Intolerable Marriage Situations Revisited

Intolerable Marriage Situations Revisited James H. Provost Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons Recommended Citation - Article 3 JAMES H. PROVOST* It has been ten years since The Jurist published the results of a Canon Law Society of America [C.L.S.A.] study into "immediate internal forum solutions for deserving persons involved in canonically insoluble marriage cases."' The ad-hoc committee recommended the Society "let the matter rest" at least for the following year, and keep a close watch on related developments. There have been a number of related developments in the decade since that publication. It is time to review what has taken place. Indeed, so much has taken place that this study will be limited primarily to the canonical dimensions of this complex matter.2 THE C.L.S.A. REPORT 1. Background The situation of divorced and remarried Catholics received renewed attention in 1965 as a result of Archbishop Zoughbi's intervention during the fourth session on the Second Vatican Council.' He raised the possibilt This article is reprinted with permission from 40 THE JURIST 141 (1980). * The Catholic University of America. See THE JURIST 30 (1970): 1-74. The report [referred to hereafter as C.L.S.A. Report] itself is authorized by Ladislas Orsy and appears as "Intolerable Marriage Situations: Conflict Between External and Internal Forum," pp. 1-14. For a recent bibliography see Robert T. Kennedy and John T. Finnegan, "Select Bibliography on Divorce and Remarriage in the Catholic Church Today," in Ministering to the Divorced Catholic, ed. James J. Young (New York: Paulist Press, 1979) [hereinafter, Young], pp. 260-273. Surveys of special importance have been published by Richard A. McCormick, "Notes on Moral Theology," Theological Studies 32 (1971): 107-122, 33 (1972): 91100, 36 (1975): 100-117; and S~amus Ryan, "Survey of Periodicals: Indissolubility of Marriage," The Furrow 24 (1973): 150-159, 214-224, 272-284, 365-374, 524-539. 3 Acta Synodalia SacrosanctiConcilii Qecumenici Vaticani Secundi Vol. IV Pars III (Vati ity of alternatives to existing practice, a practice many pastors were finding difficult to apply in situations of a changing modern world. Three factors typify the current situation: concerns arising from evangelization efforts; an increase in the incidence of divorce; a renewed consciousness of the rights of persons to be heard in Church courts. The situation in the United States can serve to illustrate each of these factors. First, for several years prior to the Council, evangelization efforts in large cities had attempted to reach new populations arriving from other parts of the country and world. Many of these people were baptized Christians whose marriages did not survive the move from a socially stable rural environment to the city. Existing canonical procedures were not able to cope with problems encountered in examining petitions for nullity presented by these deserving converts. Some metropolitan areas adopted approaches to circumvent existing regulations in order to allow such persons to embrace and practice the true Faith. These were often termed "Good Faith" solutions.4 Second, Catholics in North America were caught up in a "divorce explosion" affecting the American population. An already general increase in divorce became a dramatic upsurge in 1965. Only recently has it leveled off.5 Third, the increased awareness of the rights of persons in the Church proclaimed by the Second Vatican Council started to have an impact on ministers of justice in Church courts. Tribunal personnel were increasingly uncomfortable with their inability to respond in reasonable time to legitimate petitions in marriage cases. The maxim "Justice delayed is justice denied" became a burden in conscience. 6 Two approaches surfaced in response to this situation. The first looked to simplify the tribunal process. The second questioned whether existing restrictions on remarried divorced persons should still apply. Again, the United States experience can illustrate both approaches. In the fall of 1968 the C.L.S.A. addressed tribunal procedures by can: Typis Polyglottis, 1977), pp. 45-47 (Congregatio Generalis No. 138) 47-48 (written animadversions in French), 257-258 (Congregatio Generalis No. 141). See the reports in Giovani Caprile, IlConcilio Vaticano II, Vol. 5: Quarto Periodo 1965 (Rome: La CiviltA Cattolica, 1969), pp. 130-131, 139-140. ' Raymond G. Carey, "The Good Faith Solution," THE JURIST 29 (1969): 428-438. ' Paul Glick, senior demographer at the U.S. Bureau of the Census, reports in "Future American Families," COFO MEMO [Coalition of Family Organizations] 2 (1979) 3:2-5, that "the long time upward trend in divorce became an upsurge between 1965 and 1975, when the U.S. divorce rate per 1,000 married women nearly doubled, from 10.6 per 1,000 in 1965 to 20.3 in 1975" (p. 3). See also his article "A Demographer (...truncated)