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ANNULMENT: ROOTS OF A GROWING PROBLEM

By Polonaise
If only Henry VIII had been fortunate enough to have the same
tribunal system that we have in the Catholic Church today, we might
have avoided the terrible rupture between Rome and England." That
comment, made to me quite seriously by a fellow Catholic, reflects
the dramatic change that has taken place in the marital courts of the
Catholic Church.
Another comment came from an Anglican friend during a discussion of
the two church's positions on divorce. At one point she smiled
knowingly and rather quietly said, "Oh yes, we have divorce and you
have annulments; but it all comes down to the same thing these days,
now doesn't it?"
Unlike my Anglican friend, Henry VIII clearly understood the
difference between an annulment and a divorce. (And not even King
Henry--not even today-- could likely have rolled up seven successive
annulments.) But this friendly English lady was very much aware of
the relative ease of getting annulments today in the Catholic Church
in the United States and in England. Given the multiplication of
these declarations by the Catholic Church, she saw little practical
difference between allowing divorce and allowing massive numbers of
annulments. Both seemed to her simply to be pure legalisms, concocted
by clergy in both churches determined to find a solution to the great
problem of broken marriages--just different ways of allowing people to
marry a second time in the Church.
To her mind, easy annulments were simply divorces under another name,
although the process involved was much more legalistic and
complicated. It was no use trying to argue the substantial
differences with her; the sheer number of annulments, granted with
such ease today, convinced her. Given long enough experience with the
massive numbers of annulments, she believed, the Catholic Church will
eventually arrive at the same conclusion: a divorce by any other
name...
The annulment explosion
One thing is certain. We are indeed living in a period of Church
history, at least in English-speaking countries, in which a virtual
explosion of annulments is taking place. In the late 1960s, for
instance, fewer than 400 annulments were granted each year in all
dioceses of the United States taken together. Today, a fair number of
dioceses grant more than that number each year. The Church as a whole
in the United States is granting tens of thousands annually, and
these numbers are growing.
Moreover, most tribunals admit that the number is actually that "low"
only because many Catholics still do not understand how revised
procedures have made it much easier to obtain an annulment today. In
addition, many other divorced Catholics have entered a second civil
marriage, but simply don't bother with the Church process because
they have already concluded that all this annulment business is a
legalistic sham--being used by the Church to avoid official
recognition of what the enlightened believe: that divorce and
remarriage is acceptable for Christians.

Moreover, the number of annulments is destined to grow in the near


future, because many dioceses are now conducting regular "information
sessions" to explain the process. Once the masses of Catholics in the
pews understand how easy it is to obtain an annulment today, the
tribunals will be even busier. Indeed at some point this new deluge
of annulment petitions will swamp the local marriage tribunals,
forming a backlog of cases and thus creating pressure for still
quicker solutions. Sooner or later, the bishops will be forced to
reexamine the whole issue more closely, and begin asking serious
questions about what has really caused this annulment explosion, and
what its impact is going to be on the Church's legal system and her
faith in the indissolubility of the sacrament of matrimony.
Focus on efficiency
To understand what is behind this tremendous growth in the number of
annulments granted today, it is important to note that, thus far,
this rapid increase is taking place mainly in English-speaking
countries, notably the United States, England, Canada, and Australia.
If you ask the canonical experts in these countries for an
explanation, they will point to two factors: the greater numbers of
divorces in these countries than in most other areas with Catholic
populations; and the greater efficiency of their marriage tribunals.
When he was the archbishop of Detroit, Cardinal Edmund Szoka was
quite proud of the technological efficiency of his tribunal, the
result of a state-of-the-art computer system he had installed, which
enabled his canonists to turn out decisions (almost invariably in
favor of the petitioner) in a much shorter time; the goal was to make
decisions in six months or less.
If other countries are granting far fewer annulments today, say the
experts, perhaps they simply have less efficient tribunals, and the
resulting delays discourage possible petitioners. Nowhere does one
find even the slightest concern that perhaps their smaller numbers
might have something to do with a different approach to the law
itself, or the possibility that tribunals in other countries may be
using stricter rules of evidence in judging the validity of
marriages.
This focus on efficiency may be a critical element in understanding
at least one reason why the explosion is taking place today mainly in
the English-speaking countries. (Given the enormous influence of
Anglo-American culture on the rest of the world, it also suggests
that the same dramatic growth may soon occur elsewhere.) Our culture
tends to be profoundly pragmatic in its approach to solving any kind
of problem, including human problems like divorce.
In <A Man For All Seasons>, Cromwell proposes the philosophy of
problem solving that characterizes Anglophile culture and thought to
this very day. (Interestingly enough, Cromwell proposes this purely
pragmatic approach precisely in the context of his effort to help
King Henry contract a new marriage.) It is a critical moment in the
play, and perhaps in history as well, and Cromwell's words perhaps
suggest one reason why we see so many annulments today. "And our job
as administrators," Cromwell tells young Richard Rich, "is to make it
as <convenient> as we can." Problems demand solutions, and the best
way to solve such problems will be the way that is most convenient
for everyone involved. That is the essence of this pragmatism. It is

an attitude that is found at the very heart of modern Anglo-American


culture and thus we should perhaps not be surprised when American
churchmen speak about computers as the main reason why marriage
problems are being resolved in such great numbers, so efficiently, in
English-speaking tribunals.
Of course, this pragmatic attitude to solving problems cannot by
itself explain the dramatic growth in annulments. Our divorce rate is
itself certainly a significant element in this increase, with civil
divorce among Catholics now equaling that of the general population.
But this deep-seated pragmatism has also certainly had an effect, not
simply in the use of technology to speed up the process, but even
more on the presumption of law and the powerful determination to
solve problems for people.
Church law, unlike civil law, begins with a presumption in favor of
the validity of every marriage. But today pragmatism is changing that
practical presumption in the minds of both tribunal officials and the
Catholic public at large. Today, the very brokenness of a marriage
seems to weigh in favor of a presumption of invalidity, and the task
of those involved in tribunal work seems to be to find a way of
legally proving this presupposed invalidity. It is not unusual today
to meet even defenders of the marriage bond, tribunal officials, who
share this same presumption along with advocates and even judges.
Law and psychology
However, the influence of this pragmatic approach, taken by itself,
could not have produced the annulment explosion in these countries.
It may explain why the explosion took place here first, but there are
also factors directly related to the law of the Church that made this
rapid expansion possible in the first place. These other contributing
factors involve changes in the Church's marriage law in the new 1983
Code of Canon Law and with changes in legal procedures over the past
25 years. Both of these factors are connected with the growing
influence of modern psychology on the Church's approach to law.
Today Church jurists have devised much broader grounds for judging
the invalidity of marriages, based upon a lack of free consent. Many
modern psychological theories tend to restrict the notion of human
freedom, and where freedom is judged to be lacking in individuals
giving the consent that establishes marriage, their marriages will be
judged to be invalid. Given the presumption that <all> failed
marriages are probably invalid, and given the heavy influence of
deterministic psychologies in the world and in the Church today, the
floodgates have opened.
Indeed these same deterministic theories already had had their impact
on the practical moral life of Catholics, with many moral theologians
downplaying the existence of sufficient freedom to commit mortal sins
in their daily life, thus doing away with personal culpability for
most serious sins. It is this influence of deterministic
psychological theories that the Holy Father seems to be referring to
in addresses to the Roman Rota, the Church's highest marriage court,
when he suggests that certain false anthropologies are affecting the
Church's administration of law, which can lead to the easy granting
of annulments in certain countries. These anthropologies severely
narrow the scope of human freedom, and either ignore or deny the
effects of grace on human freedom.

To understand how jurisprudence in the area of marriage can be


affected by an uncritical reliance on the conclusions of certain
psychologies regarding human freedom, we must begin from the fact
that a marriage is created only by a truly free act of consent of the
partners. Thus there are a number of ways in which a person can claim
that a marriage was never contracted, but in one way or another they
will all have to do with a failure to place a valid act of consent,
thereby making the marriage null.
One way a party can petition for an annulment is to claim that one or
both parties in a failed marriage gave consent to something essential
to marriage that they were in fact incapable of validly consenting
to. For instance, if one of the partners was permanently impotent at
the time of consent, his consent was invalid, and no marriage was
ever established. (Since one of the essential things consented to in
marriage is to give oneself to one's partner in the marriage act, the
act by which marriage consent is actually consummated, the inability
to consummate this act makes one incapable of giving valid consent to
a marriage union.) On the other hand the fact that a person is simply
sterile--not actually impotent--does not of itself invalidate consent
and marriage, because consent involves merely a consent to the
marriage act, and a consent to be open to children. It is not the
gift of children which consummates the marriage, for it is not within
anyone's power to assure that marital intercourse will ever result in
a child, but simply the gift of oneself in intercourse--something that
is under the dominion of each partner's free will. It is the marriage
act simply open to life which, in itself, perfectly symbolizes and
consummates the marriage vows in that total gift of self made in the
act of consent. Thus physical impotence makes valid consent to
marriage impossible, based upon a biological impediment, for one
cannot <consent> to do what one cannot <actually> do.
This is the only impediment to a valid marriage that is purely
physical in nature. But there are and always have been other
invalidating impediments that involve the mental capacity to give
free consent--that is, the freedom of the human will in itself.
Free will, consent, and discretion
It is in this area where we see the great changes in Church law
related to marriage today, and here we can find the roots of the
growth of annulments since the Second Vatican Council. For instance,
one traditional way of demonstrating the invalidity of a marriage was
by showing the lack of the necessary understanding to support an act
of consent to marriage. Human freedom depends upon our actually
understanding, at least essentially, what we are consenting to in
contracting a marriage. Freedom and understanding go hand in hand,
and are related to each other in a certain order. A basic
understanding of what essentially is being chosen or consented to
must precede and accompany the act of the will, or else there will
not be sufficient freedom in the act of the will.
Thus a severely retarded person, who cannot possibly understand the
<essential> nature of marriage and its <essential> obligations, is
simply incapable of an act of placing the free consent necessary to
enter marriage. This lack of understanding causes what today we refer
to as a "lack of due discretion" related to the essential obligations
of marriage.
The Church's law also makes it absolutely necessary for the validity

of consent that the bride must have reached her 14th birthday and the
groom his 16th. Since the capacity for intercourse comes earlier, it
is clear that this impediment to marriage has something to do with
the lack of necessary discretion among young people below those ages.
The Church in her law recognizes that a greater mental discretion is
necessary for the free consent to marriage than for the committing of
a mortal sin.
Along the same lines, persons who are seriously mentally impaired,
even temporarily, <at the time of consent>, whether this impairment
of mental capacity be due to drugs, drunkenness, or some other grave
mental pathology, simply are incapable of understanding what they are
consenting to at that crucial time. This <lack of due discretion>
makes the consent, and thus the marriage, invalid. In all of these
cases, human freedom is undermined by a defect of the understanding.
Some serious physiological or psychological disorder has impaired the
understanding so gravely that the person does not have the necessary
discretion to make an act of judgment regarding the object of consent
which is sufficient to form a truly free act of consent.
Finally, there is the case of a person who has the necessary
discretion to ground a sufficient act of free consent, but who also
has an intention in his mind at the time of giving consent to
marriage which is contradictory to-- incompatible with--the very nature
of marriage or one of its essential obligations. One cannot validly
consent to fulfill obligations one simultaneously intends <not> to
fulfill. An example of this sort might occur in a marriage where one
or both of the partners would intend only a trial marriage, thus
contradicting the essential indissolubility of a true marriage; or
where one partner intended at the very time of contracting marriage
to be unfaithful to his spouse, thus contradicting the essential
unity of the covenant; or where one or both partners intended
absolutely to exclude any possibility of children resulting from the
marriage, thus contradicting the essential ordination of marriage to
offspring. In all such cases consent to marriage would be invalid.
The act may be free, but it is also contradictory to the nature of
marriage, and such consent is incapable of establishing a true
marriage.
The divorce mentality
All of the above grounds for arguing invalidity have always been
available for couples seeking to have their marriages declared
invalid by the Church. Yet until the last thirty years, the era
following Vatican II, the number of annulments granted by the Church
worldwide was very minute indeed. The great difficulty of obtaining
an annulment in the Catholic Church was widely known in the past, and
it demonstrated that the Catholic Church really believed what it
taught bout the permanence of marriage. Today that confidence is
slipping badly in certain countries, for whatever else the result of
this proliferation of annulments may be, one undeniable result is
that it is creating a virtual "divorce" mentality among many
Catholic. This mentality undermines the notion of the permanence of
marriage in general, helping to create a phenomenon in our Church
which is not substantially different from the experience of other
churches which actually do permit divorce. Parish priests reveal that
divorced Catholics now come to the rectories thinking that obtaining
an annulment is merely a matter of filling out the necessary papers
and being patient. Applicants know that many priests and tribunals
will even help them to find suitable grounds, that the vast majority

of cases-- reportedly 90 percent--involve some kind of psychological


grounds, and that the vast majority of cases submitted result in
decisions favorable to the petitioner.
Every divorced Catholic today knows of someone who has received an
annulment in circumstances which he judges to be the same as, or even
less promising than, his own. Catholics everywhere know cases in
which relatives or friends married twenty, thirty, or forty years,
sometimes with many children, have received an annulment on the
grounds of immaturity and lack of due discretion at the time of
marriage. Indeed, a growing number of divorced Catholics today don't
bother waiting for the Church's judgment on their previous marriage;
they simply enter a new civil marriage, confident that the Church
will eventually declare their previous union invalid and "bless" the
new one.
It is easy for Catholic leaders to protest that an annulment is not
the same thing as a divorce. That is absolutely true. But when
annulments are so readily available, marriages especially those
experiencing grave difficulties--can be undermined as easily by a
growing "annulment mentality" as by a "divorce mentality" in other
churches.
A plague of good intentions
Before going any further, it is important to eliminate two possible
misunderstandings. First, the dramatic growth in annulments has not,
at least for the most part, been motivated by bad will. On the
contrary, the situation has evolved from the sincere desire to help
people with marriage problems. Second, this is not an issue which can
very adequately be understood in terms of the divisions between
liberals and conservatives, with the former being pegged as favoring
the expansion of annulments, and the latter as against this
expansion. In fact, some liberal Catholics actually tend to ignore
the tribunal process, since they tend to question the Church's
teaching on marriage and divorce in toto. On the other hand,
conservative Catholics--whose marriages also can fail--tend to accept
the Church's teaching on divorce, and hope that something can be done
to allow them to lead a normal married life in the future.
Thus it is perhaps even more likely that the Catholic who bothers
about an annulment today is a more traditional Catholic than those
who do not, and it is often tradition- minded clergy who want to help
their people get back to the sacraments.
So what more precisely has gone wrong? There is already a general
sense among Catholics, and especially among those who are actually
concerned with this problem who actually see it as a problem--that the
contemporary trend is directly connected with new approaches to the
psychological grounds for annulment. It is rare indeed that one
actually hears about a case that has been decided in favor of an
annulment on <other> than psychological grounds, and even rarer that
a psychological case has <not> been decided in favor of the
annulment. By far the most common ground cited today is the lack of
due discretion necessary to give valid consent. And this lack of
discretion rarely has to do with a lack of knowledge as such; in one
way or another it usually involves some psychological incapacity.
As we saw above, the case for an annulment based upon a lack of due
discretion in judgment is not a new one. The human will is a rational

appetite precisely because it receives from the human intellect the


rational objects of choice and intention. Thus if the intellect is
incapable of providing the free will with truly rational objects or
ends to be willed--objects or ends that are based upon a discretion of
judgment proportionate to the nature of these objects or ends--the
will either cannot act at all, or at least cannot elicit a
sufficiently free act of consent. It has always been clear that a
person who cannot understand, or does not understand, at the time of
marriage consent, that marriage is a lifelong union, or that marriage
demands the intention to be absolutely faithful, or that marriage has
as a natural end the procreation and education of children, simply
cannot elicit the necessary free consent to contract a valid
marriage.
In short, under the old Code of Canon Law the "lack of due
discretion" had to involve one or more of St. Augustine's three goods
of marriage--or, for those who prefer the scholastic terminology
exemplified in St. Thomas, the principle end of marriage and the two
essential properties of the marriage contract: fidelity and
indissolubility. The Church used this latter schema for the law of
marriage in the 1917 Code, and established that the bride had to have
at least the discretion of a 14-year-old, and the groom at least that
of a 16-year-old, to give valid consent.
The new Code changed the legal terminology back to the Augustinian
notion of goods of marriage, but maintained exactly the same age
requirements as the old Code. Many canonists in the West, however,
seem to have a problem with these age requirements, at least in
Western societies, and it is almost a complete certainty that any
marriage that took place today between a young woman of 14 and a
young man of 16, and later failed, would be declared null on the
basis of lack of due discretion. It seems that while our culture
considers its children more mature and more sophisticated in nearly
every other aspect of life, when it comes to marriage we see them as
incapable of sufficient maturity of judgment to enter a valid
marriage--not just a successful marriage, but a valid marriage,
period. Indeed when it comes to failed marriages today, American
tribunals will often make this judgment of "lack of due discretion"
as a ground for annulment in cases where the partners are beyond the
age of 14 or 16, well into their 20s and sometimes beyond.
Roots in a false anthropology
What has changed, then, to make "lack of due discretion" today so
expansive when it comes to granting petitions for annulment? As we
mentioned above, some of the Pope's addresses to the Roman Rota make
it clear that he is concerned about the plethora of annulments in
some countries, and the devastating "annulment mentality" this growth
breeds; he is convinced that this growth in some part at least is due
to a false anthropology that is affecting some tribunal judges'
decisions related to human freedom and due discretion of judgment.
A false anthropology leads to arbitrary decisions that are
destructive of truth, says the Pope. The truth he is referring to
here is the truth of marriage and its permanence, the truth of human
freedom, and the truth of the judicial process itself. The end result
is that judges often seem to presuppose that any failed marriage
indicates, by the very fact of its failure, that there must have been
a lack of freedom, due most likely to a lack of due discretion, which
prevented a true marriage from taking place.

What is happening in our tribunals, then, is the result of a false


anthropology that tends to minimize human freedom in general, and
particularly in relation to the moral life--a practical tendency in
our day to minimize the capacity of people to exercise free choice,
whether it be to choose freely to commit a mortal sin, or to give
free consent to life-long vocations such as marriage, the priesthood,
or religious life. The Pope has commented many times over the years
on this destructive denial of human freedom and responsibility, and
he has insisted that this negative anthropological judgment on human
freedom ends by denying the role of God's grace in judging the
capacity to embrace the essential obligations of the married state.
It is not rash to speculate that few if any tribunals today would
even think it a juridical consideration whether the partners ever
took advantage of the means of grace available in the life of the
Church-- confession, communion, prayer--in trying to overcome the
problems in their marriage.
But the question goes beyond the effect of false anthropological
assumptions. Another aspect of the problem is that many officials in
our tribunals today will pick up dubious conclusions from the mine
fields of modern psychology in determining where a true "serious
psychological pathology" exists at the time of marriage. Under the
legal procedures adopted in recent years, judges find evidence of
marital troubles and declare that the roots of this later pathology
were present at the time of consent, even when there is no actual
evidence beyond hearsay to support this judgment.
The problem in the Code
All of these elements may have a role to play in the annulment
explosion, but there is at least one other very important development
which lies not in false anthropology, not in false psychology, and
not even in legal procedure. There is a problem with the law itself,
a problem with the new Code.
The problem in the law itself has to do with the definition of
marriage and the object of consent in the new Code. If someone had
asked thirty years ago, "What am I consenting to, and concerning what
must I therefore have sufficient discretion to give free consent?"
the answer was not hard to determine, even for those who were not
canon lawyers. Marriage was defined in the old Code (canon 1013) in
terms of three things: its primary end, the procreation and education
of children; and the two essential properties of the marriage union,
its unity and indissolubility.
Understanding unity in terms of total fidelity, and indissolubility
in terms of the good of the sacrament, marriage was simply being
defined in terms of the three goods of Augustine, clarified by the
teaching of St. Thomas on the role of the primary end in this
institution.
Therefore when someone asked thirty years ago what the partners must
consent to in order to make a valid marriage, the answers were
relatively simple. Under the old Code, the object of consent involves
what pertains essentially to the three goods of marriage. What a man
was handing over to his spouse, under this law, was very clear, and
it had to do with what constituted marriage as a unique communion of
life, essentially distinct from all other forms of human
relationships. The old Code, in canon 1081, declared that what

constituted the essential object of consent was the exclusive and


perpetual right to each other's person in the act of intercourse. the
act which consummates the marriage contract.
This narrowly defined object of consent made it abundantly clear
exactly what it was that the partners had to have sufficient
discretion of judgment about, in order to give a valid consent: they
had to have knowledge (mature judgment) "at least that marriage is a
permanent union between man and woman for the procreation of
children." (canon 1082) And how mature did they have to be? The same
canon goes on to state, "Ignorance on this point is not presumed in
persons who have reached the age of maturity." This last point
corresponds perfectly with the Church's regulations on the age
necessary to marry, and the whole section on consent shows how the
Church understands what is <essential> to marriage, and the consent
which establishes marriage, in terms of the primary end and the other
two goods of marriage.
Today, much of this old system of law has been altered in the new
Code, and the result seems to have something to do with the explosion
of annulments. First, the definition of marriage has been altered.
The new canon law of marriage proposes a definition which excludes
all the old language, involving the purposes and essential properties
or marriage, and simply constructs a definition that is meant to
reflect the more biblical and pastoral language found in the sections
on marriage in <Gaudium et Spes>:
The matrimonial covenant, by which a man and a woman establish
between themselves a partnership of the whole of life, is by its
nature ordered toward the good of the spouses and the procreation and
education of the offspring... (canon 1055)
American canonists today seem to agree, virtually unanimously, that
this definition constitutes a major change in the Church's
jurisprudence of marriage. Indeed, even a man as conservative in his
general writing as Cormac Burke, now a judge on the Rota, sees this
as a significant change--although he does not regard the change as
being quite as radical as most American canonists deem it. Father
Burke takes the position in two recent articles, one in <Communio>
(Summer 1992) and another in <Homiletic and Pastoral Review> (March
1995), that there can be but one conclusion drawn from the Council
and the new Code. The Church, he tells us, now considers marriage to
have two inseparably united and essential ends: the <bonum coniugum>,
the good of the couple, and the <bonum prolis>, the good of
offspring.
There is a problem in simply translating the terms "good" and "end"
when it comes to marriage, and even Father Burke concedes that the
notion of <bonum coniugum> "is a new term, which is only very
exceptionally to be found in ecclesial writing before it was accepted
in 1977 into the schemata of the new Code." However, he argues that
the acceptance of this novel term in the Code as an end of marriage,
is "a clear development of the personalism of <Gaudium et Spes>."
Indeed he even argues, based upon a rather dubious reading of St.
Thomas, that the Angelic Doctor's understanding of the ends of
marriage, and in particular his treatment of the <mutuum adiutorium>
(the loving support which husband and wife give each other in life,
which St. Thomas defined as the secondary purpose of marriage),
"moves on a basically natural and markedly earth- bound level..."
Father Burke now believes that this naturalism of St. Thomas, and the

seven hundred years of thought following him, has at last been


overcome by the Church of the 20th Century.
There is little doubt that Cormac Burke now accepts it as certain
that the Church today defines marriage with two equal and
interrelated primary ends, which are the two goods mentioned in the
definition of marriage in the new Code. Nonetheless he does not go so
far as explicitly to deny the subordination of the old secondary ends
of the 1917 Code to the end of procreation, a position that would put
him squarely at odds with Pope Pius XII, and he escapes this problem
by refusing to identify the older Code's ends with this new term,
<bonum coniugum>.
The ends of marriage
Nonetheless Father Burke is convinced that a significant
"development" of doctrine has taken place, and even chooses to ground
this development on the remarkable argument that the Council has
changed the doctrine of the hierarchy of ends by its <silence>. Like
others who have advanced this "argument from silence," he apparently
chooses to dismiss a statement by John Paul II--made in 1984, after
this same Pope promulgated the new Code--which flatly denied the
notion that the Council had changed the hierarchy among the ends of
marriage:
In this renewed formulation, <the traditional teaching> on the
purposes of marriage (and their hierarchy) is <reaffirmed> and at the
same time <deepened> from the viewpoint of the interior life of the
spouses, that is, of conjugal and family spirituality. [emphasis
added]
The fact that the very same Pope who promulgated the Code now clearly
states that the Council, and Paul VI, "reaffirmed" the Church's
"traditional teaching" concerning the hierarchy of ends in marriage
and did so in his famous series of allocutions on
marriage--underscores the point.
The traditional doctrine of the hierarchy of ends has little or
nothing to do with "importance" in the sense that procreation would
be judged to be more important for the couple than the mutual help
they give to one another, and the mutual love they share. What the
hierarchy of ends established was the exact <juridical> nature of
marriage as a bond of love and communion distinct from all others.
Marriage, juridically speaking, is that partnership of love, that
ontological union between a man and woman, whose specific
purpose--that is, the purpose that essentially determines the specific
character of this union as distinct from all other forms of loving
communions--is its ordination to the procreation and education of
offspring. The other ends of marriage are subordinate to this end
only in the sense that they themselves receive their specific
character from their relation to the end of procreation.
Calling this procreative end primary or principal does not mean that
it is in itself more important than the good of the couple, or their
growth in the communion of their love. It simply means that this is
the principal end, because it entails a good that embraces the good
of the couple and specifies the nature of their communion. The denial
of this hierarchy of ends leads directly to the incomprehension as to
why marriage and sex are limited to heterosexual unions, and it opens
the door to the flood of annulments we see today.

Marriage is that union of life and love whose very nature ordains it
to be fruitful in terms of procreating and educating children. There
are other kinds of unions of love and life that are not so ordered,
and other kinds of friendships, but sex within those unions is
fundamentally disordered. Likewise, mutual help in marriage is a form
of mutual support which in the normal course of things will be given
its unique character by its own ordination to life. Surely, this
mutual help extends beyond helping with the care of the children,
involves far more than raising children, but its ordination to
children is what makes it unique.
Obviously sex is an act intended by God to perfect the couple's love
even when children do not result, so long as the intrinsic nature of
the act is not deliberately distorted. Nonetheless the act itself
always retains its specific nature as an act of love-- unlike the many
other non-genital acts of love--by its intrinsic relation to the
generation of new life--something those other acts do not possess, and
cannot produce, under any circumstances.
Without hierarchy, chaos
The danger, juridically, with the so-called personalist approach to
marriage arises only when this approach denies the proper ordering of
married love to procreation, and the doctrine of the hierarchy of
ends that reflects and interprets that order. There is a theological
fruitfulness in the orthodox, personalist approach to the theology of
marriage, but there are also substantial difficulties involved in
transferring this approach to the area of canon law. It is these
difficulties that have lead even canonists as good as Father Burke to
try to identify the <bonum coniugum>, as a second integrated "end" of
marriage, even though he tries to restrict it to the supernatural
good of the sacrament. He makes it clear that he sees the great
dangers that arise when one interprets this good as mutual help and
the communion of life in a broad sense. It is simply not very easy to
identify this <good> of marriage with an <end> of marriage. It would
be better to recognize that the new Code simply omits the secondary
ends of marriage, because they do not pertain to the question of
validity, and then try to define the essential rights and duties of
the marriage union.
The same is true with the object of consent. The new Code is
problematic; even Father Burke admits that when he says that it will
take much time and jurisprudence to determine the content and
consequences of the new canon. In that case, either it contains new
elements or it is simply vague law. Just what is the essence of this
contract or covenant which is established by an irrevocable consent,
by which the partners "give and accept each other?" That is a
beautiful and expressive phrase, but what <exactly> does it imply in
law? In the old Code the object of consent was clear. It was the
handing over of the right to intercourse, exclusively and
perpetually. With the new Code, the object of consent is not all that
clear, and we are honestly told by a good canonist like Father Burke
that it will take some time to determine just exactly what it is,
essentially, that must be handed over in order to make the "gift of
self" and thus establish a valid marriage.
The American courts have decided that the object of consent in
relation to the <bonum coniugum> indeed involves quite a bit more
than the exclusive and perpetual right to the gift of self made in

the act of intercourse. They see it as an essential right to a total


communion of life and love, and thus each court is developing its own
personality inventories of psychological qualities necessary to make
this total gift of self in marriage. Thus the essential elements of
marriage, the object of the act of consent, and the <bonum coniugum>
are now legal concepts about as broad as one can imagine, and this is
the key to understanding the explosion of annulments. As one cynical
friend once said to me, if you can't get a failed marriage annulled
today, you must have a canon lawyer lacking in imagination.
Finally, what is marriage?
It is not simply an inadequate procedural methodology that has caused
the explosion of annulments. The dramatic increase also clearly seems
to be affected by an inadequate specification in canon law of just
exactly what marriage is, essentially, and what the object of consent
is, essentially. The early critics of this new jurisprudence, which
actually came into practice during a period of experimentation prior
to the promulgation of the new Code, had warned what the consequences
would be if the new Code tried to adapt the language of a pastoral
document from the Council into a technical, legal work like the Code.
These critics even included members of the Apostolic Signatura, the
Church's highest tribunal, and they turned out to be largely correct
in their prognosis. But they were not prophets in any real sense, for
the explosion of annulments had already begun years before the new
Code, as tribunals were already operating with the new legal
definitions of marriage and the object of consent, the definition of
marriage with two co-equal and essential ends, including the much
broader <bonum coniugum,> and the much broader object of consent
based upon it.
So what does all this mean? Has the Church inserted something
heterodox into the Code, which now must be corrected? Is the new
language of the Code simply a new emphasis, or a significant
alteration of the traditional doctrine of the ends? Such a change
would be very difficult, if not impossible, to defend as a
"development," as opposed to an outright reversal, of the position
set forth by Pope Pius XII in <Casti Connubi>. To suggest, as Father
Burke does, that the teaching of Pius XI opens a door to a new
ordering of the ends of marriage because he spoke of the ultimate
perfection of marriage in the supernatural life, is simply to ignore
the clear teaching of that encyclical on the ends of marriage, and is
to suggest that Pius XII did not really understand the implications
of his predecessor when he again reaffirmed this same teaching on the
hierarchy of ends and the subordination of all other ends to the end
of procreation.
However, there is no need for anyone to defend the orthodoxy of the
Code. All one has to do is take serious the teaching of the very same
Pope who promulgated this new Code when he spoke out on the issue of
the hierarchy of ends just months later, and then we are on our way
to a clarification of the Code. There has indeed been a deepening of
our understanding of the doctrine of the ends today, but this
deepening involves our understanding, and it leaves the doctrine of
the hierarchy of ends intact.
The new canon defining marriage chooses to do so in terms of the
goods of marriage rather than its ends. One of those goods,
procreation, <bonum prolis>, is in reality the essential--in both the
ontological and juridical sense specifying the end of marriage, as a

communion of life and love. The other good, the <bonum coniugum>, can
be understood as including a relation to all three traditional
goods--children, fidelity, and indissolubility. Children are a good
for the parents, contributing greatly to their human development and
perfection, both naturally and supernaturally, as Vatican II says. In
this aspect, the two <bona> are virtually identical.
Fidelity is another essential element of the <bonum coniugum>,
because it is an essential quality of the love and the partnership it
engenders, and contributes to the perfection of the partners and the
raising of children. Indissolubility is likewise an essential element
related to the <bonum coniugum> because it is essential to the
partnership and the love that arises from that communion of life and
perfects it, and is also protective of the broader family. The
necessary discretion to contract a marriage, the necessary psychic
capacity to assume marriage and its essential obligations, pertains
to these essential elements, the three <bona> of St. Augustine, which
include the essential end of St. Thomas, just as they always have.
The object of consent likewise must pertain to these essential
rights, handed over in this mutual gift of self, which necessarily
includes fidelity, permanence and fruitfulness, in relation to that
act which incarnates that kind of love. It is a permanent right,
because such love is fixed until death--a right to the act of
intercourse which "embodies" that love, which is exclusive, which
betokens fidelity, and which naturally is open to life because its
totality includes the gift of fertility. It is a marvelous
development of our understanding of the older Code's right to the
body, but it is not a radical departure in any way from that older
expression of the object of consent.
We face a choice: Either the marriage tribunals must interpret the
new language of the Code along these lines, or they will witness
ever-growing chaos. If the <bonum coniugum> and the mutual gift of
self that constitutes the object of consent are defined as including
the right to a happy marriage, to a partner with a mature personality
and to whatever else pertains to this dimension of conjugal
communion, the annulment explosion will continue to grow worse. There
will no longer be good and bad marriages in the Catholic Church, but
only good and invalid marriages. The Code must be given an
authoritative interpretation on these matters sooner or later, if the
range of grounds for annulments is to be kept rational. If it's too
much later, the damage to the faith of the Catholic people regarding
the permanence of marriage is going to be very painful to correct.
"Polonaise," a pastor and teacher with advanced degrees in both
systematic theology and marriage and family, wrote and submitted this
essay on the mistaken assumption that Catholic World Report did not
intend to identify the author. CWR regrets the decision that
Polonaise has made--to write under a pseudonym, in order to avoid
giving offense to parishioners who have, in good conscience, sought
and received annulments. Nevertheless, because we did not want to
deprive our readers of his insights, we have consented to his request
of anonymity. Because we believe that this essay could spark an
important and enlightening debate between authors of unquestioned
orthodoxy, we have asked Father Cormac Burke to respond to this essay
in a future issue.
This article appeared in the June 1995 issue of "The Catholic World
Report," P.O. Box 6718, Syracuse, NY 13217-7912, 800-825-0061.

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