Continuing the translation from Josef Seifert's article in German, released under the Creative Common's License with Attribution CC BY 3.0). Complete translation on a single page: The Joy of Love – Joys, Anguish, and Hope – by Josef Seifert.
2.1.4 Are there divorced and remarried Catholics, who considered outwardly do not live in a sacramental marriage and have not received certification from an ecclesial court of the nullity of their marriage, and therefore cannot celebrate their marriage in the Church, but who have entered a marriage of conscience, which count be reckoned by the Church as the sacrament of marriage and justify their admission to the sacraments?
A fourth answer to the question, which "irregular couples" should be admitted to the sacraments, could be seen as compatible with the constant teaching of the Church and even with the truth of the first answer. It concerns couples who at least "outwardly considered" are in "irregular situations". AL 298 (as well as FC 84) refers to them:
"the case of 'those who have entered into a second union for the sake of the children's upbringing, and are sometimes subjectively certain in conscience that their previous and irreparably broken marriage had never been valid'" [FC, 84] (AL 298)
This fourth group of cases, in which the admission of such "couples in irregular situations" could seem to be a good, if dangerous thing, can be illustrated with three concrete examples, which are also cited in Amoris Laetitia.
1. The first example would be that of couples who are honestly (and in accordance with the truth) convinced that their first marriage was invalid, but who, on account of external circumstances, cannot celebrate a second church marriage, because they have no access to a church tribunal (or even to a Church). This inability to present their case to a church tribunal possibly is based on the fact that they live in a country in which the Church doesn't exist or is severely persecuted, or on an island, on which there is no Church or priests, etc.
The impossibility of having recourse to a church tribunal can also arise among the extremely poor, who cannot afford the costs of a long trip for a hearing before a church court or of a ecclesial annulment process, who however are honestly and for the strongest reasons convinced of the invalidity of their first marriage, after a sincere examination of conscience and, if possible, a conversation with a confessor. (Pope Francis has already to a large degree redressed this case of the poor, in proposing a gratuitous offer of ecclesial investigations of a suit claiming nullity.) This merciful law redresses the injustice that under certain circumstances, only those who could pay the considerable sums were able to obtain a certification of the nullity of their marriage. Despite the pope's generous support of such couples there can be cases in which a person is not in a position to convince the Church judges and therefore is dependent on the expensive services of a lawyer, since the Church cannot everywhere offer free attorney services, as in some dioceses. In such cases, when there is a large amount of objective evidence and a high degree of subjective certainty about the invalidity of the first marriage, it could seem justified to lay claim to the aforementioned exception from the sacramental discipline and, without a certification of nullity, to enter a "marriage of conscience." Such couples "in irregular situations," one could think, should be admitted to the sacraments.
Indeed one could argue that in such a case the Church could not only allow access to the sacraments, but could presume that despite the merely civil marriage, or marriage altogether outside the civil order that took place on an island, a valid and sacramental marriage has taken place between a baptized man and a baptized woman. Admittedly one could argue: in order that such an "irregular marriage" not be an act of disobedience against the Church, but a valid marriage according to canon law, one could change canon law and adapt it to these cases. Advocates of this four way of interpreting couples in "irregular situations", who, according to AL should be admitted to the sacraments, could perhaps argue that, in a certain sense, making such a change to canon law and so "canonizing" an "irregular marriage" according to canon law, would restore the original discipline of the sacrament of marriage in canon law, when the Church recognized a sacramental marriage that arose simply through the exchange of marital consent between a man and a woman. The many canonical rules for an (a) licit and (b) valid catholic marriage, as well as (c) the rules of the ecclesial process of annulment were added in the course of history to hinder abuses, but are not unchangeable. For, according to this view, if the Holy Father, for specific, very precisely described conditions, revised church law and understood a valid marriage only according to its unchangeable essence and freed it from its historic ballast, this would be a truly good contribution of the teaching office of Pope Francis, always on the supposition of clarity and precision of teaching and canon law. On this view, a similar value would be had by adaptions to canon law for the two following cases of couples in "irregular situations," to whom the Church could grant access to the sacraments.
2. The second case is that of persons who for objective reasons are convinced of the invalidity of their marriage, but who have no objective proofs of the truth of their statement regarding the grounds for the invalidity of marriage (e.g., the absolute "no!" of their partner to children before the moment of contracting marriage), and whom the church court does not believe. This mistrust of the ecclesial judges is possibly caused by a lack of credibility of the claimant in the eyes of the judge, or in his lack of eloquence, or in the fact that his partner lies and is a distinguished and emotional speaker, who convinces the court of her lie, or in a thousand other reasons. In this case it could seem good to allow a "marriage of conscience" and to think that admission of such couples to the sacraments would be no sin, although they could not publicly celebrate a church wedding. One could go further and say that such a union is a valid and sacramental marriage outside of the normal order of the visible Church.
3. The third second is that where a partner, likewise sincerely convinced of the invalidity of a marriage, waits for a long time for the decision of a church court, and despite the rule that a judgment of the first instance in an annulment process should be made within a year, this judgment does not come in 2, 5, or 10 years, or even only after 18 years (as happened to a famous comedian poet in the 19th century.) One could argue that in this case that it would be legitimate for a couple on the basis of the judgment of the conscience to have a civil divorce and enter a new marriage, indeed, that the Church could consider this marriage as a sacrament and admit the couple to the reception of the sacraments, even if their wedding only took place civilly, or in a situation apart from the civil order (e.g., on a remote island), but on the basis of a conscious and mutual marital consent. At the same time one could warn, that the Church should only consider such couples as sacramentally married and admit them to the sacraments, after it has changed canon law and adopted clear regulations (e.g., that such a marriage of conscience may only take place after a certain number of years without a decision of the Church court), on the basis of the conscience of the person who seeks the declaration of nullity. In this case the Church would recognize such a marriage as a possibly valid and sacramental marriage, and from that point in time, when it would recognize the marriage as such, would declare it as such. The church process of annulment would, consequently, have to be aborted at the time when such an "irregular" marriage was recognized. (For if, in such a case, the church process continued in parallel, a possible contradiction between the judgment of the church tribunal and the judgment of conscience would lead to further grave conflicts and aporias.) Could we therefore say, that in this and similar situations couples "in irregular situations" could return to the reception of the sacraments and enter into a "marriage of conscience" in good conscience? And that not only are they by reason of their subjective conscience are in a state of grace, but that their marriage is objectively a sacramental marriage? In this way it would be possible for divorced (without an ecclesial annulment) and remarried persons return to the sacraments. Does, we may ask, AL by this good and merciful innovation give many couples a genuine gift of mercy, and is it for us an occasion for joy?
This fourth answer to the question, who are those couples "in irregular situations," who could be admitted to the sacraments, does not, on first sight, contradict the first. One could think (as I did): to grant divorced and (without a church annulment) remarried persons of this fourth kind access to the sacraments would simply grant to the moral conscience of the individual in very clearly delineated cases the same right as that which normally only the Church court has: to declare a marriage as invalid. Thereby these couples would only be "seemingly irregular", but in reality "regular in an extraordinary mode," to put a name to it. Are there such "irregular regular couples"?
188.8.131.52 Admission to the sacraments of the fourth type of "couples in irregular situations" contradicts the clear teaching and dogma of the Church as well as the manifest reason grounds of this teaching
One could think (I myself thought it until recently), that none of these three cases of the fourth class falls under the strong reasons for which the cardinals cited, together with FC, think that the prohibition from admitting divorced and (without a church annulment) remarried persons to the sacrament is not a matter of a mutable positive law, or a merely pastoral decision, but of a church practice that is based in the Gospel itself. So, the admission of the aforesaid couples and the church recognition of their marriage seemed to me to be a merciful step and a legitimate simplification of the annulment process or an acceptable solution in the case of a negative judgment of the church court.
But despite these apparent beautiful and liberating aspects of AL, that open access to the sacraments to these or similar couples, there are serious objections that justify the conclusion, that the admission of these couples to the sacraments is not compatible with the teaching and unchangeable practice of the Church. Why?
1. The Council of Trent condemns the opinion that the conscience of an individual (the internal forum) could be judge over the invalidity of the first marriage, when it says, in session XXIV: "Whoever says, matters pertaining to marriage do not belong before church judges, let him be anathema."
2. This teaching was solemnly confirmed by many other popes, up through Benedict XVI.
3. Marriage is also on the natural level a public relation with an effect on the life of the family; it is, moreover, the foundation of society. Therefore there are no "merely private" or "merely internal" solutions for the question of the existence of a marriage. This applies all the more to the sacrament of marriage.
4. Marriage between two baptized persons is a sacrament. The reception of a sacrament is a religious, and never merely a private act. It is therefore the Church's task to judge the validity of the sacraments, according to objective criteria.
5. Moreover, leaving this question to the individual's conscience can easily lead to injustices. Consider a man who is tempted to commit adultery. He could easily, in a personal investigation, which is possibly based on an erring conscience, decided that his first marriage was invalid and that he is free to divorce and to marry a second woman.
6. Also individual priests cannot shed light on the truth of a marriage without carrying out a conscientious examination, for which a certain procedure is necessary. It is exactly this that is the task of a church court, whose function, therefore, is irreplaceable.
7. Moreover, the wife and the family have rights of their own. Therefore, the consequences of unjustified judgments about whether there is a valid marriage damage the integrity of the sacrament and easily lead to injustice to the wife, the children, and the entire community.
8. Finally, leaving the decision about the invalidity of marriage to the conscience of an individual partner in marriage or to an individual priest would bring about great chaos. If a marital partner or a priest rejects the invalidity of the marriage, while the other marital partner or another priest accepts it, or if a couple, that is not married, acts as though it were married, the life of the Church would be damaged through manifold confusion and scandal. (Footnote 31: All these teachings of the last popes are rejected pointblank by Cardinal Schönborn in his interpretation of AL: cf. Schönborn 2016 – July 6, 2016.)
If it thus clearly seems that also the described cases of "marriages of conscience" cannot be allowed or recognized by the Church as sacramental marriages, without contradicting the express teachings of the Church, some of which are even solemnly declared through anathemas of anyone who denies them, and if leaving it to the individual conscience to declare a marriage invalid is inadmissible, the only answer to our question which "irregular couples" can be admitted to the sacraments is the first one: none. Moreover, if this follows not from changeable decisions of the Church but from the Gospel and unchangeable Church teaching, not even a Pope can deviate from this doctrine and practice of the Church. Therefore, one ought to plead with the Pope that he retracts any statement that all or some couples in such "irregular situations" are to be admitted to the sacraments.