Part 5:   Can a Marriage Die?

By   John Hosie, S.M.

About one marriage in three in Australia ends in divorce. And remarriage after divorce is now common 'down-under'. For Catholics 'remarriage' is possible only if the first marriage was not valid. The failure of second marriages heaps tragedy upon tragedy for all those concerned. This fifth article in our popular series by Fr. John Hosie, SM, looks at the possibility that a marriage can die. And consequences for practising Catholics.

We have been looking at the situation of Catholics remarried without an annulment of a first marriage which they sincerely believe to be invalid. We have seen that a most authoritative church body has clearly indicated circumstances in which they may make a decision in good conscience and receive Holy Communion.

What is the situation of someone who believes that a first marriage was valid or is at least uncertain?

Belief is not proof

The first thing to note is that belief that a marriage was valid is not proof that it was valid. I have known divorced Catholics who believed that their marriage was valid, yet the former spouse applied for an annulment which was granted.

I am not implying that the tribunal decision was wrong: quite the reverse. I have always found our tribunals scrupulously careful in collecting solid evidence before granting annulments. If anything, they may be more careful than necessary in this regard. What I am saying is that the decision of the legally conservative tribunal clearly shows that a spouse was incorrect in believing that the marriage was valid.

People who discuss seeking annulments will often say of a first marriage, "I always thought it was valid". Their conviction- indicates no more than ,that they were genuine in pronouncing the vows of marriage, and sincerely intended that it would be until death.

However, though it may be unfounded, the belief of an average person that a first marriage was valid can make the difficulties in coming to a good conscience decision seem immense. This is especially so when they have been brought up to consider that it was not right for a Catholic to make important moral decisions alone: they had to obtain permission from a priest. Yet now they are supposed to take responsibility for this major decision. They need informed help. It is difficult to find.

Not easy to understand

The annulment process is not easy to understand. In working among the divorced, I speak to many Catholics who have received annulments, who say to me, "I still can't say I really understand it." Many priests are not well informed about the the current practices of the tribunal. How much more difficult it is, then, for lay people to feel sure of their grounds for believing that a first marriage (their own or that of their spouse) would be able to be declared invalid, if it could be submitted to the tribunal and witnesses were available. Very many feel uncertain.

If such Catholics are to learn whether they might be entitled to receive the Eucharist, there is another concept which needs to be explained here. It concerns the general law of the church and what we might call the objective status of a Catholic who is remarried without an annulment of a previous marriage (their own, or that of their partner), as contrasted with the question of whether they are in sin at a personal level. Since it is an unfamiliar idea for us who are accustomed to different traditions based on English law, let us try to explain it.

Two levels

Church law may operate at two levels: one - the general level and the second is the level of personal conscience. The presumption of law, for instance, is at the general level, and we saw from the words of Pope John Paul II that the presumption of law regarding marriage still stands: a marriage taking place according to the rules is presumed to be valid - unless or until an annulment is granted. His words indicate that the church unequivocally stands by its teaching that marriage, of its nature, is indissoluble.

But while he urged people to seek annulments, John Paul carefully did not say that there are no circumstances under which a person could receive Holy Communion without an annulment, and he spoke compassionately to Catholics who are divorced and remarried.


When the Pope speaks officially in public, and in documents, it is usually at the objective, general level. Nevertheless, he can also speak at the personal level. Thus, he sometimes hears confessions at the Vatican: there he is able to speak at the second level of personal conscience without being misunderstood. This could include a discussion about the right of an individual remarried Catholic to receive Holy Communion, scandal being avoided.

The different approach of church law may be illustrated by an example. Technically, the church does not recognize divorce. But, as we noted, in Australia the church requires Catholics to obtain a divorce before they can begin an annulment application. From the traditions of civil law in this country, we might think that the people concerned are being asked to "break" the church's general law on the indissolubility of marriage, to enable the annulment case to proceed. Yet in church law this is not the case: they are certainly not seen as being in a bad state of conscience.

Similarly, many people remarry (e.g. in a civil ceremony) before they obtain an annulment of a previous marriage. Until the annulment is granted their "objective status" does not fulfil those teachings of the church. However, it is interesting that once an annulment has been granted, and the remarriage is "blessed", the church regards the second marriage as having begun, not with the Catholic church blessing, but when they pronounced their vows civilly - even though at that time their objective status was seen as not fulfilling the general law of the church about indissolubility.

An understanding of these concepts is relevant for many Catholics concerned about whether to apply for a divorce or worrying because they remarried before annulment procedures were completed.

Return not possible

A separate point which deserves to be noted is that the Holy Father did not express a rule that divorced people should go back to a former spouse. In the vast proportion of cases, reconciliation is a question which related to the time before the final step of divorcing. For most people there is simply no possibility of returning to the former spouse (especially if there is a second marriage). There may be obligations to a new spouse, and possibly children to the second marriage to consider.

In fact, any divorced person who carries an inner belief that the marriage will somehow revive may be in a state of mind that is very unhealthy, and damaging to their day-to-day life. I can recall a woman, divorced eight years, whose ex-husband had remarried and had a child in the new marriage. He virtually never contacted the children of his first marriage.

Something about the way she spoke about him made me ask: "Do you think that one day, the phone will ring, and he will say, 'I'm sorry. I was wrong. Can I come back?"' She paused, and then said reluctantly, "Well. . . not soon."

Not facing reality

Retaining such a hope in the circumstances meant that she was not facing reality. It would be tragic indeed if she believed that she was being in some way "more Catholic" by refusing to recognize that the marriage was over. I wondered whether the very sad refusal of her former husband to contact his children had been affected by an awareness that she was likely to regard such contacts as "proof" that the failed marriage was going to start again.

The Beginning Experience, the Catholic program to help people come to terms with the end of a marriage sees the process of recovery of a person from the grief at the end of a marriage in terms of "Death and Resurrection". A person locked into impossible hopes of the revival of a marriage which has ended is in an unhealthy "spiritual death": lost, dead and without hope for the future. By closing the door on the painful past, they can begin to live again, and look to the future with renewed hope and confidence.

There were times when people in a second marriage, without an annulment, were described as "living in sin", or were specifically accused of being in an adulterous union.


Such terms imply that the previous marriage in some way still exists, and that the rights of a former partner are being transgressed by the new marriage. They more probably relate to earlier definitions of marriage as a contract for the sexual generation of children. The New Code of Canon Law, which is based on Vatican II, defines marriage as a convenant by which a man and woman establish between them a "partnership of the whole of life" (Canon 1055) The qualities of marriage emphasized by this and other recent official church statements, are mutual love and faithfulness, rather than rights to sexual actions.

Such principles are the basis on which a number of theologians argue that a marriage can die. If two people are divorced, if the obligations arising from the marriage are discharged, and each is living a new life in a second marriage, these writers say that it is meaningless to speak of the new union as "adulterous" as if some rights of the previous spouse were being infringed: the former marriage, they suggest, is dead.

Unforgivable sin?

Time and again divorced Catholics ask: "Is divorce the unforgivable sin?" Unless we are making a new set of criteria for sin and forgiveness, the answer has to be No, divorce is not the unforgivable sin.

It is because the church does not accept the notion of "unforgivable sin" that the clear distinction is always made, at the highest level of teaching authority in the church, between something which is, or is not personally sinful, and the discrepancy which may exist with the "objective status" of a person's situation in general church law.

Recent figures indicate that only three per cent of marriages in Australia, in which at least one partner is divorced, take place in the Catholic church (i.e. with an annulment). This seems to clearly show that for all the church's emphasis on urging Catholics to apply for annulments, the divorced Catholics who do in fact approach the tribunal are only a tiny minority. The tribunals have heavy backlogs of cases. If the numbers of applications for annulments rose greatly, the tribunals would be hopelessly clogged.

One reason which deters many Catholics from waiting until an annulment is granted, before entering a second marriage, is the length of time tribunal processes in Australia usually take. Few people contemplating remarriage are under 30 years of age, and for a woman, the suggestion that she should wait for what may turn out to be several years can be a cause of great anxiety if there is any hope of children from the remarriage.

speeding the process

It is encouraging that the 1983 New Code of Canon Law gave guidelines to shorten the length of time taken to handle cases. In Australia, despite improvement, we are still well behind in this regard. In 1986 John Paul II urged the Roman marriage tribunal to speed up its handling of cases.

Unfortunately, to speed up the handling of cases would require a huge channelling of church resources into tribunal work. The need would be even greater if there were big numbers of new applications. Many would question the church's priorities if it redirected its finances in this way.

If the Catholic church is to be true to its founder, it bears a grave responsibility to help marriages succeed. It needs to offer marriage preparation which is of excellent standard. It should offer counselling to help those whose marriages are in trouble. These responsibilities are taken seriously in very many dioceses.

Compassion, help, education

But the church bears an equally grave responsibility to reach out with compassion and help to people whose marriages have ended, and to those who enter second marriages. In the latter instance, apart from offering the work of marriage tribunals, few dioceses I know of take these responsibilities with any seriousness at all.

If these responsibilities are taken seriously, an improvement in the education of Catholics in such matters is needed. Why do so many believe that divorce is a sin? Why do people question the entire annulment process? Why do so many assume that any remarried Catholics who receive Holy Communion must be in bad conscience? There has been a failure to offer accurate knowledge in these areas. Even where a marriage has occurred without an annulment, there may be sound reasons, approved by the church, why a person can continue to attend the sacraments, if scandal is avoided (and scandal is not to be presumed). Very few Catholics indeed are aware of this fact.

The Eucharist is Christ's gift of himself to strengthen us in our weakness. Their belief that they are not allowed in any circumstance to receive the bread of life is one of the most serious deprivation which affect many divorced Catholics.

There is a grave obligation to offer compassion to the divorced, and accurate knowledge about divorce to all Catholics. Sadly, I still hear from many divorced Catholics of occasions when they are treated with disdain or condescension by other Catholics or have been humiliated and reduced to tears in the confessional. Yet the other Catholics or the priests concerned probably believed they were being true to Christ over the matter.

What was the attitude of Christ towards divorce, and towards the divorced?

Next month: Jesus and Divorce

Part 1   Understanding Marriage Breakdown

Part 2   Annulment of a Marriage

Part 3   Remarriage

Part 4   Remarried Catholics and Holy Communion

Part 5   Can a Marriage Die?

Part 6   Jesus and Divorce

From "ANNALS AUSTRALASIA"   September 1990

Portal to all Annals Australasia and Dr Leslie Rumble files


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