Divorce for Catholics?

A quiet reformation that may have profound effects on Roman Catholic discipline concerning divorce and remarriage is gaining ground among U.S. Catholics. It is being led by theologians, canon lawyers and even concerned bishops. The latest arguments for change include a sharp criticism of Roman Catholic annulment procedures by the Canon Law Society of America, and a thoughtful book entitled Divorce and Remarriage for Catholics? (Doubleday) by Monsignor Stephen J. Kelleher, onetime presiding judge of the marriage tribunal of the Archdiocese of New York.

The reformers do not attack Jesus' injunction: "What God has joined together, let not man put asunder," which the Catholic Church has long cited in forbidding divorce and remarriage. They argue that Jesus was stating a moral objective that not everyone, even with the best efforts, can always achieve. The reformers note that even St. Paul recognized that some marriages fail when he accepted the divorces of new Christians who could not get along with their pagan spouses. Now, say Kelleher and fellow critics, Rome should acknowledge other exceptions for modern-day Catholics.

At present, the main avenue for Catholic "divorce" is a declaration of annulment, which concludes that a marriage never existed. Since 1970, the once grueling annulment process in U.S. Catholic marriage tribunals has been streamlined considerably. Experimental rules in effect until 1974 permit tribunals to consist of only one judge, rather than three, and most annulments need be approved by only one court instead of two.

Moreover, the grounds for annulment have been extended through sophisticated judicial interpretation. One historical reason for annulment, "lack of due discretion" on the part of one of the partners at the time of marriage, is now being applied with the insights of modern psychology. Some marriages have been declared invalid because one of the partners was deemed emotionally incapable of making the required commitment. As a result, the number of annulments granted in the U.S. has risen sharply, from about 650 four years ago to more than 3,000 last year.

To U.S. canon lawyers, who met last month in Washington, the improved procedures are still insufficient. Too often, they charge, justice depends on geography: some dioceses have well-informed, full-time tribunals, other dioceses only a few overworked men unfamiliar with the intricacies of canon law. What the U.S. needs, the canonists assert, is "an entirely new system of decision making in marriage cases."

Welcome Home. In his book, Monsignor Kelleher recommends scrapping the tribunal system because it imposes a legal solution on what is essentially a complex personal affair. The better the courts work, Kelleher says, the closer they come to granting de facto divorces with permission to remarry. The process demeans both the law and the marriage partners, he argues, because it requires a declaration that the first marriage never existed, often on grounds that imply that one or both partners were somehow unstable. Kelleher does not say that the church can or should "dissolve" a troubled marriage, but rather that it should recognize that even honest and workable commitments can be exposed to such pressures that they will "die."

Kelleher's solution, which he calls the "welcome home" alternative, amplifies the "good conscience" approach to second marriages (TIME, Oct. 2, 1972), which allows some persons remarried in good faith to return to the sacraments of the church. Though the Vatican has ruled out this procedure, it operates quietly in a number of U.S. parishes.

Kelleher feels that the sub rosa aspect of that approach, however, leaves too many people with uncertain consciences. He suggests that the church should simply "welcome home" those who have suffered failed first marriages to "the central act of Catholic worship, the Eucharist," and to the "protective love of a genuinely Christian community." For U.S. Catholics, whose divorce rate is nearing the national average of one out of four marriages, that kind of compassion could be welcome indeed.

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