cormacburke.me.ke

[What follows could be considered a typical example of an inconclusive dialog; yet it may be of interest to some readers]

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From: ***. To: cburke@strathmore.ac.ke

Subject: Exclusion of indissolubility of marriage

19 June 2008

Dear Msgr. Burke,

I am writing to request your comments regarding the exclusion of indissolubility of marriage.

I am an atheist (baptized in the Roman Catholic Church) involved in a somewhat complicated relationship with a devout Roman Catholic woman. We have known each other for 15 years and would like to be together, however she insists on a Catholic marriage. Of course I could simply find a priest who will not ask me any uncomfortable questions or pretend that I have not stopped believing; however, I have decided to take the matter seriously and investigate whether I am actually able to contract a valid Catholic marriage.

The principal issue in my case is that of exclusio boni sacramenti. I have consulted a number of resources (the Code of Canon Law, papers in different canonistic journals, and court declarations of invalidity), and here is my best interpretation based on what I have read so far:

1. Catholics with a valid sacramental marriage are taught that it is always wrong to leave one's spouse. By "leaving one's spouse", I mean "closing the door" to them, rejecting the possibility of getting back together regardless of any amends made by the spouse. For example, if one enters another relationship, then it becomes impossible to accept one's sacramental spouse back without seriously hurting one's new partner. But, according to my understanding, the same act of "closing the door" can occur if a person takes a firm vow to be alone for the rest of their life.

2. Leaving one's spouse is wrong even if the spouse has started a new family, has children with someone else, and explicitly asks one to "start over with someone else". A true Catholic marriage cannot be dissolved even by the person with whom one contracts it.

3. When is a marriage invalid due to the exclusion of indissolubility? Here, I am faced with a problem. The phrases used in discussions of this problem, e.g. "to reserve the possibility of regaining one's freedom", "to intend a marriage that can be dissolved in the future", are so imprecise that I suspect the authors are unaware that there are at least two possible interpretations here:

A) My marriage is invalid if, at the moment of contracting it, I have the intention of leaving my spouse (in the sense described in point 1) in at least one hypothetical situation. e.g. I imagine that my spouse has left me and is telling me that I may "start over", and, upon imagining this, I find within myself the intention (will) to enter another relationship.

Based on e.g. https://www.cormacburke.me.ke/342, I suspect you do not subscribe to this view, but perhaps I have misunderstood you.

B) My marriage is invalid if, at the moment of contracting it, I consider it morally right to leave my spouse in at least one hypothetical situation. At first sight, this interpretation is hard to reconcile with canon law, which says that the exclusion has to be an act of the will. However, my moral sense is not a matter of my will. It is not through my will that I find leaving my spouse the moral thing to do in certain circumstances. I can perhaps "will myself" into never leaving my spouse, but certainly not into THINKING it is morally wrong.

Of course, you might retort that I am in fact rejecting, through an act of my will, a special type of contract (the true Catholic marriage) which, by its nature, makes it unconditionally immoral to leave one's spouse. But it is not accurate to say that I reject it - I simply do not believe there exists a contract [or any other procedure/rite/sacrament] that can make it unconditionally immoral to leave one's spouse, just as I do not believe I can enter a contract which will make it unconditionally immoral to drive a car.

This merits more explanation, but perhaps the following will suffice: I can promise someone that I will never drive a car, but this obligation will never produce an unconditional moral norm. For example, if the other party no longer wants me to abstain from driving, then it will usually be moral to act according to their present will, rather than stubbornly adhere to the previously made agreement. It does not matter what the original contract says - there will always be (usually extreme) cases in which it will be moral to act contrary to it.

If, by virtue of my DISBELIEF in the existence of a contract which makes it unconditionally immoral to leave my spouse, I am REJECTING true Catholic marriage, then I am also rejecting the sacramentality of marriage. After all, as an atheist, I disbelieve in the existence of sacraments. However, by this reasoning, all marriages contracted by baptized atheists would be obviously invalid by virtue of disbelief in sacramentality.

Could you please comment on the above? I would really like to discuss this further.

I would be grateful for your response and will be looking forward to it. If your schedule should not permit you to respond, I would appreciate it if you could send me a short note to that effect.

Yours sincerely,

***

June 27, 2008

Dear ***

Sorry for the delay in replying; I have been up country, from Nairobi, for two weeks.

Since the Church allows for separation of the spouses (the bond remaining; cf. cc. 1151ss), one cannot say that it is always immoral to separate (though it is always a pity if the situation is let reach a stage where it cannot be remedied. The remedy can usually be found - with good advice and good will and if sought in good time). The natural instinct when one marries is to give oneself to the other "for always"; that is, for life. To positively exclude this (i.e. to consciously intend that this should be a temporary union) is to plan simply for a more formalized type of sexual liaison. This always comes down to a test of love, since people truly in love want the "for-always" union. To positively exclude it means that there is no marriage.

Re sacramentality  I of course consider the matter as a believer and you as an unbeliever]: As I see it, the fact that you are baptized means that your marriage with another baptized person will be a sacrament. The truly positive sense of this is that when some difficult times crop up in your marriage (as they are bound to) you will both have special strength from God to keep your love going - which I imagine is what you both would now wish to do (who wants a failure in love?). It's beside the point that you don't believe in God. If he is there, you'll have the graces nevertheless. True, you would probably rely on them more, and make more effort to correspond to them, if you believed in Him.

  I of course consider the matter as a believer and you as an unbeliever]: As I see it, the fact that you are baptized means that your marriage with another baptized person will be a sacrament. The truly positive sense of this is that when some difficult times crop up in your marriage (as they are bound to) you will both have special strength from God to keep your love going - which I imagine is what you both would now wish to do (who wants a failure in love?). It's beside the point that you don't believe in God. If he is there, you'll have the graces nevertheless. True, you would probably rely on them more, and make more effort to correspond to them, if you believed in Him.

In the present matter, my advice would be to worry not about the effect of your disbelief in God - but about the quality of the love you have for the woman you want to marry. I am sure your love is genuine; and since you will be truly married, you both want that marriage to last for life.

With best wishes.

Cormac Burke

Jun 27, 2008

Dear Msgr. Burke,

Thank you for your taking the time to reply to my letter. I hope I am not imposing on your time, but I would like to ask you to elaborate on what you have written.

There are a number of philosophical points that interest me in the issue of the validity of Catholic marriage (I have even started writing an article on the topic that I would like to publish on my website with philosophical essays), but let me first go straight to my personal case:

When I imagine a hypothetical situation in which my wife has left me and started a new family (of course she would have broken her promise), (A) I find within myself the intention (will) to leave her (enter another relationship, such as a civil marriage), and (B) I consider it morally acceptable to do so (I do not consider myself morally required to wait for the improbable event of my wife's coming back). Obviously, I do not want this to happen nor do I consider it particularly likely, though of course one has to keep in mind that 20-30% of all marriages end in divorce.

Are you saying that with this state of mind, I can still contract a valid Catholic marriage? If so, why? If not, is it due to (A) or (B)?

Once again, thank you for your time.

Best wishes,

***

Jun 28, 2008

Dear ***

The validity of consent depends on its present nature; i.e. it must be given and accepted as a bond that cannot be dissolved except by death. If you positively exclude such a bond at the moment of consent, the consent is invalid. If your intention at consent is rather to accept such a true bond (that is, to accept your spouse as truly your wife) though you also mean, in certain possible circumstances, to abandon your wife and to 're-marry', then this latter intention is highly immoral but, to my mind, it would not render your present marital consent invalid. And if those circumstances did arise and, abandoning your wife, you did contract a new 'marriage', this latter would not be a true marriage at all.

Anything less than a bond accepted as indissoluble is not a marital bond; it is simply a more or less formalized sexual relationship, breakable at will. Besides that, from the anthropological viewpoint, it savors too much of reserve and calculation; it is simply not what a person who wants a real marriage intends.

Cormac Burke

Jun 28, 2008

Dear Msgr. Burke,

Thank you for your reply, but could you please just answer my question? If you were still a rotal judge, would you rule that the state of mind described below is sufficient to infer that I am positively excluding an indissoluble bond?

When I imagine a hypothetical situation in which my wife has left me and started a new family (of course she would have broken her promise), (A) I find within myself the intention (will) to leave her (enter another relationship, such as a civil marriage), and (B) I consider it morally acceptable to do so (I do not consider myself morally required to wait for the improbable event of my wife's coming back). Obviously, I do not want this to happen nor do I consider it particularly likely, though of course one has to keep in mind that 20-30% of all marriages end in divorce.

Thank you,

***

June 29, 2008

Dear ***

Sorry: if I were still a rotal judge then, before I could consider the question, I would need to have before me a lot of evidence (not just from the party concerned) that such was indeed his or her intention at marrying.

Let me put it this way. If yours is an "idle" question, I don't have to answer it. If what you outline is truly in your mind in relation to the marriage you mentioned, then (especially since you hypothesize, "if my wife...") it is you who must answer the question: "Am I really accepting her as my wife" (which, I presume, she wants); or am I deceiving her when I say 'til death do us part'?

There is no half way between a marriage, and a temporary or breakable sexual liaison. The first implies a total commitment - which is what true love wants. The latter is a calculated decision (which of course could be mutual): "I will live with her/him as long as she/he suits me." It is practical and commercial; but it is not marriage.

Sincere good wishes.

Cormac Burke

June 30, 2008

Dear Msgr. Burke,

Thank you for continuing this dialogue.

1. You want to make the issue seem straightforward - a matter of answering a simple question like "Am I really accepting her as my wife?". Of course I want to accept her and call her my "wife" in the normal, everyday sense. But when you say "wife", what you really have in mind is the whole Catholic idea of marriage. Now the whole point of my communication with you is that I simply don't know whether my state of mind counts as "accepting her as my wife" according to Catholicism. That is why I sent you a detailed (and truthful) description of my attitude.

2. You are telling me to ask myself "am I really accepting her as my wife or am I deceiving her when I say 'til death do us part'?". But that is a false alternative. I take my promises very seriously and I do not intend to deceive anyone. I am very open to her about my attitude and she has no problem with the fact that there are certain hypothetical situations in which I would enter another relationship. Now I think you will agree that the lack of deception on my part does not imply that my marriage will be valid.

3. Of course, my attitude is not "I will live with her as long as she suits me", nor is it "I will never be with anyone else, even if my wife starts a new family". It is somewhere in between (probably closer to the latter). Here is my true state of mind again:

When I imagine a hypothetical situation in which my wife has left me and started a new family (of course she would have broken her promise), (A) I find within myself the intention (will) to leave her (enter another relationship, such as a civil marriage), and (B) I consider it morally acceptable to do so (I do not consider myself morally required to wait for the improbable event of my wife's coming back). Obviously, I do not want this to happen nor do I consider it particularly likely, though of course one has to keep in mind that 20-30% of all marriages end in divorce.

Can I contract a valid Catholic marriage? If so, why? If not, is it due to (A) or (B)? Best wishes,

***

July 4, 2008

Dear ***

Enough of juridical fine points. Long before marriage became an object of legal analysis, it was a human reality; and the natural feeling about it was certainly more than that of a contractual rescindible arrangement. This latter is a commercial idea that corresponds to our modern mercantile approach to almost everything.

The real point is, does she love you enough to accept you as a true husband? And, more importantly, do you accept her as a true spouse?

You wonder too much (surprising in an atheist) whether you will be "free" or not to marry someone else if she is unfaithful. There is too much calculation and lack of mutual trust in that approach; it is not the sort of love that can keep a marriage going.

And this is not the "Catholic", but the natural idea of marriage. Infidelity in marriage is one of the most likely results of an initial lack of full commitment and trust - which should characterize genuine love. If there is not that sort of love on your or on her part, I would advise you not to go through a ceremony which is based on the premise that such committed love in fact exists.

With all good wishes.

Cormac Burke

July 8, 2008

Dear Msgr. Burke,

I would like to thank you for the time you spent replying to my messages.

You have systematically avoided answering my question regarding the validity of Catholic marriage in my specific case, perhaps because you tacitly realize that canon law does not resolve the issue one way or the other (personally, I'm nearly certain of that now), perhaps because you no longer believe in canon law and feel that the validity of marriage is determined by something more basic and human than conformance to legal definitions of the Roman Catholic Church (which would be somewhat surprising in a former rotal judge). Whether I have this basic ingredient, I am not sure. Phrases like "genuine love" or "true spouse" are much too imprecise to be of any help in making that determination (how am I supposed to know if my love is "genuine"?). All I can say is that if "genuine love" entails blindness to the eventuality of infidelity or permanent break-up, then I guess I will never have genuine love.

I had originally planned to discuss other, more general and less personal, topics with you (such as contradictions within canon law and their theological implications), but, judging from your previous replies, I would guess you are not interested in that sort of thing. Do let me know if you are.

Once again, thank you for your involvement in this dialogue and please accept my best wishes.

***

July 9, 2008

Dear ***

Rather than avoiding your canonical question, I have expressed surprise that an atheist should have any serious interest in the question itself. It ought not to matter to you one way or another. That is why I have endeavored to analyze things within what I suppose is your own frame of reference in relation to marriage. If you don't believe in marriage, then don't marry. If you believe in a temporary sexual union, soluble at will or under certain conditions, that you don't have a truly human concept of marriage.

Far from thinking that canon law (especially as formulated in the 1983 Code) is in some way contradictory with human wisdom in its presentation of marriage, I am convinced that it is filled with deep anthropological insights. Perhaps the problem is that too few canonists appreciate this human wisdom.

Consider, for instance, the implications of canon 1057 which gives a new presentation of marital consent as that of 'the mutual giving and accepting of one another by the spouses'. Any true gift is permanent; otherwise it is just a loan. Marriage is a permanent gift that is the fruit of love. If one does not accept it as permanent, one wants something other than marriage, and one's approach is too conditioned to be true love.

True love wants commitment. You say you may not know if your love is "genuine"; but you should be able to judge if your commitment is.

If you don't trust you fiancee to be faithful, then you have little regard for her; and if this mistrust is reciprocal, then the same applies on her side towards you.

Forgive these rather blunt words. But the impression I get is that you are not thinking of marriage in any real sense at all, neither catholic nor canonical nor human.

With every good wish.

Cormac Burke

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Correspondence ended here.