cormacburke.me.ke

            It is now time to try and see where these intricate and very helpful considerations are leading us. It would be tempting simply to present a synthesis, taking elements from both sets of presentations and weaving them together into a tissue that could cover many situations, or channeling them into a river with different currents that would meander through our countryside giving life as it flows, and then saying that this is the Church's present understanding of the laws relating to marriage.

            However, it is obvious to any reader that such might not be appropriate nor practical, since we would be trying to combine two different approaches which, to some extent, defy unification. Both have their exceptional merits; both have their place in the life of the Church; both derive from the same doctrinal statements. Yet, the consequences are often so different. One view approaches marriage more from the perspective of the underlying canonical doctrine; the other, more from that of direct pastoral assistance given to those in need. They are not contradictory, but the purposes are different.

THE PERSONALIST DIMENSIONS

            Msgr. Burke has taken great pains to bring out the personalist dimensions of matrimonial consent. The recognition of the dignity of the human person, as understood according to the principles of sound anthropology, appears to be foremost in his approach, and rightly so. Indeed, as St. Irenaeus tells us, "The glory of God is man fully alive"[1]. The human being is at the center of creation and is its crowning glory. Although some animals remain partnered for life, we do not speak of marriages among other beings. Rather, this "great Sacrament" is reserved for humans. It is based on the complementarity of man and woman [2].

            Pope John Paul II addresses this issue in his 1997 address to the Roman Rota: "The personalist aspect of Christian marriage implies an integral vision of man which, in the light of faith, takes up and confirms whatever we can know by our natural powers. It is characterized by a sound realism in its conception of personal freedom, placed between the limits and influences of a human nature burdened by sin and always sufficient help of divine grace. [...]

            In the handling of marriage cases it would be a mistake to have too "idealized" an idea, so to speak, of the marital relationship, which could lead one to interpret the normal exertion that can occur as the couple progresses towards full, reciprocal emotional integration as though it were a genuine incapacity to assume the obligations of marriage" [3].

THE BONUM CONIUGUM

            One area in which the two authors appear to differ concerns the bonum coniugum and its future implications. It would seem that Professor Rik Torfs insists more than Msgr. Burke does on the future implications of the bonum coniugum, a conciliar expression now enshrined in canon 1055 [4]. Rather than seeing the bonum coniugum simply as the sum of the three traditional Augustinian bona. Professor Torfs asks whether or not we should be looking at this bonum as the basis for the other bona matrimonii. Or, might it be that the bonum coniugum is the consequence of the other three, rather than their basis, as Msgr. Burke seems to suggest? This is not yet fully worked out, but there is a lot of potential in investigating this approach because the Legislator would not have included the words in the Code if they did not have significant meaning. Indeed, canon 776 of the Code of Canons for the Eastern Churches also uses the same expression.

            Accepting as a starting point that the bonum coniugum has indeed juridical relevance distinct from the other terms used in the Code, one of the challenges, then, would be to define it and determine the elements required in any true bonum coniugum, the absence of some of which could compromise the validity of the Sacrament. Likewise, in so doing, we should ever keep in mind "the minimum without which one cannot speak of the capacity or sufficient consent for a true marriage" [5]. The same challenge is faced when attempting to determine the content of the "communion of life" [6] or listing the "essential" elements of marriage [7]. It could well happen some day that all three will be considered equivalent. But, in the meantime, when examining separately the elements of the bonum coniugum, and trying to refine the understanding we have of these terms, it would be important to keep in mind the relationship of the bonum coniugum to marital consent itself. Is this bonum the object of consent (being another term for "marriage" as used in canon 1057), or rather is it an integrating element? Would a recognition of its place as a distinct good of marriage imply a change or a reordering in the understanding of the content of marriage itself, as was probably the case with the move from "contract" to "covenant"? Possibly so, but it would not be the first time that the Church has successfully addressed new situations and come up with new answers.

            I believe that canonists would agree that the will of the partners cannot determine the essential content of the bonum coniugum, turning it into something very flexible, varying from one marriage to another. But, at the same time, these same canonists would have to allow for certain legitimate differences, perhaps based partly on cultural expectations and social circumstances [8], as is already the case today when dealing with certain marriages [9].

            What frequently appears to move the partners to marriage is affectivity; this "personal" value is naturally present in all decisions to enter into marriage although its expression may differ. The partners do not reach this value through a process of reasoning; rather, it seems to be an intuition that presents the other "person" as an object of the will [10]. Is this "affectivity" simply an expression of the bonum coniugum? No matter whether the bonum coniugum is eventually considered to be distinct in itself, or the foundation or pinnacle of the other bona, and no matter which elements are retained to describe it juridically, the content of marriage would certainly have to include a number of fundamental and unequivocal elements that are to be found in any valid marriage, be it sacramental or not [11].

            Even though the task of developing a new understanding of the content of marriage based on the bonum coniugum would be difficult, this does not mean that it should not be attempted. Nor does it mean that there will not be mistakes and possible exaggerations along the way until such time as the canonical doctrine is held in peaceful possession throughout the Church.

            In fact, when speaking of the bonum coniugum, we can ask ourselves whether we are dealing with an "ideal" understanding of marriage, or simply with the regular content we would expect to find in every matrimonial union. There is a tendency to present our teachings in an "idealized" situation (to use Pope John Paul II's words). We have to make certain that any eventual understanding of marriage based on the bonum coniugum is one that can apply to the vast majority of human beings, and not simply to an elite. Are all couples able to make the sacrifices entailed in making the marriage successful? Msgr. Burke tries to bring out this significant dimension in his studies.

A RE-MODELED CANONICAL UNDERSTANDING OF MARRIAGE

            Our present understanding of marriage — or of its juridical elements - might have to be challenged or "re-modeled", again to use Msgr. Burke's words. It is quite possible, for instance, that many tribunals have, for all practical purposes, bound themselves into a "canon 1095" mode, so that for them nothing exists outside of the ramifications of this canon - as they interpret it. Yet, a careful and methodical re-examination of the numerous implications of canon 1101 on simulation is certainly called for, and Msgr. Burke's insights are of particular importance here. But, also, the potential of the canons dealing with error and dolus, and perhaps even more particularly with ignorance, should not be overlooked [12]. There is much possibility here for new understandings and applications. Can we really presume today that young couples, although they have the required knowledge relating to sexual matters, have the requisite knowledge of the implications of marriage as a consortium of which canon 1096 now speaks?

            When speaking of the consortium of conjugal life, we could ask ourselves whether this word is simply the legal term used to cover the bonum coniugum as it is lived out in reality - like the matrimonium in facto esse of the past - or is it something radically different from a simple contract involving an exchange of rights? Again, since the expression is used in the Code in a distinct fashion, we have every right to presume that the word has a meaning distinct from that used in other canons when referring to marriage as a lived reality. Here again, it looks as though a re-interpretation or even a new understanding of the content of the term is called far, although in the end it might not be radically different from the substance of our current approach.

            Then, going one step further, when we add in the personalist dimensions of marriage - as distinct from what could be called "individualistic" dimensions - and try to apply them to the law, it does not take long to see that they are not designed to be presented in a legal framework. Nevertheless, some canonists feel that they have no choice but to try and combine the two into one. Fortunately, both authors in our study seem to imply that even though personalism should indeed be the cornerstone of the matrimonial system, its content and characteristics are not yet fully defined. This too leaves room for growth.

            We cannot legislate for love, let alone for conjugal love [13], nor can we declare when it is to exist. Although we can see its consequences, breathe its fragrance, and enjoy its harmony, we cannot measure it or divide it in parts. Yet, love is one of the unifying forces behind marriage, whether it be there at the beginning (particularly in the Western world where persons marry someone they think they love), or blossom forth as the partners come to know and appreciate each other more (as is often the case in those parts of the world where marriages are arranged by parents or elders and where the spouses come to love the person they married). Msgr. Burke notes, however, that the question of the juridic relevance of conjugal love has not in fact been fully settled; in large part because the analysis of the issue has moved on too narrow a ground (identifying conjugal love with "felt emotion"). So, to try and translate this and the other integrating elements of marriage into legal concepts is probably doomed to failure, at least for now unless the terms are carefully defined or if we are able to move out of a legal construct. It is something like legislating for generosity - an expression that is used so frequently in this work - or for concern for others. Against such, there is no law! [14]

DIFFICULTIES WITH PRESENT LAW AND OPENINGS FOR THE FUTURE

            In spite of the limitations imposed by a legal system as such, we must nevertheless recognize that there is indeed a law governing marriage. At times, it is quite evolved and even too complicated for the non-initiated, at least in practice. For instance, the numerous distinctions made in relation to consent, the intricacies surrounding the canonical institution of convalidation, the attempts to evaluate personal capacity, the particular focus on a given instant when consent was considered to have been expressed, have all occupied judges and will probably continue to do so for years ahead. There still is confusion in these areas in spite of the most valiant efforts to bring the marriage legislation into step with the implications of the conciliar teachings.

            Therefore, perhaps the time has come to recognize that, in addition to the legal approach with which the Church is quite familiar, there might be other ways of looking at the reality of marriage and its validity. Professor Torts ends his presentation with a call for a re-examination of the laws governing the celebration of marriage and its nullity, so that the Church could offer a legal system that is credible to the Christian faithful, as well as to non-believers.

            But, it will not be enough to focus on the laws governing the institution of marriage. The accompanying procedural laws would also have to be radically revised. In so many parts of the world, they can no longer respond to the legitimate needs and rights of the faithful. Obviously, by their nature, the law and its accompanying procedures are rather limited in their perspective. Tribunal personnel have been given an almost impossible task: to analyze a spiritual reality, to dissect it, to determine in the external forum how internal realities are to exist, and to pronounce judgment on the situation. When, in addition, the adjudication of the validity of a marriage is placed in a so-called artificial "contentious" context, it becomes evident that we are sometimes trying to place round pegs in square holes. Yet, such is the law at the present time, and it has to be observed while it is still in effect. But this does not prevent us from dreaming.

            Although it seems evident that Msgr. Burke did not have as his goal to call for an eventual revision of the legislation as it now exists or is applied, it must be kept in mind that many canonists will look at his considerations from the practical perspective of trying to determine whether a given union constituted a valid marriage or not. His insights will lead them to question certain assumptions which have been taken for granted. On the other hand, Professor Torfs approaches the question more directly from the side of the tribunal practitioner and looks at future possibilities. I think we must recognize the fact that, because of the prevailing interest of canonists for marriage nullity, it is in the context of tribunals that these two studies will probably influence the life of the Church more than in relation to preparation for marriage. In one respect, this is sad, for so much of the underlying doctrine, expressed so clearly in the preceding pages, could be given to future spouses, applying as it were the teachings of canon 1063 to their proposed union. Incidentally, we could say that for every dollar or pound that the Church spends on marriage tribunals, it should spend at least an equivalent amount on marriage preparation. Yet, such is not always possible today.

            Through the centuries, the Church has suffered much to defend the sanctity and dignity of marriage. It has borne the brunt of many attacks against its teachings. Obviously, it has no intention of changing its general position on the indissolubility of marriage, although in the past twenty or so years it has twice formally adjusted its teaching and practice on what constitutes the consummation of marriage [18].

            Within this core doctrinal context that is at the heart of the Church's treasury of spiritual gifts, and for which it is a "light of the nations", there remain many possibilities for drawing out new insights and applying them in the examination and adjudication of cases of marriage nullity. This is what was done in the late 1950s and subsequent years in regard to the contribution of the behavioral sciences and the recognition of the influence of personal incapacity on the validity of matrimonial consent. Possibly, what could be carefully considered at this time is a new or a renewed approach to the accompanying procedural questions along with a renewed understanding of the applicable canonical doctrine.

FOR A NEW SYSTEM OF PROCEDURAL LAW

            Could a new system be envisaged that might be able to integrate the salient elements of both authors' approaches? [16] If our examination of marriage cases were to be removed from a "tribunal" context, and transferred into another arena where the search for truth would be more predominant, where the doctrine relating to marriage would be given pride of place, and if we were to move from procedures that have so many prescriptions for validity attached to them, we might be able to address the issue from a new light [17]. As our understanding of the implications of the bonum coniugum develops, and as our awareness of the personalist and spiritual elements of marriage is refined, we will have to be careful to avoid pouring this new wine into old skins [18]. Every canonist will agree that it is not the marriage tribunal which makes the marriage null. If it is null, it is null ab initio. Therefore, the declaration of nullity does not change the underlying reality. Rather, it gives it external coherence and recognition. Yet, it frequently happens that because a given procedural act did not occur, or if the wrong tribunal studied the case, the declaration has no canonical effect. This can lead to incongruous consequences where one tribunal declares another's acts to be invalid and the process has to be started anew [19]. It seems that we are to be looking more for the truth of the situation, than for the observance of minute prescriptions which have little, if any, bearing on the issue being examined. As an illustration of this point, it could be said that our present system of competence even makes it practically impossible in many instances for a bishop to examine the cases of his diocesans, if they were married in another country. This is particularly frustrating in a country where so many persons are either immigrants or refugees from elsewhere. Yet, since the decision of the tribunal does not make the marriage null, would it not be appropriate for any bishop to be able to have a potential cause of nullity examined in his diocese? [20] After all, the bishop, by virtue of his office, is responsible for the spiritual well-being of all those entrusted to his care (see canon 383, §1). The apparatus of "judges", "defenders", "advocates" and the like is certainly outdated. It speaks of ages past when decisions of Church courts had civil effects. Today, particularly in the Anglo-Saxon world, there are so many other ways of providing for the civil effects.

            Three gradual steps could be envisaged in an eventual revision of the procedural laws. The first two are minor and would be rather simple to implement.

            First, the time might be appropriate to revise canon 1690, to allow for marriage nullity cases to be heard according to the oral contentious procedure [21]. This procedure, in fact, goes back in many respects to that adopted by Clement V, in the Decretal "Saepe" of cl306 [22], and which remained substantially in effect until the promulgation of the 1917 Code. Such a provision would be in the line of canonical tradition and safeguard the present tribunal system, if it were considered appropriate to uphold this system. Yet, so many procedural norms which now hamper the proper processing of the cases without undue delay, would then not have to be observed [23].

            There should also be a second intermediate step. As the present law stands, it is weighted too much in favor of the respondent. Indeed, a respondent who does not agree with the very fact of having a case heard, or who wishes to spite a former spouse, can raise numerous objections against an affirmative decision and lodge continuous appeals, which, in practice, can take over ten years to resolve, thus preventing the other partner from a marriage to which he or she would have a right. Pope John Paul II even alluded to this situation in 1996 when he called for "corrective measures" to be adopted in the present procedures [24]. I am not speaking here about a person who, throughout the process, intervenes and participates actively. But, a person who formally and without legitimate reason refuses to cooperate with the court during the processing of a case (c. 1592) should lose the right to intervene at further stages once the process has been completed in first instance. If this provision were adopted, it would remove a lot of anguish from the consequences of our present system and would let justice shine forth more directly.

            But, there could be a third step. Here, again, it is time to dream [25]. I would propose that consideration be given to replacing tribunals as the place where marriage nullity cases are heard, and, in their stead, establishing pastoral boards (by whatever name they are called) in dioceses, or in groups of dioceses. Tribunals would then retain their role for true contentious and criminal cases. These pastoral boards would examine, to the best of their ability, the values underlying the union of the former spouses, its quality, the human condition, and the objective validity of the first union. They would not be fettered by procedural norms which, at times, do very little to promote the reality of the sacrament. Rather, they would conduct an inquiry for truth, based on the Gospel values of faith and truth.

            At the same time, because we are dealing with a sacrament, which presupposes faith, it is somewhat surprising to see that the spiritual dimension is not readily put forward in our present procedural norms. Would it not be essential to be able to take into account the spiritual state of the parties concerned when considering such cases? Msgr. Burke insists so much on this often overlooked dimension. In some places, those who have maturely dealt with their own responsibilities in a marital breakdown are treated in almost exactly the same manner as those who have taken little or no time to reflect on their state in life [26]. Also, the anguish through which many of the parties who come to the courts have to experience is not always justified. It would seem that so many of our practices are now turned toward the law as in end in itself, when it is but a means to a higher end.

WHAT DOES THE FUTURE HOLD?

            The Church has invested so much in the sacrament of matrimony. The overwhelming majority of canonists are involved - sometimes exclusively — in matters relating to marriage. But, it can be asked whether the means we are using are indeed the most appropriate; there are serious stewardship issues to be considered here: use of persons, time and material resources. An acquired comfort with past ways of doing things can prevent us from looking objectively at current situations. Or, even worse, we could take our present practices as ends in themselves and develop an ideology justifying what is being done. The temptation is very strong.

            Msgr. Cormac Burke and Professor Rik Torfs have rendered a great service to the canonical world - and, eventually, to numerous couples - by raising issues that have not been so clearly raised in the past and that perhaps canonists have not dared to raise in formal circles. Neither of them pretends to have uttered the final word. But, if through their efforts they have enabled us to reflect on our present legal reality and on possible future adjustments, then they have achieved their purpose.

            One thing is certain after reading this work. There are many ways of looking at the same reality. Because one way is different from what we presently know and experience, this does not necessarily mean that it is wrong, or disloyal, or even heretical. There are many rooms in the Father's house [27], and there are many ways of examining doctrine and ensuing practice. We should not be afraid of raising new issues, nor should we be afraid of examining their ramifications in detail, to see whether it is not time for another aggiornamento in canonical law and practice.

NOTES

[1] Adv. haer., IV, 20. 7.

[2] See GS, no. 48.

[3] John Paul II, Allocution to the Roman Rota, 27 January 1997, No. 4, Origins, 1996-1997, 597-598,at 598.

[4] See Gaudium et spes, No. 48.

[5] John Paul II, Allocution to the Roman Rota, 27 January 1997, Origins 1996-1997, 597- 598, at 598.

[6] See SRR coram Pompedda, 11 April 1988, Decisiones 1988, 200: "... libenter concedimus hucusque nondum traditam fuisse claram notionem eiusmodi vitae communionis in sua substantia..."

[7] John Paul II, Allocution to the Roman Rota, 26 January 1984, in W.H. Woestman (ed.), Papal Allocutions to the Roman Rota 1939-1994, Ottawa, Saint Paul University, 1994, 181-186, at 185: "In the new Code, especially in the matter of marriage consent, not a few explanations of natural law from the Rota Jurisprudence have been codified. There still remain canons of great importance in matrimonial law, however, which have been necessarily formulated in a generic way and which await further determination, to which especially the expert jurisprudence of the Rota could make a valuable contribution. I am thinking, for example, of [...] the 'essential matrimonial rights and obligations' mentioned inc. 1095..."

[8] The 1991 Papal allocution to the Roman Rota (28 January 1991) addresses this particular issue; see W.H. Woestman (ed.), Papal Allocutions to the Roman Rota 1939-1994, 214-218.

[9] For analysis of tendencies in the Roman Rota in this regard, see A. Mendonca, "Recent Rotal Jurisprudence from a Sociocultural Perspective", Studia canonica 1995, 29-83, 317-355.

[10] See J. Gabiola, "Bonum coniugum'", Canon Law Society of Great Britain and Ireland Newsletter, No. 115, September 1998, 31-37, at 36.

[11] A statement of the Apostolic Signatura expresses this succinctly: "The Catholic Church holds that certain elements belong to the very nature or essence of marriage itself as determined by the Creator and are not optional elements that can be included or excluded at will; consequently their positive exclusion from marriage consent would make that consent invalid." CLSA, Roman Replies and CLSA Advisory Opinions, Washington, DC, CLSA, 1997,26.

[12] See, for instance, SRR coram Boccafola, 4 May 2000, Prot. No. 18.061 (not published), which addresses the question of ignorance in a renewed context, raising certain warnings: "Tamen in eorum sententia ne plus praebent illam ignorantiam quae irritat utpote minimam necessariam cognoscentiam, sed a contra transformant hanc minimam cognoscentiam in plenam ac perfectam naturae dualis ac paritariae matrimonii Christiani cognoscentiam quae a Concilio Vaticano II, utpote idealis, laudata est. Ita facientes, velint suggerere quod natura ipsa matrimonii de facto mutata est post Concilium Vatican II ita ut ilia eadem scientia minima naturalis quae ante Concilium in postpubertalibus praesumebatur ac ad valide contrahendum superabundebat, nunc post Concilium minime sufficieret ad validum matrimonium gignendum. Sed quomodo hoc possibile sit? Velint indices appellati revera asserere naturam fundamentalem instituti omnino naturalis utpote matrimonii in his ultimis annis revera omnino profunde mutatam esse?"

[13] This was addressed in detail by Pope PAUL VI, in his Rotal allocution of 9 February 1976, in W.H. Woestman (ed.), Papal Allocutions to the Roman Rota 1939-1994, 133-137: "We must, therefore, reject without qualification the idea that if a subjective element - among these especially conjugal love - is lacking in a marriage, the marriage ceases to exist as a juridical reality, which originated in a consent for once and forever efficacious. No, this reality, which is juridical, continues to exist and does not depend on love; it remains even though love may have totally disappeared" (at p. 136).

[14] See Galatians, 5:23.

[15] See, for instance, the decree of the Cong. for the Doctrine of the Faith, 13 May 1977, AAS 1977, 426, on the nature of "verum semen". See also canon 1061, §1 which now prescribes that consummation take place "humano modo". See also the Allocution of Pope John Paul II to the Roman Rota, 21 January 2000, Origins 1999-2000, 553-555, at 555.

[16] For instance, Pope paul VI, in the Rotal allocution of 4 February 1977, said: "Finally justice will be protected in the new Code in that in the latter, the juridical will no longer appear to dominate every area of the Church's life. It will appear rather as but one facet of that life - truly an important one - but also one serving the life of the communion as such and leaving to the individual believer the freedom and responsibility - as they say - needed to build up the body of Christ", in W.H. Woestman (ed.), Papal Allocutions to the Roman Rota] 939-] 994, 141.

[17] See, for instance, the prescriptions of canons 1620 and 1622, as well as many other instances in the Code where a given act implies validity or invalidity of the entire process.

[18] See Matthew, 9:17.

[19] For instance, the Apostolic Signatura, in a letter to a tribunal commenting on this practice, states that "the proposed practice of 'pursuing complaints of nullity' against sentences given 'during the previous administration' that now 'resurface' would be very imprudent and would not at all re-establish the credibility of the Tribunal"; see CLSA, Roman Replies and CLSA Advisory Opinions, Washington, CLSA, 1994, 32.

[20] This situation was already addressed in 1972 by the United States Bishops: UNITED STATES BISHOPS' COMMITTEE ON CANONICAL AFFAIRS, "Report of the Committee for Canonical Affairs", letter to Cardinal J. Villot, Secretary of State, December 12, 1972, 3: "Answers given to the questionnaire indicate a strong sense of injustice and confusion when a person with a deserving case must be told that, due to a technicality of Law, he cannot have his case handled on the local level."

[21] The matter was addressed during the process of revision of procedural law. However, the proposal was simply dismissed - "Propositio admitti nequit. Processus contentiosus oralis not dat satisfationes ("garanzie"), quae processui matrimoniali propter vinculum sacramentale necessariae sunt", see Communicationes 1984, 76, at c. 1642. However, if the oral process does not give sufficient guarantees, it could be asked why this was approved for other cases where justice is at stake.

[22] See Clement V, Decretal, Saepe, in Corpus iuris canonici, A. Friedberg ed., II, col. 1200, See also Dispendiosam prorogationem (ibid., col. 1143) which applies the procedure of Saepe to marriage nullity cases.

[23] Pope John Paul II addressed this issue of delay in his 30 January 1986 address to the Roman Rota: "I would also say something about the appropriateness that examination of causes should not be delayed too long. [...j May none of the faithful take the excessive duration of the ecclesiastical court process as grounds for not presenting his own cause or for giving up on it and choosing solutions in clear contrast with Catholic doctrine", in W.H. woestman (ed.), Papal Allocutions to the Roman Rota 1939-1994, 190.

[24] See John Paul II, Allocution to the Roman Rota, 22 January 1996, Origins 1995-1996, 615-616, at 616. Speaking of delaying tactics, pointless actions, and those which impede the attainment of the common good, the Pope says: "They also call for corrective measures by the legislator or for specific norms for the application of the Code, as occurred in the past..."

[26] This is not a new dream! See G. Lesage, "Pour une renovation de la procedure matrimoniale", Studia canonica 1973, 253-279.

[27] In this regard, see R. Bourgon, The Presiding Judge: Present Legislation and Future Possibilities for Marriage Nullity Cases, Ottawa, Saint Paul University, 1997, 184-185.

[27] See John, 14:2.