Jesus's stand on divorce

This series of articles is divided into four parts. Part 1 attempts to clarify the original meaning of what Jesus said about marriage. Although he objected to the contemporary practice of separation, nevertheless what he says may not simply be taken at face value as law. In the course of Catholic tradition, a process of application to concrete instances has taken place.

Part 2 focuses on a personalist approach to marriage. Vatican II's Pastoral Constitution on the Church in the Modern World has a strongly personalist tone on marriage but, somehow, 40 years on, legalities and philosophical abstractions about marriage are still the order of the day under the present pontificate.

Part 3 tackles the issue of the divorced in second marriages and the reception of the Eucharist. While, on the one hand, the Church exhorts them to come home, on the other hand she bars them from coming around the table of the Lord to receive the Eucharist. These couples have a number of options to choose from if they ardently wish to be full members of the Eucharistic community.

Part 4 tackles the sensitive issue of the role of the Catholic politician and the introduction of divorce in Malta. What is paramount in our politicians' system of beliefs and values: Rome or their informed conscience; their party leader or their constituents; the common good or their own political self-interests? A call for a political consensus on the issue of divorce is presented.

Although this series expresses my own personal and sincerely-held views, they are the fruit of extensive readings and studies as well as of wide-ranging marital counselling in Malta and abroad over many years.

I am convinced that the Church needs to be far more humble in her approach to marriage and divorce, and to listen more attentively and compassionately to the experience of couples whose marriage has irrevocably broken down.

In particular, the Catholic Church, as Mother, needs not only invite her "erring children" home, particularly those living in so-called irregular marriages, but also to listen assiduously to their grief and anxieties and to let them partake of the Lord's Supper.

Moreover, I think that, in the spirit of Vatican II, the Church, in its stand on divorce, needs to reflect earnestly on the teachings and practice of our separated Christian brethren, particularly those of the Orthodox Church, to learn from and be sensitive to the plurality of cultures she has had to deal with in her missionary work over the centuries, and to be more daring in her approach and use of the secular sciences, especially of psychology and sociology.

Further, the Church will need to look with less scepticism at the very often hidden but sterling work of her established and reputable theologians and canonists worldwide, and to give them lawful freedom of inquiry, freedom of thought and of expressing their mind with humility and fortitude in matters on which they enjoy competence.

I have often wondered why, in the wake of Humanae Vitae, a number of Bishops' Conferences worldwide openly declared their responsible dissent about some of its teachings, and yet today the bishops' right to object to ultra-conservative teachings in papal decrees, apostolic exhortations, encyclicals and whatnot seems to have suffered a deadly blow.

Jesus on marriage and divorce

What did the historical Jesus say on the issue of marriage and divorce? The New Testament texts in question are Jesus' teaching in Mark 10: 2-12 and its parallel in Matthew 5: 31-32 and Matthew l9: 3-12, Luke 16:18, and Paul's teaching in 1 Corinthians 7: 10-16.

A study of these full texts, which is not within the scope of this article, manifests simultaneously a deep unity and an undeniable diversity. The deep unity is based on the concern to uphold the normative vision of the sanctity of marriage, which is evident in all the texts. Hence, any allowance from the norm is a matter of exceptional consequence. For example, Mark and Luke categorically prohibit divorce under all circumstances, whereas Matthew and Paul both allow for exemptions to the rule.

Jesus's contemporaries were divided on the grounds sufficient for divorce. Deuteronomy 24: 1 stated that a man could divorce his wife "because he had found something indecent in her". Followers of Rabbi Shammai maintained that this referred to adultery. The disciples of Hillel permitted divorce for less serious reasons, such as a woman's inability to cook. The law was patriarchal and polygamous. Only the man had the right to divorce his wife. A wife could only, in exceptional cases, and indirectly, bring about her own divorce.

Against this background, Jesus's reply is clear. He rejected this unjust, legalistic, sexist attitude altogether. True to his characteristic impatience with half-hearted, half-baked and one-sided solutions, he proclaimed a new ideal of marriage.

It is a bond that unites two persons exclusively for life. No person should interfere with this. The question of divorce obstructs the perfect ideal of marriage as it had been from the beginning. Mark 10: 1-12.

An absolute law?

To understand Jesus's sayings, we must compare them with other sayings of his in which he shows his attitude to the law. If we do this, we see that his words are no more absolute law that knows of no exception than his condemnation of a person calling his brother "renegade" (Matthew 5: 23) or of oath-taking (Matthew 5: 33, 34a, 37) or of committing adultery in one's own heart (Matthew 5: 27).

For instance, Jesus explicitly and categorically tells us that anyone calling his brother "renegade" would have to "answer for it in hellfire". He also tells us not to swear at all. If this is taken as an absolute law, we would not be allowed, under any circumstance, in court or in church, to take an oath. How many good Catholics would tear out their right eye and throw it away because it causes them to sin lustfully? Why then, should Jesus' teaching on divorce admit of no exception?

In his teaching on divorce Jesus does not lay down a law, but rather reveals the reality of marriage, and does so precisely in opposition to any legal narrowing of the issues. Jesus made manifest the irrevocable unity of marriage. It is likely that the Marcan community wanted to ground this unity in an appeal to Genesis 1, 2 by going right back to God's creative act.

The theological understanding "What God has put together let no man put asunder" follows clearly from that. Therefore, separation, too, not just divorce and remarriage, disrupts God's original plan. But if this strong demand of marriage was to take effect in the community it would have to undergo in the course of the Christian tradition a process of application to concrete instances.

The Pauline Privilege

Paul was confronted with a new question for Christians of his day: how should they judge the divorce of pagan-Christian marriages? He made it clear that the Christian is bound to keep the Lord's commandment if the pagan party does not want to divorce. But if his or her partner does want it, the Christian is released from his or her commitment.

For Paul this was not a concession, or an attempt on his part to circumvent the "commandment". His decision presupposed theological understanding, great integrity and independence of thought and behaviour, and guidance from the Holy Spirit.

At the end, Paul was convinced that the Christian is called to peace and freedom. The freedom Paul preached was based on the very nature of the dignity of the human person, which Jesus had proclaimed, and not on a non-existent equality among the religions or cultural systems of his own time.

Paul's pastoral approach led the Catholic Church, centuries later, to adopt what is nowadays known as the Pauline Privilege. According to the Code of Canon Law: "In virtue of the Pauline Privilege, a marriage entered into by two unbaptised persons is dissolved in favour of the faith of the party who received baptism, provided the unbaptised party departs.

"The unbaptised party is considered to depart if he or she is unwilling to live with the baptised party, or to live peacefully without offence to the Creator, unless the baptised party has, after the reception of baptism, given the other just cause to depart" Canon 1147.

In effect, the Pauline Privilege releases the baptised party from the marital bond and allows him or her to remarry. It is interesting to note at this stage that by the Pauline Privilege even a consummated marriage between pagans can be dissolved if one partner is converted and the other will no longer live with him or her in the spirit of natural moral law.

Historical development

There have been many instances in the history of the Catholic Church when an unconsummated marriage of two baptised persons has been dissolved by the solemn profession of religious vows, or instances when the Pope, for a just reason, at the request of both baptised parties or of either party, even if the other is unwilling, dissolved a sacramental marriage.

An instance of this is the dissolution of Lucrezia Borgia's marriage to Giovanni Sforza. Lucrezia swore that the marriage had not been consummated. Giovanni, at first, protested that this was untrue but, apparently under pressure from his family, he made a declaration in writing that there had been no consummation.

Then, there have been cases of polygamous marriages. In the brief Romani Pontificis (1571), Pius V deals with often-married Indians converted to the Church and permitted to retain not the first wife but the wife who is baptised with them.

In the brief Populis ac Nationibus, Gregory XIII provided that slaves brought across the sea and separated from their wives might, after baptism, be allowed to marry again, if contact had been lost with the first partner; then, marriages would be valid even if it later proved that the first partners had themselves been baptised before the second marriage.

The Catholic Church has, until recently, come across a number of polygamous marriages in so-called missionary countries. The 1983 Code of Canon Law states that when an unbaptised man, who simultaneously has a number of unbaptised wives, has received baptism in the Catholic Church, if it would be a hardship for him to remain with the first of his wives, he may retain one of them, having dismissed the others. Indeed, the same applies to an unbaptised woman who simultaneously has a number of unbaptised husbands.

In all cases, the local bishop is to ensure that adequate provision is made, in accordance with the norms of justice, charity and natural equity, for the needs of the first wife and the others who have been dismissed.

Summary

What we can deduce from the foregoing may be put together this way:

1. Even though Jesus seems to have spoken in absolute and exclusive terms about marriages, one should not rush to the conclusion that no exception is possible.

2. Having received all authority from him, the Catholic Church can give a definitive interpretation which correctly expresses the mind and words of Jesus.

3. The delicate and complex nature of morality and marital law, as well as the new situations that continually arise in connection with missionary activity and changing customs, has caused the Catholic Church to reflect long and carefully to extend the vicarious power of the Pope in line with the Apostolic tradition.

4. Any so-called 'deviations' from Jesus' norm, have been made either on the principle of the lesser evil or in the interest of faith.

5. These 'deviations' have, at times, included the severance of the marital bond even in cases of sacramental marriages. However, there is no record of the Catholic Church having ever rescinded ratified and consummated sacramental marriages.

My next article will focus on a personalist approach to marriage.

Frank Muscat, MA, Ph.Lic., S.Th.Lic., CQSW, is a former member of the Inner and North London Panel of Guardians ad Litem and Reporting Officers and a former member of the Law Society Child Care Panel. He worked in the High Court and in the Family Proceedings Court in London. He also worked in the Ecumenical Chaplaincy of Queen Mary College, University of London. From 1996 to 1998 he was chairman of the Children and Young Persons Advisory Board in Malta. He has also been a family counsellor and an assistant of the Juvenile Court since 1996.

Jean-Luc Portelli is a 17-year-old student at St Aloysius' College Sixth Form, and enjoys drawing as a hobby. The grandson of the late artist Frank Portelli., he was commissioned specially to draw the illustrations accompanying this series. You can see more of his work on http:// beam.to/chocolatefox/ or contact him at jean-luc@portellimalta.net.