Ask Dr. Peters: Does Divorce Really have No Canon Law Consequences?

by Bai Macfarlane
A blog article by canon lawyer Dr. Edward Peter was read on May 9th by Relevant Radio host Patrick Madrid.  While discussing prenuptial agreements, Peters says divorce carries no canonical consequences in terms of participating in the Sacraments.  However, he says married persons who divorce and attempt a second marriage (i.e., civil marriage or another religious affiliation) do have canonical consequences in terms of participating in the Sacraments.  Peters teaches canon law for the Archdiocese of Detroit, and I think he is cherry picking his canon law (note below).  So is everyone else who says that those who are divorced are free to get Holy Communion and only those who enter so-called second marriages are to be denied Communion.

With the non-profit organization Mary’s Advocates, I support spouses faithful to marriage even after separation and divorce who refer to themselves as Separated Faithful. For the children who prefer an intact home and the spouse who wants to keep the marriage together, divorce is an intense suffering. Separated Faithful are disheartened when priests or diocesan chancery personnel reportedly tell the spouse forcing divorce that the government courts are the rightful authority to judge separation cases (a.k.a divorce).

Is there anything I could say to Peters to persuade him that there are also canonical consequences in terms of participating in the Sacraments for those who divorce?  These consequences could, for example, be the denial of Holy Communion to prevent sacrilege and scandal and have medicinal purposes to reform a wayward soul. While Peters denies there are canonical consequences in terms of participating in the Sacraments for divorce, he does, at least recognize the violation of marriage promises [to love and honor, fidelity] is gravely sinful. I propose that the same rationale used to demonstrate that persons who attempt second marriages should be denied the Sacraments can also be applied to persons who are divorced. Furthermore, in both situations, there is a canon law undertaking that allows one to receive the Sacraments after the Church judges their status in the canon law forum.

First, let’s discuss second marriages.

Does the Code of Canon Law specify that Sacraments should be withheld from those who marry in the Church and thereafter divorce and attempt to remarry another person? No. Very few specific offenses have penalties or denial of the Sacraments directly attached to them in the Code. However, canon 915 does designate who should be denied communion: “those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin.”  Nowhere in canon law, however, is there a list of grave sins for which one should be denied communion.

So, if it is not from the Code of Canon law directly, where is Peters finding the notion that there are canonical consequences for married people who divorce and attempt a second marriage? Perhaps he uses the same sources that Cardinal Eijk cites in the book Eleven Cardinals Speak. Eijk writes the following:

None-the-less, we all know persons who attempted a second marriage that are now welcomed to receive Communion. QUESTION: How is anyone excused from the canonical consequence that both Peters and Cardinal Eijk describe?  ANSWER: If he underwent a canonical investigation that found his previous marriage to be invalid, he is free to be married to a different person.  The default position is that all marriages are valid until proven otherwise, and one can marry someone else if the first marriage is proven to be invalid.

Now, let’s discuss divorce. 

Does the Code of Canon Law specify that those who marry in the Church—and thereafter divorce—are to be denied sacraments?  No. However, canon 915 specifies that those in manifest grave sin should be denied Communion. The Council of Trent anathematized saying that any other forum, besides the Church, can decide marriage separation cases (cc. 8, 12. 24^th Session Trent).  With anathema, one is excluded from communion of the faithful.  In 1788, Pope Pius VI corrected  those who said the civil forum can judge separation cases. He taught “the marriage contract is truly and properly one of the seven sacraments of the evangelical law, then, just as this notion of the sacrament is common to all matrimonial cases, so all these cases must pertain to ecclesiastical judges alone.” Every person who files for divorce, or signs a divorce settlement in the civil court, is sidestepping the ecclesiastical forum’s exclusive competence over separation cases. A civil divorce (or civil separation) is nothing more than reneging Catholic marriage obligations and enforcing some contrary plan of obligations in the civil forum.  The person who files for divorce is announcing that he does not intend to live with his spouse anymore, nor provide for his children an intact home. The US Bishop’s conference in 1886 issued canon law applicable to American Catholics enforcing the canons from the Council of Trent.

Both the code promulgated in 1917 and 1983 specify that spouses are obligated to live together unless a legitimate reason excuses them (1917 c. 1128; 1983 c. 1151). The Catechism of the Catholic Church teaches divorce is a grave offense against nature, immoral, and only tolerable in situations delaminated in canon law (CCC 2383-2385; footnote no. 176 citing canon 1151-1155).  Canon 1692 specifies that only the bishop has competence to grant permission for one to approach the civil forum. I’ve collected many canon law commentaries which all explain a Bishop’s permission is required prior to anyone going to the civil forum for separation (i.e. civil divorce).

I’ll ask the same question about divorce that I asked about those who attempted second marriages. If divorce, by default, is a grave manifest sin and those in who obstinately persist in manifest grave sin are supposed to be denied Communion, then how is it that any divorced person could ever be able to get Communion?  QUESTION: How is anyone excused from these canonical consequences?  ANSWER: If one underwent a canonical investigation that found he has a legitimate reason to be separated and approach the civil forum, then he would be judged to not be in grave manifest sin.

I’m asking Peters to see a parallel.

By default, no one is supposed to enter a marriage with a new person when a current spouse is still alive, but a canon law investigation could find that there is a legitimate basis to marry the new person because the other marriage is invalid.  No one is free to independently judge his own annulment case and insist that his second marriage is a rightful Catholic marriage.  Similarly, by default, no one is supposed to divorce, but a canon law investigation could find that there is a legitimate basis to approach the civil form because there is a morally licit reason to be separated and the divorce decree will not be contrary to divine law.  No one is free to independently judge his own separation case insisting that the civil forum has the right to rearrange the marital obligations.  I’d like Dr. Peters to note that the Code of Canon Law says nothing directly denying Communion, per se, to persons who approach the civil forum for divorce (or civil separation); but, without permission of one’s bishop, a Catholic in the United States who files for divorce or agrees to a divorce settlement should be punished by his bishop.

Because marriage is a public good, my research compels me to conclude that someone is not supposed to be his own judge, self-proclaiming that he has a basis to approach the civil forum for a separation or divorce. When the Church remains silent, both children and divorce defendants are crestfallen as they see the Church leadership in the USA tacitly condone all divorce.  In the days of the Council of Trent, the leadership would be anathema.

NOTE:
In the most recently published statistics, the Tribunal of the Archdiocese of Detroit issued annulments in 299 of 301 sentences. In other words, in all the cases judging the validity of a marriage, 0.67% were found to be valid and 99.33% were invalid.