On Marital Law

Britain’s Catholic Herald dips deep into the body of American theologians to surface this commentary on the Church’s recent initiative on declarations of nullity. I like being informed on the loyal opposition, and I think the article sums up the best and worst of the arguments in favor of increased rigor. But it also shows a few chinks in the reliance on canon law to the exclusion of other principles.

Professor Benedict Nguyen:

Extremely busy diocesan bishops, including those who may not have training in marriage law, will be asked to decide potentially hundreds of canonical marriage cases each year by relying almost solely on the report of assessors who themselves may not be canon lawyers.

Saint John XXIII’s quip* notwithstanding, everybody in ministry is busy. But I get the point. It seems like come December, perhaps quite a lot is landing on the to-do list of the world’s bishops. Personally, I think bishops might do better to be more involved at the front end of marriage prep. My question: how many couples are prepared for marriage and witnessed by a bishop–excluding relatives?

As for assessors, it would seem that prudent bishops will surround themselves with canon lawyers for this task. Why wouldn’t they?

The result is that some marriages will be presumed invalid even before the process starts.

We already know that some are. The findings of canon lawyers don’t affect the validity of a marriage in the slightest. People involved as canonists, advocates, witnesses, observers, or clergy know that in some instances, it is hard to divorce presumption from some of the more blatant facts of a case. Usually when things like “shotguns” or “open marriage” are found amongst the accounting of facts.

Professor Nguyen overstates the importance of a second review. He is critical of the American “experiment” of 1971-1983. He suggests distrust of the ability of a single process, but there’s nothing to suggest that canonists at the second review would be any more or less rigorous than those of the first.

The reality is that where first instance tribunals follow the process appropriately and objectively, a properly staffed second instance tribunal can generally arrive at a favourable decision rather quickly.

Which is the point: such decisions weren’t given quickly. That is part of the impulse behind reform. That was part of the matter raised by bishops going back to 2005.

Professor Nguyen had other complaints: a lack of consultation with bishops and canonists, a lack of representation from North America, plus it’s the wrong time to reform when we’re in the middle of a crisis.

I suppose open discussion was clamped down quite a bit in the years leading up to 2013. Bishops openly surfaced the matter at the 2005 synod, but little was done on that point. I suppose canon law societies around the world could have been more intent on addressing the overall health of marriage and how canon law contributes or detracts from this health. But few did. Or maybe none. People at their desks seemed satisfied with the 1983 Code of Canon Law.

But now things have changed. Some of the people who excused themselves from the discussion on reform have asked to be included. Does that pass a sniff test? Not mine.

One last citation from Professor Nguyen:

(W)e need norms that ensure that (second instance review) is used effectively and efficiently. If the sublime dignity and beauty of marriage is truly what we believe it to be, would the presumed validity of a marriage not make it worth a second review to safeguard it from possible sloppy or arbitrary decisions?

I think the locus of concern is misplaced. If the dignity and beauty of marriage is truly what we believe it to be, the Church, including its canonists and bishops, might consider putting more resources into the front end of marriages than at their end. In fact, I’d say the time is right for just such an effort.

Perhaps lay canon lawyers might step forward in their parishes to mentor engaged couples and the newly married. Ideally that happens two-on-two. Individual attention is how Jesus engaged people and inspired them. Why not put knowledge of law and theology at the service of a pastoral touch?

I’m not naïve to the point of saying we don’t need laws, rubrics, and norms–plus people to oversee the implementation of such. But sometimes, to focus on putting one’s finger in the breach might mean one soon finds oneself on an island, and alone.

And for those who are not canon lawyers, perhaps it is a perfect time to look around and offer support to marriages before they are birthed and before they break.

*It may be apocryphal, but someone once asked Pope John XXIII how many people worked at the Vatican. He said, “About half.”

About catholicsensibility

Todd lives in the Pacific Northwest, serving a Catholic parish as a lay minister.
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2 Responses to On Marital Law

  1. Katherine says:

    So much for the idea of ‘pastoral’ bishops who aren’t trained canonists …

    Ed Peters is less concerned than Nguyen, but he too sees problems in the new rules, argues they need to be delayed until some things are sorted out. I’m not a canonist, though I’ve studied the history and the old forms (pre-Code), but even I could see that there are passages that are seriously confused and confusing. And there is always the tendency for impatient reformers to forget that rules and structures are there for a reason, put in place to fix some problem or abuse.

    Here’s one diocese already putting a damper on media-hyped expectations:
    http://madisondiocese.org/DioceseofMadison/FAQaboutrevisedmarriagenullityprocess.aspx

    All well and good to say bishops should be more involved at the preparation end of marriage. I don’t doubt that most, especially those who are competent and experienced canonists, would much rather do that than adjudicate annulment petitions. But there is little room to delegate the latter chore, which will be a much greater burden now, and only so many hours in a day.

  2. Melody says:

    About putting more resources/effort in on the front end of marriages; that has to start way before a couple shows up at the parish office to schedule a wedding. And I’m not talking about more classes and hoops to jump through. For better or worse we learn what we live with. The biggest influence on people’s understanding of marriage is their parents’ marriage. For some people that might take the form of “I’m going to do everything I can not to end up like my parents!” Hopefully one’s parents set a good rather than a poor example. For those of us who are parents it’s something to think about and be aware of. Family members can be good mentors, and be supportive in many ways of young couples just starting out.

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