Wednesday, July 25, 2007

More on Marriage and Annulments

Last week some very important questions were brought up about the whole issue of divorced and remarried clergy. This was due to a case involving a very important clergyman in the Continuing Anglican movement about which I had never been fully informed (and don't want to be), but about which I was aware that an annulment had been granted years ago. Therefore, I want to clarify some points.

An annulment is not something that a bishop has the power to effect. It is not sacramental, and is not a charismatic power granted to a bishop that enables him to render a valid marriage null. He does not have the power to unmarry people. If an annulment has been granted, we ought to have confidence that the bishop who had the case investigated and then granted the decree of nullity, did so with complete integrity. The whole idea is not that he can make the previous marriage null, but that, upon investigation, he is able to determine that no marriage had taken place as far as the Church is concerned, meaning that there was no marriage in the eyes of God.

The element of a sacrament that is most important in these cases is Intention. Most decrees of nullity are based on conclusive evidence that a previous marriage, even though it was legal according to the state (which means that the children of such marriages are legitimate, since that is a legal matter), lacked the necessary intention, by one of the parties, to be considered a sacrament. This does not mean that, for the marriage to be valid, they had to understand anything to do with sacramental theology at the time; what it does mean is that they intended to enter into a life long union and to practice fidelity. The grant of an annulment means that the Church considers a subsequent marriage to be the first marriage in any case where the former spouse (spouse in strictly legal terms) is still living, rather than a remarriage.

Here are two problems that must be faced honestly.

1) Bishops can abuse this authority, and if they do so, it is their annulment that is null in the eyes of God.

2) Among Continuing Anglicans, there are quite an alarming number of clergy who have been though the process.

The people have a need for examples of godly living by the clergy, and a very special need for clergy to represent in their persons the sacramental life, and our theology teaches us that marriage is a sacrament. If, however, the clergyman has had an annulment, and has since then married in good faith, we have no grounds to treat him as somehow notorious.

I have helped bishops in two investigations. One involved a husband who wanted his wife to commit adultery so he could watch, and to engage in perverted acts to satisfy him. I refer to the "Clinton Preference," named after an ex-President of the United States. The fact is, such acts are not permitted by God; they are not what He had in mind, and not what is meant when it says that God makes a man and wife into one flesh. Any man who wants his wife to perform the "Clinton Preference" is treating his wife disrespectfully and abusively. Any man who wants her to prostitute herself so he can watch, has shown that he was incapable of the sacramental intention to be a husband. The lady in question received her annulment and was able to marry in good conscience. The other case involved a woman who, shortly after a civil ceremony on a beach, began to pull away from her husband, and eventually left him, then divorced him, never giving any reason (no reason appears in the court documents). He never knew if she had another lover; but the abandonment is, in the eyes of the Church, a form of adultery even without another lover. The man received his annulment in this case, and could in good conscience marry his intended (a very good word for our purposes).

In my former work, dealing with legal/medical matters, I came across a heart broken young woman who discovered, after being married a short time, that she did not have any true information about her husband's identity. He disappeared completely; and, after investigation, she learned that he was not the man whose name appeared on their marriage certificate (Maryland had no marriage licenses in those days, but did keep a marriage certificate on file in the Department of Vital Records). She had no idea at all who he actually was. I informed her that, by law, they were never married, and that, as far as we know, he may have commited bigamy. In any case, as far as the Church is concerned, false identity is grounds for annulment.

For the record, I have been married only one time in the eyes of the state as well as of the Church, so I do not know the pain of divorce first hand at all. My marriage is and always has been quite happy. From what I have seen, however, in the lives of people who are going through divorce, is that in most cases there comes a point at which one party wants reconciliation, and the other does not. At this point, pastoral ministry must be done with the greatest of care and of urgency, if possible, to hold a family together. Sadly, sometimes what must be determined is if one party is in a state of mortal sin by refusing to honor the vows that were taken.

This may or may not put minds at rest. I post this to help your understanding, knowing full well that it may cause questions to arise. If so, do not be afraid to ask.

29 comments:

Fr Samuel Edwards said...

Thank you very much for this helpful post, Father Hart, and for your call to face honestly the two problems you named - those of episcopal abuse of the process and of the number of CC clergy who have been through the process.

It seems to me that when a bishop abuses his authority in an annulment case, he is doing exactly what we rightly condemn the revisionists for doing and what earlier reformers condemned the Roman Church for doing, which is treating his office with its powers as as a personal possession rather than as a trust held for another. He is acting as a master rather than as a steward, and to him is reserved the punishment for bad stewards. This is a frightening thing to contemplate, and a matter for a higher court than any of us can constitute (though, of course, if abuse of authority can be proved in the appointed ecclesiastical tribunals, then he should be deposed for it). In the meanwhile, though, the second-guessing of annulments granted is, as they say, above our pay grade: Once granted, they are entitled to full faith and credit. Otherwise, we're back into the radical protestant game of every man a pope.

I won't comment in depth - yet - on the second matter. At this point, though, I will say that the number of annulments among the clergy is scarcely more alarming than the number of annulments among the laity - or indeed the number of remarriages after divorce in society at large and that the root causes in each of these groupings are not substantially different. This is especially sad among a people who are to be in, but not of, the world.

Fr Samuel Edwards

poetreader said...

Thank you, Father, for bringing these thoughts into the open.

Divorce/annulment/remarriage is indeed one of the most serious problems both in secular culture and among Christians today, and at times it can be extraordinarily difficult to find couples, both of whom are still married to their original spouse. I talked recently to an elementary school teacher whose class included no kids still living with both parents, (except for a couple of them whose parents, though together, had never married at all).

What is the role of the Church in all this? Are we somehow called to be God's policemen, enforcing a law that, while objectively true, seems beyond the capability of so many to obey, even if they desire to do so? What do we do about currently existing marriages when a former marriage was valid? When, in fact, are we justified in declaring nullity? Can we ever do so with certainty? I believe the principles we must follow are clear, but our application must be compassionate and more concerned with what is than with what should have been.

Having said that, however, as a way to approach the problem among God's people, is that also an appropriate approach for those called to be the shepherds of the flock? I believe a higher standard applies - not because clergy are more holy than others, but because their teaching role involves more than words. They are to teach and lead by example.

Can a remarried man validly exercize the priestly office? Sure. Can he effectively teach the sacredness and indissolubility of Christian marriage? That is a bit more questionable. Even if the nullity of a first marriage be entirely obvious and beyond all question, an appearance may be presented that militates against the sound teaching.

I am not one to make judgments and declarations in contradiction of those over me in the Lord, but were I asked for advice I would counsel a clergyman or prospective clergyman who had been once married, in reality or in appearance, that a commitment to celibacy would be important if he were to enter into or continue in ministry, and that the choice to remarry should be seen as a relinquishing of the choice to be in active ministry.

For better or for worse, after much thought and prayer, that is how I've come to see it.

ed

DomWalk said...

I'm with you on this, Ed.

My understanding of scripture teaching on this point is that divorce/annullment is allowed in the case of infidelity only. One interesting study I've read is that the infidelity in question is during or prior to the betrothal period, and so is more like annullment.

The scriptural admonitions against causing one to commit adultery in the case of re-marriage seem pretty clear, as well as the statement that the best thing in all cases is reconciliation, which re-marriage obviates.

Is there any scriptural case at all for re-marriage (where the former spouse is alive), especially for presbyters?

Sandra McColl said...

I am absolutely unqualified to say what follows (but when has that stopped me?). I also hasten to add that I am not seeking to pass judgment on anyone--Heaven forbid that I should!

I will say that, having my earliest memories as an Anglican in the days when Anglicans didn't remarry after divorce, then growing up through the days of bishops suddenly giving permission for remarriages, and being rather concerned when I discovered that the Continuum did Roman-style annulments (or, perhaps, annulments in a non-Roman-style), I have always been very uncomfortable with the idea of what I'll call remarriage even where, sacramentally speaking, the first marriage wasn't.

Now, it's clear that East and West don't agree on this, so it's not been a case of Anglicans against the Church. I therefore think there is an opportunity for us to put in place a better system than currently appears to exist.

It seems to me that the annulment approach is, in Rome at least, excessively infected by lawyers (it seems, from my rather inadequate observation, to be about 90% of what their canonists do). But are lawyers the best people to determine whether a sacrament was confected? Further, the entire 'sacramental' approach appears to ignore the fact that, even in contracting a marriage that is later determined a nullity, a man and a woman have made promises and incurred obligations.

Further, and I'm ignorant here and beg the good Fathers for a little instruction, by saying 'sacrament', do we mean something that comes from happening within the Church? Does it have to be Christian, or Catholic?

I ask that question because when Moses allowed divorce, marriage wasn't Christian. For that matter, when the Lord Jesus gave His hard teachings on divorce and remarriage, marriage wasn't Christian either. And when St Paul says you've married a prostitute just because you've lain with her, he wasn't even talking about a legal marriage.

When you marry, you make promises on which yor spouse relies, even if you don't mean them. Therefore, even if a marriage is not sacramentally valid, obligations are incurred. That, I think, is at the root of the scandal sometimes caused to the faithful by certain annulments, or by an appearance of many annulments. At worst, one could take an extreme approach of saying that, if a marriage fails, it must not have been a real marriage in the first place: res ipsa loquitur. Then all divorces would automatically give rise to annulments.

Now, being a seven-sacraments kind of Anglican, I think that declarations of nullity are necessary and appropriate. Mere episcopal permission to remarry is therefore not sufficient, unless the bishop can be satisfied that there is not a sacramental bond that he cannot break.

But I think that it is appropriate for the bishop and those advising him to consider two questions:

1. Was the marriage a nullity?
2. If the answer to 1 is in the affirmative, will allowing this person to remarry (I've already indicated that's the word I'm using) cause a scandal to the faithful and the world at large?

It may be that present-day annulments are granted on the basis of considering both questions. But if that is so, it isn't clear to me. The first question should be answered on the basis solely of intention at the time of marriage, for which the evidence may be the party's subsequent conduct. But the question of nullity and the question of whether a remarriage will cause a scandal must be kept separate.

By 'scandal', I don't mean some faithful being a bit shocked, but that they, and the world, might consider the Church to be teaching something other than the sacredness and indissolubility of marriage, and indeed the solemnity of promises. The three cases outlined by Fr Hart seem to me to be cases where such a scandal would be minimal, if there were any at all.

My thoughts are half formed, and probably pretty poorly informed. I do think, however, that a combination of a declaration of nullity and an Anglican-style bishop's permission is the course to steer in a divorce-ridden society.

Finally, if anyone's still reading, a question: Pre-nups--do they vitiate intention?

Oh, and for the record, I have never been, and am not likely to be, married. I am ugly and have far too many opinions.

Fr. Robert Hart said...

Answers

Some of the comments have brought up issues that need answering.

Ed:

You may be right that for a clergyman divorce should require life long celibacy, but I believe that the burden of proof is on you. Since we have married clergy, and a true annulment means there was no prior marriage in the eyes of God and His Church, the burden of proof appears heavy to me.

Domwalk said:
My understanding of scripture teaching on this point is that divorce/annullment is allowed in the case of infidelity only.

You are referring to Matt. 5:32. Please note that the word used in that verse is not "adultery" but "fornication." The Western Church has long maintained that this word was used because it is, in fact, speaking of an invalid marriage. In the eyes of the state it is legal, but in the eyes of God and His Church it is not valid, so it is fornication, but rather, living in sin. Such a marriage is exactly what we are discussing. The "Mathean exception" appled to an isolated case of infidelity is a mis-interpretation of scripture.

Sandra McColl alluded to I Cor. 6:16: "What? know ye not that he which is joined to an harlot is one body? for two, saith he, shall be one flesh."

Be careful to look at the exact words. St. Paul does not say that this is a marriage. He condemns the joining into one flesh outside of marriage because it is sin. Every time a man and woman engage in sexual intercourse, they become one flesh, but not legally and not sacramentally. It is an important distinction; otherwise some people will feel justified in entering into what the false prophet Mohamed allowed as "temporary marriage." It is simply fornication.

DomWalk said...

You are referring to Matt. 5:32. Please note that the word used in that verse is not "adultery" but "fornication." The Western Church has long maintained that this word was used because it is, in fact, speaking of an invalid marriage. In the eyes of the state it is legal, but in the eyes of God and His Church it is not valid, so it is fornication, but rather, living in sin. Such a marriage is exactly what we are discussing. The "Mathean exception" appled to an isolated case of infidelity is a mis-interpretation of scripture.

Perhaps I wasn't clear.

The "fornication" in question I have seen held to refer to prior or during the betrothal period, so it's not adultery. So, this is limited in scope, per this interpretation. It's specifically not adultery.

Other than this case, where is divorce permitted in the NT? (Sorry if I seem being obtuse or pedantic, I just want to make sure we're on the same page).

My broader question remains, where is *re-marriage*, especially for presbyters, supported in scripture?

Certain Western traditions may support this thing called anullment. Where, other than possibly Matthew above, is it supported in scripture?

John A. Hollister said...

Sandra McColl asked: "[B]y saying 'sacrament', do we mean something that comes from happening within the Church? Does it have to be Christian, or Catholic?"

1. The only Sacrament that can be confected for a subject who is not baptized is the Sacrament of Baptism. That confers on its subject "sacramental capacity", i.e., the ability to benefit from the Grace that is conveyed ex opere operato ("by the thing working itself") by the other Sacraments.

2. The "ministers of the Sacrament of Matrimony" are the married couple. That is, they jointly administer that Sacrament to themselves and to each other. Thus each subject of that Sacrament must already have sacramental capacity, so must already be baptized, which means that each must be a Christian because all the baptized are Christians.

3. The ministers-and-subjects of the Sacrament of Matrimony do not have to be Catholics, any more than the minister and the subject in Baptism need either one be a Catholic. Protestants can confect these two Sacraments, so long as in doing so they intend to do what the Church has always done in those Sacraments and even where they, themselves, misunderstand what the Church has so done.

Obviously, however, no one, whether Catholic or Protestant, can confect a valid sacramental marriage if one or both of the parties to it intend, by an express act of the will, to reject any one or more of what the Church deems to be the essential properties of marriage: willingness to have children if God should send them, fidelity to the other partner, mutual love and support, lifelong commitment, etc., etc.

So the bottom line with respect to sacramental marriage is: Yes, it does happen within the Church, broadly understood as the entire Christian fellowship; yes, it must happen between Christians; and no, it does not have to be Catholic.

Having said that much, I would like to observe that too few of the clergy, let alone the laity, ever realize what a burden we place upon our bishops when we ask them to consider these heart-wringing cases. I have seen my former Ordinary (now deceased) literally pacing his livingroom carpet, wringing his hands, sweating, as he wrestled with the need, on the one hand to uphold Our Lord's Law of the indissolubility of marriage, while on the other properly discharging his pastoral obligation to heal broken lives.

He would pace for a while, then throw himself to his knees and pray, then rise again and pace, then kneel again and pray, all the while acutely aware that one day he would stand before Our Saviour to give an account of his decision in each such case.

The rest of us can slough those burdens off onto the bishops who themselves have nowhere to get rid of them but must, if they are conscientious, face up to and deal with each individual petition.

Any clergyman who suffers from a touch of "purple fever" should be invited to sit as an assessor in judging a few of these matters; it should go a long way toward cooling his enthusiasm for the promotion he thinks he wants.

Now, on a variant of this theme, I looked for the posting "last week" that Fr. Hart mentioned he had made but was unsuccessful in finding it. Thus I have no idea who the prominent Continuing Church figure may be to whom he was referring and, thus too, the following comments are purely general and theoretical, not specific to any particular case.

From time to time I hear it said that the Church should not accept as postulants for the clergy men who have had prior natural and civil marriages that have been adjudged not to have risen to the level of sacramental marriages and who have, on that basis, married (in the sacramental sense, for the first time). Sometimes this position is so framed as to say that while such repeated natural and civil (but not sacramental) marriages may be acceptable among the lower clergy, they should be disqualifying for the episcopate.

When I ask how this position squares with Article XXXII, which implies that the marriages of the clergy are to follow precisely the same principles as do the marriages of the laity, or with the doctrine that there is but one Sacrament of Order which is administered in three grades, or with St. Paul's lists of qualifications for the clergy in which it is clear that the requirements for a deacon are identical to those for a bishop.

At this point, the response is usually that it is somehow "unseemly" for a bishop, who has been a beneficiary of an investigation into the validity vel non of a prior natural and civil marriage, himself to judge such situations among his own flock.

That always makes me wonder how well it really sits with our laity, to be told that it is "O.K." for them to marry in the Church if a prior union was adjudged not to be a Sacrament but that the same process is "not good enough" for a bishop or, according to some, for another clergyman.

We have enough pastoral problems with explaining to our people what the Church really teaches about marriage and how it comes about that the Church, as the administrator and judge of the Sacramental system, is empowered to inquire into Sacraments to see if they were properly confected. We really do not need to add to those problems by telling some prominent layman that while it was acceptable for his daughter or favorite niece to "remarry" in the Church, and he really shouldn't worry about the propriety of that marriage, nevertheless he can't nominate Fr. Whomever to be a bishop because Fr. W. "remarried" in just the same way that layman's young relative did....

Then, of course, the "fitness to judge" argument can itself be turned around to work the other way. If a bishop has never been married, or has been so blessed as to have remained married to his original partner, can the people of our fractured society really be sure he will properly understand and empathize with all that they go through when, tragically, a marriage fails?

On the whole, then, it seems to me to be much the best simply to accept that when the properly-constituted authorities of the Church have rendered a decision in a particular case -- a case the details of which should always be held in confidence, and thus be unknown to outside observers -- the only proper response is for the rest of us to accept that and treat it as a non-issue in all areas of life, the life of the Church as well as the lives of the parties to that specific case.

John A. Hollister+

poetreader said...

just a couple more thoughts:

1. Annulment is all too often seen as a way out of a bad marriage. While I most certainly am not qualified to judge any particular case, and point-blank refuse to do so, I am quite certain that many 'annulments' have been granted, not because a marriage was necessarily invalid, but because the parties wanted to marry someone else. On the contrary, it is an extremely serious decision, and one that should be cery rare indeed. What one is doing is declaring that something that had been blessed as sacramental, is now being declared to have been an illicit and therefore sinful arrangement from the very beginning. No one should want that. To treat such a judgment with joy seems to me to have a potential for sacrilege. I want to speak very carefully to avoid making a judgement in any particular case. As I said, I can't. But I am as certain as I can be that this kind of abuse does occur and may be common.

2. Fr. Hart, I was not presenting a law about clergy remarriage, but raising what seems to me a rather powerful question. The issue is not whether a cleric whose marriage is annulled can remarry. In our discipline a priest can marry after ordination. If nullity is declared, he certainly can. However the question remains, should he? If he be serious about his pastoral ministry, his FIRST question must be as to what message he is presenting to those to whom he ministers, this entirely preempts any question whatever as to what it would do for him and the way he feels. I'm afraid that, in this society of impermanent marriages, his remarriage would be seen as an endorsement of divorce and remarriage, and no ammount of explaining is going to do away with that impression. That is why I suggest that, out of pastoral concerns, the priest with an annulled marriage, should he decide to remarry perhaps should resign his ministry. That used to be what many Episcopal bishops asked of their clergy. I know of at least one case in the early sixties where an otherwise liberal diocese did make that "request" of a priest.

This is not an issue on which I have answers, but I do have a lot of very serious questions.

ed

Fr. Robert Hart said...

DomWalk wrote:
The "fornication" in question I have seen held to refer to prior or during the betrothal period, so it's not adultery. So, this is limited in scope, per this interpretation. It's specifically not adultery.

What I was saying is that the fornication of which our Lord spoke has been understood to mean (in the West) the actual marriage itself, when it was not valid. A perfect example, in those days, was the scandal of Herod and Herodius. To have put her away (as John the Baptist rightly called for) would be a morally right "divorce."

Other than this case, where is divorce permitted in the NT? (Sorry if I seem being obtuse or pedantic, I just want to make sure we're on the same page).

I Cor. 7:15 " But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases: but God hath called us to peace."
I believe that this verse can be applied to all cases of abandonment, for, as I said, in the eyes of the Church abandonment is a form of adultery. And, someone who commits this sin is choosing to live in sin, and should be regarded as an unbeliever.

My broader question remains, where is *re-marriage*, especially for presbyters, supported in scripture?

Remarriage is never supported at all for anybody at all. We base the whole concept of an invalid marriage on Matt. 5:32 (that two people were in something called a marriage by the state, but that has in fact not been a valid marriage, and has been itself the fornication that the Lord spoke of). A decree of nullity makes a person free to marry because he has no living spouse in the eyes of God and of the Church(I am using "he" in the classical "inclusive" sense. So, it applies as well to "she.")

Certain Western traditions may support this thing called anullment. Where, other than possibly Matthew above, is it supported in scripture?

Only the freedom spoken of in the above quotation of Saint Paul.

Fr. Robert Hart said...

I wrote:
Remarriage is never supported at all for anybody at all.

i.e. if the "former" spouse is still alive.

Sandra McColl said...

Fr Hart: Oops, my memory is scrambled, is it not? I became confused between the words of the BCP marriage service, according to which God instituted matrimony 'in the time of man's innocency', and Genesis 2.24: 'Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh,' which appears to me to be describing what God instituted in man's innocency.

And I certainly wasn't intending to endorse 'temporary marriages'. Joining yourself to a harlot, however, is not a light matter. It is an act at one end of the continuum which has adultery at the one end and properly confected sacramental matrimony at the other. It involves a natural act of supernatural significance, which by its intimate nature creates a relationship and imposes obligations--or is mocked and debased when it does not do so. Somewhere along that continuum are marriages where the intention might have been a little dubious, or where one or other of the parties was not baptised (thank you, Canon Hollister, for your explanation), but where, over time, the obligations have increased and been accepted. Does the absence of sacramental efficacy mean that these are not to be considered at least prima facie binding?

Given the rate of divorce, and on its back, annulment in much of the western world, do we conclude that the present crop of marriages contains a higher proportion of nullities than marriages in previous generations, or do we conclude that in previous generations there were a lot of null marriages that didn't break down?

If nullity alone suffices to permit a person formerly married, but not sacramentally, to marry in church, then a hypothetical man who married at 25 with the intention of trading in his wife on a pretty young thing when she was no longer a pretty young thing would have a defective intention that would leave him free to marry a pretty and perhaps pregnant young thing at 45. Now, if that were to happen, I would find it a scandal. Perhaps it ought to be none of my business, and I should therefore not know whose defective intention caused the nullity in the first place, but there would still be an appearance of it being o.k. to desert the wife of your youth (even if she be a wife at law only) for a younger woman and get the Church's blessing on it.

I note that Ed remarks that annulments are often granted when one party wishes to marry someone else. I think that, if the Anglican Continuum is going to continue with the grant of annulments, which I consider necessary, people should be encouraged to seek them at the point of initiation of divorce proceedings, and not when they suddenly decide that they want to spend the rest of their lives with someone new. It might be pastorally impossible raising this issue with people who might be unwillingly going through the divorce process, but it would leave honest people open to make decisions about whether they should be leading a celibate life before someone else has become involved. And I also think that in cases where fault in intention or subsequent action clearly lies with one party, that it should be appropriate, for the avoidance of scandal, to say 'we've given your former spouse an annulment, which means you have one, too, but you're going to have to demonstrate a massive change of heart before we'd ever think of letting you marry in church'.

Of course, I might be talking a whole lot of ignorant, judgemental and presumptuous twaddle that I shouldn't even be thinking, but the fact that I am saying it, and that other people are articulating their own difficulties with the subject matter in this combox, is a sign that an 'annulment culture' is not native to Anglicans who got their Anglicanism before the Continuum began, or before they joined it, and that we are all truly concerned at the rate of marriage failure which occurs in contemporary society.

Fr. Robert Hart said...

First of all, we cannot accept a full blown Roman Catholic view from the late centuries of the Middle Ages on. Let us go back to the Bible and early church history.

St. Paul did not consider the marriages between believers and pagans to be invalid. Unless the unbeliever departs, that is abandons the marriage, the Christian is supposed to be a faithful spouse. And, in early church history are several cases such as the Christian mother of St. Augustine, and St. Helena, the Christian mother of Constantine, and the young Christian who was made a queen by marriage to a pagan Angle (Anglo-Saxon) king, and for whom a church was constructed where she could pray in peace (St. Bede records the story). No one has ever suggested that their marriages were fornication due to a lack of sacramental intention on the part of their pagan husbands.

On the other hand, we have St. Margaret of Antioch martyred for refusing to marry a pagan. Nonetheless, the Church has honored those who were faithful even in mixed marriages. Therefore, we must ask this question: just how much is truly necessary for a correct Intention on the part of the two people entering into marriage?

People who make a vow to live in fidelity to each other for life have entered into a marriage with sufficient intention for it to be sacramental. Unlike the Roman Catholics, we cannot make a simplistic law about civil ceremonies, and other non-Church enviornments (such as synagogues). No doubt, St. Paul's converts included many couples that had been married in pagan temples, and the earliest Christian couples were married according to the Law of Moses and of Israel. What then do we conclude? Back to I Cor. 7, where the presence of Christian faith on the part of just one spouse sanctifies the union, and sanctifies the children.

The exception, that is the freedom, that St. Paul gives to the abandoned Christian spouse seems to be based on the fact that the unbeliever demonstrated, as time went on, that there was no intention to be faithful for life.

As for the other matter raised by Sandra, no bishop should ever grant an annulment for the "guilty party." If a man married with the intention of "putting away the wife of his youth," he should have no annulment. Annulments are for those who had been foolish, or who had been wronged. They are not to be part of someone's scheme, and cannot be granted to fulfill a scheme.

poetreader said...

Do unspoken reservations invalidate an openly spoken vow? I don't see how that could be. What one vows one has vowed. Fingers crossed behind one's back say nothing about what one has actually done. Any other standard would leave every marriage and every vow of any other sort in doubt as to whether it had ever had effect. Even if the marriage in such a case be declared not to have been valid, the man who openly and willingly took that vow in order to deceive is bound to honor that vow for the rest of his life. The innocent party, however, having taken that vow under the constraint produced by dishonesty, and therefore not openly and willingly, is in another situation altogether,

ed

Sandra McColl said...

I am a slow learner, but I think I'm beginning to catch on. Fr Hart, are you saying that an annulment, being a declaration, is like a declaration in equity, or any other equitable remedy, and only granted to those who seek it with clean hands? By extension, does that mean that the benefit of a declaration of nullity can be denied to a party who does not have clean hands?

If that's right, then, finally, penny's dropped and I thank you all for your patience.

Next problem: I think this needs explaining to the faithful. People don't generally understand. Some think that an annulment is merely an ecclesiastical ratification of a civil divorce, or they hear urban myth horror stories of RC marriage tribunals.

Fr. Robert Hart said...

I do not suppose anyone has genuinely clean hands. But, no one should get his way who planned to leave a marriage, and use his own lack of intention as a loophole (or her own, not to be PC, but to make it clear that both sexes can be culpable). As for the second part, it is very important for people to know that an annulment is not simply ratification of a civil divorce in any way. It cannot be granted without a real basis. Also, I hope that I have made it clear that this really is a theological matter, grounded ultimately in scripture.

John A. Hollister said...

Mr. Pacht wrote, regarding declarations of nullity of marriage:

"What one is doing is declaring that something that had been blessed as sacramental, is now being declared to have been an illicit and therefore sinful arrangement from the very beginning."

While I heartily agree with his conclusiokn that "No one should want that", I think the way he stated his lead-in was a bit too harsh. An application for a declaration of nullity is not a claim that a particular union was illicit in any fashion.

You must remember that marriages exist, first, as creatures of natural law: men and women started pairing up long before there was any organized civil society and did so for very obvious, necessary reasons that are rooted in the nature of the human being.

As people began to organize themselves into social groups larger than an individual family, i.e., as civil society began to emerge, one of the very first issues that society had to develope rules for was the institution of marriage. Thus the concept of civil marriage was superimposed on top of natural marriage.

Thus matters stood until Our Lord's Incarnation and His subsequent taking up of His ministry. In the course of that, He took many existing aspects of daily life and gave them a new and spiritual significance. Thus the Jewish mikva became Baptism, the chabura meal became the Eucharist, marriage became more than a mere state of life (as at natural law) or contract (as at civil law) and was, when it most fully attained its proper destiny, a sacrament.

For someone to have entered into a valid marriage at the natural law and at the civil law is certainly not illicit and therefore the failure of that relationship to rise to the additional level of a Sacrament may be regrettable, and may be very much less than we had hoped for it, but, without more, it is scarcely a sin. Of course, when the failure of sacramental intention arises out of fraud or something similar, it would also be a sin, but that is not the most frequent source of failure.

As just one example plucked at random out of many possible ones, it is precisely the prevalence of divorce in our society that engenders sacramental defects in many marriages attempted by the children of those failed unions. No matter how common or "accepted" divorce may be, the stresses and strains that lead up to it still, even in our time, cause many young people to seek a quick way out of the unhappy family home. Quickly marrying a high school sweetheart sometimes looks like that path to rescue from the miserable family home.

Our only answer to this is rigorous preparation before we agree to marry a couple in the Church. Even that, however, is not a sovereign specific because in these "rush to the altar" cases, if we bar the aisle to the altar, the young couple just diverts into a "rush to the judge's bench".

There are other, somewhat similar, factors as well. Just now our military forces are heavily engaged overseas, with young men and women being shipped out, often upon very short notice. For the next thirty years or so, we will have coming into our congregations men and women whose first marriages were rushed into as one partner or the other departed on active duty. We saw this over the years after World War II, again after Korea, and again after Vietnam. In very many of these cases, the problem marriage was entered into, failed, and ended in divorce long before the person concerned ever joined our Church, so we are presented with a fait accompli with which we must now deal but to prevent which we were helpless.

I don't think it can be said better than Fr. Hart said it: "A decree of nullity makes a person free to marry because he has no living spouse in the eyes of God and of the Church (I am using 'he' in the classical 'inclusive' sense. So, it applies as well to 'she.')"

Ms. McColl asked, very sensibly referred to "marriages where the intention might have been a little dubious, or where one or other of the parties was not baptised ... but where, over time, the obligations have increased and been accepted. Does the absence of sacramental efficacy mean that these are not to be considered at least prima facie binding?"

First, even where at the time a purported marriage was confected there was some lack that prevented it from arising to the demanding level of a Sacrament, it is also quite possible that subsequently, after the impediment was removed or the parties' intentions improved, the initially non-sacramental marriage was ratified in a way that satisfied the requirements for a sacrament. From the time of such ratification, the marriage is a Sacrament just as much as though it had been one ab initio.

Second, indeed it is always presumed that a particular union was a valid marriage on all three levels until some definite defect (such as vice of intention) is shown to have been present. And, as I think it was also Ms. McColl who noted, while that defect must have been present at the time the marriage was entered into, often the only evidence of that we have is in the "reflections" seen in later events. That is part of what makes handling these cases conscientiously such a hard struggle for those to whom they are entrusted.

She also asked, "Given the rate of divorce, and on its back, annulment in much of the western world, do we conclude that the present crop of marriages contains a higher proportion of nullities than marriages in previous generations, or do we conclude that in previous generations there were a lot of null marriages that didn't break down?"

A very good question. I don't think any clergyman, or indeed any thinking adult, would deny that our society inclucates an ethos of disposible partnerships. So it is entirely possible that there are in fact a higher proportion of natural and civil marriages that do not qualify as Sacraments than would have been true in, say the Sixteenth Century.

Of course, it is also true that on the average people live much longer today, so just as they survive to acquire and die of diseases that used to be very rare, so now they live past the point where their great-great-grandparents might have begun feeling intolerable strains in their relationships had the women not died in their thirties, worn out by multiple childbirths.

But I think the cultural explanation is quite enough to be going on with for now.

As to Ms. McColl's hypothetical young man who married at 25, planning later to trade his first wife in on a younger "trophy wife", he would have problems more serious than merely the non-sacramentality of his first marriage. By promising to love, cherish, and protect his first wife, so long as the both of them shall live, while actually intending no such thing, he would be sinning grievously and we may be confident that a Judge will deal with that, even if it be not the Judge of the local Domestic Relations Court.

Mr. Pacht asked, "Do unspoken reservations invalidate an openly spoken vow? I don't see how that could be. What one vows one has vowed. Fingers crossed behind one's back say nothing about what one has actually done. Any other standard would leave every marriage and every vow of any other sort in doubt as to whether it had ever had effect."

He has put his finger on the reason that every marriage is initially presumed to have been valid: if the outward, objective manifestations suggest the expected intention of life-long fidelity, support, companionship, etc., then we give credence to those appearances until we have sound reason to judge otherwise.

But what if we later discover that on the night before the wedding, the groom had a fling with the "maid" of honor, and then after the wedding slipped into a pattern of affairs, using prostitutes, etc. From his pattern of behavior, would we be justified in concluding that he never really formed the intention of cleaving only unto his wife?

(I didn't make up that "hypothetical", by the way.)

And while I agree that "the man who openly and willingly took that vow in order to deceive is bound to honor that vow for the rest of his life", in practice, he won't. If our discovery of how he treated his wife during their marriage makes it too uncomfortable for him to remain a member of our congregation, he will simply transfer to some other, socially-acceptable venue, such as the current Episcopal Church or one of the "mainstream" Protestant congregations, where his history will be unknown.

But it is precisely the pastoral result -- assurance we can give the innocent spouse that she (using Mr. Pacht's example) can properly remarry in the Church -- that is the point of the entire canonical process.

And Ms. McColl is entirely correct: we urgently need to teach our people the Church's theology and practice in this area. One of the beauties of the one-year lectionary is that suitable opportunities keep recurring, as when the pericopes touch on the wedding at Cana, the Syro-Phoenician woman at the well of Sychar, the Woman taken in adultery, or perhaps the Old Testament accounts of Sarah and Hagar or of Tamar.

This is also something that needs to be included in inquirers' classes, confirmation instruction, and, of course, in pre-marriage instruction.

And if anyone would like a flavor of what these marriage cases in the Church are really like, email me off-list at jahollister@yahoo.com and I'll be glad to send you a blank Petition form and its instructions. I'd rather fill out my income tax return than one of those.

John A. Hollister+

Fr Samuel Edwards said...

Thank you, Canon Hollister, for that excellent, concisely comprehensive post. If instruction is a major component in the recovery of a proper understanding of Christian marriage - and it is - this kind of teaching is deserving of emulation.

Fr Samuel Edwards

Fr Matthew Kirby said...

Yes, thank you, Canon Hollister.

Fr. Robert Hart said...

Fr. Hollister wrote:
First, even where at the time a purported marriage was confected there was some lack that prevented it from arising to the demanding level of a Sacrament, it is also quite possible that subsequently, after the impediment was removed or the parties' intentions improved, the initially non-sacramental marriage was ratified in a way that satisfied the requirements for a sacrament. From the time of such ratification, the marriage is a Sacrament just as much as though it had been one ab initio.

This is precisely the conclusion we must draw from scripture itself, namely that same chapter, I Corinthians 7, I have brought up before. In the historical context, the Apostle was writing to converts, many of whom would have married as pagans.
We do not know if these converted couples underwent any sort of Christian ceremony in those earliest days (though one can hardly imagine that converted couples did not receive some sort of blessing, simply because that idea would have come naturally to the Apostles, due to their Jewish background), but we do know that even where only one spouse was a Christian, this somehow still rose to a level that St. Paul describes thus: "For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy." Does this not indicate that it is more than civil, legal and cultural? This suggests that it is sacramental, even with the defect of an unbelieving spouse.

This is part of the reason why we cannot treat the subject in the simplistic and legalistic was our Roman Catholic brethren do.

"It was a civil ceremony"-but St. Paul dealt with weddings that had been pagan. "It was not in church"- but neither were these. We must ask what exactly is the sacramental Intention for marriage? The answer is, life long fidelity and willingness to have children (when possible). What do we say when this was done in a civil ceremony?

The couple should have married in church, but they lacked understanding; or, the couple were not Christians at the time, and later converted. We must take it that upon conversion their marriage attained sacramental status (of course they ought to have the union blessed by the Church).

I see no other logical conclusion from St. Paul's words. What may have begun as less than a sacrament attains to a sacramental level when, as Canon Hollister said, the impediment is removed.

Fr Samuel Edwards said...

Fr Hart writes,

< We do not know if these converted couples underwent any sort of Christian ceremony in those earliest days (though one can hardly imagine that converted couples did not receive some sort of blessing, simply because that idea would have come naturally to the Apostles, due to their Jewish background), but we do know that even where only one spouse was a Christian, this somehow still rose to a level that St. Paul describes thus: "For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband: else were your children unclean; but now are they holy." Does this not indicate that it is more than civil, legal and cultural? This suggests that it is sacramental, even with the defect of an unbelieving spouse. >

This reminds me of how, according the late Fr John Meyendorff, the Eastern Orthodox Churches approach the matter of the sacramental status of the pre-existing marriages of converts: If I remember correctly, they do not go through a ceremony of blessing as such - they simply receive communion as a couple at the Divine Liturgy. Through this, they enter into active participation in the nuptial banquet of heaven, of which their marriage was a foreshadowing and a foretaste. Contact with the Presence brings fulfillment to that which is naturally good, on the principle enunciated by another modern worthy of the Eastern Church: Alexander Schmemann wrote somewhere that when we bless water, bread, wine, God does not so much make them more than what they are, but makes them REAL water, bread, and wine.

Fr Samuel Edwards

poetreader said...

I join in thanking Canon Hollister for a well-presented statement.

You managed to elucidate the prime reason for my problem with all the talk of annulments better than I could. The real problem is that the way these things are usually discussed gives entirely false impressions and (inadvertently I hope) seems to endorse the concept of a difficult marriage as something to be got out of. If the real nature of marriage is thoroughly taught, and thoroughly proclaimed in all our dealings with matrimony, most of my questions vanish. If not, we give the appearance of joining in with this society's infatuation with serial polygamy. Our steadfast witness is more needed than ever.

Thank you for the encouragement toward good teaching.

ed

John A. Hollister said...

Fr. Hart raised the very interesting issue of St. Paul's admonition to Christian converts that they should not desert their pagan spouses. Other than the hope that constant contact with the Christian partner might bring the non-Christian one to the Faith (think of the Christian St. Monica and her pagan son, later St. Augustine), I have never read any explanation of this command.

It seems clear that the marriage of a Christian and a non-Christian cannot be a Sacrament, because in matrimony both spouses are the subjects of the Sacrament and in order for that to happen, both must be baptized. However, in other contexts, we make a distinction between Sacraments, which convey Grace objectively ("ex opere operato" or "by the thing working itself") and "sacramentals", which convey Grace "ex opere operantis ecclesiae" or "by the intercession of the Church". (This is also sometimes explained as "by the doing of the thing".)

Usually we think of aids to devotion when we think of "sacramentals", such as holy water, blessings, the stations of the cross, church ornaments, church music, rosaries, pilgrimages, vestments, etc., etc. However, and I put this suggestion forward very diffidently, for the consideration of the learned brethren, may it not be that the natural and civil marriage that St. Paul was enjoining the Christian spouse to maintain was likewise a source of Grace, not because it was a Sacrament, but because it was a sacramental?

(I realize that by proposing that for consideration, I am thereby injecting some ambiguity into the terminology "sacramental marriage".)

And were the non-Christian spouse eventually to be converted and baptized, then the impediment would be removed and the union would thereby become a Sacrament.

As to the form in which that Sacrament is confected, Fr. Hart wrote, I think entirely correctly:

" We do not know if these converted couples underwent any sort of Christian ceremony in those earliest days (though one can hardly imagine that converted couples did not receive some sort of blessing, simply because that idea would have come naturally to the Apostles, due to their Jewish background)".

What we do know is that down to the Renaissance, in Britain and in Europe no particular ceremony was considered necessary, only the formation of the intention to be married, followed by the "matter" of the Sacrament, which in fact was and is the couple's engaging in marital relations, not as is sometimes supposed the exchange of a ring or rings.

Clearly it was easiest and best if this intention was expressed formally before witnesses, but not uncommonly the couple simply came to the local church, told the priest they had been married, and asked his and the Church's blessing. And at that point their marriage would be entered into the parish register, which was the only form of vital statistics record in existence at the time.

So it is that post-marriage blessing that is the Church's original "marriage service" and while it still survives in the 1662 C of E BCP, and in the Ang. Ch. of Canada's 1962 BCP, it was most unfortunately omitted from the American BCP. (Which is one reason I always use the Canadian service for weddings.)

This is "conubium per verbi de praesento et cum copulo" ("marriage by words of present intention accompanied by marital relations"). It is, rather oddly, the origin of the legal fiction "Common Law marriage". The Common Law had no rule regarding marriage, because marriage questions were always certified to the appropriate Consistory Court but the US Supreme Court couldn't admit that so it pretended that the Canon Law rule was in fact a Common Law rule.

We need to include this bit of arcana in our teaching of our youth because it remains the rule for Anglicans although a couple of centuries ago our Roman brethren attempted to declare non-sacramental (that ambiguity again) -- declare not to be Sacraments -- marriages of Roman Catholics that are not entered into before a Roman priest or with an indult from a Roman bishop.

Thus if a young couple decides that they are engaged, and thereafter presumes on the privileges of marriage, they are in fact married under a slight variant of the rule stated above, that is "conubium per verbi de futuro et cum copulo" ("marriage by words of future intention with present marital relations").

This was the difficulty in which William Shakespeare found himself when he was betrothed to ("words of future intention") and, apparently, physically involved with, two young women at the same time. One assumes Anne Hathaway's brothers were larger than those of the other candidate, because she was the one with whom he received the Church's blessing "at the church door".

The lack of considered judgement involved in that is shown by the fact that he also spent much of his adult life living many miles away from her. This is just one of the problems against which we need to warn our youth.

But they certainly also need to be warned that careless adolescent involvements may render them, in the eyes of God and of His Church, married, and so ineligible to enter into later and perhaps wiser marriages.

John A. Hollister+

Sandra McColl said...

Canon Hollister, Fr Hart: many thanks. I hope that as the discussion progressed my questions became more intelligent.

D Bunker said...

Thank you for your discussion of this, Canon Hollister. It underscores several of the differences between the Anglican and Roman views of the annulment process. My brother married a woman who converted from the Roman church to the Episcopal church in the TEC. They wound up divorcing and, of course, when she went back to the Roman church she was given an annulment which must have been solely based upon having married in an "ecclesial body" outside the Roman church as the issues leading to the divorce would not have and did not stand as valid for annulment under scrutinity by the bishop of the Episcopal diocese. Hence, she may be legally married under the eyes of the Roman church but she is a bigamist in the eyes of the Anglican jurisdictions. One wonders how this will be interpreted in the next life? How is this to be reckoned in light of Matthew 19?

poetreader said...

Canon Hollister,
once again, thank you for an illuminating commentary. I've learned much from what you've said on th9is issue.

I have read a number of discussions from Protestant sources on the effect of a Christian spouse upon an unbelieving one, and, in fact, as a Pentecostal minister, preached on the subject several times. I just looke though my personal library and cannot find the specific sources.

To put the usual arguments roughly, with little nuance,though they do not use the term 'sacrament' (and would not), the prevailing concept is surprisingly sacramental: that the believing partner, by faith, brings something supernatural into the marriage bond, producing a relationship which puts the unbeliever into a special relationship with God, which, while not salvific, is distinctly covenantal. God here seems to be committing Himself to drawing the unbelieving spouse with especial strength, and to imparting that undefined grace which inheres in children of a sacramental marriage.

ed

Fr. Robert Hart said...

Sandra McColl wrote
I hope that as the discussion progressed my questions became more intelligent.

But all of your questions were intelligent.

Canon Hollister and I have both stated, in different ways, that as Anglicans we cannot simply adopt the modern Roman Catholic paradigm for our own (which too many Anglicans do too readily, and not only on this issue). For example, I mentioned the couple that married on a beach in a civil ceremony. To this a normal (modern) Roman Catholic approach would be to base annulment on defect of Form; but we have no specific Form for marriage that has always been required in the Church, such as we do have for Baptism, and for the Eucharist. The other five sacraments have always allowed for the Church to come up with Form that states Intention, and this would include marriage. And so, for that annulment, the issue was that the wife had no Intention to be married, and this was demonstrated by her subsequent abandonment of the husband.

This is exactly how we would understand the abandonment by the unbelieving spouse that frees the "brother or sister... in such cases" as taught by St. Paul.

The simplistic approach, however, can create its own abuses. A man wants to leave his wife, and for a technical reason (like the one Henry VIII attempted to pull out of scripture), gets his way. A Protestant marries a Roman Catholic in a civil ceremony, then converts to her Church, divorces to leave her for a younger woman, and uses his civil ceremony to get his way. All very neat and tidy. But, such a man has no right to an annulment at all. He is simply an adulterer (I am not saying that a bishop of the RC Church would grant his request, but he certainly could). Annulment must not be turned into a legalistsic convenience; a simplistic approach makes provision to corrupt the whole thing so that it loses integrity.

John A. Hollister said...

I would pick a small nit. In the midst of an otherwise excellent argument, Fr. Hart wrote:

"A man wants to leave his wife, and for a technical reason (like the one Henry VIII attempted to pull out of scripture), gets his way."

Now the "technical reason" upon which Henry relied was that Katherine of Aragon had both been betrothed and gone through a ceremony of marriage with his older brother Arthur ("words of intention"). Further, Henry averred that Katherine and Arthur's marriage had been consummated, which, if true, completed the confection of the Sacrament and made Katherine and Henry "sister and brother" within the forbidden degrees of affinity.

To that point, Henry's argument was completely unexceptionable according to the theological understanding of the day; for example, the entire Faculty of Theology of the University of Paris agreed with it. Its efficacy merely turned upon a factual assertion about what went on in Katherine and Arthur's bedroom which was, in the nature of the case, somewhat hard to prove.

The place where Henry's otherwise quite usual action for a decree of nullity became unusually disruptive was the necessity to consider the dispensation from this impediment of affinity, to permit Katherine and Henry's marriage, which Henry's father, Henry VII, had been careful to obtain from the Pope of that day.

Henry Tudor the younger (i.e, VIII) argued that the dispensation was ineffective because no man, including no Pope, could dispense from the requirements of God's law. That was, in the context of the times and the thitherto widespread acceptance of the extreme Papal jurisdictional claims, revolutionary.

But that doesn't mean it was a mere "technicality". And it only began to occur to Henry after he noticed that he had no problem siring healthy children upon other women but that his children with Katherine, except for Mary, all were unhealthy and died either aborning or very young.

Again according to the usage of the times, Henry interpreted these misfortunes as God's punishment for some sin in his life, which set him off looking for where that sin might reside.

Not what we today would have conculded, but no "technicality" either. Nor was Henry's reasoning in this case vitiated by the happenstance that, in other areas of his life, he was very prone to confuse what he wanted with what had to be.

John A. Hollister+

Fr. Robert Hart said...

But the king's use of the same Torah that commanded a man to marry his brother's widow to raise up seed to his brother, was not solid ground.

John A. Hollister said...

As Father Hart knows, and as we see in Acts of the Apostles, with the advent of the New Covenant, the Church was required to consider and deal with the issue of which parts of the Old Covenant's "Law" thereafter remained binding on Christians.

The Church's decision, in what was really the first Oecumenical Council, was that the Moral Law remained binding upon Christians but the specifically Jewish Cultic "Law" did not. And, clearly, Levirate Marriage (a surviving brother's obligation to marry his deceased brother's childless widow as an "extra" wife), with its concerns for the maintenance of each Jewish tribe's inherited portion of the Promised Land (see, e.g., the story of Ruth and Boaz) was cultic and not moral.

This is further reinforced by the fact that, by Christ's time, Levirate Marriage had passed out of use, even among Jews. Thus this cultic practice had lapsed or, as the canon lawyers say today, "fallen into desuetude".

The Levitical prohibition against incest, however, upon which Henry relied, was and is part of the Moral Law and thus remained of obligation for Christians.

So Henry VII's pressure on Henry (later to be VIII) to marry Katherine of Aragon, the widow of his elder brother Arthur, remained a purely secular, political consideration, not a precept that survived from the Old Testament period.

John A. Hollister+