THE LAITY, DIVORCE AND REMARRIAGE

...In other words, the Church tribunal is acting on a legal fiction when it presumes to decide, in individual cases, that a marriage is clearly subject to an annulment or clearly subject to a divorce...

...The oft-expressed concern of several members of our committee as to the unreality of this method of working fell on deaf ears...

...This decision can be made only by the parties to a marriage...

...The purpose of this article is to encourage the laity to speak to their bishops concerning the rights of divorced persons to remarry...

...Above all, the committee failed to acknowledge the fact that most divorced Catholics remarry and that the Church has a responsibility to help remarried Catholics seek and find personal growth in Christ within the Church...

...An annulment is a decision, or an acknowledgment of the fact, that a marriage never existed even though a man and a woman ostensibly went through a form of marriage, lived together for a time and had children in their marriage...

...For example, in 1974, the Brooklyn tribunal granted 725 annulments...

...the amnesty solution...

...All of the members of the committee were priests...

...They are not seeking, certainly not begging for, privileged treatment...

...Neither is it good that the decision as to whether a marriage has been consummated, physically or otherwise, is made by celibate clergy...

...The Church should acknowledge that marriages die, that full divorce takes place, when a couple are or become intolerable to each other as persons...

...From 1967 to 1973 he was Consultor to the Pontifical Commission for the revision of the Code of Canon Law and adviser to the Canon Law Committee of the U.S...

...Any marriage in which one person is not baptized is open to divorce in Catholic Church law...

...While they are well aware that their first marriages failed, they very often have no reason to believe that they failed as persons in these marriages or that they sinned in remarrying...

...But more and more scholars in Scripture, history, theology and canon law, as well as scholars in the necessarily related fields of gynecology and psychology, are saying that the answer is "No...

...Hundreds of priests in the United States are devoting their talents and energies to tribunal work, trying to help persons whose marriages are dead to obtain tribunal annulments and divorces...

...Priests and religious are now able to be declared free of their vows...

...They are not asking to be permitted to participate in the Eucharist...

...One major problem our committee faced was the fact that we had no information concerning the work being done by the committee working on the proposed revision of the substantive law of marriage, i.e., the nature and meaning of marriage, the impediments to marriage, etc...

...The present Church law is based on a clear affirmative answer to this question...

...4) In Church law, any marriage which has not been physically consummated is subject to divorce...

...However, the Church is flying in the face of reality when she absolutizes this imperative to the point of maintaining that marriage vows which have become impossible of fulfillment are sacred bonds and, when both partners are baptized, signs of the union of Christ and his Church...

...This practice is called by various names: the internal forum solution...

...It is time for married persons to voice the anguish of those of their number who live in intolerable marital situations, to vindicate the rights of divorced Catholics to remarry publicly in the Church and to be welcomed fully and openly in the celebration of the Eucharist...

...It is a contradiction in terms to speak of a private or secret reception of the Eucharist...

...As will be explained in the course of the article, the reasons why the Church grants divorces are unreal, are not related to the existential reality of marriage...

...Ignatius Loyola of Hicks-ville, New York, proposed, as a specific means of reconciliation during the Holy Year, that Catholics in stable second marriages, after personal consultation with their priest-confessor be officially recognized to have a right to share in the Eucharist...

...The Hicksville Parish Council proposal is a landmark statement...

...Marriage of its nature is a public mutual commitment...

...This means that in Church law considerably more than two-thirds of the marriages in the world are subject to divorce...

...The committee of which I was a member was charged with the task of proposing a revision of the procedural law governing the granting, or not granting, of Church annulments and divorces to persons in intolerable marriages...

...Public participation in the Eucharist is a sign that a person is welcome in the Christian community...

...Divorced Catholics seek a vindication of their rights to remarry and to be full-fledged Catholics in the public teaching and law of the Church...

...No bond is sacred which dehumanizes the persons bound...

...As a relationship, it is an exchange of mutual regard and marital affection...

...They are not interested in any condescending, half-hearted, or demeaning reconciliation...

...Would that other parish councils, as well as vicariate and diocesan councils, would follow the lead of the Hicksville pioneers and set before their bishops similar and even stronger proposals...

...Obviously, none of us had suffered the anguish of divorce or had been in a second marriage, again happily or unhappily...

...The internal forum solution lacks an ecclesial dimension...

...the good faith solution...

...In Church law, every divorce, is a privilege...

...As a matter of fact, Church tribunals or courts grant more divorces than annulments...

...A divorce is a decision, or an acknowledgment of the fact, that a true marriage is dissolved...

...They are not seeking permission to receive Holy Communion...

...An annulment means that a marriage never existed...

...Married couples know that the answer is "No...

...There is no cogent, Scriptural or theological evidence that the marriage of two baptized persons is any more indissoluble than the marriage between two unbaptized persons...

...Even granted this optimistic maximal figure, we will be faced with the fact that tribunals will be effectively helpful to perhaps one out of two hundred divorced Catholics in the United States...

...These are some reflections which should be kept in mind in the reformulation of Church teaching and law on marriage...

...There will be no advertence to civil annulments or divorces nor to annulments or divorces emanating from religious communities other than the Catholic Church...

...The present law of the Church, allowing for divorce simply because one or both parties have not been baptized, is unreal...

...However, I salute the members of the Council for their readiness in urging "the welcoming back many of our separated brothers and sisters with the same love and compassion that Jesus taught us...

...Consummation is the heart of marriage...

...What does this say about the Catholic appreciation of Jewish, Moslem, Hindu, Buddhist religions and cultures...

...It should not be looked upon as private or secret...

...In each of the neighboring tribunals of New York, Rockville Centre and Newark, considerably less than one-third of that number of annulments were granted...

...With regard to the remarriage of divorced persons and their right to receive the Eucharist, there should be no such thing as a private or secret solution...

...The fact that the tribunal of Mobile, Alabama, which serves a Catholic population of 47,680, granted 150 annulments in 1974 dramatizes the inequality of tribunal performance...

...Doubleday, 1973), was a member of the Marriage Tribunal of the Archdiocese of New York from 1943 to 1968...

...It is love in marriage...

...The number is increasing...

...3) To paraphrase what was said above, it is an utter fiction to state that the Catholic Church does not grant divorces...

...There are now 5,000,000 divorced Catholics or Catholics married to divorced persons...

...The Church would be better served if priests experienced in counseling directed themselves to the task of helping lay persons find better ways of preparing for marriage and helping married couples see that the problems and sacrifices inherent in marriage may be the occasions of growth and maturity...

...National Conference of Catholic Bishops...

...Earlier this year, the Parish Council of the Church of St...

...There is no advertence to a right to divorce...

...This change in Church law came about because the Church heard the anguished voices of persons experienced in the priesthood and religious life...

...It is for this reason that I preface this article with a description of the words "annulment" and "divorce...

...Not one of us had been married, happily or unhappily...

...the good conscience solution...

...For five years, from 1967 through 1972, I was a consultant to the Pontifical Commission for the Revision of the Code of Canon Law...

...THE LAITY, DIVORCE AND REMARRIAGE STEPHEN J. KELLEHER Speaking out on the rights of divorced persons Within the Church today there is an ongoing struggle concerning the rights of persons in intolerable marriages to divorce and remarry...

...Bishops and the Pope and in effect since July of 1970, which have led to a twenty-fold increase in annulments...

...In some instances, only God knows...

...Almost invariably, the persons advocating this practice use one or more terms such as the following: "This practice is to be tolerated---They should be allowed to receive Holy Communion---They are to be permitted to participate in the Eucharist--Despite their sin in divorcing and/or remarrying---Even though they have failed to live up to their vows---These are exceptional cases---They are to be reconciled through the Sacrament of Penance---This solution is to be applied privately or secretly" Divorced and remarried Catholics and divorced Catholics who intend or desire to remarry are not looking for toleration of their status...

...There is no question but that the Church should continue to set forth the general imperative found in the Bible, both in the Old and the New Testament, that every marriage, whether the parties are baptized or not, is intended to be permanent...

...monsignor Stephen J. kelleher, author of Divorce and Re-marriage for Catholics...

...The Committee's proposed revision is not nearly so open or liberal as the American Procedural Norms currently approved for use by tribunals in the United States...

...Divorce should not be related to the absence of baptism or the absence of physical intercourse...

...I would have preferred that, in the Hicksville proposal, consultation with a priest, not necessarily a confessor, had been made optional...

...Consummation is conjugal love...

...It is often erroneously stated or presumed that the Catholic Church does not grant divorces...

...Another fact of inequality is that some tribunals process cases in six months or less while others take two or more years...

...This is not good...

...It clearly and simply speaks of the right of persons in second marriages to receive the Eucharist...

...The difference in the quality of tribunal performance makes it a fact that the residence of a person may determine whether or not he or she will obtain an annulment and the length of time it takes for processing a case...

...In the consummation of a marriage, a man and a woman become two in one flesh when they give themselves to each other as persons...

...We were in the incredible position of trying to establish procedural law for an unknown substantive law...

...When a marriage is null, the man and the woman in the union are free to marry...

...If divorced and remarried Catholics do not receive Holy Communion publicly, they are not welcome in the community...

...If a couple decide they are unable to grow and mature in their marriage they should be free to divorce and remarry...

...The consummation of a marriage is one of the most intimate of personal acts...

...There will certainly be more, not less, by 1980...

...He served as chairman of the Committee of the Canon Law Society of America which authored "The American Procedural Norms'' approved by the U.S...

...It is often the case that only the married partners know with sureness whether or not and to what extent a marriage has been or may be consummated...

...To relate the consummation of marriage only to the physical act of intercourse, as does present Church law, is to treat human beings as animals or insensate things...

...This proposal was directed to Bishop Walter Kellenberg, the bishop of Rock-ville Centre, New York, with the request that he bring it to the attention of the National Conference of Catholic Bishops...

...2) A number of theologians and canon lawyers, as well as priests in pastoral ministry and lay persons, are saying in effect that, while the present teaching and law of the Church are to be maintained, at least some divorced and remarried Catholics may receive Holy Communion...

...There is no question but that the persons experienced in the life and death of marriage have the primary experience necessary for the formulation of Church teaching and law on marriage...

...They consider it their right to decide in their consciences whether or not they have need of the Sacrament of Penance to exercise these rights before they exercise their right to receive Holy Communion...

...In the article, we will be concerned only with annulments and divorces granted by Catholic Church tribunals...

...Is marriage consummated by one merely physical act of intercourse...

...It is my conviction that the Church cannot grant divorces but can only acknowledge the fact that marriages have dissolved...

...The most significant fact which characterized the work of our committee was that there was no input whatsoever on the part of the laity...

...This total lack of experience in marriage contributed in large part to the failure of the committee to see the need of knowing and having a felt sensitivity to the reality of sex and marriage before attempting to frame laws which would help persons to enter marriage maturely, to grapple with die accommodations necessary in marriage, to try to make the intolerable moments in marriage the occasions of growth, to know whether or not a marriage ever existed and had been consummated, to know if and when a marriage has died...

...The consummation of a marriage has physical, emotional, consensual, social and spiritual aspects...

...As is clear from the above, I am convinced that it is time for the Church to acknowledge the right of divorced persons to remarry publicly in the Church, and not simply the right of Catholics in second marriages to receive Holy Communion...

...The prospects for major reform in Church marriage law emanating from Rome are very, very dim...

...A divorce means that genuine marriage bond is broken and that the husband and wife in the marriage are free to remarry...

...These divorces are granted in virtue of the Pauline Privilege, the Privilege of the Faith and by papal dispensation...

...Its continued use only serves to prolong an unchristian practice-the exercise of clerical power through fear...

...It is also my conviction that in her annulment proceedings, because of the broadened bases for tribunal annulments, the Church is often actually presuming to grant divorces-without using the word-rather than annulments...

...Persons like myself who seek the recognition of these rights base our arguments partially on the lack of reality of the present Church law concerning annulments and divorces...

...There is no sign of Christ in a marriage in which the parties are destroying each other...

...They resent any inference that, they are second-class citizens of the Church, that they are any less integrated with the Church than other Catholics...

...On the basis of thirty years of experience working with persons in intolerable marriages, I have come to the conclusion that it is impossible, with rare exceptions, for anyone to decide with certainty whether a marriage never existed or whether it was a marriage and dissolved or died...

...1) Even with the liberalized procedures of the American Procedural Norms and the broadened bases for annulment, there is no likelihood whatsoever that United States tribunals will be granting as many as 30,000 annulments yearly by 1980...

...It is against this background that I encourage happily married persons, divorced persons and persons in second marriages to assert their rights in the formulation of any Church law concerning preparation for marriage, marriage itself, divorce and remarriage...