July 30, 2012              Brian Lewis, Ballarat, Australia

CARE OF THE DIVORCED AND REMARRIED

 Bernard Häring, prominent 20^th century Redemptorist moral theologian, is credited with instigating the renewal of moral theology. His major work The Law of Christ appeared in the decade prior to Vatican II and soon had world-wide impact on the presentation of  moral theology. Häring continued his revisionist work almost to the end of the century. He was not only an innovative thinker but a prolific writer. His last book No Way Out? Pastoral Care of the Divorced and Remarried in I989 manifests his deep compassion towards those who have suffered the trauma of marriage breakdown.  

'This is something that challenges all of us', he said in the Foreword to this book. 'The present situation challenges me as someone who has retired after 50 years' activity as a moral theologian and as a priest dealing with people to utter what is perhaps my last word of encouragement, out of sympathy not only for those who are divorced but also with the bishops and all who are active in pastoral work'. The question that primarily and ultimately concerned him was 'whether the Church in its entire existence, in its dealings with the law of Christ and in its turning to those who have been hurt or who have failed, can ever more be experienced as the sacrament of Christ's reconciling mercy'.  

The position of the Roman Catholic Church, which upholds the permanence of Christian marriage as proclaimed by Christ (Matthew, 19:3-12), stems from the teaching of Pope Alexander III in the 12^th century that a second marriage after the collapse of a first is as such to be condemned unless there is certainty that the first marriage was invalid. On this rests its Code of Canon Law which sets out annulment of Christian marriage as a procedure, according to which a Church tribunal declares after investigation that a Christian marriage was invalid from its inception. Annulment in the Roman Catholic Church is not a divorce, a dissolution of a valid marriage, but rather a determination that the sacrament of marriage was not validly entered into in the first place and never in fact existed. So in this case the parties are free to marry.  

In contrast to the Roman Catholic Church and its focus on absolute fidelity to the teaching of Christ, the Orthodox Church has insisted strongly on the compassion which in the real world should colour the application of fidelity to Christ's teaching towards those enduring the deep hurt that is so often the aftermath of a broken marriage.  

Häring professed himself encouraged in his search for a compassionate approach to the divorced and remarried by the statement of the 1980 Synod of Bishops in Rome, which he saw as expressing what he wished for and which was included by Pope John Paul II in his  Apostolic Exhortation on the Role of the Christian Family in the Modern World (Familiaris Consortio) in 1981. While adhering to the strict party line regarding the reception of the Eucharist and the need of complete continence in an invalid relationship, the Pope stated: '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 irreparably destroyed marriage had never been valid'.  

Continuing, John Paul shows that he shared the Bishops' concern: 'Together with the Synod, I earnestly call upon pastors and the whole community of the faithful to help the (remarried) divorced, and with solicitous care to make sure that they do not consider themselves as separated from the Church'. He also recognised that 'for serious reasons, such as for example the children's upbringing, a man and a woman cannot satisfy the obligation to separate' (par.84).  

Häring states that he was even more encouraged by the proposal made by one of the Synod members, a special friend of his, that serious examination be made as to whether the Roman Catholic Church might gain enlightenment, and perhaps an opening to compassion, from the practice of the 'economy of salvation' of the Orthodox Church. The proposal, he states, was endorsed by over 90% of the votes. Häring saw this as an avenue for 'the careful discernment of situations' of which John Paul spoke and as a healing approach to the problems of remarried divorcees.  

In the 22 years since No Way Out? was published, little has changed in the practice of the Roman Catholic Church in regard to divorce and remarriage despite the fact that the pressures on marriage are today much greater. Evidence of this is that currently in many countries up to about 50% of marriages break down and end in divorce. The revised Code of Canon Law (1983) actually abolished some concessions that had been permitted in particular regions and sought to have a level playing ground. In practice the only avenue of redress in the main remains recourse for an annulment to a marriage tribunal. It must be said that, in many dioceses at least, the response of these tribunals has been simplified and expedited and cases been approached with compassion and pastoral concern rather than in a legalistic manner. Marriage tribunals are even more overburdened than they were in Häring's time. Recourse to them has dramatically increased in the intervening years. The great danger for these tribunals, however, as Häring foresaw clearly, 'is of turning into courts of law where the healing love of the Redeemer can only with difficulty gain admission' and where it is difficult to 'find the atmosphere that would be favourable for the work of helping and healing' (p.21).  

According to the National Catholic Reporter (01/05/12), a conference in Rome in April, 2012 hinted that the Vatican may be considering a more restrictive approach to annulments. The conference focused on Canon 1095 of the Code of Canon Law, which gave as ground for annulment lack of ability to consent by one party because of 'causes of a psychic nature'. Of the 15 to 20 grounds for an annulment in Church law, more are granted on the basis of this particular canon than on all the others combined, roughly two-thirds of the total. Some critics maintain that the pastoral desire to help people in difficulty has led to an overly elastic interpretation of this canon. No wonder the wags have called it the 'loose canon'.  

Häring's conclusion regarding this increasing pastoral problem is that the Church needs to consider seriously 'a different way of thought and quite different institutions, which would make the Church capable of being convincingly recognised and experienced by the world as the sacrament of salvation, of Christ's healing and reconciling love' (p.21). His challenge remains to be taken up in the Church today.