conscience that their previous and destroyed marriage have never been valid.

Together with this Synod, I earnestly call upon pastors and the whole community of the faithful to help the divorced and with solicitous case to make sure that they do not consider themselves as separated from the Church. (Familiaris Consortio, n.84). I think that this exhortation of the Pope to make untiring efforts to bring solace to the broken-hearted should be taken to heart by every marriage tribunal worker. I think that the Pope has laid on every tribunal worker the obligation to positively look for ways in which a person can be reconciled with the Church, particularly by rectifying his present situation. It is therefore imperative that we look for grounds, even ‘fresh’ grounds for annulment of marriages. I suggest that every attempt should be made to annual a marriage that has irretrievably been broken. This is certainly not going against out doctrine of the indissolubility of marriage, but rather it is being faithful to the mission of Christ as healer.

The Indian Situation

It is no exaggeration to say that the situation of marriage tribunals in our country is pathetic. The dioceses where there are full time tribunal workers can be counted on the fingertips. Many dioceses have no tribunals at all. There are some diocesan or interdiocesan tribunals that work on an ad hoc basis and are woefully short of personnel. In addition, there is no access to the jurisprudence of tribunals abroad because of the prohibitive cost of canon law periodicals.

It was because of the dearth of trained personnel that a Faculty of Canon Law was established in St. Peter’s Seminary, Bangalore. But the average number of admissions to this Faculty is only seven annually. Most Bishops are not interested in sending personnel for training. The reason often preferred is that divorce is a problem of the west, and that in our country marriages last. This we know is a myth. Problems do not surface, not because there are no problems, but because the problems are swept under the carpet for sociological and other reasons.

In a situation like this, it is natural for a tribunal worker to tell a person in trouble that nothing can be done and that one should bear one’s cross patiently with the grace of God. This, obviously, is an unjust and cruel situation. For, a person whose failed marriage was in fact null has a fundamental right to enter into a new union. The tribunal cannot and should not stand in the way. Let us consider this point. If the person’s first marriage was in fact null, he is by divine law free to marry. What stands in the way is the ecclesiastical prohibition against marrying afresh until the nullity of the first marriage has been legally established: “Even though the previous marriage is invalid or for any reason dissolved, it is not thereby lawful to contract another marriage before the nullity or dissolution of the previous one has been established lawfully and with certainty” (can. 1085, 2). This prohibition of canon 1085, is a prohibition, and not an impediment. If in fact the first marriage was invalid, a second union entered into in spite of this prohibition would be valid. Canon 1573 states that the deposition of even only one witness, if the circumstances or persons and things persuade so, can be taken as full proof. This is of particular relevance to our country. The social and cultural situation in our country is such that a person would approach the marriage tribunal only when all other efforts have been in vain in saving the marriage. This should serve as a presumption in favour of the genuineness of the petitioner’s assertion.

Some attempt ought to be made by us to learn from the tribunals abroad, and especially the Roman Rota, that have done enormous work in the field of interpreting the grounds of nullity. In the United States 38,448 decisions were handed down in the year 1991 (cfr CLS Newsletter, n.93). In Great Britain and Ireland, of the 1432 first instance cases handled in 1991, 66% were for lack of due discretion, and 30% for inability (CLS Newsletter n. 92). There is also an interesting case of Conformity of Sentence, given by the Rota on 26th February 1987. The first instance decision was affirmative on the ground of total simulation in the wife, while the second instance was affirmative on the ground of lack of due discretion in both parties. An appeal was made to the Rota that nullity of the first marriage had not been declared by two conforming judgments. The Rota upheld conformity of sentence. (Cfr. CLS Newsletter, n.94).

Since most marriages in India are arranged marriages, there is a lot of scope, I think, for considering more seriously the grounds of lack of due discretion (on the part of parents!), implicit condition, lack of commitment, qualified error, fraud etc. I also suggest that we discuss the following topics:

What can the tribunals do to help one another in exercising this healing ministry? Are not our tribunals over concerned with indissolubility? Are we not negative and unhelpful in our attitude? The Pope makes a distinction between the innocent party and one who has destroyed a marriage. Are we right then to treat both the innocent and the criminal as equals? Should there not be riders added to the judgments to take care of this?