Harmonizing Catholic and Orthodox Approaches to Divorce and Remarriage
by Benjamin Martin
Another such issue concerns the sacrament of marriage. Eastern and Western understandings of marriage differ in several respects. The East considers the priest or bishop the minister of the sacrament, while the West considers as ministers the spouses themselves, for which reason the Latin Rite allows a deacon or even a lay delegate to witness marriage on behalf of the Church. In the understanding of the West, the marriage bond persists until the death of a spouse, after which the other spouse may marry again. In contrast, the East does not consider any subsequent unions sacramental. These differences are likely mutually tolerable and therefore no cause for division or tension between East and West.
Tension between Catholics and Orthodox does arise, however, in relation to how they respond to laypeople whose marriages have broken down and who have entered or desire to enter new unions. For Catholics, a subsequent marriage is possible only if the previous union is shown to be invalid. This requires a demanding canonical process that culminates in a declaration of nullity. In contrast, the Orthodox employ a less demanding canonical process to determine whether the relationship between spouses can be restored. If not, one or both spouses may be issued a “certificate of free state,” which allows one or the other to enter a second or third non-sacramental union. Upon deciding to enter a subsequent union, he or she may be asked to observe a period of penance. These pastoral approaches represent, respectively, stricter and looser interpretations of the words of Christ in Matthew 5:32 and 9:19: “Everyone who divorces his wife, except on the ground of porneia, makes her an adulteress; and whoever marries a divorced woman commits adultery.”
From a Catholic perspective, the Orthodox practice of permitting second or third unions, while the spouse of the first marriage remains alive, contradicts the indissolubility of Christian marriage. Put bluntly, such unions are adulterous. On the one hand, the Catholic Church has never considered this Orthodox practice church-dividing. On the other hand, the Catholic Church has not acknowledged it as permissible for Orthodox faithful who have canonically entered and remain in such subsequent unions to receive the Eucharist. In comparison with the more notorious and profound disagreements between Catholics and Orthodox, controversy over subsequent unions may seem minor, but it must generate tension on the ground where Catholics and Orthodox live side-by-side or where Orthodox and Byzantine Catholic jurisdictions anticipate integration.
The Catholic Church has little interest in asking the Orthodox to change their practices. Therefore, Catholics must ask whether and how they might understand the Orthodox practice of permitting subsequent unions as compatible with reception of the Eucharist. Thankfully, the Catholic Church has given some attention to similar issues in recent years.
In the highly controversial apostolic exhortation of 2016 Amoris Laetitia, Pope Francis presented a vision of pastoral care for Catholics who live in canonically irregular unions. The topic requires its own vision of pastoral care because such situations are not only sinful but also publicly scandalous. Both aspects create barriers to participation in the sacraments.
Traditionally, the Catholic Church has encouraged Catholics in these situations to regularize their unions through the sacrament of marriage or, if one or both were purportedly married previously, through the annulment process followed by sacramental marriage. In his apostolic exhortation of 1981 Familiaris Consortio, Pope John Paul II added to this tradition: Couples who cannot regularize their union through annulment and marriage but who also, for serious reasons, such as the raising of children, cannot separate must resolve to live in continence (§84). Because they persist in a publicly scandalous state, they cannot receive the Eucharist publicly, but if resolving to live in continence they may receive the sacraments privately or otherwise remoto scandalo (Cf. the 2000 Declaration of the Pontifical Council for Legislative Texts “Concerning the Admission to Holy Communion of Faithful who are Divorced and Remarried”). By their resolution to live in continence, these couples address the subjective dimension of the situation – they no longer intend sin – but not the objective dimension – their public situation still renders them unworthy to receive the Eucharist publicly.
In Amoris Laetitia, Pope Francis sought to develop this tradition further. In a couple footnotes (336, 351), he suggested that even couples who persist in adulterous relations may be allowed to receive the sacraments. Many Catholics questioned how this could be, since someone who intends to persist in adulterous relations can neither receive sacramental absolution nor worthily receive the Eucharist, publicly or privately. However, in relation to this specific possibility, Pope Francis must focus on cases of a specific kind: cases in which someone feels obligated in conscience to persist in the adulterous relations, in which someone judges that by doing so he chooses the least evil in what subjectively appears to him to be a forced choice among evil acts. Pope Francis describes this condition as “feeling in conscience that one would [otherwise] fall into new [and worse] sins” (§298). Because of the obligation in conscience, such a person does not thereby intend to sin and may yet receive the sacraments.
To integrate this consideration within a strategy of pastoral care, Pope Francis specifies that such a person must engage with his confessor in a process of discernment and that the confessor must judge that the penitent requires time for a proper reformation of conscience and that he would benefit in the meantime from provisional and private reception of the sacraments. The penitent must exhibit “a sincere search for God’s will and a desire to make a more perfect response to it” (§300). If not the dissolution of the irregular union or its canonical regularization, this “more perfect response” is likely a resolution to live in continence – a resolution to be adopted as soon as conscience permits. By arguing thus, Pope Francis has expanded the ability of the Church to address the subjective dimension of irregular unions.
Regarding the objective dimension, Orthodox practice is exemplary in addressing the objectively scandalous aspect of second and third unions. The rite for contracting them is explicitly penitential, and many Orthodox jurisdictions require a period of penance. By these means, the Orthodox Church seeks to allow her children to make reparation for the “objective harm to the ecclesial communion” caused by their subsequent unions – here I have borrowed the language of the 2000 Declaration of the Pontifical Council for Legislative Texts cited above.
Not seeking to bless subsequent unions but appealing to Orthodox practice nevertheless, participants at the Papal Synods of 2014 and 2015 asked whether divorced and remarried Catholics might be permitted to return to public participation in the sacraments after a period of penance. They also appealed to the 87th canon of the Council in Trullo, which allowed Christians in a second union to return to communion after six years of penance. Perhaps because the discussion at the time did not adequately distinguish between the subjective and objective dimensions of canonically irregular unions, the suggestions were not pursued.
However, now that Pope Francis has addressed the subjective aspect of such unions more thoroughly, the Catholic Church could consider these suggestions again. For example, guided by both Familiaris Consortio and the 87th canon of Trullo, remarried Catholics who have resolved to live in continence could be invited to return to public participation in the sacraments after having abstained from public reception of the Eucharist and observed suitable penance over a period of six years. In this way, both the subjective and objective dimensions of their irregular unions are addressed.
Perhaps even Catholics who persist in adulterous relations but who are engaging with their confessors in the process of discernment recommended by Amoris Laetitia could begin to observe a similar period of six years of suitable penance. If at the end of six years a couple remains in a canonically irregular union but they have resolved to live in continence, then they could return to public participation in the sacraments. If at the end of six years they remain in the canonically irregular union and have not yet resolved to live in continence, they could return to public participation in the sacraments provisionally, with the discreet permission of their confessors. In this way too, both the subjective and objective dimensions of their situations are addressed.
If Catholics were ever to accept this last arrangement as a permissible pastoral response to certain situations of divorce and remarriage, they would then have a strong analogy with which to approach the Orthodox practice of permitting second and third unions. In fact, to bring the two practices very close together, they might then make only two requests of the Orthodox: first, that the Orthodox standardize across jurisdictions a requirement to abstain from public reception of the Eucharist and to observe suitable penance for a fixed period, in the spirit of the 87th canon of Trullo; and second, that the Orthodox clarify that second and third marriages are permitted from moral necessity – i.e. because conscience commands them as a necessary means, according to the subjective judgment of the particular faithful, for avoiding worse sins – and consequently that couples in second or third marriages should resolve to live in continence when conscience no longer judges sexual relations to be morally necessary. The standardization of penitential practices would address the problematic objective component of subsequent unions, and the clarification of how the Church can permit such unions would address their problematic subjective component. Neither of these departs from Orthodox tradition but would rather serve to strengthen Orthodox witness to the indissolubility of Christian marriage.
If Catholics and Orthodox were to achieve agreement like this in understanding and practice, some differences between Eastern and Western pastoral approaches would remain. For example, the Roman Rite will likely never develop a rite to bless subsequent unions. And canonical procedures will differ – perhaps some Eastern jurisdictions would employ both sets of canonical procedures, those that end with a declaration of nullity and those that end with a certificate of free state, just as do the Orthodox and Oriental Orthodox jurisdictions in Lebanon today. Despite the remaining differences in pastoral approaches to divorce and remarriage, a consensus like the one sketched above would bring into harmony the Christian East and the Christian West regarding who may receive the Eucharist and what the Church expects of the faithful. This would resolve one more place of Catholic-Orthodox tension and further illuminate our future in communion.