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

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

  • Posted by Mary's Advocates
  • On May 18, 2022

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:

According to a longstanding practice of the Church, those guilty of adultery in general cannot receive Eucharistic Communion. The Council of Trent describes adultery as a mortal sin through which the person involved loses the grace of justification already received* and is unworthy to receive Communion, unless he or she has repented of the sin, has confessed it, and no longer commits it.* From 1981 on, explicit statements that divorced and civilly remarried persons are not to be admitted to Communion have been made by Saint John Paul II (1981),* by the Congregation for the Doctrine of the Faith (1994),* and by Benedict XVI (2012). [* Citations in original and republished on OnePeterFive].

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. 24th 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.

 Third Plenary Council of Baltimore. Art. 123. Since the contract of marriage is one of the seven sacraments of the evangelic law, it is for the Church alone, to whom the whole care of the sacraments was entrusted by Christ, to pass judgment on the validity of the marriage and the rights and obligations arising from it. For which reason the Council of Trent (Sess. XXIV, can. 12.) defined it: ‘If anyone says that the matrimonial cases do not belong to ecclesiastical judges, let him be anathema.’ [translation Mary’s Advocates]

Art. 126. We lay down the precept to all those, who are married, that they do not enter civil tribunals for obtaining separation from bed and table, without consulting ecclesiastical authority. But if anyone should have attempted it, let him know that he incurs grave guilt and is to be punished through the judgment of the bishop. [Translation Bernard]. 

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.  

 1

12 Comments

Anthony D.
  • May 19 2022
1) Civil divorce is immoral as an end in itself and must be avoided unless it brings about a greater good. 2) Seperation of spouses is immoral as an end in itself and must be avoided unless it brings about a greater good. 3) Supporting marital divorce or seperation without the pursuit of a greater good is a grave matter for a Catholic. Whether it is grave enough to warrant refusal of communion seems obvious, since it is an attack on a sacrament, but it does not appear as if any US bishop is willing to recognize the gravity to the point of denying communion. It seems to be left to the conscience of the protagonist(s) which seems to be neglect on the part of the bishop who's job is to help us get to heaven.
Mary's Advocates
  • May 18 2022
LC, you wrote, "Legal separation does exist in my state." The canon law does not specify that one needs the bishop's permission only for civil divorce but not for civil separation. Canon 1692 gives restrictions prior to approaching "the civil forum" for any separation case. Divorce is a subcategory of separation as far as the Church is concerned.
LC
  • May 18 2022
In the US, public documents will attest to the evidence of the individual that filed for divorce. The proper ecclesiastical authority for marriage is the tribunal. The person that initiated the divorce should not be allowed to receive communion until the matter is settled by the tribunal. He said, she said isn’t a factor here. He/She did file for divorce as a matter of public record in the US.
LC
  • May 18 2022
Legal separation does exist in my state. No priest that I have spoken with was even aware of that, though a simple Google search will confirm it. Furthermore, in my state, the law was created for religious persons of all denominations. This is yet another reason why the bishop should intervene. And if the defense of marriage doesn’t warrant intervention from the Bishop, what does?
Mary's Advocates
  • May 18 2022
Dear K50, you wrote "The Church leaves it to people's individual conscience." Some issues the Church does not leave up to people's individual conscience.
- In the case of grave danger, the Church does teach that separation, based on one's own judgment is acceptable. But in the case of deeming a marriage invalid, the Church does not leave that to people's conscience. In the case of determining that it is tolerable to approach the civil forum for divorce or civil separation, the Church does not leave that to people's conscience.
- One needs to be shown how to connect the dots. CCC 2383-2385 has footnote no. 176 to canon 1151. Canon 1151 is a section about grounds for separation and canon 1692 is about the procedure for deciding separation cases and limits on approaching the civil forum. Again, "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)."
LC
  • May 18 2022
I agree entirely with Mary’s Advocate’s position here. So, I was approached for a divorce, which I would not sign. Not just approached, but served. It would have been a simple matter to sign it and get a just settlement. I approached the tribunal for a separation agreement which was sent to my spouse. It was not signed. My spouse has the benefit of unilateral no-fault divorce law on their side. So, now that I am divorced against my will, there is a legitimate stamp of approval from the civil courts in the eyes of my 8 children. I will never file for an annulment, but I’m sure it will come soon. We shall see. In any case, the Church really needs to defend marriage. Specifically the Bishop, because priests might be biased in their view based on local relationships. Anyway, I would just argue that common sense dictates… that whoever initiates a divorce should be denied the sacraments until they prove to a tribunal that their case is legitimate. Whoever initiates the sin should not be given the benefit of the doubt, much like when you try to find out “Who started it” with your children. Well, it’s very easy to find out in these cases, because divorce records are public- :)
BM
  • May 18 2022
Initially, my first reaction was, "Killing someone doesn't have canonical effects either. If you kill in war or in self defense you can still go to communion, but if you commit murder you better not." This is a tactic of the left that they say things that might have a technical basis in truth to generalize the concept and sneak in all kinds of things that are completely opposite and wrong. Either way, killing, self-defense or murder, is violent. Either way, justified (eg. physical abuse and no legal sep in state option available) or not justifiable, divorce is ALWAYS violent. It's the ripping apart of 'one flesh' and many times an entire family - the little church.
K50
  • May 18 2022
With regard to guilt or innocence, who decides this? Go into the nearest jail and you will find many people who will tell you they are innocent. Is the person who asked for the divorce guilty? What if s/he feared for life? Then is the other person guilty? The Church leaves it to people's individual conscience. It the quintessential "he said/she said". Dr. Peters is rightly explaining the teachings of the Church as expressed in the Catechism.
Matt Z
  • May 18 2022
No Communion for those who maliciously and without Church approval divorce makes sense. They destroyed someone's life and hurt children but are still not repentant, if their spouse is alive they can repent but don't. It seems like they are in a state of public objective sin similar to a Catholic politician who publicly promotes abortion without repentance or change of heart.
Mary's Advocates
  • May 18 2022
The Canon Law Society of America (CLSA) publishes “New Commentary on the Code of Canon Law.” Canon 1151 states, “Spouses have the duty and right to preserve conjugal living unless a legitimate cause excuses them.” The CLSA commentary, written by John P. Beal, says the following:

“Canons 1692-1696 outline the process by which ecclesiastical authority determines the existence of a legitimate cause and, if one is proven, permits a separation of the spouses. Permission for such a separation does not, however, free the parties to enter new marriages. In practice, however, the substantive and procedural canons governing separation are largely ignored both by separating couples and by ecclesiastical authority in the English-speaking world.”

Beal is a priest of the Diocese of Erie PA and has been teaching canon law at Catholic University of America since 1992. So a professor at Catholic U says the canon law is ignored and a Doctor of canon law in Portugal says the guilty spouse is to be denied Communion. What are the faithful supposed to think?
Mary's Advocates
  • May 18 2022
Dr. Mendonça Correia wrote his doctoral thesis on "O Matrimónio Canónio Concordatário Em Portugal" (Matrimony ruled by Church Laws and Concordats in Portugal) so he is an expert on canon law about marriage and divorce.
https://www.facebook.com/permalink.php?story_fbid=10224763760666940&id=1400233631
Doctor Mendonça Correia
  • May 18 2022
A few distinctions must be made in order to fully acknowledge the Church discipline about the matter.

(1) Canonical marriage, followed by divorce, followed by civil marriage of one or both spouses. -- No civil remarried spouse has the right to sacramental communion. However, s/he may attend Mass and practice spiritual communion, desiring to straight up things before God and the Church.

(2) Canonical marriage, followed by divorce, but not followed by civil marriage of one or both spouses. -- A further distinction is needed: (a) The guilty spouse has no right to sacramental communion. (b) The innocent spouse has the right to sacramental communion.

N.B.: -- "[...] there are some situations in which living together becomes practically impossible for a variety of reasons. In such cases the Church permits the physical separation of the couple and their living apart. The spouses do not cease to be husband and wife before God and so are not free to contract a new union [...]" (CCC, #1649).

Separation of couples has civil consequences (parental rights, alimonies, etc.). But separation as such does not exist in many countries. In that case, after getting the local Bishop's permit, it is licit to get a divorce, in order to regulate those cosequences. The innocent spouse(s) may have Holy Communion.
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